Cornell University Library 
 KF 154.A512 
 The American and English encyclopedia of 
 
 3 1924 017 069 984 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924017069984 
 
THE 
 
 American and English 
 
 ENCYCLOPAEDIA 
 
 OF 
 
 LAW. 
 
 COMPILED UNDER THE EDITORIAL SUPERVISON OF 
 
 JOHN HOUSTON MERRILL. 
 
 Late Editor of the American and English Railroad Cases and the American and 
 English Corporation Cases. 
 
 VOLUME I. ,-;, 
 
 NORTHPORT, LONG ISLAND, N. Y.: 
 
 EDWARD THOMPSON, 
 
 Law Publisher. 
 1887. 
 
' Copyright, i8 
 By EDWARD THOMPSON, 
 
 Dbummonp & Neu, 
 
 JYinters. 
 
 1 to 7 Hagu.' Street, 
 
 New Yore. 
 
PREFACE. 
 
 It is the purpose of this work to supply in convenient form 
 the whole body of modern law. There are several excellent law 
 dictionaries : but this is not a law dictionary. There are countless 
 text-books upon every branch of the law, but only large law 
 libraries can supply them all. Even in libraries the very wealth 
 of material is confusing. Chief-Justice Sharswood once remarked, 
 " The difficulty, in our profession, is not so much to know the 
 law, as to know where to find it." The investigations of those 
 engaged upon this work have led to the belief that it will be 
 practicable to produce within the compass of compatiatively few 
 volumes a real Encyclopaedia of Law. In so novel an undertaking 
 the plan adopted should be entitled to explanation and considera- 
 tion. 
 
 Even the best text-books devote valuable space to what is 
 of little practical use to the profession. Page after page of argu- 
 ment, of the author's individual opinion, or of comparison of cases, 
 the busy lawyer seldom reads. His search is for the fountain- 
 lieads of the law, — the cases themselves. However much he may 
 respect, and on occasion carefully study, the arguments and opin 
 ions of the text-writer, the chief daily use of his library of text- 
 books is as digests to the cases. It is therefore believed that 
 among books which are the products of the ablest minds, and the 
 results of years of study, a practical law library of accepted prin- 
 ciples of law, supported by the citation of many if not of all the 
 cases on the various subjects, will have its place. The accomplish- 
 ment of this purpose within a reasonable compass involved a 
 ipodification of the style in which most text-books are written. 
 The whole body of the law is divided into such titles as seem 
 
PREFACE. 
 
 capable of separate treatment. In the choice of these, prominence 
 has been given to subjects upon which no text-book has been 
 written, or which have received only incidental and perhaps meagre 
 treatment in standard works. Every title which is not practical, 
 or which belongs to the obsolete or purely local law, is rejected. 
 In the subdivision of branches of the law the effort has been to 
 make the arrangement of the work really alphabetical. Thus, in- 
 stead of devoting a volume to the subject of CORPORATIONS, for 
 example, what belongs to that law will be found under such 
 heads as Amotion, Beneficial or Benevolent Associations, 
 Building Associations, Stock Assessment, Stock Transfer, 
 etc. So the reader need not search through a long title on IN- 
 SURANCE to find a special treatment of Accident Insurance, 
 nor through such titles as Deeds, Mortgages, etc., for the law 
 of Acknowledgments. In the preparation of an article a care- 
 ful and logical analysis is first insisted upon. This forms a sum- 
 mary of what follows -and makes reference to the sub-headings 
 easier. Further subdivisions in the notes are marked by catch- 
 words at the beginning of paragraphs. The text itself is made as 
 concise as a full and clear statement of the law will allow, the aim 
 being to use not one unnecessary word, and to have the text 
 occupy but a small portion of each page. The bulk of the work 
 consists of notes. They fill so large a proportion of the space as to 
 make the amount of material in a volume very large. They differ 
 from the ordinary text-book notes in being much more than simple 
 collections of cases which must be examined to determine the cor- 
 rectness of the statements in the text. A short summary of the 
 facts of a case, an extract from an opinion, or the writer's own 
 synopsis of the points decided will often furnish to the reader who 
 has not time or opportunity to examine the report itself, all that 
 he desires. In the skill and accuracy with which this is done will 
 lie much of the value of the work. The space gained by these 
 peculiarities of style makes possible a very complete collection of 
 cases upon each topic treated. Where the cases upon a given point 
 are so numerous as to render a selection necessary, choice is made 
 
FREE ACE. 
 
 of such examples as will put the local practitioner in possession of 
 the line of decisions of special value to him. The citations are 
 made with great care, the aim being to collate as many of the 
 cases as is possible, and particularly to secure all the leading and 
 latest cases up to the date ,of publication. Conflicting decisions 
 are noted and, if possible, the views held in the different States 
 pointed out. Appended to every article of any length will be 
 found a list of such text-books, law articles, notes to series of an- 
 notated reports, etc., as have been used in its preparation, which 
 will serve the double purpose of making proper acknowledgment 
 to authors and referring the reader to all sources of information. 
 
 A feature of the work which seems worthy of particular men- 
 tion is the collection of adjudged words and phrases. Many of 
 these will be found valuable as presenting an authoritative defini- 
 tion of the legal meaning of words and phrases. 
 
 The novelty of the plan and, it is believed, its practicability 
 will be conceded. The work must speak for itself. It is only fair, 
 however, to those engaged upon the undertaking, that the Editor 
 should add a word of explanation. While the work only professes 
 to be a compilation, and all original ideas and personal opinions 
 are rigidly excluded, there is room left for the display of much 
 literary skill in the selection and arrangement of material, and for 
 the exercise of great industry and intelligence in opening up paths 
 through what have proved in many cases to be almost untrodden 
 fields. If the profession find in this work a value commensurate 
 with the diligence and care bestowed upon it by a staff of writers 
 most of whom have already met with a favorable reception, and 
 some of whom have taken high rank as authorities upon particular 
 branches, the credit is due to them. 
 
 J. H. M. 
 
 Philadelphia, Pa. 
 
 Aprils, 1887. 
 
 vii 
 
THE 
 
 AMERICAN AND ENGLISH 
 
 Encyclopedia of Law. 
 
 ''A" 
 
 -The particle " A " is not necessarily a singular term ; it 
 is often used in the sense of " any," and is then applied 
 to more than one individual object.* 
 
 ABANDON— ABANDONMENT. ~ See ADVERSE POSSESSION; DI- 
 VORCE ; Easement ; Eminent Domain ; Fixtures ; High- 
 ways; Homestead; Insurance; Mines and Mining; 
 Personal Property ; Public Lands ; Shipping. 
 
 1. Definition. — The relinquishment or surrender of rights or prop- 
 •erty by one person to another.** A giving up ; a total desertion.' 
 Absolute relinquishment.* Abandonment includes both the inten- 
 tion to abandon and the external act by which the intention is 
 ■carried into effect.^ 
 
 1. Nat. Union Bank v. Copeland, 141 
 Mass. 257. 
 
 " A" Sea, — After the sailing of a vessel, 
 an agent for insurers inserted in the 
 " live-cattle clause" of a policy issued to 
 -cover such vessel, among the dangers in- 
 sured against, any loss occasioned by " a 
 sea." Held, that this did not limit insured 
 to a loss occasioned by the force of a 
 single wave, and that where cattle were 
 -carried between decks, and were injured 
 by the tossing of the ship by heavy waves, 
 it would render insurers liable. Snowden 
 V. Guion, loi N. Y. 458. 
 
 " A " Boom that is Improved and Suit- 
 able. — A written contract to furnish "a 
 room that is improved and suitable" for 
 ■ a certain purpose is fulfilled by furnish- 
 ing such a room, a<id parol testimony is 
 not admissible to show that some partic- 
 ular room was intended by the contract- 
 ing parties. Thompson v. Stewart, 60 
 Iowa, 223. 
 
 " A " Year's Bent. — " One year's rent " 
 and ■• a year's rent " are used in the stat- 
 ute to denote the amount of rent to be 
 -distrained" for in the oiia case and to be 
 paid or secured in the other. And it 
 matters not for what year it accrued, or 
 whether it was before or after the crea- 
 tion of the lien, or whether or not other 
 rents may have accrued after the lien was 
 -created and been paid by the tenants. 
 As long as any rem arising under the 
 tenancy remains unpaid by the persons 
 liable therefor, as soon as it becomes due 
 the- person entitled to it may distrain the 
 .goods for an amount not exceeding the 
 I C. of L.— I 1 
 
 rent for a year. Wades v. Figgatt, 75 
 Va. 575. 
 
 " A " Bailroad leading to M, em- 
 braces not oniy a railroad whose line 
 reaches M. or " terminates" at that place, 
 but a railroad connecting either directly 
 or by way of another railroad whose line 
 reaches M. and "terminate?" at that 
 place. State v. Hastings, 24 Minn. 78. 
 See Hostrup v. Madison City, i Wall. 
 (U. S.) 291. 
 
 2. Bouvier's Law Diet. 
 
 3. Stormonth's Diet. 
 
 4. Webster's Diet. 
 
 5. As where an article is thrown away. 
 McGoon V. Ankeny, 11 111. 558. It may 
 be inferred from mere lapse of time. 
 Brentlinger v. Huchison, t Watts (Pa.), 
 46. See Smoot v. Wathen, 8 Mo. 522. 
 
 To constitute an abandonment there 
 must be the concurrence of the intention 
 to .abandon, and the actual relinquish- 
 ment of the property, so that it may be 
 appropriated by the next comer. Jud- 
 son V. Malloy, 40 Cal. 299. 
 
 Intent. — As intent is the essence of 
 abandonment, the facts of each particu- 
 lar case are for the jury. 2 Washb. Real 
 Prop. (4th ed.) 370; 40 Am. Dec. 464; n.. 
 Dyer v. Sanford, 9 Mete. (Mass.) 395; 
 Clemmins v. Gotshall, 4 Yeates (Pa.), 
 330; Miller v. Cresson, 5 Watts & S. 
 (Pa.) 284; Heath v. Biddle. g Pa. St. 
 273; Wiggins V. McCleary, 49 N. Y. 346; 
 Bell V. Smith, 2 Johns. (N. Y.) 98 ; 
 Wilson V. Pearson, 20 111. 81 ; McGoon 
 V. Ankeny, 11 111. 558 ; Hazelbaker v, 
 Goodfellow, 64 111. 238 ; Taylor v. 
 
Definition. 
 
 ABANDONMENT. 
 
 Definition^ 
 
 Property is said to be abandoned when it is thrown away, or 
 its possession is voluntarily forsaken by the owner, in which case 
 it will become the property of the first occupant ; or when it 
 is involuntarily lost or left without the hope and expectation 
 of again acquiring it, and then it becomes the property of the 
 finder, subject to the superior claim of the owner; except that 
 in salvage cases, by the admiralty law, the finder may hold pos- 
 session until he is paid his compensation, or till the property is- 
 submitted to legal jurisdiction for the ascertainment of the com- 
 pensation.^ 
 
 Hampton, 4 McC. (S. Car.) 96 ; Parkins 
 V. Dunham, 3 Strob. (S. Car.) 224; Banks 
 V. Banks, 77 N. Car. 186; Weill v. Lu- 
 cerne M. Co., II Nev. 200; Myers v. 
 Spooner, 55 Cal. 257 ; Marquart v. Brad- 
 ford, 43 Cal. 526; Smith v. Gushing, 41 
 Cal. 97; Bell z;. Red Rock, etc., Co., 
 36 Cal. 214; Moon v. Rollins, 36 Cal. 
 3^3 ; Davis w. Perley, 30 Cal. 630: Rob- 
 erts V. Unger, 30 Cal. 676 ; Masson v. 
 Anderson, 59 Tenn. 290 ; Landis v. Per- 
 kins, 14 Mo. 238. See Sample v. Robb, 
 16 Pa. St. 305 ; Atchinson v. McCuUoch, 
 5 Watts (Pa.), 13. 
 
 Where the owner of a tannery sold 
 it, but forgot to remove some hides 
 which had been placed in the vats for 
 tanning, and some years afterwards they 
 were found, held, they were not aban- 
 doned. Livermore v. White, 74 Me. 
 452; s. c. 43 Am. Rep. 600. 
 
 Plaintiff raked into heaps, intending to 
 remove it, manure that had accumulated 
 in a street the fee of which was in the 
 borough. Before he could do so, and 
 within twenty-four hours, defendant 
 carted it away. Held, that plaintiff could 
 maintain trover ; that the manure origi- 
 nally belonged to the travellers whose ani- 
 mals had dropped it, but was abandoned 
 by them. Haslem v. Lockwood, 37 
 Conn. 500; s. c, 9 Am. Rep. 500. 
 
 An abandonment of realty will be pre- 
 sumed where the party leaves no prop- 
 erty or improvement to indicate his 
 intention to return and resume the oc- 
 cupancy of the land ; as, for instance, 
 buildings, though not occupied, kept in 
 good repair; and fields, though not under 
 immediate cultivation, kept properly 
 fenced, so as to exclude marauding cattle. 
 Burke v. Hammond, 76 Pa. St. 172. 
 
 Where a vessel was sunk in November, 
 and was found by the defendants in the 
 following August, a verdict that tlie 
 property was abandoned at the time 
 when converted by the defendants was 
 sustained. Wyman v. Hurlburt, 12 Ohio, 
 82. 
 
 Property sunk in a steamboat and un- 
 
 claimed for twenty years held to be 
 abandoned. Creery v. Breedlove, 12 
 La. Ann. 745. See Eads v. Brazelton, 
 22. Ark. 429. 
 
 The payment of taxes by the defendant 
 is no evidence of abandonment by the 
 plaintiff. Davis v. Perley, 30 Cal. 630. 
 See Keene v. Cannovan, 21 Cal. 291;. 
 Mayor v. Riddle, 25 Pa. St. 259. 
 
 A gift is not an abandonment. Rich- 
 ardson V. McNulty, 24 Cal. 339. 
 
 Abandonment of property divests the 
 owner of his title therein, and. the finder 
 who reduces the same to possession after 
 such abandonment is not guilty of con- 
 version. Wyman v. Hurlburt, 12 Ohio,. 
 8i; s. c, 40 Am, Dec. 461. 
 
 Wherever abandonment can take eilect, 
 it simply destroys the title and does not 
 vest, it ya another. A bargain to give up. 
 an equitable claim may work an aban- 
 donment, but the bargainee acquires no. 
 title by the bargain. A legal title, prop- 
 erly vested, can only be divested by 
 abandonment, when the circumstances 
 of the case are sufficient to raise an 
 estoppel, or where the possession is 
 acquired by one in consequence of the 
 abandonment, and held by him under 
 claim of title for the period of limitation. 
 The title, although not lost by abandon- 
 ment, would be barred by estoppel or by 
 the Statute of Limitations. The volun- 
 tary abandonment would not prevent the 
 possession of another from becoming 
 adverse to the real owner, though the 
 abandonment was expressly made for his 
 benefit and to him. But where the 
 abandonment is not accompanied by the 
 circumstances of estoppel or limitation, 
 no matter how formal the abandonment 
 was, if it fell short of a legal deed of con- 
 veyance, it has no effect whatsoever upon 
 the legal title. The owner may after- 
 ward re-enter and eject anyone who may 
 have entered into possession in reliance 
 upon the abandonment. Tiedeman Real 
 Prop. § 739. 
 
 1. Eads V. Brazelton, 22 Ark. 499. 
 
In Bivorce. 
 
 ABANDONMENT. 
 
 Of Cluld. 
 
 2. In Divorce.— It is the act of wilfully leaving a wife, with in- 
 tent to cause a palpable separation from her, and implies an actual 
 desertion of the wife by the husband.^ (See Divorce.) 
 
 3. Office. — An office created by statute can only be abandoned 
 in the manner prescribed by statute.** 
 
 , 4. Insurance. — In marine insurance abandonment is effected by 
 giving express and unconditional notice to the underwriter within 
 a reasonable time after the assured has received . intelligence of 
 the loss, and its effect is to transfer the whole property and in- 
 terest in the thing insured to the underwriter.* (See INSURANCE, 
 Marine.) 
 
 5. Of Eights. — Is where a person ceases to exercise a right. The 
 term is principally used with reference to easements, profits k 
 prender, and similar rights, which may be extinguished by non- 
 user for a certaip number of years ; but the non-user must be of 
 such a nature as to show an intention to abandon the right, as 
 where it amounts to an acquiescence in an unlawful interrup- 
 tion.* 
 
 6. For Torts. — Is the transfer of an animal or slave which has 
 injured a person, in discharge of the owner's liability.^ 
 
 7. Of Child. — If one exposes or abandons a child, incapable of 
 taking care of itself, to cold or wet, whereby it receives an injury, 
 he is indictable for misdemeanor ; or if the child dies, for a felo- 
 hious homicide.* 
 
 1. Stanbrough ». Stanbrough, 6o Ind. 
 275- 
 
 2. For a judge to say he abandons his 
 office, or to neglect its duties, or to en- 
 gage in the practice of law contrary to a 
 statute, will not constitute an abandon- 
 ment of his office. State v. Seay, 64 Mo. 
 89 
 
 The acceptance of the office of justice 
 of the peace for the township of T.' while 
 holding that office for the precinct of L. 
 vacates and is an abandonment of the 
 latter. Eddy v. Peoria County, 15 111. 
 375- 
 
 S. Sweet's Law Diet. The principle is 
 applicable in fire insurance, where there 
 are remnants, and sometimes also under 
 stipulations in life policies in favor of 
 creditors. Bouvier's Law Diet. ; 2 Phil- 
 lips on Ins. §§ 1490, 1514, 1515. (See 
 Insurance, Fire.) 
 
 4. Sweet's Law Diet. ; 2 Washb. Real 
 Pr. 83-85. See Dyer v. Sanford, 9 Mete. 
 (Mass.) 395; Emerson v. Wiley, lo Pick; 
 (Mass.) 310; William v. Nelson, 23 Pick. 
 (Mass.) 141 ; Canney v. Andrews, 123 
 Mass. 155 ; Parkins v. Dunham, 3 Strob. 
 (S. Car.) 224; Carlisle v. Cooper. 4 C. E. 
 Green (N. J.) 261; Crain v. Fox, 16 
 Barb. (N. Y.) 184; Corning v. Gould, 16 
 
 Wend. (N. Y.) 531 ; Davis v. Gale, 32 
 Cal. 27 ; Dyer v. Depui, 5 Whart. (Pa.) 
 584; Mowry v. Sheldon, 2 R. I. 369. 
 
 5. Brown's Law. Diet.; Bouvier's Law 
 Diet.; Hynson v. Meuillon, 2 La. Ann. 
 798 ; Arnoult v. Desehapelles, 4 Id. 41. 
 
 6. I Bishop's Cr. L. (7th ed.) §§ 557, 
 883. B, A's wife, living apart from A, 
 leaves C, their child, nine months old, 
 lying in the road outside A's door. A, 
 knowing its position, lets it lie therefrom 
 7 P.M. till I A.M. A's mother, D, know- 
 ing the child is there, and being in her 
 house, acts in the same way as A A 
 has abandoned and exposed C; but D has 
 not, as she was under no legal obligation 
 to take charge of C. A sends B, her 
 child, five weeks of age, packed up in a 
 hamper as a parcel, by railway to C, B's 
 putative father, giving directions to the 
 clerk to be very careful of the hamper 
 and send it by the next train. The child 
 reaches C safely. A has abandoned and 
 exposed B. Stephen's Dig. Cr. L. (Am. 
 ed.) 202; R. V. Falkingham, L. R. i C, 
 C. 22?. 1 
 
 It does not mean a mere temporary ab- 
 sence from home, or temporary neglect 
 of parental duty. State v. Davis, 70. Mo. 
 467. 
 
What may be. 
 
 ABANDONMENT. 
 
 What may he. 
 
 8. What may be. — Possession of land ^ (see Adverse POSSES- 
 SION). Proceedings to condemn land * (see EMINENT DOMAIN). 
 
 1. To constitute an abandonment of 
 land there must be a concurrence of the 
 act of leaving the premises vacant, so 
 that they may be appropriated by the 
 next-ccmer, and the intention of not 
 returnmg. If the intention was not 
 manifested by leaving the possession 
 vacant, without the intention of return- 
 ing, there was no abandonment. Judson 
 1/. Malloy, 40 Cal. 309. 
 
 2. Abandonment of Condemnation Pro- 
 ceedings. — Condemnation proceedings 
 may be abandoned by the corporation 
 conducting them with even greater free- 
 dom than a plaintiff in an ordinary suit 
 can take a nonsuit and discontinue. 
 There are several reasons for this. It is 
 often entirely in the discretion of the 
 corporation, especially if it be a munici- 
 pality, whether it will open the road 
 sought to be condemned, and even after 
 opening it the corporation may vacate 
 the road and close it. Again, before 
 payment of compensation no title passes, 
 and the corporation has no right to the 
 land, and until it has such right the land- 
 owner has no right to compensation and 
 cannot compel payment of it. It may 
 be laid down as a general rule that con- 
 demnation proceedings may be discon- 
 tinued at any time- before confirmation 
 of the award of compensation or final 
 judgment. In re Mayor, etc.. 4 Rob. 
 (La.) 35; In re Canal St., 11 Wend. (N. 
 Y.) 154; People V. President, etc., I 
 Wend. (N. Y.) 318; In re Anthony St., 
 20 Wend. (N. Y.) 619; In^re Dover St., 18 
 Johns. (N. Y.) 506; Hudson, etc., R. 
 Co. V. Outwater, 3 Sandf. (N. Y.) 689; 
 In re Syracuse, etc., Co., 11 N. Y. Su- 
 preme Ct. 311; Blackshire v. Atchison, 
 etc., R. Co., 13 Kan. 514; North Mis- 
 souri R. Co. v. Lackland, 25 Mo. 516. 
 Or before trial. Burlington, etc., R. Co. 
 V. Sater, l Iowa, 421; Lancaster v. Ken- 
 nebec L. D. Co., 62 Me. 273; State v. 
 Keokuk, 9 Iowa, 439; Dayton, etc., R. 
 Co. V. Marshall, 11 Ohio St. 497. 
 
 Indeed, it has been held that if after 
 verdict the company gives notice of its 
 mtention to abandon the proceedings, 
 the court cannot give judgment in favor 
 af the landowner, even though it has 
 confirmed the verdict. State v. Cincin- 
 nati, etc., R. Co., 17 Ohio St. 103; 
 Chicago V. Barbian, 80 111. 482. And even 
 after judgment the company may aban- 
 don. Bloomington v. Miller, 84 111. 621; 
 St. Louis, etc., R. Co. v. Teters, 68 111. 
 144; New Bedford v. Commissioners, 
 9 Gray, (Mass.) 346. It is said that the 
 
 judgment assessing the amount of dam- 
 ages passes no title to the company and 
 does not bind it to accept the lands and 
 pay the amount assessed. Gear v. 
 Dubuque, etc., R. Co., 20 Iowa, 524. And 
 abandonment has been sanctioned even 
 after appeal. Curtis v. Portland, 60 Me. 
 55- 
 
 Even purchasers from the condemning 
 company cannot compel it to take the 
 property condemned, especially if so to 
 do would be injurious to the public in- 
 terests. State V. Graves, 19 Md. 353. 
 
 Owners of land have no vested right 
 in the verdict of the jury. St. Joseph v, 
 Hamilton. 43 Mo. 283. 
 
 Abandonment of road will not justify 
 recovery by the company of money paid 
 to the landowner. Stiles v. Middlesex, 
 8 Vt. 440. 
 
 A party in whose favor the commis- 
 sioner's report of damages is made can 
 have no action against the other party 
 for abandoning the proceedings by neg- 
 lecting to file the report, even though he 
 had sustained special damage. Martin 
 V. Mayor, etc.. i Hill. (N Y.) 545. See 
 also Staceyz/. Vt. Cent. R. Co., 27 Vt. 39. 
 
 Abandonment must, however, be in 
 good faith. If made because price is un- 
 satisfactory, the company will be an- 
 swerable to the landowner for all dam. 
 ages sustained by him. Leisse v. St. 
 Louis, etc., R. Co., 2 Mo. App. 105; 
 McLoughlin -v. Municipality No. 2, 5 
 La Ann. 504. 
 
 No Abandonment after Confirmation of 
 Award. — After the owner has a right to 
 surrender his property for compensation 
 the city cannot discontinue, and the 
 mayor of the city may be compelled by 
 mandamus to perform such a ministerial 
 act as the filing of the description of the 
 property with the registry of deeds, so as 
 to complete the remedy of the owner. 
 Farnsworth v. Boston, 121 Mass. 173. 
 
 Some cases, therefore, hold that after 
 confirmation of the award of damages 
 the corporation cannot abandon the pro- 
 ceedings. Examples are amongst others 
 the following: Upon report of commis- 
 sioners of damages assessed, owner is 
 entitled to amount, whether road is ever 
 opened or not, Wilkerson v. Buchanan 
 Co., 12 MO.-328. 
 
 Judgment on report of commissioner 
 fixes rights. Farmer v. Hooksett, 28 N. 
 H. 244. 
 
 No abandonment after order establish- 
 ing highway. Hupert v. Anderson, 35 
 lovVa, 578. Or after confirmation. In re 
 
 4 
 
Eminent Domain. 
 
 ABANDONMENT. 
 
 Eminent Domain. 
 
 Condemnation Froceedinga — Contin ued. 
 Rhinebeck, 67 N. Y. 242; s. c, 15 N. Y. 
 Sup. Ct. 34; People v. Syracuse, 20 How. 
 Pr. (N. Y.) 491; Stafford v. Mayor, 7 
 Johns.(N.Y.) 541; Jones v. Oxford, 45 Me. 
 419; In re Water Com., 31 N. J. L. 72. 
 
 Assessment of damages confirmed by 
 the court is judgment in favor of owner 
 of land, and he is entitled to execution, 
 even though company desire to change 
 route. Neal v. Pittsburgh, etc, R. Co., 
 31 Pa. St. 19. 
 
 After reference to a committee who 
 have reported the, amount of damages 
 there can be no abandonment. Pollard 
 V. Moore, 51 N. H. 188. 
 
 Where a railroad company upon an 
 award of commissioners have recorded 
 the order and deposited the money as 
 required by the eighteenth section of the 
 general railroad act of 1850, the title to 
 the premises taken becomes wholly 
 vested in the company. Therefore 
 where, in such a case, on a second ap- 
 praisal the compensation to the owner 
 of the land is increased by the award of 
 the commissioners, the company cannot, 
 by changing the route of their road, avoid 
 the payment of such increased compensa- 
 tion, on the ground that the premises are 
 not necessary for them. Crowner v. 
 Watertown, etc., R. Co., 9 How. Pr. 
 (N. Y.) 457. 
 
 Experimental Assessments. — As to ex- 
 perimental assessments, Mr. Mills says 
 (Mills, Em. Dom. §315): " A corporation 
 authorized to condemn land may make 
 experimental surveys, but cannot institute 
 experimental suits at law to determine 
 amounts of damages by various routes. 
 When a location is made, either party 
 may institute proceedings to assess dam- 
 ages, and the company cannot withdraw. 
 Neal V. Pittsburgh R. Co., 2 Grant Cas. 
 137; the State may go so far as to assess 
 damages and order the road to be opened 
 without paying damages, but before the 
 road is actually opened the damages 
 should be paid. Parham v. Justices, 9 
 Ga. 341. In the case of Rogers u. St. 
 Charles, 3 Mo. App. 41, the court 
 severely condemns the practice of muni- 
 cipalities in having recourse tentatively 
 to a number of juries, and in rejecting 
 such findings as are not thought reason- 
 able, and fastening upon and holding the 
 citizen to the first one which places an 
 estimate on the value of the property 
 sufficiently low. The court further say: 
 We cannot perceive what possible 
 advantage can arise from the constitu- 
 tional declaration that private property 
 shall not be taken for public use without 
 just compensation, if the State or any of 
 
 S 
 
 its deputies, .exercising the right of 
 eminent domain, may cause as many 
 inquests as it pleases of the value of the 
 property to be condemned, and set aside 
 as many of them as it sees fit, until one 
 is found sufficiently small to suit its 
 notions of a just compensation and to 
 declare it to be so. Of course this per- 
 mits one of the parties to a controversy 
 to determine a judicial question in his 
 own favor, and compels the other party 
 to submit to the decision.' Proceedings 
 may be abandoned, but 'in such cases, 
 however, the party exercising, by delega- 
 tion, the tremendous power known as the 
 right of eminent domain must act in good 
 faith. The exercise of this right can only 
 be justified on the ground of the necessity 
 of the particular property for the public 
 use. To allow the State, or any deputy 
 of the State, to pronounce a particular 
 piece of property necessary or unneces- 
 sary, according to the terms on which it 
 may be possible to acquire it; to enable 
 the State, or any corporation, to be sole 
 judge of the due correspondence between 
 the property and its variously estimated 
 value; to cause a thousand estimates to 
 be made, and to have the' unrestricted 
 right of rejecting, toties quoties, every 
 estimate which did not suit its views, 
 would be thought an extravagant idea of 
 arbitrary power if it were imagined in a 
 satire. But if the purpose, instead of 
 being abandoned in good faith, is merely 
 modified so as to make the party exercis- 
 ing the right of eminent domain to take 
 the chances of another jury, the first pro- 
 ceedings are a flat bar to such a course, 
 and this for the sufficient reason that any 
 other rule would work monstrous oppres- 
 sion and spoliation. We do not mean to 
 say that there may not be, on the part of 
 the municipal or other corporations, an 
 abandonment of a particular project in a 
 given year, let us say in the year 1870, 
 and in the year 1874 a revival of the 
 same measure. What we do mean to say 
 IS, that such a corporation shall not, 
 under the color of this power, set at 
 naught the constitutional provision that 
 just compensation shall be made for all 
 private property taken for public use.' " 
 
 Partial Abandonment. — "Although a. 
 certain portion of land is described in <>. 
 petition as necessary for the construc- 
 tion of the improvement, a certain por- 
 tion may be left out if not needed. The 
 condemning party is not estopped by fhe 
 allegation in the petition as to the quan- 
 tity of land to be taken, when its engineer 
 is of opinion that a less quantity would be 
 sufl5cient. Mills on Em. Dom. § 314. 
 
Of a Nuisance, 
 
 ABATEMENT. 
 
 Who may Abate, 
 
 A mine* (see MiNES). An easement* (see Easements). A 
 mill-site^ (see Mills). An invention* (see PATENTS). A right 
 under a land-warrant*' (see Land-WARRANTS). An application 
 for land.* A fixture'' (see FIXTURES). A homestead ^ (see H OME- 
 STEAD). a domicile® (see DOMICILE). A contract^" (see CON- 
 TRACTS). Wild animals.ii As to lost articles (see PERSONAL 
 Property). 
 
 ABATEMENT. See EQUITY ; LEGACY ; NUISANCE ; PLEADING ; 
 Practice; Tax. 
 
 \. Of a Nuisance. 
 \\. In Pleading. , 
 
 III. Of Legacies. 
 
 IV. In Practice. 
 V. Of Freehold. 
 
 VI. In Revenue Law. 
 
 1. Of a Nuisance. — 1. Definition. — The abatement of a nuisance 
 is the taking away or removing of the same by the party aggrieved 
 thereby.12 (See NUISANCE.) 
 
 2. Who may ahate, — The distinction met with in the old text-books 
 between the cases of a public and private nuisance, viz., that any 
 one may abate the former, but only one who sustains special dam- 
 age the latter, appears to have been entirely disregarded in the 
 
 1. Richardson w. McNuIty, 24CaI. 339. 
 
 2. Abandonment is a simple non-user 
 of an easement; and in order to malce out 
 an effectual answer to the claim upon 
 that ground, all the acts of enjoyment 
 must have totally ceased for the same 
 length of time that was necessary to 
 create the original presumption. Corn- 
 ing V. Gould, 16 Wend. (N. Y.) 531. 
 
 Mere non-user, even though for twenty 
 years, will not of itself extinguish the 
 easement. It must be accompanied with 
 the express or implied intention of 
 abandonment, and the owner of the 
 servient estate, acting upon the inten- 
 tion of abandonment and the actual non- 
 user, must have incurred expenses upon 
 his own estate. Tiedeman Real Prop. § 
 606. . 
 
 3. An express declaration by fhe owner 
 of a mill-site which has been occupied by 
 him that it is no longer his intention to 
 keep up the mill, accompanied by corre- 
 sponding acts, such as removing the 
 dam and mill, and giving notice of such 
 intention to those whose lands he has 
 flowed, and to whom he has paid dam 
 ages, will be deemed an abandonment 
 and extinguishment of the privilege; or 
 if he cease to use the mill-site for an 
 unreasonable length of time, the entire 
 and continued disuse for twenty years is 
 strong prima facie evidence of a non 
 user for an unreasonable length ol time; 
 
 and unless rebutted by clear and satis- 
 factory proof, it is conclusive. Where a 
 mill-owner suffers his mill and dam to 
 go to decay and ceases to flow the land 
 until a highway is made across the land, 
 it is an abandonment. Angell on Water- 
 courses (7th ed.) §§ 497-499. 
 
 4. Walker on Patents, §§ 87-92; Curtis 
 on Patents, § 381 et seq. 
 
 5. Emery v. Spencer, 23 Pa. St. 271. 
 
 6. Stewart v. Butler, 2 S. & R. (Pa.) 
 379; Philips V. Shaffer, 5 S. & R. (Pa.) 
 
 215 
 7, 
 8 
 9 
 
 272; 
 Kim- 
 
 E well. on Fixtures. 
 Thompson on Homesteads. 
 Dicey on Domicil, go-92. 
 
 10. G;ierdon v. Corbett, 87 III 
 Lincoln v. Swartz, 70 111. 134; 
 merle v. Hass, 53 Mich. 341. 
 
 11. Though property in an axiwnaK fera 
 naturcB may be acquired by occupancy, 
 or by so wounding it as to bring it 
 within the power and control of the 
 pursuer; yet if, after wounding the ani- 
 mal, the party continues the pursuits 
 until evening and then abandons it, 
 though his dogs continue the chase, he 
 acquires no property in it. Buster v. 
 Newkirk, 20 Johns. (N. Y.), 75. 
 
 Wild geese which have been tamed, 
 and have strayed away without regaining 
 their natural liberty, are not abandoned. 
 Amory v. Flyn, 10 Johns. (N. Y.) 102. 
 
 12. 3 Black. Com. 5. 
 
 e 
 
-Of a Nuisance. 
 
 ABATEMENT. 
 
 What may be Abated. 
 
 •modern decisions. The rule now is that any one who sustains a spe- 
 •cial injury or damage from a public nuisance to an extent that will 
 support an action at law may abate the same of his own motion, 
 ■doing no more damage than is necessary to protect his rights and 
 prevent a recurrence of damage from the nuisance abated.^ There- 
 fore, where a nuisance is of a purely public character, i.e., affects 
 public rights merely and does not damage one individual more 
 than another, there is no one who can abate, and the remedy is by 
 indictment in the courts.'-* These principles have been applied to 
 the cases of abatement of obstructions in public highways,* '„ivi- 
 •gable streams,* of dwelling-houses,^ of a noxious manufactory,* 
 •etc. 
 
 3. What Nuisances may be abated. — In general, any nuisance 
 not purely public in its character may be abated. But a 
 thing cannot be abated before it actually becomes a nui- 
 
 1. Brown v. Perkins, 12 Gray (Mass.), 
 ■83; Fort Plain Bridge Co. v. Smith, 30 
 J>r. Y. 44; Lansing v. Smith, 8 Cow. (N. 
 Y.) 146; Pierce v. Dart, 7 Cow. (N. Y.) 
 €09. 
 
 2. Earp z/. Lee, 71 111. fgs; Brightman 
 w. Bristol, 65 Me. 426. This is true of 
 Tnoral nuisances; e.g., a liquor store 
 where liquor is sold contrary to law. 
 Blodgett V. Syracuse, 36 Barb. (N. Y.) 
 529; Brown v. Perkins, 12 Gray (Mass.), 
 83; Moody V. Supervisors, 46 Barb. (N.Y. 
 S. C.) 659; Gray v. Ayres, 7 Dana (Ky.), 
 375. A disorderly house. Ely z/. Super- 
 visors, 36 N. Y. 297; Welch V. Stowell, 
 
 2 Doug. (Mich.) 125; Barclay v. Com- 
 monwealth, 25 Pa. St. 503. 
 
 3. In Dimes o. Petley, 15 Q.B. 276. 
 Lord Campbell says: " It is fully settled 
 by the recent cases that if there be a nui- 
 sance in a public highway, a private in- 
 dividual cannot of his own authority 
 abate it unless it does him a special in- 
 jury, and then only to the extent neces- 
 sary to enable him to exercise his right 
 ■of passing over the highway." See Har- 
 Tower ». Ritson, 37 Barb. (N. Y. S. C.) 
 joi; Griffith v. McCullum, 46 Barb. (N. 
 Y.) 561, Bridge z/. Grand June. R. R. Co., 
 
 3 M. & W. 244; Roberts v. Rose, \ 
 Exch. 82; Bateman v. Bluck, 18 Q. B. 
 ■870; Hubbard v. Deming, 21 Conn. 356; 
 Moffett V. Brewer, t Iowa, 348; Wales v. 
 Stetson. 2 Mass. 143; Hopkins v. Crom- 
 bie, 4 N. H. 520; Gates v. Blincoe, 2 
 Dana (Ky ), 158; Rungz/. Shonenberger, 
 2 Watts (Pa.), 23; Arundel v. McCulloch, 
 10 Mass. 70; Rogers v. Rogers, 14 Wend. 
 
 '(N. Y.) 250; Broom's Com. on Com. 
 Law (4th ed.), 222; Clark v. Ice Co., 
 ■24 Micl;. 508; Owens v. State, 52 Ala. 
 .400. Compare Burnham v. Hotchkiss, 14 
 Conn. 310, Lancaster Turnpike Co. v. 
 
 Rogers, 2 Barr (Pa.), 114; Turner v. 
 Holtzman. 54 Md. 148. 
 
 4. In Mayor of Colchester v. Brooke, 
 6 Q. B. 339, the defendant's vessel, being 
 improperly anchored, shifted on and 
 damaged an oyster-bed, which was an 
 obstruction in the stream. Lord Den- 
 man, Ch. J., said; "However wrongful 
 the act of the plaintiff may have been, 
 yet as the defendant sustained no special 
 inconvenience therefrom, he certainly 
 could not be justified in wilfully infring- 
 ing upon the beds and destroying the 
 oysters even for the purpose of abating a 
 public nuisance." "The defendant, who 
 was the owner of a boat navigating a 
 stream, ran into a net set in a private 
 fishery. Held, that if he could by reason- 
 able care have avoided the net he was 
 bound to do so, though the rights of navi- 
 gation were superior to those of fishery. 
 Cobb V. Bennett, 75 Pa. St. 326. See 
 Renwick v. Morris, 7 Hill (N. Y.), 575; 
 Arundel v. McCulloch, 10 Mass. 70, 
 Selman v. Wolfe, 27 Tex. 68. 
 
 5. The defendant with others, at a 
 time wheti Asiatic cholera was prevail- 
 ing in the country, and when the sani- 
 tajry condition of all dwellings was im- 
 portant to prevent the .spread of the 
 disease, pulled down a tenement-house 
 which was in a filthy condition. Held. 
 that " as a citizen of the Fifth Ward he 
 was interested in preserving the public 
 health, and especially as an alderman he 
 was fully justified in all he did." Meeker 
 V. Van Rensselaer, 14 Wend. (N. Y.) 397. 
 See Rex v. Pappineau. i Strange, 688; 
 Dewey v. White, i Moody & M. 56; 
 Jones V. Williams. 11 M. & W. 176. 
 
 6. Manhattan Co. v. Van Keuren, 23 
 N. J. 255; Coe V. Schultz, 47 Barb. (N 
 Y.) 64. 
 
 1' 
 
df a Nuisance, 
 
 ABATEMENT. 
 
 Uanner of Abating^. 
 
 sance,* and it must at the time it is abated be injuring the abator.'-* 
 In addition to the nuisances referred to above and in the notes as 
 abatable, the following may be mentioned : if a dam be erected 
 on a stream that pens back the water of an upper owner, he may 
 lawfully enter on the premises and abate as much of it as produces, 
 the injury ;3 if a house be erected so that its eaves overhang the 
 lands of another, he may cut off the overhanging part ;* if a nox- 
 ious trade is set up near another's dwelling, he may enter and de- 
 stroy as much of the machinery as is necessary to prevent the nui- 
 sance ;^ if a bridge is erected across a navigable stream without 
 proper draws, one trying to pass may remove as much as impedes, 
 his passage ;* an unoccupied house in such a filthy condition as to- 
 endanger health, or that has become a resort for tramps, or dan- 
 gerous in any way to adjoining buildings, may be torn down by 
 one who is injured j' dangerous and diseased animals, when suf- 
 fered to go at large by the owner, may under certain circumstances 
 be killed.* 
 
 4. Manner of abating. — A nuisance may be abated only to the ex- 
 tent to which it does injury ; any excess will render the abator a 
 trespasser.* 
 
 1. In Norrice v. Baker, i Rolle, 394, 
 Coke, C. J., says: " If a person have an 
 intent to build a wall and lay the founda- 
 tion, you cannot pull this down." And 
 Croke, J., says: "So although boughs 
 which hangover another man's land may 
 be cut, yet they cannot be cut lest they 
 hereafter grow over." See also RoUe's 
 Abr. " Nuisance." 
 
 2. Gates v. Blincoe, 2 Dana (Ky.), 158. 
 The rule in the case of a vicious animal is 
 thus laid down in Morris v. Nu<ent, 7 Car. 
 & P. 572, by Denman, J.: "To justify the 
 shooting of another's dog, it is not suffi- 
 cient to show that he is of a ferocious dis- 
 position and at large (and thus a public 
 nuisance). To justify the shooting he 
 must be actually attacking the party at 
 the time." 
 
 3. Hastings v. Livermore, 7 Gray, 
 (Mass.) 194; Treat v. Bates, 27 Mich. 
 360; Waffle V. Railroad Co., 58 Barb. 
 (N. Y.) 413; Adams v. Barney, 25 Vt. 
 231; Roberts v. Rose, i L. R. (4) 82. 
 So of changing the course of a sluiceway, 
 thereby destroying cultivated fields. 
 Thompson v. Allen, 7 Lans. (N. Y.) 459 
 
 4. Pendruddock's case, 5 Coke, 101; 
 Baten's case, 9 Coke, 55. So where rain 
 or snow is shot from the roof of a house 
 on the lands of another, the latter may 
 enter and cut off the part producing the 
 injury. Rex ;v. Pappineau, 2 Strange, 
 688; Cooper a. Marshall, i Burr. 259; 
 Rex V. Rosev-i-ll, 2 Salk. 459, Dyer v. 
 Depuie, 5 Whjrt. (Pa.) 584. So where 
 branches extend over another's land, the 
 
 8 
 
 portions overhanging may be cut off. 
 Earl Lonsdale o. Nelson, 2 Bar. & C. 
 311. 
 
 6, Manhattan Co. v. Van Keuren, 23. 
 N. J. Eq. 141. When the nuisance arises 
 from the improper use of a building, the 
 building itself/ cannot be destroyed, but 
 only the improper use stopped. Browiv 
 d. Perkins, 12 Gray (Mass.), 95. 
 
 6. State V. Parrott, 71 N. Car, 311. 
 
 7. Harvey v. Dewoody, 18 Ark. 252. 
 But not where it is occupied, as that can- 
 not be done without endfingering public 
 peace. Perry v. Fishowe, 8 Ad. & El. (N. 
 S.) 757; Davies v. Williams, 16 Ad. & 
 El. (N. S.) 546. Except where there is a. 
 violation of some one's rights and reason- 
 able notice to remove has been given. 
 Burling v. Reid, 11 Q. B. 904; Davies z*. 
 Williams, 16 Q. B., 546. Or in a great 
 public emergency. Meeker v. Van 
 Rensselaer, 14 Wend. (N. Y.) 397. 
 
 8. The dangerous animals only when 
 they are making an attack, and the dis- 
 eased ones only when they are running 
 among other animals. Williams v. Dix- 
 on, 65 N. Car. 416; Morris v. Nugent, 
 7 Car. & P. 572 Compare •Yxsx\i v. Hil- 
 terbrand, 45 Mo. I2ii But not where they 
 are simply trespassing. Bost v. Min- 
 gues, 64 N. Car. 44, Ladue v. Branch, 
 42 Vt. 574. 
 
 9. Gates ■v. Bhncoe, 2 Dana (Ky.). 
 158; Hutchinson v. Grainger, 13 Vt, 
 394; Dyer v. Depuie, 5 Whart. (Pa.) 584; 
 Jewell w. Gardner, 12 Mass. 311; Heath. 
 V. Williams. 25 Me. aog, Wright ».. 
 
In Pleading. ABA TEMENT. Kinds of Pleas, 
 
 As Lord Raymond says in Rex v. Pappineau, i Strange, 688 : 
 " If my neighbor builds his house too high, by which my ancient 
 lights are stopped, I shall not take down the whole house, but 
 only so much as makes it too high." So an abatement must be 
 made without riot or danger to the public peace. ^ In fact, the 
 remedy by abatement is a dangerous one. The party judges at 
 his peril, and is liable in damages for any error he may make. 
 The safer course is therefore to seek redress in the courts, wher- 
 ever a slight delay will not seriously prejtidice the interests of the 
 injured party.'-* 
 
 II. In Pleading. — Definition. — A plea in abatement is one which 
 shows some ground for abating or quashing the writ in a civil 
 action, the indictment in a criminal one, and makes prayer to that 
 effect.* It differs from a plea in bar by offering a formal objec- 
 tion to the writ without denying the right of action, and by show- 
 ing the plaintiff how it may be corrected : in technical language, 
 giving the plaintiff a better writ. 
 
 Kinds of Pleas in abatement. — 1. In a civil action. — Pleas in abate- 
 ment are to the disability of the plaintiff, to the disability of the 
 defendant, and to the writ. 
 
 Pleas to the disability of the plaintiff show that he is incapable 
 of commencing or continuing his action, as that he or one of the 
 plaintiffs is a fictitious person,* or that he was dead before suit 
 brought,^ or is an alien enemy,** or that he is an infant and has 
 declared by attorney,'' or insane and under guardianship,* or that 
 she is a feme covert and her husband has not joined,® or that 
 plaintiffs suing as executors, trustees, etc., are not such.i" 
 
 Moore, 38 Ala. 599; Maffit v. Bruner, (Pa.), 98. The death of the lessor in 
 
 I Greene (Iowa), 348; Perry v Fitz- ejectment does not abate the suit. Frier 
 
 howe, 8 Ad. & El. (Q. B.) 757; Cooper v. Jackson, 8 Johns. (N. Y.) 495. 
 
 V. Marshall, i Burr. 260; Babcock v. 6. Bell v. Chapman, xo Johns. (N. Y.) 
 
 City of Buffalo, 56 N. Y. 268; Calef v. 133; Hutchinson tj. Brock. 11 Mass. 119; 
 
 Thomas, 81 111. 478; Bowden v. Lewis, Russell v. Skipwith, 6 Binn, (Pa.) 241; 
 
 13 R, I. l8g; Shepard v. People, 40 Baywell v. Babe, I Rand. (Va) 272; 
 
 Mich. 487; Finley v. Hershey, 41 Iowa, Coxe v. Gulick. 5 Halst. (N, J.) 328; Brin- 
 
 389. But see Indianapolis v. Miller, 27 ley v. Avery, Kirby (Conn.) 25. If such 
 
 Ind. 894, and Northrop v. Burrows, 10 plea be put in puis darrein continuance. 
 
 Abb. Pr. (N. Y.) 365, where it is held the subsequent restoration of peace may 
 
 that the abator is liable only for wanton be replied. Russell v. Skipwith, I S. & 
 
 and unnecessary injury. R. (Pa.) 310. 
 
 1. Rex V. Rosewell, 2 Salk. 459; Day 7. Schemerhorn v. Jenkins, 7 Johns. 
 V. Day, 4 Md. 262. (N. Y.) 373; Young v. Young, 3 N. H. 
 
 2. Hicks V. Dorn, 42 N. Y. 47; Vason 346; Blood v. Harrington, 8 Pick. (Mass.) 
 V. S. C. R. Co., 42 Ga. 631; Brown v. 552; Smith v. Van Houten, 4 Halst. (N. 
 Perkins, 12 Gray (Mass.), 89; s. c, 5 J.) 381: Trask w. Stone. 7 Mass. 241, 
 Am. Rep. 242. 8. CoUard v. Crane, Brayt. (Vt.) 18. 
 
 See in general Wood on the Law of 9, Rangier v. Hummel, 37 Pa. 130; 
 
 Nuisances; Rolle's Abr. " Nuisance." Perry v. Boileau, 10 S. & R. (Pa.) 208; 
 
 3, Steph. on Pleading, 47; i Chit. Lyman v. Albee, 7 Vt. 508. If she is 
 Crim. Law, 423. sole administratrix, and marries pending 
 
 4, Doe V. Penfield, 19 Johns. 308; an action brought by her, the suit abates. 
 Boston Type Foundry v. Spooner, S Vt. Swan v. Wilkinson, 14 Mass. 295. But 
 93; Campbell v. Galbreath, 5 Watts not if she is one of several, and they all 
 (Pa.V 423. bring action. Newell v. Marcy, 17 Mass. 
 
 5 Sandbeck v. Quigley, 8 Watts (Pa.), 341. 
 460; Patterson v. Brindle, 9 Watts 10. Conkey ^.Kingman, 24 Pick.(Mass.) 
 
 9 
 
In Pleading, 
 
 ABA TEMENT. 
 
 Kinds of Pleas, 
 
 Pleas to t;he disability of the defendant are coverture,^ infancy,* 
 and privilege.^ 
 
 Pleas in abatement to the writ are either to the form or to the 
 action. Among those to the form are variances between the writ 
 and declaration,* that the parties suing or being sued, as husband 
 and wife, are not married \^ that a joint contractor or another ex- 
 ecutor or administrator has not been joined, where it must be 
 averred that the party who should have been joined is, still liv- 
 ing.* A misnomer of either party may be also pleaded in abate- 
 ment to the writ,'' and so may a defect in the process* or re- 
 turn.* 
 
 A very common plea to the action of the writ is that of lis pendens, 
 or that there iS another action depending for the same cause. i* 
 
 115; Childress v. Emory, 8 Wheat. (U.S.) 
 642; Kane v. Paul, 14 Pet. (U. S.) 33; 
 Thomas v. Cameron, 16 Wend. (N. Y.) 
 57g; Varick v. Bodine, .3 Hill (N. Y.), 
 444. Or that their alleged testator is 
 living. Hummel v. Brown, 24 Pa. St. 
 310. 
 
 1. Surtellw. Brailsford, 2 Bay(S. Car.), 
 333. But not if she marry after the 
 commencement of the suit. Crocket v. 
 Ross, 5 Greenl. (Me.) 445; Common- 
 wealth V. Phillipsburg, 10 Mass. 58; 
 Henderson u. McClure, 2 McCord (S. 
 Car.) 469. 
 
 2. This defence may be interposed to 
 an action of tort whenever the tort is 
 founded on a contract and an action 
 tx contractu would have lain. Doran ». 
 Smith, 26 Am. L. Reg. 42; Pentose v. 
 Curren, 3 Rawle (Pa.), 351. 
 
 ^. Hubbard v. Sanborn, 2 N. H. 468; 
 Van Alstyne v. Dearborn, 2 Wend. 
 (N. Y.) 586; Halsey v. Steward, i 
 South (S. Car.) 366; Greening v. Shef- 
 field Minor, 476. The privilege of a 
 member of legislature is pleadable in 
 abatement. King v. Coit, 4 Day (Conn.) 
 129. 
 
 4. Weld V. Hubbard, 11 111. 573; 
 Pierce v. Lacy, 23 Miss. 193. 
 
 5. Coombes ©.Williams, 15 Mass. 243. 
 
 6. I Saund. 2gi, note 2; Wadsworth 
 V. Woodford, I Day (Conn.), 28. Inac- 
 tions on contracts the non-joinder of a 
 CO plaintiff is ground for a nonsuit, and 
 need not be pleaded in abatement, ex- 
 cept where suit is honght jure refresenta- 
 iioms as by executors. In this latter 
 case, and also in the case of the non- 
 joinder of a defendant, the omission 
 must be pleaded in abatement. Stovey 
 ■V. McNeill, Harper (S. Car.), 173; Hor- 
 ton V. Cook, 2 Watts (Pa.), 40; Moore 
 V. Russell. 2 Bibb. (Ky.) 443; Winslow 
 V. Merrill, 2 Fairf. 127; Brown v. 
 Warram, 3 Har. & John. (Md.) 572; 
 
 Powers V. Spear, 3 N. H. 35; Gay v. 
 Cary, g Cowen (N. Y.), 44; Coffee v. 
 Eastland, Cooke (Tenn.), 159; Mackall 
 V. Roberts. 3 Munro (Ky.), 130; Mc- 
 Arthur z;. Ladd, 5 Ohio, 517. Conleyw. 
 Good, I Breeze (S. Car.), 96; Allen w. 
 Sewall, 2 Wend. (N. Y.) 327. But in 
 an action for a tort no advantage can be 
 taken of the nonjoinder of a defendant. 
 Rosez/. Oliver, 2 Johns. (N. Y.) 365; 
 1 Chitty on PI. 87. 
 
 7. Smith V. Bowker, i Mass. 76; Pate 
 V. Bacon, 6 Munf. (Va.) 2ig; Whittier v. 
 Gould, 8 Watts (Pa.), 485. 
 
 8. Renner v. Reed, 3 Ark. 339; Colby 
 w. Dow, 18 N. H. 557; Hooper v. Jel- 
 lison, 22 Pick. (Mass.) 250. But see 
 Jones V. Nelson, 51 Ala. 471. 
 
 9. Embry v. Devinney, 8 Dana (Ky.), 
 202; Sebree v. Clay, 3 Marsh (Ky.), 
 552. 
 
 10. Humphries v. Dawson, 38 Ala. 199; 
 Prosser v. Chapman, 29 Conn. 515; 
 Buffura V. Tilton, 17 Pick. (Mass.) 510; 
 Grider v. Apperson, 32 Ark. 332. But 
 an action pendingin a foreign court, or in 
 the court of another State, or in a United 
 States court cannot be pleaded in abate- 
 ment. Lyman v. Brown. 2 Curt. (U. S.) 
 559; Eaton V. Hunt, 20 Ind. 457; Hum- 
 phries V. Dawson, 38 Ala. 199; Bowne v, 
 Joy, g Johns. (N. Y.) 221; Newell v. 
 Newton, 10 Pick. (Mas;!.) 470; Walsh v. 
 Durkin, 12 Johns. (N. Y.) qg. See, how- 
 ever, as to a foreign attachment, Embree 
 V. Hanna, 5 Johns.' (N. Y.) loi; Engle 
 V. Nelson, i Penn. 442. Compare Win- 
 throp V. Carlton, 8 Mass. 456; Morion 
 V. Webb, 7 Vt. 124. A suit subsequently 
 commenced can never be pleaded in 
 abatement. Renner v. Marshall, i 
 Wheat. (U. S.) 215; Buffum v. Tilton, 
 17 Pick. (Mass.) 510; Webster v. Ran- 
 dall, 19 Pick. (Mass.) 13; NichoU v. Ma- 
 son, 21 Wend. (N. Y.) 339; Wood v. 
 Lake, 13 Wis. 84. 
 
 10 
 
In Pleading. ABA TEMENT. Kinds of Pleas. 
 
 Want of jurisdiction may also be pleaded, though this is not 
 strictly a plea in abatement. '^ 
 
 2. In a Criminal Action. — In a criminal action the defendant may 
 plead in abatement want of jurisdiction ;'•* misnomer,^ a former 
 acquittal or conviction,* a pardon, objections to the selection or 
 competency of the grand jury,^ etc. 
 
 Duplicity. — A defendant cannot plead at the same time in abate- 
 ment and bar to the same matter ;* but as a writ is divisible, he 
 may plead in abatement to part and demur or plead in bar to the 
 residue.'' 
 
 Eequisites. — Great accuracy and precision are required in framing 
 pleas in abatement. They should be certain to every intent and 
 without repugnancy, and must always give the plaintiff a better 
 writ.** 4 & 5 Ann., c. i6, s. ii (4), enacts that " no dilatory plea 
 shall be received . . . unless the party offering such plea do by affi- 
 davit prove the truth thereof or show some probable matter to the 
 court, to induce them to believe that the fact of such dilatory plea 
 is true ;" and this or similar enactments are in force in this 
 country.® 
 
 Judgment. — If the plaintiff reply and the issue is found in his 
 favor, the judgment is quod recuperet and final. But judgment in 
 his favor on a demurrer is only interlocutory and is quod respond- 
 eat ouster.^^ The judgment for the defendant on a plea in abate- 
 ment, whether on an issue of fact or of law, is "that the writ be 
 quashed ;" or if a temporary disability or privilege be pleaded, 
 " that the plaint remain without day until," etc.^^ 
 
 1. Osgood z/. Thurston, 23 Pick. (Mass.) States v. Hammond. 2 Woods (U. S.), 
 no; Bishop v. Vose. 27 Conn. i. 197; Mershorn v. State, 51 Ind. 14; 
 Though advantage of this may be taken State v. Ward, 64 Me. 545; State v. 
 under the general issue. Maisonnaire Brown, 64 Mo. 367; U. S. v. Williams, 
 V. Keating, 2 Gall. (U. S.) 325; Rea v. i Dill. (U. S.) 485. 
 
 Hayden. 3 Mass. 24. 6. As non est factum and coverture of 
 
 2. I Chit. Crim. Law, 423; Cole v. the plaintiff since making the bond. 
 Cliver, 43 N. J. L. 182. See Palmer v. Dixon, 5 Dowl. & Ryl. 
 
 3. Commonwealth v. Perkins, i Pick. 623. But in an action against two de- 
 (Mass.) 388; Bright v. State. 76 Ala. g6; fendants each may plead distinct matter 
 Amann v. People, 76 111. 188; Common- in abatement, or one in bar and the other 
 wealth V. Dedham, 16 Mass. 146. in abatement, i Chit, on PI. 458. 
 
 4. But not the pendency of .3 previous 7. i Chit, on PI. 458. 
 
 indictment in the same court for the same 8. i Chit, on PI. 457. See Wadsworth 
 cause. Dutton v. State, 5 Ind. 533; i'. Woodford, I Day. (Conn.) 28; Clark z/. 
 Hardin v. State. 22 Ind. 347; Com. v. Warner, 6 Conn. 355 ; Haywood v. 
 Drew, 3 Cush. (Mass.) 279; Smith 11. Chesiney, 13 Wend. (N. Y.) 495; Towns- 
 Cora., 104 Pa. St. 339; State v. Lam- end v. Jeffries, 24 Ala. 329; Parsons v. 
 bert, 9 Nev. 321. Ely, 2 Conn. 377; Pearson v. French, 9 
 
 5. State V. Williams. 5 Port. (Ala.) 130; Vt. 349; Ellis v. Ellis, 4 R. I. no; East 
 Brown v. State, 13 Ark. 96; Baker v. v. Cain, 49 Mich. 473. 
 
 State, 23 Miss. 243; Shropshire v. State, 9. Trenton Bank v. Wallace, 4 Halst. 
 
 12 Ark. 190; Hardin v. State, 22 Ind. (N. J.) 83; 3 Bin. (Pa.) 625; 2 Rev. St. 
 
 347; State?'. Rockafellow, 6 N. J. L. 332; (N. Y.) 352, sec. 7; Davis v. Campbell, 
 
 Pointer v. State, 89 Ind. 255; State v. 35 Tex. 779. 
 
 Watson, 86 N. C. 624; Clare v. State, 30 10. Fitch v. Lothrop. i Root (Conn.), 
 
 Md. 163. See State v. Bleekley, 18 Mo. 192; Baker v. Fales. 16 Mass. 147, 157; 
 
 428; States/. Mahan, 12 Tox. 283; People Trow v. Messer, 32 N. H. 361. 
 V. Jewett, 6 Wend. (N. Y.) 386; United 11. i Chit, on Pleading, 466; McCu. 
 
 11 
 
Of legacies. 
 
 ABATEMENT. 
 
 Contriliation.. 
 
 III. Of Legacies. — Definition, — Where the funds of a testator, 
 which are Hable before the legacies, are exhausted and there remain 
 unsatisfied claims, the legacies will ab^Lte, i.e., be diminished by a 
 contribution pro rata towards the payment of debts hx other 
 legacies.* 
 
 When they ahate. — Legacies do not abate until the following 
 funds in their order have been exhausted: i. The general personal 
 estate, not expressly or by implication exempted. 2. Lands ex- 
 pressly devised to pay debts. 3. Lands descended to the heir. 4. 
 Realty or personalty devised or bequeathed subject to the pay- 
 ment of debts.** "■ 
 
 Order of abatement. — Specific and demonstrative legacies do not 
 abate until the general pecuniary legacies have been exhausted.^ 
 But where there is no other personal estate than the specific leg- 
 acies, they must be intended to be subject to the pecuniary leg- 
 acies, and must abate /ri? rata.'^ 
 
 Contribution, when enforceable. — Specific legatees may enforce 
 contribution from devisees of real estate.^ But where a legacy 
 has been paid in full, the legatee is not compelled to contribute to 
 the payment of other legacies lost by the executor's default, where 
 he had originally enough personal property in his hands to pay 
 all.^ The right of contribution may be enforced by way of set- 
 off.^ 
 
 chen V. McCutchen. 8 Port. (Ala.) 15:; 
 McKinstry v. Pennoyer, 2 111. 319; 
 Blackburn v. Watson, 85 Pa. St. 241. 
 See in general i Chitty on Pleading, 
 ch. ii. ; Stephen on Pleading; i Chit, on 
 Criminal Law, 423 et seq. 
 
 1. I Titus V. Titus, 26 N. Y. Sq. 
 ril. But where personal property has 
 been given away in the lifetime of the 
 testator, it will not abate, though the 
 gift be confirmed in the will. Biddle v. 
 Carraway, 6 Jones Eq. 95. 
 
 2. 3 Jarm. on Wills (5th Am. ed.), 
 458. 
 
 3. I Bevan v. Cooper, 14 N. J. Sup. 
 Ct. 117. A legacy will not abate when 
 given in lieu of another claim as of dower, 
 where the widow is considered a pur- 
 chaser. Lord V. Lord. 23 Conn. 327; 
 Hubbard v. Hubbard, 6 Mete. (Mass.) 
 50 ; Williamson v. Williamson, 6 Paige 
 (N. Y.), 305 ; McGlaughlin v. McGlaugh- 
 lin, 24 Pa. St. 22 ; Stuart v. Carron, i 
 Desaus (S. Car.), 500 ; White v. Green, i 
 Ired. Eq. (N. Car.) 45 ; Potter v. Brown, 
 II R. \. 232. Compare Orton v. Orton, 
 3 Abb. App. Dec. (N. Y.) 411 ; Tickel v. 
 Quinn, I Demarest (N. Y.), 425; Sanford 
 V. Sanford, 4 Hun (N. Y.). 753. 
 
 4. White V. Green, i Ired. Eq. (N. Car.) 
 45; White V. Beattie, I Dev. Eq. (N. Car.) 
 87; Biddle v. Carraway, 6 Jones Eq. 
 
 13 
 
 (N. Car.) 95 ; i Roper on Leg. 418. 
 They abate proportionally with demon- 
 strative legacies and devises. Arm- 
 strong's App., 63 Pa. St. 312. 
 
 5. But the personal fund alone being 
 responsible for payment of simple con- 
 tract debts, specific legatees cannot force 
 devisees to contribute to such payment. 
 Dugan V. HoUins, 11 Md. 41. Otherwise 
 as to specialty debts. Chase v. Locker- 
 man, II Gill. & J. (Md ) 185, 204. But 
 real estate is not liable to contribute to 
 payment of legacies, unless specially 
 charged therewith. Hayes v. Seaver, 7 
 Greenl. (Me.) 237 ; Elliott v. Carter, 9 
 Gratt. (Va.) 541, 550; Brands v. Hartung, 
 38 N. J. 42. 
 
 6. Sims V. Sims, 2 Stockt. (N. J.) 
 161 ; Lupton v. Lupton, 2 Johns. Ch. 
 (N.Y.) 614. Otherwise as to debts, where 
 the executor has wasted the assets. Stu- 
 art V. Kissam, 2 Barb. (N. Y.) 493; Lup- 
 ton V. Lupton, 2 Johns. Ch. (N. Y.) 614. 
 Where the executor has paid a debt, hav- 
 ing departed from the provisions of the 
 will, he cannot call on the real estate for 
 contribution, the personalty having been 
 originally sufficient. Feemster v. Good, 
 12 S. C. (2 Shand), 573. 
 
 7. Harris t,. White, 2 South, (N. J.), 
 422. See, in general, Jarman on Wills, 
 chap. 46. 
 
^n Practice. ABA TEMENT. In Equity, 
 
 IV. In Practice. — 1. At Law. — At common law the death of a sole 
 -plaintiff or defendant before final judgment would have abated 
 the suit.* But by statute of 17 Car. II. c. 8, "the death of 
 either party between the verdict and the judgment shall not be 
 alleged for error ;" * and by 8 & 9 W. III., c. 1 1, § 6, it is provided 
 that where either party dies and the action might have been pros- 
 ecuted by or against his executors or administrators, the plain- 
 tiff or his representatives shall have a writ of scire facias against 
 the defendant or his representatives, to show cause why damage 
 :shouldnotbe assessed and recovered by him or them. So also 
 where there were two or more plaintiffs or defendants in a per- 
 rsonal action, the death of one of them pending the suit would 
 have abated it, until, by 8 & 9 W. III. c. 1 1, § 7, it was enacted that 
 "where the cause of action survived, the writ or. action should 
 not be abated, but the death being suggested on record, the ac-^ 
 tion should proceed ;" and this applies also to writs of error.* 
 Writs of error abate if the plaintiff in error die before errors as- 
 signed, but not after errors assigned ; nor at all in case of the 
 death of defendant in error.* 
 
 2. In Equity. — An abatement of a suit in equity takes place where, 
 by reason of some event subsequent to the institution of the suit, 
 there is no person before the court by or against whom it can either 
 in whole or in part be prosecuted. ** These events are the death Af 
 a party whose interest or liability neither determines by death* 
 nor survives to another litigant,'' and the marriage of a female 
 plaintiff.^ 
 
 1. Tidd Pr. 1168. Where part of the 3 Beav. 292; Leggett v. Dubois, 2 Paige 
 action is determined by act in law, and (N. Y.), 211. 
 
 action for the residue is given, that writ 6. Upon the death of a husband suing 
 
 -shall not abate. Coke on Lit. 285 a. in the wife's right, she may proceed with- 
 
 See, as to abatement by death, Alexan- out revivor; but if she does not, the bill 
 
 der V. Davidson, 2 McMuU (S. C), 49; is considered as abated. McDowl v. 
 
 Clindemin z/. Allen, 4N. H. 385; Brown Charles, 6 John. Ch. (N. Y.)i32; Vaugh- 
 
 V. Andrews, i Barb. (N. Y.) 227;- Green an z/. Wilson, 4 Hen. & M. (Va.) 453; Lord 
 
 V. Watkins. 5 Wheat. (U. S.) 260; Bal- Red. 47; Mitf. 59; Story's Eq. PI. § 357. 
 
 tiraore R. Co. v. Ritchie, 31 Md. 191; And if they are made defendants, his 
 
 Wade V. Kalbfieisch, 16 Abb. Pr., N. S. death does not abate the suit. Shelberry 
 
 (N. Y.) 104. A real action brought by v, Briggs, 2 Vern. 248; i Eq. Cas. Ab. 
 
 husband and wife in her right abates by i, pi. 4, S. C. But otherwise if the wife 
 
 her death. Ryder v. Robinson, 2 Me. dies, unless her interest survives to the 
 
 127. Otherwise of trespass. Syme v. husband. Jackson v. Rawlins, 2 Vern. 
 
 Sanders, 2 Stroth. (S. C.) 332. 195. A suit by members of a corporation 
 
 2. See Hatch v. Eustis, i Gall. (U. S.) in their corporate capacity will not abate 
 160. by the death of some of them. Olher- 
 
 3. Clark v. Rippon, i B. & Aid. 586. wise of a sole corporation, or if the suit 
 
 4. 2 Cromp. 401-2; Barnes, 206; 7 had been in their individual characters. 
 East. 296. Blackburn v. Jepson, 3 Swan. 138; I 
 
 5. Adams's Equity, 403. An abate- Daniell's Ch. Pr. & PI. (3d Am. Ed.) 24. 
 ment in chancery, though it suspends 7. Glenn u. Clapp, 11 Gill & J. (Md.) 
 rproceedings in a cause, does not put an i; Howard v. Bank, R. M. Charlt. 
 «nd to them as an abatement at law (Ga.) 216. In a court of admiralty 
 ■does; so that a defendant in custody death of a party does not abate the suit, 
 under a process of contempt is not dis- Penhallow v. Doane's Adm., 3 Dall. 54 
 
 -charged thereby, nor is an injunction 7. Douglass v. Sherman, 2 Paige 
 .absolutely dissolved. Chowick v. Dimes, (N. Y.), 357; Campbell z/. Bowne, 5 Paige 
 
 13 
 
Of Freehold. ABA TEMENT. in Revenue Law- 
 
 Bills of Revivor. — The effect of the abatement is that all proceed- 
 in gs are stayed to the extent of the abated interest, and to set them 
 in motion again a bill of revivor must be brought. Where the trans- 
 mission of the interest is by act of law, as to the heir or person- 
 al representative, a simple bill of revivor may be brought \^ where 
 by act of the party, as to a devisee, an original bill in the nature of 
 a bill of revivor must be filed.** To the latter an answer is re- 
 quired, and a formal decree is made thereon ; while in the tase of 
 the former no answer is requisite, but the revivor is ordered as of 
 course, unless cause is shown by demurrer or plea. The bill of 
 revivor states the proceedings in the suit, the abatement, and the 
 transmission of interest, and prays that the suit may be revived.^ 
 See Daniell's Chanc. PL & Prac. chap. 32 ; Adams's Eq. chap. 9. 
 
 V. Of Freehold. — Abatement of freehold is the entering upon and 
 taking possession of a freehold of inheritance by a stranger after 
 the death of the ancestor, and before the heir or devisee enters. 
 It was a species of ouster by intervention wherein the entry ab 
 initio was unlawful, thus differing from discontinuance and de- 
 forcement where only the retaining possession was unlawful.* 
 
 VI. In Revenue Law. — ^The act of Congress of March 2, 1799, c. 
 22, s. 52, provides that in the appraisal of damaged goods the 
 appraisers shall " ascertain and certify to what rate or percentage 
 the merchandise is damaged, and the rate of percentage of dam- 
 age so ascertained and certified shall be deducted from the original 
 amount." To have this abatement^ made, however, it is neces- 
 sary that "proof to ascertain such damage shall be lodged in the 
 custom-house of the port where such merchandise has been landed, 
 within ten days after the landing of such merchandise."* Simi- 
 lar provisions are made as to abating or refunding the amount of 
 import duties paid or accruing on goods damaged or destroyed in 
 any public or private warehouse under bond, or in the appraisers' 
 stores undergoing appraisal, or while in transportation under 
 bond from the port of entry to any other port in the United 
 
 (N. Y.l, 34. But on the marriage of a they must incorporate in their bill a 
 
 female defendant the suit does not supplemental statement. This bill is 
 
 abate, but the husband must be named termed a bill of revivor and supplement, 
 
 in the subsequent proceedings. Adams's IVIitf. 70, 71; Bampton v. Birchall, 5 
 
 Equity, 404. Beav. 330; i Ph. 568. Although the 
 
 1. Boynton v. Boynton, i Foster (N. liability to abatement and the right of re- 
 H.), 246; Story's Eq. PI. § 364; Feems- vivor are not limited to any stage of the 
 ter V. Marlcham, 2 J. J. Marsh, 303; suit, yet there can be no revivor for costs 
 Putnam v. Putnam, 4 Piclc. (Mass.) 139. alone, except under special circum- 
 
 2. Slack V. Walcott, 3 Mason (U. S.l, stances. Andrews v. Lockwood, 15 Sim. 
 308; Russell V. Craig, 3 Bibb. (Ky.) 377. 153; Peer v. Cookerow, 2 Beas. 136; i 
 Where a defendant becomes a bankrupt McCart. Eq. (N. J.) 361; Travis v. Wat- ' 
 or insolvent, the suit must be continued ers, i Johns. Ch. (N. Y.) 85. 
 
 by a. supplemental bill. Storm v. 4. Coke on Littletop, 277 a; 3 Black. 
 
 Davenport, i Sandf. Ch. (N. Y.) 135; Com. 168. 
 
 Story's Eq. PI. § 342. 8. See Shelton v. The Collector, 5 
 
 3. Where after abatement the rights of Wall. (U. S.) 113; Shelton v. Austin, i 
 the parties are affected by any event Cliff. (U. S.) 388; Andrews on Rev. 
 other than that causing the abatement, Laws, §§ 162-4. 
 
 14 
 
Afadavits. ABBREVIATIONS. Ballots. 
 
 States, or while in the custody of officers of the customs, or with- 
 in the limits of the port of entry before landing.^ 
 
 ABBREVIATIONS. (See Ambiguity; Names.) — A shortened 
 form of words obtained by the omission of one or more syl- 
 lables from the middle or end' of the words.** As almost every 
 word in the language may be abbreviated, the number may 
 be made very Large. The broadest rule which has been ap- 
 plied to their usage in legal forms and proceedings limits them 
 to such as are in common use ; and while their meaning in written 
 instruments of almost every kind has been allowed to be explained 
 by the introduction of parol testimony, yet the ambiguity and 
 uncertainty which they occasion render the saving of trouble or 
 expense of doubtful advantage. The difficulty is of course less- 
 ened to those that follow, which have had legal constructions 
 placed upon them. 
 
 An attorney may use, in rendering his bill, such abbreviations 
 as are commonly used in the English language, under the statutes 
 of 2 George II. c. 23, and 12 George II. c. 13, s. 5. A bill contain- 
 ing the following abbreviations, " Drawg Declar. ffs. l5,Instrons. 
 for case, attg. you in long confce. Preparing afft.," was held such 
 as anybody would understand and therefore good.^ 
 
 1. Affidavits, etc. — The characters N. P. and J. P. indicate respect- 
 ively the offices of Notary Public and Justice of the Peace, and 
 their use does not vitiate a jurat.* 
 
 " Ex. A " means " exhibit A" ; and " C. P. C. C," annexed to the 
 name of a person before whom an affidavit was sworn to, may be 
 construed in the Circuit Court of Porter County, where said affi- 
 davit was filed, to mean " Clerk of Porter Circuit Court," courts 
 taking judicial notice of the signatures of their officers.** 
 
 A bond for costs, entitled in the cause, giving the names of the 
 parties and of the court in which the cause was pending, only ab- 
 breviating the christian names of the plaintiffs and defendants, 
 was held to be a good bond.^ 
 
 The abbreviation " Octb.," in a writ of scire facias, held not to 
 be mistaken for October.'' 
 
 2. Ballots. — A ballot for J. A. Dyer cannot be counted for James 
 A. Dyer, nor is evidence admissible to show that it was intended 
 for James A. Dyer ; but where the designation of an individual on 
 a ballot is an abbreviation sanctioned by common usage, the bal- 
 lot may be counted for the person for whom it was evidently in- 
 tended! So a vote for Jas. A. Dyer will be counted for James A. 
 Dyer.s (See Elections.) 
 
 1. See Rev. Stat. (2d Ed.) § 2894; 6. Dugan v. Trisler, 69 Ind. 553 ; 
 Andrews on Rev. Laws, §113; Weskett Buell ». State, 72 Ind. 523. 
 
 on Insurance — "Abatement." 6. King et al. v. Thompson et al., 3 
 
 2. Bouvier's Law Diet. Scam. (III.) 334. 
 
 3. Frowd V. Stillard, 4 C. & P. 51. 7. Kearns v. State, 3 Blackf. (Ind.) 334. 
 
 4. Rowley v. Berrian, 12 111. 200 ; 8, People v. Higgins, 3 Mich. 233 ,; 
 Shattuck V. People, 4 Scam. (111.) 477 ; People v. Tisdale, i Doug. (Mich.) 60; 
 Scudder v. Coryell, 5 Hal. (N. J.) People v. Ferguson, 8 Cow. 102; People 
 340. V. Cook, 14 Barb. (N. Y.) 259; s. c, 8 
 
 15 
 
3)eeds. ABBREVIATIONS. Assessments for Taxes. 
 
 3. Deeds, Assessments for Taxes, etc. — Well-known abbreviations 
 maybe used in conveyances and are sufficient ; but such as do not 
 permit that degree of certainty which admits of no reasonable 
 doubt as to their meaning upon which persons of ordinary intel- 
 ligence or courts can differ are not allowable. ^ 
 
 A deed is not invalid because of the descriptions of the lands 
 being in figures and well-understood abbreviations.'-* 
 
 Words and figures, or abbreviations thereof, maybe used to des- 
 ignate lands against which a judgment is asked for taxes, provided 
 a definite locality can be given.^ 
 
 The usual signs or symbols used in mathematics, chemistry and 
 other sciences, characters used for denoting certain weights and 
 measures, the marks of punctuation, and the ordinary abbrevia- 
 tions used in written composition may be used in proper cases 
 without invalidating the instruments in which they are used.* 
 
 It is the duty of courts to give effect to instruments of writing 
 so as to carry out the intentions of parties when it can be done 
 consistently with the rules of law. Such abbreviations as the fol- 
 lowing have been held not to be misleading and not objectionable 
 in the description of premises in various tax-title proceedings: c, 
 cts., $, m. (mills), Lt. (lot), Bk. (block), Tx. (tax), VI (valua- 
 tion), T. (township), R. (range), Sec. (section), Qr. Sec. (quarter 
 section), Pt. (part), Frm (from). Ft. (foot or feet).*' 
 
 Federal money may be indicated by the use of the dollar-mark 
 ($) and the decimal-point with Arabic figures.* 
 
 A description of land in a suit to enforce a lien for benefits by a 
 ditching association read as follows: " Matthias Wagoner. S. E. 
 \ of N. W. i Sec. i8, T. 21, N. R. 7 E.,40 acres." Held, that as 
 the description would be good in a deed or mortgage, the abbrevia- 
 tions being as well understood in the State (Indiana) as the words 
 for which they stood, it was good in the present case.'' 
 
 The description of lands assessed or sold for taxes by the use 
 of initial letters, abbreviations, and figures is sufficient.^ 
 
 Where lands are described in an assessment and tax roll as, 
 Young Men's Society — Gov. & J. P. 
 
 - -- - - - - :. I ) 
 
 & E. pt. lot 10 sec. I ) 
 the description is insufficient.* 
 
 N. Y. 67; People v. Cicotte, 16 Mich. 283; 6. Long v. Long, 2 Blackf. (Ind.) 293; 
 
 ■Opinions of Justices, 64 Me. 596; Reg. v. Fulenwider v. Fulenwider, 53 Mo. 439; 
 
 Bradley, 7 Jur. N. S. 757; 9 W. R. 372; Hunt v. Smith, 9 Kans. Comp. ; Clark v. 
 
 3 L. T. N. S. 853; 3 El. & El. 634. Stoughton, i8 Vt. 50; Avery v. Bafccock, 
 
 1. Bowers 11. Chambers, 53 Miss. 267; 35 111. 175; Bailey v. Doolittle, 24 III. 
 
 Tidd V. Rines, 26 Minn. 201 ; Keith v. itj; Dukes w. Rowley, 24 111. 210. 
 Hayden, 26 Minn. 212. 7. Jordan Ditching & Draining Ass'n 
 
 3. Harrington v. Fish, 10 Mich. 4, 5. v. Wagoner, 33 Ind. 50. See also 
 
 3. Olcott v. State, 5 Gilm. (111.) 481. Bowers w. Chambers, 50 Mis. 267; Frazer 
 
 4. Hunt V. Smith, 9 Kans. 153. v. State, 106 Ind. 471. 
 
 5. Blackwell on Tax Titles, 202; At- 8. Sibley v. Smith, 2 Mich. 486; 
 kins V. Hinman, 2 Gilm. (111.) 444; Jack- Comp. Laws, § 804. 
 
 son V. Cummings, 15 111. 449; Blakeley v. 9. Detroit Young Men's Society v. 
 Bestor, 13 111. 714. Mayor of Detroit, 3 Mich. 172. 
 
 16 
 
 Jeff. av. N. 45 feet W. pt. lot ii sec. x ^ ■□ 
 
Evidence. ABBREVIATIONS. Evidence. 
 
 Where a mechanic's lien is claimed for material furnished, and 
 there is a sufificient general designation or description of each 
 article, the addition by way of more particular description of let- 
 ters or abbreviations not commonly understood by persons not in 
 the business of furnishing such material does not vitiate the ac- 
 count : 
 
 Julys, 1883, 5 Wds. 32x38—2 Lt. if Gld. D. S. 
 2 " 18x38—2 " " " S. S. 
 Sept. 4, 350 ft. Mldg. No. 673, 2.00. 
 Disc. 40 per cent.* 
 
 4. Evidence. — Parol evidence may be heard to show the meaning 
 of an abbreviation or the particular word for which it stands in a 
 written instrument ; but not to show the intention with which it 
 was used.** 
 
 In an» action upon a stock contract, the evidence of stock- 
 brokers may be properly received to explain abbreviations. 
 
 County officers have been allowed to explain abbreviations in a 
 tax deed.* 
 
 Where the memorandum of a notary public of a protest of a 
 note and of notice is so abbreviated and elliptical as to be unin- 
 telligible, an expert may be called to prove the meaning of the 
 words.* 
 
 Parol evidence of the meaning of the terms " EXFF. Madder, 
 121-4, 6ms," in a contract, allowed;'' also of " ioo-|- dolls, per 
 ton," in a bill of lading.** 
 
 The letters I.O.U. are a valid acknowledgment of indebted- 
 ness.'' 
 
 The production of an I.O.U. is prima facie evidence of an ac- 
 count stated.** 
 
 It is necessary, in order to introduce parol proof as to what sense 
 letters which have not acquired a legal signification are used in a 
 particular trade, to aver in the declaration that they are so used. 
 The letters C.O.D. placed in a written contract are the initials of 
 the words " collect on delivery," and this undertaking by these 
 letters is assumed and a strict performance thereof may be ex- 
 acted.® 
 
 The letters C.O.D. followed by an amount in dollars have come 
 to be very well understood by the community and the public, but 
 
 1. Smith V. Headley, 33 Minn. 384. 7. Kinney v. Flynn, 2 R. I. 319. 
 
 2. Hill V. State, g Yerg. (Tenii.) 357; 8. Fesenmeyer v. Adcock, 16 M. T. 
 Jaqiia v. The Witham & Anderson Co., W. 449, 450; Curtis v. Richards, i Scott 
 106 Ind. 545. N. R. T55; Gould v. Coombs, i C. B. 
 
 3. Story v. Salmon, and Griffin v. 543; zvafe also Childers i*. Boulnois, R. & 
 Same, 6 Daly. 531, and 71 N. Y. 420; R.N. P. C. 8; Melanotte v. Teasdale, 13. 
 Barton v. Anderson et al., 104 Ind. 578. M. & W. 216; 13 L. J. Exch. 358; s. p.,. 
 
 4. Sheldon v. Benham, 4 Hill (N. Y.), Taylor v. Steele, 16 M. & W.'665; it 
 129. Jur. 806; 16 L. J. Exch. 17:7; Smith v. 
 
 5. Dana v. Fiedler, i E. D. Smith Smith, i F, & F. 539; Waithman v, 
 (N. Y.), 463. Elsee. I C. & R. 35. 
 
 6. Taylor v. Beavers, 4 E. D. Smith 9. The American Express Co, v 
 (N. Y.), 215. Lesem et al., 39 111. 333. 
 
 1 C. of L.— 2 17 
 
Judgment. ABBREVIATIONS. Notes, etc. 
 
 perhaps could not without the aid of extrinsic evidence be read 
 and interpreted by the courts. It is certainly competent to ex- 
 plain their use in connection with a contract, not inconsistent 
 with the terms thereof.^ 
 
 After the letters f. o. b. in a contract have been explained to 
 mean " free on board," there is nothing ambiguous, and conse- 
 jquently no room for parol evidence.'-* 
 
 5. Judgment, — A judgment is void for uncertainty in which the 
 amount is expressed only in numerals and with nothing to indi- 
 cate what they represent, and in which the land is described as 
 ^'S.^'N.E.'' " of a designated section, town, and range.* 
 
 A judgment obtained before a magistrate against a defendant 
 iby a name in which an initial letter is used instead of his Christian 
 name is irregular but not void.* 
 
 6. Name. — Initials preceding a surname are always understood to 
 be the initials of a name and not the abbreviation of a title, unless 
 proved the latter. ** 
 
 Where one name is an abbreviation of another, but both are 
 taken promiscuously and according to common usage to be the 
 same, though differing in sound, the use of the one for the other 
 is not a material misnomer." " Jr." is no part of a person's 
 name.*" " Th." means the same as Thomas.* (See Names.) 
 
 7. Notes, etc. — A court sitting as a jury has a right to infer from 
 the face of a note payable " at the Br. at Fort Wayne of the Bk. of 
 the State of Indiana" that the branch at Fort Wayne of the Bank 
 of the State of Indiana was intended.* 
 
 The words " Citz. Bank" in a note were held to be plainly an 
 abbreviation of Citizens' Bank.^" 
 
 A note made payable at a certain place, " Ind.," having been 
 sued on, held, the. courts and juries of Indiana may well know from 
 their general information that the abbreviation " Ind." as applied 
 to a place means Indiana.^^ 
 
 " Com." and " Co." are well-understood abbreviations of " com- 
 pany," when used as part of the name of a commercial firm, and 
 an indorsement "Sturges & Co." on a note payable to " Sturges 
 & Com." is no variance. i* 
 
 1. Collender v. Dinsmore, 55 N. Y. (N. Y.) 259; Blake v. Tucker, 12 Vt. 39; 
 200. Prentiss v. Blake, 34 Vt. 460; Cobb v. 
 
 2. Silberman v. Clark, 96 N. Y. 522. Lucas, 15 Pick. (Mass.) 7, 9; Kincaid v. 
 
 3. Tidd V. Rines, 26 Minn. 201 ; Keith Howe. 10 Mass. 203, 205; Common- 
 71. Hayden, 26 Minn. 212. wealth v. Perkins, i Pick (Mass.) 388; 
 
 4. Bridges v. Layman, 31 Ind. 384. People v. Collins, 7 Johns, (N. Y.) 549; 
 
 5. Burford v. McCue, 53 Penna. St. Brainard v. Stfephin, 6 Vt. 9. 
 
 427; Dana v. Fielder, 12 N. Y. 40. 8. Ogden v. Gibbons, 2 South. (N. J.) 
 
 6. Gordon v. Holiday, i Wash. 285; 51B, 531. 
 
 Wilkerson v. State, 13 Mo. 91. 9. Miller f^ al. v. Powers et al., 16 
 
 7. Heaflley v. Shaw. 39 111. 354; State Ind. 410, 
 
 «!. Grant, 21 Me. 171; Jameson v. Isaacs, 10. Locke ^^ al. v. Merchants' National 
 12 Vt. 611; Johnson v. Ellison. 4 T. B. Bank, 66 Ind. 353. 
 
 Mon. (Ky.) 526; State v. Weare, 38 N. 11. Burroughs ^^ a/, v. Wilson, 59 Ind. 
 H. 314; Padgett v. Lawrence, 12 Paige 536. 
 
 (N. Y.), 170; People v. Cook, 14 Barb. 12. Keit-h v. Sturges, 51 111. 142. 
 
 18 
 
Pleading. ABBREVIATIONS. Pleading. 
 
 Held, not to be error to admit a note sued on in evidence, be- 
 cause the amount is written " four hund and two and -f^-^ dollars." * 
 
 The word " cash " affixed to the name of a payee indicates that 
 the note is payable to the bank, and the bank may sue thereon as 
 payee, the agent being a party to the action.* 
 
 The words " ten pe. cen." in a promissory note have been held 
 to have a meaning understood by everybody, and make the note 
 bear interest at ten per cent.* ' 
 
 No force can be conceded in an objection to the word " Feb'y" 
 in a note.* 
 
 The terms " 111. cy.," on a certificate of deposit given by Chicago 
 bankers, construed to mean, as applied to the payment of the cer- 
 tificate, that the same might be paid in bills of banks which at the 
 time of payment were received and passed as ordinary currency in 
 Illinois,'but not in the same bills which were received. 
 
 8. Pleading. — Except when it is otherwise specially prescribed by 
 law, a writ or other process must be in the name of the people of 
 the State; and each writ, process, record, pleading, or other pro- 
 ceeding in a court or before an officer must be in the English 
 language, and, unless it is oral, made out on paper or parchment, in 
 a fair legible character, in words at length and not abbreviated. 
 But the proper known names of process and technical words may 
 be expressed in appropriate language as now is and heretofore 
 has been customary ; such abbreviations as are now commonly em- 
 ployed in the English language may be used, and numbers may be 
 expressed by Arabic figures or Roman numerals in the customary 
 manner.** 
 
 If a variance is an abbreviation, it is immaterial, if the jury find 
 it to mean the same thing.** 
 
 The revised statutes of New York provide that no indictment 
 shall be deemed invalid or the trial affected by any misstatement 
 of the defendant's title, occupation, estate, or degree, when the de- 
 fendant shall not be misled or prejudiced by such misstatement, 
 or by reason of any other defect or imperfection in matters of 
 form which shall not tend to the prejudice of the defendant.'' 
 
 Averments may be made in a declaration explaining abbrevia- 
 tions used in the written instrument declared on.* 
 
 The use of " Geo." instead of George, as written in an indictment, 
 held not to be a material variance^ or proof of allegation of " U. 
 States" by United States.^" 
 
 The abbreviation, in a declaration, " Damages One thous. 
 Dollars," is not error, though not a commendable practice. ^^ 
 
 1. Glenn v. Porter, 72 Ind. 525. 7. 2 R. S. 728, § 52. 
 
 2. Nave et al. v. Hadley et al., 74 8, Jaqua v. The Witham & Anderson 
 Ind. 155. Co., 106 Ind. 545. 
 
 3. Cutting V. Conklin, 28 III. 506. 9. Pattersons. People, 12 Hun (N. Y.), 
 
 4. Hulbert v. Carver, 37 Barb. (N. Y.) 139. 
 
 62. 10. Lewis V. Few, 5 Johns. (N. Y.) i. 
 
 5. Bliss N. Y. Ann. Code, 1877, p. 25. 11. Rice v. Buchanan, i W. L. J. 
 
 6. Lewis V. Few, 5 Johns. (N. Y.) i. (Mich.) 395. 
 
 19 
 
Residence. ABBREVIATIONS. Will*. 
 
 The use of " L. S." for place of seal, " vs." for versus or against, 
 and " &c." does not vitiate a plea. Such terms are English. 
 The letters L. S. may be taken also to indicate a seal. Ads. for 
 adsectam, with the names of parties properly placed, indicates the 
 same as vs.^ 
 
 A bill filed by Orrin P. Ramsdell to foreclose a mortgage given 
 to O. P. Ramsdell being taken as confessed against defendant^, 
 who were the mortgagors, it must be assumed that defendants 
 admit the execution, the identity of the parties being open to 
 proof, if questioned.** 
 
 In a complaint for a criminal charge before a magistrate, the 
 year may be stated in words following the letters '* A. D.," and 
 the sign " &" express' the word "and." ^ 
 
 In an action for assault, battery, and imprisonment, a plea an- 
 swering the " assault, &c., and imprisonment" is broad enough, 
 the &c. including the battery.* 
 
 A plea of misnomer to a declaration against Geo. Turner, that 
 his Christian name was George, not Geo., was held good on de- 
 murrer.^ 
 
 In England, however, the describing in a writ and declaration 
 a party to a suit by the initials of his Christian name must be 
 treated as a misnomer.** 
 
 9. Residence. — Residence is sufficiently stated by double commas 
 under a place already stated, where articles of association require 
 subscribers' residences to be stated with their subscriptions.'' 
 
 10. Return. — The return of service of summons is, sufficient, 
 though the Christian name of defendant is abbreviated therein.* 
 
 If an abbreviation taken in connection with the remainder of 
 the writing and subject-matter can be clearly understood and not 
 be ambiguous, it must have the same effect as if the words were 
 written in full. Where a return of a sheriff ran, " by delivering a 
 true copy of within writ to Dr. Peter- Brugman, president of the 
 O. F. B. A.," and on examination of the writ it appeared that the 
 letters could refer to the Odd Fellows' Building Association, held, 
 that there was no ambiguity.* 
 
 11. Wills. — If a testator introduce in his will certain terms or char- 
 acters which are not understood by the court, recourse may be 
 had to persons conversant with the subject for the purpose of 
 deciphering the characters.*" 
 
 1. Smith V. Butler, 25 N. H. 521; 6. Rust v. Kennedy, 4 M. & W. 586; 
 Berry v. Osborn, 28 N. H. 279; Holbrook 7 D. P. C. 199; 3 Jur. 198. 
 
 V. Nichol, 36 111. 161; Bowen v. Wilcox 7. Steinmetz v. V. & O. T. Co., 57 Ind. 
 
 & Gibbs Sewing Machine Co., 86 111. II. 457; Millerw.W. C. G. R. Co., 52 Ind. 51. 
 
 2. Ramsdell v. Eaton, 12 Mich. 117. 8. Elliot & Redman v. The Bank of 
 
 3. Commonwealth v. Clark, 4 Cush. the State, 4 Ark. 437. 
 
 (Mass.) 596; Brown v. State, 16 Texas 9. Odd Fellows' Building Ass'n v. 
 
 App. 245. Hogan, 28 Ark. 265. 
 
 4. Bryan v. Bates, 15 111. 87. 10. Masters z/. Masters, i P.Wms. 421; 
 
 5. Wilson & Turner v. Shannon et Norman v. Morell, 4 Ves. 769; Kell. v. 
 ux., 6 Ark. 196. Charmer, 23 Beav. 195; Clayton v. Lord 
 
 Nugent, 13 M. & W. 206. 
 20 
 
Definition. ABDICATE— ABDUCTION. What is. 
 
 The word " mod." occurred in the codicil of the will of a sculptor ; 
 opinions of experts differed as to whether " models" was meant, 
 and Lord Brougham decided that a formal bequest of the models 
 in the will could not be revoked by such an abbreviation in the 
 codicil. 1 
 
 A testator devised his real estate under the description : 
 "Sixty acres, Se. 25, toon. 7 ) Jasper county. 
 Forty acres, Se. 24, toon. 6 j State of Iowa." 
 Held, that he meant " section," and that it was competent to prove 
 by parol in what township and range testator owned above land 
 and no other.* 
 
 ABDICATE. — Lord Somers, in his speech delivered in 1688, when 
 James H. vacated the throne, said : " The word abdicate doth prop- 
 erly and naturally signify entirely to renounce, throw off, disown, 
 relinquish any thing or person, so as to have no further to do with 
 it ; and that whether it be, done by express words or in writing, or 
 by doing such acts as are inconsistent with the holding and retain- 
 ing of the thing." But, nevertheless, whatever maybe the manner 
 by which the incumbent of an office indicates his intention of re- 
 signing or abdicating it, whether by acts inconsistent with the re- 
 tention of the ofifice, or by a formal renunciation of it, it is never 
 consummated — he is never legally out of ofifice — until his resigna- 
 tion is accepted, either expressly or by the appointment of another 
 in his place.* 
 
 ABDUCT— ABDUCTION. See Enticing Away; Kidnapping. 
 
 1. What is. — In private or civil law, abduction is the act of taking 
 away a man's wife by violence or persuasion. For this injury an 
 action lies, formerly known as an action of trespass de uxore raptd 
 et abductd.^ 
 
 In criminal law, abduction is the act of taking away qt detain- 
 ing a woman either against her own will or, in the case of minors, 
 against the will of her parents or any other person having the 
 lawful charge of her.^ 
 
 1. Goblet V. Beechey;, 3 Sim. 24; 2 open violence. State v. George, 93 N. 
 R. & My. 624. Car. 567. A mere attempt to abduct is 
 
 2. Chambers t/. Watson, 60 Iowa, 33g. not enough. People z/. Parshall, 6 Park 
 
 3. Where a policeman, appointed under Cr. (N. Y.) 129. 
 
 the act of 1853 by the legislature of New The term is applied to the unlawful 
 
 York, was by virtue of the act of 1857 seizure or detention of a female for the 
 
 continued on the police force, but while purpose of marriage, concubinage, or 
 
 obeying the commissioners under the act prostitution. Brown's Law Diet., sec. 
 
 of 1853 refused to act under the new 2 ; N. Y, Rev. Stat. 553, §§ 24-26 ; I 
 
 board of police on the ground that the Russell on Crimes (9 Am. Ed.), 940; 3 
 
 act of 1857 was unconstitutional, htld. Black. Com. 139-141. The statute 
 
 that such conduct did not amount to a against taking away maidens and marry- 
 
 resignation. People v. Board of Police, ing them without consent of their legal 
 
 26 Barb. (N. Y.) 487. guardians is in force in South Carolina. 
 
 4. Steph. Com. iii. 437. State v. O'Bannon, i Bail. (S. Car.) 144; 
 
 5. Sweet's Law Diet. State v. Tidwell, 5 Strob. (S. Car.) i. 
 Abduction means in law the taking Also in New York where the female is 
 
 and carrying away of a child, a ward, a under sixteen years of age. N. Y. Penal 
 wife, etc., either by fraud, persuasion, or Code, § 282. 
 
 21 
 
Of Girls under Sixteen. 
 
 ABDUCTION. 
 
 What is not. 
 
 2. Of Girls under Sixteen, — Every one commits the crime who un- 
 lawfully takes, or causes to be taken, any unmarried girl, being 
 under age of sixteen years,* out of the possession and against the 
 will of her father or mother, or of any other person having the 
 lawful care of her.* 
 
 The taking must be a taking under the power, charge, or pro- 
 tection of the taker, but it is immaterial whether the girl is taken 
 with her own consent, or at her own suggestion, or against her 
 will.3 
 
 It seems very doubtful how far abduc- 
 tion was, in any case, an offence at 
 common law. Of course, if the woman 
 did not consent, there would be an as- 
 sault upon her; if she consented, but 
 those having lawful charge of her re- 
 sisted, and force were used, there would 
 be an assault upon them. A conspiracy 
 also to seduce would be an offence at 
 common law, or to induce an unchaste 
 woman to become a prostitute. R. v. 
 Howell, 4 F. & F. i6o. All the authori- 
 ties usually quoted to show that this is 
 an offence at common law may be ex- 
 plained on one or other of these grounds. 
 See R. V. Lord Grey, 3 S. Tr. 519 ; R. v. 
 Mears, 2 Den. C. C. 79 ; I East, P, C. 
 460 ; I Russ. by Gr. 401 ; Hawk. P. C. 
 b. I, c. 41, s. 8. See State v. Sullivan, 
 85 N. Car. 506. 
 
 The gist of the offence is the taking 
 or enticing away, be it to a place distant 
 or near, or be it for a long or short space 
 of time. Slocum v. People, 90 111. 274. 
 
 A statute punishing the enticing away 
 of a female applies where the defendant 
 acconiplishes his purpose while he art- 
 fully avoids making her a direct propo- 
 sition to go away with him. People v. 
 Carrier, 46 Mich. 442. See State v. Ruhl. 
 8 Iowa, 447 ; Beyer v. People, 86 N. Y. 
 
 369- 
 
 The N. Y. Penal Code, § 282, sub. i, 
 provides that whoever inveigles or en- 
 tices an unmarried female under the age 
 of twenty-five years, of previous chaste 
 character, into a house of ill-fame or of 
 assignation, or elsewhere for the purpose 
 of prostitution or sexual intercourse, is 
 guilty of abduction. See People ' v. 
 Seeley. 37 Hun (N. Y.). igo ; Beyer i/. 
 People, 86 N. Y. 369 ; Schnicker v. Peo- 
 ple, 88 N. Y. 192. 
 
 1. As the legal age for abduction varies 
 in the different States, the age of sixteen 
 is used in the following illustrations for 
 convenience, and is the age generally 
 adopted. 
 
 2. If the girl has no parents or legal 
 guardians, those in whose care she is 
 will be deemed to have the legal charge 
 
 of her. State v. Ruhl, 8 Iowa, 447. 
 The indictment need not state the means 
 by which the abduction was accom- 
 plished, nor that it was done without 
 the consent and against the will of the 
 father, nor that the defendant was not a 
 nearer relation to the child than the 
 person from whose custody it was ab- 
 ducfed. State v. George, 93 N.Car. 567. 
 3. What is not. — A and B, two girls 
 under sixteen, run away from home to- 
 gether. Neither abducts the oiher. 
 Steph. Dig. Cr. L. (Am. Ed.) 198 ; R. t/. 
 Meadows, i C. & K. 399 ; R. v. Kipps, 
 4 Cox Cr. Cas. 168 ; R. v. Mankletwo, 
 Dears. C. C. 162. Nor does one who 
 receives them, in ignorance of who they 
 are, even though he uses them for the 
 purpose of prostitution. Upon the trial 
 of an indictment for abduction, it ap- 
 peared that the defendant kept a dance- 
 hall or concert-saloon in the city of New 
 York. The testimony of K., the female 
 alleged to have been abducted, was to the 
 effect that she was about fifteen years of 
 age, of somewhat dissolute character, 
 living with her parents in Newark ; that 
 in company with a young companion, a 
 former inmate of a house of prostitution, 
 she went to New York without the con- 
 sent of her ' parents, ■ and in strolling 
 about came to and entered defendant's 
 saloon ; after sitting in the bar-room for 
 a while she asked defendant "how much 
 it was to see the entertainment." He an- 
 swered, " Nothing, my little dear ! 'Come 
 in." and asked if they had come to stay, 
 to which K. replied that she had. He 
 then invited them upstairs, took inde- 
 cent liberties with their persons, and 
 offered K. a dress, which she refused. 
 She remained in the place voluntarily for 
 about a month, leading the life of a pros- 
 titute. No evidence was given that de- 
 fendant knew K.'s true name, her place 
 of residence, or that he had any previous 
 acquaintance with her or her family, 
 their circumstances or condition. Other 
 witnesses testified that they visited the 
 saloon while K. was there ; that there 
 were a number of men and women danc- 
 
 22 
 
What is. 
 
 ABDUCTION. 
 
 What iSr 
 
 The expression "taking out of the possession " means taking 
 the girl to some place where the person in whose charge she is 
 
 ing and drinking, and among them K.; 
 that they asked defendant if he had a 
 young girl from Newark, by the name 
 of K., but he denied any knowledge of 
 such a girl, and offered to allow them to 
 search the premises. While they were 
 talking K. disappeared. They inspected 
 the upper rooms, the appearances, as 
 described, indicating they were used for 
 purposes of prostitution. A physical 
 examination of K.'s person showed that 
 attempts at sexual intercourse had been 
 made, but that it had not been accom- 
 plished. Held, that the evidence failed 
 to sustain a conviction. People w. Plath, 
 IOC N. Y. 5go. See R. v. Olifier, lo Cox 
 Cr. Cas. 402. 
 
 A, a lady, persuades B, a girl under 
 sixteen, to leave her father's house and 
 come to A's house for a short time, for 
 the purpose of going to the play with 
 her. A has not abducted B. Steph. 
 Dig. Cr. L. (Am. Ed.) igg. 
 
 A, a girl under sixteen, who was in 
 service, was, as she was returning from 
 an errand, asked by B if she would go to 
 London, as B's mother wanted a serv- 
 ant, and he would give her ;^5 wages. 
 A and B went away together to Bilston, 
 where both were found, and B appre- 
 hended. Held, that this was not such a 
 taking, or causing to be taken, of A as 
 was sufficient to constitute the offence of 
 abduction. R. v. Meadows, I C. & K. 
 
 399. 
 
 A mere seduction does not amount to 
 an abduction under the N. Y. Rev. Stat- 
 utes. People V. Parshall, 6 Park. Cr. 
 (N. Y.) 129. 
 
 An indictment for abduction of a fe- 
 male of the age of fifteen years, with in- 
 tent to defile her, cannot be supported at 
 common law or under the North Caro- 
 lina act of 1789, c. 81, which relates to 
 abduction of children under the age of 
 fourteen years. State v. Sullivan, 85 N. 
 Car. 506. 
 
 What is. — A, a girl under sixteen, asks 
 B, by whom she has been seduced, to 
 elope with her, which he does. B. com- 
 mits abduction. Steph. Dig. Cr. L. (Am. 
 Ed.) IQ9 ; R. V. Biswell, 2 Cox Cr. Cas. 
 259. See R. V. Robins, i C. & K. 456. 
 The defendant- may be convicted, though 
 the abduction may be with the consent of 
 the female. Tucker v. State, 8 Lea 
 (Tenn.), 633. 
 
 The " taking" need not be by force ; so- 
 licitations or inducements are sufficient. 
 People V. Marshall, 59 Cal. 386 ; People 
 
 V. Carrier, 46 Mich. 442 ; People v. See^ 
 ley, 37 Hun (N. Y.), igo ; Slocum ». 
 People, 90 111. 274. 
 
 In People v. Carrier, 46 Mich. 442,. 
 Cooley, J., said: "The defendant in- 
 duced a brother of the girl to persuade 
 her to meet him, and after the inter- 
 view which there took place the girl went 
 off at once to Canada. How far, if at 
 all, this was induced by the persuasions 
 of the defendant was left to the jury on 
 the facts. As throwing light upon the- 
 intent, the prosecution was allowed to- 
 show that the girl had previously lived 
 with defendant in illicit relations in Can- 
 ada. The defendant claimed that the 
 evidence showed the girl herself pro- 
 posed the action which she took, and 
 that the defendant in seeking for the in- 
 terview had no other motive than to ex- 
 plain to her his conduct and motives in 
 another transaction in respect to which it 
 was expected her evidence was to be used 
 against him. The circuit court charged 
 the jury that before they could con- 
 vict they must be satisfied the defendant 
 enticed the girl away. " It may have 
 been done by open solicitation to go for 
 one purpose- or for another purpose. 
 It may have been done by designedly 
 portraying to her her situation, and the 
 result of going back to Mr. B., or the 
 place from which she came, in such a 
 light as to lead her to go to escape a re- 
 turn. If this were done -with the de- 
 sign of getting her to go, it is an en- 
 ticing, although the defendant may not 
 have asked her to go, and apparently 
 only consented to go with her ; but if he 
 had no design to get her to go away, and 
 did nothing to bring about such an end, 
 it would not be an enticing, and the de- 
 fendant could not be convicted." 
 
 " This instruction was correct. A man 
 cannot be suffered to evade the statute 
 by artfully avoiding a direct proposition 
 that she go off with him, when his con- 
 duct is equivalent to such a proposition, 
 and not only suggests it to the girl, but 
 is calculated and designed to induce her 
 to go. The judge also instructed the 
 jury that the previous relations of the 
 parties might be considered as bearing 
 upon the intent of the defendant in en- 
 ticing the girl away. This also was cor- 
 rect. The previous relations of the par- 
 ties were not conclusive, but they were 
 very significant. (People v. Jenness, 5 
 Mich 305.) It may be added, however, 
 that the evidence of subsequent conduct 
 
 33 
 
"What IB. 
 
 ABDUCTION. 
 
 What is. 
 
 cannot exercise control over her, for some purpose inconsistent 
 with the objects of such control. A taking for a time may amount 
 to abduction. 1 
 
 If the consent of the person from whose possession the girl is 
 taken is obtained by fraud, the taking is deemed to-be against the 
 will of such person.** 
 
 The fact that the offender supposes, in good faith and on reason- 
 able grounds, that the girl is more than sixteen years of age is 
 immaterial ; ^ but [it seems] it is not necessary that he should 
 either know or have reason to believe that she was under the 
 lawful care or charge of her father, mother, or some other 
 person.* 
 
 A, by improper solicitations or inducements, persuades B, a girl 
 
 was so conclusive of the unlawful intent 
 that the proof of previous misconduct 
 might well have been dispensed with." 
 See People v. Seeley, 37 Hun (N. Y.), igo. 
 
 A girl under eighteen was placed by 
 her father in the employ of C. She left 
 the service in about a week without the 
 knowledge or consent of her father. She 
 then led an immoral life until she met the 
 defendant. An improper intimacy at 
 once commenced between the defendant 
 and herself, and, at its beginning, he 
 proposed that she should go into a house 
 of prostitution and support him out of 
 the money made by her as an inmate of 
 such house. Held, that the defendant 
 was guilty, as the girl, when taken, was 
 in contemplation of the law in charge of 
 her father. People v. Cook, 6t Cal. 478. 
 
 A brought B, a girl under fifteen 
 years of age,, into the State of New Jer- 
 sey. He cohabited with her and inter- 
 posed his will or persuasion between her 
 and her guardian's control, so as to over- 
 come her intention to return to her 
 home. Held, that he abducted her. 
 5tate V. Gordon, 46 N. J. L. 432. 
 
 1. A persuades B, a girl under sixteen, 
 to leave her father's house and sleep with 
 ihim for three nights, and then sends her 
 ■back. A has abducted B. Steph. Dig. 
 •Cx. L. (Am. Ed ) igg ; R. v. Timmins, 
 ■Bell, 276. 
 
 It is not necessary that the illicit inter- 
 .,course should continue for an indefinite 
 or considerable length of time. A single 
 act is sufficient. State v. Feasel, 74 Mo. 
 
 ■524- 
 
 A statute providing for the punish- 
 ment of any person who for purposes of 
 prostitution shall entice away a female 
 -of less than sixteen from her father, 
 ■mother, guardian, or other person having 
 the legal charge of her person, covers 
 cases of girls who are living in a family 
 iwith the knowledge of a parent who does 
 
 34 
 
 not object, or who has delegated the 
 charge of the girl to the head of the fam- 
 ily. It also applies to girls who are not 
 under strict legal guardianship, but are 
 orphans or abandoned by their parents 
 and are given a home by charitable per- 
 sons. People V. Carrier, 46 JMich. 442. 
 See State v. Ruhl, 8 Iowa, 447. 
 
 It is sufficient to constitute the crime 
 that a girl living with her parents is in- 
 duced by persuasion or enticements to 
 go to some convenient place from her 
 fatheir's house, in the immediate neigh- 
 borhood, for the purpose of illicit inter- 
 course, where she is gone only for an 
 hour or two at a. time. Slocum v. Peo- 
 ple, go 111. 274. 
 
 2. A induces B to permit his daugh- 
 ter, C, to go away by falsely pretending 
 that he (A) will find a place for C. A 
 abducts C. Steph. Dig. Cr. L. (Am. Ed.) 
 igg ; R. v. Hopkins Car. & M. 254. 
 
 The prisoner represented to the girl's- 
 mother that he had secured a situation 
 for the daughter. He took the girl 
 away, but' kept her with him from Mon- 
 day to Friday, and slept with her every 
 night, and then took her home. Held, 
 that he was guilty of abduction. R. v. 
 Hopkins C. & M. 254. 
 
 ■ The defendant falsely represented to a 
 woman that he had procured her a situa- 
 tion as a servant. He took her to a 
 house of prostitution and effected her 
 defilement. Held, that the unlawful in- 
 tent could fairly be inferred from the 
 end attained. Beyer v. People, 86 N. 
 Y. 36g. 
 
 3. A takes B, a girl under sixteen, 
 out of her father's possession, believing 
 her upon good grounds to be eighteen. 
 A has abducted B-. Steph. Dig. Cr. L. 
 (Am. Ed.) igg; R. v. Prince, L. R. 2 C. 
 C. R. 154 ; R. V. Robins, i C. & K. 456. 
 
 4. People V. Cook, 61 Cal. 478. The 
 English cases hold the contrary view. 
 
What is. 
 
 ABDUCTION. 
 
 Chaste Character. 
 
 under sixteen, to leave her father's house ; or induces B, a woman 
 over sixteen years of age, to go with him, the purpose of A being 
 to use B for prostitution. A is guilty of abduction. ^ 
 
 1. People V. Marshall, 59 Cal. 386; 
 People V. Cook, 61 Cal. 478 ; Slocum v. 
 iPeople, go 111. 274. See Beyer z^. People, 
 86 N. Y. 369 ; Schnicker v. People, 88 
 N. Y. 192 ; People v. Parshall, 6 Park 
 Cr. (N. Y.) 132 ; R. v. Miller, 13 Cox 
 Cr. Cas. 179. 
 
 Prostitution means common indis- 
 criminate intercourse with men and not 
 with one man. Osborn v. State, 52 Ind. 
 526. 
 
 Purpose of prostitution as well as tak- 
 ing must be shown. People v. Plath, 
 100 N. Y. 590. 
 
 The prosecutrix, a German girl about 
 sixteen years of age, who had been in this 
 Country about three weeks, went to a 
 house of prostitution kept by the prisoner, 
 not knowing the character of the house, 
 for the purpose of obtaining employment 
 as a domestic ; the prisoner detained her 
 there by exciting her fears that if she left 
 she would be arrested, and by keeping 
 the outer door locked ; the prisoner plied 
 her daily with solicitations to consent to 
 the defilement of her person, but she re- 
 fused ; finally the prisoner told her to go 
 upstairs with a man,- and upon her re- 
 fusal, opened the door of the room where 
 she was and shoved her into the hall, 
 whereupon she went upstairs to her room, 
 and in a half-hour after a man called the 
 "boss" came to her room with another 
 man and left him there, and this man by 
 force defiled her. Held, that the evidence 
 was sufficient' to sustain a conviction. 
 Schnicker v. People, 88 N. Y. 192. . 
 
 The purpose of the defendant must be 
 prostitution or concubinage, and not 
 merely illicit sexual intercourse. Os- 
 born V. State, 52 Ind. 526 ; Slocum w. 
 People, 90 111. 274 ; Corn v. Cook, 12 
 Mete. (Mass.) 93 ; Carpenter v. People, 
 8 Barb. (N. Y.) 603 ; State v. Ruhl, 8 
 Iowa. 447 ; State v. Stoyell, 54 Me. 24. 
 
 Seduction does not amount to abduc- 
 tion. People V. Parshall, 6 Park Cr. 
 (N. Y.) 474- 
 
 Under the N. Y. Penal Code, § 282, 
 the pur-pose of the abduction is accom- 
 plished if merely illicit intercourse is the 
 purpose. It is sufficient if the woman is 
 induced by solicitation to go to a place 
 to meet the accused and there has sexual 
 intercourse with him. People v. Seeley, 
 37 Hun (N. Y.), 190. 
 
 Where, upon the trial of an indictment. 
 
 lying upon his statements, was induced 
 by false representations on the part of 
 the prisoner, to the effect that he had 
 procured her a situation as a servant in 
 a respectable family, to go with him to a 
 disreputable house, where she was, in 
 spite of opposition and resistance and 
 efforts to escape on her part, by force, 
 menace, or duress, defiled, held, that 
 the unlawful intent of the prisoner could 
 fairly be inferred from the end attained ; 
 and that the evidence authorized a con- 
 viction. Beyer v. People, 86 N. Y. 
 369. 
 
 Chaste Character. — The law will pre- 
 sume the woman's previous life to be 
 chaste, and the burden of proof is on the 
 defendant to show otherwise ; and her 
 previous virtue cannot be impeached by 
 her lewd life and conversation after she 
 had been enticed away and had her mind 
 and morals corrupted by the defendant. 
 Slocum V. People, 90 111. 274. Compare 
 Kaufiman v. People, 11 Hun (N. Y.), 
 82 ; People v. Parshall, 6 Park Cr. (N. 
 Y.) 129 ; Carpenter v. People, 8 Barb. 
 (N. Y.) 603. "Previous chaste charac- 
 ter" means not merely a reputation for 
 chastity, but actual personal virtue. A 
 single act of illicit intercourse on the 
 part of the woman is a defence. Lyons 
 V. State, 52 Ind. 426 ; People v. Rode- 
 rigas, 49 Cal. 9. If the proof shows that 
 the female was unchaste and lewd, the 
 defendant 'cannot be convicted. Jen- 
 kins V. State, 15 Lea (Tenn.), 674. 
 
 In a prosecution'for enticing a female 
 away for purposes of prostitution, evi- 
 dence of previous illicit relations and of 
 the subsequent conduct of the partiesis ad- 
 missible as bearing upon defendant's in- 
 tent in enticing her away. Evidence of 
 former illicit relations is significant 
 though not conclusive in its bearing upon 
 the intent of one who is charged with 
 enticing away a female for prostitution ; 
 but it may properly be dispensed with 
 where proof of their subsequent conduct 
 is conclusive as to the unlawful intent. 
 People V. Carrier, 46 Mich. 442. 
 
 At the trial for enticing a woman of 
 chaste life and conversation to a house 
 of ill-fame for the purposes of prostitu- 
 tion, the burden is on the prosecution to 
 prove the chastity of the woman. Com. 
 V. Whittaker. 131 Mass. 224. See Kauff- 
 man v. People, 11 Hun (N. Y.). 82. Com- 
 
 it appeared that the prosecutrix unsus- /are Slocum v. People, 90 111. 274 ; Lyons 
 picious of any unlawful intent, and re- v. State, 52 Ind. 426; 
 
 25 
 
Definition. ABE YANCE. Definition. 
 
 ABETTING. See ACCESSORY. 
 
 ABEYANCE. (See CORPORATIONS ; OFFICERS ; REAL PROP- 
 ERTY). — This word as applied to real property, whether estates or 
 dignities, denotes that the same are in expectation, remembrance, 
 or intendment of the law. Abeyance is said to be of two sorts, 
 being either (i) Abeyance of the fee simple or (2) Abeyance of 
 the freehold. The first is where there is an actual estate of free- 
 hold in esse, but the right to the fee simple is suspended, and is to 
 revive upon the happening of some event ; e.g., in the case of a 
 lease to A for life, remainder to the right heirs of B, who is alive, 
 the fee simple is in abeyance until B dies.^ Similarly, during the 
 incumbency of each successive incumbent of a church, he having 
 only a freehold interest therein, the fee simple is in abeyance.* 
 The second species of abeyance, i.e., an abeyance of the freehold 
 itself, occurs on the death of an incumbent, and until the appoint- 
 ment of his successor.* But saving this one case, the freehold is 
 never in abeyance, and cannot possibly be so. 
 
 It was customary in speaking of a thing in abeyance to say 
 that it was " in nubibus " (which was rather a profane expression), 
 or " ijt gremio legis," * the latter phrase denoting that the fee sim- 
 ple or freehold which was in abeyance was meanwhile under the 
 care or protection of the law. 
 
 There is no abeyance either of the fee simple or of the freehold 
 in the case of conveyances operating under the Statute of Uses, 
 for in these what is not given away remains in the grantor until 
 it is so given. ^ 
 
 The unchasteness must be specifically mission of the crime, and that it was 
 
 proved. Crozier v. People, I Park Cr. perpetrated by the accused. People v. 
 
 (N. Y.) 453; People v. Kenyon, 5 Park Plath. 100 N. Y. 590. 
 
 Cr..(N. Y.) 254; People v, Kane, 15 Authorities for Abduction. — i Russell 
 
 Abb. Pr. (N. Y.) 15; Conkey v. People on Crimes (g Am. Ed.), 940 et seq.; Bish- 
 
 I Abb App. Dec. (N. Y.) 418. op's Cr. Law; Wharton's Cr. Law; Des- 
 
 Evidenoe. — A woman who, having ty's Cr. Law ; Roscoe's Cr. Ev. 
 
 been taken away, has been married to 1, Co. Litt. 342 b. 
 
 the offender is, notwithstanding that 2. Litt. § 644-6. 
 
 marriage, competent to be a witness 3. Litt. § 647. 
 
 against him. R. v. Perry, i R. C. & M. 4. Carter v. Barnardiston, i P. Wms. 
 
 949; R. V. Wakefield, 2 Lewin C. C. 516. 
 
 279 ; State v. Gordon, 46 N. J. L. 432. 5. Brown's Law Diet. (Sprague's Ed.). 
 
 To support a conviction under the " If a conveyance be made to A for life, 
 N. Y. Penal Code for abduction, it must the remainder to the heirs of B then liv- 
 be proved both that there was a "tak- ing, and livery be made to A, Mr. Fearne 
 ing" within the meaning of the act, and contends that the inheritance, continues 
 that such taking was for the purposes of in the grantor, because there is no pas- 
 prostitution. .The word "taking" im- sage open for its transmission at the time 
 plies some persuasive inducement on of the livery. The transmission may 
 the part of the accused, not a mere per- rest in abeyance or expectation, until the 
 mission or allowance to follow a life of contingency or future event occurs to give 
 prostitution. A conviction cannot be it operation; but the inheritance in the 
 sustained upon the unsupported evidence mean time continues in the grantor, for 
 of the female alltged to have been ab- the very plain and unanswerable leason 
 ducted as to either element constituting that there is no person in rerum natura 
 the crime, i.e., the taking or the intent, to receive it; and he or his heirs must 
 Proof must be given, aside from her be entitled, on the determination of the 
 testimony, tending to establish the com- particular estate, before the contingent 
 
 36 
 
Abide the Judgment, 
 
 ABIDE. 
 
 Abide the Decision. 
 
 If a freehold could commence to pass in futiiro, there would be 
 an abeyance and want of a tenant against whom to bring a. prcecipe^ 
 and the law will not suffer the land to be in abeyance a single 
 day, if possible to prevent this.^ 
 
 ABIDE. — When-used as to an order of court, it means to perform, 
 to execute, to conform to such order.'-* 
 
 remainder can take place, to enter and 
 resume the estate. He treated \yith ridi- 
 cule the notion that the fee was in abey- 
 ance, or in nubibus, or in mere expecta- 
 tion or remembrance, without any defi- 
 nite or tangible existence ; and he con- 
 sidered it an absurd and unintelligible 
 fiction. Fearne on Remainders, 452—458. 
 Of the existence of such a technical rule 
 of the common law there can be no 
 doubt, The principle was perhaps coeval 
 with the common law, that during the 
 pendency of a contingent remainder in 
 fee, upon a life estate, as in the case al- 
 ready stated, the inheritance was deemed 
 to be in abeyance. But a state of abey- 
 ance was always odious, and never ad- 
 mitted but from necessity, because, in 
 that interval, there could not be any seisin 
 of the land, nor any tenant to \.\ie precipe, 
 nor any one of the ability to protect the 
 inheritance from wrong, or to answer for 
 its burdens and services. This was the 
 principal reason why a particular estate 
 for years was not allowed to support a 
 contingent remainder in fee. Hob. 153. 
 The title if attacked could not be com- 
 pletely defended, because there was no 
 one in being whom the tenant could pray 
 in and to support his right ; and upon a 
 writ of right patent, the lessee for life 
 could not join the niise upon the mere 
 right. The particular tenant could mt 
 be punishable for waste, for the writ of 
 waste could only be brought by him who 
 was entitled to the inheritance. So 
 many operations of law were suspended 
 by this sad theory of an estate in abey- 
 ance, that great impediments were 
 thrown in the way of it, and no acts of 
 the parties were allowed to put the im- 
 mediate freehold in abeyance by limit- 
 ing it to commence «»yM/«r(7. . . . Though 
 the good sense of the thing and the 
 weight of liberal doctrine are strongly 
 opposed to the ancient notion of an abey- 
 ance, the technical rule is that livery of 
 seisin takes the reversion or inheritance 
 from the grantor, and leaves him no 
 tangible or disposable interest. Instead 
 of a reversion he has only a potential 
 ownership subsisting in contemplation 
 of law, or a possibility of reverter ; and 
 Mr. Preslon (on Estates, i, 225 ; on Ab- 
 stracts, 2, 103-106) insists that an estate 
 
 27 
 
 of freehold depending on another estate 
 of freehold, and limited in contingency, 
 must be in abeyance and not in the 
 grantor," 4 Kent. Com. 258-260. See 
 I Washburne's Real Prop. (4th Ed.) 71, 
 72 ; Terrett v. Taylor, 9 Cranch (U. S.) 
 43 ; Dartmouth College Case,' 4 Wheat. 
 (U. 8)518, 691. 
 
 1. The necessity under the feudal sys- 
 tem that there should be always some 
 one ready to perform the lord's, services 
 was not the'only reason which introduced 
 the maxim of the common law that a free- 
 hold can never be placed in abeyance. 
 It^'had a better foundation which con- 
 tinues still to exist, and to exist in Penn- 
 sylvania, that there should be always 
 some person to answer the real actions 
 brought for the, recovery of the property. 
 Lyle V. Richards, 9 S, & R. (Pa,) 322. 
 
 2. Hodge ti. Hodgdon, 8 Cush. (Mass.> 
 294, citing Taylor v. Hughes, 3 Greenl. 
 (Me.) 433. 
 
 " Abide the Judgment of the Court." — A 
 condition of a recognizance on an appeal, 
 which is conditioned for the defendant's 
 appearance " to await the action of the 
 court," is not sufficient when the statute 
 prescribes the words "to abide the judg- 
 ment of the court." Wilson u. Stale, 7 
 Tex. App, 38, ' 
 
 "Abide by" an Award, — The meanings 
 of the term " abide by" is not the same 
 as "to acquiesce in" or "not dispute." 
 To abide by an award is the same as to- 
 abide an award, to stand to the determi- 
 nation of the arbitrators, and to take the 
 consequences of the award. It means 
 simply to await the award without revok- 
 ing the submission. It can never be con- 
 strued to mean that the defendant should 
 not be at liberty to dispute the validity of 
 any award that might be made. Shaw v. 
 Hatch, 6 N. H. 162; see Marshall v. 
 Read. 48 N, H, 36, 
 
 " Abide the Decision " — The plaintiff in 
 a bill in equity, praying for a discovery, 
 for an account of the rents and profits of 
 real estate, to which he claimed title as 
 tenant in common with the defendant, 
 who denied his title, and for general re- 
 lief, petitioned at law for partition of the 
 premises, and by agreement, with consent 
 of the court, a docket entry was made in 
 the action at law that it was " to abide de~ 
 
Definition, 
 
 ABILI T Y—ABOR TION. 
 
 At Common La'^. 
 
 ABILITY. — In a California statute setting forth the grounds for 
 divorce, ability was held to mean the possession by the husband 
 of means in property to provide such necessaries, not his capacity 
 for acquiring such means by labor.^ 
 
 ABLE. — A Maine statute declares that expenses incurred for pro- 
 viding nurses, etc., to an infected person shall be at the charge of 
 the person sick, " if able." Held, that the possession of $600, in 
 available personal securities, rendered a person " able" in the 
 meaning of the statute, where the charges were $176.* 
 
 ABLE-BODIED. — That the term "able-bodied" does not imply' 
 an absolute freedom from all physical ailment we think evident. 
 We think it imports an absence of those palpable and visible de- 
 fects which evidently incapacitate the person for performing the 
 ordinary duties of a soldier.^ 
 
 , ABODE. See DOMICILE. 
 
 ABORTION. (See ACCESSORY.) — 1. Any person who does any 
 act calculated to prevent a child being born alive is guilty of abor- 
 tion.* 
 
 2. At Common Law.^If the act be done with the mother's con- 
 sent, and the child has not quickened, it is not a crime by the 
 common law ; nor is procuring an abortion a felony, if the child 
 has quickened.' When, in consequence of the means used to 
 
 cision" in the suit in equity. A verdict was 
 afterwards returned by a jury on' an issue 
 framed in the suit in equity to try the 
 title in the premises, and at the argument 
 of exceptions taken at the trial an amend- 
 ment of this verdict was agreed to, and 
 the case was sent to a master to state an 
 account. Held, that the docket entry 
 did not require the petitioner at law to 
 await the final decree in equity, but par- 
 tition should be ordered in conformity 
 with the title so determined. Hodges v. 
 Pingree, 108 Mass. 585. 
 
 1. Washburn v. Washburn, g Gal. 475. 
 An English statute, 9 Geo. 4. c. 14. s. 6, 
 provides that no action could be brought 
 to charge a person by reason of a repre- 
 sentation given concerning the ability of 
 another person unless reduced to writing 
 and signed. It was held that the repre- 
 sentation should relate to the ability of 
 the other person effectually to perform 
 and satisfy the engagement of a pecuni- 
 ary nature into which he has proposed 
 to enter. Lydez/. Barnard, i M. & W. loi. 
 
 2. Hampden v. Newburgh. 67 Me. 370. 
 
 3. A physical disability or bodNy infir- 
 mity, not apparent, does not exempt a 
 person from enrolment in the militia. 
 The enrolling officer is the judge, and 
 any error of judgment cannot be inquired 
 into collaterally, such as a suit for tres- 
 
 38 
 
 pass for taking and selling a mare, prop- 
 erty of plaintiff, as an amercement for 
 non-appearance at training. Darling v. 
 Bowen, 10 Vt. 148. There being no ex- 
 ception made by the charter of a city or 
 the ordinance imposing a tax in favor of 
 persons not able bodied, and no consti- 
 tutional restriction upon legislation in 
 this respect, the fact that a citizen upon 
 whom the tax is imposed is not able- 
 bodied constitutes no defence to the im- 
 position of the tax. City of Malcomb v. 
 Twaddle, 4 Bradw. (111.) 254. 
 
 4. See Abrams v. Foshee, 3 Iowa, 
 278; Cotton 7' .Cotton, 5 Martin (La), 95. 
 
 5. At Common Law. — " After a patient 
 investigation we are forced to the con- 
 clusion that it never was a punishable 
 offence at common law to produce, with 
 the consent of thd mother, an abortion 
 prior to the lime when the mother be- 
 came quick with child. It was not even 
 murder at common law to take the life of 
 the child at any period of gestation, even 
 in the very act of delivery." Hines, J. 
 Mitchell J/, Com., 78 Ky, 204; s. c, 39 
 Am. Rep. 227. See Com. v. Bangs, 9 
 Mass. 387; Com. v. Pj.rker, 9 Mete. 
 (Mass.) 263; s. c, 43 Am. Dec. 396; 
 Smith V. State, 33 Me. 48; State v. Coop- 
 er, 22 N. J. L. 52; s. c, 51 Am. Dec. 
 248; State V. Slagle, 82 N, Gar. 653; 
 
Intention, 
 
 ABORTION. 
 
 Nozious Xbing, 
 
 secure an abortion, the death of the woman ensues, then it is mur, 
 der at common law ; but by statute in some States it is made man- 
 
 slaughter.i 
 
 3. Intention. — By the giving of any drug, noxious thing or other 
 matter or substance, or the use of any instrument calculated to 
 produce miscarriage,'-* whether the object be attained or not ; if 
 
 People V. Sessions, 26 N. W. Repr. 
 (Mich.) 291; Ann v. State, II Huniph. 
 (Tenn.) 159; Abrams v. State, 3 Iowa, 
 274; s. c, 66 Am. Dec. 77; Hatfield v. 
 Gano, 15 Iowa, 178. The contra view 
 appears to have been followed by the 
 Pennsylvania Supreme Court. Mills v. 
 Com., 13 Pa. St. 633; Com. v. Demain, 
 6 Pa. Law Jour. 29; s. c, Brightly, 441. 
 
 1. When Murder. — 4 Black Com. 201; 
 I Bishop Cr. L. 328; State v. Moore, 25 
 Iowa, 128; State v. Dickinson, 41 Wis. 
 299. 
 
 2. Intention, — State v. Owens, 22 
 Minn. 238; Wilson v. State, 2 Ohio St. 
 319; State V. Gedicke, 43 N. J. L. 86; 
 State V. Fitzgerald, 49 Iowa, 260; s. c, 
 31 Am. Rep. 148; State v. Murphy, 3 
 Dutch. (N. J.) 112; R. V. Hillman, 9 
 Cox Cr. Cas. 386. If the drug is taken 
 in the absence of the giver, he "causes 
 it to be taken." R. v. Wilson, Dearsly 
 & B. 127; People j;. Josselyn, 39 Cal. 396; 
 Stephen's Dig. Cr. L. (Am. Ed.) 176, note. 
 Even if the intention exists only in his 
 own mind. R. v. Hillman, Leigh & C, 
 343; State V. Stewart, 52 Iowa, 284. To 
 constitute an administering there need 
 not be an actual delivery by the hand of 
 the prisoner. R. v. Harley, 4 C. & P. 
 370. It was proved that the woman re- 
 quested the prisoner to get her some- 
 thing to procure miscarriage, and that a 
 drug was both given by the prisoner and 
 taken by the woman with that intent, 
 but that the taking was not in ihe pres- 
 ence of the prisoner. It was held, never- 
 theless, that the prisoner had caused the 
 drug to be taken within the meaning of 
 the statute. R. v. Wilson, Dears. & E. 
 C. C. 127; R. V. Farrow, Id. 164, ace. 
 See R. V. Fretwell, 31 L. J., M. C. 145. 
 Mere belief of the existence of pregnancy 
 is sufEcient to justify the inference of in- 
 tent. Powe V. State, 48 N. J. L 34. 
 A husband assaulted and beat his wife, 
 then about three months pregnant. 
 Shortly after such beating she miscar- 
 ried. It was not proved that the husband 
 desired or intended such result. Held, 
 that a conviction for abortion could not 
 be sustained. Slattery v. People, 76 
 111 217. 
 
 Where drugs were administered, and 
 an instrument thrust into the body of 
 
 the deceased, with specific intent to pro- 
 duce an abortion, these acts imply malice 
 aforethought. State v. Thurman, 66 Iowa, 
 693; State V. Owens, 22 Minn. 238; State 
 V. Gedicke, 43 N. J. L. 86, where defend- 
 ant prescribed "Dr. Clarke's Female Peri- 
 odical Pills;" R. V. HoUis, 12 Cox Cr. 
 Cas. 463 ; R. v. Hennah, 13 Cox C. C. 548. 
 Noxious Thing.^A small quantity of 
 savin, which was sufficient only to produce 
 a little disturbance of the stomach, held 
 not a noxious thing. R. v. Perrj, 2 Cox 
 Cr. Cas. 223. This case doubted and 
 criticised, Storer & H. Abor. 196. If the 
 drug is liable to cause injury to a preg- 
 nant woman, it is noxious. Dougherty 
 V. People, I Colo. 517. Upon an in- 
 dictment for administering savin, the 
 charge was that the prisoner administered 
 "six ounces of the decoction of a certain 
 shrub called savin then and there, being 
 a noxious and destructive thing." It 
 appeared that the prisoner had prepared 
 the medicine by pouring boiling water 
 on the leaves of the shrub, and the medi- 
 cal men examined stated that such pre- 
 paration is called an infusion and not a 
 decoction. It was objected that the medi- 
 cine was misdescribed. The objection 
 was overruled. The court said infusion 
 and decoction are ejusdem generis, and 
 the variance is immaterial. The question 
 is whether the prisoner administered 
 any matter or thing to the woman with 
 intent to procure abortion. R. v. 
 Phillips, 3 Campb. 78. The authority of 
 this decision appears to have been recog- 
 nized in the following caie. The prisoner 
 was indicted for administering saffron 
 to the prosecutrix with intent to procure 
 abortion. The counsel for the prisoner 
 cross-examining as to the innocuous 
 nature of the article administered, 
 Vaughan, B., said, "Does that signify? 
 It is with the intention that the jury 
 have to do; and if the prisoner adminis- 
 tered a bit of bread merely with the in- 
 tent to procure abortion, it is sufficient 
 to constitute the offence contemplated 
 by the act of Parliament." R. v. Coe, 6 
 C. & P. 403. The words in the clause 
 of the statute under which the prisoner 
 appears to have been indicted in this 
 case were "any medicine or other 
 thing." Where the prisoner was indiclej 
 
 29 
 
AcccsBOTiei. 
 
 ABORTION. 
 
 Quick with Child, 
 
 miscarriage be the intention, the crime is complete. The drug 
 administered may even be harmless.* 
 
 4. The administration of a drug, or the actual use of an instru- 
 ment, is not necessary to the incrimination ; if any person sells or 
 supplies any drug or thing to be taken, or any instrument to 
 be used, knowing that miscarriage is the intention, he is an 
 accessory.® 
 
 5. Pregnant — ftuick with Child. — It is immaterial whether or not 
 the woman was pregnant, •* though a miscarriage can be effected 
 at aay time after actual ccmception.* A woman is " quick witk 
 
 for supplying "a certain noxious thing," 
 and the evidence was that the thing sup- 
 plied was of a perfectly harmless charac- 
 ter in itself, though if taken with the 
 belief that it would procure a miscarriage 
 it might, by acting on the imagination, 
 produce that effect, it was held, that the 
 conviction must be quashed, as there was 
 no evidence that the thing supplied was 
 noxious. R. v. Isaacs, i L. & C. 220; 
 32 L. J., M. C. 52. But where there 
 was no evidence of the ingredients of 
 the thing administered, or of its character 
 being harmless or otherwise, except that 
 in fact it made the witness ill and pro- 
 duced miscarriage, it was held, that there 
 was evidence of its being a noxious thing. 
 R. V. Hollis, 12 Cox C. C. R. 463. If 
 the drug be innocuous if taken in small 
 quantities, but harmful if taken in large, 
 it would appear to be a noxious thing. R. 
 ■V. Cramp, 5 Q. B. D. 307; R. v. Hennah, 
 13 Cox, 547. 
 
 1. Accessories. — Com. v. W , 3 
 
 Pittsb. (Pa.) 463, where defendant ad- 
 vised excessive exercise. Evidence is 
 admissible to show that the accused re- 
 ceived the woman upon whom the abor- 
 tion was committed to board, knowing 
 her condition,, for the purpose of having 
 an abortion performed upon her, and 
 that he had procured a physician to 
 operate upon her. Com. v. Adams, 127 
 Mass. 15. In People v. Vedder, 98 N. 
 Y. 630; s; c, 34 Hun (N. Y.), 28,0, it was 
 held, that a woman permitting an abor- 
 tion is not an accomplice under the 
 Penal Code, § 294. To same effect 
 Com. V. Boynton, 116 Mass. 343; Dunn 
 V. People, 29 N, Y. 523; Com. v. Brown, 
 121 Mass. 69; Com. z/. Wood, 11 Gray 
 (Mass.), 85; State v. Owens, 22 Minn. 
 238; State V. Hyer, 39 N. J. L. 598. Al- 
 though the woman is not an accomplice, 
 her moral implication may properly be 
 considered in weighing her testimony. 
 Watson V. State, g Tex. App. 237. It is 
 not a crime for her to take the potion. 
 State V. Hyer, 39 N. J. L. 598. Compare 
 Solander v. People, 2 Colo. 48. A father 
 
 is accessory who consents to the attempt. 
 Watson V. State, 9 Tex. App. 237. The 
 woman's evidence is competent against 
 those mutually engaged with her in the 
 act. Solander v. People, 2 Colo. 48; 
 People V. Vedder, 98 N. Y. 630. 
 
 2. Consec[ueiice not Material. — R. v. 
 Coe, 6 C. & P. 403; U. S. V. Bott, 11 
 Blatchf. (U. S.)345; Dougherty w. People, 
 I Colo. 514; State v. Gedicke, 43 N. J. 
 L. 86; Com. v. Morrison, i6Gray (Mass.), 
 224. The indictment need not allege 
 what the drug was. Watson w. State, g 
 Tex. App. 237; Com. v. Morrison, 16 
 Gray (Mass.) 224. Nor that it was nox- 
 ious. Com. V. Morrison, 16 Gray (Mass.), 
 224. The drug may be harmless. State 
 V. Fitzgerald, 49 Iowa, 260; s. c, 31 Am. 
 Rep. 148. ■ See State v. Gedirke, 43 N. 
 J. L. 86. 
 
 3, Pregnant— Quick with Child — R. v. 
 Goodchild, I Den. C. C. 187; s. c, 2 
 Car. & K. 293; Com. v. Taylor, 132 
 Mass. 261; R. V Titley, 14 Cox Cr. C. 
 502. In Iowa it has been held that the 
 pregnancy, as well as the administering 
 of drugs or use of instruments, must be 
 proved beyond a reasonable doubt. 
 State V. Stewart, 52 Iowa, 284. In 
 New Jersey mere belief of the existence 
 of pregnancy is sufficient, with other 
 circumstances, to justify the inference 
 of intent. Powe v. State, 48 N. J. L. 
 34. In Vermont and Massachusetts it is 
 held that it is immaterial whether the 
 foet^is be alive or not. State v. Howard, 
 22 Vt. 380; Com. V. Wood, II Gray 
 (Mass.) SSj Com. v. Taylor, 132 Mass. 
 261; Smith w. State, 33 Me. 48; s. c.,54 Am. 
 Dec. 607. In Michigan the foetus must 
 have quickened. People v. McDowell, 
 30 N. W. Repr. 713'. In Pennsylvania 
 it is held that the moment the womb is 
 instinct vfith embryo life, and gestation 
 has begun, the crime may be perpetrated. 
 Mills V. Com., 13 Pa. St. 631. 
 
 % Evans v. People, 49 N. Y. 86; Wil- 
 son V. State, 2 Ohio St. 319; State v. 
 Fitzgei-ald, 49 Iowa, 260; s. c, 31 Am. 
 Rep. 148. 
 
 30 
 
Death of Child. 
 
 ABORTION. 
 
 Evidence. 
 
 child " from the period of conception and the commencement of 
 gestation, but is only " pregnant with a quick child " when the 
 child has become quickened in the womb.' 
 
 6. Death of Child. — If a person intending to procure an abortion 
 does an act which causes a child to be born so rnuch earlier than 
 the natural time that it is born in a state much less capable of 
 living, and afterwards dies in consequence of its exposure to the 
 external world, the person who, by this misconduct, so brings the 
 child into- the world, and puts it thereby in a situation in which 
 it cannot live, is guilty of murder; and the mere existence of a 
 possibility that something might have been done to prevent tha 
 death will not render it less a felony. ** 
 
 7. Evidence. — The evidence of the woman upon whom the abor- 
 tion was produced is admissible; ^ but not her dying declarations, 
 unless homicide is charged.'* The testimony of a physician who 
 attended the woman subsequent to the procuring of the abortion 
 is not admissible;' but the evidence of a physician who made a 
 post-mortem, examination of the woman is competent test^imony.** 
 Evidence that instruments calculated to produce abortion were 
 found in possession of the person cjiarged is admissible.'' The 
 instruments may be ^exhibited to the jury.* It is competent to 
 show that the accused had previously used the same treatment on 
 the same woman,® and that he had operated on others ;i" but it is 
 
 1. Evans v. People, 49 N. Y. 86; R. v. 
 Wycherly, 8 C. & P. 262. This distinc- 
 lion is denied in State v. Cooper, 2 Zab. 
 (N. J.) 52. In an indictment the phrase 
 "woman with child" is equivalent to 
 "pregnant woman." Eckhardt v. Peo- 
 ple, 83 N. Y. 462; s. 1.., 38 Am. Rep. 462. 
 
 2. Death of Child.— R. v. West, 2 Cox 
 Cr. Cas. 500; Wharton's Crim. L. § 942; 
 Storer & H. on Abor. 154 et seq.; Com. 
 V. Brown, 14 Gray (Mass.), 419. 
 
 3. Evidence. — People v. Vedder, 98 
 N.Y. 630; iWaine v. People, 16 N. Y. 
 Sup. Ct. 113: Com. V. Wood, 11 Gray 
 (Mass.), 85; Com. w. Boynton, iibMass. 
 343; Watson V. State, 9 Tex. App. 237; 
 Dunn V. People, 29 N. Y. 523; State v. 
 Gedicke, 43 N. J. L. 86. The woman's 
 testimony must be corroborated. People 
 V. Josselyn, 39 Cal. 393. 
 
 4. Railing z/. Com., 2 East Repr. (Pa.) 
 892; s. c, I Atl. Repr. 314; People v. 
 Davis. 56 N. Y. 95; Maine v. People, 9 
 Hun (N. Y.), 113: State v. Harper, 35 
 Ohio St. 78; s. c, 35 Am. Rep. 596; R. 
 V. Hind, 8 Cox Cr. Cas. 300; Wooten v. 
 State, 39 Ga. 223; Storer & H. Abor. 208. 
 
 In Indiana and Wisconsin it has been 
 held that dying declarations are admis- 
 sible. Montgomery v. State, 80 Ind. 
 338; s. Cj, 41 Am. Rep. 815; State v. 
 Dickinson, 41 Wis. 299. 
 
 5. People w. Murphy, loi N. Y. 126, 
 where a physician was sent by the pub- 
 lic prosecutor to make an examination 
 of the woman. 
 
 6. People V. Sessions, 26 N. W. Repr. 
 (Mich.) 291. 
 
 7. People V. Vedder, 34 Hun (N. Y.), 
 280; s. c, 98 N. Y. 630. Evidence that 
 the accused had an instrument in posses- 
 sion five months before the time of the 
 alleged operation is admissible. Com. v. 
 Blair, 126 Mass. 40. 
 
 8. Com. V. Brown, 14 Gray (Mass.), 
 419. 
 
 9. At the trial of an indictment for un- • 
 lawfully using a certain instrument, with 
 intent; to cause the miscarriage of a 
 woman, evidence rhat, in addition to 
 using the instrument, the defendant also 
 administered other unlawful treatment 
 for the same purpose, and evidence that 
 he used the same treatment on the same 
 woman upon two other occasions than 
 that named in the indictment, and but 
 a few days previously thereto, is compe- 
 tent to show his intent and his knowl- 
 edge of the pregnant condition of the 
 woman. Com. v. Corkin, 136 Mass. 
 429. 
 
 10. Com. V. Brown, 14 Gray (Mass.), 
 419. See Com. v. Holmes, 103 Mass. 
 440. 
 
 31 
 
Evidence. A^BORTION— ABOUT. Definition. 
 
 not competent to prove a similar offence.^ Where a woman- con- 
 spired with others to produce an abortion upon her, her acts and 
 declarations in furtherance of the common purpose are evidence 
 against the accessories.® It may be shown that the drug admin- 
 istered was, in popular opinion, supposed to cause abortion. ^ , 
 
 Evidence is admissible to show that the house of the accused 
 where the abortion was performed was one of ill-fame ;* also ad- 
 vertisements tending to show that the accused was engaged in the 
 business of procuring abortions.^ The health and spirits of the 
 woman, also stains and marks upon her bedding, may be showji.® 
 arhe parts of the body of the dead woman, preserved in spirits, may. 
 be exhibited to the jury in connection with the testimony of the 
 physician who made the post-mortem examination.'' The sexual 
 intercourse between the woman and the accused, or between her 
 and a third person, may be proved.^ The corpus delicti must be 
 established.* The fact of the pregnancy, as well as the adminis- 
 tering of the dru^s or the using of instruments, must be proved 
 beyond a reasonable doubt. ^" A physician testifying as an ex- 
 pert that he has discovered no traces 6f an abortion in a certain 
 case may properly be asked whether such traces would exist under 
 certain circumstances, even though no proof of such circumstances 
 has been made.^^ 
 
 ABOUT. (See MORE OR LESS.) — The word means nearness of 
 time, quality or degree, or making preparations to do a thing, or 
 being actually engaged in doing something. ^^ 
 
 A contract to convey " about sixty-five acres" cannot be per- 
 formed by conveying thirty-six acres. ^^ 
 
 1. Upon the trial of a party for abor- 8. Com. v. Wood, ii Gray (Mass.), 
 lion, evidence to prove a similar offence 85; Dunn v. People, 29 N. Y. 523; Peo- 
 founded upon another and separate pie v. McDowell, 30 ,N. W. Repr. (Mich), 
 transaction is not admissible, but in such 68. 
 
 case the prosecution will be put to its 9. In a prosecution for procuring an 
 
 election. Baker v. People, 105 111. 453- abortion resulting in the death of the 
 
 Evidence that the accused had, before pregnant woman, it is the procurement 
 
 the commission of the alleged abortion, of the miscarriage that constitutes the 
 
 told other persons that she had instru- corpus delicti. Traylor u. State, loi 
 
 •ments wherewith to produce abortion, Ind. 65. 
 
 and offered her services for that purpose 10. State v. Stewart, 52 Iowa, 284. 
 
 at a certain price, is admissible to show 11. Bathrick v. Detroit, etc., Co., 50 
 
 knowledge and intent, and the possession Mich. 62g. 
 
 of necessary means to accomplish the Authorities for Abortion, — Storer and 
 
 act in the chosen way of the accused. Heard on Abortion; Bishop's Crim. Law, , 
 
 People V. Sessions, 26 N. W. Repr. vol. i. §§ 328, 741, 769, vol. ii. §691; 
 
 (Mich.) 291. Wharton's Crim. Law, §§ 182, 316, 323, 
 
 2. Solander v. People. 2 Colo. 48. 390. 430, 592-599, 1364, 183 1. 
 
 See People v. Vedder, 98 N. Y. 630; 1.. 12. Hockspringer v. Ballenburg, 16 
 
 c, 34 Hun (N. Y.), 280. Ohio, 304. 
 
 3. Carter z/. State, 2 Ind. 617. 13. Baltimore, etc.. Society j/. Smith, 54 
 
 4. Hays w. State, 40 Md. 633. Md. 187. The court said: "The force 
 
 5. Weed v. People, i Thomp. & C. of the qualifying word, we think, is sim- 
 (N. Y.) 50. ply that while the parties do not bind 
 
 6. Com."!'. Wood, 11 Gray (Mass.), themselves to the precise quantity of 
 85. sixty-five acres, it imports that the actual 
 
 7. Com. V. Brown, 14 Gray (Mass.), quantity is a near, approximation to that 
 419. mentioned ; that is to say, within <i 
 
 32 
 
In Ueichandise. 
 
 ABOUT. 
 
 Quantity of Goods. 
 
 A contract which called for the delivery of " about five hun- 
 dred tons nitrate of soda" was construed to be a contract for the 
 sale of five hundred tons, with such exception by the word 
 ■" about " as the variance usually found to exist in such cases, 
 arising from some little difference in the mode of weighing, and 
 that it was not performed by delivering four hundred tons.* 
 
 Where an entry calls for land on a certain creek " about seven 
 miles" from its mouth, the word " about " must be rejected and 
 the distance taken in a straight line.^ 
 
 fraction of an acre, or perhaps it might 
 ■cover a. discrepancy of one or two acres." 
 
 In Stevens v. McKnight, 40 Ohio St. 
 341, the court said: "If in a contract 
 in writing to sell land the tract is de- 
 scribed as containing ' 'about one hundred 
 and forty acres," the import of the quali- 
 fying word "about" is simply that the 
 actual quantity is a near approximation 
 to that mentioned. When there is found 
 to be a material and valuable variation, a 
 court of equity upon a petition for spe- 
 cific performance will give the word its 
 proper effect. 
 
 A description of a piece of land as con- 
 taining "a^o»< seven acres" and bounded 
 by a canal was held to include the centre 
 of the canal. Without that there would 
 ■only have been about six acres. Good- 
 year V. Shanahan, 43 Conn. 204. 
 
 The description of the quantity of land, 
 though corresponding in the number of 
 acres with that stated in a former convey- 
 ance, and especially when accompanied 
 with the qualifying words "more or 
 less" or "about" so many acres, furnishes 
 •very strong evidence of the purpose of the 
 grantor to restrict the limits of the prem- 
 ises to those which were conveyed in such 
 former deed. Wheeler v. Randall, 6 
 Mete. (Mass.) 529. 
 
 As to length of a line in deed see Cutts 
 v. King, 5 Me. 482; Purinton v. Sedg- 
 ley, 4 Me. 285. 
 
 1. In Bourne v. Seymour, 16 C. B. 336. 
 
 Quantity of Goods. — The plaintiffs hav- 
 ing been informed by S. , a commission 
 agent, that the defendants had a quantity 
 of old iron in their yard for sale, "' about 
 150 tons," wrote to the defendants, " We 
 •are buyers of good wrought scrap-iron 
 ifree of light and burnt iron, for our 
 American house, and understand from S. 
 that you have for sale about 150 tons. 
 We can offer you ids. per ton." There 
 were three intermediate letters relating 
 to the place of delivery and expense of 
 ■carting, and then the defendants wrote, 
 " We accept your offers for old iron, viz., 
 80J. per ton, we delivering alongside ves- 
 sel in one of the London docks. Please 
 •let us know when you can send a man 
 I C. of L, —3 3: 
 
 here to see it weighed, and also inform 
 us where to send it." Before S. saw the 
 plaintiffs he had seen in the yard of the 
 defendants, who were builders, a heap 
 of iron, and said, "You seem to have 
 about 150 tons there." The reply was, 
 "Yes, or more." The defendants only 
 delivered 44 tons, that being the quantity 
 of the heap in the yard. The plaintiffs 
 recovered 50/. damages in an action for 
 short delivery. Held, that the words 
 " about 150 tons" were merely words of 
 estimate and expectation, and there was 
 no warranty as to quantity, and there- 
 fore the defendants were not bound to 
 deliver 150 tons; that the subject-matter 
 of the contract was not 150 tons of iron, 
 but the iron which S. had seen in the de- 
 fendants' yard. McLay v. Perry, 44 L. 
 T., N. S. 152. 
 
 The plaintiffs agreed to purchase of 
 the defendants " about 300 quarters, 
 more or less," of rye. The ship brought 
 350 quarters, and the defendants refused 
 to deliver any part unless they would ac- 
 cept the whole. Held, that by the words 
 " about" and " more or less " the parties 
 could not be taken to have contemplated 
 so large an excess as 50 over 300 quar- 
 ters. Cross V. Eglin, 2 B. & Ad. 106. 
 See Brawley v. U. S., 6 Otto (U. S.), 168. 
 
 Where a grantee of land contracts to 
 pay as part consideration therefor a 
 claim of another against the grantor 
 "for about one hundred and fifty dol- 
 lars," he must pay the amount due, 
 though it be fifty dollars more. Turner 
 V. Whidden, 22 Me. 121. 
 
 Where there was a refusal of an order 
 for "about 52 tons" of hemp, on the 
 ground that it was so expressed, hel'd, 
 that parol evidence was admissible to 
 show that it was the custom for ware- 
 housemen in describing the quantity to 
 insert in the delivery order as above the 
 word "about," and, when coupled with 
 evidence that the weight was as ex- 
 pressed, there was a sufficient perform- 
 ance of a contract to deliver. Moore 
 V. Caihpbell, 10 Ex. 323. 
 
 2. Sanders v. Morrison. 2 T. B. Mon. 
 (Ky.) 109; B. <_., 15 Am. Dec. 140. See 
 
In Shipping Contract. 
 
 ABO UT— ABSCOND. 
 
 Oefinitioiii. 
 
 The words " about to sail from Benizaf with cargo for Philadel- 
 phia," contained in a charter-party, mean, about ready to sail;^ 
 therefore a vessel not more than three elevenths loaded, and the 
 time of finishing subject to all the contingencies of wind, weather,, 
 labor, and boats, incident to an open roadstead on the northern 
 coast of Africa, was not " about to sail " within the meaning of 
 the charter-party.^ 
 
 ABROAD. See Beyond the Seas. 
 
 ABSCOND. (See ABSCONDING DEBTOR.)— If a person depart 
 from his usual residence, or remain absent therefrom, or conceal 
 himself in his house, so that he cannot be served with process, with 
 intent unlawfully to delay or defraud his creditors, he is an ab- 
 sconding debtor. But if he depart from the State or from his 
 usual abode with the intention of again returning, and without any 
 fraudulent design, he has not absconded, nor absented himself 
 within the intendment of the law.* 
 
 Johnson v. Pannel, 2 Wheat. (U. S.)2o6; 
 Shipp V. Miller, 2 Wheat. (U. S.) 316. 
 Compare Bodley v. Taylor, 5 Cranch 
 (U. S.), 191. 
 
 1. Von Lingen u. Davidson, 4 Fed. 
 Repr. 346. 
 
 In Shipping Contract. — The plaintiffs 
 by written contract sold to defendants a 
 quantity of linseed-oil "to arrive per 
 ship Marcia from London, sailed on or 
 about the 15th of March ult." Held, that 
 the statement in the contract as to the 
 time of sailing was a mere representation 
 and not a warranty, and, being made 
 without fraud, that the defendants were 
 bound to accept and pay for the oil, al- 
 though the vessel did not sail until the 
 26th of March. Hawes v. Lawrence, 4 
 N. Y. 345. 
 
 A charter-party provided that a ship 
 should load a full and complete cargo of 
 iron ore. not exceeding what she could 
 reasonably stow, "say about iioo 
 tons." The charterer provided 1080 
 tons, the actual capacity of the ship be- 
 ing 1210 tons. The ship-owner sued 
 the charterer for not loading a fuU cargo. 
 The court had power to draw inferences 
 of facts. Held, that the words ' ' say 
 about IIOO tons" were words of con- 
 tract and not of mere expectation; that 
 the ship-owner agreed to accept a cargo 
 of about 1 1 50 tons; and that three per 
 cent was a fair percentage of difference 
 to allow I so that the charterer should 
 have furnished three per cent above 
 HOC tons, or 1133 tons, and that conse- 
 quently the charterer was 58 tons short, 
 for which the ship-owner was entitled to 
 net freight. Morris v. Levison, L. R. i 
 -C P. 155. 
 
 In an agreement to sell "a cargo of 
 old railroad iron, to be shipped per 
 bark Charles William, at thirty dollars 
 per ton, delivered on the wharf at the 
 port of discharge, dangers of the seas ex- 
 cepted — about yx) or 350 tons," the fig- 
 ures "about 300 or 350 tons" are un- 
 doubtedly to be taken as part of the con- 
 tract; but taken with the context, they 
 manifestly express an estimate only, and 
 do not control the descriptive clause 
 designating and limiting the subject of 
 the contract. Held, that the delivery at 
 port of discharge of as much as a vessel 
 seaworthy and in good order could carry, 
 though only 227 tons, was a compliance. 
 Pembroke Iron Co. v. Parsons, 5 Gray 
 (Mass.), 589. 
 
 2, Where a debtor departs from one 
 town and goes to another in the same 
 State, where he works openly for over 
 three months, he does not abscond, though 
 his whereabouts was unknown to his 
 friends in the first-mentioned town. The 
 question of withdrawal with a view to 
 elude process is one for the jury. Fitch 
 V. Waite, 5 Conn. 117. 
 
 Where the statute provides for a debtor 
 "absconding," an attachment stating 
 that he is about to abscond does not al- 
 lege sufficient cause for the issuance qf 
 the writ. To abscond in a legal sense 
 means to hide, conceal, or absent one's 
 self clandestinely, with the intent to 
 avoid legal process. Bennett v. Avant, 
 2 Sneed (Tehn.), 152. 
 
 An affidavit stating a debtor " about to 
 abscond himself and his property out of 
 the State privately, so that process cannot 
 be served," is equivalent to the assertion 
 that he is about to remove himself and 
 
 34 
 
Definition, 
 
 ABSENCE. 
 
 Definition. 
 
 ABSCONDING DEBTOR. See Attachment; Bills and Notes. 
 
 ABSENCE— ABSENT— PRESUMPTION OF LIFE, DEATH, AND 
 SURVIVORSHIP. See Beyond the Seas; Domicile; Limita- 
 tions. 
 
 1. Definition. 
 
 2. Statute of 'Limitations. 
 
 3. Presumption of Death. 
 
 4. Presumption of Continuanee of Life. 
 
 5. Hearing of Inquiries. 
 
 6. Survivorship. 
 
 1. Definition. — By absence is sometimes meant that a person is 
 not at the place of his domicile; yet his place of residence being 
 known, or news or information having been received from him, his 
 existence is not uncertain. But in a more confined and more tech- 
 nical sense absence signifies that the residence of the person who 
 is not at the place of his domicile is unknown, and that for thia 
 reason his existence is doubtful.^ 
 
 property out of the State privately, and 
 therefore complies substantially with a 
 statutory oath that defendant is about to 
 remove himself from the State, so that 
 the ordinary process of law cannot be 
 served upon him. Ware v. Todd, i Ala. 
 199. 
 
 The Kansas Statute of Limitations pro- 
 vides: " If, when a cause of action ac- 
 crues against a person, he be out of the 
 State or has absconded or concealed him- 
 self, the period limited for the commence- 
 ment of the action shall not begin to run 
 until be comes into the State, or while he 
 is so absconded or concealed." Held, 
 that absconding and concealing so used 
 refer to the acts of the party in the State. 
 Secretly leaving another State is not ab- 
 sconding or concealing from the reach of 
 process here. Hoggett v. Emerson, 8 
 Kans. 262. 
 
 A certificate of a magistrate that a 
 debtor is not about to abscond or has 
 money, etc., does not meet an affidavit 
 of a creditor alleging that he had money 
 secreted and was about to remove out of 
 the State. In re Proctor, 27 Vt. 118. 
 
 A debtor shut up from his creditors in 
 his own house is an absconding debtor. 
 Ives V. Curtis, 2 Root (Conn.), 133. 
 
 A publicly going or moving out of the 
 State is not an absconding. Boardman 
 V. Bickford, 2 Alk. (Vt.) 345. 
 
 A party may abscond and subject 
 himself to the operation of the attach- 
 ment laws against absconding debtors, 
 and still not depart from the limits of the 
 State. A party may not be a citizen for 
 political purposes, and yet be a citizen 
 for commercial or business purposes, and 
 
 liable to attachment. Field v. Adreon, 
 7 Md. 209. 
 
 ' ' The fact of converting a large amount 
 of goods into money by auction sales, and 
 at a large sacrifice, and in a clandestine 
 manner furnished a reasonable presump- 
 tion that [the debtor] intended to ab- 
 scond or absent himself, so as to avoid 
 the service upon him of the ordinary 
 process of the law," and evidence of such 
 acts should be admitted. Ross v. Clark, 
 32 Mo. 296. 
 
 1. Bouvier's Inst. § 234. 
 
 "Absence" is equivalent to non-ap- 
 pearance. Strine v. Kaufman, 12 Neb. 
 
 423- 
 
 One who is dead is not "absent." 
 Rockland -ih Merrill, 71 Me. 452. See 
 Redfern v. Rumney, I Cranch. C. C. 300. 
 
 An absent debtor is one absent from 
 his dwelling, residence, and place of 
 abode, out of the country, so that the or- 
 dinary process of the court cannot be 
 served upon him. Den 'u. Wharton, i 
 Yerg. (Tenn.) 124. 
 
 A man may be a citizen of Kentucky 
 and yet a non-resident, and he may be a 
 resident and yet an absent defendant. 
 Curd V. Letcher, 3 J. J. Marsh. (Ky.)443. 
 
 An officer- of the army ordered home 
 to await orders is not absent from duty 
 with leave so as to fall within the act 
 placing officers absent from duty with 
 leave on half-pay. United States v. Wil- 
 liamson, 23 Wallace, 411. 
 
 Absence means non-appearance in ii 
 suit, not absence without knowledge or 
 notice ; and a petition for reversal of a 
 decree of judicial separation under 20 
 and 21 Vict. c. 85, sec. 23, on the ground 
 35 
 
Absenoe of Qovemor, 
 
 ABSENCE. 
 
 Statute of Limitations, 
 
 2. Statute of Limitations. — In most of the States the statute con- 
 tains a provision that if at the time a cause of action accrues 
 against a person he shall be absent from the State, the action may- 
 be commenced within the time limited after he comes into the 
 State ; and that if after a right of action has accrued against a 
 person he shall be absent from and reside out of the State, the 
 time of his absence shall not be taken as any part of the time 
 limited for the commencement of the action. Under this provi- 
 sion it is an important question whether a mere temporary 
 absence of the defendant when the rightof action accrued, as for 
 a day or a week, constitutes such an absence as prevents the statute 
 from attaching in his favor; and it may be said that even in such 
 a case the statute does not begin to run until his return to the 
 State, unless the circumstances existijig during the period of such 
 temporary absence were such that the service of legal process 
 against him could have been made so that the plaintiff could 
 bbtain a judgment against him personally. The evident purpose 
 and intention of this clause of the statute is to insure to a plain- 
 tiff the full statutory period within which to commence his action 
 against a defendant ; and if he is temporarily absent from the 
 State when the right of action accrues, so that process cannot at 
 
 that it was obtained in petitioner's "ab- 
 sence" is good on demurrer, though alleg- 
 ing personal service of the citation in the 
 separation suit. Phillips v. Phillips, L. 
 R. I P. & D. 169. 
 
 A provision in a Mississippi statute 
 provides that in a suit against an absent 
 defendant publication may be made on 
 satisfactory proof that such defendant is 
 out of the State, or that upon inquiry at 
 his usual place of abode he could not be 
 found. Held, that " absent" refers only 
 to defendants temporarily out of the 
 State. Wast v. Heard, 27 Miss. 400. 
 
 When the presence of the defendant is 
 not secured either in fact by his appear- 
 ance or constructively by the service 
 upon him of the summons to appear, a 
 judgment obtained upon his involuntary 
 default is in legal intendment, rendered 
 in his absence. James v. Townsend, 
 104 Mass. 367. 
 
 The general statutes of Massachusetts 
 provide for the granting of a review upon 
 petition, " provided that if the judgment 
 complained of was rendered in the ab- 
 sence of petitioner and without his knowl- 
 edge," the petition should be filed within 
 one year of notice, etc. Held, that " ab- 
 sence" did not mean out of the State only, 
 but was intended to apply to all cases of 
 default, without service of process, in the 
 several cases mentioned in the statute. 
 James v. Townsend. 104 Mass. 367. 
 
 Intentional absence without leave from 
 
 36 
 
 military service does not constitute a de- 
 sertion ; there must accompany it an 
 intent not to return. Hanson v. South 
 Scituate, 115 Mass. 336. 
 
 One who by reason of being an officer 
 or private in the United States army is 
 absent from the State is within a statute 
 of limitations providing for absence on 
 public business. Gregg v., Matlock, 31 
 Ind. 373.- 
 
 Absenoe of Judge. — Where a statute 
 provided that in case of the absence of 
 the county judge the county clerk should 
 fill his place, it was held that the judge, 
 though absent from the county seat, had 
 sufficient power to execute and issue 
 bonds advancing county interests and do 
 certain ministerial acts and buy a seal, be- 
 ing authorized by the code to procure one. 
 Lynde v. The County, 16 Wall. (U. S.) 6; 
 
 Absence of Governor. — The constitution 
 of Louisiana provides that in case of 
 ' ' absence from the State" of the governor, 
 the powers and duties of his office shall 
 devolve upon the lieutenant-governor. 
 Held, not to refer to mere temporary 
 absence ; and the fact that the governor 
 was at a place out of the State, but with- 
 in a few hours' ride of the capital, for a 
 period of twenty-one days, did not au- 
 thorize the lieutenant-governor to exer- 
 cise the functions of governor. State v. 
 Graham. 26 La. Ann. 568; s. c, 21 Am. 
 Rep. 551. See People v. Parker, 3 Neb. 
 409; s. c, 19 Am, Rep. 634. 
 
Fresnmption of Death. 
 
 ABSENCE. 
 
 FresTunption of Deatli, 
 
 that time be served upon him, so that the plaintiff cannot obtain 
 a personal judgment against him, the saving clearly applies in 
 favor of the plaintiff.^ 
 
 3. PresTimption of Death. — The absence of a person for a long 
 time, no word being received of him, is presumptive of his death. 
 The usual limit of time by statute is seven years ; but where a per- 
 son is known to have been alive, it is presumed that he is still 
 alive until his death is proved, or his death is presumed, by rule 
 of law, to have occurred.'-* 
 
 1, Wood on Lim. §§ 244, 245. 
 
 2. The rule of law is that upon a per- 
 son's leaving his usual home and place 
 of residence, for temporary purposes, 
 and not being heard of, or known to be 
 living, for the term of seven years, the 
 presumption is that he is not alive. It 
 must appear that he has not been heard 
 of by those persons who would naturally 
 have heard from him during the time 
 had he been alive. The rule, however, 
 does not confine the intelligence to any 
 particular class of persons. It may be 
 to persons in or out of the family. The 
 mere failure to hear from an absent per- 
 son for seven years who was known to 
 have had a fixed place of residence 
 abroad would not be sufficient to raise 
 the presumption of his death, unless due 
 inquiry had been made at such place 
 without getting tidings of him. Went- 
 worth V. Wentworth, 71 Me. 72 ; White 
 V. Mann, 26 Me. 361; Stevens w.-McNa- 
 mara, 36 Me. 178; s. c, 58 Am. Dec. 740; 
 Kidder v. Blaisdell, 45 Me. 467; Stinch- 
 field V. Emerson, 52 Me.. 465; Smiths. 
 Knowlton, n N. H. 196; Brown v. Jew- 
 ett, 18 N. H. 230; Winship v. Connor, 
 42 N. H. 341; Forsaithe v. Clarke. 21 
 N. H. 424; Newman v. Jenkins, 10 Pick. 
 (Mass.) 515; Loring v. Steineman, i 
 Mete. (Mass.) 210; Flynn v. Coffee, 12 
 Allen (Mass.), 133; Bowditch v. Jordan, 
 151 Mass. 321; Eagle w. Emmet, 4 Bradf. 
 Sur. (N. Y.) 117; McCartee v. Camel, i 
 Barb. Ch. (N. Y.) 455; Clarke v. Cum- 
 mins. 5 Barb. (N. Y.) 339; Sheldon v. 
 Ferris, 45 Barb. (N. Y.) 124; King v Pad- 
 dock, 18 Johns. (N. Y.) 141; Hoyt v. 
 Newbold, 45 N. J. L. 2ig; s. c, 46 Am. 
 Rep. 757; Wambrough v. Schenck. 2 
 N. J. L. 229; Smith V. Smith. 5 N. J. Eq. 
 484; Holmes v. Johnson, 42 Pa. St. 159; 
 Innis V. Canipbell, i Rawle (Pa.), 375; 
 Bradley z*. Bradley, 4 Whart. (Pa.) 173; 
 Burr V. Sim, 4 Whart. (Pa.) 450; s. c, 33 
 Am. Dec. 50; Miller v. Beates. 3 S. & R. 
 (Pa.) 490; s. c, 8 Am. Dec. 658; Tilly v. 
 Tilly, 2 Bland. Ch. (Md.) 444; Foulks v. 
 Rhea, 7 Bush (Ky.), 568; Ashbury v. 
 Saunders, 8 Cal. 62; Crawford v. Elliott, 
 
 37 
 
 1 Houst. (Del.) 465; Prim v. Stewart, 7 
 Tex. 178; Jamison v. Smith, 35 La Ann. 
 609; Adams v. Jones, 39 Ga. 508; Cofer 
 V. Thurmond, i Ga. 538; Doe v. Flana- 
 gan, I Ga. 538; Spears v. Burton, 31 
 Miss. 547; Craig v. Craig, i Bailey Eq. 
 (S. Car.) 102; Proctor v. McCall. 2 Bailey 
 (S. Car.) 298; s. c, 23 Am. Dec. 135; 
 Godfrey v. Schmidt, i Cheve(S. Car.), 57; 
 Woods V. Woods. 2 Bay. (S. Car.) 476; 
 North Carolina University v. Harrison, 
 90 N. Car. 385; McNair v. Ragland, i 
 Dev. Eq. (N. Car.) 533; Anonymous, 2 
 Hayw. (N. Car.) 134; Bowden v. Evans, 
 
 2 Hayw. (N. Car.) 222; Puckett v. State, i 
 Sneed (Tenn.), 356; Shown v. Mackin, 9 
 Lea(Tenn.), 601; s. c. 42 Am. Rep. 680; 
 Dickens v. Miller, 12 Mo. App. 408; Han- 
 cock V. American Life Ins. Co., 62 
 Mo. 26; Thomas v. Thomas, 16 Neb. 
 553; Ryan v. Tudor, 31 Kan. 366; Ros- 
 enthal V. Maybugh, 33 Ohio St. 155; Rice 
 V. Lumley. 10 Ohio St. 596; Youngs v. 
 Heffner, 36 Ohio St. 232; Davie w. Briggs, 
 7 Otto (U.S.), 628; Moffett V. Varden, 5 
 Cranch C. C. 658; In re Hall, i Wall. jr. 
 (U.S.) 85; Doe w. Jesson, 6 East. 80; Doe 
 V. Deakin, 4 Barn. & Aid. 433; Doe v. 
 Andrews, 15 Ad. & Ell. (N. S.)76o; Rust 
 V. Baker, 8 Sim. 443; Ommaney v. Still- 
 well. 23 Beav. 328. 
 
 Absence of a person alone does not 
 raise a presumption of his death; but 
 such absence, in connection with sur- 
 rounding circumstances, such as the fail- 
 ure by his family and friends to learn of 
 his whereabouts, his character, and busi- 
 ness relations, together with the fact that 
 he was last known to be seen near the 
 place where a murder is supposed to 
 Wave been committed, and the reputation 
 in his family and with his friends that he 
 is dead, creates a very strong presump- 
 tion of death, the law being satisfied with 
 less than certainty, yet requiring a pre- 
 ponderance of proof. On the other 
 hand, evidence to overcome the pre- 
 sumption of death, that the party sup- 
 posed to be dead was in a'financial con- 
 dition which might have induced him to 
 abscond, nr 'hat he was a speculator, or 
 
Karriage, 
 
 ABSENCE. 
 
 Presumption of Innocence- 
 
 The rule now is general that a person shown not to have been 
 heard of for seven years by those (if any) who, if he had been. 
 
 visionary, in his business or trades, is all 
 proper evidence to be considered by the 
 jury in establishing the fact. Sensen- 
 defer v. Pacific, etc., Ins. Co., 19 Fed. 
 Repr. 68. 
 
 There being no statute providing that, 
 after an absence of a given time virithout 
 being heard from, administration may be 
 granted of the estate of an absent person, 
 the courts should be cautious in acting 
 upon the presumption of death from 
 lapse of time, and should, as a general 
 rule, require diligent inquiry at the place 
 where the party was last heard from. 
 Shown v. Mackin, 9 Lea (Tenn.), 601. 
 
 In Montgomery v. Bevans, i Savvy. 
 (U. S.) 666, Field, J., after examining the 
 English cases, said: " But the law as 
 declared in England is different from the 
 law which obtains in this country, so far 
 as it relates to the presumption of the 
 ■continuance of life. Here, as in Eng- 
 land, the law presumes that a person who 
 has not been heard of for seven years is 
 dead; but here the law, differing 'in this 
 respect from the law of England, pre- 
 sumes that a party once shown to be 
 alive continues alive until his death 
 is proved, or the rule of lav^ applies by 
 which death is presumed to have occur- 
 red — that is, at the end of seven years. 
 And the presumption of life is received in 
 the absence of any countervailing testi- 
 mony as conclusive of the fact, establish- 
 ing it for the purpose of determining the 
 rights of parties as fully as the most pos- 
 itive proof. The only exception to the 
 operation of this presumption is when it 
 Conflicts with the presumption of inno- 
 cence, in which case the latter prevails." 
 The principle last mentioned was ap- 
 proved in People v. Feilen, 58 Cal. 218; 
 s. c, 41 Am. Rep. 258, and is sustained by 
 the English case of R. v. Twyning, 2 B. & 
 Aid. 385. See R. v. Lumley, L. R. i C. 
 C. 196. See Com. ». Jackson. li Bush. 
 (Ky.) 679; Cooper v. Cooper, 86 Ind. 75; 
 Sc^uire v. State, 46 Ind. 458; Williams's 
 Est., 13 Phila. (Pa.) 325; Yates v. Hous- 
 ton, 3 Tex. 433; Lockwood v. White, 18 
 Tex. 102; Hull V. State, 7 Tex. App. 
 S93; Harris v. Harris, 8 111. App. 57; 
 Johnson v. Johnson, 114 111. 611; Spears 
 ■V. Burton, 31 Miss. 547; Blanchard v. 
 Lambert, 43 Iowa, 228; s. cj, 22 Am. 
 Rep. 245. 
 
 Marriage — Fresumption of Innocence. — 
 Although the presumption in favor of 
 the validity of a marriage in fact, and of 
 the innocence of the contracting parties, 
 
 may conflict with that of the continued 
 life of a former husband or wife not 
 heard from for a period less than seven 
 years prior to the second marriage, 
 yet if neither presumption is aided by 
 proof of facts or circumstances co-oper- 
 ating with it, the presumption of the 
 validity of the second marriage must 
 prevail over the other. Johnson v. 
 Johnson, 114 III. 611, 
 
 In a trial for bigamy, the only evi- 
 dence to show the life ""of the first wife 
 was testimony showing that she was 
 alive about three years prior to the 
 second marriage. Held, to be insuffi- 
 cient to sustain a verdict of guilty. Peo- 
 ple V. Feilen, 58 Cal. 218; s. c, 41 Am. 
 Rep. 258, and cases cited supra. Corn- 
 fare Com. V. Thompson, 11 Allen (Mass.), 
 25; Hyde Park v. Canton, 130 Mass. 505. 
 
 It appeared that in 1844 W married A. 
 In 1868 he was convicted of bigamy for 
 marrying B, A being then alive. In 
 1879 he married C, and in 1880, C being 
 then alive, he married D. On a charge 
 of bigamy against this much-married 
 man for marrying D, C being then alive, 
 whereupon he set up the defence that A 
 was alive when he married C, it was held 
 that the question should have been left 
 to the jury whether A was not alive 
 when he married C; as, if so, the mar- 
 riage with C would be invalid. The 
 prisoner had set up a life in 1868, which, 
 said the learned judge, "must be pre- 
 sumed to be continuing in 1879, no evi- 
 dence of any kind being given, but it 
 being shown simply that the woman was 
 
 alive in 1868 The prisoner was 
 
 not bound to do more than to set up the 
 life in 1868, which would be presumed to 
 continue, and it was then for the prose- 
 cution to show by evidence that that pre- 
 sumption was rebutted." R. o. WiUshire, 
 L. R. 10 Q. B. 366. 
 
 The wife of a soldier who went abroad 
 married again in a little over a year, and 
 the question was as to the legitimacy of 
 the children of this second marriage. 
 The court said: "The law presumes the 
 continuance of life for seven years, but 
 it also presumes against the commission 
 of crime. It is contended that the death 
 <ff the husband ought to have been proved, 
 but the answer is that the presumption 
 of law is that he was not alive, when the 
 consequence of his being so is that an- 
 other person has committed a crime." 
 R. V. Twyning, 2 B. & Al. 386. 
 
 In Yates v. Houston, 3 Tex. 449, four 
 S8 
 
Resumption of Innocence. 
 
 ABSENCE. 
 
 FreBomption of Death. 
 
 ■alive, would naturally have heard of him, is presumed to be dead, 
 unless the circumstances of the case are such as to account for 
 his not being heard of without assuming his death. ^ 
 
 years only had elapsed after the disap- 
 pearance of the wife before the husband 
 and another woman appeared as husband 
 ■and wife, under circumstances raising the 
 presumption of marriage; and in consid- 
 ering the subject of the conflicting pre- 
 sumptions the court held that "the 
 rational presumption, after this lapse of 
 time is that the former wife is dead. 
 The ordinary presumption of the contin- 
 uance of human life should not, under the 
 facts in this case, outweigh the presump- 
 tion in favor of the innocence of their 
 cohabitation, and that there was no 
 legal impediment to their contracting the 
 matrimonial relation." 
 
 In Dixon v. The People, i8 Mich. 84, 
 <he prosecution, desiringto use a witness 
 who claimed to be the wife of the defend- 
 ant, produced evidence of her marriage 
 to one Phillips in 1859. Thereupon she 
 •was put on the stand, and admitted her 
 ■marriage with Phillips, and stated that 
 she last heard from him in April, i860, 
 and, supposing he was dead, married the 
 defendant in 1865. The court below per- 
 mitted her to testify, against the objec- 
 tion of the defendant. The Supreme 
 Court of that State, in reviewing the case, 
 said: "The presumption of innocence — 
 that she would not commit the crime of 
 bigamy by marrying the defendant while 
 Phillips was alive — rendered it obliga- 
 tory on the court, in the absence of 
 testimony to the contrary, conclusively 
 -to presume the death of Phillips and the 
 Tralidity of her marriage with defendant." 
 • In Senser v. Bower, i Pa. 450, the 
 court, in determining the validity of the 
 second marriage, say: ' ' But there is said 
 to be the same evidence of a precedent 
 ■marriage of the mother with another man, 
 ■who was ali.ve at her second marriage, 
 and hence a supposed dilemma; but the' 
 proof being equal, the presumption is in 
 •favor of innocence. And so far is this 
 carried in the case of conflicting pre- 
 'sumptions, that the one in favor of 
 innocence shall prevail." 
 
 In Hull V. Rawls, 27 Miss. 471, the 
 •widow of Rawls petitioned for dower, 
 -which was resisted upon the ground that 
 her marriage with Rawls was void, for 
 the reason that he had a wife living at the 
 •date of his marriage with the petitioner. 
 The proof showed that petitioner and 
 Rawls were married December 6, 1848, 
 and that m 1844 Rawls was living with 
 another woman whom he recognized as 
 
 his wife. The court said: " The fact that 
 the deceased (Rawls) was living in 1844 
 with a woman believed to be his wife is 
 no evidence that she was living on the 
 6th of December, 1848. The marriage 
 having been solemnized according to the 
 forms of law, every presumption must be 
 indulged in favor of its validity." 
 
 The case of Chapman v. Cooper, 5 
 Rich. (S. Car.) 452, was where five or six 
 years only had intervened between the 
 time the former husband was last heard 
 from and the second marriage of the 
 wife, and the court held that under the 
 facts of that case (the case having been 
 brought many years afterwards) the pre- 
 sumption of innocence ought to prevail. 
 
 In R. V. Harborne, 2 Ad. & El. 540, 
 the circumstances being that the wife had 
 been seen within twenty-five days of the 
 second marriage of the husband, it was 
 held that the presumption of the contin- 
 uance of life should prevail; whiltf in 
 Greenborough v. Underbill, 12 Vt. 604, 
 (afterwards questioned ' in Northfield v. 
 Plymouth, 20 Id. 582), it was held that 
 after an absence of two years not heard 
 from the presumption of innocence would 
 prevail over the presumption of life. 
 
 1. Clark u. Canfield, 15 N, J. L. Iig; 
 Wambaugh v. Schenck, 2 N. J L. 229; 
 Smith V. Smith, 5 N. J. Eq. 484; Osborn 
 .■V. Allen, 26 N. J. L. 388; Wentworth v. 
 Wentworth, 71 Me. 72; Bowditch v. Jor- 
 dan, 131 Mass. 321; Johnson v. Johnson, 
 114 111. 611"; Jamison v. Smith, 35 La. 
 Ann. 609; Learned v. Corley, 43 Miss. 
 687; Adams z/. Jones, 39 Ga. 479; Foulks 
 w. Rhea, 7 Bush (Ky.), 568; Ross v. 
 Clore, 3 Dana (Ky.), i8g; Lewis v. Mob- 
 ley, 4 Dev. & B. (N. C.) 323; s. c. 34 
 Am. Dec. 379; Davie v.- Briggs, 7 Otto 
 (U.S.), 628; and cases cited in next note. 
 . It must be shown that he left his iisual 
 place of abode (Thomas v. Thomas, 16 
 Neb. 553) or the State (Dickens v. Mid- 
 ler, 12 Mo. App. 408); but the burden of 
 proof is on the party denying the death, 
 and the identity of person must be shown. 
 Hoyt V. Newbold, 45 N. J. L. 219; s. c, 
 46 Am. Rep. 757. 
 
 There is no presumption as to his hav- 
 ing been either dead or alive at any par- 
 ticular period of time during the seven 
 years, but he is presumed to have died 
 at the end of the seven years. Davie v. 
 Briggs. 7 Otto (U.S.), 628; Montgomery 
 V. Bevans, i Sawy.' (U. S.) 653; Moffit v. 
 Varden, 5 Cranch C. C. 658; Stevens v. 
 
 39 
 
Fresmnption of Death. 
 
 ABSENCE. 
 
 Fregmnptioii of Life.. 
 
 4. Presumption of Continuance of Life. — The presumption 
 proof of existence is that the person continued to live.* 
 
 after 
 
 McNamara, 36 Me. 176; s. c, 58 Am; 
 Dec. 740; White v. Mann, 26 Me. 
 361; Rockland v. Morrill, 71 Me. 455. 
 Forsaith v. Clark, 21 N. H. 424; Smith 
 V. Knowlton, 11 N. H. igi; Flynn v. 
 Cofifee, 12 Allen (Mass.), 133; Loring 
 V. Steineman. i Mete. (Mass.) 204; 
 McDowell V. Simpson, i Houst. (Del.) 
 467; Johnson u. Johnson, 114 111. 611; 
 Whiting V. NicoU, 46 111. 230; Spurr v. 
 Trimble, i A. K. Marsh (Ky.), 278; 
 Foulks V. Rhea. 7 Bush (Ky.), 568; Doe 
 V. Flanagan, i Cxa. 538; Smith v. Smith, 
 49 Ala. 156; Primm v. Stewart, 7 Tex. 
 178; Hancock v. Ins. Co , 62 Mo. 26; 
 Lancaster v. Ins. Co., 62 Mo. 121; Ash- 
 bury V. Saunders, 8 Cal. 62; Youngs v. 
 Heffner, 36 Ohio St. 232; Rosenthal v. 
 Mayhugh, 33 Ohio St. 155; Rice v. Lum- 
 ley, 10 Ohio St. 596; Gibbes v. Vincent, 
 II Rich. (S. Car.) 323; King v. Paddock; 
 18 Johns. (N. Y.) 141; Stouvenal v. Ste- 
 phens, 2 Daly (N. Y.). 319; McCartee v. 
 Camel, i Barb. Ch. (N. Y.)456; Spencer 
 z/. Roper, 13 Ired. (N. Car.) 333; State 
 V. Moore, 11 Ired. (N. Car.) 160; s. c, 53 
 Am. Dec. 401; Clarke v. Canfield, 15 N. 
 J. Eq. 119; Hershey v. Shank, 58 Pa. St. 
 385; Homer v. Johnson, 42 Pa. St. 159; 
 Whiteside's App., 23 Pa. St. 114; Burr 
 V. Sim, 4 Whart. (Pa.) 15b; s. c, 33 Am. 
 Dec. 50; Spears v. Burton, 31 Miss. 554; 
 Shown V. McMackin. 9 Lea (Tenn,), 601; 
 s. c, 42 Am. Rep. 680; Tilly z/. Tilly, 2 
 Bland Ch. (Md.) 444; Nepean v. Doe, 2 
 M. & W. gi6; Watson v. King, i Stark. 
 121; Re Phene's Trusts, L. R. 5 Ch. App. 
 139; Re Lewes' Trusts, L. R. 6 Ch. 356, 
 II Eq. 236; Re Green's Settlement. L. R. 
 I Eq. 282; R. V. Lumley, L. R, i C.C.196. 
 See Gill v. Manly, 16 Ir LT. Rep. 57. 
 
 Yet, on the other hand, sometimes -^ 
 person's death may be presumed (or, 
 rather, inferred) to have happened within 
 a period of time even shorter than seven 
 years, if the inference is deduced trom 
 well-authenticated facts of such a nature 
 as almost to preclude the possibility of a 
 mistake. Cox v. Ellsworth, 26 N. W. 
 Repr. (Neb.) 460; Johnson v. Johnson, 
 114 111. 611; Lancaster v. Washington 
 Ins. Co., 62 Mo. 121; Stouvenal v. Ste- 
 phens, 2 Daly (N. Y.), 319; Merritt v. 
 Thompson, i Hilt. (N. Y.) 550; Oppen- 
 heim v. Wolf, 3 Sand. Ch. (N. Y.) 571; 
 Sheldon v. Ferris, 45 Barb. (N. Y.) 124; 
 Gerry v. Post, 13 How. Pr. (N. Y.) 118; 
 State V. Moore, 11 Ired. L. (N. Car.) 160; 
 s. c, 53 Am. Dec. 401 ; Spencer v. Roper, 
 13 Ired. L. (N. Car.) 333; Tisdale v. 
 
 Conn., etc., Ins. Co., 26 Iowa, 170; s.c, 
 28 Iowa. 12; Boyd v. N. Eng., etc., Ins. 
 Co., 34 La. Ann. 848. So. in Davie v.. 
 Briggs, 7 Otto (U. S.), 628, it was laid 
 down that " if it appears in evidence that 
 the absent person, within the seven years, 
 encountered some specific peril, or within 
 that period came within the range of 
 some impending or immediate danger, 
 which might reasonably be expected to 
 destroy life, the court or jury may infer 
 that life ceased befoire the expiration of 
 the seven years." 
 
 In Tisdale v. Conn., etc., Ins. Co., 26. 
 Iowa, 170; s. c, 28 Iowa, 12, it was held 
 that "Evidence of character, habits, do- 
 mestic relations, and the like, making the 
 abandonment of home and family improb- 
 able, and showing a want of all those mo- 
 tives which can be supposed to influence 
 men to such acts.may be sufficient to raise 
 the presumption of death, or from which, 
 the death of one absent and unheard- 
 from may be inferred, without regard to 
 the duration of such absence." See Cox 
 V. Ellsworth", 26 N. W. Repr. (Neb.) 460; 
 Ryan v. Tudor. 3*1 Kans. 366. 
 
 1. A grant of land was made to A in. 
 1846. He disappeared the same year. 
 Held, that it was to be presumed that he 
 was alive in 1871. Montgomery v. 
 Bevans, i Sawy. (U. S.) 660. See Wat- 
 son V. Tindall, 24 Ga. 494; Whiteside's. 
 App., 23 Pa. St. 114; Bradley w. Bradley, 
 4 Whart. (Pa.) 173; Eagle v. Emmet, 4. 
 Brad. Sur. (N. Y.) 117. 
 
 It is shown in 1843 that H, whose dep-^ 
 osition in a case was taken in 1822, was 
 then fifty-nine years old and in bad 
 health. He lived then in New York City. 
 He is not shown to have ever left there, 
 but his address is not now (1843) knowiii 
 at the post-office, nor is it in the city 
 directory. There is no presumption that 
 H is now (1843) dead. Matter of Hall, i 
 Wall., Jr. (U. S.) 85. 
 
 Where a cestui que trust, who takes a 
 vested interest under a settlement, has 
 not been heard of since a period prior to 
 the date of the settlement, the presump- 
 tion is that he was alive at that date. Jn 
 re Corbishley's Trusts, L. R. 14 Ch. 846. 
 In Gill V. Manly, i5 Ir. L. T. Rep. 57, in. 
 reference to the alleged death of a cestui 
 que vie who, if alive, would be only about 
 sixty years of age, it was considered 
 quite within the probabilities of human 
 existence that the person in question 
 might still be alive and well, and that 
 there should be stronger evidence of his. 
 
 40 
 
Hearing of. 
 
 ABSENCE. 
 
 Inquiries, 
 
 5. Hearing of— Inquiries. — The rule that it must appear that the 
 person whose death is in question has not been heard of by those 
 persons who would naturally have heard from him during the 
 time, had he been alive, does not confine the intelligence to any- 
 particular class of persons — it may be to persons in or out of the 
 family ; and the mere failure to hear from an absent person for 
 seven years who was known to have had a fixed place of resi- 
 dence abroad would not be sufficient to raise the presumption of his- 
 death, unless due inquiry had been made at such place without 
 getting tidings of him.* 
 
 death than the mere fact of his absence 
 from the country without being heard of. 
 
 In Ommaney v. Stiliwell, 23 Beav. 328, 
 it was held to have been shown that a 
 person who sailed with Sir John Frank- 
 lin in 1845 was alive in 1850. 
 
 In the Matter of Ackerman, 2 Redf. 
 Sur. (N. Y.), it was held that an incurable 
 sickness in connection with old age may 
 destroy the presumption of continuance 
 of life. 
 
 See, generally, Stinchfield v. Emerson, 
 52 Me. 465; Brown v. Jewett, 18 N. H. 
 230; Com V. Thompson, 11 Allen (Mass.), 
 25 ; McCartee v. Camel, i Barb. Ch. 
 (N. Y.) 463; Keller v. Stuck, 4 Redf. Sur. 
 (N. Y.) 226; McKee v. Copelin, 2 Cent. 
 L. J. (Mo.) 813; Grey v. McDowell. 6 
 Bush (Ky.), 482; Burney v. Ball, 24 Ga. 
 505; Proctor z;. McCall, 2 Bailey (S. Car.), 
 298; s. c, 23 Am. Dec. 135; Martinez v. 
 Vives, 32 La. Ann. 305. CoOT/a« Holmes 
 V. Johnson. 42 Pa. St. 159. 
 
 By the civil law. death is never pre- 
 sumed from absence, for an absentee is 
 presumed to live till the contrary is 
 proved, or until he attains the age of a 
 hundred years. Hayes v. Berwick, 2 
 Martin (La.), 138; s. c, 5 Am. Dec. 727. 
 
 1. Wentworth v Wentworth. 71 Me. 
 72; Bailey v. Bailey, 36 Mich. 185. 
 
 In Norris v. Edwards, 90 N. Car. 382; 
 s. c. , 47 Am. Rep. 526, it was held that 
 declarations of a deceased wife that she 
 had received a letter from her husband 
 long after his departure were competent 
 to rebut presumption of death. 
 
 Where one had gone to sea in 1823 
 and had been heard of in 1832, it will be 
 presumed in 1861 that he is dead. 
 Holmes v. Johnson. 42 Pa. St. 159. 
 
 In Re Rhodes. Frazer v. Renton, 28 
 L. T. (N. S.) 392, it was held that death 
 will not be presumed if it appears that 
 further evidence can be obtained. So, if 
 sufficient inquiries have not been made. 
 In re Creed, \ Drew. 235; Goods of How, 
 I S. & T. 53; Goods of Smyth, 28 L. J. 
 Pro. i; Re Tindall's Trust, 30 Beav. 151. 
 
 And in Gill v. Manly, 16 Ir. L. T. R. 57,. 
 the same principles, in effect, were most 
 properly applied. Accordingly, in equity 
 or probate proceedings, advertisements 
 are directed, though the seven years have 
 expired. Re Allin, 15 W. R. 1164; Re 
 Atkinson, Ste. R. 5 Eq. 219. In Re 
 Webb's Estate, I. R. 5 Eq. 235, it ap- 
 peared that a person emigrated to Aus- 
 tralia, under circumstances showing that 
 he was likely to communicate constantly 
 with his family in Ireland, and having so 
 communicated with them for some time, 
 then ceased to do so, and was not heard 
 of for more than seven years. From his 
 last letter it was probable that, had he 
 lived, he would have continued to write 
 home. Inquiries were made by his fam- 
 ily concerning him, and advertisements 
 published, but with no result. And it 
 was held that there was sufficient /nma 
 facie evidence to establish a title, depend- 
 ing on his death without issue during the 
 lifetime of a person who died after the 
 expiration of the seven years. Com- 
 pare Gill V. Manly, 16 Ir. L. T. R. 57. 
 But the presumption does not arise where 
 it is improbable there would have been 
 any communication with home. Bowden 
 V. Henderson, 2 Sm. & G. 360; Watson 
 V. England, 14 Sim. 28 j and see Re 
 Smith, 31 L. J. P. & M. 182 ; M'Mahon 
 V. M'Elroy, I. R. 5 Eq. i; Re Mlleham, 
 15 Beav. 507. There is no presumption 
 as to the age at which a person died who 
 is shown to have been alive at a given 
 time. See Stephen on Evidence, c. 14, 
 a. 99. And as to death without issue, see 
 Re Webb, I. R. 5 Eq. 235 ; Mullaly v. 
 Walsh, I. R. 6 C. L. 314; Doe d. Ban- 
 ning V. Griffin, 15 East, 293; Re Hanby 
 V. 25 W. R. 427. Or leaving no widow. 
 Re Westbrooke, W. N. 1873, 167. But 
 the age and state of health at the time of 
 disappearance are to be regarded. In re 
 Ackerman, 2 Redf. Sur. (N. Y.) 521; In 
 re Hall, i Wall., Jr. (U. S.)85: Gill v. 
 Manly, 16 Ir. L. T. R. 57; Danby v. 
 Danby, 5 Jur. (N. S.) 54; R. v. Harborne, 
 
 41 
 
Inquiries, 
 
 ABSENCE. 
 
 SuXTiTOTBhip. 
 
 6. Survivorship. — At one time it was said that .where several 
 persons have perished in the same catastrophe, the presumption 
 was in favor of the survival of the stronger person. And again, 
 many cases are to be found seeming to support the position that 
 simultaneous death is to be presumed. But it must now be taken 
 as the law that there is no artificial presumption in cases of this 
 nature, either that any one in particular survived or that all died 
 at the same time ; and it will merely be considered, in the absence 
 of evidence to the contrary, tliat one of them survived, leaving it 
 to be discovered from the evidence who was the individual sur- 
 
 2 A. & E. 544; Re Beasney, L. R. 7 Eq. 
 498. In Gill V. Manly, 16 Ir. L. T. R. 
 57, the departed (not declared deceased) 
 ■would, at the time of controversy, be 
 only about sixty years old. 
 
 The circumstances appearing in the 
 case last mentioned were as follows: In 
 April, 1842, a lease was made for twenty- 
 one years, and during the life of Bryan 
 Gill, then aged twenty-one or twenty- 
 four. In 1856 Bryan Gill went to 
 Steeven's Hospital, Dublin, suffering 
 from an affection in his eyes; and a short 
 time afterwards some members of his 
 family called, but could hear nothing of 
 him. It was deposed that he had left 
 this country in that year ; and it was 
 stated that, when leaving home, before 
 going to the hospital; he had got ^5 from 
 his relatives. It did not appear that he 
 had at any time subsequently asked for 
 any assistance from them; and William 
 Gill, his brother, had not heard from him 
 since, and stated his belief that his other 
 brothers and sisters had not heard from 
 him. But the other brothers and sisters 
 made no affidavit; nor did it appear what * 
 inquiries were instituted to discover his 
 ■whereabouts; and it was sworn by or on 
 behalf of the lessor that a bailiff had been 
 informed that Bryan Gill was a mate on 
 board an American vessel in March, 1875. 
 During Bryan Gill's absence rent hkd 
 been paid by William Gill, and received 
 by the lessor, but not, so far as appeared, 
 ■with knowledge that, as alleged, Bryan 
 Gill was dead. William Gill (whose el- 
 der brother would have been entitled to 
 the land if Bryan Gill was still alive) 
 claimed to be a " present tenant," under 
 a tenancy from year to year, and served 
 an originating notice to fix a judicial rent, 
 under the Land Law Act, 1881, at a time 
 when Bryan Gill, if still alive, would be 
 about sixty years of age. On an appli- 
 cation to the lessor to set aside the origi- 
 nating notice, it was contended that it 
 lay on William Gill to show by evidence 
 that there was sufficie;it ground for deem- 
 ing that Bryan Gill was dead; and that 
 
 it was, also, material for him to establish 
 the time of the death, whether before or 
 after the passing of the act, in order to 
 sustain his position as a "present ten- 
 ant " from year to year within its pro- 
 visions. If the evidence' of the bailiff 
 were to be received, it would appear that 
 Bryan Gill was alive about six years and 
 eleven months previously; it was object- 
 ed that this was only the hearsay of a per- 
 son who had not even made an affidavit; 
 but some degree of reliance seems to 
 have been placed upon it by the court. 
 See O'Kelly v. Felker, 71 Ga. 775. The 
 case of Prudential Assurance Co. v. Ed- 
 munds, L. R. 2 App. Gas., may be re- 
 ferred to, however, where the question, 
 in 1874, was as to the death of Nutt, who 
 had disappeared in 1867, and his sister 
 and brotiier-in-law deposed that they had 
 not hpard of him for seven years, but on 
 cross-examination admitted that a niece 
 of Nutt's had said that in 1872 she saw a 
 man at Melbourne whom she believed to 
 be her uncle (in which the jury thought 
 she might be mistaken), but he was lost 
 in the crowd before she could speak to' 
 him. Kelly, C. B.. declined to tell the 
 jury that Nutt should be presumed dead, 
 as having been absent for seven years 
 without being heard of, but, on the con- 
 trary, charged strongly for the defend- 
 ants on the ground that all the members 
 of the Nutt family had "heard" what 
 the niece had stated. The Court of Ap- 
 peal, however, held this ito be a misdi- 
 rection, and, as the House of Lords could 
 not agree on the subject, their decision 
 stood affirmed. If, then, the bailiff be 
 eliminated from Gill v. Manly, it stands 
 as a case where a man had disappeared 
 for no less than twenty-six years,unheard- 
 of. But, on the other hand, there was 
 the circumstance (which rightly seems 
 to have weighed mainly with the court) 
 that, while it was stated that there were 
 brothers and sisters of Bryan Gill living, 
 they had made no affidavit, nor did it 
 appear what inquiries had been instituted 
 to discover his whereabouts. It was con- 
 
 42 
 
SnryiTorship, 
 
 ABSENCE. 
 
 SuxviyorsMp. 
 
 vivor. The question is one of fact, depending wholly on evidence ; 
 the real or supposed superior strength (as from age or sex) of any 
 of the persons perishing by a common calamity being left merely 
 to carry its natural weight — i.e., as a circumstance proper to be 
 taken into consideration by a judicial -tribunal, but which standing 
 alone is insufficient to shift the burden of proof. The onus pro- 
 bandi is on the person who claims derivatively through a survivor- 
 ship of one out of several, to prove the fact affirmatively; and if 
 the evidence does not establish the survivorship of any one, the 
 law will treat it as a matter incapable of being determined. ^ 
 
 tended that, although there was no pre- 
 sumption of his death at a particular date, 
 yet, if the presumption were that he was 
 dead at the end of- the first seven years, 
 it should be presumed that he was dead 
 before the commencement of the second 
 seven years. But Mr. Commissioner 
 Litton held that sufficient evidence had 
 not been brought forward lo establish 
 the death at all, so as to warrant any 
 presumption. In re Keary's Trusts, ex 
 (arte Walsh, Ch. Div., March 15, 18S2, 
 it appeared that Michael Walsh had gone 
 to New Zealand some twenty years ago, 
 and had not since been heard of ; and, after 
 advertisements had been published here 
 (which had been copied by an Australian 
 paper) by order of the Probate Division 
 without result, letters of administration 
 as of a supposed deceased were granted 
 to Robert Walsh, which are not evidence 
 of the death. See Thompson '7/. Donald- 
 son. 3 Esp. 63; Mut. Ben. Life Ins. Co. 
 V. Tisdale. i Otto (U. S.), 238; Carroll v. 
 Carroll, 60 N. Y. 121. And Sir Edward 
 Sullivan, M. R., refused to order a 
 transfer of the trust funds to the admin- 
 istrator without better proof that the man 
 was dead. The better proof required 
 was, however, afterwards procured by 
 referring back to the evidence adduced 
 in the probate proceedings. But the 
 fact of a tenant for life not having been 
 seen or heard of for fourteen years, by 
 a person residing near the estate, al- 
 though not a member of his family, was 
 helA prima facie evidence of the death of 
 the tenant for life, in Lloyd v. Hunt, 4 
 B. & A. 433; compare Wentworth w. Went- 
 worth. 71 Me. 72. The production of 
 the will of an alleged deceased, and proof 
 by a legatee of having received a bequest 
 under it, coupled with the copy of an 
 entry in the register of burials, has been 
 held ■ sufficient evidence of the death. 
 Doe V. Penfold, 8 C. & P. 536. 'Where 
 a second marriage was contracted on the 
 nth of April, 1831, and it was proved 
 by the father of the former wife that he 
 had received a letter in her handwriting, 
 
 dated Van Diemen's Land, 17th March, 
 1831, it was held, upon the question of 
 the validity of the second marriage, that 
 the letter was admissible, and that the 
 justices or jury would be justified in 
 coming to a conclusion that she was alive 
 at the date of the second marriage. R. v. 
 Harborne, 4 N. & M. 341 ; 2 Ad. & E. 541. 
 
 1. Newell V. Nichols, 75 N. Y. 78. In 
 re Ridgway, 4 Redf. Sur. (N. Y.) 226; 
 Stinde v. Goodrich, 3 Redf. Sur. (N. Y.) 
 87; Russell V. Hallett, 23 Kan. 276; Pell 
 V. Ball, I Cheyes Ch, (S. Car.) 99; Coye v. 
 Leach, 8 Mete. (Mass.) 371; s.c. 41 Am. 
 Dec. 518; Smith v. Croom, 7 Fla. 144; 
 Robinson v. Gallier, 2 Wood (C. C.) 178; 
 2 So. L. R. 594; Broughton v. Randall, 
 Cro. Eliz. 503; R. v. Hay, i W. Bl. 640; 
 4 Burr. 2295 (see 2 Phillim. 261, n)\ Hitch- 
 cock V. Beardsley, West. R. t. Hardw. 
 445; Taylor -v. Diplock, 2 Phillim. 261; 
 Wright V. Netherwood, 2 Phillim. 266; 
 Mason -'. Mason, I Meriv. 308; Colvin 
 V. H. M. Procurator-Gen., i Hagg. N. S. 
 92 ; Goods of Selwyn, 3 Hagg. N. S. 748; 
 Goods of Murray, i Curt. 596; Satter- 
 thwaite v. Powell, i Curt. 705; Sillick v. 
 Booth, I Y. & Col. 117; Durrant v. 
 Friend, 5 De G. & S. 343; Goods of 
 Wainwright, i Sw. & Tr. 257; Goods 
 of Ewart, i Sw. & Tr. 258 ; Goods of . 
 Nichols, L. R. 2 P. & D. 361; Goods of 
 Wheeler, 37 L. J. P. & M. 40; Dowley 
 J'. Winfield, 14 Sim. 277; In re Phene's 
 Trusts, L. R. 6 Ch. 145; Scrutton v. Pat- 
 tillo, L. R. 19 Eq. 369; Underwood v. 
 Wing. 4 De G , M. & G. 633; Wing v. 
 Angrave, 8 H. L. C. 183; Wollaston v. 
 Berkeley, L. R., 2 Ch. Div. 213; Wright 
 V. Samada, 2 Salk. 593; R. v. Heuss, 2 
 Salk. 533: 5 B. & Ad. 91'. See Best 
 on Ev., 6th ed. 527; i Tay. on Ev., 
 7th ed. 209; I. Tay. Med. Jur., 2d. ed.. 
 168; Wharton and Stille's Med. Jur.; 
 Guy's Med. Jur. ; i Beck. Med. Jur. ; I 
 Greenl. Ev. 38 «; 2 Kent's Com. 435. 
 
 Compare Moehring z;.- Mitchell, i Barb. 
 Ch. (N. Y.) 269; McCartee v. Camel, i 
 Barb. Ch. (N. Y.) 455. 
 
 The testatrix and her two grandchil- 
 
 43 
 
ABSENTED— ABSENTEE— ABSOL UTE. 
 
 ABSEHTED. — Where the absence is such that a summons issued 
 upon the day the attachment is sued out will be served upon the 
 defendant in sufficient time before the return day to give the 
 plaintiff all the right which he can have at the return term, the 
 defendant has not so absented himself as that the ordinary process 
 of law cannot be served upon him.^ 
 
 ABSENTEE. — An absentee is a person who has resided in the 
 State and has departed without leaving any one to represent him. 
 It means, also, the person who never was domiciliated in the State 
 and resides abroad.* 
 
 ASSOLTJTE. — It means complete, unconditional, not relative, not 
 limited, independent of anything extraneous. It is used in law to 
 distinguish an estate in fee from an estate in remainder, the rights 
 of man in a state of nature from those pertaining to him in his 
 social relations; as in algebra to designate "any pure number 
 standing without the conjunction of literal characters." * 
 
 dren, together with the father of the chil- 
 dren, were lost in a shipwreck. They 
 were all in the pavilion on deck after the 
 vessel struck. The testatrix was washed 
 out of the pavilion, but it was not shown 
 whether she was carried overboard or to 
 some other part of the deck. The chil- 
 dren, with their father, were seen alive 
 in the pavilion some ten or fifteen min- 
 utes afterwards. Held, that the evidence 
 of the survivorship of the grandchildren 
 was insufficient. In re Ridgway, 4 Redf. 
 Sur. (N. Y.) 226. ■ 
 
 California Kule. — When two persons 
 perish in the same calamity, and it is not 
 shown who died first, and there are no 
 particular circumstances from which it 
 can be inferred, survivorship is presumed 
 from the probabilities resulting from the 
 strength, age, and sex, according to cer- 
 tain rules, one of which is: If both be 
 over 15 and under 60, and the sexes be 
 different, the male is presumed to have 
 survived. Code Civil Proc. § 1963, sub. 
 4, par. 40; Sanders v. Simcich, 65 Cal. 
 50: s. c, 2 Pac. Repr. 741. 
 
 Authorities for Absence. — Greenleaf on 
 Evidence ; Wharton on Evidence ; Best 
 on Evidence ; Lawson on Presumptive 
 Evidence ; Wood on Limitations. 
 
 1. Kingsland v. Worsham, 15 Mo. 657 ; 
 Chariton Co. v. Moberly, 59 Mo. 239. 
 
 The 103d article of war (Rev. St. § 
 1342) bars a trial for an offence committed 
 more than two years before the issuing 
 of the order for trial, "unless by rea- 
 son of the offender absenting himself, 
 or of some other manifest impediment, 
 he shall not have been amenable to jus- 
 tice within that period." Held, that the 
 
 language of this statute must be construed 
 as that of other statutes of limitations, 
 and the absence means absence from 
 jurisdiction of military courts ; that* is, 
 from the United States. In re Davison, 
 4 Fed. Rep. 507. 
 
 8. Morris tj. Bienvenue, 30 La. Ann. 
 Pt. 2, 878. 
 
 3. Johnson's Adm'rs v. Johnson, 32 
 Ala. 637. That is, an absolute interest 
 in property which is so completely vest- 
 ed in the individual that he can by no 
 contingency be deprived of it without his 
 own consent. A policy of insurance 
 contained the clause, " If the interest in 
 the property to be insured is not abso- 
 lute, it must be so represented to the 
 company, and expressed in the policy in 
 writing," etc. The applicant described 
 the property as "his house." It was 
 shown that at the time the legal title was 
 in another ; that insured had a contract 
 for the purchase, had paid part of the 
 purchase-money, and was in possession. 
 The court charged that he was to be re- 
 garded as the owner of the property if 
 he had the equitable title and his interest 
 was such that the loss would fall on him if 
 the property was destroyed. Held, to be 
 correct. Hough j/. Ins. Co., 29 Conn. 10. 
 
 By the words, "The rest and residue 
 of all my property, personal, real, or 
 mixed (after paying all just and lawful 
 demands against my estate). I give and 
 bequeath to my beloved wife," an " abso- 
 lute" inheritable title or an estate'in fee 
 is passed in Massachusetts. Lincoln v. 
 Lincoln, 107 Mass. 590. 
 
 A condition annexed to a devise, that 
 no condition should be made until ten 
 
 44 
 
ABSOL UTE INTEREST— ABSOL UTEL Y— ABSTRACT. 
 
 ABSOLUTE INTEREST.— A policy of insurance provided that " if 
 "the interest in property to be insured be a leasehold interest or 
 -other interest not absolute, it must be so represented and expressed 
 in the policy." Held, that a mortgagor's estate was an absolute in- 
 terest, and that an omission to disclose the mortgage was not a 
 breach of the condition. * 
 
 ABSOLITTE TOTAL LOSS. See Actual Total Loss. 
 
 ABSOLUTELY. — The word absolutely is an appropriate expres- 
 sion for the exclusion of the idea that an estate is either partial or 
 ■<:onditional.* 
 
 ABSTRACT, as applied to records, ordinarily means a mere 
 •brief, and not a copy of that from which it is taken.' 
 
 years after the death of testator's widow, 
 was void as to personal estate, as sus 
 -pending the absolute ownership beyond 
 the period prescribed by the statute. 
 •Converse v. Kellogg, 7 Barb. (N. Y.) 590. 
 
 By the absolute rights of individuals we 
 mean those which are so in their pri- 
 mary and strictest sense, such as would 
 belong to their persons merely in a state 
 •of nature, and which every man is entitled 
 to enjoy out of society or in it. i Black. 
 Com. 123; Peoplez/. Berberrich, 20 Barb. 
 (N. Y.) 224. 
 
 An absolute total loss takes place 
 when the subject insured wholly perishes, 
 or its recovery is rendered irretrievably 
 hopeless,, and is one which entitles the 
 insured to claim the whole amount of his 
 subscription, without giving notice of 
 -abandonment. Burt v. Insurance Co., 9 
 Hun (N. Y.). 383. 
 
 A sale of a minor's property without 
 the prescribed formalities is absolutely 
 null, but may be ratified by the minor 
 -after majority expressly or by implica- 
 tion. Means v. Robinson, 7 Texas, 502 ; 
 'Clay V. Clay's Heirs, 35 Texas, 509. 
 
 The words " absolute purchase of any 
 pew in the church," in statute, held not 
 to mean that the purchaser is to hold free 
 •from all claim or control of the incum- 
 bent or churchwardens, or free from all 
 ■interest of these persons in the general 
 property of the church; but they are used 
 in opposition to the rights of leaseholders 
 of pews and of those who have only 
 sittings ; and, subject to the necessary 
 incidents of such a species of property, 
 a person may not be improperly said to 
 be an absolute purchaser of, and to have 
 a. freehold of inheritance in, the pew 
 which he has bought. Ejectment, how- 
 •ever, is not maintainable. Ridout v. 
 Harris, 17 U. C. C. P, 88. 
 
 1. Washington Ins. Co. v. Kelley, 32 
 Md. 421; see Hough v. City Ins. Co., 29 
 'Conn. 10. 
 
 45 
 
 2. A clause in a will bequeathing prop- 
 erty to testator's daughters and directing 
 the shares to "vest absolutely in them 
 and their respective heirs of their bodies 
 forever" does not create a separate estate 
 in daughter married at the date of the 
 will. Johnson's Adm'rs v. Johnson, 32 
 Ala. 637. 
 
 Trustees of a settlement or will with 
 power of sale are persons "absolutely 
 entitled " to purchase money of land paid 
 into COUP under an act providing for 
 taking land for public improvements and 
 the means for ascertaining the compen- 
 sation therefor. In re Hobson's Trusts, 
 L. R. 7 Ch. Div. 708. 
 
 Where the first section of a statute 
 vested the estate of an assignor in his 
 assignee on the presentation of a petition, 
 etc., the provision in a subsequent sec- 
 tion that it should become "absolutely 
 vested "has no new operation. Sayer v. 
 Dufaur, 11 Q. B. 324. 
 
 The phrase "due absolutely and not 
 on a contingency" is applicable to the 
 past earnings of a party payable m the 
 future on the estimate and certificate of 
 a third person. Ware v. Gowen, 65 Me. 
 534. 
 
 In instructions presented to court that 
 " In order to justify the inference of legal 
 guilt from circumstantial evidence tht 
 existence of inculpatory facts must be 
 absolutely incompatible with the iniio- 
 cence of the accused, and incapable o. 
 explanation on any other reasonable 
 hypothesis than that of his guilt," it was 
 held, that the words " absolutely incom- 
 patible" imply that defendant's guilt 
 must be established beyond the possibility 
 of a doubt, and for that reason it was not 
 error to refuse to give the instruction. 
 State V. Rover, 13 Nev. 17. 
 
 3. Dickinson v. Railroad Co., 7 W. 
 Va. 390. 
 
 A certificate reading " United States 
 Land Office, Springfield, Mo., August 10 
 
Definition. ABSTRACT OFs TITLE. ' Definition. 
 
 ABSTRACT OF TITLE. See Real Estate ; Deeds ; Convey- 
 ancing. 
 
 1. Definition. 8. Judicial Sales. 
 
 2. England and the United States. 9. Execution Sales. 
 
 3. Arrangement of Abstract. 10. Tax Sales. 
 
 4. Patents. n- Dedication to Public Use. 
 
 5. Deeds. 12. Title by Descent. 
 
 6. Powers. 13- Liens and Incumbrances. 
 
 7. Wills. 14- Liability Of Examiners of Title. 
 
 1. Definition. — An abstract of title, or a brief of title, as it is some- 
 times called, is a short methodical summary of the documents and 
 facts which affect the title to a piece of land.^ 
 
 Whenever a contract for the sale of real es'.ite is made, it is im- 
 plied that the seller will before the compltc.on of the contract 
 show a good, marketable title, and until he does so the purchaser 
 is not bound to accept a deed or pay the purchase-money.** The 
 object of the' abstract is to enable the purchaser, or his counsel, to 
 pass more readily on, the sufficiency of the title. 
 
 An abstract should contain whatever concerns the sources of the 
 title and its condition. Not only should the descent and line of 
 the title be clearly traced out, but all incumbrances, all chances of 
 eviction, and adverse claims should be shown. The material parts 
 of all patents, deeds, wills, judicial proceedings, and other records 
 or documents which touch the title, and also liens and incum- 
 brances of every nature, should be set forth. There should also be 
 included those facts usually called matters in pais, such as births, 
 majorities, marriages, descents, and successions, which connect the 
 different parts of the title.* 
 
 2. England and the United States. — In England the vendor of 
 land must furnish the purchaser with an abstract ; and a purchaser 
 not in possession is bound to pay interest on the purchase-money, 
 and may take the rents and profits only from the time when a 
 good title is first shown.* But in the United States the vendor 
 is not strictly bound to furnish an abstract ; his obligation extends 
 only to his ability to give a marketable title.^ 
 
 3. Arrangement of Abstract. — An abstract should have a caption 
 showing the contents and method of arrangement, and, if lengthy 
 
 r868. I certify that the within plat is a may be subject, and of which it is in any 
 
 correct abstract of the records of this way material for purchasers to be ap- 
 
 ofBce. John S. Waddill, Register." Held, prised." Warvelle. Abstracts of Title, 
 
 that the word "abstract" was used in sec. 2. Bankers. Caldwell, 3 Minn. 94. 
 
 the sense of "copy "as required by 2. Shreck v. Pierce, 3 Clark (Iowa), 
 
 statute. Wilhite v. Barr, 67 Mo. 284. 350 ; Espy v. Anderson, 14 Pa. St. 
 
 1. Warvelle defines it as follows : "A 308. 
 
 condensed history of the title to land, 3. See Chase et al. v. Heaney, 70 111. 
 
 consisting of a synopsis or summary of 268. 
 
 the material or operative portion of all 4. Williams Real Prap. 448 ; i Prest. 
 
 the conveyances, of whatever kind or na- Abst. 34; i Chitty Gen. Prac. 298. 
 
 ture, which in any manner affect said 5. Shreck v. Pierce, 3 -Clark (Iowa), 
 
 land, or any estate or interest therein, 350; Espy v. Anderson, 14 Pa. St. 308. 
 
 together with a statement of all liens. But see Faisans ». Moore, 11 La. Ann. 
 
 charges, or liabilities to which the same 741. 
 
 46 
 
Patents-Deeds. ABSTRACT OF TITLE. Powers- Wills-Sales. 
 
 and complicated, an index. Plats and sketches of the premises 
 should be inserted whenever they will assist to a more complete 
 understanding of the situation of the property. 
 
 The following are some of the important points to be observed 
 in abstracting the various documents which are apt to appear in a 
 chain of title: 
 
 4. Patents. — i. The date; 2. Name of person to whom issued; 
 3. Words of heirship ; 4. Recital of payment of purchase-money ; 
 5. Person to whom payment made; 6. Recital of any assignment 
 by certificate-holder ; 7. Description of the land ; 8. Signing, seal- 
 ing, and other formalities ; 9. Volume and page of record. 
 
 5. Deeds. — i. General character of the instrument ; 2. Names and 
 descriptions of the parties (note whether wife or husband joined in 
 the deed); 3. Recitals which affect the title ; 4. The consideration ; 
 5. Receipt of paymcit; 6. The granting clause ; 7. Description of 
 the property; 8. T ., habendum; 9. The reddendum; 10. Con- 
 ditions, limitations, etc.; 11. Covenants for title; 12. Signing, 
 sealing, and witnesses; 13. Acknowledgment ; 14. Registration. 
 
 6. Powers. — Powers which have been exercised or which are to 
 be exercised should be set out verbatim. But such as have 
 been released or extinguished in any way need not be set out in 
 full. 
 
 7. Wills. — It has been said that a will should never be abstracted, 
 but set out at large. There are, however, some things which cer- 
 tainly may be omitted, such as the testator's gratitude to God, his 
 directions aJDOut interment, and small legacies of personal property, 
 etc. But great care should be taken, for it has been held that the 
 power to sell land^may sometimes be implied from the imposition 
 on the executor of duties which cannot be performed except by 
 sale.^ The abstract must of course show the date of the will, the 
 method of its execution and attestation, the death of the testator, 
 and the probate and registration. 
 
 8. Judicial Sales. — These are sales made by order of a court as 
 distinguished from sales made by execution on a writ. The fore- 
 closure of mortgages, judgments in partition, and decrees in pro- 
 bate proceedings are examples of judicial sales. The points to be 
 particularly observed in abstracting are: i. Jurisdiction of the 
 court, iti general, of the subject-matter and of the person (careful at- 
 tention should be given to this point in probate proceedings) ; 2. 
 The bill, complaint, or petition (whether it state a cause of action 
 which would be good on general demurrer) ; 3. The judgment, 
 order, or decree ; 4. The sale (whether all formalities were com- 
 plied with) ; 5. The report of the sale ; 6. Confirmation of the 
 sale ; 7. The deed. 
 
 9. Execution Sales. — i. The judgment (attachment, if any) ; 2. 
 The execution ; 3. Claims of exemption ; 4. Inquisition or ap- 
 praisement (if required by the act) ; 5. Notice of sale; 6. Sale; 7. 
 Redemption ; 8. Confirmation ; 9. The deed. 
 
 1. Skinner v. Wood, 76 N. Car. log. 
 
 47 
 
Tax Sales-Liens, etc. ABSTRACT OF TITLE. LiabihTy. 
 
 10. Tax Sales, — Tax titles are always looked upon with suspicion, 
 and should be carefully investigated. The slightest flaw in the 
 proceedings will invalidate them.^ The points to be chiefly ob- 
 served are : i. The validity of the assessment ; 2. The levy ; 3. Spe- 
 cial assessments (sidewalks, paving, etc.); 4. The collector's war- 
 rant; 5. Return of delinquent list ; 6. Judgment and proceedings ; 
 7. Notice of sale ; 8. The sale ; 9. The transfer or deed (as the 
 statute may require). The records must be searched for some 
 time after the transfer, to see if the conveyance has been im- 
 peached. 
 
 11. Dedication to Public Use. — Dedications may be by deed, but 
 are very often implied from acts, such as selling lots bounded on 
 the highway, long usage, etc. 
 
 12. Title by Descent— The transmission of title on the death 
 intestate of the owner of land is an important point in a chain of 
 title. No rules can be laid down for its investigation, as thb proof 
 of death and of the person who answers to the description of heir 
 varies in each case. Careful search should always be made both 
 for record evidence, and also for matter in pais ; and particular 
 attention should be paid to the state of the law of descent at the 
 
 "time of intestate's death. 
 
 13. Liens and Incumbrances. — These are largely controlled by 
 local laws. In general, the points to be guarded against are : i. 
 Liens in favor of the United States; 2. Debts xlue the State ; 3. 
 ■Official bonds; 4. Taxes; 5. Special assessments; 6. Judgments 
 and executions ; 7. Recognizances ; 8. Attachments ; 9. Lis 
 pendens; 10. Mechanic's liens ; 11. Vendor's liens ; 12. Decedent's 
 debts; 13. Legacies and annuities; 14. Trustee's expenses; 15. 
 Mortgages and deeds of trust ; 16. Leases ; 17. Dower and curtesy ; 
 18. Easements ; 19. Miscellaneous liens. 
 
 14. Liability of Examiners of Title. — Persons who examine titles 
 are liable in damages for want of skill and care. The implied con- 
 tract out of which the action arises is not one of indemnity, but 
 merely an agreement to use care, diligence, and skill.'-* But the ex- 
 aminer is so liable only to the person who employed him. He is 
 not liable to a third party, unless he has made representations to 
 liim, or there is fraud or collusion between himself and his em- 
 
 1. See Braley w. Leaman, 30 Cal. 610; 2. Story, Bailm. § 431; Wharton 
 
 People V. Savings Union. 31 Cal. 132; Neg. 749; Dodd ». Williams, 3 Mo. App. 
 
 •Cahoon w. Coe, 52 N. H. 518. 524; Tierny 278; Rankin v. Shaeffer, 4 Mo. App. 108; 
 
 V. Union Lumbering Co., 47 Wis. 248; Page v. Trutch, 8 Chicago Legal News, 
 
 State ^.a; rel., etc., v. Cook, 82 Mo. 185; 385; Dundee, etc., Co. v. Hughes. 20 
 
 Willey V. Scoville's Lessees, 9 Ohio, 44; Fed. Repr. 39. See Clark v. Marshall, 
 
 Shimmin v. Inman, 26 Me. 228; Smith v. 34 Mo. 429; Chase v. Heaney, 70 111. 
 
 Davis, 30 Cal. 536 ; Huntington v. Can- 268; Chapman v. Chapman, g L. R. Eq. 
 
 tralPac. R. Co., 2Sawy. (U. S.) 503. See, 276; Ireson v. Pearman, 5 Dowl. & R. 
 
 generally, Cooley on Tax. ; Mclnnerny z/. 687; Waine v. Kempster, i F. & F. 
 
 Reed, 23 Iowa, 410; Sibley v. Smith, 2 695. 
 Mich. 486; Brown z/.Veazie, 25 Me. 359. 
 
 48 
 
Abuse of Discretion, 
 
 ABUSE— ABUT. 
 
 What does. 
 
 ployer.^ An action cannot be maintained unless actual damage 
 be shown.* 
 
 ABUSE AND MISUSE. — Abuse, in strictness, signifies to injure, 
 diminish in value, or wear away by using improperly. 
 
 Abuse or misuse of corporate privileges is any positive act in 
 violation of the charter, and in derogation of public right, wilfully 
 done or caused to be done by those appointed to manage the gen- 
 eral concerns of the corporation. ^ 
 
 A malicious abuse of legal process is where the party employs it 
 for some unlawful object, not the purpose which it is intended by 
 the law to effect.* 
 
 The word abuse applied to a woman is never used except with 
 reference to sexual intercourse. The expression "abusing" in ani 
 indictment implies assaulting and something more.^ 
 
 The word as used in a statute punishing carnal knowledge or 
 "abuse" of children applies only to injuries to the genital organs, 
 and does not include ill-usage.* 
 
 ABUT— ABUTTING. (See ADJOINING.)— Premises abut upon a 
 street, road, or other premises where no other street, road, or land 
 intervenes.'' 
 
 1. Houseman v. Girard, etc., 8i Pa. 
 St. 256: Hood V. Fahnestock, 8 Watts 
 (Pa.), 489; Bracken v. Miller, 4 W. & S. 
 (Pa.) no; Savings Bank v. Ward, 100 
 U. S. 195; Dundee, etc., v. Hughes, 20 
 Fed. Repr. 39: Siewers v. Common- 
 wealth. 6 W. N. C. (Phila.) 17. See 
 Donaldson v. Haldane, 7 C. & K. 762; 
 Page V. Trutch, 8 Chicago Legal News' 
 
 385. 
 
 2. Kimball v. Connolly, 42 N. Y. 57. 
 Authorities. — Preston's Abstracts of 
 
 Tiile; Marti ndale's Abstracts of Title; 
 Warvelle's Abstracts of Title; Moore's 
 Abstracts of Title. 
 
 3. Baltimore w. Pittsburg, etc., R. Co., 
 3 Pittsbg. Rep. (Pa.) 20; Erie, etc., R. 
 Co V. Casey, 26 Pa. St. 318. 
 
 4. Mayer v. Walter, 64 Pa. St. 283. 
 Abuse of Discretion, and especially 
 
 gross and palpable abuse of discretion, 
 which are the terms ordinarily employed 
 to justify an interference with the exer- 
 cise of discretionary power, implies not 
 merely error of judgment, but perversity 
 of will, passion, prejudice, partiality, or 
 moral delinquency. The exercise of an 
 honest judgment, however erroneous it 
 may appear to be, is not an abuse of dis- 
 cretion. The People v. The N. Y. C. R. 
 Co., 29 N. Y. 431. 
 
 5. A rule for a habeas corpus directed 
 to two justices before whom the prisoner 
 had been tried for unlawfully assaulting 
 and abusing a woman was dischairged, 
 two judges holding that the justices had 
 jurisdiction, no charge of rape having 
 
 I C. of L.— 4 49 
 
 been made, and the other two holding 
 that, as there was evidence of rape, the 
 word "abuse" in the information suffi- 
 ciently covered the case to take it out of 
 the jurisdiction. In re Thompson, 6 
 Hurl. & N. 192.. 
 
 6. Dawkins v. State, 58 Ala. 376; s. c, 
 29 Am. Rep. 754. 
 
 7. An estate opposite a park, separated 
 from it by a county road, is not an abut- 
 ting estate. Holt v. City Council, 127 
 Mass. 408. A lot cannot be said to front 
 on a public road when a railroad the bed 
 of which is owned by the company runs 
 between the lot and the road. Philadel- 
 phia V. Eastwick, 35 Penna. 75. Decla- 
 ration in trespass as to an acre of land 
 with the abuttals. Verdict, Guilty as to 
 one half. Held, that the plaintiff had not 
 failed in his at)uttals. Winckworth v. 
 Mayo, Cro. Jac. 184. 
 
 Where a small stream intervened be- 
 tween a lane and a lot of land, it was held 
 that the premises adjoined but did not 
 abut the lane by one judge, and by another 
 that thfey were abutting. Wakefield Bd. 
 V. Lee, -I L. R. Ex. Div. 336. 
 
 Under a statute providing for assess- 
 ment of owners of premises for the pur- 
 pose of paving footways, etc.. upon whicii 
 said premises were fronting, adjoining, or 
 abutting, said owners are only respon- 
 sible for the footways on which their re- 
 spective premises abutted ; the north side, 
 for instance, not being responsible for the 
 footways on the south. Wakefield Bd. 
 V. Mander, L. R. 5 C. P. Div. 248. 
 
ABUTMENT— ACCEPT— ACCESS— ACCESSION. 
 
 ABUTMENT. — The abutment, in the sense in which the term is 
 ordinarily used, is part of the bridge. ^ 
 
 ACCEPT — ACCEPTED. — The acceptance must be proved by some 
 clear and unequivocal act of the party to be charged.* 
 
 ACCEPTANCE.* See Bills and Notes. 
 
 ACCESS. (See Bastardy ; Husband and Wife.)— At com- 
 mon law neither the husband nor wife could prove access or non- 
 access. A statute allowing the parties to testify in their own be- 
 half does not change the rule,* unless expressly indicated.* 
 
 ACCESSION— CONFUSION OF GOODS. See ACCRETION; BAIL- 
 MENT; Conversion; Fixtures. 
 
 " I. Definition. 6. Mortgage. 
 
 2. Wrongful Possession. 7. Accounts. 
 
 3. Innocent Possession. 8. Trustees. 
 
 4. Admixture of Property. 9. Real Estate. 
 
 5. Confusion of Property. 
 
 1. Deflnition.^Strictly speaking, accession is where a thing which 
 
 1. Bardwell & Huntingdon v. Town selected by the f>uyer, does hot constitute 
 of Jamaica, 15 Vt. 438. In speaking of such a delivery and acceptance under the 
 abridge in connection with the use for statute of frauds as to pass the title to the 
 which bridges are erected, we can no goods. Rodgers v. Phillips. 40 N. Y. 
 more exclude the abutment than the floor- 519. 
 
 ing or framework of the bridge. Where Where a merchant sold goods to an- 
 
 a declaration alleged an injury to have other upon an arrangement that a third 
 
 been caused by the defects in a bridge, party was to collect the account and pay 
 
 and it was shown that the defects were in over the same, less a commission, and 
 
 r.he abutment, there was not such a vari- such third party was furnished with 
 
 ance as to be ground for reversing the duplicate bills of account, made out in 
 
 ■ judgment. , 'the name of the purchaser, and wrote 
 
 2. The delivery of goods to the place across those retained by the merchant 
 where the purchaser's agent directed, and the word " accepted," signing his name, 
 the shipping by the agent to a port where such third party did not thereby make 
 defendant had given general directions to himself liable as a guarantor. Hatch v. 
 have such goods sent, constitute a suflS- Antrim, 51 111. 106. 
 
 cient acceptance. Snow v. Warner, 10 An affidavit that a person has " ac- 
 
 Metc. (Mass.) 132. cepted'' an office does not sufficiently show 
 
 Where there was a parol contract for a user to comply with the statute. 4 and 5 
 
 the sale of a horse, payment on delivery, W. H. c. 76, s. 50, and a. g no warranto can - 
 
 and the purchaser called and exercised not be granted against him on such affi- 
 
 ■ the horse and gave some directions, but davit. Queen v. Slatter," 11 Ad. & El. 
 before payment or delivery the horse 505. 
 
 • died, held, that the buyer was not liable Accept and Beceive. — The N. Y. Stat- 
 
 for the price. " The word ' accepted ' im- ute of Frauds provides that in certain 
 
 ports not merely that there should be a cases the contract shall be void unless 
 
 delivery by the seller, but that each party "the buyer shall accept and receive 
 
 should do something by which the bargain part of such goods." T^i?/!!/, that a deliv- 
 
 should be bound." Tempest z/. Fitzgerald, ery of goods to a general carrier, in pur- 
 
 ' 3 B. & Aid. 680. suance of the order of a purchaser, to be 
 
 There is no acceptance where a verbal transported to him, is not such an " ac- 
 
 purchase of winter tares was made, to be ceptance and receipt " of the goods as 
 
 paid for on delivery and to be delivered takes the case out of the statute. Rod- 
 
 when called for. Howe v. Palmer, 3 B. gers v. Phillips, 40 N. Y. 519. 
 
 & Aid, 321. 3. Boykin i". Boykin, 70 N, Car. 262; 
 
 Upon a verbal contract of sale of s. c, 16 Am. Rep. 776. See Bastardy 
 
 goods of more than $50 value, a delivery and cases cited. 
 
 of them, in accordance with such contract, 4, Tioga Co. v. South Creek, 75 Pa, 
 
 to a general carrier, not designated or St. 436. 
 
 50 
 
Definition, 
 
 ACCESSION. 
 
 Crops — Animals. 
 
 ■belongs to one person becomes the property, of some one else by 
 .reason of its becoming added to or incorporated with a thing be- 
 jlonging to the latter. This takes place in the case of the addition 
 of buildings, plants, etc., to the soil, the erection of fixtures, and 
 .where two things are so united as to form one, as by the embroid- 
 •ering of cloth, the painting of a picture on canvas, etc.^ 
 
 Blackstone includes under-accession what is more correctly called 
 specificatis, which takes place where a person makes a new thing 
 {species) out of materials belonging to another, and thereby acquires 
 the ownership of them, subject to making compensation to the 
 former owner for their original value ; he also includes under acces- 
 sion the acquisition of young animals born in confinement.* See) 
 also Animals.) 
 
 1. Sweet's Law Diet.; 2 Kent's Com. 
 360. 
 
 2. Black. Com. ii. 404; Betts v. Lee, 
 5 Johns. (N. Y.) 348; s. c, 4 Am. Dec. 
 
 ■368. 
 
 Trees and Plants Fruit-trees growing 
 
 'mpon land become part of the freehold. 
 Adams v. Smith, i 111. 221; see Griffin v. 
 Bixby, 12 N. H. 454. 
 
 ■ A and B were partners in the business 
 of fruit-growing, A furnishing the land 
 and money, and B the labor. By the 
 terms of a submission to arbitration be- 
 tween them to wind up the partnership, 
 A was to be charged with the value of all 
 permanent improvements made by the 
 
 'firm. Held, that he was not chargeable 
 
 'with the increase, by reason of growth 
 during the continuance of the partner- 
 ship, in the value of vines which were 
 
 ■growing on the land when the partner- 
 ship was formed. Squires v. Anderson, 
 
 .54 Mo. 193. 
 
 Crops. — Where a person entered upon 
 the land of another without license, and 
 cut grass therefrom and made the same 
 into hay, held, that he acquired no prop- 
 erty in such hay, and could not maintain 
 an action for its destruction, caused by 
 the negligence of another, while it was 
 
 :staclied upon such land. Murphy v. 
 
 :'Sioux City, etc., R. Co., 55 Iowa, 473; 
 Lindsay v. Winona, etc., R. Co., 29 
 Minn. 411; s. c, 43 Am. Rep. 228. 
 
 Animals. — The increase of anfmals be- 
 longs to the owner of the female. Stewart 
 V. Ball, 30 Mo. 154; -Hanson v. Millett, 
 
 '55 Me. 184; Hazelbacker v. Goodfellow, 
 64 111. 238. See Tynson v. Simpson, 2 
 
 ;Hayw. (N. Car.) 147. 
 
 Where a female, animal has increase, 
 
 lyhile held under a bailment or executory 
 
 'contract, the title remaining in the bailor 
 
 'or vendor until the agreed price is paid, 
 
 the increase is the property of the bailor 
 
 or vendor. Elmore v. Fitzpatrick, 56 
 
 Ala. 400; Allen v. Delano, 55 Me. 113. 
 Putting a mare to pasture, in considera- 
 tion of her services, does not entitle the 
 bailee to the increase. Allen v. Allen, 2 
 Pa. 166. 
 
 Where the female is hired for a time 
 limited and has increase during the term, 
 the hirer will be entitled to it and not the 
 general owner. Putnam v. Wyley, 8 
 Johns. (N. Y.) 432; Concklin v. Havens, 
 12 Johns. (N. Y.) 314; Hanson v. Mil- 
 lett, 55 Me. 184; Stewart v. Ball, 33 Mo. 
 154; Kellogg z;. Lovely, 46 Mich. 131; s. 
 c, 41 Am. Rep. 151. A foal obtained 
 under an agreement by which the owner 
 of the mare arranged with another person 
 that if he would put her to horse and pay 
 the expense he should have the foal, be- 
 came the property of such person. Lit: 
 nendoU v. Terhune, 14 Johns. (N. Y.)2»j 
 
 Where the animal is loaned, its increasf 
 belongs to the owner. Orser v. Stornis. 
 9 Cow. (N. Y.) 687. See infra, p. 59; Ac 
 
 CKETION. 
 
 The offspring of slaves belong to the 
 owner of the mother. Fowler v. Merrill, 
 II How. (U. S.) 3f5. See Concklin v. 
 Havens, 12 Johns. (N. Y.) 314. 
 
 Ice which is formed belongs to the 
 owner of the water. 'Higgins v. Kusterer, 
 41 Mich. 318. 
 
 Dividends. — A dividend earned but not 
 declared belongs to the owner of the 
 stock at the time when the dividend is 
 actually declared. Brundage v. Brun- 
 dage. 65 Barb. (N. Y.) 397; 60 N. Y. 544. 
 
 Sale. — B and others delivered milk to a 
 cheese factory; each was credited with 
 the amount of his milk, and all was man- 
 ufactured together; the company sold all 
 the cheese; each farmer was charged with 
 the expense, and received, his share of 
 the proceeds in proportion to the milk 
 furnished. Held, that B and the others 
 were not partners, nor tenants in com- 
 mon in the cheese, nor was there a bail- 
 51 t 
 
Wrongful Possession, 
 
 ACCESSION. 
 
 Innocent Possession. 
 
 2. Wrongful Possession. — A trespasser who takes the property of 
 another wilfully and without the owner's consent cannot acquire 
 the right to it by accession or specification, though he has changed 
 the species.* 
 
 3. Innocent Possession. — Where the property of one comes to the 
 possession of another innocently, he may acquire the right to'it if 
 by accession the species be changed.* 
 
 4. Admixture, — If the materials of one person are united to the 
 materials belonging to another by the labor of the latter, who fur- 
 nishes the principal materials, the property in the joint product is 
 in the latter by right of accession ;' but the person who furnishes 
 
 ment or agency as to the particular milk 
 delivered. It was a sale of milk to be 
 paid for in a certain time and manner. 
 Butterfield v. Lathrop, 71 Pa. St. 225. 
 
 1. 2 Kent's Com. 364. See the able 
 brief o^ Nicholas Hill, Jr., 3 N. Y. 380 ; 
 Betts V. Lee, 5 Johns. (N. Y.) 348; s. C, 
 4 Am. Dec. 368; Curtis v. Groat, 5 Johns. 
 (N. Y.) 168; s. c, 5 Art. Dec. 204; Hart 
 V. Ten Eyck, 2 Johns. Ch. (N. Y.) 62; 
 Baker w, Wheeler, 8 Wend. (N. Y.) 508; 
 Silsbury v. McCoon, 3 N. Y. 379; Ro'h 
 V. Wells, 2g N. Y. 471 ; s. u., 53 Am. Dcv,. 
 307; Barron v. Cobleigh, 11 N. H. 557; 
 Snyder v. Vaux, 2 Rawle (Pa.), 423; s.c. 
 21 Am. Dec. 466; Willardz*. Rice.ii Mete. 
 {Mass.)493; s.c, 45 Am. Dec. 226; Hes- 
 seltine v. Stockwell, 30 Me. 237;, Riddle 
 V. Driver, 12 Ala. 590; Heard v. James, 
 49 Miss. 236; Lampton v. Preston, i J. J. 
 Marsh (Ky.), 454; s. c, 19 Am. Dec. 104; 
 Davis V. Easley, 13 111. 192; Single v. , 
 Schneider, 30 Wis. 570; Jenkins v. Stean- 
 ka, 19 Wis. 128. ' See Confusion of 
 Goods, infra, p. 54. 
 
 A trespasser who cuts grass growing 
 on land is not, as to the owner of the 
 land, the owner of the hay made from 
 the grass, and lannot recover for its 
 destruction by the negligence of such 
 owner. Lindsay w. Winona, etc., R. Co., 
 29 Minn. 411; s. c, 43 Am. Rep. 228; 
 Murphy v. Sioux City, etc., R. Co., 55 
 Iowa, 473. 
 
 The owner of tirhber trees cut from his 
 land by a trespasser cannot be divested 
 of his title thereto, although the tres- 
 passer has converted them into railroad 
 ties and sold them to a bond-fide pur- 
 chaser. Strubbee v. Trustees, 78 Ky. 
 481; s. c, 39 Am. Rep. 251. 
 
 Crops sowed on land by a stranger to 
 the title, and without authority or con- 
 sent of the owner, belong to the owner 
 of the soil. Freeman v. McLennan, 26 
 Kan. 151; Simpkins v. Rogers, 15 111. 397; 
 Crotty V. Collins, 13 111, 567; Thomes v. 
 Moody, II Me. 139. Compare Lindsay 
 V. Winona, etc., R. Co., 29 Minn. 411; 
 
 52 
 
 s. u., 43 Am. Rep. 228; Brothers v. Hur- 
 dle, 10 Ired. (N. Car.) 490; De Mott v. 
 Hagerman, 8 Cow. (N. Y.) 220. 
 
 2. Silsbury. v. McCoon, 3 N. Y. 378; 
 s. c, 53 Am. Dec. 307; Hyde w. Cookson, 
 21 Barb. (N. Y.) 92; Baker v. Wheeler, 8 
 Wend. (N. Y.) 508; Swift v. Barnum, 23 
 Conn. 523; Snyder -v. Vaux, 2 Rawle 
 (Pa.), 423; s. c, 21 Am. Dec. 466; Worth 
 V. Northam, 4 Ired. (N. Car.) 102; Rid- 
 dle V. Driver, 12 Ala. 590. 
 
 Crop growing on Land held adversely. 
 — An action cannot be maintained to re- 
 cover grain sown and harvested by de- 
 fendant upon lands to which he claimed 
 title, and of which he had the actual ad- 
 verse and exclusive possession. Martin 
 w. Thompson. 62 Cal. 618; s.c, 45 Am. 
 Rep. 663. See Reilly v. Ringland, 39 
 Iowa, 106. Compare Lampton v. Preston, 
 I J. J. Marsh (Ky.), 454. 
 
 3. 2 Kent's Com. 294; 2 Blackstone's 
 Com. 404; Pulcifer v. Page, 32 Me. 404; 
 s. c, 54 Am. Dec. 582; Merritt v. John- 
 son, 7 Johns. (N. Y.) 473; s. c, 5 Am. 
 Dec. 289; Gregory v. Stryker, 2 Denio 
 (N. Y.), 628: Hyde v. Cookson, 21 Barb 
 (N. Y.) 92; McConike v. N. Y., etc, R. 
 Co., 20 N. Y. 495; Stephens v. Santee, 
 49 N. Y. 35; Beers v. St. John, 16 Conn. 
 322; Ryder v. Hathaway, 21 Pick, 
 (Mass.) 305; Stevens v. Briggs, 5 Pick. 
 (Mass.) 177; Wetherbee v. Green, 22 
 Mich. 311; Dunn v. O'Neal, i Sneed 
 (Tenn.), 106; s. c, 60 Am. Dec. 140; 
 Lampton v. Preston, i J. J. Marsh. 
 (Ky.) 454; s. c, 19 Am. Dec. 104. 
 Compare Silsbury w. McCoon, 3 N, Y. 
 379; s. c, 53 Am. Dec. 307; Riddle v. 
 Driver, 12 Ala. 590; Snyder v. Vaux, 2 
 Rawle (Pa.), 423; s. c, 21 Am. Dec. 466. 
 
 Where A contracted with B to build a 
 vessel, and A was to furnish the timber 
 requisite to complete the frame of the 
 vessel, and B was to advance money to 
 A, and also to furnish the materials for 
 the joiner's work; and the vessel, while 
 standing on land hired by A, and in an 
 unfinished state, was seized under &fi fa 
 
Admiztuis^ 
 
 ACCESSION. 
 
 Admiztnre, 
 
 all the goods upon which the labor is expended retains the owner- 
 ship of them and of the article made from them.^ (See Me- 
 chanic's Lien.) 
 
 Where one by mistake in good faith has expended labor upon 
 the property of another, not destroying its identity, nor converting 
 it into something substantially different, nor essentially enhancing 
 its value, he cannot recover compensation therefor from the 
 owner, although the owner has availed himself of the benefit ;'-* but 
 if he has by his labor greatly increased the value of the property, 
 he will become the owner.^ 
 
 A wilful trespasser, however, acquires no property in the goods 
 of another by any change wrought in them by his labor or skill. 
 
 issued against A, and sold by the sheriff 
 lo C, who afterward completed the vessel 
 and sold her to D, — in an action of 
 trover brought by B against D it was 
 held^ that the property in the vessel was 
 in D, and that B could not have any prop- 
 erty in the vessel, under the contract, 
 until she was completed and delivered to 
 him. Merritt v. Johnson, 7 Johns. (N. 
 Y.) 473; s. c, 5 Am. Dec. 28. See An- 
 drews V. Durant, 11 N. Y. 35; People v. 
 Commissioners, 58 N. Y. 242; Abbott v. 
 Blossom, 66 Barb. (N. Y.) 353. 
 
 A railroad company made a contract 
 with a rolling-mill company for the mak- 
 ing at the mill of new rails out of old 
 rails supplied by the railroad, with the 
 addition of new iron, to be supplied by 
 the mill, which was required for the top 
 of the rails. Held, that if the railroad 
 furnished the chief or principal part of the 
 material of the new rail's, the property in 
 the material and in the new rails as fin- 
 ished remained in the railroad. Arnott 
 V. Kansas Pac. R. Co., 19 Kans. 
 
 1. Babcock v. Gill, 10 Johns. (N. Y.) 
 287; Gregory v. Stryker, 2 Denio (N. Y.), 
 628; Hyde v. Cookson, 2i Barb. (N. Y.) 
 92; Eaton ii. Munroe, 52 Me. 63; Eaton 
 V. Lynde, 15 Mass. 242; Stevens v. 
 Briggs, 5 Pick. (Mass.) 177; Foster v. 
 Warner, 49 Mich. 641; Dunn v. O'Neal, 
 I Sneed (Tenn.), 106; s. c, 60 Am. Dec. 
 140. 
 
 A let B have some canvas for a sail, 
 under an agreement that it should be and 
 remain the property of A until paid for. 
 B made the sail,, furnishing fiirther mate- 
 rials for it, and then sold it without hav- 
 ing paid for it. Held, that A could main- 
 tain replevin against the vendee to recover 
 the sail. Eaton v. Munroe, 52 Me. 63. 
 
 An owner of pine lands, in contracting 
 the pine to a shingle manufacturer, re- 
 tained the title thereto until it should be 
 fully paid for, and also reserved the right 
 to seize the shingles manufactured from 
 it if the manufacturer failed to perform 
 
 the conditions of his contract. The man- 
 ufacturer mixed these shingles with 
 others, and, with the knowledge of his 
 vendor's agent, treated them all as his 
 own property and sold them to bona-Jide 
 purchasers. There was evidence tending 
 to show that in buying' the latter relied 
 on this apparently exclusive ownership. 
 Held, that they could maintain trover 
 against the owner of the pine if he seized 
 any shingles sold to them which had not 
 been manufactured from his own timber. 
 Foster v. Warner, 49 Mich. 641. 
 
 2. Isle Royal M. Co. v. Hertin, 37 
 Mich. 332; s. c, 26 Am. Rep. 520. This 
 case was distinguished from Witherbee v. 
 Green, J>ost, in that the identity of the con- 
 verted property was not destroyed, nor 
 its value greatly increased. See Newton 
 21. Porter, 5 Lans. (N. Y.) 416; affirmed, 
 69 N. Y. 133; s. c, 25 Am. Rep. 152; 
 Spicer V. Waters, 65 Barb. (N. Y.) 227. 
 Compaie Sing\e v. Schneider, 30 Wis. 570. 
 
 Where one person supplies the mate- 
 rial, and another the labor under an 
 agreement that he is to be paid for the 
 labor by a certain share of the manufac- 
 tured article, they become tenants in 
 common. White v. Brooks, 43 N. H. 
 402. 
 
 A by mistake and in good faith cut 
 cord-wood on the land of B, and hauled 
 i|t to a landing and piled it, and the owner 
 seized and sold it. Held, that the owner 
 was not liable for the value of such labor. 
 Isle Royal M. Co. v. Hertin, 37 Mich. 
 332;'s. c, 26 Am. Rep. 520. 
 
 3, In Wetherbee z/. Green, 22 Mich. 311; 
 s. c, 7 Am. Rep. 653, Cooley, J., said: 
 "Some of the cases place the right of 
 the former owner to take the thing in its 
 altered condition upon the question 
 whether its identity could be made out 
 by the senses. But this is obviously a 
 very unsatisfactory test, and in nr^any 
 cases would wholly defeat the purpose 
 which the law has in view in recognizing 
 a change of title in any of these cases. 
 
 53 
 
Confusion of Goods. 
 
 accession: 
 
 Confusion of Goods; 
 
 however great the change may be, provided it can be proved that 
 the improved article was made from the Original material. ^ 
 
 5. Confusion of Goods. — If a person without fraud, intentional 
 wrong, or reckless disregard of the right of others mingle his 
 goods with those of another person, in such manner that they 
 
 That purpose is not to establish any 
 arbitrary distinctions, based upon mere 
 physical reasons, but to adjust the re- 
 dress afforded to the one party and the 
 penalty inflicted upon the other, as near 
 as circumstances will permit, to the rules 
 of substantial justice. It may often hap- 
 pen that no difficulty will be experienced 
 in determining the identity of a piece of 
 timber which has been taken and built 
 into a house; but no one disputes that 
 the right of the original owner is gone in 
 such a case. A particular piece of wood 
 might, perhaps, be traced without trouble 
 into a church organ, or other equally 
 valuable article; but no one would de- 
 fend a rule of law which, because the 
 identity could be determined by the 
 senses, would permit the owner of the 
 wood to appropriate a musical instru- 
 ment a hundred or a thousand times the 
 value of his original materials, when the 
 party who, under like circumstances, has 
 doubled the value of another man's corn 
 by converting it into malt is permitted 
 to retain it, and held liable for the orig- 
 inal value only. Such distinctions in the 
 law would be without reason, and could 
 not be tolerated. When the right to the 
 improved article is the point in issue, 
 the question how much the property or 
 labor of each has contributed to make it 
 what it is must always be one. of first 
 importance. The owner of a beam built 
 into the house of another loses his prop- 
 erty in it, because the beam is insignifi- 
 cant in value or importance as compared 
 to that to which it has become attached, 
 and the musical instrument belongs to the 
 maker rather than to the man whose 
 timber was used in making it, not because 
 the timber cannot be identified, but be- 
 cause in bringing it to its present condi- 
 tion the value of the labor has swallowed 
 up and tendered insignificant the value 
 of the original materials. The labor in 
 the case of the musical instrument is 
 just as much the principal thing as the 
 house is in the other case instanced; the 
 timber appropriated is in each case com- 
 paratively unimportant. No tesi which 
 satisfies the reason of the law can be 
 applied in the adjustment of questions of 
 title to chattels by accession, unless it 
 keeps in view the circumstances of rel.i- 
 tive values. When we bear in mind the 
 fact that whai. the law aims at is the ac 
 
 complishment of substantial equity, we 
 shall readily perceive that the fact of th^ 
 value of the materials having been in- 
 creased a hundredfold is of more im'- 
 portance in the adjustment than any 
 chemical change or mechanical transfor- 
 mation, which, however radical, neither 
 is expensive to the party making it nor 
 adds materially to the value. There 
 may be complete changes with so littli 
 improvement in value that there could be 
 no hardship in giving the owner of the 
 original materials the improved article." 
 
 One of two tenants in common of cer 
 tain timber land conveyed his undividec'l 
 half of the land by warranty deed to cer- 
 tain parties to whom he was indebted, 
 such parties agreeing orally to reconvey 
 upon the discharge of the indebtedness. 
 Subsequent to the sale of his interest iii 
 the land, and under authority previously 
 given by his co-tenant, the vendor sold a 
 quantity of the timber growing upon the 
 land to a third party, who cut and manu- 
 xfactured the same into hoops. An actioft 
 for replevin was brought by'the owner of 
 the land to recover the hoops. It was 
 shown upon trial that the value of the 
 timber was $25, and that the value of 
 the hoops was $700. Held, that evidence 
 showing that the defendant purchased 
 the timber and manufactured it in good 
 faith was admissible; and that upon such 
 showing he was entitled to have the jury 
 instructed that the title to the timber was 
 changed by a substantial change of iden- 
 tity, and that the remedy of the plaintiff 
 was by an action of trespass. Wetherbet 
 V, Green, 22 Mich. 311, s. c, 7 Am. Rep. 
 653. See Haskin v. Record, 32 Vt. 575; 
 Brown v. Sax, 7 Cow. (N. Y.)95; Elwell 
 V. Burnside, 44 Barb. (N. Y.) 447; Baker 
 V. Wheeler, Lock. Rev. Cas. (N. Y.) 470; 
 Alford V. Bradeen, i Nev. 228; Harmon 
 V. Gartman, Harp. (S. Car.) 430. 
 
 1. Murphy w. Sioux City, etc., R. Co., 
 55 Iowa, 473, and cases post, p. 55. 
 See Salisbury v. McCoon, 3 N. Y. 379 ; 
 s. c, 53. Am. Dec. 307. In this case it 
 was held, where a quanti,ty of corn was 
 taken from the owner by a, wilful tres- 
 passer and converted by him into whis- ' 
 key, that the property was not changed', 
 and that the whiskey belonged to the 
 owner of the original materials. In 
 Chandler v. Edson, g John. (N. Y.) 362', 
 It was held that where a party entered 
 
 54 
 
Confusion of Goods. 
 
 ACCESSION. 
 
 Confusion of Goods, 
 
 cannot be distinguished, such other person will be protected in^ 
 his, ownership, so far as the circumstances will permit.^ 
 
 If the goods of one person without his fault or by his consent be- 
 come so commingled with those of another, by the act of the latter, 
 as to be undistinguishable therefrom, the former has the right to 
 take and use from the common mass or lot his proportionate share, 
 without restriction in choice to any particular portion of the com- 
 mon lot, provided there is no advantage in selection as to quality, 
 value, or otherwise.® The same rule applies where the com- 
 
 upon the land of another and cut down 
 trees, of which he made shingles, he 
 acquired no property in the timber or 
 shingles. In Brock v. Smith, 14 Ark. 
 431, It was held that where one entered 
 upon land as a trespasser, felled timber, 
 and split it up Into cord-wood, the be- 
 stowal of his labor in splitting the tim- 
 ber into cord-wood neither wrought a 
 change in its specific character nor gave 
 him any title by accession. To the same 
 effect are also the following cases : Betts 
 V. Lee, 5 John. (N. Y.) 348 ; s. c, 4 Am. 
 Dec. 368 ; Nesbit v. St. Paul Lumber 
 Co., 21 Minn. 491 ; Brown v. Sax, 7 
 Cowen (N. Y.), 95 ; Freeman v. Under- 
 wood, 66 Me. 229.' In this last case the 
 defendant purchased a quantity of blue- 
 berries from persons who piclc^d them 
 from plaintiff's land as trespassers, and 
 it was held that although he acted in 
 good faith he became liable in trover to 
 the true owner. 
 
 Where the property has been so 
 changed in its character as to have lost 
 its identity, it ceases to have the same 
 legal existence, and the owner cannot 
 pursue it against third persons. Cross 
 V. Marston, 17 Vt. 533 ; s. c, 44 Am. 
 Dec. 353 ; Peirce v. Goddard, 22 Pick. 
 (Mass.) 559; s. u., 33 Am. Dec. 764. 
 
 Where certain trunks belonging to A 
 disappeared and were found, as claimed, 
 amongst other trunks in the store of 
 B, held, that, no tortious taking being 
 proved, it was error to instruct the 
 jury that if B wilfully took and carried 
 away the trunks and afterwards mixed 
 them with his own so that it was impos- 
 sible to identify them, then A was entitled 
 to recover any of B's goods to the 
 amount taken ; although such instruction 
 would have been correct if B had been 
 shown to be a wilful trespasser. Gray e/, 
 Parker, 38 Mo. 160. 
 
 1. Wetherbee v. Green, 22 Mich. 311 ; 
 s. c, 7 Am. Rep. 653 ; Ryder v. Hatha- 
 way, 21 Pick. (Mass.) 298 ; Smith v, 
 Sanborn, 6 Gray (Mass.), 134 ; Pratt v.' 
 Bryant, 20 Vt. 333 ; Rmggoid v. Rmg- 
 gold, I H. & G. (Md.) n. 
 
 If the property of each can be distin- 
 guished, it may be reclaimed. Frost v. 
 Willard, 9 Barb. (N. Y.) 440. 
 
 H bought a wagon of B, on condition 
 that it should remain the property of B 
 until paid for. C repaired it for H by 
 putting in new wheels and axles. H took 
 it from C's possession without his knowl- 
 edge or consent, and afterward agreed 
 with C that the " running part" supplied 
 by C should remain his property until 
 paid for. H never paid either B or C, and 
 neither had notice of the other's claim. 
 B took the wagon back and sold it to D, 
 who did not know of C's cla,im. Held, 
 that D was liable in trover for the wheels 
 and axles. Clark u. Wells, 45 Vt. 4. 
 Compare Gregory v. Stryker, 2 Denio 
 (N. Y.), 628. 
 
 If the property is not severable in its 
 nature, the partition must necessarily be 
 by agreement or proceedings in equity. 
 Tripp V. Riley, 15 Barb. (N. Y.) 333. 
 See Channon v. Lusk, 2 Lans. (N. Y.) 
 211 : Fiquet v. Allison, 12 Mich. 328 ; 
 Horr V Barker, 6 Cal. 489 ; Young v. 
 Miles, 20 Wis. 615. 
 
 2. Chandler z/. De Graff,_25 Minn. 88; 
 Jewitt V, Partridge, 12 Me.'243; Smith f. 
 Morrill, 56 Me. 566; Pratt v. Bryant, 20 
 Vt. 333; Perry v. Pettingill, 33 N. H. 
 433; Robinson v. Holt, 39 N. H. 557; 
 Cochran v. Flint, 57 N. H. 514; Adams 
 V. Wildes, 107 Mass. 123; Ryder v. 
 Hathaway, 21 Pick. (Mass.) 298; Gushing 
 K.- Breed, 14 Allen (Mass.), 376; Moore v. 
 Erie R. Co., 7 Lans. (N. Y.) 39; Clark 
 ■V. Griffith, 24 N. Y. 595; Se/mour v. 
 Wyckoff, 10 N. Y. 213; Nowlen v. Colt, 
 6 Hill (N. Y.), 461; s. c, 41 Am. Dec. 
 756; Wilson u. Nason, 4 Bosw. (N. Y.) 
 155; Sims v. Glazener, 14 Ala. 695; 
 Alley V. Adams, 44 Ala. 609; Wood v. 
 Fales, 24 Pa. St. 246; Hamilton v. 
 Rogers, 8 Md. 301; Randolph z/. Gwynne, 
 3 Halst. Ch. (N. J.) 88; Stephenson v. 
 Little, 10 Mich. 433; Fowler v. Hoffman, 
 31 Mich. 215; Dole v. Olmstead, 36 111. 
 150, Warner v. Cushman, 31 III. 283; 
 Young V. Miles, 20 Wis. 615, Adams w, 
 Meyers, i Sawy. (U. S.) 306; South 
 
 55 
 
Confusion of Goods. 
 
 ACCESSION. 
 
 Confusion of Goods. 
 
 mingling was caused by accideht or vis major ;^ or by the mistake 
 
 Australian Ins. Co! v. Randell, L. R. 3 
 P. C. loi. Compare Brakely v. Tuttle, 3 
 W.Va.86; Redington w.Chase,44N.H.36. 
 
 Where a person taking his wheat to a 
 mill to be ground, by the assent of the 
 miller mingles it with the wheat of the 
 miller, he does not thereby lose his 
 property in the wheat, but retains a prop- 
 erty in so many bushels of the com- 
 mon stock as he has put in; although, by 
 a contract between the parties, the per- 
 son delivering it is to receive a certain 
 quantity of flour for a certain number of 
 bushels of wheat. Inglebright v. Ham- 
 mond, 19 Ohio, 337. See Adams v. 
 Meyers, i Sawy. (U. S.) 306. 
 
 In filling certain contracts for railroad 
 ties, plaintiff delivered about 20,000 in 
 excess of the contracts, which defendants 
 refused to accept. Such surplus having 
 by the act of the plaintiff, and without 
 fault of the defendants, become so inter- 
 mingled with the accepted ties belonging 
 to the latter as to be undistinguishable 
 therefrom, held, that the defendants 
 were entitled of right to take and use 
 from the common lot a number equal to 
 their proportionate share of the whole. 
 Chandler v. De Graff, 25 Minn. 88. 
 
 Where various parties deliver grain for 
 storage to the keeper of an elevator, 
 who, without any agreement to that 
 effect, and without the knowledge of the 
 owners, but according to the custom in 
 such cases, mixes in a common mass all 
 the grain of the same kind and quality, 
 the several owners become tenants in 
 common of the entire amount in store of 
 like quality; %nd where in such case the 
 elevator and its contents are burned 
 through the negligence of a railway com- 
 pany, each owner may recover of the 
 company the value of his grain so 
 destroyed. In such case the warehouse- 
 man would not be liable to the owners of 
 ithe grain, as his act of mixing it was not 
 a conversion; and the fact that one of 
 the owners of the grain brought an action 
 against the warehouseman to recover the 
 value of his grain, pn the ground that 
 the act of mingling was a conversion of 
 it, in which action he failed to recover, 
 •would not defeat him in his action 
 against the railway company. Arthur v. 
 Chicago, etc., R. Co.. 61 Iowa.648; Stone 
 V. Quaale, 2g N. W. Repr. (Iowa) 326. 
 See Dole v. Olmstead, 36 111. 150. 
 
 Where distilled spirits forfeited to the 
 U. S. are mixed with other distilled 
 spirits belonging to the same person 
 (ignorant of the forfeiture), they are not 
 lost to the government by such mixture, 
 
 even though subsequently run through 
 leaches for the purpose of rectification. 
 The government will be entitled to its 
 proportion of the result. The Distilled 
 Spirits Cases, 11 Wall. (U. S.) 356. 
 
 Where A places his logs in a pile be- 
 longing to B, an4 marks them with the 
 same mark as the logs of B are marked 
 with, A can afterward claim only such 
 logs as can be identified as his properly. 
 Dillingham v. Smith, 30 Me. 370. 
 
 This rule applies where one has made 
 additions to machinery belonging to 
 another. Alley v. Adams, 44 Ala. 609. 
 
 If a portion of the mass was destroyed, 
 one owner cannot take out an amount 
 equal to that put in by him, and throw 
 the whole Ipss on the other party. 
 Spence v Union M. Ins. Co., L. R. 3 C. 
 P. 427; Dole V. Olmstead, 36 111. 150, 
 41 111. 344. 
 
 Pelts piled by A upon those belonging 
 to B will not render B's pelts liable to 
 an execution against A. Oilman v. Hill, 
 36 N. H. 311. Or pork or lard so com- 
 mingled. Huff V. Earl, 3 Ind. 306. Or 
 oil in tanks. Wilkinson v. Stewart, 85 
 Pa St. 255. Or hay. Robinson v. Holt, 
 39 N. H. 557. Or grain. Starr v. Wine- 
 gar, 3 Hun (N. Y.), 491. See Low v. 
 Martin. 18 111. 286; Nowlen v. Colt, 6 
 Hill (N. Y.), 461; s. c, 41 Am. Dec. 756; 
 Seymour v. Wyckoff, 10 N. Y. 213; Sam- 
 son V. Rose. 65 N. Y. 4T1; Kauffmann v. 
 Schilling. 58 Mo. 218; Sims v. Glazener, 
 14 Ala. 695; Inglebright v. Hammond, 
 19 Ohio, 337. 
 
 1. Cotton belonging to different own- 
 ers was shipped, in bales specifically 
 marked, at Mobile for Liverpool ; 43 
 bales belonged to the plaintiffs, and were 
 insured by the defendants against the 
 usual perils. In the course of her voy- 
 age the ship was wrecked near Key 
 West; all the cotton was more or less 
 damaged; some of it was lost, and some 
 was so damaged that it had to be sold at 
 Key West. The rest of the cotton was 
 conveyed in another vessel to Liverpool. 
 The marks on a very large number of 
 the bales were so obliterated by sea- 
 water that none of the cotton lost or sold 
 at Key West, and a portion only of that 
 carried to Liverpool, could be identified 
 as belonging to any particular consignee. 
 Two only of the plaintiffs' 43 bales were 
 identified, and these were delivered to 
 the plaintiffs, Held, that in respect of 
 the cotton lost and thai sold at Key 
 West there was a total loss of a part 
 ot each owner's cotton, and that all the 
 owners became tenants m common of 
 
 66 
 
Oonfosion of Goods, 
 
 ACCESSION. 
 
 Confusion of Goods. 
 
 of one owner,* or by the wrongful act of a stranger,* or by any 
 natural cause.* But if the commingling was made wilfully and 
 without mutual consent, the property becomes that of the person 
 whose property was originally invaded, if its distinct character is 
 destroyed.* 
 
 the cotton which arrived at Liverpool 
 and could not be identified; the share of 
 each owner's loss in the cotton totally 
 lost or sold at Key West, and his share 
 in the remainder which arrived at Liver- 
 pool, being in the proportion that the 
 quantity shipped by him bore to the 
 whole quantity shipped, according to the 
 rule in cases of general average where it 
 is not known whose goods are sacrificed; 
 and, consequently, that there was no 
 total loss, either actual or constructive, 
 of the plaintiffs' 41 bales. Spence v. 
 Union Marine Ins, Co., L. R. 3 C. P. 
 427. See Moore v. Erie R. Co., 7 Lans. 
 (N. Y.) 39; Sheldon v. Sherman, 42 Barb. 
 (N. Y.) 368; Washburn v. Oilman, 64 
 Me. 163; Gentry v. Madden, 3 Ark. 
 127; Rogers v. Judel, 5 Vt. 236; Foster 
 V. Juniata B. Co., 16 Pa. St. 393. 
 
 1. Pratt V. Bryant, 20 Vt. 333; Ryder 
 V. Hathaway, 21 Pick. (Mass.) 298; 
 Moore v. Bowman, 47 N. H. 494; Thorne 
 V. Colton, 27 Iowa, 425. 
 
 2. Bryant v. Ware, 30 Me. 295. 
 
 3. State V. Burt, 64 N. Car. 619. The 
 rule of law as to confusion of goods does 
 not apply to logs floating in a stream so 
 
 I distinctly marked that their identity is 
 ■ not lost. Goff V. Brainerd, 5 Atl. Repr. 
 (Vt.) 393. 
 
 4. 2 Kent's Com. 364; Silsbury v. 
 McCoon, 3 N. Y. 379; s. c. , 53 Am. Dec. 
 307; Roth V. Wells, 29 N. Y. 471; Joslin 
 V. Cowee, 60 Barb. (N. Y.) 48; Hart v. 
 Ten Eyck, 2 Johns. Ch. (N. Y.) 62; Bab- 
 cock V. Gill, 10 Johns. (N. Y.) 287; Betts 
 V. Lee, 5 Johns. (N. Y.) 348; s, c, 4 Am. 
 Dec. 368; Curtis v. Qroat, 6 Johns. (N. 
 Y.) 168; s. c, 5 Am. Dec. 204; Brown 
 V. Sax, 7 Cow. (N. Y.) 95 ; Baker v. 
 Wheeler. 8 Wend. (N. Y.) 505; Gor- 
 den V. Jenny, 16 Mass. 465; Willard 
 V. Rice, II Mete. (Mass.) 493; s. c, 
 45 Am. Dec. 226; Smith v. Sanborn, 
 6 Gray (Mass.), 136; Treat v. Barber, 7 
 Conn. 280; Barron v. Cobleigh, 11 N. H. 
 557; Seavy v. Dearborn, 19 N. H. 351; 
 Robinson v. Holt, 39 N. H, 557; Smith 
 V. Morrill, 56 Me. 566; Hesseltine u. 
 Stockwell, 30 Me. 237; s. c, soAm. Dec. 
 627; Dillingham v. Smith, 30 Me. 370; 
 Loomis V. Green, 7 Me. 386; .'^nyder v, 
 Vaux, 2 Rawle (Pa.), 423; s. c, 2i Am. 
 Dec. 466; Brakely v. Tutlle, 3 W. Va. 
 86; Brackenridge w. Holland, 2 Blackf. 
 (Ind.) 377; s. c, 20 Am. Dec. 123; Beach 
 
 57 
 
 V. Schmultz, 20 111. 185; Diversey v- 
 Johnson, 93 111. 547; Jenkins i/. Steanka> 
 19 Wis. 128; Root V. Bonnema, 22 Wis- 
 539; Stephenson v. Little, 10 Mich. 433; 
 Riddle v. Driver, 12 Ala. 590; Alley 
 V. Adams, 44 Ala. 609; Weil v. Silver- 
 stone, 6 Bush (Ky.), 698; The Idaho, 3 
 Otto (U. S.), 575. 
 
 The question of intent is for the jury. 
 Taylor v. Jones, 42 N. H. 25. 
 
 To work a forfeiture of the whole mass 
 where one has confused his own goods 
 with those of other persons, two things 
 are requisite; namely, that the confusion 
 be made fraudulently, and that after such 
 confusion the articles be incapable of 
 identification or apportionment. Jewett 
 V. Dringer, 30 N. J. Eq. 291. See Hes- 
 seltine V. Stockwell, 30 Me. 237; s. c. , 50 
 Am. Dec. 627; Stephenson v. Little, 10 
 Mich. 433; Wetherbee v. Green. 22 
 Mich. 311; s. c, 7 Am. Rep. 653; Starr 
 V. Winegar, 3 Hun (N. Y.), 491; Alley v. 
 Adams, 44 Ala. 609. 
 
 A junk-dealer by fraudulent collusion 
 with the employees of a railroad com 
 pany obtained large quantities of old 
 iron at much less than the actual weight 
 or value. On delivery it was thrown in- 
 discriminately on other heaps of old iron 
 belonging to him, so as to be undistin- 
 guishable. Held, that he must forfeit the 
 whole mass to the company. Jewett v. 
 Dringer, 30 N. J. Eq. 291. See 
 McDowell V. Rissell, 37 Pa. St. 164; 
 Redington v. Chase, 44 N. H. 36; Seavy 
 ■V. Dearborn, 19 N. H. 351; Willard v. 
 Rice, II Mete. (Mass.) 493; s. c.,45 Am. 
 Dec. 226; Beach v. Schmultz, 20 111. 185; 
 Jenkins v. Steanka, 19 Wis. 128; Smith 
 V. Welch, 10 Wis. 91. 
 
 Where materials are removed from 
 a house by a mortgagor, and sold and 
 used by his purchaser in building a house 
 on other lands, the mortgagee cannot fol- 
 low them. Peirce v. Goddard, 22 Pick. 
 (Mass.) 559. See Madigan v. McCarthy, 
 i-i'S Mass. 376; Beers v. St. John, 16 
 Conn. 322; Salter v. Sample, 71 111. 430. 
 
 Bricks laid, in wall become part of the 
 realty. Moore v. Cunningham, 23 111. 
 328. See Wadleigh v. Janvrir, 41 N. H. 
 503; Beard ». Duralde. 23 La. Ann. 284. 
 
 Where the materials can be distin- 
 guished there will be no forfeiture and 
 each party may claim his property. 
 Hesseltine v. Stockwell, 30 Me. 237. 
 
mortgage, 
 
 ACCESSION. 
 
 Beplevin^ 
 
 6. Mortgage. — Where goods are mortgaged and are afterwards 
 intermixed with other goods, the whole mass is covered by the 
 
 Where"plaintiff .cut logs on defendant's 
 land and marked the same as his own, 
 and commingled them, — in action for 
 trover for logs taken by the defendant 
 in excess of the number taken from him, 
 held, that he was not liable for con- 
 version until the plaintiff pointed out 
 his property and demanded it. Smith 
 V. Morrill, 56 Me. 566. See Bryant v. 
 Ware, 30 Me. 295; Barron v. Cobleigh, 
 II N. H. 559; May v. Bliss, 22 Vt. 477; 
 Root V. Bonnewa, 22 Wis. 539; Goode- 
 now V. Snyder, 3 Greene (Iowa), 599; 
 Stearns v. Raymond, 26 Wis. 74. 
 
 Where plaintiffs sent a large number 
 of cloths to be printed, and the sheriff 
 seized all the goods in the factory, and 
 the plaintiffs then claimed 250 pieces, 
 but not being able to identify their goods 
 claimed that number of similar goods, 
 held, that if the printers had actually 
 confused them the claim must be allowed. 
 Wood V. Fales, 24 Pa. St. 246. 
 
 A licensee mixed the coals gotten 
 under the license with those gotten from 
 his own colliery, and sold them together. 
 He alleged that the coals gotten under 
 the license were inferior in value to the 
 other coals. Held, that as they had been 
 mixed by the licensee's own act, he was 
 rot entitled to any inquiry as to how 
 much the selling price of the coals was 
 diminished by the mixture of the coals 
 gotten under the license. Lord Rokeby 
 V. Elliot, L. R. 9 Ch. D. 685; 13 Ch. D. 
 277. See Seymour v. Wyckoff, 10 N. Y. 
 213. 
 
 Exeoution. — If a person adds to goods 
 acquired under a fraudulent sale, in which 
 he participated, other goods subsequent- 
 ly purchased, he is not entitled, in an 
 action against an officer who attaches, 
 all the goods as the property of the 
 fraudulent vendor of the first-named 
 goods, to recover the value of the goods 
 subsequently purchased, if the mingling 
 them with the other goods was purposely 
 done or through want of proper care. 
 Stearns v. Herrick, 132 Mass. 114. 
 
 If the purchaser of goods from an in- 
 solvent debtor, intentionally intermingles 
 them with his own goods, and refuses 
 to furnish to the sheriff seeking to levy 
 an execution on them, as the property of 
 the seller, the information necessary to 
 distinguish and separate them, he can- 
 not claim any advantage from the con- 
 fusion of goods; and having interposed a 
 statutory claim to the goods levied on, 
 the duty is cast on him to furnish the 
 evidence necessary to separate his own 
 
 goods from the others. Lehman w. 
 Kelly, 68 Ala. 192. See Weil v. Silver- 
 stone, 6 Bush (Ky.), 6g8; Chappell t/.' 
 Cox,^i8 Md. 513; Shumway v. Rutter, 8 
 Pick* (Mass.) 443; Sawyer v. Merrill, S 
 Pick. (Mass.) 478; Taylor v. Jones, 42 N;' 
 H, 25'; Albee v. Webster, 16 N. H. 362;' 
 Robinson v. Holt, 39 N. H. 557; Roth 
 w. Wells, 29 N. Y. 471; McDowell v: 
 Rissell, 37 Pa. St. 164; Smith v. Welch,: 
 ID Wis. gi; Weil v. Silverstone, 6 Bush' 
 (Ky.), 698; Wellington v. Sedgwick, 12 
 Cal. 469. Compare Thorne-z'. Colton, 27 
 Iowa, 425; Treat v. Barber, 7 Conn. 274; 
 Kingsbury v. Pond, 3 N. H. 511; Wilson- 
 V. Lane, 33 N. H. 466. 
 
 Where logs were seized under execuJ 
 tion against the mortgagor, and the 
 mortgagee sued the sheriff for damages, 
 and it was contended that the logs were 
 not so described in the mortgage as to 
 be capable of identification, held, that 
 as the difficulty of identification was 
 caused by the wrongful confusion by the 
 mortgagor of the logs with other logs, 
 the mortgagee, being innocent, could not 
 suffer thereby. Merchants' Nat. B. v. 
 McLaughlin, 2 Fed. Rep. 128. See 
 Beach v. Schmultz, 20 111. 185. 
 
 Beplevin, — The owner of property 
 wrongfully taken may pursue it so long 
 as it can be identified, whatever alter- 
 ation in form it may assume, unless it is \ 
 annexed to or made a part of some 
 other thing which is the principal, as 
 timber converted into a house. Davis 
 V. Easley, 13 111. 192. See Silsbury v. 
 McCoon, 3 N. Y. 379; s. c, 53 Am. Dec. 
 307, where corn was made into whiskey; 
 Curtis V. Groat, 6 Johns. (N. Y.) 168; 
 Riddle a. Driver, I2 Ala. 590, where 
 trees were made into charcoal; Foster 
 V. Warner, 49 Mich. 641; Betts v. Lee, 
 5 Johns. (N. Y.) 349; s. c.,4 Am. Dec. 
 368; Chandler z;. Edson, 9 Johns. (N. Y.) 
 362, where lumber was made into shingles; 
 Brock V. Smith, 14 Ark. 431, where 
 trees were cut into cord wood; Heard v. 
 James, 49 Miss. 236. where lumber was 
 made into staves; Snyder v. Vaux, 2 
 Rawle (Pa.), 423; s. c, 21 Am. Dec. 466; 
 Millar V. Humphries, 2 A. K. Marsh. 
 (Ky.) 446, where trees were made into 
 posts and rails; Hyde v. Cookson, 21 
 Barb. (N. Y.)92, where hides were made 
 into leather: Pierrepont v. Barnard, 5 
 Barb. (N. Y.) 364; Fival v. Backus, 18 
 Mich. 2l8, where trees were made into 
 timber; Lake Shore, etc., R. Co. v. 
 Hutchins, 32 Ohio St. 571; s. c, 37 Id. 
 282; Smith V. Gonder, 22 Ga. 353, where 
 
 58 
 
Damages. 
 
 ACCESSION. 
 
 Animals. 
 
 mortgage. So, also, if the goods are manufactured into a finished 
 article, or there is any natural increase.^ 
 
 trees were made into railroad ties; Hal- 
 leck V. Mixer, i6 Cal. 574; Moody v. 
 Whitney, 34 Me. 563; Brewer v. Flem- 
 ing, 51 Pa. St. 102, where trees were 
 made into fire-wood; Brown v. Sax, 7 
 Cow. (N. Y.) 95; Baker v. Wheeler, 8 
 Wend. (N. Y.) 505 ; Davis v. Easley, 13 
 111. 192, where trees, or logs, were made 
 into boards; Eastman v. Harris, 4 La. 
 Ann. 193, where a raft of logs was 
 made into fire-wood; Jackson v. Walton, 
 28 Vt. 43, where stone was taken from a 
 quarry, dressed, and laid in a pavement. 
 
 As to what goods replevin may be 
 brought, see Wingate v. Smith, 20 Me. 
 287; Hesseltine v. Stockwell, 30 Me. 
 237; Loomis V. Green, 7 Me. 386; Ames 
 V. Miss. B. Co., 8 Minn. 467; Wood v. 
 Fales. 24 Pa. St. 246. 
 
 Damages. — Timber was cut from lands 
 of B by trespassers, who by their labor 
 converted it into cord-wood and railroad 
 ties, thus increasing its value threefold. 
 It was sold to an innocent purchaser, 
 who was sued by B for the value of the 
 wood and ties. Held, that B could not 
 recover the value of the timber as en- 
 hanced by the labor of the wrong-doers 
 after it was severed from the realty. 
 Lake Shore, etc., R. Co. v. Hutchins, 32 
 Ohio St. 571, 37 Id. 282. See Salmon v. 
 Horwitz, 23 L. J. Q. B. 77; Weymouth 
 V. Chicago, etc., R. Co., 17 Wis. 556; 
 Single V. Schneider, 30 Wis. 570; Ellis 
 V. Wire, 33 Ind. 127; a. <_., Am. Rep. 
 189; Moody V. Whitney, 38 Me. 174; 
 Buckmaster w. Mower, 21 Vt. 204; 
 Forsyth v. Wells, 41 Pa. St. 291; Herdic 
 V. Young, 55 Pa. St. 176; Grant v. 
 Smith, 26 Mich. 201 ; Farwell v. Price, 
 30 Mo. 587; Heard v. James, 49 Miss. 
 236. Compare^s.%tiA v. St. Paul L. Co., 
 21 Minn. 491; Pearson v. Inlow, 20 Mo. 
 322; Stuart V. Phelps, 39 Iowa, 14; 
 Hungerford v. Redford, 29 Wis. 345; 
 Smith V. Gonder, 22 Ga. 353; Bailey v. 
 Shaw, 28 N. H. 297; Coxe v. England, 
 65 Pa. St. 212; Hill V. Canfield, 56 Pa. 
 St. 454; Benjamin v. Benjamin, 15 Conn. 
 
 347- 
 
 1. Story on Bailments, § 292 ; Putnam 
 V. Gushing, 10 Gray (Mass.), 334; Har- 
 din V. Coburn, 12 Mete. (Mass.) 333 ; 
 Comins v. Newton, 10 Allen (Mass.), 
 518 ; Sumner J/. Hamlet, 12 Pick, (Mass.) 
 76. See Bryant v. Pennell, 61 Me. 108 ; 
 Pulcifer v. Page, 32 Me. 404 ; s. c, 54 
 Am. Dec. 582 ; Cudworth v. Scott, 41 
 N. H. 456 ; Perry v. Pettengill, 33 N. H. 
 433; Putnam z^.Cushing, 10 Gray (Mass.), 
 
 59 
 
 334 ; Simmons v. Jenkins, 76 111. 479 ; 
 Merchants' Nat. B. v. McLaughlin, 2 
 Fed. Repr. 128; Jenckes v. Goffe, i R. I. 
 511 ; Fowler v. Merrill, 11 How, (U. S.) 
 375 ; Evans ■z'. Merriken, 8 G. &J, (Md.) 
 39 ; Frost v. Willard, 9 Barb. (N. Y.> 
 440 ; Forman v. Proctor, 9 B. Mon. 
 (Ky.) 124 ; Evans v. Merriken, 8 G. & J. 
 (Md.) 39 ; Thorpe v. Cowles, 55 Iowa, 
 408 ; Kellogg V. Lovely, 46 Mich. 131 ; 
 s. c, 41 Am, Rep. 151. 
 
 Mortgage. — Where a mortgagor of 
 goods intrusted with possession mingles 
 them with his own goods, so that they 
 cannot be distinguished, he loses his 
 property as against the mortgagee, and 
 the latter may claim the whole: against 
 the mortgagor and his consignees. Wil- 
 lard V. Rice, II Mete. (Mass,) 493 , 
 s. c, 45 Am. Dec 226. See Adams v. 
 Wildes, 107 Mass. 123. 
 
 Where new materials are purchased, 
 after giving a chattel mortgage, to supply- 
 the place of materials which are worn 
 out, and the new materials, such as type, 
 are so commingled with the old mate- 
 rials as not to be easily distinguished, 
 held, that new materials (if not kept 
 separate) become part of the old by ac- 
 cession, and are covered by the mort- 
 gage. Fowler v. Hoffman, 31 Mich, 215. 
 
 The mortgage of a vessel attaches 10 
 -a. new set of sails provided by the mort- 
 gagor, after its execution, to replace old 
 sails. Southworth v. Isham, 3 Sandf. 
 (N. Y.) 448. 
 
 Where leather, which has been cut and 
 prepared to make into shoes is covered 
 by a chattel mortgage, the shoes which 
 are subsequently made will be also cov- 
 ered by the mortgage, Putnam zu 
 Gushing, 10 Gray (Mass.). 334. 
 
 Animals. — Where one buys a mare on 
 credit and gives a chattel mortgage on- 
 her for the entire purchase-price, and she 
 is afterwards found to be with foat 
 which is not weaned before the credit 
 expires, he is not entitled to keep the colt 
 if he makes default in payment and 
 the mare is taken on the mortgage. 
 Kellogg V. Lovely, 46 Mich. 131 ; s. c, 
 41 Am, Rep. 151. See Forman v. Proc- 
 tor, 9 B. Mon. (Ky.) 124; Thorpe v. 
 Cowles, 55 Iowa, 408; Gundy v. Biteler, 
 6 111. App. 510 ; Evans !<. Merriken. 8 G. 
 & J. (Md.) 39 ; Fowler v. -Merrill, 11 
 How. (U. S.) 375- 
 
 To entitle a chattel-mortgagee to the 
 offspring of stock included in his mort- 
 gage, he must show that such offspring 
 
-Accmmts. 
 
 ACCESSION. 
 
 Trasteea, 
 
 7. Accounts. — The rules as to confusion of goods apply to ac- 
 counts.* 
 
 8. Trnstees. — Where an executor converts an estate into money, 
 and mixes it with the general mass of his own money, and there 
 is no identifying the particular money of the trust, the distribu- 
 tees or legatees have no preference over his other creditors, but 
 
 were conceived prior to tiie date of his 
 mortgage, or tliat since their birth they 
 have been in the open possession of him- 
 self or his agent ; and where the evi- 
 dence in his behalf, as to the age of off- 
 spring and fact of their conception prior 
 to his mortgage, was mere opinion, of 
 •the witness, and not positive knowledge, 
 ■held, insuflScient. Thorpe v. Cowles, 55 
 Iowa. 408. 
 
 It has been held that unless the in- 
 -crease is included^ and the mortgagor 
 remains in possession, the mortgage does 
 not cover the increase. In an action of 
 replevin, the property replevied was de- 
 scribed as " one sorrel last spring's colt ; 
 twenty-six head of black and white spot- 
 ted shoats, about ten months old," etc. 
 Plaintiff claimed this property by virtue 
 •of a chattel mortgage, in which the prop- 
 erty was described as "one bay mare 
 eleven years old, named Tony ; one gray 
 horse about nine years old, named Pet ; 
 one sorrel mare four years old, named 
 Bet ; fifty head of hogs from six weeks 
 Jo two yeai-s old." Evidence was intro- 
 duced that one of said mares was in foal 
 at the dale of the mortgage, and dropped 
 the colt replevied some time afterwards; 
 also that some of the shoats replevied 
 were pigged. Held, that as to the colt 
 and shoats the verdict was not sustained 
 by the evidence. See Winter v. Land- 
 phere, 42 Iowa, 471. 
 
 A chattel mortgage conveying a stock 
 ■of goods and " all books of account and 
 rights of credit arising out of said busi- 
 ness" did not cover accounts subse- 
 quently accruing upon the sale of the 
 goods by the mortgagor, with the con- 
 sent of the mortgagee, in the regular 
 course of trade. Lormer v. AUyn, 64 
 Iowa, 725. 
 
 Additions made to unfinished machin- 
 ery which is covered by a mortgage are 
 also included in the mortgage. Ex parte 
 Ames, I Law Dec. (U. S.) 561. Jenckes 
 T). Goffe, I R. I. 511- 
 
 Repairs and improvements made upon 
 rolling stock by a company which had 
 acquired the right to control the road, 
 subsequently to the mortgage, are in the 
 natnre of accessions to a mortgaged 
 chattel, and subject first to the mortgage 
 that had priority of date. Hamlin ^., 
 
 Jerrard. 72 Me. 62 ; s. c, 4 Am. & Eng. 
 R. R. Cas. 488. 
 
 Crops, Plants, etc. — Plants and shrubs, 
 the growth of cuttings from plants and 
 shrubs mortgaged, pass to the mortgagee 
 by accession. Bryant v. Pennell, 61 
 Me. 108 ; s. c, 14 Am. Rep. 550. 
 
 Pending foreclosure proceedings un- 
 der a mortgage of certain land, together 
 with the rents, issues, and profits thereof, 
 the court is authorized to appoint a re- 
 ceiver to take possession of the mort- 
 gaged premises and harvest and market 
 the crop growing thereon which had 
 been planted by defendant ; the crops in 
 such case would be part of the mort- 
 gaged property. Montgomery i/. Merrill, 
 65 Cal. 432. 
 
 Where a mortgagor brought trover for 
 the conversion of a crop of growing 
 corn, held, that' he was entitled to re- 
 cover the value of the corn in the crib in 
 which it had been put by the defendant 
 after husking, and that if the defendant 
 had commingled it with his own corn 
 the duty of separating it lay on him; 
 also that the cost of husking and gather- 
 ing could not be deducted. Stuart v. 
 Phelps, 39 Iowa, 14. See Lewis v. 
 Whittenmore, 5 N. H. 364 ; Benjamin 
 V. Benjamin, 15 Conn. 347 ; Backen- 
 stoss V. Stabler, 33 "Pa. St. 251 ; Cook v. 
 Steel, 42 Tex. 53. Compare Lake Shore, 
 etc., R. Co. V. Hutchins, 32 Ohio St. 
 571 ; 37 Id. 282. 
 
 Where one mixes his own goods with 
 those of another, which are mortgaged, 
 and refuses to separate the goods, if the 
 mortgagee takes the goods confounded 
 with his own, he will not be a trespasser. 
 Fuller V. Paige, 26 111. 358. See Rider 
 V. Hathaway, 21 Pick. (Mass.) 298 ; 
 Simpson I/. Carleton, i Allen (Mass.), log. 
 
 1. Where a surviving partner, after 
 the death of his partner, still bought 
 goods in the firm-name of another firm, 
 of which he was a partner, and had or 
 allowed the same to be charged to the 
 old firm, the same as before the death 
 of his partner, thereby so confounding 
 that which was a liability of the firm 
 with his as surviving partner as to 
 render it impossible to separate the two, 
 held, that the consequences of the confu- 
 sion must fall upon him, unless he Could 
 
 60 
 
Definition. ACCESSORY. Definiticnt: 
 
 they must prove their claims.^ (See EXECUTORS AND Adminis-^ 
 TRATORS.) A trustee must not mingle the trust fund with his own.. 
 If he does, the cestui que trust may follow the trust property,, 
 and claim every part of the blended property which the trustee- 
 cannot identify as his own '-* (See TRUSTS.) 
 
 9. Real Property. — Where permanent buildings or improvements, 
 are made upon real property in the way of buildings, etc., they 
 become the property of the owner of the land.* (See FiXTURKS.) 
 
 ACCESSORY— ACCOMPLICE— AIDER— ABETTOR. See particular 
 titles, as ABDUCTION, ABORTION, etc; also CONFESSION ; CON- 
 SPIRACY ; Homicide; Strikes. 
 
 1. Definition. 
 
 2. Aiders and Abettors. 
 
 3. Intent. 
 
 4. Indictment. 
 
 5. Persons seeking to discover Crime. 
 
 6. Innocent Agent. 
 
 7. Common Purpose. 
 8." Before the Fact. 
 9. Knowledge. 
 
 10. Where the Crime suggested is committed in a Different Way. 
 
 1 1 . Where the Crime committed is Probable Consequence of the Crime - 
 
 suggested. 
 
 12. Where Instigation is countermanded. 
 
 1 3. Instigation to commit a Crime different from the one committed. 
 
 14. Constructive Presence. 
 
 1 5. As Principals. 
 1 5. After the Fact. 
 
 17. As Principals. 
 
 18. Evidence. 
 
 1. Definition. — An accessory is a person guilty of a felonious of- 
 fence, not by being the actor or actual perpetrator of the crime, 
 nor by being present at its performance, but by being in someway 
 concerned therein either before or after its commission. If he- 
 has been concerned in it before its commission he is termed an 
 accessory before the fact ; if after, an accessory after the fact. An 
 accessory before the fact is one who, being absent at the time the 
 crime is committed, yet procures, counsels, or commands another- 
 to commit it ; and, in this case, absence is necessary to constitute 
 him an accessory, for if he is present he is guilty of the crime as . 
 principal. Thus if A advises B to kill another, and B does it in 
 the absence of A, in this case B is principal, and A accessory to- 
 the murder. An accessory after the fact is one who, knowing a 
 felony to have been committed, receives, relieves, comforts, or- 
 assists the felon ; and, generally, any assistance whatever given to a. 
 
 show the parts chargeable to each. Di- the note. Beach v. Forsyth, 14 Barb. 
 
 ver.'sey v. Johnson, 93 III. 547. (N. Y.) 499. 
 
 Where a factor sold goods of his prin- 1. Perry on Trusts, S 128. 
 cipal, together with his own, and took 2. Perry on Trusts, § 447. 
 one note for whole amount, which was 3. 2 Kent's Com. 362 ; Ewell on Fix- 
 paid, held, that the principal could re- tures, 57. 
 
 cover his proportion of the amount of Authorities for Accession. — 2. Shoulei.. 
 
 61 
 
Aider— Abettor. 
 
 ACCESSORY. 
 
 What Constitutes, 
 
 felon, to hinder his being apprehended, tried, or suffering punish- 
 ment,, makes such assister an accessory, — as, furnishing him with a 
 horse -to- escape his pursuers, money or victuals to support him, a 
 house or other shelter to conceal him, or using open force and vio- 
 lence to protect him.i 
 
 2. To abet is to incite a person to commit a crime; an abet- 
 tor is a person who, being present or in the neighborhood, incites 
 another to commit a crime, and thus becomes a principal.* 
 
 on Per. Prop. § 47 et seq. ; Story's Bail- 
 ments, § 40. 
 
 1. Brown's Law Diet. (Sprague's ed.); 
 2 Hawlc. P. C. 316-318; Russell on 
 Crimes (9th amd. ed.) 49; 4 Black. Com. 
 c. 3; Wharton's Cr. L. § 213. 
 
 An accomplice is a person involved 
 either directly br indirectly in the com- 
 mission of the crime. To render him 
 such, he must in some manner aid, or 
 assist, or participate in the criminal act, 
 and by that connection he becomes 
 equally involved in guilt with the other 
 party by reason of the criminal transac- 
 tion. People V. Smith, 28 Hun (N. Y.), 
 ^26; 'Cross V. People, 47 III. 152. 
 
 The definition of an accomplice as 
 "one who being present aids by acts or 
 encourages by words the principal of- 
 fender in commission of the offence " 
 held erroneous, as such a person would 
 be principal. Smith v. State, 13 Tex. 
 App, 507. 
 
 Persons who play together at an unlaw- 
 ful game are several and joint offenders, 
 and therefore not accomplices of each 
 ■other. Stone v. State, 3 Tex. App. 675. 
 Compare Smith v. State, 37 Ala. 472; 
 Bass V. State, 37 Ala. 469; English v. 
 State, 35 Ala. 428; Davidson v. State, 33 
 Ala. 350. 
 
 A person who joins in a game of ten- 
 pins at the request of others, who are 
 getting upon it, but without betting him- 
 self, is ilot an accomplice. Bass v. State, 
 37 Ala. 469; see Smith v. State, 37 Ala. ■ 
 
 472- 
 
 The purchaser of liquor sold in viola- 
 tion of law is not an accomplice of the 
 seller. People v. Smith, 28 Hun (N. Y.), 
 626; State V. Teahan, 50 Conn. 92. 
 
 A boy twelve years old who is coerced 
 is not an accomplice. Beal v. State, 72 
 Ga. 200; People v. Miller, 6 Pac. Repr. 
 
 (Cal.)99- . . , u 
 
 To hold an accessory as pnncipal, he 
 tpust do some act to connect him with 
 the crime while it is being committed. 
 Bean v. State, 17 Tex. App. 60. 
 
 Mere approval of the act or sympathy 
 with the perpetrator is not sufficient to 
 constitute one an accessory. State v. 
 
 62 
 
 Cox, 65 Mo. 29; Connaughty ij. State, i 
 Wis. 169. Nor concealing the felonious 
 purpose. White v. People, 81 111. 333. 
 , A conspiracy may be inferred where it 
 is shown that any two of the parties 
 charged aimed by their acts to accom- 
 plish the same unlawful purpose or ob- 
 ject, one performing one part and an- 
 other another part of the same so as 
 to complete it, although they never met 
 together to confer the means or to give 
 effect to the design. U. S. v. Sacia, 2 
 Fed. Repr. 754. 
 
 It is sufficient if it is proved that the 
 defendants pursued by their acts the 
 same object often by the same means, 
 one performing one part and another an- 
 other part of the same, so as to complete 
 it with a view to the attainment of the 
 same object. Mussel Slough Case, 5 
 Fed. Repr. 680. 
 
 A conspiracy to plunder a wrecked 
 vessel within the admiralty and maritime 
 jurisdiction of the United States is an 
 offence under R. S. § 5440. U. S. v. 
 Sanche, 7 Fed. Repr. 715. 
 
 Where two are engaged in committing 
 a larceny from the person, all who are 
 present, aiding or abetting, are princi- 
 pals; but one receiving stolen property 
 is guilty of larceny alone. People v. 
 Sligh, 48 Mich. 54. 
 
 2. Sweet's Law Diet. ; 4 BI. Com. 34. 
 
 Persons who are either'actually or con- 
 structively present at the commission of 
 an offence, aiding and abetting or coun- 
 selling, and procuring the same to be 
 done, are principals in the second degree. 
 The aider and atjettor of high treason is 
 a principal in the first degree; the aider 
 and abettor of a misdemeanor is also a 
 principal in the first degree, but for a 
 very different reason, namely, the maxim 
 de minimis no curat lex (the law does 
 not concern itself about trifles). Conse- 
 quently aiders and abettors that are prin- 
 cipals in the second degree are only 
 found in the case of felonies, whether at 
 common law or under any statute. The 
 aider and abettor must participate in the 
 felony, in the sense of acting in concert 
 with those committing it; for although 
 
Alder — Abettor, 
 
 ACCESSOR Y. 
 
 Trespass. 
 
 Presence and participation are necessary to constitute a person 
 an abettor.^ But the mere fact of presence or failure to interfere 
 to prevent the commission of a crime does not alone constitute 
 the person a joint criminal with the active party, or cast on him 
 the burden of proving his innocence.* He must do or say some- 
 
 he is present, yet if he does not partici- 
 pate, but remains passive, he is not an 
 abettor. Moreover, the participation 
 must be with a felonious intent, and not 
 in ignorance of the nature of the act. 
 Brown's Law Diet. (Sprague's ed.); Sharp 
 V. State, 6 Tex. App. 650; State v. Kirlc, 
 10 Oregon 505; State v, Ellis, 12 La. 
 Ann. 390; State v. McGregor, 41 N. H. 
 407; White V. People, 81 111. 333; Bren- 
 nan v. People, 15 111. 511; Stevens v. 
 People, 67 111. 587; Connaughty f. State, 
 I Wis. i6g; U. S. v. Gooding, 12 Wheat. 
 (U. S.) 460; State V. Comstock, 46 Iowa, 
 265; Williams v. State, 20 Miss. 58; 
 Raiford v. State, 59 Ala. 106; King v. 
 State, 21 Ga. 220; Hately v. State, 15 
 Ga. 346; Clem v. State, 33 Ind. 418; 
 Doan V. State, 26 Ind. 495; People v. 
 Erwin,4 Denio (N. Y.), 129; Lowenstein 
 V. People. 54 Barb. (N. Y.) 299. 
 
 In misdemeanors, aiders and abettors 
 are principals, and may be so charged in 
 the indictment. U. S. v, Gooding, 12 
 Wheat. (U. S.) 460; Com. v. Macomber, 
 3 Mass. 254; Com. v. Barlow, 4 Mass. 
 439; Brown v. Perl^ins, i Allen (Mass.), 
 '8g; Stevens v. People, 67 III. 587; Peo- 
 ple V. Erwin, 4 Denio (N. Y.), 129; 
 Lowenstein v. People, 54 Barb. (N. Y.) 
 299; Dunman v. State, i Tex. App. 593. 
 
 Where an attachment is wrongfully 
 levied by a constable upon property 
 which is exempt from attachment, and 
 the property is sold by virtue of the at- 
 tachment proceedings at the instance and 
 by the direction of D, who is not a party 
 to the suit, held, that D is responsible to 
 the owner of the property for the value 
 thereof; that any person who aids, abets, 
 or assists in the commission of a wrong- 
 ful act is equally liable with the principal ; 
 and any person who causes a wrong to be 
 done is himself responsible for the wrong, 
 even though the wrong may be accom- 
 plished or effected through the action of 
 an innocent person. Fish v. Street, 27 
 Kan. 270. 
 
 A statute which provides that " every 
 person who shall assist, abet, counsel, 
 cause, hire, or command another to com- 
 mit any offence may be prosecuted and 
 punished as if he were the principal of- 
 fender " does not apply to the case of the 
 purchaser of liquor sold contrary to law. 
 State V. Teahan, 50 Conn. 92. See 
 Harrington v. State, 36 Ala. 236; Peo- 
 
 ple V. Smith, 28 Hun (N.. Y.), 626, af- 
 firmed 92 N. Y. 665. 
 
 If there is a connection between the in- 
 stigation and the committal of the of- 
 fence, it is immaterial how long a period 
 of time elapses. Com. v. Glover, iii 
 Mass. 395. 
 
 Trespass. — Any person who is present 
 at the commission of a trespass, encour- 
 aging or inciting the same by words, ges- 
 tures, looks, or signs, or who in any 
 way, or by any means, countenances or 
 approves the same, is, in law, deemed to 
 be an aider and abettor, and liable as a 
 principal. Cooper v. Johnson, 81 Mo. 
 483; Com. V. Hurley, 99 Mass. 433; Peo- 
 ple V. Hodges, 27. Cal. 340. 
 
 1, He must be present, and aiding and 
 abetting; but if he assented to the crime 
 and was in a situation where he might 
 render some aid, he would be present and 
 aiding in the commission of the crime. 
 Com. v. Knapp, 9 Pick. (Mass.) 496; s. c, 
 20 Am. Dec. 491; Connaughty v. State, 
 I Wis. 169. 
 
 If one sees another hiding stolen prop- 
 erty, and refuses to give information to 
 officers searching for it, he is an aider 
 and abettor. State v. St. Clair, 17 Iowa, 
 149. See State v. Turner, 19 Iowa 144; 
 Kelly V. Commonwealth, i Grant (Pa.), 
 484; Brown v. State, 28 Ga. igg; Straw- 
 hern V. State, 37 Miss. 422. 
 
 2. People V. Ah- Ping, 27 Cal. 489; 
 People V. Woodward, 45 Cal. 293; s. c, 
 13 Am. Rep. 176; Connaughty v. State, 
 I Wis. 169; Kemp v. Commonwealth, 80 
 Va. 443; Lowery v. State, 72 Ga. 649; 
 Butler J/. Commonwealth. 2 Duvall (Ky.), 
 435; ,Plummer v. Commonwealth, I 
 Bush (Ky.), 76; Smith v. State. 37 Ark. 
 274; State V. Maloy, 44 Iowa. 104; Brown 
 V. Perkins, I Allen (Mass.), 89, Fost. 350. 
 
 In State v. Hildrelh. 9 Ired. (N. Car.) 
 440; s. c, 51 Am. Dec. 369, the court 
 said: "For one who is present and sees 
 that a felony is about being committed 
 and does in no manner interfere does 
 not thereby participate in the felony com- 
 mitted." United States v. Jones, 3 
 Wash. (U. S.) 209. 
 
 Where a reasonable doubt exists as to 
 a person's intention in interfering in a 
 struggle between two other persons, he 
 cannot be held to aid and abet. Guil- 
 ford V. State, 24 Ga. 315. 
 
 Mere presence without endeavoring to 
 
 63 
 
Aider — Abettor. 
 
 ACCESSORY. 
 
 Presence — Intent. 
 
 thing showing consent to the felonious purpose, and ittust contri- 
 bute to its execution.* The advice or encouragement may be by 
 words, acts, signs, or motions ; * and may be given by one in- 
 competent to commit the offence as principal, by reason of not 
 being of the particular sex, age, condition, or class.* Actual 
 presence is not essential ; it may be constructive.* 
 
 3. Intent. — When the existence of a particular intent forms part 
 of the definition of an offence, a person charged with aiding and 
 abetting the commission of the offence must be shown to have 
 known of the existence of the intent on the part of the person 
 so aided. ^ 
 
 prevent the commission of a trespass will 
 not render a person liable as a participa- 
 tor, but any encouragement or aid given, 
 or any concert of action or aid thereto, 
 will render such one liable as principal. 
 Hilmes v. Stroebel, 59 Wis. 74. 
 
 A witness who testifies on trial for 
 burning a jail that accused invited him 
 to go down and see him "upset the jail," 
 and he did go down and see him wre,nch 
 off the lock from the door of the jail and 
 enter it, and that the accused afterwards 
 confessed to him that he had burned the 
 jail, is not generally by such testimony 
 deemed to be an accomplice. State v. 
 Reader, 60 Iowa, 527. 
 
 1. State V. Hildreth, 9 Ired. (N. Car.) 
 440 ; s. c, 51 Am. Dec. 369; White v. 
 People, 81 111. 333. Where two per- 
 sons are present at the time of a homi- 
 cide, and but one commits the crime, 
 and the other does not aid, abet, or 
 assist, but afterwards they both, with 
 guilty knowledge, conceal the fact of the 
 crime, the one not participating in the 
 crime is only guilty as an accessory 
 after the fact, and is not guilty of mur- 
 der. 
 
 2. Brown v. Perkins, i Allen (Mass.), 
 89 ; McMannus v. Lee, 43 Mo. 206 ; 
 Brennan v. People. 15 111 511 ; Kennedy 
 V. People, 40 III. 488 ; R. v. Bingley, 
 Russ. & R. C. C. 446; K.v. Kelly, lb. 421. 
 
 3. An unmarried man who is present 
 and aids a friend in committing bigamy is 
 guilty as principal in the second degree. 
 Boggus V. State, 34 Ga. 275. 
 
 A woman aiding and abetting an at- 
 tempt to commit a rape is guilty, as prin- 
 cipal. State V. Jones, 83 N. Car. 605 ; s. 
 c, 35 Am. Rep. 586 ; States. Comstock, 
 46 Iowa, 265. 
 
 Aiders and abettors in statutory of- 
 fences are punishable as principals, under 
 the statute, although not expressly refer- 
 red to in the statute, as in the case of one 
 who aided a postmaster to make a false 
 return to the auditor for the purpose of 
 fraudulently increasing his compensation . 
 
 U. S. V. Snyder, 14 Fed. Repr. 554. 
 Compare Stamper v. Commonwealth. 7 
 Bush (Ky), 612; Bland v. Common- 
 wealth, ID Bush (Ky.), 622. 
 
 Although a wife was the real owner of 
 a store, yet if her husband controlled 
 and managed it, and spirituous liquors 
 were sold therein without a license, he 
 would be guilty of that offence; nor 
 would it be material that the liquor was 
 sold by a clerk in the store, if. the hus- 
 band were present at the lime, control- 
 ling and managing it. Faircloth v. State, 
 73 Ga 426. 
 
 4. Illustration: A, B. C, and D go out 
 with a common design to rob. A com- 
 mits the robbery ; B stands by ready to 
 help ; C is stationed some way oS., to Rive 
 the alarm if any one comes. A is prin- 
 cipal in the first degree ; B. C, and D 
 are principals in the second degree. 
 Stephens Dig. Cr. L., Am. ed. 126. 
 
 State V. Hamilton, 13 Nev. 386, where 
 by arrangement L built a fire on the top 
 of a mountain in Eureka Co. as a signal 
 to his confederates in Nye Co. of the 
 approach of a stage with treasure which 
 it was proposed to rob. 
 
 Presence may be constructive. McCar- 
 ney v. People, 83 N. Y. 409 State v. 
 Heyward, 2 N. & McC. (S Car.) 312; 
 s. c. 10 Am. Dec, 604 ; Ruloff k. People, 
 45 N. y. 213 ; Selvidge v. State, 30 Tex. 
 60 ; Breese v. State, 12 Ohio St. 146 ; 
 State V. Nash, 7 Iowa. 347 ; Com. v. Lu- 
 cas. 2 Allen (Mass.), 170 ; Doan v. State, 
 26 Ind. 495 ; R. v. Kelly Russ. & R. C. C. 
 421. This case Mr. Stephens says (Dig. 
 Cr. Law, Am. ed. 26, n.) " perhaps marks 
 the line between a principal in the second 
 degree and an accessory. B stole horses 
 and brought them to A, who was waiting 
 half a mile ofif ; A and B then rode away 
 on them. It was held that A was an 
 accessory before the fact. The disiinc- 
 tion is now of no importance." State v. 
 Fley, 2 Brev. (S. Car.) 338; s. c, 4 Am. 
 Dec. 583, 
 
 5. B is indicted for inflicting on C an 
 
 64 
 
Jtndictment. 
 
 ACCESSORY. 
 
 Innocent Agent, 
 
 4. Indictment. — If those who aid and abet the commission of a 
 •crime are required by statute to be indicted as principals, the in- 
 dictment must be the same as though they were principals.* An 
 indictment need not allege, when the prisoner is charged as acces- 
 sory, the conviction of the principal.^ Acquittal as principal in a 
 murder is no bar to an indictment as accessory. ^ Aiders and 
 •abettors may be indicted or tried as principals in cases of murder.* 
 
 5. Persons seeking to discover Crime. — A person who enters into 
 •communication with criminals and assists them, without any 
 ■criminal intent, but solely for the purpose of discovery and mak- 
 ing known their crimes, is not an accomplice.^ 
 
 6. Innocent Agent. — Whoever commits a crime by an innocent 
 agent is a principal, but the agent is excused.* 
 
 injury dangerous to life, with intent to 
 murder. A is indicted for aiding and 
 abetting B. A must be shown to have 
 known that it was B's intent to murder 
 'C ; and it is not enough to show that A 
 helped B in what he did. Stephens Dig. 
 •Cr. L., Am. ed. 26. If B and C have had 
 <» quarrel with A, and A approaches B 
 .and C, and B commands him to halt or 
 lie will shoot him, and C then shoots A, 
 the circumstances do not necessarily 
 import a common criminal intent be- 
 tween B and C to kill A, so as to make 
 B guilty. People v. Leith, 52 Cal. 251 ; 
 Savage v. State, 18 Fla. gog. 
 
 1. State V. Hessian. 58 Iowa, 68 ; State 
 V. Fley, 2 Brev. (S. Car.) 338 ; ,. c, 4 
 Am. Dec. 583. The court held i is not 
 ■material which of several is charged as 
 principal in the first degree, for the 
 Tnortal injury done by any one of the 
 persons is the act of each and every 
 •one of them. State v. Kirk, 10 Oregon, 
 
 505. Held, one present, aiding and 
 abetting in the commission of a felony, 
 may be convicted on an indictment charg- 
 •ing him directly with committing the 
 •crime. 
 
 2. State V. Crank, 2 Bailey (S. Car.). 65; 
 s. c, 23 Am. Dec. 117. An abettor in 
 a crime may be guilty of murder, though 
 his principal may be guilty of man- 
 slaughter or even legally innocent. See 
 People V. Bearss. 10 Cal. 68 ; People v. 
 Newberry, 20 Cal. 439 ; Hatchett v. 
 ■Commonwealth, 75 Va. 925. 
 
 3. State V. Buzzell, 58 N. H. 257 ; s. c, 
 42 Am. Rep. 586. 
 
 4. State V. Ross, 2g Mo. 32; Common- 
 wealth v. Chapman, 11 Cush. (Mass.) 
 422 ; Freel v. State. 21 Ark. 212 ; State 
 ■V. Putnam, 18 S. Car. 175; s. c, 44 Am. 
 Rep. 56g. 
 
 5. Where a person buys liquor sold in 
 violation of the excise law. Com. v. 
 Downing, 4 Gray (Mass.), 29; Com. v. 
 
 I C. of L.— 5 e 
 
 Willard, 22 Pick. (Mass.) 476; People v. 
 Smith, 28 Hun (N. Y.), 626; affirmed. 94 
 N. Y. 649; Harrington v. State, 36 Ala. 
 236. 
 
 Where a person united with others to 
 steal horses, in order to detect the 
 thieves. State v. McKean, 36 Iowa, 
 343; s. c, 14 Am. Rep. 530. 
 
 Where a detective joined criminal or- 
 ganization for the purpose of discovering 
 and punishing the crime of murder. 
 Campbell V. Commonwealth, 84 Pa. St. 
 187. 
 
 6. If A tells B, a child under seven, to 
 bring him money belonging to C, and B 
 does so. A is a principal. R. v. Manley, 
 I Cox C. C. 104. Or gives a counterfeit 
 bill to a. boy, ignorant of its nature, to 
 have it changed. Com. v. Hill, 11 Cush. 
 (Mass.) I36. Or makes an innocent party 
 the custodian of stolen goods. People 
 V. McMurray, 4 Park. Cr. (N. Y.) 234. 
 Or induces a boy to commit arson. 
 People V. Katz, 23 How. Pr. (N. Y.) 93. 
 If a person incites an insane person or a 
 child or other Innocent agent to commit 
 a crime, he is liable as principal. Cora. 
 V. McLoon, loi Mass. i; Com. w. White, 
 123 Mass. 116; s. c, see 25 Am. Rep. . 
 116; People -v. Adams, 3 Den. (N. Y.) 
 igo; s. c. 45 Am. Dec. 470; U. S. v. 
 Ross, I Gall. (U. S.) 624; State v. 
 Lucas, 55 Iowa, 321; State v. Sim- 
 mons, 6 Jones L. (N. Car) 21; Peden 
 V. State, 61 Miss. 267; State v. Al- 
 len, 47 Conn. 121; People v. Knapp, 
 26 Mich. 112; Mitchell v. Common- 
 wealth, 33 Gratt. (Va.) 845; Berry v. 
 State, 4 Tex. App. 492; Taylor v. State. 
 9 Tex. App. 100; State v. Putnam, l8 
 S. Car. 175; s. c , 44 Am. Rep. 569; 
 People V. Woodward, 45 Cal. 293; s. c, ^ 
 13 Am. Rep. i76;.People v. Brown. 59 
 Cal. 345: Hamilton v. People, 113 111. 
 34; Lamb z/. People. 96 111. 73; Brennan 
 V. People, 15 111. 516; Williams v. State, 
 
Common Purpose. 
 
 ACCESSORY. 
 
 Common Purpose. 
 
 7. Common Purpose. — When several persons take part in the ex- 
 ecution of a common criminal purpose, each is a principal, in re- 
 spect of every crime committed by any one of them in the execu- 
 tion of that common purpose ; but if any of the offenders commits 
 a crime foreign to the common criminal purpose, the others are 
 neither principals nor accessories unless they actually instigate or 
 assist in its commission.^ 
 
 47 Ind. 568; Com. v. Knapp, 9 Pick. 
 (Mass.) 4g6; Norton v. People, 8 Cow. 
 (N. Y.) 37; Rulofif V. People, 45 N. Y. 
 213; I Bishop Cr. L. § 636; i Russ. on 
 Crimes; 2 Wharton's Cr. Law, § 998. 
 
 1. A constable and his assistants go to 
 arrest A at a house in which are many 
 persons. B, C, and D, and others come 
 from the house, drive the constable and 
 his assistants off, and one of the assist- 
 ants is killed, either by B, C, D, or one 
 of their party. Each of the party is 
 equally responsible for the blow, whether 
 he actually struck it or not. Stephen's 
 Dig. Cr. L. (Am. Ed.) 27. 
 
 Three soldiers go to rob an orchard. 
 Two get into a fruit-tree; the third stands 
 at the door with a drawn sword, and 
 stabs the owner, who tries to arrest him. 
 ' The men in the tree are neither princi- 
 pals nor accessories, unless all three 
 came with a common resolution to over- 
 come all opposition. Stephen's Dig. Cr. 
 L.' (Am. Ed.) 27. 
 
 Two parties of persons fight in the 
 street about the retiioval of goods to 
 avoid a distress. One of the persons 
 engaged kills a looker-on totally uncon- 
 cerned in the affray. The other persons 
 presept are not responsible for his crime. 
 Stephen's Dig. Cr. L. (Am. Ed.) 27. 
 
 Two persons go out to commit theft. 
 One, pnknown to the other-, puts a pistol 
 in his pocket, and shoots a man with it. 
 The other person is not responsible for 
 the shot. Stephen's Dig. Cr. L. (Am. 
 Ed.) 27. 
 
 Two private watchmen, seeing the 
 prisoner and another person with two 
 carts laden with apples, went up to them, 
 intending as soon as they could get as- 
 sistance to secure them; one of the 
 watchmen walked beside the prisoner, 
 and the other watchman beside the other 
 person, at some distance from the pris- 
 oner. The other person wounded the 
 watchman who was near him. Held, that 
 the prisoner could not be convicted of 
 his wounding, unless the jury should be 
 satisfied that the prisoner anjl the other 
 person had not only gone out with a 
 common purpose of stealing apples, but 
 also had the common purpose of resist- 
 'ing with extreme violence any person 
 
 who might attempt to apprehend them. 
 R. u. CoUison, 4 C. & P. 565. Compare 
 Frank v. State, 27 Ala. 37; Thompson v. 
 State, 25 Ala. 41; Com. v. Campbell, 7 
 Allen (Mass.), 541; People v. Knapp, 26 
 Mich. 112; Watts v. State, 5 W. Va. 532. 
 
 If several conspire to beat A, but not 
 to kill him,' and, after tying him for the 
 purpose of beating him, one of the con- 
 spirators abandons the enterprise i.nA 
 goes away, and the others kill A, the one 
 who so went away cannot be convicted 
 of murder. Harris u. State, 15 Tex. 
 App. 629; see State u. Allen, 47 Conn, 
 121. 
 
 If several persons agree togetlier to 
 rob another, and for that purpose arm 
 themselves with deadly weapons, and 
 meet at the house of the person to be 
 robbed, and to carry out their unlawful 
 design one is left outside, ready to aid! 
 and assist, while, the others enter and 
 commit the crime agreed on, all are guilty- 
 of the robbery as principals. So, if those 
 inside the house, while attempting to 
 consummate the robbery, and in fur- 
 therance of such conspiracy, purposely 
 kill the person they are attempting to 
 rob, while he is resisting such attempt, 
 and such killing is the natural and prob- 
 able consequence of the common pur- 
 pose, the person outside who is aiding 
 and assisting is equally guilty as the one 
 striking the fatal blow, though he did 
 not, previous to such attempt, agree to or 
 assent to such killing. Stephens v. State; 
 42 Ohio St. 150. 
 
 In April, 1882, W became the purch- 
 aser, upon conditions, of the right to 
 operate a. certain gas-well. He moved 
 upon the premises and commenced oper- 
 ations preparatory to conducting the gas 
 to practical use. In June, 1883, other 
 parties made a contract with the persons 
 from whom W had obtained the prop- 
 erty, for the purchase of the same 
 interest that had been conveyed to W. 
 They thereupon entered upon the prop- 
 erty whereon the well was situated 
 and expelled W. In the struggle be- 
 tween the rival claimants H was killed 
 by B, who was in the employ of W. 
 W was indicted, found guilty cf man- 
 slaughter, and sentenced to be im 
 
 60 
 
Before the Fact. 
 
 ACCESSORY. 
 
 Before the Fact. 
 
 8. Before the Fact. — An accessory before the fact is one who 
 directly or indirectly counsels, procures, or commands any person 
 to commit any crime which is committed in consequence of such 
 counselling, procuring, or commandment.^ Such accessory before 
 the fact may be by statute indicted and tried as a principal.* 
 
 prisoned. Held, that the conviction was 
 sustained by the evidence; that one who 
 is present, with others, aiding or abetting 
 in a common purpose, is responsible for 
 the act of one of the party which results 
 in the killing of a person, providing the 
 killing was in pursuance of or an inci- 
 dental probable consequence of such 
 purpose. The intent to hold possession 
 of property by a show of arms, for in- 
 timidation only, is unlawful and draws 
 to itself the consequences of acts done in 
 carrying it into execution. Weston v. 
 Com., Ill Pa. St. 251. 
 
 If several are associated together to 
 commit a robbery, and one of them, 
 while all are engaged in the common 
 design, intentionally kills the person 
 they are attempting to rob, in furtherance 
 of the common purpose, all are equally 
 guilty, though the others had not previ- 
 ously consented to the killing, where 
 such killing was done in the execution of 
 the common purpose, and was a natural 
 and probable result of the attempt to rob. 
 People V. Vasquez. 49 Cal. 560; People 
 V. Pool, 27 Cal. 572; State v. Shelledy, 8 
 Iowa. 477; U. S. V. Ross, I Gall. (U. S.) 
 624; Slate V. Nash, 7 Iowa, 347; Stipp v. 
 State, n Ind. 62; Stephens v. Srate, 42 
 Ohio St. 150; Breese zi. State, 12 Ohio St. 
 146; Miller v. State, 25 Wis. 384; Carr 
 V. State, 43 Ark. 99; Williams v. State, 9 
 Mo. 270; State w.- Davis, 29 Mo. 391. 
 
 1. 4 Bl. Com. c. 3. 
 
 An accessory before the fact is defined 
 by Lord Hale to be one who, being ab- 
 sent at the time of the offence com- 
 mitted, does yet procure, counsel, 
 command, or abet another to commit a 
 felony. I Hale P. C. 615. The bare 
 concealment of a felony to be committed 
 will not make the party concealing it an 
 accessory before the fact. 2 Hawk. c. 29, 
 s. 23. So words amounting to a bare 
 permission will not render a man an 
 accessory; as, if A says he will kill J. S., 
 and B says, "you may do your pleasure 
 for me." Hawk. P. C. b. 2, c. 29, s. 16. 
 The procurement must be continuing; 
 for if before the commission of the 
 offence by the principal, the accessory 
 countermands him, and yet the principal 
 proceeds to the commission of the 
 offence, he who commanded him will 
 not be guilty as accessory. i Hale 
 P. C. 618. 
 
 If B procures C to commit a robbery, 
 and C kills A to conceal the robbery, B 
 is guilty as accessory before the fact to 
 the murder. State v. Davis, 87 N. Car. 
 514. See Washington v. State, 68 Ga. 570; 
 Stratton v. State, 45 Ind. 468; Clem v. 
 State, 33 Ind. 418 ; Goff v. Prime, 26 Ind. 
 ig6; Baker v. State, 12 Ohio St. 214; 
 Jones V. State, 13 Tex.. 168; State v. 
 Mann, i Hayw. (N. Cat.) 4; People v. 
 Shepardson, 48 Cal. 189; People v. 
 Hodges, 27 Cal. 340; Norton v. People, 
 8 Cow. (N. Y.) 137; People v. McMurray, 
 4 Park Cr. (N^ Y.) 234; People v. Knapp, 
 26 Mich. 112; Keither v. State, 10 Smedes 
 & M. (Miss.) 191. 
 
 A person may render himself an acces- 
 sory by the intervention of a third per- 
 son, without any direct communication 
 between himself and the principal. Thus 
 if A bids his servant to hire somebody to 
 murder B, and furnishes him with money 
 for that purpose, and the servant hires 
 C, a person whom A never saw or heard 
 of, who commits the murder, A is an 
 accessory before the fact. Fost. 121 ; 
 R. V. Macdaniel, i Lea, 44; Hawk. P. C. 
 b. 2, c. 29, ss. I, 11; I Russ. Cri. 
 (5th ed.) 166; R. V. Cooper, 5 C. & P. 
 535- 
 
 2. Noland v. State, 18 Ohio, 131; 
 Brown V. State, 18 Ohio St. 496; Levy v. 
 People, 80 N. Y. 327; State v. Cassady, 
 12 Kan. 550; Ulmer v. State, 14 Ind. 52; 
 Stipp V. State, 11 Ind. 62; Com. v. 
 Hughes, II Phila. (Pa.) 430; Mitchell v. 
 Commonwealth, 33 Gralt. (Va.) 845 ; Peo- 
 ple v. Davidson, 5 Cal. 133; People v. 
 Bearss, 10 Cal. 68. 
 
 At common law the instigator was 
 regarded as an accessory before the fact 
 in felonies, and must be indicted and 
 tried as such. In cases of misdemeanor, 
 however, all were principals. People v. 
 Lyon, 99 N. Y. 210; McCarney v. People. 
 83 N. Y. 409; Irvine v. Wood, 51 N. Y. 
 224; Wixson V. People, 5 Park. Cr. (N.Y.) 
 121; Able V. Commonwealth, 5 Bush 
 (Ky.), 698; Tully v. Commonwealth, 11 
 Bush (Ky.). 154; English v. State, 35 
 Ala. 4?8; Bieber a State, 45 Ga. 570; 
 Parsons v. State, 43 Ga. 197; U. S. v. 
 White, 5 Cranch C. C. 38. 
 
 All distinction between principal and 
 accessory before the fact has been abol- 
 ished in Missouri. State v. Fredericks, 
 85 Mo. 145. 
 
 67 
 
Knowledge. 
 
 ACCESSORY. 
 
 Degree of Incitement. 
 
 9. Knowledge that a person intends to commit a crime, and con- 
 duct connected with, and influenced by, such knowledge; is not 
 enough to make the person who possesses such knowledge, or so 
 conducts himself, an accessory before the fact to any such crime, 
 unless he does something to encourage its commission actively.^ 
 
 One who advises or encourages the 
 commission of a felony, but is not actu- 
 ally or constructively present when it is 
 committed, cannot be convicted under an 
 indictment charging him as principal in 
 the crime. Smith v. State, 37 Ark. 274. 
 
 Upon the trial of an indictment for 
 larceny it did not appear that the pris- 
 oner was present at tlie warehouse from 
 which the prope'rty was taken, or in its 
 close vicinity, but there was proof upon 
 the trial tending to show that he had 
 part in planning the theft and in learning 
 rhe situation of the premises and the 
 ways of the keeper thereof; that the 
 one who was in fact engaged in taking 
 the property sent the porter of the ware- 
 house to the house of the keeper with a 
 letter, and promised a reward, upon his 
 trailing, after the delivery of it. at a speci- 
 fied street and number; and that on 
 Teaching the street, while searching for 
 the number, he met the prisoner and con- 
 versed with him about the keeper and his 
 ■whereabouts. Held, that the testimony 
 was sufficient to authorize the submission 
 of the question of the prisoner's partici- 
 pation as principal in the theft to the 
 jury. McCarneyw. People, 83 N.y. 408. 
 
 Degree of Incitement. — Upon the sub- 
 ject of the degree of incitement and the 
 force of persuasion used no rule is laid 
 down. That it was sufficient to effectuate 
 the evil purpose is proved by the result. 
 On principle it seems that any degree of 
 direct incitement with the actual intent 
 to procure the consummation of the ille- 
 gal object is sufficient to constitute the 
 guilt of the accessory; and therefore that 
 it is unnecessary to show that the crime 
 was effected in consequence of such in- 
 citement, and that it would be no defence 
 to show that the offence would have been 
 committed although the incitement had 
 never taken place. 2 Stark. Ev. 9, 3d ed. 
 Where a man furnished a woman with 
 corrosive subhmate at her request, which 
 she took with intent to procure abortion, 
 but he did not instigate her to take it, 
 and his conduct was consistent with his 
 having hoped that she would change her 
 mind, it was held that he was not an ac- 
 cessory before the fact. R. v. Fretwell, 
 I L. & C. 161; 31 L. J. M. C. 145. So a 
 mere holder of stakes for a prize-fight 
 who is not present, but who afterwards 
 paid over the stakes to the \Vinner, was 
 
 held not an accessory after the fact to the 
 manslaughter of the man who was killed 
 in the fight. R. v. Taylor, L. R. 2 C. C. 
 14B; 44 L. J. M. C. 67. 
 
 1. A supplies B with corrosive subli- 
 mate, knowing B means to use it to pro- 
 cure her own abortion, but being unwill- 
 ing that she should take the poison, and 
 giving it to her because she threatened to 
 kill herself if he did not. B does so, use 
 it, and dies. Even if B is guilty of mur- 
 dering herself, A is not an accessory 
 before the fact to such murder. R. v. 
 Fretwell, Leigh. & C. 161. Contrast 
 with this R. v. Russell, i Moody, 356. 
 
 B and C agree to fight a prize-fight for 
 a sum of money. A, knowing their in- 
 tention, acts as stakeholder. B and C 
 fight, and C is killed. A is not present 
 at the fight, and has no concern with it 
 except as stakeholder. Even if in such 
 a case there can be an accessory before 
 the fact, A is not accessory before the 
 fact to the manslaughter of C. R. v. 
 Taylor, L. R. 2 C. C. R. 147. 
 
 L swore that M, himself, and several 
 others were members of a secret organi- 
 zation, called " Ku-Klux"; that this band 
 was bound by oath to keep secret the do- 
 ings and works of their order; that they 
 had officers, of whom M was the captain; 
 that H rendered' himself obnoxious to 
 the order by talking about them, and that 
 at one of their regular monthly meetings 
 it was determined that he must be 
 whipped; that accordingly a party of 
 masked men, among whom were M and 
 L, went to H's house at night, took 
 him out and flogged him. L was present 
 and saw the whipping administered, but 
 did not actively participate in it. About 
 a week after tills, the society held a 
 called meeting to take some further steps 
 concerning H, as he continued to talk 
 about them. M, L, and others were 
 present. After discussion it was re- 
 solved that H should be put to death. 
 L said he opposed this resolution and 
 never did assent to it. M and one R 
 volunteered to do the act. In the course 
 of the following week M and R came to 
 witness's house and after night picked up 
 their guns and left, telling the wife of 
 witness to set the clock back, as they 
 were going to kill H. but returned after 
 a while and slated that the night was too 
 dark to accomplish their purpose. Some 
 C8 
 
Instigation, 
 
 ACCESSORY. 
 
 Instigation. 
 
 10. Where the Crime suggested is committed in a Different Way. — 
 
 When a person instigates another to commit a crime, and the per- 
 son so instigated commits the crime, but in a different way from 
 that in which he was instigated to commit it, the instigator is an 
 accessory before the fact to the crime. ^ 
 
 11. Where Crime committed is Probable Consequence of Crime sug- 
 gested. — If a person instigates another to commit a crime, and the 
 person so instigated commits a crime different from the one which 
 he was instigated to commit, but likely to be caused by such in- 
 stigation, the instigator is an accessory before the fact.** 
 
 12. Where Instigation is countermanded. — If an accessory before 
 the fact countermands the execution of the crime before it is exe- 
 cuted, he ceases to be an accessory before the fact, if the principal 
 had notice of the countermand before the execution of the crime^ 
 but not otherwise.^ 
 
 13. Instigation to commit a Crime different from the one committed. — 
 When a person instigates another to commit a crime, and the per- 
 son so instigated commits a different crime, the instigator is not 
 accessory before the fact to the crime so committed, unless such 
 crime was committed with his assent or is a probable consequence 
 of the instigation.* 
 
 time after that H was killed, and M soon 
 afterwards confessed to witness that he 
 and R had done it, and described how 
 they had done the act. L had kept the 
 secret until about one one year before 
 the trial, when he divulged it. His rea- 
 son was that he was afraid of personal 
 violence at the hands of the band. He 
 had been examined as a witness before 
 the coroner's jury that held the inquest 
 over H's dead body, and also before a 
 grand jury, and had denied any knowl- 
 edge of the authors of the crime. Held, 
 that L was not an accomplice. Melton 
 V. State, 43 Ark. 367. 
 
 If one knows that a crime is contem- 
 plated and absents himself in order to 
 facilitate its commission, he is guilty as 
 principal. Stat6 v. Poynier, 36 La. Ann. 
 572. 
 
 1. A advises B to murder C by shoot- 
 ing; B murders C by stabbing; A is ac- 
 cessory before the fact to the murder of 
 C. Stephen's Dig. Cr. L. (Am. Ed.) 29. 
 See Watt v. State, 5 W. Va. 532. 
 
 2. A describes C to B, and instigates 
 B to murder C. B murders D, whom he 
 believes to be C, because D corresponds 
 with A's description of C. A is accessory 
 before the fact to the murder of D. 
 Foster Cr. Cas. 370. 
 
 A instigates B to rob C; B does so; C 
 resists, and B kills C. A is accessory 
 before the fact to the murder of C. • lb. 
 
 A advises B to murder C (B's wife) by 
 poison. B gives C a poisoned apple. 
 
 which C gives to D (B's child). B per- 
 mits D to eat the apple, which it does, 
 and dies of it. A is not accessory to 
 murder of D. Saunders' Case. Plowd. 
 475; Hale Pleas. Cr. 431. See note, 
 Stephen's Dig. Cr. L. (Am. Ed.) 29. 
 
 3. A advises B to murder C, and after- 
 wards by letter withdraws his advice. B 
 does murder C. A is not an accessory 
 before the fact if his letter reaches B 
 before he murders C; but he is if it ar- 
 rives afterwards, i Hale Pleas. Cr. 618. 
 
 4. If the principal totally and substan- 
 tially vary from the terms of the instiga- 
 tion — if.being solicited to commit a felony 
 of one kind, he willingly and knowingly 
 commit a felony of another, he will stand 
 single in that offence, and the person 
 soliciting will not be involved in his 
 guilt. Thus if A command B to burn 
 C's house, and he in so doing commits a 
 robbery; now A, though accessory to 
 the burning, is not accessory to the rob- 
 bery, for that is a thing of a distinct and 
 inconsequential nature. And if A coun- 
 sels B to steal goods of C on the road, 
 and B breaks into C's house and steals 
 there, A is not accessory to the breaking 
 the house, because that is a. felony of 
 another kind. He is. however, accessory 
 to the stealing. But if the principal 
 complies in substance with the instiga- 
 tion of the accessory, varying only in 
 circumstances of time or place, or in the 
 manner of execution, the accessory will 
 be involved in his guilt; as if A commands 
 
 69 
 
InBtigation. 
 
 ACCESSORY. 
 
 Constructive Presence. 
 
 14. Constructive Presence. — A crime is deemed to be committed 
 and punishable in one State (New York) when a person, though 
 situate in another State (Ohio) and there originating and concoct- 
 
 B to murder C by poison and b does it 
 by a sword or other weapon, or by any 
 other means, A is accessory to this mur- 
 der; for the murder of C was the object 
 principally in contemplation, and that is 
 effected; and it seems that if A counsels 
 B to steal goods in C's house, but not to 
 break into it, and B does break into it, 
 A is accessory to the breaking. And 
 where the principal goes beyond the 
 term of the solicitation, yet, if in the 
 eventthe felony committed was a prob- 
 able consequence of what was ordered or 
 advised, the person giving such orders or 
 advice will be an accessory to the felony. 
 As, if A advised B to rob C, and in rob- 
 bing him B kills him, either upon resist- 
 tance made, or to conceal the fact, or. 
 upon any other motive operating at the 
 time of the robbery; or if A solicit B to 
 burn the house of C, and B does it ac- 
 cordingly, and the flames take hold of 
 the house of D, that likewise is burnt. 
 In these cases A is accessory to B, both 
 in the murder of C and in the burning of 
 the house of D. Russell on Crimes (gth 
 Am. Ed.), 62. 
 
 Where the principal wilfully cornmits 
 a different crime from that which he is 
 commanded or advised to commit, the 
 party counselling him will not be guilty 
 as accessory. But whether, where the 
 principal by mistake commits a different 
 crime, the party commanding or advising 
 him shall stand excused, has been the 
 subject of much discussion. It is said 
 by Lord Hale, that if A commands B to 
 kill C, ahd B by mistake kills D, or else 
 in striking at C kills D, but misses C, A 
 is not accessory to the murder of D, be- 
 cause it differs in the person, i Hale P. 
 C. 617, citing 3 Inst. 51; R. v. Saunders, 
 Plow. Com. 475. The circumstances 
 of Saunders's case, cited by Lord Hale, 
 were these: Saunders, with the intention 
 of destroying his wife, by the advice of 
 one Archer mixed poison in a roasted 
 apple, and gave it to her to eat, and the 
 wife having eaten a small part of it, and 
 given the remainder to their child. 
 Saunders making only a faint attempt to 
 save the child, whom he loved and would 
 not have destroyed, stood by and saw it 
 eat the poison, of which it soon after- 
 wards died. It was held that though 
 Saunders was clearly guilty of the mur- 
 der of the child, yet Archer was not ac- 
 cessory to the murder. 
 
 Upon the law as laid down by Lord 
 
 Hale, and upon R. v. Saunders. Mr. 
 Justice Foster has made the following 
 observations, and has suggested this 
 case : B is an utter stranger to the person 
 of C, and A therefore takes upon him- 
 self to describe him by his stature, dress, 
 etc., and acquaints B when and where 
 he may probably be met with. B is punc- 
 tually at the time and place, and D, a 
 person in the opinion of B answering the 
 description, unhappily coming by, is 
 murdered under a strong belief on the 
 part of B that he is the man marked out 
 for destruction. Who is answerable? 
 Undoubtedly A: the malice on his part 
 egreditur personam. The pit which he, 
 with a murderous intention, dug for C, 
 D fell into and perished. Through his 
 guilt, B, not knowing the person of C, 
 had no other guide to lead him to his 
 prey than the description of A, and in 
 following his guide he fell into a mistake, 
 which it is great odds any man in his 
 circumstances might have fallen into. 
 " I therefore," continues the learned 
 writer, "as at present advised, conceive 
 that A was answerable for the conse- 
 quences of the flagitious orders he gave, 
 since that consequence appears in the 
 ordinary course of things to have been 
 highly probable." Foster, 370. With 
 regard to Archer's case, the same learned 
 author observes that the judges did not 
 think it advisable to deliver him in the 
 ordinary course of justice by judgment 
 of acquittal, but for example's sake kept 
 him in prison by frequent reprieves from 
 session to session, till he had procured a 
 pardon from the crown. Ibid. 371. Mr. 
 Justice Foster then proposes the follow- 
 ing criteria, as explaining the grounds 
 upon which the several cases falling un- 
 der this head will be found to rest. Did 
 the principal commit the felony he 
 stands charged with, under the flagitious 
 advice, and was the event, in the ordi- 
 nary coufse of things, a probable conse- 
 quence of that felony? Or did he. fol- 
 lowing the suggestions of his own wicked 
 heart, wilfully and knowingly commit a 
 felony of another kind or upon a differ- 
 ent subject? Foster, 372. See also 
 Hawk. P. C. b. 2, c. 29, s. 22. Roscoe's 
 Cr. Ev. doth ed.) 184. 
 
 A instigates B to murder C: B mur- 
 ders D. A is not accessory before the 
 fact -to the murder of D. Foster Cr. 
 Cas. 369, s. i; State v. Lucas, 55 Iowa, 
 321; Watts V. State, 5 W. Va. 532. 
 
 70 
 
instigation. 
 
 ACCESSORY. 
 
 Before the Fact. 
 
 ing the crime, consummates it in the other State (New York) by 
 innocent agents there employed and acting under his authority.' 
 15. Accessories before the Fact as Principals. — At common law an 
 accessory before the fact could only be tried jointly with the prin- 
 •cipal, or after the conviction of the principal ;** but by statute in 
 
 lawful act of breaking the door; for this 
 reason, because they knew not of any 
 such intent, but it was a chance oppor- 
 tunity of stealing, whereupon some of 
 them did lay hands. Anon, i Leach, 7 
 («); I Russ. Cri. 162 (/),,5th ed. See 
 also R. V. White, R. & R. 59; R. v. Haw- 
 kins, 3 C. & P. 392. 
 
 Three men went out into a field to 
 shoot, and placed a target in a tree eight 
 feet from the ground. They lay down on 
 the ground, and each fired at it in turn. 
 Their rifles were sighted to shoot 950 
 yards, and would probably be deadly at 
 a mile. A boy in an apple-tree 393 
 yards off was killed by one of the shots; 
 but it was uncertain which of the prison- 
 ers had shot hini. They were all held to 
 be guilty of manslaughter. Reg. zi. Sal- 
 mon, L. R. 6 Q. B. 79; 50 L. J., M. C. 
 25. It is, perhaps, open to doubt that if 
 only one had fired his rifle all would 
 have been equally guilty. Lord Cole- 
 ridge, C.J., said, "the death resulted 
 fronf the action of the three," and 
 Stephen, J., said, "they unite to fire at 
 the spot in question." 
 
 See Com. v. Campbell, 7 Allen 
 (Mass.), 541; State z/. Stalcup, i I red. 
 (N. C^r.) 30; Watts v. State, 5 W. Va. 
 532; Manier v. State, 6 Baxt. (Tenn.) 
 595; Lamb v. People, 96 111. 73; Bren- 
 nan v. People, 15 111. 511; State v. 
 Lucas, 57 Iowa, 501; People z-. Knapp, 
 26 Mich. 112; Miller v. State, 15 Tex. 
 App. 125; Harris v. State, 15 Tex. App. 
 639- 
 
 1. People V. Adams, 3 Denio (N. Y.), 
 190; s. c, 45 Am. Dec. 468; Com. v. 
 White, 123 Mass. 430; s. c, 25 Am. Rep. 
 116; State V. Chapman. 6 Nev. 320. 
 
 3. 4 Black. Com. 40. See Stoops v. 
 Commonwealth, 7 Serg. & R. (Pa.) 491; 
 Holmes v. Commonwealth, 25 Pa. St. 
 221; Com. v. Knapp, 10 Pick. (Mass.) 
 477; People V. Lyon, 99 N. Y. 2:0; 
 Able V. Commonwealth, 5 Bush (Ky.), 
 698; TuUy V. Commonwealth, II Bush 
 (Ky.), 154; State v. Wyckoff, 2 Vroom 
 (N. J.), 65; Walrath v. State, 8 Neb. 80; 
 Hughes V. State, 12 Ala. 458; Josephine 
 V. State, 39 Miss. 613; Keech v. State,' 
 15 Fla. 591; McCarty v. State, 44 Ind. 
 214; s. c, 15 Am. Rep. 232; i Arch- 
 bald's Cr. P. & P. (Pomeroy's ed.) 68; 
 I Whart. Cr. L. § 208; Bish. Cr. L. § 
 666. 
 
 A and B joined in a rape. After A had 
 left the place, B, in attempting to escape, 
 killed the woman. A was not an acces- 
 ■sory to the homicide. People v. Knapp, 
 26 Mich. 112. 
 
 If a person, a party to an agreement to 
 ■commit a burglary and steal goods from 
 a store and conceal the same for disposi- 
 tion, who was not present at the time 
 others of the conspirators were unloading 
 and depositing the stolen goods at a 
 pawnbroker's shop, when, upon being ac- 
 costed by a police officer, some one of 
 the persons who were present at such un- 
 loading and depositing shot and killed 
 the officer, the co-conspirator who was 
 absent at the time of the killing, not hav- 
 ing aided or abetted, advised or encour- 
 aged, the homicide, nor, before its com- 
 mission, advised the persons in charge 
 of the stolen goods to oppose and resist 
 any and all persons who should attempt 
 to seize the same, or interrupt them in 
 secreting or disposing of the goods, will 
 not be liable criminally for the homicide. 
 Lamb v. People. 96 111. 73. 
 
 A husband, desiring to obtain a di- 
 vorce from his wife, employed a man to 
 seduce her while he could be a witness. 
 The man, not being able to accomplish 
 his purpose by persuasion, resorted to 
 force, and raped the woman, who 
 screamed and endeavored to protect 
 herself, while the husband stood by in a 
 concealed place, and not only refused to 
 assist her, but subsequently filed a peti- 
 tion for divorce on the ground of his 
 wife's adultery on this occasion. The 
 husband, under these circumstances, was 
 held to be guilty of rape. People v. 
 Chapman, 28 N. W. Repr. (Mich.) 8g6. 
 
 Several soldiers employed by the mes- 
 senger of the secretary of state to assist 
 in the apprehension of a person unlaw- 
 fully broke open the door of a house 
 ■where the person was supposed to be. 
 Having done so, some of the soldiers 
 began to plunder, and stole some goods. 
 The question was, whether this was 
 felony at all. Holt, C.J., observing 
 upon this case, says that they were all 
 engaged in an unlawful act is plain, for 
 they could not justify the breaking a, 
 man's house without first making a 
 ■demand. Yet all those who were not 
 guilty of stealing were acquitted, notwith- 
 standing their being engaged in an un- 
 
 71 
 
Before the Fact. 
 
 ACCESSORY. 
 
 After the Fact. 
 
 most of the States he may be indicted, tried, convicted, and pun- 
 ished as if he alone and independently had committed the crime.* 
 In misdemeanors there are no accessories, but all who participate 
 in the commission of the act, or aid therein, are principals. ** 
 
 16. Accessories after the Fact. — Every one is an accessory after 
 the fact to a crime who, knowing a crime to have been committed 
 
 At common law the accessory is re- 
 leased by the acquittal of the principal. 
 U. S. V. Crane, 4 McL. (U. S.) 317. 
 
 Before the 7 Geo. 4, c. 64, accessories 
 could not, except by their own consent, 
 be punished until the guilt of the prin- 
 cipal offender was established. It was 
 necessary, therefore, either to try them 
 after the principal had been convicted 
 or upon the same indictment with him, 
 and the latter was the usual course, i 
 Russ. Cri. 174, 5th ed. This statute is 
 now repealed, and by the 24 and 25 Vict, 
 c. 94, s. I, it is enacted that " whoso- 
 ever shall become an accessory before 
 the fact to any felony, whether the same 
 be a felony at common law or by virtue 
 of any act passed or to be passed, may 
 be indicted, tried, convicted and pun- 
 ished in all respects as if he were a prin- 
 cipal felon." By s. 2, "whosoever 
 shall counsel, procure, or command any 
 other person to commit any felony, 
 whether the same be a felony at common 
 law, or by virtue of any act passed or to 
 be passed, shall be guilty of felony, and 
 raay be indicted and convicted either as 
 an accessory before the fact to the prin- 
 cipal felony, together with the principal 
 felon, or after the conviction of the prin- 
 cipal felon, or may be indicted and con- 
 victed of a substantive felony, whether 
 the principal felon shall or shall not have 
 been previously convicted, or shall or 
 shall not be amenable to justice, and 
 may thereupon be punished in the same 
 manner as an accessory before the fact 
 to the same felony, if convicted as an ac- 
 cessory, may be punished." 
 
 Soliciting and inciting a person to com- 
 mit a felony is not a substantive felony 
 under this section, unless the felony is 
 actually committed, but only a misde- 
 meanor; and it is doubtful whether a 
 soliciting and inciting is equivalent to a 
 counselling and procuring. R. z/.Gregory, 
 L. R. I C. C. R. 77; 36 L. J., M.C. 60. 
 
 It was decided upon the II and 12 Vict, 
 c. 46, s. I (which is in the same terms as 
 , the 24 and 25 Vict. c. 94, s. i, and was 
 passed to remedy a defect in the 7 Geo. 
 4, c. 64), that a person charged as an ac- 
 cessory before the fact may be convicted 
 even though the principal be acquitted. 
 R. V. Hughes, Bell C. C. 242. The two 
 first counts charged A and B with steal- 
 
 ing, and the third count charged B with 
 receiving. No evidence was offered 
 against A, who was acquitted and called 
 as a witness. The evidence went ta 
 show that B was an accessory before the 
 fact, and the jury found a general ver- 
 dict of guilty. It was held that the con- 
 viction was good. Erie, J., said: "We 
 consider that being an accessory before 
 the fact now stands as a substantive 
 felony, and that now the conviction of 
 an accessory would stand good, and no 
 wrong be done him, though he should be 
 tried before the principal." 
 
 By the 24 and 25 Vict. c. 94, s. 5, " if 
 any principal offender shall be in any- 
 wise convicted of any felony, it shall be 
 lawful to proceed against any accessory 
 either before or after the fact in the 
 same manner as if such principal felon 
 had been attainted thereof, notwithstand- 
 ing such principal shall die or be par- 
 doned, or otherwise delivered before 
 attainder; and every such accessory shall, 
 upon conviction, suffer the same punish- 
 ment as he would have suffered if the 
 principal had been attainted." By the 
 24 and 25 Vict. c. 94, s. 6 (replacing the 
 14 and 15 Vict. c. 100, s. 15), " any num- 
 ber of accessories at different times ta 
 any felony, and any number of receivers 
 at different times of property stolen at 
 one time, may be charged with substan- 
 tive felonies in the same indictment, and 
 may be tried together, notwithstanding 
 the principal felon shall not be included 
 in the same indictment, or shall be in 
 custody or amenable to justice." Ros- 
 coe's Cr. Ev. (loth ed.) 185. 
 
 Evidence of Conviction of Principal Ad- 
 missible. — Upon the trial of an accessory 
 before the fact, the record of the convic- 
 tion of the principal is proof prima facie 
 of that fact; but this is not conclusive, 
 and other evidence of the commission of 
 the crime by the principal is admissible. 
 State V. Mosley, 31 Kan. 355; Levy v.. 
 People, 80 N. Y. 327. 
 
 1. State V. Kirk, 10 Oregon, 505; State 
 V. Mosley, 31 Kan. 355; State v. Cassady, 
 12 Kan. 550; Thomas v. State, 43 Ark. 
 149; Sutton V. State, 16 Tex. App. 490; 
 State V. Mower, 25 N. W. Repr. (Iowa) 
 929; Minich v. People, 9 Pac. Repr. 
 (Colo.) 4; Levy v. People, 80 N. Y. 327. 
 
 8. Faircloth v. State, 73 Ga. 426. 
 
 73 
 
After the Fact. 
 
 ACCESSORY. 
 
 After the Fact, 
 
 by another, receives, comforts, or assists him in order to enable 
 him to escape from punishment, or rescues him from an arrest 
 for crime, or, having him in custody for the crime, intentionally 
 and voluntarily suffers him to escape, or opposes his apprehen- 
 sion : 1 provided that a married woman who receives, comforts, or 
 relieves her husband, knowing him to have committed a crime, 
 does not thereby became an accessory after the fact.* 
 
 1. Russell on Cr. (gth Am. ed.) 63-66. 
 See Harrel v. State, 39 Miss, 702; Com. 
 ;:'. Filburn, 119 Mass. 297; People v. 
 Gassaway, 28 Cal. 404; White z'. People, 
 81 111. 323; Wren v. Commonwealth, 26 
 Gratt. (Va.) 952; Loyd v. State, 45 Ga. 
 321; State V. Payne, i Swan (Tenn.), 
 383; Com. V. Miller. 2 Ashm. (Pa.) 61. 
 
 An accessory alter the fact, says Lord 
 Hale, is where a person knowing the 
 felony to be committed by another re- 
 ceives, relieves, comforts, or assists the 
 felon. I Hale P. C. 618. Whetherhebe' 
 a principal, or an accessory before the 
 fact. 2 Hawk. c. 29, s. i; 3 P. Wms. 
 475. 'Bal a. feme covtrt Aoes not become 
 an accessory by receiving her husband. 
 This, however, is the only relationship 
 which will excuse such an act, the hus- 
 band being liable for receiving the wife. 
 I Hale P. C. 621. So if a master re- 
 ceives his servant, or a servant his mas- 
 ter, or a brother his brother, they are 
 accessories, in the same manner as a 
 stranger would be. Hawk. P. C. b. 2, 
 c. 2g. s. 34. But in some States, by stat- 
 ute, near relatives may aid each other 
 without ibecoming accessories after the 
 fact. 2 Cooley's Blackstone, 298 «. If 
 a husband and wife knowingly receive a 
 felon, it shall be deemed to be the act of 
 the husband only. i. Hale P. C. 621. 
 But if the wife alone, the husband being 
 ignorant of it, receive any other person 
 being a felon, the wife is accessory, and 
 not the husband. Id. 
 
 The accused must know that the de- 
 fendant is guilty. Wren v. Common- 
 wealth, 26 Gratt. (Va.) 952; TuUy v. 
 Commonwealth, 11 Bush (Ky.), 154; 
 State V. Davis, 14 R. I. 281. 
 
 It must be shown that the criminal who 
 was assisted committed the crime. Pas- 
 ton V. State, 12 Tex. App. 408; Wren v. 
 Commonwealth, 26 Gratt. (Va.)952. And 
 that the crime is fully completed. See 
 State V. Payne, i Swan (Tenn.), 383; 
 Harrel v. State, 39 Miss. 702. 
 
 If A assaults B and mortally injures 
 him, and C assists A before the death of 
 B, C is not an accessory after the fact to 
 the murder. Harrel v. State, 39 Miss. 
 702: Wren v. Commonwealth, 26 Gratt. 
 (Va.) 952; 4 Black Com. 38. 
 
 A man who employs another person to 
 harbor the principal may be convicted 
 as an accessory after the fact, although 
 he himself did no act to relieve or assist 
 the principal. R. v. Jarvis. 2 Moo. & R. 
 40. So it appears to be settled that who- 
 ever rescues a felon imprisoned for the 
 felony, or voluntarily suffers him to es- 
 cape, is guilty as accessory. Hawk. P. 
 C. b. 2, c. 29, s. 27. In the same man- 
 ner, conveying instruments to a felon, to 
 enable him to break jail, or to bribe the 
 jailer to let him escape, make the party 
 an accessory. But to relieve a felon in 
 jail with clothes or other necessaries is 
 no offence, for the crime imputable to 
 this species of accessory is the hindrance- 
 of public justice, by assisting the felon 
 to escape the vengeance of the law. 4 
 Black. Com. 38. 
 
 One who receives money from the 
 thief, knowing it to have been stolen, is 
 not an accessory after the fact. People 
 V. Shepardson, 48 Cal. i8g. 
 
 A was convicted of concealing B, an 
 alleged horse-thief. The case against B 
 was reversed on error. Held, the judg- 
 ment against A should also be reversed, 
 without examination of errors assigned. 
 Rav V. State, 13 Neb. 55. 
 
 One who conceals or aids a felon, not 
 in order that he may escape arrest, trial, 
 conviction, or punishment, but for some 
 other purpose, cannot be convicted as 
 an accessory after the fact under the 
 Missouri Statutes. State v. Reed, 85 Mo. 
 194., 
 
 Merely suffering the principal to escape 
 will not make the party an accessory 
 after the fact, for it amounts at most but 
 to a mere omission. 9 H. 4, st. i; i 
 Hale, 6ig. So if a person speak or 
 write, in order to obtain a felon's pardon 
 or deliverance. 26 Ass. 47. Oradvisehis 
 friends to write to the witnesses not to 
 appear against him at his trial, and they 
 write accordingly. 3 Inst 139; t Hale, 
 620. Or even if he himself agree for 
 money not to give evidence against the 
 felon. Moo. 8. Or know of the felony 
 and do not discover it. i Hale, 371, 
 618. None of these acts will make a 
 party an accessory after the fact. 
 
 2. R. V. Good, I C. & K. 185. 
 
 73 
 
After the Tact. 
 
 ACCESSORY. 
 
 Evidence. 
 
 Where one assists in concealing stolen property anc receives a 
 part as his share he is guilty as accessory.^ 
 
 17. Accessories after the Fact are Principals. — Every accessory after 
 the fact to any crime is guilty of a substantive crime, for which he 
 may be convicted, whether the principal has or has not been con- 
 victed, or is or is not amenable to justice, and for which he may be 
 indicted either together with the principal or alone.^ 
 
 18. Evidence. — In England and in most of the States it rests 
 with the court whether the evidence of an accomplice may be 
 received.* Upon the trial of an accessory before the fact, the 
 
 1. House V. State, l6 Tex. App. 25. 
 Compare People v. Shepardson, 48 Cal. 
 189. 
 
 Goods were feloniously taken and re- 
 moved in A's absence by his servant, 
 and under A's direction; afterwards A 
 was present and aided in secreting the 
 goods. Held, that this was not larceny 
 in A, who was a mere accessory. Nor- 
 ton V. People, 8 Cow. (N. Y.) 137. 
 
 2. Loyd V. State, 45 Ga. 57; Wren v. 
 Commonwealth, 26 Gratt. (Va.) 952; 
 Sutton V. State, 16 Tex. App. 490. 
 
 Made so in Ohio by statute. Noland 
 •V. State, 19 Ohio St. 131. ' 
 
 In California, a receiver of stolen 
 goods, knowing them to be stolen, is not 
 an accessory after the fact. People v. 
 Stakem, 40 Cal. 599; People v. Shepard- 
 son, 48 Cal. i8g. 
 
 In Illinois, by statute, an accessory 
 after the fact is not punishable as a prin- 
 cipal. Reynolds v. People, 83 111. 479; 
 s. c, 25 Am. Rep. 410. 
 
 Unless regulated by statute, the prin- 
 cipal must be tried and convicted first. 
 State V. Pybass, 4 Humph. (Tenn.) 442; 
 Baron v. People, i Park. Cr. (N. Y.) 246; 
 U. S. V. Crane, 4 McL. (U. S.) 317; 
 Stoops V. Commonwealth, 7 Serg. & R. 
 (Pa.) 491; Com. V. Phillips, 16 Mass. 
 423; State V. Groff, i Murph. (N. Car.) 
 270. 
 
 3. Notwithstanding the common-law 
 rule which formerly prevailed that wit- 
 nesses who were interested in the inquiry 
 were not admissible, an exception was 
 always made in the case of an accomplice 
 who was willing to give evidence; and 
 this exception has been stated to be 
 founded on necessity, since, if accom- 
 plices were not admitted, it would fre- 
 quently be impossible to find evidence to 
 convict the greatest offenders. Hawk 
 P. C. b. 2, c. 46, s. 94. In the absence 
 of statutory provision it is not a matter 
 of course to admit an accomplice to give 
 evidence on the trial, even though his 
 testimony has been received by the com- 
 mitting magistrates; but an application 
 
 to the court for the purpose must be 
 made, i Phill. Ev. 91, loth ed. ; People 
 V. Whipple, 9 Cow. (N. Y.), 707; Com. v. 
 Brown, 130 Mass. 279. Compare Runnels 
 ■u. State, 28 Ark. 121. The court usually 
 considers not only whether the prisoners 
 can te convicted without the evidence of 
 the accomplice, but also whether they 
 can be convicted with his evidence. If, 
 therefore, there be sufficient evidence to 
 convict without his testimony, the court 
 will refuse to allow him to be admitted 
 as a witness. So if there be no reason- 
 able probability of a conviction even with 
 his evidence, the court will refuse to ad- 
 mit him as a witness. Thus where sev- 
 eral prisonefs were committed as prin- 
 cipals, and several as receivers, but no 
 corroboration could be given as to the 
 receivers against whom the evidence of 
 the accomplice was required,. Gurney, 
 B. , refused to permit one of the princi- 
 pals to become a witness. R. v. Mellor, 
 Staff. Sum. Ass. 1833. See Ray v. State, 
 I Greene (Iowa), 316; Wight v. Rinds- 
 kopf, 43 Wis. 344. So in R. v. Saunders, 
 Wore. Spr. Ass. 1842, oti a motion to ad- 
 mit an accomplice, Patleson, J., said, 
 " I doubt whether I shall allow him to be 
 a witness ; if you want him for the pur- 
 pose of identification and there is no 
 corroboration, that will not do." In R.' v. 
 Salt, Staff. Spr. Ass. 1843, where there 
 was no corroboration of an accomplice, 
 Wightman, J., refused to allow him to 
 become a witness. 3 Russ. Cri. 602, 5th 
 ed (j). And again in R. v. Sparks, i F. & 
 F. 388, where, the counsel for the prose- 
 cution applied for leave to call an accom- 
 plice who had pleaded guilty. Hill, J., re- 
 fused to permit it until the other evidence 
 had been given in order to see whether it 
 was sufficient to corroborate that of the 
 accomplice. 
 
 It is competent for the court to order 
 the accomplice to be acquitted at the trial 
 for the purpose of qualifying him as a 
 witness for the State, or to accept a plea 
 admitting guilt to such a degree as in the 
 opinion of the court is requisite ; or for 
 '4 
 
Svidenoe, 
 
 ACCESSOJiY. 
 
 Evidence, 
 
 record of the conviction of the principal is ■prooi prima facie of that 
 fact ; but this is not conclusive, and other evidence of the commis- 
 sion of the crime by the principal is admissible. '^ The uncor- 
 roborated evidence of an accomplice is sufficient at common law 
 to convict ;** but this rule has been changed in some States by 
 
 the court to assent to entering of a nolle 
 prosequi. State v. Graham, 41 N. J. L. 15; 
 s. c, 32 Am. Rep. 174. See State i*. Lyon, 
 81 N. Car 600; s. i... 31 Am. Rep. 518; U. 
 S. V. Ford, 9 Otto (U. S.), 594. 
 
 At the trial of an indictment against 
 two persons jointly, if one of them offers 
 himself as a witness, his testimony is com- 
 petent against the other defendant, and 
 may, by permission of the court, be in- 
 troduced after the government has rested 
 its case. Com. v. Brown, 130 Mass. 279. 
 
 It is within the discretion of the public 
 prosecutor to determine whether or not 
 the defendant, who is an accomplice, 
 shall be permitted to become "State's 
 evidence," and als'o whether, if he does, 
 he is afterward entitled to exemption 
 from further prosecution by reason of 
 what he has done. State v. Runnels, 28 
 Ark. 121. 
 
 A defendant in a criminal action is 
 competent and compellable by statute to 
 testify for or against a co-defendant, pro- 
 vided his testimony does not criminate 
 himself. State v. Smith, 84 N. Car. 705. 
 
 A was tried alone upon an indictment 
 in which he was jointly indicted with B; 
 the latter had never been arraigned, nor 
 had a nolle prosequi been entered as to 
 him. Upon the trial B was called as 
 a witness on behalf of the people, no 
 formal motion that he be admitted as a 
 witness on their behalf having been 
 made. Counsel for A objected that he 
 was not a competent witness, having 
 been jointly indicted with A for the 
 offence with which the latter was charged. 
 Held, that the objection was properly 
 overruled and his testimony admissible. 
 Taylor w. People, 12 Hun (N. Y.), 212, 63 
 N. Y. 143. 
 
 It makes no difference whether the ac- 
 complice has been convicted or not, or 
 whether he be joined in the same indict- 
 ment with the prisoner to be tried or not ; 
 provided he be not put upon his trial at 
 the same time. Hawk P. C, b. 2, c. 46, 
 s. 90; Taylor v. People, 12 Hun (N. Y.), 
 212. Where A, B, C, and D were in- 
 dicted together, after plea, and before 
 they were given in charge to the jury, 
 Williams, J., allowed D to be removed 
 from the dock and examined as a witness 
 against his associates. R. ». Gerber, 
 Temp. & M. 647. See also Winsor v. R., 
 L. R, iQ. B. 390 ; 35 L. J., M. C. 161. 
 
 Where the accomplice has been joined 
 in the indictment, and, before the case 
 comes on, it appears that his evidence 
 will be required, the usual practice is, be- 
 fore opening the case, to apply to have 
 the accomplice acquitted. R. v. Row- 
 land, Ry. & Moo. N. P. C. 401. See also 
 a remark of Cockburn, C. J., in Winsor 
 V. Reg., L. R. I Q. B. 390, approving of 
 this course, where the prosecution call 
 the witness, although, as pointed out by 
 Lord Coleridge, in R. v. Bradlaugh. 15 
 Cox C. C. 217, he did not lay it down as 
 a proposition of lav/ that the accomplice 
 could not be called without being first ac- 
 quitted. Where the case has proceeded 
 against all the prisoners, but no evidence 
 appears against one of them, the court 
 will, in its discretion, upon the applica- 
 tion of the prosecutor, order that one to 
 be acquitted for the purpose of giving 
 evidence against the rest. R. v. Fraser, 
 I McNally, 56. Where defendants are 
 jointly indicted and jointly tried, they 
 cannot be called for or against each 
 other. R. v. Payne, L. R. i C. C. R. 
 349 ; Noyes v. State, 40 N. J. L 429. 
 
 When Competent for Prisoner,^-It is 
 quite clear that an accomplice is a com- 
 petent witness for the prisoner in con- 
 junction with whom he himself com- 
 mitted the I crime. R. v. Balmore, i 
 Hale P. C. 305. But if he is charged in 
 the same indictment, and is put upon his 
 trial, he cannot be called. If he is 
 charged in the same indictment, but not 
 given in charge to the jury, and his trial 
 is postponed, he may be called (without 
 being acquitted) either for the prosecution 
 or the defence ; but if called for the 
 prosecution, the better course is to take 
 an acquittal; and if called for the defence, 
 no acquittal need be taken. R. v. Brad- 
 laugh, 15 Cox C. C. 217 ; R. V. Payne, 
 L. R. I C. C. R. 349. 
 
 1. People V. Buckland, 13 Wend. (N. 
 Y.) 592; Levy v. People, 80 N. Y. 327; 
 State J/. Mosley, 3iKans. 355; Arnold z/. 
 State, 9 Tex. App. 435; Keithlerz/. State, 
 16 Smedes & M. (Miss.) 192; State v. 
 Ricker, 29 Me. 84; State v. Rand, 33 N. 
 H. 216; Com. V. Knapp, 10 Pick. (Mass.) 
 477; State v. Duncan, 6 Ired. (N. Car.) 
 236; U. S. V. Hartwell, 3 Cliff. (U. S.) 
 221. 
 
 a. Wharton's Crim. Ev. §441; Wat- 
 son V, Commonwealth, 95 Pa. St. 4x8; 
 
 75 
 
Evidence. 
 
 ACCESSORY. 
 
 Evidence^ 
 
 statute, 1 and the general rule is that where a verdict is rendered 
 exclusively on such testimony it should be set aside by the court,, 
 and it is the duty of the trial judge to advise the jury not to con- 
 vict on the evidence of an accomplice who is uncorroborated as to 
 the essential elements of the case.** It is not necessary that there 
 
 State V. RusselV, 33 La. Ann. 135; Earll 
 V. People, 73 111. 329; Collins v. People, 
 g8 111. 584; s. c, 38 Am. Rep. 105; State 
 V. Potter, 42 Vt. 495; Stocking v. State, 
 7 Ind. 326; Johnson v. State, 2 Ind. 652; 
 Dawley v. State, 4 Ind. 128; Johnson v. 
 Slate, 65 Ind. 269; Ayers v. State, 88 
 Ind. 275; State v. Stebbins, 29 Conn. 
 463; State V. Watson, 31 Mo. 361: Sump- 
 terz/. State, 11 Fla. 247;'Com v. Holmes, 
 127 Mass. 424; s. c, 34 Am. Rep. 391, 
 note; State v. Hyer, 39 N. J. L. 598; 
 Hamilton v. People, 29 Mich. 173; Peo- 
 
 vple V. O'Brien, 26 N. W. Repr. (Mich.) 
 795; White V. State, 52 Miss. 216; Peo- 
 
 j>le V, Costello, i Denio (N. Y.), 83; Peo- 
 ple v. Davis, 21 Wend. (N. Y.) 313; 
 Lindsay v. People, 63 N. Y. 143 (but the 
 rule is now changed by the N. Y. Penal 
 Code); People v. Ryland, 28 Hun (N.Y.), 
 568; U. S. V. Neverson, i Mackey (D. C), 
 152; U. S. V. Bicksler, i Mackey (D. C), 
 341; State V. Holland, 83 N. Car. 624; 
 s. c, 35 Am. Rep. 5875 Olive i/. State, 11 
 Neb. i; Ingalls v. State, 48 Wis. 647. 
 
 1. Bowling V. Commonwealth, 79 Ky. 
 604; State V. Godell, 8 Oregon, 30; 
 Lumpkin v. State, 68 Ala. 56; People v. 
 Ryland, 28 Hun (N. Y.), 568; Myers v. 
 State, 7 Tex. App. 640: Hannahan v. 
 State, 7 Tex. App. 664; Heath v. State, 
 7 Tex. App. 464; Childers v. State, 52 
 Ga. io6;Middleton v. State, 52 Ga. 527. 
 
 2. Wharton's Crim. Ev. §441; ZoUi- 
 coffer If. State, 16 Tex. App. 312; Harri- 
 son V. State, 17 Tex. App. 442: Tisdale 
 V. State, 17 Tex. App. 444; Marler v. 
 State, 67 Ala. 55, 68 Ala. 580; Lumpkin 
 V. State. 68 Ala. 56; Bowling v. Com- 
 monwealth, 79 Ky. 604; Crait v. Com- 
 monwealth, 80 Ky. 349; George v. State, 
 39 Miss. 570; White v. State, 52 Miss. 
 216; Fitzcox V. State,. 52 Miss. 923; 
 Hughes V. State. 58 Miss. 355; State v. 
 Bayonne, 23 La. Ann. 78; Hamilton v. 
 People, 29 Mich. 173; People v. Schweit- 
 zer, 23 MicTi. 30; People v. Jenness, 5 
 Mich. 305; State v. Moran, 34 Iowa, 453; 
 State V. Thornton, 26 Iowa, 79; State v. 
 Schlagel, 19 Iowa, 169; State v. Jones, 64 
 Mo. 391; State v. Watson, 31 Mo. 361; 
 State V. Kellerman, 14 Kans. 135; Craft 
 V. State, 3 Kans. 450; State v. Litchfield, 
 58 Me. 267; State v. Cunningham, 31 
 Me. 355; Com. v. Scott, 123 Mass. 222; 
 Com. V. Holmes, 127 Mass. 424; s. c, 34 
 Am. Rep. 391; Com. v. Snow, iii Mass. 
 
 411; Com.!/. Price, loGray (Mass.), 472; 
 Com. u. Bosworth, 22 Pick. (Mass.) 397; 
 State V. Williamson, 42 Conn. 261; State 
 V. Wolcott, 21 Conn. 272; State v. Steb- 
 bins, 29 Conn. 463; State v. Howard, 32: 
 Vt. 380; Dunn v. People, 29 N. Y. 523; 
 Lindsay v. People, 63 N. Y. 143; People 
 V. Evans, 40 N. Y. i; Peoples. Costello, 
 I Denio (N. Y.), 83; Coates v. People,. 
 4 Park. Cr. (N. Y.) 662 ; Carroll v. Com- 
 monwealth, 84 Pa. St. 107; State w. Hyer, 
 39 N. J. L. 598; Powers v. State, 44 Ga. 
 209 ; Brown v. Commonwealth, 2 Leighi 
 (Va.), 769; Allen v. State, 10 Ohio St. 
 287; Ulmer v. State, 14 Ind. 52; Collins. 
 V. People. 98 111. 584; s. c, 38 Am. Rep. 
 105; Earll V. People, 73 111. 329; Cross- 
 V. People, 47 111. 152; State v. Holland, 
 83 N. Car. 624; State v. Brown, 3 Strob. 
 L. (S. Car;) 508; Sumpter v. State, 11 
 Fla. 247; Flanagan v. State, 25 Ark. 92. 
 
 The state of the law as to the cor- 
 roboration of accomplices is somewhat 
 peculiar. It has been repeatedly laid 
 down that a conviction on the testimony 
 of an accomplice uncorroborated is legal. 
 The point was considered by the twelve 
 judges, and so decided In R. v. Attwood, 
 I Lea, 464, and again in R. v. Durham, 
 Id. ,478. And that the rule is so has also 
 been acknowledged by Lord Hale, i 
 Hale P. C. 304, 305; Lord Ellenborough, 
 R. CI. Jones, 2 Campb. 132; Lord Den- 
 man, R. V. Hastings, 7 C. & P. 152; 
 Alderson, B., R. v. Wilks, Id. 273; 
 Gurney, J., R. v. Jarvis, 2 Moo. & R. 
 40; and lastly, by the Court of Criminal 
 Appeal, in R. v. Stubbs, 25 L. J., M. C. 
 16. See also R. v. Boyes, i B. & S. 
 3"- 
 
 But while the law is thus fully estab- 
 lished, the practice of judges is almost 
 invariably to advise juries not to convict 
 upon the evidence of an accomplice who 
 is uncorroborated, and sometimes judges, 
 where the testimony of the accomplice is 
 the only evidence, take upon themselves 
 to direct an acquittal of the prisoner. 
 Of course it is always proper for a judge 
 in the exercise of his discretion to advise 
 a jury to acquit the prisoner in any case, 
 but it is submitted that it is not usually 
 his province to direct an acquittal unless 
 there be no legal evidence against the 
 prisoner, which in the face of the above 
 decisions cannot be the case if an accom- 
 plice has given evidence against him. 
 
 76 
 
^Evidence. 
 
 ACCESSORY. 
 
 Lvidence. 
 
 .should be other evidence which would of itself warrant a convic- 
 tion.^ 
 
 Accomplices admitted as witnesses for the prosecution are not 
 ■of right entitled to pardon. The district attorney has no author- 
 ity to exempt such accomplice from prosecution.'-* 
 
 The almost absolute terms, moreover, in 
 which judges state it to be their practice 
 to advise juries not to convict in such 
 
 -cases leave it impossible to conceive in 
 what case the principle so frequently 
 acknowledged in the cases above quoted 
 is to receive any application. And 
 lastly, the practice of not permitting the 
 accomplice to be called until it appears 
 that his evidence can be satisfactorily 
 corroborated can only be justified on the 
 assumption that on his evidence, uncor- 
 roborated, a legal conviction could not 
 
 ibe founded. Thus the law remains in that 
 anomalous state in which the bare ex- 
 istence of a principle is acknowledged, 
 but which principle is constantly dis- 
 approved of and frequently violated. As 
 the law now stands, it is universally 
 
 -agreed by all the authorities that, if the 
 accomplice were uncorroborated, a judge 
 would be wrong who did not advise the 
 jury not to convict; whereas the Court 
 of Criminal Appeal would be bound to 
 pronounce an opinion that a judge who 
 
 •did not so advise them was right. Ros- 
 
 ■coe's Crira. Ev., loth ed. 132. 
 
 In Collins v. People, 98 111. 584; s. c , 
 38 Am. Rep. 105, Scholfield, J., after re- 
 viewing the English cases, said: "The 
 tendency with us, at present, is to ar- 
 bitrarily exclude as little as possible, but 
 to listen and give credence to whatever 
 tends to establish the truth. The inno- 
 cent should not be convicted, nor should 
 the guilty escape punishment, by reason 
 of any merely arbitrary rule preventing 
 the free and full exercise of the judgment 
 as to the truthfulness or untruthfulness of 
 testimony, and the reliance to be placed 
 upon it in the trial of cases. In many, 
 probably in most, cases, the evidence of 
 an accomplice, uncorroborated in mate- 
 rial matters, will not satisfy the honest 
 judgment beyond a reasonable doubt; 
 and then it is clearly insufficient to au- 
 thorize a. verdict of guilty. But there 
 may frequently occur other cases, where, 
 from all the circumstances, the honest 
 judgment will be as thoroughly satisfied 
 from the evidence of the accomplice of 
 the guilt of the defendant as it is possible 
 it could be satisfied from human testi- 
 mony; and in such case it would be an 
 
 •outrage upon the administration of justice 
 
 <to acquit." 
 
 Although it is not usual to suffer a 
 
 conviction upon the wholly uncorrobo- 
 rated evidence of an accomplice, and 
 juries are advised not to convict without 
 a confirmation as to the material facts; 
 still, if the jury are fully convinced of the 
 truth of the statements of a witness thus 
 situated, they may convict upon his testi- 
 mony alone. Lindsay v. People, 63 N. 
 Y. 143. 
 
 If the court does not advise the jury to 
 acquit the defendant, when the only evi- 
 dence is the uncorroborated testimony of 
 an accomplice, it is not ground for a re- 
 versal on appeal. State v. Potter, 42 Vt. 
 495- 
 
 1. Lumpkin v. State. 68 Ala. 56; Smith 
 V. State, 59 Ala. 104; Lockett z;. State, 63 
 Ala. 5; Marler v. State, 67 Ala. 55; 
 Partee v. State, 67 Ga. 570; Com. v. Bos- 
 worth, 22 Pick. (Mass.) 397; Com. v. 
 Hayes, 140 Mass. 366; State z/. Litchfield, 
 58 Me. 267; State v. Potter, 42 Vt. 495; 
 State V. Russell, 33 La. Ann. 135; Wat- 
 son wr Commonwealth. 95 Pa. St. 418; 
 State V. Watson, 31 Mo. 361; State v. 
 Stebbins, 2g Conn. 463; People v. Cos- 
 tello, I Denio (N. Y.), 418, 424. Compare 
 People V, Evans, 40 N. Y. i; U. S. v. 
 Harries, 2 Bond. (U. S.) 311; State v. 
 Allen, 57 Iowa, 431. 
 
 But it must be corroborated by evi- 
 dence tending to 'connect the defendant 
 with the commission of the offence. 
 Marler v. State, 67 Ala. 55; Com. v. 
 Holmes. 127 Mass. 424; s. c, 34 Am. 
 Rep. 391; McCalla v. State, 65 Ga. 346; 
 Kilrowz/. Commonwealth, 89 Pa. St. 480; 
 State V. Hyer. 39 N. J L. 598; Peoples. 
 Courtney, 28 Hun (N. Y.), 589; Coleman 
 V. State, 44 Tex. 109; State v. Thorn- 
 ton, 26 Iowa, 80; People v. Davis, 21 
 Wend. (N. Y.) 309; Watson v. Common- 
 wealth, 95 Pa. St. 418; Cohea v. State, 
 II Tex. App. 622; State v. Hennessy, 55 
 Iowa, 299; State v. Allen, 57 Iowa, 431. 
 
 Voluntary confessions are, sufficient to 
 corroborate the testimony of an accom- 
 plice. Partee v. State, 67 Ga. 570. 
 
 2. U. S. V. Ford (Whiskey Cases), 99 
 U. S. 594. See Com. v. Woodside, 105 
 Mass. 597; Com. v. Brown. 103 Mass. 
 422; State V. Graham, 41 N. J. L. 15; 
 State V. Lyon, 81 N. Car. 600; U. S. 
 w. Lee, 4 McLean (U. S.), 103. Compare 
 Harden v. State, 12 Tex. App. 186; 
 People V. Bruzzo, 24 Cal. 41. 
 
 Roscoe(Cr. Ev. iothed.132): Although 
 
 77 
 
Evidence, 
 
 ACCESSOR Y. 
 
 Evidence. 
 
 Where an accomplice testifies as a witness, a liberal and full 
 cross-examination, for the purpose of testing the truth of his state- 
 ments, should be permitted. ^ 
 
 Lord Hale thought that if a man had a admitted as a witness against his associ- 
 
 promise of pardon if he gave evidence 
 against one of his confederates, this dis- 
 abled his testimony — 2 Hale P. C. 280 — 
 yet it was fully settled, before the statutes 
 were passed which removed the dis- 
 abilities of witnesses on the ground of 
 interest, thai such a promise, however it 
 might affect the credibility of the witness, 
 would not destroy his competency. R. 
 f.Tonge,Kelynge i8. See State i". Cook, 
 23 La. Ann. 45; Casey w.State, 37 Ark. 67. 
 
 Where an accomplice, after making a 
 confession upon the understanding that 
 he is not to be prosecuted, refuses to tes- 
 tify, his confession may be given in evi- 
 dence against him on liis trial. Com. z'. 
 Knapp. 10, Pick. (Mass.) 477; Com. v. 
 Price, loGray (Mass.), 472; U.S. v. Ford, 
 gg U. S. 5g4. See Wight v. Rindskopf, 43 
 Wis. 34g; People v. Whipple, g Cow. (N. 
 Y.) 707; Runnels v. State, 28 Ark. 121; 
 Alderman v. People, 4 Mich. 414; State 
 ■V. Condry, 5 Jones L. (N. Car.) 418. 
 
 If an accomplice be convicted after 
 being made a witness by the State and 
 received as such by the court, and after 
 having made an ingenuous confession, 
 such accomplice has an equitable claim 
 to a 'judicial recommendation to the 
 mercy of the pardoning power which 
 cannot be withheld without a violation of 
 an established rule of practice. State v. 
 Graham, 41 N.J. L. 15; s c, 32 Am. 
 Rep. 174; State v. Lyon, 81 N. Car. 600; 
 s. c, 31 Am. Rep. 518; U. S. v. Ford 
 (Whiskey Cases), g Otto (U. S.), 5g4. 
 Compare Com. v. Dabney, I Rob. (Va.) 
 6g6; s. c, 40 Am. Dec. 717. 
 
 Situation of an Accomplice when called 
 as a Witness. — Where a receiver dis- 
 covered the principals in a felony under a 
 promise of favor, and also disclosed 
 another felony of the same kind under 
 an impression that by the course he had 
 taken he had protected himself from the 
 consequences, Coleridge, J., recommend- 
 ed the counsel for the prosecutor not to 
 proceed with the indictment against the 
 receiver for such other felony, adding, 
 however, that if it was persisted in .he 
 was bound to try the case. The recom- 
 mendation of the learned judge being 
 yielded to, an acquittal was taken. R. 
 V. Garside, 2 Lew. C. C. 38. 
 
 A prisoner who, after a false represen- 
 tation made to him by a constable in jail 
 that his confederates had been taken into 
 custody, made a confession, and was 
 
 ates, but on the trial denied all knowl- 
 edge of the subject, was afterwards tried 
 and convicted upon his own confession; 
 and the conviction was upheld by all the 
 judges. R. Tj. Burley, 2 Stark. Ev. 13, 
 3d ed. So where in a case of burglary 
 an accomplice, who had been allowed to 
 go before the grand jury as a witness for 
 the crown, upon the trial pretended to 
 be ignorant of the facts on which he had 
 before given evidence, Coleridge, J., 
 ordered a bill to be preferred against 
 him, to which he pleaded guilty, and 
 judgment of death was recorded. R. v. 
 Moore, 2 Lew. C. C. 37. So where an 
 accomplice, after making a full dis- 
 closure before the committing magistrate, 
 refused when before the grand jury to 
 give any evidence at all, Wightman, J., 
 ordered his name to be inserted in the 
 bill of indictment, and he was convicted 
 on his own confession. R. v. Holtham, 
 Staff. Spr. Ass. 1843, 3 Russ. Cri. 601, 
 5th ed. {h). So where an accomplice 
 who was called as a witness against 
 several prisoners gave evidence which 
 showed that all, except one, who was 
 apparently the leader of the gang, were 
 present at a robbery, but refused to give 
 any evidence as to that one being pres- 
 ent, and the jury found all the prisoners 
 guilty, Parke, B., thinking that thp ac- 
 complice had refused to state that the 
 particular prisoner was present in order 
 to screen him, ordered the accomplice to 
 be kept in custody till the next assizes, 
 and then tried. R. v. Stokes, Staff. Spr. 
 Ass. 1837, 3 Russ. Cri. 601, 5th ed. (h). 
 The prisoner made a statement to aeon- 
 stable, and then repeated it to a magis- 
 trate upon oath. He then made a further 
 statement on oath, adding, " I came here 
 to save myself." Subsequently he re- 
 fused to prosecute. It was held by five 
 judges out of nine that both the state- 
 ments made by him were receivable in 
 evidence against him; and by seven out 
 of nine that the first statement was ad- 
 missible. R. V. Gillis, II Cox C. C. 6g. 
 
 1. Lee V. State, 21 Ohio St. 151; see 
 Com. v. Price, 10 Gray (Mass.), 472; 
 Hamilton v. People, 2g Mich. 173. 
 
 When the evidence of an accomplice is 
 corroborated, he occupies the same atti- 
 tude of any other witness so far as the 
 methods of contradictirig or impeaching 
 him is concerned. Craft v. Common- 
 wealth, 81 Ky. 34g. 
 
 78 
 
Evidence. 
 
 ACCESSOR Y. 
 
 Corroboration, 
 
 The testimony of a witness who was present when a homicide 
 was committed, but who did not in any way participate therein, 
 but for a time thereafter concealed the fact, is sufificient without 
 other evidence to authorize conviction. ^ 
 
 Evidence cannot be legally admitted as competent and suffi- 
 cient corroboration which does not tend to confirm the testimony 
 of the accomplice upon a point material to the issue, in the sense 
 that it tends to prove the guilt of the defendant.** 
 
 The testimony of the accomplice should be corroborated as to 
 the person of the prisoner against whom he speaks.^ 
 
 While a conviction cannot be had upon the uncorroborated 
 evidence of an accomplice in the crime, without something else 
 deposed by other witnesses to connect the defendant with it, yet it 
 is impracticable to lay down any rule as to the precise amount of 
 evidence which is requisite to sustain the accomplice's account 
 identifying the defendant as one of the criminals,* further than 
 
 1. Lowery v. State, 72 Ga. 649. 
 
 2. Com. V. Holmes, 127 Mass. 424 ; 
 s. c, 34 Am. Rep. 391; Com. v. Bos- 
 worth, 22 Pick. (Mass.) 397; State v. 
 Kyer, 39 N. J. L. 598 ; Kilrow v. Com- 
 Honwealth, 89 Pa. St. 480 ; Territory v. 
 minney, 2 Pac. Repr. (N. Mex.) 357. 
 See State v. Howard, 32 Vt. 380; State 
 V. Wolcott, 21 Conn. 282; Lindsay v. 
 People. 63 N. Y. 143; State v. Keller- 
 man, 14 Kans. 135. 
 
 3. Watson v. Commonwealth, 95 Pa. 
 St. 418; Carroll v. Commonwealth, 84 
 Pa. St. 107; Com. V. Drake, 124 Mass. 
 21; State V. Wolcott, 21 Conn. 271; 
 State V. Smalls, 11 S. Car. 262; Bell v. 
 State, 73 Ga. 572; McCalla f. State, 66 
 Ga. 346; Middleton v. State, 52 Ga. 527; 
 Childers v. State. 52 Ga. 106; Craft v. 
 Commonwealth, 80 Ky. 349; Hoyle v. 
 State, 4 Tex. App. 239; State v. Adams, 
 20 Kan. 311; State v. Hing, 16 Nev. 307; 
 State V. Allen, 57 Iowa. 431; State v. 
 Lawlor, 28 Minn. 216; State v. Odell, 8 
 Oregon, 30. Compare State v. Watson, 
 31 Mo. 361. 
 
 4. Bell V. State, 73 Ga. 572. 
 
 Proof of combination must be given be- 
 fore acts and declarations are admissible. 
 People V. Parish, 4 Denio (N. Y.), 153. 
 
 Giving or refusing an instruction that 
 conviction may be had on unsupported 
 testimony of accomplice is in discretion 
 of the court below, and the appellate 
 court will not reverse its action in that 
 respect. Ingalls v. State, 48 Wis. 647. 
 
 It is discretionary with the court to 
 direct an acquittal on corroborative testi- 
 mony of an accomplice. That an accom- 
 plice was induced to testify by an ofifer 
 of immunity only goes to his credibility. 
 Black V. State, 59 Wis. 471 ; Olive v. 
 State, II Neb. i. 
 
 Whether a witness is an accomplice is 
 for the jury. Under Gen. Stat. Minn, 
 1878, c. 73, sec. 104, corroborating evi- 
 dence, without the aid of the testimony 
 of the accomplice, must connect the de- 
 fendant with the offence, but it need not 
 be sufficient alone to establish his guilt. 
 State V. Lawlor, 28 Minn. 216. 
 
 A thirteen-year-old boy, who, under 
 threats and coercion of another, takes 
 part in the commission of a felony is 
 not an accomplice, and his testimony is 
 sufficient to sustain a conviction without 
 corroboration. People v. Miller, 6 Pac. 
 Repr. (Cal.) 99. 
 
 A co-conspirator is a competent wit- 
 ness. U. S. V. Sacia, 2 Fed. Repr. 754. 
 
 Admissions of one of several charged 
 as conspirators are not admissible unless 
 made during the existence of the con- 
 spiracy and in aid of the common design. 
 Johnson v. Miller, 63 Iowa, 529. 
 
 Declarations of a co-conspirator made 
 before the purposes of the conspiracy 
 have been accomplished are competent. 
 State V. Weaver, 57 Iowa, 730. 
 
 Declarations of one of a combination 
 for an illegal object are admissible 
 against the others, when the combination 
 and intent is clearly established. Water- 
 bury V. Sturtevant, 18 Wend. (N. Y.)353. 
 
 Where two unite in an undertaking to 
 defraud, the admissions of one are com- 
 petent against both, although there is no 
 evidence of conspiracy. Riehl w. Evans- 
 ville Found. Assoc, 104 Ind. 70. 
 
 T\yo defendants charged with fraudu- 
 lently obtaining property by prearrange- 
 ment and- fraud of one not denied, proof 
 of subsequent participation in the fraud 
 and its fruits by the other is sufficient 
 proof of combination. Lincoln v. Claflin, 
 7 Wall. (U. S.) 132. 
 
 79 
 
Evidence. 
 
 ACCJESSORY. 
 
 Corro'boration. 
 
 that there must be other evidence sufficient to satisfy the jury of 
 the fact. 
 
 It is not necessary that the testimony 
 of the accomplice should be corroborated 
 as to every material fact. State v. Hen- 
 nessy, 55 Iowa, 299 ; State v. Allen, 57 
 Iowa, 431. 
 
 The wife of a convict in a penitentiary 
 not connected with the charge is a com- 
 petent witness to corroborate an accom- 
 plice. State V. IVlcIntire, 58 Iowa, 572. 
 .See Woods v. Slate, 76 Ala. 35; s. c, 
 52 Am. Rep. 314; Dill v. State, i Tex. 
 App. 286 ; Haskins v. People, 16 N. Y. 
 344 ; U. S. V. Horn, 5 Blatchf.- (U. S.) 
 102. 
 
 Where two were jointly indicted for 
 a burglary, and the theory was that one 
 had broken in and entered the building 
 while the other was present abetting, 
 Jield, that an admission of the one sup- 
 posed to have broken in and entered has 
 no force as evidence against his co de- 
 fendant. ■ People V. Stevens, 47 Mich. 
 
 4"- 
 
 Where two persons were jointly in- 
 flicted for murder and there was no evi- 
 dence of a conspiracy prior to the conflict 
 resulting in the homicide, upon the sepa- 
 rate trial of one testirrjony of threats 
 made by the other some months before 
 the homicide held incompetent. State v. 
 Weaver, 54 Io%va, 730. 
 
 Declarations of an alleged conspiracy 
 cannot be admitted until after proof of 
 the conspiracy, and the declarations must 
 have been made during the progress of 
 the conspiracy and in furtherance of its 
 objects. U. S. V. Gunnell, 3 Cent. Repr. 
 (D. C.) 764. 
 
 Nature of Corrohoration. — Mr. Roscoe 
 says(Cr. Ev. loth ed. 133): Another point 
 which arises with respect to the corrobo- 
 ration of accomplices,' and upon which 
 the authorities are by no means so well 
 agreed, is as to what is the nature of the 
 corroboration which ought to be required. 
 We say required, but it is rather difficult 
 to say by what or how the requirement is 
 to be exacted, for by law no corroboration 
 is required at all. See R. v. Gallagher, 
 15 Cox C. C. 292. The practice, how- 
 ever, is for the present purpose much 
 more important than the principle, and 
 we shall, therefore, consider how far the 
 evidence ought to be corroborated. 
 
 It must be recollected that an accom- 
 plice is in most cases present at the 
 committal of the offence; and even if not 
 so, he may be presumed to be on those 
 terms of intimacy with the accused which 
 would render his knowledge of all the 
 circumstances attending the commission 
 
 of the crime extremely probable. There 
 may be many witnesses, therefore, who 
 give testimony which agrees with that of 
 the accomplice, but which, if it does not 
 serve to identify the accused parties, is 
 no corroboration of the accomplice; the 
 real danger being that the accomplice 
 should relate the circumstances truly, 
 and at the same time attribute a share in 
 the transaction to an innocent person. 
 
 It may indeed be taken that it is almost 
 the universal opinion that the testimony 
 of the accomplice should be corroborated 
 as to the person of the prisoner against 
 whom he speaks. This was so held by 
 Patteson, J., in R. v. Addis, 6 C. & P. 
 388, and again in R, v. Kelsey, 2 Lew. 
 45; by Williams, J., in R. v. Webb, 6 C. 
 & P. 595; by Alderson, B., in R. v. 
 Wilks, 7 C. & P. 272; and by Lord Ab- 
 inger, C.B., in R. v. Farlar, 8 C. & P. 
 106. 
 
 And in the later case of R. v. Stubbs, 
 25 L. J., M. C. 16, Parke, B., said, "My 
 practice always has been to tell the jury 
 not to convict the prisoner, unless the 
 evidence of the accomplice be confirmed, 
 not only as to the circumstances of the 
 crime, but also as to the person of the 
 prisoner;" and Cresswell, J., added, 
 "You may take it for granted that the 
 accomplice was at the committal of the 
 offence, and may be corroborated as to 
 the facts; but that has no tendency to 
 show that the parties accused were 
 there." 
 
 What appears to be required is that 
 there should be some fact deposed to in- 
 dependently altogether of the evidence 
 of the accomplice, which, taken by itself, 
 leads to the inference not only that a 
 crime has been committed, but that the 
 prisoner is implicated in it. Thus upon 
 an indictment for receiving a sheep know- 
 ing it to have been stolen, an accomplice 
 proved that a brother of the prisoner and 
 himself had stolen two sheep, and that 
 the brother gave one of them to the 
 prisoner, who carried it into the house in 
 which the prisoner and his father lived, 
 and the accomplice stated where the 
 skins were hid. On the houses of the 
 prisoner's father and the accomplice 
 being searched, a quantity of mutton was 
 found in each, which had formed parts of 
 two sheep corresponding in size with 
 those stolen, and the skins were found in 
 the place named by the accomplice. 
 Patteson, J., held that this was sufficient; 
 the finding of the mutton in the posses- 
 sion of the prisoner in itself raising an 
 
 80 
 
Evidence. 
 
 ACCESSORY. 
 
 Corroboration, 
 
 Corroboration may be supplied by circumstantial evidence.^ If 
 any evidence is admitted as competent by way of corroborating an 
 accomplice, so as to make it safe for the jury to convict, which is 
 
 implication of guilt on his part, which 
 the testimony of the accomplice con- 
 firmed. R. V. Birkett, 8 C. & P. 732. 
 It is not necessary that the accomplice 
 should be corroborated in every particu- 
 lar; but there must be a sufficient amount 
 of confirmation to satisfy the jury of ihe 
 truth of his story. R. v. Gallagher, 15 
 Cox C. C. 292. 
 
 The point about which the opinions of 
 judges appear to have fluctuated is as 
 to whether where several are indicted, 
 and- the evidence of the accomplice is 
 confirmed as to some only and not as to 
 others, the jury ought to be advised to 
 acquit those against whom there is no 
 corroboration. On the one hand it is 
 strongly urged in a note by Mr. Starkie 
 to the case of R. v. Dawber. 3 Stark. 
 N. P. C. 34 («), that a witness, if believed 
 at all, must be believed in tolo. and he 
 cannot be considered as speaking the 
 truth as to some of the prisoners and not 
 as to the others. The view of Mr. 
 Starkie is supported by the case to 'which 
 the note is appended; there, on the trial 
 of several prisoners, an accomplice who 
 gave evidence was confirmed in his tes- 
 timony with regard to some of the pris- 
 oners, but not as to the rest; Bayley, J., 
 informed the jury that if they were satis- 
 fied by the confirmatory evidence that 
 the accomplice was a credible witness, 
 they might act upon his testimony with 
 respect to others of the defendants, 
 though as far as his evidence affected 
 them he had received no confirmation; 
 and all the defendants were convicted. 
 But to the argument used by Mr. Starkie 
 it may be answered that the whole prac- 
 tice of requiring corroboration is founded 
 on the supposition that there are degrees 
 of credibility, and that an accomplice, . 
 though not absolutely incredible, is only 
 credible when confirmed; and that he 
 will only speak the truth in part is just 
 as probable as that he will not speak the 
 truth at all. And this is the view that 
 has been taken in the majority of the 
 cases; thus, in R. v. Wells, M. & M, 
 326, where an indictment was preferred 
 against several as principals and acces- 
 sories, the case was proved by the testi- 
 mony of an accomplice, who was con- 
 firmed as to the accessories, but not as 
 to the principal; Littledale, J., advised 
 the jury that the case ought not to be 
 considered as proved against the princi- 
 pal, and that all the prisoners ought, 
 I C. of L.— 6 ' 81 
 
 therefore, to be acquitted. So in R. V, 
 Morris, 7 C. & P. 270, on an indictment 
 agaiijst A as principal and B as receiver, 
 where the evidence of an accomplice 
 was corroborated as against A, but not as 
 against B, Alderson, B., thought that it 
 was not sufficient; and in R. v. Stubbs, 
 25 L. J., M. C. 16, Jervis, C. J., said, 
 '"There is another point to be noticed; 
 when an accomplice speaks as to the 
 guilt of three prisoners, and his testimony 
 is confirmed as to two of them only, itis- 
 proper, I think, for the judge to advise 
 the jury that it is not safe to act on hiS' 
 testimony as to the third person in re-- 
 spect of whom he is not confirmed; for 
 the accomplice may speak truly as to all 
 the facts of the case, and at the same 
 time in his evidence substitute the third 
 person for himself in his narrative of the 
 transaction." 
 
 By whom to he corrohorated. — The 
 practice of requiring the evidence of an 
 accomplice to be confirmed appears to- 
 apply equally when two or more accom- 
 plices are produced against a prisoner. 
 In a case where two accomplices spoke 
 distinctly to the prisoner, Littledale, J., 
 told the jury that if their statements were 
 the only evidence, he could not advise 
 them to convict the prisoner, adding 
 that it was not usual to convict on the 
 evidence of one accomplice without con- 
 firmation, and that in his opinion it made 
 no difiference whether there were more 
 accomplices than one. R. v. Noakes, 5 
 C. & P. 326. Sed qu. In one case it 
 was held by Mr. Justice Park that a 
 confirmation by the wife of an accom- 
 plice was insufiicient, as the wife and the 
 accomplice must be considered as one 
 for this purpose. R. v. Neale, 7 C. & P. 
 168. See also R. v. Jellyman, 8 C. & P. 
 604. See note 4, ante, p. 79. 
 
 1, When, in addition to the confession' 
 of a defendant, there is proof of circum- 
 stances which, although they may have 
 an innocent construction, are nevertheless 
 calculated to suggest the commission of 
 the crime charged, and for the explana- 
 tion of which the confession furnishes the 
 key, the case cannot be taken from the 
 jury for a non-compliance with the statute 
 — § 395. Code Crim. Pro. —which declares 
 that a defendant's confession "is not 
 sufficient to warrant a conviction without 
 additional proof that the crime charged 
 has been committed." Peoples. Jaehne^ 
 7 East'n Repr. (N. Y.) 290. 
 
At Law. ACCIDENT. Test of Liability. 
 
 not legally entitled to that effect, it is a subject for exception and 
 ground for a new trial.* 
 
 A confession is to be treated as evidence of the corpus delicti ; in 
 other words, as competent proof of the body of the crime, though 
 insufficient without corroboration to warrant a conviction.* 
 
 Evidence of good character is always admissible in defence.^ 
 
 accident. see act of god ; contracts ; carriers ; equity ; 
 Homicide; Mistake; Municipal Corporations; Neg- 
 ligence ; Railroads ; Trespass ; Shipping. 
 
 1 . Accident at Law. 
 
 2. Accident in Equity. 
 
 1. At Law — Definition. — An accident is an event from an unknown 
 cause, or an unusual and unexpected event from a known cause; a 
 chance, or casualty.* To constitute an accident, in the legal sense 
 of the word, the casualty must be such as the defendant could not 
 have avoided by the use of the kind and degree of care necessary 
 to the exigency and in the circumstances in which he was placed.* 
 
 Test of Liability, — The test of liability for the result of an acci- 
 dent turns upon the fact whether the person causing the accident 
 was guilty of negligence or not. If so, he is liable for the result 
 of his negligence, unless the plaintiff was also guilty of contribu- 
 tory negligence ; but if no negligence can be shown, and the acci- 
 dent occurred in the prosecution of a lawful act, no action, civil 
 or criminal, can be supported for an injury arising therefrom.® 
 
 Any fact or circumstance which tends is crushed, and the employees and pas- 
 
 to corroborate any material part of the sengers are killed, that is an unusual and 
 
 testimony of an accomplice is admissible unexpected event from a known cause, 
 
 for what it is worth, although it may not and therefore an accident. But if the 
 
 inculpate the accused on trial. State v, track is out of order and the engine 
 
 Maney, 2 N. Eng. Repr. (Conn.) 926. worn and unmanageable, and on account 
 
 In Roberts v. State, 55 Ga. 220, It is thereof there is the like result as above 
 
 ruled that "light circumstances, such as stated on the good road, that is not an 
 
 constant and easy access to the place unusual and unexpected event, but a 
 
 whence the goods are stolen, the defend- usual and expected event from such a 
 
 ant's presence thereabouts when the cause : it is not an accident, but it is 
 
 goods are missed, the fact that he drove negligence. Crutchfield v. Richmond, 
 
 a single dray there, and that such a dray etc., R. Co., 76 N. Car. 320. An acci- 
 
 was seen being unloaded, about the break dent may happen from an unknown 
 
 of day, where the goods were found, may cause; but it is not essential that the 
 
 be weighed by the jury as corroborating cause should be unknown. It may be an 
 
 proof." unusual result of a known cause, and 
 
 1. Com. V. Holmes. 127 Mass. 424; s. therefore unexpected by the party, 
 c, 34 Am. Rep. 391; Com. v. Bosworth, Schneider v. Provident L. Ins. Co., 24 
 22 Pick. (Mass.) 397. Wis. 28 ; s. c, i Am. Rep. 157. It does 
 
 2. Peop,le V. Jaehne, 7 East'n Repr. not include the ordinary misfortunes in 
 (N. Y.) 290. business. Langdon j/. Bowen, 43 Vt. 512. 
 
 3. U. S. V. Gunnell, 3 Cent. Repr. (D. S. Brown v. Kendall, 6 Cush. (Mass.) 
 0764. 292. See Chase I/.. Barrett, 4 Paige (N. 
 
 Authorities for Accessory. — -Bishop's Y.), 148; Jones v. Woodhull, i Root 
 
 Crim. Law; Wharton's Crim. Law; Des- (Conn.), 298; Brown v. Elliott, 17 N. J. 
 
 ty's Crim. Law; Wharton's Crim. Evi- Eq. 353; Morris v. Platt, 32 Com. 75; 
 
 dence; Roscoe's Crim. Evidence. Schneider v. Provident Ins. Co., 24 Wis. 
 
 4. Thus, if a railroad-bed, engine, and 28. 
 
 cars are in good order, and the engineer 6. In Brown v. Kendall, 6 Cush. 
 and other attendants are skilful and care- (Mass.) 292, Shaw, C. J., laid down the 
 ful, and yet the rail breaks and the train rule that "the plaintiff must come pre- 
 
 83 
 
At Law. 
 
 ACCIDENT. 
 
 Test of Liability. 
 
 This rule applies to injuries to the person ;i to property, as by 
 the leakage of water from a neighboring dam or reservoir ;* the 
 
 pared with evidence to show that the in- 
 tention was unlawful or that the defend- 
 ant was in. fault." Compare Morgan v. 
 Cox, 22 Mo. 373; s. c.,66Am. Dec. 623; 
 Conway v. Reed, 66 Mo. 355. 
 
 1. The defendant having interfered to 
 part his dog and the plaintiff's, which 
 were fighting, in raising his stick for that 
 purpose accidentally struck the plaintiff 
 in the eye, severely injuring him. Held, 
 that he was not liable. Brown v. Ken- 
 dall, 6 Cush. (Mass.) 292. 
 
 The defendant threw a stone at plain- 
 tiff's daughter and put out her eye. It 
 appeared that the injury was accidental. 
 Ileld, the plaintiff could not recover. 
 Harvey v. Dunlop, Hill & D. Sup. (N. Y.) 
 
 193 
 
 One hunting in a wilderness is not 
 bound to anticipate the presence of an- 
 other man, and he is not liable for an in- 
 jury caused unintentionally by him to a 
 person of whose presence he was not 
 aware. Bizzeil v. Booker, 16 Ark. 308. 
 
 The defendant injured a child on the 
 highway by running over him. Held, 
 that, under the circumstances, he was 
 not liable. Hartfield v. Roper, 21 Wend. 
 (N. Y.) 615. See Homicide. 
 
 Several persons being together had a 
 playful altercation, during which one of 
 them, in sport, pointed an old pistol, 
 thought to be unloaded, at another. It 
 ■went off and killed the latter. Held, 
 that the person causing the death was 
 not guilty of involuntary manslaughter. 
 Robertson -u. State, 2 Lea (Tenn.), 239. 
 
 W., bemg on board a ship, and B. in 
 a boat, alongside, had a dispute about 
 payment for some goods, both being in- 
 toxicated. W., to- get rid of B., pushed 
 away the boat with his foot; B., reaching 
 out to lay hold of a barge to prevent his 
 boat from drifting away, overbalanced 
 himself, fell into the water, and was 
 drowned. Held, W. was not guilty of man- 
 slaughter. R. V. Waters, 6 C. & P. 328. 
 
 The defendant was an ignorant quack 
 who undertook to cure a man and gave 
 him emetics until he died. Held, that if 
 the prisoner acted with an honest inten- 
 tion and expectation of curing the de- 
 ceased by this treatment, although death, 
 unexpected by him. was the consequence, 
 he was not guilty of manslaughter. Com. 
 ■V. Thompson, 6 Mass. 134. 
 
 Plaintiff, in defending himself from an 
 assault, wounded a bystander. Held, not 
 liable. Morris v. Piatt, 32 Com. 75. 
 Compare Welch v. Durand, 36 Conn. 
 182; s. c, 4 Am. Rep. 55. 
 
 A child came upon the defendant's 
 premises and fell into an uncovered cis- 
 tern. Held, not liable. Hargreaves v. 
 Decon, 25 Mich. i. 
 
 See, generally, R. v. Murray, 5 Cox C. 
 C. 509; R. V. Maslin, 6 C. & P. 396; R. v. 
 Dalloway, 2 Cox C. C. 273; R. v. Wil- 
 liamson, 3 C. & P. 635; R. V. Spenser, 
 ID Cox C. C. 525: In re Finney, 12C0X 
 C. C. 625; R. V. Macleod, 12 Cox C. C. 
 535; R. V. Noakes, 4 F. & F. 921; R. v. 
 Van Butchell, 3 C. & P. 629; Kohn v. 
 Lovett, 44 Ga. 251; Roulston v. Clark, 3 
 E. D. Smith (N. Y.), 366; Zoebisch v. 
 Tarbell, 10 Allen (Mass.), 385 ; Frost v. 
 Grand Trunk R. Co., 10 Allen (Mass.), 
 387; Victory v. Baker, 67 N. Y. 366; 
 Murray !(. McLean, 57 III. 378; Henkel 
 V. Murr., 31 Hun (N. Y.), 28; Carter v. 
 Columbia, etc., R. Co. , 19 Shand (S. Car.), 
 20; s. c, 45 Am. Rep. 754; Cahill v. 
 Layton, 57 Wis. 600; s. c. Am. Rep. 46; 
 Ex-parte Stell, 4 Hughes (U. S.). 157; 
 Miles T/. Atlantic, etc., R. C., 4 Hughes 
 (U. S.), 172; Hounsell v. Smyth, 7 C. B. 
 N. S. 731; Stone v. Jackson, 16 C. B. 
 199; Bolch V Smith, 7 Hurl. & N. 736; 
 Gautret v. Egerton, L. R. 2 C. P. 371; 
 Beatty v. Gilmore, 16 Pa. St. 463; Bush 
 V. Johnston, 23 Pa. St. 209: Beach v. 
 Frankenburg, 4 W. Va. 712; Beardsley v. 
 Swann, 4 McLean (U. S.). 333; Burton v. 
 Davis, 15 La. Ann. 448; Hannon v. Ag- 
 new, 96 N. Y. 439; Converse v. Walker, 
 30 Hun (N. Y), 566; Sikes v. Sheldon, 
 58 Iowa, 744; Wright v. Clark. 50 Vt. 
 130; i. c, 28 Am. Rep. 496; Gillespie !<. 
 McGowan, 100 Pa. St. 144 ; s. c, 45 Am. 
 Rep. 365; Yarnall v. St. Louis, etc., R. 
 Co., 10 Am. & Eng. R, R. Cas. 726; s. c, 
 75 Mo. 575; Lary v. Cleveland, etc., R. 
 Co., 78 Ind. 323; s. c, 41 Am. Rep. 572; 
 Union S. T. Co. v. Rourke, 10 111. App. 
 474; Hearne v. St. Charles St. R. Co., 
 34 La. Ann. 160. 
 
 2. Where water from a newly con- 
 structed reservoir broke through some 
 old vertical shafts apparently filled with 
 earth and flooded a mine, which ran to 
 passages connected with the old shafts, 
 held, that the constructor of the reservoir 
 was liable for damage caused. Fletcher 
 V. Rylands, L. R. I Exch. 265. Black- 
 burn, J., said: "We think the true rule 
 of law is that the person who, for his own 
 purposes, brings on his lands and col- 
 lects and keeps there anything likely to 
 do mischief if it escapes is prima facie 
 answerable for all the damage which is 
 the natural consequence of its escape." 
 This doctrine was repudiated in Losee v. 
 
 83 
 
At law. 
 
 ACCIDENT. 
 
 Test of Liability. 
 
 explosion of a steam-boiler ;i sparks emitted from a steam- 
 dredge, causing neighboring property to take fire ;** or from a 
 steamboat ;^ or a locomotive ;* or from the use of a steam- 
 Ivhistle ;^ or the noises of a passing train ;® or from the use of 
 fire upon one's premises/ or lights ;^ or injuries resulting from 
 the use of horses ;® or by animals fercz naturce,^^ or domestic ani- 
 
 Buchanan, 51 N. Y. 476; s. c, 10 Am. 
 Rep. 623, where it was held that one who 
 erected upon his premises a steam boiler, 
 having in it no defect linown to him or 
 discoverable by the application of known 
 tests, and who operated it with care and 
 skill, was not answerable to an adjacent 
 proprietor for damages caused by its ex- 
 plosion. " Here, If one builds a dam, 
 etc., and the lands of a neighbor are thus 
 flooded, he is not liable for the damage 
 without proof of some fault or negligence 
 on his part." To the same effect are 
 Garland v. Towne, 55 N. H. 57, and 
 Marshall v. Wellwood, 38 N. J. L. 339. 
 Compare Ball v. Nye, gg Mass. 582; Wil- 
 son V. New Bedford. 108 Mass. 261; 
 Gorham v. Gross. 125 Mass. 232; Cahill 
 V. Eastman, 18 Minn. 324. 
 
 1. Losee v. Buchanan, 51 N. Y. 476^ 
 s. c, 10 Am. Rep. 623; Spencer z/. 
 Campbell, 9 Watts & S. (Pa.) 32; U. S. 
 V. Taylor, 5 McLean (U. S.), 22; Marshall 
 V. Wellwood. 38 N. J. L. 339; R. v. 
 Gregory, 4 F. & F. 153. Compare Fay 
 V. Davidson, 13 Minn. 523. 
 
 3. Hinds V. Barton, 25 N. Y. 544; 
 Teall V. Barton, 40 Barb. (N. Y.) 137. 
 
 3, Cook V. Champlain Trans. Co., i 
 Den. (N. Y.) 137. See Read v. Morse, 
 34 Wis.,315; Crandall v. Goodrich Traps. 
 Co., 16 Fed. Repr. 75. 
 
 4. The test in the case of a chartered 
 railroad company is whether in using its 
 engines it fails in the diligence good 
 specialists in this department are accus- 
 tomed to exercise, and the burden is on 
 the plaintiff to show negligence. Flynn 
 V. San Francisco R. , 40 Cal. 14; Rood 
 V. R., 18 Barb. (N. Y.) 80; Read. R. v. 
 Yeiser, 8 Pa. St. 366; Aldridge v. R., 
 3 M. & G. 515; Morris & E. R. Co. v. 
 State, 36 N. J. 553; Field v. N. Y. Cent. 
 R. Co., 32 N. Y, 33g; 4 West. Jur. 333; 
 5 Am. Law Rev. 208. 
 
 This rule is otherwise as to unchartered 
 companies where damage caused by the 
 emission of sparks is in itself evidence of 
 negligence. Jones v, Festiniog R. Co., 
 3 Q- B. 733. 
 
 6. Hahn v. Southern Pac. R. Co., 51 
 Cal. 605. 
 
 6. Coy V. Utica, etc., R. Co., 23 Barb. 
 (N. Y.) 643; Phila., etc., R. Co. v. 
 Stinger, 78 Pa. St. 219J Hall v. Brown, 
 
 54 N. H. 495; Norton v. Eastern R, Co., 
 113 Mass. 366; Favor v. Boston, etc., R. 
 Co., 114 Mass. 350; Culp V. Atchison, 
 etc., R. Co,, 17 Kan. 475; Baltimore, 
 etc., R. Co. V. Thomas, 60 Ind. 107. 
 
 7. In. Clark v. Foot, 8 Johns. (N. Y.) 
 422, the rule is thus laid down: " If A 
 sets fire to his own fallow ground, as he 
 may lawfully do, which communicates to 
 and fires the' woodland of B. his neigh- 
 bor, no action lies agaiu'st A, unless 
 there was some negligence or misconduct 
 in him or his servant." 
 
 Tourtellot v. Rosebrook, 11 Mete. 
 (Mass.) 460; Karnard v. Poor, 21 Pick. 
 (Mass.) 378; Batchelder v. Heagan, 18 
 Me. 32; Hewey -j. Nourse, 54 Me. 256; 
 Eraser v. Tupper, 29,Vt. 409; Miller v. 
 Martin, 16 Mo. 50S; Dewey v. Leonard, 
 14 Minn. 153; Bizzell 71. Booker, 16 Ark. 
 308; Fahn v. Reichart. 8 Wis. 255; Lan- 
 sing V. Stone, 37 Barb. (N. Y.) 15; 
 Simons v. Morrier. 29 Barb. (N. Y.)4I9; 
 Hind V. Barton, 25 N. Y. 544; Case v. 
 Hobart, 25 Wis. 654; Dean v. McCarty, 
 2 Upp. Can. Q. B. 448; Gillson v. North 
 Gray R. Co., 33 Upp. Can. Q. B. 129; 
 Achenbach v. Johnston, 84 N. Car. 264. 
 Compare Kripper v. Biebel, 28 Minn. 139; 
 Reiper v. Nichols, 31 Hun (N. Y.), 401; 
 Read v. P. R, Co., 44 N.J. L. 280; Aver 
 V. Starkie, 30 Conn. 304 (under statute). 
 
 8. Wood V. Chicago, etc., R. Co., 51 
 Wis. 196, 
 
 9. A person whose .horse, frightened 
 by a locomotive, became uncontrollable, 
 ran away with him upon the land of an- 
 other and broke a post there is not liable 
 for the damage. Brown v. Collins, 53 
 N. H. 442. See, generally, Bigelow v. 
 Reed, 51 Me. 325; Unger w. 42d St. R. 
 Co.. 51 N. Y, 497; Strouse v. Whittlesey, 
 41 Conn. 559; Center v. Collins, 17 Barb. 
 (N. Y.) 94; Goshorn v. Smith, 92 Pa. St. 
 435; Goodman v. Taylor, 5 C. & P. 410; 
 Holmes v. Mather, L. R. 10 Exch. 261. 
 See Vincent », Stinehour, 7 Vt. 62; s. k.., 
 29 Am. Dec. 145. 
 
 10. As bees. Earl v. Van Alstine, 8 
 Barb. (N. Y.) 630. 
 
 Rats are, it seems, a necessary evil in 
 navigation, and their presence therefore 
 in a ship in reasonable numbers does not 
 render her unseaworthy. Their action 
 is not an act of God, but it is an inevita- 
 
 84 
 
In Equity. 
 
 ACCIDENT. 
 
 Extent of Jurisdiction. 
 
 mals ;i or to domestic animals ;*" or from the handling of danger- 
 ous goods in ignorance of their character -^ or from ice or snow 
 upon the sidewalk in front of the defendant's premises ;* or falling 
 from the roof of an owner or occupier. ** 
 
 2. In Equity. — The jurisdiction of equity extends to relief in 
 many cases of accident. In its equitable sense the word has been 
 defined as " an unforeseen and injurious occurrence not attribut- 
 able to mistake, neglect, or misconduct." ® 
 
 Extent of Jurisdiction. — This jurisdiction may be grouped under 
 three heads : where bonds, promissory notes, etc., are lost or de- 
 stroyed ;'' where the obligor in a bond is unable through some ac- 
 cident to pay the penalty named therein, — the remedy in this case 
 having been extended to all cases of forfeiture and penalties, irre- 
 spective of accident ;^ and where a power created by way of use has 
 
 ble accident; and therefore if they gnaw 
 a hole in the ship and let in the sea- 
 water, this is a "danger or accident of 
 the seas" within the meaning of the or- 
 dinary exception in a charter-party, and 
 the owners are not liable. Pandorf v. 
 Hamilton, L. R. l6 Q. B. D. 629. Com- 
 pare Carstairs v. Taylor, L. R. 6 Ex. 217. 
 
 1. The owner of a domestic animal is 
 not in general liable for an injury com- 
 mitted by such animal, unless it be al- 
 leged and shown that the defendant had 
 notice of its vicious propensities. Van 
 Leuven v. Lyke, i N. Y. 515. But the 
 owner of a mischievous dog will be liable 
 even as regards a trespasser who is 
 bitten in the daytime by the animal, it 
 being at large on its master's premises. 
 Loomis V. Terry, 17 Wend. (N. Y.) 496. 
 
 2. .Bush V. Brainard, i Cow. (N. Y.) 78; 
 Munger v. Tbnavvanda R. Co., 4 N. Y. 
 34^; Knight v.- Abert, 6 Pa. St. 472; 
 Leseraan v. S. Car. R. Co., 4 Rich. L. 
 (S. Car.) 413; Hess v. Lupton, 7 Ohio, 
 216; Aurora, etc., R. Co. w. Grimes, 13 
 111. 587; Illinois, etc., R. Co. z/.Carraher, 
 47 I"- 333: Durham v, Musselman, 2 
 Blackf. (Ind.) 96; Union Pacific R. Co. 
 V. Rollins, 5 Kans. 157; Caulkins v. 
 Matthews, 5 Kans.'igi; Maltbyw. Dihel, 
 5 Kans. 430; Hughes v. Hannibal, etc., 
 R. Co., 66 Mo. 325; Turner v. Thomas, 
 71 Mo. 596. Compare Young v. Harvey, 
 16 Ind. 314; Wright, z;. Clark, 50 Vt. 130; 
 s. c, 28 Am. Rep. 496. 
 
 3. Parrot v. Wells. Fargo & Co., 15 
 Wall. (U. S.) 524; Pierce v. Winsor, 2 
 Cliff. (U. S.) 18. See Thomas v. Win- 
 chester, 6 N. Y. 397. 
 
 4. Flynn v. Canton Co., 40 Md. 312; 
 s. u., 17 Am. Rep. 603; Kirby v. Boyl- 
 ston Market Assoc, 14 Gray (Mass.). 249; 
 Van Dyke v. Cincmnati, i Disney (Ohio), 
 53*2; Chambers z/. Ohio L. & T. Co., i 
 Disney (Ohio), 327; Moore v. Gadsden, 
 
 93 N. Y. 12; s. c, 41 Am. Rep 352; 
 Wenzlick v. McCotter, 87 N. Y. 122; s. c, 
 41 Am. Rep. 358; Hartford v. Talcott, 
 48 Conn. 525; s. c, 40 Am. Rep. 189. 
 
 5. Kirby z;. Boylston Market Assoc, 14 
 Gray (Mass.), 249. Compare Shipley v. 
 Fifty Associates, loi Mass. 251; Garland 
 V. Towne, 55 N. H. 55. 
 
 6 Smith's Eq. 36. But equity will not 
 interfere where the equity of the defendant 
 is equal to or greater than that of the 
 party invoking its aid, as where the for- 
 mer is a bona fide purchaser for value, or 
 the latter a mere volunteer. Story's Eq. 
 Juris. (13th Ed.) § 106 et seq. 
 
 t. A bond of indemnity against the 
 future discovery of lost instruments may 
 be always demanded from the complain- 
 ant both in equity and under the com- 
 mon-law system of most of the States. 
 Bridgeford v. Masonville Mfg. Co., 34 
 Conn. 546 ; Almy v. Reed, 10 Cush. 
 (Mass.) 421 ; Bispham on Equity, § 
 1^7. Re-execution of the instrument 
 may be ordered or an alternative decree 
 framed providing for the case of the fu- 
 ture discovery of the lost instrument. 
 Story's Eq. Juris. (13th Ed.) § 84. Where 
 a note is not negotiable or is overdue at 
 the time of its loss, the remedy is at 
 law and not in equity. Byles on Bills, 
 300-1 and notes ; Wright v. Maidstone, 
 I R. & J. 701 ; Savannah Nat. Bank v. 
 Haskins, loi Mass. 370. 
 
 8. Equity, considering the penalty sim- 
 ply as a security for the principal debt, 
 on payment of the latter with interest, 
 discharges the obligor from further lia- 
 bility. Where the measure of .the injury 
 is not computable, equity will-not relieve 
 against payment of an amount agreed on 
 as "stipulated damages," the question 
 being, however, one purely of intention, 
 and the mere use of the words "stipu- 
 lated damages " not determining which 
 
 85 
 
In Equity. 
 
 ACCIDENT. 
 
 Extent of Jurisdiction. 
 
 been defectively executed. ^ There are other cases where equity 
 will relieve a party from the effect of an unforeseen occurrence, 
 some of which are referred to in the note.** 
 
 rule to apply. Nesbit v. Brown, i Dev. 
 Eq. (N. Car.) 30 ; Rogan v. Walker, i 
 Wis. 527 ; 3 Lead. Cas. Eq. (3d Am. Ed.) 
 683 ; Streeper v. Williams, 12 Wright 
 (Pa.) 454 ; Chase v. Allen, 13 Gray 
 (Mass.) 45. Where there is an agree- 
 ment to reduce a debt in case of prompt 
 payment, a party who does not fulfil the 
 condition will not be relieved against 
 payment of the whole original amount. 
 Thompson v. Hudson, L. R. 4 H. L. 
 Cas. I ; Sterne v. Beck, 11 Week. Rep. 
 7gi ; Robinson v. Loomis, 51 Pa. St. 
 78. 
 
 A court of equity will not lend its aid 
 actively to enforce a forfeiture, but will 
 leave the parties to their legal remedies. 
 Oil Creek R. Co, v. Atlantic, etc., R. Co., 
 54 Pa. St. 65 ; Livingston v. Tompkins, 
 4 John. Ch. (N. Y.) 415 ; 4 Kent's Com. 
 130. 
 
 1. Relief will be granted both where 
 the instrument itself is informal and 
 where there has been a defective execu- 
 tion of a formal instrunient. Toilet v. ■ 
 Toilet, I Lead. Cas. Eq. 234 ; Garth v. 
 Townsend, L. R., 7 Eq. 220; Morse v. 
 Martin, 34 Beav. 200. In favor of pur- 
 chasers for value, mortgagees, lessees, 
 creditors, a wife, a legitimate child, or a 
 charity, but not in favor of a husband, 
 grandchild, or of the settler himself. 
 Thorp V. McCuUum, i Gilm. (111.) 615 ; 
 In re Dyke's Estate, L. R. 7 Eq. 337 ; 
 King V. Roney, 5 Ir. Ch. 64 ; Bixby v. 
 Eley, 2 Bro. C. C. 325 ; Toilet v. Toilet, 
 I Lead. Cas. 22g ; Pepper's Will, I Pars. 
 Eq. 436 ; Porter v. Turner, 3 S. & R. 
 (Pa.) 114. See, however, as to "grand- 
 children," Huss V. Morris, 63 Pa. St. 
 367. This rule does not apply to powers 
 in trust, the exercise of which is obliga- 
 tory. Brown v. Higgs, 8 Ves. 570 ; 
 Brown v. Pocock, 6 Sim. 257 ; Penny v. 
 Turner, 2 Phil. 493 ; White's Trusts. 
 Johns. 656 ; Whiting v. Whiting, 4 Gray 
 (Mass.), 240. 
 
 2 Insufficient Assets, etc. — Where an 
 executor pays debts or legacies, and it 
 turns out that from some unexpected oc- 
 currence the assets are insufficient for all 
 demands, the unpaid creditor or legatee 
 will be permitted to recover from the 
 
 executor, and the latter from his distribu- 
 tee. So, where a former will is cancelled 
 on an unfounded presumption that a later 
 one is duly executed ; where boundaries 
 have been accidentally confused, etc. In 
 all these cases suitable relief will be 
 granted. See Story's Eq. Juris. (131I1 
 Ed.) § 90 <:/ seq. 
 
 Destruction of Demised Premises hy Tire. 
 — But equity will not afford relief so as 
 entirely to release a person from doing a 
 thing which he has expressly covenanted, 
 to do, but of which the performance, by 
 reason of some accidental occurrence, 
 has become unexpectedly burdensome ; 
 as where demised premises are destroyedr 
 by fire,, if the tenant has expressly cove- 
 nanted to pay rent, he will not be relieved 
 from doing so, though he has lost the en- 
 joyment of the premises. Fowler v. Bott, 
 6 Mass. 63; Hallett z/. Wylie, 3 John. 
 (N. Y.) 44 ; Brewer v. Herbert, 30 Md. 
 301. But if the hiring is of apartments 
 in a building, the lease is terminaied by 
 destruction of the building by fire. Stock- 
 well V. Hunter, It Mete. (Mass.) 448 ; 
 Graves v. Berdan, 26 N. Y. 498 ; Winton 
 V. Cornish, 5 Ohio, 477. Compare Hel- 
 burn V. Moffard, 7 Bush (Ky.), i6g. 
 
 Test in Such Cases. — The test is wheth- 
 er the continued existence of a specific 
 thing is a condition on which the parties 
 have contracted, — in which case, even 
 in the absence of any warranty, the par- 
 ties will be excused in case before the 
 breach performance becomes impossible 
 from the perishing of the thing without 
 default of the contractor; and the distinc- 
 tion is as much observed at law as in. 
 equity. See, for cases of such implied 
 condition. Dexter v. Norton, 47 N. Y. 62; 
 Wells V. Colman, 107 Mass. 514; Thomas 
 V. Knowles, 122 Mass. 22 ; Lovering "u.. 
 Buck Mt. Coal' Co., 54 Pa. St. 291. For 
 cases where such condition was held 
 wanting, see School District v. Dauchy, 
 25 Conn. 530; School Trustees v. Ben- 
 nett, 27 N. J. L. 513; Adams v. Nichols, 
 19 Pick. (Mass.) 275. 
 
 Authorities for Accident. — i Story's 
 Eq. Juris., 13th ed. 84 et seq.; 14 Am. 
 Law Rev. i; Thompson on Negligence; 
 Wharton on Negligence. 
 
 86 
 
Definition. ACCIDENT INSURANCE. Policy-Accidents 
 
 ACCIDENT INSURANCE. (See also ACCIDENT ; CONTRACTS ; 
 Contribution ; Insurance ; Negligence ; Proximate and 
 Remote Cause.) 
 
 1. Definition. Distinction between. {b) Conformity to Common Car- 
 
 Accident and Other Insurance. rier's Rules. 
 
 2. The Policy. (c) Death Caused by Taking Poi- 
 
 3. Definition of an Accident in its Ap- son. 
 
 plication to Insurance. (d) Travelling by Public or Pri- 
 
 4. Instances of what are Accidents. vate Conveyance. 
 
 5. Instances of what are not Accidents. (e) Suicide while Insane. 
 
 6. Proximate and Remote Cause in 8. Voiding the Policy by a Change of 
 
 Accident Insurance. Occupation. 
 
 7. Stipulations in the Policy Limiting 9. What is Total Disability. 
 
 the Liability of the Company. 10. Notice of Accident to the Cojnpany. 
 {a) Due Diligence for Personal 1 1 . Measure of Damages. 
 Safety. 12. Miscellaneous Matters. 
 
 1. Definition. — Distinction between Accident and Other Insur- 
 ance.— Acdid&nt insurance is an insurance against injury or loss of 
 life, which, though applied to a particular class of risks, depends 
 upon essentially the same principles as other insurance. It is said 
 in effect and analogy to more nearly resemble fire than life insur- 
 ance, and to be truly a provision for indemnity, except in cases of 
 death, when it becomes a contract to pay a fixed sum of money 
 upon the happening of death caused by accident.^ The whole 
 matter of accident insurance has been regulated in England by 
 statute,* which limits the right to effect such insurance to those 
 over twelve years of age. 
 
 2. The Policy. — In England, accident policies, like marine policies, 
 are divided into time and voyage policies. The first-named are 
 by the year or for life, and can only be distinguished from ordinary 
 life policies in the nature of the risk. They are not limited as to 
 place, and cover all forms of accident. The voyage policies may 
 or may not be limited as to time, and are always limited as to space 
 to a prescribed journey.^ 
 
 In the United States the policy is usually a contract by which 
 the company agrees to pay a stipulated sum per week during dis- 
 ability caused by accident, and a gross sum in case of death by 
 accident.* 
 
 3. Definition of an Accident— An accident, in its application to 
 insurance policies, has been defined as an injury which happens by 
 reason of some violence, casualty, or vis major to the assured, with- 
 out his design or consent or voluntary co-operation.* 
 
 1. 7 American Law Rev. 585. The central idea of such a policy is 
 
 This is not a contract of indemnity, partial Indemnity against accident. Hill 
 
 . because a person cannot be indemnified v. Hartford Ins. Co., 22 Hun(N. Y.). 187. 
 
 for the loss of life as he can in case of a 2. 27, 28 Vict. c. 125; Porter's Laws of 
 
 house or shop. Alderson, B., in Theobald Insurance (1884), c. 24, p. 431. 
 
 w. Railway Passengers' Assur. Co., 10 Ex. 3. Porter's Laws of Insurance, p. 434. 
 
 R. 45; 23 L. J. Ex. 249; 23 L. T. 222; 18 4. Bliss on Life Insurance, § 395. 
 
 Jur, 583; 2 W. R. 528. But see Bradburn 5. 7 Am. Law Rev. 588. 
 
 V. The Great Western Railway Co., L. R. It is an unusual and unexpected result 
 
 10 Ex. i; 44 L. J. Ex. g; 31 L. T. (N. attending the" performance of a usual and 
 
 S.) 464; 23 W. R. 48. necessary act. It is any unexpected event 
 
 87 
 
Instances of what 
 
 ACCIDENT INSURANCE. 
 
 are Accidents. 
 
 4. Instances of what are Accidents. — The following have been 
 held, under the circumstances of each case, to be accidents : an 
 injury to the spine ; ^ drowning by falling into water in a fit, or so 
 falling because of an accidental wound (and the presumption in 
 such cases will be in favor of death by drowning and not by fits), 
 nor will suicide be presumed ; * falling across a railroad track in a 
 fit ; 3 hernia resulting from external violence ; * rupture of a blood- 
 vessel from over-exercise with Indian clubs ;^ peritonitis caused 
 
 which happens as by chance, or which 
 does not talie place according to the usual 
 course of things. North American Ins. 
 Co. V. Burroughs, 69 Pa. St. 43. 
 
 It is something which takes place with- 
 out any intelligent or apparent cause, 
 without design and out of course. Mal- 
 lory V. Travellers' Ins. Co., 47 N. Y. 52. 
 
 Any event which takes place without 
 the foresight or expectation of the person 
 acted upon or affected by the event. 
 Ripley v. Railway Passengers' Assurance 
 Co. (U. S. C. C, West. Dist. Mich. 1870), 
 2 Big. Cases, 738. 
 
 An event that takes place without one's' 
 foresight or expectation; an event which 
 proceeds from an unknown cause, or is 
 an unusual effect of a known cause, and' 
 therefore not expected. Schneider v. 
 Provident Life Ins. Co., 24 Wis. 28. 
 
 Railroad Accident — An accident occur- 
 ring in the course of travelling by rail- 
 way, and arising out of the fact of the 
 journey. It does not necessarily depend 
 upon any accident to the railway or ma- 
 chinery connected with it. Alderson, 
 B., in Theobald v. Railway Passengers' 
 Assurance Co., 10 Exch. 45. 
 
 The term " accidental," as used in an 
 accident policy, is used in its ordinary 
 ■sense, and means " happening by chance, 
 ■unexpectedly, ornot as expected." Barry 
 V. U. S. Mut. Ace. Assoc, 23 Fed. Rep. 712. 
 
 1. Injury to Spine. — Assured sprained 
 muscles of his back in lifting a heavy 
 weight, and was held entitled to recover 
 under a proviso that the injury must be 
 due to a material or external cause oper- 
 ating upon the person of the insured. 
 Martin v. Travellers' Co., i F. & F. 505. 
 
 8. Drowning. — In Trew v. Railway 
 Passengers' Assurance Co., 6 H. & N. 
 839, it was held that death by drowning 
 while bathing was an accident, and it 
 should be left to the jury to say whether 
 death resulted from the action of the water 
 or from natural causes. Where a man 
 while bathing in a pool only a foot deep 
 suddenly became insensible and fell face 
 downwards into the water and died, and 
 the condition of the body showed that he 
 breathed after the fall, the court held that 
 death was caused by the action of water 
 on the lungs, and that the falling was an 
 
 accident within the policy. Reynolds v. 
 Accidental Ins. Co., 18 W. R. H14; s. c, 
 22 L. T. (N. S.) 820. 
 
 Where a man is found dead in the wa- 
 ter, he may be presumed to have come to 
 his death by drowning, and not by fits. 
 Even if he fell into the water in a lit and 
 was thus drowned, the insurer would be 
 liable, as death would be caused by the ac- 
 tion of the water, and not by the fit. 
 Winspear v. Accidental, etc., Ins. Co., 6 
 L. R. (Q. B. Div.) 42; 43 L. T. 459; 29 
 W. R. 116. 
 
 Where an accidental wound caused the 
 insured to fall intp the water a^d be 
 drowned, this was still an accident. If a 
 man might have come to his death by ac- 
 cidental drowning or suicide, the pre- 
 sumption will be in favor of accident 
 rather than intention. Mallory v. Trav- 
 ellers' Ins. Co., 47 N. y. 52; s. c, 7 Am. 
 Rep. 410. 
 
 3. Accident Caused by Fits — Where a 
 man was seized with a fit and fell on the 
 railroad track from the platform in front 
 of an approaching train and was killed, it 
 was held that the cause of death was the 
 being run over, and not the fit. Lawrence 
 ■u. Accident Co., L. R. 7 Q. B. D. 216; 50 
 L. J. (Q. B.) 522; 29 W. R. 802. 
 
 4. Hernia from External 'Violence. — In 
 Fitton z/. Accidental Death Ins. Co., 17 
 C. B. (N. S.) 122, the deceased fell with 
 violence on the floor of his room, and 
 thereby produced an immediate rupture, 
 which resulted in strangulated hernia and 
 death after a surgical operation. It was 
 held that the policy, though excluding 
 hernia generally, must be construed to 
 mean hernia arising within the system in- 
 dependetly of external violence. 
 
 5. Rupture of Blood-vessel by Over-ex- 
 ercise. — In McCarthy v. Travellers' In- 
 surance Co., 8 Biss. C. C. 362, the death 
 was alleged to have occurred by reason 
 of the rupture of a blood-vessel, sustain- 
 ed while exercising with Indian clubs. 
 Held, that if the deceased used the clubs 
 for exercise in the ordinary way, and 
 without the interference of any unusual 
 circumstances, the injury was not acci- 
 dental; but if there occurred any unfore- 
 seen accident or involuntary movement ' 
 of the body which, in connection with the 
 
 88 
 
Instances of what 
 
 ACCIDENT INSURANCE. 
 
 are not Accidents, 
 
 by an accidental blow ; ^ attack upon insured by highwaymen while 
 pursuing his journey on foot ; * stepping off a train of cars and 
 falling through a concealed hole in a bridge ; ' falling from the 
 cars while walking in sleep;* death from an overdose of medicine 
 taken by mistake ;^ death of an insane person who commits sui- 
 cide by hanging is an accidental death.** 
 
 5. Instances of what are not Accidents. — The following have been 
 held, under the circumstances of each case, not to be accidents : 
 Sunstroke;'^ rupture caused by jumping from railway train.** 
 
 With these decisions may be compared various others, constru- 
 ing the "voluntary exposure to obvious danger" clause in accident 
 policies. Most of these cases exonerate the insurance company 
 from liability, because of the failure of the insured to comply with 
 
 use of the clubs, brought about the in- 
 jury, then such means were accidental 
 and within the terms of the policy. 
 
 1. Peritonitis caused by Accidental 
 Blow. — In North American Ins. Co. v. 
 Burroughs, 69 Pa. St. 43, the insured 
 while pitching hay was struck on the 
 bowels by the handle of the forli, which 
 slipped in his hands, and died from the 
 peritoneal inflammation which ensued. 
 The jury found the blow was an accident 
 and the cause of the death, and the court 
 sustained the verdict. 
 
 2. Attack by Highwaymen. — Where the 
 insured, while pursuing his journey on 
 foot, was attacked by highwaymen, the 
 question was as to whether this was an 
 accident. The court observes: " The in- 
 juries were effected by violence, but was 
 there any accident ? . . . Perhaps, in a 
 strict sense, any event which is brought 
 about by design of any person is not an 
 accident, because that which has accom- 
 plished the intention and design, and is 
 expected is a foreseen and foreknown re- 
 sult, and therefore not strictly accident. 
 Yet I am persuaded this contract should 
 not be interpreted so as thus to limit its 
 meaning; for the event took place unex- 
 pectedly and without design on Ripley's 
 part. It was to him a casualty, and, in the 
 more popular and common acceptation 
 of the word ' accident,' if not in its pre- 
 cise meaning, includes any event which 
 takes place without the foresight or ex- 
 pectation of the person acted upon or 
 affected by the event." , Ripley v. Rail- 
 way Pass. Ass. Co., 2 Bigelow L. & Ace. 
 Cas. 738. 
 
 3. Burkhard v. Travellers' Ins. Co., 
 102 Pa. St. 26,2. 
 
 4. Scheiderer v. Travellers' Ins. Co., 
 58 Wis. 13; s. c, 46 Am. Rep. 618. 
 
 5. Penfold v. Universal Life Co., 
 85 N. Y. 317; s. c, 39 Am. Rep. 660. 
 Compare Pollock v. United States Mut. 
 Assoc, 102 Pa. St. 230; Mutual Life Ins. 
 
 Co. V. Lawrence, 8 Brad. (111. App.)488. 
 
 6. Accident Ins. Co. of North America 
 V. Crandall (U. S. Sup. Ct., Error to 
 Circuit Court for District of Illinois, 
 March 7, 1887, not yet reported.) 
 
 7. Sunstroke. — Where a policy con- 
 tracted to pay to the representatives of 
 the insured, "in the event of his sustain- 
 ing any personal injury during the said 
 intended voyage, from, or by reason, or 
 in consequence of, any accident what- 
 soever." The insured died by sunstroke, 
 to which he did not knowingly and with- 
 out adequate motive expose himself, but 
 it was held that the defendants were not 
 liable, because his death could not be said 
 to have arisen from accident, within the 
 meaning of the policy. Cockburn, C. J., 
 remarked: "ItisdifBculttodefine the term 
 'accident,' as nsed in a policy of this na- 
 ture, so as to draw with perfect accuracy 
 a boundary line between injury or death 
 from accident, and injury or death from 
 natural causes, such as 'shall be of uni- 
 versal application. At the same time we 
 think we may safely assume that, in the 
 term 'accident,' as so used, some vio- 
 lence, casualty, or vis major, is necessar- 
 ily involved. We cannot think disease 
 produced by the action of a known cause 
 can be considered as accidental " Sin- 
 clair V. Maritime Passenger Assurance 
 Co., 3 El. & El. 478; 4 L. T. (N. S ) 15; 
 30 L.J. (Q. B.)77: 7 Jur. (N. S.) 367. 
 
 In American policies, sunstroke is usu- 
 ally excepted in express terms. 8 Alb. 
 L."J. 85. 
 
 8. Bupture by Jumping from Train. — 
 A rupture caused by jumping from a rail- 
 way train before it had stopped is not a 
 bodily injury effected through violent and 
 accidental means; the rupture is the re- 
 sult, and not the means; the injured man 
 meant to jump down and did so, and 
 nothing unforeseen happened in jumping 
 down. Southard v. Railway Passengers' 
 Assurance Co., 34 Conn. 574. 
 
 89 
 
Frozimate and 
 
 ACCIDENT INSURANCE. 
 
 Semote Cause. 
 
 this stipulation in the contract. They are of value, however, in 
 determining what the authorities consider to be death resulting 
 from accident.^ 
 
 6. Proximate and Remote Cause in Accident Insurance. — It is es- 
 sential to a recovery under a policy of accident insurance that the 
 accident shall be the proximate, and not the remote cause of injury 
 or death. An injury which is clearly the result of accident, but 
 which is simply the means of bringing into activity a dormant 
 disease, will not authorize a recovery! While this is, in brief, the 
 state of the law, the dividing line between proximate and remote 
 cause is always a narrow one, and the decision in the cases will 
 often depend upon extreme niceties of distinction as to facts.^ 
 
 1. Stone V. U. S. Casualty Co., 34 N. 
 J. Law, 371; Providence Life, etc., Co. 
 V. Martin, 32 Maryland, 310; Schneider 
 V. Providence, etc., Life Ins. Co., 24 
 Wis. 28; Tooley v. Railway Pass., etc., 
 Co., 3 Biss. (C. C.) 399; Sawtelle v. Rail- 
 way Pass. Assur. Co., 15 Blatchf. (C. C.) 
 216; Neill V. Travellers' Ins. Co., (U. C. 
 C. P.) 17 Canadian L. J. 44; Lowell v. 
 Accident Ins. Co., 3 Ins. L. J. 877; '5 
 Ins. L. J. 559; Wright v. Sun Mut. Ins. 
 Co., 29 U. C.(C. P.) 221; Tuttle V. Trav- 
 ellers' Ins. Co., 134 Mass. 175; s. c, 45 
 Am. Rep. 316; National Benef. Assoc, v. 
 Jackson, 114 111. 533; s. c, 13 Am. & 
 Eng. Corp. Cas. 597. 
 
 2. In ]ia.xrj v. U. S. Mutual Ace. Assoc. 
 (C.C. E. D. Wis. 1885), 23 Fed. Rep, 712, it 
 was shown that the deceased sustained an 
 accidental injury to an internal organ, 
 and it was held that if the injury neces- 
 sarily produced inflammation, and the in- 
 flammation produced a disordered condi- 
 tion of the injured part, whereby other 
 organs of the body could not perform 
 their natural and usual functions, and in 
 consequence of which the injured person 
 died, the original injury will be consid- 
 ered as the proximate and sole cause of 
 death; but if an independent disease or 
 disorder, not necessarily produced by the 
 injury, supervened upon the injury, or if 
 the alleged injury merely brought into ac- 
 tivity a then existing but dormant disor- 
 der ur disease, and death resulted wholly 
 or in part from such disease, the injury 
 cannot be considered the sole and proxi- 
 mate cause of death. 
 
 In Smith V. Accident Ins. Co., L. R. 5 
 Exch. 302, the asstired, while washing his 
 feet in an earthenware pan, and resting 
 them oh its edge, broke the pan and cut 
 his foot under the ankle against the sharp 
 side. He had always been a sober and 
 healthy man, and had never suffered from 
 erysipelas at any time. The wound was 
 carefully dressed, but five days afterwards 
 erysipelas set in between the ankle and 
 knee, about five or six inches above the 
 
 wound, and he died in three days of ery 
 sipelas, which was consequent upon the 
 wound, and for which there was no othei 
 known cause. The policy insured against, 
 all cuts, etc., "where such accidental in- 
 jury is the direct and sole cause of death 
 to the insured," but not against " erysipr, 
 elas or any other, disease or secondary, 
 cause or causes arising within the system 
 of the insured before, or at the time of,: 
 or following such accidental injury, 
 whether causing such death directly or 
 jointly with such accidental injury." A 
 majority of the court held that the com- 
 pany were protected by the condition, and 
 the case was distinguished from Fittonz'. 
 Accidental Death Itis. Co.. 17 C. B. (N. 
 S.) 122, because in that case no reference 
 was made t'o secondary causes (which 
 clause the company had inserted after 
 Fitton's case), and the hernia was there 
 instantaneously caused by the accident. 
 But Kelly, C. B., in his dissenting opin 
 ion. urges that the true effect of the con- 
 dition is to exempt the company only 
 where erysipelas arises within the system 
 and is collateral to the accident, and 
 wholly Independent of it. 8 Alb. L. J. 86. 
 In Harris v. Travellers' Ins. Co. (Su- 
 perior Court of Chicago, 1868) the de- 
 ceased was a fireman, who was accident 
 ally buried under a falling wall, but soon 
 rescued without apparent injury, and con- 
 tinued his work for three months, when 
 he look poison. In suit to recover the 
 insurance on the ground that the accident 
 rendered him insane, it was not only held 
 to be suicide if he was 'sane, hut, if he 
 was insane on account of the accident, 
 the death was held too remote to be cov^ 
 ered by the policy, which includes only 
 proximate results. See, generally, Trew 
 V. Railway Pass. Assur, Co., 6 H. & N. 
 839; Reynolds z/. Accidental, etc. Ins, Co., 
 18 W. R. 1141; s. c, 22 L. T. (N. S.)820; 
 Winspear v. Accidental, etc., Ins. Co., 
 6 L. R. (Q. B. Div.)42; 43 L. T. 459; 29 
 W. R, 116; Mallory v. Travellers' Ins. 
 Co., 47 N. Y. 52; s. c, 7 Am. Rep. 4iOj 
 
 90 
 
stipulations in Policy. ACCIDENT INSURANCE. Limiting LiabiUty. 
 
 7. Stipulations in the Policy Limiting the Liability of the Company. — 
 (a) The Party Insured is Required to Use all Due Diligence for 
 Personal Safety and Protection. — Policies of accident insurance con- 
 tain various clauses limiting the liability of the company. The 
 one which has been most frequently construed requires, in sub- 
 stance, that the insured shall use all due diligence for personal 
 safety and protection. It is not a breach of this condition to step 
 upon an insecure joist in tlie second floor of a house in course of 
 construction for the insured ;^ nor for an engineer of a locomotive 
 to attempt performance of what is properly the brakeman's duty, 
 viz., crossing the tender of his locomotive to apply the brakes upon 
 the next car ;'-* nor for a passenger to attempt to board a train of 
 cars in slow motion -^ but an attempt to pass from one car to an- 
 other at night may be unnecessary exposure ;* driving into a rail- 
 way yard and across tracks after warning of the danger is such 
 exposure, as is also walking on a railroad track on a dark and rainy 
 night.^ Where the insured by a voluntary act exposed himself 
 
 Lawrence v. Accident Co., L. R. 7 Q. B. 
 Div. 210; 50 L. J. (Q. B.) 522; 29 W. R. 
 802; Fiiton V. Accidental Death Ins. Co., 
 17 C. B. (N. S.) 122; McCarthy v. Trav- 
 ellers' Ins. Co., 8Biss. (C. C.) 362; North 
 Am. Ins. Co, v. Burroughs, 69 Pa. St. 43. 
 The party insured is required to use all 
 due diligence for personal safety and pro- 
 tection. , 
 
 1. In Stone v. U. S. Casualty Co., 34 
 N. J. L. (5 Vroom) 371, the person in- 
 jured stood upon a joist on the second 
 floor of a building which was being 
 erected for him, and it broke, causing 
 him to fall and be killed, but this was 
 held to be no want of due diligence. 
 
 2. In Providence Life, etc., Co. u. 
 Martin, 32 Maryland, 310, the engineer 
 of a locomotive slipped, fell, and was 
 killed while going into the tender to put 
 on a brake, which was properly the fire- 
 man's business, but he was held not lo 
 have been needlessly exposinghimself. 
 
 3. In Schneider v. Provident, etc.. 
 Life Ins. Co., 24 Wis. 28, it was held that 
 aij attempt to get upon the cars whilst 
 they are in slow motion is not wilful and 
 wanton exposure to unnecessary danger. 
 Sawyer v. U. S. Casualty Co. (Superior 
 Court of Mass., Worcester), 8 Am. L. R. 
 (N. S.) 233. 
 
 , In Tooley v. Railway Pass., etc., Co., 
 3 Biss. (C. C.) 399, the assured took a 
 ticket from A. to B. When the train 
 reached B. he got out, and the signal was 
 given to proceed to C, and the train had 
 begun to move. Assured then attempted 
 to get in whilst the train was in motion, 
 and was killed. It was held to be natural 
 and prudent for a man who wanted to go 
 on in the train to get in while it was 
 moving, and that the insurers were there- 
 fore liable. 
 
 4. A condition in a policy of accident 
 insurance providing against getting in 
 and out, etc., of moving cars and other 
 conveyances will not include mere pass- 
 ing from one part to another of a train 
 through which a passage was possible and 
 contemplated, but such passing may be 
 exposure to unnecessary danger, espe- 
 cially if done at night. Sawtelle v. Rail- 
 way Pass. Assurance Co., 15 Blatchf. (C. 
 C.) 216. 
 
 5. In Neill v. Travellers' Ins. Co. (U. 
 C. C. P.), 17 Canadian L. J. 44, the in- 
 sured, by driving into a railway yard and 
 across the tracks after having been warned 
 of danger, was held to have voluntarily 
 incurred unnecessary danger, and a ver- 
 dict for plaintiff was set aside and non- 
 suit entered. 
 
 In Lowell v. Accident Ins. Co., 3 Ins. 
 L. J. 877, the jury found that walking on 
 a railroad track on a dark and rainy 
 night, at a time when the deceased knew 
 that trains were frequently passing both 
 ways, was not an "obvious risk," but 
 the Lord Chief Justice said, " Very well, 
 that is a verdict for the plaintiff, but I 
 shall stay the execution, and if the ques- 
 tion is one of law for the judge, I should 
 decide it quite the other way, for 1 should 
 say the deceased was running a risk which 
 was very 'obvious' indeed." The ver- 
 dict was afterwards set aside. 5 Ins. L. 
 T. 55g. See also Wright v. Sun Mut. Ins. 
 Co., 29 U. C. (C. P.) 221. 
 
 In Tuttle V. Travellers' Ins. Co., 134 
 Mass. 175; s. c, 45 Am. Rep. 316, a pol- 
 icy of insurance against accident provided 
 that there should be no recovery for death 
 or injury in consequence of exposure to 
 obvious or unnecessary danger, and that 
 the insured should use nil diligence for 
 personal safety and protection. The in- 
 
 91 
 
Sipiilationa in Policy. ACCIDENT INSURANCE. Limiting Liability. 
 
 to a hidden danger, the existence of which he had no reason to 
 suspect, in stepping from a train of cars standing upon a draw- 
 bridge, he does not commit a breach of this condition ;! nor is it 
 -a breach of this clause for a traveller while asleep or in a dazed 
 -and unconscious condition to involuntarily walk to the platform 
 oi a car and fall therefrom.'-* Where a party, insured against 
 injuries effected through external, violent, and accidental means, 
 receives an injury while in the discharge of his regular duties as 
 yard-switchman or brakeman of a railway company, from which 
 he dies, a recovery cannot be defeated on the ground of voluntary 
 •exposure to danger, when the accident is one contemplated by the 
 parties to the insurance.^ 
 
 sured was killed by a railway train while 
 lie was running <jii the track in front of 
 -it, in the night, to gel on a train approach- 
 ing ia the other Uirection on a parallel 
 track. Held, that there could be no re- 
 covery. 
 
 1. in Burkhard v. Travellers' Ins. Co., 
 I02 Pa St. 262; ». c, 48 Am. Rep. 205, 
 -an, accident policy excepted death or in- 
 jury '■ by voluntary exposure to unneces- 
 sary danger," and "while walking or be- 
 ing on the road-bed or bridge of any rail- 
 way" The insured stepped off a railway 
 train stopped at a drawbridge af night, 
 "fell through a concealed hole in the 
 bridge and was killed. Held, not 
 'within the exceptions, and the com- 
 pany was liable. The court observes: 
 "" To make him guilty ol a ' voluntary 
 exposure to danger' he must intention- 
 •ally have done some act which reason- 
 able and ordinary prudence would pro- 
 nounce dangerous. The uncontradicted 
 ■evidence shows that several other pas- 
 sensers got out of the coach, and some 
 •flf them in advance of the insured. They 
 certainly apprehended no danger. It is 
 -customary for male passengers to alight 
 when a train stops for any length of time. 
 No notice was given to passengers that 
 it wa? dangerous to get out of the coach 
 where it stood. So far as appears, the 
 bridge, with the exception of this hole, 
 was well covered with plank and entirely 
 safe. When the intestate alighted other 
 ■passengers were standing on the bridge 
 near the brakeman. The latter was sit- 
 ting on limber that was lying on the foot- 
 walk of the bridge, and was to be used in 
 the repairs being made. The passengers 
 had no knowledge of these repairs., The 
 brakeman held his lantern so placed on 
 the floor that another timber cast its 
 shadow over this hole, making it impos- 
 sible for the insured to see it. He could 
 see that portion of the floor lighted by 
 the lantern, and the passengers standing 
 thereon. He could see the brakeman 
 ■near them. He stepped out of the coach 
 
 93 
 
 in plain sight of the brakeman. He had 
 a right to suppose he would land on a 
 floor as firm as that on which the others 
 stood. Neither word nor sight gave him 
 any notice of danger. He did not ap- 
 proach the opening caused by the draw, 
 and was not injured thereby. It is true 
 he voluntarily left the car, but a clear 
 distinction exists between a voluntary 
 act and a voluntary exposure to danger. 
 Hidden danger may exist, yet the expos- 
 ure thereto without any knowledge of the 
 danger does not constitute a voluntary 
 exposure to it. The approach to an un 
 known and unexpected danger does not 
 make the act a voluntary exposure there- 
 to. The result of the act does not neces- 
 sarily determine the motive which 
 prompted the action. The act may be 
 voluntary, yet the exposure involuntary. 
 The danger being unknown the injury is 
 accidental." The court distinguishes 
 Morel V. Miss. Valley Ins. Co., 4 Bush 
 (Ky.), 535; Lovell v. Accident Ins. Co., 
 3 Ins. Law Jour. 877; Sawtelle v. Rail 
 way Pass. Ass. Co., 15 Blatcht. (C. C) 
 216, and kindred cases. , 
 
 8. In Schneider v. Travellers' Ins. Co., 
 58 Wis. 13; s. c, 46 Am. Rep. 618, where 
 a traveller by railway, while asleep and 
 unconscious, involuntarily arose and 
 walked to the car platform, and lell there 
 from and v/as injured, held, not a case of 
 "voluntary exposure," "design," or 
 "self-inflicted injuries." 
 
 3, See. generally, Shilling v. Ace. 
 Death Ins. Co., I F. & F. (Eng) 
 116 ; National Beneficial Assoc, v. 
 Jackson, 114 111. 533; b. t., 13 Am. & 
 Eng. Corp. Cas. 597. 
 
 In Morel v. Mississippi Valley Life Ins. 
 Co., 4 Bush (Ky.), 535, the plaintiff was 
 insured against personal injury by any 
 accident within the meaning of the policy. 
 In travelling he inadvertently put his 
 arm out of the car window, whereby his 
 hand was injured. There was no clause 
 in the policy requiring him to exercise 
 liligent care. The company demurred. 
 
stipulations in Policy. ACCIDENT INSURANCE. Limiting LiabUty- 
 
 (U) The Traveller must Comply with the Rules of the Common 
 Carrier. — Where a policy provides that the insured must comply 
 with the rules of the common carrier and exercise due diligence 
 for self-protection, standing upon the steps of a car while ap- 
 proaching a station, in violation of a known rule of the company^ 
 will bar a recovery.^ 
 
 {c) Condition against Liability for Death caused by taking Poi- 
 son. — Where a policy provides that its benefits shall not extend to 
 death or injury caused "by the taking of poison," an involuntary 
 taking of poison, by mistake, is within the provision, and bars a 
 recovery.^ Where, however, a policy was " conditioned to be void 
 il he die by his own hand or act, voluntary or otherwise," and 
 death resulted from an overdose of medicine, taken by mistake, 
 the provision was construed as intended to cover the varieties of 
 suicidal self-destruction.** 
 
 {fT) Construction of Clause '■'Travelling by Public or Private Con- 
 veyance!' — Although the decisions are not uniform, a policy insur- 
 ing against " any accident while travelling by public or private- 
 conveyance, provided for the transportation of passengers," will 
 
 and the court sustained the demurrer, 
 and held that the injury, being caused by 
 his own carelessness, gave him no right to 
 compensation. Compare, however, Far- 
 low V. Kelly, II Am. & Eng. R. R. Cas. 
 104, and note to that case, where the U. 
 S. Supreme Court decided that such an 
 act on the part of a passenger was not 
 contributory negligence. This decision 
 on this particular point conflicts with the 
 weight of authority. See, further, Hoff- 
 man u. Travellers' Ins. Cu. (IJ, Y. Su- 
 preme Court, Clinton Circuit, Sept. 
 1871), reported in Baltimore Under- 
 writer, Jan. 30, 1373, and S Alb. 
 Law Jour. 87; Pratt v. Travellers' Ins. 
 Co. (N. Y. Supreme Court, Chemung 
 Circuit, Oct. 1871), 8 Alb. L. J. 88; 
 Travellers' Ins. Co. v. Ser.ver (U. S. Su- 
 preme Court, unreported, cited Bliss on 
 Ins. (2d Ed.) §402); Bon v. Railway PaB=. 
 Assoc, 56 Iowa, 664; s.c.,41 Am. Rep. 127. 
 
 1. Traveller must Comply wi-^h the 
 Bales of the Common Carrier. — In Ben 
 V. Railway Pass. Assurance Co., s^- 
 Iowa, 664; s. c, 41 Am. Rep. 127, the 
 plaintiff was insured against accidents 
 while travelling on conveyances of any 
 common carrier, provided he complied 
 with the rules and regulations of the car- 
 rier, and exercised duo diligence for self- 
 protection. While riding on a railway 
 car, approaching a str,tion, ha stood on 
 the steps, in violation of the carrier's 
 rule, known to him, nnd was thrown 
 therefrom and injured. Held, that he 
 could not recover on the policy. 
 
 2. Death cauaed by accidentally taking 
 Poison. — In Pollock v. United States Mu- 
 tual Ace. Assoc, 102 Pa. St. 230, an ac- 
 
 cident policy declared that benefits shall 
 not be held to extend to any case of 
 death or personal injury unless the claim- 
 ant shall establish by direct and positive- 
 proof that the death or personal injury 
 " was caused by external, violent, and 
 accidental means," and that it shall not 
 extend to any death or disability which 
 may have been caused " by the taking of 
 poison." It was held that the association 
 was not liable where the insured drank 
 poison by mistake for a harmless bever- 
 age. The court remarks, " It is not nec- 
 essary that th. poison be taken with an 
 intent to produce death, in order to de- 
 feat a claim flowing from the right of 
 membership. If the poison be inno- 
 cently taken, and wiihout any knowl- 
 edge of the injurious effect which it. 
 was likely to produi-e, and did produce, 
 so far as the person taking it is con- 
 cerned, the effect may be said to he 
 accidental. I." v/e go a step fimher, 
 and admit in sujh case that the "means" 
 are accidental, yet it is one of the acci- 
 dental me.".ns expressly excepted from 
 the pr >tecti\ J power of the certificaie." 
 
 Z. Death from an overdose of medi- 
 cine taken by mistake i^ within a policy 
 against death by accident "conditioned 
 to be void if he die by his own band or 
 act, voluntarily or otherwise," the aim 
 of the condition being merely to cover 
 the varieties o\ suicidal self-destructiiMa. 
 Penfold V. Universal Life Co., 85 N. Y. 
 317; s. c, 39 Am. Rep. 660. 
 
 'Taking an overdose of laudanum to 
 relieve pain is not within such clanse. 
 Mutual Life Co. v. Laurence, 8 BradweU. 
 (111.), 488. 
 
 92a 
 
stipulations in Policy. ACCIDENT INSURANCE. Change of Occupation. 
 
 riot cover an accident occurring in the course of the journey, but 
 while the insured is pursuing a part of his journey on foot.^ 
 
 (i) Suicide while Insane. — A poHcy of accident insurance provid- 
 ing that " this insurance shall not extend to death or disability 
 which may have been caused wholly or in part by bodily infirmi- 
 ties or disease, or by the taking of poison, or by suicide or self- 
 inflicted injuries," will not exempt the company from liability to 
 an insane person who commits suicide by hanging. The decision 
 simply extends to accident insurance, a well-settled principle of 
 insurance law, and declares that such a death is not only effected 
 through violent and external means, but is also accidental because, 
 by an insane person.** 
 
 8. Voiding the Policy by a Change of Occupation. — Where a policy 
 is issued to cover accidents occurring in the prosecution of a cer- 
 tain business, the following have been held not to be such changes 
 of business as will increase the risk and render the policies void : 
 Pitching hay while on a visit to a grandfather;* a school-teacher 
 
 1. What is Construction of Clause 
 " Travelling by Public or Private Convey- 
 ance. " — In Northrupi v. Railway Pass. 
 Assurance Co,, 2 Lans. (N. Y.) l56, an 
 accident ticket insured against " any ac- 
 cident while travelling by public or pri- 
 vate conveyance, provided for the trans- 
 portation of passengers." The assured 
 started by public conveyance for Madi- 
 son County. On landing at the steam- 
 boat wharf at Geneva she started to walk 
 from the steamboat to the railroad, about 
 seventy rods, in further prosecution of 
 her journey, and, while walking, slipped 
 and fell on the sidewalk and received in- 
 juries from which she died. There were 
 carriages to transport the passengers, 
 but she chose to walk. The company 
 •ontended that the contract only covered 
 isks, " vvhile travelling by public or pri- 
 vate conveyance." and that a woman's 
 legs could not bp held to be either, within, 
 the meaning of the contract. The court 
 held, however, that the risk covered the 
 whole journey, and that constructively a 
 person who was walking from steamboat 
 to cars on a through trip was to be 
 deemed travelling by public conveyance 
 from one end of it to the other. 
 
 In Ripley v. Railway Pass. Assurance 
 Co., 2 Big. Cas. 738, the assured was go- 
 ing from Grand Haven, Michigan, to Dal- 
 ton. He reached Muskegon' Village at 
 eleven o'clock at night, and thence 
 started for Dalton on foot. When about 
 half-way there, at midnight, he was way 
 laid ana murdered. He held a travel- 
 ler's ticket, and suit was brought upon it. 
 The court below held that he could not 
 recover, and the decision was subse- 
 quently affirmed by the United States 
 Supreme Court. Ripley v. Insurance 
 Co,, 16 Wall. (U. S.) 336. 
 
 2. Suicide while Insane — A very recent 
 case in the United States Supreme Court 
 presented the question whether a policy 
 of insurance against " bodily injuries ef- 
 fected through external, accidental, and 
 violent means," and occasioning death 
 or complete disability to do business, 
 and providing that " this insurance shall 
 not extend to death or disability which 
 may have been caused wholly or in part 
 by bodily infirmities or disease, or by the 
 taking of poison, or by suicide or self- 
 inflicted injuries," covered a death by 
 self-hanging while the insured was in- 
 sane. In holding that the company was 
 not exempted from liability, the court 
 decided that the clause of the policy as 
 to " bodily injuries effected through ex- 
 ternal, accidental, and violent means" 
 did not speak of what the injury was 
 "caused by," but looked 'only to the 
 " means" by which it is effected. No 
 one doubts that hanging is a violent 
 means of death. As it affects the body 
 from without it is external, and accord- 
 ing to the decisions as to suicide under 
 policies of life insurance it cannot when 
 done by an insane person be held to be 
 other than accidental. Accident In- 
 surance Company of North America v. 
 Crandall, United States Supreme Court, 
 Error to the Circuit Court for District of 
 Illinois, March 7, 1887, not yet reported. 
 
 3. In North Am. Life & Accident Ins. 
 Co. V. Burroughs, 69 Pa.- St. 43, the in- 
 sured was hurt in jpitching hay while on 
 a visit to his grandfather. The company 
 objected that he did not give notice of, 
 or pay for, the extra hazard of doing this 
 work, which was outside his ordinary oc- 
 cupation. But the court said there was 
 no evidence of any change in his occupa- 
 tion, and that what he did on this visit 
 
 92d 
 
Change of Occupation. A CCIDENT INS URANCE. 
 
 Total Disability. 
 
 out of employment engaging in the building of two dwelling- 
 houses ;^ an engineer of a locomotive crossing the tender to apply 
 the brakes on a car when this was the duty of the brakemen.** 
 The question as to whether or not there is a change of occupation 
 is for the jury.* An ironmonger, engaged in trade, who calls him- 
 self an esquire, does not thereby make a misrepresentation as to 
 his occupation which will avoid the policy.* An insurance com- 
 pany which grants a policy covering death through external, vio- 
 lent, and accidental means to a yard-switchman or brakeman of a 
 railroad company is considered to have contemplated the dangers 
 of his employment and is liable to him in case of accident.'' 
 
 9. What is Total Disability. — Accident insurance policies are now 
 carefully drawn to avoid the payment of an indemnity for any- 
 thing but total disability from the performance of the duties of 
 the occupation in which the insured is engaged. The decisions, 
 where the disability is partial, depend upon the clause in the 
 policy. Where such clause read " any bodily injury to the said 
 insured of so serious a nature as wholly to disable him from fol- 
 lowing his usual business, occupation, or pursuits," it was held, in 
 effect, that a disability which incapacitated the assured from fol- 
 lowing his usual occupation, business, or pursuits," was a breach.* 
 
 U. S. Casualty Co., 34 N. 
 
 did not amount to a change of business 
 within the meaning of this policy. 
 
 1. In Stone v. U. S. Casualty Co., 34 
 N. J. Law, 371, the company defended 
 upon the ground that the policy became 
 void if the assured changed his occupa- 
 tion to a more hazardous one, and 
 claimed that the assured, who was a 
 school-teacher, had so changed his busi- 
 ness, because when the accident occurred 
 he was engaged in the building of two 
 dwelling-houses. The court charged that 
 " changing occupation" meant an engag- 
 ing in another' employment as a usual 
 business (a question for the jury), which 
 the court above affirmed and said that it 
 was preposterous to affirm that because 
 he, a teacher out of employment, had 
 two houses built by contract, he thereby 
 became a builder by profession. See 
 also Provident Life Ins. & Investment 
 Co. V. Fennell, 49 111. 180. 
 
 2. In Provident Life Insurance & In- 
 vestment Co. V. Martin, 32 Md. 310, the 
 assured was a locomotive engineer. The 
 company contended that, in climbing 
 over the tender to apply the brakes on 
 the next car, he was acting outside of his 
 regular occupation and doing the work 
 of a brakeman and thus avoiding the 
 policy. But the court said there was no 
 warranty or stipulation that the assured 
 should not engage in any other occupa- 
 tion, nor that the company should he lia- 
 ble only for accidents occurring in the 
 course of his regular employment, but, 
 on the contrary, the policy covered all 
 accidents, except certain specified ones. 
 
 92c 
 
 3. Stone v. 
 J. Law, 371. 
 
 4. Where a man being engaged in 
 trade as an ironmonger calls himself an 
 esquire, and says nothing about the 
 trade, this does not amount to a state- 
 ment false in fact. At most he has not 
 stated all he might have stated. But 
 this only makes his statement imperfect, 
 not untrue, and the court will not deem 
 such an omission to be a suppressio veri 
 or suggestlo falsi. Perrins v. Marine & 
 Travellers, etc., Co., 2 E. & E. 317. 
 
 5. National Beneficial Assoc, v. Jack- 
 son, 114 111. 533; s. c, 13 Am. & Eng. 
 Corp. Cas. 597. 
 
 6. In Hooper v. The Accidental Death 
 Ins. Co., 5 H. & N. 546, the insured was 
 a solicitor, and while riding on horseback 
 severely sprained his right ankle. On 
 the same day he called in a surgeon, un- 
 der whose care he remained for upwards 
 of six weeks. For four weeks he was 
 confined to his bedroom and an adjoin- 
 ing room on the same floor, and was un- 
 able to walk or stand, and for the next 
 two weeks he could not leave the house. 
 The plaintiff was able to write letters, 
 read law and the like, while lying on the 
 couch, but was unable to attend to busi- 
 ness which could not be transacted in his 
 house. The policy allowed five pounds 
 per week for accidents which ' ' shall cause 
 any bodily injury to said insured of so 
 serious a nature as wholly to disable him 
 from following his usual business, bc- 
 cupation, or pursuits." The plaintiff 
 claimed for four weeks total disability. 
 
Total Disability. 
 
 ACCIDENT INS URANCE. Notice to Company. 
 
 Where the clause read "accident and injury which totally disabled 
 and prevented him from all kinds of business," it was held that 
 there could be no recovery because it was not shown that there 
 was a " total disability to labor." '^ Where the clause read " while 
 totally disabled and prevented from the transaction of all kinds of 
 business," it was held that such language could not be construed to 
 mean "partially disabled from some kinds of business."'-* Where 
 the clause read " wholly disable and prevent him from the prosecu- 
 tion of any and every kind of business pertaining to his occupa- 
 tion, and then only ' for such period of continuous total disabili- 
 ty,' " it was held that total disability did not mean inability to do 
 substantially "all kinds of his accustomed labor to some extent."^ 
 10. notice of Accident to the Company. — The policy usually calls 
 for immediate notice of the accident to the company. How far 
 the notice given complies with the stipulation in the policy is a 
 question for the jury. Reasonable but not capricious evidence 
 of immediate notice may be demanded.* 
 
 The defendants contended that he must 
 be so disabled that the surgeon would 
 forbid his doing any business at all, and 
 said, if he had been a dancing-masier. he 
 might be said to be totally disabled. But 
 so long as he could do any part of his 
 work by himself or his clerk, he was not 
 totally disabled, but only partially disa- 
 bled. Pollock, C. B said that there was 
 no sound distinction between the case of 
 a dancing-master and an attorney. For, 
 if the dancing master could not dance, 
 he might play an instrument and teach 
 others how to use their limbs in dancing, 
 and an attorney, prostrate, deprived of 
 sense and motion, might to some extent, 
 by partners and clerks, carry on his busi- 
 ness. And he held that, if the plaintiff 
 was wholly disabled from carrying on 
 his business as he usually carried it on 
 the company would be liable. 
 
 1. Rhodes v. Railway Pass. Ins. Co., 
 5 Lans. (N. Y.) 71. 
 
 8. In Lyon v. Railway Pass. Assur. 
 Co., 46 Iowa. 631; s. c, 6 Repr. 169, an 
 instruction to the jury upon a policy of 
 accident insurance in case of total disa- 
 bility to transact all kinds of business 
 that plaintiff might recover though he 
 were able to do some parts of the accus- 
 tomed work pertaining to his business, al- 
 though he could not to some extent do all 
 parts and engage in all the employments 
 thereof is error. An instruction to the 
 jury on such a policy, that the disability- 
 is to be referred to any business in which 
 the assured is qualified to engage is er- 
 ror. The policy prescribes the terms of 
 a contract of insurance, and where it 
 stipulates that the company will indem- 
 nify the assured for loss of lime while 
 totally disabled he cannot recover except 
 upon proof of total disability, nor would 
 
 the rule be varied if he should be totally 
 disabled in his own pursuit and able to 
 engage in some other employment. 
 
 3. Saveland v. Fidelity & Casualty Co. 
 (Supreme Court, Wisconsin, November, 
 1886). 30 Northwestern Rep. 237. 
 
 4. Notice to the Company. — In Provident 
 Life Ins. & Inv. Co, v. Martin, 32 Md. 
 310, the policy required notice to the 
 company, when an injury occurred, "as 
 soon thereafter as possible," The acci- 
 dent and death occurred July 21. Within 
 less than a week thereafter ihe widow 
 reported the death to the company's 
 agent, who had already heard of the 
 accident. She then proceeded to procure 
 affidavits on August 18 and 28 and 
 September 4, which were received by the 
 agent and forwarded to Chicago, to the 
 home office, about the latter date. The 
 con^pany contended that notice was not 
 given soon enough, but the court said 
 that this question was properly left to the 
 jury, who found for the plaintiff, and 
 added: " If it were a matter of law, our 
 judgment thereon would coincide with the 
 conclusion the jury must have reached," 
 
 Whether "immediate notice" such as 
 the policy calls for is given is for the 
 jury. Lyon v. Ins Co., 46 Iowa. 631; s. 
 c, 6 Repr. i6g. See also Provident Life 
 Ins. & Inv. Co. v. Baum, 29 Ind. 236. 
 
 Reasonable but rtot capricious evidence 
 of immediate notice of the loss to the 
 company may be required. Braunstein v. 
 Accidental Death Ins. Co., I B & S. 782. 
 
 Such evidence must be such as a court 
 of justice would hold to be reasonable. 
 Trew V Railway Pass. Assur. Co. , 6 Jur. 
 (N. S.) 759- 
 
 Notice within seven days may be de- 
 manded. Gamble v. Accident Ins. Co.^ 
 14 Irish R. (C, L,) 204 Exch. 
 
 92(i 
 
Heasvi'e of Damages. A CCIDENT INS U RANGE. 
 
 Uiscellaneous. 
 
 11. Measure of Damages. — In England and the United States the 
 •measure of damages depends upon essentially different principles, 
 because in the latter country it is the universal custom to measure 
 this indemnity, in a clause of the policy, by a fixed sum payable 
 for the weeks of total continuous disability from all work.^ 
 
 12. Miscellaneous Matters. — Arbitration. — In England a condition 
 in the policy as to arbitration is held to be a condition precedent, 
 
 ■ and requires arbitration in the manner prescribed.'-* 
 
 Insurable Interest. — Accident, like other insurance, must rest 
 upon an insurable interest in the real payee. Every man has an 
 insurable interest in his own life, and when he takes a policy 
 payable to a payee named by him and accepted by the company, 
 the company cannot set up a lack of insurable interest.' 
 
 Locomotive Engineer may Recover upon Passenger' s Ticket. — It 
 has been held that where a locomotive engineer purchased a 
 passenger's insurance ticket and was accidentally killed while 
 Tiding on an engine and in charge of it, he could recover.* 
 
 Recovery over by Insurance Company. — The right of an insurance 
 ■company, compelled to pay damages under their policy, to recover 
 over against the person or company whose act or negligence has 
 •caused the death or injury has been denied in two cases.* 
 
 1. Heasnre of Damages. — The measure his own life, and the insured, in this 
 ■of damages in cases where indemnity is case, had appointed and the company 
 payable for injury is not the proportion accepied the payee. 
 
 which the injury bears to the amount 
 payable for loss of time and profits, 
 which is the same thing, but the assured 
 is to recover indemnity for the expense 
 and pain and loss immediately connected 
 with the injury, without taking in the re- 
 mote consequences, and without exceed- 
 ing in any event the total sum payable 
 in case of death. Theobald v. Railway 
 Passengers' Assur. Co., lo Ex. Ch. 45; 
 Art. Accident Insurance, 8 Alb. L. J. 89. 
 
 2 Arbitration. — Braunstein v. Acci- 
 dental Death Ins. Co.. i B. & S. 782. 
 
 3. Insurahle Interest. — In England it 
 has been held that an accident insurance 
 is within the statute 15 Geo. III. ch. 48, 
 § 2 (which statute provides that it shall 
 be competent to show that the policy was 
 in fact made on account of a person 
 ■other than the person with whom it is 
 expressed to be made), and, like Any 
 
 4. Locomotive Engineer may Becover 
 upon Passengers' Ticket. — In Brown v. 
 Railway Pass. Assoc. Co , 45 Mo. 221, 
 an accident ticket insuring against "kny 
 accident while travelling by public or 
 private conveyance provided for the 
 transportation of passengers" was pur- 
 chased by a locomotive engineer. He 
 was accidentally killed while riding on 
 an engine, and in charge of it. (See this 
 case doubted in 8 Alb. L. J. 91.) 
 
 5. Recovery over by Insurance Com- 
 pany. — In Mobile Life Ins. Co. v. Brame, 
 95 U. S. 754, this right was denied upon 
 the ground that the relation between the 
 plaintiff and the assured was created by 
 a contract to which the defendant was 
 not a party, and that the' damage to the 
 plaintiff in being compelled to make good 
 its contract with the assured was not a 
 necessary or proximate result of the 
 
 ■other insurance on lives, must rest on an wrong done by the defendant in killing 
 insurable interest in the real payee of the the assured. 
 
 policy, and although the policy was 
 payable to the deceased, and the suit 
 was brought by his administratrix, it was 
 really for the benefit of another party, 
 who paid the premiums. 
 
 In Provident Life Ins. & Inv. Co. v. 
 Baum, 29 Ind. 236, a policy was made 
 payable to a payee who was accepted by 
 the company. The company denied an 
 insurable interest in the payee, but the 
 
 In Connecticut Mutual Life Ins. Co. v. 
 N. Y. & N. H. R. R., 25 Conn. 265, the 
 same rule was applied where the plaintiff 
 sought to recover for the killing of its 
 assured by negligence on the part of the 
 railway. 
 
 Authorities for Accident Insnr^ce. — 
 Accident Insurance, 8 Alb. Law Jour. 
 (1874) 85; Bliss on Life Insurance (2d Ed. 
 1874), § 395, p. 702; May, Law of Insur- 
 
 court held that none need be proven, as aru;e (2d Ed. 1882), § 514, p. 780; Porter,'' 
 «very man has an insurable interest in Laws of Insurance (1884), chap. 24, p. 431. 
 
 I C. of L.— 7 93 
 
ACCOMMODATING— ACCORD AND SATISF ACT/ON. 
 
 ACCOMMODATING.— By using the words! " accbmmodatingr 
 terms " in a contract, the parties must have intended that the 
 purchase-money, or some part of it, should be permitted to re- 
 main in vendor's hands, as if a loan for his convenience. ^ ' 
 
 ACCOMMODATION PAPEH. See BiLLS AND NOTES. 
 
 ACCOMPLICE. See ACCESSORY. 
 
 ACCORD AND SATISFACTION. 
 
 Notes ; Payments. 
 
 1. Definition. Effect. 
 
 2. Tender not Accepted. 
 
 3. Must be Legal. 
 
 4. Advantageous to Creditors. 
 
 5. Performance. 
 
 6. Part Payment. 
 7 Payment in Property. 
 
 8. New Consideration. 
 
 9. Note of Third Person. 
 
 See Bailments ; Bills ani> 
 
 10. Additional Security. 
 
 1 1 . Payment by Note. 
 
 12. Note for Note. 
 
 13. Joint Obligors, 
 
 14. Joint Tort-feasors. 
 
 15. Joint Makers of a Note. 
 
 16. Joint Creditors. 
 
 17. Fraud &' Misrepresentation^ 
 
 18. When Set Aside. 
 
 1. Definition. — Accord and satisfaction is the substitution of 
 another agreement between the parties in satisfaction of the for- 
 mer one, and an execution of the latter agreement.** 
 
 Accord and satisfaction forms a complete bar to any further ac- 
 tion on the original claim, but accord without satisfaction does, 
 not bar such action. ^ 
 
 Accord without satisfaction is not a good plea ; * neither is 
 satisfaction without accord.^ 
 
 1. Plaintiff agreed to sell, and defend- 
 ant to purchase, a brig, and the terms 
 were to be accommodating. Held, under 
 such a contract the vessel might pass 
 by delivery. Rice v. McLaren, 42 Me. 
 
 157. 
 
 2. PuUiam v. Taylor, 50 Miss. 251, 
 
 257- 
 
 Accord is a satisfaction agreed upon 
 between the party injuring and the party 
 injured, which, when performed, is a bar 
 to all actions upon this account. 3 Black. 
 Com. 15. 
 
 When executed, in parol, it is a good 
 defence to an action on a covenant in a 
 sealed instrument which sounds in dam- 
 ages, although secured by a penalty. 
 Cabe V. Jameson, 10 Ired. (N. Car.) 193. 
 
 A promise to pay at a future time ac- 
 crued damages may be pleaded as a re- 
 lease of, or a defence to, the original 
 cause of action ; but it will not sustain 
 the plea of accord and satisfaction. Herr 
 V. O'Connor, 63 Pa. St. 341. 
 
 3. Bac. Abr. lit. Ace. and Satisf. 
 Parker v. Ramsbottom, 3 B. & C. 
 
 4. 
 257. 
 
 5. 
 596. 
 
 Hardman ». Bellhouse, 9 M. & W. 
 
 An agreement or accord which is to 
 operate as a satisfaction of an existing 
 
 liability must, before it can have that 
 effect, be fiiUy executed. It is merely 
 executory, as long as by its terms some- 
 thing remains to be done in the future, 
 Bragg V. Pierce, 53 Me. 65 ; Kromer v. 
 Helm, 75 N. Y. -574; Brooklyn Bank v.. 
 De Grauw, 23 Wend. (N. Y.) 342; Rus- 
 sell V. Lytle, 6 Wend. (N. Y.)390; s. c, 
 22 Am. Dec. 537; Dolsen v. Arnold, 10 
 How. Pr. (N. Y.) 530; Geary v. Page, g, 
 Bosw. (N. Y.) 300; Tilton v. Alcott, 16 
 Barb. (N. Y.) 598; Noe v. Chris,tie, 51 
 N. Y. 272; Mitchell v. Hawley, 4 Den. 
 (N. Y.) 414; Brennan v. Ostrander, 50 
 N. Y. Super. Ct. 426; Rising v. Cum- 
 mings, 47 Vt. 345; Piper z/. Kingsbury, 48, 
 Vt. 480; Ballard v. Noaks, 2 Ark. 45; 
 Flack I/. Garland. 8 Md. 188, 191; Hearn, 
 V. Kiehl, 38 Pa. St. 147, 149; Schilling v. 
 Durst, 42 Pa. St. 126; McKean v. Reed, 
 Litt. Sel. Cas. (Ky.) 395; s. c, 12 Am. 
 Dec. 318; Clark v. Bowen, 22 How. 
 (U. S.) 270; Heathcote v. Crookshanks, 2 
 Term. R. 241, 
 
 At common law, without satisfaction, 
 an accord is no bar to a suit upon the 
 original obligation; but if the accord is 
 founded upon a new consideration, and 
 accepted as satisfaction, it operates asL 
 such satisfacfion and bars the remedy 
 upon the old contract. The circumstances 
 
 94 
 
Tender 
 
 ACCORD AND SATISFACTION. 
 
 not Accepted. 
 
 2. Tender not Accepted. — Tender of performance can never 
 take the place of satisfaction, unless accepted. Accord to be 
 good must be in full satisfaction, and must be executed ; 
 readiness to perform is not enough.^ 
 
 of each case must determine whether 
 there has been a new consideration in 
 legal contemplation. Hall v. Smith, 15 
 Iowa, 584; Babcock ». Hawkins, 23 Vt. 
 561. 
 
 There is a distinction between an en- 
 gagement to accept a promise in satis- 
 faction and an agreement requiring per- 
 formance of the promise. If the 
 promise itself and not its performance is 
 accepted in satisfaction, this is a' good 
 accord, and satisfaction without per- 
 formance. But otherwise if the per- 
 formance is required to discharge the 
 demand. Whitney v. Cook, 53 Miss. 
 551; Molyneaux v. Collier, 13 Ga. 406. 
 
 An acceptance of an agreement with 
 mutual promises, on which the creditor 
 has a legal remedy for its non-perform- 
 ance, is a satisfaction of a debt. Good- 
 rich V. Stanley, 24 Conn. 613; Billings v. 
 Vanderbeck, 23 Barb. (N. Y.) 546. 
 
 One security may sometimes be 
 pleaded in bar of another. Thatcher v. 
 Dudley, 2 Root (Conn.), i6g; Seaman v. 
 Haskins, 2 Johns. (N. Y.) Cas. 195; 
 Bank v. Letcher, 3 J. J. Marsh (Ky.), 
 196. 
 
 An agreement by two, each having an 
 action for false imprisonment pending 
 against the other, to discontinue their 
 respective actions, and an actual discon- 
 tinuance accordingly is a good accord 
 and satisfaction. Foster v. Trull, 12 
 Johns. (N. Y.)456; Vedder v. Vedder, i 
 Den. (N. Y.)257. 
 
 The acceptance by a bailor from the 
 bailee of a part payment, and of the bail- 
 ee's notes for the residue of the value, is 
 not — the notes being unpaid — an accord 
 and satisfaction which waivec the bailor's 
 right to arrest. Person v. Civer, 29 
 How. Pr. (N. Y.) 432. See Bailments. 
 
 A right of action by the owner of a 
 chattel for injuries done to it in the pos- 
 session of a bailee is not barred by a 
 settlement between the owner and the 
 bailee. Rindge v. Coleraine, 11 Gray 
 (Mass.), 157. 
 
 Accord and satisfaction cannot dis- 
 charge a specialty, though it will dis- 
 charge damages arising from a breach of 
 the specialty. Mitchell v. Hawley, 4 
 Den. (N. Y.) 414; s. c, 47 Am. Dec. 260; 
 Garvey w. Jarvis, 54 Barb. (N. Y.)l7g; 
 Esmond z/. Van Benschoten, 12 Barb. 
 (N. Y.) 376. 
 
 1. Russell V. Lytle, 6 Wend. (N. Y.) 
 390. See Payments. 
 
 Accord with tender of satisfaction is 
 insufficient. Brooklyn Bank i/. DeGrauw, 
 23 Wend. (N. Y.) 342 ; Watkmson v. 
 Inglesby, 5 Johns. (N. Yi) 392; Daniels v. 
 Hallenbeck, 19 Wend. (N. Y.)4o8; Dol- 
 sen V. Arnold, 10 How. Pr. (N. Y.) 530; 
 Tilton V. Alcott, 16 Barb. (N. Y.) 598; 
 Osborn a. Robbins, 37 Barb. (N. Y.) 
 483; Hawley v. Foote, 19 Wend. (N. Y.) 
 5x7; Crane v. Maynard, 12 Wend. (N. Y.) 
 408; Noe V. Christie, 51 N. Y. 270; Flack 
 V. Garland, 8 Md. 188, 191; Hearn v. 
 Kiehl, 38 Pa. St. 147, 149; Blackburn v. 
 Ormsby, 41 Pa. St. 57; Coblentz v. 
 Wheeler & Wilson Mfg. Co., 40 Ark. 
 180; Gushing v. Wyman, 44 Me. 121; 
 Molyneaux v. Collier, 13 Ga. 407; Sim- 
 mons V. Clark, 56 111. 96; Frost v. John- 
 son, 8 Ohio, 393; Smith z/. Keels, 15 Rich. 
 (S. Car.) 318; Maze v. Miller, I Wash. 
 (U. S.) 328. 
 
 But see Tucker v. Edwards, 7 Colo. 
 20g, where it was held that where a plain- 
 tiff had his choice between two modes of 
 satisfaction, the constant readiness of 
 the defendant to do either is sufficient. 
 He need not make actual tender until the 
 plaintiff makes his choice. 
 
 " It ought to be executed; a different 
 decision would overthrow all the books." 
 Allen V. Harris, i Ld. Raym. 122. 
 
 "I, A, hereby agree to deliver B his 
 mare, and I, B, agree to dismiss all suits 
 against A, on delivery of said mare." was 
 held not operative to dismiss the suit 
 until the delivery of the mare. Ogilvie 
 V. Hallan, 58 Iowa, 714 
 
 To constitute a good accord and 
 satisfaction, it must be accepted as such. 
 Barnes v. Lloyd, 2 Miss. 584; Evans v. 
 Wells, 22 Wend. (N. Y.) 325; Eaton v. 
 Lincoln, 13 Mass. 424; Young v. Jones, 
 64 Me. 563; Watson w: Elliott, 57 N. H. 
 511; Pettis V. Ray, 12 R. I. 344. 
 
 A plea founded upon services should 
 aver that the services were accepted in 
 satisfaction of the plaintiff's demand. 
 Without such averment of acceptance the 
 plea is bad. Johnson v. Hunt, 81 Ky. 
 321. 
 
 Saying "it is not enough, but there 
 will be no trouble," at the time of pay- 
 ment, is not an acceptance in full satisfac- 
 tion. Willey V. Warden, 27 Vt. 655. 
 
 To a declaration alleging a breach 01 
 
 95 
 
Must te Legal. ACCORD AND SATISFACTION. Advantageous. 
 
 3. Must be Legal. — An accord and satisfaction to be valid must 
 Test upon a legal consideration, and the thing to be done also 
 must be legal.* 
 
 4. Advantageous to Creditors. — It must be advantageous to the 
 creditor, and he must receive an actual benefit therefrom which 
 he would not otherwise have had.'-* 
 
 an agreement therein set forth, and con- 
 sequent damage to the plaintiffs, it was 
 pleaded that a certain agreement had 
 been come to between plaintiffs and de- 
 fendants after disputes had arisen. The 
 plea did not in terms admit or deny the 
 alleged breach; nor did it in terms state 
 that the agreement pleaded had been ac- 
 cepted by the parties in accord and satis- 
 faction of the causes of action alleged in 
 the declaration. Held, that such plea 
 was bad. It could not be assumed that 
 an agreement had been accepted in ac- 
 cord and satisfaction. Barclay v. Bank 
 ■of New South Wales, L. R. 5 App. Cas. 
 
 374- 
 
 Acceptance by a ward, after he is of 
 age, of promissory notes which the guard- 
 ian had not collected, and was therefore 
 liable to pay, is not a good plea to an 
 action on the guardian's bond unless 
 they are collected. Com. v. Miller, 5 
 T. B. Mon. (Ky.) 205. 
 
 But where a stockholder in a building 
 association, under resolution of the asso- 
 ciation permitting borrowers to with- 
 draw, on the payment of a stipulated 
 amount, the stock to be then "with- 
 drawn and cancelled," withdrew, paid off 
 his loans and stock, which was then 
 marked on the books as cancelled and 
 withdrawn, it was held that the company 
 could not afterwards recover for dues 
 which subsequently accrued thereon. 
 After an acceptance of the terms of the 
 resolution and payment by the debtor of 
 the sums found thereby to be due, the 
 new contract was executed and a case of 
 accord and satisfaction made out. Miller 
 V. Second Jefferson Building Assoc, 14 
 Wright (Pa.), 32. 
 
 Where a debtor gave a bond for the 
 benefit of his creditors to a trustee, on 
 which bond judgment was entered, and 
 where one of his creditors accepted said 
 judgment and actfed on it, it was held to 
 be a sufficient acceptance to make a valid 
 accord and satisfaction. Seaman v. 
 Haskins, 2 Johns. (N. Y.) Cas. 195., 
 
 It is necessary that the money should 
 be offered in satisfaction of the claim, 
 and the offer accompanied with such acts 
 and declarations as amount to a con- 
 dition that if the money is accepted it is 
 accepted in satisfaction, and such that 
 the party to whom it is offered is bound 
 
 to understand therefrom that if he takes 
 it, he takes it subject to such condition. 
 Preston v. Grant. 34 Vt. 201; Towsleez/. 
 Healey, 39 Vt. 522; Boston Rubber Co. 
 V. Peerless Wringer Co', 5S Vt. 553. 
 
 In cases of composition deeds or 
 agreements between a , debtor and his 
 creditors an executory accord can some- 
 times serve as a bar to proceedings on 
 the original claim; and they have been 
 held upon grounds peculiar to that class 
 of instruments to bar an action by a 
 separate creditor, who had signed the 
 composition, to recover his debt, although 
 the composition agreement was still ex- 
 ecutory. Good V. Cheeseman, 2 B. & 
 A. 335; Bayley v. Homan, 3 Bing. N. C. 
 915. 
 
 1. Edgecombe v. Rodd. 5 East, 294. 
 Where defendant pleads accord and 
 
 satisfaction by articles prohibited from 
 sale by statute, the plaintiff may treat the 
 transaction as void; and if its validity is 
 insisted upon by the defendant he may 
 show that it falls within the statutory 
 prohibitions. Smith v. Grable, 14 Iowa, 
 429; Drisbach v. Keller, 2 Pa. St. 77; 
 Walan v. Kerby, 99 Mass. i. 
 
 It cannot be predicated upon an illegal 
 contract, such as one for the subletting of 
 convicts. Gordon &. Mitchell, 68 Ga. 11. 
 
 A contract made by an aged man with 
 his grandson, that if the latter will aid 
 the grandfather in inducing a young lady 
 to marry him, write letters to her, and 
 use his influence with the lady to marry 
 the grandfather, the latter will deliver to 
 the grandson a note he holds against him 
 for $5000 is against the policy of the law, 
 and is void. Johnson v. Hunt, 81 Ky. 
 321. 
 
 2. Davis V. Noaks, 3 J. J. Marsh. (Ky.) 
 494; Logan V. Austin, i Stewart (Ala.), 
 476. 
 
 Restpring to the injured party his 
 chattels or land, of which he has been 
 wrongly dispossessed by the defendant, 
 is no consideration to support a promise 
 by the injured person (to defendant) not 
 to sue him for those injuries. Keeler v. 
 Neal, 2 Watts (Pa.), 424. 
 
 Where A held a note against B and C, 
 partners, and all three agreed that C 
 should lurn over the partnership prop- 
 erty 10 B. who was to pay the note, it was 
 held to be a good accord and satisfac- 
 96 
 
Not by stranger. ACCORD AND SATISFACTION. Part Payment. 
 
 5. Not by Stranger. — Performance must be by the debtor or his 
 agent ; not by a stranger, as the creditor is not bound to receive 
 performance at the hands of such.^ 
 
 6. Part Payment. — The payment in money of a part of the 
 whole debt is not a good satisfaction, even if accepted,** unless 
 
 tion as between A and C. Rusk v. Gray, 
 83 Ind. 5S9. 
 
 1. Clow -J. Borst, 6 Johns. (N. Y.) 37; 
 Daniels v. Hallenbeck, 19 Wend. (N. Y.) 
 40S; Stark V. Thompson, 3 T. B. Men. 
 (Ky.) 302. 
 
 A stranger voluntarily paying the 
 amount due to the creditor does not ac- 
 quire by such payment any right of action 
 against the debtor; neither does such 
 voluntary payment bar the creditor's 
 right of action against the debtor. Brown 
 ■V. Chesterville, 63 Me. 241. 
 
 But when the stranger acts as the 
 debtor's agent, or the creditor accepts the 
 payment in discharge of the debtor's 
 liability, it wilf be a good satisfaction. 
 Rusk V. Soutter, 67 Barb. (N. Y.) 371, 
 373; Webster v. Wyser, I Stew. (Ala.) 
 184; Leavitt !>. Morrow, 6 Ohio St. 71; 
 Britton w. Lewis, 8 Rich. (S. Car.) Eq. 
 271; Simpson v. Eggington, 10 Exch. 
 845; Belshaw v. Bush, n C. B. igi; 
 Snyder v. Pharo. 25 Fed. Rep. 398. 
 
 Accord and satisfaction with a person 
 acting without authority as administrator 
 or executor of a deceased person be- 
 comes valid on his subsequently re- 
 ceiving letters testamentary or of admin- 
 istration. Vroom V. Van Home, 10 
 Paige (N. Y.), 549; Priest v. Watkins, 2 
 Hill (N. Y.), 225. 
 
 2. Line v. Nelson, 38 N. J. L. 358 ; 
 Daniels v. Hatch, i Zabr. (N. J.) 391; 
 Warren v. Skinner, 20 Conn. 557; Vance 
 V. Lukenbill, 9 B. Mon. (Ky.) 249 ; 
 Jones V. Bullitt, 2 Litt. (Ky.) 242; Bryan 
 V. Foy, 6g N. Car. 45; Hayes v. David- 
 son. 70 N. Car. 573; Mitchell v. Sawyer, 
 71 N. Car. 70; Moore v. Hylton, i Dev. 
 (N. Car.) Eq. 429; Brooks v. Moore, 67 
 Barb. (N. Y.) 394; Geary v. Page. 9 
 Bosw. {N. Y.)2go; Harrison v. Close, 2 
 Johns (N, Y.) 450; Johnston v. Braman. 
 5 Jphns. (N. Y.) 270; Russell v. Lytle, 6 
 Wend. (N. Y.) 390; Inman v. Griswold, 
 I Cow. (N. Y.) 199; Allen v. Roosevelt, 
 14 Wend. (N. Y.) 100; Dederick v. Le- 
 man. 9 Johns. (N. Y.) 333; Beardsley v. 
 Davis, 52 Barb. (N. Y.) 159; Bunge v. 
 Koop, 5 Robt. (N. Y.) i; Bliss v. 
 Shwarts, 64 Barb. (N. Y.) 215; Von 
 Gerhardt v. Lighte, 13 Abb. Pr. (N. Y.) 
 loi; Curran v. Rummell, 118 Mass. 482; 
 Clifton V. Litchfield. 106 Mass. 34; 
 Walan v. Kerby. 99 Mass. 3; Twitchell 
 V. Shaw, 10 Cush. (Mass.) 48; Tuttle v. 
 
 Tuttle, 12 Mete. (Mass.) 554; Donohue 
 V. Woodbury, 6 Cush. (Mass.) 148; Howe 
 V. Mackay, 5 Pick. (Mass.) 44; Make- 
 peace V. Harvard College, 10 Pick. 
 (Mass.) 298; Shaw v. Clark, 6 Vt. 507; 
 Miller t/. Holden, 18 Vt. 337; Rising t/; 
 Cummings, 47 Vt. 345; Cavaness v. 
 Ross, 33 Ark. 572; Eve v. Mosely, 2 
 Strobh. (S. Car.) 203; Sullivan v. Finn, 
 4 Greene (Iowa), 544; Spann v. Baltzell, 
 
 I Fla. 301; Ramsdell z/. U. S., 2 Ct. of 
 CI. 508; St. Louis, etc., R. Co. v. Davis,. 
 
 II Pac. R. (Kan.) 421. 
 
 Payment of a less sum of money than 
 the whole debt without a release is no- 
 satisfaction of the plaintiff's claim. A 
 mere agreement to accept less than the 
 real debt would be nudum pactum^ 
 Geiser v. Hershner, 4 Gill & Johns. 
 (Md.) 305; Barber v. State, 24 Md. 390; 
 Maddux z/. Bevan, 39 Md. 499; Loney v. 
 Bailey, 43 Md. 22; Oberndorff v. Bank 
 of Baltimore, 31 Md. 132; Seymour v. 
 Minturn, 17 Johns. (N. Y.) 169; Boyd v. 
 Hitchcock, 20 Johns. (N. Y.) 72; Rose 
 V. Daniels, 8 R. \. 381; Lathrop z/. Page, 
 129 Mass. 19. 
 
 Such release must be under seal, 
 Harrison v. Close, 2 Johns. (N. Y.)447; 
 Ryan v. Ward, 48 N. Y. 204; Gordon z/. 
 Moore, 44 Ark. 349; Mech. Bank v. 
 Hazard, 13 Johns. (N. Y.) 353. 
 
 Where the holder of a promissory note 
 surrenders it to the maker and takes one 
 of less amount in satisfaction, it is a full 
 discharge, and no action can be main- 
 tained for the unpaid portion. The sur- 
 render is equivalent to a release under 
 seal. Draper v. Hitt, 43 Vt. 439. See 
 Bills and Notes. 
 
 But taking a less amount than that 
 which is due without surrendering the 
 note is not a satisfaction. Pearson v. 
 Thomason, 15 Ala. 700; Silvers o. Rey- 
 nolds, 2 Harr. (N. J.) 275. 
 
 Taking a check or receipt for a smaller 
 sum than the amount due on promissory 
 notes in payment and satisfaction of the 
 notes is not necessarily an attempt to 
 discharge a larger sum by payment of a 
 smaller; the notes being salable like any 
 other personal property. Rockwell v. ' 
 Taylor, 41 Conn. 55. 
 
 A being indebted to B in 125/. 7j. ()d. 
 for goods sold and delivered, gave B a 
 check for 100/.. payable oh demand, 
 which B accepted in satisfaction. Held 
 
 97 
 
Part Payment. ACCORD AND SATISFACTION. Part Payment. 
 
 the amount is disputed at the time of the payment, or is con- 
 tinsent.'- 
 
 to be a good accord and satisfaction. 
 Goddard v. O'Brien, L. R. 9 Q. B. D. 
 
 37- 
 
 A receipt in full, when the whole 
 amount has not been paid, will not pre- 
 vent recovery of the balance due. Ryan 
 V. Ward, 48 N. Y. 204; Miller w. Coates, 
 66 N. Y. 609; Bunge v. Koop, 48 N.Y. 
 225; Harrimari v. Harriman, 12 Gray 
 (Mass.), 341. See Payments. 
 
 A parol release of a judgment for less 
 than the amount due is invalid although 
 indorsed on the execution. Weber v. 
 Couch, 134 Mass. 26. 
 
 The fact that the debtor is insolvent at 
 the time when his creditor promises to 
 accept from him a less sum than is due 
 in full satisfaction of the debt does not 
 affect the question of the consideration 
 of such promise. Pearson v. Thoma- 
 son. 15 Ala. 700. 
 
 Where the amount of payment ex- 
 ceeds the principal and only falls short 
 in the calculation of interest, the accord 
 and satisfaction will be valid. The ques- 
 tion as to interest depends much on the 
 circumstances of settlement, and its 
 computation is not always precise. John- 
 ston V. Brannan. 5 Johns. (N. Y.) 268; 
 Tenth Nat. Bank v. Mayor of N. Y., 4 
 Hun (N. Y.). 429; Tuttle v. Tuttle, 12 
 Mete. (Mass.) 551. Compare Beer v. 
 Foake, L. R. 11 Q. B. D. 221. 
 
 Receiving part payment under protest, 
 though tendered in full, will not establish 
 accord and satisfaction. People v. Su- 
 pervisors of Cortland Co., 40 How. 
 (N. Y.) 53- 
 
 In Maine it is provided by statute that 
 any payment less than the amount actu- 
 ally dile, which has been received in full 
 payment, will bar further action on the 
 original claim. Weymouth z/. Babcock, 
 42 Me. 42; Austin w. Smith, 39 Me. 203. 
 
 Both parties, however, must concur in 
 the agreement. It does not apply to a 
 part payment with an agreement that the 
 debtor shall have " his own time to pay 
 the balance." Mayo v. Stevens, 61 Me. 
 561. 
 
 So in Georgia a part payment bars 
 further action if the accord and satisfac- 
 tion is actually executed. But not when 
 only part of the amount agreed upon has 
 been paid. Rogers v. Ball, 54 Ga. 15; 
 Tyler Cotton Press Co. v. Chevalier, 
 56 Ga. 494; Troutman v. Lucas, 63 Ga. 
 466. 
 
 1. Alvord ». Marsh, 12 Allen (Mass.), 
 606; Donohue v. Woodbury, 6 Cush. 
 (Mass.) 151; Simmons v. Almy, 103 
 
 Mass. 33; Easton v. Easton, 112 Mass. 
 443; Stimpson v. Poole, 141 Mass. 502; 
 Stockton V. Frey, 4 Gill (Md.), 406; 
 Howard v. Norton, 65 Barb. (N. Y.) 161; 
 Pierce v. Pierce, 25 Barb. (N. Y.) 243; 
 Brooks V. Moore, 67 Barb. (N. Y.) 393; 
 Powell w. Jones, 44 Barb. (N. Y.) 521; 
 Palmerton v. Huxford, 4 Denio (N. Y.), 
 166; Taylor w. Nussbaum, 2 Duer(N. Y.), 
 302; Neary v. Bostwick, 2 Hilt. (N. Y.) 
 514; Ogborn v. Hoffmann, 52 Ind. 439; 
 Warren v. Skinner, 20 Conn. 559; Potter 
 V. Douglass, 44 Conn. 541; Bull v. Bull, 
 43 Conn. 455; McDaniels z/. Lapham, 2i 
 Vt. 222; Childs V. Millville Mut. Ins. 
 Co., 56 Vt. 609; McCall V. Nave, 52 
 Miss. 494; Tyler Cotton Press Co. v. 
 Chevalier, 56 Ga. 494; Mathisz'. Bryson, 
 4 Jones (N. Car.) L. 50S ; Wapello Co. 
 V. Sinnaman, I G Greene (Iowa), 413; 
 Brick t'. Plymouth Co., 63 Iowa, 462; Cool 
 V. Stone, 4 Iowa, 219; Harris i/.Kennedy, 
 48 Wis. 500; Berdell v. Bissell, 6 Col. 
 162; Watson V. Elliott, 57 N.' H. 511; 
 Bryant v. Proctor, 14 B. Mon. (Ky.) 451; 
 U. S. V. Childs, 12 Wall: (U.S.) 232. 
 Compare Fulton v, Monona Co., 47 Iowa, 
 622; Wilson V. Palo Alto Co., 65 Iowa, 
 18. 
 
 Where a plaintiff, after an injury sus- 
 tained in his person from the tort of the 
 defendant, agrees with the defendant or 
 his agents that in satisfaction of such in- 
 jury the defendant should pay the ex- 
 penses incurred by the plaintiff by reason 
 of his injury, and should furnish him 
 with a free conveyance to his point of 
 destination, and the defendant performs 
 his part of the agreement, the plaintiff can- 
 not recover further damages for the tort. 
 Stockton V. Frey, 4 Gill (Md.), 406; Coon 
 V. Knap, 8 N. Y. 402; Ludington v. 
 Miller, 6 Jones & Sp. (N. Y.) 478; Rideal 
 V. Great W. R. Co., i F. & F. 706. 
 
 And where there is no express agree- 
 ment that the amount paid shall be in 
 satisfaction either in whole or in part of 
 the cause of action, the presumption is 
 that it was intended by the parties as a 
 full recompense for the injury and oper- 
 ates as an accord and satisfaction barring 
 a subsequent action to recover damages 
 for the same injury. Hinckle v. Minne- 
 apolis & St. L. R. Co., 15 Am. & Eng. 
 R. R. Cas. 391; s. c, 31 Minn. 434. 
 
 Where D., a passenger, was injured by 
 the negligence of a railroad company and 
 accepted a sum of money in full satisfac- 
 tion and discharge of all the claims and 
 causes of action he had against the com- 
 pany, held, that the cause of action was 
 
, ^Payment 
 
 ACCORD AND .SATISFACTION. 
 
 in Property; 
 
 7. Payment in Property. — A money debt may be satisfied by pay- 
 ment in property, if so accepted, whatever its value may be.^^ 
 
 8. New Consideration. — Although an agreement by a creditor to 
 accept payment of a part of his debt in satisfaction of the whole, 
 together with payment of such part by the debtor, does not, gen- 
 erally speaking,, constitute an accord and satisfaction, yet this 
 rule of law contemplates a part payment that is strictly a mere 
 part performance of the original obligation, and which in conse- 
 •quence confers no new benefit on the creditor, and imposes no 
 new burden on the debtor. But where by a mode or time of part 
 
 the defendant's negligence, which had 
 been satisfied in the deceased's lifetime, 
 ^nd that the death of D. did not create a 
 fresh cause of action. Read v. Great 
 East. R. Co., L. R. 3 Q. B. 555. 
 
 Where a woman accepted $55 in full 
 payment and satisfaction of any claim 
 for damages to certain city lots against 
 ■a railroad by reason of the construc- 
 tion of said railroad; and where subse- 
 ■quently the grade in front of the lots was 
 raised 5 feet to the great damage of said 
 lots, it was held that she could not re- 
 cover any further damages. Kansas 
 ■City V. Olathe R. Co., 30 Kan. 288. 
 
 A contractor's acceptance of payment 
 ■from the government and his assurance 
 that this payment will close the accounts 
 ■was held to be a full discharge of all 
 liabilities of the government for damages 
 resulting from the contract. Morris v. 
 U. S., 4 Ct. of CI. 354; Murphy v. U. S., 
 14 Ct. of CI. 508. 
 
 A written agreement acknowledging the 
 receipt of promissory notes fora certain 
 sum payable in three and twelve months 
 in full satisfaction of an assault and bat- 
 tery, was held to be a bar to further pro- 
 ■ceedings. Peace v. Stennett, 4 J. J. 
 Marsh (Ky.), 449. See also Smith v. 
 Kerr, I Barb. (N. Y.) 155. 
 
 But where the plaintiff after being 
 injured by a railroad accident, not sup- 
 posing that he had received any serious 
 injuries, accepted from the railroad a 
 trifling sum in compensation for damage 
 "to his clothes, it was held that the receipt 
 ■of this sum could not be set up as an ac- 
 cord and satisfaction for a patent and 
 severe injury to the brain or spine. Rob- 
 erts V. Eastern Counties R. Co., i F. & F. 
 460. 
 
 Neither was it a defence to an action 
 Ijy a father for the seduction of his 
 ■daughter that she had previously received 
 an allowance for the support of a bastard 
 child. Sellars v. Kinder, i Head. (Tenn.) 
 
 134- 
 
 I. Blinn v. Chester, 5 Day (Conn.). 360; 
 Bull V. Bull, 43 Conn. 455 ; Rose v. 
 
 Hall. 26 Conn. 392; Williams v. Stan- 
 ton, I Root (Conn.), 426; Neal v. Hand- 
 ley, 6 N. East. Repr. (111.) 45; Fisher j;. 
 May, 2 Bibb. (Ky.) 449; Jones v. Bullitt, 
 2 Litt. (Ky.) 242; Reid w. Bartlett, rg 
 Pick. (Mass.) 273; Bliss v. Shwarts, 64 
 Barb. (N. Y.) 215; Bryant z/. Gale, 5 Vt. 
 416; Ridlon V. Davis, 51 Vt. 457. 
 
 An agreement to accept property in 
 satisfaction is executed by a deliyery to 
 the person appointed by the party to re- 
 ceive it. Anderson v. Highland Turn- 
 pike Co., 16 Johns. (N. Y.) 86; Grocers' 
 Bankof N.Y. v. Fitch, i Th. & C. (N. Y.) 
 651- 
 
 An agreement that the debtor shall re- 
 linquish property in satisfaction of a debt 
 is not valid, unless it is also agreed at 
 what time it shall be relinquished. Pence 
 V. Smock, 2 Blackf. (Ind.) 315; State 
 Bank v. Littlejohn, i Dev. & Bat. (N. 
 Car.) L. 563, 565. 
 
 It is, however, only when property is 
 received in satisfaction, wiihout any price 
 being agreed upon at which it is to be 
 estimated between them, that it becomes 
 a valid accord and satisfaction. But when 
 the debtor delivers to his creditor and the 
 creditor receives property at a price 
 agreed upon by them, and the amount 
 thus paid is less than the debt, it is not 
 accord and satisfaction notwithstanding 
 the creditor agrees to take it as full pay- 
 ment of the debt. Howard v. Norton, 
 65 Barb. (N. Y.) 161. ■ 
 
 Where a creditor agreed to take certain 
 property of his debtor in satisfaction of 
 his debt upon the faith of the represen- 
 tations of the debtor as to its condition, 
 and he took it under such agreement 
 after he had an opportunity to test their 
 truth, held, that this was a good accord 
 and satisfaction. Williams v. Phelps, 16 
 Wis. 80. 
 
 It is not a good accord and satisfaction, 
 however, to pay a debt upon a revenue 
 bond by delivery and acceptance of prop- 
 erty. Collectors of revenue must receive 
 money. Martin v. U. S., 4 T. B. Mon. 
 (Ky.) 487. 
 
 99 
 
Sew Conaiieza.tioa. ACCOJiD AND S ATI SF ACTION. TSewZmaiteifAlmx.. 
 
 payment, variant from that provided for in the contract, a new 
 benefit is or may be conferred or burden imposed, a new consider- 
 ation arises out of the transaction, and gives validity to the agree- 
 ment of the creditor.* 
 
 Payment in part at an earlier date or in a different place than 
 that agreed upon is a good satisfaction, if so received.** 
 
 1. Rose V. Hall, 26 Conn. 392; Warren 
 V. Skinner, 20 Conn. 557; Blinn v. Ches- 
 ter, 5 Day (Conn.), 359; Bull v. Bull, 
 43 Conn. 455; Pearson v. Thomason, 15 
 Ala. 700; Higgins v. Halligan, 46 111. 
 173; Bailey v. Cowles, 86111. 333: Vance 
 V. Lukebill, 9 B. Mon. (Ky.) 249; Cur- 
 ran V. Rummell, 118 Mass. 482; Brooks 
 ■u. White, 2 Mete. (Mass,) 283; Schmidt 
 V. Ludwig, 26 Minn. 85; Mitchell v. 
 Sawyer, 71 N. Car. 70; Hayes ». David- 
 son, 70 N. Car. 573; Watson v. Elliott, 
 57 N. H. 511, 513; Daniels v. Hatch, 21 
 N. J. L. 391; Douglass v. White, 3 Barb. 
 (N. Y.) Ch. 621; Brooks v. Moore, 67 
 Barb. (N. Y.) 394; Taylor v. Nussbaum, 
 2 Duer (N. Y.), 302; Bowe v. Gano, 9 
 Hun (N. Y.), 6. 
 
 Where A, being indebted to B, and 
 having an intention to petition in bank- 
 ruptcy, proposed a compromise to B 
 through his own attorney C, and where 
 B agreed to receive a certain portion of 
 the debt in full settlement, which portion 
 A accordingly paid over to C, and C 
 notified B that he had received the 
 amount for him, to which B made no ob- 
 jection, and A in consequence took no 
 further steps to become a bankrupt, — held, 
 that the payment to C was in effect a 
 payment to B; and that A's abandoning 
 his intention of becoming a bankrupt was 
 a sufficient consideration for receiving 
 a part of the debt in settlement of the 
 whole. Hinckley v. Arey, 27 Me. 362. 
 
 Procuring a written agreement from 
 one probably liable on the default of the 
 defendant that he will take no advantage 
 of the discharge of the defendant is a 
 good consideration to make part payment 
 a satisfaction. Booth v. Campbell, 15 
 Md. 569. 
 
 Where the answer set forth that a cer- 
 tain contract was assigned to the plain- 
 tiff in full payment and satisfaction of a. 
 certain note sued on. it is immaterial how 
 much was due on the contract. Luke v. 
 Johnnycake, g Kan. 511. 
 
 An agreement by a creditor to release 
 a portion of his debt in consideration 
 that the debtor, who was insolvent, would 
 apply the yearly proceeds of his personal 
 labor in payment of the residue is valid. 
 Merchants' Bank v. Davis, 3 Ga. 112; 
 Molyneaux v. Collier, 13 Ga. 407. 
 
 In an action on a liquidated debt of 
 $299, the creditor orally agreed to accept 
 $150 in full if the debtor paid the costs 
 and expenses. The $150 was paid. The 
 debtor subsequently paid the costs. Held, 
 that the last payment made a sufficient 
 additional consideration, and that the 
 transaction was a good accord and satis- 
 faction. Mitchell V. Wheaton, 46 Conn. 
 
 315. 
 
 Where a debtor transfers specific prop- 
 erty to trustees for the use of his credi- 
 tors under a mutual agreement signed 
 by the creditors whereby they accept the 
 property in full satisfaction and discharge- 
 of their several demands, there is a valid 
 accord and satisfaction. Bartlett v. 
 Rogers, 3 Sawy. (U. S.) 62; Therasson 
 V. Peterson, 4 Abb. Ct. App. (N. Y.) 396;. 
 Watkinson v. Inglesby, 5 ]ohns.'(N. Y.)- 
 386; McCreary v. McCreary, 5 Gill & J. 
 (Md.) 147; Murray v. Snow, 37 Iowa, 
 410. 
 
 Where a debtor has induced a number 
 of creditors to accept a composition less 
 than their entire demand, each acting 
 upon the faith of the engagement of the 
 others, it will be a valid accord and satis- 
 faction. Such a composition would be 
 enforced, as it would otherwise operate 
 as a fraud upon the other creditors who- 
 were induced by it to accept the com- 
 position. Daniels v. Hatch, i Zabr. (N. 
 J.) 391; Murray v. Snow, 37 Iowa, 410; 
 Fellows V. Stevens, 24 Wend. (N. Y.). 
 294; Greenwood v. Lidbetter, 12 Price,^ 
 183; Steinman v. Magnes, II East, 390. 
 
 Where the assignee of a note has 
 joined in such a composition, and the 
 satisfaction has been duly executed, it 
 will be a valid accord and satisfaction so 
 as to bar the assignee to recover from 
 his assignor. Pontions v. Durflinger, 59. 
 Ind. 27. 
 
 But an agreement by a creditor with 
 his debtor to accept a certain percent- 
 age of the debt in full satisfaction there- 
 of, " provided that no other creditor shall 
 receive more than the same percentage 
 of his claim," is void for want of con- 
 sideration. Perkins v. Lockwood, loo- 
 Mass. 249; Bemis v. Hoseley, 16 Gray 
 (Mass.), 63. 
 
 2. Smith V. Brown, 3 Hawks (N. Car.), 
 580; Jones V. Bullitt, 2 Bush (Ky.), 49;. 
 
 100 
 
Note of 
 
 ACCORD AND SATISFACTION. 
 
 Third Fereoiir 
 
 9. Note of Third Person. — The note of a third person for a less 
 amount than due, given and received in payment, is a good satis- 
 faction.*^ 
 
 10. Additional Security. — It is the general rule that giving further 
 security for part of a debt, or other security, though for a less sum 
 than the debt, and acceptance of it in full of all demands, make a 
 valid accord and satisfaction.'-* 
 
 Fenwick v. Phillips, 3 Mete. (Ky.) 87; 
 Williams v. Langford, 15 B. Mon. (Ky.) 
 566; Ricketts v. Hall, 2 Litt. (Ky.) 249; 
 Brooks V. White, 2 Mete. (Mass.) 283; 
 Bowker v. Childs, 3 Allen (Mass.), 434; 
 Barry v. Goodrich, 98 Mass. 335; Sehwei- 
 der V. Lang, 29 Minn. 254; Levy v. Very, 
 12 Ark. 148; Rose v. Hall. 26 Conn. 392. 
 Robertson v. Campbell, 2 Call (Va.), 421; 
 Reid V. Hibbard, 6 Wis. 175, 193. 
 
 A contract was made to pay $2000 in 
 Mississippi, but the creditor agreed to 
 accept $1500 in full satisfaction if paid in 
 New York. Held, that this was a suf- 
 ficient consideration to bind the payee 
 if the tender of payment in New York 
 was made before the withdrawal of the 
 proposition reached Mississippi. Jones 
 ■u. Perkins, 29 Miss. 139. 
 
 If it is agreed to pay at an earlier date, 
 such payment must be made promptly to 
 make it a valid satisfaction. Pfarding v. 
 Commercial Loan Co., 84 111. 251; Rob- 
 ertson V. Campbell, 2 Call (Va.). 421. 
 
 When an agreement is made by a 
 debtor to deliver, in full satisfaction of a 
 larger sum due, his notes or money for 
 a less sum, even though there is a con- 
 sideration for the agreement it must, in 
 order to operate as a discharge, be fully 
 and fairly performed in all its parts, both 
 in time and amount. Memphis z*. Brown, 
 I Flipp. (U. S.) 188. 
 
 Though part payment of a debt is not 
 a "sufficient consideration for the release 
 of the whole, nevertheless a release under 
 seal of a judgment is valid, the seal im- 
 porting a consideration. Maclary v. 
 Reznor, 3 Del. Ch. 445. 
 
 A mere offer of the judgment creditor 
 to accept a less amount in satisfaction of 
 the judgment, if the offer is not accepted 
 by the debtor, will not be a sufficient 
 accord and satisfaction to bar the re- 
 covery of the full amount of the judg- 
 ment. Bird V. Smith. 34 Me. 63; s. c, 
 56 Am. Dec. 635. 
 
 1. Brassell v. Williams. 51 Ala. 349; 
 Letcher w. Bank, I Dana (Ky.), 82; Smith 
 V. Bettger, 68 Ind. 254; Lee v. Oppen- 
 heimer, 32 Me. 253; Goodnow v. Smith. 
 iS Pick. CMass.) 414; Brooks w. White, 2 
 Mete. (Mass ) 283; Guild v. Butler, 127 
 Mass. 386; Webb v. Goldsmith, 2 Duer 
 
 (N. Y.), 413; Frisbiej/. Larned, 21 Wend, 
 (N. Y.) 450; Booth V. Smith, 3 Wend. 
 (N. Y.) 66; Le Page v. McCrea, i Wend. 
 (N. Y.) 164; Stagg V. Alexander, 55 
 Barb. (N. Y.) 70; Conkling v. King, 10 
 Barb. (N. Y.) 375; Bliss v. Sehwarts, 64 
 Barb. (N. Y.) 215; 7 Lans. (N. Y.) 186; 
 Boyd V. Hitchcock, 20 Johns. (N. Y.)76j 
 Bunge V. Koop, 5 Rob. (N. Y.) 12; Staf- 
 ford V. Bacon, iHill(N. Y.), 522; Currie 
 V. Kennedy, 78 N. Car. 91; Dryden v. 
 Stephens, Ig W. Va. i. 
 
 But where the note of the third party 
 is obviously void, as the note of an in- 
 fant; and where such note has been suc- 
 cessfully defended on such ground, the 
 accord and satisfaction will be set aside 
 as void for want of consideration. Went- 
 worth V. Wentworth, 5 N. H. 410. 
 
 Where the note of a third person, pay- 
 able to the creditor, is given in payment 
 of a debt, but is not indorsed by the 
 debtor, it does not extinguish the debt, 
 but is considered only to be collateral 
 security. Hunter v. Moul, 98 Pa. St. 13. 
 
 Where A owed B, and C owed A, it 
 was agreed between the parties that B 
 should receive C's note in satisfaction of 
 his debt. C was insolvent at the time, 
 but the fact was not known. Held, that 
 A's debt was extinguished. Cadens v. 
 Teasdale, 53 Vt. 469. 
 
 The giving and receiving of one obli- 
 gation in lieu of another, the parties to 
 which or some of them are different, may 
 be pleaded as an accord and satisfaction. 
 But to render it available the condition 
 of one or both parties must be rendered 
 better. BuUen v. McGillicuddy, 2 Dana 
 (Ky.), go; Mehan v. Thompson, 71 Me. 
 492. 
 
 Where a note of a third party for the 
 full amount has been given and accepted 
 in payment of a preceding debt, it ex- 
 tinguishes even a judgment debt. State 
 Bank v. Fletcher, 5 Wend. (N. Y.) 85; 
 Booth V. Smith, 3 Wend. (N. Y.) 66; 
 Jones V. Ransom, 3 Ind. 327; Sanders t). 
 Branch Bank at Decatur. 13 Ala. 353. 
 
 2. Boyd V. Hitchcock, 20 Johns. (N. 
 Y.) 76; Le Page v. McCrea, i Wend. (N.. 
 Y.) 164; Nevins v. Deperries, i Edm. 
 (N. Y.) Sel. Gas. 196: Pardee v. Wood, 
 8 Hun (N. Y.). 584; Dolsen v. Arnold|, 
 
 lOl 
 
rurther Security,. ACCORD AND SA TISFACTION. Payment by Nota 
 
 11.. Payment by Note. — It is the well-settled rule in most of the 
 
 States that a note of the debtor given and received in payment of 
 
 a pre-existing debt does not extinguish the right of action on the 
 
 debt, unless it be expressly so understood by the parties.^ .(See 
 
 . Bills and Notes.) 
 
 10 How. Pr. (N. Y.) 529; Kellogg^ v. 
 Richards, 14 Wend. (N. Y.) 116; Strong 
 V. Dean, 55 Barb. (N. Yr) 337; Gunn v. 
 McAden, 2 Ired. (N. Car.) Eq.' 7g; Gor- 
 don w. Price. 10 Ired. (N. Car.) 385; Col- 
 burn V. Gould, I N. H. 279; PuUiam v. 
 Taylor, 50 Miss. 251 ^ Glenn v. Smith, 2 
 Gill & J. (Md.) 494; Mason v. Camp- 
 bell, 27 Minn. 54; Mclntyre w. Kennedy, 
 29 Pa. St. 448, 454; Whitsettw. Clayton, 
 5 Colo. 476; Maze v. Miller, i Wash. 
 (U. S.) 328. 
 
 If a creditor receive from his debtor in 
 satisfaction of his claim a note for a less 
 sum, signed by the debtor and his wife, 
 which all the parties at the titne suppose 
 is binding upon her, and such note is 
 afterward paid out of her separate prop- 
 erty, it will constitute a valid discharge of 
 the original debt. Bowker v. Harris, 30 
 Vt. 424. 
 
 So is a note for less amount than the 
 debt indorsed by a third party a good 
 accord and satisfaction. Varney v. Con- 
 ery, 77 Me. 527. 
 
 Where a promise by a debtor to pay a 
 smaller sum than that which is due to ex- 
 tinguish an existing debt is reinforced by 
 the debtor's giving, as additional security, 
 a mortgage of real estate in which his 
 wife joins, the pledge of her inchoate 
 right of dower for such payment is suf- 
 ficient to make it a valid accord and satis- 
 faction. Keeler v. Salisbury, 33, N. Y. 
 648. 
 
 Where one party furnished another 
 with money, and accepted a note there- 
 for with the understanding that the 
 ■payor should procure third parties to 
 assign to himself certain liens on lands 
 claimed by the payee, which liens the 
 payor should hold lor the benefit of the 
 payee in satisfaction of the note, such 
 agreement amounted to an accord and 
 satisfaction and constituted a payment of 
 the note. Treadwell v. Himmelmann, 
 . 50 Cal. 9. , 
 
 In the absence of fraud, an acceptance 
 by the creditor of a third person's deed 
 of all his title in certain land may be a 
 good consideration to sustain an agree- 
 ment to take a part for the whole debt, 
 although the title fail. Reed v. Bartlett, 
 19 Pick. (Mass.) 273. 
 
 When a draft upon a third person is 
 offered by the debtor and accepted in full 
 satisfaction by the creditor, who there- 
 
 upon surrenders the evidences of indebt- 
 edness and the draft is duly paid, it 
 amounts to a good accord and satisfac- 
 tion. Stagg V. Alexander, 55 Barb. 
 (N. Y.) 70. Comparf'W eddigen t/. Bos- 
 ton Elastic Fabr. Co., 100 Mass. 422; 
 Wentworth v. Wentworth, 5 N. H. 410. 
 
 The acceptance of an Eastern draft, 
 though for less than the amount of a 
 judgment, may be good as an accord 
 and satisfaction thereof. Reid v. Hib- 
 bard, 6 Wis. 175. 
 
 But where a debtor, merely for the 
 purpose of securing a part of the note 
 and not by way of substitution, gives a 
 mortgage on his own estate alone, it is 
 a mere accord without satisfaction, and 
 does not extinguish the debt. Platts v. 
 Walrath, Hill &, Den. Suppl. (N. Y.) 
 
 59- 
 
 The acceptance of a new security for 
 an existing debt does not operate as a 
 payment unless so intended by the par- 
 ties, Kemmerer's Appeal, 102 Pa. St. 
 558. 
 
 So an assignment of property by deed 
 to secure debts, with a power of sale on 
 giving six months' notice, will not be a 
 •valid satisfaction, but only a collateral 
 security even where no notice bas been 
 given;, such an assignment will at no 
 time bar an action on the original debt 
 unless specially provided in the deed. 
 Emes V. Widdowson, 4 C. & P. 151; 
 Jones V. Fennimore, i Greene (Iowa), 
 134; Stone V. Miller, 16 Pa. St. 450. 
 
 1. Glenn 2>. Smith, 2 Gill & J. 
 (Md.) 493; Larrabee v. Talbolt, 5 Gill 
 (Md.), 426; Wyman v. Rae, 11 Gill 
 (Md.), 416; Mudd V. Harper, i Md. no; 
 Young V. Hibbs, 5 Nebr. 433; Jones v. 
 Johnson, 3 W. & S. (Pa.) 276; Estate of 
 Davis, 5 Whart, (Pa.) 530; Weakly v. 
 Bell, 9 Watts (Pa.) 273; Brown v. Olm- 
 sted, 50 Cal. 162; Steamb. Charlotte v. 
 Hammond, 9 Mo. 59; Sellars v. John- 
 son, 65 N. Car. 104; Hill v. Sleeper, 58 
 Ind. 221; Bishop v. Welch, 35 Ind. 521; 
 Nightingale v. Chafee, 11 R. I. 609; 
 Wilburr v. Jernegan, 11 R. I. 113; 
 Swain v. Fyazier, 35 N. J. Eq. 326; 
 Judge V. Fiske. 2 Speer's L. (S. Car.) 
 436; Exp. Williams, 17 S, Car. 396; 
 Brown v. Dunckel, 46 Mich. 29; Mason 
 V. Warner, 43 Mich. 439; Jeffrey v. Cor- 
 nish. 10 N. H. 505; Wright v. First 
 Crockery Ware Co., i N. H. 281; Wil- 
 
 103 
 
Note for Note. ACCORD AND SATISFACTION. Joint Obligors. 
 
 12. Note for Note. — The giving of a new note for an old one, which 
 has beconne due, does not extinguish the old note nor the debt 
 unless it is so expressly agreed ; especially where the creditor 
 thereby would be deprived of surety.^ (See Bills AND NOTES.) 
 
 13. Joint Obligors. — An accord and satisfaction with one of several 
 
 helm V. Schmidt, 84 111. 183; Dougal v. 
 Cowles, 5 Day (Conn.), 511; Brugman z;. 
 McGuire, %2 Ark. 733; Costar.z'. Davies, 
 8 Ark. 213: Keel v. Larkin, 72 Ala. 493; 
 Graves v. Shulman. 5g Ala 406; Sheehy 
 V. Mandeville, 6 Cranch (U. S.), 253; Ke 
 Hurst, I Flipp. (U.S.) 462; Bank of U. 
 S. V. Daniel, 12 Pet. (U. S.) 32; Risher 
 z/. The Frolic, i Woods (U. S.), 92; Sibree 
 V. Tripp, 15 M. & W. 23. 
 
 Giving a note is nopayment of a book 
 debt. It only suspends the right of 
 action during the time allowed for pay- 
 ment by the note. Putnam v. Lewis. 8 
 Johns. (N. Y.) 389; Burdick v. Green. 15 
 Johns. (N. Y.) 247; VVhitbeck v. Van 
 Ness, II Johns. (N. Y.)409: Murray z/. 
 Gouverneur, 2 Johns. Cas. (N. Y.) 438, 
 note; Herring v. Sanger, 3 Johns. Cas. 
 (N. Y) 71, note; Frisbie v. Larned, 21 
 Wend. (N. Y.) 450; Conklihg v. King, 10 
 Barb. (N. Y.) 372; Hughes v. Wheeler, 
 8 Cow. (N. Y.) 77; but see Myers v. 
 Wells, 5 Hill (N. Y.), 463. 
 
 This principle does not hold .good, 
 however, when the note has been trans- 
 ferred. Harris v. Johnston, 3 Cranch 
 (U. S.), 308. 
 
 In Massachusetts, Maine, and Vermont 
 the doctrine has been held that a note 
 given and received in payment of an an- 
 tecedent account is a bar to an action on 
 the account, whether the note is paid or 
 not. Fowler v. Bush, 21 Pick. (Mass ) 
 230; Melledge v. Boston Iron Co., 5 
 Cush. (Mass.) 15S; Wyman v. Fabeus, 
 III Mass. 81; Homes v. Sfnyth. r6 Me. 
 177; Bangor v. Warren, 34 Me. 324; 
 Shumway v. Reed, 34 Me. 560; Newall 
 V. Hussey, 18 Me. 249 ; Varner v. Noble- 
 borough, 2 Greenl. (Me.) 121; Stephens 
 V. Thompson, 28 Vt. 77; Hutchins v. 
 Olcutt, 4 Vt. 549; Kimball v. The Anna 
 Kimball, 2 Cliff. (U. S.)4; Hudson v. 
 Bradley, 2 Cliff. (U. S.) 130. 
 
 Giving a negotiable note in these 
 States is not payment so as to prevent 
 the vendor from retaining the goods until 
 payment in case of the buyer's insol- 
 vency while the note is yet tinnegotiated. 
 • Arnold z/. Delano. 4 Cush. (Mass.) 33. 
 
 The presumption in Massachusetts 
 that a note is payment of a contract 
 debt is subject to qualification, and 
 may be rebutted and controlled by 
 evidence or by the admitted facts of 
 the case. Parham Sewing-machine Co. 
 
 V. Brock, 113 Mass. 194; Appleton 
 ■J. Parker, 15 Gray (Mass ) 176; Mor- 
 ton V. Austin, 12 Cush. (Mass.) 392; 
 Taft' V. Boyd, 13 Allen (Mass ), 86; 
 Curtis V. Hubbard, g Mete. (Mass.) 328; 
 Butts V. Dean, 2 Mete. (Mass.) 76; Lov- 
 ell V. Williams, 125 Mass. 439; Me 
 Clapp, 2 Low. (U. S.) 226. The same is 
 held in Maine. Perrin v. Keene, 19 Me. 
 355. And in Vermont. Lazell v. Lazell, 
 12 Vt. 448, where it was held not to be 
 extended to a case in which the note was 
 lost. 
 
 The doctrine held in those States that 
 the delivery and acceptance of a promis- 
 sory note in payment of a pre-existing 
 debt extinguishes the debt does not 
 extend to checks, even from a third party 
 upon a fourth. Weddigen v. Boston 
 Elastic Fabr. Co., 100 Mass. 422; Mar- 
 rett V. Brackett. 60 Me. 524. 
 
 A void note received in payment of a 
 debt does not extinguish the debt ; as in 
 the case of a note given for a patent 
 right, which fact was not recorded on the 
 face of the note as required by statute. 
 Graham's Estate, 14 Phila. (Pa.) 280. 
 
 1. Hess z/. Diile, 23 W. Va. 90; Mer- 
 chants' Bank v. Good. 21 W. Va. 455. 
 
 One note is paid by another when the 
 latter is accepted as payment; and if it 
 be negotiable the presumption is that it 
 is so received. Weston v. Wiley, 78 Ind. 
 54- 
 
 Whether a new note takes the place of 
 the old and cancels it, or the old note is 
 actually paid and a new note is dis- 
 counted for the amount of it, it is a re- 
 newal, if a renewal is intended. It is 
 the intention of the parties and their 
 understanding of it which makes it a 
 renewal. Flanagan v. Harableton, 54 
 Md. 222; U. S. Bank v. Bank of Georgia, 
 10 Wheat. (U. S.) 333; Slaymaker w. 
 Gundacker, 10 S. & R. (Pa.) 83; Gault v. 
 McGrath, 8 Casey (Pa.), 397; Hacker w. 
 Perkins, 5 Whart. (Pa.) 95; Cake v. 
 Lebanon Bank, 86 Pa. St, 303; Re Dixon, 
 2 McCrary. (U. S ). 556; Auburn City 
 Bank v. Hunsiker, 72 N. Y. 252; Second 
 Nat. Bank v. Poucher, 56 N. Y. 348; 
 Cadiz Bank v. Slemmons, 34 Ohio St. 
 
 142. 
 
 A r.ote given in satisfaction of a prior 
 one operates as a discharge, and releases 
 the sureties thereon. Wolf v. Fink, i 
 Pa. St. 435. 
 
 103 
 
Joint Obligors. ACCORD AND SATISFACTION. Joint Obligors. 
 
 obligors, whether they are bound jointly or jointly arid severally,, 
 discharges the others, and may be pleaded in bar by all ; but to 
 have this effect there must be a technical release under seal.* 
 
 1. Line V. Nelson, 38 N. J. L. 358; 
 Cornell v. Masteii, 35 Barb. (N. Y.) 157; 
 Rowley v. Stoddard, 7 Johns. (N. Y.) 207; 
 Frink v. Green, 5 Barb. (N. Y.) 455; 
 Booth V. Campbell, 15 Md. 569; Goss v. 
 Ellison, 136 Mass. 503; American Bank 
 V. Doolittle. 14 Pick. (Mass.) 123; 
 Stimpson ». Poole, 141 Mass. 502; Ward 
 V. Johnson, 13 Mass. 148; Tuckermann 
 v. Nevvhall, 17 Mass. 581; Shaw t/. Pratt, 
 22 Pick. (Mass.) 305; Smith v. Bar- 
 tholemew, i Mete. (Mass.) 276; Burson 
 V. Kincaid, 3 Pa. 57; U. S. v. Thompson, 
 Gilp. (U. S.) 614; Lovejoy v. Murray, 
 3 Wall. (U. S.) i; Elliott v. Holbrook, 
 33 Ala. 659; Brown v. Marsh, 7 Vt, 327; 
 Vandever v: Clark, 16 Ark. 331; Arm- 
 strong z/. Hayward, 6 Cal. 183; Drink- 
 water V. Jordan, 46 Me. 432; Berry 
 V. Gillis, 17 N. H. 9; McAllister v. 
 Dennin, 27 Mo. 40; Ayer v. Ashmead, 
 31 Conn. 447. 
 
 Accord and satisfaction with one of 
 several inures to the benefit of all. Wal- 
 lace V. Rensall, 7. M. & W. 204; Nichol- 
 son V. Revill, 4 A. & E. 675. 
 
 A release without a seal will have the 
 same effect if the instrument itself shows 
 a consideration. Heckman z/.' Man- 
 ning, 4 Colo. 543. 
 
 But an unsealed instrument given 
 without consideration in terms releasing 
 one of several joint debtors, but expressly 
 reserving the creditors' rights against the 
 others, will not discharge them. Honeg- 
 ger V. Wetstein, 47 N. Y. Super. Ct. 125; 
 Northern Ins. Co. v. Potter, 63 Cal. 157. 
 
 Where a creditor, receives from one of 
 a number of joint and several debtors by 
 successive guardian bonds, a sum con- 
 siderably less than the aggregate amount 
 of their indebtedness, and gives him an 
 instrument under seal releasing all claims 
 against him or his representatives, and 
 covenanting to execute any and all in- 
 struments which may be necessary to 
 relieve the party making such payment 
 from all liability to the other joint debt- 
 ors, such instrument will have the effect 
 of an equitable release to the other debt- 
 ors of all in excess of their aliquot portion 
 of the joint indebtedness. Dudley v. 
 Bland, 83 N. Car. 220. 
 
 A release to one of two joint and 
 several obligors is a release of both, but 
 a covenant not to sue one of two obligors 
 cannot have the effect of a release of 
 both. Crane v. Ailing, 15 N. J, L. 423; 
 Walker v. McCuUoch, 4 Me. 421; Rus- 
 
 sell V. Adderton, 64 N. Car. 417; Win- 
 ston V. Dalby, 64 N. Car. 299. 
 
 An instrument not under seal purport- 
 ing to discharge one of two joint debtors 
 from his share of the debt for a consider- 
 ation stated is no defence to an action 
 against the joint debtors. McAUester v. 
 Sprague, 34 Me. 296. 
 
 If the creditor of a corporation by an 
 instrument under seal release a stock- 
 holder from all personal liability for his 
 debt, he thereby discharges the corpora- 
 tion and the other stockholders to the- 
 same extent as the one to whom the re- 
 lease is executed, and if it be only for his 
 proportion of the debt the company and 
 other stockholders are released ^ro tanto. 
 Prince v. Lynch, 38 Cal. 528; Phoenix 
 Bank v. Bumstead, 18 Pick. (Mass.) 77. 
 
 The voluntary release of one joint- 
 judgment debtor releases his co-defend- 
 ant. Lamb ii. Gregory, 12 Neb. 506; U.S. 
 V. Thompson. Gilp. (U. S.) 614; Collier 
 V. Field, I Mon. Terr. 612. 
 
 A mere judgment against one of sev- 
 eral CO debtors without execution will not 
 be an accord and satisfaction so as to 
 discharge the co-debtors. McLaurine v. 
 Monroe, 30 Mo. 462. 
 
 An accord and satisfaction with one of 
 several joint debtors on payment of his 
 proportion of the debt does not discharge 
 the others if it was not the intention of 
 the parties. Burke v. Noble, 48 Pa. St. 
 168; Noble z/. Burke, 5 Phila. (Pa.) S26. 
 
 In Tennessee it was held that the jury, 
 under proper instructions, must judge 
 whether the effect of a release of the 
 obligor in an instrument was to discharge 
 a co-obligor entirely or to discharge one 
 from the joint liability for his co-obligor's 
 half of the obligation. Richardson v. 
 McLemore, 5 Baxt. (Tenn.) 586. 
 
 In the same State accord and satisfac- 
 tion to be a valid release need not be 
 under seal, although it must be signed. 
 An unsigned entry on a note, " Received 
 of M. $1063, his part, principal and in- 
 terest of this to date," was held not to 
 operate as a release to M., and parol 
 evidence was not admissible to show that 
 such release was intended by the parties. 
 Simpson v. Moore, 6 Baxt. (Tenn.) 371. 
 
 A judgment confessed by one partner ' 
 operates as a satisfaction and releases the 
 firm. Frisbie v. Larned, 21 Wend. (N. Y.) 
 450. 
 
 A creditor of a dissolved partnership 
 accepted in part satisfaction of his claim 
 
 104 
 
.Joint Tort-feasors. ACCORD AND SATISFACTION, joint Tort-feasors. 
 
 14. Joint Tort-feasors. — A written instrument given to one of 
 two joint tort-feasors, and reciting the receipt from him of a 
 ■certain sum "as full payment as per claim," is a bar to an ac- 
 tion against the other tort-feasors, and oral evidence is inadmissi- 
 ble to show that the sum paid was intended to be received as 
 part and not as full payment.^ 
 
 the note of one of the partners, and prom- 
 ised to discharge the maker from liability 
 -for the partnership debt. Held, to be an 
 effectual release of the other partners. 
 Luddington v. Bell, 77 N. Y. 138; s. c, 
 33 Am. Rep. 601; Waydell v. Luer, 3 
 Den. (N. Y.) 410; Arnold v. Camp, 12 
 Johns. (N. Y.) 409; Gray v. Brown, 22 
 Ala. 262. 
 
 But a release of one partner does not 
 release the other if the release so pro- 
 vides. Williams v. Hitchings, 10 Lea 
 (Tenn.). 326. 
 
 So it was held not to be the release of 
 a partnership debt, but merely a covenant 
 to indemnify the partner who paid the 
 money, where the creditor, upon receiv- 
 ing nearly one half of the amount of a 
 ^partnership's obligation from one of the 
 partners, signed a receipt which con- 
 tained the following clause: " I do hereby 
 consent and agree that the other partners 
 -shall and will duly pay the balance on 
 said obligation without further cost and 
 detriment to said T." (the paying part- 
 ner). Hendrick v. O'Neill. 48 Ga. 631. 
 
 1. Goss V. Ellison, 136 Mass. 503. 
 
 Accord and satisfaction by one of sev- 
 eral obligors or wrong-doers is a satis- 
 faction as to all; and a partial satisfac- 
 tion by one of several wrong-doers is a 
 satisfaction pro tanto as to all. Mer- 
 chants' Bank v. Curtis, 37 Barb. (N. Y.) 
 
 .3I7. 
 
 Where the amount of damages for an 
 injury by two^or more joint tort-feasors 
 to plaintiff is undecided, and not sus- 
 ceptible of estimation, the release of one 
 ■ of them for a certain sum releases them 
 all — Long V. Long, 57 Iowa, 497; Urton 
 V. Price, 57 Cal. 270 — unless the creditor 
 has expressly renewed his right against 
 the other debtors. Irwin v. Scribner, 
 15 La. Ann. 583. And this holds good 
 • even where it was provided that the 
 other defendants were not to be affected 
 by the stipulation, and that plaintiff re- 
 :served all rights against them. Mitchell 
 V. Allen, 25 Hun (N. Y.) 543., 
 
 After judgment has been rendered 
 the tort-feasors become joint debtors, and 
 /the judgment creditor may compromise 
 -with one and discharge him from liabil- 
 ity, without affecting the liability of the 
 .others for the balance remaining due on 
 
 the judgment or discharging them there- 
 from. Irvine v. Millbank,36 N. Y. Super. 
 Ct. 264. 
 
 In an action against two joint carriers 
 for negligence, a parol release of one be- 
 fore suit, was considered a release of 
 both, though the release had been made 
 at the request of the party not released, 
 and with the express understanding that 
 it should not affect the rights of the plain- 
 tiff against this party. Bronson v. Fitz- 
 hugh, I Hill (N. Y.), 185. 
 
 In an action of trespass against two 
 persons for assault and battery, judgment 
 was obtained against one by default. 
 The plaintiff, while suit against the sec- 
 ond one was pending, released the judg- 
 ment against the first defendant, in order 
 to render him a competent witness. 
 Ifeld, that the release discharged both 
 defendants. Allen v. Wheatley, 3 Blackf. 
 (Ind.) 332. 
 
 So where a convict, injured by the 
 negligence of the contractors under 
 whom he was employed, received com- 
 pensation from the State, he was debarred 
 from suing the contractors. Metz v. 
 Soule, 40 Iowa, 236. 
 
 Where the facts in the case are such 
 that the amount of damages sustained by 
 the injured party can be made certain, it 
 becomes a question of fact for the court 
 and the jury to decide whether he has 
 received full satisfaction for his injuries 
 through an accord and satisfaction with 
 one of the defendants. In such a case, a 
 I'elease of one of the wrong-doers, not 
 under seal, will be explained according 
 to the intention of the parties, and a 
 release of one will not release all. Ellis 
 V. Esson, 50 Wis. 138; Brown v. Cam- 
 bridge, 3 Allen (Mass.), 475; Stone v. 
 Dickinson, 5 Allen (Mass.), 29; Shaw v. 
 Pratt, 22 Pick. (Mass.) 307; Pond v. Wil- 
 liams, I Gray (Mass.), 630, 636: McCrillis 
 V. Hawes, 38 Me. 568; Gilpatrick v. 
 Hunter. 24 Me. 18; Eastman v. Green, 
 34 Vt. 390; Spencer v. Williams, 2 Vt. 
 209; Chamberlin v. Murphy, 41 Vt. no; 
 Sloan V. Herrick, 49 Vt. 328; Ellis v. 
 Bitzer, 2 Ohio, 89; Knickerbacker v. Col- 
 ver, 8 Cow. (N. Y.) rii; Matthews v. 
 Chicopee Co., 3 Robt. (N. Y.) 712; Bank 
 V. Messenger, 9 Cow. (N. Y.) 37; Irvine 
 V. Milbank, 15 Abb. Pr. (N.Y.) N. S. 378; 
 
 105 
 
Joint makers. 
 
 ACCORD AND SATISFACTION. Joint Creditors. 
 
 15. Joint Makers of a Note. — ^The discharge of one maker 
 of a joint and several note discharges all the joint makers.^ (See 
 Bills and Notes.) 
 
 16. Joint Creditors. — An accord and satisfaction with one of two 
 or more joint creditors bars an action by the other creditors 
 against the debtor.* 
 
 17. Fraud and Misrepresentations. — Accord and satisfaction pro- 
 cured by the debtor's wilfully misrepresenting or suppressing any 
 
 Merchants' Bank w. Curtis, 37 Barb. 
 (N. Y.)3I9; Snow v. Chandler, 10 N. H. 
 92; Bloss V. Ply male, 3 W. Va. 393; 
 Line v. Nelson, 38 N. J. L. 358;,Gunther 
 V. Lee, 45 Md. 60; Bonney v. Bonncy, 
 29 Iowa, 448; Neligh v. Bradford, I Nebr. 
 451. 
 
 So, where a release of one of several 
 obligors showed upon its face, and in 
 connection with the surrounding circum- 
 stances, that it was not the intention of 
 the parties to release the co-obligors, 
 and the court was convinced that the 
 whole scheme of procuring a separate re- 
 lease of one of the obligors was a plan of 
 all for escaping the full payment of an 
 honest debt, the instrument was con- 
 strued merely as a covenant not to sue, 
 and the co-obligors were held not to be 
 discharged. Parmelee v. Lawrence, 44 
 111. 405. 
 
 A release under seal, however, of one 
 of several joint wrong-doers releases them 
 all. The sealed instrument implies a 
 sufficient consideration for the release, 
 and a proviso reserving the right of ac- 
 tion against the others is void. Ruble v. 
 Turner, 2 Hen. & Mun. (Va.) 88; Gil- 
 patrick v. Hunter, 24 Me. 18; Gunther v. 
 Lee, 45 Md. 60. 
 
 In Alabama, all releases take effect 
 according to the intentions of the par- 
 ties, and an acceptance of a partial satis- 
 faction from one joint trespasser, with 
 receipt accordingly, is only available to 
 the others as part satisfaction. Smith v. 
 Gayle, 58 Ala. 600. 
 
 1. Crawford v. Roberts, 8 Ore. 324. 
 
 But the mere promise to release one of 
 the makers of a joint and several note 
 because of his paying a part thereof is 
 without lawful consideration, and void. 
 Smith V. Bartholomew, i Mete. (Mass.) 
 256; Small V. Older, 57 Iowa, 326. 
 
 C. & W. gave a joint and several note 
 to H. for $71. H. made a verbal agree- 
 ment with W. that if he would pay him 
 $21.55 he would not call on W. for the 
 payment of the note, but would look to 
 C. for the residue. W. thereupon paid the 
 $21.55, which was indorsed on tiie note. 
 H. afterward brought an action on the 
 
 note against C. & W., and they pleaded 
 the agreement with H. and the acceptance 
 of the $21.55 in bar of the action. It 
 was held that the agreement between H. 
 and W. and the acceptance of the $21.55 
 was no satisfaction of the note, nor bar 
 to plaintiff's action. Harrison v. Close, 
 2 Johns. (N. Y.) 448. 
 
 2. Austin V. Hall, 13 Johns. (N. Y.; 
 286; Decker z/. Livingston, 15 Johns. (N. 
 Y.) 479: Myrick v. Dame, 9 Cush. 
 (Mass.) 248; Kimball v. Wilson, 3 N. H. 
 96. But see Upjohn v. Ewing, 2 Ohio 
 St. 13; Reigart v. EUmaker, 14 S. & R. 
 (Pa.) 121; Eisenhart v. Slaymaker, 14 
 S. & R. (Pa.) 153. 
 
 A and B bought a quantity of railroad 
 iron on joint account and sold the iron to 
 a corporation in their joint name. After 
 the sale A settled with the corporation, 
 taking in payment part cash and part 
 railroad stock and giving a receipted bill 
 for the price of the iron in full with in- 
 terest. B afterward commenced a suit 
 against the railroad company for his pro 
 portion of the amount, joining A as 
 plaintiil. It was held that the settlement 
 made by A with the corporation released 
 the latter from liability. Osborn v. 
 Martha's Vineyard R. Co., 140 Mass. 
 
 549- 
 
 So is accord and satisfaction with one 
 partner of a firm good against the other 
 partners, and a release by one partner 
 will be a release by all. Yandes v. 
 Lefavour, 2 Blackf. (Ind.)37i; Gregg w. 
 James, i III. 107; White v. Jones, 14 La. 
 Ann. 681, Vanderburgh w. Bassett, 4 
 Minn. 242; AU^n v. Farrington, 2 Sneed 
 (Tenn.), 526; Scott v. Trent, i Wash. 
 (Va.) 77; Salmon v. Davis, 4 Binn. (Pa.) 
 375; Noyes v. New Haven, etc., R. Co.. 
 30 Conn. I ; Doremus v. McCormick, 7 
 Gill (Md.), 49. 
 
 Where one partner signs a general re- 
 lease to a debtor of the firm and it does 
 not appear to what demands it is in- 
 tended to apply, or that the subscribing 
 partner has any separate demand against 
 the debtor, the release will be a discharge 
 from debts due to the partnership. 
 Emerson v. Knower, 8 Pick. (Mass.) 63. 
 
 106 
 
ACCORD AND SATISFACTION— ACCORDING. 
 
 material fact in the statement of his affairs is void ; and a sealed 
 release based thereon will be set aside.* 
 
 18. When Set Aside. — An accord and satisfaction will be set aside 
 if it is shown that the parties to the transaction were mutually 
 mistaken in regard to some facts.** 
 
 ACCORDING. — The words " according to" a contract, or law, or 
 statute imply that everything has been done in compliance with 
 the terms of the instrument, law, or statute referred to, it being 
 understood that the construction of the law or statute is governed 
 by the recognized principles of the law at the time the words were 
 used.* 
 
 1. Stafford v. Bacon, i Hill (N. Y.), 
 532; Dolsen v. Arnold, 10 How. Pr. (N. 
 Y.) 531; Pierce v. Drake, 15 Johns. (N. 
 Y.) 475; Willson V. Force, 6 Johns. (N. 
 Y.) no; Central Bank v. Pindar, 46 
 Barb. (N. Y.) 467; Baker v. Spencer, 58 
 Barb. (N. Y.) 248; Brown v. Mont- 
 gomery, 20 N. Y. 287; Delaware Bank 
 V. Jarvis, 20 N. Y. 226; Galoupeau v. 
 Ketchum, 3 E. D. Smith (N. Y.) 175; 
 Bridge v. Batchelder, 9 Allen (Mass.), 
 394; Ilsley V. Jewett, 2 Mete. (Mass.) 
 168; Abercrombie v. Mosely, 9 Port. 
 (Ala.) 145; Maynard v. Johnson, 4 Ala. 
 n6; Mooring v. Mobile Marine Ins. Co., 
 27 Ala. 254.; Long v. Spruill, 7 Jones (N. 
 Car.), 96; Reynolds v. French, 8 Vt. 85; 
 Watson V. Owens, i Rich. (S. Car.) iii; 
 Newall V. Hussey, 18 Me. 249: Cora- 
 stock V. Smith. 23 Me. 202; Pope v. 
 Tunstall, 2 Ark. 209; Cave v. Hall, 5 
 Mo. 59; Slocumb v. Holmes, 2 Miss. 139. 
 
 A composition and discharge will be 
 set aside where it was induced by repre- 
 sentations of insolvency and poverty, 
 while the debtor previously had made a 
 fraudulent conveyance of his property. 
 Richards v. Hunt, 6 Vt. 251; s. c, 27 
 Am. Dec. 545. 
 
 Where no consideration has passed, 
 equity will not enforce the execution of a 
 release given by a layman in plain igiio- 
 rance of the law. when dealing with a 
 lawyer and led by him to do the very op- 
 posite of what he at the time expressed 
 his intention to do, and this although no 
 false statement was made. Mellon v. 
 Webster. 5 Mo. App. (Mo.) 449. 
 
 A person injured by alleged negligence 
 of the servants of a railroad company 
 executed a paper purporting to be a writ- 
 ten release discharging his right of action 
 against the company for his injuries. The 
 release was signed by him while he was 
 under the influence of opiates admin- 
 istered to alleviate his pains caused by 
 said injuries, he being unable to under- 
 stand what he was doing. The release 
 was set aside as void. Chicago, etc. , R. 
 Co. V. Doyle, 18 Kan. 58. 
 
 Where a, judgment debtor furnished 
 his own money to a third party with in- 
 structions to buy from his creditor the 
 judgment against him for a smaller 
 amount in full satisfaction of the whole, 
 and this third party did so satisfy the 
 judgment without disclosing the real 
 facts, it was held that such satisfaction 
 was void and the payment only partial. 
 Shaw V. Clark, 6 Vt. 507; s. c, 27 Am. 
 Dec. 578. 
 
 A release by an ignorant woman who 
 was injured by the negligence of a com- 
 pany, and which release was "signed by 
 her during the illness caused by said in- 
 juries, and upon the inducements of the 
 company's physician who attended her, 
 and in the absence of her friends, was 
 held to be void. Eagle Packet Co. v. 
 Defries. 94 111. 598. 
 
 A release to be available as a bar to an 
 action at ^aw must have been obtamed 
 while the signer was absolutely free from 
 duress, as in the case of a seaman who 
 gave a release to the master of a vessel of 
 all claims for damages for assault and bat- 
 tery. Such release must appear to be a 
 reasonable satisfaction. Mitchell v. 
 Pratt, Taney (U. S.). 448; Rourke v. 
 Story. 4 E. D. Smith (N. Y.) 54. 
 
 a. Calkin v. Griswold, 11 Hun (N. Y.), 
 210; Burr m. Veeder, 3 Wend. (N. Y.) 
 412; Mowatt V. Wright, i Wend. (N. Y.) 
 355. 360; Wheadon v. Olds, 20 Wend. 
 (N. Y.) 174. 
 
 But where the accord was made upon 
 the advice of a third party, who was 
 mistaken as to some facts, the conse- 
 querlt satisfaction formed a bar to fur- 
 ther action if the principals in the trans- 
 action were not mistaken about the facts. 
 Thompson v, Bennett's Adm'r, 34 Mo. 
 
 477- 
 
 A condition of an accord agreement, 
 like that of any other contract, may be 
 waived by both parties. Cary v. Mc- 
 Intyre. 7 Colo. 173. 
 
 3. The words " according to the form 
 of the statute" at the head of the procla- 
 mations, indorsed on a fine, import that 
 
 107 
 
Definition. 
 
 ACCOUNT. 
 
 Definition. 
 
 account — account stated. see account render; 
 Agency ; Attorney and Client ; • Auditor ; Books as 
 Evidence; Executor and Administrator; Guardian 
 and Ward; Interest; Limitations; Partnership; 
 Trusts. 
 
 10. Third Parties. 
 
 11. Set-off. 
 
 12. Illegal. 
 
 13. New Promise, 
 
 14. Balance. 
 
 15. Interest. 
 
 16. Parties not Merchants. 
 
 1 7. Opening the Account. 
 
 18. Surcharging, Falsifying. 
 
 1. Definition. — An account is a list or statement of monetary 
 ■transactions, such as payments, purchases, sales, debts, credits, 
 .etc., in most cases showing a balance or result of comparison be- 
 tween items of an opposite nature, e.g., receipts and payments.^ 
 
 A detailed statement of the mutual demands in the nature of 
 'debt and credit between parties, arising out of contracts or some 
 fiduciary relation.** 
 
 1. Definition. 
 
 2. Open Account. 
 
 3. Settled Account. 
 
 4. Account Stated. 
 
 5. Official Accounts. 
 
 6. How Stated. 
 
 7. Acquiescence, Admissions. 
 
 8. Reasonable Time. 
 
 9. To Whom Stated. 
 
 the fine was proclaimed as required by the 
 statute. Doe v. Harrison, 3 B. &Ad. 765. 
 
 Where coaches and cabriolets are al- 
 lowed by statute to stand in certain 
 places, according to the statutes made for 
 that purpose, and a subsequent statute 
 gives the vestrymen of a church a right 
 to make certain regulations as to where a 
 certain stand should be, a coach or cab- 
 riolet, after a prohibition from the vestry- 
 men, from such stand cannot be said to 
 .stand there, according to the statutes, and 
 may be impounded. Frost v. Williams, 
 7 Ad. & Ell. 773. 
 
 The insertion of a clause in a bond en- 
 larging it so as to include a subsequent 
 advance, the accompanying mortgage re- 
 maining unchanged, does not affect the 
 operation of the mortgage, nor enlarge 
 the meaning of the words " according to 
 the conditions of said bond " in said 
 mortgage so as to include the advance. 
 Stoddard v. Hart, 23 N. Y. 556. 
 
 From the averment that defendant 
 "subscribed for twenty shares of the 
 capital stock," etc., "according to the 
 statute incorporating the company," etc., 
 it would be intended that he had done 
 everything required by the charter in 
 order to become a subscriber, and espe- 
 cially so on general demurrer. Fiser v. 
 Railroad Co., 32 Miss. 360. 
 
 A devise to the next male heir nearest 
 in kindred and relation to testator "ac- 
 cording to law" was construed to mean 
 that the estate should go in the same 
 .manner the law would have given it to 
 
 the heir of the testator. Mclntyre v. 
 Ramsey, 23 Penn. 317. 
 
 An averment that an affidavit was made 
 according to law will be held to mean 
 within the time required by law. McEl- 
 haney v. Gilleland, 30 Ala. 183. 
 
 Where a statute provides that appeals 
 from justices must be tried, according to 
 equity and justice without regard to any 
 defect in the summons, or other process 
 before the justice, a defect in a notice 
 cannot be considered on appeal. Abrams 
 V. Johnson, 65 Ala. 465. 
 ' 1, Sweet's Law Diet. 
 
 2. Bouvier's Law Diet. 
 
 The term implies that one is responsi- 
 ble to another for moneys or other 
 things, either on the score of contract or 
 of some fiduciary relation of a public or 
 private nature, created by law or other- . 
 wise. Whitwell v. Willard, I Mete. 
 (Mass.) 216. It cannot include a claim to 
 have taxes on land refunded on the 
 ground that they were excessive through 
 the wrongful and illegal conduct of the 
 assessor. Stringham v. Winnebago Co., 
 24 Wis. 594. 
 
 A statement of a balance of account 
 without disclosing debits and credits is not 
 an account. A balance is but the con- 
 clusion or result of the debit and credit 
 sides of an account. An account is a 
 detailed statement of mutual demands in 
 the matter of debt and credit between 
 parties, arising out of contract or some 
 fiduciary relation. McWilliams v. Allan, 
 45 Mo. 573. 
 
 108 
 
■"Open Accounts. 
 
 ACCOUNT. 
 
 Settled Accounts. 
 
 2. Open Accounts. — An open account is one in which some item 
 of the contract is not settled by the parties, whether the account 
 -consists of one item or many ; or where there have been running 
 or current dealings between the parties, and the account is kept 
 •open with the expectation of further dealings.^ 
 
 3. Settled Accounts. — A voluntary settlement of accounts be- 
 tween parties affords presumption that all items properly charge- 
 able at the time were included. This presumption is not conclu- 
 sive, but clear and convincing proof that such items were uninten- 
 tionally omitted is necessary to sustain a subsequent claim to 
 recover them.* 
 
 Account as used in a bequest of " all 
 my accounts" does not include a savings- 
 •bank account. Galei/. Drake, 51 N. H. 78. 
 
 The fact that a person has a copy of 
 an account against another person is no 
 evidence that he is the owner, nor is it 
 any evidence of authority to collect it. 
 Butcher v. Beckwith, 45 111. 460. 
 
 1. Sheppard v. Wilkins, i Ala. 62; 
 •Goodwin v. Harrison, 6 Ala. 438. Every 
 
 new item in a running open account 
 ■draws with it all preceding items. Ring 
 Tj. Jamison, 2 Mo. App. 584. 
 
 Where all the items in an account 
 relate to one transaction, it constitutes a 
 continuous account, regardless of inter- 
 vening statements of balance. Lamb v. 
 Hanneman, 40 Iowa, 41. 
 
 A creditor is not bound to furnish an 
 itemized account before bringing suit for 
 amount due. Foster v. Newbrough, 66 
 Barb. (N. Y.) 645. 
 
 Where the facts show various transac- 
 tions running through a series of years, 
 •entirely separate and independent, and 
 payment made on items wholly discon- 
 nected with prior transactions, it is not 
 -an instance of a running account. 
 Compton V. Johnson, I West. Repr. 
 (Mo.) 395. I 
 
 2. Bull w. Harris, 31 111. 487; Lee v. 
 Reed, 4 Dana (Ky.), log: Kennedy v. 
 Williamson, 5 Jones L. (N. Car.) 284; 
 
 -Stebbins w. Niles, 25 Miss. 267; Leighton 
 ' T*. Grant. 20 Minn. 345; Rowell v. 
 Marcy, 47 Vt. 627; Lockwood w. Thorne, 
 18 N. Y. 285; McNeil v. Baker, 6 W. 
 Va. 153. 
 
 A settled account will, generally, be 
 deemed conclusive between the parties, 
 unless some fraud, mistake, omission, 
 or inaccuracy is alleged and shown. 
 Ruffner v. Hewitt, 7 W. Va. 585. See 
 Bull V. Harris, 31 111. 487; Lee j/. Reed, 
 4 Dana(Ky.), 109; Farmer v. Barnes. 3 
 Jones Eq. (N. Car.) 109; Kennedy v. Wil- 
 liamson, 5 Jones L. (N. Car.) 284; Bourke 
 V. James, 4 Mich. 336; Mills v. Geron, 
 .22 Ala. 669. 
 
 In an assumpsit for work and labor 
 the plaintiff cannot avoid a settlement of 
 the account between himself and the 
 defendant for mistakes or errors in 
 items thereof. Such avoidance can only 
 be had in an action to set aside the set- 
 tlement. Roach V. Gilmer, 3 Utah, 389. 
 
 An account settled cannot be opened 
 if it appears that the plaintiff was aware 
 when he made the settlement of the facts 
 on which he bases his claim to relief. 
 Quinlan v. Keiser, 66 Mo. 603. 
 
 Where on the settlement of an account 
 the debtor agrees to give his note for the 
 balance, but fails to do so, the account 
 becomes due immediately. Kronen- 
 berger v. Binz, 56 Mo. 121. 
 
 The execution of a note raises a pre- 
 sumption that all matters between the 
 parties up to that date have been settled. 
 Allen ». Bryson, 25 N. W. Repr. (Iowa) 
 820; Grimmell v. Warner, 21 Iowa, 12. 
 
 A payment made and accepted as an 
 adjustment of an unsettled or unliqui- 
 dated demand will operate as a satisfac- 
 tion, although shown to be much less 
 than the creditor was entitled to receive 
 and would have received had he brought 
 an action. The fact that the creditor 
 dissented at the time of the settlement 
 can make no difference, if he finally ac- 
 cepted the debtor's offer and agreed to 
 the settlement. Roach v. Gilmer, 3 
 Utah, 389. 
 
 A settlement between the parties is 
 piima facie to be taken as a settlement of 
 all demands, but is not conclusive, and 
 is no bar to a recovery for matter not 
 included in the settlement, though exist- 
 ing at the time, and evidence is admis- 
 sible to show that certain matters were 
 not so included. Normandini/. Gratton, 
 12 Oregi 505; s. c, 8 Pac. Repr. 653. 
 
 The mere settlement of an account does 
 not in itself constitute an agreement, ot 
 amount to a contract, though there may 
 be evidence of a contract. Peterson 7/. 
 U. S., 2 Wash. (U. S.) 40. See i Myers 
 Fed. Dec. 21. 
 
 I C. of L.— 8 
 
 109 
 
Definition. 
 
 ACCOUNT STATED. 
 
 Principles.. 
 
 4. Account Stated.— When two persons, having had monetary- 
 transactions together, close the account by agreeing to the balance 
 appearing to be due from one of them, this is' called an account 
 stated. It is of importance from the fact that it operates as an 
 admission of liability by the person against whom the balance ap~ 
 pears ; or, in the language of the common law, " the law implies 
 that he against whom the balance appears has engaged to pay it. 
 to the other;" and on this implied promise or admission an actioa 
 may be brought.^ 
 
 A settled account may be corrected 
 when proved to have been made under 
 a mutual mistake as to important facts. 
 Newell V. Smith, 3 Atl. Repr. (Conn.) 
 674. 
 
 1. Sweet's Law Diet. ; Black. Com. iii, 
 164; Chitty on Contracts, 599 et seq.; 
 Reinhardt v. Hines. 51 Miss. 344; 
 McCall V. Nave, 52 Miss. 494; Stebbins 
 ■V. Niles, 25 Miss. 267; Hawkins r. Long, 
 74 N. Car. 781; Stanton v. Jerome, 54 
 N. Y. 480; May v. Kloss, 44 Mo. 300; 
 Zacarino v. Pallotti, 49 Conn. 360. 
 
 An account closed is not an account 
 stated. Bass ». Bass, 8 Pick. (Mass.) 
 187; Volkening v. De Graaf, 81 N. Y. 
 268; Mandeville v. Wilson, 5 Cranch. 
 (U. S.) 15. See Account Settled, 
 ante. 
 
 An account stated must be made with 
 knowledge, or opportunity of knowledge, 
 on the part of the debtor of all the circum- 
 ."stances. Kinney v. Heatley, 7 Pac. 
 Repr. (Oregon) 359. 
 
 An account stated is an agreement be- 
 tween persons who have had previous 
 transactions, fixing the amount due in 
 respect to such transactions, as distin- 
 guished from a mere admission or ac- 
 knowledgment. It is a new cause of ac- 
 tion. It is not a contract upon a new 
 consideration, and does not create an 
 estoppel, but establishes /n»«a ya«V the 
 accuracy of the items charged without 
 further proof. McKinster v. Hitchcock, 
 26 N. W. Repr. (Neb.) 705. 
 
 The mere rendering of an account 
 does not make it an account stated, and 
 an omission to object to it raises only a 
 presumption of assent, which may be 
 rebutted by circumstances tending to a 
 contrary inference. Guernsey v. Rex- 
 ford, 63 N. Y. 631. 
 
 An account stated may consist of but 
 a single bill of goods. 2 Chitty on Contr. 
 (nth ed.) 962; Cobb v. Arundell, 26 
 Wis. 553; Highmore v. Primrose, 5 M. 
 & S. 65; Lane v. Hill, 18 Q. B. 252. 
 Compare Texas, etc., R. Co. v. Smith, 
 29 Alb. L. J. 85. 
 
 Where the account is stated with refer- 
 
 ence to only one item, that item must 
 consist of a debt then due and owing. 
 Lemere v. Elliott. 6 H. & N. 656; 
 Gough V. Findon, 7 Exch. 48; Lubbock 
 V. Tribe, *3 M. & W. 607; Tucker i;. Bar- 
 row, 7 B. & C. 623; Green v. Davies, 4 
 B. & C. 235; Whitehead u. Howard, 5. 
 Moore, 105. 
 
 The charges may all be on one side^ 
 2 Chitty on Cont. (nth Am. Ed.) 962;. 
 Rutledge v. Moore, g Mo. 537; Kock v. 
 Bonitz, 4 Daly (N. Y.), 117. 
 
 Where the evidence of plaintiffs showed! 
 that defendants had rendered statements 
 of purchases and sales of stocks as they 
 were severally made, and monthly 
 statements of account, and that when the 
 account was finally closed there was a 
 balance shown to be due to plaintiffs by 
 defendants' books, for which, balance 
 plaintiffs received a check as payment, 
 such acceptance of the check was an ad- 
 justment of the account: and the evi- 
 dence did not tend to show a cause of 
 action, and the jury were properly 
 directed to find for the defendants. 
 Pynchon v. Day, 5 West'n Repr. (111.) 
 698. 
 
 Principles, — An account stated is a 
 demand on one side which is admitted 
 on the other for a definite amount due;. 
 and the admission must be voluntary, 
 but need not be in express terms, 
 Powell V. Pacific R. Co., 65 Mo. 658. 
 
 The acknowledgment must be unquali- 
 fied. Calvert v. Baker, 4 M. & W. 417; 
 Evans v. Verity, R. & M. 239. 
 
 To maintain an action upon an account 
 stated, an account balanced and rendered, 
 with an assent to the balance, expres's or 
 implied, must be proved. Volkening v. 
 De Graaf, 81 N. Y. 268. See Cape 
 Girardeau, etc., R. Co. v. Kimmel, 58 
 Mo. 83. 
 
 Admission of balance due on account 
 renders a party liable in account stated. 
 Tassey v. Church, 4 Watts & S. (Pa.) 
 141; s. c, 39 Am. Dec. 65. 
 
 If the agreement as to amount due is 
 the result of an error in regard to the 
 items, or in the computation of interest. 
 
 110 
 
Frinoiples. 
 
 ACCOUNT STATED. 
 
 Persons not Concluded. 
 
 The simple rendering of an account between the parties and 
 agreeing upon the amount due are sufficient facts on which to 
 
 it is not conclusive. Town v. Wood, 37 
 111. 512. 
 
 It is not necessary to prove an express 
 promise to pay. Claire v. Claire, 10 
 Neb. 54. See Cochrane v. Allen, 58 N. 
 H. 250; ,Atwater 7/. Fowler, i Edw. Ch. 
 (N. Y.) 417; Terry v. Sickles, 13 Cal. 
 427; Stebbins v. Niles, 25 Miss. 267. 
 Compare Killam v. Preston, 4 W. & S. 
 (Pa.) 15. 
 
 An account cannot be stated with ref- 
 erence to a debt payable on a contin- 
 gency. Baker v. Heard, 5 Exch. 959. 
 
 To prove an account stated, it is not 
 always necessary to show actual exami- 
 nation and assent. Receipt by the party, 
 and the elapsing of a reasonable time 
 without any objection to the account, are 
 an implied admission that the account is 
 correct, and truly though not conclusively 
 stated. Benites v. Hampton, 3 Utah, 
 369; s. u., 3 Pac. Repr. 206. 
 
 Where there are cross-demands, it is 
 not necessary that the items should con- 
 sist of debts due in prasenti, or that they 
 should be kgal debts; but equitable 
 claims may also be brought into the ac- 
 count. Laycock v. Pickles, 4 B. & S. 
 
 497- 
 
 But where the account is stated with 
 reference to only one item, that item 
 must consist of a debt then due and 
 owing. Lemere v. Elliott, 6 H & N. 
 656; Gough V. Findon, 7 Exch. 48; Tuck- 
 er V. Barrow, 7 B. & C. 623; Whitehead 
 V, Howard, 5 Moore, 105. 
 
 An agreement to pay future compound 
 interest cannot be enforced as an account 
 stated. Young v. Hill, 67 N. Y. 162; 
 s. c. 23 m. Rep. 99. 
 
 An account stated cannot be based on 
 an appraisal where it does not appear that 
 both parties mutually agreed on the ap- 
 paisers, or recognized them as authorized 
 to bind them by their action. Chicago, 
 etc., R. Co. V. Peters. 45 Mich. 636. See 
 Bates V. Townley, 2 Exch. 152. 
 
 The omission of a debtor to dispute 
 the accuracy of an account within a 
 reasonable time after it is presented to 
 him has no further effect than to enable 
 the creditor to recover the amount of it 
 without proof of the correctness of any of 
 its items. It is not an estoppel, but the 
 account is still open to impeachment for 
 errors and mistakes, and the debtor may 
 still insist upon the statute of limitations 
 as a defence. Bucklin v. Chapin, i Lans. 
 (N. Y.) 443- 
 
 An account examined and signed by 
 
 the parties will be deemed a stated ac- 
 count, notwithstanding it contains the 
 phrase "errors excepted." Branger v. 
 Chevalier, g Cal. 353. 
 
 Where' the uncontroverted testimony 
 before a referee disclosed that there was 
 an account stated between the parties on 
 a certain date, and it also appears by the 
 referee's own report that he could not 
 have arrived at the conclusion held in said 
 report without holding that the parties 
 were not bound by said stated account, 
 held, that this was error, and that the re- 
 port of the referee should not have been 
 confirmed. Killops v, Stevens, 2g N. W. 
 Repr. (Wis.) 390. 
 
 Persons not Concluded. — An insane per- 
 son, nor an infant, is not conciuued by 
 an account stated, i Chitty's Cont. (nth 
 Am. Ed.) 187, and cases cited. Nor an ig- 
 norant person who cannot read. Gueni- 
 vet V. Perret. 18 La. Ann. 356. Compare 
 Stewart v. Connor, 13 Ala. 94. 
 
 A kept cash with a banker, and the 
 balances to his credit were stated from 
 time to time in a pass-book. He became 
 a lunatic, but the account continued to be 
 kept by his family; and in the pass-book, 
 the entries in which were in the banker's 
 handwriting, a balance was stated to the 
 credit Of A. Held, that this was not evi- 
 dence to support a count on an account 
 stated with A, in an action by his repre- 
 sentative against the banker to recover 
 the amount of such balance. Tarbuck v. 
 Bispham, 2 M. & W. 2. 
 
 Although the party who receives the 
 account stated may be estopped to deny 
 its correctness by omission to object, 
 the principle does not apply to the party 
 who furnishes the account; as to him, it 
 contains certain admissions and is gen- 
 erally regarded as correct, but it is never- 
 theless open to explanation for any 
 omissions or mistakes. Schettler v. 
 Smith, 2 J. & Sp, (N. Y.) 17. See Nau- 
 man v. Zoerhiaut, 21 Wis. 472. 
 
 The presentation by a party to his 
 debtor of an account in which he charges 
 a gross sum for services does not pre- 
 clude the creditor from showing what 
 the services were reasonably worth, and 
 recovering a larger sum than that at 
 which they were so charged by him. 
 Williams v. Glenny, i5 N. Y. 389; Stry- 
 ker V. Cassidy, 76 N. Y. 50; Harrison v. 
 Aycrs, i8 Hun (N. Y.), 336. 
 
 When a party to whom a bill for ser- 
 vices is presented for payment, upon 
 paying u part of the amount, objects to 
 
 111 
 
0£S.cial Acconnt. 
 
 ACCOUNT STATED. 
 
 Official Accoant, 
 
 maintain an action;^ but if one of the parties does not agree to 
 the balance, an action upon an account stated cannot be main- 
 tained.* 
 
 An admission by a party of a specific amount as due, which 
 amount is the balance of an account, will empower the court to 
 give judgment for such sum as an account stated.* 
 
 Although an account stated may be founded upon a mere equi- 
 table liability, it must be a direct liability from the defendant- to 
 the plaintiff.* 
 
 If the plaintiff declare upon an account stated with him in a rep- 
 resentative character, — for instance, as executor, — it must appear 
 that the defendant admitted that the debt was due to the plain- 
 tiff in that character.^ 
 
 5' OfBcial Account. — An account stated by an accounting officer 
 is not conclusive nor prima-facie evidence of the indebtedness of 
 the government, nor can an action be brought upon it.*" 
 
 the bill, it does not become an account 
 stated, so as to conclude the party pre- 
 senting it, or prevent hi« recovering 
 what his services were worth. Brown- 
 son V. Hoffman, 7 Hun (N. Y.), 674. 
 
 But where, previous to signing, a party 
 objects to the items in the statement of 
 an account as incorrect, but afterwards 
 ■signs it as correct, he waives his objec- 
 tions to the account. Roach v. Gilmer, 
 3 Utah, 389; McDaniels v. Lapham, 21 
 Vt, 222 ; McDaniels v. Bank, 29 Vt. 
 230. 
 
 When a sum of money is secured by a 
 deed and a balance is struck for the pur- 
 pose of ascertaining how much remains 
 due thereon, and the obligor admits the 
 correctness of the account and promises 
 to pay it, an action will not lie as on a 
 stated account, but must be brought 
 upon the security. Young v. Hill, 67 
 N. Y. 162; s. c. . 23 Am. Rep. 99. See 
 Middleditch v. Ellis, 2 Exch. 623. 
 
 1. Hutchinson v. Market Bank. 48 
 Barb. (N. Y.). 302; Cobb v. Arundell, 26 
 Wis. 553^ Claire v, Claire, 10 Neb. 54; 
 Knowles v. Michel, 13 East, 249. 
 
 2. Cape Girardeau, etc., R, Co. v. 
 Kimmel. 58 Mo. 83; Volkening u. De 
 Graaf, 81 N. Y. 268; Porter v. Cooper, 
 I C. M. & R. 387. 
 
 Where, in an action, plaintiff failed to 
 show any assent, express or implied, on 
 the part of defendants, that they were in- 
 debted to plaintiff in the balance claimed 
 and no amendment of the pleadings was 
 asked, held, that a dismissal of the com- 
 plaint was proper, although there might 
 have been some evidence of indebted- 
 ness. Volkening v. De Graaf, 8i N. Y. 
 26S. 
 
 3. May v. Klass, 44 Mo. 300. 
 
 4. Chitty's Cont. (nth Am. Ed,) 962. 
 Baker v. Heard, 5 Exch. 959; Fetch v. 
 
 Lyon, 9 Q. B. 147. 
 
 The defendant promised the plaintiff, 
 orally, that if certain goods were supplied 
 to A, a third party, he would see the 
 plaintiff paid for them. The plaintiff 
 accordingly supplied the goods, and A 
 left the country without having paid' for 
 them. The defendant subsequently 
 orally acknowledged his liability to the 
 plaintiff for the price of the goods. Held, 
 that the plaintiff was not entitled to re- 
 cover, upon the account stated, founded 
 upon the acknowledgment; for, although 
 the admission of a liability to pay a 
 liquidated sum \% prima-facie evidence of 
 an account stated, evidence had been 
 properly given to show the nature of the 
 consideration upon which it was found- 
 ed; and, it appearing that the sura 
 acknowledged was not the subject of a 
 direct liability from the defendant to the 
 plaintiff, a verdict for the defendant had 
 been rightly entered. Wilson v. Mar- 
 shall, 2 Ir. R. C. L. 356; 14 W. R. 699— 
 Exch. Cham. 
 
 The circumstance that the Statute of 
 Frauds bars a party from recovering 
 upon a mere parol contract does not pre- 
 vent the liability created thereby from 
 forming a good ground for an action 
 founded upon a subsequent statement of 
 accounts between the parties. lb. 
 
 5. Chitty's Cont. (nth Am. ed.) 964. 
 
 6. McKnight v. U. S., 13 Ct. of CI. 
 292. U. S. Treasury settlements are 
 on\y prima-facie evidence of the correct- 
 ness of the balance certified; it is com- 
 petent for accounting officers to correct 
 mistakes and to restate the balance. 
 Soule V. U. S., 100 U. S. 8; a. c, B'k 25, 
 
 ua 
 
Row Stated. 
 
 ACCOUNT STATED. 
 
 How Stated. 
 
 6 How Stated. — To make an account stated there must be a 
 mutual agreement between the parties as to the allowance or dis- 
 allowance of their respective claims; and to establish such an 
 account so as to preclude a party from impeaching it, save for 
 fraud or mistake, there must be proof of assent to the account as 
 rendered, either express or implied from failure to object within 
 a reasonable time after presentation. ^ 
 
 L. C. P. Co. 536; U. S. V. Eckford, i 
 How. (U. S.) 250. 
 
 In suits brought by the government 
 against individuals, no claim for a credit 
 shall be admitted upon trial unless it has 
 been presented to the accounting officers 
 of the Treasury and by them disallowed. 
 Railroad Co. v. U. S., loi U. S. 453; 
 s. c, B'k 25, L. C. P. Co. 1068; Halli- 
 burton z/.U. S., 13 Wall. (U. S.)63;s. c, 
 B'k 20, L. C. P. Co-. 533; U. S. V. Giles, 
 g Cranch (U. S.); 212. 
 
 In Hunt V. Edger, 93 Ind. 311, the 
 court said: "The inference, therefore, 
 appears to us to be obvious that the an- 
 nual settlement of a county treasurer 
 with the county commissioners, as to its 
 conclusiveness, ought to rest, and does 
 in fact rest, upon substantially the same 
 basis as that occupied by formal settle- 
 ments made by private parties having 
 mutual dealings, and presumably repre- 
 senting adverse interests." 
 
 In Washington Co. v. Parlier, 5 Gilm. 
 (III.) 232, an action against a collector of 
 revenue for failing to pay over an alleged 
 amount of public money still remaining 
 in his hands, the court said : " In mak- 
 ing this settlement, the commissioners 
 act as the agents of the county, and do 
 not adjudicate as a court. They could 
 enter up no judgment against the defend- 
 ant for the balance found due, nor have 
 they any means of enforcing payment of 
 such balance, except by a resort to the 
 ordinary courts of law. As the fiscal 
 agents of the county, their mistakes 
 may be inquired into and corrected as 
 well as those of an individual acting in 
 his own behalf. The record of this set- 
 tlement is but a memorandum of the 
 transaction, and is only prima- fade evi- 
 dence of the correctness of the result 
 stated." 
 
 The rule of the construction thus an- 
 nounced by the "Supreme Court of Illi- 
 nois is supported by apparently well-con- 
 sidered cases in other States. Supervis- 
 ors V. Birdsall, 4 Wend. (N. Y.) 453; Peo- 
 ple ex rel. v. Supervisors, 65 N. Y. 
 222; Supervisors v. Jones, 19 Wis. 61: 
 County of Marion z/. Phillips, 45 Mo. 75; 
 State f. Roberts. 62 Mo. 388; Howe v. 
 State, 53 Miss. 57. 
 
 1. Lockwood V. Thorn, 11 N. Y. 170, 
 18 N. Y. 290; Stenton v. Jerome, 54 N. 
 Y. 480; Volkening v. De Graaf, 81 N. Y.. 
 268; Avery v. Leach, 9 Hun (N. Y.), 
 106; Kock». Bonitz. 4 Daly (N. Y.), 117;, 
 Bruen v. Hone, 2 Barb. (N. Y) 586; 
 Hutchinson v. Market Bank, 48 Barb. 
 (N. Y.) 302; Homes v. DeCamp, i 
 Johns. (N. Y.) 34; Union Bank v. 
 Knapp, 3 Pick. (Mass.) 96; a. c, 15 Am. 
 Dec. 181; Tharp v. Tharp, 15 Vt. 105; 
 Brown v. Van Dyke, 8 N. J. Eq. 795-. 
 s. c. , 55 Am. Dec. 250; Robertson v. 
 Wright, 17 Pratt (Va.), 534; Rufner v. 
 Hewitt, 7 W. Va. 585; Reinhart v. 
 Hines, 51 Miss. 344; Anding v. Levy, 
 
 57 Miss. 51; s. c, 34 Am. Rep. 435; 
 McCall V. Nave, 52 Miss. 494; Stebbins 
 V. Niles, 25 Miss, 267; Coopwood v. 
 Bolton, 26 Miss. 212; Langdon u. 
 Roane, 6 Ala. 518; Darby v. Lastropes; 
 28 La. Ann. 605; Mansell v. Payne, 18 
 La. Ann. 124; Terry v. Sickles, 13 Cal. 
 427; PuUiam v. Booth, 21 Ark. 420; 
 Cape Girardeau, etc., R. Co. v. Kimmel, 
 
 58 Mo. 83; May u. Kloss, 44 Mo. 300; 
 White V. Hampton, 10 Iowa, 238; Bous- 
 log V. Garrett, 39 Ind. 338; Cobb v. 
 Arundell, 26 Wis. 553; Albrecht v. Gies, 
 33 Mich. 389; White v. Campbell, 25^ 
 Mich. 463; Smith v. Kennedy, i Wash. 
 Ter. 55;, Wiggans v. Burkham, 10 Wall. 
 (U. S.) 129; Lane v. Hill. 18 Q. B. 252; 
 Calvert v. Baker, 4 M. & W. 417; Le- 
 mere v. Elliott, 6 H. & N. 656. 
 
 The rule applies to accounts betiyeen 
 merchants residing in different countries. 
 Freeland v. Heron, 7 Cranch (U. S.), 
 147; I Myer's Fed. Dec. 21, § 17; Steb- 
 bins V. Niles. 25 Miss. 267; Murray v. 
 Toland, 3 Johns. Ch. (N. Y.jseg; Bain- 
 bridge V. Wilcocks, I Baldw. (U. S.) 539; 
 I Myer's Fed. Dec. 21. § 17. 
 
 What Transactions amotint to Statement 
 of Account between Parties generally. — 
 Where A was shown an account, and he 
 objected to one of the items, but made 
 no remark with respect to the rest, 
 held, evidence of an account stated by 
 him of the items of the account to which 
 no objection was made. Chisman v. 
 Count, 2 M. & G. 317; 2 Scott N. R. 
 569. 
 
 But receiving an account rendered, 
 
 113 
 
How Stated. 
 
 ACCOUNT STATED. 
 
 How Stated. 
 
 The defendant must be shown not only to have admitted a 
 debt, but also, expressly or by inference, he must have acknowl- 
 edged that some certain amount, of money was due from him. 
 The acknowledgment must be unqualified, and not contingent or 
 in the alternative.^ 
 
 and making no objection, or admitting 
 its correctness, does not preclude the 
 debtor, when sued upon it, from contro- 
 verting particular charges; it is a circum- 
 stance for the cqnsideration of the jury. 
 Bertrand v. Taylor, 32 Ark. 470. 
 
 If a merchant neglects, after a reason- 
 able time, to object to an account ren- 
 dered by his factor, showing sales at a 
 price below that at which the factor was 
 authorized to sell, he is deemed to acqui- 
 esce in it, and it is treated as a stated 
 account. Richmond Mfg. Co. v. Starks, 
 4 Mason (U. S), 297. 
 
 The adjustment of a loss by fire will 
 sustain an action as upon an account 
 stated. Smith v. Glens Falls Ins. Co., 
 66 Barb. (N. Y.) 556. 
 
 An admission by a defendant that so 
 much was agreed to be paid to the plain- 
 tiff for the sale of standing trees, made 
 after the trees had been felled and taken 
 away by the defendant, will support a 
 count for an account stated, though not 
 for goods sold and delivered. Knowles 
 ■u. Michel, 13 East, 249; o. p., Pinchon 
 V. Chilcott, 3 C. & P. 236. 
 
 Where the parties, in settlement of a 
 disputed claim, agree upon tjie amount 
 due, and the one against whom the claim 
 was made executes a written agreement 
 to pay the sum so fixed, in an action 
 upon the agreement he is precluded from 
 setting up as.a defence that nothing was 
 in fact due. Dunham v. Griswold, 100 
 N. Y. '224. 
 
 Where a merchant furnishes goods to 
 workmen on orders from their employer 
 and receives his pay from the employer 
 on presentation of the orders, the 
 amount being fixed by the orders and de- 
 ducted from the wages of the workmen, 
 the arrangement is evidence of an ac- 
 count stated. Bull v. Brockway, 48 
 Mich. 523. 
 
 1. Where a commercial agent pur- 
 chased for and shipped to his principal 
 two boat-loads of potatoes, furnishing in- 
 voices, statements of account, bills of 
 purchase, quantities, commissions and 
 expenses, crediting the principal with 
 advances, and claiming a certain bal- 
 ance, and the principal examined such 
 account, making no objection thereto 
 except as to the quantity of potatoes fur- 
 nished, whereupon the agent deducted 
 the items objected to, leaving them to 
 
 be settled after the potatoes should be 
 received, and the principal paid the bal- 
 ance of the account, helH, that there 
 was an account stated which could not 
 properly be opened without legal evi- 
 dence of fraud, misconduct, or mistake. 
 Gilchrist v. Brooklyn Grocers' Mfg. 
 Ass'n, 66 Barb. (N.Y.) 390. 
 
 If interest be credited to one of two 
 partners upon the books of the firm kept 
 by its clerk, on moneys advanced be- 
 yond the capital agreed to be furnished 
 by him, and the other partner, on exam- 
 ining the account with .such clerk, makes 
 no objection to it, that is sufficient 
 to establish an account stated between 
 them, and such interest should be allowed 
 upon an accounting. Lloyd v. Carrier, 
 2 Lans. (N. Y.) 364. 
 
 Where one partner renders to the 
 other a statement purporting to set forth 
 all debits and credits, the account so ren- 
 dered, if not objected to in a reasonable 
 time, becomes an account stated. Law- 
 rence w. Ellsworth, 41 Ark. 502. 
 
 Where a loss by fire is adjusted and 
 the insurer promises to pay the amount, 
 it becomes an account stated. Smith v. 
 Glens Falls Ins. Co., 66 Barb. (N. Y.) 556; 
 62 N. Y. 85. 
 
 In an action by the executors of the 
 payee of a note against the makers, the 
 executors proved the note, with the fol- 
 lowing indorsement upon it, signed by 
 the makers and one of the executors: 
 " Hull, 1838. — Memorandum, that the 
 sum of \l. 7j. bd., one quarter's' interest, 
 was paid on the within note. William Pur- 
 don, Thomas Purdon," — held sufficient 
 evidence of an account stated with the 
 executors, without any proof of the time 
 of the testator's death. Purdon v. Pur- 
 don, 10 M. & W. 562; 12 L'. J. Exch. 
 3- 
 
 An agreement respecting the transfer 
 of an interest in land, required by the 
 Statute of Frauds to be in writing and 
 signed, cannot be enforced by an action 
 upon the agreement against the trans- 
 feree for the stipulated consideration, 
 notwithstanding that the transfer has 
 been effected, and nothing remains to be 
 done but to pay the consideration; but if, 
 after the transfer, the transferee admits 
 to the transferrer that he owes him the 
 stipulated price, the amount may be re- 
 covered as money due upon an account 
 
 114 
 
"What is not. 
 
 A ceo UNT ST A TED. 
 
 Acquiescence. 
 
 7. Acquiescence — Admissions. — The acquiescence of the parties 
 must depend upon the special circumstances of each case in general. 
 When a party indebted upon an account receives and retains it 
 
 stated. Cocking -v. Ward, i C. B. 858; 
 15 L. J. C. P. 246 
 
 A balance stated by the parties after a 
 ■hearing before referees had conamenced, 
 and which was reported to the referees, 
 and entered by tliem on their minutes, 
 •concludes the parties. Clark v. Fair- 
 child, 22 Wend. (N. Y.) 576. 
 
 What do not. — Mere admissions not 
 strong or pertinent enough to constitute 
 an agreement will not sustain an ac- 
 count stated. Kirtan v. Wood, i Mood 
 & Rob. 253; Lane v. Hill, 18 Ad. & El. 
 (N. S.) 252; Morton v. Rogers, 14 Wend. 
 {N. Y.) 576. Nor an acknowledgment of a 
 ■sum due. Evans v. Verity, Ryan & M. 
 239. Nor an acknowledgment wrongfully 
 ■obtained, or not intended. Stenton v. 
 Jerome, 54 N. Y. 4S0; Tucker v. Barrow, 
 I M. & R. 518. Nor acceptance by one 
 not duly authorized. Thallimerw. Brinck- 
 erhoff, 4 Wend. {N. Y.) 394. Nor the offer 
 Xa pay a less sum. Atkinson v. Woodall, 
 31 L. J. M. C. 174. Nor a qualified ac- 
 knowledgment. Evans v. Verity, R. & 
 M. 230. 
 
 So a mere conjecture expressed by 
 •one party to another, as to a certain sum 
 Ijeing due to the latter, affords no proof 
 ■of an account stated, unless it be adopted 
 by the latter. Hughes v. Thorpe, 5 M. 
 ■& W. 656. Nor does a mere offer to pay 
 •a sum of money, unaccompanied by any 
 ■admission, that there was a debt due. 
 Way man v. Hilliard, 7 Bing. loi. 
 
 An account rendered by a husband to 
 his wife of the receipt and expenditure 
 by him of moneys belonging to her sep- 
 -arate estate, although retained by her 
 without objection for four months, does 
 not thereby become conclusive upon her 
 •as an account stated. Southwick «/. 
 Southwick, I Sweeny (N. Y.), 47. 
 
 A computation of interest due upon a 
 bond and mortgage, made out by the 
 holder and delivered to the mortgagor, 
 is not conclusive as an account stated; 
 and the omission of the latter to object 
 to it merely raises a presumption of its 
 •correctness, which may be rebutted by 
 proof. Guernsey v. Rexford, 63 N. Y. 
 '631. 
 
 Among the papers of a testator were 
 found two letters, sealed and directed, 
 '■ For G., my late servant." G. had 
 teen in his service as housekeeper for 
 some years before his death, but had left 
 him for some time previously to that 
 ■event. These letters contained promis- 
 
 sory notes for large suras of money; and 
 one of the letters stated that the testator 
 inclosed 200/. as a mark of respect; and 
 the other letter stated that the inclosed 
 was for her long and faithful services. 
 G. applied to the executors for payment 
 of the notes, and upon seeing the notes 
 they paid her a portion, and promised to 
 pay the remainder, but afterwards re- 
 fused to do so. Held, as an action was 
 not maintainable by G. upon the notes, 
 which were in effect a legacy, and an 
 informal one, in not being duly attested 
 as required by 7 Will. 4 and i Vict. c. 26, 
 and therefore void, that the action was 
 not maintainable on an account stated, 
 inasmuch as the promise of the executors 
 was made on a supposed debt which in 
 fact was not due. - Gough &. Findon or 
 Tindon, 7 Exch. 48; 21 L. J. Exch. 58. 
 
 In an action for goods sold, and on an 
 account stated, to recover the value of 
 growing poles purchased from the plain- 
 tiff by the defendant, and afterwards car- 
 ried away by them, it apppeared that, at 
 the time of the bargain, some memoran- 
 dums in writing had been made, but 
 which were neither stamped nor signed 
 by the parties; and that the defendant, 
 after the poles were carried away, ad- 
 mitted that a balance was due to the 
 plaintiff, who, under these circumstan- 
 ces, was nonsuited. Held, that such 
 nonsuit was proper, as it was not proved 
 that the defendant had admitted a pre- 
 cise and definite sum to be due to the 
 plaintiff; and, therefore, that he could 
 not recover on the account stated, with- 
 out reference to the memoranda, which 
 were not admissible. Teall v. Auty, 4 
 Moore, 542. 
 
 An acceptor of a bill of exchange, on 
 application to him for payment, answered 
 that the bill had been altered as to the 
 acceptance, by being made payable at a 
 particular place; that he never made it 
 payable there, nor elsevvhere than at his 
 own house; and that he should take such 
 steps as the law would authorize on the 
 subject; that he had been prepared for 
 payment, and the party might have had 
 the money by calling at his house. Held, 
 that this was no acknowledgment of a 
 subsisting debt. Calvert v. Baker, 4 M. 
 & W. 417. 
 
 The plaintiff demanded 40/. upon an 
 agreement by the defendant, an incom- 
 ing tenant, to pay for growing crops; he 
 offered t6 pay 17/. Held, no evidence 
 
 115 
 
Acc[iiiescence. 
 
 A ceo UNT ST A TED. 
 
 Admissions.. 
 
 beyond such time as is reasonable under the circumstances, and, 
 according to the usage of the business, for examining and return- 
 ing it, without communicating any objections, he is considered to 
 acquiesce in its correctness, and he becomes bound by it as an ac- 
 count stated. Signature to the account or express admission is 
 not necessary.^ 
 
 to support an account stated. Wayman 
 V. Hilliard, 7 Bing. loi; 4 M. & P. 729. 
 
 Where th6re have been no pre-existing 
 mutual accounts or dealings, a statement 
 furnished and retained without objection 
 will not constitute an account stated. 
 Mellon V. Campbell, 11 Pa. St. 415. 
 
 A copy of account against a person 
 from the books of a corporation, given 
 to him by the book-keeper of the corpo- 
 ration, who also performed the duties of 
 secretary and assistant-treasurer thereof, 
 upon his request, is not binding upon 
 such corporation as an account stated, in 
 the absence of any authority in such 
 book-keeper to bind the corporation, or 
 of any intention on his part to do so. 
 Harvey v. West Side Elevated R. Co., 13 
 Hun (N. Y.), 392. 
 
 An award is generally not evidence of 
 an account stated as between the par- 
 ties to the submission. Bates v. Town- 
 ley, 2 Exch. 152. Compare Keen v. Bat- 
 shore, T Esp. 194; Salmon v. Watson, 4 
 Moore, 73. 
 
 An account stated cannot be based 
 on an appraisal where it does not appear 
 that both parties mutually agreed are the 
 appraisers, or recognized them as author- 
 ized to bind them by their action. Chi- 
 cago, etc.. R. Co. V. Peters, 45 Mich. 636. 
 See Buschman v. Morling, 30 Md. 384. 
 
 The retention of an account containing 
 an item of loan to a third person for 
 whom the party receiving the account is 
 not responsible is not an acquiescence. 
 Porter v. Lobach, 2 Bosw. (N. Y.) 188; 
 Spangler v. Springer, 22 Pa. St. 454. 
 
 An account stated cannot be based on 
 an appraisal where it does not appear 
 that both parties mutually agreed on the 
 appraisers, or recognized them as author- 
 ized to bind them by their action. Chi- 
 cago, etc., R. Co. V. Peters, 45 Mich. 636. 
 
 The rule of acquiescence ought not 
 to be applied to a party who claims that' 
 the statute of limitations began to run 
 from the time of rendering the account. 
 White V. Campbell, 25 Mich. 463; Rut- 
 ledge V. Moore, g Mo. 537; Carver v. 
 Hayes, 47 Me. 257; Morse v. Allen, 44 
 N. H. 33; Hughes v. Thorpe, 5 M. & W. 
 656; Lane v. Hill, 18 Q. B. 252; Calvert 
 V. Baker, 4 M. & W. 417; Evans v. Verity, 
 R. & M. 239; Burgh v. Legge, 5 M. & W. 
 418. 
 
 Where objection was made to an item 
 of credit in an account rendered by one 
 party to another, and notice of the objec- 
 tion was given at the time of its render- 
 ing, or soon after, and the balance shown, 
 by the account so rendered was carried 
 forward into subsequent accounts ren- 
 dered, which were received and filed 
 without objection, but without waiving 
 or withdrawing the objection to the dis- 
 puted item of credit, and the party ren- 
 dering the accounts afterwards settled 
 and paid the balance exhibited against 
 him by his accounts so rendered, and 
 obtained a receipt therefor, under an 
 agreement that the said disputed item 
 should remain open, and not be consid- 
 ered as acquiesced in by the other party. 
 held, that as to the disputed item of 
 credit, the accounts so rendered are not 
 to be regarded as accounts stated. Dud- 
 ley V. Geauga Iron Co., 13 Ohio St. 168. 
 
 A letter containing merely a conjecture 
 as to the amount due is not evidence of 
 an account stated. Hughes v. Thorpe, 5 
 M. & W. 656. . 
 
 A mere offer to pay a sum of money, 
 unaccompanied by any admission that 
 there is a debt due. will not constitute an 
 account stated. Wayman v. Hilliard, 7 
 Bing. loi. 
 
 It is for the court to decide whether a 
 conversation amounts to an account 
 stated. Bishop v. Cambre, 3 C. & P. 55. 
 
 Where, on a settlement of accounts be- 
 tween the plaintiff and the defendant, a 
 balance was struck, which the defendant 
 agreed was correct, adding, however, 
 that when he had done certain things 
 there would not be much, if anything, 
 between them, it was held that this was 
 good evidence of an account stated. 
 Rigby V. Jeffrys, 7 Dowl. 561. See Cal-^ 
 vert V. Baker, 4 M. & W. 417; Evans v. 
 Verity, R. & M. 239. 
 
 An allegation that the plaintiff and the- 
 defendant "have had accountings and 
 settlements" is not an averment of an ac- 
 count stated. Ward v. Farrelly, 9 Mo. 
 App. 370. 
 
 1. White V. Hampton, 10 Iowa, 238; s. 
 c, 62 Am. Dec. 81; Smith v. Marvin, 27 
 N. Y. 137; BuUard v. Raynor, 30 N. Y. 
 197: Guernsey v. Rexford, 63 N. Y. 631; 
 Volkening v. De Graaf, 81 N. Y. 268j 
 Powell V. Noye, 23 Barb. (N. Y.) 184; 
 
 116 
 
Aoquiescence. 
 
 A ceo UNT ST A TED. 
 
 AdmissionSr 
 
 But the silence of the party to whom the account is sent may 
 
 Locknrood v. Thorne, II N. Y. 179; 
 Owen V. Boerum,' 23 Barb. (N. Y.) 1S7; 
 Towsley v. Denison, 45 Barb. (N. Y.) 
 490; Avery v. Leach, 9 Hun (N. Y.), 
 106; Bruen v. Hone, 2 Barb. (N. Y.) 
 586; Murray v. Toland, 3 Johns. Ch. 
 (N. Y.) 569; Atwaler v. Fowler, i Edw. 
 Ch. (N. Y.) 417; Philips v. Belden, 2 
 Edw. Ch. (N. Y.) i; Hutchinson v. Mar- 
 ket Bank, 48 Barb. (N. Y.) 302; Case v. 
 Hotchkiss, [ Abb. App. Dec. (N. Y.) 
 324; Gilchrist v. Brooklyn, etc., Assoc. 
 66 Barb. (N. Y.) 390; 59 N. Y. 495; 
 Brown v. Vandyke, 8 N. J. Eq. 795; 
 s. c. 55 Am. Dec. 250; Darlington v. 
 Taylor, 2 Grant (Pa.), 195; Bevan v. 
 Cullen, 7 Pa. St. 281; Thurmond v. 
 Sanders, 21 Ark. 255; Shepard v. Bank, 
 15 Mo. 148; Powell V. Pacific R. Co., 
 65 Mo. 658; Langdon v. Roane. 6 Ala. 
 518; s. c, 41 Am. Dec. 60: Burden v. 
 McElmoyle, i Bail. Ch. (S Car.) 375; 
 Gooch V. Vaughan, 92 N. Car. 610; Hawk- 
 ins z/. Long, 74 N. Car. 781; Stebbins v. 
 Niles, 25 Miss. 267; Coopwood v. Bolton, 
 26 Miss. 212; Rufnerz/. Hewett, 7 W. Va. 
 585; Townes v. Birchett, 12 Leigh (Va.). 
 173; Craighead v. Bank, 7 Yerg. (Tenn.) 
 799; Tharp v. Tharp, 15 Vt. 105; Free- 
 man V. Howell, 4 La. Ann. 196; s. c. , 50 
 Am. Dec. 561; Darby v. Lastrapes. 28 
 La. Ann. 605; Mansell ». Payne, 18 La. 
 Ann. 124: Terry v. Sickles, 13 Cal. 427; 
 Treas v. Truitt, 2 Colo. 489; Benites v. 
 Hampton, 3 Utah. 369; Cobb v. Arun- 
 dell. 26 Wis. 553; White v. Campbell, 25 
 Mich 463; Freeland v. Heron. 7 Cranch 
 (C. C), 147; Baker v. Biddle, Baldw. 
 (U. S.) 394; Wiggins v. Burkham, 10 
 Wall. (U. S.) 129; Marye v. Slrouse, 6 
 Sawy.(U. S.)204,; s. c, 5 Fed. Repr. 483; 
 Willis V. Jernegan, 2 Atk. 251; Sherman 
 V. Sherman, 2 Vern. 276. ^ 
 
 In Pennsylvania the receipt of an ac- 
 count by a debtor without objection 
 makes it prima-facie evidence of the 
 claim. Verrler v. Guillon, 97 Pa. St. 
 ■63. See Spangler v. Springer, 22 Pa. St. 
 
 454- 
 
 In Wharton v. Anderson, 28 Minn. 
 301, the court said: " There is some con- 
 fusion in the books as to the precise 
 effect of a stated account upon the rights 
 of the parties, but we are inclined to the 
 opinion that it is only primafacie evi- 
 dence of the correctness of the balance, 
 and not conclusive upon it, unless in 
 arriving at the agreed balance there has 
 been some concession made upon items 
 disputed between the parties, so that the 
 balance is the result of a compromise, or 
 some act has been done or forborne in 
 
 consequence of the accounting, and re- 
 lying upon it, which would put the party 
 claiming the benefit of it in a worse posi- 
 tion than as though it had not been had, 
 so as to bring the case within the princi- 
 ples of an estoppel in pais. A stated 
 account not affected by such new con- 
 sideration or estoppel may be impeached 
 for mistake or error in law or in fact with 
 respect to the items included in it, or for 
 omission of items. These positions are 
 sustained by weighty authority." 
 
 The acceptance and retention of an 
 account without objection, although tend- 
 ing to establish an admission of its cor- 
 rectness, is not conclusive; it may be 
 met by proof of mistake undiscovered 
 while the account was so retained, and 
 the question then becomes one of fact 
 for a jury. Sharkey i/. Mansfield, 90 
 N. Y. 227. 
 
 The rule that delay in objecting to an 
 account stated will be deemed an acqui- 
 escence applies to corporations. Bradley 
 V. Richardson, 2 Blatchf. '(V. S.) 354. 
 
 An account containrng an item of a 
 loan to a third person, for which the 
 party to whom the account is stated is 
 not responsible, does not become con- 
 clusive by being retained for several 
 months. Porter v. Lobach, 2 Bosw. (N. 
 Y.) 1S8. See Spangler w. Springer, 22 Pa. 
 St. 454- 
 
 If the party has previously disclaimed 
 all liability upon the account, he is not 
 bound to examine the items and object to 
 them. Quincy v. White. 63 N. Y. 370. 
 
 Where two statements are made of the 
 account, and the first is approved, no 
 notice need be taken of the second one. 
 Cartwright v. Greene, 47 Barb. (N. Y.)9. 
 
 An account rendered by a husband to 
 his wife, of moneys disbursed for her 
 use, out of her separate estate, does not 
 become any account stated, though re- 
 tained without objection. Southwick v, 
 Southwick, I Sweeny (N. Y.), 47. 
 
 Where the pass-book of a depositor in 
 a bank is written up and delivered to him 
 and retained without objection, it consti- 
 tutes an account stated. Marye v. 
 Strouse, 6 Sawyer (U. S.). 204; s. c, 5 
 Fed. Repr. 483; Leather Manuf. Bank 
 V, Morgan. 117 U. S. 96; Schneider z'. 
 Irving Bank, i Daly (N. Y.), 500; Hutch- 
 inson V. Market Bank, 48 Barb. (N. Y.) 
 302; Welsh V. German Am. Bank, 73 
 N. Y. 424: Peddicord v. Connard, 85 111. 
 102; Craighead v. Bank, 7 Yerg. (Tenn.) 
 309; Union Bank v. Knapp, 3 Pick. 
 (Mass.) 96; s. c, 15 Am. Dec. i8i. Cam- 
 pare Picket V. Merchants' Bank, 32 Ark. 
 
 117 
 
Acquiescence. 
 
 ACCO UNT ST A TED. 
 
 Admissions. 
 
 be explained by showing that he was absent from home, suffering 
 
 346; Ex parte Randleson, 2 Deac. & 
 Chit. 534. 
 
 The writing-up of a depositor's bank- 
 book and return of checks and vouchers, 
 if it becomes an account stated by his 
 negligence in not discovering and giving 
 notice of errors, can yet be impeached 
 for fraud or mistake. Welsh v. German 
 Am. Bank, 73 N. Y. 424. 
 
 A depositor who had been in the habit 
 of checking out all his money shortly 
 after he deposited it, was notified of a 
 balance long after he supposed he had 
 exhausted his account, and immediately 
 withdrew it. He made no inquiry or ob- 
 jection, but sued the bank, nearly two 
 years afterwards, for an alleged balance. 
 Held, that the depositor's course in with- 
 drawing the balance on notification of it 
 was a strong case of acquiescing in an 
 account stated, which required him to 
 bring himself within some rule that 
 •would allow him to impeach it, and that 
 he had the burden of impeaching it. 
 Amer. Nat. Bank «/. Bushey, 45 Mich. 
 135; and where the pass-book is written 
 ■up several times upon the same basis, 
 and the amounts shown thereon drawn 
 out, and several years elapse before a 
 formal demand is made for the amount 
 of missing checks claimed to be charged 
 thereon in error, there is clear evidence 
 of an account settled. Clark v. Me- 
 chanics' Nat. Bank, 15 Week. Dig. (N. 
 Y.) 505. 
 
 A presented his account to B, who cor- 
 rected some items. Held, it became an 
 account stated as to the items not ob- 
 jected to, binding upon B's representa- 
 tives. Sergeant v. Ewing, 36 Pa. St. 
 156. 
 
 A father who receives a bill of goods 
 charged to his account, and retains it for 
 a year without objection, must be deemed 
 to have acquiesced in its correctness, and 
 cannot afterward insist that the goods 
 were sold to his son, and that the latter 
 was not authorized to buy goods on his 
 credit. Avery w. Leach, 9 Hun (N. Y.), 
 io5. 
 
 The defendant on being shown the 
 plaintiff's account by the clerk of the 
 latter, objected to one item, but made no 
 remark as to the others, and promised 
 to send corn for the balance. Held, to 
 be sufficient evidence of an account 
 stated. Chisman v. Count, 2 M. & G. 
 307; Wiggins V. Burkham, 10 Wall. (U. 
 S.) 129; Sergeant v. Ewing, 36 Pa. St. 
 156; Lockwood V. Thorne, 11 N. Y. 170; 
 s. c, 62 Am. Dec. 81. 
 
 Where an account was presented to 
 
 the debtors, and they asked time to pay 
 by instalments on account of the heavy 
 balance, and one month afterward sent a 
 .check for an instalment, and they gave 
 no notice that they rejected the account 
 after examination, — h^id. that they must 
 be deemed to have acquiesced. Mac- 
 pherson v. Small, 41 N. Y. Super. Ct. 
 
 536- 
 
 A delivered goods to B, to be sold and 
 the ■ proceeds applied upon a debt due 
 from A to B. A claimed a balance due 
 him, and proved thatB admitted the cor- 
 rectness of the amount, and said he 
 would pay it over. Held, that though the 
 sale was absolute in law, there was evi- 
 dence that it was accompanied by a 
 trust that the defendant should account 
 for the proceeds, and that the facts 
 showed a sufficient consideration for the 
 account stated by B to entitle A to recover 
 the balance, as money due upon an ac- 
 count stated. Howard v. Brownhill, 2 
 Com. L. R. 125; o. c, 23 L. J. Q. B. 23. 
 
 Where a person who had worked for 
 another fifteen or twenty years, and had 
 received from his employer's book-keeper 
 several statements of his account from 
 the books, each beginning with the bal- 
 ance on the last preceding statement, and 
 kept the next to the last some seven 
 months, until the last was rendered, be- 
 fore making any objection thereto, — 
 held, that the effect of his receiving and 
 keeping thestatements was to make them 
 accounts stated, and cast the burden of 
 impeaching them for error upon the party 
 alleging it. Wiley v. Brigham, 16 Hun 
 (N. Y.), 106. 
 
 Where the E. Bank receiving from H., 
 one of its customers, a sight draft for 
 collection, forwarded the same for that 
 purpose to its correspondent, the Y. 
 Bank, which sent it to a third bank, but 
 in the mean time, supposing it to have 
 been paid, gave the E. Bank credit there- 
 for in its semi-monthly account, and the 
 latter credited the amount to H., but, be- 
 ing afterward notified by the Y. Bank of 
 the mistake, refused to take back the 
 draft, claimed that the latter bank should 
 suffer the loss, on the ground of delay in 
 collecting, and continued for two and a 
 half years afterward to render accounts 
 to H. without charging the draft back to 
 him, — held, that there was an account 
 stated between the E. Bank and H. in re- 
 spect to the draft, which precluded it 
 from denying its' liability therefor. Har- 
 ley V. Eleventh Ward Bank, 76 N. Y. 
 618. 
 
 Drawing for the balance as shown by 
 
 118 
 
Acquiescence. 
 
 ACCOUNT STATED. 
 
 Admissions. 
 
 from illness, or expected shortly to see the other party and in- 
 tended and preferred to make his objections in person. ^ 
 
 If a party pays the balance of an account stated under duress 
 of goods or person, he is not bound by such payment.* Or gives 
 
 the account stated is an admission of its 
 correctness. Lockwood v. Thorne, li 
 N. Y. 170; s. c, 62 Am. Dec. 81. Also 
 a payment of the balance. Bruen v. 
 Hone, 2 Barb. (N. Y.) 586. Also the 
 correction of the account by the debtor. 
 Sergeant w. Ewing, 36 Pa. St. 156. 
 
 A party stated an account and sent it 
 with a check for the balance by a mes- 
 senger to the other party. Objection 
 was made that the balance was too small, 
 but the check was received and cashed. 
 Held, that the party was concluded by 
 the acceptance. Davenport v. Wheeler, 
 7 Cow. (N. Y.) 231. 
 
 Defendant immediately after the re- 
 ceipt of an account stated for goods sold 
 to him, and which had already been under 
 his control and inspection for five months, 
 made two part payments thereon. In the 
 letter containing the last payment he ac- 
 knowledged that there was a balance still 
 due, provided the goofls still on hand 
 were "up to the contract." Held, that 
 from these facts the law raised an implied 
 agreement that the account was correct. 
 Samson 71. Freedman, 102 N. Y. 699. 
 
 Where the account was rendered by a 
 mistake, the silence of the party will not 
 make it an account stated. Polhemus v. 
 Heiman, 50 Cal. 438. 
 
 A plaintiff put in evidence an account 
 signed by the defendant, showing a bal- 
 ance of 321/. 5f. to be due. The first 
 item in this account was, "To principal 
 and interest of old account with Dr. J. 
 French, transferred as per letter, 146/. 3J. 
 6,:/." The letter was as follows; *" I 
 hereby acknowledge to have received 
 from J. M. French. Esq., 321/. jj-., and 
 should I die during my absence from 
 England, or at any time before the said 
 debt is liquidated, it is my desire that he 
 should be paid out of whatever property 
 I might possess at the time of my death, 
 with legal interest on the same." Held, 
 that the plaintiff was not entitled to re- 
 cover the 146/. 3J. (>d., the evidence 
 showing a mere promise, without consid- 
 eration, to pay the debt of a third per- 
 son. French v. French, 3 Scott, N. R. 
 121: 2 M. & G. 644. 
 
 Where an account has been assigned, 
 an admission made either before or after 
 the assignment may be proved. Powell 
 y. Pacific R. Co., 65 Mo. 658. 
 
 Evidence tending to show that the ac- 
 count was received and held by the de^ 
 
 fendant, who offered «o objection to it, 
 will not supply an omission to plead an 
 ac. ount stated. Ward v. Farrelly, 9 Mo. 
 App. 370; Emery v. Pease, 20 N. Y. 62. 
 The signature of a party's name to an 
 account current is not conclusive evi- 
 dence of his owing the amount stated; 
 but the implied admission may be re- 
 butted by competent proof as fraud, 
 error, or mistake. Nichols v. Alsop, 6 
 Conn. 477; Perkins v. Hart, 11 Wheat. 
 (U. S.) 237; Stewart v. Conner, 13 Ala. 
 
 94. 
 
 1. Wiggins V. Burkham, 10 Wall. (U. 
 S.) 129; Lockwood V. Thome, 18 N. Y. 
 289. 
 
 Silence on the part of one receiving an 
 account will not give it the force of an 
 account stated, unless the circumstances 
 are such as to justify an inference of his 
 assent to its correctness. If he has pre- 
 viously disclaimed all liability upon the 
 account, he is not bound to examine the 
 items and object to them, upon its deliv- 
 ery to him, in order to avoid the effect 
 of silence as an admission. Quincey v. 
 White, 63 N. Y. 370. 
 
 Where a person for whose account 
 goods had been sold by another, on re- 
 ceiving from the latter an account of 
 sales, called on him several times for the 
 purpose of getting explanations and a 
 more detailed account, and was prom- 
 ised such an account when receiving a 
 payment, but was never furnished there- 
 with, though he waited a long time and 
 wrote for it, held, that he had not in 
 any way so acquiesced in the account so 
 rendered to him as to make it binding 
 on him as an account stated. Carpenter 
 V. Nickerson, 7 Daly (N. Y.), 424. 
 
 2., Stenton v. Jerome, 54 N. Y. 480; 
 Dunham v. Griswold, 100 N. Y. 224; 
 Kelsey v. Hobby. 16 Pet. (U. S.) 269. 
 See Quincey v. White, 63 N. Y. 370; 
 Tucker v. Barrow, 7 B. & C. 623. 
 
 Where an agreement is made by par- 
 ties in satisfaction of a claim in dispute 
 between them, where each is cognizant 
 of all the facts, and no fraud or imposi- 
 tion is practised, it is valid and binding 
 upon them, regardless of the merits of 
 the original claim, and cannot be set 
 aside unless it be shown that the same 
 was procured by duress. If such an 
 agreement be procured by threats of 
 criminal prosecution it may be avoided; 
 but a threat of legal process, even includ- 
 
 119 
 
Acqaiescence. 
 
 A ceo UNT ST A TED. 
 
 Admissions. 
 
 a receipt for a balance accompanied by a protest against one of 
 the items. 1 
 
 Giving a note for a balance is not necessarily an admission of 
 correctness of the account, but may he prtma-facie evidence of a. 
 settlement.* 
 
 ing arrest and imprisonment, is not suffi- 
 cient to constitute duress. Dunham v. 
 Griswold, loo N. Y. 224. 
 
 1. Smith V. Drew, 10 Ben. (U. S.) 614. 
 
 3. Morton v. Rogers. 14 Wend. (N. 
 Y!) 576; McDougall V. Cooper, 31 N. Y. 
 498; Sherman v. Mclntyre, 7 Hun (N. 
 Y.). 592; Dutcherw. Porter, 63 parb. (N. 
 Y.) 15; Smith V. Holland, 6i Barb. (N. 
 Y.) 333; Treadwell v. Abrams, 15 How, 
 Pr. (N. Y.) 219; Rosencrantz v. Mason, 
 85 111. 262; Hill V. Sloan, 59 Ind. 181; 
 Dunbar v. Miller, i Brock. (U. S.) 85. 
 See Burmester v. Hoganh, 11 M. & W. 
 97; Oliver v. Dovatt, 2 Moo. & Rob. 
 230; Jardine v. Payne, i B. & A. 663. 
 
 A promissory note is evidence of a 
 settlement between the parties thereto, 
 and may be received in evidence in sup- 
 port of the common count upon an ac- 
 count stated. Orr v. Hopkins, i Pac. 
 Repr. (N. Mex.) 181. 
 
 \\. \% prima-facie evidence that, at the 
 date of it, there was a settlement of all 
 demands between the parties. Dutcher 
 V. Porter, 63 Barb. (N. Y.) 15. In Stiles 
 V. Brown, i Gill (Md.), 350, it was held 
 that the giving of a note for the balance 
 forecloses an inquiry into all antecedent 
 transactions, unless on the ground of 
 error or fraud. 
 
 In August, 1844, the defendant gave the 
 plaintiff a promissory note for 23/. 2j. 
 8fl?., which the note described as being 
 the amount of interest due on a note for 
 117/. 4J., dated 6th July, 1838, up to 6th 
 July, 1844. H(ld, to be evidence of an 
 account stated in August, 1844, of a sub- 
 sisting debt of 117/. 4^. Perry v. Slade, 
 8 0. B. 115. 
 
 A note payable five years after date, 
 for value received, is evidence of an ac- 
 count stated, against which the Statute of 
 Limitations does not commence running 
 until the maturity of the note. Fryer v. 
 Roe, 12 C. B. 437. 
 
 I TI. — The plaintiff lent money to 
 A upon B's promise to become surety 
 for its repayment, and. after the money 
 was advanced, A and B signed and de- 
 livered to the plaintiff the following mem- 
 orandum: "We jointly and severally owe 
 you ;^6o." Held, evidence for the jury 
 of an account staled by A and B jointly. 
 Buck V. Hurst, L. R. i C. P. 297. 
 
 An I O U in the defendant's writing, 
 
 not addressed to any one, but produced 
 by the plaintiff, is prima-facie evidence of 
 an account stated with him. Douglas v. 
 Holme. 4 P. & D. 685; 12 A. & E. 641; 
 s. p., Payne v. Jenkins, 4 C. & P. 324. 
 
 At the sale of an estate, one of the con- 
 ditions being that a deposit should be paid 
 immediately, a lot was knocked down ta 
 a person, who having no money with 
 him, an arrangement was entered into, 
 with the sanction of the vendor's solici- 
 tor, in virtue of which the vendee gave 
 his I O U, addressed to the auctioneer, 
 for the deposit, and signed a memoran- 
 dum that he had purchased the property 
 and paid the deposit, and bound himself 
 to complete the purchase, which memo- 
 randum was also signed by the auctioneer 
 as agent of the vendor. The bargain 
 having afterwards gone off, held, that 
 the auctioneer might recover the amount 
 of the I O U under an account stated. 
 CleaVe v. Moors, 3 Jur. N. S. 48, Exch. 
 The directors of a mine conducted on 
 the cost-book principle, wanting money 
 to work the mine, entered into an agree- 
 ment that they should each take 100 
 shares in it, at i/. per share, and each of 
 them accordingly gave his I O tJ to the 
 secretary for 100/. Held, evidence of an 
 account stated between the secretary and 
 a director who had given his I O U pur- 
 suant to the agreement. Graves v. Cook, 
 2 Jur. N. S. 475, Exch. 
 
 Upon a sale of a leasehold, the vendee 
 agreed to pay a deposit of 50/., and the 
 residue on completion. Instead of actu- 
 ally paying the 50/., he gave the vendor 
 5/.'and an I O U for 45/. Held, that the 
 vendor, failing to make a good title, was 
 not entitled to recover the 45/., as money 
 due upon an account stated, and that the 
 defence was admissible under the plea of 
 never indebted. Wilson t/. Wilson. 14 C. 
 B. 616; 2 C. L. R. 818; 18 Jur. 581; 23 
 L. J. C. P. 137. 
 
 Where a defendant verbally agreed to 
 purchase of the plaintiff the lease and 
 good-will of his premises, and on being 
 asked for a deposit, gave an I O U for 
 25/., but afterwards refused to complete 
 the purchase, keld, that the I O U was 
 evidence of an account stated. Lemere 
 V. Elliott. 6 H. & N. 656; 7 Jur. N. S. 
 1206; 30 L. J. Exch. 350; 4 L. T. N. S; 
 304. 
 
 120 
 
lleesonable Time. 
 
 ACCOUNT STAINED. 
 
 Seasonable Time, 
 
 8. Reasonable Time. — What is a reasonable time where there is 
 Tio 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 properly be submitted to the jury, under the instructions 
 •of the court as to the law.^ It is to be determined by reference 
 
 1. Wiggins V. Burkham, lo Wall. (U. 
 S.) 129; s. c, B'k ig L. C. P. 885; i 
 Myer's Fed. Dec. iS; Terry v. Sickles, 
 13 Cal. 427; Gatling v. Newell, g Ind. 
 577; Lockwood V. Thorne. 18 N. Y. 285; 
 Roth V. Buffalo, etc., R. Co., 34 N. Y. 
 .548; Kingsley v. Wallis, 14 Me. 57; 
 Murray w. Smith, I Hawks. (N. Car.) 41; 
 Darby v. Lastropes, 28 La. Ann. 605 ; 
 Freeman v. Howell, 4 La. Ann. ig6; s. 
 •c, 50 Am. Dec. 561. See Story's Eq. 
 /Juris. § 520; Sherman v. Sherman, 2 
 Vern. 276; 2 Parsons Cont. 661. 
 
 Between merchants at home, an ac- 
 •count which has been presented, and no 
 -objection made thereto after the lapse of 
 several posts, is treated under ordinary 
 •circumstances as being by acquiescence 
 a stated account. Between merchants in 
 ■different countries, a rule founded in 
 rsimilar considerations prevails. If an 
 account has been transmitted from one to 
 the other, and no objection is made after 
 several opportunities of writing have oc- 
 -curred, it is treated as an acquiescence in 
 the correctness of the account trans- 
 mitted, and therefore it is deemed a 
 stated account. In truth, in each case the 
 rule admits or rather requires the same 
 general exposition. It is, that an account 
 rendered shall be deemed an account 
 ■stated from the presumed approbation or 
 ■acquiescence of the parties, unless an 
 ■objection is made thereto within a rea- 
 sonable time. That reasonable time is 
 to be judged of, in ordinary cases, by the 
 habits of busiiiess at home and abroad; 
 ;and the usual course is required to be fol- 
 lowed, unless there are special circum- 
 stances to vary it or to excuse a depar- 
 ture from it. L. Story's Eq. Juris. (13th 
 •ed.), § 5?6. What constitutes a reasonable 
 time in such a case is a question of law. 
 •Oil Co. V. Van Etten, 107 U. S. I2g; 
 Perkins v. Hart, 11 Wheat. (U. S.) 237; 
 Toland v. Sprague, 12 Pet. (U. S.) 334; 
 Wiggins V. Burkham. 10 WalL (U. S.) 
 I2g; Lockwood w. Thorne, 11 N. Y. 170; 
 s. c, 62 Am. Dec. 81. 
 
 If an account is made up and sent by 
 one party to the other by mail, and the 
 latter keeps it for some considerable time 
 without making any objection, he is held 
 to have acquiesced in it. Stenton v. Je- 
 rome, 54 N. Y. 480; Davenport v. 
 Wheeler, 7 Cow. (N. Y.) 231; BaMey v. 
 Bensly, 87 lU. 556. 
 
 If he retains the account, and permits 
 several mails to pass without objecting to 
 it, he will be held to have admitted its 
 correctness. Freas v. Truitt, 2 Col. 48g; 
 Brown v. Vandyke, 4 Halst. Ch. (N. J.) 
 7g5; s. c, 55 Am. Dec. 250; Murray v. 
 Toland, 3 Johns. Ch. (N. Y.) 569. The 
 court cannot take judicial notice of the 
 car-time and number of mails. Wig- 
 gins V. Burkham, 10 Wall. (U. S.) I2g. 
 Several months is not a reasonable time. 
 Davenport w. Wheeler, 7 Cow. (N. Y.) 
 231; Wiley V. Brigham, 16 Hun (N. Y.), 
 106. Three years is not a reasonable 
 time. Lawrence v. Ellsworth, 41 Ark. 
 502. 
 
 Where the account is between mer- 
 chants residing in different countries, two 
 years is not a reasonable time. Bain^; 
 bridgei v. Wilcocks, i Baldw. (U. S.) 53g; 
 s. c, I Myer's Fed. Dec. 21. § 17. See 
 Bruen v. Hone, 2 Barb. (N. Y.) 586; Sey- 
 mour V. Marvin. 11 Barb. (N. Y.) 80. 
 
 The time within which an account shall 
 be taken as a stated one, unless objected 
 to, cannot be definitely stated; it depends 
 on the circumstances of the case, whether 
 an acquiescence or a presumed agreement 
 to the correctness of the account exists. 
 Bainbridge v. Wilcocks, i Baldw. (U. S.) 
 53g; : Myer's Fed. Dec. § 16. 
 
 irhe defendants asked the court to. in- 
 struct as follows: "That if the plaintiff 
 made out his account on the i6th of May, 
 and then sent it to the defendants, it was 
 within a reasonable time, if the defend- 
 ants on the 28th of May. by letter, notified 
 the plaintiff of their dissatisfaction with 
 that account." The court refused the in- 
 struction. On appeal, the court said: "If 
 the car-time between Hagerstown and 
 Chicago were ten hours, and there were 
 "several posts" between the time when 
 the account sent to the defendants, on 
 the l5th of May, reached them, and the 
 28th of May, when they replied, the court 
 properly refused the instruction asked. 
 Whether these facts were in evidence 
 does not appear. We are asked to take 
 judicial notice of them. This we cannot 
 do, however well satisfied we may be 
 upon the subject. They should have been 
 proved by proper testimony." Wiggins 
 Burkham, 10 Wall. (U. S.) I2g; s. c, I v. 
 Myer's Fed. Dec. 18. 
 
 Full accounts were rendered by de- 
 fendants to plaintiff from time to time, 
 
 121 
 
To whom Stated. 
 
 A ceo UNT ST A TED. 
 
 Third Party— Set-off. 
 
 to the relations of the parties', or the usual course of business of 
 the particular class of persons concerned. * 
 
 9. To whom Stated. — The account must have been stated to the 
 debtor himself or his agent, and it is not Sufficient if made to a 
 stranger.'^ If the account be stated to or by an agent, his author- 
 ity must be shown. ^ 
 
 10. Third Parties who assume or guarantee a debt are bound by 
 an account stated the same as the original debtor.* 
 
 11. Set-off. — If the buyer has stated an account with the vendor, 
 in which the vendor has, by mutual agreement, received credit for 
 the amount of goods sold, as a set-off against items admitted to 
 be due by the vendor to the buyer, this is an equivalent to an 
 actual cash payment by the buyer of the price of the goods.** 
 
 during the course of their joint business. 
 All such accounts had been rendered be- 
 fore February, 1865, when, after a discus- 
 sion of one item, the account Avas stated 
 and settled. This was accepted until the 
 fall of 1867. two and a half years there- 
 after. Held, that it was too late to open 
 the account, except for fraud, error, or 
 mistake. Burke v. Isham, 53 N. Y. 
 631. 
 
 Where a firm in New York City, on Feb- 
 ruary 1st, sent an account stated to their 
 customers in Ulster County, and on Feb- 
 ruary 17th drew for the balance, and the 
 dra/t was paid, held, that the account 
 could not be opened, except for mistake 
 or fraud. Lockwood v. Thorne, 11 N. 
 Y. 170; ». c, 62 Am. Dec. 81. 
 
 1. Freeman v. Howell, 4 La. Ann. ig6; 
 s. c. , 50 Am. Dec. 561. 
 
 2. Breckon v. Smith, I Ad. & El. 488; 
 Bates V. Townley, 2 Exch. 152; Tucker 
 ■V. Barrow. 7 Barn. & Cress. 623; Hoffar 
 V. Dement, 5 Gill (Md.), 132; Thurmond 
 V. Sanders, 21 Ark. 255. 
 
 The statement may be in writing or by 
 word of mouth. Singleton v. Barrett, 2 
 Cromp. & J. 368. 
 
 In an action on an account stated 
 against the three defendants as partners, 
 in which the defendant H. alone appeared 
 and answered, it appeared on the trial, 
 after evidence showing that the defend- 
 ants B and M. originally composed the 
 firm, under the name of B. & M., and that 
 the defendant H. subsequently became a 
 partner, and the firm-name was. there- 
 fore, changed to B,, M & Co.; that the 
 plaintiff sent by mail, from Stockton, his 
 place of residence, a copy of an account, 
 inclosed in an envelope and properly di- 
 rected to the defendant H. at Frisco, his 
 residence and post-office address. This 
 account was headed " B. & M. in acct. 
 with L. Benites," and contained a large 
 number of items running through several 
 
 years, only one of which was charged to the 
 firm of B., M.&Co., andshowed a balance 
 of $1663.70 due to the plaintiff. No letter 
 or other writing accompanied it explain- 
 ing it, or why it was sent to the defendant 
 H., nor demanding payment. There was 
 no evidence whatever showing the dis- 
 tance between Stockton and Frisco, nor 
 the time required for transportation of 
 the mail between those places, nor the 
 number or frequency of mail communica- 
 tion between them, nor the length of 
 time which had elapsed after the mailing 
 of said account to the defendant H. be- 
 fore the commencement, of this action; 
 nor did it appear when this action was 
 commenced. There was evidence that 
 the defendant H. received the account. 
 Held, that no account stated between the 
 parties was shown, and a ruling on the 
 trial refusing to admit a copy of such ac- 
 count in evidence against the defendants 
 was not error. Benites v. Hampton, 3 
 Utah. 369. 
 
 3. Harvey v. West Side, etc., R. Co., 
 13 Hun (N.Y.), 392; Thallimer v. Brinck- 
 erhoff, 4 Wend. (N. Y.) 394. 
 
 4. Bullock ».-Boyd, i Hoffm. Ch. (N. 
 Y.) 294; Buck V. Hurst, L. R. i C. P. 
 297. 
 
 5. Benjamin on Sales (Bennett's Ed.), 
 § 711; Livingstone v. Whiting, 15 Q. B. 
 722; s. c, 19 L. J. Q. B. 528, See 
 Dudley v. Geauga Iron Co., 13 Ohio St. 
 168; Bushee z/. Allen, 31 Vt. 631; Filer z/. 
 Peebles. 8 N. H. 226; White v. Whiting, 
 8 Daly (N. Y.). 23; Smith v. Tucker. 2 E. 
 D. Smith (N. Y.), 193; Johnson v. John- 
 son. 4 Call (Va.), 38. 
 
 An itemized account for cotton sold 
 and shipped by defendant to plaintiffs, on 
 which he claimed a balance due him, and 
 pleaded it as a set-off, having been fur- 
 nished by him to them, as he testified, 
 and retained by them without objection 
 to the weights of the cotton as therein 
 
 133 
 
niegal. 
 
 A ceo 'UJSTT ST A TED. 
 
 New Promise. 
 
 Where there are cross-demands, it is not necessary that the items 
 should consist of debts due in prasenti, or that they should be 
 legal debts, but equitable claims may also be brought into the 
 account '^ 
 
 12. Illegal. — A claim which is absolutely void by reason of an 
 illegality or immorality in the consideration cannot be relied on 
 in support of a count upon an account stated.* 
 
 13. New Promise. — The stating of an account is in the nature of 
 a new promise.^ 
 
 specified; that portion of the account 
 cannot be excluded as evidence, on mo- 
 tion, because defendant further states 
 that he did not himself weigh the cotton, 
 but that the weights were furnished to 
 him by the public weigher. Sloan v. 
 Guice, 77 Ala. 392. 
 
 1. Laycock v. Pickles, 4 B. & S. 497, 
 506. 
 
 8. Dunbar v. Johnson, 108 Mass. 519; 
 Keane v. Brandon, 12 La. Ann. 20. See 
 Thomas v. Hawkes, 8 M. & W. 140; 
 Cooking V. Ward, i C. B. 858, 870; Ken- 
 nedy V. Brown, 13 C. B. N. S. 677; Mos- 
 tyn V. Mostyn, 39 L. J. Chan. 780. 
 
 It is no bar to action on account stated, 
 that the defendant's indebtedness was for 
 liquors sold by the plaintiff on Sunday, 
 contrary to law, if the account was not 
 stated on Sunday; but if the sale was il- 
 legal for want of a license, the action on 
 an account stated could not be main- 
 tained. Melchoir v. iBcCarty, 31 Wis. 
 605; s. c, II Am. Rep. 605. See Dun- 
 bar V. Johnson, 108 Mass. 519. 
 
 Compare Sue. of Ross, 22 La. Ann. 480; 
 Smith V. Marvin, 27 N. Y. 137; Bullard 
 V. Raynor, 30 N. Y. 197; Young z/. Hill, 
 67 N. Y. 162; o. c, 23 Am. Rep. 99. 
 
 3. 3 Parsons Cont. (7th Ed.) 83; Smith 
 V. Glens Falls Ins. Co., 66 Barb. (N. Y.) 
 556; Holmes v. DeCamp, i Johns. (N.Y.) 
 34; Montgomerie v. Ivers, 17 Johns. 
 (N. Y.)38; Hoyt v. Wilkinson, 10 Pick. 
 (Mass.) 31. See White v. Campbell, 25 
 Mich. 463; McClellan v. West, 70 Pa. 
 St. 183; Johns V. Lantz, 63 Pa. St. 324; 
 Benites v. Hampton, 3 Utah, 369; Foster 
 V. Allanson, 2 T. R. 479. Compare Ver- 
 rier v. Guillon. 97 Pa. St. 63. 
 
 Under a statute providing that the ac- 
 knowledgment of a debt must be in 
 writing and signed by the party to be 
 charged, in order to take the debt out of 
 the statute of limitations, an account 
 stated, which is not supported by evidence 
 of some writing signed by the party to 
 be charged, will not prevent the running 
 of the statute against the previously ex- 
 isting liabilities included therein. Chace 
 V. Trafford, 116 Mass. 529; s.c, 17 Am. 
 Rep. 171. 
 
 A mutual account which has been 
 closed by stoppage of business transac- 
 tions between the parties does not be- 
 come by such cessation an account 
 stated, so as to be withdrawn from the 
 exception in the statute of limitations in 
 favor of merchants' accounts. Mande- 
 ville V. Wilson, 5 Cranch (U. S.), 15. 
 
 In August, 1844, the defendant gave 
 the plaintiff a promissory note for 23/. is. 
 id., which the note described as being the 
 amount of interest due on a note for 
 117/. 4J-., date July 6, 1838, up to July 6, 
 1844. Held, to be evidence of an ac- 
 count stated in August, 1844, of a sub- 
 sisting debt of 117/. 4J. Perry z;. Slade, 
 8Q. B. 115. 
 
 When the defendant claims the benefit 
 of the statute on the ground that the ac- 
 count sued on has been converted into a 
 stated one, through his assent to it as 
 rendered to him, it is not enough to sub- 
 stantiate the defence that there is no evi- 
 dence as to whether he objected or not, 
 nor is it sufficient to sustain such a defence 
 to prove that upon and after the ex- 
 hibition of the account he remained per- 
 fectly passive. He must go further. He 
 must show some word or act marking or 
 implying that he assented to the account. 
 White V. Campbell, 25 Mich. 463. 
 
 A, on August 6, 1868, agreed in writ- 
 ing to pay B a sum of money in August, 
 1870; immediately afterwards A pre- 
 sented to B an account of moneys pre- 
 viously advanced by him to B, or to B's 
 use. On February 2, 1869, A wrote to 
 B, in answer to a letter received from 
 him, stating that he preferred to give no 
 reply, and that he placed his papers in 
 the hands of counsel; also calling B's at- 
 tention to the fact that beseemed to have 
 forgotten that A had paid him certain 
 amounts. In August, 1870, B's counsel 
 wrote to A's counsel demanding pay- 
 ment of the full sum due from A to B 
 by the terms of the agreement in writing. 
 A's counsel answered that A would pay 
 the amount, less the sums paid by A to 
 and for B, as appeared by the account 
 theretofore furnished B's counsel re- 
 plied, declining the offer. In an action 
 
 133 
 
balance —Interest. 
 
 ACCO UNT STA TED. Parties not Merchants. 
 
 14. Balance. — The balance of a stated account is principal: it 
 ■cannot be re-examined to ascertain the items or their character.* 
 
 15. Interest. — An account stated draws interest from the time it 
 was rendered.* 
 
 16. Parties not Merchants. — The doctrine of liability from retain- 
 ing a stated account without objection has been held to be only 
 applicable between merchants ; but between other parties such 
 retention is a circumstance for the consideration of the jury.^ 
 
 ibroughc on March 6, 1875, by B against 
 .A, to recover the amount due on the in- 
 strument in writing, he!d, that the- 
 rrendering of the account by A to B had 
 not prevented the statute of limitations 
 ■from running against the same, and that 
 therefore A could not set up the amount 
 <lue on the account as a set-off to B's 
 claim. Held, further, that there was 
 nothing in A's letter to B, or B's silence 
 after its reception, which would estop B 
 from setting up the bar of the statute of 
 ilimitations to A's claim of set-off. Held 
 farther, that there was nothing in the 
 ■correspondence between B's counsel and 
 A's counsel which suspended B's right 
 of action, or amounted to a promise by 
 B to pay the account, or constituted an 
 .agreement by him that it should apply as 
 payment on the contract, so as to bar the 
 running of the statute of limitations 
 thereon, and enable A to take advantage 
 of the same as a set-off. Verrier v. 
 •Guillon, 97 Pa. St. 63. 
 
 1. McClelland v. West, 70 Pa. St. 183; 
 Hawkins v. Long. 74 N. Car. 781; Marye 
 
 ■V. Strouse, 6 Sawv. (U. S.) 204; s. t., 5 
 Fed. Repr. 483; Hodge v. Manley, 25 
 Vt. 210; s. c, 60 Am. Dec. 253; Orr v. 
 Hopkins, i Pac. Repr. (N. Mex.) 181. 
 
 2. Case v. Hotchkiss, 1 Abb. App. 
 Dec. (N. Y.) 324. 
 
 Compound interest is not recoverable 
 merely because included in an account 
 ■stated. Young v. Hill, 67 N. Y. 162; s. 
 c, 23 Am. Rep. gg. 
 
 3 Auding v. Levy, 57 Miss, jr; s. c, 
 -34 Am. Rep. 435. See Rich v. Eldredge, 
 .42 N. H. 153; Southwick w. Southwick, 
 I Sweeny (N. Y.). 47. Compare Tonnes 
 V. Birchett, 12 Leigh (Va.), 173; Shepard 
 V. Bank, 15 Mo. 148. 
 
 The Albany Law Journal \n reviewing 
 this case says: "This point does not 
 seem to have been raised or passed upon 
 in Lockwood v. Thome, 11 N. Y. 170, a 
 -case between tanners and leather mer- 
 chants; Stenton v. Jerome, 54 N. Y. 480, 
 a stockbroker and a customer; Case v. 
 Hotchkiss, I Abb. App. Dec. (N. Y.) 
 324, attorney and client; Towsley j;. Den- 
 ison, 45 Barb. (N. Y.) 490, a vender of 
 .stone and a canal contractor. So of 
 
 Terry v. Sickles, 13 Cal. 427, where it 
 does not appear that the parties were 
 merchants. White v. Hampton, 10 Iowa, 
 238, is not at all in point. The question 
 does not seem to have been raised in 
 Tharp v. Tharp, 15 Vt. 105. All these 
 cases, however, enforce the doctrine of 
 account staled between others than mer- 
 chants as an estoppel." 
 
 In Brown v. Kimmel, 67 Mo. 430, a 
 case for professional services, which 
 holds the contrary doctrine, the court 
 said : " The rule at best is a very flexible 
 one, and undoubtedly depends in its ap- 
 plication on the circumstances \ of each 
 case, to be judged by the nature of the 
 transaction, the habits of the business ia 
 which it occurs, and the course of trade." 
 
 In Marye v. Strouce, 6 Sawy. (U. S.) 
 204; s. c, 5 Fed, Repr. 483, it vfas held 
 that the writing-up of a pass-book be- 
 tween a broker and his customer made it 
 an account stated- and in Leather, etc., 
 Bank v. Morgan, ri7 U. S. 96, it was held 
 that the balancing of a pass-book be- 
 tween a bank and depositor made it an 
 account stated. The court said: " The 
 object of a pass-book is to inform the 
 depositor from time to time of the condi- 
 tion of his account as it appears upon the 
 books of the bank. It not only enables 
 him to discover errors to his prejudice, 
 but supplies evidence in his favor in 
 the event of litigation or dispute with the 
 bank. In this way it operates to protect 
 him against the carelessness or fraud of 
 the bank. The sending of his pass-book 
 to be written up and returned with the 
 vouchers is therefore, in effect, a demand 
 to know what the bank claims to be the 
 state of his account; and the return of 
 the book with the vouchers is the 
 answer to that demand, and, in effect, 
 imports a request by the hank that the 
 depositor will, in proper time, examine 
 the account so rendered, and either 
 sanction or repudiate it." 
 
 A pass-book kept by an employee, oc- 
 casionally handed in to the book-keeper 
 of the employer, by whom all necessary 
 entries were made therein, is an account 
 stated between the parties. Burke v. 
 Wolfe, 6 Jones & S. (N. Y.) 263. 
 
 124 
 
Opening the Account, 
 
 ACCOUNT STATED. 
 
 Fraud"— Mistake. 
 
 17. Opening the Account — Fraud — Mistake. — If there hasvjbeen 
 any mistake, omission, accident, fraud, or undue advantage by 
 which the account stated is vitiated and the balance incorrectly 
 stated, it will not be conclusive between the parties, but it maybe 
 opened and re-examined.* 
 
 See Shepard v. Bank, 15 Mo. 148; 
 Powell V. Pacific R. Co., 65 Mo. 658; 
 White V. Hampton, 10 Iowa, 238; While 
 V. Campbell. 25 Mich. 463; Wiggins v. 
 Burkham. 10 Wall. (U. S.) 129; s. c.B'k 
 19 L. C. P. 885; Union Bank v. Knapp, 
 3 Pick. (Mass.) 96; s. c, 15 Am. Dec. 
 181; Bank v. Stickney, 4 Scam. (111.) 4; 
 Fallansbee v. Parker, 70 111. 11; Peddi- 
 cord v. Connard, 85 111. 102; Harley u. 
 Eleventh Ward Bank, 76 N. Y. 618. 
 
 1. Story's Eq. Juris. (13th Ed.) 523; 
 Samson v. Freedraan, 102 N. Y. 6gg; 
 Carpenter u. Kent, loi N. Y. 591; 
 Sharkey v. Mansfield, go N. Y. 227; 
 Harley v. Eleventh Ward Bank, 76 N. Y. 
 618; lilclntyre v. Warren, 3 Abb. App. 
 Dec. 99; McDougall z'. Cooper, 31 N. Y. 
 498; Lockwood V. Thome, 18 N. Y. 157; 
 Kock V. Bonitz, 4 Daly (N. Y.), 11/; 
 Wilde V. Jenkins, 4 Paige (N. Y.), 481; 
 Newell V. Smith, 3 Atl. Repr. (Conn.) 
 ■674; Forman v. Brooks, 9 Pick. (Mass.) 
 212; Chatam v. Niles, 36 Conn. 403; 
 <joodwin V. U. S. Ins. Co., 24 Conn. 
 S91 ; Vandeveer v. Statesir, 39 N. J. L. 
 593; Brown v. Vandyke, 8 N. J. Eq. 795; 
 s. c, 55 Am. Dec. 250; Shirk's App. 3 
 Brew. (Pa.) 119; Jones v. Dunn, 3 W. & 
 S. (Pa.) log; Hawkins v. Long, 74 N. 
 Car. 781; Sloan v. Guice, 77 Ala. 3g2; 
 Rembert v. Brown, 17 Ala. 667; Petect 
 V. Crawford, 51 Miss. 43; La Trobe v. 
 Hay ward, 13 Fla. igo; Houston, etc., 
 R. Co. V. Snelling. 5g Tex. 116; Horan 
 V. Long, II Tex. 230; Bertrand v. Tay- 
 lor. 32 Ark. 470; Roberts v. Totten, 13 
 Ark. 6og; Kronenberger v. Binz, 56 Mo. 
 121; Carroll v. Paul, 16 Mo. 226; St. 
 Louis, etc., Co. v. Colorado Nat. 
 Bank, 8 Colo. 70; Branger v. Chevalier, 
 g Cal. 353; Eddie w. Eddie, 61 111. 134; 
 Gage V. Parmelee, 87 111. 32g; Kinney z/. 
 People, 3 Scam. (111.) 357; Wharton v. 
 Anderson, 28 Minn. 301; White v. 
 Campbell, 25 Mich. 463; Bankhead v. 
 Alloway, 6 Cold. (Tenn.) 56; Dickerson 
 V. Nabb, Sneed (Ky.), 320; s. c, 2 Am. 
 Dec. 725; Oil Co. V. Van Etten, 107 U. 
 S. 325; Wiggins V. Burkham,' 10 Wall. 
 {U. S.) 129; s. c , I Myer's Fed. Dec. 18; 
 Perkins v. Hart, 11 Wheat. (U. S)237; 
 Chappedelaine w. Dechenaux, 4 Cranch 
 <U. S.). 306; s. c, I Myer's Fed. Dec. 22. 
 
 What is sufficient evidence of misrep- 
 resentation to open- an account stated. 
 Upton V. Bedlow, 4 Daly (N. Y.), 216. 
 
 If the error or fraud affects all the 
 items of the account it will be opened de 
 novo. Branger v. Chevalier, 9 Cal. 353. 
 
 A written acknowledgment that an 
 account is correct, made without con- 
 sideration, will not estop a party from 
 showing that it is incorrect as against 
 parties having notice of its incorrectness 
 before acting upon it. Higham v. 
 Harris, 8 N. East. Repr. 255. 
 
 One is not precluded from showing the 
 actual state of an account because he may 
 have gratuitously stated the amount of it 
 different from what it in truth was, unless 
 some element of estoppel intervenes. 
 Higham v. Harris, 5 West. Repr. (Ind.) 
 644. 
 
 A settlement of an account between 
 parties, involving the receipt and dis- 
 bursement of moneys, will not preclude 
 a party to such settlement from afterward 
 preferring a claim for overcharges and 
 misrepresentations in respect to the sub- 
 ject-matter settled, if afterward discov- 
 ered. Anthony o. Day, 52 How. Pr. 
 (N. Y.) 35. 
 
 An account settled by bond or release 
 may be opened for fraud or collusion, or 
 where the settlement was made under 
 suspicious circumstances; but in such a 
 case the burden is upon the complainant. 
 Love V. White, 4 Hayw. (Tenn.) 21a 
 See Kelsey v. Hobby, 16 Pet. (U. S.) 
 269; Gray v. Washington, Cooke (Tenn,), 
 321. 
 
 If a person is of weak mind the court 
 will open an account stated, if it is 
 shown that an undue advantage has been 
 taken of him. Rembert v. Brown, 17 
 Ala. 667. See Compton v. Greer, 2 Dev. 
 Eq. (N. Car.) 93. 
 
 In an action upon an account stated, 
 where the answer denies the allegations 
 of the petition, and alleges affirmatively 
 that an account existed between plaintiffs 
 and defendant; that plaintiffs weie de- 
 fendant's bankers; and that they, with 
 Intent to defraud defendant, concealed 
 from him the real condition of the ac- 
 count, and failed to credit him with de- 
 posits made by him, and charged him 
 with items with which he was not charge- 
 able, held, that the allegations of fraud 
 contained in the answer were sufficient, 
 if proven, to vitiate the account stated, 
 if one existed; and that the question of 
 such fraudulent concealment should be 
 
 I C. of L. — g 
 
 125 
 
Opening the Account. 
 
 A ceo UNT ST A T.ED. 
 
 Frand — Mistake. 
 
 Where, after a settlement and adjustment of an account be- 
 t\veerf*the parties, a mistake as to one item thereof is discovered^ 
 and an action is brought to correct the mistake, this does not give 
 to the defendant a right to have the whole account opened. The 
 
 submitted to the jury with other issues 
 in the case. McKinsterz/. Hitchcock, 26 
 N. W. Repr. (Neb.) 705. 
 
 A stipulation that the settlement of 
 the accounts was "subject to the cor- 
 rection of errors and omissions which 
 may be hereafter found therein" does not 
 render it any the less a settled account, 
 and subject to all the rules applicable to 
 stated accounts. Young v. Hill, 67 N. 
 Y. 162; s. c, 23 Am. Rep. 99. 
 
 When it cannot he opened. — A mere al- 
 legation of error is not sufficient. Gil- 
 christ V. Brooklyn Grocers' Assoc, 66 
 Barb. (N. Y.) 390; 59 N. Y. 495;"For- 
 man v. Brooks, 9 Pick. (Mass.) 212. 
 
 It will not be opened for a clerical 
 error, when such error does not affect 
 the result. Wilson v Frisbie, 57 Ga. 269. 
 Nor if the plaintiff was aware when he 
 made the settlement of the facts on 
 which he bases his claim to relief. Quin- 
 lan V. Keiser, 66 Mo. 603. See Eager 
 V. Thompson, i Black. (U. S.) 80. 
 
 An account which has been closed for 
 over six years cannot be opened on the 
 ground of a recently discovered mistake. 
 Randel v. Ely, 6 Brews. (Pal) 270. 
 
 If the party has been negligent in de- 
 tecting the errors, the account will not 
 be opened. Leather Mfrs,' Bank v. 
 Morgan, 117 U. S. 96; Bruen v. Hone, 
 2 Barb. (N.Y.) 586; George z/. Jbhnson, 45 
 N. H. 456; Stearns v. Page, 7 How. (U. 
 S.I 819; Winston v. Street, 2 Patt. & H. 
 (Va.) 169; Fraser v. Hext, 2 Strob. Eq. 
 (S. Car.) 250; Gregory v. Forrester, i 
 McC. Ch. (S. Car.) 318, 332; Hutchins 
 V. Hope, 7 Gill (Md.), 119; Burke i/. 
 Isham, 53 N. Y. 631; Augsbury v. 
 Flower, 68 N. Y. 619; Dakin v. Dem- 
 ming, 6 Paige (N. Y.), 95; Ogden v. 
 Astor, 4 Sandf. Ch. (N. Y.) 311; At- 
 water v. Fowler, i Edw. Ch. (N. Y.) 
 417; Randel v. Ely, 3 Brews. Pa. 270. 
 Lapse of time is no bar to the open- 
 ing of a stated account where there 
 has been fraud, even if the party com- 
 mitting the fraud be dead. Botifeur 
 V. Weyman, i McC. Ch. (S. Car.) 156. 
 See Ogden v. Astor, 4 Sandf. Ch. (N. 
 Y.) 311. 
 
 Where the parties have acquiesced in a 
 settlement for a long period, there must 
 be clear and distinctive evidence of fraud 
 or mistake to open a stated account. 
 Augsbury v. Flower, 68 N. Y. 619. 
 Where the parties took the balance 
 
 from the books of one of them, and each 
 agreed to waive all claims against each 
 other which were not included in the 
 balance, the subsequent discovery of the 
 omission of an item which would affect 
 the balance is not ground for opening the- 
 account. Hamilton, etc., Co. v. Good- 
 rich, 6 Allen (Mass.), 191. 
 
 A settlement deliberately made, fol- 
 lowed by an agreement in writing, signed 
 and sealed by the parties, though one was 
 compelled from necessity to retire from 
 the business, and withdraw his capital, 
 and was laboring at the time under 
 financial embarrassment as well as great 
 mental anguish, will not be set aside on 
 trivial grounds. Gage v. Parmelee, 87 
 111. 329. 
 
 After a judgment, ap execution and 
 sale under a mortgage bond, the court 
 will not open the account, though there 
 be some degree of irregularity in the ac- 
 counts if from the whole they appear to 
 be fairly closed. Bloodgood v. Zeily, 
 2 Caine's Cas. (N. Y.) 124. 
 
 A stated account cannot be opened 
 for a mistake in law. Commissioners v. 
 Gherky, Wright (Ohio), 493. 
 
 Items for liquor and tobacco ex- 
 travagantly used, do not furnish ground 
 for opening an account. Iley v. Nis- 
 wanger, I McC. Ch. (S. Car.) 523. 
 
 An agent for the collection of rents, 
 rendered regular accounts, and submit- 
 ted his books for inspection; but the 
 principal, in consequence of his aversion 
 to investigating accounts, and of his great 
 confidence in the agent, signed receipts 
 in full, and settlements of the accounts 
 without examination. Held, that the ac- 
 counts would not be opened except for 
 fraud clearly proved, or for the correc- 
 tion of specific errors pointed out by 
 the plaintiff in his bill. Phillips v. Bel- 
 den, 2 Edw. Ch. (N. Y.) I. See Ogden 
 V. Astor, 4 Sandf. Ch. (N. Y.) 311. 
 
 When a creditor knowingly signs a 
 statement acknowledging the satisfaction 
 of a claim recited in it, he cannot after- 
 wards maintain an action upon that 
 claim against his debtor upon the ground 
 of mistakes in the account, without first 
 notifying him of those mistakes, and 
 requiring correction. Roach v. Gilmer, 
 3 Utah, 389. 
 
 A, being surveyor to trustees of a 
 turnpike road, delivered annual ac- 
 counts, in which the real expendituie 
 136 
 
Opening the Acconnt. 
 
 A ceo UNT ST A TED. 
 
 Fraud— Mistake. 
 
 mistake may be corrected and the righit of the parties readjusted 
 in regard thereto ; but in other respects defendant is bound by the 
 account, actually settled, unless he can show some mistake or 
 fraud in the settlement in respect to other items.^ 
 
 was understated. These accounts were 
 believed by the trustees to be correct, as 
 A intended, and they were acted upon 
 on that assumption. There was no act- 
 ual fraud by A, his object being to make 
 the apparent expenditure as light as 
 possible, and to avoid complaints from 
 the trustees. Eventually the omitted 
 items were brought into one account on 
 the discovery of their omission by the 
 trustees, who, however, refused to pay 
 the same. A having brought an action, 
 held, that he could not recover, on the 
 ground that a man shall not be allowed 
 to affirm at one time and deny at another, 
 making a claim on those whom he has 
 deluded to their disadvantage, and found- 
 ing that claim on the very matters of the 
 delusion. Cave v. Mills, 7 H. & N. 913. 
 
 A mere threat to sue upon a claim, 
 and to arrest the person against whom it 
 is made In such suit, or by virtue of an 
 execution which may be issued upon a 
 judgment obtained therein, is not such 
 duress as will avoid a promise to pay the 
 claim, induced by the threat. Dunham 
 V. Griswold, 100 N. Y. 224. See Du- 
 ress. 
 
 Pleadings. — The pleadings should set 
 forth the items of the mistake or fraud 
 and distinctly allege that auch items 
 were omitted or< fraudulent. Story's 
 Eq. Juris. §§ 523, 527; Thelkeld w. Dob- 
 bins, 45 Ga. 144; Langdon v. Roane, 
 6 Ala. 518; s. c, 41 Am. Dec. 60; 
 Walker -u. Driver, 7 Ala. 683; Kron- 
 enberger v. Binz, 56 Mo. 121; Bad- 
 ger V. Badger, 2 Cliff. (U. S.) 137; Red- 
 man V. Green, 3 Ired. Eq. (N. Car.) 54; 
 Pratt V. Weyman, i McC. Ch. (S. Car.) 
 156; Horan v. Long, il Tex. 230; Bul- 
 lock V. Boyd, I Hoffm. Ch. (N. Y.) 294; 
 Nourse v. Prime. 7 Johns. Ch. (N. Y.) 
 69; Young V. Hill, 67 N. Y. 162; s. c, 
 23 Am. Rep. 99; Towsley z*. Denison, 45 
 Barb. (N. Y.) 490. See Hampton v. 
 Michael, 6 Gratt. (Va.) 151; Glenn v. 
 Salter, 50 Ga. 170; Champion v. Joslyn, 
 44 N. Y. 653; Bright z*. Coffman, 15 Ind. 
 
 371. 
 
 The particular act of fraud, misrepre- 
 sentation, or concealment must be stated 
 distinctly, also how, when, and in what 
 manner it was perpetrated. The charges 
 must be definite and reasonably certain, 
 capable of proof and clearly proved. If 
 a mistake is alleged, it must be stated 
 with precision and made apparent, so 
 
 that the court may rectify it, with a feel- 
 ing of certainty that they are not com- 
 mitting another and perhaps greater mis- 
 take, and especially must there be 
 distinct averments as to the time when 
 the fraud, mistake, concealment, or mis- 
 representation was discovered, and what 
 the discovery is, so that the court may* 
 clearly see whether by the exercise of 
 ordinary diligence the discovery might 
 not have been before made. Stearns v. 
 Page, 7 How. (U. S.) 819; s. c, B'k 12, 
 L. C. P. 928; I Myer's Fed. Dec. 26, 
 § 30; Chubbuck w. Vernam, 42 N. Y. 
 
 432. 
 
 A plaintiff cannot impeach an account 
 stated, set up by the defendant, unless 
 he has alleged the error or mistake 
 therein in his pleadings; and when that 
 defence is set up to a general bill for an 
 account, \lis prima facie a bar to the suit 
 until specific errors therein are assigned, 
 and he must, therefore, amend his bill so 
 as to set them up. 
 
 An account stated or settled is a mere 
 admission that the account is correct. It 
 is not an estoppel, but is still open to im- 
 peachment for mistakes and errors. Its 
 effect is to establish, prima facie, the ac- 
 curacy of the items without proof, and 
 the party seeking to impeach it is bound 
 to show authoritatively the mistake or 
 error alleged. Barker v. Hoff, 52 How. 
 Pr. (N. Y.) 382. 
 
 Where an account is stated, including 
 a usurious transaction, and the balance 
 assigned, the assignee cannot set up the 
 usury, to defeat an item included in the 
 account ; it is a defence personal to the 
 borrower. BuUard v. Raynor, 30 N. Y. 
 197. 
 
 1. Carpenter v. lient, loi N. V. 591; 
 Consequa v. Fanning, 3 Johns. Ch. {N. 
 Y.) 587; s. c, 17 Johns. (N. Y.) 511; 
 Paulling V. Creagh, 54 Ala. 646; Bank- 
 head V. Alloway, 6 Coldw. (Tenn.) 56; 
 Higginson v. Fabre, 3 Dessau (S. Car.), 
 89. 
 
 Where an error occurs by the omission 
 to include axertain sum, such error may 
 be corrected, and the sum collected. 
 McDougall V. Cooper, 31 N. Y. 498. 
 
 Wliere a party has his pass-book writ- 
 ten up by a bank, he cannot, after a 
 considerable lapse of time, open the set- 
 tlement to recover unlawful interest 
 charged him. Peddicord j. Connard, 85 
 111. 102. See Radcliffe </. Wightman, i 
 
 127 
 
ACCOUNT STATED— ACCOUNT RENDER. 
 
 18, Surcharging — Falsifying. — Where the mistake, or omission, or 
 fnaccuracy, or fraud, or imposition is not shown to affect or stain 
 all the items of the transaction, the court will allow the account to 
 stand with liberty to the plaintiff to surcharge or falsify it ; the 
 effect of which is to leave the account in full force and vigor as a 
 stated account, except so far as it can be impugned by the oppos- . 
 ing party.i 
 
 ACCOUNT RENDER. 
 
 1. Definition. 
 
 2. History, in England and 
 
 the United States. 
 
 3. When Account lies, and on 
 
 what Demands. 
 
 4. Process. 
 5- Defence, 
 
 6. Arbitration. 
 
 7. Judgment quod computet. 
 
 8. Auditors. 
 
 9. Final Judgment, 
 
 10. Error and Execution. 
 
 1 1 . Account Render as it exists 
 
 in the United States. 
 
 1. Definition. — Account is a writ or action brought against a 
 person who, by means of his office as a guardian, or for some 
 business he has undertaken as an agent, or some money he has 
 received for another, ought to render an account to him, and re- 
 fuses to do it; and he that calls him to an account shall recover of 
 him not only what shall be found due, but damages also for the 
 wrong done him.** 
 
 2. History. — Account is a very ancient common-law writ, now 
 nearly obsolete, the object of which was to compel parties to 
 render a true statement of monetary transactions which had arisen 
 between them. In England for many years recourse has usually 
 been had to courts of equity, as those courts extended their 
 remedy to many cases of implied and constructive trusts, as well 
 as to matters of fraudulent contrivance and tortious misconduct, 
 which the action at common law could never have 'reached.* A 
 full account of the action and its process maybe found in Bacon's 
 Abr., " Account," where the difficulties attending the common-law 
 action are set forth more at large. The reproaches cast upon it 
 would not seem, however, to be altogether well founded, as will 
 
 McC. Ch. (S. Car.^ 408; Bullard v. Ray- 
 nor, 30 N. Y. 197. Compare Bullock v. 
 Boyd, Hoffm. Ch. (N. Y.) 294; Barrow 
 V. Rhinelander, i Johns. Ch. (N. Y.) 550. 
 
 1. I Story's Eq. Juris. (13th Ed.) §523. 
 See Cover v. Hall, 3 Har. & J. (Md.) 43; 
 Brown v. Vandyke, 4 Hals'd Eq. (N. J.) 
 795; s. c. 5S Am. Dec. 250; Bullock v. 
 Boyd, I Hoiflm. Ch. (N. Y.) 294; Bruen 
 V. Hone, 2 Barb. (N. Y.) 586; Philips v. 
 Belden, 2 Edw. Ch. (N. Y.) i. 
 
 Surcharging applies to the balance of 
 the whole account, and supposes credits 
 omitted which ought to be allowed. Fal- 
 sification applies to some items of the 
 debits, supposing it to be wholly false or 
 in part erroneous. Bruen v. Hone, 2 
 Barb. (N. Y.) 586. 
 
 Where the plaintiff Opens a stated ac- 
 
 count, and falsifies certain charges in it, 
 the defendant may open it also, and cor- 
 rect a mistake in the rate of interest. 
 Higginson v. Fabre, 3 Dessau (S. Car.), 
 89. See Floyd v. Priester, 8 Rich. Eq. 
 (S. Car.) 248. 
 
 The account may be falsified by show- 
 ing that a wrong charge was included in 
 it. Young ». Hill, 67 N. Y. 162; =. t., 
 23 Am. Rep. 99. 
 
 Authorities for Account. — Story's Equi- 
 ty Jurisprudence; Parsons on Contracts; 
 Wharton on Contracts; Chitty on Con- 
 tracts, nth Am. Ed. ; Greenleaf on Evi- 
 dence; Abbott'sTrial Evidence. 
 
 2. Imp. M. PI. 143; Troubat & Haly's 
 Pr. (5th Edit.) vol. ii. p. 138. 
 
 3. Wharton's Law Lexicon (7th Edit.), 
 "Account." 
 
 128 
 
History. ACCOUNT RENDER. When Account Lies. 
 
 appear from an examination of the case of Godfrey v. Saunders,* 
 where, after a bill for an account had been fruitlessly pending in 
 chancery for more than twelve years, it was finally determined in 
 this form of action in the course of two years. By the judicature 
 Act 1873, sec. 34 (3), all causes and matters for the taking of part- 
 nership or other accounts have been assigned to the Chancery 
 Division of the High Court of Justice. 
 
 In most of the States of the United States, the right to the 
 common-law action exists, and in some it has been rendered very 
 effective by certain statutory enactments ; but inasmuch as dis- 
 covery is the main object sought by the action, to enable the 
 plaintiff to give evidence of his right, and that can be more 
 readily obtained and questions in dispute more readily settled in 
 equity, resort is generally had to that jurisdiction in those States 
 where a separate tribunal exists. In New York the action of ac- 
 count has fallen into disuse, the remedy there adopted being by 
 bill in chancery.** In Massachusetts, the courts having power to 
 appoint auditors, assumpsit has been substituted.^ In Pennsyl- 
 vania the jury are authorized by statute * to settle the accounts 
 and find the sum actually due to the plaintiff or defendant. Under 
 the authority of the compulsory arbitration laws, cases of account 
 render may be referred to arbitrators, who are " to determine on 
 the whole merits of the cause, and report the balance due by either 
 party to the other." 
 
 3. When Account lies. — By the common law, account lay only 
 against a guardian in soccage, bailiff, or receiver, or by one in favor 
 of trade and commerce against another wherein both were named 
 merchants ; that is to say, against all who had charge or possession 
 of the lands, goods, chattels, or moneys of another with a liability 
 to render an account thereof, such as partners, trustees, guardians, 
 and all who could be specially described as above. It was the 
 proper form of action between partners, one of whom cannot 
 bring assumpsit against the other unless there be ap account set- 
 tled between them, and a balance struck.^ As the action lies only 
 on the ground that money, or its equivalent, has come to the 
 hands of the defendant, to be accounted for, it cannot be main- 
 tained against a dormant partner who has received nothing, and 
 has therefore no account to render ;* nor will account lie against 
 an active partner unless it can be shown that money of the firm 
 has come into his hands.'' It is said that at common law it only 
 lies between two merchants ; not where the partnership consists 
 of a larger number.** When there are two defendants tlie 
 
 1. 3 Wils. 94. Moravia v. Levy, cited in 2 T. Rep. 483; 
 
 3. Duncan v. Lyon, 3 Johns. Ch. (N. Andrews v. Allen, 9 S. & R. (Pa.) 241. 
 Y.) 351. 6. Spear v. Newell, 2 Paine (U. S.), 
 
 3. Fanning u. Chadwick, 3 Pick. 267. 
 
 (Mass.) 420, 424. 7, Demmy v. Dougherty, i Pears. (Pa.) 
 
 4. Act 4th April, 1831, P. L. 492; 236. 
 
 Purdon. 54. 8. Beach v. Hctchkiss, 2 Conn. 425; 
 
 6. Foster z: Allenson, 2 T. Rep. 479; Appleby v. Brown, 24 N. Y. 143. But 
 
 129 
 
When Account Lies. ACCO UNT RENDER. when Account lies. 
 
 plaintiff must show a joint liability.* The action also lay against 
 an attorney-at-law for money received for his client;* by a 
 landlord against a'tenant, under a lease in which the rent was a 
 share of the profits ; between principal and factor; and, generally, 
 wherever one person has received money as the agent of 
 another.^ 
 
 By various statutes passed in England, the last being 4 Anne, 
 ch. 16, sec. 27, the right of action, heretofore limited to the par- 
 ties to the contract, on the ground of privity between them, was 
 given to executors, executors of executors, and to administrators ; 
 and was allowed to be maintained against the executors and ad- 
 ministrators of every guardian, bailiff, and receiver, and also by 
 one joint tenant and tenant in common, his executors and admin- 
 istrators, against the other, as bailiff, for receiving more than his 
 just share and proportion ; and against his executors and admin- 
 istrators. The action therefore now lies not only against all who 
 can be charged as bailiff or receiver, but also against their per- 
 sonal representatives, and against joint tenants, or tenants in com- 
 mon without any actual appointment as bailiff or receiver. These 
 statutes have become either part of the common law in the United 
 States, or their substance for the most part has been incorporated 
 into various statutes. There is this difference between the liabil- 
 ity of a bailiff and receiver, for a bailiff is entitled to a just allow- 
 ance for his charges and expenses; but this distinction does not 
 apply to partners, for one partner, even though charged as receiver, 
 is entitled to every just allowance against the other.* Though an 
 infant may be an executor, or may be charged in trover, being a 
 tort, he is not liable if he be made factor, bailiff, or receiver, for 
 what he does during his infancy, either in law or in equity, for the 
 same reason that other acts of his bind him not.^ So also an ex- 
 ecutor who makes a profit of the estate of his testator is not, for 
 this reason, liable to an action of account render, for it is a tort;® 
 nor does such an action lie by a legatee against an executor.'' 
 
 4. On what Demands Account lies. — Account lies only for a thing 
 uncertain, arising out of a contract, express or implied, but not 
 for any tort or certain debt. It will not, therefore, lie to recover 
 mesne profits?' Nor for rent reserved on a lease ; nor against a 
 lessee or bailee of goods who wastes them, or who refuses to 
 deliver them. 
 
 see Whelen v. Watmough, 15 S. & R. 6. Anon, i Hayw. (N. Car.) 226; 
 
 (Pa.) 153; Portsmouth v. Donaldson, 32 Conklin v. Bush, 8 Pa. St. 514. 
 
 Pa. St. 202. 1. Eaves v. Eaves, Mart. (La.) 45. In 
 
 1. Griffith z/. Willing, 3 Binn. (Pa.), 317. Pennsylvania this action is expressly 
 
 2. Bredin v, Kingland, 4 Watts (Pa.), allowed against an executor for the re- 
 420. covery of a legacy. 24th Feb., 1834, P. 
 
 3. Long V. Fitzsimmons. I W. & S. L. 83; Purdon, 54. So, also, Vermont 
 (Pa.) 530; Shriver w. Nimmick, 41 Pa. St. and Connecticut to residuary legatees, 
 gi ; Harrington v. Deane, Hob. 36. See Rev. Stat, of Conn. 1875, p. 467, and 
 
 4. James v. Browne, I Dall. (U. S.) Vermont Rev. St. of 1880. 
 
 340. 8. Harker v. Whitaker, 5 Watts (Pa.), 
 
 6. Co. Litt. 172. 474- 
 
 130 
 
Arocess — Defence, ACCOUNT RENDER. Judgment — Anditors, 
 
 5. Process. — The process in account render issues upon a 
 prcBcipe, and the writ is in thp usual form of personal actions. 
 Where imprisonment for debt is abolished bail is not demandable. 
 If no appearance is entered, the plaintiff may take judgment 
 •quod computet, by default, which is, however, interlocutory only.^ 
 The declaration must charge the defendant, in a proper manner,'-* 
 as bailiff, receiver, or guardian, for there is a difference as to the 
 liability of the defendant in this respect.^ Where the defendant 
 is charged as receiver the rule is imperative that the plaintiff shall 
 set forth by whose hands the money was received ; and if he be 
 charged as bailiff, the declaration must describe the goods of 
 which he had the care and management.* Defects in the declara- 
 tion must be taken advantage of on demurrer, or they will be 
 cured by final judgment. The authorities on this head are col- 
 lected in I Vin. Abr., " Account," F. pi. 9, margin. A variance 
 between the declaration and evidence was fatal, but it is now 
 amendable even at the trial.'' 
 
 6. Defence. — The pleas in defence are ne ungues bailiff or 
 recewer, pleiie computavit (fully accounted), or a release, or non- 
 age or payment ; and these pleas may be joined. Pleas in bar to 
 the right of action must be so pleaded, and cannot afterwards 
 be pleaded before the auditors ;® but, except in case of a release 
 ■ox plena computavit, if the defendant be once chargeable, he cannot 
 plead in bar, but must plead before auditors.' 
 
 7. Arbitration. — Under the compulsory arbitration laws of 
 Pennsylvania, the arbitrators appointed by virtue thereof have 
 power to determine the whole merits of the cause, and to frame 
 an account from which they deduce their award. 
 
 8. Judgment quod computet. — In the action of account there are 
 two judgments. The first is that the defendant do account ; for 
 which purpose the court assigns auditors to take and declare the 
 account between the parties. This judgment is interlocutory 
 only, and a writ of error does not lie thereon.* Though if the 
 defendant has pleaded in bar, and the bar is adjudged good, the 
 plaintiff may have a writ of error, for this judgment is final until 
 Teversed.* 
 
 9. Auditors. — In Pennsylvania the act of 4th of April, 1831, i" pro- 
 vides that the jury, in an action of account render, shall have full 
 power to settle the accounts between the parties, and find in favor 
 of the plaintiff, or one or more of the defendants, such sum or sums 
 as shall appear to be due. When this course is adopted a formal 
 
 1. Kitchen v. Strawbridge, 4 Wash. 4, McMurray v. Rawson, 3 Hill (N. 
 €. C. (Pa.) 841. Y.), 59. 
 
 2. Hughes V. Worsley, 15 Miss. 5. McAdamz/. Orr, 4 W. & S. (Pa.) 550. 
 492; McKay v. Brown, 13 Vt. 593; 6. Lee v. Abraras, 12 III. iii; Kelly 
 Smith V. Smith, 2 , Root (Conn.). 42; v. Kelly, 3 Barb. (N. Y.) 419. 
 
 . Barnum v. Landon, 25 Conn. 137; Wil- 7. Morgans. Adanis, 37 Vt. 233. 
 
 son «/. Wilson, 2 South. (N. J.) 791; 8. Beitter z/.Zeigler.l P.& W.(Pa.) 135. 
 
 Wright ». Guy, 10 S. & R. (Pa.) 227. 9. i Vin. Abr., " Account," U. pi. 22, 
 
 3. Troubat & Haly's Pr. (5th Edit.) vol. margin. 
 
 41. sec. i6go, 10. P. L. 492; Purdon, 54. 
 
 131 
 
Auditors. ACCOUNT RENDER. Auditors. 
 
 judgment quod computet is not necessary. Where, however, this 
 course is not allowable, and the court, on motion of the plaintiff, 
 has assigned auditors, the proceedings before them are in the 
 nature of a new action, and the defendant is put to plead whatever 
 matter discharges him from liability to the plaintiff, in consequence 
 of not having accounted with him as he ought. As has already 
 been said, what might have been pleaded in bar to the action shall 
 not be allowed as a discharge before the auditors ; nor can any- 
 thing be pleaded before the auditors contrary to what has been 
 previously pleaded and found by verdict. ^ The judgment quod 
 computet settles conclusively the liability of the defendant to 
 account, but it does not prevent him from demanding an issue 
 upon each and every item with which the plaintiff seeks to charge 
 him in account. The auditors may make the proper charges and 
 allow the proper credits without regard to the judgment to 
 account, for it is not to be inferred from this judgment that the 
 defendant has received all the precise sums and at the precise 
 times mentioned in the declaration."'* If the matters offered by 
 the defendant before the auditors are disputed by the plaintiff^ 
 he may demur or take issue. These demurrers or issues are certi- 
 fied by the auditors to the court, where the matter of law is 
 decided by the court, and of fact by a jury; which being returned 
 to the auditors, they report an account accordingly.^ If either 
 party has cause of complaint against the auditors, redr.ess is to be 
 had by application to the court. And in all cases of dispute 
 before auditors the exception must be taken before them, and cer- 
 tified as above in the shape of an issue for trial ; it is too late to 
 file exceptions to the report after it has been returned.* The 
 auditors must examine all articles of account, though incurred 
 since the writ, and the whole must be brought down to the time 
 
 1. Sutton V. Adam?, 45 Pa. St. 67; by the auditors to the court, and then 
 Bishop o. Eagle, 10 Mod. 22; Geoffry the matters of law will be decided by the 
 V. Saunders, 3 Wils. 113, 114; Spear court and the issues in fact by a jury, 
 V. Newell, 2 Paine (U. S), 267; Spencer after which the account will be finally 
 V. Usher, 2 Day (Conn.), 116; Cro. Car. settled by the auditors, according to the 
 116; Porter v. Wheeler, 37 Vt. 281; results of the trial. If either party de- 
 Baxter V. Thompson, 26 Vt. ,559; Day sires an issue and the auditors refuse 
 V. Lockwood, 24 Conn, 185. permission, the court will set the matter 
 
 3. Newbold v-. Sims, 2 S. & R. (Pa.) to rights. So, if the auditors conduct 
 
 317. themselves with any manner of impro- 
 
 3. Crousillat v. McCall, 5 Binn. (Pa.) priety, to the injury of either party, re- 
 
 433; Miller w. Anspach, cited in Troubat dress may be had on application to the 
 
 & Haly's Practice (5th Edit.), vol. ii. court. The exceptant does not allege 
 
 § 1705, note. Per curiam. — The practice that he put in his plea before the audi- 
 
 in this action has been long well settled, tors, and claimed an issue thereon; the 
 
 and has been recognized, in Pennsyl- exception now filed is, in fact, the claim, 
 
 vania, in the case of Crousillat v. Mc- of an issue. It is too late, therefore j 
 
 Call, 5 Binn. (Pa.) 433. and it would introduce irregularity and 
 
 If the matters offered by either party confusion into the proceedings of an ac- 
 
 are disputed by the other, he may either tion already sufficiently complicated to 
 
 demur or take issue before the auditors, allow it. The court must, therefore,. 
 
 If there are more points of dispute than treat the exception as a mere nullity, 
 one, there may be a demurrer, or an 4. Snyder w. Castor,4Yeates (Pa.), 358; 
 
 issue on each, which are to be certified Crousillat v. McCall, 5 Binn. (Pa.) 433. 
 
 133 
 
Final Judgment, ACCO UNT RENDER. Error and Execution. 
 
 when the auditors' make an end of their account.^ It is the 
 province of the auditors to weigh the evidence, and investigate 
 the facts and determine thereon, and a report will not be, set 
 aside for a mistake of fact.** The report must be a special one, 
 and not merely an award of a balance. * 
 
 10. Final Judgment.— If the report certify that the defendant 
 refused to account, judgment shall be that the plaintiff recover 
 according to the value mentioned in the declaration.* If it 
 contain an account in favor of the plaintiff, the judgment is that 
 the plaintiff do recover against the defendant so much as he (the 
 defendant) is found in arrears. ** The judgment carries costs ;* and 
 where the defendant has resisted the plaintiff's claim by pleading, 
 there shall be a judgment for damages.'' The plaintiff may have 
 judgment for a greater amount than the damages laid in the dec- 
 laration.* The auditors may report a balance in favor of the 
 defendant,* but it is doubtful whether judgment can be entered 
 on such a report.*" 
 
 11. Error and Execution. — To the final judgment a writ of error 
 lies ; but although it be found erroneous and reversed, the first 
 judgment will stand in force, for the two judgments are distinct 
 and perfect. If on error, after the last judgment, the first is re- 
 versed, the last is consequently reversed also.*^* 
 
 This action is the first of a civil nature to which process of 
 execution against the person was given, and in which the action 
 of debt was given against the jailer who let any one escape com- 
 mitted to prison for arrearages of account found by auditors.*** 
 This right is, of course, lost where imprisonment for debt is 
 abolished. The other. executions in this action are the same as in 
 all the personal civil actions. 
 
 12. Account Render as it exists in the United States. — Although 
 in those States which have independent courts of chancery a bill 
 in equity has generally superseded the old common-law action of 
 account, there are many States in which this action still exists, 
 and in which it has been brought at various times, as Connecti- 
 cut, Illinois, Maine, Maryland, Massachusetts, Mississippi, New 
 York, Pennsylvania, Rhode Island, Vermont.** It is also an avaiU 
 
 1. Robinson v. Bland, 2 Burr. io86; 8. Gratz v. Phillips, 5 Binn. (Pa.) 568. 
 Cousher v. Tulam, 4 Wash. C. C. (Pa.) 9. Dickerson v. Whiltlesay, 2 Root 
 442. (Conn.), 121. 
 
 2. Parker v. Avery, Kirby (Conn.), 10. McCall v. Crousillat, 3 S. & R. 
 353; Wood V. Barney, 2 Vt. 369. • (Pa.) 7. 
 
 8. Shewell v. Fell, 4 Yeates (Pa.), 51: 11. i Vin. Abr. ; "Account," pi. 22. 
 
 Willson V. Willson, 2 South. (N. J.) 791: 12. Statute Westm. 2, 13 Edw. I. c. 11. 
 
 Finney v. Harbeson, 4 Yeates (Pa.), 514; 13. Barnum v. Landon, 25 Conn. 137; 
 
 Spencer v. Usher, 2 Day (Conn.), 116; Spalding v. Day, 37 Conn. 428; Day v. 
 
 Thomas w. Alsop, 2 Root (Conn.), 12. Lockwood, 24 Conn. 185; Usher u. 
 
 4. Williams v. White, Cro. Eliz. 806; Spencer, 2 Day (Conn.), 120; Starkey v. 
 Pierce v. Clark, Lulw. 63. Peters, 18 Conn. 181; Smith v. Brush, ir 
 
 5. I Selw. N. P. 5. Conn. 159; Pond w. Pond, 2Root(Conn.), 
 
 6. Harrison v. Warner, 3 Luz. L. Reg. 41; Smith v. Smith, 2 Root (Conn.), 42; 
 225. Smith V Chapman, 5 Conn. 14; Lacon v. 
 
 7. Gratz v. Phillips, 5 Binn. (Pa.) 568. Davenport, 16 Conn. 341; Mantz v. Col- 
 
 133 
 
As it exists. 
 
 ACCOUNT RENDER. 
 
 in the IT. S. 
 
 able action in the United States courts.^ In 1818 in New York, 
 Chancellor Kent, sitting in Equity, declared, in the case of Duncan 
 •V. Lyon,** that " courts of law and equity have concurrent juris- 
 diction in matters of account, and it is conceded that an action of 
 account at law may be brought by one partner against another ;" 
 but in 1843 the Supreme Court said that the action had become 
 obsolete.^ Since which time the action seems to have been brought 
 only four times.* It is recognized by the statute law.^ In Con- 
 necticut the action of account at common law has been allowed in 
 several cases,* even against three defendants where the action is 
 -against them jointly, notwithstanding the statute'' that an action 
 instituted against two or more defendants to compel them to 
 render an account shall be by bill in equity, it being held that 
 that statute has reference to cases where the defendants are sued 
 to answer severally.^ It also lies before a justice of the peace,' 
 
 lins, 4 H. & McH. (Md.) 65; Gibbs o. 
 Claggett, 2 Gill & J. (Md.) 14; Green v. 
 Johnson, 3 Gill & J. (Md.) 389; Sargent 
 V. Parsons, 12 Mass. 149; Fowle 11. 
 Kirkland, iS Pick. (Mass.) 299. The 
 action of account render has been abol- 
 islied in Massachusetts. Rev. Stats, c. 
 118, § 43; Appleby v. Brown, 24 N. Y. 
 143; Bredin v. Deven, 2 Watts (Pa.), 95; 
 Bredin v. Kingland, \ Watts (Pa.), 420; 
 Long V. Fitzsimmons, i W. & S. (Pa.) 
 530; Griffith V. Willing, 3 Binney (Pa.), 
 317; Irvine v. Hanlin, 10 S. & R. (Pa.) 
 220; Dennison v. Goehring. 7 Pa. St. 
 175; Perch V. Quiggle, 57 Pa. St. 247; 
 Dureya v. Witcomb, 31 Vt. 395; Hyde- 
 ville Co. V. Barnes, 37 Vt. 588; Foster j;. 
 Ives, 53 Vt. 458. The action of account 
 has been established by statute in Ver- 
 mont. Revised Laws, 1880, §§ 1202-1217; 
 Lee V. Abrams, 12 111. in; Crow v. 
 Mark, 52 111. 332; Hunt v. Gorden, 52 
 Miss. 194; Knowles v. Harris, 5 R. I. 
 402; Closson V. Means, 40 Me. 337; 
 Gratz V. Phillips, 3 Binn. (Pa.) 474; 
 Smith V. Woods, 3 Vt. 485; McPherson 
 V. McPherson, 11 Ired. (N. Car.) 391; 
 Hale V. Hale, 3 Day (Conn.), 377. 
 
 1, Jordan w. Wilkins, 2 Wash. C. C. 
 482; Cousher v. Tulam, 4 Wash. C. C. 
 442; Spear !>. Newell, 2 Paine (U. S.), 268; 
 Travers v. Dyer, 16 Blatchf. C. C. 178. 
 
 2, 3 Johns. Ch. (N. Y.) 351. 
 
 3, The words of the court (Bronson, 
 J.) are as follows: " In this State it does 
 not appear that more than one action 
 of account was ever brought before — 
 Jacobs V. Fountain, 19 Wend. 121 — and 
 the present experiment will probably be 
 the last. In England the action seems 
 not to have been brought more than a 
 dozen times within the last two centu- 
 ries, and i^ most of the cases the diffi- 
 culty has been about the form of the 
 
 remedy rather than the rights of the 
 parties. One of the last cases which I 
 have noticed in the English books was 
 brought in 1768 and ended in 1770 — God- 
 frey V. Saunders, 3 Wils. 73. But it is 
 worthy of remark that the account was 
 never taken. The case was decided on 
 demurrer to a plea before the auditors. 
 Ch. J. Wilmot said he was glad to see the 
 action revived, but at the same time told 
 the counsel the court was in ' some doubt 
 how the judgment must be entered and 
 about the damages,' and he recommended 
 expedition, as the plaintiff was very old 
 and the cause had been depending (in 
 chancery and at law) fourteen years, and 
 it was high time it should be ended. . . . 
 There have been three cases since that 
 time. ... In some of the States the ac- 
 tion is in use in a modified form, to sup- _ 
 ply the defect in their system from the 
 want of a court of equity. . In this State 
 there is no such reason for attempting to 
 revive and remould a remedy which was 
 always difficult and has now become 
 obsolete." McMurray v. Rawson, 3 
 Hill (N. Y.), 59. 
 
 4. Kelly v. Kelly, 3 Barb. (N. Y.) 
 di9; Woolever v. Knapp. 18 Barb. (N.Y.) 
 265; Hall V. Fisher, 20 Barb. (N.Y.) 441; 
 Appleby v. Brown. 24 N. Y. 143. 
 
 5. I N. Y. Rev. S. 750, §9:2 ibid. 385, 
 §49- 
 
 6. Mumford v. Avery, Kirby (Conn.), 
 163; Wetmore v. Woodbridge, Kirby 
 (Conn.), 164: Griggs v. Dodge, 2 Day 
 (Conn.), 28; Smiths. Chapman, 5 Conn. 
 14; Oveatt V. Sage. 7 Conn. 95; Lacon 
 V. Davenport, 16 Conn. 331; Barnum v. 
 Landon, 25 Conn. 137. 
 
 7. Rev. Stat. 478. 
 
 8. Barnum v. Landon, 25 Conn. 137. 
 
 9. Rev. Stat. 1875, title 19. ch. 17, §3; 
 Bulkly V. Lewis, I Root (Conn.), 217. 
 
 134 
 
ACCOUNT RENl)ER— ACCOUNTABLE. 
 
 and by residuary legatees against executors.^ The jurisdiction of 
 equity is concurrent.'-* In Massachusetts, where the action origi- 
 nalh' lay,3 it has been aboHshed.* In Maine the action has been 
 expressly sanctioned by statute.^ 
 
 The States in which the action of account render appears to be 
 most in use are Connecticut, Vermont, and Pennsylvania, — in 
 Vermont under a statute,® and in Connecticut and Pennsylvania 
 at common law. In the last two States certain statutes have been 
 passed which render this action more effective and less dilatory. 
 In every case, however, the old common-law process is preserved, 
 and the statutory modifications have extended the right of action, 
 or have altered the rules of evidence or pleading only; except in 
 Pennsylvania, where the rjght has been given to the jury to settle 
 the account and find a final judgment, without the necessity of 
 appointing auditors.'^ The reports of Vermont abound with cases 
 which may be found cited in the Revised Statutes of 1880, page 
 277, -etc. The only modification that need be noticed is the right 
 of the defendant to plead before the auditors any plea in bar, just 
 as if no judgment quod computet had been rendered.* In Connect- 
 icut the most important change is that jurisdiction is given to 
 justices of the peace. ^ 
 
 ACCOUNTABLE.-^A party has a reasonable ground to expect 
 upon receiving notes indorsed by the payee's name, followed by 
 the word " accountable," that said payee would be " subject to 
 pay," " responsible," or " liable for," or make good the amount of 
 said' notes as soon as they became due and payable, without sub- 
 jection to a previous demand upon the makers.*** A provision 
 making an ofificer " accountable to" another may imply authority 
 to remove him.** 
 
 ACCOUNTABLE RECEIPT. — An accountable receipt is an instru- 
 ment acknowledging the receipt of money or personal property, 
 coupled with an obligation to account for or pay or deliver the 
 whole or some part of it to some person. *** 
 
 1. Rev, Stat. 1875, title ig, ch. 17, §4. 11. McPhillips v. McPhillips, 9 R. I. 
 
 2. Ibid. ch. 4, § 6. , 536. 
 
 3. Fowle V. Kirkland, 18 Pick. (Mass.) 12. State v. Riebe, 27 Minn. 315. 
 , 299. " Boston, Aug. 15, 1868. Received of 
 
 4. R. S. c. 118, § 43. Wm. J. Dale, Surgeon-General of Mass., 
 
 5. R. S. c. 115. § 57. my discharge and check, No. 6979 for 
 
 6. Rev. St. 1880, §§ 1202-1217. $100. George P. Gill. Witness, Frederick 
 
 7. Act 4th April, 1831, P. L. 492;, P. Cutting." This, not acknowledging 
 Purdori, 54. that anything has been received to be ac- 
 
 8. Vermont Rev. St. 1880. § 1205. counted for, is not an accountable receipt 
 
 9. Conn. R. St. 1875, title 19, ch. 17, §3. within a statute making an accountable 
 
 10. Furber v. Caverly, 42 N. H. 74. receipt for money, goods, or other prop- 
 A bequest of personal estate declaring erty a subject of forgery, and is fatal to 
 
 t'hat legatee shall not be accountable for an indictment for forgery as of an ac- 
 
 depreciation of farming implements and countable receipt. Commonwealth v. 
 
 stock, with a devise over of the residence, Lawless, loi Mass. 32. See State v. 
 
 held 10 give an absolute title in the farm- Wheeler, 19 Minn. ^8; R. v. West, 2 C. 
 
 ing implements and stock. Breton v. & K. 496. See Acq'uittance. 
 Mockett, 9 Ch. Div. 95. 
 
 135 
 
Definition. ACCOUNT-BOOKS— ACCRETION. In whom Title vests. 
 
 ACCOUNT-BOOKS. See BOOKS AS Evidence. 
 
 ACCRETION— ALLUVION— AVULSION— RELICTION. See AC- 
 CESSION ; Boundaries ; Riparian Rights ; Salvage; Waters. 
 
 1. Definition. 
 
 2. In whom Title vests. 
 
 3. Must be Slow to vest Title 
 
 in Riparian owner. 
 
 4. Reliction. 
 
 Rivers and Streams. 
 Islands formed by Accretion. 
 Seaweed. 
 Stranded Property. 
 
 1. Definition. — Accretion is the increase of real estate by the ad- 
 dition of portions of soil by gradual deposition through the oper- 
 ation of natural causes to that already in possession of the owner. 
 The term " alluvion" is applied to the deposit itself, while accre- 
 tion rather denotes the act.* 
 
 2. In whom Title vests. — All lands gained from the sea by alluvion, 
 where the gain is by small and imperceptible degrees, shall go 
 to the owners of the land adjoining.* 
 
 1. 3 Washb. on Real Prop. 451; Bou- 
 vier's Lavy Diet., title "Accretion." 
 
 2. 2 Blacks. Com. 262; Middleton u. 
 Pritchard, 3 Scam. (111.) 510; Hagan v. 
 Campbell, 8 Port. (Ala.) 9; s. c, 33 Am. 
 Dec. 267; Camden & Atlantic Land Co. 
 V. Lippincott, 45 N. J. L. 405; Mulry u. 
 Norton, 100 N. Y. 424; East Hampton 
 V. Kirk, 84 N. Y. 218; Lammers v. 
 Nissen. 4 Neb. 250. 
 
 The principle that accretion by alluvion 
 belongs to the owner of the shore upon 
 which it is deposited rests on rhe consid- 
 eration that, while he is liable to lose 
 soil by the action of the water, he should 
 also have the benefit of accretion by the 
 same action. It in no manner depends 
 upon the duty of keeping up levees and 
 embankments to guard against the over- 
 flow of the river. Municipality No. 2 
 V. Cotton Press, 18 La. 122; s. c, 36 Am. 
 Dec. 625. 
 
 The title to lands reclaimed from the 
 water of a harbor, like the title to natural 
 accretion, was held to be in the owner of 
 the adjoining property. Lockwood v. 
 N. Y. & H. R. Co., 37 Conn. 387. 
 
 When soil has been wrongfully de- 
 posited by human hands in the ocean or 
 other public waters, in front of the up- 
 lands, so that the water-line is carried 
 further out, the same rule applies as 
 when such a. deposit has been gradually 
 made by natural causes, i.e., the accre- 
 tion becomes the property of the owner 
 of the upland, and his title still extends 
 to the water-line. 
 
 Plaintiff owned a lot in the city of B., 
 bounded easterly by the water-line of the 
 East River, and soatherly by the central 
 line of J. Street, which street terminated 
 
 at said water-line. A wharf had been 
 built in front of his lot, extending to the 
 centre of said street, which plaintiff 
 maintained, receiving wharfage from all 
 persons using the same. The city au- 
 thorities built a pier at the end of the 
 street, shutting off from the water that 
 portion of plaintiff's wharf in front of his 
 half of the street. In an action to re- 
 cover damages, held, that the erection of 
 the pier was a wrongful interference with 
 plaintiff's rights, and rendered the city 
 liable; that tfie pier was to be considered 
 as an accretion, and so much of it as was 
 in front of his half of the street became 
 his; also, that plaintiff, was entitled to 
 recover, as damages, the wharfage re- 
 ceived by the city from that portion of 
 the pier in front of his larid; that defend- 
 ant, having wrongfully collected the 
 wharfage, was not entitled to any allow- 
 ance for expenses incurred in collecting 
 the same, or for the cost of building the 
 wrongful structure, or keeping it in re- 
 pair. Steers v. Brooklyn, loi N. Y. 51. 
 Compare 3 Washb. on Real Prop. 
 (4th Ed.) 55; citing Austin v. Rutland- 
 R. Co., 45 Vt. 215. 
 
 Where the sea instead of retreating en- 
 croaches on the land, property so gradu- 
 ally submerged belongs to the State. 
 Wilson !>. Shiveley. 11 Oregon, 215. 
 
 But the owner of a beach which is 
 suddenly overflowed, and which years 
 afterward reappears, retains title thereto. 
 Mulry V. Norton, 100 N. Y. 424. 
 
 A party as a riparian owner cannot 
 be protected as to accretions to his 
 land which are not in existence and 
 which may or may not exist in the future. 
 Taylor v. Underbill, 40 Cal. 471. 
 
 136 
 
Unst be Slow. 
 
 ACCRETION. 
 
 On Bivers and Streams. 
 
 3. Must be Slow. — Accretion, to vest a title in the owner of the 
 abutting shore, must be so slow that its increase should be imper- 
 ■ceptible ;^ but if sudden and considerable it belongs to the 
 sovereign.** 
 
 4. Reliction. — Reliction is the increase of land by the retreat or 
 recession of water from the shore of a sea, river, or lake.' 
 
 5. Accretion on Rivers and Streams. — The owner of land on a 
 stream has a right to all the accretions thereto caused by the 
 deposition of alluvion thereon, without regard to the question 
 whether such accretions were formed solely by natural causes, or 
 by such causes influenced by the artificial works of others, and 
 without regard to the question whether such stream is navigable 
 or not.* 
 
 1. Angell on Watercourses, § 53; 
 Halsey tj. McCormick, 18 N. Y. 147; 
 Emans v. TurnbuU, 2 Johns. (N. Y.) 
 314: Mulry V. Norton. 100 N. Y. 424; 
 •Cook z/. McCIure, 58 N. Y.437; Loving- 
 ston V. St. Clair, 64 III. 56; s. c, 23 
 Wall. (U. S.) 68; Kraut v. Crawford, 18 
 la. 549; Benson v. Morrow, 61 Mo. 352;' 
 Hopkins Academy v. Dickinson, 9 
 Cush. (Mass.) 551. 
 
 The test of what addition is gradual 
 and imperceptible is that though the wit- 
 nesses may see from time to time that 
 progress has been made they could not 
 •perceive it while the progress was going 
 on. County of St. Clair v. Lovingston, 
 23 Wall. (U. S.) 46; s. c, 16 Am. Rep. 
 516. 
 
 2. 2 Blacks. Com. 261; Emans w. Turn- 
 tull, 2 Johns. (N. Y.) 314. 
 
 Where considerable quantities of soil 
 are by a sudden action of the water taken 
 from the land of one and deposited upon 
 or against the land of another it is called 
 " avulsion," and the title to such soil re- 
 mains in the original owner, unless he 
 fails to claim his right of ownership until 
 it has united with the soil 'of the other 
 ■owner. Angell on Watercourses, §60; 
 3 Washb. R. P. 60; Woodbury v. Short, 
 .17 Vt. 387. 
 
 3. Bouvier's Law. Diet. 
 
 Land lost by submergence may be re- 
 gained by reliction, unless the submer- 
 gence has been followed by such a lapse 
 of time as precluded the identity of the 
 land from being established. Mulry v. 
 Norton, 100 N. Y. 424. 
 
 Reliction takes place most frequently 
 in lakes and ponds. The owner of land 
 bounded on a lake, whether navigable or 
 not, has title to the land left dry by the, 
 gradual and imperceptible recession of 
 the water. Warren v. Chambers, 25 Ark. 
 120; s. c, 4 Am. Rep. 23; Banks v. Og- 
 den, 2 Wall. (U. S.) 57; Granger v. Swart, 
 
 I Woolw. (U. S.) 88; Murry v. Sermon, 
 I Hawks (N. Car.), 56; Boorman v. Sun- 
 nuchs, 42 Wis. 233. 
 
 But in Louisiana it has been held that 
 alluvion which forms upon the shores of 
 Lake Pontchartrain is not susceptible of 
 private ownership: such alluvion does 
 not, therefore,, become the property of 
 owners of lots fronting on said lake. It 
 is the accretion made by rivers and 
 streams only that belong to the proprie- 
 tors of adjacent lands. Zeller v. South- 
 ern Yacht Club, 34 La. Ann. 837. 
 
 Where the boundary line of land bor- 
 dering on an artificial pond was ex- 
 pressed in the deed " to commence at a 
 stake near the high-water mark of the 
 pond, and to run thence along the high- 
 water mark of said pond to the upper 
 end of said pond," it was held that the 
 boundary line was fixed and permanent, 
 and that the grantee was not entitled to 
 any accretions or land left dry by the 
 pond's receding, although the gradual and 
 imperceptible result of natural causes. 
 It would have been otherwise had the 
 deed not permanently fixed the boundary 
 line. Cook v, McClure, 58 N. Y. 437; 
 s. c, 17 Am. Rep. 270; but see Mansur 
 V. Blake, 62 Me. 38. 
 
 In order to entitle the adjoining prop- 
 erty-holders to the right of possession of 
 the land left bare by the receding water 
 the recession must be slow, gradual, and 
 imperceptible. In case of a sudden and 
 sensible recession of the water the owner- 
 ship of the land will not be changed. 
 Warren v. Chambers, 25 Ark. 120; s. c, 
 4 Am. Rep. 23; Lynch v. Allen, 4 Dev. 
 & B. (N. Car.) 62; Woodbury v. Short. 17 
 Vt. 387; Boorman w. Sunnuchs, 42 Wis. 
 ,233; Murry v. Sermon, i Hawks. 
 (N. Car.) 56. 
 
 4. New Orleans v. U. S., 10 Pet. (U. S.) 
 662; Jones t/. Soulard, 24 How. (U. S.)4i; 
 Saulett V. Shepherd, 4 Wall. (U. S.) 502; 
 
 137 
 
On Rivers and Streams. 
 
 ACCRETION. 
 
 Islands. 
 
 6. Islands. — If an island is formed by accretion in an unnaviga- 
 ble stream, the ownership of such island .will be determined by 
 
 Schools V. Risley, lo Wall. (U. S.) no; 
 Jones V. Johnston, i8 How. (U. S.) 150; 
 Handly v. Anthony, 5 Wheat. (U. S.) 380; 
 Barney v. Keokuk, g-). U. S. 324; Loving- 
 ston V. County of St. Clair, 64 111. 56; 
 s. c, 16 Am. Rep. 516; Godfrey v. City 
 of Alton, 12 111. 2g; Seaman v. Sniith. 24 
 111. 523; Lammers v. Nissen, 4 Neb. 245; 
 Halsey v. McCormick, 18 N. Y. 147; 
 Wetmore v. Atl. White Lead Co., 37 
 Barb. (N. Y.) 70; Posey v. James. 7 Lea 
 (Tenn), 98; Mintoz/. Delaney, 7 Oregon, 
 337; Giraud v. Hughes, i Gill & J. (Md.) 
 249; Patterson v. Gelston, 23 Md. 432; 
 Chapman v. Hoskins, 2 Md. ch. 485: 
 DeLord v. New Orleans, 11 La. Ann. 699; 
 Municipality No. 2 v. Cotton Press, 18 
 La. 122; s. c, 36 Am. Dec. 624; Kennedy 
 V. Municipality No. 2, 10 La. Ann. 54; 
 Barretts. New Orleans. r3 La. Ann. 105; 
 Benson v. Morrow, 61 Mo. 353; Smith w. 
 St. Louis Schools, 30 Mo. 290; Adams v. 
 Frothingham, 3 Mass. 353; Deerfield v. 
 Arms, 17 Pick. (Mass.) 41; s. c, 28 Am. 
 Dec. 271; Hopkins Academy v. Dickin- 
 son, 9 Cush. (Mass.) 544; Niehaus v. 
 Shepherd, 26 Ohio St. 45; Kraut v. Craw- 
 ford, 18 Iowa, 549; Morgan v. Scott, 26 
 Pa. St. 51; Miller v. Hepburn, 8 Bush 
 (Ky.), 326. Compare Ferrifere v. New Or- 
 leans, 35 La. Ann. 2O9. 
 
 Even where the alluvion is formed at a 
 bar which existed at the time the original 
 grant of the land was made, but which 
 was not included in the survey, being 
 covered with water during the greater 
 part of the year, the government's sur- 
 veyor running the line as near the; bank 
 as possible, considering the river the line, 
 the owner ,ot the land was held to be en- 
 titled to it, though at low water the dis- 
 tance across the bar to the water was 
 nearly half a mile. Stephenson v. Gofif, 
 
 10 Rob. (La.) 99; s. u., 43 Am. Dec. 171; 
 but see Fulton v. Frandolig. 63 Tex. 330. 
 
 The right to accretions as such in the 
 bed of a river depends on actual conti- 
 g^iity. Any separation of the claimant's 
 land from the alluvion by the land of 
 another defeats the claim. ./?f State Res- 
 ervation Comm'rs, 37 Hun (N. Y.), 537; 
 Bates V. Illinois, etc., R. Co., i Black. 
 , (tr. S.) 204; Saulett V. Shepherd, 4 Wall. 
 (U. S.) 502; Posey v. James, 7 Lea 
 (Tenn.), 98; Bristoll v. Carroll County, 
 95 111. 84; Beaufort v. Duncan, I Jones 
 (N. Car.), 234; New Orleans v. Gravier, 
 
 11 Mart. (La.) 620. 
 
 Where a new shore is formed on a not 
 navigable river from the opposite side by 
 
 the wearing-away of the stream, the land 
 on the new shore is to be divided between 
 the owners entitled to it, according to 
 the following rule: Give to each owner 
 a share of the new shore line in propor- 
 tion to what he held in the old shore line, 
 and complete the division of the land by 
 running a line from the bound between 
 the parties on the old shore to the point 
 thus ascertained on the new. Batchel- 
 der V. Keniston, 51 N. H. 496; s. c, 12 
 Am. Rep. 143; Johnston v. Jones, I 
 Black (U. S.), 209; Deerfield v. Arms, 17 
 Pick. (Mass.) 41; s. c. 28 Am. Dec. 276; 
 Knight v. Wilder, 2 Cush. (Mass.) 199; 
 Hopkins Academy v. Dickinson, 9 Cush. 
 (Mass.) 552; Wonson v. .-Wonson, 14 
 Allen (Mass.), 85; O'Donnell v. Kelsey, 
 10 N. Y. 412; Winnisimmet Co. w. Wy- 
 man, n Allen (Mass.), 438. Compare 
 Rust V. Boston Mill Corp.. 6 Pick. 
 (Mass.) 158; Sparhawk v. Bullard, i 
 Mete. (Mass.) 96; Emerson v. Taylor, 9 
 Greenl. (Me.) 43; Gray v. Deluce, 5 
 Cush. (Mass.) g; Mott v. Thayer, 2 
 Bosw. (N. Y.) 10. 
 
 A tract of land bordering upon the 
 Mississippi River ^was divided into par- 
 cels, some of which subdivisions or lots 
 extended to the river bank, as it then 
 was. These lots became the property of 
 various persons. Subsequently there 
 were accretions along the river front, and 
 in adjusting the matter of such accretions 
 among the several adjacent riparian 
 owners it was held the proper mode 
 was to measure the entire river front as 
 it was found to be when the lots were laid 
 out, and note the aggregate number of 
 feet frontage, as well as that of each lot; 
 then measure a line drawn as nearly as 
 may be with the middle thread of so 
 much of the stream as lies opposite the 
 shore line so measured; then divide the 
 thread line into as many equal parts as 
 there are lineal feet in the shore line, 
 giving to each proprietor as. many of 
 these parts as his property measures feet 
 on the shore line; and then complete the 
 division by drawing lines between the 
 points, designating the lot or parcel be- 
 longing to each proprietor both upon the 
 shore and river lines. Kehr v. Snyder, 
 114 111. 313. 
 
 Accretions to a strip of land in a city 
 along the river bank, vvhich is reserved 
 for a public highway and other public 
 uses, partakes of the same nature as the 
 original reservation; and the city holds 
 title to it subject to the same uses and 
 
 138 
 
lalands. 
 
 ACCRETION. 
 
 Islands. 
 
 the filum aqua. It belongs to the owner of the land on whose 
 side of this line it is formed ; or if the island is situated on the line, 
 so much of it as lies on his side, while the other part belongs to 
 the owner of the other shore. ^ 
 
 conditions. The city has no right, how- posited but a year or a day. Campbell 
 
 ever, to make an unqualified disposition 
 of it to a railroad company to be held and 
 used as private property, but may grant 
 the right of way over it to such railroad 
 company. Cook v. City of Burlington, 
 30 Iowa. 94; s. c, 6 Am. Rep. 649. "See 
 also Godfrey v. City of Alton, 12 111. zg; 
 s. c, 52 Am. Dec. 476. 
 
 The riparian owner has the title to all 
 the alluvial deposits on his property, and 
 it does not matter whether the property 
 has changed from rural to urban or 
 whether a street has been laid out 
 between a. tract of land and the river. 
 As long as the vacant strip between the 
 river and the street .has never expressly 
 been dedicated to public use it belongs, 
 with its accretion, to the owner of the 
 land, and the legislature cannot deprive 
 him of his right. It would be otherwise, 
 however, if, on the plan by which the 
 street was laid out,- said strip had been 
 marked "quay," or with any other word 
 indicative of the intent to dedicate it to 
 public use. Muncipality No. 2 v. Cotton 
 Press, 18 La. 122; s. u., 36 A-m. Dec. 624; 
 Wetmore v. Atlantic, etc., Co., 37 Barb. 
 (N. Y.) 70; Banks v. Ogden, 2 Wall. 
 (U. S.) 57; Donovan v. New Orleans, 35 
 La. Ann. 461. 
 
 Where in a city a street is laid out, 
 extending to a navigable river, accretions 
 formed at the foot of the street are con- 
 sidered a continuation of the street; and 
 adjoining owners will not have the right 
 to close up the space between the river 
 and the end of the street, although they 
 have a statutory right to erect piers and 
 bulkheads and fill up the river-bed in 
 front of their lands. Peoples. Lambier, 
 5 Denio (N. Y.), 9; s. u., 47 Am. Dec. 
 273. 
 
 A riparian proprietor is entitled to the 
 accretions made to his land by the'river, 
 and the statute of limitations in its ap- 
 plication to such accretions relates back 
 to the time it began to run in favor of 
 the riparian owner as to the main bank. 
 The accretions, in becoming a part of 
 the land to which they are joined, take 
 the title and condition of that land just 
 as it exists at the time of their forma- 
 tion. If the riparian owner is barred, 
 or partially barred, by the statute of 
 limitations as to the bank, he will be 
 barred as to the accretions in like man- 
 ner, although they may have been de- 
 
 V. Laclede Gas Co., 84 Mo. 353. 
 
 Where the owner of land bordering 
 upon a stream sees his land wearing 
 away by the water he may rubble or 
 secure his bank in any way so as to keep 
 the channel in its present location, but 
 he may not build a bulkhead and throw 
 the current on the opposite shore. Ger- 
 rish V. Clough, 48 N. H. 9; s. c, 2 Am. 
 Rep. 165; Angell on Watercourses, §§ 
 330-334; but see Diedrich ■</. North- 
 western R. Co., 42 Wis. 248. 
 
 1. McCuUough V. Wall, 4 Rich. (S. 
 Car.) L. 68; s. c, 53 Am. Dec. 715; 
 Ingraham v. Wilkinson, 4 Pick. (Mass.) 
 268; s. c, 16 Am. Dec. 342; Deerfield ii. 
 Arms, 17 Pick. (Mass.) 41; s. c, 28 Am. 
 Dec. 276; Hopkins Academy v. Dick- 
 inson, 9 Cush. (Mass.) 548; Middleton z/. 
 .Pritchard, 3 Scam. (111.) 510. 
 
 If an island was washed away, in 
 whole or in part, after it was surveyed 
 and then reformed on the same bed, the 
 owner of it, as it was before it was so 
 washed away, would be entitled to it; 
 but if it was washed away and the land 
 sought to be recovered was made by 
 deposits to and against the survey of 
 the main land, then such deposits be- 
 came the property of the owner of the 
 survey. Base v. Russell, 86 Mo. 209. 
 
 At common law only those rivei-s were 
 deemed navigable in which the tide ebbs 
 and flows; and grants of land bounded 
 on rivers or upon the margin of the 
 same, or along the same above. tide- 
 water, carry the exclusive right and title 
 of the grantee to the centre of the stream, 
 unless the terms of the grant clearly de- 
 note the intention to stop at the edge or 
 margin of the river; and the public, in 
 cases where the river is navigable for 
 boats and rafts, have an easement therein, 
 or a right of passage as a public high- 
 way. 3 Kent's Com. 427. 
 
 In the United States various opinions 
 have been held by the courts about 
 the term "navigable rivers." In some 
 States all rivers "of sufficient capac- 
 ity to float the products of the mines, 
 the forests, or the tillage of the coun- 
 try through which they flow, to market, 
 or for the floating of vessels,' boats, 
 rafts, or logs," are called "navigable 
 rivers," and the abutting owners own 
 only to high-water mark. In others the 
 common-law rule prevails, and the owners 
 
 139 
 
Islands. 
 
 ACCRETION. 
 
 Seaweed. 
 
 7. Seaweed. — Seaweed which by action of the elements or the 
 
 of land situated on these rivers above 
 tide-water own to the centre of the 
 stream, subject to the easement of 
 navigation. In some, the decisions are 
 both ways. Carson v Blazer, 2 Binn. 
 (Pa.) 475; s. c, 4 Am. Dec. 463; Shrunk 
 V. Schuylkill Nav. Co., 14 S. & R. (Pa.) 
 71 ; Monongahela Bridge Co. v. Kirk, 
 46 Pa. St. H2; Flanagan v. Philadelphia, 
 42 Pa. St. 230; Barclay R. Co. v, Ingham, 
 36 Pa. St. 200; Bird v. Smith. 8 Watts 
 (Pa.), 439; Union Canal v. Landis, 9 
 Watts (Pa.), 228; Cates». Wadlmgton, i 
 McCord (S. Car.), 5S0; s. c, 10 Am. 
 Dec. 699; Bullock v. Wilson, 2 Porter 
 <Ala.), 436; Elder v. Burrus, 6 Humph. 
 ^Tenn.) 358; Wilson v. Forbes, 2 Den. 
 <N. Car.) 30; Collins v. Benbury, 3 
 Ired. (N. Car.) 277; s. c, 38 Am. Dec. 
 722; Ingram v. Threadgill, 3 Ired. (N. 
 Car.) 59; McManus v. Carmichael, 3 
 Iowa, I; Tomlin" z/. Dubuque, etc., R. 
 Co., 32 Iowa, 106; Haight v. Keokuk, 4 
 Iowa, 199; Musser v. Hershey, 42 Iowa, 
 356; Wood V. Hustis, 17 Wis. 417; Cobb 
 V. Smith, 16 Wis. 692; Harrington v. 
 Edwards, 17 Wis. 586*; The IMontello, 20 
 Wall. (U. S.) 430; Wisconsin River Co. 
 V. Lyons, 30 Wis. 61; Weise v. Smith, 
 3 Oregon, 445; Felger v. Robinson, 3 
 Oregon, 455; Bowman v. Wathen, 2 
 McLean (U. S.), 376; Railroad Co. v. 
 Schurmeir, 7 WalL (U. S.) 272; Barney v. 
 Keokuk, 94 U. S. 324; Martin v. Waddell, 
 16 Pet. (U. S.) 376; Pollard's Lessee v. 
 Hogan, 3 How. (U. S.) 212: Goodtitle v. 
 Kibbe. 9 How. (U. S.) 471 ; Genesee Chief 
 V. Fitzhugh, 12 How. ((J. S.) 443; Com. 
 V. Chapin, 5 Pick. (Mass.) 199; Com. 
 V. Charlestown, i , Pick. (Mass.) 180; 
 s. c, II Am. Dec. i5i; Ingraham v. 
 Wilkinson, 4 Pick. (Mass.) 268; Siover 
 V. Freeman, 6 Mass. 435; s. c, 4 Am. 
 Dec. 155; Adams v. Pease, 2 Conn. 481; 
 East Haven v. Hemingway, 7 Conn. 186; 
 Middletown v. Sage, 8 Conn. 221; Chap- 
 man V. Kimball, 9 Conn. 38; Berry v. 
 Snyder, 3 Bush (Ky.), 266; Miller v. 
 Hepburn, 8 Bush (Ky.), 326; Berry v. 
 Carle, 3 Greenl. (Me.) 269*; Spring v. 
 Russell, 7 Greenl. (Me.) 273; Spring v. 
 Seavey, 8 Greenl. (Me.) 138; W'adsworth 
 V. Smith, n Me. 278; s. c, 26 Am. Dec. 
 525; Granger v. Avery, 64 Me. 292; 
 Browne v. Kennedy, 5 Harr. & J. (Md.) 
 195; is. t., 9 Am. Dec. 503; Hayes v. 
 Bowman, i Rand. (Va.) 417; Mead v. 
 Haynes, 3 Rand. (Va.) 33 ; Bell v. Gough, 
 
 3 Zab. (N. J.) 656; Townsend v. Brown, 
 
 4 Zab. (N. J.) 80; Cobb v. Davenport, 
 3 Vooni (N. J.). 369; Stevens v. Pater- 
 .son, etc., R. Co. 5 Vroom (N, J.), 537; 
 
 Arnold v. Mundy, i Halst. (N. J.) i; s. 
 c, 10 Am. Dec. 356; Morgan v.. Read- 
 ing, 3 Sm. & M. (Miss.) 366; The 
 Magnolia v. Marshall. 39 Miss. 109; 
 Lorman v. Benson, 8 Mieh. 18; Rice w. 
 Ruddeman. 10 Mich. 126; Ryan v. 
 Brown, 18 Mich. 196; Walker v. Board 
 of Public Works, 16 Ohio. 540; Lamb v. 
 Rickets, 11 Ohio, 311; Gavitt v. Cham- 
 bers, 3 Ohio, 495; Benner v. Platter, 6 
 Ohio, 505; Blanchard v. Porter, 11 Ohio, 
 138; Cox V. State, 3 Blackf. (Ind.) 193; 
 Young V. Harrison, 6 Ga. 141; Middle- 
 town V. Priichard, 3 Scam. (111.) 500; 
 Board of Trustees v. Haven, 5 Gilm. 
 (111.) 548; City of Chicago v, Laflin, 49 
 111. 177; Braxon v. Bressler, 64 111. 488; 
 Comm'rs of the Canal Fund v. Kemp- 
 shall, 26 Wend. (N. Y.) 404; Varick v. 
 Smith, 5 Paige (N. Y..), 137; Palmer v. 
 Mulligan, 3 Cai. (N. Y.) 307; s. c, ;: Am-. 
 Dec. 270; People v. Piatt, 17 Johns. (N. 
 Y.) 195; Hooker v. Cummings, 20 
 
 .Johns. (N. Y.) 90; s. c, 11 Am. Dec. 
 249; Exp. Jennings, 61 Cow. (N. Y.)5i8; 
 Canal Appraisers z/. People, 17 Wend. (N. 
 Y.) 574; Shaw V. Crawford, 10 Johns. 
 (N. Y.) 236; Starr v. Child, 20 Wend. 
 (N. Y.) 152; Morgan v. King, 35 N. Y. 
 455: People V-. Canal Appraisers, 33 N. 
 Y. 461; O'Fallon v. Daggett, 4 Mo. 343; 
 Benson v. Morrow, 61 Mo. 345; Jones z/. 
 Soulard, 21 How. (U. S.) 41. 
 
 Owners of land bounded by unnavi- 
 gable rivers, or of navigable rivers above 
 tide-water, in States where the soil under 
 water has not been made by statute, the 
 property of the State, own to the middle 
 of the stream, unless the conveyance de- 
 notes an intention to stop short of that. 
 McCuUough V. Wall, 4 Rich. (S. Car.) 
 L. 68; s. c, 53 Am. Dec. 715; The Mag- 
 nolia V. Marshall, 39 Miss. 109; Eus- 
 
 'minger v. People, 47 111. 384; Berry w. 
 Snyder, 3 Bush (Ky), 266; Wood v. 
 Hustis, 17 Wis. 418; Luce v. Carley, 24 
 Wend. (N. Y.) 451; Cobb v. Smith, 16 
 Wis. 692; Lowell V. Robinson, 16 Me. 
 357; s. c, 33 Am. Dec. 671; Ross v. 
 Faust, 54 Ind. 471; Cold Springs Iron- 
 works V. Talland, 9 Cush. (Mass.) 496; 
 Ingraham v. Wilkinson, 4 Pick. (Mass.) 
 26S; Hatch V. Dwight, 17 Mass. 289; and 
 see Ridgway v. Ludlow, 58 Ind. 248, 
 where the same principle is applied to a 
 lake. And it is not changed where by 
 means of a dam a mill-pond is formed. 
 The abutting owners own yet to the mid- 
 dle of the stream. Hathorne v. Stinson, 
 3 Fairf. (Me.) 183; Lowell v. Robinson, 
 16 Me. 357; Waterman v. Johnson, 13 
 Pick. (Mass.) 261 ; Finley v. Hershey, 41 
 
 140 
 
Seaweed. 
 
 ACCRETION. 
 
 Stranded Property, 
 
 movements of the sea is cast upon the beach is considered to be 
 ■accretion, and belongs to the owner of the beach. ^ 
 
 8. Stranded Property. — Property carried away by a flood and 
 -Stranded on another's land remains the property of the one who 
 ■owns it at the time of the flood. He can reclaim it or abandon it 
 as he pleases. His refusal to remove it from the land where it 
 was stranded does not divest him of his right in it, nor does it 
 bar his right of entry to reclaim it. The owner of the soil has no 
 lien on it, and cannot convert it to his own use ; but he may, after 
 notice given, cast it back into the stream.* 
 
 Iowa, 389. See Boundaries; Riparian 
 Rights, 
 
 When, however, the deed clearly indi- 
 •cates that it was the intention of the 
 grantor to exclude the stream, it will' be 
 so excluded. Child v. Starr. 4 Hill iN, 
 Y.), 369; Kingman v. Sparrow. 12 Barb. 
 '(N. Y.) 201; Yates v. Van De Bogert, 56 
 N, Y. 526; Bradford v. Cressey, 45 Me. 
 •9; Dunlap V. Stetson. 4 Mason (U. S,), 
 .349; McCulloughz/,Wall, 4 Rich, (S, Car,) 
 L. 68; s, c, 53 Am, Dec, 715, 
 
 Riparian proprietor's ownership of 
 land under water, where it exists, is meas- 
 ured by lines at right angles to the bank, 
 without regard to the course of the line 
 bounding the remainder of the tract, and 
 without regard to the depth of the water. 
 The middle of such lines, drawn from 
 bank to bank, will be the filum aqua. 
 Hopkins Academy v. Dickinson, 9 Cush, 
 <Mass,) 544, 
 
 Where a river changes its course so as 
 to cut off a point of the property of a land- 
 owner, this will not change the owner- 
 ship; the title to the island thus formed 
 will still be in the original owner, Hop- 
 kins Academy v. Dickinson, 9 Cush, 
 ■(Mass,) 544; Bonewits v. Wygant, 75 Ind. 
 
 41- 
 
 If the river in changing its course leaves 
 its bed dry, and seeks a new one, the 
 owners on both sides of the old bed will 
 have the title to land thus formed; the 
 dividing line being the former filum 
 ^quce. Hopkins Academy v. Dickinson, 
 9 Cush, (Mass,) 544, 
 
 Where the intermediate space between 
 a survey on the mainland of the Missouri 
 River and a surveyed island, at the times 
 of the surveys, consisted of a slough, and 
 since then the slough has so filled up as 
 to connect the island and the mainland 
 and to make them one continuous tract 
 of land, the adjacent owners of the island 
 and the survey are entitled to the accre- 
 tions to their respective lands; but if the 
 slough simply filled up from the bottom, 
 or by deposits within its bed, and the 
 accretions did ndt form on the one side 
 
 or the other, then the centre of the slough 
 as it was before the water left it is the 
 boundary between the survey and the 
 island. Where the shore lines of two 
 tracts of land divided by a watercourse 
 receive accretions until they come to- 
 gether, the line of contact will then be 
 the division line. If the slough gradually 
 filled up as the water receded, the same 
 principle is applied, and the new land be- 
 longs to the riparian owner from whose 
 shore the water receded, and it is immate- 
 rial whether the water was navigable in 
 the common-law sense or general accep- 
 tation of the term, or was a non-navigable 
 stream, Buse v. Russell, 86 Mo. 209, 
 
 Alluvion, whether it effects an accre- 
 tion to the shore, or whether it forms 
 islands, alters the position of the original 
 filum aguts, and it will always be located 
 by taking the middle of a line, drawn at 
 right angles from bank to bank, no matter 
 how recently the bank may be formed. 
 Miller v. Hepburn, 8 Bush (Ky.), 326; 
 Clark V. Campan, 19 Mich, 329; Knight 
 V. Wilder, 2 Cush, (Mass.) 202; Bay City 
 Gaslight Co. v. Industrial Works, 28 
 Mich, 182; Stolp V. Hoyt, 44 111. 220; 
 Deerfield v. Arms, 17 Pick. (Mass.) 41; 
 Bonewits v. Wygant, 75 Ind, 41. 
 
 1, Phillips V. Rhodes, 7 Mete. (Mass.) 
 ■ 323; Emans &. Turnbull, 2 Johns, (N. 
 Y,) 322; Anthony v. Gifford, 2 Allen 
 (Mass.), 550; |Mather v. Chapman, 40 
 Conn. 582; Church v. Meeker, 34 Conn. 
 432. But not the seaweed that grows and 
 accumulates on the bed of a navigable 
 river, below low-water mark. Chapman 
 V. Kimball, g Conn. 38, Hollister v. 
 Union Co., 9 Conn. 443. And seaweed 
 floating between high and low, water- 
 mark, although the bottom of the mass 
 may touch the beach, is the property of 
 the public, Anthony v. Gifford, 2 Allen 
 (Mass.), 549, 
 
 S. Foster v. Juniata Bridge Co., 16 
 Pa, St, 393; s. c, 55 Am. Dec. 506; Et- 
 ter V. Edwards, 4 Watts (Pa,), 65, 
 
 The owner of land on which property 
 of another is cast by a storm or a flood, 
 
 I C, of L, — 10 
 
 141 
 
A CCR UE—A CC UM ULA TED S URPL US. 
 
 ACCRUE— ACCRUED— ACCRUING.— These words, in their gen- 
 erally received sense, are used of something which is to be added 
 or attached to something else.^ Due and payable.® Vested.* 
 
 ACCUMULATED SURPLUS (of a corporation).— It is the fund 
 
 although he has no title to it, is not 
 bound to preserve it for the owner. He 
 may. free his land from the incumbrance. 
 Proctor t;. Adams, 113 Mass. 377; Live- 
 zey V. Philadelphia, 64 Pa. St. 106. 
 
 The owher of the stranded property 
 has, however, the right to enter the 
 premises on which it was stranded and 
 retake it, but is bound to do as little 
 damage as possible. Berry v. Carle, 3 
 Greenl. (Me.) 269*; Treat v. Lord, 42 Me. 
 552; Carter v. Thurston, 58 N. H. 104; 
 s. c, 42 Am. Rep. 584; Sheldon v. Sher-, 
 man, 42 N. Y. 484; Hetfield v. Baum, 13 
 Ired. (N. Car.) L. 394; Brown v. Chad- 
 bourn. 31 Me. g; s. c, 50 Am. Dec. 641. 
 
 To exempt the owner of the stranded 
 property from liability for any injury 
 which the owner of the land on which it 
 was stranded may have sustained, he 
 must be entirely free of negligence. 
 Thompson v. Androscoggin Co.. 54 N. H. 
 545; Sheldon v. Sherman, 42 N. Y. 484; 
 Livezey v. Philadelphia, 64 Pa. St. 106; 
 Lehigh Bridge Co. v Lehigh Coal & N. 
 Co., 4 Rawle (Pa.), 9; s. c, 26 Am. Dec. 
 III. 
 
 It seems, however, that the owner of 
 the property, although not guilty of neg- 
 ligence, will be responsible for the dam- 
 age done by it if he reclaims it. Gould 
 on Waters, § 102; Reeder v. Anderson, 
 4 Dana (Ky.), 193; Chase v. Corcoran, 
 106 Mass. 286; Moore v. Erie R. Co., 7 
 Lans. (N. Y.) 39; Sheldon v. Sherman, 
 42 N. Y. 484. See Salvage. 
 
 Authorities for Accretion. — Washburne 
 on Real Property; Bouvier's Law Diet,; 
 Blacks. Com.; Kent's Com.; Angell on 
 Watercourses. 
 
 1. Johnson v. Humboldt, 91 111. 95. 
 
 2. Mundt V. Sljeboygan, etc., 31 Wis. 
 451; Kennedy v. Barrier, 36 Mo. 128; 
 Hall V. Pritchett, 3 Q, B. Div. 215; Fay 
 V. Halloran, 35 Barb. (N. Y.) 297. 
 
 3. Hartshorne v. Ross, 2 Disney 
 (Ohio), 15. 
 
 Cause of Action shall accrue or shall 
 have accrued. — The sixth section of the 
 act provides that suit must be brought 
 "within one year from the time the 
 cause of action accrued." When, then, 
 did the cause of action accrue ? We think 
 the cause of action accrued whenever the 
 defendant's liability became perfect and 
 complete. Kennedy v. Barrier, 36 Mo. 
 128. 
 
 The statute likewise provides that no- 
 tice shall be given to the company ' ' with- 
 in thirty days after such claim or demand 
 shall have accrued." The time of pay- 
 ment of the laborers was on the 15th day 
 of each month, and it was customary for 
 them to wait until the 15th of the next 
 month for payment for all work done by 
 them after the 15th of the last month. 
 We are of opinion that the demand of 
 the plaintiff did not accrue until the 15th 
 day of December. Mundt z;. Sheboygan, 
 etc., 31 Wis. 451. 
 
 All Eights that had accrued. — We sup- 
 pose the term "accrued" is equivalent m 
 its meaning to the word " vested," which 
 necessarily • implies that something has 
 been imparted to or conferred upon a 
 third person. Hartshorne. v. Ross, 2 
 Disney (Ohio), 15. 
 
 The terms "shall have accrued " have 
 in one case been held to mean "shall have 
 existed," where there has been an in- 
 choate , right or title, effect to which, 
 however, could not be given until there 
 was some intrusion upon that right. 
 Weber v. Harbor Commissioners, 18 
 Wall. 57. 
 
 Accrue and Occur distinguished. — The 
 word " occur" means " to happen" in its 
 general and most popular sense, whilst 
 the word " accrue" is to be added or at- 
 tached to something else, in its generally 
 received sense, Johnson v. Humboldt, 
 91 111. 95. 
 
 Costs that have accrued, — " All the 
 costs that have accrued," when the words 
 are used in the compromise of a pending 
 suit, or in a private statute providing for 
 such compromise, mean costs that would 
 follow the judgment, and do not include 
 attorney's fees. Tallassee Man. Co. v. 
 Glenn, 50 Ala. 489. 
 
 Accruing or Owing, — " When the words 
 "accruing or owing' are used, as they 
 plainly are, to designate two classes of 
 debts, they can receive each a distinct 
 meaning only by taking one as denoting 
 debts which are not yet payable, and the 
 other as denoting those which are." 
 Dresser v. Johns, 5 G. B. (N. S.) 434, 
 citing Jones v. Thompson, 27 Law J. Q. 
 B. 234. 
 
 Accruing, — It is intended to apply to 
 those cases in which there is a (/i?W/»ot ?'» 
 frasenti solvettdum in futuro. Jones v. 
 Thompson, supra. 
 
 142 
 
A CC USE— A CC US TO MED— A CKNO WLED GHENT. 
 
 the corporation has in excess of its capital stock after payment of 
 its debts.i 
 
 ACCUMULATION. See DEVISE ; TRUST ; WILLS. 
 
 ACCUSE — ACCUSED.— The expression " to accuse" is used to 
 denote the bringing a charge against one before some court or 
 officer ; and the person thus charged is often referred to as the 
 " accused." * 
 
 ACCUSTOMED. — Where a deed conveyed a water privilege with 
 the power and appurtenances as they now exist, with the right to 
 rebuild and repair the dam, and to pass and repass, in the use of 
 the same, ■' over the accustomed way," it was held that the right 
 of way must be regarded as limited to the last accustomed way.^ 
 
 ACKNOWLEDGMENT. See CONVEYANCES ; Deed ; Limita- 
 tions (Statute of) ; Notary. 
 
 \. Definition. 8. Subsequent Acknowledgment. 
 
 2. Who may take. 9. Proof by Subscribing Witnesses^ 
 
 3. Who may not take. 10. Married Women. 
 
 4. The Certificate. 11. Divorce — Abandonment. 
 
 5. Corporations. 12. Legacy. 
 
 6. Impeachment — Fraud. 13. Agent — Attorney. 
 
 7. Validating Statutes. 14. By Order of Court. 
 
 1. Definition. — The act of one who has executed a deed in going 
 before some competent officer or court and declaring it to be his 
 act or deed, together with the certificate of the officer that it has 
 been so acknowledged.* 
 
 1. People's Ins. Co. v. Parker, 6 imputation merely. In this sense, one 
 Vroom (N. J.), 578. Compare State ex may be accused of that which is no legal 
 ret'., etc., v. Utter. 5 Vroom (N. J.), 489. offence; as, if he is charged with immoral 
 
 2. People V. Braman. 30 Mich. 468. or disgraceful conduct or official de- 
 Threat to accuse. — It has been held linquency. It certainly is not synony- 
 
 that a threat to procure witnesses to sup- mous with " arrested under criminal proc- 
 
 port a complaint already made is not a ess." Popular sense will support the 
 
 threat to accuse. Rex v. Gill, i Lewin construction that a slave is "accused" 
 
 C. C. 305. when the commission of a capital felony 
 
 " Threat of Accusation." — It has been is charged or imputed to him. State v. 
 
 held that a threat to cause process falsely South, 5 Rich. (S. C.) 489. 
 
 stated to have been issued to be served " Charge and accuse." — The term 
 
 on a party for a crime was within the "charge and accuse" thus used, and in 
 
 statute; the court remarking that " a. this connection, does not mean to actually 
 
 threat of accusation, in the sense of the charge before a grand jury or a magis- 
 
 statute, comprehends a threat to use any trate, but to impute to him these offences 
 
 of the preliminary means necessary to falsely, as a means of inducing him to pay 
 
 cause a person to be proceeded against for money to avoid such actual prosecution, 
 
 a criminal offence." Com. z/. Murphy, 12 Com. w. O'Brien f/ 3/., 12 Gush. (Mass.) 90. 
 
 Allen, 449; Com. w. Dorns, 108 Mass. 488. 3. Ferriss v. Knowles, 41 Conn. 308. 
 
 A threat to accuse need not be a threat Cf. Queen v. Mayor, 8 Ad. & Ell. 182. 
 
 to charge before any judicial tribunal; a Accustomed Way. — Where a deed of a 
 
 threat to charge before any third person tannery and dam gave the right to rebuild 
 
 is sufficient. Robinson's Case, 2 Moo. & and to pass and repass in the use of the 
 
 Rob. 14. same over the "accustomed vi[ay." held, 
 
 " I3 accused." — The first ground of ap- that the covenant referred to a custom 
 
 peal presents for inquiry what is meant existing at the date of the deed, and that 
 
 by the word "accused." Though fre- it gave no right to rebuild at a previous 
 
 quently used in that sense, it does not and different locality. Ferris w. Knowles, 
 
 necessarily import the charge of a crime 41 Conn. 308. 
 
 by judicial procedure. In its popular 4. Bouvier's Law Diet.; Brown's Law 
 
 sense it is used to express a charge or Diet. (Sprague's Ed.) 
 
 143 
 
Who may take. 
 
 ACKNO WLEDGMENT. 
 
 Who may take. 
 
 2. Who may take. — In the various States, the officers qualified 
 to take acknowledgments are named by statute. ^ An attesting 
 witness may take an acknowledgment;* also American consuls 
 in foreign countries ;3 a judge of a Supreme Court, as he is inclu- 
 sively a justice of the peace ; * an officer de facto ;^ a deputy in 
 the name of the principal;* a provost-marshal in a place under 
 military occupation ;'' a relative of the party making the ac- 
 knowledgment.* The attorney for the husband may take the 
 
 Hill w. Bacon, 43 111. 477, holds the act 
 to be simply ministerial. See Biscoe v. 
 Byrd, 15 Ark. 655; Learned v. Riley, 14 
 -Allen (Mass.), 109; Odiorne v. Mason, 9 
 N. H. 30; Crumbaugh v. Kugler, 2 Ohio 
 St. 373. Compare Wasson w. Connor, 54 
 Miss. 352; Kerr v. Russell, 69 111. 666; 
 s. c, 18 Am. Rep. 634. 
 
 Under the Ohio statute a deed must be 
 acknowledged to pass title. Smith v. 
 Hunt, 13 Ohio, 260. 
 
 Under the New York and Texas 
 -statutes a deed must be acknowledged to 
 Jiold good against subsequent purchasers. 
 Morss V. Salisbury, 48 N. Y. 636; Wood 
 v. Chapin, 13 >f. Y. 509; Menley v. Zei- 
 gler, 23 Tex. 88. 
 
 A notary public or justice of the peace 
 ■cannot properly take fhe acknowledg- 
 ment of a person to a deed if he believes 
 him mentally incompetent to make a 
 will; nor may he take an acknowledg- 
 ment through a third person. Hoban v. 
 Piquette, 52 Mich. 346. 
 
 A certificate of acknowledgment writ- 
 ten on a piece of paper separate from the 
 deed, and pasted to it, is, if in proper 
 form, a valid certificate. Schramm v. 
 Gentry, 63 Tex. 583. 
 
 The acknowledgment must all be in 
 writing, it cannot be partly in writing 
 and partly in parol. Ennor v. Thomp- 
 son, 46 lil. 214; Lindley 11. Smith, 46 
 111. 523. 
 
 SherifPs Deed. — A sheriff's deed made 
 in 1878 was executed by one acting as 
 deputy sheriff. Held, that such deputy 
 was the proper person to acknowledge 
 its execution, and a certificate of acknowl- 
 edgment by the district clerk that "per- 
 sonally appeared H., sheriff of T. Co., 
 by S., deputy, to roe well known, and ac- 
 knowledged that he executed the fore- 
 going deed for the purposes and consid- 
 eration and in the capacity therein set 
 forth and expressed," being formal in all 
 other respects, was sufficient. Terrell v. 
 Martin, 64 Tex. 121. 
 
 1. The mayor of a town cannot take 
 acknowledgments under a statute author- 
 izinsr mayors of cities to do so. Dundy 
 V. Chambers, 23 111. 312. 
 
 Tederal Statutes,— U. S. R. ?. §§ 1071, 
 1778; vol. 2, 5Ǥ 251, 451. 
 3. Baird v. Evans, 58 Ga. 350. 
 
 3. Scanlan v. Wright, 13 Pick. (Mass.) 
 523; s. t., 25 Am. Dec. 344; Palmer v. 
 Stevens, 11 Cush. (Mass.) 147; Welsh v. 
 Hill, 2 Johns. (N. Y.) 373. 
 
 4. Middlebury College v. Chenny, i 
 Vt. 336. Under the N. Y. statute the 
 vice-chancellor had no power to take ac- 
 knowledgments. Ridabock v. Levy, 8 
 Paige (N. Y.), 197; s. c, 35 Am. Dec. 682. 
 
 5. Brown v. Lunt, 37 Me. 423; Wood- 
 ruff V. McHarry, 56 111. 2i8; Prescott v. 
 Hayes, 42 N. H. 56; Hamilton v. Pitcher, 
 53 Mo. 354. 
 
 6. Emmal v. Webb, 36 Cal. 203; Mul- 
 ler z;. Boggs, 25 Cal. 175; Touchard v. 
 Crow, 20 Cal. 150; Lynch v. Livingston, 
 8 Barb. (N. Y.) 463; Rose v. Newman, 
 26 Tex. 131; Cookzi. Knott, 28 Tex. 85; 
 Babbitt v. Johnson, 15 Kan. 252; Gib- 
 bons V. Gentry, 20 Mo. 468; Abrams v. 
 Ervin, 9 Iowa, 87; Woodruff ii. McHari^, 
 56 111. 218; Hope & Sawyer, 14 111. 254; 
 Kemp V. Porter, 7 Ala. 138; McRavenw. 
 McGuire, 9 Smed. & M. (Miss.) 34; Gor- 
 don V. Leech, 81 Ky. 229; Drye v. Cook, 
 1I4 Bush (Ky.), 459; Talbott v. Hooser, 
 12 Bush (Ky.), 408; Moore v. Farrow, 3 
 A. K. Marsh (Ky.), 41; Beaumont v. 
 Yeatman, 8 Humph. (Tenn.) 542. 
 
 In some States the deputy may take ac- 
 knowledgments in his own name. Tou- 
 chard V. Crow, 20 Cal. 150; Cook v. 
 Knott, 28 Tex. 85 ; McCraven v. McGuire, 
 23 Miss. 100; McRaven v. McGuire, 9 
 Smed. & M. (Miss.) 34; Beaumont v. 
 Yeatman, 8 Humph. (Tenn.) 542; Talbott 
 V. Hooser, 12 Bush (Ky.), 408. 
 
 In Mississippi and Alabama clerks of 
 probate courts may take acknowledg- 
 ments. James v. Fisk, g Smed. & M. 
 (Miss.) 144; s. c, 47 Am. Dec. Hi; 
 McCraven v. McGuire, 23 Miss. 100; 
 Halso V. Seawright, 65 Ala. 431. 
 
 In California a deputy recorder may 
 take an acknowledgment in the name 
 and as the act of his principal. MuUer v. 
 Boggs, 25 Cal. 175. 
 
 7. Paul V. Carpenter, 70 N. Car. 502. 
 
 8, A commissioner of deeds, in taking 
 
 144 
 
Who may take. 
 
 ACKNO WLEDGMENT. 
 
 Who may not take. 
 
 wife's acknowledgment.^ Such persons, however, must be prop- 
 erly qualified, as notaries public or other public officers, to take 
 such acknowledgniients. A trustee of a trust deed.* An officer 
 of a corporation whose duty it is to countersign and register its 
 deeds.^ A commissioner holding office "during pleasure of the 
 governor" may take acknowledgments after the governor's term 
 of office has expired.* 
 
 3. Who may not take Acknowledgments. — An officer whose term of 
 office has terminated.*^ A party interested in the conveyance can- 
 not take the acknowledgment,® and the recording of such deed will 
 
 an acknowledgment of the execution of a 
 deed, acts ministerially and not judici- 
 ally; and it is not therefore any valid ob- 
 jection to his act that he is related to the 
 parties. Lynch v. Livingston, 6 N. Y. 
 433; Remington Paper Co. v. O'Dough- 
 erty, 81 N. Y. 474. 
 
 1. Magistrates interested in the trans- 
 action are not competent to take the ex- 
 amination of a married woman for the 
 conveyance of her land. The solicitor of 
 the husband is not as such disqualified. 
 Romanes v. Frazier, 16 Grant Ch. (U. C.) 
 97; 17 Id. 267. 
 
 2. Bennett v. Shipley, 82 Mo. 448. 
 Compare Darst v. Gale, 83 III. 136. 
 
 If the married woman acknowledges 
 before her trustee a deed to his wife of 
 the land in satisfaction of the trust deed, 
 it is void. Jones v. Porter, 59 Miss. 
 628. 
 
 A deed of trust is executed by a man 
 and his wife to two trustees to secure a 
 debt, the grantors in the deed acknowl- 
 edge it before one of the grantees, a 
 trustee, as a notary public, and on this 
 acknowledgment it is admitted to record. 
 Held, such acknowledgment and recorda- 
 tion are invalid, and the deed is an abso- 
 lute nullity as to the married woman, and 
 is to be regarded as an unrecorded deed 
 as to the male grantor. Tavenner v. 
 Barrett, 21 W. Va. 658. 
 
 3. Sawyer v. Cox, 63 III. 130. 
 
 4. Thorn v. Frazier, 60 Tex. 259. 
 
 5. Gilbrdith v. Gallwan, 78 Mo. 452. 
 Compare Grotenkemper v. Carver, 4 Lea 
 (Tenn.), 375- 
 
 When a justice of the peace has ceased 
 to fill that ofBce in the county, though 
 filling the same office in another county, 
 he heis no authority to sign his name to a 
 blank or defective certificate of acknowl- 
 edgment, so as to make the certificate 
 operate by relation as of the day of its 
 date. Carlisle v. Carlisle. 78 Ala. 542. 
 
 One who was county judge at the time 
 such office was abolislied, and thereafter, 
 , in pursuance of the statute, county audi- 
 tor and clerk of board of supervisors, 
 had no power, as such last-named officer. 
 
 to take acknowledgments. Goodykoontz 
 V. Olsen, 54 Iowa, 174. 
 
 6. Hogansi/. Carruth, 18 Fla. 587; Was- 
 son V. Connor, 54 Miss. 352; Jones v. 
 Parter, 59 Miss. 628; Green v. Abraham, 
 43 Ark. 420; Brown v. Moore, 38 Tex. 
 645; Wilson V. Traer, 20 Iowa, 233; 
 Hammers v. Dole, 61 111. 307; West ». 
 Krebaum, 88 111. 263; Stevens v. Hamp- 
 ton, 46 Mo. 404; Dail V. Moore, 51 Mo. 
 589; Groesbeck v. Seeley, 13 Mich. 329; 
 Davis V. Beazley. 75 Va. 491; Withers v. 
 Baird, 7 Watts (Pa.), 227; s. c, 32 Am. 
 Dec. 754. See Dussaume v. Burnett, 5 
 Iowa, 95. Compare Lynch v. Livingston, 
 6 N. Y. 422; Kimball v. Johnson, 14 Wis. 
 682. As regards these two cases. Bliss, 
 J., says (Stevetis v. Hampton, supra): 
 " They seem to recognize a contrary doc- 
 trine, although I think there is no real 
 conflict. In the former case, an ordi- 
 nary acknowledgment was held to be a 
 ministerial act, and hence did not come 
 under the prohibition against the action 
 of judges or jurors who were relatives of 
 the parties. In 'the latter case, a mort- 
 gage was given to a married woman to 
 secure her for money loaned which be- 
 longed to her separate estate and was 
 acknowledged before her husband. . . . 
 Here the husband was not a party to the 
 instrument, and could have no interest 
 in the separate estate of the wife." Cf. 
 Nat. Bank v. Conway, 14 Bank. Reg. 513. 
 
 Where one of the grantees was a 
 judge of the court in which a sheriff's 
 deed had to be acknowledged, held, no 
 objection to the deed. Lewis v. Curry, 
 . 74 Mo. 49. 
 
 A person cannot take his own acknowl- 
 edgment. Groesbeck v. Seeley, 13 Mich. 
 329; Beaman v. Whitney, 22 Me. 413; 
 Davis V. Beazley, 75 Va. 491. 
 
 In Ne»v York it is held that relation- 
 ship to one of the parties is no bar to 
 taking the acknowledgment. Lynch v. 
 Livingston, 6 N. Y. 433; Remington Pa- 
 per Co. V. O'Dougherty, 81 N. Y. 474. 
 
 A trustee who receives commissions is 
 disqualified. Brown v. Moore, 38 Tex. 
 645. Compare Dial v. Moore, 51 Mo. 589. 
 
 145 
 
Who may not take. 
 
 ACKNO WLEDGMENT. 
 
 Who may not take. 
 
 not be constructive notice to subsequent purchasers. * An officer 
 cannot take an acknowledgment outside of his jurisdiction,** but 
 the parties obtaining such acknowledgment are estopped to deny 
 its validity in the absence of fraud. ^ 
 
 A deed of trust acknowledged before 
 the trustee therein, where its execution is 
 duly proved, is good between the parties 
 thereto and those claiming under them. 
 Siemers v. Kleeburg, 56 Mo. 196; Black 
 V. Gregg, 58 Mo. 565; Bennett v. Shipley, 
 82 Mo. 448. 
 
 An acknowledgment of the execution 
 of a deed taken by a party to it. does not 
 E^uthorize it to be recorded, and the 
 record of it imparts no notice to subse- 
 quent purchasers or incumbrancers. But 
 such acknowledgment taken before the 
 curing act of March 8, 1883 (Ark.), was 
 validated by that act. except in cases 
 where it affected vested rights, or the 
 conveyances of minors or insane persons. 
 Green v. Abrahams, 43 Ark. 420. 
 
 1. Brown v. Moore, 38 Tex. 645 ; Green 
 •V. Abraham. 43 Ark. 420; Stevens v. 
 Hampton, 46 Mo. 404; Hainey v. Alberry, 
 73 Mo. 427; Hammers v. Dole,6i 111. 307; 
 Dussaume v. Burnett, 5 Iowa, 103; Wil- 
 son V. Traer, 20 Iowa, 231; Barney v. 
 Sutton, 2 Watts (Pa.), 31; Withers v. 
 Baird, 7 Watts (Pa.), 227; s. c, 32 Am. 
 Dec. 754; Hastings v. Vaughn, 5 Cal. 315; 
 Price V. McDonald, i Md. 403; Johns v. 
 Scott, 5 Md. 81; Beauman v. Whitney, 
 20 Me. 413; Shults v. Moore, i McLean 
 (U. S.). 520. 
 
 The deed is good as between the par- 
 ties, and should prevail against subse- 
 quent deeds to those who had actual 
 notice. Stevens v. Hampton, 46 Mo. 404; 
 Dussaume v. Burnett. 5 Iowa, 103; Bea- 
 man v. Whitney. 20 Me. 413; Caldwell v. 
 Head, 17 Mo. 561; Cooly v. Rankin, 11 
 Mo. 647. 
 
 2. Gitting v. Hall, i H. & J. (Md.) 14; 
 s. c. 2 Am. Dec. 502; Johns v. Reardon, 
 3 Md. Ch. 57; Hurris v. Burton, 4 Harr. 
 (Del.) 66; Share v. Anderson, 7 Serg. & 
 R. (Pa.)43; s. c, loAm. Dec. 421; How- 
 ard, etc., Assoc. V. Mclntyre, 3 Allen 
 (Mass.), 572; Hughes v. Wilkinson, 37 
 Miss. 482; Garrison v. Hayden, i J. J. 
 Marsh. (Ky.) 222; McCuUoch v. Myers, 
 I Dana (Ky.), 522; Dickerson v. Talbot, 
 
 14 B. Mop. (Ky.), 60; Hedger v. Ward, 
 
 15 B. Mon. (Ky.) 106; Moore v. Vance, 
 I Ohio, 12; Lynch v. Livingston, 8 Barb. 
 (N. Y.) 463; 6 N. Y. 422; Thurman v. 
 Cameron, 24 Wend. (N. Y.) gi; Jackson 
 V. Hunter, i Johns. (N. Y.) 495; Jack- 
 son V. Colden, 4 Cow. (N. Y.) 266. 
 
 See, as to power of officers to take ac- 
 knowledgments. outside of county or ju- 
 
 risdiction. Learned v. Riley, 14 Allen 
 (Mass.), log; Odiorne 71. Mason, 9 N. H. 
 30; Duly V. Brooks, 30 Mo. 515; Biscoe 
 V. Byrd, 15 Ark. 655; Hughes v. Wilkin- 
 son. 37 Miss. 482; Crumbaugh v. Kugler, 
 2 Ohio St. 373; Moore v. Moore, 3 Ohio 
 St. 154; Hopkins v. Menderback, 5 Johns. 
 (N. Y.) 231; Jackson v. Colden, 4 Cow. 
 (N. Y.) 266; Colton V. Seavey, 22 Cal. 
 496. 
 
 If no place appears in the certificate it 
 is presumed that the officer acted within 
 his jurisdiction. Rockleff v. Norton, 19 
 Me. 279; Bradley v. West, 60 Mo. 33; 
 Hu.xley v. Harrold, 62 Mo. 516; Sidweli 
 V. Birnev. 6g Mo. 144; Dunlap v. Daugh- 
 erty, 20 111. 3g7; Morrison v. White, 16 
 La. Ann. 100; Carpenter v. Dexter, 8 
 Wall. (U. S.) 513- 
 
 The instrument may be referred to aid 
 the certificate if no locality appears. 
 Brooks V. Chaplin. 3 Vt. 281; s. c, 23 
 Am. Dec. 2og; Fuhrman v. Loudon, 13 
 S. & R. (Pa.) 386; =. c. 15 Am. Dec. 608; 
 Truluck V, Peeples, i Ga. 3. Or parts of 
 the certificate' itself, such as the caption, 
 seal, the accompanying certificate, from 
 another State, of official character, etc. 
 Sidweli V. Birney. 6g Mo. 144; Robidoux 
 V. Cassilegi, 10 Mo. App. 516; Chiniquy 
 V. Catholic Bishop, etc., 41 111. 148; Dun- 
 lap V. Daugherty, 20 III. 3g7; Hardin v. 
 Osborne, 60 111. 93; Wright v. Wilson, 17 
 Mich. .192; Adams v. Medsker, 25 W. Va. 
 12S. Compare Willard v. Cramer. 36 
 Iowa, 22; Hardin v. Kirk, 49 111. 153. 
 
 The omission of the venue in an ac- 
 knowledgment taken by a justice of the 
 peace. Held, obviated by proof that 
 such officer was' at the time a justice of 
 the peace in the county where it was 
 taken, and as such took it. Also that 
 judicial notice is taken as to justices of 
 the peace by the courts in the county. 
 Graham v. Anderson, 42 111. 514. See; 
 Irving V. Brownell, 11 111. 402; Dunlap v. 
 Daugherty. 20 111. 397; Harding v. Os- 
 borne, 60 111. 93; Scott If. Gallagher, 1 1 S. 
 & R. (Pa.) 347. 
 
 The name of the county where the 
 acknowledgment is taken must appear. 
 Willard v. Cramer, 36 Iowa, 22: Dunlap 
 V. Daugherty, 20 111. 397; Chiniguy v. 
 Bishop of Chicago. 41 111, 148: also the 
 State, Hardin v. Osborne, 60 111. 93. 
 
 3. The proof of fraud must be clear 
 and convincing. Jackson v. Colden, 4 
 Cow. (N, Y.) 266; Meyer v. Gossett, 38 
 46 
 
The Certificate. 
 
 ACKNO WLEDGMENT. 
 
 The Certificate, 
 
 4. The Certificate — The certificate is legal evidence of the ex- 
 ecution of the deed.^ The ofificial character of the person taking 
 the acknowledgment must appear in the certificate, and when so 
 appearing is /rma-_/h:«V evidence of his authority* and jurisdic- 
 
 Ark. 377; Miller z/. Wentworth, 82 Pa. he himself was the clerk of a court of 
 
 St. 280; Johnson v. Van Velsor, 43 Mich. 
 ^08; Hourtienne v. Schnoor, 33 Mich. 
 274; Barnett v. Proskauer, 62 Ala. 4S6; 
 Stevens w. Hampton, 46 Mo. 404. 
 
 1. Young V. Duvall, lOg U. S. 573. 
 
 S. Thompson v. Morgan, 6 Minn. 292; 
 Baze V. Arper, 6 Minn. 220; Thurman v. 
 Cameron, 34 Wend. (N. Y.) 87; Trustees 
 V. McKechnie, 90 N. Y. 618; Belo 7/. 
 Mayer, 79 Mo. 67; Harding v. Curtis, 
 45, 111. 252; Irving V. Brownell, 11 
 III. 402; Wright V. Bundy, 11 Ind. 
 398; Johnson w. Haines, 2 Ohio, 55 s. c. ; 
 15 Am. Dec. 533; Evans v. Lee, 11 Nev. 
 194; Bell V. Fry, 5 Dana (Ky.), 341; 
 Coles V. Miller, 8 Gratt (Va.) 6; Hassler 
 a. King, 9 Gratt. (Va.) 115; Tuten v. 
 Gazen, 18 Fla. 751; Ruggles v. Bucknor, 
 I Paine (U. S.),'358; Carpenter z/. Dexter, 
 8 Wall. (U. S.) 513. 
 
 A notary's seal is evidence of his offi- 
 cial character. Harding v. Curtis, 45 
 III. 252. 
 
 Where a certificate contains no evi- 
 dence of the official character of the offi- 
 cer, such character may be proved ali- 
 unde. Bennet v. Paine, 7 Watts (Pa.), 
 334; s. c, 32 Am. Dec. 765. See Jef- 
 freys V. Callies, 4 Dana (Ky.), 470; Van- 
 ness z;. Bank, 13 Pet. (U. S.)2i; Shults 
 V. Moore, i McLean (U. S.), 520. 
 
 A commissioner appointed by the gov- 
 ernor of a State to take acknowledg- 
 ments in another State is an officer of 
 the State from which he derives his ap- 
 pointment. The courts of that State 
 are bound to take judicial notice of his 
 official acts, and these require no other 
 authentication than his seal of office. 
 Smith V. Van Gilder, 26 Ark. 527; Irving 
 •V. Brownell, li 111. 402; Vance v. Schuy- 
 ler,'6 111. 160. 
 
 But if the certificate does not state 
 that the commissioner is authorized to 
 take acknowledgments, the defect is 
 fatal. Uhler v. Hutchinson, 23 Pa. St. 
 no. 
 
 Acknowledgment of Deeds in Another 
 State — Official Character of the Person 
 taking it — How shown. — A deed for an 
 interest in land in Illinois was executed 
 by parties resident of another State, and 
 acknowledged by them before a justice of 
 the peace in such other State. The 
 county clerk of the proper county, in his 
 certificate of the official character of the 
 justice of the peace, failed to certify that 
 
 record. Held, that was not required, and 
 that the deed was admissible in evidence 
 without being so certified. The statute 
 relating to conveyances provides that 
 where a deed is acknowledged or proved 
 before a justice of the peace of another 
 State, there shall be added a certificate of 
 the " proper clerk," under the seal of his 
 office, of the official character of such jus- 
 tice of the peace. The "proper clerk" 
 in such section is the one in whose office 
 the evidence of the official character of 
 justices of the peace is kept and pre- 
 served by law, and he is not required to 
 certify that he is a clerk of a court of 
 record. Grand Tower, etc., Co. ». Gill, 
 III III. 541. 
 
 A certificate which recited that it was 
 made before the clerk of a county court, 
 and which bore the imprint of the seal of 
 said court, but failed to state, and it was 
 not otherwise shown, that said court was 
 a court of record, or that the clerk was 
 the holder of its seal, is defective. Fogg 
 V. Holcomb, 64 Iowa, 621. 
 
 A deed conveying land lying in West 
 Virginia, in which it is recited that the 
 grantors are "of the county of Fayette, 
 in the State of Pennsylvania," with a 
 certificate of two justices of its acknowl- 
 edgment before them indorsed thereon, 
 headed "Fayette County, ss.;" and also 
 accompanied by a certificate under the 
 seal of the Court of Common Pleas of 
 Fayette County, State of Pennsylvania, 
 that the said two justices were at the time 
 of said acknowledgment of Fayette 
 County, in the State of Pennsylvania, 
 was properly admitted to record in this 
 State upon said certificates, it sufficiently 
 appearing therefrom that the "Fayette 
 County" mentioned was of the State of 
 Pennsvlvania. Adams v. Medsker, 25 W. 
 Va. 128. 
 
 The Wisconsin Statute, 1858, as amend- 
 ed 1859, did not prescribe the form of a 
 certificate of acknowledgment of a deed 
 executed out of a State before a notary 
 public, or require it to be made in ac- 
 cordance with the laws of the place where 
 it was made; and such a certificate is suf- 
 ficient where it would have been in sub- 
 stantial compliance with the laws of this 
 State, if made here. Where, therefore, 
 a deed of substitution by an attorney in 
 fact to convey land was acknowledged 
 before a notary public in the District of 
 
 147 
 
The Certificate. 
 
 ACKNO WLEDGMENT. 
 
 The Certificate-. 
 
 tion,^ and the certificate, in the absence of fraud, is conclusive of 
 the facts recited.* The evidence of official character may appear, 
 either in the body of the certificate or in the signature.^ 
 
 Columbia, and the notary's certificate The following cases hold that the cer- 
 failed to recite, as required by the laws of tificate is on\y prima-facie evidence of the- 
 
 Congress then in force in said district, 
 that the grantor named in the deed was 
 well known to him, or that his identity 
 was proved, etc., held, that the certificate 
 was sufficient. Knight v. Leary, 54 Wis. 
 460. 
 
 See generally Livingston v. McDonald, 
 g.Ohio, 168; Johnson v. Haines, 2 Ohio, 
 55; De Segond z/. Culver. 10 Ohio, 188; 
 Ewing V. Savary, 3 Bibb. (Ky.) 235; Bell 
 V. Fry, 5 Dana (Ky.), 341; Harding v. 
 Curtis, 45 111. 252; Dawson v. Hayden, 
 67 111. 52; Adams v. Bishop, 19 111. 395; 
 McCormick v. Evans, 33 111. 327; Hope 
 V. Sawyer, 14 111. 254; Buckmaster v. 
 Job, 15 111. 328; Bennet v. Paine, 7 
 Watts (Pa.), 334; Scott v. Gallagher, 11 
 S. & R. (Pa.) 347; Hultz V. Ackley, 63 
 Pa. St. 142; Crispen v. Hannavan, 50 
 Mo. 415; Smith v. Van Gilder, 26 Ark. 
 527; Coles V. Miller, 8 Gratt. (Va.) 6; 
 Hasslerz'. King, g Gratt. (Va.) 115. Ea- 
 ton V. Woydt, 32 Wis. 277; Wells v. At- 
 kinson, 24 Minn. 161; Morton v. Smith, 
 
 2 Dill. (U. S.) 316; Willink v. Miles, Pet. 
 C. C. 429. 
 
 1. Rockleff V. Morton, 19 Me. 274; 
 Bradley v. West, 60 Mo. 33. 
 
 2. Wrights'. Bundy, 11 Ind. 398; Mc- 
 Neely v. Rucker, 6 Blackf. (Ind.) 391; 
 Hill V. Bacon, 43 111. 477; Monroe v. 
 Poorman. 62 111. 528; Liclcmon v. Hard- 
 ing, 65 III, 505; Kerr v. Riissell, 69 111. 
 666; s. c, 18 Am. Rep. 634; Russell v. 
 Baptist Theo. Sem., 73 111. 337; Tunison 
 V. Chamblin, 88 111. 379; Baldwin v. 
 Snowden, 11 Ohio St. 203; Haftley v. 
 Frosh, 6 Tex. 208; Smith v. McGuire, 67 
 Ala. 34; Johnson v. Wallace, 53 Miss. 
 331; s. c, 24 Am. Rep. 699; Stone 71. 
 Montgomery, 35 Miss. 83; Allen v. Le- 
 noir, 53 Miss. 321; Meyer v. Gossett, 38 
 Ark. 377; Miller v. Wentworth, 82 Pa. 
 St. 280; Heeter v. Glasgow, 79, Pa. St. 
 79; Hall V. Patterson,, 51 Pa. St. 289; 
 Michener v. Cavender. 38 Pa. St. 334; 
 Louden v. Blythe, 27 Pa. St. 22; Shrader 
 V. Decker, 9 Pa. St. 14; Barnett v. Bar- 
 nett, 15 Serg. & R. (Pa.) 72; Jamison o. 
 Jamison, 3 Whart. (Pa.) 457; Withers v. 
 Baird, 7 Watts (Pa.), 227; Priest !>. Cum- 
 mings, 16 Wend. (N. Y.) 617; Tooker v. 
 Sloan. 30 N. J. Eq. 394; Greene v. God- 
 frey, 44 Me. 25; Bissett v. Bissett,'! H. 
 & McH. (Md.) 211; Ridgelevz/. Howard, 
 
 3 H. & McH. (Md.) 321; Young w. Du- 
 val, 109 U. S. 573; Paxton v. Marshall, 
 18 Fed. Repr. 3'6i. 
 
 facts recited, but it will be found on ex- 
 amination that the cases generally involve, 
 questions of fraud, duress, or failure to 
 observe the requirements of statute. 
 Jackson v. Schoonmaker, 4 Johns. (N. Y.)' 
 161; Jackson v. Hayner, 12 Johns. (N. Y.) 
 468; Jackson v. Cairns, 20 Johns. (N. Y.). 
 300; Jackson v. Perkins, 2 Wend. (N. 
 Y.) 308; People V. Galloway, 17 Wend. 
 (N. Y.) 540; Thurman -j. Cameron. 24. 
 Wend. (N. Y.) 87; Gillett v. Stanley, i 
 Hill (N. Y.), 121; Sanfordz/. McLean, 3, 
 Paige (N.Y.), 122; Knowles z/. McCamly, 
 10 Paige (N. Y.), 346; Linsley «/. Brown, 
 13 Conn. 192; Smith v. Ward, 2 Root 
 (Conn.), 378; s. c, i Am Dec. 80; Marsh 
 V. Mitchell, 26 N. J. Eq. 497; Louden v. 
 Blythe, 16 Pa. St. 532, 27 Pa. St. 22; 
 Dodge V. Hollinshead, 6 Minn. 25;, 
 Dewey v. Campau, 4 Mic^. 565; Stevens 
 V. Doe, 6 Blackf. (Ind.) 475; Bailey v. 
 Landingham,53 Iowa, 722; Ray v Crouch, 
 10 Mo. App. 321; Steffen v. Bauer, 70- 
 Mo. 399; Eysterw. Hathaway, 50 III. 521;. 
 Smith V. McGuire, 67 Ala. 34; Allen w. 
 Lenoir, 53 Miss. .321; Cent. Bank Vj- 
 Copeland, 18 Md. 305; Lucas v. Cobbs| 
 I Dev. & B. (N. Car.) 228; Phillips v^ 
 Green, 3' A. K. Marsh (Ky.), 7; Wood- 
 head V. Foulds, 7 Bush (Ky.), 222; Ford' 
 V. Teal, 7 Bush (Ky.), 156; Young v. 
 Duvall, 109 U. S. 573. 
 
 A certificate which does not clearly 
 show that it was issued by an officer 
 duly authorized is fatally defective, Cas- 
 sell ». Cooke, 8 Serg. & R. (Pa.) 268; s. 
 c, II Am. Dec. 610. 
 
 A commissioner's certificate is pre- 
 sumptive evidence of the execution and 
 acknowledgment of a deed out of the 
 State. Hultz v. Ackley, 63 Pa. St. 142. 
 
 An officer who has taken an acknowl- 
 edgment may issue the certificate at any 
 time thereafter while he remains in office, 
 provided rights of third parties have not, 
 intervened, Hannon v. Magee, 57 Miss. 
 410. 
 
 3. Johnson v. Haines, 2 Ohio, ^78; s. 
 c, 15 Am. Dec. 533; Cassell v. Cooke„ 
 8 Serg. & R. (Pa.) 368; s. c, 11 Am. 
 Dec. 610. 
 
 A defective or informal certificate of 
 acknowledgment, to which the officer's 
 name is signed, may operate as an attes- 
 tation; but this effect cannot be allowed 
 to a printed form of certificate to which 
 his name is not signed, although his 
 name and style of office are written by 
 
 148 
 
The Certificate. 
 
 ACKNO WLEDGMENT. 
 
 The Certificate^ 
 
 An officer cannot impeach his certificate.* 
 
 Nothing will be presumed in favor of a certificate. It must- 
 comply substantially with the statutory requirements, and state- 
 all the facts necessary to show valid .official act,** Thus, an ex- 
 amination made in a language the person did not understand is 
 not valid. ^ 
 
 Officers have the right, or may be compelled by mandamus, to 
 correct at any time a mistake in their certificate ; and when so 
 amended it will have the same effect as if it had been properly 
 made at first.* The omission of unimportant words is usually 
 
 him in the body of the paper. Carlisle 
 V. Carlisle. 78 Ala. 542. 
 
 As to what constitutes a description of 
 official character, see Sparrow v. Hovey, 
 41 Mich. 708; Final v. Backus, 18 Mich. 
 218; Livingston i/. McDonald, 9 Ohio, 
 j68; Rowley v. Berrian, 12 111. 200; 
 Mclntire v. Ward, 5 Binn. (Pa.) 296; s. 
 c, 6 Am. Dec. 417. 
 
 In Van Ness v. Bank, 13 Pet. (U. S.) 
 17, construing a Maryland statute, it was 
 held that no description of official 
 character is necessary. 
 
 1. A mortgage bore the notarial seal 
 and signature of " S. S," but S. S. testi- 
 fied that he never affixed his seal to it, 
 and that he believed himself to have been 
 the only S. S. notary in Cincinnati. 
 Held, that the i&a\ prima facie proved 
 itself, and that the presumption in favor 
 of the deed was not rebutted. Wright v. 
 Bundy. 11 Ind. 398. See Stone v. Mont- 
 gomery, 35 Miss. 83. Compare Garth v. 
 Fort, 15 Lea (Tenn.). 683. 
 
 3. Jacoway v. Gauli, 20 Ark. igo; 
 McDaniel v. Needham, 61 Tex. 269. As 
 to what is a substantial compliance with 
 the statute, see Monroe v. Arledge. 23 
 Tex. 478; Belcher v. Weaver, 46 Tex. 
 293; Watkins v. Hall, 57 Tex. i; Tubbs 
 V. Gatewood, 26 Ark. 128; Cavender v. 
 Smith, 5 Iowa, 157; Tiffany v. Glover; 3 
 Green (Iowa), 387; DickerSon. v. Davis, 
 .12 Iowa, 353; Newman v. Samuels, 17 
 Iowa, 528; Todd v. Jones, 22 Iowa, 146; 
 Rosenthal v. Griffin, 23 Iowa, 263; 
 Robson V. Thomas. 55 Mo. 581: Alex- 
 ander V. Merry, 9 Mo. 510; Spitrnagle 
 V. Vanhersch, 13 Neb. 338; Becker v. 
 Anderson, 11 Neb. 497; Bigelow v. 
 Livingston, 28 Minn. 57; Wells v. 
 Atkinson, 24 Minn. 161; Knight v. 
 Leary, 54 Wis. 459: Hiles v. LaFlesh, 
 59 Wis. 465; Wilson v. Henry, 40 Wis. 
 594; Calumet, etc.. Co. v. Russell,, 68 
 III. 426: Alvis V. Morrison. 63 111. 181; 
 Harvey v. Dunn, 89 111. 585; TuUy v. 
 Davis. 30 111. 103; Owen v. Norris, 5 
 Blackf. (Ind.) 479; Nelson v. Graff. 44 
 Mich. 433; Hopkins v. Delancy, 8 Cal. 
 
 85; Henderson v. Grewell. 8 Cal. 581; 
 Bryan v. Ramirez, 8 Cal. 461 ; Welch v. 
 Sullivan, 8 Cal. 511; Woodj;. Cochrane, 
 39 Vt. 544; Chandler v. Spear, 22 Vt. 
 388; Sheldon u. Stryker, 42 Barb. (N. 
 Y.) 284; Drye v. Cook, 14 Bush (Ky.), 
 45g; Davis v. Bogle, ii Helsk. (Tenn.) 
 315; Clements v. Pearce. 63 Ala. 284; 
 Barnett v. Proskauer, 62 Ala. 486; 
 Hobson V. Kissam. 8 Ala. 357; Basshar 
 V. Stewart. 54 Md. 376; Wiarner v. 
 Hardy, 6 Md. 525; Morse v. Clayton, 21 
 Miss. 373; Kelly p. Calhoun, "95 U. S. 
 710; Carpenter v. Dexter, 8 Wall. (U. 
 S.) 513; Talbot V. Simpson, Piet. C. C. 
 188. 
 
 The following cases hold that the 
 statute must be strictly complied with: 
 Wetmore v. Laird, 5 Biss. (U. S.) 160; 
 Knighton v. Smith, i Oregon, 276; 
 Trammel v. Thurmond, 17 Ark. 203; 
 TuUy V. Davis, 30 111. 103; Myers ti. 
 Boyd, 96 Pa. St. 427; Rogers v. Adams, 
 66 Ala. 600; Ridgely v. Howard, 3 H. & 
 McH. (Md.) 321; Dewey i/. Campau, 4 
 Mich. 565; Buell v. Irwin, 24 Mich. 145; 
 Mount V. Kesterson. 6 Coldw. (Tenn.) 
 452; Wickersham z;. Reeves, i Iowa, 413. 
 
 Where a commissioner takes an ac- 
 knowledgment to a conveyance of land, 
 he must comply with the statute of the 
 State where the land is located. Kel- 
 ler -/. Moore. 51 Ala. 340; Brannon v. 
 Brannon, 2 Disney (Ohio), 224. 
 
 3. Fisher v. Meister, 24 Mich. 447. 
 The examination may be made by an 
 
 interpreter, but he must be properly 
 sworn. Dewey v. Campau, 4 Mich. 565; 
 Norton v. Meader, 4 Sawy. (U. S.) 603. 
 See also De Arnaz v. Escandon, 59 Cal. 
 486. Compare, as to swearing of inter- 
 preter, Walter v. Weaver, 57 Tex. 569. 
 
 4, Jordan v. Corey, 2- Ind. 3S5; s. c, 
 52 Am Dec. 516; Hutchinson v. Ains- 
 worth, 63 Cal. 286; Wannall v. Kern. 51 
 Mo. 150; Miller v. Powell, 53 Mo. 252; 
 Skinner v. Fulton. 39 III. 484; Calumet, 
 etc., Co. V. Russell, 68 III. 426; Bowlbv 
 V. Thunder, 3 Atl. Repr. (Pa.) 588; Fail 
 V. Roper, 3 Head (Tenn.), 485; Brinkley 
 
 149 
 
The Certificate. 
 
 ACKNO WLEDGMENT. 
 
 Correction. 
 
 not fatal to the validity of the certificate ;i but parol evidence 
 
 ■V. Tomeny, g Baxt. (Tenn.) 275; Elliott 
 V. Peirsol, i Pet. (U. S.) 328. -Compare 
 Merritt v. Yates, 71 111. 636; s. c, 22 
 Am. Rep. 128; O'Farrall v. 'Simplot, 4 
 Iowa, 381. 
 
 If proper privy examination was held, 
 and an incorrect certificate made by mis- 
 take, it may be corrected; but if the re- 
 quired examination was not properly 
 made, the certificate cannot be corrected. 
 Garth v. Fort, 15 Lea (Tenn.), 683; 
 Looney v. Adamson, 48 Tex. 621; John- 
 son V. Taylor, 60 Tex. 360. 
 
 The officer may be compelled by man- 
 damus to correct his certificate, but a 
 court of equity has no power to correct 
 his'mistakes. Wannall v. Kern, 51 Mo. 
 365; Miller w. Powell, 53 Mo. 252. This 
 case is criticised in Gilbraith v. Gallivan, 
 78 Mo. 452. In Simpson v. Montgom- 
 ery, 25 Ark. 365, it was held that equity 
 would relieve as against such mistakes. 
 See Johnson v. Taylor, 60 Tex. 360; 
 Dalton V. Rust, 22 Tex. 133. 
 
 A justice of the peace cannot be com- 
 pelled by mandatnus to correct his certifi- 
 cate. Merritt v. Yates, 71 111. 636; s. c, 
 22 Am. Rep. 128. 
 
 A notary having made and delivered a 
 defective certificate, cannot amend it in 
 the absence of the grantor. Enterprise 
 Transit Co. v. Sheedy, 103 Pa. St. 492; 
 s. c, 49 Am. Rep. 130; Merritt z/. Yates, 
 71 111. 636; s. c, 22 Am. Rep. 128. 
 
 An ofBcer cannot correct his certificate 
 after his term of office has expired. 
 Gilbraith v. Gallivan, 78 Mo. 452. Com- 
 pare Grotenkemper v. Carver, 4 Lea 
 (Tenn.), 375. 
 
 When an acknowledgment is properly 
 made but defectively certified, a party 
 interested may have an action to correct 
 the certificate; and where, in foreclosure 
 proceedings, objection is made to the 
 introduction of the mortgage on the 
 ground that the certificate is defective, 
 the plaintiff should be permitted to amend 
 the complaint and prove that the ac- 
 knowledgment was made in compliance 
 with the statute, and have judgment re- 
 forming the certificate. Hutchinson v. 
 Ainsworth, 63 Cal. 286. 
 
 In most cases the certificate may be 
 admitted in evidence, although the mis- 
 take has not been corrected. Merchants' 
 Bank V. Harrison. 39 Mo. 433; Sharps'. 
 Hamilton, 12 N. J. L. 109; Northrop v. 
 Wright, 7 Hill (N. Y.), 476. 
 
 Under the Ohio statute of 1857 an 
 officer may correct his mistalces. Kil- 
 bourn v. Fury. 26 Ohio St. 153. 
 
 In Tennessee the officer may correct 
 
 his certificate by making oath in open 
 court. Brinkly v. Tomeny, 9 Baxt. 
 (Tenn.) 275; Fall v. Roper, 3 Head 
 (Tenn.), 485; Garth v. Fort, 15 Lea 
 (Tenn.), 683. 
 
 Art. 4353 of the Texas R. S. does not 
 permit the validating of conveyances 
 when in fact the law had not been com- 
 plied with in taking the acknowledgment, 
 but gives only a new remedy for ascer- 
 taining the fact that the acknowledgment 
 was in fact properly made. Johnson v. 
 Taylor, 60 Tex. 360. 
 
 Presumption after Twenty Years' Regis- 
 tration. — Where the deed has been regis- 
 tered for twenty years, but certificate is 
 defective, the probate shall be presumed 
 to be proper, and this presumption is 
 conclusive and cuts off all inquiry on the 
 subject. Strbud v. McDaniel, 12 Lea 
 (Tenn.), 617 See Riecke v. Westenhoff. 
 10 Mo. App. 358. But lapse of time will 
 not cure a certificate relating to trusts. 
 Fell V. Young, 63 III. 106. 
 
 1. Omissions which have heen held not 
 Fatal. — "Personally" before the word 
 known. Rosenthal v. Griffin. 23 Iowa, 
 263; Todd 11. Jones, 22 loWa, 146; Hop- 
 kins V. Delany, 8 Cal. 85; Welch v. Sul- 
 livan, 8 Cal. 511; Alexander v. Merry, 9 
 Mo. 514; Davis v. Bogle, 11 Heisk. 
 (Tenn.) 315. 
 
 Of the words of identity. Northrop 
 v. Wright, 7 Hill (N. Y.), 476; Hunt v. 
 Johnson, 19 N. Y. 279; Watjjins v. Hall, 
 57 Te.x. i; Hiles v. La Flesh, 59 Wis. 
 465; Mount V. Kesterson, 6 Coldw. 
 (Tenn.) 452; Hornbeck z*. Mut. Building 
 Ass'n. 88 Pa. St. 64; Bell v. Lyle, 10 
 Lea (Tenn.), 44. 
 
 Of the surname. Chandler w. Spear, 
 22 Vt. 388. 
 
 The word "seal." Nichols v. Stew- 
 art. 15 Tex. 226. 
 
 Of the grantor's name, when it can be 
 supplied from instrument or signature. 
 Wise V. Postlewait, 3 W. Va. 452; Phil- 
 lips V. Ruble, Litt. Sel. Cas. 221; Mag- 
 ness V. Arnold, 31 Ark. 103; Sanford v. 
 Eulkley, 30 Conn. 344; Wilcoxon u. Os- 
 born, 77 Mo. 621; Lincoln v. Thompson, 
 75 Mo. 613. Or the surname. Chandler 
 V. Spear, 22 Vt. 388. See Omissions, 
 Fatal, post. 
 
 "Given under my hand and seal of 
 office" where the official seal is in fact 
 affixed. Webb v. Huff, 61 Tex. 678. 
 
 " And deed." Spitznagle v. Vanhessn, 
 13 Neb. 338. 
 
 " Her act and deed." Stuart v. Dutton, 
 39 111. 91; Solyer v. Romanet, 52 Tex. 
 562. 
 
 150 
 
The Certificate. 
 
 ACKNO WLEDGMENT. 
 
 Omissions, 
 
 is not admissible to prove an essential fact which has been 
 
 "And acknowledged the said mort- 
 gage.". Basshor v. Stewart, 54 Md. 376. 
 
 Of the name of the State. Robidoux 
 V. Cassilegi. 10 Mo. App. 516. Or of the 
 county where it is expressed in the deed. 
 Furhman v. Loudon, 13 S. & R. (Pa.) 
 3S6; s. c, 15 Am. Dec. 60S; Ansier v. 
 Schieffelin, 72 Pa. St. 106; s. c, 13 Am. 
 Rep. 659. Or of the place. Rackleff v. 
 Norton, 19 Me. 274; Huxley v. Harold, 
 62 Mo. 516. 
 
 "Fully" before ".known" in wife's 
 acknowledgment. Hartshorn v. Dawson, 
 79 111. loS. 
 
 " Known," in " being made fully 
 known," etc. Hornbeck v. Mutual, etc., 
 Ass'n, 88 Pa. St. 64. 
 
 "Husband" where the blank is left 
 unfilled. Gorman v. Stanton, 5 Mo. App. 
 
 585. 
 
 "Be" in the sentence "known to me 
 to — " Johnson v. Badger, etc., Co., 13 
 Nev. 351. 
 
 ' ' Before me" after the word ' ' acknowl- 
 edged." Gordon v. Leech, 81 Ky. 229. 
 
 "Are" after "who." Hartshorn ii. 
 Dawson, 79 111. 108. 
 
 " Consideration" in the sentence "for 
 the consideration and purposes." Monroe 
 V. Arledge, 23 Tex. 478. 
 
 The title of a trustee. Dail v. Moore, 
 SI Mo. 589. 
 
 "His" before "free and voluntary 
 act." Dickerson v. Davis, 12 Iowa, 353. 
 
 " Appeared " after the word " person- 
 allv." Scharfenburg ■v. Bishop, 35 Iowa, 
 60.' 
 
 " Sealed and delivered" in wife's ac- 
 knowledgment. Barton v. Morris. 15 
 Ohio, 408; Mullins tj. Weaver, 57 Tex. 
 5. Compare Toulmin v. Heidelberg, 32 
 Miss. 268. 
 
 " Seal" before " of ofBce" where stat- 
 ute does not require a seal. Nichols v. 
 Stewart, 15 Tex. 226. 
 
 " Hand and seal " where seal was actu- 
 ally attached. Harrington v. Fish, 10 
 Mich. 415; Webb v. Haff, 61 Tex. 677. 
 
 Omitting "out of presence" when 
 " separate and apart " is used. Nippel ii. 
 Hammond, 4 Colo. 211. 
 
 The following acknowledgment held 
 sufficient: "State of Arkansas, Pulaski 
 County. On this, the nineteenth day of 
 May, 1877, before me, J. L. Bay, a notary 
 public in and for said county, personally 
 appeared Theodore B. Mills and Hannah 
 A. Mills, his wife, grantors in the fore- 
 going deed of conveyance, to me well 
 known, who acknowledge that he had 
 executed the same for the consideration 
 and purposes mentioned. And on this 
 
 day voluntarily appeared before me 
 
 , to me well known as the 
 
 person whose name appears upon the 
 within and foregoing deed, and in the 
 absence said husband de- 
 clared that had of her own free 
 
 will executed the foregoing deed for the 
 purposes therein contained and set forth, 
 and that she relinquishes her dower in 
 and to the property conveyed freely and 
 without compulsion or undue influence 
 of her husband. Witness," etc. (Signed 
 and sealed by the notary.) Donahue z'. 
 Mills, 41 Ark. 421. Compare Hartshorn 
 V. Dawson, 79 111. 108; Merritt v. Yates, 
 71 111. 636; s. c, 22 Am. Rep. 128. 
 
 Omissions which have heen held Fatal, 
 — "And does not wish to retract" in 
 wife's acknowledgment. Linn v. Patton, 
 10 W. Va. 187; La Bourgeoise v. Mc- 
 Namara, 5 Mo. App. 576. 
 
 "For the purposes herein set forth." 
 Little V. Dodge, 32 Ark. 453; Jacoway 
 V. Gault, 20 Ark. igo; Shryock v. Can- 
 non, 39 Ark. 434; Curfie v. Kerr, 11 
 Lea(Tenn.), 138. 
 
 "Known." Tully v. Davies, 30 111. 
 103. See Brinton v. Seevers, 12 Iowa, 
 389; Rogers v. Adams, 65 Ala. 600. 
 
 "Signed" in "signed, sealed, and de- 
 livered." Smith V, Elliott, 39 Tex. 201. 
 
 " 111 usage." Hawkins v. Burress, i 
 H. & J. (Md.)5i3. 
 
 "Acknowledged." Dewey v. Cam- 
 pau, 4 Mich. 565; Harnngton v. Fish, 
 10 Mich. 415; Newman v. Samuels. 17 
 Iowa. 528; Bowman v. Wettig, 39 III. 
 416; Pickneyij/. Burrage. 31 N.J. Eq. 21. 
 
 "Voluntary." Wickersham z/. Reeves. 
 I Iowa, 413; Newman v. Samuels, 17 
 Iowa, 528. 
 
 The words "of identity." Fryer v. 
 Rockefeller, 63 N. Y. 268: Forgarty v. 
 Finlay, 10 Cal. 239; Wolf v. Fogarty, 6 
 Cal. 224; Fell V. Young, 63 111. 106; Mur- 
 phy V. Williamson, 85 111. 149; Coburn v. 
 Herrington, 114 111. 104; Gove i'. Gather, 
 23 111. 634; Shephard v. Carriel, 19 111. 
 313; O'Ferrall v. Simplot, 4 Greene 
 (Iowa), 162; Smith v. Garden, 28 Wis. 
 685. 
 
 Statement of the private examination 
 of wife. Harty v. Ladd, 3 Oregon, 353; 
 Elliott ». Richardson. 9 Baxt. (Tenn,)293. 
 
 The omission of grantor's name. 
 Smith V. Hunt, 13 Ohio St. 260; Hayden 
 V. Wescott, II Conn, 129; Buell -v. Ir- 
 win, 24 Mich. 145. Or of wife's name. 
 Merritt v. Yates, 71 111. 636; s. c, 22 
 Am. Rep. 128; Trustees v. Davidson, 
 65 111. 124. 
 
 The insertion of grantee's name for 
 
 151 
 
Certificate. 
 
 ACKNO WLEDGMENT. 
 
 Omissions not Vital. 
 
 omitted ;* redundant words may be rejected if the certificate is com- 
 plete without them ;* and clerical or grammatical errors may be 
 corrected.^ The use of words of equivalent import will not invali- 
 date the certificate.* Words vital to the correctness of the: 
 
 ' that of grantor. Wood v. Cochrane, 39 
 Vt. 544. 
 
 Mistake in Christian-name of grantor. 
 Booihroyd v. Engles, 23 Mich. 19. 
 
 Omission of Christian-name of grantor 
 in the signature. Hiss v, McCabe, 45 
 Md. 77. . 
 
 "Sealed and delivered" in "signed, 
 sealed, and delivered." Toulman v. 
 Heidelberg, 32 Miss. 268. Compare 
 Barton v. Morris, 15 Ohio, 408. 
 
 A notary's certificate was insufficient 
 where the county for which the notary 
 was appointed was not appended in con- 
 nection with the words "notary public." 
 Willard v. Cramer, 36 Iowa, 22. 
 
 A certificate by a justice of the peace, 
 appended to a deed, which states that 
 the grantors, man and wife, appeared 
 before him, and that the wife, being ex- 
 amined apart, "acknowledged she signed 
 the said deed of her own free will and 
 accord, and without fear, constraint, or 
 persuasion of her husband, who all ac- 
 knowledged they signed, sealed, and de- 
 livered the same for the purposes therein 
 contained," is not a substantial compli- 
 ance with the requisitions of the statute, 
 and does not render the deed admissible 
 evidence without further proof. Boykin 
 V. Smith, 65 Ala. 294. 
 
 The omission of the word "considera- 
 tion" in the acknowledgment is fatal. 
 But where the execution is otherwise 
 proven at the trial it is admissible, not- 
 withstanding the defective acknowledg- 
 ment. Griesler v. McKennon. 44 Ark. 
 517; Wright w. Graham, 42 Ark. 140. 
 
 A certificate, formal in other respects, 
 which declares that the party whose 
 name appears to a deed to which the 
 certificate is attached appeared "and 
 
 acknowledged that " had signed, 
 
 sealed, and delivered the same, is not 
 sufficient.' The certificate should have 
 shown on its face that he, the one whose 
 name appeared, acknowledged that he 
 executed the same. Huff v! Webb, 64 
 Tex. 284; Buell v. Irwin, 24 Mich. 152. 
 
 1, Rollins V. Menager, 22 W. Va. 
 461; Ridgely ». Howard, 3 Har. & McH. 
 (Md.) 321; Montgomery v. Hobson, 
 Meigs (Tenn.), 437; Westbrooks v. Jef- 
 fers, 33 Tex. 86; Smith v. Elliott, 39 
 Tex. 201; Hays v. Hays, 5 Rich. L. (S. 
 Car.) 31; Barnett v. Barnett, 15 Serg. & 
 R. (Pa.) 72; Williams v. Baker, 71 Pa. 
 St. 476; Leckman v. Harding, 65 111. 
 
 port 
 correctness 
 
 505; Kerr v. Russell, 69 111. 666; s. c.,, 
 18 Am. Rep. 634; Ennor v. Thompson, 
 46 III. 215. 
 
 2. Stuart v. Button. 39 111. 91; Tour- 
 ville V. Pierson, 39 III. 446; Chester v. 
 Rumsey, 26 III. 97; Nelson v. Graff, 44 
 Mich. 433; Crowley v. Wallace. 12 Mo. 
 143; Whitney v. Arnold, 10 Cal. 531; 
 Bradford v. Dawson, 2 Ala. 203. 
 
 An acknowledgment as follows: "I 
 further certify that the said instrument is. 
 executed and proved or acknowledged 
 according to the laws of this State." The- 
 word "proved" is surplusage, as there 
 is no certificate of proof to which it can 
 apply. Nelson 7'. Graff, 44 Mich. 433. 
 
 3. As the words "foregoing mortgage"' 
 in the certificate to a deed. Ives v. Kim- 
 ball, I Mich. 308. Or if the certificate 
 bears prior or different date to the deed. 
 Gest V. Flock, 2 N. J. Eq. 108; Eaton w. 
 Trowbridge, 38 Mich. 454; Gorman w. 
 Stanton, 5 Mo. App. 585. 
 
 The use of the words ' ' a power of 
 attorney" in place of "deed." Hurt v, 
 McCartney, 18 111. 129. 
 
 No date. Lea v. Polk, etc., Co., 21 
 How. (U. S.) 493; Webb v. Huff, 61 Tex. 
 677; Wickes V. Caulk, 5 H. & J. (Md.). 
 36; Kelly V. Rosenstock, 45 Md. 389; 
 Brooks V. Chaplin. 3 Vt. 281; s. c, 23 
 Am. Dec. 209; Rackleff v. Norton, 19 
 Me. 274; Huxley v. Harrold, 62 Mo. 516. 
 
 Or grammatical errors. Frostburg, 
 etc., Ass'n v. Brace, 51 Md. 508. See 
 Merritt v. Yates, 71 111. 636; s. c, 22 
 Am. Rep. 128. Or the word " husband "^ 
 instead of "deed." Calumet, etc., Co. 
 V. Russell; 68 111. 426. 
 
 " Contract " for " retract." Belcher ». 
 Weaver, 46 Tex. 293; s. c, 26 Am. Rep. 
 267. 
 
 The insertion of the wrong county in: 
 caption. Angier v. Schieffelin, 72 Pa. 
 St. 106; s. c, 13 Am. Rep. 659. 
 
 Erasures and Interlineations. — See 
 Bowlby V. Thunder, 3 Atl. Repr. (Pa.) 
 588; Devinney v. Reynolds, i W. & S. 
 (Pa.) 328. 
 
 4. Jacoway v. Gault, 20 Ark. 190; De- 
 launay v. Burnett. 9 III. 454; Tiffany v. 
 Glover, 4 Iowa, 387; Cavender v. Smith, 
 5 Iowa, 157; Dickerson v. Davis. \t 
 Iowa, 353; Hall v. Gittings. 2 H. & J. 
 (Md.) 380; Alexander v. Merry. 9 Mo. 
 514; Chouteau v. Allen, 70 Mo. 290; 
 Sheldon v. Stryker, 42 Barb. (N. Y.) 284; 
 Jackson v. Gumaer, 2 Cow. (N. Y.) 552; 
 
 152 
 
"Certificate. 
 
 ACKNO WLEDGMENT. 
 
 Defects. 
 
 ■certificate cannot be supplied by intendment,^ a defective certificate 
 of acknowledgment may, from necessity, operate as a substitute 
 for the formal attestation of a witness, to prevent the instrument 
 being inoperative as a conveyance, because the officer before 
 whom its execution is acknowledged imperfectly certifies the 
 facts, from ignorance, mistake, or carelessness. In such cases, the 
 officer making the certificate becomes a witness, and his signature 
 an attestation.** 
 
 The omission of, or a mistake in, the date will not invalidate the 
 ■certificate.^ 
 
 Thurman v. Cameron, 24 Wend. (N. Y.) 
 187; Kelly V. Calhoun, 95 U. S. 710. 
 •Compare Butterfield v. Beall. 3 Ind. 203. 
 
 "Deposes and says" held equivalent 
 to "acknowledge.* Chouteau w. Allen, 
 70 Mo. 2go. 
 
 "Executed" to "signed, sealed, and 
 •delivered." Smith v. Williams, 38 Miss.' 
 48; Dorn V. Best. 15 Tex. 62; and, vice 
 •versa. Belcher v. Weaver, 46 Tex. 293 ; s. 
 c, 26 Am. .Rep. 267; Stuart v. Button, 
 39 111. 91; Little V. Dodge, 32 Ark. 453; 
 Tabbs V. Gatewood, 26 Ark. 128. 
 
 "Willingly" to "without any bribe, 
 threat, or compulsion." Belcher v. 
 Weaver, 46 Tex. 293; s. c, 26 Am. 
 Rep. 267. 
 
 ' ' Executed " to " act and deed." Sharp 
 ■V. Hamilton, 12 N. J. L. log. 
 
 "Legally authorized and assigned" to 
 "duly commissioned and sworn." Hall 
 ■V. Gittings, 2 H. & J. (Md.) 380. 
 
 " Freely and of her own accord " to 
 "freely as her voluntary act and deed." 
 Dundasw. Hitchcock, 12 How. (U. S.)256. 
 
 "For the purposes herein specified" 
 equivalent to "for the purposes therein 
 ■contained." Davis v. Bogle, 11 Heisk. 
 <Tenn.) 317- 
 
 " Separate and apart" equivalent to 
 ■"privily." Coombes v. Thomas, 57 
 Tex. 321. 
 
 "To be their act and deed for the uses 
 and purposes therein mentioned," equiv- 
 alent to "they signed, sealed, and de- 
 livered." Sharp V. Hamilton, 12 N. J. L. 
 109. 
 
 "Personally acquainted with" to 
 "know personally." Kelly i/. Calhoun, 
 95 U. S. 710. 
 
 " Acknowledge" when words of similar 
 import are used. Choteau v. Allen, 70 
 Mo. 290. 
 
 On the same paper, and following the 
 signatures to an assignment for the 
 benefit of creditors, was written a notary's 
 certificate of acknowledgment. It bore 
 the same date as the assignment, and 
 named as the persons acknowledging the 
 ones wlio apparently executed the assign- 
 
 ment. It stated that the persons named 
 were to the notary known " to be the in- 
 dividuals described in. and who executed, 
 the same," instead of the words "the 
 foregoing instrument." I/eld, thkt the 
 words •' the same" referred to the instru- 
 ment to which the certificate was ap- 
 pended, and sufficiently identified it; and 
 that the certificate showed a due ac- 
 knowledgment of the instrument. Smith 
 V. Boyd, loi N. Y. 473. 
 
 Where a tax deed is executed by a 
 deputy county clerk, an acknowledg- 
 ment reciting that such deputy county 
 clerk appeared before the acknowledging 
 officer, and that he acknowledged the 
 execution of the deed by him " as such 
 county clerk," Is sufficient; the words 
 "as such county clerk" meaning "as 
 such deputy county clerk." Ward v. 
 Walters, 63 Wis. 39. 
 
 Phrases held not to be equivalent: " I 
 am satisfied " not equivalent to " person- 
 ally known." Shepard v. Camel, ig 
 111. 313; Fryer w. Rockefifeller, 63 N. Y. 
 268. Compare Hiles v. La Flesh, 59 Wis. 
 
 465- 
 
 1. Newman zi. Samuels, 17 Iowa, 528; 
 Wickersham v. Reeves, i Iowa, 413; 
 Fogarty v. Finlay, 10 Cal. 23g; Jacoway 
 v.- Gault, 20 Ark. 190 ; Stanton v. Button, 
 2 Conn. 527; Hayden v. Wescott, II 
 Conn. 129; Short v. Conlee, 28 111. 2ig; 
 Tully V. Davis, 30 111, 103; Merritt v. 
 Yates, 71 111. 636: s. c, 22 Am. Rep. 
 128; Gaines !<. Catron, i Humph. (Tenn.) 
 514; Harrison z/. Wade, 3Coldw. (Tenn.) 
 505. 
 
 2. Sharpe v. Orme, 61 Ala. 263; 
 Rogers v. Adams, 66 Ala. 600; Carlisle 
 V. Carlisle, 78 Ala. 542. 
 
 3. Webb V. Huff, .61 Tex. 677; Irving 
 V. Brownell, 11 111. 402; Huxley v. Har- 
 rold, 62 Mo. 516; Sidwell v. Birney, 6g 
 Mo. 146; Racklefi v. Norton, ig Me. 
 274; Brooks V. Chaplin, 3 Vt. 281; s. c, 
 23 Am. Dec. 269: Gest v. Flock, i 
 Green's Ch. (N. J.) 108; Kelly v. 
 Rosenstock, 45 Md. 389; Wickes v. 
 Caulk, 5 H. & J. (Md.) 36; Trulock v. 
 
 153 
 
Certificate, 
 
 ACKNO WLEDGMENT. 
 
 Identity of Maker, 
 
 The identity of the party making the acknowledgnnent is an 
 essential feature, and must appear in the certificate. ^ The name 
 
 Peeples, i Ga. 3; Hobson v. Kissam, 8 
 Ala. 357; Bradford v. Dawson. 2 Ala. 
 203; Lea V. Polk, etc., Co., 21 How, (U. 
 S.) 493; Yorty v. Paine, 62 Wis. 154. 
 
 B, a married woman, joined with C, 
 her husband, and D, her brother, in a 
 mortgage covering her undivided interest 
 and the undivided interest of D in cer- 
 tain real estate; the mortgage was dated 
 April 23, 1874, and the acknowledgment 
 — which as to B was in the statutory 
 form of a married woman's separate 
 acknowledgment — was dated April 21, 
 1874. The mortage was recorded April 
 24, 1874, ^"d ^^^ given to secure a debt 
 contracted by D individually. Held, a 
 sale by virtue of it carried all the interest 
 of B in the premises. Hagenbuch v. 
 Phillips, 6 Eastern Repr. (Pa.) 802. 
 
 In Wickes v. Caulk, 5 H. & J. (Md.) 
 36, the deed offered in evidence was 
 dated the 6th of October, 1707, and the 
 acknowledgment was certified to have 
 been made on the 6th October, but 
 omitted to state the year, and the deed 
 was recorded on the 8th of January, 1707. 
 There, by inference and intendment, the 
 time of recording was made to correct 
 the date of the deed, and to supply the 
 particular year in the acknowledgment. 
 In Kelly v. Roseiistock, 45 Md. 389, the 
 mortgage bore date the 6th of August, 
 1872, but the pai-ticular day of the month 
 of August, 1872, upon which the ac- 
 knowledgment was made, was omitted to 
 be stated. Held, that by looking to the 
 date of the mortgage, and the clerk's 
 certificate endorsed thereon of the time 
 when it was filed for record, the particu- 
 lar day of the month when the acknowl- 
 edgment was made was with certainty 
 supplied. 
 
 A tax deed was executed February 5, 
 it)8i, but the certificate of acknowledg- 
 ment purported to bear date February 5, 
 1880. Held, that the mistake in the date 
 of the certificate did not invalidate the 
 deed, nor was the acknowledgment so 
 defective as to prevent the deed from 
 being lawfully recorded. Yorty v. Paine, 
 62 Wis. 154. 
 
 Where a mortgage was signed by the 
 husband, and beneath his signature 
 thereto the wife on the same day added: 
 " I hereby join in the execution of the 
 foregoing conveyance, in token that I 
 relinquish all claini of dower in said 
 premises," affixing her signature and 
 seal; to which a justice of the peace 
 added a certificate in these words: 
 "Sworn to and subscribed before me 
 
 this day," bearing date seventeen days 
 after the mortgage, — held, that the mort- 
 gage was neither attested nor acknowl- 
 edged, and that it was, therefore, inoper- 
 ative for any purpose. Dugger v. Col- 
 lins, 69 Ala. 324. 
 
 It is no objection to the filing of the 
 certificate of acknowledgment that the 
 date of the certificate is written on an 
 erasure. Anon., 16 C. B. 574. 
 
 1. Fryer v. Rockeffeller, 63 N. Y. 268; 
 Miller v. Link, 2 Thomp. & C. (N. Y.) 
 86; Pinckney v. Burrage, 31 N. J. L. 21; 
 Hayden v. Wescott, II Conn. 129; 
 Callaway v. Flash, 50 Mo. 420; Gamier 
 V. Barry, 28 Mo. 438; Wolf v. Fogarty, 
 5 Cal. 224; Bryan v. Ramirez, 8 Cal. 
 461; Henderson u. Grewell, 8 Cal. 581; 
 Fogarty w. Finlay, 10 Cal. 239; Kimball 
 V. Semple, 25 Cal. 440; Becker v. Quigg, 
 54 111. 390; Coburn v. Herrington, 114 
 111. 104; Lindley v. Smith, 46 111. 523; 
 TuUy V. Davis, 30 III. 103; Shepard Vi 
 Carriel, 19 111. 313; Gove v. Cather, 23 
 111. 634; Reynolds!/. Kingsbury, 15 Iowa, 
 238; Brinton v. Seevers, 12 Iowa, 389; 
 Smith V. Garden, 28 Wis. 685; Johnson 
 V. Walton, I Sneed (Tenn.)', 258; Fall v. 
 Roper, 3 Head (Tenn.). 485; Garnet v. 
 Stockton, 7 Humph. (Tenn.) 84; Peacock 
 V. Tompkins, l Humph. (Tenn.) 135. 
 Compare Sanford v. Bulkley, 3 Conn. 348. 
 
 An examination of the cases which 
 hold that the omission of words of 
 identity is not a fatal defect show that 
 there did not exist at the time a statute 
 requiring such personal identification, or 
 that the statute was substantially com- 
 plied with. Northrop v. Taylor, 7 Hill 
 (N. Y.), 476; Thurman v. Carneron, 24 
 Wend. (N. Y.) 87; Hunt v. Johnson. 19 
 N. Y. 279; West Point Iron Co. v. Rey- 
 mert, 45 N. Y. 703; Sheldon v. Stryker, 
 42 Barb. (N. Y.) 284; Warner v. Hardy, 
 5 Md. 525; Sanford v. Bulkley, 30 Conn. 
 344; Hopkins v. Delany, 8 Cal. 85; 
 Welch V. Sullivan, 8 Cal. 511; TuUy v. 
 Davis, 30 111. 103; Alexander v. Merry, 
 9 Mo. 514; People v. Cheeseman, 16 
 Am. & Eng. R. R. Cas. 400; s. c, 7 
 C0I9. 376; Rosenthal v. Griffin, 23 Iowa. 
 263; Todd V. .Jones, 22 Iowa, 146; Bell 
 V. Evans, 10 Iowa, 353. 
 
 The omission of the words of identity 
 can only be objected to by a subsequent 
 purchaser for value. Choteau v. Burlan- 
 do, 20 Mo., 482. 
 
 In the body of a deed, one of the grant- 
 ors was described as Robert P. McClin- 
 tock, and the deed was signed " R. 
 Parker McClintock." The certificate of 
 
 154 
 
Ceitificate. 
 
 ACKNO WLEDGMENT. 
 
 Identity of Maker. 
 
 of the grantor should appear, although it is now generally held 
 that if the name can be ascertained from the deed, the certificate 
 will be sustained.^ 
 
 A certificate of acknowledgment to a deed, made by the officer 
 merely on the assurance of another that the party executed it, is 
 a nullity.* 
 
 acknowledgment showed that Robert 
 P. McClintock acknowledged the deed. 
 Held, that this was sufficient to show he 
 and R. Parker McClintock were one and 
 the same person. Grand Tower, etc., 
 Co. V. Gil, HI 111. 541. 
 
 A sheriff's deed does not require the 
 words of identity. Ogden z'. Walters, 12 
 Kan. 282; Lamorque v. Langlais, 8 Mo. 
 328. 
 
 The officer is at liberty to judge for 
 himself as to what is a sufficient acquaint- 
 ance with the party to enable him to 
 certify to the identity of the party. 
 Wood z/. Bach, 54 Barb. (N. Y.) 134; 
 Nippel V. Hammond, 4 Colo. 211. See 
 Rexford v. Rexford, 7 Lans. (N. Y.) 6; 
 Jones V. Bach, 48 Barb. (N. Y.) 568. 
 
 In Tennessee the officer need not state 
 in a married woman's acknowledgment 
 that she is known to him. Bell v. Lyle, 
 10 Lea (Tenn.). 44. 
 
 Acknowledgment of a deed which 
 fails to recite that the grantor was known 
 to the officer is fatally defective; yet if it 
 recites that the grantor signed the instru- 
 ment in his presence, it may operate as 
 an attestation. Rogers v. Adams, 66 
 Ala. 600. > 
 
 The certificate must state that the 
 subscribing witness knew the person who 
 executed the deed, and a statement that 
 he saw him sign it is not sufficient proof 
 of his identity. Jackson v. Osborn, 2 
 Wend. (N. Y.) 555; s. c, 20 Am. Dec. 
 649 See also Jackson v. Gould, 7 
 Wend. (N. Y.) 366; Dias i/. Glover, i 
 Hoff. Ch. (N. Y.) 74. 
 
 The certificate of the officer to a deed 
 executed by agents, to the effect that the 
 agents, naming them, were personally 
 known to him, and that each of them had 
 acknowledged the execution of the deed 
 as agent, and being otherwise sufficient, 
 is a sufficient compliance with the statute 
 requiring him to certify that they were 
 the individuals who signed the instru- 
 ment. Little V. Weatherford, 63 Tex. 
 638. 
 
 The use of the words " I am satisfied " 
 in place of "personally known " /;f/a'a 
 fatal defect. Shephard v. Carriel, 19 111. 
 313; Fryer v. Rockeffeller, 63 N. Y. 268. 
 Compare Hiles v. La, Flesh, 59 Wis. 
 465. 
 
 The omission of "personally" before 
 the word " known." or " appeared " after 
 "personally," held not a fatal defect. 
 West Point Iron Co. v. Reymert, 45 N. 
 Y. 703; Shelden v. Stryker, 42 Barb. 
 (N. Y.). 284; Warner v. Hardy, 6 Md. 
 525; Alexander v. Merry, 9 Mo. 514; 
 Robson V. Thomas, 55 Mo. 581; TuUy v. 
 Davis, '30 111. 103; Rosenthal z/.' Griffin, 
 23 Iowa, 263, Todd v. Jones, 22 Iowa, 
 146; Scharfenburg v. Bishop, 35 Iowa, 
 60; Hopkins v. Delany, 8 Cal. 85; Welch 
 V. Sullivan, 8 Cal. 511; Davis v. Bogle, 
 
 11 Heisk. (Tenn.) 315. See Hunt v. 
 Johnson, 19 N. Y. 279; Jackson u. 
 Gumaer, 8 Cow. (N. Y.) 552; Thurman 
 V. Cameron, 24 Wend. (N. Y.) 87; Hen- 
 derson V. Grewell, 8 Cal. 581; Bell v. 
 Evans, 10 Iowa, 353; Tiffany v. Glover, 
 3 Greene (Iowa), 387; Delannay v. Bur- 
 nett. 4 Gilm. (111.) 454; Kelly v. Calhoun, 
 95 U. S. 710; Carpenter v. Dexter, 8 
 Wall. (U. S.) 513. 
 
 As to what has been held insufficient 
 compliance with the statute, see Becker 
 V. Quigg, 54 111. 390; Brintonz/. Seevers, 
 
 12 Iowa, 389; Gould V. Woodward, 4 
 Greene (Iowa), 82; Fryer w. Rockefeller, 
 63 N. Y. 268; Miller v. Link, 2 T. & 
 C. (N. Y.) 86; Wolf v. Fogarty, 6 Cal. 
 224. 
 
 Negligence, — A notary public is not 
 liable for negligence in, and certifying 
 to identity, when in reality he did not 
 know the party, and party procuring 
 certificate was guilty of contributory 
 negligence. Oakland Bank v. Murfey, 
 9 Pac. Repr. 843. Compare Fogarty 
 V. Finlay. 10 Cal. 239. 
 
 1. Sanford v. Bulkley, 30 Conn. 344; 
 Magnesia''. Arnold, 31 Ark. 103; Brad- 
 ford V. Dawson, 2 Ala. loy, Lincoln v. 
 Thomson, 75 Mo. 613; Wilcoxson v. Os- 
 born, 77 Mo. 621; Wise w. Postlewait, 3 
 W. Va. 452; Chandler v. Spear, 22 Vt. 
 388; Lone V. Shields, 3 Yerg. (Tenn.) 
 405; Phillips t/. Ruble, Litt. Sel. Cas, (Ky.) 
 221; Carpenter v. Dexter, 8 Wall. (U. S.) 
 513; Kelly V. Rosenstock, 45 Md. 389. 
 
 Compare \{s.yd.&nv. Wescott, 11 Conn. 
 129; Hiss V. McCabe, 45 Md. 77; Smith 
 V. Hunt, 13 Ohio, 260. See Wood v. 
 Cochrane, 39 Vt. 544. 
 
 2, Mays v. Hedges, 79 Ind. 2S8. See 
 Harrisons. McWhirter, 12 Neb. 152. 
 
 155 
 
"Certificate. 
 
 ACKNO WLEDGMENT. 
 
 GonBtmction, 
 
 It must appear from the certificate that the party has acknowl- 
 -edged or executed the instrument. This may be shown by the 
 use of the word " acknowledged " or " executed," or as the statute 
 may direct'.^ 
 
 A certificate must be construed with reference to the instrument 
 it is attached to, and the instrument is allowed to help out the 
 construction of the certificate. And if the certificate is inconsistent 
 with the instrument and ambiguous, the court will look to the in- 
 strument, or any part of it, together with the certificate, in order 
 to arrive at the true meaning of the officer.** 
 
 The signature, of the officer must be affixed to the certificate. It 
 -.is not a compliance with the statute if he signs his name in the 
 
 1. Chouteau v. Allen, 70 Mo. 290; Ca- 
 
 'bell V. Grubbs. 48 Mo. 353; Ingraham v. 
 
 -Grigg, 13 Sneed & M. (Miss.) 22; Hobo- 
 
 .ken Land Co. v. Kerrigan, 31 N. J. L. 
 13; Stanton v. Button, 2 Conn. 527; 
 Basshor J/. Stewart, 54 Md. 376; Jackson 
 
 --v. Gilchrist, 15 Johns. (N. Y.) 89; Stuart 
 
 ■v. Dutton. 39 111. 91; Short v. Conlee, 28 
 111. 2ig; Bryon v. Ramirez, 8 Cal. 461; 
 Henderson v. Grewell, 8 Cal. 581; Wise 
 
 ■V. Postlewait, 3 W. Va. 452; Smith v. 
 Williams, 38 Miss. 48; Dorn v. Best, 15 
 Tex. 62; Jacoway v. Gault. 20 Ark. 190; 
 Dewey v. Campau, 4 Mich. 565. See 
 Equivalent Words, ante, p. 152. 
 
 The word "acknowledged" cannot be 
 
 -supplied by intendment or construction. 
 Stanton v. Button, 2 Conn. 527; Dewey 
 V. Campau, 4 Mich. 565. Compare 
 Chouteau v. Allen, 70 Mo. 290; Basshor 
 V. Stewart, 54 Md. 376. 
 
 Where the certificate is in the form of 
 
 . a jurat, held sufficient. Ingraham v. 
 Grigg, 13 S. & M. (Miss.) 22. 
 
 Where the certificate fails to show a 
 
 -separate acknowledgment of the wife, but 
 
 -does show that she was privately exam- 
 ined, it is not invalid. Kenneday v. Price, 
 
 J7 Miss. 771. 
 
 " Act and deed " is equivalent to " exe- 
 cuted. " Sharp V. Hamilton, 7 Halst. (N. 
 J.) 109. See Davis v. Bogle, 11 Heisk. 
 (Tenn.) 315; Hall v. Thompson, I S.& M. 
 
 .(Miss.) 443; Brown v. Farran, 3 Ohio, 140. 
 W. S., the attorney named in the deed 
 for that purpose, appeared before a jus- 
 tice of the peace, and that officer certified 
 that " personally appeared W. S., etc.," 
 omitting the words " and acknowledged 
 the said mortgage." In the same certifi- 
 cate the justice further certified that, at 
 the same time, the mortgagee appeared 
 and made oath that the consideration set 
 
 'forth in the mortgage was true and bona 
 fide; and this certificsite was appended to 
 the mortgage in the usual way, and the 
 
 unortgage was thereupon duly recorded. 
 
 On exception to the sale of the mortgaged 
 premises, on the ground that the mort- 
 gage was not duly acknowledged, it was 
 held that every reasonable intendment 
 should be made in support of the certifi- 
 cate, and the instrument to which it was 
 attached. That from the face of the 
 whole writing, including the certificate, 
 there was no doubt as'to what was done, 
 and that the act done was in accordance 
 with the authority delegated. That the 
 words omitted by mere clerical misprision 
 were supplied by the context with posi- 
 tive certainty; and that what might be 
 fairly and clearly understood or implied, 
 in reading the acknowledgment in con- 
 nection with the deed, was of the same 
 effect as if it had been in terms expressed. 
 Basshor v. Stewart, 54 Md. 376. 
 
 3. Wilcoxson v. Osborn, 77 Mo. 621; 
 Lincoln v. Thompson. 75 Mo. 613; 
 Samuels v. Shelton, 48 Mo. 444; McClure 
 V. McCIurg, 53 Mo. 173; Wells v. Atkin- 
 son. 24 Minn. 161; Ives v. Kimball, i 
 Mich. 316; Harrington v. Fish, 10 Mich. 
 415; Newton w. McKay, 29 Mich, i; Nel- 
 son V. Grai5[, 44 Mich. 433; Calumet, etc., 
 Co. V. Russell, 68 111. 426; Logan 71. Wil- 
 liams, 76 111. 175; Hiles V. La Flesh, 59 
 Wis. 465; Chase v. Whiting, 30 Wis. 544; 
 Middleton v. Findla, 25 Cal. 80; Chandler 
 V. Spear, 22 Vt. 3S8; Brooks v. Chaplin, 
 3 Vt. 281; s. u., 23 Am.' D6c. 209; San- 
 ford V. Bulkley. 30 Conn. 344; Angier v. 
 Schieffelin. 72 Pa. St. 106; s. c, 13 Am. 
 Rep. 659; Furhman v. London, 13 Serg. 
 & R. (Pa.) 386; s. c, 15 Am. Dec. 608; 
 Basshor v. Stewart, 54 Md. 376; Kelly j;. 
 Rosenstock,45 Md. 389; Hall v. Gettings, 
 
 2 H. & J. (Md.) 380; Wise v. Postlewait, 
 
 3 W. Va. 452; Sharpe v. Orme, 61 Ala. 
 263; Ifigraham v. Grigg, 13 Smed. & M. 
 (Miss.) 22; Morse v. Clayton, 13 Smed. 
 & M. (Miss.) 373; Lone v. Shields, 3 
 Yerg. (Tenn.) 405; Kelly w. Calhoun. 95 
 U. S. 710; Carpenter w. Dexter, 8 Wall. 
 (U. S.) 515. 
 
 156 
 
Certificate. 
 
 ACKNO WLEDGMENT. 
 
 Signature — SeoL 
 
 body of the certificate.^ The signature must show the official 
 character of the person taking the acknowledgment.'-* 
 
 If an official seal is prescribed by statute, the officer must use a 
 seal complying with all the statutory requirements ;^ but if no 
 
 1. Marston v. Brashaw, i8 Mich. 8i. 
 Jefferson, etc., Assoc, v, Heil, 8[ Ky. 
 513; Carlisle v. Carlisle, 78 Ala. 542. 
 
 8. Johnston v. Haines, 2 Ohio, 55; 
 Carlisle v. Carlisle, 78 Ala. 542. 
 
 If the official character of the officer 
 taking the acknowledgment appears in 
 the body of the certificate, it is sufficient. 
 Brown v. Farrar, 3 Ohio. 140. 
 
 Where the letters "J. P." were an- 
 nexed to the official signature, and the 
 certificate showed the official character of 
 the officer, held sufficient. Final tt. 
 Backus, 18 Mich. 218. See Rowley v. 
 Berrian, 12 111. 200. 
 
 Attached to a deed were two acknowl- 
 edgments, one of the grantor, and the 
 other of his wife. The second certificate 
 immediately followed the first, and was 
 the only one signed by the officer taking 
 the acknowledgment. Held, that the cer- 
 tificates were in effect one certificate. 
 Wright V. Wilson, 17 Mich. ig2. 
 
 If the official character of the person 
 taking the acknowledgment does not ap- 
 pear in the certificate, it may be proved 
 aliunde. Shults v. Moore, i McLean 
 (U. S.), 520; Bennet v. Paine, 7 Watts 
 (Pa.) 334; Scott V. Gallagher. 11 S. & 
 R. (Pa.) 347. Campari Johnson v. 
 Haines, 2 Ohio, 55. 
 
 3. Texas Land Co. v. Williams, 51 
 Tex. 51; McKellar v. Peck, 39 Tex. 381; 
 Ballard v. Pdrry, 28 Tex. 347; Little v. 
 Dodge, 32 Ark. 453; Dail v. Moore, 51 
 Mo. 589; Meskimen v. Day, 10 Pac. 
 Repr. (Kan.) 14; Booth v. Cook, 20 111. 
 I2g; Skinner v. Fulton, 39 111. 384; 
 Mason v. Brock, 12 111. 273; Moore v. 
 Titman, 33 III. 358; Holbrook v. Nichol, 
 36 111. 161; Buel V. Irwin, 24 Mich. 145; 
 Hastings v. Vaughn, 5 Cal. 315; Kemper 
 V. Hughes, 7 B. Mon. (Ky.) 255; Miller 
 V. Henshaw, 4 Dana(Ky.), 325; Fleming 
 V. Richardson, 13 La. Ann, 414; Mc- 
 Laurin v. Wilson, 16 Shand. (S. Car.) 
 402; McCreary v. McCreary, 9 Rich Eq. 
 (S. Car.) 34; Dunn v. Adams, i Ala. 527; 
 Duncan z;. Duncan, i Watts (Pa.), 322; 
 Barney v. Sutton, 2 Watts (Pa.), 31; 
 Richards v. Randolph, 5 Mason (U. S.), 
 115. 
 
 In Robinson w. Robinson, 5 N. Eastern 
 Repr. (111.) 188, the court said: "It is 
 not essential to the validity of a deed 
 that the notary's seal should be attached. 
 A deed may,be valid and binding on the 
 parties who execute it, without any 
 
 acknowledgment before an officer. The 
 purpose of the certificate of acknowledg'- 
 ment is to prove the execution of the 
 deed; and where there is no certificate of 
 acknowledgment other proof nsay be pre- 
 sented to prove the execution of the in- 
 strument; and when thus proven the deed- 
 is as operative and binding on the parties 
 as it would be if properly acknowledged 
 before an officer. There is ample evi- 
 dence in the record to prove that the 
 grantors executed the deed; and the fact 
 that the notary failed to affix his official 
 seal to the certificate of acknowledgment 
 did not affect the validity of the instru- 
 ment." See Bank v, Pursly, 3 T. B. 
 Mon. (Ky.) 238; Tyler v. Bank, 7. T. B, 
 Mon. (Ky.) 557; Homes &. Smith, 16 Me, 
 181. 
 
 The absence of a seal may be cared; by 
 a validating act. Cole v. Wtigbt, 70 Ind. 
 179. 
 
 The seal must be on the same sheet 
 with the deed and certificate. Winkler 
 z/, Higgins, 9 Ohio St. 599. 
 
 The official seal must b" used; a private 
 seal or scrawl will not answer. Mason v.. 
 Brock, 12 111. 273; s. c, 52 Am. Dec. 
 490; Skinner v. Fulton, 39 111. 484; Dunnt 
 V. Adams, i Ala. 527. 
 
 Unless permitted by statute, Fogarty 
 V. Sawyer, 23 Cal. 570. 
 
 The courts are bound to take judicial 
 notice of the seal of a commissioner ap- 
 pointed by the governor to take acknowl- 
 edgments in another State. Smith v. 
 Van Gilder, 26 Ark. 527; Irving v, 
 Brownell, 11 Gilm. (Va.)402. 
 
 Courts take notice of the seals of no- 
 taries public. Yeaton v. Fry, 5 Cranch 
 (U. S.), 535; Chanoine v. Fowler, 3 
 Wend. (N. Y.) 173; Porter v. Judson, r 
 Gray (Mass.), 175; Stoddard v. Sloan,, 
 65 Iowa, 58o. 
 
 The record of a deed, acknowledged 
 before a notary in this State, but not 
 authenticated with his notarial seal, can- 
 not be received in evidence. Meskimen 
 V. Day, 35 Kan. 46. 
 
 The absence from a notary's seal of 
 the emblems and devices required by the 
 statute does not invalidate his certificate 
 of the acknowledgment of a deed. Son- 
 field V. Thompson, 42 Ark. 46. 
 
 The omission of the word "seal "be- 
 tween "and" and "of office" is not a 
 fatal defect. Nichols v. Stewart, 15 Tex, 
 226. 
 
 I C. of L.— II 
 
 157 
 
Certificate. 
 
 ACKNOWLEDGMENT. Defective Acknowledgment. 
 
 seal is required by statute, or a special form of^ seal prescribed, 
 then the omission to affix a seal, or the use of such one as the 
 officer may select, will not invalidate the certificate. ^ 
 
 Only purchasers for value can take advantage of a defective ac- 
 knowledgment.* If the property has passed into the possession 
 of a bona-fide purchaser without notice, or is in the possession of 
 an innocent grantee, the certificate is conclusive,^ and parol evi- 
 
 In Webb v. Huff, 6i Tex. 677, the 
 court said: ''But it is objected that the 
 notary did not add the words ' Given 
 under my hand and seal of office,' etc. 
 These venerable words ought, no doubt, 
 to be used by all notaries, especially as 
 they have been adopted into the form 
 given by the statute ; but we do not 
 think that their presence or their absence 
 will affect the validity of the Instrument. 
 When the notary has appended his ofB- 
 cial signature and seal to the certificate, 
 the seal gives authority to the document 
 as well as to the signature. And it will 
 add no weight whatever for him to ap- 
 pend the words 'this is my seal,' 'this 
 is my signature,' or any equivalent 
 words." 
 
 1. Davis V. Roosevelt, 53 Tex. 305; 
 Collins V. Boyd, 5 Dana (Ky.), 316; 
 Thompson "■ Robertson, 9 B. Mon. 
 (Ky.) 383; Harrison w. Simmons, 55 Ala. 
 510; Powers V. Bryant, 7 Port. (Ala.) g; 
 Jacques v. Weeks, 7 Watts (Pa.), 261; 
 Farnum v. Buffum, 4 Cush. (Mass.) 260; 
 Fund Com'rs v. Glass. 17 Ohio, 542; 
 Irving V. Brownell, 11 111. 402; Cole v. 
 Wright, 70 Ind. 179; Ingoldsby !>. Quan, 
 12 Cal. 564; Thompson u. Morgan, 6 
 Minn. 292. 
 
 The official seal of which the courts 
 will take notice — in the absence of statu- 
 tory regulation — consists in an impres- 
 sion on wax or wafer aifixed to the in- 
 strument, or upon the substance of the 
 paper; and not in any particular words 
 identifying the person of the officer. 
 Phillips, In re, 14 Bankr. Reg. 219. 
 
 2. Martin v. Halley, 61 Mo. 196; 
 Bishop V. Schneider, 46 Mo. 472; Cho- 
 teau V. Burlands, 20 Mo. 482. 
 
 3. Fitzgerald v. Fitzgerald, 100 111. 385; 
 Kerr v. Russell, 69 111. 666; s. c, 18 Am. 
 Rep. 634; Lickmon v. Harding. 65 111. 
 505; Board v. Davieson, 65 111. 124; 
 Calumet, etc., Co. v. Russell, 68 111. 426; 
 Marston v. Brittenham, 76 111. 611; Bald- 
 win V. Snowden, 11 Ohio St. 203; Mc- 
 Henry v. Day, 13 Iowa, 445; De Arnaz 
 V. Escandon, 59 Cal. 486; Singer Mfg. 
 Co. V. Rook, 84 Pa. St. 442; s. c, 24 Am. 
 Rep. 204; Miller v. Wentworth, 82 Pa. 
 St. 280; Heeter w. Glasgow, 79 Pa. St. 
 79; s. c, 21 Am. Rep. 46; Williams v. 
 
 Baker, 71 Pa St. 476; Hall v. Patterson, 
 51 Pa. St. 289; Hayden v. Wescott, 11 
 Conn. 129; Elwood v. Klock, 13 Barb. 
 (N. Y.) 55; Ridgely v. Howard, 3 H. & 
 McH. (Md.)32i; Harkins v. Forsyth, \\ 
 Leigh (Va.), 29; Johnson v. Wallace, 53 
 Miss. 331; s. c, 24 Am. Rep. 699; Shiv- 
 ers V. Simmons, 54 Miss. 520; Robinson 
 V. Noel, 49 Miss. 253; Stone v. Mont- 
 gomery, 35 Miss. 83; Willis V. Gatman, 
 53 Miss. 731; Shields v. Netherland, 5 
 Lea(Tenn.), 193; Harpendin-gt/.Wylie,i4 
 Bush (Ky.), 380; Cahall v. Citizens, etc., 
 Assoc, 61 Ala. 232; Walter v. Weaver, 57 
 Tex. 569; Kocurek v. Marak, 54 Tex. 
 201; s. c, 38 Am. Rep. 623; Davis v. 
 Kennedy, 58 Tex. 516; Hartley z/. Fresh, 
 6 Tex. 208; O'Farrell v. Simplot, 4 Iowa, 
 396; Stillwell V. Adams, 29 Ark. 346; 
 Holt V. Moore, 37 Ark. 145; Elliott v. 
 Piersol, i Pet. (U. S.) 338; Paxton v. 
 Marshall, 18 Fed. Repr, 361. Compare 
 Bridge v. Hare, 98 Pa. St. 561. 
 
 Where the wife claimed that the inter- 
 preter did not correctly explain the con- 
 tents of the deed to her, but said that it 
 was a mortgage, held, that the certifi- 
 cate was conclusive of the facts recited. 
 De Arnaz v. Escandon, 59 Cal. 486. Or 
 that her signature was forged. Kerr v. 
 Russell, 69 111. 666; s. c , 18 Am. Rep. 
 634. See Lickman v. Harding, 65 III. 
 505; Johnson v. Van Velsor, 43 Mich. 
 208. 
 
 To impeach the certificate of the ac- 
 knowledgment of a deed, the proof must 
 show a conspiracy between the officer 
 taking the acknowledgment and the 
 grantee, or that the officer practised im- 
 position or fraud upon the grantor, and 
 the testimony of the grantor alone is not 
 sufficient to overcome the certificate and 
 the officer's testimony in support of the 
 same. Fitzgerald v. Fitzgerald, 100 111. 
 385. See Warrick v. Hull, 102 111. 280; 
 Worrall v. McDonald, 66 Ala. 572; Gro- 
 tenkemperz/. Carver, 10 Lea(Tenn.), 280. 
 
 It may be regarded as well settled 
 that except in such cases of fraud and 
 collusion which are brought home to 
 some party claiming under the deed, if 
 the certificate is regular and complete, as 
 in this case, no parol evidence will be re- 
 ceived to contradict the facts set forth 
 
 158 
 
Certificate, 
 
 A CKNO WLEDGMENT. 
 
 Corporation. 
 
 dence cannot be introduced to innpeach it, provided it is not de- 
 fective upon its face. 
 
 5. Corporation. — The certificate should state the position of the , 
 officer affixing the corporate seal, his authority, that he knows the 
 corporate seal, and that the same is affixed to the conveyance by 
 order of the board of directors, or other trustees of the corpora- 
 tion, and that he subscribed his name thereto as a witness of the 
 execution thereof.^ In the absence of statutory provision, the 
 
 on the face of the certificate; and, on the 
 other hand, if the certificate fails to state 
 any essential fact, the existence of it can- 
 not be proven by parol; her acknowledg- 
 ment cannot rest partly in parol and 
 partly in writing — it must all be in writ- 
 ing. Ennor v. Thompson, 46 111. 215; 
 Ridgely v. Howard, 3 H. & McH. (Md.) 
 321; Lickman v. Harding, 65 111. 505; 
 Kerr v. Russell, 5g 111. 666; Montgom- 
 ery V. Hobson, Meigs (Tenn.), 437; 
 Westbrooks v. Jeffers, 33 Tex. 86; Hays 
 V. Hays, 5 Rich. (S Car.) 31; Williams 
 V. Baker, 71 Pa. St. 476; Barnett v. Bar- 
 nett, 15 Serg. & R. (Pa.) 72; Rollins v. 
 Manager, 22 W. Va. 461. 
 
 A certificate is not successfully im- 
 peached by the testimony of the husband 
 and wife that the husband remained in 
 the clerk's office while the privy exam- 
 ination was taken, the husband stating 
 that he does not remember wheiher he 
 was out of hearing or not, and the wife 
 being silent on this point, and saying 
 ihat she signed the deed and acknowl- 
 edged it. Grotenkemper v. Carver, 10 
 Lea (Tenn.), 280. See Miller v. Marx, 
 55 Ala. 322; Smith v. McGuire, 67 Ala. 
 34; Kerr v. Russell, 6g 111. 666; s. c, 18 
 Am. Rep. 634. Or by the uncorrobo- 
 rated testimony of the wife. Knowles v. 
 Knowles, 86 111. i; McPherson v. San- 
 born, 88 111. 150; Biggers v. St. Louis, 
 etc.. Co., g Mo. App, 210; Smith v. Allis, 
 52 Wis. 337; Johnson v. Van Velsor, 43 
 Mich. 20S; Hourtienne v. Schnoor, 33 
 Mich. 274; Allen v. Lenoir, 53 Miss. 324; 
 Ins. Co. V. Nelson. 103 U. S. 544. 
 
 1. Watson.z/. Bailey, i Binn. (Pa.) 470; 
 s. c, 2 Am. Dec. 462; Jourdan v. Jour- 
 dan, g S. & R. (Pa.) 268; Barnet v. Bar- 
 net. 15 S. & R. (Pa.) 72; Leftwich v. 
 Neal, 7 W. Va. 569; Ennor v. Thompson, 
 46 111. 214; Harty v. Ladd. 3 Oregon, 353; 
 Pool V. Chase, 46 Tex. 207; Coal Creek 
 Co. V. Heck, 15 Lea (Tenn.), 497; Prib- 
 ble V. Hall, 13 Bush (Ky.), 161; Paxton 
 V. Marshall, 18 Fed. Repr. 361. 
 
 The grantee in a mere quit-claim deed 
 cannot be regarded as an innocent pur- 
 chaser without notice of the rights of a 
 prior purchaser from the same grantor by 
 a deed defectively acknowledged. Watson 
 
 V. Phelps, 40 Iowa, 482; Springer v. Bar- 
 tie, 46 Iowa, 688; Fogg v. Holcomb, 64 
 Iowa, 621. 
 
 2. Lovett V. Steam Saw mill Assoc, 6 
 Paige, Ch. (N. Y.) 60. 
 
 A conveyance of property by a corpo- 
 ration may be executed like a conveyance 
 by an individual, through any agent hav- 
 ing authority to represent the company 
 for that purpose. It has been held that 
 a statutory provision that it "shall.be 
 lawful for any corporation to convey 
 lands by deed of bargain and sale, sealed 
 with the common seal of said corpora- 
 tion, and signed by the president or pre- 
 siding member or trustee, and two other 
 members of the corporation, and attested 
 by a witness" did not prohibit other 
 methods of execution by authorized 
 agents. Morawetz on Corp. (2d ed.), § 
 335; citing Bason v. Mining Co., go N. 
 Car. 417; Morris v. Keil, 20 Minn. 531. 
 
 In the absence of statutory provisions, 
 the only formalities necessary to the valid 
 execution of a deed by a corporation are 
 sealing with the corporate seal and de- 
 livery. It is usual to sign the corporate 
 name. Ang. & Ames /Corp. § 225; 
 Flint V. Clinton Co., 12 N. H. 430. 
 
 But it is not necessary that the corpo- 
 rate name should be signed. Ang. & 
 Ames Corp. § 225; Osborne v. Tunis, 
 
 1 Dutch. (N. J.) 633; Cooch v. Goodman, 
 
 2 Q B. 580. Except where it is required 
 by statute. Isham v. Bennington Iron 
 Co., 19 Vt. 251. 
 
 At common law, the signature of the 
 corporation is its corporate seal. City of 
 TifEn V. Shawhan, g Am. & Eng. Corp. 
 Cas. 556; Gordon v. Preston, i Watts 
 (Pa.), 385; Frankfort Bank Z'. Anderson, 
 
 3 A. K. Marsh (Ky.), g32; Beckwith v. 
 Windsor Manuf. Co., 14 Conn. 5g4; Doe 
 V. Hogg, 4 Bos. & P. 306. 
 
 A deed was made of the E. W. L. Co., 
 and signed, "In witness whereof, we 
 hereunto set our hands and seals. A. B., 
 President, etc.; C. D., Treasurer, etc." 
 The acknowledgment was in form, 
 " Personally appearing, A. B and C. D. 
 acknowledged the foregoing instrument 
 to be their free act and deed before me," 
 etc. Held, that it was a deed of the cor- 
 
 159 
 
Certificate. 
 
 ACKNO WLEDGMENT. impeachment— Fraud. 
 
 person affixing the corporate seal is the proper person to make the 
 acknowledgment. 1 
 
 6. Impeachment — Fraud. — When there is no appearance before 
 an officer, his false certificate of acknowledgment is void; but 
 when there is an appearance and acknowledgment of it in some 
 manner, then the official certificate is conclusive of every fact 
 appearing on its face ; and evidence of what passed at the time of 
 the acknowledgment is inadmissible to impeach the certificate, ex- 
 cept in case of fraud or imposition, and where knowledge or notice 
 of the fraud or imposition is brought home to the grantee.* 
 
 poration. Tenney v. East Warren, etc., 
 Co., 43 N. H. 343; see McDaniels v. 
 Flower, etc., Co., 22 Vt. 274. 
 
 In Frostburg Mut. Build. Assoc. z/. Brace, 
 51 Md. 508, the certificate of the justice 
 stated that the attorney of the corporation 
 appeared and acknowledged the mortgage 
 to be his act Snd deed, instead of the act 
 and deed of the corporation. Held, that 
 the acknowledgment was aided by intend- 
 ment, and that it should be read and 
 understood as the acknowledgment of the 
 corporation by its attorney, according 
 to what was the manifest intention. 
 
 A deed purporting to convey title to 
 land, by a national bank, to which was 
 signed the corporate name, with the bank 
 seal affixed by "John Kerr, Prest.," and 
 " R. P. Aunspaugh, Cashier," had affixed 
 thereto the following certificate of ac- 
 knowledgment : "This day personally 
 appeared John Kerr, president of said 
 First National Bank of the city of Dallas, 
 and R. P. Aunspaugh, cashier of said 
 bank, both of whom are to nie well 
 known, and severally acknowledged that 
 they executed the above and foregoing 
 instrument for the purposes and consider- 
 ations therein contained" (signed by the 
 officer and authenticated with his seal). 
 Held, that the acknowledgment was a 
 sufficient compliance with the statute re- 
 quiring the president of a corporation, in 
 making a deed, to acknowledge it to be 
 ' " the act of the corporation." Muller v. 
 Boom, 63 Tex. gi; Monroe v. Arledge, 
 23 Tex. 480. 
 
 To an assignment for the benefit of 
 creditors executed by a corporation was 
 appended a notary's certificate that M. 
 C, president, and A. M., cashier, of the 
 corporation, "acknowledged that they 
 executed and delivered the same as their 
 voluntary act and deed, for the uses and 
 purposes therein contained." Held, that 
 this was a sufficient certificate that the 
 corporation acknowledged the instru- 
 ment. Eppricht V. Nickerson, 78 Mo. 483. 
 
 By § 1745 Rev. Stat, of Ohio, the 
 Mayor is intrusted with the custody and 
 
 use of the corporate seal; this being so, 
 and the -proper mode of executing a deed 
 of land owned by the corporation being 
 by affixing the seal of the corporation, 
 qu<B7'e, can the corporation empower the 
 City Clerk to make a valid deed of cor- 
 porate real property? Tiffin v. Shawhan, 
 43 Ohio, St. 178; s. c, 9 Am. & Eng. 
 Corp. Cas. 556. 
 
 1. Kelly v. Calhoun, 95 U. S. 710. 
 
 2. Meyer v. Gossett, 38 Ark. 377; 
 Halt V. Moore, 37 Ark. 148; Johnson v. 
 Wallace, 53 Miss. 331; Stone v. Mont- 
 gomery, 35 Miss. 83; Hester v. Glasgow, 
 79 Pa. St. 79; s. c, 2f Am. Rep-. 461; 
 Singer Manuf. Co. v. Rook, 84 Pa. St. 
 442; s. c, 24 Am. Rep. 204; Michenerw. 
 Cavender, 38 Pa. St. 337; Williams v. 
 Baker, 71 Pa. St. 482; Mays v. Hedges, 
 79 Ind. 288; Hartley v. Frost, 6 Tex. 
 208; Davis V. Kennedy, 58 Tex. 516; 
 Baldwin v. Snovvden, 11 Ohio St. 203; 
 Marsh v. Mitchell, 26 N. J, Eq. 497; 
 White I/. Graves, 107 Mass. 325; Kerr ?^ 
 Russell', 69 III. 666; Eyster v. Hathaway, 
 50 111. 522; Rollins V. Menager, 22 W. 
 Va. 461; Worrell z;. McDonald, 66 Ala. 
 572; Coleman v. Smith, 55 Ala. 368;. 
 Shields v. Netherlands, 5 Lea (Tenn.), 
 193; De Arnaz v. Escandon, 59 Cal. 486; 
 Bissett V. Bissett, i H. & McH. (Md.) 
 211; Borland z;. Walrath, 33 Iowa, 133; 
 Hourtienne v. Schnoor, 33 Mich. 274; 
 Smith V. Allis, 52 Wis. 337; Ins. Co. v. 
 Nelson, 103 U. S. 544. Compare Bridge 
 V. Hare, 98 Pa. St. 561. 
 
 The following cases hold that the cer- 
 tificate is prima-facie evidence of the facts 
 recited and of its own validity: Jackson 
 V. Hoyner, 12 Johns. (N. Y.)472; Jack- 
 son V. Schoonmaker, 4 Johns, (N. Y.) 
 161; Hall V. Patterson, 51 Pa. St. 289; 
 .Borland v. Walrath. 33 Iowa, 130; Ed- 
 gerton v. Jones, 10 Minn. 429; Annan v. 
 Folsom, 6 Minn. 500; Dodge v. HoUins- 
 head, 6 Minn. 25; Landers v. Bolton, 26 
 Cal. 406; Young v. Duvall, 100 U. S. 573; 
 Belo 0. Mayes, 79 Mo. 67; Wannell v. 
 Kern, 57 Mo. 480; Steffern v. Bauer, 70 
 Mo. 399; Sharpe v. McPike, 63 Mo. 300; 
 
 160 
 
Certificate. 
 
 ACKNO WLEDGMENT. 
 
 Validating Statutes. 
 
 7. Validating Statutes. — A retrospective statute curing defects 
 in legal proceedings where they are in their nature irregularities 
 only, and do not extend to matters of jursidiction, is not void on 
 constitutional grounds, unless expressly forbidden. Of this class 
 
 Clark V. Edwards, 75 Mo. 87; Webb v. 
 Webb, 87 Mo. 540. 
 
 As the certificate forms part of the 
 deed, is essential to its validity, and 
 purchasers are invited to look to and 
 rely upon it, the evidence impeaching it 
 ought to be clear, convincing, and con- 
 clusive, reaching a high degree of cer- 
 tainty, leaving upon the mind no fair, 
 just doubts. Smith v. McGuire, 67 Ala. 
 34; Tett V. Rogers, 12 Bush (Ky.), 564; 
 Hughes V. Colman, 10 Bush (Ky.), 246; 
 Kavanaugh v. Day, 10 R. I. 393; Russell 
 ■V. Baptist, etc.,Sem., 73 111. 337; Kerr v. 
 Russell, 69 111. 666; Riecke v. Westen- 
 hoff, 10 Mo. App. 358; Smith v. Allis, 52 
 Wis. 337; Insurance Co. v. Nelson, 103 
 U. S. 544. 
 
 A married woman may show against 
 all the world that she never made any 
 acknowledgment at all of the execution 
 of a deed, and that the certificate of ac- 
 knowledgment is a forgery or entire fab- 
 rication of the officer; but if she actually 
 made some kind of acknowledgment be- 
 fore an officer qualified to take it, his 
 certificate will be conclusive as to the 
 terms of the acknowledgment and the 
 concomitant circumstances, in favor of all 
 persons who, themselves innocent of 
 fraud or of collusion to deceive or in- 
 fluence her, have taken the instrument 
 on faith of the certificate. Donahue v. 
 Mills, 41 Ark. 421. 
 
 Where a mortgage, or other convey- 
 ance, is duly acknowledged before a 
 proper officer, and the requisite certifi- 
 cate of acknowledgment is affixed in the 
 form prescribed by statute, this circum- 
 stance constitutes such cogent proof of 
 a free agency and absence of restraint as 
 to be perfectly conclusive, unless rebut- 
 ted by clear proof of fraud or imposition 
 practised on the grantor, in which the 
 officer or the mortgagee participated. 
 Downing v. Blair, 75 Ala. 216; Miller v. 
 Marx, 55 Ala. 322; Moog v. Strang, 6g 
 Ala. 98; Johnston v. Wallace, 53 Miss. 
 331; s. c, 24 Am. Rep. 699. 
 
 A certificate of acknowledgment to a 
 deed, made by the officer merely on the 
 assurance of another that the party exe- 
 cuted it, is a nullity. Mays ». Hedges, 
 79 Ind. 288. 
 
 It may be shown that the officer had 
 not jurisdiction. Scott v. Gallagher, II 
 Serg. & R. (Pa.) 347. Or that he did have 
 jurisdiction, although the certificate, by 
 
 clerical error, stated otherwise. Angler 
 V. Schiefflin, 72 Pa. St. 106; s. c, 13 Am. 
 Rep. 659; Bennett v. Paine, 7 Watts 
 (Pa.), 334. Or that the court where the 
 acknowledgment was taken was, or was 
 not, a court of record. Pierce v. Hakes, 
 II Harris (Pa.), 231. 
 
 Evidence can be given to show that 
 the grantor, who had executed s. deed 
 fifty years before, was non compos. Jack- 
 son V. Schoonmaker, 4 Johns. (N. Y.) 
 161. 
 
 Separate Acknowledgment of Wife. — 
 The wife cannot impeach for fraud the 
 certificate of her acknowledgment to -a. 
 deed when the same is in conformity to 
 the requisitions of the statutes, and when 
 there is an adequate consideration paid 
 to support the deed, if the purchaser 
 neither participated in the fraud nor had 
 knowledge of its existence. Davis v. 
 Kennedy, 58 Tex. 516. 
 
 The validity of a deed made by a hus- 
 band and wife in trust to secure money 
 advanced, on the faith thereof, to the 
 husband, an innocent third person, where 
 the probate is in due form by the proper 
 officers, cannot be impeached upon the 
 ground that the deed and the certificate 
 of privy examination were dated earlier 
 than the date of actual execution, or that 
 the married woman was not unable to 
 appear before the clerk in proper person, 
 or that the commission to take the privy 
 examination was in blank when issued, 
 or that the privy examination was not 
 taken in the most approved mode. The 
 fact that the husband misled the wife as 
 to the nature of the instrument she was 
 called upon by him to sign, and which 
 she executed at his request and without 
 reading it, does not constitute such fraud 
 as will enable her to contradict, by parol, 
 the certificate of acknowledgment and 
 privy examination to a trust deed to se- 
 cure money loaned to the husband, neither 
 the creditor nor the trustee being present, 
 nor having any reason to suspect the im- 
 position. Shields v. Netherlands, 5 Lea 
 (Tenn.), 193. 
 
 The unsupported testimony of the wife 
 is insufficient. Knowles v. Knowles, 86 
 111. i; Marston v. Brittenham, 76 111. 611. 
 See notes, ante. 
 
 A wife may prove that she was a 
 minor, although the certificate states that 
 she was of age. Williams v. Baker, 71 
 Pa. St. 476. 
 
 161 
 
Validating Statutes. 
 
 ACKNO WLEDGMENT. 
 
 Validating Statutes. 
 
 are the statutes to cure irregularities where a statutory power has 
 failed of due and regular execution through the carelessness of 
 officers, or other cause. ^ 
 
 1. Cooley's Const. Lim. (4th Ed.) 462, 
 463. If the thing wanting, or which 
 failed to be done, and which constitutes 
 the defect in the proceedings, is some- 
 thing the necessity for which the legisla- 
 ture might have dispensed with by prior 
 statute, then it is not beyond the power 
 of the legislature to dispense with it by 
 subsequent statute. And if the irregu- 
 larity consists in doing some act, or in 
 the mode or manner of, doing some act, 
 which the legislature might have made 
 immaterial by prior law, it is equally 
 competent to make the same immaterial 
 by a subsequent law. Cooley Const. Lim. 
 (4th Ed.) 463. See 19 Am. Law Rev. 378, 
 379; 12 Cent. L. J. 2. In Johnson v. 
 Taylor, 60 Tex. 360, the court said: 
 " The statute does not attempt to create 
 a right where none before existed, but 
 simply to permit parties to show, if they 
 can, by the judgment of a court, that 
 which, before the statute was enacted, 
 could only be shown by the certificate of 
 the designated officer." 
 
 Webb V. Den, 17 How. (U. S.) 578; 
 Watson V. Mercer, 8 Pet. (U. S.) 88; 
 Howard v. Mo ox, 64 N. Y. 262; Foster 
 V. Essex Bank, l6 Mass. 245; Lycoming 
 V. Union, 15 Pa. St. 166; Journeay v. 
 Gibson, 56 Pa. St. 57; Shonic v. Brown, 
 61 Pa. St. 320; Tate v. Stooltzfoos, 16 
 S. & R. (Pa.) 37; s. c, 16 Am. Dec. 546; 
 Barnett v. Barnett, 15 S. & R. (Pa.) 
 72; s. c, i6 Am. Dec. 516; Underwood 
 V. Lilly, 10 S. & R. (Pa.) 97; Watson v. 
 Bailey, i Binn. (Pa.) 476; Dulany v. 
 Tilghman, 6 Gill & J. (Md.)46i; Den- 
 genhart u. Cracraft, 36 Ohio St. 549; 
 Chesnut v. Shane, 16 Ohio St. 559; s. c, 
 47 Am, Dec. 387; Gibson v. Hibbard, 13 
 Mich. 217; Logan v. Williams, 76 111. 
 175; Maxeyw. Wise, 25 Ind. i; Newman 
 V. Samuels, 17 Iowa, 528; Blount v. 
 Janesville, 31 Wis. 648; Hoskinson v. 
 Adkins, 77 Mo. 537; Dentzel v. Waldie, 
 30 Cal. 142; Danville v. Pace, 25 Gratt. 
 (Va.) I ; Stroud v. McDaniel, 12 Lea 
 (Tenn.), 617; Green v. Abraham, 43 Ark. 
 420; Johnson v. Taylor, 60, Tex. 360. 
 Compare Ala. Ins. Co. v. Boykin, 38 Ala. 
 510; Rich V. Flanders, 39 N. H. 304. 
 
 But such laws are unconstitutional so 
 far as they affect vested rights (an exam- 
 ination of the cases cited above will show 
 that they also sustain this rule). Coo- 
 ley's Const. Lim. (4th Ed.) 472; Green v. 
 Drinker, 7 W. & S. (Pa.) 440; Southard 
 
 V. Cent. R. Co., 26 N. J. L. 13; Grove 
 V. Todd, 41 Md. 633; s. c, 20 Am. Rep. 
 76; Good V. Zercher, 12 Ohio, 364; Bar- 
 ton V. Morris, 15 Ohio, 408; Logan v. 
 Williams, 76 111. 175; Russell v. Rumsey, 
 35 111. 362; Brinton v. Seevers, 12 Iowa, 
 389; Meighen v. Strong, 6 Minn. 177; 
 Thompson v. Morgan, 6 Minn. 292; Car- 
 penter V. Dexter, 8 Wall. (U. S.) 513. 
 
 The purchaser of a mortgage is bound 
 to take notice of an act validating ac- 
 knowledgments. Journeay v. Gibson, 56 
 Pa. St. 57. 
 
 A statute validating acknowledgments 
 does not apply to tax deeds. Goody- 
 koontz V. Olsen, 54 Iowa, 174. 
 
 A defective acknowledgment is not 
 cured by a. subsequent statute adopting 
 the form used. Texas Land Co. v. Wil- 
 liams, 51 Tex. 51. 
 
 To make valid the defective acknowl- 
 edgment of a deed, under an act legaliz- 
 ing the acknowledgment of all deeds 
 which had been duly recorded, etc., it 
 was not necessary that the record should 
 be a literal copy in every respect of the 
 instrument, but it was essential that it 
 should embody every material part of 
 the instrument, and that the language of 
 the instrument should be so nearly copied 
 into the record as that the subject-matter 
 of the instrunient could be identified with 
 certainty by the record. Fogg v. Hol- 
 comb, 64 Iowa, 621. 
 
 Where land was conveyed by a deed 
 defectively acknowledged, but duly re- 
 corded, and afterwards an act was passed 
 by the legislature legalizing the acknowl- 
 edgment, but before the passage of such 
 act the grantor conveyed the same land 
 to another, held, that, as between the 
 parties, the case was the same as if there 
 had been no acknowledgment certified 
 upon the first deed, but its execution had 
 been proved by parol; and that the sec- 
 ond grantee, in the absence of proof that 
 he was an innocent purchaser for value, 
 could not claim title superior to the first 
 grantee. Fogg v. Holcomb, 64 Iowa, 
 621; Nolan V. Grant, 53 Iowa, 392. 
 
 The act of Arkansas, 1883, to cure de- 
 fective acknowledgments of deeds, etc., 
 cannot operate in the supreme court in a 
 case decided in the circuit court before 
 its passage. The judgment of the cir- 
 cuit court must be tested by the law as it 
 then existed. Wright v. Graham, 42 
 Ark. 140. 
 
 163 
 
Subscribing Witnesses. ACKNO WLEDGMENT. 
 
 Married 'Women, 
 
 8. Subsequent Acknowledgment. — Where the acknowledgment of a 
 deed is fatally defective as to the wife, no title passes, and a sub- 
 sequent proper acknowledgment, after a conveyance to another 
 party, will not cure the defective acknowledgment.* If a wife's 
 acknowledgment is defective, she may make a new acknowledg- 
 ment, which will relate back where the rights of third parties do 
 not intervene.* 
 
 9. Proof by Subscribing Witnesses. — The statutes of many if not 
 all the States provide for proving the execution of deeds and other 
 instruments intended to be recorded by the oath of a subscribing 
 witness or withesses, or, when the witnesses cannot be had, by 
 proof of the handwriting of the grantor and witnesses, which shall 
 have the same effect as an acknowledgment. But the practice is 
 very seldom resorted to. A defect in, or want of, an acknowledg- 
 ment may frequently be cured in this way. But where a married 
 woman is required to be examined by the officer, she must, in 
 general, be present and acknowledge the instrument.^ 
 
 10. Married Women. — At common law a married woman could 
 not convey land by deed,* The statutes which exist in the several 
 
 1. 'Durfee v. Garvey, 65 CJ. 406; En- 
 terprise T. Co. V. Sheedy, 103 Pa. St. 492. 
 
 2. Cohail V. Mutual, etc., Assoc, 61 
 All. 232. 
 
 8. Martindale on Conveyancing. §266. 
 See Wood v. Harrow, 11 Johns. (N. Y.) 
 434; Parker v. Phillips, g Cow. (N. Y.) 
 94; Jackson v. Vickory, i Wend. (N. Y.) 
 406; Johnson v. Prewitt, 32 Mo. 553; 
 Simpson v. Simpson, 93 N. Car. 373; 
 Davis V. Higgins, 91 N. Car. 382. 
 
 When a deed has been duly acknowl- 
 edged, although there appears to have 
 been a subscribing witness, it is not 
 necessary to call him for the purpose of 
 proving its execution. Simmons v. 
 Havens, loi N. Y. 427. 
 
 Art. 5008 Pasch. Dig. (Tex.) provides 
 for that purpose as follows: "The proof 
 of any instrument of writing for the pur- 
 pose of being recorded shall be by one or 
 more of the subscribing witnesses per- 
 sonally appearing before some officer 
 authorised to take such proof, and stat- 
 ing, on oath, that he or they saw the 
 grantor or person who executed such in- 
 strument subscribe the same; or that the 
 grantor or person who executed such in- 
 strument of writing acknowledged in his 
 or their presence that he had subscribed 
 and executed the same for the purposes 
 and consideration therein stated; and 
 that he or they had signed the same as 
 witnesses at the request of the grantor or 
 person who executed such instrument; 
 and the officer taking such proof shall 
 make a certificate thereof, sign and seal 
 the same with his official seal." Held, 
 
 163 
 
 that the absence of the names of the 
 witnesses in the certificate invalidated it. 
 McDaniel v. Needham, 61 Tex. 269. 
 
 4. 2 Black. Com. 291, 292; Martin v. 
 Dwelly, 6 Wend. (N. Y.) 9; s. c, 21 Am. 
 Dec. 245; Davis v. Andrews, 30 Vt. 58i; 
 Pratt V. Battles, 28 Vt. .685; Concord 
 Bank v. Bellis, 10 Cush. (Mass.) 277; 
 Lowell V. Daniels, 2 Gray (Mass.), l6i; 
 Dow V. Jewell, 18 N. H. 340; Thayer v. 
 Torrey, 37 N. J. L 339; Perrine v. Per- 
 rine, 3 Stock. (N.J.) 144; Johns v. Rear- 
 don, II Md. 465; Young V. State, 7 G. & 
 J. (Md.)253; Lindley w. Smith, 46 III. 523; 
 Hughes V. Lane, 11 111. 123; Reynolds z/. 
 Kingsbury, 15 Iowa, 238; Russell v. 
 Rumsey, 35 111. 362; Stuart v. Button, 39 
 111. 91; Baxter V. Bodkin, 25 Ind. 172; 
 Owen V. Norris, 5 Blackf. (Ind.) 479; 
 Dewey t). Campau. 4 Mich. 565; Pribble 
 V. Hall, 13 Bush (Ky.), 61; Cope j/. Meeks, 
 3 Head (Tenn.), 388; Laird v. Scott, 5 
 Heisk. (Tenn.) 314; Harston v. Doe, 12 
 Leigh (Va.), 445; Grove v. Zumbro, 14 
 Gratt. (Va.).50l; Lefevre v. Murdock, 
 Wright (Ohio), 205; Ward v. Mcintosh, 
 12 Ohio St. 231; Good v. Zercher, 12 
 Ohio St. 364; Degenhart v. Cracraft, 36 
 Ohio St. 549; Koltenbrock v. Cracraft, 
 36 Ohio St. 584; Tubbs v. Gatewood, 26 
 Ark. 128; Little v. Dodge, 32 Ark. 453; 
 Landers v. Bolton, 26 Cal. 408, Ewald v. 
 Corbett, 32 Cal. 493-, Goode v. Smith, 13 
 Cal. 81; Chauvin w. Wagner, 18 Mo. 531; 
 Wamsell w. Kem. 57 Mo. 478, Steffen t; . 
 Bauer, 70 Mo. 399; Bartlett v. O'Dono- 
 hue, 72 Mo. 563, Goffz/. Roberts, 72 Mo. 
 570; Bernard v. Elder, 50 Miss. 336^ 
 
JKairied Vomen. 
 
 ACKNO WLEDGMENT. 
 
 State Statutes. 
 
 States authorizing conveyance of land by married women carefully 
 .regulate the manner of taking and forms of acknowledgment ; and 
 such statutes must, either strictly or in effect, substantially be fol- 
 lowed. * 
 
 Allen w. Lenoir, 53 Miss. 321; Hathaivay 
 s). Davenport, 2 Jones L. (N. Car.) 152. 
 
 1. Mason v. Brock, 12 111. 273; s. c... 52 
 Am. Dec. 490; Livingston v Kettelle, i 
 Cilm. (111.) 116; s. c, 41 Am. Dec. 166; 
 Hughes V. Lane, 11 111. 123; s. c, 50 Am. 
 Dec.434; Calumet, etc., Co. v. Russell, 68 
 III. 426; Coleman w. Billings, 89 111. 183; 
 Shroder v. Keller, 84 111. 46; Chesnut v. 
 Shane, 16 Ohio, 599; s. c, 49 Am. Dec. 
 387; Purcell V. Goshorn, 17 Ohio, 105; s. 
 c, 49 Am. Dec. 448'; Carr v. Williams, 
 10 Ohio, 305; s. c, 36 Am. Dec. 87; 
 Degenhart v. Cracraft, 36 Ohio St. 549; 
 Scott v. Purcell, 7 Blackf. (Ind.) 66; s. 
 c, 39 Am. Dec. 453; Reynolds v. Kings- 
 bury, 15 Iowa, 238; Goode v. Smith, 13 
 Cal. 81; Landers v. Bolton, 26 Cal. 439; 
 Ewald V. Corbett, 32 Cal. 493; Leonis v. 
 Lazzarovich, 55 Cal. 52; Muir v. Gallo- 
 way, 61 Cal. 498; Chauvin v. Wagner, 18 
 Mo. 531; Wamsell v. Kem, 57 Mo. 478; 
 Tubbs V. Gatewood, 26 Ark. 128; Little 
 ■u. Dodge, 32 Ark. 453; Wentworth v. 
 Clark, 33 Ark. 432; Shryock v. Cannon, 
 39 Ark. 434; Belcher v. Weaver, 46 Tex. 
 293; s. c, 26 Am. Rep. 267; Looney v. 
 Adamson, 48 Tex. 619; Jourdan w. Jour- 
 dan, 9 S. & R. (Pa.) 268; s. c, II Am. 
 Dec. 730; Martin v. Dwelly, 6 Wend. 
 (N. Y.) 9; s. c, 21 Am. Dec. 245; Mer- 
 jam V. Harsen, 2 Barb. Ch. (N. Y.) 232; 
 Den 11, Geiger, 9 N. J. L. 225; Thayer v. 
 Torrey, 37 N. J. L. 339; Young w. State, 
 7 Gill & J (Md.) 253; Grave v. Todd, 41 
 Md. 633; s. <:.,. 20 Am. Rep. 76; Harston 
 ■V. Doe, 12 Leigh (Va.), 445; Lansihornz'. 
 Hobson, 4 Leigh (Va.), 224; Grove v. 
 2umbro, 14 Gratt. (Va.) 501; Den u. 
 Lewis, 8 Ired. (N. Car.) 70; s. c, 47 Am. 
 Dec. 338; Kottman v. Ayer, i Strob. (S. 
 Car.) 552; James w. Fisk, 9 S. & M. 
 ■(Miss.) 144; s. c, 47 Am. Dec. iii; Ber- 
 nard V. Elder, 50 Miss. 336; Allen v. 
 Lenoir, 53 Miss. 321; Hendersons. Rice, 
 I Caldw. (Tenn.) 224; Laird v. Scott, 5 
 Heisk. (Tenn.) 314; Gregory v. Ford, 5 
 B. Mon. (Ky.) 471; Nantz v. Bailey, 3 
 Dana (Ky.), iii; Martin v. Davidson, 3 
 Bush (Ky.), 572; Pribble v. Hall, 13 
 Bush (Ky.), 61. 
 
 Arkansas. — Since the adoption of the 
 Arkansas constitution of 1874, no ac- 
 knowledgment by a married woman of 
 her deed of conveyance of her separate 
 property is necessary. Donohue v. Mills, 
 41 Ark. 421. • 
 
 lUiuois, — The act of March 27, 1869, 
 
 provides that any feme cov.ert, being 
 above the age of eighteen years, joining 
 with her husband in the execution of any 
 deed, mortgage, conveyance, power of 
 attorney, or other writing of or relating 
 to the sale, conveyance, or other disposi- 
 tion of lands or real estate, should be 
 bound and concluded by the same, in re- 
 spect to her right, title, claim, interest, or 
 dower in such estate, as if she were sole 
 and of full age; and the acknowledgment 
 or proof of such deed, mortgage, convey- 
 ance, power of attorney, or other writing 
 might be the same as if she were sole. 
 Of this act this court, in Hogan v. tiogan, 
 89 111. 431, said: "This statutory enact- 
 ment worked a marked change in the 
 law. Thereafter the acknowledgment 
 ceased to be the effective means to work 
 the transfer of title. The certificate of 
 her acknowledgment might thenceforth 
 have been the same as that required in 
 the case of a. feme sole; and without any 
 acknowledgment whatever, proof of her 
 execution of a conveyance might have 
 been made as at common law. 'o, also, 
 from that time forth, her contrac: in writ- 
 ing, made jointly with her husband, for 
 the disposition of her lands, became bind- 
 ing upon her, and might have been, en- 
 forced in a court of chancery, and she 
 compelled to a specific performance of 
 the same." And so, too, for the same 
 reason, the deed of a married vroman 
 may be reformed the same as one of a 
 woman unmarried. Knox v. Brady, 74 
 111. 476; Edwards z;. Schoeneman, 104 111. 
 278; Bradshaw v. Atkins, no 111. 323. 
 
 The certificate of acknowledgment of 
 a married woman to a, conveyance which 
 omits "and for the purposes therein ex- 
 pressed" is defective, and vitiates the 
 validity of the conveyance. Currie v. 
 Kerr, 11 Lea (Tenn.), 138. 
 
 Though the statute must be complied 
 with in order to pass title to a married 
 woman's separate property, it does not 
 necessarily follow that an instrument 
 willingly executed by her, and actually 
 acknowledged as required by law, is ab- 
 solutely void, simply because of the 
 officer's failure to make the proper certifi- 
 cate which the facts authorized, and which 
 the law required him to make. Johnson 
 V. Taylor, 60 Tex. 360. 
 
 The acknowledgment of a married 
 woman of the execution of a deed con- 
 veying her separate property which ac- 
 
 164 
 
Harried Women. 
 
 ACKNO WLEDGMENT. 
 
 Certificate, 
 
 The certificate is an essential part of the due execution of a deed 
 by which the real estate of a married woman is to be transfe red. 
 It cannot be aided by parol proof,* or corrected in equity;* it is 
 prima-facie evidence that the statute has been complied with,^ and, 
 except as against bona-fide purchasers,* it may be impeached for 
 fraud.^ 
 
 Where the statute requires an examination of the wife apart 
 from her husband, the failure to do so, and have such examination 
 appear in the certificate substantially as the statute prescribes, is 
 
 knovvledgment states that she made her- 
 self a party to the deed " for the purpose 
 of relinquishing her right of dower" in 
 the lands described, she having no right 
 of dower, present or prospective, but an 
 estate in fee, must be considered and con- 
 strued to b"; an acknowledgment of the 
 due execution according to the import of 
 the language of the deed. Evans v. 
 Summerlin, 19 Fla. 858. 
 
 In a deed by husband and wife, convey- 
 ing land patented to the husband, as as- 
 signee of a certificate, it is not necessary, 
 as against one not a stranger to the title, 
 that the separate acknowledgment of the 
 wife should be in accordance with the 
 statute regulating conveyances of her 
 separate estate, there being nothing to 
 show that the wife really owned the land 
 in her own separate right. Tom v. 
 Sayers, 64 Tex. 339. 
 
 1. Jourdan w. Jourdan, 9 Serg. & R. 
 (Pa.) 268; s. c, II Am. Dec. 724; Robin- 
 son V. Noel, 49 Miss. 253; Willis v. 
 Gattman. 53 Miss. 721; Leftwitch v. 
 Neal, 7 W. Va. 569; First Nat. Bank v. 
 Paul, 75 Va. 594; s. c, 40 Am. Rep. 740; 
 Harty w. Ladd, 3 Oregon. 353; Pendleton 
 V. Buitton, 3 Conn. 406; Hayden v. West- 
 cott, II Conn. 129; Martin v. Hargar- 
 dine, 46 111. 322; Graham v. Anderson, 
 42 111. 514; O'Terrall v. Simplot, 4 Iowa, 
 381; Smith V. Hunt, 13 Ohio, 260; s. c, 
 42 Am. Dec. 201 ; Gray v. Ulrich, 8 
 Kan. 112. See Elliott v. Piersol, i Mc- 
 Lean (U. S.),ii; s. c, I Peters (U.S.). 328.. 
 
 In such a case, the feme covert will not 
 be permitted by parol evidence to contra- 
 dict the facts set out in the certificate of 
 her privy examination, acknowledgment, 
 and declaration, so as to avoid the effect 
 of the deed of trust, unless she first estab- 
 lish by parol evidence, satisfactorily, that 
 with the concurrence of those claiming 
 under the deed of trust, the married 
 woman has been defrauded or imposed 
 upon by the pretended privy examination, 
 acknowledgment, and declaration. Rol- 
 lins V. Menager, 22 W. Va. 461. 
 
 2. Barnett v. Shackelford, 6 J. J. 
 Marsh (Ky.), 532, s. c, 22 Am. Dec. 100; 
 
 \65 
 
 Campbell V. Taul, 3 Yerg. (Tenn.) 548; 
 Shields v. Netherlands, 5 Lea (Tenn.), 
 193; Shields v. Netherland, 5 Lea 
 (Tenn.), 194; Barrett w. Tewsbury, 9 Cal. 
 13; Gebb V. Rose, 40 Md. 387; Grove v. 
 Todd, 41 Md. 633; Sillman v. Cummins, 
 13 Ohio, 116; Kotenbrock J/. Cracraft, 36 
 Ohio St. 584; Grapengather v. Fejer- 
 vary, 9 Iowa, 163; Wannell v. Kern, 51 
 Mo. 150; Russell V. Rumsey, 35 111. 362; 
 Lindley v. Smith, 58 111. 250; Dickinson 
 V. Glenny, 27 Conn. 104; Lane v. Mc- 
 Keen, 15 Me. 304; Townsley v. Chapin, 
 12 Allen (Mass.), 476; Jewett v. Davis, 
 10 Allen (Mass.), 68; Martin v. Dwelly, 
 6 Wend. (N. Y.) 9; Drury v. Foster, 2 
 Wall. (U. S ) 24. 
 
 Although a married woman cannot be 
 compelled to execute the acknowledg- 
 ment, yet a court of equity will enforce 
 her contract. Burns v. McGregor. 90 N. 
 Car. 222. Compare Williams v. Baker, 71 
 Pa. St. 476. See Certificate, /«^ p. 
 170. 
 
 The certificate to the deed of a married 
 woman may be amended by supplying 
 the omitted words, under section 2082 of 
 the Code, and will relate to the execution 
 of the deed as between the vendor and 
 vendee, but not to the prejudice of inter- 
 vening creditors or bona-fide purchasers. 
 Stroud V. McDaniel, 12 Lea (Tenn.), 
 617. 
 
 3, Young V. Duvall, 109 U. S. 573; 
 Marsh v. Mitchell, 26 N. J. Eq. 497; De 
 Arnaz v. Escandon, 59 Cal. 486, and 
 cases cited, ante, p. 147, note 2. 
 
 4, See cases cited, ante, p. 158, note 3. 
 
 5, See Frauds, ante, p. 160. 
 
 There must be some allegation of 
 fraud, or imposition practised toward the 
 wife, — some fraudulent combination be. 
 tween the parties interested and the 
 officer taking the acknowledgment- 
 Worrell V. McDonald, 66 Ala. 572, 
 
 See White v. Graves, 107 Mass. 325; 
 s. c, 9 Am. Rep. 38; Singer Manuf. Co. 
 V. Rook, 84 Pa. St. 442;. s. c, 24 Am 
 Rep. 204; Kerr v. Russell, 69 111. 666; 
 s. c, 18 Am. Rep. 634; Johnson v. Wal. 
 lace, 53 Miss. 331; s. c., 24 Am. Rep. 699 
 
Married Womin. 
 
 ACKNO WLEDGMENT. 
 
 Privy Examination. 
 
 a fatal defect in the acknowledgment. * It is also an incurable de- 
 Michael, 21 W. Va. 568; Laidley v. 
 Knight, 23 W. Va. 735. 
 
 If proper privy examination was made 
 and an improper certificate made by mis- 
 take, same may be corrected; but if 
 proper examination was not made, it 
 cannot be cured. It is not incompetent 
 for the officer to testify tflat the proper 
 privy examination was not taken. Garth 
 V. Fort, 15 Lea (Tenn.), 683. SeeKil- 
 bourn v. Fury; 26 Ohio St. 153. 
 
 The examination must be personal; it 
 cannot be made by attorney. Dawson 
 V, Shirley, 6 Blackf. (Ind.) 531. 
 
 Where the certificate shows that the 
 wife was privately examined after she 
 had executed the acknowledgment, it is 
 fatally defective. McMullen v. Eagan, 
 21 W. Va. 233; Laidley v. Knight, 23 
 W. Va. 735. 
 
 An examination " separate and apart " 
 means an examination out of the pres- 
 ence of the husband, so that he cannot 
 communicate by word or look or mo- 
 tion. Belo w. Mayes, 79 Mo. 76. Steffen 
 V. Bauer, 70 Mo. 399. See McCandless 
 V. Engle, 51 Pa. St. 309; Ifavanugh v. 
 Day, 10 R. I. 393. 
 
 The examination may be made through 
 an interpreter, but he iriust be properly 
 sworn. Dewey v. Campeau, 4 Mich. 
 565; Norton v. Meader. 4 Sawy. (U. S.) 
 603. Compare, as to swearing interpreter, 
 Walter w. Weaver, 57 Tex. 569. 
 
 Where the wife claimed that the inter- 
 preter did correctly interpret the con- 
 tents of the deed, but told her it was a 
 mortgage, held, that the certificate was 
 conclusive of the facts recited. De Ar- 
 naz V. Escandon, 59 Cal. 486. 
 
 A widow who has paid the interest 
 upon a mortgage will be deemed to have 
 ratified it, and will be estopped to deny 
 that the requisite private examination 
 was made. O'Keefe v. Handy, 31 La. 
 Ann. 832; S. P. Riggs v. Boylan, 4 BIss. 
 (U. S.) 445. 
 
 An examination by one officer where 
 the statute requires it to be made by t<vo 
 is invalid. Malloy v. Bruden, 88 N. Car. 
 
 305- 
 
 Where land is conveyed in trust for a 
 married woman, the acknowledgment 
 need not be taken "separate and apart." 
 Sharp V. McPike, 62 Mo. 300. 
 
 As to informalities which vary from 
 the statutory forms, see this title under, 
 subject Mistake, ante, p. 149. 
 
 The omission of " separately" in form 
 ' ' separate and apart " held a fatal defect. 
 Dewey v. Campau, 4 Mich. 565; Rice 
 V. Peacock, 37 Tex. 392. 
 
 1. 2 Kent. Com., 150; Pratt v. Battels, 
 28 Vt. 685; Bool V. Mix, 17 Wend. (N.Y.) 
 iig; Elwood w. Klock, 13 Barb. (N. Y.; 
 50; Blood V. Humphrey, 17 Barb. (N.Y.) 
 660; Dennis v. Tarpenny, 20 Barb. (N.Y.) 
 371; Albany Ins. Co. v. Bay, 4 N. Y. 9; 
 Armstrong v. Ross, 20 N. J. Eq. 109; 
 Marsh v. Mitchell, 26 N. J. Eq. 497; 
 Thayer v. Torrey, 37 N. J. L. 339; 
 McCandless v. Engle, 51 Pa. St. 309; 
 Jourdan v. Jourdan, 9 S. & R. (Pa.) 268; 
 s. c, II Am. Dec. 724; Webster v. Hall, 
 
 1 H. & McH. (Md.) 19; s. c, I Am. Dec. 
 370; Laughlin v. Fream, 14 W. Va. 322; 
 Bryam v. Stump, 8 Graft. (Va.) 241; 
 First Nat. Bank v. Paul, 75 Va. 594; s. c, 
 40 Am. Rep. 740; Barton v. Morris, 15 
 Ohio, 408; Muir v. Galloway, 61 Cal. 498; 
 Nippel V. Hammond, 4 Colo. 211; Sib- 
 ley V. Johnson, t Mich. 380; Dewey v. 
 Campau, 4 Mich. 565; Jordan v. Carey, 
 
 2 Ind. 385; Pardun v. Dobesberger, 3 
 Ind. 389; Mariner v. Saunders, 5 Gilm. 
 (111.) 113; Garrett v. Moss, 22 111. 363; 
 Lyon V. Kain, 36 111. 370; Trustees v. 
 Davidson, 65 111. 124; Edgerton z/. Jones, 
 10 Mirin. 427; Harty v. Ladd, 3 Oregon, 
 353; Kendall v. Miller, 9 Cal. 591; Rice 
 V. Peacock, 37 Tex. 392; Stillwell v. 
 Adams, 29 Ark. 346; Shryocki/. Cannon, 
 39 Ark. 434; Warren v. Brown, 25 Miss. 
 66; Love v. Taylor, 26 Miss. 567; Russ 
 ■u. Wingate, 30 Miss. 440; Willis v. Gatt- 
 man, 53 Miss. 721; Kennedy z/. Price, 57 
 Miss. 771; Hartley v. Ferrell, 9 Fla. 374; 
 Askew V. Daniel, 5 Ired. Eq. (N. Car.) 
 321; Den'z/. Fletcher, i Ired. L. (N. Car.) 
 313; Den V. Ashbee, 9 Ired. L. (N. Car.) 
 353; Phillips V. Green, 3 A K. Marsh 
 (Ky.) 7; s. c, 13 Am. Dec. 124; Apple- 
 gate ■t'. Gracy, g Dana (Ky.), 214; Steele 
 z/. Lewis, iT. B. Mon. (Ky.) 48; McCann 
 V. Edwards, 6 B. .Mon. (Ky.) 208; Allen 
 V. Shortridge, I Dur. (Ky.) 34; EUett v. 
 Richardson, g Baxt. (Tenn.) 293; McCal- 
 lum V. Petigrew, 10 Heisk. (Tenn.) 394; 
 Mount V. Kesterson, 6 Coldw. (Tenn.) 
 452; Bagby v. Emberson, 79 Mo. 139; 
 Deery v. Cray, 5 Wall. (U. S.) 795. 
 
 Compare Catlin v. Ware, 9 Mass. 218; 
 Bernard v. Elder, 50 Miss. 336; Allen v. 
 Reynolds, 4 Jones & S. (N. Y.) 297; 
 Ruffner v. McLenan, 16 Ohio, 639; Ayres 
 V. McConnel, 2 Scam. (111.) 30; Cole- 
 man V. Billings, 89 111. 183; Jordan v. 
 Carey, 2 Ind. 385; Fleming v. Potter, 14 
 Ind. 486; Rice v. Peacock, 37 Tex. 392; 
 Gilbraith v. Gallivan, 78 Mo. 452; Clay- 
 ton V. Rose, 87 N. Car. 106. 
 
 And if such certificate shows that such 
 explanation was before the privy exami- 
 nation, it is fatally defective. Watson v. 
 
 166 
 
Harried Women, 
 
 ACKNO WLEDGMENT. 
 
 Friyy Examination. 
 
 feet if it does not appear from the certificate that the contents of 
 the deed were made known to the wife •/ so, also, if it does not ap- 
 
 The words " separate and apart" held 
 equivalent to " privily examined by such 
 officer apart from her husband." 
 Coombes v. Thomas, 57 Tex. 321. 
 
 "Apart "is not equivalent to "out of 
 hearing." Butterfield v. Beale, 3 Ind. 
 203. 
 
 A certificate of acknowledgment of a 
 deed was in the words and figures fol- 
 lowing: " State of California, City and 
 County of San Francisco, ss.: On this 
 thirteenth day of March, A.D. 1854, be- 
 fore me, a notary public in and for said 
 county, personally appeared J. G. and 
 Jane T., his wife, to me severally known 
 to be the persons described in, and, who 
 executed, the within conveyance; and 
 they severally acknowledged to me that 
 they had executed the same freely and 
 voluntarily, for uses and purposes there- 
 in mentioned; and the said JaneT., hav- 
 ing been by me made acquainted with 
 the contents of the said deed on a private 
 examination, separate and apart from 
 her said husband, acknowledged to me 
 that she had executed said deed freely 
 and voluntarily, without any fear, com- 
 pulsion, or undue influence on the part of 
 her said husband, and that she did not 
 wish to retract the execution of the same. 
 In witness whereof, I have hereto set 
 my hand and official seal. Gilbert A. 
 Grant, Notary Public." Section 23 of 
 that act required that the certificate of 
 acknowledgment of a deed of a married 
 woman should substantially show " that 
 she was made acquainted with the con- 
 tents of such conveyance, and acknowl- 
 edged, on examination apart from and 
 without the hearing of her husband, that 
 she executed the same freely and volun- 
 tarily," etc. Held, the certificate of ac- 
 knowledgment was sufficient in sub- 
 stance. Muir V. Galloway, 61 Cal. 498. 
 
 The notary public went to the house of 
 W. and wife, with the deed, for the pur- 
 pose of taking the acknowledgment. The 
 house consisted of one room, fourteen 
 feet square. W. was sick, and lying on 
 the floor in the centre of the room. Mrs. 
 W., the plaintiff, came in a few 
 minutes after the notary went into the 
 room. The deed, was presented by the 
 notary, and partly read by both Webb 
 and wife, and they not being able to 
 read it, it was read to them by the no- 
 tary public, and the contents of the deed 
 were fully made known to them by the 
 notary. This was when both the hus- 
 band and the wife were present. W. first 
 signed the deed, then his wife signed the 
 
 same. This was all done in the presence 
 of each other. The contents of the deed 
 were not made known to her by the no- 
 tary except in the presence of her hus- 
 band, as before stated, and being at the 
 same time that the deed was read to him. 
 She had been before informed of the 
 transaction by her husband. The plain- 
 tiff went to an outside kitchen house, 
 to get a drink for the notary, and on her 
 return the notary met her at the door of 
 the room in which her husband was ly- 
 ing. The notary was just inside of the 
 room and she was about to step in, 
 when he asked her if she signed the deed 
 freely and without compulsion or undue 
 iflfluence of her husband, and she an- 
 swered that she did. During the entire 
 transaction the husband was lying on the 
 floor in the room. Held, that it was not 
 a private examination. Webb v. Webb, 
 87 Mo. 540. 
 
 A certificate of acknowledgment by a 
 married woman of a deed recited that 
 she acknowledged, on an examination 
 apart from her husband, that she exe- 
 cuted the same freely, etc. Held, that it 
 was not defective because it omitted to 
 recite that the examination was "sepa- 
 rate" as well as "apart" from her hus- 
 band. Belo V. Mayes, 79 Mo. 67. 
 
 The Illinois statute of 1819 did not re- 
 quire the oflScer to state in his certificate 
 that she had been privately examined. 
 Coleman v. Billings, 89 111. 183. 
 
 In Massachusetts, New York, Arizona, 
 Illinois, Wisconsin, and Arkansas, a state- 
 ment in the certificate of private exam- 
 ination is not required. White v. Graves, 
 107 Mass. 325; Spurgin v. Traub, 65 111. 
 170; Hawes v. Mann, 8 Biss. (U. S.) 21; 
 Donahue v. Mills, 41 Ark. 421; Allen v. 
 Reynolds, 36 N. Y. Superior Ct. 297 r 
 Miller v. Fisher, i Ariz. 232; Hayes v. 
 Frey, 54 Wis. 503; Stone v. Stone, 43 
 Ark. 161. 
 
 1. Bateman's Petition, 11 R. I. 393; 
 Barnet v. Barnet, 15 S. & R, (Pa.) 72, 
 s. c, 16 Am. Dec. 516; Crid|;e v. Hare, 
 98 Pa. St. 561; Harston v. Randolph. 12 
 Leigh (Va.), 495; Boiling v. Teel, 76 Va. 
 487; Roney v. Moss, 76 Ala. 491; Mc- 
 Muilin V. Eagan, 21 W, Va. 233; Wat- 
 son 11. Michael, 21 W. Va. 56S; Laughlin 
 V. Fream, 14 W. Va. 322; O'Farrell v. 
 Simplot, 4 Greene (Iowa), 162; Bagby v. , 
 Emberson, 79 Mo. 139; Burnett v. Mc- 
 Cluey, 78 Mo. 676; Wannell v. Kern, 57 
 Mo. 478; Bagby v. Emberson, 79 Mo. 
 139; Johnson v. Bryan, 63 Tex. 623; 
 Ruleman v. Pritchett, 56 Tex. 482. 
 
 167 
 
Carried Women, 
 
 ACKNO WLEDGMENT. 
 
 Friyy ExanuQation, 
 
 pear that she " does not wish to retract ;" ^ or that she willingly 
 executes the deed ;* or that she freely acts without any du- 
 
 Moorman 71. Board, 11 Bush (Ky.), 135; 
 Pease v. Barbiers, 10 Cal. 436; Hutchin- 
 son V. Ainsworth, 63 Cal. 286. 
 
 The words "and the deed being read 
 to her" are not substantially the same 
 as the words " being fully explained to 
 her." Watson v. Michael, 21 W. Va. 
 568. 
 
 Where it appears to the court, or ofB- 
 cer taking the acknowledgment of a mar- 
 ried woman to a deed, that she is ac- 
 quainted with its contents, and that they 
 are familiarly known to her, he would be 
 justified in certifying that she was made 
 acquainted with the contents, and the de- 
 sign of the law would be accomplished, 
 ■although the officer imparted no infor- 
 mation to her. Drew v. Arnold, 85 Mo. 
 126. 
 
 But it may be remarked that a private 
 explanation of the contents of the deed is 
 not required by the Miss6uri statute, 
 Belo V. Mayes, 79 Mo. 67; Webb v. 
 Webb, 87 Mo. 510; Ray v. Crouch, 10 
 Mo. App. 321. Compare Steffen v. Bauer, 
 70 Mo. 3gg. 
 
 The phrase "she fully understood the 
 contents of said deed " held not equiv- 
 alent to "having the same fully ex- 
 plained to her." Langton v. Marshall, 
 59 Tex. 296. 
 
 Husband and wife sign deed convey- 
 ing her inheritance in land, but the cer- 
 tificate of her acknowledgment fails to 
 state that "the deed was explained to 
 the wife." The husband died in 1865; 
 the wife in 1870. In ejectment by the 
 wife's heira to recover the land, held, 
 the deed was insufficient to pass the 
 wife's interest, and her heirs are entitled 
 to recover. The certificate must show 
 that she knew what she was doing, did 
 it willingly, and does not wish to retract, 
 and substantially comply with the terms 
 of the law in every particular. Boiling 
 ■v. Teel, 76 Va. 487. 
 
 Where the married woman did not 
 speak English, and the deed was ex- 
 plained to her by the officer through an 
 Interpreter of her own selection, she can- 
 not be heard to say that he was incompe- 
 tent or corrupt, or failed to interpret cor- 
 rectly. The proper practice in such 
 cases is tor the interpreter to be sworn. 
 Walter v. Weaver, 57 Tex. 569. 
 
 Where the certificate states that she 
 was made acquainted with the contents 
 of the instrument, without stating that 
 this was done by the certifying officer or 
 any particular person held, a valid ac- 
 knowledgment. Jansen v. McCahill, 22 
 
 Cal. 563. See Kavanagh v. Day, 10 R. I. 
 393; Thomas v. Meier, 18 Mo. 573, 
 Gregory v. Ford, 5 B. Mon. (Ky.)47r; 
 Martin v. Davidson, 3 Bush (Ky.), 572; 
 Tourville v. Pierson, 39 111. 446. 
 
 The Ohio statute of 1831 required the 
 officer to read or otherwise make known 
 to the wife the contents of the deed; but 
 it was held that the officer was not re- 
 quired to certify that he had done so. 
 Card V. Patterson, 5 Ohio St. 319; Chest- 
 nut V. Shane, 16 Ohio, 599; S. P. Stevens 
 V. Doe, 6 Blackf. (Ind.)475; Gregory z/. 
 Ford, 5 B. Mon. (Ky.) 471; Coleman z;. 
 Billings, 89 111. 183. 
 
 An acknowledgmient of a married wo- 
 man who was certified 10 be deaf and 
 dumb, that the nature of the transaction 
 was duly explained to her by signs, and 
 that she had in like manner signified her 
 assent, was allowed by the court. In re 
 Harper, 6 M. & G. 732; 7 Scott, N. R. 
 
 431. 
 
 1. Linn v. Patton, 10 W. Va. 187; 
 Bateman's Petition, 11 R. I. 5S5; Mc- 
 Mullin V. Eagan, 21 W. Va. 233; Grove 
 V. Zumbro, 14 Gratt. (Va.) 501 ; Belcher v. 
 Weaver, 46 Tex. 293; s. c, 26 Am. Rep. 
 267; Ruleman v. Pritchett, 56 Tex. 482; 
 Le Bourgeoise J". McNamara, 5 Mo. App. 
 576: Landers v. Bolton, 26 Cal. 548. 
 
 The word "contract" ^^/<^ equivalent 
 to "retract," Belcher v. Weaver; 41 
 Tex. 293; s. c, 26 Am, Rep. 267. 
 
 In Ohio the omission of the words 
 "that she is still satisfied therewith" 
 held a fatal defect. Ward v. Mcintosh, 
 12 Ohio St. 231. To same effect as re- 
 gards the words "and does not wish to 
 retract," Hughes v. Lane, 11 III. 123; 
 Chauvin v. Wagner, 13 Mo. 531. 
 
 2. Pratt V. Battels, 28 Vi. 685 ; Dennis 
 ■u. Tarpenny, 20 Barb. (N. Y.) 371; Gar- 
 rett V. Moss, 22 111. 363; McMullin v. 
 Eagan, 21 W. Va. 233; Leftwich v. Neal, 
 7 W. Va. 569; Bartlett v. Fleming, 3 W. 
 Va. 163; Bagby v. Emberson, 79 Mo. 
 139; Louden v. Blythe, 27 Pa. St. 22; 
 Bateman's Petition, 11 R. I. 585; Hen- 
 derson V, Rice, I Coldw. (Tenn.) 223; 
 Laird v. Scott, 5 Heisk. (Tenn.) 314; 
 Wright V. Duffield, 2 Baxt. (Tenn ) 218; 
 Blackburn v. Pennington, 8 B. Mon. 
 (Ky.) 217; Gill V. Fauntleroy, 8 B. Mon. 
 (Ky.) 177; Tubbs ii. Gatewood, 26 Ark, 
 128; Stillwell V. Adams, 29 Ark. 346, 
 Chaffe V. Oliver, 39 Ark. 531; Little v 
 Dodge, 32 Ark. 453; Bernard v. Elder, 
 50 Miss. 336; Jones v. Lewis, 8 Ired. L. 
 (N. Car.) 70; Belcher v. Weaver, 46 Tex, 
 293; s. c, 26 Am. Rep. 267. 
 
 168 
 
Harried Women 
 
 ^CKNO WLEDGMENT. Divorce-Abandonmeirt. 
 
 ress.* Where the statute requires an express relinquishment of 
 dower, the omission to so insert it is a fatal defect.* 
 
 11. Divorce — Abandonment,— A woman who has been divorced 
 a vinculo is a feme sole and may make a conveyance of her 
 property.^ Where a husband has abandoned his wife, and a 
 
 The word "understandingly" is equiv- 
 alent to "freely" and "voluntarily." 
 Anderson v. Bewley, li Heisk. (Tenn.) 
 2g; Moorman w. Board, etc., ii Bush 
 (Ky.), 135; Smith v. Elliott, 39 Tex. 201. 
 See Battin v. Bigelow, i Pet. C. C. 452. 
 
 "Their voluntary act and deed" held 
 not a fatal defect. Brown v. Farran, 3 
 Ohio, 140. 
 
 The omission of the word "freely" 
 held not to be a fatal defect. Merriam 
 V. Harsen, 2 Barb. Ch. (N. Y.) 232. See 
 Allen V. Lenoir, 53 Miss. 321. 
 
 "Freely and of her own accord " is 
 equivalent to "freely as her voluntary 
 act and deed." Dundas v. Hitchcock, 12 
 How. (U. S.)256. 
 
 "Without any bribe, threat, or compul- 
 sion," equivalent to "willingly." Bel- 
 cher V. Weaver, 46 Tex. 293; s. c, 26 
 Am. Rep. 267. 
 
 "Desired" to acknowledge is not 
 equivalent to "willingly executed." 
 Bartlett v. Fleming, 3 W. Va. 163. 
 
 " In due form" not equivalent to "vol- 
 untarily." Lucas V. Cobbs, i Dev. & B. 
 (N. Car.) 228. 
 
 Omission of words " ill usage" in stat- 
 utory form is fatal. Hawkins v. Burress, 
 I H. & J. (Md.) 513. 
 
 If the certificate does not show that 
 she executed the deed "without compul- 
 sion or undue influence of her husband," 
 the deed is void. Chaffe v. Oliver, 39 
 Ark. 531. 
 
 Voluntary Appearance. — It is not essen- 
 tial that the officer's certificate show that 
 she comes voluntarily. Mickel v. Gard- 
 ner, 41 Ark. 491. 
 
 1, Eadie v. Slimmon, 26 N. Y. g; 
 Motes V. Carter, 73 Ala. 553; Currie v. 
 Kerr, 11 Lea (Tenn.), 138; Kocourek v. 
 Marak, 54 Tex. 201; s. c, 38 Am. Rep. 
 623; Bagby v. Emberson, 79 Mo. 139; 
 Marston v. Brittenham, 76 111. 611; Tap- 
 ley V. Tapley, 10 Minn. 448; Wamboole 
 V. Foote, 2 Dak. i; Central Bank v. 
 Copeland, 18 Md. 305; Little v. Dodge, 
 32 Ark. 453, 
 
 A suit was brought to foreclose a 
 mortgage made by husband and wife of 
 land, a part of which belonged to him 
 and a part to her. Her answer sets up 
 that he obtained her signature by physi- 
 cal violence, and that he and the officer 
 who took her acknowledgment, both of 
 whom died before her answer was filed. 
 
 pre- 
 
 represented to her that the mortgage did 
 not cover her land. Held, that her testi- 
 mony is not sufficient to impeach the 
 mortgage. Ins. Co. v. Nelson, 103 U. S. 
 544- 
 
 Where a note and mortgage by hus- 
 band and wife, and the certificate of ac- 
 knowledgment of the mortgage by botn, 
 are perfectly fair and regular on their 
 face, a defence against them by the wife 
 on the ground that they were executed 
 by her under undue influence and coer- 
 cion on the part of the husband, and that 
 she never in fact acknowledged the mort- 
 gage, can be sustained only upon per- 
 fectly clear, convincing and satisfactory 
 evidence; in general, the unsupported 
 testimony of the wife alone, to contra- 
 dict the certificate, will not be regarded 
 as sufficient. Smith v. Allis, 52 Wis. 337. 
 
 When the testimony relied on to im- 
 peach the certificate is based on the 
 fraud and duress' of the husband in pro- 
 curing the wife's signature, and the evi- 
 dence ofsuch fraud and duress proceeds 
 from the husband and wife only, their 
 credibility is affected by their interest; 
 and when (as in this case) the testimony 
 relates exclusively to occurrences be- 
 tween themselves, in the privacy of 
 domestic life, and is uncorroborated by 
 any other evidence, while the testimony 
 is full and positive that the wife was 
 informed of the contents of the convey- 
 ance, and that she voluntarily executed 
 and acknowledged it, the evidence is not 
 sufficient to overcome the certificate. 
 Smith V. McGuire, 67 Ala. 34. 
 
 A threat to arrest the husband, who 
 has committed a crime, is not duress as 
 regards the wife. Compton v. Bunker 
 Hill Bank, 96 111. 301; s. c, 36 Am. Rep. 
 147. A threat by the husband to poi- 
 son himself does not constitute duress. 
 Wright V. Remington, 41 N. J. L. 48; 
 s. c, 32 Am. Rep. 180. Compare Eadie 
 V. Slimmon, 26 N. Y. 9. 
 
 The word " restraint" held equivalent 
 to "constraint." Edmonson z<. Harris, 
 2 Tenn. Ch. 153. 
 
 2. Becker v. Quigg, 54 111. 390; Lind- 
 ley V. Smith, 46 111. 524; Thomas v. 
 Meier, 18 Mo. 573. 
 
 3. Piper v. May, 51 Ind. 283. See 
 Rosenthal v. Mayhugh, 33 Ohio St. 155. 
 
 Where a decree of divorce obtained by 
 ii married woman is void, but she as- 
 
 169 
 
A CKNO WLED GMENT—A CQ U A IN TED. 
 
 sumption of his death exists, and she has no other means of sup- 
 port than a house and lot on which they rqsided before such 
 abandonment, she may convey the property as 2, feme sole.^ 
 
 12. Legacy. — A release executed by a married woman of a legacy 
 charged upon land cannot be recorded unless it be separately 
 acknowledged by her.* 
 
 13. By Agent — Attorney. — When a deed is acknowledged by an 
 agent or attorney, in order to bind the principal it must be made 
 in his name. The signing must be expressed to be his act, done 
 by his agent or attorney. Consequently, both the names of the 
 principal and agent must, substantially, appear in the execution 
 of the deed, showing not only that the grant and seal were those 
 of the principal, but by whom these acts were done. If the deed 
 be the deed of the attorney, — as, for instance, if by it ke grants, or 
 he sets his seal, and the like, — it is void as to the principal.^ 
 
 14. By Order of Court. — When the legal title to land in trust 
 ■ was cast by descent upon a married woman, and the law required 
 
 that a deed executed by her should be acknowledged as executed 
 voluntarily, and she refused so to acknowledge it, the couft com- 
 pelled her by decree.* 
 
 ACftUAINTED. — When used in a certificate means to have a 
 substantial knowledge of the subject-matter of the paper to which 
 the certificate is afifixed.^ 
 
 sumesher maiden name, lives apart from 
 her husband, and continuously acts and 
 represents herself as a. feme sole, a deed 
 of conveyance of her separate real estate, 
 made and acknowledged by her as an 
 unmarried woman, is valid and binding. 
 Reis V. Lawrence, 63 Cal. 129; s. c, 49 
 Am. Rep. 83. 
 
 1. Rosenthal v. Mayhugh, 33 Ohio St, 
 155- 
 
 Married Woman living as Feme Sole. — 
 Wheremarried woman has lived in United 
 States separate and apart from her hus- 
 band for more than 20 years, he never 
 having been in the United States, and 
 during such time she has had no relations 
 with him. but has been living part of the 
 time under her maiden name, and part 
 of the time under the name and as the 
 wife of a man with whom she has formed 
 a meretricious connection, and she exe- 
 cuted a, deed as a feme sole of certain of 
 her -separate property acquired in the 
 United States, she will not be permitted 
 to fall back upon her marriage relation, 
 and avoid her deed on the ground that the 
 certificate of the notary does not recite 
 that she was examined "separate and 
 apart" from her husband: and such deed, 
 executed zsa. feme sole, will be held valid. 
 Hand V. Hand, 8 Pac. Repr. (Cal.) 705. 
 
 3. Powell's Appeal, 98 Pa. St. 403. 
 See French v. Strumberg, 52 Tex. 92. 
 
 3. 3 Washburne Real Prop. (4th Ed.) 
 277; Evans v. Wells, 22 Wend. (N. Y.) 
 325; Elwel V. Shaw, 16 Mass. 42; Fowler 
 V. Shearer, 7 Mass. 14; Brinley v. Shaw, 
 2 Cush. (Mass.) 337; Mussey v. Scott, 
 7 Cush. (Mass.) 215; Shanks v. Lancas- 
 ter, 5 Graft. (Va.) no; Hackney z;. Butts, 
 41 Ark. 394; McDonald v. Bear River, 
 etc., Co., 13 Cal. 235; Clarke v. Court- 
 ney, 5 Pet. (U. S.) 319. 
 
 Venue, — '■ Be it known that on this 
 thirtieth day of June, A.D. 1856, per- 
 sonally came before me James'O. Gill, 
 by his attorney in fact, Robert Whitacre, 
 the signer and sealer of the foregoing 
 deed, and acknowledged the same to be 
 his own free act and deed." Held, that 
 this certificate is, in effect, that Whitacre 
 appeared before the acknowledging 
 ofiicer as attorney in fact for Gill, and 
 acknowledged that the deed executed by 
 him as such attorney was Gill's free act 
 and deed, and is a sufficient acknowledg- 
 ment of Gill's deed. Bigelovv v. Living- 
 ston, 28 Minn. 31. 
 
 4. Perry on Trusts, § 48, citing Dun- 
 das V. Biddle, 2 Pa. St. 160. 
 
 Authorities for Acknowledgment. — 
 Washburne Real Prop. ; Tiedeman on 
 Real Prop. ; Martindale Convey. ; Boone 
 Real Pro^).; Profifatt on Notaries, 
 Cooley's Const. Lim. 
 
 5. Bohan v. Casey, 5 Mo. App. loi. 
 
 170 
 
ACQ UIESCED—ACQ UIRED—ACQ UITTAL. 
 
 ACQUIESCED. — This word denotes a mere submission to, and 
 not approbation of or assent to, the thing acquiesced in.'^ 
 
 ACaTJIESCEHCE. See ESTOPPEL. 
 
 ACQUIRED. — In the law of descent the word includes all lands 
 that came in any other waythan by gift, devise, or descent from a 
 parent or ancestor of a parent.* 
 
 In a California statute prohibiting the impairing of " rights ac- 
 quired " under provision which the act repealed, the right to resort 
 to an arbitrary presumption of detriment in an action for the 
 conversion of personal property, previous to the trial at which 
 the presumption would have arisen, was held not to be a " right 
 acquired " within the meaning of the act.^ 
 
 ACQUITTAL. — Where the accused was arraigned, a jury impan- 
 elled and sworn, and the cause given them in charge, no objection 
 being interposed by the accused to the indictment or other pro- 
 reedings, it was held that the dismissal of the indictment for an 
 alleged insufficiency, which did not really exist, operated as an ac- 
 quittal of the defendant.* 
 
 ACQUITTANCE. — This word denotes a release or written dis- 
 charge of a sum of money or debt due ; usually in the form of a 
 receipt.** 
 
 Cf. jEtna Fire Insurance Co. v. Tyter, 
 l6 Wend. (N. Y.) 385. 
 
 Personally acquainted with. — To be 
 *' personally acquainted with" and to 
 "know personally" are equivalent 
 phrases. Personal Icnowledge to the ex- 
 tent certified necessarily included the 
 personal identity of the ofBcers as well 
 as the incumbency of their offices. A 
 defect of such knowledge as to either 
 point would be inconsistent with the 
 language used, and falsify the certificate. 
 Kelly V. Calhoun, 5 Otto (U. S.), 710. 
 
 1. Allen V. McKeen, i Sumner, 276. 
 In order to negative submission to, or 
 acquiescence in an interruption to twenty 
 years' enjoyment of a light, it is not 
 necessary that the party interrupted shall 
 have brought an action or suit, or taken 
 any active steps to remove the obstruc- 
 tion : it is enough to show that he has in 
 a reasonable manner communicated to 
 the party causing the interruption that he 
 does not really submit to or acquiesce in 
 it. Glover v. Coleman, L. R. 10 C. P. 
 108. 
 
 2. Re Miller's Wills, 2 Lea (Tenn.), 54. 
 
 3. TuUv V. Tranor. 53 Cal. 274. 
 Otherwise acquired. — Irt the Tennessee 
 
 -statute of descents, where the words used 
 are "actually purchased, or otherwise ac- 
 quired," the last v/ords have a limited 
 meaning, as opposed to purchase by the 
 actual payment of money or considera- 
 
 tion, and do not include lands acquired 
 by descent. Roberts v. Jackson, 4 Yerg. 
 (Tenn.) 30S; Hoover v. Gregory, 10 
 Yerg. (Tenn.) 444. 
 
 4. Lee z;. State, 26 Ark. 260. "Where 
 the jury were discharged against the con- 
 sent of the defendants (in a case of mis- 
 demeanor only) because the district- 
 attorney was not prepared with evidence 
 to support the prosecution, such a dis- 
 charge was equivalent to an acquittal, 
 and the defendants could never be 
 brought to trial again for the same 
 offence.'' , People v. Barrett & Ward, 2 
 Cain's Cases (N. Y.), 304. So when the 
 accused in a criminal prosecution is put 
 upon trial, on a valid indictment, before 
 a legal jury, and the jury is discharged 
 by the court without good cause, and 
 without the consent of the defendant, he 
 has incurred the first peril, and the dis- 
 charge of the jury is equivalent to an ac- 
 quittal. Stale V. Walker, 26 Ind. 346. 
 Cf. Klock V. People, Parker's Crim. Rep. 
 (N. Y.) 676; Com. V. Cook et al., 6 S. & 
 R. (Pa.) 777; Mounts v. State, 14 Ohio, 
 295. 
 
 5. "A, discharge, acquittance, or re- 
 lease — call it what you will — is as valid 
 without a seal as with it." Milliken 
 etal. V. Brown, i S. & R. (Pa.) 398. 
 
 In Statute. — "The word acquittance, 
 although perhaps not, strictly speaking, 
 synonymous with receipt, includes it." 
 
 171 
 
Definition. 
 
 ACQ UITTED— ACROSS— ACT. 
 
 Judicial Act. 
 
 ACftUITTED. — This ^ord is a word of technical import, and 
 must be understood in its tfechnical sense, to wit, an acquittal on 
 trial by a jury.^ 
 
 ACROSS. — This word is used in its common acceptation, from 
 one side to the other, unless there is evidence that the parties in- 
 tended to use it in a different sense.** 
 
 ACT. — In the legal sense this word may be used to signify the 
 result of a public deliberation. Also a decree, edict, law, judg- 
 ment, resolve, award, determination. When a bill is duly passed 
 by a legislative body it becomes an act of that body ; that is, a 
 thing done.^ 
 
 State V. Shelters. 51 Vt. 102, where it was a way as to show that it was not intended 
 
 held that a writing in the connmon fornn 
 of a receipt for money paid is an acquit- 
 tance within the East. Stats, s. i, c. 114, 
 providing for the punishment of -those 
 who alter, forge, or counterfeit acquit- 
 tances. The document called a "clear- 
 ance" issued by friendly societies which 
 purports to be a certificate that the mem- 
 ber receiving it has paid all dues and 
 demands up to a certain date is not an 
 "acquittance or receipt for money" 
 within s. 23 of 24 and 25 Vict. c. 98. Reg. 
 J/.' French, L. R. i C. C. R. 217. A scrip 
 certificate in a railway company is not 
 an "accountable receipt" nor an "ac- 
 quittance or receipt" within the meaning 
 of the 1 1 Geo. 4 and I Will. 4, c. 66. s. 10; 
 Clark V. Newsam, I Ex. 130; cf. West's 
 Case, I Den. C. C. 258. To a bill of par- 
 cels of the following tenor, viz., "Mr. 
 J. L. bought of E. & C. — the above 
 charged to G. C," the purchaser, J. L., 
 added these words: " By order E. & C. ;" 
 it was held that this addition amounted 
 to an acquittance of J. L. and was a forg- 
 ery within the statute of 1804, c. 620, § 
 i; Com, V. Ladd, 15 Mass. 526. 
 
 Receipt and Acquittance. — A "memoran- 
 dum importing that one had paid a sum 
 to another, but not importing any ac- 
 knowledgment from that other of his 
 having received it, is not such a receipt 
 and acquittance as the statute 2 G. 2, c. 
 25, § I, makes it capital to forge and 
 utter. R. V. Harvey, i Russ. & Ry. 227. 
 
 1. Thomas v. De Graffenreid, 2 N. & 
 MC. (S. Car.) 143. "Saying that the 
 plaintiff was 'discharged' is not suffi. 
 cient; it is not equal to the word 'ac- 
 quitted,' which has a definite meaning. 
 Where the word ' acquitted ' is used, it 
 must be understood in the legal sense, 
 namely, by a jury on the trial." Mor- 
 gan V. Hughes, 2 Term Rep. 225, 231. 
 " But in the case now under considera- 
 tion, it is stated that he was ' acquitted 
 by the grand jury's finding no bill.' The 
 manner of acquittal is set down in such 
 
 to be used in its technical sense. And 
 although wheii a technical word is used 
 without any qualification the court will 
 give it its technical meaning; yet, when 
 it is accompanied with such qualification 
 as shows that it was intended to be under- 
 stood in a different sense, 'it vvill be 
 taken with such qualification. And 
 although the declaration may not be 
 drawn in the most technical form, I do 
 not know that the. facts could have been 
 set out with more precision. If it had 
 been ' discharged ' instead of ' acquitted,' 
 it is admitted that it would have been 
 sufficient. And in common parlance I 
 think 'acquitted' is as clearly expressive 
 of the idea intended to be conveyed as 
 'discharged.'" Teague v. Wilks, 3 MC. 
 (S. Car.) 461. 
 
 2. Under a grant of a right of way, 
 acro.ss the plaintifif's lot of land, the 
 grantee has not a right to enter at one 
 place, go partly across, and then come cut 
 at another place on the same side of the 
 lot. Comslock V. Van Deuten, s Pick. 
 (Mass.) 163. 
 
 In the deed conveying a lot of land, 
 the grantor made the following reserva- 
 tion: "And the said A. hereby reserves 
 to himself the right of passing and re- 
 passing with teams in the most con- 
 venient place across the land conveyed." 
 Held, that the term "across" did not 
 necessarily confine the right of way to a 
 transverse one, over the lot. 
 
 The contract declared upon, and proved 
 by the memorandum produced, was that 
 the horses were to run four miles "across 
 a country." That is an expression of 
 which we cannot take judicial notice. 
 The meaning of that expression was a 
 question for the jury, to be decided by 
 them upon the evidence before them. 
 The evidence showed that by this ex- 
 pression the rider is excluded from riding 
 through an open gate. Evans v. Pratt, 
 3 M. & G. 759, 762 
 
 3. Chumatero v. Potts, 2 Montana, 284. 
 
 173 
 
Uinisterial Act. 
 
 ACT OF GOD. 
 
 Excused from Duties, 
 
 ACT OF GOD. See Accident; Contract. 
 
 1. From what Duties a Person is excused by Act of God. — If a man 
 
 be prevented by the "Act of God" from the performance of a 
 duty imposed by common law or by statute, he is excused.^ A 
 common carrier is an insurer of the goods which he carries, but he 
 
 An act in legislation is a statute or law 
 made by a legislative body. People v. 
 Tephaine, 3 Parker's Cr. R. 244. 
 
 Judicial Act. — " A judicial act is an act 
 performed by a court touching the rights 
 of parties or property brought before it 
 by voluntary appearance, or by the prior 
 action of ministerial officers; in short, by 
 ministerial acts." Flournoy v. Jefferson- 
 ville, 17 Ind. 173. 
 
 Ministerial Act. — "A ministerial act 
 may be defined to be one which a person 
 performs in a given state of facts, in a 
 prescribed manner, in obedience to the 
 mandate of legal authority, without re- 
 gard to, or the exercise of, his own judg- 
 ment upon the propriety of the act being 
 •done." Ibid. 
 
 Act done, in Lease. — A proviso in a 
 lease giving power of re-entry if the les- 
 see " shall do or cause to be done any 
 act, matter, or thing contrary to and in 
 breach of any of the covenants," does not 
 apply to a breach of the covenant to re- 
 pair, the omission to repair not being 
 an act done within the meaning of the 
 proviso. Doe v. Stevens, 3 B. & Ad. 
 S99. 
 
 Act of the Congress, — The words act 
 ■of the Congress" are as strong and une- 
 quivocal as I' statute of the Congress." U. 
 S. V. Smith, 2 Mason, 143. 
 
 Act or Intention, in Insurance Policy, — 
 The words "act" and "intention" mean 
 the same as the word "act " alone, for act 
 implies intention. Chapman v. Republic 
 Life Ins. Co., 6 Biss. 238. The condition 
 t)f a policy of insurance was that it should 
 be void in case the insured should "die 
 by his own hand or act, voluntary or oth- 
 erwise;" it was held that this did not cov- 
 er the case of a death purely accidental 
 from an overdose of poison. Penfold v. 
 Universal Life Ins. Co., ^ N. Y. 317. 
 
 Act in his Official Capacity. — A deputy 
 sheriff is entitled, in respect to liabilities 
 incurred by the doing of an act in his of- 
 ficial capacity, to the protection of the 
 short statute of limitations contained in 
 the Code. The taking by a deputy sheriff 
 of property, and the sale of that properly 
 under execution, are "acts in his official 
 capacity," and he is entitled to the protec- 
 tion given by the Code. Cumming v. 
 Brown, 43 N. Y. 514. 
 
 Suffer any Act. — Under a settlement 
 providing a forfeiture when the life ten- 
 
 ant " should do or suffer any act " where- 
 by the dividends should become payable 
 to another person, the court said: " When 
 the words ' shall do or suffer any act ' are 
 used, they are to be understood as meaning 
 to endure or sustain, and to apply to some- 
 thing being done in invitum" Roffey v. 
 Bent, L. R. 3 Eq. Cas. 759. 
 
 In Pursuance of the Act. — A thing is to 
 be considered to be done in pursuance of 
 the act when the person who does it is 
 acting honestly and bona fide, either under 
 the powers which the act gives, or in dis- 
 charge of the duties which it imposes. 
 Smith V. Shaw, 10 B. & C. 284; Thomas 
 V. Stephenson, 2 El. & Bl. 108. 
 
 Public Act. — All acts for regulating the 
 taking of fish are public statutes, and the 
 court must ex officio take notice of them. 
 Burnham v. Webster, 5 Mass. 266. A 
 patent for land granted by a sister State 
 is one of those public acts to which every 
 other State is bound to give full faith and 
 credit, under the Constitution of the 
 United States. Lassly v. Fontaine, 4 
 Hen. & M. 146. If a statute makes it fel- 
 ony to steal the notes of any particular 
 incorporated bank, the statute by which 
 that bank was incorporated thereby be- 
 comes a public statute. U. S. v. Porte, 
 I Cranch C. C. 369. To constitute a stat- 
 ute a public act, it is not necessary that it 
 should be equally applicable to all parts of 
 the State. It is sufficient if it extends to 
 all persons within the territorial limits de- 
 scribed in the statute. Pierce v. Kimball, 
 9 Me. 54. The charter of a village cor- 
 poration is a public law, and need not be 
 recited in pleading, as the court will take 
 judicial notice thereof. Village of 
 Winooski n, Gokey, 49 Vt. 282. 
 
 Passing of the Act.— The time defined 
 by the words "passing of the Bankruptcy 
 act, 1861," is the time when the act of 
 1861 received the royal assent, and not 
 the- time when it came into operation. In 
 re Dalzell, L. R. 2 Ch. Div. 9; Eliot v. 
 Cranston, 10 Rh. I. 88. 
 
 Act in all my Business. — A power of 
 attorney "to act in all my business, in all 
 concerns, as if I was present myself 
 and to stand good in law in all my land 
 and other business," gives no power to 
 sell land. Ashley v. Bird, 14 Am. Dec. 
 313- 
 
 1. Wear Commissioners v. Adamson, 
 I Q. B. D. 548. 
 
 I C. of L.— 12 
 
 173 
 
Definition. 
 
 ACT OF GOD. 
 
 Loss from Natural Cause. 
 
 is not responsible for a loss caused by an "Act of God." ^ It is 
 important, therefore, to know exactly what is meant by the term 
 '^act of God." 
 
 2. Definition. — A loss is said to be caused by an act of God when 
 it results immediately from a natural cause, without the interven- 
 tion of man, and could not have been prevented by the exercise 
 of prudence, diligence, and care, and the use of those appliances 
 which the situation of the party renders it reasonable that he 
 should employ. 
 
 3. The loss must result from a natural cause, such as an extraordinary 
 flood,* or a storm of unusual and extraordinary violence,* or a 
 
 1. Riley v. Home, J Bing. 220; Elliott 
 V. Rossell, 10 Johns. (N. Y.) Rep. i. 
 
 Ordinarily, when a man contracts ab- 
 solutely to do a certain thing, he is not 
 excused by an event which renders the 
 performance impossible. Jemison v. 
 McDaniel, 25 Miss. 83. "Where it is an 
 answer to an alleged breach of contract 
 that the thing done or left undone was so 
 by the' act of God, what is meant is that 
 it was not within the contract. Baily v, 
 De Crespigny, L. R. 4 Q. B. 185. This 
 . . . well shows the modern tendency 
 ... to reduce all the rules on this sub- 
 ject to rules of construction. By the 
 modern understanding of the .law, we are 
 not bound to seek for a general definition 
 of ' the act of God, ' or vis major, but only 
 to ascertain what kind of events were 
 within the contemplation of the parties, 
 including' in the term 'event' an existing 
 but unascertained state of facts. This is 
 yet more apparent if one attempts to 
 frame any definition of the term ' act of 
 God.' It does not include every inevi- 
 table accident; contrary winds, for exam- 
 ple, are not within the meaning of the 
 term in a charter-party. Nor is the rea- 
 son far to seek: the risk of contrary 
 winds, though inevitable, is one of the 
 ordinary risks which the parties must be 
 understood to have before them and to 
 take upon them in making such a con- 
 tract." Pollock on Contracts, p. 366. If 
 this notion of the " act of God " is borne 
 in mind, it may serve to explain some 
 cases which would otherwise appear 
 anomalous. 
 
 Some contracts always contain express 
 or implied conditions that if performance 
 be rendered impossible by certain speci- 
 fied events the contract shall be dis- 
 charged. Thus contracts whose per- 
 formance depends upon the continued 
 existence of a specified thing are dis- 
 charged by the destruction of the thing 
 from no default of either party. Taylor 
 V. Caldwell, 3 B. & S. 826; Walker v. 
 Tucker, 70 111. 527; Dewey v. School 
 Dist. 19 Am. L. Reg. N. S. 550, and note; 
 Dexter v. Norton, 47 N. Y. 62. In like 
 
 manner a contract whose performance 
 depends upon the personal capacity of 
 the parties is discharged by their death 
 or incapacitating illness. Hall v. Wright, 
 E. B. & E. (96 E. C. L. R.) 793; Robin- 
 son V. Davison, L. R. 6 Ex. 269; Farrow 
 V. Wilson, L. R. 4 C. P. 744; Scully v. 
 Kirkpatrick, 79 Pa. St. 324; Allen v. 
 Baker, 86 N. Car. 91; Siler v. Gray, 86 
 N. Car. 566. 
 
 2. International, etc., R. Co. v. Hal- 
 loren, 3 Am. &Eng. R. R. Cas. 343; s. c, 
 53 Tex. 46; Baltimore, etc., R. Co. v. Sul- 
 phur Springs, etc., Dist., 2 Am. & Eng. 
 R. R. Cas. 166; s. c, 96 Pa. St. 65; 
 Gates V. Southern Minn. R. Co., 2 Am. 
 &Eng. R.R. Cas. 237; s. c, 28 Minn. 110; 
 Sheldon v. Sherman, 42 N. Y. 484; Reed v. 
 Spaulding, 30 N. Y. 630; Lipford v. Rail- 
 road Co., 7 Rich. (S. Car.) 409; Wallace 
 V. Clayton, 42 Ga.443; Loveringz/. Buck 
 Mt. Coal Co., 54 Pa. St. 291; Bell v. 
 McClintock, 9 Watts (Pa.), 119; Lehigh 
 Br. Co. V. Lehigh, etc., Co., 4 Rawle 
 (Pa.), 9; Bietry v. New Orleans, 22 La. 
 Ann. 149; 111. Cent. R. Co. v. Bethel, 11 
 HI. App. 17; China v. Southwick, 12 Me. 
 238; Morris Canal Co. v. Ryerson, 27 
 N. J. L. 457; Shrewsbury v. Smith, 12 
 Cush. (Mass.) 177; Lapham v. Curtis, 5 Vt. 
 371; Higgins v. Chesapeake, etc., Co., 3 
 Harr. (Del.) 411; Tenny z;. Miner's Ditch 
 Co., 7 Cal. 335; Hoffman v. Tuolumne 
 W. Co., 10 Cal. 413; Wolf W.St. Louis, 
 etc., Co., 10 Cal. 541; Richardson v. 
 Kier, 34 Cal. 63; Campbell v. Bear River 
 Co., 35 Cal. 6,79; Chidester v. Consoli- 
 dated D. Co., 59 Cal. 197; NichoUs v. 
 Marsland, L. R. 2 Ex. i; s. c, L. R. 10 
 Ex. 255. It should be carefully observed 
 that floods may be none the less extraor- 
 dinary in their character because sev- 
 eral happen in rapid succession of equal 
 violence. This is merely evidence for 
 ,the jury that the particular flood Is not 
 extraordinary, but Is of a kind more or 
 less likely to occur in the region. Pitts- 
 burgh, etc., R. Co. V. Gilliland, 56 Pa. 
 St. 445. 
 
 i3, A storm ot unusual and extraordinary 
 violence. Philadelphia, etc., R, Co. v. 
 
 174 
 
Loss from Natural Cause. 
 
 ACT OF GOD. 
 
 Immediate Canse. 
 
 severe frost,* or drought,* a sudden gust o/ wind or tempest,* 
 lightning, earthquake, sudden death, or illness.* 
 
 4. The natural cause must be the immediate' and not the remote 
 
 Anderson, 6 Am. & Eng. R. R. Cas. 407; 
 s. c, 94 Pa. St. 351; Liveiey v. Philadel- 
 phia, 64 Pa. St. 106. A storm greater 
 and more destructive than had been ex- 
 perienced within forty years. Nashville, 
 etc., R. Co. V. Davis, 6 Heisk. (Tenn.) 
 261; Nashville, etc., R. Co. v. King, 6 
 Heisk. (Tenn.) 269 ; Briddon v. Great 
 Northern R. Co., 28 L. J. Ex. 51; Bal- 
 lentine v. North Mo. R. Co., 40 Mo. 
 491; Fenwick v. Schmaltz, L. R. 3 C. P. 
 
 313. 
 
 1. The freezing of a canal. Bowman 
 V. Teal, 23 Wend. (N. Y.) 306; Parsons 
 V. Hardy, 14 Wend. (N. Y.) 215; s. c, 
 28 Am. Dec. 521; Allen v. Mercantile M. 
 Ins. Co., 44 N. Y. 437; 3. c, 4 Am. Rep. 
 700; Wing V. N. Y., etc., R. Co., i Hilt. 
 (N. Y.) 235: contra, O'Conner v. Foster, 
 10 Watts. (Pa.) 418; Cooper v. Young, 
 22 Ga. 272; McGrau v. Baltimore, etc., 
 R. Co., 18 W. Va. 361; s. c, 9 Am. & 
 Eng. R. R. Cas. l88; Engster v: West, 
 35 La. Ann. 119; s. c, 48 Am. Rep. 232; 
 Field on Dam., § 386. 
 
 Or river. Harris v. Rand, 4 N. H. 259; 
 s. c, 17 Am. Dec. 421; Lowe v. Moss, 12 
 111.477; West W.Berlin, 3 Iowa,532; Worth 
 V. Edmunds, 52 Barb. (N. Y.) 40; Vail v. 
 Pacific R. Co., 63 Mo. 230: contra, Eng- 
 ster V. West, 35 La. Ann. iig; s. c, 48 
 Am. Rep. 232. The freezing of goods in 
 transit where there is no negligence on 
 the part of the carrier. Vail v. Pacific 
 R.Co., 63 Mo. 230; McGrau v. Baltimore, 
 etc., R. Co., 9 Am. & Eng. R. R. Cas. 
 188; s. c, 18 W. Va. 361; Wolf V. Am. 
 Ex. Co., 43 Mo. 422; Wing!/. N. Y., etc., 
 R. Co., I Hilt. (N. Y.) 235: Swetland w. 
 Boston, etc., R. Co., 102 Mass. 276. 
 
 2. Ward v. Vance, 93 Pa. St. 499. 
 
 3. The Lady Pike, 2 Biss. (U. S.) 141; 
 Gillott V. Ellis, II 111. 579; Nugent v. 
 Smith, L. R. I C. P. 423; s. c, 14 Alb. 
 L. J. 164. Where the plaintiff was in- 
 jured by the fall of a liberty pole caused 
 by a gale of wind, it was held that no one 
 was responsible to him. Allegheny v. 
 Zimmerman, 95 Pa. St. 287; s. c. , 40 
 Am. Rep. 649. It has also been held 
 that a failure of the wind causing a ves- 
 sel to run aground and sink was an "act 
 of God." Colt V. McMeehen, 6 Johns. 
 (N. Y.) 159; s. c, 5 Am. Dec. 200. 
 
 4. Story Bail. § 25; Friend v. Wood, 
 6 Grattan (Va.), 195; McCall v. Brock, 5 
 Strob. (S. Car.) iig. Where the princi- 
 pal in a recognizance to appear at court 
 and answer to an indictment was thrown 
 
 from a horse and disabled, it was held 
 that his illness so caused was an act of 
 God, which excused him from appearing. 
 People V. Tubbs, 37 N. V. 586. As to 
 sickness or death preventing performance 
 of contract, see ante. Death by drown- 
 ing. Trew V. Railroad Pass. Ins. Co., 6 
 Hurl. & N. 839. 
 
 6. Coosa River S. B. Co. v. Barclay, 
 30 Ala. 120; Railroad Co. v. Reeves, lo 
 Wall. (U. S.) 176; Michaels v. N. Y., 
 etc., R. Co., 30 N. Y. 564; Sprowl v. Kel- 
 lar, 4 Stew. & P. (Ala.)' 382; Steele v. 
 McTyer, 31 Ala. 667; s. c, 70 Am. Dec. 
 516. 
 
 In Smith v. Sheppard (Abbot on Ship,' 
 pt. 3, ch. 4, § i), a vessel was lost by 
 striking a floating mast attached to a 
 vessel which had been sunk by getting 
 on a bank that had suddenly and unex 
 pectedly been made dangerous by an ex- 
 traordinary flood. Coming in contact 
 with the mast attached to the sunken 
 ship, the defendant's vessel was forced 
 by it upon the bank, altered suddenly by 
 the flood, and was wrecked. The flood 
 which changed the bank was the ultimate 
 cause of the misfortune, but it was 
 held to be too remote. The immediate 
 cause of the loss was the coming in col- 
 lision with a floating mast which some- 
 one had attache,d to the sunken vessel. 
 To the same effect see McArthur v. 
 Sears, 2i Wend. .(N. Y.) igo; Merritt v. 
 Earle, 31 Barb. 38; s. t., 29 N. Y. 115; 
 Trent & Mersey Nav. Co. v. Wood, 
 4 Dougl. 290; Hays v. Kennedy, 41 Pa. 
 St. 378; McHenry v. Phila., etc., R. Co., 
 4 Harr. (Del.) 448; Chicago R. Co. v. 
 Shea, 66 111. 471. 
 
 Running on a sand-bar recently 
 formed. Friend w. Woods, 6 Gratt, 
 (Va.) 189. 
 
 On the other hand, act of God is, ac- 
 cording to some authorities, an occur- 
 rence which is beyond the bounds of hu- 
 man ability to prevent, and is therefore 
 to be considered as a phrase tantamount 
 to "inevitable accident." Jones on 
 Bailments, 104-5; Story on Bail. 489. 
 Thus the striking of a vessel upon a 
 rock unknown to the master — Williams v. 
 Grant, iConn. 437; s. c, 7 Am. Dec. 255 
 — or the running upon an unknown snag 
 in a river, while following the usual 
 course of navigation, have both been 
 held to excuse the carrier from responsi- 
 bility. Smyrl v. Niolon, 2 Bailey (S, 
 Car.), 421; s. c, 23 Am. Dec. 146; John- 
 
 175 
 
LosB from Natural Cause. 
 
 ACT OF GOD. 
 
 Kegligenae, 
 
 cause ; and it must be free from the intervention of any human 
 agency.^ 
 
 6. Negligence. — It follows that if a man's negligence has in any 
 way contributed to the injury which has been brought about, he 
 will not be excused.* But if the negligence is only the remote 
 
 Son V. Friar, 4 Yerg. (Tenn.) 48; s. c, 26 
 Am. Dec. 215; Faulkner ii. Wright, i 
 Rice (S. Car.), 108; Gordon v. Buclianan, 
 5 Yerg. (Tenn.) 7i;Turney v. Wilson, 
 7 Id. 340; Collier v. Valentine, 11 Mo. 
 299; s. c, 49 Am. Dec. 81; Fish v. Chap- 
 man. 2 Ga. 349; Neal ». Saunderson, 
 2 Sm. & Mar. (Miss.) 572; s. c, 41 Am. 
 Dec. 609; Walpole v. Bridges, 5 Blackf. 
 (Ind.) 222. 
 
 It must be borne in mind that charters 
 often contain clauses exempting the car- 
 rier from responsibility for losses caused 
 by the " perils of the sea," or " the perils 
 of navigation." The phrases are not 
 synonymous with act of God, but have a 
 broader meaning and embrace a larger 
 variety of causes. Ferguson v. Bic"*, 
 12 Md. 9; Christenson v. Am. Ex. Co., 15 
 Minn. 270; Bouvier's Law Diet. ; Brown's 
 Law Diet. 2d Ed. ;4I Am. Dec. 281, note; 
 Story on Bailments, § 512. 
 
 See Reg. v. Bennett, Bell C. C. I, where 
 Ijreworks kept by the prisoner either ac- 
 /cidentally or through the negligende of 
 his servants exploded, and, setting fire to 
 a neighboring house, caused a person's 
 death. Held, that the illegal act of the 
 prisoner in keeping the fireworks was too 
 remotely connected with the death to sup- 
 port an indictment for manslaughter. 
 
 1. Steele v. McTyer, 31 Ala. 667; s. c, 
 70 Am. Dec. 516; Transportation Co. v. 
 Tiers, 4 Zab. (N. J.) 697; s. u., 64 Am. 
 Dec. 394; Dunson v. N. Y., etc., R. Co., 3 
 Lans. (N. Y.)265; Michaels v. N. Y., etc., 
 R. Co., 30 N. Y. 564; Reed v. Spaulding, 
 30 N. Y. 630; McArthur v. Sears, 21 
 Wend. (N. Y.) 190; Campbell v. Moore, 
 Harp. (S. C.) 468; Levezey v. Phila., 64 
 Pa. St. 106; Phila., etc., R. Co. v. Ander- 
 son, 6 Am. & Eng. R. R. Cas. 407; s. c, 
 94 Pa. St. 351; Polockw. Pioche, 35 Cal. 
 416. Contra : Railroad Co. v. Reeves, 10 
 Wall. (U. S.) 176; Morrison v. Davis, 20 
 Pa. St. 171; Denny If. N. Y., etc., R. 
 Co., II Gray (Mass.), 481. 
 
 A loss arising from an accidental fire 
 is not caused by an act of God unless 
 the fire was started by lightning or some 
 other superhuman agency. Forward v. 
 Pittard, I Term R. 27; Miller v. Steam 
 Nav. Co., 10 N. Y. 431. 
 
 A loss caused by the great fire in Chi- 
 cago did not result from the act of God. 
 Chicago, etc., R. Co. v. Sawyer, 69 111. 
 
 285; s. c, 18 Am. Rep. 613; Merchants' 
 Des. Co. V. Smith, 76 111. 542; Thorough- 
 good V. Marsh, i Cowen (N. Y.). 105; 
 Hollister v. Nowlen, 19 Wend. (N. Y.) 
 234; Rockingham, etc., Ins. Co. v. Bos- 
 cher, 39 Me. 253; Parker v. Flagg, 26 
 Me. 291; Hale v. N. J., etc., Co., 15 
 Conn. 539; Cox v. Peterson, 30 Ala. 
 608; Hunt V. Morris, 6 Mart. (La.) 676; 
 Gilmore v. Carman, i Smed. & M. (Miss.) 
 279'; Chevallier v. Straham, 2 Texas, 
 115; Singleton v. Hilliard, I Strob. (S. 
 Car.) 203; Patton v. McGrath, Dudley 
 (S. Car.), 159; Graff v. Bloomer, 9 Pa. 
 St. 114; Garrison v. Memphis Ins. Co., 
 19 How. (U. S.) 315; Lyon v. Meils, 6 
 How. (U. S.) 419; Hall V. Railroad Cos., 
 13 Wall. (U. S.) 372; Grille v. General S. 
 Co., L. R. I C. P. 600; Morewood v. Pol- 
 lock, I El. & B. 743; Hvde v. Trent, etc., 
 Co., 5 Term R. 389. 
 
 But where a fire was driven into a 
 town from burning woods by a tornado 
 and destroyed a lot of freight cars, the 
 loss did result from an act of God. P. 
 R. Co. V. Fries, 87 Pa. St. 234. Nor 
 is the explosion of a steam boiler an act 
 of God. McCall v. Brock, 5 Strob. (S. 
 Car.) 119; Buckley v. Naumkeag, etc., 
 Co., 24 How. (U. S.)386; Caldwell v. N. 
 J. S. Co., 56 Barb. 425; s. c, 47 N. Y. 2*2; 
 The Edwin, i Sprague (U. $.), 477; Hill 
 V. Sturgeon, 28 Mo. 323. 
 
 2. Thus, where the master of a vessel, 
 without reasonable necessity, deviated 
 from his course, it was held to be such 
 negligence as to render the shipowners 
 liable for a loss arising from the "dan- 
 gers of the sea." Crosby v. Fitch, 12 
 Conn. 410; Pruitt v. Railroad Co., 62 
 Mo. 527; Bowman v. Teall, 23 Wend. 
 (N. Y.) 306; Swetland v. B. & A. R., 
 102 Mass. 276; Wing v. N. Y. & E. R., 
 I Hilt. (N. Y.) 235; McPadden T,. Rail- 
 road Co., 44 N. Y. 478; Heazle v. Rail- 
 road Co., 76 111. 501; Railroad Co. v. 
 Reeves, 10 Wall. (U. S.) 176; Richards 
 V. Gilbert, 5 Day (Conn.), 415; Sherman 
 V. Wells, 28 Barb. (N.Y.) 403; Fergusson 
 V. Brent, 12 Md. 9; Sprowl v. Kellar, 4 
 Stew. & P (Ala.) 382; Hill v. Sturgeon, 
 28 Mo. 323. 
 
 What such negligence must amount to 
 in order to create liability differs in every 
 case. It is. -however, clear that if it be 
 in direct casual connection with the in- 
 
 176 
 
Negligence. 
 
 ACT OF GOD. 
 
 EzampleSr 
 
 cause of the accident, or if the act alleged to amount to negligence 
 only consists of a failure to provide full and efficient safeguards 
 against violent and extraordinary winds, storms, rains, etc., this will 
 not be held to constitute grounds of liability.^ The carrier is not 
 bound to show that it was absolutely impossible, undei any circum- 
 stances, to prevent the loss ; it is sufficient if he proves that by no 
 reasonable precaution under the circumstances could it have been 
 prevented.* 
 
 jury, and a violation of such reasonable 
 care as a cautious and prudent man would 
 take to protect his property against loss 
 by ordinary storm, wind, rain, etc., then 
 the person who is guilty of such negli- 
 gence will be liable for the harm done. 
 Converse v. Brainerd, 27 Conn. 607; 
 Amentrout v. Railroad Co., i Mo. App. 
 158; Backhouse v. Sneed, i Murphy (N. 
 C), 173; Bailiffs of Romney Marsh v. 
 Trinity House, L. R. 5 Exch. 208; Wing 
 V. N. Y. & E. R., I Hilton (N. Y.), 235; 
 N. J. Steamboat Co. v. Tiers, 4 Zab. (N. 
 J.) 697; Seigelw. Eisen, 41 Cal. log; Vail 
 V. Railroad Co., 63 Mo. 230; Condict v. 
 Railroad Co., 54 N. Y. 500; Donny v. 
 Railroad Co., 13 Gray (Mass.), 481; Penn. 
 R. Co. V. Mitchell, 4 Weekly Notes of 
 Cases (Phila.), 3; Nashville, etc., R. Co. 
 V. David, 6 Heisk. (Tenn.) 261; Wolf v. 
 Am. Ex. Co., 43 Mo. 422; Klauber i/. 
 Am. Ex. Co., 21 Wis. 21. 
 
 Where goods on board a vessel were 
 injured by the bursting of a pipe which 
 had frozen, it was held that although a 
 hard frost may be considered an act of 
 God, yet the master was bound to guard 
 against the known effects of frost, on 
 water-pipes, and was therefore negligent. 
 Siordet v. Hall, 4 Bing. 607. 
 
 A man is negligent if he does not take 
 precautions against such rises or high 
 water in a stream as are usual and ordi- 
 nary, and reasonably anticipated at par- 
 ticular periods of the year. Dorman v. 
 Ames, 12 Minn. 451. 
 
 1. If the act of God was of such an 
 overwhelming and destructive character 
 as by its own force, and independently 
 of the particular negligence alleged or 
 shown, to produce the injury, there would 
 be no liability though there was some 
 negligence on the part of the carrier. To 
 create liability, it must have required the 
 combined effect of the act of God and 
 the concurring negligence of the party 
 to produce the injury. Bait., etc., R. 
 Co. J/. Sulphur Springs, etc., Dist., 2 Am. 
 & Eng. R. R. Cas. 166; s. c, g6 Pa. St.65. 
 
 Though in default, the carrier may 
 show that the Io.-js would have happened 
 without such default. Collier v. Valen- 
 tine, II Mo. 299; s. c, 49 Am. Dec. 81. 
 
 Where a canal boat was delayed on ac- 
 count of the lameness of a horse, and an. 
 extraordinary flood caught the boat and 
 damaged the cargo, it was held that the 
 use of the lame horse could not be consid- 
 ered as the proximate cause of the loss, 
 and the carrier was excused. Morrison; 
 V. Davis, 20 Pa. St. 171; 57 Am. Dec. 
 695. 
 
 2. In the recent case of Nugent v. 
 Smith, L. R. I C. P. D. 19, 423, the de- 
 fendant, a common carrier by sea, re- 
 ceived from the plaintiff a mare to be 
 carried from London to Aberdeen. In. 
 the course of the voyage, the ship en- 
 countered rough weather, and the mare 
 received such injuries that she died. The 
 jury found that the injuries were caused 
 partly by more than ordinary bad 
 weatlier, and partly by the violent strug- 
 gling of the mare herself, without any 
 negligence on the part of the defendant's 
 servants. The Court of Common Pleas 
 held that the defendant was liable, and 
 said that in order to constitute an act of 
 God "the damage or loss in question 
 must have been caused directly and ex- 
 clusively by such a direct and violent 
 and sudden and irresistible act of nature 
 as the defendant could not by any amount 
 of ability foresee would happen; or, if he 
 could foresee that it would happen, could 
 not by any amount of care and skill re- 
 sist so as to prevent its effect." This 
 ruling was reversed by the Court of Ap- 
 peals. " All that can be required of the 
 carrier, " said Cockburn, C. J., "is that 
 he shall do all that is reasonably and 
 practically possible to insure the safety 
 of the goods. If he uses all the known 
 means to which prudent and experienced 
 carriers usually have recourse, he do?s 
 all that can reasonably be required of 
 him; and if, under such circumstances, 
 he is overpowered by storm or other nat- 
 ural agency, he is within the rule which 
 gives immunity from the effects of such 
 vis major as the act of God. I do not 
 think that, because some one may have 
 discovered some more efficient method of 
 securing the goods which has not become 
 generally known, or, because it cannot 
 be proved, that if the skill and ingenuity ' 
 
 177 
 
ACT OF INSOLVENCY— ACTING— ACTIONS. 
 
 ACT OF INSOLVENCY.— As regards banks, it is an act which 
 shows the bank to be insolvent, such as non-payment of its cir- 
 culating notes, bills of exchange, or certificates of deposit ; failure 
 to make good the impairment of capital, or to keep good its re- 
 serve : in fact, any act which shows that the bank is unable to 
 meet its liabilities as they mature, or to perform those duties 
 which the law imposes for the purpose of sustaining its credit.^ 
 
 ACTING. — When the word is used in the expression " acting as 
 attorney," it means ;io more than attending, and does not satisfy 
 a statute which requires the attorney to state that he subscribes 
 as such attorney. ** 
 
 ACTIONS. (See also ABATEMENT; EVIDENCE; JUDGMENT; 
 Limitation of Actions ; Negligence ; Practice ; all recog- 
 nized forms of action under respective heads — ACCOUNT RENDER ; 
 Assumpsit; Covenant; Debt; Detinue; Replevin; Tres- 
 pass ; Trespass on the Case ; Trover ; etc., etc.) 
 
 1. Definition. 
 
 2. When Maintainable. 
 
 (a) Motive. 
 
 (b) Damages. 
 
 {c) Proof of Same. 
 
 (d) Legality. 
 
 (e) Wrongdoer. 
 If) Class. 
 
 Right Must be Complete. 
 Consent. 
 
 Nudum Pactum. 
 Demand. 
 
 8. Commencement. 
 
 9. Consolidation. 
 
 {a) Union of Legal and Equi- 
 table Demands. 
 
 10. Joinder. 
 
 11. Splitting. 
 
 {a) Same Security. 
 
 12. Cumulation. 
 
 13. Statutory Actions. 
 
 14. Local and Transitory. 
 
 15. Discontinuance. 
 
 (a) Termination. 
 
 Appearance. 
 
 1. Definition. — An action is a legal prosecution in an appropri- 
 ate court by a party complainant against a party defendant to 
 
 See also, to the same general effect, 
 Michigan Cent. R. Co. v. Coleman, 28 
 Mich. 440; Brehm v. Gt. Western R. Co., 
 34 Barb. (N. V.) 256; Tyner v. Railroad, 
 III Mass. 546;. Mobile, etc., R. Co. v. 
 Ashcroft, 48 Ala. 15; Stokes w. Railroad, 
 I F. & F. 291; Wyborn v. North Kent 
 R. Co., I F. & F. 162; Murray v. Rail- 
 road, 27 L. J. (N. S.) 762. See gener 
 ally, upon the subject, Wharton on Con- 
 tracts, 8 308; 2 Pars, on Conts. § 13S, and 
 notes; Notes to Coggsw. Bernard, I Sm. 
 L. C. (8th Am. Ed.) 422-441; Pollock on 
 Conts. (Wald's Ed. 1885), p; 366 seq.; 
 Story on Bailments; i Thompson on 
 Negligence, 86 seq.; 14 Am. Law Rev. i; 
 Sweet's Law Diet. ; Bouvier's Law Diet. 
 
 1. In re Manuf. Nat. Bank, I Cent. 
 Law Jour. ig. 
 
 2. Everhard v. Poppleton, 5 Q. B. 179. 
 Where a testator left certain property in 
 trust, and declared that if either of the 
 trustees should decline to act, the survivor 
 of the trustees so acting should app«int 
 
 78 
 
 of engineers or others were directed to 
 the subject something more efficient 
 might not be produced, that the carrier 
 can be made liable." 
 
 Where it was sought to hold a railroad 
 company liable for an accident, which 
 occurred by reason of the breaking of a 
 rail occasioned by extreme and intense 
 cold, it was held that this was properly to 
 be esteemed theact of God; and, although 
 it was possible to conceive of rails so 
 manufactured as to withstand any degree 
 of cold, yet that the company could not 
 be expected to supply such rails, and could 
 not be held liable for a failure to do so. 
 McFadden v. Railroad Co., 44 N.Y. 478. 
 
 And so where an accident occurred 
 through an embankment being swept 
 away by an unexampled and extraor- 
 dinary flood, it was held that the railroad 
 company were not bound to provide an 
 embankment sufficient to withstand such 
 a flood. Withers y. North Kent R. Co., 
 27 L. J. Ex. 417. 
 
 1 
 
definition. 
 
 ACTIONS. 
 
 When Maintainable. 
 
 obtain the judgment of that court in relation to some rights 
 claimed to be secured or some remedy claimed to be given by 
 law to the party complaining.^ 
 
 Action includes suits in equity as well as proceedings at law.'-* 
 
 2. When Maintainable. — [a) A malicious motive in asserting a 
 legal right to do a particular thing will not give a right of action.^ 
 
 {U) Damages.— ,Ks a general rule an action will not lie for a 
 tort unless there has been a wrongful act and actual or legal 
 damage, but, where the injury is the result of an inevitable acci- 
 dent or a lawful act done in a lawful manner without negligence 
 or in necessary self-defense, there being no legal injury, there is 
 no tort to sustain an action.* 
 
 (c) Proof of Same. — An actiort will lie for the vindication of a 
 right, without proof of actual damages. ** 
 
 Obstructions or nuisances in a street 
 or highway causing special damiages; a 
 nuisance on one's own land injurious to 
 the personal health or comfort of an- 
 other; diversion of surface water from 
 the land of another by excavation in 
 one's own or the backing of water by 
 dams, etc., upon the land of another are 
 consequential injuries which will support 
 an action though resulting from the use 
 of one's own or another's property. 
 Wabash, etc., Canal Co. v. Spears, i5 
 Ind. 441. 
 
 No action will lie for consequential 
 damages resulting from the exercise of a 
 legal right under legislative authority un- 
 less on the ground of negligence in the 
 manner of its exercise. Morris, etc., R. 
 R. Co. V. Newark, 10 N. J. Eq. 352. 
 
 An avoidable injury to person or repu- 
 tation, whether in a corporate or private 
 character, entitles the injured party to 
 redress. Detroit Daily Post Co. v. Mc- 
 Arthur, 16 Mich. 477; Toff v. West Shore 
 & Ontario Terminal Co., 46 N. J. L. 34. 
 
 There must be an injury to the plain- 
 tiff or a benefit to the wrongdoer to ren- 
 der even a wrongful act actionable. 
 Morgan v. Bliss, 2 Mass. iii; McEndre 
 V. Piles, 6 Litt. (Ky.) loi; Nichols v. 
 Valentine, 36 Me. 322. 
 
 S. The ei-ection of a building so that 
 water from the roof falls upon plaintiff's 
 ground. Ely v. Corson, 13 Haz. Pa. 
 Reg. 335. 
 
 " I may daily walk through my neigh- 
 bor's inclosuires without any appreciable 
 injury, but if such a plea would protect 
 me in a persistence therein, my trespasses 
 would in time ripen into a right. To 
 prevent this the law redresses by action ' 
 where the injury is confessedly inappre- 
 ciable." Delaware & Hudson Canal Co. 
 V. Torrey, 33 Pa. St. 143. Also Thomas 
 V. Brackney, 17 Barb. (N. Y.) 654, Car- 
 79 
 
 .other trustees, it was held that when both 
 the trustees wholly declined to act in the 
 trust, they had never been trustees so 
 acting as to entitle them to appoint other 
 trustees. Sharp v. Sharp, 2 B. & Aid. 
 405. 
 
 1. Wait's Actions and Defenses, 10. 
 
 3. Central Pac. R. R. Co. v. Dyer, i 
 Sawyer, 641. 
 
 3. Mahan v. Brown, 13 Wend. 261; 
 Auburn, etc., Co. o. Douglass, g N. Y. 
 444; Chatfield v. Wilson, 28 Vt. 49; 
 Occum Co. V. Sprague Manufacturing 
 Co., 34 Conn. 530; Jenkins v. Fowler, 
 24 Pa. St. 308 ; Glendon Iron Co. v. 
 Uhler, 75 Pa. St. 467; Smith v. Johnson, 
 76 Pa. St. igi ; Fabin v. Richard, 8 Wis. 
 255; Stevenson v. Newnham, 13 C. B. 
 285 ; Smith v. Bowler, 2 Disney (Ohio), 
 
 153- 
 
 The plaintiff's ulterior motives and 
 purposes of bringing suit cannot be in- 
 quired into. Ramsey v. Gould, 57 Barb. 
 <N. Y.) 398. 
 
 ^ee as to malice forming a considera- 
 tion. Lumley v. Gye, 2 Ell. & Bla. 216; 
 •Cothel V. Jones, 11 C. B. 713. 
 
 4. Harvey v. Dunlap, Hill & Denio, 
 193; Bennett v. Ford, 47 Ind. 264; 
 Brown w. Collins, 53 N. H. 442; Holmes 
 -v. Mather, L. R. 10 Ex. 261; Scott v. 
 Shepherd, 3 Wes. 403. 
 
 A man is not liable to an action for the 
 consequences of his doing a lawful act in 
 n. proper manner; nor for the conse- 
 quences of enjoying his own property in 
 the way property is usually enjoyed, un- 
 less an injury results to another from the 
 want of proper care or skill on his own 
 part, or unless he goes beyond the legiti- 
 mate use of his own property. Radcliffe 
 V. Mayor, etc., of Brooklyn, 4 N.'Y. 195: 
 Howe V. Young, 16 Ind. 312; Carhartw. 
 Auburn Gas Light Co., 22 Barb. (N. Y.) 
 297; Thomasson v. Agnew, 24 Miss. 93. 
 
Wlien Maintainable. 
 
 ACTIONS. 
 
 Bight Must be Complete.. 
 
 {d) Legality. — An action cannot be maintained on any ground 
 or cause which the law declares illegal,^ nor can a cause of action 
 arise from an undertaking prohibited by statute.'-* (See CON- 
 TRACT.) 
 
 {e) Wrongdoer. — The prevention of the doing an unauthorized 
 and unlawful act does not give a good cause of action to an in- 
 cipient wrongdoer who is interfered with.^ 
 
 (_/^) Class. — Damages sustained alike by all individuals of a 
 class give no foundation for an action by any individual of the 
 class.* 
 
 3. Eight Must be Complete. — The right of action must be com- 
 plete before action brought and the subsequent occurrence of a 
 material fact will not avail in maintaining the action.^ 
 
 hart V. Auburn Gas Light Co., 22 Barb. 
 (N. Y.) 297; Honsee v. Hammond, 39 
 Barb.v(N. Y.) 89; O'Riley y. McChea- 
 ney, 3 Lans. (N. Y.) 278 ; Graver v. 
 Scholl, 42 Pa. St. 5S; Dudley v. Tilton, 
 14 La. Ann. 283. 
 
 For intrusion on a right of way. Wil- 
 liams V. Esling, 4 Pa. St. 486; Schnable 
 w. Koehler, 28 Pa. St. 181. 
 
 1. Davidson v. Lanier, 4 Wall. 447; 
 Rolfe V. Delmar, 7 Rob. La. 80; Stewart- 
 son V. Lothrop, 12 Gray (Mass.), 52; 
 Howard v. Harris, 8 Allen (Mass.), 297; 
 Pearce v. Brooks, L. R., i Exch. 213; 
 Smith V. White, L. R. I Eq. Cas. 626; 
 Gunler v. Lecky, 30 Ala. 591. 
 
 Every contract growing out of or con- 
 nected with an illegal or immoral act is 
 absolutely void and will not be enforced 
 in law and equity. Courts are influenced 
 by no tenderness for parties, but exclu- 
 sively by reasons of public policy. 
 Deans v. M'Landon, 30 Miss. 343. 
 
 No action lies for the price of fraud. 
 Boatner v. Yarborough. 12 La. Ann. 249. 
 
 2. Peck V. Burr, 10 N. Y. 294; Hatha- 
 way V. Moran, 44 Me. 67; Lord w. Chad- 
 bourne, 42 Me. 429. A contract made 
 in violation of a statute is void and is not 
 rendered valid by the repeal of the stat- 
 ute. Robinson v. Barrows, 48 Me. 186. 
 
 So also a right of action created by a 
 statute and which has been perfected is 
 not impaired nor is the suit upon it af- 
 fected by the repeal of the statute. Steami 
 ship Co. V. Joliffe, 2 Wall. (U. S.) 450; 
 Peters v. Goulden, 27 Mich. 171. Held 
 in Wisconsin to apply only to repeal of 
 statute giving new forms of remedy for 
 old rights; providing new modes of pro- 
 secution for offences existing by law 
 outside the statute repealed. 
 
 3. Where a railroad company brought 
 a special action on the case against the 
 defendant for preventing their construct- 
 ing a branch track across a public high- 
 
 way where they were not legally author 
 ized so to construct it, ft was held that, 
 the action was not maintainable; that if 
 the defendant wrongfully entered upon 
 the land of another to prevent the con- 
 struction of such branch railroad, he 
 would be liable to the owner in an action 
 of trespass therefor, but not to the rail- 
 road for rae;-ely preventing their violat- 
 ing the law. Bangor, etc. , R. R. Co. v. 
 Smith, 49 Me. 9. 
 
 No immunity for a wrongful act done 
 to the injury of another's right can be 
 claimed on the ground of public interest 
 by any person, corporate or individual. 
 Henderson v. Railroad Co., 17 Texas, 
 560. 
 
 4. Corner v. West Side Elevated, etc., 
 R. R., 6 Blatchf. (C. C.) 487. 
 
 The only remedy for a neglect by a 
 corporation from which an individual 
 suffers in common with the rest of the 
 public is by indictment. Weightman v. 
 Washington, i Black. 39. 
 
 No private action can be maintained, 
 for public wrongs. Ayers v. Sawrengp, 
 63 Barb. (N. Y.) 454. 
 
 5. McCuUough V. Colby, 4 Bosw. (N. 
 Y.) 603, 5 Bosw. (N. Y.)477; Wattson v. 
 Ghibou, 17 Abb. (N. Y.) 184; Buchanan 
 ■u. Comstock, 57 Barb. (N. Y.) 582; Hare 
 V. VanDeusen, 32 Barb. (N. Y.) 92; 
 Oathout V. Ballard, 4 Barb. (N. Y.) 33; 
 Smith V. Aylesworth, 40 Barb. (N. Y.) 
 104; Bostwick V. Mench, 4 Daly (N. Y.), 
 68; Church v. Frost, 3 Thomp. Cook. 318; 
 Moore v. Maple, 25 111. 341 ; Wadley v. 
 Jones, 55 Ga. 329; Muller v. Earle, 5 
 Jones & Sp. 388; Castrigue v. Bernabo, 
 6 Q. B. 498; Wing v. Accumulative As- 
 surance Co., 3 C. B. (N. S.) 151. 
 
 To entitle a plaintiff to bring suit for 
 an interference with a vested right, he 
 must have complied with the laws relat- 
 ing thereto. Norris v. Lapsley, 5 CaL 
 47- 
 
 180 
 
Consent — KTudum Factum. 
 
 ACTIONS. 
 
 Demand — When Bequired. 
 
 4. Consent. — Consent to an act generally bars all right of action 
 for injuries arising therefrom.^ 
 
 5. Nudum Pactum. — A nudum pactum creates no legal right, and 
 its breach creates no right to legal redress.* 
 
 6. Demand — When Required. — Demand must be alleged to sup- 
 port an action, on a contract to be performed by delivery of prop- 
 erty ;^ on a contract for payment of goods, neither time nor place 
 of payment being specified ;* on an order to deliver goods ;^ for 
 the price of goods delivered on a promise to account at certain 
 
 <• prices, or return on demand ;^ on a contract payable in anything 
 other than money,'' or where the undertaking is collateral.* 
 
 Where the debt is paj^able in personal property, to be delivered 
 at a particular time, and the debtor fails to deliver it at such time ;* 
 where there was an entire failure of consideration upon which 
 plaintiff paid defendant's debt and defendant became at once 
 liable to refund ;i" on a promise to do a certain act or pay a sum 
 of money, and the act has not been done ;^^ on a promise to pay 
 if a stranger should fail to do a certain action;^* by an 
 
 money 
 
 1. IJIinois Central R. Co. v. Allen, 39 
 111. 205; State V. Beck, i Hill (S. Car.), 
 363; Pillow V. Bushnell. 5 Barb. (N. Y.) 
 156; Root V. Shields, i Woblw. 340, 354; 
 Walker v. Fitts, 24 Pick. (Mass.) 191. 
 
 If a debtor procures the signatures of 
 his creditors to an agreement to settle 
 their claims for a percentage, one of 
 them, who afterwards learns that another 
 was induced to sign by the promise of a 
 larger percentage, may maintain an action 
 oil the original claim without returning 
 composition notes received by him from 
 the debtor or their proceeds. Cobb v. 
 Tirrell, 137 Mass. 143. 
 
 Where one beneficially interested in a 
 cause from ignorance of the law surren- 
 ders his rights, he cannot hold the op- 
 posite party to a knowledge of the law 
 and charge him for a loss occasioned by 
 his own indiscretion; so where a con- 
 stable levied on and sold property al- 
 ready bound by executions in the hands 
 of the sheriff, and paid over the money 
 to the plaintiffs in the executions in the 
 sheriff's hands, and the plaintiffs after- 
 wards paid the same back to the con- 
 stable under the advice that his levy and 
 sale had divested the executions in the 
 sheriff's hands of their liens, it was held, 
 that the plaintiffs could not afterwards 
 charge the sheriff with negligence, al- 
 though he was advised that the proceed- 
 ings of the constable had divested the 
 executions in his hands of their liens and 
 had acted under that advice. Harrison 
 V. Marshall, 6 Port. (Ala.) 65. 
 
 2. The discontinuance of a favor gives 
 no cause of action. Travis v. Duffan, 2 
 Tex. 49. 
 
 3. Martin v. Channin, 7 Mo. 277; 
 Bradley v. Farrington, 4 Ark. 532. 
 
 4. Frazee v. McCord, i Ind. 224. 
 Upon a contract for payment in such 
 goods as should suit the payee, he is 
 bound to demand such goods specifically, 
 and within a reasonable variety before 
 action. 
 
 5. Decker v. Birhap, i Morr. (Iowa) 62. 
 
 6. BoUes V. Stearns, 11 Cush. (Mass.) 
 320. 
 
 7. Wyatt V. Bailey, i Morr. (Iowa) 
 
 396- 
 
 8. January v. Duncan, 3 McLean (C. 
 C), 19. 
 
 In a suit brought upon an instrument, 
 "For value received, I promise to pay 
 A $500 in castings, at B & C's foundry in 
 Augusta; said A's present account to go 
 in part payment, the castings to be taken 
 at 6 cts. per pound," no time being 
 fixed, demand and refusal must be 
 proven. Hotchkiss v. Newton, 10 Ga. 
 
 560- 
 
 Where a miller fraudulently drew irtto 
 his boom and manufactured logs owned 
 by other parties, who then transferred to 
 a third party, such third party must show 
 a demand and notice after transfer to sup- 
 port an action. Root v. Bonemma, 22 
 Wis. 539. 
 
 9. Crabtree v. Messersmith, 19 Iowa, 
 179. 
 
 10. Pennington v. Clifton, 10 Ind. 172. 
 
 11. Lent V. Padelford, 10 Mass. 230. 
 No demand is necessary where both 
 plaintiff and defendant have equal knowl- 
 edge of the matter, as, for instance, an 
 act to be done by a stranger. 
 
 12. Dyer v. Rich, i Mete. (Mass.) 180. 
 
 181 
 
Demand — When not Beqnired, 
 
 ACTIONS. 
 
 Appearance, 
 
 owner for the recovery of property from a bona-fide purchaser 
 from one having no authority to sell j'- when an obligation to pay 
 is complete ;'-* where there is a joint indebtedness and the 
 creditor has applied the property of one debtor to the payment of 
 the whole debt;* for property wrongfully taken from the owner;* 
 when the party to be charged had no right to expect, and is not 
 injured by the omission of demand \^ where an account is payable 
 in goods, the party has ceased trading and is not in a position to 
 pay them, and there has been no unreasonable delay ;* for money 
 for goods received to be sold at certain prices or returned on de- 
 mand, and the goods have been sold and money received ;'' for 
 the value of wheat, to be delivered when threshed.** 
 
 When not Required. — A demand need not be alleged for the 
 maintenance of a suit by a client against his attorney for money 
 collected ;" where the time for the payment of property is fixed ;*" 
 on an agreement to return a note, after a reasonable time ;ii 
 upon a promise to pay money, time of payment not being speci- 
 fied, after a reasonable time ; ^* on a promise to pay on demand ;i* 
 where it is the duty of a party, by contract or otherwise, to remit 
 or apply money in his hands without demand.** 
 
 7. Appearance. — [a) What Constitutes. — A formal entry, plea, or 
 motion, ascertainable by the record, constitutes an appearance.*' 
 
 1. Whitman, etc., Co. v. Tuttle, 4Nev. 
 494. 
 
 2. Watson v. Walker, 23 N. H. 471. 
 
 3. Walsh v. Ostrander, 22 Wend. (N. 
 Y.)2i3. 
 
 4. New York, etc., Co. v. Richmond, 
 6 Bosw. (N. Y.) 213. 
 
 5. Randon v. Bartoji, 4 Tex. 289. 
 
 6. Brooks v. Jewell, 14 Vt. 470. 
 
 7. Wyman v. Fowler, 3 McLean (C. 
 C), 467. 
 
 On a contract for brick, received from 
 time to time in installments, paid for by 
 a due bill for thirty days, an action for a 
 residue undelivered must be preceded by 
 demand and refusal. Widner v. Walsh, 
 3 Col. 548. 
 
 8. State V. Mooney, 65 Mo. 494. 
 
 9. Shepherd v. Crawford, 71 Ga. 458. 
 
 If from the nature of the case a. de- 
 mand would be of no avail if made, it is 
 unnecessary to put the defendant 8» mora 
 before bringing suit. Rosenthall v. Baer, 
 18 La. Ann. 573. 
 
 10. Campbell w. Clark, i Hempst. 67. 
 
 11. Henley v. Bush, 33 Ala. 636. 
 
 12. Niemayer v. Brooks, 44 111. 77. 
 
 13. Ross V. Lafayette, etc., R. Co., 6 
 Ind. 297. 
 
 14. Catterlin v. Somerville, 22 Ind. 482; 
 Ferguson v. Dunn, 28 Ind. 58; Stacy v. 
 Graham, 14 N. Y. (4 Kern.) 492. 
 
 A specific objection to a necessary de- 
 mand, made prior to bringing suit, 
 
 waives all other objections. Bartlett v. 
 Adams, 43 Ind. 447. 
 
 Plaintiff inclosed his land and thereby 
 made a partition fence, and upon calling 
 upon defendant for one-half value, no 
 objection was made as to the estimate, but 
 that he was not liable; held, that there 
 was no necessity for an estimate of the 
 value in order to bring the suit. Bart- 
 lett V. Adams, 43 Ind. 477. 
 
 Where a demand that should be made 
 by a certain day is prevented by a re- 
 straining order obtained by debtor, it 
 may be made as soon as the order is 
 dissolved. Pay v. Shanks, 56 Ind. 554. 
 
 15. Scott V. Hull, 14 Ind. 136. 
 
 The following steps have been held 
 equivalent to an appearance: 
 
 Service of an order of court applied for 
 and obtained, giving time to answer, 
 with a. notice signed "Attorney for de- 
 fendant." Ayers v. Western R. Corp., 
 48 Barb. (N. Y.) 132. 
 
 Putting in an answer. Hayes v. Shat- 
 tuck, 21 Cal. 51; Ins. Co. of North 
 America v. Swineford, 28 Wis. 257. 
 
 Or a demurrer. Kegy v. Welden, 10 
 Ind. 550; Knight v. Low, 15 Ind. 374; 
 Evans v. lies; 7 Ohio, 233. 
 
 Or a motion to dissolve an attachment. 
 Whiting V. Budd, 5 Mo. 443; Duncan v. 
 Wickliffe, 4 Mete. (Ky.) 118. 
 
 Motion for a continuance. Shaffer v. 
 Trimble, 2 Greene, Iowa, 464. 
 
 183 
 
Appearance, 
 
 ACTIONS. 
 
 Appearance. 
 
 General Appearance. — An appearance will be taken to be gen- 
 eral unless the contrary appears.^ 
 
 Its Effect. — Whatever operates as a general or- unqualified 
 appearance waives all defects or irregularities affecting the notice, 
 process, or service necessary to obtain jurisdiction over the 
 defendant.* ' 
 
 Special Appearance. — An appearance for any particular purpose. 
 
 Motion to set aside an interlocutory 
 order. Tallman v. McCarty, ii Wis. 
 401. 
 
 Talcing part in the trial. Scott v. 
 Niles, 40 Vt. 373. 
 
 Motion to mitigate damages, for a new 
 trial and taking exceptions. Wilson v. 
 Fowler, 3 Ark. 463. 
 
 Or taking an appeal. Tree v. Big 
 Stand Iron Co., 13 Ohio, 563; Weaver v. 
 Stone, 2 Grant (Pa.) Cas. 422. 
 
 Appearance and offer to file answer. 
 Tennison v. Tennison, 40 Mo. no. 
 
 Appearing in supreme court and tak- 
 ing part in the argument of a case re- 
 served estops defendant from denying 
 appearance below. Cleveland, etc., Co. 
 V. Mara, 26 Ohio, 185. 
 
 Written consent by attorney to con- 
 tinuance to a subsequent term. Bazzo v. 
 Wallace, 16 Neb. 2go. 
 
 What is not an Appearance. — Indorsing 
 admission of service on summons. Nat. 
 Bank v. Rogers, 12 Minn. 529. 
 
 Giving notice of retainer. Wandelaer 
 %i. Coomer, 6 Johns. (N. Y.) 328; Van- 
 derpoel v. Wright, i Cow. (N. Y.) 2og; 
 Mann v. Carley, 4 Cow. (N. Y.) 148. 
 
 Giving bail. Lauveau v. Ervin, 12 
 Rich. (S. Car.) 31. 
 
 Giving bond to dissolve attachment. 
 Clark V. Bryan, 16 Md. 171. 
 
 Giving attachment bond. Coplinger v. 
 Steamboat, 14 Ind. 480., 
 
 Notice of motion to dissolve attach- 
 ment. Glidden v. Packard. 28 Cal. 649. 
 
 Motion to quash. Ferguson v. Rose, 
 5 Ark. 517; Gooch v. Jeter, 5 Ark. 383. 
 
 Filing answer by attorney protesting 
 to jurisdiction. Sullivan v. Frazee, 4 
 Robt. (N. Y.) 616. 
 
 Taking a deposition. Scott v. Hull, 14 
 Ind. 136; Bentz v. Eubanks, 32 Kans. 
 321- 
 
 Motion to set aside judgment, there 
 being no personal service of process. 
 Lutes V. Perkins, 6 Mo. 57. 
 
 1. Deshler v. Foster, i Morr. (Iowa) 
 403; Abbott V. Semple, 25 111. 107; Flake 
 v. Carson, 33 111. 518; Aultman v. Stei- 
 nan, 8 Neb. log; Coljier v. Falk, 66 Ala. 
 223. 
 
 2, Once having appeared, the cause 
 
 may proceed no matter what irregularity 
 there is. Knox v. Summers, 3 Cranch. 
 496; Legee v._ Thomas, i Blatchf. 11; 
 Suydam v. Pitcher, 4 Cal. 280; Payne v. 
 Farmers' Bank. 29 Conn. 415; Deputy w. 
 Belts, 4 Han. (Del.) 352; Miles ti. Good- 
 win, 35 111. 53; Little V. Vance, 14 Ind. 
 22; Bell V. Pierson, i Morr. (Iowa) 21; 
 Hall V. Biever, i Morr. (Iowa) 113; Har- 
 ris V. Guin, i8 Miss. 563; Winchester v. 
 Cox, 3 Iowa, 575; Choteau v. Rice, r 
 Minn. 192; Lewis v. Nickols, 26 Mo. 2g8; 
 State v. Woolery, 39 Mo. 525; Fox v. 
 Reed, 3 Grant (Pa.), 81 ; Anderson v. Mor- 
 ris, 12 Wis. 689; Johnson I z/. Knoblauch, 
 14 Minn. 16; Johnson v. West, 43 Ala. 
 68g; Humphrey v. Newhall, 48 111. Ii6; 
 Carpenter v. Central Park R., ii Abb. 
 (N. Y.) Pr. N. S. 416; Vernon v. West 
 School District, 38 Conn. 112; Adams 
 Exp. Co. V. Hill, 43 Ind. 157; Shuster v. 
 Finan, 19 Kan. 114; Louisville, etc., R. 
 Co. V. Nicholson, 60 Ind. 158; Hart v. 
 Smith, 17 Fla. 767; Berry ii. Conklin, 23 
 Kan. 460; Hulett v. Nugent, 71 Mo. 131; 
 Lane v. Leech, 44 Mich. 163. 
 
 Defendant's voluntary appearance is 
 equivalent to personal service. Christal 
 V. Kelly, 88 N. Y. 285. 
 
 A general appearance is not equivalent 
 to service in time to avoid statute of lim- 
 itations. Etheridge v. Woodly, 83 N. 
 Car. II. 
 
 After appearance and plea in a case of 
 an attachment against the property of a 
 defendant not in reach of personal pro- 
 cess, the case stands as if the suit were 
 brought in the usual manner. Toland v. 
 Sprague, 12 Pet. 300. 
 
 An appearance, however, does not en- 
 able a court to take cognizance of ques- 
 tions not submitted to its jurisdiction. 
 United Slates v. Yates, 6 How. 605; 
 Payne v. Farmers' Bank, 29 Conn. 415. 
 
 An appearance of defendant where 
 plaintiff has two remedies waives objec- 
 tions to the remedy pursued. Fisher v. 
 Hepburn, 48 N. Y. 41. 
 
 Appearance of a party to have his case 
 put at the foot of the docket gives the 
 court sufficient jurisdiction to render a 
 personal judgment. Crear v. Clough, 
 52 Mo. 55. 
 
 183 
 
Appearance. 
 
 ACTIONS. 
 
 Commencemeutr 
 
 such as to take advantage of defects, is not a waiver of those 
 defects.^ 
 
 Withdrawal. — Generally^ appearance may be withdrawn by 
 leave of court.'-* 
 
 Authority. — Usually an appearance by an attorney will be pre- 
 sumed to have been made with authority.* 
 
 8. Commenceineiit. — Except in Connecticut and Vermont, the 
 issuing or suing out of the writ is the commencement of the action. 
 In those States the service is the commencement.* A suit in 
 
 1. Campbell v. Swasey, 12 Ind. 70; 
 Allen V. Lee, 6 Wis. 478; Nye v. Liscom, 
 21 Pick. (Mass.) 263; Ames v. Winsor, 
 ig Pick. (Mass.) 207. 
 
 The filihg a motion to dismiss for want 
 of jurisdiction is a voluntary appearance, 
 waiving defect in summons. Handy v. 
 Insurance Co., 37 Ohio, 366. 
 
 An appearance for moving to quash 
 a writ for want of jurisdiction or insuffi- 
 ciency of service does not subject to the 
 jurisdiction or waive the illegality. 
 Hodges V. Brett, 4 Greene (Iowa), 345; 
 Milburn ir. Fouts, 4 Greene (Iowa), 346; 
 Ulmer v. Hiatt, 4 Greene (Iowa), 439; 
 Johnson v. Buells, 26 111. 65; Weil v. 
 Lowenthall, 10 Iowa, 575; Billin ir. 
 White, 25 La. Ann. 624; Bank of Tenn. 
 V. Anderson, 3 Sneed (Tenn.), 669; Camp 
 V. Tibbetts, 2 E. D. Smith (N. Y.), 20; 
 Stetson V. Goldsmith, 30 Ala. 602; Morris 
 V. Thierry, 29 La. Ann. 362; Covert v. 
 Clark, 23 Minn. 539. But see Curtis v. 
 Jackson, 23 Minn. 539; Harkness v. 
 Hyde, 98 U. S. 476; Fare v. Gunter, 82 
 Mo. 522; Shaw V. Rowland, 32 Kan. 154. 
 
 A rule of court requiring pleas and 
 motions in abatement to be filed within 
 two days after entry of action is not dis- 
 pensed with by a special appearance. 
 Mitchell V. Union Life Ins. Co., 45 Me. 
 104. 
 
 An appearance to set aside an irregular 
 judgment is not a waiver of any right. 
 Pomeroy v. Betts, 31 Mo. 419. 
 
 Or in arrest of judgment. Schell v. Le- 
 land, 45 Mo. 289. 
 
 Appearance merely to object, not 
 waiver of want of jurisdiction. Stand- 
 ley V. Arnow, 13 Fla. 361. 
 
 To constitute a waiver of defects there 
 must be an intention to appear. Merkee 
 V. Rochester, 20 N. Y. Supreme Ct. 157. 
 
 A general appearance does not pre- 
 clude the afterwards setting up want of 
 jurisdiction. Wheelock v. Lee, 74 N. Y. 
 
 495- 
 
 This is so also when taken with a mo- 
 tion to dismiss writ for want of proper 
 service. Michels v. Stork, 44 Mich. 22. 
 
 Petition fpr removal to Federal court 
 
 in which parties not served join is not 
 an apearance, as to them, in State court. 
 Schwab V. Mabley, 47 Mich. 512. See 
 Small V. Montgomery, 17 Fed. Rep. 865; 
 Hendrickson v. Chicago, etc., R. , 22 Fed. 
 Rep. 569. 
 
 Non-appearance. — A party not appear- 
 ing waives nothing in regard to jurisdic- 
 tion or authority of the court, or in the 
 way of objections to the proceedings, 
 and competency and sufficiency of plain- 
 tiff's evidence. Clark v. Van Vracken, 
 20 Barb. (N. Y.) 278. 
 
 In Pennsylvania an appearance de bene 
 esse is good if held by tlie court that the 
 process is sufficient. Boland v. Mason, 
 66 Pa. 138. 
 
 2. Dana v. Adams, 13 111. 691. 
 
 An appearance entered through fraud 
 or mistake, may, 'be withdrawn. See 
 Michen v. McCoy, 3 W. & S. (Pa.) 501; 
 United States v. Yates, 6 How. 605. 
 
 A withdrawal leaves the case as if there 
 had been no appearance, and does not 
 submit to the jurisdiction. Graham v. 
 Spencer, 14 Fed. Rep. 603. 
 
 3. Martin v. Judd, 60 III. 78; Leslie v. 
 Fisher, 62 111. 118. 
 
 When sued on a record in which judg- 
 ment has been entered on an attorney's 
 appearing for the defendant, said defend- 
 ant may deny authority by special plea. 
 Hill V. Mendenhall, 21 Wall. 453. 
 
 A regular appearance, even without 
 authority, confers jurisdiction. England 
 ■u. Garner, 90 N. Car. 197. 
 
 4. Carpenter v. Butterfield, 3 Johns. 
 (N. Y.) Cas. 145; Hogan v. Cuyler, 8 
 Cow. (N. Y.) 203; Parker v. Colcord, 2 N. 
 H. 36; Ford V. Phillips, l Pick. (Mass.) 
 202; Reed v. Brewer, Peck. (Tenn.) 276; 
 Thompson v. Bell, 6 T. B. Mon. (Ky.) 
 560; Day V. Lamb, 7 Vt. 426; Gates v. 
 Bushnell, 9 Conn. 530; Downer v. Gar- 
 land, 21 Vt. 362; Cox V. Cooper, 3 Ala. 
 256; Whitakerw. Turnbull, 3 Harr. (Del.) 
 172; Fearle v. Simpson, 2 111. 30; Swisher 
 ■0. Swisher, Wright (Ohio), 755; Caldwell 
 V. Heitshu, 9 W. & S. (Pa.) 51. 
 
 To render the action ' ' commenced "in 
 Vermont, there must be service of the 
 
 184 
 
•Consolidation. 
 
 ACTIONS. 
 
 Consolidation, 
 
 ■equity is commenced when the bill is filed, not when defendant is 
 served. 1 
 
 9. Consolidation. — The consolidation of actions rests in the dis- 
 •cretion of the court on motion made for that purpose.* 
 
 Union of Legal and Equitable Demands. — A party who claims a 
 legal title must proceed at law, while one whose title or claim is 
 equitable must proceed by the forms and rules of equity pro- 
 ceedines.^ 
 
 writ sufficiently completed to call upon 
 the defendant to answer. Kirby v. Jack- 
 son, 42 Vt. 552. 
 
 The filing of a summons and complaint 
 is the commencement of an action in re- 
 lation to real estafe only for the purpose 
 of operating as constructive notice to 
 purchasers, etc., from the defendant, and 
 for no other purpose. Haynes v. On- 
 derdonk, 2 Huii (N. Y.), 619, 
 
 If the summons be sued out before the 
 -days of grace have expired, the cause of 
 action does not exist on a note. Collins 
 ■V. Montemy, 3 111. App. 182. 
 
 Commencement will be presumed when 
 ■appearance made and answer filed, if 
 record shows no issuance of writ or any 
 -objection taken. Charlestown v. Hay, 
 74 Ind. 127. 
 
 No property being attached and no ser- 
 vice attempted, an action cannot be prop- 
 erly entered. Searles v. Hardy, 75 Me. 
 .461. 
 
 1. Gordon v. Tyler, 53 Mich. 629. 
 
 a. Worthy v. Chalk, 10 Rich. (S. Car.) 
 141; McRae v. Boast, 3 Rand. (Va.) 481; 
 "Scott V. Brown, i Nott & M. (S. Car.) 
 .417; Lewis V. Daniel, 45 Ga. 124. 
 
 A court of equity may consolidate with 
 or without consent of complainants. 
 Burnh^m v. Dalling, 13 N. J. L. 310. 
 See also Groff v. Musser, 3 Serg. &: R. 
 (Pa.) 262; Reid v. Dodson, i Overt. 
 ■(Tenn.) 396; Clason v. Church, Col. (N. 
 Y.) Cas. 62; I Johns. (N. Y.) Cas. 29. 
 
 Several suits which might have been 
 comprised in one writ may be consoli- 
 dated on motion, on payment of costs in 
 all suits but one, unless the defences are 
 •different. Powell v. Gray, i Ala. 77. 
 
 Several actions of ejectment compris- 
 ing the same question and defence liave 
 been consolidated. Den v. Kimble, 10 
 N. J. L. 335; Jackson v. Stiles, 5 Cow. 
 ((N. Y.) 282. 
 
 Even when one suit has been com- 
 menced before another, unless causing 
 'prejudice or delay to plaintiff! Dunning 
 yv. Bank, 19 Wend. (N. Y.) 23. 
 
 Defence must be same or there must 
 ifce no defence, or questions arising must 
 be identical. Wilkinson v. Johnson, 4 
 Hill (N. Y,), 746.; Logan v. Mechanics' 
 
 Bank, 13 Ga. 201; Howard v. Chamber- 
 lain, 64 Ga. 684. 
 
 Lands which are the subject of differ- 
 ent actions, being situated in different 
 counties, or parties to the one not being 
 interested in the subject of the other, the 
 actions cannot be consolidated. Mayor 
 V. Coffin, 90 N. Y. 312. 
 
 Promissory Notes. — Actions on promis- 
 sory notes having the same drawer, in- 
 dorser, and indorsee will be allowed to 
 consolidate. Bank v. Cohen, 2 'Nott & 
 M. (S. Car.) 440. 
 
 Actions on such notes drawn at differ- 
 ent dates and payable at different times, 
 though by same plaintiff against same 
 person, cannot be consolidated unless the 
 defences are the same. Worley v. Glent- 
 worth, 10 N. J. L. 241 ; Thompson v. 
 Shepherd, 9 Johns. 262. 
 
 The amount of notes must not exceed 
 jurisdiction. Parrott v. Green, i McCord 
 (S. Car.), 53. 
 
 Practice. — Two suits consolidated must 
 be conducted as if one and the same. 
 Castro V. Whitlock, 15 Tex. 437. 
 
 A motion to consolidate must be made 
 before trial. Eleventh Ward Sav. Bank 
 V. Hay, 8 Daly (N. Y.), 328. 
 
 Patents. — Two suits for infringement 
 of different patents in one machine may 
 be consolidated. 24 Fed. Rep. 90. 
 
 3. Hurt V. Hollingsworth, 100 U. S. 
 100; S. P. La Mothe Manufacturing Co. 
 V. National Tube Works Co., 7 Repr. 
 138. 
 
 While M. was occupying lands as a 
 homestead a creditor caused them to be 
 sold on execution, and H. bought them 
 and took a sheriff's deed but did not get 
 possession. Later M. sold the lands to M. 
 and gave him a deed and possession. 
 Of course the title then depended on the 
 validity of the homestead claim: if the 
 land was exempt, the execution sale was 
 a nullity; if it was not, then M.'s con- 
 veyance was void, for when it was made 
 his title" had been divested. To determine 
 the question, M. brought suit to vacate 
 the sheriff's deed as a cloud on the title, 
 and H. answered, denying the homestead 
 exemption, alleging his own purchase 
 and that M. wrongfully withheld the land 
 
 184a 
 
Consolidation. 
 
 ACTIONS. 
 
 Joinden 
 
 10. Joinder. — Several causes of action may be joined in the" 
 same suit, provided they are of the same nature and arise in the 
 same right. Actions differing in form have been allowed to be 
 joined. 
 
 Entire rights of action arise out of one and the same contract ; 
 several, out of different acts or contracts.^ 
 
 from him, ajid asking judgment for pos- 
 session. The circuit court, partly on a 
 stipulation of parties, entertained both 
 claims, heird the evidence as to the 
 homestead claim and decided that it was 
 invalid, and then rendered judgment dis- 
 missing M.'s suit and granting H.'s de- 
 mand for possession. Held,\hzX. a Federal 
 court cannot entertain two such demands 
 in one action. The first is strictly a suit 
 in equity seeking especial relief which 
 only a court of chancery can grant. The 
 second is an action at law for the recovery 
 of real property. The two cases are en- 
 tirely different in their nature and can be 
 determined where the distinctions between 
 equitable and legal proceedings are main- 
 tained only in separate suits. In the one 
 case, if the allegations of the plaintiff be 
 sustained the judgrlnent must be declara- 
 tory and prohibitory, adjudging that the 
 deed of the sheriff to the defendant con- 
 stitutes a cloud upon his title, and en- 
 joining the defendant from asserting any 
 claim to the premises under it. In the 
 other cases, if the defendant establishes 
 , his averments the judgment must, be for 
 the possession of the premises and the 
 rent and the profits. 
 
 In the Federal courts such a blending 
 of equitable and legal causes of action in 
 one suit is not permissible. See Hurt v. 
 Hollingsworth, loo U. S. loo. 
 
 The statute adopting State laws of pro- 
 cedure fpr Federal courts does not adopt 
 a State law allowing equitable defences 
 to be set up against a demand of legal 
 cognizance, e.g., in an action on a judg- 
 ment. ^ Montejo v. Owen, 14 Blatchf. 
 324; S. P. La Mothe Manufacturing Co. 
 V. National Tube Works, 7 Repr. 138. 
 
 Where one of two innocent parties must 
 suffer from the misconduct of a third, he 
 who placed it in the power of such third 
 party to work the injury must suffer the 
 loss. Bailey !<. Crim, 8 Repr. 455; Rawls 
 V. Deshler, 4 Abb. (N. Y.) App. Dec. 12. 
 
 After recovfery in an ejectment suit a 
 law proceeding is instituted for the mesne 
 profits. On failure to recover by reason of 
 the bar of tke statute of limitations, re- 
 coiirse to equity will not be allowed. 
 Mitchell V. Mitchell, 21 Md. 585. 
 
 Equity cannot be resorted to after 
 plaintiffs have failed to make out a case 
 
 in an action for damages fpr non-per- 
 formance of contract for sale of land. 
 Towle V. Jones, i Robt. (N. Y.) 87. 
 
 Under the provisions of the N. Y. 
 Code for the joinder of legal and equi- 
 table actions, one demanding in one suit 
 the removal of a cloud on his title and 
 recovery of possessioi* must allege facts 
 necessary to support him if sought in 
 separate suits. Bockes v. Lansing, 74 
 N. Y. 437. 
 
 In general, claims to equitable relief, 
 and to a judgment at law, cannot be 
 prosecuted in the same action. Mayo 
 V. Madden, 4 Cal. 27; Harvey v. Dewitt, 
 13 Gray (Mass.), 536; Reubens v. Joel, 
 13 N. Y. 488. 
 
 1. Com. Dig., "Action," G. ; i Bac. 
 Abr. 51-2; 2 Saund. 117; Holland v. 
 Bothmar, 4T. R. 229; Halleckw. Powell, 
 2 Caines, 217; Union Cotton Manufac- 
 tory V. Lobdell, 13 Johns. 462. 
 
 Several items of account arising at 
 different times need a contract, either 
 express or implied, embracing all the 
 items, to make an entire demand. Secor 
 V. Sturges, 16 N. Y. 548. 
 
 An account for goods sold, all due, is 
 an entire demand. Guernsey v. Carver, 
 8 Wend. (N. Y.) 492. 
 
 A creditor holding several notes 
 against the same debtor, each of which, 
 separately, is within a justice's, jurisdic- 
 tion, while the amount of all exceeds it, 
 may sue on them separately before a jus- 
 tice, or, if all due and in the same right, 
 may unite them in one suit before a court 
 of larger jurisdiction. Ferguson v. Cul- 
 ton, 8 Tex. 283. 
 
 So in Pennsylvania the court will 
 on appeal consolidate separate suits be- 
 fore a justice on different promissory 
 notes. Boyle v. Grant, 18 Pa. St. 162. 
 
 The law of Louisiana will not favor a 
 number of distinct suits against the same 
 person; nor the uniting in one suit de- 
 mands against several distinct persons. 
 Leverich v. Adams, 15 La. Ann. 310. 
 
 Deposits on two accounts at a bank in 
 trust for two children give rise to sepa- 
 rate claims on depositor's death by his 
 children. Ellison v. New Pedford, etc.. 
 Savings Bk., 130 Mass. 48. 
 
 Where there are two contracts, one ex- 
 press, the other implied, two separate 
 
 1846 
 
Joinder. 
 
 ACTIONS, 
 
 Splitting of Actions, 
 
 11. Splitting of Actions. — An entire claim or demand arising out 
 of a single transaction, whether in the nature of contract or tort, 
 cannot be divided into separate and distinct claims and the same 
 form of action brought for each, or two suits maintained without 
 defendant's consent.^ 
 
 causes of action may be combined in one 
 suit under tiie New York Code. Hawk 
 V. Thorn, 54 Barb. (N. Y.) 164 
 
 Breaches of contract requiring sepa- 
 rate findings are independent causes of 
 action, though arising on the same con- 
 tract. Boyce 71. Christy, 47 Mo. 70; 
 Brownell v. Pacific R. Co., 47 Mo. 239. 
 
 Claims as of an executor cannot be 
 joined with those accruing by private 
 right. But such as in their nature must 
 accrue in one's own right, as for work and 
 labor done, may be joined with those 
 accruing in the right of testator. Bulk- 
 ley V. Andrews, 39 Conn. 523. 
 
 A cause of action against the trustee 
 of an insolvent savings bank to recover 
 damages caused by his unauthorized in- 
 vestipents cannot be joined with one on 
 a bond given by him to assist in making 
 up a deficiency in the assets of the bank. 
 The N. Y. Code does not apply where 
 the liability is by operation of law and 
 fact. French v. Salter, 17 Hun (N. Y.), 
 
 546. 
 
 Two bills of goods do not constitute 
 one demand if one may be sued on be- 
 fore the other becomes due. Stickel v. 
 Steel, 41 Mich. 350. 
 
 Counts charging negligence in inspec- 
 tion of title, and deceit, may be joined in 
 one action against the representative of 
 a deceased attorney-at-law. Tichenor v. 
 Hayes, 41 N. J. L. 193. 
 
 Where distinct^and separate judgments 
 in dififerent amounts are asked the par- 
 ties cannot unite, though against the same 
 person. Independent Sch. Dist. v. Same, 
 50 Iowa, 322. 
 
 An action on a note against maker 
 and indorser cannot be joined with an 
 action on account against the indorser 
 only. Thorpe v. Dickey, 51 Iowa, 676. 
 
 Nor an action for conversion of per- 
 sonal property and an account in same 
 complaint. Thompson v. St. Nicholas 
 Bank, 6 How. (N. Y.) Pr. 163. 
 
 Nor actions against three successive 
 county treasurers for misinvestment. 
 Firth V. Roe, 60 How. (N. Y.) Pr. 432. 
 
 A demand for rents of land with an 
 allegation of their conversion is not a 
 joind<er of tort and contract. Finch v. 
 Baskerville, 85 N. C. 205. 
 ' A note with a promise to pay interest 
 at one time and principal at another may 
 
 ■184<; 
 
 be the foundation of two actions, though 
 the principal be due when the action for 
 interest is brought. Dulaney v. Payne, 
 loi 111. 325; s. c, 40 Am. Rep. 205. 
 
 1. Wagner v. Jacoby; 26 Miss. 532; 
 Farrington v. Payne, 16 Johns. (N. Y.) 
 432; Herriter v. Porter, 23 Cal. 385; 
 Brannenburg v. Indianapolis, etc., R. 
 Co., 13 Ind. 103; Logan z/. Caffrey, 30 
 Pa. St. 196; Smith v. Jones, 15 Johns. 
 (N. Y.) 229; Avery v. Fitch, 4 Conn. 
 362; Vance v. Lancaster, 3 Hayw. 
 (Tenn.) 130; Colvin v. Corwin, 15 
 Wend. (N. Y.) 557; Firemen's Ins. Co. 
 V. Cochran, 27 Ala. 228; Chicago R. 
 Co. V. Nichols, 57 111. 464; State v. 
 Shinn, 42 N. J. L. 138; Hennequin z;. Bar- 
 ney, 24 Fed. Rep. 580; Olcott v. Hugus, 
 105 Pa. St. 350; Hoff V. Myers, 42 Barb. 
 (N. Y.) 270. 
 
 Where in an action upon an award in 
 favor of two partners the defendant in- 
 sisted upon a misjoinder of parties, he 
 having bought the interest of one of the 
 parties, and the court had given the 
 plaintiff leave to amend by striking out 
 the name of his partner as a plaintiff, 
 held, that the defendant had agreed that 
 the interests of his creditors should be 
 separate, and could not complain that he 
 was held to his contract. Carrington v. 
 Crocker, 37 N. Y. 336. 
 
 An action will lie in case of partial 
 breach, for such breach, notwithstanding 
 the full time has not elapsed, unless the 
 contract is indivisible; but such recovery 
 will bar a further claim for damages of 
 the breach sued on. Crabtree v. Hagen- 
 baugh, 233. 
 
 The court may try such counts as are 
 in its jurisdiction, though there may be 
 other counts not in the jurisdiction setting 
 forth different causes of action. Diblee 
 V. Davison, 25 111. 486. 
 
 Independent sales of liquor in cask, 
 made on different days may be sued for 
 separately. Cushman v. Ban, 2 Hilt. 
 (N. Y.) 340. 
 
 Suit brought and judgment recovered 
 upon certain items in an account bar a 
 subsequent suit upon other items in the 
 same account not claimed in the first ac- 
 tion. Borngesser v. Harrison, 12 Wis. 
 544- , 
 
 The test of entirety is whether the 
 same evidence is necessary to support all 
 
Splitting of Actions. 
 
 ACTIONS. 
 
 Splitting of Actions, 
 
 (a) Same Security. — When two suits for the same cause of 
 .action are founded upon different securities, the plaintiff may- 
 
 branches of a claim. Crips v. Talvande, 
 4 McCord. (S. C.) 20. 
 
 The taljing by one act of several chat- 
 tels of the same person will only support 
 «ne action. Any articles omitted cannot 
 be recovered. Folsom v. Clemence, 119 
 Mass. 473. 
 
 A cause of action founded on conver- 
 sion of personal property may be joined 
 with one founded on contract. The tort 
 may be waived and the suit brought on 
 the implied contract. Logan v. Wallis, 
 76 N. C. 416. 
 
 A party who has paid judgment and 
 costs against him cannot after reversal 
 recover judgment in one suit and costs 
 in another. Clayes v. White, 83 III. 540. 
 
 An account for a bill of goods pur- 
 chased in one day is to be taken as one 
 entire transaction in the absence of evi- 
 dence of a contrary intention. Magruder 
 v. Randolph, 77 N. Car. 79. 
 
 The action against a decedent's exe- 
 cutor or administrator for deceit of de- 
 cedent does not merge a judgment ob- 
 tained against decedent's surviving part> 
 ner for the debt contracted by means of 
 the deceit. Morgan v. Skidmore. 3 Abb. 
 (N. Y.) N. Cas. 92. 
 
 Action for wrongful conversion cannot 
 be joined with one for proceeds of same 
 property. Teall v. Syracuse, 32 Hun 
 <N. Y.), 332. 
 
 But false representations and conver- 
 sion may. Silver v. Holden, 50 N. Y. 
 Super. Ct. 236. 
 
 Possession of real estate and foreclos- 
 ure of mortgage cannot be asked for in 
 one action. Butler University v. Conard, 
 94 Ind. 353. 
 
 A had two horses killed at the same 
 time on a railroad, and sued the company 
 before a justice for the killing of one 
 horse, and recovered judgment for $100, 
 the limit of the jurisdiction. Held, that 
 he could not afterwards maintain an 
 action before a justice for the other 
 horse. Camp v, Morgan, 21 111. 255. 
 
 A party cannot bring several suits for 
 several sums past due on a lease. If 
 more than one payment is due, these 
 payments should be consolidated in one 
 suit. Casselberry v. Forquer, 27 111. 170. 
 See Lee v. Kearny Committee, 42 N. J. 
 
 L. 543- 
 
 Where a party has demands against 
 another resting in account, and having 
 brought suit on the trial withdraws from 
 the jury some of the items, while he 
 submits others, he cannot sustain an 
 action to recover the items so withdrawn. 
 
 Stevens v. Lockwood, 13 Wend. (N. Y.) 
 644. 
 
 An entry on land, and felling trees 
 and a conversion of them, are distinct 
 causes, and when united in a complaint 
 cannot be severed by the court, both 
 causes failing together. Frost v. Duncan, 
 19 Barb. (N. Y.) 560. 
 
 The doctrine that when an order is 
 drawn on a fund it amounts to an 
 assignment thereof does not apply to an 
 order for a part of the fund only. This 
 gives no lien as against the drawee. He 
 has a right to stand on the singleness of 
 his original contract, and to decline any 
 legal or equitable assignments by which 
 it may be broken into fragments. Man- 
 deville v. Welch, 5 Wheat. 286. 
 
 There being several different claims 
 arising out of the same contract, payable 
 at different times, all those due must be 
 included in an action brought. Re- 
 formed, etc.. Church v. Brown, 54 Barb. 
 (N. Y.) 191. 
 
 An owner may maintain separate" ac- 
 tions of ejectment for two lots, for which 
 there was a contract of sale, and the 
 payment of the whole purchase-money 
 under one verdict is payment of the 
 purchase-money in the other. Roddy v. 
 Harsh, 62 Pa. 129. 
 
 Where the second ground of action was 
 not within the knowledge of the plaintiff 
 at the time of commencing the first action, 
 the objection to a subsequent action does 
 not apply. Risley v. Squire, 53 Barb. 
 (N. Y.) 280. 
 
 A creditor may bring an action for his 
 claims notwithstanding the pendency of 
 an action against him by the debtor in 
 which such claims might have been set 
 up as a counter-claim. Liggnot v. Red- 
 ding, 4 E. D. Smith (N. Y.), 285; Taggart 
 V. Rite, 37 Vt. 47. 
 
 Privity. — Where an action in form ex 
 delicto is brought to recover damages for 
 an injury arising from a breach of con- 
 tract, some privity between plaintiff and 
 defendant must be shown. Gray v. 
 Ottolinger, 12 Rich. (S. Car.) loi. 
 
 A submission to an issue framed by 
 court, superseding two ejectment suits 
 and an equity suit, is binding, and the 
 verdict conclusive. Long's Appeal, 92 
 Pa. 171. 
 
 A party cannot maintain two incon- 
 sistent actions to enforce the same right. 
 Pott's Appeal, 5 Pa. 500. 
 
 Where a person can have an adequate 
 remedy by an order in a cause already 
 pending in the same court, or under a 
 
 184d 
 
Splitting of Actions. 
 
 ACTIONS. 
 
 Cumulation. 
 
 prosecute both to judgment, but he may only have one satisfac- 
 tion.^ 
 
 12. Cumulation. — It is not always necessary to enforce a statutory 
 remedy in order to pursue a statutory right ; but where a statute 
 confers a right and declares the course necessary to enforce it, 
 the remedy so provided must be adopted. The ordinary remedies 
 provided by common law or general legislation cannot be pursued.'-* 
 
 When a statute prescribes a new remedy for an existing com- 
 mon-law right, the new remedy is cumulative.^ 
 
 13. Statutory Remedies. — One who sues on a right of action given 
 by statute must present a case within the provisions of the stat- 
 
 biU in equity already' filed by him, another 
 or separate action will not lie. Mason v. 
 Miles, 53 N. Car. 564; Whitaker v. Bond, 
 Phil. Eq. (N. Car.) 227. 
 
 An action on a promissory note given 
 for work and labor done and materials 
 furnished by the plaintiff in erecting and 
 repairing certain buildings of the defend- 
 ant cannot be maintained if it appears 
 that the plaintiff, prior to the commence- 
 ment of the suit, had instituted proceed- 
 ings in another court to enforce his lien 
 on the buildings for the same debt. 
 Ogden V. Bodle, 2 Duer (N. Y.), 611. 
 
 The fact that an action for an account- 
 ing has been brought in which the de- 
 fendant may be required to account for 
 rnoneys received after the commencement 
 of the action does not oblige the plaintiff 
 to obtain such accounting; but he may 
 make such items the subject of a new 
 action. Tyler v. Willis, 35 Barb. (N. Y.) 
 213; 13 Abb. Pr. (N. Y.) 369. 
 
 1. Stillwell V. Bertrand, 22 Ark. 379. 
 The true test is whether satisfaction 
 
 has been had; if not, both proceedings 
 on the primary debt and collateral may 
 be continued. Corn Exchange Ins. Co. 
 V. Babcock, 8 Abb. Pr. (N. Y.) N. S. 
 256. 
 
 2. The Highland Light, Chase Dec. 
 150; James v. Atlantic Delaine Co., 11 
 Bankr. Reg. 390; St. Pancras z*. Batten- 
 berg, 2 C. B. (N. S.) 477; Dudley v. 
 Mayhew, 3 N. Y. 9; First Nat. Bank of 
 Whitehall v. Lamb, 57 Barb. (N. Y.) 434; 
 Haley v. Petty, 42 Ark. 392; McKinney v. 
 Monongahela Nav. Co., 14 Pa. St. 65; 
 Ward V. Severance, 7 Cal.,126; Fuller z/. 
 Edings, II Rich. (S. Car.) 239; Butler v. 
 State, 6 Ind. 165; Cole v. Muscatine, 14 
 Iowa, 296; Hazen v. Essex Co., 12 Cush. 
 (Mass.) 475; Camden v. Allen, 26 N. J. 
 L. 398 ; Weller v. Wegand, 2 Grant (Pa.), 
 103; Brown v. White Deer, 27 Pa. St. 
 109; Babb V. Mackey, 10 Wis. 371. 
 
 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. 
 Collinson v. Newcastle & Darlington R. 
 Co., I Car. & Kir. 546; Lichfield v. 
 Simpson, 82 B. 65. See Law v. Salter, 
 51 N. Y. I. 
 
 Where a statute authorized a corporation 
 to forfeit the shares of stock of a subscriber 
 fo.r the non-payment of instalments due 
 upon a stock subscription, an exercise of 
 the right of forfeiture on the part of the 
 corporation will bar any subsequent 
 action for such instalments. Small v. 
 Herkimer Mfg. Co., 2 N. ,Y. 330; Mills 
 V. Stewart, 41 N. Y. 384. 
 
 A railroad had in its construction the 
 legal right to pass over and destroy a 
 highway in a town, and a general statute 
 provided for the injury done. To recover 
 for the acts done according to law, the 
 declaration must be specially founded- on 
 the statute. Henniker v. Contoocook 
 Valley R., 29 N. H. 146. 
 
 Where a remedy is given for only part 
 of an injury authorized by statute, the 
 common law may be resorted to for the 
 residue. Troy v. Cheshire R. Co., 23 
 N. H. 83; Gibbes v. Beaufort, 20 S. Car. 
 213. 
 
 If the remedy given by statute is not 
 adequate, it is not presumed to be exclu- 
 sive. Johnston v. Louisville, 11 Bush 
 (Ky.), 527. 
 
 3. Coxe V. Robins, 9 N. J. L. 384; Col- 
 den V. Eldfed, 16 Johns. (N. Y.) 220; 
 Fryeburgh Canal v. Frye, 5 Me. 38; 
 Mayor, etc., of Baltimore v. Howard, 6 
 Har. & J. (Md.) 483; Booker -v. M'Ro- 
 bert, I Call. (Va.) 243; People v. Cray- 
 croft, 2 Cal. 243; Selden v. D. & H. 
 Canal Co., 24 Barb. (N. Y.) 362; Adams 
 V. Richardson, 42 N. H. 212; Bruce v. 
 Hudson Canal Co., 19 Barb. (N. Y.)37i. 
 
 A statutory remedy, given by express 
 or implied provision, does not takeaway 
 the common-law remedy, but is cumula- 
 tive. Wells V. Steele, 31 Ark. 219. 
 
 This rule is applicable to maritime law. 
 The Waverly, 7 Bias. 465. . 
 
 I C. of L.— 13 
 
 lUe 
 
statutory. 
 
 ACTIONS. 
 
 Local and Transitory, 
 
 ute.^ Any court which has jurisdiction of the matter and can 
 obtain jurisdiction of the parties may enforce a legal liability in- 
 curred, or a personal right of action fixed either by the common 
 or statute law.'-* 
 
 14. local and Transitory Actions. — Laws prescribing where de- 
 fendants are to be sued are never understood as including suits 
 local in their character, unless expressly set out.^ Actions 
 founded on privity of estate are local ; on privity of contract, 
 transitorv.* 
 
 1. Whittemore v. Cutter, T Gall. 429. 
 
 The construction of the statute, 'how- 
 ever, if remedial must be liberal. See 
 also Bowditch v. Boston, loi U. S. 16. 
 
 2. Dennick v. R. Co., 103 U, S. 11. 
 The fact that the right of action is 
 
 given by statute does not vary the prin- 
 ciple. Ex parte Van Riper, 20 Wend. 614. 
 Where a statute requires a citizen to 
 erect a fire-escape, or imposes any abso- 
 lute duty, any person damnified by the 
 non-performance may maintain an ac- 
 tion. Willey V. MuUedy, 78 N. Y. 310. 
 
 3. Rev. Stat. § 5198 — designating 
 courts in which national banks may be 
 sued — will be construed as referring to 
 transitory actions only. Actions local in 
 their nature may be maintained in the 
 proper State court against a national 
 banking association in a county or city 
 other than where it is established. Casey 
 V. Adams, 102 U. S. 66. 
 
 \, Henwood v. Cheeseraan, 3 Serg. & 
 Ravvle-(Pa.), 503. 
 
 Actions founded on contracts with re- 
 spect to lands are transitory. Livingston 
 V. Jefferson, i Brock. 203. 
 
 What have been held Local. — Trespass 
 or nuisance to real estate. Sumner v. 
 Finnegan, 15 Mass. 284; Livingston v. 
 Jefferson, i Brock. 203. 
 
 Trespass quare clausum. Roach m. 
 Damson, 2 Humph. (Tenn.) 425. 
 
 Replevin. Robinson v. Mead, 7 Mass. 
 
 353- 
 
 Covenant of seizin. Clarkson v. Gif- 
 ford, I Cai. (N. Y.) 5. 
 
 Contract for conveyance of land. 
 Parker v. McAllister, 14 Ind. 12, 
 
 Debt on a judgment in a court of the 
 State. Smith v. Clark, i Ark. 63; Ear- 
 ner V. Kenyon, 2 Johns. (N. Y.) Cas. 381. 
 Action for obstructing a way. Crook v. 
 Pitcher, 61 Md. 510. 
 
 What held Transitory. — Actions on 
 contracts and for personal injuries, and 
 for injuries to personal property. Glen 
 V. Hodges, 9 Johns. (N. Y.) 67; Gardner 
 V Thomas, 14 Johns. (N. Y.) 134; Shaver 
 -J. White. 6 Munf. (Va.) 112; Northern, 
 etc., R. Co. V. Scholl, 16 Md. 331. 
 
 Trespass qiuire clausum, in Virginia. 
 Livingston v. Jefferson, i Brock. 203. 
 
 Replevin, in Pennsylvania. Powell v. 
 Smith, 2 Watts (Pa,), 126. 
 
 Account for rents and profits of land. 
 Lewis z'. Martin, i Day (Conn.), 263. 
 
 Debt and covenant between lessor and 
 lessee for recovery of rent. Henwood v. 
 Cheeseman, 3 Serg, & Rawle (Pa.), 503; 
 Lienow v. Ellis. 6 Mass. 331; Birney v. 
 Haim, 2 Litt. (Ky.) 263. 
 
 Bill for rescinding contract for land. 
 Lewis V. Morton, 5 T. B. Mon. (Ky.) 3. 
 
 Assault and battery. Watts z/. Thomas, 
 2 Bibb. (Ky.) 458; Redgrave v. Jones, i 
 Har. & M. (Md.) 195, 
 
 Action against a railroad company for 
 killing stock, Illinois, etc., R, Co. u. 
 Swearinger, 33 111. 289. 
 
 Actions against a town to recover dam- 
 ages caused by defects in highways. 
 Titus V. Frankfort, 15 Me. 89. 
 
 Bill in equity to enjoin trespass on 
 realty by felling ' timber. Powell v. 
 Cheshire, 17 Ga. 357. 
 
 An action local at common law may 
 be brought in a court having jurisdiction 
 by statute. Curtis v. Attwood, 51 Conn, 
 169, 
 
 The New York statute relative to lo- 
 cality of actions applies only to causes 
 arising in the State, -Actions to recover 
 damages for negligence are personal and 
 transitory, and may be brought wherever 
 the defendant can be found, Barney v. 
 Bumstenbinder, 64 Barb, (N, Y,) 212. 
 
 An original action lies in Massachusetts 
 against the members of a joint-stock 
 company as partners, though the statute 
 of the State in which the company ex- 
 isted provided that suits against joint- 
 sft)ck companies should be prosecuted in 
 the name of the president or treasurer. 
 The action under the statute is local, 
 Gott V. Dinsmore, iii Mass. 45. 
 
 A suit to subject assets descended to 
 the heir, to the payment of his ancestor's 
 debts must be prosecuted in the place in 
 which the property is situate by equitable 
 proceedings. Williams v, Ewing, 31 
 Ark. 229, 
 
 184/" 
 
Discontinuance. 
 
 ACTIONS— ACTUAL. 
 
 Constructions. 
 
 15. Discontinuance. — A discontinuance does not operate to pre- 
 vent a subsequent suit for the same cause of action in every case. ^ 
 Plaintiff has absolute right to discontinue at common law before 
 or after issue joined and without leave of court.''' 
 
 (a) Termination. — A suit does not end before complete satisfac- 
 tion of or discharge from the judgment.^ 
 
 ACTUAL is something real, in opposition to constructive or 
 speculative, — something " existing in act." * 
 
 Transitory actions upon contracts can 
 be brought in any county of the State 
 where service can be had. 46 Mich. 
 552. 
 
 Action on a certificate entitling plain- 
 tiff to interest in certain real property 
 and dividends, title being in defendants 
 as trustees, is transitory. Roche v. 
 Marvin, 92 N. Y. 398. 
 
 A life-insurance company may be sued 
 in the county where the person insured 
 resided, under an act requiring insurance 
 companies to be sued in county where 
 "property insured" was. Quinn 11. Fi- 
 delity Beneficial Assoc, 100 Pa. St. 382. 
 
 1. Bingham v. Wilkins, Crabbe, 50; 
 Holmes v. The Lodemia, Crabbe, 434; 
 Gibson v. Gibson, 20 Pa. 9; Steelman v. 
 Sites, 35 Pa. St. 216; Bloss v. Plymale, 3 
 W. Va. 393. 
 
 Arbitration. — A submission to arbitra- 
 tion is a discontinuance unless there is 
 some agreement. Norwood v. Stephens, 
 7 Coldw. (Tenn.) i. 
 
 Where pending a suit a submission to 
 arbitration was made, and on award a 
 discontinuance, it was held regular, but 
 no bar to a second action. Cunningham 
 V. Craig, 53 111. 252. 
 
 Agreement to arbitrate made out of 
 court operates as a discontinuance. Ed- 
 dings V. Gillespie, 12 Heisk. (Tenn.) 548. 
 
 This is not affected by Wisconsin Code. 
 Noble V. Strachan, 32 Wis. 314; Bertschy 
 V. McLeod, 32 Wis. 205; McLeod v. 
 Bertschy, 33 Wis. 205. 
 
 2. The right to discontinue terminates 
 when the action is ready for judgment, 
 though not formally entered. Carleton 
 V. Darcy, 43 N. Y. Super. Ct. 373. 
 
 Discontinuance against two joint 
 wrongdoers on a consideration paid by 
 one is not a bar for the same cause 
 against the other. Barrett v. Third Ave. 
 R. Co., 45 N. Y. 628. 
 
 Terms. — The court may exercise its 
 discretion as to the terms on which a, 
 discontinuance is allowed. Wilder v. 
 Boynton, 63 Barb. (N. Y.) 547. 
 
 Assent. — Plaintiff may discontinue with- 
 out assent of defendant, but cannot there- 
 by deprive him of any rights which he 
 
 ■mg 
 
 may possess. Cunningham v. White, 45 
 How. (N. Y.) Pr. 486. 
 
 Time. — Discontinuance cannot be ob- 
 tained after verdict in favor of one de- 
 fendant who has set up a separate de- 
 fence and before verdict as to other de- 
 fendants. Meador v. Dollar Savings 
 Bank, 56 Ga. 605. 
 
 Fraud. — Discharge of an action ob- 
 tained by fraud or misrepresentation to 
 prejudice of plaintiff not valid. Larra- 
 bee V. Sewall, 66 Me. 376. 
 
 3. Walton v. Sugg, Phil. (N.Car.) L. 98; 
 Capehart v. Van Campen, 10 Minn. 158. 
 
 4. State V. Wells, 31 Conn. 210. 
 
 Fraud, Actual and Constructive (dis- 
 tinguished). — "Wf/aa/ fraud implies de- 
 ceit, artifice, trick, design, some direct 
 active operation of the. mind. Construc- 
 tive fraud is indirect, and may be implied 
 from some other act, or omission to act, 
 which may be, in moral contemplation, 
 entirely innocent; but which, without 
 the explanation or actual proof of its 
 innocence, is evidence of fraud." Peo- 
 ple V. Kelly, 35 Barb. (N. Y.) 457. Fraud 
 may be actual or constructive. Actual 
 fraud consists in any kind of artifice by 
 which another is deceived. Constructive 
 fraud consists in any act of omission 
 contrary to legal or equitable duty, trust, 
 or confidence justly reposed which is 
 contrary to good conscience and ope- 
 rates to the injury of another. Jackson 
 V. Jackson. 47 Ga. 99, log. 
 
 Actual Possession. — Possession means 
 simply the owning or having a thing in 
 one's own power; it may be actual or it 
 may be constructive. Actual possession 
 exists where the thing is in the immedi- 
 ate occupancy of the party ; constructive 
 is that which exists in contemplation of 
 law without actual personal occupation. 
 Brown v. Volkening, 64 N. Y. 76, 80. 
 "Actual possession," as a legal phrase, 
 is put in opposition to the other phrase 
 "possession in law," or constructive pos- 
 session. Actual possession is the same 
 &S pedis possessio or pedis positio; and these 
 mean a foothold on the land, an actual 
 entry, a possession in fact, a standing 
 upon it, an occupation of it, as a real 
 
Actual Possession. 
 
 ACTUAL. 
 
 Actual Possession, 
 
 demonstrative act done. It is the con- 
 trary of a possession in law, which fol- 
 lows in the wake of title, and is calleci 
 constructive possession. Churchill v. 
 Underdonk, 59 N. Y. . 134, 136. See 
 Jackson v. Sellick, 8 J. R. 262; Wag- 
 goner V. Hastings, 5 Pa. St. 300. 
 "Actual possession" is that which is 
 accompanied with the real and effectual 
 enjoyment of an estate with the recep- 
 tion of its fruits, and is contradistin- 
 guished from imaginary or fictitious pos- 
 session. Sufiol V. Hepburn, i Cal. 263. 
 " Actual possession" as much consists of 
 d present power and right of dominion 
 as an actual corporal presence. Min- 
 ium V. Burr, 16 Cal. 107, 109. By 
 "actual possession" is meant a subjec- 
 tion to the will and dominion of the 
 claimant, and is usually evidenced by 
 occupation — by a substantial inclosure — 
 by cultivation, or by appropriate use, 
 according to the particular locality and 
 quality of the property. Coryell v. Cain, 
 16 Cal. 567, 573. " Actual possession" 
 of land is the purpose to enjoy, united 
 with or manifested by such visible acts, 
 improvements, or inclosures as will give 
 to the locator the absolute and exclusive 
 enjoyment of it. Staminger v. Andrews, 
 4 Nev. 59, 68. There are two kinds of 
 possession of real property known to the 
 law — actual and constructive. It is "ac- 
 tual possession" when in the immediate 
 occupancy of the party. It is actual 
 when the ownei- goes upon the land to 
 take possession, and exercises acts of 
 ownership over it. It is actual also 
 where one having the title is in posses- 
 sion of lands by his tenant, agent, or 
 steward. Fleming v. Maddox, 30 Iowa, 
 240. In the case cited (Churchill v. On- 
 derdonk, 59 N. Y. 134) actual possession 
 was interpreted to mean an actual occu- 
 pation of the same; in other words, a 
 possession in fact as contradistinguished 
 from that constructive one which the 
 legal title draws after it. The correct- 
 ness of that construction is apparent. 
 The word " actual " in the statute is spe- 
 cially significant. It is plainly used in 
 opposition to "virtual" or "construc- 
 tive," and means an open, visible occu- 
 pancy. Cleveland v. Crawford, 7 Hun 
 (N. Y.), 616, 619. Cf. Orme's Case. L. R. 
 8 C. P. 281; Hadfield's Case, ibid. 306. 
 The occupation of pine land by annually 
 making turpentine on it is such an "ac- 
 tual possession" as will oust a construc- 
 tive possession by one claiming merely 
 under a superior paper title. Bynum v. 
 Carter, 4 Ired. N. C. 310. See Wolf v. 
 Ament, 1 Grant's Cases, 150. By "ac- 
 tual possession," as Che terms are here 
 
 used, is meant that possession which is 
 accompanied by the real and effectual 
 enjoyment of the property. Davis v. 
 Water Works, 57 Cal. 543. The words 
 "actual possession" have two separate 
 and distinct meanings which should not 
 be confounded; yet some courts have 
 confounded them, but we trust this court 
 will not follow such examples. "Actual 
 possession" is used as opposed to "con- 
 structive possession," such possession as 
 the law construes to be in a man when 
 there is no real possession. In this 
 sense of the words actual possession, the 
 possession of my tenant, agent, or stew- 
 ard is my "actual possession" — that is 
 to say, the possession is actual and not , 
 constructive. But actual possession has 
 another meaning. It means a possession 
 continued from day to day; such a pos- 
 session as when it is interfered with needs 
 a' summary remedy. This is the sense 
 in which actual possession is used in the 
 Code. Langworthy v. Myers, 4 Iowa; 
 18, 27. Cf. Neubrandt v. State, 53 Wis. 
 89. The " actual possession" mentioned 
 in the Maine statutes of 1853, c. 34, § i, 
 is a possession which is open, notorious, 
 and adverse in its character, and does 
 not differ from that mentioned in the R. 
 S. of 1840, c. 45, § 23, excepting as to 
 the time of its continuance. Peabody v. 
 Hewett, 52 Me. 33, 45. 
 
 Actual and pontinued Change of Pos- 
 session. — In the statute of frauds, the 
 words "actual and continued" are ap- 
 plied to the change of possession. They 
 mean an open, public change of posses- 
 sion which is to continue and be mani- 
 fested continually by outward and visible 
 signs, such as render it evident that the 
 possession of the judgment debtor has 
 ceased. He must cease from the appar- 
 ent as well as real ownership. Topping 
 V. Lynch, 2 Robertson (N. Y.), 484, 488,, 
 approved Steele v. Benham, 84 N. Y. 
 634. Cf. Camp V. Camp, 2 Hill (N. Y.), 
 628; Randall v. Parker, 3 Sandf. (N. Y.> 
 73; Grant v. Lewis, 14 Wis. 487; Bruns- 
 wick V. McClay, 7 Neb. 137; Steele v. 
 Benham, 84 N. Y. 634; Stevens v. Irwin, 
 15 Cal. 503. . 
 
 Actual Delivery. — "Actual delivery'' 
 consists in the giving real possession of 
 the thing sold to the vendee or his ser- 
 vants, or special agents, who are identi 
 fied with him in law, and represent him. 
 Bolin V. Hufifnagle, i Rawle (Pa.), r, 19. 
 
 Actual Xotice is such as has been proved 
 to have been given to a party directly 
 and personally, or such as he is presumed 
 to have received personally, because the 
 evidence within his knowledge was suffi- 
 cient to put him upon inquiry; and actual 
 
 184A 
 
Actual yotiee. 
 
 ACTUAL. 
 
 Actual Loss — Cash Payment. 
 
 notice may be proved by the facts of the 
 case from which it can be inferred. John- 
 son z>. Dooly, 72 Ga. 297. 
 
 The "actual notice" required by the 
 statute is not synonymous with actu- 
 al knowledge. We think the true rule 
 is, that notice must be held to be actual 
 when the subsequent purchaser has ac- 
 tual knowledge of such facts as would 
 " put a prudent man upon inquiry which, 
 if prosecuted with ordinary diligence, 
 would lead to actual notice of the right 
 or title in conflict with that which he is 
 about to purchase." Brinkman v. Jones, 
 44 Wis. 498, 519. 
 
 We will take leave of this point by re- 
 marking that it would, perhaps, be more 
 accurate to say that actual notice, in the 
 case we have been considering, is shown 
 when the proof, positive or presump- 
 tive, authorizes the clear and satisfactory 
 conclusion that the purchaser had knowl- 
 edge of the encumbrance, or would have 
 had it if he had not wilfully declined to 
 search for it, and thus his conscience is 
 affected by it. Jordan v. Pollock, 4 
 Ga. 145, 158. "Actual notice" does not 
 require positive and certain knowledge, 
 such as seeing the, deed; but that is suffi- 
 cient notice, if it be such as' men usually 
 act upon in the ordinary affairs of life. 
 When it is shown that purchasers are 
 affected with a knowledge of such circum- 
 stances, then the foundation is laid from 
 which the inference of "actual notice" 
 may be drawn. Beattie v. Butler, 21 Mo. 
 313. 323. Cf. Curtis V. Munday, 3 Mete. 
 (Mass.) 405; Vaughn v. Tracy, 22 Mo. 
 415; Masterson v. West End R. Co., 5 
 Mo. App. 64. 
 
 The Kansas Code, concerning the open- 
 ing-up of judgments rendered upon ser- 
 vice by publication, provides as one con- 
 dition that the party shall "make it ap- 
 pear to the satisfaction of the court, by 
 afBdavit, that during the pendency of the 
 action he had no actual notice thereof in 
 time to appear in and make his defence." 
 To constitute the "actual notice" speci- 
 hed in the statute, it is not necessary 
 that the defendant be fully informed as 
 to time of commencing suit, the court in 
 which it is commenced, the property that 
 has been attached, the exact amount 
 claimed, the day named for answer, or 
 other details of the action. It is enough 
 that he is distinctly and clearly notified 
 that a suit has been commenced and is 
 pendmg against him, and notified from 
 such a source and within such a time 
 that by the exercise of ordinary and rea 
 sonable care and prudence he can ascer- 
 tain all details and make his defence. 
 Beckwith !<. Douglas, 25 Kan. 229. 
 
 Actual Total Loss is where the subject 
 insured wholly perishes, or its recovery 
 is rendered irretrievably hopeless; a con- 
 structive total loss takes place when the 
 subject insured 'is not wholly destroyed, 
 but its destruction is rendered highly 
 probable, and its recovery, though not 
 hopeless, yet exceedingly doubtful. Butt 
 V. Brewers and Maltsters' Ins. Co., 9 
 Hun (N. Y.), 383. 
 
 An actual total loss is whe/e the vessel 
 ceases to exist in specie; becomes a 
 " mere congeries of planks," incapable of 
 being repaired; or where, by the peril in- 
 sured against, it is placed beyond the 
 control of the insured, and beyond his 
 power of recovery. Globe Ins. Co. v. 
 Sherlock, 25 Ohio St. 50. 
 
 A cargo was insured for $2339, "only 
 against general average and absolute to- 
 tal loss." The ship was wrecked and 
 the cargo sold for salvage, after pay- 
 ment of which and costs there was left 
 $750. Held, that the insurers were not 
 liable. Gould v. Louisiana Mut. Ins. Co., 
 20 La. Ann. 259. 
 
 Actual Cash Payment. — The provision 
 of a statute requiring a limited partner 
 to contribute in "actual cash payments." 
 is not violated by a payment in checks 
 of third persons, it being conceded that 
 they represented cash, and that the 
 amount actually went into the firm busi- 
 ness. Hogg V. Orgill, 34 Pa. St. 344. 
 
 Contra . authorizing a firm to apply 
 for its benefit, and as part of its capital. 
 United States bonds payable to bearer in 
 the hands of a bailee, is not "an actual 
 cash payment as capital" by a special 
 partner, even though subsequently the 
 bonds are applied for the benefit of- the 
 firm, and realize more than the necessary 
 amount in cash. Haggerty v. Foster, 103 
 Mass. 17. Cf. Pierce v. Bryant, 5 Allen, 
 91; Haviland v. Chase, 39 Barb. (N. Y.) 
 283. 
 
 Actual Cash Value. — In an insurance 
 policy the term "actual cash value" means 
 the sum of money the insured goods 
 would have brought for cash, at the mar 
 ket price, at the time when and the place 
 where they were destroyed. Mack v. 
 Lancashire Ins. Co., 4 Fed. Rep. 59. Cf. 
 Wolfe V. Howard Ins. Co., 7 N. Y. 583. 
 
 Actual Cost. — It is apparent that the 
 terms " kctual cost," "real cost," and 
 " prime cost," used in these sections, are 
 phrases of equivalent import, and mean 
 the true and real price paid for the goods 
 upon a genuine bona-fide purchase. United 
 States V. Sixteen Packages, 2 Mason, 48. 
 Cf. Alfonso V. U. S., 2 Story, 421. Un- 
 der a lease between two railroads, where- 
 by, when extra trains were required, the 
 
 185 
 
Actual Military Service. 
 
 ACTUAL. Actual Occupation, Beeidence, etc. 
 
 lessee was to be allowed " the actual cost 
 of running the same," it was held that 
 ihe terra ■ actual cost " meant money ac- 
 tually paid out. Lexington, etc., R. Co. 
 V. Railroad Co., g Gray -(Mass.), 226. 
 
 Actual Determination. — A judgment of 
 affirmance by default is not an " actual 
 determination." McMahon z/. Rauhr, 47 
 N. Y. 67. Cf. Caughey v. Smith, ibid. 
 244; Frank v. Benner, 3 Daly, 422. A 
 remittitur controls the court below, and 
 a judgmentMn pursuance of it cannot be 
 said to be an "actual determination." 
 VVilkins v. Earle42 How. Pr. (N. Y.) 253. 
 
 Actual Market Value. — The market 
 value of goods is the price at which the 
 owner of them, or the producer of them, 
 holds them for sale — the price at which 
 they are freely offered in the market; 
 such prices as he is willing to receive if 
 the goods are sold in the ordinary course 
 of trade; the price which the purchaser 
 must pay to get the goods. That is the 
 "actual market value," Cases of Cham- 
 pagne, I Ben. 241. Cf. Quarter Casks of 
 Sherry Wine, 2 Ben. 249; Six Cases of 
 Ribbons, 3 Ben. 536. 
 
 Actual Military Service. — The term ser- 
 vice, in its restricted sense, is the exer- 
 cise of military functions in the enemy's 
 country in the time of war, or the exer- 
 cise of military functions in the sol- 
 dier's own State or country in case 
 of insurrection or invasion; and in 
 this sense the words of the statute, 
 "actual military service," should be 
 understood. Van Deuzer v. Estate of 
 Gordon, 39 Vt. in. A person in the na- 
 val service of the United States is not 
 within the "actual military service." 
 Abrahams v. Bartlett, l8 Iowa, 513. By 
 the insertion of the words "actual mili- 
 tary service," the privilege, as respects 
 the British soldier, is confined to those 
 who are on an expedition. Drummond 
 V. Parish, 3 Curteis, 522, 542. But hav- 
 ing marched into the enemy's country, 
 from which he never returned, being en- 
 camped among a hostile population, and 
 acting in conjunction with soldiers who 
 were confronted by the rebel army, al- 
 though he was in winter quarters, and 
 not at the time of writing occupied with 
 any present movement of the troops, but 
 was apparently on some service detached 
 from his own regiment, we cannot say that 
 he was not a soldier " in actual service." 
 Leathers v. Greenacre, 53 Me. 561, 573. 
 "Actual military service" is confined to 
 those who are on an expedition. A sol- 
 dier alt home on furlough cannot make 
 a valid nuncupative will within the pro- 
 vision made in favor of soldiers in ac- 
 tual military service. Smith's Will, 6 
 
 Phila. 104. Cf. White w. Repton, 3 Cur- 
 teis, 81S ; Gould V. Safford's Estate, 39 Vt. 
 498. 
 
 Actual Occupation. — By "actual oc- 
 cupant," in designating the individual 
 against whom an action of ejectment 
 might be brought, was intended no more 
 than the " tenant in possession," as that 
 term was used in the former practice. 
 Occupant is he that has possession, one 
 who has the actual use or possession of a 
 thing. A soldier of the United States, 
 claiming to be in charge, under superior 
 officers, of real property, as property, of 
 the United States, is not the actual oc- 
 cupant, and an action cannot be main- 
 tained against him. People v. Ambrecht, 
 II Abb. Pr. 97. An owner of land is not 
 in the actual occupancy of the same, 
 within the meaning of § 49 of the act 
 concerning private corporations (ch. 23 
 Gen. Stat. p. 203), unless he is an actual 
 resident thereon. Hunt v. Smith, 9 Kan. 
 I37i 145. Cf. Smith v. Sanger, 3 Barb. 
 (N. Y.) 360. 
 
 Actual Ouster. — By " actual ouster" is 
 not meant a physical eviction, but a pos- 
 session attended with such circumstances 
 as to evince a claim of exclusive right 
 and title, and a denial of the right of the 
 other tenants to participate in the profits. 
 Burns v. Byrne, 45 Iowa, 285. 
 
 Actual Eesidence. — Although a party 
 may derive his title to different tracts of 
 lands from different sources, yet if the 
 tracts adjoin one another and are all in 
 one inclosure, and there is no one but 
 the owner residing thereon, such resi- 
 dence is an "actual residence" upon all 
 the tracts. Wharton v. Bunting, 73 IlL 
 16. 
 
 Actually Sold. — When are lands "ac- 
 tually sold " at a tax sale so as to entitle 
 the treasurer to his fees ? Clearly when 
 the sale is completed; when he has col- 
 lected from the purchaser the amount of 
 the bid. Miles v. Miller, 5 Neb. 269; cf. 
 Fredeldey v. Disereus, 26 Ohio, 312. 
 
 Actual Settler. — I have before ex- 
 plamed who may be an "actual settler" 
 to demand a warrant — namely, one who 
 has gone upon and occupied land with a 
 hona-fide intention of an actual present 
 residence; although he should have been 
 compelled to abandon, his settlement, by 
 the public enemies, in the first stages of 
 his settlement. But actual settlement in- 
 tended by the ninth section (Act 3d April, 
 1792-3, Smith's Laws, Penn. 209) consists 
 in clearing, fencing, cultivating, two 
 acres of ground, at least, on each hundred 
 acres, erecting a house thereon for the 
 habitation of man, and a residence o\ five 
 continued years next following his first 
 
 186 
 
ADDI TION— ADDITIONAL. 
 
 ADDITION— ADDITIONAL.— These words denote the idea of 
 joining or uniting one thing to another.* 
 
 settling, if he shall so long live. This 
 kind of settling more properly deserves 
 the name of improvements, as the differ- 
 ent acts to be performed clearly import. 
 This vfill satisfactorily explain what 
 at first appeared to be an absurdity in 
 that part of the proviso which declares 
 that " if such actual settler shall be pre- 
 vented from making such actual settle- 
 ments." Per Washington, J., Balfour v. 
 Meade, i Wash. C. C. Rep. (U. S.) i8, 
 26. 
 
 Actual Damages, — The ' ' actual dam- 
 ages" sustained by the patentee are, ac- 
 cording to the fourteenth section of the 
 act of July 4, 1836 (5 U. S. Stat, at 
 Large, 123), to be the sum fixed by the 
 verdict. Stephens v. Felt, 2 Blatchf. 
 
 37- 
 
 Actual Control, Care, or Management. — 
 The Texan code does not mean by these 
 words, actual possession. A person in 
 constructive possession of an animal 
 upon the range — as an agent and the 
 like — may exercise ""actual control, care, 
 or management" without even reducing 
 the animal into actual possession, and, 
 as we have seen, may thus constitute 
 the owner within the meaning of the 
 law. Moore v. State, 8 Tex. App. 
 496. 
 
 Actually Occupied. — A person rented a 
 house in which he resided. He let out 
 beds by the night. Held, a person who 
 lives in a house, and merely lets out 
 parts of it in the manner described, does 
 not cease to be the actual occupier. King 
 V. Inhabitants, 4 Ad. & Ell. 497. Cf. 
 King V. Inhabitants, ibid. 612. A let a 
 shed contiguous to a passage-way be- 
 tween the shed and A's store, and re- 
 ceived the rent, knowing that the shed 
 was used for gaming. Held, that A did 
 not '■ actually occupy" the shed. Com. 
 V. Dean, i Pick. 387. 
 
 Actually Employed. — Where 6 and 7 
 Vict. c. 73, § 12, required that an appli- 
 cant for admission as an attorney, dur- 
 ing the whole time of service under the 
 articles shall be "actually employed" in 
 the business of an attorney, it was held, 
 that a period of eleven months during 
 which the clerk had been absent, through 
 sickness, could not be counted as service, 
 as he had not been " actually employed " 
 as an attorney or solicitor during the 
 whole of the five years. Ex parte Moses, 
 L. R. 9 Q. B. I. 
 
 Actual Seizure. — An execution debtor 
 was possessed of a mansion-house and 
 grounds, and also of a farm, which, with 
 
 187 
 
 the exception of two outlying fields, ad- 
 joined the grounds and formed part of 
 one block with them. The farm was in 
 the debtor's occupation, although the ac- 
 counts were kept distinct. The farm- 
 house was a mile distant from the man- 
 sion-house in a direct line. On the igth 
 of May a writ of fi. fa, was executed at 
 the mansion-house by the under-sheriff, 
 who informed persons in charge there, 
 including the steward of the estate, that 
 all the goods on the estate were seized; 
 and a man was left in possession. No 
 act of seizure was done at the farm-house 
 or upon the farm on that day, the under- 
 sheriff intending what he had done to be 
 a seizure of the whole ; but on the follow- 
 ing day a man was put in possession at 
 the farm-house. The goods on the farm 
 were claimed by assignees under a bill 
 of sale made for an antecedent debt, and 
 for the purpose of giving it a preference 
 over the execution, and which was exe- 
 cuted on the evening of the 19th after 
 the seizure at the mansion-house was 
 completed. At the time of the execution 
 of the bill of sale, it was known to the 
 solicitor of the assignees that the judg- 
 ment creditor had threatened to seize, 
 and that a writ of fi. fa. on the same 
 ' judgment had been executed in another 
 county; and it was expected by him, but 
 not known, that a writ had been delivered 
 to the sheriff of the county in which the 
 goods lay. Held, that what was done on 
 the igth of May amounted to an "actual 
 seizure" of the goods on the farm and at 
 the farm-house. Gladstone v. Padwick, 
 L. R. 6 Ex. 203. 
 
 1. Where a court orders a bond to be 
 given "in addition to" the one originally 
 taken, such additional bond does not 
 supersede the original one. Walter v. 
 McSherry, 21 Mo. 76. The term " ad- 
 ditional" embraces the idea of joining 
 or uniting one thing to another, so as 
 thereby to form an aggregate. We add 
 by bringing things together. "Addi- 
 tional security" is that which, united with 
 or joined to the former, is deemed to 
 make it as an aggregate sufficient as <t 
 security from the beginning. 53 Miss. 
 626, 645. 
 
 Addition erected to a Building. — An 
 " addition erected to a former building." 
 to constitute a building within the mean- 
 ing of the mechanics' lien law (Nix. Dig. 
 487, § 5), must be a lateral addition. It 
 must occupy ground without the limits 
 of the building to which it constitutes an 
 addition; so that the lien , shall be upon 
 
ADDITION— ADDRESS OF LETTERS. 
 
 ADDRESS OF LETTERS.— By the law of negotiable instruments 
 the mailing of a notice of dishonor, properly addressed to an in- 
 dorser or drawer, will in cases where such notice may be given 
 by mail, be deemed sufficient notification of dishonor as to such 
 drawer or indorser.* 
 
 the building formed by the addition, and 
 the land upon which it stands. Updike 
 V. Skillman, 27 N. J. Law, 131. It is 
 very evident that the legislature meant 
 by the word "addition" (Nix. Dig. 487, § 
 5) to embrace something which in com- 
 mon'parlance would not be designated as 
 a building, or the phraseology would not 
 have been used, that such addition should 
 be considered a building for the purposes 
 of the act. A piazza is an " addition" to 
 a building within the meaning of the 
 5th section, Whitenack v. Noe, 11 N. J. 
 Eq. 321. 
 
 Any Addition of Building. — Where the 
 owner of two adjoining messuages con- 
 veys one of them, and it is agreed by 
 him and his grantee that if the latter 
 shall make "any addition of building" 
 westwardly, he shall not extend it north- 
 wardly beyond a certain line, the grantee 
 is not thereby restricted from raising his 
 building higher, though by so doing he 
 interrupts the access of light and air to 
 the windows of the grantor's house. 
 Atkins V. Bordman, 2 Mete. (Mass.) 
 
 457. 
 
 All Future Elections or Additions. — The 
 right of a tenant to remove trade fixtures 
 may doubtless be qualified by the cov- 
 enants in the lease. But we are of opin- 
 ion that the covenant to deliver up in 
 good order "all future erections or addi- 
 tions" to or upon the premises is limited, 
 in purpose and effect, to new buildings 
 erected or old buildings added to; and 
 cannot be extended so as to deprive the 
 tenants of the right to remove trade fix- 
 tures, much less personal property, put 
 by them upon the premises during the 
 terrn. Holbrook v. Chamberlin, 116 
 Mass. 155, 162. 
 
 1. 2 Dan. Neg. Instr. (3d Ed.) § 1021; 2 
 Edwards Bills & Notes (3d Ed.), § 812; 
 Dobree a. Eastwood, 3 C. & P. 250; 
 Stocken v. Collin, 7 M. & W. 515; Friend 
 V. Wilkinson, 9 Gratt. (Va.) 31; Shel- 
 burne Falls Banlc v. Townsley, 102 Mass. 
 177; Miller v. Hackley, 5 Johns. (N. Y.) 
 375 ; Knott v. Venable, 42 Ala. 186; 
 Bell V. Hagerstown Bank, 7 Gill (Md.), 
 216 ; True v. Collins, 3 Allen (Mass.), 
 438. 
 
 The full name of the party to whom 
 the notice is to be sent, and the name of 
 
 the town or city, is a sufficient address. 
 Ames's Cas. Bills & Notes; True v. Col- 
 lins, 3 Allen (Mass.), 440. 
 
 The address must not be too general. 
 A notice of dishonor, sent to a large city, 
 addressed to an indorser by his surname 
 only, is insufficient. 2 Ames's Cas. Bills 
 and Notes, p. 849; Walter v. Haynes, Ry. 
 c& Moo. 149; True u. Collins, 3 Allen 
 (Mass.), 438. 
 
 It has been said that such a. notice 
 would be insufficient, although sent to a 
 small town. True v. Collins, 3 Allen 
 (Mass.), 438. 
 
 A notice addressed to " W. E. Rose, 
 Columbia, S. C," held sufficient. Ben- 
 edict V. Rose, 16 S. Car. 629. 
 
 Where the name of the indorser is a 
 very common one — John Smith, for in- 
 stance — it is doubtful if an address giv- 
 ing the full name would be sufficient 
 where the notice is sent to a large city. 
 Story Prom. Notes (7th Ed.), § 346. 
 
 Where there are several towns of the 
 same name in different States, the name 
 of the State must be added, if knowit 
 Story Prom. Notes (7th Ed.), § 348 
 Beckwith v. Smith, 22 Me. 125. 
 
 A notice addressed to a post-office b_ 
 a name other than its official name is 
 sufficient, if such name was one by which 
 the post-office was commonly known 
 Bank of Geneva v. Hewlett, 4 Wend. 
 (N. Y.) 328. 
 
 " Where the party to be charged has 
 added to his signature the name of a 
 place,, it is sufficient in addressing the 
 notice to follow the signature and name 
 given." 2 Ames's Cas. Bills and Notes, 
 p. 849. See Mann v. Moors, Ry. & Moo. 
 249 ; Burmeister v. Barron, 17 Q. B. 
 828. 
 
 Where a mistake is made in the ad- 
 dress, but the notice is nevertheless duly 
 received, it will be sufficient. Walter v. 
 Haynes, Ry. & Moo. 149. Unless the 
 error in the address is calculated to mis- 
 lead the party to be notified. Story 
 Promissory Notes (7th Ed.), § 347. 
 
 If the indorser be dead at the time of 
 dishonor, notice must be sent to his ex- 
 ecutor or administrator, if it can be as- 
 certained on reasonable inquiry who or 
 where he is. 2 Dan, Neg. Instr. (3d Ed.) 
 § 1000; Oriental Bank v. Blake, 22 Pick. 
 
 188 
 
ADEQUATE— AD FILUM AQU^. 
 
 ADEQUATE. — That which is sufficient for the purpoge required. ^ 
 
 AD FILUM AaU.a;.— To the thread of the stream ; to the mid- 
 dle of the stream.* (See also FiLUM Aqu^.) 
 
 (Mass.) 206; Barnes v. Reynolds, 4 How. 
 (Miss.) 114; Cayuga Co. Bank v. Ben- 
 nett, 5 Hill (N. Y.), 236. 
 
 Where no legal representative had 
 been appointed at the time of dishonor, a. 
 notice addressed to "The Legal Repre- 
 sentatives of James M. Boyd, deceased, 
 Lynchburg," was held sufficient. Boyd's 
 Adm'r v. City Savings Bank, 15 Gratt. 
 {Va.) 501; Pillow V. Hardeman, 3 Humph. 
 .(Tenn.) 538. 
 
 It seems that a notice addressed in the 
 name of the deceased would also be suf- 
 ficient. Stewart v. Eden, Executrix, 2 
 Caines R. (N. Y.) 121. , 
 
 But a notice addressed to "the estate'' 
 of the deceased has beenh'eld insufficient, 
 as that term might apply to the heir-at- 
 law as well as to the executor or admin- 
 istrator. Massachusetts Bank v. Oliver, 
 10 Cush. (Mass.) 557. 
 
 Notice of dishonor may be addressed 
 to either the residence or the place of 
 business of the person to be notified. 
 Bank of Columbia v. Lawrence, i Pet. 
 (U. S.) 578. See U. S. Bank v. Hatch, 
 6 Pet. 250; Exch. Co. v. Boyer, 3 Rob. 
 (La.) 307; Adams v. Wright, 14 Wis. 408; 
 5tedman v. Gooch, i Esp. 3. 
 ■ Where the person to be notified re- 
 sides in one town and does business in 
 another, neither of which is that where 
 the person sending notice resides, notice 
 may be sent by mall addressed to the 
 person to be notified either at the town 
 where he resides or that where he does 
 business. Morton v. Westcott, 8 Cush. 
 (Mass.) 425; Bank of Columbia v. Law- 
 rence, I Pet. (U. S.) 578; Van Vechten 
 V. Pruyn, 13 N. Y. 549. 
 
 Where the actual residence during a 
 part of the year is different from the 
 domicile of the person to be notified, 
 notice may be sent addressed to such 
 person at such place of actual residence. 
 Thus a notice may be sent to a senator 
 addressed to him at Washington while 
 the senate is in session. Chouteau v. 
 Daniel Webster, 6 Mete. (Mass.) i. 
 
 1. Adequate Canse. — 'The expression 
 ' ' adequate cause" means such as would 
 commonly produce a degree of anger, 
 rage, resentment, or terror, in a person of 
 ordinary temper, sufficient to render the 
 mind incapable of cool reflection. Boy- 
 ett V. State, 2 Tex. App. 93, 100. It 
 may be that the judge below took the 
 
 view of Paschal's Digest, article 2254. that 
 there could be no "adequate cause" for 
 passion beyond those stated in that arti- 
 cle. If so, he was in error. Our su- 
 preme court says: "Articles 2251, 2252, 
 2253, and 2254, Paschal's Digest, are ex - 
 planatory of article 2250. We do not 
 understand that these explanations and 
 examples are legislative restrictions, and 
 that in no case can a homicide be reduced 
 from murder to manslaughter unless the 
 party can bring himself within the rules 
 and examples given. We regard the law 
 rather as giving instances or examples 
 by which the mind could be rendered in- 
 capable of cool reflection. There may be 
 other ' adequate causes ' for sudden pas- 
 sion besides those instanced in the arti- 
 cle." Westz/. State, 2 Tex. App. 460. 476. 
 What amount of injury must be Inflicied 
 to produce the "adequate cause" speci- 
 fied in the statute cannot be fixed by any 
 definite general rule, but must depend 
 upon the particular circumstances of 
 each particular case. The amount of the 
 injury is therefore a question of fact for 
 the determination of the jury, under 
 proper instructions from the court. Wil- 
 liams V. State, 7 Tex. App. 396. Cf. 
 Janes v. State, 10 Tex. App. 421. 
 
 Adequate Crossings. — But the law no- 
 where defines what constitutes the other 
 "adequate crossings" which the statute 
 authorizes, nor has it been determined, 
 so far as we can discover, by judicial 
 construction. Then, as an adequate 
 crossing is to be constructed, and such 
 crossing is not defined as matter of law, 
 it must be determined as a question of 
 fact. Gray v. Burlington, etc., R. Co., 
 37 Iowa, iig. 
 
 2. Bouvler's Law Diet. 
 
 Alluvion, whether it affects an accre- 
 tion to the shore, or whether it forms 
 islands, alters the position of the original 
 filum aqua, and it will always be located 
 by taking the middle of a line, drawn at 
 right angles from bank to bank, no matter 
 how recently the bank may be formed. 
 Miller v. Hepburn, 8 Bush (Ky.), 326; 
 Clark V. Campau, 19 Mich. 329; Knight 
 V. Wilder, 2 Cush. (Mass.) 202; Bay City 
 Gas-light Co. v. Industrial Works. 2'S 
 Mich. 182; Stolp V. Hoyt. 44 III. 220; 
 Deerfield v. Arms, 17 Pick. (Mass.) 41 . 
 Bonewits v. Wygant, 75 Ind. 41. Sec 
 also Accretion. 
 
ADHERING— AD J A CENT. 
 
 ADHERING. — The use of this word has been confined to the ex- 
 pression ■' adhering to the king's enemies, or the enemies of the 
 United Slates," in the description of the crime of treason. ^ 
 
 ADJACENT. — This word is distinguished from adjoining, inas- 
 much as it does not denote touching or contiguous to.* 
 
 The owner of property half a mile distant from a railway is not 
 an " adjacent occupant or proprietor." * 
 
 1. Adhering to the king's enemies must 
 of necessity be against the king; and, 
 therefore, if an Englishman assist the 
 French, being at war with us, and fight 
 against the king of Spain, who is an ally 
 of the king of England, this is treason, 
 as adhering to the king's enemies against 
 the king, — for the king's enemies are 
 hereby strengthened and encouraged, — 
 and so is within the express words of 25 
 Edw. III., of "adhering to the king's 
 enemies." Vaughan's Case, 2 Salkeld, 
 634. Rebels, being citizens, are not en- 
 emies within the meaning of the consti- 
 tution; hence a conviction for treason, 
 in promoting a rebellion, cannot be sus- 
 tained under that branch of the constitu- 
 tional definition which speaks of "adher- 
 ing to their enemies, giving them aid 
 and comfort." U. S. v. Greathouse, 2 
 Abbott (U. S.), 364. 
 
 2. Adjacent, strictly speaking, does 
 not mean adjoining; it means that it 
 shall be in the neighborhood, or con- 
 venient, or near to. Henderson v. Long, 
 I Cooke (Tenn.), 128. The interpreta- 
 tions given to the word "adjacent" by 
 Walker are "lying close," "bordering 
 upon something." The legislature evi- 
 dently intended to restrict the grant to the 
 owners of the lands bordering upon, or 
 adjoining the water covering the subject 
 of the proposed patent. The People v. 
 Schermerhorn, 19 Barbour, 540, 556. 
 The term "adjacent owner'' as used in 
 the act. to designate the persons entitled 
 to purchase lands under water; is not 
 limited to the owner of the land lying 
 next to it. e.g., the owner of the land be- 
 tween high and low water line, but means 
 the owner of the upland which is bounded 
 by the river. Mayor, etc., of New York 
 V. Hart. 16 Hun, 380. Under the act of 3d 
 of April, 1832. for the opening of streets, 
 etc.. in New Orleans, which provides 
 that a contribution to pay the expense 
 of opening shall be assessed on the lots 
 and premises " adjacent to" and fronting 
 that part of the street so opened, straight- 
 ened, or improved, it was held that 
 the only lots subject to assessment 
 were those to which a new front was 
 given or added to by the new street. 
 "We think." said the court, "the word 
 adjacent, applied to lots, is synonymous 
 
 190 
 
 with the word contiguous. In another 
 and more general relation, it might have 
 a more extended meaning; but in the 
 sense in which it is used — to wit, to dis- 
 criminate as to locality from other lots — 
 we can only give this meaning to it in a 
 statute like this, which undertakes to 
 divest a right of property, and is conse- 
 quently subjected to strict rules of inter- 
 pretation." Re Municipality for Opening 
 RofEgnac Street, 7 La. Ann. 76. 
 
 3. Continental Imp. Co. v. Phelps, 47 
 Mich. 299. 
 
 Hoyt, J., in the case of the U. S. v. 
 Northern Pac. R. Co., 29 Alb, L. J. 24, 
 construing the word "adjacent "in the 
 company's charter, which grants the 
 privilege of cutting timber from " adja- 
 cent " public lards for use in the con- 
 struction (if the work, held that il hrs 
 a broader meaning than "adjoining," aid 
 is synonymous with "neighboring," ai;d 
 said: "Congress, in enacting section 2 
 of defendant's charter, saw fit to use the 
 word "adjacent;' and in determining the 
 intent of this section we must investigate 
 the meaning of the word 'adjacent' as 
 there used. Sometimes it has a mean- 
 ing given it which is synonymous with 
 the word 'adjoining,' but it is as often 
 applied in a more extended sense, as in 
 the ' vicinity ' or the ' neighborhood ' of, 
 while 'adjoining' and 'contiguous' are 
 never used in such enlarged sense. Con- 
 gress, then, having selected from sev- 
 eral synonymous words the one having, 
 as applied to the subject in the section 
 in which it is used, the broadest meaning 
 and most extended signification of the 
 whole, must be held to have intended 
 the broadest rather than the more re- 
 stricted signification to be given to it in 
 the interpretation of said section, and 
 therefore to hold that this section re- 
 stricted the defendant to lands adjoining 
 or contiguous to the line of the road, 
 would be contrary to all rules of interpre- 
 tation, while if we apply the usual rules 
 we must hold that its rights are extended 
 by this section beyond lands adjoining 
 or contiguous to its line of road to lands 
 anywhere in the vicinity or neighborhood 
 of its said line of road. Was the land in 
 question in the neighborhood of defend- 
 ant's line of road, within the meaning of 
 
ADJOINING. 
 
 ADJOINING. — Contiguous, touching, in actual contact with. 
 Where two towns touch at the corners, they are adjoining. ^^ 
 
 section two ? The design of this ques- 
 tion was to allow the company to lake 
 timber from public lands to build its 
 road, and when we once concede that 
 under this section the defendant is au- 
 thorized to go beyond adjoining lands, 
 as the use of the word 'adjacent' com- 
 pels us to do, it must follow that the use 
 of the more enlarged word was for the 
 benefit of the Northern Pacific R. Co., 
 and it must be so constrijed by the court 
 as to effect the object of its enactment. 
 And we are of opinion that timber land 
 nearest to the line of the road must be 
 held to be neighboring timber land, even 
 although there may intervene large tracts 
 of land not timbered. If this be so, then 
 under the facts of these cases, as above 
 stated, the lands from which the timber 
 in question was cut was in the neighbor- 
 hood of the line of the road where it was 
 used, and therefore ' adjacent ' thereto, 
 within the meaning of section two of the 
 charter of the defendant Northern Pacific 
 R. Co. Besides, under the facts proven 
 in these cases, the lands in question 
 would probably come within a more re- 
 stricted use of the word 'adjacent,' for 
 the line of defendant's road runs for sev- 
 eral hundred miles through a country 
 almost entirely destitute of timber, and 
 the belt upon which this timber in ques- 
 tion was cut was the first timber land 
 near said road reached by it in the course 
 of its construction; therefore though this 
 timber be more than one hundred miles 
 from the line of defendant's road, we are 
 of the opinion that it must under the cir- 
 cumstances be held to be 'adjacent 
 thereto,' within the meaning of section 
 two of defendant's charter." 
 
 1 Ground cannot be properly said to 
 "adjoin" a house unless it be absolutely 
 contiguous, without anything between 
 them. Rex v. Hodges, i Moody & Malkin, 
 341. Cf. Peverelly v. People. 3 Parker C. 
 C. (N.Y.)59. These two towns in fact are 
 " next adjoining" in no other sense than 
 that of touching at the corners. Holmes 
 V. Carley, 31 N. Y. 289. The word " ad- 
 joining," in its etymological sense, means 
 touching or contiguous, as distinguished 
 from lying near or adjacent, fn the Mat- 
 ter of Ward, 52 N. Y. 395. the words 
 "along" and "adjoining" are used as 
 synonymous terms. This is manifest 
 from the immediate context, and from 
 the use of the word " along" in the same 
 connection, without the word "adjoin- 
 ing." Both words as used imply conti- 
 guity, contact. Walton o. St. Louis, etc., 
 R. Co., 67 Mo. 56. But appellants say 
 
 191 
 
 that adjoining does not mean to touch, 
 but to be near to. We are of the opinion 
 that the words " adjoining to the present 
 boundaries" as used in this charter do 
 not mean simply near to. but next to. 
 Irnax v. Pool, 46 Iowa, 256. The 
 words "adjoining to or occupied with" 
 are to be taken in connection and tend 
 to explain each other: they mean some- 
 thing more than adjacent or contiguous, 
 which they might be if there were a solid 
 wall between, or were in another occupa- 
 tion. Devoe v. Commonwealth, 3 Met- 
 calf (Mass.) 316, 327. The whole yard of 
 a house of correction, though divided by 
 a public street, against which it is suit- 
 ably fenced and protected, must be re- 
 garded as adjoining or appurtenant. 
 Com. V. Curley, loi Mass. 24. Where, by 
 agreement, a wall has been built on land 
 dividing the property of an individual 
 from that of a railway company, and the 
 individual and the company are, by 
 the same agreement, the joint owners of 
 the land, on which the wall is built, that 
 circumstance does not affect the individ- 
 ual, so as to prevent him from being con- 
 sidered an "adjoining" owner. Directors. 
 V. Blackmore, L. R. 4 Eng. & Irish App. 
 Cas. 610. Lessees of lands separated 
 from railroad land, by a private road, of 
 which they had the exclusive right of 
 user during their tenancies, held to be 
 owners of "immediately adjoining 
 land." Coventry v. London, etc., R. Co., 
 L. R. 5 Eq. Cas. 104. 
 
 Holmes v. Carley, 31 N. Y. 289. The 
 appellant owned premises separated from 
 a street by a wall five feet high, belonging, 
 together with the land on which it stood, 
 to another person. The appellant had no^ 
 direct access from his premises to the 
 street, but in order to reach it had to pass 
 for a short distance down a public foot- 
 path, or over other intervenmg land. 
 Held, that the appellant was not the 
 owner of premises " fronting, adjoinmg, 
 or abutting" on the street within the 
 meaning of s. 150 of the Public Health 
 act, 1875, and therefore was not liable to 
 contribute to the expenses of sewering 
 and paving the street under that section, 
 Lightbound v. Bebington Local Board, 
 L. R. 14 Q. B. 849. 
 
 A was the owner of three houses 
 fronting a street called York Place, and 
 adjoining or abutting at the rear upon a 
 footpath at the end of a street called 
 St. Julian St., which formed a culde-sac. 
 The ground at the back of these houses 
 was five feet above the level of St. Julian 
 St., and the wall, which was the property 
 
AD JO URN— AD JO URNMENT—ADJ UDGED. 
 
 ADJOURN— ADJOURNMENT. — These words denote a continu- 
 ance from day to day.^ 
 
 ADJUDGED.— Deemed, held, declared. Usually applied to the 
 declaration or sentence of a court.* 
 
 of A, was about twelve feet high on the 
 outside. There was no access from A's 
 premises to St. Julian St. Held, that his 
 premises "adjoined or abutted on" St. 
 Julian St., and consequently that he was 
 chargeable with his proportion of the ex- 
 penses of paving, etc., that street. New- 
 port U. S. Authority w. Graham, L. R. g 
 Q. B. 183. 
 
 The defendants claim that " adjoining'' 
 means "near;" the prosecutors that it 
 means, "touching," in coiKact with. 
 The latter is the proper signification, 
 and it is the more readily to be adopted 
 in this case, because it thus restricts the 
 grant of eminent domain, which is never 
 to be extended by unnecessary implica- 
 tion. Akers v. N. N. J. R. Co., 43 N. 
 J. Law, no. 
 
 1. An "adjournment" is a putting 
 off until another time or place. People 
 V. Martin, 5 N. Y. 2$. Where the con- 
 stitution of Arkansas provided that 
 "every order or resolution in which the 
 concurrence of both houses of the Gen- 
 eral Assembly may be necessary, except 
 on questions of adjournment, shall be 
 presented to the governor, and before it 
 shall take eflect be approved by him" 
 (art. vi. §16), it was held; "An adjourn- 
 ment," says Mr. Blackstone, "is no more 
 than a continuance of the session from 
 one day to another, as the word itself 
 signifies." The concurrent resolution 
 had for its sole object the continuance of 
 the, session from the ninth of March, 
 1881, when it would have otherwise ex- 
 pired, till the nineteenth of the same 
 month. This is clearly germane to the 
 matter of " adjournment," and the reso- 
 lution did not require the approval of the 
 governor. Traramell v. Bradley, 37 Ark. 
 
 374. 379- 
 
 Adjourned Session. — The sole question 
 in the cause is, whether the adjournment 
 from the i6th of May to the fourth Mon 
 day in June was a continuation of the 
 April term, or constituted a distinct term. 
 But an "adjourned session" is the same 
 session with that at which the adjourn- 
 ment was made. Mechanics' Bank v. 
 Withers, 6 Wheaton (U. S.), 106. 
 
 Adjourned Term. — The "adjourned 
 term," as its name manifestly imports, 
 is but a continuation of the previous 
 term; and although it is continued for the 
 trial of the causes on a particular divi- 
 sion, it by no means follows that the 
 power of 'the court over the business 
 
 which has been done, and the entries 
 made, is taken away. It is the same 
 term prolonged, and although prolonged 
 for purposes specified in the order, and 
 although the court, as a matter of jus- 
 tice to the counsel and suitors, would not 
 take up any causes not set for trial at 
 such "adjourned term," yet as its ses- 
 sion or term has not finally closed, it has 
 power over its record to make it' conform 
 to the truth, and to see that injustice is 
 not done by allowing an erroneous judg- 
 ment to stand against a party, but should, 
 as in the case before us, mero motu, va 
 cate it and set down the cause for a re 
 hearing at the regular succeeding terra. 
 If the term has not closed and the court 
 is still in session, it is not concluded by 
 its previous order, but has power to re- 
 scind it, for so long as the term continues 
 this power necessarily results. It is not 
 like the case of a special, distinct term 
 held after the regular term has been 
 brought to a final close. In such case, 
 the court would be concluded by the final 
 adjournment. Van Dyke v. State, 22 Ala. 
 57. Cf. Keen v. Queen, 10 Q. B. 927. 
 
 3. Where a judgment read, " Where- 
 upon, etc., it is considered by the court 
 here that the said Z. P. be confined and 
 imprisoned at hard labor in the State 
 prison for the term of ten years," on ob- 
 jection that he was not by the court ad- 
 judged guilty of a misdemeanor, the 
 court said: " Our statute does not require 
 such language to be introduced eithei 
 into the annunciation or record of the 
 sentence. No judgment' of the form 
 contended for can anywhere be found. 
 The word ' adjudged ' is here used by 
 the legislature, perhaps not very aptly, as 
 synonymous with 'deemed,' which lat- 
 ter word is frequently found in corre- 
 spondent places. They have so employed 
 the word ' adjudged ' in the act respect- 
 ing lotteries. Rev. Laws 272, § i; All 
 lotteries shall be and are hereby ad- 
 judged to be common and public nui- 
 sances." State V. Price, 11 N. J. Law, 
 203, 217. Where a statute disqualifies as 
 a witness any person who " shall, upon 
 conviction, be adjudged guilty of per- 
 jury," a person is not rendered incompc 
 tent until by judgment sentence has been 
 pronounced upon him; a verdict of guilty 
 alone is not sufficient. In this case 
 the court said: "The learned coun- 
 sel for the plaintiff in error contends 
 that there is no difference in meaning 
 
 193 
 
ADMINISTRA TICN—A DMIRAL T Y. 
 
 ADMINISTRATION.— The management and settlement of the 
 estate of a deceased person who has left no executor. 
 ADMEASUREMENT OE DOWER. See DowER. 
 ADMINISTRATOR. See EXECUTORS AND Administrators. 
 
 ADMIRALTY. See Shipping. 
 
 1. History. 
 
 2. Jurisdiction of Colonial Courts. 
 
 3. Of U. S. Courts. 
 
 4. Over what Waters it extends. 
 
 5. Over Torts as affected by 
 
 Place. 
 
 6. Over Internal Commerce. 
 7 Over Foreign Waters. 
 
 8. What Persons within. 
 
 9. What Vessels within. 
 lo. Over Bridges, etc. . 
 
 1 1 . General Scope of Jurisdiction. 
 
 1 2. Contracts within Jurisdiction. 
 
 13. Contracts not Maritime'. 
 
 14. Torts within Jurisdiction. 
 
 15. Prize Causes. 
 
 16. Jurisdiction Exclusive. 
 I/*. Maritime Lien. 
 
 18. Courts hq.ving Jurisdiction. 
 
 19. Procedure in Admiralty. 
 
 20. Actions in rent. 
 
 2 1 . Actions in personam. 
 
 22. Joinder of Actions. 
 
 23. Pleadings. 
 
 24. Set-off and Recoupment. 
 
 25. Action Pending. 
 
 26. Evidence. 
 
 27. Trial 
 
 28. Decree. 
 
 29. Restraint of Lower Court. 
 
 1. History. — The general method of admiralty procedure con- 
 forms rather to the civil than to the common law ; hence it has 
 been supposed that the admiralty jurisprudence of England, like 
 
 between the words ' deemed ' and ' ad- 
 judged ' used in the penal enactments of 
 the revised statutes, and urges that the 
 word ' adjudged ' in the section under 
 consideration should be read a; if written 
 ' deemed.' It is, perhaps, enough to say 
 that it, in fact, reads 'adjudged,' and 
 [hat whatever difference there is between 
 the two terms is in favor of our inter- 
 pretation of the statute. Moreover, the 
 phrase 'deemed' is not in its meaning, 
 when used in legislative expression, so 
 much more favorable to the plaintiff in 
 error as to turn us from our view of the 
 question. To 'damn' or 'condemn' 
 is ■ to deem, think, or judge any one to 
 be guilty, to be criminal, to give judg- 
 ment, or sentence, or doom of guilt; to 
 adjudge, or declare the penalty or pun- 
 ishment.' (Rich. Diet, in voce Damn.) 
 And ' judge not, that ye be not judged ' 
 of our New Testament is ' Nyle ye 
 deme, that ghe be not demed' of Wiclifle." 
 Blaufus V. People, 69 N. Y. 107. Where 
 the condition of a bond was that it should 
 be void " if the defendant pay all sums 
 of money, damages, and cost that should 
 be adjudged against him if the injunc- 
 tion should be dissolved," when the in- 
 junction was dissolved it was held, " It is 
 clear that, within the terms of the condi- 
 tion of this bond, the amount of the judg- 
 ment at law was not ' adjudged' against 
 the defendant upon the dissolution 
 of the injunctionj" Corder v. Mar- 
 tin, 17 Mo. 41. I think that the 
 
 " sum adjudged " means the sum in re- 
 spect of which the order of adjudication 
 is made. In re Ricardo v. Board of 
 Health, 2 Hurl. & H. 256, 264. 
 
 1. In Statute. — Grossman v. Crary, 37 
 Iowa, 684: "The word 'administration ' 
 means, as here used [in statute declar- 
 ing administration shall not be originally 
 granted after five years], the management 
 of the. estate of a decedent, and ex- 
 presses the jurisdiction assumed by the 
 proper probate court over it. This ju- 
 risdiction is assumed by the appointment 
 of the administrator; when that is done 
 administration is said to have been 
 granted. It does not refer simply to the 
 act of appointment of the administra- 
 tion, although that act is included in the 
 thought expressed for ' administration ;' 
 management of the estate is assumed by 
 the appointment." 
 
 Expenses of, in Statute. — Lester et al. 
 V. Mathews, 56 Ga. 655: "Plaintiff further 
 alleges that the consent verdict, and 
 which sets out the fees to be paid to pro- 
 pounder's counsel, after 'expenses of 
 administration,' meant by the expres- 
 sion ' expenses of administration ' the 
 fee of plaintiff and his associates — in law, 
 a fee to resist by the heirs-at-law the set- 
 tling up of a will: and if the words do not 
 bear that signification in law, it asserts 
 that the parties to the consent verdict so 
 meant. . , . We do not think such a 
 fee embraced in the meaning of those 
 words." 
 
 193 
 
Jurisdiction. ADMIRALTY. Colonial and U. S. Courts. 
 
 that of the ecclesiastical courts, was originally an importation from 
 the Latinized countries of the Continent, ^ and the exact time of its 
 introduction has been fixed at the reign of Edward III.* 
 
 Later writers have asserted a more ancient origin for the Eng- 
 lish courts of admiralty, making them coeval with the tribunals 
 of the common law, and originally cognizant of all litigated mat 
 ters related to the sea.^ But, however ancient and originally ex- 
 tensive this jurisdiction was, at and for a long time before the 
 American Revolution the English admiralty was an inferior court 
 not of record,* having a very limited jurisdiction,*' and subject to 
 humiliating correction by writ of prohibition issuing out of the 
 King's Bench. 
 
 2. Jurisdiction of Colonial Courts. — The courts of vice-admiralty 
 which existed in all the American colonies, administered by dep- 
 uties of the governor or proprietary, under royal patent, exercised 
 without hindrance a jurisdiction as wide as any writer has ever 
 claimed for the ancient English admiralty.® 
 
 3. Jurisdiction of Courts of the United States. — Article 3, § 2 of the 
 United States Constitution confers upon the courts of the United 
 States cognizance "of all cases of admiralty and maritime juris- 
 diction." 
 
 Under this grant of the organic law it is now well settled that 
 " the jurisdiction in admiralty conferred by the Constitution on 
 the Federal courts is that jurisdiction which had been and was 
 being exercised in admiralty in this country prior to and at the 
 time of the adoption of the Constitution, and not thie jurisdiction 
 of England nor that of Continental Europe." ' 
 
 4. Jurisdiction, over what Waters it Extends. — It has never been 
 
 1. I Black Com. 80 et seq. 1. Per Billings, D. J., in Cope v. Val- 
 
 2, 3 Black Com. 69. lette Dry Dock, lo Fed. Repr. 142, citing 
 8. Benedict's Admiralty, ch. v. Insurance Co. v. Dunham, 11 Wall. (U. 
 4. 3 Black Com. 69. S.) I, and Ex parte Easton, 95 U. S. 68. 
 6. See Benedict's Adm. 60, for an enu- This view of the admiralty jurisdiction of 
 
 meration of the subjects of English ad- the United States has not obtained with- 
 
 miralty jurisdiction, and id. ch. vi. for out mu<:h opposition. Story, J., pro- 
 
 a history of the quarrel between the courts pounded it in his celebrated judgment in 
 
 of common law and admiralty, resulting De Lovio v. Boit, 2 Gall. (U. S ) 398 
 
 in the victory of the former and the cur- (1815): but many judges wished to assim- 
 
 tailment of the jurisdiction of the latter, ilate the U. S. courts of admiralty to 
 
 tempore James I. and Charles I. those of Great Britain. See The Thos. 
 
 6. "The commissions of the vice-ad- Jefferson, 10 Wheat. (U. S.) 428; Ramsey 
 mirals in the colonies in North America, v. Allegre, 12 Wheat. (U. S.) 611; Steam- 
 insular and continental, contained a much boat Orleans w. Phoebus, 11 Pet. (U. S.) 
 larger jurisdiction than existed in Eng- 175; Peyroux v. Howard, 7 Pet. (U. S.) 
 land when they were granted." Waring 324. Judge Story's views, however, 
 V. Clarke, 5 How. p. 454. have triumphed, until the latest authority 
 
 See in Benedict's Adm. 69 the text of a can assert that-the admiralty system of 
 
 commission granting Vice-Admiral Lord the United States embraces "the water- 
 
 Cornbury jurisdiction in " all civil and borne commerce of the United States 
 
 maritime causes and . . . business civil conducted on its internal navigable wa- 
 
 and maritime whatsoever," arising in ters as well as on the high seas, and has 
 
 " the maritime parts whatsoever" of New grown to include all maritime services 
 
 York, New Jersey, and Connecticut, and contracts, and all injuries when in- 
 
 This is a larger power than any English flicted upon such waters." Henry on 
 
 judge dared to claim at that time (1701). Jurisdiction and Procedure, p. vi. 
 
 194 
 
Jurisdiction, Waters, Etc. ADMIRALTY. Jurisdiction, Internal Commerce. 
 
 doubted but that admiralty has jurisdiction over the high seas,* 
 which begin at low-water mark.'^ 
 
 The Federal courts early declared their jurisdiction to extend 
 over waters within the body of a county^ having any tidal 
 movement, however slight.* 
 
 The act of 1845 ^ purported to extend admiralty jurisdiction 
 to certain cases arising on the " lakes and navigable waters con- 
 necting said lakes," and this statute has been held constitutional 
 as a regulation of the powers of district courts sitting in admi- 
 ralty ; but if regarded as an attempt to confer a new jurisdiction, 
 unconstitutional, — jurisdiction in all admiralty and maritime causes 
 having been given to the U. S. courts by the Constitution itself, 
 so that the legislature cannot lawfully diminish such jurisdiction, 
 and naturally cannot enlarge it.* 
 
 By the case last cited, and numerous subsequent decisions, the 
 Supreme Court of the United States has now established the 
 doctrine that the constitutional grant extends admiralty jurisdic- 
 tion not only over waters affected by the ebb and flow of the tide, 
 but over all the navigable waters of the nation, and " wherever 
 ships float and navigation successfully aids commerce, whether in- 
 ternal or external.'"'' Canals are navigable waters within this 
 rule.* 
 
 5. Jurisdiction over Torts as affected by Place. — To give admiralty 
 jurisdiction in cases of tort, the wrong complained of must have 
 occurred on the water ; that the cause originated on the water is not 
 enough if the damage actually occurred on shore.' But matters 
 on land incidental to maritime occurrences are within the jurisdic- 
 tion. i" 
 
 6. Jurisdiction over Internal Commerce. — It was at one time sup- 
 posed that matters arising upon voyages between ports of the 
 
 1. The Thomas Jefferson, 10 Wheat. 6. The Genesee Chief, 12 How. (U. 
 <U. S.)428. S.) 443, overruling The Thomas Jeffer- 
 
 2. De Lovio v. Boit, 2 Gall. (U. S.) son, 10 Wheat. (U. S.) 428; Steamboat 
 398; U. S. V. Hamilton, I Mass. 152. Orleans v. Phoebus, 11 Pet. (U. S.) 
 Long Island Sound is a part of the high 175. 
 
 seas. The Martha Anne, Olc. (U. S.) 18. 7. The Hine v. Trevor, 4 Wall. (U. 
 
 So also is the mouth of a tidal river a S.) 555; Fretz v. Bull, 12 How. (U. S.) 
 
 mile and a half wide. U. S. v. Smith, 3 466; The Magnolia, 20 How. (U. S.) 295; 
 
 Wash. (U. S.)78. In criminal statutes, The Moses Taylor, 4 Wall. (U. S.) 411; 
 
 however, the phrase is used in contra- The Commerce, i Black (U. S.). 574; 
 
 distinction to landlocked ports, bays, and The Daniel Ball, 10 Wall. (U. S.) 
 
 harbors, which, though subject to tidal 557. 
 
 ebb and flow, are within the jurisdiction 8. The Avon, i Brown Adm. 170 ; 
 
 of the governments of the surrounding The Oler, 2 Hughes (U. S.), 12; Ex 
 
 countries. U. S. w.Wiltberger, 5 Wheat, parte Boyer, 109 U. S. 629. 
 
 (U. S.) 76; U. S. T). Wilson, 3 Blatchf. 9. The Plymouth, 3 Wall. (U. S.) 20; 
 
 (U. S.)435; U. S. v. Crush, 5 Mass. 290. The Maud Webster, 8 Bend. (U. S.) 547. 
 
 3. Waring ». Clarke,5 How. (U.S.)44i. Thus, an injury done to one standing on 
 
 4. Peyroux v. Howard, 11 Pet. (U. a wharf by a bale of cotton falling upon 
 S.) 324. him from a ship's tackle alongside can- 
 
 5. 5 U. S. Stat, at Large, 726. As not be redressed in admiralty. The Mary 
 embodied in Rev. Stat. §566, the portions Stewart, 10 Fed. Repr. 137. 
 
 of the act obnoxious to the decisions 10. Moxon v. The Fanny, 2 Pet. 
 infra are omitted. Adm. 309. 
 
 195 
 
Jurisdiction, Foreign Waters. ADMIRALTY. Persons, etc, Within- 
 
 same State were not within the Federal admiralty jurisdiction,* 
 but the contrary is now well settled.* 
 
 7. Jurisdiction over Foreign Waters. — Whenever the suit itself 
 naturally falls within the admiralty jurisdiction, that the matters 
 complained of occurred in foreign waters is immaterial.^ 
 
 S.-Jurisdiction What Persons within. — Jurisdiction does not depend 
 on the citizenship of the parties,* and though courts are not bound 
 to adjudicate litigations between foreigners,^ they may lawfully 
 do so,^ and are bound to finally decide a controversy under which 
 rights have already been acquired.'' Such suits are usually en- 
 tertained,** but libels by foreign seamen for wages against ships 
 of their own nationality are discouraged ;* yet completion or 
 abandonment of voyage by the vessel, and wrongful discharge or 
 maltreatment of the sailors will always induce the court to ad- 
 judicate their claims,*" unless debarred by treaty.** ' 
 
 9. Jurisdiction — What Vessels within. — All ships or vessels are 
 prima facie subject to the jurisdiction of admiralty; but ships of 
 war belonging to a foreign friendly nation are not subject to seizure 
 by the admiralty courts of the United States,** and vessels belong- 
 ing to and engaged in the service of a city government have the 
 same immunity.** 
 
 Barges,** canal-boats,*' lighters and scows,*® a floating eleva- 
 tor,*'^ and a wharf-boat** are all vessels for purposes of jurisdic- 
 tion ; a log-raft,** a floating saloon,*" and a dry-dock** are not. 
 
 10. Jurisdiction over Bridges, etc. — Since there can be no maritime 
 lien upon things not engaged in navigation, admiralty cannot e-n- 
 tertain a suit to recover damages for the wrongful obstruction of 
 navigation by a bridge ;** and the converse is equally true that i» 
 
 1. Vide the dictum of Nelson, J., in to the consul of the ship's country for re- 
 Moore V. American Transportation Co., dress. 
 
 24 How. (U. S.) 6, and compare N. J. 10. The Herwine, 3 Sawy. (U. S.) 80; 
 
 Steam Navigation Co. v. Merchants' The Lilian M. Vigus, 10 Bend. (U. S.> 
 
 Bank, 6 How. (U. S.) 344; Maguire v. 385. 
 
 Card, 21 How. (U. S.) 249. 11. The Elwine Kreplin, g Blatchf. (U. 
 
 2. The Commerce, i Black (U. S.), S.) 438. 
 
 574; The Belfast, 7 Wall. (U. S.) 624; 12. Long v. The Tampico and Pro- 
 
 Langley v. The Syracuse, 6 Blatchf. (U. gresso, 16 Fed. Repr. 491. This rule is 
 
 S.) 2; The Elmira Shepherd, 8 Blatchf. one of general international law. The 
 
 (U. S.l 341. Constitution, L. R. 4' P. D. 39. 
 
 3. The Sailor's Bride, Bro. Adn;. 68; 13. The Fidelity, 16 Blatchf. (U. S.) 
 The Champion, Bro. Adm. 520; The 596. 
 
 Diana, I Lush. 539; The Courier, i 14. The Dick Keyes, i Biss. (U. S.) 
 
 Lush. 541; The Greifswald, Swab. 430. 408. 
 
 4. Peyroux v. Howard, 7 Pet. (U. S.) 15. The Kate Tremaine, 5 Bend. (U. 
 324. S.) 60. 
 
 6. Thomassen v. Whitwill, 9 Bend (U. 16. The General Cass.i Bro. Adm. 337. 
 S.) 113; The Carolina, 14 Fed. Repr. 424. 17. The Alabama, 22 Fed. Repr. 449 
 
 6. The Sailor's Bride, Bro. Adm. 68. 18. The Old Natchez.9Fed. Repr. 476. 
 
 7. Covert J/. Wexford, sFed. Repr. 577. 19. A Raft of Cypress Logs, i Flippin 
 
 8. The Belgenland, 114 U. S. 355; (U. S.), 543. 
 
 The Maggie Hammond, 9 Wall. (U. S.) 30. The Hendrik Hudson, 3 Bend. 419-. 
 435; The Russia, 3 Bend. (U. S.) 471. 21. Cope v. Vallette Dry-dock, 10 Fed. 
 
 9. Fry v. Cook, 14 Fed. Repr. 424; Repr. 142. 
 
 The Bucherdass Ambaidass, i Low. (U. 22. The Rock Islaad Bridge, 6 Wall 
 S.) 569. Ordinarily seamen should apply (U. S.) 213. 
 
 196 
 
Jurisdiction, Scope of. ADMIRALTY. Contracts. 
 
 admiralty the owners of a bridge cannot recover for injuries done 
 their property by the negligent navigation of a passing vessel.^ 
 The same rule applies to injuries to and by wharves,* dry-docks,^ 
 buildings on piers,* and marine railways.^ 
 
 11. General Scope. of Jurisdiction. — The subjects of admiralty ju- 
 risdiction are " maritime contracts and maritime torts, including 
 captures jure belli, and seizures on water for municipal and rev- 
 enue forfeitures. Contracts, claims, or services purely maritime, 
 and touching rights and duties appertaining to commerce and 
 navigation, are cognizable in the admiralty, and so also are torts or 
 injuries of a civil nature committed on navigable waters."® 
 
 The test of jurisdiction in tort is locality, and what waters and 
 places are within it has been already shown.* 
 
 As to contracts, the criterion is their nature and subject-mat- 
 ter ; and if they refer to maritime services, transactions, or casu- 
 alties, they are within admiralty jurisdiction, without regard to the 
 place where they are made or are to be performed.** 
 
 Jurisdiction is not lost by losing possession of a thing seized ;' 
 it extends to the distribution of things sold under judicial de- 
 cree,i* and assets so distributed can be marshalled as in equity i^-^ 
 and all matters incidental to a controversy are within the jurisdic- 
 tion whenever the principal point is within it.^* 
 
 12. Contracts within Jurisdiction. — That all " contracts, claims, and 
 services essentially maritime"^* are proper subjects for admiralty 
 has always been admitted ; but the rule is often difficult of appli- 
 cation, and a study of the decisions in which jurisdiction over 
 particular cases has been granted or denied is the only reliance 
 in practice. 
 
 Average contribution is maritime in its nature, and therefore 
 enforceable in admiralty i^* but a personal action by shipowners 
 against the consignees of cargo already delivered, for their con- 
 tributive share, cannot be sustained. ^^ 
 
 1. The Neil Cochran, I Bro. Adm. 162. be seeking to enforce a maritime lien. 
 
 2. The Ottawa, I Bro. Adm. 356; The breach of any maritim'e contract is 
 C. Accame, 20 Fed. Repr. 642. enough to confer jurisdiction. Maury 
 
 3. Cope V. Vallette Dry-dock, 10 Fed. v. Culliford, 10 Fed. Repr. 388. 
 
 Repr. 142. 9. U. S. v. The Little Charles, i Brock. 
 
 4. The Plymouth, 32 Wall. (U. S.) 20. Marsh. (U. S). 347. 
 
 5. The Professor Morse, 23 Fed. Repr. 10. Osborn o. U. S., 91 iJ. S. 474; An- 
 803. drews v. Wall, 3 How. (U. S.) 568. 
 
 Where the injury complained of is done 11. The Edith, 94 U. S. 518. 
 by a floating vessel, it would seem to be 12. Davison v. Sealskins, 2 Paine 
 
 strictly a maritime tort, cognizable in ad- (U. S.), 324, where goods seized and sold 
 
 miralty; but the rule is well established, by pirates were recovered in admiralty, 
 
 at least in the circuits. Vide The Arkan- though retaken on land, 
 sas, 17 Fed. Repr. 383, and Henry on 13. Ex f arte Easton, 9J U. S. 68. 
 Jurisdiction and Procedure, 69. 14. Dike v. The St. Joseph, 6 McLean 
 
 6. Per Clifford, J., in The Belfast, 7 (U. S.). 573. 
 
 Wall. (U. S.) 637. 15. Cutler 7/. Rae, 7 How. (U. S.) 729; 
 
 1. The Genesee Chief, 12 How. (U. but the circuit courts have ventured to 
 
 S.) 443, and §§ 4-7, supra. think this case overruled by Insurance 
 
 8. Insurance Co. v. Dunham, 11 Wall. Co. v. Dunham, 11 Wall. (U. S.) i. Vide 
 
 (U. S.) I. Bark San Fernando v. Jackson, 12 Fed. 
 
 It is not necessary that libellant should Repr. 341, 
 
 "l C. of L.— 14 197 
 
Contracts, Maritime. 
 
 ADMIRALTY. 
 
 Contracts not Karitime. 
 
 Bounties for sea services are distributable by admiralty courts* 
 and proceedings to limit shipowners' liability under the act of 
 1851 are cognizable by them.* 
 
 The following contracts have been expressly decided to be 
 maritime in their nature : An agreement to share salvage mon- 
 eys,^ or pay seamen's wages;* contracts for freight,^ pilotage,* 
 wharfage, '^ salvage,** towage,' passage, *" dockage,* 1 ransom,*'-* 
 lockage,** insurance,** repairs and supplies,*^ measuring cargo,*** 
 removing ballast,*'^ stevedoring,*** and cooperage of cargo.** 
 
 Bottomry bonds,**" and charter parties,** whether under seal or 
 not,'^* are to be sued on in admiralty, and money loaned on 
 the credit of the ship may be recovered therein, whether the loan 
 is evidenced by writing or not.** Forfeitures of vessels** and 
 penalties*^ incurred by their owners are within the jurisdiction, 
 and so also are suits to establish title to or recover possession of 
 vessels,**" and disputes between part owners as to the disposition 
 of the common property.*'' 
 
 13. Contracts not Maritime. — It is well settled that admiralty 
 has no jurisdiction over contracts for building vessels,** nor fur- 
 nishing labor,** and materials*** towards their construction, nor 
 storing on land even such aids to navigation as sails.** 
 
 Partnership accounts, though arising out of the ocean carrying 
 
 1. The Lucy Anne, 3 Ware (U. S.), 
 253; vide 12 Op. Atty.-Gen. 314. 
 
 2. Norwich Co. v. Wright, 13 Wall. 
 (U. S.) 104; Rev. Stat. U. S. §§ 4282-7; 
 Sup. Ct. Rules in Adm. 54. 
 
 3. Andrews w. Wall, 3 How.(U. S.) 568. 
 
 4. Sheppard v. Taylor, 5 Pet. Adm. 
 
 675- 
 
 5. Lands v. A Cargo of Coal, 4 Fed. 
 Repr. 478. 
 
 6. Gottfried v. Miller, 104 U. S. 521. 
 
 7. Kx parte Easton, 95 U. S. 68. 
 
 8. Houseman v. The Nbrth Carolina, 
 15 Pet. (U. S.) 40. 
 
 9." The May Queen, Sprague (U. S,), 
 588. 
 
 10. The Pacific, i Blatchf. (U. S.) 569. 
 
 11. The Vidal Sala, 12 Fed. Repr. 
 207. 
 
 13. Maisonnaire v. Keating, 2 Gall. 
 (U. S.) 325. 
 
 13. The Steamboat Bob Connell, i 
 Fed. Repr. 218. 
 
 14. Insurance Co. v. Dunham, 11 Wall. 
 (U.S.) I. 
 
 15. The General Smith, 4 Wheat.(U. S.) 
 4SS; The Virgin w. Vyfhuis,8 Pet. (U. S.) 
 
 538 
 
 16 Constantine v. Schooner River 
 Qiupn. 2 Fed. Repr. 731. 
 
 17 Roberts v. Bark Windermere, 2 
 Feil. Repr. 722. 
 
 \% The Canada. 7 Fed. Repr. 119; 
 The Senator, 21 Fed. Repr. 191; The 
 
 Velox, 21 Fed. Repr. 479. There are, 
 however, decisions the other way. Paul 
 V. The Ilex, 2 Wood (U. S.), 229. Ap- 
 proved in The Ole Oleson, 20 Fed. 
 Repr. 384, where see a review of cases 
 turning on the question what services 
 are maritime. 
 
 19. Hubbard v. Roach, 2 Fed. Repr. 
 393- 
 
 20. The Draco, 2 Sumn. (U. S.) 157. 
 
 21. The Fifeshire, 11 Fed. Repr. 743. 
 
 22. Drinkwater v. The Spartan, i 
 Ware (U. S.), 145. 
 
 23. TheJ. R. Hoyle,4Biss.(U. S.) 234. 
 
 24. U. S. V. The Sally, 2 Cranch, 406. 
 
 25. U. S. V. The Queen, 11 Blatchf. 
 (U. S.) 416. 
 
 26. Ward v. Peck, 18 How. (U. S.) 
 267. 
 
 27. The Seneca, 3 Wall. Jr. (U. S.) 385. 
 But the limits of this power are still un- 
 certain, and it cannot be said to extend 
 to a sale of the vessel and distribution of 
 the proceeds among the disputing own- 
 ers. Cf. Tunno v. The Betsina, 5 Am. 
 L. Reg. 406; Lewis v. Kinney, 5 Dill. 
 (U. S.) 159; Coyne v. Caples, 8 Fed. 
 Repr. 638. 
 
 28. People's Ferry Co. v. Beers, 20 
 How. (U. S.) 393. 
 
 29. Bradley v. BoUes, Abb. Adm. 569. 
 
 30. Edwards v. Elliott, 21 Wall. (U. S.) 
 532. 
 
 31. Gilbert v. Roach, 2 Fed. Repr. 393. 
 
 198 
 
Torts. ADMIRALTY. Torts within Jurisdiction. 
 
 trade,! q^ relating to rights of part owners in their ships,** cannot 
 be settled in admiralty, that court having no chancery powers.^ 
 
 Admiralty cannot enforce mortgages or pledges of vessels, these 
 being purely land contracts.* 
 
 The maritime character of a contract sometimes depends on 
 the place where it is executed, for though agreements for repairs 
 and supplies are ordinarily enforceable in admiralty,^ if the repairs 
 are made or supplies furnished at the home port of the vessel — 
 that is, at the place where her owners, or, if more than ore, her 
 managing owner, resides,^ — they are classed with contracts for 
 construction ;'' and an endeavor has been made to extend the 
 same rule to the work of unloading cargo at the home port.* 
 
 14. Torts within Jurisdiction. — The term " tort," when used in ref- 
 erence to admiralty jurisdiction, is not " confined to wrongs or in- 
 juries committed by direct force, but includes wrongs suffered in 
 consequence of the negligence or malfeasance of others, where the 
 remedy at common law is by an action on the case."* 
 
 The test of jurisdiction has been already shown to be the place 
 of committing the tort, whether upon navigable waters or not.^" 
 
 The tort, however, to be maritime must be done by a vessel, 
 i.e., by those or some of those in charge of her, in their represent- 
 ative capacity as agents and servants of the owners. To call an 
 assault by one passenger upon another a maritime tort because 
 occurring on the deck of a ship is obviously absurd. 
 
 But when the act complained of was done by the agents of the 
 owners, and as such agents, the jurisdiction is undoubted, and has 
 been even held to include such apparently malicious acts as the 
 abduction of a child by the master," the wrongful taking of cargo 
 not destined for the ship,^** and wilful refusal to give a bill of lad- 
 ing for goods on board. ^^ 
 
 It is now settled that an action for negligence resulting in death 
 may be brought in admiralty by the persons entitled to sue under 
 the statute prevailing at the place of the accident ;!* after much 
 conflict of opinion the supreme court have now held that in the 
 
 1. Vandewater v. Mills, 19 How. sive evidence. The Martha Washington, 
 (U. S.)82. I Cliff. (U. S.)463; The Mary Chilton, 
 
 2. Kellum v. Emerson, 2 Curt. (U. S.) 4 Fed. Repr. 847; The Norman, 6 Fed. 
 7g; The Orleans v. Phoebus, 11 Pet. Repr. 406 ; The Plymouth Rock, 13 
 (U. S.) 17s; Grant v. Poillon, 20 How. Blatchf. (U. S.) 565. 
 
 (U. S.) 162; Ward v. Thompson, 22 How. 7. The General Smith, 4 Wheat. (U, S.) 
 
 (u. s.) 330- 438. 
 
 3. Dean v. Bates, 2 Wood. & M. 8. The E. A. Barnard, 2 Fed. Repr. 
 (U. S.) 87. 712. 
 
 4. The John Jay, 17 How. (U. S.)3g9; 9. Leathers v. Blessing, 105 U. S. 360. 
 The Emily Souder, 17 Wall. (U. S.) 666. 10. Vide ante, §§ 4, 5, and 11. 
 
 5. Vide % 12, ante. 11. Steele v. Thacher, Ware (U. S.), 
 
 6. Rev. Stat. § 4141; St. Louis v. The gi; The Yankee v. Gallagher, McAU (U. 
 Ferry Co., 1 1 Wall. (U.S.) 423; Morgan ». S.), 467; Tillmore v. Moore, 4 Fed. 
 Parham,i6 Wall. (U. S.) 471. What is the Repr. 231.' 
 
 home port is always a question of fact, 12. The Dauntless, 7 Fed. Repr. 366. 
 towards the decision of which the vessel's 13. The Markee, 14 F'ed. Repr. 112. 
 registry and port of hail as painted on 14. Steamboat Co. v. Chase. 16 Wall, 
 her stern are persuasive but not conclu- (U.S.) 522; Sherlock v. Ailing, g3 U.S. gg- 
 
 199 
 
Jurisdiction Exclusive. ADMIRALTY. Maritime Lien. 
 
 absence of State or national legislation no such action will lie in 
 admiralty where the negligence occurred on the high seas.^ 
 
 15. Prize Causes. — Prize money is recoverable in admiralty,'-* 
 whether the prize was taken on the high seas or in port;* and, in 
 •general, all cases of prize are within the jurisdiction conferred by 
 ■constitutional grant.* 
 
 16. Jurisdiction Exclusive. — No State court can exercise jurisdic- 
 tion in rem upon any maritime contract or tort, even if the right 
 to the process in rem has been conferred by a State statute ;^ but 
 under the judiciary acts of the United States,* which " save the 
 right of a common-law remedy where the common law is com- 
 petent to give it," any suitor may proceed either in personam in 
 the admiralty, or bring an ordinary suit in any court that is open 
 to him.'' That a cause, therefore, may be promoted in admiralty 
 does not prove that it must be brought there, unless it is desired 
 to begin by process in rem.^ 
 
 17. The Maritime Lien. — Another test of jurisdiction is the 
 existence or absence of the maritime lien, which is a right or 
 privilege in a vessel or cargo to be carried into effect by legal 
 process." It arises both out of contracts on behalf of vessel and 
 cargo, and torts done by a vessel, which, in this regard, is treated 
 as a sentient being, endowed with a personality capable of being 
 called to account for injuries inflicted by it.^** 
 
 Wherever a maritime lien exists, admiralty will enforce it by 
 process, in rem, i.e., seizure of the thing upon which the lien exists, 
 and it is the only court that can do so." 
 
 18. Courts having Jurisdiction. — By Rev. Stat. U. S. § 563, ex- 
 clusive original jurisdiction in admiralty is given to the various 
 district courts of the United States, except where it shall in special 
 cases be conferred by statute on the circuit courts.^* This law 
 
 1. The Harrisburg, 119 U. S. 199, re- 558; The Moses Taylor, 4 Wall. (U. S.) 
 
 versing 15 Fed. Repr. 6io. But even in 411. But where the contract is not 
 
 this> latest decision the court have not maritime, as for shipbuilding, the Stale 
 
 signified their opinion of the doctrine of courts may by State statute exercise what 
 
 The E. B. Ward, Jr., 17 Fed. Repr. 456, is practically jurisdiction in rem. Ed- 
 
 and McDonald v. Mallory, 77 N. Y. 546, wards '«<. Elliott, 21 Wall. (U. S.) 532; 
 
 viz., tha:t for the purposes of this juris- Scull v. Shakespear, 77 Pa. St. 297; af- 
 
 diction a ship remains a portion of the firmed in U. S. S. C, not reported, 
 soil of her home State, and therefore sub- 6. Rev. Stat. U. S., §§ 563 and 711. 
 ject to State statutes. On this point the 7. Leon v. Galceran, n Wall. (U. S.) 
 
 ruling of the court decides nothing more 185; Schoonmaker v. Gilmore, 102 U. S. 
 
 than that if a suit in rem can be main- 118. 
 
 tained under a State statute for death re- 8. Steamboat Co. v. Chase, 16 Wall, 
 
 suiting from negligence on the high seas, (U. S.) 522. 
 
 the State statute of limitations also ap- 9. The Nestor, i Sumn. (U. S) 73; 
 
 plies', and unless process issues within The City of Mecca, L. R. 6 P. D. 106. 
 the period prescribed by such statute the 10. The China, 7 Wall. (U. S.) 53. For 
 
 suit is barred. particular cases creating maritime liens, 
 
 2 Keane v. The Gloucester, 2 Dall. vide Shipping. 
 (U. S.) 36. 11. Vandewater v. Mills, 19 How. (U. 
 
 3. The Emulous, i Gall. (U. S.) 563. S.) 82. 
 
 4. The Prize Cases, 2 Black (U. S.), 12. U. S. R. S. § 71 gives the circuit 
 635. court concurrent jurisdiction in seizures 
 
 6. The Lottawanna, 21 Wall. (U. S.) for slave-trading, and § 5308 in condem- 
 
 200 
 
Procedure. ADMIRALTY. Actions in Eem. 
 
 effectually prevents any foreign power,* or any State, or any other 
 Federal court assuming to dispose of an admiralty suit ;* but 
 territorial courts may, by authority of the local legislature, exer- 
 cise admiralty jurisdiction.^ 
 
 If the amount involved, exclusive of costs, exceeds $50, an ap- 
 peal lies from the district to the circuit court;* and if, in like 
 manner, it exceeds $5000, to the Supreme Court of the United 
 States.** 
 
 The time and manner of appealing to the circuit court are regu- 
 lated by the rules in admiralty of the supreme court* and the 
 various district and circuit courts. 
 
 An appeal to the supreme court, to become a supersedeas, must 
 . be taken within sixty days from the final decree, and at all events 
 within two years.'' 
 
 19. Procedure in Admiralty. — The admiralty courts of the United 
 States, subject to the Federal statutes** and the rules prescribed 
 from time to time by the supreme court, administer justice ac- 
 cording to the general procedure of admiralty in all civilized 
 countries, though more especially in accordance with the forms 
 handed down to us by the English maritime courts.* 
 
 This procedure by libel, or petition and answer, resembles rather 
 the civil law than any other, is administered in even a more liberal 
 spirit than a court of equity,*" and permits amendments in the dis- 
 cretion of the court at any time.** The great and distinguishing 
 feature of admiralty jurisprudence is that wherever a maritime 
 privilege or lien attaches to a vessel or cargo, or both, there by an 
 action in rem such vessel or cargo is impleaded and made the de- 
 fendant,** and the person opposing the libellant can only become 
 technically the "claimant," and be permitted to take his property 
 out of custody and contest the cause by giving a bond or stipula- 
 tion- which shall represent the thing defendant.*^ 
 
 Actions in personam are those in which an individual is charged 
 personally in respect to some matter of admiralty and maritime 
 jurisdiction.** All actions must belong to one of these two classes. 
 
 20. Actions in Rem. — The process by which such actions are 
 begun commands a seizure of the res. Its allowance is a judicial 
 act,*^ but in the United States is regulated by supreme court 
 
 nations of property used by persons in 6. Rules 45-46. 
 
 insurrection. 7. U. S. Rev. Stat. §§ 1007-8; Rodd w. 
 
 1. Glass?/. The Betsey, 3 Dall.(U.S.)6. Heartt, 17 Wall. (U. S.) 354; Rubber Co. 
 
 2. The Hine v. Trevor, 4 Wall. (U. S.) v. Goodyear, 6 Wall. (U. S.) 153. 
 555- 8. U. S. Rev. Stat. §§ 911-913. 
 
 But an "admiralty suit" is one brought 9. Manrow. Almeida, 10 Wheat. (U.S.) 
 
 not only upon a maritime contract or 473. 
 
 tort, but under admiralty procedure; any 10. Richmond v. New Bedford Copper 
 
 one content with the "common-law reme- Co., 2 Low. (U. S.) 315. 
 
 dy" may pursue it. Compare § 16, supra. 11. The Edwin Post. 6 Fed Repr. 206. 
 
 3. Am. Ins. Co. v. Canter, i Pet. (U. 12. The Moses Taylor, 4 Wall. (U. S.) 
 S.) 511. 411; The Sabine. loi U. S. 384. 
 
 4. U. S. Rev. Stat. § 631. IS. U. S. v. Ames, 99 U. S. 35. 
 
 5. Acts, Sept. 24, 1789, and March l, 14. The Sabine, supra. 
 
 1875; Supp. to Rev. Stat., vol. i. p. 136. 15. The John, 2 Hagg. p. 317. 
 
 301 
 
Actions in Personam, ADMIRALTY. Joinder of Actions. 
 
 rules ; ^ yet because it is the act of the law, no action will lie for 
 false arrest of the res!''' 
 
 No process (except in formd pauperis by special allocatur) can 
 issue without security for costs entered, while to secure the release 
 of the thing seized a stipulation for the value of the thing arrested 
 is necessary, which once given represents the res^ and forever dis- 
 charges the lien sought to be enforced.* 
 
 Any one having the right of possession may become the claim- 
 ant,^ whose death does not abate the suit.^ 
 
 The persons signing the stipulation to release the thing seized 
 are liable individually to the full amount of the stipulation, but 
 no farther.'' A person not signing, even the claimant, cannot be 
 made liable,* but the liability of those who have signed can be 
 fixed in the same suit in which the stipulation was given, and de- 
 cree entered directly against them.® 
 
 21. Actions in Personam. — A citation or monition to appear and 
 answer, containing a clause in the nature of a warrant of arrest or 
 capias, where the State law would permit arrest,^* or of attach- 
 ment ^^ against non-residents, is the appropriate method of begin- 
 ning these actions. 
 
 Stipulators cannot surrender their principal like bail, but are re- 
 sponsible for the amount decreed.^* 
 
 Attachments may issue in tort as well as contract,*^ and are not 
 confined to maritime seizures. i* 
 
 22. Joinder of Actions. — The rules of the Supreme Court permit 
 actions in rem and personam to be joined in the same libel for 
 wages, pilotage,, and collision,!^ and there would not seem to be 
 any impropriety in joining them in any case.^® They are, how- 
 ever, generally regarded as separate and cumulative.^'' 
 
 Proceedings in rem, however, may be changed to those in per- 
 sonam, by amendment.^* 
 
 1. The St. Lawrence, i Black (U. S.), given under that law. The Edith, 94 
 522. U. S. 518. 
 
 2. Thompson v. Lyle, 3 W. & S. (Pa.) 9. The Alligator, i Gall. (U. S.) 145. 
 166; The Apollon, 9 Wheat. (U. S.) 362. 10. Adm. Rule, 47; The Carolina, 14 
 
 3. The Lucille, 19 Wall. (U. S.) 73; Fed. Repr. 424; The Kentucky, 4 
 The Lady Pike, 96 U. S. 461. Blatchf. (U. S.) 48. 
 
 4. TheThales, 3Bend. (U. S.)327; The 11. Adm. Rule 2. 
 
 White Squall, 4 Blatchf. (U. S.) 103. 12. Adm. Rule 3. Holmes v. Dodge, 
 
 Nor can xh&res ever be,rearrested, even i Abb. Adm. 60; Gaines v. Travis, ibid, 
 
 by other parties, for the enforcement of 422; In r^ Loring Snow,2 Curt.(U.S.)485. 
 
 the same lien. Such parties should peti- 13. Manro u. Almeida, 10 Wheat. (U. 
 
 tion to become co-libellants. The Nahor, S.) 473. 
 
 9 Fed. Repr. 213. 14. Miller v. The U. S., ir Wall (U.S.) 
 
 5. The Prometheus, I Low (U.S.), 4gi. 268; Atkins i/. The Disintegrating Co., 
 
 6. The James A. Wright, 10 Blatchf. 18 Wall. (U. S.) 272. 
 
 (U. S.) 160. s 15. Adm. Rules, 13-15. 
 
 7. The Webb, 14 Wall. (U. S.) 406. 16. Newell v. Norton.s Wall.(U.S.)257. 
 
 8. The Gran Para, 10 Wheat. (U. S.) 17. The Prince Albert, 5 Ben. (U. S.) 
 497. These rules, growing out of the doc- 386; The Zodiac, 5 Fed. Repr. 220; Ins. 
 trine that the stipulation represents the Co. v. Alexandre, 16 Fed. Repr. 279. 
 r«, are not changed by the fact that the 18. The Virgin, 8 Pet. (U. S.) 538; 
 admiralty may be enforcing a lien given Chamberlain z/. Ward, 21 How. (U. S.) 
 by State law, and represented by a bond 548. ■ 
 
 aoa 
 
Pleadings— Set off. ADMIRALTY. Evidence— Trial— Decree. 
 
 23. Pleadings.— Admiralty pleadings are in general simple and 
 untechnical.'^ 
 
 The libel must show the jurisdiction of the court * and if it is 
 filed by a part of the persons interested for the benefit of all, it 
 must state that fact.^ It need not be sworn to (though this is 
 usually done), but the answer must be sworn to in any event.* 
 
 The claimant or respondent may both answfer and demur,^ and 
 the libellant should not prolong the pleadings by a replication, but 
 amend his libel." 
 
 24. Set-off and Recoupment. — No statute especially authorizes ad- 
 miralty to take cognizance of set-off, hence it is admitted only to 
 diminish compensation, not as an independent right,'' and not 
 even then unless the court would have jurisdiction if it were pre- 
 sented as an original demand.^ 
 
 Recoupment is, however, admitted in cases of both tort and con- 
 tract, even to the extent of .compelling contribution among tort- 
 feasors.'' 
 
 25. Action pending. — That a suit for the same cause is pending 
 in a State or foreign court is no bar to proceedings in admiralty.^" 
 
 26. Evidence. — The common-law rules of evidence do not ap- 
 ply in admiralty,!^ nor the statutes of States in which the courts 
 sit i^'"* but U. S. statutes, of course, do apply. 
 
 From the nature of the causes heard, the character of the wit- 
 nesses and the place (the sea) where much documentary evidence 
 is prepared, the rules of admiralty are lax, and must often bend 
 to the circumstances of a peculiar case.*^ 
 
 27. Trial. — Jury trials are not a right in admiralty unless given 
 by express statute;^* ordinarily the hearing is before the judge 
 alone. 
 
 Though the proof may differ from the allegations of the plead- 
 ings, unless the variance is so great as to be misleading the court 
 will proceed to a decree.^** 
 
 28. Decree. — In actions in personam the decree, like an ordinary 
 judgment, is against persons and corporations properly served with 
 process within the territorial limits of the court's jurisdiction, or 
 against the attached property of persons not so served.** 
 
 1. Du Pont de Nemours v. Vance, ig 10. The Tubal Cain, g Fed. Repr. 834; 
 How. U. S. 162. The Peshawur. L. R. 8 P. D. 32. 
 
 2. Boon V. The Hornet, Crabbe, (U. 11. The J. F. Spencer, 3 Ben. (U. S.) 
 S.)426. 337. 
 
 3. Ins. Co. u. Johnson, Blatchf. & H. 12. The Independence, 3 Curt. (U. S.) 
 (U. S.) ig. 360. 
 
 4. Coffin V. Jenkins,3 Story, (U. S.) 108. 13. The Vivid. 4 Ben. (U. S.) 319. 
 
 5. The William Penn, 3 Wash. (U. S.) 14. Gillet v. Pierce, Bro. Adm. 553. 
 484. ' The right is secured on the demand of 
 
 6. The Sarah Anne, 2 Sumn. (U.S.) 206. either party in certain cases arising on 
 
 7. Willard v. Dorr, 3 Mason (U. S.), the Western lakes and rivers by U. S. 
 161. Rev. Stat. § 566. 
 
 8. The James and Catherine, Bald'w, 15. The William Penn. 3 Wash (U. S.) 
 <U. S.) 544. 484; The Clement, 2 Curt. (U. S.) 363. 
 
 9. The David Faust, I Ben. (U.S.) 183; 16. Boyd v. Urquhart, i Sprague (U. 
 The North Star, 106 U. S. 17. S.), 433. 
 
ADMIRALTY— ADOPTION OF CHILDREN. 
 
 A decree in rem is against the res itself, and binds parties, 
 privies and strangers ; for to the proceeding all the world are 
 parties,^ and such decree cannot be questioned even in the courts 
 of a country whose ship has been condemned by a foreign tribu- 
 nal.a 
 
 Decrees in rem are usually entered also against the stipulators 
 for the release of the thing seized ; they then become, with 
 decrees in personam, liens upon the real estate of stipulators and 
 respondents according to the law of the State where they are en- 
 tered,^ and are enforceable by execution, directed to the U. S. 
 marshal, in the nature of a writ oi fieri facias J^ 
 
 29. Uestraint of Lower Courts. — Obviously all questions of jurisdic- 
 tion may be raised at the hearing of a cause and considered on 
 appeal ; but the law permits the Supreme Court of the U. S. to is- 
 sue to district courts, " when proceeding as courts of admiralty 
 and maritime jurisdiction," writs of prohibition,' for the purpose 
 of preventing them from assuming a jurisdiction with which they 
 are not legally vested.** 
 
 If, however, the case which the applicant for the writ alleges to 
 be without the jurisdiction, appears to be really of a maritime 
 nature, the writ will be refused, and the complaining party left to 
 his remedy of appeal -^ for the writ is not of right, but rests in the 
 sound discretion of the court.* 
 
 ADOPTION OF CHILDREN. See Bastardy; Parent and 
 Child. 
 
 1. Definition. — The act by which a person takes the child of an- 
 other into his family, and treats him as his own.® 
 
 1. HoUingsworth w. Barbour, 4 Pet. Ex parte li{z.%z.x, 104 U. S. 520; Ex parte- 
 (U. S.) 466. The res, however, must have Pennsylvania, 109 U. S. 174. 
 
 been actually seized; without it there is 8. Ex parte Easton, 95 U. S. 68. The 
 
 no jurisdiction to make the decree, effect of these decisions is to render this 
 
 Taylor w. Carryl, 20 How. (U. S.) 583; remedy of little value and confer upon 
 
 Miller v. U. S.. 11 Wall. (U. S.) 294. But the district and circuit judges the final 
 
 once seized, jurisdiction attaches, and the decision of all jurisdictional questions in 
 
 decree is valid though res removed, cases involving less than $5000. 
 
 The Rio Grande, 23 Wall. (U. S.) 458; Authorities for Admiralty. — Standard 
 
 Ex parte Devoe Manuf. Co., 108 U. S. 401. American works are Conkling's Jurisdic- 
 
 2. The Trenton, 2 Fed. Repr. 657; Im- tion. Law, and Practice in Admiralty, 2d 
 rie f . Castrique, L. R. 4 H. L. 414. Ed. 2 vols. 1857; and Parson's Shipping 
 
 3. Ward 7'.Chamberlain,2 Black(U.S.), and Admiralty, 2 vols. 1869. Books of 
 430; Cropsey v. Crandall, 2 Blatchf. daily necessity to the practitioner are 
 (U. S.) 341. Benedict's Admiralty, 2d Erf. 1870; Des- 
 
 4. Adm. Rule 21 ; The Kentucky, 4 ty's Shipping and Admiralty, 1879, and 
 Blatchf. (U. S.) 448. Henrv's Admiralty Jurisdiction and Pro- 
 
 6. U. S. Rev. Stat, § 688. cedur'e, 1885. 
 
 6. Though its use in the Federal 9. Bouvier's Law Diet. 
 
 courts is founded on statute, the writ Adoption was unknown to the common 
 itself is as old as the common law, and law, but was recognized by the civil law, 
 was the instrument by which the court of and exists in many countries on the con- 
 king's bench continually harassed and tinent of Europe which derive their juris- 
 humiliated the English courts of admiral- prudence from that law. Co. Lit. 7, b. 
 ty. Vide High's Extraordinary Legal 237, b. 4; Phillimore, § 531; Mackenzie's 
 Remedies, and ante, § i. Roman Law. 120-124; Whart. Confl. of 
 
 7. Ex parte Gordon, 104 U. S. 515; L. § 251. It was introduced from the 
 
 !i04 
 
Definition. 
 
 ADOPTION OF CHILDREN. 
 
 Descent — Status. 
 
 In many of the States, adoption has been regulated by statute.* 
 2. Descent — Status. — The rights of descent flow from the legal 
 
 law of France or of Spain into Louisiana 
 and Texas, but was abolished in Louisi- 
 ana in 1808; see Fuselier v. Masse, 4 La. 
 423; Vidal V. CommagSre, 13 La. Ann. 
 516; Teal V. Sevier, 26 Tex. 516. The 
 rights pf the parent by adoption are 
 treated substantially as those of a natural 
 parent. Schouler Dom. Rel. § 232. 
 
 An adoption is not revocable, unless 
 some sufficient reason is shown therefor. 
 Janes v. Cleghorn, 54 Ga. 9. 
 
 1. Whitmore on Adoption. 
 
 The word '' child " as used in a statute 
 relating to adoption of children means 
 minor child. Re Moore, 14 R. L 38. 
 
 It is immaterial that the name of the 
 child does not appear in the body of the 
 instrument, and that the person adopting 
 signed as guardian. Bancroft v, Ban- 
 croft, 53 Vt. 9. 
 
 A complaint seeking to have an order 
 of court granting the prayer of a petition 
 for the adoption of a child, and contain- 
 ing the averment " that at the time of 
 said adoption said defendant " (the adop- 
 tive child) "was eighteen years of age, 
 and knew that said Preston Brown" (the 
 ^ adopting fatheV) ' ' was a person of un- 
 sound mind; and that so knowing, and 
 for the purpose of becoming the heir of 
 said Preston Brown, and securing the 
 property of said Brown, he gave his con- 
 sent to said adoption, and permitted said 
 adoption to be made," does not show 
 such fraud as will vitiate the order of 
 the court. Brown v. Brown, loi Ind. 
 340. 
 
 A widowed mother joined in executing 
 a deed of adoption of her child. A day 
 or two afterward, at her request, the 
 adopter signed a paper stating that she 
 could " have her son (the adopted child) 
 at any time she calls for him." Held — (l) 
 that under the statute, by joining in the 
 deed she relinquished her parental rights 
 over the child; (2) that the subsequent 
 paper could not be construed to work a 
 revocation of the deed; it was evidently 
 intended to allow her only the temporary 
 custody and society of the child. Re 
 Clements, 78 Mo. 352. 
 
 Under the statute as to the adoption of 
 infants, the consent of the parent is ab- 
 solutely necessary, where such parent is 
 not hopelessly intemperate or insane, and 
 has not abandoned the child, even though 
 the child be under fourteen. Luppie v. 
 Winans, 37 N. J. Eq. 245. 
 
 Where articles for the adoption of a 
 child were made by its mother to defend- 
 ant, who, however, for several years 
 
 neglected to have them recorded, and 
 meanwhile the mother married the plain- 
 tiff, and executed articles of adoption to 
 him, which were at once recorded; while 
 it is.not decided which of the parties is in 
 law the father by adoption of the child, 
 nor what the child's rights of inheritance 
 are, yet it is held, in an action by plain- 
 tiff to recover the child from the custody 
 of defendant, that the question must be 
 decided according to the fjest interests 
 of the child, in view of all the circum- 
 stances, and not solely on the ground of 
 legal parentage. Fonts v. Pierce, 64 
 Iowa, 71; see Luppie v. Winans, 37 N. 
 J. Eq. 245. 
 
 Where natural heirs seek to set aside 
 an order for the adoption of a child, their 
 remedy is in equity; they must proceed 
 promptly, and a delay of ten years will 
 be fatal to their suit. Brown v. Brown, 
 loi Ind. 340. 
 
 Under the Mass. Pub. Sts. i;. 148, § 4, 
 notice of a petition for the adoption of a 
 child is necessary in all cases where the 
 written consent required by § 2 is not 
 submitted to the court with the petition, 
 even if a case is presented by the petition, 
 which, if proved to exist, would authorize 
 the judge of probate to decree the adop- 
 tion without consent. Humphrey, ap- 
 pellant, 137 Mass. 84. 
 
 It is no objection to the maintenance 
 of a petition by a husband and wife to 
 the Probate Court, under the Mass. Pub. 
 Sts. c. 148, for the adoption of a child, 
 alleged to be of unknown parentage and 
 a foundling, that the petition does not 
 also allege that the child is not one of the 
 class excepted in § i. Edds, Appellant, 
 137 Mass. 346. ^ 
 
 Where the articles of adoption were 
 signed and acknowledged by the natural 
 parent, but the persons intending to 
 adopt failed to execute the instrument, 
 and the child resided with them for 
 eighteen months, held, that a legal 
 adoption was not accomplished. Long 
 ■V. Hewitt, 44 Iowa, 363. 
 
 An adopted child usually inherits from 
 the adopting parent, and vice versa; but 
 otherwise as to collateral kindred. 
 Schouler Dom. Rel, § 232, n. 
 
 Failure to file articles of adoption un- 
 til after the death of the adopting party 
 renders the adoption incomplete, and the 
 adopted child cannot inherit from dece- 
 dent. To create rights of inheritance 
 under the statute in regard to adoption, 
 the statutory requirements must be 
 strictly complied with. Shearer v. Wea- 
 
Descent — Status. 
 
 ADOPTION OF CHILDREN. 
 
 Services. 
 
 status of the parties, and where the status is fixed the law sup- 
 plies the rules of descent.^ 
 
 ver, 56 Iowa, 578; Tyler v. Reynolds, 
 53 Iowa, 146. 
 
 1. Where a child, adopted by a husband 
 and his wife jointly, dies, without chil- 
 dren or their descendants, the owner of 
 land inherited from the adopting mother, 
 the surviving husband and adoptive fa- 
 ther inherits such land, and it does not 
 descend to the natural mother. Hum- 
 phries V. Davis, 100 Ind. 274; s. c, 50 
 Am. Rep. 788; Paul w. Davis, 100 Ind. 
 422; Hyatt V. Pugsley, 33 Barb. (N. Y.) 
 373; Valentine v. Wetherill, 31 Barb.(N. 
 Y.)655; Sewall w. Roberts, 115 Mass. 
 262; Hole V. Robbins, 53 Wis. 514. Com- 
 Jiare Com. v. Povvel, 20 Cent. Law 
 Jour. 343; Reinders v. Koppelmann, 68 
 Mo. 482. 
 
 Where an adopted child dies intestate, 
 •unmarried,, and without lawful issue, or 
 their decendants, surviving him or her, 
 seized of real estate or owning personal 
 property, which may have come to such 
 child by gift, devise, or descent from the 
 adopting parent or parents, father or 
 mother, such real estate or personal 
 property shall descend to the adopting 
 father or mother, if living, or, if dead, 
 to the heirs-at-law of such adopting fa- 
 ther or mother, to the entire exclusion of 
 the natural heirs of such adopted child 
 from any share or interest therein. Barn- 
 hizel 11. Ferrell, 47 Ind. 335, so far as it 
 is in conflict with this case, is overruled. 
 Davis V. Krug, 95 Ind. i. 
 
 Where a father adopted two children 
 of his daughter, and afterwards died, 
 leaving no will, the children so adopted 
 inherited from him as his own children, 
 and inherited, also, the share of their 
 deceased mother. Wagner v Varner, 
 50 Iowa, 532. 
 
 Real estate was devised to A. for life, 
 with power to dispose of it by will, or, if 
 he died intestate, to pass by intestate 
 laws. Held, that his adopted child was 
 entitled to the estate. Johnson's App., 
 88 Pa. Stat. 346. 
 
 The Pennsylvania statute of 1872 was 
 intended to be retrospective, but where 
 the adopting parent died intestate in 
 1870 it was held that a proceeding under 
 the act of 1872 could not divest the es- 
 tate which had vested in his children at 
 his death. Ballard v. Ward, 89 Pa. St. 
 358. 
 
 An adopted child cannot (in Pennsylva- 
 nia) take under a devise to the "children" 
 of the parent by adoption, as it is not a 
 child by nature. Shafer v. Eneu, 54 Pa. 
 
 St., 304. Compare Barnes v. Allen, 25; 
 Ind. 222. • 
 
 An adopted child can take by descent 
 only from the person adopting, and not 
 from lineal or collateral kindred of the 
 adopting parent. Such child cannot by 
 inheritance take from a child of the 
 adopting parent born in lawful wedlock. 
 Keegan v. Geraghty, loi 111. 26. 
 
 The rights of inheritance acquired by 
 an adopted child under the laws of 
 another State where he was adopted, are 
 subservient to the laws of the State 
 where the property is situated. Keegan 
 V. Geraghty, loi III. 26. 
 
 The adoption of an heir-at-law by a 
 husband, without (he consent of his 
 wife, and leaving no issue, will not oper- 
 ate to prevent his widow from inheriting 
 as provided by statute; and at her de- 
 cease her share will pass to her heirs, 
 and not to the heirs or devisees of the 
 adopted person. Stanley v. Chandler, 
 53 Vt. 619. 
 
 The status of any person, with the in- 
 herent capacity of succession or inheri- 
 tance, is to be ascertained by the law of 
 the domicile which creates the status, at 
 least when the status is one which may 
 exist under the laws of the State in which 
 it is called in question, and when there is 
 nothing in those laws to prevent giving 
 full effect to the status and capacity ac- 
 quired in the State of the domicile. A 
 child adopted, with the consent of 
 its father and the sanction of a judicial 
 decree, in another State, where the par- 
 ties are domiciled at the time, under a 
 statute by which a child so adopted has 
 the same rights of inheritance as legiti- 
 mate offspring in the estate of the adopt- 
 ing father, is entitled, after the adopting 
 father and the adopted child have removed 
 their domicile into Massachusetts. to in- 
 herit here the real estate of such father 
 as against his collateral heirs; although 
 his wife has given no formal consent to 
 the adoption, as is required under the 
 statutes of adoption in Massachusetts, 
 Ross V. Ross, 129 Mass. 243; s. c, 37 
 Am. Rep. 321. 
 
 An adopted child will take as a child 
 under a residuary clause of the adopting 
 father's will, where the specific legacy 
 has lapsed. Burrage v. Briggs, 120 Mass. 
 103. 
 
 Under the New Hampshire statute, 
 1867, held, that the provision that the 
 decree be made in the county where the 
 petitioner or the child resides, implies 
 
 306 
 
ADOPTION OF CHILDREN— ADULT— ADULTERATION. 
 
 3. Services. — There is no difference between an adoptive and a 
 natural child as to the right to recover for services. ^ 
 
 ADULT. — The word " adult " signifies a person who has attained 
 the full age of twefity-one years.* 
 
 A statute to prevent the sale of liquor required that the law 
 should be enforced upon the petition of a majority of the " adult " 
 residents. Held, that adult females, as well as males, may join in 
 the petition.^ 
 
 ADULTERATION. (See POLICE POWER.) — At the common law 
 it is an indictable offence to mix unwholesome ingredients in any- 
 thing made and supplied for the food of man.* ' 
 
 Statutes forbidding the sale of impure or adulterated articles of 
 food or of drugs exist in many of the States. These statutes are 
 ■within the police power of the legislature, and constitutional.^ 
 
 that the statute was intended to be limit- 
 ed to cases in which all the parties have 
 their domicile in the State; and does not 
 apply to the case of an adoption therein 
 of a child domiciled there by persons, 
 then and since domiciled in Massachu- 
 setts. Foster v. Waterman, 134 Mass. 
 
 592- 
 
 1. Lunay v. Vantyne, 40. Vt. 503. 
 
 2. Schenault v. State, 10 Tex. App. 410. 
 The burden of proof of the age is on 
 
 the State. George v. State, 11 Tex. App. 
 
 95- 
 
 3. Blackwell v. State, 36 Ark. 178. 
 
 4. At Conuuon Law. — i Russell on 
 Climes, i6g. See Burn by v. RoUitt, 16 
 M. & W. 644; R. V. Dixon, 3 M. & S. 11; 
 Goodrich v. People, 2 Park. Cr. (N. Y.) 
 622; State V. Smith. 3 Hawk. (N. Car.)40; 
 State V. Norton, 2 Ired. L. (N. Car.) 40. 
 
 The selling unwholesome provisions, 
 4 Bl. Com. 162, or the giving any person 
 unwholesome victuals, not fit for man to 
 eat, lucri causd, 2 East (P. C), 822. is an 
 indictable offence. Where the defendant 
 was indicted for deceitfully providing 
 certain French prisoners with unwhole- 
 some bread, to the injury of their health, 
 it was objected, in arrest of judgment, 
 that the indictment could not be sus- 
 tained, for it did not appear that what 
 was done was in breach of any contract 
 with the public, or of any civil or moral 
 duty; but the judges, on a reference to 
 them, held the conviction right. R. v. 
 Treeves, 2 East (P. C), 821. The defend- 
 ant was indicted for supplying the royal 
 military asylum at Chelsea with loaves 
 not fit for the food of man, which he 
 well knew. etc. It appears that many of 
 the loaves were strongly impregnated 
 with alum (prohibited to be used by re- 
 pealed statute 37 Geo. 3, t. 98, s. 21), 
 and pieces as large as horse-beans were 
 
 found; the defence was, that it was 
 merely used to assist the operation of the 
 yeast, and had been carefully employed. 
 But Lord EUenborough said, " Whoever 
 introduces a substance into bread, which 
 may be injurious to the health of those 
 who consume it, is indictable if the 
 substance be found in the bread in that 
 injurious form, although, if equally 
 spread over the mass, it would have done 
 no harm." R. v. Dixon, 4 Camp. 12; 3 
 M. & S. II. 
 
 It is a nuisance for a common dealer 
 in provisions to sell unwholesome food, 
 or to mix noxious ingredients in the pro- 
 visions which he sells. R. v. Dixon, 3 
 M. & S. II. Or to cause to be publicly 
 exposed for sale, as sound and whole- 
 some meat, meat known not to be sound 
 and wholesome. R. v. Stevenson, 3 F. 
 & F. 106. Or knowingly to send such 
 meat to market. R. v. Jarvis, 3 F. & F. 
 108; R, V. Crawley, 3 F. & F. 109. 
 
 5. By Statute. — People v. Cipperly, loi 
 N. Y. 634; State v. Groves, 2 Atl. Repr. 
 (R. I.) 384; State V. Smith, 14 R. I. 100; 
 s. c, 51 Am. Rep, 344. Com. v. Evans, 
 132 Mass. 11; Com. v. Wentworth, 118 
 Mass. 441; Com. v. Smith, 103 Mass. 444; 
 Shivers v. Newton, 45 N. J. L. 469; 
 Pierce v. State, 63 Md. 592; Butler v. 
 Chambers, 30 N. W. Repr. (Minn.) 308; 
 State V. Addington, 77 Mo. 117; Phillips 
 V. Mead, 75 111. 334; Bainbrldge v. State, 
 30 Ohio St. 264; U. S. V. Bayaud, 16 
 Fed. Repr 384. CotKpare. People v. 
 Marx, 99 N. Y. 37'/; s. c, 9 Am. & Eng. 
 Corp. Cas. 491 ; People v. Arensburg, 7 
 Eastn. Repr. (N. Y.) 751. 
 
 In People v. Marx, 99 N. Y, 377; s. c, 
 9 Am. & Eng. Corp. Cas. 491 and note, 
 the statute was held void, chiefly because 
 it was construed to be an attempt on the 
 part of the legislature to drive the man- 
 
 207 
 
Drugs. 
 
 AD UL TERA TION. 
 
 Uilk and Tood. 
 
 Adulteration — Continued. 
 ufactured article from the market for the 
 benefit of another industry, and to pro- 
 tect those engaged in the manufacture of 
 dairy products against the competition of 
 cheaper substances, capable of being ap- 
 plied to the same uses; in other words, 
 that the object of the statute was to pr9- 
 hibit one industry in order to foster an- 
 other. See People v. Arensburg, 7 Eastn. 
 Repr. (N. Y.) 751- 
 
 In sustaining a similar statute, the 
 Supreme Court of Minnesota, speaking 
 of the New York case {supra), said : " This 
 assumes that the object of the legislation 
 was for the benefit of a class, and that 
 there were no reasonable grounds for the 
 exercis? of the police power; because, if 
 there were such grounds, it is no objec- 
 tion that a legitimate industry is inci- 
 dentally benefited, as the practical result 
 of the operation of the statute. We do 
 not think the court would be warranted 
 in setting aside this legislation on such 
 grounds." Butler v. Chambers, 30 N. W. 
 Repr. 308. 
 
 See State v. Addington, 77 Mo. 117. 
 In re Brosnahan, 18 Fed. Repr. 62; 
 Palmer v. State, 39 Ohio St. 236; s. c, 
 48 Am. Rep. 429. 
 
 Dangerous Drugs. — A law prohibiting 
 the sale of opium is constitutional. State 
 V. Ah Chew, 16 Nev. 50; a. c, 40 Am. 
 Rep. 488. ' 
 
 Adulteration of Milk and Food Products, 
 — The legislature may make it a criminal 
 offence to sell milk-and-water, and in a 
 prosecution for so doing a certificate of 
 analysis by a sworn milk-inspector is ad- 
 missible as evidence. Commonwealth v. 
 Waite, II Allen (Mass.), 264. It is not 
 necessary to convict for selling adulter- 
 ated milk to show knowledge of the adul- 
 teration by the seller, nor to aver that the 
 milk was cow's milk. Nor is it a defence 
 to show that the woman who sold it was 
 acting as her husband's agent. Com. v. 
 Farren, 9 Allen (Mass.), 489; but see 
 Dilley v. People, 4 Brad. (111.) 52. The 
 result of a test by a lactometer is admis- 
 sible in evidence. Com. v. Nichols, 10 
 Allen (Mass.), 199; see also Com. v. 
 Flannelly, 15 Gray (Mass.). 195; Thomp- 
 son V. Howe, 46 Barb. (N. Y.) 287. But 
 tests of milk made more than a year after 
 the violation complained of are inadmis- 
 sible. Stearns v. Ingraham, 46 T. & C. 
 (N. Y.) 218. But an act prohibiting the 
 sale of adulterated milk does not embrace 
 the offence of bringing such milk into the 
 the city. Polinsky v. State, 73 N. Y. 65. 
 
 The fourth section of the New Jersey 
 act provides that in all prosecutions 
 under this act, if the milk shall be shown 
 
 upon analysis by a member of the board 
 of public analysis, or the chemist of the 
 State experiment station, to contain more 
 than 88 per cent of watery fluids, or to 
 contain less than 12 per cent of milk 
 solids, such milk shall be deemed, for the 
 purposes of this act, to be adulterated. 
 Held, that this section is not intended to 
 operate as a rule of evidence by which 
 the act of the analyst is to be conclusive 
 of the guilt of the defendant in selling 
 adulterated milk, but was intended to pro- 
 hibit the sale of milk under a certain 
 standard of excellence, and this exercise 
 of authority is within the discretion of the 
 legislature in the exertion of the police 
 power inherent in the State. Shivers v. 
 Newton, 45 N. J. L. 469; see State v. 
 Smith, 14 R. I. loo; s. c, 51 Am. Rep. 
 
 344- 
 
 Defendant kept milk in, and sold it 
 from, a lank marked " Skimmed milk." 
 Held, that evidence that the milk was so 
 sold was a good defence to the charges 
 in the complaint, and that Xhi defendant 
 could not be convicted by proof that the 
 milk was watered. Com. v. Tobias, 141 
 Mass. 129. 
 
 The Ohio statute provides for the pun- 
 ishment, by fine or imprisonment, or 
 both, of persons who knowingly sell, of 
 offer for sale, any substance purporting 
 to be butter or cheese, or having sem- 
 blance of butter or cheese, which sub- 
 stance is not made wholly from pure 
 cream or pure milk, unless each package 
 of such substance have distinctly and 
 durably painted, stamped, or marked 
 thereon the name of each article used or 
 entering into the composition of such 
 substance. Held, the fact that the article 
 sold was manufactured under letters 
 patent issued by the U. S. constitutes no 
 defence to an information or indictment 
 for violating the provibions of this stat- 
 ute. Palmer v. State, 39 Ohio St. 236; 
 s. c, 48 Am'. Rep. 429. In re Brosnahan, 
 18 Fed. Repr, 62; s. c, 4 Am. Cr.R. 16. 
 
 The adulteration of confections may 
 also be prohibited; but an indictment 
 charging defendant with fraudulently 
 adulterating "a certain substance in- 
 tended for food — to wit, one pound of 
 confectionery" — does riot sufficiently de- 
 scribe the substance adulterated', and if 
 reasonably objected to will be quashed. 
 Com. V. Chase, 125 Mass. 202. 
 
 A person entered a shop and asked for 
 green tea. He received tea. which upon 
 analysis proved to be faced with gypsum 
 and Prussian blue. It appeared that tea 
 imported from China as fjreon tea, and 
 known as such to the trade, is faced as 
 
 308 
 
At Common Law, 
 
 ADULTERY. 
 
 Evidence — Practioe. 
 
 ADULTEUY (when not a Matter of Divorce)— UNLAWFUL CO- 
 HABITATION. See Divorce ; Fornication ; Incest. 
 
 1. At Common Law. — Adultery is criminal conversation with a 
 man's wife. The woman must be married; she must be another 
 
 above, and the tea not faced is imported 
 from Japan and is not generally known 
 as green tea; but this is not generally 
 known to the public. The tea sold as 
 above was faced in China. Held, that 
 the seller Avas guilty of selling adulter- 
 ated tea as unadulterated. Roberts v. 
 Egerton, L R. g2 B. 494. 
 
 A publican sold as a bottle of gin a li- 
 <}uid composed of 26 per cent alcohol, 70 
 per cent water, and 4 per cent sugar. 
 Evidence was adduced that gin was sold 
 by retailers at varying strength, from 
 proof to 20 per cent under proof. This 
 liquid was 44 per cent under proof, but 
 the analyst said he should call it "gin 
 Tfvhose alcoholic strength was exceedingly 
 low." The seller was convicted under 
 the Sale of Foods and Drugs act. Held. 
 that the facts justified the finding that 
 this liquid was not of the quality of gin, 
 but that the excess of water was a fraudu- 
 lent increase of the measure of the article. 
 Pashler v. Stevenitt, 35 L. T. N. S. 862. 
 See Webb v. Knight, 2 L. R. Q B. 530. 
 
 Evidence.— A complaint, under the 
 Massachusetts statute, alleging that the 
 defendant sold one pint of adulterated 
 milk — to wit, milk containing less than 
 thirteen per cent of milk solids — is not 
 supported by proof that he sold the milk 
 as skimmed milk out of a tank marked 
 as required by § 7, although the milk was 
 watered. Com. v. Tobias, 141 Mass. 129. 
 
 A person may be convicted of selling 
 adulterated milk without allegation or 
 proof that he knew it to be adulterated. 
 Com. V. Evans, 132 Mass. 11. See Com. 
 ■V. Farren, 9 Allen (Mass.), 489; Com. 
 V. Waite, 11 Allen (Mass.), 264; Com. v. 
 Nichols, 10 Allen (Mass.), 199; Com. v. 
 Smith. 103 Mass. 444; State v. Smith, 10 
 R. I. 258; People V. Zeigler, 6 Park Cr. 
 (N. Y.)355. Or adulterated liquors. Com. 
 V. Boynton, 2 Allen (Mass.). 160. See 
 Barnes v. State, 19 Com. 398. Cdmpare 
 Farrell v. State, 32 Ohio St. 456; s. c, 
 30 Am. Rep. 614. 
 
 A complaint under the Massachusetts 
 statute, alleging a sale of adulterated 
 milk, to wit, milk containing less than 
 thirteen per cent of milk solids, is sup- 
 ported by proof of a sale of milk, which, 
 by the removal of a part of the cream, 
 has been reduced in solids below thirteen 
 per cent. Com. v. Tobias, 141 Mass. 129. 
 
 In an indictment charging the defend- 
 ant with having in his custody and pos- 
 
 session, with intent to sell the same, ' ' one 
 pint of adulterated milk, to which milk 
 water had been added," the allegation is 
 descriptive, and is not supported by 
 proof that the milk in question was adul- 
 terated by adding water to pure milk 
 Com. V. Luscomb, 130 Mass. 42. 
 
 Practice. — At the trial of a complaint, 
 under the Massachusetts statute, alleging, 
 in the first count, a sale by the defendant, 
 at a time and place named, of adulterated 
 milk, and, in the second count, the hav- 
 ing in his possession, at the same time 
 and place, such milk, with intent unlaw- 
 fully 10 sell the same, the defendant 
 asked the judge to rule that " if the jury 
 find, on the evidence, that there was a 
 consummated sale, they cannot convict 
 under the second count." The judge de- 
 clined so to rule; and, after instructing 
 the jury as to what would authorize a 
 conviction on the first count, instructed 
 them that "if they should further find 
 that the defendant kept the same milk 
 with intent to sell it, they would be au- 
 thorized to return a verdict of guilty on 
 the second count." Held, that the defend- . 
 ant had no ground of exception. Com. 
 u. Tobias, 141 Mass. I2g. 
 
 A complaint under the Massachusetts 
 statute, alleging in one count that the 
 defendant, at a time and place named, 
 sold a certain quantity, to wit, one pint, 
 of adulterated milk, to wit. milk contain- 
 ing less than thirteen per cent of milk 
 solids; and in another count alleging 
 that the defendant, at the same time and 
 place, had in his possession a certain 
 quantity, to wit, one pint, of adulterated 
 milk, to wit, milk containing less than 
 thirteen percent of milk solids, with in- 
 tent then and there unlawfully to sell 
 the same, is sufficient, without further 
 alleging that the milk was analyzed, and 
 found, oti analysis, to contain less than 
 thirteen per cent of milk solids. Com. 
 V. Tobias, 141 Mass. 129. 
 
 A complaint that the defendant, at a 
 time and place named, had in his cus- 
 tody and possession a certain quantity, 
 to wit, one pint of adulterated milk, to 
 wit. milk then and there, containing less 
 than thirteen per cent of milk solids, with 
 intent then and there unlawfullyto sell the 
 same, is sufficient. Com. v. Keenan, 139 
 Mass. 193. 
 
 An action to protect butter and cheese 
 manufacturers must be brought in the 
 
 309 
 
At Common law. 
 
 ADULTERY. 
 
 Fornication. 
 
 man's wife ; and whoever, married or siu^e, has illicit intercourse 
 with her becomes guilty of adultery.^ 
 
 name of the party injured and defrauded 
 by the sale of the milk diluted with wa- 
 ter, and not in the name of the owner of 
 the "cheese factory" unless he has been 
 so defrauded. Tabor ». Herrick, 54 Vt. 
 63. 
 
 The court submitted to the jury the 
 bare question whether the defendant had 
 sold an article known as oleomargarine, 
 an article not made from pure unadulter- 
 ated milk or cream; and charged that if 
 he had he was guilty under the law. 
 ffelderror; that the defendant could only 
 be convicted of selling an article manu- 
 factured in imitation or semblance of but- 
 ler, and that it was error to ignore that 
 fact in the instructions to the jury. Peo- 
 ple V. Arensberg, 7 Eastern Repr. (N. Y.) 
 
 751. 
 
 Under the Pennsylvania statute which 
 provides that in all actions for the sale of 
 any spirituous, vinous, or malt liquors, 
 the fact that such liquors or admixtures 
 thereof were impure, vitiated, or adulter- 
 ated shall constitute a good and sufficient 
 defence. An instruction to the jury that 
 if they believed " there was any impu- 
 rity, vitiation, or adulteration which im- 
 . paired the quality or value of any of the 
 liquors in suit, to the least extent, the 
 plaintiffs cannot recover for the liquors 
 so impaired." ffeld, correct, gg Pa. St. 
 61. 
 
 Action to recover damages for fraudu- 
 lently adulterating milk with water. 
 Held, that exemplary damages could not 
 be allowed. Lane v. Wilcox, 55 Barb. 
 (N. Y.)6i5. 
 
 See, as to indictments, Goodrich v. 
 People, rg N. Y. 374; People u. Fauer- 
 bach.s Park Cr. 311; Lammond z/.Volans, 
 14 Hun (N. Y.), 263; Cora. v. Boynton, 
 12 Cush. (Mass.) 4gg; Com. v. O'Don- 
 nell. I Allen (Mass.), 5g3; Com. v. Mc- 
 Canon. 2 Allen (Mass.), 157; Com. v. 
 Flannelly. 15 Gray (Mass.). igs; Com. v. 
 Raymond. g7 Mass. 567; Hunton v. 
 State, I Head (Tenn.), 160; State v. Ja- 
 cobs, 38 Mo. 37g; Phillips v. Mead, 75 
 111. 334; Bainbridge v. State, 30 Ohio St. 
 264. 
 
 1. 3 Blackstone's Com. I3g; State o. 
 Wallace, g N. H. 515; State v. Taylor, 
 58 N. H., 331; State v. Lash, i Harr. 
 (N. J.) 380; s. c. , 32 Am. Dec. 3g7; State 
 V. Avery, 7 Conn. 267; State v. Arm- 
 strong, 4 Minn. 335; State v. Pearce, 2 
 Blackf. Ind. 318; State v. Searle, 56 Vt. 
 516; Cam. v. Bakeman, 131 Mass. 577; 
 s. c, 41 Am. Repr. 24S. 
 
 Fornication is sexual intercourse be- 
 tween a man, married or single, and an 
 unmarried woman. Adultery is sexual 
 connection between a. married woman 
 and an unmarried man, or a married man 
 other than her own husband. Hood v. 
 State, 56 Ind. 263; s. c, 26 Am. Rep. 
 21; State V. Taylor, 58 N. H. 331. Com- 
 pare Morrisset v. Commonwealth, 6 
 Gratt. (Va.) 673; Respublica v. Roberts, 
 2 Dall. (Pa.) 124. 
 
 In Massachusetts it is held that the act 
 of sexual intercourse by a married man 
 with an unmarried woman, or by an un- 
 married man with a married woman, is 
 adultery in the man without regard to the 
 guilt of the woman. Com. v. Bakeman, 
 131 Mass. 577; s. c, 41 Am. Rep. 248. 
 Also in Vermont under the statute. Slate 
 V. Searle, 56 Vt. 516. In this case the 
 court said: " The question raised is, 
 whether criminal intercourse between a 
 married man and a single or unmar- 
 ried woman isaduhery in the man. The 
 authorities are conflicting upon this point. 
 So far as this difference exists in report- 
 ed cases, it may have grown out of a dif- 
 ference in statutory provisions; not in 
 statutory definitions of adultery, as those 
 are rarely if ever found; but in provisions 
 that indicate the legislative view, and con- 
 trol the judicial and legal view." See 
 Com. V. Call, 21 Pick. (Mass.) 5og; s. c, 
 32 Am. Dec. 2B4; Com. v. Bradley, 2 
 Cush. (Mass.) '553. See to same effect 
 Weatherby v. State, 43 Me. 258; Hin- 
 ton V. State, 6 Ala. 864; White v. State, 
 74 Ala. 31; State v. Wilson, 22 Iowa, 
 364; Cook V. State, il Ga. 53; s. c, 56 
 Am. Dec. 410; State v. Chandler, g6 
 Ind. 5gi; State v. Sanders, 30 Iowa, 5S2; 
 State w. Donovan, 61 Iowa, 278; State v. 
 Fellows, 50 Wis. 65; State v. Clark, 54 
 N. H. 456; Tucker v. State, 35 Tex. 113; ' 
 Territory w. Whitcomb, l Montana, 358; 
 Miner v. People, 58 111. 5g; State v. 
 Hutchinson, 36 Me. 261; Helfrich v. 
 Commonwealth. 33 Pa. St. 68; Hull v. 
 Hull, 2 Strob. Eq. (S. Car.) 174. 
 
 Adultery is not an indictable offence 
 at common law. Anderson v. Common- 
 wealth, 5 Rand. (Va.)627; s. c, 16 Am. 
 Dec. 776; Com. v. Isaacs, 5 Rand. (Va.) 
 634; State V. Cooper. 16 Vt. 551; State 
 V. Brunson, 2 Bail. (S. Car.) I4g. Com- 
 pare State V. Wallace, g N. H. 515; 
 State V. Avery. 7 Conn. 267; Hood v. 
 State, 56 Ind. 263; s. c, 26 Am. Repr. 
 21. 
 
 The o£fence may be committed though 
 
 210 
 
At Common Law, 
 
 ADULTERY. 
 
 Cohabit, 
 
 By statute in some States the" common-law rule has been modi- 
 fied so as to extend the commission of the offence, to other as well 
 as married women, and in some instances the offence has by 
 statute been merged with that of unlawful cohabitation.* 
 
 the man was ignorant that the woman 
 was married. Com. v. Elvvell, 2 Mete. 
 (Mass.) 190; s. c, 35, Am. Dec. 398. 
 
 An act of sexual intercourse between 
 two persons, one married, the other single, 
 will be adultery in the former but not in 
 the latter. Hunter v. U. S., I Pinn. 
 (Wis.) gi; s. c, 39 Am. Dec. 277; Com. 
 V. Calf, 21 Pick. (Mass.) 509; s. c, 32 Am. 
 Dec, 284; Morrissett w. Commonwealth, 
 6Gratt. (Va.)673; Respublica «/. Roberts, 
 2 Dall. (Pa.) 124. Compare Com. v. El- 
 well, 5 Mete. (Mass.) 190; s. c., 35 Am. 
 Dee. 398; State v. Wallace, 9 N. H. 515; 
 State V. Pearce, 2 Blackf. (Ind.) 318; 
 State w. Wilson, 22 Iowa, 364. 
 
 1. Cohabit. — The legal sense of the term 
 in the statute is to live together in the 
 same honse as married persons live to- 
 gether, or in the manner of husband and 
 wife. Jones v. Commonweahh, 80 Va. 
 18. There must be both lewd and las- 
 civious intercourse, and a living together 
 of the parties as husband and wife live 
 together, to constitute the offence of 
 lewd and lascivious association and co- 
 habitation. Jones ■V. Commonwealth, 
 80 Va. i8. See Com. v. Isaacs, 5 Rand. 
 (Va) 635; Searls z/. People, 13 111. 597; 
 State V. Marvin, 12 Iowa, 499; Wright v. 
 State. 5 Blackf. (Ind.) 358; Com. v. Calef, 
 ID Mass. 153: Scott V. Commonwealth, 
 77 Va. 346; Carotti v. State, 42 Miss. 
 
 334. 
 
 In Searls v. People, 13 111. 597, the 
 indictment was for living in an open 
 state of fornication, and the court said: 
 " In order to constitute this crime, the 
 parties must dwell together openly and 
 notoriously upon terms as if the conju- 
 gal relation existed between them. The 
 object of the statute was to prohihit the 
 public scandal and disgrace of the living 
 together of persons of opposite sexes 
 notoriously in the illicit intimacy which 
 outrages public dece.ncy, having a demor- 
 alizing influence upon society. They 
 may, indeed, live together in the same 
 family, but if apparently chaste, regular- 
 ly occupying separate apartments, a sin- 
 gle instance of illicit intercourse would 
 not constitute the crime of living togeth- 
 er in an open state of fornication "... 
 " From the very nature of the case, 
 the offence must generally be proved by 
 circumstances, and the statute provides 
 that it ' shall be sufficiently proved by 
 circumstances which raise the presump- 
 
 tion of cohabitation and unlawful intima- 
 cy; ' but this presumption must be some- 
 tiling more than a mere suspicion. It must 
 amount to a reasonable belief or convic- 
 tion of the judgment, not only of un- 
 lawful intimacy, but also of cohabita- 
 tion." In Missouri, it is held that per- 
 sons, in order to be guilty of living to- 
 gether in open and notorious adultery,, 
 as meant by the statute, must reside to- 
 gether in the face of society, as if the- 
 conjugal relation subsisted between them, 
 and their illicit intercourse must be ha- 
 bitual and not occasional. State v. Crown- 
 er, 56 Mo. 147. While the opinion dis- 
 claims the meaning that the cohabit- 
 ing and abiding must be for a great length, 
 of time, or that perhaps a short time 
 would not do, still it holds that the par- 
 ties must live together in a notorious- 
 and open manner, to the evil example of 
 society. In Mississippi, it is held to con- 
 sist "in living together in the manner of 
 husband and wife without being lawfully 
 married, in the open assumption of the 
 visible forms of and rights of matrimony 
 without the sanction of the nuptial tie, 
 and without incurring those obligations- 
 and responsibilities which attach to the- 
 married state." Carroti v. State, 42 Miss. 
 335. 
 
 It need not be shown that the acts 
 of the defendants were open and notori- 
 ous in a prosecution under the Missouri- 
 statute which provides that " every man 
 and woman, one or both of whom are 
 married, and not to each other, who 
 shall lewdly and lasciviously abide and 
 cohabit with each other, shall, upon con- 
 viction, be adjudged guilty of a misde- 
 meanor." It is sufEeient for the State in 
 such ease to prove that the defendants 
 lived together as man and wife and in- 
 dulged in sexual intercourse habitually 
 and' in conformity to a regular custom on 
 their part. State w. West. 84 Mo. 440. 
 
 In Com. V. Calef, 10 Mass. 153, the- 
 prosecution was founded on a statute 
 which provided that "if any man and 
 woman, either or both of them being 
 then married, shall lewdly and lascivi- 
 ously associate and cohabit together, 
 they shall be punished," etc. In con- 
 struing this statute the court said: " By 
 cohabiting must be understood a dwelling- 
 or living together, not a transient and> 
 single unlawful interview." 
 
 In Scott V. Commonwealth, 77 Vai 
 
 an 
 
living in Adultery, 
 
 ADULTERY. 
 
 Living in Adultery, 
 
 Living in Adultery. — To constitute unlawful cohabitation, the 
 living together must be open and notorious, as if the relation of 
 husband and wife existed, and the illicit intercourse habitual. ^ 
 
 344, the evidence of unlawful cohabita- 
 tion was conclusive, and the conviction 
 was accordingly sustained. " It was 
 proven," said Judge Fauntleroy, in 
 delivering the opinion of the court, 
 "that the defendant, Scott, admitted that 
 the woman Retta Jackson was his wife; 
 that they lived together; that he (Scott) 
 admitted that Jackson's daughter was 
 his child; that he carried her mail to her 
 from the post-office, and that he familiar- 
 ly associated with her, and was reported 
 to live with her as man and wife." 
 
 Sexual intercourse between persons 
 not married, though living in the same 
 hoQse. is not sufficient, alone, to consti- 
 tute the offence of cohabiting together as 
 husband and wife without being married. 
 Taylor J/. State, 36 Ark. 84; a. c, 4 Am. 
 Cr. R. 30. 
 
 In order to establish the offence defined 
 by Mississippi statute, it most be shown 
 that the parties, whether dwelling to- 
 gether or not, habitually indulge in 
 sexual intercourse. It is not necessary 
 that the parties shall dwell together or 
 publicly avow the relationship existing 
 between them. It is sufficient to show 
 that relationship which, whether avowed 
 or concealed, if publicly known would 
 characterize the woman as mistress of 
 the man. It is habitual concubinage or 
 lying together which constitutes the co- 
 habitation meant by the statute. Gran- 
 berry V. Stale, 61 Miss. 440. 
 
 Evidence that defendant and R. lived 
 as man and wife for many years, and 
 that she bore him children, if not admis- 
 sible as proof of marriage in a trial on a 
 cliarge of adultery, is admissible as tend- 
 ing to identify the parties named in the 
 certificate. People 'j. Stokes, 12 Pac. 
 Repr. (Cal.) 71. 
 
 To sustain an indictment under the 
 Virginia statute the evidence must estab- 
 lish that the parties, not being married, 
 lewdly and lasciviously associated and co- 
 habited — that is, lived together in the 
 same house as man and wife live together. 
 Jones V. Commonwealth, 80 Va. 18. The 
 indictment may be either joint or sepa- 
 rate. Scott V. Commonwealth, 77 Va. 
 
 344- 
 
 1. Miner v. People, 58 111. 59. See 
 State V. Marvin, 12 Iowa, 499; Brevaldo 
 V. State, 21 Fla. 789; Sullivan v. State. 
 36 Ark. 64; Wright v. State, 5 Blackf. 
 (Ind.) 280; State v. Gartrell, 14 Ind. 280; 
 Clouser w. Clapper, 59 Ind. 548; Hall v. 
 State, 53 Ala. 463. People v. Gates, 46 
 
 Cal. 53; State v. Crowner, 56 Mo. I47; 
 Richardson v. State, 37 Tex. 346, 34 Tex. 
 142; Carotti v. State, 42 Miss. 334. 
 
 The statutory crime cannot be proved 
 by a single act, or even by a number of 
 acts, of illicit intercourse. Miner v. 
 People, 58 111. 59; Granberry v. State, 61 
 Miss. 440; Richardson v. State, 37 Tex. 
 346; State V. Crowner. 56 Mo. 147; 
 Clowser v. Clapper, 59 Ind. 548;£)arotti 
 V. State, 42 Miss. 334. 
 
 Where a cohabitation, using the words 
 in the usual sense, is shown, one or 
 more acts of sexual intercourse clearly 
 proven, or circumstances from which 
 such intercourse would necessarily be in- 
 ferred, as sleeping together, would up- 
 hold a verdict of guilty. But in the ab- 
 sence of evidence of such cohabitation, 
 it is not sufficient to prove occasional 
 acts of sexual intercourse. H. was a 
 pupil of G. and testified that on five or 
 six occasions during a scholastic term of 
 three months she remained at the 
 schoolroom after the other pupils had 
 been dismissed, at which times and 
 place, but at no other, G. had sexual 
 intercourse with her. Held, that this did 
 not constitute the offence defined by the 
 statute. Granberry v. State, 61 Miss. 
 440. 
 
 To constitute the offence of lewd and 
 lascivous cohabitation, within the mean- 
 ing of the statute it must be shown that 
 the parties lived together openly and 
 notoriously, as though the marriage 
 relation existed between them; occa- 
 sional acts of incontinence are not suffi- 
 cient. Pruner v. Commonwealth, 10 Va. 
 L. J. 520. 
 
 In State v. Marvin, 12 Iowa, 499, the 
 indictment charged, in the language of 
 the statute, that the defendants did lewd- 
 ly and lasciviously associate and cohabit 
 together. The evidence showed that 
 they lived together in the same house in 
 the relation of master and servant, and 
 that on two occasions the defendant M. 
 was seen getting out of bed with the 
 female defendant. The jury returned a 
 verdict of guilty, upon which judgment 
 was entered for the State, but on appeal 
 the judgment was reversed. " The de- 
 fendants." said the appellate court, 
 ''were not living together as husband 
 and wife. Secret acts of intercourse 
 would not make them liable. The bur- 
 den of the offence is the open, lewd,, 
 lascivious conduct of the parties living 
 together as man and wife. It is the 
 
 212 
 
Solicitation, 
 
 ADULTERY. 
 
 Consent not Essential. 
 
 It is the act of living together, and not the knowledge or in- 
 tent, that constitutes the offence.^ Religious or social usages are 
 no defence,* nor an invalid divorce.^ 
 
 Solicitation. — By the common law it is an indictable offence to 
 solicit one to commit adultery.* 
 
 Consent ofWoman not essential. — To constitute the crime of adul- 
 tery as against the man, the consent of the woman to the carnal 
 intercourse is not necessary.' 
 
 publicity and disgrace, the demoralizing 
 and debasing influence, that the law is 
 designed lo prevent." 
 
 In Searls v. The People, 13 111. 597, 
 which was a prosecution for living to- 
 gether in adultery, the trial court in- 
 structed the jury that " in order to con- 
 stitute this offence, even one act of sexual 
 intercourse need not be proved by positive 
 testimony, but the offence is sufficiently 
 proved by any circumstances which 
 raise the presumption of .unlawful inti- 
 macy and sexual and adulterous inter- 
 course." In reversing the judgment the 
 Supreme Court said: " In order to con- 
 stitute this crime the parties must dwell 
 together openly and notoriously upon 
 terms as if the conjugal relation existed 
 between them. In other words, they 
 must cohabit together." 
 
 Where the offence is committed one 
 night each week for seven months, it is 
 within the statute. Collins v. State, 14 
 Ala. 608. See Swancoat v. State, 4 Tex. 
 App, 105; Parks v. State, 4 Tex. App. 
 
 134- 
 
 Where the parties lived together for 
 several months in the same room, the 
 offence is established. Richardson v. 
 Stale, 37 Tex. 346, 
 
 If it exists but a single day, with the 
 intent to continue the cohabitation, the 
 offence is complete. Hall v. State, 53 
 Ala. 463. 
 
 See, generally, Collins v. State, 14 Ala. 
 608; Smith V. State, 39 Ala. 554; Hall v. 
 State, 53 Ala. 465; McLelana v. State, 
 25 Ga. 477; State v. Gartrell, 14 Ind. 
 280; Gaylor v. McHenry, 15 Ind. 383; 
 Wright V. State. 5 Blackf. (Ind.) 358; 
 s. c, 35 Am. Dec. 126; Swancoat v. 
 State, 4 Tex. App. 105; Parks v. State, 
 4 Tex. App. 134; Morrill v. State. 5 Tex. 
 App. 447; Searles v. People, 13 III. 597; 
 Miner v. People, 58 III. 60; Baker ». U. 1 
 S., I Pinn. (Wis.) 641. 
 
 1. The criminal offence of adultery is 
 not excused by the absence of a guilty 
 intent, unless a guilty knowledge is part 
 of the statutory definition; nor is it ex- 
 cused by the subsequent intermarriage of 
 the parties. Fox v. State. 3 Tex. App. 
 329; s. c, 30 Am. Rep. 144 ; State v. 
 
 Goodenow, 65 Me. 30; Com. v. Elwell, 2 
 Mete. (Mass.) 190; s. c, 35 Am. Dec. 398, 
 Under statutes the distinction has been 
 taken that where the guilty knowledge 
 is 4)art of the definition of the offence, 
 it must be averred, but not otherwise. 
 Whar. Cr. L. § 297; State v. Stimson, 4 
 Zabr. (N. J.) 478. 
 
 2. Cannon v. U. S., 116 U. S. 55; Sea- 
 gar V. Sligerland, 2 Caines (N. Y.), 219; 
 HoUis V. Wells, 3 Pa. L. J. 169; Holmes 
 V. Johnson, 42 Pa. St. 159. See Berck- 
 mans v. Berckmans, 16 N. J. Eq. 122, 17 
 N. J. Eq. 453; Inskeep v. Inskeep, 5 
 Iowa, 204. I 
 
 3. Defendant procured a divorce and 
 married again. The divorce was vacated 
 for fraud and want of jurisdiction. Held, 
 that he was guilty of adultery. State v. 
 Whitcomb, 52 Iowa, 85; State v. Good- 
 enow, 65 Me. 30; Com. v. Elwell, 2 Mete. 
 (Mass.) 190. See Com. v. Putnam, i 
 Pick. (Mass.) 136: Putnam v. Putnam, 8 
 Pick. (Mass.) 433; Com. v. Thompson, 6 
 Allen (Mass.), 591; State z;. Weatherby,. 
 43 Me. 258. 
 
 4. Whar. Crim. L. § 2666; State v. 
 Avery, 7 Conn. 267. 
 
 It is held not to be indictable in Penn- 
 sylvania. Smith V. Commonweath, 54 
 Pa. St. 209. 
 
 5. The man may be alone convicted, 
 although at the time the act was commit- 
 ted the woman was in such a state of 
 stupefaction as to be incapable of con- 
 sent. Com. V. Bakeman, 131 Mass. 577; 
 s. c, 141 Am. Rep. 248. 
 
 The court instructed the jury as fol- 
 lows: "To constitute the crime of adul- 
 tery as against the man, the consent of 
 the woman to the carnal intercourse is not 
 indispensable, but the offence may, as 
 against him, exist, though the connection 
 was effected by force and against her 
 will." Held, no error. State v. Dono- 
 van, 61 Iowa, 278; s. c, 4 Am. Cr. R. 25; 
 State V. Sanders, 30 Iowa, 582". 
 
 An action lies for criminal conversa- 
 tion, although the intercourse was had 
 by violence. Egbert v. Greenwalt, 44 
 Mich. 245; s. c, 38 Am. Rep. 260. See 
 State V. Tarr, 28 Iowa, 397. 
 
 Insanity on the part of the woman is 
 
 I C. of L.— 15 
 
 313 
 
Evidence, 
 
 ADULTERY. 
 
 Evidence,. 
 
 Evidence. — A husband or wife may testify against each other.^ 
 An actual marriage must be proved.** Evidence is admissi- 
 ble of improper familiarity and adultery between the parties, 
 both before and after the commission of the offence charged, 
 although it proves other and distinct offences.^ The pecu- 
 
 consent, and before the act of adultery, 
 must be proved. People v. Bennett, 39. 
 Mich. 208. -^The marriage maybe proved 
 by general repute. Com. v. Holt, I2L 
 Mass. 61. 
 
 The evidence of persons who wit- 
 nessed the marriage is competent to 
 prove the marriage. State v. Clark, 54. 
 N. H. 456; Com. V. Norcross, 9 Mass. 
 492; Com. V. Littlejohn, 15 Mass. 163. 
 It may be proved by the admission of 
 one of the parties. State v. Medbury, 8. 
 R. I. 543. See Cameron v. State, 14 Ala. 
 546; s. c, 48 Am. Dec. in; Cayford's 
 Case, 7 Greenl. (Me.) 57; Cook v. State, 
 
 11 Ga. 53; s. c. , 56 Am. Dec. 410. Compare. 
 Mills w. U. S., I Finn. (Wis.) 73; Siate 
 V. Timmens, 4 Minn. 325; State v. Rood, 
 
 12 Vt. 396. 
 Proof of Marriage — Marriage Certifi- 
 cate. — A statute providing for the pun- 
 ishment of adultery, and making a re- 
 corded certificate of marriage proof of 
 marriage for the purpose of the act, does 
 not exclude other proof of the marriage. 
 Where, in a trial of J. W. S. for 
 adultery, the record of a marriage cer- 
 tificate introduced in evidence shows a 
 marriage of J. S. to Rebecca Gibson, 
 the testimony of a witness that he was 
 present when defendant was married to 
 Rachel Gibson, in the year when, at the 
 place where, and by the person by whom, 
 the record shows the marriage was per- 
 formed, is admissible as tending to iden- 
 tify the parties named in the certificate. 
 Peoples'. Stokes, 12 Pac. Repr. (Cal.) i. 
 
 3. Stale V. Bridgman,49 Vt. 202: s. c, 
 24 Am. Rep. 124. See Thayer v. Davis, 
 38 Vt. 163; Slate V. Potter, 52 Vt. 33; 
 Slate V. Marvin, 35 N. H. 28; State v. 
 Wallace, 9 N. H. 515; State z/. Williams, 
 76 Me. 480; State v. Witham, 72 Me. 
 531; Gardner u. Madeira, 2 Yeates (Pa.) 
 466; Thayer v. Thayer, 101 Mass. in; 
 Com. V. Nichols, 114 Mass. 285; s. c, 19 
 Am. Rep. .346; Com. v. Merriam, 14 
 Pick. (Mass.) 518; Com. v. Morris, I 
 Cush. (Mass.) 391; Com. v. Lahey, 14 
 Gray (Mass.), gi; State v. Kemp, 87 N. 
 Car. 538; State v. Pippin, 88 N. Car. 
 646; State V. Butner, 76 N. Car. 118; 
 Cole V. State, 6 Baxt. (Tenn.) 239; Rich- 
 ardson V. State, 37 Tex. 346; Alsabrooks 
 V. State, 52 Ala. 24; Lawson v. State, 20 
 Ala. 65; s. c, 56 Am. Dec. 182; State v. 
 Way, 5 Neb. 283; ■ People v. Jenness, 5 
 
 a valid defence to an indictment for adul- 
 tery, Matchiu v. Matchin, 6 Pa. St. 332. 
 See State v, Donovan, 61 Iowa, 278; 
 s, c, 4 Am, Cr. R. 25; State v. Sanders, 
 30 Iowa, 582; People v. Barnes, 9 Pac, 
 Repr, (Idaho) 532; Stale v. Ellis, 74 Mo, 
 385; s. c, 41 Am. Rep. 321; Mercer v. 
 State, 17 Tex. App. 452; Alonzo v. 
 State, 15 Tex. App. 378; Com. v. Goo^i- 
 hue, 2 Mete. (Mass.) 193; People v. 
 Rouse, 2 Mich. 209; Wright v. State, 4 
 Humph, (Tenn.) 196; Stephen v. State, 11 
 Ga. 225; Burk v. State, 2 Harr. & J, 
 (Md.)426. Compare Noble v. State, 22 
 Ohio St. 541. 
 
 1. Roland v. State, 9 Tex. App, 277; 
 s,c,,35 Am. Rep. 743; State v. Bennett, 31 
 Iowa, 25; State v. Bridgman, 49 Vt. 202; 
 s. c, 24 Am. Rep. 124; State v. Marvin, 
 35 N. H. 28; Parsons u. People, 21 
 Mich. 509 Compare State v. Welch, 26 
 Me. 30; Mills V. U. S., I Pinn. (Wis.) 73, 
 
 Where a wife testifies before the grand 
 jury to her husband's adultery, supposing 
 that she is obliged to do so, but not intend- 
 ing to prefer charges of adultery against 
 him, this is not a complaint by her 
 against her husband. State v. Donovan, 
 61 Iowa, 278; s. c, 4 Am. Cr. R. 25. 
 
 Husband and wife are incompetent to 
 disprove sexual intercourse between 
 themselves in order to raise a presump- 
 tion ihat the wife's child is illegitimate. 
 Egbert v. Greenwalt, 44 Mich, 245, o. c, 
 
 38 Am, Rep, 260. See Bastardy, 
 Under an indictment against two per- 
 sons for living together in adultery, the 
 husband of the woman is not a compe- 
 tent witness for the man, when both are 
 on trial together under the plea of not 
 guilty. Birge v. State, 78 Ala. 435. 
 
 .2. Hutchiiis w. Kimmell, 31 Mich. 126; 
 s. c.,i8 Am. Rep. 164; People v. Bennett, 
 
 39 Mich. 20S; see Miner v. People, 58 
 111. 59; Com. V. Norcross, 9 Mass. 492; 
 Com. V. Littlejohn, 15 Mass. 163; People 
 V. Humphrey. 7 Johns. (N. Y.) 314; Fen- 
 ton V Reed, 4 Johns. (N. Y.) 52; s. c, 4 
 Am. Dec. 244; State v. Roswell. 6 Conn. 
 446; Kibby v. Rucker, i A. K. Marsh 
 (Ky.), 391; Wood V. State, 48 Ga, 192; 
 Buchanan v. State, 55 Ala, 154, Compare 
 Forney v. Hallacher, 8 Serg. & R. (Pa.) 
 159: s. c, II Am. Dec. 590. 
 
 Where the accused was married to a 
 woman under the legal age, her consent 
 10 the marriage on arriving at the age of 
 
 314 
 
Evidence. 
 
 ADULTERY. 
 
 Evidence. 
 
 niary circumstances of the parties at the time of the com- 
 mission of the offence may be proved in an action for criminal 
 
 Mich. 305; Searls v. People, 13 111. 599; 
 Lovell V. State, 12 Ind. 18. Compare 
 State 7/. Donovan, 61 Iowa, 278; s. c, 4 
 Am. Cr. R. 25; State -v. Crowley. 13 Ala. 
 172; State V. Jolly, 3 Dev. & B. (N. Car.) 
 no; s. c, 32 Am. Dec. 656; State v. 
 Bates, 10 Conn. 372. 
 
 Upon an indictment for living in an 
 open state of adultery on a certain day 
 and on divers other days and times since 
 said date to the day of the finding of the in- 
 dictment, evidence of acts anterior to such 
 tiqpe are admissible in evidence as tend- 
 ing to illustrate or explain similar acts 
 within the period alleged in the indict- 
 ment, or to corroborate testimony of 
 such latter acts, but not to convict of a 
 substantive offence committed anterior 
 to such period. Where there has been 
 a conviction upon such an indictment, 
 and there is no evidence of a living in an 
 open state of adultery within the limited 
 period, but there is proof of such a liv- 
 ing about a year prior to the first day of 
 such period, a new trial should be grant- 
 ed, the introduction of such evidence 
 having been properly excepted to. Bre- 
 valdo v. State, 21 Fla. 789. 
 
 Acts of adultery are held admissible, 
 whether occurring before or after the act 
 charged, for the purpose of showing an 
 adulterous disposition. Thayer v. Thay- 
 er, loi Mass. III. 
 
 In Gardner v. Maderia, 2 Yeat. (Pa.) 
 446, an action of crim. con., where the 
 injury was stated to have been commit- 
 ted within certain days, it was held that 
 proof of improper freedoms must be first 
 iiad within the limited time. It is laid 
 down that though time was no more a 
 material part of the complaint than of a 
 contract, yet that where a trespass is al- 
 leged to have been committed within cer- 
 tain days it would be a surprise on the 
 defendant not to confine the proof to the 
 times laid (citing BuUer Ni. Pri. 86), but 
 that, after laying a reasonable ground to 
 infer an improper connection between the 
 parties within the limited period, the court 
 will be more liberal afterwards in receiv- 
 ing other evidence of indecent conduct 
 at different times tending to show the 
 criminal views and acts of the parties. 
 There has been no reasonable ground 
 laid down to infer a living in an open 
 state of adultery from evidence as to the 
 period named in this indictment. 
 
 In People v. Jenness, 5 Mich. 322, 
 after arguing in favor of the admissibil- 
 ity of evidence of a prior act of adultery 
 as tending to prove the one relied on, it 
 
 is said : "If offered as proof of sub- 
 stantive offences on which a conviction 
 might be had in the case, it should of 
 course be excluded; but as it was not of- 
 ferred for this purpose and could not be 
 allowed to have such effect, we can see no 
 objection to its reception." 
 
 Under Michigan statute, a prosecution 
 must be instituted within a year after the 
 offence, evidence of acts are inadmissible 
 if they occurred more than a year before 
 the commission of the adultery, unless 
 they are shown to belong to a continuous 
 series of improprieties. People z). Davis, 
 52 Mich. 569. So acts committed two 
 years before are too remote to be put in 
 evidence. But acts within* short time 
 before and very soon after the act com- 
 plained of may be shown if establishing 
 a continuous intimacy. People v. Hen- 
 drickson, 53 Mich. 525. 
 
 In a prosecution for adultery, acts prior 
 and also subsequent to the act charged in 
 the indictment, when indicating a con- 
 tinuousnessof illicit intercourse, are ad- 
 missible in evidence for the purpose of 
 showing the relation and mutual disposi- 
 tion of the parties. State v. Witham, 72 
 Me. 531. 
 
 In fornication and adultery, evidence 
 of acts anterior to the two years preced- 
 ing the indictment is competent to be 
 considered by the jury in connection 
 with evidence of other acts of a like na- 
 ture within the two years. State v. Pip- 
 pin, 88 N. Car. 646; State w. Kemp, 87 
 N. Car. 538. 
 
 Evidence as to acts and instances of 
 intercourse prior to the time limited by 
 statute is admissible in connection with 
 other evidence, as tending to show that 
 the defendant was guilty of acts of in- 
 tercourse admitted to have occurred 
 within the time covered by the indict- 
 ment. State V. Potter, 52 Vt. 33. 
 
 Evidence having been adduced tending 
 to show an adulterous intercourse be- 
 tween the parties during the period cov- 
 ered by the indictment, proof of acts or 
 conduct prior to that time may be re- 
 ceived, without regard to the sufficiency 
 of the other evidence to authorize a con- 
 viction. Cross. V. State, 78 Ala. 430. 
 
 Where, contrary to the rule of law, in 
 a prosecution for adultery, evidence was 
 admitted of an adulterous act subsequent 
 to the one charged in the indictment, the 
 error was cured by the district attorney's 
 withdrawing from the jury the evidence 
 of such subsequent act. State v. Dono- 
 van, 61 Iowa, 278; s. c, 4 Am. Cr. R. 25. 
 
 215 
 
Practice. 
 
 AD UL TER Y—AD VANCEMENTS. 
 
 Definition, 
 
 conversation.* The plaintiff's connection with other women 
 at any time after marriage and before trial may be proved in 
 mitigation of damages.** Evidence is competent to show the repu- 
 tation for chastity of the woman.* 
 
 The sex of the parties, if present in court, may be inferred by 
 the jury from their dress and general appearance.* Evidence of 
 the particeps criminis is admissible.** It is competent to prove 
 that the woman was delivered of. a child about nine months after 
 offence charged.® An averment in an indictment that the action 
 was commenced by the wife of the defendant is not presumptive 
 of its truth ; it must be proved. *" The court has discretionary 
 power to grant a bill of particulars.* A prosecution for adultery 
 should be discontinued where the only person competent to make 
 complaint asks leave to withdraw it.® 
 
 ADVANCEMENTS. See Legacies ; Wills. 
 
 5- 
 
 When Value ■ of Advance- 
 ment is to be computed — Inter- 
 est. 
 
 6. Changes of Gifts to Advance- 
 ments, andviceversa — Change 
 of Debts, etc. 
 
 7. Miscellaneous. 
 
 1. Definition. — An advancement is an irrevocable gift by. a pa- 
 rent to a child, in anticipation of such a child's future share of 
 the parent's estate.^" Advancements are governed by the statutes 
 of distribution. 11 
 
 1. Definition. 
 
 2. Of What an Advancement 
 
 may Consist. 
 
 3. Presumption as to Advance- 
 
 ments. 
 
 4. English and American Stat- 
 
 utes and their Construction. 
 
 Proof of Former Conviction. — The record 
 of a former conviction is not admissible 
 as evidence without the indictment on 
 vhich it was founded, so that the court 
 may see that the offence was committed 
 with the same person; and if the indict- 
 ment is not produced, the court cannot 
 consider the former conviction for any 
 purpose. Cross v. Slate. 78 Ala. 430. 
 
 1. Peters v. Lake, 66 111. 206; s. c, 16 
 Am. Rep. 593. 
 
 Direct proof of adultery, that is, evi- 
 dence of eye-witnesses, is not required, 
 for such is the'nature of the offence, and 
 the secret and clandestine manner in 
 which it is committed, that such proof is 
 in most cases unattainable; yet where it 
 is sought to be inferred from circum- 
 stances, they must lead to the conclusion 
 of guilt by fair and necessary inference. 
 Kremelberg v. Kremelberg. 52 Md. 553. 
 
 2. Shattuck v. Hammond, 46 Vt. 466; 
 s. c, 14 Am. Rep. 631; Smith v. Mas- 
 ten, 15 Wend. (N. Y.) 270. 
 
 8. Com. u. Gray, I2g Mass. 474; s. c, 
 37 Am. Rep. 378; Blackman v. State, 36 
 Ala. 295. 
 
 4. White V. State, 74 Ala. 31. 
 
 5. State V. Colby, 51 Vt. 291; State v. 
 Crowley, 13 Ala. 172. 
 
 A man and woman cannot be jointly 
 convicted of a single act of adultery, 
 upon the admission by one of a single 
 act of adultery, committed at one time, 
 and an admission by the other of a dif- 
 ferent act of adultery, committed at a 
 different time. Com. v. Cobb, 14 Gray 
 (Mass), 57. 
 
 6. Com. V. 0'Connor,^07 Massi 219. 
 
 7. Slate V. Henke, 58 Iowa, 457. 
 
 Where a wife, in response to a sub- 
 poena, testifies before the grand jury to 
 her husband's adultery, supposing that 
 she is obliged to do so, but not intending 
 to prefer charges of adultery against him, 
 this is not a complaint by her against her 
 husband. State v. Donovan, 61 Iowa, 
 278; s. c, 4 Am. Cr. R. 25. 
 
 8. Tilton V. Beecher, 59 N. Y. 176; 
 s. c, 17 Am. Rep. 337; People v. Davis, 
 52 Mich. 569. 
 
 9. People V. Dalrymple, 55 Mich. 519. 
 
 10. Yundt's App., 13 Pa. St. 575. 
 
 11. The section of the English statute 
 on this subject is derived, as regards 
 goods and chattels, from the ancient cus- 
 tom of London, of the province of York, 
 and of Scotland; and as regards lands 
 descending in coparcenary, from the com- 
 mon law of hotchpot. 2 Bl. Com. 517. 
 
 216 
 
What are Advancements. ADVANCEMENTS. Gifts. 
 
 2. Of what an Advancement may consist. — Money expended in the 
 maintenance of a son is not an advancement, nor in binding him 
 apprentice, nor in his education, nor for his travels.^ Such ex- 
 penditures are not prima facie an advancement, but the presump- 
 tion may be rebutted, as when it is shown that a considerable sum 
 is advanced as a premium for instruction, and not merely as a com- 
 pensation for maintenance.* Gifts of inconsiderable sums of 
 purse money and other trivial presents (such as a gold watch or 
 wedding clothes) are not advancements.* Presents for the pur- 
 pose of pleasure or amusement are not advancements, aliter in 
 case of gifts for the purpose of making profit.* An advancement 
 may consist of an annuity, and its value is to be computed at the 
 date of the grant. ^ A contingent portion may be an advance- 
 ment ; clearly so, if the contingency has happened ; also even 
 while contingent, if it can be valued.® The contingency must be 
 so limited as necessarily to arise within a reasonable time. 
 
 A life-insurance policy taken out in the name of a child may be 
 an advancement.'' 
 
 The purchase of an office or benefice in England has been held 
 advancement.® 
 
 Neither a restriction upon alienation, nor- the reservation of a 
 life estate, nor the reservation of a right to revoke the gift, indi- 
 cates an intention that the gift shall be other than an advance- 
 ment.^ The provision must be complete in the father's lifetime, 
 and so cannot be made by will. But it does not have to take 
 place in enjoyment in his lifetime.^" 
 
 The doctrine of advancements is said to 5. Kircudbright v. Kircudbright, 3 
 
 be derived from the collatio bonorum of Ves. 51; Boyd i/. Boyd, L. R. 4 Eq, Cas, 
 
 the imperial law (Dig. 37.6, l); hence the 305. 
 
 equalizing of advancements is sometimes 6. 2 P. Wms. 442. 449; Knight v. Oli- 
 
 called their collation, especially in Loui- ver, 12 Gratt. (Va.) 33. 
 
 siana, where this branch of the law 7. Rickenbacker v. Zimmerman, lO S. 
 
 forms the subject of minute regulation. Car. no. 
 
 See Rev. Civ. Code of La. of 1875, art. It was held in this case that under the 
 
 1227-128S; Destrehan v. Destrehan, 16 South Carolina statute, requiring the val- 
 
 Martin (La.), 557. ue of advancements to be computed at 
 
 1. Cooper V. Wray, 3 Strobh. Eq. (S. the death of the intestate, the value of 
 Car.) 185; Riddle's Est., ig Pa. St. 431; the advancement was to be computed by 
 Miller's App. , 40 Pa. St. 57; Bowles v. getting the value of such a policy at the 
 Winchester, 13 Bush (Ky. 1, i; Bruce w. death of the intestate with the expecta- 
 Griscom, 9 Hun (N. Y.), 280; 70 N. Y. tion of life of the intestate when the pol- 
 612; Bradsher v. Cannady, 76 N. Car. icy was taken out, and that the premiums 
 445. paid were to be added on without interest. 
 
 2. 2 Roper, Husb. and Wife, 13. The premiums were compared to mon- 
 
 3. 3 P. Wms. 317, note to Pusey v. ey spent in improving real estate which 
 Desbouverie; Elliott v. Collier. I Ves. has been given as an advancement. 
 
 Sr. 16, 3 Alk. 528; Mitchell, 8 Ala. 414; 8. Henderson v. Rose, 3 P. Wms. 
 
 Fennell v. Henry, 70 Ala. 484; Sanford 317, note to Pusey v. Desbouverie; Nor- 
 
 V. Sandford, 61 Barb. (N. Y.) 293, 5 Lans. ton v. Norton. 3 P. Wms. 317, note; Kir- 
 
 486; Meadows ». Meadows, II Ired. (N. cudbriqht v. Kircudbright, 8 Ves. 63. 
 
 Car.) 148; King's Est., 6 Whar. (Pa.) 370. 9. Graves v. Spedderi, 46 Md. 527; 
 
 4. See Ison v. Ison, 5 Rich. Eq. (S. Hughey v. Eichelberger, 11 S. Car. 36. 
 Car.) 15; Shiver v. Brock. 2 Jones Eq. 10. Edwards v. Freeman, 2 P. Wms. 
 (N. Car.) 137; M'Caw v. Blewit, 2 Mc- 440; Twisden w. Twisden, 9 Ves. 425, 462; 
 Cord Cb. (S. Car.) 90; Nettleton v. Nettleton, 17 Conn. 542. 
 
 217 
 
Fresumptions. 
 
 AD VAN CEMENTS. 
 
 Statutes. 
 
 3. Presumptions as to Advancements. — Between a loan, gift, and 
 advancement, where the amount is substantial, the presumption is 
 in favor of an advancement.^ Especially is this the case when the 
 child is starting out in life,* and living apart from the parent after 
 marriage.' It has been held that a conveyance of land may be 
 shown by parol to have been extended as- an advancement.* If a 
 father purchase land in the name of his son, no resulting trust arises, 
 but there is a presumption of an advancement.* And so in case of a 
 voluntary conveyance by a parent to a child.* There is no need of 
 an express agreement by the child that the gift is an advancement.' 
 
 So.also, it is finally decided in England 
 that the youngest son receiving lands un- 
 der the custom of Borough-English does 
 not have to bring them into hotchpot. 
 
 1. Mitchell V. Mitchell,' 8 Ala. 414; 
 Clements v. Hood, 57 Ala. 459; Butler 
 V. Iris. Co., 14 Ala. 777; Hatch v. 
 Straight, 3 Conn. 31; Brown v. Burke, 
 22 Ga. 574; Holliday v. Wingfield, 59 
 Ga. 206; Grattan v. Grattan, 18 111. 167; 
 Bay I/. Cook, 31 111. 336; Selleckz/. Sel- 
 leck, 107 111. 389; Stanley v. Brannoii, 
 6 Blackf. (Ind.) 193; Hodgson v. M&cy; 8 
 Ind. 121; Dillman v. Cox, 23 Ind. 440; 
 Hayden v. Burch. 9 Gill (Md.), 79: Parks 
 V. Parks, 19 Md. 323; Gravest'. Spedden, 
 46 Md. 527; Wilson v. Beauchamp, 50 
 Miss. 24; Gordon w. Barkelew, 6 N. J. 
 Eq. 94; Melvin v. Bullard, 82 N. Car. 
 33; HoUister v. Attmore, 5 Jones Eq. 
 (N. Car.) 373; Tremper v. Barton, 18 
 Ohio, 418 ; Creed v. Lancaster Bank, i 
 Ohio St. i; Sampson v, Sampson. 4 S. & 
 R. (Pa.) 333; Dutch's App., 57 Pa. St. 
 461; Weaver's App. ,63 Pa. St. 309; Dudley 
 V. Bosworth,io Humph. (Tenn.)9; John- 
 son V. Patterson, 13 Lea (Tenn.), 626; 
 Rains v. Hays, 6 Lea (Tenn.), 303; Wat- 
 kins V. Young, 31 Gratt. (Va ) 84; Ast- 
 reen v. Flanagan, 3 Edw. Ch. (N. ,Y.)279. 
 
 2. HoUister v. Attmore, 5 Jones Eq. 
 (N. Car.) 373- 
 
 3. Holliday v. 'Wingfield, 59 Ga. 206. 
 
 4. Kingsbury's App., 44 Pa. St. 460; 
 Rockhill V. Spragjgs, 9 Ind. 30, 68 Am. 
 Dec. 607. 
 
 6. Hummel v. Hummel, 80 Pa. St. 420; 
 Dutch's App., 57 Pa. St. 461; Phillips v. 
 Gregg, 10 'Watts (Pa.) 158; James v. 
 James, 43 Ark. 301; Robinson v. Robin- 
 son, 45 Ark. 481; Wormley v. Wormley, 
 98 111. 544; Maxwell -u. Maxwell, 109 111. 
 588; Dille V. Webb, 61 Ind. 85; Higdon 
 V. Higdon, 57 Miss. 264. If the father 
 pays any considerable portion of the 
 price, there is an advancement /ru tanto. 
 Sweet V. Northrup, 12 N. Y. Weekly Dig. 
 
 377- 
 
 6. Ray v. Leper. 65 Mo, 470; Harper 
 V. Harper, 92 N Car. 300. But where a 
 
 consideration is recited in a deed in the 
 usual form, the presumption is against 
 an advancement. Miller's App., 107 Pa. 
 St. 221. But notwithstanding such re- 
 cital, the presumption is in favor of an 
 advancement when a parent conveys to a 
 child without actually receiving any con- 
 sideration. Sanford v. Sanford, 61 Barb. 
 293, 5 Lans. 486. But mere inadequacy 
 of consideration will not make the sale 
 an advancement. Merriman v. Lacefield, 
 4 Heisk. 209. A consideration of natu- 
 ral love and affection raises a presump- 
 tion of an advancement. Loit v. Kaiser, 
 61 Tex-. 665. A conveyance from a pa- 
 rent to his son is not an advancement if 
 made in consideration of services ren- 
 dered by the son, for which the parent 
 was under moral obligation to pay. Mur- 
 rei V. Murrel, 2 Strob. Eq. (S. Car.) 148, 
 49 Am. Dec. 664. 
 
 7. Nesmith v. Dinsmore, 17 N. H. 515. 
 Treadwell v. Cordis, 5 Gray (Mass.), 
 341. 'Where a debt is paid by the father 
 for the son, it will be presumed to be 
 an advancement. Johnson v. Hoyle, 
 3 Head (Tenn.), 56. Money paid to a 
 third party for the son's benefit may 
 be an advancement. Johnson v. Evans, 
 8 Giir(Md.), 155, 50 Am. Dec. 669, 
 Held, in Holliday v. Wingfield, 59 Ga. 
 206, that under the Code of Georgia it is 
 not necessary that the child accept the 
 provision as an advancement, if intended 
 by the parent as such. The statutes in 
 Massachusetts, Maine, and 'Vermont re- 
 quire as evidence of an advancement 
 that there shall be a declaration to that 
 effect in the gift or grant of the parent 
 or a charge to that effect by the intestate, 
 or an acknowledgment in writing' by the 
 child. See Gen. Stat. 'Mass. c. 91, §8. 
 Hartvfell v. Rice, i Gray (Mass.), 587; 
 Bigelow V. Poole, 10 Gray (Mass.), 104; 
 Barton v. Rice, 22 Pick. (Mass.) 508; 
 Ashley's App. 4 Pick.- (Mass.) 24; Os- 
 good V. Breed, 17 Mass. 358; Bullard v. 
 Bullard, 5 Pick. (Mass.) 527; Bulkeley v. 
 Noble, 2 Pick. (Ma^s.) 540; Porter v. 
 Porter, 51 Me. 376; Brown v. Brown, 16 
 
 318 
 
Evidence. 
 
 AD VANCEMENTS. 
 
 Loans. 
 
 An agreement that an advance shall bar any further claim by the 
 heir is valid. ^ If a deed of gift declares that the gift is not to be 
 .accounted for in the distribution of the estate, it is not an 
 .advancement, although expressly declared to be such in the same 
 instrument.* 
 
 If an account is stated and interest charged, the presumption is 
 in favor of a debt,* If a parent receives such evidence of indebt- 
 edness as a bond or promissory note, or if he becomes surety for 
 the child, the presumption is in favor of a debt.* 
 
 A fortiori, a loan to a son-in-law cannot be treated as an ad- 
 vancement to the daughter.^ But it has been held that an advance- 
 ment to a son-in-law may be an advancement to the daughter.^ 
 
 1. Kershaw v. Kershaw, 102 111. 307; 
 Galbraith v. McLain, 84 111. 379; Nichol- 
 son V. Caress, 59 Ind. 39. But see 
 Needles v. Needles, 7 Ohio St. 432, 70 
 Am. Dec. 85. 
 
 2. James v. James, 76 N. Car. 331. 
 
 3. Levering v. Rittenhouse, 4 Whar. 
 (Pa.) 130; Harris's App., 2 Grant (Pa.), 
 304. But this presumption may be re- 
 butted. 
 
 4. Grey w. Grey, 22 Ala. 233; Fennell 
 V. Henry, 70 Ala. 484; West v. Bolton, 
 23 Ga. 531; Batton v. Allen, 5 N. J. Eq. 
 gg; High's App., 21 Pa. St. 283; Roland 
 V. Schrack, 2g Pa, St. 125; Miller's App., 
 31 Pa. St. 337; Morr's App., 80 Pa. St. 
 427; Jones's Est., 2g Pitts. L. J. (Pa.) 
 89;. Bruce v. Griscom (9 Hun, 280). 70 
 N. Y. 612; Vaden v. Hance, i Head i 
 (Tenn.). 300; House v. Woodard, 5 Coldw. 
 (Tenn.) ig6. But this presumption may 
 be rebutted. Cutliff v. Boyd, 72 Ga. 302; 
 Peabody v. Peabody, 59 Ind. 556; Harris 
 V. Harris, 6g Ind. 181; Bragg v. Stan- 
 ford, 82 Ind. 234; Dilley v. Love. 61 Md. 
 603. The child may show that the state- 
 ment was given to the father, not with 
 the view that repayment might be de- 
 manded, but as a memorandum. John- 
 son V. Ghost, II Neb. 414. But it has 
 been held that verbal declarations of the 
 parent that money for which he held a 
 bond or note against a child was intended 
 as an advancement are insufficient to es- 
 tablish it. Merkel's App., 8g Pa. St. 340. 
 An existing indebtedness of the parent 
 to the child raises a presumption of an in- 
 tention to pay the debt rather than to ad- 
 vance the child. Haglar v. McCombs, 
 66 N. Car. 345. 
 
 5. Seagrist's App.. 10 Pa. St. 424; Whe- 
 lan's App., 70 Pa. St. 410. 
 
 6. Dilley v. Love. 60 Md. 603; Stewart 
 V. Pattison, 8 Gill (Md.), 46; Bridgers v. 
 Hutchins, 11 Ired. (N. Car.) 68; Wilson 
 V. Wilson. 18 Ala. 176; Lindsay tS. Piatt, 
 9 Fla. 150. It was held in Stayner v. 
 Bower, 42 Ohio St. 314, that where a 
 
 "Vt. 197; Adams v. Adams, 22 Vt. 50; 
 Weatherhead v. Field, 26 Vt. 665. And 
 in these States it has been held that no 
 
 :subsequent parol declarations will con- 
 trol the original intentions of the party 
 as represented by charges on books or 
 •entries upon memoranda, etc. See Hatch 
 -V. Straight, 3 Conn. 31; Partridge -u. 
 Havens, 10 Paige (N. Y.), 618; Johnson 
 ■V. Belden, 20 Conn. 322; Osgood v. 
 Breed, 17 Mass. 359; Barton v. Rice, 22 
 Pick. (Mass.) 508; Brown v. Brown, 16 
 Vt. 205. For proof of advancement re- 
 quired in Rhode Island, see Law v. 
 
 \ Smith, 2 R. I. 244; Sayles v. Baker, 5 
 R. I. 457; Mowrey v. Smith, 5 R. I. 
 255. In some States it has been held 
 that the declarations of the donor 
 before and after and at the time of the 
 transaction, and the admissions of the 
 donee, are admissible in evidence to 
 show the intention. Mitchell v. Mitchell, 
 * Ala. 414; Autrey v. Autrey, i Ala. 
 Sel. Cas. 542; Butler v. Ins. Co., 14 Ala. 
 777; Merrill v. Rhodes, 37 Ala. 449; 
 Smith a. Smith, 21 Ala. 761; Fennell v. 
 Henry, 70 Ala. 484; Phillips v. Chappel, 
 16 Ga. 16; Dillman v. Cox, 23 Ind. 440; 
 Woolery v. Woolery, 29 Ind. 249; Mid- 
 •dleton V. Middleton, 31 Iowa, 151; Cecil 
 ■V. Cecil, 20 Md. 153; Graves v. Spedden, 
 46 Md. 527; King's Est., 6 Whart. (Pa.) 
 370; Christy's App., i Grant (Pa.). 369; 
 Lawson's App., 23 Pa. St. 85; Kingsbury's 
 App., 44 Pa. St. 460; Morris v. Morris, 
 9 Heisk. (Tenn.) 814; Watkins v. Young, 
 31 Gratt. (Va.) 84. But it has also been 
 held that such declarations made to 
 third persons are not of themselves suffi- 
 cient to establish the fact of advance- 
 ments. Homiller's Est., 17 W. N. C. (Pa.) 
 238; Ray V. Loper, 65 Mo. 470; Weather- 
 wax V. Woodin. 20 Hun (N. Y^), 518. 
 And so it has been held that advance- 
 ments cannot be established by mere evi- 
 dence in books without proof alitmde. 
 Marsh v. Brown, 18 Hun (N. Y.), 319; 
 Benjamin v. Dimmick, 4 Redf. (N. Y.) 7. 
 
 319 
 
Construction 
 
 AD VANCEMENTS. 
 
 of Statntes, 
 
 And a gift to a son-in-law soon after marriage is presumed to be 
 an advancement.^ 
 
 4. Statutes and their Construction. — The doctrine of advancements 
 is now fqunded wholly upon statute,* and has been decided t® 
 apply only to the case of actual intestacy of the parent.' The 
 American statutes in this connection generally use the word " in- 
 testate."* 
 
 Independently of the statutes, a will may direct that debts or 
 gifts shall be taken as advancements and may direct what value 
 is to be put on the advancements.^ But it is not sufficient to 
 prevent a liability to account that the intestate merely believed 
 that he had advanced his distributees equally, if in fact he had' not 
 done so.* Where a testator directs that advances charged against 
 children shall be deducted from their shares, an advance which is 
 
 son-in-law receives money atjd property 
 as advancements for his wife, he bolSs 
 the same for his wife; and upon the 
 death of the father, when the amount of 
 her distributive share is ascertained, she 
 has a right to compel her husband to ac- 
 count for and pay to her such money and 
 property, and she may demand and col- 
 lect her share in full of the administrator. 
 And in such case when she elects to sue 
 the administrator and compels him to 
 pay her the distributive share in full, in- 
 cluding the amount of such advance- 
 ments, the administrator by operation of 
 law is subrogated to the rights and reme- 
 dies of the wife against the husband. 
 
 Where land was conveyed to a son-in- 
 law and afterwards sold on execution 
 against him, it was held that the wife 
 may defend in ejectment by showing 
 that it was an advancement, and that 
 such proof is not forbidden by the Penn- 
 sylvania Statute of Frauds of 1856. My- 
 ers V. Leas, loi Pa. St. 172. 
 
 1. Rogers v. Mayer, 59 Miss. 524. It 
 has been said that a conveyance of land 
 to a son-in-law is not an advancement in 
 the absence of evidence that it was so in- 
 tended. Rains v. Hays. 6 Lea(Tenn.), 
 303. See Towles v. Roundtree, 10 Fla. 
 299; Barber v. Taylor, g Dana (Ky.), 84; 
 Baker v. Leathers, 3 Ind. 558. 
 
 2. Marshall v. Rench, 3 Del. Ch. 239. 
 
 3. Even though there is a surplus un- 
 disposed of by will. Walton v. Walton, 
 i4Ves. 324; Huggins v. Huggins. 71 Ga. 
 66; Marshall v. Rench, 3 Del. Ch. 239; 
 Turner's App., 48 Mich. 369, 52 Mich. 398; 
 De Caumont v. Bogert, 36 Hun (N. Y.), 
 382; Clark V, Kingsley. 37 Hun (N. Y.), 
 246; Brown v. Brown, 2 Ired. Eq. (N.Car.) 
 309; Richmond v. Vanhook, 3 Ired. Eq. 
 (N. Car.) 581; Jerkins v. Mitchell. 4 
 Jones Eq. (N. Car.) 207; Newell's Will, 
 I Browne (Pa.), 311; Snelgrove v. Snel- 
 
 grove, 4 Desaus. (S. Car.) 274; Newman 
 V. Wilbourne, I Hill Ch. (S. Car.) 10; 
 Wilson V. Miller, i Pat. & H. (Va.) 353; 
 Allen V. Allen, 13 S. Car. 512. Compare 
 Pearce v. Cleaves, 10 Yerg. (Tenn.) 
 359. 
 
 4. In the Revised Statutes of N. Y., 
 in speaking of advancements in relation 
 to the distribution of personal estates, 
 the word " deceased " is substituted for 
 "intestate;" whereas in relation to the 
 descent of real estate, the word "intes- 
 tate" is retained. Rev. Stat. (1882) 2213, 
 2305; Hawley v. James, 5 Paige (N. Y.), 
 450. In Thompson v. Carmichael, 3 
 Sand. Ch. (N. Y.) 120, held, in reference to 
 realty, that bringing into hotchpot is nut 
 required unless there is a total intestacy. 
 The provision of the Kentucky statute 
 on this subject applies where there has 
 been a partial disposition of the estate 
 by will. Bowles v. Winchester, 13 Bush 
 (iCy.), I. Under the New Jersey statute 
 it has been held that advancements in 
 money can have no effect upon a son's 
 share of real estate descended. Havens 
 V. Thompson, 23 N. J. Eq. 321. 
 
 8. Bacon v. Gassett, 13 Allen (Mass.), 
 334; Hall V. Davis, 3 Pick. (Mass.) 450; 
 Hawley v. James, 5 Paige (N. Y.), 450; 
 Manning v. Manning, 12 Rich. Eq. 
 (S.Car.)4io; Brewton j/. Brewton, 30 Ga. 
 416; Nolan V. Bolton, 25 Ga. 352; Law 
 rence, v. Lindsay, 7 Hun (N. Y.). 641: 
 Eisner v. Koehler, i Demarest (N. Y), 
 277. See McClintock's App., 58 N. H. 
 152. Where a will provided that ad- 
 vancements were to be deducted, and 
 a subsequent codicil revoked tlie devise 
 to one son and gave his share to the 
 daughter-in-law, wife of said son; it was 
 held that she took it charged with the 
 advancements to the son. Buchler v. 
 Fairlamb, 100 Pa. St. 385. 
 
 6. Andrews v. Halliday, 63 Ga. 263. 
 
 320 
 
Childien, 
 
 ADVANCEMENTS. ' 
 
 Other Descendants.. 
 
 not so charged is not to be deducted.^ Evidence is admissible 
 that the charges are false. or excessive, or that the sum charged 
 was repaid before the testator's death.* 
 
 In England where primogeniture exists, the statute provides 
 that no child of the intestate except his heir-at-law who shall have 
 any estate in land by the settlement of the intestate, or who shall 
 be advanced by the intestate in his lifetime by pecuniary portion 
 equal to the distributive shares of the other children, shall partici- 
 pate with them in the surplus ; but if the estate so given to such 
 child by way of advancement be no equivalent to their shares,, 
 then that such part of the surplus as will make it so shall be 
 allotted to him or her. In the United States advancements da 
 not in general need a separate consideration in the case of real 
 estate. 
 
 Under the English statute the doctrine of advancements is held 
 to apply to fathers only.^ In this country it doubtless applies 
 to mothers also.* 
 
 Of course the doctrine does not apply to a wife.' Nor are 
 children to bring advancements into hotchpot for the benefit of 
 the widow.® 
 
 The English statute and most of the American statutes use the 
 term child.'' Where grandchildren take per capita their shares 
 
 1. Sayre v. Sayre, 32 N. J. Eq. 61. 
 Where certain sums were charged on the 
 debit side of the books, and other entries 
 were made on the credit side so as to 
 balance the debits, and there was evi- 
 dence to show that the intention was to 
 cancel the charges, it was held that the 
 entries might have that effect. Lawrence 
 V. Lawrence, 4 Redf. (N. Y.) 278. 
 
 2. Hoak V. Hoak, 5 Watts (Pa.), 80; 
 Musselman's'Est., 5 Watts (Pa.), g. 
 
 3. Holt w. Frederick, 2 P. Wms. 356, 
 2 Eq Cas. Abr, 446. See Benneto. Ben- 
 net, Law Rep. 10 Chan. Div. 474, 
 
 4. Murphy v. Nathans, 46 Pa. St. 508 ; 
 Daves v. Haywood, i Jones Eq. (N. 
 Car.) 253; Kintz v. Friday, 4 Demarest 
 (N Y.), 540. 
 
 5. Greiner's App., 103 Pa. St. 8g. 
 
 6. Miller's Est., 2 Brewst. (Pa.) 355; 
 Murray's Est., 2 Pears. (Pa.) 473; Jackson 
 z/. Jackson, 28 Miss. 674, 64 Am. Dec. IT4; 
 Ward V. Lant, Prec. in Ch. 182: Gib- 
 bons V. Count, 4 Ves. 850; Kircudbright 
 V. Kircudbright, 8 Ves. 51; Porter v. Col- 
 lins, 7 Conn. I ; Logan v. Logan, 13 
 Ala. 653; Andrews v. Hall, 15 Ala. 
 85; May V. May, 15 Ala. 177; Bea- 
 vors V. Winn, 9 Ga. i8g ; Wright v. 
 Wright, Dudley (Ga.), 251. This is ex- 
 pressly provided by statute in some 
 States; e.g., see Gen, Stat, of Mass.. c. 
 94, § 17. In Davis v. Duke, i Taylor 
 (N. Car.), 213, it was held under the North 
 
 Carolina statute of 1784 that advance- 
 ments are to be brought into hotchpot 
 for the benefit of the widow. See also 
 Credle v. Credle, Busbee, 225. While in 
 Tennessee the contrary was held under 
 the same statute. Brunson v. Brunson, 
 I Meigs, 630. 
 
 7. Illegitimate children are covered 
 by the provision. Page v. Page, 8 N. H. 
 202. The statutes of Massachusetts, 
 Maine, Vermont, and Kentucky have 
 been held to apply equally to grandchil- 
 dren. See Dilley v. Love, 61 Md. 603. It 
 is declared in New York that every es- 
 tate or interest given by a parent to. a de- 
 scendant by virtue of a beneficial power, 
 or of a power in trust with a right' of se- 
 'ection, shall be deemed an advancement. 
 Beebe v'. Estabrook, 79 N. Y. 246; N. Y. 
 Rev. Stat. (1882), 2213. 2305. In Ohio 
 the provision applies when children or 
 their descendants have thus been ad- 
 vanced. Stat, of .Ohio (1884), § 41691?^ 
 seq. The New Jersey statute uses the 
 word issue. Stat, of N. J. (Revision of 
 1877) igV. The Code of North Carolina 
 says children. Code (1883), vol. i, § 1483. 
 In Vermont the provision applies to chil- 
 dren or other lineal descendants. Rev. 
 Laws of Vt. (1880) g 2246 et seq. It has 
 sometimes been said that children a(s 
 well as issue may stand in a collective 
 sense for grandchildren, when the justice 
 or reason of the case requires it. Wyth 
 
 231 
 
Talne. 
 
 AD VANCEMENTS. 
 
 Interest. 
 
 are not subject to advancements to their parents.^ Aliter, where 
 they take/^r stirpes, as they then represent their parents and can 
 take only the parents' shares.* 
 
 5. When Value of Advaijcement is to be computed — Interest. — The 
 value is in all cases to be computed at the date when the ad- 
 vancement comes into possession and enjoyment, and interest is 
 not to be charged.* When it is not convenient to make distribu- 
 tion at the expiration of a year from the decedent's death, ad- 
 vancements are to be charged with interest from that time.* The 
 fact that the advancement subsequently becomes worthless does 
 not relieve the child from accounting for its value at the time It 
 came into enjoyment.^ 
 
 V. Blackman. i Ves. Sn. 196 ; Royle v. 
 Hamilton, 4 Ves. 437; Dickinson v. Lee, 
 4 Watts (Pa.), 82. 
 
 1. Skinner v. Wynne, 2 Jones Eq. (N. 
 Car.) 41; Person's App., 74 Pa. St. 121; 
 Brown v. Taylor, 62 Ind. 295. 
 
 2. Proud V. Turner. 2 P. Wms. 560; 
 McRae v. McRae, 3 Bradf. Sur. (N. Y.) 
 199; McLure v. Steele, 14 Rich Eq. (S. 
 Car.) 105; Nelson v. Bush, 9 Dana (Ky.), 
 194; Hughes' App., 57 Pa. St. 179; Esh- 
 leman's App., 74 Pa. St. 42; Storey's 
 App., 83 Pa. St. 89. See Daves v. Hay- 
 wood, I Jones Eq. (N. Car.) 253. This 
 is ekpressly provided by statute in some 
 States; e.g., see Gen. Slat, of Mass. t. 91, 
 § 10. A grandchild is bound by an 
 agreement of his father, the son of the 
 intestate, accepting a provision in full of 
 the share of the estate. Simpson v. 
 Simpson. 114 111. 603. 
 
 3. Oyster v. Oyster, i S. & R. (Pa.) 
 422; Mannings. Thruston, sq^Md. 218 ; 
 Moale V. Cutting, 59 Md. 510; Pigg v. 
 Carroll, 8g 111. 205; Stephenson v. Mar- 
 tin, II Bush (Ky.), 485; Ray v. Loper, 
 65 Mo. 470; 53 Am. Dec. 496; Ricken- 
 backer v. Zimmerman, 10 S. Car. no; 
 Jackson v. Jackson, 28 Miss. 674, 64 Am. 
 Dec. 114 ; Kyle v. Conrad, 25 W. Va. 
 760 ; Marsh v. Gilbert, 2 Redf. (N. Y.) 
 465; Puryear v. Cabell, 24 Gratt. (Va.) 
 260; Keysz/. Keys, 11 Heisk. (Tenn.)425; 
 Williams v. Stonestreet, 3 Rand. (Va.) 
 559. See Fickes v. Wiseman, "2 Watts 
 {Pa.), 314. " The apparent inequality 
 created by the length of time which the 
 advancement is held and enjoyed before 
 the other legatees receive their share 
 constitutes no ground for charging the 
 advanced legatee with interest. It is an 
 inequality which always exists where ad- 
 vancements are made at different times 
 fcy the parent among a family of chil- 
 dren." Black V. Whitall. 9 N. J. Eq. 572, 
 59 Am. Dec. 423; Hosmer !<. "Sturges. 31 
 Ohio St. 657. It is fair that the child 
 
 should have the increase in value, as 
 he runs the risk of any deterioration 
 in value. Kean v. Welsh, i Gratt. 
 (Va.) 406; Knight v. Yarborough, 4 
 Rand. (Va.) 569; Nelson v. Wyans, 21 
 Mo. 347. Where a father made an 
 advancement of money to his son, took 
 from him a promissory note, and then di- 
 rected by will that the advancement 
 should be deducted from that child's 
 share, it was held that the principal only, 
 and not the interest, should be deducted. 
 Krebs t/. Krebs, 35 Ala. 293; Hutchin- 
 son's App., 47 Pa. St. 84; Green v. How- 
 ell, 6 W. & S. (Pa.) 203. See Grim's App.. 
 105 Pa. St. 375. The Code of Alabama 
 requires advancements to be estimated at 
 the value, if any, specified in the convey- 
 ance; and in other cases at their value 
 when made. See Turner v. Kelly, 67 
 Ala. 173. The statute of South Carolina 
 requires the value of the advancement to 
 be computed at what it is worth at the 
 death of the intestate, relation being had 
 to its situation at the time of the gift. 
 Rickenbacker v. Zimmerman, 10 S. Car. 
 no. 
 
 4. Ford's Est., 2 W. N. C. (Pa.) 113; 
 Thompson's Est., 8. W. N. C. (Pa.) 16; 
 Sharp's Est., 37 Legal Int. (Pa.) 234; 
 Yundt's App., 13 Pa. St. 575. It has been 
 held in some cases that interest is to be 
 charged on advancements from the death 
 of the intestate. . Ex parte Glenn, 20 S. 
 Car. 64; Johnson v. Patterson, 13 Lea 
 (Tenn.), 626; Williams v. Williams, 15 
 Lea (Tenn.), 438; Kyle v. Conrad, 25 W. 
 Va. 760. 
 
 6. So held in the case of slaves eman- 
 cipated by the war, in Fennell v. Henry, 
 70 Ala. 484; But slaves in such case are 
 not to be accounted for under the South' 
 Carolina statute, which requires that the 
 value of advancements shall be comput- 
 ed at the death of the intestate. Hughey 
 V. Eichelberger. 11 S. Car. 36; Wilson v. 
 Kelly, 21 S. Car. 533. Ex parte Glenn 
 
 322 
 
Changes of Gifts. 
 
 AD VANCEMENTS. 
 
 Changes of Debts, 
 
 6. Changes of Gifts to Advancements, and vice versa — Changes of 
 Debts, etc. — As before stated, the donor may change a debt or a 
 gift into an advancement by will.^ But the donor cannot change 
 an advancement into a debt or trust.* The ex parte declarations 
 of the parent of an intention to treat an existing debt as an ad- 
 vancement, not communicated to the child nor agreed to by him, 
 nor accompanied by an act sufficient to obliterate the obligation 
 as a debt, cannot change the debt into a gift by way of advance- 
 ment.^ But this rule does not exclude written entries of advance- 
 ments.* The donor may change an advancement into an absolute 
 gift, but an entry to have that effect must be explicit. ** By mu- 
 tual agreement the parties may resettle the terms of an advance- 
 ment, so as to change it into a gift for life or into an absolute gift.* 
 
 7. Miscellaneous. — The advancement is no part of the intestate's 
 estate,' and the donee does not relinquish his title by bringing it 
 into hotchpot. He does not have to refund any part, though it 
 exceeds his share. ^ The donor divests himself of all property in 
 the advancement.^ 
 
 20 S. Car. 64. And it has been held in 
 that State that the use of the slaves can- 
 not be charged as an advancement, since 
 after they have been given their use be- 
 longs exclusively to the donee. Wilson 
 V. Kelly, 21 S. Car. 535. Where a life 
 estate in slaves was given, only the rea- 
 sonable value of the life estate could be 
 treated as an advancement, not the use 
 and profits of their labor. Cawthorn v. 
 Coppedge, I Swan (Tenri.), 487. 
 
 1. Green v. Howell, 6 W. & S. (Pa.) 
 203; Whitman's App. 2 Grant (Pa), 323; 
 Mitchell V. Mitchell, 8 Ala. 414. But this 
 •cannot be done by subsequent acts and 
 declarations merely. Lawson's App.. 23 
 Pa. St. 85; Dugan v. Gittings, 3 Gill (Md.), 
 138; Bradshef !>. Cannady,76 N. Car. 445. 
 
 2. Haverstock v. Sarbach, i W. & S. 
 .(Pa.) 3go; Miller's App., 31 Pa. St. 337; 
 Sherwood v. Smith, 23 Conn. 516; Arnold 
 -». Barron, 2 Pat. & H. (Va.) 1; Dudley 
 ■V. Bosworth, 10 Humph. (Tenn.) g; 
 Thompson's App., 42 Pa. St. 345; Clea- 
 ver V. Kirk, 3 Mete. (Ky.) 270. 
 
 3. Yundt's App., 13 Pa. St. 575; Porter 
 -z/. Allen, 3 Pa. St. 390; Haverstock v. 
 5arbach, i W. & S. (Pa.) 390; Levering 
 V. Rittenhouse, 4 Whar. (Pa.) 137; 
 Dewees's Est., 3 Brewst. (Pa.) 314; Oiler 
 V. Bonebrake, 65 Pa. St. 338; Harley v. 
 Harlev. 57 Md. 340. 
 
 4. Hengst'sEst., 6Watts (Pa.), 86. A 
 paper signed by the intestate is sufficient 
 to change a debt into an advancement. 
 Kirby's App., 16 W. N. C. (Pa.) 71. 
 
 5 Clark v. Warner, 5 Conn. 356; Lee 
 V. Boak, II Gratt. (Va.) 182. 
 
 6. Harper ».. Parks. 63 Ga. 705; Wal- 
 lace u. Owen, 71 Ga 544. But where a 
 
 233 
 
 father, worth about $12,000, gave to his 
 son personal property worth about $100, 
 and afterwards representing to the latter 
 that such personal property was intended 
 as an advancement, induced the son to 
 sign a note as evidence of such advance- 
 ment, held, in a suit on the note, that it 
 was executed without valid consideration. 
 Harris w.. Harris. 69 Ind. 181. 
 
 7. Black V. Whitall, 9 N. J. Eq. 572. ' 
 
 8. Eckler v. Galbraith, 12 Bush (Ky.). 
 71; Gordon v. Barkelew, 6 N. J. Eq. 94 ; 
 Phillips V. McLaughlin, 26 Miss. 592; 
 Jackson v. Jackson, 28 Miss. 64; Am. 
 Dec. 114; Chase v. Lockerman, 11 Gill. 
 & J. (Md.) 185, 35 Am. Dec. 277. By re- 
 fusing to bring an advancement into 
 hotchpot the child gives up all further 
 interest in the estate. Grattan v. Grat- 
 tan, 18 111. 167, 65 Am. Dec. 726; Taylor 
 V. Reese, 4 Ala. 121. 
 
 A widow, who under her husband's 
 will held lands and slaves, which were to 
 be divided equally between her and 
 her children, but with a power to ad- 
 vance to the children the property, at 
 such times and in such kinds of property 
 as her judgment might dictate, advanced 
 to two of the children some slaves and 
 more than their aliquot share of land, in- 
 tending to give them a balance still due 
 from the slave property. Held, that the 
 unexpected circumstance of the destruc- 
 tion of the slave property by the war 
 did not entitle the children not advanced 
 to a redistribution of the land, or an ac- 
 count of the slave property which went 
 into the hands of the children advanced. 
 Kelly V. McCallum, 83 N. Car. 563. ■ 
 
 9. Crosby v. Covington, 24 Miss. 619; 
 
AD VANCEMENTS—AD VANCES. 
 
 Advancements must be voluntary on the part of the donor.* 
 
 Lapse of time cannot be set up against liability for an advance- 
 ment.* 
 
 A power given to a w^ife to divide property given to her for life 
 among the children does not authorize her to make advancements 
 to some of them and not to others.* 
 
 ADVANCES. — Moneys paid before, or in advance, of, the proper 
 time of payment ; furnishing on credit.* 
 
 Fellows Tj. Little, 46 N. H. 27; Clark 'v. 
 Willson, 27 Md. 693; Luqueer's Est., I 
 Tuck. (N. Y.) 236. Yancy v. Yancy, 5 
 Heisk. 353. ^ 
 
 An instrument making an advancement 
 cannot be of a testamentary nature, as the 
 title passes at once. Holliday v. Wliite, 
 33 Tex. 460. 
 
 If subsequently to the advancement the 
 fathei- takes possession of the prppeny 
 and uses il, he becomes his son's debtor, 
 and the statute of limitations runs 
 against the claim for the use of the prop- 
 erty. PersoU V. Scott, 64 Ga 767. 
 
 1. See Rains J/. Hays, 6 Lea(Tenn.),303. 
 R. mortgaged certain real estate, the 
 
 equity of redemption in which was after- 
 wards set off, on an execution against 
 him, to a creditor who conveyed the 
 same to R.'s wife, and she afterwards 
 died intestate. After her death R. re- 
 mained in possession, and some time af- 
 ter was required to pay, and did pay, the 
 mortgage debt. On a bill for foreclosure 
 of the mortgage brought by R. 's executors 
 against his children, who were also the 
 children and heirs-at-law of R.'s vi\le,held, 
 that the payment of the mortgage debt 
 was not an advancement to the children. 
 Hart z/. Chase, 46 Conn. 207. 
 
 2. Hughes' App., 57 Pa. St. 179. 
 
 3. Farmer v. Farmer, 93 Ind. 435. But 
 see Wimberly v. Bailey, 58 Tex. 222, 
 and Weir v. Smith. 62 Tex. I. 
 
 But where property was devised to 
 widow for life, and at her death what re- 
 mained was to be divided equally among 
 the children, and the widow and children 
 agreed that what she gave to each should 
 be charged in the final division, it was 
 held the advancements should be account- 
 ed for according to the agreement. Foltz 
 V. Wert, 103 Ind. 404. 
 
 Authorities for Advancement.— Kent's 
 Commentaries, vol. 4, *4i8 et seq.; Wil- 
 liams on Executors, 6th Am. Ed. 1605 
 et seq.; Comstock on Executors (1832), 
 chapter on Distribution, 327 et seq.; Hood 
 on Executors (1847), chapter on Distribu- 
 tion, 192 et seq.; Lomax on Executors 
 (1841), 212 et seq.; Toller on Executors 
 (1829), 3d Am. Ed. *376 et seq.; McClel- 
 ian's Executor's Guide (1873), 119 et seq. 
 
 4. The term "advances " does not,, 
 even in ordinary cases, include money. 
 Its ordinary use indicates moneys paid 
 before, or in, advance of, the proper time 
 of payment. If it be deemed equivalent 
 to advancement, and then to imply the 
 advancing the son or daughter in life by 
 promoting his or her pecuniary interest,, 
 that meaning may well apply to the large 
 bequests given on marriage, or on the 
 child attaining full age, but not to the 
 moneys expended for his support. Vail 
 V. Vail, 10 Barb. (N.-Y.) 69, 73. 
 
 The word "advances" when taken in 
 its strict legal sense does not mean gifts 
 ■ — advancements — and does mean a sort 
 of loan; and when taken in its ordinary 
 and usual sense includes both loans and 
 gifts — loans more readily, perhaps, than 
 gifts. Nolan v. Bolton, 25 Ga. 352. 
 
 "Advancement" and "advancements" 
 are the terms used in the law dictiona- 
 ries, and in the New York statutes, to 
 designate money or property given by a 
 father to his children, as a portion of his 
 estate, and to be taken into account in the 
 final partition or distribution thereof. 
 "Advances" is not the appropriate term 
 for money or property thus furnished. 
 The latter phrase, in legal parlance, has 
 a different and far broader signification. 
 It may characterize a loan or a gift, or 
 money advanced, to be repaid condition- 
 ally. " Lent and advanced " was the lan- 
 guage of the old common count, in as- 
 sumpsit, l<Sx money loaned or advanced, 
 to be repaid. Chase v. Ewing, 51 Barb. 
 (N. Y.) 597, 612. 
 
 It was rightly ruled that the word" ad- 
 vances," as used In one clause of the will. 
 was not restricted to "advancements." 
 Barker v. Comins, no Mass.477, 488.' 
 Cf. County of Ormsbyi'. State,6 Nev. 283. 
 
 Advance. — To "advance" is to "sup- 
 ply beforehand;" "to loan before the 
 work is done or the goods made." Pow- 
 der Co. V. Burkhardt, 7 Otto, no, 117. 
 
 The word "advance" Implies a*n act 
 which, by anticipation puts money or 
 money's worth Into the hands of the 
 party, who would otherwise not receive 
 It. Cooper V. Cooper, L. R. 8 Ch. App. 
 813, 824. 
 
 234 
 
J)efiiutioii. 
 
 ADVmSE POSSESSION. 
 
 Definition. 
 
 ADVERSE POSSESSION. 
 
 Prescription. 
 
 See also DEDICATION; EJECTMENT; 
 
 I. Definition. 
 
 27. 
 
 Possession must be Continuous 
 
 2. Adverse User, 
 
 
 herein of — 
 
 3. Intent. 
 
 
 28. Tacking. 
 
 4. Essentials. 
 
 
 29. Interruption. 
 
 5. Possession must be Hostile herein 
 
 
 30. Offer to purchase Superior 
 
 of- 
 
 
 Title. 
 
 6. Executory Contract. 
 
 
 31. Purchase by Adverse Holder. 
 
 7. Tenant in Common. 
 
 32- 
 
 May not hold adversely to All. 
 
 8. Ouster. 
 
 33- 
 
 Color of Title herein of — 
 
 9. Conveyance by Co-tenant. 
 
 
 34. Good Faith. 
 
 10. Life Estate. 
 
 
 35. Parol Agreement. 
 
 II. Landlord and Tenant. 
 
 
 36. Gift. 
 
 12. Trusts. 
 
 
 37. Under Mistake. 
 
 13. Agent. 
 
 
 38. Lost Deed. 
 
 14. Mortgagor and Mortga- 
 
 
 39. Invalid Conveyance or. Title. 
 
 gee. 
 
 
 40. Interference of Titles. 
 
 1 5. Pendente Lite Purchaser. 
 
 
 41. Conflicting Titles. 
 
 16. Vendor and Vendee. 
 
 
 42. Extent of Possession. 
 
 17. Boundaries and Fences. 
 
 
 43. Fraud. 
 
 18. Husband and Wife. 
 
 44- 
 
 Without Color of Title. 
 
 19. Permissive Entry. 
 
 45- 
 
 Improvements. 
 
 to. Possession must be Actual herein 
 
 46. 
 
 Abandonment. 
 
 of- 
 
 47- 
 
 Mines. 
 
 21. H^^a/ Constitutes Posses- 
 
 48. 
 
 Water. 
 
 sion. 
 
 49- 
 
 Easement. 
 
 22. Cicltivation. 
 
 SO. 
 
 Right of Way. 
 
 23. Inclosures. 
 
 5»- 
 
 Highways. 
 
 24. Ta-irw. 
 
 52. 
 
 Public Lands. 
 
 !5. Possession must be Visible, Notori- 
 
 S3- 
 
 State Lands. 
 
 ous, and Exclusive here- 
 
 54- 
 
 Municipal Corporations. 
 
 in of — 
 
 55- 
 
 Effect of Adverse Possession. 
 
 26. Notice. 
 
 S6. 
 
 Evidence. 
 
 1. Definition. — Adverse possession is a possession inconsistent 
 with the right of the true owner ; in other words, where a person 
 possesses property in a manner in which he is not entitled to pos- 
 sess it, and without anything to show that he possesses it other- 
 wise than as owner, — that is, with the intention of excluding all per- 
 sons from it, including the rightful owner, — he is in adverse posses- 
 sion of it. Thus, if A is in possession of a field of B's, he is in 
 adverse possession of it, unless there is something to show that his 
 possession is consistent with a recognition of B's title.^ 
 
 1. Sweet's Law Diet.; Ward v. Cart- 
 tar, L. R. I Eq. 29; Magee v. Magee. 37 
 Miss. 152; Alexander v. Polk, 39 Miss. 
 755; Dixon V. Cook, 49 Miss. 226;, French 
 V. Pearce, 8 Conn. 441. 
 
 What constitutes adverse possession is 
 .for the court; the facts which support the 
 claim, for the jury. Kinsell v. Daggett, 
 II Me. 3ogr Schwartz v. Kuhn, 10 Me. 
 274; Atherton v. Johnson, I N. H. 34; 
 Webb V. Richardson, 42 Vt. 465; Hall v. 
 Dewey, loVt. 593; Gayetty f . Bethune, 
 14 Mass. 49; Cummings v. Wyman, 10 
 
 325 
 
 Mass. 464; Poignard v. Smith, 6 Pick. 
 (Mass.) 172; Gross v. Welwood, 90 N. 
 Y. 638; Madison Am. Church v. Oliver 
 St. Church, 73 N. Y. 82; Trim v. Marsh, 
 54 N. Y. 599; s. c, 13 Am. Rep. 623; 
 Jackson v. Joy, 9 Johns. (N. Y.) 102; 
 Jackson v. Stephens, 13 Johns. (N. Y.) 
 496; Jackson v. Wheat, 18 Johns. (N. 
 Y.) 40; Den v. Sinnickson, 9 N. J. L. 
 149; Hopkins v. Robinson, 3 Watts (Pa.), 
 205 ; Bell V. H urtlev, 4 W. & S. (Pa.) 132 ; 
 Wallace v. Duffield, 2 S. & R. (Pa.) 527; 
 Mushawer v. Patten, 10 S. & R. (Pa.) 
 
Adverse TTser. 
 
 ADVERSE POSSESSION. 
 
 Adverse User. 
 
 2, What is Adverse User. — An adverse user is such a use of the 
 property as the owner himself would make, asking no permission, 
 
 334; Overfield v. Christie, 7 S. & R. (Pa.) 
 172; Read v. Goodyear, 17 S. & R. (Pa.) 
 350; Hatch V. Smith, 4 Pa. St. 109; 
 \Vorl{man v. Guthrie, 29 Pa. St. 495; 
 Hoopes V. Garver, 15 Pa. St. 517; Baker 
 V. Swan. 32 Md. 355; Boiling z;. Peters- 
 burg, 3 Rand. (Va.) 536; Rogers zi. Mad- 
 den, 2 Bailey (S. Car.), 321; Harrington 
 V. Wilkins, 2 McC. (S. Car.) 289; Du- 
 bois V. Marshall, 3 Dana (Ky.), 336; 
 Bracken v. Martin, 3 Yerg. (Tenn.)55; 
 Beverly v. Burke, g Ga. 440; s. c, 54 
 Am. Dec. 351; Her v. Routh, 3 Miss. 
 276; Grafton v. Grafton, i5 Miss. 77; 
 Magee v. Magee, 37 Miss. 490; Holliday 
 V. Cromwell, 37 Tex. 437; McNair v. 
 Funt, 5 Mo. 300; Macklot v. Dubreuil, 9 
 Mo. 473; s. c, 43 Am. Dec. 550; Boogher 
 V. Neece, 75 Mo. 384; Washburn v. Cut- 
 ter, 17 Minn. 361; McPherson v. Feattier- 
 ston, 37 Wis. 632; Shackelford v. Bailey, 
 35 111. 387; Woodward v. Blanchard, 16 
 111 424; Wriggins v. HoUey, 11 Ind. 2*; 
 McCluny v. Ross, 5 Wheat. (U. S.) 116. 
 Compare Saterfield v. Randall, 44 Ga. 576. 
 
 " When we look to the elements of an 
 adversary possession, in reference to 
 conflicting claims and the statutory pro- 
 scriptive bar, we find that it consists of 
 an exclusive, actual, continued posses- 
 sion, under a colorable claim of title." 
 Taylor v. Burnsides, i Gratt. (Va.) 165. 
 
 To establish an adverse possession the 
 claim must be unequivocal. Sturges v. 
 Parkhurst, 50 N. Y. Super. Ct. 306. 
 
 Instructions which leave it to the jury 
 to determine what constitutes adverse 
 possession or color of title are properly 
 refused. Boogher v. Neece, 75 Mo. 3S4. 
 
 The plaintiff brought a suit to recover 
 possession of certain land, of which he 
 claimed to have been dispossessed by the 
 defendant about three years before. Af- 
 ter his ouster the plaintiff executed a deed 
 of the premises to B, but by reason of 
 the adverse possession of the defendant 
 no title passed. The deed was given and 
 received for the sole purpose of enabling 
 B to dispossess the defendant. Soon af- 
 ter this the defendant brought an action 
 of trespass against B for taking and car- 
 rying away a quantity of hay, which B 
 justified on the ground that it was hay 
 cut on the land in question, the title to 
 which was in him. The court, however, 
 rendered judgment for the present defend- 
 ant. The latter, in the present suit, of- 
 fered in evidence that judgment as an 
 estoppel upon the present plaintiff. Held, 
 that the title to the demanded premises 
 
 was not in issue in that suit. The court 
 below found, as to the plaintiff's title, ' 
 that the only use to which the strip of 
 land had been subjected was the occa- 
 sional trimming and cutting of its trees 
 and brush and the annual cutting and re- 
 moval of the grass, seaweed, and sedge 
 growing on it, and the landing, repairing, 
 arid storing of the fishing and other boats 
 of the plaintiff and of those under whom he 
 claimed title; and that the plaintiff and 
 those under whom he claimed had been 
 in the adverse and uninterrupted use 
 and possession of the premises for 
 the purposes aforesaid, more than fif- 
 teen years before the ouster by the de- 
 fendant. The court having rendered 
 judgment for the plaintiff, it was held, on 
 the defendant's appeal, that this court 
 could not, as matter of law, say that such 
 possession and use were not such as to 
 practically exclude the owner, and there- 
 fore could not say that the conclusion 
 of the court below was legally erroneous. 
 Carver z/. Staples, 51 Conn. 21. 
 
 Adverse possession cannot arise until 
 there is some one to dispute the right 
 claimed. Marble v. Price, 54 Mich. 
 466. 
 
 Title by adverse possession is not af- 
 fected by a repeal of the statute granting 
 it. Knox V. Cleveland, 13 Wis. 245; see 
 Shriverz/. Shriver, 86 N. Y. 575. 
 
 Where land is held adversely, the true 
 owner cannot as against the party in 
 possession convey a title by deed deliv- 
 ered off the premises. Sohier v. Coffin, 
 loi Mass. 179. 
 
 Mere denials of the right, complaints, 
 remonstrances, or prohibitions of user, 
 unaccompanied by any act which iij law 
 would amount to a disturbance and be 
 actionable as such, will not prevent the 
 acquisition of a right by prescription. 
 Lehigh Valley R. Co. v, McFarlan, 43 N. 
 J. L. 605. 
 
 When both parties claim title by pos- 
 session under color of title, the origin of 
 each being an act of trespass, the one be- 
 ing a trespass on the constructive pos- 
 session and the other a trespass on the 
 actual possession under the later title, 
 the same rule of law as to the title pass- 
 ing by adverse possession applies to 
 each. Farran v. Heinrich, 86 Mo. 521. 
 
 No title can be acquired by adverse 
 possession of land which was dedicated 
 to public use before the possession be- 
 gan. Hoadley v. San Francisco, 50 Cal. 
 265. 
 
 336 
 
Intent. 
 
 ADVERSE POSSESSION. 
 
 Intent, 
 
 and disregarding all other claims to it so far as they conflict with 
 this use.^ 
 
 3. Intent. — An adverse possession depends upon the intention 
 with which it was taken or held.'-* 
 
 The claim of a mere easement, or 
 other right in land less than the entire 
 fee, does not confer any adverse right to 
 the fee simple, and that to have this 
 effect, under the statute of limitations, 
 the claim must be of the entire title, ex- 
 clusive of the title of any other person. 
 N; O. & S. R. Co. V. Jones, 68 Ala. 48, 
 55. Dothard v. Denson, 75 Ala. 483. 
 
 Under a plea of not guilty in eject- 
 ment, evidence to prove an adverse pos- 
 session is admissible, and a special plea 
 of the statute of limitation should not 
 be allowed. Wade v. Doyle, 17 Fla. 522; 
 Weiskoph v. Dibble, 18 Fla. 24. 
 
 The fact that ejectment was brought 
 within the time is no defence to the plea 
 of the statute. The two actions are not 
 for the same cause. Whitfield v. Hill, 5 
 Jones Eq. 316; Isler v. Dewey, 84 N. 
 Car. 345. 
 
 In a proceeding by an administrator 
 for leave to sell land to pay debts, the 
 court, exercising but a mere statutory 
 authority, has no jurisdiction to settle 
 and determine conflicting tides to the 
 land, or to remove clouds upon title. If 
 the paramount owner of the land is made 
 a defendant, it would doubtless be nis 
 duty to assert his rights to the same in 
 his answer, not for the purpose of form- 
 ing an issue to be tried in that proceeding, 
 but for the purpose of giving notice of 
 his rights, and thus prevent an estop^pel 
 in pais. Harding!'. Le Moyne, 114 111. 
 65. 
 
 Breach of Peace, — A person who has, 
 or ihinks he has, a title to land which is 
 in the actual possession of another can- 
 not lawfully take possession without the 
 consent of the holder, even though he 
 commit no breach of the peace. Morris 
 V. Robinson, S. C. Ala. Dec. Term, 1885- 
 1886; Turnley v. Hanna, 67 Ala. loi; 
 Mason v. Hawes, 52 Conn. 12; s. c, 52 
 Amer. Rep. 552. 
 
 Adverse possession must be peaceable, 
 without force and violence; but it will 
 not be broken by every trespass or claim 
 by another inconsistent with a recognition 
 of such adverse holdiifg. Daren v. Sin- 
 clair, 22 S. Car. 361. 
 
 1. Blanchard v. Moulton, 63 Me. 434. 
 
 2. Waltmeyer v. Baughman, 63 Md. 
 200; Beatty v. Mason, 30 Md. 409: Core 
 V. Faupel, 24 W. Va, 238; Bartholomew 
 V. Edwards, I Houst. (Del.) 217; Davis v. 
 Bowmar, 55 Miss. 671; Magee v. Magee, 
 
 37 Miss. 152; Brown v. Cockrell, 30 Ala. 
 45; Howard v. Reedy, 29 Ga. 154; Car- 
 roll V. Gillion, 33 Ga. 539; St. Louis Uni- 
 versity V. McCune, 28 Mo. 481; Belts v. 
 Brown, 3 Mo. App. 20; Musick v. Bar- 
 ney, 49 Mo. 458; Skinner v. Crawford, 
 54 Iowa, iig; Jones v. Hockman, 12 
 Iowa, 108; Grube'z'. Wells, 34 Iowa, 
 148; McNamara v. Seaton, 92 111. 498; 
 Jackson v. Berner, 48 111. 203 ; Hum- 
 phries V. Hoffman, 35 Ohio St. 395 ; Green 
 V. Harman, 4 Dev. (N. Car.) IJ^S; Cleve- 
 land V. Flogg. 4 Cush. (Mass.) 76; Allen 
 V. Holton, 20 Pick. (Mass.) 458; Church 
 V. Burghart, 8 Pick. (Mass.) 328; Cook 
 V. Babcock, 11 Cush. (Mass.) 210; Brown 
 V. Gay, 3 Me. 126; Putnam School v. 
 Fisher, 38 Me. 324; Worcester v. Lord, 
 56 Me. 265; Dow V. McKenney, 64 Me. 
 138; Grant v. Fowler. 39 N. H. loi; 
 Hodges V. Eddy. 41 Vt. 488; Morse v. 
 Churchill, 41 Vt. 649 ; Jackson v. 
 Thomas, 16 Johns. (N. Y.)293; Jackson 
 V. Wheat, 18 Johns. (N. Y.) 44; Russell 
 V. Davis, 38 Conn. 562; McGee v. Mor- 
 gan, I A. K. Marsh (Ky.), 62; Ewing v. 
 Burnet, 11 Pet. (U. S.) 41 ; Larwell v. 
 Stevens, 2 McCrary (U. S.), 311; Jack- 
 son V. Porter, i Paine (U. S ), 457. 
 Compare Campau v. Dubois, 39 Mich. 
 274. 
 
 The intention must be manifest. Cul- 
 ver z/. Rhodes, 86 N. Y. 348; Marcy j). 
 Marcy, 6 Mete. (Mass.) 360; Hart v. 
 Gregg, ID Watts (Pa.), 185; Prescott v. 
 Nevers, 4 Mason (U. S.), 330. But it need 
 not be expressed, it may be inferred 
 from manner of occupancy. Conyers v. 
 Kenan, 4 Ga. 308; s. c. , 48 Am. Dec. 
 226 
 
 The possession may be adverse, al- 
 though deceit may have been used, to 
 deceive the rightful owner. Strange v. 
 Durham, i Brev. (S. Car.) 83. 
 
 The declarations of the adverse holder 
 that he wished to find the true owner, 
 and to purchase the property of him, 
 will not save the statute. Patterson u. 
 Reigle, 4 Pa. St. 201. 
 
 The possession of a mere trespasser, 
 entering and holding without claim of 
 right, is not adverse to the rightful 
 owner, and does not ripen into a title by 
 lapse of time, nor invalidate a convey- 
 ance by the owner to another person. 
 Bernstein v. Humes. 78 Ala. 134; Clark 
 V. Courtnev. 5 Pet. (U. S.)320. 
 
 Unintentional Encroachment. — Where 
 
 227 
 
Jlssentials. 
 
 ADVERSE POSSESSION. 
 
 Hostile. 
 
 4. Essentials. — To constitute a possession such as will bar the 
 title of the legal owner, five elements must coexist. It must be(i) 
 hostile or adverse ; (2) actual ; (3) visible, notorious, and exclusive ; 
 (4) continuous, and (5) under a claim or color of title.^ 
 
 5. Hostile or Adverse. — The element of hostility to the title of 
 the true owner is an indispensable ingredient of adverse posses- 
 sion. The hostile possession must be continuous and notorious. 
 It cannot be made out from inference, as the presumption is in 
 favor of the true owner.* 
 
 the owner of a city lot undertakes to 
 ■erect a building upon his own ground, 
 but by inadvertence and ignorance of the 
 true line of his lot places a portion of 
 the wall four inches over the dividing 
 line and upon the adjoining lot, but with 
 no intention then or afterward to claim 
 -any portion of such adjoining lot as his 
 -own, and the adjoining lot-owner had no 
 knowledge of such encroachment, the 
 j)ossession thus taken will not be adverse. 
 "Winn V. Abeles, 35 Kan. 85. 
 
 1. Hawk V. Senseman, 6 S. & R. (Pa.) 
 •21 ; Partch w. Spooner, 57 Vt. 583; Cook 
 v. Babcock, II Cush. (Mass.) 209; Tay- 
 lor w. Burnsides.l Gratt. (Va.) 165; Creek- 
 mur V. Creekmur, 75 Va. 430; Core v. 
 Faupel, 24 W. Va. 238; Dietrick v. Noel, 
 
 .42 Ohio St. 18; s. c, 51 Am. Rep. 788; 
 Flaherty v. McCormick, 113 111. 538; 
 Washburn v. Cutter, 17 Minn. 361; Dot- 
 hard V. Denson, 75 Ala. 541; Davis v. 
 Bowmar, 55 Miss. 671; Ringo v. Wood- 
 ruff, 43 Ark. 469; Bracken v. Jones, 63 
 Tex. 184; Unger v, Mooney, 63 Cal. 586. 
 ' Terms "open," "notorious," "ad- 
 verse," and " exclusive," when applied 
 to the manner in which land is held, in- 
 dicate a claim of right. The terms con- 
 stitute a definition of disseisin, and 
 will be so construed unless explained 
 by other evidence. School Dist. v. Ben- 
 son, 31 Me. 381; s. c, 52 Am. Dec. 618. 
 
 2. Jones V. Porter, 3 P. & W. (Pa.) 
 132; Hawk». Senseman, 6 S. & R. (Pa.) 
 21; Rung V. Shoneberger, 2 Watts 
 (Pa.). 23; s. c, 26 Am. Dec. 95; 
 Putnam School v. Fisher, 38 Me. 
 324; Lund v. Parker, 3 N. H. 49; Grant 
 V. Fowler, 39 N. H. loi; Hodges v. 
 Eddy, 38 Vt. 344; Morse v. Churchill, 41 
 Vt. 649; Soule v.. Barlow, 49 Vt. 329; 
 Newhallsf. Wheeler, 7 Mass. 189; Coburn 
 V. Hollis, 3 Mete. (Mass.) 125; Slater v. 
 Rawson, 6 Mete. (Mass.) 439; Cook v. 
 Babcock, II Cush. (Mass.) 209: Church 
 V. Burghart, 8 Pick. (Mass.) 328; Russell 
 V. Davis, 38 Conn. 562; Smith v. Bur- 
 tis, 6 Johns. (N. Y.) 218; Jackson v. 
 Wheat, 18 Johns. (N. Y.) 40; Creekmur 
 z/. Creekmur, 75 Va.430; Clark v. McClure, 
 
 10 Gratt. (Va.) 305; Core v. Faupel, 24 W. 
 Va. 238; Hudson v. Putney, 14 W. Va. 
 561; Beatty J/. Mason, 30 Md. 409; O'Dan- 
 iel V. Bakers' Union, 4 Houst. (Del.) 488; 
 Snoddy zi. Kreutch, 3 Head(Tenn.), 304; 
 McGee v. Morgan, i A. K. Marsh (Ky.), 
 62; Herbert v. Haurick, 16 Ala. 581; 
 Potts ». Coleman, 67 Ala. 221; Carroll v. 
 Gillion, 33 Ga. 539; Gordon v. Sizer, 
 39 Miss. 805; Magee v. Magee, 37 Miss. 
 152; Ringo v. Woodruff, 43 Ark. 469; 
 Musick V. Barney, 49 Mo. 458; Wall v. 
 Shindler, 47 Mo. 282; , Satterwhite v. 
 Rosser, 61 Tex. 166; Cracken v. Jones, 
 63 Tex. 184; Wiggins v. Holly, 11 Ind. 
 2; Jackson v. Berner, 48 111. 203; De 
 Long V. Mulcher, 47 Iowa, 445; Grube 
 V. Wells, 34 Iowa, 150; Jones v. Hock- 
 man, 12 Iowa, 108; Sparrow v. Hoey, 
 44 Mich. 63; Yelverton v. Steele, 40 
 Mich. 538; Washburn v. Cutter, 17 
 Minn. 361; Unger v. -Mooney, 63 Cal. 
 586; ^. c, 49 Am. Rep. 100; Pepper v. 
 O'Dowd, 39 Wis. 548. 
 
 Mere verbal objections on the part of 
 the true owner will not, stop the run- 
 ning of the statute. Kimball v. Ladd, 
 42 Vt. 747. 
 
 One holding the legal title to lands, 
 although not actually occupying, will be 
 considered as constructively in posses- 
 sion thereof, unless they are in the actual 
 hostile occupancy of another under a 
 claim of title. Bliss v. Johnson, 94 N. 
 Y. 235. 
 
 Adverse possession has in it nothing 
 of stealthiness, nor is it elastic or flex- 
 ible; there must be publicity, continuity, 
 and good faith in its assertion, leaving 
 no room for doubt by the person against 
 whom it is asserted that his title is dis- 
 puted, and a hostile title asserted. Potts 
 j/.Coleraan, 67 Ala. 221. Compare Strange 
 V. Durham, i Brev. (S. Car.) 83. 
 
 There must be not only an actual oc- 
 cupation, but also a claim of title Hos- 
 tile to that of the true owner. Hehi, , 
 accordingly, that it was error to instrucl? 
 the jury to the effect that land was ad- 
 versely possessed where protected by a 
 substantial enclosure, or where it has 
 
 328 
 
Hostile. 
 
 ADVERSE POSSESSION. Executory Contract. 
 
 Possession will not be adverse if it be held under, or subservient 
 to, a higher title, nor if it' be consistent with the interest or estate 
 of the claimant; for instance, where the possession of one is the 
 possession of the other, or where the estate of one in possession 
 and that of the claimant form different parts of one and the same 
 estate. The mere entry and possession of one tenant in common, 
 or joint tenant, or coparcener will not be adverse to the co-tenant, 
 because the possession of one is the possession of the other. To 
 constitute adverse possession in such cases, there must be an ous- 
 ter, an entry and possession hostile to the title of the owner of the 
 legal title. Nor will the possession of a tenant for years or tenant 
 for life be adverse to the reversioner or heir in remainder. Thus: 
 
 6. Executory Contract. — Wlien a purchaser of lands, under an 
 executory contract, is let into possession, not having paid the pur- 
 •chase-money, and not having received a conveyance, he holds in 
 subordination to the title of the vendor ; and he cannot defeat a 
 suit in equity by the vendor to charge the lands with the payment 
 of the purchase-money, by interposing the lapse of time as a de- 
 fence, without showing that his possession was open and notorious, 
 •asserted as hostile to the right and title of the vendor, and con- 
 tinued long enough to bar a recovery at law under the statute. '^ 
 
 'been usually cultivated or improved; the Ga. 507; Stamper v. GrifEn, 12 Ga. 457; 
 
 definilion. omitting the element of hos- 
 tility, which is an indispensable constit- 
 uent of adverse possession. Thompson 
 v: Felton, 54 Cal. 547. 
 
 It should appear that the possession 
 had been actual, continued, visible, no- 
 torious, distinct, and hostile. And where 
 the circuit judge was requested so to 
 instruct the jury, and refused, but in- 
 structed them only that the possession 
 must be actual, continued, and visible, 
 held to be error. Sparrow v. Hovey, 44 
 Mich. 63. 
 
 The occupant's declarations during the 
 occupancy are evidence to show that the 
 holding was not adverse. Calhoun v. 
 Cook, g Pa. St. 226. 
 
 1. Walker v. Crawford, 70 Ala. 567; 
 Potts V. Coleman, 67 Ala. 221; Beard i). 
 'Ryan, 78 Ala.' 37; Taylor v. Dugger, 66 
 Ala. 445; Qrmond v. Martin, 37 Ala. 598; 
 McQueen v. Ivey, 36 Ala. 308; Dothard 
 V. Denson, 72 Ala. 541; Moring v. Abies, 
 '62 Miss. 263; Benson v. Stewart, 30 
 Miss. 49; McClanahan v. Barrow. 27 
 Miss. 664; Gladney v. Barton, 51 Miss. 
 216; Adair V. Adair, 78 Mo. 630; Adams 
 V. Cowherd, 30 Mo. 458; Strickland v. 
 Summerville, 55 Mo. 165; Estes v. Long, 
 71 Mo. 605; PuUen v. Canfield, 67 Mo. 
 50; Doe «. Jefferson, s Del. 477; Clark 
 V. McClurr, 10 Gratt. (Va.) 305; Nowlin 
 V. Reynolds, 25 Gratt. (Va.) 137; Hudson 
 V. Putney, 14 W. Va, 56t; Core v. Fau- 
 ipel, 24 W. Va. 238; Williams v. Cash, 27 
 
 Jackson w. Foster. 12 Johns. (N. Y.)490; 
 Knox V. Hook, 12 Mass. 329; Brown v. 
 King, 5 Mete. (Mass.) 173; Catlino v. 
 Decker, 38 Conn. 262; Adams ». Fullam 
 43 Vt. 592; 47 Vt. 558; Re Public Parks 
 Depart. 73 N. Y. 560; Den v. Kip, 2 
 Dutch. (N.J.) 351; Harris i/. Richey, 56 
 Pa. St. 395; McCracken v, Roberts, 19 
 Pa. St. 390; Woods V. Dill, 11 Ohio, 455; 
 Dunlap V. Dougherty, 20 III. 397; Rigor 
 ». Frye, 62 111. 507; Clouse v. Elliott, 
 71 Ind. 302; Blackwell w. Ryan. 21 
 S. Car. 112; Gilleson v. Railroad Co , 7 
 S. Car. 173; Furlong w. Garrett. 44 Wis. 
 in; Coldcleugh v. Johnson, 34 Ark. 312; 
 Turner v. Thomas, 13 Bush (Ky.), 518; 
 Higginbotham v. Fishback, i A. K. 
 Marsh (Ky.). 506; Gassomw. Donaldson, 
 18 B. Man. (Ky.), 230; Kilburnw. Ritchie, 
 2 Cal. 145; Farrish v. Coon, 40 Cal. 33; 
 Osterman v. Baldwin, 6 Wall. (U. S.) 
 116; Hermans v. Schmaltz, 7 Fed. Repr. 
 566; s. c, 10 Biss. (U. S.) 323; see 
 Adams v. FuUam, 47 Vt. 558. 
 
 Neither can the widow of such vendee 
 after his death. Blackwell v. Ryan, 21 
 S. Car. 112. 
 
 A sold land belonging to his wife 
 to B, giving only a title bond. B en- 
 tered in possession. The wife died 30 
 years after such entry. Held, that A's 
 estate by courtesy was barred by the pos- 
 session of B axiA his successors. Stokely 
 V. Slayden, 8 Baxt. (Tenn.) 307. 
 
 The vendee, though not strictly a ten- 
 
 I C. of L.— 16 
 
 229 
 
Hostile. 
 
 ADVERSE POSSESSION. Executory Contract. 
 
 Where, however, the vendee has executed his part of the agree- 
 
 ant of the vendor, and though the tech- 
 nical relation of landlord and tenant is 
 not created, is estopped from denying 
 the title of the vendor, upon principle 
 and reasoning like that which estops the 
 tenant from disputing the title of the 
 landlord; and the estoppel applies to 
 whoever may acquire possession from 
 the vendee. Potts v. Coleman, 67 Ala. 
 221; Jackson v. Harder, 4 Johns. (N. Y.) 
 202; Jackson v. Bard, 4 Johns. (N. Y.) 
 230; Jackson v. Walker, 7 Cow. (N. Y.) 
 643; Jackson u. Spear, 7 Wend. (N. Y.) 
 
 403- 
 
 One buys land with borrowed money, 
 taking the title in the name of the lender, 
 and goes into posession under an agree- 
 ment with the lender that the title is to 
 be conveyed to him whenever he repays 
 the loan, his possession will not become 
 adverse as against the lender until he has 
 made an open and explicit disavowal of 
 the lender's title and assertion of title in 
 himself, and such disavowal and asser- 
 tion have been brought home to the 
 lender. Estes v. Long, 71 Mo. 605. 
 
 The possession of a purchaser of land 
 by title bond, who goes into possession 
 and holds for himself, is not the posses- 
 sion of his vendor, who has color of title, 
 so as to perfect the latter's title, under 
 the istsection of the act of i8ig, in seven 
 years, against an otherwise superior title 
 in another. If the purchaser in such case 
 be for some purposes regarded as the 
 tenant at will of his vendor, yet he is not 
 the tenant in fact, and his possession is 
 not that of his vendor, in the sense of 
 the statute. EUege v. Cook, 5 Lea 
 (Tenn.), 622. 1 
 
 The possession of the purchaser of 
 land, under an executory contract, is 
 not adverse to his vendor, although he 
 has paid all the purchase-money and used 
 and occupied the land for his own exclu- 
 sive benefit. The contract, being execu- 
 tory and made in contemplation of a con- 
 veyance by deed, recognizes the legal 
 title as outstanding, and his possession 
 will be treated as in subordination 
 thereto and not as adverse. Williams v. 
 Snidow, 4 Leigh (Va.), 14; Gay w. Moffitt, 
 2 Bibb (Ky.), 506; Nowlin v. R.eynolds,25 
 Gratt. (Va.) 137. 
 
 A case of sale on credit, purchase- 
 money not paid, and no title conveyed 
 to the purchaser. Under an execution 
 against the purchaser, the sheriff levied 
 oh and sold the lands to M, who received 
 a sheriff's deed, and went irito posses- 
 sion, and held under claim of right, for 
 more than ten years. Held, that M ac- 
 
 quired no title by his purchase; but, go- 
 ing into possession under claim of right, 
 he was an adverse holder, and the statute 
 of limitations had perfected a bar in his 
 favor. Miller v. The State, 38 Ala. 600. 
 See, also, Smilie tj. BifHe, 2 Penn. St. 52; 
 Steele v. Johnson, 4 Allen (Mass.), 425; 
 Clark V. Gilbert, 39 Conn. 94; Northrop 
 V. Wright, 7 Hill (N. Y.), 476; Beverly v. 
 McBride, 9 Ga. 440; McCall v. Neely, 3 
 Watts, 69; Woodward v. Blanchard, 16 
 111. 424; Angell on Lim. (6th Ed.) §§ 406 
 et seq. 
 
 Possession by virtue of an executory 
 contract with one who himself claims 
 under a like contract from the patentee 
 is not adverse to that of the patentee 
 until the latter repudiates his contract by 
 selling to other parties, in which case 
 possession under the executory contract 
 will be adverse to that of the second 
 vendee. Pearson z/. Boyd, 62 Tex. 541 i 
 Roosevelt v. Davis, 49 Tex. 463; Keys 
 V. Mason, 44 Tex. 144. 
 
 One who holds under an executory 
 contract cannot make his possession ad- 
 verse by taking a lease from another 
 party. Pratt v. Canfield, 67 Mo. 50. 
 
 A bond for title will give color of title. 
 Elliott V. Mitchell, 47 Tex. 445; Scar-' 
 borough V. Arrant, 25 Tex. 131; Miller 
 V. Alexander, 8 Tex. 36; Spitler v. Sco- 
 field, 43 Iowa. 571. 
 
 A tax certificate is evidence of the pur- 
 chase of the land, after the expiration of 
 the time for redemption, and upon notice 
 to the owner the purchaser is entitled to 
 a deed^ This deed may be sufficient for 
 color, even if too defective to convey 
 title. McKeighan v. Hopkins, 14 Neb. 
 361; Bride v. Watt, 23 111. 507. 
 
 Twenty years' actual possession of a 
 lot under contract of purchase is a bar to 
 ejectment as to any part of the land 
 within the inclosure. Schneider v. 
 Botsch, go 111. 577; Hubbard v. Stearns, 
 86 111. 35. 
 
 Sub-purchaser. — When a purchaser of 
 land, under an executory contract, is let 
 into .possession, not having paid the 
 purchase-money nor received a convey- 
 ance, his possession becomes adverse 
 when he pays the purchase-money, and 
 not before; but if he sells and conveys 
 to a third person, who pays the stipu- 
 lated price, and is placed- in possession, 
 the possession of such sub-purchaser 
 is adverse to the original vendor, and 
 will ripen into a title under the stat- 
 ute of limitations, although the first pur- 
 chaser never paid the purchase-money, 
 and never acquired any title. Beard v. 
 
 230 
 
Hostile. ADVERSE POSSESSION. Executory Contract 
 
 merit by payment of the purchase-money, his possession is from 
 that time adverse to the vendor.^ 
 
 Ryan, 78 Ala. 37; Walker v. Crawford, 
 70 Ala. 567 ; State v. Conner, 69 Ala. 212. 
 See James v. Patterson, 62 Ga. 527. 
 
 T sold to D a tract of land, and gave 
 bond for title. D, being unable to make 
 his payment, sold to A, who agreed to 
 pay T, an4 to extend to D for a certain 
 time the right to repurchase. A being 
 involved, the title was conveyed to W, to 
 be held by him during D's right to re- 
 purchase. D failed to repurchase, and 
 W then delivered the deed to A, whose 
 heirs held adversely about twenty years, 
 and then brought suit to have the legal 
 title, outstanding in the heirs of W, sur- 
 rendered and conveyed to them, field, 
 that the claim of the heirs of A had ri- 
 pened into a good legal title by lapse of 
 time, and that they were entitled to re- 
 lief. Gladney v. Barton, 51 Miss. 216. 
 
 The posses,sion of land by the holder 
 of a bond for titles, with some of the pur- 
 chase-money unpaid, is permissive, and 
 the same does not become adverse to the 
 maker of the bond though the holder has 
 conveyed the premises by deed to an in- 
 nocent purchaser from himself, yielded 
 possession to such purchaser, and after- 
 wards resumed and held it under a re- 
 conveyance by deed from his own ven- 
 dee. A second vendee by deed from the 
 holder of the bond cannot, in a contest 
 with the maker of the bond, tack to his 
 own possession any part of that of the 
 holder of the bond, the same not being 
 adverse; nor can he tack to his own the 
 possession of the first vendee by deed, 
 because the two adverse possessions hav- 
 ing been separated by an intervening 
 permissive possession, the continuity of 
 adverse holding was interrupted. Ruth- 
 erford V. Hobbs, 63 Ga. 243. 
 
 A. having contracted to purchase lands 
 of B, paid part of the purchase-money, 
 but titles were never made. A gave the 
 bond to his son, C, who went into pos- 
 session. Held, that his possession was 
 adverse, both as to A and B. Hunter v. 
 Parsons, 2 Bailey (S. Car.). 59. 
 
 1. Moringw. Abies, 62 Miss. 263; Niles 
 V. Davis, 60 Miss. 750; Brown v. King, 
 5 Mete. (Mass.) 173: Bryan ». Atwater, 5 
 Day (Conn.), 181; Catlino v. Decker, 38 
 Conn. 262; Potts v. Coleman, 67 Ala. 
 221; Tillman v. Spann, 68 Ala._ 102; 
 Taylor v. Dugger, 66 Ala. 445. Compare 
 Core V. Faupel, 24 W. Va. 238. 
 
 A vendor of land received the pur- 
 chase-money, gave his vendee a bond for 
 title, and died in possession without ever 
 having done an act inconsistent with his 
 
 vendee's title. His administrators sold 
 the land as part of his estate. Upon a 
 bill filed by the first vendep, more thar» 
 ten years after the transa,ction for, spe- 
 cific performance, and to annul the deed- 
 made by the administrators, it was ruledi 
 that the original vendor held the naked 
 legal title in trust for the vendee; that 
 the purchaser at administrator's sale- 
 stood in the same situation, and the stat- 
 ute was no bar. Harris v. King, 16 Ark. 
 122. 
 
 The possession of a purchaser under 
 an executory contract is not adverse to 
 his vendor, although he has paid all the 
 purchase-money and used and occupied 
 the land for his exclusive benefit. His 
 contract, being executory and made in 
 contemplation of a further conveyance of 
 the lega^ title, recognizes the title in his 
 vendor, and his holding will be regarded 
 as in subordination thereto and not ad- 
 verse. Core V. Faupel, 24 W. Va. 238. 
 
 V/here sale is made unconditionally 
 and the purchase-money paid, under an 
 agreement that a deed shall be executed, 
 the possession of the vendee becomes at 
 once adverse. Ridgeway v. Holliday, 59 
 Mo, 444. 
 
 In ejectment by N. against M. it ap- 
 peared that B.'s original possession had 
 come down regularly to M.; that B, pur- 
 chased the land from C. , taking C.'s bond 
 for title and giving three notes, which C. 
 sold to J. and which B. paid at maturity, 
 taking from J. a deed with the usual 
 warranty of title; that B. took actual pos- 
 session of the land before wholly paying 
 the notes; that J. was a bona-Jide holder 
 for value, not knowing that the true 
 title was in N., under whom C. held by 
 bond for title only, with the purchase- 
 money not fully paid; and that notice of 
 C.'s want of title never reached B. until 
 he had become bound to pay J. Held, 
 that the possession on which M.'s pre- 
 scriptive title rested had its commence- 
 ment under circumstances consistent 
 with good faith in the possession. New- 
 ton V. Mayo, 62 Ga. u. 
 
 In 1845 N. sold a tract of land to his 
 son C, who was then 17 years old, re- 
 ceived the entire purchase-money, exe- 
 cuted a deed or title bond thereto, which, 
 was lost or mislaid, and never entered 
 of record, and delivered it to C. and put 
 him in possession of the land, who im- 
 mediately erected a dwelling-house 
 thereon, and put up other buildings. 
 Soon after tlfis sale was made to C, N. 
 conveyed this land and other property to 
 
 231 
 
Hostile. 
 
 AD VERSE POSSESSION. Tenants in Common. 
 
 Where one enters under an executory contract he may set up 
 as a defence the statutory limitation as against persons other 
 than his vendor.^ 
 
 7. Tenants in Common. — The possession of one tenant in com- 
 mon, though exclusive, being consistent with the right of his co- 
 tenant, does not amount to a disseisin of the co-tenant ; and an 
 ouster, or some act which the law deems equivalent to an ouster, is 
 necessary to constitute a disseisin of his co-tenant by a tenant in 
 common. 
 
 Thus, where one tenant in common occupies the common 
 property notoriously as the sole owner, using it exclusively, im- 
 proving it, and taking to his own use the rents and profits, or 
 otherwise exercising over it such acts 6i ownership as manifest 
 unequivocally an intention to ignore and repudiate any right in 
 his co-tenants, such occupation or acts and claim of sole ownership 
 will amount to a disseisin of his co-tenants, and his possession will 
 be regarded as adverse from the time they have knowledge of such 
 acts or occupation and claim of exclusive ownership.* 
 
 « 
 Gas. Co., 84 Mo. 352 ; Campau v. 
 Campau, 44 Mich. 31; Abercrombie v. 
 Baldwin, 15 Ala. 371; Neely v. Neely, 
 79 N. Car. 478; Linker v. Benson, 67 N. 
 Car. 150; Fouike v. Bond, 41 N. J. L. 
 527; Manchester v. Doddridge, 3 Ind. 
 360; Stevens v. Wait, 112 III. 544; Ball 
 V. Palmer, 81 111. 370; Winter v. Haines, 
 84 111. 585; Busch w. Huston, 75 111. 344; 
 Young V. Heffner, 36 Ohio St. 232 ; 
 Knowles v. Brown, 28 N. W. Repr. 
 (Iowa), 409; Burns v. Byrne, 45 Iowa, 
 285 ; Challefoux w. Ducharme, 8 Wis. 
 287; Abernathie v. Mining Co., 16 Nev. 
 260 ; Bath v. Valdez, 11 Pac. Repr. 
 (Cal.) 724; TuUy v. Tiilly, g Pac. Repr. 
 (Cal.) 841; Unger v. Mooney, 63 Cal. 
 586; Colman v. Clements, 23 Cal. 245; 
 HoUey v. Hawley, 39 Vt. 534; Bellis v. 
 Bellis, 122 Mass. 414; Hall v. Stevens, 9 
 Mete. (Mass.) 418; Catlino v. Decker, 38 
 Conn. 362; Jackson v. Smith, 13 Johns. 
 (N. Y.)4o6; Kathan w. Rockwell, 16 Hun 
 (N. Y.K.go; Millard v. McMullin, 68 N. 
 Y. 352; Woolsey v. Morss, 19 Hun (N. 
 Y.), 273; Culver v. Rhodes, 86 N. Y. 348. 
 
 A grandchild cannot, after the lapse of 
 more than twenty years from the attain- 
 ment of his majority, bring a suit for 
 partition of land against other' grand- 
 children who have been in undisputed 
 and adverse possession since the death 
 of the common ancestor, for more than 
 that length of time. Johnson v. Filson, 
 8 N. E. Repr. 111. 318. 
 
 Where a conveyance is made by a 
 party in the exclusive possession, under 
 a deed which purports to convey the 
 whole property, and the grantee goes in- 
 to the open and notorious possession of 
 
 S. to secure certain debts; and in i86g 
 the trustee sold the land under the trust- 
 deed to R., who brought ejectment 
 against C. to recover the land. On the 
 trial, after R. had introduced the deeds, 
 C. proved the above facts, and then 
 proved that he had been in actual adverse 
 possession since 1845. Held, that C.'s 
 title was complete. Nowlin v. Reynolds, 
 25 Gratt. (Va.) 137. 
 
 Presumption of Payment from Lapse of 
 Time, — A, presumption of the payment 
 of the purchase-money from mere lapse 
 of time, in favor of a purchaser in pos- 
 session under an executory contract, does 
 not arise until after the expiration of 
 twenty years from the commencement of 
 his possession. Taylor v. Dugger, 66 
 Ala. 444. 
 
 1. Elliott V. Mitchell, 47 Tex. 445. 
 
 2. Clymer w. Dawkins, 3 How. (U. S.) 
 674; McCIung V. Ross, 5 Wheat. (U. S.) 
 116; Union, etc., M. Co. z'. Taylor, 100 U. 
 S. 37; Caperton v. Gregory, 11 Gratt. 
 (Va.) 505; Terrill v. Murray, 4 Yerg. 
 (Tenn.) 104; Lodge v. Patterson, 3 Watts 
 (Pa.), 74; Long V. Mast, II Pa. St. 189; 
 Bennet v. Bullock, 35 Pa. St. 364; Dike- 
 man V. Parrish, 6 Pa. St. 225; s. c, 47 
 Am. Dec. 455; Peck v. Ward, 18 Pa. St. 
 506; Covey V. Porter, 22 W. Va. 121; 
 Bogges V. Meredith, 16 W. Va. i; Rust 
 V. Rust, 17 W. Va. 901; Van Bibber v. 
 Frazier, 17 Md. 436; Roberts v. Smith, 
 21 S. Car. 455; Teal v. Terrell, 58 Tex. 
 257; Peeler v. Guilkey, 27 Tex. 355;. 
 Squires v. Clark, 17 Kans. 84; Warfield 
 V. Lindell, 30 Mo. 272, 38 Mo. 561; 
 Lapeyre v. Paul, 47 Mo. sg'o; McQuiddy 
 ti. Ware, 67 Mo. 74; Campbell v. Laclede 
 
 233 
 
Hostile, 
 
 ADVERSE POSSESSION. 
 
 Onster. 
 
 8. Ouster. — Ouster is a question of fact which it is the province 
 of the jury to determine, and the facts and circumstances which 
 go to establish the ouster ought, under proper instructions from 
 the court, to be submitted to the jury.^ 
 
 To effect an ouster of the co-tenant there must be an actual, 
 continued, visible, notorious, distinct, and hostile possession. It 
 must be such that knowledge of its existence is brought home to 
 the co-tenant.* 
 
 the whole, neither grantor nor grantee 
 having notice of a co-tenancy, their pos- 
 session, if for the statutory period, will 
 create a good title by adverse possession 
 in the grantee. A party who is in pos- 
 session of land under a deed will not be 
 estopped from asserting title, by adverse 
 possession, by the action of the probate 
 court in decreeing to the heirs of a former 
 owner an undivided one-half of the 
 property. Had he appeared in the pro- 
 bate proceedings, and set up his adverse 
 title, the probate court would have had 
 no authority to hear and determine the 
 question raised. Bath v. Valdez, ii Pac. 
 Repr. (Cal.) 724. 
 
 Partition. — The doctrine that partition 
 will not lie when the defendant is in ad- 
 verse possession of the premises, does 
 not apply when the plaintiff's title is an 
 equitable one only. Dameron v. Jame- 
 son, 71 Mo. 97. 
 
 Fraud. — If one of the tenants in com- 
 mon has been guilty of fraud, the statute 
 will not run against the other tenants. 
 Austin 7/. Barrett. 44 Iowa, 488. 
 
 1. Johnson v. Gorham, 38 Conn. 513; 
 Cummings v. Wyman, 10 Mass. 465; 
 Taylor v. Hill, 10 Leigh (Va.). 457; Pur- 
 cell V. Wilson, 4Gratt. (Va.) 16; Harmon 
 V. James, 7 Sra. & M. (Miss.) ili; 
 Blackmore v. Gregg, 2 W. & S. (Pa.) 182; 
 Carpentier v. Mendenhall, 28 Cal. 484; 
 Clark V. Crego, 47 Barb. (N. Y.) 599; 
 Gill V. Fauntleroy, 8 B. Mon. (Ky.) 177; 
 Washburn z/. Cutter, 17 Minn. 361; High- 
 stone V. Burdette, 54 Mich. 329; Brod- 
 street v. Huntington, 5 Pet. (U. S.) 402; 
 Ewing V. Burnet, II Pet. (U. S.) 41. 
 And the burden of proof rests upon the 
 party alleging it. Newell v. Woodruff, 
 30 Conn. 492; Van Bibber v. Frazier, 17 
 Md. 436. 
 
 2. Culver v. Rhodes, 87 N. Y. 348; 
 Zeller v. Eckert, 4 How. (U. S.) 295; 
 Barr v. Gratz, 4 Wheat. (U. S.) 213; 
 McClung V. Ross, 5 Wheat. (U. S.) 124; 
 Challefoux v. Ducharme. 8 Wis. 287; 
 Long V. Mast, 11 Pa. St. i8g; Bennet v. 
 Bullock, 35 Pa. St. 364; Hall v. Stevens, 
 9 Mete. (Mass.) 418; Warfieldz/. Lindell, 
 38 Mo. 581. 
 
 After there is an ouster, the excluded 
 
 party must regain possession before he 
 can bring suit for partition. Florence 
 V. Hopkins, 46 N. Y. 182. 
 
 It is sufficient if his acts are of such a 
 nature as by their own import to impart 
 information and give notice to the co- 
 tenants that an adverse possession and 
 an actual exclusive ownership are in- 
 tended to be asserted against them. 
 Campbell v. Laclede Gas Co., 84 Mo. 
 
 352- 
 
 What is, — The acts needful to create an 
 ouster must be an actual and exclusive 
 possession of the whole premises, claim- 
 ing the whole. Florence v. Hopkins, 
 supra, 46 N. Y. 182; Culver v. Rhodes, 
 87 N. Y. 348. 
 
 An exclusive possession, exclusive re- 
 ceipt of rents and profits, and exclusive 
 claim of title. Grim v. Dyar, 3 Duer, 
 354; a public claim of the entire title, a 
 notorious act, an open claim of exclusive 
 right. Smith v. Burtiss. 9 Johns. (N. Y.) 
 174; Culver V. Rhodes, 87 N. Y. 348. 
 
 Evidence must make the intention to 
 hold adversely manifest, and palpably 
 display such intention. Marcy v. Marcy, 
 6 Mete. (Mass.) 360; Prescott v. Nevers, 
 4 Mason (U. S.), 330; Hart v. Gregg, 10 
 Watts (Pa.), 185; Culver v. Rhodes, 87 
 N. Y. 348. 
 
 The evidence to sustain an ouster by a 
 co-tenant must be stronger than that to 
 sustain ordinary adverse possession. 
 Barret v. Coburn, 3 Mete. (Ky.) 513; 
 Forward v. Deetz. 32 Pa. St. 72; Bailey 
 V. Trammell, 27 Tex. 328. 
 
 In ejectment between grantees of ten- 
 ants in common defendant claimed title 
 by adverse possession, and asserted that 
 his entry under a warranty deed was an 
 ouster of the co-tenants. There was ev- 
 idence to show, however, that he only 
 bargained for an undivided interest, and 
 there was nothing to show that the co- 
 tenants knew of his possession or claim 
 of title. Hild. for the jury to determine 
 whether he entered claiming title to the 
 whole, and intending to oust his co-ten- 
 ants. Highstone v. Burdette, 54 Mich. 
 329. 
 
 If the hostile character of the posses- 
 sion is so openly manifested that his 
 
 233 
 
Hostile. 
 
 ADVERSE POSSESSION. Conveyance by Co-tenant. 
 
 9. Conveyance by a Co-tenant. — Where one co-tenant assumes to 
 convey the entire land, and does convey by metes and bounds, his 
 deed will give color of title ; and if possession is taken thereunder, 
 
 observation as a man reasonably care- 
 ful of his interests would be sufficient to 
 discover it, he will be deemed to have no- 
 tice. Thus, where one of two tenants in 
 common conveys to a third person by deed 
 purporting to convey the whole land, and 
 the deed is recorded by the grantee, who 
 enters under it, such entry is hostile in 
 its nature, and the mere fact of posses- 
 sion by a stranger is enough to put him 
 on inquiry, and charge him with notice. 
 So, the making of valuable improve- 
 ments, paying the taxes upon the land, 
 and receiving the rents and profits with- 
 out accounting or offering to account, 
 are circumstances indicating an adverse 
 holding, and their effect upon the co-ten- 
 ant is the same as if notice were directly 
 communicated to him. The means of 
 knowledge being furnished by the open 
 and notorious character of the posses- 
 sion, he is charged with actual notice. 
 Unger v. Mooney, 63 Cal. 586; s. c. 49 
 Am. Rep. 100. See Culver v. Rhodes, 
 86 N. Y. 348; Clark v. Crego, 47 Barb. 
 (N. Y.) 599; Grim v. Dyar, 3 Duer (N. 
 
 Y.) 354- 
 
 The plaintiff, being one-half owner of 
 a grist-mill, conveyed his interest to the 
 defendants' grantors, who then owned 
 the other half, and in his deed bounded 
 the premises by the north line of the 
 grist-mill building. Afterwards the de- 
 fendants, without permission of the 
 plaintiff, enlarged the flume across the 
 common land, and in so doing built a 
 thick wall of solid masonry and increased 
 . the width of the waterway thereon; and 
 it was found by a referee that this appro- 
 priation of the common land by the de- 
 fendants amounted to an ouster of the 
 plaintiff. Held, that the defendants were 
 not liable to the plaintiff in an action of 
 trespass quare clausum, it appearing that 
 the plaintiff had a subsequent right to 
 take water from the fiume. Johnson v. 
 Conant, 3 N. Eng. Repr. (N. H.) 163. 
 
 Defendant took a deed from one of 
 several heirs for his undivided interest 
 in a large quantity of land, whereupon 
 he took possession of and improved 
 eighty acres of it. rented it for a number 
 of years, and collected the rents and 
 paid the taxes, and afterwards moved 
 upon it, and occupied it continuously as 
 a homestead, and exercised all ordinary 
 acts of ownership, up to the beginning 
 of this suit — more than twenty years sub 
 sequent to the date of his deed; the co- 
 
 heirs of his grantor never in the mean- 
 time making any claim to any interest 
 in the eighty acres, though two of them 
 lived near the land. In this action, 
 brought by plaintiff (who had obtained 
 quit-claim deeds from some of the heirs) 
 to quiet the title in him to an undivided 
 interest in the land, defendant testified 
 that he bought and paid for the whole 
 eighty, and that he supposed that he had 
 acquired it by his deed; and his testi- 
 mony was notdisputed, but was strongly 
 corroborated by all the facts, except the 
 deed itself. Held, that defendant had 
 held possession of the land under a 
 claim of sole ownersl^ip from the date of 
 his deed; that his alleged co-tenants 
 must be presumed to have had knowl- 
 edge of his claim, and that he had a good 
 title by adverse possession as against the 
 plaintiff. Laraway v. Larue, 63 Iowa, 
 407; see Fouike v. Bond, 41 N. J. L. 
 527. Compare Moore v. Antill, 53 Iowa, 
 612; Kathan v. Rockwell, 16 Hun (N. 
 Y.), 90. 
 
 Payment of taxes and occasional use 
 of the land will not constitute ouster. 
 McQuiddy v. Ware, 67 Mo. 74. 
 
 In 1820 R. conveyed to A. an undivid- 
 ed half of the premises. In 1836 W. 
 conveyed the other undivided half to 
 school trustees, who built a school-house, 
 and occupied it until 1873. The district 
 conveyed the premises to B., he being 
 told after the sale, but before the execu- 
 tion of the deed, that the district had 
 title to but one half ot the premises. He 
 had also knowledge of A.'s claim. Held, 
 that the possession of the district was 
 not adverse to A. Kathan v. Rockwell, 
 16 Hun (N. Y.), go. 
 
 A father moved away, leaving his son 
 in possession of the farm, who always 
 asserted his title, saying his father gave 
 it to him. Held, that his possession was 
 adverse to the other heirs of his father. 
 Jackson v. Whitbeck, 6 Cow. (N. Y.) 632. 
 
 Where one of several heirs bought the 
 interest of one of his co-heirs in a tract 
 of land, and after such purchase paid 
 the taxes, took timber from the land, and 
 also used it as a pasture, held, that the 
 act^ were consistent with his interest as 
 a tenant in common therein, and did not 
 constitute ouster of his co-tenants. Mc- 
 Quiddy V. Ware, 67 Mo. 74. 
 
 One tenant in common of a tract of 
 land bordering upon the sea inclosed a 
 portion by a" bank wall, and placed upon 
 
 234 
 
Hlostile. 
 
 ADVERSE POSSESSION. Conveyance by Co-tenant. 
 
 the purchaser claiming title to the whole premises, it will amount 
 to an actual ouster and disseisin of the other tenants, and such 
 
 a part of it a lish-house, not fastened to 
 the soil, and susceptible of easy removal, 
 and a pump. He afterwards let the fish- 
 house, receiving rent therefor, paid taxes 
 on the house, but not, eo nomine, on the 
 land. The other tenants in common 
 used the fish-house as they found it con- 
 venient to do so. The pump was used 
 as a common convenience by the neigh- 
 borhood; and the land thus inclosed was 
 "used as a place of common resort for 
 smoking and conversation, and as a 
 place where all might draw up their 
 boats. Held, that such use and occupa- 
 tion, even if continued for twenty-nine 
 years, would not amount to an ouster of 
 the co-tenants. Ingalls v. Newhall, 139 
 Mass. 268. 
 
 A brother and his married sister being 
 the owners of land in coparcenary, the lat- 
 ter in 1837, by a paper purporting to be a 
 •deed signed and acknowledged by her, 
 but without privy examination or joinder 
 thei-ein by her husband, conveyed to the 
 former her interest in said land, he being 
 &X. the time in the possession thereof and 
 so continuing thereafter until his death, 
 in 1859, when his devisees succeeded 
 him and continued in possession up to 
 1881, at which time the heirs of the sis- 
 ter brought suit for partition of the land, 
 the sister having remained under cover- 
 ture until a short time before her death, 
 which occurred in 1879; the brother and 
 his devisees during the whole period 
 from 1837 to 1859 having occupied the 
 land notoriously as sole owners, using it 
 exclusively, taking the entire rents and 
 profits, making costly improvements 
 thereon, and otherwise exercising over 
 it such acts of ownership as manifested 
 an unequivocal intention to repudiate 
 any right or claim of the sister in the 
 land. Held, notwithstanding said deed 
 wras void as a conveyance or contract 
 •of sale, it was sufficient prima facie to 
 give notice of an intention to hold ad- 
 versely; and the subsequent possession 
 of the brother and his devisees, under 
 the circumstances, operated as a bar to 
 the right of his sister, although she con- 
 tinued under coverture the whole time; 
 and the plaintiff's bill was properly dis- 
 missed. Cooey V. Porter, 22 W. Va. 121. 
 
 If the possession of a tenant in com- 
 mon is adverse to his co-tenant, it will 
 not lose its hostile character by the for- 
 mer tendering a quit-claim deed to the 
 latter, and requesting him to sign it, 
 there being no offer to purchase, nor any 
 acknowledgment of the tenancy, lin- 
 
 ger V. Mooney, 63 Cal. 586; s. c, 49 
 Am. Rep. 100. 
 
 Taking of a deed by one tenant in 
 common from a third person, and spread- 
 ing it on the record, will have no effect 
 as the equivalent of an ouster, unless ac- 
 companied and followed by a hostile 
 claim of which the co-tenant had knowl- 
 edge, and by acts of possession, not only 
 inconsistent with, but exclusive of, the 
 right of such co-tenant. HoUey v. Haw- 
 ley, 39 Vt. 532. See Culver v. Rhodes, 
 87 N. Y. 348. 
 
 A sole and uninterrupted possession 
 and taking of profits by one tenant in 
 common, with the knowledge of the 
 other, continued for a long series of 
 years, without any perception of profits 
 or demand for them by the co-tenant, if 
 unexplained or controlled by any evi- 
 dence tending to show a reason for such 
 neglect or omission, will be evidence of 
 an ouster. Lefavor u. Horaan, 3 Allen 
 (Mass.), 354; Ewer v. Lovell, 9 Gray 
 (Mass.) 276. 
 
 To make a possession of tenant in 
 common adverse as against the other, it 
 is not necessary that notice should be 
 given of the adverse intent; but the in- 
 tent must be manifested by outward acts 
 of an unequivocal kind. Humbert v. 
 Trinity Church, 24 Wenc^. (N. Y.) 587; 
 Lodge V. Patterson, 3 Watts (Pa.), 74; 
 Owen V. Morton, 24 Cal. 373; Weisinger 
 V. Murphy, 2 Head (Tenn.). 674; Culler 
 V. Motzer, 13 S^ & R. (Pa.) 356; s. c, 15 
 Am. Dec. 604; Abernathie v. Consoli- 
 dated Va. M. Co., 16 Nev. 260; Brad- 
 street V. Huntington, 5 Pet. (U. S.) 402. 
 
 Witnessing a will of one co-tenant de- 
 vising all the land, by another co-tenant, 
 and hearing it read, held an ouster. 
 Miller v Miller, 60 Pa. St. 16; see Coker 
 V. Ferguson, 70 Ala. 284. 
 
 An exclusive appropriation of a part 
 of the land to his own use by the erec- 
 tion of a permanent structure would be 
 evidence of an ouster of his co-tenant. 
 Bennett v. Clemence, 6 Allen (Mass.), 10. 
 
 Where one of the tenants took posses- 
 sion of the land, and improved for a long 
 period of time, held that he held ad- 
 versely. Campeau v. Dubois, 39 Mich. 
 274; Lapeyre v. Paul, 47 Mo. 586. 
 
 The mere possession of the common 
 premises by one co-tenant, and appro- 
 priation of the rents thereof, is not suffi- 
 cient to make out a case of adverse pos- 
 session against a co-tenant. There must 
 be outward acts of exclusive ownership 
 of an unequivocal characiv.r. Tudd v. 
 
 235 
 
Hostile. 
 
 ADVERSE POSSESSION. Conveyance by Co tenant. 
 
 possession is adverse, and, if continued for a sufficient length of 
 time, will bar the right of the other co-tenants to recover.* 
 
 Todd, 7 N. E. Repr. (111.) 583; Busch v. 
 Huston, 75 111. 343; Lapeyre v. Paul, 47 
 Mo. 586; Whiting v. Dewey, 15 Pick. 
 (Massi) 428; Parker w. Prop'rs, 3 Mete. 
 (Mass.) 91; Susquehanna, etc., R. Co. v. 
 Quick. 61 Pa. St. 328. • 
 
 1. Ungerz/. Mooney, 63 Cal. 586; Pack- 
 ard V. Moss, S Pac. Repr. (Cal.) 818; 
 Abernathie v. Consolidated Va. M. Co., 
 16 Nev. 260; Long v. Stapp, 49 Mo. 508; 
 Warfield v. Lindell, 30 Mo. 282; s. c, 
 38 Mo. 578; Lapeyre v. Paul, 47 Mo. 
 590; Goewey v. Urig, 15 111. 242; Hink- 
 ley V. Green, 52 III. 230; Kinney v. Slat- 
 tery, 51 Iowa, 353; Nelson v. Davis, 35 
 Ind. 474. Sands v. Davis, 40 Mich. 14; 
 Campau w. Dubois, 39 Mich. 274; Thomas 
 V. Pickering, 13 Me. 337; Higbee v. 
 Rice, 5 Mass. 352; s. c, 4 Am. Dec. 63; 
 Marcy v. Marcy, 6 Mete. (Mass.) 360; 
 Rickard v. Riekard, 13 Pick. (Mass.) 251; 
 Bigelow V. Jones, 10 Pick. (Mass.) 161; 
 Parker v. Prop'rs. etc., 3 Mete. (IVIass.) 
 91; s. e., 37 Am. Dee. 121; Kittredge v. 
 Prop'rs, etc., 17 Pick. (Mass.) 246; 
 Hodges V. Eddy, 38 Vt. 327; Forest v. 
 Jackson, 56 N. H. 357; Clark z/. Vau- 
 ghan, 3 Conn. 191; Clapp ti. Broma- 
 gham. 9 Cow. (N. Y.) 530; Bogardus v. 
 Trinity Church. 4 Paige (N. Y.). 178; 
 Jackson v. Smith, 13 Johns. (N. Y.) 406; 
 Foulke V. Bond, 41 N. J. L. 527; Culler 
 V. Motzer, 13 S. & R. (Pa.) 356; s. e., 15 
 Am. Dec. 604; Lodge v. Patterson, 3 
 Watts (Pa.), 74; Mehaffy v.. Dobbs, 9 
 Watts (Pa.), 363; Law v. Patterson, I W. 
 & S. (Pa.) 184. 191; Frederick v. Gray, 
 10 S. & R. (Pa.) 182; Dikeman v. Par- 
 rish, 6 Pa. St. 210; s. c, 47 Am. Dec. 
 455; Caperton v. Gregory, II Gratt. (Va.) 
 508; Black V. Lindsay, Busb. (N. Car.) 
 467; Covington v. Stewart. 77 N. Car. 
 148; Thomas w. Garvan, 4 Dev. (N. Car.) 
 223; Cloud V. Webb, 4 Dev. (N. Car.) 
 290; Gray v. Bates, 3 Strob. (S. Car.)498; 
 Hart V. Bostwiek, 14 Fla. 162; Home v. 
 Howell, 46 Ga. 9; Cain v. Furlow, 47 
 Ga. 674; Abercrombie v. Baldwin, 15 
 Ala. 363; Alexander v. Kennedy, 19 Tex. 
 488; Gill V. Fauntleroy. 9 B. Men. (Ky.) 
 177; Weisinger v. Murphy, 2 Head 
 (Tenn.), 674; Ashley v. Rector. 20 Ark. 
 359; Hovenden v. Lord Annesley, 2 Scho- 
 ales & L. 628; Doe v. Prosser, Cowp. 
 217; Townsend & Pastor's Case, 4 Leon. 
 52; Reed v. Taylor, 5 Barn. & Adol. 
 
 575- 
 V Proof of a verbal sale of the interest of 
 one of the heirs to an estate to another 
 of the heirs, followed by 20 years' ad- 
 verse possession in such other heir, held 
 
 to create a sufficient title in tbe latter.. 
 Hyne v. Osborne, 28 N W.Rep.(Mich.) 821. 
 
 In ejectment between grantees of 
 tenants in common, defendant claimed 
 title by adverse possession, and asserted 
 that his entry under a warranty deed was. 
 an ouster of the co-tenants. There was 
 evidence to show, however, that he only 
 bargained for an undivided interest, and 
 there was nothing to Show that the eo 
 tenants knew of his possession or claim 
 of title. Held^ for the jury to determine- 
 whether he entered claiming title to the. 
 whole, and intending to oust his co- 
 tenants. Highstone v. Burdette, 54. 
 Mich. 329. 
 
 Complainants and those under whom 
 they claimed had had fifty years' open, 
 notorious, and continuous possession of 
 lands, under duly recorded deeds pur- 
 porting to convey the entire estate 
 therein. Held, that their title was valid, 
 as against one claiming under the former 
 owner of an undivided interest. Watsoa 
 V. Jeffrey, 39 N. J. Eq. 62. See Lapeyre 
 V. Paul, 47 Mo. 586; Sydnor v. Palmer, 
 2g Wis. 226. 
 
 If there be parol exchange of lands, 
 for purposes of mutual tenancy, the pre- 
 sumption is that the possession is not 
 adverse, but permissive; but in such 
 case, if the proof show a hostile claim of 
 title by either of the occupants, posses- 
 sion for ten years under such clairt) may 
 mature into a good title. Alexander v. 
 Wheeler, 69 Ala. 332. 
 
 Where one of several tenants in com- 
 mon conveys land, excepting and reserv- 
 ing the interest of his co-tenants, and 
 the grantee takes possession of the whole 
 ijnder an agreement with the grantor to 
 pay the taxes for and on behalf of the 
 co-tenants, such possession, without a. 
 subsequent ouster or disseisin, cannot be 
 regarded as adverse to them, and the 
 purchaser cannot invoke the limitation 
 law to defeat the assertion of their 
 rights. Grand Tower, etc., Co. v. Gill, 
 III III. 541. 
 
 An owner of land conveyed the same 
 to his five children. One of the grantees 
 afterwards reconveyed to the original 
 grantor, but by deed purporting to con- 
 vey, not the undivided one-fifth interest 
 which he held, but the entire tract It 
 was considered, however, that the legal 
 effect of the reconveyance was, under the 
 circumstances, the same as if it had pur- 
 ported to convey only the interest wliicht 
 the grantor therein field — an undivided! 
 one-fifth part. So the original grantor^ 
 
 236 
 
Hostile. 
 
 ADVERSE POSSESSION. 
 
 Life Estate. 
 
 10. Life Estate. — The possession of land by a tenant for life can- 
 not be adverse to the remainder-man ; and if he sells and conveys 
 to a third person, by words purporting to pass the absolute prop- 
 erty, the possession of the purchaser is not, and cannot be during 
 the continuance of the life estate, adverse to the remainder-man.'- 
 
 having thus acquired an undivided one- 
 fifth interest in the land, became a tenant 
 in common with the other four owners to 
 whom he had previously conveyed, and 
 his possession in that relation was not 
 adverse to them. Stevens v. Wait, ii2 
 111. 544. 
 
 1. Pickett v. Pope, 74 Ala. 122, 65 Ala. 
 4S7; Keith V. Keith, 80 Mo. 125; Sutton 
 V. Casseleggi. 77 Mo. 397; Dewey v. 
 McLain. 7 Kan 126 ; s. c, 12 Am. 
 Rep. 418 ; Hanson v. Johnson, 62 Md. 
 25; s. c, 50 Am. Rep. 199; Bedell v. 
 Shaw, 59 N. Y. 49; Sands v. Hughes, 53 
 N. Y. 294; Devye v. Schaefer, 55 N. Y. 
 446; Christie v. Gage, 71 N. Y. 189; 
 Pinckney v. Burrage, 31 N. J. L. 21; 
 Poor V. Larrabee, 58 Me. 543; Gernet v, 
 Lynn, 31 Pa. St. 94; Henley v. Wilson, 
 ' 77 N. Car. 216; McCarry v. King, 3 
 Humph. (Tenn.) 267; s. c, 39 Am. Dec. 
 165; Turman v. White. 14 B. Mon. (Ky.) 
 560; Simmons li. McKay, 5 Bush (Ky.), 
 31; Jones V. Freed, 42 Ark. 357; Nichol- , 
 son V. Caress, 59 Ind. 39; Carpenter v. 
 Denoon, 29 Ohio St. 379. 
 
 Possession under a sheriff's deed pur- 
 porting to convey the interest which the 
 judgment debtor had on a certain day is 
 not adverse to the debtor's wife; and no 
 length of such possession is a bar 10 her 
 claim of dower. Cowan v. Lindsay, 30 
 Wis. 586. 
 
 A widow to whom dower is assigned 
 comes in under the heir to whom her 
 possession can never become adverse. 
 Molloy V. Bruden, 86 N. Car. 251; Mus- 
 ham'^. Musham, 87 111. 80. Nor can 
 the possession of her tenant under a 
 lease she had no authority to make. Mel- 
 vin V. Waddell, 75 N. Car. 361. Nor the 
 grantee under her deed. Culver v. 
 Rhodes, 86 N. Y. 348. But where a 
 widow remained in occupation of her de- 
 ceased husband's residence for a long 
 number of years, claiming ownership, it 
 was held that her possession was adverse 
 to the heirs. Hogan v. Kurtz, 94 U. S. 
 773. 'But her declaration that the hus- 
 band had devised the land to her, pre- 
 vented her possession becoming adverse. 
 Breidegam v. Hoffmaster, 61 Pa. St. 
 223. 
 
 Adverse possession is held as against 
 one's grantor by one who has taken a, 
 warranty deed of the premises in reliance 
 on the record title and in ignorance of 
 
 any life-lease outstanding in the grantor. 
 Case u. Green, 53 Mich. 615. 
 
 Where a deed conveyed a life estate, 
 and the grantee remained in possession- 
 thirty years or more, the heirs of the 
 grantor setting up no claim to the re- 
 version, held, that the occupancy for so 
 long a period becomes in itself an inde- 
 pendent source of title. Osborne v. An- 
 derson, 89 N. Car. 261. 
 
 The appellee B. had possession and 
 paid taxes for above 20 years, under a 
 quitclaim deed. His grantor had an es- 
 tate /car nw^r^ otV, and the appellant and 
 another are the reversioners. The will 
 under which the appellee's grantor ac- 
 quired his title was never recorded, 
 nor, so far as the proof shows, brought 
 to the notice of appellee. Held, under 
 these circumstances, his possession has 
 been adverse to the reversioners, and 
 the bar of the statute is complete. Saf- 
 ford V. Stubbs, 7 N. East. Repr. (III.) 653. 
 
 Possession does not begin to be ad- 
 verse as against a person entitled after 
 the determination of a prior estate, dur- 
 ing the continuance of that estate. 
 Fleming v. Burnham, 100 N. Y. i. 
 
 Although the remainder-man may have 
 acquired the right to enter, during the 
 continuance of the life estate, his neglect 
 to do so, will not set the statute in 
 motion, as he is not bound to do so until 
 the life estate is determined. Stevens v. 
 Winship, i Pick. (Mass.) 318; ». i.., 11 
 Am. Dec. 178. 
 
 Where a husband conveys in fee land 
 of the wife in which he has courtesy, the 
 statute will not run against the vendee 
 of the wife until the husband's death. 
 Jones V. Freed, 42 Ark. 357. 
 
 A husband of a life tenant may, after 
 her death make a deed which will give 
 color of title. Forest v. Jackson, 56 N. 
 H. 357. 
 
 During the life of the tenant, the pos- 
 session of his grantee is not adverse, and 
 a conveyance then made by the remain- 
 der-man will be valid. Christie i'. Gage, 
 71 N. Y. 187; Hanson v. Johnson, 62 
 Md. 25; s. \-., 50 Am. Rep. 199. 
 
 Where such conveyance has been 
 made, one who enters upon the land may 
 hold adversely against the grantee. Tal- 
 cott V. Draper, 61 111. 56. 
 
 Where one of several remainder-men 
 who was living with the tenant for life 
 
 237 
 
Hostile. 
 
 ADVERSE POSSESSION. Landlord and Tenant. 
 
 The estate of the life tenant may be acquired adversely, and held 
 during the continuance of the life estate.^ 
 
 But after the life estate falls in, the possession will be adverse as 
 to the reversioner.* 
 
 11. Landlord and Tenant. — When the relation of landjord and 
 tenant has been created, the possession of the tenant is consistent 
 with the title of the landlord, and the mere non-demand and non- 
 payment of rent are not sufificient to bar the landlord's title, what- 
 ever effect they may have, if long continued, upon his right to re- 
 cover the rent ; and not only is the tenant precluded from relying 
 on his possession to bar his landlord, but also all persons who 
 come in under or derive possession from the tenant in any man- 
 ner, however remotely. In such cases, possession is presumed to 
 be in accordance with the title, and this presumption will hold un- 
 til some notorious and unequivocal act of exclusion shall have oc- 
 curred. ^ 
 
 upon the land, accepted a deed of a 
 portion thereof without warranty and 
 for a nominal consideration, and there- 
 after occupied, claiming to hold the 
 premises conveyed adversely under the 
 deed, but there was no apparent change 
 of possession or occupation, and no 
 notice of a hostile claim given to the co- 
 tenants, held, that the giving and receiv- 
 ing of the deed was not in itself an act 
 hostile to the rights of the co-tenants, 
 but that both the deed and the possession 
 under it were consistent therewith, as 
 the grantor could convey the life estate, 
 so that it gave no notice or intimation of 
 a hostile claim; and that, therefore, there 
 was no adverse possession, such as 
 ■would defeat an action for partition. 
 Culver V. Rhodes, 86 N. Y. 348. 
 
 1. Moore v. Luce, 29 Pa. St. 260. 
 
 2. Christie v. Gage, 71 N. Y, i8g; 
 Jackson v. Schoonmaker, 4 Johns. (N. 
 Y.) 390; Hall V. Vandergrift, 3 Binn. 
 <Pa.) 374; Cheseldine v. Brewer, 4 H. & 
 
 , McH. (Md.) 487; Bradstreet v. Hunting- 
 ton, 5 Pet. (U. S.) 402 ; Henderson v. 
 Griffin, 5 Pet. (U. S.) 151. 
 
 3. Campbell v. Shipley, 41 Md. 81, and 
 cases cited; Whiting v. Edmonds. 94 N. 
 Y. 309; Sands z/. Hughes, 53 N. Y. 287; 
 Cattino v. Decker, 38 Conn. 362; Abbey, 
 etc., Assoc. V. Willard, 48 Cal. 614; Van- 
 duyn v. Hepner, 45 Ind. 589; Dothard v. 
 Denson, 72 Ala. 541; Wells v. Sheerer, 
 78 Ala. 142. 
 
 A tenant cannot by buying in a title 
 adverse to his landlord's relieve himself 
 of the obligations of his tenancy; and if 
 he does so and repudiates the tenancy 
 the landlord can dispossess him. Morse 
 ■V. Byam, 55 Mich. 594. 
 
 A tenant cannot by a disclaimer, or by 
 mere words denying his landlord's title 
 
 and asserting one of his own, work a for- 
 feiture of his tenancy, or set running an 
 adverse possession. The possession of 
 the tenant and of hisgrantees and assigns 
 is that of the landlord, and not hostile 
 or adverse, and this is so as to a grantee 
 who has taken a deed of the fee in igno- 
 rance of the fact that his grantor stood in 
 the relation pf tenant, the latter denying 
 any such relation. The possession of the 
 tenant, thus in subordination to the title 
 of the landlord, continues, not only dur- 
 ing the term, but is presumed to remain 
 unchanged until twenty years after the 
 termination thereof and notwithstanding 
 any claim of the tenant or his successors 
 to a hostile title. Whiting v. Edmunds, 
 94 N. Y. 309. 
 
 T. being in adverse possession of land, 
 and having the same inclosed, leased it 
 to O. Afterward the land was patented 
 as part of a Mexican grant; and O. (with- 
 out the knowledge of T.) attorned to M., 
 the grantor of the defendants, and the 
 owner of the land under the patent; M. 
 having no knowledge of O.'s being in pos- 
 session as tenant for T., and being in- 
 formed by O., upon inquiry, that he was 
 in possession for himself. Subsequently, 
 and more than five years after the issue 
 of the patent, O. surrendered possession 
 to T., who was shortly afterward ejected 
 by the defendants. In an action to re- 
 cover the possession by T. (claiming to 
 have acquired the title by an adverse 
 possession for over five years subsequent 
 to the patent), held, live, possession of 
 O. was sufficient to put all persons upon 
 inquiry as to the capacity in which he 
 held; but M., having made the inquiry 
 without success, was not affected with 
 notice of his relationship to T. 
 
 Therefore, after the attornment of O. 
 
 238 
 
Sostile. 
 
 AD VERSE POSSESSION. Landlord and Tenant. 
 
 To initiate an adverse holding, the tenant must surrender the 
 
 to M. (the latter having no notice, either 
 actual or constructive, that the former 
 held otherwise than for himself), the pos- 
 session of T. through O., his tenant, was 
 not adverse, in a legal sense, to the title 
 of M. and his successors. Thompson u. 
 Felton, 54 Cal. 547. 
 
 A was the tenant of B, who claimed 
 title. C, who was the legal owner of the 
 tenantcy, finding A upon the land, also 
 leased it to him. Held, that the contin- 
 ued possession of A did not keep alive B's 
 claim. Thompson v. Pioche, 44 Cal. 
 508. See Turpin v. Saunders, 32 Gratt, 
 (Va.) 27. 
 
 A superior title is not diverted as to 
 the part not actually occupied by the 
 lessee. Scott v. Elkins, 83 N. Car. 424. 
 See Schuylkill Co. v. McCreary, 58 
 Pa. St. 504; Goodwin v. Sawyer, 33 Me. 
 541; Finley v. Cook, 54 Barb. (N. Y.) 
 
 9- 
 
 When a landlord places a tenant on a 
 tract of land claimed by him, and desig- 
 nates by metes and bounds the subdivision 
 of the tract as the portion which the ten- 
 ant is to occupy, the possession of the 
 tenant, on a question of limitation, can 
 inure to the landlord's benefit only to the 
 extent of the designated metes and bounds 
 set forth in the lease. If the possession 
 be that of one owning an undivided in- 
 terest in the whole tract, it inures to the 
 benefit of the tenants in common owning 
 the other undivided interests, so long as 
 the tract remains undivided. Read v. Al- 
 len, 63 Tex. 154. 
 
 In 1782, J. E. H. leased to J. H. a lot 
 of ground, now fronting about 169 feet on 
 Howard street in Baltimore city, for nine- 
 ty-nine years, with the usual covenant of 
 perpetual renewal, reserving a yearly rent, 
 equivalent to about $43, of the present 
 currency. In 1828, J. E. H.'s executors, 
 under a power in his will, sold and con- 
 veyed the reversion in this lot to a per- 
 son, who, in 1832. conveyed the same to 
 L. S. L. S., in 1S32, accepted a surren- 
 der from E. L. of his leasehold interest 
 in a part of the lot, about 122 feet of its 
 frontage ; and on the same day, by two 
 leases, leased for ninety-nine years, re- 
 newable forever, sixty feet of the same 
 to S. and S., and sixty-two feet and six 
 inches of the same to E. L.. reserving in 
 each lease a yearly rent of $300, L. S. 
 never deposed of her reversion in the 
 residue of the lot, consisting of a front- 
 age of about forty-six feet. In 1864, G. 
 M. E. purchased from the then owners of 
 the leasehold interests, their lot, fronting 
 twenty-two feet on Howard street, a part 
 
 of the residue of the forty-six feet. The 
 deed by which this interest *as conveyed 
 to G. M. E. recited that the grantoi^s ac- 
 quired their title under an assignment 
 from it person named, in 1857, subject 
 to a yearly rent of $88, arid they assigned 
 to G. M. E., subject to the same rent ; 
 and it was assumed that G. M. E. de- 
 rived his title from J. H., the original 
 lessee of J. E. H., through mesne assign- 
 ments and subleases. To a bill filed by 
 G. M. E. to obtain a decree requiring C. 
 F. M., who held the legal title under L. 
 S.'s will, and the cestuis qui trust under 
 that will to convey to G. M. E. the naked 
 fee held by them in the twenty-two feet, 
 or to execute to him a new lease thereof 
 for ninety-nine years, renewable forever, 
 subject to amere nominal rent.thedefend- 
 ants demurred ; the demurrer was sustained 
 and, on G. M. E.'s appeal, it was held that 
 the rent reserved under the lease from 
 J. E. H. to J. H. (the reversion of which 
 L. S. acquired in 1832) was a rent ser- 
 vice, and not a rent charge, and that 
 it was apportionable ; so that by the 
 surrender of the 122 feet from E. L. to 
 L. S. , the original rent reserved in the 
 lease of 1782 was not extinguished, but 
 was apportionable to the residue of the 
 forty-six feet, whereof the reversion was 
 owned by L. S. and by those claiming 
 under her will, and that this proportionate 
 part remained fastened upon the forty-six 
 feet. That even if it were admitted that 
 no part of the original rent had ever, in 
 the memory of any one now living, been 
 paid by any owner of the leasehold in- 
 terest in the lot of twenty-two feet, and 
 that that lot had always been treated as 
 discharged and relieved from the payment 
 of any portion of the original rent, nev- 
 ertheless, the law upon these facts alone 
 would raise no presumption of some act 
 of the parties in interest relieving the lot 
 of twenty -two feet from payment of any 
 part of the original rent, or its extin- 
 guishment quoad that lot, and it being 
 conceded that the relation of landlord 
 and tenant once existed between the par- 
 ties, under the lease of 1782, after the 
 conveyances of 1832. Ehrman v. Mayer, 
 57 Md. 612. 
 
 A purchased a house of B, who claimed 
 no title in the land and thenceforth occu- 
 pied the premises without any payment 
 or claim of rent. Held, that A did not 
 take possession as B's tenant. Furlong 
 V. Garrett, 44 Wis. iii. 
 
 The continuance of possession by hold- 
 ing over after the termination of the lease 
 is not adverse. Learned v, Tallmadge, 
 
 339 
 
Hostile. 
 
 ADVERSE POSSESSION. Landlord and Tenant. 
 
 possession to the landlord, or do something equivalent to that, 
 and bring home to him knowledge of the adverse claim. ^ 
 
 26 Barb. (N. Y.) 444. Day v. Cochran, 
 24 Miss. 261. 
 
 In an action of ejectment, it appeared 
 that the premises in question were, in 
 1824, in tile possession of a tenant who 
 held under a lease from W. , dated in 
 
 1823, and running for twenty years. In 
 order to get possession, R. T. , who had 
 or claimed a title under a deed from B.. 
 employed I. to purchase the lease, which 
 he did with the money of R. T., taking 
 an assignment, however, in his own 
 name. By collusion with I., and without 
 the knowledge of the landlord, R. T. 
 entered into possession, asserting title 
 under the deed from B. The lease, how- 
 ever, was found in his possession, and 
 he made several efforts to buy the W. 
 title. Plaintiff claimed under deeds from 
 the heirs of W. to C, executed in 1858 
 and 1859. The premises were then in 
 the possession of grantees of G. F. T., 
 who entered under a deed in 1846. It 
 was admitted by defendants that R. T. 
 "and the grantees under him have been 
 in possession . . . and that defendant is' 
 now in possession under that (R. T.'s) 
 claim of title." The trial court refused 
 to submit to the jury the question as to 
 the character of R. T.'s entry into pos- 
 session, and nonsuited plaintiff. Held 
 error; that if R. T.. when he entered in 
 
 1824, became the tenant of W., his pos- 
 session and that of his grantees remained 
 the possession of his landlord not only 
 until the .end of the term, but presumably 
 for twenty years thereafter, i.e., until 
 1863, and so there was no adverse pos- 
 session at the time of the conveyance to 
 C, making his deed void for champerty; 
 and that, therefore, the question as to 
 the character of R. T.'s possession should 
 have been submitted to the jury. Whit- 
 ing V. Edmunds, 94 N. Y. 309. 
 
 Tenant cannot interrupt Continuous 
 Possession. — An admission of title, or 
 payment of rent by a tenant, without 
 knowledge of his landlord, will not break 
 the continuity of the adverse possession. 
 Haynes v. Boardman, iig Mass. 414. 
 Compare Thompson v. Pioche, 44 Cal. 
 50S. 
 
 SiA-tenant. — A sub-tenant cannot hold 
 adversely to the landlord in any manner 
 different from the tenant. Campbell v. 
 Shipley, 41 Md. 81; Tompkins «/.■ Snow, 
 63 Barb. (N. Y.) 525. 
 
 Assessment Lease. — An adverse posses- 
 sion will originate to a sub-tenant under 
 an assessment lease, as the general prin- 
 ciples as regards landlord and tenant do 
 
 not apply. Sands v. Hughes, 53 N. Y. 
 287. 
 
 A tenant may acquire title by purchase 
 at an assessment sale. Hilton v. Bender, 
 4Thomp. & C. (N. Y.) 270. 
 
 Tenant by Sufferance. — Where one Is In 
 possession of land as a tenant by suffer- 
 ance, his possession will not be adverse 
 to the landlord. Creigh v. Henson, la 
 Graft. (Va.) 231. 
 
 Notice to quit will render the posses- 
 sion of a tenant-at-will adverse. Austia 
 V. Wilson, 46 Iowa, 362. 
 
 1. Whiting V. Edmunds, 94 N. Y. 309;, 
 Jackson v. Stiles, i Cow. (N. Y.) 575; 
 Thayer v. Society of U. B., 20 Pa. St. 62; 
 Boyer v. Smith, 3 Watts (Pa.), 449; 
 Towne v. Butterfield, 97 Mass. 105; Reed 
 V. Shepley, 6 Vt. 602; Holley v. Hawley, 
 39 Vt. 534; Moshler v. Reding. 12 Me. 
 478; Avery v. Baum, Wright (Ohio), 576; 
 Tilghman z;.' Little, 13 111. 241; Wild v- 
 Serpen, 10 Gratt. (Va.) 400; Lunsford 7'. 
 Turner. 5 J. J. Marsh (Ky.), 104; Estes v 
 Long. 71 Mo. 605. 
 
 A tenant may deny the title of his land 
 lord after the expiration of his lease 
 Catlino v. Decker, 38 Conn. 362. 
 
 It must be made plain that the rer- 
 owner has been given a cause of action, 
 and if the possession commenced in sut 
 ordination to his right, there should b'' 
 evidence of distinct renunciation of iV 
 before he Is put In position to lose any- 
 thing by not bringing suit. If one goes 
 into possession under him, he is entitled 
 to assume that his rights are continuously 
 admitted until the contrary Is brought to 
 his knowledge. WiUison v. Walklns, 3 
 Pet. (U. S.) 43; Farrow v. Edmundson,4 
 B. Mon. (Ky.) 606; Sherman v. Trans- 
 portation Co.. 31 Vt. 162; Campeau v. 
 Laffepty, 50 Mich. 114. - 
 
 Although a party may enter Into pos- 
 session in privity with the true owner, he 
 may, without first surrendering the prem 
 ises, dissever such relation, and claim by 
 adverse title. Creekmur v. Creekmur,' 
 75 Va. 430. 
 
 The hostile claim operates a forfeiture 
 of the lease, at the election of the land- 
 lord. 
 
 Knowledge of such adverse holdings 
 must be brought home to the landlord, or 
 notice of collateral facts from which such 
 knowledge will be inferred. Wells v. 
 Sheerer. 78 Ala. 142. 
 
 The purchase of a tax title to the land 
 by the tenant renders his possession ad- 
 verse to the landlord. Weichselbaum v. 
 Curlett, 20 Kan. 709. 
 
 240 
 
'Hostile. 
 
 ADVERSE POSSESSION. 
 
 Trnste. 
 
 12. Trusts. — Where the trust is express, the possession of the 
 trustee is that of the cestui que trust, and adverse possession can- 
 mot exist until the trustee has done some open and unequivocal 
 act denying the right of the cestui que trust.^ 
 
 1. Norris's App., 71 Pa. St. 106; Janes 
 V. Throckmorton, 57 Cal. 368; Catlino 
 V. Decker, 38 Conn. 362; Whiteside v. 
 Jackson, i Wend. (N. Y.)4i8; Decouche 
 V. Savetier. 3 Johns. Ch. (N. Y.) 190; s. 
 c, 8 Am. Dec. 478; Kane i/.Bloodgood, 7 
 Johns., Ch. (N. Y.) 125; s. c, 11 Am. 
 Dec. 417; Weaver v. Leiman. 52 Md. 
 708; Gordon v. Small, 53 Md. 550; But- 
 ler v: Lawson, 72 Mo. 227; Carter v. Fe- 
 land, 17 Mo. 383; Goodwin v. Goodwin, 
 •69 Mo. 617; McCarthy v. McCarthy, 74 
 Ala. 546; Williams v. First PreS. Soc, i 
 Ohio St. 478; Miller v. Bingham, i Ired. 
 Eq. (N. Car.) 423; s. c, 36 Am. Dec. 58; 
 Edwards v. University, i D. & B. Eq. (N. 
 ■Car.) 325; s. c, 30 Am. Dec. 170; Thomp- 
 son V. Thompson, i Jones (N. Car.), 434; 
 Taylor v. Dawson, 3 Jones Eq. (N. Car.) 
 86; Hamilton v. Taylor, i Litt. Sel. Cas. 
 (Ky.) 444; Shelby v. Shelby, Cooke 
 (Tenn.), 179; s. c, 5 Am. Dec. 686; Marr 
 V. Gilliam, i Coldw. (Tenn.) 489; Mc- 
 Cammon v. Pettit; 3 Sneed (Tenn.), 242; 
 Milner w. Hyland, 77 Ind. 458; Lewis z/. 
 Hawkins, 23 Wall. (U. S.) 119; Seymour 
 V. Treer, 8 Wall. (U. S.) 202; Prevost v. 
 ■Gratz, 6 Wheat. (U. S.) 481. 
 
 As between trustee and cestui que trust, 
 in the case of an express trust, the stat- 
 ute of limitations does not begin to run 
 until the trustee repudiates the trust by 
 clear and unequivocal acts or words, and 
 claims thenceforth to hold the estate as 
 his own, not subject to any trust, and 
 such repudiation and claim are brought 
 to the knowledge of the cestui que trust. 
 Perry on Trusts, g§ 863, 864; Janes v. 
 Throckmorton, 57 Cal. 368; Hearst i'. 
 Pujol, 44 Cal. 235; Oliver v. Piatt, 3 
 How. (17. S.)333; Elmendorf?/. Taylor, 
 10 Wheat. (U. S.) 152; Hill v. Bailey, 8 
 Mo. App. 85; s. c, 76 Mo. 454; Demarest 
 V. Wynkoop, 3 Johns. Ch. (N. Y.) I2g; 
 Chick V. Rollins, 44 Me. 104; Roberts k. 
 Littlefield, 48 Me. 61. 
 
 An express trust, as distinguished 
 from a trust implied by law, is created- 
 by the direct and positive act of a party, 
 manifested by some instrument of writ- 
 ing; and when the legal title to property 
 is conveyed to one person, to be held by 
 him for the benefit of another, an express 
 trust- is created, without regard to the 
 particular words or form of the convey- 
 ance. I Perry on Trusts, § 82; McCarthy 
 V. McCarthy, 74 Ala: 546; Cresswell v. 
 Jones, 68 Ala. 420. 
 
 Where a trustee purchases property 
 with trust funds, though in his own 
 name, his possession will be deemed the 
 possession of the beneficiaries until he 
 does some unequivocal act denying their 
 right. Butler v. Lawson, 72 Mo. 227. 
 
 Where a wife furnishes money to her 
 husband with which to purchase land for 
 her, and he makes the purchase, but 
 takes the title in his own name without 
 the knowledge or consent of his wife, he 
 becomes a trustee for her, and the statute 
 of limitations does not commence to run 
 against her until her husband disavows 
 his trust. Milner v. Hyland, 77 Ind. 458. 
 
 R. conveyed land to the defendant, 
 who, at the same time, covenanted in 
 writing that he would sell enough of 
 the land to pay off the incumbrances 
 thereon, and account with S. and M. — 
 children of R. — for one fifth of the 
 moneys remaming on hand from sales 
 of the land, after paying the incum- 
 brances; and also that he would sell all 
 the lands within three years, or at his op- 
 tion convey to S. and M. one fifth of 911 
 the lands remaining on hand after pay- 
 ing the said debts and expenses. After- 
 wards, a mortgage upon a portion of the 
 land having been foreclosed, and the 
 land sold and conveyed by the sheriff, 
 the defendant obtained a conveyance 
 from the purchaser. The interests and 
 rights of S. and M. under the covenant 
 having afterwards become vested, by 
 proper mesne conveyances, in J., were 
 after his death sold by his administrator, 
 under an order of the probate court, as 
 personal property. Held, in an action 
 by the heirs of J., that the defendant 
 took the land in trust for S. and M. to 
 the extent of the rights reserved to them in 
 the covenant ; and to that extent they had 
 an equitable interest in the land; that the 
 deed and covenant did not work an equi- 
 table conversion of the land into personal 
 property; and that the sale of this inter- 
 est by the administrator as personal prop- 
 erty was therefore void; that the title 
 obtained by the defendant from the pur- 
 chaser at the foreclosure sale inured to 
 the benefit of his cestuis que trust to the 
 extent of their rights under the covenant; 
 that the action was properly brought by 
 the heirs of J. ; and that, in view of the 
 fact that the record failed to show any 
 notice of the cestuis que trust of an ad- 
 verse holding, by the trustee, the defence 
 
 341 
 
Hostile. 
 
 AD VERSE POSSESSION. 
 
 Trusts. 
 
 But this principle does not apply to cases of constructive trusts, 
 where, by the" wrongful act of one party, the other may charge him 
 in equity as his trustee. The rule in respect to this class of trusts 
 is, that if one, knowing he could avail himself of the benefit of such 
 trust, lies by for the statutory period, his claim will thereby be 
 barred. But the statute will not run against one innocently igno- 
 rant of his rights, nor against one incompetent to enforce them,* 
 
 of the statute of limitations could not be 
 maintained. Janes v. Throckmorton, 57 
 Cal. 368. 
 
 A deed to a tract of land granted in 
 1765 to the town of N. declared that the 
 premises were conveyed to the inhabi- 
 tants of said town " for a parsonage and 
 the use and support of ministers of 
 the gospel." Since 1800 the town had 
 used the premises otherwise, and applied 
 the income and profits therefrom to- mu- 
 nicipal purposes. Held, that there had 
 been such a distinct repudiation and dis- 
 avowal of the trust, and such an adverse 
 holding of the premises, without applica- 
 tion to have trust executed as to malce a 
 complete legal and equitable title in the 
 town. Congregational Soc. v. Pewing- 
 ton, 53 N. H. 595. 
 
 At the trial of a writ of entry, dated in 
 1883, it appeared that the demanded 
 premises were conveyed by A., in 1829, 
 to the ancestor of the demandant; that in 
 1837 A. conveyed the same premises to 
 the inhabitants of a school district, 
 "their successors and assigns forever," 
 by a deed which contained, after a de- 
 scription of the premises, the words, 
 " said lot of land to be used, occupied, 
 and improved by said inhabitants as a 
 shool-house lot, and for no other pur- 
 pose;" that from 1837 to 1882 the school 
 district had the exclusive use of the 
 premises for school purposes, and had 
 taken exclusive care of it; and that in 
 1882 the school district conveyed the 
 premises to the tenant, the school-house 
 was removed, and the premises ceased to 
 be used for school purposes. Held, that 
 the demandant's ancestor was disseised 
 in 1837; that the deed to the school dis- 
 trict was in form a deed in fee; and that 
 the statute of limitations was a bar to the 
 action. Barker v. Barrows, 138 Mass. 
 578; s. c, 9 Am. & Eng. Corp. Cas. 208. 
 
 An administrator of an estate, having 
 no powe^ or control over the land of his 
 intestate, and not being required to pay 
 the taxes thereon, may rightfully become 
 the purchaser of the same, as against the 
 heirs, at a sale for the taxes thereon, and 
 set up his deed as color of title. Stark v. 
 Brown, loi 111. 395. 
 
 A trustee cannot retain possession of 
 
 lands held by him in trust after repu- 
 diating his trust, and claim adversely, 
 until his claim ripens into a title under 
 the statute of limitations. Schlessinger 
 V. Mallard. 11 Pac. Re'p. (Cal.) 728. 
 
 Secret Trust. — Where a party in 1868 
 took a conveyance of land in his own 
 name for the purpose of defeating a 
 creditor of the grantor, and with a secret 
 trust for the use of the grantor, and af- 
 terwards died intestate, action to vacate 
 this deed instituted in 1882, by a subse- 
 quent creditor, who had obtained his 
 judgment in 1880, and who alleged and 
 proved his ignorance of the fraud until 
 within six years preceding the commence- 
 ment of this action, was not barred by 
 the statute of limitations. And the de- 
 fendants having gone into possession, 
 claiming the land as heirs of their an- 
 cestor, they were bound by the secret 
 trust attached to their ancestor's deed, 
 and could not now assert a claim to have 
 held by adverse possession. McSween v. 
 McCown, 23 S. Car. 342. 
 
 Where a debtor executed a deed to 
 lands for the purpose of placing the title 
 beyond the reach of his creditors, and of 
 creating a secret trust for his own bene- 
 fit, he^continuing in fact the real owner, 
 and enjoying the use, products, and 
 profits of the estate, and the grantee 
 never having been in possession of, and 
 never having exercised or claimed any 
 dominion or ownership over, the lands 
 conveyed, the grantee is not, under such 
 deed, clothed with any ownership or 
 asserted right which will uphold a claim 
 of adverse possession against a creditor 
 of the grantor seeking to subject the 
 lands conveyed by the deed to the pay- 
 ment of his debt. Jones v. Wilson, 69 
 Ala. 400. See Elwell v. Hinckley, 138 
 Mass, 225. Compare Estes v. Long, 71 
 Mo. 605. 
 
 1. 2 Washb. Real Prop. (4th Ed.) 493; 
 Kane v. Bloodgood, 7 Johns. Ch. (N. Y.) 
 120; s. c, II Am. Dec. 417; Phalen v. 
 Clark, ig Conn. 421; Weaver v. Leiman, 
 52 Md. 708; Kennedy v. Kennedy, 25 
 Kan. 151 ; Peters v. Jones, 35 Ipwa, 
 512; Murdock v. Hughes, 7 S. & M. 
 (Miss.) 219; Clark z/. Snodgrass, 66 Ala. 
 233; Starke v. Starke, 3 Rich. (S. Car.) 
 
 242 
 
Hostile. 
 
 ADVERSE POSSESSION. 
 
 Trusts. 
 
 like an infant ; and the same principle applies in the case of result- 
 ing trusts.^ 
 
 The rule that the statute of limitations does not bar a trust es- 
 tate holds only between cestui que trust and the trustee, not as 
 between cestui que trust and the trustee on the one side, and 
 strangers on the other. Therefore, where the cestui que trust and 
 
 438; Boone v. Chiles, 10 Pet. (U. S.) 
 177, 223; Willison V. Watkins, 3 Pet. 
 (U. S.) 43; Sherwood v. Sutton, 5 Mason 
 (U. S.), I. 
 
 In case of a constructive trust, the 
 statute will commence to run from the 
 period at which the cestui que trust could 
 have indicated his right by action or 
 otherwise. 
 
 But the trustee must bring himself 
 clearly within the position of a continued 
 and consistent adverse claimant, and the 
 cestui que trust must have no reasonable 
 excuse for failing to prosecute his claim 
 within the proper time. McKin v. Wil- 
 liams, 48 Tex. 89; Grumbles v. Grumbles, 
 17 Tex. 472; Hunter v. Hubbard, 26 
 Tex. 537; Anderson v. Stewart, 15 Tex. 
 285; Carlisle v. Hart, 27 Tex. 350; Cole 
 V. Noble, 63 Tex. 432. 
 
 Where a party conveys land as a se- 
 curity for a loan, and after his death his 
 widow pays the debt and takes a deed 
 for the land to herself, she will hold the 
 title as a trustee for the heirs of her hus- 
 band. The owner of land conveyed the 
 same to secure a loan of money, and 
 after his death his widow paid the debt 
 and took a conveyance to herself; and in-, 
 ventoried the land as that of her hus- 
 band, and she and the only heir occupied 
 the same as a homestead, she having a 
 dower and homestead right in the 
 premises. It was held that the widow's 
 possession was not adverse as against 
 the heir, and that laches is not imputable 
 in such a case. Hunter v. Dennis, 112 
 111. 568. 
 
 Two persons purchased a tract of 
 land, each to have a certain portion 
 thereof, and one of them took a deed 
 for all, giving back a mortgage to the 
 vendor to secure the price, which mort- 
 gage was afterward discharged by the 
 money of both the purchasers, so that a 
 resulting trust was created against the 
 one taking the deed. The other took 
 possession of his part, and made lasting 
 and valuable improvements on the same, 
 and continued in the undisputed posses- 
 sion for more th^n twenty years, during 
 which time he paid his share of the 
 taxes, and for some years leased his 
 part to his co-purchaser, in whose name 
 the title rested, who paid rent. It was 
 
 held, on bill filed by the one so occupy- 
 ing his land to compel the other to con- 
 vey to him, that the statute of limitations 
 was no bar to the equitable relief sought. 
 McNamara et al. v. Garrity, lo6 111. 384. 
 
 There was a sale of land by bond for 
 title in 1853. In 1855 the vendee sold 
 and conveyed to a stranger, who entered 
 and held possession until his death, in 
 1866. and after his death his widow and 
 children continued to occupy the 
 premises. la 1871, a bill was filed to 
 enforce the vendor's lien for the purchase 
 money due upon the sale in 1853. The 
 defence was seven years' possession un- 
 der the statute. The court held that the 
 vendee, or a purchaser from him, stood 
 in the relation of a trustee to the vendor 
 for the unpaid purchase money, against 
 whom the statute does not run. Lewis 
 u. Hawkins, 23 Wall. (U. S.) 119; Swart- 
 wout V. Burr, i Barb. (N. Y.) 499; 
 Champion v. Brown, 6 Johns. Ch. (N..Y.) 
 402. See Executory Contract, ante, 
 p. 229. 
 
 In an action to enforce a trust, it ap- 
 peared from the findings of fact, support- 
 ed by sufficient evidence, that the defend 
 ant from 1866 to 1869, inclusive, took con- 
 veyances of real estate in his own name, 
 without the consent of the parties whose 
 money paid the consideration. As the 
 action was not commenced till 1876, and 
 no exceptions shown to take the case out 
 of the statute, the court correctly found, 
 as a conclusion of law, that the plaintiff's 
 cause of action was barred by the statute 
 of limitations. Main v. Payne, 17 Kan. 
 608; Kennedy v. Kennedy, 25 Kan. 151. 
 
 1. Strimpfler v. Roberts, 18 Pa. St. 
 283; s. c, 57 Am. Dec. 606; Cummings 
 V. Stovall, 6 Lea (Tenn), 679; Brawner 
 V. Staup, 21 Md. 337. 
 
 Where children had a resulting trust 
 in land bought by their father with their 
 mothers' money, held, that the statute did 
 not begin to run until their father's death. 
 Groves v. Groves, 57 Miss. 658. 
 
 The widow of a decedent entered mto 
 a contract in writing with the heirs, by 
 which, in consideration of the surrender 
 by her of her year's support, exempt 
 property and dower, the neirs agreed to 
 convey to her one third in value of the 
 lands of the estate, and a specific allot- 
 
 243 
 
Sostile. 
 
 ADVERSE POSSESSION. 
 
 Trusts — Agent, 
 
 his trustee are both out of possession for the time limited, the 
 party in possession has a good bar against them both.^ 
 
 Adverse Holding by Purchaser from Trustee. — A purchaser of 
 lands at a sale made by a trustee under a deed of trust, taking 
 possession of his purchase, becomes an adverse holder as, against 
 persons who claim an equity in the lands under a prior verbal con- 
 tract with the grantor who' executed the deed of trust, although 
 the purchaser had notice thereof.* 
 
 13. Agent. — When a person enters into the possession of land as 
 the agent of another, his possession, or that of others claiming 
 under him, cannot become adverse to his principal, until there has 
 been an open disclaimer of the title under which he entered, and 
 the assertion of a hostile title, brought home to his principal, or 
 to those claiming under him.^ 
 
 ment of land was afterwards made to her 
 by parol, of which she took possession, 
 and then married, had a child, and died; 
 the heirs In the mean time, pending the 
 ■coverture, conveyed the land to the hus- 
 band, who held under the deed, and, 
 after the death of the wife, sold and con- 
 veyed the land to a third person for 
 ■value, who continued in possession for 
 over ten years, when the heirs of the wife 
 filed this bill for a specific execution of 
 the original contract and for a recovery of 
 the land. Held, that the right of action 
 was barred by the statute of limitations. 
 Cummings v. Stovall, 6 Lea(Tenn.), 679. 
 
 1, Herndon v. Pratt, 6 Jones Eq. (N. 
 ■Car.) 327; Fleming v. Gilmer, 35 Ala. 
 62; Bryan v. Weems, 29 Ala. 423; Ma- 
 son V. Mason, 33 Ga; 345; Worthy v. 
 Johnson, 10 Ga. 358; Smilie w. Biffle, 2 
 Pa. St. 52; Crook v. Glenn, 30 Md. 55; 
 Long V. Cason, 4 Rich. (S. Car.)6o; Pled- 
 ger V. Easterling, 4 Rich. (S. Car.) loi; 
 Henson v. Kinard, 3 Strob. Eq. (S. Car.) 
 371; Watkins v. Specht, 7 Coldw. (Tenn.) 
 585; Williams ». Otey, 8 Humph. (Tenn.) 
 563; s. c, 47 Am. Dec. 632; Coleman v. 
 Walker, 3 Mete. (Ky.)65; s. c, 77 Am. 
 Dec. 164; Wooldridge v. Planters' Bank, 
 I Sneed (Tenn.), 297; Meeks ». Vassault, 
 3 Sawy. (U.S.) 206; Elmendorf v. Taylor, 
 10 Wheat. (U. S.) 152. 
 
 In 1852 L. conveyed certain leasehold 
 property to S., and in 1854 applied for 
 the benefit of the insolvent laws, return- 
 ing in his schedule no property. S. was 
 appointed his trustee, and he obtained 
 his final discharge in due course in 
 1854. After this, in 1857, S. re-con- 
 vfeyed the property to L. by a deed which 
 was withheld from record until June, 
 i860. In March, i860, before this deed 
 was recorded, S. sold and conveyed the 
 property- to W., who thereupon entei'ed 
 into possession, and, as is alleged, re- 
 
 ceived the rents and profits thereof, until 
 1868. In i86i, more than a year after 
 the conveyance to W. , L. , for the con- 
 sideration of one dime, conveyed all his 
 estate in the property to his son, the 
 present complainant, who was then an 
 infant, under the age of twenty-one years. 
 Held, where there is a trustee compe- 
 tent to sue and protect the trust estate, 
 limitations run in favor of a stranger to 
 the trust, notwithstanding the cestui que 
 trust TDa.y be an infant. A party intruding 
 upon an infant's estate becomes construc- 
 tively his guardian or trustee, but against 
 such a trust limitations run; and to avoid 
 the bar, the bill for account must be filed 
 within three years after the infant ar- 
 rives at age. Weaver v. Leiman, 52 
 Md. 708. See Wooldridge v. Planters' 
 Bank, r Sneed (Tenn.),-297; Williams v. 
 Otey, 8 Humph. (Tenn.) 563; s. c.,,47 
 Am. Dec. 632; Goss v. Singleton, 2 
 Head (Tenn.), 67; Parker v. Hall, 2 Head 
 (Tenn.), 641; Pendergast v. Foley, 8 Ga. 
 i; Worthy v. Johnson, 10 Ga. 358; Long 
 V. Cason. 4 Rich. Eq. (S. Car.) 60; Molton 
 V. Henderson, 2 Ala. 426. 
 
 If a trustee estops himself from suing 
 by a sale of the property, thus uniting 
 with the purchaser in a breach of trust, 
 the wrong is to the beneficiaries, not to 
 him. He cannot sue; and the beneficia- 
 ries, if under disability, are not affect- 
 ed by the statute. Parker v. Hall, 2 
 Head (Tenn.), 641. 
 
 2. Clark V. Snodgrass, 66 Ala. 233. 
 
 3. Baucum v. George, 65 Ala. 259; 
 Fountain Coal Co. v, Phelps, 95 Ind. 
 271; Whiting V. Taylor, 8 Dana (Ky.), 
 403. 
 
 The acts of an agent constituting a 
 disseisin will work to the benefit of his 
 principal. Atkinson v. Patterson, 46 Vt. 
 750. 
 
 A, entitled as tenant in tail to an estate. 
 
 244 
 
Hostile. 
 
 ADVERSE POSSESSION. Mortgagor and Mortgagee. 
 
 14. Mortgagor and Mortgagee. — Possession of the mortgagor, or 
 his privies, including his grantees with notice, will not be adverse, 
 nor bar an action by the mortgagee for foreclosure, or for possession 
 of the land, unless there has been an open and explicit disavowal 
 and disclaimer of holding under the mortgagee's title, and asser- 
 tion of title in the holder brought home to the mortgagee. The 
 mere taking possession by the vendee of the mortgagor, and con- 
 tinued occupancy by him and his vendees for the period of the 
 statutory bar ; tlieir open control and improvement of the land, 
 and payment of taxes thereon as their own absolute property, with 
 the intqntion of holding it against all comers, will not bar the 
 action.^ 
 
 held the same as an agent for B for 
 twenty years. Held, that B had acquired 
 title by adverse possession. Williams v. 
 Pott, L. R. 12 Eq. 149. 
 
 A deed signed by one a.s " agent " will 
 not constitute color of title. Simmons 
 V. Lane, 25 Ga. 178. 
 
 Fra.iid, — A, acting as assumed agent 
 ■for B, made a deed in his own name, 
 with no mention of the principal. Held, 
 that the deed was not color of title. 
 Payne v. Blackshear, 52 Ga. 637. 
 
 Attorney and Client. — Where an attor- 
 ney makes a purchase of land through an 
 agent, from his client, which land is the 
 subject-matter of the attorneyship, and 
 at the time of the conveyance the attor- 
 ney does not use his influence over his 
 client to his prejudice, and the agent 
 acts bona fide, and the client is paid a full 
 and fair price for the land, and upon the 
 execution of the conveyance delivers 
 possession thereof to the grantee, who 
 thereupon transfers the deed and 
 premises to the attorney, and 'thereafter 
 the attorney compromises and settles an 
 ■outstanding title to the land, and in the 
 written compromise signs his own name 
 and the name of his former client there- 
 to, under a power of attorney which he 
 had received from his client prior to his 
 own purchase of the premises, and at 
 :said time informs the holder of the out- 
 standing title that his client has parted 
 with all of his title, and that he, the 
 attorney, is the owner thereof, and 
 thereafter the land is in the possession 
 ■of the attorney, his tenants and grantees 
 for more than fifteen years, during 
 which time the atto^rney, his tenants, 
 grantees, and heirs have paid the taxes 
 thereon, and made lasting and valuable 
 iniprovements costing many thousands 
 of dollars,' and the client during all the 
 fifteen years makes iio claim to the 
 premises, or to 4ny part of the proceeds 
 atisfhgf therefrom, and charges no fraud 
 •or trust upon his attorney, and thereafter 
 
 id. oif L.— 17 
 
 sells and conveys all his right and inter- 
 est to the premises to a subsequent 
 grantee, and the court below finds sub- 
 stantially that the attorney was acting 
 for himself in obtaining the conveyance, 
 and in making the compromise of the 
 outstanding title, and during all the time 
 subsequent thereto was claiming owner- 
 ship to the land in his own interest, and 
 as adverse to the original owner, and 
 not as his trustee, held, that these facts 
 are sufficient to sustain the findings; and 
 the statute of limitations fully protects 
 the defendants who have been in posses- 
 sion of the premises by themselves or 
 through their grantors for more than fif- 
 teen years prior to the commencement 
 of the suit to recover the same. Yea- 
 mans V. James, 27 Kan. 195. 
 
 1. Ringo il. Woodruff. 43 Ark. 469; 
 Lewis V. Hawkins, 23 Wall (U. S.) 119; 
 Butler V. Douglass, i McCrary (U. S.), 
 630; Higginson v. Mein, 4 Cranch (U. 
 S.), 414; Hughes V. Edwards, 9 Wheat. 
 (U. S,)490; Whittington v. Flint, 43 Ark. 
 504; s. c, 51 Am. Rep. 572; Elsberry v. 
 Boykin, 65 Ala. 336; Hodgdon v. Heid- 
 man, 66 Iowa, 645; Crawford v. Taylor, 
 42 Iowa, 260; Green v. Turner, 38 Iowa, 
 112; Gower v. Winchester, 33 Iowa, 302; 
 Jamison v. Perry, 38 Iowa. 14; Maxwell 
 V. Hartman, 50 Wis. 660; Crook v. 
 Glenn, 30 Md. 55; Koons v. Steele, 19 
 Pa. St. 203; Parker z/. Banks, 79 N. Car. 
 480; Jones V. Williams, 5 A. & E. 291; 
 Palmer v. Eyre, 17 A. & E. N. S. 366; 
 Pugh V. Heath. L. R. 7 App. Cas. 2351 
 s. c, 35 Eng. Rep. (Moaks' Ed.) 172. 
 
 Mortgage. — A mortgage of land in tht 
 actual adverse possession of one claiming 
 to hold adversely to the mortgagor, is 
 void as to the claimant: thus, in an 
 action of ejectment between a mortgagee 
 and such claimant, the court instructed 
 the jury that if the defendant's posses- 
 sion was "actual, visible, open, notori- 
 ous, and hostile, under a claim of owner- 
 ship," the mortgage was void as to him. 
 
 245 
 
Hostile. 
 
 ADVERSE POSSESSION. Mortgagor and Mortgagee. 
 
 Where the mortgagee obtains possession of the premises, after 
 condition broken, and no payment has been made on account of 
 
 possession is, that the possession is in 
 accordance with, and in subordination to, 
 the title of such purchaser, and is under 
 him with his acquiescence, unless the 
 contrary appear, or until an intention to 
 claim the premises adversely is made 
 manifest. Avery v. Judd, 21 Wis. 262; 
 Seeley v. Manning, 37 Wis. 574; Maxwell 
 V. Hartmann, 50 Wis. 660; Cook v. 
 Travis, 20 N. Y. 400; Lowry v. Tiileny, 
 31 Minn. 500. 
 
 Where there has been a foreclosure^ 
 and a deed acquired by the ,mortgagee, 
 though the proceedings were void, yet 
 the deed will give color of title. Mason 
 V, Ayers, 73 111. 121. 
 
 Twenty years' possession under a 
 mortgage is presumptive evidence of 
 foreclosure. Randall v. Bradley, 65 Me. 
 
 43- 
 
 Possession by the mortgagee after 
 foreclosure, but no order of sale issued 
 pursuant to an arrangement with the 
 mortgagor by which the mortgagee was 
 to apply the rents to ^a satisfaction of the 
 mortgage, is not adverse. Frink ii, Le 
 Roy, 49 Cal. 317. See Knowlton v. 
 Walker, 13 Wis. 264. 
 
 In 1866 L. mortgaged a tract of land 
 to R. In August, 1869, R., without 
 having foreclosed his mortgage, con- 
 veyed the land to L.'s wife. L. died in 
 1874, and in May, 1879, Mrs. L. borrow- 
 ed money from T., and, to secure there- 
 payment thereof, gave a deed of trust 
 upon this land. In the " fall of 1879" 
 she died. ^ Default was made in the pay- 
 ment .of the debt and the land was sold 
 under the deed of trust and bought by T. 
 In February, 1880, T. brought an action 
 of ejectment against the children of Mrs. 
 L., to recover the land, they having re- 
 ceived possession from their mother, who 
 had been in possession of the same 
 jointly with her husband up to the time 
 of his death, and had sole possession 
 thereof afterwards during her lifetime. 
 The defendants resisted the suit on the 
 ground that Mrs. L., being only the 
 assignee of R.'s mortgage, T. could not 
 acquire the legal title through her. Held, 
 that as Mrs. L. was in possession of the 
 land more than ten years between the 
 execution of R.'s deed and her death, she 
 acquired a title by limitation, as a mort- 
 gagee in possession after condition 
 broken. The joint possession of herself 
 and husband, after the execution of R 's 
 deed and before L.'s death, must be re- 
 ferred to her, who had the paper ,litle, 
 rather than to him who had, in form at 
 
 Held, correct. Canfield v. Hard, 58 Vt. 
 217. 
 
 When it Becomes Adverse. — To convert 
 the possession into an adverse holding, 
 there must be a renunciation 6r dis- 
 claimer of the mortgagee's right, and 
 such renunciation or disclaimer must be 
 traced to his knowledge. State v. Con- 
 ner, 69 Ala. 212. See Jamison v. Percy, 
 .38 Iowa, 14; Haskell v. Bailey, 22 Conn. 
 
 573- 
 
 Twenty years' possession of the 
 premises by a mortgagee under his mort- 
 gage, pursuant to the statute, bars the 
 mortgagor's equity of redemption, and 
 the extinguishment of the mortgagor's 
 equity effected by this statute, unlike the 
 extinguishment effected by mere judicial 
 action, is not subject to be waived by an 
 incautious admission of the mortgagee. 
 Chapin v. Wright, 5 Atl. Repr. (N. J.) 
 
 574. 
 
 To constitute adverse possession 
 against a mortgagee it is not sufficient 
 that the mortgagor or those holding un- 
 der him, occupy, use, improve, and pay 
 taxes on the premises, as their own ab- 
 solute property, but the possession must 
 be in open denial of the mortgagee's 
 title, and accompanied with such acts or 
 declarations of the holders as are suffi- 
 cient to put the mortagee on notice that 
 they claim and hold in hostility to his 
 rights, and adversely to him. Until 
 then the possession is consistent with 
 his rights and not adverse, and the 
 statute does not begin to run. Ringo v. 
 Woodruff, 43 Ark. 469. 
 
 A condition broken will render the 
 possession adverse. Green v. Mizule, 
 54 Miss. 220. 
 
 After Foreclosure Sale. — Where a mort- 
 gagor or his grantee remains in posses- 
 sion after the title to an, undivided inter- 
 est therein has passed by a foreclosure 
 sale to a purchaser thereof, his possession 
 is presumed amicable and in subordina- 
 tion to the title of the purchaser until the 
 contrary appears. The parties so jointly 
 owning the land become tenants in com- 
 mon, the possession of one being deemed 
 the possession of both; and the statute 
 of limitations does not begin to run 
 against such purchaser until an ouster or 
 the assertion of some hostile claim by 
 the tenant in possession, denoting an in- 
 tention to hold adversely to his cotenant. 
 Lowry v. Tiileny, 31 Minn. 500. 
 
 The relation which a purchaser, upon 
 a. valid foreclosure sale, sustains to a 
 mortgagor Or his grantee remaining Jn 
 
 346 
 
Hostile, 
 
 ADVERSE POSSESSION. 
 
 Vendor and Vendee, 
 
 principal or interest, he will acquire a title by adverse posses- 
 sion.^ 
 
 15. Pendente Lite Purchaser.— The statute of limitations does 
 not run in favor of a pendente lite purchaser. Such purchaser in 
 possession of land so purchased will not be regarded as holding it 
 adverse to the parties to the suit during the litigation.* 
 
 16. Vendor and Vendee. — Where the purchaser is in possession 
 under a complete legal title, such as a deed purporting to convey 
 the land, he will be considered as holding adversely to all the world, 
 including his vendor, from whom his title and possession are de- 
 rived. The entry or the holding in such case imparts no recogni- 
 tion of a subsisting title in another, by whose permission and in 
 subordination to whose continuing title the purchaser entered or 
 holds.^ 
 
 A grantee who has entered under a conveyance from his grantor 
 may lose his title by an adverse possession of such grantor, and 
 the grantor may thus claim to hold adversely to the grantee.* 
 
 least, conveyed it away. Little v. 
 Teague, 60 Miss. 115. 
 
 1. Demarest v. Wynkoop, 3 Johns. 
 Ch. (N Y.) 129; Slee v. Manhattan Co., 
 
 1 Paige (N. Y.), 48; Howland v. Shurtleff, 
 
 2 Mete. (Mass.) 26; Phillips v. Sinclair, 
 20 Me. ^69 ; Robinson v Fife, 3 Ohio 
 St. 551; Hoffman v. Harrington, 33 1 
 Mich. 392; Knowlton v. Walker, 13 Wis. 
 264; Crawford v. Taylor, 42 Iowa, 260; 
 Montgomery v. Chadwick, 7 Iowa, 114; 
 Hall V. Denckla, 28 Ark. 506; Gunn v. 
 Brantley, 21 Ala. 633; Slicer v. Bank, 16 
 How. (U. S.) 571. 
 
 2. Land is sold at a judicial sale, the 
 sale confirmed and a conveyance made to 
 the purchaser and he takes possession, the 
 litigation continues, and after the pur- 
 chaser has been in the actual possession 
 of the land under such conveyance for 
 more than ten years, the decrees order- 
 ing and confirming the sale are reversed 
 and declared void, and the sale set aside 
 for the want of jurisdiction in the court 
 to order the sale; during all this time the 
 taxes on the land are paid by the pur- 
 chaser, and the same is not charged for 
 taxes to the owner and he pa^s no taxes 
 on it. Htld, the possession of such 
 purchaser under such void sale is not ad- 
 verse to the owner. The payment of 
 the taxes by such purchaser inures to the 
 benefit of the owner, and the State can 
 have no claim against- the owner for 
 taxes on the land, and his title cannot 
 become forfeited for not also paying 
 taxes on the land. Lynch v. Andrews, 
 25 W, Va. 751. 
 
 3. Society, etc., z/.Clarke, 4 Pet. (U. S.) 
 480; Bradstreet v. Huntington, 5 Pet. 
 (U. S.) 402; Core t/.- Faupel, 24 W. Va. 
 238. 
 
 4. Sherman v. Kane, 86 N. Y. 57; 
 Cramer v. Benton, 4 Lans. (N. Y.) 291;. 
 Traip v. Traip, 57 Me. 268; Tilton v. 
 Emery, 17 N. H. 536: Stearns v. Hen- 
 dersass, 9 Cush. (Mass.) 497; s. c. 57' 
 Am . Dec. , 65 ; Borkman v. Jones, 44 Wis. 
 498; Dorian v. Magilton, 47 Cal. 485; 
 Garabaldi v. Shattuck, u Pac. Repr. 
 (Cal.) 778; Smith v. Monies. 11 Tex. 24. 
 
 When there is a disclaimer by the 
 grantor of the title of the grantee subse- 
 quent to the delivery of the grant, an ad- 
 verse possession may be acquired and it 
 is not necessary that such possession 
 should be hostile in its inception. Jack- 
 son V. Brink, 5 Cow. (N. Y.) 83; Mil- 
 lard V. McMuUin, 468 N. Y. 345; Sher- 
 man V. Kane, 86 N. Y. 57; Butler v. 
 Phelps, 17 Wend. (N. Y.) 642; Stiles v. 
 Jackson, i Wend. (N. Y.) 103; Catlino v. 
 Decker, 38 Conn. 262; Hoyt u. Jones, 31 
 Wis. 389; Burkman v. Jones, 44 Wis. 498; 
 Chalfin V. Malone, 9 B. Mon. (Ky.) 596. 
 
 The mere continued possession of 
 the vendor of lands is not adverse to his 
 vendee'. Ronan v. Meyer, 84 Ind. 390; 
 Jeffersonville, etc., R. Co. v. Oyler, 82 
 Ind. 394; Record v. Kelcham, 76 Ind. 
 482; Jackson v. Burton, i Wend. (N. Y.) 
 341; Marston v. Butler. 3 Wend. (N. Y.) 
 149; Beach v. Catlin, 4 Day (Conn.), 284; 
 s. C...4 Am. Dec. 221; Olwine v. Holman, 
 23 Pa. St. 279; Higginson v. Mein, 4 
 Cranch. 415; Harris v. King, 16 Ark. 122. 
 Compare Burkman v. Jones, 44 Wis. 498, 
 Furlong v. Garrett, 44 Wis. ill. 
 
 In Burbans v. Van Zandt, 7 Barb. 
 (N. Y.) 91, the court said: "By the 
 execution and delivery of a deed of land 
 the entire legal interest in the premises 
 becomes vested in the grantee, and if the 
 grantor continues in possession after- 
 
 247 
 
Hostile, 
 
 ADVERSE POSSESSION. Boundaries and FenceB. 
 
 17. Boundaries and Fences. — -^f one by mistake inclose the land 
 of another and claim it as his own, his actual possession will work 
 a disseisin ;i but if, ignorant of the boundary line, he makes a mis- 
 
 Wards, his possession is not that of him from the grantor's continued occu- 
 
 owner, but of a tenant of the grantee. 
 He will be regarded as holding the prem- 
 ises in subserviency to his grantee, and 
 nothing short of an explicit disclaimer of 
 such relation, and a notorious assertion 
 of right in himself, will be sufficient to 
 change the character of his possession 
 and render it adverse to the grantee. 
 But from the time the grantor explicitly 
 disclaims holding under the grantee, and 
 openly asserts his title to the premises, 
 in hostility to the title claimed under his 
 own previous deed, his possession be- 
 comes adverse, even though he knew his 
 title to be bad, and from that moment 
 the statute of limitations will begin to 
 run." See Hoyt v. Jones, 31 Wis. R. 389; 
 Butler V. Phelps, 17 Wend. (N. Y.) 642; 
 Stiles II. Jackspn, i Wend. (N. Y.) 103; 
 Cramer v. Benton, 4 Lans. (N. Y.) 2gi; 
 Chalfin V, Malone, g B. Mon. (Ky.) 596; 
 Creekmur v. Creekmur, 75 Va. 430. 
 
 A grantor with warranty may, subse- 
 'quent to the delivery of his grant, origi- 
 nate an adverse possession, and is not 
 estopped from asserting the same by the 
 covenant of warranty. Sherman v. Kane, 
 86 N. Y. 57. 
 
 Where possession is originally taken 
 and held under the true owner, a clear, 
 positive, and continued disclaimer and 
 disavowal of that title, and the assertion of 
 an adverse one, must be brought home to 
 the true owner before any foundation can 
 be laid for the operation of the statute of 
 limitations. Creekmur v. Creekmur, 75 
 Va. 430. 
 
 When a person who has conveyed 
 property by a warranty deed subsequently 
 acquires an interest in the same property 
 by a tax title, and conveys his subse- 
 quently-acquired title in a portion of the 
 property to third parties, who reside 
 thereon for more than ten years, their 
 title cannot be attacked. Reilly v. 
 Blasher. 28 N. W. Repr. (Mich.) 151. 
 
 The owner of land, while in its occu- 
 pancy as a homestead, conveyed the 
 same in fee, reserving in the deed, how- 
 ever, his homestead right. It was held, 
 the continued possession of the premises 
 by the grantor, after his conveyance, was 
 not adverse to his grantee, because such 
 possession was consistent with the deed. 
 Stevens v. Wait, 112 111. 544. 
 
 A cloud upon title cannot be created 
 by the owner of the title and exist by his 
 grant. And rights that may accrue to 
 
 pancy after deeding the property are not 
 to be enforced in equity if the bill does 
 not aver such possession as by lapse of 
 time or otherwise would legally extinguish 
 defendant's claim. Bresler v. Pitts, 58 
 Mich. 347. 
 
 1. Grim v. Murphy, no 111. 271; 
 Schneider v. Botsh, go 111. 577; Brown 
 V. Anderson, go Ind. 94; Bunce v. Bid- 
 well, 43 Mich. 542; Sherman v. Kane, 86 
 N.Y. 57; Crary v. Goodman, 22 N. Y. 170; 
 Swettenham ii. Leary, 18 Hun (N. Y.), 
 284; Seymourz/. Carli, 31 Minn. 81; Bur- 
 dick V. Heivly, ^3 Iowa, 511; Tracy v. 
 Newton, 55 Iowa, 210; Meyer v. Weig- 
 man, 45 Iowa, 57g; Hunter v. Chris- 
 man, B. Mon. (Ky:)463; Soule v. Bar- 
 low, 4g Vt. 32g; Burnell v. Malony, 39 
 Vt. 579! Enfield v. Day, 7 N. H. 457; 
 Abbott V. Abbott, 51 Me. 584; Hitchings 
 V. Morrison, 72 Me. 33 1; Ricker v. Hib- 
 bard, 73 Me. 105; Alexander!/. Wheeler, 
 69 Ala. 332. Cole v. Parker, 70 Mo. 372; 
 Walbrunn v. Ballen, 68 Mo. 164; Hamil- 
 ton V. West, 63 Mo. 93; Tam v. Kellogg, 
 49 Mo. 118; Houxj/. Batteen, 68 Mo. 84; 
 Chance v. Branch, 58 Tex. 490; Pouth- 
 mand v. McLaughlin, ^24 N. J. Eq. 181; 
 Mode SI. Long, 64 N. Car. 433. 
 
 Where defendant showed privity of 
 estate between him and a long line of 
 grantors to lot ^Jo. 17 in award of a city, 
 and buildings thereon obtruding some 
 feet over on lot 18 adjoining 17, continu- 
 ity of possession for more than twenty 
 years may be proven by parol between 
 him and his grantors — his predecessors 
 in the actual possession of the building 
 thus extending over part of 18. Actual 
 possession of such strip of 18 for twenty 
 years by the said buildings extending 
 thereon without written title thereto, is 
 good prescriptive title against all the 
 world, except the State and persons not 
 sui juris, unless such possession orig- 
 inated in fraud; and honest mistake of 
 the true line is not fraud. The fact that 
 the buildings stood so longover what may 
 now be claimed to be the true line is a 
 conclusive presumption that the plaintiff's 
 claim is not good, but that the old build- 
 ings mark the true line; especially against 
 a purchaser who bought after twenty 
 years' occupancy, and one of whose 
 grantors had knowledge of the buildings 
 years before. Shiels v. Roberts, 64 Ga. 
 
 370. 
 
 A leased two adjoining lots owned sep- 
 
 348 
 
Hostile. 
 
 ADVERSE POSSESSION. Boundaries and Fences. 
 
 take in laying his fence, making no claim, however, to the land to 
 the fence, but only to the true line as it may be subsequently as- 
 certained, his possession is not adverse.* If' two adjacent own- 
 ers agree upon and establish a dividing line between their prem- 
 ises, and actually claim and occupy the land on each side of that 
 line for the statutory period, such possession will be adverse and 
 will confer a title by prescription.® 
 
 arately by B and C. A built a dividing 
 fence, but not on the true division line. 
 He afterwards purchased the lot of B. 
 Held, that he could hold adversely the por- 
 tion of C's lot enclosed with the fence. 
 Belts V. Brown, 3 Mo. App. 20. See Mc- 
 Namara v. Seaton, 82 111. 498. 
 
 To constitute an adverse possession as 
 against the true ower, where a party un- 
 der a mistake as to the boundaries of his 
 deed claims land not embraced therein, 
 there must be an actual possession and 
 improvement of the land which lies out- 
 side of his boundaries. Simpson v. 
 Cresswell, 18 Fla. 29. 
 
 J. , owning a lot of land on the south side 
 of G street, with a frontage of one hun- 
 dred and twenty-six feet, conveyed a 
 piece thereof with a frontage of sixty feet 
 to the defendant, the latter supposing that 
 by the terms of his deed his lot extended 
 to a certain fence which would give him 
 a frontage of sixty-six feet. Soon after 
 the delivery of his deed, the defendant 
 entered, occupied, and cultivated the lot 
 to the fence for more than twenty consec- 
 utive years. Held, that if the defendant 
 claimed title to the fence during his en- 
 tire occupation, his title ripened into an 
 absolute title by disseisin, although he 
 was mistaken as to the true bound. 
 Hitchins v. Morrison, 72 Me. 331. 
 
 1. Huckshorn v. Hartwig, 81 Mo. 648; 
 Walbrunn v. Ballen, 68 Mo. 164; Cole v. 
 Parker, 70 Mo. 372; Acton v. Dooley, 
 74 Mo. 63; Houx V. Batteen, 68 Mo. 84; 
 Hamilton v. West. 63 Mo. 93; St. Louis 
 University z/. McCune, 28 Mo. 481; Tam 
 V. Kellogg, 49 Mo. 118; Shinnerw. Craw- 
 ford, 54 Iowa, iig; Grube v. Wells, 34 
 Iowa, 148; Grim v. Murphy, 110 111. 271; 
 Irvin V. Adler, 44 Cal. 559; Bfrown v. 
 Cockerill. 33 Ala. 38; Alexander v. 
 Wheeler, 69 Ala. 332; s. c, 78 Ala. 167; 
 Howard v. Reedy. 29 Ga. 152; Reley v. 
 GriflBn. 16 Ga. 141; s. c, 60 Am. Dec. 
 726; Hitchirigs v. Morrison, 72 Me. 331; 
 Abbott V. Abbott, 51 Me. 584; Worces- 
 ter V. Lord, 56 Me. 265; Dow v. McKen- 
 ney, 64 Me. 138; Bicker v. Hibbard, 73 
 Me. 105; Lincoln v. Edgecomb, 31 Me. 
 345; Comegys v. Carley, 3 Watts (Pa.), 
 280: Enfield J/. Day, 7 N. H. 457;. Rob- 
 inson V. Kinne, 70 N. Y. 147. 
 
 Where the owner of a city lot under- 
 takes to erect a building upon his own 
 ground, but, by inadvertence and igno- 
 rance of the true line of his lot, places a 
 portion of the wall four inches over the 
 dividing line and upon the adjoining lot, 
 but with no intention then or afterwards 
 to claim any portion of such adjoining 
 Itot as his own, and the adjoining lot- 
 owner had no knowledge of such en- 
 croachment, the possession thus taken 
 will not be adverse. Winn v. Abeles, 10 
 Pac. Repr. (Kans.) 443. 
 
 There must be an entry. Thus, where 
 there was a stone wall separating the 
 lands of adjoining owners, A and B, the 
 fence being upon the land of A, B held 
 possession of his land up to the wall, 
 and believed the centre of the wall to be 
 the dividing line, but with no knowledge 
 of a similar claim on the part of A, and 
 no other j50ssession of the ground cov- 
 ered by the wall, held, that there was 
 not sufficient adverse possession to Vest 
 in B a title to the centre of the wall. 
 Huntington v. Whaley, 29 Conn. 391. 
 
 If A and B, adjoining owners; by mis- 
 take agree upon a line, with no intent to 
 claim beyond the true line, they will not 
 hold adversely to each other. Houx v. 
 Batteen. 68 Mo. 84; Devyn v. Schaefer, 
 54 N. Y. 446; Irvine v. Adler, 43 Cal. 
 550; White w. Hopeman, 43 Mich. 267;, 
 s. c, 38 Am. Rep. 178. 
 
 2. Brown v. Leete, 6 Sawy. (U. S.) 
 ' 332 Sherman v. Kane, 87 N. Y. ?7; 
 Robinson v. Phillips, I T. H. (N. Y.) 151, 
 56 N. Y. 634; Donahue v. Thompson, 60 
 Wis. 500;Tobey w. Secor, 60 Wis. 310; Ba- 
 derz/. Zeise, 44 Wis. 96; Barlett v. Secor, 
 56 Wis. 520; Tracy v. Newton. 57 Iowa, 
 210; Heinrichs w. Terrell, 65 Iowa, 25; 
 Skinner v. Crawford, 54 Iowa, 130; Hiatt 
 V. Kirkpatrick, 48 Iowa, 78; Darst v. 
 Enlow, 3 Westn.'Repr. (111.) 480; Bitter 
 ■V. Seathoff, 98 111. 266; Cutter v. Calli- 
 son, 72 III. 113; Hubbard v. Stearns, 86 
 111. 35; White V. Hopeman, 43 Mich. 
 267; s, c, 38 Am, Rep. 178; Knowlton v. 
 Smith, 36 Mo. 507; Walbrunn v. Ballen, 
 68 Mo. 164; Cole v. Parker, 70 Mo. 372; 
 Hamilton v. West, 63 Mo. 93; Houx v. 
 Batteen, 68 Mo. 84; Mayer v. Rafferty, 
 I Head (Tenn,), 60; Brown v. Cockerell, 
 
 249 
 
Hostile. 
 
 ADVERSE POSSESSION. 
 
 Husband and Wife. 
 
 Where a grantor has designated his boundaries by the lines of 
 the surrounding surveys, his grantee may claim to those bounda- 
 ries.^ 
 
 18. Husband and Wife. — Adverse possession cannot exist as be- 
 tween husband and wife while the marital relation continues.** 
 
 a 3 Ala. 38; Irvin v. Adler, 44 Cal. 559; 
 irimm v. Curley, 43 Cal. 251. Watt v. 
 Ganahl, 34 Ga. 290; Howard v. Reedy, 
 29 Ga. 152; Shiels v. Roberts, 64 Ga. 
 370; Burrell o. Burrell, 11 Mass. 296; 
 Boston, etc., R. Co. v. Sparhawk, 5 
 Mete. (Mass.) 469; Smith v. McKay, 30 
 Ohio St. 409; Bohot/. Richmond, 25 Ohio 
 St. 115; Yetzer v. Thoman, 17 Ohio St. 
 130; Adams v. Rockwell, 16 Wend. 
 (N. Y.) 285; McCormick w. Barnum, 10 
 Wend. (N. Y.) 105; Dibble v. Rogers, #3 
 Wend (N. Y.) 536; Robinson v. Phillips, 
 1 Thomp. & C. (N. Y.) 151; Hodges v. 
 Eddy, 38 Vt. 345; Davis v. Judge, 46 
 Vt. 655; Faught V. Holway, 50 Me. 24 
 
 agreement and always afterward. White 
 V. Hapeman, 43 Mich. 267; s. c, 38 Am. 
 Rep. 178; Hagey v. Detweiler, 35 Pa. 
 St. 409. 
 
 An error was made in running a divi- 
 sion line between two farms. The par- 
 ties respectively occupied up to the erro- 
 neous line for more than twenty years. 
 Afterwards the correct line was run. 
 Held, (i) that if the parties occupied up 
 to the erroneous line, supposing it to be 
 the true boundary, and relying upon it, 
 such line could not be disturbed after- 
 wards, and a mere oral agreement to run 
 a new line could not disturb the title 
 thus fixed. But (2) if the parties did not 
 
 In Jones v. Smith, 64 N. Y. 180, where rely upon the first survey, but expected 
 it appeared that the adjoining owners for to settle the line by another when con- 
 more than fifty years had occupied each venient to make it, the mere possession 
 on his own side up to an old fence, which for twenty years, according to the erro- 
 fence had been put up and maintained as a neous line, would not give title; (3) the 
 division fence for more than twenty years question of the nature of the possession, 
 by an agreement, each owner keeping up and of the claims of thfe respective par- 
 one half, it was held that this was sufii- ties, is one of fact for the jury exclu- 
 cient evidence of a practical location, sively. Bunce v. Bidwell, 43 Mich.'542. 
 and an acquiescence in the fence as a See Yutzer v. Thoman, 17 Ohio St. 130. 
 boundary line, and of a. possession of Where owners of adjoining lots open 
 more than twenty years, in pursuance of an alley, lying one half on each lot, and 
 such location, to require the submission build barns and fences thereon, and ac- 
 of that question to the jury. quiesce in deeds describing the alley. 
 
 Where the division line between two etc., it constitutes an adverse possession 
 
 adjoining estates is indefinite or unascer- 
 tained, the owners may effectually agree 
 upon the true boundary, and the line thus 
 ascertained will control their deeds. A 
 jury may infer a practical location of a 
 disputed boundary line by agreement, 
 from long acquiescence, less than the 
 ■period necessary to constitute adverse 
 possession, and from acts and declara- 
 tions of the parties. Turner v. Baker, 64 
 Mo. 218; s. c, 27 Am. Rep. 226. and 
 note. See Hayes v. Livingston, 34 Mich. 
 384; s. c, 22 Am. Rep. 533; Baldwin v. 
 Brown, 16 N. Y. 363. 
 
 Adjoining owners orally agreed that 
 one of them should keep up a division 
 fence, but should keep it entirely within 
 his own bounds. After twenty years the 
 fence was moved to the boundary and 
 ejectment was brought for the strip of 
 land cut off by its removal. Held, that the 
 action would not lie. As the oral agree- 
 ment was void and the owner of the 
 strip might have withdrawn from it, the 
 strip was never held adversely to the 
 owner, whose title was recognized in the 
 
 under a claim of right, and by user for 
 twenty years they each acquire an ease- 
 ment in the premises of the other which 
 neither one can lawfully disturb, and an 
 injunction forbidding the obstruction of 
 such alley by one of the adjoining owners 
 against the other will be granted. Nich- 
 oils V. Wentworth, 100 N. Y. 455. 
 
 Where a line or corner is, in fact, cer- 
 tain, and an erroneous line or corner is, 
 by mistake, made, the acts of the parties 
 in making such mistake, and the fencing 
 by both parties, in accordance with such 
 mistake do not operate in the nature of 
 an estoppel in pais to forfeit the estate. 
 What subsequent acquiescence, after the 
 mistake is discovered, or what gross 
 neglect afterward to assert a right to 
 correct it, amounting to fraud, will con- 
 clude the owner, is another question. 
 McAfferty v. Conover, 7 Ohio St. 99; 
 Bobo vi Richmond, 25 Ohio St 115. 
 
 1. Hughes V. Pickering, 14 Pa. St. 297. 
 
 2. First Nat. Bank v. Guerra, 61 Cal. 
 169; Maudlin v. Cox, 7 Pac. Repr. (Cal.) 
 804; Bell V. Bell, 37 Ala. 536; Veal 
 
 250 
 
Sostile. 
 
 ADVERSE POSSESSION. 
 
 Permissive Entry. 
 
 19. Permissive Entry. — Where the entry is permissive the statute 
 will not begin to run against the legal owner until an adverse 
 holding is declared and notice of such change is brought to the 
 knowledge of the holder of the legal title.* 
 
 V. Robinson, 70 Ga. 809; Hendricks v. 
 Rasson, 53 Mich. 575. See Clark v. Gil- 
 bert, 39 Conn. 94. 
 
 If the land of avrlfe is sold by her hus- 
 band, the possession is not adverse 
 while the marriage exists. Stephens v. 
 McCormick, 5 Bush (Ky.), 181. 
 
 A husband's marital possession cannot 
 be' adverse to the wife's grantee. Van- 
 devoort v. Gould, 36 N. Y. 639. 
 
 In 1861, the defendant, C. Guerra, a 
 married woman, filed a declaration of 
 Iiomestead upon a tract of land then in- 
 closed and occupied by herself and hus- 
 band, but which formed part of a large 
 tract owned by her husband and others 
 as tenants in common; and from that 
 date occupied the land with her hus- 
 band, claiming it as a homestead, until 
 his death, in 1878, and afterwards by her- 
 self until the beginning of this action. 
 After the declaration of homestead, her 
 liusband and his co-tenants mortgaged 
 the larger tract to one'C, and the mort- 
 gage having been foreclosed, C. became 
 the purchaser of the mortgaged premises 
 and received his deed. Subsequently, in 
 January, 1873, the interests of C. in the 
 homestead premises by proper mesne 
 conveyances, became again vested in the 
 husband of G. and another of the original 
 CO tenants, and was by them subsequently 
 mortgaged, and under judgment of fore- 
 closure sold and conveyed to the plain- 
 tiffs. In an action to quiet title, to 
 "which G. was made a party, the court 
 below found that the homestead premises 
 had been held adversely by her from the 
 date of the filing of the homestead. 
 Held, the declaration of homestead filed 
 by G. was invalid because the premises 
 were then held by tenancy in common. 
 The finding as to adverse possession 
 cannot avail her. It was by virtue of 
 her marital relations with her husband 
 that she filed a declaration and has con- 
 tinued to claim the premises as a home- 
 stead. There is no pretence that her 
 husband claimed adversely to any one, 
 and, she could not claim adversely to him 
 cir those holding under him so long as he 
 remained as the head of the family, which 
 hS did until his death. First Nat. Bank 
 V. Guerra, 61 Cal. 109. 
 
 'Wliere the husband rents land from 
 thd owner, and inoves upon it with his 
 fdihily, in subordination to the owner's 
 title, the wife cannot during coverture. 
 
 claim the premises adversely, to the 
 owner so as to set the statute of limita- 
 tions in motion. Frink v. Alsip, 49 Cal. 
 103. 
 
 1. Allen V. Allen, 58 Wis. 202; Roebke 
 V. Andrews, 26 Wis. 311; Woodward v. 
 McReynolds, 2 Pin. (Wis.) 268; Bartlett 
 V. Secor, 56 Wis. 520; Plimpton v. Con- 
 verse, 44 Vt. 158; Morriir If. Titcorab, 8 
 Allen (Mass.), 100; Sherman v. Kane, 
 86 N. Y. 57; Babcock t/. Utter, i Keyes 
 (N. Y.), 397; Kathan v. Rockwell, 16 
 Hun (N. Y.), 90; Chance v. Branch, 58 
 Tex. 490; Pease v. Lawson, 33 Mo. 35; 
 Davis V, Bowmar, 55 Miss. 671; Roths- 
 child V. Hatch, 54 Miss. 554; Adams ». 
 Guice, 30 Miss. 396; Hays v. Morrison, 
 30 Ga. 971; Cooper v. McBride, 4 Houst. 
 (Del.) 461; Kincheloe v. Tracewell, 11 
 Gratt. (Va.) 587; Newlin v. Reynolds, 25 
 Gratt. (Va.) 137; Thomas v. Jones, 28 
 Gratt. (Va.) 383; Hudson v. Putney. 14 
 W, Va. 561; Core v. Faupel, 24 W, Va. 
 238; Dean v. Brown, 23 Md. 11; Alex- 
 ander V. Wheeler, 69 Ala. 332; Collins v. 
 Johnson, 57 Ala.304; Davenport v. Leb- 
 ring, 52 Iowa, 365; Grube v. Wells, 34 
 Iowa, 148; Calvin v. McCune, 39 Iowa, 
 502; Law V. Smith, 4 Ind. 56; Smith z/. 
 Stevens, 82 111. 554; Perkins v. Nugent, 
 45 Mich. 156; Harvey v. Tyler, 2 Wall, 
 (U. S.) 328. Compare Heiskell v. Cobb, 
 II Heisk. (Tenn.)638; Fords. Holmes, 
 61 Ga. 419. 
 
 When there is a gradual subsidence of 
 the water in a millpond because of the 
 want of repair of the dam, and the owner 
 of a pasture contiguous to the pond 
 turns his cattle in, and they wander from 
 the pasture over the bottom of the old 
 pond, such possession of the land made 
 dry by the water receding as the dam 
 lowered would indicate that it was not 
 adverse, but permissive. Eddy v. St. 
 Mars, 53 Vt. 462; s. c, 38 Am. Rep. 695. 
 
 Lands of the United States were en- 
 tered by a father in the name of his son, 
 and in 1849 the patent thereof was is- 
 sued to the son, who was then five years 
 of age. Before the issuance of the pat- 
 ent the father took possession of the 
 land, and occupied it continuously, im- 
 proving it and paying the taxes until his 
 death, in 1878. The son lived with his 
 father until some years after he became 
 of age. The father recognized his son's 
 title for years after he took possession of 
 the land, and never asserted a hostile ti- 
 
 351 
 
Actual. 
 
 ADVERSE FOSSESSION. 
 
 Actual. 
 
 20, Possession must be Actual.-r-It must be actual as contrasted with 
 constructive possession. There must be, therefore, in all cases an 
 entry in order that an ouster may be effected and an adverse pos- 
 session begun. It must be a going upon the land with a palpable 
 
 tie in himself until a few months before 
 his death. These facts being conclusive- 
 ly shown in an action of ejectment 
 brought by the son against one to whom 
 the father, by will dated in 1877 had de- 
 vised the land, it is held that the court 
 properly directed a verdict for the plain- 
 tiff without submitting the question of 
 adverse possession to the jury. Allen v. 
 Allen, 58 Wis. 202. 
 
 The equitable owner of a tract of land 
 caused the holder of a certificate of pur- 
 chase of the same to assign it to the son 
 of the former, in 1851, not for the purpose, 
 however, of passing the title, which fact 
 the son knew before he became of age, 
 which was in 1867; and he also knew that 
 the father claimed to be the owner of the 
 land, and paid all the taxes from 1851 to 
 1882 (more than thirty years), which 
 claim the son recognized repeatedly, and 
 when he rented part of the land of his 
 father, paid him rents therefor, and re- 
 ceived pay for all improvements he put 
 on the same while tenant, and stated to 
 the purchaser from his father that he had 
 no objection to his purchasing of his fa- 
 ther. The son, in 1882, filed his bill to set 
 aside the sale made' by his father, assert- 
 ing title in himself. It was held that the 
 laches of the son in asserting his rights, 
 if any, was a bar to the relief sought. 
 Whipple V. Whipple, 109 111. 418. 
 
 In 1826 P. conveyed to his brother E.'a 
 tract of land for a nominal consideration, 
 and a few days thereafter E. conveyed the 
 same tract to J., a son of P., then eight or 
 ten years old, living with his father on the 
 said land, for a like consideration. When 
 J. arrived*at the age of eighteen he was 
 put to the trade of a cabinetmaker by his 
 father; and when he arrived at maturity, 
 between 1840 and 1843, married, and af- 
 terwards lived separate from his father. 
 P. , the father, resided on the land at the 
 time of the conveyance to E., continued 
 to reside on it, claiming it as his, and ex- 
 ercising complete and notorious domin 
 ion over it (once in 1843 against the pro- 
 test of J., who was denied this right and 
 ordered off the land), until the death of 
 P., in 1873. In 1853 P. conveyed to his 
 son J. another tract of land, with which 
 J. said he was satisfied, and that he no 
 longer claimed the first-named tract. J. 
 lived and died on the tract last conveyed to 
 him. On the death of P., in 1873. hede- 
 vised to his son P., Jr., a son by his sec- 
 
 ond marriage, the first-named tract. In 
 an action of ejectment, brought after the 
 death of P. and J. by the heirs of J. against 
 P., Jr., to recover said first-conveyed 
 tract, held. P., and those claiming under 
 him, having held continual, adversary, and 
 notorious possession of the land under 
 claim of title, with the knowledge and 
 acquiescence of J., for a period beyond 
 the statutory bar, the heirs of J. cannot 
 now recover it from P., Jr., the devisee 
 of P. Creekraur ». Creekmur, 75 Va. 431. 
 
 Two minor children, while their father 
 was at sea, their mother, who had built 
 with her own money a house upon land 
 owned by the father, having died, left 
 the premises, which they had previously 
 occupied with their mother, and went to 
 live with their uncle, who was executor 
 of her will and called himself their 
 guardian. Their father visited them 
 about a year afterwards, and paid money 
 from time to time for their sup- 
 port, and corresponded with them 
 often, but, after his first visit, went to a 
 foreign country and lived there. The 
 uncle, while the children were living 
 with him and their father was away, let 
 the premises at will only, and without 
 specifying his authority. He credited 
 the children with the rent in his private- 
 account book, and charged them with 
 the cost of their support; and also ac- 
 counted with their father, so far as re- 
 quired. The mother left a will, by which 
 she gave the house to the children; and 
 the uncle insured it for their benefit. 
 They afterwards gave notice to quit to 
 the tenant of the house, and occupied it 
 themselves. Held, on a writ of entry by 
 the father against the children, brought 
 more than twenty years after their moth- 
 er's death, that there was no evidence 
 that they had acquired a title by an ad- 
 verse possession. Silva v. Wimpenny, 
 136 Mass. 253. 
 
 If A is entitled to a conveyance of 
 land, and, by an agreement between A 
 and B, in order to defraud A's creditors, 
 the land is conveyed to B, a title to the 
 land by adverse possession of more than 
 twenty years may be acquired by A 
 against B, although A is without means 
 to pay his debts during such possession, 
 if B knows that A is holding the land ad- 
 versely and under a claim of right during 
 his possession. Elwell v. Hinckley 138; 
 Mass. 225. 
 
 353 
 
Actual. 
 
 ADVERSE POSSESSION. 
 
 Actual, 
 
 intention to claim it as his own by the person entering. To bar 
 the legal title an entry on the land is indispensable. And the in- 
 trusion on the land must be accompanied by a claim of right and 
 not the assertion of an outstanding title pre-existing to the land. 
 The principle of the prescriptive bar is to treat him, who has had 
 the absolute dominion and enjoyment of the land, for a given 
 number of years, as the true owner, against all proofs to the con- 
 trary. It is this absolute dominion and enjoyment which consti- 
 tute actual possession, and there can be none other. The posses- 
 sion may be held under color of title, or as an intruder without 
 any color of title.* (See Definition of ACTUAL, ante, p. 183.) 
 
 Where one who is in possession of land 
 is present at its sale by another, and 
 makes no claim to it, such possession con- 
 tinued after the sale will be deemed to 
 be subordinate and friendly to the pur- 
 chaser, and cannot be changed into an 
 adverse holding so as to permit the run- 
 ning of the bar of the statute of limita- 
 tions, until a knowledge of its adverse 
 character is brought home to the pur- 
 chaser, and the burden of showing such 
 change and knowledge is on the party 
 so claiming adverse possession, Wilker- 
 son V. Thompson, 82 Mo. 317. 
 
 L. claimed a right of way over H,'s 
 land by virtue of adverse user for over 
 twenty years. H.'s defence was that 
 he had given a license to the grantor 
 of the complainant a long while ago, 
 when he and the grantor had a conversa- 
 tion in which the grantor had said "that 
 he would not want to use the said way 
 much, but only once in a while." Held, 
 that such a statement could not be con- 
 strued to show a license. A formal asking 
 and granting is necessary. Leonard v. 
 Hart, 2 Atl. Repr. (N. J.) 136. 
 
 In 1856 D. purchased a half-section of 
 land, upon which were cabins, outhouses, 
 a dwelling, and one hundred acres of 
 which ,were cleared. The deed was made 
 to D.. and immediately afterward J., the 
 son of D., recently married, entered.upon 
 and took possession of the land. He 
 held it until 1869, when VS., in consider- 
 ation of love and affection, deeded to him 
 the home place, containing a section, to 
 which he moved; but he continued to ex- 
 ercise complete control over the half-sec- 
 tion from which he had moved. An ac- 
 tion of ejectment was brought in 1879 '° 
 recover of J. the half-section referred to. 
 The plaintiffs claimed as the residuary de- 
 visees of D., who died in 1871; J. claimed 
 under a parol gift made at the time of 
 his entry, and an alleged adverse posses- 
 sion of over twenty years. There was 
 no direct proof as to the terms of his en- 
 try, whether under a parol gift or mere 
 
 253 
 
 license from D. to occupy the land and 
 use and enjoy the rents and profits. Un- 
 til 1S67 it was assessed to, and the taxes 
 were paid by, D. ; but at this time he sent 
 a message to J. , saying that he was tired of 
 paying taxes on land and have other peo- 
 ple get the profits, and desired him to 
 pay on this. After that J. paid the taxes. 
 Both J. and D. spoke at times of the land 
 as J. 's, and in 1862 D. spoke to a witness of 
 having given the land to J. In D.'s fam- 
 ily it was spoken of as J.'s land. J. used 
 and occupied it as his own, made the nec- 
 essary improvements and repairs, and 
 received the rents and profits. D., in 
 listing his own lands, included this, and 
 at times spoke of it as his land. 
 When, in i86g, he made the deed of 
 his home place to J. he was asked if he 
 did not intend to include this land, he re- 
 plied, " I do not." D. gave to each of his 
 other children a hal-fsection of land. In 
 1869 J. promised a grandson of D. to get 
 him to deed the grandson this land, and 
 said that D. had intended to do it anyway. 
 Held, upon the facts above stated, that 
 J, entered the land originally under a 
 mere license from D. to use and occupy 
 it and enjoy its rents and profits, and that 
 J. is not shown in any subsequent acts 
 during D.!s lifetime to have asserted any 
 claim to the land hostile to D.'s title. 
 Dean v. Tucker, 58 Miss. 487. 
 , 1. Miller v. Shaw. 7 S. & R. (Pa.) 129; 
 Altemas v. Campbell, 9 Watts (Pa.), 28; 
 s. c, 34 Am. 'Dec. 494; Bradford v. Gu- 
 thrie, 4 Brews. (Pa.) 351; Soule v. Bar- 
 low, 49 Vt. 329; Jewett V. Hussey, 70 
 Me. 433; Cook V. Babcock, 11 Cush. 
 (Mass.) 209; Huntington v. Whaley. 29 
 Conn. 391; Ogden v. Jennings, 66 Barb. 
 (N. Y.)30i; 62 N. Y. 526; Bear Valley 
 Coal Co. I/. Dewart, 95 Pa. St. 72; Mor- 
 rison V. Hammond, 27 Md. 604; Beatty 
 V. Mason, 30 Md. 409; Creekmur v. 
 Creekmur, 75 Va. 430; Core v. Faupel, 24 
 W. Va. 238; Parker v. Banks, 79 N. 
 Car. 480; Malloy v. Bowden, 86 N. Car. 
 251; Pegues K. Warley, 14 S. Car. 180; 
 
Actual. 
 
 ADVERSE POSSESSION. 
 
 Actual. 
 
 No particular act or series of acts are necessary to be done on 
 the land, in order that the possession may be actual. Any visible 
 or notorious acts, which clearly evidence the intention to claim 
 ownership and possession, will be sufficient to establish the claim 
 of adverse possession.^ 
 
 Huntington v. Allen, 44 Miss. 654; Den- 
 ham V. Holeman, 26 Ga. 182; s. c, 71 
 Am. Dec. 193; Eagle, etc., Co. v. Bank, 
 55 Ga. 44; Satterwhite v. Rosser, 61 Tex. 
 166; Bracken v- Jones, 63 Tex. 184; Bow- 
 man V. Lee, 48 Mo. 335; Fugate v. 
 Pierce, 49 Mo. 441; Bradley v. West, 60 
 Mo. 33; Ringo V. Woodruff, 43 Ark. 469; 
 Horbach v. Miller, 4 Neb. 31; Booth v. 
 Small, 25 Iowa, 177; Ambrose v. Raly, 
 58 111. 506; Yelverton v. Steele, 40 Mich, 
 538; Sparrow v. Hovey, 44 Mich. 63; 
 Peterson v. McCuUough, 50 Ind. 35; 
 Washburne v. Cutter, 17 Minn. 361; Pep; 
 per V. O'Dowd, 39 Wis. 548; Unger w. 
 Mooney, 63 Cal. 586; s. c, 49 Am. Rep. 
 100; Holtzapple v. Phillibaum, 4 Wash. 
 <U. S.) 356. 
 
 "The books require color of title, by 
 deed or other documental semblance of 
 right in the defendant, only when the 
 defence is founded on a constructive ad- 
 verse possession. But neither a deed 
 nor any equivalent muniment is neces- 
 sary; where the possession is indicated 
 by actual occupation, and any other evi- 
 dence of an adverse claim exists." Per 
 Cowen, J., in Humbert w. Trinity Church, 
 24 Wend. (N. Y.) 604. 
 
 A mere squatter on land cannot avail 
 himself of his occupancy unless he has 
 denied, or impugned, the title of the real 
 owner. Sackett v. McDonnell, 8 Biss« 
 (U. S.) 394; Nowlin V. Reynolds, 25 
 Gratt. (Va.) 137; Rannels v. Rannels, 52 
 Mo. 108. 
 
 A prior possession, to be effective as 
 against a mere squatter or intruder in 
 actual possession, must be an actual, un- 
 abandoned possession. The payment of 
 taxes, surveying and mapping the lands, 
 and executing a mortgage covering them, 
 do not constitute such possession. Simp- 
 son V. Creswell, 18 Fla. 29. 
 
 A was in possession under color of ti- 
 tle. He sold a part of the land, including 
 the improvements, to B, Held, that A's 
 possession was actual as to the part im- 
 proved and inclosed, and constructive as 
 to the limits defined by his color of title. 
 That the sale to B extended B"s posses- 
 sion no further than the limits of his 
 deed, and that A having parted with ac- 
 tual possession, lost thereby his con- 
 structive possession of the part unsold. 
 Cunningham v. Fraudtzen, 26 Tex. 34. 
 See Chandler v. Rushing, 38 Tex. 591. 
 
 A took color of title for several lots. 
 He occupied one and paid taxes, and ex- 
 ercised ownership over the others. Held, 
 that his possession was confined to the 
 lot actually occupied, and not to the lots 
 unoccupied and unimproved. Wilson v. 
 McEwan, 7 Oregonj 87. 
 
 The statute does not run against the 
 owner of unoccupied lands until some 
 one assumes to take adverse- possession; 
 and this rule applies as well to an as- 
 signee in bankruptcy, who under the Re- 
 vised Statutes, § 5057, must bring suit 
 within two years as to the original owner. 
 Gray v. Jones, 14 Fed. Repr. 83. 
 
 Evidence is admissible, to establish 
 occupation, that the person under whom 
 defendants claim performed work upon 
 the land during his lifetime. Lick v. 
 Diaz, 44 Cal. 479. 
 
 Much depends on the situation of the 
 property and the use to which it is ap- 
 plied. Mooney v. Coolidge, 30 Ark. 
 655; Dorr w. School Dist., 40 Ark. 237. 
 See Bowen v. Guild, 130 Mass. 121. 
 
 After actual entry, the claim must be 
 limited to limits made at the time. It 
 cannot be enlarged without making a 
 new entry. Pepper v. O'Dowd, 39 Wis. 
 538. 
 
 Secret Trust. — If A is entitled to a 
 conveyance of land, and, by an agree- 
 ment between A and B, in order to de- 
 fraud A's creditors, the land is conveyed 
 to B, a title to the land by adverse pos- 
 session of more than twenty years may 
 be acquired by A against B, although A 
 is without means to pay his debts during 
 such possession, if B. knows that A. is 
 holding the land adversely and under a 
 claim of right during his possession. El- 
 well V. Hinckley, 138 Mass. 225. See 
 Jones w. Wilson, 69 Ala. 400; Williams 
 V. Higgins, 69 Ala. 517. Compare Estes 
 V. Long, 71 Mo. 605. 
 
 1. Tiedeman on Real Prop. § 697; 
 Faught V. Holway, 50 Me. 24; Bailey v. 
 Carleton, 12 N. H. 9; s. c, 37 Am. Dec. 
 igo; Blood v. Wood, i Mete. (Mass.) 528; 
 Bates V. Norcross, 14 Pick. (Mass.) 224. 
 See 17 Pick, 14; s. c, 28 Am. Dec. 271; 
 La Frombois v. Jackson, 8 Cow. (N. Y.) 
 589; s. c, 18 Am. Dec. 463; Longworthy 
 V. Myers, 4 Iowa, 18: Ford ». Wilson, 35 
 Miss. 504; s. c, 72 Am. Dec. 137: Roy- 
 all V. Lisle, 15 Ga. 545; s. c, Co Am. 
 Dec. 712; Ellicott v. Pearl, 10 Pei. (U. 
 
 254 
 
Actual. 
 
 ADVERSE POSSESSION. 
 
 What conBtitutes. 
 
 21, What constitutes Possession. — What is actual possession de- 
 pends largely upon the nature of the land and uses to which it 
 would naturally be put. The usual and decisive modes and 
 acts of actual possession are occupation, residence, cultivation, 
 inclosure, and improvement suitable to the character of the land.^^ 
 
 S.) 412; Ewing V. Burnett, 11 Pet. (U. S). 
 
 41. 
 
 "So much depends on the situation 
 and nature of the properly, the uses to 
 which it can be applied, or to which the 
 owner or claimant may choose to ap- 
 ply it, that it is difficult to lay down any 
 precise rule adapted to all cases." Ew- 
 ing V. Burnet, 11 Pet. (U. S.)4i. See 
 Bowen v. Guild. 130 Mass. 123; Mooney 
 ■V. Coolidge, 30 Ark. 65; Dorr v. School 
 Dist., 40 Ark. 243. 
 
 If the land is not susceptible; of any 
 permanent improvement, actual occu- 
 pancy, cultivation or residence may not 
 be necessary in order to constitute ad- 
 verse possession. Washburne v. Cutter, 
 17 Minn. 361; Leeper v. Baker, 68 Mo. 
 407; Royal V. Lislej 15 Ga. 545; s. c, 60 
 Am. Dec. 712. 
 
 The same rule will not apply equally 
 to towns, cultivated lands, and wild 
 lands. Draper v. Shoot, 25 Mo. 197; 
 s. c, 69 Am. Dec. 462; Leeper v. Ba- 
 ker, 68 Mo. 407; Brumagin -v. Bradshaw, 
 39 Cal. 631. 
 
 1. Martin v. Judd, 81 111. 488; Smith 
 •V. Jackson, 76 111. 254; Clement v. 
 Perry, 34 Iowa, 567; Hunton v. Nichols, 
 
 55 Tex. 217; Read v. Allen, 63 Tex. 154; 
 Mooney v. Coolidge, 30 Ark. 655; Door 
 V. School Dist., 40 Ark. 243; Leeper v. 
 Baker, 68 Mo. 407; Draper v. Shoot, 25 
 Mo. 197; s. c, 69 Am. Dec. 462; McMul- 
 lin V. Erwin, 58 Ga. 427; Bell v. Denson, 
 
 56 Ala. 444; Humphries v. Huffman, 33 
 Ohio St. 403; Taylor v. Burnsides, I 
 Gratt. (Va.) 165; Core v. Faupel, 24 W. 
 Va. 238: Schuylkill Co. v. McCreary, 58 
 Pa. St. 304; Jackson v. Warford, 7 Wend. 
 (N. Y.) 62; Erwin v. Olmsted, 7 Cow. 
 (N. Y.) 229; Finlay v. Cook, 54 Barb. 
 (N. Y.) g; Bowen v. Guild, 130 Mass. 
 121; Poignard v. Smith, 6 Pick. (Mass.) 
 i72;.Cutteri'. Cambridge, 6 Allen (Mass.), 
 20; Bennetts. Clemence, 6 Allen Mass.), 
 18; Bates V. Norcross, 14 Pick. (Mass.) 
 224. See 17 Pick. 14: s. c, 28 Am. Dec. 
 271; Goodwin v. Sawyer, 33 Me. 541; 
 Brumagin v. Bradshaw, 39 Cal. 24; Ew- 
 ing V. Burnet. 11 Pet. (U. S.) 41. 
 
 What constitutes an actual possession 
 must be governed by the facts of each 
 case. Leeper v. Baker, 68 Mo. 405; 
 Turner v. Hall, 60 Mo. 275. See Ford 
 V. Wilson, 35 Miss. 505. 
 .. A fence, building, or other improve- 
 
 ment is not essential to constitute an ad- 
 verse possession. Acts of ownership un- 
 der a claim of right, visible, are sufficient 
 to authorize the court to find such pos- 
 session. Leeper v. Baker, 68 Mo. 400. 
 See Bell v, Denson, 56 Ala. 448. 
 
 In Davis v. Bowmar, 55 Miss. 671, the 
 court said: " It is certain that appellant 
 took possession, under some sort of 
 right in himself, of a wilderness, felled 
 the forest, cleared the jungle, erected 
 fences and buildings, made the place his 
 home, cultivated it, protected it by 
 levees, had it assessed as his own, paid 
 taxes on it, and enjoyed exclusive pos- 
 session and control of it as his own from 
 183610 1863; and in the uncertainty, if 
 any, from the imperfect knowledge we 
 have, as to how the possession began, 
 appellant is entitled to the benefit of the 
 just presumption that he was holding as 
 owner from having acted so long and 
 from the beginning as owners do, and so 
 inconsistently wiili the idea of title in 
 any other than himself." Alexander v. 
 Polk, 39 Miss. 737; Hollister v. Young, 
 42 Vt. 407: Johnson v. Gorham, 38 Conn. 
 522; French v. Pearce, 8 Conn. 439; s. 
 c, 21 Am. Dec. 680; Smith v. Roberts, 
 62 Ala. 83; Overfield v. Christie, 7 S. & 
 R. (Pa.) 173; Paine v. Skinner, 8 Ohio, 
 159: Allen V. Allen, 58 Wis. 205; Sedg. 
 & W. Trial of Title to Land, § 758; 
 Angell on Lim. §§ 390, 391, 392, and 
 cases cited in the notes. 
 
 Occupation of the land is to be regulat- 
 ed by its character. If it is wild land inca- 
 pable of improvement to fit it for resi- 
 dence, the possession and use must be 
 such as from its nature it is susceptible 
 of. Clancey v. Houdlette, 39 Me. 451; 
 West V. Lanier, 9 Humph. (Tenn.) 762; 
 Bell V. Denson, 56 Ala. 444. 
 
 A. was the grantor of a right to main- 
 tain a dam which would raise the water 
 in a certain stream four inches above a 
 designated rock. In 1843 he constructed 
 a dam which was maintained at the same 
 height continuously until 1880, when suit 
 was brought to recover damages for 
 backing up the water. The court 
 charged the jury: "In considering the 
 question as to whether the defendant ac- 
 quired a right by prescription, you will 
 inquire whether at any time since 1843 
 there has been twenty-one years at a 
 stretch that the owners of the mill 
 
 355 
 
Actual. 
 
 ADVERSE POSSESSION. 
 
 Wbat constitates.. 
 
 The possession need not be personal, it may be by agent or tenant 
 (q. v.), or one under a contract of purchase. (See COLOR OF 
 Title ; Visible, Notorious, and Exclusive Possession,/^j/.) • 
 
 swelled the water up higher than what is 
 shown by the four inches above the 
 stone. . . . If you come to consider that 
 part of the case you will inquire. Where 
 is the testimony of the witnesses to show 
 that for twenty-one years, at any time 
 since 1843, there was a use of this water 
 so as to swell it back over the four inches ? 
 If you do not find such evidence you 
 will say that under no consideration is 
 the title by prescription established." 
 Held, that this was error. The depth of 
 water in such a basin is necessarily in- 
 constant and variable. If the defendant, 
 or those under whom he claims for a 
 period of twenty-one years before suit 
 brought, under a claim of right, openly, 
 continuously, and uninterruptedly main- 
 tained his dam of the same height, 
 whilst the owner of the lands farther up 
 the stream was under no disability to re- 
 sist the use, the law would presume a 
 grant of the right to maintain it. Gerh- 
 man v. Erdman, 105 Pa. St. 371. 
 
 The leasehold interest in a lot of 
 ground was conveyed by W. to B. 
 Shortly afterwards W. entered upon the 
 property, and he with his family contin- 
 ued in possession for over twenty years, 
 paying the taxes and ground rent, and 
 allowing members of his family to spend 
 their money in erecting buildings and 
 improving the property. In an action 
 of ejectment brought by persons claim- 
 ing through W., it was held that these 
 were facts clearly indicating a claim of 
 title to the property by W., and that his 
 possession was maintained under such 
 claim, and not under a contract with or 
 permission from B. That such posses- 
 sion must be regarded as adverse and 
 conclusive against B. and those claiming 
 under him. Waltemeyer v. Baughman, 
 63 Md. 200. 
 
 Where lands were open and uninclosed, 
 but it appeared that defendant and 
 those under whom he claimed had for 
 more than ten years claimed and exer- 
 cised the exclusive right to cut timber 
 and grass therefrom, and had at various 
 times sold the right to cut grass to others. 
 held, that such possession was effectual 
 as actual inclosure of the land. Torey 
 V. Bigelow, 56 Iowa, 381. See Clement 
 V. Perry, 34 Iowa, 564. 
 
 Surveying the land and paying the 
 taxes will not constitute actual occupancy. 
 Thompson v. Burhans, 61 N. Y. 70. 
 
 A person having color of title to land, 
 
 during a period exceeding ten years, 
 paid taxes on it and went upon it and cut 
 and carried off firewood and rails. Held, 
 that this was not such visible, notorious, 
 and continuous possession as would give 
 him title under the statute. Pike v. 
 Robertson, 79 Mo. 615. 
 
 In Mooney v. Cooledge, 30 Ark. 655 
 the court said: "It is not the particu- 
 lar use made of the land, or whether 
 built upon and used as a residence, or 
 cleared and cultivated as a farm, but 
 the exclusive use and adverse posses- 
 sion may be proven as well by other 
 acts and declarations, which show a 
 visible, open, and exclusive possession 
 and use of the land." See Kerr v. Hitt, 
 75 111. 51; Clement v. Perry, 34 Iowa, 
 
 567. 
 
 If there is continuous dominion mani- 
 fested by continuous acts of ownership, 
 it is sufficient. Coleman v. Billings, 89 
 III. 1B3. Leeper v. Baker, 68 Mo. 400. 
 Compare Martin v. Judd, 81 111. 488; 
 Sloan w. Martin, 33 Tex. 417. 
 
 Possession by Agent. — It is not neces- 
 sary to prove actual occupancy bj' the 
 defendant himself; it may be by himself, 
 or by tenants holding under him. Elliott 
 V. Dycke, 78 Ala. 150. 
 
 Land was in the possession of the 
 widow (as tenant in dower) and the in- 
 fant heir of one who died seized thereof. 
 A brother of the deceased obtained a 
 quitclaim deed of the land from another 
 brother and a sister, but took no steps 
 to obt!»in ppssession thereunder. After- 
 wards he obtained from the widow a 
 quitclaim deed reciting that he and his 
 brother and sister were the heirs of the 
 deceased (apparently upon the theory of 
 the illegitimacy of the child), and entered 
 and continued in possession under such 
 latter deed. After attaining majority 
 the heir brought ejectment and the de- 
 fendant answered claiming title by ad- 
 verse possession under color of the quit- 
 claim deed from his brother and sister. 
 Held, not having entered under such 
 deed, the defendant could not base there- 
 on his claim of title by adverse posses- 
 sion. By the quitclaim deed from the 
 widow the defendant obtained only her 
 dower right, and became a tenant in 
 common with the heir. The recitals in 
 the deed by the mother do not affect the 
 right of the heir. Having by his answer 
 set up title in himself to the entire es- 
 tate, based wholly upon adverse posses- 
 
 356 
 
.Actual. 
 
 ADVERSE POSSESSIQN. 
 
 What constitutes. 
 
 But neither actual occupation, cultivation, nor residence is nec- 
 essary to constitute actual adverse possession, when the property 
 is so situated as not to admit of any permanent useful improve- 
 ment, and the continued claim of the party h^s been evidenced 
 by public acts of ownership, such as he would exercise over prop- 
 erty which he claimed in his own right, and would not exercise 
 over property which he did not claim, '^ unless the statute pre- 
 scribes the manner of occupancy. 
 
 si'on, the defendant cannot, to shield his 
 possession, claim to hold as tenant in 
 
 • commpn with the plaintiff. Watts v. 
 Owens, 62 Wis. 512. 
 
 Flowing Land with Water. — At the 
 trial of a writ of entry, brought in 1880, 
 to recover a parcel of flats, there was 
 evidence that the flats were originally 
 flowed by tide water, and were in a cove, 
 across the mouth of which, as early as 
 1645, a dam had been built to obtain 
 power for running a tide-mill; that, in 
 1803, a corporation, authorized by its 
 
 -charter to operate a canai, and to hold 
 mill-seats on waters connected with its 
 
 ■ canal, took a deed of the demanded 
 premises; and entered its canal upon the 
 mill-pond, and had a floating tow path 
 projecting into the pond, which, in 1829, 
 was removed, and a solid tow-path was 
 built; that, from 1829 to 1851. the pond 
 was used for canal and mill purposes, 
 and was flowed or emptied at con- 
 venience: that canal-boats and timber 
 were kept in the pond by the corporation, 
 and no person other than the corpora- 
 tion exercised any control over the pond; 
 that, in 1839, the corporation executed a 
 lease of the mill for fifteen years, with 
 liberty to use soil from the bottom of the 
 pond to repair the dam; that the canal 
 was discontinued in 1851, after which the 
 pond was used for mill purposes and to 
 store timber; that, in 1844, the corpora- 
 tion conveyed the mill and pond, subject 
 to the lease, and subject to the right of- 
 the corporation to use the pond for canal 
 purposes and to store limber therein; 
 that material was used at different times 
 from the bottom of the pond to repair the 
 dam; that access from the sea was cut 
 
 ■ off by the dam, and access from the up- 
 land was cut off by the canal and tow- 
 path; and that the mill was abandoned 
 in 1872. Htld, that this evidence would 
 warrant a finding that a title to the soil 
 
 Lunder the pond had been acquired by ad- 
 verse possession. Eastern R. v. Allen, 
 :i35 Mass. 13. Compare Clarke v. Wag- 
 -ner, 74 N. Car. 791. 
 
 Easband and Wife. — Possession by 
 :the wife, where the husband has been 
 
 continuously absent from the State will 
 not be sufficient. Morrell v. Ingle, 23 
 Kan. 32. 
 
 Fences. — A fence or inclosure is not an 
 essential element of an adverse posses- 
 sion, and permitting a fence to become 
 dilapidated, or even destroyed, during 
 the interval between periods when neces- 
 sary to protect the crops does not, of 
 itself, constitute an abandonment, nor 
 interrupt the continuity of the possession. 
 Hughes V. Anderson, S. C. Ala. Dec. 
 Term, 1885-86. The court said: "A 
 fence or inclosure is not an essential 
 element of adverse possession, but is 
 only one of the many acts indicative of 
 possession and claim of ownership. It 
 is often very important, it is true, to 
 mark with precision the limits or boun- 
 daries of a possession, especially when 
 the occupant is without color of title, 
 which would answer this purpose. In 
 a section of the country, for example, 
 where fence laws have been abolished, 
 the absence of an inclosure would weigh 
 but little, where a river constitutes a 
 boundary line. The reason is that it 
 would then be no index of an intention 
 to abandon. It has often been decided 
 in this country that the possession of 
 an occupant may be adverse without 
 either inclosure or improvements. Bell 
 V. Benson. 56 Ala. 444; EUicott v. 
 Pearl, 10 Pet. (U. S.) 441; Leeper v. 
 Baker. 68 Mo. 400; Angell on Lim. T 
 400 ; Real Property Trials (Malone). § 
 277-278. And color of title is some- 
 times said to be a substitute for a sub- 
 stantial and permanent fence around the 
 premises claimed. Trial of Titles to 
 Land (Sedg. & Wait), § 707; Watson ii. 
 Mancill, 76 Ala. 600." See McCreery 
 V. Everding. 44 Cal. 246. Compare Pul- 
 len V. ^Hopkins, i Lea (Tenn.). 741. 
 
 Bnxying-grotmd. — A family burying- 
 ground will constitute actual possession 
 as to the part occupied by the graves. 
 Mooney v. Cooledge, 30 Ark. 655. 
 
 1. Ford V. Wilson, 35 Miss. 490; s. c, 
 72 Am. Dec. 137; Moss v. Scott, 2 Dana 
 (Ky.), 275; Royall v. Lisle, 15 Ga. 545; 
 s. c, 60 Am. Dec. 712; Dorr v. School 
 
 257 
 
Actual; 
 
 ADVERSE POSSESSION. 
 
 What constitnteB. 
 
 Occasional Use not sufficient. ^The. possession must, to be actual, 
 be continuous. An occasional or sporadic use of the land, such as 
 occasionally cutting grass or firewood, or the erection of tempo- 
 rary structures, will not be sufficient to establish an adverse pos- 
 
 session.^ 
 
 Dist., 40 Ark. 237; Draper v. Shoot, 25 
 Mo. 197; s. c, 69 Am. Dec. 462; Sleeper 
 V. Baker, 68 Mo. 400; Merchants' Bank 
 V. Clavin, 60 Mo. 559; Coleman v. Bil- 
 lings, 89 111. 183; Clement v. Perry, 34 
 Iowa, 567; Brumagin v. Bradshaw, 39 
 Cal. 24; Robinson v. Sweet, 3 Me. 315; 
 Ewing V. Burnett, ll Pet. (U. S.) 41; EUi- 
 cott V. Pearl, 10 Pet. (U. S.) 412. 
 
 1, Trustees j. Kirk, 68 N. Y. 459; 
 Wheeler v. Winn, 53 Pa. St. 122. 
 
 Occasional trespass, even though' the 
 trespasser avows an intention to make 
 an adverse claim, will not constitute pos- 
 session. Ewing V. Alcorn, 40 Pa. St. 
 492; Washabough v. Entriken, 34 Pa. 
 St. 74; s. c, 36 Pa. St. 513; Miller v. L. 
 I. R. Co., 71 N. Y. 380. 
 
 Mere fugitive, disconnected trespasses, 
 such as cutting trees, stripping bark, 
 surveys, etc., however long continued, 
 will not constitute such a possession as 
 will ripen into a title. Rivers v. Thomp- 
 son. 46 Ala. 633; Cornelius v. Giberson, 
 I Dutch. (N. J.) 33; Parker v. Parker, i 
 Allen (Mass.), 245; Congdon z/. Morgan, 14 
 S. Car. 587; While v. Reid, 2 N. & McC. 
 (S. Car.) 534;McBeth v. Donnelly, Dud. 
 (S. Car.) 177; Slice v. Derrick, 2 Rich. (S. 
 Car.) 627; Williams v. Wallace, 78 N. 
 Car. 354: Long v. Young, 28 Ga. 130; 
 Rilener v. Bowman, 53 Pa. St. 313; 
 Beaupland v. McKeen, 28 Pa. St. 124; 
 s. c, 70 Am. Dec. 115; Sorber w. Wil- 
 ling, 10 Watts (Pa.), 141 ; Pasley v. Eng- 
 lish, 5 Gratt. (Va.) 141; Anderson v. Har- 
 vey, 10 Gratt (Va.) 386; Austin v. Holt, 
 32 Wis. 478; Washburn v. Cutter, 17 
 Minn. 361: Miller v. Long Island R. Co., 
 71 N. Y. 380; PuUen v. Hopkins, I Lea 
 (Tenn.), 741. Compare Clement v. Perry, 
 34 Iowa, 564. 
 
 The mere entry from year to year for 
 the purpose of cutting grass is not an act 
 manifesting a purpose of taking posses- 
 sion as owner. Roberts v. Baumgarten, 
 51 N. Y. Super Ct. 482; Wheeler v. 
 Spinola, 54 N. Y. 377. 
 
 Occupying a sugar place, from year to 
 year, only for the purpose of making 
 sugar, which place is separated from th? 
 *ome farm by intervehing lands owned 
 by others, is not actual or continuous pos- 
 session. Wilson w. Blake, 53 Vt. 305. 
 
 Merely using a way, open to, and oc- 
 cupied, by, the public for the purpose of 
 getting water for cattle and the family, 
 
 has no tendency to prove that the use is 
 adverse, but permissible. Such occupancy 
 or use, with the public, raises the pre- 
 sumption that it is not adverse; which the 
 defendant must meet and overcome by 
 evidence. O'Neil v. Blodgett, 53 Vt. 
 213. 
 
 Repeated cutting of timber on outlands 
 will not give title by adverse possession. 
 Townsend v. Reeves, 44 N. J. L. 525; 
 nor entirely clearing the land if the tim- 
 ber is allowed to grow again. Parker v. 
 Parker, I Allen (Mass.), 245. 
 
 Merely tearing down part of a fence 
 and walking across the land does not es- 
 tablish sufficient possession. Greene v. 
 Dwyer, 33 Minn. 403; nor does slightly 
 extending a line fence. Carroll v. Gil- 
 lion, 33 Ga. 539. 
 
 The building of a sidewalk on a street 
 adjoining land over which there is such 
 an easement, and maintaining the same, 
 cannot be regarded as an adverse pos- 
 session of such land. Kuecken v. Voltz, 
 no 111. 264. 
 
 One who was accustomed to have a 
 wood pile upon a vacant lot for thirty 
 years, and had buried potatoes upon it 
 for six years, acquired no title to the lot 
 by such a possession. Miller v. Down- 
 ing. 54 N. Y. 631. 
 
 Where all that the defendant had done 
 was to dig sand on and from the land 
 from time to time, and sell the same, 
 his entries thereon for that purpose were 
 but successive acts of trespass against the 
 true owner, if he was not owner himself. 
 Parker v. Wallis, 60 Md. 15; s. c, 45 
 Am. Rep. 703. 
 
 Where a party has color of title to 
 woodland, and uses the land for the pur- 
 pose of obtaining wood for fuel, or fenc- 
 ing for a farm in the neighborhood, un- 
 der a claim of ownership, held to con- 
 stitute possession. Scott v. Delany, 87 
 111. 148. See Clement v. Perry, 34 Iowa, 
 564- 
 
 Going upon wild land, digging, and 
 hunting for a corner and boundary lines, 
 driving cattle on the land, knd employing 
 a man to break in the following spring, 
 are not such going into possession as will 
 set the statute of limitations in operation 
 so as to create a title by virtue of adverse 
 possession. Brown v. Rose, 55 Iowa, 
 734- 
 
 The use of the water of a stream durir^g 
 
 258 
 
Actaal. 
 
 ADVERSE POSSESSION. Cultivation-Inolosures. 
 
 22. Cultivation is evidence of actual possession. It is not neces- 
 sary tliat the degree of cultivation should be other than usual,* 
 but it must be continuous, and not merely an occasional or negli- 
 gent effort.* 
 
 23. Inclosures. — An actual, visible, and exclusive appropriation 
 of land is constituted by the fencing and continued use of it, with- 
 out an actual residing on it.^ The inclosure must be of a sub- 
 stantial nature, not a mere temporary structure. Its character 
 will, however, to some extent, be governed by the nature of the 
 lands inclosed.* 
 
 a period of abundance is not an ad- 
 verse use on which a prescription can 
 be founded. Anaheim Water Co. v. 
 Semi-tropic Water Co., 64 Cal. 185. 
 
 An annual entry to cut timber, feed 
 cattle, hunt or fish, with cultivation of 
 a truck patch in summer, as incidental to 
 other pursuits, will not constitute pos- 
 session. Wheeler ij. Winn, 53 Pa. St. 
 122. See PuUen v. Hopkins, i Lea 
 (Tenn.), 741. 
 
 Cuttinpf a small quantity of timber on 
 two occasions, at an interval of one year 
 between the two, when the land is shown 
 to be good for grazing and farming 
 purposes, and suitable for a homestead, 
 " is not an act so distinct, notorious, and 
 continuous " as will invalidate a convey- 
 ance by the owner of the legal title. 
 Childress v. Calloway, 76 Ala. 130. 
 
 A co-tenant cannot acquire adverse ti- 
 tle by paying taxes, and partial occupa- 
 tion. McQuiddy v. Ware, 67 Mo. 74. 
 
 Erection of cow-pen. ranging of cattle,, 
 and occasionally felling trees, will not 
 constitute adverse possession. Royall v. 
 Lisle, 15 Ga. 545; s. c, 60 Am. Dec. 712. 
 
 1. Copeland v. Murphy, 2 Coldw. 
 (Tenn.) 64. 
 
 See Beaupland v. McKean, 28 Pa. St. 
 124; s. c, 70 Am^ Dec. 115; Pope v. 
 Hanmer, 8 Hun (N. Y.), 265; aff. 74 
 •N. Y. 240. 
 
 If it is not necessary to inclose the 
 land in order to cultivate, the possession 
 will extend to the portion actually culti- 
 vated. Barnes v. Sabron, 10 Nev. 217. 
 See Ege v. Medlar, 82 Pa. St. 86. 
 
 If the party relies upon cultivation and 
 improvement, he must show both; reap- 
 ing alone is not cultivation; nor is the 
 keeping-up oi a fence already made, 
 mowing the grass, and cutting brush, an 
 improvement within the N. Y statute. 
 Doolittle V. Tice, 41 Barb. (N. Y.) 181. 
 
 Tt is only necessary that the land 
 should be used in the ordinary way, 
 Booth V: Small, 25 Iowa, 177. 
 
 2, Going upon wild land, digging, and 
 
 ;i59 
 
 hunting for a corner and boundary lines, 
 driving cattle on the land, and employ- 
 ing' a man to break in the following 
 spring, are not such acts of actual pos- 
 session as will create a title by adverse 
 possession. Brown v. Rose, 55 Iowa, 
 734. See Morris v. Callahan, 105 Mass. 
 129; Wheeler tj. Winn, 53 Pa. St. 122; 
 Overton v. Davisson, i Gratt. (Va.) 211. 
 
 3. Cantagrel v. Von Lupin, 58 Tex. 
 570; Morrison v. Kelly, 22 111. 610. See 
 Coleman v. Billings, 8g 111. 189; Schnei- 
 der V. Botsch, 90 111. 577; Bristol v. 
 Carroll Co., 95 111. 84; Mooney v. Coo- 
 lidge, 30 Ark. 655; Clark v. Potter, 32 
 Ohio St. 49. 1 
 
 Swettenham v. Leary, 18 Hun (N. Y.), 
 284; Pouthmand v. McLaughlin, 24 N. 
 J. Eq. 181. Compare Martin v. Gudd, 
 81 111. 488; Sloan V. Martin, 33 Tex. 
 418; Humphries v. Huffman, 33 Ohio 
 St. 395. 
 
 "The party who enters without color 
 of title, and who relies on adverse pos- 
 session only as a defence against a legal 
 title, must show a -substantial inclosure, 
 an actual occupancy, a pedis possessio, 
 which is definite, positive, and notorious, 
 to countervail such legal title." Hum- 
 phries V. Huffman, 33 Ohio St. 403. 
 See Jackson v. Shoemaker, 2 Johns. 
 (N. Y.) 234; Doe V. Campbell, 10 Johns. 
 (N. Y.) 477; Jackson v. Woodruff, I 
 Cowen (N. Y.), 276; s. c, 13 Am. Dec. 
 525; Bristol V. Carroll Co., 95 111. 93. 
 
 In Clark t/. Potter. 32 Ohio St. 49, the 
 court said: "A continued residence on 
 the land is not necessary if it has been 
 inclosed and used in such manner as to 
 give publicity to the possession." 
 
 4. Smith II. Hosmer, 7 N. H. 436; s. c, 
 28 Am. Dec. 354; Hale v. Glidden, 10 
 N. H. 397; Stevens v. HoUister, 18 Vt. 
 294; s. c, 46 Am. Dec. 154; Kennebec 
 Purchase v. Springer, 4 Mass. 416; s. c, 
 3 Am. Dec. 227; Coburn v. Hollis, 3 
 Mete. (Mass.) 125; Slater v. Jepherson, 
 6 Cush. (Mass.) 129; Bates v. Norcross, 
 14 Pick. (Mass.) 224. See 17 Pick. 14, 
 
.Actual. 
 
 ADVERSE POSSESSION. 
 
 Inclosares. 
 
 In some of the States the statute requires that the land claimed 
 must be protected by a substantial inclosure,i the entire tract 
 
 s. c, 28 Am. Dec. 271; Parker v. Parker, 
 I Allen (Mass.), 245; Stevens v. Taft, 11 
 Grav (Mass.), 35; Jackson v. Schoon- 
 mak'er, 2 Johns. (N. Y.) 230; Smith v. 
 Burtis, 6 Johns. (N. Y.) 197; s. c, 5 Am. 
 Dec. 218; Lane v. Gould, 10 Barb. (N. 
 Y.) 254; O'Hara v. Richardson, 46 Pa. 
 St. 391; Slice V. Derrick, 2 Rich. (S. Car.) 
 
 .627; Smith V. Mitchel, I A. K. Marsh 
 (Ky.), 207; Hutton v. Schumaker. 21 Cal. 
 
 .453; Borel V. Rollins, 30 Cal. 408. 
 
 The inclosure need not be by an arti- 
 ficial fence. Baker v. Van Volkenburg, 
 
 •29 Barb. (N. Y.) 319. See Teed ij. Hal- 
 stead, 5 Cow. (N. Y.) 216. 
 
 It appeared that fences on the sides of 
 
 -defendant's premises, extending across 
 the strip in question to or near low-water 
 mark, had been maintained by him and 
 his grantors for more than twenty years, 
 those portions across the beach being 
 taken away in winter to prevent their 
 being carried away by the ice and tides; 
 there was no fence along the cliff, the 
 land on that side being open to the sea. 
 Held, that the evidence was sufficient to 
 
 -authorize the submission to the jury of 
 the question as to whether there was a 
 substantial inclosure within the meaning 
 
 -of the statute. Trustees v. Kirk, 84 N. 
 Y. 215; s. c, 38 Am. Rep. 505. In 
 this case the court said: "The require- 
 ment that the premises shall be protected 
 by a substantial inclosure, if construed 
 to require a continuous, uninterrupted 
 inclosure for twenty years, would in 
 many cases make it impossible to ac- 
 quire title by adverse possession founded 
 
 •upon that provision. Upon such a con- 
 struction, if fences were carried away by 
 floods or destroyed by fire, or taken 
 down in the winter for the accommoda- 
 tion of travel, the adverse possession 
 would cease, although they were restored 
 as soon as circumstances permitted. It 
 is well understood that the bottom-lands 
 on some parts of the Mohawk River are 
 annually overflowed, and fences are re- 
 moved to prevent them from being car- 
 ried away by the fiood. It cannot, we 
 think, be claimed that the temporary re- 
 moval of fences for this purpose defeats 
 an adverse possession under the provi- 
 sion of the statute in respect to inclos- 
 ure. In this case the land was left un- 
 inclosed on the side toward the sea. 
 The sea was a natural barrier, as much 
 ,so as a mountain or a river or a ledge of 
 rocks ; and the sea, with the lateral fences 
 -when maintained, constituted, we think. 
 
 a substantial inclosure within the mean- 
 ing of the statute. The removal of the 
 fences during the winter was to protect 
 them from being swept away by the ice 
 and tides. If they had not been re- 
 moved, but had been left to be carried 
 away each winter by the sea, the defend- 
 ant could, we think, have replaced them 
 in the spring, and would not have lost 
 his right under the statute. By the vol- 
 untary removal of the fences he simply 
 anticipated the action of the elements; 
 and having restored them when the dan- 
 ger was passed, and maintained them 
 during the season when the use of the 
 beach for taking sea-weed was practica- 
 ble, the purposes of notice, upon which 
 the statute proceeds, were met." See 
 St. Louis V. Gorman, 29 Mo. 593; Brum- 
 agin V. Bradshaw, 39 Cal. 24. 
 
 A plot of woodland was fenced on two 
 sides, one of the other sides being an un- 
 fenced highway, and the fourth indicated 
 only by marked trees. Held, not such 
 occupancy as constituted adverse posses- 
 sion. Pope V. Haumer, 8 Hun (N. Y.), 
 265; 74 N. Y. 24. 
 
 A fence on three sides will not be suffi- 
 cient. Morrison v. Chapin, 97 Mass. 72. 
 Compare Kerr v. Hitt, 75 111. 51. 
 
 The fences must be substantial, a mere 
 brush fence, or one macje by felled trees 
 lapping upon one another is not suffi- 
 cient. Hale V. Gliddon, 10 N. H. 397; 
 Jackson v. Schoonmaker, 2 Johns. (N.Y.) 
 229; Coburn v. Hollis, 3 Mete. (Mass.) 
 125; Parker v. Parker, i Allen (Mass.), 
 245; Slater v. Jepherson, 6 Cush. (Mass.) 
 129. 
 
 The fences must be erected by the par- 
 ty claiming adversely. Doolittle v, Tice, 
 41 Barb. (N. Y,) 181. 
 
 The inclosure must be for the purpose 
 of marking the boundaries, Soule v. 
 Barlow, 48 Vt. 132. 
 
 The fence of an adjoining owner, if 
 on the boundary line, may be sufficient. 
 Doolittle V. Tice. 41 Barb. (N. Y.) 181. 
 
 An extensive inclosure, which includes 
 tracts also held adversely, also lands 
 which there is no intention to claim, is 
 not an adverse holding of a specific tract 
 within such general inclosure. Walsh 
 ■V. Hill, 41 Cal. 571; Smith's L. C. 717 et 
 seg. 
 
 1. Pope V. Haumer. 8 Hun (N. Y.), 
 265; 74 N. Y. 246. Soule V Barlow, 49 
 Vt. 329; Walsh V. Hill, 41 Cal. 571; Rus- 
 sell ii. Davis, 38 Conn. 562. 
 
 In Jackson v, Schoonmaker, 2 Johns. 
 
 360 
 
Actual, 
 
 ADVERSE FOSSESSIOy. 
 
 Visible— Exclusive, 
 
 claimed must be inclosed.^ Even where the statute does not re- 
 quire the erection of a fence, its construction with intent to 
 claim title is sufficient evidence of disseisin ;^ but the mere fact 
 of building a fence, if there is no intention to claim adversely con- 
 nected with the erection of the fence, will not constitute evi- 
 dence of possession or occupation. ^ 
 
 24. Taxes. — A stranger will not acquire title merely by payment 
 of taxes on unoccupied land without actual possession ; possession 
 is indispensable.* (See COLOR OF TITLE, infra?) 
 
 25. Possession must be Visible, Notorious, and Exclusive. — These 
 constitute qualities which chiefly distinguish a disseisin from a tres- 
 pass, and they unite to give rise to two modes in which a disseisin 
 
 (N. Y.), 229, it was held that a posses- 
 sion fence, which was made by tree^s 
 felled and lapping one upon another, did 
 not constitute a sufficient adverse posses- 
 sion to toll the right of entry of the true 
 owner. The court said there must be 
 a real and substantial inclosure, an ac- 
 tual occupancy, a^possessiopedis, which is 
 definite, positive, and notorious, to con- 
 stitute an adverse possession, when 
 that is the only defence, and is to coun- 
 tervail a legal title. The object of the 
 statute defining the acts essential to con- 
 stitute an adverse possession is, that the 
 real owner may, by unequivocal acts of 
 the disseisor, have notice of the hostile 
 claim and be thereby called upon to as- 
 sert his legal title. In this case there 
 was no"actual inclosure by fences of the 
 land in question. But tftis is not indis- 
 pensable in every case. In Jackson v. 
 Halstead, 5 Cow. (N. Y.) 216, title to 
 land fronting on the Delaware river was 
 claimed by adverse possession. Fences 
 had been erected, extending to a point 
 about a rod from the river, leaving some 
 of the disputed ground uninclosed. But 
 it was proved that the fence at this place 
 was as near the river as the wash of the 
 floods and the make of the ground would 
 permit. This was held to be a sufficient 
 inclosure. Wood worth, J., said that it 
 would be too strict to require the fence 
 to be placed on the very margin of the 
 river, where it would be liable to be swept 
 away by the rise of water, and not with- 
 in the reason of the rule defining what 
 shall constitute an adverse possession. 
 The learned judge further said that a river 
 or mountain, or a ledge of rocks, on one 
 side, forming a natural barrier, the other 
 sides being inclosed, would, with claim 
 of title, constitute an adverse possession. 
 (See Becker v. Van Valkenburgh, 29 
 Barb. (N. Y.) 319. See Pope v. Hau- 
 mer, 74 N. Y. 240. 
 
 1. Armstrong v. Risteau, 5 Md. 256; 
 
 s. c, 59 Am. Dec. 115. , See St. Louis z*. 
 Gorman, 29 Mo. 593; Trustees w. Kirk, 
 84 N. Y. 215; s. c, 38 Am. Rep. 505; 
 Dennet v. Crocker, 8 Me. 239; Morri- 
 son V. Chapin, 97 Mass. 72. 
 
 2. Cantagrel v. Von Lupin, 58 Tex, 
 570; Hank v. Sensernan, 6 S. & R. (Pa.) 
 21; Munshower v. Patton, 10 S. & R. 
 (Pa) 334; s. c, 13 Am. Dec. 678. 
 
 The adverse possession must have 
 been actual by fences, inclosures or build- 
 ings, where the land is capable of such 
 possession, and where it is not, such fact 
 must be averred in pleading. Such acts 
 as cutting timber, grazing cattle, erecting: 
 hog-pens, are illusory and insufficient.. 
 Hicks V. Fredericks, 9 Lea (Tenn,), 491',. 
 PuUen V. Hopkins, i Lea (Tenn.), 741;, 
 Cass V. Richardson, 2 Coldw. (Tenn.) 28, 
 
 Some cases hold that no inclosure is 
 necessary; but that open, unequivocal 
 acts of ownership are sufficient. Bright 
 V. Stevens, i Houst. (Del.) 240; Brooks 
 V. Bruyn, 24 111. 392; Langworthyz/. My- 
 ers, 4 Iowa, 18; Booth V. Small, 25 Iowa, 
 117. 
 
 3. Soule V. Barlow, 49 Vt. 529: Allen 
 V. Holton, 20 Pick. (Mass.) 458; Russell 
 V. Davis, 38 Conn. 362; Carroll v. Gil- 
 lion, 33 Ga. 539. 
 
 4. ^ear Valley Coal Co. v. Dewart, 95 
 Pa. St. 72; Sorber v. Willing, 10 Watts 
 (Pa.), 141; Miller v. Long Island R. Co., 
 71 N. Y. 380; Hurlbut v. Bradford, log^ 
 111. 397; Paine v. Hutchins, 49 Vt. 314; 
 Malloy V. Bowden, 86 N. Car. 251; Ful- 
 len V. Hopkins, i Lea (Tenn.), 741. 
 
 The person paying the taxes must in 
 some way be interested in or connected 
 with the claim and color of title, A pay- 
 ment by a stranger to the ciaim and color 
 of title does not answer the requirements 
 of the statute. Hurlbut v. Bradford. 109 
 III. 397. ' 
 
 Payment of taxes is not occupancy. 
 It only shows claim of title. Paine v. 
 Hutchins, 49 Vt. 314. 
 
 I C. of L.— 18 
 
 261 
 
Visible. 
 
 ADVERSE FOSSESSION. 
 
 Exclusive. 
 
 may be effected, (i) Where the entry is' not under a written title 
 or paper, but merely under a claim of right or ownership, the ouster 
 extends no further than the inclosure of the disseisor. (2) But 
 if one enters under a color of title, by deed or other written docu- 
 ment, and occupies and improves the land, he acquires, in law, 
 actual possession to the extent of the boundaries contained in the 
 writing, and this though the title conveyed to him is good for 
 nothing. To give that effect to his possession of a part of the 
 land, the possession must be exclusive, for if the true owner is in 
 actual possession of any part of the land the disseisor will be con- 
 fined to his inclosure or actual possession, and he will not be consid- 
 ered as in possession to the boundaries of his deed or writing. In 
 any case, however, the possession, to effect an ouster of the owner, 
 must in its nature possess such 'notoriety that the owner may be 
 presumed to have notice of it, and of its extent. It must, in fact, 
 be open, visible, notorious, and exclusive.^ 
 
 1. Atherton v. Johnson, 2 N. H. 34; 
 Stevens v. HolUster, 18 Vt. 294; s. c, 
 
 46 Am. Dec. 154; Soule v. Barlow, 49 
 Vt. 329; Russell V. Maloney, 39 Vt. 583. 
 Proprietors v. Call, i Mass. 483; Pray 
 V. Pierce, 7 Mass. 381; s. c, 5 Am. 
 Dec. 59; Cook V, Babcock, 11 Cush. 
 (Mass.) 210; Thomas v. Marshfield, 13 
 Pick. (Mass.) 250; Samuel v. Barrow- 
 scale, 104 Mass. 207; French v. Pearce, 
 8 Conn. 439; a. c, 21 Am. Dec. 680; 
 School Dist. V. Lynch, 33 Conn. 330; 
 Clark ». Gilbert, 39 Conn. 97; Tracy v. 
 Norwich, etc., R.Co., 39 Conn. 382; Smith 
 V. Burtis, .6 Johns. (N. Y.) 197; s. c, 5 
 Am. Dec. 218; Doe v. Campbell, 10 
 Johns. (N. Y.) 477; Cahill v. Palmer, 45 
 N. Y. 484; Saxton v. Hunt, 20 N. J. L. 
 487; Hawk V. Senseman, 6 S. & R. (Pa.) 
 21; Calhoun v. Cook, 9 Pa. St. 226; Ste- 
 vens V. Leach, 19 Pa. St. 265; Bartholo- 
 mew V. Edwards, i Houst. (Del.) 17; 
 Malloy V. Bowden. 86 N. Car. 251; 
 Crispin v. Hannavan, 50 Mo. 536; Tamm 
 V. Kellogg, 49 Mo. 118; Kellogg v. Mul- 
 len, 39 Mo. 174; Key v. Jennings, 66 Mo. 
 356; Ekey v. Inge, 87 Mo. 493; Fugate 
 V. Pierce, 49 Mo. 447; Wall v. Shindler, 
 
 47 Mo. 282; Bowman v. Lee, 48 Mo. 335; 
 Pike V. Robertson, 79 Mo. 615; Beatty 
 V. Mason, 30 Md. 409; Armstrong v. 
 Risteau, 5 Md. 256; s. c, 59 Am. Dec. 
 115; Creekmur v. Creekmur, 75 Va. 430; 
 Turpin v. Saunders, 32 Gratt. (Va.) 27; 
 Core V. Faupel, 24 W. Va. 238; Yelver- 
 ton V. Steele, 40 Mich. 538; Humphries 
 V. Huffman, 33 Ohio St. 395; Peterson 
 V. McCullough, 50 Ind. 35; Horbach w. 
 Miller, 4 Neb. 31; Turney v. Chamber- 
 lain, 15 111. 271; Booth V. Small, 25 Iowa, 
 177; De Long v. Mulcher, 47 Iowa, 445; 
 Edgerton v. Bird, 6 Wis. 527; s. c, 70 
 
 Am. Dec. 473; Pepper v. O'Dowd, 39 
 Wis. 538; Furlong v. Garrett, 44 Wis. 
 Ill; Washburne v. Cutter, 17 Minn. 361; 
 Carroll v. Gillion,' 33 Ga. 539; Denham 
 V. Holeman, 26 Ga. 182; s. c. 71 Am. 
 Dec. 193; Virgin v. Land, 32 Ga. 572; 
 Whittington v. Wright, 9 Ga. 23; Royall 
 V. Lisle, 15 Ga. 545; s. c, 60 Am. Dec. 
 712; Alexander v. Polk, 39 Miss. 737; 
 Wilson V. Williams, 52 Miss. 488; Dixon 
 V. Cook, 47 Miss. 220; Benje v. Creagh, 
 21 Ala. 151; Brown v. Cockerell, 33 Ala. 
 47; Ringo V. Woodruff, 43 Ark. '469; 
 Satterwhite v. Rosser, 61 Tex. 166; Gil- 
 lespie V. Jones, 26 Tex. 343; Ward v. 
 Drouhett, 44 Tex. 370; Bracken w. Jones, 
 63 Tex. 184; Thompson v. Pioche, 44 
 Cal 508; Unger v. Mooney, 63 Cal. 586; 
 49 Am. Rep. 100; Armstrong v. Morrill, 
 14 Wall. (U. S.) 120. 
 
 " So long as the possessor declares 
 that he holds in subordination to the bet- 
 ter title, the possession will be regarded 
 as held by consent; nor will a continued 
 possession after such declarations avail 
 to mature a title under the statute of 
 limitations, until the party has changed 
 the character of his possession either by 
 express declarations or by the exercise 
 of acts of ownership inconsistent with a. 
 subordinate character." Angell on Lim. 
 
 §354- 
 
 Two distinct and independent seisins 
 of the same land cannot exist at the 
 same time. Putnam Free School v. 
 Fisher, 34 Me. 172. 
 
 The claim of title which must enter 
 into and is the characteristic of an ad- 
 verse possession, has in it no element of 
 stealthiness, nor is it elastic or flexible. 
 Potts V. Coleman, 67 Ala. 221; Thomp- 
 son V. Pioche, 44 Cal. 508. 
 
 262 
 
Visible. 
 
 ADVERSE POSSESSION. 
 
 Exclusive. 
 
 What is an adverse and exclusive possession, and what is an in- 
 terruption of such possession, depend very much upon the char- 
 acter of the land, and the purposes to which it is adapted and for 
 which it is used. The adverse possession of an outlying lot of 
 small value, remote from the dwellings of people, suitable for pas- 
 turing or for the growth of wood, or for some other purpose of 
 husbandry, is to be proved by evidence very different from that 
 which establishes the exclusive occupation of a residence or a shop 
 or storehouse within the limits of a thickly settled business popu- 
 lation. The rule of law is the same in both cases; but the evi- 
 dence necessary to prove the fact is very different. In either case 
 the question is, Has the adverse possession, considering the na- 
 ture, situation, and uses of the land, been exclusive and con- 
 tinuous ?* 
 
 "The statute was not made to serve 
 the purpose of artifice and trick." Sailor 
 31. Hertzogg, 2 Pa. St. 185; Bracken v. 
 Jones, 63 Tex. 184. 
 
 So where a party held homestead prop- 
 «rty under recorded leases from plain- 
 tiff's husband, which leases had not ex- 
 pired, or, if they had expired, had done 
 so within a year, cannot acquire such a 
 right as will set the statute of limitations 
 in motion from a secret deed by said 
 husband, which deed was unrecorded, 
 and of which plaintiff had no notice; an 
 «ntry under such a deed not being suffi- 
 ciently open to give the owner notice of 
 the hostile claim and possession. Maud- 
 lin V. Cox, 7 Pac. Repr. (Cal.) 804. 
 
 It is the visible and adverse possession 
 tfith an intent to possess that' constitutes 
 its adverse character, and not the remote 
 motives or purposes of the occupant. 
 Humphries v. Huffman, 33 Ohio St. 395; 
 French u. Pearce, 8 Conn. 430; ». t., 21 
 Am. Dec. 680. 
 
 1. Bowen v. Guild, 130 Mass. 121; 
 Humphries v. Huffman, 33 Ohio St. 395; 
 Bell V. Denson, 56 Ala. 449; Brumagim 
 -v. Bradshaw, 39 Cal. 24: Mooney v. 
 Cooledge, 30 Ark. 655; Dorr v. School 
 Dist., 40 Ark. 243; Draper v. Shoot, 25 
 Mo. 197; s. c, 69 Am. Dec. 462; Leeper j;. 
 Baker, 68 Mo. 407; Clement v Perry, 34 
 Iowa, 567; Ewing v. Burnet, 11 Pet. (U. 
 S.) 41. 
 
 The jury may take into consideration 
 the nature of the land. Turner ».Hall, 60 
 Mo. 271. 
 
 As regards wild lands it is not enough 
 to pay tlie taxes, and occasionally look at 
 and show them to others as one's own. 
 Brown v. Rose, 48 Iowa, 231. 
 
 Neither actual possession, cultivation, 
 tior residence is necessary to constitute 
 adverse possession where the property is 
 
 appropriated to the use for which it was 
 designed and the only use of which it is 
 susceptible. Dorr v. School Dist., 40 
 Ark. 237. 
 
 Purchasers made entry upon the land 
 under their deed, marked out their claim 
 by survey and stakes, and upon the por- 
 tion in litigation built a wharf on which 
 to land lightwood, etc., and erected a 
 boat-shed, and used both wharf and shed. 
 Held, to be such acts of possession under 
 color of title as would ripen into title by 
 possession. Congdon v. Morgan, 14 S. 
 Car. 587. 
 
 Surveying a part of the land and paying 
 some taxes do not constitute possession. 
 Thompson v. Burhaus, 61 N. Y. 52. See 
 Beatty v. Mason, 30 Md. 409; Oatman v. 
 Fowler, 45 Ala. 482. 
 
 The cutting of timber on uninclosed 
 wild lands, without anything to define the 
 extent of the alleged claim, is not alone 
 such evidence of ownershipas to amount 
 lo possession adverse to the true owner. 
 It could not, therefore, operate as a dis- 
 seisin against him, nor aid in any manner 
 in supplementing the time necessary to 
 bar the rights of the holder of the legal 
 title. Childress v. Calloway, 76 Ala. 128; 
 Clements v. Hays. 76 Ala. 280; Burks v. 
 Mitchell, 78 Ala. 61; Parker v. Parker, I 
 Allen (Mass.), 245; Hale v. Glidden, 10 
 N. H. 397. 
 
 The open and exclusive use of real 
 property, for the purpose to which it is 
 ordinarily fit or adapted, accompanied 
 with a claim of ownership by the occu- 
 pant, constitutes adverse possession, and 
 the erection of a fence or other artificial 
 boundary, to indicate the limits of such 
 possession, is not essential thereto. Zei- 
 lin V. Rogers, 21 Fed. Repr. 103. 
 
 Where a person under color of title en- 
 larged a boarding house, built docks, cut 
 
 363 
 
Visible-Exclusive. ADVERSE POSSESSION. 
 
 Notice. 
 
 26. Notice. — The adverse character of the possession must be 
 rrTanifested to the owner. The owner must be notified, in some 
 way, that the possession is hostile to his claim, or the statute does 
 not operate on his right. ^ 
 
 the hay, and paid taxes, held, that these 
 acts were sufficiently open and notorious 
 to constitute with him claim of being ex- 
 clusive owner, a foundation of adverse 
 title. Foullce v. Bond, 41 N. J. L. 527. 
 
 Where a party erects upon a city lot, to 
 which he claims title, a substantial and 
 permanent brick building, which he claims 
 to own throughout its entire extent, the 
 circumstances attending his act amount 
 to such a claim of title to the land upon 
 which the building is erected, at least to 
 the centre of the walls, as may, by lapse 
 of time, ripen into a title. Crapo ii. Cam- 
 eron, 6i Iowa, 447. 
 
 As' against the true owner, a plaintiff 
 in ejectment, claiming title founded upon 
 a written instrument and a judgment or 
 decree of a court, to be deemed in ad- 
 verse possession, must have usually cul- 
 tivated or improved it, or have protected 
 it by a substantial inclosure, or, if not in- 
 . closed, have used it for the supply of 
 fuel, or of fencing timber for the purposes 
 of husbandry, or for the ordinary use of 
 the occupant. Simpson v. Creswell, 18 
 Fla. 2g. 
 
 1. Ungerw. Mooney, 63 Cal. 586; s. c, 
 49 Am. Rep. 100 ; Miller v. Myles, 46 
 Cal. 539; Thompson v. Pioche, 44 Cal. 
 508; Soule V. Barlow, 49 Vt. 329; Wing 
 V. Hall, 47 Vt. 182; Proprietors v. Call, 
 
 I Mass. 483; Pray v. Pierce, 7 Mass. 381; 
 s. c, 5 Am. Dec. 59; Cook v. Babcock, 
 
 II Cush. (Mass.) 210; Samuel v. Borrow- 
 scale, 104 Mass. 207; Clark v. Gilbert, 
 39 Conn. 97; School Dist. v. Lynch, 33 
 Conn. 334; Trustees v. Kirk, 84 N. Y. 
 215; s. c, 38 Am. Rep. 505; Culver v. 
 Rhodes, 87 N. Y. 354; Foulke v. Bond, 
 41 N. J, L. 527; Abeli V. Harris, 11 G. & 
 J. (Md.) 371; Turpin v. Saunders, 32 
 Gratt. (Va.) 27; Moore v. Thompson, 69 
 N. Car. 121; Virgin v. Lard, 32 Ga. 572; 
 Dixon V. Cook, 47 Miss. 220; Wilson v. 
 Williams, 52 Miss. 488; Herbert %>. Hau- 
 rick, 16 Ala. 581; Nat. M. Co. v. Powers, 
 3 Mont. 344; Wilson v. Henry, 35 Wis. 
 241; Lynda v. Williams, 68 Mo. 370; 
 Crispin v. Hannavan, 50 Mo. 536 ; 
 Scruggs V. Scruggs, 43 Mo. 142; Kay v. 
 Jennings, 66 Mo. 356; ^usick v. Barney, 
 49 Mo. 458; Fulgate v. Pierce, 49 Mo. 
 447 ; Ringo v. Woodruff, 43 Ark. 469; 
 Portis V. Hill, 3 Tex. 278; Campau v. 
 Dubois, 39 Mich. 274. 
 
 The hostile occupation may be so no- 
 
 torious that the legal owner will be pre- 
 sumed to have notice of it. Wilson v. 
 Williams, 52 Miss. 488 ; Alexander v. 
 Polk, 39 Miss. 737; Samuel u. Barrow- 
 scale, 104 Mass. 207; Virgin v. Land, 32 
 Ga. 572; Royall v. Lisle, 15 Ga. 545; s. 
 c, 60 Am. Dec. 712; Herbert!'. Haurick, 
 16 Ala. 581 ;. Key v. Jennings, 66 Mo. 
 356 ; Musick v. Barney, 49 Mo. 458; 
 Scruggs V. Scruggs, 43 Mo. 142; Fulgate 
 V. Pierce, 49 Mo. 441 ; Moore v. Thomp- 
 son, 69 N. Car. 120. 
 
 The actual possession of land with the 
 exercise of the usual acts of ownership 
 and dominion over it, operate in law as 
 constructive notice to all the world of the 
 claim of title under which the possessor 
 holds. Talbert u. Singleton, 42 Cal. 395. 
 
 Whether open occupancy operates no- 
 tice to the other party that such occupan- 
 cy is hostile, depends on the nature and 
 circumstances of such occupancy. Plimp- 
 ton V. Converse, 42 Vt. 712; s. c, 44 Vl 
 158; Wing V. Hall, 47 Vt. 182. 
 
 Where the party who sets up limitation 
 entered under a recorded deed, which on 
 its face discloses a conflict and assumes 
 to convey title to the land occupied, the 
 true owner, whose land is thus held ad- 
 versely, is notified of the adverse claim. 
 Bracken v. Jones, 63 Tex. 184. 
 
 If the hostile character of Che possession 
 is so openly manifested that his observa- 
 tion as a man reasonably careful of his 
 interests would be sufficient to discover 
 it, he will be deemed to have notice. 
 Thus, where one of two tenants in com- 
 mon conveys to a third person by deed 
 purporting to convey the whole land, and 
 the deed is recorded by the grantee, who 
 enters under it, such entry is hostile in 
 its nature, and the mere fact of posses- 
 sion by a stranger is enough to put him 
 on inquiry, and charge him with notice. 
 So, the making of valuable improvements, 
 paying the taxes upon the land, and re- 
 ceiving the rents and profits without ac- 
 counting or offering to accoKnt, are cir- 
 cumstances indicating an adverse hold- 
 ing, and their effect upon the co-tenant is 
 the same as if notice were directly com- 
 municated to him. The means of knowl- 
 edge being furnished by the open and 
 notorious character of the possession, he 
 is chargeable with actual notice, linger 
 V. Mooney, 63 Cal. 586. 
 
 When one takes a conveyance of land. 
 
 364 
 
Visible-Exclusive. ADVERSE POSSESSION. 
 
 Continuous. 
 
 27. Possession must be Continuous. — The possession must, for all 
 
 in the actual, open, notorious, and hostile 
 possession of another claiming to hold 
 adversely to the grantor, he takes it with 
 notice of all the rights of the possessor 
 that he would have learned if he had duly 
 and fully inquired of the person in pos- 
 session. It is not enough to inquire of 
 the grantor; the rule is inflexible that 
 such inquiry must be made of the person 
 holding adversely to the grantor. Can- 
 field V. Hard, 58 Vt. 217; s. c, 49 Am. 
 Rep. 100. 
 
 The mere fact of signing a deed as an 
 attesting witness does not of itself op- 
 erate as an admission that the witness 
 does not assert an adverse claim to the 
 land conveyed, since he is not required 
 or presumed to know the contents of 
 the instrument when he attests it; but, 
 if it be shown that he did in fact know 
 the contents, the jury may consider 
 it as such admission. Coker v. Fergu- 
 son, 70 Ala. 284. See Miller v. Miller, 
 60 Pa. St. 16. 
 
 Premises adjacent to a railroad were 
 conveyed to plaintiff, ' ' subject to any right 
 of way said railroad may own over the 
 same." The railroad company had previ- 
 ously become entitled to thirty-five feet 
 in width from the centre line of its track 
 as right of way, but there was nothing of 
 record showing the extent of such ease- 
 ment. The railroad was in operation at 
 the time, and a fence had been construct- 
 ed on one side near the track. Held, that 
 the plaintiff being affected with notice of 
 the acquisition of an easement over the 
 premises by the railroad company, could 
 not acquire title to any portion of the 
 right of way by adverse possession. Slo- 
 cumb 1). Chicago, etc., R. Co., 57 Iowa, 
 
 675. 
 
 Building a shed, quarrymg rock, erect- 
 ing a limekiln, cutting wood, etc., are 
 calculated to give notice. Moore v. 
 Thompson, 69 N. Car. 120. 
 
 While the true owner is chargeable 
 with knowledge of the boundaries of his 
 land, he cannot be affected with notice 
 that an adjoining proprietor has en- 
 croached by his fence a few feet over the 
 line for the purpose of acquiring 640 acres 
 of his land under the statute. Bracken 
 V. Jones, 63 Tex. 184. 
 
 The owner of land is chargeable with 
 notice of its locality and boundaries, and 
 the meaning and locality of every settle- 
 ment made upon it by another without 
 his authority. One holding the superior 
 title cannot set up his ignorance of the 
 claim of right under which his land is oc- 
 cupied by an adverse claimant, in person 
 
 or by agent, to defeat limitation. Brown- 
 son V. Scanlan, 59 Tex. 222. 
 
 To make the possession of one tenant 
 in common adverse as against the others, 
 it is not necessary that notice should be 
 given of the adverse intent; but the in- 
 tent must be manifested by outward acts 
 of an unequivocal kind. Abernathie v. 
 Consolidated M. Co., 16 Nev. 260. 
 
 Posting a notice declaring intention to 
 hold the property is insufficient. Lynde 
 V. Williams, 68 Mo. 360. 
 
 The use by a railroad company of its 
 roadbed by running trains, etc., is no- 
 tice. Jefferson ville, etc., R. Co. v. 
 Oyler, 60 Ind. 383. 
 
 One in possession under a deed con- 
 veying a designated portion of a survey 
 by specific metes and bounds cannot in- 
 voke for his protection the statute against 
 the owner of an undivided interest in the 
 same survey, under an older deed from 
 the common vendor, the second pur- 
 chaser having notice of the former deed., 
 Saunders v. Silvey, 55 Tex. 46. 
 
 Possession under a deed duly recorded 
 is constructive notice. Forest v. Jack- 
 son, 56 N. H. 357. 
 
 It is not sufficient that some former 
 deed in his chain of title has been so re- 
 corded. Wimberly v. Bayley, 58 Tex. 
 222. See Cook v. Dennis, 61 Tex. 246. 
 
 Possession of part of one lot embraced 
 in the same deed with other lots will not 
 be extended by construction to the other 
 lots, unless the deed be on record, 
 so as to work a title by prescription; and 
 constructive possession of the unoccu- 
 pied lots will not begin to run until the 
 date of the record. Tritt v. Roberts, 64 
 Ga. 155. See Grimes v. Ragland, 28 Ga. 
 123; Wiley V. Warmoch, 30 Ga. 701; 
 Schultz t/. Lindell,^30 Mo. 310; Thomp- 
 son V. Burhans, 61 N. Y. 52. 
 
 Possession under title bond is suffi- 
 cient to charge a purchaser from the 
 obligor with notice of the obligee's color 
 of title. Spitler». Scofield, 43 Iowa, 571. 
 
 Possession of so much ground (not ad- 
 versely held by another), upon either side 
 of the track, as was reasonably necessary 
 for the convenient use and maintenance 
 of the railway, in the customary mode, 
 was constructive notice, to a subsequent 
 purchaser, of the actual equitable title of 
 the railway. Day v. N. Y. & C. R. Co., 
 20 Am. & Eng. R. R. Cas. 359; s. c, 41 
 Ohio St. 392. 
 
 Actual notice of the assertion of a su- 
 perior title is fatal to the occupant's 
 claim for improvements, and the filing of 
 a bill against him, by the person claim- 
 
 265 
 
Contiiiaou3. 
 
 ADVERSE POSSESSION. 
 
 Continuoiu, 
 
 the time fixed by the statute, be continuously and consistently 
 
 adverse.'- 
 
 ing such superior title, is the most sol- 
 emn and auihoriladve form of notice. 
 Gordon v. Tweedy, 74 Ala. 232; 
 
 In Pike V. Robertson, 79 Mo. 615, the 
 court said: "If the owner visit his land 
 the indications of adverse possession and 
 claim should be so patent that he could 
 not be leceived. In this case, if the 
 owner should have visited this land he 
 might have seen wood cut and rails 
 split and hauled off, pretty good indica- 
 tions of trespass; but he Would have seen 
 no habitation, no inclosures, no fields — 
 nothing indeed to advise him that an 
 adverse claim was set up — that some 
 one was disputing his title." Musick v. 
 Barney, 49 Mo. 458. 
 
 A claimed sixty acres of wild land un- 
 der color of title. He placed the land 
 in care of a neighbor, who cultivated the 
 part cleared, about three-quarters of an 
 acre, and cut timber from the rest of the 
 land. Held, to be such a possession as 
 gave notice of A's claim of title to one 
 who took a mortgage from the holder of 
 the legal title. Wickes v. Lake, 25 Wis. 
 
 71- 
 
 In a wall forming one side of a house 
 belonging to A was a slone with an in- 
 scription stating the wall to be the prop- 
 erty of B, and that the ground eigh- 
 teen feet south from the stone was given 
 to the public for a street. B had as- 
 serted no claim of title for at least thirty 
 years. Held, that the fee of the street 
 remained in B, and that A had not 
 gained a title to the wall by adverse pos- 
 session. The inscription on the stone 
 was sufficient to prevent such adverse 
 possession arising. Phillipson v. Gib- 
 bon, L. R. 6 Ch. 428. 
 
 1. See p 258; n. i. Bracken v. Jones, 
 63 Tex. 184; Satterwhite v. Rosser, 61 
 Tex. 166; Bank v. Hedges, 38 Tex. 614; 
 Horbach v. Miller, 4 Neb. 31; Messer v. 
 Keginniter, 32 Iowa, 312; Sparrow v. 
 Hovey. 44 Mich. 63; Yelverlon v. Steele, 
 40 Mich. 538; Cent. Pac. R. Co. v. 
 Shackelford, 63 Cal. 261; Unger v. 
 Mooney, 63 Cal. 5S6; s. c, 49 Am. Rep. 
 100; SHn Francisco v. Fulde, 37 Cal. 353; 
 Steeple v. Downing, 60 Ind. 478; Thomp- 
 son V. McLaughlin, 66 111. 407; Harrison 
 V. Cachelin. 35 Mo. 77; Wall 7/. Shindler, 
 47 Mo. 282; Lynde v. Williams, 68 Mo. 
 365 ; Bowman v. Lee, 48 Mo. 335; 
 Fugate V. Pierce, 49 Mo. 441 ; Bradley 
 V. West, 60 Mo. 33; Sharps. Johnson, 22 
 Ark. 79; Ringo v. Woodruff, 43 Ark. 469; 
 Williams V. Wallace, 78 N. Car. 354; 
 Mallo'y V. Bruden, 86 N. Car. 251; 
 
 Andrews v. Mulford, i Hayw. (N. Car.) 
 320; Park V. Cochran, i Hayw. (N. Car.) 
 180; Taylor v. Burnside, i Gratt. (Va.) 
 165; Creekmur v. Creekmur, 75 Va. 430; 
 Core V. Faupel, 24 W. Va. 238; Ringgoltl 
 V. Malott, I H. & J. (Md.) 316; Hall v. 
 Gittings, 2 H. & J. (Md.) 112; Bell v. 
 Denson, 56 Ala. 444; Beard v. Ryan, 78- 
 Ala. 37; Riggs v. Fuller, 54 Ala. 141; 
 Laramore v. Minish, 43 Ga. 282; Joiner 
 V. Borders, 32 Ga. 239; Morrison v. 
 Hayes, 19 Ga. 294; Tegarden v. Carpen- 
 ter, 36 Miss. 404; Nixon v. Porter, 38- 
 Miss. 401; Wipklifie v. Ensor, 9 B. Mon. 
 (Ky.) 253; Morse v. Williams, 62 Me- 
 445; Soule v. Barlow, 49 Vt. 329; Mel- 
 vin V. Proprietors, 5 Mete. (Mass.) 5; s- ' 
 c, 28 Am. Dec. 384; Smith v. Chapin,. 
 31 Conn. 531; Jackson v. Schoonmaker, 
 2 Johns. (N. Y.) 230; Bliss v. Johnson, 
 94 N. Y. 235; Wheeler v. Spinola, 54 N- 
 Y. 377; Johnston v. Irwin, 3 S. & R.. 
 (Pa.) 291; Moore v. CoUishaw, 10 Pa- 
 St. 224; Rogers u. Benlow, 10 S. & R, 
 (Pa.) 303; Hoey v. Furman, i Pa. St. 
 296; Groft V. Weakland, 34 Pa. St. 308;. 
 Christy 7/. Alford, 17 How. (U. S.)6oi;. 
 Armstrong w. Morrell, 14 Wall. (U. S.> 
 120; Read v. Allen, 63 Tex. 154; Mc- 
 MuUin V. Erwin, 58 Ga. 427. 
 
 The absence of the defendant, or the 
 absence of any vendor under whom he 
 claims, from the State, has no effect to 
 prevent the running of the statute in his 
 favor. It is the possession of the land 
 by himself or tenants, not his personal 
 presence, which avails him. Hunter v. 
 Nichols, 55 Tex. 217. 
 
 An abandonment of the premises, al- 
 though the intent to shortly return may- 
 exist, will stop the running ol the statute- 
 Susquehanna, etc., R. Co. v. Quick, 65 
 Pa. St. 189. See Interruption of 
 Possession, post, p. 271. 
 
 The possession cannot be changed 
 from one part of a tract to another with- 
 out breaking the continuity. Griffith v. 
 Schwenderman, 27 Mo. 412. 
 
 When the possession is once establish- 
 ed, it will be presumed, in the absence of 
 evidence to the contrary, to have contin- 
 ued. Marston v. Rovve, 43 Ala. 271. 
 
 Where acts of ownership consisted in. 
 the payment of taxes on the land and 
 the employment of agents in respect to^ 
 it, in the absence of actual possession on 
 the part of the alleged owner, held, error 
 to permit the jury to consider such acts 
 in passing upon the question of continu- 
 ous possession required to perfect a col- 
 orable title under a deed. Here the 
 
 266 
 
Continuous. 
 
 ADVERSE POSSESSION. 
 
 Continuous. 
 
 Though the possession be continuous, if it is held for a portion 
 of the time in recognized subordination to the true owner, and for 
 another time in repudiation of his claim to the land, the two 
 
 jury should have been instructed that 
 no such continuous possession was shown 
 by the plaintiff. Ruliin v. Overby, 88 
 N. Car. 369. 
 
 A vendor of land by removing from 
 the State cannot stop the running of the 
 statute of limitations in favor of his ven- 
 dee. ZoU V. Carnahan, 83 Mo. 35. But 
 some authorities hold that the limitation 
 does not apply to a proceeding in rem, but 
 only to actions hi personam. Anderson 
 V. Baxter, 4 Oregon, 105: Eubanks v. 
 Leveridge, 4 Sawy. (U. S.) 274. Compare 
 Whalley I/. Eldridge, 24 Minn. 358; Em- 
 ory V. Keighan, 94 111. 543. 
 
 Computation of Time. — Only the time 
 which elapsed before the commencement 
 of the suit can be considered. Beard v. 
 Ryan, 78 Ala. 37. 
 
 In computing time to ascertain whether 
 an action is barred by limitations, the 
 day on which the right of action accrued 
 must be included, and the day of issuing 
 the summons excluded. Shinn v. Tucker, 
 33 Ark. 421. See Gray v. Givens, 26 Mo. 
 291; Ely V. Wynne, 22 Gratt. 224. 
 
 The time must be definitely stated, 
 evidence that it began " in the summer" 
 of the year that the statute began to run 
 and ended on some indefinite day in the 
 year when the statutory period termi- 
 nated, is not sufficient. Grosholtz v. 
 Newman, 21 Wall. (U. S.) 481. 
 
 When the title of a party in possession 
 of lands has become fixed and absolute 
 by reason of the statute of limitations, 
 it is not affected by a subsequent statute 
 extending the time of limitation. Shriver 
 V. Shriver, 86 N. Y. 575. 
 
 The ten years' possession need not be 
 ^he ten years next before the date of the 
 action of ejectment. Allen u. Mansfield, 
 82 Mo. 688; Unger ii. Mooney, 63 Cal. 
 586; s. t., 49 Am. Rep. 100. 
 
 A tax deed will run from date of sale. 
 Shawler v. Johnson, 52 Iowa, 473. See 
 Clark V. Thompson, 37 Iowa, 536; Hin- 
 trager v. Hennessy, 46 Iowa, 600; Bar- 
 rett V. Love. 48 Iowa, 103. 
 
 A widow has no estate in the land un- 
 til her dower is assigned, but a mere 
 right of occupancy. Her possession is 
 not hostile to the heir's title, and she 
 has nothing that she can convey to a 
 stranger to the title, and is not to be es- 
 timated in computing time. Padgett v. 
 Norman, 44 Ark. 490. See Carnall v. 
 Wilson, 21 Ark. 62; s. c, 76 Am. Dec. 
 351; Burks V. Osborn, 9 B. Mon. (Ky.) 
 
 579; Halsey v. Dodd, i Halst. (N. J.) 
 367; Weaver v. Crenshaw, 6 Ala. 873; 18 
 lb. 810. 
 
 In the case of a mortgage the time 
 will begin to run from the time of condi- 
 tion broken. Green v. Mizule, 54 Miss, 
 220. 
 
 Where an execution and sale were 
 completed by the incoming sheriff, the 
 time will begin to run from the date of 
 the deed. Walls v. Smith, 19 Ga. 8. 
 
 A person enters upon land under a 
 deed describing the land and claiming it 
 under such deed, and which land, at the 
 date of his deed and entry thereon, does 
 not appear to have been granted by the- 
 commonwealth, but subsequently tliere- 
 to the said land is granted to another 
 person. Held, that from the time the 
 grant issued to such other person the 
 statute of limitations commenced to run 
 in favor of the person who had thus 
 entered upon the land; and if he con- 
 tinues in the actual possession, after the 
 date of said grant, long enough to bar ati 
 entry under said statute, he will acquire 
 a valid title to said land. Adams v. Al- 
 kire, 20 W. Va. 480. 
 
 In a suit for the recovery of land, after 
 the issuance of the patent, the statute 
 cannot be held to have commenced run- 
 ning prior to the date of the patent. 
 Manley v. Howlett, 55 Cal. 94; O'Connor 
 V. Fogle, 63 Cal. g. 
 
 Title in the United States. — A party 
 entered into possession of a tract of 
 land under color of title, and so re- 
 mained in possession thereof for more 
 than ten years after the title to the tract 
 had been conveyed to a railroad com- 
 pany by the United States. Held, that 
 to enable him to invoke the protection 
 of the statute of limitations, it was wholly 
 immaterial whether his title originated 
 before or after the title passed from the 
 United States. Tremainez'. Weatherby, 
 58 Iowa, 615. 
 
 Possession for the period named in a 
 State statute is no bar until the legal title 
 passes out of the United States. Gibson 
 V. Choteau, 13 Wall. (U. S.) 92; Dunn v. 
 Miller, 75 Mo. 260. 
 
 Upon a plea of the statute of limita- 
 tions, the only evidence given of posses- 
 sion during the first year of the statutory 
 period was that the defendant's grantor" 
 went once upon the land, set up two 
 stakes at what he was told were corners, 
 tried to ascertain the boundaries, and af' 
 
 367 
 
Continuous. 
 
 ADVERSE POSSESSION. 
 
 Continuous. 
 
 periods of time cannot be united to constitute the period of limi- 
 tation ; and if under color of title, then an actual possession and 
 occupation of a part of the parcel claimed, and-a constructive pos- 
 
 terward paid the taxes for the year. Held, 
 that this did not amount to possession, 
 and the plea was not sustained. Brad- 
 street V. Kinsella, 76 Mo. 63. 
 
 If A recover possession of land by exe- 
 cution on a judgment in ejectment against 
 
 B, semble that the judgment does not 
 relate to the time of action brought, so 
 as to give A, during the intervening 
 time, an adverse possession as against 
 
 C, an independent claimant. Turner v. 
 Baker, 64 Mo. 218. 
 
 If a levy was made on land within four 
 years of its sale by the defendant in fi. 
 fa., but the sale did not take place until 
 after the expiration of the four years, the 
 proof accounting reasonably for the de- 
 lay, then the possession can only be 
 counted in favor of the purchaser up to 
 date of levy. Cox v. Prater, 67 Ga. 588. 
 
 Where the grantee sued and recovered 
 the purchase money by reason of an al- 
 leged want of title in the grantor, held, 
 an abandonment of all rights claimed or 
 acquired by the grantee and a claim of 
 title must commence from the date of re- 
 ceipt of such purchase money. Daven- 
 port V. Sebring, 52 Iowa, 364. 
 
 Where land was sold in 1854 upon an 
 execution against the husband alone, the 
 right of the wife to enter into possession 
 of the land did not vest until the death of 
 her husband, and an action may be 
 brought within twenty years from that 
 time. Wright v. Tichenor, 104 Ind. 185. 
 
 In 1854 certain land belonging to C. 
 ■was levied upon and sold to satisfy a 
 judgment against him alone. In 1856 his 
 wife executed a deed, in which he did not 
 join, to one claiming under the sheriff's 
 sale. In 1864 C. died, his wife surviving. 
 Action by the latter, in 1884, against a 
 remote grantee to recover one third of 
 the land. Held, that while her deed was 
 void, it was sufficient to convey color of 
 title. Also, that the plaintiff's cause of 
 action to avoid the deed which gave color 
 of title accrued when her grantee took 
 possession under the deed in 1856, as 
 there was then an adverse possession of 
 all the land. Also, that the defendant 
 and his grantors having been in posses- 
 sion more than twenty years under color 
 of title conferred by the plaintiff's deed, 
 the action is barred by the statute of 
 limitations, the plaintiff's disability of 
 coverture not postponing the time when 
 the statute began to run. Wright v. 
 Klegla, 104 Ind. 223. 
 
 A held under contract of purchase of 
 B. A abandoned the land, but subse- 
 quently, under a lease from C, without 
 having rescinded his contract with B, 
 the land meanwhile remaining unoccu- 
 pied. Held, that A's reentry related 
 back and continued his original posses- 
 sion. Pratt V. Canneld, 67 Mo. 50. 
 
 In 1783 a lease was granted for nine- 
 ty-nine years, and there was enjoyment 
 under the lease until 1876, when an ac- 
 tion was brought for possession, on the 
 ground that the lease was void under 13 
 Eliz. c. ID. Demurrer that the claim 
 was barred by the statute of limitations. 
 Held, that the lease was voidable, not 
 void; and that, consequently, the statute 
 did not begin to run till the action was 
 brought. Governors of Magdalen Hos- 
 pital V. Knotts, 5 Ch. D. 175. 
 
 Where a co-tenant, pending an action 
 for partition, conveys his undivided in- 
 terest to one who is not and does not be- 
 come a party to the partition proceed- 
 ings, the statute of limitations does not 
 commence to run against the right of 
 such grantee to possession after the de- 
 termination of such partition suit until he 
 has made a demand to be let into pos- 
 session of the land allotted to his grant- 
 or, and' such demand has been refused. 
 Martin v. Walker, 9 Pac. Repr. (Cal.) 
 185. 
 
 To establish adverse possession of 
 land under claim of title founded upon 
 a written instrument, the vendee in pos- 
 session under a parol contract for the 
 sale of the land may avail himself of the 
 former possession and title deeds of his 
 vendor. Meade v. Gilfoyle, 64 Wis,. 18. 
 
 Where the trespass is permanent in its 
 character and the damage is complete on 
 the occurrence of the original act of tres- 
 pass, the statute begins to run from that 
 time. Even in case of o. continuing 
 nuisance or trespass, where every such 
 continuance is regarded as affording a 
 new cause of action, the action must be 
 brought before the defendant has ac- 
 quired a prescriptive right to commit the 
 trespass or to maintain the nuisance by 
 the lapse of such a period as bars plain- 
 tiff's entry upon the land. James w. City 
 of Kansas, 83 Mo. 567. 
 
 The point of time, from which the bar 
 of the statute, prohibiting the institution 
 of an action for the recovery of lands 
 sold for the non-payment of taxes after 
 the expiration of five years from the date 
 
 368 
 
Continuons, 
 
 AD VERSE possession: 
 
 Tacking. 
 
 session of the residue, must continue uninterruptedly for the 
 whole period prescribed.^ (See also ACTUAL POSSESSION, infra.) 
 28. Tacking. — In the case of successive holders of land, after a 
 disseisin committed by one of them, the seisin thereby acquired 
 by him will not enure to the benefit of the others who come into 
 possession after him, unless there is a privity of estate between 
 them and him, by purchase or descent. But if there is privity of 
 estate between them, then their connected possessions can be 
 tacked together to make a continuity of disseisin.** To create 
 
 of sale, is to be computed, is the date of Tacking, — One who relies on title by 
 
 the execution of the deed by the judge 
 of probate, that being the final, consum- 
 mating act of sale. Pugh v. Young- 
 blood, 69 Ala. 296. 
 
 A resumption of the adverse holding, 
 after an interruption by the true owner, 
 will run from the date of the resumption. 
 Steeple v. Downing, 60 Ind. 478. 
 
 Where a deed giving color of title mis- 
 describes the land and a new deed is 
 substituted, the statute will run from date 
 of last deed. Weaver v. Wilson, 48 111. 
 
 125- 
 
 1. Tyler on Eject. 911. 
 
 2. Bryan v. East St. Louis, 12 111. 
 App. 390; Kilbourne v. Lockman, 8 
 Iowa, 380; Brant v. Ogden, i Johns. 
 (N. Y.) 156; Jackson v. Thomas, 16 
 Johns. (N. Y.) 293; Ward v. Bartholo- 
 mew, 6 Pick. (Mass.) 410; Wade v. Lind- 
 say, 6 Mete. (Mass.) 407; Melvin v. Pro- 
 prietors, 5 Metc.--(Mass.) 5; s. c, 28 Am. 
 Dec. 384; Overfield v. Christie, 7 S. & R. 
 (Pa.) 173; McCoy v. Trustees, 5 S. & R. 
 (Pa.) 254; Mercer v. Watson, i Watts 
 (Pa.), 330; Parker v. Southwick, 6 Watls 
 (Pa.), 377; Hunt V. Devling, 8 Watts 
 (Pa.), 403; Moore ly. Small, 9 Pa. St. 
 194; Scheetz v. Fitzwater, 5 Pa. St. 126; 
 Schra k v. Zubler, 34 Pa. St. 38; Wins- 
 low V. Newell, 19 Vt. 164; Day v. Wilder, 
 47 Vt. 584; Satterwhite v. Rosser, 61 
 Tex. 166; Brqwnson v. Scanlan, 59 Tex. 
 222; Wheeler v. Moody, g Tex. 372; 
 Shaw V. Nicholay, 30 Mo. 99; St. Louis 
 V. Gorman, 29 Mo. 593; s. c. , 77 Am. 
 Dec. 586; Chouquette v. Barada, 23 Mo. 
 331; Furlong v. Garrett, 44 Wis. iii; 
 McNeeley v. Langdan, 22 Ohio St. 32 ; 
 McEntire v. Brown, 28 Ind. 347; Doe v. 
 Brown, 4 Ind. 143; Adams v. Tiernan, 
 5 Dana (Ky.), 394; Hanson v. Johnson, 
 62 Md. 25; s. c, 50 Am. Rep. 199; Chil- 
 ton V. Wilson, 9 Humph. (Tenn.) 399; 
 Hays V. Morrison, 30 Ga. 971; Benson ». 
 Stewart, 30 Miss. 49; Riggs v. Fuller, 54 
 Ala. 141; >an Francisco v. Fulde, 37 Cal. 
 349; ShufHeton v. Nelson, 2 Sawy. (U. S.) 
 540; Lea V. Polk County, 21 How. (U. S.) 
 493; Dosewell v. De La Lanza, 20 How. 
 (U. S.) 29. 
 
 prescription and seeks to tack to his own 
 the possession of prior holders to make 
 out the prescription, must show that their 
 possession was bona-fide. Hammond v. 
 Crosby, 68 Ga. 767; Baker v. Hale, 5 
 Baxt. (Tenn.) 46. 
 
 The possession of lands by a vendor 
 is subordinate, and not adverse, to the 
 rights of his vendee, and the statute of 
 limitations does not run during its con- 
 tinuance, so that the time thereof can be 
 added to the time during which a subse- 
 quent purchaser from the vendor may 
 hold, so as to make a sufficient period to 
 bar the rights of the first purchaser. 
 Jeffersonville, etc., R. Co. v. Oyler, 82 
 Ind. 394. 
 
 , Action was brought against A for the 
 possession of land held adversely by him 
 for less than ten years, but before trial 
 he died. The plaintiffs in such action, 
 having matured title by possession made 
 their entry upon the land, and, subse- 
 quently, were ousted by the heirs-at-law 
 of A. Held, that such heirs could not 
 claim that their possession thus acquired 
 was a continuation of A's possession 
 cast upon them by descent. Congdon v. 
 Morgan, 14 S. Car. 587. 
 
 Defendant in ejectment cannot tack the 
 possession of a grantor, whose posses- 
 sion originated in fraud of the true owwer, 
 to his own possession in order to com- 
 plete the term of years necessary to give 
 him title by prescription, though he him- 
 self be an innocent purchaser from such 
 fraudulent grantor. Farrow v. Bullock, 
 63 Ga. 360. 
 
 ,When a vendor conveys by deed lands 
 particularly designated, or described by 
 numbers, metes and bounds, the pur- 
 chaser acquires title, or color of title, 
 only to the lands within the designated 
 numbers and boundaries; and if he 
 claims adverse possession, under color 
 of title, of adjoining lands outside of 
 those numbers and boundaries, because 
 his vendor was in possession thereof at 
 the time his conveyance was executed, 
 he must show that the possession thereof 
 was delivered to him, as a part of the 
 
 369 
 
Continuous. 
 
 ADVERSE POSSESSION. 
 
 Tacking. 
 
 such privity, there must have existed, as between the different 
 disseisors, in regard to the estate of which a title by disseisin is 
 
 lands sold and conveyed; otherwise, he 
 cannot tack his vendor's prior posses- 
 sion to his own subsequent possession, 
 for the purpose of making out a title 
 under the statute of limitations. Humes 
 V. Bernstein, 72 Ala. 546. 
 
 It is indispensable to maintain the plea 
 of limitation that the deed under which 
 he who sets up that defence claims 
 should have been duly registered; the 
 registration of some deed or deeds in the 
 chain of title will not meet the require- 
 ments of the statute. While this is true, 
 one who entered under a deed to himself, 
 duly recorded, may tack his own posses- 
 sion to that of his vendor, who also en- 
 tered and held under a deed duly regis- 
 tered. Cook V. Dennis, 61 Tex. 246. 
 See Wiraberly v, Bailey, 58 Tex. 222. 
 
 A long acquiescence of adverse parties 
 in the possession of land by another will 
 warrant the court in assuming the exist- 
 ence and loss of record-links in making 
 up his title, the lapse of time varying 
 with the conditions under which the rec- 
 % ords were kept and the casualties to which 
 they were exposed. Yount v. Miller, gl 
 N. Car. 331. , 
 
 Where the purchaser of a lot, upon 
 receiving a deed therefor, erects a build- 
 ing thereon and enters into possession, 
 and afterwards sells and cpnveys the 
 premises, a number of transfers being 
 thereafter made, and the building at 
 times being vacant, but no interruption by 
 an adverse claim to the title of the occu- 
 pant, held, that the possession was con- 
 tinuous, and after the expiration of ten 
 years tlie occupant possessed the fee. 
 Stettnische -v. Lamb, 26 N. W. Repr. 
 (Neb.) 374. 
 
 K feme covert d\s<i in December, 1854, 
 leaving a will, which was admitted to pro- 
 bate, but was not executed in due form 
 to pass real estate, because the consent 
 of her husband in writing was not an- 
 nexed thereto, and also because it was not 
 executed sixty days befora her death. By 
 said will she devised a farm to her hus- 
 band for life, with remainder in fee to her 
 nephew. 'Under it her husband, on the 
 1st of January, 1855, entered into pos- 
 session of the property, claiming title as 
 tenant for life, and so continued in pos- 
 session until the 5th of February, 1868, 
 when he united with the nephew in a sale 
 and conveyance to J., who thereupon en- 
 tered upon said property, and continued 
 in possession up to the nth of April, 
 1882, when the heirs-at-law of the testa- 
 trix brought ejecttnent against him. Held, 
 
 that the claim of title and possession of 
 the husband, as tenant for life under the 
 will, being hostile to the title of the heirs- 
 at-law, was as against them adverse and 
 exclusive. That the purchaser from the 
 husband and nephew having immediately 
 taken and held possession under the con- 
 veyance to him, his possession was added 
 or tacked to the possession of the hus-' 
 band, making a continuous adverse pos- 
 session of more than twenty 3'ears, 
 which was a flat bar to the right of the 
 plaintiffs as heirs-at-law. Hanscm i/. 
 Johnson, 62 Md. 25; s. t., 50 Am. Rep. 
 199. 
 
 Possession under color of title may 
 be transferred, and the possession of sub- 
 sequent holders united, as to the land 
 actually occupied, but not as to other 
 land of which the first holder had color 
 of title, but of which there was no con- 
 veyance to subsequent holders. Cooper 
 v., Ord, 60 Mo. 420. 
 
 Where the purchasers were joint ten- 
 ants and one died, and under order of 
 court the property was sold and pur- 
 chased by the survivor, who paid his bid 
 in full but took no deed, held, that the sur- 
 vivor did not hold under a different legal 
 title or by a disconnected right, and tliat 
 the time of his possession might be added 
 to the time of the. joint possession. 
 Congdon v. Morgan, 14 S. Car. 587. 
 
 Even a link in a chain of title subse- 
 quent to patent which is not void, but 
 voidable, will constitute a link in the 
 chain of " title " within the meaning of 
 the statute; and this even though such 
 voidable deed had its origin in a trans- 
 action between the grantbr and grantee, 
 which was fraudulent as loan estate rep- 
 resented by the grantor. League v. Ro- 
 gan. 59 Tex. 427; Pearson u. Burdett, 
 26 Tex. 172. 
 
 A party cannot connect his possession 
 previous to obtaining a deed with his sub- 
 sequent possession under a deed. Barnes 
 V. Vickers, 59 Tenn. 370. . , 
 
 If the actual owner leases to a tenant, 
 in ignorance of a prior lease, to the same 
 tenant from one vvho claims title, the con- 
 tinued possession of the tenant will not 
 keep alive the first landlord's adverse 
 claim. Thompson v. Pioche, 44 Cal. 508. 
 
 Where a tract of land is held under 
 color of title, a part constructively and a 
 part actually, a fjTanlee of the part actu- 
 ally held does not succeed to the claim 
 to the part constructively held. Chand- 
 ler V. Rushing, 38 Tex. 591. 
 
 The possession of a devisor, devisee 
 
 370 
 
Continuous, 
 
 ADVERSE POSSESSION. 
 
 Interruption. 
 
 claimed, some such relation as that of ancestor and heir, grantor 
 and grantee, or devisor and devisee. '^ 
 
 29. hiterruption. — Upon every discontinuance of the possession 
 of thew^rohg-doer, the possession of the rightful owner is, by oper- 
 ation of law, restored, and nothing short of an actual adverse and 
 continuous possession for the statutory period can destroy his 
 right or vest title in the wrong-doer.* 
 
 for life, and remainder-man, is of sufB- 
 cient privity to be tacked to make out a 
 continuous possession. Haynes z/. Board- 
 man, iig Mass. 414. 
 
 One cannot avail himself of the pre- 
 vious possession of another under whom 
 he does not claim in order to establish a 
 title of land by adverse possession. Bai- 
 ley V. March, 3 N. H. 275; Edmunds v. 
 Griffin, 41 N. H. 530; Locke v. Whitney, 
 5 Eastn. Repr. (N. H.) 340; Sijnpson v. 
 Downing, 23 Wend. (N. Y.) 316; Jack- 
 son V. Woodruff, I Cow. (N. Y.) 286; 
 Sawyer v. Kendall, 10 Cush. (Mass.) 241; 
 Leonard ii. Leonard, 7 Allen (Mass.), 
 
 277. 
 
 The possession of mere trespassers can- 
 not be tacked. Baker v. Hale, 6 Baxt. 
 (Tenn.) 46; Moffitt v. McDonald, II 
 Humph. (Tenn.) 457. CompareHnghs v. 
 Pickering, 14 Pa. St. 297. 
 
 In South Carolina it is held, that where 
 possession originally was wrongful, until 
 it ripened into a right by lafise of time, 
 or by descent cast, there was no estate, 
 no right of property, which could be con- 
 veyed by deed. Consequently the pur- 
 chaser from a party thus in possession 
 of lands of another acquired nothing by 
 his deed. They were, as to the real own- 
 ers, mere trespassers, who could not tack 
 their successive trespasses together so 
 as to defeat the right of him who had 
 the title. Mazyck c. Wight, 2 Brev. (S. 
 Car.) *i5i; King v. Smith, Rice fS. Car.) 
 II; Pegues v. Warley, 14 S. Car. i8o. 
 Compare Moore i/.Small, 9 Pa. St. 194. 
 
 The privity between successive posses- 
 sors may be shown by parol evidence. 
 Weber v. Anderson, 73 111. 439. 
 
 What does not constitute Tacking. — 
 An invalid sheriff's deed will not consti- 
 tute privity between the person whose 
 property is sold and the purchaser. Hes- 
 ters V. Coats, 22 Ga. 46. 
 
 The possession of successive pur- 
 chasers of a tract of land covered by the 
 lien of ii judgment, who derived title 
 from the judgment debtor, cannot be 
 united so as to make up the statutory pe- 
 riod necessary to give title by adverse 
 possession, Pegues v. Warley, 14 S. 
 Car. 180. 
 
 Where the grantor vacated the prem- 
 
 ises, and they were vacant for a short 
 time before the grantee took possession, 
 held, that the possession of the grantor 
 and grantee could not be tacked. Te- 
 garden v. Carpenter, 36 Miss. 504. 
 
 A bought land upon which was a, 
 judgment lien. Subsequent 10 his entry 
 the land was sold under the judgment. 
 Held, that he could not tack the time he 
 was in possession previous to the sher- 
 iff's sale to the time he continued in pos- 
 session after the sale. Marsh v. Griffin, 
 53 Ga. 320. 
 
 A widow cannot tack her possession to 
 that of her deceased husband. Sawyer v. 
 Kendall, 10 Cush. (Mass.) 241. 
 
 The possession of a tenant for life is 
 not privy to that of a remainder-man. 
 Austin V. Rutland R. Co., 45 Vt. 215. 
 Compare Haynes v. Boardman,ii9 Mass. 
 414. 
 
 A, being in actual possession of a part 
 of a tract and in constructive possessioa 
 of the remainder, under color of title sold 
 the part actually occupied to B. Held, 
 that B did not succeed to it. Chandler 
 V. Rushing. 38, Tex. 591. 
 
 Corporations. — Possession by a corpo- 
 ration cannot be tacked 10 a previous pos- 
 session by the individuals forming the 
 corporation, organized as a voluntary 
 society for the same purposes, so as to- 
 make a title by adverse possession. Re- 
 formed Church V. Schoolcraft, 65 N. Y. 
 
 134- 
 
 1. Sawyer v. Kendall, 10 Cush. (Mass.) 
 241; Fugate V. Pierce, 49 Mo. 441; Cris- 
 pen V. Hannavan, 50 Mo. 536; Cahill J'. 
 Palmer, 45 N. Y, 478. 
 
 2. Doe V. Thompson, 5 Cow. (N. Y. ) 
 371; Thompson v. Biirhans, 79 N. Y. 99; 
 Bliss V, Johnson, 94 N. Y. 235; Sherman 
 V. Kane, 86 N. Y. 56; Casey v. Inloes, 
 I Gill (M(l.), 430; s, c, 39 Am. Dec. 658; 
 Core V. Faupel, 24 W. Va. 23S; Sfeple 
 V Downing. 60 Ind 478; Mclniire v. 
 Brown, 28- Ind 347; Crispin v. Hanna- 
 van, 50 Mo. 536; Malloy v. Bruden, 8& 
 N. Car. 251; Holdfast v. Shepard. 6 Ired. 
 (N. Car.) 364; Hill v. Saunders, 6 Rich. 
 (S. Car.) 62; Joiner v. Borders. 32 Ga. 
 239; Virgin V. Land, 32 Ga. 572; Arm- 
 strong V. Merrill, 14 Wall. (U. S.) 120. 
 
 In Core v. Faupel, 24 W. Va. 238, the 
 
 271 
 
Continuous, 
 
 ADVERSE POSSESSION. 
 
 Superior litlo. 
 
 30. Offer to purchase Superior Title. — An offer on the part of de- 
 
 court said : "It is not sufficient for the 
 wrong-doer to show an act of adverse 
 possession at a point more than ten years 
 prior to the bringing of the action against 
 him. He must show that such adverse 
 possession has been continued, consecu- 
 tive and unbroken, for the statutory pe- 
 riod. It is sometiiing done by him, not 
 merely that which is left undone by the 
 owner, that is to be considered. There 
 can be no constructive adverse posses- 
 sion against the owner, when there is no 
 actual possession which he could treat as 
 ~a trespass and bring an action for; unless 
 the adverse claimant is so in possession 
 of the land that he may at any time be 
 sued as trespasser, the statute will not 
 run in his favor; and although he may 
 have taken actual possession, if he does 
 not continue there so that he may be sued 
 at any time as a trespasser during the 
 prescriptive bar, he cannot rely on the 
 statute of limitations. The moment the 
 premises became vacant, that moment 
 the owner, by reason of his legal title, 
 will be regarded in the constructive pos- 
 session, and the adverse possession of 
 the wrong-doer at an end. It is. there- 
 fore, absolutely necessary that the ad- 
 verse occupancy shall be continuous, 
 open, visible, and exclusive in order to 
 effect a bar of the title of the true owner." 
 
 A subsequent entry, even by the same 
 wrong-doer and under the same claim of 
 title, constitutes a new disseisin, from the 
 date of which the statute takes a fresh 
 start. Malloy v, Bruden, 86 N. Car. 251; 
 Olwine </. Holman. 23 Pa. St. 274; Jack- 
 son V. Leonard, g Cow. (N. Y.) 653; Mel- 
 vin V. Proprietors, 5 Mete. (Mass.) 5; s. 
 ■c, 38 Am. Dec. 384; Allen v. Holton, 20 
 Pick. (Mass.) 465. 
 
 > The interruption need be but for a sin- 
 gle day. Olwine v. Holman, 23 Pa. St. 
 279. 
 
 Possession under color of title must be 
 continuous ; a gap, though occurring 
 during the period the statute was sus- 
 pended, is sufficient to destroy its con- 
 tinuity. Malloy V. Bruden, 86 N. Car. 
 251. 
 
 Where title to land has been acquired 
 by adverse possession, it is not forfeited 
 by an interruption of the actual occupa- 
 tion thereafter. Sherman v. Kane, 86 
 N. Y. 57; Spofford v. Bennett, 55 Tex. 
 -293. 
 
 Possession once established by mate- 
 rial acts of visible, notorious ownership 
 must be presumed to continue until open, 
 notorious, and adverse possession be 
 proven to be taken by another. Clements 
 -V. Lampkin, 34 Ark. 598. 
 
 Where thirty years' actual possession of 
 land is relied upon to presume a grant 
 from the State, it is not necessary to 
 show that there was any connection be- 
 tween the successive occupants during 
 the period. Nor will a three-year breach 
 in the continuity of possession repel such 
 presumption. Cowles v. Hall, 90 N. 
 Car. 330. 
 
 It is a question for the jury to deter- 
 mine whether in fact the adverse posses- 
 sion has been continuous or has been 
 interrupted. Stevens v. Taft, 11 Gray 
 Mass.), 33; Bowen v. Guild, 130 Mass. 
 131; O'Hara v. Richardson, 46 Pa. St. 
 385; De Haven v. Landell, 31 Pa. St. 120; 
 Groft V. Weakland, 34 Pa. St. 304; Jack- 
 son V. Wood, 12 Johns. (N. Y.) 242; Van 
 Gorden v. Jackson, 5 Johns. (N.Y.) 440; 
 Jackson v. Joy. 9 Johns. (N. Y.) 102; 
 Beverly v. Burke, 9 Ga. 440; s. c, 54 
 Am. Dec. 351. 
 
 What is Interruption. — Mere intrusion 
 of a trespasser does not constitute an 
 interruption. Bell v. Denson, 56 Ala. 
 444. See Doe v. Eslava, 11 Ala. 1028; 
 Raynor u. Lee, 20 Mich. 384. Compare 
 Whalley v. Small, 29 Iowa, 288. 
 
 An order of the military power com- 
 pelling to leave the statute will break the 
 continuity of possession, although an in- 
 tent to return as soon as safe exists. 
 Halliday v. Cromwell, .37 Tex. 437. 
 
 In contemplation of law the enforce- 
 ment of a writ of possession in an action 
 of ejectment puts an end to the adverse 
 •possession of defendant as of the day of 
 the institution of the suit. Dunn v. Mil- 
 ler, 75 Mo. 260. 
 
 An agreement to arbitrate will inter- 
 rupt the running of the statute. Per- 
 kins V. Blood, 36 Vt. 273. 
 
 Forfeiture to the State as a sale for 
 taxes, interrupts the continuity. Arm- 
 strong V. Morrill, 14 Wall. (U. S.) 120. 
 
 Beginning the erection of a house, 
 leaving it partly built, and returning some 
 months afterwards to finish and occupy 
 it, will break the Antinuity of posses- 
 sion. Bryne v. Lowry, 19 Ga. 27. 
 
 Permitting the inclosing fences to 
 decay, and become insufficient to pro- 
 tect the land, will interrupt the posses- 
 sion. Borel V. Rollins, 30 Cal. 408. 
 
 A, the tenant of B, attorned to C, who 
 claimed to be the legal owner. Held, that 
 the possession of B was broken. Russell 
 ». Ewing, 38 Ala. 44; see Thompson v. 
 Pioche, 44 Cal. 508. Compare Haynes 
 V. Boardman, 119 Mass. 414. 
 , Where one holding land permissively 
 under bonds for titles conveyed it ab- 
 solutely (the vendee taking possession), 
 
 372 
 
Continuous. 
 
 ADVERSE POSSESSION. 
 
 Superior Title^ 
 
 fendant to purchase the property which he is holding adversely 
 
 What constitutes Interruption — Continued. 
 and subsequently rebought from his 
 vendee and resold to another vendee, the 
 adverse possession was broken, and the 
 possession of the first and last vendees 
 could not be tacked so as to make a good 
 prescriptive title. Hines v. Rutherford, 
 67 Ga. 606; Rutherford v. Hobbs, 63 
 Ga. 243. See EUege v. Cooke, 5 Lea. 
 (Tenn.), 622. 
 
 An order of the court requiring the 
 conveyance of the land interrupts the 
 occupation. Gower v. Quinlan, 40 Mich. 
 
 572- 
 
 Defendant died, and plaintiffs took pos- 
 session, who were ousted by defendants' 
 heirs. Held, that there was not a con- 
 tinuous possession cast by descent. 
 Congdon v. Morgan, 14 S. Car, 587. 
 
 Within three years after the recording 
 of a tax deed the grantee therein quit- 
 claimed to the original owner, but the 
 quitclaim deed was not recorded. Sub- 
 sequently he conveyed the land to a third 
 person, who had no notice of the quit- 
 claim deed and who duly recorded his 
 conveyance. The lands remained unoc- 
 cupied for more than three years after 
 the tax deed was recorded. Held, that 
 the quitclaim deed to the original owner 
 was an abandonment and surrender by 
 the tax-title claimant of the constructive 
 adverse possession which arose in his 
 favor upon the recording of his tax deed, 
 and that the statute of limitations ceased 
 thereupon to run in his favor, but ran 
 thereafter in favor of the original owner, 
 and at the expiration of the three years 
 from the recording of the tax deed 
 barred all right of action in favor of 
 those claiming title thereunder. Warren 
 V. Putnam, 63 Wis. 410. 
 
 Where one has in good faith entered 
 upon and continued in possession of land 
 under a paper title which he took believ- 
 ing it to be good, the maintenance of 
 such possession during a portion of the 
 three years next after the recording of a 
 tax-deed of the land interrupts the run- 
 ning of the three-year limitation in favor 
 of the tax-title claimant, and defeats the 
 tax title to the extent of such actual pos- 
 session and of the constructive possession 
 following upon it. Stephenson v. Wil- 
 son, 50 Wis. 95. 
 
 Where a portion of a tract is held by 
 constructive possession, and the other 
 portion by actual possession, the convey- 
 ance of the part actually held will stop 
 the running of the statute as to the part 
 constructively held. Chandler v. Rush- 
 ing, 38 Tex. 591. 
 
 What is not Interruption, — But a pur- 
 chase of the land at a tax sale, by the 
 adverse claimant, will not impair his 
 right to rely upon the statute. Hayes v. 
 Martin, 45 Cal. 559. 
 
 Tearing down the fence between one's 
 self and next neighbor after asserting a 
 right to premises inclosed by it is a mere 
 trespass; it does not break his adverse 
 possession of the premises inclosed. 
 Donovan v. Bissell, 53 Mich. 462. 
 
 The temporary interruption of actual 
 residence on the land, caused by the un- 
 lawful and violent acts of strangers in 
 tearing down the house and rendering 
 the premises untenable for the lime be- 
 ing, will not stop the running of the 
 statute. Clark v. Potter, 32 Ohio St. 49. 
 See Whalleyw. Small, 29 Iowa, 288. Bell 
 V. Denson, 56 Ala. 444; Ladd v. Dubroc- 
 ca, 61 Ala. 25. 
 
 If 1 the posse.'Jsion was disturbed by the 
 act of war by an army quartering thereon,, 
 such interference would not arrest the 
 running of the statute, if it be shown 
 that defendants resumed their actual, 
 possession as soon thereafter as they 
 reasonably could do. McColgan v. Lang- 
 ford, 6 Lea (Tenn.), 108. Compare Hal- 
 liday v. Cromwell, 37 Tex. 437. 
 
 Adverse possession is not broken by 
 deeding the land away if the grantor con- 
 tinues in possession and takes back a, 
 mortgage for purchase money which he 
 afterwards forecloses and under which he 
 himself . becomes foreclosure purchaser. 
 And it is immaterial that the foreclosure 
 proceedings are defective, if the posses- 
 sion is retained. Whitford v. Crooks, 54, 
 Mich. 261. 
 
 One J. held the legal title to the whole 
 of a highway; S. , to whose title plaintiff 
 succeeded, took title in 1837, to a farm 
 adjoining the highway under a deed' 
 which by its terms bounded the lands on 
 the north by the centre of the highway;: 
 immediately thereafter S. built a fence 
 extending one rod into the highway, 
 along the entire north line of his farm,, 
 and he and his successor in title continued 
 to occupy the inclosed strip under claim 
 of title until 1846, when, upon a sur- 
 vey establishing J.'s title to the whole 
 highway, the fence was removed back to 
 the south line thereof, and thereafter no 
 part of it was inclosed. From 1867, when 
 plaintifit purchased and took possession, 
 down to 1875, he occupied a strip of land- 
 one rod wide adjoining his farm, by plougb , 
 ing, cultivating, and mowing it each year. 
 Held, that conceding both of these peri- 
 
 273 
 
Continuous. 
 
 ADVERSE POSSESSION. 
 
 Superior Title. 
 
 from the plaintiff within the statutory time is a clear recogni- 
 
 "What is not Interruption — Continued. 
 ods of occupation were hostile in inception 
 and continuous in cliaracter and suffici- 
 ent to initiate a claim to an adverse pos- 
 session, they did not bar the right of the 
 true owner, as there was not a continuous 
 adverse possession for twenty years. 
 Bliss V. Johnson, 94 N. Y. 235. 
 
 Where the premises are at times vacant, 
 but no intention to abandon possession 
 exists, the possession will not be inter- 
 rupted. Siettnische v. Lamb, 26 N. W. 
 Repr. (Neb.) 374; Hughs v. Pickering, 
 14 Pa. St. 297; Hudgins v. Crow, 32 
 Ga. 367; Fugate v. Pierce, 49 Mo. 441; 
 Crispin v. Hannavan, 50 Mo. 536; I>e 
 la Vega v. Butler, 47 Tex. 529; Harper 
 ■V. Tapley, 35 Miss. 506. 
 
 A short and reasonable time, occa- 
 sioned by the change of occupation, will 
 not break the possession. De la .Vega 
 ■V. Butler, 47 Tex. 529. 
 
 If one member of the family remains 
 there will be no interruption. Cunning- 
 ham V. Brumbach, 23 Ark. 336. Nor 
 will a short absence on business. Cun- 
 ningham V. Pation, 6 Pa. St. 355; Sailor 
 •V. Hertzog, 10 Pa. St. 296. 
 
 The adverse possessiort of a beach by 
 a town is not affected by the passage 
 of inhabitants of the town over the 
 beach to gather sea-weed or procure sand, 
 or by their using the beach as a place 
 of temporary deposit for the sea-weed. 
 New Shoreham v. Ball, 14 R. I. 566. 
 
 A forcible entry upon the actual ad- 
 verse possession of another, followed by 
 an unlawful detainer, does not interrupt 
 the adverse possession,, if an action for 
 the forcible entry and detainer is com- 
 menced within a reasonable time and 
 prosecuted to a successful termination. 
 Ferguson v. Bartholomew, 67 Mo. 212; 
 Carey iv. Edmonds, 71 Mo. 523. See 
 San Jos6 v, Trimble, 41 Cal. 536; Fergu- 
 son V. Bartholomew, 67 Mo. 212. 
 
 Where one having an unperfected title 
 enters and collects rent, held, not to be 
 an interruption of claimant's possession. 
 Donahue v. O' Conor, 45 N. Y. Supr. 
 Ct. 278. 
 
 Non-user, caused by the burning of 
 the.fences. will not break'the continuity. 
 Ford V. Wilson, 35 Miss. 490. 
 
 Occasional acts of trespass by others, 
 even though claiming under color of 
 title, and an action of trespass during 
 the period, would not necessarily pre- 
 vent the ripening of possession into title. 
 Duren v. Sinclair, 22 S. Car. 361. 
 
 By Entry of Legal Owner. — Adverse 
 possession is interrupted by the true 
 owner's entry upon the land and claim 
 
 of title. Campbell v. Wallace, 12 N. H. 
 362; Wendell v. Moulton, 26 N. H. 41; 
 Gage V. Gage, 30 N. H. 420; s. c, 37 
 Am. Dec. 219; Locke v. Whitney, 5 
 East. Repr. (N. H.) 340; Burrows -u. Gal- 
 lup, 32 Corin. 493; Brickett v. Spofford, 
 14 Gray (Mass.), 514; Thompson v. 
 Pioche, 44 Cal. 508. 
 
 Joint possession by the legal owner, 
 and claimant by possession, at any time 
 within the statutory period will stop the 
 running of the statute. Larwell v. Ste- 
 vens, 2 McCrary (U. S.), 311. 
 
 Mere verbal objections by the true 
 owner do not constitute an interruption. 
 Kimball v. Ladd, 42 Vt. 747. 
 
 An entry on land by a person disseised, 
 merely for the purpose of seeing if there 
 is any evidence of an adverse occupa- 
 tion, is not, as matter of law, conclu- 
 sive evidence of an interruption of the 
 disseisor's adverse possession. Bowen 
 w. 'Guild, 130 Mass. 121. See Pope v. 
 Henry, 24 Vt. 560; Burrows v. Gallup, 
 32 Conn. 493; Hollinshead v. Nauman, 
 45 Pa. St. 140; Creech v. Jones, 5 Sneed 
 (Tenn.), 631. 
 
 On the entry of the true owner upon 
 any part of his land the constructive 
 possession of an adverse claimant, in 
 actual possession of some portion of it, 
 ceases as to uninclosed land. Evitts v. 
 Roth, 61 Tex. 8r; Henderson v. Griffin, 
 5 Pet. (U. S.) 151. 
 
 Entry by the true owner to show the 
 land to a purchaser, and the subsequent 
 execution of a deed, will interrupt the 
 possession. Brickett v. Spofford, 14 
 Gray(Mass.), 514. See Oakes v. Marcy, 
 10 Pick. (Mass.) 195; Warner v. Bull, 13 
 Mete. (Mass.) i. 
 
 During the three years immediately 
 following the record of a tax deed (which 
 was void for irregularity in the tax prb- 
 ceedings). the original owner entered 
 upon the land for the purpose of remov- 
 ing the pine timber; and he rut roads, 
 built sledways, and cut and/ hauled the 
 pine from the land, during two successive 
 lumbering seasons of three or four 
 months each, but did not erect any 
 shanty or other structure thereon. Such 
 occupancy was open and continuous dur- 
 ing the two seasons; it terminated when 
 the pine timber was all removed; ancf the 
 land, though fit for agricultural purposes, 
 continued during the whole period to be 
 wild and unimproved. Held, that the 
 occupancy was sufficient to interrupt the 
 running of the three-year limitation in 
 favor of the tax-title claimant. Haseltine 
 V. Mosher, 51 Wis. 443. 
 
 274 
 
Continuous. 
 
 AD VERSE POSSESSION. 
 
 Adverse Holder. 
 
 tion of plaintiff's title, and will interrupt the running of the 
 statute.! 
 
 31. Purchase by Adverse Holder. — One in possession of land, and 
 claiming to own it, may buy in outstanding claims of title without 
 abandoning or impairing his own title, or even acknowledging the 
 validity of the title so bought.* 
 
 Entry of Legal Owner — Continued. 
 
 Adverse holding is not interrupted or 
 suspended by an action of ejectment 
 brought by the owner and afterwards dis- 
 missed. Langford v. Poppe, 56 Cal. 73; 
 Workman v. Guthrie, 29 Pa. St. 495; Fer- 
 guson V. Bartholomew, 67 Mo. 21Z; Ken- 
 nedy V. Reynolds, 27 Ala. 364. Contra, 
 if the action is successful, Groft v. Weak- 
 land, 34 Pa. St. 304. 
 
 It appeared that R., a former owner of 
 defendant's land, brought an action for 
 trespass against one who had gathered 
 sea-weed upon the beach. R. discon- 
 tinued the action under an agreement 
 with the town, and agreed not to sue 
 again. Held, that this did not entitle 
 plaintiffs to a charge to the jury that 
 R. thereby relinquished his adverse 
 possession; that it was at most evi- 
 dence bearing upon that question for the 
 consideration of the jury. Trustees v. 
 Kirk, 84N. Y. 215; s. c.,38Am. Rep. 505. 
 
 Where the claimant yields possession, 
 upon threat of legal proceedings by the 
 true owner, the possession is broken. 
 Shaffer v. Lowry, 25 Pa. St. 252. 
 
 During the three years immediately 
 following the record of a tax deed 
 (which was void for irregularity in the 
 tax proceedings), the original owner en- 
 tered upon the land for the purpose of 
 removing the pine timber; and he cut 
 roads, built sledways, and cut and hauled 
 the pine from the land, during two suc- 
 cessive lumbering seasons of three or 
 four months each, but did not erect any 
 shanty or other structure thereon. Such 
 occupancy was open and continuous dur- 
 ing the two seasons; it terminated when 
 the pine timber was all removed: and the 
 land, though fit for agricultural purposes, 
 continued during the whole period to be 
 wild and unimproved. Held, that the 
 occupancy was sufficient to interrupt the 
 running of the three-year limitation in 
 favor of the tax-title claimant. Hasel- 
 tine V. Mosher, 51 Wis. 443. 
 
 Where the land in question was timber 
 land, uninclosed, and used for no other 
 purpose than to supply wood, rails, and 
 other timber, and the defendant, Who had 
 the patent title, so used it up to the time 
 when the tax title vested in plaintiff, and 
 continued so to use it thereafter for a 
 time exceeding the period prescribed by 
 the statute of limitations, held, that the 
 
 tax title was barred, notwithstanding the 
 exercise by plaintiff during that time of 
 certain acts of ownership which, how- 
 ever, did not amount to an ouster of de- 
 fendant. Brett V. Farr, 66 Iowa, 684; 
 Ellsworth V. Low, 62 Iowa, 178, and 
 Griffith V. Carter, 64 Iowa, 193, 
 
 The acceptance of a lease by the ad- 
 verse claimant from the true owner will 
 stop the running of the statute during the 
 term of such lease. Abbey H. Assoc, v. 
 Willard, 48 Cal. 614. 
 
 1. Lovell V. Frost, 44 Cal. 474; Cent. 
 Pac. R. Co. V, Mead, 63 Cal. 113; Pac. 
 Ins Co. V. Stroup, 63 Gal. 150; Jackson 
 V. Britton, 4 Wend. (N. Y.) 507; Jack- 
 son V. Cuerden, 2 Johns. Cas. (N, Y.) 
 353; Jackson v. Croy, 12 Johns. (N. Y.) 
 427. Covipare Tobey v. Secor, 60 Wis. 
 310; Walbrunn v. Ballen, 68 Mo. 164; 
 Chapin v. Hunt, 40 Mich. 595. 
 
 Adverse possession of real estate loses 
 its adverse character when the holder 
 thereof, for a sufficient consideration, 
 agrees with the true owner that suit to 
 recover such possession shall not be 
 brought during the lifetime of each of 
 them. Dietrick v. Noel, 42 Ohio St. 
 18: s. c, 51 Am. Rep. 788. 
 
 If the possession of a tenant in com- 
 mon is adverse to his co-tenant, it will 
 not lose its hostile character by the 
 former tendering a quitclaim deed to 
 the latter, and requesting him to sign it, 
 there being no offer to purchase, nor 
 any acknowledgment of the tenancy. 
 Unger v. Mooney, 63 Cal. 586; s. c, 49 
 Am. Rep. 100. 
 
 2. Jackson v. Given, 8 Johns. (N. Y.) ' 
 137; s. c, 5 Am. Dec. 328; Jackson v. 
 Smith, 13 Johns. (N. Y.) 406; Northrop 
 V. Wright, 7 Hill (N. Y.), 476; Parker v. 
 Proprietors, etc., 3 Mete. (Mass.) 91; 
 s. c, 37 Am. Dec. r2i; Owens v. Myers, 
 20 Pa. St. 134; s. c, 57 Am. Dec. 693; 
 Bannon v. Brandon, 34 Pa. St. 263; 
 Brandon v. Bannon, 38 Pa. St. 63; 
 Lodge V. Patterson, 3 Watts (Pa.), 74; 
 s. c, 27 Am. Dec. 385; Coperlon v. 
 Gregory, 11 Graft. (Va.) 505; Ridgeway 
 V. HoUiday, 59 Mo. 444 ; Cannon v. 
 Stockton, 36 Cal. 535; Hayes, 7/. Martin, 
 45 Cal. 559; Chapin v. Hunt, 40 Mich. 595; 
 Blight V. Rochester, 7 Wheat. (U. S.) 535. 
 
 But an offer to purchase from the true 
 owner is a recognition of his title, and 
 
 375 
 
Not adversely to all. AD VERSE POSSESSION. 
 
 Color of Title. 
 
 32. May not hold adversely to All. — He may acknowledge that 
 he does not hold adversely as regards a certain person, and his 
 admissioft will not estop him to hold adversely as to others. ^ 
 
 33. Color of Title is that which in appearance is title, but which 
 in reality is no title.* Whefre a person is said to have color of 
 title, the phrase implies that some act has been done or some 
 event has occurred by which some title, good or bad, has been 
 conveyed to him. One who thus enters holds to the boundaries 
 described in the deed, writing, or agreement upon which his claim 
 is based. ^ 
 
 will break the possession. Lovell v. 
 Frost, 44 Cal. 474, and cases cited 
 ante. 
 
 1. Portis V. Hill, 14 Tex. 69; s. u., 65 
 Am. Dec. gg. > 
 
 2. Wright V. Mattison, 18 How. (U. S.) 
 
 50- 
 
 3. Mylar v. Hughes, 60 Mo. 105; Ware 
 V. Johnson, 55 Mo. 500; Chapman w.Tem- 
 pleton, 53 Mo. 463; Thompson v. Cragg, 
 24 Tex. 582; Brooks v. Bruyn, 35 III. 394; 
 Coleman v. Billings, 89 111. 183; McEvoy 
 
 .V. Lloyd, 31 Wis. 143; Edgerton !•. Bird, 
 6 Wis. 527; s. c, 70 Am. Dec. 473; Pack- 
 ard V. Moss, 8 Pac. Repr. (Cal.) 818; Kile 
 V. Tubbs, '-2, Cal. 431; Bernal v. Gleim, 
 33 Cal. 676; Gordan v. Tweedy, 74 Ala. 
 232; Beverly v. Burke, 9 Ga. 440; o. c, 
 54 Am. Dec. 351; Field v. Boynton, 33 
 Ga. 239; Janio v. Patterson, 62 Ga. 527; 
 Veal V. Robinson, 70 Ga. 809; Welborn 
 V. Anderson, 37 Miss. 155; Chiles w.Con- 
 ley, 9 Dana (Ky.), 385; Alston v. Collins, 
 2 Speers (S. Car.) 450; Eibert v. Reid, i 
 N. & McC. (S. Car.) 374; Banki/. Smyers, 
 2 Sirob. (S. Car.) 24; Johnson v. McMil- 
 lan, I Strob. (S. Car.) 143; Golson v. 
 Hook, 4 Strob. (S. Car.) 23; Senior v. 
 South, 10 Ired. CN. Car.) 237; Bynum v. 
 Thompson, 3 Ired. (N. Car.) 578; Cline 
 V. Catron, 22 Gratt. (Va.)378; Creekmur 
 V, Creekmur, 75 Va. 430; Core v. Faupel, 
 24 W. Va. 238; Stevens v. HoUister, 18 
 Vt. 294; s. c, 46 Am. Dec. 154; Ralph v. 
 Bagley, 11 Vt. 521; Hubbard v. Austin, 
 II Vt. I2g; Waldron v. Tuttle, 4 N. H. 
 371; Sparhawki/.Bullard, i Mete. (Mass.) 
 gS; Poignard v. Smith, 8 Pick. (Mass.) 
 272; Jackson v. Oltz, 8 Wend. (N.Y.)440; 
 Simpson V. Downing, 23 Wend. (N. Y.) 
 316; Jackson u. Frost, 5 Cow. (N. Y.) 
 346; Jackson v. Vermilyea, 6 Cow. 
 (N. Y ) 677; La Frombois v. Jackson, 8 
 Cow. (N. Y.) 58g; s. c, 18 Am. Dec. 463; 
 Craig V. Goodman, 22 N. Y. 170; Munro 
 V. Merchant, 28 N. Y. g; Saxton v. Hunt, 
 20 N. J. L. 487; Waggoner v. Hastings, 
 5 Pa. St. 300; Nearhoff v. Addleman, 31 
 Pa. St. 279; Allen v. Grove, 18 Pa. St. 
 377; HoUingshead v. Naumon, 45 Pa. St. 
 
 140; Ege V. Medlar, 82 Pa. St. 86; Che- 
 ney V. Ringold, 2 H. & J. (Md.) 87; Ba- 
 ker V. Swan, 32 Md. 355. 
 
 "Color of title is anything in writing 
 purporting to convey title to the land, 
 which defines the extent of the claim, it 
 being immaterial how defective or imper- 
 fect the writing may be, so that it is a 
 sign, semblance, or color of title." Veal 
 V. Robinson, 70 Ga. 8og. 
 
 To constitute color of title one must 
 have a paper title. A claim of title may 
 exist wholly by parol. Hamilton v. 
 Wright, 30 Iowa, 486 ; Provost v. John- 
 son, g Mart. (La.) 123. 
 
 Any instrument having a grantor and 
 grantee, and containing a description of 
 the lands intended to be conveyed, and 
 apt words for their conveyance, gives 
 color of title to the lands described. Such 
 an instrument purports to be a convey^ 
 ance of the title; and because it does not, 
 for some reason, have that effect, it pass- 
 es only color or semblance of a title. It 
 makes no difference whether the instru- 
 ment fails to pass an absolute title, be 
 cause the grantor had none to convey, or 
 had no authority in law or in fact to con- 
 vey one, or whether such want of au- 
 thority appears on the face of the instru- 
 ment or aliunde. The instrument fails 
 to pass an absolute title for the reason 
 that the grantor was not possessed of 
 some one or more of these requisites, 
 and therefere it gives the semblance or 
 color only of what its effect would be if 
 they were not wanting. Brooks v. 
 Bruyn, 35 111. 394. 
 
 A deed purporting to be executed by 
 virtue of a power of attorney from the 
 owner of the land, which power is not 
 proved, affords sufficient color of title on 
 which to found an adverse possession, if 
 there has been a good constructive occu- 
 pation under it. Munro v. Merchant, 
 28 N. Y. 9. 
 
 A sale under execution will not give 
 color of title unless a deed is executed. 
 Baird v. Evans, 58 Ga. 350. 
 
 Whenever an instrument by apt words 
 
 276 
 
Color of Title. 
 
 ADVERSE POSSESSION. 
 
 Good Faith, 
 
 34. Good Faith. — The claim must be made in good faith, but by 
 this it must not be understood that the inquiry as to good faith 
 in claiming title involves an inquiry into one's belief in the strength 
 
 of transfer, in form passes what purports 
 to be the title, it gives color of title. 
 Hall V. Law, 102 U. S. 461. The de- 
 scription is sufficient if the land can be 
 identified. Henley v. Wilson, 8r N. Car. 
 405. See Lynde v. Willianis, 68 Mo. 
 360; Jackson v. Frost, 6 Cow. (N. Y.) 
 546;. Coleman v. Billings, Bg 111. 183. 
 
 What constitutes color of title is a 
 question of law for the court. The ques- 
 tion of occupancy under it is one of fact 
 for the jurv. Packard v. Moss, 8 Pac. 
 Repr. (Cal.) 81S. 
 
 The character of the possession of one 
 who claims to have held land adversely 
 undercolor of title is to be referred to 
 and determined by the conveyance under 
 which he entered; and one who entered 
 and obtained possession under one deed 
 cannot be heard to say that he entered 
 under another and paramount title unless 
 he has done something tantamount to a 
 re-entry. Watts v Owens. 62 Wis. 512, 
 
 What constitutes Color of Title. — A 
 bequest of land under s will. Henley 
 V. Wilson, Si N. Car. 405. See Green 
 V. Mizelle, 54 Miss. 220. Although the 
 will is that only of a life tenant. Evans v. 
 Satterfield, i Murph. (N. Car.) 413. See 
 Teabout v. Daniels, 38 Iowa. 158. Com- 
 pare Callender v. Sherman, 5 Ired. 
 (N. Car.) 711. A paper purporting to 
 be a will, and proved many years before. 
 McConnell v. McConnell, 64 N. Car. 342 
 
 A testator by will dated 1824 devised 
 all his estates and all other his estates of 
 which he might be possessed at the time of 
 his death to his wife for life, with re- 
 mainder over. He purchased a freehold 
 estate after the date of his will. After 
 his death his widow entered into posses- 
 sion of all of the estates of which he died 
 possessed, believing she was entitled so 
 to do under the will; and she continued 
 in possession more than twenty years. 
 Held, that she had acquired title by ad- 
 verse possession. Paine v. Jones, L. R. 
 18 Eq. 320. 
 
 Title by descent. King v. Rowan, 10 
 Heisk. (Tenn.) 675. 
 
 A deed from one in possession of land, 
 under color of title, though the deed is 
 not recorded. Bellows v. Jewell, 60 N. 
 H. 420. See infra. 
 
 Where a defendant in an execution 
 denies the validity of the sale of land 
 thereunder and subsequently enters on 
 and holds the premises adversely, the 
 patent and deeds under which he held 
 
 before the sale are sufficient to give color 
 of title in aid of such adverse possession, 
 Gaines v. Saunders, 87 Mo. 557. 
 
 A prescriptive title, by virtue of ad- 
 verse possession under color of title for 
 seven years will prevail against the lien 
 of a judgment against the vendor of suchi 
 claimant rendered before the prescription' 
 ~ began, but with no levy on the property 
 until after the prescriptive title had 
 ripened. Johnson v, Neal, 67 Ga. 528. 
 
 An invalid or void bond for title. Belt 
 V. Coats, 56 Miss. 776. See Stamper v^ 
 Griffin, 20 Ga. 312; Griffin v. Stamper, 
 17 Ga. 108. 
 
 An ancient deed accompanied with 
 possession is evidence of color of title 
 without proof of its execution. Davis v. 
 Higgins, 91 N. Car. 382. See No.wlinw. 
 Reynolds, 25 Gratt. (Va.) 137. 
 
 A mortgagee's deed. Stevens w. Brooks, 
 24 Wis. 326. Also a quitclaim deed 
 which conveys no interest. McCarney 
 V. Higdon, 50 Ga. 629; Minot v. Brooks,. 
 16 N. H. 374. 
 
 A deed without a seal. Barger v.. 
 Hobbs, 67 111. 592. See Pillow v. Rob- 
 erts. 13 How. (U. S ) 472. 
 
 An administrator's sale, under power,. 
 if a deed is executed. Livingston v. 
 Pendergast, 34 N. H. 544. Or if made- 
 without due authority of law, if all the 
 parties to it supposed it was authorized, 
 Crispen v. Hannavan, 50 Mo. 536. 
 
 Or a guardian's deed, although the 
 decree of sale is void. Molton v. Hen- 
 derson. 62 Ala. 426. 
 
 The heirs of a party who held under 
 claim of title. Teabout v. Daniels, 38. 
 Iowa, 158. 
 
 A deed by the husband of a life ten- 
 ant given after her death. Forest v. 
 Jackson, 56 N. H. 357. 
 
 A void decree of court. Huls v. Bun- 
 tin. 47 111. 396; Whiteside v. Singleton, 
 Meigs (Tenn.), 207. Compare Melia a.. 
 Simmons, 45 Wis. 334. 
 
 A void patent for land. Logan ». 
 Jelks, 34 Ark. 547. Or certificate. Hanni- 
 bal, etc., R. Co. I/. Clark. 68 Mo. 371. 
 
 A deed made by an assumed agent in 
 his own name. - Payne j'. Blackshear, 52: 
 Ga. 637. 
 
 A deed conveying a life estate is color 
 of title, and, when accompanied by ad- 
 verse possession for the required time, 
 will ripen into a good' title to the life 
 estate so granted. Staton v. Mullis, 92 
 N. Car. 623. 
 
 I C. of L. — 19 
 
 377 
 
Color of Title. 
 
 ADVERSE POSSESSION. 
 
 Good Faitli. 
 
 of his title, or that he had any title. It is good faith in claiming 
 possession and title, i.e., a real intention to claim the possession as 
 his own, distinct from, and hostile to, the title of the true owner. 
 
 A deed given under a special act of the 
 legislature, which act is held unconstitu- 
 tional and void. Fagan v. Rosier, 58 
 111. 84. 
 
 A claim based upon condemnation of 
 land, although the proceedings are de- 
 clared void. Mississippi, etc., R. Co. v. 
 Devaney, 42 Miss. 555. 
 
 A record of sale kept by a sheriff. 
 Field V. Boynton, 33 Ga. 239. 
 
 If a husbatfd, seized as tenant by cour- 
 tesy, give a deed in fee, and the grantee 
 enter and continue in possession, claim- 
 ing to own the whole estate absolutely, 
 such possession will be regarded as 
 adverse to the wife, and those claiming 
 under her, from the period of the hus- 
 band's death. Constantine v. Van 
 Winkle, 6 Hill (N. Y.), 177. See Mel- 
 ius V. Snowman, 21 Me. 201; Bruce v. 
 Wood. I Mete. (Mass.) 542; s. c, 35 
 Am. Dec. 380; Miller v. Schackleford, 
 3 Dana (Kv.), 289; Meraman v. Caldwell, 
 8 B. Mon.'(Ky.) 32. 
 
 What does not constitute Color of Title. 
 — The record of a survey does not of 
 itself constitute color of title. Atkinson 
 V. Patterson, 46 Vt. 750. 
 
 An executory contract does not con- 
 stitute color of title. Rigor v. Frye, 62 
 111. 507. See Executory Contract, 
 ante^ p. 229. 
 
 The assignment of homestead does 
 not pass title. Keener v. Goodson, 89 
 N. Car. 275; Littlejohn v. Egerton, 77 
 N. Car. 379; Gheen v. Summey, 80 N. 
 Car. 187; Grant v. Edwards, 86 N. Car. 
 468. 
 
 A void judgment of the court. Melia 
 V. Simmons, 45 Wis. 334. Compare 
 Huls V. Buntin, 47 111. 396; Whiteside zi. 
 Singleton. Meigs (Tenn.), 207. 
 
 A tax certificate. McKeighan v. Hop- 
 kins, 14 Neb. 361; Bride !<. Watt, 23 111. 
 
 507- 
 
 An invalid tax lease. Bensel v. Gray, 
 6 J. &S. (N. Y.)447. 
 
 A deed signed by one as "agent." 
 Simmons v. Lane, 25 Ga. 178. 
 
 A sale of the life estate, as against the 
 reversioner. Dewey v. McLain, 7 Kan. 
 1262; s. c, 12 Am. Rep, 418; Jackson 
 V. Schoonmaker, 4 Johns. (N. Y.) 390; 
 Hall V. Vandergrift, 3 Binn. (Pa.) 374, 
 See Life Estate, infra. 
 
 An instrument in which the grantor 
 admits title in another, will not give 
 color of title. Simmons v. Lane, 25 Ga. 
 178. 
 
 A deed which does not contain the de- 
 scription of the land. Humphries v. 
 Hoffman, 33 Ohio St, 395. 
 
 Although a pre-emption claim might 
 be, in the language of the act, such " evi- 
 dence or right to land, recognized by the 
 laws of this government," as would 
 maintain trespass to try title, yet, until 
 perfected, it is neither such title nor color 
 of title as can support limitation. Bu- 
 ford V. Bostwick, 58 Tex. 63; Clark v. 
 Smith, 59 Tex. 275. 
 
 One who has color of title of land, sub- 
 ject to a judgment lien, holds adversely 
 to the judgment creditor. Sanders z/. Mc- 
 Affee, 42 Ga. 250. 
 
 Proceedings in administering, settling, 
 and assigning the estate of a person who, 
 though represented to have deceased, 
 was and still is alive, are absolutely void 
 for all purposes; and an entry and con- 
 tinuous occupation under claim of title, 
 exclusive of any other right, founded upon 
 the judgment of the county court in such 
 a case, would not bar an action to re- 
 cover the land. Melia v. Simmons, 45 
 Wis. 334. 
 
 A deed by one to land which is in the 
 adverse possession of another is void as 
 against such adverse claimant. When by 
 written agreement between opposing 
 counsel, it is admitted that " the defend 
 ant was in the actual possession 'of the 
 land sued for, claiming the same ad- 
 versely to the plaintiff and all others," 
 this court cannot infer that the defendant 
 was a trespasser. B. makes a deed to 
 land to D., while N. is in adverse pos- 
 session thereof. Held, that the deed is 
 only void as to N., and as against him 
 the title still remains in B., who may sue 
 for and recover the land; that such re- 
 covery will inure to the benefit of D., as 
 the deed from B. to D. is valid as be- 
 tween them. Nelson v. Brush, S. C. 
 Fla., June 17, 1886. 
 
 A and B, as administrators of C, en- 
 tered into a written agreemeiit to partition 
 lands held in common. B had not ob- 
 tained an order of court. Held, that A 
 had color of title. Shiels v, Lamar, 58 
 Ga. 590. 
 
 Where the parties to a deed undertook 
 by verbal contract to rescind the deed, 
 and the grantor thereafter remained' in 
 the actual possession of a part of the 
 land, claiming title under the rescission, 
 held, that he was in under color of title, 
 and that his possession extended to the 
 
 378 
 
Color of Title. 
 
 ADVERSE POSSESSION. 
 
 Parol Agreement, 
 
 If that was not his real intention, there is an absence of an indis- 
 pensable element of adverse possession. Fralid is not to be pre- 
 sumed ; its existence must be proved. ^ 
 
 35. Under Parol Agreement. — A parol agreement may constitute 
 a sufficient color of title.* 
 
 whole tract described in the deed. Hughes 
 u. Israel, 73 Mo. 538. 
 
 When Possession is Tortious. — Where 
 possession under a color of title has been 
 adjudicated to be a trespass, subsequent 
 possession will be tortious. Presley v. 
 Holmes, 33 Tex. 476. 
 
 1. Dothard v. Denson, 72 Ala. 541; 
 Stubblefield v. Borders, 92 111. 279; Smith 
 V. Ferguson, gi 111. 304; Russell v. Man- 
 dell. 73 111. 136; Hardin v. Gouverneur, 
 6g 111. 140; Brooks v. Bruyn, 35 111. 394; 
 Read v. Howe, 49 Iowa, 65; Brown v. 
 King, 5 Mete. (Mass.) 173; Crispen v. 
 Hannavan, 50 Mo. 536; McMullin v. Er- 
 win, 58 Ga. 427; Newton v Mayo, 62 
 Ga. 11; Magee v. Magee, 37 Miss. 138; 
 Robertson v. Wood, 15 Tex. i; s. c, 65 
 Am. Dec. 140; Walbrunn v. Ballen, 68 
 Mo. 164; Texas Land Co. v, Williams, 
 51 Tex. 51. 
 
 A bona-fiJe occupant or possessor has 
 been defined to be "one who not only 
 honestly supposes himself to be vested 
 with the true title, but is ignorant that 
 the title is contested by any other person 
 claiming a superior right to it." Green v. 
 Biddle. 8 Wheat. (U. S.) i; Cole z/. John- 
 son, 53 Miss. 94; Gordon v. Tweedy, 74 
 Ala. 233. 
 
 Active or constructive notice of irreg- 
 ularities does not necessarily impute bad 
 faith to the party chargeable with notice. 
 Davis V. Hall. 92 111. 8";. Compare Bow- 
 man 't. Wettig. 39 III. 416; Stubblefield 
 ■V. Borders, 92 III. 279. 
 
 The words "good faith" in the statute 
 must receive a practical common-sense 
 construction. Winters v. Haines. 84 
 
 in. 585. 
 
 It does not imply or involve a belief on 
 the part of the possessor in the strength 
 or validity of his title. Dothard v. Ben- 
 son, 72 Ala. 341. 
 
 Failure to record a deed which con- 
 stitutes the color of title is not a pre- 
 sumption of bad faith. Rawson v. Fox, 
 55 111. 200. 
 
 Payment 01 taxes, while color of title 
 remains in party acquiring it' in bad 
 faith avails nothing. Hardin v. Crate, 
 78 111. 533- 
 
 The assessment to a party anil pay- 
 ment by him of taxes are evidence on 
 the question of the good faith of another 
 in entering upon land under color of 
 title, in the light of other circumstances 
 
 tending to show a disclaimer of title by 
 the latter. Gaines v. Saunders, 87 Mo. 
 557. 
 
 The fact that a deed did not recite a 
 consideration is not necessarily incon- 
 sistent with " intrinsic fairness and 
 honesty," and it may constitute a link in 
 a chain of title from and under the sov- 
 ereignty of the soil. Such a bond may 
 constitute such "color of title" as would 
 sustain the defence, by one in possession 
 of the land, under the statute. Downs v. 
 Porter, 54 Tex. 59. 
 
 If the grantee knew that the grantor 
 was a mere squatter, his conveyance will 
 afford him no color of title. McCarny 
 V. Higdon, 50 Ga. 629. Or if he knew 
 that the grantor had no title to convey, 
 or if he obtained the deed by fraud. 
 Saxton V. Hunt, 20 N. J. L. 487.V Com- 
 pare Qoxn^Xms V. Giberson, 25 N. J. L. i. 
 
 What is good faith in a party claiming 
 under color of title is a question for the 
 jury. Wright v. Mattison, 18 How. (U. 
 S.) 50. See, generally, Hardin v. Crate, 
 78 111. 533; Smith V. Ferguson, 91 111. 
 304; Russell V. Mandell, 73 111. 136; 
 McConnel v. Street, 17 111. 253; McCagg 
 v. Heacock, 34 111. 476; Hodgden v. Hen- 
 richsen, 85 111. 259; Hardin v. Gouvener, 
 69 III. 140; Paris V. Lewis, 85 111. 597; 
 Rawson v. Fox, 55 111. 200; Milliken v. 
 Martin, 66 III. 13; Gaines v. Saunders, 
 87 Mo. 557; Crispin v. Hannavan, 50 
 Mo. 536: Hanna v. Renfro, 32 Miss. 
 125; Wales V. Smith, 19 Ga. 8; Green v. 
 Kellum, 23 Pa. St. 254; s. c, 62 Am. 
 Dec. 332; Lea v. Polk Co., 21 How. 
 (U. S ) 50. 
 
 2. In Niles v. Davis, 60 Miss. 750, the 
 court said: "Though the complainant 
 has no written deed or contract to sup- 
 port her claim to the property, she is in 
 under a parol agreement, which is good 
 as color of title " See Magee v. Magee, 
 37 Miss. 138; Gladney v. Barton, 51 
 Miss. 216; Davis v. Bowmar, 55 Miss. 
 671; Rannels v. Rannels, 52 Mo. 108; 
 Green v. Kellum, 23 Pa. St. 254;' s. t., 
 62 Am. Dec. 332; McClellan v. Kellog, 
 17 111. 498, and cases cited; Baker v. 
 Hale, 6 Baxt. (Tenn.) 46 ; Teabot v. 
 Daniels, 38 Iowa, 158; McCall v. Neely, 
 3 Watts (Pa.), 6g. Compare Osterman v. 
 Baldwin, 6 Wall. (U. S.) 116; Hamilton 
 V. Wright, 30 Iowa, 480; Cook v. Long, 
 27 Ga. 260. 
 
 379 
 
Color of Title. 
 
 AD VERSE POSSESSION. 
 
 Gift. 
 
 36. Gift. — Possession of land by a donee, under a mere parol 
 gift, accompanied with a claim of right, is an adverse holding as 
 against the donor, which, if continued without interruption, is pro- 
 tected by the statute of limitations, and matures into a good title. 
 That such a parol gift conveys no title, and only operates as a 
 mere tenancy at will, capable of revocation or disaffirmance by the 
 donor at any time before the bar is complete, is immaterial ; it is 
 evidence of the beginning of an adverse possession by the donee, 
 which can only be repelled by showing a subsequent recognition 
 of the donor's superior title. ^ 
 
 In Rannels v. Rannels, 52 Mo. 108, 
 the court held that where a man made a 
 verbal gift of a defined tract of land to 
 his sister, had it surveyed for her, and 
 put her in the possession under this sur- 
 • vey and the descriptions in his own deed, 
 she was in possession of the whole tract 
 under color of title. In Bell v. Long- 
 worth, 6 Ind. 273, the court, while deny- 
 ing the right of a mere intruder to ex- 
 tend his possession beyond the limits of 
 his inclosure, use this language: " But 
 when a party is in possession, pursuant 
 to a state of facts which of themselves 
 show the character and extent of his 
 entry and claim, the case is entirely dif- 
 ferent; and such facts, whatever they 
 may be in a given case, perform sufB- 
 ciently the office of color of title. They 
 evidence the character of the entry and 
 the extent of the claim, and no color of 
 title does more." See Van Cleave v. 
 MiUiken, 13 Ind. 105. 
 
 Where the parties to a deed undertook 
 by verbal contract to rescind the deed, 
 and the grantor thereafter remained in 
 the actual possession of a part of the 
 land, claiming title under the rescission, 
 held, that he was in under color of title, 
 and that his possession extended to the 
 whole tract described in the deed. 
 Hughes V. Israel, 73 Mo. 538. 
 
 A parol vendee of land may. as against 
 the vendor, acquire by adverse posses- 
 sion, a title coextensive wi'h the bound- 
 aries of the land, though the vendee's 
 ictual possession extend to only a part 
 of the tract. And after such possession 
 has ripened into a perfect title, the ven- 
 dee may assert and maintain his title by 
 a bill to enjoin a sale under an execution 
 issued upon a judgment against the ven- 
 dor, even though the judgment may 
 have been rendered and become a lien 
 before such title became perfect. Niles 
 V. Davis, 60 Miss. 750. 
 
 Proof of a verbal sale of the interest 
 of one of the heirs to an estate to another 
 of the heirs, followed by twenty years' 
 adverse possession in such other heir. 
 
 held to create a sufficient title in the 
 latter. Hyne v. Osborn, 28 N. W. 
 Repr. (Mich.) 81. 
 
 Where both parties to an oral agree- 
 ment to exchange lands have taken pos- 
 session thereunder, the possession of 
 each is adverse to the title of the other. 
 Bartlett v. Secor, 56 Wis. 520. Compart 
 Adams v. FuUam, 47 Vt. 558. 
 
 In the absenceiof a written instrument 
 to define the limits of the adverse claim, 
 there must be some visible acts, sighs, or 
 indications which are apparent to all, 
 showing the extent of the boundaries ,of 
 the land claimed to amount to color of 
 title. Cooper v. Ord, 60 Mo. 420. 
 
 If two adjacent or coterminous propri- 
 etors agree upon and establish a dividing- 
 line between their premises, and actually 
 claim and occupy the land on each side 
 of that line continuously for twenty 
 years, such possession will be adverse 
 and confer a title by prescription. Bader 
 V. Zeise, 44 Wis. 96; Tobey v. Secor, 60 
 Wis. 310; Donohue v. Thompson, 60 
 Wis. 500. 
 
 1. Vandiveer v. Stickney, 75 Ala. 225, 
 Potts V. Coleman, 67 Ala. 221; Collins v.. 
 Johnson, 57 Ala. 304; Graham v. Craig,, 
 81* Pa. St. 465; Sumner v. Stevens, 6 
 Mete. (Mass.) 337; Ashley v. Ashley, 4 
 Gray (Mass.), 197; Clark v. Gilbert, 3^ 
 Conn. 94; Bartlett v. Secor, 56 Wis. 520. 
 See Hawkins v. Hudson, 45 Ala. 482. 
 Compare Rannels v. Rannels, 52 Mo. 112, 
 as to a gift affording color of title. 
 
 A deed of gift made by a parent to his- 
 children and their heirs, for the considera- 
 tion of natural love and affection, con 
 tained a warranty of title, but a reserva- 
 tion in the following language: " Hereby 
 expressly reserving to myself the right to 
 manage and control said land and prem- 
 ises, and have, enjoy, and dispose of the 
 occupancy, rents, and profits of said lands 
 and premises for and during ray natural 
 life." Held, that the deed conveyed to. 
 the heirs an estate in remainder, to take 
 effect on the death of the grantot, in 
 vyhom the deed p' -served a life estate. 
 
 280 
 
Color of Title. 
 
 ADVERSE POSSESSION. 
 
 XTnder Mistake. 
 
 37. Under Mistake. — Land which is held in good faith under a 
 mistake as to descriptions or informality in the execution of the 
 
 The. possession of such land by the 
 grantees during the life of the father 
 must be regarded as in harmony with 
 the deed, and will be presumed to be the 
 possession of the grantor, and no limita- 
 tion will run in their favor. Bombarger 
 V. Morrow, 6i Tex. 417. 
 
 In order to clothe children with a pos- 
 sessory right to land, under the statute 
 of limitations, into the possession of 
 which they had been put by their parent, 
 it must be shown that there was an actual 
 gift, and a continuous adverse holding 
 for the required period without break or 
 recognition of the parent's title, and there 
 can be no adverse holding under a fa- 
 ther's will which only takes effect at his 
 death. Jordan u. Maney, 10 Lea(Tenn.), 
 
 135- 
 
 Several parties signed an agreement 
 to form a joint-stock company to build a 
 public hall, and a parol gift of land hav- 
 ing been made to them for the purpose, 
 they took possession thereof, and com- 
 menced building. Afterward, a corpo- 
 ral ion was formed, in pursuance of 
 the agreement, to which the possession 
 was transferred. In an action of eject- 
 ment by the corporation, in which it ap- 
 peared that there had been a continuous 
 adverse possession by the parties signing 
 the written agreement and the corpora- 
 tion, for more than five years before the 
 ouster held, that the plaintiff was enti- 
 tled 10 recover. Bakersfield, etc., Assoc. 
 V. Chester, 55 Cal. 98. 
 
 The defendant showed that he had en- 
 tered into possession in 1854 under an 
 alleged parol gift from C, who was his 
 father, who was then unembarrassed and 
 had remained in uninterrupted posses- 
 sion for more than twenty-one years 
 from his father's death. The court di- 
 rected a 'verdict for plaintiff on the 
 ground that the evidence of defendant 
 was insufficient to take the case out of 
 the statute of frauds. Held, that this was 
 error; that even though the evidence of 
 the parol gift was insufficient to establish 
 a good title, the evidence of adverse pos- 
 session should have carried the case to 
 the jury. Campbell v. Broden, 96 Pa. 
 St. 388. 
 
 A daughter, under a parol gift of her 
 father, entered into possession of a tract 
 of land in 1856, and continued to occupy 
 the same ever since. Prior to the death 
 of her husband, in 1862 or 1863, the taxes 
 were paid in his . name, and after that in 
 
 her own name, during all which time her 
 nephew, the only other heir, treated the 
 land -as belonging to her, and never 
 claimed any interest therein, and when 
 going into bankruptcy did not schedule 
 any interest in the same. Held, that not 
 only the nephew was estopped from claim- 
 ing any interest in the land, but that a pur- 
 chaser of his assignee was equally con- 
 cluded, and barred of any right of entry. 
 Stewart v. Duffy, 116 111. 47. 
 
 A mortgage of the land by the donor 
 to a stranger, during adverse possession 
 by the donee, is void, although the donee 
 may know that his title is defective, and 
 the mortgagee has no actual notice of 
 the adverse holding. 
 
 The fact that the mortgagor was, in 
 such case, in the temporary occupancy of 
 a portion of the land, at the time of the 
 execution of the mortgage, is immaterial, 
 if he entered after the commencement of 
 the donee's adverse possession, and holds 
 as a mere tenant of the latter, fully recog- 
 nizing his title as landlord and owner. 
 Vandiveer v. Stickney, 75 Ala. 225. 
 
 A father moved away, leaving a son in 
 possession, who always asserted his title, 
 saying his father gave him the farm. 
 Held, that his possession was adverse to 
 the other heirs of the father. Jackson v. 
 Whitbeck, 6 Cow. (N. Y.) 632. 
 
 When a son enters into the possession 
 of lands, under a parol gift from his fa- 
 ther, he is a mere tenant at will; and his 
 possession, however long continued, does 
 not become adverse, until asserted so 
 openly and notoriously as to raise the pre- 
 sumption of notice to his father; and if, af- 
 ter the death of his father, he joins with the 
 other administrators in obtaining an or- 
 der for the sale of the lands, and becomes 
 himself the purchaser at the sale, this is 
 a distinct recognition of the father's title, 
 and his subsequent possession is held in 
 subordination to it as purchaser. Boykin 
 V. Smith, 65 Ala. 294. 
 
 Advancement by Parol. — When a father 
 putshis son in possession of land, intend- 
 ing it as a gift or advancement, the inten- 
 tion resting only in parol, a mere tenancy 
 at will is created; and such possession 
 cannot become adverse, except by a dis- 
 solution of the tenancy, and an open, 
 clear, positive, continuous disavowal of 
 the title of the father, and the assertion 
 of a hostile title which is brought to his 
 knowledge. Potts v. Coleman, 67 Ala. 
 
 321 
 
 381 
 
Color of Title. 
 
 ADVERSE POSSESSION. 
 
 Under Mistake. 
 
 deed will be held adversely, and a title will be acquired by limita- 
 tion. ^ (See also BOUNDARIES, infra.) 
 
 1. French v. Pearce, 8 Conn. 430; s. 
 c, 21 Am. Dec. 680; Walbrun v. Batten, 
 
 63 Mo. 164. Compare Dow v. McKenney, 
 
 64 Me. 'I38. 
 
 "The rule may be said to be, accord- 
 ing to the decided cases, that if a person 
 enters upon land under color of title, and 
 takes possession of lands not embraced 
 therein, with the intention of possessing 
 the whole, he is treated as being in pos- 
 session of the whole ; but if he enters 
 upon a certain part, with the intention of 
 possessing such part only, his possession 
 is confined to that part." Wood on Lim. 
 § 263; citing Bodley v. Cogshill, 3 A. K. 
 Marsh. (Ky.) 615; Mode v. Loud, 64 N. 
 Car. 433; Schneider v. Batsch, go 111. 
 577; Smith V. Morrow, 5 Litt. (Ky.) 210; 
 McKinney v. Kenney, i A. K. Marsh 
 (Ky.),46o. 
 
 Where one enters upon land not 
 covered by his title through mistake, he 
 only acquires possession of what he 
 actually occupies. Napier v. Simpson, i 
 Tenn. 453. 
 
 Where one by mistake takes possession 
 of a lot adjoifting the one that he re- 
 ceived a deed for, held, that such pos- 
 session ripened into a title, though it ap- 
 peared that there was a mistake, either 
 in the deed or in taking of possession. 
 Ricker v. Hubbard, 73 Me. 105. 
 
 A is the owner of the west half of a 
 certain section of land, and B is the 
 owner of the east half of the same sec- 
 tion. B has been in possession of a 
 part of the west half for more than ten 
 years (the period necessary to establish 
 a title by adverse possession), claiming 
 title thereto in the belief that it was in 
 the east half, and not intending to claim 
 any part of the west half, but recogniz- 
 ing A's title to all of that half. , Held, 
 that the possession of a part of the west 
 half by B has been adverse, and vests 
 him with the title to that part as against 
 A, though he has claimed it in the mis- 
 taken belief that it was in the east half, 
 and embraced within the calls of his 
 deed thereto. Metcalfe v. McCutchen, 
 60 Miss, 145. Compare Grube v, Welles, 
 34 Iowa, 148; Napier v. Simpson, I 
 Tenn. 453. 
 
 A- mistake in the description in a deed 
 does not prevent the grantee from ac- 
 quiring title to the land intended to be 
 conveyed. Bean v. Bachelder, 74 Me. 
 202. 
 
 J., owning a lot of land on the south 
 side of Green Street, in P., with a front- 
 age of one hundred and twenty-six feet, 
 
 conveyed a piece thereof with a frontage 
 of sixty feet to the defendant, the Jatier 
 supposing that by the terras of his deed 
 his lot extended to a certain fence which 
 would give him a frontage of sixty-six 
 feet. Soon after the delivery of his 
 deed, the defendant entered, occupied, 
 and cultivated the lot to the fence for 
 more than twenty consecutive years. 
 Held, that if the defendant claimed title 
 to the fence during his entire occupation, 
 his title ripened into an absolute title by 
 disseisin, although he was mistaken as to 
 the true bound. Hitchings v. Morrison, 
 72 Me. 331. 
 
 Where there is a defective or errone- 
 ous description of land sold at sheriff's 
 sale, and possession is taken and held for 
 ten years thereunder, the title of the pur- 
 chaser will be protected by the statute of 
 limitations. Souder v. Jeffreys, 8 N. 
 East. Repr. 288. 
 
 A conveyance of land in which A. 
 (then about fifteen years old) was named 
 as grantee was taken by his father, C. who 
 paid for the land, had the deed recorded, 
 and thereafter retained possession of the 
 instrument until his death, twenty-four 
 years later. The son did not know of 
 the existence of a deed in which he was 
 named as grantee until after his father's 
 death. Upon evidence tending strongly 
 to show that the father claimed that there 
 was a mistake in the deed, in that he 
 should have been named as grantee 
 instead of his son; that he attempted to 
 correct the mistake after the deed was re- 
 corded; that he took possession of the 
 land, paid the taxes, exercised many acts 
 of ownership, claimed the land as his 
 property, contracted to sell it, and finally 
 conveyed it in his own name after having 
 had possession more than twenty years, 
 held io have been a question for the jury 
 whether the original conveyance was in- 
 tended by the parties thereto to run to 
 the son. and, if so, whether it was 
 delivered to and accepted by the father 
 for the benefit of the son. Such evidence 
 was sufficient to overcome the presump- 
 tion from the record that the deed was 
 duly delivered to the grantee named. 
 Cross V. Barnett, 65 Wis. 431. 
 
 Where the owner of a city lot under- 
 takes to erect a building upon his own 
 ground, but by inadvertence and igno- 
 rance of the true line of his lot, places a 
 portion of the wall four inches over the 
 dividing line and upon the adjoining lot, 
 but with no intention then or afterward 
 to claim any portion of such adjoining 
 
 283 
 
Color of Title, 
 
 ADVERSE POSSESSION. 
 
 Lost Deed. 
 
 38. Lost Deed. — A deed executed and delivered, but subse- 
 quently lost, gives color of title ; and actual possession of part of 
 a lot, claiming possession of the whole under such lost deed, is 
 equal to actual possession of the entire lot without color of title 
 to any part of it.^ 
 
 Deed not recorded. — An unrecorded deed will constitute color 
 of title.'-^ 
 
 lot as his own, and the adjoining lot- 
 owner had no knowledge of such en- 
 croachment, the possession thus taken 
 will not be adverse. Winn v. Abeles, 35 
 Kan. 85. 
 
 Where one enters under color of title, 
 but by mistake locates upon land not in- 
 cluded in the boundaries described in 
 his deed, he will not have the benefit of 
 constructive possession. Napier z/. Simp- 
 son, I Tenn, 453. But will acquire seisin 
 only by actual occupation. Holton v. 
 Whitney, 30 Vt. 410; St. Louis Univer- 
 sity V. McCune, 28 Mo. 481. 
 
 Where the occupation is by mistake or 
 ignorance it will not be adverse. Thomas 
 V. Babb, 45 Mo. 384. 
 
 A, holding a conveyance from B, by 
 mistake entered upon another tract be- 
 longing to B. Held, that A's possession 
 is in subordination to B, and not ad- 
 verse. Farish v. Coon, 40 Cal. 33. 
 
 Where a deed by mistake misdescribes 
 the land, and the vendor afterwards cor- 
 rects by executing a new deed, color of 
 title will run from date of last deed. 
 Weaver v. Wilson, 48 111. 125. 
 
 Mere occupation by inadvertence or 
 mistake without any intention to claim 
 title may not be a disseisin, as where a 
 fence is erroneously erected not on the 
 dividing line. Abbott v. Abbott, 51 Me. 
 575. See Boundaries AND Fences, ante, 
 p. 248. 
 
 In St. Louis University v. McCune, 28 
 Mo. 481. an alleged encroachment beyond 
 the boundary line was under considera- 
 tion, and the court held that if the party 
 erected an improvement accidentally 
 upon the land of another through mis- 
 take or ignorance of the correct line di- 
 viding the tracts, and without intending 
 to claim beyond the true line, the occu- 
 pation thus taken and the possession 
 which followed did not work a disseisin. 
 
 In Hitchings v. Morrison, 72 Me. 331, 
 a case where a party claimed title to a 
 strip upon an adjoining lot upon the 
 basis of adverse possession, it was held 
 that if the occupation was not accom- 
 panied by a claim of title in fact, but was 
 merely inadvertence or mistake as to the 
 extent of his line, without intention to 
 claim title to the extent of his occupa- 
 
 283 
 
 tion, but only to the bounds described in 
 his deed, then it was not adverse and 
 would not give title. 
 
 In Howard v. Reedy, 29 Ga. 152; s. i.., 
 74 Am. Dec. 58, it was held that a pos- 
 session originating in and continuing un- 
 der a mistake or misapprehension as to 
 the true lines dividing two lots of land, 
 will not ripen into statutory title. Sec 
 Ricker v. Hibbard, 73 Me. 105; Browa 
 V. Cockerall, 33 Ala. 38; Enfield v. Day, 
 7 N, H. 459; s. c, 28 Am. Dec. 360; 
 Riley v. Griffin, 16 Ga. 141 ; s. c, 60 Am. 
 Dec. 726; Brown v. Gray, 3 Greenl. (Me.) 
 126; Walbrunn v. Ballen, 68 Mo. 164. 
 
 If the disseisor really believes that the 
 land belongs to him, the fact that he is 
 mistaken in his claim will not prevent 
 his holding being adverse. Faught v. 
 Holway, 50 Me. 24; Russell v. Maloney, 
 39 Vt. 583; Johnson v. Gorham, 38 Conn. 
 521; Robinson v. Phillips, 65 Barb. (N. 
 Y.) 418; 56 N. Y. 634. See Boundaries 
 AND Fences, ante, p. 248. 
 
 1. Harbison v. School Dist;, 4 Westn. 
 Repr. (Mo.) 705. 
 
 2. Bellows V. Jewell, 60 N. H. 420; 
 Minot V. Brooks, 16 N. H. 374; Chas- 
 tain V. Phillips, 11 Ired. (N. Car.) 225; 
 Hardin v. Barrett, 6 Jones (N. Car.), 159; 
 Krow V. Hinson, 8 Jones (N. Car.), 347; 
 Davis V. Higgins, 91 N. Car. 382; Raw- 
 son V. Fox, 65 111. 200; Dickinson v. 
 Bruden, 30 111. 279; Leaw. Polk Co. Cop- 
 per Co., 21 How. (U. S.) 493. 
 
 Where possession has been had under 
 a valid but unrecorded paper title for up- 
 wards of 20 years, it will be established 
 thereby as against a title derived from a 
 subsequent conveyance recorded first, 
 and the latter will be removed as a cloud 
 upon the former. Jaques v. Lester, 8 
 N. Eastn. Repr. 795. 
 
 The statute does not begin to run in 
 favor of the holder of a tax deed by 
 merely recording it. Baldwin v. Mer- 
 riam, 16 Neb. 199. 
 
 The recording of a tax deed of the 
 land, even if other lands were included 
 in the same deed, would be sufficient 
 claim of title to warrant the bringing of 
 ejectment against the grantee named in 
 such tax deed, unless he notified the per- 
 son holding the original title of his dis- 
 
Color of Title. 
 
 ADVERSE POSSESSION. 
 
 Tax Deed. 
 
 Tax Deed. — A tax deed which purports to convey the title of 
 Teal estate to the grantee constitutes color of title, although it 
 may be void.* 
 
 Payment of Taxes — Payment of taxes is not evidence of ad- 
 verse possession ;* but in Illinois and California it is a necessary 
 to perfect title.' 
 
 claimer of any interest in the land before 
 suit brought, and took the necessary steps 
 to disaffirm the apparent claim of title 
 that a recorded deed asserts. Hoyt v. 
 Southard, 58 Mich. 432. 
 
 1. Stubblefield v. Borders, 92 111. 284; 
 Coleman v. Billings, 89 111. 190; Hardin 
 V. Crate, 60 111. 215; Woodward v. 
 Blanchard, 16 111. 433; Edgerton v. Bird, 
 6 Wis. 527; s. c, 70 Ani. Dec. 473; Get- 
 ting V. Lane, 17 Neb. 77, 80; Haywood 
 V. Thomas, 17 Neb. 237; Chicago, etc., 
 R. Co. V. Alfree, 64 Iowa, 500; Colvin 
 V. McCune, 39 Iowa, 502; Hamilton v. 
 Wright, 30 Iowa, 490; Pugh v. Young- 
 blood, 69 Ala. 296; Dillingham 0. Brown, 
 38 Ala. 311; Hanna z;. Renfro, 32 Miss. 
 128; Hall V. Law, 102 U. S. 461. Compare 
 Waterson v. Devoe, i8 Kan. 223; Hall 
 V. Dodge, 18 Kan. 277. 
 
 Defendant look possession of the land 
 In question under a. tax deed, void be- 
 cause the land belonged to the United 
 States, and was not subject to taxation. 
 Plaintiff afterwards procured title from 
 the United States. But defendant con- 
 tinued in uninterrupted possession, un- 
 der his tax deed, for more than ten years 
 after plaintiff procured his title. Held, 
 that, although defendant's color of title 
 began while the government yet owned the 
 land, yet, as possession thereunder was 
 continued for more than ten years after 
 plaintiff acquired his title, plaintiff's right 
 of action to recover the land was barred 
 by the statute of limitations, though the 
 statute would not have run against the 
 governmeftt had the title remained in it. 
 vChicago, etc., R. Co. v. AUfree, 64 Iowa, 
 500. 
 
 It appeared that the tax deed under 
 which defendant claimed was void on its 
 face, and that the land had never been 
 actually occupied by any one. Held, that 
 the statute was no bar. Shoat v. Walker, 
 6 Kan. 65. 
 
 When the purchaser of lands sold for 
 taxes has continued in the open and con- 
 tinuous possession thereof, claiming title, 
 for the period of five years from the ex- 
 ecution of the deed of the judge of pro- 
 bate, the statute cuts off all inquiry as to 
 the regularity of the sale, and operates a 
 bar to an action brought for the recovery 
 of the land, whatever may be the recitals 
 
 of the deed, or however erroneous they 
 may be, or whatever may have been the 
 irregularities attending the sale. Pugh 
 V. Youngblood, 69" Ala. 296. 
 
 The use and occupation of the land by 
 the true owner for any portion of the 
 statutory period will bar the title of the 
 holder of a tax deed. Wilson v. Henry, 
 35 Wis. 241. 
 
 A tax deed made under a sale of 
 swamp land, which was exempt from tax- 
 ation, as belonging to a county, as well 
 as the deed from such purchaser, consti- 
 tutes color of title under the limitation 
 act of 1839. County of Piatt v. Goodell, 
 97 111. 84. 
 
 A survey of six hundred acres of un- 
 improved land was patented to A, B, C, 
 and D, in the proportion of 200, 100, 100. 
 and 200 acres, respectively, to be held 
 by them as tenants in common. Subse- 
 quently B's share was sold at a tax sale, 
 described as 100 acres, part of said sur- 
 vey, taxed in the name of B, but without 
 any further description. Held, that such 
 tax sale was void for want of description; 
 that one who holds such a tax title can- 
 not survey off to himself the quantity 
 called for in his certificate out of the 
 large tract, and, by an entry thereon, and 
 actual possession and improvement of 
 part only, claim to hold, by constructive 
 possession, to the boundaries of his sur- 
 vey. Humphreys v. Huffman, 33 Ohio 
 St. 395. 
 
 2. Sioux City, etc.. Land Co. v. Wil- 
 son, 50 Iowa, 422; Raymonds. Morrison, 
 59 Iowa, 371. 
 
 A claim under a'tax title is necessarily 
 hostile to the owner of the original title. 
 Sparrow v. Hovey, 44 Mich. 63. 
 
 3. Dryden v. Newman, 4 N. E. Repr. 
 768; Cooter V. Dearborn, 4 N. E. Repr. 
 (111.) 388; Holbrook v. Gouveneur, 3 N. 
 East'n Repr. (111.) 220; McNoble v. Jus- 
 tiniano, 11 Pac. Repr. (Cal.)742; Ross v. 
 Evans, 4 Pac. Repr. (Cal.) 443. 
 
 Where the record shows that both par- 
 ties in an action of ejectment have paid 
 the taxes on the land in suit for seven 
 years prior to the suit, without showing 
 which paid first, a defence is not made 
 out under the limitation law of 1839. 
 The burden of proof is upon the defend- 
 ant setting up the statute, to show that 
 
 284 
 
Color of Title. 
 
 ADVERSE POSSESSION. 
 
 Inyalid Conveyance. 
 
 39. Invalid Conveyance or Title. — Whatever may be the source 
 of the invalidity of a deed, if it purports to convey land, and in 
 form passes what purports to be the title, it gives color of title.^ 
 
 he paid such taxes before the plaintiff. 
 The party paying first in any year is the 
 one who has paid the taxes of that year. 
 Bolden v. Sherman. loi 111. 483. 
 
 The plaintiff claimed under a patent 
 from the State. More than five years 
 elapsed between the issuing of the patent 
 and the commencement of the action. The 
 defendant pleaded the statute of limita- 
 tions, and relied upon an adverse posses- 
 sion commencing before the patent is- 
 sued. It appeared from the evidence 
 that the plaintiff had paid the taxes upon 
 the land. The court instructed the jury 
 as to the proof required to make out an 
 adverse possession, and that in addition 
 to the fact of possession and its adverse 
 character, it was necessary for the de- 
 fendant to show that the taxes had been 
 paid by him. The jury rendered a ver- 
 dict in favor of defendant. Held, (i) that 
 the statute could not commence to run 
 until the issuing of the patent; (2) that 
 the possession of the defendant, even if 
 sufficient in other respects, was not ad- 
 verse because of his failure to pay the 
 taxes, the statute requiring it. O'Con- 
 nor V. Fogle. 63 Cal. 9. 
 
 Where the last payment of taxes on 
 unoccupied land is made some four 
 months less than seven years from the 
 first payment, but possession is not taken 
 under color of title until after the statu- 
 tory period has elapsed, held, a bar to 
 ejectment by owner of the paramount 
 title. Hurlbut v. Bradford, no 111. 397. 
 
 Where a defendant in ejectment shows 
 the payment of all taxes on the land, un- 
 der color of title, for seven consecutive 
 years while the land was vacant and un- 
 occupied and he is found or shown to be 
 in possession when the action was brought 
 it will be presumed that his possession 
 was under his color of title, especially 
 when that fact was not disputed on the 
 trial. Holbrook v. Gouveneur, 114 111. 
 623, 
 
 Where a party having color of title 
 shows the payment of all taxes on the 
 premises for seven successive years, by 
 the production of his tax receipts, showing 
 the date of each payment and the amount 
 thereof, this makes out a prima-facie de- 
 fence under the Limitation law of 1839. 
 which must prevail unless the plaintiff 
 shows that the taxes for some one of the 
 seven years were paid before the defend- 
 ant made his payment. The testimony 
 of the plaintiff, that he, by himself or 
 
 agent, paid the taxes upon the same land 
 for each of the same years, bufnot giving 
 the amount or date of any of his pay- 
 ments, will not rebut the defendant's 
 prima-facie case and defeat the opera- 
 tion of the statute. In an action of 
 ejectment for a strip of land, the defence 
 being the payment of taxes for seven 
 years under color of title, the defendant 
 admitted that the plaintiff had paid the 
 taxes for the same seven years, and un- 
 dertook to overcome the force and effect 
 of the admission by proving that he had 
 also paid taxes for the same years, but 
 failed to show whose payments for the 
 several years were first made. Held, 
 that the evidence was not sufficient to 
 overcome the admission. Such admis- 
 sion was held to impliedly concede that 
 the plaintiff's payments were first made, 
 otherwise there could be no taxes for him 
 to pay. Bolden v. Sherman, no III. 
 418. 
 
 The holder of claim and color of title 
 to vacant and unoccupied land, paid the 
 taxes thereon in November, 1839, and 
 soon after died. The receipts for the 
 taxes of 1840, 1842. and 1843 were in his 
 name, instead of being in the name of 
 the heir or heirs. Held, that these pay- 
 ments could not be presumed to have 
 been made by the heirs, or in his name 
 by some unknown person for them, and 
 without other evidence could not be 
 treated as payments by the owner of the 
 color of title. Hurlbut v. Bradford, no 
 111. 397. 
 
 A defendant in ejectment received a 
 warranty deed for the land in 1859, and 
 paid all taxes thereon for the years 1859 
 to 1878 inclusive, and the proof showed 
 it was timber land and was never inclosed, 
 but that he used it every year since the 
 date of his deed as occasion required 
 in procuring therefrom rails, firewood, 
 posts, Stc. Held, whether the land was 
 in possession, or vacant and unoccupied, 
 the bar of the statute was complete. 
 Walcott V. Gibbs, 97 111. 118. 
 
 Ejectment will lie where defendants' 
 claim of title consistsinhishavingrecord- 
 ed a tax-deed which he has obtained on 
 tfce premises, unless before suit brought 
 he has notified the holder of the original 
 title that he disclaims any interest and 
 takes steps to disaffirm the apparent 
 claim asserted by such record. Hoyt v. 
 Southard, 58 Mich. 432. 
 
 1. Moultonz'. Henderson, 62 Ala. 426; 
 
 385 
 
Color of Title. 
 
 AD VERSE POSSESSION. invalid Conveyance. 
 
 It is not necessary that the claim of title should be good, 
 
 McCarny v. Higdon, 50 Ga. 629; Payne 
 V. Blackshear, 52 Ga. 637; Moody v. 
 Fleming, 4 Ga. 115; s. c, 48 Am. 
 Dec. 2To; Whiteside v. Singleton, Meigs 
 (Tenn.) 207; Farrow v. Edmundson, 
 4 B. Mon. (Ky.) 605; s. c, 41 Am. 
 Dec. 250; Adams v. Alkire, 20 W. 
 Va. 480; Core v. Faupel, 24 W. Va. 238; 
 Shanks z/. Lancaster, 5 Gratt. (Va.) no; 
 s. c, 50 Am. Dec. 108; Nowlin v. Reyn- 
 olds, 25 Gratt. (Va.) 137; Hamilton v. 
 Boggess, 63 Mo. 233; Cofer v. Brooks, 
 20 Ark. 542; Elliott v. Pearce, 20 Ark. 
 508; Dorr z/. School Dist., 40 Ark. 237; 
 Chicago, etc., R. Co. v. Allfree, 64 Iowa, 
 500; Close V. Samm, 27 Iowa, 503; Van- 
 cleve V. Wilkinson, 13 Ind. 105; Kruse v. 
 Wilson, 79 111. 233; Russell v. Mandell, 
 73 111. 136; Mason v. Ayres, 73 111. 121; 
 Fagan v. Rosier, 68 111. 84; Rigor v, 
 Frye, 62 111. 507; Hinkley w. Green, 52 
 111. 223; Brooks V. Bruyn, 35 111. 394; 
 Edgerton v. Bird, 6 Wis. 527; s. c, 70 
 Am. Dec. 473; LaFrombois v. Jackson, 
 8 Cow. (N. Y.) 589; s.c, iS Am. Dec. 463; 
 Munro v. Merchant, 28 N. Y. 9; Thomp- 
 son V. Burhans, 79 N. Y. 93; Cornelius 
 V. Giberson, 21 N. J. L. i; Forest v. 
 Jackson, 56 N. H. 357; Livingston w. 
 Pendergast, 34 N. H. 544; Minot v. 
 Brooks, Its N. H. 374; Hall v. Law, 102 
 U. S. 461; Ewing V. Burnett, 8 Pet. 
 (U. S.)4i; Roberts v. Pillow, i Humph. 
 (U. S.) 624. Compare Hall v. Mooring, 
 27 La. Ann. 596; Simmons v. Lane, 25 
 Ga. 178; Field v. Boynton, 33 Ga. 239; 
 Marsh v. Wier, 21 Tex. 97; Hinest). Rob- 
 inson, 57 Me. 324; Moore v. Brown, 11 
 How. (U. S.) 424. 
 
 When a person enters upon unoccu- 
 pied land, under a defective title, and 
 holds adversely, if the true owner be at 
 the same time in actual possession of 
 part of the land, claiming title to the 
 wliole, he has the constructive posses- 
 sion of all the land not in the actual pos- 
 session of the intruder. Hunnicutt v. 
 Peyton, 102 U. S. 333; Bellis ». Bellis, 
 122 Mass. 414; Bradley v. West, 60 Mo. 
 33; Shultz V. Lindell, 30 Mo. 310; Bal- 
 lard V. Perry, 28 Tex. 347; Davis v. 
 Perley, 30 Cal. 630; Jakway v. Bar- 
 rett, 38 Vt. 316. 
 
 A conveyance, though invalid, may 
 ooerate as color of title, but it does not 
 draw with it constructive possession, and 
 does not. of itself,' tend to prove adverse 
 possession. Childress v. Calloway, 76 
 Ala. 130. 
 
 A tax deed void upon its face, or illegal- 
 ly issued, constitutes color of title. Col- 
 vin V. McCune, 39 Iowa, 502; McMillan 
 
 z;. Wehle, 55 Wis. 685; Lindsay v. Fry, 
 25 Wis. 460; Elliott V. Pearce, 20 Ark. 
 508; Coffer V. Brooks, 20 Ark. 542; Pugh 
 V. Youngblood, 69 Ala. 296; Rivers v. 
 Thompson, 43 Ala. 633; Dillingham v. 
 Brown, 38 Ala. 311; Haywood w. Thomas, 
 17 Neb. 237; Pillow V. Roberts, 13 How. 
 (U. S.) 472; Cowley v. Monson, 5 Fed. 
 Repr. 77g. 
 
 Also a deed without a seal. Barger v. 
 Hobbs, 67 111. 592. 
 
 A void mortgage foreclosure will give 
 color of title. » Mason v. Ayers, 73 111. 
 121; Hinkley f. Greene, 52 111. 223. 
 
 An invalid or informal sheriff's deed 
 will give color of title. Beverly w. Burke, 
 9 Ga. 440; s. c, 54 Am. .Dec. 351; Burk- 
 halter v. Edwards, 16 Ga. 593; Hester v. 
 Coats, 22 Ga. 56; Simmons v. Lane, 25 
 Ga. 178, Northrop v. Wright, 7 Hill 
 (N. Y.), 476; North v. Hammer, 34 Wis. 
 425; Bailey K. Doolittle. 24 111. 577; Fritz 
 V. Joiner, 54 111. loi; Riggs v. Dooley, 
 7 B. Mon. (Ky.) 236; Brien z;. Sargent, 
 13 La. Ann. 108. 
 
 A void patent may be used to give 
 color of title and fix the limits of posses- 
 sion. Logan V. Jelks, 34 Ark. 547; San- 
 ford V. Cloud, 17 Fla. 557. See Charle 
 V. Saffold, 13 Tex. 94; Wofford v. Mc- 
 Kinna, 23 Tex. 36; s. c, 76 Am. Dec. 56. 
 
 A deed from one having no title to the 
 land is color of title. Kennebec Purchase 
 V. Laboree, 2 Me. 275; s. c, ii Am. Dec. 
 79. Contra, if the grantee knew that the 
 grantor had no title to convey. Saxton 
 V. Hunt, 20 N. J. L. 487. 
 
 A sale which is afterwards avoided by 
 individual or judicial proceedings gives 
 color of title. Hamilton v. Wright, 30 
 Iowa, 480. Compare Presley v. Holmes, 
 .33 Tex. 476. 
 
 A deed under decree of a court of com- 
 petent jurisdiction, though the decree is 
 void, gives color of title. Huls v. Bun- 
 tin, 47 111. 396. 
 
 A deed made by a clerk or master in 
 equity, after he goes out of office, on a 
 sale made by him while in office, is color 
 of title, though not otherwise operative. 
 Williams v. Council, 4 Jones (N. Car.), 
 206. 
 
 So is an agreement of partition by an 
 administrator, although he acted without 
 an order of court. McMuUin v. Erwin, 
 58 Ga. 427. 
 
 An invalid sale under a trust deed 
 gives color of title. Gebhard v. Sattler, 
 40 Iowa, 152. 
 
 The deed of an infant is color of title, 
 Murry v. Shanklin, 4 D. & B. L. (N. 
 Car.) 286. 
 
 386 
 
Color of Title. 
 
 ADVERSE POSSESSION. invalid Conveyance. 
 
 or even believed to be good : it is enough if there be a real 
 
 In 1854 certain land belonging to C. 
 was levied upon and sold to satisfy a 
 judgment against him alone. In 1S56, 
 his wife executed a deed, in which he did 
 not join, to one claiming under the 
 sheriff's sale. In 1864 C. died, his wife 
 surviving. Action by the latter, in 1884, 
 against a remote grantee to recover one 
 third of the land. Held, that while her 
 deed was void, it was sufficient to convey 
 color of title; that the plaintiff's cause of 
 action to avoid the deed which gave color 
 of title accrued when her grantee took 
 possession under the deed in 1856. as 
 there was then an adverse possession of all 
 the land; also, that the defendant and his 
 grantors having been in possession more 
 than twenty years under color of title 
 conferred by the plaintiff's deed, the 
 action is barred by the statute of limita- 
 tions, the plaintiff's disability of cover- 
 ture not postponing the time when the 
 statute began to run. Wright v. Kleyla, 
 104 Ind. 223. See Hunter v. O'Neal, 4 
 Baxt. (Tenn.) 494. 
 
 A conveyance of land which is at the 
 time in the possession of a prior grantee, 
 holding under an instrument which, 
 though invalid as a conveyance, is color 
 of title, is inoperative and void as against 
 such adverse holder. Watson v. Man- 
 cill. 73 Ala. 600. 
 
 To avoid a deed to land executed by a 
 party out of possession, on account of 
 the adverse possession of a third party, 
 it is not required that the possession of 
 the latter should have been under a bona- 
 fide claim of right to the premises, or 
 under the honest belief that his title was 
 good; it is sufficient if he claimed in 
 independent right, adversely. Bernstein 
 V. Humes, 75 Ala. 241. 
 
 A deed executed by husband and vpife, 
 purporting to convey the homestead, but 
 without the necessary certificate of ac- 
 knowledgment showing the wife's volun- 
 tary assent and signature, is totally in- 
 operative and ineffectual as a conveyance 
 of title; but, possession being delivered 
 and held under it, it may constitute color 
 of title, and be admissible to show the 
 extent of the grantee's possession. Wat- 
 son V. Mancill, 76 Ala. 600. 
 
 A deed of conveyance of land in fee 
 executed by a married woman alone, 
 without any privy examination, is an 
 assurance of title purporting to convey 
 an estate in fee which will perfect the 
 title of an adverse holder of -land. The 
 disseisin occasioned by the possession of 
 the grantee of such a deed would be a 
 
 387 
 
 disseisin of the joint estate of husband 
 and wife, and their joint right of action 
 would be barred in seven years, and the 
 title of the husband not only barred, but 
 extinguished, and the heirs of the wife, if 
 she died before the husband, would have 
 only three years after her death and the 
 extinguishment of the husband's right 
 within which to bring suit for the recov- 
 ery of the land. Hanks. z*. Folsom, 11 
 Lea (Tenn.). 555. 
 
 Pi. feme covert died 1854. leaving a will, 
 which was admitted to probate, but was 
 not executed in due form to pass real 
 estate, because the consent of her hus- 
 band in writing was not annexed thereto, 
 and also because it was not executed 
 sixty days before her death. By said 
 will she devised a farm to her husband 
 for life, with remainder in fee to her 
 nephew. Under it her husband entered 
 into possession of the property, claiming 
 title as tenant for life, and so continued 
 in possession until 1868, when he united 
 with the nephew in a sale and convey- 
 ance to J., who thereupon entered upon 
 said property, and continued in posses- 
 sion up to 1882, when the heirs-at law of 
 the testatrix brought ejectment against 
 him. Held, that the claim of title and 
 possession of the husband as tenant for 
 life under the will, being hostile to the 
 title of the heirs-at-law, was as against 
 them adverse and exclusive. That the 
 purchaser from the husband and nephew 
 having immediately taken and held pos- 
 session under the conveyance to him, his 
 possession was added or tacked to the 
 possession of the husband, making a con- 
 tinuous adverse possession of more than 
 twenty years, which by the statute of 
 limitations was a flat bar to the right of 
 the plaintiffs as heirs-at-law. Hanson v. 
 Johnson, 62 Md. 25; ». c, 50 Am. Rep. 
 igg. Compare Silva v. Wimpenny, 136 
 Mass. 253. 
 
 Where a deed had but one subscribing 
 witness, the statute requiring two, held, 
 that title might be gained by adverse 
 possession. Lyles a. Kirkpatrick, g S. 
 Car. 265. 
 
 The title to the lands was in a trustee 
 for a lunatic. One claiming to be guard- 
 ian of the lunatic, but acting under a void 
 appointment, obtained an order of the 
 probate court for the sale of the lands, 
 and sold and conveyed them. The pur- 
 chaser, and those claiming under him, 
 had had possession of the lands under 
 claim of right and of ownership, for a 
 length of time sufficient to bar the right 
 
'Color of Title. 
 
 AD VERSE POSSESSION. interference of Title. 
 
 bona-fide purpose to assert and rely on it, as hostile to the true 
 owner. '^ 
 
 40. Interference of Title. — Where there is an interference be- 
 tween titles, if one of the adverse claimants is in possession of land 
 within the boundaries of his deed or grant, but not on any part 
 of the interlap, the statute does not begin to run against him. 
 But the moment he occupies the land included in the other's 
 grant, and holds possession, either by himself or another, the 
 statute commences to run.* 
 
 of entry under the statute. The whole 
 proceedings under which the sale and 
 conveyance were made were void, be- 
 cause the order appointing the guardian 
 was invalid and void. It was held, the 
 statute of limitations ran in favor of the 
 derivative purchaser, although the pos- 
 session of the irregularly appointed 
 guardian was but the possession of the 
 lunatic, in whose right he assumed con- 
 trol and made the sale. Moulton v. 
 Henderson, 62 Ala. 426. 
 
 Executor's sale. When, at a sale of 
 lands made by an executor under orders 
 •of the probate court, a conveyance is 
 m^de to the purchaser, without a report 
 or confirmation of the sale, without a 
 report that the purchase money had been 
 paid, and without an order of the court 
 to make titles, such a conveyance will be 
 ignored, and the purchaser does not hold 
 adversely, so that his possession will 
 ripen into a title by the expiration of ten 
 years. Casey v. Morgan. 67 Ala. 441. 
 
 An absolute nullity, as a void deed, 
 judgment, etc., will not constitute color 
 of title. Bernal v. Gleim, 33 Cal. 676. 
 See Simmons v. Lane, 25 Ga. 178; Marsh 
 V. Weir, 21 Tex. 97; Moore v. Brown, 
 II How. (U. S.) 424. Compare Pillow v. 
 Roberts, 13 How. (U. S.) 472, and cases 
 cite-d supra. . 
 
 1. Baucum v. George, 65 Ala. 259; Doth- 
 ard V. Denson, 72 Ala. 541 ; Humes v. 
 Bernstein, 72 Ala. 546; State v. Conner, 69 
 Ala. 212; GrifBn v. Stamper, 17 Ga. 108; 
 Campau v. Lafferty.jo Mich. 114; Smith v. 
 Ferguson, 91 111. 304; Caperton v. Greg- 
 ory, 11 Gratt. (Va.) 505; Jackson v. Brink, 
 5 Cow. (N. Y.) 483; Jackson u. Ellis, 13 
 Johns. (N. Y.) 118; Jackson v. Long, 7 
 Wend. (N. Y.) 170; Hilton v. Bender, 4 
 Thomp. & C. (N. Y.) 270; Leonard v. 
 Leonard, 10 Mass. 281; Covey v. Por- 
 ter, 22 W. Va. 121; Dalton v. Bank, 54 
 Mo. 105; Crispen v. Hannavan, 50 Mo. 
 536; Gregg V. Sayre, 8 Pet. (U. S.) 244; 
 Jackson v. Huntington, 5 Pet. (U. S.) 
 402; Cowly V. Mason, 5 Fed. Repr. 779; 
 s. c, 10 Biss. (U. S.) 182. Compare yi&xs\i 
 V. Weir, 21 Tex. 97" La Frombois v. 
 Jackson, 8 Cow. (N. Y.) 589; s. t., 18 
 
 Am. Dec. 463; Dufour v. Carapane, 11 
 Martin (La.), 715; Frique v. Hopkins, 4 
 Martin N. S. (La.). 715; Bonne z/.Powers, 
 3 Martin N. S. (La.) 462; Powell v. Har- 
 man, 2 Pet. (U. S.) 241. 
 
 However wrongful or fraudulent the 
 possession, or defective the title, an entry 
 under claim of exclusive title, founding 
 such claim upon color of title, and ac- 
 companied by the continued statutory 
 possession, constitutes an effective ad- 
 verse possession. 
 
 Humbert w. Trinity Church, 24 Wend. 
 (N. Y.) 587; Northrop -i^. Wright, 7 Hill 
 (N. Y.), 476; Bogardus v. Trinity Church, 
 4Sandf. Ch. (N. Y.) 633; Burhans v. Van 
 Zandt, 7 Barb. (N. Y.) 91; Moodv v. 
 Moody, 16 Hun (N. Y.), 189; Griffin v. 
 Stamper, 17 Ga. 108; Robbins v. Sackett, 
 23 Kan. 301. 
 
 A fraudulent grant of State land may 
 be color of title and become a good title 
 if the fraudulent grantee hold actual ad- 
 verse possession for seven years against 
 a senior gi-antee who has a right of entry 
 and a right of action to recover posses- 
 sion, and is under no disability mentioned 
 in the statutes. Oliver v. PuUam, 24 
 Fed. Rept. 127. 
 
 2. Coal Creek M. Co. v. Heck, 15 Lea 
 (Tenn.), 515. See Alden v. Grov6, 18 
 Pa. St. 377; Beaupland v. McKeen, 28 
 Pa. St. 124; s. c, 70 Am. Dec. 115; Hole 
 V. Rittenhouse, 37 Pa. St. 116; Cline v. 
 Catron, 22 Grattj (Va.) 378; Child v. 
 Kingsbury, 46 Vt. 47; Bunton v. Cs.rd- 
 well, 53 Tex. 408; Peyton v. Barton, 53 
 Tex. 298. 
 
 One in actual possession of land under 
 an older grant, which conflicts with a 
 junior grant, has constructive possession 
 of all the land in conflict, except such as is 
 in the actual possession of one claiming 
 under the junior title. Frisby v. Withers, 
 61 Tex. 134; Evitts v. Roth, 6l Tex. 
 81; Crispin v. Hannavan, 50 Mo. 536; 
 Hunnicutt v. Peyton, 102 U. S. 369; 
 Brimmer v. Proprietors, 5 Pick. (Mass.) 
 135; Winter v. Stevens, 9 Allen (Mass.), 
 529; Bellis V. Bellis, 122 Mass. 417; 
 Crispen u. Hannavan, 50 Mo. 536; 
 Hodges V. Eddy, 38 Vt. 344; Hammond 
 
 288 
 
Color of Title. 
 
 ADVERSE POSSESSION. 
 
 Conflicting Titles.. 
 
 A possession under a junior grant conflicting in part with a. 
 superior grant, but not on the lap or.conflict, will not bar the right 
 of the owner of such superior grant by limitation, but possession 
 under the junior grant, to put the statute of limitations in 
 motion, must be on the conflict, although the owner of the' 
 superior grant be not in possession of any part of his grant. ^ 
 
 41. Conflicting Titles. — Where two persons are in possession, 
 each claiming under color of title, the seisin will be deemed to 
 be in the one having the better or legal title.'-* 
 
 V. Ridgely.'S H. & J. (Md.) 245; s. c. 9 
 Am. Dec. 522; Burns v. Swift, 2 S. & R. 
 (Pa.) 439; Hall V. Powel, 4 S. & R. (Pa.) 
 456; s. c, 8 Am. Dec. 722. 
 
 A. and P. were respectively in the 
 actual possession of portions of a quar- 
 ter-section, lying to the north of the river 
 M., which ran across the southern part 
 of the section, parallel to its southern 
 boundary, the two together occupying the 
 whole of the quarter-section north of the 
 river, and the portion to the south not 
 being actually occupied by any one. A 
 State patent, including the quarter-sec- 
 tion, was issued to A. in 1862, and a 
 United States pre-emption patent for 
 the quarter-section, conveying the title 
 thereto, was issued to P. in 1863, and the 
 parties continued in the actual possession 
 of the tracts respectively occupied by 
 them, claiming under their patents. 
 Held, that A. by his patent acquired con- 
 structive possession of the land lying 
 south of the river, and continued to have 
 such possession after the issue of the 
 patent to P. Langford v. Poppe, 56 
 Cal. 73. 
 
 Actual possession of granted land un- 
 der a younger grant, by clearing, inclos- 
 ing and cultivating a part of the land, espe- 
 cially if notice of the fact be brought home 
 to the claimant under the older grant, 
 will start the running of the statute of 
 limitations, in favor of the possession, to 
 the boundaries of the younger grant, and 
 actual possession kept continuously for 
 seven years, although on other parts of 
 the granted land, would perfect the title. 
 Coal Creek Co. v. Ross, 12 Lea(Tenn.), 
 I. 
 
 1. White V. Burnley, 20 How. (U. S.) 
 231; Ewing V. Burnet, 11 Pet. (U. S.) 41; 
 Clark's Lessee v. Courtney, 5 Pet. (U. S.) 
 319; McEwen v. Den's Lessee. 24 How. 
 (U. S ) 242; Trimble v. Smith. 4 Bibb 
 (Ky.), 257; Fox z). Hinton, 4 Bibb (Ky.), 
 559; Smith V. Mitchell, I A. K.. Marsh. 
 (Ky.) 251; 3 A. K. Marsh. 1022; i 
 Marsh. (Kv.) 1097; Price v. Evans, 4 B. 
 Mnn. (Ky.) 388; Talbot v. McGavock, i 
 Verg. (Tenn.)26B; Hole z/. Rittenhouse, 
 
 25 Pa. St. 491; Portis v. Hill, 3 Tex.. 
 278; Wheeler v. Moody, 9 Tex. 377;; 
 Whitehead v. Foley, 28 Tex. 268; Staf 
 ford V. King, 30 Tex. 277; Gillespie v. 
 Jones, 26 Tex. 346. 
 
 WherS there is only a partial conflict 
 or interference of surveys, the statute 
 will not run in favor of an adverse occu- 
 pant under a junior title, if his possession 
 does not extend to that part of the land 
 in dispute which is witliin the conflict.. 
 Angell on Lim. §402; Trimble v. Smith. 
 4 Bibb (Ky.), 257; Foxz/. Hinton, 4 Bibb. 
 (Ky.), 559; Smith -v. Mitchell, i A. K.. 
 Marsh. (Ky.) 207; Pogue i/. McKee, 3 
 Marsh. (Ky.) 127; Smith v. Frame, 3 
 Marsh. (Ky.) 231; Price v. Evans, 4 B. 
 Mon. (Ky.) 388; White v. Burnley, 20. 
 How. (U. S.) 235; Hole u. Rittenhouse, 
 25 Pa. St. 491 (overruling Waggoner v. 
 Hastings, 5 Barr (Pa.), 300; Beaupland. 
 V. McKeen. 28 Pa. St. 124; s. c, 70 Am. 
 Dec. 115; Talbot v. McGavock, i Yerg. 
 (Tenn.) 262; Peyton v. Barton, 53 Tex. 
 298. 
 
 Though actual possession under a 
 junior title of part of a tract of land 
 which intei-feres with an older grant 
 gives possession of the whole to the- 
 holder of the junior title, yet a subse- 
 quent entry of the true owner upon any 
 part of his land .is an ouster of the in- 
 truder from the part of which he has con- 
 structive possession. Altemus v. Long, 
 4 Pa. St. 254; s. c, 45 Am. Dec. 688; 
 Hunnicut v. Peyton, 102 U. S. 333; 
 Evitts V. Roth, 6i'Tex. 81. 
 
 In case of a lappage, and each bar- 
 gainee is on his own land, outside the in- 
 terference, the title will be in him who- 
 has the elder title; but if the junior bar- 
 gainee has had actual adverse possessiort 
 for the statutory time with color, he ac- 
 quires a good title to the part so occu- 
 pied. Brady v. Maness. 91 N. Car. 135.. 
 
 2. Cushman v. Blanchard, 2 Me. 266; 
 s. c, II Am. Dec. 76; Bellis v. Bellis, 
 122 Mass. 414; 'Winter v. Stevens, g- 
 Allen (Mass.), 526; Langdon v. Potter, 
 3 Mass. 2lg; Crispin v. Hannovan, 5a 
 Mo. 536; Semple v. Cook, 50 Cal. 26. 
 
 289 
 
Color of Title. 
 
 ADVERSE POSSESSION. Extent of Possession. 
 
 42. Extent of Possession. — He who enters under a claim or color 
 of title may hold to the boundaries described in the instrument 
 under which he claims. ^ But if the boundaries described in the 
 
 1. Whitehead v. Foley, 28 Tex. 285; 
 Cantagrel v. Von Lupin, 58 Tex. 570; 
 Evilts V. Roth, 61 Tex. 81; De Graw v. 
 Taylor, 37 Mo. 310; Lynde y. Williams, 
 68 Mo. 360; Long v. Higginbotham, 56 
 Mo. 240; Schultz V. Lindell. 39 Mo. 310; 
 Davis V. Parley, 30 Cal: 630; Tremaine 
 V. Weatherby, 58 Iowa, 615; Teabout v. 
 Daniels, 38 Iowa, 158; Calvin v. Medina, 
 39 Iowa, 502; Barger v. Hobbs, 67 111. 
 592; Goewey v. Urig, 18 III. 238; Fair- 
 man V. Beal, 14 111. 244; McEvoy v. Loyd, 
 13 Wis. 142; Pepper v. O'Dowd. 39 Wis. 
 538; Furlong v. Garrett, 44 -Wis. iii; 
 Bell V. Longworth>, 6 Ind. 273; Hum- 
 phries V. Huffman, 33 Ohio St. 395; Smith 
 T. McKay, 30 Ohio St. 409; Gardner v. 
 Gooch, 48 Me. 487; Bailey v. Carleton, 
 12 N. H. 9; s. c. 37 Am. bee. 190; Jak- 
 way V. Barrett, 38 Vt. 316; Swift v. Gage, 
 26 Vt. 224; Thompson v. Burhans, 61 
 N. Y. 52; Munro v. Merchant, 28 N. Y. 
 9; Wright V. Sadler, 20 N. Y., 320; Ege 
 V. Medar, 82 Pa. St. 86: Culler v. Mot- 
 2er, 13 S. & R. (Pa.) 356; s. c, 15 Am. 
 Dec. 604; Parker v. Wallis, 60 Md. 15; 
 s. 1. . 45 Am. Rep. 703; Creekmur v. 
 Creekmur, 75 Va. 431; Adams v. Alkire, 
 20 W. Va 480; Core v. Faupel, 24 W. 
 V;i. 238; Johnson v. Parker, 79 N. Car. 
 475; Stanton v. MuUis, 92 N. Car. 624; 
 Congdon v. Morgan, 14 S. Car. 587; 
 Grimes v. Ragland, 28 Ga. 123; Veal v. 
 Robinson, 70 Ga. 809; McCarney z*. Hig- 
 don. 50 Ga. 629; Wiley v. Warmoch, 30 
 Ga. 83; Childers v. Calloway, 76 Ala. 
 130; Hymes v. Burnstein; 72 Ala. 546; 
 Burks V. Mitchell, 78 Ala. 61; Wilson v. 
 Williams, 52 Miss. 487; Peek w. Houston, 
 5 Lea (Tenn.), 227; Hunnicutt v. Pey- 
 ton. 102 U. S. 333; Pike V. Evans, 94 U. 
 S. 6; Ellicott v. Pearl, 10 Pet. (U. S.) 
 412; Clymer v, Dawkins, 3 How. (U. S.) 
 674. 
 
 If the true owner is in actual or con- 
 structive possession, one claiming under 
 color of title can acquire seisin only to the 
 portion actually occupied by him. Barr 
 V. Gratz, 4 Wheat. 213; Hunnicut v. 
 Peyton, 102 U. S. 333; Livingston v. 
 Peru Iron Co., 9 Wend. (N. Y.) 511; 
 Brimmer v. Proprietors, 5 Pick. (Mass.) 
 131; Bradley v. West, 60 Mo. 33. 
 
 Adverse possession of a plot of land 
 used as a family burial ground will ex- 
 tend only to portion occupied by graves. 
 Mooney v. Cooledge. 30 Ark. 640. 
 
 A grantee, whose lands are byhis deed 
 bounded by a definite Ime, cannot be 
 
 said to claim under that instrument lands 
 outside that line. Pope v. Hanmer, 74 
 N. Y. 240; Grube v. Wells, 34 Iowa. 148. 
 But he may acquire title to such lands 
 by actual occupancy. Slaughter v. Fow- 
 ler, 44 Cal. 195. 
 
 A plat and survey in connection with 
 other evidence may be used in fixing the 
 origin, date, and limits of the possession. 
 Dorr V. School District, 40 Ark. 237. See 
 St. Louis V. Gorman, 29 Mo. 593; s. c, 
 77 Am. Dec. 486. 
 
 Color of title may arise under a void 
 or worthless deed. Yet the deed may be 
 used to explain and define the posses- 
 sion. Pillow V. Roberts, 13 How. (U. S.) 
 472; Hamilton v. Boggess, 63 Mo. 233; 
 Dorr V. School District, 40 Ark. 237. 
 
 Clearing a part, with intent to make 
 other improvements, will give construc- 
 ive possession of the whole tract. Scott 
 V. Delany. 87 111. 146. 
 
 Occupying certain 40-acre tracts of a 
 section for logging purposes /lelU not 
 to be constructive possession of the re- 
 maining tracts. Coleman v. Eldred, 44 
 Wis. 210. 
 
 Where the possession is greater in ex- 
 tent than the claim, it is the latter which 
 determines the amount of land gained by 
 adverse possession. Wood ». Willard, 
 37 Vt. 377; Grube v. Wells, 34 Iowa, 148. 
 
 A grant to a railroad company to use 
 a part of a street is not such a color of 
 title as will enable them to hold the en- 
 tire street adversely. Pittsburg, etc., R 
 Co. V. Reich, loi 111. 157. 
 
 A railroad company entitled by con- 
 tract to strip of land of certain width 
 built track and took possession. Held, 
 that this amounted to adverse possession 
 of as much land on either side of track 
 as was necessary and proper for use of 
 road. Day v. N. Y., etc., R. Co., 20; 
 Am. & Eng.R. R. Cas. 359; s. c, 41 Ohio 
 St. 392. ^ 
 
 Plaintiff's deed contained a description 
 in substance as follows: A certain piece 
 of meadow or land covered by water ly- 
 ing in F. pond, (a natural pond), begin- 
 ning at a certain marked cedar-tree, run- 
 ning thence south 83^^ degrees west, 4 
 chains through lands of one J., to a 
 stake ; thence north 2 chains and 13 
 links, to a stake; thence north 51 J de- 
 grees east, to a tree. Held, that the 
 deed could not be the basis of a construc- 
 tive adverse possession as against J. or 
 his grantees, of land between the first- 
 
 290 
 
Color of Title. 
 
 AD VERSE POSSESSION. Extent of Possession. 
 
 deed are ambiguous or incorrect, the party claiming under it can- 
 not acquire title by constructive possession, but is limited to the 
 land actually occupied. ^ 
 
 The rule that a party who, under a defective title, has entered 
 into actual possession of a part of the land, claiming the whole, 
 may have constructive possession of the whole, applies only when 
 the part not actually possessed has some necessary connection 
 with the other portion, as by use with it or subservient to it.** 
 
 mentioned line and low-water mark of 
 the pond, as the deed only purported to 
 convey land in the water, and so did not 
 include, in the general description, land 
 above low-water mark ; and as the de- 
 scription of said line was an admission 
 that J. owned on both sides thereof, and 
 so it was no boundary line. Wheeier v. 
 Spinola, 54 N. Y, 377. 
 
 The extent of the possession is limited 
 to the limits claimed at the time of entry. 
 Additional land cannot be included in 
 the claim, unless a new entry and claim 
 is made which will include such other 
 lands. Neither can adverse possession be 
 sustained to a part of the land in the 
 actual possession of another adverse 
 claimant, if such included part is sub- 
 sequently abandoned by the holder. In 
 order to include it acts amounting to a 
 new entry as regards that part must be 
 made. Pepper v. O'Dowd, 39 Wis. 548. 
 
 A void deed purported to convey three 
 fourths of a township containing in all 
 about 19,000 acres. The grantee named 
 in the deed entered upon and improved 
 about 400 acres in the southeast corner 
 of the township, and afterwards brought 
 ejectment for 4000 acres lying along the 
 northern boundary of the township. 
 Held, that he had no possession which 
 would support his action, even against a 
 mere trespasser. Thompson v. Bur- 
 hans. 61 N. Y. 52. 
 
 Where one takes possession of a 
 government subdivision of land under a 
 claim of title to the whole of it, and puts 
 ci portion of it in cultivation, and no 
 other person is in possession of any part 
 thereof, such possession must be regarded 
 as applying to the whole tract claimed by 
 him, especially when the actual posses- 
 sion extends to each government sub- 
 division embraced in the entire tract. 
 Tremaine z/. Weatherby, 58 Iowa. 615. 
 
 1. Angell on Lim. § 408; Jackson v. 
 Woodruff, I Cowen (N. Y.), 276; o. i.., I3 
 Am. Dec. 525. 
 
 Where the boundaries are given on a 
 town map, a person claiming under color 
 of title must claim under such map, in 
 order to avail himself of it. St. Louis v. 
 Gorman, 29 Mo. 593^ s. c, 77 Am. Dec. 
 
 586. See Dorr w. School Dist., 40 Ark. 
 237. 
 
 A deed describing land. as "lot No. 6, 
 on the westerly side of Peabody River, to 
 run 160 rods each side of the road where 
 it now runs," gives np color of title to 
 land east of Peabody River, though less 
 than 160 rods from the road. Bellows 
 ■V. Jewell, 60 N. H. 420. 
 
 2. Thompson t/. Burhans, 79 N. Y. 93; 
 see Thompson v. Burhans, 6i N. Y. 52; 
 Miller z;. L. I. R. Co., 71 N. Y. 380; Beau- 
 plan V. McKeen, 28 Pa. St. 124; s. c. , 70 
 Am. Dec. 115; Scott v. Delany, 87 111. 
 146; Wilson V. Ewen, 7 Oregon, 87; 
 Leeper v. Baker, 68 Mo. 400; Compare 
 Ballance v. Flood, 52 111. 49. 
 
 Although a party may derive his title to 
 different tracts of land from different 
 sources, yet if the tracts adjoin each 
 other, and are all in one inclosure, and 
 there is no one but the owner residing 
 thereon, such residence is an "actual 
 residence" upon all the tracts. Wharton 
 V. Bunting, 73 III. 16. 
 
 In Tremaine v. Weatherby, 58 Iowa, 
 615. the court said: " It is not practicable 
 nor possible for a party to be in actual 
 possession of every part of a tract of land 
 which is cut up by streams or sloughs, by 
 bluffs or the like. He cannot have the 
 whole of such a tract in the grasp of his 
 hands or under his feet. If the owner of 
 eighty acres of land breaks and cultivates 
 sixty acres and up to a slough, leaving 
 twenty acres unbroken and unused, it 
 would be unfair to say that his possession 
 of the twenty acres was not actual and 
 adverse, because it is cut off from the 
 other land by a stream, a bluff, a thicket, 
 or a slough." 
 
 In ejectment by L. against B., to re- 
 cover forty acres of swamp land. L. 
 showed a better documentary title; but B. 
 claimed under a deed conveying, besides 
 this tract, six hundred and fifty-one acres, 
 whereof six hundred acres had oeen in- 
 closed by B. and his grantors for more 
 than ten years. There was evidence that 
 the forty acres were too wet for cultiva- 
 tion, and any fence thereon would be in 
 danger of being washed away by high 
 water; l.hatB, had paid taxes on it for 
 
 K91 
 
W)lor of Title— Fraud, AD VERSE POSSESSION, without Color of Title. 
 
 43. Fraud. — A grantee will not be deprived of the legal advan- 
 tages of his entry under color of title, unless it be for actual fraud 
 on his part ; he will not be prejudiced by the fraud of the grantor 
 in making the title unless he was a participant in the fraud, and 
 if his deed purports on its face to convey a good title, and he has 
 accepted it in good faith, he will be entitled to the benefits to be 
 derived from an entry under color of title. Mere neglect to in- 
 quire into the state of the title is not sufificient evidence of fraud ; 
 nor does the rule that what is sufficient to put a party on inquiry 
 operate as notice, apply to such a case. There must be clear and 
 satisfactory proof of knowledge that the title supposed to be ac- 
 quired wgs invalid, accompanied by proof of an intent to defraud 
 the real owner.* 
 
 44. Without Color of Title. — Where there is no color or claim 
 of title, and naked possession alone is relied on as constituting 
 title to land, there must be an actual occupancy of the land, 
 and the possession cannot be extended by construction beyond 
 that actual occupancy.'-* The doctrine seems to be that when a 
 
 suit, the prescriptive title was good, al- 
 though the first grantor may, in fact, 
 have been a tenant by sufferance, of 
 which the subsequent takers had no no- 
 tice. McDougald v. Reedy, 71 Ga. 750. 
 
 Where a debtor executed a deed to 
 lands for the purpose of placing the title 
 beyond the reach of his creditors, and of 
 creating a secret trust for his own bene- 
 fit, he continuing in fact the real owner, 
 and enjoying the use, products, and 
 profits of the estate, and the grantee 
 never having been in possession of, and 
 never having exercised or claimed any 
 dominion or ownership over, the lands 
 conveyed, the grantee is not, under such 
 deed, clothed with any ownership or as- 
 serted right, which will uphold a claim of 
 adverse possession against a creditor of 
 the grantor, seeking to subject the lands 
 conveyed by the deed to the payment of 
 his debt. Jones v. Wilson, 69 Ala. 400; 
 Williams v. Higgins, 69 Ala. 517. 
 
 Adverse possession for ten years by a 
 grantee in a voluntary conveyance of 
 land, executed while the grantor was 
 surety on a guardian's bond, is, under 
 the statute of limitations, a good defence 
 to a bill filed by an administrator of the 
 deceased ward, to have the conveyance 
 set aside as fraudulent, and the land sub- 
 jected to the payment of the guardian's 
 liability to his ward. It is immaterial 
 that the right of the complainant to pro- 
 ceed against the surety of the guardian 
 arose within ten years prior to the com- 
 mencement of the suit. Snedecor v. 
 Watkins, 71 Ala. 48. 
 
 2. Bracken v. Jones, 63 Tex. 184; Can- 
 lagrel v. Van Lupin, 58 Tex. 570; Kim- 
 
 more than ten years, and had used it as 
 incident to the six hundred and fifty-one 
 acres to obtain wood, and had included 
 it in a survey of six hundred and ninety- 
 one acres, and recorded the deed; that L. 
 lived eight miles from the land, and had 
 notified B. at the beginning of his occu- 
 pancy that he owned the forty acres. 
 Held, that although B.'s occupation of the 
 six hundred and fifty-one acres did not, 
 of itself, draw to itself adverse posses- 
 sion of the forty acres, a judgment in 
 favor of B. should be affirmed. Leeper 
 V. Baker. 58 Mo. 400. 
 
 1. Foulke V. Bond, 41 N. J. L. 527; 
 Moody V. Moody, 16 Hun (N. Y.), 189; 
 Crispen v. Hannavan, 50 Mo. 536; Dal- 
 ton V. Bank of St. Louis, 54 Mo. 105; 
 Hamilton: v. Boggess, 63 Mo. 233; Rus- 
 sell i*. Mandell, 73 111. 136; McClellan v. 
 Kellogg, 17 111. 498; Jackson v. Berner. 
 48 111. 203; Hall V. Gay, 68 Ga. 442; 
 Hammond v. Crosby, 68 Ga. 767; Nash 
 V. Fletcher, 44 Miss. 609; Welborn v. 
 Anderson, 37 Miss. 155. 
 
 Possession of grantor whose posses 
 sion originated in fraud cannot be added 
 to complete term necessary to give de- 
 fendant title by prescription, though he 
 be an innocent purchaser from such 
 fraudulent grantor. Farrow v. Bullock, 
 63 Ga. 360. 
 
 Where one received a voluntary deed 
 from her mother, who was in possession 
 of land, took adverse possession there- 
 under, without any notice af the fact that 
 the grantor had acknowledged herself to 
 be the tenant of another, and sold the 
 property to a third party, and the two 
 held adversely for seven years before 
 
 393 
 
Without Color of Title. AD VERSE POSSESSION, without Color of Title. 
 
 usurper enters upon land, he acquires possession, inch by inch, of 
 the part which he occupies; and that the mere naked possession, 
 without color of title, is adverse only to the extent of the actual 
 inclosure, which must be definite and notorious. No definite rule 
 as to what constitutes sufficient possessory acts under claim of 
 title can be given, as the matter must necessarily depend largely 
 
 ball V. Stormer, 65 Cal. 116; Kimball v. 
 Lohmas, 31 Cal. 154; Marble z*. Price, 54 
 Mich. 466; Peterson v. McCuUough, 50 
 Ind. 35; Bristol z/. Carroll County, g8 111, 
 S4; Schneider z'. Botsch, 90 111. 577; Cole- 
 man V. Billings. 8g III. 183; Weber v. 
 Anderson, 73 111. 439; Booth z/. Small, 25 
 Iowa, 177; Hamilton i/. Wright, 30 Iowa, 
 .4S0; Huntington v. Allen, 44 Mjss. 654; 
 Alexandei- v. Polk,- 39 Miss. 737 ; Bryan 
 V. Atwater, 5 Day (Conn.). 181; s. c, 5 
 Am. Dec. 136; Tracy v. Norwich, etc., 
 R. Co.. 39T^onn.382; French v. Pearce, 
 8 Conn. 439; s. c, 21 Am Dec. 680; 
 Jewett V. Hussey, 70 Me. 433; Abbott v. 
 Abbott, 51 Me. 584; Lincoln v. Edge- 
 comb, 51 Me. 345; Hitchings v. Morri- 
 son, 72 Me. 334; Otis V. Moulton.s 20 
 Me. 203; Hodges v. Eddy, 38 Vt. 327; 
 Stevens v. HoUister, 18 Vt'. 294; Paine 
 V. Hutchens. 49 Vt. 314; Spaulding v. 
 Warren, 25 Vt. 316; Burrell v. Burrell, 
 II Mass. 297; Melvin V. Proprietors, 5 
 Mete. (Mass.) 5; s. c, 38 Am. Dec'. 384; 
 Proprietors v. Springer, 4 Mass. 416; s. 
 c. 3 Am. Dec. 227; Robinson v. Phillips, 
 65 Barb. (N. Y.) 429; s. c, 56 N. Y. 634; 
 Crary v, Goodman, 22 N. Y. 170; Bald- 
 win z/. Brown, 16 N. Y. 359; Ege v. 
 Medlar, 82 Pa. St. 86; Meade v. LefEng- 
 well, 83 Pa. St. 187; Jones v. Porter, 3 
 Pa. St. X34; Brown v. McKinney, 9 
 Whart, (Pa. ) 567; Boynton v. Hodgdon, 
 Sg N. H. 247; 'Wells z/. Jackson Mfg. Co., 
 48 N. H. 4gr; Enfield v. Day, 7 N. H. 
 457; Hale V. Glidden, 10 N. H. 401; 
 Smith V. Hosmer, 7 N. H. 436; s. c, 28 
 Am. Dec. 354; McKinny v. Kenny, i 
 A. K. Marsh. (Ky.) 343; Smith w. Mor- 
 row, 5 Litt. (Ky.) 210; Hunter v. Chris- 
 man, 6 B. Mon. (Ky.) 465; Clarke v. 
 Wagner. 74 N. Car. 7gi; Scott v. Elkins, 
 83 N. Car. 424; Parker v. Banks, 7g 
 N. Car. 480; Moore v. Thompson, 6g N, 
 Car. 120; Seymour v. Carli, 31 Minn. 81; 
 Washburn v. Cutter, 17 Minn. 335; Hum- 
 phries ». Huffman, 33 Ohio St. 395; 
 Dothard v. Denson, 75 Ala. 482; Bell v. 
 Denson, 56 Ala. 444; Hawkins v. Hud- 
 son, 45 Ala. 482; Burks v. Mitchell, 78 
 Ala. 61; Hall v. Gay, 68 Ga. 442; 
 Hammond v. Crosby, 68 Ga. 767; 
 Anderson v. Dodd, 65 Ga. 402; Whitting- 
 ton V. Wright, 9 Ga. 23; Creekmur v. 
 Creekmur, 75 'Va. 431; Kincheloe v. 
 
 I C. of L. — 20 
 
 393 
 
 Tracewell, 11 Gralt. (Va.) 587; Peterson 
 ■u. McCuUough, 50 Ind. 35; Core v. Fau- 
 pel, 24W. Va. 238; Haywood v. Thom- 
 as, 17 Neb. 237; Wilson v. McEwan, 7 
 Oregon, 87; Ferguson v. Peden, 33 Ark. 
 150; BrSwn V. Leete, 6 Sawy. (U. S.) 
 332. Compare Wilson v. McEwan, 7 Or- 
 egon, 87. 
 
 Without color of title there can be no 
 constructive possession. Wells v. Jack- 
 son Mfg. Co., 42 N. H. 491. 
 
 The extent of the actual Inclosure must 
 be definite and notorious. Bristol v. 
 Carroll County, 95 111. 84; Humphries v. 
 Huffman, 33 Ohio St. 395. 
 
 Where a party has inclosed a larger 
 extent of land than his deed describes, he 
 may claim to the extent of his inclosure. 
 Swettenham v. Leary, 18 Hun (N. Y.), 
 284. 
 
 Under the Illinois act of 1839. actual 
 possession and payment of taxes for 
 seven years successively, but without 
 color of title, afford no defence to an ac- 
 tion by the true owner. Stoltz u. Doer- 
 ing, 112 111. 234. 
 
 A naked assertion of title to the bed of 
 a lake, almost wholly covered by water, 
 is not sufficient to' put the statute in op- 
 eration. State V. Portsmouth Sav. Bank, 
 106 Ind. 435. See Clarke v. Wagner, 
 74 N. Car. 7gr. 
 
 One who maintains a mill-dam which 
 causes the waters of an unnavigable 
 stream to set back and overflow the lands 
 of another to a certain height or extent 
 uninterruptedly for ten years, acquires 
 a prescriptive right to flow the lands to 
 that extent. Fluctuation in the height of 
 the water, caused either by extraordinary 
 rainfalls or freshets, or by extreme or un- 
 usual drouths, or by excessive dr^aughts 
 upon the water for the use of the mill, 
 occasionally, will not affect or impair the 
 prescriptive right to flow to the usual 
 iieight acquired- during ordinary seasons 
 by uninterrupted use for ten years. John- 
 son V. Boorman. 63 Wis. 268. 
 
 FoBsession under 'Verbal Contract. — 
 Possession of land taken under a verbal 
 sale or exchange, and held under claim 
 of ownership, is adverse, and may ripen 
 into a title under the statute of limita- 
 tions. Alexander v. Wheeler, 78 Ala. 
 167. See Parol Agreement, ante, p 279. 
 
Improvements. 
 
 ADVERSE POSSESSION. 
 
 Improvements. 
 
 upon the nature and character of the property, and must be 
 determined from the circumstances of each case, and is for the 
 jury.^ (See ACTUAL POSSESSION, ante, p. 183.) 
 
 45. Improvements. — According to the strict rule of the common 
 law, no allowance was made for such improvements, however 
 valuable or beneficial, they being regarded as having been made 
 at the peril of the possessor of the freehold. The right to set off 
 such improvements in reduction or recoupment of rents recover- 
 able by the complainant is purely an equitable one, borrowed 
 originally from the civil law by courts of chancery. The rule 
 prevails only in favor of a bona-fide occupant or possessor of land. 
 He must be one who is not only in possession, but who asserts 
 adverse ownership under color or claim of title. A mere naked 
 intruder, or trespasser, does not come within the letter or spirit 
 of the rule. It is equally clear, on both principle and authority, 
 that one who has knowledge of an adverse claim is not entitled 
 to the right to set off improvements made after acquiring such 
 knowledge.* 
 
 1. Wood's Lim., § 267. 
 
 2. The New Orleans & Selma R. v. 
 Jones, 68 Ala. 49; s. c, 70 Ala. 227; 
 Gordon v. Tweedy, 74 Ala. 233. See 
 Barker v. Owen, 93 N. Car. 203. 
 
 In Gordon v. Tweedy, 74 Ala. 233, the 
 court said: "Actual notice of such ad- 
 verse claim, according to the better rule, 
 is generally held to be fatal to the occu- 
 pant's claim for improvements, although 
 mere constructive notice, such as the law 
 implies from the record of a deed, is 
 deemed insufficient. This principle 
 seems to be generally adopted every- 
 where, so far as I have been able to dis- 
 cover, except in the State of Texas, 
 where a different rule prevails, and 
 actual notice is not regarded as a con- 
 clusive test of good faith. In Jackson 
 V. Loomis, 4 Cow. 168; s. c, 15 Am. 
 Dec. 347, the distinction under considera- 
 tion, seems not to have been discussed 
 or clearly taken. The authorities, gen- 
 erally, however, are not wanting in har- 
 mony. 2 Story's ' Eq. Jur. (Redf. Ed.) 
 §§ 799' Ty)"'' 799^ I Trial of Titles to 
 Land (Sedgw. & Wait), §§ 694, 705 ; 
 Sedgwick on Dam. p. 140 (12), note; 
 Blackwell on Tax Titles, marg. p. 590- 
 592; Burroughs on Tax. 34S-6. The 
 rule, which we here announce, was fol- 
 lowed by this court in Horton v. Sledge, 
 29 Ala. 478, which was a suit in equity 
 for a partition of lands, and an account 
 of rents and profits, brought by one 
 tenant in common against anothei;. The 
 defendant was allowed only for such per- 
 manent and valuable improvements as 
 ■were made ' before he was apprised that 
 his title was disputed.' The filing of the 
 
 bill is considered by all the authorities 
 as tantamount to actual notice. In fact, 
 it is the most solemn and authoritative 
 of all forms of notice." 
 
 A landowner cannot be improved out 
 of his estate. Improvements placed 
 upon his land belong to him, and can be 
 used by the maker, at the utmost, only 
 as a set-off against rents and profits — 
 never for the purpose of acquiring title. 
 Pulaski Co. v. State, 42 Ark. 118. 
 
 If the legal owner admits a right to 
 the improvoments, he acknowledges that 
 the possession was adverse. Moore v. , 
 Moore, 61 Me. 417. 
 
 No length of possession will give title 
 to one who only claims to own the im- 
 provements upon the land. Davenport 
 V. Sebring, 52 Iowa, 364. 
 
 In New Hampshire, to sustain a claim 
 for betterments, the tenant must show 
 that he had actual and peaceable posses- 
 sion of the premises, claiming in good 
 faith and supposing that he had a legal 
 title for more than six years prior to the 
 commencement of the suit ; so where 
 the defendant was in the actual and 
 peaceable possession of the premises, 
 claiming in good faith, and supposing 
 that he had a good legal title for six 
 years before the action was commenced, 
 and his claim for betterments .cannot be 
 allowed. Bellows z/. Cole. 20 N. H. 
 492; Wendell v. Moulton, 26 N. H. 41, 
 65, Tripe v. Marcy, 39 N. H. 439; Lock 
 V. Whitney, 5 Eastn. Repr. (N. H.) 340. 
 
 Where the right to be improvements 
 is acknowledged, it is an admission that 
 the possession has been adverse. Moore 
 V. Moore, 61 Me. 417. 
 
 294 
 
Abandonment. 
 
 ADVERSE POSSESSION. 
 
 Abandonment. 
 
 46. Abandonment. — Land may be abandoned at any time before 
 a valid title by disseisin is acquired ; but after the title Has ripened 
 into a perfect one the mere act of leaving the land will not destroy 
 the title.i 
 
 Under the Ohio statute, where a per- 
 son, in the quiet possession of land 
 under an agreement for its purchase 
 made with the equitable owner, is evicted 
 by the trustee holding the legal title, he 
 is not entitled, under said act, to com- 
 pensation for lasting and valuable im- 
 provements made upon the premises. 
 Preston v. Brown, 35 Ohio St. 18. 
 
 In Wharton v. Moore, 84 N. Car. 479, 
 the court said: "The right to better- 
 ments is a doctrine that has gradually 
 grown up in the practice of the courts of 
 equity, and while it has been adopt,ed in 
 many of the states, it is not recognized 
 in others. But it may now be considered 
 as an established principle of equity, 
 that whenever a plaintiff seeks the aid of 
 a court of equity to enforce his title 
 against an innocent person who has 
 made improvements on land without 
 notice of a superior title, believing him- 
 self to be the absolute owner, aid will be 
 given to him only upon the terms that 
 he shall make due compensation 10 such 
 innocent person to the extent of the 
 enhanced value of the premises, by rea- 
 son of the meliorations or improve- 
 ments, upon the principle that be who 
 seeks equity must do equity." 
 
 If a tax title shows upon its face that 
 it is void, it cannot be the foundation 
 for a claim for the value of improve- 
 ments made in good faith. Hatchett v. 
 Conner, 30 Tex. 104; House v. Stone, 
 64 Tex. 677. 
 
 There must be possession under color 
 of title in good faith before a defendant 
 is entitled to acquittal for responsibility 
 for rents accruing during his adverse 
 occupancy. N. O. & S. R. Co. v. Im- 
 migration Assoc, 2 Am. & Eng. R. Cas. 
 425; s. c, 68 Ala. 48; s. c, 70 Ala.'227. 
 
 When Action lies for Rents received. — 
 A person who receives the rents of lands 
 while in possession under claim of title 
 adverse to the plaintiff is not liable to 
 the plaintiff in an action for money had 
 and received, although a suit in equity 
 was at the time pending to hold him 
 liable as trustee of the lands for the 
 benefit of the plaintiff. Lockhard v. 
 Barton, 78 Ala. 189. 
 
 1. 3 Wash. Real. Pr. (4th Ed.) c. 2. 
 Compare Vickery v. Benson, 26 Ga. 582. 
 
 In Bear Valley Coal Co. v. Dewart, 95 
 Pa. St. 72, the court said: "An aban- 
 doned title is not transferred to an ad- 
 
 verse claimant or person who first seizes 
 the land, but it falls back to the State, 
 and by its extinction sometimes makes a 
 younger and conflicting title good. The 
 doctrine of abandonment does not apply 
 to a perfect title, but only to imperfect 
 titles. In favor of a junior warrant or 
 settlement right after long lapse of time, 
 an imperfect title by warrant and survey 
 may be presumed to be abandoned. But 
 such presumption cannot be made of a 
 perfect title; that is never reinvested in 
 the Stale on such principle. After the 
 land has been located an 1 patented, it 
 will not fall back because it is a derelict 
 nor for the owner's neglect to pay the 
 taxes. Hoffman v. Bell, 61 Pa. St. 444. 
 
 A stranger will not 'acquire title by 
 payment of taxes on unoccupied land. . 
 Actual possession is necessary to acquire 
 title under the statute of limitations. 
 The presumption arising from the own- 
 er's neglect to exercise every act of own- 
 ership, often called abandonment, pf his 
 waiver of irregularities in sales of land 
 for taxes or on judicial process, is a very 
 different thing from the statutory title by 
 adverse and continuous possession. In 
 case of conflicting titles, the older and 
 better will not be lost by reason of the 
 statute of limitations, nor presumption 
 of waiver upon the mere payment of 
 taxes by the holder of the younger title." 
 
 The mere fact that the owner of real 
 estate "has not had possession of it, 
 claiming title to it," for more than 
 twenty years, in the absence of any ad- 
 versary claim or possession, does not 
 work a forfeiture of his title. Bernstein 
 V. Humes, 78 Ala. 134. 
 
 Title obtained by disseisin can only be 
 transferred by deed. It cannot be lost 
 by parol abandonment or relinquishment. 
 School Dist. V. Benson, 31 Me. 381; o. t., 
 52 Am. Dec. 618. 
 
 Where the possession of the premises 
 is abandoned by either party, the ques- 
 tion as to whether they are left animo re- 
 vertendi is one for the consideration of 
 the jury; but whether such a question 
 arises in the case is for the court to de- 
 termine. McCall V. Pryor, 17 Ala. 533; 
 Wilson V. Glenn, 78 Ala. 383. 
 
 An abandonment after the statutory 
 period will rescind the title adversely 
 acquired. Vickery v. Benson, 26 Ga. 
 582; Russell V. Slaton, 25 Ga. 493. Com- 
 pare Schall V. Williams Valley R. Co., 35 
 
 395 
 
nines. 
 
 ADVERSE POSSESSION. 
 
 Water. 
 
 47. Mines. — Adverse possession may be acquired of a mine or 
 mining claim ; also of a quarry.^ (See also MINES AND MINING.) 
 
 48. Water. — An adverse possession and user of water for the 
 statutory period, continuously and uninterruptedly, with the knowl- 
 edge of and to the injury of the true owner, will bar his right 
 
 Pa. St. igi; Jacks v. Chaffin, 34 Ark. 
 
 .■534. 
 
 1, Union, etc., Co. v. Taylor, 100 U. S. 
 .37; Harris v. Equator, etc., Co., 8 Fed. 
 Repr. 863; Moore v. Thompson, 69 N. 
 Car. 120; Hess v. Winder, 30 Cal. 349. 
 
 Adverse possession of the surface of 
 land for the statutory period does not 
 carry with it the possession of minerals 
 below it, where the title to. the latter has 
 been severed from that of the surface by 
 deed; and the owner seeking to estab- 
 Jish title to a mine must prove posses- 
 sion of the mine as such, independently 
 ■of his possession of the surface. Caldwell 
 ». Copeland, 37 Pa. St. 427; s. c, 78 Am. 
 Dec. 436. See Caldwell v. Fulton, 31 Pa. 
 St. 475; s. c, 72 Am. Dec. 760, and note; 
 Armstrong v. Caldwell, 53 Pa. St. 287; 
 Penna., etc., Co. v. Neel, 54 Pa. St. 17; 
 Knight V. Indiana Co., 47 Ind. no. 
 
 Two adjacent mining-lot owners laid 
 •claim to a vein or lode extending 
 through their two lots, one filing a com- 
 plaint and the other a cross-complaint, 
 setting up their respective rights to the 
 vein in controversy. Held, that a 
 court of equity may take cognizance of a 
 cross-action brought to try the adverse 
 claim to the right of possession of a 
 mineral lode, to quiet the title thereto, 
 and enjoin the removal of ore therefrom, 
 when, for these purposes, it becomes 
 necessary to identify the boundaries of 
 the vein and the apex of the lode, and, 
 in view of the issue involved and the re- 
 lief sought, a judgment at law would not 
 meet the exigencies of the case. Bullion, 
 etc., M. Co. V. Eureka M. Co., 14 Am. & 
 Eng. Corp. Cas. 152. 
 
 Possession of the surface of any mining 
 claim is possession of all veins and lodes, 
 the top or apex of which is inside the 
 surface lines,, although, as they go down- 
 ward, such veins or lodes extend outside 
 the vertical line of the surface location. 
 No adverse possession can become oper- 
 ative by a party going outside the boun- 
 daries, and striking the vein of the first 
 location on its dip, without the knowl- 
 edge of the owners of the first location. 
 The statute would only begin to run 
 from the time that it became known to 
 the prior locator that the new location 
 was being worked on the same vein. 
 Pardee v. Murray, 4 Montana, 234; s. c, 
 2 Pac. Repr. 16. See Iron, etc., Co. v. 
 
 Cheesman, 13 Am. & Eng. Corp. Cas. , 
 552. 
 
 Where one has entered upon land un- 
 der a claim of title founded upon a writ- 
 ten instrument as a conveyance, his occu- 
 pation of the land by mining operations, 
 prosecuted as continuously as the nature 
 of the business and the custom of the 
 country permit, constitutes an adverse 
 possession. Stephenson v. Wil.^on; 50 
 Wis. 95; 37 Wis. 482; Wilson v. Henry, 
 40 Wis. 594. 
 
 Where a claimant of a placer-claim 
 makes his application for his patent 
 thereon, knowing nothing of the presence 
 of a quartz lode therein, and afterwards 
 a lode is discovered therein, he is en- 
 titled to the possession thereof as against 
 one who thereafter locates the lode. 
 Montana Copper Co. v. Dahl, g Pac. 
 Repr. (Mont,) 894. 
 
 A claimed a quarry on land adjacent to 
 his own. He leased the quarry, and con- 
 tinued to procure stoiie, and permitted 
 others to do so upon payment. Held, an 
 adverse possession. Colvin v. McCune, 
 39 Iowa, 502. 
 
 Coal in place is land. The grant of a 
 right to mine coal in the land of the les- 
 sor and remove it therefrom, although 
 the instrument may be called a lease, is 
 a grant of an interest in the land itself, 
 and not a mere license to take the coal. 
 App. of Hope, 3 East. Repr. (Pa.) 728. 
 
 Mere digging for coal in the winter, 
 and abandoning the property the rest of 
 the year, will not constitute adverse pos- 
 session. Jackson v. Stoetzel, 87 Pa. St. 
 302. 
 
 In Milligan v. Savery, g Pac. Repr. 
 894, it was held by the Montana Supreme 
 Court that titles to mining claims, before 
 the government has parted with its title 
 therein, are merely possessory, and in a 
 suit on an adverse cladm the question is 
 on the right to possession. An action 
 under § 2326 of U. S. Rev. St. to deter- 
 mine the right to the possession of a min 
 ing claim ought to be instituted accord- 
 ing to the forms and practice within the 
 jurisdiction where the suit is begun. In 
 Montana, if the plaintiff Is in possession 
 he should bring an action to quiet title; 
 if he is not in possession his action is in 
 the nature of ejectment. Possession, or 
 right of possession and ouster, should be 
 averred. 
 
 396 
 
Easement. ADVERSE POSSESSION. Eight of Way, 
 
 thereto. But a mere claim of a right to the use and enjoyment 
 of water, however long continued, will not ripen into adverse title 
 thereto. It is the actual appropriation, followed by open, notori- 
 ous, continuous, and exclusive possession for the time limited by 
 statute, under claim of title, that gives the right. So, too, on the 
 other hand, if the defendants used and held the water adversely 
 for the statutory period next before suit was brought, the mere 
 disputing their right to such possession by the plaintiffs would not 
 prevent the bar of the statute. The peaceable possession must be 
 disturbed — the continuity of such possession broken — within the 
 statutory period, in order to defeat the plea, if otherwise sup- 
 ported by proof.i (See also RIPARIAN RIGHTS ; WATERS AND 
 Watercourses.) 
 
 49. Easement. — The claim of a mere easement, or other right in 
 land less than the entire fee, does not confer any adverse right to 
 the fee ; but, to have that effect, under the statute, the claim 
 must be of the entire title, exclusive of the title of any other per- 
 son.* (See also EASEMENTS.) 
 
 50. Right of Way. — To acquire a right of way by prescription 
 there must be an adverse use of the way for the statutory period, 
 and this use must be continuous and as of right. If the use is in- 
 terrupted by the owner of the land, by obstructions placed upon 
 it, in the exercise of his right to prevent the use of the way, the 
 continuity of the use is broken. Whether the interruption is ac- 
 quiesced in by the claimant of the right of way, in such manner 
 that the subsequent use must be regarded as permissive, is a ques- 
 tion for the jury upon the facts.* (See also EASEMENTS.) 
 
 51. Highways. — A party can gain no title to a portion of a pub- 
 lic highway by occupying it from time to time, or even continu- 
 ously, for twenty years. When once established, a highway does 
 not cease to be such until discontinued by the proper authorities, 
 and any encroachment upon it by private parties becomes a nui- 
 sance which the town authorities may summarily remove.* 
 
 1. Cox V. Clough, II Pac. Repr. (Cal.) veston v. Menard, 23 Tex. 351; Lane v. 
 732; Angell on Watercourses (7th Ed.), Kennedy, 13 Ohio St. 42. See MUNICI- 
 §§ 2o8-2ig. This portion of the law of pal Corporations, infra, p. 300. 
 adverse possession will be fully treated As the commissioners of high ways can- 
 under titles Riparian Rights and not be grantors of land in any case what- 
 Waters and Watercourses. ever, their deed for a highway is void, 
 
 2. Dothard v. Denson, 75 Ala. 482. and cannot be relied on as color of title 
 This branch of the law of adverse pos- under the Limitation law. Pittsburgh, 
 session will be fully treated under the etc., R. Co. v. Reich, loi 111. 157. 
 
 title Easement. ^ A highway laid out by the original pro- 
 
 3. Webster v. Lowell, 6 East. Repr. prietors of a town ceased to be used by 
 (Mass.) 615. the public in 1812, but had never been 
 
 4. Driggs V. Phillips, 7 Eastn. Repr. (N. legally discontinued. At that time the 
 Y.) 410; McClelland v. Miller, 28 Ohio St. selectmen of the town undertook to con- 
 488; Brooks V, Riding, 46 Ind. 15 ; Visa- vey to S. by deed the interests of the town 
 lia V. Jacob, 65 Cal. 434; Hoadley v. San in it. S. fenced the land, and he and his 
 Francisco, 50 Cal. 265; People v. Pope, grantees held exclusive and adverse pos- 
 53 Cal. 437. Comi>areYox\.%ra\\ii V. Mc- session for over sixty years. Held, i. 
 Kibbin, 41 Ark. 45; s. c, 48 Am. Rep. 19; That the fact that the land was legally 
 Webber v. Chapman, 42 N. H. 326; Gal- highway (if it was still so to be regarded) 
 
 397 
 
Highways. 
 
 ADVERSE POSSESSION: 
 
 Public Lands. 
 
 52. Public Lands — United States. — Adverse possession cannot be 
 held as against the United States; and mere possession of the 
 land,, though open, exclusive, and uninterrupted, for twenty years 
 creates no impediment to a recovery by the government, and 
 none to a recovery by one who within that period receives its 
 conveyance. 1 
 
 did not prevent the adverse possession 
 running against the private right of an 
 adjoining owner. 2. That the deed of the 
 selectmen was admissible, although pass- 
 ing no title, as giving character to the 
 possession under it. Cady v. Fitzsim- 
 mons, 50 Conn. 209. 
 
 During the period between 1846 and 
 1867, T., plaintiff's predecessor in title, 
 once a year cut the grass from a small 
 plat of ground in the highway; a row of 
 trees was also planted by him in the high- 
 way in 1864, which were within a, few 
 years thereafter taken up or destroyed, 
 and he sometimes piled lumber in the 
 highway against his fence. He did not 
 occupy the highway in any other man- 
 ner. Held, that the evidence failed to 
 establish a claim by adverse possession. 
 Bliss V. Johnson, 94 N. Y. 235. 
 
 The setting-out of trees or the building 
 of a sidewalk in a highway by the owner 
 of adjoining lands is not such an occupa- 
 tion as can be made the foundation of a 
 claim to title by adverse possession as 
 against the true owner. Bliss v. John- 
 son, 94 N. Y. 235. 
 
 Fencing in a portion of the highway by 
 an adjoining landowner will not consti- 
 tute adverse possession. Brooks v. Rid- 
 ing, 46 Ind. 15. 
 
 Where a railroad crossing, in connec- 
 tion with the street which it crosses has 
 been used by the public as a highway for 
 more than twenty years, the street dur- 
 ing that period having been kept in repair 
 by the town, and the crossing during the 
 same period having been planked and 
 kept in repair by the railroad corpora- 
 tion, it is a question for the jury, upon 
 all the evidence, whether such use was 
 adverse and under a claim of right, or 
 merely permissive. Fitchburg R. Co. v. 
 Page, 131 Mass. 391; s. c, 7 Am. & 
 Eng. R. R. Cas. 86. 
 
 The use of a street by a railroad com- 
 pany in the usual way is not such a use 
 as will sustain a claim of adverse posses- 
 sion. Indianapolis, etc., R. Co. v. Ross, 
 47 Ind. 25. 
 
 To establish a by-road from twenty 
 years' uninterrupted adverse enjoyment, 
 there must be a certain well-defined line 
 of travel in the same place over the en- 
 tire route for all that time. South Br. 
 
 R. Co. V. Parker, 6 Eastn. Repr. (N. J.) 
 
 596. 
 
 An adverse use, under an issue of pri- 
 vate right of way by prescription, the 
 right of way being over and along a high- 
 way, commences from the abandonment 
 of the highway. Black v. O'Hara, 5 Atl. 
 Repr. (Conn.) 598. 
 
 One who buys lots which his deed de- 
 scribes according to a recorded plat is es- 
 topped from disputing the dedication and 
 acceptance of an alley which appears 
 thereon as bounding his lots and passing 
 between them; and the mere occupancy 
 by him of the space designed for the al- 
 ley, without claim or color of title, does 
 not establish an adverse possession until 
 the interests of some one else are affect- 
 ed by it, nor will it entitle him to main- 
 tain trespass against a, neighboring lot- 
 owner for driving through the alley and 
 tearing down obstructions placed there to 
 prevent his using it. Marble v. Price, 54 
 Mich. 466. 
 
 1. Oaksmith v. Johnson, 92 U. S. 343. 
 See Farley v. Smith, 39 Ala. 38; Gardi- 
 ner V. Miller, 47 Cal. 570; Union, etc., 
 Co. V. Ferris, 2 Sawy. (U. S.) 176. 
 
 There can be no adverse possession as 
 against the United States, or its grantee, 
 unless there be a new entry after the 
 grant; the individual making the original 
 entry, after the grant by the United States, 
 remains an intruder. Cook ■». Foster, 2 
 Gilm. 652; Hughes i-. Stevers, 95 111 
 391; Thompson v. Prince, 67 111. 281. 
 
 The statute cannot avail a pre emption 
 claimant whose pre-emption claim is of 
 land already held by a private individual 
 under patent, or location and survey, 
 which would entitle him to a patent. 
 Clark V. Smith, 59 Tex. 275; Sutton v. 
 Carabajal, 26 Tex. 500; Buford v. Bost- 
 wick, 58 Tex. 63. 
 
 A person claiming under a patent 
 from the United States, or any one suc- 
 ceeding to his rights, may be barred of 
 his right of entry or action by an adverse 
 possession held continuously for ten 
 years. Coker v. Ferguson, 70 Ala. ■284; 
 Union, etc., Co. v. Ferris, 2 Sawy. (U. 
 S.) 176. 
 
 The title of a claimant of a common 
 field lot, confirmed by the first section of 
 the act of Congress of June 13, 1812, 
 
state Lands, 
 
 ADVERSE POSSESSION. 
 
 State Lands, 
 
 53. State Lands. — Unless the State is especially included in the 
 operation of a statute of limitation, such statute will not apply 
 to the State. This is equally true of statutes of limitation bar- 
 ring the right of entry to lands after a certain period of adverse 
 
 possession.^ 
 
 was completely vested in him by said 
 act at its date; and title by adverse pos- 
 session under the statute of limitations 
 might begin to ripen against him from 
 and after such date, without regard to the 
 date of survey of his lot, the approval 
 thereof, or of its return to the office of 
 the recorder of land titles. Peting v. 
 De Lore,- 71 Mo. 13. 
 
 The receipt issued by the receiver of 
 the land-office upon payment of the pur- 
 chase price of land to the government, 
 containing a description of the land, con- 
 stitutes such a conveyance of the prem- 
 ises as contemplates a proper foundation 
 for adverse possession. Qawley v, John- 
 son, 21 Fed. Repr. 492. 
 
 Land-office certificates operate as a 
 severance' of the land from the public 
 domain, and the statute will commence 
 to run from the date of issue if accom- 
 panied by actual possession. Gay v. 
 Ellis, 33 La. Ann. 249. 
 
 Limitation cannot be held to have 
 ■commmenced running prior to the date 
 of the patent. Manly v. Hewlett, 55 
 Cat. 94; Matthews v. Ferrea, 45 Cal. 51; 
 Ross V. Evans, 4 Pac, Repr. (Cal.) 443; 
 Treadway v. Wilder, 12 Nev. 108. 
 
 Where the plaintiff claims title under 
 a patent issued to him within three 
 ■years before the commencement of the 
 action, and there is no evidence of any 
 ■prior claim or act of ownership by any 
 person claiming under the United States, 
 the defendant cannot defeat a recovery 
 by setting up his adverse possession, or 
 his purchase at tax sale, prior to the date 
 ■of plaintiff's patent. Bonner v. Phillips, 
 77 Ala. 427. 
 
 Where a person obtained a patent 
 from the United States, while another 
 was in possession under an entry made 
 prior to that time, it appeared the pat- 
 entee stated, after the grant from the 
 government, that the person in posses- 
 sion had bought the land, and that he, 
 the patentee, had made him a deed, and 
 that, subsequently, the occupant gave it 
 back to him to secure a store account, 
 and that the occupant had paid him for 
 the land. The witness by whom this 
 statement was proven also testified that 
 he had known the occupant for twenty- 
 five years on the land; that he claimed 
 the premises, cleared and built on it, and 
 cut timber' on it, and that the statements 
 
 by the patentee were made more than 
 twenty years before the trial. It was 
 held that, under this state of facts, it 
 might be regarded the possession of the 
 occupant was adverse to the patentee, as 
 showing what would be tantamount to a 
 new entry after the grant from the United 
 States; that the occupant was holding 
 adverse to all the world, in his own right, 
 as owner by purchase of the title from 
 the patentee. Hughes v. Stevers, 05 
 111.391- 
 
 1. State V. School Dist., 9 Am. & Eng. 
 Corp. Cas. 587; s. c, 34 Kan. 237; Des 
 Moines v. Harker, 34 Iowa, 84; Gardner 
 V. Miller, 47 Cal. 508; Caryz/. Whitney, 
 48 Me. 516; Alton v. Illinois, etc., Co., 
 12 111. 38; Smead v. Williams, 6 Ga. 15S; 
 Walls V. McGee, 4 Harr (Del.) 108. See 
 Brinsfield v. Carter, 2 Ga. 143; Wright 
 V. Swan, 6 Port. (Ala.) 84; Doe v. Towns- 
 ley's Heirs, 16 Ala. 239; Troutman v. 
 May, 33 Pa. St. 455; Wallace's Lessees. 
 Miner, 6 Ohio, 366; Harlock v. Jackson, 
 3 Brev. (S. Car.) 254; State v. Arledge, 2 
 Bailey (S. Car.), 401; Lindsey v. Miller, 
 6 Pet. (U. S.) 666; Wilson v. Hudson, 8 
 Yerg. (Tenn.) 398; Levasser, v. Wash- 
 burn, II Gratt. (Va.) 572; Kirschner v. 
 Western, etc., R. Co., 67 Ga. 760; 
 Glaze V. Western, etc., R. Co., 67 Ga. 
 761. 
 
 In the absence of proof to the Con- 
 trary, the use and occupation of the 
 State's land by a county will be presumed 
 to be by sufferance and without any in- 
 tention of the county to appropriate it to 
 itself; and mere permissive possession, 
 however long, can never ripen into a 
 title. Pulaski Co. v. State, 42 Ark. 
 118. 
 
 A patent issued by the proper officers 
 of the State upon a valid land certificate, 
 though issued to one claiming under a 
 forged transfer of the certificate, conveys 
 title within the meaning of the statute of 
 limitations of three years. One having 
 a pre-existing right attempted to be con- 
 veyed by the forged transfer is not con- 
 cluded by the issuance of the patent, nor 
 is the Slate; but as to all other persons 
 the patent is conclusive in favor of the 
 patentee. League v. Rogan, 59 Tex. 
 427. 
 
 Where the parties and their privies 
 have been in possession of thei land for 
 a very long period the law will presume 
 
 299 
 
Uunicipal Corporations. AD VERSE POSSESSION. Itunicipal Corporations.. 
 
 54. Municipal Corporations. — We present: herewith the authori- 
 ties upon this interesting but much vexed question arranged ac- 
 cording to States. The question, briefly stated, is this : Can title 
 be acquired, by adverse possession through the period fixed by 
 statutes of limitation to property held by a municipal corpora- 
 tion ?i (See also Municipal Corporations.) 
 
 a grant from the State. Davis v, 
 Mc Arthur, 78 N. Car. 357; Tray w, Nor- 
 wic}i, etc., R. Co., 39 Conn. 392; Mayor 
 of Hull V. Horner, I Cowp. 102. See U. 
 S. V. Williams, 5 McL. (U. S.) 183; 
 Swearingen w. U. S., 11 G. & J.(Md.) 373. 
 
 A bona-fide entry upon part of the 
 land, under a certificate of entry, will 
 start the running of the statute as to the 
 whole tract. Hannibal, etc., R. Co. v. 
 Clark, 68 Mo. 371. 
 
 The statute does not commence to run 
 against a title founded upon a certificate 
 of purchase from the State of swamp and 
 overflowed lands until the same have 
 been certified to the State by the United 
 States government. Packard v. Moss, 8 
 Pac. Repr. (Cal.)8i8. 
 
 The issuance of a patent, being au- 
 thorized upon a certificate found to be 
 genuine and legal by the travelling board, 
 but not recommended for patent because 
 not obtained in strict accordance with 
 law, such certificate was thereby vali- 
 dated; and possession of land for the 
 period prescribed by law under a location 
 of such certificate and survey is sufficient 
 to support the defence of the statute of 
 limitations. Spofford v. Bennett, 55 
 Tex. 293. 
 
 Massaohusetts — Mississippi, — As to the 
 rule in these States, see Nichols v. 
 Boston, 98 Mass. 39; Green v. Irving, 
 54 Miss. 450. 
 
 Grant. — Where plaintiff in ejectment 
 relies upon the presumption of a grant 
 from the State arising from an adverse 
 possession of thirty years, and introduces 
 deeds which contain no metes and bounds 
 or description by which the land can be 
 located, and offers no evidence of known 
 and visible boundaries, held, that he can- 
 not recover. Price v. Jackson, 91 N. 
 Car. II. 
 
 A party who relies on thirty years' ad- 
 verse possession to presume a grant is 
 not bound to show that he and those 
 under whom he claims held the posses- 
 sion and claimed the land up to visible 
 boundaries under the law as it existed 
 when this action was brought. Yount v. 
 Miller, 91 N. Car. 331. 
 
 Where an easement is granted, to be 
 exercised within certain limits, and the 
 grantor openly exercises a privilege in 
 
 excess of the limit continuously and 
 without interruption for twenty-one years 
 under cl^im of right, the law may pre- 
 sume a second grant superadded to the 
 first, coveringthe larger right. Gerhman 
 V. Erdman, 105 Pa. St. 371. 
 
 In ejectment, the plaintiffs claimed un- 
 der a grant obtained in 1831, the defend- 
 ants under an entry made in 1836 and 
 grant thereon issued in 1848, and contin- 
 uous adverse possession of portions of the- 
 land within the entry and grant. There 
 was evidence tending to > show that the 
 person making the entry in 1836 had, at 
 the time, under inclosure portions of the 
 lands under entries made previous to 
 1831, the boundaries of which, if ever 
 surveyed, were abandoned after the entry 
 of 1836, which included them all, and 
 could not, in a single instance, be identi- 
 fied at the trial. The inclosures of the 
 defendants had been largely extended 
 since 1831, and since the entry in 1836 
 and the grant in 1848. Held, that the 
 title of the defendants had been perfected, 
 by the statute to the extent of the boun- 
 daries of their grant and survey. Peck 
 V. Houston, 5 Lea (Tenn.), 491. 
 
 1. States holding that such Title caa 
 be acquired. -rF>««««<. — Knight w. Hea- 
 ton, 22 Vt. 480. 
 
 Massachusetts. — See City of Wheeling, 
 V. Campbell, 12 W. Va. 66. 
 
 New York. — Varick v. Cor. of New 
 York, 4 Johns. (N. Y.) 53. See also- 
 Sherman v. Kane, 86 N. Y. 57. 
 
 Connecticut. — Litchfield v. Wilmot, a 
 Root (Conn.), 288; Beardslee v. French, 
 7 Conn. 125. 
 
 Maryland. — See City of Wheeling w. 
 Campbell, 12 W. Va. 66. 
 
 Virginia. — City of Richmond v. Poe, 
 24 Gratt. 149; Manchester Cotton Mills?;. 
 Town of Manchester, 25 Gratt. 825. See, 
 also, Levasser v. Washburn, 11 Gratt. 
 
 572. 
 
 North Carolina, — Armstrong v. Dalton, 
 4 Dev. 368. 
 
 South Carolina, — Bowen v. Learn, 6- 
 Rich. 298; State v. Pettis, 7 Rich. 390. 
 
 Mississippi. — Clemants v. Anderson,^ 
 46 Miss. 581. But see City of Vicks- 
 burg V. Marshall, 59 Miss. 563. 
 
 Texas. — City of Galveston v. Menard,. 
 23 Tex. 349. 
 
 300 
 
Munioipal Corporations. ADVERSE POSSESSION. 
 
 Effect. 
 
 55. Effect. — Adverse possession not only entitles the adverse pos- 
 sessor, like every other possessor, to be protected in his possession 
 
 Missouri. — County of St. ChEirles v. 
 Powell, 22 Mo. 525; School Directors v. 
 Georges 50 Mo. 194. 
 
 Kentucky. — Rowan's Exrs. v. Town of 
 Portland, 8 B. Mon. 232; Dudley v. 
 Trustees of Frankfort, 12 B. Mon. 610; 
 Alvin V. Town of Henderson, 16 B. 
 Mon. 131. 
 
 Ohio. — City of Cincinnati v. Evans, 5 
 Ohio St. 594; Lake v. Kennedy, 13 Ohio 
 St. 42; Cincinnati v. First Presbyterian 
 Church, 8 Ohio, 298. 
 
 Illinois. — City of Peoria v. Johnson, 
 56 111. 45; Chicago, R. I. & P. R. v. 
 City of Joliet, 79 HI. 40. 
 
 /ow/a.— City of Pella v. Scholte, 24 
 Iowa, 128; Burlington v. Railroad Co., 
 41 Iowa. 134. 
 
 States holding that such Title cannot 
 be acquired. — Pennsylvania. — Common- 
 wealth V. McDonald, 16. S. & R. 401; 
 Rung V. Shoenberger, 2 Watts, 23; City 
 of Philadelphia v. Phila. & Reading R., 
 58 Pa. St. 263; Comm. v. Alburger, 
 I Whart. 469; Barter v. Comm., 3 P. & 
 W. 253; Penny Pat. Landing Case, 16 
 Pa. St. 79 ; Evans v. Erie County, 66 Pa. 
 St. 222. 
 
 New Jersey. — Cross v. Mayor, 18 N. 
 J. Eq. 311; Jersey City v. State, 30 N. 
 J. L. 521; Mayor, etc., v. Morris Canal 
 & Banking Co., I Beas. 561. 
 
 Rhode Island. — Simmons v. Cornell, I 
 R. I. 519. 
 
 Louisiana. — Mayer v. Magnon, 4 Mart. 
 I; S. P. Mayor, etc., v. Maggioli, 4 La. 
 Ann, 73; Ingram v. Police Jury, 20 La. 
 Ann. 226. See, also, Delabigarre v. Sec- 
 ond Municipality, 3 La. Ann. 230; 
 Shreveport v. Walpole, 22 La. Ann. 526. 
 
 Indiana. — Sims v. City of Frankfort, 
 79 Ind. 446. 
 
 See, generally. Lane v. Kennedy, 13 
 Ohio St. 42; New Orleans v. United 
 States, 10 Pet. 662; De Vaux v. Detroit, 
 Harring, Ch. (Mich.) 98; Brooks v. Rid- 
 ing, 46 Ind. 15; Abernethy v. Dennis, 49 
 Mo. 468; Baker v. Johnson, 33 Iowa, 
 151; Newport v. Taylor, 16 B. Mon. 
 (Ky.) 699; Paine v. Commissioner, etc., 
 Wright's (Ohio) Rep. 417; Kelly's Les- 
 see V. Greenfield, 2 Har. & McHen. 
 (Md.) 132; North Hempstead v. Hemp- 
 stead, 2 Wend. (N. Y.) 137; St, Charles 
 V. Powell. 22 Mo. 525; Armstrong v. 
 Dalton, 4 Dev. (N. Car.) 568; County v. 
 Brinthail, 29 Pa. St. 38; St. Louis v. 
 Newman, 45 Mo. 138; Smith v. State, 23 
 N |. L. 7t2, Manko v. Chambersburg, 
 25 N j. Eq. 168; Burbank v. Fay, 65 N. 
 Y. 57, I., P. & C. R. V. Ross, 47 Ind. 
 
 25; Sims V. Chattanooga, i Lea (Tenn.), 
 694; Shreveport v. Walpole, 22 La. Ann. 
 526; Henshaw v. Hunting, i Gray (Mass.), 
 203; Fox V. Hart, 11 Ohio, 414; McFar- 
 lane v. Kerr, 10 Bosw. (N. Y.) 249; Kel- 
 logg 11. Thompson, 66 N. Y. 88; State v. 
 Pettis, 7 Rich. (S. Car.) Law, 390; Mem- 
 phis V. Lenore, 6 Coldw. (Tenn.) 412; 
 Bowen I/. Team, 6 Rich. 298; Brooks v. 
 Riding, 46 Ind. 19; Mitchell v. Rome, 
 49 Ga. 19. 
 
 In City of Wheeling v. Campbell, 12 
 W. Va. 36, the learned judge, after a very 
 complete review of the authorities, and 
 showing the disproportion between them, 
 continues : " We see no reason why mu- 
 nicipal corporations should not be held 
 to the same degree of diligence in guard- 
 ing their streets and squares from en- 
 croachments as natural persons are in pro- 
 tecting their property from the adverse 
 claims of others. We do see great reason 
 why no time should bar the sovereign 
 power, because the officers of the sov- 
 ereign, whether king or state, have 
 such various and onerous duties to 
 perform that the rights of the sover- 
 eign may be neglected; and all the 
 people of the kingdom or state are 
 interested in having the rights of the sov- 
 ereign preserved intact, and not subject 
 to be impaired or lost by the neglect of 
 officers; but the same reason does not 
 apply to a municipal corporation. A city 
 or town is a compact community, with its 
 city or town council, its committee on 
 streets and alleys, and its street commis- 
 sioners, whose special duty it is to see 
 that the streets and alleys and squares 
 are kept in proper order and free from 
 obstructions and encroachments. And if 
 with all this machinery and power confined 
 to so narrow a compass, and the interest 
 of the corporation to exercise it, the city 
 authorities permit an individual to en- 
 croach upon the streets, alleys, or squares 
 of the city, and hold, enjoy, and occupy 
 the same, claiming them as his own un- 
 der his title, without interruption or dis- 
 turbance in that right, for the period pre- 
 scribed in the statute of limitations, the 
 city not only does, but we think accord- 
 ing to reason as well as authority, ought 
 to, lose all right therdto." 
 
 Two of the latest cases upon the ques- 
 tion will be-examined with interest. In 
 City of Vicksburg v. Marshall, 59' Miss. 
 563. it is held that streets in a city are 
 held by the corporation in trust for the 
 public, and_ adverse possession by an 
 abutting lot-owner cannot bar the city's 
 
 301 
 
Municipal Corporations. ADVERSE POSSESSION. 
 
 Effect. 
 
 against all who cannot show a better title, but also, if the adverse 
 possessor remains in possession for the statutory time, produces 
 
 right to open them for public use. This 
 case, to all appearances, is a reversal of 
 the decision in Clemants v. Anderson, 46 
 Miss. 581; but that case does not seem to 
 have been referred to by the court, which 
 affirms the opinion expressed in Dillon's 
 Mun. Corp. sec. 675. Another case, 
 Sims. V. City of Frankfort, 79 Ind. 446, 
 is to the same effect, and the opinion is 
 able: and interesting. 
 
 Adverse possession of an alley in a 
 city for the statutory period will give title 
 to the occupant and bar the city. Fort 
 Smith w. McKibbins, 41 Ark. 45; s. c, 5 
 Am. & Eng. Corp. Cas. 453; Wheeling 
 V. Campbell, 12 W. Va. 36; Pella v. 
 Scholte, 24 Iowa, 283; Dudley v. Trus- 
 tees, 12 B. Men. (Ky.) 610. 
 
 Title to lands cannot be acquired by 
 adverse possession after the same have 
 been dedicated as a public street. Visalia 
 V. Jacob, 6 Am. & Eng. Corp. Cas. 115; 
 s. c.,65 Cal. 434. 
 
 Occupancy of a street or alley of a town 
 or city, by fencing the same up, is not 
 adverse when such occupancy is by the 
 permission of the town or city authori- 
 ties. Such permission creates between 
 the town or city and the possessor the 
 relation of landlord and tenant. Such a 
 holding cannot afterwards become ad- 
 verse so as to sustain a plea of limitation 
 until the possessor does some open, hos- 
 tile act, clearly indicating his adverse 
 claim; and this rule applies to the heir 
 who continues the occupancy which was 
 received from the ancestor. Carter v. 
 La Grange, 60 Tex. 636." See Cheek v. 
 Aurora, 4 Am. & Eng. Corp. Cas. 512; 
 s. c, 92 Ind. 107. 
 
 In County of Piatt v. Goodall. 97 III. 
 84, the court said : " Upon a careful con- 
 sideration of the authorities, the better 
 opinion would seem to be that municipal 
 corporations, in all matters involving 
 mere private rights, as contradistin- 
 guished from public rights, strictly so 
 called, are subject to limitation laws to 
 the same extent as private individuals. 
 On the other hand, in all matters involv- 
 ing strictly public rights, they are not 
 subject to the limitation laws as such. 
 But, in the latter class of cases, courts 
 occasionally, undei'special circumstances 
 which would make it highly inequitable 
 or oppressive to enforce such public 
 rights, interpose by holding the munici- 
 pality estopped from doing so." 
 
 In the year 1801. the city of New York 
 sold to W. lot 194 of its " common 
 
 lands," so called, the deed describing it 
 as then being in the possession of W. 
 There was a line clearly marking K.'s 
 possession on the south. In 1804, the 
 city leased lot No. 193, adjoining lot 194, 
 on the south; there was then a wall line 
 clearly marking W.'s possession on the 
 south. The tenants of the city occupied 
 lot 193 from the time of said leasing con- 
 tinuously up to 1852, having possession 
 and cultivating up to the said line, W. 
 and his successors in interest occupying 
 north of the line. The city also paid 
 assessments on the land up to said line. 
 In proceedings to open a street across 
 the lots the city treated lot No. 194 as 
 only extending south to said line, paying 
 S., plaintiff's ancestor and the successor 
 to the title of W., the amount awarded, 
 which he received without dissent or 
 claim of title south of the line. Upon the 
 city maps said line was recognized as 
 the boundary between the lots. From 
 1852 up to 1866 the lands south of said 
 line remained vacant; in the year last 
 mentioned they were sold by the city to 
 defendant, K. In an action of ejectment 
 brought to recover a parcel of land lying 
 south of said line, held, that if the same 
 was covered by the description in the 
 deed to W., the city reacquired title by 
 adverse possession; that its possession 
 could not be presumed to have been in 
 subo.rdination to W.'s title; and that the, 
 title so acquired was not lost by the fail- 
 ure to occupy after 1:852. In 1851, the 
 city executed to S. a release of ground- 
 rent on lot 194. Held, that this did not 
 affect its title, as it was evidently intended 
 to only embrace lot No. 194, as then 
 possessed by S. Sherman v. Kane, 86 
 N. Y. 57. 
 
 In Alton w. 111. Trans. Co., 12 111. 38, 
 the court. said: "Whatever title to public 
 grounds maybe vested in the city, she 
 has not the unqualified control and dis- 
 position of them. They were dedicated 
 to the public for particular purposes, and 
 only for such purposes' can they be right- 
 fully used. For those purposes the city 
 may improve and control them, and 
 adopt all needful rules and regulations 
 for their management and use; but she 
 cannot alien or otherwise dispose of them 
 for her own exclusive benefit; nor are 
 they subject to the payment of her debts. 
 At most she but holds them in trust for 
 the benefit of the public. The right to 
 the use of the property is not limited ex- 
 clusively to the citizens of A., but the 
 
 303 
 
£ffeot. 
 
 ADVERSE FOSSESSIOJSr. 
 
 Evidence. 
 
 the effect either of barring the right of the true owner, and thus 
 converting the possessor into the owner, or of depriving the true 
 owner of his right of action to recover his property.^ 
 
 56. Evidence. — Adverse possession is a fact which must be 
 proved, and the burden is always cast upon him who interposes 
 and relies upon it as a defence. Btit an actual occupancy of land 
 by a defendant, or by those under whom he derives title or pos- 
 session, accompanied by acts of ownership inconsistent with the 
 fact of ownership in another, is presumptively adverse possession,* 
 
 citizens of the State generally have an 
 equal right with them in the appropriate 
 enjoyment of the dedication." 
 
 1. Clancey v. Houdlette, 39 Me. 451; 
 Hodges V. Eddy, 41 Vt. 485; Austin v. 
 Bailey, 37 Vt. 224; Peele v. Chevees, 8 
 Allen (Mass.), 89; Jackson v. Dieffendorf, 
 3 Johns. (N. Y.) 269: Reed v. Farr, 35 
 N. Y. 113; Reformed Church v. School- 
 craft, 65 N. Y. 134; Schriver v. Schriver, 
 86 N. Y. 575; Schall V. Williams Valley 
 R. Co., 35 Pa. St. 191; Moore v. Luce, 
 39 Pa. St. 260; Munshower v. Patton, 
 10 S. & R.»(Pa.) 334; s. c, 13 Am. 
 Dec. 678; Watson v. Gregg, 10 Watts 
 (Pa.), 289; s. c, 36 Am. Dec. 176; 
 Doe J'. Roe. 13 Fla. 602; Dixon v. Cook, 
 
 47 Miss. 220; Walker j». Ray, iii 111. 
 315; Bunce v. Bidwell, 43 Mich. 542; 
 Dupont V. Starring, 42 Mich. 492; Smith 
 V. Hamilton, 20 Mich. 433; Ridgway v. 
 Ludlow, 58 Ind. 248; Bowan w. Preston, 
 
 48 Ind. 367; De Long v. Mulcher, 47 
 Iowa, 445; Williams t/. Thomas, 65 Iowa, 
 183; Ridway z/. Halliday, 59 Mo 444; 
 Barry v. Otto, 56 Mo. 177; Shepley v. 
 Cowan, 52 Mo. 559; Bank v. Evans, 51 
 Mo. 335; Blair v. Smith, 16 Mo. 273; 
 Horbach v. Miller, 4 Neb. 31; Simson v. 
 Eckstein, 22 Cal. 580; Crockett v. Lash- 
 brook, 5 T. B. Mon. (Ky.) 53°; s. c, 17 
 Am. Dec. 98; Brent v. Chapman, 5 
 Cranch. (U. S.) 358; Leffingwell v. War- 
 ren. 2 Black (U. S.). 599; Croxall v. 
 Shererd, 5 Wall. (U'. S.) 289; Bicknell v. 
 Comstock, 113 U. S. 149; Dickerson v. 
 Colgrove, 100 U. S. 578. 
 
 A verbal statement, by one whose title 
 by adverse possession is complete, to the 
 owner of the paper title, that the former 
 "recollected that there was a claim taken 
 Tip for the property," and if the latter 
 "believed that he was entitled to it, to 
 go ahead and take it. and he would make 
 no objections," is inefifectual to divest 
 the title by possession. Byers v. Shep- 
 lar, 5 Cent. Repr. (Pa.) 293' 
 
 2. Hood ci. Hood, 2 Grant (Pa.). 229; 
 Bradford v. Guthrie, 4 Brews. (Pa.) 351; 
 Jackson v. Woodruff, I Cow. (N. Y.) 276; 
 s. c. 13 Am. Dec. 525: Russell v. Davis, 
 38 Conn. 562; Johnston v. Gorham, 38 
 
 Conn. 513; Rowland v. Updike, 4 Dutch. 
 (N. J.) loi; Parker v. Banks, 79 N. Car. 
 480; Alexander v. Polk, 39 Miss. 737; 
 Lynde v. Williams, 68 Mo. 360; Jackson 
 V. Berner, 48 111. 203; Sharp v. Daugney, 
 33 Cal. 505. 
 
 Every possession of land by one other 
 than the claimant is deemed to be ad- 
 verse until proof to the contrary is made. 
 Ruffin V. Overby, 88 N. Car. 369. See 
 Wilson V. Spring, 38 Ark. 181; Currie v. 
 Gale, 9 Allen (Mass.), 522. 
 
 The fact that the plaintiff's grantor 
 abandoned or relinquished the possession 
 of the premises in controversy to the de- 
 fendant absolutely, for any cause or con- 
 sideration, and that the latter thereupon 
 took and held such possession to the ex- 
 clusion of such grantor and his assigns, 
 may be shown by parol in support of the 
 defence of the statute. The fact that a 
 parcel of land does not appear on the as- 
 sessment roll of the county in a given 
 year as the property of the defendant, in 
 an action for the recovery of the same, 
 does not tend to contradict the testimony 
 of such defendant to the effect that he 
 paid the taxes thereon, as owner, in such 
 year; nor is it competent evidence in 
 such action, for or against either party, 
 of the ownership of such land. Zeilin v. 
 Rogers, 21 Fed. Repr. 103. 
 
 Proof of a recortjed deed is not suffi- 
 cient without proof of possession taken 
 and held under it. Lipscomb v. McClel- 
 lan, 72 Ala. 151. 
 
 Evidence that a party was in posses- 
 sion of land for the statutory period of 
 limitations, which he had mortgaged and 
 afterwards scheduled in bankruptcy, sub- 
 ject to the mortgage, but not showing 
 how or by what acts he maintained his 
 possession, nor the nature of the property, 
 how improved, or whether improved at 
 all, is not evidence of adverse possession, 
 Brookfield v. Stephens, 40 Ark. 366. 
 
 Where the title relied on by the plain- 
 tiff is that given by the statute of limita- 
 tions for adverse possession during the 
 statutory time, a deed in fee of the land 
 from the plaintiff to the defendant, given 
 more than ten years before the bringing 
 
 303 
 
Evidence. 
 
 ADVERSE POSSESSION. 
 
 Eyidence.. 
 
 liable to be rebutted by countervailing proof to the contrary. 
 
 of the action, is competent evidence, in 
 connection with a parol lease taken by 
 the plaintiff from the defendant, to show 
 that the possession was not adverse. 
 Roggencamp v. Converse, 15 Neb. 105. 
 
 The onus is on one who seeks protec- 
 tion as an adverse possessor to show a 
 hostile possession; but the court pro- 
 nounces as matter of law the facts 
 which enter into and constitute such a 
 possession. Potts v. Coleman, 67 Ala. 
 221. 
 
 The payment of taxes on a tract of 
 land is not evidence of adverse posses- 
 sion. Raymond v. Morrison, 59 Iowa, 
 371; Chapman v. Templeton, 53 Mo. 
 463; McDermott v. Huffman, 70 Pa. St. 
 
 131- 
 
 Where the defendant in ejectment re- 
 lies upon mere possession, his evidence 
 must distinctly show the limits of his 
 possession. Hughes u. Israel, 73 Mo. 
 538. 
 
 In ejectment where the plaintiff claims 
 title by adverse possession, it is proper 
 to permit him to show that the land was 
 generally called and spoken of as his in 
 the neighborhood, as this tends to prove 
 the notoriety of his claim of title. Spar- 
 row V. Honey, 44 Mich. 63. 
 
 A judgment roll is admissible as evi- 
 dence of the defendant's adverse posses- 
 sion. Unger v. Roper, 53 Cal. 39. 
 
 Declarations that a party does not hold 
 adversely are admissible. Hall v. SiUo- 
 way, I Allen (Mass.), 21; McNamee v.. 
 Moreland, 26 Iowa, 96; Leger v. Doyle, 
 II Rich. (S. Car.) 109; Breidegam i'. Hoff- 
 master, 61 Pa. St. 223; Curleez'. Smith, 91 
 N. Car. 172; Clements v. Wheeler, 62 
 Ga. 53. 
 
 Declarations of a party in possession 
 are not admissible to prove adverse pos- 
 session, except when part of the nsgesla, 
 or made against his own interest. Sau- 
 gatuck Cong. Soc. v. East Saugatuck 
 School Disc, 2 Atl. Repr. (Conn.) 751. 
 
 The adverse character of the posses- 
 sion is ordinarily, if not always, shown 
 by the facts of the case, and does not re- 
 ceive its character from the declarations 
 of the party in possession, except when 
 such declarations maybe regarded as res 
 gestm; consequently, as the mere decla- 
 rations of a party cannot be admitted in 
 his own favor, it follows that the absence 
 of such declarations cannot be shown by 
 the adverse party against him. Seymour 
 V. Ohio River School Dist,, 4 Atl. Repr. 
 (Conn.) 244. 
 
 Proof of a verbal sale of the interest 
 
 of one of the heirs loan estate to another 
 of the heirs, followed by 20 years' ad- 
 verse possession in such other heir, held 
 to create a sufficient title in the latter. 
 Hyne v. Osborn, 28 N. W. Repr. (Mich.) 
 821. 
 
 Evidence is admissible to show that a 
 person, since dead, was in occupation. 
 Lick V. Diaz, 44 Cal. 479. 
 
 It is not necessary to show by direct 
 and pointed evidence that the co-tenant 
 has such knowledge of the adverse claim. 
 It is sufficient if it is not shown other- 
 wise, and the circumstances are such that 
 it may reasonably be presumed that the 
 co-tenant has such knowledge. Knowles. 
 V. Brown, 28 N. W. Repr. (Iowa), 409. 
 
 The record of proceedings in an action 
 of trespass is evidence of a claim of title. 
 Hollister v. Young, 42 Vt. 403. 
 
 Where, in ejectment, the defendant 
 sets up title in his landlord acquired by 
 adverse possession, the evidence of a dis- 
 claimer by the landlord in a prior eject- 
 ment suit for the same premises against 
 the then possessor is admissjble in such 
 action. Dillon v. Center, 10 Pac. Repr> 
 (Cal.) 176. 
 
 In ejectment, plaintiff fclaimed title from 
 a deceased ancestor; widow of ancestor 
 remained in possession, and, on petition 
 asserting that her husband left no heirs, 
 obtained an act of legislature granting 
 her the rights of the State in the land ;. 
 widow married again, and after her d^ath 
 her husband remained in possession for 
 over twenty years. Held, proper for the 
 jury to determine whether the widow's, 
 and her surviving husband's possession 
 was adverse to any heir-at-law. Colgan 
 Tj. Pellans, 48 N. J L. 27. 
 
 The owner of the servient tenement 
 may show that the right claimed is one 
 that could not be granted away, or that 
 the owner of the servient tenement was 
 legally incapable of making, or the owner 
 of the dominant tenement incapable of 
 receiving, such a grant. He may explain 
 the user or enjoyment by showing that it 
 was under permission asked and grant- 
 ed, or that it was secret and without 
 means of knowledge on his part, or that 
 the user was such as to be neither physi- 
 cally capable of preventiotl nor action 
 able. But if there be neither legal in- 
 competency nor physical incapacity, and 
 the user be open and notorious, and be 
 such as to be actionable or capable of 
 prevention, the servient owner can only 
 defeat the acquisition of the right on the 
 ground that 'the user was contentious, ot 
 
 304 
 
Evidence. 
 
 ADVERSE POSSESSION. 
 
 Evidence. 
 
 Tbe proof to sustain an adverse possession must not be inferen- 
 tial, but clear and positive.^ 
 
 the continuity of the enjoyment was in- 
 terrupted during the period of prescrip- 
 tion. Lehigh Valley R. Co. v. McFar- 
 lan, 43 N. J. L. 695. 
 
 Where the parties in ejectment, being 
 co-tenants, rely upon an ouster, and the 
 defendant claims title by adverse posses- 
 sion, the plaintiff has the burden of show- 
 ing that he was ousted within the period 
 of the statute of limitations, and the de- 
 fendant of showing that he had ousted 
 the adverse claimant so long before that 
 the period of limitation had run since. 
 Highstone v. Burdette, 54 Mich. 329. 
 
 Ouster is a question of fact which it is 
 the province of the jury to determine, 
 and the facts and circumstances which go 
 to establish the ouster ought, under proper 
 instructions from the court, to be submit- 
 ted to the jury. Cummings v. Wyman. 10 
 Mass. 465; Taylor z/. Hill, 10 Leigh (Va.), 
 -457; Purcellw. Wilson, 4 Gratt. (Va.) 16; 
 Harmon v. James, 7 Sm. & M. (Miss.) 
 Ill; Blackmore v. Gregg, 2 W.& S. (Pa.) 
 182; Washburne v. Cutter, 17 Minn. 361; 
 Carpentier v. Mendenhall, 28 Cal. 484; 
 Clark V. Crego, 47 Barb. (N. Y.) 599; 
 Highstone v. Burdette, 54 Mich. 329. 
 And the burden of proof rests upon the 
 party alleging it. Newell v. Woodruff, 
 30 Conn. 492; Van Bibber v. Ferdinand, 
 17 Md. 436; Highstone v. Burdette, 54 
 Mich. 329. 
 
 Whether an agreement has been made 
 and acted upon by two owners of adjoin- 
 ing lands, that a division fence should be 
 the dividing line between their respective 
 premises, is a question of fact for the 
 jury, to be decided by the preponderance 
 of the evidence, the same as in any other 
 disputed question of fact. Bitter v. Saat- 
 hoff, 98 111. 266. 
 
 That defendant and his predecessors in 
 title had gathered seaweed from the prem- 
 ises, while not alone evidence of adverse 
 possession, was such evidence, taken in 
 connection with the fact that they claimed 
 to prevent other freeholders of the town 
 from gathering, and that they did so un- 
 der claim of exclusive right as owners, 
 which claim was known to plaintiffs. 
 Trustees v. Kirk, 84 N. Y. 215; s. c, 38 
 Am. Rep. 505. 
 
 To defeat the paramount title by the 
 payment of taxes under color of title, the 
 proof of the payments by the holder of 
 the color of title, or some one interested 
 in the same or on his behalf, must be 
 
 clear and convincing. Such titles should 
 not be overcome by loose and uncertain 
 testimony, or upon mere conjecture or 
 violent presumptions. Hulbut v. Brad- 
 ford, no 111. 397. 
 
 Where one has the right to the use of 
 land, his occupation will be presumed to 
 be in accordance with this right. Howe 
 V. Stevens, 61 Me. 592. 
 
 The mere act of inclosing the land is 
 not evidence of an adverse claim. Rus- 
 sell v. Davis, 38 Conn. 562. Nor the rec- 
 ord of a survey. Oatman v. Fowler, 43 
 Vt.462. 
 
 In an action to determine an adverse 
 claim to vacant or unoccupied real estate, 
 the plaintiff must allege in his complaint, 
 and, if denied, show upon the trial, some 
 title to, or interest in, the land; otherwise 
 he has no standing in court to enable him 
 to recover against a person making an 
 adverse claim to the property. Herrick 
 V. Churchill, 29 N. VV. Repr. (Minn.) 
 129. 
 
 When a witness swears to his posses- 
 sion, with repeated acts of ownership ex- 
 tending over many years, such evidence 
 is allowed to go unchallenged to jury; it 
 is not improper for the judge to assume 
 a legal possession to have then been tes- 
 tified to, and to so present the case in his 
 charge to the jury. Stanton v. Mullis, 92 
 N. Car. 623. 
 
 Where it appeared that the defendant 
 in ejectment had conveyed the land in 
 controversy to his son under whom the 
 plaintiff claimed, and the defendant gave 
 evidence tending to show that his son 
 had shortly afterward returned it to him; 
 and that he had ever since held it in open 
 and notorious adverse possession, held, 
 that it was error to exclude evidence of- 
 fered by the plaintiff to show that at the 
 time of the conveyance to the son the de- 
 fendant was insolvent, and that he made 
 the deed in order to defraud his creditors, 
 and that his debts had never been paid. 
 Hughes V. Irael. 73 Mo. 538. 
 
 1. Weaver w. Wilson, 48 111. 125; Jack- 
 son V. Berner, 48 111. 203. 
 
 Authorities for Adverse Possession. — 
 Washburne's Real Prop. (4th Ed ); Tiede- 
 man's Real Prop. §§ 693, 704; Tyler on 
 Eject.; Wood on Lim. chap. 20; Sedg- 
 wick & Wait on Trial of Title to Land 
 (2d Ed.), chap. 28, 2 Smith's Lead. Cas. 
 (8th Am. Ed.) pp. 706, 727; Angell on 
 Limitations, 
 
 305 
 
AD VER TISEMENTS. 
 
 ADVERTISEMENTS. — Advertisements are " notices published 
 either by handbills or in a newspaper," i and the law relating to 
 them forms a branch — the least satisfactory one — of the subject of 
 Notice. 
 
 It may be well to state generally, first, that advertisements 
 should be sufficiently full and precise in their terms, as to time, 
 persons, place, and description, to identify the subject-matter notice 
 of which is intended to be given ; and, second, that an advertise- 
 ment cut' from a newspaper is not a handbill,** nor is a mere 
 advertising sheet a newspaper, for the purposes of advertisement 
 required by law.' 
 
 When not required by statute, ordinance, rule of court, or other 
 formal regulation, advertisements do v\o\., per se, amount to actual 
 notice of their contents, but are resorted to, and accepted, as the 
 most available, and, under the circumstances, the best, substitute 
 therefor, in cases where actual notice is either a legal or physical 
 impossibility. Hence, in the absence, and independently, of a 
 positive direction to advertise, the general rule of law is : When- 
 ever actual notice is necessary, but is legally or physically impos- 
 sible (as by reason of a want of knowledge or jurisdiction of the 
 parties to be notified, or of their whereabouts) publication of the 
 notice must be made in a newspaper, if any there be, published at, 
 or as near as possible to, the place where the persons to be affected 
 thereby are supposed to be, or were when last heard of. Such 
 advertisement would, in law, generally be construed to have the 
 same effect as actual notice ; of course, if it could be shown that 
 the party to whom it was addressed did, as a matter of fact, see 
 and read the advertisement, or was informed of its contents, the 
 notice would be actual in fact as well as in theory. For the 
 occasions when such advertisements are necessary, the reader is 
 referred to the general subject of Notice, under which head they 
 properly belong. 
 
 Where an advertisement is directed to be inserted in a particu- 
 lar paper, the course pointed out must be pursued ; and all other 
 local requirements must likewise be complied with. If not other- 
 wise expressly provided, the paper is to be one printed in the 
 English language.* 
 
 1. Bouvier's Law Diet. cient. Allen v. Cole, i Stockt. i86. The 
 
 Public Sales, — The statutory directions officer making the sale must, if he en- 
 
 to advertise public judicial sales of land trusts the duty of advertising to others, 
 
 for a certain period of time are only direc- be able to state from his own knowledge 
 
 tory. Ware v. Bradford, 2 Ala. 676. And that the property was advertised. Price 
 
 failure to comply therewith will not in- v. Simpson, 8 Ky. L, Rep. 327. The 
 
 validate the sale. Maddox v. Sullivan, 2 description need only be sufficient to 
 
 Rich. Eq. 4; Howard v. North, ^ Texas, identify the property to be sold. Allen 
 
 290. Though it.will make the sheriff liable v. Cole, i Stockt. 286. What consti- 
 
 to any one injured in consequence there- tutes such a description is a question for 
 
 of. Brooks V. Rooney, 11 Georgia, 423. the jury. Collier v. Vason, 12 Ga. 440. 
 An adjournment of the sale need riot be 2. Clark v. Chambers, i Pittbs. 222. 
 published in the newspapers: public 3. Tyler v. Bowen, i Pittsb. '225. 
 proclamation thereof at the place where 4. Road in Upper Hanover, 44 Pa. St. 
 
 the sale was to have been held is suffi- 277. 
 
 306 
 
AD VICE— AFFECTED— AFFIDA VI TS. 
 
 Moreover, it is generally understood that secular newspapers, if 
 there be any, are "intended ; in fact, this is, in some few instances, 
 positively directed in the enactment. 
 
 When an advertisement is commanded to be inserted in more 
 than one newspaper, publication should not (where there is any 
 alternative) be made in two papers published in the same office, or 
 by the same man or company ; indeed, this is specifically prohib- 
 ited in sections of some of the States. 
 
 "ADVICE. — Advice implies the giving of counsel. 
 AFFECTED. — To produce or eflect a change about something.® 
 AFFIDAVITS. See also APPEAL; ATTACHMENT; COSTS; 
 Equity; Evidence ; Practice ; Service. 
 
 1. Definition. 5. Language. 
 
 2. Who may make. 6. Use. 
 
 3. Who may take. 7. Amendment. 
 
 4. Requisites. 8. Stale Affidavits. 
 
 1. Definition. — An affidavit is a formal^ written* (or printed) 
 voluntary^ ex parte^ statement, sworn (or affirmed) to before an 
 officer authorized to take it, to be used in legal proceedings. 
 
 2. Who may make. — The uses of an affidavit necessitate other 
 rules as to the affiant's testimony than those governing the case 
 of witnesses. All affidavits may be, and those to the merits must 
 
 1. In Norcum». D'(Ench&R,ingling,i7 
 Mo. 99, power was given by the testator 
 to his widow to sell and dispose of his 
 property with the advice and consent of 
 the executor. Held, the refusal of the 
 executor to give his consent did not pre- 
 vent a valid sale; advice meant general 
 advice, and not consent to each act; and 
 therefore a court of equity would on ap- 
 plication authorize the sale. 
 
 S. In Statute. — A judgment entered 
 upon a warrant of attorney given by a 
 beneficed clergyman to secure payment 
 of an annuity need not be registered, un- 
 der 8 G. 2, c. 6; for though it may be en- 
 forced by sequestration, yet the benefice 
 is not affected by the judgment. Cottle 
 V. Warrington, 5 B. & .Ad. 453. But a 
 suit for the specific execution of a con- 
 
 ance of every act required by law is vol- 
 untary, but no affidavit is valid unless 
 obtained by legal means and for a legal 
 purpose. Where affidavits can only be 
 compelled for legal use as evidence, they 
 cannot be compelled merely for informa- 
 tion. Dudley v. McCord, 65 la. 671. In 
 Robb V. McDonald, 29 la. 330, and State 
 V. Seaton, 61 la. 563. it was held, by a 
 divided court, that a justice's decision as to 
 his jurisdiction to require an affidavit was 
 final, and that a party refusing to make 
 an affidavit Was in contempt, except in 
 gross cases of abuse of authority. An 
 affidavit is also voluntary in the sense of 
 not being made under cross-examination. 
 See next note. 
 
 6. The term "deposition" is often used 
 as a generic expression, to comprehend 
 
 tract for the sale of land is a suit concern- all written evidence verified by oath, affi- 
 
 ing real estate whereby the same may be 
 affected, under the Missouri code. Etis- 
 worth V. Holly etal., 33 Mo. 370. 
 
 3. For the formal requisites of an affi- 
 davit, see below, 4. A bare oath (or 
 affirmation) need not contain these for- 
 mal requisites, but as every affidavit in- 
 cludes the oath (or affirmation) a defec- 
 tive affidavit may be valid as an oath 
 (or affirmation), to^show what facts were 
 testified to. Burns v. Doyle, 28 Wis. 
 460. 
 
 4. There is no such thing as an unwrit- 
 ten affidavit. TOindley v. Bradway, 77 
 N. Car. 333. 
 
 6. The law presumes that the perform- 
 
 davits included, but there is a clear dis- 
 tinction between the two, in that in tak- 
 ing depositions the opposite party can 
 always cross-examine, while affidavits are 
 ex parte. "A deposition is evidence 
 given under interrogatories, oral or writ- 
 ten, and usually written down by an offi- 
 cial person ; while an affidavit is the 
 mere voluntary act of the party making 
 the oath, and may be, and generally is, 
 taken \yithout the cognizance of the one 
 against whom it is to be used." Stimpson 
 V. Brooks, 3 Blatch. (U. S.) 456. By the 
 Kansas Code notice to the adverse party 
 is the distinctive criterion. Atchison v. 
 Bartholow, 4 Kan. 124. 
 
 307 
 
"Who may make. 
 
 AFFIDAVITS. 
 
 Agent, 
 
 be, made by parties* to the cause in which the affidavits are used. 
 
 A person convicted of an infamous crime,* a very young child, 
 or a person governed by insane delusions^ as to the matter in 
 hand, is incompetent to make an affidavit. 
 
 Agent. — An agent* may sometimes make an affidavit for his 
 principal. So, too, a third person who is not an agent.* 
 
 4. The affidavits necessary at various 
 stages of legal procedure, in support 
 of motions, petitions, appfeals, attach- 
 ments, etc., are often made by the party's 
 attorney or solicitor. In the U. S. courts, 
 bills in equity are usually verified by oath, 
 and this may be done by an agent or so- 
 licitor, if he has signed the bill. Such 
 agent should make oath (except, perhaps, 
 in the case of a corporation plaintiff), to 
 the reason for his doing so instead of his 
 principal. Blake Crusher Co. v. Ward, 
 
 1 Am. Law Times R. 423. 
 A proctor in admiralty can make an 
 
 affidavit for the party. The Harriet 01c. 
 Adm. 222. 
 
 When counsel, who is not solicitor, 
 makes an affidavit, he must show why it 
 is not made by the party or his solicitor. 
 People V. Spaulding, 2 Paige (N. Y.), 326. 
 
 In Michigan the agent or attorney need 
 not swear that he is such agent or attor- 
 ney, 'if the fact be stated in the affidavit 
 by way of recital. Wetherwax v. Paine, 
 
 2 Mich. 555. In Arkansas the affidavit 
 need not state that the affiant made it for 
 the plaintiff, as the court will not presume 
 that he was unauthorized. Mandel v. 
 Peet, 18 Ark. 236. The contrary was 
 held in Miller v. R. W. Co., 58 Wis. 310; 
 Wiley V. Aultman, 53 Wis. 560; Wallace 
 V. Byrne, 17 La. Ann. 8; and Willis v. 
 Lyman, 22 Tex. 268. In the latter case 
 the petition was signed by " Fly & Fly, 
 attorneys for plaintiffs," and the affidavit 
 made by B. F. Fly, without stating that 
 he was their attorney. It was said, " The 
 court cannot know that the person who 
 makes the affida.vit is one of the persons 
 who signed the petition, nor will the 
 court look to the records in the original 
 suit to find information which ought to 
 be contained in the affidavit itself." In 
 Missouri, where an affidavit was sworn 
 to by the same person who had signed 
 the petition as attorney for plaintiff, it 
 was held good. Gilkeson v. Knight, 71 
 Mo. 403. When a party's attorney-at- 
 law makes an affidavit, he need not state 
 that he is attorney in fact. Austin v. 
 Latham, 19 La. 88. But the affidavit of 
 an attorney's clerk is invalid, without 
 some good reason. Jackson v. Wood- 
 worth, 3 Paige (N. Y.), 136; Chase v. Ed- 
 wards, 2 Wend. (N. Y.) 283. 
 
 5. When the party is disabled by ill- 
 ness, the affidavit of a third person will 
 
 1. "Questions which do not involve 
 the matter in controversy, but matter 
 which is auxiliary to the trial, which facil- 
 itate the preparation for it, often depend 
 on the oath of the party. An affidavit to 
 the materiality of a witness, for the pur- 
 pose of obtaining a continuance, or a. 
 commission to take his deposition, or an 
 affidavit of his inability to attend, is usu- 
 ally made by the party and received with- 
 out objection. So affidavits in support 
 of a motion for new trial are often re- 
 ceived.'' Marshall, C. J., in Tayloe v. 
 Biggs, I Pet. 591. In that case a party's 
 affidavit that a document had been lost 
 or destroyed was received to make sec- 
 ondary evidence of the contents admissi- 
 ble. So a party's affidavit was received 
 in support of a motion for judgment as 
 in case of nonsuit. Ames v. Merriman, 
 g Wend. (N. Y.) 498. An affidavit may 
 be made by a parly in interest, even if 
 not a party to the record. Fraley v. 
 Steinmetz, 22 Pa. Si. 437; Sleeper v. 
 Dougherty, 2 Whart. (Pa.) 177; Hunter 
 V. Reilly, 36 Pa. St. 509; Miller v. Hook- 
 er. 2 How. Pr. (N. Y.) 124. 
 
 Corporations. — The chief officer of a 
 corporation should make its affidavits. 
 Ex parte Sergeant, 17 Vt. 425. 
 
 The affidavit of a wife, prosecuting or 
 defending as a feme sole in a suit for di- 
 vorce, will be received. Kirby v. Kirby, 
 I Paige Ch. (N. Y.) 261. So that of a ne- 
 gro, in former times, was received in 
 -support of a habeas corpus. Norris v. New- 
 ton, 5 McL. 92. An affidavit cannot be 
 attacked by a counter-affidavit that the 
 affiant is an atheist. He must have an 
 opportunity for explanation or reply. 
 Leonard -u. Manard, i Hall (N. Y.), 200. 
 
 2. A convicted felon does not become 
 competent to make an affidavit by serving 
 out his term. People v. Robertson, 26 
 How. Pr. (N. Y.) go. It makes no mat- 
 ter that the affidavit was made before 
 conviction. The incompetency relates 
 back to the time of the indictment. Web- 
 ster w. Mann, 56 Tex. iig. 
 
 3. The affidavit of a person in a luna- 
 tic asylum must state in the jurat the cir- 
 cumstances under which, and the place 
 where, it was made, so that the' affiant's 
 mental condition can be inquired into be- 
 fore the affidavit is received. Spittle v. 
 Walton, L. R. II Eq. 420; 40 L. J. Ch. 
 
 j68. 
 
 308 
 
'Who may take. 
 
 AFFIDA VI TS. 
 
 Who may take. 
 
 3. Who may take. — An affidavit must be sworn to before a com- 
 petent* person, i.e., before a particular officer, or one of a par- 
 ticular class, where a statute or rule of court requires it ; other- 
 wise, before any one* authorized to administer an oath. 
 
 In most States,^ a party cannot make an affidavit before his 
 
 1)6 received. James v. Young, i. Dall. 
 (Pa.) 248. 
 
 In Pennsylvania an affidavit of defence 
 made by counsel, or any one olher than 
 the defendant himself, must state that it 
 was made for him, and also show suflS- 
 cient cause for his not making it himself. 
 Marshall v. Witte, i Phila. 117; Gross v. 
 Painter, I Weekly Notes of Cases (Phila.),, 
 154; City V. Devine. i Weekly Notes of 
 Cases (Phila.), 358; Russell v. Foran, i 
 Weekly Notes of Cases (Phil^.), 470. 
 
 The affidavits of two attorneys, each 
 swearing to different facts, will be re- 
 ceived if, taken together, they cover all 
 the facts required to be sworn to. Lewis 
 V. Stewart, 62 Tex. 352. 
 
 An affidavit by an attorney or agent, 
 stating the facts positively, need not state 
 Jiis means of knowledge. Anderson v. 
 Wehe. 58 Wis. 615. 
 
 In lovva the professional statement of 
 counsel is equivalent to an affidavit. Rice 
 ■u. Griffith, 9 Iowa, 539. 
 
 1. An affidavit made before an officer 
 incompetent to take it will be disregard- 
 ed. Haight V. Proprietors, 4 Wash. C. 
 C. 601. 606. In Reginaw. Bloxham, 6 A. 
 & E. N. S. 528, thf words "before me" 
 had been omitted from the jurat, so that 
 the affidavit did not show that it had been 
 sworn to before a competent officer. 
 This was a fatal defect. See also Wood 
 V. Jefiferson Co. Bank, g Cow. (N. Y.) 
 194; Dunn z/. Ketchum, 38 Cal.93; Love 
 V. McAlister, 42 Ark. 183. 
 
 Affidavits for use in the U. S. courts 
 must be sworn to before a commissioner, 
 or, in bankruptcy, a register. Affidavits 
 taken before notaries are valid only in 
 equity, or in proof of debts in bankrupt- 
 cy, or as depositions de bene esse. In re 
 McKibben, X2 Bank. Reg. 97; 2 Cent. , 
 L. J 277. 
 
 An affidavit in a proceeding in a fed- 
 eral court, taken before a State master in 
 chancery, and not by a person empow- 
 ered by act of Congress to administer 
 oaths, will be disregarded. Haight v. 
 Proprietors, 4 Wash. C. C.601, 606. But 
 a State officer may be made competent 
 by appointment of a federal court, under 
 authority of an act of Congress. Gray 
 1/. Tunstall, Hemp. 558. Or by the reg- 
 ulation of the head of a federal depart- 
 ment. U. S. V. Bailey, 9 Pet. (U. S.) 
 238. Or by the custom of a department. 
 
 I C. of L:— 21 
 
 309 
 
 U. S. V. Winchester, 2 McL. (U. S.) 
 
 135- 
 
 Where a statute authorizes certain offi- 
 cers out of the State to take affidavits, an 
 affidavit made before one not named in 
 the statute is invalid. People v. Tioga^ 
 7 Wend. (N. Y.) 516; Stanton v.. Ellis, 
 16 Barb. (N. Y.) 319; Benedict v. Hall, 
 76 N. Car. 113; Love v. McAlister, 42: 
 Ark. 183. 
 
 Where a justice of the peace is author- 
 ized to take affidavits only in certain, 
 cases, he is incompetent outside the lim- 
 its of his authority. Chrislman v. Floyd, 
 9 Wend. (N. Y.) 340 In Scotland, how- 
 ever, a justice can take affidavits in any 
 matter. It is a ministerial, not judicial, 
 act. Kerr v. Marquis of Ailsa, 1 Macq. 
 736. 
 
 Where a court has power to appoint, 
 persons to take affidavits, it may' ap 
 point classes as well as individuals. Gray- 
 s'. Tunstall, Hemp. (U. S.) 558. An offi- 
 cer of the court, as such, has no power tO' 
 take an affidavit, except in its presence 
 and by its direction. Roberts v. Railway 
 Co., I Brew. (Pa.) 538; but. under those 
 circumstances, it may be done by one 
 who has no general authority. U.S. v. 
 Nihols, 4 McL. (U. S.) 23. 
 
 If an affidavit must be taken before a 
 special officer of the court, {e.g., a com- 
 missioner of the court of chancery), it will 
 be worthless if the officer signs the jurat 
 as acting in another capacity. Frost v. 
 Hayward, 10 M. & W. 673. 
 
 The commission of a public commis- 
 sioner need not be proved to validate an 
 affidavit taken by him. Rex v. Howard, 
 I Moo. & Rob. 187. 
 
 The affidavit required by the Illinois- 
 statute, on an information, may be taken 
 by a justice as well as a county judge. 
 Carrow v. People, 113 III. 550. 
 
 2. Anotaryof another Slate. Tucker z/. 
 Ladd, 4 Cow. (N.Y.) 47. When authenti- 
 cated in substantial compliance with the' 
 statute. Bank v. Cowen, 3 Hill (N. Y.), 
 461; but contra, Benedict v Hall, 76 N. 
 Car. 113. A commissioner for one State 
 residing in another State, even in the 
 case of an application for a receiver. 
 Young V. Rollins, 78 N. Car. 485. 
 
 3. In England it has been held that a 
 court will discharge, with costs, a rule 
 obtained on an affidavit before the party's 
 attorney. Hopkinson v. Buckley, 8 
 
~Who may take. 
 
 AFFIDA VI TS. 
 
 Bequisites. 
 
 own attorney, even if such attorney be authorized to take them ex 
 .officio; but this rule does not obtain everywhere.* 
 
 Notaries have no power by the common law to take affidavits 
 lex offitio, but it is universally granted by statute.* 
 
 4. Requisites. — A false affidavit makes the afifiant liable to a 
 prosecution for perjury; and therefore no affidavit is valid unless 
 it be such as to support an indictment, if false, i.e., unless it is cer- 
 tain both as to form and substance. 
 
 A. The formal requisites are : (a) Title, (b) Venue, (c) Signature, 
 (d) Jurat, (e) Authentication. 
 
 (a) Title. — An affidavit must generally be entitled in the suit in 
 which it is used.^ 
 
 There are some cases, however, in which an affidavit cannot be 
 legally entitled, e.g., an affidavit purporting to be made in a suit 
 when no such suit is pending.* 
 
 Taunt. 74; Tidd's Prac. *494. So in 
 the United States, the rule is that an affi- 
 davit cannot be taken before an attorney 
 in the cause. Taylor v. Hatch, 12 Johns. 
 (N. Y.) 340; Toorle v. Smith, 34 Kan. 27. 
 The other party should at once move to 
 set the proceedings aside for irregularity, 
 as it is too late to do so .after judgment. 
 (Jilmore v. Hempstead, 4 How. (N. Y.) 
 152. The attorney must be such when 
 he took the affidavit. Vary v. Godfrey, 
 
 6 Cow. (N. Y.) 587. It is insufficient to 
 show merely that he is such when the ob- 
 jection is taken. Kidde v. Davis, 5 
 Dowling's Pr. Cas. 568. This may, how- 
 ever, be shown by general statements of 
 the party himself; Haddock v. Williams, 
 
 7 Dowling's Pr. Cas. 327. Or by the de- 
 scription in the declaration. Prynne u. 
 Roe, 8 Dowling's Pr. Cas. 340. 
 
 The rule does not apply to proceedings 
 to admeasure dower. Griffin -o. Borst, 4 
 Wend. (N. Y.) 195. Nor to an affidavit 
 to hold to bail. Adams u. Mills, 3 How. 
 (N. Y.) 219. 
 
 Where a party's attorney and counsel 
 are different persons, an affidavit may 
 be made before the counsel. Willard v. 
 Judd, 15 Johns. (N. Y.) 531. It may be 
 made before the attorney's partner if he 
 be not also attorney of record. Hallen 
 back V. Whitaker, 17 Johns. (N. Y.) 2 ; 
 Duke of Northumberland v. Todd, L. R 
 7 Ch. Div. 777; Turner v. Bates, L. R. 
 ID Q. B. 292. Where a solicitor was a 
 party, but his firm not solicitors of 
 record, an affidavit taken by a. clerk of 
 the firm was allowed. Foster v. Harvey, 
 4 Ue G. J. & S. 59- 
 
 A party's attorney is incompetent even 
 to take an affidavit of service of notice by 
 one not the party himself. Hammond v. 
 Freeman, 9 Ark. 62. 
 
 1. The rule as to a party's attorney is 
 
 not held to in California (Reavis v. Cow- 
 ell 56 Cal. 588), Minnesota (Young v. 
 Young, 18 Minn, go), or Wisconsin (Daws 
 V. Glasgow, I Burn. 8; s.c, i Pin. 171. 
 
 2. Proffat on Notaries, § 20. 
 
 3. Baxter i/. Seaman, I How. (N.Y.) 51; 
 In Humphrey v. Caude, 2 Cow. (N. Y.) 
 
 509, it was held that an affidavit wrongly 
 entitled was invalid though the cause 
 was correctly set out in the body of the 
 instrument. Usually, however, the ab- 
 sence of title or a mistake in the title 
 will not invalidate the affidavit, if it can 
 be clearly identified as having been filed 
 in the case. Anonymous, 4 Hill (N. Y.), 
 597; Harris v. Lester, 80 111. 307. 
 
 Minor defects in the title, which would 
 not prevent an indictment for perjury, do 
 not vitiate the affidavit; e.g., the omission 
 of the Christian name of one of several 
 parties. Maury w. Van Arnum, i Hill 
 (N. Y.), 370. 
 
 The title need not have been written 
 upon the affidavit when it was made, 
 if it be shown that it was made for the 
 purposes of the suit in which it was filed, 
 and for no other purpose. This may be 
 shown by the affidavit of counsel. Shook 
 V. Rankin, 2 Law and Eq. R. 236. 
 
 4. In such a case the affidavit is treated 
 as a nullity. The affidavit accompany- 
 ing a writ of replevin is an instance of 
 this. Milliken v. Seelye, 3 Den. (N. Y.) 
 54; Stacy V. Farnham, 2 How. (N. Y.)26." 
 The reason is that there being no such 
 cause in existence at the time, l,he affi- 
 ant could not be convicted of perjury, 
 if the affidavit were false. The title is 
 not surplusage, as it would, in many 
 cases, render the body of the affidavit 
 meaningless. Blake Crusher Co. v. 
 Ward, I Am. L. Times R. 423. On ap 
 peal from one court to another, the affi- 
 davit and other proceedings must be en- 
 
 310 
 
Sequisites, 
 
 AFFIDA VI TS. 
 
 Venue — Signature— Jurat. 
 
 (b) Venue. — The venue, being prima-facie evidence of the county 
 in which the affidavit was made, is an essential part of the affi- 
 davit.'^ 
 
 (c) Signature. — Where the affiant's signature is required by 
 statute or rule of court, the affidavit is a nullity without it ;* 
 otherwise not,^ as the swearing, not the signing, will support an 
 Ladictment for perjury. 
 
 (d) Jurat. — As an affidavit must appear on its face to have been 
 taken in compliance with all legal requisites'* and before the proper 
 officer,^ x!i\e. jurat must be signed by him.® 
 
 This rule has sometimes been relaxed on clear proof that the 
 affidavit was in fact sworn to,^ and all other legal requirements 
 complied with.'' 
 
 titled in the appeal cause, but where the 
 court is the same, as on appeal from a 
 Vice-Chancellor to a Chancellor, there is 
 no change of title. Hawley v. Donnelly, 
 8 Paige (N. Y.), 415. 
 
 1. Without a venue, an affidavit is a 
 ' nullity, even though sworn to before an 
 
 officer whose residence is mentioned in 
 the jurat. Cook u. Staats, 18 Barb. 
 (N. Y.) 407; Lane v. Morse, 6 How. 
 (N. Y.) 394; Thompson v. Burhans, 61 
 N. Y. 52; People v. De Camp, 5 N. Y. 
 Weekly Dig. 462. The venue should 
 show that it was taken within the officer's 
 jurisdiction. Ladow v. Groom, 1 Den. 
 (N. Y ) 429. When the venue is stated, 
 the officer need not state his place of 
 residence or official district. It will be 
 presumed that he resided and acted 
 within the venue Or within his proper 
 official district. Parker v. Baker, 8 Paige 
 (N. Y.), 428; Mosher v. Heydrick, 30 
 How. (N. Y.) 161; In re Sheepshead, etc., 
 R. Co., 5 N. Y. Weekly Dig. 488. 
 
 It has been held that while a venue is 
 proper and desirable, its absence is not 
 fatal, since, in case of a prosecution for 
 perjury, evidence of the place and the 
 officer's authority might be adduced dehors 
 the jurat. Reavis v. Cowell, 56 Cal. 558; 
 Young V. Young, 18 Minn, go; Barnard 
 V. Darling, i Barb. Ch. (N. Y.) 218; Par- 
 ker V. Baker, 8 Paige (N. Y.), 428; Prof- 
 fat on Notaries, § 52. The omission of 
 the letters "ss."from the venue is imma- 
 terial. Smith V. Richardson, i Utah, 194. 
 
 2. Hargardine v. Van Horn, 72 Mo. 
 370; Hathaway v. Scott, 11 Paige (N. Y.), 
 173; Nave V. Ritter, 41 Ind. 301. 
 
 Where a statute gives a form for an 
 affidavit with a blank space for the signa- 
 ture, it will apparently be required. Co- 
 hen V Mance, 28 Ga. 27. 
 
 3. Jackson w. Vogel. 3 Johns. (N. Y.) 
 540, HafI V. Spicer, 3 Paige (N. Y.), 190; 
 Melins v. Shaffer, 3 Denio (N. V.), 60; 
 
 Hitsman v. Garrard, i Harr. (N. J.) 124; 
 Shelton v. Berry, 19 Tex. 154; Watts v. 
 Womack, 44 Ala. 605; Noble v. U. S., 
 Dev. (Ct. CI.) 83; Alford v. McCarmac, 
 go N. Car. 151; Gill v. Ward,.23 Ark. 16; 
 Redus V. Wofford, 4 Sm. & M. (Miss.> 
 579; Bates V. Robinson, 8 Iowa, 318. 
 
 4. A certificate that the affiant was 
 duly sworn creates a prima-facie pre- 
 sumption that he was so sworn as to 
 make the oath binding on his conscience. 
 Fryatt v. Lindo, 3 Edw. (N. Y.) 239. 
 Where several persons take the oath, the 
 officer need not certify that they were 
 severally sworn. Randall v. Baker, 30 
 N. H. 335. 
 
 5. The jurat must contain the words 
 ■ ' before me" or their equivalent. Regina 
 V. Bloxham, 6Q. B. 528; Smart v. Howe, 
 3 Mich. 590. 
 
 6. State V. Green, 15 N. J. Law, 88; 
 Ladow V. Groom, i Denio (N. Y.), 429; 
 Davis V. Rich, 2 How. (N. Y.) 86; Morris 
 V. State, 2 Tex. App. 502. A paper 
 drawn and filed as an affidavit cannot be 
 treated as such if not signed by the 
 proper officer. Bank v. Hinchcliffe, 4 
 Ark. 444; Cantwell v. State, 27 Ind. 505; 
 McDermaid v. Russell, 41 111. 490. An 
 omission of the officer's title of office is 
 immaterial. People v. Van Rensselaer, 
 6 Wend. (N. Y.) 543; Hunter v. Leconte, 
 6 Cow. (N. Y.) 728. Where an oath not 
 required to be in writing is written, the 
 omission of the officer's attestation does 
 not invalidate it. Pottsville v. Curry, 
 32 Pa. St. 443. 
 
 7. Kruse v. Wilson, 79 111. 233; Cook 
 V. Jenkins, 30 la. 452. In the former 
 case it was said: "If an oath was ad- 
 ministered, and by the proper officer, as 
 it assuredly was, the law was satisfied, 
 and the mere omission of the clerk to 
 put his name to an act, which was done 
 through him as the instrument, should 
 not prejudice an innocent party who has 
 
 311 
 
Bequisites. 
 
 A f FID A VI TS. 
 
 AathenticatioiL, 
 
 (e) Authentication. — In most States the jurat must be authen- 
 ticated by the officer's seal.* 
 
 B. Affidavits must be certain in substance, i.e., something defi- 
 
 nite must be sworn to.'-' 
 
 done all he was required to do. The 
 clerk's omission to write his name, where 
 it should have been written, was not the 
 fault or neglect of the affiant. He signed 
 and swore to the affidavit." 
 
 1. Tunis &. Wi throw, 10 Iowa 305; Chase 
 V. Street. 10 Iowa 593. It has been held 
 in Illinois that a notary's 7'«raA signed 
 but not sealed, is valid within the county 
 of his residence. Stout v. .-lattery, 12 
 111. 162. An affidavit sworn to before a 
 court clerk, for use only in that court, 
 does not need the court's seal. Mount- 
 joy V. State, 7S Ind. 172. In Everson v. 
 Selby, 32 Ind. 344, an authentication by 
 the clerk of the Supreme Court of New 
 York, an affidavit having been taken by 
 a judge, was held defective because it did 
 not certify that the court was a court of 
 record. So Coward v. DilUnger, 56 Md. 
 5g. An affidavit made before a commis- 
 sioner of one State, resident in another 
 State, is sufficiently authenticated by his 
 signature and seal. Young ii. Rollins, 
 85 N. Car. 4S5. 
 
 2, The test to determine the sufficiency 
 of an affidavit is the possibility of charg- 
 ing perjury on its falsity. An affidavit 
 which does not comply with the statute 
 is bad, whether it follows literally the 
 words of the statute or not. Thus, where 
 the law authorized the issue of an attach- 
 ment upon afiidavit " that the defendant 
 has assigned, disposed of, or concealed, 
 or is about to assign, dispose of, or con- 
 ceal, any of his property with intent to 
 .defraud his creditors," and the affidavit 
 was in the precise words of the law, it 
 was considered bad. Miller v. Munson, 
 34 Wis. 579! Drake on Attachment, § 107 
 a. The Texas revised statutes require 
 that the affidavit on an attachment shall 
 state that the attachment is not sued out 
 for the purpose of injuring or harassing 
 the defendant. An affidavit stated, 
 "This attachment is not sued out for the 
 purpose of mjuring and harassing the said 
 delendant, " and a motion to quash for 
 non-compliance with the statute was sus- 
 tained. Moody V. Levy, 58 Tex. 532. In 
 Blum V. Davis, 56 Tex. 426, the rule was 
 followed that where the disjunctive or is 
 used ("that the defendants were about to 
 convert their property or a part thereof") 
 not to connect two distinct facts of differ- 
 ent natures, but to characterize and in- 
 clude two or more phases of the same 
 fact, attended with the same results, it 
 was proper for the afiBdavit to pursue the 
 
 language of the statute, notwithstanding 
 the disjunctiveness of the sentence. This 
 was followed in Irvin v. Howard, 37 Ga. 
 23. See Drake on Attachment, § 102. An 
 affidavit must be consistent in itself. In 
 Dunnenbaum v. Schram, 59 Tex. 281, the 
 affidavit stated that the defendants "had 
 disposed of their property, etc.," and 
 that they "were about to dispose of" it. 
 West, A. J., said: "The affidavit in this 
 case states that two distinct, separate, 
 and inconsistent facts exist. The exist- 
 ence at the same time of both facis is 
 sworn to. The statute requires in every 
 case a direct, positive assertion, under 
 oath, of the existence of the specific 
 ground or fact on account of the existence 
 of which the writ of attachment is de-, 
 manded. There must be no ambiguity 
 or uncertainty contained in the affidavit 
 itself on the subject," and the affidavit 
 was held bad. Where, however, the 
 statute treats the disposing of the prop- 
 erty and the being about to dispose of it 
 as one entire cause for the attachment, 
 an affidavit stating both is good. Klenk- 
 V. Schvvalm, ig Wis. iii; Parsons v. 
 Stockbrldge, 42 Ind. 121. 
 
 In Pearce v. Hawkins, 62 Tex. 435, 
 an affidavit for attachment alleging "that 
 defendants aforesaid have secreted their 
 property for the purpose of defrauding 
 their creditors, and that they (defend- 
 ants) have disposed of their property 
 with intent to defraud their creditors," 
 was held defective, because it charged 
 two inconsistent grounds for attachment. 
 
 In Hopkins v. Nichols. 22 Tex. 206; 
 Garner v. Burleson, 26 Tex. 348; Cul- 
 bertson v. Cabeen, 29 Tex. 247, and 
 Carpenter v. Pridgen, 40 Tex. 32i,it has 
 been held that an affidavit for a writ of 
 attachment, in which more than one of 
 the' distinct statutory grounds of attach- 
 ment was embraced, and set out in the 
 alternative, was not sufficient. 
 
 If two separate grounds can rationally 
 coexist, an affidavit stating both is good. 
 Kennan v. Evans, 36 Ga. 90. 
 
 An affidavit must comply with the 
 statute requiring it. A statute allowing 
 service of a summons by publication 
 when the defendant cannot "after due 
 diligence be found within the State," is 
 not complied with by an affidavit of the 
 defendant's non-residence. Carleton v. 
 Carleton, 85 N. Y. 313. 
 
 An averment in an affidavit for an at- 
 tachment, that " the defendant is indebt- 
 
 313 
 
Sequisites. 
 
 AFFIDA VITS. 
 
 Bequisites 
 
 The facts stated in an affidavit must not vary from those stated 
 
 ed to the plaintiff in a sum stated," and 
 that the latter "is justly entitled to re- 
 cover said sum," is not acompliance with 
 the requirement of the Code of Civil 
 Procedure (§636) that plaintiff must show 
 by affidavit that he "is entitled to re- 
 cover a sum stated therein, over and 
 above all counter-claims known to him;" 
 and when the requirement is only met by 
 the averments stated, the affidavit is in- 
 GufBcient to give the judge jurisdiction to 
 grant the warrant. Ruppert 11. Haug, 87 
 N. Y. 141. 
 
 An affidavit for the possession of per- 
 sonal property which alleges that the 
 property is wrongfully detained, instead 
 of "unlawfully," as required by the 
 statute, and does not charge that the de- 
 tention is by the defendant, seems to be 
 bad. Louisville, etc., R. Co. v. Payne, 
 103 Ind. 183. 
 
 An affidavit that "this appeal is in 
 good faith" is a substantial compliance 
 with the statute requiring an affidavit 
 " that the appeal is made in good faith." 
 Filer, etc., Co. v. Sohns, 63 Wis. 118. 
 
 Where the affidavit, made to entitle the 
 holder of a tax certificate of purchase to 
 a deed, shows that the property was 
 " taxed or specially assessed in the names 
 of Robert Hervey and Robert Henry," 
 and the allegation of service is that " he 
 served said notice on said Robert Hervey 
 and Robert Henry, by handing the same 
 to and leaving the same with Robert 
 Hervey personally," it fails to show a 
 sufficient service as to Robert Henry, 
 and will not authorize the making of a 
 tax deed, and, if made, it may be set 
 aside as a cloud on the title, upon pay- 
 ment of the amount paid at the tax sale 
 and for subsequent taxes, with six per 
 cent interest. Gage v. Hervey, iii 111. 
 305. " The constitution requires the ser- 
 vice of notice of a tax sale and when the 
 time of redemption will expire, tipon the 
 occupant of the land, to be a personal ser- 
 vice, and the statute requires the affidavit 
 of service to state particularly the facts 
 relied on as a compliance with the consti- 
 tution. A failure to state the mode of 
 service, and the facts relied on as show- 
 ing a service, is a fatal defect, and ren- 
 ders a tax deed made under it invalid." 
 Davis V. Gassnell, 113 111. 121; Price v. 
 England, log 111. 395. 
 
 An affidavit must state specific facts. 
 In an action of covenant on an agree- 
 ment under seal, an affidavit of defence 
 making; general allegations of undue in- 
 fluence inprocuring the agreement is in- 
 sufficient. The acts resulting in undue 
 
 influence should be set out. Mathews 
 V. Sharp, 99 Pa. St. 560. 
 
 An affidavit for an attachment must 
 state the amount of the defendant's 
 indebtedness to the plaintiff; and if the 
 cause of action be of such a character 
 that the plaintiff . cannot know the 
 amount, no attachment founded upon it 
 can be lawfully executed. Hence, an 
 affidavit stating that the defendant is in- 
 debted to the plaintiff in an amount 
 specified "as near as this plaintiff is able 
 to determine" is insufficient. Hawes v. 
 Clement, 64 Wis. 152. 
 
 An affidavit in attachment stating that 
 "the claim in this action is for money 
 due on three promissory notes, copies of 
 which are filed with the complaint, exe- 
 cuted by the defendants to the plaintiff, 
 that the claim is just, and that he believes 
 the plaintiff ought to recover," etc., suf- 
 ficiently describes the nature of the plain- 
 tiff's claim. Fremont Co. u. Fulton, 103 
 Ind. 393. 
 
 An affidavit for the taxation of costs 
 should itemize them with exactness, espe- 
 cially if those to be charged with them 
 are not interested alike. Genesee Bank 
 V. Ottawa Circuit Judge, 54 Mich. 305. An 
 affidavit by the plaintiffs' attorney, stat- 
 ing, generally that ' ' plaintiffs cannot safe- 
 ly go to trial, for want of material testi- 
 mony," giving neither the name nor the 
 residence of any witness, and failing to 
 show the substance of the testimony 
 sought, or any diligence used, or excuse 
 for want of diligence, is wholly inade- 
 quate to obtain a continuance. Ilett v. 
 Collins, 102 III. 402. See also Moon v. 
 Heifer, 25 Kan. 139; Kew Valley Bank 
 V. Chester, 55 Cal. 49. 
 
 An affidavit for publication in a chan- 
 cery cause which merely states that the 
 affiant cannot find the defendant in the 
 State by reason of his absence from the 
 State, or of his concealment within it, is 
 not sufficient. The affidavit should state 
 the facts of inquiry and investigation, so 
 that the court can see that the conclusion 
 that the party cannot be found for the 
 reason stated is a reasonable one upon 
 such facts. Thompson v. Shiawassee 
 Circuit Judge, 54 Mich. 237. 
 
 An affidavit in support of an applica- 
 tion for a special legal process, e.g., at- 
 tachment, must state facts sufficient to 
 warrant the court in granting the applica- 
 tion. Consequently, an affidavit which 
 states that the debtor did an act or acts 
 which of themselves are not necessarily 
 fraudulent, with an intent to defraud his 
 creditors, without more is not sufficient. 
 
 313 
 
Xan^age— TTse. 
 
 AFFIDA VI TS. 
 
 Amendment. 
 
 in the petition.* An affidavit, however, will not be technically- 
 construed, but will be held sufficient if in good faith it seemed 
 intended to meet the plaintiff's case.** 
 
 Affidavits must not contain scandalous matter,' and must be 
 free from interlineations and erasures.* 
 
 5. Language. — The fact that the affidavit has been translated,' 
 or is in a language not understood by the affiant,® is immaterial, 
 if it appears to have been properly made. 
 
 6. tfse. — In practice, affidavits are often required at the incep- 
 tion of proceedings, where a stringent remedy {e.g., attachment) 
 is sought ; at intermediate stages in a suit, when it is sought to 
 modify the status of the litigation by an exercise of the court's 
 discretionary power ; on ail motions to open defaults or grant 
 delay in proceedings, and other applications by, the defendant to 
 the favor of the court ; to show ^ prima-facie defence to a certain 
 class of demands, thereby entitling the defendant to a trial of the 
 cause, and for other ends.' 
 
 They are not, in general, competent as evidence* upon a 
 material question at issue, except against the affiant, as evidence 
 of an admission by him. 
 
 7. Amendment. — All minor defects in affidavits may be amend- 
 ed ;' and even some more fundamental ones.^" 
 
 Delaplain v. Armstrong, 2i W. Va. 211. 
 It must show that the plaintiff's claim is 
 just. This may be by a direct statement 
 to that effect, or by a showing of facts. 
 Wilkins v. Tourtellot, 28 Kan. 825. 
 
 An affidavit for attachment before a 
 justice of the peace containing as a state- 
 ment of the plaintiff's cause of action 
 "that the said claim in said action is for 
 damages in not delivering goods pur- 
 chased," does not show that the case is 
 for a debt or demand arising upon con- 
 tract, judgment, or decree, and does not 
 authorize the issuance of an attachment 
 against a foreign corporation or a non- 
 resident of the State. Rouss v. Wright, 
 14 Neb. 457. 
 
 All matters stated on information and 
 belief must be distinctly shown to be so 
 stated. Fleming v. Wells, 65 Cal. 336. 
 
 1. Evans v. Tucker. 59 Tex. 249. 
 
 2. Haight v. Arnold, 48 Mich. 512. 
 
 3. Opdyke v. Marble, 18 Abb. (N. Y.) 
 375; Lewis V. Woolrych, 3 Dowl. Pr. 
 Cas. 692; Cassen v. Bond, 2 Younge & 
 J. 531; Balls I-. Smythe, 2 M. & G. 350. 
 
 4. Didieri/. Warner, 2Edm. (N. Y.)4i; 
 Williams v. Clough, i A. & E. 376; Cham- 
 bers V. Barnard, 9 Dowl. Pr. Cas. 557. 
 
 5. An affidavit in German, sworn be- 
 fore a German court, is valid if trans- 
 lated, and the translation verified. In re 
 Eady. 6 Dowling Pr. Cas. 615. 
 
 6. The oath may be administered in a 
 foreign language, if it is translated by an 
 
 interpreter to the affiant. In re Eady, 
 6 Dowling 'Pr. Cas. 615. Where the 
 jurat certified "that the affidavit was 
 interpreted by F. C, professor of lan- 
 guages (he having first sworn that he 
 understood the French and English lan- 
 guages), to the deponent, who was after- 
 wards sworn to the truth thereof," it was 
 held sufficient, though it did not appear 
 that the affiant understood the language 
 into which the affidavit was interpreted, 
 nor that the interpreter was sworn truly 
 to interpret. Bosc v. SoUiers, 6 Dow. & 
 Ry. 514; 4 B. & C. 358; Marzetti v. 
 Du Jouffroy, i Dowl. Pr. Cas. 41. 
 
 7. E.g., the affidavit, accompanying an 
 appeal or writ of error, that it is not 
 intended for delay. 
 
 8. Richardson v. Golder, 3 Wash. C. C. 
 109; Patterson v. Maryland Ins. Co., 3 
 Har. & J. (Md.) 71; Layton v. Cooper, 
 2 N. J. Law, 47; Armstrong v. Boylan, 
 4 N. J. Law, 84; Lewis v. Bacon, 3 Hen. 
 &-M. (Va.) 89. 
 
 An affidavit made ante litem motam 
 may be received as hearsay to prove 
 pedigree. Hurst v. Jones, i Wall, Jr. 
 (U. S.) App. iii. 
 
 9. E.g., title improperly inserted. Stacy 
 V. Farnham, 2 How. (N. Y.) 26. The 
 affiant's signature may be added. Watts 
 V. Womack, 44 Ala. 605; Agric. Assoc. 
 V. Madison. 9 Lea (Tenn.), 407. Contra, 
 Cohen v. Manco. 28 Ga. , 27. 
 
 10. An affidavit so drawn as to appear 
 
 314 
 
AFFINITY— AFFIRMANCE— AFFRA Y. 
 
 8. Stale Affidavits. — Affidavits in support of special applications, 
 if not used within a certain time, usually one year, become 
 " stale." 1 
 
 ArriNITY. — The relation contracted by marriage between a hus- 
 band and his wife's kindred, and between a wife and her husband's 
 kindred, in contradistinction from consanguinity or relation by 
 blood.3 
 
 AFFIRMANCE. — A decision upholding the validity of ajudg-' 
 ment.* 
 
 AFFRAY. See also RiOT ; RoUT. 
 
 Definition. — An affray is the fighting together of two or more 
 persons, either by mutual consent or otherwise, in some public 
 place, to the terror of the people.* 
 
 to have been made upon hearsay may be 
 amended. Cutler v. Rathbone, i Hill 
 (N. Y.), 204. Under the Missouri attach- 
 ment act (Rev. Code, 1855) the affidavit 
 may be amended. Henderson v. Drace, 
 30 Mo. 358; Hardin v. Lee, 51 Mo. 
 241. So in Illinois. Moore v. Mauck, 
 79 111. 3gi; Kruse v. Wilson, 79 111. 
 233. When the absence of an affidavit 
 has not been objected to in time, it may 
 sometimes be filed nunc pro tunc. Jones 
 V. Slate Co., 16 How. (N. Y.) 129. The 
 jurat may sometimes be added nunc pro 
 tunc, on proof that the affidavit was 
 actually sworn to at the proper time. 
 Williams v. Stevenson, 103 Ind. 243. 
 
 1. Ramsden v. Maugham, 4 Dowling 
 Pr. Cas. 403; Burt v. Owen, i Dowling 
 Pr. Cas. 6gl. But this staleness may 
 depend on circumstances. Clarke v. Still- 
 well, 8 A. & E. 645. See Tidd's Prac. 
 *igo, and the special forms of action in 
 which affidavits are used. 
 
 2. Carman v. Newell, I Denio (N. Y.), 
 26; Spear v. Robinson, 29 Me. 545: " By 
 the marriage one party thereto holds by 
 affinity the same relation to the kindred 
 of the other that the latter holds by con- 
 sanguinity ; and no rule is known to us un- 
 der which the relation by affinity is lost 
 on a dissolution of the marriage more 
 than that by blood is lost by the death of 
 those through whom it is derived." 
 Waterhouse w. Martin, Peck (Tenn.),38g: 
 "The connection between the husband 
 and his wife's parents, and the wife and 
 her husband's parents." 
 
 In Foot v. Morgan, I Hill, 654, it 
 was held that a justice of the peace 
 whose wife is the sister of A's wife ' can- 
 not take jurisdiction of a cause in which 
 A is the plaintiff; because such relation 
 between the plaintiff and juror is a cause 
 of challenge for the juror, or, if the sheriff 
 is thus related to the plaintiff, a cause of 
 
 challenge to the array on the ground of 
 affinity. 
 
 Paddock v. Wells, 2 Barb. Ch. (N. Y.) 
 333 : " Affinity properly means the tie 
 which arises from marriage betwixt the 
 husband and the blood-relatives of the 
 wife and between the wife and the blood- 
 relatives of the husband. But there is 
 no affinity between the blood-relatives of 
 the husband and the blood-relatives of 
 the wife." See also Solinger v. Earle, 
 45 N. Y. S. Ct. 80. 
 
 Higbe V. Leonard, i Denio (N. Y.), 
 186: "A husband is related by affinity 
 to all the consanguirui of his wife and, 
 vice versa, the wife to the husband's con- 
 sanguinei; for, the husband and wife 
 being considered one flesh, those who are 
 related to the one by blood are related 
 to the other by affinity," " But the con- 
 sanguinei of the husband are not all re- 
 lated to the consanguinei oi the wife." " If 
 this rule be correct, and I think it is, al- 
 though the justice was related by affinity 
 to the two sisters of Higbe, the plaintiff, 
 there was no such relation between him 
 and Higbe." 
 
 In Cann v. Ingham, 7 Cow. (N. Y.) 
 478, there was a deficiency of jurors, and 
 the sheriff summoned one A. whose 
 father had married the widow of the de- 
 fendant's brother. A's father died before 
 the trial, and his widow was also the 
 widow of the defendant's brother. Held, 
 there was no ground of challenge to A. 
 on his alleged affinity. 
 
 3. Drummond v. Husson, 14 N. Y. 
 60: "A dismissal of the appeal for 
 want of prosecution is clearly not an 
 affirmance of the judgment. This court 
 has decided nothing whatever in respect 
 to the validity of the judgment" 
 
 4. 2 Bisdop's Cr. L. § i ; Bouvier's 
 Law Diet., 2 Black. Com. 145. 
 
 The fighting of two or more persons in 
 
 315 
 
Definition. 
 
 AFFRA Y. 
 
 Prevention of. 
 
 Affray — Contin ued. 
 
 some public place to the terror of others; 
 and there must be a stroke' given and of- 
 fered, otherwise it is no affray, howsoever 
 quarrelsome "or threatening the words 
 may be; and the fighting must also be in 
 public, for if it be in private, it is no 
 affray, but an assault. Brown's Law 
 Diet. 
 
 If a number of persons being met to- 
 gether at a fair or market, or on any 
 other lawful occasion, happen on a sud- 
 den quarrel to fall together by the ears, 
 it seems agreed that they will not be 
 guilty of a riot, but only of a sudden 
 affray, of which none are guilty but those 
 actually engaged in it; and this on the 
 ground of the design of their meeting 
 being innocent and lawful, and the sub- 
 sequent breach of the peace happening 
 unexpectedly without any previous inten- 
 tion. I Russell on Crimes (gth Am. 
 Ed.), 406. ' 
 
 Thus, if a number of persons meet to- 
 gether at a fair or market, or upon any 
 other lajwful or innocent occasion, and 
 happen on a sudden quarrel to engage in 
 fighting, they are not guilty of a riot, but 
 of an affray only (of which none are 
 guilty but those who actually engage in 
 it); because the design of their meeting 
 was innocent and lawful, and the breach 
 of the peace happened without any previ- 
 ous intention. Hawk. P. C. b. i, c. 
 65, s, 3. 
 
 The common-law definition of an affray 
 does not involve an agreement to fight, 
 and one might become engaged~in such 
 affray without culpable fault. Supreme 
 Council, etc., v. Garrigus, 104 Ind. 133. 
 
 An affray and an assault are distinct 
 offences. Champer v. State, 14 Ohio St. 
 
 437- 
 
 The principals and seconds in a prize- 
 fight were indicted in one count for a 
 riot, and in another for an affray. The 
 evidence was that the two first prisoners 
 had fought together amidst a great crowd 
 of persons, and that the others were pres- 
 ent aiding and abetting; that the place 
 where they fought was at a considerable 
 distance from any highway, and when 
 the officers made their appearance the 
 fight was at an end. The prisoners, on 
 being required to do so, quietly yielded. 
 Alderson, B,, said: " It seems to me that 
 there is no case against these men. As 
 to the affray, it must occur in some pub- 
 lic place, and this is, to all intents and 
 purposes, a private one. As to the riot, 
 there must be some sort of resistance 
 made to lawful authority to constitute it, 
 some attempt to oppose the constables 
 ■who are there to preserve the peace. 
 
 The case is nothing more than this: Two 
 persons choose to fight, and others look 
 on. and the moment the officers present 
 themselves, all parties quietly depart. 
 The defendants may be indicted for an 
 assault, but nothing more." R. v. Hunt, 
 
 1 Cox C. C. 177; and see R. v. Brown, 
 Car. & IM. 314. 
 
 Person indicted for an affray may be 
 convicted of an assault and battery, the 
 latter offence being necessarily included 
 in the former. McClellan v. State, 53 
 Ala. 640; Thompson v. State, 70 Ala. ?6. 
 
 A person who has been convicted of 
 an affray cannot subsequently be tried 
 for assault and battery where the charge 
 covers in the same acts. Fritz v. State, 
 40 Ind. 18. 
 
 Where several are indicted for an 
 affray, any may be acquitted, and the 
 other or others convicted. Cash v. State, 
 
 2 Overt. (Tenn.) 198. Compare Haw- 
 kins V. State. 13 Ga. 322; s. c, 58 Am. 
 Dec. 517. See State v. Benthal, 5 
 Humph. (Tenn.) 519. 
 
 To support a prosecution for an affray, 
 the prosecutor must prove (l) the affray, 
 or fighting, etc.; (2) that it was in a pub- 
 lic place ; (3) that it was to the terror of 
 the king's subjects; (4) that two or more 
 persons were engaged in it. Roscoe's 
 Cr. Ev. (loth Ed.) 277. 
 , Prevention of Affrays. — " It seems to be 
 agreed that any one who sees others fight- 
 ing may lawfully part them, and ali-o 
 stay them till the heat be over, and then 
 deliver them to the constable, who may 
 carry them before a justice of the peace 
 in order to their finding sureties for the 
 peace; and it is said that any private 
 person may stop those whom he shall 
 see coming to join either party. Any 
 person present may arrest the affrayer at 
 the moment of the affray, and detain him 
 till his passion has cooled and his desire 
 to break the peace has ceased, and then 
 deliver him to a peace officer; and so 
 any person may arrest an affrayer after 
 the actual violence is over, but whilst he 
 shows a disposition to renew it by per- 
 sisting in remaining on the spot where 
 he has committed it. Both cases fall 
 within the same principle, which is, that, 
 for the sake of the preservation of the 
 peace, any individual who sees it broken 
 may restrain the liberty of him whom he 
 sees breaking it, so long as his conduct 
 shows that the public peace is likely to 
 be endangered by his acts. In truth, 
 whilst those are assembled together who 
 have committed acts of violence, and 
 the danger of their renewal continups. 
 the affray. itself may be said to continue: 
 
 316 
 
Freyention of. 
 
 AFFRA Y. 
 
 What is. 
 
 What is an Affray. — No quarrelsome or threatening words what- 
 
 and during the affray, the constable may, 
 not merely on his own view, but on the 
 information and complaint of another, 
 arrest the offenders, and of course the per- 
 son so complaining is justified in giving 
 the charge to the constable. The plain- 
 tiff went into the defendant's shop, and 
 offered to purchase an article at a price 
 marked on a ticket; the plaintiff disputed 
 with the shopman about the price, and 
 was desired to leave the shop, which he 
 refused to do, and declared he would 
 strike any man who laid hands on him; 
 a shopman then struck him on the face; 
 the plaintiff returned the blow, and a 
 contest commenced, the noise of which 
 brought down the defendant from the 
 room above; when he came down the 
 plaintiff was scuffling with the shopman ; 
 the defendant sent for a policeman, and 
 on his arrival the plaintiff was requested 
 by the defendant to go from the shop 
 quietly, but he refused; he was standing 
 still in the shop, insisting on his right to 
 remain there, and a mob gathering round 
 the door, when the defendant gave him 
 in charge to the policeman, who took him 
 to the police station. It was held that 
 the defendant had a right, the danger 
 continuing, to deliver the plaintiff into 
 the hands of the policeman, and that the 
 circumstance that the plaintiff was not 
 guilty of the -first illegal violence made 
 no difference; for at the time the defend- 
 ant interfered he was ignorant of that 
 fact: he saw the plaintiff and others in a 
 mutual contest, and that mutual contest 
 the law gave him power to terminate for 
 the sake of securing the peace of his 
 house and neighborhood, and the persons 
 of all those concerned from violence. 
 Timothy v. Simpson, i C. M. & R.,757- 
 And it seems to be clear that if either 
 party be dangerously wounded in such 
 an affray, and a stander-by, endeavoring 
 to arrest the other, be not able to take 
 him without hurting or even wounding 
 him, yet he is in no way liable to be pun- 
 ished, inasmuch as he is bound, under 
 pain of fine and imprisonment, to arrest 
 such an offender, and either detain him 
 till it appear whether the party will live 
 or die, or carry him before a justice of 
 peace. 
 
 " 1 1 seems agreed that a constable is not 
 only empowered, as all private persons 
 are, to part an affray which happens in 
 his presence, but is also bound, at his 
 peril, to use his best endeavors for this 
 purpose; and not only to do his utmost 
 himself, but also to demand the assist- 
 ance of others, which, if they refuse to 
 
 give him, they are punishable with fine 
 and imprisonment. In order to support 
 an indictment against a person for refus- 
 ing to aid and assist a constable in the 
 execution of his duty in quelling a riot, it 
 is necessary to prove: first, that the con- 
 stable actually saw a breach of the peace 
 committed by two or more persons: sec- 
 ondly, that there was a reasonable neces- 
 sity for the constable calling upon other 
 persons for their assistance and support; 
 and, lastly, that the defendant was duly 
 called upon to render his assistance, and 
 that without any physical impossibility 
 or lawful excuse, he refused to give it; 
 and whether the aid of the defendant, if 
 given, would have proved sufficient or 
 useful, is not the question or criterion. 
 And it is laid down in the books, that if 
 any affray be in a house, the constable 
 may break open the doors to preserve the 
 peace; and if affrayers fly to a house, and 
 he follow-with fresh suit, he may break 
 open the doors to take them. And so 
 far is the constable intrusted with a 
 power over all actual affrays that though 
 he himself is a sufferer by them, and 
 therefore liable to be objected against, as 
 likely to be partial in his own cause, yet 
 he may suppress them; and therefore if 
 an assault be made upon him, he may 
 not only defend himself, but also im- 
 prison the offender in the same manner 
 as if he were in no way a party. It is 
 said, also, that if a constable see persons 
 either actually engaged in an affray, as 
 by striking, or offering to strike, or draw- 
 ing their weapons, etc., or upon the very 
 point of entering upon an affray, as 
 where one shall threaten to kill, wound, 
 or beat another, he may either carry the 
 offender before a justice of the peace, to 
 the end that such justice may compel 
 him to find sureties for the peace, etc., 
 or he may imprison him of his own 
 authority for a reasonable time till the 
 heat be over, and also afterwards detain 
 him till he find such surety by obligation. 
 But it seems that he has no power to 
 imprison such an offender in any other 
 manner, or for any other pur-pose; for he 
 cannot justify the committing an affrayer 
 to jail till he shall be punished for his 
 offence; and it is said that he ought not 
 to lay hands on those who barely contend 
 with hot words, without any threats of 
 personal hurt; and that all which he can 
 do in such a case is to command them, 
 under pain of imprisonment, to avoid 
 fighting. 
 
 " It has been much doubted whether a 
 private individual, who has seen an affray 
 
 317 
 
What is. 
 
 AFFRA Y. 
 
 What is. 
 
 soever can amount to an affray. ^ Appearing in a public place 
 armed with dangerous and unusual weapons constitutes an affray 
 at common law.* It must be in a public place;* the fighting 
 must be by mutual consent,* and between two or more persons, 
 or by two or more persons against another person. ^ 
 
 committed, may give in charge to a con- 
 stable who has not; and whether such 
 consiable may. therefore, take into his 
 custody the affrayers, or either of them, 
 in order to be carried before a justice, 
 after the affray has entirely ceased, after 
 the offenders have quitted tlie place where 
 it was committed, and there was no dan- 
 ger of renewal, but it seems now to be 
 settled that a constable has no power to 
 arrest a man for an affray done out of 
 his own view without a warrant from a 
 justice of peace (Cook v. Nethercote, 
 6 C. & P. 741; Fox V. Gaunt. 3 B. & 
 Ad. 798; R. V. Curvan, R. & M. C. C. 
 R. 132; R, V. Bright, 4 C. & P. 387; R. 
 V. Light, D. & B. C. C. 332; R. V. 
 Walker, Dears. C. C. 358), unless a fel- 
 ony be done, or likely to be done; for it 
 is the proper business of a constable to 
 preserve the peace, not to punish the 
 Ijreach of it; and where a breach of the 
 peace has been committed, and is over, 
 the constable must proceed in the same 
 way as any other person; namely, by 
 obtaining a warrant from a magistrate. 
 Cook V. Nethercote, 6 C. & P. 741. It 
 is said that he may carry those before a 
 justice of peace who were arrested by 
 such as were present at an affray, and 
 delivered by them into his hands. Where 
 the plaintiff was imprisoned by a con- 
 stable in a cell on a false churge of as- 
 sault, and the defendant, another con- 
 stable, on hearing the charffe from a. 
 third constable, without inquiry into the 
 facts, took the plaintiff before the magis- 
 trates, it was held that the defendant, in 
 order to justify himself, was bound to 
 show that the charge was well founded, 
 and, having failed to do so. was liable to 
 an action, of trespass." Griffin v. Cole- 
 man, 4 H. & N. 265; I Russell on Cr. (gth 
 Am. Ed.) 408. 
 
 1. O'Neii V. State, 16 Ala. 65; Haw- 
 kins V. State, 13 Ga. 322; s. c, 58 Am. 
 Dec. 517. 
 
 If one person, by such abusive lan- 
 guage as is calculated and intended to 
 bring on a fight, induces the other to 
 strike him, he is guilty of an affray, 
 though he may be unable to return the 
 blow. State v. Perry, 5 Jones L. (N. 
 Car.) 9; s. c, 69 Am. Dec. 768. See 
 State V. Robbins, 78 N. Car. 431; State 
 V. Davis, 80 N. Car. 351; s. c, 30 Am. 
 
 31 
 
 Rep. 86; State v. Sumner, 5 Strob. (S. 
 Car.) 53. Compare Harrison v. Mosely, 
 31 Tex. 608. 
 
 2. I Russell on Crimes (gth Am. Ed.) 
 407. Compare Simpson v. State, 5 Yerg. 
 (Tenn.) 356. 
 
 3. The indictment need not describe 
 the public place; that is a matter of 
 proof. Shelton v. State, 30 Tex. 431. 
 See State v. Baker, 83 N. Car. 649. 
 Compare State v. Heflin, 8 Humph. 
 (Tenn.) 84. 
 
 Where two of the prisoners had fought 
 together amidst a great crowd of per- 
 sons, and the others were present aiding 
 and assisting, at a place a considerable 
 distance from any highway, and the fight 
 ceased on the appearance of some peace 
 officers, it was held that this was not an 
 affray; for an affray must occur in some 
 public place, and this was, to all intents 
 and purposes, a private one. R. v. Hunt, 
 I Cox Cr. Cas. 177. 
 
 Evidence is admissible to show that the 
 affray commenced in a. private house, 
 where it further shows that the com- 
 batants passed out of the house and con- 
 tinued the fight without cessation in a 
 public street. State v. Billings, 72 Mo. 
 662. See Wilson v. State, 3 Heisk. 
 (Tenn.) 278. 
 
 A field surrounded by a forest, and 
 situated one mile from any highway or 
 other public place, does not lose its pri- 
 vate character by the casual presence of 
 three persons, so as to make two of them, 
 who fight together willingly, guilty of an 
 affray. Taylor v. State, 22 Ala. 15. 
 See R. v. Hunt, I Cox C. C. 177; R. 
 V. Brown, C. & M. 314. 
 
 An inclosed place, ninety feet from the 
 street, and visible from it, is a public 
 place. Carwile v. State, 35 Ala. 392. 
 
 A highway is not necessarily a pub- 
 lic place. State v. Weekly, 29 Ind. 
 206. 
 
 4. Klum V. State, i Blackf. (Ind.) 377; 
 Duncan ». Commonwealth, 6 Dana (Ky ), 
 295; State V, Downing, 74 N. Car. 184. 
 Cpmpare Cash v. State, 2 Overt. (Tenn.) 
 ig8. 
 
 On trial of an affray, a party cannot be 
 heard to say that he did not intend to 
 bring about a breach of the peace. State 
 V. King. 86 N Car. 603. 
 
 5. Thompson v. State, 70 Ala. 26. 
 
AFFRA Y— AFORE— AFORESAID. 
 
 Accessories. — All persons who assist, or, being present, aid and 
 encourage parties engaged in an affray, are guilty as principals.* 
 
 AFORE, — Priority in point of time.** 
 
 AFORESAID. — Means generally next before.* 
 
 1. Sikes V. Johnson, i6 Mass. 389; 
 Avery v. Bulkly, l Root (Conn.), 275; 
 State V. Lanier, 71 N. Car. 288; Haw- 
 kins V. State. 13 Ga. 322; s. c, 58 Am. 
 Dec. 517; Gillon v. Wilson, 3 T. B. 
 Mon. (Ky.) 216; Curlin v. State, 4 Yerg. 
 (Tenn.) 143. 
 
 Successful defence of one will operate 
 as acquittal of both defendants where the 
 two are indicted for an affray. Haw- 
 kins V. State, 13 Ga. 322; s. c, 58 Am. 
 Dec. 517; Cruce v. State, 59 Ga. 83. 
 
 2. The sta'tute 3 H. 7 c. 10 enables a de- 
 fendant in error " to recover his costs 
 and damages for his delay " if a writ of 
 error be sued out " afore execution had." 
 Held, that the writ is sued out ' ' afore 
 execution had" if an execution has is- 
 sued before the writ, but has been ren- 
 dered ineffectual by proceedings taken 
 adversely to the plaintiff below. New- 
 lands V. Holmes, 4 S. B. 859. 
 
 3. "Aforesaid means generally next 
 before ; yet a different signification will 
 be given to it if required by the con- 
 text and the facts of the case." Simpson 
 ■V. Roberts et ux., 35 Ga. 181. 
 
 In Statute. — The United States statutes 
 provide " Every association may take, re- 
 ceive, reserve, and charge on any loan 
 or discount made, or upon any note, bill 
 of excliange, or other evidences of debt, 
 interest at the rate allowed by the State 
 or Territory where the bank is located. 
 . . . And when no rate is fixed by the 
 laws of the State or Territory, the bank 
 may take, receive, reserve or charge a 
 rate not exceeding seven per centum, and 
 such interest may be taken in advance, 
 reckoning the days for which the note, 
 bill, or other evidence of debt has to 
 run. And the knowingly taking, receiv- 
 ing, reserving, or charging a rate of in- 
 terest greater than aforesaid shall be 
 held and adjudged a forfeiture," etc. The 
 
 preceding section alone, but they may 
 refer to others also. Reg. v. Eastern 
 Railway Co., 2 Q. B. 347. 
 
 As Aforesaid. — Sec. 3 of 12 and 13 
 Vict. c. 92 enacts that any person who 
 shall keep or use or act in the man- 
 agement of any place for fighting or bait- 
 ing animals shall be liable to a penalty; 
 and by way of proviso, in order to obviaie 
 the difSculty of proving who such person 
 was, defines that every person who re- 
 ceives money for the admission to any 
 place kept or used for any of the pur- 
 poses aforesaid " shall be deemed to be 
 a keeper thereof," and then adds that 
 every person who shall encourage, aid, 
 or assist at the fighting or bailing of 
 any bull, etc., "or other animal afore- 
 said," shall be also liable to a penalty. 
 Looking into the frame of the section, and 
 considering also that it is a penal enact- 
 ment, I think that the words "as afore- 
 said" mean, "in any place kept or used 
 for any purposes aforesaid." Morley z*. 
 Greenhalgh, 3 B. & S. (Eng. C. L.) 379, 
 affirming Clark v. Hague, 2 El. & El. 
 2&1. -^ 
 
 BroTight np as Aforesaid. — These words 
 do not apply where no one is brought up 
 and where the registrar in bankruptcy 
 goes to the bankrupt. Bramwell v. Ey- 
 lington, 5. Best & Smith. 56. 
 
 Convicted as Aforesaid, — These words 
 do not refer alone to the section or clause 
 immediately preceding. Rex v. Bell- 
 amy, I B. & C. 505. 
 
 In Deed : " County Aforesaid." — By a 
 parish indenture which purported to be 
 made between the church warden, etc., of 
 D. parish in the county of N. of the one 
 part, and A B of C, in the county of L., 
 of the other part, it was witnessed that 
 the said church -warden, etc., of D. par- 
 ish, with the consent of two of his majes- 
 ty's justices of the peace for the said 
 
 question before the court was whether county, dwelling in or near said parish. 
 
 "aforesaid" applied only to the immedi- 
 ately preceding clause, "when no rate is 
 fixed by the laws of the State or Terri- 
 tory," or to the whole section. It was 
 held, there was no rule of grammatical 
 construction which limits its reference to 
 the paragraph immediately preceding. 
 Central Nat. Bank v. Pratt, 115 Mass. 
 544; contra. First National Bank v. Lamb 
 et dl.. 50 N. Y. 95. The words "as afore- 
 said" do not necessarilv: apply to the 
 
 had bound, etc. The justices in their 
 written consent on the margin of the in- 
 denture described themselves as justices 
 "of the county aforesaid." Held, that 
 the words "county aforesaid" had the 
 same meaning as the words "^aid coun- 
 ty," and that it sufficiently appeared by 
 reference to the latter words that the con- 
 senting justices were justices of the coun- 
 ty of N. Rex V. Countesthorpe, 2 Barn. 
 & Ad. 487. 
 
 319 
 
Various Constructions. 
 
 AFORESAID. 
 
 Various Constructionia 
 
 Aforesaid — Con tin ued. 
 
 In Indictment: "County Aforesaid." — 
 " Here the county of Hickory is named, 
 and also the county of Pollc — two coun- 
 ties mentioned in the body of the indict- 
 ment — and the offence is stated to have 
 been committed ' at the county aforesaid" 
 without showing certainly which county; 
 this is not sufficient." State z/. McCraclc- 
 en, 20 Mo. 411. 
 
 In Regina v. Hunt et al. 10 Q. B. 926, 
 the first count of the indictment charged 
 -a conspiracy to defraud the prosecutor of 
 his money by bringing an unfounded ac- 
 tion on promises against him, which came 
 on to be tried at the assizes for "the 
 county of Surrey." The second count 
 charged another conspiracy "at the par- 
 ish aforesaid in the county aforesaid;" 
 and the objection was, that as the county 
 last named was Surrey, it appeared that 
 the Middlesex jury could have had no 
 jurisdiction to try the indictment. The 
 court pointed out that the only " parish 
 aforesaid " was alleged to be in the county 
 of Middlesex. 
 
 In Reg. V. Albert, 5 Q. B. 41, Den- 
 man, C. J., said: "The objection as now 
 presented to us brings the question to 
 this: whether the parish if St. Stephen, 
 Coleman Street, sufficiently appears by 
 the indictment to be in the city of Lon- 
 don. The act 22 Car. 2, c. u, shows 
 that it is within the city; and where an 
 indictment mentions a parish in a county 
 and afterwards an act is alleged to have 
 been done in the 'county aforesaid,' that 
 averment as to place is sufficient." 
 
 In Plea: "County Aforesaid." — One 
 Fenn of Wills County was attached to 
 answer one Sutton, and whereupon the 
 said Sutton complains that the said Fenn 
 in the "county aforesaid" was indebted 
 to the said Sutton. The court: "There 
 is no difficulty in this case. The margin 
 given is the whole. All references to 
 counties are supposed to be the county 
 named in the margin. The other county 
 of Wills is in the recital of the writ and 
 makes no part of the count or declara- 
 tion." Sutton V. Fenn, 2 W. Bl. 847. 
 
 From Any of the Places Aforesaid. — 
 "Aforesaid " naturally refers to the places 
 named immediately before. Peake v. 
 Screech, 7 Q. B. 610. 
 
 From the Day and Year Aforesaid, — 
 Held, that "from" was to be taken as 
 including the day on which the contract 
 containing the above clause was entered 
 into. Wilkinson v. Gaston, g Q. B. 137. 
 
 Her Part Aforesaid. — Testator devised 
 as follows: "I give and bequeath to my 
 'daughter, Mary Gill, all the houses, out- 
 -houses, garden and other property which 
 
 I now- hold under the trustees of the poor 
 of the township of Almondbury, for the 
 term of ggg years; and I also give one 
 half part of my books to my daughter, 
 Mary Gill, aforesaid, the other half to 
 my widow, Sarah Gill, to be equally di- 
 vided by T. S. If my daughter Mary 
 should happen to die unmarried, it is my 
 will then that her part aforesaid shall be 
 equally divided," etc. Abbott, C.J. : "I 
 think the expression 'her part aforesaid ' 
 applies to the whole, which by the former 
 part of the will had been given to the 
 daughter." Doc. dem. Gibson v. Gill, 2 
 Barn. & Cress. 680. 
 
 Purposes Aforesaid. — The words " pur- 
 poses aforesaid," in sec. 32 of the Rail- 
 ways Clauses Consolidation Act, 1845, 
 refers to the purposes mentioned in the 
 former part of the same section only. 
 Fenwick v. East London R. Co., L. R. 
 20 Eq. Cas. 544. 
 
 So as Aforesaid. — In Reg. v. Craddock, 
 Temp. & M. 365, Williams, J., was of the 
 opinion that the words: " so as aforesaid" 
 meant "as I said before;" but Pollock, 
 C. B., doubted whether they were intend- 
 ed to refer to the matter immediately 
 preceding. 
 
 Time Aforesaid. — A sheriff's deed re- 
 cited that the grantor, having taken on 
 execution the equity of redemption which 
 J. S. had at g A.M. on January, 1865, 
 " being the time when the same was at- 
 tached by mesne process," in certain land, 
 having given specified notices, and "hav- 
 ing for sufficient cause duly adjourned the 
 sale once not exceeding seven days," 
 sold the said equity on December 23, 
 1865. The grant in the deed was of all 
 the right to redeem which J. S. had at 
 the "time aforesaid." Held, that the 
 " time aforesaid " referred to the time of 
 attachment and not to the day of sale. 
 Sanborn w. Chamberlin et al., loi Mass. 
 40g. 
 
 When and so soon as she shall Marry 
 as Aforesaid. — Under a will a rent charge 
 was devised to L; for life, subject to a 
 restriction as to her marriage (mentioned 
 in one of the preceding items of the will); 
 the testator then said, " When and so 
 soon as she shall marry as aforesaid, then 
 upon trusts, "etc. Held, the clause "when 
 and so soon as she shall marry as afore- 
 said" did not make the marriage of L. ac- 
 cording to the terms of the previous de- ^ 
 vise to her a condition precedent to the 
 vesting of the estates. Beamont v. 
 Squire, 17 Q. B. go6. 
 
 Voyage or Voyages Aforesaid. — The 
 United States chartered a vessel to go 
 to N. and return. It was further stipu- 
 
 320 
 
AFORETHO UGHT—AFO UL— AFTER. 
 
 AFOEETHOTJGHT.— Premeditated, or thought of before.* 
 
 AFOUL. — In an action for slander, the use of this word, without' 
 a special averment, was held not to warrant the innuendo that the? 
 plaintiff was guilty of buggery.* 
 
 AFTER. — This word is used in reference to time to denote a. 
 sequence ; it also refers to order in point of right or enjoyment ; 
 subject to.' 
 
 lated that the charter should continue 
 so long as the vessel was required by • 
 the United States. The United States 
 also agreed to employ the vessel " for the 
 vovage or voyages aforesaid." It was 
 held that the contract only embraced 
 the employment of the vessel when on 
 such voyage or voyages, and did not ex- 
 tend to demurrage. Mitchell v. United 
 States, 96 U. S. 162. 
 
 1. '■ ■ Premeditated' and 'aforethought' 
 are synonymous, and ' premeditated 
 malice' and 'malice aforethought, 'are in 
 sense and meaning the same." Edwards 
 *. State, 25 j^rk. 446. 
 
 Malice aforethought. — The legal mean- 
 ing of 'malice aforethought ' in cases of 
 homicide is not confined to homicide 
 committed in cold blood, with settled de- 
 sign and premeditation, but extends to 
 all cases of homicide, however sudden 
 the occasion, when the act is done with 
 such cruel circumstances as are ordinary 
 symptoms of a wicked, depraved, and 
 malignant spirit. United States v. Cor- 
 nell. 2 Mason, gi. 
 
 "Murder is the voluntary killing of 
 any person of malice prepense or afore- 
 thought, either express or implied by 
 law; the sense of which word, malice, is 
 not only confined to a particular ill-will 
 10 the deceased, but is intended to de- 
 note, as Mr. justice Foster expresses it, 
 an action flowing from a wicked and cor- 
 rupt motive, a thing done malo anivto.'^ 
 Commonwealth v. Webster, 5 Cush 
 (Mass.) 306. 
 
 So "malice aforethought" is not so 
 properly spite or malevolence to the de- 
 ceased in particular, as any evil design 
 in general; the dictate of a wicked, de- 
 praved, and malignant heart." State v. 
 Ricke, 49 N. H. 404; Commonwealth w. 
 Drum. 58 Pa. 9; Jones v. The State, 29 
 Ga. 594. 
 
 2. The statement that the plaintiff had 
 been caught " afoul" of a cow does not 
 warrant the innuendo that he was guilty 
 of the crime of bestiality. The most 
 usual signification of the word foul, as an 
 adjective, is unclean, filthy, dirty. The 
 phrase "to fall foul" is not an uncom- 
 mon one. The definition of it, given in 
 
 Webster's dictionary, is, to rush on with ^ 
 haste, rough force, and unreasonable 
 violence; to run against, as, the ship fell . 
 foul of her consort. Dr. Johnson gives . 
 the following example ; "In his sallies, 
 their men might fall foul of each other." 
 If the defendant had been in the prac- 
 tice, by the words laid, to impute the 
 crime of bestiality, or if he had used them 
 on this occasion in that sense, and they 
 were so understood by the hearers, there 
 should have been a special averment to 
 that effect. Harper v. Delp, 3 Ind. 225, 
 231. 
 
 3. The word "after," like "from," 
 "succeeding," "subsequent," and simi- 
 lar words, where it is not expressly de- 
 clared to be exclusive or inclusive, is . 
 susceptible of different significations, and 
 is used in different senses, and with an 
 exclusive or inclusive meaning according, 
 to the subject to which it is applied; and 
 as it would deprive it of some of its 
 proper significations to affix one invari- 
 able meaning to it in all cases, it would, 
 of course, in many of them, pervert it 
 from the sense of the writer or speaker. 
 Its. true meaning, therefore, in any par- 
 ticular case must be collected from its 
 context and subject-matter, which are 
 the only means by which the intention is 
 ascertained. Sands 21. Lyon, 18 Conn. 
 18. 27. 
 
 Where a statute enacted that war- 
 rants of attorney to confess judgment , 
 should be filed "within twenty-one 
 days after the execution," it was held 
 that the twenty one days for filing 
 are to be reckoned exclusively of the 
 day of execution. Williams v. Burgess 
 etal.. 12 Ad. & Ell. 635. 
 
 The language of the statute is that writs 
 of a^. fa. may be issued, etc., "after the 
 expiration of thirty days from the entry of 
 such judgment." According to the rule of 
 construing statutes adopted by this court 
 the computation of the thirty days ex- 
 cludes the day of entering the judgment; 
 in other words, as to the first and last 
 days, one is to be counted exclusively 
 and the other inclusively. Commercial 
 Bank of Oswego v. Ives, 2 Hill (N. Y.), 
 355- Q^' Butts V. Edwards, 2 Denio . 
 
 321 
 
Tarious Constructions, 
 
 AFTER. 
 
 Various Constructions. 
 
 After — Continued. 
 
 (N. Y.), i64r Jiiddw. Firltoir, lO Barb. 
 (N. Y.), 117; Page v. Weymouth, 47 Me. 
 238. 
 
 Where a clause in a will was, "It is 
 my will that, after settling my estate, my 
 wife have the interest of the remainder 
 of my personal estate," the court said: 
 "After settling my estate" seems equiv- 
 alent to "subject to the settlement." 
 The word "after" does not always or 
 necessarily refer to time, but to order in 
 point of right or enjoyment. Lamb v. 
 Lamb, 11 Pick. (Mass.) 371, 378. 
 
 The fourth clause of the will says, "I 
 give to my sons each one ninth part of my 
 estate, real and personal, after providing 
 for the bequest to my wife." The word 
 " after" used in such a connection is often 
 and properly construed to mean " subject 
 to" "after taking out, deducting, or ap- 
 propriating." Hooper, Ex., v. Hooper 
 et al., 9 Cush. (Mass.) 122, 128. Cf. Gib- 
 son V. Walker, 20 N. Y. 476, 484. 
 
 The term " after" does not always des- 
 ignate the time at which one thing is done 
 in reference to something else, but it ex- 
 presses the relative priority and subor- 
 dination of one claim to another in mat- 
 ter of right. So we think it does here; 
 the residue is to be formed subject to 
 the payment of debts and chafges, al- 
 though they may be actually paid after- 
 wards. Treadwell v. Cordis, 5 Gray 
 (Mass.), 341, 353. 
 
 After Conviction. — Where the constitu- 
 tion grants the power to pardon "after 
 conviction," the pardon is not invalid 
 because the prisoner appealed and there- 
 by vacated the sentence or judgment. 
 Conviction is ordinarily used to denote 
 the verdict of the jury. State v. Alexan- 
 der, 75 N. C. 231. Cf. Blair's Case, 25 
 Gratt. 850. 
 
 In Arkansas it has been held that the 
 power to pardon "after conviction," 
 vested in the governor by the constitution 
 of 1864, is not prohibitory of the exer- 
 cise of that power by the legislature be- 
 fore conviction. State v. Nichols, 26 
 Ark. 74. 
 
 After Judgment. — Under a motion by 
 persons who had given bond, under the 
 eighth section of stat. I and 2 Vict. c. 
 no (for abolition of arrest on mesne pro- 
 cess), to be allowed to render their prin- 
 cipal after verdict against him and before 
 judgment (said section reading as fol- 
 lows: " If a creditor of a trader shall file ' 
 an affidavit in the court of bankruptcy 
 that his debt is justly due, . . . and if 
 such trader shall not within twenty-one 
 days . ■ . enter into a bond ... to pay 
 . . . or to render himself , . . according 
 
 to the practice of such court . . . ' after 
 judgment' shall hav& been recovered," 
 etc.), the court held "some doubt ex- 
 isted as to the words ' after judgment' in 
 the eighth section; namely, whether they 
 apply to the whole preceding matter or 
 not; as to which we think that, at all 
 events, they do not apply to a render, 
 'according to the practice of such court;' 
 and as bail would by that practice have 
 been at liberty to render a defendant after 
 verdict and before judgment, we think 
 that the obligors in this bond must be at 
 liberty to do the same." Owston v. 
 Coates, 10 Ad. & Ell. 193. 
 
 An order discharging a defendant from 
 imprisonment, under " the act for the re- 
 lief of persons imprisoned on civil pro- 
 cess," though entered by the judge of an- 
 other court, who is authorized by law to 
 take jurisdiction of such proceedings, is 
 a "special order made after final judg- 
 ment," within the meaning of the three 
 hundred and thirty-sixth section of the 
 Practice Act, and an appeal therefrom 
 taken more than sixty days after the en- 
 try of the order is too late. Wells, Fargo 
 & Co. V. Anthony, 35 Cal. 696. 
 
 After Verdict. — The statute 6 G. 4, c. 
 50, enacts that the party who shall apply 
 for a special jury shall pay the costs oc 
 casioned thereby, unless the judge before 
 whom the cause is tried shall imme- 
 diately after the verdict certify that the 
 cause was proper to be tried by a special 
 jury, ffeld, that a defendant who had 
 applied for a special jury was not entitled 
 to the costs of that jury, where the judge 
 who tried the cause nonsuited the plaintiff 
 on his opening, even though the judge had 
 certified as above. Wood v. Grimwood, 
 10 B. & C. 689. 700. 
 
 After the Fact Committed. — Under the 
 53 Geo. 3, c. 127, s. 12, which requires 
 that an action for anything done in pur- 
 .suance of the act shall be commenced 
 witlyn three calendar months after the 
 fact committed, an action of trespass for 
 seizing, taking and carrying away, and 
 distraining and selling the plaintiff's 
 goods under a warrant of distress for ar- 
 rears of a church rate, may be brought 
 within three calendar months after the 
 sale. For, said the court: "The fact 
 committed under color or in pursuance 
 of the statute is not merely the seizure, 
 but the sale also. The seizure of the 
 goods is made not absolutely, but with a 
 view to their detention only until the 
 amount should be paid, and their subse- 
 quent sale if it should not; and the seiz- 
 ure, when a sale has taken place, is but a 
 part of the entire act complained of, and 
 
 323 
 
Varioaa Conatractions, 
 
 AFTER. 
 
 Various Constructions. 
 
 After — Continued. 
 
 which forms the real grievance to the 
 plaiatiS. And this circumstance distin- 
 guishes the present case from those in 
 which the seizure was for a forfeiture, 
 and was in its nature absolute, and must 
 be considered as intended to deprive the 
 plaintiff of his property immediately." 
 Collins V. Rose, 5 M. & W. 164, 202. 
 
 After the Payment. — The words in a 
 will. " after my debts and funeral charges 
 are paid, I devise and bequeath as fol- 
 lows," amount to a charge upon the real 
 estate for the payment of debts. Fen- 
 wick V. Chapman, 9 Peters, 461. 
 
 The words, "after payment of my debts, " 
 mean that he will not give anything until 
 his debts are paid. He could not help 
 paying his debts out of his personal es- 
 tate; he could not give a pecuniary legacy, 
 but after his debts paid. Therefore, if I 
 do not make that construction, part of 
 the will is perfectly nugatory. I agree 
 that if testator does manifest in any 
 part of his will that his debts shall be 
 paid, they are to be paid before any dis- 
 position of what he has power to dispose 
 of. "After payment of his debts" means 
 that until his debts are paid he gives 
 nothing; that everything he has shall be 
 subject to his debts. To give those words 
 any effect, they must charge the real es- 
 tate. I am very clearly of opinion that 
 wherever a testator says he wills that his 
 debts shall be paid, that will ride over 
 every disposition, either as against his 
 heir-at-law or devisee ; and the words, 
 " after my debts are paid," mean the same 
 thing. Arden, M. R. Shallcross v. Fin- 
 den, 3 Vesey, Jr., 738. 
 
 Where a testator directed his trustees to 
 pay the annual sum of ;^ioo to his mother 
 for life, and from and "after the pay- 
 ment" of the said annual sum of ;^ioo, 
 and subject thereto, he declared that they 
 should stand possessed of his estate upon 
 trusts, the income of the whole estate 
 proving insufficient to pay the annuity, it 
 was held that the terms of the gitt over 
 made the annuity a charge upon the cor- 
 pus, out of which it must be paid annually. 
 Birch 11. Sherratt, L. R. 2 Ch. App. 644. 
 
 After Work. — Under a fire-insurance 
 policy which required an examination of 
 the mill "thirty minutes after work," it 
 was held that the assured were bound, 
 by their representation that the mill was 
 examined thirty minutes after work, to 
 make such examination thirty minutes 
 after the extra work, as well as after 
 regular work; and also that the question 
 what is a cessation of work at the factory 
 from which the thirty minutes are to be 
 computed is a question for the jury, un- 
 
 323 
 
 der all the circumstances of each partic- 
 ular case. Houghton v. Manufacturers' 
 Mutual Fire Ins. Co., 8 Mete. (Mass.) 114. 
 
 After Date. — It is entirely clear, from 
 Pugh V. The Duke of Leeds, Cowper, 714, 
 that the words ' ' from" or ' ' after the date, " 
 or " the day of the date," include the day 
 when they are used in a conveyance to 
 create an estate; but it is just as clear, 
 from other cases about to be noticed, that 
 they exclude it when they are used in an 
 instrument to perpetuate the evidence of a 
 debt. Indeed, it seems from what is said 
 in Preston on Conveyancing, p. 387, that 
 the distinction sprung out of that deci- 
 sion, previous to which the general rule 
 was to exclude the day in both cases. It 
 is now a settled rule that as the law re- 
 jects fractions of a day, it views it for 
 most purposes as an indivisible point, 
 and consequently that "the date," or 
 "the day of the date," being coexten- 
 sive with the entire day, excludes it when 
 it occurs in a bill, note, or bond. Taylor 
 V. Jacoby, 2 Pa. St. 495. 
 
 The words in the Stamp Act, 55 Geo. 
 3, c. 184, schedule pt. i (title "Bill of 
 Exchange "), which imposes a certain 
 duty on bills "exceeding two months 
 after date," mean the time expressed on 
 the face of the bill, not the time when 
 it actually issued. Williams v. Jarrett, 
 5 B. & Ad. 32. 
 
 The words "after date of appoint- 
 ment," and " from such date," which oc- 
 cur in sec. 1556 of the Revised Stat. 
 U. S., fixing the annual pay of passed 
 assistant surgeons of the navy, refer not 
 to the original entry of the officer into the 
 service as an assistant surgeon, but to 
 the notification by the Secretary of the 
 Navy that he has passed his examination 
 for promotion to the grade of surgeon, 
 and will thereafter, until such promotion, 
 be considered a passed assistant surgeon 
 U. S. V. Moore, 5 Otto (U. S.) 760. 
 
 ' For the space of one month after the 
 return day" and "within one month 
 from the return day" are equivalent ex 
 pressions. Gore v. Hedges, 7 T, B. 
 Mon. (Ky.) 521. 
 
 Ten days after peace is made be 
 tween the United States and the Con 
 federate States, used in a bond to specify 
 the time at which the money is payable, 
 means "ten days after peace," and does 
 not render the ratification of a treaty of 
 peace between the powers mentioned a 
 condition precedent to the payment. 
 Chapman v. Wacater, 64 N. C 532. 
 
 On the question under the Georgia sta- 
 tute giving four days within which appeals 
 may be entered as to whether Sunday is 
 
AFTERNOON— AFTER WARD. 
 
 AFTERNOOll'. — Subsequent to or following noon or midday: 
 generally used of the earlier part of that time, as distinguished 
 from evening.^ See also TIME. 
 
 AFTERWARD — AFTERWARDS. — Subsequent in order of 
 time.'-* 
 
 lo be counted as one of the "four days 
 after," etc., the court said: "Our judg- 
 ment, therefore, is that four clear days, 
 as they are called in the old books, or 
 working days, as they might perhaps be 
 more appropriately designated, are al- 
 lowed for entering appeals; and that 
 whether Sunday be the first or last or an 
 intervening day, it is not to be counted. 
 Neal V. Crew, 12 Ga. 93. 100. 
 
 After the Passing or Passage. — An act 
 in contemplation of law comes into effect 
 from the commencement of the day on 
 which it received the royal assent; and 
 inasmuch as the law takes no notice of 
 the fractions of a day where the right of 
 a single woman who is delivered of a 
 bastard child to apply for an order of 
 affiliation depends on the birth of her 
 child '• after the passing of the act," it is 
 sufficient if the child is born on the day 
 the act receives the royal assent. Tom- 
 linson V. Bullock, L. R. 4 Q. B. Div. 230. 
 
 From the impracticability of decid- 
 ing at what particular moment of lime 
 the President gives his seal to a bill, we 
 have never heard of such an inquiry be- 
 ing made, and the least which courts 
 have ever said on such occasions is ihat 
 where an act is to take place from the 
 day of its passing, it must embrace the 
 whole of that day. U. S. v. Williams, i 
 Paine (U. S.), 261. The statute was to 
 take effect from its passage; and it is a 
 general rule that where the computation 
 is to be made ' from an act done,' the day 
 on which the act is done is to be in- 
 cluded. Arnold v. U. S. , 9 Cranch (U. S.), 
 104, 120. 
 
 1. Under an act of Parliament prohib- 
 iting the keeping open a place for the sale 
 of- liquor during "the usual hours of 
 afternoon divine service" in the parish 
 church, where the evening service was 
 read in the church at 6 p.m., but there 
 was an afternoon service at 2 P.M. in the 
 parish workhouse, and the innkeeper had 
 his place open for the reception of cus- 
 tomers at half-past 6 o'clock P.M., the court 
 held: ."The question is, what was the 
 usual hour of afternoon divine service ? 
 The word ' afternoon ' has two senses. It 
 may mean the whole time from noon to 
 midnight, or it may mean the earlier part 
 of that time as distinguished from the 
 evening. I think that in this act it is 
 used in the latter sense, and that the in- 
 
 tention of the legislature was to prohibit 
 the opening of ^public houses during the 
 usual hour of divine service in the after- 
 noon, if there was one in the church. In 
 Newport Pagnell divine service was in the 
 workhouse." Earle, J.: " The legislature 
 has not said that it shall be penal to keep 
 open an inn during evening service, but 
 during afternoon divine service. Was, 
 then, this evening service, performed at 
 sixio'clock, afternoon service? No; it 
 certainly was evening service. In the 
 parish of Newport Pagnell since 1836 
 there is no afternoon service in the 
 church; it is in the workhouse; and the 
 hours at which the evening service is per- 
 formed in the church are no more the 
 usual hours of afternoon divine service 
 than they would be , if the afternoon 
 divine service, instead of being performed 
 in the workhouse, was performed in the 
 church." Campbell, C. J. Queen v. 
 Knapp, 2 Ellis & Blackburn, 447. 
 
 2. ' ' There Afterwards" also may have 
 its use in the sentence, without suppos- 
 ing that another time was intended to be 
 expressed by it. It most probably was 
 intended to show that the beating with a 
 rope, thoiigh a part of the same outr.ige 
 as the beating with a plank, was subse- 
 quent to it in order of time. Benson v. 
 Swift, 2 Mass. 50. , , 
 
 Under the statutory conditions of the 
 province of Canada to a fire-insurance 
 policy which require the assured to give 
 notice of his loss and to deliver " as soon 
 afterwards as practicable " a particular 
 account, it has been held that the words 
 "as soon afterwards as practicable" 
 mean within a reasonable time. Par.'Jons 
 V. Queen Ins. Co., 43 Upper Canada Q. 
 B. 271, 280: (■/. Cammell v. Beaver Mut. 
 Ins. Co., 39 U. C. R. I. 
 
 Where an act of Parliament prohibited 
 the recovery of any costs on a verdict of 
 less than 40J. unless the judge certified 
 "immediately afterwards" on the back 
 of the record, it was held that " immedi- 
 ately afterwards " means within a reason- 
 able time, and that a delay of ten days, 
 during which no application was made to 
 the judge, although there was nothing*to 
 prevent it, was not a compliance wilh 
 the statute, and that a certificate made 
 after such lapse of time was too late, and 
 it was set aside. Forsdike et ux. v. Stone, 
 L. R. 3 C. P. 607. 
 
 334 
 
Tarious Constructions. 
 
 AGAINST. 
 
 Various Constructions. 
 
 AGAINST. — In opposition to ; in contradiction to.^ 
 
 1. Where an indictment charged that 
 the defendant, "in and upon one," A. 
 B., "did feloniously, purposely, and with 
 premeditated malice make an assault, and 
 then and there, at and against the said" 
 A. B., "did feloniously, purposely, and 
 with premeditated malice shoot a cer- 
 tain pistol, then and there loaded with 
 gunpowder and leaden ball, which he," 
 the defendant, " then and there had and 
 held in his hand, with intent," etc., the 
 court held that the indictment sufficiently 
 charged an assault and battery, saying: 
 " The particular meaning of the word 
 ' against ' depends, to a very considerable 
 extent, on the connection in and the pur- 
 poses for which it is used. To push or 
 run against a person implies, in common 
 parlance, a coming in contact or collision 
 with the person so pushed or run against. 
 To say that a stone was hurled at and 
 against a person would very naturally 
 make the impression that such person 
 was hit by the stone. It is said that 
 where one person wilfully pushes a 
 drunken man against another person, 
 from which an injury ensues, it consti- 
 tutes an assault and battery. See Rus- 
 sell on Crimes, 1021. Although the 
 words used in this indictment are not 
 the most appropriate that might have 
 been selected for the purpose, we are of 
 the opinion that an asssiult and battery is 
 sufficiently charged against the appellee." 
 State V. Prather, 54 Ind. 63. 
 
 Where a complaint was made in this 
 form, " F., on oath, complains against 
 P., at M., on the first of February in the 
 year 1844 did sell to C. one glass of spirit- 
 uous liquors," etc., it was held, that the 
 word " against"might be rejected as sur- 
 plusage, and that the complaint without 
 that word was sufficient. Com. v. Pen- 
 niman, 8 Mete. (Mass.) 519. 
 
 Against Her Will. — In statutes defin- 
 ing the crime of rape, this expression 
 means "without her cotisent," and the 
 crime is committed if the woman's con- 
 sent has not been obtained, even though 
 no violence has been used. "The earlier 
 and more weighty authorities," says 
 Gray, J., in a case where a woman had 
 been ravished while insensible, "show 
 that the words 'against her will,' in 
 the standard definitions, mean exactly 
 the same thing as ' without her consent;' 
 and that the distinction between these 
 phrases, as applied to this crime, which 
 has been suggested in some modern 
 books, is unfounded. We are there- 
 fore unanimously of the opinion that the 
 crime which the evidence in this case 
 I C. of L.— 22 3: 
 
 tended to prove, of a man's having car- 
 nal intercourse with a woman without 
 her consent, while she was, as he knew, 
 wholly insensible, so as to be incapable 
 of consenting, and with such force as was 
 necessary to accomplish the purpose, was 
 rape." Com. v. Burke, 105 Mass. 376. 
 
 So the inducing a woman, by misrepre- 
 sentation, fraud, and falsehood, to go to 
 the house where she was defiled, although 
 no force was used to take her there, is 
 within the provision of the New York 
 statute (2 R. S. 664, § 25) declaring the 
 punishment for the offense of taking a 
 • 'woman unlawfully, against her will, with 
 the intent to compel her by force, menace, 
 or duress to be defiled." Beyer v. 
 People, 86 N. Y. 369. 
 
 Against the Form of the Statute. — Tech- 
 nical words which must be used in fram 
 ing an indictment for a breach of the 
 statute complained of. 
 
 If one statute subjects an act to a pe- 
 cuniary penalty, and a subsequent statute 
 makes it a felony, an indictment for the 
 felony concluding "against the form of 
 the statute " (in the singular number only) 
 is right. Rex v. Pim, English Crown 
 Cases, Russ. & Ry. 424. 
 
 Where, in trover by the assignees of a 
 bankrupt, the defendant pleaded that be- 
 fore the bankruptcy he advanced the 
 bankrupt a sum of money upon the de- 
 posit of the goods in respect of which the 
 action was brought, and the assignees 
 filed a replication that it was corruptly 
 and "against the form of the statute," 
 and agreed between the defendant and 
 the bankrupt that the latter should pay 
 the defendant for the loan of the money 
 £,\o per cent, it was held, on a special de- 
 murrer, that the averment of the contract 
 being against the form of the statute was 
 not a sufficient allegation that it was ille- 
 gal; and that the replication should have 
 alleged what particular statute it was in 
 contravention of. Jurquand v. Mose- 
 don, 7 M. & W. 504. 
 
 In an action upon the case for infringe- 
 ment of copyright, although the court re- 
 fused to allow a count founded on a com- 
 mrn-law-right to be joined with counts 
 under a statute upon the same cause of 
 action, it was held, that, notwithstanding 
 the words "against the form of the stat- 
 ute" in counts framed upon the statute, 
 a plaintiff might give in evidence, under 
 those counts, an infringement of his 
 common-law right. Boozey v. Jolkien, 
 5 C. B. 476. 
 
 Against the Peace of the State. — An in- 
 dictment in Wisconsin which does not 
 
Against Law, 
 
 AGAINST— AGE. 
 
 Definition. 
 
 AGE. (See also Infancy.) 
 
 It signifies in the law those periods in the lives of persons of 
 both sexe'' which enable them to do certain acts which, before, they 
 had arrivi^.d at those periods, they were prohibited from doing. 
 As, for example, a male at the age of twelve years may take the 
 oath of allegiance ; at fourteen, which is his age of discretion, he 
 may consent to marriage or choose his guardian ; and at twenty- 
 one he may alien his lands, goods, and chattels. A female at nine 
 years of age is dowable ; at twelve may consent to marriage ; at 
 fourteen is at years of discretion, and may choose a guardian ; 
 and at twenty-one may alien her lands, etc. But the full age of 
 either male or female is twenty-one, until which time they are 
 considered as infants.^ 
 
 conclude " against the peace and dignity 
 of the State" (as required by sec. 17, art. 
 7 of the constitution) is bad; and the 
 words "against the peace of the State of 
 Wisconsin" are not sufficient. 
 
 Against Law — Where it appears that 
 the jury, in rendering their verdict, must 
 either have disregarded the law as given 
 in the instructions of the court, or else 
 have found a fact wholly contrary to the 
 evidence, the verdict is "against law." 
 Sweeney v. C, P. R. Co., 57 Cal. 15. 
 
 Whatever else may be meant by the 
 expression "decision against law," we 
 think that there is no doubt that it in- 
 cludes a case where the decision is based 
 upon findings which do not determine all 
 of the material issues of fact raised by 
 the pleadings. Knight v. Roche, 56 Cal. 
 18. 
 
 When a court draws erroneous conclu- 
 sions of law from its finding of facts, it 
 is a " decision against law," for which a 
 new trial should be granted imder subdi- 
 vision 6 of § 657 of the Code of Civil 
 Procedure. Simmons v. Hamilton, 56 
 Cal. 493. 
 
 A verdict of a jury in obedience to the 
 instructions of the court upon a point of 
 law is a verdict "against law" within 
 the ineaning of subdivision 6, sec. 193, 
 of the Practice Act, and for that reason 
 should be set aside without further con- 
 sideration. 
 
 To this Crockett, J., dissented on the 
 ground that when it is apparent that the 
 instruction disregarded by the jury was 
 erroneous, and the verdict is in other re- 
 spects proper, and no injury has been 
 done the party or can result from the er- 
 ror complained of, the verdict should not 
 be set aside as "against law." Emerson 
 V. County of Santa Clara, 40 Cal. 545. 
 
 In the Extradition Act of 1870 (33 and 
 34 Vict. (,. 52), which enumerated as ex- 
 tradition crimes "crimes by bankrupts 
 
 against bankruptcy law,'' no mention was 
 made of accessories; and in 1873 it was 
 held that this could not be extended to 
 complicity by a person not himself a 
 bankrupt in a fraudulent bankruptcy. In 
 r^Counhaye, L. R. 8 Q. B. 410. 
 
 Subsequently the act of 1873 authorized 
 that indictable offences under the laws 
 for the time being in force in relation to 
 bankruptcy might be made the subject 
 of extradition treaties. By such a treaty, 
 among other crimes for which extradi- 
 tion was to be granted were "crimes 
 against bankruptcy law;" and in 1878 
 a warrant for the apprehension of a fu- 
 gitive criminal by virtue of such a treaty 
 which descrilped the offence as " the com- 
 mission of crimes agaitist bankru{)tcy 
 law" within the jurisdiction of the for- 
 eign power demanding the extradition 
 was held good. Ex parte Terraz, L. R. 
 4 Exchequer D. 63. 
 
 The words "any crime or offence 
 against the laws of China," in the provi- 
 sion of the Hong Kong ordinance No. 2 
 of 1850, must be limited to those ordinary 
 crimes and offences which are punished 
 by the laws of all nations, and which are 
 not peculiar to the laws of China. Attor- 
 ney-General V. Kwok-A-Sing, L. R. 5 
 Privy Council Ap. 179. 
 
 1. Brown's Law Diet. (Sprague's Ed.); 
 Bouvier's Law Diet. ; Co. Litt. 78. 
 
 A female under ten years of age is 
 incapable at common law of giving her 
 consent to an act of carnal knowledge. 
 Moore If. State, 17 Ohio St. 521; Com. 
 V. Roosnell, 8 N. East. Repr. (Mass.) 
 747. This principle has been clearly 
 maintained with reference to kidnapping 
 children and removing young slaves. 
 Com. V. Nickerson, 5 Allen (Mass ), 518; 
 Com. V, Taylor, 3 Mete. (Mass.) 72; 
 Com. V. Aves, 18 Pick. (Mass.) 193; Com. 
 V. Roosnell, 8 N. East. Repr. (Mass.) 
 747; Stale V. Rollins, 8 N. H. 550; Statt 
 
 336 
 
Computation of Age, 
 
 ACE. 
 
 In Criminal Lav. 
 
 Computation of Age. — The age of twenty-one years is complete 
 on the first moment of the' last day next before the twenty-first 
 anniversary of the birth. ^ 
 
 In Criminal Law. — No act done by any person under seven years 
 of age is a crime. Nor is an act done by any person over seven 
 and under fourteen years of age a crime, unless it be shown 
 affirmatively that such person had sufficient capacity to know 
 that the act was wrong.* In some States, 
 
 the age under which a 
 
 V. Farrar, 41 N. H. 53; also in cases of confined; and that on his return on that 
 
 indecent assaults. People v. McDonald, 
 9 Mich. 150; Hays v. People, i Hill 
 (N. Y.), 351; Singer v. People. 13 Hun 
 (N. Y.), 418: State v. Dancy. 83 N. Car. 
 608; State V. Johnston, 76 N. Car. 209. 
 See Givens v. Com. 29 Grat. (Va.) 830; 
 The Queen v. Dee, L. R. 14 Ir. 468. 
 
 It is at the age of puberty, and not at 
 the age of majority, that a female ceases 
 to be a "child" and becomes a "wo- 
 man," within the meaning of a statute 
 defining the crime of rape. Blackburn 
 V. State, 22 Ohio St. 102. 
 
 Evidence. — The age must be proved by 
 sworn testimony. Neither the court nor 
 the jury can judge from the appearance 
 of the child. Stephenson v. State, 28 
 Ind. 272. Compare State v. Arnold, 13 
 Ired. (N. Car ) 184. 
 
 The N. Y. Penal Code, § 19, provides: 
 Whenever in any legal proceeding it be- 
 comes necessary to determine the age of 
 a child, the child may be produced for 
 persona!! inspection, to enable the magis- 
 trate, court, or jury to determine the age 
 thereby; and the court or magistrate may 
 direct an examination by one or more 
 physicians, whose opinjon shall also be 
 competent evidence upon the question of 
 age. 
 
 A statement in a will of the date of a 
 person's birth \s prima-facie evidence of 
 his age. VuUiamy v. Haskisson, 3 Y. & 
 C. 80. 
 
 But evidence of reputation is inadmis- 
 sible to prove a person's age. Colclough 
 ». Smyili, 15 Ir. Ch. 347; 10 L. T. N. S. 
 918 
 
 Family discussion as to birthday, and 
 acts done on the reputed day, are evi- 
 dence forlhe jury as to the age of an infant 
 prosecutrix on whom a rape is charged 
 to have been committed. R. v. Hayes, 
 2 Cox C. C. 226. 
 
 A prisoner was charged with carnally 
 abusing a child under ten. on February 
 5, 1832. To prove the child under ten 
 years, an examined copy of the register 
 of her baptism on February 9, 1822, was 
 put in, and her father stated that he' left 
 his house about a week before the gth of 
 February, 1832, his wife Aot being then 
 
 day he found this child, and was told by 
 his wife's mother that it had been born 
 on the day before. Held, that this was- 
 not sufiicient evidence of the child's being; 
 under ten years. R. -u. Wedge, 5 C. & 
 P. 298. 
 
 A mother stated that a child was ten 
 years old last March, but on cross-exami- 
 nation her evidence as to the knowledge 
 of her children's ages seemed by no 
 means clear. The evidence, though ob- 
 jected to as too unsatisfactory to leave 
 to the jury on a charge of carnally know- 
 ing and abusing a girl under the age of 
 twelve, was submitted to the jury, who 
 found that the girl was under twelve, and 
 convicted the prisoner of the charge. 
 Held, that the conviction must be af- 
 firmed. R. V, Nicholls, 10 Cox C. C. 
 476. 
 
 1. I Black. Com. 464; State v. Clark, 
 
 3 Harr. (Del.) 557; Hamlin v. Stevenson, 
 
 4 Dana (Ky.), 597; Wells v. Wells, 6 
 Ind. 447. 
 
 A person attains his twenty-fifth year 
 when he becomes twenty-four. Grant 
 V. Grant, 4 Y. & C. 256. 
 
 2. State V. Fowler, 52 Iowa, 103; State 
 V. Aaron, i South. (N. J.) 231; s. c, 7 
 Am. Dec. 592; Willet v. Commonwealth, 
 13 Bush (Ky.). 230; Com. v. Mead, 
 10 Allen (Mass.), 398; State*. Doherty, 2 
 Overt. (Tenn.) 80; Godfrey v. State, 31 
 Ala. 323; State v. Learnard, 41 Vt. 585;: 
 Walker's Case, 5 C. H. R. (N. Y.) 137. 
 
 Mr. Russell says (Russ. on Crimes, gth 
 Am. Ed.): "With regard to capital crimes, 
 the law is minute and circumspect; dis- 
 tinguishing with great nicety the several 
 degrees of age and discretion; though- 
 the capacity of doing ill or contracting 
 guilt is not so much measured by years- 
 and days as by the strength of the 
 delinquent's understanding and judg- 
 ment. 4 Black. Com. 23. But within 
 the age of seven years an infant 
 cannot be punished for any capital of- 
 fence, whatever circumstances of a mis- 
 chievous discretion may appear; for, ex- 
 presumptione juris , SMcti 2in infant cannot 
 have discretion; and against this pre- 
 sumption no averment shall be admittedi"" 
 
 337 
 
In Criminal Law. 
 
 AGE. 
 
 In Criminal La^. 
 
 person is incapable of committing a crime has by statute been 
 extended to an age beyond seven years. 
 
 I Hale 27, 28; I Hawk. t. i, s. I, note(i); 
 4 Black. Com. 23. A pardon was granted 
 to an infant within the age of seven 
 years, who was indicted for homicide, the 
 jury having found that he did the act be- 
 fore he was seven years old. i Hale, 27 
 (edit. 1800), note e. 
 
 On a charge of homicide against an 
 infant a little more than eleven" years 
 old, the legal presumption being that he 
 was incapable of committing any crime, 
 it devolves on the prosecution to make 
 strong and clear proof of capacity before 
 a, conviction can be had, and without 
 such proof a judgment of conviction will 
 Tje reversed. Angelo v. People, g6 111. 
 209; s. c, 36 Am. Rep. 132. See Com. 
 ■v. French, Thatcher's Cr. Cas. (Mass.) 
 163; Com. 11. Elliott, 4 Boston L. R. 329. 
 
 It is not necessary that such proof be 
 made by direct and positive testimony. 
 Wusnig 'u. Slate, 33 Tex. 651. But on 
 confessions alone, an infant under twelve 
 years of age cannot be convicted of mur- 
 der. State V. Aaron, i South. (N. J.) 231 ; 
 s. c, 7 Am. Dec. 592. See McCoon v. 
 Smith, 3 Hill (N. Y.), 147; State v. Bos- 
 tick. 4 Harr. (Del.) 563. Compare State 
 ■V. Guild, 5 Halst. (N. J.) 163., 
 
 Where the defence is, that the prisoner 
 is under the age of presumed capacity, 
 ihe burden of proof is on the prisoner. 
 State V. Arnold, 13 Ired. (N. Car.) 184. 
 
 A person under thirteen years of age, 
 unless discretion is proved, is not guilty 
 of larceny. Gardiner v. State, 33 Tex. 
 692. See People v. Davis, i Wheel. C. C. 
 (N. Y.) 230; nor of assault and battery. 
 State V. Going, 9 Humph. (Tenn.) 175. 
 Compare Sikes v. Johnson, 16 Mass. 389; 
 Bullock V. Babcock, 3 Wend. (N. Y.) 391. 
 
 An infant between the ages of seven 
 and fourteen is presumed to be incapable 
 of committing crime, and the onus is on 
 the State to prove his criminal capacity. 
 State V. Adams. 76 Mo. 355; State v. 
 Tice, I S. W. Repr. (Mo.) 269. 
 
 An infant of fourteen years is pre- 
 sumed incapable of committing rape, but 
 this presumption may be rebutted 1 j 
 proof, of puberty. Williams v. State, 14 
 Ohio, 222. See Hiltabiddle v. State, 35 
 Ohio St. 52. Compare Com. v. Green, 2 
 Pick. (Mass.) 380; State v. Sam, I Win. 
 (N. Car.) 300; State v. Pugh, 7 Jones 
 (N. Car.), 61 ; People v. Randolph, 2 
 Park. Cr. (N.Y.) 174- 
 
 A boy over fourteen years of age will 
 be presumed capable of committing rape. 
 State V. Handy, 4 Harr. (Del.) 566. But 
 contra, if under fourteen years of age. 
 
 Winst. (N. Car.) 300. See People v. Ran- 
 dolph, 2 Park Cr. (N. Y.) 174. 
 
 A boy under fourteen years of age, 
 who assists another person in an attempt 
 to commit a rape, may be punished the 
 same as the principal, in the first degree, 
 if it appear, under all the circumstances 
 of the case, that he had a " mischievous 
 discretion." The fact that a boy eleven 
 years and eleven months old, of "aver- 
 age capacity" for his age, put his hand 
 over the mouth of a female whilst his 
 elder brother attempted to commit a rape 
 upon her, is not sufficient of itself for his 
 conviction as principal in the second de- 
 gree of the felony of which his elder 
 brother had been convicted. Law v. 
 Commonwealth, 75 Va. 885; s. t., 40 
 Am. Rep. 750. 
 
 A boy of fourteen years of age was 
 indicted for selling liquor. He did so 
 in the presence and by direction of his 
 mother. Held, that the child's legal ca- 
 pacity to commit crime must be estab- 
 lished as a distinct fact. Com. 71. Mead, 
 10 Allen (Mass.), 398. See People v. 
 Richmond, 29 Cal. 414; State v. Lear- 
 nard, 41 Vt.' 585. 
 
 The capacity of an ipfant under four- 
 teen years of age to commit the crime of 
 malicious trespass is a question to be de- 
 termined from the facts of the case; in- 
 dependent evidence of such capacity is not 
 essential. State z/. Toney, 15 S. Car. 409. 
 
 A boy about twelve years of age was 
 convicted of perjury. The trial judge 
 gave no instruction as to the effect of his 
 age on the crime. Held error. Willet v. 
 Commonwealth, 13 Bush (Ky.), 230. 
 
 In an action for rape or carnal know- 
 ledge of a child under twelve, against a 
 boy under fourteen, the failure of the 
 trial court to direct the jury to consider 
 the question whether or not the boy had 
 at the time discretion and mind enough 
 to know the wrongful character of the 
 act is ground for a new trial. Heilraan v. 
 Commonwealth, i. S. West n. Rep'r. 
 (Ky.) 731. 
 
 On the trial of a boy of fourteen years 
 of age for breaking in a store, an instruc- 
 tion which tells the jury that if appellant 
 broke into the store, as alleged, but did 
 so at the request of another, and, in con- 
 sequence of youth or mental infirmity, he 
 did not understand the character of the 
 act he was committing, they should find 
 for defendant, should have been given. 
 McClure v. Commonwealth, 8: Ky. 448. 
 
 The evidence of malice, which is to 
 supply age, must be clear and strong 
 
 328 
 
Ill Criminal Law. 
 
 AGE. 
 
 In Criminal Law, 
 
 An infant is liable criminally for obtaining goods by false pre- 
 
 beyond all doubt and contradiction. Law 
 V. Commonwealth, 75 Va. 885; s. c, 40 
 Am. Rep. 750. 
 
 An infant under the age of seven years 
 cannot be guilty of felony; and there- 
 fore a defendant cannot justify taking 
 such an infant into custody and taking 
 him before a magistrate upon the ground 
 that he had been caught stealing a piece 
 of wood. Marsh v. Loader, 14 C. B. 
 (N. S.) 535- 
 
 On the attainment of fourteen years of 
 age, the criminal actions of infants are 
 subject to the same modes of construc- 
 tion as those of the rest of society; for 
 the law presumes them at those years to 
 be doli capaces, and able to discern be- 
 tween good and evil, and therefore sub- 
 jects them to capital punishments as 
 much as if they were of full age. Dr. & 
 Stu. c. 26; Co. Lit. 79, 171. 274; Dalt. 
 47&, 505; I Hale, 25; Bac. Abr, Inf. A. 
 & H. But during the interval between 
 fourteen years and seven, an infant shall 
 be /nwaya^zV deemed to be doliincapax, 
 and presumed to be unacquainted with 
 guilt; yet this presumption will diminish 
 with the advance of the offender's years, 
 and will depend upon the particular facts 
 and circumstances of his case. The evi- 
 dence of malice, however, which is to 
 supply age, should be strong and clear 
 beyond all doubt and contradiction ; but 
 if it appear to the court and jury that the 
 offender was doli capax, and could dis- 
 cern between good and evil, he may be 
 convicted, and suffer death. I Hale, 25, 
 27:4 Black. Com. 23. Thus, it is said that 
 an infant of eight years old may be guilty 
 of murder, and shall be hanged for it. 
 Dalt. Just. c. 147. And where an infant 
 between eight and nine years old was in- 
 dicted, and found guilty of burning two 
 barns, and it appeared, upon examina- 
 tion, that he had malice, revenge, craft, 
 and cunning, he had judgment to be 
 hanged, and was executed accordingly. 
 Dean's case, I Hale, 25 note («). 
 
 An infant of the age of nine years, 
 having killed an infant of the like age, 
 confessed the felony; and, upon exami- 
 nation, it was found that he hid the blood 
 and the body. The justices held that he 
 ought to be hanged; but they respited 
 the execution that he might have a par- 
 don. I Hale, 27; F. Corone, 57; B. Co- 
 rone, 133. Another infant, of the age of 
 ten years, who had killed his companion 
 and hid himself, was, however, actually 
 hanged; upon the ground that it appeared 
 by his hiding that he could discern 
 between good and evil; and ntnlitia 
 supplet atatem. Spigurnal's Case, I Hale, 
 
 26; Fitz. Rep. Corone, 118. And a girl of 
 thirteen was burnt for killing her mis- 
 tress. Alice de Waldborough's Case, i 
 Hale, 26. Whenever a person under the 
 age of fourteen is charged with commit- 
 ting a felony, the proper course is to 
 leave the case to the jury to say whether. 
 at the time of committing the offence, 
 such person had guilty knowledge that 
 he was doing wrong. R. v. Owen, 4 C. 
 & P. 236; R. V. Smith, i Cox C. C. 260; 
 R. Tj. Vanplew, 3 F. & F. 520. 
 
 In the case of rape, the law presumes 
 that an infant under the age of fourteen 
 years is unable to commit the crime, 
 and therefore he cannot be guilty of it, 
 R. V. Groombridge, 7 C. & P. 582. So, 
 also, for the like reason, such an infant 
 cannot be guilty of an assault with in- 
 tent to commit a rape. R. v. Eldershaw, 
 3 C. & P. 396; R. -v. Philips, 8 C. & P. 
 736. Or of carnally knowing a girl under 
 ten years of age, R. v. Jordan, 9 C. & 
 P. 118. And this presumption cannot be 
 rebutted, and evidence is not admissible 
 to prove that the infant is in fact compe- 
 tent to commit any such offence. R. v. 
 Philips, and R. v. Jordan, supra. But 
 this presumption is upon the ground of 
 impotency rather than the warit of dis- 
 cretion; for he may be a principal in the 
 second degree, as aiding and assisting in 
 this offence as well as in other felonies, 
 if it appear by sufficient circumstances 
 that he had a mischievous discretion. I 
 Hale, 630. 
 
 In 1748, W. York, a boy of ten years 
 of age, was convicted for the murder of a 
 girl of about five years of age; but 
 Willes, C. J., out of regard to the tender 
 years of the prisoner, respited execution 
 till he could take the opinion of the rest 
 of the judges, whether it was proper to 
 execute him or not. 
 
 The boy and girl were parish children, 
 under the care of a parishioner; and on 
 the day of the murder he and his wife 
 went out to their work, and left the chil- 
 dren in bed together. When they re- 
 turned the girl was missing, and the boy 
 being asked what was become of her, 
 answered that he had helped her up and 
 put on her clothes, and she had gone he 
 knew not whither. Upon this, strict 
 search was made for the child. During 
 this search, the man observed that aheap 
 of dung near the house had been newly 
 turned up; and, upon removing the upper 
 part of the heap, he found the body of the 
 child about a foot's depth under the sur- 
 face, cut and mangled in a most barbarous 
 and horrid manner. Upon this discov- 
 ery, the boy, who .was the only person 
 
 829 
 
In Criminal Law. 
 
 AGJi. 
 
 In Criminal Law, 
 
 tences.^ An infant of tender years Upon whose lands a nuisance 
 is erected cannot be made criminally answerable for it.* (See 
 also Infancy.) 
 
 -capable of committing the fact, tiiat was 
 left home with the child, was charged 
 with the fact, which he stifHy denied. 
 "When the coroner's jury met, the boy 
 •was again charged, but persisted still to 
 deny the fact. At length, being closely 
 interrogated, he fell to crying, and said 
 he would tell the whole truth. He then 
 said that the child had been used to foul 
 herself in bed; that she did so that morn- 
 ing (which was not true, for the bed was 
 searched and found to be clean), that 
 thereupon he took her out of the bed and 
 carried her to the dung-heap, and with a 
 large knife which he found about the 
 house, cut her in the manner the body 
 appeared to be mangled, and buried her 
 in the dung-heap; placing the dung and 
 straw that was bloody under the body, 
 and covering it up with what was clean; 
 and having so done, he got water and 
 washed himself as clean as he could. 
 The boy was the next morning carried 
 before a neighboring justice of the peace, 
 before whom he repeated his confession, 
 with all the circumstances he had related 
 to the coroner and his jury. The justice 
 of the peace very prudently deferred pro- 
 ceeding to a commitment until the boy 
 should have an opportuity of recollecting 
 himself. Accordingly he warned him of 
 the danger he was in if he should be 
 thought guilty of the fact he stood charged 
 with, and admonished him not to 
 wrong himself; and then ordered him into 
 a room where none of the crowd that at- 
 tended should have access to him. When 
 the boy had been some hours in this room, 
 where victuals and drink were provided for 
 liim, he was brought a second time before 
 the justice, and then he repeated his 
 iormer confession, upon which he was 
 ■committed to jail. On the trial, evi- 
 dence was given of the declarations be- 
 fore mentioned to have been made before 
 the coroner and his jury, and before the 
 justice of the peace; and of many declara- 
 tions to the same purpose which the boy 
 made to other people after he came to 
 jail, and even down to the day of his 
 trial; for he constantly told the same 
 story in substance, commonly adding 
 that the devil put him upon committing 
 the fact. Upon this evidence, with some 
 Other circumstances tending to corrobo- 
 rate the confessions, he was convicted. 
 The judges having taken time to consider 
 this report, unanimously agreed: I. That 
 the declarations staled in the report were 
 evidence proper to be left to the jury. 
 2. That supposing the boy to have been 
 
 guilty of this fact, there were so many 
 circumstances stated in the report which 
 were undoubtedly tokens of what Lord 
 Hale calls a mischievous discretion that 
 he was certainly a proper subject for 
 capital punishment, and ought to suffer; 
 for it would be of very dangerous conse- 
 quence to have it thought that children 
 may commit such atrocious crimes with 
 impunity. That there are many crimes 
 of the most heinous nature, such as (in 
 the present case) the murder of young 
 children, poisoning parents or masters, 
 burning houses, etc., which children are 
 very capable of committing; and which 
 they may in some circumstances be under 
 strong temptations to commit; and there- 
 fore, though the taking away the life of 
 a boy of ten years old might savor of 
 cruelty, yet, as the example of that boy's 
 punishment might be a. means of deter- 
 ring other children from the like offences, 
 and as the sparing the boy, merely on 
 account of his age, would probably have 
 a quite contrary tendency, in justice to 
 the public, the law ought to take its 
 course; unless there remained any doubt 
 touching his guilt. In this general prin- 
 ciple all the judges concurred ; but two 
 or three of them, out of great tenderness 
 and caution, advised the chief judge to 
 send another reprieve for the prisoner; 
 suggesting that it might possibly appear, 
 on further inquiry, that the boy had 
 taken this matter upon himself at the 
 instigation of some person or other, who 
 hoped by this artifice to screen the real 
 offender from justice. Accordingly the 
 chief justice granted one or two more re- 
 prieves; and desired the justice of the 
 peace who took the boy's examination, 
 and also seme other persons, in whose 
 prudence he could confide, to make the 
 strictest inquiry they could into the affair, 
 and report to him. At length he, re- 
 ceiving no further light, determined to 
 send no more reprieves, and to leave 
 the prisoner to the justice of the law at 
 the expiration of the last; but, before the 
 expiration of that reprieve, execution 
 was respited till further order by war- 
 rant from one of the secretaries of state; 
 and at fhe summer assizes, 1757, the 
 prisoner had the benefit of His Majesty's 
 pardon, upon condition of his entering 
 immediately into the sea service. York's 
 case, Fost. 70 ei seq. 
 
 1. People w. Kendall, 25 Wend. (N.Y.) 
 
 2. People V, Townsend, 3 Hill (N. Y.) 
 
 479- 
 
 330 
 
AGENCY. 
 
 AGENCY. (See also Attorneys ; Auctioneers ; Brokers ; 
 Collection Agencies ; Commercial Agents or Drummers; 
 Commission Merchants or Factors; Corporations; Muni- 
 cipal Corporations; Power of Attorney; Shipmasters.) 
 Definition, 333. Duties of Agents — Continued. 
 
 Who may be Principal, 333. To Act in Person, 368. 
 
 Legally Incompetent : Infants, Mar- Power of Substitution, 369. 
 
 ried Women, Aliens, 333 
 Naturally Incompetent : Lunatics, 
 
 Idiots, Drunkards, 334. 
 Corporations, 334. 
 Joint Principals, 334. 
 Who may be Agents, 334. 
 Adverse Interests Disqualify, 335. 
 Joint Agents, 335. 
 Ai^pointment, 336. 
 Form of, 336 
 When under Seal, 337. 
 By Corporations, 338. 
 When by Parol, 339. 
 By Implication, 340 . 
 Implied by Scope of Employment, 341 . 
 Implied by Former Employment, 342. 
 By Direct Instructions, 343. 
 Must be Distinct, 344. 
 Parties Bound by Implication, 345. 
 Limited by Usage, 347. 
 Classes of Agents, 347. 
 General and Special Agents, 348. 
 Universal Agents, 349. 
 Houi Principal Bound by Acts of 
 
 General Agent, 350. 
 How by Acts of Special Agent, 351. 
 Instances : 
 
 Power to Sell — to Collect, 355. 
 
 Power to Collect, 357. 
 
 Power to Sell— to Warrant, 358. 
 
 Agent to Sell may Rescind Sale,'^^(), 
 
 Power to ^ell— Miscellaneous Re- 
 strictions, 359. 
 
 Miscellaneous Powers — Restric- 
 tions, 362. 
 
 Power to Sell or Issue Negotiable 
 Paper, 362. 
 
 Power to Conduct Business, 363. 
 
 Power to Employ, 364. 
 
 Power to Provide Surgical Aid, 
 
 364- 
 Power to Manage Property, 365. 
 Power to Control Real Estate, 366. 
 Power to Use Principal' s Credit, 
 
 366. 
 Power to Loan and Borrow, 366. 
 Power to Mortgage, 366. 
 Power to Settle, 367. 
 Power to Perform Contracts, 367. 
 Duties of Agents. 368. 
 
 To Perform Duties Undertaken, 368. 
 To Act in Name of Prihcipal, 368. 
 
 331 
 
 To Obey Instructions, 369. 
 
 To Conform to Usage, 371. 
 
 To Use Or dietary Skill, 371. 
 
 To Make f fill Disclosure of Adverse 
 Interest, yj2. - 
 
 Same Rule as to Officers of Corpora- 
 tions, 373. 
 
 Fiduciary Relations, 375. 
 
 Purchasing Agent may not Buy his 
 own Property, 375. 
 
 Selling Agent cannot Buy himself, 
 
 375- 
 
 But may Buy direct from Principal, 
 376. 
 
 Agent to Buy may not Buy for him- 
 self. 378. 
 
 All Profits belong to Principal, 379. 
 
 Cannot Act for both Parties, 380. 
 
 Except by Consent, 381. 
 
 After Termination of Agency, 382. 
 
 Must Render Full Accounts, 382. 
 
 And Keep Regular Accounts, 383. 
 
 Demand Necessary, 383. 
 
 Interest on Accounts, 384. 
 
 To Keep Goods of Principal Separate 
 from his Own, 384. 
 Signatures of Agents, 385. 
 
 Instruments under Seal, 385. 
 
 Signed and Sealed in Name of Pri?t- 
 cipal, 386. 
 
 Intention appearing on Face of In- 
 strument, 387. 
 
 Intention not appearing, 387. 
 
 Bills and Notes, 388. 
 
 Name of Principal appearing on 
 Face of Instrument, 389. 
 
 Corporate Seal on Instrument, 390. 
 
 Agents in the Habit of Signing Ne- 
 gotiable Paper, 390. 
 
 Ambiguous Instruments, 391. 
 
 Credit of Parties whose Names ap- 
 pear, 391. 
 
 Simple Contracts, 392. 
 
 Agent must Sign his Name also, 393. 
 Sub-agents, 394. 
 
 How are Agents Liable for Acts of 
 Sub-agents, 394. 
 
 Public Agents not Liable for Acts of 
 Sub-agents. 395. 
 
 Must Account to Immediate Princi- 
 pal, 395. 
 
 Look to him for Compensation, 395. 
 
AGENCY. 
 
 Duties of Principal to Agent, 
 
 Compensation of Agent, 396. [396. 
 
 Salary or Coi7imission, 396. 
 
 Del Credere Commission, 396. 
 
 May be Fixed by Jury, yyj. 
 
 After Termination of Agency, yyj. 
 
 For Illegal Services, 397. 
 
 When not Entitled to, 397. 
 
 flow when Agency Prematurely 
 Ended, 399. 
 
 Agent must be Indemnified for Ex- 
 penses, 3O9. 
 Liabilities of Agent to Third 
 Parties, 401. 
 
 Not Personally Liable when Acting 
 in Name of Principal, 401. 
 
 Liable when Acting in his own 
 Name, 402. 
 
 Liable when he Pledges his own 
 Credit, 403. 
 
 Public Officers not Personally Liable, 
 404. 
 
 Agents for Foreign Principals, 404. 
 
 How for Mispatd Money, 405. 
 
 Liable when Contract only effective 
 in Agent's Name, 406. 
 
 Not Liable for Negligence, 406. 
 
 Liable for Misfeasance, 407. 
 
 Liable when in full Control of Work 
 done, 407. 
 
 Liable for Fraud and Malice, 407. 
 
 When in Control of Work Liable 
 for Torts of Employees, 408. 
 Rights of Agents against"Third 
 Parties, 408. 
 
 Can Sue when Acting in Principal's 
 Name, 408. 
 
 Not when Acting in his own Name, 
 409. 
 
 How when it is Doubtful who Con- 
 tracted, 409. 
 
 Ca7i Sue when he has an Interest, 
 410. 
 Liabilities to Thirid Parties, 410. 
 
 Liable for all Acts of Agent, 410. 
 
 The Existence of Agency must be 
 Proved, 415. 
 
 Principal Liable when Agent Ex- 
 ceeds Authority, 41 5. 
 
 And when he Contracts in his own 
 Name, 415. 
 
 Not Liable when Exclusive Credit 
 given to Agent, 416. 
 
 Liable for Fraud and Deceit of 
 Agent, 417. 
 
 When Committed in Course of Em- 
 ployment, 418. 
 
 Liable for Negligence of Agent, 419. 
 Notice to Agent is Notice to 
 Principal, 419. 
 
 Notice to Agent is Notice to 
 Principal — Continued, 
 
 Also in Case of Corporations, 42 1 . 
 
 To whom Notice must be Given for 
 a Corporation, 422. 
 
 When Notice must have been Re- 
 ceived by Agent, 422. 
 
 Not if A!(eni Colludes with Third 
 Party, 423. 
 Rights of Principals against 
 Third Parties, 423. 
 
 May Sue on Contracts of Agents, 423. 
 
 His Right is Modified by Represen- 
 tations of Agent, 425. 
 
 Subject to Equities where Agent has 
 Contracted in his own Name, 425. 
 
 May Recover Money Mispaid by 
 Agent, 427. 
 
 May Follow his Property, 427. 
 
 May Sue for Torts, 428. 
 Rights of Agent against Prin- 
 cipal, 428. 
 
 Right to Lien, 428. 
 
 Does not Impair Right to Sue, 429. 
 Ratification, 429. 
 
 Has same Effect as Original Au- 
 thority, 429. 
 
 Only Voidable Acts can be Ratified, 
 
 430- 
 
 Act must be done in Name of Prin- 
 cipal, 431. 
 
 Principal must be in Existence 
 when Act done, 432^ 
 
 Must have Knowledge of all Facts, 
 
 432- 
 
 Must be Capable of Ratifying, 433. 
 
 Disavowal does not Prevent Subse- 
 quent Ratification, 434. 
 
 Acts of Public Officers can be Rati- 
 fied, 434. , 
 
 Ratification of Torts, 434. 
 
 Ratification cannot be Retracted, 434. 
 
 Cannot be in Part of Transaction, 
 
 434- 
 
 Ratification after Termination of 
 Agency, 435. 
 
 Form, of Ratification, /yi^. • 
 
 Mjtst Refer to Precise Act, 436. 
 
 May be Implied, /\.2i'J. 
 
 Clear Intention must be Shown, 438. 
 
 May be Implied from Form of Ac- 
 • tion, 439. 
 
 Acts not Promptly Disavowed are 
 Ratified. 439. ' 
 
 Principal must have full Knowledge 
 of Facts, 441. 
 
 Acts must have been Done under Ap- 
 pointment, 442. 
 
 Slight Evidence of Ratification some- 
 times Sufficient, 442. 
 
 833 
 
Definition. 
 
 AGENCY. 
 
 Who may be Principal. 
 
 Termination of Agency, 443. 
 
 By Agreement, 443. 
 
 By Act of Principal, 444. 
 
 Appointment under Seal Revoked by 
 Parol, 444. 
 
 Revocation may be Implied, 444. 
 
 By Act of Agent, 445. 
 
 Any Naked Power Revoked, 445. 
 
 But not when Coupled with an In- 
 terest, 445. 
 
 Interest must be in Subject-matter, 
 446. 
 
 Not when Conferred Jor a Consider- 
 ation, 446. 
 
 By Death of Principal, 446. 
 
 Termination of Agency — Con- 
 tinued. 
 
 When does Revocation by Death take 
 Effect, 44;?. 
 
 Revokes Power of Sub-agent, 447. 
 
 By Insanity of Principal, 447. 
 
 By Insanity of Agent, 448. 
 
 By Bankruptcy, 448. 
 
 By Marriage, 448. 
 
 By Dissolution of Partnership, 448. 
 
 Not by War, 448. 
 
 Revocation of Power of Agent Re- 
 vokes Power of Sub agent, 448. 
 
 Acts of Agent after Revocation, but 
 ■ before Notice Received, 448. 
 
 1. Definition. — An agent is a person duly authorized to act on 
 beiialf of anotlier, or one whose unauthorized act has been duly 
 ratified. 1 
 
 2. Who may be Principal. — It may be laid down generally that 
 any person sui juris, unless prohibited by law to which he is sub- 
 ject, may be a principal;** but persons who are neither naturally 
 nor legally sui juris are, as a rule, incompetent to act as princi- 
 pals and to appoint agents.* 
 
 Infants — Married Women — Aliens, are legally not sui juris and 
 are incompetent to appoint agents except as authorized by statute.* 
 
 1. Evans on Agency (Ewell's Ed.) i; 
 Sweet's Law Diet. 
 
 2. Evans on Agency (Ewell's Ed.), 11; 
 Story on Agency. § 5. 
 
 In general, it may be stated, as a rule 
 of the common law. that whenever a 
 person has a power, as owner or in his 
 own right, to do a thing he may do it by 
 an agent. Story on Agency, § 5. 
 
 A principal cannot confer on an agent 
 power to do that in his behalf which he 
 himself could not do if he were person- 
 ally present and acting for himself. Fer- 
 guson V. Morris, 67 Ala. 389. 
 
 3. Story on Agency, § 6 ; Evans on 
 Agency (Ewell's Ed.), 12. 
 
 4. Story on Agency, § 6. 
 A married woman is, as a rule, incapable 
 
 of appointing agents, except when em- 
 powered by statute to dispose of her 
 separate property. She can, however, 
 appoint her husband her agent. Walker 
 V. Carrington, 74 111. 446; Vailw. Meyer, 
 71 Ind. 159; GrifBn v Ransdell, 71 Ind. 
 4^0: McLaren v. Hall, 26 loiva, 297; 
 Jones V. Smith. 121 Mass. 15; Coolidge 
 V. Smith, I2g Mass. 554; Paine v. Farr, 
 iiS Mass. 74; Lavassar v. Washburne, 
 50 Wis. 200; Wright v. Hood, 49 Wis. 
 235; Ready v. Bragg, I Head (Tenn.), 
 511 ; Martin v. Rector, 4 N. East. Repr. 
 (N. Y.) 183; Wood V. Wood. 83 N. Y. 
 575; Bodine v. Killeen. 53 N. Y. 93 ; 
 Rowe V. Smith, 45 N. Y. 230; Draper v. 
 
 Stouvenel, 35 N. Y. 507 ; Knapp v. 
 Smith, 27 N. Y. 277; Frejberg v. Brani- 
 gan, 18 Huh (N. Y.), 344; Penn v. 
 Whiteheads, 12 Gratt. (Va.) 74; Manhat- 
 tan L. I. Co. v. Smith, 5 N. East. Repr. 
 /(Ohio) 417. 
 
 A married woman, owning an equitable 
 separate estate, may authorize her hus- 
 band to manage it as her general agent; 
 and the fact of such agency being clearly 
 'shown, the same incidents attach as in 
 the case of any other general agency, 
 and she is bound by his acts as any 
 other principal would be bound. Louis- 
 ville Coffin Co. V. Siokes, 78 Ala. 372. 
 
 A husband may be the agent of his 
 wife. The declarations of a party, made 
 at the time that she handed a deed to her 
 husband to deliver as her agent to tlie 
 grantee, are admissible in evidence as a 
 part of the res gestte. Harper v. Dail, 92 
 N. Car. 394. See also Husband akd 
 Wife. 
 
 Whether the appointment of an agent 
 by an infant is an act absolutely void or 
 one voidable is an unsettled question. 
 The weight of authority inclines to the 
 former proposition, as will be seen by the 
 following cases: Fetrow v. Wiseman, 40 
 Ind. 148; Trueblood v. Trueblood, 8 
 Ind. 195; s. c, 65 Am. Dec. 756: Waples 
 V. Hastings, 3 Harr. (Del.) 403; Carna- 
 han V. Alderdice. 4 Harr. (Del.) gg; Ben- 
 nett V. Davis, 6 Cow. (N. Y.) 393; Fonda 
 
 333 
 
"Who may be Principals. 
 
 AGENCY. 
 
 Who may be Agents, 
 
 Disabilities. — Persons naturally incompetent to appoint agents 
 -are lunatics, idiots, drunkards, etc. They are wholly incapable.'- 
 
 Corporations, being mere artificial creations, cannot act except 
 through the instrumentality of an agent or attorney. They there- 
 fore must be principals.** 
 
 Joint Principals. — Two or more parties who have an undivided 
 interest in the same matter may be joint principals. They must, 
 however, concur in the appointment of an agent. One cannot act 
 for the other except in the case of partnership matters.* 
 
 3. Who may be Agents. — Agents are not required to possess 
 1;he same qualifications as principals, and it maybe laid, down 
 as a general rule that all persons of sane mind are capable of be- 
 ■coming agents. Few persons, if any, are excluded from exercising 
 a naked authority to which they are delegated. Hence infants, 
 Jemes coverts, persons attainted, outlawed, .or excommunicated, 
 and aliens may be agents.* 
 
 t>. Van Home, 15 Wend. (N. Y.) 631; 
 2S. t., 30 Am Dec 77; Knox v. Flack, 22 
 Pa. St. 337 ; Armitage v. Widoe, 36 
 Mich. 124 ; Lawrence v. McArter, 10 
 Ohio, 37; Pyle v. Craven, 4 Liu. (Ky.) 
 17; Semple v. Morrison, 7 T. B. Mon. 
 <Ky.^ 29S: Dexter v. Hall, 15 Wall. (U. S.) 
 -9. See Vasse v. Smith, I Am. Lead. Cas. 
 .^43, note. 
 
 An infant cannot have an attorney in 
 fact ; a power of attorney executed by 
 liim being absolutely void. Glass v. 
 •Glass, 76 Ala. 368. 
 
 Judge Story, in his work on Agency, § 
 6. holds that the appointment is voidable. 
 He says:" "An infant may authorize 
 .another person to do any act which is for 
 -his benefit." See Whitney v. Dutch, 14 
 Mass. 457; s. c, 7 Am. Dec. 229; Tucker 
 -V. Moreland, 10 Pet. (U. S.) 58; Hastings 
 ■V. DoUarhide, 24 Cal. 195; Hardy v. 
 Waters, 38 Me. 450; Robinson v. Weeks, 
 56 Me. 102; Patterson v. Lippincott, 47 
 U. J. L. 457. 
 
 But he cannot where it is to his preju- 
 •dice. Lawrence v. McArter, 10 Ohio, 37; 
 Pyle V. Cravens,4 Litt. (Ky.) 18; Bennett 
 ■0. Davis, 6 Cow. (N. Y.) 393; Waples v. 
 Hastings, 3 Harr. (Del.) 403; Knox v. 
 Plack, 10 Harr. (Pa.) 337. 
 
 For an elaborate discussion of this 
 subject, see Ewell's Lead. Cas. on In- 
 fancy, 35, 44 et seq. See also Infancy. 
 
 1. Siory on Ag. § 6. 
 
 When one of the parties to a contract 
 is of, unsound mind, and the fact is un- 
 ■known to the other contracting party, no 
 advantage having been taken of the luna- 
 tic, this unsoundness of mind will not 
 vacate a contract, especially where the 
 -contract is not merely executory but ex- 
 ecuted in whole or in part, and the par- 
 
 ties cannot be restored to their original 
 position. Evans on Ag. (Ewell's Ed.) 13. 
 See Ewell's Lead. Cas. on Insanity, 1S4 
 et seq. 
 
 Where a principal, after appointing an 
 agent, became of unsound mind, -and the 
 power of the agent, being coupled with an 
 interest or given for a consideration, was 
 irrevocable, the insane person will still be 
 a principal. Matthieson Ref. Co. v. Mr- 
 Mahon, 38 N. J. L. 536. See Insane 
 Persons. 
 
 The contract of a man so drunk as not 
 to know what he is doing is voidable, but 
 may be ratified when he becomes sober. 
 Hamilton v. Grainger, 5 H. & N. 40; 
 Matthews v. Baxter, L. R. 8 Ex. 132. 
 
 2. Story on Agency, § 16. Atchison, 
 etc, R. Co. V. Reecher, 24 Kan. 228; 
 Home L. Ins. Co. v. Pierce, 75 111. 426; 
 McWilliams v. Detroit Central Mills Co., 
 31 Mich. 275. 
 
 The liability of a corporation for the 
 acts of one who, with its assent, has con- 
 trolled and sold its paper for his own 
 benefit, is no less than that of an indi- 
 vidual would be. Genesee Sav. Bank v. 
 Mich. Barge Co., 52 Mich. 164. See also 
 Corporations. 
 
 3. Story on Ag., §§ 39. 40. 
 
 4. Evans on Ag. (Ewell's Ed.), 13; 
 Story on Ag. § 7; Lyon v. Kent, 45 Ala'. 
 656. 
 
 An infant can be an agent. Brown v. 
 Hartford Ins. Co., 117 Mass. 479. Or a 
 wife for her husband. Lang v. Waters, 
 47 Ala. 624: Krebs v. O'Grady, 23 Ala. 
 726; s. c, 58 Am. Dec. 312; Hopkins v. 
 MoUinieux, 4 Wend. (N. Y.)465; Fenner 
 V. Lewis, ID Johns. (N. Y.) 38; Edgerton 
 V. Thomas, 9 N. Y. 40; Ga'usha v. Hitch- 
 cock, 29 Barb. (N. Y.) 193; Marselis v 
 
 334 
 
Who may be Agents. 
 
 AGENCY. 
 
 Joint Agents. 
 
 Adverse Interest. — The only disqualification which seems to 
 exist to prevent a person from becoming an agent is the fact 
 that he has interests adverse to those created by the agency ; 
 or that he has already an agency which is incompatible with the 
 new agency.i (See also DUTIES OF AGENT TO Principal, 
 infra.) , 
 
 Joint Agents. — Two or more parties may be appointed as 
 agents for the same matter ; their authority will be joint, and they 
 must act together, unless it is apparent from the appointment that 
 they may act severally or by majority.* 
 
 Seaman, 2i Barb. (N. Y.) 319; Goodwin 
 V. Kelly, 42 Barb. (N. Y.) 194; Rosen- 
 thal V. Mayhugh, 33 Ohio St. 155; White 
 V. Oeland, 12 Rich. L. (S. Car.) 308; 
 Nelson w.' Garey, 114 Mass. 418; Meader 
 V. Page, 39 Vt. 306; Sawyer v. Cutting, 
 23Vt.486; Felkerz/. Emerson, i6Vt.653; 
 s. c, 42 Am. Dec. 532; Pickering v. Pick- 
 ering, 6 N. H. 120; Kellogg v. Robinson, 
 32 Conn. 335; Stall v. Meek, 70 Pa. St. 
 181; McKinley v. McGregor, 3 Whart. 
 (Pa.) 369; Butts V. Newton, 29 Wis. 632; 
 Cantrell v. Colwell, 3 Head (Tenn.). 471; 
 Stewart's Marr. and Div. § 174. Or for 
 a third person in dealings with her hus- 
 band. Picliering v. Pickering, 6 N. H. 
 124; McKinley v. McGregor, 3 Whart. 
 (Pa.) 369; Felker v. Emerson. 16 Vt. 653. 
 
 A married woman is capable of being 
 appointed and acting as the agent of a 
 third person, without the consent of her 
 husband ; she may execute a power with- 
 out his co-operation, and her acts as such 
 agent impose no legal liability on him; 
 and the knowledge or consent of the hus- 
 band does not confer, by operation of 
 law, any authority on him to do any act, 
 in the scope of the wife's agency, so as 
 to bind her principal. PuUam v. State, 
 78 Ala. 31. 
 
 A husband may act as his wife's agent, 
 and such agency may be conferred before 
 he acts, or his acts may be subsequently 
 ratified. Sims v. Smith, 99 Ind. 469; 
 Martin v. Rector, loi N. Y. 77; Buckley 
 V. Wells, 33 N. Y. 518; Knapp v. Smith, 
 27 N. Y. 277: Manhattan L. Ins. Co. v. 
 Smith, 5 N. E. Repr. (Ohio) 417; Ready 
 V. Biagg, I Head (Tenn.), 511; McLaren 
 V. Hall, 26 Iowa, 297; Penn v. White- 
 heads, 12 Gratt. (Va.) 74. See Rolling 
 V. Bordenave, 15 La. Ann. 647; Lawrence 
 V. Finch. 17 N. J. Eq. 234. 
 
 A father may be agent for his son. and 
 the son for the father. Reeves v. Kelly, 
 30 Mich. 132; Chase v. Snow, 52 Vt. 525; 
 Com. t/. Holmes, 119 Mass. 195. 
 
 An alien enemy may be an agent in 
 order to collect the money and preserve 
 the property of his absent principal. 
 
 and so far has power to bind his princi- 
 pal. Wharton on Agency, tj 16. 
 
 1. Tewksburg v. Spruance, 75 III. 187; 
 Taussig V. Hart, 58 N. Y. 425; Bunker 
 V. Mile, 30 Me. 431; Walker v. Palmer, 
 24 Ala. 358. 
 
 2. Salisbury?/. Brisbane, 61 N. Y. 617; 
 Hawley v. Keeler, 53 N. Y. 114; Sinclair 
 V. Jackson, 8 Cow. (N. Y.) 543; Green v. 
 Miller, 6 Johns. (N. Y.) 39; s. c, 5 Am. 
 Dec. 184; Franklin v. Osgood, 14 Johns. 
 (N. Y.) 527; (per Thompson, J.); Hart- 
 ford Fire Ins. Co. v. Wilcox, 57 111. 180; 
 Union Bank v. Beirne, i Gratt. (Va.) 
 226; Johnston v. Bingham, 9 W. & S. 
 (Pa.) 56; Rollins v. Phelps, 5 Min. 463; 
 Copeland v. Mercantile Ins. Co., 6 Pick. 
 (Mass.) 198; Sutton Parish v. Cole, 3 
 Pick. (Mass.) 232; Kupfer v. Augusta, 
 12 Mass. 189; Heard v. March, 12 Cush. 
 (Mass.) 5S0; Jewett v. Alton, 7 N. H. 
 253; Low z/. Perkins, 10 Vt. 532; s. c, 
 33 Am. Dec. 137; Cedar Rapids, etc, 
 Co. V. Stewart, 25 Iowa, 115; Peter v. 
 Beverly, 10 Pet. (U. S.) 532, 564. 
 
 In private agencies, a joint power of 
 attorney to two or more persons cannot 
 be executed by one of them alone; but 
 in its execution all must act jointly. Nor 
 can one of the agents delegate to another 
 authority to act for him in the execution 
 of such power. Loeb v. Drakeford, 75 
 Ala. 464. 
 
 This principle refers only to agents act- 
 ing in private matters; when appointed 
 by law or to transact public business a 
 majority may act. Soens v. Racine, 10 
 Wis. 271; Worcester v. Railr. Comm'rs, 
 113 Mass. 161; Towne z/. Jaquith, 6 Mass. 
 46; s. c, 4 Arp. Dec. 84; Woolsey v. 
 Tompkins, 23 Wend. (N. Y.) 324; Green 
 V. Miller, 6 Johns. (N. Y.) 39; s. c, 5 
 Am. Dec. 184; Ex parte Rogers. 7 Cow. 
 (N. Y.) 526; Ex parte Willcocks, 7 Cow. 
 (N. Y.) 402; s. c, 17 Am. Dec. 525; Ju- 
 re Turnpike, 5 Binn. (Pa.) 481; Comm'rs 
 V. Lecky, 6 S. & R. (Pa.) 166; s. <... g 
 Am. Dec. 418; Caldwell v. Harrison, ir 
 Ala. 755; Keyser v. School Distr., 35 
 N. H. 477; Jewett v. Alton, 7 N. H. 
 
 335 
 
Appointment. 
 
 AGENCY. 
 
 Form ol 
 
 4. Appointment. — ^There must be an appointment to constitute 
 one an agent. It is a rule of law that no one can become an 
 agent except by the will of the principal.^ 
 
 Form of Appointment. — The appointment may be under seal, 
 in writing, or verbal, or maybe implied from the fact that a person 
 
 253; Charles v. Hoboken, 3 Dutch. 
 (N. J.) 203; Martin v. Lemon, 26 Conn. 
 192; Junkins v. School Distr., 39 Me. 
 220. Compare Ballard v. Davis, 31 
 Miss. 525; Pulaski Co. v. Lincoln, 4 
 Eng. (Ark.) 320. 
 
 Where corporations appoint a number 
 of their own members a committee, a 
 majority of such committee may act and 
 bind the corporation. Damon v. Granby, 
 2 Pick. (Mass.) 345. 
 
 An agency, coupled with an interest, 
 will survive when. one of the joint agents 
 dies, and the survivors will have power 
 to act. Peter v. Beverly, 10 Pet. (U. S.) 
 532; Franklin v. Osgood, 14 Johns. 
 (N. Y.) 527; Sinclair v. Jackson, 8 Cow. 
 (N. Y.) 543. 
 
 1. Evans on Agency (Ewell's Ed.), 22; 
 Stringham v. St. Nicholas Ins. Co., 4 
 Abb. App. Dec. (N. Y.) 315; McGoldrick 
 •V. Willits, 52 N. Y. 612; Rochester Bank 
 •V. Bentley, 27 Minn. 87; Gifford v. Lan- 
 drine, 37 N. J. Eq. 127; Bercich v. Marye, 
 9 Nev. 312; Rust v. Eaton, 24 Fed. Repr. 
 830. 
 
 In the absence of evidence of express 
 appointment, of ratification, or of an es- 
 toppel, there is no sufficient evidence of 
 agency. Alexander v. Rollins, 84 Mo. 
 657; s. c, 14 Mo. App. 109. 
 
 Agency is a fact to which a witness, 
 having knowledge of its existence, may 
 testify; but it cannot be proved by gen- 
 eral reputation. Railroad & Banking 
 Co. V. Smith, 76 Ala. 572. 
 
 Where one person assumes to act as 
 the agent of another, but without author- 
 ity to do so, he makes himself personally 
 liable as a principal in the transaction. 
 Terwilliger v. Murphy. 104 Ind. 32 ; 
 Simmons v. More, 100 N. Y. 140. And 
 to the alleged principal in case he sus- 
 tains damages. Philpot v. Taylor, 75 
 III. 309. 
 
 A, B, and C were holders of a joint 
 mortgage. The assignee of the mort- 
 gagor, under an order of court, exposed 
 the mortgaged premises at sheriff's sale, 
 where they were bought in by A in pur- 
 suance of a parol arrangement with B 
 and C, that he should buy for their joint 
 benefit. C being applied to by A to ad- 
 vance his share of the purchase-money, 
 declined to do so. Two years afterwards 
 A and B sold the property at an advance, 
 
 whereupon C claimed a share of the 
 profits. Held, that complainant's con- 
 duct had been such as to preclude his 
 right to the relief sought. Yeager's Ap- 
 peal, 100 Pa. St. 88. 
 
 By the terms of the contract under 
 which the defendant T. was to acquire a. 
 one-eighth interest in the brig C, then 
 building by one P. , the title would not pass 
 to T. until the delivery of the brig, com- 
 pleted according to such contract. Before 
 such delivery, libellant, on the order of 
 P. who was afterwards managing owner, 
 and who informed libellant that T. was a 
 part owner, furnished an outfit for the 
 vessel, which was charged to the brig and 
 owners, and was delivered to^the ship 
 before the title passed to T. The pur- 
 chase was made without the knowledge 
 of defendant T., who afterwards paid to 
 P. the price of his one-eighth share. T. 
 was afterwards informed of the purchase, 
 but not that it was made in part on his 
 credit. The evidence left it doubtful 
 whether the price agreed on betweeti P. 
 and T. for the one-eighth interest was in- 
 tended to cover the outfit. Held, that, 
 under the circumstances, P. had no 
 authority to bind T. in the purchase of 
 the outfit; that if T. was liable for the out- 
 fit it was solely to P., and subject to the 
 state of their private accounts; that for 
 supplies furnished subsequently T. was 
 liable, and a reference as to these was 
 ordered. De Wolf v. Tupper, 24 Fed. 
 Repr. 289. 
 
 The will of the principal need not be 
 expressed by direction or request. Per- 
 mission to do a thing will be sufficient. 
 Fay V. Richmond, 43 Vt. 25; Williams v. 
 Williams, ii Heisk. (Tenn,) 95. 
 
 Whether there is sufficient evidence of 
 agency is a question for the jury. 
 Mechanics' Bank v. Nat. Bank, 36 Md. 5; 
 Lamb v. Irwin, 69 Pa. St. 436; Whitman 
 V. Boiling, 47 Ga. 125; Nichols v. Hail, 
 4 Neb. 210. Compare Gulick v. Grover, 
 33 N. J. L. 463. 
 
 Where the principal in a suit brought 
 to enforce a contract, entered into in 
 his name by a supposed agent, denies 
 the authority of the agent, the burden of 
 proof to establish the agent's authority 
 is on the party who seeks to enforce the 
 contract. McCarty v. Strauss, 21 La. 
 Ann. 592. 
 
 336 
 
Appointment. 
 
 AGENCY. 
 
 When under Seal. 
 
 is placed in a situation in which, according to ordinary usage, he 
 would be understood to represent and act for another.^ 
 
 When under Seal. — It is a maxim of the common law that 
 an authority to execute a deed or instrument under seal must be 
 conferred by an instrument of equal dignity and solemnity ; that is, 
 by one under seal.* 
 
 Where a sealed instrument is delivered with blanks in an essen- 
 tial part, as the name of the obligee, the blank to be filled in by 
 an agent, he must have authority under seal.^ 
 
 1. Evans on Agency (Ewell's Ed.) 23. 
 
 2. Worrall v. Munn, 5 N. Y. 229; s. c, 
 55 Am. Dec. -330; Blood v. Goodrich, g 
 Wend. (N. Y.) 68, 12 Wend. (N. Y.) 525; 
 s. c, 27 Am. Dec. 151; Wells v. Evans, 
 
 20 Wend. (N. Y.) 251 ; Hanford v. Mc- 
 Nair, g Wend. (N. Y.) 54; Wheeler v. 
 Nevins, 34 Me. 54; Baker v. Freeman, 
 35 Me. 485; Despatch Line v. Bellamy 
 Mfg. Co., 12 N. H. 205; s. Cv, 37 Am. 
 Dec. 203; Emerson v. Providence Hat 
 Mfg. Co., 12 Mass. 237; s. u., 7 Am. 
 Dec. 65 ; Damon v. Granby, 2 Pick. 
 (Mass.) 345; Banorgee v. Hovey, 5 Mass. 
 11; s. c. 4 Am Dec. 17; McNaughton 
 V. Partridge, 11 Ohio, 223; s. c. 38 Am. 
 Dec. 731; Rowe v. Ware, 30 Ga. 278; 
 Deumright v. Philpot, 16 Ga. 424; s. c, 
 60 Am. Dec. 738; Scheutze v. Bailey, 40 
 Mo. 6g; Harshaw v. McKesson, 65 N. 
 Car. 688; King v. Brooks, g Ired. L. (N. 
 Car.) 218; Maus v. Worthing, 3 Scam. 
 (III.) 26; Adams v. Power, 52 Miss. 828; 
 Gordon v. Bulkeley. 14 S. & R. (Pa.) 
 331; Cooper V. Rankin, 5 Binn. (Pa.) 
 613; Rhode V. Louthain, 8 Blackf. (Ind.) 
 413; McMurtry v. Frank, 4 TB. Monr. 
 (Ky.) 39; Mitchell v. Sproull. 5 J. J. 
 Marsh. (Ky.) 264; Smith v. Perry, 29 N. 
 J. L. 74; Wagoner v. Watts, 44. N. J. L. 
 127; Long V. Hartwell, 34 N j. L. 116; 
 Cain V. Heard, I Coldw. (Tenn.) 163; 
 Preston v. Hull, 23 Gratt. (Va.)6oo; s. c, 
 14 Ani. Rep. 153. Compare Phillips v. 
 Hornsby, 70 Ala. 414; Brown v, Eaton, 
 
 21 Minn. 409; Dickerman v. Ashton, 21 
 Minn. 558; Peine v. Weber, 47 111. 41. 
 
 Where a power of attorney given for 
 the sale of land is insufiScient in itself an 
 oral direction to sell will not help it. 
 AUis V. Goldsmith, 22 Minn. 123. 
 
 A deed may be signed by one person 
 for another if the deed is signed in his 
 presence by his direction upon an oral 
 request. McMuriry v. Brown, 6 Neb. 
 368; Gardners. Gardner, 5 Gush. (Mass ) 
 483; s. c, 52 Am. Dec. 740; Meyer v. 
 King. 2g La. Ann. 567. 
 
 3. Burns v. Lynde, 6 Allen (Mass.), 
 305; Basfordi). Pearson, g Allen i(Mass.), 
 387; Cross V. State Bank. 5 Ark. 525; 
 Preston v. Hull, 23 Gratt. (Va.) 600; s. c. 
 
 14 Am. Rep. 153; Harrison o. Tiernans, 
 
 4 Rand. (Va.) 177; Williams v. Crutcher, 
 
 5 How. (Miss.) 71; s. c, 35 Am. Dec. 
 422; Lamar v. Simpson, i. Rich. Eq. 
 (S. Car.) 71; s. c, 42 Am. Dec. 345; 
 Boyd V. Boyd, 2 Noti & M. (S. Car.) 
 125; Perminter v. McDaniel, i Hill (S. 
 Car.) 267; 26 Am. Dec. 179; PoUaid v. 
 Gibbs. 55 Ga. 46; Ingram v. Little, 14 
 Ga. 173; s. c , 58 Am. Dec. 54g; Drum- 
 right V. Philfot, 16 Ga. 424; s. c, 60 Am. 
 Dec. 738; Gilbert v. Anthony, i Yerg. 
 (Tenn.) 69; 24 Am. Dec. 439; Byers v. 
 McClanahan, 6 Gill. & J. (Md.) 250; 
 Ayres v. Harness, i Ohio, 368; a. c. 13 
 Am. Dec. 629; McKee v. Hicks. 2 Dev. 
 (N. Car.) 379; Davenport v. Sleight, 2 
 Dev. & B. (N. Car.) 381; =. c. 31 Am. 
 Dec. 420. 
 
 Verbal authority has, however, also 
 been held sufficient to authorize an agent 
 to fill up blanks in a deed. White v. 
 Duggan, 140 Mass. 18; WooUey v. Con- 
 stant, 4 Johns. (N. Y.) 54; s. c, 4 Am. 
 Dec. 246; Exp. Kerwin, 8 Cow. (N. Y.) 
 118; Stahl V. Berger, 10 S. & R. (Pa.) 
 170; s. c, 13 Am. Dec. 666; Sigfried v. 
 Levan, 6 S. & R. (Pa.) 308; s. c, 9 Am. 
 Dec. 427; Wiley v. Moore, 17 S. & R. 
 (Pa ) 438; s. c. 17 Am. Dec. 696; Ogle 
 V. Graham, 2 Pa. 132; Burnside v. Way- 
 man, 49 Mo. 356; Field v. Stagg, 52 Mo. 
 534; s. c, 14 Am. Rep. 435; Boardman 
 V. Gore, i Stew. (Ala.) 517; s. c, 18 Am. 
 Dec. 73; Vliet v. Camp, 13 Wis. 198. 
 
 Even authority implied from circum- 
 stances. Van Etta v. Evenson, 28 Wis. 
 33; s. c, 9 Am. Rep, 486. 
 
 A mortgaged of land executed and ac- 
 knowledged an assignment in blank of 
 the mortgage, and orally authorized his 
 son to find a purchaser, write in the lat- 
 ter's name as grantee, and deliver the as- 
 signment. The son did so, the assignee 
 not knowing that the son was acting as 
 agent in any respect except to deliver 
 the assignment. Helii, that the assign- 
 ment was valid. Phelps v. Sullivan, 140 
 Mass. 36. 
 
 Plaintiff sold to defendant, by deed, a. 
 lot of gravel according to specifications 
 and profiles made by a surveyor. Blanks 
 
 337 
 
Appointment, 
 
 A GENC y. Partnership — Sale of Eeal Estate, etc. 
 
 Partnership. — In the case of partners, one partner can bind the 
 other in the course of partnership business by an instrument 
 under seal, without special authority under seal. The verbal or 
 implied consent of the other partner must, however, be proved, or 
 his ratification, if the instrument is signed without his knowl- 
 edge. ^ 
 
 In Equity. — A deed signed and executed by an agent without 
 authority under seal, although not sufficient to make a convey- 
 ance, will give an equitable title, which will bar a suit in equity to 
 have the sale set aside.'"* 
 
 Contract for Sale of Real Estate. — Although an agent who has 
 no power under seal can make no conveyance of real estate, he 
 may make a valid contract for the sale under a written appoint- 
 ment.^ 
 
 Corporatiojis. — It has been formerly held that a corporation 
 could delegate no power except under its common seal ;* but 
 this doctrine has been greatly modified, and it is now gen- 
 
 were left in the deed for the quantity of 
 grayel and the sum to be paid; and the 
 parties orally agreed that the surveyor 
 should fill them up after ascertaining the 
 quantity. Held, that he might do so after 
 the delivery of the deed, and in the plain- 
 tiff's absence. Vose v. Dolan, io8 Mass. 
 155; s. c, II Am. Rep. 331. See Alter- 
 ation OF Written Instruments. 
 
 1. Cady V. Shepherd, 11 Pick. (Mass.) 
 400; s. c, 22 Am. Dec. 379; Marsh v. 
 Gold, 2 Pick. (Mass.) 285; Holbrook v. 
 Chamberlain, 116 Mass. 161; Russell v. 
 Annable, 109 Mass. 72; s. c, 12 Am. 
 Rep. 665; Mclntyre v. Park, 11 Gray 
 (Mass.), 102I s. c, 71 Am. Dec. 6go; Van 
 Deusen v. Blum, 18 Pick. (Mass.) 229; 
 s. c, 29 Am. Dec. 582; Mackay v. Blood- 
 good, 9 Johns. (N. Y.) 285; Skinner v. 
 Dayton, 19 Johns. 513; s. c, 10 Am. 
 Dec. 286; Randall v. Van Vechten, 19 
 Johns. (N. Y.) 60; s. c, 10 Am. Dec. 193; 
 Bank of Columbia v. Patterson, 7 Cranch 
 (U. S.) 299; Bond V. Aitkin, 6 W. & S. 
 (Pa.) 165; s. c, 40 Am. Dec. 550; Drum- 
 right V. Philpot, 16 Ga. 424; s. c. 60 Am. 
 Dec. 738. Compare Worrall v. Munn, 5 
 N. Y. 229; s. c, 55 Am." Dec. 330. See 
 also Partnership. 
 
 2. Watson v. Sherman, 84 III. 263; 
 Ingram v. Little, 14 Ga, 173; s. c, 58 Am. 
 Dec. 549; Jones v. Marks, 47 Cal. 242. 
 
 Where a seal is not vital to the con- 
 tract, and the agent has power to execute 
 it without a seal, it operates as a simple 
 contract although executed under seal. 
 Wagoner v. Watts, 44 N. J. L. 126; Long 
 V. Hartwell, 34 N. J. L. 116; Drum- 
 right V. Philpot, 16 Ga. 424; s. c, 60 
 Am. Dec. 738; Lawrence v. Taylor, 5 
 
 Hill (N. Y.), 113; Skinner &. Dayton, 19 
 Johns, (N. Y.) 513; s. c, 10 Am. Dec, 
 286; Evans v. Wells, 22 Wend, (N. Y.) 
 324; Everit v. Strong, 5 Hill (N. Y.), 
 163; Cady V. Shepherd, 11 Pick. (Mass.) 
 400. 
 
 3, Watson v. Sherman, 84 111. 263; 
 Peabody v. Hoard, 46 111. 242; Baum v. 
 Dubois, 43 Pa. St. 260; Lawrence v.^ 
 Taylor, 5 Hill (N. Y.), 107; Worrall v. 
 Munn, 5 N. Y. 229; s. c, 55 Am. Dec, 
 330; Newton v. Bronson, 13 N. Y. 5S7; 
 s. c. . 67 Am. Dec. 89; Lyon v. Pollock, 
 99 U. S. 668. 
 
 A letter from a principal to his agent 
 directing a sale of his real estate is suffi- 
 cient authority to the agent to sell such 
 property according to the terms of the 
 writing; but if the authority is denied, 
 and the letter is lost, its contents must 
 be clearly proved to sustain a contract 
 made by the agent. Stadleman i/. Fitz- 
 gerald, 14 Neb. 290. And in some 
 States it is not even required that this 
 authority should be given in writing. 
 Dickerman v, Ashton, 21 Minn. 538; 
 Brown v. Eaton, 21 Minn. 409; Mc- 
 Wharter v. McMahan, lo Paige (N, Y.), 
 386; Lawrence v. Taylor, 5 Hill (N. Y.), 
 107; Worrall v. Munn, 5 N. Y. 229; 
 s. c, 55 Am. Dec. 330; Moody i'. Smith, 
 70 N. Y. 598; Mortimer v. Cornwell, i 
 Hoff. Ch. (N. Y.) 351; Riley v. MIfior, 
 29 Mo. 439; Rottmani'. Wasson. 5 Kans. 
 552; Long V. Hartwell, 34 N. J. L. 116. 
 Compare Wallace v. McCuUough, i 
 Rich. Eq. (S. Car.) 426; Rockford, etc., 
 R. Co. V. Shunick, 65 111. 223; Bissell v. 
 Terry, 69 111. 184. 
 
 4, Com, Dig. Franchise, F. 12, 13, 
 
Appointment. 
 
 AGENCY. 
 
 By "BaxoL. 
 
 erally held that a corporation may appoint agents either by a 
 written vote of its directors or by implication, unless the charter 
 makes a different appointment obligatory.* (See also CORPORA- 
 TIONS.) 
 
 By Parol. — Although formerly it was held that the authority 
 to act as attorney or agent must be by deed,* it was laid down by 
 Justice Story that the rule was the other way: that an agent or 
 attorney may ordinarily be appointed by parol in the broad sense 
 of that term at the common law ; that is, by a verbal declaration 
 in writing not under seal, or by acts and implications.^ 
 
 1. Osborn v. Bank of U. S., 9 Wheat. 
 (U. S.) 738; Bank of U. S. v. Dandridge, 
 12 Wheat. (U. S.) 64; Clark v. Corp. of 
 Washington, 12 Wheat. (U. S.) 40; Bank 
 of Metropolis v. Guttschlick, 14 Pet. (U. 
 S.) 19; Fleckner v. Bank of U. S., 8 
 Wheat. (U. S.) 338; Bank of Columbian. 
 Patterson, 7 Cranch. (U. S.) 299; Essex 
 Turnpike Corp. v. Collins, 8 Mass. 292; 
 Bristol Savings Bank v. Keavy, 128 
 Mass. 298; Hutchins v. Byrnes, 9 Gray 
 (Mass.), 367; Pusey v. N. J. W. L. R. 
 ,Co., 14 Abb. Pr. N. S. (N. Y.) 434; Mid- 
 dleton V. R. Co., 43 How. Pr. (N. Y.) 
 481; Danforth w. Schoharie, etc., Co., 12 
 Johns. (N. Y.),227; Peterson v. Mayor of 
 N. Y., 17 N. Y. 449; Darst v. Gale, 83 
 111. 136; Rockford, etc., R. Co. v. Wil- 
 cox, 66 111. 417; Govven Marble Co. v. 
 Tarrant, 73 111. 608; Adams Expr. Co. z/. 
 Schlessinger, 75 Pa. St. 246; Kelsey v. 
 Nat. Bank, 69 Pa. St. 426; Atchison, 
 etc., R. Co. V. Reecher, 24 Kan. 228; 
 Flint V. Clinton Co., 12 N. H. 430; Good- 
 win V. Union Screw Co., 34 N. H. 378; 
 Kiley v. Forsee, 57 Mo. 390; Southgate 
 w. Atlantic, etc., R. Co., 61 Mo. 89; Union 
 Mining Co. v. Rocky Mt. Nat. Bank, 2 
 Colo. 248; Smiley v. Mayor of Chat- 
 tanooga, 6 Heisk. (Tenn.) 604; Steel v. 
 Solid Silver, etc.. Mining Co., 13 Nev. 
 486; Stanwood v. Laughlin, 73 Me. 112; 
 Lime R. Bank v. Macomber, 29 Me. 564; 
 Warren v. Ocean Ins. Co., 16 Me. 439; 
 s. c, 33 Am. Dec. 674; Swazy v. Union 
 Mfg. Co., 42 Conn. 556; Vicksburg, etc., 
 R. Co. V. Ragsdale, 54 Miss. 200; Le- 
 grand v. Hampden S. College, 5 Munf. 
 (Va.)324; The Banks v. Poitiaux, 3 Rand. 
 (Va.) 143; s. c, 15 Am. Dec. 706; Union 
 Bank V. Ridgeley, i Harr. & G. (Md.) 
 413; Elysville M. Co. v. Okisko Co., i 
 Md. Ch. 392; Ross V. City of Madison, 
 I Carter (Ind.), 281 • Garvey v. Colcock, 
 I Nott & McC. (S. Car.) 231; Buncomb'e 
 Turnpike Co. v. McCarson, i Dev. & B. 
 (S. Car.) 306; Petrie v. Wright, 6 S. & 
 M. (Miss.) 647; Baptist Church v. Mul- 
 ford, sHalst. (N. J.) 182; Merrick v. Bur- 
 lington Co., II Iowa, 75; Wallers. Bank 
 
 of Ky., 3 J. J. Marsh. (Ky.) 201; Lee v. 
 Flemingsburg, 7 Dana (Ky.), 28; Muirif- 
 Canal Co., 8 Dana (Ky.). 161; Poultney 
 V. Wells, I Aiken (Vt.), i8o; Sheldon v. 
 Fairfax, 21 Vt. 102; San Antonio v. 
 Lewis, 9 Tex. 69. 
 
 The authority of a corporation or its^ 
 officers to issue its promissory note need 
 not be expressly given by its by-laws, or 
 by formal resolution of the board of di- 
 rectors. Such authority can be inferred' 
 from the acquiescence of the corporation, 
 in, or the recognition by it of, the acts of 
 its accredited officers in the regular course 
 of its authorized business. First Nat. 
 Bank v. North Miss. Coal, etc., Co., 86. 
 Mo. 125. 
 
 The authority to appoint an agent need 
 not be specifically mentioned in the 
 charter. Kitchen v. Cape Girardeau R. 
 Co., 59 Mo. 514; Old Colony R. Co. v. 
 Evans, 6 Gray (Mass.), 25; s. c, 66 Am.. 
 Dec. 394. 
 
 The appointment of an agent by or for 
 a corporation, as by a natural person, 
 may be implied from a confirmation of 
 his acts, or an acceptance of his servicer 
 without objection; and after such con- 
 firmation, or acceptance, the corporation 
 cannot evade payment for his services 
 by denying the validity of his appoint- 
 ment. Ala. Gr. So. R. Co. i/. Hill, 76 Ala. 
 303; Reynolds v. Collins, 78 Ala. 94. 
 
 A contract between two corporations- 
 will not be void for lack of seals; bnt. 
 a court of equity will, if necessary, com- 
 pel the parlies to affix their seals. Mis- 
 souri, etc., R. Co. V. Miami Co., 12 Kans. 
 482. See Corporations. 
 
 2. Bac. Abr., Authority A. 
 
 3. Story on Ag. § 47. Doty v. Wilder,. 
 15 111. 407; s. c, 60 Am. Dec. 756; Equi- 
 table, etc., Co. V. Baltimore, etc., Co., 2 
 Cent. Repr. (Md.) 863; Brooks v. Jame- 
 son, 55 Mo. 505; Rice V. Groffmann. 56 
 Mo. 434; Cook V. Slate Bank. 52 N. Y.. 
 96; s. c, II Am. Rep. 667; Pickett v^ 
 Pearsons, 17 Vt. 470; Farmers', etc.,. 
 Bank v. Butchers', etc., Bank, 16 N. Y._ 
 
 125- 
 
 389 
 
Appointment. 
 
 AGENCY. 
 
 By Implication. 
 
 By Implication. — So it can in general be said that the manner 
 ill which a party treats one who apparently acts as his agent, and 
 holds him up before third parties, will be a sufficient implication 
 
 of 
 
 agency. 
 
 An agent for the payment of taxes may 
 be appointed by parol. Paris v. Lewis, 
 
 85 111. 597- 
 
 1. South, etc., Ala. R.Co. v. Henlein, 
 52 Ala. 606; Shaffer v. Sawyer. 123 Mass. 
 2g4; Hull v. Jones, 69 Mo. 587; Singer 
 Mfg. Co. V. Holdfodt, 86 111. 455; Colum- 
 bia, etc.. Bridge Co. v. Geisse, 38 N. J. 
 L. 39; Haughton v. Maurer, 55 Micli. 
 323; Lovell V. Williams, 125 M^ss. 439; 
 Rice V. Groffmann, 56 Mo. 434; Brooks 
 V. Jameson, 55 Mo. 305; Engh v. Green- 
 daum, 4 Th. & C. (N. Y.) 426. 
 
 Agency is generally a mere question 
 of fact. Roberts v. Pepple, 55 Mich. 
 367. 
 
 The question of agency is one of fact 
 to be determined fiom the evidence in a 
 case. Therefore, where a correspondent 
 of the C. Banking Co., who had adver- 
 tised money to loan, in filling out an ap- 
 plication for a loan stated therein that 
 the applicant employed him and the C. 
 Banking Co. to negotiate a loan for him, 
 held, that the applicant was not estopped 
 from showing that the correspondent was 
 the agent of the C. Banking Co. New 
 Engl,, etc., Sec. Co. v. Addison, 15 Neb. 
 
 335- 
 
 Agency, as a question ot fact,' may be 
 proved by the acts, declarations, or con- 
 duct of the principal and agent, although 
 the agent was appointed by power of at- 
 torney. Columbia D. B. Co. v. Geisse, 
 38 N. J. L. 39. 
 
 Agency will be implied where one party 
 accepts the benefits resulting from the 
 transactions of another party ostensibly 
 acting as his agent. MiUigan v. Davis, 
 49 Iowa. 126; Veaziew. Williams, 8 How. 
 (U. S.) 134; Foster v. Swasey, 2 W. & M. 
 (U. S.) 217; Hatch V. Taylor, 10 N. H. 
 538; Fouch V. Wilson, 59 Ind. 93. 
 
 A mortgagor conveys a stock of goods 
 on hand, and any other goods he may 
 buy to replenish the stock, with power of 
 sale if the debt is not paid by a certain 
 time. Held, that by accepting the deed 
 the mortgagee assented to its provisions 
 — to the mortgagor's continuing the busi- 
 ness, with the right to sell and rep'tnish 
 the stock, and constituting him an agent 
 for that purpose. Bynum v. Miller, 8g 
 N. Car 393. 
 
 Where a son acts for his father in pro- 
 curing a mortgage, undertakes the whole 
 negotiation, decides upon the security, 
 satisfies himself as to the title, attends to 
 
 the execution of the papers, receives the 
 money from his father and pays it over 
 to the morgagor, — in short, does every- 
 thing an agent could do, and his father 
 accepts the benefits of the transaction, 
 the son may properly be regarded as his 
 father's agent, in spite of his testimony to 
 the contrary, especially if he admits being 
 his agent just before and just after these 
 acts; it is idle, under such circumstances, 
 for him to claim to have been agent for 
 the person giving the mortgage. Mat- 
 teson V. Blackmer, 46 Mich. 393. 
 
 A contract between a hotel company 
 and the manager of the hotel was treated 
 by the parties as a lease, and provided 
 that the manager should take the hotel 
 from July. 1883. to April, 1884, and pay 
 the company twenty per Cent of the gross 
 results of the whole business, after de- 
 ducting $200 per month for his services. 
 Held, that the company would be liable, 
 notwithstanding the character of the con- 
 tract, if the company, in its relations 
 with one furnishing supplies for the hotel, 
 treated him as its agent for their pro- 
 '-u'rement; otherwise the company was not 
 ■.'able, Freiberg v. B. H. & S. I. Co., 
 63 Tex. 449; Beecher' v. Venn, 35 Mich. 
 466. 
 
 Plaintiff sold one Y. a tract of land, 
 the title to which was in doubt. By an 
 instrument under seal, to which defend- 
 ant was no party and in which he was 
 not named, plaintiff agreed to use dili- 
 gence in perfecting the title and to have 
 it vested in Y. , and thereupon Y. was to 
 pay one half of the purchase-money, the 
 other half being paid in cash. In making 
 the purchase Y. was acting as agent of 
 defendant, and he immediately assigned 
 the contract to defendant, who took pos- 
 session. Defendant had furnished the 
 money for the cash payment. Plaintiff 
 subsequently aided in perfecting the title, 
 and the same was finally vested in de- 
 fendant. Keld, that though plaintiff could 
 not ma'ptain an action against defendant 
 on the cc ntract, because it was under seal 
 and defe idant was no party to it and was 
 not named In it, yet he could sue on the 
 implied obligation growing out of all the 
 facts stated. Moore v. Granby M. & S. 
 Co., 80 Mo. 86. 
 
 As a general rule, the fact of agency 
 cannot be established by proof of the acis 
 of the professed agent, in the absence of 
 evidence tending to show the principal's 
 
 840 
 
i&ppointment. 
 
 AGENCY. 
 
 Scope of Employment. 
 
 Scope of Employment. — The appointment may be inferred from 
 the scope of the alleged agent's employment.^ 
 
 9cnowledge of such acts, or assent to 
 them; yet, where the acts are of such 
 character, and so continuous, as to justify 
 a reasonable inference that the principal 
 had knowledge of them, and would not 
 have peripitted them if unauthorized, the 
 acts themselves are competent evidence 
 • of the agency. Reynolds v. Collins. 78 
 Ala. 94; Proctor v. Tows, 115 111. 138. 
 
 If A purchases B's stock in trade at 
 -sheriff's sale and B continues business as 
 agent without disclosing his principal, it 
 was held that it may be presumed that B 
 was A's agent. Hansell v. Levy, 5 Del. 
 407. 
 
 Where a person acts openly and pub- 
 licly as the agent of a corporation, and 
 in such capacity employed a party to 
 perform certain work, and the work when 
 ■completed was appropriated and used by 
 the corporation, and the work was done 
 •with the knowledge of its agents, held, 
 that the agency and authority of such 
 •person so permitted to act must be pre- 
 sumed. Rockford, etc., R. Co. v. Wil- 
 •cox, 66 111. 417; Singer, etc., Co, v. Hold- 
 fodt, 86 111. 455; s. c, 29 Am. Rep. 43; 
 Franklin v. Globe, etc., Ins. Co.. 52 Mo. 
 -461; Ketchum v. Verdell, 42 Ga. 534; 
 Bank v. Dandridge, 12 Wheat. (U. S.) 
 64. 
 
 A single act of an assumed agent, and 
 :a single recognition of his authority by 
 the principal, may be sufficient to prove 
 'the agency. Wilcox v. Chicago, etc., R. 
 Co., 24 Minn. 269. 
 
 But authority to do a certain act can- 
 not be implied from the fact that another 
 -act of an entirely different character done 
 by the agent in the name of the principal 
 w-as assented to. Humphrey v. Havens, 
 12 Minn. 298. 
 
 The allowance of a commission to one 
 -who solicits orders for sales effected 
 through such orders does not make him 
 an agent with authority to make an abso- 
 lute sale. Clough v. Whitcomb, 105 
 Mass. 482. 
 
 Where the agent has the possession of 
 a promissory note after due, it may be 
 inferred that he has authority to receive 
 payment of it, but the burden is on the 
 debtor who makes payment to the agent, 
 relying upon such inference, to show that 
 the promissory note was in his possession 
 when the payment was made. Stiger v. 
 Bent, III 111. 328; Williams v. Walker, 
 2 Sandf. Ch. (N. Y.) 325; Haines v. Pohl- 
 inann, 25 N. J. Eq. 179; Smith v. Kidd, 
 '68 N. Y. 130; Adams v. Humphreys, 54 
 ■Ga. 496; Doubleday v. Kress, 60 Barb. 
 
 N. Y. 181; Jones on Mortgages, 2d ed., 
 sec. 964. 
 
 The fact that the note was neither sur- 
 rendered nor offered to be surrendered, 
 under the circumstances, is conclusive, evi- 
 dence that he did not then have it. Lucas 
 V. Harris. 20 111. 165; Mayo v. Moore, 28 
 111. 428; Keohane v. Smith. 97 111. 156; 
 Stiger V. Bent, iii 111. 328; Draper v. 
 Rice. 56 Iowa, 114; s. c, 41 Am. Rep. 
 88; Guilford v. Stacer, 53 Ga. 61S. 
 
 Debtor paying one not possessing the 
 note or evidence of the debt assumes the 
 risk of the authority of the payee to col- 
 lect the money. Wooding v. Bradley, 
 76 Va. 614. 
 
 1. Adams Mining Co. v. Senter, 26 
 Mich. 73; Atlantic, etc., R. Co. v Reisner, 
 18 Kans. 458; Eisner z/. State, 30 Tex. 524; 
 Leake z/. Sutherland, 25 Ark. 219; Gallup 
 V. Lederer, 3 Th. & C. (N. Y.) 710; Whelan 
 V. Reilly, 61 Mo. 565; Noble v. Nugent, 
 89 III. 522; Thurber v. Anderson. 88 111. 
 167; Starring v. Mason, 4 Neb. 367. 
 
 Where the travelling salesman of a 
 corporation has power to make a contract 
 in its name, take payments thereon, re- 
 ceive a bond for its fulfilment, and settle 
 with the other party to the contract, his 
 agency is sufficiently established to charge 
 the corporation with notice of what was 
 said and done in respect to liability on 
 the bond at the time of the, settlement. 
 Columbus Sewer Pipe Co. v. Ganser, 58 
 Mich. 386. 
 
 Where an agent of a banking firm is 
 authorized to certify the checks of draw- 
 ers with sufficient funds, the fact that he 
 transgresses his authority and certifies 
 checks where the drawer has no funds 
 will not relieve the bank from responsi- 
 bility to an innocent holder. In a suit 
 by a bona-fide holder of a certified check 
 against the bank, the authority of an 
 assistant teller of the bank to certify 
 checks as "good "may be shown by evi- 
 dence of a course of dealing as between 
 himself, his principals, and the bank 
 customers. Semble, that such authority 
 could not be shown by evidence of a 
 general custom of banks to authorize 
 such agents to pledge the credit of the 
 bank by certifying checks. Hill v. Nat. 
 Trust Co., 108 Pa. St. i. 
 
 A debtor applied to an agent of his 
 creditor for an extension of the time of 
 payment or a renewal of the loan, the 
 creditor being anon-resident corporation, 
 and the agent a resident of the State, 
 acting generally for the creditor as to 
 loans in this State. At the first inter- 
 
 I C. of L. —23 
 
 341 
 
Appointment. 
 
 AGENCY. 
 
 Former Employment^ 
 
 Former Employment. — Agency cannot be implied from, a for-- 
 mer employment in the same capacity without further proof.^ 
 
 view the agent stated to the debtor that 
 he would communicate with the home 
 office in regard to the proposition made, 
 and afterward such agent, in another in- 
 terview, said he was ready to enter into 
 the arrangement that was thereupon 
 made. ^Held, that from these facts the 
 debtor might properly infer that the agent 
 received the principal's sanction for en- 
 tering into the arrangement he made, 
 and that the debtor was justified in his 
 reliance upon the agent's authority to 
 make it. Union Mut. L. Ins. Co. v. 
 Slee, no 111. 35. 
 
 Where a person employs the cashier of 
 a bank to purchase certain railroad-aid 
 bonds lor him, the cashier is his agent in 
 the purchase of the bonds; but when the 
 bonds are deposited as a special deposit 
 he ceases to be agent of the purchaser 
 and becomes agent of the bank; and. if 
 he afterwards embezzles the funds of the 
 bank, and, to hide his embezzlement, 
 takes the bonds from the special deposit 
 and places them among and reports them 
 as assets of the bank, the depositor may 
 recover their value from the bank. First 
 National Bank of Monmouth v. Dunbar, 
 6 Western Repr. (111.) 530. 
 
 Where a party contracted to pay a cer- 
 tain price for cars to carry four hundred 
 head of cattle, and delivered a part and 
 signed a contract restricting the liability 
 of the company, it will be presumed that 
 other persons, who delivered the re- 
 mainder of the cattle, acted as his agents, 
 and had authority to sign similar con- 
 tracts. Illinois, etc., R. Co. v. Morri- 
 son, 19 III. 136. 
 
 To establish a retail store in a place 
 from twenty to thirty miles away from 
 the owner's residence, place a clerk or 
 agent in the sole charge of it, the owner 
 only visiting such store or the town 
 where it is situated once a month, and 
 sometimes only once in two or three 
 months, is to hold out such clerk or agent 
 as not only authorized to sell goods at 
 retail, but also to keep the stock replen- 
 ished by purchases according to the usual 
 course of business. White v. Leighton, 
 15 Neb. 424; Gilbraith v. Lineberger, 6g 
 N. Car. 145; Darst v. Slevins, 2 Disney 
 (Ohio), 473. 
 
 A traveller, when he goes to a hotel at 
 night and finds a clerk in charge of the 
 office, assigning rooms, etc., has the right 
 to assume that such clerk represents the 
 proprietor and has authprity to take 
 charge of money which may be handed 
 him by a guest for safe-keeping. Curtis 
 V. Murphy, 63 Wis. 4. 
 
 Where a defendant intimated to the 
 plaintiff that a certain man was his agent, 
 and such person was known by the plain- 
 tiff to have, at or about the time of plain- 
 tiff's negotiations with him, transacted 
 similar business with other parties for 
 the defendant, the plaintiff will be justi- 
 fied in inferring that such man is an agent, 
 and any contract eritered into within the 
 scope of his supposed agency will be bind- 
 ing on the defendant. 'Thompson!/. Clay, 
 27 N. W. Repr. (Mich.) 699. 
 
 Where an agent who usually passed 
 upon the validity of drafts drawn against 
 his principals, and was conversant with 
 the business of his principals, rep- 
 resented that a certain draft was for a 
 legitimate expense of the firm, and was 
 genuine, the principals are bound by his 
 statements, although the draft prove a< 
 forgery. Western Min. Co. v. Toole, 11 
 Pac. Repr. (Ariz.) ng. , 
 
 On the issue whether the defendant 
 had, by a salesman, made a certain con- 
 tract with the plaintiff, there was evidence 
 that the salesman had authority to make 
 such a contract, and that the plaintiff 
 wrote to the defendant stating that such 
 a contract was made, to which the only 
 reply received was a letter written by the 
 salesman on the letter-paper of the de- 
 fendant, to which the defendant's name 
 was signed by the salesman, admitting 
 the contract to be as the plaintiff con- 
 tended it was. Held, that the jury might 
 properly infer that the salesman had au- 
 thority to write the letter. Thomas v.. 
 Wells, 140 Mass. 517. 
 
 Kn agent who has been in the habit of 
 indorsing his principal's name on notes 
 will be presumed to have the power. 
 Weaver v. Ogletree, 39 Ga. 586. See 
 Friedlander v. Cornell, 45 Tex. 585. 
 
 Plaintiff owned sight drafts drawn on 
 defendant P., who had authority to re- 
 ceive payment for them, indorsed them 
 for deposit in the Broadway National 
 Bank, and gave them to the office boy to 
 deposit. 'The boy took the drafts to 
 the defendant and received the money 
 for them, which he handed to P. , who ap- 
 propriated it. Held, that the payment 
 was valid. Johnson v. Donnell, go N. Y. 
 I. See Doubleday v. Kress, 60 Barb. 
 (N. Y.) 181; Guilford v. Stacer, 53 Ga. 
 618; Stiger «/. Bent, in 111. 328. 
 
 1. Cobb u. Hall, 49 Iowa, 366; Fisher 
 V. Schiller lodge, 50 Iowa, 459; Greene «/. 
 Hinkley, 52 Iowa, 633; Alabama Gr. S'.' 
 R. Co. V. Roebuck, 76 Ala. 277; Ishell ». " 
 Brinkman, 70 Ind. 118; Campbell v. Mur- 
 ray, 62 Ga. 86; People v. North Ameri- 
 
 342 
 
Appointment. 
 
 AGENCY. 
 
 Direct Instructions. 
 
 Direct Instructions. — An agency may be constituted by direct 
 instructions.^ 
 
 ca Bank, 75 N. Y. 547; Kent v. Tyson, 
 20 N. H. 121; Reed v. Baggott, 5 111. 
 App. 257; Danahar v. Garlock, 33 Mich. 
 295. See Gano v. Chicago, etc., R. Co., 
 49 Wis. 57. 
 
 Plaintiff authorized K. & B., insurance 
 brokers, to procure insurance on certain 
 property for a sum specified; they pro- 
 cured a policy from defendant, which was 
 delivered 10 plaintiff; it contained aclause 
 giving the company the right to terminate 
 the insurance "on giving notice to that 
 effect." Defendant directed its agents to 
 cancel the policy; they notified K. & B. 
 of this fact, and arranged with them to is- 
 sue a policy in another company to take 
 the place of defendant's policy. K. & B. 
 agreed to procure said policy from de- 
 fendant, and thereupon defendant's agent 
 wrote a policy in another company. 
 Plaintiff had no knowledge or informa- 
 tion as to this arrangement until after a 
 loss, and had the original policy in his 
 possession. Held, that the notice to K. 
 & B. was not notice to plaintiff, and the 
 transaction did not operate as a cancella- 
 tion of defendant's policy. A clause in 
 the policy declared that any person other 
 than the assured procuring the policy 
 should be deemed an agent of the assured, 
 not of the company, "in any transaction 
 relating to this insurance." Held, that 
 this did not constitute K. & B. continuing 
 agents, or make the notice to them bind- 
 ing upon plaintiff. Hermann v. Niagara 
 Ins. Co., 100 N. Y. 411. 
 
 A wife having authorized her husband 
 to collect moneys due her at different 
 times, and in one or two instances to use 
 the money to pay his own debts, does not 
 thereby constitute him her general agent 
 so as to enable him to bind her in a spe- 
 cial manner "by acts beyond the authority 
 given him. Brooke w. Barnes, i Mackey 
 (D. C), 5. 
 
 1. W. S. W. procured several fire-in- 
 surance policies, which were issued to 
 him, losses, if any, to be paid to W. Bros. , 
 a firm composed of W. S. W., J. W., 
 and A. W. ; N. was his agent to pro- 
 cure the policies. After insurance a com- 
 pany issuing one of the policies notified 
 N. that it desired to cancel the policy, and 
 sent him a policy for same amount and 
 similar provisions on another company to 
 be substituted. N. saw A. W., who as- 
 sented to the substituted policy. Loss 
 occurred before he saw W. S. W., and be- 
 fore the policy was delivered. Afterwards 
 substituted policy was delivered and orig- 
 inal policy surrendered. Held, the sub- 
 
 stituted company was liable, as the assent 
 by one of the beneficiaries and partners 
 was sufficient. And Af/a? further, that N. , 
 as to the substitution, was the agent of 
 the company, and it was estopped to 
 deny its liability. Whiteman Bros. v. 
 Insurance Company, 14 Lea (Tenn.), 
 327. 
 
 The defendant having a claim against 
 S. & S., and knowing them to be insolv- 
 ent, authorized them to buy wool, ex- 
 pressly agreeing to furnish the money to 
 pay for it, the wool to be consigned to 
 defendant, who was to sell the same, and 
 after deducting expenses, commissions, 
 and cost, credit S. & S. with the balance. 
 Accordingly, S. & S. bought wool from 
 the plaintiffs and their assignors, who 
 supposed that they were dealirig with S. 
 & S. alone. The defendant received and 
 sold the wool, and without paying for the 
 same, credited S. & S. on their indebted- 
 ness with the net proceeds, but without 
 deducting the cost. Held, that the facts 
 constiiuted an agency in S. cSc S. sufficient 
 to charge the defendant. Thomas v. 
 Moody, 57 Cal. 215. 
 
 Where the owner of a slave called with 
 her on an auctioneer and requested him 
 to sell her, and was told to call in the 
 morning, there being no more sales that 
 night; and the slave called in the morn- 
 ing alone, stating that she came to be 
 sold, and he sold her; held, that he Avas 
 authorized to do so, although, the owner 
 had in fact no intention to sell, but 
 merely to frighten her. Morgan v. Dar- 
 ragh, 39 Tex. 171. 
 
 The owner of real estate situated in 
 Kansas City, in this State, wrote from 
 Chicago, 111., where he resided, to his 
 agent at Ka,nsas City, in terms as fol- 
 lows: " Your letter received last night; I 
 will leave the sale of the lots pretty much 
 with you; if the party, or any one, is 
 willing to pay sixty dollars per foot, one 
 third cash and balance one and two years, 
 interest seven per cent per annum, and 
 pay commission of sale, I think I am 
 willing to have you make out a deed and 
 I will perfect it; I think you have the 
 deeds to those lots, have you not ? If you 
 think better to try spring market, hold 
 till then; the party buying may want the 
 abstract in full, which I believe I have at 
 Rockford; and will sell much less than 
 cost. The above price is only for the 
 present. ... It is understood that if I 
 pay the taxes now due, that hereafter I 
 am relieved from any taxes." Held, that 
 the Iptter authorized the agent to make a 
 
 343 
 
Appointment, 
 
 AGENCY. 
 
 Facts must be Distinct. 
 
 Facts must be Distinct. — The facts from which an agency may 
 be implied must, however, be sufficiently distinct to leave no doubt 
 about the intention of the party appointing.^ 
 
 contract for the present sale of the lots. 
 -Smith V. Allen, 86 Mo. 178. 
 
 1. Fisher v. Moyer, 4 Atl. Repr. (Pa.) 
 ■64; Hood V. Adams, 128 Mass. 207. 
 
 At the trial of an action upon a guar- 
 anty of the soundness of goods sold, it 
 •appeared that the written guaranty upon 
 which the plaintiff relied had been altered 
 ^fter it was signed by the defendant. The 
 plaintiff contended that it was altered by 
 the defendant in his office; and the de- 
 fendant denied that it was altered by him 
 •or by his authority. The plaintiff intro- 
 "duced a witness, who testified that A. 
 ■brought the defendant's bill into a store 
 where the plaintiff then was; that a roll 
 "of bills was given to A. ; and that A. and 
 the plaintiff went out of the store to- 
 gether. The plaintiff then offered to 
 show by this witness that the plaintiff 
 "found fault with the terms of the guar- 
 anty; and that A. said that "he was au- 
 thorized by the defendant to say, if it was 
 not right, to return it to him, and that 
 he would make it satisfactory." The 
 judge excluded the evidence offered, upon 
 the ground that there was no evidence 
 that A. had any authority from the de- 
 fendant to receive or make such state- 
 ments. Held, that the plaintiff had no 
 ground of exception. Bowker v. De- 
 long, 141 Mass. 315. 
 
 A travelling salesman had in his pos- 
 session a horse belonging to his princi- 
 pals, and used it in their business. His 
 principals wrote him that they should 
 charge him with the horse unless he paid 
 for it, or returned it to them, and ac- 
 counted for his sales. He did not pay 
 for it, or return, or account, but sold the 
 horse, showing the purchaser the letter. 
 Held, that the letter was not a proposi- 
 tion of sale, and the purchasers got no 
 title. Calhoun v. Thompson, 56 Ala. 
 166; s. c, 28 Am. Rep. 754. 
 
 A book-keeper has no authority as 
 such to make his employer liable for the 
 debts of a third person. Ruppe v. Ed- 
 wards, 52 Mich. 411. 
 
 The fact that a house was built upon 
 land of a married woman, and that, 
 while it was in course of construction, 
 she made suggestions in regard to cer- 
 tain alterations, and once paid the con- 
 tractors on account, does not operate to 
 make her a principal in the matter, 
 where it appears that the house was 
 ■being built for a son by the husband, and 
 that he selected the site, employed the 
 
 contractors, and paid for the house out 
 of his own money ; and that, in doing so, - 
 he was acting under his authority as 
 husband, and that the money paid by 
 the wife was gotten from his store, and 
 paid in his absence. Conway v. Crook, 
 7 Atl. Repr. (Md.) 402. 
 
 In an action for money lent, the fol- 
 lowing facts appeared: The pastor of a 
 Roman Catholic church borrowed money 
 of the plaintiff, for the use of the church, 
 upon a written contract of repayment, in 
 the form of a deposit-book in the name 
 of the church. The church had no cor- 
 porate existence, and was incapable of 
 making a contract. The money bor- 
 rowed was mingled with the revenues of 
 the church; and from the fund thus con- 
 stituted the ordinary expenses of the 
 church and sums due other similar de- 
 positors were paid, and payments were 
 made for real estate. The defendant 
 was the bishop of the diocese in which 
 this church was situated, and held the 
 legal title to all the real estate of the 
 church. It was his duty not to permit 
 priests to contract debts in the name or 
 for the sake of a church without written 
 permission. He knew that the pastor of 
 the church in question was doing a bank- 
 ing business, and did not stop it, though 
 he had the power to do so. He also 
 knew of the manner in which the money 
 received from depositors was mingled 
 with the other funds of the church. 
 Shortly before the death of a pastor of 
 the church, the defendant received from 
 him a large sum of money to meet the 
 claims of depositors; and this sum was 
 turned over to the successor of said pas- 
 tor for the benefit of depositors. The 
 defendant also raised money upon mort- 
 gages of the church property and upon 
 his own unsecured notes for the same 
 purpose; and subsequently transferred 
 the real estate of the church to an eccle- 
 siastical corporation, which' afterwards 
 became insolvent. The defendant testi- 
 fied, and his testimony was the only evi- 
 dence in the case on the question of what 
 the canon law was, that, under the canon 
 law, the bishop has full power in the 
 management of church affairs; that the 
 diocese is the parish, and the bishop the 
 universal parish priest; that all power 
 possessed by priests is delegated from 
 the bishop; that the clergyman in charge 
 of a church has charge of all its tempo- 
 ralities; that it belongs to such pastor to 
 
 344 
 
Appointment. 
 
 AGENCY. 
 
 Parties Bound. 
 
 Parties Bound by Implication. — Where facts exist sufficient to 
 
 make all contracts relating to the tem- 
 poral affairs of the church, and he is not 
 the agent or servant of the bishop in such 
 matters; that the only control of the 
 bisljop over the pastor is by ecclesiasti- 
 cal discipline. Held, a verdict for the 
 plaintiff could not, upon this evidence, be 
 sustained, as the pastor could not be con- 
 sidered to be the agent of the bishop. 
 Leahey v. Williams, 141 Mass. 345. 
 
 Leaving a subscription-list with a 
 party does not constitute an agent with 
 power to collect the money. Antram v. 
 Thorndell, 74 Pa. St. 442. 
 
 Where one was requested by the owner 
 of a piece of property to ascertain the 
 amount of taxes due on it, he was not 
 held to be the agent of the owner so as 
 to be guilty of fraud when afterward' he 
 bought the land for less than its actual 
 value. Collar v. Ford, 45 Iowa, 331. 
 
 The fact that the maker of a note, at 
 the mutual desire and request of the pro- 
 posed payee and surety, takes it to ob- 
 tain the signature of an additional surety, 
 does not constitute him the agent of such 
 payee. Hunter z/. Fitzmaurice, 102 Ind. 
 
 449- 
 
 Where the only evidence to show an 
 agency was that some money belonging 
 to the alleged principal had been paid to 
 the party sought to be proved an agent, 
 and the alleged agent had done sundry 
 acts of kindness for the alleged principal, 
 held, no evidence to create an agency. 
 Fortescue v. Makeley, 92 N. Car. 56. 
 
 A written instrument, signed only by 
 a railroad company, by which, in consid- 
 eration of a promise by the owner of 
 lands to convey to it a right of way 
 through his lands, the company binds it- 
 self to establish a station or depot at or 
 near a named road-crossing, and to ap- 
 point him agent for said station, to con- 
 tinue him as such so long as he faithfully 
 discharged the duties of the agency, and 
 to pay him a salary as agent of $30 per 
 month, should the business of the sta- 
 tion justify the same, does not, of itself, 
 constitute him an agent of the railroad 
 company at said station on the comple- 
 tion of the road. Evans -v. Cincinnati, 
 etc., R. Co., 78 Ala. 341. 
 
 A delivery by a wife to her husband of 
 a check "payable to the order of a third 
 person does not necessarily constitute 
 the husband the agent of the wife to re- 
 ceive the amount of the check. A hus- 
 band having a check in his possession, 
 which had been delivered to him by his 
 wife, and which was signed by her and 
 was payable to the order of a third per- 
 
 son, said to this person that the wife had 
 given it to him (the husband), and he 
 wanted it cashed. The third personi 
 gave the husband the amount of the 
 check, and collected the money from the 
 bank. Held, in an action by the wife 
 against the third person, for money had 
 and received, that the statement of the 
 husband was not evidence against the 
 wife, either that the check was a gift to 
 the husband, or that he was authorized 
 to receive the proceeds of it. Hunt v. 
 Poole, 139 Mass. 224. 
 
 The relation of landlord and tenant 
 does not imply an agency. The tenant 
 is no\. per se the agent of the landlord. 
 White V. Montgomery, 58 Ga. 204. 
 
 Neither is the debtor the agent of the 
 creditor in procuring security according 
 to the creditor's directions. Campbell v, 
 Murray, 62 Ga. 85. 
 
 The relation of agency does not exist 
 between joint-debtors arising from com- 
 munity of interest; their community of 
 interest is confined to the payment of 
 the debt. Walter v. Kraft, 23 S. Car. 
 578. 
 
 Nor does iXper se exist between father 
 and son. Ritch v. Smith, 82 N. Y. 627; 
 McNaraara v. McNamara, 62 Ga. 200. 
 
 Defendant, a corporation, had a gen- 
 eral agent who induced a number of citi- 
 zens of S. to form an association which 
 was known as a local board, the object of 
 which was to procure applications to de- 
 fendant for life insurance and loans of 
 money. Each member of the board was 
 insured in the company, and it was one 
 of its rules that it would loan money only 
 to persons who were insured with it. 
 The board had a secretary who transacted 
 all its business. D. was vice-president of 
 the plaintiff corporation. He was also 
 secretary of said local board. During 
 the time he acted as such secretary he 
 assisted in conducting plaintiff's business, 
 and received a salary from it. The com- 
 pensation as secretary was such fees as 
 were charged' for insurance and loans of 
 money, and these ^ums were paid over to 
 plaintiff. The president of the plaintiff 
 company was also a member of the local 
 board. In Nov. 1876 one T. made applica- 
 tion for => policy of insurance and a loan 
 of $300, which he proposed to secure by 
 a mortgage on the land in question. D. 
 received this application and forwarded 
 it to defendant, and with it he sent an ab- 
 stract of the title of the land, which was 
 given by plaintiff, it being part of its 
 business to furnish abstracts of title. T. 's 
 application was accepted. This mort- 
 
 345 
 
Appoiutnient. 
 
 AGENCY. 
 
 Parties Bound, 
 
 imply the relation of principal and agent, the parties are bound 
 by them.^ 
 
 gage was foreclosed in 1877, and the 
 premises were sold, defendant being the 
 purchaser, and in Dec. 1878 it obtained 
 a sheriff's deed therefor. Indorsed on 
 the abstract of title given by plaintiff at 
 the time the loan was made was the cer- 
 tificate of the county treasurer to the ef- 
 fect that there were no taxes due and un- 
 paid upon thei land at the time the cer- 
 tificate was signed, which was Nov, 20, 
 1876. The taxes for that year, however, 
 had not been paid. In Oct. 1877 the 
 land was sold therefor, and plaintiff was 
 the purchaser, and in Nov. 1S80 it ob- 
 tained a tax deed of the land. Held, that 
 while plaintiff's cashier was, in his per- 
 sonal capacity, and not as cashier, de- 
 fendant's agent, plaintiff was not such 
 agent, there being no proof of an ex- 
 press contract of agency on its part, nor 
 of any circumstance from which such 
 contract could be presumed or implied. 
 Storm Lake Bankt/. Mo. Valley L. Ins. 
 Co., 66 Iowa, 617, 
 
 The Qwner of a mortgaged farm traded 
 it for another, the purchaser assuming 
 the mortgage. It was understood, how- 
 ever, that if the amount due upon it 
 should vary either way from $3300 the 
 difference should be paid by one party 
 to the other. The vendor advanced fifty 
 dollars to cover a possible excess which 
 the purchaser might have to pay. The 
 parties had a meeting with the mort- 
 gagee's agent, and the amount due was 
 roughly estimated at if 3302.42. The agent 
 afterwards found that this reckoning was 
 wrong, and that the amount should have 
 been $3357.38. The difference, if any, 
 between the excess and the fifty dollars 
 was to be returned to the vendor, and he 
 sued the purchaser for all but $2.42, on 
 the ground that the estimate fixed the 
 excess to be paid. Held, that in the ab- 
 sence of any showing by plaintiff that 
 the difference between the two sums had 
 been remitted by the mortgagee, or that 
 her agent had authority to remit it, or 
 that there was any consideration for so 
 doing, the action would not lie. Baird v. 
 Randall, 58 Mich. 175. 
 
 The word " sell " in a, power of attor- 
 ney to "sell or lease any and all real 
 estate" was held to give ample power to 
 execute a deed of conveyance. Hem- 
 street V. Burdick, go 111. 444. 
 
 The execution of a simple power of 
 attorney, without words of conveyance, 
 but authorizing a conveyance to be made 
 upon certain conditions and for certain 
 purposes, vests no interest in the benefici- 
 
 ary. Sharp Ti. Brenneman,4i Iowa. 251. 
 See Bossean v, O'Brien, 4 Biss. (U. S.) 
 395; Treat v. Cells, 41 Cal. 202. 
 
 The mortgagee of a stock of goods 
 signed at the foot of the mortgage a 
 memorandum, whereby he appointed the 
 mortgagor his agent to sell and dispose 
 of and replace the stock. Held not to 
 make the mortgagor an agent of the 
 mortgagee for the purchase and sale of 
 goods, but to be merely a waiver of the 
 right to take possession. Barrett v. 
 Franklin, 14 R. I. 241. 
 
 In an action upon an account for mer- 
 chandise sold, where it is sought to con- 
 nect the defendant with the purchaser of 
 the goods by showing by circumstantial 
 evidence that the latter acted as defend- 
 ant's partner and general agent and 
 clerk, and that he ordered other goods 
 and signed defendant's name to notes, 
 and man'aged mills and threshing- 
 machines for defendant, it is error to ad- 
 mit in evidence, to show that defendant 
 bought the goods or ordered them to be 
 bought for him, notes given by defend- 
 ant to other parties, and notes made by 
 other parties to strangers, and an inter- 
 plea by defendant, claiming a threshing- 
 machine and its earnings, in a suit be- 
 tween the purchaser of the goods and a 
 third party. Field v. Stubblefield, 85 Mo. 
 
 A denial by an alleged principal of the 
 existence of any agency operates to 
 destroy any previous implication. Cir- 
 cumstances establishing the former impli- 
 cation serve then only to explain the im- 
 port of his answer. Norton w. Richmond, 
 
 93 111- 367- 
 
 1. Where a contract was made between 
 two parties, whereby the first party was 
 to purchase corn with money to be fur- 
 nished by the second party, the corn to be 
 the property of the second party, and the 
 cribs containing the same to be marked 
 with his name; and the corn v?as to be 
 sold by the second party, who was to re- 
 tain out of the proceeds the amount of 
 the original purchase-money, with inter- 
 est at eight per cent, and one cent per 
 bushel upon the corn so handled, all of 
 which the first party was to guarantee to 
 the second party, and to have the residue 
 of the proceeds as compensation for his 
 services, held that under the contract the 
 first party became the agent of the 
 second party, and that the money ad- 
 vanced to him under the contract was 
 not in the nature of a loan. Van Sandt 
 V. Dows, 63 Iowa, 594. 
 
 346 
 
Hasses of Agents. 
 
 AGENCY. 
 
 Classes of Agents, 
 
 Usual Course of Business. — An implied authority is limited by 
 the usual course of dealing as respects the particular agency, or 
 agencies of that character in general.^ 
 
 6. Classes of Agents. — According to the nature and extent of 
 the authority delegated to them, and the end sought to be accom- 
 plished by their appointment, agents are divided into several 
 classes, and their duties and liabilities vary with the extent of the 
 authority conferred and the objects for which they are appointed. 
 According to the character of their employment and the object 
 of their appointment they are called brokers — viz., stock brokers, 
 exchange and money brokers, real-estate and insurance brokers, 
 ship brokers, merchandise brokers, etc.;'-* auctioneers ;^ commis- 
 sion agents or factors;*' commercial travellers or drummers;^ 
 
 S. was appointed by B. his agent for 
 the sale of harvesters. S. was to pay 
 part in cash and part in notes at the de- 
 livery of the machines to him. The cash 
 paid by S. was to be deducted from the 
 ■cash received for sales, and his notes to 
 be taken up in exchange for notes given 
 •by customers to the , order of B. Held, 
 that the relation of principal and agent 
 existed between B. and S., and that the 
 transactions were not conditional sales, 
 and that S. was entitled to credit on his 
 notes for the value of machines recover- 
 ed from a party to whom S. had fraudu- 
 lently sold them. Bayliss v. Davis, 47 
 Iowa, 340. 
 
 1. Jonesw. Warner, 11 Conn. 48; U. S. 
 Life Ins. Co. v. Advance Co., 80 111. 549. 
 
 2. A broker is one who is engaged for 
 ■others in negotiating contracts relative 
 to property with the custody of which he 
 ■has no concern. One who negotiates 
 sales of grain or produce of others, with- 
 out having its possession, is a produce or 
 grain broker; and one who negotiates for 
 the sale of lands of others is a real-estate 
 broker. Braun v. Chicago, 5 Am. & 
 Eng. Corp. Gas. 298; s. c, no 111. 186; 
 Sibbald v. Bethlehem Iron Co., 83 N. Y. 
 378; Barnard w. Monnot, 34 Barb. (N. Y.) 
 
 ■go; Wyliew. Mar. Nat. Bank, 61 N.Y. 415; 
 Keys V. Johnson, 58 -Pa. St. 42; U. S. v. 
 Simons, i Abb. (U. S.) 470. See Bro- 
 kers. 
 
 3. An auctioneer is to a certain extent 
 a broker. He may, however, not buy, but 
 only sell, and that not at private sale but 
 only at a public auction. He is the 
 agent of both the buyer and the seller. 
 Story on Agency, § 27; Crandall v. State, 
 28 Ohio St. 479; Fretwell v. Troy, 18 
 Kans. 271; Goshen v. Kern. 63 Ind. 468; 
 s. c, 30 Am. Rep. 234. See AuCTlON- 
 
 •EERS. 
 
 4. The name commission agent is sy- 
 monymous with factor and means one who 
 
 receives goods, chattels, or merchandise 
 for sale, exchange, or other disposition, 
 and who is to receive a compensation for 
 his services. Perkins' v. State, 50 Ala. 
 154. He may sell in his own name. 
 Slack V. Tucker, 23 Wall. (U. S.) 321. 
 Or maintain an action for any damage 
 done to them while in his possession. 
 Robinson v. Webb, 11 Bush (Ky.), 464. 
 See Commission Agents; Factors. 
 
 5. Where an agent simply exhibits 
 samples of goods kept for sale by his 
 principal, and takes orders from pur- 
 chasers for such goods, which goods are 
 afterward to be delivered by the princi- 
 pal to the purchasers, and payment for 
 the goods is to be made by the purchas- 
 ers to the principal on such delivery, .such 
 agent is generally called a "drummer" 
 or commercial traveller. City of Kansas 
 V. Collins, 34 Kans. 434. 
 
 Such agent is neither a pedler nor a 
 merchant, so as to make him subject to 
 the payment of taxes under a city ordi- 
 nance; nor will a single sale and delivery 
 of goods by such agent, or by any other 
 person, out of the samples exhibited, or 
 out of any lot of goods, constitute such 
 agent or other person a pedler or a mer- 
 chant. Kansas v. Collins, 34 Kans. 436; 
 Exp. Taylor, 58 Miss. 478 ; Com. v. 
 Jones, 7 Bush (Ky.), 502; Com. v. Far- 
 num, 114 Mass. 267; Alcott v. State, 8 
 Blackf. (Ind.) 6; Colson v. State, 7Blackf. 
 (Ind.) 590; Merriam v. Langdotv, 10 Conn. 
 460; State V. Belcher, i McMul, (S. Car.) 
 40; Com. V. Ober, 12 Cush. (Mass.) 493; 
 Wynne v. Wright, i Dev. & B. (N. Car.) 
 L. 19; Page V. State, 6 Mo. 205; Cincin- 
 nati V. Bryson, 15 Ohio, 625; s. c, 45 
 Am. Dec. 593; Mays v. Cincinnati, i Ohio 
 St. 268; Fisher v. Patterson, 13 Pa. St. 
 338; Com; V. Willis, 14 Serg. & R. (Ga.) 
 398; State V. Hodgdon,4i Vt. 139; Whit- 
 field V. Longest, 6 Ired. (N. Car.) L. 268; 
 State V. City Council, 10 Rich. (S. Car.) 
 
 347 
 
General and Special Agents, 
 
 AGENCY. 
 
 General and Special Agents;. 
 
 clerks;^ mercantile agencies;'^ ship-masters ;^ ship-husbands;*- 
 attorneys at law and in fact ; * public agents or officers.® 
 
 6. General and Special Agents, — An authority is as to its extent 
 either general or special. General authority is an authority to act 
 in a certain character, and unless it is restricted to a smaller limit, 
 and the restriction is known or ought to be known to third parties^ 
 
 240; State V. Pinckney. 10 Rich. (S. Car.) 
 474; City Council v. Ahrens, 4 Strobh. 
 (S. Car.)24i; Keller w. State, 11 Md. 525; 
 s. c, 69 Am. Dec. 226; Woolman v. 
 StaSe, 2 Swan (Tenn.), 353; Higgins v. 
 Rinker, 47 Tex. 402; Chicago v. Bartee, 
 100 111. 57; Davis V. City of Macon, 64 
 Ga. 128. See Commercial Travellers. 
 
 1. Clerks are persons employed by a 
 merchant, manufacturer, or other person 
 to transact certain parts of the employ- 
 er's business, while the principal superin- 
 tends the whole. He always acts in the 
 name of the principal, and is authorized 
 to transact generally all such business as 
 is intrusted to him, and to bind his em- 
 ployer while he keeps within the bounds 
 of his express or implied authority. 
 Bouvier Inst. § 1287; Portland v. Lewis, 
 2 S. & R. (Pa.) 197; Eagle Bank v. Smith, 
 5 Conn. 71; 3. c, 13 Am. Dec. 37. 
 
 3. Their business is to collect informa- 
 tion as to the circumstances, standing, 
 and pecuniary ability of merchants and 
 dealers throughout the country, and 
 keep accounts thereof, so that the sub- 
 scribers to the agency when applied to 
 by a customer to sell goods to him on 
 credit may, by resorting to the agency or 
 to the lists which it publishes, ascertain 
 the standing and responsibility of the 
 customer to whom it is proposed to ex- 
 tend credit. A person furnishing infor- 
 mation to such an agency in relation to 
 his own circumstances, means, and pe- 
 cuniary responsibility can have no other 
 motive in so doing than to enable the 
 agency to communicate such information 
 to persons who may be interested in -ob- 
 taining it, for their guidance in giving 
 credit to the party; and if a merchant 
 furnishes to such an agency a wilfully 
 false statement of his circumstances 
 or pecuniary ability, with intent to ob- 
 tain a standing and credit to which he 
 knows that he is not justly entitled, 
 and thus to defraud whoever may resort 
 to the agency and, in reliance upon the 
 false information there lodged, extend a 
 credit to him, there is no reason why his 
 liability to any party defrauded by those 
 means should not be the same as if he 
 had made the false representation directly 
 to the party injured. Eaton v. Avery, 
 83 N. Y. 31; Genesee Sav. Bank v. 
 
 Barge Co., 52 Mich. 164. See Mercan- 
 tile Agencies. 
 
 3. The master of a ship is the persoa 
 who has command of her. The power 
 delegated to this agent depends upon the- 
 express authority given him. This au^ 
 thority extends generally to all the acts, 
 which are necessary to carry out the pur- 
 pose of a voyage or to employ the ship, 
 profitably. But he cannot perform acts 
 which from their nature cannot be neces- 
 sary forthis purpose— as, to sell the ship. 
 Bouvier Inst. § 1290; Johnson v. Win- 
 gate, 29 Me. 404. See Shipping. 
 
 4. The duties of a ship's husband are to- 
 see to the proper outfit of the vessel, that 
 she is properly repaired, prepared for the 
 voyage, and furnished with provisions andl 
 sea stores; to provide a proper master, 
 mate, and crew; to see that she has a 
 proper register and documents on board,, 
 and is duly cleared from the custom- 
 house; to engage and settle for freight 
 and adjust averages, to enter into charter- 
 parties for the employment of the ship; 
 and to settle and pay and keep a regular 
 account of all contracts, payments, and 
 receipts in the course of such employ- 
 ment. In relation to all these matters 
 he is the general agent of the owners. 
 Turner v. Burrows, 8 Wend. 144, 151. 
 See Shipping. 
 
 5. Attorneys at law are ordinarily in- 
 trusted with the management of suits and 
 controversies in courts of law and other 
 judicial tribunals; attorneys in fact are- 
 so-called in contradistinction to attor- 
 neys at law, and may include all other 
 agents employed in any business, or to. 
 do any act or acts in pais for another. 
 But it is sometimes used to designate- 
 persons who act under a special agency 
 or a special letter of attorney, so that 
 they are appointed in factum for the deed 
 or act required to be done. Story on 
 Agency, §§ 24, 25. See Attorneys. 
 
 , 6. A public office is a right to exer- 
 cise a public function or employment 
 and take the fees and emoluments be- 
 longing to it; and an officer is one who 
 is invested with an office. Olmstead v. 
 Mayor of N. Y., 42 N. Y. Super. Ct. 289; 
 Sauner v. State, 2 Tex. App. 458; Wood- 
 worth V. State, 26 Ohio St. 196. See 
 Municipal Corporations. 
 
 348 
 
General and Special Agents. 
 
 AGENCY. 
 
 TTniversal Agents, 
 
 carries with it all the ordinary powers incident to that character. 
 It is a delegation to do all acts connected with a particular trade, 
 business, or employment. 
 
 A special agent is one whose authority is confined to a particu- 
 lar or individual instance; but in another sense it may be said 
 that every express agency is special, because it specifies what is 
 to be done.i 
 
 Universal Agents. — General agents are to be carefully distin- 
 guished from universal agents ; that is, from agents who may be 
 appointed to do all the acts which the principal can personally 
 do, and which he may legally delegate the power to another to- 
 do. Such an agency may potentially exist, but it must be of the 
 very rarest occurrence. It is very certain that the law will not 
 from any general expressions, however broad, infer the existence 
 
 1. Story on Agency, § 58; Evans on 
 Ag., Ewell's Ed., 134. 135; Bouvier Law 
 Inst. 1298, I2gg; Beals v Allen, 18 Johns. 
 (N. Y.) 363: s. c. , 9 Am. Dec. 221; Mar- 
 tin V. Farnsworth, 49 N. Y. 555; Ladd 
 ■V. Franklin, 37 Conn. 53; Willard v. 
 Buckingham, 36 Conn. 395; Gulick v. 
 Grover, 33 N. J. L. 463; Dart v. Her- 
 cules, 57 111. 446; Baxter v. Lamont, 60 
 111. 237; U. S. Life Ins. Co. v. Advance 
 Co., 80 111. 549; Fatman v. Leet, 41 Ind. 
 133; Cruzan v. Smith, 41 Ind. 2S8; Pal- 
 mer V. Cheney, 35 Iowa, 281; Crescent 
 City Bank z'. Hernandez, 25 La. Ann. 43; 
 Lattomus v. Farmers' M. F. Ins. Co., 3 
 Hou-st. (Del.)404; Atlantic, etc., R. Co. v. 
 Reisner. 18 Kans. 458; Butler z'. Maples, 
 9 Wall. (U. S.) 766; Gelding v. Merchant, 
 43 Ala. 705. Compare Dickinson Co. v. 
 Miss. Valley Ins. Co., 41 Iowa, 286; 
 Leblanc v. Perron, 21 La. Ann. 26. 
 
 A special agency properly exists when 
 there is a delegation of authority to do a 
 single act. Story on Ag. § 17. 
 
 A special agent is one authorized to do 
 one or two special things, i Pars, on 
 Contr. 41. 
 
 A special agent is appointed only for 
 a particular purpose, and is invested 
 with limited powers. Chitty on Contr. 
 285. 
 
 The authority of an agent being limited 
 to a particular business does not make it 
 special; it may be as general in regard 
 to that as if the range of it were unlimit- 
 ed. Anderson -u. Coonley, 21 Wend. 
 (N. Y.) 279; Jeffrey v. Bigelow, 13 Wend. 
 (N.Y.) 51S; s. c, 28 Am. Dec. 478; Crain 
 V. First Nat. Bank. 114 111. 516; Rountree 
 V. Davidson, 59 Wis. 522; Bell v. Offutt, 
 ID Bush (Ky.), 632. 
 
 Brokers, factors, bank cashiers and 
 tellers, shipmasters, etc.. are, on account 
 of the character of their occupation, con- 
 sidered as general agents in the line of 
 
 their business. The extent of their au- 
 thority is regulated by usages and cus- 
 toms, and cannot be restricted by instruc- 
 tions from their principals, unless such 
 instructions are known to the third par- 
 ties dealing or contracting with them. 
 Nat. Furnace Co. v. Keystone Mfg. Co., 
 no 111. 427; Cameron v. Durkheim. 55. 
 N. Y. 425; Cooke v. State Nat. Bank, 52 
 N.Y. 96; Commercial Bankz/. Kortright, 
 22 Wend,. (N. Y.) 348; s. c. 34 Am. Dec. 
 317; Arnold v. Halenbake, 5 Wend. 
 (N. Y.) 33; Dows V. Greene, 16 Barb. 
 (N. Y. ) 72; Commercial Bank v. Norton. 
 
 1 Hill (N. Y ), 501; McEwen tj. Mont- 
 gomery, etc., Ins. Co., 5 Hill, lot; Ja- 
 ques V. Todd, 3 Wend. (N. Y.) 83; Minor 
 V. Mech. Bank, i Pet. (U. S.) 46, 70; 
 Fleckner v. U. S., 8 Wheat. (U. S.) 338; 
 Merchants' Bank v. State Bank, 10 Wall. 
 {U. S.) 604; Arthur v. Schooner Cassius. 
 
 2 Story (U. S.). 81; Cochecho Nat. Bank 
 V. Haskell, 51 N. H. 116; Hatch v. Tay- 
 lor, 10 N. H. 528; Planters' Bank v. 
 Cameron, 3 Sm. & M. (Miss.) 609: Wil- 
 kins V. Commercial Bank. 6 How. (Miss ) 
 217; Lansdale v. Shackleford, Walk. 
 (Miss.) 149; Wilcox V. Routh, 9 Sm. & 
 M. (Miss.) 476; Eagle Bank v. Smith, 5 
 Conn. 71; s. c, 13 Am. Dee. 37; Walsh 
 V. Pierce, 12 Vt. 130; Davis v. Water- 
 man. 10 Vt. 526; s. c, 33 Am. Dec. 216; 
 Gibbs V. Linsley, 13 Vt. 208; Cross v. 
 Haskins, 13 Vt. 536; Stothard v. AuU, 7 
 Mo. 318; St. John V. Redmond, 9 Port. 
 (Ala.) 428; Fisher z/. Campbell, 9 Port. 
 (Ala.) 210; Williams v. Mitchell, 17 Mass. 
 98; Lobdell J. Baker, i Mete. (Mass.) 
 193; s. i... 35 Am. Dec. 358; Odiorne o. 
 Maxcy, 13 Mass. 181; Rapp u. Palmer, 
 
 3 Watts (Pa.), 178; Lansatt v. Lippin- 
 cott, 6 S. & R. (Pa.) 386; Lyell v. San- 
 bourn. 2 Mich. 109; Longworth v. Con-" 
 well, 2 Blackf. (Ind ) 469; Frankfort 
 Bank v. Johnson, 24 Me. 490. 
 
 349 
 
General and Special Agents, 
 
 AGENCY. 
 
 How Principal Bound, 
 
 of any such unusual agency; but will rather construct them as 
 restrained to the principal business of the party, in respect to 
 which it is presumed his intention to delegate the authorit)'- was 
 principally directed.^ 
 
 How Principal Bound under General Authority. — An agent acting > 
 under a general authority binds his principal by any act done within 
 •the scope of his employment, even if done against instructions. 
 Secret instructions cannot affect third parties dealing with the 
 acrent.* 
 
 is to get ten per cent, is a general agent; 
 and if he takes usury, the presumption is 
 that the principal authorized it. Stevens 
 V. Meers, ii III. App. 138. • 
 
 The authority of a general agent is 
 measured by the usual scope and charac- 
 ter of the business he is empowered to 
 transact; and for any act done by him 
 which is natural and customary in the 
 management of such business, the prin- 
 cipal cannot avoid liability because of 
 any secret instructions or limitations im- 
 posed on the agent. If a married woman, 
 owning an equitable separate estate, in- 
 vests her money in a particular business, 
 which she authorizes her husband to con- 
 duct and manage as her general agent, 
 she cannot avoid liability for debt^s con- 
 tracted by him in the purchase of mer 
 chandise within the scope of the busi- 
 ness, in the natural and usual mode of 
 conducting such business, by alleging se- 
 cret authority and instructions to buy for 
 cash only. Louisville Coffin Co. v. Stokes, 
 78 Ala. 372; Nat. Furnace Co. v. Key- 
 stone Mfg. Co., no 111. 427. 
 
 An agent had authority to sell only for 
 cash. He did sell on credit, and the 
 goods were sent marked C. O. D. The 
 carrier delivered the goods without re- 
 ceiving the cash, on the written order of 
 the agent. Held, that the carrier, who 
 knew of the authority of the agent to sell, 
 was not affected by the limilation of 
 which he had no notice, and that the 
 mark C. O. D. did not put him on inquiry 
 as a matter of law. Daylight Burner Co. 
 V. Odlin, 51 N. H. 56; s. c, 12 Am. Rep. 
 
 45. 
 
 A corporation entered into a written 
 contract with an agent, by the terms of 
 which he guaranteed that his sales should 
 not be less than a certain sum for the 
 term of his employment, and that all 
 sales should be made to good and respon- 
 sible parties, and at not less than market 
 prices. Held, in an action against the 
 corporation tor the breach of a written 
 contract, made by its agent in its name, 
 to sell goods to the plaintiff, that the au- 
 thority of the agent was not limited by 
 the provisions in the contract between 
 
 1. Story on Agency, § 21. 
 
 2. Hatcht;. Taylor, 10 N. H. 538;TowIe 
 •u. Leavitt, 23 N. H. 360; s. c.,55 Am. Dec. 
 195; State V. Foster, 23 N. H. 348; s, c, 55 
 Am. Dec. 191; Commercial Bank v. Kort- 
 right, 22 Wend. (N. Y.) 348;'s. c, 34 Am. 
 Dec. 317; Johnson v. Jones, 4 Barb. (N. 
 Y.) 369; Dows V. Greene, 16 Barb. (N. 
 Y.)72; Angell v. Hartford Ins. Co., 59- 
 N. Y. 171; Barber v. Britton, 26 Vt. 112; 
 Walsh V. Pierce, 12 Vt. 130; Lobdell v. 
 Baker, I Mete. Mass. 193; s. c, 35 Am. 
 Dec. 358; Williams z/. Mitchell, 17 Mass. 
 98; Wilkins v. Commercial Sank, 6 How. 
 (Miss.) 217; Planters' Bank v. Cameron, 
 3 Sm. & M. (Miss. 1 609; St. John i/. Red- 
 mond, 9 Port. (Ala.) 428; Talmage v. 
 Bierhouse, 103 Ind. 270; Robbins v. Ma- 
 gee. 76 Ind. 381; Stothard v. Aull, 7 Mo. 
 318; Minter v. Pac. R. Co., 41 Mo. 503; 
 Eagle Bank v. Smith, 5 Conn. 71; s. c. , 
 13 Am. Dec. 37; Swazey v. Un. Man. 
 Co , 42 Conn. 556; Woodbury Sav. 
 Bank v. Charter Oak Ins. Co., 31 Conn. 
 529; Lyell V. Sanbourn, 2 Mich. 109; 
 Bell z/. 'Offutt, 10 Bush (Ky.) 632; Pal- 
 mer v. Cheney, 35 Iowa, 281; Nuss- 
 baum V. Heilbron. 63 Ga. 312; Thomp- 
 son V. Douglass, 64 Ga. 57; City Bank 
 of Macon v. Kent, 57 Ga. 283; Car- 
 michael u. Buck. 10 Rich. (S. Car.) 332; 
 s. u., 70 Am. Dec. 226; Sterling Bridge 
 Co. V. Baker, 75 111. 139; jEtna Ins. Co. 
 V. Maguire, 51 111. 342; Hartford Ins. 
 Co. V. Farrish, 73 111. 166; Rockford Ins. 
 Co. V. Nelson, 65 III. 415; Union M. L. 
 Ins Co. V. White, 106 111. 67; Houghton 
 w.' First Nat. Bank, 26 Wis. 663; Plant- 
 ers' Mut. Ins. Co. V. Lyons, 38 Tex. 253; 
 
 , Continental Ins. Co. v. Kasey, 25 Gratt. 
 (Va.) 268; Georgia, etc., Ins. Co. v. Kin- 
 nier, 28 Gratt. (Va.) 88; Walker v. Skip- 
 with, Meigs (Tenn.) 502; s. c, 33 Am. 
 Dec. 161; Kinealy v. Burd, 9 Mo. App. 
 35g; Chouteaux v. Leech, 18 Pa. St. 224; 
 s. c, 57 Am. Dec. 602; Bryant v. Moore, 
 26 Me. 84; s. c, 45 Am. Dec. 96; Allen 
 ■V. Ogden, i Wash. (U. S) 174; U. S. ^. 
 Howard, 7 Biss. (U. S.) 56. 
 
 One to whom money is intrusted lobe 
 loaned for the benefit of the principal, 
 without any restrictions, except that he 
 
 350 
 
Ceneral and Special Agents. 
 
 AGENCY. 
 
 Agent'B Own Declarations. 
 
 Agent's Own Declarations. — The authority of a supposed agent 
 cannot be established by his own declarations; but if the agency 
 is otherwise proved, such declarations are adrtiissible.^ 
 
 Ambiguous Authority. — If the instructions are given in such 
 uncertain terms as to be susceptible of two different meanings, and 
 the agent bona fide adopts one of them and acts upon it, it is 
 not competent lor the principal to repudiate the act as authorized 
 because he meant the instructions or orders to be read in another 
 sense of which they are equally capable.* 
 
 How Principal Bound by Special Agent. — The principal of a 
 special agent is only bound by acts of the agent which are strictly 
 
 him and the corporation, and such pro- 
 visions could not affect third persons; 
 and that evidence that the agent, in mak- 
 ing the sale to the plaintiff, violated such 
 provisions was inadmissible. Byrne v. 
 Ma. Packing Co., 137 Mass. 313. 
 
 Where a third party has notice of such 
 instructions, the principal will, of course, 
 not be bound. Stainer v. Tysen, 3 Hill 
 (N. Y.), 279; Barnard v. Wheeler, 24 Me. 
 412; Bryant v. Moore, 26 Me. 84; s. c, 
 45 Am. Dec. 96; Lpngworth v. Conwell, 
 2 Blackf. (Ind.) 469; Leathers v. Spring- 
 field, 65 Mo. 507. 
 
 1. Winch V. Baldwin, 28 N. W. Repr. 
 (Iowa) 62; Wood Mowing, etc., Co. v. 
 Grow, 30 N. W. Repr. (Iowa) 609; Hardy 
 V. Cheney. 42 Vt. 417; Lafayette, etc., 
 R. Co. V. Ehman, 30 Ind. 83; French v. 
 Wade, 35 Kan. 391; Bacon v. Johnson, 
 56 Mich. 182; McDonough v. Heyman, 
 38 Mich. 334; Grover & B. S. M. Co. v. 
 Polhemus, 34 Mich. 247 ; Haughton ii. 
 Maurer, 55 Mich. 323; Seymour v. Mat- 
 teson, 42 How. Pr. (N. Y.) 496; Rhodes 
 •V. Lowry, 54 Ala. 4; Baldwin v. Ashby, 
 54 Ala. 82. 
 
 Evidence of an agent's acts should not 
 ordinarily be admitted before his author- 
 ity is shown, though it is discretionary 
 with the court to perrpit it where author- 
 ity is to be shown by circumstances. 
 But it cannot be done in the case of sub- 
 agents. Turner v. Phoenix Ins. Co., 55 
 Mich. 236. 
 
 The testimony of a young man in the 
 employ of defendant, to the effect that 
 " he was authorized by defendant to say 
 if it was not all right to return it to de- 
 fendant and he would make it satisfac- 
 tory," where the court understood the 
 statement was offered as declarations or 
 admissions binding upon defendant, was 
 properly rejected where there was no 
 evidence that the young man had any 
 authority to receive or make such state- 
 ments. Bowker v. Delong, 141 Mass. 
 315- 
 
 Neither can the authority of an agent 
 be extended by his own unauthorized 
 statements; nor can the extent be proved 
 by such statements. Lycoming Ins. Co. 
 V. Jackson, 83 111. 302; Lycoming Ins. 
 Co. V. Ward, 90 111. 545; Maxcy v. 
 Heckethorn. 44 111. 437; Chicago, etc., 
 R. Co. V. Fox, 41 111. 106; Brigbam v. 
 .Peters, i Gray (Mass.), 139; StoUenmerck 
 V. Thacher, 115 Mass. 224; Lohner v. 
 Ins. Co., 121 Mass. 439; Carter v. Burn- 
 ham, 31 Ark. 212; Hcwe Mach. Co. v. 
 Clark, 15 Kans. 492; Dawson v. Lan- 
 dreaux, 29 La Ann. 363; Pecki/. Ritchey, 
 66 Mo. 114; Reynolds v. Coniinenial 
 Ins. Co., 36 Mich. 131; Grover & Baker 
 S. Mach. Co. V. Polhemus, 34 Mich. 247; 
 Hartford Ins. Co. v. Reynolds, 36 Mich. 
 502; Stringham v. St. Nicholas Ins. Co., 
 4 Abb. App. Dec. (N. Y.) 315; Mapp v. 
 Phillips, 32 Ga. 72; Galbreaih v. Cole, 
 61 Ala. 139. Compare Farmers, etc., 
 Bank v. Butchers, etc. , Bank, 16 N. Y. 
 125; s. c, 69 Am. Dec. 678. 
 
 2. Winne v. Niagara Ins. Co.. 91 N. 
 Y. 185; Johnson 2/. Jones, 4 Barb. (N. 
 Y.) 369; Longmire v. Herndon. 72 N. 
 Car. 629; Bessent v. Harris, 63 N. Car. 
 542; Long V, Pool, 68 N. Car. 479; 
 Mattocks V. Young. 66 Me. 459; Min- 
 nesota, etc., Co. V. Montague, 65 Iowa, 
 67; Foster v. Rockwell, 104 Mass. 167; 
 Mann v. Laws, 117 Mass. 293; Mech. 
 Bank v. Merch. Bank, 6 Mete. (Mass.) 
 13; Verv V. Levy, 13 Hpw. (U. S.) 345; 
 Marsh v. Whitmore, 21 Wal.(U. S.) 178; 
 Nat. Bank v. Merch. Nat.. Bank, 91 U. 
 S. 92; LeRoy v. Beard. 8 How. (U. S.) 
 451; Loraine v. Cartwright, 3 Wash. 
 (U. S.) 151; DeTastett v. Crousellatt, 2 
 Wash. (U. S.) 132; Ireland v. Living- 
 stone, L. R. 2 Q. B. 99, L. R. 5 Q. B. 
 516, 5 H. L. 395. See Brown v. Mc- 
 Gran, 14 Pet. (U. S.) 480. 
 
 An agent is not responsible for an 
 error in judgment where he does the 
 best he can. Long v. Poole, 68 N. Car. 
 479- 
 
 351 
 
General and Special Agents. 
 
 AGENCY. 
 
 How Principal Bound.. 
 
 in accordance with his authority, and a third party is bound at 
 his peril to ascertain the limit of the authority. ^ 
 
 1. Farmers', etc.. Bank v. Butchers', 
 etc.. Hank. i6 N. Y. 125; s i... 69 Am 
 Dec. 67S; Clarke Nat. Bank v. Bank of 
 Albion. 52 Barb. (N. Y.) 592; People 
 V. Bostwick, 43 Barb (N. Y.) 9; Eaton 
 V. Delaware, etc.. R. Co.. 57 N. Y. 282; 
 Craighead v. Peterson, 72 N. Y. 279; 
 Delafield v. Illinois, 26 Wend. (N. Y.) 
 193;' s. c, 2 Hill (N, Y.). 159; Andrews 
 V. Kneeland, 6 Cow. (N. Y.) 354; Stainer 
 V. Tysen, 3 Hill (N. Y.), 279; Munn v. 
 Commission Co., 15 Johns. (N. Y.) 44; 
 s. c. 8 Am. Dec. 219; Hovey v. Brown, 
 59 N. H. 114; Towle V. Leavitt, 23 N. H. 
 360; s. c, 55 Am. Dec. 195; Hatch v. 
 Taylor. 10 N. H. 53S; Jeffrey v. Hursh, 
 49 Mich. 39; Weaver v. Bechtel, 53 Mich. 
 516; Brown v. Johnson, 12 Sm. & M. 
 (Miss.) 398; s. c, 51 Am. Dec. 118; Fox 
 V. Fisk, 6 How. (.Miss.) 345; Carter v. 
 Taylor, 6 Sm & M. (Miss.) 367; Roberts 
 V. Rumley, 58 Iowa, 301; Lobdell v. 
 Baker, i Mete. (Mass.) 193; s. c, 35 Am. 
 Dec. 358; Snow z». Perry, 9 Pick. (Mass.) 
 539; Wood w. Goodridge. 5 Cush. (Mass.) 
 123; s. c, 52 Am. Dec. 771; Bliss v. 
 Cltirk, 16 Gray (Mass.). 60; Jackson v. 
 Badger, 26 N Western Repr. (Minn.) 
 908; Thomas v. Joslyn, 30 Minn. 388; 
 Siebold V. Davis, 25 N. Western Repr. 
 (Iowa), 77S: Hampton v. Moorhead, 62 
 Iowa, 91; Veeder v. McMurray, 23 N. 
 We-;tern Repr. (Iowa), 285; Rountree v. 
 Davidson. 18 N. Western Repr. (Wis.) 
 518; Campbell v. Campbell. 57 Wis. 
 288; Fisher v. Campbell. 9 Port. (Ala.) 
 210; Powell V. Henry. 27 Ala. 612; Bar- 
 ing ?/. Pierce, 5 Watts & S. (Pa.) 548; 
 s. c. , 40 Am. Dec. 534; Johnson v. Win- 
 gate, 29 .Me. 404; Thompson v. Stewart, 
 3 Conn. 171; s. c, 8 Am. Dec. 168; 
 Equitable Life Ass. Soc. v. Poe. 53 Md. 
 2S; Bryden v. Taylor, 2 Harr. & J. (Md.) 
 396; s. c. 3 Am. Dec. 554; Blaiie v. 
 Proudfit, 3 Call. (Va.) 207; s. c. , 2 Am. 
 Dec. 546; Gordon v. Buchanan, 5 Yerg. 
 (Term.) 71; Huntington v. Wilder, 6 Vt. 
 334; Brown ii. Frantum, 6 La. 39; Bank 
 of Hamburg t;. Johnson, 3 Rich. (S. Car.) 
 42; Tomlinson v. Collet. 3 Blackf. (Ind.) 
 436; Walker v. Skipwith, Meig, (Tenn.) 
 502; s. c, 33 Am. Dec. l6i; Schimmel- 
 pennich o. Bayard., i Pet. (U. S.) 264; 
 Parsons v. Armor. 3 Pet.. (U. S.) 413; 
 Un'.led States v Williams, i Ware (U.S.), 
 175; W.iters V. Brogden, i You. & Jerv. 
 457; Blackwell v. Krtcham. 53 Ind. 184 
 Taft V. Baker, 100 Mass. 08. 
 
 One buying an overdue note from an 
 Hgent is t^L-reby put on inquiry about the 
 extent of the agent's authority. Earp v. 
 Richardson, 81 N. Car. 5. 
 
 Receipting in a firm-name but in the- 
 form used by agents puts the person 
 making payment on inquiry as to the 
 authority to take the payment. Chase i/. 
 Buhl Iron Works, 55 Mich. 139. 
 
 A principal is not bound by the act 
 of a special agent when done in disregard 
 of his instructions, unless perhaps where- 
 the principal's own negligence has enabled, 
 the agent to perpetrate a fraud thereby. 
 Saginaw, etc., R. Co. v. Chappell. 56- 
 Mich. 190; Hall v. Parker. 37 Mich. 590;:- 
 Brown v. Judge of Probate. 42 Mich. 
 501; Atlas Mining Co. v. Johnston. 23. 
 Mich. 36; Trudo v. Anderson, 10 Mich. 
 357: Hutchings V. Ladd, 16 Mich. 493;, 
 Matter of Drips, 3 Pa. L. J. 87; Atlas. 
 Mining Co. v. Johnston, 23 Mich. 
 36. 
 
 The agent of a county to contract for 
 repairs on coimty buildings has no power 
 to bind the county to pay more in county 
 warrants than the cash value of the labor 
 and materials in United States currency; 
 and parties contracting with such agent 
 must take notice of the limits of his 
 authority. Barton -v. Swepston, 44 Ark.. 
 437- 
 
 The depositary of an escrow is a special 
 and not a general agent, and the person 
 dealing with him is bound to know the 
 extent of his powers. The delivery of 
 an escrow by the depositary to the grantee 
 named therein, without a. compliance 
 with the conditions, is not a delivery 
 with the assent of the grantor, and con- 
 veys no title. The authority of the de- 
 positary of an escrow is limited strictly 
 to the conditions of the deposit, a com- 
 pliance with which alone justifies its. 
 delivery. Land Co.. z/. Peck, 112 Ills. 
 408. 
 
 A principal executed a sealed note, ex- 
 pressed to be for "value received in 
 mule," with the name of the payee left 
 blank, and delivered it to her husband, 
 as her agent, to purchase a mule from a 
 certain drover whose name was forgotten. 
 The husband used the note in the pur- 
 chase of a horse of greater value from 
 another person. Held, that as to the 
 other parties to the note there was no 
 delivery, and the husband was alone liable 
 to the holder, even if no notice, other 
 than that expressed in the note, was 
 brought home to the holder that the note 
 was intended for another person. Mills 
 V. Williams. x6 S. Car. 593; Gourdin v. 
 Read. 8 Rich. (S. Car.) 230. 
 
 Where an agent witli only authority to 
 contract for the sale of musical instru- 
 ments, sold a piano, taking a note pay- 
 
'General and Special Agents. 
 
 AGENCY. 
 
 How Principal Bound. 
 
 As Held out to the World. — In case of special agency the princi- 
 pal will be bound to the extent of the authority he has held 
 out to the world as given to the agent. This will be the test 
 of the principal's responsibility, both in general and special agen- 
 cies.'^ 
 
 Knowledge of Extrinsic Facts. — Where the principal has clothed 
 his agent with power to do an act upon the existence of some ex- 
 trinsic fact necessarily and peculiarly within the knowledge of 
 ihe agent, and of the existence of which the act of executing the 
 power is itself a representation, a third person dealing with such 
 agent in entire good faith, pursuant to the apparent power, may 
 
 able to his principal therefor, and with- 
 out authority sold and indorsed it, and 
 the maker paid it to the indorsee, after 
 he had been notified by the payee not to 
 
 -do so, it was held that the payee could 
 recover of the maker, and the maker 
 
 -could also recover the money he had paid 
 the indorsee. M'Clure v. Evartson, 14 
 Lea (Tenn.), 495. 
 
 The defendants sent their agent for 
 the plaintiff (a physician), and clothed 
 him with authority to employ plaintiff to 
 
 -visit a boy, and though the agent was 
 told to inform the plaintiff that the de- 
 fendants would pay him for the first visit, 
 yet this the agent for some cause neglected 
 to do, and employed the plaintiff gener- 
 ally to attend the boy so long as he 
 might need medical aid. The law is well 
 settled that if an injury is to result to one 
 man from the omission or neglect of an 
 agent of another, the principal must be 
 held liable. In this cause the defendants, 
 through the neglect of their agent, caused 
 the services to be rendered upon their 
 credit, and the case is within the above 
 principle. Bennett, J., in Barber v. 
 Brittan, 26 Vt. 112. 
 
 A special agent may use the proper 
 means to effect the object of the agency 
 
 "unless specially restricted in the choice 
 of the means. Andrews v. Kneeland, 6 
 Cow. (N. Y.) 354; Anderson v. Coonley, 
 2iWend. (N. Y.)279; Sandfordi/. Handy, 
 23 Wend. (N. Y.) 260; Peck v. Harriott, 
 6 S. & R. (Pa.) 146; s. c, 9 Am. Dec. 
 415; Benjamin v. Benjamin, 15 Conn. 
 347; s. t., 39 Am. Dec. 384; Vanada w. 
 Hopkins, i J. J. Marsh (Ky.), 285; s. c, 
 ig Am. Dec. 92; Shackman v. Little, 87 
 Ind. 181; Star Line v. Van Vliet, 43 
 Mich. 364; Earnest v. StoUer, 2 McCrary 
 (U. S.), 380; State V. Gates, 67 Mo. 139; 
 Taylor v. Hudgins, 42 Tex. 244; Farrar 
 V. Duncan, 29 La. Ann. 126. 
 
 1. Story on Agencv, § 133; Jeffrey v. 
 Bigelow, 13 Wend. (N. Y.) 518; s.c, 28 
 Am. Dec. 478; Anderson v. Cooley, 21 
 Wend. (N. Y.) 279; North River Bank 
 
 V. Aymar, 3 Hill (N. Y.), 263; Delafield v. 
 Illinois, 26 Wend.(N.Y.) 192; Eilenberger 
 V. Protective F. Ins. Co., 89 Pa. St. 464; 
 Baring v. Pierce, 5 W. & S. (Pa.) 548; 
 s. c, 40 Am. Dec. 534; Briggs v. Large, 
 30 Pa. St. 291 ; City Bank of Macon v. 
 Kent, 57 Ga. 283; E)rumright i/. Philpot, 
 16 Ga. 424; s. c, 60 Am. Dec. 738; Put- 
 nam ». French, 53 Vt. 402; s. c. , 38 Am. 
 Rep. 682; Cutler v. Boyd, 124 Mass. 181; 
 Dresser Mfg. Co. v. Waterston, 3 Mete. 
 (Mass.) g; Snow v. Perry, 9 Pick. (Mass.) 
 53g. Towle v. Leavitt, 23 N. H. 360; 
 s. c. , 55 Am. Dec, igs; Hatch v. Taylor, 
 10 N. H. 538; McCoy v. McKowen, 26 
 Miss. 487; s. c, 59 Am. Dec. 264; Brown 
 ■u. Johnson, 12 Sm. & M. (Miss.) 398; s. 
 c, 51 Am. Dec. 118; Fox &. Fisk, 6 How. 
 (Miss.) 345; Johnson v. Wingate, 2g Me. 
 404; Keener w. Harrod, 2 Md. 63; s. c, 
 56 Am. Dec. 706; Powell v. Henry, 27 
 Ala. 612; Lake Shore, etc., R. Co. v. 
 Foster, 104 Ind. 2g3; Lawson z'. Chicago, 
 etc., R. Co., 64 Wis. 447; Lewis v. Far- 
 rell, 51 Conn. 216; Union, etc., Ins. Co. 
 V. Masten, 3 Fed. Repr. 881; Schimmel- 
 pennich v. Bayard, i Pet. U. S. 264. 
 
 When one holds another out to the 
 world as his agent, in determining the 
 liability of the principal the question is, 
 not what authority was intended to be 
 given to the agent, but what authority 
 was a third person dealing with him jus- 
 tified from the acts of the principal in 
 believing was given to him. Griggs v. 
 Selden, 58 Vt. 561; Walsh v. Hartford 
 Fire Ins. Co., 73 N. Y. 5. 
 
 Where a firm doing business in one 
 place take charge, under a chattel mort- 
 gage, of the business of an insolvent 
 debtor in another place and leave him to 
 carry it on in their name, it is not negli- 
 gence for others to sell to the agent on 
 the responsibility of the firm without 
 inquiring into the agent's authority; the 
 firm must take the risks of the arrange- 
 ment, which is of a questionable nature. 
 Banner Tobacco Co. v. Jenison, 48 
 Mich. 459. 
 
 353 
 
General and Special Agents. A GENC Y. How Principal Bound. 
 
 rely upon the representation, and the principal is estqpped from 
 denying its truth to his prejudice. ^ 
 
 Secret InstriLctions. — There is a distinction to be observed be- 
 tween the authority of a special agent, which the person dealing 
 with him not only has a right but is bound to know, and the 
 private instructions given him respecting the mode and manner 
 of executing his agency, intended to be kept secret and not com- 
 municated to those with whom he may deal, concerning which it 
 would of course be useless to inquire. Such private instructions 
 are not to be regarded as limitations upon his authority; and 
 notwithstanding he may disregard them, his act, if otherwise 
 within the scope of his agency, will be valid and binding on his 
 employer.^ 
 
 Determined by Usage. — If there be an invariable, certain, and 
 general usage or custom of any particular trade or place, the law 
 will imply on the part of one who employs another to contract 
 for him upon a matter to which such usage or custom has refer- 
 ence a promise for the benefit of the other party, in conformity 
 with such usage or custom ; provided, that_is, there be no express 
 stipulation between them which is inconsistent with such usage. 
 To be binding, however, such usage must be uniform and univer- 
 sal ; but when such invariable usage is proved, it is to be consid- 
 ered as the basis of Contract between the parties ; and their re- 
 spective rights and liabilities are held to be precisely the same as 
 if, without any usage, they had entered into a special agreement 
 to the like effect.^ 
 
 1. New York, etc., R. Co. ?/. Schuyler, Mo. 503;. Morton v. Scull, 23 Ark. 289; 
 34 N. Y. 30, 73; Gould V. Sterling, 23 Home Life Ins. Co. v. Pierce, 75 111. 426; 
 N. Y. 439-456. Anderson v. State, 22 Ohio St. 305; 
 
 If the art is within the apparent scope Palmer v. Cheney, 35 Iowa, 281; Furnas 
 
 of the agent's authority the principal is w. Frankman, 6 Neb. 429; Cruzan v. 
 
 bound. Continental Bank v National Smith, 41 Ind. 288; Abbott v. Rose, 62 
 
 Bank, 50 N, Y. 575; Cook v. State Nat. Me. 194; Golding v. Merchant, 43 Ala. 
 
 Bank, 52 N, Y. 96; Banks w. Everest, 35 705; Bell v. Offutt, 10 Bush (Ky.), 632; 
 
 Kan. 687; Fougnez/. Burgess, 71 Mo. 389. Butler v. Maples, 9 Wall. (U.S.) 766; 
 
 2. I Chitty on Contracts, p. 286; Barber Calais, etc., Co. v. Van Pelt, 2 Block 
 V. Britton, 26 Vt. 112; Tradesmen's Bank (U. S.), 372; Union Ins. Co. z/. Wilkin- 
 i/., Astor, II Wend. (N. Y.) 87; Hill v. son, 13 Wall. (U. S.) 222. 
 
 Miller. 76 N. Y. 32; Munn v. Commis- Plaintiff agreed to sell to defendant 
 
 sion Co., 15 Johns. (N. Y.) 44; s. c, 8 12,000 hop-poles. Two papers were pre- 
 
 Am. Dec. 219; Beals z/. Allen, 18 Johns, pared, one written by plaintiff and signed 
 
 (N. Y.)363; s. c, 9 Am. Dec. 221; Ros- by defendant's agent, the other a printed 
 
 siter V. Rossiter, 8 Wend. (N. Y.) 494; form filled up and signed by plaintiff, 
 
 s. c, 24 Am. Dec. 62; Commercial The agreement was stated substantially 
 
 Bank v. Norton, i Hill (N. Y.), 501; alike in each, with this exception: the 
 
 Lightbody v. North Am. Ins. Co., 23 former contained this clause, " No ob- 
 
 Wend. (N. Y.) 18; Exchange Bank -u. jection to any kind of cedar;" while the 
 
 Monteath, 26 N. Y. 505; Cosgrove v. latter required "said poles to be of yel- 
 
 Ogden, 49 N. Y. 255; Winne v. Niagara low cedar, first growth." Held, that as 
 
 Ins. Co., ^r N. Y. 185; Willard v. Buck- the agent had verbal authority to buy hop- 
 
 ingham, 36 Conn. 395; Hatch v. Taylor, poles, the blanks might be regarded in the 
 
 10 N. H. 528; Adams Exp. Co. w. Schles- nature of private instructions by which 
 
 singer, 75 Pa. St. 246; Reany v. Culbert- the public dealing with the agent would 
 
 son, 21 Pa. St. 507; Kinealy ». Burd, 9 not be bound. Hill z/. Miller, 76 N. Y. 32. 
 
 Mo. App. 359; Minter If. Pac. R. Co., 41 3. i Chitty's Cent. (Perkins' Ed.) 83. 
 
 354 
 
General and Special Agents. 
 
 AGENCY. 
 
 Power to Sell — to Collect. 
 
 Power to Sell — to Collect. — The power to sell does not neces- 
 sarily imply a power to collect, unless the agent is intrusted with 
 the delivery of the goods, or unless there are other circumstances 
 from which such power can be implied. ^ 
 
 See Randall v. Kehlor, 60 Me. 37; Win- 
 sor V. Dillaway, 4 Mete. (Mass.) 221; 
 Mixer v. Coburn, ii Mete. (Mass.) 559; 
 s. c, 45 Am. Dec. 230; Upton v. Suffolk 
 Mills, II Cush. (Mass.) 586; s. c, 59 Am. 
 Dec. 163; Day zi. Holmes, 103 Mass. 306; 
 Schnitzer v. Oriental Print Works, 114 
 Mass. 123; Daylight-Burner Gas Co. v. 
 Odlin, 51 N. a. 56; Crosby v. Fitch. 12 
 Conn. 410; s. t., 31 Am. Dec. 745; Wil- 
 Jard V. Buckingham. 36 Conn. 395; Mc- 
 Kinstry v. Peai^sall, 5 Johns. (N. Y.) 319; 
 Smith V. Tracy. 36 N. Y. 79; Shelton v. 
 Merchants' D. Co., 59 N. Y. 258; Sumner 
 w. Stewart, 69 Pa. St. 321; Rosenstock v. 
 Tormey, 32 Md. 169; Kraft </. Fanchir, 
 44 Md. 204; Frank v. Jenkins, 22 Ohio 
 St. 597; Anier. Cent. Ins. Co. v. McLan- 
 athan, 11 Kan. 533; Phillips v. Moir, 69 
 111. 156; Corbett v. Underwood, S3 111. 
 324; Strong v. Stewart, 9 Heisk. (Tenn.) 
 137; Raitt zj. Mitchell. 4 Camp 146; Sut- 
 ton V. Tatham, lo Adolph. cSr El. 27; Bay- 
 liffe V. Buiterworth, i Exch. 425; Jones 
 V. Bowden, 4 Taunt. B47. See Farmers, 
 etc., Bank v. Sprague, 52 N. Y. 605; 
 Boardman v. Gaillard, 60 N. Y. 617. 
 
 The general rule is, as to all contracts, 
 that the agent is authorized to do what- 
 ever is usual to carry out the object of 
 his agency, and it is a question for the 
 jury to determine what is usual. Benj. 
 on Sales (Bennet's Ed.), §624; Skinner 
 V. Gunn, 9 Port. (Ala.) 305; Gaines v. 
 McKinley, i Ala. 446; Sandford v. 
 Handy, 23 Wend. 260; Williamson v. 
 Canaday, 3 Ired. (N. Car.) L. 349; Wood- 
 ford V. McClenahan, 4 Gilm. (111.) Si's; 
 Peters v. Farnsworth, 15 Vt. 155; s. c, 
 40 Am. Dec. 671; Lane v. Dudley, 2 
 Murph. (N. Car.) 119; s. c, 5 Atn. Dec. 
 523; Ala. Gr. So. R. v. Hill, 76 Ala. 303. 
 
 In an action for the breach of a written 
 contract, made by an agent of the defend- 
 ant in another State, for the sale of goods 
 to the plaintiff, evidence of a custom 
 among dealers in such goods in this com- 
 monwealth to accept or reject contracts 
 made by their selling agents is inadmissi- 
 ble, in the absence of evidence that such a 
 custom was known in the place where the 
 contract was made, or that any notice of 
 it was given to the plaintiff. Byrne v. 
 Ma. Packing Co., 137 Mass. 313. 
 
 But the usage must not be repugnant 
 to the terms of the contract, nor incon- 
 sistent with a rule of the common law on 
 the subject. Boardman v. Spooner, 13- 
 
 Allen (Mass.), 353; Dickinson v. Gay, 7 
 Allen (Mass.), 29; Dodd v. Farlow, 11 
 Allen (Mass.), 426; Haskins v. Warren, 
 115 Mass 514.^ 
 
 If the power of the agent is created by 
 a written instrument, and that known to 
 the party with whom the contract is 
 made, it cannot be enlarged by evidence 
 of usage. Delafield v. Illinois, 26 
 Wend (N. Y.) 192. Compare Le Roy v. 
 Beard, 8 How. (U. S.) 451. 
 
 A formal instrument, delegating pow- 
 ers, is ordinarily subject to a strict inter- 
 pretation, and the authority is not ex- 
 tended beyond that given in terms, or 
 which is necessar}' to carry into effect 
 that which is expressly given. Craighead 
 V. Peterson, 72 N. Y. 279; Bissell v. 
 Terry, 69 111. 184; Neal v. Patten, 40 
 Ga. 363. 
 
 Where the extent of the power of an 
 agent may be known by public records, 
 as in the case of public officers, any re- 
 striction on his powers so created will be 
 binding. Woodward v. Campbell, 39 
 Ark. 580; Sprague v. Cornish, 59 N. H. 
 142; Lewis V. Commissioners, 12 Kans. 
 186; N. Y. , etc.. Steamship Co. v. Har- 
 rison, 16 Fed. Repr, 688. 
 
 1, Authority to sell land on credit does 
 not imply authority to receive payment 
 for it. Mann v. Robinson, 19 W. Va. 49; 
 s. c, 42 Am. Rep. 771. 
 
 Unless a principal has held his selling 
 agent out to the buyer as having author- 
 ity to collect, a payment to the agent is 
 not good. Clark v. Smith, 88 111. 29S. 
 
 If there is an expressed or implied notice 
 to the purchaser, a payment to the agent 
 will not be binding on the principal, as in 
 the case of brokers. Higgins v. Moore, 
 34 N. Y. 417; Wright v. Cabot, 89 N. Y. 
 570; Crosby v. Hill, 39 Ohio St. 100; 
 Graham v. Duckwall, 8 Bush (Ky.), 12. 
 Or salesman on commission, who has not 
 possession of the goods. Seiple v. Irwin, 
 30 Pa. St. 513. Or where a printed notice 
 on bill-head gives notice that salesmen 
 are not authorized to collect. Law v. 
 Stokes, 32 N.J. L. 249; McKindlyz/. Dun- 
 ham, 55 Wis. 515; s. c, 42 Am. Rep. 740. 
 Or travelling salesmen who sell goods by 
 sample or solicit orders to be sent to 
 their principals for approval, and to be 
 filled by them if accepted. Korneman u. 
 Monaghan. 24 Mich. 36; Butler v. Dor- 
 man. 68 Mo. 298; s. c, 30 Am. Rep. 795; 
 McKindly v. Dunham, 55 Wis. 515; s. c, 
 
 855 
 
General and Special Agents, 
 
 AGENCY. 
 
 Power to Sell— to Collect. 
 
 Agent in Possession of Goods. — Where the goods sold are in the 
 hands of the agent and delivered by him, a power to receive pay- 
 ment is generally implied.* 
 
 Power to Sell and to Collect. — Where an agent is authorized to 
 •sell and to collect he must follow his instructions, and if so in- 
 structed must receive his payment in cash. No other -mode of 
 payment will be implied.** 
 
 42 Am. Rep. 740; Clark v. Smith, 88 111. 
 298; Abrahams v. Weiller, 87 111. 179; 
 Higginsz'. Moore, 34 N. Y. 417; Green- 
 leaf V. Egan, 30 Minn. 316; Janney v. 
 Boyd, 30 Minn. 319; Chambers v. Short, 
 •79 Mo. 204; Kohn V. Washer, 64 Tex. 
 131; Greenhood v. Keator, 9 III. App. 
 183. Consequently where an agent hav- 
 ing authority to sell, but having neither 
 the possession nor the indicia of the prop- 
 •erty, sells in his own name without dis- 
 closing his principal, the purchaser may 
 ■not set off a debt due him from the 
 agent in an action by the principal for the 
 contract price. Bernshouse v. Abbott, 
 45 N. J. L. 531; s. c. 46 Am. Rep. 789. 
 
 An agent selling goods only by sample, 
 and forbidden to receive payment, sold 
 goods on a credit of four months. Six 
 days thereafter he drew in his own name 
 for part of the price, which was paid. 
 The money not being paid to the princi- 
 ■pal, held, that the payment did not pro- 
 tect the purchaser. Butler v. Dorman, 
 .68 Mo. 298; s. c, 30 Am. Rep. 795. 
 
 Under a contract of agency for the sale 
 of pianos, it was required that all orders 
 ■should be sent to the principal to be filled 
 by him. The agent had possession of a 
 piano Under a special contract of bail- 
 ment, which he sold. Held, the pur- 
 chaser, having knowledge of agency, was 
 chargeable with notice of its terms, and 
 acquired no title as against the principal. 
 ■Cummins». Beaumont, 68 Ala. 204. 
 
 The employment of a canvassing agent 
 for the sale of books by subscription con- 
 fers no authority to receive payment for 
 books sold but not delivered by him, not 
 ever in his possession. Chambers v. 
 Short, 79 Mo. 204. 
 
 An agent to sell imports has power t<: 
 receive payment unless the buyer had no- 
 tice to the contrary. Collins v. Newton, 
 7 Baxt. (Tenn.) 269. 
 
 1. In Seiple v. Irwin, 30 Pa. St. 513, 
 the court said : " It is undeniably that 
 an agent to whom merchandise has been 
 . intrusted with authority to sell and de- 
 liver it, is authorized to receive the price." 
 
 An agent sold a new safe and took an 
 old one in part payment, which was ac- 
 cepted by the principal and the new one 
 sent, ffeld, that the agent had implied 
 
 power to receive payment for the safe. 
 Harris v. Simmerman, 81 111. 413. 
 
 Authority given to an agent to make a 
 contract for tlie sale of lands will author- 
 ize him also to receive so much of the 
 purchase-money as is to be paid in hand 
 on the sale, as an incident to the power 
 to sell. Alexander v. Jones, 64 Iowa, 
 207; Peck V. Harriott, 6'S. & R. (Pa.) 
 146; s. c, 9 Am. Dec. 415; Yerbey v. 
 Grigsby, 9 Leigh. (Va.) 387; Johnson v. 
 McGruder, 15 Mo. 365 ; Hackney v. 
 Jones, 3 Humph. (Tenn.) 612; Higgins 
 V. Moore, 6 Bosw. (N. Y.) 344; Goodale 
 V. Wheeler, 11 N. H. 424; Hoskins. v. 
 Johnson, 5 Sneed (Tenn.), 469. 
 
 2, Falls V. Gaither, g Port. (Ala.) 605; 
 Broughton v. SiUoway, 114 Mass. 71; s. 
 c, 19 Am. Rep. 312; Burks v. Hubbard, 
 69 Ala. 379. 
 
 Authority under seal to sell and con- 
 vey land for cash empowers the agent to 
 receive in cash the purchase-money when 
 the sale is made. Mann v. Robinson, 19 
 West Va. 49; s. c, 42 Am. Rep. 771; 
 Peck v. Harriott, 9 Serg. & R. (Pa.) 146; 
 s. c, 9 Am. Dec. 415. But not to take 
 merchandise in payment. Lumpkin v. 
 Wilson, 5 Heisk. (Tenn.) 555 ; Taylor 
 V. Starkey, 59 N. H. 142 ; Rhine v. 
 Blake, 59 Tex. 240. Nor other land. 
 Reese v. Medlock, 27 Tex. 120. Nor 
 to mortgage the property, Switzer v. 
 Wilvers, 24 Kan. 384; s. t., 36 Am. 
 Rep. 259; Wood V. Goodridge, 6 Cush. 
 (Mass.) 117 ; s. t.,- 52 Am. Dec. 771; 
 Jeffrey v. Hursh, 49 Mich. 31; Morris v. 
 Watson, 15 Minn. 212. 
 
 An agent with power to sell and re- 
 ceive payment for his principal cannot, 
 in general, compound with his principal's 
 debt6r,and receive payment by cancelling 
 his own debt, unless the power be con- 
 ferred, or results from the general usage 
 of the business or the habits of dealing 
 between the parties. Belton Compress 
 Co. V. Belton Brick Mfg. Co., 64 Tex. 
 
 337. 
 
 But where A gaye B a power of attor- 
 ney to sell and convey land, B conveyed 
 the land to C, and under an arrangement 
 contemporaneously made, whereby D was 
 to make a loan to C to enable him to 
 pay for the land, took notes and a mort- 
 
 356 
 
General and Special Agents. 
 
 AGENCY. 
 
 Power to Collect. 
 
 Power to Collect.^So must an agent to collect follow his in- 
 structions strictly.^ 
 
 gage from C payable to himself (B), and 
 immediately indorsed the notes and as- 
 signed the mortgage in his individual 
 capacity to D, and received the money, 
 held, it was a sale for cash, and not a 
 barter, nor sale on time. Plummer v. 
 Buck, i6 Neb. 322. 
 
 1. He is not authorized to release. 
 McHany v. Schenck, 88 111. 357; Mel- 
 vin V. Lamar Ins. Co., 80 111. 446; 
 Herring v. Farrell, 74 N. Car. 588. 
 Nor to receive merchandise or other 
 property or other evidences of debt in 
 payment. Padfield v. Green, 85 111. 529; 
 Reynolds v. Ferree, 86 111. 570; Rhine v. 
 Blake, 59 Tex. 240; Rodgers v. Bass, 46 
 Tex. 505; Aultman v. Lee, 43 Iowa, 404; 
 Drain v. Doggett. 41 Iowa, 682; Taylor 
 V. Robinson, 14 Cal. 396; Earnhardt a. 
 Robertson, 10 Ind. 8; Kirk v. Hiatt, 2 
 Ind. 322; Wiley v. Mahood, 10 W. Va. 
 206; McCulloch V. McKee, 16 Pa. St. 
 289; Woodbury v. Larned, 5 Minn. 339. 
 
 But while it is a well established rule 
 that an agent having a money demand 
 for collection is authorized to receive 
 nothing but money in payment, unless 
 specially authorized by his principal so 
 to do, yet, where the agent is a bank of 
 deposit, it may receive its own certifi- 
 cates of deposit as money, and its princi- 
 pal will be bound by such payment, and 
 the debtor discharged thereby, even 
 though the bank soon afterwards be- 
 comes insolvent and never remits to its 
 principal. Whether the result would be 
 different in case the debtor knew at the 
 time that the bank was insolvent is not 
 decided. But especially is the principal 
 bound by such payment where the agent 
 bank, as in this case, was also a bank of 
 exchange, and the principal had directed 
 it to remit by draft on New York; for in 
 such case it must be presumed that the 
 principal expected that the draft of its 
 agent would be sent; and its failure to 
 send the draft was the failure of its own 
 agent, and the debtor should not suffer 
 for its default. British, etc., Co. v. Tib- 
 balls, 63 Iowa, 468. 
 
 An agent to collect a debt payable in 
 a particular sort of currency has no 
 power to receive payment in any other 
 kind of currency; and if loss ensues he 
 will be liable, even where the currency he 
 receives is the only currency circulating 
 at the time and place of collection. Man- 
 gum V. Ball, 43 Miss. 288. 
 
 An agent having authority to collect a 
 debt will not be presumed to have the 
 right to take, as payment of such debt, 
 
 the note of the debtor payable to himself; 
 and the principal, having repudiated the 
 unauthorized act. may sue on the original 
 debt. One cannot bind his principal by 
 any arrangement short of an actual collec- 
 tion of the money. Robinson v. Ander- 
 son, 106 Ind. 152; McCormick v. Wood, 
 etc., Co., 72 Ind. 518; O'Conner v. Ar- 
 nold, 53 Ind. 203. He may not receive 
 notes in payment of a bond. Mathews 
 V. Hamilton, 23 111. 470. Nor indorse 
 the principal's name on checks received 
 in payment. Millard v. Republic Bank, 
 3 McA. (D. C.) 54; Robinson v. Chemical 
 Bank, 86 N. Y, 404; Graham v. U. S. Sav. 
 Inst., 46 Mo. 186; McClure v. Evartson, 
 14 Lea (Tenn.), 495. 
 
 A power to collect a mortgage does not 
 authorize an extension of time of pay- 
 ment. Ritch V. Smith, 82 N. Y. 627; 
 Hutchins v. Munger, 41 N. Y. 155. See 
 Gerrish v. Mahor, 70 111. 470; Chappel 
 V. Raymond, 20 La. Ann. 277. Nor does 
 power to receive a note in payment of 
 an account imply power to dispose of it. 
 Hays V. Lynn, 7 Watts (Pa.), 524. 
 
 Authority to settle for inland exchange 
 does not authorize the acceptance of the 
 bill of exchange of an insolvent drawer. 
 Goldsborough v. Turner, 67 N. Car. 403. 
 See Osborne. 7/. Rider, 62 Wis. 235. 
 
 An agent to collect a note has no power 
 to sell it. Smith v. Johnson. 71 Mo. 382. 
 See Hannon v. Houston, 18 Kans. 561. 
 
 Full power to act for the principal in 
 settling an account will, however, au- 
 thorize the agent to receive personal 
 property in settlement. Oliver v. Sterl- 
 ing, 20 Ohio St. 391. But not to pur- 
 chase more of the debtor's property than 
 is necessary to cancel the debt, when by 
 so doing he creates a debt against the 
 principal. Pollock v. Cohen, 32 Ohio 
 St. 514. 
 
 An attorney having in charge certain 
 notes for collection and settlement cannot, 
 without his client's consent, include in 
 the settlement other notes not in his 
 hands. Melcher v. Exchange Bank, 85 
 Mo. 362. 
 
 Authority to receive the whole of a. 
 debt implies power to receive part. Whe- 
 lan V. Reilley, 61 Mo. 565. 
 
 Authority delegated by a creditor to 
 an agent to collect and settle a debt 
 leaves the medium of payment largely at 
 the agent's discretion, but it does not ex- 
 tend to a settlement which the debtor 
 knows will inure entirely to the benefit 
 of the agent. So where the debtor con- 
 tracted with an agent who was authorized 
 
 I C. 0/ L. — 24 
 
 357 
 
General and Special Agents. 
 
 AGENCY. 
 
 Power to Sell— to Warrant. 
 
 Power to Sell — to Warrant. — A general agent appointed to sell 
 merchandise has, according to usage, power to warrant the quality 
 of the article sold ;^ but a person not the general agent of the 
 
 to collect a debt that he would deliver 
 timber at the agent's mill, for the agent's 
 individual use, which was to be applied 
 in payment of the debt, held, that the 
 delivery of the timber under this contract 
 does not discharge the debt due the 
 principal. Williams v. Johnston, 92 N. 
 Car. 532. 
 
 A power to cancel a mortgage and the 
 noies secured thereby and to take new 
 notes anil a new mortgage does not au- 
 thorize the cancellation without taking the 
 renewals. Foster z/. Paine, 56 Iowa. 622. 
 
 An attorney authorized to receive the 
 interest on a bond and mortgage has no 
 implied authority to receive the prin- 
 cipal. Brewster v. Carnes, 8 Eastn. 
 Repr. (N. J.) 433. 
 
 Power to receive certain chattels is no 
 proof of authority to dispense with their 
 delivery. Boyett v. Braswell, 72 N. Car. 
 260- ' 
 
 A power to collect debts with authority 
 to make, seal, and execute all releases 
 and conveyances made necessary in con- 
 sequence of the payment of such debts 
 dO', snot give authority to sell real estate. 
 Berry v. Harnage, 39 Tex. 638. 
 
 A general power to collect implies 
 power to sue. iMcMinn v. Richtmver, 3 
 Hill (N.Y.). 236; Brush v. Miller. 13 Barb. 
 (N. Y) 481; Scott V. Elmendorf, 12 
 Johns. (N. Y.) 317; Hirschfield v. Land- 
 man, 2 E. D. Smith (N. Y.), 208; NeiUe 
 V. U. S., 7 Ct. of CI. 535; Joyce v. Du- 
 plessis, 15 La Ann. 242; s. c, 77 Am. 
 Dec. 185; Moore v. Hall, 48 Mich. 143; 
 And to attach. De Poret v. Gusman, 
 30 La Ann. pt. 2,930. 
 
 A collecting agent may sue in his own 
 name on a' note indorsed in blank. Boyd 
 V. Corbitt, 37 Mich. 52; Hazewell v. 
 Coursen, 45 N. Y. Super. Ct^ 22. But 
 he cannot do so if the note is not in- 
 dorsed. Padfield v. Green, 85 111. 529. 
 
 Where the investment of money is the 
 object of a power of attorney, and the 
 attorney is authorized thereby to use the 
 principal's signature and seal, when 
 necessary or proper, in the transaction 
 of the business of the principal, the agent 
 has authority to reassign a bond, assigned 
 as collateral security for a loan of the 
 moneys of his principal, upon payment 
 of the loan. Feldman v. Beier, 75 N. Y. 
 
 893- 
 
 1. McCormick v. Kelly, 28 Minn. 135; 
 Deering v. Thom, 29 Minn. 120; Upton 
 V. Suffolk Co. Mills, ii Cush. (Mass.) 
 
 586; s. c, 59 Am. Dec. 163; Randall v. 
 Kehlor, 60 Me. 37; =. t., 11 Am. Rep. 
 169; Bryant v. Moore, 26 Me. 84; s, c,, 
 45 Am. Dec. 96; Nelson v. Cowing, 6 
 Hill (N. Y.), 336; Smith v. Tracy, 36 
 N. Y. 82; Tice v. Gallup, 2 Hun (N. Y.), 
 446,; Murray v. Brooks, 41 Iowa, 45; 
 Boothby ?■. Scaler, 27 Wis. 626; Deming 
 V. Chase, 48 Vt. 3S2; Fay v. Richmond, 
 43 Vt. 25; Huguley v. Norris. 65 Ga. 
 666; Dayton v. Hooglund, 39 Ohio St. 
 671; Palmer v. Hatch, 46 Mo. 585; Vic- 
 tor, etc., Co. V. Rheinschild, 25 Kan. 
 534; Schurhardt v. Aliens, i Wall. (U. S.) 
 359; Croom V. Shaw, i Fla. 211; Apple- 
 gate V. MoiBit, 60 Ind. 104;. Hunter v. 
 Jameson, 6 Ired. (N. Car.) 252; Ezell v. 
 Franklin, 2 Sneed (Tenn ). 236; Bradford 
 V. Bush, 10 Ala. 386; Dingle v. Hare, 7 
 C. B. N. S. 145. 
 
 An agent upon whom general author- 
 ity to sell is conferred will be presumed 
 to have authority to warrant unless the 
 contrary appears. It will be presumed, 
 in the absence of a showing to the, con- 
 trary, that a warranty is not an unusual 
 incident to a sale by an agent for a dealer 
 in a commodity, where the thing sold is 
 not present and subject to the inspection 
 of the purchaser. Talmage v. Bierhause, 
 103 Ind. 270. 
 
 Where one having general authority to 
 solicit orders for plaster busts, but no 
 authority to guarantee satisfaction, took 
 an order with the understandinir that the 
 party ordering would not be obliged to 
 accept it if not satisfied, and the bust was 
 refused as unsatisfactory, held, that the 
 general authority of the agent would seem 
 to be sufficient to enter jnto such a con- 
 tract; still, if the authority was not suffi- 
 cient, the result would be that there was 
 no special contract; and as the defendant 
 had not accepted the bust, there was no 
 sale. Zaliski v. Clark, 44 Conn. 218 
 
 An agent has no implied authority to 
 warrant where the property is of a de- 
 scription not usually sold with warranty. 
 Smith V. Tracy, 36 N. Y. 79. 
 
 A general selling agent has no author- 
 ity to warrant that flour will keep sweet 
 during a voyage from Massachusetts to 
 California. Upton w. Suffolk Co. Mills, 
 II Cush. (Mass.) 586; s. c, 59 Am. Dec. 
 163. 
 
 A general agent has no implied author- 
 ity to warrant iron safes to be burglar- 
 proof in the absence of express authority, 
 unless there existed at the time of the 
 
 358 
 
General and; Special Agents. 
 
 AGENCY. 
 
 Power to Sell, 
 
 principal, who has the naked power to sell a chattel, has no such 
 authority.^ 
 
 Power to Sell.— An agent empowered to sell may rescind a sale 
 or make a different one.* 
 
 Authority to sell at once at a certain price does not imply a 
 
 sale a custom in tlie sale of safes to so 
 warrant them. Herring v. Skaggs, 73 
 Ala ) 446 
 
 An agent intrusted with harvesters to 
 sell may give a reasonable opportunity 
 to try it. and make a contract to take 
 effect as a sale if it prove satisfactory. 
 Deering v. Thorn, 29 Minn. 120; McCor- 
 mick V. Kelly, 2S -Minn. 135; Murray v. 
 Brooks, 41 Iowa. 45; Boothby v. Scales, 
 27 Wis. 626; The Monle Allegre, 9 
 Wheat. (U. S.) 6t6. 
 
 An agent intrusted with personal 
 property to sell may make a conditional 
 sale on trial, or a contract to take effect 
 as a sale, in case the article on trial work 
 satisfactorily. Oster v. Mickley, 28 N. 
 Westn. Repr. (Minn.), 710. 
 
 One selling by sample has authority 
 to warrant the goods shall be like sam- 
 ple. Murray v. Smith, 4 Daly (N. Y.), 
 277; Andrews v. Kneeland, 6 Cow. 
 (N. Y.)354; Schuchardt v. Aliens, i Wall. 
 (U. S) 359; Dayton v. Hooglund, 39 
 Ohio St. 671. But not to warrant against 
 seizure for violation of revenue laws. 
 Palmer z/. Hatch, 46 Mo. 585. Nor that 
 the principal will not sell to others goods 
 of the same kind at a less price. Ander- 
 son V. Bruner, 112 Mass. 14. 
 
 Authority to sell threshing-machines 
 on trial, to be returned if not satisfactory, 
 empowers the agent to waive .such return. 
 Pitsinowski v. Beardsley, 37 Iowa, 9. 
 
 A power to sell negotiable paper im- 
 plies the power to certify that It is regu- 
 lar. Ahern v. Goodspeed, 72 N. Y. 108; 
 Ferguson v. Hamilton, 35 Barb: (N. Y.) 
 427. 
 
 A broker has no implied power to 
 warrant bank stock sold by him. Smith 
 V. Tracy, 36 N. Y. 79. He cannot war- 
 rant that it vvill be paid at maturity. 
 Graul V Strutzel, 53 Iowa. 712. 
 
 An agent with authority to sell land 
 may warrant against the lawful claims of 
 all persons claiming under the principal. 
 Ward V. Bartholomew, 6 Pick. (Mass.) 
 409; Blackman v. Charlestown, 42 N. H. 
 125. But he may not warrant the quality 
 and quantity of the land. Nat. Iron Co. 
 V. Bruner, 4 C. E. Green (N. J ) 331. 
 
 1. Perrine v. Cooley, 42 N. J. L 623; 
 s. c. 32 Am. Rep. 210; Scott v. McGrath, 
 7 Barb. (N. Y.) 53; Decker v, Fredericks, 
 47 N. J. L. 469; Brady v. Todd, 9 C. B. 
 N. S. 592. 
 
 A vendor of a horse, sold by his agent 
 authorized merely to sell for a fixed sum, 
 is not responsible for a breach of a war- 
 ranty made by such agent, and the inno- 
 cent vendor is not liable in an action for 
 deceit brought for the fraudulent repre- 
 sentation of his agent. Although the 
 principal may have knowledge of defects- 
 in the horse, he is not bound to disclose 
 them, and is an innocent vendor unless- 
 he authorized the agent to make misrep" 
 resentations or use some artifice to con^ 
 ceal defects. Decker v. Fiedericks, 47 
 N. J. L. 469. 
 
 In a few cases it has, however, been 
 held that a special agent for the sale of a 
 horse has power to warrant, unless he is 
 expressly forbidden. Deming v. Chase, 
 48 Vt. 382; Milburn v. Bel oni. 34 Barb, 
 (N. Y.)6o7; Tice & Gallup, 2 Hun(N. V.), 
 446; Gaines v. McKinley, i Ala. 446; 
 Skinner v. Gunn, 9 Port. (Ala.) 305; 
 Bradford v. Bush, 10 Ala. 390; Cocke v. 
 Campbell, 13 Ala. 286. 
 
 If a person who constitutes another 
 his agent for the sale of any article of 
 merchandise furnishes him with the kind 
 of warranty he is to give, a purchaser 
 who has knowledge that such a warranty 
 was furnished the agent cannot accept a- 
 parol warranty from the agent different 
 in its terms and require the principal to- 
 comply with snch oral warranty. Wood 
 Mowing, etc., Co. v. Crow, 30 N. Westn, 
 Repr. (Iowa), 6og 
 
 An auctioneer cannot warrant the 
 quality of the goods sold. He has only 
 power to sell, not to warrant. The Monte 
 Allegre, 9 Wheat. (U S.)6i6, 647; Blood 
 V. French. 9 Gray (Mass.), 197. 
 
 An agent authorized to sell a claim due 
 by judgment- on execution does not 
 authorize a guaranty of the validity of the 
 claims proposed for sale. Lipscomb v, 
 Kitrell, 11 Humph. (Tenn.) 256. 
 
 2. Sott V. Wells, 6 Watts & S. (Pa.> 
 357; s. c. , 40 Am. Dec. 568: Anderson 
 V. Coonley, 21 Wend. (N. Y.) 279; Vic- 
 tor, etc., Co. V. Rheinschild, 25 Kans, 
 
 534- 
 
 And the principal will be liable to re- 
 fund the money paid. Bloomer v. Den- 
 man, 12 111. 240. 
 
 But not after the sale is executed. 
 Adrian v. Lane. 13 Shand (S. Car.) 183;; 
 Saladin v Mitchell, 45 III. 79: Luke v^ 
 C^rigg, 30 N. Western Repr. (Dak.) 170, 
 
 359 
 
{jeneral and Special Agents, 
 
 AGENCY. 
 
 Power to Sell Land. 
 
 power to sell for the same price at a subsequent time,i nor to sell 
 at a price different from the one given ;'-* nor does a power to sell 
 upon a certain day authorize a sale upon any other day.^ 
 
 Power to sell does not authorize an agent to sell on credit ;* nor 
 to barter ;** nor to sell in payment of agent's debt;* nor to pay 
 ■commissions ;''' nor a power to sell on credit, to give unreasonable 
 'Credit.** 
 
 A power to sell claims and effects does not give power to sell 
 lands ;® nor a power to " close a bargain " to sign a bill oiF sale ;*" 
 nor does authority to obtain an offer imply a power to sell." 
 
 Nor does authority of a purchasing clerk to make a single sale 
 imply a power to make an unauthorized sale long afterward. ^^ 
 
 Power to Sell Land. — Authority to sell land authorizes the agent 
 to execute all instruments necessary to complete the sale ;i^ but he 
 iias no right under such power to grant a license to the purchaser, 
 previous to a conveyance, to enter and cut timber, although such, 
 license be given with a bona-jide mt&Vi'i to effect a sale ;i* nor to 
 sell at auction, 1^ nor to mortgage.^* 
 
 Authority to "bargain, sell, grant, release, and convey," which 
 does not specify some particular property, authorizes the agent to 
 sell whatever real estate the principal may own;^'' and a power of 
 
 1. Matthews v. Sowie, I2 Neb. 398. 
 
 2. Holbrook z/., McCarthy, 61 Cal. 216. 
 
 3. Bliss V. Clark, 16 Gray (Mass.), 60; 
 Reed v. Baggott, 5 111. App. 257. 
 
 So where an agent empowered to sell 
 land at a given price sells it three years 
 later, when the value was much increased 
 and was still increasing, for the same 
 price, without informing his principal of 
 the changed circumstances, this was con- 
 sidered such a fraud that a court of equity 
 would refuse to enforce the sale. Proud- 
 foot i). Wightman, 78 111. 553. 
 
 4. Burks &., Hubbard. 69 Ala.. 379; 
 School Dist. V. .(Etna Ins. Co., 62 Me. 
 330; Scoby V. Wood, 59 Tenn. 66; Frank 
 V. Ingalls, 41 Ohio St. 560. 
 
 5. Taylor v. Starkey, 59 N. H. 142; 
 Brown V. Smith, 67 N. Car. 245. 
 
 6. Powell ■(.. Henry, 27 Ala. 612 ; 
 Wheeler, etc., Co. v. Givan, 65 Mo. 89; 
 Buckwaltei- v. Craig, 55 Mo. 71; Green- 
 wood V. Burns, 50 Mo. 52; Flanagan tj. 
 Alexander, 50 Mo. 51; Victor, etc.; Co. 
 V. Heller, 44Wis. 265; Stewart p. Wood- 
 ward, 50 Vt. 78; s. c, 28 Am. Rep. 388. 
 
 7. Atlee w. Fink, 75 Mo. 100; s. c, 42 
 Am. Rep. 385. 
 
 8. Brown v. Central Land Co., 42 
 Cal. 257. 
 
 9. DeCordova v. Knowles, 37 Tex. 19. 
 
 10. Duffy V. Hobson, 40 Cal. 240; s. c,, 
 6 Am. Rep. 617. 
 
 11. Levi V. Boofh, 58 Md. 305; s. c, 42 
 Am. Rep. 382; Dempsey v. West, 69 111. 
 613. 
 
 12. Cupples w. Whelan, 61 Mo. 583. 
 
 13. Valentine v. Piper, 52 Pick. (Mass.) 
 85; s. c, 33 Am. Dec. 715; Yale v. 
 Eames, i Mete. (Mass.) 48B; People v. 
 Boring. 8 Cal. 407; s. c, 68 Am. Dec. 
 331; Fogarty v. Sawyer, 17 Cal. 589; 
 Plummer v. Buck, 16 Neb. 322; Hem- 
 street V. Burdick, go III. 444. 
 
 Where such agent has the power to 
 sell, he has the authority to sign an 
 agreement in his principal's name and to 
 bind him thereby. Smith w. Allen, 86 
 Mo. 178; Haydock v. Stow, 40 N. Y. 
 
 363- 
 
 14. Hubbard ■». Elmer, 7. Wend. (N. 
 Y.) 446; s. c. , 22 Am. Dec. 590. 
 
 15. Towie V. Leavitt, 23 N. H. 360; s. 
 C, 55 Am. Dec. 195. 
 
 16. A power of attorney to sell will not 
 support a mortgage; and if the deed is 
 really intended as security they are con- 
 veyed without authority and the grantee 
 cannot maintain ejectment for them. 
 Jeffery v. Hursh, 58 Mich. 247. 
 
 17. Marr v. Given, 23 Me. 55; s. c. , 
 39 Am. Dec, 600; Roper v. McFadden, 
 48 Cal. 346; Berkey v. Judd, 22 Minn. 
 287. 
 
 But a power of attorney " to buy and 
 sell real estate and to receive and execute 
 all necessary contracts and conveyances" 
 was held not to authorize the attorney to 
 sell and convey lands to which the prin- 
 cipal acquired title before the execution 
 of the power. Greve v. CoiBn, 14 
 Minn. 340. 
 
 360 
 
General and Special Agents. AGENCY. Eailroad AgentB. 
 
 attorney which authorizes an agent to sell land " on such terms in 
 all respects as he shall deem most advantageous" empowers him 
 to make full covenants of warranty.^ 
 
 A power to .sell and convey does not impl)^ authority to dedi- 
 cate or give any part of the principal's property to the public ;* 
 but a power to " sell, convey, plat, and subdivide, in such manner 
 as to make the property marketable, and to acknowledge and 
 record such plat," implies a power to dedicate such part of the 
 property as may be necessary to the public for streets.* 
 
 Railroad Agents. — A station agent authorized to receive and 
 forward freight may contract to supply cars ;* but he has no im- 
 plied power to contract to furnish cars at other stations than his 
 own,' and authority to solicit passengers does not imply power 
 to solicit or receive freight.® 
 
 An agent authorized to sell tickets, and stamp and deliver the 
 same upon receiving pay therefor, cannot bind his company by 
 stamping and delivering such tickets, without the knowledge or 
 consent of its proper officers, to a third person, to be sold by him, 
 and to be paid for when sold.' 
 
 Nor does a telegraph operator sustain such relation to the com- 
 pany as to constitute him its representative in reference to passing 
 upon the subject-matter of a claim, its allowance or payment.** 
 
 Representations by the agent of a railroad corporation, soliciting 
 subscriptions for stock from persons living along the contemplated 
 route of the road, as to its intended location, and the time within 
 which it will be completed to a particular place, are but the mere 
 expression of an opinion, and neither constitute a fraud nor are 
 available as a defence to an action on a subscription for stock made 
 on the faith of them, unless known by the agent to be false, and 
 made by him with intent to deceive.® 
 
 An engineer in the employ of a railroad company has no power 
 to bind the company by his contracts unless he is specially 
 authorized.*" 
 
 Power to Ship. — One employed to ship goods may make a reason- 
 able contract limiting carriers' liabilities;** and employment ta 
 
 1. Le Roy v. Beard, 8 How. (U. S.) 7 Am. & Eng. R. R. Cas. 382; ». c, 74. 
 451. Mo. 364. 
 
 2. Wirt V. McEnery, 21 Fed; Rep. 233; 5. Missouri Pac. R. Co. v. Stults, 15 
 Gosselin v. Chicago, 103 III. 623. Am. & Eng, R. R. Cas. 97; s. c, 31 
 
 3. Wirt v. McEnery, 21 Fed. Rep. 233. Kans. 752. 
 
 Power to lay out land, in order to dis- 6. Taylor v. Chicago, etc., R. Co., 74, 
 
 pose of it, implies authority to dedicate III. 86. 
 
 highways. State v. Atherton, 16 N. H. 7. Frank v. Ingalls, 41 Ohio St. 560. 
 
 203. 8. Young V. Tel. Co., 65 N. Y. 163^ 
 
 Authority to purchase a town site and Western Union Tel. Co. v. Rains, 63, 
 
 lay it out empowers the agent to dedi- Tex. 27. 
 
 cate land for streets. Barteau v. West, 9. Montgomery S. R. Co. v. Matthews,. 
 
 23 Wis. 416. 77 Ala. 357. 
 
 An authority to locate and survey land 10. Gardner v. Boston, etc., R. Co., "jo 
 
 confers no power to sell. Moore v. Me. 181. 
 
 Lockett, 2 Bibb. (Ky.) 67; s. c, 4 Am. 11. Illinois Cent. R. Co. v. Johte, 13 
 
 I)ec. 683. 111. App. 424 ; Shelton v. Merch. Des. 
 
 4. Harrison v. Missouri Pac. R. Co., Co., 59 N. Y. 258; Nelson v. Hudson 
 
 361 
 
Oeneral and Special Agents, AGENCY. Miscellaneous Bestrictions. 
 
 deliver freight implies power to make terms in regard to its deliv- 
 ery;^ power to purchase imphes power to direct as to shipment and 
 delivery ;* but authority to procure a cargo in a foreign port does 
 not empower the agent to modify or cancel the charter-party.* 
 
 Miscellaneous. — Authority to hire a towboat and " make the 
 best bargain you can" does not imply power to assume the perils 
 of the service or risks of the voyage, or to insure against the negli- 
 gence of any one employed in the navigation or handling of the 
 boat.* Authority to search for goods delivered to a railroad but 
 either missent or lost does not imply a power to settle with the 
 company for damages.^ Authority to advertise does not give 
 power to do an unreasonable amount of advertising ;^ and power 
 to close up a business does not authorize a re-investment of the 
 funds.'' Authority to erect a monument in a burial-lot implies 
 the power of the agent to give a contractor the right to enter the 
 lot to build the monument, and to remove it if not satisfactory 
 or not paid for.** Health officers authorized to remove small-pox 
 patients to a pest-house have implied power to employ nurses.' 
 Authority to open a new channel for a stream implies a power to 
 construct a dam.^" 
 
 Negotiable Paper. — Authority to sell negotiable paper includes 
 power to indorse it ;^^ but an agent authorized to receive a note 
 in payment, made to order of principal, has no authority to re- 
 ceive payment for it, if he has delivered the note to the prin- 
 cipal.^* A power to draw checks, sign or indorse notes, which 
 are to be used at a certain bank will not empower an agent to 
 sign notes in the principal's name to be used in other transac- 
 tions.i* 
 
 River R. Co., 48 N. Y. 498; Redfield v. bank concerning; it as he sees fit; and his 
 
 Carriers, § 52. subsequent declarations as to the dispo- 
 
 1. Michigan, etc., R. Co. v. Day, 20 sition of the note are admissible in evi- 
 111. 375; s. c. 71 Am. Dec. 278. dence in a suit by the bank against the 
 
 2. Owen V. Brockschmidt, 54 Mo. 285. maker of it. Bank of Nevvbury v. Sin- 
 See Shelion v. Merchants, etc., Co., 59 clalr, 60 N. H. 100. 
 
 N. Y. 258. 12. Draper z/. Rice, 56 Iowa, 114; 's. c, 
 
 8. Ye Seng Co. v. Corbitt, 7 Sawy. 41 Am. Rep. 88; Guilford v. Stacer, 53 
 
 <U. S ) 368; s. t.. 9 Fed. Rep. 423. Ga. 618. 
 
 4. Martin v. Farnsworth, 49 N. Y. 13. Citizens' Sav. Bank v. Hart, 32 La. 
 555. Ann. 22; Camden Safe Dep., etc., Co. v. 
 
 5. Congar v. Galena, etc., R. Co., 17 Abbott, 44 N. J. L. 257. 
 
 "Wis. 477. A power to indorse and discount for 
 
 6. Holloway v. Stephens, 2 Th. & C. one purpose cannot be extended to an- 
 .(N. Y.) 561. other. Callender w. Golsan, 27 La. Ann. 
 
 7. Stoddart's Case, 4 Ct. of CI. 511. 311. 
 
 8. Fletcher v. Evans, 140 Mass. 241. Nor a power to draw checks to over- 
 
 9. Labrie I). Manchester, 59 N. H. 120; draw the principal's bank account. Breed 
 s. c, 47 Am. Rep. 179. ». Bank, 4 Colo. 481. 
 
 10. Barns v, Hannibal, 71 Mo. 449. Nor to borrow money. Morahurst v. 
 
 11. Merchants' Bank v. Central Bp.nk, Boies, 24 Iowa, 99. 
 
 I Ga. 418; s. c, 44 Am. Dec. 665. Nor a power to sign notes to sign notes 
 
 - A party intrusted with another per- for the agent's benefit. Nortli River 
 
 son's note, and authorized to negotiate Bank v. Aymar, 3 Hill (N, Y.), 262 ; 
 
 itanduse.it for his own benefit, in the Stainer v. Tysen, 3 Hill (N. Y.), 279; 
 
 absence of any express direction by the Stainback v. Read, n Gratt. (Va.)28i: 
 
 latter may make such a contract with a s. c, 62 Am. Dec. 648 
 
 363 
 
General and Special Agents, 
 
 AGENCY. 
 
 tower to Conduct Business. 
 
 7b Conduct Business. — An agent with power to conduct a busi- 
 ness has authority to do everything necessary or proper and usual 
 in the ordinary course of the business.^ 
 
 Art agent, the principal being absent, having full charge, man- 
 agement, and control of the business of the principal, must neces- 
 sarily possess and exercise the same power and authority in the 
 business that his principal could if present. A general agency, 
 until revoked, is coextensive in scope and duration with the busi- 
 ness. Where a principal is absent, his general agent, liaving sole 
 authority to manage his business, will necessarily have authority 
 
 Nor for the benefit of third parties. 
 Gulick V. Grover, 33 N. J. L. 463; Wal- 
 lace V. Branch Bank, i Ala. 565. An 
 absolute power to settle claims does not 
 give authority to set off a private debt of 
 the agent. McCormick v. Keith, 8 Neb. 
 142; Burks V. Hubbard, 69 Ala. 379. 
 
 Nor to submit to arbitration. Mich. 
 R. Co. V. Gongar, 55 111. 503. See Arbi- 
 tration AND Award. 
 
 Plaintiff, who was executrix and sole 
 leg'atee under the will of M., executed 
 certain powers of attorney to F., author- 
 izing him in her name as executrix and 
 legatee, as well as individually, "to sign, 
 indorse, and make and deliver checks and 
 drafts, promissory notes, receipts and 
 drafts, and all other vouchers and papers 
 necessary and proper, in and about set- 
 tling the affairs pertaining to the estate, 
 . . . and to SFttle . . . and receive pay- 
 ment of all claims, debts, demands due 
 or to become due to said estate." Also, 
 to satisfy and discharge all mortgages 
 made lo the testator, "and to demand, 
 receive, and receipt for any and all 
 moneys payable" on any such mort- 
 'gages. At ihe time of the death of M., 
 defendant held a bond and mortgage as- 
 signed to it by him as collateral for a 
 loan. In pursuance of a written request, 
 signed in plaintiff's name by F. , as her 
 attorney, defendant, on payment of the 
 amount due it, assigned the bond and 
 mortgage to F. and E., a firm In which F. 
 was a partner. F. subsequently received 
 payment of the bond, and his firm satis- 
 fied the mortgage. In an action to com- 
 pel a reassignment of the bond and mort- 
 gage, or damages, in case a reassignment 
 could not be had, held, that F. , as far as 
 plaintiff was concerned, had full authority 
 under the power of attorney to receive 
 payments on the bond, and conceding 
 the assignment to the firm was unauthor- 
 ized, he continued to have such righf 
 with power to cancel the bond and to 
 satisfy the mortgage when paid in full; 
 and as he did thus receive payment, no 
 injury was doiie the plaintiff, and defend- 
 
 ant was not liable; but held, that F., un- 
 der the powers of attorney, had power to 
 direct the assignment to be made to his 
 firm, and defendant was justified In obey- 
 ing his instructions. Myers v. Mut. L. 
 Ins. Co., 99 N. Y. i. ^ 
 
 A power to sign and acknowledge 
 bonds includes.power to sign the bonds 
 of a county officer in the name of the 
 principal. Jernegan v. Gray, 14 Lea 
 (Tenn.), 536. 
 
 1. Banner Tobacco Co. v. Jenifon, 48 
 Mich. 459; Cummings v. Sargent, 9 Mete. 
 (Mass) 172; Taylor v. Labeaume, 14 
 Mo. 572, 17 Mo. 338; Baliimore, etc., 
 Co. v. Brown, 54 Pa. St. 77; Bailey w. 
 Rawley, i Swan (Tenn.), 295; Shepherd 
 T. Milwaukee Gas Co., 11 Wis. 234: Bri- 
 denbe;:ker v. Lowell, 32 Barb. (N. Y.) 9; 
 Minor z/. Mechanics' Bank, i Pet. (U. S.) 
 46; Sentell v. Kennedy, 29 La. Ann. 
 679; German Ins Co. v. Grunert, J12 
 111. 68. 
 
 To give notes for purchases necessary 
 to carry on the business. Odiorne v. 
 Maxcy, 13 Mass. 178; White v. West- 
 port Mfg. Co., I Pick. (Mass.) 215; s. t., 
 II Am. Dec. 168; Bailey v. Rawley. I 
 Swan (Tenn.), 295. To contract for the 
 board of the workmen. Burley v. K itch- 
 ell, 20 N. J. L. 305. But not to pledge 
 or mortgage machinery or buildings. 
 Dispatch Line v. Bellamy M. Co., 12 N. 
 H. 205; s. c, 37 Am. Dec. 203. But see 
 Perkins v. Boothby, 71 Me. 91. where It 
 was held that an agent appointed by a 
 company to have charge of a store, sell 
 the goods, and from time to time make 
 such purchases of goods as might be 
 necessary in his judgment, subject to the 
 general oversight of the directors, has no 
 authority to give notes of the company 
 in order to procure loans of money; and 
 when notes in suit were thus given the 
 plaintiff cannot recover. 
 
 If necessary for the conduct of the 
 business he can employ a sub-agent. 
 Planters', etc.. Bank v. First Nat. Bank, 
 85 N. Car. 534. 
 
 He has an insurable interest where he 
 
 863 
 
General goA Special Agents, 
 
 AGENCY. 
 
 Power to Employ. 
 
 to bring suits to collect debts, and insurance in case of loss by fire, 
 such power being essential to an efficient discharge of his duties. ^ 
 
 Power to Employ. — Authority to employ an agent or servant, 
 includes, in the absence of restrictive words, authority to inake 
 a complete contract, definite as to the amount of wages, as to all 
 other terms.** 
 
 To Employ Surgical Aid. — The business manager of a manufac- 
 
 is liable to account for the property. 
 Kline V. Queen Ins. Co., 7 Hun (N.'Y.), 
 267. 
 
 He can settle claims morally, though 
 not legally, binding upon his principal. 
 Bergenthal v. Fiebrantz, 48 Wis. 435. 
 
 A intrusted B with the management 
 of his foundry. B was accustomed to 
 buy materials, employ workmen, sell 
 goods, collect accounts, and receipt for 
 moneys and pay them out. During A's 
 absence B contracted to cast a lot of jack- 
 screws for C. Before they were cast and 
 delivered B borrowed from one D^ a 
 sum of money for use in the foun- 
 dry, and after the delivery of the jack- 
 screws assigned the account against C 
 therefor as security to D, who collected 
 the same from C. Held, a valid pay- 
 ment by C. Hoskins v. Swain, 61 Cal. 
 338. 
 
 1. German Fire Ins. Co. v. Grunert, 
 112 111. 68. 
 
 Authority as general superintendent 
 of a railroad implies power to contract 
 for fencing. New Albany R. Co. v, Has- 
 kell, II Ind. 301. 
 
 The general agent and manager of a 
 mining company is presumably empow- 
 ered to sell its personal property. Scud- 
 der V. Anderson, 54 Mich. 122. 
 
 But where an agent was authorized to 
 manage a hotel, and without the knowl- 
 edge of the principal entered into an ar- 
 rangement with a livery-stable keeper 
 that the latter should furnish carriages 
 for the guests of the house, and that the 
 house would be responsible for the safe- 
 keeping and return of the carriages, 
 held, that the principal was not bound. 
 Brockway v. MuUin, 4 N. J. L. 448; s. «,., 
 50 Am. Rep. 442. 
 
 But authority to manage and superin- 
 tend a farm does not imply power t al- 
 low a creditor to cut, remove, and se'ij on 
 execution grass growing on the land. 
 Benjamin v. Benjamin, 1.5 Conn. 347; 
 s. c, 39 Am. Dec. 3S4. 
 
 Nor does authority to purchase mules, 
 implements, and supplies for the farm im- 
 ply a power to purchase goods for farm 
 hands. Carter v. Burnham, 31 Ark. 
 212. 
 
 Nor does authority to employ work- 
 
 men for the construction of a mill and 
 pay them imply a power to purchase 
 lumber or enter into contracts respecting 
 it. Rankin v. New England, etc., Co., 4 
 Nev. 78. 
 
 A clerk managing his principal's busi- 
 ness during his absence has no power to 
 bind his principal for the debt of a third 
 party. Ruppez/. Edwards, 52 Mich. 411; 
 New York Iron Mine v. Negaunee Bank, 
 39 Mich. 644; Clayton v. Martin, 31 Ark. 
 217; Meyer v. Baldwin, 52 Miss, 263; 
 Doan V. Duncan, iS III. 96. 
 
 An authority given by an administra- 
 trix of an estate to manage her own affairs 
 does not extend to the affairs of the 
 estate. Succession of Pipes, 26 La Ann. 
 203. 
 
 A manager of a plantation has no 
 power to agree for the exchange of cot- 
 ton. Ball V. Bender, 22 La Ann. 493. 
 
 Power to represent all the interests of 
 the principal's business does not imply 
 power to engage in a new and different 
 business. Campbell v. Hastings, 29 
 Ark. 512. 
 
 Nor to sell the principal's land. Wat- 
 son V. Hopkins, 27 Tex. 637; Smith v. 
 Stephenson, 45 Iowa, 645. 
 
 Nor to indorse notes. Sewanee Miiv 
 ingCo. V. McCall, 3 Head (Tenn ), 619. 
 
 Nor to make notes. Rossiter v. Ros-' 
 siter, 8 Wend. (N. Y.)494; s. c, 24 Am. 
 Dec. 62; Holtsinger SI. Nat.< qtc, Bank, 
 I Sweeney (N. Y.), 64. 
 
 Nor to give accommodatioh notes 
 Gulick » Grower, 33 N. J. L. 463; Bank 
 V. Johnson, 3 Rich (S. Cai.) 42. 
 
 2. Ala. Gr. So. R. Co. v. Hill, 76 Ala. 
 303. 
 
 As to the length of the engagement, 
 Williams v, Getty, 31 Pa. St. 461; s. c, 
 72 Am. Dec. 757, Compare Pasco v. 
 Smith, 49 Conn. 576. But does not in 
 elude the power to allow an employee 
 to engage in other business antagonistic 
 to the interests of the principal. Adams 
 Exp. Co. V. Trego, 35 Md. 47. 
 
 It seems that an agent, to give notice of 
 the intention of -ne party to a contract 
 to end it, cannot withdraw the notice so 
 as to continue the contract, after it has 
 ceased to be operative. Patrick v. Rich' 
 mond, etc., R. Co., 93 N. Car. 422. 
 
 3G4 
 
General and Special Agents, 
 
 AGENCY. 
 
 Power to Manage Property, 
 
 turing corporation has implied power to employ surgical aid for 
 an injured employee. ^ 
 
 Power to Manage Property. — Authority by parol to rent and 
 care for real property will not empower an agent to bring suit in 
 his own name to recover possession of the property from claimant 
 under a tax deed;* nor one who is empowered to manage prop- 
 erty and make the necessary repairs to rebuild after a fire or make 
 
 1. Swazey v. Union Mfg. Co., 42 
 Conn. 556. 
 
 So has the general manager of a rail- 
 road company. Walker v. Great West- 
 ern R. Co., L. R. 2 Exch. 228, 36 L. J. 
 Exch. 123. 
 
 Also a sub-inspector of railway police. 
 Langan v. Great Western R. Co., 30 L. 
 T. N. S. 173. 
 
 A local agent has no power to bind the 
 company by such a contract. Toledo, 
 etc., R. Co. V. Rodrigues, 47 111. 188; 
 Tucker z/. St. Louis, etc., R. Co., 54 Mo. 
 177. Nor has a station-master any such 
 power. Cox v. Midland Counties R. 
 Co., 3 Exch. 268. Nor a conductor. 
 Tucker v. St. Louis, etc., R. Co., 54 
 Mo. 177. Nor a physician. Mayberry v. 
 Chicago, etc., R. Co., II Am. & Eng. R. 
 Cas. 29; s. c, 75 Mo. 492. 
 
 A general superintendent has such 
 power. Atchison, etc., R. Co. v. Beecher, 
 I Am. & Eng. R. R. Cas. 343; s. c, 
 22B. But not if he has merely power as 
 to the running of the road and pays the 
 employees, but has no control over the 
 treasury. Stephenson w. New York, etc., 
 R. Co., 2 Duer (N. Y.), 341. 
 
 A division superintendent or a yard- 
 master has no such power unless it is ex- 
 pressly conferred on him. Brown v. 
 Missouri, etc., R. Co., 67 Mo. 132; Mar- 
 quette V. Taft, 28 Mich. 289; Union Pac. 
 R. Co. V. Beatty, 10 Pac. R. (Kans.)845. 
 
 A telegram from the general superin- 
 tendent authorizing a station-master to 
 employ the best doctor for an injured 
 employee, and to do all he could to save 
 his foot and make him comfortable, is 
 sufficient to bind the company for board 
 and nursing. Atchison, etc., R. Co. v. 
 Beecher, i Am. & Eng. R. R. Cas. 343; 
 s. c, 24 Kan. 228. 
 
 Where a local agent entered into a con- 
 tract such as above, and wrote to the 
 superintendent stating what he had done, 
 and the letter did not countermand the 
 order, but on the contrary, on receipt of 
 the bill, admitted the validity of the con- 
 tract and contested the claim solely on 
 the ground of its alleged excessive nature, 
 the company was held liable. Toledo, 
 etc., R. Co. V. Rodrigues, 47 111. 188. 
 
 Where a brakeman is injured in the 
 
 discharge,of his duty at a point distant 
 from the chief offices of the company, 
 and is in need of immediate surgical at- 
 tendance, the conductor has implied 
 power to employ a surgeon, if there is 
 no superior agent of the company present. 
 Terre Haute, etc., R. Co. v. McMurray, 
 22 Am. & Eng. R. R. Cas. 371; s. c, 98 
 Ind. 358; 49 Am. Rep. 752. 
 
 It is the duty of agenis in charge of a 
 train to take care of one injured by a 
 collision. Northern, etc., R. Co. v. 
 State, 29 Md. 420. 
 
 A railway road-master, having charge 
 of the repairs of the roadway, has no im- 
 plied authority to contract for the nursing 
 of a person injured on the line of the 
 road, there being no emergency calling 
 for immediate action, and there being a 
 superior agent within reach ; but the cor- 
 poration will be bound by the ratification 
 of such contract by the general manager. 
 Louisville, etc., R. Co. v. McVay, 22 
 Am. & Eng. R. R. Cas. 382 ; s. c, 98 
 Ind. 391, 49 Am. Rep. 770. 
 
 As to ratification of acts of the employ- 
 ees in above cases, see Indianapolis, etc., 
 R. Co. V. Morris, 67 III. 295; Cairo, etc., 
 R. Co. V. Mahoney, 82 111. 73 ; Pacific, 
 etc., R. Co. V. Thomas, 19 Kans. 256 ; 
 Southgate v. Atlantic, etc., R. Co., 61 
 Mo. 89; Louisville, etc., R. Co. v. Mc- 
 Vay, 22 Am. & Eng. R. R. Cas. 382 ; 
 s. c. 98 Ind. 391, 49 Am. Rep. 770. 
 
 Authority to care for an injured em- 
 ployee implies a power to arrange for 
 his board and care. Atchison, etc., R. 
 Co. V. Reecher, i Am. & Eng. R. R. Cas. 
 343 ; s. c, 24 Kans. 228. 
 
 But authority to purchase medicines on 
 credit does not imply power to contract 
 for board and nursing. Mayberry v. 
 Chicago, etc., R. Co., 11 Am. & Eng. R. 
 R. Cas. 29 ; s. c, 75 Mo. 492. 
 
 Nor does authority to employ surgical 
 aid for a passenger authorise it for an 
 injured employee. Shriver v. Stephens, 
 12 Pa. St. 258. 
 
 A managing agent has no power to 
 employ an attorney to bring suit for per- 
 sonal injuries to employees of the princi- 
 pal. Cochran v. Newton, 5 Den. (N. 
 Y.), 482. See Railroads. 
 
 2. McHenry v. Painter, 58 Iowa, 365. 
 
 365 
 
'General and Special Agents. AGENCY. Various Powers. 
 
 unnecessary alterations; * nor does authority to use property for 
 the agent's benefit imply a power to rent it.® ■ 
 
 A power to manage property gives no authority to sell it;^ nor 
 a power to insure property, to insure it in a mutual company 
 which would make the principal an insurer of others.* 
 
 To Control Real Estate. — A power to exercise control and super- 
 vision over all lands that may belong to the principal extends to 
 after-acquired lands ; ^ and a full power to act for a principal in 
 regard to his real estate'will authorize the bringing of a suit to 
 restrain trespass and to execute an injunction bond in the princi- 
 pal's name,* and to settle a mortgage debt by taking the mort- 
 gaged property in full satisfaction.'' 
 
 Credit. — Power to purchase implies power to purchase on credit, 
 if the agent is not supplied with funds.* 
 
 An agent furnished with funds and instructed to build a house 
 -has no implied power to build on credit.® A travelling agent has 
 implied authority to hire teams to transport himself and samples 
 on his principal's credit, even though he is supplied with funds to 
 pay for such hiie.^" 
 
 To Loan and Borrow. — A general power to loan money author- 
 izes an extension in time of payment, '^^ and a general power to 
 borrow money includes authority to give the lender the ordinary 
 securities for the sum borrowed.^* i 
 
 To Mortgage. — A power to mortgage does not authorize the agent 
 -to mortgage the property for his own benefit,*^ nor that of third 
 
 1. Beckman v. Wilson, 6i Cal. 335. trade. Komorowski z/. Krumdick, 56 Wis. 
 
 2. Ward v. Thrustin, 40 Ohio St. 347. 23; Jaques v. Todd, 3 Wend. (N. Y.) 83; 
 
 3. Smith V. Stephenson, 45 Iowa, 645; Fraser z/. McPherson, 3 Desaur (S. Car.), 
 Holbrook v. Oberne, 56 Iowa, 324 ; Mc- 393. 
 
 iJamee v. Keif, 52 Miss. 426. The fact that the agent is supplied 
 
 Nor to employ counsel in a case con- with money to pay- for purchases does 
 
 ■cerning property belonging to another not imply that he is not authorized to 
 
 person. Perry v. Jones, 18 Kans. 552. buy on credit. Adams v. Boies, 24 
 
 Nor to confess a general judgment for Iowa, g6; Paine v. Tillinghast, 52 Conn, 
 
 his principal where an attachment is is- 532. 
 
 sued against the property, the owner be- A purchasing agent may make repre- 
 
 ing a non-resident. Howell v. Gordon, sentations as to the solvency of his prin- 
 
 .40 Ga. 302. cipal. Hunter v. Hudson River Co., 20 
 
 Neither does authority to locate and Barb. (N. Y.)493. 
 
 survey land give authority to sell. Moore 9. Proctor v. Tows, 3 N. East. R. 111. 
 
 V. Lockett, 2 Bibb. (Ky.) 67; s. c, 4 569. 
 
 Am. Dec. 683. 10. Bentley ». Doggett, 51 Wis. 224; s. 
 
 Nor a power to collect rent to employ c, 37 Am. Rep. 827. See Huntley v. 
 
 an engineer. Crozier v. Reins, 4 111. Mathias, 90 N. Car. 10 j; s. c, 47 Am, 
 
 App. 564. Rep. 516. Compare Sampson v. Singer 
 
 4. White V. Madison, 26 N. Y. 117. Manuf.Co.. 5 S. Car. 465, Howe Machine 
 
 5. Berkey v. Judd, 22 Minn. 287. Co. v. Ashley, 60 Ala. 496. 
 
 6. State V. Banks, 48 Md. 513. 11 Hurd v. Marple, 2 111. App. 402. 
 
 7. Renwick v. Wheeler, 4 McCrary But not to receive usury. Gokey v. 
 •(U. S.), 119. Knapp, 44 Iowa, 32. Compare Stevens 
 
 8 Sprague v. Gillett, 9 Mete. (Mass.) v. Meers, 11 111. App. 138. 
 .91 See RufEn v. Mebane, 6 Ired. Eq. 12. Hatch v. Coddington, 5 Otto (U 
 (N. Car.) 507. S.). 48. 
 
 Hut when he is supplied with funds he 13. Nippel v. Hammond, 4 Colo, zii; 
 cannot do so unless it is the usage of the Wolfley v. Rising, 8 Kan. 297. 
 
 366 
 
General and Special Agents. 
 
 AGENCY. 
 
 Various Powers. 
 
 parties \^ nor to give a note in the principal's name ;* nor to insert 
 a provision for payment of attorney's fee.^ Nor does a power to 
 mortgage farm stock to a certain amount authorize a second 
 mortgage.* 
 
 An authority to foreclose a mortgage is not implied by the 
 power to take a mortgage to secure a deferred payment.^ 
 
 To Settle. — Authority to " cite and appear " empowers an agent 
 to prosecute and defend suits which may be brought by or against 
 his principal;® an absolute power to settle a suit implies authority 
 to raise money by note, where the money is to be used in procur- 
 ing a settlement.'' 
 
 To Examine Accounts. — Authority to investigate the affairs and 
 accounts of a corporation implies power to employ expert assist- 
 ance.* 
 
 To Perform Contracts. — But authority to perform and carry out 
 a contract does not imply a power to change it ;® nor does authority 
 to sue and execute releases imply a power to release without pay- 
 ment ;*" nor to assign the claim to a third person. " 
 
 A power to manage an estate and prosecute suits does not au- 
 thorize an agent to assign a cause of action for trespass ;^* neither 
 does authority to issue policies for life insurance and to receive 
 
 1. Greenwood v. Spring, 54 Barb. (N. 
 
 Y.) 375. 
 
 2. Mylius V. Copes, 23 Kan. 617. 
 
 3. Pacific, etc., Co. v. Dayton, etc., R. 
 Co., 7 Sawy. (U. S.) 61 ; s. c, 5 Fed. Repr. 
 582. 
 
 4. Skaggs V. Murcliison. 63 Tex. 348. 
 B. and E. executed to F. a power of 
 
 attorney to borrow money for the use of 
 the firm, "and to sign and indorse all 
 notes repre.«;enting the sura or sums 
 thus borrowed or to be borrowed, and 
 to secure the payment and reimburse- 
 ment thereof by granting a special mort- 
 gage on the whole or a part of the real 
 estate, lamis, and tenements belonging to 
 our said firm or standing in its name." 
 F. theii procured S. to give notes as ac- 
 commodation makers, payable to the or- 
 der of B. & Co., who negotiated the same 
 with several banks. In order to prociwe 
 the renewal of suchaccommodation paper, 
 F. for himself, and as the attorney in fact 
 of B. and E.. gave to S. B. & Co. their 
 promissory notes for the amount of Fuch 
 renewals, and executed a mortgage on cer- 
 tain real estate to secure the payment of 
 the notes to S. If eld, that under the power 
 of attorney, F. was authorized to borrow 
 money, and the mortgage given to secure 
 S. to be good in equity. Burnet v. Boyd, 
 60 Miss. 627. 
 
 5. Aultman v. Jones, i Woolw. (U. 
 
 S-)99- ^ . ^ 
 
 But where the owner authorized an 
 
 agent to procure additional security for 
 a real-estate mortgage, leaving it to his 
 judgment to make the best arrangement 
 he could for that purpose, held, that the 
 agent was authorized to make an agree- 
 ment for a reasonable extf nsion of time 
 of payment. Also held, that the owner 
 by taking, holding, and foreclosing a chat- 
 tel mortgage given in consideration of 
 the agreement to extend the time of pay- 
 ment must be deemed to have ratified 
 the same, even if the agent had not au- 
 thority to make it. Kane v. Cortcsy, 100 
 N.Y. 132. 
 
 6. Miller v. Marmiche. 24 La. Ann. 30. 
 And to make a suit effective by attacii- 
 
 ment. De PoreJ j'. Gusrnan, 30 La. Ann. 
 pt. ii. 930. 
 
 But not to advise with counsel relative 
 to the principal's interests; it only au- 
 thorizes the employment of counsel so 
 far as may be necessary to prepare such 
 instruments as may be necessary under 
 the power of attorney. Harrett v. Gar- 
 vey, 35 N. Y. Super. Ct. 327. 
 
 7. Tanner v. Hastings. 2 111. App. 283. 
 
 8. Star Line v. Van Vliet, 43 Mich. 
 364. 
 
 9. Gerrish v. Maher. 70 111. 470; God- 
 man V. Meixsel, 53 Ind. 11. 
 
 10. De Mets v. Dagron. 53 N. Y. 635. 
 
 11. Garrigue v. Loescher, 3 Bosw. 
 (N.Y.) 578. 
 
 18. Geiger v. BoUes, i Th. & C. {N. Y.) 
 129. 
 
 367 
 
Oaties of Ageiics. 
 
 AGENCY. 
 
 To Act in Person. 
 
 premiums imply a power to waive conditions in the policy as to 
 payment of premiums.* 
 
 Duties 9f Agents. — To Perform the Duties Undertaken. — When an 
 agent has undertaken to execute a commission for a valuable con- 
 sideration, he binds himself to perform it, and will be liable for 
 its performance in the absence of a fresh contract releasing him, 
 unless the agreement is either illegal, immoral, or absolutely im- 
 possible.® 
 
 To Act in the Name of his Principal. — In so far as he undertakes 
 to act as agent, he undertakes to represent the principal only.^ 
 
 To Act in Person. — An agent who has a bare power or authority 
 must execute it himself and cannot delegate his authority to an- 
 other.* 
 
 1.1 Mersereaux v. Phoenix M. L. Ins. 
 Co., 66 N. Y. 274. 
 
 2. Evans on Agency (Ewell's Ed.), 
 212; LeGuen v. Governeur, i Johns. Cas. 
 (N. Y.) 437; s. c, I Am. Dec. 121; Bell 
 V. Palmer, 6 Cow. (N. Y.) 128; La Farge 
 V. Kneeland, 7 Cow. (N. Y.) 456; Allen 
 V. Suydam, 20 Wend. (N. Y.) 321; 32 
 Am. Dec. 555; Ralston v. Barclay, 6 
 Martin (La.), 653; s. c, 12 Am. Dec. 
 483; Berthond v., Gordon, 6 La. 583; 
 Williamsburgh, etc., Ins. Co.- v. Froth- 
 ingham, 122 Mass. 391; Morris v. Sum- 
 mer!; 2 Wash. (U. S.) 203; De Tastett 
 V. Cronsillatt, 2 Wash. (U. S.) 132. 
 
 3. Evans on Ag. (Ewell's Ed.) 212, 
 213; Sullivan v. Ross, 39 Mich. 51T. 
 
 4. Emerson v. Providence Hat Mfg. 
 Co., 12 Mass. 37; Haven w. Winnissim- 
 met Co., II Allen (Mass.), 377; Tippets 
 V. Walker, 4 Mass. 596; Brewster v. 
 Hobart, 15 Pick. (Mass.) 302; Stoughton 
 V, Baker, 4 Mass. 522; s. c, 3 Am. Dec. 
 236; Connor v. Parker, 114 Mass. 331; 
 Lewis V. Ingersoll, 3 Abb. App. Dec. 
 (N. Y.) 55; Commercial Bank v. Nor- 
 ton, I Hill (N. Y)., 501; iHawley v. 
 James, 5 Paige (N. Y.), 318; Lyon v. 
 Jerome, 26 Wend. (N. Y.)485; s. c. , 37 
 Am. Dec. 271; Lynn v. Burgoyne, 13 B. 
 Mon. (Ky.) 400; Bocock v. Pavey, 8 
 Ohio St. 270; Merchants' Nat. pank. v. 
 Trenholm, 12 Helsk. (Tenn.) 520; War- 
 ner V. Martin, 11 How. (U. S.) 209, 223; 
 Bx-p. Winsor, 3 Story (U. S.), 411; 
 Despatch Line v, Bellamy Mfg. Co., 12 
 N. H. 205; Gillis V. Bailey, i Fost. (N.H.) 
 149; Andover v. Grafton, 7 N. H. 304; 
 Mayer w. McLure, 36 Miss. 389; s. c, 
 72 Am. Dec. 190; Bissell v. Roden. 34 
 Mo. 63; McClure v. Miss. Valley Ins. 
 Co., 4 Mo. App. 148; Crozier v. Reins, 
 4 111. App. 364; Mason v. Waits, 4 Scam. 
 (111.) 127; Locke's Appeal, 72 Pa. St. 
 491; McCormick v. Bush, 38 Tex. 314; 
 Smith V. Sublett, 28 Tex. 163; Entz v. 
 
 Mills, I McM. (S. Car.) 453; Wilson v. 
 York, etc., R. Co., 11 Gill. & J. (Md.) 
 58, 74; Hunt V. Douglass, 22 Vt. 128; 
 Loomis V. Simpson, 13 Iowa, 532; Fur- 
 nas V. Frankman, 6 Nebr. 429. 
 
 Except where a known usage of trade 
 justifies, or necessity requires, the em- 
 ployment of sub-agents, an agent whose 
 powers and duties involve personal trust 
 and confidence and the exercise of judg- 
 ment and discretion cannot, without au- 
 thority from his principal, delegate to 
 another the confidence and discretion re- 
 posed in him. Having, by his own 
 judgment and discretion, determined 
 what should be done, he may authorize 
 another to perform the ministerial acts 
 necessary to carry into effect the pur- 
 poses of his employment, but he can- 
 not turn his principal's business over 
 to the judgment and discretion of an- 
 other, and bind his principal by the acts 
 and conduct of the latter. Titus & Scud- 
 der V. Cairo & F. R. Co., 46 N. J. L. 393, 
 
 An agent to sell cannot bind his prin- 
 cipal by an agreement to pay another 
 commissions for making sales. Atlee v. 
 Fink, 75 Mo. 100; s. c, 42 Am. Rep. 385. 
 
 The governing board of a municipal 
 corporation cannot delegate its authority 
 to an inferior board or other officers or 
 agents. Richardson v. Heydenfeldt, 46 
 Cal. 68; Thompson v. Schermerhorn, 6 
 N. Y. 92; s. c, 4 Am. Dec. 385; Ruggles 
 V. Collier, 43 Mo. 353; Sheeban v. Glee- 
 son, 46 Mo. 100; Foss 11. Chicago, 56 111. 
 354; East St. Louis v. Wehrung, 50 111. 
 28; State V. Jersey City, 26 N. J. L. 444; 
 State V. Paterson, 34 N. J. .L. 163; 
 White V Mayor, 2 Swan (Tenn.), 364. 
 
 A broker cannot delegate his authority. 
 Henderson v. Barnwell, I Y. & Jerv. 387; 
 Locke's Appeal, 72 Pa. St. 491. 
 
 Nor a factor. Loomis v. Simpson, 13 
 Iowa, 532; Warner v. Martin, 11 How. 
 (U. S.) 209 ■ ' 
 
 36S 
 
Duties of Agents. 
 
 AGENCY. 
 
 Power of SubBtitution. 
 
 Power of Substitution. — The principal may, however, give the 
 agent the power of substitution, either expressly with the appoint- 
 ment, or by ratification or acquiescence when the agent has dele- 
 gated his power without authority.^ 
 
 To Obey Instructions, and Observe the Terms of the Authority. — 
 An agent is bound to follow faithfully the instructions of his prin- 
 cipal, and to act within the scope of his authority.* This rule is, 
 however, subject to the following exceptions : 
 
 Neither can an attorn ey-at-law. In re 
 Bleakly, 5 Paige (N. Y.), 311; Hitchcock 
 V. McGehee, 7 Port. (Ala.) 556; Johnson 
 V. Cunningham, l Ala. 249; Ratcliff v. 
 Baird, 14 Tex. 43; Rolland v. Rowland, 
 2 Blackf. (Ind.) 22. 
 
 Nor an auctioneer. Stone v- State, 12 
 Mo. 400. 
 
 Merely ministerial acts may, however, 
 be delegated by the agent. Williams v. 
 Woods, 16 Md. 220; Bodine v. Ins. Co., 
 51 N. Y. 117; Commercial Bank v. Nor- 
 ton, I Hill (N. Y.), 501; Com. v. Harn- 
 den, 19 Pick. (Mass.) 482; Poree v. Bon- 
 neval, 6 La. Ann. 386; Norwich Univer- 
 sity V. Denny. 47 Vt. 13; Grady u. Am. 
 Cent. Ins. Co., 60 Mo. 116; Newell v. 
 Smith, 49 Vt. 255; Star Line v. Van 
 Vliet, 43 Mich. 364. 
 
 A tax list made up by one who is not 
 a member of the taxing body, but who 
 acts under its direction and as its agent, 
 is not thereby made invalid. Covington 
 V. Rockingham, 93 N. Car. 134. 
 
 1. Gray z;. Murray, 3 Johns. Ch. (N. Y.) 
 167, 178; Van Schoick v. Niagara F. Ins. 
 Co.. 68 N. Y. 434; Smith v. Lipscomb, 
 13 Tex. 532; Johnson v. Cunningham, 
 I Ala. 249; King v. Pope, 28 Ala. 601; 
 Doe «/. Rotjinson, 3 Bing. (N. C.) 677; 
 Mason v. Joseph, I Smith, 406. 
 
 The power of substitution is impliedly 
 given to an agent when the object of the 
 agency is of such a character that it can- 
 not be attained without a substitution ; as 
 where a draft payable at a distant place 
 was left with a bank for collection. 
 Planters, etc. , Bank v. First Nat. Bank, 
 75 N. Car. 534; Dorchester, etc., Bank 
 »."New Etigl. Bank, i Cush. (Mass.) 177; 
 Appleton Bank v. McGilvray, 4 Gray 
 (Mass.), 522; s. c, 64 Am. Dec. 92; War- 
 ren Bank v. Suffolk Bank, 10 Cush. 
 (Mass.) 582; Fabens v. Mercantile Bank, 
 23 Pick. (Mass.) 330; s. c, 34 Am. Dec. 
 59; Lawrence v. Stonington Bank, 6 
 Conn. 521; Johnson v. Cunningham, i 
 Ala. 249; Laussatt v. Lippincott, 6 S. & 
 R. (Pa.) 386; Franklin v. Ezell, i Sneed 
 (Tenn.), 497; Strong!/. Stewart, g Heisk. 
 (Tenn.) 147; Gillis v. Bailey, 21 N. H. 
 149; Jackson v. Union Bank, 6 Harr. & 
 J. (Md.) 146; Bellimire v. Bank of U. S., 
 
 4 Whart. (Pa.) 105; s. c, 33 Am. Dec. 
 46; Warner v. Martin, 11 How. (U. S.) 
 209; Bank of Washington v. Triplett, i 
 Pet. (U. S.) 25. 
 
 Or where by well-known custom of 
 trade it is so understood by the parties. 
 Bodine v. Exch. Fire Ins. Co., 51 N. Y. 
 117; Bilsborrow v. James, 25 Hun (N. 
 Y.), 18; Commercial Bank u. Norton, i 
 Hill (N. Y.), 501; Gray v. Murray, 3 
 Johns Ch. (N. Y.) 167, 178; Van Schoick 
 V. Niagara F. Ins. Co., 68 N. Y. 434; 
 Grady v. Am. Cen. Ins. Co., 60 Mo. 116; 
 Norwich University v. Denny, 47 Vt. 13; 
 Peterson v. Christensen, 26 Minn. 581; 
 Williams v. Woods, 16 Md. 220; Rosen 
 stock Tj. Torraey, 32 Md. 169; Chase v. 
 Ostrom, 50 Wis. 640; Saveland v. Green, 
 40 Wis. 431, 442; Darling v. Stanwood, 
 14 Allen (Mass.), 504; Buckland v. Con- 
 way, 16 Mass. 396; Warren Bank u. 
 Suffolk Bank, lo Cush. (Mass.) 582; Le- 
 doux V. Goza, 4 La Ann. 160; Jackson 
 Ins. Co. V. Partee, 9 Heisk. (Tenn.) 296; 
 Strong V. Stewart, 9 Heisk. (Tenn.) 137; 
 Harralson v. Stein, 50 Ala. 347. 
 
 Where an agent is authorized to sell 
 land, exercising his discretion as to price 
 and terms, he may properly employ a 
 sub-agent. Renwick v. Bancroft, 56 
 Iowa, 527. 
 
 Or where the interests of the principal 
 may be better served by a substitution. 
 Briggs V. Georgia, 10 Vt. 68; Fenno v. 
 English, 22 Ark. 170; Saveland v. Green, 
 40 Wis. 431. 
 
 Where the principal ratifies the acts of 
 a sub-agent, as by accepting the benefits 
 of his transactions, he thereby ratifies the 
 appointment of the sub-agent. Willinks 
 V. Hollingworth, 6 Wheat. (U. S.) 259; 
 Strickland v. Hudson, 55 Miss. 255. See 
 Sub- AGENTS, post. 
 
 8. Adams v. Robinson, 65 Ala. 586, 
 Rundle v. Moore, 3 Johns. Cas. (N. Y.) 
 36; Loeb V. Hellman, 45 N. Y. Super, 
 Ct. 336; Blot V. Boiceau, l Sandf. Sup. 
 Ct. (N. Y.) in; Johnson v. N. Y. Cent. 
 R. Co., 31 Barb. (N. Y.) ig6- Williams 
 ■V. Littlefield, 12 Wend. (N. Y.) 362; 
 Scott w. Rogers, 31 N. Y. 676; Laverty 
 V. Snethen, 68 N. Y. 522; Wilts v. Mor 
 rell, 66 Barb. (N. Y.) 511, Le Guen v 
 
 869 
 
Duties of Agents. 
 
 AGENCY. 
 
 To Obey Instructions. 
 
 Where the authority or instructions require the agent to do an 
 illegal or immoral act.* 
 
 Where a deviation from the strict performance of his authority 
 
 Governeur, ' Johns. Cas. (N. Y.) 437 «.; 
 Allen V. Suydam, 20 Wend. (N. Y.) 321; 
 s. c, 32 Am. Dec. 555; Bennett v. Aus- 
 tin, 8r N. Y. 308; Leverick u. Meigs, i 
 Cow. (N.,Y.) 645; Chavanne v. Frizola, 
 
 25 La. Ann. 77; Nesbit v. Burry, 25 
 Pa. 208 •. Persch v. Quiggle, 57 Pa. St. 
 247; Dodge V. Tileston, 12 Pick, (Mass.) 
 328: Rommel v. Wingate, 103 Mass. 327; 
 Wilson Sewing M. Co. v. Louisville, etc., 
 R. Co., 71 Mo. 203; Butts V. Phelps, 79 
 Mo. 302; Fowler v. Colt, 25 N. J. Eq. 
 202- Loehnberg v. Atherton, 6 N. East. 
 R. (.Mass.) 768; Godman v. Meixsel, 53 
 Ind. II ; Osborne v. Rider, 62 Wis. 
 235 ; Williams v. Higgins, 30 Md. 404 ; 
 Lee V. Clements, 48 Ga. 128; Sawyer v. 
 Mayhew, 51 Me. 398 ; Ferguson v. Por- 
 ter, 3 Fla. 27 ; Robinson Mach. Works 
 V. Vorse, 52 Iowa, 207 ; Clark v. Rob- 
 erts, 26 Mich. 506 ; Bank of Owensboro 
 V. Western Bank, 13 Bush (Ky.), 526; 
 Nicolai v. Lyon, 8 Oregon, 56 ; Thorn- 
 ton V. Boyden, 31 111. 200 ; Brown v. 
 McGrau, 14 Pet. (U. S.) 480 ; Walker v. 
 Smith, 4 Dall. (U. S.), 389. Compare 
 Milbank v. Dennistoun, 21 N. Y. 386. 
 
 Where an agent was 'instructed to send 
 an amount of money by express and he 
 instead bought a check and sent it by 
 mail, and before the check could be col- 
 lected the drawer failed, the agent was 
 held liable. Walker v. Walker, 5 Heisk. 
 (Tenn.) 425. 
 
 W., being authorized to sell certain 
 land of defendant, subject to a certain 
 lease made a written contract of sale to 
 plaintiff, by which he assumed to bind 
 his principal to convey the land " in fee- 
 simple, and with a perfect title free from 
 all incumbrances." Held, that the con- 
 tract is unauthorized, and not enforcea- 
 ble. Thomas v. Joslin, 30 Minn. 388. 
 
 A principal directed an agent to send 
 him $300 in bills of $50 or $100 each. 
 He sent it in bills of smaller amount, 
 and the money was lost. The court 
 held that the agent did not follow his 
 instruction and was liable to the prin- 
 cipal for the loss. • Wilson v. Wilson, 
 
 26 Pa. St. 394; Butts v. Phelps, 79 Mo. 
 302. 
 
 An agent was employed to sell for a 
 specific sum. His agreement to sell for 
 a sum less than that nominated in his 
 authority, and to pay taxes, was there- 
 fore of no binding force upon his princi- 
 pal. Holbrook v. McCarthy, 61 Cal. 2i6. 
 
 The mere fact that the agent in dis- 
 obeying instructions intended to promote 
 the principal's interests will not exoner- 
 ate him. Rechtscherd v. Accommoda- 
 tion Bank, 47 Mo. 181; Courcier v. Rit- 
 ter, 4 Wash. C. C. (U. S.) 549; Coker v. 
 Ropes, 125 Mass. 577. 
 
 Where an agent acts against his in- 
 structions, and the principal afterward 
 either expressly or impliedly ratifies the 
 act, the principal will be bound. Bray 
 w. Gunn, 53 Ga. 144; Joslin v. Cowee, 
 52 N. Y. 90. See Ratification, j*oj?. 
 
 1., Elmore v. Brooks, 6 Heisk, (Tenn.) 
 45; Brown v. Howard, 14 Johns. (N. Y.), 
 119; Davis V. Barger, 57 Ind. 54; Green- 
 wood V. Curtis, 6 Mass., 58; s. c, 4 Am. 
 Dec. 145; Brookover v. Hurst, i Mete. 
 (Ky.) 665; Smith v. Godfrey, 8 Fost. 
 (N. H.) 382; s. c, 61 Am. Dec. 617; Bibb 
 V. Bibb, 17 B. Monr. (Ky). 292; Marks- 
 bury V. Taylor, 10 Bush (Ky.), 519. 
 
 Where an agent was appointed to in- 
 fluence members of a legislature as a 
 lobbyist, the contract was held to be ille- 
 gal and void. Trist v. Child, 21 Wall. 
 (U. S.)44i; Clippinger v. Hepbaugh, 5 
 W. & S. (Pa.) 315; s. c.,40 Am. Dec. 
 519; Harris v. Roof, 10 Barb. (N. Y.) 
 489; Rose V. Truax, 21 Barb. (N. Y.) 
 361; Marshall z/. Baltimore, etc., R. Co., 
 16 How. (U. S.) 314. 
 
 While the courts will not enforce an 
 illegal contract between the parties, yet 
 if an agent of one of the parties has, in 
 the prosecution of the illegal enterprise 
 for his principal, ■ received money or 
 other property belonging to his principal, 
 he is bound to turn it over to him, and 
 cannot shield himself from liability 
 therefor upon the ground of the illegality 
 of the original transaetion. Norton v. 
 Blinn, 39 Ohio St. 145; Church v. Steg- 
 ner, 21 Ohio St. 488; Baldwin v. Potter, 
 46 Vt. 402; Evans v. Trenton, 4 Zab. 
 (N. J.) 764; Brooks v. Martin, 2 Wall. 
 (U. S.) 70; Tenant v. Elliott, i B. & P. 
 2; Pointer v. Smith, 7 Heisk. (Tenn.) 
 137; Murray v. Vanderbilt, 39 Barb. (N. 
 Y.) 140; Daniels v. Barney, 22 Ind. 207; 
 Wood's Mas. and Ser. § 202. 
 
 The burden of proof of the illegality of 
 an order of a principal is upon the agent. 
 He must show that he has a legal reason 
 to refuse to execute the order. Chicago 
 & N. W. R. Co. V. Bay Field, 37 Mich. 
 205. See also Liability of Principal 
 FOR Torts of Agents. 
 
 370 
 
Duties of Agents, 
 
 AGENCY. 
 
 To Conform to TTsage^. 
 
 is due to necessity or to unforeseen emergencies which are them- 
 selves not due to the agent's default.^ 
 
 Where the terms of the authority have been substantially per- 
 formed, a circumstantial variance will be held to be immaterial.** 
 
 In the Absence of Instructions, to Conform to Usage or Recognized' 
 Mode of Dealing. — Where an agent is commissioned to do any act, 
 nothing being said as to the mode of performance, he will have an 
 implied power to perform his duties in accordance with any recog- 
 nized usage or mode of dealing.^ 
 
 7!? Use Reasonable Skill and Ordinary Diligence. — The agent is 
 understood to contract for reasonable skill and ordinary diligence, 
 and he is consequently liable to his employer for injuries occasioned 
 by the want of reasonable skill, and also for ordinary neghgence. 
 By reasonable skill we are to understand such as is, and no more 
 than is, ordinarily possessed and employed by persons of common 
 capacity engaged in the same trade, business, or employment ; by 
 ordinary diligence, that degree of diligence which persons of com- 
 mon prudence are accustomed to use about their own business 
 and affairs.* 
 
 1. Judson V. Sturges, 5 Day (Conn.), 
 556; Drummond v. Wood, 2 Cai. (N. Y.) 
 310; Liotard v. Graves, 3 Cai. (N. Y.) 
 226; Lawler v. Keaquick, i Johns. Cas. 
 (N. Y.) 174; Forrestier v. Bordman, i 
 Story (U. S.) 43; Dusar v. Perit, 4 Binn. 
 (Pa.) 361; Greenleaf v. Moody. 13 Allen 
 (Mass.), 363; Bernard !<. -Maury, 20 Gratt. 
 (Va.) 434; Harter v. Blanchard, 64 Barb. 
 (N. Y.) 617; Wood V. Cooper, 2 Over. 
 (Tenn.) 441. See also Shipmasters. 
 
 Emergencies may arise in which a 
 factor or agent may from the necessities 
 of the case be justified in assuming ex- 
 traordinary power and his acts fairly 
 done under such circumstances bind the 
 principal. Acts done in the bona fide ef- 
 forts to save perishing property come 
 within the rule. Jervis v. Hoyt, 2 Hun. 
 (N. Y.), 637; Greenleaf v. Moody, 13 
 Allen (Mass.) 363; Goodwillie v. Mc- 
 Carthy, 45 111. 186. 
 
 And especially is this the case when not 
 only the principal's interests are endan- 
 gered, but also the interests of the agent. 
 Brown v. M'Grau, 14 Pet. (U. S.) 480; 
 Parker v. Brancker, 22 Pick. (Mass.) 40; 
 Stall V. Meek, 70 Pa. St. 181; Milbank 
 V. Dennistoun, 21 N. Y. 386; Frothing- 
 ham V. Everton, 12 N. H. 239. 
 
 2. Parkhill v. Imlay, 15 Wend. (N. Y.) 
 
 431. 
 
 3. Lovejoy v. Middlesex R. Co., 128 
 Mass. 480 ; Grant v. Ludlow, 8 Ohio 
 St. 54; Bailey v. Bensley, 87 111. 566; 
 Walker v. Walker, 5 Heisk. (Tenn.) 425; 
 Wanless v. McCandless, 38 Iowa, 20; 
 De Lazardii'. Hewitt,7 B. Mon. (Ky.) 697; 
 Byrne v. Schwing 6 B. Mon. (Ky.) 199; 
 
 Lausattw. Lippincott, 6S. & R. (Pa.) 392;. 
 Le Roy t,. Beard, 8 How. (U. S.) 451; 
 Delafield v. State of 111., 26 Wend. (N. 
 Y.) 192; Smedes v. Utica Bank, 20 Johns. 
 (N. Y.) 372; White v. Fuller, 67 Barb. 
 (N. Y.) 267; Miranda v. City Bank, 6. 
 La. 740. 
 
 A factor without special instruction to 
 sell for cash only may sell on credit for a. 
 period established by the usage of trade 
 in his line of business. Van Alen v. 
 Vanderpool, 6 Johns. (N. Y.) 69; Robert- 
 son V. Livingston, 5 Cow. (N. Y.) 473, 
 Burrill v. Phillips, i Gall. (U. S.) 360; 
 Forrestiec v. Bordman, i Story (U. S.),. 
 43; Greely v. Bartlett, i Greenl. (Me.). 
 172; s. c, 10 Am. Dec. 54. 
 
 Or take a negotiable note in payment. 
 Goodenow v. Tyler, 7 Mass. 36; Tarltoa 
 V. M'Whorter, 5 Stew. & Port. (Ala.) 284;, 
 Kidd V. King, 5 Ala. 84; Rogers v. 
 White, 6 Greenl. (Me.) 193; Dwight v.. 
 Whitney, 15 Pick. (Mass.) 179. 
 
 4. Story on Agency, § 183; Whitney 
 V. Martine, 88 N. Y. 535; First Nat. Bank 
 of Meadville v. Fourth Nat. Bank of N. 
 Y., 77 N. Y. 320; Heineman v. Heard,, 
 50 N. Y. 27; Gleason v. Clark, 9 Cow.. 
 (N. Y.) 57; Leverick v. Meigs, i Cow.. 
 (N. Y.) 645; Lawler v. Keaquick, i Johns. 
 Cas. (N. Y.) 174; Bigelow v. Walker, 24 
 Vt. 149; s. c, 58 Am. Dec. 156; Wilmot. 
 V. Howard, 39 Vt. 447; Gheen w. Johnson, 
 90 Pa. St. 38; Fowler v. Sergeant, z 
 Grant Cas. (Pa.) 355; Deshler v. Beers, 
 32 111. 368; Gettins v. Scudder, 71 111. 86; 
 Fay V. Strawn, 32 111. 295; Gilson v. 
 Collins, 66 111. 136; Matthews v. Fuller, 
 123 Mass. 446; Savage v. Birkhead, 2a 
 
 371 
 
Duties of Agents. 
 
 AGENCY. 
 
 To Make full Disclosure. 
 
 To Make a Full Disclosure where he has an Adverse Interest. — 
 An agent will not be allowed to place himself in a position in which 
 his duty and interest conflict, or be permitted to make a secret 
 profit out of his agency.'^ 
 
 Pick. (Mass.) 167; Varnum v. Martin, 15 
 Pick. (Mass.) 440; Harriman v. Stowe, 
 57 Mo. 93; Williams v. Higgins, 30 Md. 
 404; Myles V. Myles, 6 Bush (Ky.), 237; 
 Evans v. Watrous, 2 Port. (Ala.) 205; 
 Webster v. Whitworth, 49 Ala. 201 ; New 
 Orleans R. Co. v. Albritton, 38 Miss. 
 242; s.. c, 75 Am. Dec. 98; Long v. 
 Morrison, 14 Ind. 595; Babcock v. Or- 
 bison, 25 Ind. 75; Wood v. Clapp, 4 
 Sneed (Tenn.), 65; Patten v. Wiggin, 51 
 Me. 594; Howard v. Grover, 28 Me. 97; 
 s. c, 48 Am. Dec. 478; Leighton v. Sar- 
 gent, 7 Fost. (N. H.) 460; s. i;., 59 Am. 
 Dec. 388; Marsh v. Whitmore, 2i Wall. 
 (U. S.) 178; HoUiday v. Kennard, 12 
 Wall. (U. S.) 254; Trinidad Nat. Bank v. 
 Demen Nat. Bank, 4 Dill. (U. S.) 290; 
 Milwaukee Bank v. City Bank, 103 U. S. 
 668. 
 
 He must give his principal timely 
 notice of every fact coming to his knowl- 
 edge necessary for the latter's security. 
 Moore v. Thompson, 9 Phil. (Pa.) 164. 
 Compare Pierce v. Chicago, etc., R. 
 Co., 36 Wis. 283. 
 
 Where the agent of a commissioner for 
 the sale of county property delivered the 
 commissioner's deed to the purchaser 
 without receiving the purchase-money, 
 he thereby assumes the payment of it 
 himself. Jacks v. State, 44 Ark. 61. 
 
 An agent who, by neglect and want of 
 diligence, .fails to collect money of his 
 principal loaned by him is liable for the 
 loss. Rochester v. Levering, 104 Ind. 
 562. See Dickson v. Screven, 23 s- 
 Car. 212. 
 
 And it does not matter whether the 
 services of the agent are rendered gratu- 
 itously or for a consideration. Thorne 
 V. Deas, 4 Johns. (N. Y.) 84; Benden w. 
 Manning, 2 N. H. 289; Gill v. Middle- 
 ton, 105 Mass. 477; Bank of New Han- 
 over V. Kenan, 76 N. Car. 340; Williams 
 V. Higgins, 30 Md. 404. 
 
 But he will not be liable if the exercise 
 of reasonable care on the part of the 
 principal could have prevented the loss. 
 Sioux City, etc., R. Co. v. Walker, 49 
 Iowa, 273. 
 
 The agent is not liable for such acci- 
 dental losses as may occur in the course 
 of his employment, and which could not 
 be prevented by the exercise of reasonable 
 skill and ordinary diligence. Lake, etc., 
 Co. V. McVean, 32 Minn. 301; Page v. 
 Wells, 37 Mich. 415; Fick v. Runnels, 48 
 
 Mich. 302; James v. Borgois, 4 Baxt. 
 (Tenn.) 345; Bannon v. Warfield, 42 Md. 
 22; Weakley v. Pearce, ,? Heisk. (Tenn.) 
 401; Hale V. Wall, 22 Gratt. (Va.) 424. 
 
 A trustee is bound to make safe invest- 
 ments, such as will yield a reasonable 
 income, and a return of the principal 
 when desired ; and he ought not, as a gen- 
 eral rule, to invest in second mortgages; 
 but he will not be held personally liable 
 simply because he has done so, in the ab- 
 sence of proof that loss has ensued or will 
 probably ensue. Porter v. Woodruff, 36 
 N. J. Eq. 174. See Whitney v. Martine, 
 6 Abb. N. Cas. (N. Y.) 72. 
 
 A. was employed as bookkeeper of a 
 firm composed of B. and C, upon the 
 dissolution of which B. bought the inter- 
 est of C. therein, and continued A. in his 
 employ for a short time. A. was author- 
 ized by C. to settle with B. in his behalf. 
 After the dissolution, A. and B. looked 
 over the partnership accounts together, 
 and B. had the books for examination for 
 the purpose of ascertaining how the ac- 
 counts stood, and what amount Vvas due 
 to each partner. A statement of the 
 partnership accounts was made by A., 
 showing a certain sum due to C, which 
 
 B. paid to A. as C.'s agent. This state- 
 ment was in fact erroneous, and the sum 
 paid by B. was in excess of the sum due 
 
 C. on the settlement. A. said to B., at 
 the time of the settlement, that, if it was 
 not right, it should be made right. There 
 was no intentional fraud or misrepresen- 
 tation on A.'s part, and he had no per- 
 sonal interest in the settlement, and only 
 acted as agent of the partners. Held, on 
 a bill in equity by B. against A. and C, 
 that A. was not liable to B. in any form 
 of action. Richardson v. Taylor, 136 
 Mass. 143. 
 
 An agent is not responsible for damages 
 caused by his mistake in a doubtful mat- 
 ter of law. Mechanics' Bank v. Merch. 
 Bank, 6 Mete. (Mass.) 13; Howe v. Dew- 
 ing, 2 Gray (Mass.), 476; Hicks v. Min- 
 turn, 19 Wend. (N. Y.) 550; Watson v. 
 Rickard, 25 Kans. 662; Rice v. Melendy, 
 41 Iowa, 395. 
 
 In> case of the death of the agent, his 
 estate will be liable to his principal for 
 losses occasioned by his negligence or 
 lack of skill. Robinson Mach. Works v. 
 Vorse, 52 Iowa, 207. 
 
 , 1. White V. Ward, 26 Ark. 445; 
 Schoellkopf v. Leonard, 6 Pac. Repr. 
 
 372 
 
'J)nties of Agents, 
 
 AGENCY. 
 
 Officers of Corporations. 
 
 Officers of Corporations- 
 of a corporation, although 
 
 -The same rule holds good for officers 
 representing a majority of the stock ; 
 
 fColo.) 2og; Watson v. Union, etc., Co., 
 15 111. App. 509; Bowman v. Officer, 53 
 Iowa, 640; Persch v. Quiggle, 57 Pa. St. 
 247; Pratt v. Patterson, 3 Cent. Repr. (Pa.; 
 120; Everhardt v. Searle, 71 Pa. St. 256; 
 Audenreid v. Walker, 11 Phila. (Pa.) 183; 
 Krutz V. Fisher, 8 Kans. 90, 9 Kans. 501; 
 Neilson v. Bouman, 29 Gratt. (Va.) 732; 
 Bell V. Bell, 3 W. Va. 183; Cook v. Ber- 
 lin Woolen Mills Co., 43 Wis. 433; Mc- 
 Mahon v. McGraw, 26 Wis. 614; Meyer 
 ~u. Hanchett, 39 Wis. 419; s. c, 43 Wis. 
 246; Draughen v. Quillen, 23 La Ann. 
 .237; Greenfield Sav. Bank v. Simons, 
 J33 Mass. 415; Farnsworth v. Hemmer, 
 I Allen (Mass.), 494; s.^c, 79 Am. Dec. 
 ■756; Walker v. Osgood, 98 Mass. 348; 
 Rice V. Wood, 113 Mass. ,133; s. c, 18 
 Am. Rep. 459; Holcomb v. Weaver, 136 
 Mass. 265; Dodd v. Wakeman, 26 N. J. 
 . Eq. 484; Condit v. Blackwell, 22 N. J. 
 Eq. 481; Young v. Hughes, 32 N. J. Eq. 
 372; Porter v. Woodruff, 36 N. J. Eq. 
 174; Van Epps v. Van Epps, g Paige Ch. 
 ■(N. Y. ) 237; Marvin v. Buchanan, 62 
 Barb. (N. Y.)468; Moore w. Moore, 5 N. 
 Y. 256; N. Y., etc., Ins. Co. v. Nat., etc., 
 Ins. Co., 14 N, Y. 85; McMillan v. Ar- 
 thur, 98 N. Y. 167; Bennett z". Austin, 81. 
 N. Y. 308; Dutton V. Winner, 52 N. Y. 
 312; Wilson V. Wilson, 4 Abb. App. Dec. 
 ■(N. Y.) 621; Greenwood v. Spring, 54 
 Barb. (N. Y.) 375; Dunlop v. Richards, 2 
 E. D. Smith (N. Y.), 181; Pugsley w. Mur- 
 Tay, 4 E. D. Smith (N. Y.), 245; Lafferty 
 V. Jelly, 22 Ind. 471; Ackenburgh v. Me- 
 thod, 36 Ind. 473; Love v. Hoss, 62 Ind. 
 255; Peckham Iron Co. v. Harper, 41 
 Ohio ^St. 100; Bell v. McConnell, S 37 
 Ohio St. 396; s. c, 41 Am. Rep. 528; 
 Capenerz'. Hogan, 40 Ohio St. 203; Sun- 
 derland V. Kilbourn, 3 Mack. (D. C.) 506; 
 Hirickley v. P^te:y, 27 Me. 362; Raisin v: 
 Clark, 41 Md. 158; s. c, 20 Am. Rep. 66; 
 BoUman v. Loomis, 41 Conn. 581; Lynch 
 ■V. Fallon, 11 R. I. 311; s. c, 23 Am. Rep. 
 458; Atlee V. Fink, 75 Mo. 100; s. c, 42 
 Am. Rep. 385; Adams, Mining Co. v. 
 Senter, 26 Mich. 73 ; Colwell v. Keystone 
 Co., 36 Mich. 51; Sumner v. Charlotte, 
 ■etc., R. Co., 78 N. Car. 289; Lloyd v. 
 ■Colston, 5 Bush(Ky.), 587; Northern Pad 
 R. Co. V. Kindred, 3 McCrary (.U. S.), 
 627; s. c, 14 Fed. Repr. 77; Ferguson v'. 
 Dent, 24 Fed. Repr. 412; Oscanyon v. 
 Arms Co , 103 U. S. 261. 
 
 Plaintiff, station agent of a railroad 
 company, sues the company in damages 
 for breach of an alleged contract in fail- 
 ing to furnish a train for an excursion. 
 Upon correspondence had, the company 
 
 supposed the train was intended for a 
 third party and agreed to supply it on 
 certain terms, but afterwards refused on 
 discovering that plaintiff was attempting 
 to procure it for his own benefit. Held', 
 that plaintiff could not from his fiduciary 
 relation towards the company enter into 
 a binding contract with it for such pur- 
 pose, unless it agreed thereto after being 
 fully advised of all the circumstances. 
 Pegr&pi V. R. Co., 6 Am. & Eng. R. R. 
 Cas. 470; s. c, 84 N. Car. 696; s. u., 37 
 Am. Rep. 639. 
 
 The most open, ingenuous, and disin- 
 terested dealing is required of a confiden- 
 tial agent, and there must be an unam- 
 biguous relinquishment of his agency 
 before he can acqiiire a personal interest 
 in the subject of it. Bartholomew u. 
 Leech, 7 Watts (Pa.), 472. 
 
 In the employment of an agent the 
 principal bargains for the disinterested 
 skill, diligence, and zeal of the agent for 
 his own exclusive benefit. There rests 
 upon one becoming agent the duty of 
 fidelity to his employer's interest, and of 
 acting for the furtherance and advance- 
 ment of the business in which he engages, 
 and not in its injury. Where a confiden- 
 tial agent of one having a lease of a thea- 
 tre, who, from his position, was well ac- 
 quainted with the profits of his principal 
 in the use of the building, and who knew, 
 some months before the old lease expired, 
 that the latter was desirous of renewing 
 his lease, offered privately to lease the 
 theatre of the owner, proposing to give a 
 larger rental than was reserved in the old 
 lease, and denied to his .principal that he 
 was competing with him for the lease, 
 but in fact did procure a lease to be made 
 to himself, it was held, that the benefit of 
 such lease a court of equity would hold to 
 inure to his principal, and that the agent 
 would be held to hold the same as a trus- 
 tee for his principal. Davis v. Hamlin, 
 108 111. 39; s. c, 48 Am. Rep. 541; 
 Gower z/. Andrew, 59 Cal. 119; s. c, 43 
 Am. Rep. 242. 
 
 A authorized B to manage her lands, 
 and, while he was thus acting, wrote ask- 
 ing him what he would give for the prop- 
 erty. He offered her f 6000, and she 
 accepted the offer and conveyed the 
 property to him. Before he made the 
 offer C had talked of purchasing a part 
 of the land for $6000, and, before B sent 
 the money to A, had offered to pay him 
 that amount, and $250 for his trouble in 
 the matter. C told B that if he did not 
 accept the offer he would give $8000 for 
 
 J C. of L. — 25 
 
 873 
 
Duties of Agents. 
 
 AGENCY. 
 
 Officers of Corporations.. 
 
 they may not deal with themselves to the detriment of the other 
 stockholders for whom they are acting.* 
 
 the whole property. B never informed 
 A of the offer. Held, that A could re- 
 scind the sale to B. Savage v. Savage, 
 12 Oregon, 459. See Mason v. Bauman, 
 62 111. 76; Bain v. Brown, 56 N. Y. 285. 
 
 If an agent discovers a defect in a title 
 of his principal to land, he cannot misuse 
 the discovery to acquire a title for him- 
 self; and if he does he will be held as a 
 trustee holding for his principal. Ringo 
 V. Binns, 10 Pet. (U. S.) 269; Fisher v. 
 Krutz, 9 Kans. 501; Galbraith v. Elder, 
 8 Watts (Pa.), 281; Cleavinger v. Reimar, 
 3 W. & S. (Pa.) 486; Cumberland Coal 
 Co. V. Sherman, 30 Barb. (N. Y.) 553; 
 Rogers v. Lockett, 28 Ark. 290 
 
 Plaintiff, a timber broker in New York, 
 having learned that a company required 
 a large number of piles and were about 
 to advertise for bids from timber mer- 
 chants to supply them, visited the several 
 dealers therein in New York and Brook- 
 lyn, among them the defendants, obtained 
 prices, and, under the inducement that he 
 would act for them respectively in pro- 
 curing a sale, obtained a promise, from 
 each that if he secured a sale for such 
 dealer he should receive an agreed com- 
 mission. Plaintiff did not inform the 
 dealers of the name of the intended pur- 
 chaser, or that a contract could be ob- 
 tained only by competitive bidding, or 
 that he had effected a similar understand- 
 ing with other dealers. The company 
 issued proposals, and sent to said dealers, 
 including defendants, invitations to com- 
 pete for the contract. Plaintiff, defend- 
 ants, and other dealers submitted bids for 
 the contract, which was awarded to de- 
 fendants. In an action to recover the 
 agreed commission wherein the above 
 facts appeared, held, that plaintiff was 
 properly nonsuited; that there was no 
 consideration for the agreement; also 
 that there was a suppression of material 
 facts on the part of plaintiff in making 
 the contract; and that it was against 
 good morals, as plaintiff owed duties to 
 dififerent principals, which were conflict- 
 and incapable of faithful performance by 
 the same person; also held, that the 
 proof failed to show any service rendered 
 by plaintiff to defendant in effecting the 
 sale. Murray v. Beard, 102 N. Y. 505. 
 
 Where an agent of a railroad company 
 is charged with the duty of selecting a 
 route or line of railway, he cannot in dis- 
 regard of the interests of the company 
 select a particular route for a commission 
 received from third parties. Holliday v. 
 Davis, 5 Oregon, 40. 
 
 A person who is acting as agent for a 
 woman, being intrusted by her with mon- 
 eys to lend out, and with the general 
 management of her business; and who, 
 being financially embarrassed and on the 
 eve of bankruptcy, without informing her 
 of his pecuniary condition, procures from 
 her a new power of attorney, which she 
 signs without reading it, and without 
 knowledge of its purpose, nature and 
 extent, authorizing him to foreclose a 
 mortgage which he had taken to secure 
 her money loaned, " or to extsnd the time 
 of payment, or to negotiate or leave the 
 same as collateral security, to enable him 
 to raise money for the purpose of putting 
 the same in his business, or any other 
 purpose he may see proper to use said 
 money so raided, ' — is guilty of an abuse 
 of the confidence reposed in him; the gen- 
 eral terms employed in the power of at- 
 torney, so far from conferring any advan- 
 tage on him, or protecting his subsequent 
 acts as agent, rather cast suspicion on 
 them ; and if those acts are prejudicial to 
 his principal, a court of equity will not 
 hesitate to grant relief against them. 
 Whelan v. McCreary, 64 Ala. 319. 
 
 1. Meeker «/. Wiiithrop Iron Co., 17 
 Fed. Rep. 48; Cook v. Berlin Woolen 
 Mill Co., 43 Wis. 433; Robinson v. Smith,. 
 3 Paige, 222; s. c, 24 Am. Dec. 212; 
 Percy v. Millaudon, 3 La. 568; Hodges 
 V. New England Screw Co., i R. I. 312. 
 Parker v. Nickerson, 112 Mass. 195; 
 Gardner v. Butler, 30 N. J. Eq. 702, 
 Brewster v. Stratman, 4 Mo. App. 41. 
 See also Bent v. Priest, 10 Mo. App. 
 543; Parker v. Nickerson, 112 Mass. 195; 
 Chamberlain v. Pacific Wool Growing 
 Co., 54 Cal. 103. Compare Beatty v. 
 Northwestern Transportation Co., 6 Am. 
 & Eng. Corp. Cas. 315, and note, where 
 all the authorities are collected, and also 
 s. c. ; reversed on appeal, 10 Am. & Eng. 
 Corp. Cas. 263, 
 
 Officers of corporations cannot act for 
 themselves and for the corporation they 
 represent. So an officer of a bank em- 
 powered to certify checks cannot certify 
 his own checks. Clafflin v. Farmers*^ 
 Bank, 25 N. Y. 293; Titus v. Great West- 
 ern Turnpike, 5 Lans. (N. Y.) 250; N. Y. 
 Cent. Ins. Co. v. Nat. Prot. Ins. Co., 20 
 Barb. (N. Y.) 468; People v. Overyssel, 
 II Mich. 222; Lloyd v. Colston, 5 Bush 
 (•Ky.) 587; Mullen v. Keetzleb, 7 Bush. 
 (Ky.) 253. 
 
 But the president of a company, know- 
 ing that the stock of his company is worth 
 more than market price, may buy such 
 
 374 
 
Duties of Agents. 
 
 AGENCY. 
 
 Fidaciary Eelations 
 
 Fiduciary Relations. — Whenever one person is placed in such re 
 lation to another by the act or consent of that other, or the act o£ 
 a third person, or of the law, that he becomes interested for him, 
 or interested with him, in any subject of property or business, he is 
 prohibited from acquiring i-ights in that subject antagonistic to the 
 person with whose interests he has become associated.* 
 
 Purchasing Agent may not Buy his own Property. — A person 
 acting as purchasing agent for another cannot buy his own prop- 
 erty for his principal.* 
 
 Selling Agent cannot Buy himself. — An agent with power to 
 sell cannot himself become the' purchaser of his principal's prop- 
 erty. , 
 
 V. Densmore, 64 Pa. St. 43; Short v. 
 Stevenson, 63 Pa. St. 95; and see Wilson 
 V. Wilson, 4 Abb. App. Dec. (N. Y.) 621; 
 Colt V. Clapp, 127 Mass. 476; Uhler v. 
 Semple, 5 C. E. Green, 288. See also 
 Fiduciary Relations. 
 
 2. Story's Eq. Jur. §§ 315, 316; Story 
 on Agency, § 9; Conkey v. Bond, 36 N. 
 Y.427; Taussig V. Hart, 58 N. Y. 425; 
 Tewksbury v. Spruance. 75 111. 187; Ely 
 V. Hanford, 65 111. 267; Beal v. McKier- 
 nan, 6 La. (O. S.) 407; Keighler v. Sav- 
 age Mfg. Co., 12 Md. 383; s. c, 71 Am. 
 Dec. 600; Bischoffsheim v. Baltzer, 20 
 Fed. Repr. 890. 
 
 A factor who has been intrusted to in- 
 sure cannot be himself the insurer. If 
 he insures himself he can recover no 
 premiums, but will be liable in case of 
 loss for not obeying instructions. Keane 
 V. Branden, 12 La. Ann. 20. 
 
 3. Eldredge v. Walker, 60 111. 230; 
 Kerfoot ». Hyman, 52 111. 512; Cope- 
 land V. Mercantile Ins. Co., 6 Pick. 
 (Mass.) 198; Remick v. Butterfield, 31 
 N. H. 70; Martin v. Moulton, 8 N. H. 
 504; Bank v. Farmers' L. & T. Co., i5 
 Wis. 609; C6ok V. Berlin Woolen Mills 
 Co., 43 Wis. 433; Stewart v. Mather, 33 
 Wis. 344; Taussig v. Hart, 49 N Y. 301, 
 58 N. Y. 425; Bain.w. Brown, 56 N. Y. 
 285; Cumberland Coal Co. v. Sherman, 
 30 Barb. (N. Y.) 553; Ruckman v. Berg- 
 holz, 37 N. J. L. 437; Tynes v. Grim- 
 stead, I Tenn. Ch. 508; Parker v. Vose, 
 45 Me. 54; White v. Ward, 26 Ark. 445; 
 Clute V. Barron, 2 Mich. 192; Ames v. 
 Port Huron, etc., Co., ir Mich. 146; 
 Scott V. Mann, 36 Tex. 157; Ingle v. 
 Hartmann, 37 Iowa, 274; Keighler v. 
 Savage Mfg. Co., 12 Md. 383; s. c, 71 
 Am. Dec. 600; Marsh v. Whitraore, 21 
 Wall. (U. S.) 178; Jeffries v. Wiester, 2 
 Sawy. (U. S.) 135. 
 
 An agent having charge of lands can- 
 not by a purchase of a tax-sale certificate 
 from the county for those lands make 
 himself the owner of the land as against 
 
 stock of a stockholder who has no such 
 knowledge at market price, without dis- 
 closing the facts. There is no such fidu- 
 ciary relation between them as to make 
 the sale void in the absence of fraud. 
 Commissioners of Tippecanoe v. Rey- 
 nolds, 44 Ind. 509. 
 
 1. Devall V, Burbridge, 4 Watts & S. 
 (Pa.) 305; Hill V. Frazier, 22 Pa. St. 320; 
 Bennett v. Van Syckel, 4 Duer (N. Y.), 
 462; Case V. Carroll, 35 N. Y. 385; 
 Smeltzer v. Lombard, 57 Iowa, 294; 
 Fairman v. Bavin, 29 111. 75; Oilman, 
 etc., R. Co. V. Kelly, 77 111. 426; Davis 
 V. Hamlin, loS 111. 39; s. c , 48 Am. 
 Rep. 541; Eldridge v. Walker, 60 111. 230; 
 Freeman v. Harlman, 45 111. 57; Gillen- 
 waters v. Miller, 49 Miss. 150; Green- 
 field Sav. Bank v. Simons, 133 Mass. 
 415; Grumley v. Webb, 44 Mo. 444; Cad- 
 wallader v. West. 48 Mo 483; Peckham 
 Iron Co. V. Harper, 41 Ohio St. 100; Por- 
 ter V. Woodruff, 36 N. J. Eq. 174; Hay- 
 nie V. Johnston, 71 Ind. 394; Dieringer 
 V. Meyer, 42 Wis. 311; s. c, 24 Am. 
 Rep. 415; Wilber v. Hough, 49 Cal. 290. 
 
 An executor, assignee, orguaroian can- 
 not purchase at private sale the property 
 of his cestui gue trust; but in the absence 
 of fraud a purchase by him at an auction 
 sale will be valid. Chorpening's Appeal, 
 32 Pa. St. 315; Fisher's Appeal, 34 Pa. 
 St. 29. 
 
 And where there are two trustees, one 
 cannot sell and the other buy such prop- 
 erty. Davone v. Fanning, 2 Johns. Ch. 
 (N. Y.) 261; Gaines v. Allen, 58 Mo. 537; 
 Wade V. Harper, 3 Yerg. 353. 
 
 Where persons have formed an asso- 
 ciation, or are dealing in contemplation 
 of one, then they stand in a confidential 
 relation to each other and to all who may 
 subsequently become members, and they 
 cannot purchase any property and sell it 
 to the company at an advance without a 
 full disclosure of all the facts. If they do 
 so, the company may compel them to ac- 
 count for the profit. Densmore Oil Co. 
 
 375 
 
Duties of Agents. 
 
 A GENC Y. May Buy direct from Principal. 
 
 May Buy Direct from Principal. — An agent may, however, buy 
 directly from a principal who acts with full knowledge, and 
 
 his principal. Fisher v. Krutz, 9 Kans. 
 501; Murdoch v. Milner, 84 Mo. g6; 
 Bartholomew v. Leech, 7 Watts (Pa.), 
 172. See also Oldhams v. Jones, 5 B. 
 Mon. (Ky.) 458; Schedda v. Sawyer. 4 
 McLean (U. S.)> 181; Morris v. Joseph, 
 1 W. Va. 256; Grumley v, Webb, 44 
 Mo. 444. 
 
 The rule also applies to public officers. 
 People V. Township Board, 11 Mich. 222. 
 
 An agent having control of real estate, 
 renting it out, collecting the rents, pay- 
 ing taxes and insurance, and having 
 power to sell, cannot himself become 
 the purchaser of the property at a sale 
 under a mortgage, and hold it against his 
 principal; especially where, by private 
 agreement with the mortgagee, he in- 
 duces the latter not to bid against him. 
 Adams ». Sayre, 70 Ala. 318. 
 
 An agent employed to take care of and 
 manage his principal's property cannot 
 acquire any title thereto by purchase at 
 sheriff's sale, as against his principal, 
 while such relation exists. Fountain 
 Coal Co. V. Phelps, 95 Ind. 271; Fisher 
 ■V. Krutz, 9 Kans. 501 ; Bowman v. Offi- 
 cer, 53 Iowa, 640; Rogers v. Lockett, 28 
 Ark. 290. 
 
 The clerk of an agent to sell lands, who 
 is employed or concerned in the affairs 
 of the seller relating to the property, is 
 alike with the agent prohibited from pur- 
 chasing; and if he does so, the seller may 
 compel him to reconvey the lands or 
 account for their proceeds. Gardner v. 
 Ogden, 22 N. Y. 327; s. c, 78 Am. Dec. 
 192; Lingke v. Wilkinson, 57 N. Y. 445; 
 Cheeseman v. Sturges, 9 Bosw. (N. Y.) 
 246; Levy V. Brush, 8 Abb. Pr. N. S. 
 (N. Y.)4i8; Newcomb v. Brooks, 16 W. 
 Va. 32. 
 
 An executor charged with the sale of 
 lands to pay a debt may not purchase 
 such lands for himself on execution sale 
 against the testator. Marshall v. Car- 
 son, 38 N. j. Eq. 250; s. c..'48 Am. Rep. 
 319. See Lytle v. Beveridge, 58 N. Y. 
 592; Fulton V. Whitney, 66 N. Y. 548; 
 Parkhurst v. Alexander, i Johns. Ch. 
 (N. Y.) 394; Davone v. Fanning. 2 Johns. 
 Ch. (N. Y.) 252; Moore v. Moore, 5 
 N. Y. 256; Gardner v. Ogden, 22 N. Y'. 
 327; s. c, 78 Am. Dec. 192; People v. 
 Open Board of S. B. B. Co.. 92 N. Y. 
 98; Ives z/. Ashley, 97 Mass. 198; Greene 
 V. Haskell. 5 R. I. 447; Kruse v. Stef- 
 fens, 47 111. 112; Walker v. Palmer, 24 
 Ala. 358; Shannon v. Marmaduke, 14 
 Tex. 247; Staats v. Bergen, 17 N. J. Eq. 
 297, 554; Piatt -v. Longworth, 27 Ohio 
 
 St. 159; Massie v. Watts, 6 Cranch. (U. 
 S.) 148; Baker v. Whiting, 3 Sumner 
 (U. S.), 475; Bradley v. Tarwell, i 
 Holmes (U. S.), 433: Michoud v. Girod, 
 4 How. (17. S.) 503; Marsh v. Whitmore, 
 21 Wall. (U. S.) 178. 
 
 A purchase i)y the selling agent, al- 
 though made at auction, for full value 
 and by perfectly fair means, will be set 
 aside upon application of the principal if 
 made promptly. Scott v, Freeland, 15 
 Miss. 409; s. c, 45 Am. Dec. 310; Broth- 
 ers V. Brothers. 7 Ired. Eq. (N. Car.) 
 150; Patton V. Thompson. 2 Jones Eq. 
 (N. Car.) 285; Mason v. Martin, 4 Md. 
 124; Martin v. Martin, 12 Ind. 266; 
 Newcomb v. Brooks, 16 W. Va. 32. 
 
 Even where he is empowered to sell at 
 a stipulated price. Ruckman w. Berg- 
 holz, 37 N. J. L. 437; Porter v. Wood- 
 ruff, 36 N. J. Eq. 174; Peckham Iron Co. 
 V. Harper, 41 Ohio St. 100. 
 
 And where he sells to himself for the 
 minimum price fixed by the principal he 
 will be liable for the difference between 
 market value and value paid by him. 
 Greenfield Sav. Bank v. Simons, 133 
 Mass. 415. 
 
 The principal, seeking to set aside the 
 agent's purchase at the mortgage sale, 
 will be required, at least, to refund the 
 purchase-money ' paid, with interest, 
 moneys expended in repairs and perma- 
 nent improvements, taxes, and other 
 lawful charges, with interest thereon; 
 while the agent will be required to ac- 
 count for rents and profits, or, if in pos- 
 session, for use and occupation, as of 
 the value of the property when he took 
 possession, not estimating the increased 
 value by reason of his improvements. 
 The agent having become the purchaser 
 at a mortgage sale, and claiming to hold 
 possession in his own right, he is not en- 
 titled, as against his principal seeking to 
 set aside the sale and to redeem, to com- 
 pensation for his management of the 
 property during such possession, nor for 
 attorney's fees and costs incurred in 
 ejecting a defaulting tenant. Adams v. 
 Sayre, 76 Ala. 509. 
 
 An agent cannot in general be allowed 
 to purchase an interest tn property where 
 he has a duty to perform which is incon- 
 sistent with the character of a purchaser. 
 Grumley v. Webb, 44 Mo. 444. 
 
 Where the owner of certain real estate 
 gives authority to an aeent to sell aha 
 same, and such agent, without the knowl- 
 edge or consent of his principal, enters 
 into a contract with a person who is a 
 
 376 
 
Duties of Agents, 
 
 A GENC Y. May Buy direct from Principal. 
 
 where there is no concealment or deception on the part of the 
 agent. 1 
 
 partner of the agent in the purchase and 
 sale of such property to sell the property 
 to such person, held, that such contract 
 of purchase and sale will not be specifi- 
 cally enforced as against the owner of 
 the land. Fry v. Piatt, 32 Kans. 62; 
 Francis v. Kerker. 85 111. 190. See 
 Reimers v. RIdher, 2 Rob. (N. Y.) 11. 
 
 Where an agent to sell enters into a 
 contract with one desiring to buy, that 
 he will introduce him to the vendor and 
 promote the sale if he will subsequently 
 sell him part of the property at an agreed 
 price, such contract is invalid and can- 
 not be enforced. Smith ■v. Townsend, 
 log Mass. 500; Hughes v. Washington, 
 72 111. 84. 
 
 When an agent having control of his 
 principal's property, with power to rent 
 or sell, becomes the purchaser at a sale 
 under a mortgage, his purchase is not 
 void, but, like a purchase by a mortga- 
 gee at his own sale, is voidable merely at 
 the option of his principal, seasonably 
 expressed ; and when the principal seeks 
 to set it aside, he will be required to do 
 equity. Adams v. Sayre, 76 Ala. 509; 
 Eastern Bank v. Taylor, 41 Ala. 93; 
 Bassett v. Brown, 105 Mass. 551; Wads- 
 worth V. Gay, 118 Mass. 44; Uhlich v. 
 Muhlke, 61 111. 499; Leach v. Fowler, 22 
 Ark. 143; Greenwood v. Spring, 54 Barb. 
 (N. Y.) 375; Marsh u. Whitmore, 21 
 Wall. (U. S.) 178. 
 
 The agent of a bank selling property 
 which had been pledged to the bank for 
 a loan may purchase such property if he 
 pays a sufficient sum to discharge the 
 lien; and he will not be held responsible 
 to the bank for any profit he may make 
 out of the sale. Smith v. Lansing, 22 
 N. Y. 520; Cumberland Co. v. Sherman, 
 30 Barb. (N. Y.) 553. 
 
 1. Uhlich V. Muhlke, 61 111. 499; 
 Buell V. Buckingham, 16 Iowa, 284; In- 
 gle V. Hartman, 37 Iowa, 274; Michoud 
 V. Girod, 4 How. (U. S.) 503; Jeffries v. 
 Wiester, 2 Sawy. (U. S.) 135; Keighler 
 ■V. Savage Mfg. Co., 12 Md. 383; s. c, 71 
 Am. Dec. 600; Fisher's Appeal, 34 Pa. 
 St. 29. See Jenkins v. Einstein, 3 Hiss. 
 (U. S.) 128. , 
 
 The agent is required not only to state 
 to the principal that he has an interest in 
 the pjirchase, but must disclose all facts 
 concerning it; and under such circum- 
 stances the burden of proof for perfect 
 fairness is upon the agent, and in the 
 absence of such proof courts of equity 
 will treat the case as one of constructive 
 fraud. Brock v. Barnes, 40 Barb. (N. 
 
 Y.) 521; Brown v. Post, i Hun (N. Y.), 
 304; Nesbitt V. Lockman, 34 N. Y. 167; 
 Holdridge v. Gillespie, 2 Johns. Ch. (N. 
 Y.) 30; Reed v. Warner, 5 Paige (N. Y.), 
 650; Lawrence v. Maxwell, 6 Lans. (N. 
 Y.) 469; Taussig v. Hart, 49 N. Y. 301; 
 Conditt V. Blackwell, 22 N. J. Eq. 481; 
 Cook V. Berlin Woolen Mill Co., 43 Wis. 
 433; Collins V. Case, 23 Wis. 230; Stew- 
 art V. Mather, 32 Wis. 344; Ingle v. 
 Hartman, 37 Iowa, 274; Persch v. Quig- 
 gle, 57 Pa. St. 247; Beeson v. Beeson, 
 9 Pa. St. 279; Bartholomew v. Leach, 7 
 Watts (Pa.), 472; Uhlich v. Muhlke, 61 
 111. 499; Rubidoux V. Parks, 48 Cal. 215; 
 Mott V. Harrington, 12 Vt. 199; Smith v. 
 Townsend, 109 Mass. 500; Mills v. Mills, 
 26 Conn. 213; Armstrong v. Elliott, 29 
 Mich. 485; Lafferty v. Jelly, 22 Ind. 471; 
 Ackenburgh v. McCool, 36 Ind. 473; 
 Leake v. Sutherland, 25 Ark. 219; White 
 V. Ward, 26 Ark. 445 ; Grumley v. Webb. 
 44 Mo. 444; Gaines v. Allen, 58 Mo. 537;, 
 Provost V. Gratz, 6 Wheat. (U. S.) 481; 
 Baker w. Whiting, 3 Sumner (U. S.), 475;, 
 Comstock V. Ames, i Abb. App. Dec. 
 (N. Y.) 411; Dunne v. English, L. R. 
 18 Eq. 524. 
 
 Where one, while occupying the rela- 
 tion of general confidential business agent 
 of another, is requested by the latter to- 
 find a purchaser at a fixed price for cer- 
 tain land, but being unable to do so 
 proposes to buy the property himself at 
 that price, at the sime time communicat- 
 ing to his principal all the facts within 
 his knowledge about the land and its 
 value, misrepresenting or concealing 
 nothing, and a sale is accordingly made 
 to him, the price paid being at the tiine a 
 fair one, such sale is valid. Rochester 'u. 
 Levering, 104 Ind. 562. 
 
 And where he buys himself with knowl- 
 edge of the principal, and it appeared that 
 the price paid was grossly inadequate, it 
 was held that a court of equity will con- 
 clusively presume undue influence and 
 imposition, and will set aside the sale. 
 Ferguson v. Dent, 24 Fed. R. 412. 
 
 A principal cannot acquiesce in the 
 purchase of his property by his agent 
 until he knows that such purchase has 
 been made, and the onus of showing it is 
 upon the agent. Fountain Coal Co. v. 
 Phelps, 95 Ind. 271. 
 
 But if A and B own a mine and author- 
 ize C to sell it for them, or bring them a 
 purchaser at a fixed price, with the un- 
 derstanding that C is to have all he can 
 get above that price, C may make the 
 best bargain he can with any oiie; he 
 
 377 
 
Duties of Agents. 
 
 A GENC y. Agent may not Buy for himself. 
 
 Agent to Buy may not Buy for himself.— An agent with power 
 to buy may not purchase for himself. A purchase by an agent in 
 his own name, in matters within the purposes of his agency, 
 creates a constructive trust for the principal. Such a trust is not 
 within the statute of frauds, but may be proven by parol. ^ 
 
 may purchase it himself, and is under no 
 obligation to disclose to A and B any- 
 thing that he may have discovered con- 
 cerning the mine after such arrangement 
 is made. Synnott v. Shaughnessey, 7 
 Pac. Repr. (Idaho) 82. 
 
 A gift from a principal to an agent is 
 subject to the same principle. The agent 
 will be held to prove that his principal 
 acted with full knowledge of facts and 
 due deliberation, and under the advice of 
 others than that of the grantee. tJhlich 
 V. Muhlke, 61 111. 499; Neilson v. Bow- 
 man, 2g Gratt. (Va.) 732; Rubidoux v. 
 Parks, 48 Cal. 215. 
 
 1. McMurry ■u. Mobley, 39 Ark. 309; 
 Wellford v. Chancellor, 5 Gratt. (Va.) 39; 
 Reed v. Warner, 5 Paige (N. Y.), 650; 
 Church w. Sterling, 16 Conn. 388; Mat- 
 thews V. Light, 32 Me. 305; Firestone v. 
 Firestone, 49 Ala. 128; Switzer v. Skiles, 
 8 111. 529; s. c, 44 Am. Dec. 723; Von 
 Hurler v. Spengeman, 17 N. J. Eq. 185; 
 Wolford V. Herrington, 74 Pa. St. 311; 
 Eshleman v. Lewis, 49 Pa. St. 410; Rose 
 V. Hayden, 35 Kans. 106; Fisher v. 
 Krutz, 9 Kans. 501; Ringo v. Binns, 10 
 Pet. (U. S.) 269; Barziza v. Story, 39 
 Tex. 354. 
 
 Where an agent, under the instructions 
 of his principal, purchases property in 
 his own name, the principal is entitled to 
 all the profit arising from the transaction. 
 Nat. Bank v. Seward, 106 Ind 264. 
 
 Where one acting as agent of the owner 
 purchases a tax certificate for land sold at 
 tax sale, and afterward receives the tax 
 deed in his own name, he will be held a 
 trustee for the owner and compelled to 
 account for net rents and profits received, 
 and the deed will be cancelled on pay- 
 ment of his outlay. Collins v. Rainey, 
 42 Ark. 531; Continental L. Ins. Co. v. 
 Perry, 65 Iowa, 709; Woodman v. Davis, 
 32 Kans. 344. 
 
 A party charged with the payment of 
 the taxes on land, as agent, cannot ac- 
 quire a tax title to his principal's land, 
 either by purchasing the land himself at 
 tax sale, or by the assignment to him of 
 a certificate of purchase obtained by 
 another; ' nor can he, by assigning his 
 certificates, confer upon his assignee any 
 greater rights than he himself has. Ells- 
 worth V. Cordrey, 63 Iowa, 675; Bowman 
 V. Officer, 53 Iowa, 640; Franks v. Mor- 
 ris, 9 W. Va. 664; Barton v. Moss, 32 
 
 111. 50; Matthews v. Light, 32 Me. 305; 
 Huzzard v. Trego, 35 Pa. St. 9; Bartho- 
 lomew V. Leech, 7 Watts (Pa.), 472; 
 Curts V. Cisnna, 7 Biss. (U. S.) 260. 
 
 When an attorney at law buys in a 
 title outstanding or adverse to land as to 
 which he has been consulted or employed, 
 he buys for his client, if the client elect 
 to take it. Smith v. Brotherline, 62 Pa. 
 St. 461. 
 
 Authority to an agent to purchase a 
 certain mare for his principal at limited 
 price will not justify tfie agent in sending 
 a third person to buy It, and then buying 
 it of him at an advance, though within the 
 prescribed, limit. Armstrong v. Elliott, 
 29 Mich. 485. 
 
 But he must be actually employed to 
 buy. Ascertaining the amount of taxes 
 due upon a certain piece of land by 
 request of the owner does not make one 
 an agent so as to charge him with fraud in 
 buying the same for himself for less than 
 half value. Collar Ji. Ford, 45 Iowa, 33,1. 
 
 A, for a sum of money to be paid him 
 by B, agi-eed to assist in finding a person 
 who would advance money to enable B 
 to buy land which he had formerly owned, 
 but which had passed into the liands of 
 the mortgagee by the foreclosure of a. 
 mortgage thereon. B, relying upon 
 A's agreement, abstained to some ex- 
 tent, though not entirely, from trying to 
 get the money elsewhere. A also dis- 
 suaded him from seeking such other 
 assistance, with the secret intent to get 
 the land himself; and bought the land on 
 his own behalf with his own money, and 
 took a conveyance of it to himself. Held, 
 that these facts did not disclose enough 
 to make A a trustee for B, on the 
 grounds either of agency or of fra,ud. 
 Collins V. Sullivan, 135 Mass. 461. 
 
 Where a man employs an agent by 
 parol to buy land, and the agent buys it , 
 for himself and denies the trust, and no 
 part of the purchase-money is paid by the 
 principal, and there is no written agree- 
 ment, he cannot compel the agent to 
 convey the land to him. Kendall v. 
 Mann, 11 Allen (Mass.), 15; Da.vis v. 
 Wetherell, 11 Allen (Mass.), ig; -Barnard 
 V. Jewett, 97 Mass. 87; Fickett v. Dur- 
 ham, log Mass. 419; Parsons v. Phelan, 
 134 Mass. 109; Collins v. Sullivan, 135 
 Mass. 461. Cotiipare McMurry v. Mobley, 
 39 Ark. 3og. 
 
 378 
 
Duties of Agents. 
 
 A GENC Y. AH Profits belong to Principal, 
 
 All Profits belong to Principal. — All the profits an agent may 
 make out of the subject-matter of the agency belong to the 
 principal. So where he invests property of the principal in his 
 ■own name.i 
 
 An agent td buy or sell may make no profits out of the pur- 
 chases or sales.** 
 
 1. Nat. Bank v. Seward, io6 Ind. 264; 
 Laflferty v. Jelly, 22 Ind. 471; Ack- 
 cnburgh V. McCool, 36 Ind. 473; Love 
 •V. Hoss, 62 Ind. 255; Button v. Willner, 
 52 N. Y. 312; Wilson I,. Wilson, 4 Abb. 
 App. Dec. (N. Y.) 621; Bain v. Brown, 
 56 N. Y. 285; Porter v. Woodruff, 36 N. 
 J. Eq. 174; Dodd V. Wakeman, 26 N. J. 
 Eq., 484; Oliver v. Piatt, 3 How. (U. S.) 
 333; Jeffries w. Wiester, 2 Sawy. (U. S.) 
 135; Stoner v. Weiser, 24 Iowa, 434; 
 Smith V. Stephenson, 45 Iowa, 645; Bell 
 V. Bell, 3 W. Va. 183; Moore v. Mandle- 
 baum, 8 Mich. 433; Segar v. Edwards, 11 
 Leigh. (Va.) 213; Kerfoot u. Hyman, 
 52 111. 512; Barton v. Moss, 32 111. 50; 
 Mason v. Bauman, 62 111. 76; Byrd v. 
 Hughes, 84 111. 174; Ely v. Hahford, 65 
 111. 267; Judevine v. Hardwick, 49 Vt. 
 180; Campbell v. Pertna. Life Ins. Co., 
 2 Whart. (Pa.) 53; Bartholomew v. Leach, 
 7 Watts (Pa.), 472; Norris' Appeal, 71 Pa. 
 St. 106; Coursin's Appeal, 79 Pa St. 220; 
 Leake v. Sutherland, 25 Ark, 219; Rhea 
 •V. Puryear, 26 Ark. 344; White v. Ward, 
 •2,(> Ark. 445; Greenfield Savings Bank 
 V. Simons, 133 Mass. 415; Whelan v. Mc- 
 Creary, 64 Ala. 319; Clark v. Anderson, 
 10 Bush (Ky.), 99; Krutz v. Fisher, 8 
 Kans. go; Moinett v. Day, 57 Tenn. 431; 
 Kent V. Priest, 86 Mo. 476; Northern 
 Pac. R, Co. T). Kindred, 14 Fed. Repr. 77. 
 
 An agent cannot exact from his prin- 
 cipal any advantage growing out of a 
 contract made by the agent in his princi- 
 pal's name, unless the principal has 
 expressly authorized or ratified it, with 
 knowledge that such advantage would 
 •accrue. Vreeland v. Van Blarcom, 35 
 N. J. Eq. 530. 
 
 Even though the agent may have con- 
 tributed his own funds and responsibility 
 in producing the result, and the principal 
 had run no risk. Dutton v. Willner, 52 
 N. Y. 312. 
 
 Where an agent, who in the course of 
 his dealings with his prmcipal had fre- 
 quently made advances to him, took up 
 some outstanding notes of his principal. 
 It was held that he was not entitled to the 
 benefit of a mortgage securing these and 
 other notes, because these notes must be 
 ■considered as having been paid at matu- 
 T\ty by the maker, Turnbull v. Thomas, 
 -I Hugh (U. S ), 172. 
 
 Where an agent, in violation of his 
 trust, uses the money of his principal in 
 the purchase of property, the law implies 
 a trust in favor of the principal, and 
 equity will subject such property to the 
 latter's claim as against either a volun- 
 teer or a fraudulent grantee. Riehl v. 
 Evansville F. Assoc, 104 Ind. 70. 
 
 Where a trustee speculates with trust 
 funds, the profits will belong to the cestui 
 que trust. Norris' Appeal, 71 Pa. St. 
 io5; Bond v. Lockwood, 33 111. 212; 
 Bank of America v. Pollock, 4 Edw. Ch. 
 N. Y. 215; Pugh V. Pugh, 9 Ind. 132; 
 Newton w. Porter, 69 N. Y. 133; s. c, 25 
 Am. R. 152; Bent v. Priest, 86 Mo. 476; 
 Taylor v. Plumer, 3 M. & S. 562. See 
 also Trustees. 
 
 2. Ely V. Hanford, 65 111. 267; Cottom v. 
 Holliday 59 111. 176; Mason v. Bauman, 
 62 III. 76; Collins V. Case. 23 Wis. 230. 
 
 As by selling for a higher price than he 
 accounts for to the principal Schoell- 
 kopf V. Leonard, 6 Pac. Repr. (Colo.) 209. 
 
 Where a broker sold stock for his prin- 
 cipal and remitted a smaller amount than 
 he had actually received for it, although 
 the principal, under the impression that 
 the smaller amount was the highest mar- 
 ket price, had consented to sell for that 
 amount, it was held that he could recover 
 from the broker the price actually re- 
 ceived by him. Cutter v. Demmon, in 
 Mass. 474. 
 
 An owner of real estate appointed an 
 agent to sell it at not less than a certain 
 price, agreeing that if during a certain 
 period the agent would furnish a buyer at 
 such price,, he should be paid by said 
 owner a certain per cent commission on 
 the amount for which the property should 
 be sold. The agent sold for a better 
 price. In a suit by the principal against 
 the agent to recover a portion of the 
 price retained by the agent in addition to 
 such commission, held, that if said agent, 
 acting under such appointment, received 
 a more advantageous offer than he was 
 so authorized to accept, it was his duty 
 to communicate the offer so received to 
 his principal, and not to purposely con- 
 ceal it from him; and that if, so acting as 
 agent, he effected a better trade than he 
 was so authorized to make, said owner 
 was entitled to the benefit of the trade. 
 
 379 
 
Duties of Agents. 
 
 AGENCY. 
 
 Cannot Act for Both Parties.. 
 
 Cannot Act for Both Parties.— Kvi agent cannot make a valid 
 contract where in the same transaction he acts as agent for bot)ii 
 parties.^ 
 
 and was bound to the agent only for his 
 commission, and not for any surplus of 
 the price received above the amount 
 Vfhich the agent was so authorized to 
 accept. Blanchard v. Jones, loi Ind. 
 542; Kerfoot v. Hyman. 52 111. 512; Mer- 
 ryman v. David, 31 111. 404; Bain v. 
 Brown, 56 N. Y. 285. 
 
 Where an agent who has purchased 
 property for his principal, as authorized, 
 defrauds the latter by representing that 
 he paid a greater price than he in fact 
 did pay, this does not entitle the principal 
 to surrender the property to the agent 
 and recover of him the whole purchase- 
 price; he can simply recover the damages 
 sustained by reason of the fraud. So also 
 where an agent, in violation of his duty, 
 knowingly pays a greater price than the 
 property could have been purchased for, 
 he is liable only for the enhanced price 
 so paid, or, in case he received from the 
 vendor a compensation for effecting the 
 sale, for the amount so received. Mc- 
 Millan V. Arthur, 98 N. Y. 167. 
 
 But where a principal employs an 
 agent to buy certain property, promising 
 to give him a specified price for it, no 
 matter what the agent pays for it, the 
 agent is entitled to the profits when he 
 buys for less. Anderson v. Weiser, 24 
 Iowa, 428. ^ 
 
 1. New York Cent. Ins. Co. v. Nat. 
 Prot. Ins. Co. 20 Barb. (N. Y.) 468; 
 Watkiris v. Cousall, i E. D. Smith (N. 
 Y.), 65; Price v. Keyes, 62 N. Y. 378; 
 Pugsley V. Murray, 4 E. D. Smith (N. 
 Y.). 245; Levy v. Loeb, 85 N. Y. 365; 
 Bennett v. Kidder, 5 Daly (N. Y.), 512; 
 Raisin v. Clark, 41 Md. 158; s. c. 20 
 Am. Rep. 66; Hinckley v. Arey, 27 Me. 
 362; Meyer v. Hanchett, 39 Wis. 419; 
 s. c, 43 Wis. 246; Walworth v. Farmers' 
 Co., 16 Wis. 629; Ballston Spa Bank v. 
 Marine Bank, 16 Wis. 120; Everhart v. 
 Searle, 71 Pa. St. 256; Lloyd v. Colston, 
 5 Bush (Ky.), 587; Farnsworth v. Heim- 
 mer, 1 Allen (Mass.), 494; s. c, 79 Am. 
 Dec. 756; Walker v. Osgood, 98 Mass. 
 348; Rice V. Wood, 113 Mass. 133; 
 Lynch zf. Fallon, 11 R. I. 311; Summer 
 V. Charlotte, etc., R. Co., 78 N. Car. 289; 
 Mercantile Ins. Co. v. Hope Ins. Co., 
 8 Mo. App. 408. 
 
 He cannot act for himself and for his 
 principal in the same transaction, as by 
 signing as agent a receipt for money due 
 his principal individually. Neuendorff 
 V. World, etc., L. I. Co., 69 N. Y. 389. 
 
 Such a contract will not be absolutely 
 void, but voidable. Greenwood v. Spring, 
 54 Barb. (N. Y.) 375. 
 
 And it will not be a defence for the 
 agent in an action by one of the parties 
 that he also was agent for the other 
 party. Cottom v. Holliday, 59 111. 176. 
 
 An agreement between the agent of 
 one party and another party, desiring to 
 enter into a contract with the first party, 
 to pay the- agent a commission if he in- 
 duces his principal to enter into the con- 
 tract is void, although the agent acted. 
 fairly toward his principal. Bollman v. 
 Loomis, 41 Conn. 581; Atlee v. Fink, 75, 
 Mo. too; Byrd v. Hughes, 84 111. 174; 
 Holcomb V. Weaver, 136 Mass. 265. 
 
 Purchasers obtaining a contract for 
 the sale of land through a real-estate- 
 broker who with their knowledge and in. 
 collusion with them has concealed ma-, 
 terial facts from his principal, or exerted 
 his skill in the negotiation against his. 
 principal, cannot in equity enforce the- 
 contract ; and such contract will be set 
 aside. Young v. Hughes, 32 N. J. Eq. 
 372. 
 
 And in cases of doubt the courts wilL 
 always assume that only one principal is 
 responsible for the acts of the agent, So- 
 where an express company receives goods; 
 directed to the express care of its agent 
 at a specified place, it will be assumed, 
 that the shipper intended to make such 
 agent his own agent for receiving the 
 goods; and the express company is dis- 
 charged from responsibility in/ delivering, 
 the goods to such agent. Fitzsimmons. 
 V. Southern Expr. Co., 40 Ga. 330; s. c, 
 2 Am. Rep. 577. 
 
 A priest had some money to loan. A 
 owned some property mortgaged for 
 $'2700. Wishing to borrow some more, 
 he applied to a banker, who negotiated a 
 loan from the priest of I3500, with which 
 the existing mortgages should be paid off, 
 and which should be secured by a , first 
 mortgage. All the mortgages were paid 
 off Except one for I556 when the banker 
 failed. Held, that the loss fell on A, the- 
 banker being A's agent, not the priest's.. 
 Engleman v. Reuse, 28 N. Western Repr. 
 (Mich.) 149. 
 
 When the act of the agent is merely to 
 bring the parties together and he takes no 
 part in the negotiations, he may accept a. 
 commission of both. Rupp v. Sampson, 
 16 Gray (Mass.), 398; Siegel v. Gould, 7 
 Lans. (N. Y.) 177; Mullen v. Keetzleb. 7. 
 
 380 
 
Duties of Agents. 
 
 AGENCY. 
 
 Consent of Both Fartleff. 
 
 Coment of Both Parties. — But where each of the principals con- 
 sents or has notice that the agent acts in a dual capacity, the dis- 
 ability will be waived.* 
 
 Bush (Ky.), 253; Collins v. Fowler, 8 
 Mo. App. 588; Orton v. Scoiield,6i Wis. 
 382; Barry v. Schmidt, 57 Wis. 172; 
 Meyer v. Hanchett, 39 Wis. 419; s. c, 
 43 Wis. 246. 
 
 The maxim that "no man shall serve 
 two masters" does not prevent the same 
 person from acting as agent, for certain 
 purposes, of two or more parties to the 
 same transaction when their interests do 
 not conflict, and where loyalty to the 
 one is not a breach of duty to the other. 
 Nolle V. Hulbert, 37 Ohio St. 445. 
 
 An agent merely for the care and cus- 
 tody of property may act as agent for an 
 insurance company in issuing a policy of 
 insurance on the property. The two 
 capacities are not necessarily incon- 
 sistent. Northrop v. German F. Ins. 
 Co., 48 Wis. 420; s. c, 33 Am. Rep. 815. 
 
 Where a contract between a coal com- 
 pany and a railroad company provided 
 that the latter should transfer the coal 
 of the former and deliver it on board 
 boats according to orders given by the 
 coal company to persons for whom the 
 coal was intended, but which orders were 
 directed to the agent of the railroad, 
 held, that such agent was not the agent 
 of the coal company so as to bind the 
 latter by his acts and declarations in the 
 delivery of the coal. Kelly v. Lehigh 
 Valley Coal Co., 8 Daly (N. Y.), 291. 
 
 Where parties sign an application for 
 a loan, agreeing to pay all expenses, the 
 person employed to negotiate the loan is 
 the agent of the borrower, and notice to 
 him of defects in the title is not notice to 
 the lender. Thomas v. Desney, 57 Iowa, 
 58. 
 
 Where a note is made payable at a 
 bank and the money deposited to pay it 
 this does not make the bank the agent 
 of the payee so as to make the bank 
 liable to pay when the maker for any 
 reason refuses to allow the officers to 
 pay it over. Pease v. Warren, 29 Mich. 
 
 9- 
 
 But where the debtor has deposited a 
 sum of money in a bank in payment of 
 notes held by the bank for collection and 
 the bank misappropriated the money, the 
 bank was held to be the creditor's agent, 
 and not the debtor's. Worley v. Moore, 
 77 Ind. 567. 
 
 1. Pugsley V Murray, 4 E. D. Smith 
 (N. Y.), 245; Rowe V. Stevens, 53 N. Y. 
 621; Joslin V. Cowee, 52 N. Y. 90; Bell 
 V. McConnell, 37 Ohio St. 396; Capiner 
 
 V. Hogan, 40 Ohio St. 203; Rolling 
 Stock Co. V. Railroad, 34 Ohio St. 450; 
 Alexander v. Northwestern, etc., Uni- 
 versity, 57 Ind. 466; Barry v. Schmidt, 
 57 Wis. 1 72 ; ,s. c. , 46 Am. Rep. 35 ; Meyer 
 V. Hanchett, 39 Wis. 419; s. c, 43 Am, 
 Rep. 246; Stewart v. Mather, 32 Wis. 
 344; Colwell V. Keystone Iron Co., 36 
 Mich. 51; Adams M. Co. v. Senter, 26 
 Mich. 73; Helmer v. Krolick, 36 Mich. 
 371; Fitzsimmons v. Southern Ex. 
 Co., 40 Ga. 330; White v. Ward, 26 Ark. 
 445; Smith V. Townsend, 109 Mass. 500; 
 
 A person who voluntarily employs the 
 agent of another knowing the fact of such 
 existing agency is estopped from pleading 
 the rule that the same person cannot be 
 the agent of two principals having con- 
 flicting interests. Fitzsimmons v. South- 
 ern Ex. Co., 40 Ga. 330; s. c, 2 Am. 
 Rep. 577. 
 
 If a principal, in authorizing an agent 
 to make a purchase, also ' authorizes him 
 to contract with the seller for a commis- 
 sion sufficient to pay him for his services, 
 and the seller, knowing his relation to 
 the purchaser, contracts to pay him a 
 commission, he cannot afterwards avoid 
 paying it on the ground that the contract 
 was void, as being in violation of the 
 good faith which an agent owes his prin- 
 cipal. Leekins v. The Nordyke, etc., 
 M. Co., 66 Iowa, 471. 
 
 When a professional land agent acts 
 as agent for both the seller and the buyer, 
 and that is known to them, the law exacts 
 the most perfect good faith, honesty, and 
 fairness on his part, and will not adjudge 
 the specific performance of a contract 
 thus made unless it has been entered into 
 with perfect fairness and without misap- 
 prehension or misrepresentation. Mor- 
 gan V. Hardy, 16 Neb. 427. 
 
 Where the general 'business agent of 
 another is also the agent of an insur- 
 ance company, and in the latter capacity 
 writes insurance upon the property of his 
 principal, but with such knowledge on 
 the part of the company as would make 
 the policies valid, or at most merely 
 voidable, he is entitled to be reimbursed 
 for the premiums paid by him. Roches- 
 ter V. Levering, 104 Ind. 562. 
 
 An auctioneer is considered the agent 
 of both parties, so as to bind either the 
 buyer or seller by his memorandum. 
 Johnson v. Buck, 35 N. J. L. 338; Mor- 
 ton V. Dean, 13 Mete. (IWass ) 385; Pike 
 V. Balch, 38 Me. 302; s. c, 61 Am. Dec. 
 
 381 
 
Duties of Agents. 
 
 AGENCY. 
 
 After Termination of Agency, 
 
 After Termination of Agency. — The rule that an agent can- 
 not buy hislprincipal's property does not apply where the agent 
 acquires an interest in the property, after the termination of his 
 agency, by subsequent contract with the purchaser at his sale. 
 But when an agent is found, recently after his sale, to have ac- 
 quired a beneficial interest in the property under the purchaser, a 
 strong presumption of indirection and attempted evasion arises, 
 which he is required to remove by good and convincing evidence.^ 
 
 To Render Full Accounts of Receipts and Disbursements. — An 
 agent is bound to account to his principal for money received by 
 him in the course of his agency for goods sold by his principal on 
 orders obtained by him as such agent on commission, although 
 such sales as between the principal and purchaser be illegal and 
 void.''* 
 
 248; O'Donnell v. Leeman, 43 Me. 158; 
 s. c, 69 Am. Dec. 54; McComb v. 
 Wright, 4 Johns Ch. (N. Y.) 659; 
 Pugh V. Chisseldine, 11 Ohio, 109; s.c., 
 37 Am. Dec. 414. 
 
 And he may lawfully enter « bid for 
 the property he is selling in behalf of 
 a third party. Scott v. Mann, 36 Tex. 
 157. See also Auctions and Auction- 
 eers. 
 
 A broker for the purpose of signing 
 the memoranda of the sale is the agent 
 of both parties to the contract which he 
 makes; but in other respects he is only 
 the agent of the party originally employ- 
 ing him. Schlesinger v. Texas, etc., R. 
 Co., 87 Mo. 146. 
 
 Where a travelling agent sells a bill of 
 goods to a customer and ordered the 
 goods from his principal by letter he was 
 held not to be the agent of the customer 
 so as to comply with the requirements of 
 the statute of frauds. Strong v. Dodds, 
 47 Vt. 348. 
 
 1. McGar v. Adams, 65 Ala. 106; 
 Fountain Coal Co. v. Phelps, 95 Ind. 
 271; Bucher v. Bucher, 86 111. 377; 
 Walker v. Carrington, 74 111. 446; Wal- 
 ker V. Derby, 5 Biss. (U. S.) 134; First 
 Bank v. Bissell, 2 McCrary (U. S.), 73. 
 
 A mere formal surrender of the agency 
 is not sufficient to give the agent a right to 
 purchase. Fountain Coal Co. v. Phelps, 
 95 Ind. 271. 
 
 In Bartholomew v. Leech, 7 Watts, 
 472, it is said: "The most open, ingenu- 
 ous, and disinterested dealing is required 
 of a confidential agent while he consents to 
 act as such ; and thei'e must be an unam- 
 biguous relinquishment of his agency be- 
 fore he can acquire a personal interest in 
 the subject of it. To leave a doubt of 
 his position in this respect is to turn him- 
 self into a trustee. It is unnecessary to 
 recur to authority for a principle so fa- 
 
 miliar or* so accordant with common hon- 
 esty." Bowman v. Officer, 53 Iowa, 640. 
 
 The owner employed an agent to sell 
 a tract of land, agreeing that if he would 
 find a purchaser at a fixed price to pay 
 hirh $500.- The agent found a pur- 
 chaser. Held, that as soon as the agent 
 procured the purchaser his agency ceased, 
 and his taking a retainer from the pur- 
 chaser to see that the papers were prop- 
 erly prepared and executed presented no 
 ground for defeating a recovery of the 
 price agreed to be paid to him. Short v. 
 Millard, 68 111. 292. 
 
 2. Baldwin v. Potter, 46 Vt. 402; 
 Greentree u. Rosenstock, 61 N. Y. 583; 
 Coit V. Stewart, 50 N. Y. 17: Whelan v. 
 Lynch, 60 N. Y. 469; TerwiUiger v. 
 Beals, 6 Lans. (N. Y.) 403; Jackson v. 
 Baker, 6 Cow. (N. Y.) 183, note a; Cole- 
 man V. Pearce, 26 Minn. 123; ^Taul v. 
 Edmondson, 37 Tex. 556; Monitor Mut. 
 F. Ins. Co. V. Young, in Mass. 537; 
 Heddens v. Younglove, 46 Ind. 212; 
 Eaton V. Welton, 32 N. H. 352; Hem- 
 enway v. Hemenway, 5 Pick. (Mass.) 
 389; McVeigh v. Bank, 26 Gratt. (Va) 
 188. 
 
 Where one receives money as the agent 
 of another, the burden is on him, in an 
 action to account therefor, to show that 
 he repaid it to his principal, or otherwise 
 disposed of it by the latter's direction. 
 Young!'. Powell, 87 Mo. 128. 
 
 Neither an agent nor a partner has 
 any implied power to apply partnership 
 moneys on private debts; and one who 
 deals with an agent cannot, without the 
 principal's authority or acquiescence, ap- 
 ply money due to the principal upon a 
 private account with the agent. Chase 
 V. Buhl Iron Works. 55 Mich. 139; 
 Greenwood v. Burns, 50 Mo. 52. 
 
 A power to act for another, however 
 general its terms or wide its scope, can- 
 
 383 
 
Duties of Agents. 
 
 AGENCY. 
 
 Accounts, 
 
 Must Keep Regular Accounts. — And it is his duty to keep regu- 
 lar, accounts of all his transactions, with suitable vouchers.^ 
 
 Demand. — As a rule, a demand by the principal is neccessary 
 before he can bring suit against the agent for an accounting.* 
 
 not be enlarged into a power to pervert 
 funds coming into the agent's hands, 
 without clear approval or ratification by 
 the principal. Williams v. Whiting, g2 
 N. Car. 683. 
 
 Where a person is employed as an 
 agent in the conduct of the financial part 
 of the business of his principal, the rela- 
 tion is a fiduciary one in its character; 
 and if the agent appropriates the proper- 
 ty of his principal to his own use, or 
 makes any profit to himself by virtue of 
 his position, he must account therefor as 
 for a trust. Upon bill in chancery by a 
 principal against his agent to compel an 
 accounting by the latter in respect of the 
 business of his employment, and a sur- 
 render of property in his hands, it ap- 
 peared there was an agreement whereby 
 the defendant was to act as manager of 
 the office part of the complainant's busi- 
 ness (milling), except the running of the 
 mill; to purchase grain, ship the product, 
 ■make sale thereof, and do the banking 
 and financial business, — all in defen- 
 dant's name, but in fact taking no in- 
 terest therein; to account therefor to the 
 complainant, and upon a discontinuance 
 of the employment to turn over and sur- 
 render to the principal all the money 
 and other property, of every kind and 
 nature, in his possession or under his 
 control, belonging to the principal. It 
 was held, this arrangement created a, 
 trust in the money and property of the 
 principal or employer, of which the de- 
 fendant became possessed under and by 
 virtue of his employment. Weaver v. 
 Fisher, no 111. 146. 
 
 L. leased a number of machines, using 
 {though not compelled to do so) a form 
 of lease furnished by the plaintiff which 
 provided that the machines should re- 
 main the property of the plaintiff until 
 fully paid for by the lessee, and that all 
 payments thereon should be made at the 
 plaintiff's office in Milwaukee. After so 
 leasing each machine, L. gave his notes 
 therefor as provided by the contract. 
 Upon ceasing to do business under the 
 contract he delivered all leases then held 
 by him to the plaintiff. Subsequently 
 the plaintiff returned a part of such 
 leases to him, requesting him to make 
 collections thereon, which he was unable 
 to do. Afterwards he offered to rede- 
 liver said leases to the plaintiff upon can- 
 cellation of his notes, but the plaintiff re- 
 
 fused such offer. Held, that L. re- 
 mained liable under the contract and on 
 his notes for the leased machines, except 
 so far as the plaintiff accepted any of the 
 leases in discharge of the notes, and ex- 
 cept that all collections made by the 
 plaintiff on the leases would be available 
 to L. by way of recoupment on the 
 notes. Wheeler & W. Mfg. Co. v. Laus, 
 62 Wis. 635. 
 
 A principal furnished his agent with a 
 certificate of membership of a board of 
 trade to enable him to conduct the prin- 
 cipal's business advantageously. The 
 agent on the dissolution of the agency 
 refused to transfer the certificate to his 
 principal. Held, that equity would com- 
 pel him to assign the certificate in blank 
 and deliver the same to the principal. 
 Weaver v. Fisher, no 111. 146. See 
 Western R. Co. v. Bayne, 75 N. Y. i. 
 
 1. Zetelle v. Myers, ig Gr^t. (Va.) 62; 
 Kerfoot v. Hyman, 52 111. 512; Chinn v. 
 Chinn, 22 La. Ann. 599; Riley v. State, 
 32 Tex. 763; Peterson v. Poignard, 8 B. 
 Mon. (Ky.) 309; Keighler v. Savage 
 Mfg. Co., 12 Md. 383; S.C., 71 Am. Dec. 
 600; I Story on Eq. Jur. 468. 
 
 He is generally accountable only to 
 his principal directly, i Pars, on Contr. 
 89; Evans on Agency (Ewell's Ed.), 
 248; Lake Erie R. Co. v. Eckler, 13 Ind. 
 67. 
 
 But in case of the death of the princi- 
 pal, to the administrator. Simmons v. 
 Simmons, 33 Gratt. (Va^45i. 
 
 And in case of joint principals the de- 
 mand for an accounting must be made 
 by them jointly; no one of them -has a 
 right to compel the agent to render a 
 separate account to himself. Louisiana 
 Trustees, etc., v. Dupuy. 31 La. Ann. 305. 
 
 2. Bedell v. Janney, 4 Gilm. (111.) 193; 
 Armstrong v. Smith, 3 Blackf. (Ind.) 251; 
 Hamilton v. Elkins, 46 Ind. 212; Hed- 
 dens V. Younglove, 46 Ind. 212; Jett v. 
 Hempstead, 25 Ark. 462; Whitehead v. 
 Wells, 29 Ark. 462; Haas v. Damon, g 
 Iowa, 589; Alexander v. Jones, 64 Iowa, 
 207; Cooley V. Betts, 24 Wend. (N. Y.) 
 203; Taylor v. Bates, 5 Cow. (N. Y.) 
 376; Sally V. Capps, i Ala. (N. S.) 121; 
 Potter V. Sturges, I Dev. (N. Car.) 79; 
 Waring v. Richardson, 11 Ired. L. (N. 
 Car.) 77; Hutchins v. Gilman, 9 N. H. 
 359; Hall V. Pecks, 10 Vt. 474; Cockrill 
 V. Kirkpatrick, g Mo. 697. Compare 
 Leake v. Sutherland, 25 Ark. sig. 
 
 383 
 
Duties of Agents. 
 
 AGENCY. 
 
 Interest — Principal's Goods.- 
 
 Interest. — Where the relation between agent and principal is of 
 such a character that the agent will be bound to pay over the 
 principal's money without previous demand, as where after the 
 receipt of the money he fails to inform his principal, or where he 
 uses it for his own profit, he will be liable for interest.^ 
 
 To keep the Goods and Money of the Principal separate from his 
 Own. — In all cases it is the duty of an agent to keep the prop- 
 erty of his principal separate from his own and not to mix it with 
 the latter; and if he does not keep it separate from his own, and. 
 afterwards is unable to distinguish between the one and the other,, 
 the whole will be adjudged to belong to the principal.'-* 
 
 Where an agency is denied or repudi- 
 ated, no demand upon the agent is nec- 
 essary before suit brought. King v. 
 Foscue, gi N. Car, Ii6; Wsddell v. 
 Swann, gi N. Car. io8; TiUotson v. 
 McCrillis, il Vt. 477. 
 
 Or where the agent refuses or neglects 
 to return an account. Haas v. Damon, 
 g Iowa, 58g; Clark v. Moody, 17 Mass. 
 145; Hill V. Hunt, g Gray (Mass.), 66; 
 Wait f . Gibbs, 7 Pick. (Mass.) 146; Har- 
 vey V. Turner, 4 Rawle (Pa.), 223; 
 Brown v. Arrott, I Miles (Pa.), I3g; 
 Witherup v. Hill, g S. & R. (Pa.) 11; 
 Chapman v. Shaw, 5 Greenl. (Me.) 59; 
 Cooley V. Betts, 24 Wend. (N. Y.) 203. 
 
 Nor is -a, demand necessary upon a 
 foreign agent. Eaton v. Welton, 32 N. 
 H. 352- 
 
 If a demand is required by the ap- 
 pointment, the demand must be con- 
 formed to the terms of the appointment. 
 
 Where, by the terms of a written con- 
 tract, one P. constituted T. his agent to 
 loan money and take securities for the 
 payment of the same, and expressly pro- 
 vided that the authority could be re- 
 voked, at the request of P. in writing, 
 held, that a demand for the securities in 
 writing, signed by a party claiming to be 
 an attorney of P. without an order in 
 writing, or proof of his authority, was 
 not sufficient to authorize P. to main- 
 tain an action for the face value of the 
 securities. Tingley v. Parshall, 11 Neb. 
 
 443- 
 
 1. Dodge V. Perkins, 9 Pick. (Mass.) 
 368; Clark w. 'Moody, 17 Mass. 145; An- 
 derson V. State, 2 Kelly (Ga.), 370; Bedell 
 V. Janney, 4 Gilm. (III.) 193; Tuers v. 
 Tuers, 100 N. Y. ig6; Williams v. Storrs, 
 6 Johns. Ch. (N. Y.) 353; s. c, 10 Am. 
 Dec. 340; Reid v. Renselaer Glass Fac- 
 tory, 3 Cow. (N. Y.) 387; 5 Cow. (N. Y.) 
 527; Comegys v. State, 10 Gill. & J. 
 (Md.) 175; Leake v. Sutherland, 25 Ark. 
 219; Clemens v. Caldwell, 7 B. Mon. 
 
 (Ky.)i7i., ^ . „ . 
 
 Where, in order to meet the calls, m 
 
 uncertain amounts, of his principal upon, 
 him, it is necessary that an agent — who, 
 as it is received, mixes his principal's, 
 money with his own and uses it in his- 
 business — shall keep money available, he 
 is not chargeable with the highest obtain- 
 able rate of interest on the sums remain- . 
 ing in his hands, but legal interest only, 
 Rochester v. Levering, 104 Ind. 562. 
 
 Exemplary damages may be allowed 
 where ^ an agent by false and fraudulent 
 representations to his principal obtains 
 possession of his principal's goods and 
 converts them to his own use. Peckham 
 Iron Co. V. Harper, 41 Ohio St. 100. 
 
 The agent is entitled to a set-off for his 
 commissions as well as for advances 
 made or expenses incurred by him in the 
 course of his agency. 2 Chitty on Contr. 
 gi7. 
 
 An agent or attorney who by virtue of 
 a special authority has received money 
 cannot, when sued by his principal, set 
 off a debt due to himself in a matter not 
 arising out of his agency. Tagg v. Bow- 
 man, 108 Pa. St. 273. 
 
 2. Story on Agency, § 205 ; Pinckney v. 
 Dunn, 2 S. Car. 314; Cartmell v. AUard, 
 7 Bush (Ky.), 482; Norris v. Hero, 22 La. 
 Ann. 605; Webster v. Pierce, 35 111. 158; 
 School Dist. V. First Nat. Bank, 102 
 Mass. 174; Greene v. Haskell, ,5 R. I. 
 447; Mass. Life Ins. Co. v. Carpenter, 2 
 Sweeney (N. Y.), 734; Hart v. Ten Eyck, 
 2 Johns. Ch. (N. Y.) 62; De Peyster v: 
 Clarkson, 2 Wend. (N. Y.) 77; Van Alen 
 V. Am. Bank, 52 N. Y. i; Manning w. 
 Manning, i Johns. Ch. (N. Y.) 527; Nat. 
 Bank v. Ins. Co., 104 U. S. 54; Farmers', 
 etc., Bank t/. King, 57 Pa. St. 202; Dy- 
 ott's Est., 2 W. & S. (Pa.) 565; Graver's 
 Est., 50 Pa. St. i8g; Williams v. White, 
 70 Me. 138; Bartlett v. Hamilton, 46 Me. 
 435; Kerr z*. Laird, 27 Miss. 544; Atkin- 
 son V. Ward, 2 South W. Repr. (Ark.) 
 
 77- 
 
 It will belong to the principal until 
 the agent puts the subject-matter under 
 such circumstances that it may be dis- 
 
 384 
 
iSgiiBitares by Agents. 
 
 AGENCY. 
 
 Instruments under SeaL 
 
 8. Signatures by Agents. — Instruments under Seal. — No particu- 
 3ar form of words is necessary for an agent to bind his principal, 
 if he expresses in the instrument the capacity in which he acts. 
 Where this intent appears, the signature may be " A" as agent for 
 « B." 1 
 
 tinguished as satisfactorily as it might 
 have been before the unauthorized mix- 
 ture on his part. Story Eq. Jur. § 463. 
 
 A bank in Chicago received from a 
 ^ewYork bank notes for collection. The 
 Chicago bank collected the amount in 
 •currency, which was then depreciated 
 ten per cent, and used it in its business. 
 When called upon to remit, said cur- 
 rency had depreciated fifty per cent. 
 Held, that the New York bank was en- 
 titled to the value of the currency as col- 
 Jected, and that the Chicago bank had to 
 bear the loss. Marine Bank v. Fulton 
 Bank, 2 Wall. (U. S.) 252. 
 
 And where an agent deposits the prin- 
 ■cipal's money in his own name and to- 
 gether with his own funds, he will be 
 liable for a loss caused by a subsequent 
 failure of the bank. Com. v. M'Alister, 
 -28 Pa. St. 480; Shuford v. Rarasour, 63 
 N. Car. 622; Cartmell v. Allard, 7 Bush 
 (Ky.), 482; Norris J). Hero, 22 La. Ann. 
 ■605. 
 
 Where a factor kept the funds arising 
 froiti his business, as such, separate from 
 his individual funds, by depositing in 
 bank to a separate " brokerage account" 
 the drafts received for goods sold, the fact 
 that these drafts included his commissions 
 on such sales is not a mingling of his own 
 with the trust fund. Richardson v. St. 
 Louis Nat. Bank, 10 Mo. App. 246. 
 
 1. Dean v. Roesler, 1 Hill (N. Y.), 420; 
 Randall v. Van Vechten, 19 Johns. (N. 
 Y.) 60; s. c, 10 Am. Dec. 193; Many v. 
 Beekman Iron Co., 9 Paige (N, Y.), 188; 
 Dubois V. Canal Co., 12 Wend. (N. Y.) 
 334; Stone V. Wood, 7 Cow. (N. Y.)453; 
 s. c, 17 Am. Dec. 529; Townsend v. 
 •Corning, 23 Wend. (N. Y.) 435; Haight 
 V. Sahler, 30 Barb. (N. Y.) 218; Briggs 
 J/. "Partridge, 64 N. Y. 358; s. c. 21 Am. 
 Rep. 617; Chouteau v. Suydam, 21 N. 
 Y. 179; Bogart v. De Bussy, 6 Johns. (N. 
 Y,) 94; Taft v. Brewster, 9 Johns. (N. 
 Y.) 54; Magill V. Hinsdale, 6 Conn. 464; 
 s. c, 16 Am. Dec. 70; Johnson v. Smith, 
 21 Conn. 627; Reed w. Latham. 40 Conn. 
 452; Hovey v. Magill, 2 Conn. 680; But- 
 terfield v. Beall, 3 Ind. 203; Wilburn v. 
 Larkin, 3 Blackf. (Ind.) 55; Hancock v. 
 Yunker, 83 III. 208; Mears v. Morrison, 
 I Breese (111.). 172; Echols v. Cheney, 
 ^8 Cal. 157; Morrison v. Bowman, 29 
 Cal. 337; Grubbs v. Wiley, 17 Miss. 29; 
 
 Einstein v. Holt, 52 Mo, 340; Martin v. 
 Almond, 25 Mo. 313; Stinchfield v. Lit- 
 tle, I Greenl. (Me.) 231 ; s. c, 10 Am. Dec. 
 65; Dyer v. Burnham, 25 Me. 9; Elwell 
 V. Shaw, 16 Mass. 42; Brinley v. Mann, 
 2 Cush. (Mass.) 337; s. c, 48 Am. Dec. 
 66g; Mussey v. Scott, 7 Cush. (Mass.) 
 216; s. c, 54 Am. Dec. 719; Fullam v. 
 West Brookfield, 9 Allen (Mass.), i ; Stack- 
 pole 11. Arnold, 11 Mass. 27; Bradlee v. 
 Boston Glass Mfy., 16 Pick." (Mass.) 
 347; Taber v. Cannon, 8 Mete. (Mass.) 
 456; Bedford Ins. Co. v. Covell, 8 Mete. 
 (Mass.) 442; Brown v. Parker, 7 Allen 
 (Mass.), 337; Hale v. Woods, 10 N. H. 
 470; s. c.,34Am. Dec. 176; Savage z/. Rix, 
 9 N. H. 263; Morse v. Gree|i. 13 N. H. 
 32; s. c, 38 Am. Dec. 471; Hopkins v. 
 Mehaffy, 11 S. & R. (Pa.) 126; Heffer- 
 man u. Addams, 7 Watts (Pa.), 116; De- 
 vmney v. Reynolds, t W. & S. (Pa.)328; 
 Bradstreet v. Baker, 14 R. I. 546; Prov- 
 idence V. Miller. 11 R. I. 272; Webster 
 V. Brown, 2 Rich. L. N. S. (S. Car.) 428; 
 Daniels v. Burnham, 2 La. 243; Materne 
 V. Lion, 35 La. Ann. 988; Key v. Parn. 
 ham, 6 Har. & J. (Md.) 418; Hunter v. 
 Miller, 6 B. Mon. (Ky.) 612. Compare 
 Franklin Ave., etc., Sav. Inst. v. Board 
 of Education, 75 Mo. 408; Washington 
 Mut. F. Ins. Co. V. St. Mary's Seminary, 
 52 Mo. 480. 
 
 The granting clause of a deed, the rec- 
 ord of which was offered in evidence, 
 was as follows: " Know all men by these 
 presents, that the W. K. Land Company, 
 by S. H., president, and T. S. C, secre- 
 tary, has granted," etc. The attestation 
 clause and signatures were as follows: 
 " In witness whereof, we hereunto sub- 
 scribe our names and affix our seals." 
 (Signed) " S. H., president" (scroll); '• T. 
 S. C, secretary" (scroll); " W. K. Land 
 Company" (scroll). The certificate of ac- 
 knowledgment stated that S. H., presi- 
 dent, and T. S. C, secretary, "acknowl- 
 edged that they executed and delivered 
 the same as their voluntary act and deed. " 
 Held, that the deed was the deed of the 
 corporation. The form of signature did 
 not make it the individual deed of S. H. 
 and T. S. C. ; and one of the seals ap- 
 pearing on the record would be presumed 
 to be the seal of the corporation. Kansas 
 City V. Hannibal, etc., R. Co., 77 Mo. 
 1 80. 
 
 386 
 
Signatures hy Agents, 
 
 AGENCY. 
 
 Signed in Name of Principal. 
 
 Signed and Sealed in Na7ne of Principal. — A deed will bind the 
 principal if signed and sealed in his name and on his behalf. The 
 seal must be the seal of the principal, not the seal of the agent, to 
 make the principal liable, whether the principal be a corporation 
 or an individual. Where the agent signs his own name and uses 
 his own seal the principal will not be bound. ^ 
 
 1. Townsend v. Hubbard, 4 Hill (N. 
 ■ Y.), 351 ! Stanton v. Camp, 4 Barb. (N. 
 Y.) 274; Minard v. Mead, 7 Wend. (N.Y.) 
 68; Kiersted v. Orange & A. R. Co., 69 
 N. Y. 343; s. c, 25 Am. Rep. igg; Town- 
 send V. Corning, 23 Wend. (N. Y.) 435; 
 Stone V. Wood, 7 Cow. (N. Y.) 453; 
 Briggs V. Partridge, 64 N. Y. 358; Da- 
 mon V. Granby, 2 Pick. (Mass.) 345; 
 Tippets V. Walker, 4 Mass. 595; Brinley 
 V. Manri, 2 Cush. (Mass.) 337; s. c, 48 
 Am. Dec. 669; Fowler z/. Shearer, 7 
 Mass. 14; Elwell v. Shaw, 16 Mass. 42; 
 Mussey v. Scott, 7 Cnsh. (Mass.) 216; s. 
 c, 54 Am. Dec. 719; Bartlett v. Tucker^ 
 104 Mass. 336; s. c, 6 Am. Rep. 240; 
 Fullam V. West Brookfield, g Allen 
 (Mass.), i; Stinchfield v. Little, i Greenl. 
 (Me.) 231; Savings Bank v. Davis, 8 
 Conn. 191; Reed v. Latham, 40 Conn. 
 452; Shanks v. Lancaster, 5 Gratt. (Va.) 
 no; s. V,., I Am. Dec. 108; Martin v. 
 Flowers, 8 Leigh. (Va.) 15S; McDonald 
 V. Bear River Co., 13 Cal. 220; Meagher 
 V. Thompson, 49 Cal. 189; Echols v. 
 Cheney, 28 Cal. 157; Morrison v. Bow- 
 man, 29 Cal. 337; Carter w. Chandron, 21 
 Ala. 72; Skinner v. Gunn, 9 Port. (Ala.) 
 305; Providences, Miller, 11 R. L 272; 
 s. c, 23 Am. Rep. 453; Martin v. Al- 
 mond, 25 Mo. 313; Einstein v. Holt, 52 
 Mo. 340; McClure v. Herring, 70 Mo. 
 18; s. c, 35 Am. Rep. 404; Hale v. 
 Woods, 10 N. H. 470; s. c.,34Am. Dec. 
 176; Northwestern Distr. Co. v. Brant, 
 6g 111. 658; s. c, 18 Am. Rep. 631; Han- 
 cock V. Yunker, 83 111. 208; Sheldon v. 
 Dunlap, I Harr. (N. J.) 245; Gnibbs v. 
 Wiley, 17 Miss. -29; Webster v. Brown, 2 
 Rich. N. S. (S. Car.) 428; Clark v. Court- 
 ney, 5 Pet. (U. S.) 3ig, 340; Bank of 
 Columbia v. Patterson, 7 Cranch. (U.S.) 
 2gg, 308; Barger v. Miller, 4 Wash. (U. 
 S.) 280; Phil., etc., R Co. v. Howard, 
 13 How. (U. S.) 307, 337. Compare 
 State V. Spartansburgh, etc., R. Co., 
 8 Rich. N. S. (S. Car.) I2g; Beardsley v. 
 Duntley, 6g N. Y. 577. 
 
 A contract by a corporation signed by 
 ths president as president and sealed with 
 a sinlple scroll because there was no 
 corporate seal, held, neither the con- 
 tract of the president individually nor of 
 the corporation, McCauUey v. Jenney, 
 5 Del. 32. 
 
 Where an agent acts for several princi- 
 pals it is not necessary that a separate 
 seal should be attached by each. One 
 seal will be sufficient if it appears to be 
 the seal of all. Townsend v. Hubbard, 
 4 Hill (N. Y.), 351; Harper v. Hampton, 
 I Harr. & J. (Md.) 709. 
 
 A verbal ratification by the principal 
 of a deed executed under the hand and 
 seal of the agent will not make it valid. 
 Smith V. Dickinson, 6 Humph. (Tenn.) 
 261; s. c, 44 Aiti. Dec. 306; Tappan v. 
 Redfield, i Halst. Ch. N. J. 3gg; Rhode 
 V. Louthain, 8 Blackf. (Ind.) 413. 
 
 But where a person whose name has 
 been subscribed to a deed in his absence 
 appears before a magistrate and duly ac- 
 knowledges the execution of the deed, he 
 thereby adopts the signature as his own. 
 Bartlett v. Drake, 100 Mass. 174; s. t., i 
 Am. Rep. loi. 
 
 But see Randall v. Van Vechten, 19 
 Johns. (N. Y.) 60; s. c, 10 Am. Dec. 
 193; Whitford v. Laidler, 94 N. Y. 145; 
 s. c, 46 Am. Rep. 131, where it was 
 held that while the principal was suf- 
 ficiently described in the body of the in- 
 strument and it was executed not under 
 his hand and seal, but under the seal of 
 the agent, covenant would not lie against 
 him, but that an action of assumpsit could 
 be maintained. And Robbins v. Butler, 
 24 111. 387, where it was held that the sig- 
 nature of a deed by an attorney in his own 
 name confers an equitable although not a 
 legal title. Yerby v. Grisby, 9 Leigh. (Va ) 
 387; McNaughten v. Partridge, 11 Ohio, 
 223; s. c, 38 Am. Dec. 731; Van Reins- 
 dyk V. Kane, i Gall. (U. S.)63o; Devinney 
 V. Reynolds, 1 W. & S. (Pa.) 828. 
 
 Public agents acting in their official 
 capacity may sign their own names and 
 bind their principals. Ward v. Bartholo- 
 mew, 6 Pick. (Mass.) 409; Freeman v. 
 Otis, g Mass. 272; s. c, 6 Am. Dec. 66; 
 Thompson v. Carr, 5 N. H. 510; Magill 
 V. Hinsdale, 6 Conn, 464; Stinchfield v. 
 Little, I Greenl. (Me.) 231; Providence 
 V. Miller, 11 R. I. 272; Walker v. Swart- 
 wout, 12 Johns. (N. Y.)444; Hodgson w. 
 Dexter, i Cranch. (U. S.) 345; Sheets v. 
 Seldon, 2 Wall. (U. S.) 177. Compare 
 Simonds v. Heard, 23 Pick. (Mass.) 120; 
 s. c, 34 Am. Dec. 41; Hall z". Cockrell, 
 28 Ala. 507. 
 
Signature by Agents. 
 
 AGENCY. 
 
 Intention, 
 
 Intention Appearing on Face of Instrument. — In some States it 
 has been held that where it appears from the instrument that 
 the agent acted for the principal, the signature- of the agent's 
 name alone, without any expression of his agency, will not make 
 it his instrument, but bind the principal. ^ 
 
 Intention Not Appearing. — If it does not appear from the 
 instrument that it is intended to be the act of the principal, the 
 agent will be personally liable, and the addition to his name of 
 his title of office, or his representative character, will not shield 
 him from liability.'-* 
 
 1. McDonough J/. Templeman. i Harr. 
 & J. (Md.) 156; s. c, 2 Am. Dec. 510; 
 Key V. Parnham, 6 Harr. & J. (Md.) 
 418; Warner v. Mower, 11 Vt. 385; Hop- 
 kins V. Mehaffy, ii S. & R. (Pa.) 126; 
 Abrams v. Musgrove, 12 Pa. St. 295; 
 Purinton v. Security, etc., Co., 72 Me. 
 22; Nobleboro v. Clark, 68 Me. 87; s. c, 
 28 Am. Rep. 22; Daughtrey v. Knolle, 
 44 Tex. 450. 
 
 Where a deed stated that it was made 
 by a corporation, and no agency men- 
 tioned, it was held that the signature by 
 the president of the corporation, as 
 president, did not make it his deed. 
 Hopkins v. Mehaffy, 11 Serg. & R. (Pa.) 
 126; Gottfried zi. Miller, 104 U. S. 521. 
 
 3. Tippets V. Walker, 4 Mass. 595; 
 Elwell V. Shaw, 16 Mass. 42; s. t., 8 Am. 
 Dec. 126; FuUam v. West Brookfield, 9 
 Allen (Mass.), l; Dusenbury v. Ellis, 3 
 Johns. Cas. (N. Y.) 70; ». c, 51 Am. 
 Dec. 144; Taft v. Brewster, 9 Johns. (N. 
 Y.) 334; s. c, 6 Am. Dec. 280; Briggs 
 V. Partridge, 64 N. Y. 357; s. t., 21 Am. 
 Rep. 617; White v. Skinner, 13 Johns. 
 (N. Y.) 307; s. c, 7 Am. Dec. 381; Ran- 
 dall V. Van Vechten, 19 Johns. (N. Y.) 
 60; s. c, ID Am. Dec. 193; Meech v. 
 Smith, 7 Wend. (N. Y.) 315; Stone v. 
 Wood, 7 Cow. (N. Y.) 453; s. c, 17 
 Am. Dec. 529; Palmer w. Stephens, I 
 Denio (N. Y.), 471; Whitford v. Laidler, 
 94 N. Y. 145; s. c, 46 Am. Rep. 131; 
 Kiersted v. Orange, etc., R. Co., 69 N. 
 Y. 343; Buffalo, etc., Inst. v. Bitter, 87 
 N. Y. 250; Bay v. Cook, 22 N. J. L. 343; 
 Dayton v. Warne, 43 N. J. L. 659; 
 Borcheling v. Katz, 37 N. J. Eq. 150; 
 Kansas City v. Hannibal, etc., R. Co., 77 
 Mo. 180; Shewalter v. Pirner, 55 Mo. 218; 
 Denning v. Bullitt, i Blackf. (Ind.) 241; 
 Stinchfield v. Little, i Greenl. (Me.) 231; 
 s. c, 10 Am. Dec. 65; Mahoney v. Mc- 
 Lean, 26 Minn. 415; Menard v. Crowe, 
 20 Minn. 448; Scott v. McAlpin, N. Car. 
 Term, 155; s. c, 7 Am. Dec. 703; Locke 
 w. Alexander, 2 Hawkes (N. Car.), 155; 
 s. c, II Am. Dec. 750; Quigley v. De 
 Hass, 82 Pa. St. 267; Taylor v. Agricul- 
 
 tural, etc., Assoc, 68 Ala. 229; Provi- 
 dence V. Miller, 11 R. L 272; Hancock w. 
 Yunker, 83 111. 208; Grau w. McVicker, 
 8 Biss. (U. S.) 13; Lutz v. Lintbicum, 8 
 Pet. (U. S.) 155; Duvall v. Craig, 2 
 Wheat. (U. S.) 45. 
 
 But such instrument may be enforced 
 in equity. Taylor v. Agricultural, etc., 
 Assoc, 68 Ala. 229. 
 
 An action upon a covenant in a deed 
 on the part of the grantee by which he as- 
 sumes an incumbrance, cannot be main- 
 tained against a third person upon proof 
 outside of the instrument that the gran- 
 tee was, in fact, acting as agent and 
 dealing for such a third person. Tuthill 
 u. Wilson, go N. Y. 423. 
 
 A bond which read, "I promise to 
 pay, ' etc., omitting the obligor's name, 
 and executed by the agent as follows : 
 "Witness my hand and seal, H. S. Lu- 
 cas [Seal], for Chas. Callender, president 
 of tlie Chester Mica and Porcelain Co.," 
 imposed a personal liability on the agent. 
 Bryson v. Lucas, 84 N. Car. 680; s. u., 
 37 Am. Rep. 634. 
 
 A bond made as follows : " Know all 
 men by these presents, that we. A, B, C, 
 D, trustees of the Methodist Episcopal 
 Church of Jacksonville, their successors 
 and assigns," etc., and signed and sealed 
 by the trustees, as individuals, is a per- 
 sonal bond of the individuals named. 
 Dayton v. Warne, 43 N. J. L. 659. 
 
 The owner of a building executed a 
 lease of it, under seal, for a term of 
 years, to T., who was^ the general agent 
 and treasurer of a corporation, which 
 was not named or referred to in the lease, 
 and which had authorized T. "to hire 
 and pay for all necessary stores - and 
 warehoiises. " T. took the lease with 
 the intention that the building sho'uld be 
 occupied by the corporation, and his 
 agency and purpose were known to the 
 lessor. The corporation did not do busi- 
 ness in the name of T. and use that name 
 as describing itself in the lease. The 
 corporation occupied the demised prem- 
 ises, and paid rent therefor on bills ren- 
 
 397 
 
^signatures by Agents. 
 
 AGENCY. 
 
 Bills and Notes. 
 
 Bills and Notes. — The same general rule applies also to the sig- 
 natures of agents to negotiable instruments. The fact that the 
 agent signs as Such should appear upon the face of the instrument. 
 If the name of the principal does not appear, the mere signing as 
 "agent," "trustee," or "president" is regarded as simply de- 
 .•Scriptive of the person so signing ; and he will be held personally 
 diabjie.i 
 
 .dered to it by the lessor. T. underlet Rice, 122 Mass. 67; Hays v. Crutcher, 54 
 
 a portion of the building, for which the 
 sub-tenants paid rent to tlie corporation. 
 T. had almost the entire management of 
 the affairs of the corporation, and min- 
 gled his own accounts and ?ash with 
 Xhose of the corporation. T. became 
 bankrupt, and his assignees in banlt- 
 ruptcy elected not to assume the lease. 
 Held, that the lessor could not maintain 
 iz. bill in equity to charge the corporation 
 on the covenants of the lease; that the 
 rent due from the sub-lessees at the time 
 of T.'s bankruptcy belonged to his as- 
 signees; and that the lessor was entitled 
 to a decree for the rent accruing subse- 
 quently to T.'s bankruptcy. Haley v. 
 Boston B. Co., 140 Mass. 73. 
 
 A lease under seal, executed by an 
 ^gent as lessee in his individual name, 
 and which does not purport to be exe- 
 .cuted on behalf of the principal, is not 
 binding on the latter, although the fact of 
 the agency is recited therein, and al- 
 though it appears by extrinsic evidence 
 that the lessee acted as agent; the instru- 
 ment can only be enforced against the 
 party who appears upon the face of it to 
 be the covenantor. Kiersted v. Orange, 
 etc., R. Co., 69 N. Y. 343. Compare Tidd 
 -V. Rines, 26 Minn. 201. 
 
 1. Edwards on Bills and Notes, 83; 
 Byles on Bills, '6th Am. Ed., 60; Story on 
 Prom. Notes, § 68; Story on Agency, §§ 
 155,275; Whatson on Agency, 290; Pentz 
 ■V. Stanton, 10 Wend. (N. Y.) 271; s. t., 
 25 Am. Dec. 558; Bank of Rochester v. 
 Monteath, i Denio (N.''Y.), 402; s. c, 
 43 Am. Dec. 681; Joynson v. Richard, 
 12 Jones & S. (N. Y.) 20; Hills v. Ban- 
 nister, 8 Cow. (N. Y.) 31: Schraittler v. 
 Simon, loi N. Y. 554; Mann v. Chand- 
 ler, 9 Mass. 335 ; Davis v. England, 6 N. 
 East. Repr. (Mass.) 731; Stackpole v. 
 Arnold, 11 Mass. 27! s. c, 6 Am. Dec.150; 
 Firke v. Eldridge, 12 Gray (Mass.), 4P4; 
 Bank of British N. A. v. Hooper, 5 Gray 
 ■^Mass.), 567; Williams V. Robbins, 16 
 Gray (Mass.), 77; s. c, 77 Am. Dec. 396; 
 Seaver v. Coburn, 10 Cush. (Mass.) 
 324; Morell V. Codding, 4 Allen (Mass.), 
 403; Sturdivant I/. Hull, 59 Me. 172; s. c, 
 8 Am. Rep. 409; Tucker Mfg. Co. v. 
 Fairbanks, 98 Mass. loi; Towne v. 
 
 Ind. 261; Williams v. Lafayette Bank, 
 83 Ind. 237; Winship v. Smith, 61 Me. 
 118: Rendell v. Harriman, 75 Me. 497; 
 s. c, 46 Am. Rep. 421 ; Castle v. Belfast 
 F. Co., 72 Me. l67;Walker v. Christian, 
 21 Gratt. (Va.) 291 ; Early v. Wilkinson, 9 
 Gratt. (Va.) 68; Shaver v. Ocean M. Co., 
 
 21 Cal. 45; Blanchard w.' Kaull, 44 Cal. 
 440; Chamberlain v. Pac. Wool G. Co., 
 54 Cal. 106; Scott V. Baker, 3 W. Va. 
 285 ; Rand v. Hale, 3 W. Va. 495 ; De- 
 vendorf v. W. Va., etc., Co., 17 W. Va, 
 135; Collins V. Buckeye Ins. Co., 17 
 Ohio St. 215; Bank v. Cook, 38 Ohio St. 
 442; Am. Ins. Co. v. Stratton, 59 Iowa 
 6g6; Harkins v. Edwards, I Iowa, 426; 
 Tilden w. Barnard, 43 Mich. 376; s. t., 
 38 Am. Rep. 197; Cahokia School Trus- 
 tees, etc., V. Rautenberg, 88 111. 220; 
 Chadsee v. McCreery, 27 111. 253; Bick- 
 ford V. Bank, 42 III. 23S; Burlingame v. 
 Brewster, 79 111. 515; s. c, 22 Am. Rep. 
 177; Powers V. Briggs, 79 111. 493; s. c, 
 
 22 Am. Rep. 175; Hypes v. Griffin, 8g 
 111. 134; s. c, 31 Am. Rep. 71; New 
 Market Sav. Bank v. Gillet, 100 111. 254; 
 s. c, 39 Am. Rep. 39; Scanlan v. Keith, 
 102 111. 640; Woodbury v. Blair, 18 Iowa, 
 572; Am. Ins. Co. v. Stratton, 13 N. West- 
 ern Repr. (Iowa) 763; Roberts w. Austin, 
 
 5 Whart. (Pa.) 313; Arnold v. Sprague, 34 
 Vt. 402; Rittenhouse v. Am merman, 64 
 Mo. 197; Savage v. Rix, g N. H. 263; 
 Dow V. Moore, 47 N. H. 419; Fowler v. 
 Atkinson, 6 Minn. 578; Fitch v. Lawton, 
 
 6 How. (Miss.) 371; Burbank v. Posey, 
 
 7 Bush (Ky.),'373; Gregory v. Leigh, 33 
 Tex. 813; Graham v. Campbell, 56 Ga. 
 258; Rawlins v. Robson. 70 Ga. 595; Faw 
 V. Neals, 55 Ga. 711; Tannatt v. Nat. 
 Bank, i Colo. 279; Drake v. Flewellen, 
 33 Ala. 106; Anderson v. Pearce, 36 Ark. 
 293; s. c., 38 Am. Rep. 39; Guthrie v. 
 Irabrie, 10 Am. & Eng. Corp. Cas. 333; 
 s. c. , 12 Oreg. 182; Lockwood v. Coley, 
 22 Fed. Rep. 192; Downman v. Jones. 4 
 Q. B. 235 ; Dutton v. March, L. R. 6 Q. B. 
 361. Compare Metcalf v. Williams, 104 
 U. S. 93; Parsons on Bills and Notes, 
 168. 
 
 "Marietta, Ga., January 21st, 1869. 
 Received of Mrs. Julia B. Meals, by the 
 hands of -Mrs. Mary W. Phillips, nine 
 
 388 
 
Signatures by Agents. 
 
 AGEMCY. 
 
 Name of Principal. 
 
 Name of Principal appearing on Face of Instrument. — Where the 
 name of the principal appears on the face of the instrument, an 
 indorsement by an authorized agent with the descriptive words 
 ^'Treasurer," " President," "Agent," etc., will be a sufficient in- 
 dorsement to bind the principal.^ 
 
 pay," etc., and signed "John T. Hull, 
 Treas., St. Paul's Parish," held X.O be the 
 note of Hull. Sturdivant v. Hull, 59 Me. 
 172; s. c, 8 Am. Rep. 409; Tilden v. 
 Barnard, 43 Mich. 376; s. c, 38 Am. 
 Rep. 197. 
 
 A draft concluding " and charge the 
 same to account of proprietors Pembroke 
 Iron Works, Your humble servant, 
 Joseph Barrell," without otherwise nam- 
 ing a principal or disclosing the signer's 
 agency, was held to bind him only. Bank 
 of British N. A. v. Hooper, 5 Gray 
 (Mass.), 567. 
 
 A note drawn " We, the trustees of the 
 Methodist Episcopal Church in Leb- 
 anon." etc., and signed by them as indi- 
 viduals, held to be the note of the signers 
 as individuals. Hypes v. Griffin, 89 III. 
 134; s. c, 31 Am. Rep. 71. See also 
 Pack 11. White, 78 Ky. 243; Hayes v. 
 Brubaker, 65 Ind. 27. 
 
 A similar note was signed by the trus- 
 tees, with the addition of word " trustees" 
 after their names collectively. Held, that 
 they were individually liable. Powers v. 
 Briggs, 79 111. 493; s. c, 22 Am. Rep. 
 175. See also Burlingame v. Brewster, 
 79 111. 515; s. c, 22 Am. Rep. 177; 
 Mears v. Graham, 8 Blackf. (Ind.) 144; 
 McClure v. Bennett, i Blackf. (Ind.) 189; 
 s. c, 12 Am. Dec. 223; Hills v. Ban- 
 nister, 8 Cow. (N. Y.) 31; McClellan v. 
 Robe, 93 Ind. 298; Williams v. Lafayette 
 Bank, 83 Ind. 237. Compare New Mar- 
 ket Sav. Bank v. Gillett, 100 111. 254; 
 s. c, 39 Am. Rep. 39. 
 
 1. Russell V. Folsom, 72 Me. 436; 
 Chase v. Hathorn, 61 Me. 505; Dunn v. 
 Weston, 71 Me. 275; Farmers & Mechs. 
 Bank v. Colby, 64 Cal. 352; Nicholas v. 
 Oliver, 36 N.,H. 219; Folger v. Chase, 
 18 Pick, (Mass.) 63; Mclhtyre v. Preston, 
 5 Gilm. (111.) 48; s. c, 48 Am. Dec. 321; 
 Milligan v. Lyle, 24 La. Ann. 144; New 
 Market Savings Bank v. Gillet, 100 111. 
 254; Gerber v. Stuart, i Montana, 172; 
 Wallis V. Johnson, 75 Ind. 368. 
 
 In Slawson v. Loring, 5 Allen (Mass.), 
 340, a draft having the words "Office of 
 Portage Lake Manufacturing Company, 
 Hancock, Michigan," printed at the top 
 and signed "J. R. Jackson, Agent," was 
 held to disclose the principal, and the 
 agent was not liable. 
 
 A bank check with the words ' ' jEtna 
 Mills" printed on the margin, and signed 
 
 hundred dollars, which said sum of 
 money I obligate myself to use in run- 
 ning capital of the Marietta mill, and keep 
 the same in money, stock, material or 
 paper, not subject to the debts of the mill. 
 I further obligate myself to pay Mrs.Meals 
 Twelve per cent interest on the same, pay- 
 able monthly. I further obligate myself 
 and promise to pay her as much as five 
 hundred dollars of the principal sum on 
 or before the first day of May next, if 
 <;alled upon, the remainder due and pay- 
 able twelve months after date, at which 
 time and date I promise to pay Mrs. 
 Meals, or bearer, whatever of said prin- 
 cipal sum and interest which may be due 
 and unpaid." (Signed) " E. Faw, Agent 
 for the Marietta Paper Mill Company." 
 Held, to be the personal undertaking of 
 Faw. Faw v. Meals, 65 Ga. 711. 
 
 The drawee of a bill of exchange, 
 drawn by the " K. & O. Coal Co.," was 
 described in the bill as "John A. R., 
 Agt.," and it was accepted by him as 
 "John A. R., Agent K. & O. C. Co." 
 Held, that the' acceptance so made was 
 the personal obligation of John A. R., 
 and that in a suit upon the accept- 
 ance by an indorsee against him parol 
 evidence was not admissible, in the ab- 
 sence of fraud, accident, or mistake, to 
 ■show that the defendant so accepted the 
 bill intending to bind the drawer as his 
 principal, and that this fact was known 
 to the plaintiff at the time it became the 
 owner and holder of it. Robinson v. 
 Kanawha Valley Bank, 8 N. East. Repr. 
 <Ohio) 583. 
 
 A promissory note saying " We prom- 
 ise CO pay" and signed " D. B. L. , 
 Treas'r Hallowell Gas Light Co.," is the 
 note of the individual. McClure v. Liv- 
 ermore, 7 East. Repr. (Me.) 258. 
 
 In Scott V. Baker, 3 W. Va. 285, a 
 note in the following form was held to 
 be the individual note of the parties sign- 
 ing it: 
 $342.25. December 19, 1866. 
 
 Sixty days after date, we promise to 
 pay to the order of J. W. Baker, three 
 hundred and forty-two ^5 dollars, at 
 Second National Bank of Parkersburg; 
 value received. 
 
 William Scott, 
 President Blannerbasset Oil Co. 
 W. H. Homer, Treasurer. 
 
 A note in the form "I promise to 
 I C. of L.— 26 i 
 
signatures })j Agents. 
 
 AGENCY. Seal — Signing Negotiable Paper,. 
 
 Corporate 5V«/.^Although a corporate seal impressed upon a 
 promissory note is no part of the note itself, yet if it contain the 
 name of the coi'poration in full it may be taken, with other fact's^ 
 to explain the intent of the makers of the note who, in signing^ 
 have affixed to their names the words " President" and " Sec. G. 
 M. Co.," respectively.^ 
 
 Agents in the Habit of Signing Negotiable Paper — But adding the 
 title " Agent" to the signature of the drawer of a bill, is notice that 
 the party does not mean to be personally liable, and where the 
 principal is known he alone is liable. This is especially the case 
 where.jthe agent has been in the constant habit of signing negb-. 
 tiable paper for his principal in this manner, and this fact is known 
 to the parties holding the paper.** 
 
 "J. D. Farnsworth, Treasurer,'' Held 
 to be the check of the ^tna Mills. Car- 
 penter V. Farnsworth, io6 Mass. 561; s. 
 c, 8 Am. Rep.' 360. 
 
 In Tripp v. Swanzey Paper Co., 13 
 Pick. (Mass.) 291, a draft not naming -the 
 principal otherwise than by concluding, 
 "and charge the same to the Swanzey 
 Paper Co. Yours respectfully, Joseph 
 Hooper, Agent," was held to be the draft 
 of the company. 
 
 In Fuller v. Hooper, 3 Gray (Mass;), 
 334, a draft with the words " Pompton 
 Iron Works" printed in the margin and 
 concluding, " which place to the account 
 of Pompton Iron Works. W. Burtt, 
 Agent," was held to bind the proprietor of 
 the Pompton Iron Works. See also Slaw- 
 son V. Loring, 5 Allen (Mass.), 340; Hitch- 
 cock V. Buchanan, 15 Otto (U. S.), 416. 
 
 In Simpson v. Garland, 72 Me. 40; s. 
 c, 39 Am. Rep. 297, it was held that a 
 note drawn as follows, ' ' We, the sub- 
 scribers for the Carmel Cheese Mfg. 
 Co.," etc., and signed by the subscribers, 
 who were directors of the company, with- 
 out any official description, was held to be 
 the note of the company. 
 
 Note phrased "We, as trustees," and 
 signed by the trustees as individuals, was 
 held not to be the personal note of the 
 trustees. Sanborn v. Neal, 4 Minn. 126; 
 s. c, 77 Am. Dec. 502. See also Blanch- 
 ard V. KauU, 44 Cal. 440. Compare Ross 
 V. Brown, 74 Me. 352. 
 
 A note drawn " I promise, for the use 
 of N. E. P. Union Store," etc., and 
 signed " A., Treasurer," did not bind the 
 agent. Dow v. Moore, 47 N. H. 419. 
 
 A note drawn " I promise to pay," etc., 
 and signed "Pro. C. D,, A. B.," is the 
 note of the principal. Long ». Coburn, 
 II Mass. 97; s. c, 6 Am. Dec. 160. 
 
 A note signed "J. A. Robson, Agent 
 for his Wife," is the note of the wife. 
 RaVflins v. Robson, 70 Ga. 595. 
 
 A note reading "The Howard County 
 Agricultural Association, who execute, 
 this note by her directors, do promise,'" 
 etc, signed by "A., Secretary," and 
 others followed by the words " Directors 
 Howard County Agricultural Associa- 
 tion," was held to be the note of the 
 association. Armstrong v. Kirkpatrick, 
 79 Ind. 527. 
 
 The word "as" prefixed to the descrip- 
 tive part of the signature has beeri held 
 to charge the principal. Price v. Taylor,, 
 5 Hurl. & N. 540. 
 
 1. Guthrie w. Itabrie, 10 Am. & Erig. 
 Corp. Cas. 333; s. c, 12 Oregon, 182J 
 Means v. Swormstedt, 32 Ind. 87; Scan- 
 Jan V. Keith, 102 111. 640. But see opin- 
 ion of Waldo, C. J., in Guthrie v. Imbrie, 
 infra, and Dutton v. Marsh, L. R. 6 Q. 
 B. 361. 
 
 2. Metcalf -v. Williams, 104 U. S. 93; 
 Conro V. Port Henry Iron Co., 12 Barb. 
 (N. Y.) 27; Mott V. Hicks, i Cow. (N.Y.) 
 513; s. c, 13 Am. Dec. 550; Mech. Bank 
 V. Bank of Columbia, 5 Wheat. (U. S.) 
 326; Blanchard v. KauU, 44 Cal. 440; 
 Lander ». Castro, 43 Cal. 497; Hall v. 
 Crandall, 29 Cal. 568; Bean v. Pioneer 
 Min. Co., 66 Cal. 451; Haile v. Peirce, 32 
 Md. 327; Houghton v. First Nat. Bank, 
 26 Wis. 663; Lacy v. Dubuque Lumber 
 Co., 43 Iowa, 510. Compare Towne v. 
 Rice, 122 Mass. 67. 
 
 No party can be charged as principal 
 upon a negotiable note or bill of exchange 
 unless his name is thereon disclosed. 
 An exception to this rule arises where 
 officers or clerks in banking-houses, or 
 other persons who are permitted to act 
 as such, receive money or securities over 
 the bank counter, and issue therefor 
 drafts, bills, or negotiable certificates of 
 deposit. In all' such cases the banking- 
 house is ultimately liable, although such 
 draft, bill, or certificate may be signed 
 by such officer, clerk, or person without 
 
 390 
 
Signatures by Agents. 
 
 AGENCY. Amliiguons Instruments — Credit; 
 
 Ambiguous Instruments. — Where the.instrument is ambiguous or 
 tlie principal has by usage authorized the signature, parol evidence 
 is admissible to prove that the party signing has done so for and 
 as the authorized agent of the principal. '^ 
 
 Credit of Parties whose Names appear. — In general it may be 
 said that persons dealing with negotiable instruments are pre- 
 sumed to take them on the credit of the parties whose names ap- 
 pear upon them; and a person not a party cannot be charged 
 upon parol proof that the ostensible party signed or indorsed as 
 his agent.* 
 
 disclosing the name of the banking- 
 house. Webster v. Wray, 27 N. Western 
 Repr. (Neb.) 644. 
 
 A note made to the order of "A. B., 
 cashier," and indorsed by him in like 
 manner.is not his individual indorsement. 
 Babcock v. Beman, 11 N. Y. 200; Bank 
 of Genesee v, Patchin Bank, 19 N. Y. 
 312; Bank of N. Y. v. Bank of Ohio, 29 
 N. Y. 6ig. 
 
 So an indorsement of a note to the 
 cashier of a moneyed corporation, by 
 adding the word "cashier" to his name 
 in the indorsement, is a transfer to the 
 corporation when that was the design of 
 the transaction. Watervliet Bank v. 
 White, I Denio (N. Y.), 608. 
 
 A., being the authorized agent of a 
 manufacturing company, gave B. a note, 
 in the body of which were th^e words : 
 " I promise to pay," etc., the signature 
 being "A., agent for the M. M. Com- 
 pany." It appeared that A. had been in 
 the constant habit of signing notes in 
 this manner with the knowledge of the 
 company. Held, that he was not person- 
 ally liable. Hovey v. Magill, 2 Conn. 680. 
 
 If the name of the principal precedes 
 or follows the name of agent signing, as 
 "John Smith by John Brown, agent," 
 or "John Brown for John Smith," then 
 the principal will be liable, and not the 
 agent. Simpson v. Garland, 72 Me. 40; 
 s. c. , 39 Am. Rep. 297; Sturdivant v. 
 Hull, 59 Me. 172; s. c, 8 Am. Rep. 704; 
 Atkins V. Brown, 59 Me, 90; Sheridan 
 V. Carpenter, 61 Me. 83; Winship v. 
 Smith, 61 Me. 118; Ballou v. Talbot, 16 
 Mass. 461; Tucker Manuf. Co. v. Fair- 
 banks, 98 Mass. loi ; Morrell v. Codding, 
 4 Allen (Mass.), 403; Draper v. Mass. 
 Steam H. Co., 5 Allen (Mass.), 338; Rice 
 V. Grove, 22 Pick. (Mass.) 158; s. c. , 33 
 Am. Dec. 724; Emerson v. Providence, 
 etc., Co., 12 Mass. 237; Rawlins v. Rob- 
 son. 70 Ga. 595. 
 
 A note reading "We promise," etc., 
 and signed Burlington & Southwestern 
 Ry. Co., V. R. Moore, A. Tr. ; held, 
 that it was the note of the railroad. 
 Turner v. Potter, 56 Iowa, 251. 
 
 A note signed " Belfast Foundry Co., 
 W. W. Castle, President," is the note of 
 the company. Castle o. Belfast F. Co. 
 72 Me. 167. 
 
 But where a note was drawn "We, 
 jointly and severally," and signed "for 
 the Boston Glass Manufactory, A., B. 
 & C," it was held that the joint and sev- 
 eral promise and the omission of any 
 designation of official character made it 
 an individual note of the signers. Brad- 
 lee V. Boston Glass Man'f'y, i5 Pick. 
 (Mass.) 347. 
 
 1. I Daniel's Neg. Instr. § 418; Weeks 
 V. Fox, 3 Thomp. & C. (N. Y.) 355; 
 Bank of Rochester v. Monteath, i Denio 
 (N. Y.), 402; s. c, 43 Am. Dec. 681; 
 Brockway v. Allen, 17 Wend. (N. Y.) 40; 
 Rogers v. Coit, 6 Hill (N. Y.), 322; Beers 
 V. Phoenix Glass Co., 14 Barb. (N. Y.) 
 358; Hood z'. Hallenbeck, 7Hun(N.Y.), 
 367; Stearns v. Allen, 25 Hun (N. Y.), 
 558; Whitford v. Laidler, 94 N. Y. 145; 
 Kean v. Davis, i Zab. (N. J.) 683; s. c, 
 47 Am. Dec. 182; Hovey v. Magill, 2 
 Conn. 680; Medway Mfy. v. Adams, 
 10 Mass. 360; Fuller v Hooper, 3 Gray 
 (Mass.), 334; Bradlee v. Boston Glass 
 Mfy., 16 Pick. (Mass.) 347; Bryant v. 
 Eastman, 7 Cush. (Mass.) iii; Markley 
 V. Quay, 14 Phila. (Pa.) 164; Hardy v. 
 Pilcher, 57 Miss. 18; s. c, 34 Am. Rep. 
 432; Devendorf v. WestVa. , etc., Co., 
 17 W. Va. 135; Richmond, etc., R. Co. 
 V. Snead, 19 Gratt. (Va.) 354; Walker v. 
 Christian, 21 Gratt. (Va.) 291; Haile v. 
 Peirce, 32 Md. 327; Rendell v. Harri- 
 man, 75 Me. 497; s. c, 46 Am. Rep. 
 421; Hager w. Rice, 4 Colo. 90; McClel- 
 land V. Reynolds, 49 Mo. 312: Kloster- 
 mann v. Loos, 58 Mo. 290; Pratt v. 
 Beaupre, 13 Minn. 187; Scanian z. Keith, 
 102 111. 640; Lazarus v. Shearer, 2 Ala. 
 718; Bean v. Pioneer Min. Co., 66 Cal. 
 451; Metcalf V. Williams, 104 U. S. 93; 
 Mechanics' Bank v. Bank of Columbia, 5 
 Wheat. (U. S.) 326; Baldwin v. Bank of 
 Newbury, i Wall. (U. S.) 234. See Mor- 
 ris V. Faurot, 21 Ohio St. 155; s. c, 8 
 Am. Rep. 45. 
 
 2. Am. Lead. Cas; (5th Ed.) 763, 764; 
 
 391 
 
Signatures by Agents. 
 
 AGENCY. 
 
 Simple Contracts. 
 
 Simple Contracts. — Where a simple contract, other than a bill or 
 note, is made by an agent in his own name, whether he describes 
 himself to be an agent or not, whether the principal be known or 
 unknown, he, the agent, will be liable to be sued, and entitled to 
 sue thereon ; and his principal also will be liable to be sued and 
 be entitled to sue thereon in all cases ; and parol evidence is ad- 
 missible, although the contract is in writing, to show that the per- 
 son named in the contract was an agent, and that he was acting 
 for his principal.^ 
 
 Notes. For "Bought and sold notes," 
 see Brokers. For Charter-parties, see 
 Shipping. 
 
 1. Story on Contr. , § i6o; Nash v. 
 Towne, 5 Wall. (U. S.) 6Sg;. New Jersey, 
 etc.; Co. V. Merchants' Bank, 6 How. 
 (U. S.) 344; Ford V. Williams, 21 How. 
 (U. S.) 287; Oelrichs v. Ford, 23 How. 
 (U. S.) 63; Mechanics' Bank v. Bank of 
 Columbia, 5 Wheat. (U. S.) 326; Clarke 
 V. Van Reimsdyk, g Cranch. (U, S.) 153; 
 Post V. Pearson, 108 U. S. 418; Taylor 
 V. Guest, 45 How. Pr. (N. Y.) 277; NicoU 
 V. Burke, 78 N. Y. 581: Shaefer v. 
 Henkel, 7 Abb. N. C. (N. Y.) i; Tucker 
 V. Woolsey, 64 Barb. (N. Y.) 142; s. c, 
 6 Lans. N. Y. 482; Green v. Skeel, 2 
 Hun (N. Y.), 485; Beebee v. Roberts. 12 
 Wend. (N. Y.) 413; s. c, 27 Am. Dec. 
 132; Taintor v. Prendergast, 3 Hill. (N. 
 Y.) 72; Cqleman v. Nat. Bank, 53 N. Y. 
 388; Dykers v. Townsend, 24 N. Y. 57; 
 NicoU V. Burke, 45 N. Y. Super. Ct. 75; 
 Davis V. England, 141 Mass. 587; By- 
 ihgton V. Simpson, 134 Mass. 169; s. c, 
 45 Am. Rep. 314; Nat. Ins. Co. ii. Allen, 
 116 Mass. 398; Commercial Bank v. 
 French, 21 Pick. (Mass.) 486; s. c, 32 
 Am. Dec. 280; James v. Bixby, li Mass. 
 34; Exchange Bank v. Rice, 107 Mass. 
 37; s. c, 9 A.m. Rep. i; Hunter v. Gid- 
 dings, 97 Mass. 41; Lerned v. Johns, 9 
 Allen (Mass.), 419; Eastern R. Co. v. 
 Benedict, 5 Gray (Mass.), 561; Hunting- 
 ton V. Knox, 7 Cush. (Mass.) 371; Slaw- 
 son V. Loring, 5 Allen (Mass.), 340; 
 Brown v. Parker, 7 Allen (Mass.). 337; 
 Taunton, etc.. Turnpike v. Whiting, 10 
 Mass. 327; Steamship Bulgarian Co. v. 
 Merchants' Desp. Co., 135 Mass. 421; 
 Potter V. Yale College, 8 Conn. 52; 
 Jones v. Ins. Co., 14 Conn. 501; York 
 Co. Bank v. Stein, 24 Md. 447; King v. 
 Handy, 2 111. App. 212; Fowle v. Kerch- 
 ner, 87 N. Car. 49; Dupont v. Mount 
 Pleasant F. Co.. 9 Rich. (S. Car.) 255; 
 Deering f. Thom. 29 Minn. 120: Chand- 
 ler V. Cac. 54 N. H. 561; Vioktt v. 
 Powell. 10 B. Monr. (Ky.) 347; Borctier- 
 ling V. Katz, 37 N. J. Eq. 150; Edwards 
 V. Golding, 20 Vt. 30; Rutland, etc., R. 
 Co. V. Cole, 24 Vt. 33; Vermont, etc., R. 
 
 Barker v. Mechanics' Ins. Co., 3 Wend. 
 (N. Y.) 94; s. c.,2oAm. Dec. 664; Pentz 
 V. Stanton, 10 Wend. (N. Y.) 271; s. c, 
 25 Am. Dec. 558; Snelling v. Howard, 
 51 N. Y. 373; Bank of Utica v. Magher, 
 18 Johns. (N. Y.) 341; De Witt v. Walton 
 9 N. Y. 570; Briggsi'. Partridge, 64 N. Y. 
 358; s. c, 21 Am. Rep. 617; Finan v. 
 Babcock, 58 Mich. 301 ; Tannatt v. Rocky 
 Mountain Nat. Bank, i Colo. 278; Kean 
 V. Davis, I Zab. (N. J.) 583; s. c., 47 
 Am. Dec. 182; Arnold v. Sprague, 34 
 Vt. 402; Barlow v. Congr. Soc. 8 Allen 
 (Mass.), 460; Brown v. Parker, 7 Allen 
 (Mass.), 337; Stackpole v. Arnold, n 
 Mass. 27; s. c, 6 Am. Dec. 150; Eastern 
 R. Co. V. Benedict, 5 Gray (Mass.), 561; 
 Bank of Brit. N. Amer. v. Hooper, 5 
 'Gray (Mass.), 567; Bass v. O'Brien, 12 
 Gray (Mass.), 481; Slawson v. Loring, 5 
 / Allen (Mass.), 340; Davis v. England, 
 141 Mass. 587; Devendorf v. West Va., 
 etc., Co., 17 W. Va. 135; Anderton v. 
 Shoup, 17 Ohio St. 125; Bank v. Cook, 
 38 Ohio St. 442; Sturdivant v. Hull, 59 
 Me. 172; s. u., 8 Am. Rep. 409; Rendell 
 11. Harriman, 75 Me. 497; Hypes v. 
 Griffen, 89 111. 134; s. c, 31 Am. Rep. 
 71; Powers V. Briggs, 79 111. 493; s. c, 
 22 Am. Rep. 175; Baker v. Chamblis, 4 
 G. Gr. (Iowa) 429; Wing v. Gluck, 56 
 Iowa, 473; s. c, 37 Am. Rep. 142, note; 
 Mechanics' Bank v. Bank, 5 Wheat. (U. 
 S.) 326. 
 
 A promissory note signed " W. H. 
 England, President and Treasurer Chelsea 
 Iron Foundry Company," is England's 
 individual note and not the note of the 
 company. Oral testimony is inadmissible 
 to show that at the time the note was 
 given it was understood and agreed by the 
 parties that it was to be the note of the 
 company. Davis v. England, 141 Mass. 
 
 587. 
 
 A note reciting " We promise to pay, 
 etc., was signed by four individuals, add- 
 ing ' President and Directors of the Pros- 
 pect and Stockton Cheese Co." Held, 
 that evidence that it was the obligation 
 of the company was inadmissible. Ren- 
 cell V. Harriman, 75 Me. 497; s. c, 46 
 Am. Rep, 421. See also Bills and 
 
Signatures by Agents. 
 
 A GENC Y. Agent must Sign ids Kame also. 
 
 Must Sign His Name Also. — It has been held that an agent 
 signing for his principal cannot merely sign the principal's name, 
 but that he must add some words indicating that the signature 
 was not executed by the principal personally, but by his agent.^ 
 But it does not seem that the weight of authority deems such an 
 addition absolutely necessary.* 
 
 Co. V. Clayes, 21 Vt. 30; Texas L. & C. 
 Co. V. Carroll, 63 Tex. 48; Ferris v. 
 Thaw, 72 Mo. 446; Garland v. Reynolds, 
 20 Me. 45; Trustees, etc.. v. Parks, i 
 Fairf. (Me.) 441; State v. Boies, 2 Fairf. 
 (Me.) 474; Hopkins v. Lacouiure, 4 Mil- 
 ler (La.), 64; Hyde v. Wolf, 4 La. 234; 
 s. c, 23 Am. Dec. 484; Butler v. Kaul- 
 back, 8 Kans. 668; Wolfley v. Rising, 12 
 Kans. 535; Railroad Co. v. Thacher, 13 
 Kans. 564; Hays v. Lynn, 7 Watts (Pa.), 
 524; Merrick's Est., 5 Watts & S. (Pa.) g; 
 McDonald v. Bear River Co., 13 Cal. 
 22q; Brewster v. Baxter, 2 Wash. Ter. 
 135. Compare Rowell v. Olson, 32 Minn. 
 288. 
 
 Such evidence does not deny that the 
 contract binds those whom on its face it 
 purports to bind, but shows that it also 
 binds another. Nash v. Towne, 5 Wall. 
 (U. S.) 689; Bryan v. Brazil, 52 Iowa, 
 
 350- 
 
 The unnecessary addition of seals may 
 be treated as surplusage, and disregarded. 
 Cook V. Gray, 133 Mass. 106. See also 
 Blanchard v. Blackstone, io2 Mass. 343; 
 Schmertz v. Shreeve, 62 Pa. St. 457; 
 Purviance v. Sutherland, 2 Ohio St. 478; 
 Human v. Cunifie, 32 Mo. 316; Stowell 
 V. Eldrid, 39 Wis. 614; Evans v. Wells, 
 22 Wend. (N. Y.) 324;. Dubois v. Dela- 
 ware, etc.. Canal Co., 4 Wend. (N. Y.) 
 285; Dickerman f. Ashton, 21 Minn. 538. 
 
 In an action against a third person on 
 a simple non-negotiable contract, it be- 
 ing alleged in the petition that one of 
 the parties to the contract acted as the 
 agent of the defendant in making said 
 contract, although he did not sign the 
 same as agent, or name the defendant as 
 his principal, evidence will be received 
 to show that such nominal party to the 
 contract was authorized to make the 
 same for the defendant; that he in fact 
 did make the same for him; and upon 
 such proof the defendant will be held. 
 Webster v. Wray, 27 N. W. Repr. (Neb.) 
 644. 
 
 The following note was the basis of a 
 suit: 'Corpus Christi, Texas, June 8, 
 1883. The Texas Land and Cattle Com- 
 pany, Limited: Pay to the order of Carroll 
 & Iler, eighteen hundred and five 06-100 
 dollars in current funds. On account 
 of building and repairs. , Payment in 
 
 full. Charge $1805.06 to Ranche. Thos. 
 Beynon, Superintendent. To Under- 
 wood, Clark & Co., 15 West Mo. Ave., 
 Kansas City, Mo. No. 15086." Held — 
 (i) The term " current funds" destroys 
 the negotiability of the paper (citing 
 Lindsay I). McClellan, 18 Wis. 508; Had- 
 dock V. Woods, 46 Iowa, 435). (2) The 
 instrument being given in full of an ac- 
 count for building and repairs for the 
 company, performed by the drawees, 
 and it being the mode adopted for pay- 
 ment of similar liabilities, created an ob- 
 ligation binding on the company. Texas, 
 etc., Co. v. Carroll, 63 Tex. 48. 
 
 The trustees of an association entered 
 into a contract ' ' as trustees of the B. 
 Company" and signed "as trustees." 
 Held, that it was the contract of the com- 
 pany. Cook V. Gray, 133 Mass. 106; 
 Goodenough v. Thayer, 132 Mass. 152. 
 
 A written contract, not under seal, 
 purporting to be made by A, was signed 
 " A, agent," A was in fact contracting 
 for his wife, and the plaintiff knew( it. 
 Held, that the plaintiff might recover 
 against the wife. Byington v. Simpson, 
 134 Mass. 169; s. c, 45 Am. Rep. 314. 
 
 A contract saying, " If the Marsh har- 
 vester don't work to his satisfaction, he, 
 W. Thom, can return the machine to 
 me, and I will return his notes for the 
 same. A. M. Schnell, agent," held, to 
 bind the principal. Deering v. Thom, 
 29 Minn. 120. 
 
 An insurer's written assent to an as- 
 signment of the policy is properly signed 
 by D. & Son, " Agents," who are author- 
 ized sub-agents for that purpose, al- 
 though their sub-agency does not appear 
 in the writing. Chauncey v. German 
 Am. Ins. Co., 60 N. H. 428. 
 
 Where a contract was signed by the de- 
 fendants as township trustees, but in the 
 body of the instrument the obligation 
 purported to be a personal one, and the 
 contract was such as the township could 
 not legally make, held, that the signers 
 were bound in their individual capacity, 
 and not as trustees. Revolving Scraper 
 Co. V. Tuttle, 61 Iowa, 423; s. c, 47 
 Am. Rep. 816. 
 
 1. Wood V. Goodridge, 6 Cush. (Mass.) 
 117; Butteriield w. Beall, 3 Ind. 203. 
 
 2. Forsyth v. Day, 41 Me. 382; Hun- 
 
 393 
 
Sub-Agents, 
 
 AGENCY. 
 
 How Agent Liable for Acts or. 
 
 9. Sub-Agents. — Agent : How Liable for Acts of Sub-Agents. — 
 ,When an agent has authority to employ sub-agents,* he will not 
 be liable for the negligence or misconduct of his sub-agent ; he 
 will be liable, however, for negligence or fraud in the appoint- 
 rnent.® 
 
 ter V. Giddings, 97 Mass. 41; Devinney w. 
 Reynolds,, i Watts & S. (Pa.) 328. And 
 see Squire v. Norris, I Lans. (N. Y.) 
 282; Webster v. Brown, 2 S. Car. 428. 
 
 Where the agent signs in the presence 
 of and upon request of the principal it 
 will be sufficient if he simply signs the 
 principal's name. Gardner v. Gardner, 
 5 Cush. (Mass.) 483; Wood v. Good- 
 ridge, 6 Cush. (Mass.) 117; Burns v. 
 Lynde, 6 Allen (Mass.), 305; Frost v. 
 Deering, 21 Me. 156; Mackay v. Blood- 
 good, g Johns. (N. Y.) 285; Kime v. 
 Brooks, 9 Ired. (N. Car.) 219. And see 
 "Weaver v. Carnall, 35 Ark. 198; s. c, 
 37 Am. Rep. 22. 
 
 1. See page 364. 
 
 2. Louisville, etc., R. Co. v. Blair, 4 
 Baxt. (Tenn.) 407; Johnson v. Memphis, 
 g Lea (Tenn.), 125; Campbell v. Reeves, 
 3 Head. (Tenn.) 226; California Bank v. 
 Western U. Tel. Co., 52 Cal. 280; Porter 
 V. Peckham, 44 Cal. 204; Laverty ?/. 
 Snethen, 68 N. Y. 522; Foster ji. Preston, 
 8 Cowen (N. Y.), 198; Smedes v. Utica 
 Bank, 20 Johns. (N. Y.) 372; Watson v. 
 Mijirhead, 57 Pa. St. 161; Pownall v. 
 Bair, 78 Pa. St. 403; Whitlock v. Hicks, 
 74 111. 460; McCants v. Wells, 4 S. 
 Car. 381; Williamsburg Fire Ins. Co. 
 V. Frothingham, 122 Mass. 391; Darling 
 V. Stanwood, 14 Allen (Mass.), 504; 
 Buckland v. Conway, 16 Mass. 3g6; War- 
 ren Bank v. Suffolk Bank, 10 Cush. 
 (Mass.) 582; Fabens v. Mercantile Bank, 
 23 Pick. (Mass.) 330; Dorchester, etc., 
 Bank v. New Engl. Bank, i Cush. 
 (Mass.) 177; University of Mich. v. Rose, 
 45 Mich. 284; Bath v. Caton, 37 Mich. 
 
 '199; Com. Bank of New Orleans v. Mar- 
 tin, I La. Ann. 344; Taber v. Perrott, -i. 
 Gall (U. S.), 565; Kent v. Dawson Bank, 
 13 Blatch. (U. S.) 237. Compare Brom- 
 ley V. Coxwell, 2 Bos. & Pull. 428. 
 
 Where a sub-agent is employed by an 
 agent to receive money for the principal, 
 the principal may treat the sub-agent as 
 his agent, and sue him for the money re- 
 ceived by him. Miller v. Farmers', etc., 
 Bank, 30 Md. 392; Wicks v. Hatch, 62 
 N. Y. 535; Strong v. Stewart, 9 Heisk 
 (Tenn.), 137 
 
 A sub-agent agreed, by written con- 
 tract, that notes taken by him on sales 
 made for the principal should be notes of 
 persons of well-known responsibility, and 
 that if the principal should find at any 
 
 time within six months after any settle- 
 ment that any notes taken and passed 
 upon at such settlement were doubtful or 
 worthless at the time of sale, he (the sub- 
 agent) would replace thern with cash or 
 good notes. Held, statements made by 
 the general agent at the time of a settle- 
 ment that certain notes were all right and 
 satisfactory would not relieve the sub- 
 agent from his liability to replace them if 
 within six ■ month's they were found to 
 have been worthless at the time of sale. 
 Nor would previous statements by the 
 general agent as to the responsibility of 
 the maker of the notes, upon which the 
 sub-agent claimed to have relied, and 
 therefore to have omitted further investi- 
 gation, estop the principal from insisting 
 upon the liability of the sub-agent. Os- 
 borne V. Rider, 62 Wis. 235. 
 
 Common carriers, however, are re- 
 sponsible for all negligence or miscon- 
 duct of the sub -agents they employ. 
 Bank of Ky. v. Adams Expr., 93 U. S. 
 174; Hooper w. Wells, 27 Cal. 11; Christ- 
 enson v. Am. Expr. Co., 15 Minn. 270. 
 
 See also Common Carriers. 
 
 An attorney employed by an agent for 
 his principal is the principal's attorney 
 and not the agent's. Porter v. Peckham, 
 44 Cal. 204. See also Attorneys. 
 
 Where an agent employed to collect a 
 claim employs an attorney by whose 
 misconduct it is lost, the agent is held 
 liable. Morgan v. Tener, 83 Pa. St. 305; 
 Krause v. Dorrance, 10 Pa. St. 462; 
 Bradstreet v. Everson, 72 Pa. St. 124; 
 Swett V. Southworth, 125 Mass. 417; 
 Dyas V. Hanson, 14 Mo. App. 363; Wey- 
 erhauser v. Dun, 100 N. Y. 150; Taber 
 V. Perrott, 2 Gall (U. S.), 565; Kent v. 
 Dawson Bank, 13 Blatch. (U. S.) 237. _ 
 
 In cases where the agent is responsible 
 for the negligent acts of his sub-agent 
 and has to pay damages to his principal, 
 he may recover from the sub-agent. 
 Pownall V. Bair, 78 Pa. St. 403. 
 
 If an agent undertakes ^o do the work 
 of his principal, and employs a sub-agent 
 to assist him, on his own account, he is 
 answerable to the principal for the wrong- 
 doing of the sub-agent, although the prin- 
 cipal has knowledge of the fact of the 
 employment of the sub-agent. Barnard 
 V, Coffin, 141 Mass. 37. 
 
 See Lindsays. Singer Mfg. Co., 4 Mo. 
 App. 570. ' 
 
 394 
 
Sub-Agents, 
 
 AGENCY. 
 
 Public Agents not Liable. 
 
 Public Agents not Liable. — Public officers are exempt from lia- 
 bility for the acts of persons employed under but not by them to 
 ;assist in the performance of their official duties, both on consider- 
 <itions of pnblic policy and on the ground that such persons are 
 acting, not as the private agents of their superiors, but as public 
 ■agents ; but where the subordinates are acting, not under a public 
 employment, but as the agents and servants of the officers indi- 
 vidually in the discharge of their duties, the exemption from Ha- 
 , bility ceases, and the doctrine of respondeat superior applies.^ 
 , . Sub-agents must Account to Immediate Principal. — The rule that 
 agents must account to their principals for all moneys received by 
 them for their principals applies to sub-agents. They are, however, 
 •exclusively accountable to their immediate principal, the agent.** 
 
 Look to him for Compensation. — The sub-agent can look for his 
 compensation only to his immediate employer.^ 
 
 1. Railroad & Banking Co. v. Lamp- 
 ley, 76 Ala. 357; Richmond v. Long, 17 
 Gratt. (Va.) 375; Sawyer ». Corse, 17 
 Gratt. (Va.) 230; Bailey v. Mayor of N. 
 Y.. 3 Hill(N. Y.), 531; Wigginsw. Hatha- 
 way, 6 Barb. (N.Y.) 632; Franklin v. Low, 
 I Johns. (N. Y.) 396; Seymour v. Van 
 Slyck, 8 Wend. (N. Y.) 403; Tracy v. 
 Cloyd, 10 W. Va. 19; Schroyer v. Lynch, 
 8 Watts (Pa.), 453; Conwell v. Voorhees, 
 13 Ohio, 523; Hutchins u. Brackett, 22 
 N. H. 252; McMillan v. Eastman, 4 Mass. 
 378; United States v. Kirkpatrick, g 
 Wheat. (U. S.) 720; Dunlop s). Monroe, 7 
 Cranch. (U. S.) 242. 
 
 Such sub-agents are personally liable 
 to third parties. Majftirell & Mcllvoy, 2 
 Bibb. (Ky.) 211; Ford v. Parker, 4 Ohio 
 St. 576; Dox V. Postmaster- Gen'l, i Pet. 
 (U. S.) 318. 
 
 They are not exempt, however, from 
 liability for the acts of their private 
 Agents and servants. So are a sheriff 
 and a collector of a port liable for the acts 
 •of their deputies. Mclntyre v. Trum- 
 bell, 7 Johns. (N. Y.) 35; Gorham v. 
 "Gale, 7 Cow. (N. Y.) 739: Bishop v. 
 Williamson, 11 Me. 495; Ogden v. Max- 
 ■well, 3 Blatchf. (U. S.) 319. Compare 
 Grimshaw v. Paul, 76 111. 164. 
 
 The contractor for carrying the mails, 
 ■and not the carrier employed by him, is 
 the public agent, if such contract con- 
 stitutes an agency; and as to his liability 
 for the acts and defaults of subordinates 
 employed in the transmission, the court 
 holds that they are liable for their acts as 
 those of private agents. Railroad & B. 
 Co. V. Lampley, 76 Ala. 357; Sawyer v. 
 Corse, 17 Gratt. (Va.) 230. Compare 
 Hutchins v. Brackett, 22 N. H. 252; Con- 
 well V. Voorhees, 13 Ohio, 523. 
 
 2. Reid v. Humber, 49 Ga. 207; Jack- 
 
 son Ins. Co. w. Partee, 9 Heisk. (Tenn.) 
 296; Stephens v. Badcock, 3 B. & Ad. 
 354- 
 
 But see Turner v. Turner, 36 Tex. 41, 
 where it was held that where an agent of 
 the guardian of a minor collected money 
 for his principal belonging to the minor, 
 he was liable not only as agent to his 
 principal, but also as trustee to the minor. 
 Compare Myler 'u. Fitzpatrick, 6 Madd. 
 360; Attorney-Gen'l f. Earl of Chester- 
 field, 18 Beav. 596. 
 
 3. Cleaves 4/. Stockwell, 33 Me. 341; 
 Hill V. Morris, 15 Mo. App. 322; Foster 
 V. Hoyt, 2 Johns. Cas. (N. Y.) 327; 
 Fearn v. Mayers, 53 Miss. 458. 
 
 The members of a band of musicians 
 must look for their pay to the leader who 
 made a contract to furnish the music for 
 a fair. He only can sue for a breach of 
 the contract. Corbett v. Schumaker, 83 
 111. 403. 
 
 Where the sub-agent has been ap- 
 pointed without authority, and his acts 
 are afterward ratified, he can recover no 
 compensation from the principal, but 
 must look to the agent. Roman v. Brook- 
 lyn Life Ins. Co., 7 Mo. App. 22; Grace 
 V. Am. Cent. Ins. Co., 16 Blatchf. (U. S.) 
 433. See Loomis v. Simpson, 13 Iowa, 
 532; Bissell V. Roden, 34 Miss. 63. And 
 compare Chamberlin v. CoUinson, 45 
 Iowa, 429. 
 
 Where, however, the understanding of 
 the parties is that the sub-agent should 
 look to the principal for his compensa- 
 tion, and the principal has either ex- 
 pressly or impliedly, as under a usage of 
 trade, consented to such employment, 
 the principal will be bound Cotton 
 States Life Ins. Co. w. Mallard, 57 Ga. 
 64; United States Life Ins. Co. v. Hess- 
 berg, 27 Ohio St. 393; Laussatt v. Lip- 
 
 395 
 
Duties of Principal as to Agent. A GENC Y. 
 
 Compensation of Agent; 
 
 10. Duties of Principal as to Agent. — Compensation of Agent. — Or- 
 dinarily an agent performing services for his principal is entitled 
 to a compensation therefor, unless he is a mere gratuitous agent 
 or mandatary. 1 
 
 Salary or Commission. — The compensation may consist of 'a 
 fixed sum for a specific, period of time (salary), which sum cannot 
 be increased by proof of extra work ; or of a sum varying with the 
 amount of the services rendered (commission).* 
 , A Del Credere Commission is an additional commission paid to an 
 agent who undertakes to guarantee to his principal the payment 
 of the debt due by the buyer.* 
 
 pincott, 6 S. & R. (Pa.) 386; Gray w. 
 Murray, 3 Johns. Ch. (N. Y.) 167. Com- 
 pare Lincoln v. Battelle, 6 Wend. (N. Y.) 
 
 475- 
 
 1. Story on Agency, § 324. 
 
 To entitle an agent to compensation 
 for his services, the relation of principal 
 and agent must exist. He must either 
 expressly or impliedly have been ap- 
 pointed. Services rendered as a mere 
 volunteer, without any employment ex- 
 press or implied, will give no right to 
 commissions. Hinds v. Henry, 36 N. 
 J. L. 328; Earp v. Cummins, 54 Pa. St. 
 394; Cookw. Welch, 9 Allen (Mass.), 350; 
 Montgomery v. Pickering, 116 Mass. 227; 
 Sussdorff V. Schmidt, 55 N. Y. 319; Keys 
 V. Johnson, 68 Pa. St. 42; Hill v. W\\- 
 liams, 6 Jones Eq. (N. Car.) 242; At- 
 water v. Lockwood, 39 Conn. 45 ; Glenn 
 V. Davidson, 37 Md. 365; Low v. Conn., 
 etc., R. Co.,' 46 N. H. 284. 
 
 If he acts as agent without authority, 
 and his acts are ratified, he is entitled to 
 compensation as if he had been duly 
 authorized. Wilson v. Dame, 58 N. H. 
 
 392- 
 
 The S. M. Co. employed D. as its 
 agent to take charge of its office^ and 
 business at L. The contract of employ- 
 ment, which was in writing, provided 
 that the company should place to the 
 credit of the L. office fifteen per cent of 
 the amount of money collected by the 
 agent thus employed on contracts made 
 by former agents. Held, that M. was 
 entitled to the per cent on such claims 
 ■collected by him. Singer Mfg. Co. v. 
 Doggett, 16 Neb. 609. 
 
 2. Wharton on Agency, § 322. 
 Where the compensation consists of 
 
 salary, custom may authorize extra allow- 
 ance for extra work. United States v. 
 MacDaniel, 7 Pet. (U. S.) i; United 
 States V. Fillebrown, 7 Pet. (U, S.) 28; 
 Perkins v. Hart, 11 Wheat. (U. S.) 237. 
 Compare Moreau v. Dumagene, 20 La. 
 Ann. 230; Decatur v. Vermillion, 77 111. 
 315- 
 
 Salary continues though no work hap- 
 pens to be completed; commissions, on 
 the other hand, are not due until the work 
 is complete. McGavock v. Woodlief, 20. 
 How. (U. S.) 221; Walker v. Tirrell, roi 
 Mass. 257; Bornstein v. Laus, 104 Mass. 
 214;' Newhall v. Pierce, 115 Mass. 457;: 
 Trundy v. Hartford Steam Co., 6 Rob. 
 (N. Y.) 312; Briggs v. Boyd, 56 N. Y. 
 289; Earp V. Cummins, 54 Pa. St. 394; 
 Keys V. Johnson, 68 Pa. St. 42; Tinges; 
 V. Moale, 25 Md. 480. 
 
 The agent is generally only entitled to- 
 commissions when his authority has been 
 duly executed; but where the agent has. 
 done his part of the transaction, and 
 through interference of the principal it is- 
 not completed, the agent will be entitled 
 to his commission. Gillespie v. Wilder, 
 99 Mass. 170; Newhall v. Pierce, 115. 
 Mass. 457; Chapin v. Bridges, n6 Mass. 
 105; Thomas v. Lincoln, 71 Ind. 41;. 
 Kock V. Emmerling, 22 How. (U. S.) 69;. 
 Briggs V. Boyd, 56 N. Y. 289; Wight v. 
 Wood, 85 N. Y. 402; Keys v. Johnson,. 
 68 Pa. St. 42 ; Phelan v. Gardner, 43 Cal. 
 306; Budd V. ZoUer, 52 Mo. 238; Lincola 
 V. McClatchie, 36 Conn. 136; Jones v. 
 Adler, 34 Md. 440; Winpenny v. French, 
 18 Ohio St. 469; Gillett v. Corum, 7 
 Kans. 156; Walton v. New Orleans, 23 
 La. Ann. 398; Stewart v. Mather, 32. 
 Wis. 344; Schmidt v. Baumann, 30 N. 
 Western Repr. (Minn.) 765; Arrington v. 
 Cary, 5 Baxt. (Tenn.) 609. 
 
 Where payment is made to a principal 
 in consequence of the efforts of a collect- 
 ing agent, the agent is entitled to his 
 commission. Saubert v. Conley, io> 
 Oreg. 488. 
 
 To entitle an agent to his commissions 
 he must be the procuring cause of the 
 consummation of the transaction. Attrill 
 V. Patterson, 58 Md. 226. 
 
 As to when commissions are earned by- 
 brokers, etc., see Brokers; Commission 
 Merchants. 
 
 3. Story on Agency, § 33; Holbrook 
 V. Wright, 24 Wend. (N. Y.) 169; s. c. 
 
 396 
 
Duties of Principal as to Agent, 
 
 AGENCY. 
 
 Compensation of Agentr 
 
 May be Fixed by Jury. — Where no agreement has been made in 
 regard to compensation, the amount may be fixed by a jury 
 according to the usage of trade ; or, in the absence of usage, on 
 the principle of quantum meruit?- 
 
 After Termination of Agency. — After the termination of the 
 agency no more commissions can be earned.* 
 
 No Compensation for Illegal Services. — An agent will not be 
 allowed to enforce compensation for services of an illegal charac- 
 ter ; as where they are against good morals, public policy, or law.* 
 
 Where Agent Unfaithful. — Where an agent is unfaithful to his 
 trust and abuses the confidence reposed in him by his principal, 
 or where he misconducts himself in the business of his agericy, he 
 may be deprived of commission and compensation.* Also where 
 
 35 Am. Dec. 607; Smock w. Brush, 62 
 Ind. 156, 176; Lewis v. Brehrae, 33 Md. 
 412. 
 
 An agent employed for a season to 
 sell agricultural machinery of the princi- 
 pal was required by his contract of 
 agency to sell to responsible parties only. 
 He was to have a stated commission only 
 upon sales to responsible parties. His 
 commission was to be paid proportion- 
 ately in cash and in notes taken for 
 property sold. Notes taken by the agent 
 for sales which, upon examination, should 
 prove to be doubtful were to be taken by 
 the agent as part of his commission, or 
 should be satisfactorily secured by him. 
 He was to make final settlement with the 
 principal after harvest. Upon the final 
 settlement the agent delivered to the 
 principal, without fraud, notes of an in- 
 solvent maker, taken in the course of the 
 agency. Held, the agent was entitled to 
 have his commission settled and paid at 
 the time of the stipulated final settlement, 
 and the principal must then determine 
 whether he would retain the notes sur- 
 rendered by the agent, or, if found of 
 doubtful value, put the agent to his elec- 
 tion to take them as part of his commis- 
 sion, or to secure them. Piano Mfg. Co. 
 V. Buxton, 30 N. Western Repr. (Minn.) 
 668. See also Commission Agents. 
 
 1. Briggs V. Boyd, 56 N. Y. 28g; Suy- 
 dam V. Bartle, 10 Paige (N. Y.), 94; 
 Sinclair v. Galland, 8 Daly (N. Y.), 508; 
 Ruckman v. Bergholz, 38 N. J. L. 531; 
 Glenn v. Salter, 50 Ga. 170; Mangum v. 
 Ball, 43 Miss. 288; Wood v. M'Cranie, 
 21 La. Ann. 557. See O'SuUivan v. 
 Roberts, 42 N. Y. Super. Ct. 282. 
 
 2. So where an insurance agent was to 
 receive a certain per cent on all renewals 
 it was held that after the termination of 
 the agency the agent was not entitled to 
 commissions on renewals of policies 
 procured by him while he was agent. 
 
 Spaulding v. New York Ins. Co., 61 Me. 
 ' 329. See also Insurance Agents. 
 
 An agent under a contract for selling 
 books informed his principal that he had 
 determined to sell out and give up the 
 business, and that if the principal wanted 
 it, to come or send. Held, that the prin- 
 cipal was justified in treating the. agency 
 as abandoned and in appointing another 
 agent, and that a sale of the list of sub- 
 scribers afterwards by the former agent 
 or an attempt on his part to release them 
 was invalid. Stoddart v. Key, 52 How. 
 Pr. (N. Y.) 137. 
 
 3. Trist V. Child, 21 Wall. (U. S.) 441; 
 Marshall v. Baliimore, etc., R. Co., 16 
 How. (U. S.) 314; Tool Co. V. Norris, 2 
 Wall. (U. S.) 45; Armstrong v. Toler, 
 II Wheat. (U. S.) 258; Blanchard v. 
 Russell, 13 Mass. i; Stebbins v. Leo- 
 wolf, 3 Cush. (Mass.) 137; Fuller v. 
 Dame, 18 Pick. (Mass.) 472; Paine v. 
 France, 26 Md. 46; Brua's App.. 55 Pa. 
 St. 294; Clippenger v. Hepbaugh, 5 W. 
 & S. (Pa.) 315; s. c, 40 Am. Dec. 519; 
 Hatzfield v. Gulden, 7 Watts (Pa.), 152; 
 s. c, 31 Am. Dec. 750; Rose v. Truax, 
 21 Barb. (N. Y.) 361; Gray v. Hook, 
 4 Comst. (N. Y.) 449; Dunham v. Dey, 
 13 Johns. (N. Y.) 40; Eddy v. Capron, 
 4 R. I. 395; s. c, 67 Am. Dec. 541; Mc- 
 Bratney v. Chandler, 22 Kans. 692. 
 
 But where he is simply employed to 
 bring the parties together, and takes no 
 part in the illegal transaction, he may re- 
 cover. Ormes v. Danchy, 45 N. Y. 
 Super. Ct. 85; Crane v. Whittemore, 4 
 Mo. App. 510. 
 
 4. Sea V. Carpenter, 16 Ohio, 412; 
 Vennum v. Gregory, 21 Iowa, 326; 
 Cleveland, etc., R. Co. v. Pattison. 15 
 Ind. 70; Porter v. Silvers, 35 Ind. 
 295; Fisher v. Dynes, 62 Ind. 348; 
 Sumner v. Reichfeniker, g Kans. 320; 
 Segar v. Parrish, 20 Gratt. (Va.) 672; 
 Brannan v. Strauss, 75 111. 234; Myers 
 
 397 
 
Duties of Principal as to Agent, 
 
 AGENCY. 
 
 Compensation of Agent, 
 
 he engages in trafisactions by which he acquires interests or em- 
 ployment adverse to the: interests of his principal ;i or fails to 
 
 •V. Walker, 31 111. 353; Henderson v. 
 Hydraulic Works, 9 Phil. (Pa.) 100. 
 
 Or where he violates his instructions. 
 Hoyt V. Shipherd, 70 111. 309; Jones v.. 
 Hoyt, 25 Conn. 374; Sawyer !<. May- 
 hew, 51 Me. 398. ' ' - ' 
 - Or where he executes his duties in 
 such a manner that his services are of 
 no use. Dodge v. Tileston, 12 Pick. 
 (Mass.) 328; Williatfis v. Littlefield, 12 
 Wend. (N. Y.) 362. 
 
 An agent employed to make a contract 
 in his own name for the purchase of 
 grain to be delivered at a future day 
 for his principal, and to whom his prin- 
 cipal has advanced the required margins 
 to protect him from loss, and who, after 
 receiving all the margins required, closes 
 out the deal and thereby sells at a loss, 
 in violation of his contract, will lose his 
 lien on the margins in his hands, and 
 his commissions; and the principal may, 
 under the common counts in assumspit, 
 recover of him all the margins so ad- 
 vanced by him to the agent. Larminie 
 w. Carley, 114 111. 196. - 
 
 On an issue as to the plaintiif 's right to 
 recover for services as general manager 
 of defendants' business in the carrying 
 on of a foundry and machine-shop, in 
 which damages are sought to be re- 
 couped for mismanagement and neglect 
 of duty on the part of the plaintiff, the 
 burden of proof to establish the defence 
 is upon the defendants, and the particu-' 
 lar acts of misconduct or omissions of 
 duty should be specifically pointed out, 
 so as to enable the plaintiff to meet the 
 same by direct proof. Evidence of the 
 reputation of the work done is not ad- 
 missible to establish such defence, as it 
 might arise from other causes not at- 
 tributable to the plaintiff. Schmidt v. 
 Pfau, 114 111. 495. 
 
 Mere errors of judgment on the part 
 of an agent while managing his princi- 
 pal's business, or omissions which do 
 not amount to misconduct or culpable 
 negligence, do not work a forfeiture of 
 the agent's right to compensation for ser- 
 vices. Rochester v. Levering, 104 Ind. 
 562. 
 
 Where an agent complains to his prin- 
 cipal about the terms of his agency and 
 seeks to acquire more favorable terms, 
 the utmost good faith is required of him 
 in such negotiations. Upon proof of 
 any misrepresentation the court will set 
 aside the new arrangement and decide 
 according to the original contract. Neil- 
 son V, Bowman, 2$ Gratt. (Va;) 732. 
 
 But where the principal sustains dam- 
 ages by the negligence of the agent he 
 may set off such damages against the 
 agent's commission. Kelly o. Smith, i 
 Blatch. (U. S.) 290; Storer v. Eaton, 50 
 Me. 219; Dodge v. Tiletson, 12 Pick. 
 (Mass.) 328; Savage v. Birckhead, 20 
 Pick. (Mass.) 167; Williams , v. Little- 
 field, 12 Wend. (N. Y.) 362; McEwen w.- 
 Kerfooti 37 III. 530; Lee v. Clements, 
 48 Ga. 128; Godman zi. Meixsel, <65'Ind. ' 
 32. 
 
 1, Audenried v. Betteley, ' 8" Allen 
 (Mass.), 302; Walker v. Osgood, 98 
 Mass. 348; Rice v. Wood, J13 Mass. 
 133; Follansbee v. O'Reilly, 135 Mass. 
 80; Parker v. Vose, 45 Me. 54; Jones v. 
 Hoyt, 25 Conn. 374; Bensley v. Moon, 
 7 111. App. 415; Myers v. Walker, 31 111. 
 353; Kerfootw. Hyman, 52 111. 512; Alex- 
 ander V. N. W. C. University, 57 Ind. 466; 
 Porter v. Silvers, 35* Ind. 295; Brown v. 
 Clayton, 12 Ga. 564; Sumner v. Reich- 
 eniker, 9 Kans. 320; Rosenthal v. Myers, 
 25 La. Ann. 463; Hunsaker v. Sturgis, 
 29 Cal. 142; Everhart v. Searle, 71 Pa. 
 St. 256; Scribner v. Collar, 40 Mich. 
 375; Finnerty v. Fritz, 5 Colo. 174; 
 Meyer v. Hanchett, 43 Wis. 246; Ca- 
 pener v. Hogan, 40 Ohio St. 203; 
 Adams Expr. Co. v. Trego, 35 Md. 47. 
 
 B employed A to find a purchaser for 
 land. C offered $135,000, but this was 
 refused, A stating the limit to be I140,- 
 000. C then agreed to buy at the latter 
 sum, with the understanding that A was 
 to offer B first $135,000 and then $137,- 
 500, and only to close when these two 
 offers had been rejected. Fearing, how- 
 ever, that the price might be advanced 
 if his name was mentioned, C had his 
 clerk sign the agreement of sale. 
 Held, that the concealment of (he agree- 
 ment and the efforts by the agent to in- 
 duce the owner to sell at a lower sum 
 showed such lack of good faith that the 
 agent was not entitled to commissions 
 from the vendor. Pratt v. Patterson, 
 3 Atl. Repr. (Pa.) 858. 
 
 During the jjendency of an action to 
 set aside a sale iriade on credit by plain- 
 tiff's agents to a corporation of which 
 they were the managing officers, the 
 agents, as such officers, sold the prop- 
 erty to a third party; subsequently plain- 
 tiff obtained judgment setting aside the 
 sale and directing the delivery of the 
 property to it. Held, that after perfect- 
 ing judgment therein, an assignor of the 
 plaintiff was entitled to bring an action 
 to recover the proceeds of the sale re- 
 
 398 
 
Snties of Frinoipal as to Agent. 
 
 AGENCY. 
 
 Compensation of Agent 
 
 render accounts as directed ;i or mixes his_ principal's property 
 with his own, so that it cannot be distinguished.** 
 
 When Agency Prematurely Ended. — Where an agency is prema- 
 turely terminated by the act of the principal, his right of recover- 
 ing compensation for the unexpired term of his agency depends 
 on the terms of the agreement.* 
 
 Agent to be Indemnified. — A rule of law which pervades the 
 whole law of principal and agent is that. the principal is bound to 
 indemnify the agent against the consequences of all acts done by 
 him in pursuance of the authority conferred upon him. Generally 
 it is the right of an agent to be reimbursed for all his advances, 
 expenses, and disbursements made, in the course of the agency, on 
 
 ceived by said agents from the corpora- 
 tion ; and that, as the sale was tortious, 
 defendants were not entitled to retain 
 commissions. Avila v. Lockwood, g8 
 N. Y. 32. 
 
 An agent cannot recover from either 
 principal unless both assented to his 
 double agency; Capener 'v. Hogan, 40 
 Ohio St. 203; Barry v. Schmidt, 57 Wis. 
 172; s. c, 46 Am. Rep. 35; Wright v. 
 Welch, 3 McArth. (D. C). 479; Bell v. 
 McConnell, 37 Ohio St. 396; s. c, 41 Am. 
 Rep. 528. 
 
 The policy of the law forbids that a 
 person acting as the friend and confiden- 
 tial adviser of a purchaser should at the 
 same time be secretly receiving compen- 
 sation from the seller for effecting the 
 sale, and a contract for such compensa- 
 tion is void. Bollraan v. Loomis, 41 
 Conn. 581. 
 
 1. Smith V. Grews, 2 Mo. App. 269. 
 Compare Sampson v. Somerset Iron 
 Works, 6 Gray (Mass.), 120; Jones v. 
 Hoyt, 25 Conn. 374; Gallup v. Merrill, 
 40 Vx.. 133. 
 
 2. Bartlett v. Hamilton, 46 Me. 435; 
 Farmers and Mechanics' Bank v. King, 
 57 Pa. St. 202; Cartmell v. AUard, 7 
 Bush (Ky.), 482; Pinckney v. Dunn, 2 
 Rich. (S. Car.) 314; Mass. Life Ins. Co. 
 V. Carpenter, 2 Sweeney (N. Y.), 734. 
 
 3. Evans on Ag. (Eweli's Ed.) 349; 
 Kirk V. Hartman, 63 Pa. St. 97. 
 
 In an action by an agent against an in- 
 surance company for damages resulting 
 from his discharge during the term of his 
 engagement, his measure of damages is 
 the amount he has lost in consequence, 
 and the testimony of actuaries as to the 
 probable value of renewals for the re- 
 mainder of his term on policies already 
 obtained is important in arriving at the 
 result. But an estimate of his probable 
 earnings thereafter, derived from proof 
 of the amount of his collections and com- 
 missions before the breach, without other 
 proof relating thereto, would be too spec- 
 
 ulative to be admissible. In such action 
 the defendant may show in mitigation of 
 the damages that the plaintiff was em- 
 ployed elsewhere after the breach, and 
 the amount of compensation received by 
 him while so engaged. Lewis v. Atlas 
 L. I. Co., 61 Mo. 534; ^tna Life Ins. 
 Co. V. Nexsen, 84 Ind. 347; s. c, 43 Am. 
 Rep. 91. See McCormick v. Bush, 47 
 •Tex. 191. 
 
 But in Orr v. Ward, 73 111. 318, it was 
 held that a principal, in making a con- 
 tract with a salesman that the latter 
 should for two years devote his whole 
 time to his employer's business at a 
 stated salary, did not agree to continue 
 in business for two years, and that when 
 he went into bankruptcy during the first 
 year the salesman could not recover sal- 
 ary for the unexpired term. 
 
 Defendant was a member of the firm of 
 S. & W. ; in 1854 he sold out his interest 
 to his copartners, and thereafter, as he 
 proposed going West to live, he received 
 certain shares of stock of a Western cor- 
 poration, which had belonged to the firm, 
 giving a receipt therefor which stated 
 that he had received it from the firm; 
 that he was to do the best he could with 
 the stock, and to ' ' have one half of the 
 proceeds." The stock at that time was 
 not considered of any market value. 
 Defendant retained the stock, as it was 
 increasing in value, and received divi- 
 dends thereon. In 1862 a demand was 
 made upon him for the stock and divi- 
 dends; and upon his refusal this action 
 was brought to recover the same. At 
 the time of this demand the stock was of 
 greater market value than at any other 
 time. No demand or request was made 
 that defendant should sell. Held, that 
 as no improper management or needless 
 delay in selling was shown, or any act 
 injurious to the interests of the owner, 
 defendant was entitled to retain one half 
 the stock and one half of the dividends 
 collected. Wight v. Wood, 85 N. Y. 402. 
 
 399 
 
Duties of Principal as to Agent. A GENC Y. 
 
 Agent to.be Indemnified. 
 
 account of or for the benefit of his principal, when the ad- 
 vances, expenses, and disbursements have been properly in- 
 curred, are reasonable and paid in good faith without any default 
 on the part of the agent. ^ 
 
 When, in obeying the orders of his principal, an agent commits- 
 acts which he does not know at the time to be illegal, the principal 
 is bound to indemnify him not only for expenses incurred, but also 
 for damages which he may be compelled to pay to third, parties.** 
 
 1. Ruffner v. Hewitt, 7 W. Va. 585; 
 Heard v. Russell, 59 Ga. 25; Beach v. 
 Branch, 57 Ga. 362; Glenn v. Salter, 50 
 Ga. 170; Searing v. Butler, 6g 111. 575; 
 Elliott V. Walker, i Rawle (Pa.), 126; 
 Maitland v. Martin, 86 Pa. St. 120; Fow- 
 ler V. N. Y. Gold Exch. Bank, 67 N. Y. 
 138; Robinson v. Norris, 51 How. Pr. 
 (N. Y.)442; Knapp v. Simon^ 86 N. Y. 
 311; Ramsey z'. Gardner, 11 Johns. (N. Y.) 
 439; Van Dyke w. Brown, 8 N. J. Eq. 
 655; White V. Nat. Bank, 102 U. S. 658; 
 Duncan w. Mobile, etc., R. Co., 3 Woods 
 (U. S.), 567. 
 
 Where a principal has no claim in a 
 suit brought by his agent, but where the 
 agent's right to continue his agency is 
 involved in it, the agent has no right to 
 expend the principal's money in litigat- 
 ing the question. Henley v. Clover, 6 
 Mo. App. 181. 
 
 Where one through his agent sells 
 goods to another, and they are shipped 
 to the purchaser, the agent has no 
 right to stop the goods in transitu be- 
 cause his principal owes him on account 
 of money advanced in the purchase of the 
 goods. Gwyn v. Richmond, etc., R. Co., 
 85 N. Car. 429; s. c, 39 Am. Rep. 708. 
 
 The expenses must have been incurred 
 according to his authority. So held 
 where an agent employed to subscribe 
 for stock in the principal's name bought 
 and paid for calls in his own name and 
 then tendered a transfer to the principal, 
 who refused to accept. He could not 
 recover. Shrack v. McKnight, 84 Pa. 
 St. 26. See Ranger u. Harwood, 39 
 Tex. 139. 
 
 The agent will not be entitled to reim- 
 bursements of expenses incurred in .doing 
 acts which he knew to be illegal, or 
 when from the nature of the employment 
 he must be taken to have been conscious 
 of the illegality of the act. Coventry v. 
 Barton, 17 Johns. (N. Y.) 142 ;s. c, 8 
 Am. Dec. 376; Atkins v. Johnson, 43 Vt. 
 78; Nelson v. Cook, 17 111. 443; Fareira 
 V. Gabell, 89 Pa. St. 8g; Arnold v. Clif- 
 ford, 2 Sumn. (U. S.) 238. Compare 
 Warren v, Hewitt, 45 Ga. 501. 
 
 Interest on such advances will be al- 
 lowed where the nature of the business 
 
 or the usage of trade or a direct agree- 
 ment justify it. Meech v. Smith, 7 
 Wend. (N. Y.) 314; Liotard v. Graves,, 
 3 Cai. (N. Y.) 226; Delaware Ins. Co. v. 
 Delaunie, 3 Binn (Pa.) 295 ; Whitlock v. 
 Hicks, 75 111. 460; Howard v. Smith, 56 
 Mo. 314; Strong v. Stewart, 9 Heisk. 
 (Tenn.) 137; Daniel v. Swift, 54 Ga. 113. 
 
 An agent authorized to draw upon his 
 employer for money becoming due ta 
 him for expenses can maintain an action 
 against his principal for maliciously re- 
 fusing to honor drafts so drawn. Levy 
 V. Curtis, I Abb. N. Cas. (N. Y.) 189. 
 
 2. Coventry ». Barton, 17 Johns. (N. 
 Y.) 142; s. c. , 8 Am. Dec. 376; Stone v. 
 Hooker, 9 Cow. (N. Y.) 154; Ramsey v. 
 Gardner, 11 Johns. (N. Y.) 439; Powell 
 V. Newburgh, 19 Johns. (N. Y.) 284- 
 Howe V. Buffalo, etc., R. Co., 37 N. Y. 
 297; Chamberlain u. Beller, 18 N. Y. 
 115; Rogers V. Kneeland, 10 Wend. (N. 
 Y.) 2i8; Allaire v. Onland, 2 Johns. Cas. 
 (N. Y.) 52; Armstrong v. Clarion Co., ,^ 
 66 Pa. St. 218; Spangler v. Com., 16 S. 
 & R. (Pa.) 68; s c, 16 Am. Dec. 548; 
 Com. V. Van Dyke, 57 Pa. St. 34; D'Arcy 
 V. Lyle, 5 Binn. (Pa.) 441; Elliott v. 
 Walker, i Rawle (Pa.), 126; Maitland v. 
 Martin, 86 Pa. St. 120; Avery v. Halsey, 
 14 Pick. (Mass.) 174; Greene v. Goddard, 
 9 Mete. (Mass.) 212; Bond v. Ward, 7 
 Mass. 123; Moore v. Appleton, 26 Ala. 
 633; Drummond v. Humphreys, 39 Me. 
 347; Tarr v. Northy, 17 Me. 113; How- 
 ard V. Clark, 43 Mo. 344; Yeatman v. 
 Cordcr, 38 Mo. 337; Nelson v. Cook, 17 
 111. 443; Long v. Neville, 36 Cal. 455; 
 Grace v. Mitchell, 31 Wis. 533; Stocking 
 V. Sage, I Day (Conn.), 519. 
 
 So where an agent sold cotton and was 
 obliged to refund the purchase-money to 
 the purchaser on account of false pack- 
 ing by the principal, he could recover 
 from the principal. Beach v. Branch, 
 57 Ga. 362. 
 
 And the agent may pay the damages to 
 the third party without waiting to be 
 sued, and maintain an action against the 
 principal for reimbursement. Saveland 
 w. Green, 36 Wis. 612. 
 
 As to the right of agents to liens on 
 the principal's property, see Liens. 
 
 400 
 
Agent's Liability 
 
 AGENCY. 
 
 to TMrd Parties. 
 
 11. liability of Agents to TMrd Parties. — A duly authorized agent 
 acting in behalf of his principal is not personally responsible on 
 the contract when the third party knows that he acts in the name 
 and in behalf of the principal. But whenever a party undertakes 
 to do an act as the agent of another, if he does not possess any 
 authority from the principal therefor, or if he exceeds the author- 
 ity delegated to him, he will be personally responsible therefor to 
 the person with whom he is dealing for or on account of his prin- 
 cipal. ^ 
 
 Whether such party acts fraudulently 
 or under a bona-fide belief that he has au- 
 thority, as he impliedly warrants his au- 
 thority, he may be sued on the implied 
 warranty for damages resulting from his 
 failure to bind his principal; or in dam- 
 ages for the loss occasioned by his fraud. 
 Noyes v. Loring, 55 Me. 408; Coit v. 
 Sheldon, i Tyler (Vt.), 301; Sheffield v. 
 Ladue, 16 Minn. 388; Johnson v. Smith, 
 21 Conn. 627; Long v. Colburn, 11 Mass. 
 97: Ballou V. Talbot, 16 Mass. 461 ; Smith 
 V. Bowditch, 7 Pick. (Mass.) 137; Jefts v. 
 York, 4 Cush. (Mass.) 371, 10 Cush. 
 (Mass.) 392; Bartlett v. Tucker, 104 Mass. 
 336; Noe V. Gregory, 7 Daly (N. Y.), 283; 
 Bartholomae v. Kaufimann, 47 N. Y. 
 Super. Ct. 552; White v. Madison. 26 N. 
 Y. 117; Baltzen v. Nicolay, 53 N. Y. 467: 
 Rossiter v. Rossiter, 8 Wend. (N. Y.) 
 494; s. c, 24 Am. Dec. 62; Mumikuy- 
 son V. Dorsett, 2 Har. & G. (Md.) 374; 
 Campbell v. Hillman, 15 B. Mon. (Ky.) 
 515; McCurdy v. Rogers, 21 Wis. 197; 
 Lauder v. Castro, 43 Cal. 497; Mahurin 
 V. Harding, 28 N. H. 12S; s. c, 59 Am. 
 Dec. 401. 
 
 But the bare want of authority in an 
 agent or trustee to bind the persons or 
 estates for which he assumes to be act- 
 ing does not render him individually lia- 
 ble, where the facts and circumstances 
 indicate that no such liability was in- 
 tended by either of the parties. Where 
 all the facts are known to both parties, 
 and the mistake is one of law as to the 
 liability of the principal, the fact that the 
 principal cannot be held is no ground for 
 charging the agent with liability. Mi- 
 chael V. Jones, 84 Mo. 578; Western Ce- 
 ment Co. V. Jones, 8 Mo. App. 373; 
 Humphrey v. Jones, 71 Mo. 62. 
 
 It must, however, be a contract on 
 which the principal could have been held 
 had the agent been authorized. Baltzen 
 V. Nicolay, 53 N. Y. 467; Dung v. Par- 
 ker, 52 N. Y. 494. 
 
 Where the agent originally had the au- 
 thority to make contracts for his princi- 
 pal, but his authority was revoked by the 
 death of the principal, unknown to the 
 agent, the agent will not be liable for con- 
 
 As to the right of agent to Stoppage in 
 transitu, see that title. 
 
 1. Story on Ag. § 264; Bonynge v. 
 Field, 81 N. Y. 159; Meech v. Smith, 7 
 "Wend. N. Y. 314; Am. Bank v. Whee- 
 lock, 82 N. Y. 118; Dusenbury v. Ellis, 
 3 Johns. Cas. (N. Y.) 70; McDougall v. 
 Travis, 24 Hun (N. Y.), 590; Palmer v. 
 Stephens, i Denio (N. Y.), 471; Buck v. 
 Amidore, 4 Daly (N. Y.). 27; Pitman v. 
 Kintner, 5 Blackf. (Ind.) 250; s. t., 33 
 Am. Dec. 469; Silliman v. Fredericks- 
 burg R. Co., 27 Gratt. (Va.) if9; Brazel- 
 ton V. Colyar, 58 Tenn. 34; Hawks v. 
 Locke, 139 Mass. 205; s. c, 52 Am. Rep. 
 702; Brainard v. Turner, 4 111. App. 61; 
 Ware v. Morgan, 67 Ala. 461; McCler- 
 man v. Hall. 33 Md. 293; Whitney v. 
 Wyman, loi U. S. 392; Worthington v. 
 Cowles, 112 Mass. 30. 
 
 Where in a chancery suit to require 
 money to be paid on a contract it appears 
 that one of the parties who signed the 
 contract had no interest in the subject, 
 but was acting as agent merely, and the 
 •other contracting party knew that he was 
 acting as agent for others, no personal 
 ■decree can be had against such person for 
 the repayment of moneys paid on such 
 contract. Smith v. Bond, 25 W. Va. 387. 
 
 Where a party discounts a note given 
 by the president of a bank, with the in- 
 dorsement of the bank thereon, suppos- 
 ing that he is dealing with and advancing 
 the money to the bank and not the pres- 
 ident personally, the bank will be held 
 liable for the payment of such note. Cen- 
 tral Trust Co. V. Cook Co. Nat. Bank, 15 
 Fed. Rep. 885. Compare Claflin v. Farm- 
 ers' Loan & Trust Co., 25 N. Y. 293. 
 
 A. obtained from B and others a lease 
 ■of certain coal lands at a certain royalty 
 per bushel of coal. This lease was, by 
 an amicable arrangement, subsequently 
 forfeited, and a lease made to C, a part- 
 nership of which A was agent. B and 
 -others knew of the existence of the part- 
 nership, and dealt with it. They after- 
 wards filed a bill against A for an ac- 
 count. Held, that having recognized C, 
 they could not recover from A. Reed's 
 App., 7 Art. Repr. (Pa.) 174. 
 
 401 
 
Agent's Lialjility to Third Parties. AGENCY. Agent Acting in his own Name. 
 
 Agent Acting in his own Name. — Where an agent in his dealings 
 with third parties does not disclose his principal, he will be person- 
 ally liable on the contract.* 
 
 tracts made by him in the name of his prin- 
 cipal after his death, but before tidings 
 of his death reached him. Smout v. II- 
 berry, lo Mees. & W. i; Rapp v. Phoe- 
 nix Ins. Co., 113 III. 390; Carriger v. 
 Whittingtcn, 26 Mo. 311. 
 
 Where the fact that the agent has no 
 authority was known or could be known 
 to a third party, the agent will not be re- 
 sponsible for any contracts so entered 
 into. Hall v. Lauderdale, 46 N. Y. 70; 
 Aspinwall v. Torrance, i Lans. (N. Y.) 
 381; Tiller w. Spradley, 39 Ga. 35; New- 
 man v. Sylvester, 42 Ind. 106; McCub- 
 bin V. Graham, 4 Kans. 397. 
 
 So held in the case of a public agent 
 whose authority is determined by a pub- 
 lic statute. The extent of his authority 
 is supposed to be known by the party 
 contracting with him. McCurdy v. Rog- 
 ers, 21 Wis. 197; Southworth v. Flanders, 
 33 La. Ann. 190. See also Authority 
 OF SPEcrAL Agents. 
 
 Although an unauthorized agent is lia- 
 ble to an action for damages on a con- 
 tract entered into without authority, he 
 is not liable on the contract itself. Bart- 
 lett V. Tucker, 104 Mass. 336; Northamp- 
 ton Bank v. Pepoon, 11 Mass. 292; Jefts 
 V. York, 4 Cush. (Mass.) 371, 10 Cush. 
 (Mass.) 392; Abbey v. Chase, 6 Cush. 
 (Mass.) 54; Draper v. Mass. Steam Heat. 
 Co., 5 Allen (Mass.), 338; Ogden v. Ray- 
 mond, 22 Conn. 379; s. c, 58 Am. Dec. 
 429; Taylor v. Shelton, 30 Conn. 122; 
 Baltzen v. Nicolay, 53 N. Y. 467; White 
 V. Madison, 26 N. Y. 117, 124; Hamp- 
 ton V. Specknagle, 9 S. & R. (Pa.) 212; 
 s. c, 11 Am, Dec. 704; Hopkins w. Me- 
 haffy, II S. & R. (Pa.) 126; Lazarus i/. 
 Shearer, 2 Ala. 718; Duncan v. Niles, 32 
 111. 532. Compare Grafton Bank v. Fland- 
 ers, 4 N. H. 239; Weare v. Gove, 44 N. 
 H. 196. 
 
 1. Baldwin v. Leonard, 39 Vt. 260; 
 Upton V. Gray, 2-Greenl. (Me.) 373; Keen 
 V. Sprague, 3 Greenl. (Me.) 77; Newman 
 V. Greef, loi N. Y. 663; Mauri v. Hef- 
 fermann, 13 Johns. (N. Y.) 58; Bjock- 
 way V. Allen, 17 Wend. (N. Y.)4o; Balt- 
 zen V. Nicolay, 53 N. Y. 467; Taintor v. 
 Prendergast, 3 Hill (N. Y.), 72; Corlies 
 V. Gumming, 6 Cow. (N. Y.) 181; Rath- 
 bon V. Budlong, 15 Johns. (N. Y.) i; 
 Waring w. Mason, 18 Wend. (N. Y.) 425; 
 Mills V. Hunt, 20 Wend. (N. Y.) 431; 
 Rushing?/. Sebree, 12 Bush (Ky.), 198; 
 James v. Bixby, 11 Mass. 34; French v. 
 Price, 24 Pick. (Mass.) 13; Raymond v. 
 
 Crown E. Mills, 2 Mete. (Mags.) 319; 
 Paige V. Stone, 10 Mete. (Mass.) i6o; 
 Southard v. Sturtevant, 109 Mass. 390; 
 Stackpole v. Arnold, 11 Mass. 27; Welch 
 V. Goodwin, 123 Mass. 71; Hydei/. Wolf, 
 4 Miller (La.), 234; Bedford v. Jacobs, 16 
 Martin (La.), 530; Sir6 v. Faures, 15 La. 
 Ann. iSg; Jones v. Ins. Co., 14 Conn. 
 501; Hall V. Bradbury, 40 Conn. 32; 
 Wolfley V. Rising, 8 Kans. 297; Einstein 
 V. Holt, 52 Mo. 340; McClellan v. Par- 
 ker, 27 Mo. 162; Meyer v. Barker, 6 
 Binn. (Pa.) 228; Parker v. Donaldson, 2 
 Watts. & S. (Pa.) g; Youghiogheny Ifon 
 Co. V. Smith, 66 Pa. St. 340; York Co. 
 Bank v. Stein, 24 Md. 447; Wheeler v. 
 Reed, 36 111. 81; Farrell v. Campbell, 3 
 Ben. (U. S.) 8; Tiernan v. Andrews, 4 
 Wash. (U. S.) 567; McGrau v. Godfrey, 
 14 Abb. Pr. (N. Y.) 397. 
 
 When one purchases property, orders 
 and accepts it, he binds himself, as a 
 matter of course, unless he discloses a 
 principal whom he can and does bind; 
 thus, the defendant bought powder of the 
 plaintiff to celebrate the Fourth of July, 
 and not binding the ' ' executive com- 
 mittee," his liability follows. Button -v. 
 Winslow, 53 Vt. 430. 
 . The effect of a contract by an agent in 
 which he does not disclose his principal 
 is not to exonerate the principal if dis- 
 covered. He merely adds his own per- 
 sonal responsibility to that of the princi- 
 pal, who may be sued by the party con- 
 tracting with the agent. Hopkins v. La- 
 couture, 4 La. 64; Hyde v. Wolf, 4 LaV 
 234; Beebe v. Robert, 12 Wend. (N. Y.) 
 413; s. c.,27 Am. Dec. 132; Mech. Bank 
 V. Bank of Columbia, 5 Wheat. (U. S.) 
 326; Jessup V. Steurer, 75 N. Y. 613. 
 
 The agent will be liable on a contract 
 entered into for an undisclosed principal 
 even if it is well known to the third party 
 that he acts only as agent, as in the case 
 of auctioneers and brokers. Winsor v. 
 Griggs, 5 Cush. (Mass.) 210; Cabot Bank 
 V. Morton, 4 Gray (Mass.), 156; Raymond 
 V. Crown E. Mills, 2 Mete. (Mass.) 319; 
 Wilder v. Cowles, 100 Mass. 487; Sum- 
 ner V. Williams, 8 Mass. 162; Falken- 
 burg V. Clark, 11 R. I. 278; Keen v. 
 Sprague, 3 Greenl. (Me.) 77; Scott v. 
 Mesick, 4 T. B. Mon. (Ky.)>535: Wilkins 
 V. Duncan, 2 Litt. (Ky.) 168; Cunning- 
 ham V. Soules, 7 Wend. (N. Y.) 106: 
 Beebe v. Robert, 12 Wend. (N. Y.) 413; 
 s. c, 27 Am. Dec. 132; Mauri v. Heffer- 
 man, 13 Johns. (N. Y.) 58; Canal Bank 
 
 402 
 
Agent's LiabiUty to Third Parties. AGENCY. 
 
 Pledging his own Credit. 
 
 Ptedging his own Credit. — Where an agent pledges his own 
 credit either expressly or impliedly, he will be bound himself.^ 
 
 Although in simple contracts, made by a third party on the 
 credit of the agent, parol evidence on the part of such third party 
 is admissible that the agent acted in behalf of the principal in 
 order to bind the principal, such evidence is not admissible on the 
 part of the agent.* 
 
 V. Bank of Albany, i Hill (N. Y.), 287; 
 Taintor v. Prendergast, 3 Hill (N. Y.), 
 72; Allen -6/. Rostain, 11 S. & R. (Pa.) 
 362; Bacon v. Sondley, 3 Strobh. (S. Car.) 
 542; Merrill v. Wilson, 6 Ind. 426; Royce 
 V. Allen, 28 Vt, 234. 
 
 And it does not matter whether the 
 third party has the means to discover the 
 principal or not. Cobb v. Knapp, 71 N. 
 Y. 348. Baldwin v. Leonard, 39 Vt. 260 ; 
 Nixon V. Downey, 49 Iowa, 166. Compare 
 Wright V. Cabot, 89 N. Y. 570. 
 
 In an action against R. for goods sold 
 and delivered, it appeared that R. was a 
 clerk in a shop, the business of which was 
 carried on by another person in the name 
 of R. & Company, which name appeared 
 pn the sign over the shop door; that the 
 seller made the bargain for the sale of the 
 goods with R. , supposing him to be the 
 principal; and that R. did not disclose 
 the fact that he was only an agent. Held, 
 that these facts would warrant a finding 
 for the plaintiff. Bartlett v. Raymond, 
 139 Mass. 275. 
 
 Where a party contracts as "agent" 
 without disclosing his principal, quare 
 whether it is not his personal undertaking 
 and to be so construed, although a jury 
 find that he contracted as agent and not 
 as principal. Stamps v. Cooley, 91 N. 
 C. 316. 
 
 Where a third party elects to sue an 
 undisclosed principal he must take the 
 account between the principal and the 
 agent as he findg it when he first dis- 
 covers the principal. If then the agent 
 has been paid in full, the creditor can 
 have no claim on the principal. Paine 
 V. Tillinghast, 52 Conn. 532, 538; McCul- 
 lough V. Thompson, 45 N. Y. Super. Ct. 
 449; Johnson v. Cleaves, 15 N. H. 332. 
 See Emerson v. Patch, 123 Mass. 541; 
 Armstrong v. Stokes, L. R. 7 Q. B. 598; 
 Thomson v. Davenport, 9 B. & C. 78. 
 Compare Irvine >. Watson, Q. B. Div. 27 
 W. R. 353. 
 
 2. Taintor v. Prendergast, 3 Hill (N. 
 Y.), 72; Maryland Coal Co. w. Edwards, 
 4 Hun (N. Y.), 432: Pentz v. Stanton, 10 
 Wend. (N. Y.) 271; s. u., 25 Am. Dec. 
 558; Fellows V. Northnip, 39 N. Y. 117; 
 Goodwin v. Bowden, 54 Me. 424; Bell v. 
 Mason, 10 Vt. 509; Savage v. Rix, 9 N. 
 
 403 
 
 H. 263; Despatch Line v. Bellamy Mfg. 
 Co., 12 N. H. 205; s. c, 37 Am. Dec. 203; 
 Towle V. Hatch, 43 N. H. 270; Silver v. 
 Jordan, 136 Mass. 319; Simondsz-. Heard, 
 23 Pick. (Mass.) 120; Ballou v. Talbot, 
 16 Mass. 461; Bridge v. Butler, 2 Gray 
 (Mass.), 130; Gay v. Bates, 99 Mass. 263; 
 Wilderiz/. Cowles, 100 Mass. 487; South- 
 ard V. Sturtevant, log Mass. 390; Evans 
 V. Dunbar, 117 Mass. 546; Strider v. 
 Winchester, etc., R. Co., 11 Gratt. (Va.) 
 440; Hovey v. Magill, 2 Conn. 680; 
 Reed v. Latham, 40 Conn. 452; Hall v. 
 Bradbury, 40 Conn. 32 ; Meyer v. Barker, 
 6 Binn. (Pa.) 228; Campbell v. Baker, 2 
 Watts (Pa.), 83; Harper w. Hampton, i 
 Harr. & J. (Md.) 622; York Co. Bank v. 
 Stein, 24 Md. 447; Deming v. Bullitt, i 
 Blackf. (Ind.) 241: Rosenthal v. Myers, 
 25 La. Ann. 463; McClellan v. Parker, 27 
 Mo. 162; McCurdy u. Rogers, 21 Wis. 
 197; Saveland v. Green, 36 Wis. 612; 
 Fisher v. Haggerty. 36 111. 128; .(Etna 
 Ins. Co. V. Church, 21 Ohio St. 492. See 
 Fleming v. Hill, 62 Ga. 751; Scoby v. 
 Woods, 59 Tenn. 66. 
 
 An agent may bind himself personally, 
 although the consideration move to his 
 principal, and the agent's want of inter- 
 est in the transaction, except as agent, 
 be known to the other contracting party. 
 Crum V. Boyd, 9 Ind. 289. 
 
 Where an agent selling goods for his 
 principal orally warrants their quality for 
 himself, and as agent procures the mak- 
 ing of a contract of purchase in writing, 
 containing a warranty of his principal, 
 the former warranty is not merged in the 
 latter, but is a separate contract, binding 
 the agent personally; and in an action on 
 one of the notes given in payment of the 
 articles sold, payable to the agent, evi- 
 dence of the oral warranty is admissible. 
 Shordan v. Kyler, 87 Ind. 38. 
 
 2. Bradleez;. Glass Co., 16 Pick. (Mass.) 
 347; Bank of North Am. v. Hooper, 5 
 Gray (Mass.), 567; James v. Bixby, 11 
 Mass. 34; Lauder v. Castro, 43 Cal. 497; 
 Jones V. Ins. Co., 14 Conn. 501; Wolfley 
 V. Rising, 12 Kans. 535. 
 
 The presumption is, however, that credit 
 is given to the principal where the agent 
 acted in his name. To hold the agent liable 
 there must be satisfactory proof that the 
 
Agent's Liabiliy to Third Parties. AGENCY. Public Officers — Foreign Principals. 
 
 Public Officers. — A public officer acting for his government and 
 within the scope of his authority is not personally liable on con- 
 tracts entered into with third parties. ^ 
 
 Foreign Principals. — It seems to be unsettled in how far and on 
 what grounds agents for foreign principals are responsible for con- 
 tracts entered into with third parties. Story in his work on 
 Agency states that " agents or factors acting for merchants resident 
 in a foreign country (as for example in France or Germany) are 
 held personally liable upon all contracts made by them for their 
 •employers ; and this without any distinction, whether they de- 
 •cribe themselves in the contract as agents or not. In such cases 
 the ordinary presumption is that credit is given to the agents or 
 factors; and not only that credit is given to the agents or factors, 
 but that it is exclusively given them to the exoneration of their 
 employers."* 
 
 -vendor sold upon the credit of the agent 
 
 .alone. Ferris v. Kilmer, 48 N. Y. 300, 
 ' 1. Lee V. Munroe, 7 Cranch. (U. S.) 
 
 366; Hodgson V. Dexter, i Cranch. (U. 
 
 S. C. C.) 109; Parks v. Ross, 11 How. (U. 
 
 S.) 362. Pierce v. U. S., i N. & H. (U. 
 S.) 270; Brown v. Austin, i Mass. 208; 
 s. c, 2 Am. Dec. 11; Simonds v. Heard, 
 
 •23 Pick. (Mass.) 120; Ogdenz/. Raymond, 
 22 Conn. 379; s. c, 58 Am. Dec. 429; 
 Rathbon v. Budlong, 15 Johns. (N. Y.)i; 
 Walker v. Swartwout, 12 Johns. (N. Y.) 
 
 .444; s. c, 7 Am. Dec. 334; Foxw. Drake, 
 8 Cow. (N. Y.) 191; Crowell v. Crispin, 
 4 Daly (N. Y.), 100; Yealy v. Fink, 43 
 Pa. St. 212; Baltimore v. Reynolds, 20 
 Md. 1 ; Enloe v. Hall, I Humph. (Tenn.) 
 
 ;303; Amison v. Ewing, 2 Cold. (Tenn.) 
 366; Houston V. Clay, 18 Ind. 396; 
 Mann v. Richardson, 66 111. 481; Tutt v. 
 Hobbs, 17 Mo. 4S6; Hodges v. Runyan, 
 30 Mo. 491; Dwindle v. Henriquez, i 
 
 - Cal. 379; Ghent v. Adams, 2 Kelly 
 
 <(Ga.), 214; Yulee w. Canova, 11 Fla. g. 
 
 -See also Municipal Corporations. 
 
 2. Story on Ag. § 268. This principle 
 seems not to meet with general approval. 
 Senator Verplanck in Kirkpatrick v. 
 Stainer, 22 Wend. (N.V.) 244, 259, uses 
 the following language: " I am satisfied 
 that Judge Story has stated the doctrine 
 in too strong and unqualified terms, as if 
 this presumption were a universal infer- 
 ence of law applicable everywhere. I 
 think, on the contrary, that this is a pre- 
 sumption founded altogether upon usage 
 and the particular course of trade, and 
 arises only when and where that usage is 
 known or proved to exist ; of course, then, 
 that it is not an unvarying legal presump- 
 tion to be applied to any contract, made 
 anywhere by a factor or agent represent- 
 ing a person or commercial house in some 
 
 ioreign country." And see the opinion of 
 
 Chanc. Walworth in the same case, p. 
 253, who upholds Story's doctrine. 
 
 The edifor of the ninth edition of 
 Story's work on Agency, in a note on page 
 326, gives as his opinion that "the true 
 rule seems to be that anagentof aforeign 
 principal is not as a matter of law per- 
 sonally liable on such contracts, but it is 
 a question of fact for the jury in each 
 case to be decided by the peculiar circum- 
 stances, whether he is liable on the par- 
 ticular contract in each case. This has 
 been so held in England. Green v. 
 Kopke, 18 C. B. 549; Wilson v. Zulueta, 
 14 Q. B. 603; Paice v. Walker, L. R. 5 
 Exch. 173; Armstrong v. Stokes, L. R. 7 
 Q. B. 603; Elbinger Co. v. Claye, L. R. 
 8 Q. B. 313; Hutton v. Bulloch, L. R. 8 
 Q. B. 331. And in this country, Oelricks 
 V. Ford, 23 How. (U. S.) 49; Rogers v. 
 March, 33 Me. 106; Goldsmith v. Man- 
 heim, 109 Mass. 187." 
 
 See also Wharton on Agency, | 791, 
 who says: " Where a foreign principal is 
 disclosed and there is evidence to indi- 
 cate that credit was given to the factor, 
 the usage is to treat the factor as person- 
 ally liable, and this usage is sanctioned 
 by law;" citing Houghton v. Matthews, 
 3 Bos. & P. 485; Thomson v. Daven- 
 port, 9 B. & Cress. 98; Wilson z/ Zulueta, 
 14 Q. B. 405: Gilletti;. Offor, 18 C. B. 
 917; Hutton V. Bulloch, L. R. 8 Q. B, 
 331; Kirkpatrick v. Stainer, 22 Wend. 
 (N. Y.) 244; Merrick's Est., 5 W. & S. 
 (Pa.) 9, 2 Ashmead, 485; Rogers v, 
 March, 33 Me. 106: Smyth v. Anderson, 
 7 C. B. 21; Paterson v. Gandasequi, 15 
 East. 62; Peterson v. Ayre, 13 C. B. 353; 
 De Gaillon v. L'Aigle, i Bos. & P. 358; 
 Addison v. Gandasequi, 4 Tauflt. 574; 
 Tiernan v. Andrews, 4 Wash. (U. S.) 
 567; Paley's Agency, 248; New Castle 
 Man. Co. v. Red River R. Co., i Rob- 
 
 404 
 
Agent's Liability to Third Parties. A GENC Y. 
 
 Mispaid Money. 
 
 Mispaid Money. — An agent to whom money has been mispaid 
 for the use of his principal is not personally liable to the person 
 who makes the payment, where he has paid over the money to 
 his principal without notice. But where he has received notice 
 not to pay it over, or where it is yet in his hands, he is responsi- 
 ble.! 
 
 ins (La.) 145, Miller v. Lea, 35 Md.' 
 
 396- 
 
 See also Bray v. Kettell, i Allen 
 (Mass.), .80; Xaintor v. Prendergast, 3 
 Hill (N, v.), 72; Barry v. Rage, 10 Gray 
 (MasSy), 398; McKenzie v. Nevins, 22 
 Me. 138; Mahoney z/. Kekuli, 14 C. B. 
 390: Price V. Walker, L. R. 5 Ex. 173; 
 Trueman v.' Loder, 11 Ad. & El. 589; 
 Kaulback v. Churchhill, 59 N. H. 296. 
 
 In regard to this principle parties re- 
 siding in different States of the Union are 
 not considered to be foreign to each 
 other. Barry v. Page, 10 Gray( Mass.), 
 398: Kirkpatrick v. Stainer, 22 Wend. 
 (N. Y) 244, per Walworth, Ch. ; Taintor v. 
 Prendergast, 3 Hill (N. Y ), 72; Sawter 
 V. Baker, 23 Ind. 63; Thomson z/. Daven- 
 port, 9 B. Cressw. 78. 
 
 1. Elliott V. Swartwout, 10 Pet. (U. S.) 
 137; Bend v. Hoyt, 13 Pet. (U. S.) 263; 
 Granger v. Hathaway, 17 Mich. 500; 
 Mowatt V. McLelan, i Wend. (N. Y.) 
 173; Bixby V. Drexel, 56 How. Pr. 
 (N. Y.)478; Carew w. Otis, i Johns. (N. 
 Y.) 418; Herrick v. Gallagher, 60 Barb. 
 (N. Y.) 566; Morrison v. Currie, 4 Duer 
 (N. Y.) 79; Duffy V. Buchanan, i Paige 
 (N. Y.) 453; Hearsey v. Pruyn, 7 Johns. 
 (N. Y.) 179; Galbraith v, Gaines, 10 
 Lea (Tenn.), 568; Metcalf v. Denson, 4 
 J. Baxter (Tenn.), 565; Dobson v. Jor- 
 dan, 125 Mass. 542; Smith v. Moore, 
 134 Mass. 405; Garland v. Salem Bank, 
 9 Mass.' 408; Jefts v. York, 12 Cush. 
 (Mass.) 196; McDonald v. Napier, 14 Ga. 
 89;Upchurchj'. Norsworthy, 15 Ala. 705; 
 O'Connor v. Clppton, 60 Miss. 349. 
 
 Neither will he be liable where, upon the 
 assumption that the payment was good, 
 he has done something equivalent to it 
 which has altered his situation. Her- 
 rick V. Gallagher, 60 Barb (N. Y.) 566; 
 La Farge v. Kneeland, 7 Cow. (N. Y.) 
 456 
 
 Where the mispayment has been made 
 under compulsion or extortion and not 
 expressly for the use of the principal, no 
 notice to the agent is necessary to make 
 him liable. Ripley v. Gelston, g Johns. 
 (N. Y.) 204; s. c, 6 Am. Dec. 271; Frye 
 V. Lockwood, 4 Cow. (N. Y.) 454. 
 
 An agent to whom the amount due on 
 a judgment is paid under notice that it 
 is the intention of the debtor to sue out 
 
 I C. of L. — 27 
 
 405 
 
 a writ of error is not liable if afterward 
 the judgment is reversed. This is not 
 such a notice which will make it unlaw- 
 ful for him to pay the amount over to 
 his principal. Bank of U. S. v. Bank of 
 Washington, 6 Pet. (U. S.) 8. 
 
 Where an agent b'eing a stakeholdef 
 receives a deposit, which he pays over 
 before the conditions upon which it is to- 
 be paid are fulfilled, he will be held per-- 
 sonally responsible. Carew v. Otis, I 
 Johns. (N. Y.)4i8; Edwards z/. Hodding,. 
 5 Taunt. 815. 
 
 An agent who retains money paid iii' 
 satisfaction of an illegal claim and pays 
 it over to his principal will be person- 
 ally liable unless the maxim in pari de- 
 licto applies. Wright v.^ Eaton, 7 Wis. 
 595; Edgerly v. Whalen, 106 Mass. 307; 
 Josselyn v. McAllister, 22 Mich. 300; 
 Richardson v. Kimball, 28 Me. 463; 
 Shepherd w, Underwood, 55 111. 475; La. 
 Farge v. Kneeland, 7 Cow. (N. Y.) 456;; 
 Herrick v. Gallagher, 5o Barb. (N. Y.)i 
 566; Mowatt V. McLelan, i Wend. (N. 
 Y.) 173; McDonald w. Napier, 14 Ga. 
 89; Seidell v. Peckworth, 10 S. & R. 
 (Pa.) 443. 
 
 An agent will not be responsible tff 
 the payor for money paid to him for the 
 use of his principal. He is bound to 
 pay it over to him and has no right to 
 return it to the person from whom he 
 received it. He cannot dispute the title 
 of his principal by setting up an adverse 
 title in a stranger. Hancock v. Gomez, 
 58 Barb. (N. Y.) 490; Murray v. Van- 
 derbilt, 39 Barb. (N. Y.) 140; Colvin v.. 
 Holbrook, 2 N. Y. 126. 
 
 A public agent who collects money 
 illegally and which is paid under pro- 
 test, will be held personally liable to the 
 payor; as where a U. S. collector col- 
 lects excessive duties, which are paid 
 under protest to get possession of the 
 goods, ■ with formal notice not to pay 
 over to the U. S. treasury, as measures 
 will be taken to recover the excessive 
 payment. But in such a case protest in 
 due form must precede the payment. 
 Elliott V. Swartwout, 10 Pet. (U. S.) 137; 
 Bend v. Hoyt, 13 Pet. (U. S.)263; Schles- 
 inger v. U. S., I N. & H. (U. S.) 16 j 
 Crocker w. Redfield, 4 Blatnhf. (U. S). 379; 
 Reimer v. Schell, 4 Blatchf. (U. S.> 
 
Agent's Liability to Third Parties. AGENCY. 
 
 Not Liable for Negligence. 
 
 Contract ' only Effective in Agent's Name. — An agent will be 
 personally liable on a contract where it is of such a character that 
 it can be made effective only by making the agent liable; unless 
 it clearly appears by the contract that he did not intend to be 
 bound. 1 
 
 Not Liable for Negligence. — An agent is in general not liable to 
 third parties for acts of negligence, nor for non-performance of duty. 
 As such he is only responsible to his principal, and the principal 
 to the third party.** 
 
 328; Beatty v. U. S. Dev. Ct. of CI. 231; 
 Greeley v. Thompson, 10 How. (U. S.) 
 225; Lawrence v. Caswell, 13 How. 
 (U. S.) 488. And see Fitzgerald v. Bur- 
 rell, 106 Mass. 446. 
 
 1. Edings V. Brown, i Rich. (S. Car.^ 
 255; Bank v. Wray, 4 Strobh. (S. Car.) 
 87; Hills V. Bannister, 8 Cow. (N. Y.) 
 31; Mann. v. Richardson, 66 111. 481; 
 Dunton v. Chamberlain, i 111. App. 361; 
 Tacher v. Dinsmore, 5 Mass. 299; Forster 
 V. Fuller, 6 Mass. 58; Sumner z'.Williams, 
 8 Mass. 162; Welch v. Goodwin, 123 
 Mass. 71; Murphy z). Lowell, 124 Mass. 
 564; Tassey v. Church, 4 W. & S. (Pa.) 
 14.1; s. c, 39 Am. Dec. 65; Cruse 0. 
 J.9nes, 3 Lea (Tenn.), 66; Blakely v. 
 Bennecke, 59 Mo. 193. 
 
 But agents of charitable, religious, or 
 political and kindred societies are as a 
 rule not responsible on contracts made 
 with third parties, when the third party 
 knows that they are acting for such so- 
 cieties ; unless it be distinctly understood 
 that such third party is dealing with the 
 agent on his personal credit. Devoss v. 
 Gray, 22 Ohio. St. 159; Tobey v. Claflin, 
 3 Sumner (U. S.), 379; Stevenson v. 
 Mathers, 67 111. 123; Ridgeley v. Dob- 
 son, 3 W. & S. (Pa.) 118 Eichbaum v. 
 Irons, 6 W. & S. (Pa.) 67-; s. c, 40 Am. 
 Dec. 540. 
 
 2. Reid v. Humber, 49 Ga. 207; Col- 
 vin V. Holbrook, 2 N. Y. 126; Montgom- 
 ery Bank v. Albany Bank, 7 N. Y. 459; 
 Denny v. Manhattan Co. , 2 Denio (N. Y.), 
 115; s. c, 5 Denio (N. Y.), 639; Phinney 
 V. Phinney, 17 How. Pr. (N. Y.) 197; 
 Hall V. Lauderdale, 46 N. Y. 70; Foot 
 z/. Wiswall, 14 Johns. (N. Y.) 304; Town- 
 send V. Susquehanna, ' etc., R., 6 Johns. 
 (N. Y.) 90; Guernsey w. Cook, 117 Mass. 
 548; Brown Paper Co. v. Dean, 123 
 Mass., 267; Savage v. Birckhead, 20 Pick. 
 <Mass.) 167; Salem Bank ■v. Gloucester 
 Bank, 17 Mass i; Henshaw v. Noble, 7 
 Ohio St. 231; Dayton v. Pease, 4 Ohio 
 St. 80; Goodloe V. Cincinnati, 4 Ohio 
 50P; s. c, 22 Am. Dec. 764; Stephens v. 
 Bacon, 7 N. J. L. i; Delaney v. Roche- 
 reau, 34 La. Ann. 1123; s. c, 44 Am. Rep. 
 456; Rabassa f. Orleans Nav. Co., 5 
 
 Miller (La.) 463; Labadie v. Hawley, 61 
 Tex. 177; s. c, 48 Am. Rep. 278; Lyon 
 V. Tevis, 8 Iowa, 79; Ayres v. Wright, 8 
 Ired. Eq. (N. Car.) 229; United States v. 
 Halberstadt, i Gilp. (U. S.) 262; Brad- 
 ford V. Eastburn, 2 Wash. (U. S.) 219; 
 Carey J/. Rochereau, 16 Fed. Repr. 87. 
 
 An agent is liable to no one except his 
 principal for damage resulting from an 
 omission or neglect of duty in respect to 
 the business of his agency, even though 
 such omission be with a malicious intent 
 to injure a third person and have that 
 effect. Upon this principle, an agent in 
 charge of a plantation is not liable to the 
 owner of an adjoining plantation for dam- 
 age resulting from the malicious neglect 
 and refusal of the agent to keep open a 
 drain which it was his duty, as such 
 agent, to keep open. Feltus v. Swan, 62 
 Miss. 415. 
 
 The plaintiff contracted with the de- 
 fendant to keep some portion of its high- 
 ways in "good repair for public travel " 
 for four years; and also, in the same 
 contract, agreed to build a new bridge 
 and road. The plaintiff failed to build 
 ' the bridge and road according to the con- 
 tract; and, also, to keep the highways in 
 good repair; and the defendant was com- 
 pelled to pay damages caused by the in- 
 sufficiency of said highways; and, also, 
 pay for repairing them. Held, that what 
 the defendant paid to settle a suit brought 
 against it for injuries received on the 
 highway, and the incidental expenses of 
 the suit; also, for injuries rdceived' by an- 
 other party without suit; 'also, for repair- 
 ing the highway; and the damage for not 
 completing the new road and bridge, are 
 available in defence. under the general 
 issue. Wilson v. Greensboro, 54 Vt. 533. 
 
 This refers only to acts done within 
 the scope of the agent's business. For 
 negligence in duties devolving on him in 
 his individual character he will be per- 
 sonally liable. Phelps v. Wait, 30 N. 
 Y. 78; Wright V. Wilcox, 19 Wend. (N. 
 Y.) 343; s. c, 32 Am. Dec. 507; Mont- 
 fort V. Hughs, 3 E. D. Smith (N. Y.), 
 591. See also Corporations; Master 
 AND Servant. 
 
 406 
 
Agent's Liability to Third Parties. AGENCY. Misfeasance— Full Control— Fraud. 
 
 Liable for Misfeasance. — But he is personally liable to third 
 parties for misfeasance; for doing something which he ought not 
 to have done.* 
 
 Liable when in Full Control. — ^Wherc a principal engages an agent 
 to do a certain work and to take entire control over it, while the 
 principal does not interfere, but leaves it entirely with the agent, 
 the agent and not the principal will be liable" to third parties for 
 injuries or damages sustained by the negligence or unskilful 
 manner in which the work is done.'-* 
 
 Liable for Fraud and Ma lice. ^Agents are always personally 
 liable to injured third parties for fraudulent or malicious acts done 
 in their principal's service, or for wilful deceit.* 
 
 Am. Dec. 6i; Brown v. Lent, 20 Vt. 529; 
 Burke v. Norwich, etc., Railroad, 34 
 Conn. 474; Salmon v. Richardson, 30 
 Conn. 360; s. c, 79 Am. Dec. 255; De 
 Forest z/. Wright, 2 Mich. 368; Clark v. 
 Craig, 2g Mich. 398; Darmstaetter j/. • 
 Moynahan, 27 Mich. 188; United Society 
 of Shakers v. Underwood, g Bush (Ky.), 
 6og; Cincinnati v. Stone, 5 Ohio St. 38; 
 Hughes V. Cincinnati, etc., R. Co., 39 
 Ohio St. 461; Conant v. Bank, i Ohio St. 
 310; Hodges 11. New Engl. Trust Co., i 
 R. I. 312; s. c, 53 Am. Dec. 624; Miller 
 V. Mechanics' Bank, 30 Md. 392; Mc- 
 Cants V. Wells, 3 S. Car. 569; Taber v. 
 Perrott, 2 Gall. (U. S.) 565; Holt v. 
 Whatley, 51 Ala. 569; Ardesco Oil Co. v. 
 Gilson, 63 Pa. St. 146. Compare Lowell 
 V. Boston, etc.; R. Co., 23 Pick. (Mass.) 
 24;. McGuire v. Grant, 24 N. J. L. 356; 
 Stone V. Cheshire R. Co., 19 N. H. 427; 
 B. c, 51 Am. Dec. 192. 
 
 The rule will be different where the 
 principal retains a general supervision of 
 the work and controls the manner in 
 which it should be done. Ardesco Oji 
 Co. a. Gilson, 63 Pa. St. 146; Painter v. 
 Mayor, 46 Pa. St 213; Luttrellw. Hazen, 
 3 Sneed (Tenn.), 20; Chicago v. Joney, 
 60 111. 383; Chicago V. Dermody, 61 111. 
 431- 
 
 A special receiver or assignee of the 
 property of a railroad company appointed 
 involuntarily on its part is not an agent 
 or servant of the corporation, and it is not 
 liable for damages occasioned by his neg- 
 ligence. Metz V. Buffalo, etc., R. Co., 
 58 Ni Y. 61. 
 
 3. Hardrop v. Gallagher, 2 E. D. 
 Smith (N. Y.), 523; Brown v. Howard, 
 14 Johns. (N. Y.) n8; People v. Johnson, 
 12 .Johns. (N. Y.) 292; Wright v. Wilcox, 
 19 Wend. (N. Y.) 343; s. c, 32 Am. Dec. 
 507; Ford V. Williams, 24 N. Y. 359; 
 Thorp V. Burling. 11 Johns. (N. Y.) 285; 
 Nussbaum v. Heilbron, 63 Ga. 312; Bur- 
 nap w,. Marsh, 13 111. 535; Johnson v. 
 Barber, 5 Gilm. (111.) 425; s. c, i Am. 
 
 1. Horner w. Lawrence, 37 N.J. L. 46; 
 Bell V. Josselyn, 3 Gray (Mass.), 309; 
 s. c, 63 Am. Dec. 741; Harriman v. 
 Stowe, 57 Mo. 93; Crane v. Onderdonk, 
 67 Barb. (N. Y.)47; Bliss v. Schaub, 48 
 Barb. (N. Y.) 339; Richardson v. Kim- 
 ball, 28 Me. 464; Elmore v. Brooks, 6 
 Heisk. (Tenn.) 45; Berghoff z/. McDon- 
 ald, 87 Ind. 54g; Roberts v. State, 7 
 Coldw. (Tenn.) 35g. 
 
 Where the owner of land had leased 
 the same to a tenant in possession for a 
 term not yet expired, and had authorized 
 his agent to sell the same subject to the 
 lease, and the agent, knowing of the 
 lease, represented to the plaintiff that he 
 had authority to sell and give immediate 
 possession of the land, and so nego- 
 tiated a sale to plaintifif, taking $200 from 
 him as a cash payment, held, that plain- 
 tiff, after learning of the lease, was not 
 bound to accept from the ageht a war- 
 ranty deed from the owner, but that he 
 might reject the deed and recover from 
 the agent the $200 paid him in the trans- 
 action. Maichen v. Clay, 62 Iowa, 452. 
 
 Public officers are liable to the same 
 extent as private agents for misfeasance. 
 Erwin v. Davenport, g Heisk. (Tenn.) 44. 
 
 2. Hilliard v. Richardson, 3 Gray 
 (Mass.), 34g; s. c, 63 Am. Dec. 743; 
 Linton v. Smith, 8 Gray (Mass.). 147; 
 Lowell V. Boston, etc., R. Co., 23 Pick. 
 (Mass.) 24; Forsyth v. Hooper, i Allen 
 ^Mass.), 4ig; Barry v. St. Louis, 17 Mo. 
 121; McCafferty v. Spuyten Duyvil, etc., 
 R. Co., 61 N. Y. 178; King v. N. Y., 
 etc., R. Co., 66 ISf. Y. i8i; Kelly v. 
 Mayor of N. Y., 11 N. Y. 432; Blake v. 
 Ferris, 5 N. Y. 48; o. c, 55 Am. Dec. 
 304; Bissell V. Torrey, 65 Barb. (N. Y.) 
 18S;. Foster v. Preston, 8 Cow. (N. Y.) 
 198; Hale V. Johnson, 80 111. 185; 
 Schwartz v. Gilmore, 45 111. 455; Scam- 
 mon V. Chicago, 25 111. 424; s. c, 79 Am. 
 Dec. 334; Pfau v. Williamson, 63 111. 16; 
 .Clark V. Vermont, etc., R. Co., 28 Vt. 
 103; Felton V. Peall, 22 Vt. 171; s. c, 54 
 
 407 
 
Agent's Liability to Third Parties. AGENCY. Agent's Bights as to Third Parties. 
 
 When in Control Liable for Torts of Employees. — Agents who 
 have taken control of a certain work for their principals, and have 
 engaged to finish it, are liable to third parties for torts committed 
 by those they employ.^ 
 
 12. Rights of Agents against Third Parties — Cannot Sue when Act- 
 ing in Principal's Name. — Ordinarily an agent contracting in the 
 name of his principal and not in his own name is not entitled to 
 sue; nor can he be sued on such contracts.* 
 
 Dec. 416; Knight v. Luce, 116 Mass 586; 
 Mclntyre v. Parks, 3 Mete. (Mass.) 207; 
 Blanchard v. Russell, 13 Mass. i; Mc- 
 Partland v. Read, 11 Allen (Mass.), 231; 
 Edgerly v. Whalen, 106 Mass. 307; Bell 
 V. Josselyn, 3 Gray, (Mass.), 309; s. c, 
 63 Am. Dec. 741 ; Ballou v. Talbott, 16 
 Mass. 461; Jefts v. York, 4 Cush. (Mass.) 
 371; s. c, 10. Cush. (Mass.) 392; Barllett 
 V. Tucker, 104 Mass. 336; Com. w. Whit- 
 comb, 107 Mass. 486; Com. v. Drew, ig 
 Pick. '(Mass.) 179; Wright v. Eaton, 7 
 Wis. 595; McCurdy v. Rogers, 21 Wis. 
 197; Campbell v. Hillman, 15 B. Mon. 
 (Ky.) 508; Josselyn v. McAllister, 22 
 Mich. 300; Repsher v. Wattson, 17 Pa. 
 St. 365; New York Tel. Co. v. Drvburg, 
 35 Pa. St. 298; s. c, 78 Am. Dec. 338; 
 Elmore v. Brooks, 6 Heisk. (Tenn.) 45; 
 Childress v. Ford, i Heisk. (Tenn.) 463; 
 Luttrell V. Hazen, 3 Sneed (Tenn.), 20; 
 Scruggs V. Davis, 5 Sneed (Term.), 261; 
 Gaines v. Briggs, 9 Ark. 46; Holt v. 
 Whatley, 51 Ala. 569; Perminterz'. K^lly, 
 18 Ala. 716; o. c, 54 Am. Dec. 177; 
 Richardson v. Kimball, 28 Me. 463; 
 Noyes v. Loring, 55 Me. 408; Lauder v. 
 Castro, 43 Cal. 497; Wallace v. Finberg, 
 46 Tex. 35. 
 
 If an agent of a trustee acts fraudu- 
 lently and collusively, he may himself be 
 treated as a trustee by construction, and 
 as such held accountable to the cestui que 
 trust. If he secures to himself any ben- 
 efit by a breach of trust, he will be re- 
 sponsible for the property to the party 
 entitled to the beneficial interest. If by 
 an abuse of his power as simple agent he 
 obtains possession of trust property, the 
 cestui que trust may proceed against him 
 as a trustee. Lehmann et al. v. Roth- 
 barth, m Ills. 185. 
 
 Where the principal receives and ac- 
 cepts a benefit acquired by the tort of his 
 agent, he will also be held liable. Hew- 
 ett V. Swift, 3 Allen (Mass.), 420; Bryant 
 z/. Rich, 106 Mass. 180; Atlantic Co. v. 
 Merchants' Co., 10 Gray (Mass.), 532; 
 Evansville v. Baum, 26 Ind. 70; Wallace 
 V. Morgan, 23 Ind. 399; Jeffrey v. Bige- 
 low, 13 Wend. (N. Y.) 518; s. c, 28 Am. 
 Dec. 476; Griswold v. Haven, 25 N. Y. 
 595;. Smith v. Tracy, 36 N. Y. 79; Durst 
 
 V. Burton, 47 N. Y. 167; Hunter v. Hud- 
 son River Iron Co., 20 Barb. (N. Y.)494; 
 Weed !<. Panama R. Co., 17 N. Y. 362;. 
 AUerton v. Allerton^ 50 N. Y. 670; Exum 
 V. Brister, 35 Miss. 391; Bank v. Bank 
 of the State, 13 Rich. (S. Car.) 291;. 
 Priester v. Angley, 5 Rich. (S. Car.) 44; 
 Woodward v. Webb, 65 ' Pa. St. 254;. 
 Reeves v. State Bank, 8 Ohio St. 465. 
 
 If a debtor pays money in fraud of the 
 insolvent law to an agent of his creditor, 
 the assignee may recover it of the agent, 
 although he has paid it to his principal,, 
 and no demand was made. Larkin v. 
 Hapgqod, 56 Vt. 597. 
 
 1. Chamberlain v. Chandler, 3 Mason^ 
 (U. S.), 242; Nieto V. Clark, i Cliff (U. S.), 
 145; Taber v. Parrott, 2 Gall. (U. S.) 565;, 
 Simmons v. Steamb. Co., 97 Mass. 361;. 
 s. c, 100 Mass. 34; Ramsden v. Railr., . 
 104 Mass. 117; Hilliard v. Richardson, 3. 
 Gray (Mass.), 349; s. c, 63 Am. Dec. 743;. 
 Bryant v. Rich, 106 Mass. 180; Com. v. 
 Power, 7 Mete. (Mass.) 596; Bell v. Jos- 
 selyn, 3 Gray (Mass.), 309; s. c, 63. 
 Am. Dec. 741; Bradstreet v. Everson, 
 72 Pa. St. 124; N;Y. Tel. Co. v. Dry- 
 burg, 35 Pa. St. 298; s. c, 78 Am. 
 Dec. 338; Bank of Ky. v. Schuylkill 
 Bank, i Pars. Eq. Cas. (Pa.) 180, 226;. 
 Clark V. Bank, 17 Pa. St. 322; Pittsburg, 
 etc., R. Co. V. Hinds, 53 Pa. St. 512;, 
 Goddard v. Railr., 57 Me. 202; Ray v. 
 Bank, 10 Bush (Ky.), 344; Shevley v. 
 Billings, 8 Bush(Ky.), 147; Baltimore R., 
 Co. V. Blocher, 27 Md. 277; Craker v. R. 
 Co., 36 Wis. 657; Day v. Owen, 5 Mich. 
 520; s.c, 72 Am. Dec 62; Blake j;. Ferris,. 
 5 N. Y.48; s.c, 55 Am. Dec. 304; Weed v. 
 Railr. Co., 17 N. Y. 362; New Orleans- 
 R. Co. V. Allbdtton, 38 Miss. 242; s. c, 
 75 Am. Dec. 98; Holt v. Whatley, 51 
 Ala. 569; Cincinnati v. Stone, 5 Ohio St. 
 38; Chicago V. Joney, 60 111. 383;, 
 Schwartz v. Gilmore, 45 111 455; Chi- 
 cago V. Dermody, 61 111. 431; Sewall v. 
 St. Paul, 20 Minn. 511. Compare Clapp v. 
 Kemp, 122 Mass. 481. See also Negli- 
 gence. Torts. For liabilities of ship- 
 masters, see Shipping. For liability in 
 tort of public officers for acts of their sub- 
 alterns, see Municipal Corporations. 
 
 2. Story on Ag. § 391; Gunn v. Can- 
 
 408 
 
Agent's Bights as to Third Parties. AGENCY, When Principal not Disclosed. 
 
 When Acting in his Own Name. — But where the agent acts in his 
 own name withput disclosing his principal, being personally liable 
 on the contract, it is evident that he can sue on it, although the 
 principal also may be sued if discovered.^ 
 
 Where an agent, although acting as agent, makes a contract in 
 his own name, and the contract shows on its face to have been 
 made personally with him, he will have a right to sue on it ; as 
 where a promissory note for the benefit of the principal is ex- 
 pressly made payable to the agent.** 
 
 When Doubtful. — Where it is not clear from the face of the 
 writing who the party is contracted with, the courts will gather 
 from the whole instrument the intention of the parties.' 
 
 tine, lo Johns. (N. Y.) 387; Oakey v. 
 Bend, 3 Edw. Ch. (N. Y.) 482; Taintor 
 7/. Prendergast, 3 Hill (N. Y.), 72; Kent 
 ■V. Bornstein, 12 Allen (Mass.), 34-2; East- 
 ern R. Co. V. Benedict, 5 Gray (Mass.), 
 561; Whitehead v. Potter, 4 Ired. L. (N. 
 Car.) 257; Jones v. Hart, i Hen. & Munf. 
 (Va.) 470. 
 
 1. Leeds v. Marine Ins. Co., 6 Wheat. 
 {U. S.) 565; Groover v. Warfield, 50 Ga. 
 644; Winchester v. Howard, 97 Mass. 
 303; Tyler v. Freeman, 3 Cush. (Mass.) 
 261; Huntington v. Knox, 7 Cush. (Mass.) 
 371 ; Willard v. Lugenbuhl, 24 La. Ann. i8 ; 
 Merriclc's Est., 2Ashra. (Pa.) 485; Hovey 
 V. Pitcher, 13 Miss, igi; Beebe v. Rob- 
 ert, 12 Wend. (N. Y.) 413; s. c, 27 Am. 
 Dec. 132; Pentz v. Stanton, 10 Wend. 
 (N. Y.) 271; s. c, 25 Am. Dec. 558; Ev- 
 ritt V. Bancroft, 22 Ohio St. 172; Wood- 
 stocic Bank v. Downer, 27 Vt. 482; s. c, 
 65 Am. Dec. 210; Saladin w. Mitchell, 45 
 111. 79; Culver V. Bigelow, 43 Vt. 249; 
 Chandler v. Coe, 54 N. H. 561; Brewster 
 V. Saul, 8 La. 296. 
 
 2. Commercial Bank v. French, 21 
 Pick. (Mass.) 486; Fairfield v. Adams, 16 
 Pick. (Mass.) 381; Fisher v. Ellis, 3 Pick. 
 (Mass.) 322; Buffumz/. Chadwick, 8 Mass. 
 
 .103; Van Staphorst v. Pearce, 4 Mass. 
 258; Norcross v. Pease, 5 Allen (Mass.), 
 331; Binney w. Plumley, 5 Vt. 500; s. c, 
 26 Am. Dec. 313; Johnson v. Catlin, 27 
 Vt 8g; s. c, 62 Am. Dec. 622-; Wheelock 
 ■V. Wheelock, 5 Vt. 433; Boardman v, 
 Roger, 17 Vt. 589; McHenry v. Ridgely, 
 2 Stam. (111.) 309; s. c. , 35 Am. Dec. 49; 
 McConnell v. Thomas, 2 Scam. (111.) 
 313; Porter v. Nekervis, 4 Rand. (Va.) 
 359; Doe V. Thompson, 2 Fost. (N. H.) 
 217; Lum V. Robertson, 6 Wall. (U. S.) 
 277; Orr V. Lacy, 4 McLean (U. S.), 243; 
 Bradford v. Bucknam, 12 Me.. 15; Bragg 
 V. Greenleaf , 14 Me. 395 ; Fish v. Jacob- 
 son, 2 Abb. App. Dec. (N. Y.) 132; 
 Hodge V. Comly, 2 Miles (Pa.) 286; 
 Sater v. Hendershott, i Morris (Iowa), 
 
 409 
 
 118; Barbee w. Williams, 4 Heisk. (Tenn.) 
 522; Cocke V. Dickens, 4 Yerg. (Tenn.) 
 2g; s. c, 26 Am. Dec. 214; Shepherd v. 
 Evans, 9 Ind. 260; Grist v. Backhouse, 
 4 Dev. & Bat. L. (N. Car.) 362; Jackson 
 V. Heath, i Bailey (S. Car.), 355; Moore 
 v: Penn, 5 Ala. 135; Groce v. Herndon, 
 2 Tex. 410. Compare Garland v. Rey- 
 nolds, 20 Me. 45; Irish v. Webster, 5 
 Greenl. (Me.) 171; Gunn v. Cantine, 10 
 Johns. (N. Y.) 387; Taintor v. Prender- 
 gast, 3 Hill (N. Y.), 72. 
 
 Or where a negotiable bill indorsed 
 in blank is delivered to an agent for col- 
 lection, he may sue on it in his own 
 name. Little v. O'Brien, 9 Mass. 423; 
 Brigham v. Mareau, 7 Pick. (Mass.) 40; 
 Banks v. Eastin, 15 Mart. (La.) 2gi; 
 Guernsey w. Burns; 25 Wend. (.N. Y.) 411; 
 Maurau v. Lamb, 7 Cow. (N. Y.) 174; 
 Coddington v. Bay, 5 Johns. Ch. (N. Y.) 
 54; s. c, 20 Johns. (N. Y.) 637; 11 Am. 
 Dec. 342; Ferguson v. Hamilton, 35 
 Barb. (N. Y.) 427; Welch v. Sage, 47 
 N. Y. 143; Hodge v. Comly, 2 Miles 
 (Pa.), 286; Pearce v. Austin, 4 Whart. 
 (Pa.) 489; s. c, 34 Am. Dec. 533; Phelan 
 V. Moss, 67 Pa. St. 59; Hamilton v. 
 Vought, 34 N. J. L. 187; McConnell v. 
 Thomas, 2 Scam. (111.) 313; Dugan v. 
 U. S., 3 Wheat. (U. S.) 172, 180; Murray 
 ■V. Lardner, 2 Wall. (U. S.) no. Compare 
 Thatcher v. Winslow, 5 Mason (U. S.), 
 58; Sherwood v. Roys, .14 Pick. (Mass.) 
 172. 
 
 Or where a policy of insurance is issued 
 in the name of the agent, but for the bene- 
 fit of his principal. Story on Ag. § 394. 
 Compare Finney v. Bedford Ins. Co., 8 
 Mete. (Mass.) 348; Spencer w. Field, 16 
 Wend. (N. Y.) 87. 
 
 3. Gilmore v. Pope, 5 Mass. 491 ; 
 Commercial Bank v. French, 21 Pick. 
 (Mass.) 486 ; Eastern R. Co. v. Bene- 
 dict, 5 Gray (Mass.), 561; Taunton, etc., 
 Turnpike Co. i/. Whiting, 10 Mass. 327; 
 Medway Cotton Man. v. Adams, 10 
 
Prineipal's Liability to Third Parties. A GENC Y. Liable for all Acts of Ageiite. 
 
 When Agent has an hiterest. — Where the agent has an interest 
 in the subject-matter of the agency, as where he has a lien on the 
 proceeds of a sale, he may sue on the contract whether he pro- 
 fessed to act in his own name or in the name of his principal. ^ 
 
 13. Liabilities of Principals to Third "izxtvi^.— Liable for all Acts of 
 Agent. — A principal is liable to third parties for whatever the agent 
 does or says ; whatever contracts, representations, or admissions 
 he makes ; whatever negligence he is guilty of, and whatever fraud 
 or wrong he commits ; provided the agent acts within the scope of 
 his apparent authority, and provided a liability would attach to 
 the principal if he was in the place of the agent.* 
 
 Mass. 360; Buffum v. Chadwick, 8 Mass. 
 103 ; Barney v. Newcomb, 9 Cush. 
 (Mass.) 46 ; Garland v. Reynolds, 20 
 Me. 45 ; Irish v. Webster, 5 Greenl. 
 (Me.) 171; Horah v. Long, 4 Dev. & B. 
 L. (N. Car.) 274; Grist v. Backhouse, 4 
 Dev. & B. L. (N. Car.) 362; Linn v. Hol- 
 land, 12 Mo. 127; Hinds v. Stone, Bray- 
 ton (Vt.), 230; Arlington v. Hinds, D. 
 Chipman (Vt.), 431; s. c, 12 Am. Dec. 
 704; Middlebury v. Case, 6 Vt. 165; Bank 
 V. Slason, 13 Vt. 334; Bank of U. S. v. 
 Lyman, 20 Vt. 6667 
 
 And in case of doubt give both prin- 
 cipal and agent a right to sue. Lum v. 
 Robertson, 6 Wall. (U. S.)277; Herndon 
 V. Taylor, 6 Ala. 461; Lewis v. Hodg- 
 don, 17 Me. 267; Rutland R. Co. v. Cole, 
 24 Vt. 33; Beebe v. Robert, 12 Wend. 
 (N. Y.)4i3;s. c, 27 Am. Dec. 132; Griffith 
 V. Ingleden. 6 S. & R. (Pa.) 429; s. c, g 
 Am. Dec. 444; Dupont v. Mt. Pleasant 
 Co., 9 Rich. (S. Car.) 255. 
 
 1. Whitehead v. Potter, 4 Ired. L. 
 (N. Car.) 357; Murray v. Toland, 3 
 Johns. Ch. (N. Y.) 569; Toland v. Mur- 
 ray, 18 Johns. (N. Y.) 24; Ladd v. Arkell, 
 5 Jones & Sp. (N. Y.) 35; Bogart v. 
 O'Regan, i E. D. Smith (N. Y.), 590; 
 Hulse V. Young, 16 Johns. (N. Y.) i; 
 Minturn v. Main, 7 N. Y. 220; Da For- 
 est V. Fulton Ins. Co., i Hall (N. Y.) 84; 
 White V. Chouteau, 10 Barb. (N. Y.) 202; 
 Bieecker v. Franklin, 2 E. D. Smith 
 (N. Y.), 93; Graham v. Duckwall, 8 Bush 
 (Ky.), 12; Evritt v. Bancroft, 22 Ohio St. 
 172; Beller v. Block, 19 Ark. 566; Girard 
 V. Taggart, 5 S. & R. (Pa.) 27; s. c, ig 
 Am. Dec. 327; Thompson v. Kelly, loi 
 Mass. 291. See also Factors; Auc- 
 tioneers. 
 
 Or where he is responsible to the prin- 
 cipal for the proceeds of sales as under a 
 del credere commission. Lum v. Robert- 
 son, 6 Wall. (U. S.) 277; Kent v. Born- 
 stein, 12 Allen (Mass.), 342; Hodge v. 
 Comly, 2 Miles (Pa.), 286; Whitehead v. 
 Potter, 4 Ired. (N. Car.) 257. 
 
 Where money has been paid by an 
 
 410 
 
 agent by mistake or withput authority. 
 Kent V. Bornstein, 12 Allen (Mass.), 342. 
 
 An agreement made by an agent en- 
 tirely on his principal's behalf, but wholly 
 for his own benefit, is without considera- 
 tion, and will not sustain an action by 
 the agent in his own name. Graham v. 
 Taggart, 44 Mich. 383. 
 
 Where an agent brings suit in his owa 
 name he is bound to disclose the name of 
 his principal. Willard v. Lugenbuhl, 24 
 La. Ann. 18. 
 
 3. N. Y. Life Ins. Co.' v. McGowan, 18 
 Kan. 300; Gifford v. Landrine, 37 N. J. 
 Eq. 127; Borcherling v. Katz, 37 N. J, 
 Eq. 150; Morton v. Scull, 23 Ark. 289; 
 Gasway v. Atlanta, etc., R. Co., 58 Ga, 
 216; City Bank of Macon v. Kent, 57 
 Ga. 283;, Forrester v. Georgia, 63 Ga. 
 349; Mass. Life Ins. Co. v. Eshelmann, 
 30 Ohio St. 647 ; Fatman v. Leet, 41 
 Ind. 133; Tagg v. Tennessee Nat. Bank, 
 9 Heisk. (Tenn.) 479; Planters' Ins. Co. 
 V. Sorrells, 57 Tenn. 352; Prickett v. 
 Madison Co., 14 111. App. 454; Noble v. 
 Cunningham, 74 111. 51 ; SacalarTs v. 
 Eureka, etc., R. Co., i Pac. Repr. (Nev.) 
 835; Bass V. C. & N. W. R. Co., 42 Wis. 
 654; Golding V. Merchant, 43 Ala. 705; 
 Swaine v. Maryatt, 28 N. J. Eq. 589; 
 Tripp V. New Metallic Packing Co., 137 
 Mass. 4g9; Caswell v. Cross, 120 Mass.,- 
 545; Bronson v. Coffin, n8 Mass. 156; 
 Fletcher v. Sibley, 124 Mass. 220; Lane 
 V. Boston, etc.. R. Co., 112 Mass. 455; 
 Tozier v. Crafts, 123 Mass. 480; Putnam 
 ■u. Home Ins. Co., 123 Mass. 324; Knight 
 V. Luce, 116 Mass. 586; Newman v. 
 British, etc., S. Co., 113 Mass. 362; Phila- 
 delphia, etc., R. Co, V. Weaver, 34 Md. 
 431; Lamm v. Port Deposit, etc. Assoc, 
 49 Md. 233; Knox V. Barnett, 18 Fla. 
 594; Slater v. Irwin, 38 Iowa, 261; Deer 
 Lodge Bank v. Hope Mining Co., 3 
 Montana, 146; s. c, 35 Am. Rep. 458; 
 Kerslake v. Schoonmaker, 3 Th. & C. 
 (N. Y.) 524; Marsh v. Gilbert, 4 Th. & 
 C. (N. Y.) 259; Armour w. Mich., etc., 
 Centr. R. Co., 65 N. Y. ili, Cosgrove 
 
Principars Liability to Third Parties. A GENC Y. 
 
 liable for all Acts of Agent. 
 
 V. Ogden, 49 N. Y. 255; Ritch v. Smith, 
 82 N. Y. 627; Morey v. Webb, 65 Barb. 
 (N. Y.) 22; Manning v. Keenan, 73 
 N. Y. 45; Meiggs v. Meiggs, 15 Hun 
 (N. Y.), 453; Gallup V. Lederer, i Hun 
 (N. Y.), 282; Engh V. Greenebaum, 4 Th. 
 & C. (N. Y.) 426; Tice v. Gallup, 5 Th. & 
 C. (N. Y.) 51 ; Skelton v. Manchester, 
 
 12 R. I. 326; Beecher w. Venn, 35 Mich. 
 466; SiUiman v. Fredericksburg, etc., R. 
 Co , 27 Gratt. (Va.) 179; Rice v. Groff- 
 man, 56 Mo. 434; Webster v. Wray; 24 
 N. W. Repr. (Neb.) 207 ; Eskridge v. 
 Farrar, 34 La. Ann. 709; Plummer v. 
 Buck, 16 Neb. 322; St. Louis, etc., 
 Packet Co. v. Parker, 59 III. 23; Dewar v. 
 Bank of Montreal, 3 N. Eastern Repr. 
 (111.) 746; Silverman v. Bullock, g3 111. 
 11; Union Mut. Ins. Co. v. Wilkinson, 
 
 13 Wall. (U. S.)222; Wider z/. Branch, 12 
 111. App. 358; Bronson v. Chappell, 12 
 Wall. (U. S.) 681; Dickraan v. Williams, 
 50 Miss. 500. 
 
 The scope of an agent's employment is 
 to be determined, not only from what the 
 principal may have told the agent to do, 
 but from what he knows, or in the exer- 
 cise of ordinary care and prudence ought 
 to know, the agent is doing in the trans- 
 action. Kingsley v. Fitts, 51 Vt. 414. 
 
 If a vendor sells goods to an agent for 
 his principal, and takes the promissory 
 note of the agent for the amount of the 
 purchase-price, this, without more, will 
 not operate as payment of the debt of the 
 principal; and on failure of payment by 
 the agent, the principal will be liable to 
 an action founded on the original con- 
 sideration. Keller v. Singleton, 69 Ga. 
 703. 
 
 When a person deals with an agent 
 within the scope of his known authority, 
 he may safely presume that he is dealing 
 with the principal, and the principal will 
 be bound by the contract, unless he 
 shows affirmatively that the person deal- 
 ing with the agent knew that the agent in 
 that instance was contracting for himself 
 alone. Brett v. Bassett, 63 Iowa, 340. 
 
 A. delivered a number of books to B. 
 & Co., auctioneers, for sale. C. , though 
 not a member of the firm of B. & Co., 
 was their agent in charge of the book de- 
 partment of their business. Part of the 
 books were sold, and the remainder held 
 for future disposition. At the instance 
 of C. these books were left on the prem- 
 ises of B; & Co. A. offered to have them 
 insured, but was deterred from this by 
 the allegations of C. that B. & Co. car- 
 ried sufficient insurance to cover all the 
 goods in the establishment, including 
 these books'. B. & Co. actually had at 
 this time two policies aggregating $12,- 
 
 500, and which, by their terms, were on 
 goods owned by B. & Co. and on those 
 held by them in trust or on consignment. 
 While A.'s books were thus in B. & Co.'s 
 store, the same was destroyed by fire, 
 with all its contents; and as the loss was 
 in excess of $12,500, this entire sum was 
 paid them by the companies. After the 
 fire B. & Co. offered A. $199. They 
 denied legal liability to pay him any in- 
 surance, but claimed that they were will- 
 ing to apportion it and give him this 
 sum. A. refused their offer, and brought 
 suit for the value of the books. Held, 
 that the policiesof insurance covered A.'s 
 books, and when B. & Co. received the 
 $12,500 they held it in trust and were 
 bound to account for its distribution. A. 
 was not obliged to show that after pay- 
 ing all other claims there was enough left 
 to cover his books; but it was B. & Co.'s- 
 duty to show, in detail, the application of 
 the fund. Upon their neglect to do this, 
 they were properly held accountable to 
 A. for the full amount of his loss. Thomas 
 V. Cummiskey, 108 Pa. St. 354. 
 
 Complainant gave to an agent written 
 authority "to assign, satisfy, or dis- 
 charge all mortgages made to him." 
 The agent, thereunder, assigned to the 
 defendant a mortgage of $10,000, declar- 
 ing that the assignment was for the bene- 
 fit of complainant. The agent applied 
 the $10,000 to his own use. Held, that 
 complainant was bound by the assign- 
 ment and the agent's concomitant dec- 
 larations; the defendant testifying that 
 he had no knowledge of the agent's fraud. 
 Chetwood v. Berrian, 39 N. J. Eq. 203. 
 
 Where a party, through a, third person, 
 procures another to sign a contract upon 
 consideration that the first will abandon 
 a threatened prosecution for -a. felony, 
 the acts of such third person are the acts 
 of the first, and the contract is void. 
 McCoy V. Green, 83 Mo. 626. 
 
 A small boy, finding a dynamite cart- 
 ridge in a common packing-box among 
 the saw-dust, proceeded to crack it on 
 a stone, and maimed himself for life. 
 The boy was rightfully on the premises, 
 and his father was at work hard by. 
 The packing-box was on the ground 
 under a rude shed, and was marked 
 " Powder," but neither the boy nor his 
 father could read. It had been left ex- 
 posed by the agent of the landlord. 
 Held, that an action would lie against the 
 landlord for the injury; and that neither 
 the child nor his father could be said to 
 be guilty of contributory negligence. 
 Powers V. Harlow, 53 Mich. 507. 
 
 If a principal holds out an agent as 
 possessing authority to control a shop or 
 
 411 
 
Principal's Liability to Third Parties. A GENC Y. Liable for all Acts of Agents. 
 
 place of business, and a third person acts 
 upon the faith of the appearances so 
 created, the principal may be bound by 
 the acts of such agent within the scope of 
 such ostensible authority, although, as 
 between the agent and his employer, no 
 such authority in fact existed. Over v. 
 SchifHing, 102 Ind. 191; Banks z/. Everest, 
 35 Kan. 687. 
 
 An agent's right to defend his princi- 
 pal's possession of premises is not af- 
 fected by what he has said in the latter's 
 absence about the latter's title, so long as 
 he did not speak as agent, and has given 
 no license to occupy the premises. Tay- 
 lor V. Adams, 58 Mich. 187. 
 
 Where a railroad company employs an 
 agent to detect, arrest, and ' prosecute 
 persons vfho unlawfully obstruct its track, 
 and the agent, acting in the scope of his 
 employment, arrests an innocent person, 
 the railroad company is liable therefor. 
 Evansville, etc., R. Co. v. McKee, 22 
 Am. & Eng. R. R. Cas. 366; s. c, 99 Ind. 
 
 519- 
 
 But where an agent of a railroad com- 
 pany having and exercising supervision 
 over the lands of the company and in 
 charge of such lands, making leases, col- 
 lecting rents and stumpage, and negoti- 
 ating sales of the lands, invokes the crim- 
 inal law by bringing a charge of grand 
 larceny against a party for spoliation of 
 the timber lands of the company, he is 
 not in so doing acting within the scope 
 of his agency or in the course of his em- 
 ployment, and the company is therefore 
 not to be held responsible for such actions 
 done maliciously by him. Pressley v. 
 Mobile, etc., R. Co., 15 Fed. Rep. 199. 
 
 Where a person acts as clerk or agent 
 of another in selling intoxicating liquors 
 for him, with his knowledge and consent, 
 in violation of law, the principal may be 
 prosecuted and punished for such unlaw- 
 ful sales by his clerk or agent; and in 
 such a case, where it is admitted that the 
 principal has no permit to sell intoxicat- 
 ing liquors, it is not necessary for the 
 State in the first instance, in order to 
 convict the principal, to show that his 
 ■clerk or agent had no permit, if the sales 
 were made by the clerk or agent for the 
 principal, in the ordinary line of his 
 duty. State v. Skinner, 34 Kans. 256', 
 Seaman v. Com., 21 Am. Law Reg. (Pa.) 
 ^245; State w. McGrath, 73 Mo. 181; State 
 V. Baker. 71 Mo. 475; Com. v. Gillespie, 
 7 S. & R. (Pa.) 469; s. c, 10 Am. Dec. 
 475 ; Forrester v. Georgia, 63 Ga. 349. 
 
 One who expressly sanctions a pay- 
 ment to another person as his agent, and 
 who knows that his debtor regards such 
 person as the person to whom payments 
 
 should be made, will be bound by sub- 
 sequent payments to such agent, Phillips 
 V. McGrath, 62 Wis. 124. 
 
 A subscription to the stock of an in- 
 corporated railroad company, procured 
 by the fraud of the company's ugent so- 
 liciting subscriptions, may be defeated 
 on the plea of fraud when the company 
 attempts to enforce it by suit. Mont- 
 gomery Southern R. Co. v. Matthews, 
 77 Ala. 357. 
 
 A depot agent in the employment of a 
 railroad company being notified by the 
 superintendent to report.for instructions 
 to the assistant superintendent, and, on 
 so reporting, being informed that the 
 latter desired to transfer him to another 
 station on the road, — the transfer being 
 made, and the depot agent afterwards 
 suing the railroad company for increased 
 compensation, as promised by the assist- 
 ant superintendent, — held, that the state- 
 ments and declarations of the assistant 
 superintendent, while negotiating for the 
 transfer, and up to the completion of the 
 contract, were competent evidence against 
 the railroad company. Ala. Gr. So. R. 
 Co. V. Hill. 76 Ala. 303. 
 
 Where the duly authorized agent of a 
 railroad company receives personal prop- 
 erty to be transported as baggage, the 
 railroad company must account for such 
 property as baggage, although in strict 
 language it might not be baggage. Chi- 
 cago, etc., R. Co. V. Conklin, 32 Kans. 
 55; Lake Shore, etc., R. Co. v. Foster, 
 104 Ind. 293. 
 
 Where a railway shipping-clerk, col- 
 luding with the consignor, issues a ficti- 
 tious bill of lading, the goods represented 
 by it not having been received, the rail- 
 way company is liable to an innocent 
 third person deceived thereby. As be- 
 tween a railway company and third per- 
 sons the true limit of a railway agent's 
 authority to bind his company is the ap- 
 parent authority with which he is in- 
 vested. Brooke v. New York, L. E. & 
 W. R. Co., 21 Am. & Eng. R. R. Cas. 64; 
 s. c, 108 Pa. St. 530; Sioux City, etc., 
 R. Co. 1,. First Nat. Bank, i Am. & Eng. 
 R. R Cas. 278; s. c, 10 Neb. 556; Armour 
 V. Mich. Cent. R. Co., 65 N. Y. in; 
 Wichita Sav, Bank v. Atchison, etc., R. 
 Co. 20 Kans. 519; St. Louis, etc., R. Co, 
 V. Larned. 6 Am. & Eng. R. R. Cas. 436; 
 s. c, 103 111. 239. 
 
 In an action against a raili'oad com- 
 pany, where it was in evidence that S., 
 the regular agent of the defendant at a 
 certain depot, lived three miles from the 
 depot and that T. lived at the depot for 
 two years prior to the. bringing of the 
 action and discharged the duties of agent 
 
 413 
 
Frincipal's Liability to Third Parties, A GENC Y. Liable for all Acts of Agent. 
 
 in receiving and forwarding freight, sell- 
 ing tickets, etc., all of which was done 
 in the name of S. and with the knowledge 
 and acquiescence of defendant; it was 
 held that T. was the agent of defendant, 
 and that, defendant was bound by any 
 act of his within the scope of the author- 
 ity impliedly given. Katzenstein v. R. 
 R. Co., 6 Am. & Eng. R. R. Cas. 464; s. 
 c, 84 N. Car. 688. Compare Williams w. 
 Wilmington, etc., R. Co., 93 N. Car. 42; 
 Robinson v. Memphis, 6 Am. & Eng. 
 R. R. Cas. 592; s. c, 9 Fed. Rep. 129. 
 
 A railroad corporation is liable for the 
 erroneous advice and directions given by 
 its agent in charge. S. & N. R. Co. v. 
 Huffman, 76 Ala. 492, and cases cited in 
 opinion. 
 
 Where the receiving clerk of a tele- 
 graph company, at the request or with 
 the consent of the sender, attempted to 
 correct a mistake in the message, and in 
 so doing made a mistake himself, held, 
 that the company was not liable, for the 
 correcting of the message was not within 
 the scope of the receiving clerk's author- 
 ity or duty and was not authorized by 
 the company. Western U. Tel. Co. v. 
 Foster, 64 Tex. 220. 
 
 Where a principal authorizes an agent 
 to effect an exchange of lands with a 
 third person, he is answerable for and is 
 bound by the acts and representations of 
 the agent, and the instrumentalities em- 
 ployed by him in accomplishing that end, 
 even though the agent is guilty of fraud 
 which the principal did not direct, and of 
 which he did not have knowledge. Wolfe 
 V. Pugh, loi Ind. 293. 
 
 If the owner of land deliver to his 
 agent a deed thereof, executed in blank 
 as to the grantee, with express or implied 
 authority to insert the name of a pur- 
 chaser and perfect the conveyance, and 
 if, with such authority, the agent make a 
 fraudulent use of the deed, as by insert- 
 ing the name of a grantee and delivering 
 it to him without consideration, for his 
 own benefit, such grantee can convey a 
 good title to an innocent purchaser. Gar- 
 land V. Wells, 15 Neb. 298. 
 
 G. authorized T. to make a loan for 
 him and take a mortgage to secure it in 
 G.'s name. T. took the mortgage and 
 put it on record, but did not inform G. 
 T. then sold the notes and mortgage to 
 the plaintiffs. G. afterwards, upon a. 
 representation made to him that the 
 mortgage debt was paid, gave a quitclaim 
 to the mortgagor; it being found that he 
 did it in good faith and in the belief that 
 the mortgage debt was paid. Held, that 
 the prior authority was sufficient to con- 
 stitute the acceptance by T. his accept- 
 
 ance, even though he was not informed 
 that the mortgage had been made. Lewis 
 V. Farrell, 51 Conn. 216. 
 
 Defendants owned a half-interest in 
 the business of a firm, one S. owning the 
 other half. Defendants, through the 
 fraudulent representations of S. as to the 
 assets and liabilities of the firm, induced 
 plaintiff to purchase their half interest, 
 paying a certain sum in cash and agree- 
 ing to pay the firm's indebtedness. The 
 assets being much less, and the liabilities 
 much more, than represented, held that 
 defendants were bound by the fraudulent 
 representations made by S. as their 
 agent whether authorized by them or not, 
 and that plaintiff was entitled to recover 
 what he had lost by reason of the fraud, 
 and to be relieved of all obligation to 
 perform the contract. Lindmeier v. 
 Monahan, 64 Iowa, 24; Hornish v. Peck, 
 53 Iowa, 157. 
 
 Where plaintiffs' agent, who was 
 authorized to take orders for wagons and 
 carriages and transmit them to plaintiffs, 
 took defendants' order, but defendants, 
 not being content with plaintiffs' printed 
 and published warranty, demanded a fur- 
 ther warranty, whereupon a warranty 
 was written out by the agent in duplicate, 
 one copy of which was left with the de- 
 fendants, and the other of which the 
 agent agreed to forward with the order 
 to his principals, for their acceptance or 
 rejection; and he sent the order, but 
 failed to send the warranty, and plaintiffs 
 forwarded the wagons and carriages 
 without any knowledge of the written 
 warranty.and the goods did not fulfil the 
 conditions thereof, — held, that plainiiffs 
 were liable to the same extent as if the 
 goods had been sold by them upon that 
 warranty. Davis v. Danforth, 65 Iowa, 
 601. 
 
 One who has authority to receive and 
 take property from a "landing" has 
 authority to receive and take it from a 
 wharf-boat stationed and used at a par- 
 ticular wharf, and constituting one of the 
 landing facilities^ and for the negligence 
 of his agents in removing the property 
 from the boat, resulting in the loss of 
 such property, the owner of the wharf- 
 boat is not liable. Davis v. Reamer, 105 
 Ind. 318. 
 
 A. was the owner of a wharf at New- 
 ark, on the Passaic River, and the con- 
 signee of a cargo of coal shipped on 
 board a barge belonging to libellant. 
 When the barge arrived at the wharf the 
 master found M. in charge, directing the 
 moving of vessels, etc., and in obedience 
 to his direction moored the barge along- 
 side the docks, and when the tide went 
 
 413 
 
Frincipal's liability to Tlurd Parties, -A GENCY. Liable for all Acts of Agent. 
 
 out the barge grounded, and was seriously 
 injured by piling that had, been negli- 
 gently left standing under the water. 
 After mooring, but before the grounding 
 of the barge, the master reported to the 
 clerk of the libellant the arrival of the 
 barge, and was referred lo M. as his 
 representative. Held, that the master 
 had a right to assume that M. was the 
 agent of the owner of the wharf, and that 
 he was liable for the injury. Pennsyl- 
 vania R. Co. V. Atha, 22 Fed. Repr 
 920. 
 
 The principal is not relieved from lia- 
 bility for the acts of his agent by a delay 
 of a thire} party in giving him notice of 
 the failure of the agent to pay for goods 
 purchased. Stappw. Spurlin, 32 Ind. 442. 
 
 Even though the authority of the agent 
 is restricted by instructions from his 
 principal, he will be bound by a warranty 
 attending a sale made by the agent, un- 
 less the purchaser knew of the restriction. 
 Murray v. Brooks, 41 Iowa, 45. 
 
 The principal is bound by all acts of 
 his agent within the scope of the author- 
 ity which he holds him out to the world 
 to possess, although he may have given 
 him more limited private instructions un- 
 known to the persons dealing with him. 
 Jacobson v. Poindexter, 42 Ark. 97. 
 
 Where it appeared that the grantee in 
 a deed, containing a covenant on the part 
 of the grantee to pay a mortgage on the 
 premises, had given to another, by whom 
 the purchase of the land was made, gen- 
 eral authority to deal in real estate in his 
 name, held, that he was bound by the 
 covenant, although he permitted the os- 
 tensible agent to reap the benefits of his 
 dealing, and although he did not know 
 that the clause was in the deed, and never 
 specially authorized its assertion. Schley 
 V. Fryer, 100, N. Y. 71 
 
 A mortgage of land, securing a prom- 
 issory note, was conditioned for the pay- 
 ment of a certain sum in two months, 
 " with interest as specified in the note." 
 The rate of interest expressed in the note 
 was three per cent a month for the two 
 months, and five per cent a month for 
 such further time as any part of the prin- 
 cipal should remain unpaid. An agent 
 of the mortgagee had the custody of the 
 mortgage and note, and knew their con- 
 tents, and had full authority to receive 
 payment of the note at any time, and to 
 dispose of it as he saw fit. A creditor of 
 the mortgagor brought an actioti against 
 him, attached his interest in the land, re- 
 covered judgment, levied his execution 
 upon the debtor's equity of redemption, 
 and became the purchaser thereof at a 
 sale. Before the maturity of the note, 
 
 and while his action was pending, the 
 creditor informed the mortgagee's agent 
 that he had attached the land and wished 
 to pay off the mortgage, and asked him 
 what amount was due. The agent, by 
 falsehood and evasive answers, intention- 
 ally misled him, so that no payment was 
 made. Subsequently, the creditor ob- 
 tained a decree entitling him to redeem 
 the land from the mortgage. Held, that 
 the mortgagee was estopped, by his 
 agent's conduct, to receive from such 
 creditor interest at a higher rate than six 
 per cent per annum after the maturity of 
 the mortgage debt; and that, as the cred- 
 itor made no offer to pay any sum to the 
 mortgagee, he must pay the expenses in- 
 curred in proceedings to foreclose the 
 mortgage before the service of an injunc- 
 tion restraining them. May v. Gates, 
 137 Mass. 389. 
 
 Where a U. S. timber agent has made 
 a compromise with a trespasser on pub- 
 lic lands, who has cut timber without au- 
 thority, the government is not bound by 
 such compromise unless the agent has 
 regularly pursued his authority. Nickles 
 V. Wells, 2 Utah, 167. 
 
 The declarations of an agent are ad- 
 missible as evidence against his principal 
 only when made while transacting the 
 business of the principal and as a part 
 of the transaction which is the subject of 
 inquiry. Hence, where the baggage- 
 master of a railroad company, while 
 away from the baggage-room of the com- 
 pany and engaged in the transaction of 
 his private business on his own premises, 
 gave directions to a stranger with refer- 
 ence to the delivery of baggage, held, 
 that they were not binding on the com- 
 pany. Chillicothe o. Raymond, 80 Mo. 
 185; Danner L. & L. Co. v. Stonewall 
 Ins. Co., 77 Ala. 184; Wolf v. Des 
 Moines, etc., R. Co., 64 Iowa, 380; 
 McDermott v. Hannibal, etc., R. Co., 
 87 Mo. 285. 
 
 A bookkeeper who had some discretion 
 in small sales was directed to collect a 
 balance due upon a particular sale or to 
 get the goods. Held, that this did not 
 give him such standing as an agent that 
 his employer would be bound by his 
 neglect to warn a third person, to whom 
 the purchaser sold the goods, that there 
 was an unpaid claim upon them. Weaver 
 V. Bechtel, 53 Mich. 516. 
 
 Presentation of a bill by a merchant's 
 employee does not warrant the debtor 
 thereon in paying it to him unless it is 
 within the scope of his employment to 
 receive payment; and his mere statement 
 that he is authorized to receive it is not 
 enough, nor is it enough that the bill is 
 
 414 
 
Principal'^ Liability to Third Parties. AGENCY. When Agent exoeeda Authority. 
 
 Agency must Exist. — The existence of the agency must, how- 
 ever, be clearly shown to make the principal liable.^ 
 
 When Agent exceeds Authority. — It does not matter that the 
 agent exceeds his authority.* 
 
 When Agent Contracts in his own Name. — Where an agent con- 
 tracts in his own name and does not disclose his principal, the 
 
 in the merchant's handwriting and on one 
 of his billheads. Hirshfield v. Waldron, 
 54 Mich. 649. 
 
 When one carries on a butcher-shop 
 through an agent, and that agent sells 
 the hides of the slaughtered animals, it 
 should be left to the jury to decide upon 
 the evidence in a suit for the hides be- 
 tween the principal and the purchaser 
 whether the selling of the hides by the 
 agent was within the fair scope of the 
 business. Jacobson v. Poindexter, 42 
 Ark. 97. 
 
 A builder made a written contract to 
 furnish the materials and build a. house 
 for the defendant according to definite 
 plans and specifications and for a fixed 
 sum, all the materials and work to be ac- 
 cepted by an architect named, who was 
 to superintend the construction. The 
 builder, under the direction of the archi- 
 tect, did certain work variant from and 
 in addition to the specifications, which 
 increased the cost and value of the house. 
 Held, that the ordering of this work was 
 beyond the scope of the architect's 
 agency, and that the defendant was not 
 liable to the builder frfr it. Starkweather 
 V. Goodman, 48 Conn. loi; s. c. , 40 Am. 
 Rep. 152. 
 
 "The presumption is that one known to 
 be an agent is acting within the scope of 
 his authority. Brett v. Bassett, 63 Iowa, 
 
 34°. 
 
 1. Campbell v. Sherman, 49 Mich. 534; 
 ,Coon V. Gurle;y, 49 Ind. 199. 
 
 If a debtor pays money to a third party 
 as the agent of his creditor, and after- 
 ward, under protest, pays again to the 
 creditor, he cannot recover of the credi- 
 tor that which he paid the supposed 
 agent; for if he was really the agent, it 
 was but a payment of his debt; if he was 
 not the agent, the creditor is of course 
 not liable. Clowdis v. Hannibal, etc., 
 R. Co., I Am, & Eng. R. R. Cas. 614; 
 s. c, 71 Mo. 510. 
 
 Declarations made by an agent subse- 
 quently to his agency as to any acts done 
 by him within the scope thereof before 
 its termination, are inadmissible to prove 
 the transaction, although competent by 
 way of contradicting his denial thereof. 
 McComb v. N. C. R. Co., 70 N.'Car. 178; 
 Stenhouse v. Charl., etc., R. Co., 70 N. 
 Car. S42. 
 
 2. Kerslake v. Schoonmaker, 3 Th. & 
 C. (N. Y.) 524; Armour v. Mich. Centr. 
 R. Co., 65 (N. Y.) Ill; Engh v. Greene- 
 baum, 4 Th. & C. (N. Y.) 426; Beecherw. 
 Venn, 35 Mich. 466; Tozier v. Crafts, 
 123 Mass. 480; Putnam v. Home Ins. 
 Co., 123 Mass. 324; Knight v. Luce 116 
 Mass. 586; Newman v. British, etc., S. 
 Co., 113 Mass. 362; Ricez'. Groffman, 56 
 Mo. 434; Meyer v. Hehner, 96 III. 400; 
 St. Louis, etc.. Packet Co. v. Parker, 59 
 111. 23; Home Life Ins. Co. v. Pierce, 75 
 111. 426; Fatman v. Leet, 41 Ind. 133. 
 
 M., the travelling salesman of a sewing- 
 machine company, visited Lawrence to 
 solicit purchasers for sewing-machines. 
 He represented that the machines he was 
 selling were superior to sewing-machines 
 in the sale of which defendant was then 
 engaged. He obtained an order from 
 defendant. In the order signed by de- 
 fendant it was provided "that the only 
 condition under which this order is given 
 is as stated herein, and that no agreement 
 different from this can be made except it 
 be in writing and is signed by the gen- 
 eral manager of the Victor Sewing-ma- 
 chine Company." The machines were 
 not superior, and the defendant offered 
 to return the property and cantel the 
 contract. M., the salesman, took back 
 the goods and released the defendant 
 from the order. Held, that the company 
 was bound by the declarations of its 
 agent, and that, the representations not 
 being true, the company was not entitled 
 to recover upon the order after such re- 
 turn of the goods. Victor S. M. Co. v. 
 Rheinschild, 25 Kans. 534. See Autho- 
 rity OF Agents, infra. 
 
 But the act of an agent in excess of 
 his authority never binds the principal 
 unless a third party, having a right to 
 believe that the agent was acting within 
 his authority, would sustain a loss if the 
 act was not considered that of his prin- 
 cipal. Walsh V. Hartford Fire Ins. Co., 
 73 N. Y. 5. 
 
 Nor when a third party is proved to 
 have known that the agent exceeded his 
 authority. Broadway Sav. Bank v. Vors- 
 ter. 30 La. Ann. pt. i, 587. 
 
 Nor where the transaction is of such a 
 character as to put the third party on his 
 guard. Merchants' Mut. Ins. Co. v. Ex- 
 celsior Ins. Co., 4 Mo. App. 578. 
 
 415 
 
Trinoipal's Liability to Third Parties. A GENC Y. Exclusive Credit given to Agent. 
 
 principal, having a right to sue, is also, when discovered^ liable to 
 a third party on the contract. The third party may elect whom 
 he will sue. And the same rule holds good when the agent discloses 
 his principal at the time.^ 
 
 After a third party has elected whom to sue, and has sued either 
 the agent or the principal to judgment, he cannot after that sue 
 the other ; and it does not matter whether the suit has been suc- 
 cessful or not.* 
 
 Exclusive Credit given to Agent. — Where a third party, know- 
 ing that the agent acts for his principal, elects at the time of the 
 making of the contract to give exclusive credit to the agent, he 
 ■cannot afterward sue the principal.^ 
 
 1. McGraw v. Godfrey, 14 Abb. Pr. N. 
 S. (N. Y.)397; s. c.,56N. Y. 610; Mefeker 
 It. Claghorn, 44 N.' Y. 349; Duval v. 
 Wood, 3 Lans. (N. Y.) 489; Inglehart v. 
 Thousand Isl. Hot. Co., 7 Hun (N. Y.), 
 547; Allen T,. Coit, 6 Hill (N. Y.), 318; 
 Poole V. Rice, g W. Va. 73; Chandler zi. 
 Coe, 54 N. H. 561; Upton v. Gray, 2 Me. 
 372; Jones V. .^tna Ins. Co., 14 Conn. 
 501 ; Merrill v. Kenyon, 48 Conn. 314; 
 s. c, 40 Am. Rep. 174; York Co. Bank 
 ■V. Stein, 24 Md. 447; Parker v. Donald- 
 son, 2 W. & S. (Pa.) 9; Youghiogheny 
 Iron Co. V. Smith, 66 Pa. St. 340; Bey- 
 mer v. Bonsai, 79 Pa. St. 298; Barker v. 
 Garvey, 83 111. 1,84; Wheeler v. Reed, 36 
 111. 81; Kerchner v. Reilly, 72. N. Car. 
 17,1; Lovell V. Williams, 125 Mass. 439; 
 Carroll v. St. John's Soc, 125 Mass. 565; 
 Gilmore v. Pope, 5 Mass. 491; James v. 
 Bixby; II Mass. 34; Southard v. Sturte- 
 vant, 109 Mass. 390; Vermont R. Co. v. 
 Clayes, 21 Vt. 30; Baldwin v. Leonard, 
 39 Vt. 260; Borpherling v, Katz, 37 N. 
 J. Eq. 150; Thomas z;. Atkinson, 38 Ind. 
 248; Clark V. Van Riemsdyk, 9 Cranch. 
 {U. S.) 153; Ford V. Williams, 21 How. 
 (U. S.) 288 ; Pope V. Meadow Spring 
 Dist. Co., 20 Fed. Repr. 35. Compare 
 Yenni v. Ocean Nat. Bank, 5 Daly (N. 
 Y.). 421. 
 
 The responsibility of an undisclosed 
 principal, when discovered, cannot be de- 
 feated by a private contract between the 
 principal and the ag^nt that the agent 
 alone will be held liable. Richardson v. 
 Farmer, 36 Mo. 35; Mitchell v. Dall, 2 
 H. & G. (Md.) 159. 
 
 But the rule that an unnamed and un- 
 known principal shall stand liable for the 
 contract of his agent, does not apply to 
 a demise under seal. The relation be- 
 tween the owner of land and those who 
 occupy it is of a purely legal character; 
 and the fact that a lessee takes a lease for 
 an unnamed principal, but in his own 
 name, will not render the unnamed prin- 
 
 416 
 
 cipal liable for the rent. Borcherling z/. 
 Katz, 37 N. J. Eq. 150 ; Kiersted v. 
 Orange, etc., R. Co., 69 N. Y. 343; Du- 
 rand v. Curtis, 56 N. Y. 7; Sanders u. 
 Partridge, 108 Mass. 556. 
 
 2. Gerrard v. Moody, 48 Ga. 96; Cobb 
 V. Knapp, 71 N."Y. 348; McGraw v. God- 
 frey, 14 Abb. Pr. N. S. (N. Y.) 397; s. c, 
 56 N., Y. 610; Jones v. jCtna Ins. Co., 14 
 Conn. 501; Kingsley v. Davis, 104 Mass. 
 178; Priestley v. Ferney, 3 H. & C. 977; 
 34 L. J. Ex. 172. 
 
 It seems that where an agent contracts 
 for the purchase of property in> his own 
 name without disclosing his principal, 
 and the contract is such as may be en- 
 forced against the principal when discov- 
 ered, the vendor cannot enforce it against 
 both principal and agent, but is put to his 
 election, and having after such discovery 
 brought an action and recovered judg- 
 ment against the agent, he is estopped 
 from charging the principal. Tuthill v. 
 Wilson, 90 N. Y. 423. 
 
 The commencement of an action against 
 the principal, though proper to be con- 
 sidered by the jury, is, however, not con- 
 clusive of an election to hold the princi- 
 pal only responsible. The creditor may 
 discontinue his action against one of the 
 parties before judgment, and take fresh 
 proceedings against the other. Cobb v. 
 Knapp, 71 N. V. 348; Raymond v. Crown 
 E. Mills, 2 Mete. (Mass,) 319; Mattlage 
 V. Poole, 15 Hun (N. Y.), 556; McGraw 
 V. Moody, 14 Abb. Pr. (N. Y.) 397; Ger- 
 rard V. Moody, 48 Ga. 96. 
 
 In Beymer v. Bonsall, 79 Pa. St. 298, 
 it was held that neither principal nor 
 agent could be discharged short of satis- 
 faction. 
 
 3. Silver v. Jordan 136 Mass. 319; 
 Raymond v. Crown E. Mills, 2 Mete. 
 (Mass.) 319; James v. Bixby, 11 Mass. 
 34; Winchester v. Howard, 97 Mass. 
 303, Paige V. Stone, 10 Mete. (Mass.) 160; 
 French v. Price, 24 Pick. (Mass.) 13; 
 
Principal's Liability to Third Parties. AGENCY, Liable for Fraud of Agent. 
 
 Liable for Fraud and Deceit of Agent. — Principals, whether in- 
 dividuals or corporations, are as a rule, although not criminaliter,. 
 yet civiliter, liable to third parties for the fraud and deceit of 
 their agents when committed in the course of the principals' busi- 
 ness. For, since somebody must be the loser by the deceit, it is 
 more reasonable that he who employs and puts confidence in the 
 deceiver should be a loser than a stranger.^ 
 
 Mauri v. Hefferman, 13 Johns. (N. Y.) 
 58; Coleman v. First Nat. Bank, 53 
 N. Y. 388; Cunningham v. Soules, 7 
 Wend. (N. Y.) 106; Cheever z/. Smith, 15 
 Johns. (N. Y.) 276; Jones v. Ins. Co., 
 14 Conn. 501; Johnson v. Cleves, 15 
 N. H. 332; Priestley v. Fernie, 3 H. & 
 C. 977; Kymer v. Suwercropp, i Camp. 
 112. 
 
 The legal presumption is, however, that 
 the principal is liable although entries in 
 the books of the third party may charge 
 the agent. Meeker v. Claghorn, 44 N. 
 Y. 349 ; Foster v. Persch, 68 N. Y. 400. 
 
 Where a seller takes the promissory 
 note of the buyer for the goods, with 
 knowledge that he is an agent, but with- 
 out knowledge who is the principal, he 
 is not debarred thereby from electing to 
 make the principal his debtor. Merrill 
 V. Kenyon, 48 Conn. 314; s. c, 40 Am. 
 Rep. 174. 
 
 See ajso Liability of Agents to 
 Third Parties; also Authority of 
 Agents, which see also for liability of 
 principal when agent exceeds his au- 
 thority. 
 
 1. Hern v. Nichols, I Salk. 289; Jef- 
 frey V. Bigelow, 13 Wend. (N. Y.) 518; 
 s. c, 28 Am. Dec. 476; Davis v. Bemis, 
 40 N. Y. 453; Sandford v. Handy, 23 
 Wend. (N. Y.) 260; New York & N. H. 
 R. Co. V. Schuyler, 34 N. Y. 30; Nat. 
 Life' Ins. Co. v. Minch., 5 Th. & C. (N. 
 Y.) 545; Elwell V. Chamberlin, 31 N. Y. 
 611, 919; Weed V. Panama R. Co., 17 
 N. Y. 362; Griswold v. Haven, 25 I^. Y. 
 595; AUerton v. Allerton, 50 N. Y. 670; 
 Bennett v. Judson, 21 N. Y. 238; Crans 
 V. Hunter, 28 N. Y. 389; Locke v. 
 Stearns, i Mete. (Mass.) 560; White v. 
 Sawyer, 16 Gray (Mass.), 586; Concord 
 Bank v. Gregg, 14 N. H. 331; Scofield 
 Rolling Mill Co. v. State, 54 Ga. 635; 
 Lynn v. Baltimore, etc., R. Co., 60 Md. 
 404; s. c, 45 Am. Rep. 741; Tome v. 
 Parkesburgh, etc., R. Co. , 39 Md. 36; 
 Peebles v. Patapsco Guano Co., 77 N. 
 Car. 233; Reynolds v. Witte, 13 S. Car. 5; 
 s. c, 36 Am. Rep. 678; Bowers v John- 
 son, 18 Miss. 169; Lawrence v. Hand, 
 23 Miss. 103; Mundorfif v. Wickersham, 
 63 Pa., St. 87; Eilenberger v. Prot. Mut. 
 F. Ins. Co. , 89 Pa. St. 464; Taggs v. Tenn. 
 
 Nat. Bank, 9 Heisk. (Tenn.) 479; Wolfe 
 V. Pugh, loi Ind. 293; Madison R. v. 
 Norwich, 24 Ind. 457; Haskit v. Elliott, 
 58 Ind. 493; Law v. Grant, 37 Wis. '548;, 
 Crump V. U. S. Mining Co., 7 Gratt. 
 (Va.) 352; s. c, 56 Am. Dec. 116; Reeves. 
 V. State Bank, 8 Ohio St. 465, 476; Bristol 
 Knife Co. v. First Nat Bank, 41 Conn. 
 421; Brokaw v. N. J. R. Co., 32 N. J. L. 
 328; Vance v. Erie R. Co., 32 N. J. L. 
 334; Upton V. Tribilcock, 91 U. S. 45; 
 White V. Wabash, etc., R. Co., 64 Iowa, 
 281; Dougherty v. Wells, 7 Nev. 368. 
 
 An innocent vendor cannot be sued in 
 tort for the fraud of his agent in effect- 
 ing a sale. In such a case the vendee, 
 may rescind the contract and reclaim 
 the money paid, and if not repaid may 
 sue the vendor in assumpsit for it, or he 
 may sue the agent for the deceit. Ken- 
 nedy w. McKay, 43 N. J. L. 288; s. u., 
 39 Am. Rep. 581. 
 
 If an agent effects a sale by false repre- 
 sentations or other fraud, without au- 
 thority or knowledge of the principal, the 
 latter is chargeable with such fraud in 
 the same manner as if he had known or 
 authorized it. Lynch v. Mercantile Trust 
 Co., 18 Fed. Rep. 486; Law v. Grant, 
 37 Wis. 548; Bennett v. Judson, 21 N. 
 Y. 238; Elwell V. Chamberlin, 31 N. Y. 
 611, 619; Rhoda V. Annis, 75 Me. 17- 
 s. c, 46 Am. Rep. 354. Compare Bridges 
 V. McClendon, 56 Ala. 327. 
 
 A person is not bound by a contract 
 which he is induced to sign by represen- 
 tations of an agent made, while actings 
 within the scope of his agency, as true of 
 his own knowledge, but which prove to 
 be false, although not known by the 
 agent to be so; and the principal is bound 
 by such representations, althoughhe does, 
 not expressly authorize them or know 
 that the agent is to make them. Jewett 
 ■V. Carter, 132 Mass. 335; Locke v. 
 Stearns, i Mete. (Mass.) 560 ; Kibbe v. 
 Hamilton Ins. Co., 11 Gray (Mass.), 163. 
 
 A fortiori where the fraud or deceit 
 was authorized by the principal. Peebles 
 V. Patapsco Guano Co., 77 N. Car. 233," 
 Brokaw v. N. J. R. Co., 32 N. J. L. 328; 
 Vance v. Erie R. Co., 32 N. J. L. 334; 
 Hunter v. Hudson River Iron & Ma- 
 chine Co., 20 Barb. (N. Y.) 493; Phelps 
 
 417 
 
Principal's Liability to Third Parties. A GENC Y. When Liable for Agent's Fraud. 
 
 Committed in Course of Employment. — The deceit or fraud, to 
 make J:he principal liable on it, must haf/e been committed in the 
 course of the agent's employment.'^ 
 
 •V . Wait, 30 N. Y. 78 ; Gass v. Coblens, 43 
 Mo. 377; Fogg ?'. Griffin, 2 Allen (Mass), 
 i; Hewett v. Swift, 2 Allen (Mass.), 
 420; Severin v. Eddy, 52 111. i8g; Car- 
 man V. Railr. Co., 4 Ohio St. 399; Galena 
 R. Co. V. Rae, 18 111. 488; s. c, 68 Am. 
 Dec. 574; Hynes v. Jungren, 8 Kans. 
 
 391- 
 
 Or where the principal has received a 
 benefit from the fraudulent transaction. 
 Hewett V. Swift, 3 Allen (Mass.), 420; 
 Bryant v. Rich, 106 Mass. 180; Atlantic 
 Co. V. Merchants' Co., 10 Gray (Mass.), 
 532; Cook V. Castner, g Cush. (Mass.) 
 266; Kibbe v. Ins. Co., 11 Gray (Mass.), 
 163; Lane v. Black, 21 W. Va. 617; 
 Morton v. Scull, 23 Ark. 289; Durst v. 
 Burton, 47 N. Y. 167; s. c, 2 Lans. (N. 
 Y.) 137; Smith V. Tracy, 36 N. Y. 79; 
 Griswold v. Haven, 25 N. Y. 595; Jeffrey 
 V. Bigelow, 13 Wend. (N. Y.) 518; s. c, 
 28 Am. Dec. 476; Woodward v. Webb, 
 65 Pa. St. 254; FoK V. N. Lib., 3 W. & 
 S. (Pa.) 103; Priester v. Angley, 5 Rich. 
 (S. Car.) 44; Bank v. Bank of the State, 
 13 Rich. (S. Car.) 291; Exum v. Brister, 
 35 Miss. 391; Wallace v. Morgan, 23 
 Ind. 399; Evansville v. Baum, 26 Ind. 
 70; Veazie v. Williams, 8 How. (U. S.) 
 138; Doggett V. Emerson, 3 Story (U. 
 S.), 700; NicoU V. Am. Co., 3 Wood & 
 M. (U. S.) 529. 
 
 Where one is induced to become surety 
 on a promissory note by the representa- 
 tions of the secretary of a building asso- 
 ciation, the assotiation cannot allege a 
 want of authority in the secretary to 
 make such representations when the 
 surety makes defence on the terms of the 
 agreement. The association cannot have 
 the benefit of the security and at the 
 same time repudiate the coniract by 
 means of which they obtained it. Jones 
 V. Nat. Building Assoc, 94 Pa. St. 215. 
 
 In a suit for damages against the princi- 
 pal for the tort of an agent, the plaintiff 
 alleged, and testified, that he hired a 
 horse to the agent, who was travelling 
 about the country selling steam-engines 
 in the interest of his principal (a manu- 
 facturing company), and that the horse 
 was injured by misuse and overdriving. 
 The defendant admitted the agency, but 
 asked the court to instruct the jury that 
 there was no evidence the agent had 
 authority from the principal to hire 
 horses, which was refused; Aetd, no 
 error. Huntley v. Mathias, go N. Car. 
 101; s. c, 47 Am. Rep. 516. 
 
 Where a member of a firm makes a 
 settlement with ,an insurance company 
 for loss by fire, which was procured by 
 the fraud of an agent of the company, the 
 firm m^st restore what was received 
 under the settlement before bringing suit 
 upon the policy. Brown v. Hartford Fire 
 Ins. Co., 117 Mass. 479. 
 
 Even where a principal takes no ad- 
 vantage of a fraud he cannot sue on a 
 contract based on it. Concord Bank v. 
 Gregg, 14 N. H. 331; Wrigljt v. Calhoun, 
 ig Tex. 412; Robinson v. Bealle, 20 Ga. 
 275; Cassard v. Hinmann, 6 Bosw. (N. 
 Y.) 8. 
 
 H., the owner of chattels, relying on 
 the representations of R. that he was the 
 agent of L., agreed to sell the same to L. 
 on credit, and H., in the belief that R. 
 was such agent, delivered the chattels to 
 him, when in fact he was not such agent, 
 nor had he authority to purchase for L. , 
 as he well knew. I/etd, that the property 
 in the chattels did not pass from H.,' and 
 that L., who bought the chattels of R. and 
 converted them to his own use, without 
 knowledge of the fraud, was liable to H. 
 for their value; and the fact that R., at 
 the time the chattels were delivered to 
 him, paid H. part of the price agreed on, . 
 will make no difference, except as to the 
 amount of recovery against L. Hamet 
 V. Letcher, 37 Ohio St. 356; s. c, 41 Am. 
 Rep. 5ig; citing Moody v. Blake, 117 
 Mass. 23; Barker I/. Dinsmore, 72 Pa. St. 
 427; Saltus v. Everett, 20 Wend. (N. Y.) 
 267; Fawcettw. Osborn, 32 III.411; Hard- 
 man w. Booth, I H. & C. 803; Higgons v. 
 Burton, 26 L. J. Ex. 342; Kingsford v. 
 Merry, i H. & N. 503; HoUins v. Fowler, 
 L. R. 7 Q. B. 616; affirmed, L. R. 7 App. 
 757; /» re Reed, 3 Ch. D. 123; Lickbar- 
 row V. Mason, i Smith's L. C. 2 pt. iigs; 
 Cundy v. Lindsay, 3 App. Cas. 45g; 
 Sanders v. Miller, 28 Ohio St. 630. See 
 Benjamin on Sales, §§ 433 et seq. 
 
 But one who obtains possession of 
 property by deceit from one whom he is 
 bound to know not to be the owner's 
 agent cannot hold it as against the owner. 
 Rafferty v. Haldron' 81* Pa. St. 438. 
 
 1. Wilson V. Peverly, 2 N. H. 548; 
 Harris v. Nicholas, 5 Munf. (Va.) 483; 
 McClenaghan v. Brock, 5 Rich. L. (S. 
 Car.) 17; Brown v. Purviance, 2 H. & 
 G. (Md.) 316; Fiske v. Framingham Co., 
 14 Pick. (Mass.) 491; Jackson v. Second 
 Ave. R. Co., 47 N. Y. 274; Isaacs v. 
 Third Ave. R. Co., 47 N. Y. 122; Rich- 
 
 418 
 
Liability for Negrligence of Agent. A GENC Y. Notice to Agent Notice to Principal. 
 
 Liable for Negligence of Agent. — As a rule a principal is liable 
 for the result of acts of negligence of his agents, when he is acting 
 within the scope of his authority; but not when he is not acting 
 within the scope of his employment.^ 
 
 14. Notice to Agent is Notice to Principal. — In the relation of the 
 principal to a third party the undisputed rule exists that notice to 
 the agent is notice to the principal, if the agent comes to the 
 knowledge of facts while he is acting for the principal.* 
 
 mond St. Co. v. Vanderbilt, i Hill (N. 
 Y.), 480; Kerns v. Piper, 4 Watts (Pa.), 
 222; Repoher v. ,Wattson, 17 Pa. St. 365; 
 Hannibal, etc., R. Co. v. Green, 68 Mo. 
 i6g; Dally v. Young, 3 111. App.-3g. 
 
 The plaintiffs, who were engaged in 
 business in the city of O. in this State, 
 wrote a letter to one N., their salesman 
 atOgden, Utah Territory, authorizing him 
 to draw on them for $75. He placed a 
 figure " i" before the figures "75," 
 whereby the letter was changed to show 
 authority to draw for $175. The letter, 
 as changed, he showed to one B., the 
 hotel-keeper with whom he was stopping, 
 and thereby induced him to indorse a 
 draft on the plaintiff for $150. The draft 
 having been protested f ornon-acceptance, 
 and paid by the indorsee, held, that he 
 could recover against the plaintiffs to the 
 extent of the authority of their salesman 
 to draw on them. Wilson v. Beardsley, 
 30 N. Western Repr. (Neb.) 529. 
 
 So are the representations of a solicitor 
 of subscriptions to the stoclc of a gravel- 
 road company made before the organiza- 
 tion of the company concerning the loca- 
 tion of the road, and that the stock would 
 not have to be paid for, not binding on 
 the company; and their falsity is no 
 defence as a failure of consideration or 
 otherwise in an action by the company 
 on the subscription of a person to whom 
 such representations were made. Miller 
 V. Wildcat Gravel Road Co., 52 Ind. 51. 
 
 An agent intrusted with money to 
 invest exacted usury, in the way of a 
 bonus to himself, without knowledge of 
 the principal. Held, that this did not 
 constitute usury in the principal. Condit 
 V. Baldwin, 21 N. Y. 219; s. c, 78 Am. 
 Dec. 137. See Smith v. Tracy, 36 N. Y. 
 79; Estevez v. Purdy, 66 N. Y. 446; 
 Boylston v. Bain, go 111. 283. Qompare 
 Olmsted v. New Engl. Mortgage, etc., 
 Co., II Neb. 487. 
 
 The right of an agent to enter into an 
 illegal contract will not ordinarily be 
 presumed, and the contract is not obli- 
 gatory on the principal and he may dis- 
 affirm it. Arnot v. Pittston, etc., R. Co., 
 5 Th. & C. (N. Y.) 143. 
 
 Where a son had been in the habit of 
 
 receiving goods consigned to his father, 
 and he orders goods to be shipped and 
 charged to his father, and receives them 
 from the carrier, the father will not be 
 liable if the seller had any reason to 
 believe that the son ordered the goods 
 for his own use. Stephenson v. Grim, 
 100 Pa. St. 70. 
 
 1. Weed V. Panama R. Co., 17 N. Y. 
 362; Blackstock v. N. Y. & Erie R. Co., 
 20 N. Y. 48; Richmond Turnpike Co. v. 
 Vanderbilt, I Hill (N. Y.), 480; Isaacs i-. 
 Third Ave. R. Co., 47 N. Y. 122; Jack- 
 son 71. Second Ave. R. Co., 47 N. Y. 274; 
 Chicago & N. W. R. Co. v. Bayfield, 37 
 Mich. 205; Chicago, etc., R. Co. v. Hal- 
 leck, 13 III. App. 643; Marsh v. S. Car. 
 R. Co., 56Ga. 274; Southwick v. Estes, 7 
 Cush. (Mass.) 385 ; Montague v. Boston, 
 etc., R. Co., 124 Mass. 242; Richoux v. 
 Mayer, 29 La. Ann. 828; Brown v. Pur- 
 viance, 2 H. & G. (Md.) 316; Penn., etc., 
 Nav. Co. V. Hungerford, 6 G. & J. (Md.) 
 291; Pickens v. Diecker, 21 Ohio St. 212; 
 Barber v. Britton, 26 Vt. 112; Harris v. 
 Nicholas, 5 Munf. (Vt.)483; Petersburgh 
 V. Applegarth, 28 Gratt. (Va.) 321 ; Oliver 
 V. Northern, etc.. Trans. Co., 3 Oreg. 
 84; Kerns v. Piper, 4 Watts (Pa.), 222; 
 McClenaghan v. Brock, 5 Rich. L. (S. 
 Car.) 17; Eastman w. Meredith, 36 N. H. 
 284; s. c, 72 Am. Dec. 302; Edgerly v. 
 Concord, 59 N. H. 341 Wakefield v. 
 Newport, 60 N. H. 374; Wilson v. 
 Peverly, 2 N. H. 548; Philadelphia, etc., 
 R. Co. V. Derby, 14 How. (U. S.) 468. 
 See also Master and Servant. 
 
 2. Bank of U. S. w. Davis, 2 Hill (N. 
 Y.), 451; Jackson w. Sharp, 9 Johns. (N. Y.) 
 163; s. c, 6. Am. Dec. 267; Jackson v. 
 Winslow, 9 Cow. (N. Y.) 13; Hier v. 
 Odell, 18 Hun (N. Y.), 314; Jackson v. 
 Leek, 19 Wend. (N. Y.)339; Fulton Bank 
 V. Canal Co., 4 Paige (N. Y.), 127; Nat. 
 Life Ins. Co. v. Minch, 53 N. Y. 144; 
 Miaghan t,. Hartford Ins. Co., 24 Hun 
 (N. Y.), 59; Ward v. Warren, 82 N. Y. 265; 
 ingalls V. JVIorgan, 10 N. Y. 178; Bracken 
 V. Miller,^ 4 W. & S. (Pa.) 102; Reed's 
 Appeal, 34 Pa. St. 207; Philadelphia v. 
 Lockhardt, 73 Pa. St. 211; Houseman v. 
 Girard Assoc, 8 Pa. St. 256; Sterling 
 Bridge Co. w. Baker, 75 111. 139; Williams 
 
 419 
 
Notice to Agent is 
 
 AGENCY. 
 
 ITotice to FrincipaL 
 
 V. Tatriall, 29 111. 553; Flower w.EUwOod, 
 66 111. 438 ; Singer Mfg. Co. v. Holdfodt, 
 86 III. 455; Quincy Coal Co. v. Hood, '77 
 111. 68; Mobile, etc., R. Co. v. Thomas, 
 42 Ala. 672; Farmer v. Willard, 71 N. 
 Car. 284; Monroe v. Stulte, g Ired. (N. 
 Car.) 281; Grandy v. Ferebee, 68 N. Car. 
 356; Owens V. Roberts, 36 Wis. 258; 
 Gans V. St. Paul, etc., Ins. Co., 43 Wis. 
 108; Union Gold Mining Co. v. Rocky 
 Mt. Nat. Bank, 2 Colo. 565; Whitehead 
 V. Wells, 29 Ark. 99; Suit v, Woodhall, 
 113 Mass. 391; Allen v. Poole, 54 Miss. 
 323; Saulsbury v. Wimberly, 60 Ga. 78; 
 Memphis, etc., R. Co. v. Koch, 28 Kans. 
 565;' Ross V. Houston, 25 Miss. 591; 
 s. c, 59 Am. Dec. 231; Mass. L. Ins. Co. 
 V. Eshelrnan, 30 Ohio St. 647; Slater v. 
 Irwin, 38 Iowa, 261 ; Hovey v. Blanchard, 
 13 N. H. 145; Smith V. Water Com'rs. 
 38 Conn. 208; Pritchett v. Sessions, 10 
 Rich. (S. Car.) 293; Hill v. North, 
 34 Vt. 604; Sooy V. State, 41 N. J. L. 
 394; Covey V. Hannibal, etc., R. Co., 86 
 Mo. 635; Chouteau v. Allen, 70 Mo. 2go; 
 Taylor v. Young, 56 Mich. 285; Grace v. 
 Am. Cent. Ins. Co., l6 Blatch. (U. S.) 
 433; Rogers v. Palmer, 102 U. S..263; 
 Hoover w. Wise. 91 U. S. 308; Flagg v. 
 Mann, 2 Sumn.- (U. S.) 486; Bowman v.. 
 Wathen, i How. (U. S.) 196; Astor v. 
 Wells, 4 Wheat. (U. S.) 466; Mech. Bank 
 V. Seton, I Pet. (U. S.) 299. , 
 
 The plaintiff signed an application for 
 insurance, which was written by B.', "an 
 insurance broker," in the office of the de- 
 fendant's agent. The defendant returned 
 the application to its agent for further 
 information as to the occupancy and 
 ownership of the property insured. The 
 agent handed it to B., requesting him "to 
 go and get the reply." B. took it, saw 
 the assured, and although he learned 
 from him that he was only a conditional 
 vendee in possession of the personal 
 property, and the vendor the tenant of 
 the store in which it was situated, wrote 
 in it that the assured was both the owner 
 and tenant. B. was neither appointed 
 nor recognized as agent by the company, 
 nor by its agent. Held, that the writing of 
 the false statements, in legal significance, 
 was the act of the agent; that the knowl- 
 edge of B. was the knowledge of the 
 company, and that it was estopped from 
 claiming i forfeiture; that the defendant 
 could not avoid its responsibilities by re- 
 pudiating the acts of its agent, though 
 done in part by a person employed by 
 him. Mullin v. Mut. Fire Ins. Co., 58 
 Vt. 113. 
 
 Where the statements made in an ap- 
 plication for insurance were by the con- 
 tract made a warranty by the assured, 
 
 but the company, by its agent, wlio had 
 authority to take the risk, was on the 
 premises when the application was made, 
 and then viewed the property, and him- 
 self filled out the application, writing 
 therein statements which he knew were 
 not true, held, that the agent's knowledge 
 should be imputed to the company, and 
 that it was estopped from claiming that 
 the representations in th'e application 
 were not true. Eggleston u. Council 
 Bluffs Ins. Co., 65 Iowa, 308. 
 
 If an agent has notice, at the time of 
 his purchase for his principal, of the equi- 
 table rights of another, and of the claim 
 of the latter to have previously purchased 
 the subject-matter of the sale, this will 
 be notice to the principal. Whitney v. 
 Burr, 115 111. 289. 
 
 He who takes with notice of an equity 
 takes subject to the equity. Noticevis 
 not necessarily positive information 
 brought directly home, but any fact that 
 would put an ordinarily prudent man on 
 inquiry; and a party will be as much 
 bound by notice given to his agent as if 
 it was given to himself personally; and 
 the fact that the agent may be unable to 
 read and write will be immaterial. Meier 
 V. Blume, 80 Mo. 179. 
 
 A policy of fire insurance upon a build- 
 ing was issued by defendant, loss if any 
 payable to a mortgagee named. The 
 policy contained a condition avoiding it 
 in case of " increase of hazard" by the 
 erectioti of neighboring buildings, but in 
 a " mortgage clause" it was declared that 
 the interest of the mortgagee would not 
 be invalidated fey any ac"". or neglect of 
 the mortgagor. The mortgagee, how- 
 ever, was required to notify the company 
 of any increase of hazard which shall 
 come to his knowledge. The policy pro- 
 vided for a renewal, but declared that 
 " in case there shall have been any in- 
 crease of hazard it must be made known 
 to the company by the assured at the time 
 of renewal, otherwise this policy shall be 
 void." During the life of the original 
 policy the insured erected a building 
 near the one insured which increased the 
 hazard. A loss occurred after the ex- 
 piration of the original policy. In an ac- 
 tion thereon a renewal was claimed by 
 plaintiff. It appeared that the broker 
 who acted on behalf of the insured, and 
 the mortgagee, in making the alleged re- 
 newal agreement with the company, had 
 knowledge at the time of the erection of 
 the new building, but did not disclose 
 the same. Held, that the knowledge of 
 the agent, was imputable to his principal, 
 the mortgagee, and that his failure to 
 disclose it avoided the policy, conceding 
 
 420 
 
B otice to Agent Notice to Principal. A GENC Y. 
 
 Corporations. 
 
 But notice to the agent to bind the principal must be within 
 the scope of the agent's employment. ^ 
 
 Notice to an agent of any fact outside the scope df his agency 
 will not affect the principal.'-* 
 
 Corporations. — The rule that a notice. to the agent to bind the 
 principal must be within the scope of his employment, and while 
 
 there was a valid renewal agreement. 
 Cole V. Germania Ins. Co., gg N. Y. 
 .36. 
 
 Notice to an agent before the agency 
 is begun, or after it has terminated, will 
 not ordinarily affect the principal. An- 
 derson V. Volmer, 83 Mo. 403; Hay ward 
 V. Nat. F. Ins. Co., 52 Mo. 181; 
 Mechanics' Bank v. Schaumburg, 38 
 Mo. 228; Houseman v. Building Assoc, 
 *i Pa. St. 256; Hood V. Fahnestock, 
 8 Watts (Pa.), 48g; s. c, 34 Am. Dec. 48g; 
 Smith's Appeal, 47 Pa. St. 128; Plymp- 
 ton V. Preston, 4 La. Ann. 356; Ben 
 Franklin's Ins. Co. &. Weary, 4 III. App. 
 74; Day V. Wamsley, 33 Ind. 145; 
 Blumenthal w. Brainerd, 38 Vt. 4.02; 
 Howard Ins. Co. v. Halsey, 8 N. Y. 271; 
 Boardraan v. Taylor, 65 Ga. 638; Yerger 
 A Barz, 56 Iowa, 77; McCormick v. 
 Wheeler, 36 111. 114; Pepper v. George, 
 51 Ala. 190; Pringle v. Dunn, 37 Wis. 
 451; Crane v. City Ins. Co., 3 Fed. 
 Repr. 558; s. c, 2 Flipp. (U. S.) 576. 
 
 A notice to a principal cannot be es- 
 tablished by the declarations of an agent 
 after the transactions in which he was 
 agent have been closed and completed. 
 'Greer ■». Higgins, 8 Kans. 5ig. 
 
 1. Nat. Life Ins. Co. v .Minch, 53 N. 
 Y. 144; Ward v. Warren, 82 N. Y. 265; 
 Hier v. Odell, 18 Hun (N. Y.), 314; 
 Greentree w. Rosenstock, 5i N. Y. 583; 
 Owens ». Roberts, 36 Wis. 258; Congar 
 v. Chicago, etc., R. Co., 24 Wis. 157; 
 Pringle v. Dunn, 37 Wis. 44g; Suit v. 
 "Woodhall, 113 Mass. 391; Foster z*. Bos- 
 ton, 127 Mass. 290; Farrington v. Wood- 
 ward, 82 Pa. St. 259; Bracken v. Miller, 
 -4 W. & S. (Pa.) 102; Farmers' Mut. Ins. 
 Co. V. Taylor, 73 Pa. St. 342; Tagg v. 
 Tenn. Nat. Bank, g Heisk. (Tenn.) 47g; 
 Hovey v. Blanchard, 13 N. H. 145; Ross 
 v. Houston, 25 Miss. 591; s. c, 59 Am. 
 Dec. 231' Adam's Expr. Co. v. 'Trego, 
 35 Md. 47; Mobile, etc., R. Co. v. 
 Thomas, 42 Ala. 672; Bierce v. Red 
 Bluff Hotel Co., 31 Cal. 160; Smith v. 
 Water Com'rs, 38 Conn. 208; Flower w. 
 Elwood, 66 111. 438; Slater v. Irwin, 38 
 Iowa, 261; The Distilled Spirits, 11 Wall. 
 (U. S.) 356; Rogers v. Palmer, 102 U. S. 
 263. 
 
 Notice to a son that his father's cattle 
 has been seized is notice to the father 
 
 where the son has authority to institute 
 an action of replevin. Campan v. Konan, 
 39 Mich. 362. 
 
 Where an agent is clothed with ample 
 powers to buy and sell real estate, insti- 
 tute and defend suits in the name of his 
 principal, actual notice to him in relation 
 to the subject-matter of the agency is ac- 
 tual notice to the principal, and is a valid 
 defence on a motion to set aside a judg- 
 ment rendered by default cancelling a 
 tax deed. Merriam j/. Calhoun, 15 Neb. 
 569. 
 
 Notice to an agent of a bank intrusted 
 with the management of its business is 
 notice to the corporation in transactions 
 conducted by such agent acting for the 
 corporation, in the scope of his author- 
 ity, whether the knowledge of the agent 
 was acquired in the course of the particu- 
 lar dealing or on some prior occasion. 
 Cragie v. Hadley, 99 N Y. 131. 
 
 Notice to the agent is notice to the 
 principal when the latter if acting for 
 himself would have received notice of 
 the matters known to the agent. Sovy 
 V. State, 41 N. J. L. 394. 
 
 2. Roach V. Karr, 18 Kans. 329; 
 Mound City L. I. Co. v. Twining, 19 
 Kans. 349; Adams Expr. Co. z;. Trego, 
 35 Md. 47; Congar v. Chicago, etc., R. 
 Co., 24 Wis. 157; Wells V. Am. Expr. 
 Co., 44 Wis. 342; Smith z/. Water Com'rs, 
 38 Conn. 208. 
 
 Notice to a depot agent of an assign- 
 inent of a chose of action is not notice to 
 the company. Lambreth v. Clarke, 10 
 Heisk. ("Tenn.) 32. 
 
 Notice of an auctioneer of the pen- 
 dency of a suit against his principal re- 
 specting the property to be sold by him 
 is not notice to the principal. Hinton v. 
 Citizens' Ins. Co., 63 Ala. 488. 
 
 The collection of a judgment which a 
 third party had obtained against the 
 agent was not a matter pertaining to the 
 agency; and upon execution on such 
 judgment, notice served upon the agent 
 only, in proceedings whereby it was 
 sought to hold the principal as garnishee, 
 was no notice to the principal. Upton 
 Mfg. Co. V. Stewart, 61 Iowa, 209. 
 
 Knowledge acquired by an attorney 
 while acting for one client will not affect 
 another client for whom he is acting a. 
 
 J C. of L.— 28 
 
 421 
 
Notice to Agent Notice to Principal. A GENC Y. To wliom Notice must be given. 
 
 acting within the range of his authority, applies specially to agents 
 of corporations.^ 
 
 To whom Notice must be given. — In the case of notice to direct- 
 ors of a bank it has been held that the notice must have been 
 given officially to the whole board or to a majority of them acting 
 in the transaction affected by the notice ; but it has also been held 
 that notice of facts to one director acting in such a transaction is 
 notice to the corporation.* 
 
 When Notice must be given to Agent to bind Principal. — Some 
 authorities hold that a' notice which will bind the principal must 
 have been given to the agent in the particular transaction to 
 which the notice relates ;^ others, that knowledge of the agent is 
 knowledge of the principal, no matter when and how the knowl- 
 edge came to the agent, as long as it was in the agent's mind at 
 the time of the transaction affected by it.* 
 
 formed the bank of all facts essential to 
 its knowledge, and who knew that the 
 note was not held by his principal in his; 
 own right but only in trust, the bank was 
 presumed to have known what it could so 
 easily have ascertained. Smith v. Ayer, 
 loi U. S. 320. 
 
 2. Louisiana State Bank v. Senecal, 13 
 La. 525; Housatonic Bank v. Martin, i 
 Mete. (Mass.) 294; Commercial Bank v. 
 Cunningham, 24 Pick. (Mass.) 270; Hal- 
 lowell. etc.. Bank v. Hamlin, 14 Mass. 
 180; Nat. Sec. Bank v. Cushman, 121 
 Mass. 490; Nat. Bank v. Norton, i Hill 
 (N. Y.), 572; Bank of U. S. v. Davis, 2 
 Hill fN. Y.). 451; North River Bank v. 
 Aymar, 3 Hill (N. Y.), 262; Davis Im- 
 proved,, etc., Co. V. Davis Wrought Iron, 
 etc., Co., 20 Fed. Repr. 699; Fairfield 
 Sav. Bank v. Chase, 72 Me. 226; ». u., 39 
 Am. Rep. 319. 
 
 3. Farmers' Bank v. Payne. 25 Conn. 
 444; s. c, 68 Am. Dec. 362; Bank of U. 
 S. V. Davis, 2 Hill (N. Y,), 451: Westfield 
 Bank v. Cornen, 37 N. Y. 320; Jackson 
 V. Sharp, 9 Johns. (N. Y.) 163; s. c, 6 
 Am. Dec. 267; Hood v. Fahnestock, 8 
 Watts (Pa.), 489; Bracken v. Miller, 4 W. 
 & S. (Pa.) 102; Winchester v. Railroad, 
 4 Md. 231; Keenan v. Ins. Co., 12 Iowa. 
 126; Second Nat. Bank v. Curren, 36 
 Iowa, 555; McCormick v. Wheeler, 36 
 111. 114; Congar v. Chicago, etc., R. Co., 
 24 Wis. 157; Bierce v. Red Bluff Hotel 
 Co., 31 Cal. 160. And see Lawrence v. 
 Tucker, 7 Greenl. (Me.) 195. 
 
 4. The Distilled Spirits, 11 Wall. (U. 
 S.) 356; Blumenthal v. Brainerd. 38 Vt. 
 402; Hart V. Farmers' Bank, 33 Vt. 252; 
 Hayward v. Nat. Ins. Co., 52 Mo. 181; 
 Chouteau v. Allen, 70 Mo. 290; Hovey 
 V. Blanchard, 13 N. H. 145; Patten v. 
 Ins. Co., 40 N. H. 375; MuUin v. Mut. 
 Fire Ins. Co., 58 Vt. 113; Lebanon Sav. 
 
 the same time in a different case. Ford 
 V. French, 72 Mo. 250. 
 
 1. Mechanics' Bank v. Seton, i Pet. 
 (U. S.^ 299; Lyman v. Bank, 12 How. 
 (U. S.) 225; Porter v. Bank of Rutland, 
 19 Vt. 410; New Hampshire Sav. Banlc 
 V. Downing, 16 N. H. 187; Housatonic 
 Bank v. Martin, i Mete. (Mass.) 294; 
 Wasington Bank v. Lewis, 22 Pick. 
 (Mass.) 24, 31; Commercial Bank v. 
 Cunningham, 24 Pick. (Mass.) 270; Frost 
 V. Belmont, 6 Allen (Mass.), 152; Weld 
 V. Gorhara, 10 Mass 366; West Boston 
 Sav. Bank z/. Thompson, 124 Mass. 506; 
 Farmers' Bank v. Payne, 25 Conn. 444; 
 s. c, 68 Am. Dec. 362; Bank of New 
 Milford V. Milford, 36 Conn. 93; Smith 
 •V. Water Com'rs, 38 Conn. 208; Willard 
 V. Buckingham, 36 Conn. 395; Trenton 
 Bank v. Woodruff, 2 N. J. Eq. 117; 
 Custer V. Bank, 9 Pa. St. 27; Bank 
 V. Whitehead, 10 Watts (Pa.), 397; Bank 
 of U. S. V. Davis, 2 Hill (N. Y.), 451; 
 Fulton Bank v. Canal Co., 4 Paige 
 (N. Y.), 127; New Hope Bridge Co. v. 
 Phoenix Bank, 3 N. Y. 156; Westfield 
 Bank v. Cornen, 37 N Y. 320; Atlantic 
 Bank v. Savery, 82 N. Y. 291; Second 
 Nat. Bank v. Curren, 36 Iowa, 555; 
 Louisiana Bank v. Senecal, 13 La. 525; 
 Branch Bank v. Steele, 10 Ala. 915; 
 Goodloe V. Godley, 2t Miss. 233; a c. , 
 51 Am. Dec. 159; Harriman v. Queen 
 Ins. Co., 49 Wis. 71. 
 
 Knowledge of a person occupying two 
 positions, — one the treasurer of a com- 
 pany, and the other the cashier of a bank, 
 — which knowledge he acqtiires in the 
 capacity of treasurer, cannot be imputed 
 to the bank, unless revealed by him to 
 some of the ofBcers thereof. Wilson v. 
 Second Nat. Bank, 7 Atl. Repr. (Pa.) 145. 
 
 Where a bank bought a note upon the 
 representations of an attorney who in- 
 
 423 
 
Notice to Agent Notice to Frincipat. A GENC Y. Principal's Bights as to Third Parties. 
 
 Collusion. — If an agent should collude with a third party to de- 
 fraud the principal, the latter will not be responsible for knowl- 
 edge of the agent in relation to such fraud.* 
 
 While the knowledge of an agent is ordinarily to he imputed to 
 the principal, it would appear now to be well established that there 
 is an exception to the construction or imputation of notice from 
 the agent to the principal in case of such conduct by the agent as 
 raises a clear presumption that he would not communicate the fact 
 in controversy, as where the communication of such a fact would 
 necessarily prevent the consummation of a fraudulent scheme 
 which the agent was engaged in perpetrating.* 
 
 15. Rights of Principals against Third Parties. — May Sue Third 
 Parties on Contracts of Agent. — Those acts or contracts of an agent 
 which render the principal liable to third parties impose on the third 
 parties themselves a reciprocal obligation to the principal ; and as 
 the principal is liable tp the burden of such acts or contracts, 
 whether the agent had authority originally or his acts have been 
 duly ratified, so he is entitled to the rights and benefits arising 
 from such contracts, and may enforce these rights by action. 
 And it does not matter whether the principal is disclosed or not. 
 
 Bank v. Hollenbeck, 29 Minn. 322; Ful- 
 ler V. Atwood, 14 R. I. 293; Van Schoick 
 V. Niagara F. Ins. Co., 68 N. Y. 434; 
 Ingalls V. Morgan, 10 N. Y. 178; Flower 
 7). Elwood, 66 111. 438: Williams v. Tat- 
 nall, 2g Ind. 553; Wiley v. Knight, 27 
 Ala. 336; Dunlap v. Wilson, 32 111. 517; 
 Pritchett V. Sessions. 10 Rich. (S. Car.) 
 293; Tagg V. Tenn. Nat. Bank, 9 Heisk. 
 (Tenn.)479: Fairfield Sav. Bank z/. Chase, 
 72 Me. 226; s. c, 39 Am. Rep. 319; 
 Curts V. Cisna, 7 Biss. (U. S.) 260; 
 Dresser v. Norwood, 17 C. B..N. S. 466; 
 32 L. J. C. P. 201. 
 
 1. Nat. Life Ins. Co. v. Minch, 53 
 N. Y. 144. 
 
 And where an officer of a corporation 
 in his private capacity sells land to the 
 corporation, he must be held not to rep- 
 resent them in the transaction so as to 
 charge the corporation with the knowl- 
 edge he may possess of facts derogatory 
 to the title of the land and which he has 
 not communicated to them. As such he 
 is a stranger to the corporation. Barnes 
 w. Trenton Gaslight Co., 27 N. J. Eq. 
 
 33- 
 
 Where the same person is an officer of 
 two corporations, and he transfers secu- 
 rities issued by one to the other, with 
 knowledge that the securities are subject 
 to an infirmity which renders them in- 
 valid in any hands but those of a bona- 
 fide holder for value, his knowledge: is 
 not the knowledge of the transferee. De 
 Kay V. Hackensack Water Co., 38 N. J. 
 Eq. 158. 
 
 2. Kennedy v. Green, 3 Myl. & K. 
 699; Cave V. Cave, 15 Ch. D. 639; In re 
 European Bank, L. R. 5 Ch. 358; In re 
 Marseilles Extension Railway, L. R. 7 
 Ch. 161; Atlantic National Bank v. Har- 
 ris, 118 Mass. 147; Loringzi. Brodie, 134 
 Mass. 453. 
 
 A, to whom B was indebted, advised 
 C to lend money to B on the security of 
 a. mortgage of personal property, and 
 acted as C's agent in completing the 
 transaction. With the money thus ob- 
 tained B paid A the debt he owed him. 
 Both A and B acted in fraud, but C had 
 no knowledge of the fraud. It was held 
 that the knowledge of A was not in law 
 imputable to C, although A had acted 
 for C in the negotiation. Dillaway v. 
 Butler, 135 Mass. 479. 
 
 A shipped a cargo of sugar to B, and 
 gave him authority to sell the same. 
 The bill of lading recited that the ship- 
 ment was by order of B, and that the 
 sugar was deliverable to his order, and 
 made no mention of any agency. B in- 
 dorsed the bill of lading, and delivered it 
 to a' bank of which he was a director, and 
 pledged the cargo to the bank as security 
 for a loan by the bank to him. This loan 
 was approved by the board of directors, 
 at a meeting at which B was presents 
 Held, that B's knowledge of the fraud 
 was not imputable to the bank; and that 
 an action by A against the bank, for the 
 conversion of the sugar, could not be 
 maintained. Innerarity v. Merchants' 
 National Bank, 139 Mass. 332. 
 
 433 
 
J'rineipal's Bights as to Third Parties. A GENC Y. ■ May Sue on Contracts of Agent. 
 
 ■nor that the agent in the transaction was considered to be the 
 principal.^ 
 
 1. Conklin zi. Leeds, 58 III. 178; War 
 ■der v. White, 14 111. App. 50; Machias 
 Hotel Co. V. Covle, 35 Me. 405; Frazier 
 w. Erie Bank, S'W. & S. (Pa.) 18; Chil- 
 •ders V. Bowen, 68 Ala. 221; Kelley v. 
 Munson, 7 Mass. 319; Bird v. Daggett, 
 ■97 Mass. 494; Nat. Life Ins. Co. v. Allen, 
 lit Mass. 398; Lamson Mfg. Co. v. Rus- 
 sell, 112 Mass. 387; Everett v: Drew. I2g 
 Mass. 150; Stoddard v. Ham, 129 Mass. 
 383; Willard -61. Buckingham, 36 Conn. 
 395; Weed v. Saratoga, etc., R. Co., 19 
 Wend. (N. Y.) 534; Leverick v. Meigs, i 
 Cow. (N. Y.) 64S; Taintor v. Prender- 
 gast, 3 Hill (N. Y.), 72; EI well v. Cham- 
 berlin, 31 N. Y: 611; New York & N. H. 
 R. Co. V. Schuyler, 34 N. Y. 30; Bridge 
 V. Niagara Ins. Co., i Hill (N. Y.) 247; 
 Hicks !<. Whitmore, 12 Wend. (N. Y.) 548; 
 NicoU V. Burke, 78 N. Y. 581; Bryant v. 
 Wells, 56 N. H. 153; State of Wiscon-sin 
 w. Torinus, 26 Minn, i; Williams v. 
 Winchester, 19 Martin (La.), 22 ; Brewster 
 •V. Saul, 8 La. 296; De Vossw. Richmond, 
 18 Gratt. (Va.) 338; Gage v. Stimson, 26 
 Minn. 64; Stonewall Mfg. Co. v. Peek, 
 163 Miss. 342; Walter v. Ross, 2 Wash. 
 ((U. S.) 283; United States v. Parmele, i 
 Paine (U. S.), 252; Wilson v. Codman, 3 
 Cranch. (U. S.) 193. 
 
 Where a public officer knowingly makes 
 a false record, and a person is injured in 
 a traiisaction by reason of the fact that 
 his agent, charged with the whole busi- 
 ness pertaining to the transaction, is de- 
 ceived by the record, the law Will, in the 
 absence of any evidence to the contrary, 
 treat the principal as deceived, and allow 
 him to recover his damages in an action 
 upon the official bond of the officer. Per- 
 kins V. Evans, 5i Iowa, 35. 
 
 As a party is liable for the acts of his 
 agent, so he is entitled to the benefit of 
 his agent's knowledge of facts justifying 
 the bringing of suit. Stansell v. Cleve- 
 land, 64 Tex. 660. 
 
 When an agent makes a contract for 
 the benefit of his principal, whose name 
 is not disclosed, the principal may sue on 
 it in his own name. Bell v. Reynolds, 78 
 Ala. 511; Baltimore Coal-tar, etc., Co. w. 
 Fletcher, 61 Md. 288. 
 
 Although a third party, as by giving 
 exclusive credit to or receiving exclusive 
 ■credit from the agent, may estop himself 
 from suing the principal, this does not 
 prevent the principal from suing on con- 
 tracts so entered into. Graham v. Duck- 
 well, 8 Bush (Ky.), 12; Woodruff v. 
 MoGehee, 30 Ga. 158; Foster v. Smith, 2 
 
 Cold. (Tenn.) 474; Conklin v. Leeds, 58 
 111. 178; Barry v. Page, 10 Gray (Mass.). 
 398; White V. Owen, 12 Vt. 361. Com- 
 pare Roosevelt v. Doherty, I2g Mass. 
 301; s. c. 37 Am. Rep. 356, where it was 
 held that If a factor, under an entire con- 
 tract for a gross sum, sells goods some 
 of which belong to himself and some to 
 his principal, the principal cannot main- 
 tain an action against the purchaser for 
 the value of his goods. 
 
 A broker, who was not intrusted with 
 the possession of the property con- 
 tracted in his own name to sell the same 
 to a vendee, who had no knowledge that 
 the broker was not the real owner, but 
 dealt wiiji him as such. The owners, 
 without any knowledge that the broker 
 had contracted in his own name, and 
 without any conduct on their part cloth- 
 ing the broker with authority to receive 
 payment for them, or any possession, 
 actual or constructive, of the property, 
 delivered the same to the vendee. Ife/d, 
 payment by the purchaser to the broker, 
 under such circumstances, is not a bar to 
 the right of recovery by the owner. 
 Crosby v. Hill, 39 Ohio St. 100. 
 
 Notes payable to the order of an agent 
 in the transaction, or transferred to him, 
 and mortgages to secure them, are the 
 property of the principal, and are trans- 
 ferable by delivery of the principal with- 
 out indorsement of the agent; and the 
 transferee may sue in equity in his own 
 name to foreclose the mortgage and col- 
 lect the debts. Caldwell v. Meshew, 44 
 Ark. 564. 
 
 Where an authorized agent settles an 
 account and gives an order on third par- 
 ties, acceptance and payment by them 
 binds the party liable on the account; 
 biit if it was not authorized and was not 
 made with a view of enabling the creditor 
 to get his pay or a promise to pay from 
 the debtor, he is not bound by it. Mink 
 V. Morrison, 42 Mich. 567. ' 
 
 In cases where either the principal or 
 the agent may sue on a contract entered 
 into by the agent, the right of the prin- 
 cipal is paramount to the right of the 
 agent. Sa'dler v. Leigh, 4 Camp. 195; 
 Taintor v. Prendergast, 3 Hill (N. Y.), 
 72. 
 
 Agents and principals are not in privity 
 with each other in respect to property 
 rights, and the principal is not concluded 
 in that regard by the judgment in a suit 
 brought against his ^gent. Nor does it 
 make any difference that in such suit the 
 
 434 
 
Principal's Bights as to Third Parties, A GENC Y. 
 
 How Uodified^i. 
 
 How Modified.— 'Y\{\% right of the principal is affected and 
 modified to the extent of his responsibility for the acts of his. 
 agent, as for declarations, misrepresentations, concealments, and 
 fraud generally of the agent while acting within the scope of his. 
 authority.^ 
 
 Subject to Equities. — And it is also modified in cases where the 
 agent has been allowed to contract as principal with the third 
 party without notice. In such a case a principal when he takes 
 advantage of the agent's contract must do so subject to all equities 
 and rights of which the other contracting party might avail him- 
 self in the transaction as against the agent, assuming the latter to 
 have been a principal. The buyer is to be placed in the same 
 situation at the time of the disclosure of the real principal as if 
 the agent had been the real contracting party; and is entitled to. 
 the same defence, payment, or set-off as he was entitled to at that 
 time against the agent, the apparent principal, notwithstanding 
 that the agent, though intrusted with the goods, was under -art 
 agreement with his principal not to sell in his own name.^ 
 
 principal was the agent's attorney. War- 
 ner V. Comstock, 55 Mich. 615. 
 
 But when in a contract of sale the 
 agent has a lien upon the subject-matter 
 of the contract or its proceeds, exceeding 
 or equal to the value, the right of the 
 agent will be paramount to the right of 
 the principal. Hudson v. Granger, 5 B. 
 &Ald. 27. 
 
 This rule does not apply to contracts 
 under seal or negotiable instruments 
 signed by the agent in his own name, al- 
 though acting /for a principal. Briggs v. 
 Partridge; 64 N. Y. 357; Spencer v. Field, 
 10 Wend. (N. Y.) >47; Dubois v. Dela- 
 ware, etc.. Canal Co., 4 Wend. (N. Y.) 
 285; Blood V. Goodrich, 9 Wend. (N. Y.) 
 68; s. c, 24 Am. Dec. 121; Mahoney v. 
 McLean, 26 Minn. 415; Potts v. Rider, 3 
 Ohio, 70; Hopkins v. Mehaffy, 11 S. & 
 R. (Pa.) 126; New Eng. Mar. Ins. Co. v. 
 De Wolf, 8 Pick. (Mass.) 56; Andrews w. 
 Estes, II Me. 267; Chandler v. Coe. 54 
 N. H. 561; Clarke v. Courtney, 5 Pet. 
 (U. S.) 319; Beckham v. Drake, 9 M. & 
 W. 79. Compare Beardsley v. Duntley, 
 69 N. Y. 577. 
 
 1. Morton v. Scull, 23 Ark. 289; De- 
 meritt v. Meserne, 39 N. H. 521; Madi- 
 son, etc., R. Co. V. Norwich Sav. Soc, 
 24 Ind. 457; Mutual Benefit Ins. Co. v. 
 Cannon, 48 Ind. 264; Southern Expr. Co. 
 V. Palmer, 48 Ga. 85; Brown ■</. Hartford 
 F. Ins. Co., ii7.Mass. 479; Law ». Grant, 
 37 Wis. 548; Barber v. Britton, 26 Vt. 
 112; Crump V. U. S. Mining Co., 7 Gratt. 
 (Va.) 352; s c, 56 Am. Dec. 116; New 
 York & N. H. R. Co. v. Schuyler, 34 N. 
 Y. 30; Elwell V. Chamberlin, 31 N. Y. 
 611, 619; Craus V. Hunter, 28 N. Y. 389; 
 
 Bennett v. Judson, 21 N. Y. 238; Sand- 
 ford u. Handy, 23 Wend. (N. Y.) 260; 
 North River Bank v. Aymar, 3 Hill (N. 
 Y.), 262. 
 
 An agent's talk with strangers concern- 
 ing past transactions of his employer is 
 not res gesta either in point of time or in 
 relation to parties, and, being of no ac- 
 count as proof, cannot affect his princi- ' 
 pal's rights under a contract on which 
 the transactions were based. Benner v. 
 Feige, 51 Mich. 568. 
 
 Where the circumstances are. however, 
 of such a chairacter as to put a third 
 party on the inquiry about the represen- 
 tations of the agent, the principal will 
 not be held liable for such representa- 
 tions, and the burden of proof is on the 
 third party to show that he acted in entire 
 good faith and had no reason to doubt 
 the representations of the agent. Whe- 
 lan V. McCreary, 64 Ala. 319; Citizens' 
 Sav. Bank v. Hart. 32 La. Ann. 22. 
 
 2, Traub v. Milliken, 57 Me. 63; Koch 
 V. Willi, 63 111. 144; Conklin v. Leeds, 
 58 111. 178; Saladin v. Mitchell. 45 111. 79; 
 Huntington v. Knox, 7 Cush. (Mass.) 
 371; Locke V. Lewis, 124 Mass, i. 7; 
 Kingsley v. Davis, 104 Mass. 17S; Lime 
 Rock Bank v. Plimpton, 17 Pick. (Mass.) 
 159; Bryant ». Wells, 56 N. H. 152; Fos- 
 ter V. Smith, 2 Cold. (Tenn.) 474; Roach 
 V. Turk, 9 Heisk. (Tenn.) 708; Miller v. 
 Sullivan. 39 Ohio St. 79; Woodruff v. 
 McGehee, 30 Ga. 158; Peel v. Shepherd, 
 58 Ga. 365; Stewart v. Woodward, 50 Vt. 
 78; Culver V. Bigelow, 43 Vt. 249; Miller 
 z;. Lea, 35 Md. 396; s. c, 6 Am. Rep. 417; 
 Merrick's Est., 5 W. & S. (Pa.) 9; Lock's 
 Appeal, 72 Pa. St. 491 ; Taintor v. Pren- 
 
 435 
 
Principal's Sights an to Third Parties. A GENC Y. 
 
 How Modified, 
 
 Where an agent is known to act in behalf of a principal no 
 such claim can be set off.^ 
 
 dergast, 3 Hill (N. Y.). 72: Wheeler & 
 W. Mfg. Co. V. Givan. 65 Mo. 8g; Leeds 
 ■u. Mar. Ins. Co. 6 Wheat. (U. S.) 565; 
 Fisher v. Kempton, 7 M. G. & S. 687; 
 George v. Claggett, 7 T. Rep. 359; Isberg 
 V. Bowden, 8 Exch. 852. 
 
 Where a third party acts under a mis- 
 apprehension, not brought about by the 
 principal, the principle does not apply. 
 Brown V. Morris, 83 N. Car. 251. 
 
 Property purchased by an agent in his 
 own name for an undisclosed principal 
 cannot be seized for the debt of the agent 
 unless his creditor has been misled by 
 appearances or the conduct of the parties 
 into giving him credit upon a false basis. 
 Reed v. Mcllroy, 44 Ark. 346. See 
 Loom is V. Barker, 6g 111. 360. 
 
 Where a purchaser of property from 
 the agent of an undisclosed principal 
 treats the agent as owner, having no 
 good reason to know that he is acting as 
 agent, and pays the whole or part of the 
 purchase-money to him, this will be a 
 good defence to an action by the princi- 
 pal. Eclipse Wind Mill Co. v. Thorson, 
 46 Iowa, 181; Renard v. Turner, 42 Ala. 
 117. 
 
 Unless such payments are made after 
 notice by the principal not to pay the 
 agent. Frazier v. Erie Bank, 8 W. & S. 
 (Pa.) 18; Corlies v. Gumming, 6 Cow. 
 (N. Y.) 181; Clark v. Smith, 88 111. 298; 
 O'Connor v. Arnold, 53 Ind. 203. 
 
 Where a principal allowed a clerk who 
 had entire control of the store to hold 
 himself out. as the owner, this will not 
 give a creditor of the clerk a right to 
 attach and sell the store for a debt con- 
 tracted before the commencement of the 
 agency. Banner v. Michel, 23 La. Ann. 
 489. 
 
 1. Ladd V. Arkell, 40 N. Y. Super. Ct. 
 150; Wright V. Cabot. 47 N. Y. Super. Ct. 
 229; Miller v. Lea, 35 Md. 396; s. c, 6 
 Am. Rep. 417; Ilsey v. Merriam, 7 Gush. 
 (Mass.) 242; Graham v, Duckwall, 8 
 Bush (Ky.), 12; Frame v. William Penn 
 Coal Co., 97 Pa. St. 309; Saladin v. 
 Mitchell, 45 111. 79; Hurlburt v. Pac. 
 Ins. Co., 2 Sumner (U. S.), 471; Semen- 
 za V. Brinsley, 18 C. B. N. S. 467. 
 
 If an agent appointed to collect a debt 
 is indebted to the debtor, the latter can- 
 not offset against the debt due from him 
 to the principal claims against the agent. 
 Wilson V. Codman, 3 Cranch. (U. S.) 
 193, 204. 
 
 Where a broker sells goods without 
 disclosing the name of his principal, inas- 
 
 much as he acts beyond the scope of his 
 authority, the buyer cannot set off a debt 
 due from the broker to him against the 
 demand for the goods made by the prin- 
 ci'pal. Evans v. Wain, 71 Pa. St. 69; 
 Graham v. Duckwall, 8 Bush (Ky.), 12; 
 Baring v. Corrie, 2 B. & Aid. 143. 
 
 A party who is authorized lo sell goods 
 for another under a written contract not 
 recorded, and is bound by the terms 
 thereof to turn over the proceeds, wheth- 
 er in cash or in notes, to his principal, 
 and who is after certain specified dates 
 to become liable for any unsold goods, 
 does not prior to that date hold the 
 goods under a conditional sale; nor can 
 a purchaser insist upon an offset of any 
 claim he may hold against the agent. 
 Conable v. Lynch, 45 Iowa, 84. 
 
 A woman doing business, with her 
 husband as agent, authorized him to sell 
 certain notes belonging to her in order 
 to raise money to use in the business. 
 He indorsed the notes as agent, and then 
 sold them to a customer to whom he was 
 individually indebted, and without his 
 wife's permission he allowed the pur- 
 chaser to apply part of the purchase- 
 price upon his debt. Held, (i) that the 
 indorsement was notice enough to put 
 the purchaser on inquiry as to his author- 
 ity to make such application; (2) that in 
 an action by the wife against the pur- 
 chaser to recover back the mojney so ap- 
 plied, a contract between the husband 
 and the purchaser, with which the wife 
 was not shown to be connected and 
 which provided for the payment of the 
 husband's debt by allowances in transac- 
 tions with him in the course of the wife's 
 business, was wholly irrelevant to the is- 
 sue. The agent could not charge his 
 wife's business with this debt without 
 showing her assent to this arrangement; , 
 and if he could, this application of money 
 was not an allowance within the terms 
 of the contract. McBain v. Seligman, 
 58 Mich. 294. 
 
 From 1871 until April i, 1875, P. was 
 engaged in manufacturing glassware un- 
 der the name of the L. Glass Co. April 
 I, 1875, T. took possession of the glass- 
 works under a mortgage from P., and ap- 
 pointed him his agent. From that time j, - 
 carried on the business under the name of 
 the L. Glass Co. In 1877 P. told one S., 
 the plaintiff's agent, that if he would se- 
 cure an order for the manufacture of bot- 
 tles bytheL. Glass Co., the plaintiff's note 
 against him should be paid out of the pro- 
 
 426 
 
Principal's Sights as to Third Parties. AGENCY. 
 
 May Follow his Property. 
 
 If the character of the agent is equivocal, if he is known to be 
 in the habit of selling sometimes as principal and sometimes as 
 agent, a purchaser of the agent is bound to inquire in what char- 
 ■acter he acts, in the transaction ; and if he makes no inquiry and it 
 should turn out that he has bought of an undisclosed principal, 
 iie will be denied the benefit of a set-ofT.* 
 
 May Recover Mispaid Money. — Where a man pays money by his 
 agent which ought not to have been paid, either the agent or the 
 principal may bring an action to recover it back.* 
 
 Principal may Follow his Property. — Where a principal has 
 been defrauded by his agent, as by an illegal sale, the principal 
 may follow and recover his property or the proceeds thereof, even 
 in the hands of third parties, unless such party be a bona-fide 
 purchaser for value and without notice.^ 
 
 ■ceeds of the order. S. did not know that T. 
 was carrying on the business, and he did 
 not know of P.'s promise to the plaintiff, 
 and had never authorized P. to pay his 
 private debts from the proceeds of the 
 business. One W. claimed the funds by 
 virtue of a draft from P. as agent of T. 
 Held, the fact that P. agreed to pay 
 this debt from the proceeds of goods 
 sold the trustees can make no differ- 
 ence. T. , to whom the goods belonged, 
 gave P. no authority to make such an 
 agreement, and he had no knowledge 
 that he did so. P.'s unauthorized agree- 
 ment could not change the title to the 
 goods which he sold the trustees. Rice 
 V. Glass Co., 60 N. H. 195. 
 
 1. Miller v. Lea, 35 Md. 396; s. c, 6 
 Am. Rep. 417; Stewart v. Woodward, 
 '50 Vt. 78; and see V Mitchell v. Dall, 2 
 Harris. & G. (Md.) 159; Evans v. Wain, 
 71 Pa. St. 6g; Voss v. Robertson. 46 
 Ala. 483; Richardson v. Farmer, 36 Mo. 
 35; Hurlbut V. Pac. Ins. Co., 2 Sumn. 
 '(U. S.) 471; Boyson v. Coles, 6 M. & S. 
 
 14- 
 
 S. Farmers', etc.. Bank v. King, 57 
 Pa. St. 202; Sheffer v. Montgomery, 65 
 Pa. St. 329; United States v. Bartlett, 
 Dav. (U. S.) 9. 
 
 3. Conard v. All. Ins. Co., i Pet. 
 (U. S.) 386; Hourquebie v. Girard, 2 
 Wash. (U. S.) 212; Dow v. Berry, iS Fed. 
 Repr. 121; III. Trust & Sav. Bank v. 
 First Nat. Bank, 15 Fed. Repr. 858; South 
 Park Con;im'rs. ». Kerr, 13 Fed. Repr, 
 502; German Sav, Inst. v. Adae, 8 Fed. 
 Repr. 106; Jn re Jordan, 2 Fed. Repr. 
 319; Veil V. Mitchell, 4 Wash. (U. S.) 
 105; United States z/. State Bank. 96 U. 
 S. 30; Riley v. Wheeler, 44 Vt. 189; 
 Thompson v. Perkins, 3 Mason (U. S.), 
 232; Le Breton v. Pierce, 2 Allen 
 (Mass.), 8; Chesterfield Man. Co. v. De- 
 hon, 5 Pick. (Mass.) 7; Kelley v. Munson, 
 
 7 Mass. 319; Kingman v. Pierce, 17 
 Mass. 247; Farmers', etc. .Banks'. King, 
 57 Pa. St. 202; Sheffer I/. Montgomery, 
 65 Pa. St. 329; Frazier v. Erie Bank, 8 
 W. & S. (Pa.) 18; Green v. Haskell. 5 R. 
 I. 447; Thompson v. Barnum, 49 Iowa, 
 392; Bertholf v. Quinlan, 68 111. 297; 
 Norris v. Taylor, 49 111. 17; Hall v. 
 Sprigg, 7 Martin (La.). 245; Boyd z/. Mc- 
 Lean, I John Ch. (N. Y.) 582; Meiggs v. 
 Meiggs, 15 Hun (N. Y.), 453; Burnhdm 
 V. Holt, 14 N. H. 367; Hill V. Coolidge, 
 33 Ark. 621; Atkinson z;. Ward. 2 South 
 W. Repr. (Ark.) 77; Arnold v. Robins, 5 
 Atl. Repr. (N.J.) 173; Riehl v. Evans- 
 ville Foundry Co., 3 N. E. Repr. (Ind.) 
 633; Third Nat. Bank v. Stillwater Gas 
 Co., 30 N. W. Repr. (Minn.) 440; Neely 
 V. Rood, 19 N. W. Repr. (Mich.) 920; 
 Peak V. EUicott, i Pac. Repr. (Kans.) 
 
 499- 
 
 Or unless it is so mixed with other 
 property that it can no more be distin- 
 guished. Conard v. Atl. Ins. Co., i Pet. 
 (U. S.) 386. 
 
 The relation between a. commission 
 agent for the sale of goods and his prin- 
 cipal is fiduciary; and in the absence of 
 an express agreement or one implied by 
 the course of business or dealing between 
 them, giving the former the right to ap- 
 priate to his own use the proceeds of 
 sales of his principal's goods, such pro- 
 ceeds belong to the principal, subject to 
 the lien of the agent for commissions, 
 advances, and other charges, and the 
 principal may follow and reclaim them so 
 long as the identity is not lost, subject to 
 the rights of a bona-fide purchaser for 
 value, 
 
 Where a iirm of commission mer- 
 chants which was insolvent, for the pur- 
 pose of protecting its principals opened 
 a bank account in the name of the firm, 
 with the word "agent " added, the bank 
 
 437 
 
Principal's Eights as to Third Parties. AGENCY. Eights of Agent against Principal.. 
 
 For Torts. — A principal has a right of action against third parties 
 for torts committed either alone or in collusion with the agent. ^ 
 
 16. Rights of Agent against Principal, — Lien. — In cases of agency^ 
 there generally exists a particular right of lien in the agent for alL 
 his commissions, expenditures, advances, and services in and about 
 the property or thing intrusted to his agency, whenever they were 
 proper or necessary or incident thereto.* 
 
 having knowledge of such purpose, and 
 deposited to the credit of that account 
 the proceeds of sales of goods of a prin- 
 cipal, and on settlement gave to him a 
 check for the balance belonging to him, 
 held, that the bank had no right to 
 charge against the account an individual 
 debt of the firm, even with its consent. 
 Also held, that the right of the princi- 
 pal was not affected by the fact that the 
 agents used the specific proceeds of the 
 sales and deposited other moneys to make 
 up the amount so used; that such de- 
 posits, being substituted for the original 
 proceeds, became impressed with the 
 trust, and subject to the same equities. 
 Also held, it was immaterial that the 
 proceeds of sales of goods belonging to 
 other principals were deposited in the 
 same account; that, in the absence of 
 proof to the contrary, the presumption 
 was that the fund was adequate to protect 
 all interests, and the check operated as a 
 setting apart of so much to satisfy the 
 claim of the principal to whom it was 
 delivered. Baker v. N. Y. Nat. Exch. 
 Bank, too N. Y. 31. 
 
 It can make no difference whether the 
 conversion is made at the time of the 
 contract of purchase or afterwards. So 
 long as the rights of innocent purchasers 
 have not intervened, the only question is 
 the identity of the trust fund. Preston 
 V. McMillan, 58 Ala. 84 ; Lehman v. 
 Lewis, 62 Ala. 129; Burks v. Burks, 7 
 Baxt. (Tenn.) 353; Turner v. Pertigrew, 
 6 Humph. (Tenn.) 438; Haines ». Haines, 
 54 111. 74 ; Dyer v. Jacoway, 42 Ark. 
 186. 
 
 Where a factor keeps the funds arising 
 from his business, as such, separate from 
 his individual funds, by depositing in 
 bank to a separate ' ' brokerage account " 
 the drafts received for goods sold for his 
 customers, that these drafts include his 
 commissions on such sales is not such 
 a mingling of his own with the trust fund 
 as will prevent the owner of the goods 
 sold from following the fund, nor such as 
 will enable the factor's general creditors 
 to reach it by attachment. Richardson 
 V. St. Louis Nat. Bank, lo Mo. App. 
 246. 
 
 The principal may recover the proceeds 
 
 of his property, as a bill of exchange in- 
 dorsed to a purchasing broker and dis- 
 counted by him shortly before his death;, 
 but the burden of identification is upon 
 him. Boisblanc's Succession, 32 La. 
 Ann. 109. 
 
 1. Proudfoot V. Wightman, 78 111. 553;. 
 Mackintosh v. Eliot Bank, 123 Mass. 
 393; White u, Dolliver. 113 Mass. 400; 
 Southern Exp. Co. v. Palmer, 48 Ga. 85. 
 Compare Mason v. Bauman, 62 111. 76. 
 
 2. Story on Agency. § 373; Lovett v.. 
 Brown, 40 N. H. 511; Wilson v. Martin, 
 40 N. H. 88; Muller v. Pondir, 55 N. Y. 
 326; Gregory v. Stryker, 2 Denio(N.Y.), 
 638 ; Moore v. Hitchcock. 4 Wend. 
 (N. Y.) 292; Schmidt v. Blood, g Wend. 
 (N. Y.) 268; s.c, 24 Am. Dec. 143; Mor- 
 gan V. Congdon,4N. Y. 551; Farringtoa 
 V. cMeek, 30 Miss. 578; s. c, 77 Am. 
 Dec. 627; Nevan v. Roup, 8 Iowa, 207; 
 U. S. Exp. Co. V. Haines, 67 111. 140; 
 Mclntyre v. Carver, 2 W. & S. 
 (Pa.) 392 ; s. c. , 37 Am. Dec. 519; Bas- 
 table V. Denegree, 22 La. Ann. 124. 
 
 Unless he waives his right to it. 
 Chandler v. Belden, 18 Johns. (N. Y.> 
 157; s. c, 9 Am. Dec. 193; Fieldings v. 
 Mills, 2 Bosw. (N. Y.)489; Trusts. Pirs- 
 son. I Hilt. (N. Y.) 293; s. c, 3 Abb. Pr. 
 (N. Y.) 84; Oakley v. Crenshaw, 4 Cow. 
 (N, Y.) 250; Bailey v. Adams, 14 Wend. 
 (N. Y.) 201; Williams v. Littlefield, 12 
 Wend. (N. Y.) 362; Ferguson v. Furnace- 
 Co.. 9 Wend. (N. Y.) 345; Look v. Cpm- 
 stock, 15 Wend. (N. Y.) 244; McFarland 
 V. Wheeler, 26 Wend. (N. Y. 467 1 
 Grinnell v. Cook, 3 Hill (N. Y.), 485;, 
 s. c, 38 Am. Dec. 663; Sawyer v. Loril- 
 lard, 48 Ala. 332; Pickett v. Bullock, 52 
 N. H'. 354; Woollen Mfg. Co. v. Hunt- 
 ley, 8 N. H. 441; Bowman v. Hilton, 11 
 Ohio, 303 ; Harkness v. Toulmin, 25 
 Mich. 80; Perkins v Boardman, 14 Gray 
 (Mass.), 481; Way v. Davidson, 12 Gray 
 (Mass.). 465 ; Holly v. Huggeford. 8, 
 Pick. (Mass ) 76; Sears v. Wills, 4 Allen 
 (Mass.), 212; jarvis v. Rogers, 15 Mass. 
 389 ; Hapgood v. Batchellor, 4 Mete. 
 (Mass.) 573; Bower's Appeal. 68 Pa. St. 
 126; McDevitt V. Hays, 70 Pa. St. 373; 
 Downer v. Bank, Wright (Ohio), 477;. 
 Eastman v. Avery, 23 Me. 248; Collins 
 ■ij. Buck, 63 Me. 459; Robinson v. Larra- 
 
 428 
 
Agent's Eights against Principal. AGENCY. 
 
 Batiflcation. 
 
 Does not Impair Right to Sue. — The agent's right to a lien on 
 the goods of his principal in his possession does not innpair his 
 right of action against the principal for commissions, expenditures, 
 advances, and services, and an action against the principal will not 
 invalidate the lien.^ 
 
 17. Ratification. — Ratified Acts have Same Effect as those duly 
 Authorized. — An unauthorized act by one assuming to be an 
 agent for another may be ratified by the principal, and such rati- 
 fication gives to the act the same effect as if it were previously 
 duly authorized. This-applies to corporations as well as individ- 
 uals* 
 
 bee, 63 Me. 116; Foltz w. Peters, 16 Ind. 
 244; Jones V. Vantress, 23 Ind. 533; 
 Gaines v. Casey, 10 Bush (Ky.), 92; 
 Ducker v. Gray, 3 J. J. Marsh ((Cy.), 
 163; Kirkham v. Boston, 67 111. sgg; 
 Randel'w. Brown, 2 How. ((j. S.) 406; 
 Gilman v. Brown, i Mason (U. S.), 191. 
 To entitle the agent to a lien the agent 
 must have received the goods on which 
 the lien is supposed to attach by consent 
 of the principal. Possession acquired 
 by a mere voluntary service rendered 
 gives no lien. Van Buskirk v. Purinton, 
 2 Hall (N. Y.), 561; Robinson v. Baker, 
 5 Cush. (Mass.) 137; Clark v. R. R., 9 
 Gray (Mass.), 231; Briggs v. R. R., 6 
 Allen (Mass.), 246; Jarvis v. Rogers, 15 
 Mass. 389; Preston v. Neale, 12 Gray 
 (Mass.), 222; Pearce z;. Roberts, 27 Mo. 
 179. 
 
 1. Consequa v. Fanning, 3 Johns. Ch. 
 fN. Y.) 587; Hoy V. Reade, i Sweeney 
 (N. Y.) 626; Corlies v. Cummings, 6 Cow. 
 (N. Y.) i8i; Colley v. Merrill, 6 Greenl. 
 (Me.) 50; Stocking v. Page, i Day 
 (Conn.). 519; Upham v. Lefavour, 11 
 Mete. (Mass.) 174; Beckwith v. Sibley, 
 II Pick. (Mass.) 482; Burrill v. Phillips, 
 I Gall. (U. S.) 360; Peisch v. Dickson, i 
 Mason (U. S.), 10. 
 
 For liens in general, see Liens; for 
 special liens see Attorneys, Auction- 
 eers; Bankers; Brokers; Carriers; 
 Commission Agents; Shipping. 
 
 2. Sentell v. Kennedy, 29 La. Ann. 
 679; Oliver v. Johnson, 24 La. Ann. 460; 
 Rich i;. State Nat. Bank, 7 Neb. 201; 
 Lee V. West, 47 Ga. 311; Bray v. Gunn, 
 53 Ga. 144; Weaver v. Ogletree, 39 Ga. 
 586; Cairnes v. Bleecker, 12 Johns. 
 (N. Y.) 300; Peterson v. Mayor of New 
 York. 17 N. Y. 449; Rogers v. Knee- 
 land. 10 Wend. (N. Y.) 218; Watson v. 
 Gray, 4 Abb. App. Dec. (N. Y ) 540; 
 Woodward v. Suydam, 11 Ohio, 360; 
 Kelsey v. Nat. Bank of Crawford, 69 Pa. 
 St. 426; Salem Bank ». Gloucester Bank, 
 17 Mass. i; Frothingham v. Haley, 3 
 Mass. 68; Lent v. Padleford, 10 Mass. 
 
 230; Fisher v. Willard, 13 Mass. :^-o; 
 Bulkley v. Derby Fishing Co., 2 Conci. 
 252; s. c, 7 Am. Dec. 271; Church 
 V. Sterling, 16 Conn. 388; Baker v. 
 Cotter, 45 Me. 236; Wilson v. Dame, 
 58 N. H. 392; Despatch Line v. Bel- 
 lamy Mfg. Co., 12 N. H. 205; s. c, 37 
 Am. Dec. 203; Brooks v. Fletcher, 56 
 Vt. 624; Whitwell V. Warner. 20 Vt. 425; 
 Bigelow z/. Denison, 23 Vt. 564; St. Louis 
 Nat. Stock Yard v. O'Reilly, 85 III. 546; 
 Mason v. Caldwell. 5 Gil. (111.) 196; s. c, 
 
 48 Am. Dec. 330; City of Detroit v. Jack- 
 son, I Doug. (Mich.) 106; Hall v. Chi- 
 cago, etc., R. Co., 48 Wis. 317; Stewart 
 V. Mather, 32 Wis. 344; Berger's Ap- 
 peal, 96 Pa. St. 443; Nesbilt v. Helser, 
 
 49 Mo. 383; Summerville z/. Hannibal R. 
 Co., 62 Mo. 391; Golson v. Ebert, 52 
 Mo. 260; Goss V. Stevens, 32 Minn. 472; 
 Wisconsin v. Torinus. 26 Minn, i; Shef- 
 field V. Ladue, 16 Minn. 388; Clealand 
 V. Walker, 11 Ala. 1058; Chapman v. 
 Lee, 47 Ala. 143; Downer v. Morrison, 
 2 Gratt. (Va.) 237; State v. Shaw, 28 
 Iowa 67; Blanchardz'. Waite, 28 Me. 51; 
 Gulick V. Grover, 33 N. J. L. 463; Clark 
 V. Van Riemsdyk. 9 Cranch. (U. S.) 153; 
 Fleckner v. U. S. Bank, 8 Wheat. (U. S.) 
 338; Drakeleyz-. Gregg, 8 Wall,(U. S.)242. 
 
 One H., as -the agent of some one not 
 named in the contract, entered into a 
 written contract with the plaintiffs for 
 the construction of a railway, under cir 
 cumstances which justified the plaintiff 
 in believing that H. was contracting as 
 the agent of the defending corporation. 
 The defendant corporation by subsequent 
 acts recognized and ratified the contract 
 as its own. Held, that it could not after- 
 wards avoid liabilitj' under the contract, 
 on the ground that H. had not been ap- 
 pointed agent of the corporation by its 
 proper board of directors, and that he 
 was not an officer of the company sus- 
 taining such relations to it that the law 
 will imply his authority to bind it as its 
 agent. Flynn v. Des Moines, etc., R. 
 Co., 63 Iowa, 492. 
 
 429 
 
Batification, 
 
 AGENCY. 
 
 Voidable or Vcid. 
 
 Must be Voidable. — The act to be ratified must be voidable merely 
 and not absolutely void. A principal cannot ratify an act which 
 he could not have authorized in the first instance. ^ 
 
 The ratification of an agent's acts, with 
 knowledge of the circumstances, relates 
 back to the time when such acts were 
 performed, and binds the principal the 
 same as if authority had been given in 
 advance. Story Agency (8th Ed.), §§ 
 239, 242; U. S. Exp. Co. V. Rawson, 
 106 Ind. 215; Louisville, etc., R. Co. 
 ■V. McVay, 98 Ind. 391; s. c, 49 Am. 
 Rep. 770; Hammond v. Hinniss, 21 
 Mich. 374; s. c, 4 Am. Rep. 490; Davis 
 V. School Distr., 44 N. H. 399; Low v. 
 Connecticut, etc., R. Co., 46 N". H. 284; 
 Grant v. Beard, 50 N. H. 139; Despatch 
 Line v. Bellamy Mfg. Co., 12 N. H. 205; 
 s. c, 37 Am. Dec. 203; Weed v. Car- 
 penter, 4 Wend. (N. Y.) 219; Towle v. 
 Stevenson, i Johns. Cas. (N. Y.) no; 
 Brower v. Lewis, 19 Barb. (N. Y.) 574; 
 Smith V. Tracy, 36 N. Y. 79; Lawrence 
 ■V. Taylor, 5 Hill (N. Y.), 107; Hankins 
 •V. Baker, 46 N. Y. 666; Como v. Port 
 Henry Co., 12 Barb. (N. Y.) 27; Rey- 
 nolds V. Dothard, 11 Ala. 531; McGowen 
 ■V. Garrard, 2 Stew. (Ala.) 479; Lee v. 
 Fontaine, 10 Ala. 755; s. c, 44 Am. Dec. 
 505; Cox V. Robinson, 2 Stew. & P. 
 (Ala.) 91; Brigham v. Peters, I Gray 
 (Mass.), 139; Mclntyre v. Park, 11 Gray 
 (Mass.), 102; Williams v. Mitchell, 17 
 Mass. 98; Frothingham v. Haley, 3 
 Mass. 68; Lent v. Padelford, 10 Mass. 
 230, 236; Odiorne v. Maxcy, 15 Mass. 
 39; Fisher v. Willard, 13 Mass. 379; 
 Forsyth v. Day, 41 Me. 382; Cowan v. 
 Wheeler, 31 Me. 439; Lowry w. Harris, 
 12 Minn. 255; Gbss v. Stevens, 32 Minn. 
 472; Pollock V. Cohen, 32 Ohio St. 514; 
 Kehlor v, Kemble, 26 La. Ann. 713; 
 Sentell v. Kennedy, 29 La. Ann. 679; 
 Blood worth v. Jacobs, 2 La. Ann. 25; 
 Dunbar u. BuUard, 2 La. Ann. 810; 
 Overby v. Overby, 18 La. Ann. 546; 
 Meyers v. Simmons, 19 La. Ann. 370; 
 Roby V. Cossitt, 78 111. 638; Goodell v. 
 Woodruff, 20 111. 191; Ohio, etc., R. Co, 
 ■V. Middleton, 20 111. 629; Union, etc., 
 Co. V. Rocky Mt. Bank, 2 Colo. 248; 
 Southern Exp. Co. v. Palmer, 48 Ga. 85; 
 ' Perry v. Hudson, 10 Ga. 362; Kelsey v. 
 Nat. Bank of Crawford, 69 Pa. St. 426; 
 Workman v. Guthrie, 29 Pa. St. 495; 
 s c. , 72 Am. Dec. 654; Vanhorne v. 
 Frick, 6 S. & R. (Pa.) go; Gulick -u. 
 Grover, 33 N. J. L. 463; Vincent v. 
 Rather, 31 Tex. 77; Brock v. Jones, 16 
 Tex. 461; Irons v. Reyburn, 11 Ark. 
 378; Bell V. Ryerson, II Iowa, 233; s. c, 
 77 hm. Dec. 142; Coffin v. Gephart, 18 
 
 Iowa, 256; Barbour v. Craig. 6 Lift. 
 (Ky.) 213; Baker v. Byrne, 10 Miss. 193; 
 Kountz V. Price, 40 Miss. 341; Ruggles 
 V. Washington Co., 3 Mo. 496; Little c 
 Stettheimer, 13 Mo. 572; Weiseiger v. 
 Wheeler, 14 Wis. loi; Brown v. La 
 Crosse City, etc., Co., 2i Wis. 51; 
 Dralaely v. Gregg, 8 Wall. (U. S.) 242; 
 Courcier v. Ritter, 4 Wash. (U. S.) 549; 
 Den V. Wright, Pet. U. S. C. Ct. 64; 
 Clark V. Van Riemsdyk,-9 Cranch. (U. S.) 
 153; Bronson v. Chappell, 12 Wall. (U. 
 S.) 681. 
 
 Where the local agent of an express 
 company, without authority to accept 
 partial payment upon a draft held .by 
 iiim for collection, receives such payment 
 and holds the same subject to instruc- 
 tions from the general agent, a ratifica- 
 tion by such general agent dates back 
 and binds the company the same as if 
 authority to receive the partial payment 
 had been given in advance, and renders 
 the company liable for the misappropria- 
 tion of the money by the local agent. 
 U. S. Expr. Co. V. Rawson, 106 Ind. 215. 
 
 The ratification of a contract originally 
 made by one- without authority, will re- 
 lieve the agent from all responsibility if 
 the contract purports to be made by him 
 merely as agent, although without such 
 ratification he would be liable to the 
 other party and also in some cases to 
 the principal. Berger's App., 96 Pa. St. 
 443- 
 
 1. De Cuir v. Le Jeune, 15 La. Ann. 
 569; Harris'on v. McHenry, g Ga. 164; 
 s. c, 52 Am, Dec. 435; State v. Matthis, 
 I Hill (S. Car,). 37; O'Connor v. Arnold, 
 53 Ind. 203; Price v. Grand Rapids, etc., 
 R. Co., 13 Ind. 58; Richardson v. Payne, 
 114 Mass. 429; Sceery v. Springfield. 112 
 Mass. 512; Armitage v. Widoe, 36 Mich. 
 124; McCracken v. City of San Francisco, 
 16 Cal. 5gi; Supervisors v. Arrighi. 54 
 Miss. 668; School Dist. v. .(Etna Ins. 
 Co., 62 Me. 330; Fitzpatrick v. School 
 Comm'rs, 7 Humph. (Tenn.) 224; s. c, 
 46 Am. Dec. 76. 
 
 Where a fraud is of such a character as 
 to involve a crime, the ratification of the 
 act from which it springs is opposed to 
 public policy and cannot be permitted. 
 When the indorsement of a note is forged, 
 such indorsement Cannot be ratified by 
 the person whose name is forged, as the 
 act is criminal and against public policy. 
 Shisler v. Vandike, 92 Pa. St. 447; s. c;, 
 37 Am. Rep. 702; McHugh v. Schuylkill, 
 
 430 
 
Batifioation. 
 
 A GENCY. Act to be done in Name of Principal, 
 
 Act must be done in Name of Principal. — Where the party making 
 the contract had no authority to contract for the third person, 
 and did not profess, at the time, to act for him, the subsequent 
 assent of such third party to be bound as principal has no opera- 
 tion. A ratification is only effectual when the act is done by a 
 person professedly acting as the agent of the party sought to be 
 charged as principal. * 
 
 67 Pa. St. 391; s. c, 5 Am. Rep. 445; 
 Workman v. Wright, 33 Ohio. St. 405; 
 s. c. 31 Am. Rep. 546. 
 
 When the directors of a corporation 
 undertake to enter into a contract which 
 is beyond the powers of a corporation, 
 such contract is void and cannot be rati- 
 fied. Ashbury, etc., Co. v. Riche, L. R. 
 7 H. L. 653. 
 
 The government Is liable for the illegal 
 acts of its agents when expressly ratified. 
 Wiggins V. U. S., 3 Ct. of CI. 412. 
 
 1. Collins V. Waggoner, Breese (111.), 
 26; Beveridge v. Rawson, 51 111. 504; 
 Grund v. Van Vleck, 69 111. 478; Roby 
 V. Cossett, 78 111. 638; Forsyth v. Day, 
 46 Me. 176; Crowder v. Reed, 80 Ind. i; 
 Harrison v. Mitchell, 13 La. Ann. 260; 
 Harper v. Devene, 10 La. Ann. 724; Col- 
 lins V. Suau, 7 Robt. (N. Y.)623; Fellows 
 V. Comm'rs, 36 Barb. (N. Y.)655; Far- 
 mers' L. & T. Co. V. Walworth, i N. Y. 
 435; Brainerd v. Dunning, 30 N. Y. 211; 
 Vanderbilt v. Turnpike Co , 2 N. Y. 479; 
 s. c, 51 Am. Dec. 315; Alldred v. Bray, 
 41 Mo. 484. 
 
 One cannot be held to have ratified the 
 unauthorized acts of another as his agent 
 where there was no agency. Hammers- 
 lough V. Cheatham, 84 Mo. 13. 
 
 Where one has wrongfully taken the 
 property of another and sold it, not as 
 agent, but on his own account, mere si- 
 lence upon the part of the owner does not 
 confirm the sale; the confirmation must 
 rest upon some consideration upholding 
 it, or upon an estoppel. Hamlin v. Sears, 
 82 N. Y. 329; Workman v Wright, 33 
 Ohio St. 405; s. c. 31 Am. Rep. 546. 
 
 A mere promise to the obligee by a 
 party whose name has been signed to a 
 note by the principal therein, without the 
 knowledge or consent of the promissor 
 to pay the note, or a part of it, no pre- 
 vious relation of principal and agent ex- 
 isting between the parties, is without con- 
 sideration and void. Sucli a promise 
 cannot be regarded as a ratification of the 
 act, and the note as to the promissor is 
 invalid. Owsley v. Phillips, 78 Ky. 517; 
 s. c, 39 Am. Rep. 258; Shisler v. Van- 
 dike, 92 Pa. St. 447; s. c. 37 Am. Rep. 
 702; McHugh V. Schuylkill Co., 67 Pa. 
 St. 391; s. c, 5 Am. Rep. 445; Brook v. 
 
 Hook, L. R. 6 Exch. 99; s. c 31 Am. 
 Rep. 549, note; Mackenzie v. British Linen 
 Co., L. R. 6 App. Cas. 82. See White- 
 ford V. Monroe, 17 Md. 135; Walters v. 
 Monroe, 17 Md. 154; s. c, 77 Am. Dec. 
 328; Fenny v. Taylor, 33 Md. 323; Du- 
 conge V. Forgay, 15 La. Ann. 37. 
 
 A voluntary payment of a certain sum 
 to indemnify for expenses incurred in a 
 service voluntarily rendered is not a rati- 
 fication which makes the payee the agent 
 of the principal as regards such services. 
 Camp V. U. S., 113 U. S. 648. 
 
 But where A without authority em- 
 powered B to receive money for C, it was 
 held that C might ratify A's actions and 
 hold him responsible for the money; B 
 being regarded as A's agent. Strickland 
 •V. Hudson, 55 Miss. 235. 
 
 It has been held that the ratification of 
 a forgery, like the ratification of any other 
 unauthorized contract will give the forged 
 instrument the same power as if the sig- 
 nature had been duly authorized. Howard 
 V. Duncan, 3 Lans. (N. Y.) 174; Green- 
 field Bank v. Crafts, 4 Allen (Mass.), 447; 
 Wellington v. Jackson, 121 Mass. 157; 
 Negley v. Linsday, 67 Pa. St. 217; s. c, 
 5 Am. Rep. 427; Hefner i;. Vandolah, 62 
 111. 4S3; s. c, 14 Am. Rep. 106; Thorn 
 V. Bell, Lalor's Supl. (N. Y.) 430. 
 
 Other cases, however, hold that such 
 ratification can work only as an estoppel 
 where a third party acting upon the 
 strength of the ratification would suffer 
 detriment, or where the ratification was 
 given for a consideration. Crout v. De 
 Wolf, I R. I. 393; Forsyth v. Day, 46 
 Me. 177; Corset v. Paul, 41 N. H. 24; 
 s. c, 77 Am. Dec. 753; Union Bank v. 
 Middlebrook, 33 Conn. 95; Fitzpatrick v. 
 School Comm'rs, 7 Humph. (Tenn.) 224; 
 s. c, 46 Am. Dec. 76; Livrigs v. Wiler, 
 32 III. 387; Charles River Bank v. Davis, 
 100 Mass; 413. And see Rudd v. Mat- 
 thews, 79 Ky. '479; s. c, 42 Am. Rep. 
 231, where defendant, whose name had 
 been forged as surety on a. note, on be- 
 ing shown the note by the owner admitted 
 the signature was genuine, and promised 
 to pay the note, supposing he had signed 
 the note. The owner was thus induced 
 to forbear suit until the maker became 
 insolvent. Held, that the defendant was 
 
 431 
 
Bati&cation. 
 
 AGENCY. 
 
 Knowledge of Facts Kecessaiy,. 
 
 Principal must be in Existence. — The person in whose behalf the 
 act is done must be in existence at the time of its performance, 
 except in cases governed by rules of equity.^ 
 
 Must have Knowledge of all Facts. — The person who undertakes 
 to ratify must do so with a knowledge of all material circum- 
 stances, or with an intent to take all liability without such knowl- 
 edge.'-* 
 
 estopped from setting up that his signa- 
 ture was forged. S. P. Heffren v. Daw- 
 son, 63 111. 93. In Casco Bank v. Keene, 
 53 Me. 103, it was held that one who 
 adopts a signature knowing it to be 
 forged is estopped from denying its gen- 
 uineness, when upon the strength of 
 such adoption the bank refrained from 
 proceedings against the forger. 
 
 In Woodruff v. Munroe, 33 Md. 147, it 
 ■was held that if the party whose name is 
 forged adopted the note prior to its 
 maturity, and by such adoption assisted 
 in its negotiation, he would be estopped 
 from setting up the forgery in a suit by a 
 bona-fide holder. But any admission made 
 subsequent to the maturity of the note 
 would not be evidence that he had author- 
 ized the indorsement of his name thereon. 
 
 1. , Stainsby v. Frazier, etc., Co., 3 
 Daly (N. Y.), 98; Marchand v. Loan 
 Assoc. 26 La. Ann. 389. 
 
 So where an agent had authority from 
 a firm to advance money for the pur- 
 chase of bills and notes, and after a 
 change in the firm by the admission of 
 new partners, one of the new partners 
 received and receipted for bills and notes 
 so bought, and where the proceeds were 
 used in the new firm's business, it was 
 held that these facts were sufficient to au- 
 thorize the agent in believing that the 
 previous arrangement was confirmed by 
 the new firm, and to hold the new firm 
 liable on such advances. Callanan v. 
 Van Vleck, 36 Barb. (N. Y.) 324. See 
 Sinclair v. Galland, 8 Daly (N. Y.), 508. 
 
 An incorporated company will be bound 
 by the agreement of a majority of its in- 
 dividual members acting before incorpo- 
 ration on its behalf, when the company 
 ' has received the full benefit of the con- 
 sideration for the agreement. Bell's Gap 
 R. Co. V. Christy, 79 Pa. St. 54; Grape 
 Sugar, etc., Co. v. Small, 40 Md. 395; 46 
 N. H. 284; 28 Vt. 401. Compare Safety 
 Dep. L. I. Co. V. Smith, 65 111. 309; 
 Rockford, etc., R. Co. v. Sage, 65 111. 
 328; Western Screw, etc., Co. w. Consley, 
 72 III. 531; 27 Conn. 170; 31 Md. 59. 
 
 Where a corporation at the date of a 
 contract had not filed its articles of asso- 
 ciation, as required by statute, but subse- 
 quently ratified the contract by recogniz- 
 
 ing and treating it as valid, this made it. 
 in all respects what it would have been 
 if the requisite corporate power had ex- 
 isted when it was entered into. Whitney 
 V. Wyman, n Otto (U. S.). 392. 
 
 A lease was taken by A in trust for a. 
 corporation thereafter to be formed. 
 Held, that it created on the formation of 
 such corporation, and upon its receiving 
 an assignment of such lease, wilh knowl- 
 edge of the terms upon which it was exe- 
 cuted and received from the lessor A, a 
 liability in equity, on the part of such, 
 corporation, to pay the rent to the lessor. 
 Van Schaick v. Third Ave. R. Co., 38 N. 
 Y. 346. See also Lorillard .v. Lorillard, 
 4Abb. Pr. (N. Y.)2io; Borrell !». Newell. 
 3 Daly (N. Y.), 233; NicoU v. Burke. 78- 
 N. Y. 580; Pittsburg, etc., R. Co. v. Gaz- 
 zan, 32 Pa. St. 340; Rockford, etc., R, 
 Co. V. Sage, 65 III. 328. 
 
 2. Roberts v. Rumley, 58 Iowa, 301;, 
 Tidrick v. Rice, 13 Iowa, 214; White v. 
 Morgan, 42 Iowa, 113; Potter v. Harvey, 
 30 Iowa, 502; Bryant v. Moore, 26 Me. 
 84; s. c, 45 Am. Dec. 96; Morrell v. Dix- 
 field, 30 Me. 157; Hovey v. Brown, 59 N. 
 H. 114; Grant v. Beard, 50 N. H. 139-, 
 Lester I'. Kinne, 37 Conn. 9; Thacher v. 
 Pray, 113 Mass. 2gi; Meyer w. Baldwin, 
 52 Mass. 263; Dickinson v. Conway, 12 
 Allen (Mass.), 487; Coombs v. Scott, 12 
 Allen (Mass.), 493; Mclntyre v. Park, n 
 Gray (Mass.). 102; Dean v. Bassett, 57 
 Cal. 640; Dupont v. Wertheman, 10 Cal. 
 354; Billings V. Morrow, 7 Cal. 171; 
 s. c, 68 Am. Dec. 235; Miller v. 
 Board of Education, 44 Cal. 166; Thomp- 
 son V. Craig, 16 Abb. Pr. N. S. (N. Y.) 
 29; Brass v. Worth, 40 Barb. (N. Y.) 648; 
 Roach V. Coe, i E. D. Smith (N. Y.), 
 175; Hoffman v. Livingston, 46 N. Y. 
 Super. Ct. 552; Craighead v, Peterson, 72 
 N. Y. 279; Rowan v. Hyatt, 45 N. Y. 
 138; Seymour v. Wyckoff, 10 N. Y. 213; 
 Ritch V. Smith, 82 N. Y. 627; People v. 
 Schuyler. 17 Hun (N. Y.), 106; Pittsburg, 
 etc., R. Co. V. Gazzan, 32 Pa. Si. 340; 
 Kerr z). Sharp, 83 IH. 199; Stein z*. Ken- 
 dall, I 111. App. loi; Mathews v. Hamil- 
 ton, 23 111. 470; Reynolds v. Ferree, 86 
 111. 570; Proctor V. Tows, 115 III. 138: 
 Dodge V. McDonnell, 14 Wis. 553; yEtna 
 Ins. Co. V. N. W. Iron Co., 21 Wis. 45S; 
 
 432 
 
Batification. 
 
 AGENCY. 
 
 Principal's Capability. 
 
 Must be Capable of Ratifying- 
 -pable of ratifying the act.^ 
 
 Woodbury v. Larned, 5 Minn. 339; Hum- 
 -phrey v. Havens, 12 Minn. 298; Bannon 
 V. Warfield, 44 Md. 22; Hoffman Steam 
 Coal Co. V. Cumberland, etc , Co., 16 
 Md. 456; s. c, 77 Am. Dec. 311; Adams 
 Exp. Co. V. Trego, 35 Md. 47; Pairo v. 
 Vickery, 37 Md. 467; Trader v. Lowe, 
 .45 Md. i; Hardeman f. Ford, 12 Ga.,205; 
 Mapp i". Phillips. 32 Ga. 72; Turner z/. 
 Wilcox, 54 Ga. 593; Delaney v. Levi, 19 
 La. Ann. 251; Mummy v. Haggerty, 15 
 La. Ann. 268; Union, etc., Co. v. Rocky 
 Mt. Bank, 2 Colo. 565; Pacific Rolling 
 Mill Co. V. Dayton, etc., R. Co., 7 Sawyer 
 (U. S.), 61; Rust V. Eaton, 24 Fed. Repr. 
 830; Bossean v. O'Brien. 4 Biss. (U. S.) 
 .395; Owings z/. Hall, g Pet. (U. S.) 607; 
 Fletcher v. Dysart, 9 B. Mon. (Ky.) 413; 
 Bank of Owensboro v. Western Bank, 
 13 Bush. (Ky.) 526; Bott v. McCoy, 20 
 Ala. 578; s. c, 56 Am. Dec. 223; Howe 
 Machine Co. v. Ashley, 60 Ala. 496; 
 Herring v. Skaggs, 77 Ala. 446; Spoon- 
 er w. Thompson, 48 Vt. 259; Mulford v. 
 Minch, 3 Stockt. Ch. (N. J.) 16; s. 
 -c, 64 Am. Dec. 472; Manning v. Gasha- 
 rie, 27 Ind. 399; Williams v. Storm, 6 
 Cold. (Tenn.) 203; Commercial Bank 
 V. Jones, 18 Tex. Soi; Vincent v. Rather, 
 31 Tex. 77; Snow w. Grace, 29 Ark. 131, 
 Knowledge by the principal of the un- 
 authorized act of the agent in assuming 
 to make a contract for him which the 
 agent had no power to make is essential 
 to a ratification of the agent's act. If the 
 agent fraudulently misrepresented his 
 authority, and the principal has received 
 the avails of the fraud without knowledge 
 of the agent's fraudulent conduct, the 
 remedy of the party injured against the 
 principal is not- upon the contract in 
 • damages, but by rescission of the con- 
 tract and suit for the consideration paid. 
 Titus u. Cairo, etc., R. Co., 46 N. J. L. 
 
 .393- 
 
 If the principal assents while in igno- 
 rance of the facts, lie may disaflSrm the 
 transaction when informed of them. 
 Bannon v. Wanfield, 42 Md. 22; Miller 
 V. Board of Education, 44 Cal. 166; 
 Scott V. Turley, g Lea (Tenn.), 631. 
 
 Where an agent has defrauded a buyer, 
 the mere reception or retention of the 
 ■purchase-money by the principal with- 
 out knowledge of the wrong will not 
 'Operate as a ratification. Hqrring v. 
 Skaggs, 73 Ala. 446; S. P. .lEtna Ins. 
 Co. V. N. W. Iron Co., 21 Wis. 458. 
 
 But if the principal retains the pro- 
 ceeds after he has knowledge he will be 
 Aeld to ratify the act. Davis v. Krum. 
 
 4 
 
 -The principal must also be ca- 
 
 12 Mo. App. 279; Wallace v. Lawyer, go 
 Ind. 4gg; McDowell v. McKenzie, 65 
 Ga. 630; Smith v. Tracy, 36 N. Y. 79. 
 
 Where a principal accepts security for 
 a debt he will be presumed to have taken 
 it with full knowledge, and to have rati- 
 fied the arrangements made by his agent. 
 Meehan v. Forrester, 52 N; Y. 277. 
 
 Notice of facts to another agent of the 
 principal where the matter is within the 
 scope of his agency affects the princi- 
 pal though not in fact communicated. 
 Union, etc., Co. v. Rocky Mt. Bank, 2 
 Colo. 565. 
 
 Where an agent is deceived about the 
 real facts, and makes representations to 
 his principal based upon the wrong 
 knowledge, the acts of the principal will 
 not be held to ratify a contract. Mum- 
 my V. Haggerty, 15 La. Ann. 268; Bank 
 of Owehsboro v. Western Bank, 13 
 Bush (Ky.), 526. 
 
 A principal will not be presumed to 
 have knowledge of deeds on record. 
 Billings J/.' Morrow, 7 Cal. 171; s. c, 68 
 Am. Dec. 235. 
 
 Where a principal received money 
 arising from a sale of goods by his agent, 
 he will not be regarded as confirming the 
 sale if he is ignorant of the facts. Bott 
 V. McCoy, 20 Ala. 578; s. c, 56 Am. 
 Dec. 223; Bryant v. Moore, 26 Me. 84; 
 s. c, 45 Am. Dec. 96; Pennsylvania, 
 etc., Co. V. Dandridge, 8 Gill & J. (Md.) 
 248 ; s. c, 29 Am. Dec. 543; Smith v. 
 Tracy, 36 N. Y. 79; Bell v. Cunning- 
 ham, 3 Pet. (U. S.) 6g ; Evans v. 
 Chicago, etc., R. Co., 26 111. 189. 
 
 An agent authorized to buy goods for 
 cash, without the knowlege of his prin- 
 cipal made an unauthorized purchase on 
 credit. Held, that the acceptance and 
 use of the goods by the principal did not 
 operate as a ratification. Manning v. 
 Gasharie. 27 Ind. 399. 
 
 1. McCracken v. San Francisco, 16 
 Cal. 591. 
 
 The acceptance of a town meeting 
 properly called for the purpose of hear- 
 ing the report of a person assuming to 
 act as agent for the town in conducting 
 certain suits and authorizing him to com- 
 promise suits then pending is a ratifica- 
 tion of his acts. Kinsley v. Norris, 60 
 N. H. 131. 
 
 The ratification may be made for the 
 principal 'by an agent who has authority 
 to do the thing which he ratifies. Whiter, 
 head v. Wells, 29 Ark. 99; Mound City 
 M. L. Ins. Co. V. Huth, 49 Ala. 520; 
 Palmer v. Cheney, 35 Iowa, .'!8r, 85 Pa- 
 ^3 
 
Batification, 
 
 AGENCY. 
 
 What may be Satified, 
 
 Disavowal does not prevent Ratification.— \i a principal dis- 
 avows an unauthorized act upon hearing of it, such disavowal does 
 not prevent a subsequent ratification. * 
 
 Act of Public Officer may be Ratified. — Where an officer exe- 
 cutes process in favor of a creditor, although his authority is con- 
 ferred by law, he acts for and is the agent of the creditor in such a 
 sense that the act is capable of ratification.** 
 
 Of Tort. — One cannot be liable as for the ratification of a tort 
 that was not committed in his interest.^ 
 
 Ratification cannot be Retracted. — If a principal ratifies and 
 adopts the agents' acts, even for a moment, he is bound by them, 
 and can no more deny the agent's authority.* 
 
 Cannot be in Part. — There can be no ratification of a part only 
 of a transaction. The law does not allow one part of a transac- 
 tion to be affirmed and the rest to be disallowed,^ 
 
 St. 2gg. Compare Lucas o. Brooks, i8 
 Wall. (U. S.)436. 
 
 A note was issued in the partnership 
 name by a clerk. It was shown to one of 
 the parters, who corrected the date, say- 
 ing it was all right. Held, a ratification. 
 Harper v. Devene, lo La. Ann. 724. 
 
 Where one of the new members of a 
 firm received property from an agent of 
 the old firm, such act will constitute a 
 ratification. Callanan v. Van Vleck, 36 
 Barb. N. Y. 324. 
 
 1. Woodward v. Harlow, 28 Vt. 338. 
 
 2. Farmers' L. & T. Co. v. Walworth, 
 I N. Y. 435. ' \ 
 
 3. So held where suit was brought 
 against the general agent of a sewing- 
 machine company for a forcible trespass 
 committed by employees while removing 
 a machine by his direction and in com- 
 pliance with the orders of the company 
 from the premises of one who held it un- 
 der a sewing-machine lease which had 
 been forfeited. Smith v. Lozo, 42 
 Mich. 6. 
 
 If the principal appropriates the pro- 
 ceeds of a tort, it will be held that it was 
 committed with his knowledge. Exunl 
 ■u. Brister, 35 Miss. 391. 
 
 To hold one responsible for a tort not 
 committed by himself nor by his order, 
 his adoption of the same must be explicit 
 and made with a full knowledge of the 
 tort, or at least of the injured party's 
 claim that there has been one. Tucker 
 V. Jerris, 75 Me. 184. 
 
 4. Silverman v. Bush, 16 111. App. 437; 
 Beall w. January, 62 Mo. 434; Hazleton 
 V. Batchelder, 44 N. H. 40; Clark v. 
 Riemsdyk, gCranch. (U. S.) 153; Vaughn 
 V. Sheridan, 50 Mich. 155; Brock v. Jones, 
 SO Tex. 461 ; Andrews v. JEtna Ins. 
 Co., 92 N. Y. 596; Avila v. Manhattan 
 
 ' 434 
 
 Chem. Co., 32 Hun (N. Y.), i; Smith v. 
 Cadogan, 2 T. R. 189. 
 
 Affirmance of an assumed agency in 
 the disposition of property, when made 
 with full knowledge of the facts, is a sin- 
 gle act; and when a party has once rati- 
 fied such transaction he cannot after- 
 wards be heard to disaffirm it when i: 
 turns out different from his expectations. 
 Whitfield v. Riddle, 78 Ala. gg; McGeoch 
 V. Hooker, 11 111. App. 649. 
 
 5. Drennan v. Walker, 21 Ark. 539; 
 Seago V. Martin, 6 Heisk. (Tenn.) 308; 
 Fort ■u. Coker, 11 Heisk. (Tenn.) 579; 
 Newall V. Hurlbutt, 2 Vt. 351; Burgess v. 
 Harris, 47 Vt. 322; Benedict v. Smith, 
 10 Paige (N. Y.), 128; Farmers' L. & T. 
 Co. V. Walworth, i N. Y. 433; Crans v. 
 Hunter, 28 N. Y. 389; Elwell u. Cham- 
 berlin, 31 N. Y. 611; Fowler v. N. Y. 
 Gold Exch., 67 N. Y. 138 ; Corning -v. 
 Southland, 3 Hill (N. Y.), 552; Moss v. 
 Rossie,«tc., Co.. 5 Hill (N.Y.), 137; Wid- 
 ner v. Lane, 14 Mich. 124; Henderson v. 
 Cummings, 44 111. 325; Cochran v. Chit- 
 wood, 59 111. 53; Barhydt v. Clark. 12 111. 
 App. 646; Krider v. Weston College, 31 
 Iowa, 547; Beidman v. Goodell, 56 Iowa, 
 592; Roberts v. Rumley, 58 Iowa, 301; 
 Warder v. Pattee, 57 Iowa, 515; South- 
 ern Exp. Co. V. Palmer, 48 Ga. 85; 
 Hunter v. Stembridge, 17 Ga. 243; Har- 
 deman V. Ford, 12 Ga. 205; Menkens v. 
 Watson, 27 Mo. 163; Joslin v. Miller, 15 
 N. W. Repr. (Neb.) 214; New Eng. M. 
 I. Co. V. De Wolf, 8 Pick. (Mass.) 63; 
 Culver V. Ashley, ig Pick. (Mass.) 300; 
 Peters v. Ballistier, 3 Pick. (.Mass.) 4g5; 
 Hovey v. Blanchard, 13 N. H. 145; 
 Wright V. Boynton, 37 N. H. g; s. c, 72 
 Am. Dec. 3ig; Tasker v. Kenton Ins. 
 Co., 59 N. H. 438; Grant v. Beard, 50 N. 
 H. 139; Strasser w. Conklin, 54 Wis. 102; 
 
Batification. 
 
 AGENCY. 
 
 After Termination of Agency 
 
 After Termination of Agency. — After the agency has terminated, 
 the principal will be held to have ratified any acts in which he 
 continues to acquiesce, and which are done by third parties in 
 ignorance of the termination of the agency.*^ 
 
 Form of Ratification. — The form of the ratification should be 
 
 Saveland v. Green, 40 Wis. 431; Babcock 
 V. Deford. 14 Kans. 408; Coleman v. 
 Stark, I Oregon, 115; Billings v. Mor- 
 row, 7 Cal. 171; s. c, 68 Am. Dec. 235. 
 
 An agent made an unauthorized sale, 
 giving a warranty. Held, that as the 
 principal accepted the proceeds of the 
 sale, he ratified both sale and warranty. 
 Cochran v. Chitwood, 59 III. 53. Compare 
 Cooley V. Perrine, 41 N. J. L. 322. 
 
 Where an agent exceeds his authority, 
 his principal must either wholly ratify or 
 wholly repudiate the transaction. He can- 
 not ratify that portion of the contract 
 which is beneficial to him and repudiate 
 the remainder. Rudasill v. Falls, 92 N. 
 Car. 222. 
 
 The principal cannot afBrm a loan 
 made by an agent at usurious interest, 
 and repudiate the usurious part. Joslin 
 V. Miller, 14 Neb. gi. See Condit v. 
 Baldwin, 21 N. Y. 219; s. c, 78 Am. Dec. 
 137; Crawford v. Barkley, 18 Ala. 270; 
 Hodnett v. Tatum, 9 Ga. 70; Henderson 
 V. Cummings, 44 111. 325 ; Widner o. 
 Lane, 14 Mich. 124; Peninsular Bank v. 
 Hanmer, 14 Mich. 208; Coleman v. Stark. 
 I Oregon, 115; Elam v. Carruth, 2 La. 
 Ann. 275; Crans u. Hunter, 28 N. Y. 
 389. 
 
 The present suit was upon an indorse- 
 ment of a guaranty upon commercial 
 paper, made in a firm-name by an agent 
 whose authority is denied. The guaranty 
 was made in the course of a transfer to a 
 bank, which thereupon discounted the 
 note and placed the proceeds to the credit 
 of such firm. A portion of such proceeds 
 was afterwards drawn by such firm by 
 checks to their creditors. The firm is 
 held liable on such guaranty to the ex- 
 tent of proceeds received. It cannot re- 
 pudiate the agent's authority without re- 
 storing the proceeds. The court declined 
 to extend the liability to the remainder 
 of the funds which were drawn out by the 
 same agent, but not used in the firm busi- 
 ness. First Nat. Bank v. Oberne, 7 N. 
 East. Repr. (111.), 85. 
 
 A principal who affirms a contract made 
 for him by his agent must adopt all the 
 instrumentalities employed by the agent 
 to bring it to a consummation. Joslin v. 
 Miller, 14 Neb. 91; New England, etc., 
 Co. V. Hendrickson, 13 Neb. 575; El- 
 well V. Chamberlain, 31 N. Y. 611. 
 
 And he may not ratify or disavow con- 
 
 ditionally, as "if he received no harm by 
 it." Fort V. Coker, n Heisk. (Tenn.) 
 579- 
 
 The defendant gave a written order to 
 the plaintiffs through their agent for an 
 organ. The agent seasonably carried an 
 organ substantially like the one ordered 
 to the defendant's house; but in the mean 
 time he had bought another and refused 
 to receive the plaintiffs'. Negotiation 
 ensued, and the agent gave the defendant 
 to understand, and he did understand, 
 that if he would let the organ be set up, ' 
 the trade should be at an end if he was 
 not satisfied with it. Afterwards the de- 
 fendant, without cause, thought that he 
 was dissatisfied with its tone, and so noti- 
 fied the agent. Held, in action of book 
 account, that the plaintiffs by claiming a 
 delivery adopted a part of the agent's last 
 transaction, and thereby the whole of it. 
 McClure v. Briggs, 58 Vt. 83. 
 
 Where the principal ratified the act of 
 his agent under a misapprehension of 
 its full scope, the act is voidable to 
 the extent of the mistake, and the party 
 can be relieved pro tanto. Miller v. 
 Board of Education, 44 Cal. 166; Bald- 
 win V. Burrows, 47 N. Y. 199. 
 
 So if the principal ratifies a sale he 
 does not include a warranty which was 
 unauthorized and of which, he had no 
 knowledge. Smith v. Tracy, 36 N. Y. 
 
 79- 
 
 Third parties may by their acts ratify 
 an assumed agency so as to estop them 
 from denying the authority of the agent. 
 Where a. party borrows money from an- 
 other who professes to act only as agent 
 for his principal, the first party cannot 
 put up lack of authority on the part of 
 the agent in defence of an action by the 
 principal for the recovery of the money. 
 Union Minn. Co. v. Rocky Mt. Nat. 
 Bank, 2 Colo. 248. 
 
 1. Where an agent entered into a 
 parol contract, void under the statute of 
 frauds, for the purchase of wood, and 
 where after the acceptance, of a portion 
 of the wood the agency was terminated, 
 but the vendor, without notice and in 
 ignorance of such termination, delivers 
 the residue of the wood, which was ac- 
 cepted by the former agent; held, that 
 the principal was liable for all the wood 
 delivered at the contract price. Barkley 
 V. Rensselaer, etc., R. Co. 71 N. Y. 205. 
 
 435 
 
Batidcation. 
 
 AGENCY. 
 
 Hust Befer to Frecise Act. 
 
 the same as required for the original appointment. Where agents 
 might have been orally authorized to make a contract, the unau- 
 thorized contracts made in behalf of the principal may be ratified 
 in any manner expressing his assent. ^ But where the contract is 
 required to be under seal a ratification must also be under seal.* 
 
 Must Refer to Precise Act. — The ratification must refer to the 
 precise act to be ratified. A subsequent extension of the powers 
 of an agent, which would have made the previous act legal if 
 given before the act was done, will be no ratification unless it re- 
 fers to the act specially.^ 
 
 1. Roby w. Cossitt, 78 III. 638; Brown 
 ■u. Eaton, 21 Minn. 409; Dickerman v. 
 Ashton, 21 Minn. 538; Gose v. Stevens, 
 32 Minn. 472; Lawrence v. Taylor, 5 
 Hill (N. Y.), 113;' Hariford v. McNair, 9 
 
 • Wend. (N. Y.), 354; Evans w. Wells, 22 
 Wend. (N. Y.) 324; Worrall v. Munn, 5 
 N. Y. 240; s. c, 55 Am. Dec. 330; 
 Briggs V. Partridge, 64 N. Y. 358; Merri- 
 iield V. Parritt, II Cush. (Mass.) 590; 
 State V. Spartanburg, etc., R. Co., 8 
 Shand. (S. Car.) 129. See Breithaupt v. 
 Thurmond, 3 Richm. L. (S. Car.) 216; 
 Adams v. Power, 52 Mass. 828; Ham- 
 mond z/. Hannin, 21 Mich. 374; Powell 
 -v. Gossom, 18 B. Mon. (Ky.) 179; Baines 
 V. Burbridge, 15 La. Ann. 628. 
 
 2. Ragan v. Chenault, 78 Ky. 545; 
 Pollard V. Gibbs, 55 Ga. 45;, Bragg v. 
 Fessenden, 11 111. 544; Ingraham v. Ed- 
 wards, 64 111. 526; Bellas V. Hays, 5 S. & 
 R. (Pa.) 427; s. c, 9 Am. Dec. 385; Mc- 
 Dowell V. Simpson, 3 Watts (Pa.), 129; 
 s. c, 27 Am. Dec. 338; Cooper v. Ran- 
 kin, 5 Binn. (Pa.) 613; Gordon v. Bulke- 
 ley, 14 S. & R.' (Pa.) 331; Stetson v. 
 Patten, 2 Greenl. (Me.) 358; s. c, II 
 Am. Dec. iii; Heath v. Nutter 50 
 Me. 378; Paine v. Tucker, 21 Me. 
 138; s. c, 38 Am. Dec. 255; Turbe- 
 ville V. Ryan, I Humph. (Tenn.) 113 
 Smith V.' Dickinson, 6 Humph. (Tenn.) 
 261; s. c, 44 Am. Dec. 306; Tap- 
 pan V. Redfield, i Halst. Ch. (N. J.) 339; 
 Blood V. Goodrich, 9 Wend. (N. Y.) 68; 
 s. c. , 24 Am. Dec. 121; s. c, 12 Wend. 
 <N. Y.) 525; 27 Am. Dec. 152; Wells v. 
 Evans, 20 Wend. (N. Y.) 251; Hanford 
 V. McNair, 9 Wend. (N.Y.) 54; Despatch 
 line V. Bellamy Mfg. Co., 12 N. H. 231; 
 s. c, 37 Am. Dec. 203. Compare Hol- 
 brook V. Chamberlain, 116 Mass. 155; 
 s. c, 17 Am. Rep. 146; Swan v. Sted- 
 tnan, 4 Mete. (Mass.) 548; Cady v. 
 Shepherd, 11 Pick. (Mass.) 400; s. c, 22 
 Am. Dec. 379; Mclntyre w. Park, 11 
 Gray (Mass.), 102; Fouch v. Wilson, 59 
 Ind. 93; Grove v. Hodges 55 Pa. .St 
 504; Peine v. Weber, 47 111. 41; Drum- 
 right v.. Philpot, 16 Ga. 424; s. c, 60 
 
 Am. Dec. 738; McDonald w. Eggles- 
 ton, 26 Vt. 154; s. c, 60 Am. Dec. 
 303. 
 
 Where an attorney appointed by parol 
 executes a bond in the name of the 
 principal and afterward the principal 
 gives him a regular power of attorney, 
 dated prior to the bond, this is a good 
 ratification of the bond. Mdliken v. 
 Coombs, I Greenl. (Me.) 343; o. \.., 10 
 Am. Dec. 70. 
 
 A sale of land under parol authority is 
 ratified by an admission of the authority 
 by the principal in his answer to the bill 
 in equity in which the transaction is 
 relied upon. Stoney v. Shultz, i Hill 
 Ch. (S. Car.) 465; s. c, 27 Am. Dec. 429. 
 
 Delivery by the principal of a deed 
 executed by his agent without authority 
 will act as a ratification. Harshaw v, 
 McKesson, 65 N. Car. 688. 
 
 3. Moore v. Lockett, 2 Bibb. (Ky.) 67; 
 s. c, 4 Ani. Dec. 683. 
 
 But see Rice v. McLarren, 42 Me. 157, 
 where it was held that a letter authorizing 
 acts which the agent had performed be- 
 fore the receipt of the letter is a ratifica- 
 tion. 
 
 The ratification is not retroactive to 
 the extent of binding the principal for 
 other acts in excess of the authority of 
 the agent. Baldwin v. Burrows, 47 N. 
 Y. 199. 
 
 If intervening rights have been acquired 
 by a third party, such rights cannot be 
 injuriously affected by the ratification. 
 Pollock V. .Cohen, 32 Ohio St. 514; Stod- 
 dart's Case, 4 Ct. of Claims, 511; Wood 
 V. McCain, V Ala. 800; s. c, 42 Am. 
 Dec. 612; Taylor v. Robinson, 14 Cal. 
 396 ; Fiske v. Holmes, 41 Me. 441. 
 Compare Williams v. Butler, 35 111. 544; 
 Freeman v. Boynton, 7 Mass. 483; Bank 
 of Utica ■u. Smith, 18 Johns. (N. Y.) 230. 
 
 The plaintiff sued as assignee of a 
 demand, and it appeared that the alleged 
 assignment had been made by an agent, 
 without authority from the principal; 
 held, that proof of a ratification of the 
 assignment, made subsequently to the 
 
 436 
 
Batification, 
 
 AGENCY. 
 
 Hay be Implied. 
 
 May be Implied. — A ratification may be implied, as from the 
 principal's acts ; but implied ratifications extend only to such acts 
 ■of the agent as are known to the principal at the time they are 
 made.* 
 
 ■commencement of the action, was un- 
 availing. Whittenbrock v. Bellmer, 57 
 Cal. 12. 
 
 1. Taylor v. Agricultural, etc., Assoc, 
 ■68 Ala. 229; Wallace v. Lawyer, go Ind. 
 499; Hauss V. Niblack, 80 Ind. 407^ 
 Warder v. Pattee, 57 Iowa, 515; Durham 
 •u. Carbon Coal Co., 22 Kans. 232; Carter 
 •V. Roland, 53 Tex. 540; Filer v. Jenks, 
 
 38 Mich. 585; Jennison v. Parker, 7 
 Mich. 355; Connett v. Chicago, 114 111. 
 •233; Searing v. Butler, 69 111. 575; Coch- 
 Tan V. Chitwood, 59 111. 53; Harrod v. 
 McDaniels, 126 Mass. 413; Curry v. Hale, 
 15 W. Va. 867; Rowland v. Barnes, 81 
 N. Car. 234; Succession of Massien, 24 
 la. Ann. 237; Szymaski v. Plassan, 20 
 La. Ann. 90; Hazard v. Spears, 2 Abb. 
 App. Dec. (N. Y.) 353; Harrett v. Garney, 
 35 N. Y. Super. Ct. 327. Compare Pope 
 ■V. Lowitz, 14 111. App. 96. 
 
 Where the principal accepts the results 
 of," the agent's unauthorized act, it will 
 be a ratification. Tooker u. Sloan, 30 
 N. J. Eq. 394; McDowell v. McKenzie, 
 65 Ga. 630; Ketchum v. Verdell, 42 Ga. 
 534; Turner v. Wilcox. 54 Ga. 593; Her- 
 ring V. Skaggs, 73 Ala. 446; Jones v. 
 Atkinson, 68 Ala. 167; Taylor v. Agri- 
 cultural, etc., Assoc, 68 Ala. 229; Bacon 
 -w. Johnson, 56 Mich. 782; Pratt w. Camp- 
 bell, Har. Ch. (Mich.) 236; Hutchings v. 
 Ladd, 16 Mich. 493; Nichols v. Shaffer, 
 30 N. Western Repr. (Mich.)383; Gardner 
 V. Warren, 17 N. Western Repr. (Mich.) 
 S53; Vaughan v. Sheridan, 15 N. Western , 
 Repr. (Mich.) 62; Waterson v. Rogers, 21 
 Kans. 529: Breed v. Bank, 4 Colo. 481; 
 Fouch V: Wilson, 59 Ind. 93; Beidman 
 -v. Goodell, 56 Iowa,- 592; Milligan v. 
 Davis, 49 Iowa, 126; Chamberlain u. 
 Collinson, 45 Iowa, 429; Elkenberry v. 
 Edwards, 24 N. Western Repr. (Iowa) 570; 
 White V. Morgan, 42 Iowa, 113; Eadie 
 ■V. Ashlaugh, 44 Iowa, 519; Pike v. 
 Douglass, 28 Ark. 59; Maddux v. Bevan, 
 
 39 Md. 485; Reynolds v. Davison, 34 
 Md. 662; Seago v. Martin, 6 Heisk. 
 (Tenn.) 308; Dunn v. Hartford, etc., R. 
 Co., 43 Conn. 434; Frank v. Jenkins, 22 
 Ohio St. 597; State v. Perry, Wright 
 (Ohio), 662; Arnold v. Spurr, 130 Mass. 
 347; Bassett v. Brown, 105 Mass. 5'5i; 
 French v. Price, 24 Pick. (Mass.) 13; 
 Cashman v. Loker, 2 Mass. 106; Narra- 
 gansett Bank v. Atlantic Co., 3 Mete. 
 (Mass.) 282; Ely v. James, 123 Mass. 36; 
 Churchhill v. Palmer, 115 Mass. 310; 
 
 Episcopal Charitable Soc. v. Episc. 
 Church, I Pick. (Mass.) 372; Wright v. 
 Burbank, 64 Pa. St. 247; Davis v. Krum, 
 12 Mo. App. 279; Ruggles v. Washington 
 Co., 3 Mo. 496; Hastings v. Bangor 
 House, i8 Me. 436; Low v. Connecticut, 
 etc., R. Co , 46 N. H. 284; Hatch v. 
 Taylor, 10 N. H 538; Miles v. Ogden, 
 54 Wis. 573; Reid v. Hibbard, 6 Wis. 
 175; Morse v. Ryan, 26 Wis. 356; Pierce 
 V. O'Keefe, 11 Wis. 180; Ballston Spa 
 Bank V. Mar. Bank, 16 Wis. 120 ; Cod- 
 wi^se V. Hacker, i Cai. (N. Y.) 526; 
 Moss v. Rossie Co., 5 Hill (N. Y.), 137; 
 Palmerton v. Huxford, ; Den. (N. Y.) 
 166; Houghton V. Dodge, 5 Bosw. (N. 
 Y.)326; Farmers', etc., Bankw. Sherman. 
 6 Bbsw. (N. Y.) 181; Smith v. Tracy, 36 
 N. Y. 79; Randall v. Van Vechten, ig 
 Johns. (N. Y.) 60; Krumm v. Beach, 25 
 Hun (N. Y.). 293; Harris v. Simmerman, 
 81 111. 413; Sessums v. Henry, 38 Tex. 
 37: Robinson v. Mut. Ben. L. I. Co., 
 16 Blatch. (U. S.) 194; Gold Mfg. Co. v. 
 Nat. Bank, 96 U. S. 640; Bank of Colum- 
 bia V. Patterson, 7 Cranch. (U. S.) 2gg. 
 Compare Carter v. Roland, 53 Tex. 540. 
 
 And that whether a ratification was 
 intended or not. Hazard u. Spears, 2 
 Abb. App. Dec. (N. Y.) 353. 
 
 The Baptist State Convention was the 
 legatee and the money was piid to its 
 treasurer. Held, that the convention by 
 accepting and using the money, with 
 knowledge of all the facts, ratified the 
 acts of the treasurer in receiving it, if 
 there were doubt as to his authority. 
 Baptist Convention v. Ladd, 58 Vt. gj. 
 
 One who accepts, with a knowledge of 
 all the facts, the avails of a compromise 
 and settlement of a controversy made in 
 his behalf without authority thereby rati- 
 fies the settlement. Strasser v. Conklin, 
 54 Wis. 102; Vermont Bapt. State Co. v. 
 Ladd, 4 Atl. Repr. (Vt.) 635; Jackson v. 
 Badger, 26 N.. Western Repr.(Minn.)go8; 
 Adams v. Smith, g Pac. Repr. (Nev.) 
 337; McClelland v. Whiteley, 15 Fed. 
 Repr. 322; Kelly z/. Newburyport, etc., 
 R. Co., 6 N. Eastern Repr. (Mass.) 745. 
 
 Where an agent without authority ex- 
 cepts a deed of land to his principal as a 
 payment on a debt due the principal, a 
 retention by the latter of the title is a rat- 
 ification. Miles V. Ogden, 54 Wis. 573. 
 
 An agent received Confederate money 
 in payment of a note. He handed the 
 money over to his principal, who re- 
 
 1 C. of L. — 29 
 
 437 
 
Batification. 
 
 A GENCY. Clear Intention must be Shown,. 
 
 Clear Intention must be Shown. — The acts of the principal must, 
 however, show a clear intention to ratify the unauthorized acts of 
 
 ceived and used it. Held, that it was a 
 ratification. Murray w. Walker, 44 Ga. 58. 
 If an agent makes an unauthorized 
 sale, and steals the proceeds, and the 
 principal subsequently compromises with 
 the agent, the principal by such compro- 
 mise ratifies the sale. Ogden v. Marc- 
 hard, 29 La. Ann. 61. See Briden- 
 becker v. Lowell, 32 Barb. (N. Y.) g. 
 
 A managed a business for B, but with- 
 out authority to purchase on credit, ex- 
 cept upon the written order of B. A 
 purchased of C goods without such an 
 order, and C was ignorant of the con- 
 ditions of the agency. B took posses- 
 sion of the stock and sold it, including 
 the goods sold by C. Held, that B by 
 so doing ratified the purchase by A. 
 Sartwell v. Frost, 122 Mass. 184. 
 
 An agent having made, without au- 
 thority, an exchange of a mule for a 
 horse, a claim and assertion by the prin- 
 cipal of right and title to the horse, with 
 knowledge of the facts, is a ratification. 
 Jones V. Atkinson, 68 Ala. 167. 
 
 If an agent defrauds a buyer, and the 
 principal with knowledge of the wrong 
 receives or retains the money, he will be 
 held to have ratified the contract. Her- 
 ring' V. Skaggs, 73 Ala. 446. 
 
 Where a railroad corporation received 
 railroad material bought upon its credit, 
 and for its use by one of its officers, 
 without authority, and uses it for the 
 corporate purposes for which it was de- 
 signed, this is an adoption and ratifica- 
 tion of the act of the officer. Scott v. 
 Middletown, etc., R. Co., 4 Am. & 
 Eng. R. R. Cas. 114; s. c, 86 N. Y. 200. 
 A merchant whose agent purchased 
 goods on credit, cannot refuse to pay 
 when he has received and sold the goods, 
 and kept the proceeds; especially where 
 he has paid other bills made by the same 
 agent. McDowell v. McKenzie, 65 Ga. 
 630. 
 
 When an agent without the authority 
 or knowledge of his principal borrows 
 money and applies it to the payment 
 and discharge of the legal liabilities of 
 his principal, and the principal knowing- 
 ly retains the benefit of such payment, 
 the lender may recover therefor in an 
 action against the principal for money 
 had and received. The principal cannot 
 knowingly retain the benefit of money 
 hired by his agent, in his name, and at 
 the same time legally refuse to repay the 
 loan upon the ground that the agent had 
 no authority to borrow money, Perkins 
 V. Boothby, 71 Me. 91. 
 
 A principal who, after knowledge of 
 the terms of a sale made by the agent, 
 does not disaffirm but accepts and en- 
 joys all the benefits thereof, cannot after- 
 wards deny the authority of the agent to 
 make the sale upon those terms. Parish 
 V. Reeve, 63 Wis, 315. 
 
 The collection of a small portion of 
 rents due from a tenant under a lease, 
 after knowledge of the making of an un- 
 authorized contract by the lessor's agent, 
 is not a ratification of such contract for 
 the sale of the lands; nor is the reten- 
 tion of the possession of the leased prop- 
 ery obtained under such agent's contract, 
 where the lessor had the right to declare 
 a forfeiture and take forcible possessions 
 of the demised premises. Torrence v^ 
 Shedd, 112 111. 466. 
 
 Where principal pays notes made- 
 by an agent it is a ratification. Harrod 
 V. McDaniels, 126 Mass, 413; Long v^ 
 Colburn, 11 Mass. 97; s. c, 6 Am. Dec. 
 160; Dow V. Spenny, 2g Mo. 386; Com- 
 mercial Bank w. Warren, 15 N. Y. 577.. 
 See Ward v. Williams, 26 111. 446; s. c, 
 79 Am. Dec. 385, 
 
 Where a principal knowing that his 
 agent has disobeyed instructions settled 
 with him and gave him notes for the bal- 
 ance due, this is a ratification. Beall v. 
 January, 62 Mo. 434. 
 
 An agent of A guaranteed the pay- 
 ment of goods that B might order. A 
 agreed to the guarantee provided he had 
 sufficient funds belonging to B to meet 
 the bill, which he had. A delivered a 
 statement of the goods purchased by B. 
 to his agent, who paid the account.. 
 Held, that A had ratified his agent's act. 
 Burgess v. Harris, 47 Vt. 322. 
 
 Where T. who was indebted to B. 
 agreed to supply him with lumber which 
 he ordered of S, representing himself to 
 be B. 's agent, and S. sent the lumber to B> 
 with bills made out as against B. which 
 bills B, received and retained without 
 giving notice to S. that he was buying of 
 T. ; held, that B. had ratified T.'s action^ 
 and was liable to S. Bearce v. Bowker,. 
 115 Mass. 129. Compare Carson v. Cum- 
 mings, 69 Mo. 325; Moody u. Blake, 
 177 Mass. 23. 
 
 One who employs a contractor to do a 
 work, not in its nature a nuisance, but 
 which becomes so by reason of the man- 
 ner in which the contractor has per- 
 formed it, if he accepts the work in that 
 condition becomes at once responsible 
 for the nuisance. Vogel v. Mayor of 
 N. Y., 92 N, Y. 10; s. c, 44 Am. Rep. 349. 
 
Batification. 
 
 AGENCY. 
 
 Form of Action, 
 
 the agent, and must be inconsistent with a different intention ; 
 and where the evidence is doubtful, the question of ratification is 
 for the jury.* 
 
 Form of Action. — Ratification may be implied by the form of 
 action in the prosecution, or in the defence of suits, relating to the 
 subject-matter of the agency.* 
 
 Must Disavow. — -A principal is bound to disavow the unauthor- 
 ized act of his agent within a reasonable time after the fact comes 
 to his knowledge; otherwise, in many cases, he makes the act his 
 
 Vt. 560; Drennen w. Walker, 21 Ark. 537; 
 Woodward v. Suydam, 11 Ohio, 363; 
 Frank v. Jenkins, 22 Ohio St. 597.; Bank 
 of Owensboro v. Western Bank, 13 Bush 
 (Ky.), 526. 
 
 The abandonment of a suit by the 
 principal operates as a ratification of a 
 compromise of the suit by an agent. 
 Hoit V. Cooper, 41 N. H. iii. 
 
 Suit by the principal to enforce his 
 claim will not, as between the principal 
 and agent, be a ratification releasing the 
 agent from a claim for negligence. Bank 
 V. Western Bank, 13 Bush (Ky.), 526. 
 
 Bringing a suit for the price of a horse, 
 which the agent had sold, but had given 
 an authorized warranty, is not a ratifica- 
 tion of the warranty. Cooleyz). Perrine, 
 41 N. J. L. 322, 42 N. J. L. 623. See 
 Carew v. Lillienthal, 50 Ala. 44. 
 
 A suit prosecuted by a corporation in 
 a lessee's name is not a ratification of a 
 lease made by their agent. Gillis v. 
 Bailey, 17 N. H. 18. 
 
 A. without authority, received for B 
 money derived from the sale of real es- 
 tate by a commissioner in partition, and 
 notified B of the fact. B disputed the 
 validity of the sale, and refuseti to accept 
 or have anything to do with the money; 
 thereupon A loaned the money to C, 
 who became insolvent. B sued A's ad- 
 ministrator for the money. Ueld, that 
 the bringing of the suit ratified the re- 
 ceipt of the money by A, but not the 
 loaning. Benson v. Liggett, 78 Ind. 452. 
 
 Where, under a N. Y. statute, a hus- 
 band procures a policy of insurance upon 
 his life in the name and for the benefit of 
 his wife, or, in case of her death before his, 
 of their children, in procuring it and in 
 doing whatever is necessary to perfect 
 and continue the rights of the assured 
 he acts simply as their agent, and they 
 acquire a vested interest in the policy at 
 the moment of its delivery to the insured; 
 and this although no knowledge of the 
 existence of the policy comes to them , 
 until after his death; their claim to the 
 fruits of the insurance is a ratification of 
 the act by which it was obtained. White- 
 head V. N. Y. L. Ins. Co., 102 N. Y. 143. 
 
 The acts of an agent from which a 
 ratification can be implied are always 
 construed liberally in favor of the agent. 
 Terril v. Flower, 6 Martin (La.), 584; 
 Cod wise v. Hacker, i Cai. (N. Y.) 526; 
 Byrne v. Doughty, 13 Ga. 46; Loraine v. 
 Cartwright, 3 Wash. (U. S.) 151. 
 
 1. Abbott V. May, 50 Ala. 97: Hor- 
 tons V. Townes, 6 Leigh. (Va.) 47; 
 Crooker v. Appleton, 25 Me. 131; Bar- 
 nard V. Wheeler, 24 Me. 412; Bryant v. 
 Moore, 26 Me. 84; Burr v. Howard, 58 
 Ga. 564; Estevez v. Purdy, 66 N. Y. 446; 
 Farwell -v. Meyer, 35 111. 40; Penn., etc.. 
 Steam Nav. Co, v. Dandridge, 8 G. & J. 
 (Md.) 248; s. c, 28 Am. Dec. 543. 
 
 An agent instructed to remit cash by 
 express sent a check of a party in good 
 credit. The principal deposited the check 
 for collection, but meanwhile the drawer 
 became insolvent, ffeld, that the princi- 
 pal did not ratify the act of the agent. 
 Walker v. Walker, 5 Heisk. (Tenn.) 425. 
 
 A letter written by the principal to a 
 party who had made a purchase which 
 the agent was not authorized to make, 
 requesting the party to decline the sale, 
 is not a ratification. Johnson v. Craig, 
 21 Ark. 533. 
 
 2. Gibson v. Sav. Bank, 69 Me. 579; 
 Partridge v. White, 59 Me. 564; Benson 
 V. Liggett, 78 Ind. 452; Kyser v. Wells, 
 60 Ind. 261; Eadie v. Ashbaugh, 44 Iowa, 
 519; Grant v. Beard, 50 N. H.' 139; Cor- 
 ser V. Paul, 41 N. H. 24; s. c, 77 Am. 
 Dec. 753; Ham v. Boody, 20, N. H. 411; 
 s. c, 51 Am. Dec. 235; Payne v. Smith, 
 12 N. H. 34; Pratt v. Putnam, 13 Mass. 
 361; Herring v. Polley, 8 Mass. 113; 
 Hampshire v. Franklin, 16 Mass. 76; 
 Sutton V. Cole, 3 Pick. (Mass.) 232; Fol- 
 ger V. Mitchell, 3 Pick. (Mass.) 396; 
 Dodge V. Lambert, 2 Bosw. (N. Y.) 570; 
 Bank of Beloit v. Beale, 34 N. Y. 473; 
 Wilmot V. Richardson, 4 Abb. Dec. 
 (N. Y.) 614; Bank v. Conrey, 28 Miss. 
 667; Walker v. Mobile, etc., R. Co., 34 
 Miss. 245; Meyers'. Morgan, 51 Miss. 21; 
 Franklin v. Ezell, i Sneed (Tenn.), 497; 
 Gracy z/. Potts, 4 J. Baxt. (Tenn.) 395; 
 Warden v. Eichbaum, 3 Grant. Cas. (Pa.) 
 42; Lyman v. Norwich University, 28 
 
 439 
 
Hatification. 
 
 A GENC Y. Unauthorized Act must be Sisayowed. 
 
 own ; as where the silence of the principal niight cause a loss to 
 third persons, or might result from a desire tp speculate on the 
 chances of profit, or where the principal would, in fact, gain an ad- 
 vantage by his silence ; in these and like cases the principal must 
 act promptly, and disavow, or he ratifies the transaction.^ 
 
 1. McClure v. Evartson, 14 Lea 
 (Tenn.), 495; Hart v. Dixon, 5 Lea 
 (Tenn.), 336; Walker v. Walker, 7 Baxt. 
 (Tenn.) 260; Western, etc. R. Co. v. Mc- 
 Elivee, 6 Heisk. (Tenn.) 208; Southern 
 Oil Works v. Jefferson, 2 Lea (Tenn.), 
 581; Curry v. Hale, 15 W. Va. 867; Thur- 
 mond zi. Carter, 59 Miss. 127; Meyer v. 
 Morgan, 51 Miss. 21; Connett v. Chi- 
 cago, 114 111. 233; Hall V. Harper, 17 III. 
 82; McGeoch v. Hooker, 11 111. App. 
 649; Searing- f. Butler, 69 111. 575; Wil- 
 liams V. Merritt, 23 111. 623; Hurd v. 
 Marple, 2 Bradw. (111.) 402; McDermid 
 -V. Cotton, 2 Bradw. (III.) 297; Johnston 
 V. Berry, 3 111. App. 256; Indianapolis, 
 ete., R. V. Morris, 67 111. 29s; Pope w. 
 Lowitz, 14 111. App. 96; Francis v. Ker- 
 ier, 85 III. 190; Hall v. Chicago, etc., R. 
 Co., 48 Wis. 317: Walworth, etc.. Bank 
 'v. Farmers', etc., Co., 16 Wis. 629; Kelly 
 ■V. Phelps, 57 Wis. 425; Cooper v. 
 Schwartz, 40 Wis. 54; Saveland v. Green, 
 ,40 Wis. 431; Perkins v. Boothby, 71 Me. 
 91; Johnson v. Wingate, 29 Me. 404: 
 Blanchard v. Waite, 28 Me. 51; s. c, 48 
 Am. Dec. 474; Hawkins v. Lange, 22 
 Minn. 557; State of Wisconsin v. Tori- 
 nus, 26 Minn, i; Farwell v. Howard, 26 
 Iowa, 381; Hayes v. Steele, 32 Iowa, 44; 
 Burlington, etc., Co. v. Greene. 22 Iowa, 
 508; Nixon V. Brown, 57 N. H. 34; Brig- 
 ham w. Peters, i Gray (Mass.), 139;. 
 Frothingham v. Haley, 3 Mass. 68; Lent 
 ■V. Paddleford, 10 Mass. 320; s. c, 6 Am. 
 Dec. 119; Odiorne v. Maxcy, 13 Mass. 
 178: Stockbridge v. West Stockbridge, 
 14 Mass. 257; Amory v. Hamilton, 17 
 Mass. 103; Bassett «/. Brown, 105 Mjiss. 
 551; Bredig v. Dubarry, 14 S. & R. (Pa.) 
 37; Lindsley v. Malone. 23 Pa. St. 24; 
 Kelsey v. Nat. Bank of Crawford, 69 Pa. 
 St. 426; Phila., etc., R. Co. v. Cowell, 
 28 Pa. St. 329: s. c, 70 Am. Dec. 128; 
 Nat. Bank v. Fassett, 42 Vt. 432; Bige- 
 low I'. Denison, 23 Vt. 564; Beecher v. 
 Grand Trunk R. Co., 43 Vt. 133; Brooks 
 V. Fletcher, 56 Vt. 624; Judevine v. Hard- 
 wick, 49 Vt. 180: Watson t;. Gray, 4 Abb. 
 Dec. (N. Y.) 540; Cairnes v. Bleecker, 12 
 Johns. (N. V.)300; Rogers v. Kneeland, 
 10 Wend. (N. Y.) 218; Vianna v. Barclay, 
 '3 Cow. (N. Y.) 281; Johnson v. Jones, 4 
 - Barb. (N. Y.) 369; Bridenbecker -v. Low- 
 ell, 32 Barb. (N. Y.) 9; Hope v. Law- 
 rence, 50 Barb. (N. Y.) 258; Sheldon, 
 
 etc., Co. V. Eickenmeyer, etc., Co., 90 
 N. Y. 607; Craus v. Hunter, 28 N. Y.' 
 389; Sage V. Sherman, 2 N. Y. 417; 
 Murray v. Bininger, 3 Keyes (N. Y.), 
 107; Hazard w. Spears, 2 Abb. App. Dec. 
 (N. Y.) 353; Benedict v. Smith, 10 Paige 
 (N. Y.), 128; Pitts V. Shubert, 11 La. 
 Ann. 286; s. c, 30 Am. Dec. 718; Lafiite 
 V. Godchaux, 35 La. Ann. 1161; Woods 
 V. Rocchi, 32 La. Ann. 2io; Mangum v. 
 Bell, 20 La. Ann. 215; Oliver v. Johnson, 
 24 La. Ann. 460; Kehlor v. Kemble, 26 
 La. Ann. 713 ; Abernathie v. Consoli- 
 dated, etc., Co., 16 Nev. 260; Owsley v. 
 Woolhopter, 14 Ga. 124; Bray v. Gunn, 
 53 Ga. 144; McConnell v. Bowdry, 4 T. 
 B. Mon. (Ky.) 392 ; Clay v. Spratt, 7 
 Bush (Ky.), 334; Chetwood v. Berrian, 
 39 N. J. Eq. 203; Peck v. Ritchey, 66 
 Mo. 114; Maddux v. Bevan, 39 Md. 485;- 
 Downer v. Morrison. 2 Gratt. (Va.) 250; 
 First Nat. Bank v. Reed, 36 Mich. 263; 
 Clealand v. Walker, 11 Ala. 1058; s. c, 
 46 Am. Dec. 238; Lee v. Fontaine, 10 
 Ala. 755; Whilden v. Merchants', etc.. 
 Bank. '^4 Ala. i; Wallace v. Lawyer. ,90 
 Ind. 499; Breed v. First Nat. Bank, 6 
 Colo. 235; s. c, 4 Colo. 481; Smith v. 
 Sheeley, 12 Wall. (U. S.) 358; Law v. 
 Cross, I Black. (U. S.) 533; Thompson 
 V. Craig, 16 Abb. Pr. (N. Y.) 29; Union 
 Gold Min. Co. v. Nat. Bank, 96 U. S. 
 640. 
 
 As to what is reasonable time see 
 McDermid v. Cotton, 2 111. App. 297, 
 where ten days, the party being absent 
 from home, Ae/d, a reasonable time. 
 
 Where the principal remained silent 
 for four years,' although he had not re- 
 ceived the money paid to his agent, and 
 the agent finally absconded with it, 
 Me/d, a ratification. Alexander v. Jones, 
 64 Iowa. 207. 
 
 Although a principal might have re- 
 pudiated the acts of his agent in the sale 
 of land, and although the purchase-money 
 never came to his hands, yet, since he 
 made no abjections to the transaction for 
 four years, during which time the gran- 
 tee of the land made valuable improve- 
 ments, Aeld, that his silence for so long 
 a time must be regarded as a ratification 
 of the sale. Alexander v. JoneS, 64 
 Iowa, 207. 
 
 The fact that a depositor in a bank re- 
 mained silent for over two years after 
 
 440 
 
Ratification. 
 
 AGENCY. 
 
 When Principal Liable, 
 
 Must have Full Knowledge of Facts. — In order to make the 
 principal liable for not promptly disavowing unauthorized acts of 
 
 being informed that the cashier had 
 signed his name to a check, and took no 
 measures to assert his rights, may be re- 
 garded as a strong circumstance tending 
 to show that the cashier- was authorized 
 to draw the check; but it is error to in- 
 struct the jury, as a rtiatter of law, that if 
 the depositor neglected to repudiate the 
 act within a reasonable time after being 
 informed of the facts, he thereby ratified 
 and confirmed the act of the bank in 
 charging him with such check. De Land 
 V. Dixon Nat. Bank, in 111. 323. 
 
 The assignment was made in Decem- 
 ber, 1879. The mortgage was afterwards 
 foreclosed, the premises bought by the 
 agent, and conveyed to the defendant in 
 July, 1881. The complainant, Tyho was 
 then in Paris, was notified thereof in 
 October, 1881, and returned to this State 
 in April, 1882. He lived continuously 
 thereafter, until April, 1883, with his 
 agent, who informed him fully as to this 
 transaction. He filed his bill in June, 
 1883. Held, that his delay constituted a 
 ratification and an estoppel as against de- 
 fendant. Chetwood v. Berrian, 39 N. J. 
 Eq. 203. 
 
 But a principal must have an opportu- 
 nity to repudiate or ratify the act of his 
 agent. Williams v. Storms, 6 Cold. 
 (Tenn.) 203. 
 
 If the principal does not instantly, on 
 learning of the unauthorized act, repudi- 
 ate it, the failure to do so is not ipso 
 facto a ratification. Miller v. Excelsior 
 Stone Co., i 111. App. 273; Caswell v. 
 Cross, 120 Mass. 545. 
 
 Where he receives no direct benefit 
 from the act, and the party dealing with 
 the agent is^not misled or prejudiced by 
 his failure to repudiate the act promptly, 
 and a prompt reply is not demanded by 
 fair dealing or a usage of trade, a ratifi- 
 cation of the act will not be presumed 
 from his mere silence. Mobile, etc., R. 
 Co. V. Jay, 65 Ala. 113. 
 
 A principal upon being informed of an 
 unauthorized act of an agent has a right 
 to elect whether he will adopt it or not; 
 and so long as the condition of the parties 
 is unchanged cannot be prevented from 
 such adoption by the fact that the other 
 party prefers to treat the contract as in- 
 valid. Andrews f. JSXnz, Life Ins. Co., 
 92 N. Y. 596. 
 
 Silence will not imply a ratification if 
 the principal did not know of the un- 
 authorized act. Walters v. Monroe, 17 
 Md. 154; s. c, 77 Am. Dec. 328; Ladd 
 V. Hildebrandt, 27 Wis. 135. 
 
 Failure to answer letters or inquiries 
 from the agent as to the comsummation of 
 the sale does not constitute a ratification. 
 Bosseau v. O'Brien, 4 Biss. (U. S.) 395. 
 Compare\Arv&%\i.^ v. Malone, 23 Pa. St. 24.. 
 
 Silence will amount to ratification- 
 where the principal with knowledge of 
 the transaction of his agent fails for a 
 reasonable time to dissent. Delay in 
 suing after the principal has given notice 
 of his refusal to approve the agent's act 
 raises no presumption of ratification. 
 McClure v. Evartson, 14 Lea (Tenn.),, 
 495- 
 
 A principal having retained doubt- 
 ful notes about two years after settlement 
 is not entitled to recover against the 
 agent. Piano Mfg. Co. v. Buxton, so 
 N. Western Repr. (Minn.) 668. 
 
 Where an agent has wrongfully taken 
 the property of his principal and sold it, 
 not as agent, but on his own account, mere 
 silence on the part of the owner does not 
 confirm the sale. The owner, upon dis- 
 covery of the wrong, is not required to- 
 make immediate efforts to regain his 
 property; and silence, short of the time 
 prescribed by the sti^tute of limitations, 
 will not bar his claim. Hamlin v. Sears, 
 82 N. Y. 327. 
 
 The rule of silent ratification applies 
 only to principals, not to joint agents so 
 as to ratify individual acts. Penn v, 
 Evans, 28 La. Ann. 576. 
 
 Where an agent for disbursing funds 
 makes a report to his principal, shoyving 
 his disbursements, and accompanied with 
 a draft for the balance in his hands, the 
 principal must within a reasonable time 
 (a question for the jury) examine the re- 
 port, and make known to the agent any 
 objections which he may desire to make 
 thereto. Failing so to do within a rea- 
 sonable tiihe, his silence will be treated 
 as a ratification of the agent's disburse- 
 ments. Minnesota, etc., Co. v. Mon- 
 tague, 65 Iowa, 67. 
 
 The cashier of a bank offered a re- 
 ward. Held, the failure of the directors to 
 disavow the act constituted a ratification. 
 Kelsey tj. Nat. Bank, 69 Pa. St. 426. 
 See Walworth, etc.. Bank v. Farmers, 
 etc.. Bank, 16 Wis. 629. 
 
 Where an attachment was sued out by 
 an agent without authority and the prin- 
 cipal did not repudiate the suit, he is lia- 
 ble in damages. Pollock v. Gantt, 69 
 Ala. 374; s. c, 44 Am. Rep. 519, 
 
 Where one stands silently by and hears 
 a contract made for him by another, he 
 is bound by such contract, James v. 
 
Batification. 
 
 AGENCY. 
 
 Slight Evidence Sufficient. 
 
 his agent, he must have full notice of such acts. But such notice 
 may be given to another agent of the principal where the matter 
 is within the scope of his agency, and such notice will affect the 
 principal, although not communicated to him.'- 
 
 Agent Must have been Appointed. — A failure to disavow the acts 
 of one who acted as an agent, but who had no appointment, and 
 acted as a mere volunteer, will not be a ratification. In such case 
 an express ratification is necessary.* ' 
 
 Slight Evidence Sufficient. — In some instances slight evidence 
 of ratification is sufficient to bind the principal.^ 
 
 Russell, 92 N. Car. 194; Bronson v. 
 Chappell, 12 Wall. (U. S.) 681. 
 
 The agent of a partnership caused the 
 arrest and imprisonment of parties in- 
 debted to the firm. The partners had no 
 knowledge of the Arrest until the parties 
 were in prison, when the agent informed 
 one of the partners, who made no in- 
 quiry as to the grounds of the arrest, and 
 gave no directions in the matter. Held, 
 this was a virtual ratification and adop- 
 tion of what had been done by the'agent, 
 and that the firm were responsible for the 
 ■ agent's acts.' Forbes v. Hagman, 75 
 Va. 168. 
 
 Where the principal gave her agent a 
 sum of money to make some repairs on 
 her property, and the agent made repairs 
 far in excess of the amount allowed, and 
 bought the materials on credit, it was 
 held that the principal, knowing of the 
 progress of the work and making no ob- 
 jection, had assented to the increased 
 expenditure. Paine u. Tillinghast, 52 
 Conn. 532. 
 
 Where the owner of land had for a 
 long time neglected to look after it, and 
 at his death it appeared that an agent 
 with a power of attorney had sold it for 
 its own use, the heirs were prevented 
 from setting aside the conveyance. 
 Harrimond z*. Hough, 52 Tex. 63; Crane 
 V. Bedwellj 25 Miss. 507; Abbe v. Rood, 
 6 McLean (U. S.), 106. 
 
 1. Union Gold Min. Co. v. Rocky Mt. 
 Nat. Bank, 2 Colo. 565; s. c, 96 U. S. 
 640; Hoffman v. Livingston, 46 N. Y. 
 .Super. Ct. 552. 
 
 The record of a deed executed by an 
 agent without authority is not per se 
 notice to the principal. Reese v. Med- 
 lock, 27 Tex. 120. 
 
 There can be no ratification of an 
 agent's acts by the principal without a 
 knowledge of the material facts; thus, A 
 fraudulently obtained possession of a 
 chest of tea by ordering it of the plaintiff 
 in the name of the defendant, who re- 
 ceived a bill or invoice of the tea, and 
 delivered the bill to A on his request and 
 
 ,on being told by A that he ordered it as 
 he did lest it might be attached; but A 
 did not tell the defendant that it was 
 bought on his credit, and defendant gave 
 no notice that he was not the purchaser. 
 Held, that the mere silence of the defend- 
 ant was not a ratification. SayvUle v. 
 Welch, 58 Vt. 683. 
 
 The principal may, upon learning that 
 the agent exceeded his, authority, repu- 
 diate the act without restoring the prop- 
 erty , 'if , before he learned of the unauthor- 
 ized act, he had disposed of the property 
 so that he could not restore it, or if its 
 restoration would be of no practical value 
 to the other party. Humphrey v. Havens, 
 12 Minn. 298. 
 
 2. Ward v. Williams, 26 111. 451; s. c, 
 79 Am. Dec, 385; Ladd v. Hildebrant, 
 27 Wis. 135. Compare Miller v. Excelsior 
 Stone Co., I 111. App. 279; Saveland w. 
 Green, 40 Wis. 431, 438; Phila., etc., R, 
 Co. V. Cowell, 28 Pa. St. 329; s. c, 70 
 Dec. 128. 
 
 Neither is the principal bound promptly 
 to disavow the act of one whose agency 
 was revoked. Kelly v. Phelps, 57 Wis. 
 
 425. 
 
 3. Conn v. Penn., i Pet. (U. S. C. C.) 
 496; Loraine v. Cartwright. 3 Wash. (U. 
 S.) 151; Richmond Mfg. Co. v. Slarks, 
 4 Mason (U. S-), 296; Bank of Columbia 
 V. Paterson, 7 Cranch (U; S.), 299; Terril 
 V. Flower, 6 Martin (La.), 584; Rogers 
 V. Kneeland, 13 Wend. (N. Y.) ii4;Cod- 
 wise V. Hacker, i Cai. (N. Y.) 526; 
 Cooper V. Schwartz, 40 Wis. 54; Blakely 
 V. Graham, iii Mass. 8. 
 
 When the unauthorized act is done in 
 the execution of a. power conferred in a 
 mode not sanctioned by its terms and in 
 excess or misuse of the authority given, 
 ratification is more readily implied from 
 slight acts of confirmation. Harrod v. 
 McDaniels, 126 Mass. 415; Myers v. Mut. 
 Ins. Co., 32 Hun (N. Y.), 321. 
 
 Much less evidence of assent may be 
 required in a case where the money has 
 come to the principal's use, and has been 
 expended in a manner advantageous to 
 
 443 
 
TeTmination of Agency. 
 
 AGENCY. 
 
 By Limitation. 
 
 But an act of ratification, in order to be sufficient, must 
 "be something by which the party, by relying upon it, has been 
 prejudiced. 1 
 
 18. Termination of Agency. — By Limitation. — Whenever an ex- 
 press agreement exists limiting the agency either to some definite 
 object, or for some definite time, as, for instance, where a man is 
 authorized to buy a quantity of merchandise according to sample, 
 -or to buy generally for a year, there being at the same time a 
 condition that the employment shall continue in the one case 
 until the merchandise has been bought, and in the other until the 
 year has expired, the agency will be dissolved in due course by 
 the happening of these results respectively.** 
 
 him, than would otherwise be necessary. 
 Harris v. School Disc, 28 N. H. 58; 
 Wilson V. School Dist., 32 N. H. 118; 
 Breed v. Bank, 6 Colo. 235. 
 
 1. Doughaday v. Crowell, 11 N. J. Eq. 
 201. 
 
 Neglect to give notice of dissent does 
 not always operate to ratify an act; that 
 principle applies only to a case where the 
 party neglecting to give such notice is 
 benefited or the otlier party injured 
 thereby. Whittemore u. Hamilton, 51 
 Conn. 153; Johnston v. Berry, 3 111. 
 App. 256. 
 
 When a house was nearly completed 
 the builder gave the defendant a written 
 ■statement of the extra work and mate- 
 rials ordered by the superintending archi- 
 tect beyond the scope of his authority, to 
 which the latter made no objection at the 
 time. Held, that he was not estopped 
 (hereby from making the objection after- 
 wards. The extra work and materials 
 had then gone into the building and could 
 not be withdrawn, so that, as to these 
 extras, the builder was not led into any 
 action resulting in loss to him by the 
 defendant's failing to make the objection. 
 Some other extras were afterwards or- 
 dered by the architect and furnished by 
 the builder; but it did not appear that the 
 iDuilder suggested at the time of exhibit- 
 ing his first bill of extras to the defendant 
 that more extras might be so ordered or 
 that either party thought of the matter. 
 Held, that the defendant was not 
 •estopped, by his failure to object to the 
 first bill, from denying the architect's 
 authority to order the later extras. Stark- 
 weather V. Goodman, 48 Conn. loi; s. 
 c, 40 Am. Rep. 152. 
 
 2. Short V. Millard, 68 111. 292; Irby 
 ■V. Lawshe, 62 Ga. 216. 
 
 The authority of a broker, who is not 
 a general agent to place and manage in- 
 surance on his principal's property, but 
 is specially employed to procure insur- 
 
 ance on certam property, terminates 
 with the prcjcurement of the policy; no 
 authority can be implied from the origi- 
 nal employment to discharge the con- 
 tract. Hermann v. Niagara Ins. Co., gg 
 N. Y. 413. 
 
 Where an agent is employed to secure 
 a debt of his principal which he does by 
 taking the indorsement of notes by the 
 debtor to his principal, his agency does 
 not cease while he still holds the notes, 
 and his acts have not been approved by his 
 principal. Until such notes are accepted 
 by the principal, the agent's declarations 
 are admissible in evidence against the 
 principal. Wallace v. Goold, gi 111. 15. 
 
 Where an agen't is appointed to borrow 
 money for his principal, and before he 
 succeeds the necessity of borrowing 
 ceases; held to terminate the agency. 
 Benoit v. Conway. 10 Allen (Mass.), 528. 
 
 An agency to find a purchaser termi- 
 nates as soon as the purchaser is found, 
 so as to enable him to receive remunera- 
 tion from the purchaser to see that the 
 papers in the transaction are properly 
 executed. Short v. Millard. 68 III. 2g2; 
 Moore v. Stone, 40 Iowa, 259; Walker v. 
 Derby,- 5 Biss. (U. S.) 134. 
 
 Where an agent was appointed for the 
 sale of machines and the only provision 
 in regard to the duration of the agency 
 was an agreement by the principal to fur- 
 nish the agent such number of machines 
 as he could sell prior to a certain date, 
 held, that the agency terminated at that 
 date so as to discharge the agent's sure- 
 ties. Gundlach v. Fischer, 5g III. 172. 
 
 Where a contract with a railroad com- 
 pany provided that it might be termi- 
 nated by a written notice for thirty days, 
 to be signed by a person designated in 
 the contract, it was held that the agent 
 giving the notice had the power to recall 
 it before the expiration of the thirty days. 
 Patrick w. Richmond, etc., R. Co., 93 
 N. Car. 422. 
 
 443 
 
Teimination of Agency. 
 
 AGENCY 
 
 By Act of Principal,. 
 
 By Act of Principal. — A principal who employs an agent majr 
 revoke the appointment at any time.* And 
 
 Appointment under Seal, Revoked by Parol. — This principle has 
 been so well established that it even has been held that the 
 authority of an agent appointed under seal may be revoked by 
 parol.** 
 
 May be Implied. — The revocation of an agency by the principal 
 need not be expressed in words. It may be implied from his acts.* 
 
 1. Succession of Babin, 27 La Ann. 
 114; Jacobs V. Warfield, 23 La. Ann. 
 395; Spear v. Gardner, 16 La. Ann. 383; 
 Peacock v. Cummings, 46 Pa. St. 434; 
 Coffin V. Landis, 46 Pa. St. 426; Black- 
 stone V. Buttermore, 53 Pa. St. 266; 
 Trust V. Repoor, 15 How. Pr. (N. Y.) 
 570; Tyler v. Ames, 6 Lans. (N. Y.) 280; 
 Wells V. Hatch., 43 N. H. 246; Attrill v. 
 Patterson, 58 Md. 226; Walker v. Den- 
 nison, 86 111. 142. 
 
 If the principal gives his agent an order, 
 but countermands it before it is acted 
 upon, the principal will not be respon- 
 sible for what the agent does under the 
 order. Tucker v. Lawrence, 56 Vt.467. 
 
 If a principal hands over to his agent 
 a sura of money wherewith to make a 
 purchase or to be invested or to pay a 
 debt, he may, any time before the money 
 is used, revoke the authority, and require 
 the money to be repaid to him. Howard 
 College V. Pace, 15 Ga. 486; Simonton 
 V. First Nat. Bank, 24 Minn. 2i5; Dole 
 V. Bodman, 3 Mete. (Mass.) 139; Kelly 
 V. Roberts. 40 N. Y. 432. 
 
 Where a principal handed a sum of 
 money to an agent to be used in settling 
 a law-suit between two parties, the prin- 
 cipal receiving no consideration for the 
 money, held, that he could revoke the 
 power at any time before a settlement 
 was completely effected. Phillips v. 
 Howell, 60 Ga. 411; Lewis v. Sawyer, 
 44 Me. 332. 
 
 An attorney receiving a claim for col- 
 lection stated in his receipt therefor that 
 the money when collected was to be paid 
 to a third party. Held, thit this was 
 merely an authority to the attorney to 
 dispose of the proceeds of the claim in 
 that manner, and such authority could 
 at any time be revoked. Swartz v. 
 Earls, 53 111. 237. 
 
 If a principal delivers property to an 
 agent for sale he can at any time before 
 the sale actually takes place revoke the 
 power of sale and require such property 
 to be restored to him. Chambers v. Seay, 
 73 Ala. 372; Brown v. Pforr, 38 Cal, 550. 
 
 But if the goods had been offered to a 
 customer at an authorized price and the 
 agent had agreed to let the offer remain 
 
 open for two days, and before the time- 
 expired the principal notified the agent 
 not to sell at the stated price, it was; 
 held that the principal was bound by- 
 the agent's act. Meister v. Cleveland 
 Dryer Co., 11 111. App. 227. 
 
 Where a broker was engaged to sell 
 land within a certain time, and his prin- 
 cipal revoked the agency before the time- 
 expired, and he found a customer after 
 the revocation, but within the time spe- 
 cified, he was held not to be entitled to his: 
 commission. Brown v. Pforr, 38 Cal. 550. 
 
 A sub-contractor received money of the- 
 general contractor in excess of what was. 
 due him, as the agent of the general con- 
 tractor, to pay debts due to laborers and 
 material-men, whereby to protect the 
 principal from liability from the enforce- 
 ment of liens, but instead of paying out 
 the money deposited it with another for 
 safe keeping, under a promise of the lat- 
 ter to pay the same only to the depositor, 
 or upon his written order. The deposi- 
 tary, on the demand of the principal to- 
 whom the money belonged, delivered 
 the same to him. It was held the de- 
 positary was not liable to the agent for a 
 breach of his contract, the principal hav- 
 ing the right to revoke the agency of the- 
 sub-contractor at any time before he paid 
 out the money as directed. In such case 
 the delivery of the money to the true- 
 owner will relieve the depositary of lia 
 bility to the agent from whom he received 
 it. Solomon v. Nicholas, 113III. 351. 
 
 2. Brookshire v. Brookshire, 3 Ired. 
 (N. Car.) 74; s. v,., 47 Am. Dec. 341; 
 Pickler v. State, 18 Ind. 266; Hender- 
 son V. Hydraulic Works, 9 Phil. (Pa.) 100; 
 United States v. Jarvis, Davies (U. S.), 
 274. 
 
 3. As by a sale of the subject-matter of 
 the agency. Walker v. Denison, 86 111. 
 142; Gilbert v. Holmes, 64 111. 548. 
 
 Any disposition by the principal of the- 
 subject-matter, such as an assignment 
 for the benefit of creditors, inconsistent 
 with the appropriation first intended, will 
 be a revocation. Simonton v. First Nat. 
 Bank. 24 Minn. 216; Trumbull &. Nichol- 
 son, 27 111. 149. 
 
 Demand for a note sent to a bank as; 
 
 444 
 
Termination of Agency. 
 
 AGENCY. 
 
 Naked Power Kevokable, 
 
 By Act of Agent. — An agent can terminate the agency at any 
 time; but if the agency has been undertaken for a valuable con- 
 sideration he will be liable in damages to his principal, and in 
 many cases he will be required to give reasonable notice. ^ 
 
 Naked Power Revocable. — As a general rule any naked power is 
 revocable, and even an express declaration that it is irrevocable 
 will not prevent its revocation.** 
 
 Not when Coupled with Interest. — If the power is coupled with a 
 vested interest it cannot be revoked.* 
 
 an agent for collection terminates the 
 agency. Potter v. Merchants' Bank, 28 
 N. Y. 654. 
 
 So will payment of the agent for his 
 services under suitable circumstances. 
 Moore v. Stone, 40 Iowa, 259; Reid v. 
 Latham, 40 Conn. 452. 
 
 Where a principal takes the subject- 
 matter of the agency out of the hands of 
 the agent by performing the work him- 
 s"elf, the agency will be revoked. Torre 
 V. Thiele, 25 La. Ann. 418. 
 
 The appointment of a general agent 
 revokes a special agency. Rapier v. 
 Louisiana, etc.. Ins. Co., 57 Ala. lOl. 
 
 A power which is silent as to a similar 
 power given previously to another agent 
 does not work a revocation. Hatch v. 
 Coddington, 95 U. S. 48. 
 
 Neither does the appointment of an- 
 other agent when this is not incompatible 
 with the continuancy of the first agency. 
 Davol V. Quimby, 11 Allen (Mass.), 208. 
 Compare Copeland v. Merc. Ins. Co., 6 
 Pick. (Mass.) ig8. 
 
 The appellant and the appellee entered 
 into a written contract on the 7th day of 
 July, 1880, wherein the former agreed to 
 pay the latter three per cent commission 
 for selling real estate; subsequently a 
 verbal contract was made, wherein it was 
 agreed that the appellee should enter the 
 service- of the appellant at a compensa- 
 tion of one dollar and twenty-five cents 
 per day, but there was evidence showing 
 that the written contract was not modified 
 or abrogated; and that the compensation 
 stipulated in the verbal contract was for 
 managing appellant's general business. 
 Held, that the verbal contract did not 
 necessarily supersede the original written 
 agreement and prevent the agent from 
 recovering commissions for services per- 
 formed under it. Smith v. Lane, loi 
 Ind. 449. 
 
 A power of attorney, executed by the 
 widow and heirs of decedent, empower- 
 ing an agent to complete a contract made 
 by decedent, is not revoked by a grant 
 of administration to the widow two days 
 thereafter, and payments to him as agent 
 
 held to be good. Jones v. Commercial 
 Bank of Ky., 78 Ky. 413. 
 
 1. Barrows v. Cushway, 37 Mich. 481; 
 Case V. Jennings, 18 Tex. 661; Stoddart 
 V. Key, 62 How. Pr. (N. Y.) 137; White 
 V. Smith, 6 Lans. (N. Y.) 5; Bender v. 
 Manning, 2 N. H. 289; Gill v. Middleton,. 
 105 Mass. 477. 
 
 2. Chambers v. Seay, 73 Ala. 372; 
 MacGregor v. Gardner, 14 Iowa, 326; 
 Blackstone v. Buttermore, 53 Pa. St. 266; 
 Peacock v. Cummings, 46 Pa. St. 434; 
 Succession of Babin, 27 La. Ann. 114; 
 Jacobs V. Warfield, 23 La. Ann. 395;. 
 Pickler v. State, l8 Ind. 266; Trust v. 
 Repoor, 15 How. Pr. (N. Y.) 570; Knapp 
 ■V. Alvord, 10 Paige (N. Y.), 205; s. c, 
 40 Am. Dec. 241; Marfield v. Douglass,. 
 I Sandf. Sup. Ct. (N. Y.) 360; Wells v. 
 Hatch, 43 N. H. 246; Gibbons v. Gib- 
 bons, 4 Harr. (Del.) 105; Walker w. Deni- 
 son, 86 111. 142; Attrill v. Patterson, 58 
 Md. 226. ^ 
 
 A power stipulating that it is not to be 
 revoked within two years may be re- 
 voked at any time. Walker v. Denison, 
 86 111. 142. 
 
 Where there is no valuable considera- 
 tion passed for the agreement on the part 
 of the agent, there was no power coupled 
 with an interest, and the agency could at 
 anytime be terminated on notice. Simp- 
 son V. Carson, 11 Oregon, 361. 
 
 3. Chambers v. Seay, 73 Ala. 372; 
 Hynson v. Noland, 14 Ark. 710; Hill v. 
 Day, 34 N. J. Eq. 150; Matthieson, etc., 
 Co. V. McMahon, 9 Vroom (N. J.). 546; 
 Hartley's Appeal, 53 Pa. St. 212; Black- 
 stone V. Buttermore, 53 Pa. St. 266; 
 Smyth V. Craig, 3 W. & S. (Pa.) 14; 
 Brown v. Pforr, 38 Cal. 550; Posten v. 
 Rassette, 5 Cal. 467; Barr v. Schroeder, 
 32 Cal. 609; Walker v. Denison, 86 III. 
 142; Bonney v. Smith, 17 111. 531; Gil- 
 bert V. Holmes, 64 111. 548; Wheeler v. 
 Knaggs, 8 Ohio, 169; Mansfield w. Mans- 
 field, 6 Conn. 559; s. c, 16 Am. Dec. 76; 
 Hutchins v. Hebbard, 34 N. Y. 24; Mar- 
 field V. Goodhue. 3 N. Y. 62; Goodwin 
 V. Bowden,' 54 Me. 424; Brookshire v. 
 Voncannon, 6 Ired. L. (N. Car.) 231; 
 
 445 
 
Termination of Agency. 
 
 AGENCY. 
 
 Death of Principal. 
 
 Interest must be in Subject-matter. — But the interest must be in 
 the subject-matter of the agency itself ; an interest in the proceeds 
 to arise as compensation for executing the power will not make it 
 irrevocable.^ 
 
 Not when Conferred for a Consideration. — Where an agency is 
 conferred for a valuable consideration it is irrevocable.* 
 
 Revocation by Operation of Law — Death of Principal. — Death of 
 either principal or agent instantly ends the agency as regards all 
 parties, unless the agency is coupled with an interest.^ 
 
 Hunt V. Rousmaniere, 8 Wheat. (U..S.) 
 174; Attrill V. Patterson, 58 Md. 226. 
 
 A power of attorney to collect a debt 
 to secure previous advances by the agent 
 is irrevocable, but as far as the agent is 
 concerned only to the amount of those 
 advances. Marziou v. Pioche, 8 Cal. 
 522. 
 
 1. Chambers v. Seay, 73 Ala. 372; 
 Blackstone v. Buttermore, 53 Pa. St. 
 266; CoiEn 1/. Landis, 46 Pa. St. 426; 
 Hartley-'s Appeal, 53 Pa. St. 212; Bon- 
 ney v. Smith, 17 111. 531; Gilbert v. 
 Holmes, 64 111. 548; Le Moyne v. Quimby, 
 70 111. 399; Walker v. Denison, 86 111. 
 142; Mansfield v. Mansfield, 6 Conn. 
 55g; s. c, 16 Am. Dec. 76; Barr v. 
 Schroeder, 32 Cal. 609; Travers v. Crave, 
 15 Cal. 12; Hunt v. Rousmaniere, 8 
 Wheat. (U. S.) 174; Houghtailing v. 
 Marwin, 7 Barb. (N. Y.) 412; Attrill v. 
 Patterson, 58 Md. 226; Raleigh v. At- 
 kinson, 6 M. & W. 670. Compare Merry 
 V. Lynch, 68 Me. 94. 
 
 A agreed to pay B all oyer $15,500 
 realized upon the sale of property. B 
 sold the property for $20,000. A repudi- 
 ated the contract, and B sued to recover 
 commissions. Held, that where there is 
 no valuable consideration passed for the 
 agreement on the part of the broker, there 
 was no power coupled with an interest, 
 and the agency could at any time be ter- 
 minated on notice. Simpson v. Carson, 
 II Oregon, 361; s. c, 8 Pac. Repr. 325. 
 
 A power of attorney to confess a judg- 
 ment is not revocable by act of the party 
 giving it. Enne v. Clark, 2 Pa. St. 234; 
 Marziou v. Pioche, 8 Cal. 522; Kindig 
 V. March, 15 Ind. 248. Compare Judson 
 V. Sierra, 22 Tex. 365 ; Spear v. Gard- 
 ner, 16 La. Ann. 383; United States v. 
 < Jarvis, Dav. (U. S.) 274. 
 
 3. Huntw. Rousmaniere, 8 Wheat. (U. 
 S.) 174; Walker v. Denison, 86 111. 142; 
 Blackstone o. Buttermore, 53 Pa. St. 
 266. 
 
 If a consideration is given to make the 
 power irrevocable, it cannot be revoked. 
 Guthrie v. Wabash, etc., R. Co., 40 111. 
 log; MacGregor v. Gardner, 14 Iowa, 
 326. 
 
 When the consideration fails the agency 
 becomes revocable. Ex-p. Smither, i 
 Deac. 413. 
 
 3. Scruggs V. Driver,. 31 Ala. 274; 
 Saltmarsh v. Smith, 32 Ala. 404 ; Travers 
 V. Crane, 15 Cal. 12; Ferris v. Irving, 28 
 CaL 645; McGriff v. Porter, 5 Fla. 373; 
 Turnan v. Temke, 84 111. 286; Johnson 
 V. Wilcox, 25 Ind. 182; Lewis v. Kerr, 17 
 Iowa, 73; Harpers'. Little, 2 Me. 14; s. 
 c, II Am. Dec, 25; Gleason v. Dodd, 4 
 Mete. (Mass.) 333; Marlett v. Jackman, 
 3 Allen (Mass.), 287; Gale v. Tappan, 12 
 N. H. 145; s. c, 37 Am. Dec. 194; Wil- 
 son V. Edmonds, 24 N. H. 517; Shiff v. 
 Lesseps, 22 La. Ann. 185; Clayton v. 
 Merrett, 52 Miss. 353; Peries v. Aycinena, 
 3 Watts & S. (Pa.) 64; Riggs v. Cage, 2 
 Humph. (Tenn.) 350; Primm t'. Stewart, 
 7 Tex;. 17/8; Cleveland v. Williams, 29 
 Tex. 205; McDonald f. Black, 20 Ohio, 
 185; s. c, 55 Am. Dec. 448; Michigan 
 Ins. Co. V. Leavenworth, 30 Vt. 12; 
 Davis V. Windsor Sav. Bank, 46 Vt. 728; 
 Nichols V. Chapman, '9 Wend. (N. Y.) 
 452; Gait V. Galloway, 4. Pet. (U. S.) 
 341; Hunt V. Rousmaniere, 8 Wheat. (U. 
 S.) 174; Clark z-. Courtney, 5 Pet. (U. S.) 
 319; Hunt V. Ennis, 2 Mason (U. S.), 
 244. Compare Ish v. Crane. 8 Ohio St. 
 520; s. c, 13 Ohio St. 574; Dick v. Page, 
 17 Mo. 234; s. c, 57 Am. Dec. 267; 
 Carringer v. Whittington, 26 Mo. ,311; s. 
 c. , 72 Am. Dec. 212; Cassiday v. McKen- 
 zie, 4 Watts & S. (Pa.) 282; s. c. , 39 
 Am. Dec. 505. 
 
 The death of the principal is per se a 
 revocation of the agent's authority, and 
 hence all contracts or other engagements 
 subsequently entered in to by the agent 
 are absolutely void as to the legal repre- 
 sentatives of the principal, notwithstand- 
 ing the death of the principal may have 
 been unknown at the time such contracts 
 or engagements were entered into. Est. 
 of Rapp V. Phoenix Ins. Co., 113 111. 390. 
 
 But if the power is coupled with an in- 
 terest the death of the principal does not 
 work a revocation. Hunt v. Rous- 
 maniere, 8 Wheat. (U. S.) 174; Knapp v. 
 Alford, 10 Paige Ch. (N. Y.) 205; s. c, 
 40 Am. Dec. 241; Hess v. Rau, 95 N. Y, 
 
 446 
 
Termination of Agency. 
 
 ■ A GENC Y. Death or Insanity of Principal. 
 
 Innocent Third Parties. — In some States it has, however, been 
 held that acts done by the agent after the death of the principal, 
 but before notice of his death has reached him, binds the princi- 
 pal's estate so as to protect innocent third parties.^ 
 
 Revokes Power of Sub-agent. — The death of the agent extin- 
 guishes his power and revokes the power of his sub-agent.** 
 
 By Lunacy. — The principal's insanity operates, per se, as a revo- 
 cation or suspension of the agent's authority, except in cases 
 where a consideration has previously been advanced in the trans- 
 
 cannot be made valid by the consent of 
 the party to whom the land descends. 
 
 Where an agent of a firm, authorized 
 to draw checks against the firm's bank 
 account for the use of the firm continues 
 to do so after the death of one of the 
 members of the firm, both he and the 
 bank being in ignorance of the death, 
 checks so drawn will bind the firm. The 
 authority of such agent continues in qual- 
 ified form after the death of one of the 
 members of the firm. Bank of N. Y. v. 
 Vanderhorst. 32 N. Y. 553; Merry v. 
 Lynch, 68 Me. 94; Wilson v. Edmonds, 
 24 N. H. 517; Primm v. Stewart, 7 Tex. 
 178. 
 
 In case of joint principals, the death 
 of one of them revokes the authority of 
 the agent. Travers v. Crane, 15 Cal. 12; 
 Marietta. Jackman, 3 Allen (Mass.), 287; 
 Johnson v. Wilcox, 25 Ind. 182. 
 
 But the death of one of two or more 
 joint and several principals as trustees, 
 does not necessarily extinguish the agent's 
 power. Wilson v. Stewart, 5 Pa. L. J. 
 Rep. 450. 
 
 2. Merrick's Estate, 8 W. & S. (Pa.) 
 402; Gage V. Allison, i Brev. (S. Car.) 
 495; s. c, 2 Am. Dec. 682; City Council 
 V. Duncan, 3 Brev. (S. Car.) 386; Watt 
 V. Watt, 2 Barb. Ch. (N. Y.) 371; Jack- 
 son Ins. Co. v. Partee, 9 Heisk. (Tenn.) 
 296. Compare Smith v. White, 5 Dana 
 (Ky.), 376. 
 
 And where the agent has dealt with 
 third parties in his own name, and moneys 
 are due the agent on his principal's ac- 
 count, his administrators have no author- 
 ity to collect the money. The third party 
 becomes the debtor of the principal ex- 
 clusively. Jackson Ins. Co. 11. Partee, 
 9 Heisk. (Tenn.) 296. 
 
 Where an agent has a power of substi- 
 tution, and exercises it, his death revokes 
 the authority of the substitute. Lehigh, 
 etc., Co. w. Mohr,' 83 Pa. St. 228; s. c, 
 24 Am. Rep. 161. 
 
 Where two agents are appointed to 
 .perform a duty, the death of one revokes 
 the authority of the other. Salisbury v. 
 Brisbane, 6i N. Y. 617; Harttord Fire 
 Ins. Co. V. Wilcox, 57 111. 180. 
 
 359; Bergen v. Bennett, i Cai. (N. Y.) i; 
 s. c, 2 Am. Dec. 281; Houghtailing w. 
 Marvin, 7 Barb. (N. Y.) 412; Varnum z/. 
 Meserve, 8 Allen (Mass.), 158; Merry v. 
 Lynch, 68 Me. 94; Goodwin v. Bowden, 
 54 Me. 424; Travers v. Crane, 15 Cal. 
 12; Gilberts. Holmes, 64 111. 548; Bon- 
 ney v. Smith, 17 111. 531. 
 
 An agent received for collection certain 
 notes. Before the notes fell due the 
 principal died and the makers because 
 insolvent. The agent did not make 
 effort to collect the notes. Held, that the 
 agent's power ceased with the death of 
 the principal, aftej which he had no au- 
 thority to collect the notes. Darr u. 
 Darr, 59 Iowa, 81. 
 
 An indorsement of negotiable paper 
 for the purpose of collection passes the 
 legal title in trust, and the authority to 
 collect is not revoked by the death of the 
 owner. Moore v. Hall, 48 Mich. 143. 
 
 Where a broker had sold stock short 
 for a customer, and in accordance with^ 
 the usual custom had borrowed the stock 
 for delivery, becoming himself obligated 
 to return the borrowed stock, and bor- 
 rowing from time to time as required to 
 replace the stock previously borrowed, 
 and while the transaction was so kept 
 alive the customer died; held, that the 
 broker had authority, acting in good 
 faith, to continue it in the same manner 
 until the appointment and qualification of 
 a legal representative of the estate of the 
 deceased, upon whom the proper notice 
 could be served in order to close it. Hess 
 V. Rau, 95 N. Y. 359. 
 
 1. Cassiday v. McKenzle, 4 W. & S. 
 (Pa.) 282; s. c., 39 Am. Dec. 505; Wil- 
 son V. Stewart. 1; Pa. L. J. Rep. 450; Car- 
 rigerw. Wimuugton, 26 Mo. 311; s. c, 72 
 Am. Dec. 212; Dick v. Page, 17 Mo. 234; 
 s. c, 57 Am. Dec. 267; Ish v. Crane, 8 
 Ohio St. 520; s. c, 13 Ohio St. 574; Bank 
 of N. Y. V. Vanderhorst, 33 N. Y. 553. 
 Compare Lewis v. Kerr, 17 Iowa, 73, 
 where it was held that a sale made by an 
 agent after the death of the principal and 
 in ignorance of that event, the agent hav- 
 ing merely a power to sell and no interest 
 in the property, is absolutely void, and 
 
 447 
 
Termination of Agency, 
 
 AGENCY. 
 
 Insanity — Bankruptcy, etc- 
 
 action which was the subject-matter of the agency, so that the 
 power has become coupled with an interest ; or where a consider- 
 ation of value is given by a third person, trusting to an apparent 
 authority, and in ignorance of the principal's insanity.^ 
 
 Insanity of Agent. — The case of the insanity of the agent would 
 seem to constitute a natural, nay, a necessary revocation of his. 
 authority, for the principal cannot be presumed to intend that 
 acts done for him and to bind him shall be done by one who is 
 incompetent to understand or to transact the business which he 
 is employed to execute.** 
 
 Bankruptcy. — The bankruptcy of a principal or an agent revokes 
 the agent's authority when not coupled with an interest.^ 
 
 Marriage. — The marriage of a woman does not of itself work a 
 revocation of her authority as an agent, but her marriage will, of 
 itself, operate as a revocation of any power she may have given as 
 principal.* 
 
 Dissolution of Partnership. — The dissolution of a partnership 
 works a revocation of an agency therefor.^ -" 
 
 War does not revoke an agency.* 
 
 Effect on Sub-agents. — Any revocation of authority of an 
 agent revokes the powers of his sub-agents.'' 
 
 When Bound after Revocation. — Acts of an agent*done after the 
 revocation of his agency bind both his principal and himself, so 
 far as they, regard third persons who have had no notice of the 
 revocation.* 
 
 A change in the name of a firm does 
 not revoke the agency. Billingsley v. 
 Dawson, 27 Iowa, 210. 
 
 6. Darling w. Lewis, 11 Heisk. (Tenn.) 
 125; Maloney v. Stephens, 11 Heisk. 
 (Tenn.) 738; Jones v. Harris, 10 Heisk. 
 (Tenn.)98; Shelby v. Offutt, 51 Miss. 128; 
 Murrell v. Jones, 40 Miss. 565. Compare 
 Howell V. Gordon, 40 Ga. 302; Ins. Co. 
 V. Davis, 95 U. S. 425; Fretz v. Storer, 
 12 Wall. (U. S.) 198; United States o. 
 Grossmayer, 9 Wall. (U. S.) 72; Conley 
 V. Burson, \ Heisk. (Tenn.) 145; Black- 
 well z/. Willard, 65 N. Car. 555; Robin- 
 son V. International Life Ass. Co., 42 N. 
 Y. 54; Sands v. N. Y. Life Ins. Co., 50 
 N. Y. 626; Manhattan Life Ins. Co. v. 
 Warwick, 20 Gratt. (Va.) 614. 
 
 7. Lehigh, etc., Co. v. Mohr, 83 Pa. 
 St. 228; s. c, 24 Am. Rep. 161; Jackson 
 Ins. Co. V. Partee, 9 Heisk. (Tenn.) 296. 
 
 Unless it be specially provided in the 
 contract that the revocation shall not so 
 operate. And such provision maybe im- 
 plied as in the case of the death or inca- 
 pacity of the master of a ship who has 
 appointed the mate. Story on Agency, 
 § 469. See also Shipping. 
 
 8. Eadie v. Ashbaugh, 44 Iowa, 519; 
 Gelpcke v. Quentell, 74 N. Y. 599; Mc- 
 Neiily v. Continental, etc., Ins. Co., 66 
 
 1. Hill V. Day, 34 N. J. Eq. 150; 
 Matthiesen, etc., Co. v. McMahon, 9 
 Vroom (N. J.), 546; Davis v. Lane, 10 
 N. H. 156; Wallis V. Manhattan Co., 2 
 Hall (N. Y.), 495; Motley v. Head, 43 
 Vt. 633; Bunce V. Gallagher, 5 Blatch. 
 (U. S,)48i. 
 
 2. Story on Agency, § 487. 
 
 3. Story on Agency. §§482, 486; Og- 
 den V. Gillingham, Baldwin (U. S.), 38; 
 In re Daniels, 13 Nat. Bank Reg. 46; Au- 
 denried v. Betteley, 8 Allen (Mass.), 302. 
 
 4. Story on Agency, §§ 481, 485; 
 Wamboole v. Foote, 2 Dak. i. 
 
 The marriage of a woman does not re- 
 voke her agency, where there is a vested 
 interest. Story's Agency, § 485: Enne v. 
 Clark, 2 Pa. St. 234. Compare Judson v. 
 Sierra, 22 Tex. 365. 
 
 If a woman retains the right to man- 
 age her paraphernal property without her 
 husband's assistance, her marriage will 
 not revoke the powers of an agent previ- 
 ously intrusted with its administration. 
 Reynolds v. Rowley, 2 La. Ann. 890. 
 
 A power to sell land given by a single 
 man is revoked by his marriage. Hen- 
 derson v. Ford, 46 Tex. 627. 
 
 6. Schlater v. Winpenny, 75 Pa. St. 
 321. Compare Bank of N. Y. v. Vander- 
 horst, 32' N. Y. 553. 
 
 448 
 
A GGREGA TE—A GGRIE VED. 
 
 AGGREGATE.— A number of things united into one.* 
 AGGRIEVED.— An injury ; a grievance.* 
 
 "N. Y. 23; Claflin v. Lenheim, 66 N. Y. 
 301; Barkley v. Rensselaer, etc., R. Co., 
 71 N. Y. 205; Marsh v. Gilbert, 4 Th. & 
 C. (N.Y.) 259; Rice v. Isham, 4 Abb. 
 App. Dec. (N. Y.) 37; Harris w. Cuddy, 21 
 La. Ann. 388; Hancocks. Byrne, 5 Dana 
 (Ky.), 514; Lamothe v. St. Louis, etc., R. 
 Co. 17 Mo. 204; Beards'. Kirk, 11 N. H. 
 .398; Diversy v. Kellogg, 44 111. 114; 
 Murphy ii. Ottenheimer, 84 111. 39; Mey- 
 er ». Hehner, 96 111. 400; Packer v. 
 Hinckley Locomotive Works, 122 Mass. 
 -484; Rice V. Barnard, 127 Mass. 241; 
 Wright V. Herrick, 128 Mass. 240; Mor- 
 ;gan z/. Stell, 5 Binn. (Pa.) 305; Jones v. 
 Hodgkins, 61 Me. 480; Brasvvell v. Am. 
 L. Ins. Co., 75 N. Car. 8; Ulrich v. Mc- 
 ■Cormick, 66 Ind. 243; Robertson v. 
 •eioud, 47 Miss. 208; Fellows u. Hart- 
 ford, etc., Steamb. Co., 38 Conn. 197; 
 Tier v. Lampson, 35 Vt. 179; Hatch v. 
 Coddington, 95 U. S. 48; Ins. Co. v. Mc- 
 ■Cain, 96 U. S. 84, 
 
 The agent also must have notice of the 
 levocation. A notice to a third party 
 without notice to the agent leaves the 
 power in force. Welle v. U. S., 7 Ct. of 
 "tl. 535; Robertson v. Cloud, 47 Miss. 
 208. 
 
 A foreign corporation leased its works 
 to its agent, who, without authority from 
 such corporation, continued to operate 
 the works in its name, and retained in 
 Tiis service an employee of the corpora- 
 tion without notice to him of the change. 
 Held, that the corporation was liable to 
 the employee. North Chicago, etc., Co. 
 -V. Hyland, 94 Ind. 448. 
 
 Defendant authorized plaintiff to honor 
 drafts of A. Shortly after he revoked 
 the authority. Before the revocation A 
 made drafts on the plaintiff which were 
 honored, but the drafts were not present- 
 -ed until after the notice of revocation 
 was received, and could not have been so 
 presented. Held, that defendant was lia- 
 ble to plaintiff for amount of drafts so 
 made. Gelpcke ». Quentell. 74 N. Y. 599. 
 
 The doctrine that a discharged agent 
 may, under some circumstances, bind his 
 former principal to the extent of the au- 
 thority with which he had been appar- 
 ently clothed, has no application beyond 
 the claim of authority made by the agent. 
 Accordingly, where an agent of plaintiff, 
 -after his discharge, which was unknown 
 to defendant, represented that he had 
 authority to draw upon his principal, but 
 not that he had authority to procure an 
 .accommodation indorser, held that the 
 •principal was not bound to indemnify de- 
 
 fendant for indorsing the discharged 
 agent's draft, which the principal refused 
 to pay, notwithstanding the principal had 
 honored several other drafts drawn by 
 the agent before his discharge and in- 
 dorsed by the defendant. Bandowinew. 
 Grimes, 64 Iowa, 370. 
 
 Two agents of different principals 
 agreed to settle the indebtedness of each 
 agent to his principal by a transfer of ac- 
 counts, and by a payment by one agent 
 to the other of the difference in cash. 
 Before the agreement was executed the 
 agency of the one who was to pay was 
 revoked. Held, that the arrangement 
 thus came to an end. and could not be en- 
 forced by the principal. Providence Gas 
 Burner Co. v. Barney, 14 R. I. 18. 
 
 For a full statement of the law on 
 agents for Private Corporations, see Pri- 
 vate Corporations. Also, for the law 
 on Public Agents, see Municipal Cor- 
 porations ; and the titles Attorneys at 
 Law; Auctioneers; Brokers; Collec- 
 tion Agencies; Commercial Agents, 
 or Drummers; Commission Merchants, 
 or Factors; Power of Attorney; Ship- 
 masters, for the law regarding those 
 particular classes of agents. 
 
 1. Aggregate Payments. — A city ordi- 
 nance provided for the grading, curbing, 
 etc., of twenty streets. The city charter 
 required that every ordinance shall contain 
 a specific appropriation fr im the proper 
 fund for the whole of the cost of each 
 street, etc.. and that every contract shall 
 contain a clause to the effect that it is 
 subject to the provisions of the charter 
 that the aggregate payments thereon shall 
 be limited by the amount of such work, 
 specific appropriation, based upon an es- 
 timate of cost indorsed by the engineer. 
 It was contended in this case that "aggre- 
 gate payments" was theamount to be paid 
 for the whole work, and not the amount 
 paid by the city alone. The court held 
 "aggregate payments" applied only to 
 the payments to be made by the city treas- 
 ury. Seibert v. Covender, 3 Mo. App. 
 
 423. 
 
 2. A statute provided that if the Secre- 
 tary of State shall neglect or refuse to 
 perform the duties enjoined on him by 
 law, ... he shall pay to the person ag- 
 grieved a sum not less than one hundred 
 dollars, etc. The question before the 
 court was whether the plaintiff was ag- 
 grieved by the refusal of the secretary, 
 after a decision by a proper tribunal 
 against the plaintiff, to open and cast up 
 election returns, when by so doing the 
 
 449 
 
Definition, 
 
 AGGRIEVED PERSON. 
 
 Definition, 
 
 AGGRIEVED PERSON.— One whose rights are concluded or in- 
 juriously affected.^ 
 
 plaintiff would be entitled to a certificate 
 of election. The court: " It cannot be 
 said that a person is not aggrieved by the 
 refusal of the secretary to cast up the 
 votes returned for him. He has a right 
 lo have all the votes counted that have 
 been cast for him, and it is a personal as 
 virell as' a public wrong to refuse to count 
 them. A denial of this right is an injury, 
 a grievance, and the statute furnishes a 
 redress." Swityler v. Rodman, 48 Mo. 
 199. 
 
 A candidate at an election is aggrieved 
 by the mere fabrication of a voting-paper, 
 whether or not the fabricated voting-paper 
 can have any influence on the return of 
 the candidates at the election. Lush, J., 
 in Verdin v. Wray, 2 Q. B. Div. 609. 
 
 Party Aggrieved. — "A party cannot be 
 said to be 'aggrieved' unless error has 
 been committed against him. The law 
 seems to be well settled that a party can- 
 not take an appeal from a judgment in 
 his own favor." Sherwood, C. J., in 
 Mevialy v. Macklin, 67 Mo. 95: " He is 
 aggrieved when an appealable order or 
 judgment is entered against him." Ely 
 V. Frisbie et al., 17 Cal 250. 
 
 A trustee has no right to object to the 
 distribution of the trust estate among 
 creditors. He is not such a party ag- 
 grieved as would entitle him to an appeal, 
 for the right to his commissions in such 
 a case is not denied. Salmon, Trustee, v. 
 Pierson, 8 Md. 297. 
 
 " A party aggrieved is one whose pe- 
 cuniary interest is directly affected by the 
 decree; one whose right of property may 
 be established or divested by the decree." 
 Wiggin, Admr., v. Swett 6 Mete. (Mass.) 
 197; Swackhamer v. Kline's Admr., 25 
 N. J. Eq. 503; Raleigh v. Rogers, 25. N. 
 J. Eq. 506. 
 
 "And it is not a mere remote and con- 
 tingent interest, or a wish dictated by 
 whim or policy, without any pecuniary 
 interest to be directly affected by the de- 
 cree, that will suffice." Barrows, J., in 
 Veayie Bank v. Young, 53 Me. 559; 
 Adams v. Woods et al., 8 Cal. 306. 
 
 " In legal acceptation, a party is ag- 
 grieved by such decree only when it oper- 
 ates on his property or bears upon his in- 
 terest directly." Deering v. Adams, 34 
 Me. 44. 
 
 " A defendant is not legally aggrieved 
 by his discharge from custody." Com. v. 
 Graves, 112 Mass. 282. 
 
 Where a person's interest in property 
 has ceased, he cannot be said to be ag- 
 grieved by any judgment rendered as to 
 
 that property. Kiefer w. Winkens, 3 
 Daly, 191. 
 
 For a party to be aggrieved, one of his 
 rights must liave been injuriously affect- 
 ed. £x parte Davidson, 18 C. B. 310. 
 
 Consequently a party is aggrieved by 
 entries in Stationers' Hall calculated to 
 prejudicially affect a literary copyright. 
 Ex parte Hutchins v. Ramer, 4 Q. B. JDiv. 
 90; Chappell V. Purday, 12 W. & W. 
 303. 
 
 Some person who has sustained special 
 and peculiar injury. Rex u. Essex, 5 
 Barn. & Cress. 432. 
 
 The provision in the New York Coda 
 authorizing any party aggrieved to ap- 
 peal embraces only such persons as are 
 technically parties to tlje action or their 
 representatives. Mackin v. Kanouse, 2 
 Abb. Pr. (N. Y.)390. 
 
 But in Morrow et al. v. Wood, 56 Ala. 
 I, it was held that a county superintend- 
 ent was a party aggrieved on the default 
 of the county treasurer, by reason Where- 
 of there was no money for public instruc- 
 tion. 
 
 1. The question before the court was 
 as to the construction of a section of the 
 Code giving any person aggrieved the 
 right to appeal. Dewey, J. ! "'Thelanguage 
 in reference to appeals from the Probate 
 Couijt [this case] is different from that 
 used in reference to justices of the peace, 
 police courts, and the Superior Court. In 
 all these cases it is provided that any 
 ' party ' aggrieved may appeal, while in 
 the Probate Court the right of appeal is 
 given to any ' person aggrieved.' This 
 language includes a wider range of per- 
 sons than those entitled to an appeal in 
 other courts. From the nature of the 
 case it must be so, as insults at law in the 
 other courts there are well-defined par- 
 ties. It is not so in cases in the Probate 
 Court. It includes any one who 'might 
 eventually be affected,' or whose ' proba- 
 ble future interest would be affected,' or, 
 in other words, ' did the decree of the 
 Probate Court conclude or in any way 
 affect the right of the appellant ?' " Far- 
 XS.X etal. V. Parker et al., 3 Allen (Mass.), 
 556. 
 
 A person aggrieved is one immediately 
 aggrieved. Rex v. Justices of Middle- 
 sex, 3 Barn. & Adol. 938. 
 
 One against whom a final judgment 
 has been rendered. Porter v. The United 
 States, 2 Paine (U. S. C. C), 315. 
 
 " And we are furthermore of the opin- 
 ion that the respondent was a person 
 aggrieved by such order. He was di- 
 
 450 
 
A GISTER—A GREEABLB—A GREEABL Y—A GREED. 
 
 AGISTER. — One who takes the cattle of another into his own 
 ground to be fed for a consideration to be paid by the owner.* 
 (See also ANIMALS.) 
 
 AGREEABLE. — In accordance with one's wishes.* 
 
 AGREEABLY.— In accordance with.* 
 
 AGREED.— The consent of both parties.* 
 
 rectly interested to the full extent of his 
 title." Dixon, C. J., in Belts v. Shotton, 
 27 Wis. 670. 
 
 ' ' But a party who loses no rights and is 
 unaffected by the decree, and of whom it 
 may be said it is res inter alios, is not a 
 person aggrieved." Lowrey v. Lowrey 
 ei al., 64 N. Car. no. 
 
 A person aggrieved is one injuriously 
 affected by a decree; but where a will is 
 duly probated and the whole estate of the 
 decedent is disposed of under it, the 
 heirs-at-law cannot be said to be ag- 
 grieved by any decision as to the settle- 
 ment of the estate. Lalar v. Nichols, 23 
 Mich. 310. 
 
 When trustees have interest as well as 
 duties, they are persons aggrieved who 
 may appeal. Ex parle Gaaler, 27 W. R. 
 156. 
 
 As also any third person whose title to 
 property is affected by bankruptcy adju- 
 dication. Ex parte Learoyd, 27 W. R. 
 227. 
 
 But a creditor under a bankruptcy pro- 
 ceeding who has omitted for several years 
 to prove his debt in the regular way is 
 not a person aggrieved by the refusal to 
 make an order the result of which if made 
 would be to increase the assets available 
 for the creditors. Ex parte Dillon, 11 
 Ch. Div. 56. 
 
 A person who applies property is a 
 person aggrieved. In re Tucker, 12 Ch. 
 Div. 388. 
 
 And when two bankruptcy petitions are 
 presented against the same debtor, and 
 an immediate adjudication is had against 
 him on the second petition, and on the 
 court finding out there has been collusion 
 between the debtor and second petitioner, 
 orders the conduct of the proceeding un- 
 der the adjudication up to the appoint- 
 ment of a trustee, the first petitioner is 
 not a. person aggrieved. Exparte'yis.son. 
 /«?-< White, 14 Ch. Div. 71. 
 
 1. Bass V. Pierce, 16 Barb. (N. Y.) 
 
 595- 
 
 2. Testatrix gave the residue of her 
 personal estate " in trust for such of my 
 nieces A and B as shall be living at my 
 death, my desire being that they shall 
 distribute such residue as they think will 
 be most agreeable to my wishes." Jessel, 
 M. R. : "What is that but to make them 
 
 451 
 
 judges of the mode of distribution, and 
 place the residue at their absolute dis- 
 posal ?" Stead V. Mellor, 5 Ch. Div. 225. 
 
 3. Agreeably to the usual mode of 
 process against offenders in such State. 
 "My opinion is, that it was the intention , 
 of Congress by these words, ' agreeably 
 to the usual mode of process against of- 
 fenders in such State,' to assimilate all 
 the proceedings for holding accused per- 
 sons to answer before a court of the 
 United States, to the proceedings had for 
 similar purposes by the laws of the 
 State where the proceedings should take 
 place." United States v. Rundlett, 2 
 Curtis C. C. 41 ; United States v. Hor- 
 ton's Sureties, Dill. U. S. C. C. 97. 
 
 4. " ' Agreed ' ex vi termini means that 
 it is the agreement of both parties, each' 
 and both consenting to it." Aikin v. 
 Albany, Vermont & Canada R. Co., 26 
 Barb. (N. Y.) 298. 
 
 "The term 'agreed' is a technical 
 word, and is synonymous with ' con- 
 tracted.'" McKisick v. McKisick, Meigs 
 (Tenn.), 433. 
 
 In Plea. — The use of the word ' 'agreed" 
 in a declaration in assumpsit does not 
 make the count one in debt. The count 
 may notwithstanding show that defend- 
 ant "undertook and promised." North 
 V. Kuger et al., 72 111. 172. 
 
 The word "agreed" is the word of 
 both in account. Elderton v. Emraens, 
 6 3. B. 175. 
 
 And when it is substituted for "prom- 
 ised " in a declaration it is equivalent to 
 promised. Corbett v. Packipgton, 6 
 Barn. & C. 273. 
 
 Dismissed Agreed. — The words " dis- 
 missed agreed" entered as the judgment 
 of a court do not of themselves import 
 an agreement to terminate the controver- 
 sy, nor imply an intention to merge the 
 cause of action in the judgment. Halde- 
 man et al, v. U. S.. 91 U. S. 584. 
 
 Freight as Agreed.— Trover by freight- 
 er against ship-owner to recover the 
 goods, the charter-party giving a lien 
 for dead freight, but the master to sign 
 bills of lading, which bound the goods 
 for "freight as agreed," the freighter 
 having when he demanded the goods 
 been prepared to pay freight of carriage 
 and the ship-owner having refused to 
 
AGREES— AGRICULTURE— AID. ' 
 
 AGREES. — ^The concurrence of two parties.^ 
 
 AGRICULTUEE. — The cultivation of the ground for the purpose 
 of procuring vegetables and fruits for the use of man and beast ; 
 equivalent to husbandry, or the business of a farmer.'-* 
 
 AID. — Help or assistance. In criminal law, assistance given 
 lo the commission of a crime.^ 
 
 'd,eUver the goods exrept on payment of merchant, or a lawyer, who living within 
 
 .the dead freight. Held, that the action 
 would lie; freight for carriage alone was 
 ■due. Kerford v. Mendel, 7 Hurl. N: 932. 
 
 It is Agreed. — If, in a written contract 
 ;signed by two parties, it be said that it is 
 " agreed " the one shall furnish the other 
 ■with certain property at a specified price, 
 this imports a promise to the latter to 
 accept and pay; for " it is agreed " is to be 
 <ieemed to be words of both parties. 
 Barton v. McLean. 5 Hill (N. Y.), 256. 
 
 It is Mutually Agreed — Where a 
 printed receipt containing the words "it is 
 mutually agreed" was given by a common 
 carrier to a shipper on the taking of 
 goods to be sent to a certain place, it was 
 held that a loss of the goods beyond the 
 company's line which gave the receipt 
 must be paid for, as the shipper did not 
 know that the company's line only ex- 
 tended to a certain point, there could be 
 no mutual agreement in such a case. 
 Mesher & Co. v. The Southern Express 
 Co., 38 Ga. 37. 
 
 1. " Wells accepted a free ticket from 
 the railroad, on which was indorsed, 
 ' the person accepting this free ticket 
 assumes all risks,' etc., ' and expressly 
 agrees,' etc., is a contract on the part of 
 the passenger with the company; it seems 
 necessary to say that the word ' agreed ' 
 means the concurrence of two parties, 
 and that the act of acceptance binds the 
 acceptor as fully as his hand and seal 
 would." Gould, J., in Wells v. New York 
 Central R. Co., 24 N. Y. 183. 
 
 2. Webster's Dictionary. 
 
 Engaged in Agriculture. — The Tenne- 
 isee statutes exempt in the hands of the 
 head of a family "engaged in agricul- 
 ture" certain property. One who owned 
 within the town of Gallatin a lot of 
 ground of one acre, and was engaged in 
 the business of butchering, working as a 
 day-laborer, and cultivating his garden 
 for the support of his family, claimed the 
 exemption. Held, not to be an agricul- 
 turist in the sense of the exemption laws, 
 the court saying: "The word 'agriculture,' 
 as used in these exemption laws, has its 
 peculiar legal sense, and relates to the 
 vocation. It is true that two or more 
 vocations may be combined, but we are 
 not accustomed to think of an artisan, a 
 
 a crowded town or city, and following his 
 avocation happens to cultivate a little 
 patch of earth in vegetables for his table, 
 as an agriculturist, even in its most 
 general sense. If he produced them on 
 any extended scale for market, or "for 
 man and beast " in the sense of husband- 
 ry, then he might be regarded as an agri- 
 culturist in the sense of the law. Simons 
 V. Lovell, 7 Heisk. (Tenn.) 510. 
 
 Agricultural Employment.— Work in a 
 grist-mill, at eight shillings per day, to be 
 paid weekly, is not monthly labor, nor 
 " agricultural employment." 62 Me. 526. 
 
 3. Stat. West, i, c. 14. 
 
 Aid, in this sense, according to Lord 
 Coke, comprehends all persons coun- 
 selling, abetting, plotting, assenting, 
 consenting, and encouraging to do an 
 act, and who are not present when the 
 act is done. Burrill's Law Diet. : ' Sub 
 Voce. ' 
 
 The legislature of Nebraska, by sever- 
 al acts, authorized any county or city in 
 the State to issue bonds to aid in the 
 construction of any railroad or work of 
 internal improvement. Such bonds 
 were issued to pay for work constructed 
 by the county itself. On an application 
 for an injunction to restrain the collec- 
 tion of certain taxes levied for the pay- 
 ment of the interest due on said bonds, 
 on the ground that they were illegal and 
 void, the bonds were declared valid 
 and the injunction refused; the court 
 saying; "It is evident that the word 
 'aid,' as used in this connection by the 
 legislature, has a much broader meaning 
 than that contended for by the plaintiff's 
 counsel, and is not necessarily restricted 
 to works of internal improvement in 
 which the county has no interest. The 
 word ' aid,'' as used, evidently means 
 that the county may contribute toward 
 the cost of the improvement by issuing 
 its bonds, a portion of the fund neces- 
 sary to make the improvement to be 
 contributed in some other manner, as by 
 grant from the State, donations, by two 
 counties bordering on the river uniting 
 in the enterprise, etc., but does not nec- 
 essarily repel the conclusion that the 
 county liiay construct the desired im- 
 provement for the benefit of the public." 
 
 452 
 
AIDERS AND ABETTORS. 
 
 AIDERS AND ABETTORS. — These are persons who either ac- 
 tually or constructively are present at the commission of an of- 
 fence, aiding and abetting or counselling and procuring the same 
 to be done; they are principals in the second degree. The aider 
 and abettor of high treason is a principal in the first degree, 
 propter odium delicti ;^ the aider and abettor of a misdemeanor is 
 
 N. P. R. V. Commissioners of Colfax 
 County, 4 Neb. 450; s. c, 3 Central 
 Law Journal, 287. 
 
 Aid and Abet— Aid or Comfort — Aid or 
 Assistance. — For the use of these words , 
 in criminal law, see Accessory; Aider 
 and Abettor. Cf. Raiford v. State, 59 
 Ala. 106; Com.'z/. Knapp, 9 Pick. 496; 
 s. c, 20 Am. Dec. 491; Com. v. Adams, 
 127 Mass. 15. 
 
 The mere mental approval by a by- 
 stander of a murder committed in his 
 presence does not make him an accom- 
 plice in the murder; and where the judge 
 at trial charged as follows, — " That it is 
 not necessary for the State to prove that 
 the defendant by his own hand shot and 
 killed the deceased; for if he was present, 
 aiding or abetting, or counselling, or ad- 
 vising or inciting, or encouraging, or 
 approving of some other persons in 
 shooting and killing the deceased, he is 
 guilty of murder in the first degree," — it 
 vfas Ae/d, error; the court saying; "If 
 an explanation of the term ' aiding and 
 abetting,' as used in our statute, or in 
 the common-law definition of an accom- 
 plice, should be deemed necessary, it is 
 proper that the explanatory terms used 
 should convey a correct idea of the 
 meaning of the offence. The court prob- 
 ably did not mean to hold that the mere 
 mental approval by a bystander of a 
 murder committed in his presence would 
 make such bystander a principal in the 
 murder, yet the use of the disjunctive' or' 
 between the various terms employed to 
 describe the crime of an accomplice, 
 necessarily leads to this interpretation 
 of the instruction. The words ' or ap- 
 proving of ' have no place in legal phra- 
 seology to explain the meaning of the 
 words to 'aid and abet.' The fact itself 
 is incapable of proof. Mental opera- 
 tions, not accompanied with any action 
 or language, are beyond the reach of 
 testimony. There was no necessity for 
 the introduction of these words in the 
 instruction, and they may not have mis- 
 led the jury; but when a party is on 
 trial for his life, he is entitled to a cor- 
 rect exposition of the law touching his 
 case." State v. Cox, 65 Mo. 29. 
 
 A person who stands by when an at- 
 tempt is made by others to commit a 
 
 rape, but who does no act to " aid. assist 
 or abet" its commission, is not guilty of 
 an attempt to commit a rape. People v. 
 Woodward, 45 Cal. 293. 
 
 Information conveyed either verbally 
 or by a writing to a prisoner that he has 
 a friend, and can be released from con- 
 finement is not a violation of a statute 
 forbidding the conveying to any person 
 lawfully imprisoned any instrument, 
 arms, or other thing calculated to " aid " 
 his escape. The design of the act was 
 to prohibit the conveying to prisoners in 
 confinement any substantial, tangible 
 thing which might be used or handled 
 by them in facilitating or effecting their 
 escape; but conveying information to a 
 prisoner by which he is led to expect 
 aid, or that he could be released, or con- 
 veying to him any substance which 
 could in itself be in nowise useful or of 
 advantage to him in making his escape, 
 does not come within the prohibition. 
 Hughes I/. State, I English (Ark.), 131. 
 
 Simply advising a debtor to run away, 
 though the advice be given to delay, hin- 
 der, or defraud his creditors, is not equiv- 
 alent to " aiding and assisting," and will 
 not sustain an action under the statute 
 against the fraudulent removing of debt- 
 ors. " Most persons are willing to give 
 advice; some do it ofiiciously; but if 
 called on to give aid or assistance, the 
 subject is looked at in a difierenf point 
 of view. Advice costs nothing; it is but 
 words. Aid, or assistance, is the doing 
 of some act whereby the party is en- 
 abled, or it is made easier for him, to do 
 the principal act, or effect some primary 
 purpose." Pearson, J. Wiley v. Mc- 
 Ree, 2 Jones Law (N. C), 349. 
 
 Aid or Comfort. — See Adhering. The 
 words "aid or comfort" used in the act 
 March 12, 1863 (12 Stat. 820), allowing 
 any person claiming to be the owner of 
 property captured by the United States 
 during the Rebellion to bring suit there- 
 for in the Court of Claims, on proof that 
 "he has never given aid or comfort to 
 the present rebellion," have the same 
 meaning as they have in the clause of 
 the Constitution defining treason (Art. 
 3, § 3). Young V. U. S., 7 Otto, 39, 
 62. 
 
 1. 3 Inst. 138. 
 
 I C. of L.— -30 
 
 453 
 
AIR-TIGHT— ALARM— ALCALDE— ALEATORY— ALIBI. 
 
 also a principal in the first degree, but for a very different reason, 
 namely, the maxim de minimis non curat lex. Consequently, 
 aiders and abettors that are principals in the second degree are 
 only found in the case of felonies, whether at common law or 
 under any statute. The aider and abettor must participate in the 
 felony, in the sense of acting in concert with those committing 
 it ; for although he be present, yet if he do not participate, but 
 remain merely passive, he will not be an abettor. '^ Moreover, the 
 participation must be with a felonious intent, and not in igno- 
 rance of the nature of the act.** (See ACCESSORY.) 
 
 AIR-TIGHT. — That which excludes the air. A chamber is said 
 to be air-tight when it is so closed that the air cannot penetrate 
 into it.^ 
 
 ALARM. — This word as used in reference to the methods em- 
 ployed to summon firemen to a fire denotes the actual means 
 used, without regard to the effect produced on the firemen.* 
 
 ALCALDE. — In Spanish law, a magistrate or judge. ^ A judicial 
 ofificer in Spain, and in those countries which have received the 
 body of their laws from those of Spain. His powers and duties 
 are similar to those of a justice of the peace.** 
 
 ALEATORY.— Dependent on some uncertain event.'' 
 
 ALIBI. — A prisoner or accused person is said to set up an alibi 
 when he alleges that at the time when the offence with which he 
 is charged was committed he was " elsewhere," that is, in a differ- 
 ent place from that in which it was committed. If proved, it is of 
 course a complete answer to the charge.** 
 
 1. I Hale, 439. alarm" of fire, he may be convicted of 
 
 2. I Hale, 446. "giving or causing to be given a false 
 Aid and Abet. — These words, in legal alarm by the fire-alarm telegraph, know- 
 phrase, are pretty much the synonyms of ing the same to be such," although in 
 each other. They comprehend all as- consequence of the irregular manner ia 
 sistance rendered by acts, words of en- which the bells were rung the firemen 
 couragement or support, or presence, ac- were not deceived and induced to turn 
 tual or constructive, to render assist., out with their engines. Koppersmith v. 
 ance, should it become necessary. No State, 51 Ala. 6. 
 
 particular acts are necessary. Timber. 6. Burrill's Law Diet.: "Sub Voce," 
 lake z/. Brewer, 59 Ala. 108. 6. Bouvier's Law Diet. : "Sub Voce." 
 
 3. In a suit for the infringement of a See U. S. v. Castillero, 2 Black (U. S.), 
 patent the court held: "The term 'air- 17, 194; Strother v. Lucas, 12 Peters, 
 tight,' as applied to the floor of an ice- 410, 442. 
 
 resevoir, means substantially ' water- 7. Aleatory Contracts. — " It is of the 
 
 tight,' or such a construction of the floor essence of aleatory contracts that there 
 
 that the water will not run upon the arti- should be risk on one side or both, and 
 
 cles stored below, nor the air escape to that all risks appertaining to the contract 
 
 melt the ice above. A patent for such a and not excepted were assumed by the 
 
 floor cannot be evaded by constructing a parties." Moore v. Johnson, 8 La. Ann. 
 
 leaky floor. A person cannot use a pat- 488. 
 
 ented device by constructing it in an im- 8. Sweet's Law Diet. See Provo v^ 
 
 perfect manner. Chicago Fruit-house State, 55 Ala. 222. 
 
 Co. V. Busch, 2 Bissell (U. S.), 472. The evidence of an alibi cannot avail 
 
 4. Giving a False Alarm. — Where one unless it preponderates. State v. Reed, 
 knowingly meddled with the wires, or 62 Iowa, 40; State v. Hamilton, 57 Iowa, 
 other parts of the telegraph apparatus, 598; State v. Northrup, 48 Iowa, 583. 
 with the intention to cause a "false But a bare preponderance is sufiicient. 
 
 454 
 
Definition. 
 
 ALIBI. 
 
 Definition, 
 
 An alibi is as much a traverse of the crime charged as any 
 other defence, and proof tending to estabhsh it, though not clear, 
 may, with other facts of the case, raise a reasonable doubt of the 
 guilt of the accused. When the evidence is so imperfect as not 
 to satisfy the jury they will not find the fact. Where the prosecu- 
 tion rests upon positive and undoubted proof of the prisoner's 
 guilt, it should not be overcome by less than full, clear, and satis- 
 factory evidence of the alleged «//i5z. But the evidence tending 
 to estabhsh an alibi, though not of itself sufficient to work an ac- 
 quittal, shall not be excluded from the case, for the burden of 
 proof never shifts, but rests upon the prosecution throughout, 
 upon all the evidence given in the cause taken together, to con- 
 vince the jury, beyond a reasonable doubt, of the prisoner's guilt. ^ 
 
 State t/. Hardin, 46 Iowa, 623; s.c, 26 Am. The accused is not bound to prove are 
 
 Rep. 174; Turner z». Commonwealth, 85 oA/'j beyond a reasonable doubt. Landis- 
 
 Pa. St. 54; s. c, 27 Am. Rep. 6S3. v. State, 70 Ga. 651; s. c, 48 Am. Rep. 
 
 Where an alibi is relied upon as a de- 588; State v. Reed, 62 Iowa, 40; State v. 
 
 fence in a criminal prosecution, the bur- Henry, 48 Iowa, 403; State v. Hardin, 
 
 den rests upon the defendant to establish 46 Iowa, 623; State v. Watson, 7 S. Car, 
 
 it to the satisfaction of the jury. State 63; Binns v. State, 46 Ind. 311; Howard 
 
 V. Jennings, 81 Mo. 185; Garrity ii. Peo- v. Slate, 50 Ind. Igo; Adams v. State, 42 
 
 p|e, 107 111. 162; Creed v. People, 81 111. Ind. 373; Chappel v. State, 7 Coldw, 
 
 565; State V. Henrick, 62 Iowa, 414; (Tenn.) 92; Davis v. State, 5 Baxt. 
 
 State V. Reed, 62 Iowa, 40; State v. (Tenn.) 612; State v, Josey, 64 N. Car, 
 
 Kremjen, 57 Iowa, 588; State v. Hamil- 56; People v. Pearsall, 50 Mich. 233;. 
 
 ton, 57 Iowa, 598; State v. Vincent, 24 Stuart v. People, 42 Mich. 255; Sullivan 
 
 Iowa. 570; State v. Ostrander, 18 Iowa, v. People, 31 Midi. i. 
 435; State V. Waterman, I Nev. 453; The burden of proving an alibi is or> 
 
 French v. State, 12 Ind. 670; Ware v. defendant, but he is not bound to prove 
 
 State, 67 Ga. 349; Com. v. Webster, 5 it beyond a reasonable doubt; and if,. 
 
 Cush (Mass.) 324; State v. Davidson, 30 upon the whole case, the testimony raises- 
 
 Vt. 377; s. c, 73 Am. Dec. 312; Fife v. a reasonable doubt that defendant was 
 
 Commonwealth. 29 Pa. St. 429. Compare present when the crime was committed, 
 
 Humphries v. State, 18 Tex. App. 302, he should be acquitted. State v. Fry, 25. 
 
 and cases cited /o.r^ N. W. Repr. (Iowa) 738. See State v. 
 
 Where the evidence tends to prove the Rivers, 27 N. W. Repr. (Iowa) 781. 
 commission by the defendant of the A defendant, to establish an alibi, 
 
 crime charged in the indictment at a par- must not only show he was present at 
 
 ticular time and place, and the defendant some other place about the time of the 
 
 offers evidence tending to show that at alleged crime, but also that he was at 
 
 such time he was at another place, it is such other place such a length of time 
 
 error for the court to charge the jury that that it was impossible for him to have 
 
 testimony tending to show such alibi was been at the place wherfe the crime was 
 
 not to be considered, unless it estab- committed, either before or after the- 
 
 lished the fact by a preponderance of time he was at such other place. Klein 
 
 evidence. The burden of proof was not v. People, 113 111. 596. 
 changed when the defendant undertook Evidence to prove an alibi is not open 
 
 to prove an alibi; and if by reason of the to the objection of being cumulative, 
 
 evidence in relation to such alibi the Smythe v. State, 17 Tex. App. 244. 
 jury should entertain reasonable doubt All proof, though inconclusive, should! 
 
 as to the defendaint's guilt, he should be go to the jury. People v. Fong Ah Sing, 
 
 acquitted, although the jury might not be 64 Cal. 253; Landis v. State, 70 Ga. 65 ir 
 
 able to find that the «/zi5z was fully proved, b. c, 48 Am. Rep. 588. 
 Walters v. State, 39 Ohio St. 215; o. v,., 4 The detection of perjury in an attempt 
 
 Am. Cr. R. 33. , to prove an alibi raises presumption of 
 
 To establish an alibi it is not necessary the prisoner's guilt. Porter v. State, 55. 
 
 that the jury should be fully satisfied of Ala. 95. Compare Turner v. Comnlen- 
 
 its truth. But the evidence of an alibi wealth, 86 Pa. St. 54; s. c, 27 Am. Rep. 
 
 cannot avail unless it preponderates. 683. 
 
 State V. Reed, 62 Iowa, 40; State v. Ham- 1. Watson v. Commonwealth, 95 Pa^ 
 
 ilton, 57 Iowa, 598. St. 418. 
 
 455 
 
Proof. 
 
 ALIBI— ALIEN. 
 
 Definition. 
 
 Proving an alibi does not impose the burden of showing that 
 the accused was absent at the very time at which the evidence for 
 the prosecution tends to show the offence was committed, nor 
 need it absolutely preclude the possibility of his being at both 
 places.^ The range of the evidence in respect to time and place 
 must be such as reasonably to exclude the possibility of such 
 presence.** 
 
 An alibi is a fact shown in rebuttal of the State's evidence ; 
 and it does not, therefore, demand a specific instruction from the 
 court.* 
 
 ALIEN. (See also CITIZENSHIP; ESCHEAT; FOREIGN CORPO- 
 RATION ; Naturalization.) 
 
 I. Definition. 2. Alien Friend. 3. Alien Enemy. 
 
 1. Definition. — An alien is one who is born out of the jurisdiction 
 
 1. Stuart V. People, 42 Mich. 255. See 
 State V. Jaynes, 78 N. Car. 504; Kauf- 
 man V. State, 49 Ind. 248; Adams v. 
 State, 42 Ind. 373; While v. State, 31 
 Ind. 262; Galloway v. State, 29 Ind. 442. 
 Compare Com. v. Castley, 118 Mass. I. 
 
 But where the exact time at which the 
 crime was committed is not known, but it 
 is shown that it was committed, the alibi 
 inust cover the whole of such time. 
 West V. State, 48 Ind. 483. See Brice- 
 land V. Commonwealth, 74 Pa. St. 463; 
 Johnson w. State, 59 Ga. 142. 
 
 Where the trial judge charged " this 
 defence is liable to great abuse, grow- 
 ing out of the ease with which it may be 
 fabricated and the difficulty with which 
 such fabrication can be detected," held, 
 that this was erroneous; that the law does 
 not attach suspicion to evidence tending 
 to prove an alibi any more than it does 
 to evidence tending to prove any other 
 fact. Albin v. State. 63 Ind. 598; s. c, 3 
 Am. Cr. R. 295; Line j/. State, 51 Ind. 
 172; s. c, I Am. Cr. R. 615. See Spen- 
 ser V. State, 50 Ala. 124; Williams v. 
 State, 47 Ala. 659; Crisson v. State, 51 
 Ga. 597; Walker v. State, 37 Tex. 366. 
 Compare People v. Lamed, 7 N. Y. 448. 
 
 3. Johnson v. State, 59 Ga. 142; Wade 
 V. State, 65 Ga. 756. 
 
 A respondent swearing to an alibi was 
 cross-examined as to what he saw of an 
 alleged procession in the town where he 
 claimed to have been. Held, proper to 
 show by others what the facts were as to 
 the procession as bearing on the truth of 
 Ihis statements. People v. Gibson, 58 
 Mich. 368. 
 
 8. State V. Reed, 62 Iowa, 40. 
 
 On a trial for murder, where an alibi is 
 set up as a defence, an instruction was not 
 improperly refused that " if you [the jury] 
 
 are said to have been found near the de- 
 ceased at the time of the arrival of the 
 officers were the property of tha deceased, 
 you will give the defendant the benefit of 
 every rational doubt growing out of such 
 circumstances." Such instruction was 
 misleading, and the jury could not under- 
 stand ^ therefrom whether the rational 
 doubt must be of defendant's guilt oi- of 
 some other matter of an uncertain nature. 
 People V. Lee Gam, 11 Pac. Repr. (Cal.) 
 183. 
 
 An instruction as follows — " Now, in 
 determining that fact, gentlemen, I in- 
 struct you that evidence to establish an 
 alibi, like any'other evidence, may be open 
 to special observation. Persons may, per- 
 haps, fabricate with greater hopes of suc- 
 cess, or less fear of punishment, than 
 most other kinds of evidence; and honest 
 witnesses often mistake dates and periods 
 of time and identity of people seen, and 
 other things about which they testify" 
 — held, not erroneous. People v, Wong 
 Ah Foo, 10 Pac. Repr. (Cal.) 275; Peo- 
 ple V. Lee Gam, 11 Pac. Repr. (Cal.) 183. 
 
 It is error to charge the jury that an 
 unsuccessful attempt to establish an alibi 
 is a circumstance of great weight against 
 the prisoner. People v. Malaspina, 57 
 Cal. 628. See Toler v. State, 16 Ohio St. 
 583. Line v. State, 51 Ind. 172; s. c, i 
 Am. Cr. Rep. 615. 
 
 Where the accused in a criminal action 
 has relied for his defence upon an alibi, 
 and the court in its charge to the jury has 
 omitted any special instruction as to the 
 alibi, but has given them a general 
 direction to consider all the facts in the 
 case, and give defendant the benefit oi a 
 doubt, the appellate court will not con- 
 sider an exception, by defendant, that 
 the court should have instructed the jury 
 
 believe that the knife and pistol which , that he ought to establish the alibi by a 
 
 456 
 
Definition. 
 
 ALIEN. 
 
 Chinese. 
 
 of the United States, subject to some foreign government, and 
 who has never been naturalized under the constitution or laws of 
 the United States, or any of them. There must be a union of 
 birth abroad and subjection to some other power, as one may be 
 born abroad and still be a citizen of the United States.^ Aliens 
 
 preponderance of evidence, as the omis- 
 sion to so instruct does not prejudice de- 
 fendant. State V. Sutton, 30 N. West. 
 Repr. (Iowa) 367. 
 
 1. I Bouvier's Inst. § 163; 2 Kent's 
 Com. 40; Dawson v. Godfrey, 4 Crancli. 
 (U. S.) 321; Jones v. McMasters, 20 
 How. (U. S.) 8; Ainslie v. Martin, 9 
 Mass. 456. 
 
 All ctiildren born out of the limits and 
 jurisdiction of the U. S. whose fathers 
 are citizens thereof are citizens of the 
 U. S. U. S. Rev. Stat. § 1993. See 
 Ludlam v. Ludlam, 26 N. Y. 356; Davis 
 V. Hall, I Nott & M. (S. Car.) 292; Crane 
 V. Ruder, 25 Mich. 303; Campbell v. 
 Wallace, 12 N. H. 362; s. c, 37 Am. 
 Dec. 219. 
 
 An alien female who intermarries with 
 a citizen thereby becomes a citizen, capa- 
 ble of taking and holding lands by pur- 
 chase or descent. Luhrs v. Eimer, 80 
 N. Y. 171. 
 
 An alien woman whose husband be- 
 came a naturalized citizen of the U. S. 
 thereby herself became a citizen, 
 although she may have been living at a 
 distance from her husband for years, and 
 may never have come into the U. S. until 
 after his death. Headman v. Rose, 63 
 Ga. 458. 
 
 A person born in Canada of parents 
 of African blood who were born in Vir- 
 ginia, and held there as slaves until their 
 emigration to Canada, held not entitled 
 to vote as a citizen of the U. S. without 
 being naturalized. Hedgraan v. Board, 
 etc., 26 Mich. 51. See Alsberry v. Haw- 
 kins, 9 Dana (Ky.), 177; s. c, 33 Am. 
 Dec. 546; Manchester v. Boston, 16 
 Mass. 230. 
 
 Persons born in the U. S. who have, 
 according to the laws of a foreign coun- 
 try, become subjects of such country 
 must be regarded as aliens. Such a per- 
 son cannot become a citizen of the U. S. 
 again except in the manner provided for 
 the naturalization of aliens. Expatria- 
 tion, 14 Op. Atty.-Genl. 295. See Inglis 
 V. Sailors' Snug Harbor, 3 Pet. (U. S.) 
 123. See Alsberry v. Hawkins, 9 Dana 
 (Ky.), 177; s. c. , 33 Am. Dec. 546. 
 
 Nor will his children be citizens. 
 Browne v. Dexter, 4 Pac. Repr. (Cal.) 913. 
 
 The defendant's affidavit, together with 
 an official passport certifying the natu- 
 ralization of the defendant as a British 
 
 citizen, held sufficient prima facie evi' 
 dence that the requirements of the Eng- 
 lish statutes had been complied with. 
 Maloy V. Duden, 25 Fed. Repr. 673. 
 
 Aliens domiciled in the U. S. owe a 
 local and temporary allegiance to the 
 government. They are bound to obey 
 all the laws of the country not imme- 
 diately relating to citizenship during their 
 residence in it, and are equally amenable 
 with citizens for any infraction of those 
 laws. Carlisle v. U. S., 16 Wall. (U. S.) 
 147. 
 
 Chinese. — The refusal to allow a Chi- 
 nese passenger to land is a restraint of 
 his liberty, within the meaning of the- 
 habeas corpus act, and it is the duty of the 
 court, justice, or judge to whom the 
 application for a writ of habeas corpus is- 
 made to forthwith award the writ, unless 
 it appears from the petition itself that 
 the party is not entitled thereto. Rev. 
 St. § 755; In re Jung Ah Lung, 25 Fed. 
 Repr. 141; In re Jung Ah Hon, 25 Fed. 
 Repr. 141. 
 
 The court. In investigating the legality 
 of the detention of a Chinese passenger 
 on board a vessel, in such case is not 
 bound or controlled by the decision of 
 the collector of the port, or his deputy, 
 as to the right of such passenger to 
 land. Rev. St. § 755; In re Jung Ah 
 Lung, 25 Fed. Repr. 141 ; In re Jung Ah 
 Hon, 25 Fed. Repr. 141. 
 
 Where a Chinese person is detained on 
 board of a ship and refused the right to 
 land, whether by the authority of the 
 master in pursiiance of the provisions of 
 the Chinese restriction act, or by the 
 refusal of the collector to grant him per- 
 mission to land, he is restrained of his 
 4iberty under or by color of the authority 
 of the U. S., and he is entitled as of 
 common right to sue out a writ of habeas 
 corpus that the legality of his detention 
 and restraint may be passed upon by the 
 court. In re Chow Goo Pool, 25 Feti. 
 Repr. 77. ' 
 
 When his body is produced in court in 
 obedience to the writ, the control of hi» 
 person remains with the court, and he 
 may be committed to the custody of the 
 marshal, or be held to bail to await the 
 decision of the court; and if on investi- 
 gation the court should be of opinion that 
 he had no right to land, it is its duty to- 
 remand him to the custody from whictt 
 
 457 
 
Alien Friend, 
 
 ALIEN. 
 
 At Common Law. 
 
 are divisible into alien friends (alien amys) and alien enemies, 
 according as the state of which they are subjects is or is not at 
 war with this country. 
 
 2 Alien Friend. — An alien may take an estate in lands by 
 purchase^ at common law until office found, and by statute 
 
 he was taken, if the ship be in port and 
 about to return to the country from which 
 he came; but the court has no right, nor 
 color of right, to detain the ship. In re 
 Chow Goo Pooi, 25 Fed. Repr. 77. 
 
 A Chinaman thus brought before the 
 court has no right to a trial by jury in 
 the investigation before the "justice, 
 judge, or commissioner" to ascertain and 
 find out whether he is unlawfully within 
 the U. S. In re Chow Goo Pooi, 25 Fed. 
 Repr. 77. 
 
 Where the "justice, judge, or commis- 
 sioner" finds that the petitioner is a 
 Chinese laborer, prohibited by law from 
 landing or from being or remaining in 
 the U. S., and, if the ship were in port 
 and about to return to China, would 
 remand him to the ship to be carried to 
 the country from whence he came, such 
 a finding amounts to a finding in effect 
 that he is unlawfully in the U. S., and the 
 court should order him to be remanded 
 by the marshal to the custody from which 
 he was taken, and when the marshal 
 returns that the ship has sailed, a supple- 
 mental order may be passed committing 
 him to the custody of the marshal to be 
 held for a reasonable time to await the 
 directipn of the President. In re Chow 
 Goo Pooi, 25 Fed. Repr. 77. 
 
 The order of the President may be 
 either general or special. It may be 
 retrospective and prospective; and, inas- 
 much as the lajv imposes on him the duty 
 of causing the person to be removed to 
 the country whence he came after he shall 
 have been found to be unlawfully here 
 by a "justice, judge, or commissioner," 
 but gives him no power to revise that 
 judgment, and apparently confers on him 
 no discretion in the matter, he may by 
 a general order, directed to the marshal 
 '(or perhaps to the collector), direct that 
 .all persons who shall thus have been 
 iound to be unlawfully here shall be 
 removed, and he may instruct that officer 
 to procure them tickets " and effectuate 
 their removal; and if there be any diffi- 
 culty from the want of appropriation or 
 tneans at his command in fulfilling that 
 duty imposed on him by law, it is for 
 Congress to remove it. In re Chow Goo 
 Pooi, 25 Fed. Repr. 77. 
 
 Chinese Children. — A person born with- 
 in the U. S. of Chinese parents residing 
 therein, and not engaged in any diplo- 
 
 matic or official capacity under the em- 
 peror of China, is a citizen of the U. S. 
 In re Look Tin Sing, 21 Fed^ Repr. 905. 
 
 1. I Washburne Real Prop. (4th Ed.) 74, 
 n. 7; Orr ii. Hodgson, 4 Whe^t. (U. S.) 
 453; Gouverneur &. Robertson, 11 Wheat. 
 (U.S.) 332; Jones v. McMasters, 20 How. 
 (U. S.) 8; Jackson v. Lunn, 3 Johns. Cas. 
 (N. Y.) log; Bradstreet v. Supervisors, 
 13 Wend. (N. Y.) 546; Wadsworth v. 
 Wadsworth, 12 N. Y. 376; Munro v. 
 Merchant, i8 N'. Y. g; People v. Snyder, 
 41 N. Y. 3g7; Hall v. Hall, 81 N.Y. 130; 
 Fox V. Southack, 12 Mass. 143; Scanlon 
 V. Wright, 13 Pick. (Mass.) 523; s. c. 25 
 Am. Dec. 344; Foss v. Crisp, 20 Pick. 
 (Mass.) 121; Ferguson v. Neville, 61 Cal. 
 356; Estate of Billings, 65 Cal. 5g3; Hal- 
 stead V. Commissioners, 56 Ind. 363; 
 Dudley v. Grayson, 6 T. B. Mon. (Ky.) 
 25g; Trustees v. Gray, i Litt. (Ky.) I4g; 
 McCreery v. AUender, 4 Har. & M. 
 (Md.) 4og; Marshall v. Conrad, 5 Call. 
 (Va.) 364; Territory v. Lee, 2 Montana, 
 124. 
 
 Common Law. — At common law an 
 alien could take land by devise, or grant 
 and hold it against the whole world ex- 
 cept the sovereign, and even against him 
 until inquest of office found. The state 
 alone has power to enforce this proceed- 
 ing, and it cannot proceed after naturali- 
 zation. Marx V. McGlynn, 88 N. Y. 
 357; see Maynard v. Maynard, 36 Hun 
 (N. Y.), 227; Crane ii.^Reeder, 21 Mich. 
 24; s. c, 4 Am. Rep. 430; Harley «<. State, 
 40 Ala. 68g; Halstead v. Commissioners, 
 56 Ind. 363; Ferguson v. Neville, 61 Cal. 
 356; Emmett w. Emmett. 14 Lea(Tenn.), 
 36g; Territory v. Lee, 2 Montana, ' 124; 
 Jones V. McMasters, 20 How. (U. S.) 21; 
 Hammekin u. Clayton, 2 Woods (U. S.), 
 336;.Osterman v. Baldwin, 6 Wall. (U.S.) 
 121; Phillips V. Moore, 100 U. S. 208; I 
 Washburne Real Prop. (4th Ed.) 74. 
 
 Until office found an alien may sell 
 and convey or devise lands, and pass a 
 good title to the same. i Washburne 
 Real Prop. (4th Ed.) 74. 
 
 Upon the death of an alien holder of 
 lands his title by common law at once vests 
 in the State without office found. Crane v. 
 Reeder, 21 Mich. 24; s, c, 4 Am. Rep. 
 430; Goodrich v. Russell, 42 N. Y. 177. 
 
 By Statute in almost if not all the 
 States aliens are empowered to hold 
 lands, or to take by devise, bequest, or 
 
 458 
 
Alien rriend. 
 
 ALIEN. 
 
 Bights under Statutes, 
 
 By Statute — Continued. 
 descent (see special statutes of the differ- 
 ent States). I Washburne Real Prop. 
 (4lh Ed.) 74, n. 7; Chase's Blackstone, ng, 
 n. 2; Estate of Billings, 4 Pac. Repr. 
 (Cal.) 639; Farrell v. Enright, 12 Cal. 
 450 ; McConviUe v. Howell, 17 Fed. 
 Repr. (Colo.) 104; Starks v. Tray nor, 11 
 Humph. (Tenn.) 292; Eustache v. Roda- 
 quest, II Bush (Ky.),42; Duke v. Milne, 
 17 La. 312; s. c, 36 Am. Dec. 613; State 
 V. Killian, 51 Mo. 80; Rubeck v. Gard- 
 ne., 7 Watts (Pa), 455; Montgomery v. 
 Dorion, 7 N. H. 475. 
 
 Under the provision of the act of 1845 
 to enable resident aliens to hold and con- 
 vey real estate, which provides that a resi- 
 dent alien to whom any real estate had 
 been or should thereafter be devised 
 might, on filing the deposition of inten- 
 tion to become a citizen, etc., prescribed 
 by the Revised Statute^, hold the real 
 estate the same as if he was a citizen at 
 the time of the devise, a resident alien 
 devisee of a citizen takes, upon accept- 
 ance of the devise, a conditiopal title, 
 absolute as against the heirs of the tes- 
 tator, but defeasible by the State until he 
 complies with the conditions as to aliens. 
 Hall V. Hall, 81 N. Y. 130; see Etten- 
 heimer v. Heffernan, 65 Barb. (N. Y.) 
 374; Goodrich !<. Russell, 42 N. Y. 177; 
 McClenaghan v. McClenaghan, i Strob. 
 Eq. (S. Car.) 295; s. c, 47 Am. Dec. 532; 
 Barclay v. Cameron, 25 Tex. 232; Sette- 
 gast V. Schrimpf, 35 Tex. 323. 
 
 The fact that the vendee of lands is an 
 alien does not entitle the vendor to re- 
 scind the contract. Hepburn v. Dunlop, 
 I Wheat. (U. S.) 198. 
 
 An alien who has made the primary 
 declaration to become a citizen may take 
 and hold lands and transmit them by 
 descent, though he dies before he is fully 
 naturalized. Settegast v. Schrimpf, 35 
 Tex. 323, 38 Tex. 96. 
 
 In ejectment, the plaintiff relied upon 
 the presumption of a lost grant from the 
 government to his ancestor, who was an 
 alien. Held, that he was bound to show 
 affirmatively that his ancestor had license 
 to purchase and hold, and that the fact 
 could not be presumed. Sulphen v. Nor- 
 ris, 44 Tex. 204 
 
 J., an alien, took land in the territory 
 of Michigan by deed, the title to which was 
 afterwards confirmed to him by an act of 
 Congress passed to carry into effect Jay's 
 treaty, and conveyed the same to his only 
 child M.. who was also an alien, by a 
 deed void for want of attestation. R., 
 the husband of M., after her death, with- 
 out issue, occupied the land upwards of 
 twenty years without interruption, and de- 
 
 vised it to defendants. Held, in ejectment 
 by one claiming under a grant from the 
 State of Michigan, dated a year prior to 
 the death of R. ,that the disability of alien- 
 age of M. was not removed by the act giv- 
 ing her father title in fee to the land ; that 
 the land escheated to the State after the 
 death of J. without any inquest in the na- 
 ture of office found; and that no lapse of 
 time was a bar to the rights of the State 
 by escheat. Crane v. Reeder, 21 Mich. 
 24. 
 
 Although the constitution of Texas 
 declared generally that no alien should 
 hold lands in Texas except by titles ema- 
 nating directly from the government, that 
 declaration did not divest the title of 
 aliens; for it was added that aliens should 
 have a reasonable time to take possession 
 of and dispose of their lands in a manner 
 thereafter to be pointed out by law. Be- 
 fore the title can be divested proceedings 
 for enforcing their forfeiture must be 
 provided by law and carried into effect; 
 and no such proceedings have hitherto 
 heen provided for that purpose. Airhart 
 V. Massien, 8 Otto (U. S.), 491. 
 
 Sec. 9 of Texas act of March 18, 1848 
 (Paschal, Dig. art. 44), allowing alien 
 heirs nine years in which to naturalize, 
 or to sell land inherited by them, before 
 they shall forfeit it, is not repealed by 
 the act of February 13, 1854, providing 
 that aliens shall enjoy in Texas the same 
 rights as are accorded to Americans in 
 their country under the laws and treaties 
 thereof, the latter expressly repealing 
 the former only so far as inconsistent 
 therewith. Under the former act, alien 
 heirs, by the law of whose country aliens 
 cannot inherit real estate, obtain a de- 
 feasible title to lands in Texas good for 
 nine years at least, and which will ripen 
 into an indefeasible title if, before the 
 expiration of the nine years, the law of 
 their country is so changed as to enable 
 aliens to inherit. Hanrick v. Patrick. 
 119 U. S. 156. 
 
 Article i, § 17, Const. California, pro- 
 hibiting the legislature from depriving 
 resident foreigners of any of the rights 
 enjoyed by native-born citizens with 
 respect to the acquisition, possession, 
 enjoyment, transmission, or inheritance 
 of property, does not deprive it of the 
 right to confer the same privileges on 
 non-resident foreigners. 
 
 Code Civil Proc. Cal. § 671, providing 
 for succession by non-resident foreigners, 
 confers a right to be enjoyed within the 
 State, and is not beyond the legislative 
 power as a law having an extraterritorial 
 operation. Under section 672, Civil 
 
 459 
 
Alien Friend. 
 
 ALIEN. 
 
 Mining Claim — Inheritance. 
 
 absolutely. In like manner he may take by devis«/ by bequest,* 
 and under the statute of distributions.^ If an alien dies intestate 
 
 Code Cal., requiring a non-resident alien, 
 in order to take by succession, to "appear 
 and claim the property," etc., appearance 
 in person or by attorney, and claim by 
 taking possession, or conveying or con- 
 tracting with respect to the property, or 
 any acts in the State indicating that the 
 alien asserts a right to it, are sufficient. 
 Under Civil Code Cal. § 672, providing 
 that the non-resident alien must appear 
 and claim the property "' within five 
 years from the time of succession" or be 
 barred, a proceeding brought by the at-- 
 torney-general to secure to the school 
 fund, under Const. Cal. art. g, § 4, the 
 estate of an intestate who left no resident 
 heirs as an escheat, is premature if in- 
 stituted within five years after the death 
 of the intestate. State v. Smith, 12 Pac. 
 Repr. (Cal.) 121. 
 
 Where an alien female intermarries 
 with a citizen, by virtue of the marriage 
 she becomes a citizen and capable of 
 taking and holding lands by purchase or 
 descent. Luhrs v. Elmer, 80 N. Y. 171; 
 Kelly v. Owen, 7 Wall. (U. S.) 496. 
 
 Mining Claim. — A bona-fide resident of 
 the State, though not a citizen of the U. 
 S., or having declared his intention to 
 become such, may by conveyaii^ce acquire 
 and hold the title of the locators of an 
 unpatented mining claim acquired under 
 §§ 2319 and 2322 of the U. S. R. S., and 
 has a lull and complete right to convey 
 the same. Ferguson v. Neville, 61 Cal. 
 356; see Croesus, etc., Co. v. Colorado, 
 etc., Co., 19 Fed. Repr. 78-; Territory v. 
 Lee, 2 Montana, 124; Courtney z/. Turner, 
 12 Nev. 345. Compare Golden Fleece Co. 
 V. Cable, etc., Co., 12 Nev. 312. 
 
 The right to locate and the right to 
 possess a mining claim go together; they 
 are part of the same grant, and neither 
 can exist without the other. If, there- 
 fore, the grant by assignment or convey- 
 ance falls upon an alien, incapable of 
 making a location, his possession is of no 
 consequence, the possession being trans- 
 ferred to one who, under the statutes, is 
 incapable of becoming a purchaser from 
 the government. Such possession being 
 part and parcel of the purchase is illegal, 
 and is equivalent to an abandonment, 
 and opens the ground to location and 
 possession by any qualified person. The 
 alien cannot become the government's 
 grantee, and cannot become so in a 
 roundabout way, by being the grantee of 
 the government's grantee. Tibbilts v. 
 Ah Tong, 4 Montana, 536. 
 
 Persons who are not citizens of the U. 
 
 S., or have not declared their intention 
 to become such, cannot acquire any vested 
 right to the possession of a mining claim 
 on U. S. public lands. Lee Doon v. 
 Tesh, 8 Pac. Repr. (Cal.) 621. 
 
 1. See I Washburne Real Prop. (4tb 
 Ed.) 74. n 7. 
 
 Common Law. — At common law an 
 alien could take by devise until office 
 found. Crosse v. De Valle, 1 Wall. 
 (U. S.) 13; Taylor v. Benham, 5 How, 
 (U. S.) 270; Fairfax J/. Hunter, 7 Cranch. 
 (U. S.) 602; Fox V. Southack, 12 Mass. 
 143; Foss V. Crisp, 20 Pick. (Mass). 121; 
 Vaux V. Nesbit, i McC.Ch. (S. Car.) 352; 
 Harley v. Stale, 40 Ala. 689. 
 
 While a devise of real estate to an 
 alien is void under the statute, a devise 
 to executors who are citizens, in trust, to 
 pay the income to an alien is valid, as 
 the beneficiary takes no interest in the 
 lands. Marxw. McGlynn, 88 N. Y. 357. 
 
 2. See. I Washburne Real Prop. 74, n, 
 7; Greenheld v. Morrison, 21 Iowa, 
 538; Greenia v. Greenia, 14 Mo. 526; 
 Beck V. McGillis, 9 Barb. (N. Y.) 35; 
 Meakings v. Cromwell, 5 N. Y. 136; 
 Polk V. Ralston, 2 Humph. (Tenn.) 537J 
 Com. V. Martin, 5 Munf. (Va.) 117; 
 Craig V. Leslie, 3 Wheat. (U. S.) 563. 
 
 Iniieritance from Alien. — While a hus- 
 band and wife were domiciled in this 
 State the wife inherited property from 
 her father in Norway, which, in the form 
 of money, was transmitted to this coun- 
 try. Held, that the rights of the hus- 
 band and wife in respect to such property 
 are determined by. the laws of this State 
 and not by those of Norway. Muus v. 
 Muus, 29 Minn. 115. 
 
 3. See I Washburne Real Prop (4th 
 Ed.) 74, n 7. 
 
 The law existing at the time of descent 
 cast governs the right of aliens to in- 
 herit realty. Pilla v. German, etc., 
 Assoc, 23 Fed. Repr. 700. 
 
 Common Law. — At common law an 
 alien' could not take lands by descent. 
 Fairfax v. Hunter, 7 Cranch. (U. S.) 602; 
 Orr V. Hodgson, 4 Wheat. (U. S.) 453;. 
 Lick V. Stockdale, 18 Cal. 219; Farrar v. 
 Dean, 24 Mo. 16; Slater -u. Nason, 15 
 Pick. (Mass.) 345; Mooers v. White, & 
 Johns. Ch. (N. Y.) 360; Jackson v. Fitz- 
 simmons, 10 Wend. (N. Y.) 9; o. u., 24 
 Am. Dec. 198. 
 
 And the title escheats to the State with- 
 out office found. Crane ii. Reeder, 21 
 Mich. 24; s. c. , 4 Am. Rep. 430. 
 
 By Statute. — An alien'is now enabled 
 to take as a citizen in about every State. 
 
 460 
 
Alien Friend. 
 
 alien: 
 
 Eights undor Ctatutes — Dower. 
 
 without any known heirs, his estate vests immediately in the State 
 
 A person who was born and has al- 
 ways resided in Ireland and has never 
 been in the U. S. is an alien, and is en- 
 titled, as such, to inherit, property in 
 California, and he may take it by succes- 
 sion, though he does not come here to 
 make a claim to it. State v. Lyons, 7 
 Pac. Repr. (Cal.) 763. See Purczell v, 
 Smidt, 21 Iowa, 540. 
 
 A non-resident alien may sell his in- 
 terest in an inheritance, and his assignee 
 may appear and claim under such assign- 
 ment. State V. Carrasco, 7 Pae. Repr. 
 (Cal.) 766. See De Franca v. Howard, 
 21 Fed. Repr. 774. 
 
 Alienism is an impediment to taking 
 lands by descent only when it comes be- 
 tween the stock of descent and the per- 
 son claiming to take; if some of the 
 persons who answer the description of 
 heirs are incapable of taking by reason 
 of alienage, they are disregarded, and 
 the whole title vests in those heirs com- 
 petent to take, provided they are not 
 compelled to trace the inheritance through 
 an alien. Luhrs v. Eimer, 80 N. Y. 171. 
 
 By the laws of Missouri in force in 
 i866 an alien was capable of taking by 
 descent lands in that State, and of hold- 
 ing and alienating them, if he either re- 
 sided in the United States, and, by tak- 
 ing the oath prescribed by the act of 
 Congress, had declared his intention to 
 become a citizen, or resided in Missouri, 
 although the ancestor through whom he 
 claimed was, at the time the descent was 
 cast, an alien, who, by reason of his 
 non-residence, was incapable of inherit- 
 ing. The statute of 1855 which gave to 
 a non-resident alien the right within a 
 limited period to sell and convey the 
 lands whereof the intestate died seized, 
 applied only where at the time of his 
 death there was no person capable of 
 taking them by descent. Sullivan v. 
 Burnett, 105 U. S. 334.' 
 
 An alien could inherit land in Texas 
 under the constitution of the republic 
 and the act of 1840. § 14 of the act of 
 1840, as re-enacted in '1848, is part of an 
 act regulating descent and distribution, 
 and when considered with reference to 
 the context it follows by necessary con- 
 struction that aliens are embraced in the 
 terms " kindred," " children," " descend- 
 ants," "heirs," and other like expres- 
 sions, and that section is in the nature 
 ©f a limitation upon the rights of aliens 
 in that respect. Hanrick v. Hanrick, 
 61 Tex. 5g6. 
 
 Where a non-resident alien purchased 
 land and received a patent therefor from 
 
 the U. S., held, that he took an estate 
 of inheritance therein, and the State 
 could not question his title by escheating 
 the lands or nullifying the sale; but un- 
 der §§ 2488-2493, R. S. i860, heirs that 
 were non-resident aliens would not in- 
 herit such land, and where a portion of 
 the heirs were residents and citizens 
 here they would take the land to the ex- 
 clusion of the alien non-resident. King 
 V. Ware, 53 Iowa, 97. 
 
 J., a naturalized citizen, died in 1866 
 intestate and seized of certain real 
 estate. He left him surviving his widow, 
 his father, the defendant B., who was 
 his sister and the wife of a citizen, and 
 two alien children of a deceased sister 
 who was an alien. The widow died in 
 1870. B. in 1873, by judgment in an 
 action of ejectment, wherein she founded 
 her claim upon her title by descent, re- 
 covered possession of the premises'. 
 She contracted to sell the same to plain- 
 tiff in 1877. Upon submission of the 
 controversy as to her title under section 
 1279 of the Code of Civil Procedure, 
 held, that the title to the premises .vested 
 in B. upon the death of her brother; that 
 the act of 1874 (chap. 261 of Laws of 
 1874) amending the said provision of 
 the act of 1845, by inserting after the 
 words "resident alien" the words "or 
 any naturalized or native citizen," could 
 not operate to divest her estate thus ac- 
 quired, and that, therefore, she could 
 give a good title and was entitled to a 
 performance of the contract. Luhrs 'v. 
 Elmer, 80 N. Y. 171. 
 
 Dower. — At common law it was held 
 that if an alien woman marry a subject 
 she could not claim dower. 'Sutliff v. 
 Forgey, i Cow. (N. Y.) 8g. See Mick 
 V. Mick, 10 Wend. (N. Y.) 380; Connol- 
 ly V. Smith, 21 Wend. (N. Y.) 59. 
 
 But by statute she is now in almost 
 if not every State entitled to dower, i 
 Washburne Real Prop. (4th, Ed.) 74, n. 7; 
 Bennett w. Harms, 51 Wis. 251; State t*. 
 Beackmo, 8 Blackf. (Ind.) 246; Eldon v. 
 Doe, 6 Blackf. (Ind.) 341 Stokes !■. O'Fal- 
 lon, 2 Mo. 32; Piper v. Richardson, 9 
 Mete. (Mass.) 155; Mussey v. Pierce, 24 
 Me. 559; Whiting v. Stevens,' 4 Conn. 
 44; Hall V. Hall, 81 N. Y. 130: Colgan 
 V. McKeon, 4 - Zab. (N. J.) 566; Reese 
 v, Waters, 4 W. & S. (Pa.) 145; Head- 
 man V. Rose, 63 Ga. 458; Forrester v. 
 Forrester. 39 Ala. 320; Alsberry v. Haw- 
 kins, 9 Dana (Ky.), 177; s. c, 33 Am. 
 Dec. 546; Moore v. Tisdale, 5 B. Mon. 
 (Ky.) 352- 
 
 If an alien husband, after desertion of 
 
 461 
 
. Alien Triend. 
 
 ALIEN. 
 
 Bights and Bestrictionr. 
 
 "without office found.* He may obtain a patent or file a caveat.* 
 He may protect a trade-mark by suit,^ and to some extent a copy- 
 right.* 
 
 He may sue and be sued,^ or having suffered injury may prose- 
 
 his wife, settles in Tennessee, and dies, 
 leaving an alien wife abroad, she is en- 
 titled to dower in the lands of her de- 
 ceased husband, but is not entitled to 
 homestead. Emmett v. Emmett, 14 
 Lea (Tenn.), 369. See Burton v. Bur- 
 ton, I Keyes (N. Y.), 359. Compare Als- 
 ~berry v. Hawkins, g Dana (Ky.), 177^ 
 s. c, 33 Am. Dec. 546. 
 
 A wife who is a non-resident of the 
 State at the time the husband makes an 
 
 ■ absolute conveyance of lands, divesting 
 himself entirely of his seizin and estate, 
 has no right of dower under the statutes 
 of this State in the lands so conveyed. 
 Ligare v. Semple, 32 Mich. 438; Ben- 
 nett V. Harms, 51 Wis. 251. 
 
 An alien husband who makes the pre- 
 liminary declaration of his intention to 
 become a citizen before the death of his 
 wife, and completes his naturalization 
 after her death, is not entitled to her 
 land as tenant by the curtesy. Foss v. 
 ■Crisp, 20 Pick. (Mass.) 121. 
 
 1. Sands v. Lynham, 27 Gratt. (Va.) 
 291; s. c, 21 Am. Rep. 348; Hinkle u. 
 
 ."Sliadden, 2 Swan (Tenn.), 46. 
 
 A sale of such lands to satisfy a debt 
 
 -against an alien in a proceeding to which 
 the State is not a party, is void as to the 
 State, but the purchaser at such sale is 
 entitled to be substituted to the rights of 
 the creditor, and i! the claim is just, to 
 have lands subjected to its payment. 
 
 -Sands v. Lynham, 27 Gratt. (Va.) 291; 
 s. c, 21 Am. Rep. 348. 
 
 2. Walker on Patents, § 423; Curtis 
 on Patents. 
 
 3. Taylor v. Carpenter, 2 Wood & M. 
 (U. S.); I s. c, 42 Am. Dec. 114; Coffeen 
 V. Brunton, 4 McLean (U. S.). 516. See 
 Coats V. Holbrook, 11 Paige (N. Y.), 292. 
 
 4. Where a piano-forte arrangement 
 
 ■ of the orchestral score of an opera was 
 made by a U. S. citizen, with the con- 
 sent of the non-resident foreign com- 
 posers of the opera, and then transferred 
 
 'by him to a fellow-citizen, who procured 
 a copyright, which he assigned to a non- 
 resident foreigner, acting as agent of the 
 ^original composers of the opera, held, 
 that there was nothing of evasion or vio- 
 lation of law, iind that the assignee was 
 entitled to the protection of the court 
 against infringers. Cart u. Evans, 27 
 Fed. Repr. 861. 
 
 6. U. S. Rev. Stat. g§ 563; 1 16, 629; 
 TT I. 639; IT I. 1068; Taylor v. Carpen- 
 
 ter. 2 Wood & M. (U. S.) 1; De Laviaga 
 V. Williams, 5 Sawy. (U. S.) 573; Air- 
 hart V. Massieu, 8 Otto(U. S.), 491; U. S. 
 O'Keefe, 11 Wall. (U. S.) 178; Carlisle 
 ■V. U. S., 16 Wall. (U. S.) 147; Lorway w. 
 Lousada, i Low (U. S.). 78; In re Ah 
 Fong, 3 Sawy. (U. S.) 144; St. Luke's 
 Hospital o. Barclay, 3 Blatchf. (U. S.) 
 265; Brown v. U. S.. 5 Ct. of CI 571; 
 McNair v. Toler, 21 Minn. 175; Den v. 
 Brown, 2 Halst. (N. J.) 305. See Stees 
 V. Leonard, 20 Minn. 494; Mitchell v. 
 Wells, 37 Miss. 235. 
 
 The jurisdiction of the circuit courts of 
 U. S. of suits by citizens against aliens 
 is not defeated by the fact that the de- 
 fendant is the consul of a foreign gov- 
 ernment. Bors V. Preston, 11 1 U. S. 252. 
 
 Where alien plaintiffs expressly sue as 
 a class for the benefit of the class, all of 
 whom, whether named or not, may avail 
 themselves of the decree, if obtained, a 
 citizen, member of the class, joined with 
 them, may be regarded as an unnecessary 
 and formal party, whose joinder does not 
 affect the defendants' right of removal. 
 The extraterritorial service of process 
 upon alien defendants, who have not vol- 
 untarily appeared, is ineffectual to bring 
 them within the jurisdiction of the court, 
 or make them parties to the suit; and 
 the fact that these persons are named as 
 defendants is no obstacle to its removal. 
 McHenry v. New York, etc., R. Co., 25 
 Fed. Repr. 65. 
 
 Declaration of intention to become a 
 citizen of the United States does not 
 make the citizen or subject of a foreign 
 country cease to be such, within the act 
 of March 3, 1875, so as to prevent his re- 
 moval of a suit from the State court. 
 Maloy V. Duden, 25 Fed. Repr. 673. 
 
 A resident alien is not within the stat- 
 ute requiring non-residents to give secu- 
 rity for costs, unless such residence is 
 merely temporarv. Norton v. Mackie, 
 8 Hun (N. Y.), 520. 
 
 A delfendant having pleaded to a. 
 declaration in which his being an alien 
 was not set forth, and having, although 
 the fact was brought out upon the evi- 
 dence, offered no objection then, but 
 suffered the case to proceed to verdict, 
 cannot, after verdict against him, be al- 
 lowed a new trial for the purpose of hav- 
 ing the action dismissed for want of 
 jurisdiction. Hartog v. Memory, 116 
 U. S. 588. 
 
 462 
 
Alien Friend. 
 
 alien: 
 
 Bights and Bestrictions. 
 
 cute the offenders.^ He may be tried for crime.* The right to 
 reside in the country implies a right to trade and labor.^ 
 
 An alien may serve as an administrator or executor unless pro- 
 hibited by statute.* 
 
 He is not liable to military service, but if he voluntarily enlists 
 he will be held to serve out the term of enlistment.' 
 
 An alien married woman, abandoned by an alien husband in a 
 foreign country, coming to this country to reside, is competent to 
 contract for her support and maintenance, and to sue and be sued 
 in the same manner as a feme sole.^ 
 
 Unless empowered by statute, an alien can create a trust in 
 ]ands only until office found, but he can create a valid trust of 
 personal property.'' He can take and hold lands by grant in trust 
 to the same extent that he can take and hold the legal title. ^ He 
 cannot plead his alienage to defeat any trust that may be charged 
 upon the lands that come to him.* 
 
 An alien may be a corporator and a trustee for a corpora- 
 tion. i" 
 
 An alien may bring suit to foreclose a 
 mortgage. Hughes v. Edwards, 9 Wheat. 
 (U. S.) 496. 
 
 Alienage does not relieve a defendant 
 from liability, under the provisions of 
 the bankrupt act, to account for property 
 transferred to him by the bankrupt in 
 fraud of that act. When an alien comes 
 here and violates the bankrupt law, he 
 subjects himself and his property, if 
 found here, to the remedies given by law. 
 Olcott V. Maclean, 73 N. Y. 223. 
 
 1. 3 Op. Atty.-Genl. 253. 
 
 The courts of a State have jurisdiction 
 of an action brought by one foreigner 
 against another for a tort committed in a 
 foreign country, but it will only be exer- 
 cised in exceptional cases. Dewitt v. 
 Buchanan, 54 Barb. (N. Y.) 31. See 
 Roberts v. Knights, 7 Allen (Mass.). 449. 
 
 2. People V. McLeod, i Hill (N. Y.), 
 377; 25 Wend. (N. Y.) 483; s. c, 37 Am. 
 Dec. 328. 
 
 3. Baker w. Portland, 5 Sawy. (U. S.) 
 566. 
 
 A State statute forbidding certain aliens 
 from working in a mining claim, either 
 for themselves or others, is null and void. 
 Chapman v. Toy Long, 4 Sawy. (U. S.) 
 36; Baker v. Portland, 5 Sawy. (U. S.) 
 566. 
 
 4. Cutler v. Howard, g Wis. 309. 
 
 Whether an alien enemy can be an ad- 
 ministrator or executor, see i Williams 
 on Exrs. 229; Schouler's Exrs. §§ 32, 
 log; Cutler v. Howard, 9 Wis. 309; 
 Headman v. Rose, 63 Ga. 458; Hebert 
 V. Jackson, 28 La. Ann. 377; Vogel's 
 Case, 20 La. Ann. 81; Poindexter's Case, 
 
 ig La. Ann. 22; Berney v. Drexel, i: 
 Fed. Repr. 3g3. 
 
 5. Wilson -J. Izard, i Paine (U.S.), 68 
 In re Scheel, 54 How. Pr. (N. Y.) 478 
 U. S. V. Wyngall, 5 Hill (N. Y.), 16 
 U. S. V. Cottingham, i Rob. (Va.) 615 
 s. c, 40 Am. Dec. 710; In re Wehlitz, 16 
 Wis. 443. Compare People v. Clark, 54 
 How. Pr. (N. Y.)488. 
 
 6. Wagg V. Gibbons, 5 Ohio St. 580; 
 Gregory!/. Paul, 15 Mass. 31; Abbot v. 
 Bayley, 6 Pick. (Mass.) 90; McArthur v. 
 Bloom, 2Duer(N. Y.), 151; Blumenberg 
 V. Adams, 49 Cal. 308. See Robinson v. 
 Reynolds, i Aik. (Vt.) 174; s. c, 15 Am. 
 Dec. 673. 
 
 7. I Perry on Trusts (3d. Ed.), § 36. 
 
 8. I Perry on Trusts (3d. Ed.). § 55. 
 See Jackson v. Lunn, 3 Johns. Cas. (N. 
 Y.) 109; Jackson v. Adams, 7 Wend. (N. 
 Y.) 367. 
 
 Where by the laws of a State aliens are 
 prohibited from acquiring and holding 
 lands, a deed made by A to B upon a 
 secret trust for C, who is an alien, A 
 having no knowledge of the trust, is not 
 void; the trust only is void. Hammekin 
 V. Clayton, 2 Woods (U. S.), 336. See 
 Leggett v. Dubois, 5 Paige (N. Y.), 114; 
 s. c, 28 Am. Dec. 413; Taylor v. Ben- 
 ham, 5 How. (U. S.) 270; Philips v. 
 Crammond, 2 .Wash. (U. S.) 441. 
 
 If an alien is made the cestui que trust 
 of land, he may enjoy it to same extent 
 as he could the legal title, i Perry on 
 Trusts, § 64. 
 
 9. I Perry on Trusts (3d. Ed.) § 55. 
 
 10. Cammeverw. United Ger. Churches, 
 2 Sandf. Ch. (N. Y.) i85. 
 
 463 
 
Alien Ftiend. 
 
 ALIEN. 
 
 Sights and Sestrictions. 
 
 An alien cannot vote* or hold a political office,* nor serve as a 
 juror,^ nor be the master of an American vessel,* nor be admitted 
 to the bar.^ 
 
 He may be taxed.® He cannot at common law be a tenant by 
 curtesy.'' He cannot gain a settlement under the poor laws.** 
 
 1. Cooley's Const. Lira. (4th Ed.) 38. 
 The Minnesota constitution allows 
 
 aliens to vote at State elections and hold 
 office. See Lanz v. Randall, 4 Dill. (U. 
 S.) 425. 
 
 A foreign-born infant came to this 
 country as a member of the family of his 
 reputed father, whose wife was the in- 
 fant's mother. The father was natural- 
 ized. Held, that the child's right to vote 
 upon his becoming of age could not be 
 impeached upon the ground that he was 
 illegitimate and not really the son of his 
 reputed father. Dale v. Irwin, 78 111. 
 171. 
 
 2. Walther v. Rabolt, 30 Cal. 185. 
 
 An alien may be elected to a public 
 office, and may hold the same if his dis- 
 ability is removed before the term of 
 office begins. State v. Murray, 28 Wis. 
 96; s. c, 9 Am. Rep. 489; State u. 
 ■Prumpf, 50 Wis. 103; Walther v. Rabolt, 
 30 Cal. 185. 
 
 3. Borst V. Becker, 6 Johns. (N. Y.) 
 332; Grubb V. State, 14 Wis. 434; Byrne 
 V. State, 12 Wis. 519. 
 
 A statute which makes alienage a cause 
 of challenge pf a juror requires only that 
 he be a citizen of this State, and not that 
 he shall be a citizen of the United States. 
 McDonel v. State, go Ind. 320. 
 
 Where aliens are prohibited by statute 
 from serving on juries generally, held, 
 that an alien accused of a crime could not 
 have a jury de medietati. People z".. Chin 
 Mook Sow, 51 Cal. 597. 
 
 It is a good plea in abatement to an 
 indictment that one of the grand jury 
 who found it was an alien. Reich v. 
 State, 53 Ga. 73; b. c. , 21 Am. Rep. 265. 
 
 Where alieijage of granti jurors finding 
 an indictment is alleged as ground for 
 challenge, party must show such alienage 
 affirmatively. Upon a challenge to two 
 grand jurors on the ground of alienage, 
 it appeared that, as to one of them, 
 though born in Canada, his father was a 
 native of the United States, and the juror 
 moved into the United States at the age 
 of 16; as to the other, that he was born 
 in Ireland, came to this country at the 
 age of 12, and the father was naturalized 
 when the juror was a minor. Held, that 
 the challenges were properly overruled. 
 Slate f. Haynes, 54 Iowa, log. 
 
 A verdict rendered by a jury two of 
 
 whose members were aliens is erroneous 
 but not void. It might be reversed 9n 
 appeal, but it cannot be disregarded as a 
 nullity. Foreman v. Hunter, 59 Iowa, 
 550. 
 
 Alienage of a jurer held not assigna- 
 ble after verdict. Johr v. People, 26 
 Mich. 427; Chase v. People, 40 III. 352; 
 Hollingsworth v. Duane, 4 i)all. (Pa.) 
 353; State V. Quarrell, 2 Bay. (S. Car.) 
 150; s. c, I Am. Dec. 637; Siller v. 
 Cooper, 4 Bibb. (Ky.) 90; State v. Har- 
 din, 25 La. Ann. 369; Bonneville v. 
 State, 53 Wis. 680. 
 
 An alien not being qualified to sit upon 
 a jury, it is not improper for the court, 
 upon discovering such a one upon the 
 panel after its completion but before fur- 
 ther proceedings had in the case, to order 
 such person to stand aside and be dis- 
 charged, and another juror drawn in his 
 stead, giving permission meantime to 
 the defendant to challenge the other 
 eleven jurors, either peremptorily or for 
 cause. People v. Barker, 27 N. W. Repr. 
 (Mich.) 539. 
 
 An alien is not disqualified as a juror 
 in the District of Columbia. Queen v. 
 Hepburn, 2 Cranch. C. C. 3. 
 
 4. The Dubuque 2 Abb. (U. S.) 28. 
 
 5. Weeks on Attys. § 43. 
 
 An alien may not be admitted to practice 
 as an attorney and counsellor-at-law. The 
 provision of the rule of the Court of Ap- 
 peals authorizing the admission of per- 
 sons who have practised three years in 
 the highest courts of law of another 
 country applies only to the case of a citi- 
 zen of the U. S. who has thus practised. 
 It seems that the legislature has power 
 under the Constitution to authorize the 
 admission of persons not citizens of the 
 State. In re O'Neill, 90 N. Y. 584. 
 
 6. Cooley on Taxation, §§ 14, 15; 
 Kuntz V. Davidson, 6 Lea (Tenn.), 65; 
 Scholey v. Rew, 23 Wall. (U. S ) 331. 
 
 The legislature may lay a poU-jax upon 
 an alien who is an inhabitant of the State. 
 Kuntz V. Davidson, 6 Lea (Tenn.), 65. 
 
 7. Mussey v. Pierre, 24 Me. 559; Pass 
 ■u. Crisp, 20 Pick. (Mass.) 121: Hatfield 
 V. Sneden, 54 N. Y. 280: Reese w. Waters, 
 4 W. & S. (Pa.) 145; Copeland v. Sauls, 
 I Jones L. (N. Car.) 70. 
 
 8. Knox V. Waldoborough, 3 Me. 455; 
 Jefferson v. Litchfield, i Me. ig6. 
 
 464 
 
Allen Friend, 
 
 ALIEN. 
 
 Alien Enemy. 
 
 Effect of Treaties. — Every treaty made by the authority of the 
 United States is superior to the constitution and laws of any indi- 
 vidual State. If the law of a State refuses certain rights to aliens 
 which are secured by treaty, such law is void.^ 
 
 3. Alien Enemy is one who owes allegiance to the adverse bellig- 
 erent. The tendency of modern law is to give them protection 
 for person and property until ordered out of the country.'-* 
 
 1. Hauenstein v. Lynham, loo -U. S. 
 483; People V. Gerke, 5 Cal. 381. 
 
 As to construction of treaties, see Orr 
 V. Hodgson, 4 Wlieat. (U. S.)453; Blight 
 V. Rochester, 7 Wheat. (U. S.) 535 ; Craig 
 V. Radford, 3 Wheat. (U. S.) 594; Hughes 
 V. Edwards, 9 Wheat. (U. S.)489; Shanks 
 V. Dupont, 3 Pet. (U. S.) 242: Fox v. 
 Southack, 12 Mass. 143; Crane v. Reeder, 
 21 Mich. 24; s. c, 4 Am. Rep. 430; Peo- 
 ple V. Snyder, 41 N. Y. 397; Munro v. 
 Merchant, 28 N. Y. 9; Jackson v. 
 Wright, 4 Johns. (N. Y.) 75; Jackson v. 
 Decker, 11 Johns. (N. Y.)4i8; Stephen 
 V. Swann, g Leigh. (Va.) 404; Fioit v. 
 Commonwealth, 12 Gratt. (Va.) 564. 
 
 A treaty stipulation may be effectual 
 to protect the land of an alien from for- 
 feiture by escheat under the laws of a 
 State. Orr v. Hodgson, 4 Wheat. (U. S.) 
 453; Hauenstein v. Lynham, 100 U. S. 
 483. 
 
 Where a treaty allows a specified time 
 within which alien heirs can sell the prop- 
 erty and withdraw the proceeds, it oper- 
 ates in the absence of or in place of State 
 laws. During the period named alien 
 heirs enjoy all the rights of resident 
 heirs. Kull v. Kull, 37 Hun (N. Y.), 476. 
 
 The alien heirs must act within the 
 time allowed by treaty; and if the treaty 
 makes no exception in case of infants, 
 ihey are equally cut off. Wieland v. 
 Renner, 65 How. Pr. (N. Y.) 245. 
 
 The treaty between the U. S. and Switz- 
 erland declares that in case real estate 
 in one country shall fall to a citizen of 
 the other, who, on account of alienage, 
 could not be permitted to hold such 
 property in the State or canton where it 
 is situated, there shall be accorded to 
 such heir "such time as the laws of the 
 State or canton will permit " to sell such 
 property, and he shall be at liberty to ex- 
 port the proceeds theroon. Held, that 
 if a State had such a law, the estate must 
 be closed within the time prescribed; but 
 if it had not such a law, itwas competent 
 to enact one, and until one exists there 
 can be no bar arising from lapse of time. 
 Hauenstein v Lynham, 100 U. S. 483, 
 reversing 28 Gratt (Va.) 62. See Jost 
 V. Jost, I Mackey (D. C), 487. 
 
 A statute of California prohibiting all 
 
 aliens incapable of becoming electors 
 from fishing in the waters of the State is 
 a violation of the Fourteenth Amend- 
 ment of the U. S. Const, and of the 5th 
 and 6th articles of the treaty with China, 
 and is void. In re Ah Cho'ng v. U. S. 
 Pac. Coast, L. J., June 12, 1880. 
 
 Where the laws of the country witji 
 which the treaty is made allow claims to 
 be prosecuted against the government, 
 the same privilege will be extended to 
 aliens bv this country. De Give v. U. S., 
 7 Ct. of' CI. 517; Fichera v. U. S., g Ct. 
 of CI. 254; Rothschild v. U. S., 6 Ct. of 
 CI. 205; Dauphin v. U. S., 6 Ct. of CI. 
 221; Collie V. U. S., 9 Ct. of CI. 431; 
 Brown V. U. S., 5 Ct. of CI. 571; U. S. 
 V. O'Keefe, 11 Wall. (U. S.) 178; Carlisle 
 V. U. S., 16 Wall. (U. S.) 147. 
 
 2. Bouvier's Law Diet. See Green- 
 hood on Pub. Policy, 371 et seq. 
 
 An alien enemy is not civiliter mortuus; 
 he is alive, but under a disability. De 
 Wahl V. Braune, i H. & N. 178. 
 
 An alien enemy may be sued, and his 
 liability to suit carries with it the right to 
 employ counsel. McVeigh v. U. S., 11 
 Wall. (U. S.) 259; Masterson v. Howard, 
 18 Wall. (U. S.) 99; M'Nair v. Toler, 21 
 Minn. 175; Seymour v. Bailey, 66 III. 
 288; Dejarnettew. De Giverville, 56 Mo. 
 440; Russ V. Mitchell, 11 Fla. 80. 
 
 The objection that the plaintiff is an 
 alien enemy is waived unless taken by 
 answer or demurrer. M'Nair v. Toler, 
 21 Minn. 175. See Burnside i/. Mat- 
 thews, 54 N. Y.~ 78. 
 
 A plea of an alien enemy which does 
 not contain an averment that such was 
 the character and status of the plaintiff 
 when suit was commenced is bad on de- 
 murrer. Elgee V. Lovell, i Woolw. (U. S.) 
 102, no. 
 
 A valid debt by note, bond, or contract 
 is not nullified by war. ' The debt is sus- 
 pended until peace returns. Sands v. 
 N. Y. Life Ins. Co., 50 N. Y. 626; s. c, 
 10 Am. Rep. 535. 
 
 As to deeds or mortgages between citi- 
 zens of the United States and Confede- 
 rate States made during the war, see 
 Filar v. U. S., 3 Ct. of CI. 25; Dillon v. 
 U. S., 5 Ct. of CI. 586; Hill V. Baker, 32 
 Iowa, 302; Mims v. Armstrong, 42 Miss. 
 
 465 
 
ALIEN A TE— ALIEN A TED—ALIENA TION. 
 
 ALIENATE. — The act by which the title to an estate is volunta- 
 rily resigned by one person and accepted by another, in the forms 
 prescribed by law.^ 
 
 ALIENATED.— A transfer of title.** 
 
 ALIENATION. — A mode of obtaining an estate by purchase by 
 which it is yielded up by one person and accepted by another. ^ 
 
 429; Hyatt V. James, 2 Bush (Ky.), 463; 
 Shaw v. Carlisle, 9 Heisk. (Tenn.) 594. 
 
 As to deeds between citizens of the 
 Confederate States of lands situated 
 within the Federal lines, see Conrad v. 
 Waples, 96 U. S. 279. 
 
 A lease of lands in Mississippi between 
 a citizen of Massachusetts and a citizen 
 of Mississippi held valid. Kershaw v. 
 Kelsey, 100 Mass, 561. Compare Shot- 
 well V. Ellis, 42 Miss. 439. 
 
 As to contracts of sale between citizens 
 of the United States and citizens of the 
 Confederate States, see Walker v. U. S., 
 106 U. S. 413. 
 
 A citizen of Virginia during the exist- 
 ence of the late war could not maintain 
 an action in the, couns of Maryland. 
 Whelan v. Cook. 2g Md. I. 
 
 On a suit to foreclose a mortgage dur- 
 ing the late war, notice was given to the 
 mortgagor, who was an officer in the 
 Confederate army, by publication in a 
 newspaper within the Union lines. Held, 
 that such notice was ineffectual to bind 
 the mortgagor, and a sale of the mort- 
 gaged property was void and inoperative. 
 Johnson v. Robertson, 34 Md. 165. Com- 
 pare Ludlow V. Ramsey, 11 Wall. (U. S.) 
 581; Dean v. Nelson, 10 Wall. (U. S. 158.) 
 
 The creditors of a party who is an alien 
 enemy may have the same remedy against 
 his property, remaining within the juris- 
 diction of the State, as they could have 
 against the property of any other non- 
 resident debtor. ,Dorsey v. Kyle, 30 
 Md. 512; Dorsey v. Dorsey, 30 Md. 522. 
 
 1. The term "alienate" has a technical 
 legal meaning, and any transfer of real 
 estate short of a conveyance of the title 
 is not an alienation of the estate. No 
 matter in what form the sale may be 
 made, unless the title is conveyed to the 
 purchaser the estate is not alienated. 
 Masters w. Madison Co. Mut. Ins. Co., 
 II Barb. (N. Y.)'629. 
 
 2. Masters v. Madison Co. Mut. Ins. 
 Co., II Barb. (N. Y.) 629. 
 
 To alienate is to transfer property in 
 anything to another; and an alienation 
 is to make a thing anotherman's — to alter 
 the possession from one to another. To 
 alienate real estate is voluntarily to part 
 with it, either by bargain and sale or by 
 some conveyance, or by gift or will. The 
 
 right to alienate was a right which the 
 owner had over real estate to divest it 
 from the heir. Consequently where 3 
 policy of insurance contained a clause 
 avoiding it if the property should be alien- 
 ated by sale or otherwise, the death of 
 the assured intestate would not avoid. 
 Burbank v. Rockingham M. F. I. Co., 
 24 N. H. 558. 
 
 The property from which the fund in 
 the sheriff's hands was raised had been 
 " alienated "by the defendant in thisyf. 
 fa. at some time between "the signing 
 of the first judgment and the signing of 
 the judgment on the appeal;" that is, the 
 property had, in the interval, been mort- 
 gaged to these mortgagees." Phillips et 
 al V. Behn & Foster, 19 Ga. 302. 
 
 3. An act whereby one man transfers 
 the property an(J possession of lands, ten- 
 ements, or other things to another per- 
 son. Boyd V. Cudderback et al.. 31 111. 
 119; Masters v. Madison Co. Mut. Ins. 
 Co., II Barb. (N. Y.) 629. 
 
 Alienation and Descent. — Alienation 
 differs from descent in this, that aliena- 
 tion is effected by the voluntary act of 
 the owner of the property, while descent 
 is the legal consequence of the decease 
 of the owner and is not changed by any 
 previous act or volition of the owner. 
 There is, however, a species of involun- 
 tary alienation, so made by the statutes 
 of 13 Edward I. and 27 Edward II., by 
 which the land becomes answerable by 
 attachment and execution for the debts of 
 the owner. Burbank v. Burlington M. 
 F. Ins. Co., 24 N. H. 558. 
 
 In Insurance Policies. — A mortgage is 
 not such an alienation of property as will 
 defeat a policy of insurance which pro- 
 vides that if the property insured is alien- 
 ated the policy shall be void. Smith v, 
 Mut. F. Ins. Co., 50 Me. 96; Pollard v, 
 Somerset M. F. Ins. Co., 42 Me. 221. 
 
 But the defeasance should be seasona- 
 bly recorded under the Maine law. Tom- 
 linson v. Monmouth Mut. F. Ins. Co., 
 47 Me. 232. 
 
 In other States this would not seem to 
 be necessary. Shepherd v. Union Mut. F. 
 Ins. Co., 38 N. H. 232; Allen v. Hudson 
 River Mut. Ins. Co., 19 Barb. (N. Y.) 4424 
 Conover v. Mutual Ins. Co. of Albany 
 3 Denio (N. Y.), 254; Burbank v. Rock- 
 
Definition. 
 
 ALIMONY. 
 
 SefiaitioiU-. 
 
 ALIMONY. — 1. Definition. — Alimony in divorce law is the allow- 
 ance which a husband pays, by order of court, to his wife, while-, 
 living separate from her, for her maintenance ; or it may be a like 
 provision ordered for the sustenance of a woman divorced from 
 the bond of matrimony, out of her late husband's estate — the 
 latter branch of the definition denoting a form of alimony known 
 only to the modern law. It may be for the wife's use during the 
 pendency of the suit, called alimony pendente lite, or after its ter- 
 mination, known as permanent alimony.^ 
 
 ingham Mutual Ins. Co., 24 N. H. 558; 
 Rollins V, Columbian F. Ins. Co., 25 N. 
 H. 200. 
 
 Nor will the transfer of the interest of 
 one co-tenant to another co-tenant be 
 such an alienation as will avoid the poli- 
 cy. Lockwood V. Middlesex Mut. Assur. 
 Co., 47 Conn. 553. 
 
 Nor will the leasing of the building be 
 such an alienation. Lane v. Maine M. 
 F. Ins. Co., 12 Me. 44. 
 
 Nor the mortgage of personal property 
 without the transfer of the possession. 
 Rice et at. v. Tower & Trustees, i Gray 
 (Mass.), 426. 
 
 Where, however, the by-laws of a mu- 
 tual insurance company provided that 
 ' ' all alienation and alterations in the own- 
 ership, situation, or state of the proper- 
 ty insured by this company in any mate- 
 rial particular shall avoid any policy, 
 etc.," it was held that the policy was 
 avoided by a mortgage. Edwards v. Mu- 
 tual Safety F. Ins. Co., i Allen (Mass.), 
 311; Edes f< «/. V. Hamilton Mut. Ins. 
 Co., 3 Allen (Mass.), 362. 
 
 And where personal property was sold 
 by a master in chancery, but before the 
 fire the decree under which the sale had 
 been made had been vacated, yet there 
 was such an alienation as avoided the 
 policy. Mt. Vernon Mfg. Co. v. Sum- 
 mit Co. Mut. F. Ins. Co., 10 Ohio St. 
 
 347. 
 
 But an execution sale of the realty will 
 not avoid the insurance policy. See 
 Hammel v. Queens Ins. Co , 54 Wis. 72. 
 
 In UoTtmain. — Alienation in mortmain 
 in its primary signification is an aliena- 
 tion of lands or tenements to any corpo- 
 ration, aggregate, ecclesiastical, or tem- 
 poral, the consequence Of which in former 
 times was that by allowing lands to be- 
 come vested in objects endued with per- 
 petuity of duration the lords were de- 
 prived of escheats and other feudal prof- 
 its. Perin et al. v. Carey et al., 24 How. 
 (N. Y.) 495; Bonning v. Marshall, 23 
 How. Pr. (N. Y.) 134- 
 
 In Statute. — The statute of descents 
 provides " that if a widow shall marry a 
 
 second or any subsequent time, holding 
 real estate in virtue of any previous mar- 
 riage, such widow may not during such 
 marriage, with or without the consent of 
 her husband, alienate such real estate." A 
 mortgage is in some sense an alienation, 
 and fairly within the prohibition of the 
 statute. Vennedge et al., v. Shaffer, 35 . 
 Ind. 341. 
 
 A deed of an undivided three fourths 
 of grantor's homestead, in 1851, to A as 
 trustee for grantor's wife, and X and Y, 
 his two children, and their heirs and as- 
 signs, without any duty charged upon 
 the trustee in relation thereto, was not 
 void for want of the wife's signature, not 
 being an alienation of the homestead 
 within the meaning of the statute. 
 Riehl V. Burgenheimer, 28 Wis. 84. 
 
 The words in the homestead laws 
 avoiding any "grant or conveyance" 
 without a bona-fide entry on the lands are 
 as broad as "alienation," and conse- 
 quently a mortgage would be avoided, for 
 at the time of passing the act in ques- 
 tion (about 1 841) a mortgage was an alien- 
 ation. Brewster v. Madden, 15 Kans. 
 250. 
 
 A conveyance of real estate before 
 suit commenced by a mother who inher- 
 ited it from her child, to whom it de- 
 scended from the father, is not an aliena- 
 tion under a statute making an heir or a 
 devisee liable for his ancestor's debts to 
 the value of the land alienated, if he alien 
 before action brought or process sued 
 out. Maydwell v. Maydwell et al., g 
 Heisk. (Tenn.) 571. 
 
 1. 2 Bishop on M. & D. (6th Ed.) § 
 351. For other definitions see Godol. Abr. 
 508; Burr V. Burr, 7 Hill (N. Y.) 207, 
 213; Wallingsford v. Wallingsford, 6 H. 
 & J. (Md.)485, 488; Parsons v. Parsons, 
 9 N. H. 309; Wooldridge- w. Lucas, 7 B. 
 Mon. (Ky.) 49, 51; i Blk. Comm. 441; 
 Cooke V. Cooke, 2 Phillim. 40, 41; Bow- 
 man v. Worthington, 24 Ark. 522. 533; 
 Lyon V. Lyon, 21 Conn. 185. 197; Odom. 
 V. Odom, 36 Ga. 286, 320; Stiliman v. 
 Stillman, 99 111. 196, 201 ; Newman v. 
 Newman, 69 111. 167 ; O'Hagan w^_ 
 
 467 
 
Jurisdiction. 
 
 ALIMONY. 
 
 Jurisdiction. 
 
 2. Jurisddetion. — Where alimony is granted as an incident of 
 divorce, the court which has jurisdiction to decree the divorce has 
 also the power to grant alimony,^ provided it obtains jurisdiction 
 of both parties ; but if the divorce was ex parte and the defendant 
 is domiciled in another State and does not appear, no alimony can 
 be grantedf unless he has been duly served with process within 
 the jurisdiction of the court or appears and defends.^ 
 
 When the wife has obtained a divorce in one State with which 
 no alimony was granted, she has, in some cases, been permitted to 
 obtain from the court of the domicile of the husband a decree for 
 alimony.* If after alimony is decreed the husband moves to 
 another jurisdiction, the decree can be enforced by the courts of 
 the latter,'* or by the United States courts.* 
 
 Without domicile there is usually no jurisdiction to decree 
 
 O'Hagan, 4 Iowa, 509; Russell v. Rus- 
 sell, 4 Green (Iowa), 26, 29; Maguire v. 
 V. Maguire, 7 Dana (Ky.), 181, 189; 
 Chase v. Chase, 55 Me. 2i, 23; Keerl v. 
 Keerl, 34 Md. 2i, 25; Crane v. Megin- 
 nis, I G. & J. (Md.) 463, 474; Graves v. 
 Graves, 108 Mass. 314, 317 ; Crews v. 
 Mooney, 74 Mo. 26, 29; Waters w. 
 Waters, 49 Mo. 385, 387; Sheafe v. 
 Sheafe, 24 N. H. 564. 567 ; Calame v. 
 Calame, 25 N. J. Eq. 548; Miller v. Mil- 
 ler, 75 N. Car. 70; Cox v. Cox, 19 Ohio 
 St. 502, 512; Francis ». Francis, 31 Gratt. 
 (Va.) 283; Bailey v. Bailey, 21 Gratt. Va. 
 43. 571 Campbell v. Campbell, 37 Wis. 
 206, 212; Taylor v. Taylor, 93 N. Car. 
 418; Sanchez v. Sanchez, 21 Fla. 346. See 
 also.Cal. Civ. Code, 1880, § 137, and Ga. 
 Code, 1882, § 1736. 
 
 1. McGee v. McGee, 10 Ga. 477, 487, 
 in which the court said that the principle 
 was sustained by an invincible array of 
 authorities, many of which it cites. See 
 also Fischli v. Fischli, i Blackf. (Ind.) 
 360, 365; Lawson v. Shotwell, 27 Miss. 
 630; Chaires v. Chaires, 10 Fla. 308. 
 
 2. 2 Bish. on M. & D. § 381, also § 
 169, 170, c. See also Prosser v. War- 
 ner, 47 Vt. 667; Lytle V. Lytle, 48 Ind. 
 200; Middlew'orth v. M'Dowell, 49 Ind. 
 3«6. 
 
 3. Sanford v. Sanford, 5 Day (Conn.), 
 353, 358; Beard v. Beard, 21 Ind. 321; 
 Nichols V. Nichols, 10 C. E. Green (N. J.), 
 60; Lytle V. Lytle,\48 Ind. 200, 202; Mad- 
 den V. Fielding, 19 La. Ann. 505; Ellison 
 V. Martin, 53 Mo. ^75, 578; Gould v. 
 Crow, 57 Mo. 200; Leifh v. Leith, 39 N. 
 H. 20, 39; Jackson v. Jackson, i Johns. 
 (N. Y.) 424; Prosser v. Warner, 47 Vt. 
 667i 673. and cases there cited; and see 
 Turner v. Turner, 44 Ala. 437, 451; 
 Thompson v. State, 28 Ala. 12, 17. 
 
 If defendant domiciled in another 
 State appears by attorney, alimony may 
 
 be decreed against him. Sanford v. San- 
 ford, 5 Day (Conn.), 353. 
 
 And if defendant is domiciled in the 
 State, by statute in Indiana alimony 
 may be granted on constuctive notice. 
 Beard v. Beard, 21 Ind. 321; and see 
 Cook V. Cook, 56 Wis. 195. 
 
 If husband domiciled elsewhere has 
 property in the State where the wife 
 lives, the court will, under certain circum- 
 stances, grant her a divorce from bed and 
 board and alimony to the extent of the 
 property. For principle see i Bishop on 
 M. & D.' § 156. But not where neither 
 party is domiciled where the property is 
 situated. Keerl v. Keerl, 34 Md. 21, 26. 
 
 4. 2 Bish. on M. & D. § 170, b; Rogers 
 V. Rogers, 15 B. Mon. (Ky). 364. And for 
 cases in which it was held that the court 
 would decree alimony to a wife, who had 
 previously obtained a decree of divorce 
 without alimony, see Cox v. Cox, ig 
 Ohio St. 502. 512; Stilphen v. Stilphen, 
 58 Me. 508; Nichols v. Nichols, 10 C. E. 
 Green (N. J.), 60. 
 
 A decree of divorce a vinculo fraudu- 
 lently obtained in one State will not bar 
 alimony properly decreed in another. 
 Barber v. Barber, 21 How. (U. S.) 582. 
 
 5. Borden v. Fitch, 15 Johns. (N. Y.) 
 121 ; Rogers v. Rogers, 15 B. Mon. 
 (Ky.) 364; and see contra. Barber v. Bar- 
 ber, I Chand. (Wis.) 280; Harrison v. 
 Harrison, 20 Ala. 629. 
 
 Where a decree of divorce and alimony 
 was obtained by publication in Ohio, 
 neither party residing there, the decree, so 
 far at least as the alimony was concerned, 
 was void in New York. Phelps v. Baker, 
 60 Barb. (N. Y.) 107. 
 
 6. Barber v. Barber, 21 How. (U. S.) 
 582, 591. See Cheever v. Wilson, 9 
 Wal. (U. S.) 108, 124; Bennett v. Ben- 
 nett. Deady (U. S.), 299; and see i Bish. 
 on M. & D. 128, a. 
 
Sources of the Law. ALIMONY. Sources of tlie Law.' 
 
 divorce, much less alimony ; the latter being an action in perso- 
 nam.}- 
 
 The legislature in granting a divorce cannot give alimony,** but 
 the jurisdiction to do so has been given by statute, or assumed by 
 the courts in some States.* 
 
 3. Sources of the Law. — From the time of the decision of Foliamb's 
 case (44 Eliz.) until the divorce act of 20 and 21 Vict. c. 85, no ab- 
 solute divorce could be judicially granted in England. The only 
 legal separation recognized was a divorce from bed and board upon) 
 the decree of the Ecclesiastical Court.* These courts as an in- 
 cident to the decree also granted alimony — pendente lite and per- 
 manent*' — but only as a part of the decree a inensa et tkoro.^ This 
 alimony was obtained by presenting a petition stating the facul- 
 ties of the husband' — if for temporary alimony, at any time after 
 suit begun ;® if for permanent alimony, at any time after the wife's 
 right to the divorce was determined, and before judgment,® or 
 even after judgment.^* 
 
 Alimony, therefore, under the English law had no independent 
 existence, and could only be grafted as an incident to some other 
 legal proceeding, and no court, not even the Ecclesiastical, could 
 grant it if it was the only relief sought.*^ This doctrine was 
 adopted and followed in many States of this country.^* But in 
 some of these, statutes now provide for the wife's maintenance by 
 the husband where without her fault she is separated from him. 
 This is in the nature of alimony, but is usually termed mainte- 
 nance.*' Before the statutes were passed in some States, and in 
 
 1. I Bish. on M. & D. § 201, note. 9. 2 Bish. on M. & D. § 488; Covellw.. 
 Compare ■•Kith §§ 169, 170. c. ' Covell, L. R. 2 P. & D. 411; Cooke v. 
 
 2. I Bish. on M. & D. § 693, and cases Cooke, 2 Phillim. 40. 
 
 there cited. 10. Westmeathz/.Westmeath, 3 Knapp, 
 
 3. In Maryland, where the divorce was 42. 
 
 a OTfwJd ^/ Mero, the wife was allowed ali- IX. 2 Bish. on M. & D. § 351, and 
 
 mony by the court. Crane v. Meginnis, cases there cited. 
 
 iGill & J. (Md.)463, 475. And in Tenne- 12. Bowman v. Worthington, 24 Ark. 
 
 see, the act gives this right to the wife. 522, 537; Moore v. Moore, 18 La. Ann. 
 
 Richardson v. Wilson, 8 Yerg. (Tenn.) 613; Heyob v. Heyob, 18 La. Ann. 41; 
 
 67. 77; and perhaps in other cases. See Adams v. Adams, 100 Mass. 365, 369;. 
 
 2 Bish M. & D. § 382. Peltier v. Peltier, Har. (Mich.) 19. 30; 
 
 4. Foliamb's Case, 3 Salk. 138; i Eng. De Graw v. De Graw, 7 Mo. App. 121, 
 Law Review, 353; Macq. Pari. Pract. 133; Parsons v. Parsons, 9 N. H. 309, 
 470 n. ; 2 Bish. on M, & D. §§ 661, 662, 317. As to New York, see R. S. 147, ^ 
 705. Marriages, however, might be de- 55; Ruckman v. Ruckman, 58 How. Pr. 
 clared null or void for certain causes. 2 (N. Y.) 278, 283; Davis v. Davis, 75 N. 
 Burn. Ecc. Law, 503. Y. 221, 225; Douglas v. Douglas, 5 Hun 
 
 5. Cooke V. Cooke, 2 Phillim. 40; Law- (N. Y.), 140; Pomeroy v. Wells, 8 Paige 
 son V. Shotwell, 27 Miss. 630, 633; Head (N.Y.), 406. And as to Pennsylvania, see 
 V. Head, 3 Atk. 295; Rees v. Waters, 9 Rees w. Waters, 9 Watts (Pa.), go, 93;. 
 Watts (Pa.), 90, 93. Yohe v. Barnet, I Binn. (Pa.) 365. 
 
 6. Ball V. Montgomery, 2Ves.,Jr. 191, 13. 111. R. S. 1880, p. 594, § 23; Foss v. 
 195. Foss, 2 Iin App. 411, 412; Hunter v. 
 
 7. Rees w. Rees, 3 Phillim. 387; Cox Hunter, 7 111. App. 253; Angelo v. An- 
 V. Cox, 3 Add. Ec. 276. gelo, 81 111. 251; Ind. R. S. 1882, §§5132- 
 
 8. Smyth v. Smyth, 2 Add. Ec. 254; 5141; Stanbrough v. Stanbrough, 60 Ind. 
 Deane v. Deane, 28 Law Jour. Mat. Cas. 275, 280; Chapman v. Chapman, 13 Ind. 
 23, 24; Tomkins v. Tomkins, i Swab 396 ; Fischli v. Fischli, i Blackf. 360;: 
 & T. 163. Md. Rev. Code, 1878, art. 51, § 17, p- 
 
 I C. of L.— 31 469 
 
Sources of the Law. 
 
 ALIMONY. 
 
 Sources of the Law, 
 
 others where there is no statutory provision, the courts held that 
 it is one of the ordinary equitable powers of a chancellor to grant 
 •alimony without a divorce ; entertaining it as an original bill.^ 
 
 In those States in which jurisdiction is given to the courts to 
 decree this maintenance, the statute which grants the power 
 usually defines the circumstances under which the court may 
 grant it.* But in those States in which the court assumes the 
 jurisdiction as one of its equitable powers, the circumstances that 
 must exist to entitle the wife are not so clearly defined. Deser- 
 tion, leaving wife without means, is a sufficient cause.^ But mere 
 abandonment has been held insufficient,* Cruelty is another 
 cause, but generally it must be sufficient to entitle the wife to a 
 decree a inensa et thoro.^ The wife must show rectitude of con- 
 
 481; Keerl v. Keerl, 34 Md. 21, 25; 
 Helms V. Franciscus, 2 Bland. (Md.) 
 544, 565; Farnshill v. Murray, i Bland. 
 479, 483; Jamison v. Jamison, 4 Md. Ch. 
 289, 295 ; Dunnock v. Dunnock, 3 Md. 
 Ch. 140, 143; Crane v. Meginnis, i Gill. 
 & J. (Md.) 463, 475; Galwith v. Gal with, 
 4 H. & McH. (Md.) 477; Wright v. 
 Wright, 2 Md. 429; N. J. Rev. 1877, p. 
 318; Miller w. Miller, i N. J. Eq. 386, 
 389; Yule V. Yule,' 10 N. J. Eq. 138, 145; 
 Cory V. Cory, 11 N. J. Eq. 400; Anshutz 
 V. Anshutz, 16 N. J. Eq. 162; Van 
 Arsdalen v. Van Arsdalen, 30 N. J. Eq. 
 359; Nicely v. Nicely, 3 Head (Tenn.), 
 1S4; Richardson v. Wilson, 8 Yerg. 
 (Tenn.) 67, 77; N. H. Gen. Laws, 1878, 
 chap. 183, § 3; Mass. Public Statutes, 
 1882, chap. 14/7, § 33; Mich. Annotated 
 Statutes 1882, § 6291; Laws 1885, § 149; 
 Kan. Compiled Laws 1879, chap. 80, § 
 649; N. C. Code 1B83, I 1292 ; Mo. 
 Rev. Stat. 1879, § 3283; Cal. Hittell's 
 Code 1876, amendment § 5137 ; Wy. 
 Laws 1882, chap. 40, § 18; Ga. Code, 
 1882, §§ 1744, 1746, 1747. As to 
 Canada, see Severn v. Severn, 3 U. C. 
 Chan. 431, 432; Soules v. Soules, 2 U. 
 C. Chan. 299, 300. 
 
 1. Glover v. Glover, 16 Ala. 440, 447; 
 Wray v. Wray, 33 Ala. 187; Kinsey v. 
 Kinsey, 37 Ala. 393. By a majority of the 
 tourt in Galland v. Galland, 38 Cal. 265, 
 272; Graves v. Graves, 36 Iowa, 310, 
 313; Butler V. Butler, 4 Litt. Ky. 201, 
 203; Griffin v. Griffin. 8 B. Mon. (Ky.) 
 120, 121; Gaines v. Gaines, g B. Mon, 
 (Ky.) 295, 299; Logan v. Logan, 2 B. 
 Mon. (Ky.) 142; Lockridgew. Lockridge, 
 3 Dana (Ky.), 28; Boggess w.-Boggess, 4 
 Dana (Ky.), 307; Garland v. Garland, 50 
 -Miss. 694, 716; Shotwell v. Shotwell, 27 
 Miss. 630; V-erner v. Verner, 62 Miss. 
 260; Wallingsford v. Wallingsford, 6 H. 
 & J. (Md.) 485, 488; McNamara's case, 2 
 Bland. (Md.) 566, note; Anon., i Hayw. 
 
 (N. Car.) 347; Spiller v. Spiller, i Hayw. 
 (N. Car.) 482; Knight v. Knight, 2 Hayw. 
 (N. Car.) loi; Bascom v. Bascom, Wright 
 (Ohio), 632; Questel v. Questel, Wright 
 (Ohio), 491; D'Arusmont v. D'Arusmont, 
 4 Law Rep. N. S. 311, 321; Jelineau v. 
 Jelineau, 2 Desau. Eq. (S. Car.) 45, 50; 
 Anon., 2 Desau. Eq. (S. Car.) 198, 207; 
 Prather v. Prather, 4 Desau. Eq. (S. Car.) 
 33, 43; Rhame v. Rhame, i McCord(S. 
 Car.), 197, 205; Mattison v. Mattison, i 
 Strob. Eq. (S. Car.) 387; Prince z;. Prince, 
 I Rich. Eq. (S. Car.) 282, 287; Converse_ 
 V. Converse,9 Rich. Eq. (S. Car.) 535, 570;' • 
 Hair v. Hair, 10 Rich Eq. (S. Car.) 163, 
 172, 176. Perhaps Texas: Stringfellow v. 
 Stringfellow, 30 Tex. 570. And see, as to 
 Va., Almond v. Almond, 4 Rand. (Va.) 
 662, 667; Purcell V. Purcell, 4 H. & M. 
 (Va.) 507, 511; Carr v. Carr, 22 Gratt. 
 (Va.) 168, 173. 
 
 2. For instance, for any of the causes 
 of divorce, the husband being guilty: 
 N. H. and Kan. Husband deserting 
 for one year: Cal. Or is a drunkard 
 or spendthrift: N. Car. Or is convicted 
 of crime and imprisoned: N. H. and 
 Ind. . 
 
 3. Prince v. Prince, i Rich. Eq. (S. 
 Car.) 282; Purcell v. Purcell, 4 H. & M. 
 (Va.) 507; Hair v. Hair, 10 Rich. Eq. (S. 
 Car.) 163; Prather v. Prather, 4 Desau. 
 Eq. (S. Car.) 33; Wiles z'. Wiles, 3 Mo. i; 
 Jamison v. Jamison, 4 Md. Ch. 289; But- 
 ler I/. Butler, 4 Litt. (Ky.) 205; and see 
 Battey v. Battey, I R. I. 212; Gray v. 
 Gray, 65 Ga. 193. 
 
 4. Logan v. Logan, 2 B. Mon. (Ky.) 
 142. See, contra. Glover v. Glover, 16 
 Ala. 440, 447; and see Butler v. Butler, 
 4 Litt. (Ky.) 205; 2 Bish. on M. & D. 
 
 §§ 355> 357- 
 
 5. Taylor v. Taylor, 4 Desau. (S. Car.) 
 167; Jelineau v. Jelineau, 2 Desau. (S. 
 Car.) 45; Anon., 4 Desau. (S. Car.) 94; 
 Hairz/. Hair, 10 Rich. Eq. (S. Car.) 163; 
 
 470 
 
Sources of the Lav7. 
 
 ALIMONY. 
 
 Sources of the Law, 
 
 duct on her part, if complaining of the ill conduct of her hus- 
 band. ^ She need not, however, be entirely blameless.'-* 
 
 The court should only decree maintenance when the same 
 causes exist as were required by the ecclesiastical courts to grant 
 a divorce a mensa et thoro, or a restitution of conjugal rights.* It 
 has been decreed, however, on slighter grounds.* As in the case 
 of alimony, the court will not decree maintenance to a wife who 
 has sufficient separate property for her needs.^ In general, the 
 practice and procedure is analogous to that in suits for alimony 
 with divorce. They must be living apart.® The court must de- 
 cree a periodical allowance and not specific property,'' unless 
 authorized by statute. And it has been affirmed* and denied* 
 that alimony /^«^i?«^^ lite can be allowed during the suit. 
 
 Bascomi'. Bascom, Wright (Ohio), 632; 
 Almonds. Alrr.ond, 4 Rand. (Va.) 662; 
 Lockridge v. Lockridge, 3 Dana(Ky.), 28; 
 Glover v. Glover, 16 Ala. 440; i Bish. on 
 M. & D. § 719, note. See N. J. Rev. 318, 
 §20; Vanarsdalen i/.Vanarsdalen, 3 Stew. 
 Ch. (N. J.) 359; Cray v. Cray, 5 Stew. 
 Ch. (N. J.) 25. 
 
 1. Anon., 4 Desau. (S. Car.) 94; Bedell 
 V. Bedell, i Johns. Ch. (N. Y.) 604; Wat- 
 kyns V. Watkyns, 2 Atk. 96; i Bish. on 
 M. & D. § 764; Boggess v. Boggess, 4 
 Dana (Ky.), 307; Angelo v. Angelo, 81 
 111. 251; Wahle w. Wahle, 71 111. 510; 
 Slack !<. Slack, Dudley (Ga.), 165; Carr v. 
 Carr, 22 Gratt. (Va.) 168, 173. 
 
 And if the judgment is for the husband 
 for separation for fault of the wife, the 
 court cannot grant allowance. Waring v. 
 Waring, 100 N. Y. 570. 
 
 2. Griffin v. Griffin, 8 B. Mon. (Ky.) 
 120. 
 
 , As to other causes held sufficient to 
 entitle wife, see Graves v. Graves, 36 
 Iowa, 310. 
 
 3. Rhame v. Rhame, i McCord Ch. 
 (S. Car.) 197; Hair v. Hair, 10 Rich. Eq. 
 (S. Car.) 163; Helms v. Franciscus, 2 
 Bland (Md.), 544; 2 Bish. on M. cS: D. 
 
 §§ 355. 357. 
 
 And where, on account of a fault of her 
 husband which would entitle her to a 
 divorce, the wife leaves him and lives 
 apart, the court may grant her mainte- 
 nance, without divorce, suitable to her 
 status in life. Plainer v. Platner, 65 
 Iowa, 378. 
 
 4. Boggess V. Boggess, 4 Dana (Ky.), 
 307, 309; Cray v. Cray, 32 N. J. Eq. 25, 27. 
 
 Yet adultery alone has been held in- 
 sufficient if the husband offered to co- 
 
 5. Converse v. Converse, 9 Rich. Eq. 
 (S. Car.) 538. See post, p. 485. 
 
 The husband's duty to support the wife 
 is not altered if she become insane, 
 Wray v. Wray, 33 Ala. 187. 
 
 Or if they are living apart under arti. 
 cles of separation which make no provi- 
 sion for the wife. Miller v. Miller, i N. 
 J. Eq. 386, 390; Moores v. Moores, 16 
 N. J. Eq. 276; Head v. Head, 3 Atk. 
 547; Almond v. Almond, 4 Rand. (Va.) 
 662. 
 
 6. Anshutz v. Anshutz, 16 N. J. Eq. 
 162; Burris v. Burns, 60 Ind. 259; Head 
 V. Head, 3 Atk. 547; Miller v. Miller, i 
 N. J. Eq. 386, 390; Almond v. Almond, 
 4 Rand. (Va.) 662, 667; Babbitt v. Bab- 
 bitt, 69 111. 277. 
 
 7. Almond v. Almond, 4 Rand. (Va.) 
 662; Purcell V. Purcell, 4 H. & M. (Va.) 
 507; Wallingsford v. Wallingsford, 6 H. 
 & J. (Md.)485. 
 
 8. Vreeland v. Vreeland, 18 N. J. Eq. 
 43, 44; Verner v. Verner, 62 Miss. 260. 
 See Porter v. Porter, 41 Miss. 116. 
 
 9. Foss V. Foss, 2 111, App. 411, 
 413- 
 
 And on general subject of maintenance 
 where husband refuses to support wife, 
 see Fellows v. Fellows, 8 N. H. 160, 162; 
 Beavan v. Beavan, 2 Swab & T. 652; 
 Fletcher v. Fletcher, 2 Swab & T. 434; 
 Gayner v. Gayner, 31 L. J. Mat. Cas. 
 144; Brown v. Brown, 3 Swab & T. 217; 
 Capstick V. Capstick, 33 L. J. Mat. Cas. 
 105 ; Coombs v. Coombs, L. R. i P. & D. 
 218; Moss V. Moss, 15 Week. R. 532; 
 Washburn v. Washburn, 9 Cal. 475; De- 
 voe V. Devoe, 51 Cal. 543; Holt v. Holt, 
 117 Mass. 202; Harteau v. Harteau, 14 
 Pick. (Mass.) 181; F. v. F., i N. H. 198; 
 
 habit with and treat the wife well! , James w. James, 58 N. H. 266; Davis v. 
 Prather v. Prather, 4 Desau. (S. Car.) 33, Davis, 37 N. H. 191; Prince v. Prince, i 
 43; 2 Bish. on M. & D., § 361, note. Rich.' Eq. (S. Car.) 282, 290; Battey v. 
 See, contra, Sykes v. Halstead, i Sanf. Battey, i R. I. 212, 217; Keeler v. 
 (N. Y.) 483. Keeler, 24 Wis. 522. 
 
 471 
 
Pendente Lite. 
 
 ALIMONY. 
 
 Pendente Lite. 
 
 Alimony in divorce suits is now regulated in England and in 
 most of the United States by statutes.^ 
 
 4. Alimony Pendente Lite is that alimony decreed to the wife 
 during the pendency of the suit.* This is also regulated by 
 statute in most of the States, usually declaratory of the common 
 law.* The mere pendency of the suit where the wife has no 
 separate means adequate to her support, and the husband has the 
 means, entitles her, whether plaintiff or defendant, to alimony so 
 long as the litigation continues.* 
 
 As regards the marriage which must exist to entitle the wife 
 to a decree for temporary alimony — as the merits are not gone 
 into,^ the court will be justified in granting the decree if the 
 parties had lived together and adjusted their property-rights on 
 the basis of the validity of the marriage.® So ^Y\iXior\y pendente 
 lite has been allowed in nullity suits,'' and also where the wife 
 alleges and the husband denies a marriage,** though not where the 
 wife is complainant and asserts, or is defendant and admits, the 
 invalidity of the marriage.' 
 
 A suit must be pending either for divorce or separation.^" If 
 the wife is complainant the husband must have been properly 
 brought into court, until which time the court has no jurisdiction, 
 as no suit is pending.^ 
 
 1. See Stewart on M. & D. (Ed. 1884) 
 § 364, where references are given to the 
 statutes and to cases under them. See 
 Stimson's American' Statute Law, § 6261 
 (A). The statutes, however, are not com- 
 plete nor exhaustive, but have frequently 
 to be supplemented by the ecclesiastical 
 and unwritten law. Goldsmith v. Gold- 
 smith, 6 Mich. 285, 286; McGee v. Mc- 
 Gee, 10 Ga. 478, 485; Petrie v. People, 
 40 111. 334', 342; Grove v. Grove, 68 Pa. 
 St. 143, 145; Le Barron v. Le Barron, 35 
 Vt. 365, 367; Harris v. Harris, 31 Gratt. 
 (Va.) 13, 17. 
 
 2. 2 Bish. on M. & D. § 351. 
 
 8. Stimson's American Statute Law, 
 § 6264. There are some changes, how- 
 ever, as, for instance, allowing alimony 
 pendente lite to the husband under cer- 
 tain circumstances as well as to the wife, 
 as in Iowa Wisconsin, and Georgia. 
 
 4. 2 Bish. on M. & D. § 384; McGee 
 V. McGee, 10 Ga. 477; Jones v. Jones, 2 
 Barb. Ch. (N. Y.) 146; Story v. Story, 
 Walk. (Mich.) 421; Shelton M. & D. 
 533. 586; Breenig v. Breenig, 2 Casey, 
 161. And see Halleman v. Halleman, 
 6g Ga 676. 
 
 5 Little V. Little, 63 N. Car. 22, 24; 
 McGee z/. McGee, 10 Ga. 478, 489; Story 
 V. Story, Walk. Ch. (Mich.) 421, 422. 
 
 6. 2 Bish. on M. & D. §402. See also, 
 as to whether by contract or celebration, 
 Vreeland v. Vreeland, 18 N. J. Eq. 43, 
 45; Brinkley v, Brinkley, 50 N. Y. 184; 
 
 McFarland v. McFarland, 51 Iowa, 565, 
 570; North V. North, i Barb. Ch. (N. Y.> 
 241; Humphreys v. Humphreys, 4g How. 
 Pr. (N. Y.) 140; Herforth v. Herforth, 2 
 Abb. Pr. N. S. (N. Y.) 483, 489. See also 
 Smith V. Smith, 61 Iowa, 138. 
 
 7. Bird v. Bird, i Lee, 621; Miles v. 
 Chilton, I Rob. Ecc. 684, 693; Vandegrift 
 V. Vandegrift, 30 N. J. Eq. 76; Griffin v. 
 Griffin, 47 N. Y. 134; North v. North, i 
 Barb. Ch. (N. Y.) 241. 
 
 8. Smith V. Smith, i Edw. Ch. (N. Y.> 
 255. 
 
 9. Griffin v. Griffin, 47 N. Y. 134; 
 North V. North, i Barb. Ch. (N. Y.) 241. 
 And see Bartlett v. Bartlett, Clarke Ch. 
 (N. Y.) 460; Bloodgood v. Bloodgood, 59- 
 How. Pr. (N. Y.) 27, 42. 
 
 10. Usually so provided by the statutes; 
 but see cases where alimony allowed 
 though suit not for divorce or separation. 
 Head v. Head, 3 Atk. (Eng.) 2g5;Yeo- 
 V. Yeo, 2 Dick. (Eng.) 498; Dickinson v. 
 Mavil, 2 Dick. (Eng.) 582; D'Arusmont v. 
 D'Arusmont, 8 West. Law. J. 548. 
 
 11. Deane v. Deane, 28 L. J. Mat. Cas. 
 23, 24; Tomkins v. Tomkins, i Swab & 
 T. 163, 164; Holland v. Holland, 4 Houst. 
 (Del.) 86; Lytle v. Lytle, 28 Ind. 200, 202;, 
 Madden v. Fielding, 19 La. Ann. 505, 
 506; Russell V. Russell, 69 Me. 336, 338;. 
 Ellison V. Martin, 53 Mo. 575, 578; Sim- 
 mons V. Simmons, Phillips . Eq. (N. 
 Car.) 63; Cox v. Cox, 19 Ohio St. 502, 
 511; Weishauptw. Weishaupt, 27 Wis. 621; 
 
 472 
 
Pendente Lite. 
 
 ALIMONY. 
 
 Pendente Lite. 
 
 After the husband is summoned, and until the suit has been 
 dismissed or a final decree has been entered, the wife may at any 
 time apply for and the court decree temporary alimony.^ After 
 final decree it is too late.* So if the suit has been dismissed.* 
 
 During the pendency of the suit the wife must be living separate 
 from her husband.* If they are living together the allowance 
 would be improper.* 
 
 If the wife has means sufficient to maintain her in the rank of 
 life to which she is accustomed, no temporary alimony will be 
 granted her.* If the husband is destitute and the wife is com- 
 plainant neither suit-money nor temporary alimony will be 
 decreed.'' On the other hand, if the husband is complainant and 
 destitute the court may suspend the suit until some provision is 
 made for the wife,* and if he cannot give her the means to defend 
 herself he cannot have a divorce.' 
 
 The wife's application for alimony pendente lite must show 
 
 and on constructive notice see Beard v. 
 Beard, 21 Ind. 321. 
 
 1. It may be made on final hearing. 
 Bennett v. Southard, 35 Cal. 688, 691; 
 McGee v. McGee, 10 Ga. 477, 489; Dinet 
 ■V. Pfirshing, 86 III. 83; Pritchard v. 
 Pritchard, 4 Abb. N. C. (N. Y.) 298: Shy 
 V. Shy, 7 Heisk. (Tenn.) 125; 2 Bish. on 
 M. & D. § 488. 
 
 2. Newman v. Newman, 6g III. 167, 
 169; Wilde V. Wilde, 2 Nev. 306, 308. 
 
 5. Chestnut v. Chestnut, 77 III. 346; 
 Howell V. Howell, 39 Ind. 185; Waters 
 •u. Waters, 49 Mo. 385; Persons v. Per- 
 sons, 7 Humph. (Tenn.) 183, 184. 
 
 Counsel fees are sometimes taxed with 
 the costs and allowed on final decree. 
 Weaver v. Weaver, 33 Ga. 172; Howell 
 ■u. Howell, 39 Ind. 185; Thorndike v. 
 Thorndike, i Wash. Ter. 175. See, how- 
 ever, Thompson v. Thompson, 3 Head. 
 (Tenn.), 527. 
 
 4. Battey v. Battey, I R. I. 212; Chap- 
 man V. Chapman, 25 N. J. Eq. 394; 
 Brown v. Smith, 83 111. 291; Pincard v. 
 Pincard, 22 Ga. 31; Sykes v. Halstead, 
 I Sandf. (N. Y.) 483; Cooke v. Cooke, 2 
 Phillim. 40; Wallingsford v. Wallings- 
 iocd, 6 H. & J. (Md.) 485, 488; Keerl v. 
 Keerl, 34 Md. 21; Chase v. Chase, 55 Me. 
 2r; Crews v. Mooney, 74 Mo. 26; i 
 Bish. on M. & D. § 801; 2 Bish. on M. 
 & D. § 40. 
 
 But the mere offer of the husband in 
 his answer to receive his wife will not 
 destroy her right to proceed if the court 
 think that the husband is acting in bad 
 faith. Breinig v. Breinig, 2 Casey (Pa.), 
 i6r. 
 
 6. Tayman v. Tayman, 2 Md. Ch. 393, 
 397, 398; Anshutz v. Aijshutz, 16 N. J. 
 Eq. 162, and cases cited supra. 
 
 In the latter case, however, suit-money 
 might be allowed. Tayman v. Tayman, 
 2 Md. Ch. 393, 397. 
 
 6. 2 Bish. on M. & D. § 775; Furst v. 
 Furst, Poynter M. & D. 260, note, 261, 
 note; Fyler v. Fyler, Deane & S. 175; 
 Eaton V. Eaton, L. R. 2 P. & M. 51; 
 Kenemer v. Kenemer, 26 Ind. 330; Coad 
 V. Coad, 40 Wis. 392; Porter v. Porter, 
 41 Miss. 116. 
 
 Where her separate means are partly 
 adequate the court will compel the hus- 
 band to supply the deficiency; and so if 
 she can maintain herself but cannot pay 
 the expenses of the suit, the court will 
 decree her the amount of her expenses. 
 D'Aguilar v. D'Aguilar, i Hagg. Ec. 773; 
 Belcher v. Belcher, i Curt. Ec. 444; 
 Wilson V, Wilson, 2 Hagg. Con. 203; 
 Logan V. Logan, 2 B. Mon. (Ky.) 142; 
 Collins V. Collins, 2 Paige (N. Y.), 9; 
 Holmes v. Holmes, 2 Lee, go; Furst v. 
 Furst, Poynter M. & D. 260, note, 261, 
 note; Rose w. Rose, 11 Paige (N. Y.), 
 166; Beavan v. Beavan, 2 Swab & T. 
 652; and seeposl, notes 4, 5, p. 485, as to 
 wife's means. 
 
 7. Laurie w. Laurie, 9 Paige (N. Y.), 
 234; Kittle V. Kittle, 8 Daly (N. Y.), 72; 
 Thayer v, Thayer, 9 R. I. 377; Battey v. 
 Battey, i R. I. 212; Feigley v. Feigley, 
 7 Md. 537. 
 
 8. Purcell v. Purcell, 3 Edw. Ch. (N. 
 Y.) 194; Bruere v. Bruere, i Curt. Ec. 
 566 ; Walker v. Walker, i Curt. Ec. 
 560. 
 
 9. Purcell v. Purcell, 3 Edw. Ch. (N. 
 Y.) 194; Mangels v. Mangels, 6 Mo. 
 App. 481. See also Osgood v. Osgood, 
 2 Paige (N. Y.), 621; Cason v. Cason, 
 15 Ga. 405; Soules v. Soules, 3 Grant V. 
 C. Chan. 113. 
 
 473 
 
Pendente lite. 
 
 ALIMONY. 
 
 Pendente Lite. 
 
 merits, 1 and should be supported '■* by her own affidavit ^ or that 
 of others.* It ought to allege a marriage,^ separation,® pendency 
 of a suit,' her need,* and the husband's faculties.^ The husband 
 if defendant may present affidavits as to his wife's means and 
 his faculties,^" but not, it seems, if complainant. ^ 
 
 The alimony pendente lite usually is made up of a sum to sup'- 
 port the wife •^'^ to pay her counsel fees^^ and the expenses of the 
 
 1. Though only a prima-facie case is 
 required. Warden v. Warden, 3 Edw. 
 Ch. (N. Y.)387; Ballentinei'. Ballentine, 
 
 1 Halst. Ch, N. J. 471; Jones v. Jones, 
 
 2 Barb. Ch. (N. Y) 146; Krause v. 
 Krause. 23 Wis. 354; Boubon v. Boubon, 
 
 3 Rob. (N. Y.) 715; Walling v. Walling, 
 I C. E. Green (N. J.), 389; Weishaupt 
 V. Weishaupt, 27 Wis. 621; Countz v. 
 Countz, 30 Ark. 73, 78; Phelan v. Phelan, 
 12 Fla. 449, 455; McGee v. McGee, 10 
 Ga. 478; Harrell v. Harrell, 39 Ind. 185, 
 189; Chaffee v. Chaffee, 14 Mich. 463; 
 Porter z/. Porter, 41 Miss. 116; Kennedy 
 V. Kennedy, 73 N. Y. 369; Sparks v. 
 Sparks, 6g N. Car. 319; Ward v. Ward, 
 
 1 Tenn. Ch. 262; Lishey v. Lishey, 2 
 Tenn. Ch. i. 
 
 If the bill is bad on demurrer no 
 allowance is granted. Rose v. Rose, 
 II Paige (N. Y.), i66; Wood v. Wood, 
 
 2 Paige (N. Y.), 454; s. c, 8 Wend. (N. 
 Y.) 357; but see Robertson v. Robert- 
 son, I Edw. Ch. (N. Y.) 360; D'Arus- 
 mont V. D'Arusmont, 14 Law Rep. 
 (Ohio) 311; Coles v. Coles, 2 Md. Ch. 
 341; Chaffee v. Chaffee, 14 Mich. 463; 2 
 Bish. on M. & D. § 402. 
 
 2. See Countz v. Countz, 30 Ark. 73, 
 79; McGee v. McGee, 8 Ga. 295; Bayly 
 V. Bayly, 2 Md. Ch. 326. 331; Vande- 
 grift V. Vandegrift, 30 N. J. Eq. 76; 
 Glasser u. Glasser, 28 N. J. Eq. 22; 
 Wright V. Wright, i Edw. Ch. (N. Y.) 
 62, 63; Kock V. Kock, 42 Barb. (N. Y.) 
 515; Edwards v. Edwards, Wright (Ohio), 
 308, 309; Wright V. Wright, 3 Tex. 
 168. 
 
 3. Schonwald v. Schonwald. Phillips 
 Eq. (N. Car.) 215; Glenn v. Glenn, 44 
 Ark. 46. See also Bayly v. Bayly, 2 Md. 
 Ch. 326, 331. 
 
 In New Jersey the court sometimes re- 
 quires affidavits from both sides. Dough- 
 erty V. Dougherty, 4 Halst. Ch. (N. J.) 
 540; Martin v, Martin, 4 Halst. Ch. (N. 
 J.) S^Sl ^'^^ 5^^ Vandegrift v. Vandegrift, 
 3 Stew. Ch. (N. J.) 76. See also Countz 
 V Countz. 30 Aric. 73; Monk v. Monk, g 
 Rob. (N. Y.) 153. 
 
 And in some States the wife to ob- 
 tain alimony pendente lite must deny the 
 husband's charge of adultery under oath. 
 See 2 Bish. on M. & D. §409. 
 
 4. Brinkley v. Brinkley, 50 N. Yi 
 184. 
 
 5. Swearingen z;. Swearingen, 19 Ga; 
 295; Frith V. Frith, 18 Ga. 272. See 
 ante, notes 5 and 6, p., 472. 1 
 
 In an action for divorce, temporary alir 
 mony should not be allowed unless the 
 marriage is proved or admitted; but 
 where the testinuony of the parties pra 
 and con as to the marriage is in equipoise 
 and a disinterested witness proves the 
 ceremony, . this is sufficient to grant 
 temporary alimony. Smith v. Smith, 61 
 Iowa, 138. 
 
 6. See ante, note 4, p. 473. 
 
 7. See ante, notes 10, 11, p. 472. 
 
 8. Methvin ii. Methvin, 15 Ga. 97; 
 Coles v. Coles, 2 Md. Ch. 341; Story v. 
 Story, Walk. Ch. (Mich.) 421; Ross v. 
 Ross, 47 Mich. 185; Coad v._ Coad, 40 
 Wis. 392. See ante, note 6, p. 473. 
 
 9. Mitchell v. Mitchell, i Spinks, 102; 
 Ross V. Ross, 47 Mich. 185; Lovett v. 
 Lovett, II Ala. 763, 777; Warden v. 
 Warden, 3 Edw. Ch. (N. Y.) 387; Weis- 
 haupt J/. Weishaupt, 27 Wis. 621; Porter 
 V. Porter, 41 Miss. 116, 117. See post, 
 notes, etc., 6, 7, p. 485. 
 
 10. Wright V. Wright, i Edw. Ch. (N. 
 Y.) 62, 63; Story v. Story, Walk. Ch. 
 (Mich.) 421. 
 
 11. Mangels v. Mangels, 6 Mo. App. 
 481; and see Bird v. Bird, i Lee, 572; 
 See ante, note 8, p. 473. 
 
 12. Lovett V. Lovett, 11 Ala. 763; 
 McGee v. McGee, 10 Ga. 477; Coles v. 
 Coles, 2 Md. Ch. 341; Mangels v. Man- 
 gels, 6 Mo. App. 481; Porter v. Porter, 
 41 Miss. 116; Weishaupt v. Weishaupt, 
 27 Wis. 621. 
 
 13. Cooke V. Newell, 40 Conn. 596; 
 Sprayberry w. Merk, 30 Ga. 81; Glenn v. 
 Hill, 50 Ga. 94; Day v. Eyster, 79 111. 
 254; Williams v. Monroe, 18 B. Mon. 
 (Ky.) 514; Ricketts v. Ricketts, 4 Gill. 
 (Md.) 105; Ray v. Adden, 50 N. H. 82; 
 Dorsey.w. Goodenow, Wright (Ohio), 120; 
 Wing J/. Hulburt, 15 Vt. 607; Dumnerw. 
 Dumner, 54 Wis. 642. 
 
 ' The English doctrine of wife's . lawyer 
 in divorce suits recovering his fees from 
 the husband is fully stated and com- 
 mented on in 2. Bish. on M. & D. § 388. 
 This doctrine is adopted in some of the 
 
 474 
 
Pendente Lite, 
 
 ALIMONY. 
 
 Pendente Lite, 
 
 suit.* And this the court will award upon having the necessary 
 facts presented to it almost as a matter of course,* despite a plea 
 to the merits,* or even to the jurisdiction.* 
 
 The court, however, will not grant alimony pendente lite if it 
 appears that there was no marriage,^ or if the wife admits guilt,® 
 or is greatly at fault,' or does not make out cause in her bill,* or 
 is acting in bad faith,* or if the husband is" insane,*" and, of course, 
 if he does not appear.** 
 
 It may be granted by the lower court,** or by the appellate 
 court pending an appeal,** and even after verdict against wife, if 
 the cause has not yet had final hearing.** The award is a matter 
 
 U. S. Sprayberry v. Merk, 30 Ga. 81; 
 Glenn V. Hill, 50 Ga. 94; and see cases 
 supra. But is denied in others. Morrison 
 V. Holt, 42 N. H. 478; Ray v. Adden, 50 
 N. H. 82; 2 BIsh. on M. & D § 388. 
 
 The usual rule being to grant it to the 
 wife or tax it with the costs. See Weaver 
 V. Weaver, 33 Ga. 172; Howell v. Howell, 
 185; Thorndike v. Thorndike, I Wash. 
 Ter. 198. See, however, Thompson v. 
 Thompson, 3 Head. 527, 529. 
 
 1. D'Aguilarz/. D'Aguilar, i Hagg. Ec. 
 773; Belcher v. Belcher, i Curt. Ec. 444; 
 Holmes v. Holmes, 2 Lee, 90; Fitzgerald 
 V. Fitzgerald, i Lee, 572; Collins v. 
 Collins, 29 Ga. 517; Walton v. Walton, 
 38 Ind. 228; Call V. Call, 65 Me. 407, 
 409; Daiger v. Daiger, 2 Md. Ch. 335; 
 Coles V. Coles, 2 Md. Ch. 341; Tayman 
 V. Tayman, 2 Md. Ch. 393; Goldsmith z/. 
 Goldsmith, 6 Mich. 285; Mix v. Mix, i 
 Johns. Ch. (N. Y.) 108, no; North v. 
 North, I Barb. Ch. (N. Y.) 241; Kendall 
 V. Kendall, i Barb. Ch. (N. Y.) 610; 
 Smith V. Smith, 3 Oregon, 363; Graves 
 V. Coles, 19 Pa. St. 171; Waldron v. 
 Waldron, 55 Pa. St. 231; Thompson v. 
 Thompson, 3 Head. (Tenn.) 527; Moe v. 
 Moe, 39 Wis. 308. 
 
 2. Smith V. Smith, 2 Phillim. 158; 
 s. c, 4 Swab & T. 228; McGee v. 
 McGee, 10 Ga. 478; Frith v. Frith, 18 
 Ga. 272; Methvin v. Methvin, 15 Ga. 97; 
 Jenkins v. Jenkins, 91 111. 167; Foss v. 
 Foss, 100 111. 576; Coles w. Coles; 2 Md. 
 Ch. 341; Daiger v. Daiger, 2 Md. Ch. 
 335; Tayman v. Tayman, 2 Md. Ch. 393; 
 Story V. Story, Walk. Ch. (Mich.) 421; 
 Wright V. Wright, i Edw. Ch. (N. Y.) 62; 
 Hammond v. Hammond, Clarke (N. Y.). 
 151; Jones V. Jones, 2 Barb. Ch. (N. Y.) 
 142; Little V. Little, 63 N. Car. 22, 24; 
 Sparks v. Sparks. 69 N. Car. 319, 321; 
 Lishey v. Lishey, 2 Tenn. Ch. i, 2. 
 
 3. McGee v. McGee, 10 Ga. 478; Story 
 V. Story, Walk. Ch. (Mich.) 421; Mix v. 
 Mix, I Johns. Ch. (N. Y.) 108, no; Moe 
 V. Moe, 39 Wis. 308. 
 
 4. King V. King, 27 Ala. 387; Coles v. 
 
 Coles, 2 Md. Ch. 341, 347; Brinkley v. 
 Brinkley, 50 N. Y. 184. See also Ron- 
 alds V. Ronalds, L. R. 3 P. & D. 259. 
 
 5. Collins z/. Collins, 71 N.Y. 269. Also,. 
 Collins V. Collins, 80 N. Y. i. 
 
 6. Scott V. Scott, 17 Ind. 309. 
 
 7. Kock V. Kock, 42 Barb. (N. Y.) 515. 
 See also Purcell v. Purcell, 4 Hen. & 
 Munx. 605. See Terry v. Terry, 2 Barb. 
 Ch. (N. Y.) 285, 289; and see cases where 
 husband is in default: Hicks v. Hicks,. 
 L. R. 9 Eq. 175; Constable v. Constable, 
 L. R. 2 P. & D. 17; Graves v. Graves,, 
 2 Paige (N. Y.), 62, 63. 
 
 8. Rose V. Rose, 11 Paige (N. Y.), 166; 
 Burrows v. Burrows, 6 Lea (Tenn.), 497. 
 
 9. Rogers w. Rogers, 4 Swab & T. 82; 
 Swearingen u. Swearingen, 19 Ga. 265;. 
 Zeigenfuss v. Zeigenfuss, 21 Mich. 414; 
 Glasser v. Glasser, 28 N.J. Eq. 22; Van- 
 degrift v. Vandegrift, 30 N. J. Eq. 76; 
 Thompson v. Thompson, 3 Head. (Tenn.y 
 527. 
 
 10. McEwen v. McEwen, 2 Stock. (N, 
 J.) 286, n. 
 
 The fact that the wife is a drunkard 
 does not prevent the award, but the court 
 will see that the money is not misapplied. 
 Sanders v. Sanders, 2 Edw.Ch.(N. Y.)49i. 
 
 11. 2 Bish. on M. & D. §| 404, 408. 
 
 12. King z/. King, 27 Ala. 387; Jenkins 
 V. Jenkins, 91 III. 167; Call v. Call, 65. 
 Me. 407; Miller J/. Miller, 43 Iowa, 325; 
 Chaffee v. Chaffee, 14 Mich. 463. 
 
 13. Krause v. Krause, 23 Wis.354; Gold- 
 smith V. Goldsmith, 5 Mich. 285; Zeigen- 
 fuss u. Zeigenfuss. 21 Mich. 417; Whitt- 
 more v. Whittmore, 49 Mich. 417. See 
 J'ones V. Jones, L. R. 2. P. & D. 333. 
 
 It is in the court's discretion in such a 
 case. It is not a matter of right. Hol- 
 thoefer v. Holthoefer, 47 Mich. 643. 
 
 14. D'Oyley v. D'Oyley, 4 Swab & T. 
 226; Willis V. Willis, 3 Swab & T. 542; 
 Standford v. Standford, i Edw. Ch. (N,' 
 Y.) 317; Germond v. Germond, i Paige 
 Ch. (N. Y.) 83; Roblett v. Roblett, L. R. 
 iP. &M. 651. ' 
 
 The discretion is judicial, not arbitrary. 
 
 475 
 
Amount of Alimpuy 
 
 ALIMONY. 
 
 Pendente late. 
 
 within the sound judicial discretion of the court.* In some States 
 the decree by the lower court of alimony pendente lite is final, at 
 least as to the amount.* In others it is subject to appeal, where 
 it may be annulled or altered.' So the court which granted it 
 may amend or revoke it.* 
 
 5. Amount of Alimony Pendente Lite. — This is determined by no 
 fixed rule,^ being in the discretion® of the court in view of the 
 circumstances of each case.'' The amount of 2}L\Ta.ovi.Y pendente lite 
 is less than that of perrnanent alimony,* and like permanent ali- 
 mony is arrived at by considering the joint means,' the husband's 
 faculties*" and the wife's property.** Where the fortune or prop- 
 erty came, whether from the wife or from the husband.** The ages 
 and abilities of the parties,*' and the expenses to which they are 
 
 1. Cooke V. Cooke, 2 Phillim. 40; 
 Jones V. Jones, L. R. 2 P. & D. 333; 
 Stillman v. Stillman, 99 111. 196; Foote 
 V. Foote, 22 111. 425; Brinkley v. Brink- 
 ley. 50 N. Y. 184; Burr v. Burr, 7 Hill (N. 
 Y.). 207; De Llamosas v. De Llamosas, 
 62 N. Y. 618; Foss V. Foss, 100 111. 576; 
 Glem V. Hill, 30 Ga. 94, 95. 
 
 2. Call Ti. Call. 63 Me. 407. 
 
 3. Left to discretion of trial court, but 
 subject to appeal when such discretion 
 has been abused. Rose v. Rose, 53 Mich. 
 595; Froman v. Froman, 53 Mich. 581; 
 Hecht V. Hecht, 28 Ark. 92; Glenn v. 
 Glenn, 44 Ark. 46; Sparhawk v. Spar- 
 hawk, 120 Mass. 390; Lapham v. Lap- 
 ham, 40 Mich. 527; De Llamosas v. De 
 Llamosas, 62 N. Y. 618; Schonwald v. 
 Schonwald, Phillips Eq. (N. Car.) 215; 
 Cox V. Cox, 19 Ohio St. 502; Cooke v. 
 Cooke, 2 Phillim. 40; Street v. Street, 2 
 Add. Ec. i; Whitsell v. Whitsell, 8 B. 
 Mon. (Ky.) 50; Jenkins w. Jenkins, 91 111. 
 167; Andrews v. Andrews, 69 111. 609, 
 612; Ressor v. Ressor, 82 111. 442. 
 
 The discretion must have been abused, 
 or the appellate "court will not disturb 
 the decree. Powell v. Powell, 53 Ind. 
 513; and see cases supra. 
 
 4. Cox V. Cox, 3 Add. Ec. 276; McGee 
 -v. McGee, 10 Ga. 477; Waters j/. Waters, 
 49 Mo. 385; Anon., 4 N. J. Eq. 171; Moe 
 V. Moe, 39 Wis. 308; Leslie v. Leslie, 11 
 Abb. Pr. N. S. (N. Y.) 311; Hopkins v. 
 Hopkins, 40 Wis. 462; Coad v. Coad, 
 40 Wis. 392; Williams v. Williams, 29 
 Wis. 517; Kock V. Kock, 42 Barb. (N, 
 Y,) 515; Goldsmith v. Goldsmith, 6 Mich. 
 285, 
 
 5. 'Andrews v. Andrews, 69 111. 609; 
 Farley J/. Farley, 30 Iowa, 353; Richmond 
 V. Richmond, 2 N. J. Eq, 90; Burr v. Burr, 
 7 Hill (N.Y.), 207; Prince v. Prince, i 
 Rich. Eq. (S. Car.) 282; Stillman v. Still- 
 man, 7 Baxt. (Tenn.) 169; Bailey v. 
 Bailey, 21 Gratt. (Va.) 43; Williams v. 
 
 Williams, 36 Wis. 362; Rees v. Rees, 3 
 Phillim, 235. 
 
 6. Collins V. Collins, 71 N. Y. 269; 
 Hill V. Hill. 47 Ga. 332; Powell v. Pow- 
 ell, L. R. 3 P. & D, 186; Jones v. Jones, 
 2 P. & D. 333, 338; Rose V. Rose, 53 
 Mich. 585; see cases supra, and see ante, 
 note I. 
 
 7. Smith v. Smith, 2 Phillim. 235, and 
 cases supra, notes i, 5, and 6. 
 
 8. Cooke zf.Cooke, 2 Phillim, 40; Kempe 
 V. Kempe, i Hagg. Ec. 532; Hawkes 
 V. Hawkes, i Hagg. Ec. 526; McGee v. 
 McGee, 10 Ga, 477, 490; Amos v. Amos, 
 4 N. J. Eq. 171, 172; Germond v. Ger- 
 mond, 4 Paige (N. Y.), 643; Hammond 
 V. Hammond, Clarke (N. Y,), 151; Coles 
 V. Coles, 2 Md. Ch, 341; Little v. Little, 
 63 N. Car. 22, 24; Melizet v. Melizet, i 
 Parsons, 77, 78; 2 Bish. on M. & D. 
 §458, 
 
 9. Cooke V. Cooke, 2 Phillim, 40; > 
 Street v. Street, 2 Add, Ec, i;, Smith v. 
 Smith, 2 Phillim. 235; Powell v. Powell, 
 L, R, 3 P, & D, 186, ' 
 
 10. Bergen v. Bergen, 22 III.187; Eden- 
 muller v. EdenmuUer, 37 Cal. 364, See 
 post, notes 6 et seq., p, 485, 
 
 li, McGee z), McGee, 10 Ga, 477; Brown 
 V. Brown, 22 Mich. 242; Harrison v. Har- 
 rison, 49 Mich. 240, 241 ; Merritt v. Mer- 
 ritt, 99 N. Y. 643. See post, notes 4 et 
 seq., p. 485. 
 
 12, Cooke ■u. Cooke, 2 Phillim, 40; Ot- 
 way V. Otway, 2 Phillim. 109; Smith v. 
 Smith, 2' Phillim. 152, 235; Street v. 
 Street, 2 Add, Ec, i; Wades v. Wades, 29 
 L. J. Mat. Cas. 151, note; McGee v. Mc- 
 Gee, 10 Ga, 477; Burr v.' Burr, 7 Hill, 
 207; Stillman v. Stillman, 7 Baxt. (Tenn.) 
 169, 183; Von Glahn v. Von Glahn, 46 
 111. 134; Lovett V. Lovett, 11 Ala. 763; 
 Ressor v. Ressor, 82 III, 442; 2 Bish. on 
 M. & D. § 457; Merritt v. Merritt, gg 
 N. Y. 643. 
 
 13. Lovett -v. Lovett, n Ala. 763; 
 
 476 
 
"When Alimony 
 
 ALiMONY. 
 
 Pendente Lite Ceases. 
 
 subjected, the custody and support of miinor children, and the 
 like.* 
 
 Taking all these circumstances into account, the court will 
 award the wife her just proportion ; * as for instance, one fourth,* 
 one fifth,* one eighth,^ almost one third,* one half,' which may 
 in the discretion of the court be increased or diminished as the 
 cause progresses,® or even revoked.® 
 
 As a part of this alimony, or besides this allowance, the court 
 will also allow her suit-money *" and counsel-fees.^* 
 
 6. When Alimony Pendente Lite Ceases. — As shown before,** ali- 
 mony /^k^^k^^ lite may begin as soon as the husband is "in 
 court ;" and if the court does not annul the decree,** it continues 
 as long as the suit is pending, but ceases when the suit is dis- 
 missed,** or the parties are reconciled,*** or one of them dies,** or 
 a final decree is entered.*'' 
 
 Schlosser v. Schlosser, 2g Ind. 488; 
 Bursler v. Bursler, 5 Pick. (Mass.) 427; 
 Lynde v. Lynde, 2 Barb. Ch. (N. Y.) 
 72. 
 
 1. Hawkes v. Hawkes, i Hagg. Ec. 
 526; Street v. Street, 2 Add. Ec. i; Lynde 
 V. Lynde, 2 Barb. Ch. (N. Y.) 72; Amos 
 V. Amos, 4 N. J. Eq. 171; McGee v. Mc- 
 Gee, 10 Ga. 477; Halleman v. Halleman, 
 65 Ga. 476; Bergen v. Bergen, 22 111. 
 187; Plaster v. Plaster, 67 111. 93; Call 
 ». Call, 65 Me. 407; Hammond v. Clarke 
 (N. Y.) 151; Burr v. Burr, 7 Hill (N. Y.), 
 207; Foss V. Foss, 100 111. 570. 
 
 2. Williams v. Williams, 29 Wis. 517, 
 525; Constable v. Constable, L. R. 2 P. 
 & D. 17; Powell V. Powell, L. R. 3 P. & 
 D. 186; Haviland v. Haviland, 32 L. J. 
 Mat. Cas. 67. 
 
 3. Finlay !<. Finlay, Milw. 575; Irwin 
 V. Dowling, Milw. 629. 
 
 4. Cooke V. Cooke, 2 Phillim. 40; 
 Williams v. Williams, 29 Wis. 517, 525. 
 
 5. Butler v. Butler, Milw. 629. 
 
 6. Brown v. Brown, 2 Hagg Ec. 5, 7; 
 Harris v. Harris, I Hagg. Ec. 351; Smith 
 V. Smith, 2 Phillim. i. 
 
 7. Collins V. Collins, 29 Ga. 517. 
 
 8. See ante, note 4, p. 476. 
 
 9 Kock V. Kock, 42 Barb. (N. Y.) 515; 
 Goldsmith v. Goldsmith, 6 Mich. 285. 
 
 10. See ante, note i, p. 475. 
 
 11. See ante, note 13, p. 474. 
 
 The amount of counsel-fees and suit- 
 money depends on the means of the,hus- 
 band. 2 Bish. on M. & D. § 420. 
 
 The character of services to be ren- 
 dered. Baldwin v. Baldwin, 6 Gray 
 (Mass.), 341; Williams v. Williams, 29 
 Wis. 317. 
 
 And the practice of the various courts. 
 Hepworth v. Hepworth, 3 Swab & T. 
 414; EUoytt V. EHoytt, 3 Swab & T. 105.; 
 Weber v, Weber, i Swab & T. 2ig; 
 
 Pearson v. Darrington, 32 Ala. 327; 
 Lowell V. Lowell, 55 Cal. 315; Collins v. 
 Collins, 29 Ga. 517; Weaver v. Weaver, 33 
 Ga. 172; Blake z/. Blake, 70 111. 618; Cham- 
 plin V. Champlin, 42 Iowa, i6g; Meyjor 
 V. Meyjor, 3 Mete. (Ky.) 298; Dugan v. 
 Dugan, I Duval (Ky.), 289; Prescott v. 
 Prescott, 59 Me. 146; Chaffee v. Chaffee, 
 14 Mich. 463; Waters v. Waters, 49 Mo. 
 385 ; De Llamosas v. De Llamosas, 62 
 N. Y. 618; Thompson v. Thompson, 3 
 Head. (Tenn.) 527; Williams 7/. Williams, 
 29 Wis. 517. 
 
 In many States the right to give coun- 
 sel-fees, etc., is provided for by statute, 
 but a statute is not necessary. McGee v. 
 McGee, 10 Ga. 477; Dow v. Eyster, 79 
 111. 254. 
 
 12. ^K/^, notes 4, 11, p. 472; n.i,p. 473. 
 
 13. See ante, notes 3, 4, p. 476. 
 
 14. Weaver v. Weaver, 33 Ga. 172; 
 Persons v. Persons, 7 Humph. (Tenn.) 
 183. See OK/? note 3, p. 473. See also Mc- 
 CuUough V. Murphy, 45 111. 256; Holt v. 
 Holt, 2 Swab & T. 604; Gosset v. Pat- 
 ton, 23 Kan. 340; Wilde v. Wilde, 2 Nev. 
 306;, Gregory v. Gregory, 32 N. . J. Eq. 
 424. 
 
 15. Tiffin V. Tiffin, 2 BInney (Pa.), 202; 
 Wallingsford v. Wallingsford, 6 H. & J. 
 (Md.) 485. 
 
 16. Dewees v. Dewees. 55 Miss. 315. 
 
 17. Standford v. Standtord, i Edw. Ch. 
 (N. Y.) 317. 
 
 The order, however, may be made on 
 final hearing. Jeter v. Jeter, 36 Ala, 
 391; and see ante, note i, p. 473. 
 
 Or on appeal. Chaffee v. Chaffee, 14 
 Mich. 463. 
 
 And may be made to take effect from 
 the beginning of the suit. Swearingen 11. 
 Swearingen, ig Ga. 267; Hamerton v. 
 Hamerton, I Hagg. Ec. 23; Bain v. Bain, 
 2 Add. Ec. 253; Harris v. Harris, i 
 
 477 
 
Permanent Alimony, 
 
 ALIMONY. 
 
 Permanent Alimony.' 
 
 7. Permanent Alimony is that alimony which is granted after the: 
 termination of the suit.^ 
 
 The power to grant permanent alimony and the circumstances 
 under which it may be decreed is regulated largely by statute.* 
 Generally it is allowed in any case of divorce absolute^ or limited,, 
 provided the marriage was a valid one.* 
 
 But by statutes in many States it is allowed only when the, 
 divorce is for adultery or other fault of husband,' and by others 
 not when for adultery or misconduct of the wife.^ In other 
 States a certain part of the wife's estate, in the nature of alimony, 
 is given to the husband,'' and in some States no distinction is ap- 
 parently made between the laws governing alimony to the wife, 
 and alimony to the husband.** 
 
 The court may grant alimony though not specifically prayed 
 for' if the proper facts are before the court. ^" It usually, how-, 
 
 Hagg. Ec. 353; Rees v. Rees, 3 Phillim. 
 387; Russell V. Russell, 69 Me. 336. 
 
 Or from the date of the order. See 
 Rees V. Rees, 3 Phillim. 387; Coles v. 
 Coles, 2 Md. Ch. 341. 
 
 1. See ante, note I, p. 467; and see as 
 to maintenance, sometimes called per- 
 manent alimony, ante. 
 
 2. See, for references to statutes and 
 cases under them, Stewart on M. & D. 
 § 364; and see also Stimson's American 
 Statute Law, § 6261 (A). See ante, note I, 
 p. 472. 
 
 3. It is doubtful if alimony would be 
 allowed in cases of absolute divorce in 
 the absence of a statute. See 2 Bish. on 
 M. & D. § 376. 
 
 4. This is so well established that it 
 scarcely needs authority. See, however, 
 Smyth v. Smyth, 2 Add. Ec. 254; Turner 
 V. Turner, 44 Ala. 437; Bowman t/.Worth- 
 ington, 24 Ark. 522; Frith «/. Frith, 18 Ga. 
 273; McFarland v. McFarland, 51 Iowa, 
 565; Holbrcols V. Holbrook, 32 La. Ann. 
 
 13- 
 
 5. Me., Rev. Stat. 1883. chap. 60, § g; 
 Oreg. Civ. Code, § 497; R. I., Pub. Stat. 
 1882, chap. 167, § 9; Dak., Civ. Code, § 
 73; N. Y., Civ. Code, § 1760; La., Rev. 
 Civ. Code, 1875, § 160; Kan., Comp. 
 Laws, 1879, chap. 80, § 646; Cal., Hittel's 
 Code, 1876, § 5139. 
 
 6. Mich., Howell's Annotated Stat. 
 1882, § 6245; Wis., Rev. Stat. 1878, § 
 2364; Minn., Gen. Stat. 1878, chap. 62, § 
 23; Neb., Comp. Stat. 1881, part I, chap. 
 25, § 22 ; Ariz., Comp. Laws 1877, 
 § 1922. 
 
 And for cases in which no alimony 
 allowed because wife in fault, see Latham 
 ■V. Latham, 30 Gratt. (Va.)307; Harris v. 
 Harris, 31 Gratt. 13; Lee v. Lee, i Duv. 
 196; Carr v. Carr, 22 Gratt. (Va.) 168; 
 Atwater v. Atwater, 53 Barb. (N, Y.) 
 621; Spitier V. Spitler, 108 111. 120. 
 
 478 
 
 And others where she is not entitled, 
 upon a divorce decreed in favor of the 
 husband. Goval Abr. 508; 3 Black. 
 Com. 94; 2 Chitt. Gen. Prac. (Am. Ed.) 
 462, 463; Palmer v. Palmer, i Paige (N. 
 Y.), 276; Everett v. Everett, 52 Cal. 383. 
 
 And in Missouri only when the decree 
 is in her favor. Mclntire v. Mclntire, 
 80 Mo. 470. 
 
 7. Iowa, R. S. 1880, § 2226, and see 
 § 6229; Small V. Small, 42 Iowa, in; 
 Mass., Pub. Stat. 1882, p. 817, § 36; Va., 
 Code 1873, chap. 105, § 12; Vt., R. S. 
 
 1880, § 2377. 
 
 8. Oreg., Civ. Code, §497; Wash., Code 
 
 188 1, § 2007. See Iowa, suprai And by 
 statute in Illinois, R. S. 1880, p. 424, § 19. 
 
 Alimony is to be given in nullity suits. 
 Without a statute it has been held that 
 this could not be done. Chase v. Chase, 
 65 Me. 21; Fischli v. Fischli, i Blackf. 
 (Ind.) 360; Bartlett v. Bartlett, Clarke 
 (N. y.) 460; North V. North, i Barb. Ch. 
 (N. Y.) 241; Bird v. Bird, i Lee, 621. 
 But see Graves v. Graves, 108 Mass. 
 314; Brown v. Westbrook, 27 Ga. 102; 
 ZuU V. Zull, Saxton (N. J.) 96. 
 
 Though where a woman marries a 
 man, knowing of no impediment, if the 
 marriage is afterwards declared null or 
 void the court will not allow her to go 
 entirely destitute. See Strode f. Strode, 
 3 Bush (Ky.), 227; GrifEn v. Griffin, 47 
 N. Y. 134; Van Alley v. Van Alley, 19 
 Ohio St. 588; State v. Smith, 19 Wis. 531. 
 
 In England this is accomplished by 
 giving the wife something nomine expen- 
 sarum. Scrirashire v. Scrimshire,2 Hagg. , 
 Con. 395. 
 
 9. Jackson v. Jackson, 1. McArth. (D. 
 C.)34i; Chandler v. Chandler, 13 Ind. 
 492; Prescott V. Prescott, 59 Me. 146; 
 Danow v. Danow, 43 Iowa, 411, But 
 see Clayton v. Clayton, i Ashm. (Pa.) 52.. 
 
 10. Weishaupt v. Weishaupt, 27 Wis. 
 
permanent Alimony. 
 
 ALIMONY. 
 
 Fermaneut Alimony. 
 
 ever, should be specifically prayed for either in the original bill or 
 libel, 1 or by a petition or affidavit setting forth the husband's 
 faculties.* 
 
 It may be prayed for at any time before final decree, ^ or after 
 final decree, if the divorce is a mensa et thoro;^ though not, it 
 seems, if a vinculo.^ The defendant should be allowed to answer,® 
 unless he is in default.'' It is usually granted in the same judg- 
 ment with the divorce,** but may be in a separate one.' 
 
 It may be ordered to begin from the date of final decree,*" or 
 from the beginning of the suit.^^ 
 
 In the absence of statute, the award is usually a sum to be paid 
 periodically,!* ^jj^j ^^^ either specific property,** or a sum in 
 gross.** But by statutes in some States the court may award a 
 specific part of the husband's lands,*^ and in others, in the dis- 
 cretion** of the court, either an allowance or a sum in gross.*'' 
 
 621, See also Wallingsford v. Wallings- 
 ford, 6 Har. & J. (Md.) 485; Lishey v. 
 Lishey, 2 Tenn. Ch. i. 
 
 1. See Chandler v. Chandler, 13 Ind. 
 492; Damon v. Damon, 28 Wis. 510; 
 Prescott V. Prescott, 59 Me. 146. 
 
 2. See ante, and see Countz v. Countz, 
 30 Ark. 73; Sheaf e v. L'eighton, 36 N. H. 
 240; McGee v. McGee, 10 Ga. 477; Van- 
 degrift v. Vandegrift, 30 N. J. Eq. 76; 
 Wright V. Wright, 3 Tex. 168; Litowich 
 V. Litowich, 19 Kans. 451; Reeves v. 
 Reeves, 82 N. Car. 348.' 
 
 3. Prescott v. Prescott, 59 Me. 146. 
 See ante, notes i and 2. 
 
 4. Covell V. Covell, L. R. 2 P. & D. 
 411, 412. See also Crugom v. Crugom, 
 
 64 Wis. 253. 
 
 5. Wilde V. Wilde, 36 Iowa, 319. See, 
 however, Shotwell v. Shotwell, i S. & M. 
 Ch. (Miss.) 51, 64; Lawson v. Shotwell, 
 27 Miss. 630; Lyon u. Lyon, 21 Conn. 
 185; McKarracker v. McKarracker, 3 
 Yeates (Pa.), 56; D'Arusmont v. D'Arus- 
 mont, i4Law Rept. 311; 8 West. L. J. 548. 
 See also 2 Bish. on M. & D. §§ 382, 492. 
 
 6. Wright V. Wright, 3 Texas, 168; I 
 Hemp. (U. S.) 58. 
 
 7. Hicks w. Hicks, 9 Ired. Eq. (N. Car.) 
 175, 176; Constable v. Constable, L. R. 
 2 P. & D. 17; Grove v. Grove, 2 Paige 
 (N. Y.), 62. 
 
 8. Campbell v. Campbell, 37 Wis. 206. 
 
 9. Bacon v. Bacon, 34 Wis. 594. 
 
 If obtained in the same suit wherein 
 the divorce is pronounced it need not be 
 decreed at the same time. Call v. Call, 
 
 65 Me. 407; Sheafe v. Laighton, 36 N. H. 
 240; Gregory v. Gregory, 5 Stew. Ch. 
 (N. J.) 424; Covell V. Covell, L. R. 2 P. 
 & D. 411. Also Crugom v. Crugom, 64 
 Wis. 253. 
 
 And for cases in which ex-parte divorce 
 granted, and subsequent suit for alimony. 
 
 479 
 
 see Cox v. Cox, 19 Ohio St. 502; Stil- 
 phen V. Stilphen, 58 Me. 508; Nichols 
 V. Nichols, 10 C. E. Green (N. J.), 60. 
 See 2 Bish. on Si, & D. § 170, b. 
 
 10. Durant v. Durant, i Hagg. Ec. 528; 
 Kempe v. Kempe, i Hagg. Ec. 532^ 
 Soules V. Soules, 3 U. C. Chan, in, 115, 
 116, 118; Ricketts V. Ricketts, 4 Gill 
 (Md.), 105; Holmes v. Holmes, 29 N. J. 
 Eq. 9, 12. 
 
 11. Forrest v. Forrest, 25 N. Y. 501; 
 s. c, 6 Duer, 102, 149; Burr v. Burr, 7 
 Hill (N. Y.), 207; 2 Bish. on M. & D. 
 §§ 425, 458. 
 
 12. Wallingsford v. Wallingsford, 6 H. 
 
 6 J. (Md.) 485. See Russell v. Russell, 
 4 Greene, 26; Lockridge v. Lockridge, 3 
 Dana (Ky.), 28, 29; Maguire v. Maguire, 
 
 7 Dana (Ky.), 181; Calame v. Calame; 
 25 N. J. Eq. 548; 24 N. J. Eq. 434; Al- 
 mond V. Almond, 4 Rand (Va.), 662; 2 
 Bish. on M. & D. § 427. 
 
 13. Almond v. Almond, 4 Rand (Va.), 
 662. See also Halleman v. Halleman, 6s 
 Ga. 476. 
 
 14. Calame v. Calame, 25 N. J. Eq. 548; 
 Crain v. Cavana, 36 Barb. (N.Y.)4io, 413. 
 
 This may be done by agreement or 
 consent. Crews v. Mooney, 74 Mo. 26. 
 
 15. Del. Rev, Code 1874, 75, g. 
 
 If for fault of husband. Wis. 2364, in any 
 case; and Oreg. Civ. C. § 495, to either, 
 one third undivided part in fee of other's 
 real estate, in addition to allowance of ali- 
 mony. See also Wiggin v. Smith, 54 N. 
 H. 213; Jolly V. Jolly, i Iowa, 9; Dinet 
 V. Eigenmann, 80 111. 275; Blankenship 
 V. Blankenship, ig Kans. 159; Broadwell 
 V. Broadwell, 21 Ohio St. 657; Taylor v. 
 Taylor, 93 N. Car. 418. 
 
 16. Ross V. Ross, 78 111. 402; McClung 
 V. McClung, 40 Mich. 493; Williams v. 
 Williams, 36 Wis. 362. 
 
 17. Me. Rev. Stat. 1883, chap. 60, § 
 
Amount of Permanent Alimony, ALIMONY. Amount of Permanent Alimony, 
 
 8. Amount, of Permanent Alimony, — In some States this is regu- 
 lated by statute, 1 but usually, like 2!^\:mox\y pendente lite, it is left 
 to the discretion of the court, who consider the circumstances of 
 each case,* taking into account the husband's faculties,* the wife's 
 means,* the expenses to be borne by each, support of children, 
 etc.,^ the source from which the money came, whether from 
 the husband or the wife ;® likewise the ages and abilities of the 
 parties,'' and their conduct,* giving more to the wife if the hus- 
 band was the offender* than if she had contributed to the fault,*" 
 and a bare maintenance,** if anything,*** if she were wholly wrong. 
 
 14; Ohio Rev. Stat. 1880, § 5700; Mich., 
 Howell's Annotated Statutes 1882, § 
 6245; Kans. Comp. Laws 1879, chap. 
 80, § 646; Del. Rev. Code 1874. chap. 
 75, § 10; Mo. Rev. Stat. 1879, § 2180; 
 Oreg. Civ. C. § 497. See also cases 
 Campbell v. Campbell, 37 Wis. 206; 
 "Wheeler v. Wheeler, 18 111. 39; Miller v. 
 Clark, 23 Ind. 370; Graves v. Graves, 
 108 Mass. 314, 317; Burrows v. Purples, 
 107 Mass. 428; Prescott v. Prescott, 59 
 Me. 146; McClun^ v. McClung, 40 Mich. 
 493; Tayler v. Gladwin, 40 Mich. 232; 
 Petersine v. Thomas, 28 Ohio St. 596; 
 Buckminster v. Buckminster, 38 Vt. 
 248; Williams v. Williams, 36 Wis. 362. 
 
 But not unless by statute. See Grain v. 
 Cavana, 36 Barb. (N, Y.) 410. 
 
 And though awarded in gross may be 
 made payable in instalments. Ind. Rev. 
 Stat. 1881, § 1047; Tayler v. Gladwin, 40 
 Mich. 232. 
 
 1. So in Rhode Island it must not 
 exceed the use for life of one half the real 
 estate and one half the personalty abso- 
 lutely, nor in Connecticut and Minnesota 
 one half the husband's property real and 
 personal, and in Louisiana one half his 
 income. 
 
 2. See ante, notes 5, 6, 7, p. 476; Fee 
 also Forman w. Forman, 109 111. 63; 
 Dawson v. Dawson, no 111. 279; Sester- 
 hen V. Sesterhen, 60 Iowa, 301. 
 
 3. See ante, notes g, 10, p. 476; see 
 post, note 6 et seq., p. 485; see also Jen- 
 kins v. Jenkins, 6g Ga. 483, where it was 
 held to be error to exclude the husband's 
 testimony as to his faculties. 
 
 4. See ante, note 11, p. 476; see post, 
 notes 4, 5 et seq., p. 485. 
 
 5. See ante, note i, p. 477. 
 
 6. See ante, note 12, p. 476; see Rob- 
 bins V. Robbing, loi 111. 416, and Wilson 
 •u. Wilson, 102 1,1. 297. 
 
 7. See ante, note 13, p. 476. 
 
 8. Becker v. Becker, 79 111. 532; Ber- 
 gen V. Bergen, 22 111. 187; Hammond v. 
 Hammond, Clarke (N. Y.), 151; Burr v. 
 Burr, 7 Hill (N. Y.), 207; Williams v. 
 Williams, 29 Wis. 517. 
 
 9. Cooke V. Cooke. 2 Phillim, 40; 
 Smith V. Smith, 2 Phillim. 235; Bergen 
 V. Bergen, 22 111. 187; Burr v. Burr, 
 7 Hill (N. Y.), 207. 
 
 And for cases in which only given to 
 wife when husband in fault, see ante, 
 note I, p. 478; and in Metzler v. Metzler, 
 99 Ind. 384, where divorce for fault of hus- 
 band and custody of child given to wife, 
 the court granted the wife $1590, the 
 husband being worth at least $3500. 
 
 10. See Lovett v. Lovett, II Ala. 763; 
 Reavis v. Reavis, 2 111. 242; Conner v. 
 Conner, 29 Ind. 48; Zuver v. Zuver, 36 
 Iowa, 190, and cases there cited; Stevens 
 V. Stevens, 49 Mich. 504; Buerfening v. 
 Buerfening, 23 Minn. 563. 
 
 11. See Conner v. Conner, 29 Ind. 48; 
 Fivecoat v. Fivecoat, 32 Iowa, 198; 
 Sheafe v. Laighton, 36 N. H. 240; She'afe 
 V. Sheafe, 24 N. H. 564; see Grates v. 
 Graves, 108 Mass. 314; Richardson v. 
 Yerg (Tenn.), 67, 77, 81; see Bailey w. 
 Bailey, Wright (Ohio), 514; Pritchard v, 
 Pritchard, 3. Swab & T. 523; Jee v. 
 Thurlow, 4 Donl. & R. 11. 
 
 For other cases of alimony to a wife in 
 fault, see Deenis v. Deenis, 79 111. 74; 
 Reavis v. Reavis, 2 111. 242; Zuver v. 
 Zuver,, 36 Iowa, 419; Gaines v. Gaines, 9 
 B. Mon. (Ky.) 295; Pence v. Pence, 6 B. 
 Mon. (Ky.) 496; Hedrick v. Hedrick, 28 
 Ind. 291; Coon v. Coon, 26 Ind. 189; 
 Cox !<. -Cox, 25 Ind. 303; Chandler v. 
 Chandler, 13 Ind. 492; Fulk v. Fulk, 8 
 Blackf. (Ind.) 561. 
 
 This is sometimes regulated by statute. 
 See cases supra, and see Ala. R. C. 1876, 
 § 3697; Pa. Purd. Dig. 1871, p. 513, §§ 
 24. 27; Miles V. Miles, 76 Pa. St. 357. 
 
 And is forbidden by Cal. Civ. Code, 
 1881, § 139. Everett v. Everett, 52 Cal. 
 
 383- 
 
 12. Lovett V. Lovett, 11 Ala. 763; Lee 
 V. Lee, I Duv. (Ky.) 196; Shafer v. 
 Shafer, 10 Neb. 468; Fry v. Fry, 7 Paige 
 
 (N. Y.), 461; Carr 
 (Va.) 168; Palmer 
 (N. Y.). 276; Allen 
 419; Wallingsford 
 
 V. Carr, 22 Gratt. 
 V. Palmer, i Paige 
 V. Allen, 43 Conn. 
 V. Wallingsford, 6 
 
 48C 
 
Increasing or Diminishing 
 
 ALIMONY. Amount of Permanent Alimony. 
 
 The court will also take into account what amount the husband 
 can readily pay without rendering him destitute or impairing his 
 business.* If the parties have made a fair, bona-fide agreement, 
 without any fraud, the court will adopt it as its decree.** 
 
 And after due consideration of the circumstances of the case 
 the following amounts have been awarded : one third,* one half,* 
 from one half to one third, ^ one quarter,® from one third to one 
 quarter,' two fifths,** not to exceed one third his income as the 
 maximum, etc.® 
 
 9. Increasing or Diminishing Amount of Permanent Alimony. — A 
 motion or petition may be presented setting forth facts to lead 
 the court to increase or diminish the amount of alimony decreed. '^* 
 This they usually have the power to do in cases where the alimony 
 was decreed in a divorce a mensa et tkoro^^ or in cases of alimony 
 without divorce.^'-* But not, it seems, in cases where the court has 
 no longer jurisdiction of the parties, as in a divorce a vinculo,^^ or 
 
 Har. & J. (Mo.) 485; Atwater v. At- 
 water, 53 Barb. (N. Y.) 621; Latham v. 
 Latham, 30 Gratt. (Va.) 307; Harris v. 
 Harris, 31 Gratt. (Va.) 13; State v. 
 Smith, 19 Wis. 531. 
 
 And for cases where not allowed to 
 adulterous wife, see ante, note 6, p. 478. 
 
 1. See Neil v. Neil, 4 Hagg. Ec. 273; 
 Ward V. Ward, i Swab & T. 484; An- 
 drews V. Andrews, 6g 111. 6og; Farley v. 
 Farley, 30 Iowa, 353; Abbey v. Abbey, 
 32 Iowa, 575; Forrest v. Forrest, 8 
 Bosw. (N. Y.) 610; Williams v. Wil- 
 liams, 3g Wis. 362; Gardner v. Gardner, 
 54 Ga. 560; Wardlaw v. Wardlaw, 39 
 Ga. 53; Williams v. Williams, 29 Wis. 
 517. 
 
 So in Graft v. Graft, 76 Ind. 136, a 
 decree of $4000 to a wife out of an es- 
 tate of $7000 was excessive. 
 
 2. Crews v. Mooney, 74 Mo. 26; Peter- 
 sine V. Thomas, 28 Ohio St. 596; Speck 
 V. Damson, 7 Mo. App. 165; Stilson v. 
 Stilson, 46 Conn. 15; Moon v. Baum, 58 
 Ind. 194; Shaw v. Gould, 74 Me. 540; 
 Adams v. Adams, 52 Minn. 72. See Ca- 
 lame v. Calame, 25 N. J. Eq. 548", McLa- 
 ren V. McLaren, 33 Ga. Supp. 99. 
 
 3. Some of these cases apply to ali- 
 mony ptndeate lite, but the principles are 
 discussed. See Ricketts v. Ricketts, 4 
 Gill. (Md.) 105; Kempe v. Kempe, i 
 Hagg. Ec. 532; Otway v. Otway, 2 Phil- 
 lim. 109; Williams v. Williams, 36 Wis. 
 363, 367; Jeans v. Jeans, 2 Har. (Del.) 
 142; Persons v. Persons, 82 111. 442; 
 Musselman v. Musselman, 44 Ind. 106. 
 
 4. Halleman v. Halleman, 65 Ga. 476; 
 Stillman v. Stillman, 7 Baxt. (Tenn.) l6g; 
 Fischli V. Fischli, 2 Litt. {Ky.)337; Rees 
 V. Rees, 7 Oreg. 47; Bergen v. Bergen, 
 22 111. 187; Cooke V. Cooke, 2 Phillim. 
 
 40. Haigh V. Haigh, L. R. i P. & D. 
 709. See Thornberry v. Thornberry, 4 
 Litt. (Ky.) 251; Ross v. Ross, 78 111. 
 402; Wilson V. Wilson, 102 III. 297; 
 Chenault v. Chenault, 5 Sneed (Tenn.), 
 248; Damon v. Damon, 28 Wis. 510. , 
 
 6. Durant v. Durant, i Hagg. Ec. 528; 
 Hyde v. Hyde, 29 L. J. Mat. Cas. 150- 
 151, n. ; Lovett v. Lovett, 11 Ala. 763; 
 Thornberry v. Thornberry, 4 Litt. (Ky.) 
 251. 
 
 6. Plaster v. Plaster, 47 111. 290. 
 
 7. Miller v. Miller, 6 Johns. Ch. (N.Y.) 
 gi; Turner v. Turner, 44 Ala. 437; Mus- 
 selman V. Musselman, 44 Ind. 106 ; 
 Lockridge v. Lockridge,,3 Dana (Ky.), 28. 
 
 8. Severn v. Severn, 7 U. C. Chan. 
 109. ' 
 
 9. Pa. Purdon's Digest, Div. § 25; Mc- 
 Clurg's App. 66 Pa. St. 366. 
 
 The jury is not confined, in determin- 
 ing the amount, to the property owned 
 by the husband at the date of the verdict. 
 The verdict may cover any property 
 mentioned in the schedule. Halleman 
 V Halleman, 65 Ga. 476; see, contra, 
 Crulle V. Crulle, 79 Va. I02. 
 
 10. Bauman J). Bauman. 18 Ark. 320; 
 Perkins v. Perkins, 12 Mich. 456. 
 
 11. Rogers v. Viness, g Ired. (N. Car.) 
 2g3; Taylor v. Taylor, g3 N. Car. 418; 
 Smith V. Smith, 45 Ala. 264; Miller v. 
 Miller, 6 Johns. Ch. (N. Car.) 51, g3; 
 Sloan V. Cox, 4 Hayw. (N. Car.) 7S,'77; 
 Otway V. Otway, 2 Phillim. log; De 
 Blanquiere v. De Blanquiere, 3 Hagg. 
 Ec. 322, 329; Cox V. Cox, 3 Add Ec. 
 276. 
 
 12. Anon., i Desaus. Eq. (S. Car.)ii3; 
 Whorewood v. Whore wood, i Rep. Ch. 
 223. 
 
 13. Fischli V. Fischli, i Blackf. (Ind.) 
 
 481 
 
Enforcing the Decree 
 
 ALIMONY. 
 
 for Alimony. 
 
 where the decree was a final settlement of the prdperty-rights 
 between the parties,^ unless the court has reserved this right in 
 its decree,* or is given it by statute as it is in many States.* The 
 power is only exercised in a case that clearly calls for interposition,* 
 generally some marked change in the circumstances of the parties.^ 
 
 And from the decision of the lower court there is usually an 
 appeal.® 
 
 10. Enforcing the Decree for Alimony.'' — In the jurisdiction in 
 which the decree was granted the court which granted it is the 
 proper court to enforce it,^ and although it has been said that it 
 is not a debt,* yet it has been enforced as a judgment,^" and if 
 
 360 ; Shepherd v. Shepherd, I Hun 
 (N. Y.), 240; Bacon v. Bacon, 43 Wis. 
 ig7; Kamp v. Kamp, 59 N. Y. 212; Smith 
 ■V. Smith,- 45 Ala. 264; Fries v. Fries, i 
 McArth. 291; Mitchell v. Mitchell, 20 
 Kan. 665; Kerr v. Kerr, 59 How. Pr. (N. 
 Y.) 255; Petersine v. Thomas, 28 Ohio 
 St. 596; Hardin v. Hardin, 38 Tex. 616. 
 
 1. See Shepherd v. Shepherd, i Hun 
 (N. Y.), 240; Forrest v. Forrest," 3 Bosw. 
 (N. Y.) 631 ; Webster v. Webster, 64 
 Wis. 438. 
 
 2. Severns ». Severns, 7 U.C.Chan. 109, 
 III; Fries I'. Fries, i McArth. 291; Lock- 
 ridge V. Lockridge, 3 Dana (Ky.), 28; 
 Petersine v. Thomas, 28 Ohio St. 596; 
 Williams v. Williams, 29 Wis. 517. 
 
 3. See statutes in various States; and 
 see Bauman v. Bauman, 18 Ark. 320; 
 Bowman v. Worthington, 24 Ark. 522; 
 McGee v. McGee, 10 Ga. 477; Stillman 
 ■V. Stillman, 99 111. 196; Fpote v. Foote, 
 22 111. 425; Wheeler v. Wheeler, 18 111. 
 39, 40; Wilde v. Wilde, 36 Iowa, 319; 
 Shaw V. McHenry, 52 Iowa, 182; Fisher 
 •V. Fisher, 32 Iowa, 20; Blythe v. Blythe, 
 25 Iowa, 266; Lockridge v. Lockridge, 3 
 Dana (Ky.), 28; 2 B. Mon. (Ky.) 25S ; 
 Call V. Call, 65 Me. 407; Sparha'wk u. 
 Sparhawk, 120 Mass. 390 ; Graves v. 
 Graves, 108 Mass. 314; Albee v. Wyman, 
 10 Gray (Mass.),222; Perkins v. Perkins, 
 12 Mich. 456; Goodman v. Goodman, 26 
 Mich. 417; Weld v. Weld, 28 Minn. 33; 
 Semron v. Semron, 23 Minn. 214: Sheafe 
 •v. Sheafe, 36 N. H. 155; Richmond v. 
 Richmond, 2 N. J. Eq. 90; Amos v. 
 Amos, 4 N. J. Eq. 121, 179; Petersine v. 
 Thomas, 28 Ohio St. 596; Buckminster 
 ■V. Buckminster, 38 Vt. 248; Campbell v. 
 Campbell, 37 Wis. 206; Hopkins v. Hop- 
 kins, 40 Wis. 462; Moe V. Moe, 39 Wis. 
 308; Thomas v. Thomas, 41 Wis. 229; 
 Codd V. Codd, 40 Wis. 23; Bacon v. 
 Bacon, 43 Wis. 197. 
 
 The power is not lost by removal of 
 parties. Andrews v. Andrews, 15 Iowa, 
 423. But is by death. O'Hagan v. 
 '■ O'Hagan, 4 Iowa, 309. 
 
 4. Fisher «-. Fisher, 32 Iowa, 20; Buck- 
 minster V. Buckminster, 38 Vt. 248. 
 
 5. Wilde V. Wilde, 36 Iowa, 319; Per- 
 kins V. Perkins, 12, Mich. 456; Goodman 
 V. Goodman, 26 Mich. 417; Semron v, 
 Semron, 23 Minn. 214 ; Petersine v. 
 Thomas, 28 Ohio, 596. See, however. 
 Shepherd v. Shepherd, I Hun (N. Y.), 
 240; affirmed, 58 N. Y. 644. 
 
 As that the husband's faculties have 
 increased or diminished. De Blanquiere 
 V. De Blanquiere, 3 Hagg. Ec. 322, 329; 
 Fisher v. Fisher, 32 Iowa, 20; Halstead 
 V. Halstead, s-Duer (N. Y.), 859. 
 
 Or the wife's means have improved or 
 decreased. Holmes v. Holmes, 4 Barb. 
 (N. Y.) 295. 
 
 Or that the wife has remarried. Bow- 
 man V. Worthington, 24 Ark. 522; Still- 
 man V. Stillman, 99 111. 196; Albee v. 
 Wyman, 10 Gray (Mass.), 222; Fisher v. 
 Fisher, 2 Swab & T. 411; Sidney i}. Sid- 
 ney, 4 Swab & T. 180. 
 
 And as to change for wife's bad con- 
 duct, see Sloan ii. Cox, 4 Hay w. (N. Car.) 
 75; Forrestw. Forrest, 3 Bosw. (N.Y.)66i. 
 
 6. This is of course largely regulated 
 by the statutes of the various States; and 
 on general subject of appeal see Whitsell 
 V. Whitsell, 8 B. Mon. (Ky.) 50; Jen- 
 kins V. Jenkins, 91 111. 167; Andrews 
 V. Andrews, 69 III. 609; Ressor v. Ressor, 
 82 111. 442; Stillman v. Stillman, 99 111. 
 196; P6well V. Powell, 53 Ind. 513; 
 Cooke V. Cooke, 2 Phillim, 40. 
 
 7. This is usually done under statutes. 
 
 8. Allen v. Allen, 100 Mass. 373; Van 
 Buskirk v. Mulock, 18 N. J. L. 184; 
 Guenther v. Jacobs, 44 Wis. 354. 
 
 9. Perkins v. Perkins, 18 Cal. 
 See Carfeton v. Carleton, 44 Ga. 
 Menzie v. Anderson, 65 Ind. 
 Daniels v. Lindley, 44 Iowa, 567; Pain 
 V. Pain, 80 N. Car. 322. Compare Blake 
 V. People, 80 111. 11; Allen v. Allen, 100 
 Mass. 373. 
 
 10. Allen V. Allen, 100 Mass. 373. 
 also Foster v. Foster, 130 Mass. 
 Hausfen' -u. Van Auken, 79 111. 302. 
 
 60. 
 216; 
 239; 
 
 See 
 
Security for Alimony. 
 
 ALIMONY. 
 
 Security for Alimony. 
 
 parties reside in different States, by the United States courts ;^ 
 and has also been enforced in the different ways, according to the 
 practice of the various courts,* as an ordinary decree,^ by supple- 
 mentary proceedings,* by execution, ^ by scire facias,^ by attach- 
 ment,' by sequestration,* or by appointing a receiver,^ or by charg- 
 ing it on land,*" or by proceedings for contempt. ^ 
 
 As a general rule, alimony cannot be enforced after the death 
 of either party.** 
 
 12. Security for Alimony.*' — After the suit has been begun the 
 wife may present a petition or affidavit alleging that the husband 
 is about to leave the jurisdiction, and upon this the court may 
 issue a ne exeat republica, which will not be discharged until he 
 gives security.** 
 
 She may likewise obtain an injunction preventing the husband 
 
 167; Russell V. Russell, 69 Me. 336; 
 Strorbridge v. Strorbridge, 21 Hun (N. 
 Y.), 288; Park v. Park, 80 N. Y. 156; 
 Pritchard ». Pritchard, 4 Abb. N. C. (N. 
 Y.) 298; Grove v. Grove, 68 Pa. St. 143. 
 Compare Coughlin k. Ehlert, 39 Mo. 285. 
 
 How much arrears will be enforced, 
 has been held to be within the discretion 
 of the court. Guenther v. Jacobs, 44 Wis. 
 354; and see 2 Bish. on M. & D. § 398. 
 
 Arrears may be enforced against a 
 deceased husband's estate, as any other 
 claim. Guenther v. Guenther, 40 Wis. 
 115, 119; Smith V. Smith, i Rob. Ec. 
 349; Francis v. Francis, 31 Gratt. (Va.) 
 283. But see 2 Beasley (N. Y.), 119. 
 
 In cases of wife's death her adminis- 
 trator cannot collect arrears except for 
 creditors. Stones v. Cooke, 8 Sim. 821, 
 Bouslough ii. Bouslough, 68 Pa. St. 
 
 1. Barber v. Barber, 21 How. (U. S.) 
 582. 
 
 2. Prescott v. Prescott, 59 Me. 146; 
 Coughlin V. Ehlert, 39 Mo. 285; Barker 
 v: Dayton, 28 Wis. 367; Damon v. Da- 
 mon, 28 Wis. 510. 
 
 3. Blake v. People, 80 111. n; Burrows 
 V. Purple, 107 Mass. 428. 
 
 4. Barker v. Dayton, 28 Wis. 367. 
 8. Call V. Call, 65 Me. 407. See Blake 
 
 V. People, 80 111. 1 1 ; Russell v. Russell, 
 69 Me. 336; Prescott v. Prescott, 59 Me. 
 146; 60 Me. 429; Burrows v. Purple, 107 
 Mass. 428; North v. North, 39 Mich. 67; 
 Waters v. Waters, 49 Mo. 385; Wooley 
 V. Wooley, Wright (Ohio), 245. Com- 
 pare Grove v. Grove, 68 Pa. St. 143. 
 
 6. Morton v. Morton, 4 Cush. (Mass.) 
 518; Bouslough V. Bouslough, 68 Pa. St. 
 495. But see Goss v. Goss, 29 Ga. 109. 
 
 7. Goss V. Goss, 29 Ga. 109; Daniels 
 V. Lindley, 44 Iowa, 367. See Waters v. 
 Waters. 49 Mo. 385; Bouslough v. Bous- 
 lough. 68 Pa. St. 495. 
 
 8. Blake v. People, 80 111. 11; Lock- 
 ridge V. Lockridge, 3 Dana(Ky.), 28, 30; 
 Guenther v. Guenther, 44 Wis. 354. 
 
 9. Holmes v. Holmes, 29 N. J. Eq. 9. 
 Bergen v. Bergen, 22 111. 187; Carey v. 
 Carey, 2 Daly, 424; Questel v. Questel, 
 Wright, 492; Stillman v. Stillman, 7 
 Baxt. 169, 186. 
 
 10. O'Callaghan j-. 0'Callaghan,69 111. 
 552; Russell V. Russell, 4 Greene (Iowa), 
 26; Holmes v. Holmes, 29 N. J. Eq. 9; 
 Olwar V. Hungerford, 10 Ohio St. 268; 
 Stillman v. Stillman, 7 Baxt. 169, 186; . 
 Blankenship v. Blankenship, 19 Kan. 
 
 159- 
 
 11. Perkins v. Perkins, 18 Cal. 60; 
 Cottrell V. Cottrell, 59 Cal. 417; Lyon v. 
 Lyon, 21 Conn. 185; Goss v. Goss, 29 
 Ga. 109; Blake v. People, 80 111. 11; 
 Andrews v. Andrews, 69 111. 609; 
 Wightman v. Wightman, 45 111. 
 
 483 
 
 495; Miller J/. Clark, 6 W. & S. (Pa.) 85. 
 
 Unless, of course, the decree reserves 
 it. Burr v. Burr, 7 Hill (N. Y.), 207. 
 
 Or it is regulated by statute. Miller v. 
 Clark, 23 Ind. 331. 
 
 Or the award was a sum in gross. 
 Miller v. Clark, 23 Ind. 331; Dinet v. 
 Engenham, 87 111. 275. 
 
 12. De Blanquiere v. De Blanquiere, 3 
 Hagg. Ec. 322; Dewees v. Dewees, 55 
 Miss, 315; Travers v. Travers, 31 Gratt. 
 (Va.) 283; McCurley v. Stockbridge, 62 
 Md. 422. See supra, note 11. 
 
 13. Usually regulated by statute. See 
 Stimson Amer. Statute Law, § 6266, for 
 references. 
 
 14. McGee v. McGee, 8 Ga. 295; By- 
 landt V. Bylandt, 6 N. J. Eq. 28; Lyon v. 
 Lyon, 21 Conn. 185; Harper v, Rooker, 
 52 111. 370; Bayly v. Bayly, 2 Md. Ch. 
 326; Yule V. Yule, 10 N. J. Eq. 138; 
 Kirby v. Kirby, i Paige (N. Y.), 261; 
 Denteriy. Denter, I Johns. Ch. (N. Y.)364; 
 Hammond v. Hammond, Clarke (Ohio), 
 151; Prather v. Prather, 4 Desaus. Eq. 
 
Dividing Property. 
 
 ALIMONY. 
 
 Dividing Property. 
 
 from alienating or charging his property.* Courts have also 
 charged it on husband's land,** appointed a receiver,^ assigned cer- 
 tain property in trust for wife,* and ordered husband to give se- 
 curity for payment.^ 
 
 Permanent alimony ceases generally upon the death of either 
 party,® or after reconciliation,'' or by statute upon the re-marriage 
 of the wife;* and if the alimony was granted with a divorce a mensa 
 et thoro, when they become divorced absolutely.* 
 
 13. Dividing Property. — By statutes in many of the States, not 
 otherwise, the court has the discretion to award specific prop- 
 erty in place of alimony proper,*^" thus dividing the property 
 between the husband and the wife.**^ In so doing they pro- 
 
 (S. Car.) 33; Devall v. Devall, 4 Desaus. 
 (S. Car.) 79. And see as to ecclesiasti- 
 cal law, 2 Bish. on M. & D. §§ 505, 508. 
 
 1. Goodrich v. Goodrich, 44 Ala. 670; 
 Norris v. Norris, 27 Ala. 519; Johnson 
 
 .V. Johnson, 59 Ga. 613; Gray v. Gray, 
 65 Ga. 193; Draper v. Draper, 68 111. 17; 
 Erlssman v. Erissman, 25 111. 136; Van- 
 'gant u. Vangant, 23 111. 536; Bergen v. 
 Bergen, 22 111. 187; Frankes v. Brown, 
 2 Blackf. (Ind.) 295; Wharton v. Whar- 
 ton, 57 Iowa, 696; Fischli v. Fischli, 2 
 Litt. (Ky.) 492; Gechter v. Gechter, 51 
 Md. 187, 190; Ricketts v. Ricketts, 4 
 Gill. (Md.) 105; Morrison v. Morrison, 
 49 N. H. 69; Kirby v. Kirby, i Paige 
 (N. Y.), 261; Laurie w. Laurie, 9 Paige 
 (N. Y.), 234; Rose V. Rose, 11 Paige (N. 
 Y.), 166; Carey v. Carey. 2 Daly (N. Y.), 
 424; Hammond v. Hammond, Clarke 
 (Ohio), 151; Gilmore v. Gilmore, 5 Jones 
 Eq. (N. Car.) 284; Tolerton v. Williard, 
 30 Ohio St. 579; Wilson v. Wilson, 
 Wright (Ohio), 128; Questel v. Questel, 
 Wright (Ohio), 492; Wilson v. Wilson, i 
 Desaus. Eq. (S. Car.) 219, 224; Stillman 
 V. Stillman, 6 Baxt. (Tenn.) 169; Boils v. 
 Boils, I Coldw. (Tenn.) 284. 
 
 An injunction when granted prevents 
 encumbrances and assignments. Van- 
 gant V. Vangant, 23 111. 536, 543. 
 
 And as to a bona-fide purchaser, see 
 Frankest'. Brown, 2Blackf.(Ind.)295, 99. 
 
 If an injunction is granted prohibiting 
 defendant from mortgaging his property, 
 it seems that this does not restrain him 
 from mortgaging real estate aside from 
 his homestead for the purpose of raising 
 money to pay alimony. Froman v. Fro- 
 man, 53 Mich. 581. 
 
 2. See ante, note 8, p. 483. See also 
 Foster v. Foster, 56 Vt. 540. 
 
 3. See ante, note 7, p. 483. 
 
 4. Madison!?. Madison, iWash.T. 73, 75. 
 6. Reiffenstein v. Hooper, 36 U. C. 
 
 Q. B. 295, 300. See Holmes v. Holmes, 
 29 N. J. Eq. 9, 12. 
 6. Rogers v. Viness, 6 Ired. (N. Car.) 
 
 293; Dewees v. Dewees, 55 Miss. 315; 
 Gaines v. Gaines, 9 B. Mon. (Ky.) 293; 
 Nary 7'. Nary, 41 Vt. 180; Taylor v. 
 Taylor, 93 N. Car. 418; Lennahan v. 
 O'Keefe, 107 111. 620. But see Smith v. 
 Banks, 73 Ga. 303. 
 
 7. Tiffin V. Tiffin 2 Binney (Pa), 202, 
 206; Lockridgez/. Lockridge, 3 Dana(Ky.), 
 28; Wallingsford v. Wallingsford, 6 H. & 
 J. (Md.) 485; Rogers v. Viness, 6 Ired. (N. 
 Car.) 293; Lockwood v. Krum, 34 Ohio 
 St. 2. See also Taylor v. Taylor, 93 N. 
 Car. 418. 
 
 8. La. Code, § 1196. And see Sidney 
 V. Sidney, 4 Swab. & T. 178; 2 Bish. on 
 M. & D. § 477. See also Stillman v. Still- 
 man, 99 111. 196. 
 
 9. Blaker v. Cooper, 7 S. & R. (Pa.) 
 500; Smith V. Smith, 2 S. & R. (Pa.) 248. 
 
 Of course if there was a division of the 
 property between the parties, no after- 
 conduct or decree could change this. 
 See ante, notes I, 2, 3, p. 481. 
 
 10. See statutes in various States, and 
 the following cases, which either explain 
 the statutes or deny the rights: Rob- 
 bins V. Robbins, iQi 111. 416; Wilson v. 
 Wilson, 102 111. 297; Lovett v. Lovett, 
 II Ala. 763; Quisenberry z/. Quisenberry, 
 I Duval, 197; Calame v. Calame, 25 
 N. J. Eq. 548; Brooks v. Arkeny, 7 
 Oregon, 461; Donovan v. Donovan, 20 
 Wis. 536; Bacon v. Bacon, 43 Wis. 197. 
 
 As to giving land to husband, see ante, 
 note 7, p. 478. 
 
 11. Smith V. Smith, 45 Ala. 264, 268'; 
 Plaster v. Plaster, 47 111. 290; Chum v. 
 Chum, Meigs (Tenn.) 131, Boggers v. 
 Boggers, 6 Baxt. (Tenn.) 299. See Var- 
 ney v. Varney, 58 Wis. 19. 
 
 And where specific property of the 
 husband is awarded to the wife it has 
 been held that the title still remained in 
 the husband, and would revert to him 
 on his wife's death or reconciUation. 
 Taylor v. Taylor, 43 N. Car. 418. 
 
 This however, is not thought to be 
 the general rule. 
 
 484 
 
Heaus of the Wife. 
 
 ALIMONY. 
 
 Faculties of the Huaband. 
 
 ceed upon the same principles that govern the award of ali- 
 mony.i 
 
 Other statutes provide for the restoration of the wife's property 
 upon divorce,* yet if the husband has settled property on the 
 wife, the court may not grant the divorce unless she will execute 
 a reconveyance of the property.^ 
 
 14. Means of the Wife. — The wife's means are what she has or 
 owns; the nature or source are immaterial: it may be separate 
 property or earnings, or she may be supported by her father, other 
 relatives, or second husband.* The general rule is, that if the 
 wife has sufficient means to support herself in the rank of Hfe to 
 which she belongs, no alimony, temporary or permanent, will 
 be awarded her.^ 
 
 15. Faculties of the Husband. — The husband's faculties are what 
 he has* or can acquire by labor, mental or physical.'' From this 
 his debts must be deducted,** and if then the husband cannot 
 
 1. Cases supra, for instance. 
 InVarneyz'. Varney, 58 Wis. ig. it was 
 
 held that the unchasity of the wife pre- 
 vious to marriage, though not aground for 
 dissolving the marriage, may be consid- 
 ered in the division of property. 
 
 2. Mass. P. S. 1882, p. 814; Grubb v. 
 Grubb, I Har. (Del.) 516; Flood v. 
 Flood, 5 Bush (Ky.), 167; Williams v. 
 Gooch, 5 Mete. (Ky.)486; Kreger v. Day, 
 2 Pick. (Mass.) 316; Dean v. Richmond, 
 5 Pick. (Mass.) 461; Dean v. Dean, 5 
 Pick. (Mass.) 428; Page v. Estes, 19 
 Pick. (Mass.) 269; Warner v. Warner, 
 33 Miss. 547; Wliittier v. Whittier, 31 
 N. H. 452; Vincent v. Parker, 7 Paige, 
 65; Sharp V, Sharp, 2 Sneed (Tenn.), 
 496; Jennings v. Montaigne, 2 Gratt. 
 (Va.) 350. 
 
 3. Oliver v. Oliver, 5 Ala. 75. And 
 see Orr v. Orr, 8 Bush (Ky.), 156; Ains- 
 worth V. Ainsworth, 37 Ga. 627. 
 
 4. Pinckard v. Pirickard, 22 Ga. 31; 
 Goodheim w. Goodheim, 2 Swab. 250; 
 Bremmer v. Bremmer, 3 Swab & T. 249; 
 Rose V. Rose, 11 Paige (N. Y.), 166; 
 Barnes v. Barnes, L. R. i P. & D. 506; 
 Powell V. Powell, L. R. 3 P. & D. 55, 
 186; Eaton V. Eaton, L. R. 2 P. & D. 
 51; Burrow v. Burrow, L. R. I P. & D. 
 554; Holt V. Holt, L. R. I P. & D. 610; 
 Stillman v. Stillman, 99 111. 196; George 
 V. George, L. R. i. P. & D. 556; Gardner 
 V. Gardner, 54 Ga. 560; Ressor v. Ressor, 
 82 111. 442; Brown v. Brown, 22 Mich. 
 242; Willing V. Willing, 16 N. J. Eq. 389. 
 
 5. D'Aguilar v. D'Aguilar, i Hagg. Ec. 
 773; Belcher v. Belcher, I Curt. Ec. 
 444; Westmeathj/. Westmeath, 3 Knapp, 
 42; Fyler v. Fyler, Deane & S. 175; 
 Sbules u. Soules, 3 U. C. Chan, iii; 
 Turner v. Turner, 44 Ala. 437; Morse 
 i/."M6rse, 25 Ind. 156; Kenemer v. 
 
 Kenemer, 26 Ind. 330; Logan v. Logan, 
 2 B. Mon. (Ky.) 142; Gaines v. Gaines, 
 9 B. Mon. (Ky.) 295; Coles v. Coles, 2 
 Md. Ch. 341; Daiger v. Daiger, 2 Md. 
 Ch. 331; Brown v. Brown, 22 Mich. 242; 
 Stevens v. Stevens, 49 Mich. 504; Porter 
 V. Porter, 41 Miss. 116; Collins v. Col- 
 lins, 2 Paige (N. Y.), 9, 10; Hoffman v. 
 Hoffman, 7 Rob. (N. Y.) 474; Maxwell v. 
 Maxwell, 28 Hun (N. Y.), 566; Col- 
 lins z. Collins, 80 N. Y. i; Miller v. 
 Miller, 75 N. Car. 70; Coad v. Coad. 40 
 Wis. 392. See cases supra. 
 
 Under statutes a portion of husband's 
 property may be given wife without re- 
 gard to her means. Wis. R. S. 1878, 
 § 2364; Damon v. Damon, 28 Wis. 510, 
 516; Tewksbury v, Tewksbury, 5 Miss. 
 I09i Rees v. Rees, 7 Oregon, 47. 
 
 6. Crampton v. Crampton, 32 L. J. 
 Mat. Cas. 142; Williams v. Williams, L. 
 R. I P. & D. 370; Campbell v. Camp- 
 bell, 37 Wis. 206; Fischli v. Fischli, i 
 Blackf. (Ind.) 360; Boggers v. Boggers, 
 6 Baxt. (Tenn.) 299; Russell v. Russell, 
 4 Green (Iowa), 26; Holmes v. Holmes, 
 29 N. J. Eq. g; Cox v. Cox, 20 Ohio St. 
 439; Prince v. Prince, i Rich. Eq. (S. 
 Car.) 282; Foote v. Foote, 22 111. 425; 
 Bailey v. Bailey, 21 Gratt. (Va.) 43. 
 Compare Stone v. St;one, 3 Curt. Ec. 341 ; 
 Beavan v. Beavan, 8 Jur. N. S. 769; 
 Bouere v. Bouere, i Curt. Ec. 506. 
 
 7. Muse V. Muse, 84 N. Car. 35; 
 Campbell v. Camptjell, 37 Wis. 20fl; 
 Holmes v. Holmes, 29 N. J. Eq. 9; 
 Thompson v. Thompson, L. R. I P. & 
 
 D- 553- 
 
 8. Foster v. Foster, 2 Swab & T. 553; 
 Nokes V. Nokes, 3 Swab & T. 529; Car- 
 ithers v. Venable, 52 Ga. 389; Spencer 
 V. Spencer, 9 R. I. 150. See also For- 
 man v. Forman, 109 III. 63. 
 
 I C. of L.— 32 
 
 485 
 
ALIMONY— ALIUNDE— ALL. 
 
 support his wife no alimony, temporary or permanent, will be de- 
 creed against him.* If he is complainant, however, and cannot 
 give the wife zWxwox^y pendente lite, the court will not permit him 
 to proceed until he has made some provision for her.* 
 
 16. Costs. — These are usually payable by the husband if the 
 wife prevail ;^ and even if he prevail,* in many cases, until the 
 wife has a separate estate' or is suing by a next friend.* 
 
 ALIUNDE.— Independent of.'' 
 
 ALL. — This word is of constant occurrence in deeds, wills, and 
 other instruments, and, especially in wills, has been made the sub- 
 ject of repeated construction by the courts. It generally means 
 "the whole of; every one of;" but it is often limited by the con- 
 text to the whole of a particular class only.** 
 
 1. Bouere v. Bouere, i Curt. Ec. 566; 
 Godall V. Godall, 2 Lee, 264; Fletcher v. 
 Fletcher, 31 L. J. Mat. Cas. 82; Gaynor 
 V. Gaynor, 32 L. J. Mat. Cas. 144; Brown 
 V. Brown, 32 L. J. Mat. Cas. 144; 
 Crampton v. Crampton, 32 L. J. Mat. 
 Cas. 142; Capstick tj. Capstick, 33 L. J. 
 Mat. Cas. 105; Nokes v. Nokes, 32 L. J. 
 Mat. Cas. 24; Soules v. Soules, 3 V. C. 
 Chan. 113; Eidenmuller v. Eidenmuller, 
 37 Cal. 364; Phelan ij. Phelan, 12 Fla. 449; 
 Carlton v. Carlton, 44^Ga. 216; Foote v. 
 Foote, 22 111. 425; McCrocklin v. Mc- 
 Crocklin, 2 B. Mon. (Ky.) 370; Russell 
 V. Russell, 69 Me. 336; Wallingsford v. 
 Wallingsford, 6 Hor. & J. (Md.) 485; 
 Feighley v. Feighley, 7 Md. 537, 563; 
 Stuart V. Stuart, 127 Mass. 370; Bursler 
 ■u. Bursler, 5 Pick. (Mass.) 427; Burrows 
 ■V. Purple, 107 Mass. 428, 475; Graves v. 
 Graves, 108 Mass. 314; Bankston v. 
 Bankston, 27 Mass. 692; Tewksbury v. 
 Tewksbury, 5 Miss. 109; Schmidt v. 
 Schmidt, 26 Mo. 235; Mangels v. Man- 
 gels, 6 Mo. App. 481; Holmes v. 
 Holmes, 29 N. J. Eq. g; Purcell v. Pur- 
 cell, 3 Edw. Ch. (N. Y.) 194; Kittle v. 
 Kittle, 8 Daly (N. Y.), 72; Strorbridge 
 ». Strorbridge, 21 Hun (N. Y.). 288; 
 Muse V. Muse, 84 N. Car. 35; Miller v. 
 Miller, 75 N. Car. 70; Thayer o. Thayer, 
 9 R. I. 377; Battey v. Battey, i R. I. 
 212; Prince v. Prince, I Rich. Eq. (S. 
 Car.) 282; Wright w., Wright, 3 Tex. 168, 
 179; Bailey v. Bailey, 2i Gratt. (Va.) 47; 
 Campbell v. Campbell, 37 Wis. 206. 
 
 2. Ka.ye v. Kaye, 4 Swab & T. 239, 
 240; Symonds v. Symonds, 2 Swab & 
 T. 435, 436; D'Aguilar v. D'Aguilar, i 
 Hagg. Ec. 773; McKay v. McKay, 6 V. 
 C. Chan. 380, 383; Masser v. Masser, 
 29 Ala. 313; Richardson v. Richardson, 
 4 Port. (Ala.) 467; Thornberry v. Thorn- 
 berry, 2 J. J. Marsh. (Ky.) 322; Stevens 
 V. Stevens, i Metcalf, 279; De Rose v. 
 De Rose, Hopk. 100; Graves v. Graves, 
 
 486 
 
 2 Paige (N. Y.), 62; Williamson v. Wil- 
 liamson, I Johns. Ch. (N. Y.) 488. 
 
 3. Richardson v. Richardson, 4 Port. 
 (Ala.) 467- 
 
 4. De Rose v. De Rose, Hopk. 100. 
 See also Wood v. Wood, 29 Ga. 281. 
 
 6. Jones v. Fawcett, 2 Phill. Ch. (N. 
 Car.) 278; Masser v. Masser, 29 Ala. 
 313; Cornelius v. Cornelius, 31 Ala. 479; 
 Hughes V. Hughes, 44 Ala. 698; Ward 
 V. Ward, 2 Dev. Eq. (N. Car.) 553. 
 
 6. See, on general subject of costs, chap. 
 XXV., Bish. on M. & D. ; 2 Bish. M. & D. 
 §§ ^t^etseq. 
 
 Beferences for Alimony. — Bishop on 
 Marriage and Divorce, 6th Ed. ; Stewart 
 on Marriage and Divorce, 4th Ed.; Stim- 
 son's American Statute Law; Browne's 
 Digest of Divorce and Alimony. 
 
 7. As "Nothing is said in the deed it- 
 self, nor proved aliunde, about the con- 
 veyance of a lien for money." Sherwood 
 w. Waller, 20 Conn. 271. 
 
 8. It is often carelessly used in written 
 instruments, and requires to be qualified 
 and limited to the subject-matter. Thus, 
 where a statute provided that "'in all 
 cases ' where a levy is made on property 
 which is claimed by a third person, and 
 good and sufficient security is tendered 
 by the party claiming the same, it shall 
 be the duty of the sherifif to leave the 
 same in possession of such claimant," it 
 was held that these words, "in all cases," 
 only meant iu all cases in which the de- 
 fendant is the claimant. "True," said 
 the court, "it says that in 'all' cases 
 where a levy is made, etc. One is 
 amazed, in casting a glance over our 
 statute-book, to find how often this form 
 of expression occurs, frequently signify- 
 ing, as here, not absolutely all, but all of 
 a particular class only. Indeed, it seems 
 to be common to all writings, lay as well 
 as legal, sacred as well as profane. And 
 the generality of the phrase is frequently 
 
tiOiiatractioiis. 
 
 ALL. 
 
 InWills. 
 
 to be restrained in an act, not only by 
 the context, but by the general form and 
 scheme of the statute, as demonstrative 
 of the intention of the legislature. Here 
 it means, in all cases where the claimant 
 is in possession of the property he shall 
 not be deprived of it, but it shall be left 
 with him." " It is made the duty of the 
 sheriff to leave the property with the 
 ■claimant. How could this be done un- 
 less it had been previously found there? 
 Under the view contended for by counsel 
 for the relator, other phraseology would 
 have been used. It would have been made 
 the duty of the levying officer to deliver 
 or turn over the property to the claimant, 
 not leave it with him." Phillips w. State 
 exrel. Saunders et al., 15 Ga. 518. 
 
 So in an action on the case by a com- 
 moner for disturbing his common by 
 putting on cattle, where the plea was a 
 right of common appurtenant for cattle 
 levant and couchant; and a replication 
 was filed, with conclusion to the country 
 that "all the said cattle in the said dec- 
 laration mentioned" were not defendant's 
 own commonable cattle levant and couch- 
 ant, the word ''aU" was interpreted to 
 mean that the levancy and couchancy 
 was untruly alleged as to all the cattle, 
 not that it was truly alleged of some and 
 falsely of others. For if the latter, it 
 should have been expressly averred, and 
 the word "all," being in the replication 
 quite ambiguous, must be taken most 
 strongly against the party pleading; and 
 as the plaintiff's opening showed that the 
 •defendant had a right to some common- 
 able cattle, the court directed a verdiqt 
 for the defendant. Bowen v. Jenkin, 6 
 Ad. & El. 905. 
 
 Where an act provided ' ' that all la- 
 borers who shall perform work and labor 
 for any person under a written or verbal 
 contract, if unpaid for the same, shall 
 have an absolute lien on the production 
 of their labor for such work and labor, " 
 it was held that, the lien being only on 
 the "production of their labor," the act 
 had reference only to, movable property 
 and the labor performed thereon, and 
 that the word "all" as used in the act 
 -was not to be construed literally, as giv- 
 ing to every laborer a lien for his labor. 
 Dano V. M. O. & R. R. R. Co., 27 Ark. 
 
 ■564. 
 
 Where a New Jersey statute had in 
 two sections modified the common law of 
 "distraint" so as to allow the landlord 
 to distrain on the goods and chattels, 
 hogs, horses, cattle, and stock of his 
 tenant, but not of any other person, and 
 then provided that the landlord might 
 seize " all or any wheat, rye, etc., or any 
 
 other produce whatever growing or being 
 on the premises," it was held that the 
 power of distress, as to such articles, is 
 not limited to grain growing or being on 
 the premises, belonging exclusively to 
 the tenant. Guest v. Ojidyke, 2 Vroom 
 (N. J.), 552. 
 
 Though negotiable paper not due is 
 liable to attachment under the act 16th 
 June, 1836, relative to executions, which 
 provides that "from and after the service 
 of such writs all debts, etc., shall remain 
 attached," yet a bona-fide holder for value 
 who has purchased subsequent to the at- 
 tachment, but without notice thereof, will 
 be protected; "for," says Lowrie, J., 
 ' ■ care is to be taken that laws of general 
 shall not be regarded as of universal ap- 
 plication ; and this caution is required in 
 relation to the law for attaching debts in 
 execution, and declaring that ' all debts' 
 so attached shall remain in the hands of 
 the garnishee to answer the debt. In acts 
 of Assembly, as well as in common par- 
 lance, the word ' all ' is a general rather 
 than a universal term, and is to be under- 
 stood, in one sense or the other, accord- 
 ing to the demands of sound reason. It 
 is certainly broad enough to include debts 
 by bills of exchange and promissory 
 notes, and there is nothing in their nature 
 that excludes them from its operation. 
 But they have a legal quality that renders 
 the hold of an attachment upon them 
 very uncertain. Unlike all other prop- 
 erty, they carry there their whole evi- 
 dence of title on their face; and the law 
 assures the right to him who obtains 
 them for valuable consideration by reg- 
 ular indorsement, and without actual 
 notice of any adverse claim, or of such 
 suspicious circumstances as should lead 
 to inquiry. To hold that an attachment 
 prevents a subsequent bona-fide indorsee 
 for value from acquiring a good title 
 would be almost a destruction of one of 
 the essential characteristics of negotiable 
 paper." Kieffer v. Ehler, r8 Pa. St. 388; 
 Cf. Stone v. Elliott, 11 Ohio St. 252. 
 
 Under a policy of fire insurance which 
 insures a certain sum " on all or either" 
 of certain specified buildings, the insurers 
 are liable for the full amount of a loss, 
 not exceeding the sum insured, occa- 
 sioned by the burning of a single one of 
 the buildings. Com. v. Hide and Leather 
 Ins. Co., 127 Mass. 136; s. c, 17 Am. 
 Rep. 72. 
 
 Wills. — "All" has received frequent 
 interpretation by the courts when used in 
 wills, its meaning depending largely upon 
 each individual case. Thus the question 
 whether the words "all my estate and 
 effects " will include real estate or not 
 
 487 
 
Constmctions, 
 
 ALL. 
 
 In -Wills. 
 
 Wills — Continued. 
 
 depends, first, upon the immediate con- 
 text of the will; secondly, upon the gen- 
 eral form and scheme of the will, as 
 demonstrating the intention. Woolam 
 V. Kenworthy, 9 Vesey, Jr., 137. Cf. 
 Wilde V. Holtzmeyer, 5 Vesey, Jr., 811. 
 
 "All my estate," in a will, has been 
 held to carry a fee; for an estate for life 
 or in tail would not be the donor's estate, 
 but a new and a less estate. Bridgewater 
 V. Bolton, 6 Mod. 106, no; Barnes v. 
 Patch, 8 Vesey, Jr., 604; Kellogg v. Blair, 
 6 Mete. (Mass.) 322; Godfrey v. Hum- 
 phrey, 18 Pick. (Mass.) 537. 
 
 Extended to "all my plantation." 
 French v. Mcllhenny, 2 Binney (Pa.), 12. 
 Contra as to "all my homestead farm." 
 Terrill v. Sayre, 2 Penn. (N. J.) 598. 
 
 "All my freehold property" passes a 
 fee. Roe v. Patterson, 16 East, 221. 
 
 "All my property both personal and 
 real, forever," passes a fee, Dacre v. 
 Roper, II East, 518. 
 
 Under a devise, "all my property, 
 etc.," real estate passes. Morgan v. Mor- 
 gan, 6 B. & C. 512; Mayo v. Carrington, 
 4 Call (Va.), 472; s. c, 2 Am. Dec. 581. 
 
 " All my lands '"' passes a fee. Kennon 
 V. McRobprts, i Wash. (Va.) [96] 126. 
 But does not include lands mortgaged to 
 the devisor. Winson v. Littleton, i Ver- 
 non, 3. Contra, where the mortgage is 
 all the devisor has in lands, i Harr. & 
 McH.(Md.) 565. Cf. Ballard v. Carter, 5 
 Pick. (Mass.) 112; s. c, 16 Am. Dec. 
 
 377- 
 
 " All my real property," in a will, has 
 been held to import the same as "all my 
 estate." Nicholls v. Butcher, 18 Vesey, 
 
 Jr-. 193- 
 
 ' ' Whatsoever else I have in the world " 
 will pass a fee. Hopewell v. Ackland, i 
 Comyn, 168. 
 
 But a will wherein the testator says, 
 " I give all to my mother," will not pass 
 lands. Bowman v. Milbanke, i LeV. 141. 
 
 A devise of "all my landed estate," 
 followed by a description of several tracts 
 of land, will not pass a lot not described. 
 Myers v. Myers, 2 McCord Ch. (S. Car.) 
 214; s. c, 16 Am. Dec. 648. 
 
 "AH my estate whatsoever," in a will, 
 comprehends all that the devisor has, real 
 or personal. Scott v. Alberry, i Comyn, 
 
 337- 
 
 "All the estate, both real and per- 
 sonal," to which the grantor is "entitled 
 in law or equity, in possession, remainder, 
 or reversion," passes the grantor's whole 
 estate. Mundy v. Vawter, 3 Grattan 
 (Va.), 518; Godfrey v. Humphrey, 18 
 Pick. (Mass.) 537. 
 
 So "all my real and personal prop- 
 
 erty." Morrison v. Semple, 6 Binney 
 (Pa.), 94. 
 
 The words "all his estate" will pass 
 everything a man has; but if the word 
 ' ' all " is coupled with the word " per- 
 sonal," or a local description, then the 
 gift will pass only personalty or the spe- 
 cific estate particularly described. Hogan 
 V. Jackson, 1 Cowper, 299, 306. 
 
 Under a bequest to a daughter of "all 
 goods and things of every kind and sort 
 whatever which shall be found in her 
 closet," at grantor's death, money found 
 there will not pass. Roberts v. KufBn, 
 2 Atkyns, 113. 
 
 But "all my estate, real and personal 
 whatever," carries a fee, although imme- 
 diately followed by words descriptive of 
 local situation; as, " that is to say, my 
 land, houses, and all the other buildings 
 situate." A. S. Denn v. Hood, 7 Taun- 
 ton, 35; Child V. Wright, 8 Term (Durn- 
 ford & East.), 64. Cf. Jackson v. Bab- 
 cock, 12 Johns. (N. Y.) 389; Lambert's 
 Admr. v. Paine, 3 Cranch. (U. S.) 97. 
 
 "All I am worth," without other words 
 to control them, will pass real as well as 
 personal estate. Huxtep v. Brooman, i 
 Brown Ch. Cas. 437. 
 
 "All and every my property'' is as 
 comprehensive as "all I am worth." 
 Wall V. Langlands, 14 East. 370; Rossitet 
 V. Simmons, 6 S. & R. (Pa.) 452. 
 
 Where the devise was " my late pur- 
 chase from E. C. , " and the land purchased 
 from E. C. was purchased in fee simple, 
 held, that a fee simple passed to the 
 devisee. Neide v. Neide, 4 Rawle (Pa.), 
 75- . . • 
 
 A devise of "all my property," certain 
 described portions excepted, is a general 
 devise. Mayo v. Bland, 4 Maryland Ch. 
 Dec. 484; Roseboom v. Roseboom, 81 N. 
 Y. 356; Howland v. Howland, 100 Mass. 
 222; Piatt V. Sinton, 37 Ohio St. 353. 
 
 "All my personal estate," in a will, 
 was held to be confined to such part only 
 as should not be otherwise disposed of. 
 Burdett v. Young, 9 Mod. 93. 
 
 But " all my temporal estate" has been 
 held to pass a fee, as being equal to " all 
 my worldly estate;" {hat is, all that a man 
 has in the world, and including both real 
 and personal estate. Tanner v. Wise, 3 
 P. Wms. 295. 
 
 And a second clause in a will disposing 
 of '•' all my real " estate was held not to 
 revoke a previous devise of certain real 
 estate for life, with remainder over. 
 Snape v. Nevill, 11 Q. B. 467; Algop v. 
 Russell, 38 Conn. 99. ... 
 
 The words "all I am possessed of" 
 have been confined to a specific bequest 
 
 488 
 
Clonstnictiaiis. 
 
 ALL. 
 
 In other Instruments. 
 
 "Wills — Continued. 
 
 of stock immediately preceding, where 
 the whole tenor of the will has shown 
 that they could not be given their usual 
 sense. Wilde v. Holtzmeyer, 5 Vesey, 
 Jr., 811. 
 
 But where this is not the case they are 
 sufficient to pass real estate. Tolar v. 
 Tolar, 3 Hawks. (N. Car.) 74 ; s. t. , 14 Am. 
 Dec. 575. 
 
 "All my property of every descrip- 
 tion," in a will, passes not only tangible 
 property, but money, stoqks, bonds, 
 ■choses in action. Hurdle v. Outlaw, 2 
 Jones Eq. (N. Car.) 75. So also " all my 
 personal property of every name or na- 
 ture." Sherman, Admr., v. Lodge's Es- 
 tate. 28 Vt. 26. Cf. Wolf V. Schaeffner, 
 SI Wis. 53. And "all my books and 
 papers of every description." Perkins tj. 
 Mathes, 49 N. H. 107. 
 
 In a will, the words "all my notes" 
 include bonds as well as notes, but not 
 judgments upon either. Perry v. Max- 
 well, 2 Dev. Eq. (N. Car.) 488, 496. 
 
 But "I give all in Suffolk" does not 
 pass a bond which happened to be at 
 testator's house in Suffolk; for choses in 
 action have no locality. Moore v. Moore, 
 I Brown's Ch. Cas. 127. 
 
 Bank-notes will pass under such a be- 
 quest. Popham .J/. Lady Aylesbury, 
 Ambl. 68. But see Shearl v. Marquess 
 of Bute, II Vesey, Jr., 662. 
 
 A bequest of " all my accounts " does 
 npt pass a deposit in a savings bank. 
 •Gale V. Drake, 51 N. H. 78. 
 
 "All the money" in a will has been 
 held to mean not only the money that 
 might be on hand, but all iiivestments of 
 money under the directions of the will 
 that should stand in the place of and be 
 convertible into money. Hollingsworth 
 V. Hollingsworth, 65 Ala. 321. 
 
 " AH my furniture and other household 
 effects " will not include articles of con- 
 sumption. Foxall V. McKenny, 3 Cranch. 
 C. C. (U. S.) 206. 
 
 All the Best and Besidue. — These and 
 kindred words are continually used in 
 wills in what is called the residuary 
 clause, to denote what is left after certain 
 specific bequests and devises. Graydon 
 V. Graydon, 8 "C. E. Green (N. J.), 229; 
 Walker v. Stewart, L. R. 17 Ch. Div. 
 819. 
 
 The words " all the rest " are sufficient 
 to pass all the rest of the property, real 
 as well as personal. Attree v. Attree, L. 
 R. II Eq. Cas. 280. 
 
 Such words will pass a freehold. Dob- 
 :Son V. Bowners, L. R. 5 Eq.Cas. 404. 
 
 Aiid also contingent interests and 
 
 remainders. Cruger v. Heyward, 2 Des. 
 (S. Car.) 422. 
 
 In an administration bond for the 
 proper distribution of " all the rest and 
 residue," this phrase means, what remains 
 after payment of debts. Carrol v. Con- 
 net, 2 J. J. Marsh. (Ky.) 195, 201. 
 
 "All" in other Instruments — The use 
 of " all " in instruments other than wills is 
 very common, and has received frequent 
 construction by the courts.. Thus, "in 
 all cases," in a statute, has been limited 
 to all of a particular class of cases. Flake 
 ■V. Van Wagenen, 54 N. Y. 25; Jackson v. 
 Reeves, 53 Ind. 231; Gilbert v. Neely, 35 
 Ark. 24; Clore v. Graham, 64 Mo. 249; 
 Brinsfield v. Austin, 39 Ala. 227. Com- 
 pare Ex-p. Ezell, 40 Tex. 451; In re Dole, 
 II Blatch. (U. S.) 499. 
 
 Arbitration and Award. — In a submis- 
 sion to arbitration, "all matters in dis- 
 pute " has been held sufficient to sustain 
 an award. Shackelford v. Purket, 2 A. 
 K. Marsh. (Ky.) 435; s. c, 12 Am. Dec. 
 422; Hoover v. Neighbours, 64 N. Car. 
 429; Bryant v. Fisher, 85 N. Car. 69. 
 
 See Young v. Shook, 4 Rawle (Pa.), 
 299; Gratz V. Gratz, 4 Rawle (Pa.), 411; 
 and Bachman u. Reigart, 3 Penrose & 
 Watts (Pa.), 270, on the addition of the 
 words in the cause or between the 
 parties. 
 
 So "all demands" will support an 
 award. Byers v. Vandeulen, 5 Wend. 
 (N. Y.) 268. 
 
 And will include questions concerning 
 real as well as personal property. Sellick 
 V, Addams, 15 Johns. (N. Y.) 197, 
 
 And also costs. Young v. Shook, 4 
 Rawle (Pa.), 299. 
 
 But it will not prevent one of the par- 
 ties from showing that a particular 
 demand, not being in dispute, was not 
 laid before the referees. Webster v, Lee, 
 5 Mass. 334. 
 
 All Faults. — If goods are sold with 
 "all faults," parol evidence is admissible 
 to show that these words have a well- 
 established meaning in the trade in such 
 goods, and what that meaning is. But 
 the phrase "with all faults" cannot be 
 limited to all such faults or defects as the 
 thing described ordinarily has. That 
 would be to deprive it of force entirely. 
 Its meaning is, such faults or defects as 
 the article sold might have, retaining still 
 its character and identity as the article 
 described. Whitney v. Boardman, 118 
 Mass. 242. 
 
 AH Fours — Two decisions or cases 
 which are alike in all material respects 
 are said to run upon "all fours." 
 
 489 
 
ALLEGIANCE— ALLOCA TUR— ALLODIAL. 
 
 ALLEGIANCE (see also CITIZENSHIP; NATURALIZATION), other- 
 wise called ligeance, is the obligation or tie existing between the 
 ■ sovereign and the subjects of any given state, and may be described 
 as the lawful and faithful obedience and duty which the subjects 
 of every state owe to the head of that state in return for the 
 protection which the state affords to them. The learning on this, 
 subject will be found in Calvin's Case,^ and in the notes to that 
 case in Broom's Const. Law. Jt is there said that allegiance is of 
 four kinds, namely : (i) natural allegiance — that which arises by 
 nature and birth ; (2) acquired allegiance — that arising through 
 some circumstance or act other than birth, e.g., by denization or 
 naturalization ; (3) local allegiance — that arising from residfence 
 simply within the country, for however short a time ; and (4) legal 
 allegiance — that arising from oath taken usually at the town or 
 leet ; for by the common law the oath of allegiance might 
 be tendered to every one upon attaining the age of twelve, 
 years.* 
 
 ALLOCATUR (Lat., it is allowed). — A word formerly written 
 on a writ or order by the judge granting the same to signify his 
 approval ; hence, the term by which the master's or prothonotary's 
 allowance of a sum referred to his consideration is called, whether 
 touching costs, damages, or matter of account.^ 
 
 Especially used in modern English practice to signify the 
 certificate of a master as to the result of a taxatida of costs.* 
 
 ALLODIAL.— Definition.— As applied to lands, allodial signifies 
 " held by an absolute ownership, without recognizing any supe- 
 rior to whom any duty is due on account thereof," as distin~ 
 guished from feudal, where the property in lands was held to re- 
 side in the king or lord paramount, who granted out the use 
 thereof to others who were permitted to hold them upon condi- 
 tion of performing certain duties and services for their superior. ** 
 ' Incidents. — Allodial or boc-Iands, as they were called, were alien- 
 able at the will of the owner by sale, gift, or last will. They were 
 liable for his debts, and descended, if undevised, to his heirs with- 
 out respect to primogeniture. They might be granted absolutely 
 or for a limited interest, on any conditions or services the grantor 
 thought proper, and for any estate, to take effect at once or at a 
 future time, or on the happening of some event. They were fre- 
 quently entailed, and marriage settlements thereof were also com- 
 mon. They were conveyed by the delivery of a symbol of pos- 
 session, as a twig or turf; or by a writing or charter called a 
 
 1, Calvin v. Smith. 7 Rep. i; 6 Jac. i. receives. It may be an absolute and 
 
 2. Brown's Law Diet. (Sprague's Ed.); permanent obligation, or it may be quali- 
 8 Opin. Atty.Genl. 139; 9 Opin. Atty.- fied and temporary. Carlisle v. U. S., 16 
 Genl. 356. Wall. (U. S.) 147. 
 
 The Obligation of fidelity and obedience 3. Lee's Diet, 
 which the individual owes to the govern- 4. Arehb. Pr. I2g. . -■ 
 
 ment under which he lives, or to his sov- 6. i. Washb. on Real Prop. (4th ed.^ 
 ereign, in return for the protection he 16-18. 
 
 490 
 
ALLODIAL— ALLONGE— ALLOTMENT. 
 
 land-boc, and deposited generally in a monastery for safe- 
 keeping.* 
 
 History. — The tenures existing throughout civilized Europe 
 before the introduction of the feudal system were allodial. In 
 England they were not abolished entirely till the time of the 
 Conqueror, who introduced the system of feuds in its rigor. By 
 the statute of 12 Car. II. most of the existing feudal tenures, and 
 the services incident thereto, were swept away and free and com- 
 mon socage became and continues to be to this day the principal 
 kind of tenure, the whole system being thus feudal at least in 
 theory.** The charters of the early colonies (among them Massa- 
 chusetts, Rhode Island, Connecticut, Pennsylvania, Maryland, 
 Virginia, the Carolinas, and Georgia) generally prescribed that 
 lands should be held of the crown " in free and common socage, 
 and not in capite by knight-service," and in them this tenure dif- 
 fered from allodial only in recognizing in theory the doctrine of 
 fealty.^ Since the Revolution, however, the tenures in most of 
 the States have been rendered by statute or declared by the 
 courts allodial,* although many names and even rules of purely 
 feudal origin still exist, principally in the forms and methods of 
 conveyance. ** 
 
 ALLONGE. — A paper attached to and made a pari; of a promis- 
 sory note or bill of exchange on .which an indorsement may be 
 written wherever for some reason it is inconvenient to write on 
 the back of the note the contract between the parties and at the 
 same time that contract is one which, if on the note, would pass 
 the title.^ 
 
 ALLOTMENT. — The setting apart and apportioning of property 
 held formerly by joint owners, so that each one may hold in 
 severalty his own specific share.'' Also, the portion so set apart.* 
 
 1. See on this subject i. Spence Eq. 7. Rap. & Lawr. Diet.; Glenn v. 
 Juris. 19-125; Digby on Real Property, Glenn, 41 Ala. 571. 
 
 chap. i. § I. 8. See Gen. Inclosure Act, 8 and 9 
 
 2. 2 B"lack. Com. 47, 77-79- Vic. c. 118, §8 72, 73, 74. 
 
 3. Williams on Real Prop.(6th ed.)6, n. "Allotment with "Award." — By an 
 
 4. In Louisiana (Xiques v. Bujac, 7 Inclosure Act the commissioners were 
 La. Ann. 172). Pennsylvania (Wallace v. required to "set out, allot, and award" 
 Harmstad, 44 Pa. St. 500X Virginia (Acts to the impropriate rectors and curate, in 
 of 1785), Maryland (Matthews v. Ward, lien of tithes, etc., certain plots, and to. 
 10 Gill. & J. 443), New York (Const, of distinguish and separate the several al- 
 1846, art. I. §§ 12, 13; Cornell v. Lamb, lotments; and "the same allotments" were 
 2 Cow. 652; Van Rensselaer v. Hayes, declared to be in full discharge of all 
 19 N. Y. 92), Connecticut (Rev. Laws tithes. Held, that this latter phrase 
 1849, P' 454)> Wisconsin (Rev. Stat, referred to and included the award, and 
 1849. ^'■t- '• § ^4- ^^^ Barker w. Dayton, that the tithes were not extinguished by 
 28 Wis. 367), New Jersey (Rev. Stat, setting out and allotting the lands with- 
 1877, p. i66, § 73). out an award. Ellis v. Arnison, 5 B. & 
 
 5. See 2 Shars. Black. Com. 77, n; i Aid. 47. 
 
 Smith's Land. & Ten. (Morris's Ed.) 6, n. But where there was a provision that 
 
 6. Crosby v. Roub, 16 Wis. 616, See the portions which by the act were to 
 also Folger -o. Chase, 18 Pick. (Mass.) be "allotted and awarded " immediately 
 63. after such allotments are made should 
 
 491 
 
Constructions. 
 
 ALLOTMENT— ALLO W. 
 
 Constructions. 
 
 Of Shares in a Corporation. — This takes place where shares in 
 excess of the amount autliorized in the charter are subscribed for 
 and an apportionment is provided for by law, the contract being 
 incomplete and the subscribers not being present shareholders 
 until such allotment has been made. Otherwise where there is no 
 such provision, in which case all subscriptions beyond the author- 
 ized number are void ab initio.'*- 
 
 Allotment-note. — In merchant-shipping, a note made by a sea- 
 man stipulating for the payment of his wages by his employers to 
 certain persons, in fixed instalments, at particular times.* 
 
 ALLOW. — To permit, consent to, or approve, as an account ; to 
 admit the validity of something contested between the parties, as 
 a demurrer or plea, an appeal, exceptions, a claim against an 
 estate in administration ; to permit to have, as costs, compensa- 
 tion ; to give a fit portion out of a larger property or fund, as 
 alimony, a sum for maintenance, etc.* 
 
 "be, remain, and enure to the several by way of compensation for another 
 
 persons to whom the same shall be 
 respectively allotted, who shall from 
 thenceforth stand and be seized and 
 possessed thereof to such and the same 
 uses" as the lands in lieu of which they 
 were made, held, that one who was 
 seized in fee of this latter land became 
 so of the former immediately after the 
 allotment and before execution of the 
 award. Doe v. Saunders, 5 A. & EU. 
 664. 
 
 Allotment of Dower. — Where the 
 constitution gave the Probate Court 
 jurisdiction in "all matters of the allot- 
 ment of dower," "allotment" was defined 
 as " an apportionment of the interest of 
 one or more parties entitled to a share 
 of the estate," and the clause was held 
 not to confer jurisdiction over the ' ' rights 
 of strangers claiming title to the land 
 adversely to the deceased and his repre- 
 sentatives." Jiggittsw. Bennett, 31 Miss. 
 610. 
 
 "Allot " and " Allow." — It was provided 
 by statute that if a widow's separate 
 estate should be less than her dower 
 interest in and distributive share of her 
 husband's estate, so much "must be 
 allowed her" as, with her separate estate, 
 would be equal to her dower and distri- 
 butive share. Held, that " allowed " was 
 an appropriate word where an allowance 
 of money is made in lieu of dower, or as 
 compensation, and that if " allotted " had 
 been used it would have meant that she 
 should have had the balance due her in 
 land. " To allot is usually understood 
 as to set apart a portion of a particular 
 thing or things to some person," while 
 "allowed means something substituted 
 
 498 
 
 thing." Glenn v. Glenn, 41 Ala. 571. 
 
 In Treaties with the Indians. — In treat- 
 ies made with reference to lands guaran- 
 teed to the Indians, ' ' allotted " was said to 
 indicate not " a favor conferred," but "a 
 right acknowledged." Worcester &. State 
 of Georgia, 6 Pet. (U. S.) 582. 
 
 1. Walker v. Devereaux, 4 Paige (N. 
 Y.), 22q; Crocker v. Crane, 21 Wend. (N. 
 Y.) 211. See Buffalo, etc., R. Co. v. 
 Dudley, 14. N. Y. 336; Dan bury & Nor- 
 walk R. Co. V. Wilson, 22 Conn. 436. 
 
 3. Maclachlan on Merch. Ship. 207. 
 
 3. Rap. & Lawr. Law Diet.; Abb. L. 
 Diet. , 
 
 Allow or Permit. — To support a plea 
 that the trustees under a private act of 
 Parliament did not " allow or permit" 
 the defendant to exercise a certain exclu- 
 sive right, it is necessary to prove some 
 positive act of obstruction on their part; 
 and it is not enough to prove that a third 
 patty took it away, he having a right to 
 it. Townson 11. Green, 2 Car. & P. no. 
 
 Forty Days shall be Allowed. — Where 
 it was covenanted in a charier-party that 
 "forty days shall be allowed for unload- 
 ing and loading again," held, that a 
 detention of the vessel beyond that period 
 by reason of the crowded state of the 
 docks was a breach of the covenant. 
 Randall v. Lynch, 2 Camp. 352. 
 
 Examine, Settle, and Allow Accounts. 
 — The power given to the board of super- 
 visors of a county to "examine, settle, 
 and allow" all accounts chargeable against 
 such county involves also the right to 
 reject if sufiicient reasons for allowing 
 are not presented. People v. Superv'rs 
 of Dutchess, 9 Wend. (N. Y.) 508. 
 
Constructions. 
 
 ALLO W—ALLO WANCE. 
 
 Constructions, 
 
 ALLOWANCE. — The act of permitting or admitting the validity 
 of ; also, a portion or share given, as to children, married women, 
 guardians, trustees, executors, etc.* 
 
 Allowing all People to Pass and Be- 
 pass. — It was held with reference to a 
 deed in which these words were contained 
 that the very term "allowing" presup- 
 posed " the absence of a right to pass and 
 repass without the permission of the 
 grantee." Parsons v. Miller, 15 Wend. 
 (N. Y.) 564. 
 
 Verdict Allowed and Recorded. — A stat- 
 ute gave the /ight to take damages 
 in gross "at any time within three 
 months after the verdict is allowed and 
 recorded." Held, that the verdict was 
 not "allowed and recorded " until excep- 
 tions taken at the time of trial had been 
 overruled by the Supreme Court, and 
 that an election made within three months 
 of that time, though more than three 
 months after the "acceptance" of the 
 verdict in the lower court, was not too 
 late. Hamiltori v. Farrar, 131 Mass. 572. 
 
 I Allow to Give. — The wojrds "I 
 allow to give W. J. $250 to be paid in 
 two years after date," written on an in- 
 strument, were held to constitute no valid 
 obligation and to be equivalent to "I 
 intend to give." Harmon v. James, 7 
 Ind. 263. 
 
 "Allow" and "Allot,"— See Allot- 
 ment, p. 491, n. 8; Glenn v. Glenn, 41 
 Ala. 571. 
 
 In this case " allowed " was defined to 
 be "substituted by way of compensation 
 for another thing. " 
 
 In a Repealing Act — An act repealing 
 all acts "permitting" => certain thing to 
 be done was held to repeal an act con- 
 taining a proviso that nothing contained 
 therein "shall prohibit" any person from 
 doing the thing referred to, and it was 
 said that " allowing" would have had the 
 same force. Huxham v. Wheeler, 3 H. 
 
 & C. 75. 
 
 1. " Allowances" of a Soldier.^For- 
 feiture of the "allowances" of a soldier 
 for desertion was held to include bounty 
 (he having been restored to duty and 
 afterwards honorably discharged). '' Un- 
 der the term ' allowances ' everything was 
 embraced which could be recovered from 
 the government by the soldier in consid- 
 eration of his enlistment and services, 
 except the stipulated monthly compensa- 
 tion designated as pay." U. S. v. Lan- 
 ders. g2 U. S. 77. 
 
 " Allowance" to a Wife. — The chancel- 
 lor was authorized by statute, upon 
 granting a divorce, to "decree the wife 
 
 an allowance out of the estate of the 
 husband." Held, that such allowance 
 passed to her in absolute right as a per- 
 manent provision for her support, not 
 liable to increase or diminution. Smith 
 i). Smith, 45 Ala. 264. 
 
 Allowance of the Road. — Where a 
 lease contained the words " the allowance ■ 
 of the road, etc., to be made as usual," it 
 was held that even if this were a covenant 
 by the lessor it did not operate as a 
 "defalcation of the rent." Davies v. 
 Stacey. 12 Ad. & Ell. 506. 
 
 "Allowance" to Officers. — An act de- 
 claring that the county prison board 
 "shall make no allowance not specially 
 required by this act" to certain officers 
 was held not to prohibit them from 
 allowing the sheriff for fuel furnished to 
 the county jail. " The word ' allowance ' 
 as used in the statute was not intended 
 to embrace a legal demand which any of 
 the officers named might have against the 
 county, but only such matters as would 
 otherwise, under other laws, have rested 
 in the discretion of the board." Board 
 of Comm'rs v. Reissner, 58 Ind. 260. 
 
 " Allowance" to a Son. — A credit was 
 entered by a father in account with his 
 son, in these vvords: " By further allow- 
 ance to pay for house, etc., $5000." 
 Held, that this was not a promise founded 
 upon a consideration. "The term 'al- 
 lowance ' is ordinarily only another name 
 for a gift or gratuity to a child or other de- 
 pendent." Taylor v. Staples, 8 R. I. 170. 
 
 " Allowances" of a Trustee. — In Eng- 
 land they are the expenses and charges 
 to which he may be entitled outside of 
 the ordinary fee bill. See Downing v. 
 Marshall, 37 N. Y. 390. 
 
 " Just allowances" to a trustee regarded 
 as consisting of " charges and expenses" 
 only. State Bank v. Marsh, Saxt. Ch. 
 (N. J.I 296. , 
 
 With Allowance. — The acceptance of 
 a conveyance and patent of land described 
 in the articles of agreement as containing 
 a. certain number of acres "with allow- 
 ance" was considered an agreement on 
 both sides to abide by the estimated 
 (Quantity in the official survey and patent, 
 " be the same more or less." M'Lelland 
 V. Creswell, 13 S. & R. (Pa.) 143. 
 
 Cabin or other Allowances. — In an 
 agreement between a master and ship- 
 owner to accept a certain sum "for all 
 cabin or other allowances," " other allow- 
 
 493 
 
Constructions, 
 
 ALLO WANCE— ALMANAC. 
 
 Constructions,. 
 
 ALLUVION. See ACCRETION. 
 
 ALMANAC. — The court will take judicial notice of an almanac.^ 
 
 ances" were held "rather to refer to 
 allowances like cabin and shore money 
 than to those of a different description," 
 and not to prohibit the master from 
 taking primage from the consignee. Best 
 V. Saunders, Mov. & M. 208. 
 
 "Allowance" of Executors' Accounts. — 
 Where a statute declared that after audit- 
 ing, etc., of the accounts of executors 
 and others " an. allowance may be de- 
 creed," it was held that "allowance" 
 meant "nothing more than the sanction 
 or approbation which the court gives to 
 the acts of the executor or administrator 
 as manifested by his account." Gildart's 
 Heirs v. Starke,' i How. (Miss.) 457. 
 
 Salary and Allowance. — In the year 
 1873 the defendants,, who were solicitors 
 at Trowbridge, entered into an arrange- 
 ment with the local board for Trowbridge 
 whereby the members of the board should 
 have the use of a room belonging to the 
 defendants, and the use of an iron safe, 
 at the rent of 12/. a year, including 
 cleaning, warming, and lighting. The 
 room continued in the occupation of the 
 local board down to 1877, when the' de- 
 fendants were appointed clerks to the 
 local board at the rate of 90/. a year, 
 "all out-of-pocket expenses and convey- 
 ances to be paid in addition to the salary." 
 In 1880 the local board were in want of a 
 room for the use of their surveyor, and 
 they agreed to hire another room of the 
 defendants, also at the rate of 12/. The 
 terms of the resolution of the local board 
 hiring the rooms were as follows: "That 
 the clerks be allowed in addition to their 
 salary the sum of 12/. for the use and 
 occupation of their large room for board 
 and committee meetings, and the sum of 
 V2.1. for the front room for the use of the 
 surveyor of the board. Six months' 
 notice from any quarter by either party 
 to determine this arrangement." The 
 rent of 24/. a year continued to be paid 
 to the defendants by the local board 
 for the use of the two rooms, and the 
 last payment before action was made 
 about six months before action. The 
 statute forbid any employee of the board 
 receiving any fee, reward, etc., other 
 than his salary and allowance. Held, k 
 demise of rooms is a "bargain or con- 
 tract" within the meaning of sec. 193 
 of the Public Health Act, 1875; and if an 
 officer employed by a local board consti- 
 tuted under that statute lets rooms to 
 the board at a rent payable by it to him, 
 although the rooms are used by it in the 
 
 494 
 
 transaction of its business he becomes 
 liable to the penalty imposed by that 
 section; for the rent payable by the local 
 board cannot be considered as an " al- 
 lowance" to the officer in addition to his 
 salary within the meaning of sees. 189, 
 193, it being unconnected with the per- 
 formance of any services in the course 
 of his employment under the board. 
 Burgess v. Clark, L. R. 14 Q. B. D. 735. 
 1. In Munshower v. State, 55 Md. 11, 
 the court said: " It Was conceded that it 
 became material and competent for the 
 State to prove at what hour the moon 
 rose on the night of Saturday, the 9th of 
 August, 1879, and for the purpose of 
 proving this the State offered in evidence 
 Gruber's Almanac for the year 1879. 
 The prisoner objected to its admissibility, 
 but the court overruled the objection and 
 allowed the almanac to be offered for the 
 purpose stated. To this ruling the pris- 
 oner excepted. This is all the exception 
 states in regard to the almanac offered, 
 and we must assume that it contained 
 tables giving the periods of the rising and 
 setting of the sun and moon on each day 
 of the year, such as are usually found in 
 such works. The prisoner did not pro- 
 pose to offer proof assailing or impeach- 
 ing the accuracy of the astronomical cal- 
 culations upon which the tables in the 
 particular almanac in question were made, 
 but his counsel contend that the almanac 
 was not the best evidence, nor indeed 
 any evidence as to when the moon rose 
 on that night. The argument is, that it 
 was a mere calculation made by some 
 one, long anterior to the happening of the 
 event, that the event would occur at a 
 certain hour and minute; it was not evi- 
 dence that the moon had risen at a cer- 
 tain hour, but the statement of a conjec- 
 ture that it would do so. On the 2d of 
 January, I880, when this case was on 
 trial, there were certainly better and 
 surer means of proving when the moon 
 did actually rise on the 9th of August, 
 1879, than by relying on the computation 
 of an almanac-maker that it would or 
 ought to rise at a giVen time that night : 
 how is the fact that it did rise at a partic- 
 ular hour proved by tendering as evidence 
 the conjecture or calculation of some one 
 that it would do so ? If Gruber's Alma- 
 nac is evidence for this purpose, so then 
 are all the other various ones published, 
 because there is nothing in this one to 
 make it more authentic than the others, 
 and thus a fact susceptible of exact proof 
 
Constractions. 
 
 ALMANAC— ALMS— ALONG. 
 
 Constructions. 
 
 ALMS. — Something given to relieve the poor.* 
 ALONG. — By, on, or over.* 
 
 like any other event that has happened 
 may be established by the unsworn con- 
 jecture of almanac-compilers. We do 
 not propose to elaborate the question, 
 nor to rely upon the fact that the statute 
 of 24 Geo. 2, ch. 23, is in force in this 
 State. As has been well argued by the 
 attorney-general in his brief, the precise 
 periods at which the sun and moon will 
 rise or set at any particular period of 
 twenty-four hours in the future is as ab- 
 solutely certain and just as capable of 
 exact mathematical ascertainment as the 
 occurrence of the day in which such set- 
 ting or rising will take place. Courts 
 have received as evidence weather re- 
 ports, reports of the state of the markets, 
 price currents, and insurance tables tend- 
 ing to show the probable duration of hu- 
 man life, though these are records which 
 are not capable of mathematical demon- 
 stration, which cannot be tested by any 
 certain law, and which may or may not 
 omit the record of changes which have 
 actually taken place-. But an almanac 
 forecasts with exact certainty planetary 
 movements. We govern our daily life 
 by reference to the computations which 
 they contain. No oral evidence or proof 
 which we could gather as to the hours of 
 the rising or setting of the sun or moon 
 could be as certain or accurate as that 
 which we may obtain from such a source. 
 Why then should not these computations, 
 which are, after all, but parts of the ordi- 
 nary computations of the calendar, be 
 admitted as evidence? As was said by 
 Ju^ge Cooley in considering an analo- 
 gous question, Sisson v. Railroad Co. , 14 
 Mich 4g7, ' Courts would justly be the 
 subject of ridicule if they should deliber- 
 ately shut their eyes to the sources of in- 
 formation which the rest of the world re- 
 lies upon, and demand evidence of a less 
 certain and satisfactory character. ' There 
 is clearly no error in the ruling in this 
 exception." 
 
 In State v. Morris, 47 Conn. 179, a 
 case of burglary, the court said: "For 
 the purpose of showing that it was in the 
 night season, the State was permitted to 
 introduce in evidence, against the objec- 
 tion of the defence, a copy of Beckwith's 
 Almanac for 1879, in which the hour of 
 sunset for that day is placed at four o'clock 
 and forty-one minutes. There is no er- 
 ror in this. The time of the rising or 
 setting of the sul. on any given day be- 
 longs to a class of facts, like the succes- 
 sion of the seasons, changes of the moon, 
 
 days of the month and week, etc., d 
 which courts will take judicial notice. 
 The almanac in such cases is used, like 
 the statute, not strictly as evidence, but 
 for the purpose of refreshing the memory 
 oi the court and jury." See Reed v. 
 Wilson, 41 N. J. L. 29; Kilgour v. Miles, 
 6 G. & J. (Md.) 274; Sasscer v. Farmers" 
 Bank, 4 Md. 420; Finney v. Callendar, 
 8 Minn. 41; People v. Cheekee, 61 Cal. 
 404; Sprowl V. Lawrence, 33 Ala. 674; 
 Tutton V. Darke, 5 H. & N. 647; R. -v. 
 Dyer, 6 Mod. 41; Brough v. Perkins, 6 
 Mod. 81. 
 
 1, " Alms," in the clause of a statute 
 disqualifying persons who have received 
 " parochial relief or other alms," means 
 parochial alms. Regina v. Mayor of 
 Lichfield, 2 Q. B. 695. 
 
 Begging Alms or Soliciting Charity. — 
 " Every one whose diseased or crippled 
 condition appeals to sympathy if he 
 places himself in a position to attract at- 
 tention, or passes along the street calling 
 attention by sign, act, or look to his un- 
 happy condition, and receives from those 
 who observe him the charity which he is 
 obviously seeking," is. begging alms or 
 soliciting charity. In re Haller, 3 Abb. 
 N. C. (N. Y.) 65. 
 
 2. Along. — "Along" means "by," 
 "on," or ■' over," according to the sub- 
 ject-matter and context. Church v. 
 Meeker, 34 Conn. 425. 
 
 It is sometimes synonymous with "ad- 
 joining " in a statute; Walton v. St. L., 
 I. M. & S. R. Co.. 67 Mo. 58. 
 
 "Along" is equivalent to "on." Rex. 
 V. Morris, i B. & Ad. 448. 
 
 Along a Eiver. — A statute giving a 
 railroad company the right to lay their 
 road along a river aiid to acquire the 
 rights of shore-owners will not be con- 
 strued to give by implication the right to 
 take the land of the State lying below 
 high-water line. Stevens v. The P. & N. 
 R. Co., 5 Vroom (N. J,), 532. 
 
 Along a Wall. — Where the description 
 in a deed said " along the south side of 
 the brick wall," it was held that the outer 
 surface of the brick wall was intended. 
 Cornes v. Minot, 42 Barb. (N. Y.) 60. 
 
 Along the Bank. — " Where banks of 
 rivers were spoken of, tfiose boundaries 
 were meant which contain their waters 
 at their highest flow." Howard et al. v. 
 Ingersoll, 13 How. 415. 
 
 Along the High-water Mark.^These 
 words indicate a fixed boundary-line, and 
 under them a grantor is entitled to no 
 
 495 
 
ALONG— ALREAD Y— ALSO— ALTER. 
 
 ALREADY.— Before a certain time.* 
 ALSO.— In addition to.* 
 
 ALTER. — To make a thing different from what it was ; * to 
 
 change.* 
 
 accretions or land left dry. Cook v. 
 McCIure, 17 Am. R. 270. 
 
 Along the Eiver. — The established and 
 only proper meaning of this word as here 
 used is, beside and following the course 
 of, or alongside. When the phrase " upon 
 and along a road " is used, the word 
 "upon" qualifies the meaning of 
 "along." Stevens zJ. Erie R. Co., 6 C. 
 E. Green (N. J.) 261. 
 
 Under a grant "along the river" the 
 grantee takes usque filum aquce, unless 
 the river be expressly excluded. Luce 
 •u. Carley, 24 Wend. (N. Y.) 451. 
 
 Along the Boute.— Grand Trunk R. Co. 
 V. Richardson, gi U. S. 454. 
 
 Along the Shore. — Under a deed con- 
 taining these words, "along the shore," 
 the grantee would take no part of the 
 river bed, but only to low-water mark. 
 Child et al. v. Starr et al., 4 Hill (N. Y.), 
 369; The Seneca Nation v. Knight, 23 
 N. Y. 498. 
 
 Along the Street. — These words carry 
 a fee to the middle of the street. Ham- 
 mond etal. V. McLachlan, I Sandf. (N. Y.) 
 323; Hennig v. Fisher, i Sandf. (N. Y.) 
 
 344- 
 
 1. Where a statute subjected persons 
 to a penalty for practising their profes- 
 sion after a certain date, except persons 
 already. in practice, it was held that it 
 was necessary to show that they w*e 
 practising at the time the act went into 
 operation. Apothecaries' Co. v. Roly, 5 
 B. & Aid. 949. 
 
 Already Accrued. — These words in a 
 statute limiting the time for the com- 
 mencement of actions apply not merely 
 to the date of the original enactment, but 
 to any subsequent amendment. Goillotel 
 V. Mayor, etc., 87 N. Y. 444. 
 
 Already Incurred. — A clause that nothing 
 contained in statute shall affect any pen- 
 alty, etc., " already incurred " saves from 
 the operation of the statute any penalty 
 incurred before it took effect, although 
 aft^r it was approved by the governor. 
 Commonwealth v. Bennett, 108 Mass. 30. 
 
 When not already Done. — These words 
 in an ordinance directing the laying of 
 sidewalks, etc., apply to the existing 
 and not the prior condition of the sub- 
 ject-matter. In re Burmeister, 6 Weekly 
 Dig. (N. Y.) 197. 
 ' 2. " Also" is a copulative and not a dis- 
 
 496 
 
 junctive word. Farrish v. Cook, 6 Mo. 
 App. 331. 
 
 Testator devised as follows: " I give 
 unto J. C. all that my house and premises 
 at P. I.; also give unto J. C. all that my 
 land, etc., to J. C, his heirs and assigns 
 forever." I/e/d, J. C. took a fee in the 
 house. Fenny v. Ewestace, 4 M. & S. 
 60. 
 
 Testator gave to A certain property 
 for the sole and separate use of X; also to 
 the said A the sum of one thousand dol- 
 lars in trust for the use of said X. //e/d, 
 the thousand dollars was for the sole and 
 separate use of X: " also" equivalent to 
 "in like manner." Kvanset ux.v. Knorr, 
 4 Rawle (Pa.), 67. 
 
 But words importing a tenancy in com- 
 mon in one bequest will not be extended 
 by implication to another bequest which 
 is connected with the former by the term 
 "also." 2 Jarmin on Wills (Bigelow's 
 Ed.), *257. 
 
 3. Smith V. Brown, i Wend. (N. Y.) 
 236. 
 
 ' ' A power to alter a wharf would seem 
 to mean a power to extend it or diminish 
 it." Tucker v. St. L., K. C. & N. R. Co., 
 54 Mo. 172. 
 
 But a power to " open, alter, abolish," 
 etc., a street would not authorize its en- 
 tire occupation by a railroad company's 
 tracks., Sackland v. North Mo. R. Co., 
 31 Mo. 187. 
 
 4. People V. Sassovich, 29 Cal. 484. 
 As a road may be discontinued when 
 
 a new ror.d renders the old unnecessary 
 under a power to alter. Ponder et ai. v. 
 Shannon et al, 54 Ga. 187. 
 
 Or changes the grade of a street. Wad- 
 dell V. The Mayor, etc., 8 Barb. (N. Y.) 
 
 95- 
 
 " Alter" implies "another," and nothing 
 which ceases to exist can be said to be 
 altered. Haynes v. The State, 15 Ohio St. 
 485- 
 
 Alter or Amend. — The power to alter 
 or amend a contract is to change it be- 
 tween the original parties and such others 
 as are by mutual consent admitted into 
 it. It does not give the power to compel 
 one of the parties to operate in conjunc- 
 tion with others and share with them the 
 privileges and benefits of the contract. 
 Sage, etc., v. Dillard, etc., 15 Ben. M. 
 (Ky.) 359- 
 
ALTERATION—ALTERATION OF INSTRUMENTS. 
 
 AITERATION. 
 
 other.i 
 
 ALTERATION OF INSTRUMENTS. 
 
 Bonds; Deeds; Wills.) 
 
 1. Definition. 
 
 2. Immaterial Alterations. 
 
 What are. 
 Immaterial Alterations of 
 
 Words. 
 Immaterial Insertions of Words. 
 Immaterial Erasures. 4. 
 
 Effect, of with Fraudulent In- 
 tent. 
 
 3. Material Alterations. 
 
 Effect of in General. 
 
 Effect of in Deeds. 
 
 Effect of made by Consent. 
 
 Effect of Restored. 
 
 Effect of by Third Parties. 
 
 Effect of by Third Parties in 5. 
 
 Deeds. 
 What are : 
 
 Must be in Material Part. 
 Change in Parties. 
 Change in Character. 
 Change in Place of Payment. 6. 
 Change in Ti}ne of Payment. 7. 
 Change in Principal. 8. 
 
 -A change or substitution of one thing for an- 
 
 (See also BILLS and Nqtes ; 
 
 Change in Consideration. 
 
 Change in Description of Prop- 
 Change in Interest. \erty. 
 
 Change in Date. 
 
 Change in Meinoranda. 
 
 General Alterations. 
 Whether Immaterial or Not. 
 
 Question of Law or Fact. 
 
 Burden of Proof. 
 
 General Statement. 
 
 Common-law Rule in Deeds. 
 
 Rule as to Negotiable Instru- 
 ments and Deeds. 
 
 Rule as to Alterations not Ap- 
 parent. 
 Filling up Blanks. 
 
 Left Negligently. 
 
 Left in Negotiable Instruments 
 with Authority to Fill in. 
 
 Left in Deeds. 
 
 Left in Bonds. 
 Recovery on Original Consideration. 
 Ratifications of Alterations. 
 Alteration iti Wills. 
 
 1. Definition. — An alteration of an instrument is something by 
 which its meaning or language is changed either in a material or 
 immaterial particular.* If what is written upon or erased from 
 
 1. Johnson v. Wyman et al., 9 Gray 
 (Mass.), 189. 
 
 An alteration of an instrument is some- 
 thing by which its meaning or language 
 is changed, either in a material or an im- 
 material particular. Morrill v. Otis, 12 
 N. H. 466; Oliver z/. Hawley, 5 Neb. 444. 
 
 It usually imports some fraud or im- 
 proper design on the part of the person 
 changing the instrument. McVey v. Ely, 
 5 Lea (Tenn.), 442. 
 
 Alteration and Spoliation. — Alteration 
 imports an improper design; but spolia- 
 tion is the act of a stranger without the 
 participation of the party interested. 
 Mealin v. Platte Co., 8 Mo. 239. 
 
 Erection, Alteration, or Sepair. — The 
 removal of a building is not such an erec- 
 tion, alteration, or repair as will entitle 
 the workman to a lien therefor under the 
 mechanics' lien laws. Trask v. Searle, 
 121 Mass. 230. 
 
 Alteration of a Boad. — The term "alter- 
 ation" is used to distinguish between the 
 making of an entire new way and chang- 
 ing the location in one or more interme- 
 
 497 
 
 diate sections. Gloucester v. Essex, 3 
 Mete. (Mass.) 379. 
 
 The substitution of one line of way for 
 another; the establishment of one and the 
 discontinuance of that for which it is 
 substituted. Sprague v. Waite, 17 Pick. 
 (Mass.) 315. 
 
 2. Morrill v. Otis. 12 N. H. 466; Oli- 
 ver V. Hawley, 5 Neb. 439; Palmer v. 
 Sargent, 5 Neb., 233; s. c, 25 Am. Rep. 
 479; Inhabitants of Gloucester w. County 
 Comm'rs, 3 Mete. (Mass.) 375; Bridges 
 V. Winters, 42 Miss. 135; s. c, 2 Am. 
 Rep. 598. 
 
 A Material Alteration is one which 
 causes it to speak a language dififerent in 
 legal effect from that which it originally 
 spake. Reeves v. Pierson, 23 Hun (N. 
 Y.). 185; Oliver v. Hawley, 5 Neb. .439; 
 Morrill V. Otis, 12 N H. 466. 
 
 Spoliation or mutilation is the altera- 
 tion of an instrument by a stranger to it, 
 and without the consent or connivance 
 of any of the parties to it. Spoliation or 
 mutilation does not change the legal ope- 
 ration of the instrument when the origi- 
 
Immaterial ALTERATION OF INSTRUMENTS. 
 
 Alterations. 
 
 the paper containing an instrument has no tendency to produce 
 this result, nor to mislead any person, it will not be an alteration.^ 
 
 2. Immatsrial Alterations. — Unchanged Meaning. — An alteration 
 which does not vary the meaning of an instrument is immaterial. 
 It has been said that an immaterial alteration may be treated as 
 no alteration and cannot avoid the instrument.* 
 
 Alterations of Words. — Altering words in a written instrument 
 without changing the legal sense or altering words which are im- 
 material is an immaterial alteration.^ 
 
 nal meaning can be ascertained. Bridges 
 V. Winters, 42 Miss. 135; Gorden v. Rob- 
 ertson, 48 Wis. 493; Union Nat. Bank i/. 
 Roberts, 45 Wis. 373; Robertson v. 
 Hay, 91 Pa. St. 242; Cochran v. Nebeker, 
 48 Ind. 459; Davis v. Carlisle, 6 Ala. 707; 
 Croft V. White, 36 Miss. 455; Medlin v. 
 Platte Co., 8 Mo. 235; Lubbering v. 
 Kohlbrecher, 22 Mo. 596. 
 
 1. An alteration is immaterial when 
 the law would supply the matter added, 
 or when it is in an immaterial part of the 
 instrument. Burnham v. Aver, 35 N. 
 H. 351; Western Building Assoc, v. Fitz- 
 maurice, 7 Mo. App. 283; Goodenow v, 
 Curtis, 33 Mich 505; Bridges v. Winters, 
 42 Miss. 135; Sharpe v. Orme, 61 Ala. 
 263; Crews V. Farmers' Bank, 31 Gratt. 
 (Va.) 348; Kline v, Raymond, 70 Ind. 
 271; State V. Cilley, Hillsborough, April, 
 1817, cited I N. H. 97; Derby v. Thrall, 
 44 Vt. 413; Smith V. Lockridge, 8 Bush 
 (Ky.)423; Palmer w. Sargent, 5 Neb. 233. 
 ' 2. Nichols V. Johnson, 10 Conn. 192; 
 Pequawket Bridge v. Mathes, 8 N. H. 
 139; Palmer v. Sargent, 5 Neb. 233; 
 s. c, 25 Am. Rep, 479; Burnham v. 
 Ayer, 35 N. H. 351; Humphreys v. 
 Crane, 5 Cal. 173;' Cole v. Hills, 44 N. 
 H. 227; Manufrs. Bank v. Follett, 11 R. 
 I. 92; s. c, 23 Am. Rep. 418; Burlin- 
 game v. Brewster, 79 111. 515; State v. 
 Riebe, 27 Minn. 315. 
 
 Alterations and erasures will not be 
 regarded when they are wholly unimpor- 
 tant, and the contract would be as valid 
 without them as with them. McKibben 
 V. Newell, 41 111. 461. 
 
 An alteration in the recitals of a bond, 
 made after its execution by the attorney 
 of the obligee, without any wrongful or 
 fraudulent purpose, which does not in 
 any manner prejudice the obligors or 
 aflCect their rights or obligations is imma- 
 terial and will not destroy the bond. 
 Crawford v. Dexter, 5 Sawy. Cir. Ct. 
 (U. S.) 201. 
 
 Alterations in deeds are immaterial 
 where neither the rights nor interests, 
 duties nor obligations, of either of the 
 parties are in any manner affected or 
 
 changed. Smith v Crooker, 5 Mass. 
 538; Derby v. Thrall, 44 Vt. 413. 
 
 3. Kline v. Raymond, 70 Ind. Z71, 
 where it was held thai altering the words 
 "we hereby guarantee" to "I hereby 
 guarantee" in an instrument signed only 
 by one party is immaterial. 
 
 The' marginal figures in a note are 
 held to be immaterial, and changing 
 them so as to correspond with the writ- 
 ten words is^ an immaterial alteration. 
 Smith V. Smith, i R. I. 398; s. c, 53 
 Am. Dec. 652; Woolfolk v. Bank of 
 America, 10 Bush (Ky.); 504; Schryver 
 V. Hawkes, 22 Ohio St. 308; Johnston 
 Harvester Co. v. McLean, 57 Wis. 258. 
 
 So is the alteration of the serial num- 
 ber of a bond where the numbering is 
 not required by statute immaterial. 
 Flock V. Cobb, 64 Ala. 127; Com. v. 
 Emigrants' Bank, 98 Mass. 12; City of 
 Elizabeth v. Force, 29 N. J. Eq. 592; 
 Birdsall v. Russell, 29 N. Y. 220. 
 
 A promissory note made payable to a 
 partnership under a certain name was 
 altered by the maker and the payee with- 
 out the knowledge of the surety so as to 
 be payable to the same parties under 
 another name. Held to be immaterial. 
 Arnold v. Jones, 2 R. I. 345; Cole v. 
 Hills, 44 N. H. 227; Derby v. Thrall, 44 
 Vt. 413. 
 
 A bond was given for "one hundred 
 dollars," to be paid in twenty-five dollars 
 a year, with interest on the whole." The 
 holder italicized the last three words. 
 Held, not to disturb the legal effect of the 
 bond and therefore immaterial. Gardi- 
 nier w. Sisk, 3 Pa. St. 326; Burkholder v. 
 Lapp, 31 Pa. St. 322. 
 
 Erasing a scroll which took the place 
 of a seal from a written instrument, and 
 substituting another in juxtaposition with 
 the name of the signer, was held not to 
 be a material alteration. Keen v. Mon, 
 roe, 75 Va. 424. 
 
 Retracing a faded name with ink- 
 Dunn V. Clements, 7 Jones L, (N. Car.) 
 58 — or tracing with ink a word written in 
 pencil is immaterial. Reed v. Roark, 
 14 Tex. 329; s. c, 65 Am. Dec. 127. 
 
 498 
 
Jnsertions 
 
 ALTERATION OF INSTRUMENTS. 
 
 of Words 
 
 Insertion of Words. — And so may words be inserted when they 
 are either entirely immaterial, or only explanatory and do not 
 alter the legal sense of the instrument.^ 
 
 And so is the correction of a mistalce 
 immaterial; as where both parties in- 
 tended to malce a note payable to B. C, 
 but accidentally wrote B. R. C, the eras- 
 ure of the R. was held to be an imma- 
 terial alteration. Cole v. Hills, 44 N. H. 
 227; Derby v. Thrall, 44 Vt. 413; s. c, 
 8 Am. Rep. 389; Duker v. Franz, 7 Bush 
 (Ky.), 273; s. c, 3 Am. Rep. 314; McRa- 
 ven V. Crisler, 53 Miss. 542; Jessup v. 
 Dennison, 2 Disn. (Ohio) 150; Ames v. 
 Colburn, 11 Gray (Mass.), 390; Jordan v. 
 Stevens, 51 Me. 78; Murray v. Graham, 
 -ig Iowa, 520; Arnold v. Jones, 2 R. I. 
 
 ■345- CoOT/are "Miller v. Gilleland, ig Pa. 
 -St. iig. 
 
 But the effect of the correction must be 
 that it makes the instrument conform to 
 the intentions of the parties concerned. 
 Hervey v. Hervey, 15 Me. 357. 
 
 The alteration of a note in a material 
 respect by one of several makers thereof 
 assuming to have authority to do so, and 
 for the honest, purpose of making it con- 
 form to the original intention of the par- 
 ties without the express though with the 
 implied consent of the holder, will not 
 prevent a recovery by the latter against 
 
 :all the makers in an action upon the note 
 as though in the form originally deliv- 
 ered. Murray v. Graham, 29 Iowa, 520. 
 1. In Krouskop v. Shoutz the words 
 "this note to be extended if desired by 
 makers " were held to be so void of legal 
 
 . significance that the addition thereto, af- 
 ter the note was delivered, of the words 
 " on payment of interest, as expressed, 
 until January i, i87g," was not consid- 
 ered a material alteration. Neither was 
 the alteration of $600 to $iooo on a prop- 
 erty statement of a wife, which also in- 
 cluded a farm worth $4000, and which 
 was given to secure a note for I140 given 
 by her and her husband, material. 51 
 Wis. 204. 
 
 Memoranda made on the margin or 
 back of a note for the convenience of the 
 holder, and merely explanatory of some 
 
 ■ circumstances connected with the note, 
 are immaterial. Struthers v. Kendall, 5 
 Wright (Pa.), 214; Bachellor v. Priest, 12 
 Pick. (Mass.) 3gg; Oliver v. Hawley, 5 
 
 -Nebr. 439. 
 
 An interlineation in a delivery bond 
 giving a description of the attached prop- 
 
 -erty, and made by the officer in good faith, 
 is not a material alteration. Rowley v. 
 
 ijewett, 56 Iowa, 492. 
 
 Neither is the .additian of the full Chris- 
 
 tian names of the drawers of an instru- 
 ment which were only signed with initials. 
 Blair !<. Bank of Tennessee, 11 Humph. 
 (Tenn.) 84. 
 
 Nor the addition of the surname of the 
 payee. Mowchet ». Cason, I Brev. (S. 
 Car.) 307. 
 
 The insertion of the word "Penna" in 
 an acknowledgment is immaterial. De- 
 vinney v. Reynolds, i W. & S. (Pa.) 328. 
 
 Inserting words intended to express a 
 waiver of the benefits of a specific act of 
 the assembly in a mortgage, which act 
 had been repealed before the mortgage 
 was executed, does not affect the mort- 
 gage and is immaterial. Robertson v. 
 Hay, 91 Pa. St. 242. 
 
 Inserting two words in a will not in the 
 handwriting of the maker, but which do 
 not change the sense, does not invalidate 
 the will. McMichael v. B^nkston, 24 La. 
 Ann. 451. 
 
 Where in a sealed instrument, which 
 stated that the defendant had "signed" 
 certain promissory notes, the words "and 
 executed " were added, it was held that 
 such an alteration was immaterial. Lang- 
 don V. Paul, 20 Vt. 217. 
 
 Where in a bond the words "are held 
 and firmly bound " are inserted, when 
 there are words to the same effect already 
 in the bond, it is not material. Western 
 Building Assoc, v. Fitzmaurlce, 7 Mo. 
 App. 283. 
 
 Interlining in a deed an important 
 clause which is also found In another 
 part of the deed was held to be an im- 
 material alteration. Gordon v. Sizer, 39 
 Miss. 818. 
 
 The addition of the word "agent" to 
 the signature of a note, where the note 
 was given for the agent's private debt, did 
 not avoid the note, as it was not proved 
 that his principal was accustomed to pay 
 notes so executed. Manufacturers' Bank 
 V. FoUett, II R. I. 92; s. c, 23 Am. Rep. 
 418. 
 
 And so is it immaterial to add the 
 name of the bank after the word " cash- 
 ier " on a note which was given to bind 
 the bank. Folger v. Chase, 18 Pick. 
 (Mass.) 63; Bank of Genesee v. Patchin 
 Bank, 13 N. Y. 309. 
 
 The affixture of a seal to a contract, 
 where it adds no actual strength to the 
 contract, is immaterial. Truett v. Wain- 
 wright, 4 Gil. (111.) 411; White v. Fox, 29 
 Conn. 570. 
 
 Adding the words " ten dollars and fif- 
 
 499 
 
Insertions 
 
 ALTERATION OF INSTRUMENTS. 
 
 of Words. 
 
 ty interest " immediately after the words 
 " value received " in a promissory note 
 is not a material .alteration; such words 
 would be construed to mean that a por- 
 tion of the value received by the makers 
 consisted of ten dollars and fifty cents for 
 interest. Gardiner v. Harback, 21 111. I2g. 
 
 One of the makers of a joint note 
 which did not state the rate of interest, 
 although it contained the clause " on de- 
 mand with interest," added, after deliv- 
 ery, the following memorandum: "Inter- 
 est on the above note to be nine percent. 
 G. W. C." Held, that this was not a ma- 
 terial alteration as far as the other makei' 
 was concerned. It being signed by G. 
 W. C. only shows that the parties did 
 not intend to change the joint promise, 
 bnt to treat it as an independent under- 
 taking by him. Littlefield v. Coombs, 71 
 Me. no. 
 
 A note was given for an amount of 
 money loaned, with the understanding 
 that interest should be paid at the rate of 
 six and a half per cent for six months, 
 and if the note was not then paid that the 
 rate of interest should be raised to seven 
 per cent. At the end of the six months, 
 the note not being paid, the secretary of 
 the association which advanced the money 
 wrote in the body of the note a state- 
 ment that from the end of the six months 
 interest was to be at the rate of seven 
 per cent. One payment at this rate was 
 made when the makers of the note failed. ' 
 The surety brought suit to be discharged 
 on account of the alteration of the note. 
 Held, that as the secretary acted in good 
 faith and under a mistake of fact, and as 
 the surety had not been injured by it, 
 the alteration should be considered im- 
 material and erased from the note. Nick- 
 erson v. Swett, 135 Mass. 514. 
 
 A memorandum made on the back of 
 a note by the holder in pursuance of an 
 agreement with the maker, but without the 
 knowledge of a surety, to the effect that 
 the rate of interest after a specified day 
 will be less than provided in the note, is 
 not an alteration and does not discharge 
 the surety. Cambridge Savings Bank w. 
 Hyde, 131 Mass. 77; s. c, 41 Am. Rep. 
 193. 
 
 The introduction of the dollar-mark m 
 a note, followed by numerals which may 
 be omitted without affecting its sense, is 
 immaterial. Houghton v. Francis, 29 111. 
 244. 
 
 Where one placed at the foot of a note 
 to the left of the signature, after the note 
 had been executed, and without the con- 
 sent or knowledge of the maker, a mem- 
 orandum making the note payable "at 
 Goodyear Bros, and Durand's, New- York, 
 
 January 10-13," it was held to be an im- 
 material alteration, as it in no way varied 
 or increased the liability of the maker. 
 American Nat. Bank v. Bangs, 42 Mo. 
 450. 
 
 The maker of a note, after indorse- 
 ment by the payee, inserted the words, 
 " Payable before maturity, and interest 
 on unexpired term refunded if I so elect." 
 •The note was then negotiated, and de- 
 livered by him to a bona-fide holder for 
 value, who had no notice of the altera- 
 tion. In a suit of the holder against the 
 indorser, it was decided that such alter- 
 ation was immaterial, and did not affect 
 the indorser, who was held liable on the 
 note. Herrick v. Baldwin, 17 Minn. 
 209. 
 
 And where to the interest clause of a 
 note payable in less than' two years the . 
 word " annually" was added, it was con- 
 sidered not ji material alteration, as it 
 does not require the payment of interest 
 at the end of the year. Leonard v. 
 Phillips, 39 Mich. 182; s. <-., 33 Am. Rep. 
 370. 
 
 Where the surety knows that a note is 
 to be paid in gold, a memorandum at the 
 bottom of the note "paid in gold, gold 
 having been the consideration," will be 
 an immaterial alteration. Hanson v. 
 Crawley, 41 Ga. 303. 
 
 Where the principal maker of a note, 
 payable on conditions, indorsed upon the 
 note the fact of the performance of the 
 conditions, it was held not such a materi- 
 al alteration as would discharge the sure- 
 ty. Jackson v. Boyles, 64 Iowa, 428. , 
 
 Inserting words obviously omitted by 
 mistake is immaterial. Peyton v. Har- 
 man, 22 Gratt. (Va.) 643; Conner v. 
 Routh, 7 How. (Miss.) 176; s. c, 40 Am. 
 Dec. 59; Hunt v. Adams, 6 Mass. 519; 
 Boyd V. Brotherson, 10 Wend. (N. Y.) 
 
 93- 
 
 And so are interlineations in the hand- 
 writing of the grantor, merely curing a 
 defect in the description of lands con- 
 veyed, and according with all the pur- 
 poses of the deed. Sharp v. Orme, 61 
 Ala, 263. 
 
 The mere signing of a note by the 
 holder thereof before maturity is not a 
 material alteration of the note. Denick 
 V. Hubbard, 27 Hun (N. Y.), 347. 
 
 Adding the name of a witness to a note 
 is not a material alteration. Milbery v. 
 Storer, 75 Me. 69; s. c, 46 Am. Rep. 
 361; Smith V. Dunham, 8 Pick. (Mass.) 
 246; Ford, V. Pcrd, 17 Pick. (Mass.) 
 418; Adams v. Frye, 3 Mete. (Mass.) 
 103; Willard v. Clarke, 7 Mete. (Mass.) 
 435; Rollins V. Bartlett, 20 Me. 319; 
 Thornton v. Appleton, 29 Me. 298. 
 
 500 
 
Erasures. 
 
 ALTERATION OF INSTRUMENTS. 
 
 Erand. 
 
 Erasures of Words. — The erasure of words immaterial to the 
 legal sense of the instrument, or inserted by mistake, is also im- 
 material. ^ 
 
 Immaterial Alterations with Fraudulent Intent. — Where an al- 
 teration is in itself immaterial it will not avoid an instrument 
 even though made with fraudulent intent.* 
 
 So held, where one who could neither 
 read nor wriie signed a note with his 
 marli in the presence of a third party; 
 which third party after the making of the 
 mark and before delivery, without knowl- 
 edge of either the maker or the. payee, 
 witnessed the note as a matter of course. 
 Church v. Fowie, 5 Eastern Repr. (Mass.) 
 
 519- 
 
 1 Thomson on Bills (Wilson's Ed.), 
 
 114- 
 
 Where afier the testator's death cer- 
 tain words, mere expletives, were erased 
 from the will by the one who wrote the 
 instrument, it was held to be an imma- 
 terial alteration, as such erasion did not 
 alter the tenor of the will. Cogbill v. 
 Cogbill, 2 Hen. & M. (Va.) 467. 
 
 A note purporting by its terms to be 
 the personal promise of the makers was 
 signed by A, B, and C, "as trustees of 
 the First Universalist Society," a blank 
 being left for the signature of D, a fourth 
 trustee; and the note was delivered to 
 the payee to obtain that signature, which 
 he did after tearing off, without D's 
 knowledge, the descriptive words. Held, 
 that as the note made the tru't^es per- 
 ■ sonally liable, the tearing off 01 ^he de- 
 scriptive words was an immaterial altera- 
 tion. Burlingame v. Brewster, 79 111. 
 515; s. u., 22 Am. Rep. 177; Hayes -v. 
 Matthews, 63 Ind. 412; s. c, 30 Am. 
 Rep. 226; Hayes v. Brubaker, 65 Ind. 
 27; McGuinness v. Bligh, 11 R. I. 94. 
 
 Erasing from a subscription paper the 
 name of a previous subscriber to the stock 
 of a corporation does not affect the lia- 
 bility of a subsequent subscriber. Such 
 alteration of the subscription list is 
 deemed immaterial, as each subscription 
 forms a separate contract with the com- 
 pany, and in the absence of proof there 
 could be no presumption that defendant 
 was induced to subscribfe because previ- 
 ous subscribers had done so. Whittle- 
 sey I/. Frantz, 74 N. Y. 456. 
 
 And so held in regard to a subscription 
 paper for the erection of a church, where 
 it was alleged that the name of the treas- 
 urer to whom the subscriptions were to 
 be paid was inserted after the subscriber 
 signed the paper. Landmerlen v. Wheel- 
 er, 106 Ind. 523. 
 
 The payees of a non-iiegotiable paper 
 
 may strike out their indorsement when 
 the paper is in their hands, the presump- 
 tion being that there had been no trans- 
 fer by delivery. Texas Land & Cattle 
 Co. V. Carroll, 63 Tex. 48. 
 
 The erasure of the name of one who 
 indorsed a note before its delivery, but 
 afterward paid it and sues the maker, is 
 not a material alteration as between the 
 parties to the suit. Tutt v. Thornton, 
 57 Tex. 35. 
 
 2. Miller v. Reed, 27 Pa. St. 246; s. c, 
 67 Am. Dec. 459; Miller v. Gilleland, 19 
 Pa. St. 119; Robinson v. Phoenix Ins. 
 Co., 25 Iowa, 430; Booth v. Powers, 56 
 N. Y. 22; Moge V. Herndon, 30 Miss. 120. 
 
 In other cases it has, however, been de- 
 cided that an immaterial alteration frau- 
 dulently made avoids the instrument. 
 Turner v. Billagram, 2 Cal. 523; r 
 Greenl. on Ev. 56S. 
 
 'n Missouri it has been held that any 
 alteration, material or immaterial, made 
 fraudulently or innocently, avoids a note 
 in the hands of the one who made the 
 alteration. Evans v. Foreman, 5o Mo. 
 449; German Bank v. Dunn, 62 Mo. 79; 
 Moore v. Hutchinson, 6g Mo. 429; 
 Morrison v. Garth, 78 Mo. 434; First 
 Nat. Bank of Springfield w. Fricke, 75 
 Mo. 178; s. c, 42 Am. Rep. 399. 
 
 B. F. C. C, a member of the firm of 
 Champion & Co., executed a promissory 
 note in his own name, and procured the 
 signature of two persons thereon as his 
 indorsers. Subsequently, before pro- 
 curing sale of the note, without their 
 knowledge he added to his signature 
 the words "& Co." thus making it B. 
 F. C. C. & Co. ; and the indorsers were 
 held discharged, although it was con- 
 tended that the words "& Co." did not 
 vary the contract, as there was no such 
 firm in existence, and that the added 
 words might be treated as a flourish, 
 meaning nothing. Haskell v. Champion, 
 30 Mo, 136. 
 
 But compare Wlliams v. Jensen, where 
 it was held that the addition of the sig- 
 nature of a married woman without a 
 separate estate to a note already issued 
 was a nullity, without any legal effect 
 whatever, and therefore to be considered 
 as no alteration, and not to discharge 
 the original parties. 75 Mo. 681. 
 
 I C. of L.— 33 
 
 601 
 
material. 
 
 ALTERATION OF INSTRUMENTS. 
 
 Effect. 
 
 3. Material Alterations. — Effect of Material Alterations. — A wilful 
 and material alteration of a written instrument made by one of 
 the parties to it, after execution, and without the authority or 
 consent of the other party, defeats any rights he would otherwise 
 have under it.^ 
 
 In Deeds. — An alteration in a deed by a grantee when material 
 and made with fraudulent intent and after delivery, although dis- 
 abling him from brining an action upon its covenants, will not 
 affect his legal title to the thing which passed by the deed.® 
 
 The alteration of a deed in an immateri- 
 al part by the grantee has in some cases 
 been held to avoid the deed as to him. 
 Herdman v. Bratten, 2 Har. (Del.) 396; 
 Morris v. Vanderen, i Dall. (U. S.) 67; 
 Smith V. Weld, 2 Pa. St. 54^ Barrett v. 
 Thorndike, i Greenl. (Me.) 73; Lewis v. 
 Payn, 8 Cow. (N. Y.) 71; s. c, 18 Am. 
 Dec. 427; Nunnery v. Cotton,' i Hawks. 
 (N. Car.) 222; Wright v. Wright, 2 Halst. 
 (N. J. ) 175; s.c, II Am. Dec. 546; Lime- 
 stone V. Penick, 5 T. B. Mon. (Ky.) 31. 
 
 In others it has been doubted or de- 
 nied. Hatch V. Hatch, 9 Mass. 307; 
 Hunt I'. Adams, 6 Mass. 519; Smith v. 
 Crooker, 5 Mass. 538; Langdon v. Paul, 
 20 Vt. 217; Pardee v. Lindley, 31 111. 174; 
 Hale V. Russ. i Greenl. (Me.) 334; Gar- 
 dinier v. Sisk, 3 Pa. St. 326; Burkholder 
 V. Lapp, 31 Pa. St. 322; Devinney v. 
 Reynolds, i W. & S. (Pa.) 328; Robertson 
 ■V. Hay, 91 Pa. St. 242; McKibben v. 
 Newell, 41 111. 461; Nichols v. Johnson, 
 10 Conn. 192. 
 
 1. Richmond Mfg. Co. v. Davis, 7 
 Blackf. (Ind.) 412; Dietz v. Harder, 72 
 Ind. 208; Boston v. Benson, 12 Cush. 
 (Mass.)6i;Homerw. Wallis, 11 Mass. 309; 
 s. c, 6 Am. Dec. 169; Burnham v. Ayer, 
 35 N. H. 351; Haines v. Dennett, 11 N. 
 H. 180; Tillon V. Clinton, etc., Mut. 
 Ins. Co., 7 Barb. (N. Y.) 564; Kennedy 
 V. Crandell, 3 Lans. (N. Y.)i; Flint v. 
 Craig, 59 Barb. (N. Y.) 319; Nunnery v. 
 Cotton, I Hawks. (N. Car.) 222; Davis 
 ■V. Coleman, 7 Ired. L. (N. Car.) 424; 
 Mills V. Starr, 2 Bailey (S. Car.) 359, 
 Wheelock v. Freeman, 13 Pick. (Mass.) 
 165; Newell v. Mayberry, 3 Leigh. (Va.) 
 250; s. c. , 23 Am. Dec. 261; Osborne v. 
 Van Houten, 45 Mich. 444; Knoxville 
 Nat. Bank v. Clarke, 51 Iowa, 264; 
 Oakey v. Wilcox, 3 How. (Miss.) 330; 
 King V. Hunt, 13 Mo. ,97. 
 
 Even if made without a fraudulent in- 
 tent. Marshall v. Gongler 10 S. & R. 
 (Pa.) 164; Fay v. Smith, i Allen (Mass.), 
 477; s. c, 79 Am. Dec. 752; Murray v. 
 Graham, 29 Iowa, 520. 
 
 And he will not be permitted to estab- 
 lish the contract by other evidence, nor 
 
 502 
 
 even avail himself of it as it existed be- 
 fore the alteration. Bonds and other 
 written agreements come within this 
 rule. Newell o. Mayberry, 3 Leigh. 
 (Va.) 250; s. u., 23 Am. Dec. 261. 
 
 Even if the alteration be done after the 
 signing but before delivery of the instru- 
 ment. Pew V. Laughlin, 3 Fed. Rep. 39. 
 
 The instrument will be void even in 
 the hands of a bona-fide purchaser for 
 value. State Savings Bank v. Shaffer, 9 
 Neb. i; Horn v. Newton Savings Bank, 
 32 Kans. 518. 
 
 An alteration in a note which discharges 
 it discharges also the mortgage by which 
 it is secured. Tate w. Fletcher, 77 Ind. 
 102. 
 
 A material alteration of a bond or note 
 after its execution, when intentionally 
 made by one having an interest in it, and 
 without the consent of the party bound 
 by it, invalidates the instrument as to 
 such party. Dobyns v. Rawley, 76 Va. 
 544- 
 
 Q. borrowed of W. $1000 upon his 
 note indorsed by S. Afterwards, with- 
 out the consent or knowledge of S., but 
 with the knowledge and consent of W., 
 the note was altered by Q., and raised 
 to $1500, as security for an additional 
 $500 which thereupon W. lent Q. Held, 
 the alteration invalidated the note entirely 
 as to S. Batchslder v. White, 80 Va. 
 103. 
 
 But the alteration of a written instru- 
 ment evidencing an executed contract by 
 the beneficiary thereunder for whom the 
 contract has performed its office will not 
 discharge the other party. So will the 
 insertion of the name of another party in 
 a bill of sale after its execution and de- 
 livery and after possession of the prop- 
 erty has been taken thereunder by the 
 vendee not divest him of the right of 
 possession. Ransier v. Vanorsdol, 5 
 Iowa, 130. 
 
 2. Woods V. Hilderbrand, 46 Mo. 284; 
 s. c, 2 Am. Rep. 513; Lewis v. Payn, 
 8. Cow. (N. Y.) 71; s. c, 18 Am. Dec. 
 427; Jackson w. Gould, 7 Wend. (N. Y.) 
 364; Herrick v. Malin, 22 Wend. (N. Y.) 
 
material. 
 
 AL TERA TION OF INSTR UMENTS. By Consent. 
 
 By Consent. — Whenever an alteration has been made by com- 
 mon consent of the parties or before deHvery, the instrument will 
 not be avoided.^ 
 
 388; Alexander v. Hickox, 34 Mo. 496; 
 Miller v. Gilleland, 19 Pa. St. 119; Jack- 
 son V. Chase, 2 Johns. (N. Y.) 84; Hatch 
 V. Hatch, 9 Mass. 307; Dana v. Newhall, 
 13 Mass. 498; Nicholson v. Halsey, i 
 Johns. Ch. (N.Y.)4i7;Sraithz'. McGowan, 
 3 Barb. (N. Y.) 404; Raynor v. Wilson, 6 
 Hill (N. Y.), 469; Fletcher v. Mansur, 5 
 Ind. 267; Chessman v. Whittemore, 23 
 Pick. (Mass.) 231; Rifener v. Bowm&n, 
 53 Pa. St. 318; Jackson v. Jacoby, 9 Cow. 
 (N. Y.)i25; Withers v. Atkinson, i Watts 
 (Pa.), 237; Bliss V. Mclntyre, 18 Vt. 466; 
 s. c, 80 Am. Dec. 766; Coit w. Stark- 
 weatlier, 8 Conn. 289; Wallace v. Harm- 
 stad, 44 Pa. St. 492; s. c, 53 Am. Dec. 
 603. 
 
 The old law was much more severe on 
 alterations in deeds. There it was held 
 that a deed becomes void where after 
 its due execution it is altered by erasure, 
 interlining, addition, drawing a line 
 through the words though they are still 
 legible, or by writing new letters upon the 
 old in any material part of it, by the 
 obligor or any stranger without the priv- 
 ity of the obligee; and if the obligee him- 
 self alters the deed by any of said ways, 
 although in words not material yet the 
 deed is void. Pigot's Case, 11 Co. 27; 
 Letcher v. Bates, 6 J. J. Marsh. (Ky.) 
 525. 
 
 Although an alteration of a deed by 
 the grantee does not divest him from the 
 title to whatever passed by the delivery 
 of the deed, he will be barred from claim- 
 ing any future benefits under it; as in 
 the case of executory contracts, which 
 cannot be enforced by him; neither will 
 his assignees have any better right. 
 Herrick v. Malin, 22 Wend. (N. Y.) 388; 
 People V. Muzzy, i Denio (N. Y.), 239. 
 Briggs w. Glenn, 7 Mo. 572; Hatch v. 
 Hatch, 9 Mass. 307; Barrett v. Thorn- 
 dike, I Greenl.(Me.) 73; Bliss v. Mclntyre, 
 18 Vt. 466; Waring v. Smith, 2 Barb. Ch. 
 (N. Y.) iTg; s. c, 47 Am. Dec. 299; 
 Com. V. Hanion, i Nott. & M. (S. Car.) 
 554; Hefelfinger v. Shutz, 16 S. & R. 
 (Pa.) 44. 
 
 An alteration of a deed in a material 
 part after execution by the grantor affects 
 only -such executory interests as he may 
 have in it, as reserved rents, and conveys 
 the thing granted to the grantee, but dis- 
 charged from the covenants. Arrison v. 
 Harmstead, 2 Pa. St. 191. 
 
 Whether an altered deed may be set 
 up in evidence to support the title which 
 passed by it seems to be an unsettled 
 
 question. The decisions are both ways. 
 Chesley v. Frost, i N. H. 145; Withers 
 V. Atkinson, I Watts (Pa.), 236; Babb v. 
 Clemson, 10 S. & R. (Pa.) 419; s. c, 13 
 Am. Dec. 684; Newell v. Mayberry, 3 
 Leigh. (Va.) 250; s. c, 23 Am. Dec. 261; 
 Woods V, Hilderbrand, 46 Mo. 284; and 
 see Doe v. Hirst, 3 Stark. 60; Jackson 
 V. Gould, 7 Wend. (N. Y.) 364; Lewis 
 V. Payn, 8 Cow. (N. Y.) 71; s. c, 18 Am. 
 Dec. 427. 
 
 As an alteration in a deed does not 
 affect the title to the thing passed by it, 
 it follows that no alteration, as the tear- 
 ing off of a seal or the signature, not even 
 the destruction of the deed, can act as a 
 re-conveyance. Arrison v. Harmstead, 
 2 Pa. St. 191; Miller v. Gilleland, 19 Pa. 
 St. 119; King V. Gilson, 32 111. 348; 
 Woods V. Hilberbrand, 46 Mo. 284; 
 Stanley v. Epperson, 45 Tex. 644; Parker 
 V. Kane, 4 Wis. i; s. c, 65 Am. Dec. 283; 
 Wilke V. Wilke, 28 Wis. 296; Flinn v. 
 Brown, 6 Rich. (S. Car.) 209; Tibean v. 
 Tibean, 19 Mo. 78; Strawn v. Norris, 2i 
 Ark. 80; Fonda v. Sage, 46 Barb. (N. Y.) 
 109; Parshall v. Shirts, 54 Barb. (N. Y.) 
 99; Linker v. Long, 64 N. Car. 296; Jack- 
 son V. Gould, 7 Wend. (N. Y.) 364. 
 
 But it seems that in some States the 
 destruction or return of an unrecorded 
 deed re-conveys the estate. Mussey v. 
 Holt. 24 N. H. 248; s. c, 55 Am. Dec. 
 234; Dodge V. Dodge, 33 N. H. 487; 
 Sawyer v. Peters, 50 N. H. 143; Thomp- 
 son V. Thompson, 9 Ind. 323; s. c, 68 
 Am. Dec. 638; Parker v. Kane, 22 How. 
 (U. S.) I. 
 
 A deed fraudulently altered becomes 
 void, and a bona-fide purchaser from party 
 altering the deed takes nothing by it. 
 Wallace v. Harmstead, 15 Pa. St. 462; 
 s. c, 53 Am. Dec. 603. 
 
 But a doubtful alteration in a deed does 
 not warrant its exclusion from evidence. 
 Davis V. Fuller, 12 Vt. 178; s. c, 36 Am. 
 Dec. 334. 
 
 An alteration in a material part of a 
 bond by a party to it invalidates it as to 
 all the parties not consenting. Long w. 
 Mason, 84 N. Car. 15; Briggs v. Glenn, 
 7 Mo. 572. 
 
 1. Ravisiesw. Alston, 5 Ala. 297; Stew- 
 art V. Preston, i Fla. 10; s. c, 44 
 Am. Dec. 619; Wilkes v. Caulk, 5 Harr. 
 & J. (Md.) 36; Boston v. Benson, > 12 
 Cush. (Mass.) 61; Wright v. Wright, 7 
 N. J. L. 175; s. c, II Am. Dec. 546; 
 Camden Bank v. Hall, 14 N. J. L. 583; 
 Campbell v. McArthur, 2 Hawks. (N. 
 
 503 
 
Material, 
 
 ALTERATION OF INSTRUMENTS. 
 
 Bestored. 
 
 Alteration Restored. — An innocent alteration may be erased be- 
 fore transfer, and a note so altered and restored will be good in 
 the hands of a subsequent assignee.* 
 
 Car.), 33; s. c, II Am. Dec. 737; Brit- 
 ton V. Stanley, 4 Whart. (Pa.) 114. 
 
 But it must be done with the consent 
 of all the parties. A material alteration 
 by one of the makers of a note with the 
 consent of the payee without the knowl- 
 edge or consent of the other makers 
 avoids it as to them. McVey v. Ely, 5 
 Lea , (Tenn.), 438. Compare Canon v. 
 Grigsby, 116 111. 151. 
 
 By consent of all the parties concerned, 
 an alteration may be made in a deed or 
 other specialty after execution, and the 
 law presumes a re-execution when so 
 altered. WooUey v. Constant, 4 Johns. 
 (N. Y.) 54; s. c, 4 Am. Dec. 246; 
 Speake v, U. S., g Cranch (U. S.), 28; 
 Barrington v. Bank of Washington, 14 
 S. & R. (Pa) 405; Smith v. Weed, 20 
 Wend. (N.Y.) 184; s. c, 32 Am. Dec. 525; 
 Berry v. Haines, 4 Wheat. (U. S.) 17; 
 Stiles V. Probst, 6g 111. 382; Penny v. 
 Corwaithe, 18 Johns. (N.Y.) 499; Tomp- 
 kins V. Corwin, g Cow. (N. Y.) 255. 
 
 In a suit on an administrator's bond 
 which by mistake was made out for $150 
 and the' word "thousand" afterward in- 
 serted. It was held that the intention of all 
 the parties to make it a bond for $150,- 
 000 may be shown. Jackson v. Johnson, 
 67 Ga. 167. 
 
 It has, however, also been held that 
 where an interlineation is made in a 
 trust deed by consent of all the parlies, 
 said deed as altered must be again exe- 
 cuted and delivered. Execution and re- 
 cord of the interlineations only will not 
 legally alter the deed, but leave it as it 
 was. Collins v. Collins, 51 Miss. 311; 
 s. c, 24 Am. Rep. 632. 
 
 But where a man sold the undivided 
 half of a lot, and some time afterward, 
 the deed not bfeing recorded, sold the 
 other half to the same party and struck 
 in the deed the words "one undivided 
 half " and " redelivered " the deed, it was 
 held to be a good conveyance. Bassett 
 ■i/. Bassett, 55 Me. 125. 
 
 Alterations or intferlineatioris in a 
 deed, in the handwriting of the grantor, 
 made before or concurrently with its 
 execution, do not affect its validity or 
 operation; alterations made by him, or 
 by his authority, after acknowledgment 
 but before delivery, are inoperative with- 
 out a new acknowledgment, when their 
 effect is to enlarge the estate or premises 
 conveyed; but when their effect is to 
 limit or restrict the estate or premises 
 
 conveyed, and they are made by the 
 grantor in pursuance of an intention ex- 
 pressed at the time of the signature and 
 acknowledgment, they take effect from 
 the subsequent delivery of the deed, and 
 a second acknowledgment is not neces- 
 sary. Webbz'. MuUins, 78 Ala. iii. 
 
 Where consent to make an alteration 
 has been given by the parties concerned, 
 the alteration must be made according to 
 the specific terms of the consent, and not 
 be extended beyond it. Coburn v. 
 Webb, 56 Ind. g6; Exp. Decker, 6 Cow. 
 (N. Y.) 5g; Swift v. Barber, 28 Mich. 
 503; Toomer v. Rutland, 57 Ala. 37g. 
 
 Parties who have given their consent 
 to an alteration will not be permitted to 
 withdraw it after obligations or rights 
 have accrued under the instrument as 
 altered. Lemay ii. Johnson, 35 Ark. 225. 
 
 In case of a reformed insurance policy 
 there must be evidence to show that a 
 mistake has been made by both parties, 
 and that the unreformed instrument was 
 not such as it was intended to be when 
 issued and received. McHugh v. Im- 
 perial Fire Ins. Co., 48 How. (N. Y.) 
 Pr. 230; Hoffecker v. New Castle Mut. 
 Ins. Co., 5 Houst. (Del.) loi. 
 
 1. Sliepard v. Whetstone, 51 Iowa, 
 457; Kountz V. Kennedy, 63 Pa. St. 187; 
 Horst V. Wagner, 43 Iowa, 373; s. c, 22 
 Am. Rep. 255. 
 ' Where a written instrument has inno- 
 cently been altered in a material point, 
 the party who made the alteration being 
 mistaken in his right so to do, and it was 
 afterward restored to its original form, it 
 was held not to avoid the instrument. 
 •Kountz V. Kennedy, 63 Pa. St. 187; 
 State Savings Bank v. Shaffer, 9 Neb. i; 
 B. c, 31 Am. Rep. 3g5. 
 
 Even where the signature of a note 
 had been torn off and was. pasted on 
 again the note was not avoided, it being 
 proved that the mutilation was the inno- 
 cent act of a child. Frazer v. Boss, 66 
 Ind. I. 
 
 But it is otherwise when the alteration 
 has been fraudulently made. Citizens' 
 Nat. Bank v. Richmond, 121 Mass. no; 
 Robinson v. Reed, 46 Iowa, 219; War- 
 pole V. Ellison, 4 Houst. (Del.) 322. 
 
 Where it was apparent upon the face of 
 an indemnity bond that it had been al- 
 tered and the alteration restored, no frau- 
 dulent intent being shown, it was held 
 not to avoid the bond. Rogers v. Shaw, 
 59 Cal. 260. 
 
 504 
 
Haterial. 
 
 ALTERATION OF INSTRUMENTS. 
 
 Seeds. 
 
 When Done by a Third Party. — An alteration, although ma- 
 terial, cannot invalidate a written instrument when made by a 
 stranger to the contract.^ 
 
 Deeds. — And this principle holds good as to deeds and other 
 sealed instruments.'-* 
 
 In Material Part. — An alteration to be material must be in a 
 material part of the instrument and affect the rights and liabili- 
 ties of the parties thereto.^ ' 
 
 The accidental erasure of the signature 
 or seal of a surety does not avoid a bond 
 as to the remaining sureties, nor would 
 the restoration of the signature have such 
 effect. Rhoads v. Fredericlc, 8 Watts 
 (Pa.), 448. 
 
 1. Bigelow V. Stilphen, 35 Vt. 521; 
 Nichols V. Johnson, 10 Conn. 192; Union 
 Nat. Bank v. Roberts, 45 Wis. 373; Boyd 
 V. McConnell, 10 Humph. (Tenn.) 68; 
 Lee v. Alexander, g B. Mon. (Ky.) 25; 
 Bellows V. Weeks, 41 Vt. 590; Robertson 
 V. Hay, 91 Pa. St. 242; Williams w. 
 Moseley, 2 Fla. 304; Ford v. Ford, 17 
 Pick. (Mass.) 418; Bridges v. Winters, 
 42 Miss. 135; Cochran v. Nebeker, 48 
 Ind. 45g; Major v. Hansen, 2 Biss. (U. 
 S.) 195; Gorden v. Robertson, 48 Wis. 
 493- 
 
 And when the spoliation be done by 
 an agent of one of the parties, it will not 
 avoid the contract if the agent had no ex- 
 press or implied authority to do it. Van 
 Brunt it. Eoff, 35 Barb. (N. Y.) 501; Col- 
 lins V. Makepeace, 13 Ind. 448; Hunt w. 
 Gray, 35 N. J. L. 227; s. c, 10 Am. Rep. 
 232; Bigelow V. Stilphen, 35 Vt. 521; 
 Miller v. Reed, 3 Grant's Cas. (Pa.) 51; 
 s. c, 27 Pa. St. 244; s. c, 67 Am. Dec. 
 459; Terry v. Hazlewoodi i Duv. (Ky.) 
 104. But Compare Morrison v. Welty, 18 
 Md. i6g. 
 
 A note was materially altered in the 
 amount, and the holder, who could neither 
 read nor write, proved that to his knowl- 
 edge the note had never been out of his 
 possession, and testified that the altera- 
 tion was made neither by him nor his 
 agent, nor by his knowledge or consent. 
 Held, that he could recover the original 
 amount. Drum v. Drum, 133 Mass. 
 566. 
 
 In the absence of fraud even the con- 
 sent of the party claiming under it will 
 not invalidate the instrument. Thorn- 
 ton V. Appleton, 29 Me. 298; Adams v. 
 Frye, 3 Mete. (Mass.) 103; Smith v. Dun- 
 ham, 8 Pick. (Mass.) 246; Marshal -u. 
 Gongler, 10 S. & R. (Pa.) 164; Willard v. 
 Clarke, 7 Mete. (Mass.) 435; Rollins v. 
 Bartlett, 20 Me. 319. 
 
 In case of spoliation recovery can be 
 had upon the instrument in its unaltered 
 
 form if this can be ascertained, or upon 
 proof of its original condition. Waring 
 V. Smyth, 2 Barb. Ch. (N. Y.) 119; s. c, 
 47 Am. Dec. 299; Boyd v. McConnell, 
 JO Humph. (Tenn.) 68. 
 
 Defacement of the seal of a bond by a 
 stranger will not invalidate the bond. 
 .Evans V. Williamson, 79 N. Car. 86. 
 
 A bona-fide holder of a promissory 
 note, from which the place where it was 
 payable, has been erased by an unauthor- 
 ized person and without his knowledge, 
 can recover against the maker. Major 
 V. Hansen, £ Biss. (U. S.) 195. 
 
 2. Rees v. Overbaugh, 6 Cow. (N. Y.) 
 746; Nichols V. Johnson, 10 Conn. 192; 
 Rhoadesj/. Frederick, 8 Watts (Pa.), 448; 
 Medlin v. Platte Co., 8 Mo. 235; s. c, 
 40 Am. Dec. 135; Lee v. Alexander, 9 
 B. Mon. (Ky.) 25; Cutts v. U. S., i 
 Gall. (U. S.) 69; Barrington v. Bank of 
 Washington, 14 S. & R. (Pa.) 405; Lub- 
 bering v. Kohlbrecher, 22 Mo. 596. 
 
 The alteration of a bond by an officer 
 or his deputy who is by law the mere 
 custodian of it will not destroy its 
 validity. State v. Berg, 50 Ind. 496. 
 See Dover v. Robinson, 64 Me. 183. 
 
 The insertion by another of the name 
 of an additional grantee ' without the 
 consent of the original grantee is a mere 
 spoliation which does not affect the 
 rights of the latter even as against a 
 bona-fide purchaser from the person 
 whose name was so inserted, unless the 
 real grantee has been guilty of fraud or 
 negligence whereby the purchaser was 
 misled. John v. Hatfield, 84 Ind. 75. 
 
 3. Blair v. Bank of Tennessee, 11 
 Humph. (Tenn.) 84; Newell v. May- 
 berry, 3 Leigh. (Va.) 250; s. c, 23 Am. 
 Dec. 261 ; Kincannon v. Carroll, 9 Yerg. 
 (Tenn.) 11; s. c, 30 Am. Dec. 391; In- 
 glish V. Breneman, 5 Ark. 377; s. c. , 41 
 Am. Dec. 96; Humphreys v. Crane, 5 
 Cal. 173; Wheelock v. Freeman, 13 
 Pick. (Mass) 165; s. c, 23 Am. Dec. 
 674. 
 
 The fact of the alteration in a ma- 
 terial part of an instrument is sufficient 
 to destroy the identity of the instrument 
 even when made with an honest intent 
 and under a. mistaken idea of right. 
 
 505 
 
Katerial. 
 
 ALTERATION OF INSTRUMENTS. 
 
 Parties, 
 
 Change of Parties. — Any change in the personality, number, or 
 relations of the parties to an instrument is as- a general rule a 
 material alteration. ^ 
 
 State Savings Bank v. Shaffer, 9 Neb. i; 
 s. c, 31 Am. Rep. 395; Booth v. Powers, 
 56 N. Y. 22; Fay v. Smith, i Allen 
 (Mass.), 477; s. c, 79 Am. Dec. 752; 
 Evans v. Foreman, 60 Mo. 449; German 
 Bank v. Dunn, 62 Mo. 79; Moore v. 
 Hutchinson, 69 Mo. 429; Draper v. 
 Wood, 112 Mass. 315; s. c, 17 Am. 
 Rep. 92. 
 
 One who has been intrusted with a 
 promissory note by the maker to nego- 
 tiate it has no implied authority to make 
 alterations in any material part of the 
 mstruraent. He cannot even make an 
 alteration favorable to the maker. Co- 
 burn V. Webb, 56 Ind. 96; Lemay v. 
 Williams, 32 Ark. i66. 
 
 And the fact that the agent is one of 
 the joint makers does not alter the prin- 
 ciple. Schnewind v. Hackett, 54 Ind. 
 248. 
 
 1. 2 Daniel on Neg. Instr. § 1387. 
 
 An alteration in the name of the payee 
 is in a material part of the note. So 
 held in Stoddard v. Penniman, where 
 in a note which read " payable to my- 
 self ' the word " myself " was erased and 
 another name substituted. 108 Mass, 
 366; s. c, II Am. Rep. 363; Patch v. 
 Washburn, 16 Gray (Mass.), 82; Brown 
 V. Butler, 99 Mass. 179; Clapp v. Rice, 
 13 Gray (Mass.), 403; Cumberland Bank 
 V. Hall, I Hals. (N. J.) 262; Davis v. 
 Bauer, 41 Ohio St. 257; Broughton v. 
 Fuller, 9 Vt. 373; Bell w. \^akyn, 29 N. 
 Western Repr. (Iowa), 331. 
 
 A change in the name of a maker or a 
 surety or an indorser is a material altera- 
 tion. Broughton v. Fuller, g Vt. 373; 
 German Bank v. Dunn, 62 Mo. 79; 
 Stoddard v. Penniman, 108 Mass. 366; 
 s. c, II Am. Rep. 363; First Nat. Bank 
 V. Fricke, 75 Mo. 178; s. c, 42 Am. 
 Rep. 395. 
 
 The act of an indorsee of negotiable 
 paper in changing a special indorsement 
 to himself so that it shall be in blank 
 cannot alter the title by which he holds 
 the paper. Minor v. Bewick, 55 Mich. 
 491. 
 
 The addition of the name of a maker 
 to an instrument already signed by 
 several makers is a material alteration. 
 It discharges the original makers and 
 binds the additional signer. Hamilton 
 V. Hooper, 46 Iowa, 515; Dickerman i;. 
 Miner, 43 Iowa, 508; Hall v. McHenry, 
 19 Iowa, 521; Wallace v. Jewell, 21 
 Ohio (N. S.) 163; Lunt v. Silver, 5 Mo. 
 
 App. 186; Haskell v. Champion, 30 Mo. 
 136; Henry v. Coats, 17 Ind. i6i; phipp 
 V. Suggett, 9 B. Mon. (Ky.) 5. Com- 
 pare Brownell v. Winnie, 29 N. Y. 400; 
 Mersman v. Werges, 112 U. S. 139. 
 
 In this last case it was held that the 
 addition of a wife's name to a note by 
 the partner of her husband without the 
 knowledge or consent of eitherhusband 
 or wife was immaterial, the note being 
 secured by a mortgage on her land exe- 
 cuted by herself and her husband. 
 
 The addition of a name as a maker 
 when the instrument is signed by only 
 one maker is in some cases regarded as 
 a material, in others as an immaterial, 
 alteration. In tlie latter case the, party 
 whose name is added is regarded as a 
 guarantor. Partridge v. Colby, ig Barb. 
 (N. Y.) 248; McVean v. Scott, 46 Barb. 
 (N. Y.) 379; Muir u. Demaree, 12 Wend. 
 (N. Y.) 468; Chappell v. Spencer, 23 
 Barb. (N. Y.) 584; Brownell v. Winnie, 
 29 N. Y. 400; McCaughey v. Smith, 27 
 N. Y. 39; Card v. Miller, I Hun (N. Y.), 
 504; Miller v. Finley, 26 Mich. 249; Gano 
 V. Heath, 36 Mich. 441; Sullivan v. Rudi- 
 sill, 63 Iowa, 158. 
 
 Where a mortgagee fraudulently ob- 
 tained the signature of a wife to a mort- 
 gage which was originally executed by 
 the husband alone, with the understand- 
 ing that the wife was not to join him, 
 and the mortgagee so altered the mort- 
 gage and acknowledgment as to make it 
 a mortgage executed by them jointly, it 
 was held to be a material alteration 
 which avoided the mortgage. Cutler v. 
 Rose, 35 Iowa, 456. 
 
 The addition of new sureties without ■ 
 the consent of the original surety is a 
 material alteration which discharges the 
 not consenting surety. Bowers v. Briggs, 
 20 Ind. 139; McVean v. Scott, 46 Barb. 
 (N. Y.)379. 
 
 But it docs not discharge the principal. 
 Miller v. Finley, 26 Mich. 249. But see 
 Ward V. Hackett, 30 Minn. 150. 
 
 The erasure of the name of one obligee- 
 or obligor and the substitution of an- 
 other avoids a bond or other written in- 
 strument as to the parties not assenting. 
 Smith V. Weld, 2 Pa. St. 54; Dolbier w. 
 Norton, 17 Me. 307; Davis v. Coleman, 
 7 Ired. (N. Car.) 424; Mahaiwe Bank v. 
 Douglass, 31 Conn. 170; State v. P.olke, 
 7 Blackf. (Ind.) 27; Briggs v. Glenn, 7 
 Mo. 572; Barrington v. Bank of Wash- 
 ington, 14 S. & R. (Pa.) 405; Harper v. 
 
 506 
 
Material. 
 
 ALTERATION OF INSTRUMENTS. 
 
 Character, 
 
 Alterations Changing the Character of the Instrument. — An alter- 
 ation in a written instrument which has the effect of changing its 
 character is material. So making a joint and several note from a 
 joint note by interlining the words "jointly and severally," or 
 changing a joint and several note to a joint note by changing the 
 words " I promise" to " We promise." * 
 
 State, 7 Blackf. (Ind.) 6i; GiUett v. 
 Sweat, I Gilm. (111.) 475; Martin v. 
 Thomas, 24 How. (U. S.) 315; Smith v, 
 U. S., 2 Wall. (U. S.) 219 
 
 And the same principle holds good as 
 to sureties. State v. Polke, 7 Blackf. 
 (Ind.) 27; McCramer v. Thompson, 21 
 Iowa, 244; State v. Craig, 58 Iowa, 238; 
 Hall V. McHenry, ig Iowa, 521; Farm- 
 ers & Traders' Bank v. Lucas, 26 Ohio, 
 
 385. 
 
 Theerasureof the word "surety" added 
 to the name of one of the subscribers 
 was held to be immaterial in some cases. 
 Vance v. Collins, 6 Cal. 436. 
 
 But in other cases to be material. 
 Rogers v. Tapp, C. L. J. (Tex.) vol. 14, 
 p. 38. 
 
 Writing the word "security'' over an 
 indorser's name without his authority is 
 a material alteration and discharges the 
 indorser. Robinson v. Reed, 46 Iowa, 
 219. 
 
 An alteration which has the effect of 
 changing an indorser into a guarantor is 
 material. Belden v. Hann, 61 Iowa, 42. 
 
 Or of changing an indorser into a 
 payee. Aldrich v. Smith, 37 Mich. 468. 
 
 In general, anj/ alteration which en- 
 larges the liabilities of the obligors or 
 sureties is material. White v. Johns. 
 24 Minn. 387; Rudesill w. County Court 
 of Jefferson. 85 111. 446. 
 
 Although the addition of the name of 
 a witness to a note as a general rule is 
 not a material alteration in States where 
 an unwitnessed note is barred by the 
 statute of limitations by a less number 
 of years than a witnessed note, such ad- 
 dition will be material. Eddy v. Bond, 
 ig Me. 461; s. c, 36 Am. Dec. 767; Thorn- 
 ton V. Appleton, 29 Me. 298; Brackett v. 
 Mountfort, 11 Me. 115; Willard «/. Clarke, 
 
 7 Mete. (Mass.) 435; Smith v. Dunham, 
 
 8 Pick. (Mass.) 246; Wheelock v. Free- 
 man, 13 Pick. (Mass.) 165; s. c, 23 Am. 
 Dec. 674; Com. v. Emigrants' Bank, 98 
 Mass. 12; Homer v. Wallis, 11 Mass. 
 309; s. u., 6 Am. Dec. 169. 
 
 Adding the name of a witness to a 
 bond or other sealed instrument already 
 witnessed avoids it. Adams v. Frye, 3 
 Mete. (Ky.) 107; Marshall v. Gongler, 
 10 S. & R. (Pa.) 164; Henning v. Werk- 
 heiser, 8 Pa. St. 518. 
 
 Not so when there is no fraudulent in- 
 
 tent. Adams v. Frye, 3 Mete, (Mass.) 
 103; Blackwell v. Lane, 4 Dev. & B. L. 
 (N. Car.) 113; s. i.., 32 Am. Dec. 675. 
 
 Where attesting witnesses to a hond 
 saw only one of the two obligors attach 
 his signature to it and signed a general 
 attestation, it was held that if it was done 
 innocently and without any fraudulent 
 intent it would not avoid the deed. 
 Foust V. Reno, 8 Pa. St. 378; Fritz v. 
 Commissioners, 17 Pa. St. 130. 
 
 Tearing off the name of a subscribing 
 witness is a material alteration. Sharpe 
 V. Bagwell, i Dev. Eq. (N. Car.) 115. 
 
 1. Draper v. Wood, 112 Mass. 315; s, 
 c, 17 Am. Rep. 92; Humphreys v. Guil- 
 low, 13 N. H. 385; s. c, 38 Am. Dec. 
 49g; Hemmenway v. Stone, 7 Mass. 58; 
 Eckert v. Louis, 84 Ind. 99. 
 
 Alterations which make a non-nego- 
 tiable note negotiable, or the reverse, or 
 which change the manner of negotiabil- 
 ity, are material. So will the addition of 
 the words " to bearer" or "to order," or 
 the substitution of the words " to bearer" 
 for " to order," make a negotiable instru- 
 ment void. Bruce v. Westcott, 3 Barb. 
 (N. Y.) 274; Booth V. Powers, 56 N. Y. 
 22, 30; Johnson v. Bank of U. S., 2 B. 
 Mon. (Ky.) 310; State v. Stratton, 27 
 Iowa, 420; Needles v. Shaffer, 60 Iowa, 
 65; Brown v. Straw, 6 Neb. 536; Mc- 
 Auley V. Gordon, 64 Ga. 221 ; Scott v. 
 Walker, Dudley (Ga.), 243; Union Nat 
 Bank v. Roberts, 45 Wis. 373; Pepoonw. 
 Stagg, I Mott & McC. (S. Car.) 102; Da- 
 vis V. Carlisle, 6 Ala. 707; Toomer v. 
 Rutland, 57 Ala. 379; McCoy v. Lock- 
 wood, 71 Ind. 319; Cochran v. Nebeker, 
 48 Ind. 459; Marshal v. Drescher, 68 Ind. 
 359; Mech. Bank v. Valley Packing Co., 
 70 Mo. 643; Belknap v. Bank of N. A., 
 100 Mass. 376; Jones v. Fales, 4 Mass. 
 245; Morehead v. Parkersburgh Nat. 
 Bank, 5 W. Va. 74. 
 
 It has been held, however, that chang- 
 ing the words " to order" for "to bear- 
 er" is not a material alteration. Flint v, 
 Craig, 59 Barb. (N. Y.) 319. 
 
 Nor that it would invalidate a bill of 
 exchange to add after the name of the 
 payee the words "or bearer." McLaugh- 
 lin V. Venine, 2 Wy. i. 
 
 And it will not be a material alteration 
 to add the words " or, bearer" to a note 
 which no words can make negotiable; as. 
 
 507 
 
material. 
 
 ALTERATION OF INSTRUMENTS. 
 
 Payment. 
 
 Place of Payment. — An alteration in the place of payment of a 
 promissory note is material, and avoids it as to parties not con- 
 senting, even in the hands of a bonfl-fide holder for value who has 
 no notice of the alteration. Where the maker so alters the instru- 
 ment without the consent of the indorser, the latter will be dis- 
 charged ; and if made by the payee without the knowledge or con- 
 sent of the maker, it will discharge him.^ 
 
 Time of Payment. — A change in the time of payment of a nego- 
 tiable instrument is a material alteration, and it does not matter 
 whether such change delays or accelerates the payment.® 
 
 Alteration in Principal. — Any alteration in the amount of the 
 principal is material, whether it increases or decreases the 
 amount. 3 
 
 a note expressly made subject to a con- 
 dition. Goodenow v. Curtis, 33 Mich. 
 505. 
 
 Adding a seal to the signature of the 
 maker of a note, or to the signature of 
 one of several malcers of a note, or de- 
 taching the seal of a bond, has the effect 
 of changing the character of the instru- 
 ment, and is a material alteration which 
 avoids it. U. S. v. Linn, i How. (U. S.) 
 104; Marshall z'. Gongler, 10 S. & R. (Pa.) 
 164; Vaughan J/. Fowler, 14 S. Car. 355; 
 s. c, 37 Am. Rep. 731; Piercy v. Piercy, 
 5 W. Va. igg; Biery v. Haines, 5 Whart. 
 (Pa.) 563; Powers v. Ware, 2 Pick. (Mass.) 
 451; Rawson v. Davidson, 4g Mich. 607. 
 
 A defacement of the seal of a bond 
 avoids the instrument, if done by the 
 obligee. Evans v. Williamson, 79 N. Car. 
 86. 
 
 1. Woodworth v. Bank of America, 19 
 Johns. (N. Y.) 391; s. c, 10 Am. Dec. 
 C39; White V. Haas, 32 Ala. 430; s. c, 
 70 Am. Dec. 548; Nazro v. Fuller, 24 
 Wend. (N. Y.) 374; Whiteside v. Northern 
 Bank of Ky., 10 Bush(Ky.), 501; Towns- 
 end V. Star Wagon Co., id Neb. 615; 
 Bank of Ohio Valley v. Lockwood, 13 W. 
 Va. 392; Sudler v. Collins, 2 Hous. (Del.) 
 •538; Morehead v. Parkersburgh Nat. 
 Bank, 5 W. Va. 74; Hill v. Cooley, 46 
 Pa. St. 259; Oakey v. Wilcox, 3 How. 
 "(Miss.) 330; Charlton v. Reed, 61 Iowa, 
 166; Adair z/. Egland, 58 Iowa, 314; Mc- 
 Coy V. Lockwood, 71 Ind. 319. 
 
 Where, however, a negotiable instru- 
 ment has been made payable at a particu- 
 lar town or city, without designating a 
 specified place, it will be no material al- 
 teration for the acceptor to insert the 
 name of a bank or other business place 
 as the place of payment, provided such 
 bank is situated in the same town or city. 
 Troy City Bank v. Lauman, ig N. Y. 
 477; Niagara Dist. Banks'. Fairman, 31 
 Barb. (N. Y.) 403; Shuler c. Gillette, 12 
 
 Hun (N. Y.), 280; Walker v. Bank of 
 State, 13 Barb. (N. Y.)636; Toddz/. Bank 
 of Ky., 3 Bush(Ky.), 626. 
 
 2. Wyman v. Yeomans, 84 111. 403; 
 Lisle V. Rogers, 18 B. Mon. (Ky.) 528; 
 Hocker v. Jamison, 2 Watts & S. (Pa.) 
 438; Heywood v. Perrin, 10 Pick. (Mass.) 
 228; Kings'. Hunt,' 13 Mo. 97; Inglishs/. 
 Breneman, 5 Ark. 377; s. c, 41 Am. 
 Dec. 96. 
 
 The same principle will be applied to 
 deeds and other sealed instruments. Stay- 
 ner v. Joice, 82 Ind. 35; s. c. 47 Am. Dec. 
 299; Waring ». Smyth, 2 Barb. Ch. (N. 
 Y.) iig; s. c, 47 Am. Dec.^gg. 
 
 An alteration which changes the time 
 of payment only for a single day is ma- 
 terial. Kennedy v. Lancaster Co. Bank, 
 l8 Pa. St. 347; Stephen ij. Graham, 7 S. 
 & R. (Pa ) 505; s. c. , 10 Am. Dec. 485. 
 
 3. Bank of Commerce v. Union Bank, 
 3 N. Y. 230; Goodmans;. Eastman. 4 N.H. 
 455; Stephens v. Graham, 7 S. & R. (Pa.) 
 505; s. c. 10 Am. Dec. 485; Hewins v. 
 Cargill, 67 Me. 554; State Savings Bank 
 V. Shaffer, g Neb. i; Chism v. Toomer, 
 27 Ark. 108; jEtna Bank v. Winchester, 
 43 Conn. 3gi; Portage Co. Bankw. Lane, 
 8 Ohio St. 405; Greenfield Bank v. 
 Stowell, 123 Mass. ig6; s. u., 25 Am. 
 Rep. 67; Woolfolk s-. Bank of America, 
 ID Bush (Ky.), 504. 
 
 If made by one of several makers of a 
 note it will discharge the others if not 
 consenting. Greenfield Bank v. Stowell, 
 123 Mass. ig6; s.c, 25 Am. Rep. 67; Hew- 
 ins V. Cargill, 67 Me. 554. 
 
 An indorsement of a pretended partial 
 payment, before or at the time of its 
 .delivery to the payee, was held to be a. 
 material alteration which discharges the 
 surety. Johnston v. May, 76 Ind. 293. 
 
 But, where, pending a suit upon a note, 
 an agreement was entered into that the 
 holder should credit $50 on the note, if 
 the balance was paid at a certain date, 
 
 508 
 
Katerial. 
 
 ALTERATION OF INSTRUMENTS. 
 
 Property. 
 
 Consideration. — Inserting or erasing words expressive of a stated 
 consideration is a material alteration.* 
 
 Description of Property. — Any alteration in the description of 
 property, by which payment is secured, in a mortgage or other 
 written instrument, avoids the instrument.* 
 
 Alterations in Interest. — An alteration making a note bear in- 
 terest which it originally did not, or in general any alteration 
 regarding the interest, is material. ^ 
 
 Marine Bank v. City Bank, 59 N. Y. 67; 
 Espy V. Bank of Cincinnati, 18 Wall. 
 (U. S.) 604 ; Redington v. Woods, 45 
 Cal. 406; Nat. Park Bank v. Ninth Nat. 
 Bank, 46 N. Y. 77; Third Nat. Bank v. 
 Allen, 59 Mo. 310; Parke v. Roser, 67 
 Ind. 500. But compare Louisiana Nat. 
 Bank z/. Citizens' Bank, 28 La. Ann. 189; 
 Helwege v. Hibernia Nat. Bank, 28 La. 
 Ann. 520. 
 
 1. Low V. Argrove, 30 Ga. I2g; Ben- 
 jamin V. McConnell, 4 Gill (111,), 536; s. 
 c, 4b Am. Dec. 474; Wait v. Pomeroy, 
 20 Mich. 425. 
 
 An increase of the consideration of a 
 mortgage by a mortgagee after delivery, 
 without the knowledge of the mortgagor, 
 avoids it. Johnson v. Moore, 33 Kan. go. 
 
 2. Marcy v. Dunlap, 5 Lans. (N. Y.) 365. 
 In this case a married woman executed 
 a mortgage, to secure a debt of her hus- 
 band, upon property which she supposed 
 belonged to her. After delivery the 
 plaintiff discovered that the property was 
 described by the wrong number, and ap- 
 plied to defendants' attorney to have it 
 rectified. Without the knowledge of 
 defendant, but by his attorney, and in 
 the presence of plaintiff's attorney, the 
 alteration was made. Held, that the 
 alteration avoided the mortgage. 
 
 An officer taking the acknowledgment 
 of a deed or mortgage cannot, after the 
 execution of the instrument, change the 
 description of the premises mortgaged or 
 conveyed without the assent of the mort- 
 gagor or grantor, even to make the 
 description conform to the contract as he 
 understood it. Perean v. Frederick, 17 
 Neb. 117; Enterprise Transit Co. v. 
 Sheedy, 103 Pa. St. 492 ; s. c, 49 Am. 
 Rep. 130. 
 
 Inserting words making a note a charge 
 upon the separate estate of a married 
 woman avoids it. Reeves v. Pierson, 23 
 Hun (N. Y.). 185; Taddiken v. Cantrell, 
 6g N. Y. 597. 
 
 3. Washington Savings Bank v. Ecky, 
 51 Mo. 272; Fulmer v. Seitz, 68 Pa. St. 
 237; s. c, 8 Am. Rep. 172; Neff v. Hor- 
 ner, 63 Pa. St. 327; s. c, 3 Am. Rep. 555; 
 Kountz V. Kennedy. 63 Pa. St. 187; s. c, 
 3 Am. Rep. 541; McGrath v. Clark, 56 
 
 and a payment of $50 was indorsed on 
 the note; but where the maker failed to 
 pay at the appointed time and the in- 
 dorsement of credit was erased, it was 
 held not to avoid the note. Chamberlin 
 V. White, 79 111. 549. 
 
 Inserting, erasing, or altering words 
 describing the medium of payment is 
 material, and avoids a negotiable instru- 
 ment, as where the words "gold" or 
 "specie" are inserted or erased after 
 dollars. Bogarth v. Breedlove, 39 Tex. 
 561; Darwin v. Rippey, 63 N. Car. 318; 
 Church V. Howard, 17 Hun (N. Y.), 5; 
 Springfield Bank v. Merrick, 14 Mass. 
 322. 
 
 And where, in an application for a loan 
 from an insurance agency, the agent 
 through whom the loan was negotiated 
 changed the words " ih drafts to order of 
 H. G. A." to "current funds," after the 
 applicant had signed the application, and 
 went to the Home Office, collected the 
 funds, and absconded, the alteration was 
 held material so as to avoid the instru- 
 ment and absolve the applicant Angle 
 V. Northwestern Ins. Co., 92 U. S. 330. 
 
 The same principle applies where the 
 amount is payable in merchandise. Any 
 alteration in the description of the goods 
 will invalidate the instrument. As insert- 
 ing the word "young" before "mer- 
 chantable neat stock." Martindale v. Fol- 
 lett, I N. H. 95. Or "good hard " before 
 "wood." Schwalm v. Mclntyre, 17 Wis. 
 232. 
 
 An alteration in the amount of a check 
 avoids it. A bank which pays a check 
 which it had certified, but which, either 
 before or after the certification, was 
 altered by raising the amount, is not 
 estopped from recovering back the money 
 paid. The bank is not bound to know 
 anything more than the drawer's signa- 
 ture, and in the absence of any circum- 
 stance which inflicts injury upon another 
 party there is no reason why the bank 
 should not be reimbursed. Its certifica- 
 tion of the check does not preclude it 
 from showing an alteration. Nat. Bank 
 of Commerce v. Nat. Mech. Bank Assoc, 
 55 N. Y. 211; s. c, 14 Am. Rep. 232; 
 Security Bank v. Bank, 67 N. Y. 458; 
 
 509 
 
Uaterial. 
 
 ALTERATION OF INSTRUMENTS. 
 
 Date, 
 
 Date. — An alteration in the date of a negotiable instrument 
 avoids it as against prior parties and sureties even in the hands of 
 an innocent holder for value.* 
 
 N. Y. 34; s. c, 15 Am. Rep. 372; Schwarz 
 ». Oppold, 74 N. Y. 307; Kennedy v. 
 Crandell, 3 Lans. (N. Y.) i; Coburn v. 
 Webb, 56 Ind. 96; Dietz v. Harder, 72 
 Ind. 208; Locknane v. Emmerson, 11 
 Bush (Ky.), 69; Warpole v. Ellison, 4 
 Houst. (D5I.) 322; Davis v. Henry, 13 
 Neb. 497; Waterman v. Vose, 43 Me. 
 504; Lewis V. Shepherd, I Mackey (D. C), 
 46; Fay V. Smith, i Allen (Mass.). 477; 
 s. c, 79 Am. Dec. 752; Kennedy v. 
 Moore, 17 S. Car. 464; Brown v. Jones, 
 3 Port. (Ala.) 420; Lamar v. Brown, 56 
 Ala. 157; Holmes v. Trumper, 22 Mich. 
 427; s. c, 7 Am. Rep. 66i. 
 
 Where, after a party has signed a note 
 as accommodation indorser, the words 
 " interest on this note has been paid to 
 maturity" are without his knowledge 
 stricken out, he cannot be held on the 
 note. Hart v. Oehler, 80 Ind. 83. 
 
 So is altering the rate of interest in a 
 note material. Moore v. Hutchinson, 69 
 Mo. 429; Ivory v. Michael, 33 Mo. 398; 
 Evans v. Foreman, 60 Mo. 449; Whit- 
 mer v. Frye, 10 Mo. 348; Schnewind v. 
 Hacket, 54 Ind. 248; Hart v. Clouser, 30 
 Ind. 210; Bowman v. Mitchell, 79 Ind. 
 84; Harsh v. Klepper, 28 Ohio St. 200; 
 Lee V. Starbird, 55 M?. 491; Kilkelly v. 
 Martin, 34 Wis. 525; Holmes i*. Trumper, 
 22 Mich. 427; s. c, 7 Am. Rep. 661; 
 Craighead v. M'cLoney, gg Pa. St. 211. 
 
 Increasing the rate of interest in a note 
 before delivery by one joint-payee avoids 
 it as to a surety not assenting. Thomp- 
 son V. Massie, 41 Ohio St. 307. 
 
 Changing the time when interest should 
 be paid avoids it. Neff v. Horner, 63 Pa. 
 St. 327; Benedict v. Miner, 58 111. ig; 
 Boaltw. Brown, 13 Ohio N. S. 364; Frank- 
 lin Life Ins. Co. v. Courtney, 60 Ind. 134; 
 Dewey v. Reed, 40 Barb. (N. Y.) 16; 
 Glover v. Robbins, 4g Ala. 219; Fay v. 
 Smith, I Allen (Mass.), 477; s. c, 79 Am. 
 Dec. 752; Draper v. Wood, 112 Mass. 
 315; s. c, 17 Am. Rep. 92; Blakeley v. 
 Johnson, 13 Bush (Ky.). 197; s. c, 26 
 Am. Rep. 250; Pattersons. McNeeley, 16 
 Ohio St. 348; Capital Bank w. Armstrong, 
 62 Mo. 59; Brooks v. Allen, 62 Ind. 401. 
 But compare Leonardo. Phillips, 39 Mich. 
 182, 
 
 Where a certificate of deposit was given 
 "payable thirty days after date, with — 
 per cent per annum," and there was no 
 agreement to pay ten per cent, and the 
 holder, when abput to sell it to plaintiff, 
 and to aid such sale, represented that the 
 
 agreement was for ten per cent, and that 
 the blank was left by mistake, whereupon, 
 in his presence and that of plaintiff, 
 plaintiff's agent inserted the figures " 10" 
 in the blank, and plaintiff took the cer- 
 tificate, the alteration was held to be 
 fraudulent and to avoid the certificate. 
 Woodworth v. Anderson, 63 Iowa, 503. 
 
 The addition of the words " at ten per 
 cent" to a bond without the consent of 
 the parties is a material alteration and 
 vacates the same. Long v. Mason, 84 
 N. Car. 15. 
 
 1. Britton v. Dierker, 46 Mo. 591; 
 Brown v. Straw, 6 Neb. 536; Overton v. 
 Mathews, 35 Ark. 147; s. c, 37 Am. Rep. 
 9; Wood V. Steele, 6 Wall. (U. S.) 80; 
 Aubuchon v. McKnight, i Mo. 312; s. c, 
 13 Am. Dec. 502; Lisle v. Rogers, 18 B. 
 Mon. (Ky.)528; Bank of Commonwealth 
 ■V. McChord, 4 Dana (Ky.), 191; Stephen 
 V. Graham. 7 S. & R. (Pa.) 505; s. c, 10 
 Am. Dec. 485; Inglish v. Breneman, 5 
 Ark. 377; s. c, 41 Am. Dec. 96; Craw- 
 ford V. West Side Bank, 100 N. Y. 50. 
 
 Altering the date of a note already due, 
 so as to make it payable at a future date, 
 will avoid it as to parties not assenting. 
 Owings V. Arnot, 33 Mo. 406. 
 
 A promissory note providing for in- 
 terest after maturity was by agreement of 
 the parties thereto dated at a time subse- 
 quent to the real date of its execution; 
 but a subsequent holder, without the 
 knowledge or consent of the maker, 
 struck out the agreed date and inserted 
 the true one. Held, to be a material al- 
 teration. Hamilton!'. Wood, 70 Ind. 306. 
 
 Where a promissory note was delivered 
 to the payee with a blank for the date, 
 and with authority to fill up the blant, 
 and where the payee filled up the blank, 
 and afterward, while the note was yet in 
 his possession, changed the date and in- 
 dorsed it to a bona-fide holder for value, 
 the note was held to be invalidated as to 
 the maker by the alteration. Mitchell v. 
 Ringgold, 5 Harr. & J. (Md.) 159; s. c, 
 5 Am. Dec. 433. 
 
 This principle extends to the place of 
 date. So held where the addition of the 
 words "Washington, D. C." was made 
 to the signature of the maker of a note 
 really made in Pennsylvania with intent 
 to' make it negotiable according to the 
 law of the District of Columbia. Com- 
 mercial Farmers' Bank w. Patterson, 2 
 Cranch. C. Ct. 346; Mahaiwe Bank v. 
 Douglass, 31 Conn. 170. 
 
 510 
 
Katerial. 
 
 ALTERATION OF INSTRUMENTS. Memoranda. 
 
 Memoranda. — In general, erasing, cutting off, or adding any 
 memorandum which affects the note in a material part is material 
 and will avoid a note.^ 
 
 In General. — In general it can be said that any alteration which 
 affects or alters the rights or obligations of any of the parties to a 
 written instrument or which alters it to such an extent that it is 
 no longer the contract which the parties signed, is material.* 
 
 1. Benedict v. Cowden, 4g N. Y. 396; 
 s. c, 10 Am. Rep. 382; Wheelock v. 
 Freeman, 13 Pick. (Mass.) 165; s. c, 23 
 Am. Dec. 674; Wait v. Pomeroy, 20 
 Mich. 425; Johnson v. Heagan, 23 Me. 
 329; Palmer v. Sargent, 5 Neb. 233; s. c, 
 25 Am. Rep. 479. 
 
 Where a note is written on the same 
 paper with a contract or an account 
 stated, modifying the note or its con- 
 sideration, and the note is torn off and 
 transferred as a separate instrument, it is 
 a material alteration. Davis v. Henry, 
 13 Neb. 497; Scofield v. Ford, 56 Iowa, 
 370; State V. Strat.ton, 27 Iowa, 420; s. c, 
 I Am. Rep. 28,2; Wheelock v. Freeman, 
 13 Pick. (Mass.) 165; s. c, 23 Am. Dec. 
 674; Cochran v. Nebeker, 48 Ind. 459. 
 
 But if a memorandum be so attached 
 to a note that it can easily be separated 
 without defacing the note, the note will 
 not be avoided. Zimmermann v. Rote, 75 
 Pa. St. 188; Noll V. Smith, 64 Ind. 511; 
 Cornell v. Nebeker, 58 Ind. 425. But 
 compare Wait J*. Pomeroy, 20 Mich. 425; 
 Benedict v. Cowden, 49 N. Y. 396; Ger- 
 rick V. Glines, 56 N. H. 9. 
 
 The addition of a memorandum to a 
 note by which it is materially affected 
 will also avoid it. So where a memoran- 
 dum was attached to the foot of a note 
 stating that it was secured by a mortgage, 
 the payee, in discovering that the note 
 was not so secured, may rescind the con- 
 tract and demand his money at once. 
 Shaw V. Meth. E. Society, 8 Mete. (Mass.) , 
 223. 
 
 Words on the back of a note are not 
 fiima facie a part of the body thereof, 
 but are presumed to be written after the 
 note is completed. Any alteration in 
 such memorandum need not be ex- 
 plained in a suit on the note, unless it 
 be shown that they form part thereof. 
 Bay V. Shrader, 50 Miss. 326; Krouskop 
 V. Shoutz, 51 Wis. 204; Com. 11. Ward, 2 
 Mass. 397. 
 
 Technical indorsements on the back of 
 a note, or a memorandum annexing a 
 condition to the payment, which was 
 shown to have been on the instrument 
 when delivered, form a substantial part 
 of it, and an erasion of them will avoid 
 the note. Mech. Bank v. Valley Pack- 
 
 ing Co., 70 Mo. 643; McElroy v. Bald- 
 well, 7 Mo. 587; Blake v. Coleman, 22 
 Wis. 415. 
 
 Detaching a memorandum from a 
 promissory note will, however, be a 
 material alteration only when it affects 
 the note in a material part. The maker 
 of a promissory note after signing, but 
 before delivery, added the words "upon 
 condition." The payee afterward de- 
 tached the words. Held, that the words 
 were immaterial and void of legal mean- 
 ing, and that the alteration also was im- 
 material. Palmer v. Sargent, 5 Neb. 233; 
 s. c. , 25 Am. Rep. 479. 
 
 A testator left in his note-book a note 
 for $20 000, payable to his grandson. 
 On the stub was, besides the date, the 
 amount, and the name of the payee, the 
 following memorandum: "To make the 
 amount the same as C. W. C." The 
 grandson tore off the stub and negotiated 
 the note. Held, that the tearing off of 
 the memorandum was not a material al- 
 teration, it being proved that C. W. C. 
 had also received a present of |2o,ooo. 
 Cowee V. Cornell, 75 N. Y. gi. 
 
 A party signed a bond with a condi- 
 tion, and the condition was afterward 
 detached without the knowledge or con- 
 sent of the obligor, so as to make his un- 
 dertaking to pay appear absolute. Held, 
 to be a material alteration which avoided 
 the bond even in the hands of a bona-Jide 
 holder. Longwellz/. Day, i Mich. (N. P.) 
 286. 
 
 2. Where a bill of sale is wilfully al- 
 tered by a vendee so as to include prop- 
 erty not exempt from execution, such 
 bill of sale is not admissible in evidence 
 to the jury. The alteration renders the> 
 instrument null and void. Babb v. Clem- 
 son, 10 S. & R. (Pa.) 419; s. c, 13 Am. 
 Dec. 684. 
 
 The addition of the words' "without 
 defalcation or set-off "is a material alter- 
 ation and avoids a note. Davis v. Car- 
 lisle, 6 Ala. 707. 
 
 Writing "waiver of demand and no- 
 tice" over the name of an indorser and 
 without his authority, is ihaterlal, and dis- 
 charges the indorser. Farmer v. Rand, 
 16 Me. 453. 
 
 Adding the words "with difference of 
 
 511 
 
Material or not. ALTERATION OF INSTRUMENTS. 
 
 Proof. 
 
 4. Whether Material or Not. — Question of Law and of Fact. — It 
 is a matter of law, and consequently for the court to decide, 
 whether an alteration is material or not ; but whether an altera- 
 tion has been made, and by whom and when, are matters of fact 
 for the jury.^ 
 
 Burden of Proof . — Whether, on the production of a written in- 
 strument which obviously has been altered, it is incumbent on the 
 party offering it in evidence to explain this appearance or not, is a 
 vexed question. The books are full of diverse decisions. Four 
 different rules are generally stated : i. That an alteration ap- 
 parent on the face of the writing raises no presumption either way, 
 but the question is for the, jury; 2. That it raises a presumption 
 ■against the writing, and requires, therefore, some explanation to 
 render it admissible; 3. That it raises such a presumption when 
 it is suspicious, otherwise not ; 4. That it is presumed in the ab- 
 
 ■exchange," although done without a fraud- 
 ulent intent and under a mistake of right, 
 is material. Merrick v. Boury, 4 Ohio 
 St. 60. 
 
 If a petition for a road is altered, after 
 signature, in a part not material nor af- 
 fecting the general object sought by the 
 petitioner, though without the knowledge 
 of one of them, he is not discharged from 
 "his liability to contribute to the expenses 
 for which he would otherwise be liable. 
 But he will be discharged if the altera- 
 tion is material, so that the party is 
 Thereby injuriously affected or his expec- 
 tations defeated. Jewett v. Hodgdon, 3 
 Greenl. (Me.) 103; Irvin v. Turnpike Co., 
 2 P. & W. (Pa.) 466; s. c, 23 Am. Dec. 
 ■53; Patridge v Balard, 2 Me. 50; Jewett 
 •u. Cornforth, 3 Me. 107. 
 
 Inserting in a bond for title a provision 
 that the purchaser" shall have immediate 
 possession is a material alteration, and 
 avoids the bond if done by the obligee 
 without the assent of the obligor, even 
 though the addition is according to the 
 actual contract. Kelley v. Trumble, 74 
 III. 42S. 
 
 An alteration in a tax-collector's bond, 
 made without the knowledge of the 
 ■obligor, to have it correspond with a re- 
 assessment and reduction fpr overlay, is 
 material, and prevents any action on it. 
 Doane v. Eldridge, 82 Mass. 254. 
 
 A bond given by a sewing-machine 
 ■agent to his principal and signed by a 
 surety contained the condition that the 
 agent should have on hand at one time 
 no more than six sewing-machines. Af- 
 terward, without the consent of the 
 surety, the contract between the agent 
 and his principal was altered, and he was 
 allowed to have more than six machines 
 on hand. Held, that this alteration of 
 
 the contract discharged the surety. Vic- 
 tor Sewing Machine Co. v, SchefBer, 61 
 Cal. 530. 
 
 A guarantor upon a contract of agency 
 cannot be held if after signing a draft of 
 the agreement to be submitted to the 
 principal the latter so alters it as to en- 
 large the agent's liability, as by requiring 
 him to become responsible for more prop- 
 erty or less salable property than at first 
 contemplated. Osborne v. Van Houten, 
 45 Mich. 444. 
 
 Where the administrator of a. creditor 
 draws an order on a debtor to pay a cer- 
 tain sum, which will be credited on a 
 certain debt, the debtor has no right, 
 without the consent of the administrator, 
 to alter the order so as to make the pay- 
 ment on another debt, and if he pays the 
 order, it will be applied in law to the 
 debt designated by the drawer in the or- 
 der. Long V. Miller, 93 N. Car. 233. 
 
 1. Stahl V. Berger, 10 S. & R. (Pa.) 
 170; s, c, 13 Am. Dec. 665; Stephens v. 
 Graham, 78. & R. (Pa.) 508; s. c, lO 
 Am. Dec. 485; Bowers v. Je.well, 2 N. 
 H. 543; Steele v. Spencers, i Peters (U. 
 S.), 552; State V. Dean, 40 Mo. 464; 
 Keen's Exr. v. Monroe, 75 Va 424; 
 Jones v. Alley, 4 Iowa, 181; Oliver v. 
 Hawley, 5 Neb. 439; Huston v. Plato, 3 
 Colo. 402; Overton v. Mathews, 35 Ark. 
 147; Rogers v. Vosburgh, 87 N. Y. 228; 
 Cass County Bank v. Morrison, 17 Neb. 
 341; s. c. 52 Am. Rep. 417; Western 
 Building Assoc, v. Fitzmaurice, 7 Mo. 
 App. 283; Briscoe v, Reynolds, 51 Iowa, 
 673; Palmer v, Sargent, 5 Neb. 233; s. 
 c, 25 Am. Rep, 476; Haynes v. Haynes, 
 33 Ohio St. 598; Newell v. Mayberry, 
 3 Leigh (Va.), 250; s. u., 23 Am. Dec. 
 261; Ramsey v. McCue, 21 Gratt. (Va.) 
 349- 
 
 513 
 
Material or not. AL TERA TION OF INSTR UMENTS. common Law. 
 
 sence of explanation to have been made before delivery, and there- 
 fore requires no explanation in the first instance. It is impossible 
 to fix a general rule to control all cases. * 
 
 Common-law Rule. — It seems to have been the rule at common 
 law that if an obvious alteration or interlineation appeared in a 
 deed it would nevertheless, in the absence of any opposing testi- 
 
 1. Neil V. Case, 25 Kans. 510; s. c, 37 
 Am. Rep. 259. 
 
 McCrary, C. J., says in the case of 
 Cox V. Palmer: " Upon this question 
 there is an apparent conflict of authority. 
 I think, however, it is apparent only, and 
 not real. There are cases in which it 
 has been held that an interlineation is 
 presumably an unauthorized alteration of 
 the instrument after execution, and that 
 the burden is upon the party offering the 
 instrument in evidence to show the con- 
 trary. There are also cases in which in- 
 terlineations have been held to he prima 
 facie bona fide, and that the burden is upon 
 the party attacl<ing the instrument to 
 show that it was altered after execution. 
 But I think that one rule governs in all 
 the cases, and it is this: If the interlinea- 
 tion is in itself suspicious, as if it appears 
 contrary to the probable meaning of the 
 instrument as it stood before the inser- 
 tion of the interlined words; or if it is in 
 a handwriting different from the body of 
 the instrument, or appears to have been 
 written with different ink — in all such 
 cases, if the court considers the interline- 
 ation suspicious on its face, the presump- 
 tion will be that it was an unauthorized 
 alteration after execution. On the otlier 
 hand, if the interlineation appears in the 
 same handwriting with the original in- 
 strument, and bears no evidence on its 
 face of having been made subsequent to 
 the execution of the instrument, and es- 
 pecially if it only makes clear' what was 
 the evident intention of the parties, the 
 law will presume that it was made in 
 good faith and before execution." Cox 
 V. Palmer, i IVIcCrary (U. S.), 431; citing 
 Stonerz/. Ellis, 6 Ind. 152; Huntington v. 
 Finch, 3 Ohio St. 445; Nichols v. John- 
 son, 10 Conn. 192; Burnham v. Ayer, 35 
 N. H. 351; Beaman v. Russell, 20 Vt. 
 205; s. c, 49 Am. Dec. 775. And see 
 also Wharton's Law of Ev. § 629; Bailey 
 V. Taylor, 11 Conn. 531; s. u., 29 Am. 
 Dec. 321; Hayden v. Goodnow, 39 Conn. 
 164: Sharpen. Orme, 61 Ala. 263; White 
 V. Hass, 32 Ala. 430; s. c. , 70 Am. Dec. 
 54S; Corcoran v. Doll, 32 Cal. 89; Para- 
 more V. Lindsey, 63 Mo. 63; Mathews v. 
 Coalter, 9 Mo. 705; Iron Mountain Bank 
 V. Murdock, 62 Mo. 70: McCormick v. 
 Fitzraorris, 39 Mo. 34; First Nat. Bank 
 
 V. Franklin, 20 Kans. 264; Welsh v. 
 Couborn, 3 Houst. (Del.) 647: Bank of 
 Cass County v. Morrison, 17 Neb. 341^ 
 s. c, 52 Am. Rep. 417; Maybee v. Snif- 
 fen, 2 E. D. Sm. (N. Y.) i; Farnsworth v. 
 Sharp, 4 Sneed (Tenn.), 55; Brown v. 
 Phelon, 2 Swan (Tenn.), 629; Bumpass 
 V. Timms, 3 Sneed (Tenn.), 459; Boothby 
 V. Stanley, 34 Me. 515; Davis z-. Jenney, 
 I Mete. (Mass.) 221; Vose w. Dolan, loS 
 Mass. 155; Sayre v. Reynolds, 5 N. J. L. 
 737; Cumberland Bank v. Hall, i Halst. 
 (N. J.) 262; Simpson v. Stackhouse, 9. 
 Pa. St. 186; s. c, 49 Am. Dec. 228; 
 Stevens v. Martin, 18 Pa. St. loi; 
 Farmers' Ins. Co. v. Blair, 82 Pa. St. 33; 
 Ramsey v. McCue, 21 Gratt. (Va.) 349; 
 Monroe z/. Eastman, 31 Mich. 283; Wells 
 V. Moore, 15 Tex. 521; Muckleroy v. Beth- 
 any, 27 TTex. 551. 
 
 In Sharpe v. Orme, 61 Ala. 263, the 
 effect of interlineations apparent on the 
 face of a deed was considered. It was 
 held that if they were made before or 
 concurrently with the execution of the 
 deed and its acknowledgment, they are 
 as operative as if originally incorporated 
 therein; but, if material alterations are 
 made after delivery, a new attestation or 
 ackno.wledgment is essential to make 
 them operative; and that the time, to 
 which the inquiry as to the makiffg of 
 the interlineations should be restricted, 
 is the acknowledgment or attestation of 
 the execution. When the interlineations 
 are in the handwriting of the grantor, and 
 are for the purpose of correcting imper- 
 fect descriptions of particular parcels of 
 lands, the presumption is they were made 
 before or concurrently with the acknowl- 
 edgment of execution; and if there is any 
 evidence tending to repel this presump- 
 tion, the question of fact must be deter- 
 mined by the jury. These rules govern 
 when the effect of the alterations, if oper- 
 ative, is to enlarge the title or estate con- 
 veyed. Webb J). MuUins, 78 Ala. iii. 
 
 Oral evidence is always competent to 
 impeach the validity of a written instru- 
 ment on the ground of a fraudulent alter- 
 ation. In a civil action, a preponderance 
 of the evidence is all that is necessary to 
 establish the fraudulent alteration of the 
 writing sued on. Coit v. Churchhill, 61 
 Iowa, 296. 
 
 513 
 
Material or aot. AL TERA TION OF INSTR UMENTS. Negotiable. 
 
 mony, be presumed to have been made before the deed was finally- 
 executed, because the law will never presume fraud or forgery in 
 any one; and so it is yet held in many cases, not only as regards 
 deeds, but also in regard to negotiable instruments.^ 
 
 Rule as to Negotiable Instruments. — The rule in regard to nego- 
 tiable instruments seems to be more strict against the holders. 
 Where an alteration is apparent upon the face of the instrument 
 the holder ought to explain why he took it branded with marks of 
 suspicion, and the very fact that he received it is presumptive evi- 
 dence that it was unaltered at the time. A different principle ap- 
 plies to deeds and other written contracts, and the exception is 
 made in respect to negotiable paper because, being intended for 
 circulation, the greater strictness and watchfulness is necessary.* 
 
 1. Parsons on Contr. 722, notej// Par- 
 amore v. Lindsey, 63 Mo. 63; Gooch v. 
 Bryant, 13 Me. 386; Beaman v. Russell; 
 20 Vt. 205; s. c, 49 Am. Dec. 775; Cum- 
 berland Bank V. Hall, I Halst. (N. J.) 215; 
 Wickes V. Caulk, 5 H. &. J. (Md.) 36; 
 Clark V. Rogers, 2 Greenl. (Me.) 143; 
 Boothbey v. Stanley, 34 Me. 515; North 
 River Meadow Co. v. Shrewsbury Church, 
 22 N. J. L. 424; Stoner v. Ellis, 6 Ind. 
 152; French w. State, 12 Ind. 670; s. c, 
 74 Am. Dec. 229; Munroe v. Eastman, 
 31 Mich. 283; Sirrinej/. Briggs, 31 Mich. 
 443; Stewart w. Preston, i Fla. 10; s. c, 
 44 Am. Dec. 621; Hoey v. Jarman, 39 N. 
 J. L. 523; Herrick v. Malin, 22 Wend. 
 (N. Y.) 388; Holton V. Kemp, 81 Mo. 
 661; Morris v. Vanderen. i Dal. (U. S.) 
 67; Dangel v. Levy, i Idaho, N. S. 722. 
 
 Lord Campbell, C. J. , in Doe v. Cata- 
 more, 16 Q. B. 745, says: "A deed can- 
 not be altered after it is executed without 
 fraud' or wrong, and the presumption is 
 against fraud or wrong." 
 
 The alteration of a judgment record, if 
 probably made with the knowledge of 
 the parties or their attorneys, as by lines 
 cancelling a paragraph, will be presumed 
 to have been legitimately made before 
 the approval of the record by the judge. 
 Lutz V. Kelly, 47 Iowa, 307. 
 
 Where an initial of a middle name was 
 written and erased, the presumption is 
 that the alteration was made before the 
 deed was executed, unless the deed is de- 
 nied on oath. Banks v. Lee, 73 Ga. 25. 
 
 2. 2 Daniel on Neg. Instr. §§ 141 7, 
 1418; Simpson V. Stackhouse, g Barr. 
 (Pa.) 186; s. c, 49 Am. Dec. 228; Hum- 
 phreys V. Guillow, 13 N. H. 385; s. c, 
 38 Am. Dec. 499; Hills v. Barnes, 11 N. 
 H. 395; Elbert v. McClelland, 8 Bush 
 (Ky.), 577; Wilson v. Henderson, 9 
 Smedes & M. (Miss.) 375; s. c.,48Am. 
 Dec. 716; Page v. Danaher, 43 Wis. 221; 
 Commercial Bank v. Lura, 7 How. (Miss.) 
 
 414; Wheat V. Arnold, 36 Ga. 479; Paine 
 V. Edsell, 19 Pa. St. 178; Clark v. Eck- 
 stein, 22 Pa. St. 507; s. c, 62 Am. Dec. 
 307; Dodge w. Haskell, 69 Me. 429; Hefl- 
 ner v. Wenrich, 32 Pa. St. 423; Norfleet 
 V. Edwards, 7 Jones (N. Car.), 455; Steph 
 ens V. Graham, 7 S. & R. (Pa.) 505; s. c, 
 10 Am. Dec. 485; Wilde v. Armsby, 6 
 Cush. (Mass.) 314: Hunt v. Gray, 35 N. 
 J. L. 227; Hill V. Cooley, 46 Pa. St. 259; 
 Mouchet z*. Cason, i Brev. (S. Car.) 307; 
 Davis V. Carlisle, 6 Ala. 707; White v. 
 Hass, 32 Ala. 430; s. c, 70 Am. Dec. 
 548; Fontaine v. Gunter, 31 Ala. 258; 
 Kennedy v. Lancaster Co. Bank, 18 Pa. 
 St. 347; Daniel v. Daniel, Dudley (Ga.) 
 239; Chism V. Toomer, 27 Ark. 108; Wil- 
 lett V. Shepard, 34 Mich. 106; Simpson 
 V. Davis, iig Mass, 269. 
 
 It has, however, also been decided in 
 various cases that alterations in deeds, 
 like in negotiable instruments, must be 
 explained by the party claiming under it.' 
 Morris v. Vanderen, i Dall. (U. S.) 67; 
 U. S. v. Linn, i How. (U. S.) 104; Ack- 
 er V. Ledyard, 8 Barb. (N. Y.) 514; Jack- 
 son V. Jacoby, 9 Cow. (N. Y.)i25; Smith 
 V. McGowan, 3 Barb. (N. Y.) 404; Jack- 
 son V. Osborn, 2 Wend. (N. Y.) 555; 
 Dow V. Jewell, 18 N. H. 340; s. c, 45 
 Am. Dec. 371; Herrick v. Malin, 22 
 Wend. (N. Y.) 388; Barrington v. Bank 
 of Washington, 14 S. & R. (Pa.) 405; 
 Van Horn v. Bell, 11 Iowa, 465-; s. c, 79 
 Am. Dec. 506; Hodge ■v. Gilman. 20 ill. 
 437; HefTelfinger ■v. Shutz, 16 S. & R. 
 (Pa.) 44; Robinson v. Myers, 67 Pa. St. 
 9; Piercey v. Piercey, 5 W. Va. 199; 
 Keen's Exr. v. Monroe, 75 Va. 424; Mil- 
 likin V. Martin, 66 111. 13; Wicker v. 
 Pope, 12 Rich. (S.. Car.) 387. 
 
 A bail bond from which the name of a 
 surety has been erased is not admissible 
 until the erasure has been satisfactorily 
 explained by the State. Kiser v. State, 
 13 Tex. App. 201. 
 
 514 
 
Filling up 
 
 ALTERATION OF INSTRUMENTS. 
 
 Blanks, 
 
 Alterations not Apparent upon Inspection. — But where an altera- 
 tion is not apparent upon inspection, the burden of proof that 
 there is an alteration is upon the one who alleges it.^ 
 
 5. Filling Up Blanks. — Blanks Inadvertently but Negligently Left. 
 — It is the general rule that where one writes out a note or other 
 instrument so as to leave spaces which can easily be filled without 
 exciting suspicion, and such note or other instrument is altered 
 by filling in these spaces, he will have to suffer the consequences 
 of his negligence, and be liable to a bona-fide holder for value on 
 the altered instrument.* 
 
 When the grantee in a deed admits 
 having altered it after execution, but al- 
 leges that he did so with the grantor's 
 consent, the burden of proof rests upon 
 him. Havens v. Osborn 36 N. J. Eq. 
 426. 
 
 A sealed note was offered in evidence 
 with a blot, made by ink of a color dif- 
 ferent from that with which the note and 
 the indorsements were written, over the 
 seal of one of the defendants, an in- 
 dorser. There was no evidence to show 
 how the seal was effaced, nor by whom. 
 Held, that the burden of proof to show 
 the circumstances under which the alter- 
 ation was made rested upon the holder. 
 Organ v. Allison, g Baxt. (Tenn.)459. 
 
 In an action for damages for breach of 
 covenant of a lease, it appeared that the 
 lease had been altered in a material part, 
 which enured to the benefit of the lessee. 
 Held, that it should not have been admit- 
 ted in evidence until the lessee gave some 
 testimony explanatory of the alteration. 
 Burgwin v. Bishop, 91 Pa. St. 336. 
 
 Where a mortgage is lost and a certi- 
 fied copy offered in evidence, such copy 
 cannot be impeached on the ground of an 
 alteration of the instrument before re- 
 cording, except upon clear and convinc- 
 ing evidence. Blasey v. Delius, 86 III. 
 558. 
 
 Where an insurance policy appeared to 
 have been altered, proof that the altera- 
 tion had been made by an agent of the 
 company, who- took the insurance and 
 gave the renewal receipt, was held to be 
 sufficient evidence to permit the policy to 
 go to the jury as evidence. German F. 
 Ins. Co. V. Gerber, 4 111. App. 222. 
 
 Where once it appears that a note is 
 altered after execution, the presumption 
 is that such alteration was made by the 
 holder or by one under whom he claims; 
 and the burden of proof to remove such 
 presumption is on the holder. Eckert v. 
 Louis, 84 Ind. 99. 
 
 Alterations in an ancient deed are held, 
 in view of their nature and the appear- 
 ance of the document, to be made at the 
 
 time it was drafted, and such a deed is 
 admissible in evidence without explana- 
 tion of the alteration. Russell v. Peyton, 
 4 111. App. 473. See also Bills and 
 Notes; Deeds. 
 
 1. Meikel v. State Savings Institution, 
 36 Ind. 355; Brown v. Phelan, 2 Swan 
 (Tenn.), 629; Beaman v. Russell, 20 Vt. 
 205; ». c , 49 Am. Dec. 775; Bailey v. 
 Taylor, 11 Conn. 531; s. c, 29 Am. Dec. 
 321; McCormick v. Fitzmorris, 39 Mo. 
 34; Pullen V. Hutchinson, 12 Shepl. (Me.) 
 249; Muckleroy v. Bethany, 27Tex. 551. 
 
 An indictment for altering an account- 
 able receipt for money, so as to give it 
 the form of a promissory note, is not 
 good unless it state or show what the 
 obligation of the receipt was, so that it 
 may appear that the legal effect of it has 
 been changed by the alteration. State v. • 
 Riebe, 27 Minn. 315. 
 
 So may the presumption be rebutted 
 where the alteration is against the inter- 
 ests of the party claiming under the 
 instrument, or if it is immaterial. Greenl. 
 on Evidence, § 564; Hefelfinger v. Shultz, 
 l6 S. & R. (Pa.) 44; Cumberland Bankw. 
 Hall, I Halst. (N. J.) 215 ; Bailey v. Tay- 
 lor, II Conn. 531; s. c, 29 Am. Dec. 321; 
 Huntington v. Finch, 3 Ohio St. 445; 
 Pullen V. Shaw, 3 Dev. (N. Car.) 238. 
 
 In other cases all alterations are pre- 
 sumed to have been made after execution 
 of the instrument, if nothing is proved to 
 the contrary. Burnham v. Ayer, 35 N. 
 H. 351; Cole V. Hills, 44 N. H. 227; Dow 
 V. Jewell, 18 N. H. 340; s. c, 45 Am. 
 Dec. 371. ' 
 
 8. Isnard v. Towes, 10 La. Ann. 103; 
 Young V. Lehman, 67 Pa. St. 82; Toomer 
 V. Rutland, 57 Ala. 379; Van Duzer v. 
 Howe, 21 N. Y. 538; Zimmerman v. 
 Rote, 75 Pa. St. 188; Brown ». Reed, 79 
 Pa. St. 370; s. t., 21 Am. Rep. 75; Blake- 
 ley V. Johnson, 13 Bush (Ky.), 204; Red- 
 lich V. Doll, 54 N. Y. 234; Kitchen v. 
 Place, 41 Barb. (N. Y.) 465; Yocum v. 
 Smith, 63 111. 321; s. c, 14 Am. Rep. 120; 
 Visher v. Webster, 8 Cal. 109; Rainbolt 
 V. Eddy, 34 Iowa, 440. 
 
 515 
 
rilling up 
 
 ALTERATION OF INSTRUMENTS. 
 
 Blanks. 
 
 Not Liable. — The reverse doctrine has, however, also been held. 
 In Holmes v. Trumper the court said : " If promissory notes 
 were only given by first-class business men, who are skilful in 
 drawing them up in the best possible manner to prevent forgery, 
 it might be well to adopt the high standard of accuracy and per- 
 fection which the argument in behalf of the plaintiff would require. 
 But for the great mass of people such a standard would be alto- 
 gether too high, and would tend to encourage forgery by the 
 protection it would give to forged paper." ^ 
 
 Negotiable Instruments Delivered in Blank. — Where a party to 
 a negotiable instrument intrusts it to the custody of another 
 with" blanks not filled up, whether it be for the purpose of ac-' 
 commodating the person to whom it was intrusted, or to be used 
 for his own benefit, such negotiable instrument carries on its face 
 an implied authority to fill up the blank and perfect the instru- 
 ment ; and as between such parties and innocent third parties 
 the person to whom it was so intrusted must be deemed the 
 agent of the party who committed such instrument to his cus- 
 tody.''* 
 
 So where one left a blank space between 
 the written word "hundred" and the 
 printed word "dollars," and this space 
 was after delivery filled with the word 
 "fifty," the maker was held to be liable 
 for the full amount. Garrard p. Hadden, 
 67 Pa. St. 82. 
 
 And where material words in a prom- 
 'issory note were written in pencil and , 
 afterward erased, the maker was held 
 liable on the note as altered on account 
 of negligence. Harvey v. Smith, 55 111. 
 224; Seibel v. Vaughan, 6g 111. 257. 
 
 An indorser who signs a note so loosely 
 drawn as to easily admit of alteration, 
 and in a manner not calculated to place 
 a man of ordinary prudence on the alert, 
 will be held liable like the maker if such 
 a note is so altered. Capital Bank v. 
 Armstrong, 62 Mo. 59. 
 
 But where one signed a contract by 
 which he was to become an agent for a 
 washing machine, which contract was so 
 cunningly framed that by cutting it in 
 two parts the part containing his signa- 
 ture formed a promissory note for two 
 hundred and fifty dollars, he was held not 
 to be liable. Brown v. Reed, 79 Pa. St. 
 370; s. c, 21 Am. Rep. 75. 
 
 1. Holmes v. Trumper, 22 Mich. 427; 
 s. c, 7 Am. Rep. 661; Greenfield Savings 
 Bank 11. Stowell, 123 Mass. ig6; s. c, 
 '25 Am. Rep. 67; Worrall v. Gheen, 39 
 Pa. St. 388; Goodman v. Eastman, 4 N. 
 H. 455; Bruce v. Westcott, 3 Barb. (N. 
 Y.) 374; Wade v. Withington, I Allen 
 (Mass.), 561; Washington Savings Bank 
 V. Ecky, 51 Mo. 272; Knoxville Bank z/. 
 Clarke, 51 Iowa, 264. 
 
 Where this doctrine is held it is a mat- 
 ter for the jury whether the instrument 
 was delivered as an incomplete paper 
 with the blanks to be filled, or not. Ab- 
 bott V. Rose, 62 Me. 194; s. c, 16 Am. 
 Rep. 427. 
 
 2. Bank of Pittsburgh v. Neal, 22 
 How. (U. S.) 96; Goodman v. Simonds, 
 20 How. (U. S.) 343; Violett v. Paiton, 
 5 Cranch. (U. S) 142; Huntingdon z;. 
 Bank, 3 Ala. i86; Davidson v. Lanier, 
 71 U. S. 441; Bank v. Kimball, 10 Cush. 
 (Mass.) 373; Douglas v. Scott, 8 Leigh. 
 (Va.) 43; Weyerhauser u. Dun, 100 N. 
 Y. 150; Mitchell v. Culver, 7 Cow. (N. 
 Y.) 336; Bank of Commonwealth v. Mc- 
 Chord, 4 Dana(Ky.), 191; Hull v. Com. 
 Bank, 5 Dana (Ky.), 25'8; Michigan Ins. 
 Co. V. Leavenworth, 30 Vt. 11; Orrick 
 V. Colston, 7 Gratt. (Va.) 189; Putnam 
 V. Sullivan, 4 Mass. 45; Fullerton v. 
 Sturges, 4 Ohio St. 529; Torry v. Fisk, 
 10 S. & M. (Miss.) 590; Norwich Bank v. 
 Hyde, 13 Conn. 279; Robertson v. 
 Smith, 18 Ala. 220; Moodye v. Threkeld, 
 13 Ga. 55; Toomer v. Rutland, 57 Ala. 
 379; Spitler V. James, 32 Inri. 202; Mich- 
 igan Bank v. Eldred, g Wall. (U. S.) 
 544- 
 
 Where one indorses for the accommo- 
 dation of the maker a promissory note 
 in which the place of payment is left 
 blank, it will be presumed that he knew 
 that unless the blank were filled it could 
 not be used for the purpose intended, 
 and that he authorized the maker to fill 
 in the place of payment. Wessell v. 
 Glenn, 108 Pa. St. 104. 
 
 Where one of the makers of a note in- 
 
 516 
 
Filling up 
 
 ALTERATION OF INSTRUMENTS. 
 
 Blanks. 
 
 In any Material Part. — It is immaterial whether a negotiable 
 instrument was left blank as regards date, amount, or any other 
 material part. The implied authority to fill the blanks makes the 
 signer liable to a bona-fide holder for value, even if the one who 
 filled up the blanks had exceeded his authority. So held where 
 he was authorized to fill the blank left for the amount for a cer- 
 tain sum and he inserted a greater.^ 
 
 trusted with it by the other for delivery 
 consents to the tilling of a blank, there- 
 by fixing the place of payment, and de- 
 livers the same so changed, the note will 
 not be rendered void from such altera- 
 tion. Canon v. Grigsby, Ii6 111. 151. 
 
 A merchant left his signature with his 
 clerk, with authority to use it as an in- 
 dorsement of a note to be written on the 
 other side of the paper for another per- 
 son's signature. The other person pro- 
 cured the said signature from the clerk 
 by fraud and wrote a note on the other 
 side and put it into circulation. Held, 
 that the merchant was liable as an in- 
 dorser to a bona-fide holder for value. 
 Putnam .z/. Sullivan, 4 Mass. 45. 
 
 Although a negotiable instrument has 
 been delivered with a blank space suffi- 
 cient to insert additional words without 
 exciting suspicion, this alone will not 
 authorize per se the holder to insert the 
 words. So held where the words "or 
 order" were inserted in a space left open 
 for the purpose, but inserted without the 
 maker's knowledge or consent. Bruce 
 V. Westcott, 3 Barb. (N. Y.) 374. 
 
 And the same was held where in a 
 note a space was left between the words 
 "at" and "Covington, Ind.," which 
 space was filled in with the words ' ' the 
 Farmers* Bank " without the consent of 
 the maker. Cronkhite v. Nebeker, 81 
 Ind. 319. 
 
 It depends on the intention of the 
 maker whether the payee of a note has 
 the right to fill up a blank or not, and 
 this intention is sometimes implied. The 
 payee of a note which has been delivered 
 as an incomplete note may fill in the 
 blanks without invalidating the note. 
 Gillespie v. Kelly, 41 Ind. 158; s. c, 13 
 Am. Rep. 313; Wood worth v. Bank of 
 America, 19 Johns. (N. Y.) 391; s. c, 10 
 Am. Dec. 239; Clute v. Small, 17 Wend. 
 (N. Y.) 238; Nazro v. Fuller, 24 Wend. 
 (N. Y.) 374; Marshall v. Dresher, 68 
 Ind. 359. And see Worden v. Salter, 90 
 111. 160. 
 
 But where the maker regarded the 
 note as complete, the payee has no such 
 right. Marshall v, Dresher, 68 Ind. 359; 
 Cornell v. Nebeker, 58 Ind. 425; Goth- 
 rupt I'. Williamson, 61 Ind. 599; Worrell 
 
 I C. of L.— 34 
 
 517 
 
 V. Gheen, 39 Pa. St. 388; Goodman v. 
 Eastman, 4 N. H. 455; Bruce v. West- 
 cott, 3 Barb. (N. Y.) 374; Washington 
 Savings Bank v. Ecky, 51 Mo. 272; 
 Ivory V. Michael, 33 Mo. 398; Presbury 
 V. Michael, 33 Mo. 542; Wade v. With- 
 ington, I Allen (Mass.), 561; Fay v. 
 Smith, I Alien (Mass.), 477; s. c, 79 
 Am. Dec. 752; Draper v. Wood, 112 
 Mass. 315; s. c, 17 Am. Rep. 92; Wood 
 V. Steele, 6 Wall. (U. S.) 80; Lisle v. 
 Rogers, 18 B. Mon. (Ky.) 528; McGrath 
 V. Clark, 56 N. Y. 34; s. c, 15 Am. Rep. 
 372; Hert V. Oehler, 80 Ind. 83; McCoy 
 V. Lockwood, 71 Ind. 319. 
 
 1. Diercks v. Roberts, 13 S. Car. 338; 
 Van Duzen v. Howe, 21 N. Y. 531 ; 
 Griggs V. Howe, 21 Barb. (N. Y.) 100; 
 Smith V. Lockridge, 8 Bush (Ky.), 423; 
 Young V. Ward, 31 111. 223; Clower v. 
 Wynn, 59 Ga. 246; Goodman v. Simonds, 
 20 How. (U. S.) 343; Mech. & Farmers' 
 Bank v. Schuyler, 7 Cow. (N. Y.) 337; 
 Patterson v. Bovard, 6 Leg. Gaz. 54 
 (1874); FuUerton v. Sturges, 4 Ohio St. 
 529; Bank v. Curry, 2 Dana (Ky.), 143; 
 Shultz V. Astley, 2 Bing. N. Cas. 544. 
 
 Even where the amount was indicated 
 by the marginal figures and he altered the 
 figures to correspond with the larger 
 amount inserted in the blank. Schryver 
 V. Hawkes, 22 Ohio St. 308. 
 
 In the same manner the date may be 
 filled in. Page v. Morrell, 3 Abb, (N. Y.) 
 App. Dec. 433; Redlich v. Doll, 54 N. 
 Y. 234; Frank v. Lilienfield, 33 Gratt. 
 (Va.) 377; Overton v. Mathews, 35 Ark. 
 154; Snyder v. Van Doren, 46 Wis. 602. 
 
 Or the place of payment. Redlich v. 
 Doll, 54 N. Y. 234; Marshall v. Dresch- 
 er, 68 Ind. 359; Spitler v. James, 32 Ind. 
 202. 
 
 Or the rate of interest. Rainbolt v. 
 Eddy, 34 Iowa, 440; s. c, II Am. Rep. 
 152; Visher v. Webster, 8 Cal. 109. 
 
 Where a blank was left for the name 
 of the promisor, other parties may sign 
 the paper, and words may be inserted 
 making the instrument joint or several, 
 and the original signer will be liable 
 on it. Snyder v. Van Doren, 46 Wis. 
 602. 
 
 The holder of a negotiable instrument 
 with a blank for the name of the payee 
 
I'iUin^ up 
 
 ALTERATION OF INSTRUMENTS. 
 
 Blanks, 
 
 A Different Character. — Filling up the blanks in such a manner 
 as to give the instrument a character entirely different from the 
 intention of the signer, and against his express stipulation, will 
 not invalidate the instrument in the hands of a bona-fide holder 
 without notice, if nothing on the face of the paper indicates such 
 changes.^ 
 
 Paper in Hands of Original Payee. — Although a negotiable in- 
 strument filled up in excess of authority will be good in the 
 hands of a bona-fide holder for value and without notice, the party 
 who exceeded his authority in filling up the blank cannot recover 
 upon it. It will be void as to him, even to the extent of his 
 authority.** 
 
 has an implied authority to fill it up with 
 his own name. But he must fill it up 
 ■before he can sue upon the instru- 
 ment. Brummel v. Enders, i8 Gratt. 
 (Va.) 895; Frank v. Lilienfield, 33 Gratt. 
 (Va.) 377; Gothrapt v. Williamson, 6i 
 Ind. 599; Rich v. Starpack, 51 Ind. 87; 
 Briscoe v. Reynolds, 51 Iowa, 673; 
 Greenhow v. Boyle, 7 Blackf. (Ind.) 56; 
 Seay v. Bank of Tennessee, 3 Sneed. 
 (Tenn.) 568; Dunham v. Clogg, 30 Md. 
 184; Nelson v. Cowing, 6 Hill (N. Y.), 
 336; Pindar v. Barlow, 31 Vt. '529; Har- 
 dy V. Morton, 66 Barb. (N. Y.) 527; 
 Dinsmore v. Duncan, 57 N. Y. 573; Sit- 
 tig V. Birkestack, 38 Md. 158; Van Etta 
 ■V. Evensqn, 28 Wis. 33; s. c, 9 Am. 
 Rep. 486; Armstrong v. Harshman, 6i 
 Ind. 52; Ives v. Farmers' Bank, 2 Allen 
 (Mass.), 236. 
 
 And where a note is delivered with a 
 blank space for the name of the payee, 
 and afterward indorsed in blank, the 
 holder may insert the name of the indors- 
 er as payee and complete the indorse- 
 ment by making it payable to himself. 
 Elliott V. Chesnut, 30 Md. 562. 
 
 The holder of a paper indorsed in 
 blank may write over the indorser'sname 
 directions to whom it shall be paid and 
 anything consistent with the indorser's 
 liability; but he may not write " demand 
 and notice waived," for this would en- 
 large his liability. Andrews v, Simms, 
 33 Ark. 771. 
 
 But if such indorsement is intended for 
 a guarantee, words importing a contract 
 of guarantee may be written over it. 
 Scoti V. Calkin, 139 Mass. 529. 
 
 1. Orrick v. Colston, 7 Gratt. (Va.)l89; 
 Spitler V. James, 32 Ind. 202; Gillespie 
 V. Kelly, 41 Ind. 158; s. c, 13 Am. Rep. 
 313: Mahaiwe Bank v. Douglass, 31 
 Corn. 170. 
 
 Where a paper signed in blank was 
 given as a mere memorandum, but filled 
 in as a negotiable note and discounted. 
 
 the holder was held liable. Ives v. Far- 
 mers' Bank, 2 Allen (Mass.), 236; Brum- 
 mel w. Enders, 18 Gratt. (Va.) 897. 
 
 But where A wrote his name upon a 
 piece of blank paper at the request of B, 
 who afterward without the knowledge or 
 consent of A wrote a promissory note 
 over the signature, and transferred the 
 same for value to an innocent holder, the 
 note was held to be a forgery and A not 
 liable. Caulkins v. Whisler, 29 Iowa, 
 495- 
 
 8. Van Duzer v. Howe, 21 N. Y. 531; 
 Putnam v. Sullivan, 4 Mass. 45; David- 
 son V. Lanier, 4 Wall. (U. S.) 441; 
 Toomer v. Rutland, 57 Ala. 379. 
 
 So where a paper signed in blant 
 was intended to be a bill of exchange, and 
 was filled in so as to make it a negotiable 
 note, the maker was held not to be re- 
 sponsible before negotiation. Luellen v. 
 Hare, 32 Ind. 211. 
 
 And in case the blanks have been filled 
 in in excess of authority, the signer will 
 be liable to a bona-fide holder" for value 
 only when the holder has no notice of 
 such excess. Emmons v. Meeker, 55 
 Ind. 321; Snyder v. Van Doren, 46 Wis. 
 602; Wagner v. Diedrich, 50 Mo. 484; 
 Clower V. Wynn, 59 Ga. 246; Davidson 
 V. Lanier, 4 Wall. (U. S.) 441; Johnson 
 V. Blasdale, i S. & M. (Miss.) 17; s. c, 
 40 Am. Dec. 85; Hemphill v. Bank of 
 Alabama, 6 S. & M. (Miss.) 44; Green 
 V. Kennedy, 6 Mo. App. 577; Holland z/. 
 Hatch, 15 Ohio St. 464; Hill v. Sweetser, 
 5 N. H. 168; Bank v. Phillips, 17 Mo. 
 29. 
 
 It has been held, however, that, 
 where a holder for value has notice of 
 the fact that blanks have been filled in 
 in excess of the authority of the agent, 
 the instrument will not be void to him in 
 toto, but only to the extent of the excess. 
 Johnson v. Blasdale, i S. & M. (Miss.) 
 17; s. c, 40 Am. Dec. 85; Goss v. White- 
 head, 33 Miss. 213. 
 
 518 
 
Filling up 
 
 ALTERATION OF INSTRUMENTS. 
 
 Blanks. 
 
 Additional Stipulations not Allowed. — The implied authority to 
 fill in the blanks does not include , the right to alter any of 
 the material parts of the instrument, as expressed in the writ- 
 ten or printed parts, by erasure, nor to fill in the blanks with 
 terms not in accordance with the conditions as expressed in such 
 printed or written parts. In such a case even a bona-fide holder 
 could not recover. '^ 
 
 Filling Blanks in Deeds. — A deed executed and delivered with a 
 blank space for the name of the grantee conveys nothing, and the 
 title will not pass where one who is a bona fide purchaser of the 
 estate described in the deed fills in the blank with his own name 
 without any authority of the grantor.* 
 
 1. Angle V. N. W. Mut. Life Ins. Co., 
 •92 U. S. 331; McCoy V. Lockwood, 71 
 Ind. 319; Goodman v. Simonds, 20 How. 
 {U. S.) 343. 
 
 Neither can conditions be inserted not 
 expressed in the written or printed part 
 as delivered by the signer. Coburn v. 
 Webb, 56 Ind. 96; Ivory v. Michael, 33 
 Mo. 400; McGrath v. Clark, 56 N. Y. 34. 
 
 An accommodation indorser signed a 
 note in blank, to be used as security, but 
 no blank was left for interest. Held, 
 that the insertion of the words "the note 
 from and after its maturity shall draw 10 
 per cent interest," was unauthorized, and 
 a material alteration. Wyerhauser v. 
 Dun, 100 N. Y. 150. But compare Mer- 
 riam v.. Rockwood, 47 N, H. 81; Dear- 
 dorif V. Foresman, 24 Ind. 481. 
 
 Where an agent was intrusted with the 
 filling up and negotiation of a blank bill 
 of exchange, and he inserted the words 
 "without relief from valuation or ap- 
 praisement laws," the bill was held to be 
 -void. The clause is not a completion, 
 but an alteration. Holland v. Hatch, II 
 Ind. 497; s. c, 71 Am. Dec. 363. But 
 compare Holland ». Hatch, 15 Ohio St. 
 464. 
 
 Where one signed his name in blank, 
 intending it to serve as an indorsement 
 for a note, and the note was filled up over 
 his name, and a seal attached to it, it 
 was held that attaching the seal avoided 
 the instrument. Smith v. Carder, 33 
 Ark. 709. See also Bills and Notes. 
 
 2. Arguello v. Hours, 8 Pac. Rep. (Cal.) 
 49; Visen v. Rice, 33 Tex. 139. 
 
 A deed executed with a blank for the 
 name of the grantee conveys nothing 
 until the blank is filled up by one who 
 has authority to insert the name. Allen 
 '■B. Withrow, no U. S. 119. ^ 
 
 The authority to fill the blank must be 
 given by the grantor, but may be given 
 by parol or be implied. Ex-p. Kirwin, 
 8 Cow. (N. Y.) 118; Vliet v. Camp, 13 
 
 Wis. 189; Van Etta v. Evenson, 28 
 Wis. 33; s. c, 9 Am. Rep. 486; Rags- 
 dale V. Robinson, 48 Tex. 379; Clark v. 
 Allen, 34 Iowa, igo; Pence v. Arbucle, 
 22 Minn. 417; Field v. Stagg, 52 Mo. 
 534; Vose V. Dolan, 108 Mass. 155; 
 State V. Young, 23 Minn. 551. 
 
 In other cases it is held that the au- 
 thority to fill in material blanks in a 
 sealed instrument must be given under 
 seal. Ingram v. Little, 14 Ga. 173; s. c, 
 58 Am. Dec. 549; Preston v. Hull, 33 
 Gratt. (Va.) 600; s. c, 14 Am. Rep. 153; 
 Cross V. State Bank, 5 Ark. 525; Upton 
 V. Archer, 41 Cal. 85. See alsq Agents 
 (Appointment of). 
 
 But his authority must be strictly fol- 
 lowed. So may an agent to whom a 
 grantor delivered a deed, blank as to the 
 name, upon the grantor's authority fill in 
 the name of the grantee with whom the 
 g.rantor had contracted; but he may not, 
 even upon the request of the grantee, 
 insert another name. Schintz v. Mc- 
 Manamy, 33 Wis. 299. 
 
 Where A executed a note and a mort- 
 gage, leaving a blank in each for the name 
 of the payee and mortgagee, and deliv- 
 ered them to B as his agent to enable 
 him to raise money thereon; and where 
 B procured C to advance the money and 
 inserted his name in the blanks, it was 
 held that both instruments were valid, 
 without a new execution and delivery. 
 Van Etta w. Evenson, 28 Wis. 33; s. c. , 
 9 Am. Rep. 486. 
 
 But where a wife executed a mortgage 
 with a blank for the name of the mort- 
 gagee, and failing to secure money on it 
 inserted his father's name without her 
 knowledge or consent, it was held that 
 the mortgage had no effect. Trundy v. 
 Erkenbrack, cited by Barnard, P. J., in 
 Chauncey v. Arnold, 24 N. Y. 330. 
 
 The same principle holds good to 
 other blanks. A mortgage on a crop to 
 secure supplies was executed with a blank 
 
 519 
 
Beoovery.- 
 
 ALTERATION OF INSTRUMENTS. 
 
 Recovery. 
 
 Blanks in Bonds. — A bond left with a blank for the name of the 
 obligee is a nullity. It imposes no liability upon the obligor, and 
 confers no rights on him who receives it ; and an agent authorized 
 by parol cannot insert the name.* 
 
 6. Recovery on Original Consideration. — Where a written instru- 
 ment has been altered without any fraudulent intent the payee 
 may recover on the original consideration.* 
 
 Fraudulent Intent. — The holder of an altered written instru- 
 ment can have no recourse to the original consideration for which 
 it was given if the alteration has been made by him or with his 
 consent for any fraudulent purpose.^ 
 
 Rights of Third Parties. — Where an alteration was made with- 
 out any fraudulent intent of the party claiming under it, but by 
 transfer or otherwise a return to the original consideration would 
 
 for the date before the crop was planted, 
 and with an agreement to date and ac- 
 knowledge it after the crop should be 
 planted. The supplies were furnished 
 by the mortgagee. Held, that the inser- 
 tion of the subsequent date by the mort- 
 gagee was not unauthorized, and the 
 mortgage valid in equity as of its actual 
 (late; notwithstanding the subsequent re- 
 fusal of the mortgagor to date and ac- 
 knowledge it as agreed. Lemay v. John- 
 son, 35 Ark. 225. 
 
 Many authorities hold, however, that a 
 deed executed and delivered with a ma- 
 terial part left blank cannot be completed 
 so as 10 convey an estate. Chase v. 
 Palmer, 29 111. 306; Whitaker v. IWiller, 
 S3 111. 381; Cross V. State Bank, 5 Ark. 
 525; Viser v. Rice, 33 Tex. 139; Heath 
 V. Nulter, 50 Me. 378; Wunderling v. 
 Cadozan, 50 Cal. 613; Burns v. Lynde, 
 6 Allen (Mass.), 305; Ingram v. Little, 
 14 Ga. 173; s. c, 58 Am. Dec. 549; 
 Lindsley v. tamb, 34 Mich. 509. See 
 also Deeds. 
 
 i. Preston v. Hull, 23 Gratt. (Va.)6oo. 
 
 A bond signed by the 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 payments have been made there- 
 on. Barden v. Southerland, 70 N. C. 
 528. 
 
 A blank paper was signed and sealed 
 by a principal and three others as sure- 
 ties, and left -with the principal to be 
 filled up and signed by him. He did fill 
 it up, and delivered it to the obligee 
 named therein. Held, not to bind the 
 sureties, but that it was the bond of the 
 principal who filled up the blanks and 
 delivered it. Penn v. Hamlett, 27 Gratt. 
 (Va.) 337. 
 
 The treasurer of a board of education 
 wrote a bond, which was signed by his 
 
 sureties, after which he filled Up the 
 amount of the penalty, and delivered it 
 to the board, who had no notice that 
 the amount had been filled in after the 
 bond was signed. The treasurer then 
 received large amounts of money on the 
 strength of the bond, and defaulted. 
 After the defalcation the sureties took 
 some mortgages and other securities. 
 Held, that this acted as a ratification of 
 the action of the treasurer in filling up' 
 the amount after they had signed the 
 bond, and they were liable on it. Bart- 
 lett V. Board of Education, 59 111. 364. 
 See also Bonds. 
 
 2. Gorden v. Robertson, 48 Wis. 493; 
 Wallace v. Wallace, 8 111. App. 69; Mat- 
 teson V. Ellsworth, 33 Wis. 499; s. c, 14 
 Am. Rep. 766 ; Merrick v. Boury, 4 
 Ohio St. 60; Krause v. Myer, 32 Iowa, 
 566; Hunt V. Gray, 35 N. J. L. 227; s. c. 
 10 Am. Rep. 232; Morrison ij. Huggins, 
 53 Iowa, 76; Clute v. Small, 17 Wend. 
 (N. Y.) 238; State Savings Bank v. Shaf- 
 fer, 9 Neb, i; s. c, 31 Am. Rep. 395; 
 Booth V. Powers, 56 N; Y. 22; Vogle v. 
 Ripper, 34 111. 100; Sullivan v. Rudisill, 
 63 Iowa, 158; Clough V. Seay, 49 Iowa, 
 iii; Lewis v. Schenck, 3 C. E. Green (N. 
 J.). 459; Eckert v. Pickel, 59 Iowa, 545. 
 
 3. Wallace v. Wallace, 8 111. App. 69; 
 Newell V. Mayberry, 3 Leigh. (Va.) 250; 
 s. c, 23 Am. Dec. 261 ; Kennedy v. 
 Crandell, 3 Lans. (N. Y.) i; Meyer v. 
 Huneke, 55 N. Y. 412; Smith v. Mace, 
 44 N. H. 553; Wheelock v. Freeman. 13 
 Pick. (Mass.) 165; s. c, 23 Am. Dec. 
 674; Booth V. Powers, 56 N. Y. 22; 
 Citizens' Bank v. Richmond, I2i Mass. 
 no. 
 
 A fraudulent intent will, however, not 
 be presumed. Matteson v. Ellsworth, 
 33 Wis. 499; s. c, 14 Am. Rep. 766; 
 Krause v. Meyer, 32 Iowa, 566; Morri- 
 son V. Huggins, 53 Iowa, 76. 
 
 530 
 
Batiflcation of AL TERA TION OF INSTR UMENTS. Alterations. 
 
 prejudice the rights of third parties, a recovery upon the original 
 consideration will not be allowed. ^ 
 
 Merger. — In case of merger of the original consideration in the 
 written instrument, as where the instrument is under seal, return 
 to the original consideration cannot be had after the instrument is 
 once executed and delivered.* 
 
 7, Ratification of Alterations.^ — A ratification of the alteration by 
 the parties to the altered instrument will restore it as altered, 
 without a new consideration.^ 
 
 1. Merrick v. Boury, 4 Ohio St. 60; 
 Chadwiclc v. Eastman, 53 Me. 16. 
 
 2. Wliitmer v. Frye, 10 Mo. 348; War- 
 ing V. Smyth, 2 Barb. Ch. (N. Y.) 119; 
 s. c, 47 Am. Dec. 299; Mills v. Starr, 2 
 Bailey (S. Car.), 359. 
 
 A parol promise by a purchaser "of land 
 to pay for the same is merged in the 
 note given for the consideration at the 
 time of the agreement; and where the 
 note becomes void by reason of altera- 
 tion the holder cannot recover upon the 
 original consideration. Wheelock v. 
 Freeman, 13 Pick. (Mass.) 165; s. c, 23 
 Am. Dec. 674. 
 
 3. Pelton V. Prescott, 13 Iowa, 567; 
 Kings'. Hunt, 13 Mo. 97; Grimstead w. 
 Briggs, 4 Iowa, 559; Humphreys w. 
 Guillon, 13 N. H. 385; s. c, 38 Am, Dec. 
 499; Penny v. Corwaithe, 18 Johns. (N. 
 Y.)499; National State Bank v. Rising, 
 
 4 Hun, 793; Morrison v. Smith, 13 Mo. 
 234;'s. c, 53 Am. Dec. 145; Goodspeedz'. 
 Cutler, 75 111. 534; Stewart v. First Nat. 
 Bank, 40 Mich. 348; Prouty v. Wilson, 
 123 Mass. 297. 
 
 Such ratification may be by parol. 
 Thus where three notes drawn to the 
 order of the same seven payees were, in- 
 dorsed by all seven, including B., G., and 
 
 5 ; but after one note had been negotiated 
 B. and G. were, with the consent of all 
 the others except S., allowed to have their 
 names erased from the three notes, and 
 S. being informed thereof recognized his 
 liability. Held, that S. thereby ratified 
 the alteration of the first note and author- 
 ized the negotiation of the two other 
 notes with the same change. Stewart v. 
 First Nat. Bank, 40 Mich. 348; Hill v. 
 Scales. 7 Yerg. (Tenn.) 410. 
 
 It has been held, however, that a parol 
 ratification of an alteration in a deed or 
 other sealed instrument does not restore 
 it. Cleaton v. Chambliss, 6 Rand. (Va.) 
 86; Sans v. People, 8 111. 327. 
 
 Ratification of an alteration may also 
 be implied, and whether the alteration 
 has been ratified or not is a question for 
 t^e jury. Benedict v. Miner, 58 111. 19, 
 Wcodworth v. Bank of America, 19 
 
 Johns. (N. Y.) 391 ; s. c, 10 Am. Dec. 
 239; Clute V. Small, 17 Wend. (N. Y.) 
 238; Bowers v. Jewell, 2 N. H. 543 ; 
 Stahl V. Berger, 10 S. & R. (Pa.) 170; s. 
 c, 13 Am. Dec. 666; Overton v. Ma- 
 thews, 35 Ark. 147; Prouty v. Wilson, 
 123 Mass. 297 ; Stewart v. First Nat. 
 Bank, 40 Mich. 348. 
 
 A partial payment made after the al- 
 teration of a promissory note, and with 
 full knowledge of the fact, will imply a 
 ratification of the alteration. Evans v. 
 Foreman, 60 Mo. 449. 
 
 Where the sureties of an administra- 
 tor's bond were informed of an altera- 
 tion in it shortly after it was made, and 
 permitted the administration to proceed 
 thereunder for a number of years with- 
 out objection, the jury were authorized 
 to infer a ratification of the alteration. 
 Jackson v. Johnson, 67 Ga. 167. 
 
 Requesting and obtaining an extension 
 of time for tlie payment of a promissory 
 note which has been materially altered by 
 substituting the name of a new payee in 
 place of the original name, after knowl- 
 edge of such alteration, is such a ratifi- 
 cation of the alteration as will bind the 
 maker requesting the extension. Bell v. 
 Mahin, 29 N. West. Rep. (Iowa) 331. 
 
 Two parties desirous of purchasing 
 certain personal property, filled up two 
 notes for the price, bearing six per cent 
 interest, and prepared a bill of sale of 
 the property, with a warranty showing 
 the giving of the notes at six per cent in- 
 terest. One of the makers took these in- 
 struments to the seller, who refused to 
 take notes bearing that rate of interest, 
 and it was then agreed by such maker to 
 change the rate of interest to seven per 
 cent in both the notes and the bill of 
 sale, which was done and the purchase 
 concluded. The other maker of the 
 notes afterward saw and read the bill of 
 sale, which showed the notes bore inter- 
 est at seven per cent, and he failed to 
 rescind the contract and return the 
 property. Held, that if the maker last 
 mentioned knew of the alteration of the 
 notes, and did not in a reasonable time 
 
 521 
 
Alterations AL TERA TION OF INSTR UMENTS. 
 
 in Wills. 
 
 Implied Ratification. — An implied ratification must, however, 
 be clearly shpwn. So where the name of a payee was erased and 
 another name substituted, and the maker afterward saw the note 
 and made no objection, but there was evidence to show that his 
 attention was only called to the signature, this was held not to be 
 a ratification.^ 
 
 8. Alterations in Wills. — -In the absence of proof to the contrary, 
 unattested and unexplained alterations, apparent upon the face 
 of a will, are presumed to have been made after execution. Such 
 alterations will not invalidate the will if the original intention of 
 the testator can be ascertained ; and it is for the jury to establish 
 the will as it read when executed.** 
 
 rescind the contract for that reason, by 
 offering to return the property, he must 
 be treated as having ratified the altera- 
 tion, and was bound by it. Canon v. 
 Grigsby, ll6 111. 151. 
 
 1. German Bank v, Dunn, 62 Mo. 79. 
 Even where the maker after noticing 
 
 the alteration offered to give another 
 note at sixty days in place of it, the 
 court did not regard this as a ratification 
 of the alteration. Kilkelly v. Martin, 34 
 Wis. 525. 
 
 And in case of a surety, discharged by 
 a material alteration in a note, a subse- 
 quent promise by him to pay will not 
 bind him unless made upon some new 
 consideration. Warren z/. Fant, 79 Ky. i. 
 
 One of the makers of a joint note has 
 no implied authority to ratify an altera- 
 tion for the others, not even where he as 
 agent for the others has been entrusted 
 with the note to deliver it to the payee. 
 Schnewind v. Hackett, 54 Ind. 248. 
 
 2. Haynes v. Haynes, 33 Ohio St. 598; 
 Dyer v. Erving, 2 Demarest(N. Y.), 160. 
 
 The amount of a pecuniary legacy as 
 originally written was $5000, but had 
 been changed by erasures and by marks 
 in ink of another color to $2000. Held, 
 that the will as originally written should 
 be received for probate. Wetmore v. 
 Carryl, 5 Redf. (N. Y.) 544- 
 
 Where the date of a will admitted to 
 probate appears to have been changed 
 from 1875 to 1873, and the record else- 
 where shows that the testator died prior 
 to 1875, the change or correction will be 
 presumed to have been made at the time 
 the instrument was executed. Martin v. 
 King, 72 Ala. 354. 
 
 Where, however, the alteration is at- 
 tested in the statutory way or otherwise 
 sufficiently explained, the will may be ad- 
 mitted to probate as altered. So where 
 a testator, after executing a will, made 
 erasures and corrections with a lead-pen- 
 cil in his brother's presence, saying, " It 
 
 will be a good will, anyhow, even if I do 
 not prepare another one before I die," 
 the corrected will was held to be proper- 
 ly admitted to probate. Ke Fuquett's 
 Will, II Phila. (Pa.) 541. 
 
 A will was written on the first and third 
 pages of a slieet of paper, and signed at 
 the end of the third page. In a devise to 
 A, written on the third page, numbered 
 " 4th," certain words describing the prop- 
 erty devised were erased and the words 
 " see next page" were interlined. On the 
 fourth page of the same sheet of paper 
 was written an unsigned clause numbered 
 "4th," making a bequest to A, and also 
 additional bequests to other beneficiaries. 
 The scrivener who drew the will testified 
 that the erasure and interlineation were 
 made by him by the testator's direction, 
 and he identified the writing on the fourth 
 page as the subject of the said reference 
 in the will, and as having been written 
 by him at the testator's direction prior to 
 the signing by the testator. Held, that 
 the writing on the fourth page was to be 
 read into the will as constituting the 
 fourth clause thereof, and that the entire 
 instrument with said clause incorporated 
 therein should be admitted to probate as 
 the testator's will. Baker's Appeal, 107 
 Pa. St. 381. 
 
 Alterations, however, made by a testa- 
 tor which alter the will so as to dispose 
 of more property or to increase legacies; 
 in general, any alteration that amounts 
 to a new devise, requires a re-execution 
 and attestation. A will so altered by the 
 testator, if not re-executed and attested, 
 will be effective only as if unaltered. 
 This does not apply, however, to erasures 
 or interlineations which act as a revoca- 
 tion of the will as a whole or in par.t. 
 Eschbach v. Collins, 61 Md. 478; s. c, 
 48 Am. Rep. 123; McPherson v. Clark, 3 
 Bradf. (N. Y.) 92; Borden v. Borden, 2 
 R. I. 94; Overall v. Overall, Litt. Sel. 
 Cas. (Ky.) 504; Tudor v. Tudor, 17 B. 
 
 522 
 
ALTERING— AL WA YS—AMALGAMA TE. 
 
 ALTERING.^The act of changing, i 
 
 ALWAYS. — The usual meaning of this word, viz., at all times, 
 continually, continuously, has been modified and limited, where 
 usfd in a statute, to the period of time to which the statute espe- 
 cially referred.'-* 
 
 AMALGAMATE— AMALGAMATION. (See also CONSOLIDATION.) 
 — This word is used in England, as consolidation in America, of the 
 merger of one incorporated company or society into another. It 
 is generally effected under the Companies Act, 1864, the property 
 and business of one company being transferred to the other, and 
 the stockholders of the old company becoming stockholders in 
 the new.^ 
 
 Mon. (Ky.) 383; In re Kirkpatrick, 22 N. 
 J. Eq. 463; Wright v. Wright, 5 Ind. 389. 
 
 A testator having made his will, devis- 
 ing the lands then in his possession to 
 his four sons, subsequently acquired other 
 lands. By erasures and interlineations 
 in his will he devised all the lands of 
 which he should die seized, and had these 
 alterations signed by two witnesses. As 
 the law required an attestation of three 
 witnesses, it was held that the alterations 
 could not operate, but that the will should 
 be effective as originally executed. Jack- 
 son V. HoUoway, 7 Johns. (N. Y.) 395. 
 
 So' where one had devised his estate to 
 one person and afterward attempted to 
 transfer it by an interlineation which was 
 not properly attested, the will was held 
 to be valid only as originally made. Wolf 
 ■b. Bollinger, 62 111. 368. 
 
 But where a testator altered a will by 
 drawing ink lines througli two entire 
 clauses, without making an attempt to 
 dispose otherwise of the property origi- 
 nally disposed of by those clauses, the al- 
 tered will was sustained. Bigelow v. Gil- 
 lott, 123 Mass. 102; s. c, 25 Am. Rep. 
 32. See also Wills. 
 
 Authorities for Alteration of Instru- 
 ments. — Daniel on Neg. Instr. ; Greenl. 
 on Evidence; Wharton's Law of Evi- 
 dence. 
 
 1. Slaughter!'. The State, 7Tex.Ap.124. 
 
 Altering Bills. — By cutting bank-bills 
 into slips with intent to paste the slips 
 together and increase the number of the 
 original bills, a person cannot be indicted 
 under a statute to prevent the altering 
 of bills. Commonwealth v. Hayward, 10 
 Mass. 35. 
 
 Building, Altering, Repairing, or Orna- 
 menting. — These words do not include the 
 furnishing materials and labor necessary 
 to place a lightning-rod on a house. Day- 
 huff w. Dayhuff. 81 111. 498. 
 
 Altering Highways. — A provision for- 
 bidding the altering of highways has to 
 
 do with altering their course; it does not 
 prevent a change of grade. Harrison v. 
 The Board of Supervisors, etc., 51 Wis. 
 646. 
 
 Altering means altering where the pub- 
 lic has placed them, not to take them up 
 and put them in a new place. Warren 
 R. Co. V. State, 5 Dutchess (N. J.), 356. 
 
 2. Thus where section 1166 (5) of the 
 Tennessee code provided that " everv 
 railroad company shall keep the engi- 
 neer, fireman, or some other person 
 upon the locomotive always upon the 
 lookout ahead, etc.," it was held that the 
 use of this word "always" was not to be 
 construed as requiring for the exonera- 
 tion of the company, in a suit against 
 them for killing a horse, that somebody 
 on the locomotive must throughout the 
 whole trip have been literally always 
 upon the lookout. It is sufficient if the 
 precaution was being observed when the 
 accident happened. Louisville & Nash- 
 ville R. Co. V. Stone, 7 Heisk.(Tenn.)468. 
 
 3, In such a case, however, it was held 
 that a clause in the articles of association 
 of a company registered under the Com- 
 panies Act, 1862, authorizing the direc- 
 tors to "amalgamate, etc.," did not em- 
 power them to compel a dissentient 
 shareholder to become a member in a 
 new company. Wood, V. C, saying: " I 
 think it is impossible to give to the word 
 ' amalgamate' the force which is con- 
 tended for. It is difficult to say what the 
 word ' amalgamate' means. I confess at 
 this moment I have not the least concep- 
 tion of what the full legal effect of the 
 word is. We do not find it in any law 
 dictionary or expounded by any compe- 
 tent authority. But I am quite sure of 
 this, that the word ' amalgamate' cannot 
 mean that the execution of a deed shall 
 make a man a partner in a firm in which 
 he was not a partner before, under con- 
 ditions of which he was in no way cogni- 
 zant, and which are not the same as 
 
 523 
 
Definition, 
 
 AMBASSADOR. 
 
 Bights and Frivilegeg, 
 
 AMBASSADOR. (See also Consul.) — The commissioner who rep- 
 resents one country in the seat of government of another ; and as 
 such representative he is exempt, together with his family, secre- 
 taries, and servants, from the local jurisdiction, not only in civil but 
 also in criminal cases. In England his exemption depends princi- 
 pally ,on the Stat. 7 Anne, c. 12. Where such an ambassador in- 
 volves himself in commercial relations much inconvenience arises, 
 the better opinion being that even in that case he is exempt from 
 the local jurisdiction. But an ambassador may waive his privilege 
 in all these respects and submit himself to the jurisdiction. Such 
 an ambassador is, however, amenable in his own country to the 
 national jurisdiction thereof; and in fact it is because he carries 
 with him into the foreign country the territory of his own coun- 
 try that he is exempted from the local jurisdiction.'- 
 
 Whether the exemption operates to deprive a creditor of his 
 real (as opposed to a mere personal) right is a disputed question.* 
 
 those contained in the former deed." of the District of Columbia, who shall 
 
 upon receipt thereof post the same in 
 some public place in his office. See i 
 Op. Atty.-Genl. 26-71, 5 Op. Atty.-Genl. 
 6g; Ex parte Cabrera, i Wash. (U. S.) 232; 
 U. S. V. Lafontaine, 4 Cranch. C, C. 173. 
 
 If a public minister assaults, he loses 
 his privilege if he is assaulted in turn by 
 the party aggrieved. U. S. v. Ortega, 4 
 Wash. (U. S.) 531. See U. S. v. Liddle, 
 2 Wash. (U. S.) 205; U. S. V. Benner, 
 I Bald.. (U. S.) 234. 
 
 An ambassador's house, equipage, etc., 
 are entitled to the same protection as his 
 person. U. S. v. Hand, 2 Wash. (U. S.) 
 435- 
 
 If an ambassador voluntarily submits 
 to arrest, he cannot waive his privilege, 
 and his arrest will still be illegal. U. S. 
 V. Benner, i Bald. (U. S.) 234. 
 
 On an application by a person indicted 
 for an offence committed while presi- 
 dent of a national bank for certiorari to 
 bring up the indictment on the ground 
 that when the alleged offence was com- 
 mitted he was a political agent of a for- 
 eign government, the application was 
 refused when it appeared that his own 
 government had requested his resigna- 
 tion prior to the finding of the indict- 
 ment, although it was not actually given 
 till subsequent thereto, and that the 
 political department of the Government 
 of the United States had refused him the 
 privilege of free entry of goods usually 
 accorded to a diplomatic representative. 
 Ex-p. Hitz, III U. S. 766. 
 
 An action cannot be brought, in a State 
 court, against a firm, on a firm debt, 
 where a foreign minister is a partner. 
 In re Tracy, 46 N. Y. Super. Ct. 48. 
 
 2. See case of the U. S. Ambassador to 
 Prussia. Wheaton Internat, L. 307-318. 
 
 " But I think this much may b* said, 
 that persons who execute these deeds 
 ought to know that the word 'amalga- 
 mate' is not a word by which, having 
 subscribed, to company A, they may be 
 compelled to become subscribei-s to com- 
 pany B. It is just possible that directors 
 may, under this clause, be justified in 
 transferring all the assets of a dissentient 
 shareholder to another company, but it 
 does not appear to me that these words 
 go to anything like the extent of saying 
 that the applicants in this case shall be 
 put on the list of a totally different con- 
 cern, to-being members of which concern 
 they entirely object. In re Empire As- 
 surance Corp. ex parte Bagshaw, L. R. 4 
 Eq. Cas. 341, 347, 348. 
 
 1. U. S. Rev. Stat. §§ 4062-4065 en- 
 acts that whoever assaults or in any way 
 offers violence to the person of a public 
 minister shall be imprisoned for not 
 more than three years and fined at the 
 discretion of the court; that all process 
 civil or criminal against such minister or 
 his servants shall be void, and that 
 every person by whom such process is 
 obtained or prosecuted, whether as party 
 or as attorney or solicitor, and every 
 officer executing it, shall be imprisoned 
 not more than three years and fined at 
 the discretion of the court. But the 
 penalty will not apply where the person 
 against whom the process is issued is a 
 citizen or inhabitant of the United States, 
 and the process is founded upon a debt 
 contracted before he entered the service 
 of the public minister, or unless the name 
 of the servant has, before the issuing of 
 the process, been registered in the De- 
 partment of State and transmitted by 
 t'ne Searetary of State to the marshal 
 
 534 
 
Definition. 
 
 AMBIGUITY. 
 
 Definition. 
 
 AMBIGTIITY. (See also Abbreviations. 
 
 4. Effect of Evidence. 
 
 5. Ambiguity of Intermediate Class. 
 
 6. Wills. 
 
 7. Conveyances. 
 
 8. Contracts. 
 
 1. What is an Ambiguity. 
 
 2. Patent Ambiguity. 
 
 Evidence not Admissible to Ex- 
 plain. ' 
 
 3. Latent Ambiguity. 
 
 1. Definition. — Duplicity, indistinctness, or uncertainty of mean- 
 ing of an expression used in a written instrument. ^ The effect 
 of words that have either no definite sense, or else a double 
 one.* 
 
 Ambiguity does not include inaccuracy, or such uncertainty as 
 arises from the use of peculiar words, or of common words in a 
 peculiar sense.^ 
 
 1. Bouvier's Law Diet. 
 
 2. EUmaker v. Ellmaker, 4 Watts (Pa.), 
 89. 
 
 A written instrument is not ambiguous 
 because an ignorant and uninformed per- 
 son is unable to interpret it. It is am- 
 biguous only, if found to be of uncertain 
 meaning when persons of competent 
 skill and information are unable to do so. 
 Words cannot be ambiguous because 
 they are unintelligible to a man who 
 cannot read; nor can they be ambiguous 
 merely because the court which is called 
 upon to explaim them may be ignorant of 
 a particular fact, art, or science which 
 was'familiar to the person who used the 
 words, and a knowledge of which is 
 therefore necessary to a right under- 
 standing of the words he has used. If 
 this be not a just conclusion, it must fol- 
 low that the question whether a will is 
 ambiguous might be dependent, not 
 upon the propriety of the language the 
 testator has used, but upon the degree of 
 knowledge, general or even local, which 
 a particular judge might happen to pos- 
 sess ; nay, the technical precision and 
 accuracy of a scientific man might oc- 
 casion his intestacy — a proposition too 
 absurd for an argument. Wigram on 
 Extrin. Ev. (O'Hara's Ed.) §§ 200, 201. 
 
 3. Bouvier's Law Diet. 
 
 A distinction must be taken between 
 inaccuracy and ambiguity of language. 
 Language may be inaccurate without be- 
 ing ambiguous, and it maybe ambiguous 
 although perfectly accurate. If, for in- 
 stance, a testator having one leasehold 
 house in a given place, and no other 
 house, were to devise his freehold house 
 there to A. B., the description, though 
 inaccurate, would occasion no ambiguity. 
 If, however, a testator were to devise an 
 estate to John Baker, of Dale, the son of 
 Thonlas, and there were two persons to 
 whom the entire description accurately 
 
 applied, this description, though accu- 
 rate, would be ambiguous. It is obvious, 
 therefore, that the whole of that class of 
 cases in which an inaccurate description 
 is found to be sufficient merely by the re- 
 jection of words of surplusage are cases 
 in which no ambiguity really exists. The 
 meaning is certain, notwithstanding the 
 inaccuracy of the testator's language. A 
 judge in such cases may hesitate long be- 
 fore he comes to a conclusion; but if he 
 is able to come to a conclusion at last, 
 with no other assistance than the light 
 derived from a knowledge of those cir- 
 cumstances to which the words of the 
 will expressly or tacitly refer, he does in 
 effect declare that the words have a legal 
 certainty — a declaration which of course 
 excludes the existence of any ambiguity. 
 The language may be inaccurate; but if 
 the court can determine the meaning of 
 this inaccurate language, without any 
 other guide than a knowledge of the sim- 
 ple facts, upon which, from the very 
 nature of language in general, its mean- 
 ing depends, the language, though inac- 
 curate, cannot be ambiguous. The cir- 
 cumstance that the inaccuracy is appa- 
 rent upon the face of the instrument can- 
 not, in principle, alter the case. Wigram 
 on Extrin. Ev. (O'Hara's Ed.) §§ 202-205. 
 The case of Miller v. Travers, 8 Bing. 
 244, is a leading case on this subject. 
 Tindal, the chief Justice of the Common 
 Pleas, and Lyndhurst, the chief baron of 
 the Exchequer, were called in to assist 
 Brougham, the Lord Chancellor, in the 
 case. Their joint opinion was delivered 
 by Tindal. The case was this: The tes- 
 tator, by his will duly executed, devised 
 " all his freehold and real estates whatso- 
 ever, situate in the county of Limerick 
 and in the city of Limerick," to certain 
 trustees therein named and their heirs. 
 At the time of making the will he had no 
 real estate in the county of Limerick, biii 
 
 535 
 
Definition, 
 
 AMBIGUITY. 
 
 Definition, 
 
 In ascertaining the intention of a testator as expressed in his 
 will, or of the parties to a contract, a distinction is made between 
 patent and latent ambiguities. If the court, aided by evidence of 
 all the material circumstances in the case, finds that the language 
 of the testator has failed to sufficiently identify the intended 
 beneficiary or the subject-matter of the bequest, the case is one 
 of patent ambiguity. If, on the other hand, the court, so aided, 
 finds the language of the \.&st^Xox pritna facie clear and conclusive 
 as to his intent, but that the evidence before it makes doubtful 
 the identity of the person or thing referred to, the ambiguity is 
 latent.^ 
 
 he had a small real estate in the city of 
 Limericli and considerable real estate in 
 the county of Clare. The plaintiff con- 
 cluded that he was at liberty to show by 
 his parol evidence that the real estate in 
 the city of Limerick was inadequate to 
 meet the charges of the will, and that the 
 testator intended his estates in Clare also 
 to pass under the same devise. He offefed 
 to prove by parol that the estates in the 
 eounty of Clare were devised to him in 
 the draft of the will ; that the draft 
 was sent to a conveyancer to make cer- 
 tain alterations not affecting the estates 
 in the county of Clare; and that by mis- 
 take he erased the words "county of 
 Clare," and that the testator afterwards 
 executed the will without noticing the 
 erasure. The court held that the evi- 
 dence was inadmissible. In delivering 
 judgment the chief justice said that cases 
 of latent ambiguity range themselves 
 into two separate classes : " The first 
 class is when his description of the thing 
 devised or of the devisee is clear upon 
 the face of the will, but upon the death 
 of the testator it is found that there are 
 more than one estate or subject-matter 
 of devise, or more than one person, 
 whose description follows out and fills 
 the words used in the will. The other 
 class of cases is that in which the de- 
 ■ scription contained in the will of, the 
 thing intended to be devised, or of the 
 person who is intended to take, is true in 
 part, but not true in every particular." 
 The court then proceeded as follows; 
 '■ But the case now before the court does 
 not appear to fall within either of these 
 distinctions. There are no words in the 
 will which contain an imperfect or, in- 
 deed, any description of the estates in 
 Clare. The present case is rather one in 
 which the plaintiff does not endeavor to 
 apply the description contained in the 
 will to the estates in Clare, but, in order 
 to make out such intention, is compelled 
 to introduce new words and a new de- 
 scription into the body of the will itself. 
 
 . . . This, it is manifest, is not merely 
 calling in the aid of extrinsic evidence to 
 apply the intention of the testator, as it 
 is to be collected from the will itself, to 
 the existing state of his property; it is 
 calling in extrinsic evidence to introduce 
 into the will an intention not apparent 
 upon the face of the will itself. It is not 
 simply removing a difficulty arising from 
 a defective or mistaken description: it is 
 making the will speak upon a subject on 
 which it is altogether silent, and is. in 
 effect, filling up a blank which the testa- 
 tor might have left in his will. It. 
 amounts, in short, by the admission of 
 parol evidence, to the making of a ne.v 
 devise for the testator which he is .■■up- 
 posed to have omitted." 
 
 1. Best on Ev. (Chamberlayne's Ed.) 
 232, note b. See Palmer v. Abee, 50 
 Iowa, 429; Peisch v. Dickson, i Mason 
 (U. S,), 9. 
 
 Patent ambiguities are to be dealt with 
 by the court. Latent ambiguities are for 
 the jury to determine. Smith v. Thomp- 
 son, 8 C. B. 44; Bruff V. Conybeare, 13 
 C. B. 263; Hills V. London Gas Co., 27; 
 L. J. Exch. 60; Harvey v. Vandegrift, 
 89 Pa. St. 346; Greenleaf on Ev. § 280. 
 
 If a statement by which the plaintiff 
 says he has been deceived is ambiguous, 
 the plaintiff is bound to state the mean- 
 ing which he attached to it, and cannot 
 leave the court to put a meaning upon it. 
 The prospectus of a company stated that 
 the present value of the turnover or out- 
 put of the entire works was more than a 
 million sterling per annum. The plain- 
 tiff complained that that was untrue, but 
 declined to state the meaning which he 
 attached to the words "turnover or out- 
 put," except that he understood them in 
 their ordinary meaning. Held, that the 
 expression was ambiguous, and that as 
 the plaintiff did not state in what sense 
 he uiiderstood it, he could not rely upoa 
 the misstatement as a ground of action. 
 Smith V. Chadwick, L. R. 20 Ch. 27; s. c, 
 5 Am. & Eng. Corp. Cas. 23. 
 
 526 
 
Patent Ambi^ty. 
 
 AMBIGUITY. 
 
 Patent Ambiguity. 
 
 2. Patent Ambig^uity. — This is an ambiguity which arises upon 
 the words of the will, deed, or other instrument, as looked at in 
 themselves, and before they are attempted to be applied to the 
 object or to the subject which they describe. Thus, if a blank is 
 left, or if there is an obvious uncertainty or inconsistency in the 
 instrument, this is a patent ambiguity.^ 
 
 Ambiguity upon the Factum. — By am- 
 biguity upon the factum is meant, not 
 an ambiguity upon tiie construction, as 
 whether a particular clause shall have a 
 particular effect, biit an ambiguity as to 
 the foundation itself of the instrument, 
 or a particular part of it, as whether the 
 testator meant a particular clause to be 
 part of the instrument, or whether it was 
 introduced with his knowledge; whether 
 a codicil was meant to republish a former 
 or Subsequent wijl, or whether the resid- 
 uary clause, or any other passage, was 
 accidentally omitted. Eatherly v. Eath- 
 erly, i Coldw. (Tenn.) 461; s. c, 78 Am. 
 Dec. 4gg. 
 
 1. Chambers v. Ringstaff, 6g Ala. 140; 
 Nashville L. Ins. Co. v. Mathews, 8 Lea 
 (Tenn.V 499; Palmer».Abee,5oIowa, 429. 
 
 Ambiguitas patens, says Lord Bacon, 
 cannot be holpen by averment, and the 
 reason is, because the law will not couple 
 and mingle matter of specialty, which is 
 of the higher account, with matter of 
 averment, which is of the lower account 
 in law, for that were to make all deeds 
 hollow, and subject to averment; and so, 
 in effect, to make that pass without deed 
 which the law appoints shall not pass but 
 by deed. (Bac. Max. reg. 23; Doe d. 
 Tyrrell v. Lyford, 4 M. & S. 550; Chol- 
 mondeley v. Clinton, 2 Mer. 343; Judgm. 
 Doe d. Gord v. Needs, 2 M. & W. 139). 
 And this rule, as above stated and ex- 
 plained, applies not only to deeds, but to 
 written contracts in general. (Hollier v. 
 Eyre, 9 CI. & Fin. i.) And especially to 
 wills. On this principle, a devise to 
 "one of the sons of L S." — who had 
 several sons — cannot be explained by 
 parol proof. (Strode v. Russell, 2 Vern. 
 624; Cheyney's Case, 5 Rep. 68; Castle- 
 don V. Turner, 3 Atk. 257; Harris v. 
 Bishop of Lincoln, 2 P. Wms. 136, 137; 
 Doe d. Winter v. Perratt. 7 Scott N. R. 
 36.) And if there be a blank in the will 
 for the devisee's name, parol proof can- 
 not be admitted to show what person's 
 name the testator intended to insert. 
 (Baylis v. A. G., 2 Atk. 239; Hunt v. 
 Hart, 3 Bro. C. C. 311, cited 8 Bing. 
 254.) It being an important rule that, 
 in expounding a will, the court is to as- 
 certain, not what the testator actually 
 intended as contradistinguished from 
 
 what his words express, but what is the 
 meaning of the words he has used. (Doe 
 d. Gwillim V. Gwillim, 5 B. & Ad. 129.) 
 If the Statute of Frauds merely Had re- 
 quired that a nuncupative will should not 
 be set up in opposition to a written will, 
 parol evidence might in many cases be 
 admissible to explain the intention of the 
 testator, where the person or thing in- 
 tended by him is not adequately de- 
 scribed in the will ; but if the true mean- 
 ing of that statute be that the writing 
 which it requires shall itself express the 
 intention of the testator, it is difGcult to 
 understand how the statute can be satis- 
 fied by a writing merely, if the descrip- 
 tion it contains have nothing in common 
 with that of the person intended to take 
 under it, or not enough to determine his 
 identity. To define that which is indefi- 
 nite is to make a material addition to the 
 will. (Wigram Extrin. Ev., 3d Ed. 120, 
 121.) In accordance with these observa- 
 tions, where a testator devised his real 
 
 estates " first to K, then to , then to 
 
 L, then to M," etc, and the will refer- 
 red to a card as showing the parties des- 
 ignated by the letters in the will, which 
 card, however, was not shown to have 
 been in existence at the time of the exe- 
 cution of the will, it was held clearly in- 
 admissible in evidence; the court observ- 
 ing that this was a case of a patent am- 
 biguity, and that, according to all the 
 authorities on the subject, parol evidence 
 to explain the meaning of the will could 
 not legally be admitted. (Clayton v. 
 Nugent, 13 M. & W. 200.) 
 
 If, then, a testator's words, aided by 
 the light derived from the circumstan- 
 ces with reference to which they were 
 used, do not express the intention as- 
 cribed to him, evidence to prove the 
 sense in which he intended to use them 
 is, as a general proposition, inadmissi- 
 ble; in other words, the judgment of a 
 court in expounding a will must be sim- 
 ply declaratory of what is in the will. 
 (Wigram, Exfrin. Evid., 3d Ed. 87 et seq.) 
 And to make a construction of a will 
 where the intent of the testator cannot be 
 known has been designated as intentia 
 cteca et sicca. (Taylor v. Web, Styles, 319.) 
 The devise, therefore, in cases falling 
 within the scope of the above observa- 
 
 527 
 
Tatent Ambiguity. 
 
 AMBIGUITY. 
 
 Patent Ambigtlity, 
 
 Ambigfuitas patens — Continued. 
 tion, will, since the will is insensible and 
 not really expressive of any intention, be 
 void for uncertainty. (Gloucester v. Os- 
 born, I H. L. Cas. 272.) 
 
 The rule as to patent ambiguities, 
 which we have just been considering, is 
 by no means confined in its operation to 
 ■the interpretation of wills; for instance, 
 where a bill of exchange was expressed 
 in figures to be drawn for 245/., and in 
 words for two hundred pounds, value re- 
 ceived, with a stamp applicable to the 
 higher amount, evidence to show .that 
 tlie words "and forty-five" had been 
 ■omitted by mistake was held inadmissi- 
 ble. (Saunderson v. Piper, 5 Bing. N. C. 
 425.) For, the doubt being on the face 
 of the instrument, extrinsic evidence 
 ■could not be received to explain it. The 
 instrument, however, was held to be a 
 good bill for the smaller amount, it be- 
 ing a rule laid down by commercial wri- 
 ters that, where a' difference appears be- 
 tween the figures and the words of a bill, 
 it is safer to attend to the words. (Id. 
 431, 434.) But, although a patent am- 
 biguity cannot be explained by intrinsic 
 evidence, it may in some cases be helped 
 by construction, or a careful comparison 
 •of other portions of the instrument with 
 that particular part in which the ambi- 
 guity arises; and in others it may be 
 helped by a right of election vested in 
 the grantee or devisee. (Duckmanton v. 
 Duckmanton. 5 H. & N. 219.) The 
 power being given to him of rendering 
 certain that which was before altogether 
 uncertain and undetermined. For in- 
 stance, where a general grant is made of 
 ten acres of ground adjoining or sur- 
 rounding a particular house, part of a 
 larger quantity of ground, the choice of 
 such ten acres is in the grantee, and a 
 devise to the like effect is to be con- 
 sidered as a grant. (Hobson v. Black- 
 burn, I My. & K. 571, 575.) And if I 
 grant ten acres of Wood where I have 
 one hundred, the grantee may elect which 
 ten he will take; for, in such a case, the 
 law presumes the grantor to have been 
 indifferent on the subject. (Bac. Max. 
 reg. 23.) So, if a testator leaves a num- 
 ber of articles of the same kind to a lega- 
 tee, and dies possessed of a greater num- 
 ber, the legatee, and not the executor, has 
 the right of selection. (Jacques v. Cham- 
 bers, 2 Colly. 435.) On the whole, then, 
 we may observe, in the language of Lord 
 Bacon, that all ambiguity of words within 
 the deed, and not out of the deed, may be 
 helped by construction, or, in some cases, 
 bv election, but never by averment, but 
 rather shall make the deed void for 
 
 uncertainty. (Bac. Max. reg. 23; Wig- 
 ram, Extrin. Ev. 3d Ed. 83, loi.) The 
 general rule, however, as to patent am- 
 biguity must be received with this quali- 
 ficatioui viz., that extrinsic evidence is 
 unquestionably admissible for the pur- 
 pose of showing that the uncertainty 
 which appears on the face of the instru- 
 ment does not, in point of fact, exist; 
 and that the intent of the party, though 
 uncertainly and ambiguously expressed, 
 may yet be ascertained, by proof of facts, 
 to such a degree of certainty as to allow 
 of the intent being carried into effect. 
 (2 Phill. Evid., loth Ed,, 389.) In cases 
 falling within the scope of this remark, 
 the evidence is received, not for the pur- 
 pose of proving the testator's intention, 
 but of explaining the words which he has 
 used. Suppose, for instance, a legacy 
 "to one of the children of A," by her 
 late husband B; suppose, further, that 
 A had only one son by B, and that this 
 fact was known to the testator; the nec- 
 essary consequence, in such a case, of 
 bringing the words of the will into con- 
 tact with the circumstances to which they 
 refer must be to determine the identity 
 of the person intehded, it being the form 
 of expression only, and not the intention, 
 which is ambiguous; and evidence of 
 facts requisite to reduce the testator's 
 meaning to certainty would not, it should 
 seem, in the instance above put, be ex- 
 cluded; though it would be quite another 
 question if A had more sons than one, or 
 if her husband were living. (Wigram, 
 Ex. Ev. 3d Ed. 66.) "In the case of a pa- 
 tent ambiguity," remarks I. Plumer(CoI- 
 poys V. Colpoys, i JaC. R. 463, 464; Col- 
 lision V. Curling, 9 CI. & Fin. 88), "that 
 is, one appearing on face the of the instru- 
 ment, as a general rule a reference to mat- 
 ter dehors the instrument is forbidden. It 
 must, if possible, be removed by con- 
 struction and not by averment. But in 
 many cases this is impracticable. Where 
 the terms used are wholly indefinite and 
 equivocal, and carry on the face of them 
 no certain or explicit meaning, and the 
 instrument furnishes no materials by 
 which the ambiguity thus arising can be 
 removed, if in such cases the court were 
 to reject the only mode by which the 
 meaning could be ascertained, viz., the 
 resort to extrinsic circumstances, the in- 
 strument must become inoperative and 
 void. As a minor evil, therefore, com- 
 mon-sense and the law (which are sel- 
 dom at variance) warrant the departure 
 from the general rule, and call in the 
 light of extrinsic evidence." Broom's 
 Leg. Max. (8th Am. Ed.) 608. 
 
 538 
 
Patent Ambiguity. 
 
 AMBIGUITY. 
 
 Patent Ambiguity.. 
 
 Extrinsic evidence is not admissible to remove a patent ambi- 
 guity, and the instrument is inoperative and void.^ 
 
 1. Pickering v. Pickering, 50 N. H. 
 349; Webster v. Atkinson, 4 N. H. 21; 
 Bartlett v. Nottingham. 8 N. H. 300; 
 Greenleaf v. Kilton, 11 N. H. 531; Brown 
 V. Brown, 43 N. H. 25; Pingry v. Wat- 
 kins, 17 Vt. 479; Pitts V. Brown. 49 Vt. 
 86; Blossburg, etc., R. Co. v. Tioga R. 
 Co., I Abb. Dec. (N. Y.) 149; Mann v. 
 Mann, i Johns. Ch. (N. Y.) 231 ; 14 Johns. 
 1; s. c, 7 Am. Dec. 416; Mumford z/. 
 Hallett, I Johns. (N. Y.) 433; Jackson v. 
 Sill, II Joiins. (N. Y.) 201; s. c, 6 Am. 
 Dec. 363; Smith v. Smith, i Edw. Ch. 
 (N. Y.) 189; Hyatt v. Pugsley, 23 Barb. 
 (N. Y.) 285; Hall V. Leonard, i Pick. 
 (Mass.) 27; Comstock v. Van Deusen, 5 
 Pick. (Mass.) 163; Brown v. Saltonstall, 
 3 Mete. (Mass.) 423; Tucker v. Seamen's 
 Aid Soc. 7 Mete. (Mass.) 188; Storer v. 
 Freeman, 6 Mass. 435; s. c, 4 Am. Dec. 
 155; King z). King, 7 Mass. 496; Revere 
 V. Leonard, I Mass. 93; Bigelow CoUa- 
 iiiore, 5 Cush. (Mass.) 226. Ayres v. 
 Weed, 16 Conn. 2gi; Comstock v. Had- 
 lyme, 8 Conn. 254; s. c, 22 Am. Dec. 
 100; Avery 11. Chappell, 6 Conn. 270; 
 s. c, 16 Am. Dec. 53; McDermot f. U. 
 S. Ins. Co., 3 S. & R. (Pa.) 604; Duncan 
 V. Duncan, 2 Yeates (Pa.), 302; Littler. 
 Henderson, 2 Yeates (Pa.), 295; Horner 
 V. Stillwell, 35 N. J. L. 307; Waldron v. 
 Waldron, 45 Mich. 350: Crooks v. Whit- 
 ford, 47 Mich. 283; Hollen v. Davis, 59 
 Iowa, 444; s. c, 44 Am. Rep., 688; Rich- 
 mond, etc., Co. V. Farquar, 8 Blackf. 
 (Ind.) 89; Walston v. White, 5 Md. 297; 
 Clark V. Lancaster, 36 Md. 196; Hamil- 
 ton V. Cawood, 2 H. & McH. (Md.) 437; 
 s. c. I Am. Dec. 378; Hunt v. Gist, 2 H. 
 & J. (Md.) 498; Fenwick v. Floyd, i H. 
 & J. (Md.) 172; Dashiel v. Atty-Gen., 6 
 H. & J. (Md.) i; 5 H. & J. (Md.) 392; 
 s. c, 9 Am. Dec. 572; Bowyerz/. Martin, 6 
 Rand. (Va.) 525 ; Jennings v. Brizeadine, 
 44 Mo. 332: King V. Fink. 51 Mo. 209; 
 Campbell v. Johnson, 44 Mo. 247; Mar- 
 shall V. Gridley, 46 111. 247; Purinton v. 
 N. 111. R. Co., 46 111. 297; Panton v. 
 Tefft, 22 111. 366; Griffith v. Furry, 30 
 111. 251; Harris v. Dinkins, 4 Desaus. (S. 
 Car.), 60; Mithoff v. Byrne, 20 La. Ann. 
 363; Chambers v. Ringstaff, 69 Ala. 140; 
 Johnson v. Ballew, 2 Port. (Ala.) 29; 
 McGuire v. Stevens, 42 Miss. 724; Peach- 
 cr I/. Strauss, 47 Miss. 358; Nashville L. 
 Ins. Co. V. Mathews, 8 Lea(Tenn.), 499; 
 Betts V. Demumbrune, Cooke (Tenn.), 39; 
 Breckinridge v. Duncan, 2 A. K. Marsh 
 (Ky.), 50; s. c, 12 Am. Dec. 359; Worman 
 V. Teagarden. 2 Ohio St. 380; Morris v. 
 Edwards, i Ohio, 189; McNair v. Toler, 
 
 5 Minn. 435; Brauns v. Stearns, 1 Ore- 
 gon, 367; Deery v. Cray, 10 Wall. (U. S.) 
 263; Patch V. White, 1 Mackey (D. C), 
 468; s. c, 117 U. S. 210; Smith 2/. Thomp- 
 son, 8 C. B. 44, 59; Sotilichos v. Kemp, 
 3 Exch. 105; Doe v. Westlake, 4 B. & 
 A. 57; Brodie v. St. Paul, i Ves., Jr. 326. 
 Compare I Jarmin on Wills (Bigelow's 
 Ed.), *429, 430; Fish v. Hubbard, 21 
 Wend. (N. Y.) 651; Ely v. Adams, 19. 
 Johns. (N. Y.) 313; Morris v. Edwards, 
 I Ohio, 189; Panton v. Tefit, 22 111. 
 366; Com. V. Blaine, 4 Binn. (Pa.) 186; 
 Doe d. Good v. Needs. 2 M. & W. 129; 
 Doe (^. Smith v. Jersey, 2 B. & B. 553;. 
 Fonereau v. Poyntz, i B. C. C. 472; Col- 
 poys V. Colpoys, Jac. 451. 
 
 Where the description in a deed read 
 ,"38 degrees" instead of "38 perches," 
 held, that the ambiguity was patent, and 
 parol evidence to explain it was inadmis- 
 sible. Clarke v. Lancaster, 36 Md. 196. 
 See Peacher v. Strauss. 47 Miss. 358; 
 Horner z/. Stillwell, 35 N. J. L. 307. 
 
 Where a deed, for description of 
 the property, refers to a map, the map 
 is to be considered with the deed in con- 
 struing it, and if, from the face of such 
 deed and map, it appears that there are 
 two lots to which the description in the 
 deed equally applies, the ambiguity is 
 patent, and resort cannot be had to pa- 
 rol to show which lot was intended to be 
 conveyed. Brandon v. Leddy, 7 Pac. 
 Repr. (Cal.) 33. 
 
 A promissory note was in the follow- 
 ing form : 
 "$200.00. 
 
 " Tama City, Iowa, July 27th, 1875. 
 
 " Fifteen months after date I promise 
 
 to pay to the order of Richard Thomas, 
 
 and in case of his death to J. D. Merritt, 
 
 dollars, at the Banking House of 
 
 Carmichael, Brooks & Co., for value re- 
 ceived, with interest at ten per cent per 
 annum. Fred. T. Davis. 
 
 " Due October 27th, 1876." 
 Held, that parol proof could not be in- 
 troduced to explain the ambiguity. Hol- 
 len V. Davis, 59 Iowa, 444; s. i,., 44 Am. 
 Rep. 688. 
 
 In the following note, " One day after 
 date we promise to pay to D. F. or order 
 four hundred and fifty-six yJJ dollars. 
 for value received, ten per cent," held, 
 that the words " ten per cent " make a 
 case of patent ambiguity in the note, 
 which cannot be explained by parol evi- 
 dence. Griffith V, Furry, 30 111. 251. 
 
 Where an instrument is drawn in the 
 name of A. but executed by B, it is a 
 
 539 
 
Latent Ambignity. 
 
 AMBIGUITY. 
 
 Latent Ambiguity. 
 
 3. Latent Ambiguity. — This is an ambiguity which arises not 
 upon the words of the will, deed, or other instrument, as looked 
 at in themselves, but upon those words when applied to the object 
 or to the subject which they describe.^ 
 
 patent ambiguity. Brauns v, Stearns, i 
 Oregon, 367. 
 
 A testator requested his executors "to 
 sell and dispose of the following-described 
 land," but left out the description. Held, 
 that evidence that he owned a parcel of 
 land not specifically disposed of was not 
 admissible for the pur'pose of supplying 
 the missing description. Crooks v. 
 Whitford, 47 Mich. 283. 
 
 A testator wrote his will in various 
 pages of a book at different times, part 
 of it being executed and attested in 1820, 
 and the remainder in 1827. No devisees 
 were mentioned by name, but the tes- 
 tator's real estates were devised " first to 
 
 K., then to , then to L., then to 
 
 M.," etc. On a slip of paper pasted into 
 the book, and forming part of the will 
 at the time of the attestation in 1820, the 
 testator stated that "the key and index 
 to the letter, initials," etc., were in a 
 writing-case, in the drawer of his writing- 
 desk, on a card. The testator died on 
 the nth of December, 1828, and on that 
 day a card, in his handwriting and signed 
 by him, was found in the writing-desk, 
 dated January 30th, 1828, as follows: 
 " K. signifies Eleanor Mary East; L. 
 signifies Gilbert East Clayton; M. signi- 
 fies second son of William Robert Clay- 
 ton; N. signifies eldest son of Richard 
 Rice Clayton." Two years before his 
 death, a card with writing on it had been 
 seen by a person lying before the testator, 
 together with the book containing the 
 will, which appeared to be similar to the 
 card and writing thereon found after his 
 death. Held, that the will disclosed, on 
 the face of it, a patent ambiguity; and 
 that the card, which was not in existence 
 at the date of the will, was not admissible 
 as a declaration of the intention of the 
 testator, nor was it receivable as second- 
 ary evidence of another card, supposing 
 any such card to have existed at the time 
 of his will. Clayton v. Nugent, 13 M. & 
 W. 200; 13 L. J. Exch. 363. 
 
 A testatrix whose will was on a printed 
 form, after directing payment of her 
 debts by her executrix, gave all her 
 
 property "unto , to and for her 
 
 own use and benefit absolutely, and I 
 nominate and constitute and appoint my 
 niece, Catherine Hellard, to be executrix 
 of this any last will." Held, that the 
 words must be read consecutively, and 
 so read that there was a good gift of the 
 
 residue to Catherine Hellard. To con- 
 strue a will the court may look at the 
 original will as well as the probate copy. 
 Re Harrison, Turner v. Hellard, L. R. 
 30 Ch. 390. 
 
 Where a suit was brought upon two 
 notes for equal amounts and a nol. pros. 
 was entered as to one, but as to which it 
 was not apparent from the record, and 
 a suit was subsequently brought upon 
 one of the notes; held, that the ambigu- 
 ity upon the record was patent, and that 
 evidence was not admissible to show to 
 which of the notes the twI. pros, had 
 been intended to apply. Bisbee v. Wood- 
 bury, 8 111. App. 336. 
 
 TTnder Georgia Code. — The Code de- 
 clares that " parol evidence is admissible 
 to explain all ambiguities, both latent and 
 patent." While a mistake in the name of 
 a grantee of land from the State cannot 
 be proved by parol when it is offered in 
 evidence, yet where the grant described 
 the grantee as " Ferrell" and the plat ac- 
 companying it described him as "Ter- 
 rell," and each located him in a certain 
 district, there was a patent ambiguity, 
 and parol testimony was admissible to 
 show that Ferrell was the name of the 
 man living in that district, and that no 
 such man as Terrell lived there. Ferrell 
 V. Hurst, 68 Ga. 132. 
 
 The expression ' ' value received' ' in a 
 note is a patent ambiguity, and under the 
 Georgia statute it may be explained, and 
 failure of consideration shown by parol. 
 Pitts V. Allen, 72 Ga. 69. 
 
 1. Howard v. Amer., etc., Soc. , 49 
 Me. 288; Emery v. Webster, 42 Me. 204; 
 s. c, 66 Am. Dec. 274; Storer v. Elliott 
 Ins. Co., 45 Me. 175; Jay v. East Liver- 
 more, 56 Me. 107, 120; Patrick v. Grant, 
 14 Me. 233; Haven v. Brown, 7 Me. 
 421; s. c.', 22 Am. Dec. 208; Bell v. 
 Woodward, 46 N. H. 315; French v. 
 Hayes, 43 N. H. 30; s. c, 80 Am. Dec. 
 127; Hall V. Davis, 36 N. H. 569; 
 Winkley v. Kaime, 32 N. H. 268; Tilton 
 V. Am. B. Soc, 60 N. H. 377; Att'y-Gen. 
 V. Publin, 38 N. H. 459; Goodhue v. 
 Clark, 37 N. H. 525; Bartlett v. Reming- 
 ton, 59 N. H. 364; Button V. American, 
 etc., Soc, 23 Vt. 336; Simpson v. Dix, 
 131 Mass. 179; Keller v. Webb, 125 
 Mass. 88; Lovejoy v. Lovett, 124 Mass. 
 270; Hurley v. Brown, 98 Mass. 545: 
 Stoops V. Smith, 100 Mass. 63; Putnam 
 V. Bond, 100 Mass. 58; Miller v. Stephens, 
 
 530 
 
Latent Ambiguity, 
 
 AMBIGUITY. 
 
 Latent Ambiguity. 
 
 Latent ambiguities are of two kinds : first, where the descrip- 
 tion of the devisee or the property devised is clear upon the face 
 of the will, but it turns out that there are more than one estate or 
 more than one person to which the description applies ; and, 
 
 second, where the devisee or the property devised is imperfectly, 
 or in some respects erroneously, described, so as to leave it doubt- 
 ful what person or property is meant.^ 
 
 loo Mass. 518; Pike v. Fay, loi Mass. 35 Ga. 184; Doyle v. Estornet, 13 La. 
 
 134; Bodman v. Am. Trac. Soc, g Ann. 318; Hildebrand v. Fogle, 20 Ohio, 
 
 Allen (Mass.), 447; Sargent v. Adams, 147; Masters v. Freeman, 17 Ohio St. 
 
 3 Gray (Mass.), 72; s. c, 63 Am. Dec. 323; Goff v. Roberts, 72 Mo. 570; She- 
 
 718; Brown v. Brown, 8 Mete. (Mass.) waiter v. Pirner, 55 Mo. 218; Shuetze v. 
 
 576; Waterman v. Johnson, 13 Pick. Bailey, 40 Mo. 6g; Mason v. Ryus. 26 
 
 (Mass.) 261: Hotchkiss v. Barnes, 34 Kans. 464; Hamman sy. Keigwin, 39 Tex. 
 
 Conn. 27; Coit v. Starkweather, 8 Conn. 34; Slater v. Breese, 36 Mich. 77; Corn- 
 
 289; Brewster v. McCall, 15 Conn. 274; well v. Cornwell, gi 111. 414; Ball v. 
 
 Clark V. Woodruff, 83 N. Y. 518; White's Benjamin, 73 111. 39; School Trustees v. 
 
 Bank v. Myles, 73 N. Y. 335; Knapp v. Rodgers, 7 111. App. 33; Martindale v. 
 
 Warner. 57 N. Y. 668; Bridgerz/. Pierson, Parsons, 98 Ind. 174; Price v. Price, 89 
 
 45 N. Y. 601; Field v. Munson, 47 N. Ind. 90; Reissner p. Oxley, 80 Ind. 580; 
 
 Y. 223; Griffiths v. Hardenburg, 41 N. Durland v. Pitcairn, 51 Ind. 426; Nilson 
 
 Y. 464; Pollen V. Le Roy, 30 N. Y. 549; v. Morse, 52 Wis. 240, 247; Begg v. 
 
 Blossom V. Griffin, 13 N. Y. 569; s. c, Begg, 56 Wis. 534; Altschul v. San Fran- 
 
 67 Am. Dec. 75; Dubois v. Ray, 35 N. cisco, etc., 43 Cal. 171; Board, etc., v. 
 
 Y 162; Galen v. Brown, 22 N. Y. 37; Keenan, 55 Cal, 642; Reamers'. Nesmith, 
 
 Tillotson V. Race, 22 N. Y. 122; Peters 34 Cal. 624; Piper v. True, 36 Cal. 606; 
 
 ■V. Porter, 60 How. Pr. (N. Y.) 422; Jones v. Dove, 6 Ore. 188; Conlam v. 
 
 Gallup -0. Wright, 61 How. Pr. (N. Y.) Douli, g Pac. Repr. (Utah) 568; Moore v. 
 
 286; Trustees v. Colegrove, 4 Hun (N. U. S., 17 Ct. of CI. 17; Pratt v. Cal. M. 
 
 Y.), 362; Pond V. Bergh, 10 Paige (N. Co., 24 Fed. Repr. 869; s. c, 9 Sawy. 
 
 Y.), 40; In re Ensign, 3 Demarest (N. (U. S.) 354; Pittsburg, etc., R. Co. v. 
 
 Y.), 516; Seaman z/. Hogeboom, 21 Barb. Columbus, etc., R. Co., 8 Biss. (U. S.) 
 
 (N. Y.) 3g8; Thomas v. Truscott, 53 457; Starr z/. Stark, i Sawy. (U. S.) 603; 
 
 Barb. (N. Y.) 200; Ely v. Adams, ig tjnited States v. Peck, 102 U. S. 64; 
 
 Johns. (N. Y.) 313; Jackson v. Perrine, Chicago v. Sheldon, g Wall. (U. S.) 54; 
 
 35 N. J. L. 137; Sandford v. Newark, Blake v. Doherty, 5 Wheat, (U. S.) 359; 
 
 etc., R. Co., 37 N. J. L. i; Hartwell v. Bank of U. S. v. Dunn, 6 Pet. (U. S.) 51; 
 
 Camman, 10 N. J. Eq. 128; s. c, 64 Reed k. Ins. Co., 95 U. S. 23; Charter j/. 
 
 Am. Dec. 448; Caley v. Phila., etc., R. Charter, L. R. 2 P. & D. 315; In re 
 
 Co., 80 Pa. St. 363; McCuUough v. Nunn, L. R. 19 Eq. 331; Grant i/. Grant, 
 
 Wainright, 14 Pa. St. 171; Domestic L. R. 5 C. P. 380, 727; In re Kilvert, L. 
 
 App . 30 Pa. St. 425; Russell v. Werntz, R. 7 Ch. 170; 12 Eq. 183; Parsons v. . 
 
 24 Pa. St. 337; Warfield v. Booth, 33 Parsons, i Ves., Jr. 266; Careless v. 
 
 Md. 63; Fryer ■v. Patrick, 42 Md. 51; Careless, 19 Vesey, Jr. 505, 601; Chey- 
 
 Hawkins v. Garland, 76 Va. 149; s. c, ney's Case, 5 Rep. 68; Raffles v. Wichel- 
 
 44 Am. Rep. 158; Knick v. Knick, 75 haus, 2 H. & C. go6; Haigh v. Brooks, 
 
 Va. 12; Maund v. McPhail, 10 Leigh 10 A. & E. 390; Butcher v. Stewart, 11 
 
 (Va.), igg; Elliott -u. Horton, 28 Gratt. M. & W. 857. 
 
 (Va.) 766; Wharton v. Eborn, 88 N. Car. 1. Patch v. White, 117 U. S. 221. 
 344; Hilliard v. Phillips, 81 N. Car. gg; Where a deed of trust provides for a 
 Edwards z/. Tipton, 77 N. Car. 222; Elfe sale "at the court-house door at the city 
 V. Gadsden, 2 Rich. (S. Car.) 373; Cham- of J.," if it appears that at the time of 
 bers TJ. Ringstaff, 6g Ala. 140; Baucum the execution of the deed there were two 
 z/. George, 65 Ala. 25g; Paysant w. Ware, houses in the city of J. called court- 
 I Ala. 160; Chambers v, Falkner, 65 Ala. houses, parol evidence is admissible to 
 448; Wilson V. Home, 37 Miss. 477; show which was intended. Goff v. Rob- 
 Nashville L. Ins. Co. V. Mathews, 8 Lea erts, 72 Mo. 570. 
 
 (Tenn.), 49g; Wilson v. Robertson, 7 J. If land is conveyed to J. S. and there 
 
 J. Marsh (Ky.), 78; Bell v. Boyd, 53 Ga. are two persons of that name, a father 
 
 643; Bowen v. Slaughter, 24 Ga. 338; s. and son, there is no presumption that the 
 
 c, 71 Am. Dec. 135; Crawford zi. Brady, father is intended; and evidence is ad 
 
 531 
 
Effect of 
 
 AMBIGUITY. 
 
 Eyidence. 
 
 4. Eflfect of Evidence. — Evidence is received, not for the purpose 
 of importing into the writing an intention not expressed therein, 
 but simply with the view of elucidating the meaning of the words 
 employed; and, in its admission, the line which separates evi- 
 dence which aids the interpretation of what is in the instrument 
 from direct evidence of intention independent of the instrument 
 must be kept steadily in view ; the duty of the court being to 
 declare the meaning of what is written in the instrument, not of 
 what was intended to be written. '^ 
 
 missible to show who is the grantee. 
 Simpson v. Dix, 131 Mass. 179. See 
 Grant v. Grant, L. R. 5 C. P. 380, 727; 
 Charter v. Charter, L. R. 2 P. & D. 315; 
 Begg V. Begg, 56 Wis. 534. 
 
 When a mortgagee is described as 
 the president of a corporation, both in 
 the mortgage and in the secured note, 
 and it is doubtful from the face of the 
 papers whether, they were intended for 
 his benefit in his individual capacity, or 
 in his official character as the representa- 
 tive of the corporation, parol evidence is 
 admissible in equity to remove the uncer- 
 tainty. Chambers v. Falkner, 65 Ala. 
 448. 
 
 Where an instrument has no punctua- 
 tion marks, and is in consequence sus- 
 ceptible of two readings which differ in 
 the sense, parol evidence is admissible to 
 explain its meaning. Graham v. Hamil- 
 ton. 5 Ired. (N. Car.) 428. 
 
 Where a plaintiff in an execution gave 
 to a deputy-sheriff a writing stating that 
 he wished him to show the defendant as 
 much indulgence as could with safety to 
 himself be shown, and without hazarding 
 the debt, held, that the writing, being in 
 itself ambiguous parQl evidence of the 
 conversation between the plaintiff and 
 the officer at the time, and of collateral 
 extraneous facts to ascertain the nature 
 and extent of the indulgence which the 
 officer was to show, was admissible. Ely 
 V. Adams, 19 Johns. (N. Y.) 313. 
 
 The prospectus of a company which 
 was being formed to take over iron- 
 works contained a statement that " the 
 present value of the turnover or output 
 of the entire works is over ;^r, 000,000 
 sterling per annum." If that statement 
 meant that the works had actually in one 
 year turned out produce worth at present 
 prices more than a million, or ^t that 
 rate per year, it was untrue. If it meant 
 only that the works were capable of turn- 
 ing out that amount of produce, it was 
 true. In an action of deceit for fraudulent 
 misrepresentation, whereby the plaintiff 
 was induced to take shares, he swore in 
 answer to interrogatories that he "un- 
 derstood the meaning" of the statement 
 
 "to be that which the words obviously 
 conveyed," and at the trial was not asked 
 either in examination or cross-examina- 
 tion what interpretation he had put upon 
 the words. Held, by the Earl of Sel- 
 borne, L. C. , and Lords Blackburn and 
 Watson, affirming the decision of the 
 Court of Appeal, that the statement taken 
 in connection with the context was am- 
 biguous and capable of the two mean- 
 ings; that it lay on the plaintiff to prove 
 that he had interpreted the words in the 
 sense in which they were false, and had 
 in fact been deceived by them into taking 
 the shares, and that as he had as a mat- 
 ter of fact failed to prove this the action 
 could not be maintained. Smith v. 
 Chadwick, L. R. 9 App. Cas. 187; s. c, 
 5 Am. & Eng. Corp. Cas. 23. 
 
 Statutes. — If a statute be so vague in 
 its terms as to convey no definite mean- 
 ing to the court or a ministerial officer, it 
 is void. An act of assembly prohibited 
 the sale of liqupr "within three miles of 
 Mt. Zion church in Gaston county," and 
 it appeared on trial of an indictment for 
 its violation that there were two churches 
 of that name in the county. Held, the 
 act is ambiguous and inoperative. State 
 V. Partlow, gi N. Car. 550. See also 
 Statutes (Construction of,) 
 
 1. Hughes V. Wilkinson, 35 Ala. 453;. 
 Guilmartin v. Wood, 76 Ala. 204; Wal- 
 dron V. Waldron, 45 Mich. 350; Crawford. 
 V. Jarrett, 2 Leigh. (Va.) 630; Clarke v. 
 Lancaster, 36 Md. ig6; Cooper !<. Berry, 
 21 Ga. 526; Hill V. Felton, 47 Ga. 455; 
 Epperson z/. Young, 8 Tex. 135; Franklin 
 V. Mooney, 2 Tex. 452; Donley v. Tin- 
 dall, 32 Tex. 43; Dorr v. School Dist., 
 40 Ark. 237; Gallup v. Wright, 61 How. 
 Pr. (N. Y.) 286, Peters v. Porter, 60 
 How. Pr. (N. Y.) 422; Bell v. Holford, 
 I Duer (N. Y.). 58; Den v. Cubberly, 12 
 N. J. L. 308; Evans v. Griscom, 42 N. 
 J. L. 579; s. c, 36 Am. Rep. 542; Pick- 
 ering V. Pickering, 50 N. H. 349; Ber- 
 gin V. Williams, 138 Mass. 544; Bradley 
 V. Packet Co., 13 Pet. (U. S.) 89; Thor- 
 ington V. Smith, 8 Wall. (U. S.) i; Han- 
 ner v. Moulton, 23 Fed. Repr. 5; Charter 
 V. Charter L. R. 7 H. L. 364. 
 
 533 
 
Effect of 
 
 AMBIGUITY. 
 
 Evidence. 
 
 A mere mistake is not a latent ambiguity. Where there is no 
 latent ambiguity then no extrinsic evidence can be received.* 
 
 Where an instrument in writing is am- 
 biguous, the intention of the parties to 
 it is to be ascertained from the entire 
 instrument, not from particular words or 
 phrases without reference to the con- 
 text. The instrument must operate ac- 
 cording to the intention of the parties 
 unless it be contrary to law. Where the 
 meaning is doubtful, the circumstances 
 at the leaking of the instrument, and the 
 subsequent acts of the parties, are to be 
 considered in determining the sense of the 
 words. Berridge v. Glassey, 112 Pa. 
 St. 442. 
 
 If by the aid of such evidence a sur- 
 veyor can find the land so ambiguously 
 described, the deed will be sufficient. 
 Dorr V. School Dist., 40 Ark. 237. 
 
 Devise of ' ' all that my farm and plan- 
 tation near Cropwell, conveyed to me 
 by the heirs of my deceased wife, and 
 where my son Thomas now resides, con- 
 taining about eighty-five acres, more or 
 less." The testator owned two parcels 
 of land near Cropwell, the one a farm 
 containing about seventy-two and sixty- 
 two hundredths acres, which had been 
 conveyed to him by the heirs of his de- 
 ceased wife, and the other containing 
 fourteen and seventy-three hundredths 
 acres, which had been conveyed to him 
 by one Abel Lippincott. These two 
 parcels adjoined each other, and had 
 been rented and cultivated together for 
 many years. Thomas resided on the 
 first-named parcel, but cultivated and 
 used both. Held, that only those prem- 
 ises which had been conveyed to the 
 testator by the heirs of his deceased wife 
 passed under the devise. Evans v. 
 Griscom, 42 N. J. L. 579; s. c, 36 Am. 
 Rep. 542. 
 
 Evidence can be received to prove 
 that a. promise made in one of the Con- 
 federate States, and expressed in dollars, 
 was in fact made for the payment of 
 Confederate notes. Such evidence does 
 not modify or alter the contract. It 
 simply explainsJ-an ambiguity. Thoring- 
 ton V. Smith, SS Wall. (U. S.) i. See 
 Sexton V. Windell, 23 Graft. (Va.) 534, 
 where the term used was ' ' current 
 funds." See Thompson v. Sloan, 23 
 Wend. (N. Y.)''7i; s. k.., 35 Am. Dec. 
 546. 
 
 Where a contract of sale was for " all 
 white-oak timber large enough to make 
 cross-ties on land." Held, that parol evi- 
 dence was not admissible to sliow that 
 white-oak timber which was, much larger 
 
 than that used to make cross ties was not 
 included. Tatman v. Barrett, 3 Houst. 
 (Del.) 226. 
 
 Parol evidence is admissible to iden- 
 tify certain specifications referred to in a 
 written contract to erect a building; and, 
 when identified, they may be considered 
 in connection with the contract on the 
 issue whether the contract is void for 
 uncertainty. Bergin v. Williams, 138 
 Mass. 544. 
 
 The plaintiff offered to take a lease of 
 furnaces from the defendant, condition- 
 ally upon his being able to make ar- 
 rangements with other persons as to ore. 
 A loosely-drawn memorandum was short- 
 ly afterwards signed by the parties, sub- 
 stituting certain other rents for the rents 
 mentioned in the letter, which in other 
 respects was to form the basis of the 
 agreement. The defendant, understand- 
 ing that the lease was to begin immedi- 
 ately, offered possession to the plaintiff 
 at once, but the plaintiff refused to take 
 it, as he had not yet made arrangements 
 for ores, and continued to treat the 
 agreement as conditional on his making 
 those arrangements. Ultimately the 
 parties differed as to the covenants to 
 be inserted in the lease, and the plaintiff 
 commenced his action for specific per- 
 formance. Held, that although where 
 an agreement is clear the court must 
 act upon its own view of the construc- 
 tion without regard to the view enter- 
 tained by the parties, yet where a party 
 has throughout insisted on one con- 
 struction of an obscure agreement, he 
 cannot get specific performance on the 
 footing of the opposite construction. 
 Marshall v. Berridge, L. R. 19 Ch. 233. 
 
 1. Cheyney's Case, 5 Rep. 68; Doe v. 
 Oxenden, 3 Taunt. 147; Smith v. Mait- 
 land, I Ves., Jr. 362; Chambers v. Min- 
 chin, 4 Ves. 675, and note; Doe v. West- 
 lake, 4 B. & Aid. 57; Newburgh v. New- 
 burgh, 5 Madd. 364; Clementson v. 
 Gandy, i Keen, 309; Brown v. Salton- 
 stall, 3 Mete. (Mass.) 423; Mann v. Mann, 
 I Johns. Ch. (N. Y.) 231; Yates v. Cole, 
 I Jones Eq. (N Car.) no; Walston v. 
 White, 5 Md. 297; Cesar v. Chew, 7 G. 
 & J. (Md.) 127; Fitzpatrick v. Fitzpat- 
 rick, 36 Iowa, 674; Kurtz v. Hibner, 55 
 111. 514. 
 
 In Miller v. Travers, 8 Bing. 244, 
 Tindal, Chief Justice of the Common 
 Pleas, and Lyndhurst, Chief Baron of 
 the Exchequer, were called in to assist 
 Brougham, Lord Chancellor. Their joint 
 
 I C. of L.— 35 
 
 533 
 
Belonging to an 
 
 AMBIGUITY. 
 
 Intermediate Class. 
 
 5. Ambiguity belonging to an Intermediate Class. — There is also an 
 ambiguity recognized in cases involving principles which are 
 scarcely referable to either latent or patent ambiguities. It arises 
 when, on mere inspection, there does not appear to be any uncer- 
 tainty or ambiguity, and frequently grows out of a careless use 
 of language, and it sometimes results from the many shades of 
 
 opinion was delivered by Tindal, Chief 
 Justice. The case was this: The testa- 
 tor devised all his freehold and real es- 
 tate in the county of Limerick and city 
 -of Limerick. The testator had no real 
 estate in the county of Limerick, but his 
 real estate consisted of lands in the. 
 county of Clare, which were not men- 
 tioned in the will, and a small estate in 
 the city of Limerick inadequate to meet 
 the charges in the will. The devisee 
 offered to show by parol evidence that 
 the estates in the county of Clare were 
 inserted in the devise to him, in the first 
 draft of the will, which was sent to a 
 conveyancer to make certain alterations 
 not affecting those estates; that by mis- 
 take he erased the words "county of 
 Clare," and that the testator, after keep- 
 ing the will by him for some time, exe- 
 cuted it without adverting to the altera- 
 tion as to that county. The case was 
 considered on the assumption that the 
 extrinsic evidence, if admitted, would 
 show that the county of Clare was omit- 
 ted by mistake, and that the land in that 
 county was intended to be included in the 
 devise. But the evidence was held. inad- 
 missible to show that the testator intend- 
 ed to devise property which had been 
 omitted by mistake. 
 
 So in Box V. Barrett, Law Rep. 3 Eq. 
 244. Lord Romiliy, Master of the Rolls, 
 said: " Because the testator has made a 
 mistake you cannot afterwards remodel 
 the will and make it that which you sup- 
 pose he intended, and as he would have 
 drawn it if he had known the incorrect- 
 ness of his supposition." 
 
 In Jackson v. Sill, ir Johns. (N. Y.) 
 201, which was an action of ejectment, 
 the defendant claimed under the follow- 
 ing devise to the testator's wife: " I also 
 give to my said beloved wife the farm 
 which I now occupy, together with the 
 whole crops," etc. In a subsequent part of 
 his will the testator mentioned said prem- 
 ises as his lands. It turned out that the 
 premises in controversy were, at the 
 lime the will was made, and at the death 
 of the testator, in the possession of one 
 Salisbury under a lease for seven years. 
 The plaintiff offered testimony to show 
 that the testator intended to devise the 
 prc^nuscs as a part of the farm which he 
 
 occupied himself and of which he died 
 possessed. Chief Justice Thompson, af- 
 terwards a justice of this court, in deliv- 
 ering judgment, said: " I think it unnec- 
 essary to notice particularly the evidence 
 offered; for it 'is obvious that, if it was 
 competent, especially that of Mr. Van 
 Vechten, it would have shown that the 
 premises were intended by the testator to 
 be devised to the defendant Sill. The 
 will was drawn, however, by Mr. Van 
 Vechten under a misapprehension of 
 facts, and under a belief that the testator 
 was in the actual possession of the prem- 
 ises. It is, therefore, a clear case of 
 mistake, as I apprehend, and under this 
 belief I have industriously searched for 
 some principle that would bear me out 
 in letting in the evidence offered; but I 
 have searched in vain, and am satisfied 
 the testimony cannot be admitted in a 
 court of law without violating the wise 
 and salutary provisions of the statute of 
 wills, and breaking down what have been 
 considered the great landmarks of the 
 law on this subject." 
 
 In Tucker v. Seaman's Aid Society, 7 
 Mete. (Mass.) 188, the testator gave a 
 legacy to the ' ' Seaman's Aid Society m 
 the city of Boston," which was the cor- 
 rect name of the society. The legacy ' 
 was claimed, however, by another soci- 
 ety called the Seaman's Friend Society. 
 Chief Justice Shaw, in stating the case, 
 said: "It is also, we think, well proved 
 by the circumstances which preceded and 
 attended the execution of the will, as 
 shown by extrinsic evidence, that it was 
 the intention of the testator to make the 
 bequest in question to the ' Seaman's 
 Friend Society,' and at the time of the 
 execution of the will he believed he had 
 done so;" "that the testator was led into 
 this mistake by erroneous information 
 honestly given to him by Mr. Baker who 
 drew his will;" "that the testator acted 
 on this erroneous information — erroneous 
 as to his real purpose, as it now appears 
 by the evidence — and made the bequest 
 to the Seaman's Aid Society by their pre- 
 cise name and designation." The court, 
 therefore, held that there was simply a 
 mistake and no latent ambiguity, and 
 that extrinsic evidence was inadmissi- 
 ble. 
 
 584 
 
Wills. 
 
 AMBIGUITY. 
 
 Wills, 
 
 meaning that usage and provincial habit accord to the same word 
 or expression. Out of this has grown a seeming modification of 
 the old rule as to patent ambiguity, which has been characterized 
 as an intermediate class of cases partaking of the nature of both 
 latent and patent ambiguities. In such case parol evidence may 
 be admitted to show the circumstances under which the contract 
 was made, and the subject-matter to which the parties referred.^ 
 
 6. Wills. — A latent ambiguity in a will which may be removed 
 by extrinsic evidence may arise (i) either when it names a person 
 as the object of a gift, or a thing as the subject of it, and there 
 are two persons or things that answer such name or description ; 
 or (2) when the will contains a misdescription of the object or 
 subject, as where there is no such person or thing in existence, 
 or, if in existence, the person is not the one intended, or the thing 
 does not belong to the testator.* 
 
 1. Chambers v. Ringstaff, 6g Ala. 140; 
 Fish v. Hubbard, 21 Wend. (N. Y.) 651, 
 Peisch V. Dickson, i Mason (U. S.), 9. 
 
 A description of lands in a conveyance, 
 by sections, township, and range, without 
 mention of the State, county, land-dis- 
 trict, or government survey in which the 
 lands lie, may be aided by oral testimony 
 showing that when the conveyance was 
 made the grantor owned and resided on 
 l.nnds in a given county, in this State, 
 which were known by the same numbers 
 lis those employed in the conveyance. 
 Aided by such proof, and in absence of 
 proof that the grantor owned or claimed 
 other lands falling within the same de- 
 scription, it becomes the duty of the 
 court to pronounce the conveyance valid. 
 Chambers v. Ringstaff, 69 Ala. 140. 
 
 A notice of protest was in the follow- 
 ing form : 
 
 " December 23, 1871. Please take no- 
 tice that M. D. S. and C. F. A.'s note, 
 dated Be^ltimore, September 20, 1871, 
 payable ninety days after date to the 
 order of R. S. for $340, payable at Third 
 National Bank, and by you indorsed, is 
 delivered to me by the cashier of the 
 Western Bank of Baltimore for protest, 
 and the same not being paid, payment 
 thereof having been demanded and re- 
 fused, is protested, and will be returned 
 to the cashier, and that you will be held 
 liable for the payment thereof." Held, 
 that parol proof was admissible to show 
 that the note was presented on the 22d of 
 December. Reynolds v. Appleman, 41 
 Md. 615. 
 
 Where an alleged order is ambiguous, 
 upon its face, parol evidence is admissi- 
 ble to explain it. Gallagher v. Black, 
 44 Me. 99. 
 
 Where a date is written so ambigu- 
 
 535 
 
 ously that it cannot be determined, parol 
 evidence is admissible to explain it. 
 Fenderson v. Owen, 54 Me. 372. 
 
 2. Patch V. White. 117 U. S. 210; 
 Howard v. Amer., etc., Soc, 49 Me. 
 288; Wood V. White, 32 Me. 340; s. c, 
 52 Am. Dec. 654; Pickering z/. Pickering, 
 50 N. H. 349;'Tilton v. Am. B. Soc, 
 60 N. H. 377; s. c, 49 Am. Rep. 321; 
 Goodhue v. Clark, 37 N. H. 525 ; Webster 
 V. Atkinson. 4 N. H. 21; Winkley v. 
 Kairne, 32 N. H. 268; Hinckley v. 
 Thatcher, 139 Mass. 477; s. c, 52 Am. 
 Rep. 719; Cleverly v. Cleverly, 124 Mass. 
 314; Warren v. Gregg, 116 Mass. 304; 
 Bodman v. Amer. T. Soc, 9 Allen 
 (Mass.), 447; Amer. T. Soc. v. Pratt, 9 
 Allen (Mass.), 109; Wilson v. Fasket, 6 
 Mete. (Mass.) 400; Storer v. Freeman. 6 
 Mass. 440; s. c, 4 Am. Dec. 155; Stack- 
 pole V. Arnold, 11 Mass. 27; Townsend 
 V. Downer, 23 Vt. 225; Button v. Amer. 
 T. Soc, 23 Vt. 336; Brainard v. Cowdry, 
 16 Conn, i; Bond's App., 31 Conn. 183; 
 Dunham v. Averill, 45 Conn. 61; Beards- 
 ley V. Amer., etc., Soc. 45 Conn. 327; 
 Doolittle V. Blakesley, 4Day(Conn.), 265: 
 s. c, 4 Am. Dec 218; Lefevre v. Lefevre, 
 59 N. Y. 434; St. Luke's Home, etc., v. 
 Association, etc., 52 N. Y. 191; White v. 
 Hicks, 33 N. Y. 383; Jackson v. Sill, 11 
 Johns. (N. Y.) 201; s. c, 6 Am. Dec. 363; 
 Mann v. Mann, i Johns. Ch. (N. Y.) 231; 
 s. c, 7 Am. Dec. 416; Smith v. Smith, i 
 Edw. Ch. (N. ,Y.) 189; Doe v. Roe, i 
 Wend. (N. Y.) 541; Connolly v. Pardon, 
 I Paige (N. Y.), 291; s. t., 19 Am. Dec. 
 433; Asylum v. Emmons, 3 Bradf. Sur. 
 (N. Y.) 144; Den v. Cubberly, 12 N. J. 
 L. 208; Evans v. Griscom, 40 N. J. L. 
 549; s. c, 37 Am. Rep. 542; Hand v. 
 Hoffman, 3 Halst. (N. J.) 71; Taylor, w. 
 Tolen, 38 N. J. Eq. 91; Vernor v. Henry, 
 
Wills. 
 
 AMBIGUITY. 
 
 Wills. 
 
 3, Watts (Pa.), 385; Best v. Hammond, 55 
 Pa. St. 409; Comfort v. Mather, 2 W. &v 
 S. (Pa.) 450; s. c, 37 Am. Dec. 523; 
 .Newell's App., 24 Pa. St. 197; Brown- 
 Ifield V. Brownfield, 12 Pa. St. 136; s. c, 
 51 Am. Dec. 590; Tyson v. Tyson, 37 
 Md. 567; Mitchell v. Mitchell, 6 Md. 224; 
 Hawkins v. Garland, .76 Va. 149; o. c, 
 44 Am. Rep. 158; Richards v. Miller, 62 
 111. 417; Rutherford v. Morris, 77 III. 397; 
 Chambers v. Watson, 60 Iowa, 339; s. c, 
 46 Am. Rep. 70; Fraim v. Millison, 59 
 Ind. 123; Webster v. Morris, 28 N. W. 
 Repr. (Wis.) 353; Merrick v. Merrick, 37 
 Ohio St. 126; s. c, 41 Am. Rep. 493; 
 Black V. Hill, 32 Ohio St. 313; Edwards 
 V. Richards, Wright (Ohio), 597; Wal- 
 dron V. Waldron, 45 Mich. 350; Gilliam 
 V. Chancellor, 43 Miss. 437; Riggs v. 
 Myers, 20 Mo. 239; Lowe v. Carter, 2 
 Jones Eq. (N. Car.) 377; Clarke u. Cot- 
 ton, 2 Dev. Eq. (N. Car.) 301; s. c, 24 
 Am. Dec. 279; Patterson v. Leith, 2 Hill 
 Ch. (S. Car;) 16; Tudor v. Terrel, 2 Dana 
 (Ky.), 47; Breckinridge v. Duncan, 2 A. 
 K. Marsh. (Ky.) 50; s. c, 12 Am. Dec. 
 359; Haydon v. Ewing, i B. Mon. (Ky.) 
 113; /« re Kilvert's Trust, L. R. 12 Eq. 
 183; 7 Ch. 170; Gordon v. Gordon, L. R. 
 5 H. L. 254; Hensman v. Fryer, L. R. 
 2 Eq. 627; 3 Ch. 420; In «,De Rosaz, 
 L. R. 2 C. P. 66; In re Wolverton, L. 
 R. 7 Ch. 197; In re Engle, L. R. 11 Eq. 
 578; Grant w. Grant, L. R. 5 C. P. 380, 
 727; Wells V. Wells, L. R. 18 Eq. 504; 
 Webber v. Webber, L. R. 16 Eq. 515; 
 In re Black well, L. R. 2 P. 72; In re 
 Blower, L. R. 11 Eq. 97, 6 Ch. 351; Weeds 
 V. Bristow, L. R. 2 Eq. 332. 
 
 A made a will, in which, after saying, 
 "and touching [my] worldly estate," "I 
 give, devise, and dispose of the same in 
 the following manner," he devised cer- 
 tain specific lots with the buildings there- 
 on, respectively, to each of his near 
 relations, and, amongst others, to his 
 brother H. a lot described as "lot num- 
 bered 6, in square 403, together with the 
 improvements thereon erected." He then 
 devised to his infant son as follows: 
 " the balance of my real estate, believed 
 to be and to consist in lots numbered six, 
 eight, and nine, etc.," describing a num- 
 ber of lots, but not describing lot No. 3, 
 in square 406 hereafter mentioned. 
 Held, (l) that the testator intended to 
 dispose of all his real estate, and thought 
 he had done so; (2) that in the devise to 
 H. he believed he? was giving him one of 
 his own lots; (3) that evidence might 
 properly be received to show that the 
 testator did not, and never did, own lot 
 No. 6, in square 403, which had no im- 
 provements thereon ; but did own lot No. 
 
 3, in square . 406, which had a house 
 thereon, occupied by his tenants; and 
 that this raised a latent ambiguity; and 
 that this evidence, taken in connection 
 with the context of the will, was suffi- 
 cient to show that there was an error in 
 the description, and that the lot really 
 devised was lot No. 3, in square 406. 
 Patch V. White, 117 U. S. 210. See Allen 
 V. Lyons, 2 Wash. (U. S.) 475; Riggs v. 
 Myers, 20 Mo. 239; Winkley v. Kairne, 
 32 N. H. 268. Compare YJox\.zv. Hibner, 
 55 111. 514; s. c, 8 Am. Rep. 665, and 
 note. 
 
 Where a testator devised "all interest 
 in the following described real estate to 
 W., "Sixty acres, Se. 25, toon 7; forty 
 acres, Se. 24, toon 6; Jasper County, 
 State of Iowa," held, that " Se." meant 
 "section," and should be so read, and 
 that it was competent, for the purpose of 
 applying the devise to its subject-matter, 
 to prove by parol in what township and 
 range in Jasper County the testator owned 
 60 acres of land in section 25, and in 
 what township and range he owned 40 
 acres in section 24, and that he owned no 
 other land in Jasper County. Chambers 
 V. Watson, 60 Iowa, 339; s. c, 46 Am. 
 Rep. 70. 
 
 A woman devised to her husband the 
 undivided half of certain descriptions of 
 land, referred to as "containing 1340 
 acres," and she made the devise subject 
 to a. right reserved by her grantor to 
 occupy one half of the dwelling-house 
 thereon. She devised the other undi- 
 vided half to her children. The descrip- 
 tions were according to the government 
 subdivisions, but embraced only 140 
 acres, which was only a part of 240 acres 
 actually granted to her in one Compact 
 body, and no other disposition was made 
 of the rest of this grant. The dwelling- 
 house was not upon the 140 acres devised, 
 Held, that the testator's evident intent 
 was to devise the entire 240 acres. Wal- 
 dron V. Waldron, 45 Mich. 350. 
 
 A devised his lands to B for life, in 
 the following words : "All the . . . real 
 estate I may die seized of." He owned 
 160 acres of land, and no more, one half 
 of which was in section 27 and the other 
 moiety was the east half of the northeast 
 quarter of section 28. He devised the 
 portion in section 27, by a correct de- 
 scription, to C, at the death of B, 
 charged with certain legacies, and devised 
 the portion in section 28 to D, at the 
 death of B, charged with certain legacies; 
 but by mistake in the particular descrip- 
 tion of the land devised to D, the word 
 "south" was inserted instead of " north." 
 Held, that so much of the description as 
 
 536 
 
■Wills. 
 
 AMBIGUITY. 
 
 Wills. 
 
 is erroneous should be rejected, and that 
 the land will pass to D, on the death of 
 B, by the other provisions of the will. 
 Merrick v. Merrick, 37 Ohio St. 126; s. 
 c, 41 Am. Rep. 493. Compare Judy v. 
 Gilbert, 77 Ind. 96; b. c, 40 Am. Rep. 
 289. 
 
 On a devise to B., widow, for life, and 
 her three daughters, Mary, Elizabeth, and 
 Ann. in fee, an illegitimate daughter, 
 named Elizabeth, claimed as being the 
 only Elizabeth answering the description 
 at the time of the will being made, a 
 legitimate daughter, Elizabeth, having 
 been dead six years previously. Held, 
 that parol evidence was admissible to 
 show that the testator intended his legiti- 
 mate daughter as devisee, and that he 
 did not know of her death. Doe d. 
 Thomas v. Benyon, 12 A. & E. 431. 
 
 A testator devised a house to " my 
 sister, Mary Frances Tyrwhitt Drake." 
 He afterwards gave the residue of his 
 real and personal property to three other 
 persons, and "my niece Mary Frances 
 Tyrwhitt Drake," equally to be divided 
 between them. He had no sister, but 
 only a sister-in-law, and no niece, bearing 
 exactly these names. Held, that extrinsic 
 evidence was admissible to explain the 
 ambiguity that the evidence of the solici- 
 tor as to what had been his instructions 
 to prepare the will was properly rejected, 
 md that the will was as to this fourth 
 share of the residue void for uncertainty. 
 Drake v. Drake, L. R. 8 H. L. 172. 
 
 A. devised as follows: " I give and 
 bequeath to my son Edward Fleming all 
 that dwelling-house (now in the occupa- 
 tion of my son John), during his natural 
 Sfe, and at his death to descend to my. 
 grandson, Henry Fleming, and his heirs 
 forever." The testator had two grand- 
 sons named Henry Fleming, the plaintiff, 
 who was the son of the testator's son 
 Edward, and the defendant, who was the 
 son of the testator's son John.' Held, 
 that the proof of that fact raised an am- 
 biguity in the will as to which of his two 
 grandsons the testator meant, and that 
 parol evidence was admissible to explain 
 it. Fleming «. Fleming, i H. & C. 242. 
 
 A testator appointed as one of his 
 executors Francis Courtenay Thorpe, of 
 Hampton, gentleman. There was living 
 a youth of twelve years of age to whom 
 the name and description applied. The 
 court refused to admit evidence to show 
 that the testator intended the father of 
 the youth, whose name was Francis Cor- 
 bet Thorpe. Peel, In goods of, 2 L. R. 
 P. 46. 
 
 A testator appointed his " said nephew, 
 Joseph Grant, executor" of his will. His 
 
 wife's nephew of that name had resided 
 with him for many years, and managed 
 his business. There was also living a 
 nephew (a brother's son) of the like name. 
 Both claimed probate of the will. Held, 
 that parol evidence was admissible to 
 show the relation and circumstances in 
 which the respective parties stood to the 
 testator, and the sense in which he ha- 
 bitually used the word "nephew" when 
 referring to his wife's nephew. And the 
 evidence showing that the wife's nephew 
 was the person meant, prdbate of the 
 will was decreed to him accordingly. 
 Grant v. Grant, 2 L. R. P. 8; s. c, 5 L. 
 R. C. P. 727. Compare Wells v. Wells, 
 L. R. 18 Eq. 504. 
 
 Where a legatee can be identified, a 
 misnomer will not defeat his bequest, 
 as where legacies were given to testator's 
 nephews, Harmon Baldwin and Joseph 
 Baldwin, he having a nephew Samuel 
 Harbourne Baldwin, who is usually called 
 " Harbourne," and a nephew Josiah M. 
 Baldwin, usually called "Josie;" and so 
 of partial mistakes in the titles of corpo- 
 ration legatees. Taylor v. Tolen, 38 N. 
 J. Eq. gi. 
 
 A testator left ;^6oo to the children of 
 his daughter by any other husband than 
 "Mr. Thomas Fisher, of Bridge Street, 
 Bath." At the date of the will there was 
 a Thomas Fisher living in Bridge Street, 
 Bath, who was married and had a son, 
 Henry Tom Fisher, who sometimes lived 
 with his father, and who paid his ad- 
 dresses to the daughter, and, after the 
 testator's death, married her. On the 
 question whether their child was entitled 
 to the £too, held, that evidence of the 
 above facts was admissible to show who 
 was meant by the testator. In re Wol- 
 verton, L. R. 7 Ch. 197. 
 
 Parol evidence is admissible to show 
 that by a bequest to the testator's 
 " daiighter Elizabeth," he intended an 
 informally adopted daughter, he having 
 no daughter by that name. Ex parte 
 Cahn, 3 Redf. Sur. (N. Y.) 31. 
 
 A testator bequeathed to a nephew and 
 niece by name, and then "to all and 
 every the children of my late nephew M. 
 I., and my niece E. W., share and share 
 alike. In a codicil he. referred to "the 
 legacy left to my niece E. W." The tes- 
 tator's brother M. I. had died, leaving 
 children, one of whom, M. I., having 
 had a son born in England, had gone to 
 America; and the testator knew these 
 facts, but believed that his nephew M. I. 
 was, or might be, dead. Held, that the 
 bequest was to the living nephew and 
 not the dead brother, and evidence of 
 intention otherwise was not admissible. 
 
 537 
 
Conyeyances. 
 
 AMBIGUITY. 
 
 Coiifeyances- 
 
 7. Conveyances. — In construing a deed, an ambiguity in the descrip- 
 tion of the premises conveyed may be explained by parol evidence ; 
 
 Further, that the gift was to E. W. and There was a bequest to the " Omro 
 
 not to her children. In re Ingle, L. R. 
 II Eq. 578. 
 
 Where the testator said in his will, " I 
 give to each of my namesakes, S. G. son 
 of S. G. S., S. G. son of S. G. W., S. G. 
 son of S. G. , and S. G. son of Captain J. 
 F. S., a bond of |ioooof S. S. railroad." 
 Held, extraneous evidence is admissible 
 to show that no person answering the 
 description of " S. G., son of'Captain J. 
 F. S., existed or was intended as the 
 object of the testator's bounty, but that 
 a person known to testator as " S. G., 
 son of Captain J. F. H.," was intended 
 as the object of his bounty. Hawkins v. 
 Garland, 76 Va. 149; s. c, 44 Am. Rep. 
 158. See Smith v. Smith, i Edw. Ch. 
 (N. Y.) 189; 4 Paige (N. Y.), 271; Con- 
 nolly V. Pardon, i Paige (N. Y.), 291; s. 
 c, ig Am. Dec. 433; In «Cahn, 3 Redf. 
 Sur. (N. Y.) 31; Stokeley v. Gordon, 8 
 Md. 496; Hall V. Leonard, i Pick. (Mass.) 
 27; Vernor v. Henry, 3 Watts (Pa.), 385. 
 
 Where a testator devised to his daugh- 
 ter " the south-west quarter of the north 
 half of section 14, town 8, range 2, west, 
 the remaining lands owned by me to be 
 divided between the four boys," it was 
 held, that there was no ambiguity on the 
 face of the will, the inference therefrom 
 being that he had but four sons; but on 
 proof that the testator had seven sons, 
 an ambiguity was made apparent, and, 
 being a .atent one, was explainable by 
 parol evidence. Bradley v. Rees, 113 
 111. 327. 
 
 ' So where a testator, after a specific 
 devise of land to his daughter, added, 
 immediately after, these words: "The 
 remaining lands owned by me to be 
 equally divided between the four boys," 
 and the proof showed that he had at the 
 time seven sons, four of whom were 
 minors, residing with him, and the other 
 three being men, and living in their own 
 homes, apart from the father, it was held, 
 that parol proof not only of the previous 
 facts known to the testator, and of present 
 circumstances, under which he made his 
 will, but also his declarations made at 
 the time of making the will, as well as 
 before and after, might be resorted to, to 
 remove the ambiguity, if any, and to fix 
 the objects of his bounty. Bradley v. 
 Rees, 113 111. 327. 
 
 A gift " to the Rochester, N. Y., Theo- 
 logical Seminary, and to Hamilton Theo- 
 logical Seminary, $10,000," is a gift of 
 that amount to each. Taylor v. Tolen, 
 38 -N. J. Eq. 91. 
 
 and Algoma Cemetery Association." 
 There was no such association, but there 
 was an ' ' Omro Cemetery Association" 
 and "The Union Cemetery Association," 
 in the same place. Extrinsic evidence 
 was admitted, and the latter association 
 held to be the object of the bounty. 
 Webster v. Morris, 28 N. W. Repr. (Wis.) 
 
 353- 
 
 A testator by his will gave the residue 
 of his estate " equally to the Authorized 
 Agents of the Home and Foreign Mis- 
 sionary Societies to aid in propagating 
 the Holy religion of Jesus Christ." Held, 
 that extrinsic evidence of the facts known 
 to the testator at the time he executed 
 the will, the names by which he was ac- 
 customed to call the missionary societies, 
 or by which they were usually called and 
 known in the religious society with which 
 he worshipped, the interest shown by 
 him in any particular missionary so- 
 ciety, and the contributions which he 
 made for missionary purposes, was ad- 
 missible to aid in identifying the socie- 
 ties intended by the will. Hinckley v. 
 Thatcher, 139 Mass. 477; s. c, 52 Am. 
 Rep. 719. 
 
 A legacy being provided for "the 
 Bible Society," parol evidence is compe- 
 tent to show what society was meant, 
 and evidence that an annual contribution 
 was taken for one of them in the testa- 
 tor's church is competent. Tilton v. Am. 
 Bible Soc, 60 N. H. 377; s. c, 49 Am. 
 Rep. 321. See Button w. Amer. T. Soc, 
 23 Vt. 336; Jackson v. Goes, 13 Johns. 
 (N. Y.) 518; s. c, 7 Am. Dec. 399; 
 Prjtchard v. Hicks, i Paige (N.Y.), 270; 
 Wusthoff v. Dracourt, 3 Watts (Pa.), 240; 
 Gass V'. Ross, 3 Sneed (Tenn.), 211; Pin- 
 son V. Ivey, I Yerg. (Tenn,) 296. 
 
 In 1868 a testatrix bequeathed a sum to 
 the treasurer for the time being of the 
 fund for the relief of the clergy of the 
 diocese of W. Said diocese in 1868 in- 
 cluded the archdeaconries of W. and C, 
 but until 1837 included only the arch- 
 deaconry of W. Until 1837 there was a 
 society of the diocese for the above pur- 
 pose, and this society, when the diocese 
 was enlarged, was restricted to the arch- 
 deaconry of W. There was a similar so- 
 ciety in the archdeaconry of C. The 
 testatrix and her parents had contributed 
 to the sopiety in the archdeaconry of W., 
 but not to the other society. Held, that 
 the sum must be paid to the W. society. 
 In re Kilvert's Trusts, L. R. 7 Ch. 170; 
 s. c, L. R. 12 Eq. 183. 
 
 53» 
 
Conveyances. 
 
 AMBIGUITY. 
 
 Conveyances. 
 
 and where tiie description is by metes and bounds, evidence of the 
 situation and locality of the premises, and of their identity, accord- 
 ing to the description in the conveyance, is admissible.* 
 
 1. Baldwin v. Shannon, 43 N. J. L. 
 596; Den V. Cubberly, 12 N. J. L. 308; 
 Hartwell v. Camman, 10 N. J. Eq. 128; 
 s. t., 64 Am. Dec. 448; Koch v. Dunkel, 
 90 Pa. St. 264; Iron Ciiy, etc., College 
 V. Kerr, 3 Brews. (Pa.) 196; Lovejoy v. 
 Lovett, 124 Mass. 270; Thornell v. Brock- 
 ton, 141 Mass. 151; Almy v. Daniels, 4 
 Atl. Repr. (R. I.) 754; Hall v. Davis, 36 
 N. H. 569; Pierce v Brew, 43 Vt. 292; 
 Hotchkiss V. Barnes, 34 Conn. 27; Ely 
 V. Adams, 19 Johns. (N. Y.) 313; Com- 
 missioners V. Presbyterian Church, 30 
 Kans. 620; Schuetze v. Bailey. 40 Mo. 
 69; McPike V. AUman, 53 Mo. 551; 
 Shewalter v. Pirner, 55 Mo. 218; Wel- 
 lons V. Jordan, 83 N. Car. 371; Farmer v. 
 Batts, 83 N. Car. 387; Steadman v. Tay- 
 lor, 77 N. Car. 134; Edwards v. Tipton, 
 77 N. Car. 222; Sikes v. Shows, 74 Ala. 
 382; Humes v. Bernstein, 72 Ala. 546; 
 Clements v. Pearce, 63 Ala. 284; Jen- 
 kins V. Cooper, 50 Ala. 419; Baucum v. 
 Geiij-ge, 65 Ala. 259; Meyer v. Mitchell, 
 75 Ala. 475; Doe v. Jackson, i Smed. & 
 M; (Miss.) 494; McLeroy v. Duckworth, 
 13 La. Ann. 410; Terry w. Berry, 13 Nev. 
 514; Wofford V. McKinna, 23 Tex. 44; s. 
 c. 76 Am. Dec. 53; Swayne v. Vance, 
 28 Ark. 282; Cato v. Stewart, 28 Ark. 
 146; Black V. Hill, 32 Ohio St. 313; Bar- 
 ton V. Anderson, 104 Ind. 578; Lyman 
 V. Gedney, 114 111. 388; McLennan v. 
 Johnston, 60 111. 306; Cassitt v. Hobbs, 
 56 111. 231; Clark V. Powers, 45 111. 283; 
 Bybee v. Hageman, 66 111. 519; Billings 
 V. Kankakee Coal Co., 67 111. 489; Fisher 
 V. Quackenbush. 83 111. 310; Harris v. 
 Doe, 4 Blackf. (Ind.) 369; Beal v. Blair, 
 33 Iowa, 318; Lloyd v. Bunce, 41 Iowa, 
 660; Austrian w Davidson, 21 Minn. 117; 
 Morgan v. Burrows, 45 Wis. 211; Begg 
 V. Begg, 56 Wis. 534; Raymond v. Coffey, 
 
 5 Oregon, 132; Piper v. True, 36 Cal. 
 607; Armijo v. N. Mex. Town Co., 5 Pac. 
 Repr. (N. Mex.) 709; Blair v. Bruns, 8 
 Pac. Repr. (Colo.) 569; Deery v. Cray, 
 10 Wall. (U. S.) 263; B. of U. S. V. Dunn, 
 
 6 Pet. (U. S.) 51; Peisch v. Dickson, I 
 Mason (U. S.), 9; Cleaveland v. Smith, 2 
 Story (U. S.), 278, 287. 
 
 Where a deed is ambiguous as to the 
 quantity and interest intended to be con- 
 veyed, it presents a question of law to be 
 determined by the court, but where the 
 locus of the property is called in question 
 by a suggestion outside of the instru- 
 ment of conveyance, it is competent to 
 introduce parol evidence to identify it. 
 Cato V. Stewart, 28 Ark. 146. 
 
 Evidence of practical location is permis- 
 sible where there is an ambiguity in the 
 description of premises granted. Bald- 
 win V. Shannon, 43 N. J. L. 596. 
 
 When a tract of land is described in a 
 conveyance as the "Douglass Gold Mine 
 in Talladega Co., Alabama," without 
 other words of description, parol evi- 
 dence is admissible to identify it as the 
 land sued for, which was once bought at 
 a sheriff's sale by one Douglass, under 
 whom plaintiff claims by mesne convey- 
 ances, and to whom it was conveyed by 
 deed, in which it was described by its 
 govern ment numbers. Baucum v. George, 
 65 Ala. 259. 
 
 At the, trial of a writ of entry, if the 
 rights of the parties depend upon the con- 
 struction of a deed, in which one of the 
 monuments is described as a lane run- 
 ning in a certain direction, and it appears 
 that there are two lanes running in that 
 direction, each of which is consistent with 
 some parts of the description in the deed, 
 and each is inconsistent with other parts, 
 oral evidence is admissible to show which 
 lane was intended as the monument, and, 
 if conflicting, is properly submitted to the 
 jury. Thornell v. Brockton, 141 Mass. 
 
 151. 
 
 A contract for the sale of land, de- 
 scribed therein as " sixty acres Comida 
 and Cone bottom, also ten acres hillside 
 woodland adjoining the Mitchell tract," 
 unaided by extraneous evidence of iden- 
 tification of the land intended to be sold, 
 is void for uncertainty. It is, however, 
 competent to show by parol evidence, in 
 aid of such contract, that, in pursuance 
 of its terms, the land intended to be sold 
 was pointed out and designated by the 
 parties, and that the purchaser was placed 
 in possession thereof; and when thus 
 aided, the ambiguity is cured, and the 
 land identified by the acts and conduct of 
 the parties. Meyer v. Mitchell, 75 Ala, 
 
 475- 
 
 When the premises conveyed are de- 
 scribed in the deed as "Lot No. 2, of 
 square No. 8, in the town of R,, being 
 twenty feet in front, and running back 
 one hundred and ten feet, " and it is shown 
 that the lot is in fact thirty feet front,' 
 parol evidence is admissible to show that 
 the part sold and intended to be con- 
 veyed, and of which possession was de- 
 livered to the grantee, was the twenty 
 feet front on the east side of the lot. 
 Sikes V. Shows, 74 Ala. 382. 
 
 A deed for land described as ' ' part of 
 
 589 
 
CanTeyances, 
 
 AMBIGUITY. 
 
 Conyeyances. 
 
 lot number 70, fronting on Gallatin street 
 50 feet, and extending eastwardly 73 
 feet," being further described as "the 
 property of J. & Co., the dimensions 
 of lot 70 being shown, extrinsic evidence 
 would be admissible to show that J. & 
 Co. only owned a part of said lot cor- 
 responding with the dimensions given in 
 the deed, and to identify that portion. 
 Humes v. Bernstein, 72 Ala. 546. 
 
 The Wyandotte City Company laid out 
 the city of Wyandotte. On the plat made 
 and filed appear three lots marked "church 
 lots." All the tracts dedicated as church 
 lots, except the one in controversy, were 
 conveyed to other churches. On the rec- 
 ords of the company, and at a date sub- 
 sequent to those of the resolutions grant- 
 ing the other lots, is a resolution that "a 
 church lot be appropriated to the Pres- 
 byterian church." This resolution ap- 
 pears by the records to have been made 
 on the application of Mr. Goodrich, a mem- 
 ber of that church. Subsequent applica- 
 tion by parties representing other churches 
 for this lot were refused on the ground, as 
 stated by the officers of the company, that 
 it had been reserved and appropriated to 
 the Presbyterian church. A paper solic- 
 iting subscriptions for the building of a 
 church was circulated by the pastor of 
 this church, and subscriptions taken. This 
 lot was spoken of as the site of the build- 
 ing, and plans discussed with reference to 
 the peculiar slope of the ground. No con- 
 ditions appear on the record it^the above 
 resolution granting a church lot to the 
 Presbyterian church. The tract was never 
 listed for taxation. Held, that a finding 
 of the trial court that this lot was uncon- 
 ditionally appropriated and reserved to 
 the Presbyterian church must be sus- 
 tained. Commissioners v. Presbyterian 
 Church, 30 Kans. 620. 
 
 Where there is a latent ambiguity in 
 the description in a conveyance, as an 
 omission to refer to any meridian, or the 
 wrong number of the township, parol evi- 
 dence is admissible to correct it. Dough- 
 erty V. Purdy, 18 111. 206; Terry v. Berry, 
 13 Nev. 514; Bybee v. Hageman, 66 111. 
 519; Billings V. Kankakee Coal Co., 67 
 III. 489. Compare Judy v. Gilbert, 77 
 Ind. 96; s. c, 40 Am. Rep. 289. 
 
 The defendant agreed in writing to 
 convey to the plaintiff "a certain parcel 
 of real estate situated in D., known as 
 the A. farm, and bounded as follows, 
 namely, as is bounded in a deed from" 
 a person named to the defendant. On a 
 bill in equity for specific performance, it 
 appeared that the deed to the defendant 
 included seven parcels of land separately 
 described, none of which was designated 
 
 in the deed as the A. farm; that A. died, 
 many years before, seized of land which 
 included six of the seven parcels; that 
 three of these formed part of his home- 
 stead, and the other three were about a 
 mile off, and that the seventh parcel was 
 not shown to have belonged to A. ; that 
 the deed to the defendant was made at 
 the request of the plaintiiif, and for his 
 benefit, he paying part of the considera- 
 tion; and that the defendant paid the re- 
 mainder of the consideration, and orally 
 promised the plaintiff, upon the payment 
 of this sum and interest, to convey the 
 premises to him. and to give him a bond 
 for a deed. Held, that these facts were 
 admissible in evidence, and that the de- 
 fendant was bound to convey all the land 
 conveyed to him by the deed of the third 
 person. C. conveyed to J. "a tract of 
 land called the T. lot, and described in 
 two deeds, one from A. to S., daied June 
 23. 1862, and recorded book 656, page 
 145. the other in a deed from said S. to 
 said A., and dated October 17, 1862, and 
 recorded book 665, page 564." At the 
 time of the conveyance. C. owned six 
 acres of the T. land, which was wild 
 land. It had been conveyed to her in 
 two parcels, which abutted on each other, 
 with lio fence between them. C. 's title 
 to the first parcel was by deed from A. to- 
 S., dated June 23, 1862, and recorded 
 book 656, page 145, and by deed from S. 
 to C, dated October 17, 1862, and re- 
 corded book 655, page 564. C.'s title to 
 the second parcel was by deed from A. to 
 C, dated June 23, 1862, and recorded 
 book 656, page 146. Held, that both 
 parcels passed by the deed of C. to J. 
 Aldrich v. Aldrich, 135 Mass. 153. 
 
 A sheriff's deed which so vaguely de- 
 scribes the land that it cannot be ascer- 
 tained, from its face, which of two par- 
 cels in which the judgment debtor had 
 an interest was intended to be sold, is 
 void for uncertainty. Mason v. White, 
 II Barb. (N. Y.) 173. See Bartlett v. 
 Judd, 21 N. Y. 200; s. c, 78 Am. Dec. 
 131- 
 
 If the description in the conveyance is 
 .equally applicable to two different tracts, 
 or interests in the same tract, parol evi- 
 dence is admissible to explain which was 
 intended. Fisher v. Quackenbush, 83 111. 
 310. 
 
 The property agreed to be conveyed 
 was described only as "a house on 
 Church Street." Parol evidence was ad- 
 mitted showing the circumstances of 
 possession, ownership, the situation of 
 the parties, their relation as to each 
 other and to the property, "as they were 
 when the negotiations took place and the 
 
 540 
 
Contracts. 
 
 AMBIGUITY. 
 
 Contracts. 
 
 8. Contracts. — Where a written contract is ambiguous in its mean- 
 ing, evidence of what is said and done at the time of its execution 
 is competent, not to add to or change it, but to explain it. There- 
 fore all evidence relating to a custom of any kind of trade, trade- 
 marks, usages, entries, or abbreviations is admissible when the 
 ambiguity is occasioned by a reference to such terms.^ 
 
 writing was made." Mead v. Parker, 115 
 Mass. 413; s. c, 15 Am. Rep. no; Hur- 
 ley V. Brown, g8 Mass. 545. 
 
 Where A executed a mortgage to B, 
 embracing four different parcels or clus- 
 ters of land, and in respect to the first 
 three of these there was a description of 
 land, or a reference to deeds, which were 
 designated, sufficient 10 enable one to 
 ascertain the boundaries of a larger 
 quantity of land originally owned by A, 
 from which he had conveyed certain por- 
 tions or lots, but in respect to the fourth 
 parcel the land was described as "all the 
 land owned by me in my New City, so 
 called, in said L. ," which description in- 
 cluded certain lots previously conveyed 
 to C and D, but the deeds of which had 
 not been recorded at the time the mort- 
 gage was recorded, held, that the inten- 
 tion of the mortgagor was to include only 
 such land as he owned at the time of the 
 execution of the mortgage, and did not 
 include the lots previously conveyed to 
 C. and D. Fitzgerald v. Libby, 7 N. 
 East. Repr. (Mass.) 917. 
 
 Where land is described on a tax dupli- 
 cate and in a tax deed in abbreviafed 
 terms, parol evidence is admissible to 
 explain, consistently with such terms, as 
 to what land they refer. Barton v. An- 
 derson, 104 Ind. 578. 
 
 In an action .to recover on an insur- 
 ance policy for a loss sustained by the 
 burning of a certain barn, where the de- 
 fence set up was breach of warranty on 
 plaintiff's part in representing that the 
 title to the property was in himself when 
 he had no title thereto, and plaintiff, to 
 make out his title, introduced a bill of 
 sale as follows: "For a valuable con- 
 sideration the Spring Valley Water-works 
 grants and conveys unto John Claffey 
 the Wolfe houses, but reserves the right 
 to use the same until the first day of 
 November, A.D. 1877;" it appearing on 
 the trial that the barn insured, together 
 with other houses,, were built by a Mr. 
 Wolfe, — held, the fact of the word 
 "houses" being used in the bill of sale 
 makes it plain that more than one house 
 was by it conveyed to the plaintiff; and 
 such an ambiguity existed in that instru- 
 ment as warranted an explanation by 
 parol testimony to determine whether or 
 
 not the term "the Wolfe houses" in- 
 cluded the barn in question. Claffey v. 
 Hartford-Ins. Co., 8 Pac. Repr. (Cal.) 711. 
 
 Where properly is conveyed to a per- 
 son and there are two persons answering 
 to the name, parol evidence is admissible 
 to show which was intended. Begg w. 
 Begg, 56 Wis. 534; Beggzi. Anderson, 64 
 Wis. 207; Simpson v. Dix, 131 Mass. 179; 
 Grant v. Grant. L. R. 5 C. P. 380. 727. 
 
 1. Knick V. Knick, 75 Va. 12; Talbott 
 V. Richmond, etc., R. Co., 31 Gratt. 
 (Va.) 685; Calbreath v. Virginia, etc., 
 Co., 22 Gratt. (Va.) 697; Warfield v. 
 Booth. 33 Md. 63; Smith v. Farmers' 
 Ins. Co.. 89 Pa. St. 287; McMasters i/. 
 Penna. R. Co., 69 Pa. St. 374; Brown v. 
 Brooks, 25 Pa. St. 210; Willis v. Fernald, 
 33 N. J. L. 206; Suffern v. Butler, 21 N. 
 J. Eq. 410; N. J. Zinc Co. v. Baston, 
 etc., Co , 15 N J. Eq. 418; Collender v. 
 Dinsmore, 55 N. Y. 200; s. c, 62 Am. 
 Dec. 130; Field j;. Munson, 47 N. Y. 221; 
 Dana v. Fiedler, 12 N. Y. 40; Harris 
 V. Rathbun, 2 Abb. Dec. (N. Y.) 326; 
 Arthur v. Roberts, 60 Barb. (N. Y.) 580; 
 Hewlett V. Howlett, 56 Barb. (N. Y.) 467; 
 Stroud V. Frith, 11 Barb. (N. Y.) 300; 
 Goodrich v. Stevens, 5 Lans. (N. Y.) 230; 
 De Wolf V. Crandall, i Sweeny (N. Y.), 
 556; Collins V. DriscoU. 34 Conn. 43; 
 Hatch V. Douglas, 48 Conn. 116; s. c, 
 40 Am. Rep. 154; Keller v. Webb, 125 
 Mass. 88; Dudley v. Vose, 114 Mass. 34; 
 Sweet V. Shumway, 102 Mass. 365 ; Page 
 V. Cole. 120 Mass. 37; Stoops v. Smith, 
 100 Mass. 63; Eaton v. Smith, 20 Pick. 
 (Mass.) 150; Proctor v. Hartigan, 139 
 Mass. 554; Kinney v. Flynn, 2 R. J. 319; 
 Farmers', etc.. Bank v. Day, 13 Vt. 36; 
 Lancey v. Phoenix Ins. Co.. 56 Me. 562; 
 Callahan v. Stanley, 57 Cal. 476; John- 
 son V. N. W. Ins. Co., 39 Wis. 88; Ban- 
 croft V. Grovor, 23 Wis. 463; Washing- 
 ton Ins. Co. K. St. Mary's Sem.,.52 Mo. 
 480; Quarry Co. v. Clements, 38 Ohio 
 St. 587; s. c, 43 Am. Rep. 442; Ins. Co. 
 V. Thorp. 22 Mich. 146; Des Moines v. 
 Hinkley, 62 Iowa. 637; Walrathw. Whitte- 
 kind, 26 Kans. 482; Lyon v. Lenon, 106 
 Ind. 567; Martindale v. Parsons, 98 Ind. 
 174; Lonergan v. Stewart, 55 111. 44; 
 Adams Ex. Co. v. Boskowitz, 107 111. 660; 
 Allan V. Comstock, 17 Ga. 554; Boykin v. 
 Bank, 72 Ala. 263; s. c, 47 Am. Rep. 
 
 541 
 
Contracts. 
 
 AMBIGJJITY. 
 
 Contraots. 
 
 408; Jones v.- Anderson, 76 Ala. 427; 
 Highiower v. MauU, 50 Ala. 495; Hite v. 
 State, 9 Yerg. (Tenn.) 357; Bryan v. 
 Harrison, 76 N. Car. 360; Richards v. 
 Schiegelmich, 65 N. Car. 151; Dunkarti'. 
 Rinehart, 89 N. Car, 354; Craig v. Per- 
 vis, 14 Rich. Eq. (S. Car.) 150; Goddard 
 -V. Bulow, I N.&McC. (S. Car.) 45; s.c, 
 g Am. Dec. 663 ; Stewart v. Smith, 59 
 Tenn. 231; Hueskez/. Broussard, 55 Tex. 
 201; Ullman v. Babcock, 63 Tex. 68; 
 Donley v. Tindall, 32 Tex. 43; Perry v. 
 Smith, 34 Tex. 277; Brauns v. Stearns, I 
 Oregon, 367; West v. Smith, loi U. S. 
 263; AtlaAic R. Co. v. Bank, 19 Wall. 
 (IJ. S.) 548; Robinson v. U. S., 13 Wall. 
 (U. S.) 363; Salmon Falls Co. v. God- 
 dard, 14 How. (U. S.) 446; Bradley v. 
 Washington, etc., Co. 13 Pet. (U. S.) 8g; 
 Rhoder v. Cleveland, etc., Co. 17 Fed. 
 Repr. 426; Ridgway v. Wharton, L. R. 
 6 H. L. 238; Bauman o. James, L. R. 3 
 Ch. 508; Long V. Millar, L. R. 4 C. P. 
 450; Cave V. Hastings, L. R. 7 Q. B. 125 ; 
 Shardlow v. Cotterell, L. R. 18 Ch. 28, 
 20. Ch. gc See cases cited ante, p. 530. 
 
 Where- a contract concerning a partic- 
 ular business is ambiguous, it will be 
 presumed that it was made with reference 
 to the ordinary course of such business, 
 and evidence showing such course is ad- 
 missible. Lyon V. Lenon, 106 Ind. 567; 
 Lonergan v. Stewart, 55 111. 44; Johnson 
 ■u. Ins., Co., 39 Wis. 87; McMasters. v. 
 Penna. R. Co., 6g Pa. St. 374; Brown v. 
 Brooks, 25 Pa. St. 210; Page v. Cole, 120 
 Mass. 37; Collender I/. Dinsmore, 55 N. 
 Y. 200; Allan v. Comstock, 17 Ga. 554; 
 Collins V. Driscoll, 34 Conn. 43; Robin- 
 son w. U. S., 13 Wall. (U. S.) 363. 
 
 Where a clause in the specifications, 
 the basis of a building contract, recites 
 that " the entire walls of the building, 
 inside and outside, are to be painted," 
 and it is claimed and denied that the 
 meaning is that the plaster as well as the 
 wood-work is to be painted, and an ex- 
 pert testifies that the meaning of the 
 clause? would "depend on the conversa- 
 tion," the language of the clause is suffi- 
 ciently ambiguous to warrant the admis- 
 sion of extraneous evidence to explain its 
 meaning. Beason v. Kurz, 29 N. W. 
 Repr. (Wis.) 230. 
 
 Negotiable Instruments, — In a suit 
 against one not a party to a promissory 
 note which bore eight per cent interest, 
 but who signed the following indorse- 
 ment thereon: " Accepted, payable nine- 
 ty days from January 13, 1870, with in- 
 terest at ten per cent per annum," the 
 petition alleged that the plaintiff, relying 
 on the acceptance and assumption of 
 
 payment, released the* original maker. 
 Held, the true meaning of the indorse, 
 ment being, from the language used, 
 doubtful, the time of payment being 
 changed and the rate of interest increased, 
 parol evidence would have been admis- 
 sible to explain whether the intention of 
 the parties was to create an original cori- 
 tract or a guaranty of payment. Hueske' 
 V. Broussard, 55 Tex. 201. 
 
 It was held that these words in a note, 
 "with interest at the rate of one M. per 
 centum," could be explained by parol tes- 
 timony, showing that the letter "M." 
 meant "mill." United States v. Hardy- 
 man, 13 Pet. (U. S.) 178. 
 
 An acknowledgment of indebtedness 
 in these letters and words, "I. O. U. 
 the sum of f 160, which I shall pay on 
 demand to you." It was held that parol 
 evidence was admissible to show the per- 
 son to whom it was addressed. Kinney 
 V. Flynn, 2 R. I. 319. 
 
 A promissory note payable "seventy- 
 five after date," negotiable and pay- 
 able in bank, construed to be payable 
 seventy-five days after date; and parol 
 evidence was held admissible, in aid of 
 the evident omission, showing the char- 
 acter of negotiable paper, as to length of 
 time of maturity, which the banks in the 
 city would accept. Boykin v. Bank, 72 
 Ala. 263; s. c, 47 Am. Rep. 408. 
 
 In action on a sealed note, signed by 
 three makers, in the following words: 
 " One day after date we, or either of us, 
 promise to pay six hundred ninety-eight 
 dollars and eighty-nine cents, with' in- 
 terest annually, for value received of him, 
 as witness we set our hands and seals, 
 September 7, 1864," parol testimony may 
 be introduced to show who was the payee. 
 Barkley u. Tarrant, 20 S. Car. 574; s. 
 c, 47 Am. Rep. 853. 
 
 There was a mortgage on lot 13 to 
 secure a series, of five notes of |8o each, 
 one of which became due each year dur- 
 ing a, period of five years, and a similar 
 mortgage on lot 14 by the same person 
 to the same creditor, of the same date, 
 to secure another series of five notes pre- 
 cisely like the <first series. P. took a con- 
 veyance of both lots, witlj a clause there- 
 in, thus: " Subject to a mortgage, dated 
 February ist, 1873, on each lot, to secure 
 five notes for $80 each, the first due Feb- 
 ruary 1st, 1874, and annually thereafter, 
 the first with ten per cent interest, the 
 others with six per cent interest, all of 
 which the grantee, by the acceptance of 
 this deed, assumes and agrees to pay." 
 It appeared that P. had paid the first five 
 iiotes presented to him, being the two 
 
 543 
 
Contracts, 
 
 AMBIGUITY. 
 
 Contracts. 
 
 Negotiable Instruments — Continued. 
 first due charged on lot 13, and the three 
 first due charged on lot 14. Held, that 
 the written contract of P. to pay, above 
 recited, was ambiguous as to whether P. 
 ■was to pay all the notes or only five of 
 them, and therefore, to aid in construing 
 it, parol evidence was admissible to prove 
 that his grantor represented to him, when 
 he purchased, that there were only five 
 notes secured on both lots, and that these 
 only he agreed to pay, having no knowl- 
 edge that there were more. Held, also, 
 that P., having paid as above, was not 
 liable to any personal judgment, though a 
 foreclosure for the unpaid notes was 
 proper. Martindale v. Parsons, 98 Ind. 
 
 174- 
 
 Clerical Errors. — A blank receipt of 
 the United States Express Co. for 
 goods to be forwarded was changed 
 by erasing the words " United States" 
 and inserting over the same the word 
 "Adams," and signed by the agent of 
 the Adams Express Co., which com- 
 pany received the goods described in the 
 receipt, but the clause in the receipt as 
 to the limitation of the company's liabil- 
 ity was left unchanged, so that it read, 
 "the United States Express Co. are not 
 to be held liable," etc. Held, that the 
 law, in the absence of proof dehors the 
 receipt, would not determine whether 
 such limitation clause related to the 
 Adams or the United States Express Co., 
 and that the true intent of the parties giv- 
 ing or receiving such receipt must be 
 determined from circumstances to be 
 proved. Adams Ex. Co. v. Boskowitz, 
 107 111. 660. 
 
 In an action to recover the price of 
 •certain manufactured goods, the words, 
 "Please send us pice of counter-screen 
 like draught," and signed by the defend- 
 ant, do not constitute a valid written or- 
 der ; and a case of incurable uncertainty 
 being presented, it will not be submitted 
 to the jury to determine whether the let- 
 ters "pice" mean "piece" or "price." 
 Cheney-Bigelow Wire Works v. Sorrell, 
 S N. Eastern Repr. (Mass.) 332. 
 
 Technical Words. — Where, under the 
 signature of an attorney to a receipt 
 given by him to his client for a claim 
 left with him for collection, a memoran- 
 dum in the attorney's handwriting is 
 made in these words, "I collect for 5 
 per cent when not litigated, 10 per 
 cent when litigated, on the amount re- 
 covered," held, that as the word "re- 
 covered " is as apt to express the idea of 
 money realized as judgment obtained, 
 the memorandum is open to explanation 
 
 by parol proof. Gunn v. Clendenin, 68 
 Ala. 294. 
 
 The meaning of words in a particular 
 part of the country, or among certain 
 classes of men, may be shown. Thomp- 
 son V. Sloan, 23 Wend. (N. Y.) 21; o. c, 
 35 Am. De/:. 546; Thorington v. Smith, 
 8 Wall. (U. S.) i; Sexton v. Windell, 23 
 Gratt. (Va.) 534. 
 
 In an action on a written contract to 
 furnish stone for a county bridge, to be 
 paid for "at $4.50 per perch," the con- 
 tract was silent as to the number of cu- 
 bic feet in a perch, and the evidence of 
 the usage of the trade failed to show 
 there was any uniform rule on the sub- 
 ject, such evidence being conflicting as 
 to whether 16 J or 25 cubic feet made a 
 perch. Held, that upon this state of 
 proof, and in the absence of a statutory 
 provision defining the quantity in a perch 
 of masonry, the negotiations of the par- 
 ties, in which it was verbally agreed that 
 the stone was to be furnished at eighteen 
 cents per cubic foot, and that the attor- 
 ney who wrote the contract, of his, own 
 motion, expressed this agreement in the 
 written contract, by converting the feet 
 into perch of 25 feet each, at the agreed 
 rate per foot, are admissible. Such evi- 
 dence does not vary the terms of the 
 written contract, but enables the court to 
 construe it in the sense intended by the 
 parties. Quarry Co. v. Clements, 38 
 Ohio St. 587; s. c, 43 Am. Rep. 442. 
 
 So where there was a sale, by written 
 contract, of "winter strained lamp-oil," 
 equal to a sample exhibited, the proof 
 showed there were two kinds of such oil, 
 one sperm-oil, the other whale-oil, the 
 latter of which was inferior in quality. 
 Evidence was held admissible to show 
 that, in conversation at the time the con- 
 tract was made, this was explained to the 
 purchaser, and that he was then informed 
 that it was not sperm-oil he was selling. 
 Hart V. Hammett, 18 Vt. 127. 
 
 The plaintiffs agreed to sell to the de- 
 fendants a water-wheel "and place the 
 same in position," but the defendants re- 
 fused payment upon the ground that the 
 wheel had not been properly placed and 
 did not. in fact, perform the work stipu- 
 lated for. Held, that the term " placed 
 in position" was so indefinite that the 
 defendent was at liberty to show what 
 was meant thereby; the writing, by such 
 parol evidence, not being added to or 
 varied, but only rendered intelligible. 
 Harris v. Moore, 10 Ontario App. 10. 
 
 By written contract, S. agreed to saw 
 lumber for H. "at the price of two dol- 
 
 543 
 
Contracts. 
 
 AMBIGUITY. 
 
 Contracts. 
 
 Technical Words — Continued. 
 lars per thousand feet," without indicat- 
 ing the rule or mode by which the lumber 
 should be measured. At the time the 
 contract was made there existed two 
 rules or modes of measurement, well 
 known and understood by those engaged 
 in the business of sawing lumber, and 
 differing in results; one being to meas- 
 ure the logs before sawing them, and 
 then, by calculation, to ascertain what 
 quantity of lumber they would produce 
 when sawed into inch boards; and the 
 other, to estimate the lumber by actual 
 measurement after sawing. Held, that 
 the words, "at the price of two dollars 
 per thousand feet," created a latent am- 
 biguity in the contract, and that, in an 
 action on the contract, parol evidence 
 was admissible to show the rule or mode 
 of measurement in reference to which the 
 parties contracted. Smith v. Aikin, 75 
 Ala. 209. 
 
 In a written contract between a whole- 
 sale house and a customer for the pur- 
 chase of specific articles, the following 
 language occurred descriptive of the thing 
 bought: " 15 bbls. T. J. Monarch $2.50, 
 1880, laid in Laredo. direct from distillery, 
 same as ganger leaves it." Held, it was 
 competent to show by parol that it de- 
 scribed fifteen barrels of whisky of the 
 T. J. Monarch brand, manufactured in 
 1880, at the price of $2.50 per gallon. 
 Ullman v.y Babcock, 63 Tex. 68. 
 
 Parol evidence is admissible to explain 
 the meaning, among men engaged in the 
 timber business, of the words, "hewn 
 timber, to average one hundred and 
 twenty feet, and to class B No. 1 good," 
 as used in a written contract, and to show 
 that the terms are applied only to square 
 timber, and do not include timber hewn 
 octagonally for use as spars. Jones v.j 
 Anderson. 76 Ala. 427. 
 
 The plaintiff's agent at G. shipped two 
 carloads of shingles on defendants' cars. 
 The shipping bill was in the usual form, 
 and requested defendants to receive the 
 undermentioned property, etc., addressed 
 to N. (the plaintiff), Wyoming, to be 
 sent subject to their tariff, etc. Then, 
 in the appropriate columns, followed the 
 description of a carload of shingles, 
 giving the number of the car, etc. "Then 
 under this were the words, " To Henry 
 James, Mitchell," and then another car- 
 load of shingles was described. Parol 
 evidence was admitted at the trial to show 
 that the meaning of the shipping bill was 
 that the first-named carload was to go to 
 the plaintiff at Wyoming, and the other 
 to Henry James at Mitchell, and that 
 
 the agent so told the defendants' station 
 agent when shipping the goods. Held, 
 that the evidence was properly admitted. 
 Dyment v. Northern, etc., R. Co., 11 
 Ontario Rep. C. P. Div. 343. 
 
 A contract wherein the vendor agrees 
 to sell to the vendee "any of my black- 
 walnut trees, not exceeding fifteen in num- 
 ber, that will girth eight feet six inches in 
 circumference and under ten feet, at two 
 dollars each; and all trees measuring ten 
 feet in circumference and upwards, at two 
 dollars and a half each, " giving the right 
 of way across the vendor's land to fell 
 and remove the timber, is sufficiently defi- 
 nite to admit parol proof of the property 
 sold. Where the plaintiff vendee brought 
 an action for specific performance against 
 the vendor and those to whom he subse- 
 quently contracted to convey the land 
 whereon the trees were standing, it was 
 held competent to inquire whether the 
 vendor had a tract of land on which such 
 trees were to be found; and if he had, the 
 identity of the trees could be ascertained 
 by the terms of description in the con- 
 tract. If there were more than fifteen 
 such trees on the land, the contract was 
 ineffectual to pass title to any, on ac- 
 count of the uncertainty as to which trees 
 were meant. But in this case, the proof 
 that there were not fifteen trees on the 
 land which answered the description in 
 the contract removes such uncertain- 
 ty and establishes the title in the ven- 
 dee. Dunkart v. Rineheart, 89 N. Car. 
 354. 
 
 A note was made payable to O. C. 
 Cole, " cashier," without indicating the 
 bank of which he was " cashier," Held, 
 that parol testimony was allowable to 
 show that he was " cashier" of plaintiffs' 
 bank', and that in taking the paper he 
 was acting as "cashier" and agent of 
 that corporation. Baldwin v. Bank of 
 Newbury, I Wall. (U. S.) 534; Haile v. 
 Peirce, 32 Md. 327. 
 
 The defendant wrote the plaintiffs, 
 who were stock brokers in the city of 
 New York: "I want to buy, say, one 
 hundred shares Union Pacific stock on 
 margin. Will you take $1000 first mort- 
 gage New York & Oswego R. and do 
 it?" The plaintiffs replied that they 
 would, and at once bought the stock, and 
 soon after sold it by the defendant's or- 
 der at a profit. Other stocks were after- 
 wards bought and sold by the plaintiffs 
 for the defendant under the same ar- 
 rangement, resulting in a final loss ex- 
 ceeding the value of the security held, 
 and the plaintiffs sued for the balance. 
 
 544 
 
Contracts. 
 
 AMBIGUITY. 
 
 Contracts. 
 
 AMEHD. See AMENDMENT. 
 
 Technical Vf oris— Continued. 
 Held, ihat evidence was admissible on 
 the part of the plaintiffs to show the 
 meaning of the words " on margin," that 
 term being used by stock brokers and 
 having acquired a special and well-under- 
 stood meaning in their business. Hatch 
 V. Douglas, 48 Conn. Ii5; s. c, 40 Am. 
 Rep. 154. 
 
 In ah action by the payee against the 
 acceptor of an order, above whose accept- 
 ance were written the words, "To be 
 paid out of the last payment," a written 
 contract, existing at the time of the ac- 
 ceptance, between the acceptor and the 
 drawer, for the erection of a house, and a 
 conversation, before the acceptance, be- 
 tween the parties to the order and the ac- 
 ceptor's architect, referring to the con- 
 tract, are admissible in evidence to aid in 
 the construction of the order. Proctor 
 V. Hartigan, 139 Mass. 554. 
 
 Where checks were drawn " to be paid 
 as soon as we settle with the county," it 
 was competent, for the interpretation of 
 these words, to show by parol that it was 
 understood by the drawers, drawee, and 
 payees that the checks were to be paid 
 out of a particular fund due the draw- 
 ers from the county, and which the 
 drawers had previously assigned to the 
 drawee of the checks as security for 
 advances. Des Moines v. Hinkley, 62 
 Iowa, 637, 
 
 Where a written contract contained the 
 words, "payable in trade," held, that 
 parol evidence was admissible to show 
 the meaning of the parties. Dudley v. 
 Vose, 114 Mass. 34. 
 
 Abbreviations. — Evidence tending to 
 explain the sense in which the parties 
 were in the habit of using particular ab- 
 breviations and characters, and to show 
 their conventional meaning, is admissible, 
 hut not to show the intention of a party 
 in making use of them. Jaqua v. With- 
 am, etc., Co., 106 Ind. 545. 
 
 In relation to the abbreviations on a 
 tax duplicate, the treasurer and a deputy 
 auditor were both permitted to testify 
 that "ft." meant "feet," that"Washt. 
 St." meant "Washington Street," that 
 " S. W. cor." meant southwest corner," 
 and that ' ' out. 66 " stood for ' ' out-lot 
 66." Barton v. Anderson, 104 Ind. 578; 
 Chambers v. Watson, 60 Iowa, 339; s. c, 
 46 Am. Rep. 79. 
 
 Insurance. — Where the general terms 
 and scope of a policy of insurance are 
 such as to cover a loss, conditions in the 
 
 policy restricting liability so expressed 
 as to be capable of two meanings should 
 be held to have the meaning most favor- 
 able to the insured. Burkhard v. Trav- 
 ellers' Ins. Co., 102 Pa. St. 262; s. c, 48 
 Am. Rep. 205. 
 
 An application for fire insurance con- 
 tained the question, "Is property en- 
 cumbered? if so, state amount." The 
 answer was written, "No morg. judg- 
 ment." At the time there were nine 
 judgments against the assured. Company 
 claimed answer to mean, " No mortgage 
 and no judgments." The assured claimed 
 that it meant, " No mortgage but judg- 
 ments." Held, that parol testimony was 
 admissible to show that the claim of the 
 assured was correct. Smith v. Farmers' 
 Ins. Co., 89 Pa. St. 287. See, as regards 
 ambiguity in insurance matters, Bryce v. 
 Lorillard Ins. Co., 55 N. Y. 240; Bow- 
 man V. Agricultural Ins. Co., 59 N. Y. 
 521; Fabbri v. Phoenix Ins. Co., 55 N. Y. 
 129; Planters' Ins. Co. v. Deford, 38 
 Md. 382: Frederick Co. Ins. Co. v. De- 
 ford, 38 Md. 404. 
 
 A time policy of marine insurance on 
 A's ship from the 29th of May, 1878, to 
 the 28th of May, 1879. contained the 
 words, " Warranted no St. Lawrence be- 
 tween the 1st of October and the ist of 
 April." The vessel was lost on the voyage 
 home. 'The underwriters refused A's 
 claim for a total loss on the ground of 
 breach of warranty, inasmuch as the ves- 
 sel had navigated in the Gulf of St. Law- 
 rence during the prescribed period. A 
 contended that the above words referred 
 exclusively to the River St. Lawrencel 
 Admittedly no general custom of mer- 
 chants could be proved; but the facts es- 
 tablished that the great river which dis- 
 charges the waters of the North American 
 lakes, and the gulf into which it flows, 
 both bear the name of " St. Lawrence;" 
 that the navigation of both, tnough of 
 the gulf in a less degree than of the river, 
 was within the prohibited period danger- 
 ous. Held, reversing the decision of the 
 court below, that the evidence disclosed 
 no ambiguity or uncertainty sufficient to 
 prevent the application of the ordinary 
 rules of construction; and according to 
 those rules the whole St. Lawrence navi- 
 gation, both gulf and river, is within the 
 fair and natural meaning of these nega- 
 tive words, and therefore prohibited dur- 
 ing the months in question, Birrell v. 
 Dryer, L. R. 9 H. L. 345. 
 
 545 
 
Definition. 
 
 AMENDMENT. 
 
 The Uodern Rule. 
 
 AMENDMENT.! (See also Appeal; Bail; Costs; Criminal 
 Law; Equity; Execution; Judgment; Pleading; Prac- 
 tice; Pkocess; Record; Trial; Verdict; Writ.) 
 
 1. Definition. 7. Defects Cured by Verdict. 
 
 2. The Modern Rule. 8. Time within which Amendments 
 
 3. General Principles. can be Made. 
 
 4. Of Process. 9. Terms. 
 
 5. In Pleading-. lo. Practice. 
 
 6. Of the Record. 
 
 1. Definition. — An amendment is the correction, by permission 
 of the court, express or implied,** of an error committed in the 
 progress ^ of a cause. 
 
 2. The Modern Rule. — The principle generally prevailing to-day is 
 that all such amendments shall be made as may be necessary for 
 the purpose of determining the real question or questions in con- 
 troversy between the parties, and administering justice.* 
 
 1. Amendments to constitutions are 
 outside the scope of tliis work. Amend- 
 ments in legal proceedings are alone con- 
 sidered here. 
 
 2. This includes both amendments 
 made as of course, and those made by 
 agreement of the parties. 
 
 3. I.e., both in pleading and in every- 
 thing else that is done in the cause. 
 
 4. Blenkhorn v. Penrose, 43 L. Times, 
 668. 
 
 Growth of the Principle. — In early days 
 but little amendment was allowed in com- 
 mon-law actions. Original writs had to 
 be absolutely free from falsity or error, 
 and could be excepted to for any defect, 
 e.g., a spurious seal, an erasure where 
 the names of persons, places, or things 
 were written (an erasure in the legal part 
 was not so important), a misdescription 
 of the parties as to title, name (even in a 
 single letter), or residence, an alteration 
 of the date, or a failure to observe the 
 proper order of writs. i Reeves Eng. 
 Law, 333. 461. 
 
 In Wales, however, the principle, qui 
 cndil a syllaba, cadit a iota causa, was for- 
 bidden (by St. 12 Edw. I.) to be applied, 
 and reasonable amendments were al- 
 lowed. 
 
 Amendments to other parts of the rec- 
 ord could be made, but only during the 
 term. Blackamore's Case, 8 Co. 156, a; 
 Philips V. Smith, i Str. 136. 
 
 In the early pleadings, which were oral, 
 all errors were at once objected to by the 
 opposite party, and rectified on the spot. 
 See an, instance in 2 Reeves' Eng. Law, 
 345, oi five pleas in abatenient. succes- 
 sively marie and overruled, before the 
 general issue was pleaded. 
 
 The slightest defect in the record after 
 
 it had been made up, even if only a mis- 
 spelling or other mistake of the clerk, was 
 cause for a writ of error. Originally, in- 
 deed, it seems that a court's power over 
 its own records was complete, as well 
 after they had been made up as before, so 
 that if any mistake were made by the 
 clerk in entering the judgment, it could 
 be rectified by the minutes or by the rec- 
 ollection of the court itself. So, too, if a 
 continuance or essoign were wrongly en- 
 tered, for this was the court's own fault. 
 Comyn's Dig., Amend. A; Blackamore's 
 Case, 8 Co. 156, b. 
 
 This power having been sometimes 
 used for unauthorized ends, and even to 
 cover up the. misbehavior of the judges 
 themselves, Edward I. forbade the judges 
 to make the record " a warranty for their 
 own wrong," or to make any erasure or 
 amendment of their rolls, or to record 
 them contrary to theiroriginal enrolment. 
 3 Black. Com. 408. 
 
 This was done in the tract of Britton, 
 composed apparently by royal authority, 
 being written as if promulgated by the 
 king. The manifest object was to pre- 
 vent a false or faulty record from being 
 used to pervert the truth, as well as to pre ■ 
 vent a record rightly made up from being 
 tampered with for any evil purpose, but 
 the practical effect was to prevent all 
 amendments whatever. The heavy pen- 
 alties that had attended transgressions 
 of the rule made the judges refuse to 
 touch any record once made up, so that 
 the slightest mistake, if only in a syllable 
 or a letter, and no matter through whose 
 fault it occurred, was fatal. 
 
 The evils of this strictness necessitated 
 the statutes of amendment, commonly 
 called statutes of Jeofails, from jeo faile. 
 
 546 
 
General Frinciples. 
 
 AMENDMENT. 
 
 General Frinciples. 
 
 3. General Principles. — The right of amendment is established by 
 statute in each State, but there are certain principles which underlie 
 all these statutes arid control their operation. 
 
 the pleader's acknowledgment of his er- 
 ror. The first was 14 Edw. III. c. 6, 
 which enacted that no process should be 
 annulled or discontinued for error of the 
 clerk in writing one syllable too much or 
 too little. It was held not to affect origi- 
 nal writs, but only process in ihe strict- 
 est sense, i.e., judicial writs. See Black- 
 amore's Case, 8 Co. 156. a, where it is ad- 
 mitted that process was also used in a 
 wider sense, to mean all the proceedings 
 in an action. As the act said, "error of 
 the clerk," the party's own act, or that of 
 his counsel, could not be amended, e.g., 
 the omission of the verification in a plea. 
 Y. B. 27 Hen. VL, 10; 3 Reeves' Eng. 
 Law, 471. 
 
 The act was, however, held to apply to 
 whole words, "for if a letter or syllable 
 fail in a word, it is no word, wherefore if 
 all the word fail, it may be amended as 
 well." See Y. B. 40, Edw. III. 34. b, cited 
 in Blackamore's Case. 8 Co. 156, a where 
 one of the judges stated that he had gone 
 to the council and "demanded of ihem 
 who .made the statute" whether it applied 
 to whole words. Apparently the rule that 
 the framers of an act cannot be heard to 
 explain It, is modern. 
 
 Stat. 9 Hen. V. c. 4 allowed amend- 
 ments to be made after judgment as well 
 as before, so long as the record was be- 
 fore the court. It was re-enacted with 
 fuller provisions in stat. 8 Hen. VI. c. 
 12, to the effect that for error assigned in 
 any record, process, or warrant of attor- 
 ney, original or judicial writ, panel, or 
 return, in any places of the same rased or 
 interlined, or in any addition, subtraction, 
 or diminution of words, letters, titles, or 
 parcel of letters found therein, no judg- 
 ment should be reversed or record an- 
 nulled; but that the judges of the court 
 should have power, with their clerks, to 
 examine the same, and reform and amend 
 (in affirmance of the judgment of such 
 records and processes) all that which to 
 them, in their discretion, seemed to be 
 misprision of the clerks. It did not ex- 
 tend to cases of the omission of names 
 and titles from originals and some other 
 writs. 3 Reeves' Eng. Law, 279. 
 
 Many amendments could not be made 
 after the term. The judges could not in 
 another term amend any default of their 
 own in giving judgment; and they re- 
 fused to amend a declaration that varied 
 from a writ, except by assent of parties, 
 because it was a declaration of a preced- 
 
 ing term. They made a distinction be- 
 tween the roll and record, holding that 
 the record was during the term in the 
 breast of the justices, and not in the roll, 
 which might be amended during the term ; 
 but after the term the roll became the ac- 
 tual record. 3 Reeves' Eng. Law, 472. 
 
 Stat. 32 Hen, VIII. c. 30 was anolher 
 advance, extending to any mispleading, 
 lack of color, etc.. or any other default or 
 negligence of any of the parties, their 
 counsellors or attorneys. 4 Reeves' Eng. 
 Law, 266. 
 
 It was followed by 18 Eliz. c. 14; 21 
 Jac. I. c. 13; 16 and 17 Car. II, c. 8; 4 and 
 5 Anne, c. 16; 9 Anne, c. 20; and 5 Geo. 
 I. c. 13, and various modern acts, both 
 in England and America, with the gene- 
 ral effect of allowing every facility for 
 reasonable amendment. 
 
 The acts cited above referred only to 
 civil actions, for in criminal cases amend- 
 ments were much longer forbidden, every 
 exception being allowed as in favor of 
 liberty, Stat. 37 Hen. VIII. c. 8 made 
 the omission of the usual weapons men- 
 tioned under vi et armis in an indictment 
 immaterial, but until this century no other 
 reform in this matter was made. 
 
 In equity amendments were always lib- 
 erally allowed in the interest of justice, 
 though with reasonable restrictions both 
 as to the terms on which and the time 
 within which they were granted, e.g., 
 there could be no proceedings on an 
 amended bill until the costs of the former 
 proceeding had been paid, nor could a bill 
 which had been dismissed upon the mer- 
 its be amended in a part. Viner's Abr. 
 Chancery (E. b.), 9, 11. 
 
 From these beginnings the practice of 
 allowing amendments has developed and 
 spread both in England and America, so 
 that in all our courts, as well those retain- 
 ing the old forms of pleading and pro- 
 cedure as those where more modern 
 systems prevail, the rule given in the text 
 is practically recognized and followed. 
 
 The court is authorized to make any 
 amendment, either in form or substance, 
 from the inception to the final termina- 
 tion of a suit, where the process is not 
 itself a mere nullity, and in case the mo- 
 tion for that purpose be made in fit time. 
 Anthony v. Beebe, 7 Ark. 447. 
 
 The right of amendment is unlimited 
 under such regulations as to costs as the 
 court may prescribe. Thomas v. Horn,. 
 21 Ga. 177. 
 
 547 
 
General Principles. 
 
 AMENDMENT. 
 
 General Principles, 
 
 No amendment which is unfair to the opposite party will be 
 allowed. 1 
 
 It follows from this that no new cause of action can be added 
 or substituted by an amendment,* and that, where such an amend- 
 ment is allowed, the defendant must not be prejudiced thereby.^ 
 
 Any amendment, substantial or formal, 
 is allowed as of right. Camp v. Bancroft, 
 25 Ga. 74. 
 
 Amendments may be made in chancery 
 at any time. Jeff. Co. v. Ferguson, 13 
 
 111. 33- 
 
 All courts possess the inherent power 
 to allow amendments. Tatern v. Potts, 
 5 Blackf. (Ind.) 534. 
 
 No length of time divests the court of 
 its authority to allow amendments. Lewis 
 ■V. Ross, 37 Me. 230. 
 
 It is the duty of the court to allow 
 amendments. Harrington v. Slade, Z2 
 Barb. (N. Y.) 162. 
 
 Courts have power to allow amend- 
 ments, notwithstanding that such amend- 
 ments may affect existing rights. Green 
 *. Cole, 13 Ired. Law (N. Car.). 421. 
 See also Lestrade o. Barth, 17 Cal. 285 ; 
 Killen v. Listrunk, 7 Ga. 281; McArtee 
 V. Engart, 13 111. 242; Wilson i/. Johnson, 
 
 1 Greene (Iowa), 147; Shepherd v. Bren- 
 ton, 15 Iowa, 84; Boston v. Otis, 20 Pick. 
 (Mass.) 38; Balch v. Shaw, 7 Cush. 
 (Mass.) 282; Deut v. Coleman. 18 Miss. 
 83; Shields w. Taylor, 13 Miss. 128; 
 Stephens v. Bank, 31 Miss. 438; HoUis- 
 ter V. Judges, 8 Ohio St. 201; Hester v. 
 Hapgood, 3 Hill (S. Car.), 195; Bard v. 
 Young, 2 Overt. (Tenn.) 54; Childress v. 
 Mayor, 3 Sneed (Tenn.), 347; Shieffelin 
 V. Whipple, 10 Wis. 81; Gillett v. Rob- 
 bins, 12 Wis. 319. 
 
 1. Kllle V. Ege, 82 Pa. St. 102. 
 Where A's two judgments constituted 
 
 first and third liens on land, and B's 
 judgment a second Hen, and A, intend- 
 ing to revive his senior judgment, by 
 mistake described the second one, it was 
 held that he could not amend to B's 
 prejudice. Duffy v. Houtz, 105 Pa. St. 
 96. 
 
 2. The cases recognizing this principle 
 are very numerous. See CoIIette 11. 
 Goode, L. R. 7 Ch. D. 502; s. c, 38 L. T. 
 779; Clark V. York, 47 L. T. 381; Ward 
 V. Patton, 75 Ala. 207; White v. Moss, 
 67 Ga. 89; F. & M. Bank v. Israel, 6 
 Ser. & Raw. (Pa.) 293; Diehl t/. McGlue, 
 
 2 Raw. (Pa.) 337; Wager v. Chew, 15 Pa. 
 323; Tatham v. Ramey, 82 Pa. 130; Royse 
 V. May, 93 Pa. 454; Silver v. Jordan, 139 
 Mass. 280; Carpenter v. Huffsteller. 87 
 N. Car. 273; Shen. Valley R. w. Griffith, 
 76Va. .913; Wilkinson v. Wilkinson, 59 
 Wis. 64; Codrington v. Mott, 14 N. J. 
 
 Eq. 430; Oglesby v. Attrill, 14 Fed. Rep. 
 214; Mahan v. Smitherman, 71 Ala. 563; 
 Peck V. Still, 3 Conn. 157; Atkinson v. 
 Clapp, I Wend. (N. Y.) 71; Smurthwaite 
 V. Richardson, 15 Com. B. N. S. 463; 
 Snyder v. Harper, 24 W. Va. 206; Bro- 
 dek V. Hirschfield. 57 Vt. 12. 
 
 This is especially the case after issue 
 joined. Where the bill affirmed a con- 
 tract and sought specific performance, 
 and the plaintiff asked to amend by 
 charging that the contract was fraudulent 
 and should be avoided, the court said: 
 "After issue joined, the plaintiff cannot 
 make a new case totally inconsistent with 
 that made by the bill as originally 
 framed." Codrington v. Mott, 14 N. J. 
 Eq. 430. 
 
 This rule is strictly observed in crimi- 
 nal law. In an indictment for stealing 
 ".gold and silver coin," the amount 
 proved to have been stolen did not .raise 
 the case above petty larceny, and amend- 
 ment charging theft of "bank-bills," to 
 an amount that would warrant a verdict 
 of grand larceny, was inadmissible. Peo- 
 ple V. Poucher, 30 Hun (N. Y.), 576. 
 
 Where a criminal offence against a 
 person is charged, the indictment cannot 
 be so amended as to make out an offence 
 against a different person fi'om the one 
 originally stated. State v. Morgan, 35 
 La. Ann. 1139. 
 
 3. In England the rules In force since 
 the Judicature Acts give the courts so 
 wide a discretion in the matter of amend- 
 ments that an amendment which raises 
 a new case is allowed where the circum- 
 stances warrant it. Budding v. Murdoch, 
 L. R. I Ch. D. 42. 
 
 The proper way In which to introduce 
 a new cause of action in a case at law 
 is by obtaining leave, on notice to the 
 defendant to amend the writ of summons. 
 Moore v. Alwill, 8 L. R. Ir. 245. 
 
 In Kentucky it has been held that if an 
 amendment introducing a new cause of 
 action be admissible, the party must elect 
 upon which cause he intends to proceed. 
 Humphrey v. Hughes, 79 Ky. 487. 
 
 In Texas such an amendment is 
 allowed, but it must be such as not to 
 prejudice the other party; it cannot relate 
 ijack to the bringing of the suit, so as to 
 avoid the statute of limitations, and the 
 costs already accrued must be paid. 
 Henderson v. Kissam, 8 Tex. 52; Wil- 
 
 548 
 
66d«ral Principles. 
 
 AMENDMENT. 
 
 General Friuciples. 
 
 The question of what constitutes a new cause of action has 
 given rise to many decisions.^ 
 
 liams u. Randon, lo Tex. 74; Ayres v. 
 Cayce, 10 Tex. 99; McLane v. Paschal, 
 62 Tex. 102. 
 
 Also the facts must show some good 
 reason for the amendment. Halcomb v. 
 Kelly, 57 Tex. 618. 
 
 1. In Walker v. Fletcher, 74 Me. 142, 
 an action for negligently burning "ash 
 lumber," an amendment substituting 
 " birch" was allowed. 
 
 In Conneil v. Putnam, 58 N. H. 335, 
 a declaration charging the defendant 
 with wrongfully and injuriously keeping 
 a vicious horse was amended so as to 
 charge him with negligently allowing 
 his horse to go at large without a keeper. 
 
 In Redstrake z^. Surroy, 3 All. Rep. 
 693, the bill charged fraud in certain 
 conveyances, which was denied in the 
 answer, and an agreement set up. The 
 bill was then amended, striking out the 
 charge of fraud and inserting the agree- 
 ment, and praying for a discovery and 
 account. 
 
 Rice V. Caudle, 71 Ga. 605, was an 
 action on an open account. An amend- 
 ment setting up the contract out of which 
 the account grew was allowed. 
 
 Schreckengast v. Ealy, 16 Neb. 510, 
 was an action for breach of promise of 
 marriage. It appearing that the defend- 
 ant was under age when the original 
 promise was made, an amendment stat- 
 ing a ratification and other promises 
 after he attained his majority was held 
 good. 
 
 Cramer w. Lovejoy, 48 N. Y. S. C. 5B1, 
 was an action on a promissory note. At 
 the second trial the plaintiff was allowed 
 to amend to an action for money lent 
 with an allegation that the note was 
 given as security. Held, that this would 
 not have been error, had the court re- 
 quired the plaintifif to pay the costs. 
 
 In Kellogg V. Kimball, 142 Mass. 124, 
 the declaration contained one count in 
 tort and another in contract, and was 
 demurred to 'because the two counts did 
 not refer to the same cause of action. 
 The plaintiff was allowed to strike out 
 the count in tort and substitute another 
 based on the same cause of action as the 
 count in contract. ' 
 
 In Adams v. Phillips, 75 Ala. 561, an 
 amendment showing part payment, so 
 as to take the case out of the statute of 
 frauds, was allowed. 
 
 In Mahan v. Smitherman, 71 Ala. 563, 
 it was held that common counts might be 
 added on amendment when it is not in- 
 tended to introduce a new cause of ac- 
 
 tion, but merely as a varying form of the 
 defendant's liability. 
 
 Lyon V. Talmage, i Johns. Ch. (N. Y.) 
 184, 188, states the rule in equity : "If 
 the bill be found defective in its prayer 
 for relief, or in proper parties, or in the 
 omission or statement of a fact or circum- 
 stance connected with the substance of 
 the case, but not forming the substance 
 itself, the amendment is usually granted." 
 
 In Hardin v. Boyd, 113 U. S. 756, 
 there was a bill in equity for the cancel- 
 lation of a title-bond, an account, and to 
 quiet title. It was amended so as to" 
 pray for an alternative decree for the 
 payment of the balance of the purchase- 
 money and a lien to secure it. The 
 court said: "The amendment had no 
 other effect than to make the bill read 
 just as it might have been originally pre- 
 pared consistently with established rules 
 of equity practice. It suggested no 
 change or modification of its allegations, 
 and in no just sense made a new case. 
 . . . In reference to amendments of 
 equity pleadings the courts have found it 
 impracticable to lay down a rule that 
 would govern all cases." 
 
 In Smith V. Sherman, 52 Mich. 637, a 
 bill to set aside a deed, as in fraud of the 
 rights of judgment creditors, omitted to 
 aver that they had levied, and this was 
 amended. 
 
 To a bill to discharge a mortgage the 
 mortgagee answered t.lat a small amount 
 was still due. The mortgagor amended 
 to a bill to redeem. Harrigan v. Bacon, 
 57 Vt. 644._ 
 
 " In actions ex contractu, so long as 
 the plaintiff adheres to the original in- 
 strument or contract on which the dacla- 
 ration is founded, an alteration of the 
 grounds of recovery on that instrument 
 or contract, or of the modes in which the 
 defendant has violated it, is not an alter- 
 ation of the cause of action." Hence, in 
 an action of covenant, amendments of 
 the declaration assigning new breaches 
 of the same instrument on which the 
 original counts were founded, and alleging 
 performance on the part of the plaintiff in 
 another mode than was alleged in the 
 original counts, were -allowed. Coxe z'. 
 Tilghman, i Whart. (Pa.) 282. 
 
 Where the plaintiff had declared in 
 indebitatus assumpsit, with the common 
 money counts, he was allowed to add 
 other counts charging the defendant as 
 guarantoV and indorser of a check. 
 Caldwell v. Remington, 2 Whart. (Pa.) 
 132. 
 
 I C. of L— 36 
 
 549 
 
General Principles. 
 
 AMENDMENT. 
 
 General Principles. 
 
 A new defence may be added by amendment. ^ 
 
 In some States no amendment altering the form of action is 
 allowed,** but the usual rule is otherwise, provided the cause of 
 action remain unchanged.' 
 
 Clerical mistakes in the names of parties may be amended like 
 other clerical mistakes.* 
 
 Names of parties may be added, struck off, and changed, so 
 long as the cause of action remains the same.^ 
 
 The plaintiff, in an action for money 
 had and received was allowed to amend 
 so as to declare in tort for deceit. Smith 
 V. Bellows, 77 Pa. St. 441. 
 
 To a count-for goods sold and delivered 
 to B, an amendment was allowed aver- 
 ring a sale to B, and a delivery by his 
 order to C. Bardsley v. Kern, 39 Leg. 
 Int. (Pa.) 131. 
 
 In May v. Footner, 5 El. & Bl. 505, 
 property in land being in question, an 
 amendment changing the averment of 
 the plaintiff's possession to an avermentof 
 the possession of a tenant was allowed. 
 
 1. In Brown v. Bosworth, 62 Wis. 542, 
 it is said that any amendment to the an- 
 swer is permissible provided the facts 
 introduced constitute a defence, and 
 though they may be inconsistent with 
 the grounds of the defence first stated, or 
 depart from them, or bring in a new and 
 distinct defence. " Any defence is per- 
 tinent to the action." 
 
 Between individuals, the statute of 
 limitations cannot be set up by amend- 
 ment to the answer. Plumer v. Clarke, 
 59 Wis. ,646. 
 
 But in suits against counties it may. 
 Baker v. Supervisors, 39 Wis. 444; Cap- 
 ron V. Supervisors, 43 Wis. 614; Wis. 
 Cent. R. V. Lincoln Co., 57 Wis. 137. 
 
 A qualified denial of the plaintiff's right 
 of action may be made absolute on 
 amendment. Laird v. Briggs, L. R. 19 
 Ch. D. 20; s. c, 45 L. T. 238. 
 
 The fact that the statement of defence 
 is evasive, and amounts to an admission 
 of the substantial truth of what is charged 
 in the statement of claim, is no reason for 
 not allowing it to be amended. Tidesley 
 V. Harper, L. R. 10 Ch. D. 393; s. c, 39 
 L. T. 552. See also Green v. Serin, L. 
 R. 13 Ch. D. 589; s. c, 41 L. "5. 724. 
 
 When the plaintiff has been allowed to 
 amend in an important point, the defend- 
 ant can set up any legal defence by way 
 of amendment. Gill v. Young, 88 N. 
 Car. 58. 
 
 2. This is the rule in Alabama (Mahan 
 ■V. Smitherman. 71 Ala. 563), in Missouri , 
 (Parker v. Rodes, 79 Mo. 88), and ap- 
 parently in Wisconsin (HoUehan v. 
 Roughan, 62 Wis. 64). 
 
 In U. S. V. Collier, 6 O. St. 61, after a 
 failure in a proceeding according to the 
 code, it was held that the plaintiff could 
 not amend to a form of action not-under 
 the code. 
 
 In Fraedrich v. Flieth, 64 Wis. 184, it 
 was held that the plaintiff could not amend 
 an action'at law into a suit in equity, 
 
 3. In Redstrake v. Ins. Co., 44 N. J. 
 L. 294, an action of assumpsit was 
 changed to covenant even after the case 
 had gone to the Supreme Court, as it 
 was held that the real controversy was 
 not affected. 
 
 In Hastings v. Cropper, 3 Del. Ch. 
 165, a bill for an injunction was changed 
 so as to pray for an interpleader. In- 
 stances need not be repeated, as this is 
 usually provided by statute. 
 
 4. The amendment of a writ by strik- 
 ing out the middle letter in the defend- 
 ant's name will not dissolve an attach- 
 ment of personalty when the suit is 
 between the original parties, and no 
 rights of third persons intervene. Went- 
 worth V. Sawyer, 76 Me. 434. So when 
 a middle letter is added to a name. Diet- 
 trich V. Wolffsohn, 136 Mass. 335. 
 
 Both the Christian and surname may 
 be amended, in case of a mistake, with- 
 out limit as to time. Ward v. Stevenson, 
 15 Pa. 21. 
 
 The Christian name of a defendant 
 may be added by amendment, he having 
 been sued by his surname only. Porter 
 V. Hildebrand, 14 Pa. St. 129. 
 
 The misnomer of a corporation may 
 be amended, the true party having been 
 served and taken defence. Marsh v. 
 Wilkesbarre, i Luz. L. Reg. (Pa.) 173. 
 
 5. Use plaintiffs may be brought in 
 by amendment. Braswell v. McDaniel, 
 74 Ga. 319. 
 
 The use plaintiff's name may be struck 
 out where the legal plaintiff is really 
 use plaintiff. Miller v. Pollock, 99 
 Pa. St. 202. 
 
 A defendant may be made plaintiff 
 against his co-defendants. Gill v. 
 Young, 88 N. Car. 58. 
 
 A plaintifif suing as heir-at-law rnay 
 amend so as to sue as executor. Hines 
 V. Rutherford, 67 Ga. 606. 
 
 550 
 
General Principles. 
 
 AMENDMENT. 
 
 General Principles, 
 
 Whether an amendment should relate back to the date of the 
 matter amended so as to prevent the plea of the statute of limita- 
 tions from being set up, is a point on which the authorities are 
 divided. Where the cause of action is the same it seems just that 
 it should have this effect.* 
 
 No exact rule as to the limits of the right to amend can be 
 
 stated. Courts have a 
 especially in England.* 
 
 Where a mother sued in her children's 
 behalf without designating herself as next 
 friend or guardian, this was amended. 
 Siclc V. Ass'n, 49 Mich. 50. 
 
 A non-joinder of parties is amendable. 
 Steed V. Mclntyre, 68 Ala. 407. 
 
 A suit brought in the name of the 
 assignee of a chose in action is amenda- 
 ble by placing on record the name of a 
 legal party. Downey v. Garard, 24 Pa. 
 St. 52; Barnhill v. Haigh, 53 Pa. St. 165. 
 
 Where a private party sues on an ofii- 
 cial bond in his own name, the common- 
 wealth may be made the legal party 
 plaintiff by amendment. Clement v. 
 Com'th, 95 Pa. St. 107. 
 
 An amendment may be allowed mak- 
 ing a third party a defendant upon proper 
 notice to him, if justice requires it, and 
 a trilateral controversy may be conveni- 
 ently tried in one suit. Owen v. Weston, 
 4 Atl. Rep. 801. 
 
 Names of parties cannot be amended 
 so as to vary the cause of action. Peck 
 V. Still, 3 Conn. 157; Atkinson v, Clapp,v 
 I Wend. (N. Y.) 71. 
 
 1. In Smith v. Bellows, 77 Pa. St. 441, 
 the plaintiff, who had paid for a share in 
 oil land, at the request of the defendant, 
 a director of the company, sued for 
 money had and received. He was al- 
 lowed to amend and declare in tort for 
 deceit, although the statute had then run. 
 See also Clement v. Commonwealth, 95 
 Pa. St. 107. 
 
 In Leeds v. Lockwood, 96 Pa. St. 464, 
 a plaintiff in ejectment had described the 
 wrong property, and' was allowed- to 
 amend, but not so as to avoid the bar of 
 the statute. The reason lor the decision 
 is not clear, for the authorities and stat- 
 utes cited by court and counsel do not 
 seem strictly in point. If the amend- 
 ment did not change the cause of action, 
 then, according to Smith v. Bellows, 
 stipra. the statute did not affect the mat- 
 ter; but if the cause of action was 
 changed, the amendment should not 
 have been allowed. See Tyrrill v. Lamb, 
 96 Pa. St. 464. 
 
 In Adams v. Phillips, 75 Ala. 561, an 
 amendment which took the case out of 
 the operation of the statute of frauds was 
 
 considerable discretion in the matter, 
 
 allowed to relate back so as to avoid the 
 bar of the statute of limitations, as no 
 new matter or claim was introduced. 
 
 In Cornish v. Hockin, i El. & Bl. 602, 
 by a clerical error the date of the first 
 summons was misrecited in a pluries 
 summons. This was amended after the 
 statute had been pleaded, and appar- 
 ently so as to defeat that plea. 
 
 Where, however, the date of a writ has 
 been wrongly stated in the writ itself, 
 this is not amendable so as to deprive the 
 defendant of a plea of the statute. Clark 
 V. Smith, 2 Hurlst. & Nor. 753; Camp- 
 bell V. Smart, 5 Com. B. 196; s. c, 17 L. 
 Jour. C. P. 63. 
 
 In Heath v. Whidden, 29 Me. 108, and 
 Sanger v. Newton, 134 Mass. 308, it was 
 held that the amendment related back, 
 irrespective of the statute of limitations. 
 But the contrary was held in Crofford v. 
 Cothan, 2 Sneed (Tenn.), 492, and Prid- 
 gin V. Strickland. 8 Tex. 427. 
 
 It has been held that a new count in 
 ejectment setting up a demise from a 
 different party cannot be added by 
 amendment so as to relate back. Sicard 
 V. Davis. 6 Pet. 124; Wilkes v. Elliott, 5 
 Or. C. Ct. 611. 
 
 In Miller v. Mclntyre, 5 Cr. C. Ct. 
 61, it was held that an amendment to a 
 bill in equity, bringing in new parties, 
 did not relate back. 
 
 2. The following are a few examples 
 of the limits of this right in addition to 
 those already shown: 
 
 A court cannot falsify its own record, 
 as by making it appear that an infant de- 
 fendant appeared by his guardian when, 
 in point of fact, he appeared by attorney. 
 Carr v. Cooper, I Best & Sm. 230. 
 
 So where there was a clerical error 
 both in a writ and in the copy served, 
 the court amended the writ, but not the 
 copy served. Lord Campbell, C. J., said: 
 " The copy served on the defendant is 
 not part of our record; and we should 
 be ordering a fiction by making it appear 
 that he had been served with the indorse- 
 ment as amended; which I abstain from 
 doing." Cornish v. Hockin, i £1. & 
 Bl. 602. 
 
 Pleas in abatement are not amendable. 
 
 551 
 
Of Process. 
 
 AMENDMENT. 
 
 In Pleading, 
 
 4. Of Process. — Asa general rule, there must be something by 
 which to amend the process. With this limitation nearly all de- 
 fects can be amended.* (See also PROCESS.) 
 
 5. In Pleading, — The various kinds of amendments to pleadings * 
 
 because they are dilatory and not to the 
 merits. Atkinson v. , 2 Chitty, 5. 
 
 A writ returnable on a dies non has 
 been held void and not amendable. 
 Kenwonhy v. Peppiat, 4 Barn. & Aid. 288. 
 
 The affidavit in support of a criminal 
 infbrmation is not amendable. Rex v. 
 Baxton, 9 Dovvl. 1021; U. S. v. Tureaud, 
 20 Fed. Repr. 621. 
 
 A judgment entered by consent can 
 only be amended by consent. McEachern 
 V. Kerchner, 90 N. Car. 177. 
 
 A judgment entered by mistake of the 
 plaintiff or his attorney for too small an 
 amount caiiaot be amended after other 
 parties have paid money on the strength 
 of it. Gray v. Robinson, 90 Ind. 527; 
 Selz V. Bank. 60 Wis. 246. 
 
 A supplemental complaint, showing a 
 cause of action that accrued since the ac- 
 tion was begun, is not allowed. Holly v. 
 Graf, 29 Hun (N. Y.), 443. To the same 
 effect, IMcCaslanw. Latimer, 17 S. Car. 123. 
 
 If there is nothingto amend by, no im- 
 portant amendment can be made. Hence, 
 where the declaration, summons, and 
 service were lost, they could not be sup' 
 plied by parol evidence. Bailey v. Palmer, 
 5 Ark. 20a. 
 
 When no cause of action is shown, no 
 amendment will be allowed. Hart v. 
 Bowie, 34. La. Ann. 323. 
 
 Nor to raise, what would probably be 
 a fruitless inquiry. Yorkshire Co. v. 
 Maclure, L. R. 19 Ch. D. 4B9; s. c, 45 
 L. Times, 7J1; Griswold v. Sedgwick, i 
 Wend. (N. Y.) 131. 
 
 An amendment sought merely to give 
 the party the right to open and conclude 
 to the jury will not be granted. Hartman 
 ■V. Ins. Co., 21 Pa. St. 466. 
 
 "As a general rule, leave to amend 
 ought not to be refused unless the court 
 is satisfied that the party is acting mala 
 JiJe, or that his blunder has done some 
 injury to the other side which cannot be 
 compensated in damages." Bramwell, 
 L. J., in Blenkhorn v. Penrose, 43 L. 
 Times, 668. 
 
 Other relief, not asked for in the claim, 
 will not be allowed by amendment when 
 delay would thereby be caused to another 
 action. Cargill v. Bower, L. R. 10 Ch. 
 D. 502;. s. c.,, 38 L. Times, 779. 
 
 It has been held discretionary with the. 
 court to allow new pleadings to be filed 
 afrer issue Joined. Hoffman v. Rothen- 
 berger, 82 Ind. 574. 
 
 So in regard to filing an amended an- 
 swer, raising an issue antagonistic to 
 that already raised. Harvey v, Corcoran, 
 60 Cal. 314. 
 
 Where a mistake is alleged, it must be 
 clearly shown. Brownlee v. Com'rs, loi 
 Ind. 401. See also Trumboi'. Finley, 18 
 S. Car. 305; Turnley v. L. & N. W. R., 
 16 Com. B. 575. 
 
 ^1, E.g., in Wesson v. Stalker, 47 L. 
 Times, 444, the copy of the writ served 
 was tested as in 1880, instead of 1882. 
 After a judgment by default there was a 
 motion to set aside on the ground that 
 the test was a material part, any error in 
 which was fatal, so that the affidavit of 
 service of a true copy was false. It was 
 held a mere imperfection, amendable at 
 any time. 
 
 In Pleasants v. East Dereham, 47 L. 
 Times, 439, the summons purported to 
 be tested by a chancellor not then in office. 
 ffeld, a clerical error, which the judge 
 had power to amend. So Wakeling v. 
 Watson, I Cromp. & Jer. 467. 
 
 Where, in a suit by indorsee against 
 maker, the copy of the note indorsed on 
 the summons omitted the maker's name, 
 it was amended, and the service held 
 good on payment of costs. Knight v. 
 Pocock, 17 Com. B. 177. 
 
 Where a suit against A and B had been 
 dismissed as to B for want of service, 
 and a judgment against A had been re- 
 versed, the complaint was amended and 
 process served on B. Clodfelter v. 
 Hulett, 92 Ind. 426. 
 
 2. Defective pleadings must be amend- 
 ed, and cannot be legalized. People v. 
 Mariposa Co., 31 Cal. 196. 
 
 See p. 551, n. i, for cases of such 
 amendments. To cite others: 
 
 Where evidence not within the issue is 
 offered and admitted, the pleadings may 
 be amended to conform to it. Bank v. 
 Stover, 60 Cal. 387. 
 
 Where a. verdict has been given for 
 damages greater than those laid in the 
 declaration, it may be amended. Tebbs 
 V. Barron, 4 Man. & Or. 844; Eleston v. 
 Deacon, L. R. 2 C. P. 20. 
 
 Pending a suit on a note, a judgment 
 in a former suit on the same note was 
 made up and entered by the supreme 
 court. It had effect from its original 
 date, and an amended declaration was 
 filed, counting on the judgment. King 
 V. Burnham, 129 Mass. 598. 
 
 552 
 
Defects Cured by Verdict. 
 
 AMENDMENT. Time within which to be made. 
 
 depend largely on the statutes of amendment and the forms of 
 pleading in use in the respective States. (See also Pleading.) 
 
 6. Of the Record. — Every court of record has, at common law, the 
 power to amend its record, so as to make it conform to the fact.' 
 (See also Record.) 
 
 7. Defects Cured by Verdict. — The general principle is that if the 
 issue joined be such as necessarily required on the trial, proof of 
 facts defectively or imperfectly stated or omitted in the plead- 
 ings, and without which proof it is not to be presumed that either 
 the judge would direct the jury to give the verdict or the jury 
 would have given it, such defects need not be amended, but are 
 held to be cured by the verdict.** (See also VERDICT ; PLEADING.) 
 
 8. Time within which Amendmeats can be Made.' — Subject to the 
 rights of the opposite party, amendments to the pleadings can 
 usually be made at any time before the jury have retired, or the 
 hearing, if in equity, is at an end.* 
 
 Sometimes, however, no such amendment is allowed after issue 
 joined.** 
 
 1. Pa. & N. Y. R. V. Bunnell, 8i Pa. St. 
 414; King V. Bank, 9 Ark. 885; Hol- 
 lister V. Judges, 8 O. St. 201; Hester o. 
 V. Hapgood, 3 Hill (S. Car.), 195; Beard 
 Young, 2 Overt. (Tenn.) 54. 
 
 After the record has ceased to be in 
 fieri, and after the term, it cannot be 
 amended by parol evidence, go Ind. 577. 
 
 But this rule does not usually obtain. 
 See post, 3. 
 
 2. I Saunders, 228, a ; Lebanon Bank 
 V. Karmany, 98 Pa. St. 42; Mathias v. 
 Sellers, 86 Pa. St. 486. 
 
 3. Formal amendments may be made 
 at any time. Glasscock v. Glasscock, 8 
 Mo. 577; 
 
 Amendments may be granted at any 
 stage of the trial, when necessary for the 
 ends of justice. Lestrade v. Barth, 17 
 Gal. 285. 
 
 " The old notion that the record re- 
 mains in the breast of the court only till 
 the end of the term, has yielded to neces- 
 sity, convenience, and common-sense." 
 Rhoads v. Cora'th, 15 Pa. St. 276. 
 
 4. Hill w. Chipman, 59 Wis. 211, was a 
 case of breach of contract. After the 
 plaintiff rested, the complaint was 
 amended so as to allege readiness and 
 willingness to perform. 
 
 In Herman v. Rinker, 106 Pa. St. 121, 
 at the trial of a feigned issue, the plaintiff 
 wished to amend the narr by striking 
 out one of the defendants. Held, error 
 not to allow this. 
 
 In Neal v. Spooner, 20 Fla. 38, the 
 name of one of the plainviffs was struck 
 out, and that of his next friend substi- 
 tuted, at the trial. 
 
 In Georgia, on appeal trials, amend- 
 
 ments are allowed after the case has been 
 submitted to the jury. Vance v. Craw- 
 ford, 4 Ga. 445. 
 
 In Mississippi they are allowed at any 
 time before verdict. Barker v. Justice, 
 41 Miss. 240. 
 
 In Harrigan u. Bacon, 57 Vt. 644. a 
 bill to discharge a mortgage was, on the 
 hearing, amended to a bill to redeem. 
 
 In Indiana no new issue can be raised 
 after argument. Kerstetter v. Raymond, 
 10 Ind. 199. 
 
 The Delaware rule is that amendments 
 can be made after issue joined, but not 
 after argument. Wood v. Academy, 5 
 Houston (Del.), 513. 
 
 Where a bill to set aside a deed as in 
 fraud of the rights of judgment creditors 
 omitted to aver that they had levied, this 
 was amended at the hearing. Smith v. 
 Sherman, 52 Mich. 627. 
 
 In Roe v. Davies, L. R. 2 Ch. D. 729, 
 the plaintiff was allowed to amend the 
 bill, and go into further evidence, after 
 the hearing had been fixed and accident- 
 ally postponed. 
 
 In a suit for importing articles infring- 
 ing the plaintiff's patent, an amendment 
 to show that the defendants were custom- 
 house agents, engaged in getting the goods 
 landed and stored, was allowed during the 
 hearing. Nobel's Explosives Co. v. Jones, 
 L. R. 17 Ch. D. 721; s. c, 42 L. T. 754. 
 
 After a cause has been referred to ar- 
 bitrators, it is not too late to amend the 
 bill of particulars. Hodson v. Steers, i 
 Fos. & Fin. 484; Jones v. Corry, 6 Bing. 
 N. Cas. 247; Blunt v. Cooke. 4 Man. & 
 Gr. 458. 
 
 6. In Braucker v. Crozier, 16 L. T. 391, 
 
 553 
 
Tims within which 
 
 AMENDMENT. Amendments may be made. 
 
 Certain amendments may be made after judgment.^ 
 No party guilty of laches will be allowed to amend.® 
 
 a replication of the statute of limitations 
 was too late after issue joined. 
 
 In Ritchie v. Van Gelden, 9 Welsby 
 Hur. & Gor. 762, a plea of " never lent" 
 could not be amended to " lent for an un- 
 lawful purpose " after issue joined. 
 
 In Hendriks v. Montagu, L. R. 17 Ch. 
 D. 642; s. c, 44 L. T. 89, an amendment 
 raising a charge of fraud, which had not 
 hitherto been made, was refused at the 
 trial. 
 
 In Hackett v. Lalor, 12 L. R. Jr. 44, it 
 was held that a. statement of defence 
 could not be set aside after issue joined. 
 
 Where the writ was not directed to the 
 sheriff or coroner of any particular county, 
 it could not be amended after plea in 
 abatement, as such amendment would 
 sweep away the defence set up. Anthony 
 V. Beebe, 7 Ark. 447. 
 
 A case stated will not be amended by 
 raising a point not raised by the parties, 
 unless it has been omitted by error or 
 through fraud. Hills v. Hunt, 15 Com. 
 B. i; Pennington v. Cardale, 10 Weekly 
 Rep. 544; Com'rs v. Jones, 8 Com. B. 
 N. S. 124. 
 
 1. Where an amendment changing a 
 name had been allowed, but the clerk 
 omitted to do it, it was permitted after 
 judgment. Sanford v. Willetts, 29 Kan. 
 647. 
 
 In McKinney v. Jones, 55 Wis. 39, it 
 was held that the complaint could be 
 amended as well before as after judg- 
 ment to correspond with the proofs. 
 
 In Stuart v. Logansport, 87 Ind. 584, 
 the action had been dismissed as to som& 
 of the parties. After judgment the re- 
 cord was amended so as to show this. 
 
 In Hill V. Hoover, 5 Wis. 387, it was 
 held that the supreme court had power, 
 on a proper application, to correct its 
 records, so as to make them conform to 
 the truth of the case, at a term subse- 
 quent to the one at which the judgment 
 was rendered. 
 
 In Kirkpatrick v. Corning, 29 N. J. 
 Eq. 23, part of the bill had been held bad 
 on demurrer above and below. After 
 decree, the defective part was struck out 
 on amendment, on motion of the defend- 
 ants. 
 
 In Winkley v. Winkley, 44 L. T. 572, 
 after judgment in partition, the state- 
 ment of claim and order of sale were 
 amended. 
 
 In Cannan v. Reynolds, 5 El. & Bl. 
 301, a judgment by default was set aside 
 and ordered to be repaid, and the bill of 
 
 particulars amended, on payment of 
 costs. 
 
 In In re Blight, 45 L. T. 531, an 
 amendment raising new questions was 
 refused after judgment. 
 
 In Petrie v. Hannay, 3 Durn. & East. 
 659, there had been a verdict on the gen- 
 eral issue, but no notice had been taken 
 of the issue on the statute of limitations. 
 This was amended on payment of costs. 
 
 A verdict in replevin, not properly spe- 
 cific, can be amended. Rees v. Morgan, 
 3 Durn. & East. 349.- 
 
 A judgment de bonis propriis may be 
 amended to one de bonis testatoris. Green 
 V. Rennett, I Durn. & East. 782. See 
 also Mellish v. Richardson, 3 Barn. 
 & Cress. 819; Regina v. Nott, 4 Ad. & 
 Ell. N. S. 7S6; Laing v. Whalley, 3 
 Hurlst. & Nor. got; Hooper v. Laine, 6 
 H. L'. Cas. 443; Paddon v. Bartlett, 3 Ad. 
 & Ell. 887; Jackson v. Galloway, i Man. 
 Gr. & Sc. 281. 
 
 In Webster v. Emery, 10 Welsby Hur. 
 & G. 901, a payment into court had been 
 accepted by the plaintiff under a misap- 
 prehension. A repayment, and amend- 
 ment of the declaration, were subse- 
 quently allowed. 
 
 In Young v. Glascock, 79 Mo. 574, an 
 amendment to the answer was asked for, 
 and the trial proceeded on the under- 
 standing that it should be made. After 
 a motion in arrest of judgment was filed, 
 the defendant offered to amend. The 
 court said that it was too late. Held, that 
 this was error. 
 
 The seal of the court may be added to 
 a writ of execution after it has been ex- 
 ecuted. Taylor v. Courtnay, 15 Neb. 
 190. 
 
 2. In Jones v. Welling, 16 Fed. Rep. 
 635, leave to amend was refused on this 
 ground after the testimony had closed. 
 
 Also, when it was sought to maintain 
 a new defence. Elder v. Harris, 76 Va. 
 187. See also Bauer's Est., 13 Phila. (Pa.) 
 391; Horton w. McCurdy, 14 Phila. (Pa.) 
 221; Williams w. Thompson, 80 Ky. 325; 
 Fowble V. Rayberg, 4 Ohio, 45 ; Dawes v. 
 Gooch, 8 Mass. 488; Sackett v. Thom- 
 son, 2 Johns. (N. Y.) 2o5. 
 
 In Staples v. Holdsworth, 4 Bing. N. 
 Cas. 717, a lapse of ten years was held 
 not to show laches, the plaintiff having 
 been beyond seas. 
 
 Municipal corporations are not held so 
 strictly to promptness in this matter as 
 individuals are. Brooks v. N. Y., 12 
 Abb. N. Cas. (N. Y.) 350. 
 
 554 
 
Terms-Practiee. AMENDMENT— AMERCEMENT. 
 
 Definition, 
 
 Amendments of any kind are very rarely made after appellate 
 proceedings have been instituted. ^^ 
 
 9. Terms. — When an amendment is applied for, the court will 
 impose such terms as will, under the circumstances of the case, 
 secure justice and prevent the other party from being prejudiced.* 
 
 Payment of the costs of the proceedings rendered nugatory by 
 the amendment is a usual prerequisite. ^ 
 
 10. Practice. — Amendments are usually made on motion,* but 
 the practice depends on statutory regulations. (See also PRAC- 
 TICE.) 
 
 AMERCEMENT. (See also FINES; Sheriff.)— A pecuniary 
 penalty or fine imposed upon an offender at the discretion of the 
 •court.^ 
 
 1. In Hosmer v. Williams, Wright (O.) 
 355, a change in the form of action was 
 not allowed after writ of error. 
 
 In Perry v. Plunkett, 74 Me. 328, the 
 ■case having gone to the supreme court 
 on an agreed state of facts, no amend- 
 ment was allowed. 
 
 In King v. Bank. 9 Ark. 185, a. record 
 erroneously showing that all the defend- 
 ants' pleas, instead of some only, had 
 been withdrawn, was amended after the 
 defendants had taken a writ of error. 
 
 In McLane v. Paschal, 62 Tex. 102, 
 after an appeal to the district court from 
 an inferior court, an amendment to the 
 answer was made, but struck out by the 
 district judge. Held, that this'was error, 
 as the only criterion was whether or not 
 it could have been admitted in the infe- 
 rior court. 
 
 On appeal from the U. S. district court, 
 the circuit court cannot allow an amend- 
 ment which would bring before it parties 
 not namedjn the appeal bond. The City 
 of Lincoln, 19 Fed. Rep. 460. 
 
 2. Rives V. Walthall, 38 Ala 329; Ma- 
 hone V. Williams, 39 Ala. 202; Chambless' 
 ■V. Taber, 26Ga.l67;Seez'.Bobst,9Mo.28. 
 
 But not for merely formal amend- 
 ments. Gale V. French, 16 N. H. 95. 
 
 An amendment seeking to set up the 
 defence of usury must be accompanied 
 by tender of the sum lawfully due. Post 
 V. Boardman, i Parke (N. Y.), 523; Bank 
 V. Beach, I Pai. (N. Y.) 429. 
 
 3. McLellan v. Osborne, 51 Me. 118; 
 Keeler v. Shears, 5 Wend. (N. Y.) 540; 
 Mobley v. Mobley, 7 Rich. (S. Car.) 431; 
 Downer v. Thompson, 6 Hill (N. Y.), 
 377; Turnerw. Hillerline, 14H0W. (N. Y.) 
 231; Shanks w. Rae, 19 How. (N. Y.) 540; 
 Benezin v. Lovelace, Cam. & N. (N. Car.) 
 521; Woods V. Durett, 28 Tex. 429; King 
 V. Corke, L. R. i Ch. D. 57; s. c, 33 L. 
 Times, 375; Cargill v. Bower, L. R. 4 Ch. 
 D. 78; s. c, 35 L. Times, 621. 
 
 But not where the need of the amend- 
 ment is caused by the defendant's with- 
 holding information. Nobel's Explosives 
 Co. V. Jones, 49 L. Jour. Chanc. 726; 
 s. c, 4 L. Times, 756. 
 
 Where the variance between the allega- 
 tion, in the pleading and the proof is not 
 material, and the adverse party could not 
 have been misled thereby to his prejudice, ' 
 the court should allow an amendment 
 without costs. Riddles v. Aikin, 29 Mo. 
 453- 
 
 The payment is not a condition prece- 
 dent unless so expressly stated in the 
 order. Winfield v. Dyer, i Cranch C. 
 Ct. 403; Cutts V. Chapman, i Cranch C. 
 Ct. 570. 
 
 4. Amendments of pleadings should be 
 made and allowed only by the court at 
 "bar, and upon apphcation and order in 
 term time; not by a single judge in vaca- 
 tion. Den V. Hull. 9 N. J. Law, 277. 
 
 A writ not running in the name of the 
 State should be amended by the court of 
 it own motion, or treated as amended. 
 Kahn v. Kuhn, 44 Ark. 404. 
 
 5. Rapalye and Lawrence Law Diet., 
 sub voce. 
 
 Anciently there was an important dis- 
 tinction between an "amercement ' and 
 a fine. A fine was a certain punishment, 
 growing expressly out of some statute, 
 and was always imposed and assessed by 
 the court; an amercement was imposed 
 by the court in general terms {quod sit in 
 misericordia, that the party be in mercy), 
 and was afterwards assessed or affeered 
 (that is, moderated, and reduced to a cer- 
 tain sum) by the peers or equals of the 
 party, who were hence called "afieerors " 
 Brook V. Hustler, i Salk. 56; 3 Salk. 
 
 33- 
 
 The term "amercement" was also ap- 
 plied more particularly to pecuniary pun- 
 ishments imposed upon the officers of 
 courts, as sheriffs and coroners, and the 
 
 555 
 
AMICABLE— AMIC US C URIyE—A MNESTY— AMONG. 
 
 AMICABLE. — A tecfejiical word used in reference to an action 
 instituted in court by consent of the parties.* 
 
 AMICUS CURI^ffi. — A friend of the court ; one who suggests 
 something for the information of a court.* 
 
 AMNESTY is the abolition or oblivion of the offence.' 
 
 AMONG.— To each one.* 
 
 word is still used in this sense. See title 
 Sheriffs'. In other respects, however, 
 no essential distinction remains betwen 
 an amercement and a fine. Amerce- 
 ments, in their ancient technical sense, 
 are entirely disused in modern practice. 
 Burrill's Law Diet., sub voce. 
 
 1. Amicahle Action. — " For the word 
 ' amicable ' is not of substance, the mean- 
 ing being an action to be entered. 
 Whether amicable or adverse could not 
 be material, and was used only as that 
 was the form of action that was then 
 contemplated." Brackenridge, J., Bond 
 V. Gardiner, 4 Binn. (Pa.) 269, 282. . 
 
 Amicable Compounders. — The Louisi- 
 ana civil code, under the title of " Arbi- 
 tration," recognizes two classes of arbi- 
 trators: "the arbitrators, properly so 
 called," and " the amicable compound- 
 ers." Art. 3076. The following article 
 defines the difference between them, as 
 to the principles by which they are to be 
 guided in the discharge of their duty; 
 "The arbitrators," says article 3077, 
 " ought to determine, as judges, agree- 
 ably to the strictness of the law. ' Ami- 
 cable compounders,' are authorized to 
 abate something of the strictness of the 
 law, in favor of natural equity." Bird 
 •v. Laycock, 17 La. Ann. 171. 
 
 Amicable Lawsuit. — By the terms " arbi- 
 tration" and "amicable lawsuit" as un- 
 derstood in their common and usual sig- 
 nification, the former means a reference 
 or submission of a matter in dispute to 
 the decision of one or more persons as 
 arbitrators, whilst the latter, "an amica- 
 ble lawsuit," is one instituted in a court 
 of justice seriously, but in a friendly 
 spirit, in order that some matter in con- 
 troversy may, by a judicial decree, be 
 settled definitely, as cheaply, and with 
 as little delay as possible. Thompson & 
 Co. V. Moulton, 20 La. Ann. 535. 
 
 2. This term is usually applied to a 
 counsellor of a court, who being present, 
 makes some suggestion to the court in 
 regard to the matter pending. It is 
 more rarely applied to counsel arguing 
 in a cause. The case was elaborately 
 argued by Fisher for the petitioner, and 
 Fry, who was counsel in a similar case, 
 as amicus curie. See Ex parte Yeager, 
 
 II Grattan (Va.), 655; Ex parte Ran- 
 dolph, 2 Brock. (U. S.) 446, 461. 
 
 It is also applied to the parties to 
 actions, suggesting or showing some- 
 thing for their own benefit. The Prince's 
 Case, 8 Coke, 15, 29, a. 
 
 So of persons who have no right to 
 appear in a suit, but are allowed to 
 introduce evidence to protect their own 
 interests. See Bass v. Fontleroy, 11 
 Texas, 698. 
 
 Finally, of any stranger, who being in 
 court calls the court's attention to some 
 error in its proceedings. Falmouth v. 
 Strode, 11 Mod. 137; Williams v. Blunt, 
 2 Mass. 207, 215. 
 
 " Any one. as amicus curice, may make 
 application for and in the behalf of an 
 infant, though no relation." Beard v. 
 Travers, I Ves., Sr. 313. 
 
 3. State V. Blalock, Phill. (N. Car.) 
 247; Ex parte Law., 37 Ga. 296. See 
 Knote V. U. S., 10 Ct. of CI. 397; s. c, 
 95 U. S. 149. 
 
 Amnesty and pardon are very differ- 
 ent. , A pardon is granted to one who is 
 certainly guilty, sometimes before, but 
 usually after, conviction, and the court 
 takes no notice of it unless pleaded, or 
 in some way claimed, by the person par- 
 doned; and it is usually granted by the 
 crown or by the executive. But am- 
 nesty is to those who may be guilty, and 
 is usually granted by Parliament or the 
 legislature; and to whole classes before 
 trial. Amnesty is the abolition or ob- 
 livion of the offence; pardon is its for- 
 giveness. State V. Blalock, Phill. (N. 
 Car.) 247. See U. S. v. Wilson, 7 Pet. 
 (U. S.) 150. 
 
 The general amnesty granted by the 
 President, Dec. 25, 1868, does not en- 
 title one receiving its benefits to the 
 proceeds of his property previously con- 
 demned and sold under the Confiscation 
 Act of 1862, after such proceeds have 
 been paid into the tJ. S. Treasury. 
 Knote V. U. S.. 95 U. S. 149. See also, 
 as regards the President's proclamation, 
 Carlisle v. U. S., 16 Wall. (U. S.) 147; 
 Gay's Gold. 13 Wall. (U. S.^ 358; U. S. 
 V. Klein. 13 Wall. (U. S.) 128. 
 
 4. A direction by a testator to distribute 
 his property among his children would 
 
 556 
 
Sefinition. 
 
 AMOTION. 
 
 Bight of Expulsion.. 
 
 AMOTION. (See also Disfranchisement; Expulsion ; Offi- 
 cers OF Municipal Corporations; Officers of Private 
 Corporations.) 
 
 1. Definition. 
 
 2. Right of Expulsion. 
 
 3. Limitations upon the Right of Ex- 
 
 pulsion. 
 
 4. Causes for Expulsion. General 
 
 Principles. 
 
 5. Who has Power to Expel. 
 
 6. Mode of Expulsion. 
 
 7. In Expelling Corporator, Pro- 
 
 visions of Charter and By-laws 
 must be Complied with. 
 
 8. Remedy for Illegal Expulsion. 
 
 1. Definitiou. — Amotion is the removal of an official agent of a 
 corporation from the station assigned to hiin, before the expiration 
 of the term for which he was appointed. 
 
 The term seems in strictness only to apply to officers ; and, con- 
 sequently, if an officer be removed for gopd cause he may still 
 continue to be a member. Disfranchisement, on the other hand, 
 applies to the removal or expulsion of members generally.^ 
 But amotion and disfranchisement are sometimes used as con- 
 vertible terms.'-* 
 
 2. Right of Expiilsiou. — ^The right of expulsion of an officer for 
 just cause is a common-law incident of all corporations ; ^ and in 
 
 not authorize the distribution of all the 
 property to one child, nor that one be 
 wholly excluded. Hudson v. Hudson's 
 Adm., 6 Mumf. (Va.) 353. 
 
 Among Valuable Papers. — This phrase 
 does not necessarily mean among the 
 most valuable papers. Winstead et ux. 
 V. Bowman et al., 68 N. Car. 174. 
 
 1. 2 BI. Com. 37. The word "dis- 
 franchisement " signifies taking a fran- 
 chise from a man for some reasonable 
 cause. Symmers ». R., 2 Cowper, 489, 
 502. 
 
 Disfranchisement is defined Vo be the 
 taking a franchise from a man for some 
 reasonable cause. People v. Med. Soc. 
 of County of Erie, 24 Barb. (N. Y.)570, 
 578. 
 
 In strictness the term disfranchisement 
 is applicable to members, while the term 
 "amotion" is applied only to such mem- 
 bers as are officers; and, consequently, if 
 an officer be removed for good cause- he 
 may still continue to be a member of the 
 corporation. The Queen v. Saddler's Co., 
 10 H. L. Cas. 404; Neale©. Hill. 16 Cal. 
 145 ; State v. Adams, 44 Mo. 570. 
 
 2. 2 Kent's Com. 297. 
 
 3. Thus on the question whether the 
 corporation of Ipswich had power to 
 amove from the office of portman of the 
 town or borough of Ipswich, Lord Mans- 
 field said: "We think that from the 
 reason of the thing, from the nature of 
 the corporations, and for the sake of 
 order and government, the power is in- 
 cident, as much as the power of making 
 
 by-laws;" citing Lord Bruce's Case, 2 
 Strange, 819. 
 
 " The modern opinion has been that 
 a power of amotion is incident to the cor- 
 poration." Rex V. Richardson, i Bur- 
 rows. 5 17; Rexz/. Ponsonby, I Vesey. Jr. i. 
 
 Where an act created the " Illinois 
 State Hospital for the Insane," and in- 
 corporated certain individuals named, and 
 their successors in office, as trustees, with 
 the power of appointing a superinten- 
 dent, who should be subject to removal 
 only for infidelity to the trust reposed in 
 him, or on account of incompetency, it 
 was held that the trustees had the right 
 to remove the superintendent for the 
 causes specified, whenever either of those 
 causes existed; and that had the law been 
 silent as to the tenure of the office, and 
 on the subject of removal, the court 
 would not hesitate to hold that the 
 power of amotion was incidental to that 
 of appointment, and that the trustees 
 might remove the superintendent without 
 assigning any specific cause, whenever in 
 their judgment the best interests of the 
 institution should require it. People v, 
 Higgins, 15 111. no. 
 
 But a member of a corporation cannot 
 be ejected until after he has an oppor- 
 tunity to be heard. Southern Plank Road 
 Co. V. Hixon, 5 Ind. 165; State v. 
 Adams, 44 Mo. 570. 
 
 The right cannot be exercised arbi- 
 trarily. Evans v. Philadelphia Club, 50 
 Pa. St. 107; State v. Georgia Medical 
 Soc, 33 Ga. 608. 
 
 557 
 
Bigiit of Expulsion. 
 
 AMOTION. 
 
 Bight of Expulsion 
 
 case of mere ministerial officers, appointed durante bene placito, at 
 the mere pleasure of those appointing them, without notice.* 
 
 The power of removal must be exer- 
 cised for some reasonable cause. The 
 members of an eleemosynary corporation 
 cannot legally expel one of their mem- 
 bers for using disrespectful and con- 
 temptuous language toward the rest, as 
 by calling them sycophants, rascals, 
 scoundrels, etc., and for neglecting to 
 fulfil his duties as a member of one of 
 their committee,s. Fuller v. Plainfield 
 Academic School, 6 Conn. 546. 
 
 Power of Expulsion conferred by Charter. 
 — Corporations whose chief purpose is 
 that of gain have no power to expel their 
 members, and thus to deprive them of 
 their property rights, unless the power is 
 expressly given by charter. In re Loiig 
 Island R. Co., 19 Wend. (N. Y.) 37; 
 Evans v. Philadelphia Club, 50 Pa. St. 
 107; Bagg's Lease, 11 Co. gg. See Hop- 
 kinson v. Exeter, L. R. 5 Eq. 63. 
 
 Such a power is not often conferred on 
 , such corporations. It is, however, fre- 
 quently conferred upon corporations 
 whose primary purpose is not that of 
 gain. The power is, of course, in such 
 case wholly determined by the particu- 
 lar charter provisions. Black & White 
 Smith's Soc. V. Vandyke, z Whart. (Pa.) 
 309; Commonwealth fj: «/. Bryan i/. Pike 
 Beneficial Assoc, 8 W. & S. (Pa.) 247; 
 Inderwick^/o/. v. Snell, 2 McN. &G.216. 
 
 This applies to benevolent societies, 
 stock and other exchanges. literary, 
 social, and like institutions, whose pur- 
 poses are not primarily or exclusively 
 those of gain; while the right to censure 
 a member for improper conduct is inci- 
 dent to every corporation. Smith v. 
 Smith, 3 Desaus. 557; Com. v. Phila. 
 Soc, 5 Binn, (Pa.) 486; Society v. Com., 
 52 Pa. St. 125; People v. Chicago Board 
 of Trade, 45 III. 112. 
 
 With regard to corporations or asso- 
 ciations of any kind holding property, 
 it cannot be pretended that a member 
 can be expelled and thus deprived of his 
 interest therein, in any case by a major- 
 ity of the corporators, unless such power 
 bas been expressly conferred by the char- 
 ter. Angell & Ames on Corp. ^ 410. See 
 People w. New York Cotton Exchange, 
 8 Hun (N. Y.), 2i6j People v. Board of 
 Trade, 80 111. 134; People v. Mechanics' 
 Aid Society, 22 Mich. 86; Hopkinson v. 
 Exeter, L. R. 5 Eq. 63; Gardner v. Free- 
 mantle, 19 W. R. 256; Dean v. Bennett, 
 L. R. 6 Ch. 489; Fischer u. Keane. 11 
 Ch. D. 353; Dawkins v. Antrobus, 41 Law 
 T. (N. S.) 490; 17 Ch. D. 615. 
 
 As to the effect of an express provi- 
 sion of this kind, see Hope v. Interna- 
 tional Financial Soc, W. N. (Eng.) 1876, 
 p. 257, where even the express provi- 
 sions of the articles of association were 
 held inoperative to disfranchise a mem- 
 ber who was seeking to restrain the com- 
 pany from making an improper applica- 
 tion of the funds of the society. See also 
 State V. Adams, 44 Mo. 570. 
 
 But all such provisions will be con- 
 strued strictly. State ex rel. Graham v. 
 Chamber of Commerce, 20 Wis. 63. 
 
 The court will not, however, review 
 the action of the corporation in such case 
 unless it appears to have been in bad 
 faith. People ex rel. Stevenson v. Hig- 
 gins, 15 111. no; Queen w. Governors of 
 Darlington Free Grammar School, 14 L. 
 J. (Q. B.) 67. 
 
 1. Willc. Mun. Corp. 253. 
 
 Under the constitution of New York, 
 which declares that " where the duration 
 of any office is not prescribed by the con- 
 stitution, it may be declared by law ; and 
 if not so declared, such office shall be held 
 during the pleasure of the authority mak- 
 ing the appointment," it was held that 
 commissioners for the erection of a pub- 
 lic work, authorized by a special act of 
 the legislature to be appointed by the 
 governor, secretary of state, and comp- 
 troller, the duration of whose office is not 
 prescribed by law, hold their offices dur- 
 ing the pleasure of the authority making 
 the appointment, and of course are sub- 
 ject to removal from office by the same 
 authority. People v. Comptroller of the 
 State, 20 Wend. (N. Y.) 595. 
 
 The power granted by the constitution 
 to the governor to appoint necessarily 
 carries with it, in all offices where the 
 tenure is during pleasure, the incidental 
 power of removal. Com. v. Sutherland, 
 3 S. & R. (Pa.) 144, 154; Field v. Girard 
 College, 54 Pa. St. 233. 
 
 The grant of power to the executive to 
 remove an officer for a certain cause im- 
 plies authority to judge of the existence 
 of that cause. State v. Doherty, 25 La. 
 Ann. 119. 
 
 On the charter power of removal, with- 
 out cause, at any time, of a police patrol 
 appointed for a year, see Chicago v. 
 Edwards, 58 111. 252. ' 
 
 The common council of a city incor- 
 porated under the general law for the in- 
 corporation of cities (Acts 1867, p. 33) 
 may, under the eighth section of that act, 
 remove from office a city attorney by the 
 
 558 
 
Sight of Expulsion. 
 
 AMOTION^ 
 
 Causes for Expulsion. 
 
 3. Limitations upon the Right of Expulsion. — Where the right of 
 disfranchisement exists, the only Hmit thereto is that it be done for 
 a just and sufficient cause, and that the party to be expelled be 
 duly notified to appear, and be afforded an opportunity to be 
 heard. '^ 
 
 4. Causes for Expulsion — General Principles. — The following are 
 said by the authorities to be causes for which any corporation 
 not for gain is justified in expelling its members, viz. : 
 
 (i) An offence which, though it has no immediate relation to 
 the corporate character, is of so infamous a nature as to render 
 the oflender unfit to exercise the franchise. 
 
 (2) An offence which is against the duty of the offender as a 
 corporator, and which amounts to a breach of the tacit condition 
 annexed to the franchise. 
 
 (3) An offence of a mixed nature, partaking of the character of 
 both the sorts of offences above specified.* 
 
 vote of a mere majority (said section 
 reading: "The city attorney, etc., shall 
 hold office two years each, subject to re- 
 moval by said city council at their pleas- 
 ure"), where the removal is contem- 
 plated without any offence being charged, 
 but simply at the pleasure of the council. 
 City of Madison v. Korbly, 32 Ind. 74. 
 
 As to the validity of acts performed by 
 an officer removed by appointment of an- 
 other, it has been held that "a United 
 States marshal is not removed by the ap- 
 pointment of another until he receives 
 notice of such appointment; and all acts 
 done by him before such notice are 
 good." Bowerbank v. Morris, Wallace, 
 iig. Cf. Doolittle's Lessee v. Bryan et 
 al., 14 Howard (U. S.), 563. 
 
 1. Queen v. Sadler's Co., 10 H. L. Cas. 
 404; 3 Ellis & E. 42; 4 Best & Smith, 
 570; Page V. Hardin, 8 B. Men. (Ky.) 
 648; Com. V. German Society, 15 Pa. St. 
 251; Black & White Smith's Soc. v. Van- 
 dyke, 2 Whart. (Pa.) 309; Green v. Bf. 
 Meth. Ep. Soc, i S. & R. (Pa.) 254; Com. 
 ■V. Penn. Ben. Inst., 2 S. & R.(Pa.) 141; 
 Com. V. Guardians of Poor, 6 S. & R. 
 <Pa.) 469; Com. V. Pike Ben. Soc, 8 W. 
 & S. (Pa.) 247: Washington Soc. v. 
 Bacher. 20 Pa. St. 425; Fuller v. Plain- 
 field Acad,, 6 Conn. 532; Barrows v. 
 Med. Soc, 12 Cush. (Mass.) 402; People 
 •u. St. Franciscus Ben. Soc, 24 How. Pr. 
 ■(N.Y.) 216; People v. N. Y. Com. Assoc, 
 18 Abb. Pr. (N. Y.)27i; Peoples. Sailors' 
 Snug Harbor, 54 Barb. (N. Y.) 532; De- 
 lacy V. Neuse River Co., i Hawks. 274; 
 State V. Georgia Med. Soc, 38 Ga. 608; 
 State V. Lusitanian Soc, 15 La. Ann. 
 73; People V. Mech. Aid Soc, 22 Mich. 
 S5; State v. Chamber of Commerce, 20 
 Wis. 68; Soc. v. Com., 52 Pa. St. 125; 
 
 Com. V. Soc, 2 Binn. (Pa.) 441; Com. v. 
 Franklin Ben. Soc, 10 Pa. St. 357; Com. 
 ■V. German Soc, 15 Pa. St. 251; Evans 
 V. Phila. Club, 50 Pa. St. 107; Cook v. 
 College of Physicians, 9 Bush (Ky.), 541. 
 
 But in People v. Board of Trade, 80 111. 
 134, it was said that the courts will not in- 
 terfere to control the manner of enforcing 
 the by-laws of purely voluntary associa- 
 tions, organized, not for the prosecution 
 of a business, but only for inculcating 
 certain principles among the members, 
 such as a board of trade. An expelled 
 member of such an association cannot 
 be restored by mandamus. As to inter- 
 ference by certiorari or injunction, see 
 Gregg V. Med. Soc, iii Mass. 185; State 
 V. Med. Soc, 38 N. J. L. 377; Thomp- 
 son V. Soc. of Tammany, 17 Hun, 505; 
 Baxter v. Chicago Board of Trade, 83 
 111. 146. 
 
 Members not acting in good faith for 
 the interests of the corporation are not 
 permitted to invoke the action of the 
 courts as to corporate transactions. 
 Waterbury v. Express Co., 3 Abb. N. S. 
 (N. Y.) 163; State v. Lusitanian Soc, 15 
 La. Ann. 73. 
 
 2. Lord Mansfield in Rex. v. Richard- 
 son, I Burr. 538; Rex v. Mayor of Liv- 
 erpool, 2 Burr. 732; Rex v. Mayor of 
 Derby, Cas. Temp. Hardw. 154; Com. i/. 
 St. Patrick's Ben. Soc, 2 Binn. (Pa.) 539; 
 Evans v. Philadelphia Club, 50 Pa. St. 
 107; Society v. Com., 52 Pa. St. 125; 
 People ex. rel. Gray v. Medical Society, 
 24 Barb. (N. Y.) 570; aff. 32 N. Y. (5 
 Tiff.) 187; People ex. rel. v. N. Y. Com. 
 Assoc, 18 Abb. Pr. (N. Y.) 271; Fawcet 
 V. Charles, 13 Wend. (N. Y.) 473; State 
 ex. rel, v. Chamber of Commerce, 20 
 Wis. 63; State ^x. rel. Danforth v. Kuehfl, 
 
 559 
 
Causes for Expulsion. 
 
 AMOTION. 
 
 General Principles;. 
 
 34 Wis. 22g; People ex. rel. v Board of 
 Trade, 45 111. ii2. See Roehler v. Mech. 
 •Aid. See. , 22 Mich. 85. - 
 
 Indictable Offences. — Where the offence 
 is of an indictable nature, the corporation 
 cannot expel unless there has been a 
 previous conviction before a jury. Leech 
 V. Harris et al., 2 Brewst. (Pa.) 571; 
 Comm. V. St. Patrick's Soc, 2 Binn. 
 (Pa.) 448. See Society for Visitation of 
 Sick V. Meyer, 52 Pa. St. 125. 
 
 Breach of By-Laws. — Where the by-laws 
 are simply declaratory in their nature of 
 what a member's duty would be without 
 them, a breach of them is of course suffi- 
 cient cause of disfranchisement. Some- 
 times, however, the by-laws go further 
 and provide specific duties, a breach of 
 which is to be visited with expulsion. 
 Hibernia Fire Engine Co. v. Common- 
 wealth, 93 Pa. St. 264; People ex rel. v. 
 Medical Society, 24 Barb. (N. Y.) 570; 
 Dawkins v. Antrobus, L. R. 17 Ch. Div. 
 615. 
 
 Such by-laws are valid if they are rea- 
 sonable. Evans v. Philadelphia Club, 
 50 Pa. St. 107. And not contrary to 
 public policy. People ex rel. v. Medical 
 Society, 24 Barb. (N. Y.) 570; People 
 ex rel. V. N. Y. Benevolent Society, 3 
 Hun (N. Y.), 361. 
 
 A breach of duties prescribed by the 
 by-laws before becoming a member of a 
 corporation does not warrant expulsion. 
 People ex rel. v. Medical Society, 32 N. 
 Y. 187. 
 
 Beneficial Associations. — Any act which 
 amounts to a fraudulent attempt to pro- 
 cure benefits not properly due warrants 
 expulsion. Woolsey v. Independent Or- 
 der of Odd Fellows, i Am. & Eng. Corp. 
 Cas. 172; Society for the Visitation of 
 the Sick v. Commonwealth, 52 Pa. St. 
 125; Commonwealth v. Philanthropic 
 Society, 5 Binn. (Pa.) 486. 
 
 So also does a failure to pay dues. 
 Hibernia Fire Engine Co. v. Common- 
 wealth, 93 Pa. St. 264; Hussey v. Galla- 
 gher, 61 Ga. 86. But see People ex rel. 
 V. Fire Department, 31 Mich. 458. 
 
 So also does the incurring of a danger 
 forbidden by the by-laws. Franklin Ben- 
 eficial Assoc. V. Commonwealth, 10 Pa. 
 St. 357- 
 
 Trivial causes are insufficient to war- 
 rant expulsion. People ex rel. v. St. 
 Franciscus Beneficial Society, 24 How. 
 Pr. (N. Y.) 216; Commonwealth v. St. 
 Patrick's Ben. Soc, 2 Binn. (Pa.) 440. 
 
 A refusal to pay dues after an illegal 
 suspension does not warrant an expul- 
 sion. People ex rel. v. N. Y. Ben. Soc, 
 3 Hun (N, Y.), 361. 
 
 Social Clubs. — The publication by a 
 
 member of ii social club of a libellous 
 pamphlet on another member warrants- 
 his expulsion. Dawkins v. Antrobus, L. 
 R. 17 Ch. Div! 615. 
 
 But the striking of one member of a 
 club by another in the bar-room on con- 
 siderable provocation does not warrant 
 expulsion. Evans v. Philadelphia Club, 
 50 Pa. St. 107; H. Labouchere v. Earl 
 of Wharnclifle, L. R. 13 Ch. Div. 3461;, 
 Hopkinson v. Mai'quis of Exeter, L. R. 
 5 Eq. 63. 
 
 Commercial Societies. — These are usu- 
 ally intended to maintain a high standard 
 of honor in trade, or to regulate the 
 transactions of business so as to promote 
 the, convenience of the members and of 
 the community in general. Any de- 
 parture from the strict code of honor in 
 the transaction of business warrants ex- 
 pulsion from such a corporation. Dick- 
 enson V. Chamber of Commerce, 29 Wis. 
 45; People ex rel, v. Board of "Trade, 45 
 III. 112; People ^jr «/. Thacher w. N.Y. 
 Comm. Assoc, 18 Abb. Pr. (N. Y.) 271; 
 Moxey's Appeal, 9 Weekly Notes of 
 Cases (Phila.), 441. 
 
 So a departure on the part of any of 
 the members from the rules laid down 
 for the transaction of business constitutes 
 ground for expulsion. State ex rel. v. 
 Chamber of Commerce, 47 Wis. 670; 
 People ex rel. ' v. N. Y. Board of Fire 
 Underwriters, 7 Hun (N. Y.), 248. 
 
 As a rule, a refusal to submit to the 
 arbitration of a board nominated by the 
 society does not constitute sufficient 
 ground for e;xpulsion, at least if the rule 
 be unreasonable in its nature. Savannah 
 Cotton Exchange v. State, 54 Ga. 668; 
 State ex rel. v. Chamber of Commerce, 
 20 Wis. 63; People ex rel. v. N. Y. Cotton 
 Exchange, 8 Hun (N. Y.), 216;, White v. 
 Brownell, 2 Daly (N. Y.), 329. 
 
 Medical Societies. — Any behavior 
 grossly improper on the part of a med- 
 ical man warrants expulsion from such 
 societies. Ex pcerteVaSne.,! Hill (N.Y. ), 
 665; Barrows w. Medical Society, 12 
 Cush. (Mass.) 402. 
 
 But it is not sufficient cause for expul- 
 sion that a member charges a less fee 
 than is established by the society's tariff. 
 People ex rel. Gray v. Medical Society, 
 32 N. Y. 187. Or that he has advertised 
 a patent medicine. People ex rel. v. Med- 
 ical Society, 32 N. Y. 187. Or that he 
 has presented an insufficient diploma. 
 Fawcett v. Charles, 13 Wend. (N. Y.) 
 473. And see State z*. Georgia Medical 
 Society, 38 Ga. 608. 
 
 Beligious Societies. — The charters of 
 such corporations usually specify that the 
 members thereof shall be only persons 
 
 560 
 
"Who has Power to Expel. 
 
 AMOTION. 
 
 Mode of Expulsion. ' 
 
 5. Who ias Power to Expel. — The power of disfranchisement and 
 amotion, unless it has been expressly confided to a particular 
 person or class, is to be exercised by the corporation at large, and 
 not by the person or class in whom the right of appointing or 
 admitting is vested.^ Where the charter while giving the power 
 vof amotion is silent as to whom the power may vest in, the cor- 
 poration may, by a by-law, place it in the hands of a select body.* 
 
 6. Mode of Expulsion. — This must be by an actual and formal 
 vote of the body in whom the power is vested.^ 
 
 of a particular religious body. German 
 Reformed Church v. Seibert, 3 Pa. St. 
 •282. 
 
 Where this is the case the corporation 
 generally has power to decide who is a 
 member of such religious body, and has 
 full authority to expel for non-conformity 
 or immorality. Gartin v. Penick, g Am. 
 L. Reg. (N. S.) 210. See, however. Peo- 
 ple ex rel. v. St. Stephen's Church, 53 N. 
 Y. 103; Sale V. First Regular Baptist 
 Church, I Am. & Eng. Corp. Cas. 769. 
 
 Other Societies — As to what constitutes 
 sufficient cause for expulsion from socie- 
 ties other than the above, see Common- 
 wealth V. Guardians of the Poor, 6 S. & 
 R. (Pa.) 469; Fuller v. Plainfield Aca- 
 demic School, 6 Conn. 532; Murdock's 
 Case, 7 Pick. (Mass.) 303; People ex rel. 
 V. Sailor's Snug Harbor, 54 Barb. (N. Y.) 
 532. 
 
 Social, Beneficial, and Commercial Socie- 
 ties in Illinois and Maryland. — In those 
 States the law seems to be that such soci- 
 eties may expel their members at pleas- 
 ure, provided there is no mala fides and 
 the court will not interfere. Anacosta 
 Tribe of Red Men v. Murbach, 13 Md. 
 ■gi; People ex rel. Price v. Board of 
 Trade, 80 111. 134. But see Ba'xter v. 
 Board of Trade, 83 111. 147; Sturges v. 
 Board of Trade, 86 III. 441. 
 
 This is the present state of the law as 
 to unincorporated societies. Moxey's 
 Appeal, 9 Weekly Notes of Cases (Phila.), 
 441; White V. Brownell, i Daly (N. Y.), 
 329; People ^J? re/. Dilcheri'. St. Stephen's 
 •Church, 53 N. Y. 103; Smith v. Neilson, 
 18 Vt. 511; Innes v. Wylie et al., 1 Can. 
 & K. 257; Blisset V. Daniel, 10 Hare, 
 493; Hopkinson v. Marquis of Exeter, 
 L. R. 5 Eq. 63; Fisher v. TCeene, L. R. 
 II Ch. Div. 353; Labouchere v. Earl of 
 Wharncliffe, L. R. 13 Ch. Div. 346; 
 Dawkins w. Antrobus, L. R. 17 Ch. Div. 
 •615. 
 
 1. The King w. Lyme Regis, Douglas, 
 153; Rex V. Doncaster.Say, 38, 249; Rex 
 V. Ponsonby, i Kenyon, 29; Rex v. Ox- 
 ford, Palm. 452. 
 
 2, At common law the corporate body 
 
 alone can expel. Weber w. Zimmerman, 
 22 Ind. 156. 
 
 The by-laws may, however, delegate - 
 such power to a select number of the 
 members, as to a committee. Haddock's 
 Case, T. Raym. 239; Rex v. Knight, 4 
 I. R. 429; Green v. African Methodist 
 Episcopal Soc, 1 S. & R. (Pa.) 254; Hus- 
 sey V. Gallagher, 61 Ga. 86; People ex 
 rel. V. Board of Trade, 45 III. 112; People 
 ex rel. v. N. Y. Commercial Assoc, 18 
 Abb. Pr. (N. Y.) 271: White v. Brownell, 
 2 Daly (N. Y.), 329. But see, contra. State 
 ex rel. v. Chamber of Commerce, 20 Wis. 
 63, where such right is denied unless 
 there be a provision in the charter allow- 
 ing it. 
 
 The power of expulsion cannot in any 
 case be delegated to a single officer. 
 Hibernia Fire Engine Co. v. Comm., 93 
 Pa. St. 264; People ex rel. v. Fire De- 
 partment, 31 Mich. 458. 
 
 3. State ex rel. Linley v. Bryce, 7 
 Ohio, 414; Harmstead iv. Washington 
 Fire Co. ei al, 8 Phila. 331; Sibley v. 
 Carteret Club of Elizabeth, 40 N. J. L. 
 295; Delacey v. Neuse River Navigation 
 Co., I Hawks (N. C), 274; Doremus v. 
 Dutch Reformed Church, 2 Green's Ch. 
 (N. J.) 332- 
 
 The body must not be a prejudiced 
 one. Smith v. Nelson, 18 Vt. 511. 
 
 Every member must be notified of the 
 time and place of meeting. Weber v, 
 Zimmerman, 22 Md. 156. 
 
 The trial must be fair and just. Mur- 
 dock's Case, 7 Pick. (Mass;) 303; Mur- 
 dock V. Phillips Academy, 12 Pick. 
 (Mi'SS.)244; State v. Adams, 44 Mo. 570. 
 
 The offence must also be proved, even 
 if the accused fails to appear or makes no 
 defence. People v. Young Men's Father 
 Matthew Ben. Soc, 65 Barb. (N. Y.) 357. 
 
 Where a member has once been tried 
 and acquitted, he cannot be again tried 
 and expelled for the same offence. Com- 
 monwealth V. Guardians of the Poor, 6 
 S. & R. (Pa.) 469. 
 
 But if he has been tried and expelled 
 irregularly, the corporation may proceed 
 to try him anew, and to expel him in a 
 
 561 
 
Expelling Corporator, 
 
 AMO TION. Remedy for Illegal Expulsion. 
 
 7. In Expelling Corporator Provisions of Charter and By-laws must 
 be Complied with. — Where the power of expulsion is granted by the 
 charter, and the method in which it shall be exercised is there laid 
 down, the provisions of the charter must be strictly complied 
 with.*- 
 
 8. Eemedy for Illegal Expulsion. — The remedy of a member who 
 claims to have been illegally expelled from a corporation is a writ 
 of mandamus.'^ 
 
 proper and legal manner. State ex rel, 
 V. Chamber of Commerce, 47 Wis. 670. 
 
 Non-user does not Forfeit Bights of Cor- 
 porator. — A mere non-user does not for- 
 feit the right of a corporator in a body 
 politic. State v. Trustees of Vincennes 
 University, 5 Ind. 77. 
 
 Unless there be a specific provision to 
 that effect in the charter. Croker v. Old 
 South Society, 106 Mass. 4S9. 
 
 1. Commonwealth v. Pike Beneficial 
 Society. 8 W. & S. (Pa.) 247. 
 
 The by-laws may also prescribe the 
 mode in which a member may be ex- 
 pelled. Commonwealth v. German So- 
 ciety, 15 Pa. St. 251; State v. Trustees 
 of Vincennes University, 5 Ind. 77; 
 People ex rel. v. American Institute, 44 
 How. Pr. (N. Y.)468. 
 
 In such case tlie provisions of the by- 
 laws must be strictly complied with. 
 Commonwealth v. Guardians of the Poor, 
 6 S. & R. (Pa.) 469; Washington Bene- 
 ficial Society v. Bacher, 20 Pa. St. 425; 
 Society for the Visitation of the Sick v. 
 Commonwealth, 52 Pa. St. 125; Southern 
 Plank Road Co. v. Hixon, 5 Ind. 165; 
 Weber et al. v. Zimmerman. 22 Ind. 156; 
 People ex rel. Godwin v. American In- 
 stitute. 44 How. Pr. (N. Y.) 468; Savan- 
 nah Cotton Exchange w. State, 54 Ga. 
 668. 
 
 2, Mandamus the Bemedy for Illegal 
 Expulsion, — Where a member of a cor- 
 |)oration is illegally expelled, his proper 
 remedy is a writ of mandamus to resiore 
 him to his rights. Evans v. Philadel- 
 phia Club, 50 Pa. St, 107; Hibernia Fire 
 Engine Co. v. Commonwealth. 93 Pa, St. 
 264; State V. Georgia Medical Society, 33 
 Ga. 608; Hussey v. Gallagher, 61 Ga. 86; 
 State V. Lusitanian Portuguese Soc, 15 
 La. Ann. 73; Sibley v. Carteret Club of 
 Elizabeth, 40 N, J. L. 295; Union Church 
 of Africans v. Saunders, I Houst. (Del.) 
 100; Delacey v. Neuse River Nuv. Co., i 
 Hawks. (N. Car.) 274; People v. Mechan- 
 ics' Aid Society, 22 Mich. 86; People v. 
 Board of Trade, 45 111. 112; Fuller v. 
 Plainfield Academic School, 6 Conn. 532; 
 People V. Medical Society, 24 Barb. 
 (N. Y.) 570. But see Cook v. College of 
 Physicians, g Bush (Ky.), 542. 
 
 The court is always slow to grant the 
 writ. Hussey et al. v. Gallagher, 61 
 Ga. 86. 
 
 It will not do so if there be any other 
 adequate remedy. Harrison et al. <j. 
 Simonds et al.., 44 Conn. 318. 
 
 When Corporator is Entitled to Manda- 
 mus. — In order to establish his right 10 a 
 writ of mandainus in the above case the 
 corporator must show that he has been 
 legally elected. Diligent Fire Engine 
 Co. V. Commonwealth, 75 Pa. St. 291. 
 
 And that he has actually been disfran- 
 chised. Croker v. Oli South Society, 
 106 Mass. 489; People v. St. Stephen's 
 Church, 53 N. Y. 103. 
 
 A person who has brought a suit for 
 damages for an illegal expulsion is held 
 to have waived his right to a mandamus. 
 State V. Lipa, 28 Ohio St. 668. 
 
 Where an opportunity is afforded to 
 an expelled member co appeal from the 
 action of the body expelling him to 
 another erected by the corporation, he 
 must do so before having resort to the 
 courts. German Reformed Church v. 
 Seibert, 3 Pa, St, 282; White i/. Brownell, 
 2 Daljr (N. Y.), 329. 
 
 Practice in Mandamus Cases. — The 
 court will issue in the first instance a 
 writ of alternative mandamus. Sleeper 
 V. Fi-anklin Lyceum, 7 R. I, 523, 
 
 The return to this must be full and cer- 
 tain, and, to warrant a judgment for re- 
 spondent, must contain a perfect justifica- 
 tion. Green v. African M. E. Society, 
 I S. & R. (Pa.) 254; Society for the Visi- 
 tation of the Sick v. Commonwealth, 52 
 Pa. St. 125; People v. Mechanics' Aid 
 Society, 22 Mich. 86. 
 
 If the return is defective, no opportu- 
 nity will be afforded to amend. People 
 V. American Institute, 2 N, Y. Leg. Obs; 
 170, 
 
 The relator may elect either to rely on 
 the insufficiency of the return, or to trav- 
 erse it, but, having elected, is bound by 
 the decision. State v. Lusitanian Portu- 
 guese Society, 15 La. Ann, 73. 
 
 Belief in Equity — Equity will not in- 
 terfere to prevent the illegal expulsion of 
 a member of a corporation. Gregg v. 
 Massachusetts Medical Society, III 
 
 502 
 
AMOTION— AMOUNT— AMOUNT IN CONTROVERSY. 
 
 AMOUNT. — This word is usually used in reference to the 
 amount necessary to give jurisdiction on appeal or writ of error.i 
 (See also APPEAL.) 
 
 AMOUNT IN CONTROVEKSY. 
 
 elusive of costs.** 
 
 -The principal sum sued for, ex- 
 
 Mass. 185; Sturges V. Board of Trade, 
 86 III. 441; Baxter v. Board of Trade, 83 
 111. 147. 
 
 Equity will also decline to grant a 
 mandatory injunction to restore an ille- 
 gally expelled corporator. Fisher v. 
 Board of Trade, 80 111. 85. 
 
 What Court will Consider, — Where a 
 court is called to pass upon the question 
 of the expulsion of a member of a corpo- 
 ration, it seems that the finding of the 
 corporation that he has been guilty of 
 the offence in question is conclusive. 
 State ex rel. v. Chamber of Commerce, 47 
 Wis. 670; Sale v. First Regular Baptist 
 Church. I Am. & Erjg. Corp. Cas. i6g; 
 Woolsey v. Independent Order Odd Fel- 
 lows. I Am. & Eng. Corp. Cas. 172. 
 
 Where the offence is not specified by 
 the by-laws as a cause of expulsion, the 
 court will simply consider whether or 
 not it is so injurious lo the interests of 
 the corporation as to warrant the offend- 
 er's expulsion. Commonwealth v. Guar- 
 diarts of the Poor, 6 S. & R. (Pa.) 469; 
 Barrows v. Medical Society, 12 Cush.' 
 (Mass.) 402; Fuller v. Plainfield Aca- 
 demic School. 6 Conn. 532; Savannah 
 Cotton Exchange v. State, 54 Ga. 668; 
 Fawcett v. Charles, 13 Wend. (N. Y.)473; 
 People ex rel. v. St. Stephen's Church, 53 
 N. Y. 103; People ex rel. v. N. Y. Cotton 
 Exchange. 8 Hun (N. Y.), 216; Ex parte 
 Paine, i Hill (N. Y.), 665. 
 
 If the offence is specified in the by- 
 laws as a cause of expulsion, the court 
 will consider whether the duties imposed 
 by the by-laws are reasonable, and 
 whether their violation is so injuriojis to 
 the corporation as to warrant the imposi- 
 tion of the penalty of expulsion. People 
 V. Board of Trade, 45 111. 112; Pulford v. 
 Fire Department, 31 Mich. 458; Dickin- 
 son V. Chamber of Commerce, 29 Wis. 
 45; State V. Chamber of Commerce, 20 
 Wis. 63; State w. Chamber of Commerce, 
 47 Wis. 670; Hussey v. Gallagher, 61 Ga. 
 86; State v. Georgia Medical Society, 38 
 Ga. 608; Franklin Ben. Society v. Com- 
 monwealth, 10 Pa. St. 357; Common- 
 wealth V. St. Patrick's Ben. Soc, 2 Binn. 
 (Pa.) 440; Evans v. Philadelphia Club, 
 50 Pa. St. 107; Society for the Visitation 
 of the Sick v. Commonwealth, 52 Pa. 
 St. 125; Hibernia Fire Engine Co. v. 
 Commonwealth, 93 Pa. St. 264; People 
 
 V. N. Y. Benevolent Soc, 3 Hun (N. Y.), 
 361; People V. N. Y. Board of Fire 
 Underwriters, 7 Hun (N. Y.), 248; Peo- 
 ple v. Medical Society, 32 N. Y. 187; 
 People V. ■ Medical Society, 24 Barb. 
 (N. Y.) 570; People v. Sailor's' Snug Har- 
 bor, 54 Barb. (N. Y.) 532; People v. St. 
 Franciscus Benevolent Association, 24 
 How. Pr. (N. Y.) 2ife. 
 
 The court will also construe the mean- 
 ing of the by-laws. State z/. Chamber of 
 Commerce, 20 Wis. 63; Dickinson v. 
 Chamber of Commerce, 29 Wis. 45; 
 Franklin Beneficial Society v. Common- 
 wealth, 10 Pa. St. 337; People v. N. Y. 
 Commercial Assoc, 18 Abb. Pr. (N. Y.) 
 271. 
 
 And will decide whether the particular 
 offence in question comes within the 
 meaning of the by-laws. State v. 
 Georgia Medical Society, 33 Ga 608; 
 People V. Sailors' Snug Harbor, 54 Barb. 
 (N. Y.) 532. 
 
 Even though the by-law in question is 
 in general reasonable, and the particular 
 offence is within its scope, yet. if it be 
 not injurious to the true interests of the 
 corporation, the expulsion is not war- 
 ranted. People V. Mechanics' Aid Soci- 
 ety, 22 Mich. 86; Evans v. Philadelphia 
 Club, 50 Pa. St. 107. 
 
 See, generally, Sale v. First Regular 
 Baptist Church, I Am. & Eng. Corp. Cas. 
 169; Woolsey v. Independent Order of 
 Odd Fellows, i Am. & Eng. Corp. Cas. 
 172. 
 
 Authorities for Amotion. — Dillon's Mun. 
 Corp. (3d Ed.) § 238 ; Bouvier's Law 
 Lex. (15th Ed.). "Amotion;" WiUc Mun. 
 Corp. 270; 2 Kyd on Corp. 50-94; Grant 
 on Corp. 250; Glover on Corp. ch. xvi. 
 pp. 327, 328; Angell & Ames on Corp. 
 § 408; Burrill's Law Diet., " Amotion." 
 
 1. Bach V. Jefferson, 2 La. Ann. 163; 
 Winston v. U. S., 3 How. 771; State of 
 La. ex rel. v. The Judge, etc., 21 La. Ann. 
 65 ; Gayarre v. Hays, 21 La. Ann. 307. 
 
 Whole Amount of Capital Stock. — These 
 words, as used in the act authorizing the 
 taxation of stockholders in bank, have 
 reference to the value of the stock, not 
 the amount of nominal capital. People 
 ex rel. v. Commissioners, 69 N. Y. 91. 
 
 2. Bradley ^^ a/, v. Kent, 22 Cal. 169; 
 Maxfield v. Johnson, 30 Cal. 545; La. 
 ex rel. v, Lagarde, 21 La. Ann. 18; La. 
 
 563 
 
AMUSEMENT— ANALOGOUS— ANCESTOR— ANCHOR. 
 
 AMUSEMENT.— Diversion, recreation. * 
 AIT ALOQOTJS. — Containing the material constituents.'-* 
 ANCESTOR. (See also DESCENT ; Heir ; INHERITANCE ; PRE- 
 DECESSOR.) — One from whom an estate is inheritable.^ The 
 technical meaning of the word must be clearly distinguished 
 from its use in common parlance.* Ancestor is, however, some- 
 times used to denote a person in the ascending line of kindred, 
 and we have the distinguishing words " ancestral and collateral 
 inheritances." ^ 
 
 ANCHOR. — An instrument for holding a vessel or other floating 
 body. Used in law in the words, Anchor-watch, Anchorage, 
 Lying at anchor. •• 
 
 ex rd. V. The Judge, etc., 22 La. Ann. 
 49; Moore, etc., v. Boner, 7 Bush (Ky.), 
 26; Finked al. v. Denny ^^ a/., 75 Va. 663. 
 
 1. A statute prohibiting any public 
 show, amusement, etc., without a license 
 -does not apply to a school for instruction 
 in dancing, although admittance thereto 
 is paid for on each evening. Am. v. Gee 
 .and another, 6 Cush. (Mass.) 175. 
 
 But an aquarium filled with glass tanks 
 for the exhibition of marine fish and ani- 
 mals is a place of amusement. War- 
 ner V. The Brighton Aquarium Co., L. 
 R. 10 Ex. 2gi. 
 
 2. A statute said analogous forms may 
 be used, that is, those that contain every 
 material constituent. Smith v. The State, 
 ■63 Ga. 58. 
 
 3. In interpreting the statute of 1831, 
 regulating descents and the distribution of 
 personal estates, in Ohio, the court said, 
 Warden, J.: " That the word ' ancestor,' 
 as used in this act, is not to be under- 
 stood as when used in common parlance, 
 is well settled in Ohio." " The ancestor 
 meant by our statute is any one from 
 whom the estate is inheritable, and the 
 ancestor from whom it must in law be 
 understood " to have come to the intes- 
 tate ' is he from whom it was immediately 
 inherited." Prickett v. Parker, 3 Ohio 
 St. 394- 
 
 4. "In most of our English dictionaries 
 the word ' ancestor ' is defined to be ' one 
 from whom a person descends,' and some 
 ■of the law dictionaries agree substantially 
 in this definition. But this is its popular 
 and not its legal meaning. Mr. Burrill 
 in his law dictionary defines it as, ' The 
 person last seized of an estate of inheri- 
 tance and from whom such estate is trans- 
 mitted to the heir." Ruggles, C. J., 
 McCarthy v. Marsh, i Selden (N. Y.), 
 263, 275. See Banks v. Walker, 3 Barb. 
 Ch. (N. Y.) 438. 
 
 The term "ancestor" means merely 
 the: person from whom the estate passes. 
 
 and not a progenitor as in popular ac- 
 ceptance. Bailey v. Bailey, 28 Mich. 
 185. 
 
 5. Stat. 3 and 4 William IV. c. 106; i 
 Stephen's Com. 257, note (6); 4 Kent's 
 Com. 404. " The term ' ancestor' is used 
 in its proper sense, and designates the 
 immediate and not the remote source of 
 the intestate's title." "Ancestors, de- 
 rived from antecessores designates the as- 
 cendants of the intestate in the right 
 l.ine, and does not include collateral rel- 
 atives as brothers and sisters." Valen- 
 tine V. Wetherill, 31 Barb. (N. Y.) 655. 
 See Pierson v. De Hart, Pennington 
 (N. J.), 363. 
 
 In Indiana the term "ancestor" has 
 been defined as embracing all persons 
 from whom a title by descent could be 
 derived; that is, to be synonymous with 
 "kindred, " and not strictly correlative with 
 "heir." Greenlee v. Davis', ig Ind. 60. 
 
 It means any one from whom the estate 
 is immediately inherited. Murphy v. 
 Henry, 35 Ind. 442. See Wheeler ■</. 
 Clutterbuck, 52 N. Y. 67; Clark v. 
 Shailer, 46 Conn. 119; Buckingham v. 
 Jacques, 37 Conn. 402. 
 
 In Massachusetts the word "ancestor'' 
 as used in the statute of descents is de- 
 clared to refer only to the ancestors in 
 the direct ascending line. Pratt v. At- 
 wood, 108 Mass. 40. 
 
 6. Anchor-watcli. — Defined by Totten 
 in the Naval Text-book and Dictionary, 
 p. 443, as " a watch of three or four men 
 kept constantly on deck, and stationed at 
 one of the anchors, while riding at single 
 anchor, to see that the stoppers, painters, 
 cables, and buoy ropes are ready for im- 
 mediate use;" by Dana in his Diction- 
 ary of Sea Terms, p. 129, as "a small 
 watch of one or two men kept while in 
 port." It is not the duty of such a watch 
 to take any active measures to get his 
 vessel out of the way of an approaching 
 vessel in broad daylight when the ap- 
 
 564 
 
Sefinition. 
 
 ANCIENT DOCUMENTS. 
 
 Authentication. 
 
 ANCIENT DOCUMENTS.— 1. Definition.— Those more than thirty 
 years old.'- 
 
 2. Authentication, — Ancient documents, on their face free from 
 suspicion, and coming from a proper custody, are admissible in 
 evidence without proof of authenticity.'-* 
 
 preaching vessel is under full command, 
 •nor even to hail the approaching vessel 
 in order to avoid a collision. The Lady 
 Franklin, 2 Lowell, 220. 
 
 Anchorage. — Defined by Lord Hale, 
 De Portibus Maris, 74, to be "a presta- 
 tion or toll for every anchor cast there, 
 and sometimes though there be no an- 
 chor. Held to exist against a vessel 
 anchoring even two miles from shore 
 <otherwise than in case of necessity aris- 
 ing from distress), where the evidence 
 showed a grant of legal origin of the bed 
 of the sea anchored in for the purpose of 
 oyster-dredging. Free Fishers v. Gann, 
 106 English Common Law Rep. 852. 
 
 Lying at Anchor. — A vessel fastened 
 to a pier-head is not "lying at anchor," 
 and therefore is not liable for wharfage 
 tinder the provision of the act i860 
 |(chap. 254, Laws i860, amended by chap. 
 405, Laws 1875) which authorizes the 
 collection of "half the usual wharfage 
 for every vessel lying at anchor within 
 any slip, although the vessel, attached to 
 an adjacent pier, occupies the greater 
 part of the slip between the piers." Walsh 
 ■V. New York Floating Dry-dock Co., 77 
 N. Y. 448. 
 
 A vessel beached is not " lying at an- 
 chor," and her owner cannot recover for 
 her destruction while so beached on a 
 policy of insurance which covers her 
 while plying, etc., or while "lying at 
 anchor," or at any bulkhead, dock, or 
 pier. 19 Hun (N. Y.), 284. 
 
 1. Bouvier's Law Diet; Whitman v. 
 Henneberry, 73 111. 109; M'Gennis v. Al- 
 lison, 10 Se'rg. & R. (Pa.) 197, 199; Cal- 
 thorpe V. Gough, 4 T. R. 707, u. a., 709; 
 Jackson v. Blanshan, 3 John. (N. Y.) 
 292, 298. 
 
 A deed only twenty-four years old is 
 not "ancient." Mapes v. Leal, 27 Tex. 
 
 345- 
 
 Documents more than thirty years old at 
 the date of the trial are "ancient," al- 
 though less than thirty years old at the 
 date of the commencement of the suit. 
 Gardner v. Grannis, 57 Ga. 539; Bass v. 
 Sevier, 58 Tex. 567. 
 
 To constitute a will " ancient," thirty 
 years must have elapsed from the date 
 of possession taken under it; thirty years 
 from the date of its execution is not suf- 
 ficient. Jackson v. Blanshan, 3 John. 
 (N. Y.) 292, 298 (per Kent, C. J., and 
 
 Van Ness, J.; Spencer, J., dis%); Shaller 
 V. Brand, 6 Binn. (Pa.) 435 (per Tilgh- 
 man, C. J. ; Yeates, J., diss.). Contra, 
 Calthorpe v. Gough, 4 T. R. 701, n. a. 
 
 It seems well settled in this country 
 that a document will not be treated as 
 "ancient," and proof of authenticity or 
 execution dispensed with, unless it is 
 shown to be more than thirty years old. 
 It is not enough that it purports to be 
 more than thirty years old. Fairly v. 
 Fairly, 38 Miss. 280; Clark v. Owens, 
 18 N. Y. 434; Whitman v. Henneberry, 
 73 111. log. Contra, see Anderson v. 
 Watson, 6 Bing. N. C. 296; Davies v. 
 Lowndes, 7 Scott N. R. 213; i Stark 
 Evid. (loth Am. ed.) 521; Steph. Evid. 
 art. 88, which holds that it is enough if 
 the document purport to be more than 
 thirty years old. 
 
 In Quinn v. Eagleston, 108 III. 248, it 
 was held that proof that the deeds in 
 question, purporting to be "ancient," 
 had been on record twenty-nine years, 
 and that a deed subsequently dated, and 
 dependent upon them, had been on rec- 
 ord more than forty years, was sufficient 
 proof that they were " ancient." 
 
 Where a document is old, but less than 
 thirty years old, its execution must be 
 regularly proved. But in such a case, if 
 the document is attested and is proved 
 by one of the witnesses, its age will tend 
 to excuse the strictest accounting for the 
 absence of the other witnesses. Wallis v. 
 Delancy, 7 T. R. 266 n. See also Jackson 
 V. Burton, 11 John. (N. Y.) 64: Thomas 
 V. Horlocker, i Dall. l8. In Everly v. 
 Stoner, 2 Yeates (Pa.), 122, proof of ex- 
 ecution by the subscribing witnesses was 
 dispensed with in case of a deed only 
 twenty-eight years old, although no rea- 
 son was given for not producing them. 
 
 2. Beall V. Dearing. 7 Ala. 124; Doe 
 V. Eslava, 11 Ala. 1028; Carter v. Chau- 
 dron, 21 Ala. 72; Doe v. Roe, 31 Ga. 
 593; Weitman v. Jhiot, 64 Ga. 11; Hen- 
 thorn V. Doe, I Blackf. Ind. 156; Winston 
 V. Gwathmey's Heirs, 8 B. Mon. (Ky.) 
 19; Hedger v. Ward. 15 B. Mon. (Ky.) 
 106; Crane v. Marshall, 16 Me. 27; Good- 
 win V. Jack, 62 Me. 414; Stockbridge v. 
 Stockbridge, 14 Mass. 257; Tolman v. 
 Emerson, 4 Pick. (Mass.) 160; Zeigler v. 
 Houtz, I Watts & S. (Pa.) 533; Duncan 
 V. Beard, 2 Nott & McC. (S. Car.) 400; 
 Steph, Evid. § 88; i Stark Evid. (10 Am, 
 
 I C. of L.— 37 
 
 565 
 
Authentication. 
 
 ANCIENT DOCUMENTS. 
 
 Authentication. 
 
 Even in the case of attested documents, there need be no proof 
 of execution, either by calling the attesting witnesses, or proving 
 their handwriting, or otherwise.^ 
 
 ed.)p. 521; I Greenl. Evid. § 141 n. (14th 
 ed.); Bishop of Meath v. Marquess of 
 Winchester, 3 Bing. (N. C.) 183. 
 
 The rule stated in the text applies to let- 
 ters, receipts, etc., as well as to bonds, 
 deeds, wills, and other formally executed 
 documents. Thus, in Beer v. Ward, i 
 Stark Evid. (loth Am. ed.) 521 n. p., an 
 ancient letter was admitted in evidence 
 without proof of the writer's signature. 
 So ancient entries in a. steward's book 
 were admitted in evidence without proof 
 of handwriting. Wynne ». Tyrwhitt, 4 
 B. & Aid. 376. Accord, see also Bertie 
 V. Beaumont. 2 Price, 303; Manby v. 
 Curtis, I Price, 225 (Ancient Receipts); 
 McReynolds v. Longenberger, 57 Pa. St. 
 13 (Ancient Tax Receipt). 
 
 1. The attesting witnesses to an an- 
 cient document need not be called to 
 prove it; although living. Doe v. Wool- 
 ley, 8 B. & C. 22; Winn v. Patterson, 9 
 Pet. 663; Barr v. Gratz, 4 Wheat. 213. 
 And within the jurisdiction of the court. 
 Jackson v. Christman, 4 Wend. (N. Y.) 
 277; Hanes v. Peck's Lessee, Mart. & 
 Yerg (Tenn.) 227. And even though 
 in court. Marsh v. Colnett, 2 Esp. R. 
 665. 
 
 In legal phraseology the witnesses are 
 said to be conclusively presumed to be 
 dead. Marsh v. Colnett, 2 Esp. R. 665; 
 I Stark. Evid. (loth Am. ed.) p. 521. 
 
 In Tolmanz;. Emerson, 4 Pick. (Mass.) 
 160, it was held that the subscribing wit- 
 ness to an ancient document must be 
 called if living. 
 
 Proof of execution will be dispensed 
 with, in case of ancient documents com- 
 ing from proper custody, even in cases 
 where the documents are not upon their 
 face perfectly regular. There is said to 
 be a legal presumption in favor of the 
 valid execution of such documents. 
 Hogans v. Carruth 19 Fla. 84; Johnson 
 V. 'Timmons, 50 Tex. 521. 
 
 In Hogans v. Carruth, 19 Fla. 84, the 
 signature of .one of the grantors was in 
 the handwriting of a third person, ^proved 
 to have been present at the execution of 
 the deed, and the court presumed, in 
 favor of the validity of the deed, an oral 
 direction by the grantor to sign and seal 
 for him. 
 
 In Fleming v. Bush, 36 Hun (N. Y.), 
 456, an " ancient" deed executed by two 
 ou tof three executors was presumed to be 
 regular, the other executor having been 
 presumed to have renounced or refused to 
 
 join in the deed". The valid execution of 
 an " ancient" will was presumed in spite 
 of a defective attestation clause. Jackson 
 V. Christman, 4 Wend. (N. Y.) 277, 282. 
 
 Where an ancient parish certificate 
 purported to be executed by A as church- 
 warden, held that the court would pre- 
 sume that A had been duly sworn as 
 warden before executing the certificate. 
 Rex V. Inhabitants of Whitchurch, 7 
 Barn. & Cr. 573. 
 
 Where a deed is more than thirty years 
 old, a statute declaring that a certified 
 copy of the record of any lost instrument 
 shall be admitted in like manner as the 
 original could be, admits a copy of the 
 record without any proof of execution of 
 the deed. The regular execution of the 
 deed is apparently presumed from the 
 copy of the record. Holmes v. Coryell, 
 58 Tex. 680. 
 
 Where a deed was required to be wit- 
 nessed by two witnesses before it could 
 be recorded, it was held that the court 
 would assume, in favor of the validity of 
 an ancient record of a deed, a. copy of 
 which showing but a single witness to 
 the deed was offered in evidence, that the 
 recording clerk had omitted the name of 
 one witness. Dodge v. Briggs, 27 Fed. 
 R. 160, 170. 
 
 A seal on an ancient document, pur- 
 porting to be that of a corporation, need 
 not be proved to have been such. Hooper 
 V. Auburn Water Works Co., 37 Hun 
 (N. Y.), 568. But see Rex v. Bathwick, 
 2 B. & Ad. 639, 648. 
 
 The existence of a valid power of at- 
 torney will be presumed in favor of an 
 ancient deed, purporting to be executed 
 by an attorney. Storey v. Flanagan, 57 
 Tex. 649; Johnson a. Timmons, 50 Tex. 
 521; Doe V. Phelps, 9 John. (N. Y.) 169; 
 Doe V. Campbell, 10 John. (N. Y.) 475. 
 
 In Johnson's Admr. v. Timmons, 50 
 Tex. 521, it was held that this presump- 
 tion should be considered by the jury in 
 passing upon the fact of the existence or 
 non-existence of a legal power of attor- 
 ney, and that' it was not merely a legal 
 presumption concerning merely the ad- 
 missibility of the deed in evidence. 
 
 A deed by a married woman, insuf- 
 ficient on its face to convey her title, will 
 not become effective as an ancient deed, 
 by lapse of time. Boyle v. Chambers, 32 
 Mo. 46. 
 
 The presumption of due execution aris- 
 ing from the fact that a deed is more than 
 
 566 
 
Custody. 
 
 ANCIENT DOCUMENTS. 
 
 Fossession. 
 
 3. Custody. — The ancient document must come from a proper 
 custody, but need not come from the most proper custody.^ 
 
 4. Possession. — Proof of possession of property under or consist- 
 ently with the ancient document, where such document relates to 
 property, is not necessary to its admissibility in evidence without 
 proof of execution.* 
 
 thirty years old, does not apply to an ad- 
 ministrator's deed executed by order of 
 court. Fell v. Young, 63 111. 106. 
 
 Where a copy of the record is suf- 
 ficient proof of execution unless an affida- 
 vit of forgery is filed, the filing of such 
 an aflidavit does not compel the adverse 
 party to prove the execution of an an- 
 cient deed. Holmes v. Coryell, 58 Tex. 
 680. 
 
 It has been said that some proof may 
 be required of the authenticity of an an- 
 cient document. Smith v. Rankin, 20 
 111. 14; Fogal V. Pirro, 10 Bosw. (N. Y.) 
 100; s. c, 17 Abb. Pr. 113; Clark v. 
 Owens, 18 N. Y. 434. Although strict 
 proof is dispensed with. Coulson v. Wal- 
 ton, g Pet. 62. 
 
 In Forbes v. Wale, Wm. Blk. 532, it 
 was held that an ancient bond for the 
 payment of money, required proof of au- 
 thenticity, there having been no pay- 
 ments of interest. 
 
 1. "Documents found in a place in 
 which, and under the care of persons 
 with whom, such papers might naturally 
 and reasonably be expected to be found, 
 or in the possession of persons having 
 an interest in them, are in precisely the 
 custody which gives authenticity to docu- 
 ments found within it." i Greenl. Evid. 
 § 242. In Bishop of Meath v. Marquess 
 of Winchester, 3 Bing. (N. C.) 183, Tin- 
 dal, J. C, says that "it is obvious that, 
 while there can be only one place of 
 deposit strictly and absolutely proper, 
 there may be many and various that are 
 reasonable and probable, though differ- 
 ing in degree, some being more so, some 
 less; and in those cases (where the docu- 
 ment does not come from the most proper 
 custody) the proposition to be deter- 
 mined is, whether the actual custody is 
 so reasonably and probably accounted 
 for that it impresses the mind with the 
 conviction that the instrument found in 
 such custody must be genuine." Accord, 
 see Tolman v. Emerson, 4 Pick. (Mass.) 
 160, 162. 
 
 In Williams v. Conger, 49 Tex. 582, it 
 was held that a power of attorney con- 
 taining a power of substitution, found 
 among the papers of the deceased's sub- 
 stituted agent, comes from proper cus- 
 tody. 
 
 An ancient document, preserved among 
 certain manuscripts in the British Mu- 
 seum, does not come from a proper cus- 
 tody, and is inadmissible without authen- 
 tication. Swinnerton v. Marquis of Staf- 
 ford, 3 Taunt. 91; but see Goodwin v. 
 Jack, 62 Me. 414. 
 
 A deed thirty years old is admissible 
 as evidence without proof of its execu- 
 tion ; and when the only objection to its 
 admissibility is the failure to prove its 
 execution, the appellate court will pre- 
 sume, in favor of the ruling of the court 
 below, that the paper came from the 
 proper custody. Alexander v. Wheeler, 
 78 Ala. 167.' 
 
 2. There is a conflict of authority on 
 this point. The text is in accordance 
 with the recent decisions of the supreme 
 court of the United States in Fulkerson 
 V. Holmes, 117 U. S. 389; s. c, 6 Supr. 
 Ct. R. 780), and Applegate v. Lexington 
 and Carter County Mining Co., 117 U. 
 S. 255; s.c, 6 Supr, Ct. R. 743, and with 
 most of the more recent decisions. John- 
 son's Admr. v. Timmons, 50 Tex. 521; 
 Nowlin V. Burwell, 75 Va. 551; Caruthers 
 ■V. Eldridge, 12 Gratt. (Va.) 670; Ensign v. 
 McKinney, 30 Hun (N. Y.), 249; Harlan 
 V. Howard, 79 Ky. 373; Gardner v. 
 Grannis, 57 Ga. 539; Whitman v. Hen- 
 neberry, 73 111. 109; Hewlett v. Cock, 7 
 Wend. (N. Y.) 371; Jackson v. Laro- 
 way, 3 John. Cas. (N. Y.) 283; Brown 
 ■V. Wood, 6 Rich. (S. Car.) Eq. 155; Hol- 
 ton V. Lloyd, i MoUoy (Ir. Ch.), 30. 
 
 The following cases, on the contrary, 
 hold that proof of possession, under or 
 in accordance with the document, is in- 
 dispensable to its admissibility in evi- 
 dence without proof of execution: Bell 
 V. McCawley, 29 Ga. 355; (see Gardner w. 
 Grannis. 57 Ga. 539, supra;) Thurston v., 
 Masterson, 9 Dana (Ky.), 228; Burgin 
 V. Caenault, 9 B. Mon. (Ky.) 285; (see 
 Harlan v., Howard, 79 Ky. 373, sufra;) 
 Nixon V. Porter, 34 Miss. ^97; Waldron 
 V. Tuttle, 4 N. H. 371; Homer v. Cilley, 
 14 N. H. 85; Ridgely v. Johnson, 11 
 Barb. (N. Y.) 527; Jackson v. Luquere, 5 
 Cow. (N. Y.) 221; Willson v. Belts, 4 
 Den. (N. Y.) 201; Hoopes w. Auburn 
 Waterworks Co., 37 Hun (N. Y.), 568; 
 M'Gennis v. Allison, 10 Serg. & R. (Pa). 
 197; Shaller v. Brand, 6 Binn. (Pa.) 435; 
 
 567 
 
Handwriting. 
 
 ANCIENT DOCUMENTS. 
 
 Ownership. 
 
 5. Handwriting — Comparison of Hands. — When it becomes neces- 
 sary to prove the handwriting of an " ancient" document this may- 
 be done by a " comparison of handwritings," even in tho^e juris- 
 dictions where this method of proof is not generally allowed. ^ 
 
 6. Ownership — Old Documents constituting Acts of. — Very old docu- 
 ments, such as leases, licenses, etc., purporting to constitute acts 
 of ownership, are admissible to prove ownership.** 
 
 Thompson v. Bullock, i Bay (S. Car.), 
 364; Middleton v. Mass, 2 Nott. & McC. 
 (S. Car) 55 ; Lessee of Clarke v. Courtney, 
 5 Pet. 319; Bank of Middlebury v. Town 
 of Rutland, 33 Vt. 414; Dishazer v. Malt- 
 land, 12 Leigh. (Va.) 524. 
 
 In Applegate v. Lexington, etc., Min- 
 ing Co., 117 U.S. 255, supra. Woods, J., 
 delivering the opinion of the court, says : 
 "The rule is that an ancient deed may 
 be admitted in evidence, without direct 
 proof of its execution, if it appears to be 
 of the age of at least thirty years, vfhen 
 it is found in some proper custody, and 
 either possession under it is shown, or 
 some other coroborative evidence of its 
 authenticity, freeing it from all just 
 grounds of suspicion." This rule re- 
 quires more than that the "ancient" 
 document shall come from a proper cus- 
 tody : it requires some supplementary 
 evidence of genuineness — either posses- 
 sion or something equivalent. Accord, 
 see Jackson v. Laroway, 3 John. Cas. 
 (N. Y.)283; Hewlett v. Cock, 7 Wend. 
 (N. Y.) 371. 
 
 In Martin v. Rector, 24 Hun (N. Y.), 
 27, it was held that an ancient deed was 
 admissible after proof, either that it came 
 irom a proper custody, or that there had 
 been thirty years' possession under it. 
 Accord, see Nowlin v. Burwell, 75 Va. 
 551. 
 
 The true rule would seem to be that 
 laid down in Harlan v. Howard, 79 Ky. 
 373, supra, that proof that the deed came 
 irom a proper custody is indispensable 
 to its admissibility without proof of exe- 
 cution, but that proof of possession, or 
 other equivalent proof, is not necessary; 
 that proof of possession, etc., go to the 
 weight of the evidence with the jury, and 
 ido not bear upon the question of admissi- 
 bility. For it must be remembered that 
 the fact that a document is "ancient" 
 admits it in evidence without proof of ex- 
 ecution, but does not conclusively estab- 
 lish it. The fact of execution is for the 
 jury in the case of '^ancient " and mod- 
 ern documents alike. Harlan v. Howard. 
 79 Ky. 373; Hall u. Gittings, 2 Harr. & 
 J. (Md.) 112; Johnson v. Timmons, 50 
 Tex. 521. 
 
 In the case last cited it was said that 
 
 the presumption in favor of the regular 
 execution of an " ancient" document was 
 one of fact to be considered by the jury. 
 See also Hull v. Gittings, 2 Harr, & J. 
 (Md.) 112. 
 
 Where proof of possession is required 
 as a prerequisite to admissibility, it has 
 been held that possession for any partic- 
 ular period of time need not be proved. 
 Bank of Middlebury v. Town of Rutland, 
 33 Vt. 414; Waldron v. Tuttle, 4 N. H. 
 371; Ridgely v. Johnson, 11 Barb. (N. 
 Y.) 527. In Nixon u. Porter, 34 Miss. 
 697, it was held that possession for thirty 
 years need not be proved. In Homer v. 
 Cilly, 14 N. H. 85, it was held that pos- 
 session for thirteen years under an an- 
 cient deed was not enough to dispense 
 with proof of execution. 
 
 Jackson v. Blanshan. 3 John. (N. Y.) 
 S92, 298; Jackson v. Luquere, 5 Cow. (N. 
 Y.) 221 ; Shaller v. Brand, 6 Binn. (Pa.) 
 435i 439; Nowlin w. Burwell, 75 Va. 551, 
 all seem to hold that proof of possession 
 must be for thirty years to dispense with 
 proof of execution. But that a proof of 
 possession for a shorter time will some- 
 what relax the strictness of proof of exe- 
 cution. Jackson v. Luquere, 5 Cow. (N. 
 Y.)22l. 
 
 Proof of possession of a part of the 
 premises is sufficient. Jackson v. Lu- 
 quere, 5 Cow. (N. Y.) 221. 
 
 Where proof of possession is required, 
 an ancient document may be admitted 
 at first without proof of possession, and 
 proof of possession be afterwards sup- 
 plied. Hoopes V. Auburn Water Works 
 Co., 37 Hun (N. Y.y, 568; Burgin v Cae- 
 nault, 9 B. Mon. (Ky.) 285; Shaller v. 
 Brand, 6 Binn. (Pa.) 435. 
 
 1. Jackson v. Brooks, 8 Wend. (N. Y.) 
 426; Sweigart v. Richards, 8 Pa. St. 436; 
 Cantey v. Piatt, 2 McCord (S. Car.), 260; 
 Doe V. Tarver, Ryan & Moo. 141, 143; 
 20 Law Mag. 323; 2 Tayl. Evid. (7th Ed.) 
 
 PP- 1553-1555- 
 
 2. Malcomson v. O'Dea, 10 H. of L. C. 
 593; Rogers v. Allen, I Camp. 309; Doe 
 V. Pulman, 3 Q. B. 622; Clarkson v. 
 Woodhouse, 3 Dougl. 189; Bristow v. 
 Cormican, L. R. 3 App. Cas. 641; Boston 
 V. Richardson. 105 Mass. 351. 
 
 This paragraph (Ownership — Old 
 
 568 
 
Custody. 
 
 ANCIENT DOCUMENTS— AND. 
 
 ConstTuctions. 
 
 7. Custody. — Such documents must, however, come from a 
 proper custody.^ 
 
 ANCIENT LIGHTS. See Easement. 
 
 AND. (See also Or.) — A conjunctive particle used to connect 
 words and sentences. It is often used interchangeably with or^ 
 thp meaning being determined by the context.* 
 
 Documents constituting Acts of) has 
 no logical connection with the preceding 
 paragraphs of "Ancient Documents." 
 It relates to the purpose for which very 
 old documents are admissible, i.e., to 
 prove ownership. What precedes relates 
 merely to the authentication of ancient 
 documents in order to render them ad- 
 missible in evidence for any purpose. 
 
 In Malcomson v. O'Dea, lo H. of L. 
 Cas. 593, very old licenses to fish, granted 
 by a municipal corporation, were held 
 admissible in evidence to prove an exclu- 
 sive right of fishing in the corporation. 
 
 In Doe V. Pulman, 3 Q. B. 622, a coun- 
 terpart of a very old lease was admitted 
 as evidence of title in lessor. 
 
 In Boston v. Richardson, 105 Mass. 
 351, an old license to erect a fish-stand 
 upon a piece of land was held evidence 
 tending to show title to the land in the 
 licensor. 
 
 It is said that there must be some proof 
 that such documents have been acted 
 upon — such as proof of possession, or 
 payment of rent under them — before 
 ihey are admissible in evidence. i 
 Greenl. Evid. § 143. But the better au- 
 thority holds that such proof goes to the 
 weight of such documents as evidence, 
 not to their admissibility. Malcomson 
 V. O'Dea, 10 H. of L. C. 593; Rogers v. 
 Allen, I Camp. 309; Bristow v. Cormi- 
 can, 3 App. Cas. 641; Clarkson v. Wood- 
 house. 3 Dougl. 189; Boston v. Richard- 
 son, 105 Mass. 351. 
 
 As to the age of a document admissible 
 to show ownership, it would seem that 
 such document must be older than an 
 "ancient document," as that phrase is 
 used in regard to proof of authenticity; 
 vide supra. In most of the cases the doc- 
 uments admitted have been more than a 
 hundred years old. In Clarkson v. Wood- 
 house, 3 Dougl. 189. a lease fifty years 
 old was rejected, while leases eighty 
 years old, or more, were admitted. The 
 youngest document admitted on this 
 ground was over sixty years old. Bos- 
 ton V. Richardson, 105 Mass. 351. 
 
 It seems settled that the document 
 must be very old. Bristow v. Cormican, 
 L. R. 3 App. Cas. 641. Contra (semble), 
 see Steph. Evid. § 5. 
 
 It is to be noted that the rule admit- 
 ting very old documents, constituting; 
 acts of ownership, to prove ownership, 
 is not an exception to the hearsay rule. 
 Such documents are admissible because 
 they constitute acts of ownership, not 
 for any narrative or recital of facts 
 they may contain, i Greenl. Evid. § 141. 
 
 In some States it has been held that 
 old documents, not constituting acts of 
 ownership, but containing information 
 as to the location of private boundaries, 
 are admissible. Hathaway v. Evans, 113 
 Mass. 264; Morris v. Cullanan, 105 Mass. 
 129; Sparhawk ». BuUard, i Mete. (Mass.) 
 95; Dobson V. Finley, 8 Jones L. (N. 
 Car.) 495. These were all cases of re- 
 citals in old deeds. 
 
 In Boston Water- Power Co. v. Hanlon, 
 132 Mass. 483, ancient plottings for plans 
 and field notes made by a surveyor were 
 held inadmissible to prove boundaries. 
 The case was distinguished from that of 
 recitals in deeds on the ground that the 
 latter are contained in documents which 
 constitute transactions in reference to 
 the land. But it seems that ihe admis- 
 sion of this kind of evidence cannot be 
 explained in all cases upon the theory of 
 res gesta. In Drury v. Midland R. Co., 
 127 Mass. 571, an ancient map was ad- 
 mitted to show the boundaries of a tidal 
 creek, since filled in, in a suit between 
 private parties. See also Adams v. Stan- 
 yan. 24 N. H. 405. 
 
 The rule in the text relates to the pur- 
 pose for which old documents consti- 
 tuting acts of ownership are admissi- 
 ble. As to the necessity of proof of 
 authenticity prior to their admissibility 
 in evidence, the principles laid down un- 
 der Ancient Documents — Authen- 
 tication, supra — are applicable. 
 
 1. I Greenl. Evid. § 142; Malcomson 
 V. O'Dea, 10 H. of L. C. 593; Boston -v. 
 Richardson. 105 Mass. 351; and see, fur- 
 ther. Ancient Documents — Custody, 
 supra. 
 
 2. The grammatical sense of words is 
 not adhered to in the construction of 
 either a deed or will where a contrary in- 
 tent is apparent; and to give effect to the 
 intention of parties the word " and " may 
 be read " or." Jackson v. Topping, i 
 
 569 
 
Constrnctions. 
 
 AND. 
 
 Constructions. 
 
 Wendell (N. Y.), 388; s. c, 19 Am. Dec. 
 515. Compare Long Island R. Co. v. 
 Conklin, 32 Barb. 385; Jackson v. Blan- 
 shau, 6 Johns. (N. Y.) 54; Roome v. 
 Phillips. 24 N. Y. 463; Fairfield v. Mor- 
 gan, 5 Bos. & Pull. 38; Davis v. Board- 
 man, 12 Mass. 80 ; State v. Brandt, 41 
 Iowa, 593; State v. Smith, 46 Iowa, 670; 
 Bedford v. Wheeler, i Bing. 276; Darl- 
 ing V. Homer, 16 Mass. 288; Boag v. 
 Lewis, n U. C. Q. B. 357; Maberly v. 
 Strode, 3 Vesey, Jr. 450; Bell v. Phyn, 
 7 Vesey, Jr. 453; Ray.w. Euslin, 2 Mass. 
 554; Den t/. Taylor, '2 South. (N. J.) 413. 
 Though the copulative " and " is fre- 
 quently construed in a will as if the tes- 
 tator had used the disjunctive "or" 
 when an intention to that effect can be 
 made out. Weddell w. Mundy, 6 Vesey, 
 
 Jr- 343- 
 
 Still, this construction is not to be 
 made arbitrarily, nor in any case where 
 it is not absolutely necessary to effectu- 
 ate the testator's intention. Turner v. 
 Moor, 6 Vesey, Jr. 560; Montagu v. Nu- 
 cella, I Russ. 171; Griffith v. Woodward, 
 I Yeates, 316; Cheesman %i. Wilt, i 
 Yeates, 411; Usher v. Jessep, 12 East, 
 288; Ely V. Ely, 5 C. E. Green (N. J.), 
 44; Courter v. Stagg, 12 C. E. Green (N. 
 J.), 305; Reed -v. Braithwaite', L. R. 11 
 Eq. Cas. 514. 
 
 Thus where an insolvent act required 
 the insolvent debtor to make affidavit 
 that he had not at any time or in any 
 manner whatever disposed of or made 
 over any part of his estate for the future 
 benefit of himself or family, an affidavit 
 reading for the future'benefit of himself 
 and family was held insufficient. Hale 
 V. Sweet, 40 N. Y. 97. 
 
 So under a contract to pay in sawing 
 and lumber, where the parties cannot 
 agree upon the proportion of each the 
 court will apportion it equally, and will 
 not hold the contract fulfilled by a pay- 
 ment in lumber or sawing at the option 
 of either party. Fredenburg v. Turner, 
 37 Mich. 402. 
 
 Where a statute required that an affi- 
 davit under the attachment law should 
 state that the attachment was not sued 
 out for the purpose of injuring or harass- 
 ing the said defendant, and an affidavit 
 was made containing this language, 
 " This attachment is not sued out for the 
 purpose of injuring and harassing the 
 said defendant," it was held that a motion 
 to quash was properly sustained, the affi- 
 davit not being made in compliance with 
 the statute. Moody v. Levy, 58 Tex. 
 532. Compare Com. v. Hadcraft, 6 Bush 
 <Ky.), 91; Tompkins v. State, 4 Tex. 
 App. 161. 
 
 This principle that "and" and "or" 
 are convertible as the sense may require 
 applies to their use in statutes. Towns- 
 end V. Read, 10 C. B. (N. S.) 308 ; Bayles 
 u. Murphy, 55 III. 236 ; Eisfeld v. Ken- 
 worth, 50 Iowa, 389; Willinck t/. Morris, 
 3 Yeates, 104; People v. Sweetser, I Dak. 
 Ter. 308; Porter v. State, 58 Ala. 66; 
 Collins Granite Co. v. Devereux, 72 Me. 
 422. 
 
 And this is the rule even in a criminal 
 statute. State v. Myers, 10 Iowa, 448; 
 Miller v. State, 3 Ohio St. 476; Streeter 
 V. People, 69 111. 595. Contra, Buck v. 
 Danzenbacker, 37 N. J. Law, 359. 361. 
 
 For examples of this rule in wills, ^ee 
 Sayard v. Sayard. 7 Greenleaf (Me.), iio; 
 s. c, 22 Am. Dec. 191; Englefried v. 
 Woelpart, I Yeates, 41 ; In re Merrick's 
 Trusts, L. R. i Eq. Cas. 551. 
 
 For examples where the court has re- 
 fused to read "and " as " or," see In re 
 Sander's Trusts, L. R. I Eq. Cas. 675. In 
 re Kirkbride's Trusts, L. R. 2 Eq. Cas. 
 400; Robb V. Belt, 12 B. Monroe (Ky.), 
 643 ; Doe V. Rawding, 2 B. & Aid. 441, 
 452. 
 
 And elsewhere (in a maritime contract). 
 — Where a 'seaman's shipping articles 
 specified a voyage to ' Cura9oa and else- 
 where.' it was held that " and " was not 
 disjunctive, and that the master had no 
 election by which he might change the 
 voyage to some other port than Cura- 
 50a. Any other construction would be 
 contrary to the provisions of the act of 
 Congress which requires a specifi- 
 cation of the voyage. " The terms 
 'and elsewhere,'" says Judge Win- 
 chester, " must therefore be con- 
 strued as subordinate to the voyage spe- 
 cified, and can only authorize the pursu- 
 ing such a course as may be necessary to 
 .accomplish the principal voyage, or, in 
 other words, to import no ifiore than the 
 law would imply as incidental to the 
 main contract. Opinion on the Construc- 
 tion of Maritime Contracts, I Hall's Am. 
 Law Journal. 209. 
 
 And, in addition to that, at the com- 
 iriencement of a clause in a will, was held 
 to import the introduction of new and dis- 
 tinct matter more clearly than the old 
 word " item." Hartw. White, 26 Vt. 260, 
 And so forth, or &c,, (in a plea), held to 
 take the place of a similiter; being con- 
 strued to mean " every necessary liiatter 
 that ought to be expressed." Everitt v. 
 De Groff, i Cowen (N. Y.), 213. See 
 Sayer v. Pocock, Cowp. 407; Berton v. 
 Mandell, Cro. Jac. 67; Harris' Case, Cro. 
 Jac. 502; Reeder v. Bloom, 2 Bing. 384; 
 Wilkes V. Williams. 8 Term Rep. 631; 
 Bryan v. Bates, 15 111. 87. 
 
 570 
 
Property in Wild Animah. 
 
 ■ANIMALS. 
 
 Property in Wild Animals, 
 
 ANIMALS. (See also Accession; Bailments; Boundaries 
 AND Fences ; Fisheries ; Highways ; Master and Servant.) 
 
 1. Property in Wild Animals. 
 
 2. Property in Domestic Animals, 
 
 3. Conversion of Animals. 
 
 4. Injuries to Animals. 
 
 5. Cruelty to Animals. 
 
 6. Trespassing Animals. 
 
 General Law. 
 What is Trespass. 
 When are Owners Liable for 
 Trespassing Animals. 
 
 Who are Liable for Trespassing 
 
 Animals. 
 Rights of Strangers in Regard to. 
 
 7. Vicious Animals. 
 
 8. Injuries by Wild Animals. 
 
 9. Injuries by Dogs. 
 
 10. Diseased Cattle. 
 
 11. Stray and Runaway Horses and 
 Cattle. 
 
 12. Bailors of Animals. 
 
 13. Bailees of Animals. 
 
 1. Property in Wild Animals. — Wild animals, or animals ferce 
 naturce, belong to no one as long as they are in their wild state, 
 and property in them is acquired by occupancy only.^ 
 
 But in a bond, where added to the 
 name of one obligee, it was held ineffect- 
 ual, because descriptive of neither class 
 nor individual. Ham's Admr. v. Tin- 
 chener, 3 T. B. Monroe (Ky.), ig5. 
 
 1. Bacon's Abr. 431, 432; 2 Blacks. 
 Com. 390; Pierson v. Post, 3 Cai. (N. Y.) 
 175; s. c, 2 Am. Dec. 264. 
 
 A qualified property, however, may be 
 obtained in them by a man's reclaiming 
 them and making them tame by art, in- 
 dustry, and education, or by so confining 
 them within his own immediate power 
 that they cannot escape and use their 
 natural liberty. 2 Blacks. Com. 391. 
 
 Bees are wild animals, and until hived 
 ^nd reclaimed no property can be ac- 
 quired in them. Finding a tree on the 
 land of another containing a swarm of 
 bees, and marking the tree with the ini- 
 tials of the finder's name, even after he 
 has received a license from the owner of 
 the soil to take the bees, is not reclaim- 
 ing the bees, nor does it vest in the 
 finder any exclusive right of property in 
 them; neither can he maintain trespass 
 against a person who, under 'a subse- 
 quent license of the owner, cuts dovpn 
 the tree and carries away the bees. Gil- 
 let V. Mason, 7 Johns. (N. Y.) l5; Fergu- 
 son V. Miller, i Cow. (N. Y.) 243; s. c, 
 13 Am. Dec. 519; Idol v. Jones, 2 Dev. 
 (N. Car.) L. 162. 
 
 He may, however, maintain an action 
 against any one who, even upder a sub- 
 :sequent license, interferes while he is 
 actually engaged in cutting down the 
 tree. Adams v. Burton, 43 Vt. 30, 36. 
 
 Hived bees are the property of the one 
 who has reclaimed them, notwithstand- 
 ing a temporary escape; and as long as 
 the owner can identify them they belong 
 to him, and not to the owner of the soil 
 to which they escaped, although he can- 
 
 not enter the land to retake them without 
 committing trespass. Goff v. Kilts, ,15 
 Wend. (N. Y.) 550; Wallis v. Mease, 3 
 Binn. (Pa.) 546. 
 
 Wild geese tamed are also the prop- 
 erty of the one who tamed them; and he 
 can recover them when they stray away to 
 the land of another. Amory v. Flynn, 10 
 Johns. (N. Y.) 102; s. c, 6 Am. Dec. 616. 
 
 Doves are wild animals and not the 
 subject of larceny, unless they are in the 
 owner's custody, as in a dove-house, or 
 in the nest, before they are able to fly. 
 Com. V. Chace, 9 Pick. (Mass.) 15; s. c. , 
 ig Am. Dec. 349. 
 
 Partridges or pheasants hatched under 
 a common hen are property as long as 
 they remain with the hen. R. v. Head, 
 I F. &. F. 350; R. V. Shickle, i L. R. C. 
 C. 158; R. V. Cory, 10 Cox C. C. 23. 
 
 So are pea-fowls and domestic turkeys. 
 Com. V. Beaman, 8 Gray (Mass.), 497; 
 State V. Turner, 66 N. Car. 618. 
 
 A Buffalo captured when a calf and so 
 domesticated as to take food from its 
 master's hand, and be easily driven, is a 
 subject of property; its owner is liable 
 for trespasses, and can recover for any 
 injury done to it by another. Ulery v. 
 Jones, 81 111. 403. 
 
 But fish, unless reclaimed, confined, or 
 dead, and valuable for food, is not con- 
 sidered to be property. State v. Krider, 
 78 N. Car. 481. 
 
 Oysters, planted in a bed, clearly sepa- 
 rated and marked out, are property; and 
 one who takes them without leave of the 
 owner is liable to an action therefor. 
 Fleet V. Hegeman, 14 Wend. (N. Y.) 42; 
 Lowndes v. Dickerson, 34 Barb. (N. Y.) 
 586; Decker v. Fisher, 4 Barb. (N. Y.) 
 ' 592; State V. Taylor, 27 N. J. L. wj. 
 
 But where the buoys marking the bed 
 were carried away and had not been re- 
 
 571 
 
Property in Domestic Animals. ANIMALS. Property in Domestic Animals,. 
 
 2. Property in Domestic Animals. — In animals which are of a tame 
 and domestic nature a man may have an absolute property ; be- 
 cause they continue perpetually in his occupation, and will not 
 stray from his house or person unless by accident or fraudulent 
 enticement, in either of which cases the owner does not lose his. 
 property.^ 
 
 placed for several years, and the spot on 
 which the oysters were planted was oppo- 
 site land owned by the defendant, it was 
 held that the original owner could not 
 maintain an action. Brinckerhoff u. 
 Starkins, ii Barb. (N. Y.) 248. 
 
 A sable caught in a trap was not con- 
 sidered to be property so as to sustain an 
 action for larceny. Norton v. Ladd, 5 
 N. H. 203; o. c, 20 Am. Dec. 573. 
 
 Wild animals of which there can be no 
 larceny, though reclaimed, are dogs, 
 cats, bears, foxes, apes, monkeys, pole- 
 cats, ferrets, squirrels, parrots, singing 
 birds, martins, coons. 2 Bish. Cr. L. 
 (7th Ed.) § 773- 
 
 It has also been held that a tame ca- 
 nary, mocking-bird, parrot, or other bird 
 is the subject of property. Manning v. 
 Mitcherson, 6g Ga. 447; s. c, 47 Am. 
 Rep. 764; Haywood v. State, 41 Ark. 
 
 479- 
 
 Wild animals when captured and so 
 under the control of the capturer that 
 they cannot escape are the property of 
 the one who captured them. Bac. Abr. 
 431; State V. House, 65 N. Car. 315; s. c, 
 6 Am. Rep. 744. 
 
 But merely pursuing and wounding 
 them will not vest the property until they 
 are actually secured. Pierson v. Post, 
 3 Cai. (N. Y.) 175; s. c, 2 Am. Dec. 264; 
 Buster v. Newkirk, 20 Johns. (N. Y.) 75. 
 
 Where the plaintiff, while fishing, cast 
 a seine around a shoal of mackerel with 
 the exception of a small opening which 
 the seine did not quite fill up, and where 
 defendant entered and took the fish, it 
 was held that plaintiff's possession was 
 not complete so as to enable him to 
 maintain an action for trespass. Young 
 V. Hichens, 6 Cad. & El. N. S. 606. 
 
 If a whale is killed, anchored, and left 
 with marks of appropriation, it is by law 
 and by custom tlie property of the cap- 
 tors; and even if it should be found, by 
 the crew of another vessel at a different 
 place from the one where it was left an- 
 chored, it will be the property of the cap- 
 tors. Taber v. Jenny, i Sprague (U. S.), 
 315; Swift V. Gifford, 2 Low. (U. S.) no. 
 
 Although there is no property in unre- 
 claimed wild animals, when they have 
 been killed and some labor has been be- 
 stowed upon the carcass the product of 
 
 such labor, as the hide, becomes a sub- 
 ject of larceny. Norton v. Ladd, 5 N. H. 
 203; s. c, 20 Am. Dec. 573; R. v. Gal- 
 laers. I Den. C. C. 501. 
 
 1. 2 Blacks. Com. 390. 
 
 Of all tame and domestic animals the- 
 brood belongs to the owner of the dam 
 or mother. Stewart v. Ball, 33 Mo. 154;, 
 Hanson v. Millett, 55 Me. 184; Hazel- 
 backer V. Goodfellow, 64 111. 238. 
 
 The increase of the increase ad infini- 
 tum belongs to the owner of the female: 
 animal. Tyson v. Simpson, 2 Hayw. 
 (N. Car.) 147. 
 
 But where the dam or mother is hired 
 out for a limited time, the increase be- 
 longs to the hirer, who by hiring becomes 
 the temporary owner of the animal. 
 Putnam v. Wyley, 8 Johns. (N. Y.) 432;: 
 s. c, 5 Am. Dec. 346; Concklin v. Ha- 
 vens, 12 Johns. (N. Y.) 314; Stewart v. 
 Ball, 33 Mo. 154; Hanson v. Millett, 55 
 Me. 184. 
 
 Where a father gave to his son the use: 
 of a mare to put her to horse, the son to 
 pay the charges, with the promise that 
 the foal would be his, and he accordingly 
 took the foal and had entire control over 
 it, it was held that he was the rightful 
 owner. LeinnendoU v. Doe, 14 Johns. 
 (N. Y.) 222. 
 
 But a father who loans cows to his. 
 married daughter and retains the title in 
 himself, so as to prevent the cows from 
 being sold by an intemperate husband or 
 his creditors, owns the increase. Orser 
 V. Storms, g Cow. (N. Y.) 687; s. c, 18. 
 Am. Dec. 543. 
 
 A mortgagee, under a mortgage upon 
 live-stock is entitled to the increase of th& 
 stock, and a purchaser of the increase 
 takes it subject to the mortgage. Gundy 
 V. Biteler, 6 111. App. 510; Kellogg v. 
 Lovely, 46 Mich. 131; s. c, 41 Am. Rep. 
 151; Thorpe v. Cowles, 55 Iowa, 408; 
 Evans v. Merriken, 8 Gill. & J. (Md.) 39; 
 Forman v. Proctor, g B. Mon. (Ky.)- 
 124; McCarty v. Blevins, 5 Yerg. (Tenn.) 
 195; s. c, 26 Am. Dec. 262; Fonville v. 
 Casey, i Murph. (N. Car.) 389; s. c, 4 
 Am. Dec. 559. But see Winter v. Lam- 
 phere, 42 Iowa, 471. 
 
 A colt foaled while its dam is held un- 
 
 ' der a bailment or executory contract of 
 
 purchase, by the terms of which the title 
 
 573 
 
Action for Becovery, 
 
 ANIMALS. 
 
 Action for Kecoyery. 
 
 3. Action for Recovery. — The owner of domestic or reclaimed 
 wild animals has the right to use any of the remedies the law 
 provides for the recovery of personal property illegally taken or 
 detained from the owner.* 
 
 is to remain in the bailor or vendor until 
 the agreed price is paid, is also subject to 
 the terms of such contract. Elmore v. 
 Fitzpatrick, 56 Ala. 400; Kellogg v. 
 Lovely, 46 Mich. 131; s. c, 41 Am. Rep. 
 151. 
 
 Where a bequest for life has been made 
 of live-stock, the increase belongs to the 
 tenant for life, who in some cases is re- 
 quired to keep up the original stock for 
 the remainderman. Horry v. Glover, 2 
 Hill Eq. (S. Car.) 521; Saunders v. 
 Haugliton, 8 Ired. Eq. (N. Car.) 217; s. 
 C, 57 Am. Dec. 581; Perry v. Terrell, 
 I Dev. & B. Eq. (N. Car.) 441; Lewis v. 
 Davis, 3 Mo. 133; s. c, 23 Am. Dec. 
 698; Majors v. Herndon, 78 Ky. 123; 
 Smith V. Barbara, 2 Dev. Eq. (N. Car.) 
 420; s. c, 25 Am. Dec. 721; Hunt v. 
 Watkins, i Humph. (Tenn.) 498; Evans 
 V. Iglehart, 6 Gill. & J.(Md.) 171; Cragg 
 V. Riggs, 5 Redf. (N. Y.) 82; Forsy v. 
 Luton, 2 Head. (Tenn.) 183. But see 
 Flowers v. Franklin, 5 Watts (Pa.), 265. 
 See Accession. 
 
 At common law there is only a species 
 of property in a dog. but of a base nature, 
 so that it cannot be the subject of larceny. 
 " Tliose animals which do not serve for 
 food and which therefore the law holds to 
 have no intrinsic value, as dogs of all 
 sorts and other creatures kept for whim 
 or pleasure, though a man may have base 
 property therein and maintain a civil ac- 
 tion for the loss of them, yet they are not 
 of such estimation as that the crime of 
 stealing them amounts to larceny." 4 
 Blacks. 236. 
 
 And the same rule was held to be good 
 as to cats. Wittingham v. Ideson, 8 U. 
 C. L. J. 14. 
 
 In the American courts dogs have also 
 generally been held to be a species of 
 property and entitled to less legal regard 
 and protection than more harmless and 
 useful animals, although an action for in- 
 jury may be maintained by their owners. 
 Woolf V. Chalker, 31 Conn. 121; State v. 
 McDufBe, 34 N. H. 523; Parker w. Mise, 
 27 Ala. 480; DUnlap v. Snyder, 17 Barb. 
 (N. Y.) 561; Harrington v. Miles, 11 
 Kans. 480; s. t., 15 Am. Rep. 355; 
 Wheatley v. Harris, 4 Sneed (Tenn.), 
 468; Dodson V. Mock, 4 Dev. & Bat. L. 
 (N. Car.) 146; s. c, 32 Am. Dec. 677; 
 Findlay v. Bear, 8 S & R. (Pa.) 571; 
 Putnam v. Payne. 13 Johns. (N. Y.) 312; 
 Brown v. Carpenter, 26 Vt. 638; Blair v. 
 
 Forehand, 100 Mass. 136; s. c, i Am. 
 Rep. 94; Perry v. Phipps, 10 Ired. (N. 
 Car.) 259; s. c, 51 Am. Dec. 387; State 
 V. Latham, 13 Ired. (N. Car.) 33. 
 
 In some States where statutes provide 
 that " all^pjsrsonal property " is subject to 
 larceny, and where personal property has 
 been defined as "goods and chattels," ju- 
 dicial decisions have included the dog as 
 personal property, subject to larceny. 
 People V. Campbell. 4 Park. Cr. C. (N. 
 Y.) 386; People V. Maloney, i Park. Cr. 
 C. (N. Y.) 598; State v. Brown, g Baxt. 
 (Tenn.) 53; s. c, 40 Am. Rep. 81; Har- 
 rington V. Miles, II Kans. 480; s. c, 
 15 Am. Rep. 355; Mayor r/. Meigs, i Mc- 
 Arthur (D. C), 53; Heisrodt v Hackett, 
 34 Mich. 283; s. c, 22 Am. Rep. 529; 
 Mullaly V. People, 86 N. Y. 365; Long- 
 well V. McMaster, 10 Abb. (U. S ) 132. 
 
 In other States the common law rule 
 prevails, although a special tax may be 
 collected from the owners of dogs. These 
 special taxes upon dogs can, however, 
 only be upheld on the ground that they are 
 not revenue measures but police regula- 
 tions. State V. Doe, 79 Ind. 9; s. c, 41 
 Am. Rep. 599; Bright v. McCullough, 
 27 Ind. 223; Mitchell v. Williams, 27 Ind. 
 62; Haller v. Sheridan, 27 Ind. 494; 
 Kinsman v. State, 77 Ind. 132; Ex p. 
 Cooper, 3 Tex. Ct. App. 4S9; s. c, 30 
 Am. Rep 153; State v. Marshall, 13 
 Tex. 58; Carter v. Dow, 16 Wis. 298; 
 Tenny ■v. Lenz, 16 Wis. 566; Thorp v. 
 Rutland & B. R. Co., 27 Vt. 140;, 
 Morey v. Brown. 42 N. H. 373; Baker v. 
 Panola County, 30 Tex. 86; State -v. Hol- 
 der, 81 N. Car. 527; s. c, 31 Am. Rep. 
 515; Ward V. State, 48 Ala. 161; s. c. 17 
 Am. Rep. 31; State v. Lymers, 26 Ohio 
 St. 400; s. c, 20 Am. Rep. 772. 
 
 1. Com. V. Beaman, 8 Gray * (Mass.), 
 497; Cummings v. Perham, i Mete. 
 (Mass.) 555; State v. Taylor, 27 N. J. L. 
 117; Taber v. Jenny, i Sprague (U. S.), 
 315; Bourne v. Ashley, i Low. (U. S.) 27; 
 Boggs V. Newton, 2 Bibb. (Ky.) 221; 
 Williams v. Belthany, 2 Const. Rep. (S. 
 Car.) 415; Eddy w. Davis, 35 Vt. 247; 
 Butler V. Reynolds, 3T. & C.JN. Y.)242; 
 Kimball v. Adams, 3 N. H. i8z; Brown 
 V. Smith, I N. H. 36; Amory v. Flynn, 
 10 Johns. (N. Y.) IQ2; s c, 6 Am. Dec. 
 316; Verner v. BoSworth, 28 Kans. 670. 
 
 So where a thief by food, voice, or 
 other means entices a horse, hog. or any 
 other animal away from the proper owner 
 
 573 
 
Actions for 
 
 ANIMALS. 
 
 Iqjiiries to Animals. 
 
 4. Actions for Injuries to Animals. — The owner of an animal either 
 domestic or wild, but reclaimed, has an action for damages against 
 one who, either intentionally or negligently, injures, maims, or 
 kills said animal. ^ (As to injuries to animals by the operation of 
 
 and brings it underjhis control, the owner 
 shall have an action for larceny against 
 the thief. State v. Wisdom, 8 Port. (Ala.) 
 511; Mooney v. State, 8 Ala. 328; Hite 
 V. State, 9 Yerg. (Tenn.) 198; Kemp v. 
 State, II Humph. (Tenn.) 320; State v. 
 Martin, 12 Ired. (N. Car.) 157; Baldwin 
 V. People, I Scam. (111.) 304; State w. 
 Gazell, 30 Mo. 92; State z-. Whyte, 2 
 Nott & McC. (S. Car.) 174; People v. 
 Kaatz, 3 Park. (N. Y.) Cr. 129. 
 
 A registered cattle-brand is prima-facie 
 proof of ownership. De Garca v. Gal- 
 van, 55 Tex. 53; Allen v. State, 42 Tex. 
 
 517. 
 
 And therefore illegally marking or 
 branding cattle with intent to defraud is a 
 conversion of the cattle and indictable; 
 but the intent to defraud must be shown, 
 and it is not sufBcient that the owner 
 does not consent. Fossett v. State, II 
 Tex. App. 40; Morgan v. State, 13 Fla. 
 671. 
 
 The offence ofaltering a brand on cattle 
 may be committed by merely clipping 
 the hair at the original brand. Slaughter 
 V. State, 7 Tex. App. 123. 
 
 Putting a brand on an animal, addi- 
 tional to one already on it, is an alteration 
 of the brand first put on, although the 
 latter brand may not interfere with or 
 change the figure of the first one; and 
 the owner will be entitled to an action. 
 Linney v. State, 6 Tex. i; s. c, 55 Am. 
 Dec. 756; Atzroth v. State, 10 Fla. 207; 
 Davis V. State, 13 Tex. App 215; State 
 V. Nichols, 12 Rich. (S. Car.) 672. 
 
 Unlawfully branding a colt whose 
 owner is unknown is indictable. State v. 
 Haws, 41 Tex. 161. 
 
 Where a horse had been seized under 
 pretence of necessity for the public ser- 
 vice, and, after the exigency under which 
 it was seized had passed, was demanded 
 and refused to be delivered up, an action 
 of trover would lie for his recovery. 
 Fryer v. McRae, 8 Port. (Ala.) 187. 
 
 Hiring a horse to travel a certain dis- 
 tance arid driving the horse a longer dis- 
 tance, or to another place than the one 
 agreed upon, is such a conversion of the 
 horse that an action will lie by the owner. 
 Disbrow v. Tenbroeck, 4 E. D. Smith 
 (N. Y.), 397; Lucas j/. Trumbull, 15 Gray 
 (M.iss.), 306: Fish i*. Ferris, 5 Duer (N. 
 Y.), 49; Wheelock v. Wheelwright, 5 
 Mass. 104; Homer v. Thwing, 3 Pick. 
 (Mass.) 492; Rotch v. Hawes, 12 Pick. 
 
 574 
 
 (Mass.) 136; Campbell w. Stakes, 2 Wend. 
 (N. Y.) 137; s. c, 19 Am. Dec. 561; 
 Towne v. Wiley, 23 Vt. 355; s. c., 56 
 Am. Dec. 85; Ray v. Tubbs, 50 Vt. 688; 
 s. c, 28 Am. Rep. 519; Fisher v. Kyle, 
 27 Mich. 454; Woodman v. Hubbard, 25 
 N. H. 67; s. c, 57 Am. Dec. 310. 
 
 But the owner may ratify the wrongful 
 act by accepting compensation for the 
 extradistance travelled. Ritch v. Hawes, 
 12 Pick. (Mass.) 126. 
 
 1. Not only the owner, but one who is 
 in possession under such an arrangement 
 that he is accountable for the animal or 
 for any injury to it in any event, may 
 sue to recover for any loss or injury done 
 the property while it is so in his posses- 
 sion. In such a case the person in pos- 
 session is treated as the owner and is 
 entitled to all rights of an owner. N. 
 Y., Chicago, etc., R.Co. v. Auer, 106 Ind. 
 2ig; Welty v. Indianapolis, etc., R. Co., 
 105 Ind. 55; Louisville, etc., R. Co. v. 
 Goodbar, 13 Am.&Eng. R.R. Cas. 599; s, 
 c, 88 Ind. 213; Fuller v. Curtis, 100 Ind. 
 237; s. c, 50 Am. Rep. 786. 
 
 D. delivered certain sheep to A. under 
 an arrangement whereby A. was to keep 
 and care for them. He had the right at 
 pleasure to return the identical sheep, 
 and was to deliver one half the increase 
 and one half the wool to D. If any of 
 those originally delivered, or of the in- 
 crease, died of disease or from natural 
 causes, such loss of those delivered and 
 of one half of the increase was to be 
 borne by D.. while A. was to account for 
 the value of all that strayed away and 
 were lost, or those that might be killed 
 by dogs or otherwise injured. Before 
 any had been returned, or any division 
 of the increase, the flock escaped through 
 a defective fence on the right of way of a 
 railroad company, and a number were 
 killed by the cars — being part of the 
 original number and part of the increase. 
 Held, that A. should be treated as the 
 owner of all, and was entitled as such to 
 recover their value from the railroad 
 company. N. Y., Chicago, etc., R. Co. 
 V. Auer, 106 Ind. 219. 
 
 So where a dog, followed by his mas- 
 ter, was pursuing a fox and was accident- 
 ally shot by another party who claimed 
 to have shot at the fox, but accidentally 
 killed the dog, the owner was entitled to 
 damages. Wright v. Clark, 50 Vt. 130; 
 s. c, 28 Am. Rep, 496. 
 
Cruelty to Animals. 
 
 ANIMALS. 
 
 Cruelty to Animals. 
 
 railroads, see FENCE LAWS; and as to injuries to animals by defects 
 in highways, see HIGHWAYS.) 
 
 5. Cruelty to Animals. — In various. States, and also in England, 
 statutes have been enacted for the prevention of cruelty to 
 
 And where a hog, trespassing on the 
 premises of a neighbor of the owner, in- 
 jured his crops and was pursued and 
 killed by the neighbor and his dogs, the 
 owner of the hog was held to be entitled 
 to damages for such killing. Thompson 
 V. State, 67 Ala.. 106; s. c, 42 Am. Rep. 
 101. See also Ford v. Taggart, 4 Tex. 
 492 ; Mardru v. Sutton, 2 Jones L. 
 (N. Car.) 146; Bost v. Mingues, 64 N. 
 Car. 44 ; Hobson v. Perry, I Hill 
 (S. Car.), 277; Champion v. Vincent, 20 
 Tex. 811; State v. Williamson, 27 N. 
 Western Rep. (Iowa) 259. 
 
 When trespassing animals are killed in 
 a wanton, malicious, and deliberate way 
 exemplary damages may be recovered. 
 Champion v. Vincent, 20 Tex. 811; 
 Richardson v. Carr, i Harr. (Del.) 142; 
 s. t., 25 Am. Dec. 65; Johnson v. Pat- 
 terson, 14 Conn, i; s.c, 35 Am. Dec. 96. 
 
 A statute making it unlawful for stock 
 to run at large is no defence for injuring 
 stock running at large'. ' State v. Rivers, 
 go N. Car. 73S; and see Bost v. Mingues, 
 64 N. Car. 44. 
 
 In Maine, where statutes make it an 
 offence to kill or wound a "domestic 
 animal," it was held that a dog is not a 
 domestic animal. State v. Harriman, 75 
 Me. 562; s. c, 46 Am. Rep. 423. See 
 also U. S. V. Gideon, i Minn. 292. 
 
 Injuries inflicted upon animals by neg- 
 ligence entitle the owner to an action for 
 damages against the one who inflicts the 
 injury. So held where the owner of a 
 quantity of hay, who spilt some white- 
 lead paint on it, tried to separate the 
 damaged part and thought he had suc- 
 ceeded, when he sold the supposed un- 
 damaged part without giving notice of 
 the facts to another whose cow died in 
 consequence of eating thereof. French 
 V. Vining, 102 Mass. 132; s. c, 3 Am. 
 Rep. 440. 
 
 A common carrier's liability does not 
 attach to a railway company that has 
 contr ,ted to move a menagerie in the 
 lafe: s own cars controlled by its own 
 !" _-nts, and, though operated by railway 
 employees, run upon a time schedule to 
 suit the menagerie. And a stipulation 
 that the railway company shall not be 
 liable for injuries to the menagerie caused 
 by want of care in thus moving it may 
 be upheld. Coup v. Wabash, etc., R. 
 Co., 56 Mich. III. 
 
 But where there is contributory negli- 
 gence on the part of the owner he can- 
 not recover. The owner of a mare per- 
 mitted her to feed in the same field with 
 a bull of his neighbor, and the mare was 
 gored by the bull. Held^ that the owner 
 of the bull was not liable in damages. 
 Carpenter v. Latta, 29 Kans. 591. 
 
 And where two owners of adjoining 
 lots, to avoid the expense of a partition- 
 fence, agreed that they should use the 
 lots jointly, and there was an unguarded 
 pit in the lot of one of them in which the 
 horse of his neighbor fell and was in- 
 jured, the owner of the horse could not 
 recover. McGill v. Compton, 66 111. 
 327- 
 
 Where one dog killed another, the 
 owner of the dog which was killed, in 
 order to be entitled to damages, must 
 prove that his dog was not the aggressor 
 regardless of the habits and character of 
 the dogs. Wiley v. Slater, 22 Barb. 
 (N. Y.) 506; and see Wheeler v. Brant, 
 23 Barb. (N. Y.) 324. 
 
 Where defendant's large dog while 
 following her along the street ran 
 into an adjoining yard and there seized 
 and killed plaintiff's small dog, defendant 
 was held not to be responsible for the 
 killing of the dog, whatever the result 
 might have been had the action been 
 brought for tresspass. Buck v. Moore, 
 35 Hun (N. Y.), 338. 
 
 The owner of trespassing animals can- 
 not recover when, while so trespassing, 
 they fall into an uninclosed pit or an 
 unguarded well, or are in some other way 
 injured or killed. Knight 11. Abert, 6 
 Pa. St. 472; s. c, 47 Am. Dec. 478; 
 Turner v. Thomas, 71 Mo. 596; Hughes 
 V. Hannibal, etc., R. Co., 66 Mo. 325; 
 Chicago, etc., R. Co. v. Patchin, 16 111. 
 201; N. Y., etc., R. Co. v. Skinner, 19 
 Pa St. 302 ; Gillis v. Pennsylvania R. 
 Co., 59 Pa St. 129; Bush v. Brainard, i 
 Cow. (N. Y.) 78; s. c, 13 Am. Dec. 513; 
 Hess V. Lupton, 7 Ohio, 216 ; Aurora, 
 etc., R. Co. 'u. Grimes, 13 111. 585; Dur- 
 ham V. Musselman, 2 Blackf. (Ind.) 96; 
 s. c, 18 Am. Dec. 133; Gribble v. Sioux 
 City, 38 Iowa, 390; McGill v. Compton, 
 66 111. 327; Illinois, etc., R. Co. v. Car- 
 raher, 47 111. 333; Herold v. Meyers, 20 
 Iowa, 378; Leseman v. South Carolina 
 R.Co., 4 Rich. (S. Car.) 413. But see 
 Young V. Harvey, 16 Ind. 314. 
 
 575 
 
TrespaBsing Animals. 
 
 ANIMALS. 
 
 Trespassing Animals- 
 
 animals. These statutes are so far similar in terms that a general 
 statement about their requirements will be sufficient.^ 
 
 6. Trespassing Animals. — At common law the rule prevails that 
 every man is bound to keep his animals within his inclosure at 
 his peril, and that he is liable in damages if he fails to do so and. 
 they escape on the property of others and do injury, whether such 
 property be fenced or not ; unless the trespass is committed upon 
 property through defects in fences which the owner of such prop-r 
 erty is bound to maintain.* 
 
 1. Bishop on Statutory Crimes, § 1102. 
 
 " If any person shall overdrive, over- 
 load, torture, torment, deprive of neces- 
 sary sustenance, or unnecessarily or 
 cruelly beat, or needlessly mutilate or 
 kill, or cause or procure to be overdrawn, 
 overloaded, tortured, tormented, or de- 
 prived of necessary sustenance, or be 
 unmercifully or cruelly beaten, or need- 
 lessly mutilated or killed, as aforesaid, 
 any domestic animal, every such offender 
 shall for every such offence be deemed 
 guilty of a misdemeanor." State v. 
 Gould, 26 W. Va. 258. 
 
 Abandonment of a disabled animal, 
 carrying animals in a cruel manner, 
 transporting animals for more than 
 twenty-four consecutive hours without 
 unloading for rest, water and feeding 
 during ten consecutive hours; poisoning 
 or attempting to poison animals; throw- 
 ing substances injurious to animals, as 
 glass and nails, wilfully and maliciously 
 in a public place; setting on foot fights 
 between birds and animals; keeping a. 
 place where animals are fought, are gen- 
 erally made misdemeanors. People v. 
 Tinsdale, 10 Abb. Pr. N S. (N. Y.) 374; 
 Broadway Stage Co. v. Society,, etc., 15 
 Abb. Pr. N. S. (N. Y.) 51: People z/. 
 Brunnell, 48 How. Pr.(N. Y.) 4351 Com. 
 V. Wood, Tii Mass. 408; State v. Com- 
 fort, 22 Minn. 271; State v. Brocker, 32 
 Tex. 611; State v. Rector, 34 Tex. 565; 
 State V. Avery, 44 N. H. 392; Rembert 
 V. State, 56 Miss. 280; Com. v. Tilton, 8 
 Mete. (Mass.) 232; Dargan v. Davies, 2 
 Q. B. D. 118; Murphy v. Manning, 2 
 Ex. D. 307. Compare Pitts v. Millar, L. 
 R. 9 Q. B. 380. 
 
 So is slaughtering with unnecessary 
 cruelty. Davis v. Society, etc., 16 Abb. 
 Pr. N. S. (N. Y.) 73; Grise v. State, 37 
 Ark. 456; Jones v. State, 9 Tex. App. 
 178; Colara V. Hall. L. R. 6 Q. B. 209. 
 Compare Ross' Case, 3 City H. Rec. 191. 
 Torture, to become indictable, must 
 produce pain or suffering. The mere 
 tying of a brush or board to a horse's tail 
 is not torture under a statute. State v. 
 Pugh, 15 Mo. 510. 
 
 The ownership of the animal is imma- 
 terial. State v. Gould, 26 W. Va. 258 p 
 State V, Brocker, 32 Tex. 611; Darnell v.. 
 State, 6 Tex. App. 482; Collier v. State, 
 6 Tex. App. 12; Turner v. State. 6 Tex. 
 App. 586; Benson v. State, i Tex. App. 
 6; Com. v. McClellan, loi Mass. 34';: 
 Com. V. Whitman, 118 Mass. 458; Com. 
 V. Lufkin, 7 Allen (Mass.), 582; Slate ■<!. 
 Comfort, 22 Minn. 271 ; State v. Avery,. 
 44 N. H. 392. 
 
 Using a dog in a treadmill is not cruelty 
 under a statute. People v. Special Ses- 
 sions, 4 Hun (N. Y.), 441. 
 
 Neither is pigeon-shooting for sport or 
 as an exhibition of skill as a marksman.. 
 State V. Bogardus, 4 Mo. App. 215. See 
 Paine v. Bergh, i C. C. R. (N. Y.) 160. 
 
 Where inflicting even severe pain on 
 an animal becomes necessary, as striking 
 ahorse while in training or to save human 
 life or limb, it will not be cruelty under 
 a statute if done without malice and a& 
 reasonably as circumstances will permit. 
 Walker v. Special Sessions, 4 Hun(N.Y.), 
 441 ; State v. h^i^xy. 44 N. H. 392; Com. 
 V. Lufkin, 7 Allen (Mass.), 579; Murphy 
 V. Manning, 2 Ex. D. 307; Cornelius v. 
 Grant, 7 Scotch Sess. Cas. 4th Ser. Just. 
 
 13- 
 
 A person has the right to protect 
 his premises against the depreda- 
 tions of mischievous dogs, and for that 
 purpose to use such means as are reason- 
 ably necessary, and if the depredating 
 animal is thereby caught in a steel trap 
 and mutilated, it would not be needless 
 torture or mutilation under the statute. 
 Hodge w. Slate, 11 Lea (Tenn.), 528. 
 
 2. 3 Blacks. Com. 211. 
 
 This common-law rule has obtained in 
 some of our States; in others it has been 
 more or less modified by statute. Mich- 
 igan, etc., R. Co. V. Fisher, 27 Ind. g'6; 
 Indianapolis, etc., R. Co. v. Harter, 38 
 Ind. 557; Pittsburgh, etc., R. Co. v. 
 Stuart, 71 Ind. 500; Myers v. Dodd, 9 
 Ind. 290; Hoover v. Wood, 9 Ind. 286; 
 Cook V. Morea, 33 Ind. 497; Crisman v. 
 Masters, 23 Ind. 319; Brady v. Ball, 14 
 Ind. 317; Sinram v. Pittsburgh, etc., R. 
 
 576 
 
Trespassing Animals, 
 
 ANIMALS. 
 
 Trespassing Animals. 
 
 "Co., 28 Ind. 244; Blizzard v. Walker, 32 
 Ind. 437; Indianapolis, etc., R. Co. v. 
 McClure, 26 Ind. 370; Lafayette, etc., R. 
 Co. V. Shriner, 6 Ind. 141; Williams v. 
 New Albany, etc., R. Co., 5 Ind. m; 
 Jeffersonville, etc., R. Co. v. Adams, 43 
 Ind. 403; Jefferson ville, etc., R. Co. v. 
 Underbill, 48 Ind. 389; Cincinnati, etc., 
 R. Co. V. Street, 50 Ind. 225; Stone v. 
 Kopka, 100 Ind. 458; Wells v. Beal, g 
 Kans. 597; Baker v. Robbins, 9 Kans. 
 :303; Larkin v. Taylor, 5 Kans. 433; 
 Darling v. Rodgers, 7 Kans. 592; Powers 
 V. Kindt, 13 Kans. 74; Rice v. Nagle, 14 
 iKans. 498; Pacific R. Co. -u. Brown, 14 
 JCans. 469; Louisville, etc., R. Co. v. 
 Ballard, 2 Mete. (Ky.) 177; Sherman v. 
 tKilpatrick, 58 Mich. 310; Williams v. 
 Michigan, etc., R. Co., 2 Mich. 260; s. t., 
 55 Am. Dec. 59; Aylesworth v. Herring- 
 !ton, 17 Mich. 417; Wood v. La Rue, 9 
 Mich. 158; Johnson v. Wing, 3 Mich. 
 163; Rust V. Low, 6 Mass. 90; Towne v. 
 Nashua, etc., R. Co., 124 Mass. loi; 
 Lyons v. Merrick, 105 Mass. 71; Eames 
 w. Salem, etc., R. Co., 98 Mass. 561; 
 -Maynard v. Boston, etc., R. Co., 115 
 Mass. 458; s. c, 15 Am. Rep. 119; Mel- 
 'Ody V. Reab, 4 Mass. 471; Stackpole v. 
 Healy, 16 Mass. 33; s. c, 8 Am. Dec. 
 T2i; Lyman v. Gipson, 18 Pick. (Mass.) 
 -422; Holbrook v. McBride, 4 Gray 
 ■(Mkss.), 215; Darling v. Boston, etc., 
 R. Co., 121 Mass. 118; McDonnell v. 
 Pittsfield, etc., R. Co., 115 Mass. 564; 
 Thayer v. Arnold, 4 Mete. (Mass.) 589; 
 Bronson v. Coffin. 108 Mass. 175; Locke 
 ■V. First Div., etc., R. Co., 15 Minn. 
 350; Fritz V. First Div., etc., R. Co., 
 22 Minn, 404; Baltimore, etc.. R. Co. 
 V. Lamborn, 12 Md. 257; Keech v. 
 Baltimore, etc. R.. Co., 17 Md, 33; Bal- 
 timore, etc., R. Co. V. Mulligan, 54 Md. 
 487; Richardson v. Milburn, ir Md. 
 340; Vandegrift v. Rediker, 22 N. J. L. 
 185; s. c, 51 Am. Dec. 262; Price v. 
 New Jersey,, etc., R. Co., 31 N. J. L. 
 ■.229; Brittin u. Van Camp, 3 N. J. L. 
 '662; Chambers v. Matthews, 3 Harr. 
 <N. J.) 368; Coxe V. Robbins, 9 N. 
 J. L. 384; Avery v. Maxwell, 4 N. H. 
 .36; Glidden v. Towle, 31 N. H. i68; 
 Roby V. Reed, 39 N. H. 461; Giles v. 
 Boston, etc., R. Co., 55 N. H. 552; 
 Mayberry v. Concord R. Co., 47 N. H. 
 391; Tewksburry v. Bucklin, 7 N. H. 518; 
 Page V. Olcott, 13 N. H. 399; Lawrence 
 v. Combs, 37 N. H. 331; Mills v. Stark, 
 4 N. H. 512; s. c, 17 Am. Dec. 444; 
 Cornwall v. Sullivan R. Co., 28 N. H. 
 i6i; Makepeace v. Worden, i N. H. 16; 
 Dean v. Sullivan R. Co., 22 N. H. 316; 
 York V. Davis, 11 N. H. 241; Bemis zi. 
 Connecticut, etc., R. Co., 42 Vt. 375; 
 
 Jackson v. Rutland, etc., R. Co., 25 Vt. 
 150; s. c, 60 Am. Dec. 246; Hurd v. 
 Rutland, etc., R. Co., 25 Vt. 116; Keenan 
 V. Cavanaugh, 44 Vt. 268; Trow v. Ver- 
 mont, etc., R. Co., 24 Vt. 488; s. c, 58 
 Am. Dec. 191; Sorenberger «;. Houghton, 
 40 Vt. 150; Clark v. Adams, 18 Vt. 425; 
 s c, 46 Am. Dec. 161; Holden v. Shat- 
 tuck, 34 Vt. 336; Wilder z/. Wilder, 38 Vt. 
 678; Saxton V. Bacon, 31 Vt. 540; Town 
 V. Lamphire, 37 Vt. 52; Tupper v. Clark, 
 43 Vt. 200; Tower v. Providence, etc., 
 R. Co., 2 R. I. 404; Harrison v. Brown, 
 5 Wis. 27; Slucke v. Milwaukee, etc., R. 
 Co., 9 Wis. 202; McCall v. Chamberlain, 
 13 Wis. 640; Hassa v. Junger, 15 Wis. 
 598; Staffard v. IngersoU, 3 Hill (N. Y.), 
 38; Spinner v. N. Y., etc., R. Co., 67 N. Y. 
 153; Wells V. Howell, 19 Johns. (N. Y.) 
 385; Tonawanda R. Co. v. Munger, 
 5 Denio (N. Y.), 255; Deyo v. Stewart, 
 4 Denio (N. Y.), loi; Shepherd v. Hees, 
 12 Johns. (N. Y.) 433; Griffin v. Martin, 
 7 B'arb. (N. Y.) 297; Clark v. Browne, 18 
 Wend. (N. Y.) 213; Golden v. Eldred, 15 
 Johns. (N. Y.) 220; Holladay v. Marsii. 3 
 Wend. (N. Y.) 142; s. t., 20 Am. Dec. 678; 
 Richardson v. Northrup, 66 Barb. (N. Y.) 
 85; Perkins v. Perkins, 44 Barb. (N. Y.) 
 134; Hardenburgh v. Lockwood. 25 
 Barb. (N. Y.) 9; Cowles v. Balzer, 47 
 Barb. (N. Y.) 562; Ryan v. Rochester R. 
 Co., 9 How. Pr. (N. Y.) 453, Marsh v. 
 N. Y., etc., R. Co., 14 Barb. (N. Y.) 364; 
 Heath v. Coltenback, 5 Iowa, 490; Wag- 
 ner V. Bissell, 3 Iowa, 396; Alger v. 
 Mississippi, etc., R. Co., 10 Iowa. 268; 
 Whitbeck v. Dubuque, etc., R. Co.. 21 
 Iowa, 103; Duffus V. Judd, 48 Iowa, 256; 
 Frazier z/. Nortinus, 34 Iowa, 82; Broad- 
 well V. Wilcox, 22 Iowa, 568; Hallock v. 
 Hughes, 42 Iowa, 516; Little v. McGuire, 
 38 Iowa. 560; Little v. Lathrop, 5 Me. 
 356; Knox V. Tucker, 48 Me. 373; Brad- 
 bury V. Gilford, 53 Me. 99; Heath ii. 
 Ricker, 2 Me. 408; Cool v. Crommet. 13 
 Me. 250; Gooch v. Stephenson. 13 Me. 
 371; Eastman v. Rice, 14 Me. 419; Lord 
 V. Wormwood, 29 Me. 282; s. c, 50 Am. 
 Dec. 586; Perkins v. Eastern R. Co., 29 
 Me. 307; s. c, 50 Am. Dec. 589; Webber 
 V. Closson, 35 Me. 26; Sturtevant v. 
 Merrill, 33 Me. 62; Adams v. McKinney, 
 Add. (Pa.) 258; N. Y., etc., R. Co. v: 
 Skinner, ig Pa. St. 298; Gregg v. Gregg, 
 55 Pa. St. 227; Milligan v. Wehinger, 68 
 Pa. St. 235; Knight v. Abert, 6 Pa. St. 
 472; s. c, 47 Am. Dec. 478; Race v. 
 Snyder, 30 Leg. Int. (Pa.) 361; Rangier 
 V. McCreight, 27 Pa. St. 95; Mitchellw. 
 Wolf, 46 Pa. St. 147; Fleming z;. Ramsey, 
 46 Pa. St. 252; Stephens v. Shriver, 25 
 Pa. St. 78. 
 In other States the common-law rule 
 
 577 
 
IrespasBing Animals. 
 
 ANIMALS. 
 
 Wltat IB Ireipast, 
 
 What is Tresfass.-^^VGxy unwarrantable entry by animals 
 upon the land of another is a trespass, whether the land be in- 
 closed or not.^ 
 
 When Owners of Animals are Liable for Injury or Damage done 
 by Them. — If domestic animals, such as oxen and horses, injure 
 any one in person or property when they are rightfully in the place 
 where they do the mischief, the owner of such animals is not lia- 
 ble for such injury unless he knows they are accustomed to do 
 mischief ; and such knowledge must be alleged and proved. But 
 if they are wrongfully in the place where they do mischief the 
 
 has been abrogated as not suited to the 
 condition of new and sparsely settled 
 countries. In Macon, etc., R. Co. v. 
 Lester, 30 Ga. 914, the court held that 
 ' ' Such a law as this would require a rev- 
 olution in our people's habits of thought 
 and action. A man could not walk 
 across his neighbor's uninclosed land, 
 nor allow his horse, or his hog, or his 
 cow to range in the woods nor to graze 
 on the old fields or the ' wire-grass,' with- 
 out subjecting himself to damages for a 
 trespass. Our whole people with their 
 present habits would be converted into 
 a set of trespassers." Little Rock, etc., 
 R. Co. V. Finley, 37 Ark. 562; Waters v. 
 Moss, 12 Cal. 535; Logan v. Gedney. 38 
 Cal. 579; Coraerford v. Dupuy, 17 Cal. 
 308; Dohefty v. Thayer, 31 Cal. 141; 
 Richmond v. Sacramento, etc., R. Co., 
 18 Cal. 351; Morris v. Fraker, 5 Colo. 
 425; Willard v. Mathesus, 7 Colo. 76; 
 Studwell V. Ritch, 14 Conn. 292; Wright 
 V. Wright 21 Conn. 329; Barnum u. Van 
 Dusen, 16 Conn. 200; Hine v. Wooding, 
 37 Conn. 123; Bissel v. Southworth, i 
 Root (Conn.), 269; Macon, etc., R. Co. 
 V. Lester. 30 Ga. 914; Georgia R. Co. v. 
 Neely, 56 Ga. 540; Central, etc., R. Co. 
 V. Davis, 19 Ga. 437; Seeley v. Peters, 
 10 111. 130; Westgate v. Carr, 43 111. 450; 
 Headen v. Rust, 39 111. i85; Stoner v. 
 Shugart 45 111. 76; Chicago, etc., R. Co. 
 V. Patchin, 16 111. 201; Alton, etc., R. 
 Co. V. Baugh, 14 111. 211; Misner v. 
 Lighthall, 13 111. 609; Ozburn v. Adams, 
 70 111. 2gi; D'Arcy v. Miller, 86 111. 102; 
 Montgomery w. Handy, 62 Miss. 16; 
 Vicksburg, etc., R. Co. v. Patton, 31 
 Miss. 156; New Orleans, etc., R. Co. v. 
 Field, 46 Miss. 573; Gorman v. Pacific 
 R. Co.. 26 Mo. 441; Hannibal, etc., R. 
 Co. V. Kenney, 41 Mo. 271; JVIcPheeters 
 V. Hannibal, etc., R. Co., 45 Mo. 22; 
 Early v. Fleming, 16 Mo. 154; Tarwater 
 V. Hannibal, etc., R. Co.. 42 Mo. 193; 
 Canefox v. Crenshaw, 24 Mo. 199; Chase 
 V. Chase; 15 Nev. 259; Laws -j. North 
 Carolina R. Co.. 7 Jones L. (N. Car.) 
 468; Nelson v. Stewart, 2 Murphy (N. 
 
 Car.), 298; McKay v. Woodle, 6 Ired. L. 
 (N. Car.) 352; State v. Lamb, 8 Ired. L. 
 (N. Car.) 229; Jones v. Witherspoon, 7 
 Jones L. (N. Car.) 555; Kerwhacker v. 
 Cleveland, etc., R. Co., 3 Ohio St. 172; 
 Cincinnati, etc., R. Co. v. Watterson, 4 
 Ohio St. 424; Cleveland, etc., R. Co. v. 
 Elliott, 4 Ohio St. 474; Marietta, etc., R. 
 Co. V. Stephenson, 24 Ohio St. 48; 
 Cranston v. Cincinnati, etc., R. Co., i 
 Handy (Ohio), 193; Phelps v. Cousins, 
 29 Ohio St. 135; Campbell v. Bridwell, 5 
 Oregon, 311; Murray v. South Carolina 
 R. Co., 10 Rich L. (S. Car.) 227; Danner 
 V. South Carolina R. Co., 4 Rich L. (S. 
 Car.) 329; s. c, 55 Am. Dec. 678; Wilson 
 V. Wilmington, etc., R. Co., 10 Rich L. 
 (S. Car.) 52; Blaine v. Chesapeake, etc., 
 R. Co., 9 W. Va. 252; Baylor v. Balti- 
 more, etc., R. Co., 9 W. Va. 270; De- 
 laney v. Errickson, 11 Neb. 533; Mobile, 
 etc., R. Co. V. Williams, 53 Ala. 595; 
 Jean v. Sandiford, 39 Ala. 317; Polk v. 
 Lane, 4 Yerg. (Tenn.)36; State v. Coun- 
 cil, I Tenn. 305. For fence-laws, see 
 Fence-laws. 
 
 1. 3 Blacks. Com^ 209; Wells v. How- 
 ell, 19 Johns. (N. Y.) 385. 
 
 A person is equally answerable for the 
 trespass of his cattle as of himself. 3 
 Blacks. Com. 211. 
 
 A trespass may be small and still 
 be a trespass in law; as where a. horse 
 outside a fence was fighting a horse 
 inside. Pettit v. May, 34 Wis. 666: El- 
 lis V. Loftus Iron Co., L. R. 10 C. P. 
 10. 
 
 And it does not matter if the owner of 
 the cattle supposes that he has a right to 
 pasture his cattle on another's land; it 
 will be none the less a trespass. As where 
 A and B owned adjoining lots not divided 
 by a partition fence and B allowed C's 
 cattle to enter the lots, representing that 
 he owned the whole, and C's cattle did 
 damage in A's lot, C was held liable to 
 A, although he believed that B had full 
 authority to allow his cattle in the lots. 
 Daniels v. Aholtz, 81 111. 440. See also 
 Trespass. 
 
 578 
 
Tresspassing Animals. 
 
 ANIMALS. 
 
 When Owners Liable. 
 
 owner is liable, though he had no notice that they were accustomed 
 to do so before.^ 
 
 1. Decker v. Gammon, 44 Me. 322; 
 Dunckle v. Kocker, 11 Barb. (N. Y.) 387; 
 Chunot V. Larson, 43 Wis. 536; s. c. , 28 
 Am. Rep. 567; Dolph v. Ferris, 7 Watts 
 & S. (Pa.) 367; s. c, 42 Am. Dec. 246; 
 Van Leuven v. Lyke, i N. Y. 515; s. c, 
 49 Am. Dec. 346; Beckett v. Beckett, 48 
 Mo. 396; Barnum v. Van Dusen, i6 
 Conn. 200; Moss v. Pardridge, 9 111. 
 App. 490; Rust V. Low, 5 Mass. go; Ke- 
 lilier v. Connecticut, etc., R. Co., 107 
 Mass. 411; Shepherd v. Hees, 12 Johns. 
 (N. Y.) 433; McDonell v. Pittsfield, etc., 
 R. Co., 115 Mass. 564; Cowles v. Bal- 
 zer, 47 Barb. (N. Y.) 562; D'Arcy v. Mil- 
 ler, 86 111. 102; Goodman v. Gay, 15 Pa. 
 St. 188; s. c, 53 Am. Dec. 589; Dickson 
 V. McCoy, 39 N. Y. 401; Studwell v. 
 Ritch, 14 Conn. 292; Page o. HoUings- 
 worth, 7 Ind. 317; Osincup v. Nichols, 
 49 Barb. (N. Y.) 147. 
 
 So where oxen break the plaintiff's 
 close and kill his cow, the owner of the 
 oxen will be liable in damages without 
 proving that he knew they were accus- 
 tomed to gore. Angus v. Radin, 5 N. 
 J. L. 815; s. c, 8 Am. Dec. 626. 
 
 Where a young stallion was put in a 
 lot surrounded by a fence as was " com- 
 mofi among farmers, and usually consid- 
 ered safe," and the stallion leaped the 
 fence and injured a person driving on 
 the highway, it was a question for the 
 jury whether such fence was sufficient to 
 hold the stallion. Mcllvaine v. Lantz, 
 100 Pa. St. 586; s. c, 45 Am. Rep. 400. 
 
 A bull escaped through a gap in the 
 fence to -i. neighboring lot and killed 
 plaintiff's horse. As the plaintiff was 
 responsible for the defective fence, and 
 it was not proved that defendant had 
 previous knowledge of the vicious char- 
 acter of the bull, the plaintiff could not 
 recover. Scott v. Grover, 56 Vt. 499; 
 s. c, 48 Am. Rep. 814. And see Weide 
 V. Thiel, 9 in. App. 223; Baynes v. Chas- 
 tain, 68 Ind. 376. 
 
 This decision would have been differ- 
 ent if the bull had broken into plaintiff's 
 lot without any negligence on the part of 
 the plaintiff. Dolph v. Ferris, 7 Watts & 
 S. (Pa.) 367; s. c, 42 Am. Dec. 247. 
 
 If cattle escape through defendant's 
 defective part of the fence, and also 
 through a part of the fence which the 
 plaintiff had kept in good repair, while 
 some parts of plaintiff's fence were also 
 defective, it is a question for the jury 
 whether the defendant will be liable for 
 damage done by his cattle which so es- 
 
 caped. Noble V. Chase, 60 Iowa, 261. 
 And see Rice v. Nagle, 14 Kans. 498. 
 
 Where a stallion broke through the 
 fence in a neighboring lot and damages 
 were awarded for the breaking of the 
 close, this did not bar an action for cbnse- 
 quent damages in consequence of a mare, 
 which was pasturing in the lot, being 
 gotten with foal by the stallion ; said fact 
 not being known at the time. Hagan u. 
 Casey, 30 Wis. 553. 
 
 Where the owner of an inclosure who 
 was bound to repair his fence failed to do 
 so, and his neighbor's cow strayed on his 
 premises and was there bitten by a dog, 
 he is liable in damages, although no action 
 for trespass will lie. Cate w. Cate, 50 N. 
 H." 144; s. c, 9 Am. Rep. 179. 
 
 In States where the common-law rule 
 has been abrogated or so far modified 
 that cattle are allowed to range at will, 
 the owners of crops have no action for 
 damages by trespassing cattle unless 
 they can prove that their lots were at the 
 time of the trespass inclosed by good 
 aud sufficient fences. Morris v. Fraker, 
 5 Colo. 425; Cowerford v. Dupuy, 17 
 Cal. 308; Seeley v. Peters, 10 111. 130; 
 Oil V. Rowley, 69 111. 469; Frazer v. Nor- 
 tinus, 34 Iowa, 82; Wells v. Beal, 9 
 Kans. 597. 
 
 Where cattle got into the inclosure [of 
 defendant, which was surrounded by a 
 fence not sufficiently high, the owner of 
 the field can maintain no action for dam- 
 ages although the vicious habits of the 
 cow were known. Runyan v. Patterson, 
 87 N. Car. 343; Filmore v. Booth, 29 
 Kans. 134. And see also Mann v. Wil- 
 liamson, 70 Mo. 661; Chase u. Chase, 
 15 Nev. 259; Hinshaw v. Gilpin, 64 Ind. 
 116. But see Lyons v. Merrick, 105 
 Mass. 71. 
 
 The owner of trespassing cattle was 
 held not to be liable where the trespass 
 could have been prevented if there had 
 been material on the ground to close up 
 the gap in the fence through which they 
 came. Little v. McGuire, 38 Iowa, 560. 
 
 But even if the fences are defective 
 the owner of a crop damaged by trespass- 
 ing cattle can recover from the owner of 
 the cattle if it is proved that he drove the 
 cattle upon the premises and was guilty 
 of wanton and wilful want of care. Pow- 
 ers V. Kindt, 13 Kans. 74. 
 
 Although liable for damages done by 
 his cattle which broke through a fence, 
 the owner of such cattle is not liable for 
 damage done by other cattle trespassing 
 
 579 
 
respassing Animals, 
 
 ANIMALS. Who Liable— Rights of Strangers. 
 
 Who are Liable fur Trespasses of Animals. — Those who have the 
 care, control, and custody of animals', such as a depasturer of 
 sheep or an agister of cattle and horses, are with the owner equally 
 liable for trespasses and injuries by the animals under their care.* 
 
 Rights of Strangers in regard to Trespassing Animals. — Every 
 man has a right to keep trespassing animals from his premises, but 
 
 through the hole his cattle made unless 
 •si>ch cattle was under his control. Dur- 
 ham V. Goodwin, 54 111. 469. 
 
 1. Barnum i/. Van Dusen, 16 Conn. 
 200; Rossell V. Cottom, 31 Pa. St. 525; 
 Tewksburry v. Bucklin, 7 N. H. 518; 
 Lyons V. Merrick, 105 Mass. 71; Ward 
 -». Brown, 64 111. 307; s. c, 16 Am. Rep. 
 561; Cook V. Morea, 33 Ind. 497; Fram- 
 -mell V. Little. 16 Ind. 251; Marsel u. 
 Bowman, 62 Iowa, 57; Kennelt u. Dur- 
 gin, 59 N. H. 560; Moulton v. Moore, 56 
 Vt. 700; Weymouth v. Gile, 72 Me. 446; 
 Marsh V. Jones, 21 Vt. 378; s. c, 52 Am. 
 Dec. 67 : Sheridan v. Bean, 8 Mete. 
 ■<Mass.) 284; s. c, 41 Am. Dec. 507; 
 Buddington v. Shearer, 22 Pick. (Mass.) 
 427; Smith !<. Montgomery, 52 Me. 178; 
 Smith V. Jaques, 6 Conn. 530; Noyes v, 
 Colby, 30 N. H. 143. 
 
 So is the owner of animals liable for 
 ^11 injuries caused by the carelessness of 
 his servants, while tliey have the control 
 of the animals within the scope of tiieir 
 employment or by his express orders. 
 McCahill v. Kipp, 2 E. D. Smith (N. Y.), 
 413; Hall V. Warner, 60 Barb. (N. Y.) 
 ig8; Street v. Laumier, 34 Mo. 469; 
 Hummell v. Wester, Bright (Pa.), 133; 
 Cohen v. Drydock, etc., R. Co., 69 N. 
 Y. 170; Dimock v. Suffield, 30 Conn. 
 129; Stone V. Hills. 45 Conn. 44; Mad- 
 ■dox V. Brown, 71 Me. 432; s. c, 34 Am. 
 Rep. 336; Wright V. Wilcox, 19 Wend. 
 •(N. Y.) 343; Campbell v. Providence, 9 
 R. I. 262. 
 
 But not for anything done by the 
 -servant outside of his authority or not 
 within the scope of his employment. 
 Steele v. Smith, 3 E. D. Smith (N. Y.), 
 321; Welden v. Harlem R. Co., 5 Bosw. 
 -(N. Y.) 576; Phelon v. Stiles, 43 Conn. 
 426; Cavanaugh v. Dinsmofff, 12 Hun 
 (N. Y.), 465; Sheridan v. Charlick, 4 
 Daly (N. Y.), 338; Howe v. Newmarch, 
 12 Alien (Mass.), 49 ; Bard v. Yohn, 
 -26 Pa. St. 482. See Master and Ser- 
 vant. 
 
 B agreed to pasture A's cattle in his 
 field, and afterward without A's knowl- 
 edge agreed with C that the cattle should 
 also run in C's field, which adjoined that 
 of B. The cattle escaped through C's 
 -defective fence into the close of D ad- 
 ioining, and did damage there. Held, 
 
 that A was not liable to D in trespass. 
 Ward V. Brown, 64 111. 307; ». c, 16 
 Am. Rep. 561. 
 
 A tenant is liable for damages done by 
 his stock while breaking through a de- 
 fective partition-fence, which, according 
 to an agreement between the landlord 
 and his neighbor made before he leased 
 the land, the landlord was under obliga- 
 tion to repair. Baynes v. Chastain, 68 
 Ind. 376. 
 
 And so when cattle is leased with a 
 farm the tenant, and not the lessor, will 
 be liable. Van Slyck v, Snell, 6 Lans. 
 (N. Y.) 299. 
 
 The several owners of animals which 
 had been jointly trespassing, although 
 all liable for the damage done by their 
 animals, cannot be sued jointly in one 
 action for damages. Cogswell v. Murphy, 
 46 Iowa, 44; Yeazel v. Alexander, 58 III. 
 263; Westgate v. Carr, 43 111. 450; Rowe 
 V. Bird, 48 Vt. 578;' Adams v. Hall, 2 Vt. 
 9; s. c, 19 Am. Dec. 690; Auchmutz v. 
 Ham, I Denio (N. Y.), 501; Carroll v. 
 Weiler, 4 Thomp. & C. (N. Y.) 131; 
 Slater v. Mersereau, 64 N. Y. 147; Van 
 Steenburgh v. Tobias. 17 Wend. (N. Y.) 
 562; s. c , 31 Am. Dec. 310; Panen- 
 heimer v. Van Order, 20 Barb. (N. Y.) 
 479; Chipman v. Palmer, 9 Hun (N. Y.), 
 520; Colegrove v. New Haven, etc., R. 
 Co., 6 Duer (N. Y.), 382; Harden v. 
 Boyce, 59 Barb. (N. Y.) 425; Russell v. 
 Tomlinson, 2 Conn. 206; Buddington v. 
 Shearer, 20 Pick. (Mass.) 477; Brady v. 
 Ball, 14 Ind. 317: Denny v. Cornell, 9 
 Ind. 73; Little Schuylkill R. Co. v. 
 Richards, 57 Pa. St. 147. But see Oz- 
 burn -v. Adams, 70 111. 291; Remile v. 
 Donahue. 54 Vt. 555; Kerr w. O'Connor, 
 63 Pa. St. 341; McAdams v. Sutton, 24 
 Ohio St. 333, where it was held that 
 under certain circumstances or by statute 
 they may be jointly liable. 
 
 In order to fix the liability of each 
 owner the jury are at liberty to adopt 
 any reasonable rule in estimating the 
 amount of damages done by each animal. 
 Buddington v. Shearer, 22 Pick. (Mass.) 
 427; Partenheimer v. Van brder, 20 
 BaVb. (N. Y.) 479; Wilbur v. Hubbard, 
 35 Barb. (N. Y.) 303; Powers v. Kindt, 
 13 Kans. 74; Russell v. Tomlinson, 2 
 Conn. 206. 
 
 580 
 
TresBpaning Aniznals. 
 
 ANIMALS. 
 
 Tkioaa Animali, 
 
 he may use no more force than is necessary to drive them off ; 
 and drive them not farther than is necessary to keep them from 
 his premises. He will not be responsible for any injury they 
 may subsequently commit. He is responsible for any injury he 
 may inflict wantonly and unnecessarily, and if he uses a dog to 
 drive them off he must have due regard in the way of setting him 
 upon the animals and to the size and character of the dog.^ 
 
 7. Vicious Animals. — The owner or keeper of animals of a vicious 
 disposition or mischievous habits, of which the owner had previous 
 actual or implied notice, is bound at his peril to keep them at all 
 times and in all places properly secured, and is responsible to any 
 one who, without fault on his own part, is injured by them.* 
 
 1. Amick V. O'Hara, 6 Blackf. (Ind.) 
 258; Clark V. Adams, 18 Vt.' 425; s. c, 
 46 Am. Dec. 161; Davis v. Campbell, 23 
 Vt. 236; Humphrey v. Douglass, 10 Vt. 
 71; II Vt. 22; s. c, 34 Am. Dec. 668; 
 Waterman v. Hall, 17 Vt. 128; s. c. 42 
 Am. Dec. 484; Smith z/. Waldorf, 13 Hun 
 (N. Y.), 127; Loomis v. Terry, 17 Wend. 
 <N. Y.) 496; s. c, 31 Am. Dec. 306; Mc- 
 Intire v. Plaisted, 57 N. H. 606; Cory 
 Ti. Little, 6 N. H. 213; s. c, 25 .A.m. Dec. 
 458; Gilson v. Fisk, 8 N. H. 404; Snap 
 ■V. People, ig III. 80; Painter v. Baker, 
 16,111. 103; Palmer w. Silverthorn, 32 Pa. 
 St. 65; Richardson v. Carr, I Harr. (Del.) 
 142; s. c, 25 Am. Dec. 65; Ford v. Tag- 
 gart, 4 Tex. 492; Best v. Mingues, 64 N. 
 Car. 44; Thompson v. State, 67 Ala. 106; 
 s. c, 42 Am. Rep. loi; Wood v. La Rue, 
 ■9 Mich. 158; Story v. Robinson, 32 Cal. 
 205; James v. Caldwell, 7 Yerg. (Tenn.) 
 38; Jones V. Hood, 4 Bush (Ky.), 80. 
 But see Totten u. Cole, 33 Mo. 138; and 
 see also Tobin v. Deal, 60 Wis. 87; s. c, 
 50 Am. Rep. 345. 
 
 • But where the. owner of a herd of ewes 
 discovered a number of stray bucks 
 among his ewes, tupping them out of 
 season, and he killed them after making 
 fruitless efforts to drive them away and 
 to discover their owner, he was held jus- 
 tified in killing them. Thomas v. State, 
 14 Tex. Ct. App. 200. 
 
 Where one uses only such means as 
 are necessary to drive trespassing cattle 
 out of his fields, and if in so doing some 
 of the cattle are mutilated, he will not be 
 liable. Avery v. People, 11 111. App. 332; 
 Davis V. State, 12 Tex. App. 11; Davis 
 V. Campbell, 23 Vt. 236. 
 
 But where cattle got into the inclosure 
 of defendant, which was not properly 
 fenced, and he fired at them to frighten 
 them, and accidentally killed a mule 
 which he did not see, he was held re- 
 sponsible. State V. Barnard, 88 N. Car. 
 ■661, 
 
 A notice given that the owner of prem- 
 
 ises will kill, all animals trespassing on 
 his premises is a mere threat to do an 
 illegal act, and will not justify any un- 
 necessary injury to trespassing animals.- 
 Clark V, Keliher, 107 Mass. 406; John- 
 son V. Patterson, 14 Conn. 1; s. c., 35 
 Am. Dec. 96. 
 
 Scattering poison within one's inclos- 
 ure for the purpose of poisoning the fowl 
 of another if they should come there is 
 not justifiable, and the owner of the fowl 
 may recover for the fowl killed. Johii- 
 son V. Patterson. 14 Conn, i; s. c, 35 
 Am. Dec. 96; Matthews v. Fiestel, 2 E. 
 D. Smith (N. Y.), go. 
 
 A person has, however, the right to 
 protect his own property, and will not 
 be responsible if he entraps a dog in a 
 steel trap, whereby the dog is mutilated, 
 if he has reason to believe that the dog 
 has for some time made nightly invasions 
 on his premises, disturbing his fowl, eat- 
 ing his eggs, and damaging and disturb- 
 ing his property.' Hodge v. State, 11 
 Lea (Tenn.), 528; s. c, 47 Am. Rep. 307. 
 
 The inhabitant of a dwelling-house has 
 the right to kill a dog who is continually 
 trespassing on his premises and disturb- 
 ing his peace by day and night bv bark- 
 ing and howling. Knowledge of the 
 habits of the dog by the owner must, 
 however, be proved. Brill v. Flagler, 23 
 Wend. (N. Y.) 354. 
 
 But a landowner has no right to kill a 
 dog trespassing on his premises and 
 doing no actual injury simply because 
 the dog is suspected of previous miscon- 
 duct on the same premises. Brent v. 
 Kimball, 60 111. 211 ; ». c, 14 Am. Rep. 
 35- 
 
 Neither can he kill any animal for 
 damages done in the past. Bost v. 
 Mingues, 64 N. Car. 44; Ulery v. Jones, 
 81 111. 403. 
 
 2. Lyons v. Merrick, 105 Mass. 71; 
 Hewes v. McNamara. 106 Mass. 281; 
 Wheeler v. Brant, 23 Barb. (N. Y.) 324; 
 Rider v. White, 65 N. Y. 54; s. c, 22 
 
 I C. of L.— 38 
 
 581 
 
Injuries by Wild Animals, 
 
 ANIMALS. 
 
 Injuries by Wild Animals^ 
 
 8. Injuries by Wild Animals. — If one keeps a lion, bear, or any other 
 wild and ferocious animal, and such animal escapes from his con- 
 
 Am. Rep. 600; Kelly v. Tilton, 2 Abb. 
 App. Dec. (N. Y.) 495; Koney v. Ward, 
 2 Daly (N. Y.), 295; Oakes v. Spaulding, 
 40 Vt. 347; Coggswell V. Baldwin, 15 Vt. 
 404; s. c, 40 Am. Dec. 636; Murray v. 
 Young, 12 Bush (Ky.), 337; McCaskillt;. 
 Elliott, 5 Strobh. (S. Car.) 196; s. c, 53 
 Am. Dec. 706; Pickering v. Orange, i 
 Scam. (111.) 338; Keightlinger z/. Egan, 65 
 111. 235; Laverone v. Mangianti, 44 Cal. 
 138; s. c, 10 Am. Rep. 269; Kertschacke 
 V. Ludwig, 28 Wis. 430; Partlo'ww. Hag- 
 garty, 35 Ind. 178. 
 
 But such previous knowledge must be 
 alleged and proved. Vrooman v. Law- 
 yer, 13 Johns. (N. Y.) 339; Fairchield v. 
 Bentley, 30 Barb. (N. Y.) 147^ Wormley 
 V. Gregg, 65 111. 251; Keightlinger v. 
 Egan, 65 111. 235; May v. Burdett, 9 Q. 
 
 B. 101. 
 
 It may, however, be inferred from cir- 
 cumstances. Rider v. White, 65 N. Y. 
 54; s. c, 22 Am. Rep. 600; Hudson v. 
 Roberts, 20 L. J. Exch. 299 ; Simson 
 V. London Gen. Omnibus Co., L. R. 8 
 
 C. P. 390. 
 
 The knowledge of the vicious habits 
 of an animal need not refer to circum- 
 stances of exactly the same kind. All 
 that the law requires to make the owner 
 liable is a knowledge of facts from which 
 he can infer that the animal is likely to 
 commit an act of the kind complained 
 of. Kittredge v. Elliott, 16 N. H. 77; 
 s. c, 41 Am. Dec. 717; Pickering v. Or- 
 ange, 2 111. 338; Keightlinger v. Egan, 65 
 111. 235; Flansbury v. Basin, 3 111. App. 
 531; McCaskill v. Elliott, 5 Strobh. (S. 
 Car.) 196; s. 1,., 53 Am. Dec. 706; Cock- 
 erham v. Nixon, 11 Ired. (N. Car.) L. 
 270; Partlow V. Haggarty, 35 Ind. 178. 
 Laverone v. Mangianti, 44 Cal. 138; s. c, 
 10 Am. Rep. 269; Tupper v. Clark, 43 
 Vt. 200; Rider v. White, 65 N. Y. 54; 
 s. c, 22 Am. Rep. 600. 
 
 It is immaterial how many times an 
 animal has shown vicious habits to the 
 knowledge of the owner. One, two, and 
 three instances have been held sufficient. 
 Woolf V. Chalker, 81 Conn. 121; Loomis 
 V. Terry, 17 Wend. (N. Y.) 496; s. c, 31 
 Am. Dec. 306; Kittredge v. Elliott, 16 
 N. H. 77; s. c, 41 Am. Dec. 717; Buck- 
 ley V. Leonard, 4 Denio (N. Y.), 500; 
 Wheeler v. Brant, 23 Barb. (N. Y.) 324; 
 Mann v. Weiand, 81* Pa. St. 243; Coggs- 
 well V. Baldwin, 15 Vt. 404; s. c, 40 
 Am. Dec. 686; Smith v. Pelah, 2 Str. 
 1264. 
 
 The degree of care required of the 
 owner of animals in the keeping of them 
 
 depends on the circumstances under 
 which they are kept, and it is a question 
 for the jury whether sufficient care' has 
 been taken in keeping them secure. Dick- 
 son V. McCoy, 39 N. Y. 400: Sullivan v. 
 Scripture, 3 Allen (Mass.), 564; Frazer w. 
 Kimler, 2 Hun (N. Y.), 514; Dolfinger v. 
 Fishback, 12 Bush. (Ky.) 474; Meredith 
 V. Reed, 26 Ind. 334; Hewes v. McNa- 
 mara, 106 Mass. 281 ; Ficken v. Jones, 2& 
 Cal. 618; Bennett v. Ford, 47 Ind. 264; 
 Griggs V. Fleckenstein, 14 Minn. 81; 
 Shawhan v. Clarke, 24 La. Ann. 390; 
 Hummell v.. Wester, i Bright (Pa.), 133. 
 
 So must.the driver of a horse, although 
 under ordinary circumstances only bound 
 to use ordinary care, use greater care 
 when in a crowded thoroughfare in a city 
 or near a military encampment, where 
 there is a concourse of people, than on 
 a country road. Powell i.'Deveney, 3 
 Cush. (Mass.) 300; Howard v. North 
 Bridgewater, 16 Pick. (Mass.) 189; Pri- 
 deaux v. Mineral Point, 43 Wis. 513; 
 McDonald v. Snelling, 14 Allen (Mass.), 
 290; Com. V. Worcester, 3 Pick. (Mass.) 
 462; Warner z'. Morrison, 3 Allen (Mass.), 
 564. 
 
 A keeper of bees was held not to 
 be liable for injuries to a passing team 
 whexe it was proved that the bees were 
 kept in the same place for eight or nine 
 years without ever molesting a horse be- 
 fore. The court held that the evidence 
 rebutted the idea of any notice to the de- 
 fendant, either from the nature of bees 
 or otherwise, that it would be dangerous 
 to keep them in that situation. Earl v. 
 Van Alstyne, 8 BarJ). (N. Y.) 630. , 
 
 Plaintiff was injured by a bull led 
 through a public street bydefendant's ser- 
 vant. It was proved that after the acci- 
 dent defendant had said that his servant 
 was careless in his manner of leading 
 the bull through the streets. Held, that 
 this evidence, together with defendant's 
 implied knowledge of the vicious tenden- 
 cies of a bull, might be taken as an ad- 
 mission that the bull needed- to be con- 
 trolled, and that the servant's care was 
 negligent; and that the plaintiff was not 
 guilty of contributory negligence in going 
 to the assistance of the servant. Linne- 
 han 'J. Sampson, 126 Mass. 506; s. c, 30 
 Am. Rep. 692. 
 
 In an action by a female plaintiff, who 
 had received injuries from a buck in de- 
 fendant's park, it was shown that the de- 
 fendant allowed the buck to roam at large 
 in the park with other deer; that he had 
 notices pasted in the park " Beware of the 
 
 583- 
 
liVJuxies by Wild Animals. 
 
 ANIMALS. 
 
 Uijuries by Wild Animals. 
 
 finement and does mischief to another, the owner is liable to make 
 satisfaction for the mischief so done, without further evidence of 
 negligence in him ; for every person who keeps such noxious and 
 useless animals must keep them at his peril.* 
 
 buck," and that at the season of the year 
 when the injuries were received bucks are 
 dangerous. The plaintiff stated that she 
 bad. often seen other people play with the 
 deer in the park, and that she did not 
 know deer were dangerous unless dis- 
 turbed. Hekl, that under the circum- 
 stances she was entitled to an action. 
 Congress and Empire Spring Ca. v. Ed- 
 gar, 99 U. S. 645. 
 
 And where a man tied his vicious bull 
 on his own land within reach of a pathway 
 which the public had been accustomed to 
 use, although it was not a highway, he 
 was held liable for injury to a passer on 
 the pathway. Glidden v. Moore, 14 Neb. 
 84; s. t., 45 Am. Rep. 98. 
 
 The amount of damages which can be 
 recovered from the owner of vicious or 
 mischievous animals can, however, never 
 be larger than the amount of damages ac- 
 tually sustained, without taking in consid- 
 eration remote results. .So where a hog 
 has injured crops the owner of the crops 
 can recover only so much damage as was 
 actually done, and not the value of the 
 crop at maturity. Gresham &. Taylor, 
 51 Ala. 505; Richardson v. Northrup, 66 
 Barb. (N. Y.) 85; Seamans v. Smith, 46 
 Barb. (N. Y.) 320; Armstrong v. Smith, 
 44 Barb. (N. Y.) 120. 
 
 Only on proof of malice or gross and 
 criminal negligence, with wanton disre- 
 gard of the rights of others, exemplary 
 damages may be allowed. Pickett v. 
 Crook, 20 Wis. 358; Elliott v. Herz, 29 
 Mich. 202; Keightlinger v. Egan, 65 111. 
 235; Von Fragstein v. Windier, 2 Mo. 
 App. 598; Meibus v. Dodge, 38 Wis. 300; 
 s. c, 20 Am. Rep. 6. 
 
 Although any one injured by an ani- 
 mal through the negligence of its owner 
 or keeper has an action for damages 
 against the owner, contributory neg- 
 ligence on the part of injured party 
 will bar a recovery. Drake v. Mount, 
 33 N. J. L. 441; Earhart v. Young- 
 blood, 27 Pa. St. 331; Loker v. Da- 
 mon, 17 Pick. (Mass.) 284; Shehan v. 
 Cornwall, 29 Iowa, 99; Coggswell v. 
 Baldwin, 15 Vt. 404; s. c, 40 Am. Dec. 
 686;Koney v. Ward, 36 How. Pr. (N. Y.) 
 255; Wheeler v. Brant, 23 Barb. (N. Y.) 
 324; Eberhart v. Reister, 96 Ind. 478. 
 
 A man has a natural right to defend 
 his domestic animals upon his own prem- 
 ises against the vicious attacks of other 
 animals, but he must do so in a reasona- 
 
 ble way, and take in consideration the 
 relative value of the animals. So held in 
 an action for the killing of two Irish thor- 
 oughbred setter pups that attacked a thor- 
 oughbred Plymouth Rock hen, and for 
 the killing of a hog which attacked a 
 chicken. Anderson v. Smith, 7 111. App. 
 354; Morse v. Nixon, 6 Jones (N. Car.) 
 293; Matthews v. Fiestel, 2 E. D. Smith 
 (N. Y.), 90; Leonard v. Wilkins, g Johns. 
 (N. Y.) 232. 
 
 But where the owner of an ass, which 
 he knew to be in the habit of pursuing 
 and injuring stock, permitted him to run 
 at large, wlien the ass attacked a. cow, 
 threw her down, and proceeded to stamp 
 upon her, the owner of the cow was 
 held justified in killing the ass to save the 
 cow. Williams v. Dixon, 65 N. Car^ 
 416. 
 
 And where a man shot four minks 
 which were chasing his geese he was jus- 
 tified in so doing, although it was in a 
 season of the year when it was unlawful 
 to kill minks. Aldrich v. Wright, 53 N. 
 H. 398; s. c, 16 Am. Rep. 339. 
 
 Injuries done by animals need not al- 
 ways be in consequence of their vicious 
 character to make the owner liable. Any 
 injury committed in playfulness will 
 make him liable in damages. Dickson 
 V. McCoy, 39 N. Y. 400. State v. Mc- 
 Dermolt, 7 Eastern Repr. (N. J.) 527. 
 
 Or where the mere unauthorized pres- 
 ence on a highway of an animal, as a 
 hog, causes the injury by frightening a 
 horse, the owner of the hog will be liable 
 although he did not know that the hog 
 was on the highway. Jewett v. Gage, 55 
 Me. 538. 
 
 1. Norris' Peake on Evidence, 486; 
 Earl V. Van Alstyne, 8 Barb. (N. Y.) 
 630; Van Leuven v. Lyke, i N. Y. 516; 
 s. c, 49 Am. Dec. 346; May v. Burdett, 
 9 Q. B. loi. 
 
 The keeping of wild animals for many 
 purposes has, however, come to be recog- 
 nized as proper and useful, and it seems 
 safe to say that the liability of the owner 
 or keeper for any injury done by them 
 to the person or property of others must 
 rest on the doctrine of negligence. A 
 very high degree of care is demanded of 
 those who have them in charge; but if, 
 notwithstandiiig such care, they are en- 
 abled to commit mischief, the case should 
 be referred to the category of accidental 
 injuries, for which a civil action will not 
 
 583 
 
Injuries by Soga. 
 
 ANIMALS. 
 
 Injuries by Dogs, 
 
 9. Injuries by Dogs. — At common law the dog is considered a 
 tame, harmless, and docile animal, and its owner not responsible for 
 any vicious or mischievous act it may do, unless he had a previous 
 knowledge of mischievous or vicious propensities of the dog.' 
 
 lie. Coolev on Torts. 349; Scribner v. 
 Kelley, 38 Barb. (N. Y.) 14. 
 
 Where members of an unincorporated 
 club kept a bear on their premises, and 
 the bear slipped his collar and injured a 
 man, who died in consequence, the mem- 
 bers of the club were all held liable, 
 including one who, being absent, knew 
 nothing of the bear. Vredenburg v. Be- 
 han, 33 La. Ann. 627. 
 
 1, Dearth v. Baker, 22 Wis. 73; Kert- 
 Schacke v. Ludwig, 28 Wis. 430; Slin- 
 ger V. Henneman, 38 Wis. 504; Fair- 
 child V. Bentley, 30 Barb. (N. Y.) 147; 
 Hinckley v. Emerson, 4 Cow. (N. Y.) 
 351; s. c, 15 Am. Dec. 383; Durden v. 
 Barnett, 7 Ala. 169; Sherfey v. Bartley, 
 4 Sneed (Tenn.), 58; State v. McDer- 
 mott, 7 Eastern Repr. (N. J.) 527. 
 
 In many of the States, iiowever, stat- 
 utes have been passed holding the owners 
 of dogs to a greater responsibility, and 
 dispensing with scienter in many cases. 
 Smith V. Montgomery, 52 Me. 178; Orne 
 ■V. Roberts, 51 N. H. no; Mitchell v. 
 Clapp, 12 Cush. (Mass.) 278; Pressey v. 
 Wirth, 3 Allen (Mass.), 191 ; Brewer v. 
 Crosby, 11 Gray (Mass.), 29; Woolf v. 
 Chalker, 31 Conn. 121; Jones v. Sher- 
 wood, 37 Conn. 466; Fish v. Skut, 31 
 Barb. (N. Y.) 333; Osincup v. Nichols, 49 
 Barb. (N. Y.) 145; Auchmuty v. Ham, 
 I Den. (N. Y.) 495; Falrchild v. Bentley, 
 30 Barb. (N. Y.) 147; Paff v. Slack, 7 Pa. 
 St. 254; Campbell v. Brown, 19 Pa. St. 
 359; Kerr v. O'Connor, 63 Pa. St. 341; 
 Smith V. Cansey, 22 Ala. 568; Swift v. 
 Applebone, 23 Mich. 252; Elliott v. Herz, 
 29 Mich. 202; Job V. Harlan, 13 Ohio St. 
 485; Gries v. Zeck, 24 Ohio St. 329; Mer- 
 acle V. Down, 64 Wis. 323; Chunot v. 
 Larson, 43 Wis. 536; s. c, 28 Am. Rep. 
 567. But see dissenting opinion of Ryan, 
 C. J., in Chunot v. Larson. 
 
 A young girl recovered a verdict of 
 $1450, which by a statutory provision is 
 to be doubled as the measure of dam- 
 ages, against the owner of a dog by 
 which she was severely bitten, producing 
 long and serious illness and injury. 
 Held, not excessive. In such a case it is 
 not error (i) to exclude a question to d. 
 physician, " if he thought there would be 
 any difficulty, in the hands of a good 
 physician, in having the little girl walk 
 in a reasonable time;" (2) to admit evi- 
 dence showing that the same dog had 
 previously attacked and bitten another 
 
 girl; (3) to admit the testimony of a phy- 
 sician of another case; (4) to exclude a 
 hypothetical question on cross-examina- 
 tion of a physician, in which the facts 
 supposed had not at that time appeared 
 in evidence; (5) to refuse to instruct the 
 jury "that the p^laintiff cannot recover 
 damages except those caused by the bite 
 of the dog, because nothing else is de- 
 clared on." Fitzgerald v. Dobson, 3 N. 
 Engl. Repr. (Me.) 394. 
 
 Where a dog is ferocious to the knowU 
 edge of his owner, who had sometimes 
 confined and muzzled him, it is in an 
 action for injury by the bite of such a 
 dog not necessary to show that he had 
 ever bitten anybody. Gooden v. Blood, 
 
 52 Vt. 251; s. c, 36 Am. Rep. 751; Rider 
 V. White, 65 N. Y. 54; s. c, 22 Am. 
 Rep.- 600. 
 
 Nor is it material to show that a dog 
 is generally good-behaved where it was 
 proved that on two occasions he had 
 shown a vicious character. Mann v. 
 Weiand, 81* Pa. St. 243; Buckley v. Leo- 
 nard, 4 Denio (N. Y.), 500. 
 
 The owner of a dog in the habit of 
 worrying and injuring the stock of others, 
 who keeps it with notice thereof, is liable 
 for the injury it commits. Hinckley v. 
 Emerson, 4 Cow. (N. Y.) 351; s. c, 15 
 Am. Dec. 383. 
 
 Knowledge of the vicious habits of a 
 dog by the agent or servant in charge is 
 knowledge of the owner; and evidence to 
 show that the agent had such knowledge 
 is admissible in an action for damages 
 against the principal. Corliss v. Smith, 
 
 53 Vt. 532; Jeffrey v. Bigelow, 13 Wend. 
 (N. Y.) 518; s. c, 28 Am. Dec. 476. But 
 see Twigg v. Ryland, 62 Md. 380; s. t., 
 50 Am. Rep. 226. 
 
 To make one liable for injuries inflicted 
 by a vicious dog, he must be the owner 
 or keeper. Any one harboring a dog and 
 permitting him, so to sav, as one of the 
 family, is the owner or keeper; but not 
 when he suffers a dog temporarily to stay 
 at his premises, as the dog of a boarder 
 or workman. Frammell v. Little, 16 
 Ind. 251; Cumraings v. Riley, 52 N. H. 
 368; Marsh v. Jones, 21 Vt. 378; s. c, 52 
 Am. Dec. 67; Wilkinson v. Parrott, 32 
 Cal. 102; Barrett v. Maiden, etc., R. Co., 
 3 Allen (Mass.), loi; Auchmuty v. Ham, 
 I Den. (N. Y.)495. 
 
 A dog kept by the superintendent of 
 the stables" of a horse railroad on the 
 
 584 
 
Diseased Cattle. 
 
 ANIMALS. 
 
 Diseased Cattle. 
 
 10. Diseased Cattle. — It is not unlawful for the owner of cattle 
 aflected with a contagious disease to keep them on his own prem- 
 
 premises and with the knowledge and 
 implied consent of the general superin- 
 tendent of the company was considered 
 the property of the company so as to 
 make the company liable for injuries 
 inflicted by the dog. Barrett v. Maiden, 
 etc., R. Co.,. 3 Allen (Mass.), loi. 
 
 But where a dog was kept and licensed 
 by the superintendent of the poor-farm 
 of a city with the knowledge of one of 
 the overseers of the poor, and with his 
 permission was allowed the run of the 
 farm, and fed with food furnished by the 
 city for the poor-farm, this did not make 
 the city the keeper of the dog. CoUingill 
 V. Haverhill, 128 Mass. 218. 
 
 One member of a firm may be sued for 
 ^ the keeper of a dog belonging to and 
 kept by the firm, where the dog has done 
 damage. Grant v. Ricker, 74 Me. 487. 
 And see Smith v. Jaques,. 6 Conn. 530; 
 Spalding v. Oakes, 42 Vt. 343; Brady v. 
 Ball, 14 Ind. 317. 
 
 One who knowingly and wrongly suf- 
 fers a ferocious and vicious dog to go 
 freely about his grounds and to inflict an 
 injury is liable, although the injured per- 
 son was guilty of some negligence. 
 Lynch v. McNally, 7 Daly (N. Y.), 132; 
 Buckley v. Leonard, 4 Denio (N. Y.), 
 501; Carroll v. Staten Island R. Co., 58 
 N. Y. 136; s. t., 17 Am. Rep. 221. 
 
 Offering a dog lying unfastened in 
 front of its owner's store a piece of candy, 
 with no knowledge of its vicious habits, 
 is not such a contributory negligence that 
 it will prevent plaintiff from claiming 
 damages if he is bitten by the dog. Lynch 
 V. McNally, 73 N. Y. 347. 
 
 And where a boy thirteen years old hit 
 a dog with a sticlc to prevent him from 
 crossing a narrow foot-bridge which the 
 dog had a right to pass, and was bitten 
 by the dog, it was held not to be contrib- 
 utory negligence in a boy of his age. 
 Plumley v. Birge, 124 Mass. 57; s. c, 26 
 Am. Rep. 645. And see Logue v. Link, 
 4 E. D. Smith (N. Y.), 63. 
 
 In an action for damages for injuries 
 to a child four years and eleven months by 
 the bite of a dog, any injury to his nerv- 
 ous system or any loss in his mental or 
 physical capacity may be taken in con- 
 sideration to fix the amount of damages; 
 and so it was proper to show the effect of 
 the shock to the nervous system by prov- 
 ing that ever since the injury the child 
 has shown signs of fright and excitement 
 at the sight of any dog. Roswell v. Les- 
 lie, 133 Mass. 589. And see Ballou v, 
 Farnum, ii Allen (Mass.), 73; Tyson v. 
 
 585 
 
 Booth, 100 Mass. 258; Coleman v. New 
 York, etc., R. Co., 106 Mass. 160. 
 
 A man may keep a dog for the neces- 
 sary defence of his house, his garden, 
 his fields or other property and may cau- 
 tiously use him for that purpose at night- 
 time; but if he permits a mischievous 
 dog to be at large on his premises and a. 
 person is bitten by him in daytime, the 
 owner is liable in damages, though the 
 person injured be at the lime trespassing 
 on the grounds of the owner by hunting 
 in his woods without license. Loomis v. 
 Terry, 17 Wend. (N. Y.) 496; s. c, 31 
 Am. Dec. 306. 
 
 Principles of humanity may in no case 
 be violated, or the owner of the dog will 
 be held liable in damage. Woolf v. Chal- 
 ker, 31 Conn. 121; Sherfey v. Bartley, 4 
 Sneed (Tenn.), 58; Kelly v. Tilton, 3 
 Keyes (N. Y.), 263; Logue v. Link, 4 E. 
 D. Smith (N. Y.). 63; Meibus v. Dodge, 
 38 Wis. 300; s. c, 20 Am. Rep. 6; Saw- 
 yer V. Jackson, 5 N. Y. Leg. Obs. 380; 
 Smith V. Place, 11 Pitts. Leg. J. 145. 
 
 The owner of a dog which was left 
 with a sleigh near the sidewalk was held 
 liable for injuries to a child of seven 
 years who meddled with the whip in the 
 sleigh and was thrown down and bitten 
 by the dog; it being proved that he had 
 knowledge of the vicious habits of the 
 dog, who was in the habit of attacking 
 people while left to guard his team. 
 Meibus v. Dodge, 38 Wis. 300; s. c, 20 
 Am. Rep. 6. , 
 
 It would ^have been otherwise if the 
 child had been in the care and custody of 
 an adult. Munn ». Reed, 4 Allen (Mass.), 
 431; Logue V. Link, 4 E. D. Smith, (N. 
 Y.), 63. 
 
 The owner of a watchdog kept chained 
 by day and loosed at night is liable with- 
 out further proof of scienter to one who 
 was bitten byjhe dog while passing the 
 premises on the highway at night. JMont- 
 gomery v. Koester, 35 La. Ann. 1091; ». 
 c, 48 Am. Rep. 253. 
 
 Also to one who was lawfully on his 
 premises, where he neglected to tie the 
 dog in the morning. Goode v. Martin, 57 
 Md. 606; s. c, 40 Am. Rep. 448; MuUer 
 V. McKesson, 73 N. Y. 195; s. c, 29 Am. 
 Rep. 123. 
 
 Where dogs of several owners are 
 found in company doing mischief, as kill- 
 ing sheep, each owner is responsible for 
 the injury done by his own dog and no 
 more. Auchmuty v. Ham, i Denio (N. 
 Y.), 495; Van Steenburgh v. Tobias, 17 
 Wend. (N. Y.) 562; s. c, 31 Am. Dec, 
 
Injiiries by Dogs. 
 
 ANIMALS. 
 
 Diseased Cattle. 
 
 ises, and he will not be liable if the disease is communicated to 
 other cattle in adjoining lots if, while knowing of the diseased con- 
 dition of his cattle, he is not negligent in the manner of keeping 
 them.* 
 
 310; Russell V. Tomlinson, 2 Conn. 206; (N. Car.) 259; s. c, 51 Am. Dec. 387. 
 
 Adams v. Hall, 2 Vt. 9; Buddington v. 
 Shearer, 20 Pick. (Mass.) 477. 
 
 In order to identify dogs charged with 
 killing sheep, evidence may be admitted 
 that two dogs, one of which was known 
 to have taken part in the killing, were 
 seen in company with each other at an- 
 other time. Carroll v. Weiler, i Hun 
 (N. Y.). 605. 
 
 And they'may be recognized by their 
 barking. Wilbur v. Hubbard, 35 Barb. 
 (N. Y. 303. 
 
 To justify a man in killing the dog of 
 another he must show that the animal 
 was in the act of destroying his property, 
 and that the killing was absolutely neces* 
 sary to preserve his property or person. 
 Brpwn V. Hoburger, 52 Barb. (N. Y.) 15; 
 Perry v. Phipps, 10 Ired. L. (N Car.) 
 259; s. c, 51 Am. Dec. 387; Henckley v. 
 Emerson, 4 Cow. (N. Y.) 351; s. c, 15 
 Am. Dec. 383; King v. Kline, 6 Pa. St. 
 318; Canefox u. Crenshaw, 24 Mo. 199; 
 Brent v. Kimball, 60 111. 2ii; s. c, 14 
 Am. Rep. 35; Leonard v. Wilkins. 9 
 Johns. (N. Y.) 233; Bradford v. McKib- 
 ben, 4 Bush (Ky ), 545. 
 
 But where under the statute it is lawful 
 for any person to kill a dog which has 
 killed or maimed a sheep or other do- 
 mestic animal, it is not necessary that the 
 dog should be upon the premises of the 
 owner of such animal, nor in the act of 
 killing, nor, that he should have killed 
 more than one such animal, nor that the 
 owner of the dog should have notice of 
 the killing. Carpenters'. Lippitt, 77 Mo. 
 242; Marshall v. Blackshire, 44 Iowa, 
 
 475- 
 
 One may kill a dog that attacks him on 
 the highway, or any furious or rabid dog. 
 Reynolds v. Phillips, 13 111. App. 557; 
 Putnam v. Payne, 13 Johns. (N. Y.) 312; 
 Perry w. Phipps, 10 Ired. L. (N, Car.) 
 259; s. c. , 51 Am. Dec. 387; Brown v. 
 Carpenter, 26 Vt. 638; Dunlap ». Snyder, 
 17 Barb. (N. Y.) 561; Maxwell v. Palmer- 
 ton, 21 Wend. (N. Y.) 407. 
 
 But he has no right to kill a dog on the 
 owner's premises on the pretence that he 
 IS a nuisance and has on former occasions 
 bitten other persons; and he will be lia- 
 ble in damages to the owner if he kill the 
 dog on the owner's premises after the 
 dog has been driven off and there is no 
 longer any danger of his biting him at 
 that time. Perry v. Phipps, 10 Ired. L. 
 
 And see Uhlein v. Cromack, 109 Mass. 
 273- 
 
 Under statutes requiring dogs to be 
 duly licensed and collared it is lawful for 
 an oiBcer, duly authorized to execute 
 such regulations, to kill unlicensed dogs 
 even on their owner's premises if the stat- 
 ute includes the words "whenever and 
 wherever found." Blair v. Forehand, 
 100 Mass. 136; s. c, I Am. Rep. 94; 
 Morewood v. Wakefield, 133 Mass. 240. 
 But see Bishop v. Fahay,i5 Gray (Mass.), 
 61; Kerr v. Seaver, ii Allen (Mass.), 151, 
 
 But the owner of a dog cannot be made 
 liable to arrest, fine, and imprisonment 
 under such act for refusing to license or 
 collar his dog. Mayor, etc., v. Meigs, i 
 McArthur (D. C), 53; s. c, 29 Am. Rep. 
 578. 
 
 Although under some statutes and 
 local police regulations it may be lawful 
 to kill a dog not duly licensed, this will 
 not exonerate the owner of a dog which 
 kills another although the latter was not 
 so licensed. Heisrodt v. Hackett, 34 
 Mich. 283; s. c, 22 Am. Rep. 529. 
 
 It is not a vicious habit in a dog to 
 drive off trespassing cattle from his mas- 
 ter's premises, and the owner of the 
 cattle has no right to kill him while so 
 doing unless the dog is a nuisance in the 
 neighborhood. Spray v. Ammermann, 
 66 111. 309. 
 
 1. Fisher v. Clark, 41 Barb. (N. Y.) 
 329; Mills V. New York, etc., R. Co., 41 
 N. Y. 619. 
 
 And even if he keeps them on a not 
 inclosed part of his property where other 
 cattle also have a right to come he will 
 not be guilty of negligence if he gives the 
 owners of such other cattle notice of the 
 diseased condition of his cattle. Walker 
 V. Herron, 22 Tex. 55. 
 
 This rule does not hold good in Illinois. 
 Mount V. Hunter, 58 111. 246; Herrick v. 
 Gary, 83 III. 85. 
 
 In case of trespass by diseased cattle, 
 in consequence of which the disease is 
 communicated to others, the owner will 
 be liable even if he is unaware of the dis- 
 eased state of his cattle. Barnum v. 
 Van Dusen, 16 Conn. 200. But see 
 Noyes v. Colby, 30 N. H. 143. 
 
 Where defendant allowed diseased 
 sheep to escape through a defect in his 
 part of a partition fence and to commu- 
 nicate the disease to plaintiff's sheep, be 
 
 586 
 
Xiseased Cattle. 
 
 ANIMALS. 
 
 Strajrs and Bunaways, 
 
 11. Stray and Runaway Horses and Cattle.— In States where the 
 •common-law rule obtains that every man must fence-his own cattle 
 in and keep them safe or respond in damages for any injuries they 
 may cause, the owners of stray horses and cattle are liable in dam- 
 
 will be liable, and the fact that the dis- 
 ease had been previously communicated 
 'to his sheep by one of plaintiff's sheep 
 will not exonerate him. ' Herrick v. 
 Gary, 83 111. 85. 
 
 E. was in the occupancy of the land of 
 W. as a mere licensee, and pastured upon 
 ,it a iiock of sheep affected with an infec- 
 tious disease. Immediately after E. took 
 ihis sheep away W. moved upon the land 
 with his sheep, and the disease was com- 
 jnunicated to the sheep of W., who was 
 ignorant of the nature of the disease and 
 its mode of communication, but had been 
 falsely informed by E. that there was no 
 .•danger. Held, that E. was liable to W. in 
 ■damages. Eaton v. Winnie, 20 Mich. 
 156; s. c, 4 Am. Rep. 377. 
 
 But where by a railroad accident a 
 number of swine broke loose and were, 
 under the directions of the manager of 
 ahe railroad, driven into a neighboring 
 barn-yard while the owner of the yard 
 was absent, but who on his return did 
 ■not object, but assisted in feeding them 
 and also in reshipping them, and rendered 
 a bill for food, services, and damages to 
 ^rass; and where it was afterwards found 
 that the swine were diseased, which dis- 
 ease was communicated to the swine of 
 the owner of the yard. — he could not re- 
 -cover. Hawks v. Locke, 139 Mass. 205; 
 s. c, 52 Am. Rep. 702. 
 
 The owner of animals affected with a 
 contagious disease has no right to bring 
 them in contact with other animals, as to 
 water them at a public tank used by 
 sound animals of other owners; or to 
 bring a glandered horse upon the farm of 
 another who has sound horses. If by 
 any such means the disease should be 
 ■communicated he will be liable in dama- 
 ges. Mills V. New York, etc., R. Co., 
 .2 Rob. (N. Y.) 326; Hite i,. Blandford, 
 
 45 111. 9. 
 
 Where under a statute it is unlawful to 
 -drive wilfully and knowingly diseased 
 cattle, defendant's knowledge of the dis- 
 ■eased state of his cattle must be shown. 
 Bradford v. Floyd, 80 Mo. 207. 
 
 The sale of diseased animals where the 
 vendor knows of the presence of the dis- 
 ease and fails to communicate his knowl- 
 edge to the purchaser, or through fraudu- 
 lent representations induces him to buy, 
 makes the vendor liable for all the dam- 
 .age resulting from the spread of the dis- 
 ease among the purchaser's cattle, and it 
 makes no difference whether the sale 
 
 was made by the vendor himself or 
 through his agent. Fultz v. Wycoff, 25 
 Ind. 321; Jeffrey v. Bigelow, 13 Wend. 
 (N. Y.) 518; s. c, 28 Am. Dec. 476; Hite 
 V. Blandford, 45 111. g. 
 
 The damages must, however, be a direct 
 result of the sale of the diseased cattle, 
 and not of some remote cause, as the 
 breaking of the contract by a third party 
 on account of the purchase of the dis- 
 eased cattle. Grain v. Petrie, 6 Hill 
 (N. Y.) 523; s. c, 41 Am. Dec. 765. 
 
 In States, as in Illinois, where it is 
 prohibited by statute to import during 
 certain seasons of the year a certain class 
 of cattle, as Texas or Cherokee cattle, for 
 the reason that those cattle at these sea- 
 sons generally have a latent disease 
 known as Texas fever, which they com- 
 municate to native herds, one driving 
 such cattle into these States is liable for 
 all damages resulting from such impor- 
 tation; and it does not matter whether 
 the damage resulted from this particular 
 kind of disease or not. Sangamon Dis- 
 tilling Co. u. Young, 77 111. 197. 
 
 But actual damage must have been 
 done. It is not enough that the cattle 
 is merely imported. Davis v. Walker, 
 60 111. 452; Newkifk v. Milk, 62 111. 
 173- 
 
 Where one received cattle from defend- 
 ant and put them to pasture with his 
 own cattle, and afterward discovered 
 that some of them were diseased Texas 
 cattle, and still kept them and bought 
 some of them, it was held that he could 
 recover only for damages done before he 
 knew that the cattle were Texas cattle. 
 Harris v. Hatfield, 71 111. 298. 
 
 These statutes have been doubted, but 
 upheld in the State courts, and are de- 
 clared unconstitutional in the U. S. Su- 
 preme Court. Yeazel v. Alexander, 58 
 111. 254; Stevetis V. Brown, 58 111. 289; 
 Somerville v. Marks, 58 111. 371; Wilson 
 V. Kansas City, etc., R. Co., 60 Mo. 184; 
 Husen v. Hannibal, etc., R. Co., 60 Mo. 
 226; Railr. Co. v. Husen, 95 U. S.~465. 
 And see Gilmore v. Railr. Co., 67 Mo. 
 323; Urton V. Sherlock, 75 Mo. 247. 
 
 To prove the value of cattle lost by dis- 
 ease in an uninhabited country where there 
 is no market, evidence of their value in 
 the nearest market may be received, al- 
 though such market may be at a distance 
 of 225 miles or more. Sellar v. Clelland, 
 2 Col. T. 532; Cofield v. Clark, 2 Col. 
 T. loi. 
 
 587 
 
strays and Sunaways. 
 
 ANIMALS. 
 
 Impounding Strays. 
 
 ages for injuries done bythem if they do stray away on account 
 of their negUgehce. And so where horses run away through the 
 negligence of their owner he will be liable.* 
 
 Impounding Strays. — A power to impound stray animals and to 
 sell them after the lapse of a specified time in a specified manner 
 is frequently conferred on municipalities. In order to render such 
 impounding and sale valid, the municipality must comply strictly 
 with the statutory provisions.* 
 
 1. Barnes v. Chapin, 4 Allen (Mass.), 
 444; Lyons v. Merrick, 105 Mass. 76; 
 Dickson v. McCoy, 39 N. Y. 400; Good- 
 man V. Gay, 15 Pa. St. 188; s.c, 53 Am. 
 Dec. 589; Fallon v. O'Brien, 12 R. I. 518; 
 s. c, 34 Am. Rep. 713; Shawhan v. 
 Clarke, 24 La. Ann. 390; Weldon v. Har- 
 lem R. Co., 5 Bosw. (N. Y.) 576; Sulli- 
 van o. Scripture, 3 Allen (Mass.), 564; 
 Kennedy j. Way, Bright. (Pa.) 186; 
 Coles V. Burns, 21 Hun (N. Y.), 246. 
 
 But where horses escaped from their 
 inclosure against the will of their owner, 
 and he went immediately in pursuit, it 
 was held that under such circumstances 
 they were not running at large. Kinder 
 s-. 'Gillespie, 63 111. 88; 
 
 But a mare with a colt at larger on a 
 highway are a public nuisance, and the 
 owner is liable for damages whether the 
 animal is vicious or not. Baldwin v. 
 Ensign, 49 Conn. 113; s. c, 44 Am. Rep. 
 205. 
 
 A stolen horse left by the thief tied to 
 a post on a public xoaA is not an estray. 
 Hall V. Gildersleeve, 36 N. J. L. 235. 
 
 Neither is an animal in its accustomed 
 range, in States where they are allowed 
 to roam at large, out of the custody, of 
 its owner or an estray. Jones v. State, 3 
 Tex. App. 498; Shepherd v. Hawley, 4 
 Oreg. 206; Roberts v. Barnes, 27 Wis. 
 422; Walters v. Glats, 29 Iowa, 437. 
 
 Cattle may lawfully be driven on the 
 highway, and if they escape from their 
 driver into unfenced fields or through de- 
 fective fences their owner will not be lia- 
 ble for the damage they may do if they 
 liave been properly managed and the 
 driver uses reasonable efforts to remove 
 them from such fields. Stackpole v. 
 Healy, 16 Mass. 33; Lyman v. Gipson, 18 
 Pick. (Mass.) 422; Hartford v. Brady, 114 
 Mass. 466; s. c, ig Am. > Rep. 377; Mc- 
 Donald V. Pittsfield, etc., R. Co., 115 
 Mass. 564; Thompson v. Corpstein, 52 
 Cal. 653; Little v. Lathrop, 5 Greenl. 
 (Me.) 356; Lord v. Wormwood, 29 Me. 
 282; s. c, 50 Am. Dec. 586; Avery v. 
 Maxwell, 4 N. H. 36; Mills v. Stark, 4 
 N. H. 512; s. c, 17 Am. Dec. 444. 
 
 And where the owner of the fields on 
 which they trespassed drove them into 
 
 the field of a third party the owner of the 
 cattle shall not be liable. Hartford v. 
 Brady, 114 Mass. 466; s. c, 19 Am. Rep. 
 377. 
 
 Neither is the owner of horses working 
 at the highway and casually committing 
 a slight trespass liable. Cool v. Grum- 
 met, 13 Me. 250. 
 
 A horse attached to a wagon was left 
 standing unhitched in a street, and was 
 struck by a broken telegraph-wire, which 
 caused the horse to run away, resulting 
 in his death. It was held that the negli- 
 gence of the driver in leaving the horse 
 unhitched was such that the owner could 
 not recover. Western Union Tel. Co. v. 
 Quinn, 56 111. 319; McCahill v. Kipp, a 
 E. D. Smith (N. Y), 413. 
 
 Plaintiff, without fault, while lawfully 
 travelling in the highway, was injured by 
 the defendant's horse, which had been so 
 negligently hitched by his servant that it 
 broke away and ran into the wagon in 
 which plaintiff was riding. Held, that 
 although it was proper to consider the 
 character of the horse as bearing on the 
 question of negligence, in such a case the 
 question is not whether the defendant 
 knew that the horse had a propensity to 
 break his fastenings, but whether the ser- 
 vant, under the circumstances, exercised 
 the care of a prudent man in hitching the 
 horse. Rumsey v. Nelson, 58 Vt. 590. 
 
 Turning a horse loose in the streets of 
 a populous city makes the owner liable 
 for ail injuries done by such horse, and 
 that whether he knows that the horse is 
 vicious or not. Goodman v. Gay, 15 Pa. 
 St. 188; s. c, 53 Am. Dec. 589; Barnes 
 V. Chapin, 4 Allen (Mass.), 444. 
 
 But where the owner of a runaway 
 horse was not guilty of negligence he was 
 held not to be liable to the owner of 
 another horse and wagon injured by the 
 runaway. Shawhan v. Clarke, 24 La. 
 Ann. 390; Weldon v. Harlem R. Co., 5 
 Bosw. (N. Y.) 576; Sullivan v. Scripture, 
 3 Allen (Mass.), 564; Kennedy v. Way, 
 Bright. (Pa.) 186. 
 
 2. Moore v. State, 4 Am. & Eng. R. 
 R. Cas. 485; s. c, 10 Lea (Tenn.), 35; 
 Rounds v. Stetson, 45 Me. 296; Rounds. 
 w. Mansfield, 88 Me. 586; Gilmore v^ 
 
 588 
 
Bailors of Animals. 
 
 ANIMALS. Duties and Liabilities of Bailees. 
 
 12. Bailors of Animals, — The owner of animals is bound to bring^ 
 to the notice of those dealing with his animals, as bailees for hire^ 
 farriers, agisters, keepers of boarding-stables, etc., any vicious trick 
 or habit his animals may have, as biting and kicking in horses, 
 horning in cattle, biting in dogs ; else he will be liable for any in- 
 jury inflicted upon such persons in consequence of such vicious 
 habits.i 
 
 13. Duties and Liabilities of Bailees. — A bailee for hire, as an agist- 
 er, engages by his contract to agist cattle, to exercise ordinary 
 care in the keeping of them, or such a care as a man of ordinary 
 prudence would use in the performance of the same duty toward 
 his own property.* 
 
 Holt, 4 Pick. (Mass.) 258; Osgood v. 
 Green, 33 N. H. 318; Bills v. Kinson, I 
 Foster (N. H.), 448; IVIayor, etc., v. Om- 
 burg, 22 Ga. 67; Adams v. Adams, 13 
 Pick. (Mass.) 384; Smith v. Huntingdon, 
 3 N. H. 76; Clark v. Lewis, 35 111. 417; 
 Willis V. Legris, 45 111. 289; Friday v. 
 Floyd, 63 111. 50; White v. Tallman. 2 
 Dutch (N. J.), 67; Knoxville v. King, 7 
 Lea (Tenn.), 441. Compare Slessman v. 
 Crozier, 80 Ind. 487. 
 
 But this power cannot be exercised 
 without previous actual or constructive 
 notice to the owner and the establishment 
 of the forfeiture by legal proceedings. 
 Rosebaugh v. Saffin. 10 Ohio, 32; Jar- 
 man V. Patterson, 7 Monroe (Ky.), 647; 
 McKee v. McKte, 8 B. Monr. (Ky.) 433; 
 Heise v. Columbia, 6 Rich. (S. Car.) 404; 
 Whitfield V. Longest, 6 Ired. L. (N. Car.) 
 288; Donovan v. Vicksburg, 29 Miss. 247; 
 Poppen V. Holmes, 44 111. 362; Daist v. 
 People, 51 111. 286; Kinder v. Gillespie, 
 63 III. 88; Cincinnati v. Buckingham, 10 
 Oliio, 257; Cotter v. Doty, 5 Ohio, 395; 
 Varden v. Mount, 78 Ky. 86. 
 
 Notice by public advertisement is 
 deemed sufficient. There is no necessity 
 fur personal notice. Shaw v. Kennedy, 
 N. Car. Term R. 158; Helen v. Noe, 3 
 Ired. L. (N. Car.) 493; Whitfield v. 
 Longest, 6 Ired. L. (N. Car.) 168; Gil- 
 Christ w. Smidling, 12 Kans. 263; Goose- 
 link V. Campbell, 4 Iowa, 296; Phillips 
 V. Allen, 41 Pa. St. 481. Compare Willis 
 V. Legris, 45 111. 289; Bullock v. Geomble, 
 45 111. 218; Poppen w. Holmes, 44 111. 360. 
 ' Fines may be imposed upon the owners 
 of cattle found straying within munici- 
 pal limits, and in default of payment 
 of the fine sale or forfeiture of the cattle 
 may be ordered. Kennedy v. Sowden, i 
 McMull. L. (S. Car.)325; Crosby?/. War- 
 ren, I Rich. L. (S. Car.) 385; White v. 
 Tallman, 2 Dutch (N. J.), 67; Mayor of 
 Mobile V. Yuille, 3 Ala. 137; Roberts v. 
 Ogle, 30 111. 359; Waco v. Powell, 32 
 Tex. 258; Municipality v. Blanc, i La. 
 
 Ann. 385; Kinder v. Gillespie, 63 111. 88. 
 See Municipal Corporations. 
 
 1. Keshan v. Gates, 2 Thomp. & C. 
 (N. Y.) 288; Campbell v. Page, 67 Barb. 
 (N. Y.) 113; Hadley v. Cross, 34 Vt. 586. 
 
 But this does not extend to injuries in- 
 flicted in consequence of habits which 
 are not dangerous per se, as when a horse 
 is in the habit of pulling back upon the 
 halter when restless. Keshan v. Gates, 2- 
 Thomp & C. (N. Y.) 288. 
 
 In letting a horse the owner impliedly 
 undertakes that the animal shall be capable 
 of performing the journey for which he is 
 let; and if without fault of the hirer he 
 becomes disabled by lameness or sick- 
 ness, any expense the hirer may have to 
 incur can be recouped against the charges 
 of the bailor. Leach v. French, 6g Me. 
 389; s. c, 31 Am. Rep. 296; Home v. 
 Meakin, 115 Mass. 326; Hadley z\ Cross, 
 34 Vt. 586. 
 
 One who hires out horses is not re- 
 sponsible to a third party for damages 
 done by the reckless driving or other 
 negligence of the hirer; and so in case of 
 a borrowed horse. Bard v. Yohn, 26 Pa. 
 482. 
 
 But when he intrusts his wagon and 
 horse to an obviously incompetent per- 
 son, as a mere boy, he is liable. Herlihy 
 V. Smith, 116 Mass. 265; Mooers ii. 
 Larry, 15 Gray (Mass.), 451. 
 
 2. Phelps V. Paris, 39 Vt. 511; Rev v. 
 Toney, 24 Mo: 600; s. c, 69 Am. Dec. 
 444; McCarthy v. Wolfe, 40 Mo. 520; 
 Winston v. Taylor, 28 Mo. 82; s. i,., 75 
 Am. Dec. H2. 
 
 He must keep his grounds properly in- 
 closed. Cecil V. French, 4 Mart. N. S. 
 (La.) 256; s. c, 16 Am. Dec. 171. 
 
 A horse-trainer, farrier, or veteri- 
 nary surgeon has a lien on animals on 
 which he has bestowed skill or labor. 
 Harris v. Woodruff, 124 Mass. 205; 
 Grinnell v. Cook, 3 Hill (N. Y.), 485; s. 
 c, 38 Am. Dec. 663; Lord v. Jones, 24 
 Me. 439; s. c, 41 Am. Dec. 391, 
 
 589 
 
Bailors and Bailees. 
 
 ANIMALS— ANNEXED. 
 
 Sefimtion, 
 
 ANNEXED— ANNEXATION. (See also FIXTURE.)— Attached to, 
 added to, connected with. The fastening of chattels to the freehold, 
 
 So where an agister agreed to pasture 
 sheep for a certain sum and allowed them 
 to escape through a defective fence, which 
 he was bound to maintain, into the field 
 of his neighbor, where the sheep caught 
 the "scab" from his neighbor's sheep, 
 he was held responsible for the damages. 
 Sargent w. Slack, 47 Vr. 674; s. t., 19 
 Am. Rep. 136. 
 
 The agistment or other bailment of 
 cattle ddes not relieve their owner from 
 liability for damage done by their stray- 
 ing from the bailee's pasture. Blaisdell 
 V. Stone, 60 N. H. 507. 
 
 He is responsible for the acts of his 
 servants; and where an animal intrusted 
 to his care is injured by an act of his 
 servant while in his employment, he will 
 be liable though he may have given no 
 express assent to the use of the animal. 
 Sinclair v. Pearson, 7 N. H. 219. 
 
 Where loss or injury occurs and no 
 negligence on the part of the bailee is 
 shown, he will not be liable. So where 
 A sold a cow to B and B asked and re- 
 ceived permission to leave her for a. 
 while in A's pasture, and the cow disap- 
 peared although the fences were in good 
 order, B had to bear the loss. Race v, 
 Hansen, 12 111. App. 605. 
 
 So is a trainer to whom a horse is de- 
 livered to be broken bound only to ordi- 
 nary care. Francis v. Shrader, 67 111. 
 272. 
 
 At common law an agister or stable- 
 keeper has no lien on animals intrusted 
 to his care unless by special contract. 
 Miller v. Marston, 35. Me. 153; s. c, 56 
 Am. Dec. 694; Grinnell v. Cook, 3 Hill 
 (N. Y.), 485,491; o. c, 38 Am. Dec. 663; 
 Whitlock V. Heard, 13 Ala. 776; s. c, 
 48 Am. Dec. 73; Bissell v. Pearce, 28 
 Gray (Mass.), 183; Goodrich, v, Willard, 
 7 Gray (Mass.), 184; Lewis v. Tyler, 23 
 Cal. 364; Wills V. Barrister, 36 Vt. 
 220. 
 
 In New Hampshire, Massachusetts, 
 Maine, Vermont, Connecticut, New 
 York, New Jersey, Ohio, Indiana, Illi- 
 nois, Michigan, Wisconsin, Iowa, Min- 
 nesota, Kansas, Nebraska, Kentucky, 
 Tennessee, Missouri, California, Oregon, 
 Nevada, Colorado, Dakota, Montana, 
 and Wyoming statutes have been en- 
 acted giving to ranchmen, stable-keep- 
 ers, agisters, or keepers of horses and 
 cattle a lien thereon for their charges for 
 pasturing and board, and a special lien 
 for livery-stable keepers in Pennsylvania, 
 Wisconsin, Minnesota, Iowa, Delaware, 
 Virginia, Alabama, Florida, and New 
 
 Mexico. In Ohio, Nebraska, North 
 Carolina, Kentucky, Tennessee, Arkan- 
 sas, Dakota, Georgia, Alabama, Missis- 
 sippi, and South Carolina the owner of 
 a stud-horse or jackass to which mares 
 or jennets are turned has a lien for his 
 charges oa the colts or isSue ; and in Ne- 
 braska, North Carolina, Dakota, Geor- 
 gia, Alabama, Mississippi, and South 
 Carolina this extends to the owners of 
 bulls. Stimson's Am. Statute Law, § 
 4642; Smith V. Marden, 60 N. H. 509. 
 
 Where one borrows or hires a horse 
 he is also bound to use the same cafe 
 which any prudent man takes in the use 
 of his horse. He is bound to drive it mod- 
 erately and to supply it with suitable 
 food; to abstain from using it when ex- 
 hausted, and if possible give it proper 
 medical aid when sick. Carrier v. Dor- 
 rance, 19 S. Car. 30; Whitehead v. Van- 
 derbilt, 10 Daly (N. Y.), 214; Edwards 
 ■V. Carr, 13 Gray (Mass.), 234; Eastman 
 V. Sanborn. 3 Allen (Mass.), 594; Ban- 
 field TJ. Whipple, 10 Allen (Mass.). 27; 
 Thompson v. Harlow, 31 Ga. 348; Row- 
 land V. Jones, 73 N. Car. 52; McNeills 
 V. Brooks, I Yerg. (Tenn.) 73; Graves 
 V. Moses, 13 Minn. 335; Buis v. Cook. 
 60 Mo. 391; Vaughan v. Webster, 5 
 Harring, (Del.) 256; Jackson v. Robin- 
 son, 18 B. Mon. (Ky.) i; Wentworth 
 V. McDuffie, 48 N. H. 402; Collins v. 
 Bennett, 46 N. Y. 490; Harrington v. 
 Snyder, 3 Barb. (N. Y.) 380; Mellon v. 
 Salisbury, 13 Johns. (N. Y.) 211; Austin 
 V. Miller, 74 N. Car. 274; Mooers v. 
 Larry, 15 Gray (Mass.), 451. 
 
 It has also been held, however, that 
 one who borrows a horse without hire 
 must use extraordinary care. Hagebush 
 V. Ragland, 78 111. 40. 
 
 But where one had a horse for which 
 he had no use and offered it to another 
 to do his work in consideration of its 
 feed and keeping, this was not such a 
 "borrowing" as would make the bailee 
 liable if he could not prove extraordinary 
 care. Chamberlain v. Cobb, 32 Iowa 
 161. 
 
 One who hires a horse is bound only 
 to ordinary care in using it; and if he 
 uses such care he will not be liable if the 
 horse during such reasonable use is 
 lamed or injured. Milton v. Salisbury, 
 13 Johns. (N. Y.) 211; Harrington v. 
 Snyder, 3 Barb. (N. Y.) 381; Waldo v. 
 Beckwith, i New Mex. 97. 
 
 But if he hires the horse for a definite 
 time and uses it after this time has ex- 
 pired, he will be liable for any injury it 
 
 590 
 
ANIMALS— ANNEXED— ANNO UNCED. 
 
 or the letting them into it, which gives them the character of fix- 
 tures.^ 
 
 ANNOUNCED. — To give public notice of ; to procla: 
 clare ; to publish ; to pronounce ; to declare by judicial 
 
 lim ; to de- 
 sentence.* 
 
 may receive during such extra use; and 
 the same principle holds good if he drives 
 it beyond the distance agreed upon. 
 Stewart v. Davis, 31 Ark. 518; Fisher v. 
 Kyle, 27 Mich. 454; Ray v. Tubbs, 50 
 Vt. 688; Disbrow v. Tenbroeck, 4 E. D. 
 Smith (N. Y.), 397; Mayor of Columbus 
 TJ. Howard, 6 Ga. 213; Lucas v. Trum- 
 bull, 15 Gray (Mass.), 306. 
 
 And so must the horse be used for the 
 purpose for which it was hired and for 
 no other. Buchanan v. Smith, 10 Hun 
 (N. Y.), 474; Mayor of Columbus v. 
 Howard, 6 Ga. 218; McNeills w. Brooks, 
 1 Yerg. (Tenn.) 73; Lockwood v. Bull, 
 I Cow. (N. Y.) 322; s. c, 13 Am. Dec. 
 539; Duncan v. Railr. Co., 2 Rich. (S. 
 Car.) 613; Rotch v. Hawes, I2 Pick. 
 (Mass.) 136; s. c, 22 Am. Dec. 414. 
 
 Where one hires a horse and receives 
 special instructions from the owner about 
 its use, he must comply with the instruc- 
 tions or he will be liable for loss caused 
 by disregarding them; and this holds 
 specially good for a borrower. CuUen v. 
 Lord, 39 Iowa, 302. ' 
 
 A horse hired on a Sunday to go a 
 certain distance was driven several miles 
 beyond, causing its death. The bailor re- 
 covered its value in an action for trover 
 notwithstanding the statute prohibited 
 all secular business on Sunday. It was 
 held that such over-driving was independ- 
 ent of the contract. Frost v. Plumb, 40 
 Conn, iii; s. i,., 16 Am. Rep. 18; Wood- 
 man V. Hubbard, 25 N. H. 67; s. c. , 57 
 Am. Dec. 3:0. See Bailments; High- 
 ways. 
 
 Authorities for Animals. — Bacon's Abr. ; 
 Blacks. Com. ; No'rris' Peake on Evi- 
 dence; Cooley on Torts; Bishop Crim. 
 Law. 
 
 1. Under the Maine statute (R. S.), c. 
 108, § 2, which requires that where a spe- 
 cific demand only is submitted to arbitra- 
 tion it shall be " annexed " to the agree- 
 ment and signed by the party making it, 
 it was held that where the submission re- 
 cited the demand, it was "annexed" 
 within the terms of the statute, and that 
 as the demand submitted was specified 
 in the submission and the submission 
 was signed by the plaintiff, the demand 
 was signed. DeeringK. Saco, 68 Me. 322. 
 
 So in Massachusetts a statute requir- 
 ing a magistrate's certificate to be an- 
 nexed to a deposition (Gen. Sts. c. 131, § 
 
 26) was held to be satisfied by the magis- 
 trate's inclosing certain books referred to 
 in the deposition in an envelope or wrap- 
 per, together with the deposition, and 
 sealing them up and directing them to 
 the clerk of the court Shaw ». McGreg- 
 ory, 105 Mass. 96. 
 
 Where the affidavit to foreclose a mort- 
 gage was written on the back thereof, it 
 was "annexed " thereto within the mean- 
 ing of the law. Lilly v. Willis, 73 Ga. 
 139- 
 
 But, " the laying of a loose paper with- 
 in the folds of a writ does not make it 
 any part of the writ, nor can it be said 
 with any propriety of language to be ' an- 
 nexed ' to the writ. The removal of such 
 paper by the plaintiff would not be a mu- 
 tilation of his writ, nor render him amen- 
 able to any one." Saco v. Hopkinton, 29 
 Me. 268. 
 
 Where an agreement referred to a 
 clause in a former agreement and pro- 
 vided that it should extend to the new 
 agreement as if it had been repeated 
 therein, held, that the clause referred 
 to could not be considered as "annexed 
 to" the new agreement so as to make an 
 additional stamp necessary , on the ground 
 of the agreement with the clause contain- 
 ing more than 1080 words. Atwood v. 
 Small, 7 B. & C. 390. 
 
 Annexed to the freehold. — An expres- 
 sion used to define a fixture. "By the 
 expression ' annexed to the freehold ' is 
 meant fastened to, or connected with, it; 
 mere juxtaposition, or the laying of an 
 object, however heavy, on the freehold, 
 does not amount to annexation." Mer- 
 rill V. Judd, 14 Cal. 59. See the case of 
 Elwes V. Mawe, 3 East., 38; s. c, 2 
 Smith's Leading Cases, (8th Am. Ed.) 
 169. 
 
 2. Where the court had directed the 
 clerk to make an entry in a cause, setting 
 forth the finding of the court, and subse- 
 quently allowed the plaintiff to dismiss 
 his complaint and erased* the entry, 
 it was held error, inasmuch as the find- 
 ing of the court had been " announced," 
 and therefore the action of the court was 
 in contravention of the statute which for- 
 bids that an action shall be dismissed 
 except at any time before the finding of 
 the court is announced. (2 R. S. 1876, 
 p. 184, § 363). Walker v. Heller, 56 Ind. 
 298. 
 
 591 
 
Definition. 
 
 ANNUITY. 
 
 Hatnre.. 
 
 ANNUITY. (See, for construction of contract or will granting:: 
 Bonds; Contracts: Deeds; Devises; Legacies; Trusts; 
 Wills. For the right to interest on arrears: INTEREST. For' 
 powers and duties of executors or administrators in payment of: 
 Executors. When taxable : Taxes. As to creditors of annui- 
 tant : Attachment ; Creditor's Suit.) 
 
 1. Definition. • 
 
 2. Nature: 
 
 Distinguished from Rent-charge. 
 An Annuity is mere Personalty. 
 
 3. A Charge upon what, \ment. 
 ■ 4. Annuities granted by Will — Abate- 
 
 9- 
 10. 
 
 Validity. 
 
 Consideration — Assignment. 
 
 Payment. 
 
 Remedies. 
 
 Determination. 
 
 1. Definition. — An annuity is a yearly payment of a certain sum: 
 of money granted to another in fee, or for life, or for years, charg- 
 ing the person of the grantor only.i 
 
 An annuity is a stated sum., payable annually.* 
 An annuity is an annual duty charged upon the person of the- 
 grantor only.^ 
 
 2. Nature. — Distinguislied from a Rent-charge. — An annuity is- 
 different from a rent-charge, with which it is often confounded.- 
 An annuity is a yearly sum, or an annual duty, charged against 
 the person of the grantor only; whereas a rent-charge issues out of 
 lands, and is a charge against them in the hands of a purchaser.* 
 
 An Annuity is mere Personalty.^ — At common law an annuity 
 was considered personal property. One incident alone it had in 
 common with realty, — that if granted with words of inheritance, it 
 was an hereditament ; and if it descended to the heir, it was called, 
 personal inheritance or personal fee; but if an annuity was a 
 granted to A " for ever," it went to the personal representatives 
 of A, for there were no words of inheritance.® 
 
 1. Co. Litt. 144 b; 3 Kent Com. (13th 
 Ed.) *46o; Watson's Comp. of Equity, 
 vol. i. p. 8. 
 
 2. Adjudged Words and Phrases (Win- 
 field); Pearson v. Chase; 10 R. I. 456; 
 Bpoth V. Ammerman, 4 Bradf. (N. Y.) 
 129. 
 
 3. Horton v. Cook, 10 Watts (Pa.), 124; 
 Co. Litt. 441 b. 
 
 But when it is an interest on a mere 
 debt, such payment is not an annuity, as 
 where a bond was given for ;^20oo, ;^40 
 being the interest on the principal at £,^ 
 per cent, payable half-yearly during the 
 obligee's Ufa, the princip.al to be payable 
 within twelve months after his death, it 
 was held not to be an annuity bond, but 
 " merely a stipulation for the payment 
 of interest for the forbearance of a cer- 
 tain sum of money." Watson's Compen- 
 dium of Eq. vol. i. p. 8; Winter v. 
 Mousely, 2 Barn. & Aid. 802. 
 
 4. 2 Blackst. Com. (Sharswood) 40 ; 
 Bouvier's Law Diet., "Annuity;" Horton 
 
 V. Cook. 10 Watts (Pa.), 1275 Co. Litt. 
 144; Co. Litt. 20 a; 3 Kent. Com. *46o; 
 Wagstaff V. Lowerre, 23 Barb. (N. Y.). 
 216; Wait's Actions and Defence, 324. 
 
 ' 'A devise in the following words, ' I give 
 and bequeath to my daughter A the sum 
 of $60 as an annuity to be paid to her 
 out of the profits of my real estate an- 
 nually, creates an annuity and not a 
 rent-charge." Robinson v. Townsend, 3 
 Gill & Johns. (Md.) 413. 
 
 5. Am. Law Mag. for Oct. 1843. 
 "Personal Hereditaments;" Aubin v. 
 Daly, 4 Barn. & Aid. 59; The Law of 
 Wills (Redfield, 3d Ed.), vol. iii. p. 
 
 *l82. 
 
 6. Watson's Comp. of Eq. vol. i. p. 8; 
 Earl of S. v. Buckley, 2 Ves. Sen. 179; 
 Bouvier's Law. Diet., "Annuities;" Co. 
 Litt. 2 a. 20 a, n. 4; 3 Kent Com. *46o; 
 2 Blackst. Com. (Sharswood) 40, note 40; 
 I Wms. Exrs. 722; Taylor z/. Martindale; 
 12 Sim. 158; Parsons v. Parsons, L. R. 
 8 Eq. 260, in which the words " his heirs" 
 
 593 
 
-A. Charge upon What. 
 
 ANNUITY. 
 
 A Charge upon What, 
 
 3. A Charge upon What. — An annuity is a charge against the per- 
 sonal estate only of the grantor; but it is a charge upon the real 
 estate also, if upon construction of the instrument granting the 
 annuity it appear that such was the intention.* An annuity may 
 be charged on the land alone, in which case there will be no per- 
 sonal liability on the part of the devisee. To charge real estate 
 with the payment of annuities, the intention of the testator must 
 be declared in express terms or inferred by clear implication. 
 " Liens by implication are not favored by the law." Expressions 
 that would give rise to such an inference are, for example, " to be 
 paid out of the land devised," or to be paid by the devisee "upon 
 his coHiVing into possession of the property,' or if the devise were 
 ' after paying tlie annuity" But no particular form of words is 
 necessary to create a charge upon the realty.* 
 
 A devise of real estate, after a direction for the payment of 
 legacies, creates a charge upon the realty.' Where an annuity is 
 charged by will against several different pieces of real estate 
 devised to one person, " the right to enforce the charge against 
 any or all of the, property devised can be waived only by agree- 
 ment" of the annuitant, and deeds and mortgages to which the 
 
 in a grant of an annuity to A and his 
 'heirs were considered words of substitu- 
 tion. 
 
 Since an annuity was personalty, a wife 
 had no dower in it, nor a husband curte- 
 sey; it was not an hereditament within the 
 statute of mortmain; it could not be con- 
 veyed by way of user for want of seizin; 
 it was not entailable under the statute 
 .de donis ; an assize did not lie for it ; it 
 did not escheat; but as an hereditament 
 it was forfeited for treason, and also was 
 not assets for the payment of debts, as it 
 went to the heir and not to the executor; 
 the Statute of Frauds, so far as it related 
 to real estate, did not affect it; and the 
 Judgments and executions applicable to 
 real estate had no application to an an- 
 nuity, etc. 2 Blackst. Com. 40, n. 40; 
 Co. Litt. 2 a. n. i; Hargrave, 20 a, 32 
 a; 3 Kent Com. *46o; Bouvier's Law. 
 Diet, "Annuities;" Horton i". Cook, 10 
 Watts (Pa.). 127. 
 
 1. See Rent-charge. 
 
 2. Owens v. Claytor, 56 Md. 129. 
 The testator devised to her son J. a 
 
 portion of her interest in a certain prop- 
 erty, and her remaining interest, to her 
 son F., and in a subsequent clause gave 
 an annuity to her niece as follows: "It 
 IS likewise my will that each of my sons, 
 F. and J., shall pay to my said niece the 
 ■sum of $30 per annum in equal instal- 
 ments every two months." The court 
 held that there was no charge on the real 
 -estate, that no such intention appeared, 
 -that no expressions (quoting those in the 
 
 text above) from which such an intention 
 could be inferred were used by the testa- 
 tor, and that it was "a mere charge on 
 the devisees in respect of the land devised 
 to them, and not a charge on the land 
 itself," but their personal liability. West 
 V. Biscoe, 6 H. & J. 468; Kemp v. Mc- 
 Pherson, 7 H. & J. 320; Spence v. Rob- 
 ins, 6 G. & J. 507; Tolson v. Tolson, 10 
 G. & J. 159; Luckitt V. White, 10 G; & 
 J. 480; Snively v. Bevans, i Md. 208; 
 Greenwood v. Greenwood, 5 Md. 334; 
 Budd V. Williams, 26 Md. 265; Budd v. 
 Garrison, 45 Md, 418; Ogle v. Tayloe, 
 49 Md. 158. 
 
 But the corpus will be charged where 
 the intention so appears. Shermerhorne 
 V. Shermerhorne, 6 Johns. Ch. (N. Y.) 
 70; Baker v. Baker, 6 H. of L. 616; De- 
 graw V. Cleason, 11 Paige (N. Y.), 136; 
 Nash V. Taylor, 83 Ind. 349; Lupton v. 
 Lupton, 2 Johns. Ch. (N. Y.) 614; Ripple 
 V. Ripple, I Rawle (Pa.), 386; Davis' 
 App., 83 Pa. St. 348; Gilbert's App., 85 
 Pa. St 347; Quinby w. Frost, 61 Me. 77; 
 Heslopz/. Gatton, 71 111. 528; Lindsey v. 
 Lindsey, 45 Ind. 552. See Rent- 
 charge. 
 
 3. Nash V. Taylor, 83 Ind. 349, where 
 it was held that "where a testator directs 
 that his legacies and debts shall be first 
 paid, and then devises real estate, a 
 charge is created . " Newman v. Newman, 
 I Vern. 45; Harris v. Ingeldew, i P. 
 Wms. 91; Reynolds v. Reynolds' Exrs., 
 16 N. Y. 257; 3 Jarman on Wills (5th 
 Am. Ed.) 404. 
 
 593 
 
A Charge upon What. ANNUITY. Annuities Granted by Will. 
 
 annuitant is not a party have no effect.'^ "And where lands are 
 charged, a subsequent mortgagee or purchaser takes subject to the 
 charge. Equity will enforce such a charge upon the lands in the 
 hands of subsequent grantees.'"-* The devisee may become per- 
 sonally liable for the payment of an annuity when the condition 
 of the devise is that the devisee shall pay the annuity, and upon 
 acceptance of the devise he becomes liable.^ 
 
 An annuity may be charged on both the personal and real 
 estate of the testator,* and the personal estate is the primary fund 
 for its payment, if sufficient.' 
 
 The old rule of chancery, that when an annuity was payable out 
 of rents and profits the corpus of the estate also was liable, has 
 been modified. The intention of the testator governs in all cases ; 
 so that a direction to pay an annuity out of the rents and profits 
 charges only the rents and profits, and not the corpus of the estate, 
 unless a contrary intention appear, and can be enforced against 
 the devisees personally only so far as they have received the rents, 
 and the fee and life estates in the realty could not be sold to pro- 
 vide the annuity.* And the surplus rents and profits are not to 
 be accumulated to meet future deficiencies in the rents to pay the 
 annuity.' 
 
 4. Annuities Granted by Will. — Abatement. — An annuity may be 
 granted either by deed or by will. An annuity granted by will is 
 a legacy,* and upon a deficiency of assets, for the purpose of abate- 
 
 1. Perkins v. Emory, 55 Md. 27; Nash and profits, and the income of the per- 
 il. Taylor, 83 Ind. 349. "A release of sonal estate" to the use of her husband 
 one ciiild from the payment of the part B. for life, except to pay an annuity to 
 of the annuity chargeable on his lands" C. There was no devise or bequest over 
 does not " operate as a release of the of the remainder after the death of C. 
 charge upon the other shares." The rents and profits proved insufficient 
 
 2. " Where a will constitutes a link in to pay, the annuity. The court held that 
 the title through which a grantee or mort- only the rents and profits, as they ac- 
 gagee claims, he is bound to take notice crued from year to year, were chargeable; 
 of the provisions of the instrument." 2 that the whole question really hung upon 
 Redfield on Wills, p. 2og, sec. 7. the testator's intention. Wilson v. Hal- 
 
 3. Owens v. Claytor. 56 Md. 129. See liley, i Russ. & Mylne, 590; Small v. 
 same case, note 2, p. 593. Wing, 5 Bro. P. C. (Tomlin's Ed.) 66; 
 
 4. Smith V. Fellows, 131 Mass. 20. Heneage v. Lord Andover, 3 Young & 
 An annuity was given to a widow, "the Jervis, 360; Baker v. Baker, 6 H. of L. 
 same to be paid from the income of my 616. Each case depending on its own cir- 
 property," and the residue after payment cumstances and language. Birch v. Sher- 
 of debts and legacies to C. The court ratt, L. R. 6 Ch. App. 642(*644); Pierre- 
 held that the annuity (according to the pont v. Edwards, 25 N. Y. 128; Dickin 
 testator's intention) was charged against v. Edwards, 4~ Hare, 273; Nudd v. Pow- 
 the whole estate. ers, 136 Mass. 273. 
 
 5. Degraw z;. Cleason, ,11 Paige (N.Y.), 7. Pierce's Est., 56 Wis. 560. Where 
 136. Where an annuity charged on the A directed an annuity to be paid 
 real and personal estate of the testator "from the proceeds" of a farm "each 
 washeldpayableoutof the personal estate and every year," the court held that the 
 if sufficient; if not, the land was to be surplus proceeds should not be accumu- 
 sold. Nash v. Taylor, 83 Ind. 347. lated to meet future deficiencies in the 
 
 6. Delaney v. Van Aulen, 84 N. Y. 16. rents, to pay the annuity, as the intent 
 K. by will gave all the residue of her to do so did not appear. 
 
 estate in trust, " to receive the rents and 8. Heatherington v. Lewenberg, 61 
 profits of the real estate, to invest the Miss. 372; Hill on Trustees, *362; Stokes 
 jjersonal estate, and to apply the rents v. Heron, 12 CI. & F. 161; Hedges v. 
 
 694 
 
Annuities Granted by Will, 
 
 ANNUITY. 
 
 Appoitionment. 
 
 ment, is classed with general legacies, except where there is a val- 
 uable consideration for the annuity, and where the intention of the 
 testator is clear and conclusive that it shall not abate. An annuity 
 given to a widow in lieu of dower, accepted by her as such, does 
 not abate on a deficiency of assets.^ 
 
 Annuities given by will, although payable out of the personal 
 estate or out of the general funds of the testator, are generally 
 construed and governed by principles which are applicable to a 
 devise of real estate.* 
 
 6. Apportionment. — The rule of common law was that annuities 
 were not apportionable.' Exceptions were made in several 
 cases, where the annuity was given for the maintenance of a 
 wife living separate from her husband ; * for the support of mi- 
 
 Harper, 3 DeG. & J. 131; PotKr v. Ba- 
 ker, 2 Eng. L. & Eq. 92; Bent v. Culler, 
 L. R. 6 Ch. App. 2^; Watson v. Hayes, 
 5 Ney & Cr. 125, 133; Fox v. Fox, L. R. 
 19 Eq. Cas.,286; Hellman v. Hellman, 4 
 Rawle (Pa.), 440; Birdsall v. Hewlett, i 
 Paige (N. Y.), 32; 2 Jarman on Wills, 
 (5th Am. Ed.)*834; Lodgers. Hatfield, 
 71 N. Y. 92, 99; Fuller V. Winthrop, 3 
 Allen, 51; Veazey v. Whilehorse, 10 N. 
 H. 409; Perry on Trusts, § 566; Stanley 
 V. Colt, 5 Wall, ng; Wright v. Wilkins, 
 2 B. & S. 232; Kirk v. Kirk, L. R. 21 Ch. 
 Div. 437; Bugber v. Sargent, 23 Maine, 
 269; Sands v. Champlin, i Story, 376; 
 Perry on Trusts, §§ I2i, 568; Fosdick 
 V. Fosdick, 6 Allen (Mass.), 43. 
 
 1. Heath v. Dindy, i Russ. Ch. Cas. 
 543; Burridge v. Bradley, i P. Wms. 127; 
 Blower v. Morret, 2 Ves. Sen. 420; Dav- 
 enhill v. Fletcher, Ambler, 244; App. of 
 Univelrsity of Pa., 97 Pa. St. 187. 
 
 In Pennsylvania it was held that an 
 annuity to a widow did not abate, because 
 by statute a bequest to a wife was in lieu 
 of dower, unless otherwise expressed, the 
 widow being thus a purchaser and not a 
 volunteer. Reed v. Reed, 9 Watts (Pa.), 
 263. 
 
 2. Bradhurst v. Bradhurst, i Paige (N. 
 Y.), 331, where the rules applicable to a 
 devise of real estate were applied in order 
 to prevent a testator's attempt to render 
 personal property inalienable for a longer 
 period than the law against perpetuities 
 would allow real estate to be inalienable. 
 
 3. The Law of Wills (Redfield), 3d 
 Ed., vol. iii. p. 185, n. 17 ; Wiggins v. 
 Sweet, 6 Mete. 194; Phelps v. Culver, 6 
 Vt. 430 : Story's Eq. Juris. (13th Ed.) 
 488; Watson's Comp. of Eq. 21 ; Hay 
 V. Palmer, 2 P. W. 501; Ex parte ?>vay\!a, 
 I Sw. 349. 
 
 So that if the annuitant died before the 
 fixed day of payment, "his representa- 
 tive is not entitled to a proportionate 
 
 part of the annuity for the time which has 
 elapsed since the last day of payment." 
 In re Lackawanna Iron & Coal Co., 37 
 N. J. Eq. 126; Ex parte Smyth, i Swanst. 
 349 n. ; Price v. Williams, Cro. Eliz. 380; 
 Reg. V. Treas. Comm'rs, 16 Q. B. 357; 
 Leathey v. French, 8 Irish Ch. 401 ; Aus- 
 man v. Montgomery, 8 W. C. C. P. 364; 
 Thacker's Trusts, 28 L. T. (N. S.) 56; 
 Franks v. Noble, 12 Ves. 484; Tracy v. 
 Strong, 2 Conn. ^59; Heizer v. Heizer, 
 71 Ind. 526; Manning v. Randolph, I 
 South, 144; Irving v. Rankine, 13 Hun 
 (N. Y.), 147; Stewart v. Swain, 13 Phila. 
 (Pa.) 185. 
 
 If the annuitant lives until morning 
 of the day whereon the annuity is paya- 
 ble, his representatives are entitled there- 
 to, although not demanded by him. In 
 ;v Lackawanna Iron & Coal Co., 37 N.J. 
 Eq. 125, ed. note ; Paton v. Sheppard, 10 
 186; Robinson v. Robinson, 2 Irish Sim. 
 C. L. 370. 
 
 4. Story Eq. Juris. (13th Ed.) 489, n. 
 I ; Howell v. Hanforth, 2 W. Bl. 1016; 
 Sweigert v. Frey, 8 S. & R. (Pa.) 299; 
 Fisher v. Fisher, 5 Pa. L. J. Rep. 178; 
 Watson's Comp. of Eq. 21. 
 
 A and wife conveyed a farm to B in 
 consideration of B agreeing to pay an 
 annuity of $250 (secured by B's bond and 
 mortgage on the premises) on the 1st of 
 April, for his life, and if A's wife survived 
 him, to pay her an annuity of $200 for 
 life. She survived A, and died Sept. 19, 
 l88i. The court held that her annuity, 
 given evidently for her support, was ap- 
 portionable. In re Lackawanna Iron & 
 Coal Co., 37 N. J. Eq. 126. 
 
 A agreed (by bond), in consideration of 
 B quitclaiming to him all her right to the 
 estate of her late husband, " to pay to her 
 annually on the ist of May, during her 
 natural life, $185." Her administrator 
 claimed an apportionment of the annuity 
 up to the time of her death, but the court 
 
 595 
 
Apportionment. 
 
 ANNUITY. 
 
 Validity. 
 
 nors.* An annuity in lieu of dower is apportionable.* 
 
 6. Validity. (See Consideration.) — An lannuity granted to 
 one on consideration of not marrying, or during widowhood, has 
 not always been declared invalid ; but courts of equity have been 
 indulgent, and have sought by subtle distinctions to evade en- 
 forcing the condition. Distinctions have been drawn between con- 
 ditions and limitations, conditions precedent and conditions sub- 
 sequent, and between those cases in which there was a gift over 
 and those in which there was not. A condition subsequent, when 
 there is no gift over, is generally held to be void ; but if there is a 
 bequest over, the condition is valid.* 
 
 When words of limitation are used the annuity has been held 
 to cease upon marriage, but the distinction between words of lim- 
 itation and words of condition is very narrow.* 
 
 A devise of real estate in trust for the payment of annuities is 
 valid so long as it does not render it inalienable for a longer 
 period than the law allows.*' 
 
 7. Consideration, — Assignment. (See Validity.) — An annuity 
 may be purchased like other property, and inequality of price will 
 
 held it did not come within the exception ; 
 that this transaction was a disposal of 
 her estate in dower, in consideration of 
 an annuity. Tracy u. Strong, 2 Conn. 
 659. 
 
 Nor is the annuity apportionable if the 
 wife is living with her husband, for then 
 it is not for maintenance. In re Lacka- 
 ■wanna Iron & Coal Co., 37 N. J. Eq. lib, 
 •ed. note; Story Eq. Juris. (13th Ed.) 489, 
 n. I ; Anderson v. Dwyer, i Sch. & Lef. 
 301. 
 
 1. In re Lackawanna Iron & Coal 
 Co., 37 N.J. Eq. 126; Hay v. Palmer. 2 
 P. Wms. 501 ; Dexter v. Phillips, 121 
 Mass. 180; Weston v. Weston, 125 Mass. 
 268; Ellerbe v. Ellerbe, Spears Ch. 329. 
 
 2. Blight V. Blight, 51 Pa. St. 420. In 
 lieu and satisfaction of dower, a testa- 
 tor bequeathed to his wife an annuity to 
 be paid quarterly. The widow died in the 
 midst of a quarter, and it was held that 
 the annuity was apportionable up to the 
 time of her death, for an annuity in lieu of 
 dower lasts as long as dower would, the 
 exceptions being in favor of dower and 
 maintenance. See also Hill on Trus- 
 tees, 385; Gheen v. Osborne, 17 S. & R. 
 (Pa.) 171. 
 
 8. Crawford v. Thompson, 91 Ind. 266. 
 A gave his wife his residuary person- 
 alty on condition that she pay B an an- 
 nuity for life on condition that B should 
 not marry. Held, " that when a subse- 
 quent condition is annexed to a gift of 
 personalty, if general, it is void; if par- 
 tial and reasonable, and there is a gift 
 over, it is operative, and upo^ its breach 
 
 the interest of the first donee ceases and 
 the gift over takes effect; but if there is 
 no gift over, then the condition is said to 
 be in terrorem only, and Is inoperative." 
 In Indiana, by statute, "a devise or be- 
 quest, with a condition in restraint of mar- 
 riage shall stand, but the condition shall 
 be void." 2 R. S. 1852 (p. 308, g 2567, 
 R. S. 1881). In the above case the con- 
 dition was heldvoid, as an absolute re- 
 straint upon marriage. 
 
 As to conditions subsequent, see 
 Cook's Est., 3 Phila. (Pa.) 60, in which it 
 was also decided that it is not sufficient 
 that there is a devise of the residue, into 
 which the legacy would fall upon mar- 
 riage, but the particular legacy must be 
 given over. Parsons v. Winslow, 6 Mass. 
 169; Story's Eq. Juris. (13th Ed.) 288; 
 Knight z). Camerow, 14 Ves. 388; Clarke 
 V. Parker, I9 Ves. 13; Reynish v. Mar- 
 tin, 3 Atk. 330; Mcllvane v. Gethen, 3 
 Wh. (Pa.) 575. 
 
 4. Hotz's Est., 2 Wright (Pa.), 422, in 
 which it was held that if proper words of 
 limitation were used, the annuity ceased 
 upon marriage, the words being, " if she 
 shall be living and the wife or widow of 
 my son, for her sole and separate use, all 
 during the time she shall continue the 
 wife or widow of my son." No estate is 
 given to her for life, only during widow- 
 hood, so there is no condition subsequent, 
 no estate is defeated, and It is not a con- 
 dition in terrorem. See Cornell v. Lov- 
 ett's Exr., 11 Casey (Pa), 100. 
 
 5. Mason u. Mason, 2 Sandf. (N. Y.) 
 Ch. 432. 
 
 596 
 
Validity. 
 
 ANNUITY. 
 
 Payment. 
 
 not of itself make the contract usurious.* All annuities founded 
 on valid consideration are binding.* But if there is no considera- 
 tion save natural love and affection, and for the payment of which 
 the testator was under no legal obligation, then there can be no 
 charge upon his estate, and it makes no difference that he paid it 
 during his lifetime, or that it, was paid -through an agent by his 
 written order; no obligation legal or equitable was created.^ 
 
 An annuity may be reached by a creditors' bill, and the annui- 
 tant forced to assign for their benefit.* But an annuity given for 
 a charitable object cannot be assigned away from the purpose for 
 which it was granted.^ 
 
 8. Payment. — The general rule as to payment of annuities is that 
 they are payable at the end of the first year after the testator's 
 death, unless there is some stipulation to the contrary.* 
 
 1. Lloyd V. Scott, 4 Pet. (U. S.) 205. 
 
 The inadequacy of price must not be so 
 great as to amount to evidence of fraud. 
 Vol. 104, Law. Lib. p. 345; Lloyd v. 
 Scott, 4 Pet. (U. S.) 205, in which there 
 was a grant (in consideration of $5000) of 
 a certain annuity issuing out of certain 
 realty; further it was covenanted that at 
 any time after live years the j^sooo might be 
 paid back, and the rent or annuity extin- 
 guished. The court decided the contract 
 usurious ; that although "an annuity 
 may be purchased like a tract of land or 
 other property, the inadequacy of price in 
 itself will not make a contract usurious 
 without other circumstances. But the 
 purchase of an annuity to cover an usu- 
 rious transaction will be unavailing and 
 cannot be enforced." 
 
 2. A granted to B an annuity issuing 
 out of a bond and mortgage. C under- 
 took to pay the arrearages of the annuity 
 in consideration that B should not sue 
 the personal representatives of B. Held, 
 that ' ' 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 promissor." Horton v. Cook, 10 
 Watts (Pa.), 124. 
 
 " Money lent and paid at different 
 times for the education and advancement 
 of the defendant is held good considera- 
 tion for the grant of an annuity; and a 
 covenant by a husband to secure to his 
 wife an annuity during her life in case she 
 should survive him is a suflScient consid- 
 eration for a grant of an annuity from 
 her father.'' Wait's Actions and De- 
 fences, "Annuity;" Keif v. Ambrose, 7 
 Term R. 551; Ex parte Draycott, 2 Glyn 
 &J. 283. 
 
 3. Kearney v. Kearney, 17 N. J. Eq. 
 59- 
 
 Nor are " past seduction and cohabita- 
 tion a good consideration." Wait's Ac- 
 tions and Defences, "Annuity;" Beau- 
 mont V. Reeve, 8 Q. B. 483; s. c, 15 L. 
 J. (Q. B.) 141; lojur. 284. 
 
 4. Degraw v. Cleason, 11 Paige (N.Y.), 
 136. Held, that an annuitant may sell his 
 interest, and that the creditors are en- 
 titled to have an assignment of it. 
 
 5. A by will gave his farm to B on 
 condition that he pay an annuity of $50 
 to the M. E. Church for the support of 
 preaching. Held, that the object of the 
 testator must be carried out; that the 
 church could not assign the annuity; that 
 it was intended for preaching in the 
 church, and that the court would appoint 
 trustees to carry out the intent, if the 
 church did not. Merritt v. Buchanan, 
 77 Me. 253. 
 
 6. Hall V. Hall, 2 McCord (S. Car.), 
 Ch. 281. The testator directed an annu- 
 ity to be paid to his wife " annually or 
 in any way she might wish." The clian- 
 celior decreed it to be paid quarterly in 
 advance, "thus adhering to the general 
 principle," and yet allowing the wife to 
 have it more frequently. 
 
 Waring v. Purcell, i Hill (S. Car.) Ch. 
 193. The testator gave to A $500 annu- 
 ally to be paid out of the income of the 
 estate on the first of March during her 
 life. The testator died in September. 
 Held, that as "he died in September and 
 the whole annuity would not be due until 
 September of the following year, but it 
 was to be paid on March first of every 
 year, it accorded best with the inten- 
 tion that she should be paid on the 
 first day' of March next after his death a. 
 proportion of the annuity equal to the 
 time that had run after his death." 
 M'Lenore u. Blocker, i Harp. (S. Car.) 
 Ch. 272. 
 
 I C. of L.— 39 
 
 597 
 
Remedies. 
 
 ANNUITY— ANNUL. 
 
 Determination. 
 
 9. Bemedies. — In former times the remedy for non-payment of 
 an annuity was by means of the original writ of annuity, but it is 
 long since obsolete. Now the action of debt is used, or covenant 
 (if there is a covenant for payment in the deed); or a bill in equity 
 may be brought ; and the decree of the court ought to cover not 
 only the arrears of the annuity already fallen due, but also liberty 
 ought to be reserved to apply to the court to extend its decree to 
 cover all annuities afterwards falling due.'^ 
 
 10. Determination. (See Validity.) — If an annuity is for life, it 
 ceases upon the death of the annuitant. The duration of ah an- 
 nuity given by will depends upon the construction given to 'the 
 intention of the testator. Or it may determine thirough the limi- 
 tations of the deed or will granting the annuity (see VALIDITY as 
 to conditions and limitations). Or the annuitant may forfeit the 
 grant through a breach of condition.'-* 
 
 ANNUL. — To make null and void ; to abrogate or abolish ; to 
 cause a forfeiture.* 
 
 An annuity differs from, interest or in- 
 come. Nothing is due on an annuity be- 
 fore the day of payment; if the annuitant 
 die, there is no apportionment, \ it in- 
 come or interest accrues from day to day. 
 Cray v. Cray, 3 Barb. (N. Y.) Ch. 76; 
 Eyre v. Gelding, 5 Binney (Pa.), 472. 
 
 In an annuity the first payment is after 
 one year from the testator's death; in the 
 case of income, two years. The Law of 
 Wills (Redfield), 3d Ed. vol. 3, p. 185. 
 In Griswold v. Griswold, 4 Bi;adf. (N. Y.) 
 216, the testator directed his executor to 
 pay his wife a certain sum, during life, 
 in equal quarterly payments, on the first 
 Mondays of January, April, July, and 
 October, such payments to commence 
 immediately after his death. He died on 
 August 4th. Held, that, " in the ab- 
 sence of any specific direction, the first 
 payment would be at the end of a, year, 
 and according to the intention of the 
 testator no payment was to be made on 
 any day except those named, that they 
 were required to be equal," and this ex- 
 cludes apportionment of the first instal- 
 ment, and on the first Monday of Octo- 
 ber a full quarter is due. 
 
 1. Marshall v. Thompson, 2 Munf. 
 (Va.) 1811; Townshend v. Duncan, 2 
 Bland (Md.), 45; 3 Kent. Com. (13th Ed.) 
 *46o ; Wood v. Wood, 3 Wend. (N. Y.) 
 454; Webb V. Jiggs, 4 Maule & Selwin, 
 
 113- 
 
 2. Dixon V. Manning, i Demarest (N. 
 Y.), 581; Cox's Est., 15 Phila. (Pa.) 537, 
 and Hewson's App. 102 Pa. St. 55, where 
 A by will directed B to take charge of his 
 children, B "to receive annually" from 
 
 his estate, ' ' for her services, " $500. The 
 court held that "as the care of the chil- 
 dren ceased upon their attaining majori- 
 ty," the annuity ceased also, from a con- 
 struction of the whole will, 
 
 Blackmer v. Blackmer, 5 Vt. 355. 
 Suit was brought oh a bond of $1000 
 conditioned for the payment of $100 an- 
 nually, during the life of A. The first ten 
 payments were punctually made, and 
 then the payments were refused. The 
 court held that "the ten payments of 
 $100 each, indorsed as they fell due from 
 year to year, and amounting in the whole 
 to the penalty of the bond was" not "a 
 bar to any suit for after-payment falling 
 due in the lifetime of the grantee." 
 
 3. Where an act authorizing the sale of 
 the St. Louis tommon gave a power to 
 " annul" a sale of a lot in said Common, 
 the power was substantially pursued by -a 
 resolution by the proper authority declar- 
 ing the lot "forfeited" to the city of St. 
 Louis. ' ' Annul " is not a technical word. 
 The annulling of a lease is nothing more 
 in effect than causing a forfeiture of it. 
 Woodson V. Skinner, 22 Mo. 13, 24. 
 
 In English law, to annul a judicial pro- 
 ceeding is to deprive it of its operation 
 either retrospectively or only as to future 
 transactions. Thus, annulling an adjudi- 
 cation in bankruptcy puts an end to the 
 proceedings without invalidating any acts 
 previously done by the trustee or the 
 court, and makes the property of the 
 bankrupt revert to him unless the court 
 otherwise orders. Bankruptcy Act 1869, 
 § 81. See Rapalge & Lawrence's Law 
 Diet., sub voce. 
 
 598 
 
Constractions. 
 
 ANO THER—ANS WER. 
 
 Definition, 
 
 ANSWER. 
 
 1. Discovery. 
 
 2. Discovery, How Compelled. 
 
 3. Pro Confesso. 
 
 4. Interrogatories. 
 
 5. Documents. 
 
 6. Scandal and Impertinence. 
 
 7. Exception for Insufficient 
 
 Discovery. 
 
 8. Verification of Answer. 
 
 9. Defences. 
 10. Answer not Demurrable. 
 
 The answer is the pleading regularly 
 fendant in an equitable suit or proceedin 
 of. the party plaintiff.^ 
 
 T-9- 
 
 Answer in Support of Pleas. 
 
 ^Plea Overruled by Answer. 
 
 Form of Answer. 
 
 Oath. 
 
 Signature. 
 
 Parties. 
 
 Answer by Infant, Married 
 
 Woman, etc. 
 Sworn Answer as Evidence 
 
 for Defendant. 
 Amendment. 
 
 filed by the party de- 
 g, to the bill or petition 
 
 Where a bond was given stipulating 
 for the good conduct of an officer holding 
 office for a fixed term and until "an- 
 other" officer be appointed, on the reap- 
 pointment of the same officer the bond 
 was held not in force beyond the fixed 
 term. For said the court : " Since if 
 there be a re-election, it is in fact to an- 
 other and not the same office. See Am- 
 herst Bank v. Root, 2 Mete. (Mass.) 522, 
 536. It does not seem a strained or far- 
 fetched exposition to deduce from the 
 facts of the present case that ' another 
 treasurer' was chosen at each successive 
 annual election, whether the old incum- 
 bent vvas re-chosen or ' another person 
 was put in his place." Citizens' Loan 
 Assoc. V. Nugent, 40 N.J. Law, 215; s. c, 
 29 Am. Rep. 230 
 
 By "the money , or property of an- 
 other," the embezzlement of which by 
 any agent, clerk, or servant, without the 
 consent of his employer, is made larceny 
 by the Rev. Sts. c. 126, § 29 (Mass.), is 
 meant the money or property of any one 
 else than such agent, clerk, or servant 
 who embezzles it. Commonwealth v. 
 Stearns, 2 Mete. (Mass.) 343. 
 
 The constitution of New Hampshire 
 provides that " no'person of any particu- 
 lar religious sect or denomination shall 
 ever be compelled to pay towards the 
 support of the teacher or teachers of an- 
 other persuasion, sect, or denomination;" 
 and where a tax had been assessed on a 
 Presbyterian for the salary of a Congre- 
 gational minister, elected by the First 
 Parish of Amherst as a public teacher of 
 piety, religion, and morality therein, un- 
 der the constitution and laws of New 
 Hampshire, it was held that Presbyte- 
 rians and Congregationalists are differ- 
 ent sects in religion within the meaning 
 of the constitution. Hence a Presbyte- 
 rian cannot be taxed for the support of a 
 Congregational minister. Muzzy v. Wil- 
 kins. Smith's Dec. (N. H.) i. 
 
 Under the 32 and 33 Vict. c. 112, whicli 
 by § 2 defines the term " to dye seeds " as 
 giving to seeds, by any process of color- 
 ing, dyeing, sulphur-smoking, or other 
 artificial means, the appearance of seeds 
 of " another" kind, and by § 3 imposes a- 
 penalty upon any person who, with in- 
 tent to defraud, "dyes any seeds or sells; 
 any dyed seeds," no offence is com- 
 mitted by subjecting seeds to a prbcess- 
 by sulphur-smoking so as to improve- 
 tliem in appearance, and to make old and/ 
 inferior seed appear to be new seed, so 
 long as such seed is not made to appear 
 of a different species or description from 
 that to which it actually belongs. Francis. 
 V. Maas, L. R. 3 Q. B. DIv. 341. 
 
 The phrase "personal goods of an- 
 other, "in sec. 16 of the act of April 30, 1790 
 (i U. S. Stat, at Large, 116), embraces 
 the personal goods of the United States. 
 U. S. V. Maxon, 5 Blatch. (U. S. 360). 
 
 So where a Missouri statute on the 
 consolidation of railroads authorized "a. 
 corporation of this State to lease its road; 
 to a Corporation of another State," it 
 was held that a corporation chartered by 
 Congress was a corporation of "another 
 State " within the meaning of the act;: 
 the act being designed to embrace any 
 corporation outside of Missouri, whether 
 chartered by Congress or another States 
 Smith V. Pacific R. Co., 61 Mo. 17. 
 
 1, The answer is the regular mode of 
 replying to a bill or petition setting up- 
 an equitable cause of action. The plea- 
 and demurrer were originally unknown 
 in equity pleading, and did not come into- 
 general use until comparatively recent^ 
 times. They were borrowed from th& 
 common law. Langdell Eq. PI. § 92. 
 
 The answer need not be more specific 
 than the charge. Buerk v. Imhaeuser, 
 20 Blatch. (U. S. C. Ct.) 274. , 
 
 The word "answer" is frequently used 
 in a general sense, so as to signify any 
 pleading by which an issue, whether o£ 
 
 599 
 
Discovery. 
 
 ANSWER. 
 
 Discovery, 
 
 It ordinarily subserves two entirely distinct purposes : first, to 
 give discovery as to the charges and allegations of the bill ; sec- 
 ond, to set forth the defences to the bill.^ 
 
 1. Discovery. — The answer must always give the plaintiff all 
 the discovery to which he is entitled.' It must answer specifically 
 each and every material allegation of the bill, and all interroga- 
 tories founded upon such allegations.'-* 
 
 2. I Pom. Eq. Jur. § 204; Saunders v. 
 Jones, L. R. 7 Ch. D. 435, 443; Reade z/. 
 Woodruffe, 24 Beav. 421; Methodist 
 Episc. Church v. Jaques, I Johns. (N. Y.) 
 Ch. 65; Phillips V. Prevost, 4 Johns (N. 
 Y.) Ch. 205; Cuyler v. Bogert, 3 Paige 
 (N. Y.), 186; Bank of Utica v. Messereau, 
 7 Paige (N. Y.), 517; Champlin v. Cham- 
 plin, 2 Edw. (N. Y.) Ch. 362; Waring v. 
 Suydam, 4 Edw. (N. Y.) Ch. 420; Brobks 
 V. Byam, i Story (U. S. C. Ct.), 296; 
 Langdon v. Goddard, 3 Story (U. S. C. 
 Ct.), 13; Wooten v. Burch, 2 Md. Ch. 190; 
 Hagthorp v. Hook, i Gill& J. (Md.) 270; 
 Salmon v. Clagett, 3 Bl. (Md.) Ch. 125; 
 Shotvvell V. Struble, 21 N. J. Eq. 31 ; Park- 
 inson V. Trousdale, 3 Scam. (lU.) 367. 
 
 If the defendant wishes to avoid giving 
 discovery, he must either plead or de- 
 mur to the bill. In which case the aver- 
 ments of the bill not traversed are cons- 
 tructively admitted, on the theory of 
 common-law pleading. But as the com- 
 mon-law theory of constructive admis- 
 sions has no part in equity pleading ex- 
 cept as thus adopted in the case of pleas 
 and demurrers, if the defendant elect to 
 answer he must give full discovery. 
 Langdell Eq. PI. § 93; Story Eq. PI. § 846; 
 Hill V. .Cravy, 7 Ark. 536; Salmon v. 
 Clagett, 3 Bland (Md,), 125. For the 
 plaintiff must prove all allegations of the 
 t]ill not admitted by the answer. DeWolf 
 V. Long. 2 Gilm. (111.) 679. 
 
 Defendant must give the discovery 
 sought by the bill, although it is not neces- 
 sary to enable plaintiff to prove his case. 
 Davis V. Mapes, 2 Paige (N. Y.). 105. 
 
 The defendant must answer the charges 
 and interrogatories in the bill particularly 
 and precisely; a general denial of the 
 averinents of the bill is insufficient. 
 Walker v. Walker, 3 Ga. 302; Jones tj. 
 Wing, Harr. Ch. (Mich.) 301. 
 
 The answer should avoid a negative 
 pregnant, that is, it should deny each part 
 of a collective statement. Davis v. 
 Mapes, 2 Paige (N. Y.), 105; King v. 
 Ray, II Paige (N. Y.), 235. 
 
 The defendant need not answer all the 
 allegations of the bill, but only such as 
 are relevant to the plamtiff's case as made 
 out by the bill. He need not answer im- 
 pertinent or irrevelant or scandalous al- 
 
 law or of fact, is made or tendered on the 
 part of the defendant. Howell v. Howell, 
 15 Wis. 55, 59. 
 
 A demurrer is not an answer. Kelly 
 v. Downing, 42 N. Y. 71. 
 
 And therefore where an attorney, ap- 
 pointed ad litem to defend for a defend- 
 .ant constructively summoned, filed a de- 
 murrer to the complaint, the demurrer 
 was properly sustained, as it was not an 
 answer, and would not be an appearance 
 for the absent defendant. Henry v. 
 Blackburn, 32 Ark. 445. But see, where 
 context clearly shows that answer in- 
 cludes demurrer, Lyman v. Bechtel, 55 
 Iowa, 437; Howell v. Howell, 15 Wis. 
 55; Broadhead v. Broadhead, 4 How. 
 (N. Y.) 308. ^ 
 
 Frivolous or Sham Answer. — The word 
 "answer," as used in section 247 of the 
 New York Code, means an entire answer 
 as a distinct pleading, and not one or 
 more of several defences constituting it, 
 and the remedy given by said section for 
 a frivolous pleading is only available 
 when the pleading as a whole is frivolous. 
 Strong V. Sproul, 53 N. Y. 497. See The 
 People V. McCumber, 18 N. Y. 315; 
 Keeter v. Thomas, 6 Abb. Pr. N. S. 
 (N. Y.) 42; Cottrill V. Cramer, 40 Wis. 
 
 555- 
 
 The name of an attorney placed for 
 special purpose under the name of a re- 
 spondent in a docket entry of a petition 
 for a partition of land does not consti- 
 tute either an answer or an appearance. 
 Larrabee v. Larrabee, 33 Me. 100. 
 
 1. Much confusion has arisen from a 
 failure to recognize this twofold nature 
 of the answer. It seems to have been 
 first pointed out by Wigram (Discovery, 
 2d Ed. §§ 17, 18) and by Hare (Dis- 
 covery, 223). See Langdell Eq. PI. § 
 68, n. 2. It is now generally recognized. 
 Story Eq. PI. §850: I Dan. Ch. PI. & 
 Pr. (5th Am. Ed.)*7ii. Stone w. Moore, 
 26 111. 165. 
 
 In the pleading in the ecclesiastical 
 courts, from which equity pleading is de- 
 rived, discovery and the statement of 
 defence were made in distinct instru- 
 ments. Story Eq. PI. § 850; Dan. Ch. 
 Pl. & Pr. (5th Ann. Ed.)*7ii; Langdell 
 Eq. PI. § 68. 
 
 600 
 
Biscovery — How Compelled. 
 
 ANSWER. 
 
 Discovery — How Compelled. 
 
 The defendant may, however, refuse to give discovery in cases 
 where he can claim privilege as a witness as to the discovery 
 sought. 1 
 
 Thus he may refuse to answer any allegations, the answering 
 of which would tend to criminate him or subject him to a pen- 
 alty.2 
 
 So an attorney need not answer where to do so would involve 
 a disclosure of confidential communications.^ 
 
 Admissions in the answer are conclusive upon the defendant.* 
 
 2. Discovery — How Compelled. — The regular means of compelling" 
 discovery is by process of contempt, issued against the defendant 
 in case of his failure fully to answer all material allegations of the 
 bill within the time required.** 
 
 legations. Story Eq. PI. §846; Wigram 
 Discov. (zd Ed.) pp. igo-igg; Langdell 
 Eq. PI. §6g; Agar v. Regent's Canal 
 Co., Cooper, 212; Davis v. Collier, 13 
 Ga. 485; Batterson v. Ferguson, i Barb. 
 (N. Y.)4go; Hardeman v. Harris, 7 How. 
 726; West V. Williams, i Md. Ch. 358. 
 Nor need he answer allegations of the 
 bill which are relevant to a defence to 
 the plaintiff's case, but not to the case it- 
 self. I Dan Ch. PI. & Pr. (5th Am. Ed.); 
 pp. *57g, *58o; Story Eq. PI. § 572 et seq.; 
 Bolton V. Corporation of Liverpool, i 
 M. & K. 88, gi; Attorney-General v. 
 Corporation of London, 2 M'N. & G. 
 247, 256; Stainton v. Chadwick, 3 M;N. 
 & G. 575; Bellvvood v. Wetherell, i Y. & 
 C. Ex. 211, Z15. 
 
 This principle, which is generally rec- 
 ognized, is often somewhat difScult of 
 application. It must be borne in mind 
 that the plaintiff is entitled to discovery 
 to aid him in breaking down the case of 
 his adversary as well as to aid him in 
 supporting his own. Bray Discov. 458, 
 459; Atty. -General v. Corporation of 
 London, 2 M. & G. 247; Glascott v. Cop- 
 per Miner's Co., 11 Sim. 305, 312. 
 Such discovery is not for the purpose 
 of prying into the defendant's case, but 
 for the purpose of establishing an attack 
 upon that case. Bray Discov. 459; 
 Wigram PI. 343; Gumprecht v. Parry, 
 32 W. R. 558; Goodman v. Holroyd, 15 
 C. B., n. s. at 844. This distinction, 
 though real, is often difficult to make. 
 Bray Disc. 458. See Storey v. Lennox, 
 I My. & Cr. 525. 
 
 1. Langdell Eq. PI. § 6g; Agar v. 
 Regent's Canal Co., Cooper, 212. 215. 
 
 Where grounds of privilege appear on 
 the face of the bill, defendant may protect 
 himself from discovery by demurrer. I 
 Dan. Ch. PI. & Pr.'549; Hare Disc. 
 149. 
 
 Where the bill itself does not disclose 
 
 grounds of privilege, privilege must be 
 claimed by the answer or by plea. Lang- 
 dell Eq. PI. § g7. 
 
 Defences to discovery may be taken by 
 answer. Hunt v. Gookin, 6 Vt. 462. 
 
 Even where the bill discloses grounds 
 on which a claim of privilege may be 
 based, the defendant may protect him- 
 self from discovery by submission in his 
 answer, i Dan. Ch. PI. & Pr. (5th Am. 
 Ed.) 717; Hare Disc. 149. 
 
 2. I Dan. Ch. PI. &Pr., pp. *562. *567; 
 I Pom. Eq. Jur. §202; Gadsden v. 
 Woodward, 8 N. E. R. 653 (N. Y., under 
 Code); Wolf v. Wolf, 2 Bar. & G. (Md.) 
 382; United States z/. Twenty-eight Pack- 
 ages, Gilp. (U. S. C. Ct.) 306; Butler v. 
 Catling, I Root (Conn.), 310; Leigh v. 
 Everheart, 4 T. B. Mon. (Ky.) 379; 
 Dwinal v. Smith, 25 Me. 379; Livings- 
 ton V. Tompkins, 4 Johns. (N. Y.) Ch. 
 415; Northwestern Bank v. Nelson, i 
 Graft. (Va.) 108. 
 
 The defendant must state upon oath 
 his belief that the discovery sought, if 
 given, would tend to expose him to pen- 
 alties, or to a criminal prosecution; a 
 submission of the question to the court 
 is insufficient. Scott v. Miller (No. 2), 
 Johns. 328. 
 
 Where a statute provides that the de- 
 fendant's answer shall not be admissible 
 against him in a criminal prosecution he 
 may be compelled to answer. Philadel- 
 phia V. Keyser, 10 Phila. (Pa.) 50. 
 
 3. I Dan. Ch. PI. & Pr. pp. 573, 574;^ 
 Story Eq. PI. § 846: Wigram Discov. 
 (2d Ed.) igs: i Pom. Eq. Jur. § 203. 
 
 4. Home Ins. Co. v. Myer, g3 111. 271; 
 Miller v. Payne, 4 Bradw. (111.) 112. 
 
 5. Dan. Ch. PI. & Pr. *p. 488 ; Lang- 
 dell Eq. PI. § 84; McKim v. Odom, 3. 
 Bland. (Md.) 407. 
 
 A distringas will issue to compel a 
 corporation to answer. McKim », 
 Odom, 3 Bland (Md.), 407. 
 
 601 
 
Tro ConfesBO, 
 
 ANSWER. 
 
 Docnments, 
 
 3. Pro Oonfesso. — Where the process of contempt fails to compel 
 an answer, the practice (generally regulated by statute) is to order 
 the bill to be taken /r^ confesso.^ 
 
 Taking a bill pro confesso admits the truth of facts constituting 
 the equity of complainant's bill,'-* but not statements as to amounts 
 of money due upon an accounting.^ 
 
 4. Interrogatories. — It is usual to append to the bill interrogatories 
 in support of its principal allegations. Unless such interrogatories 
 are based on averments of the bill they need not be answered.* 
 
 5. Documents — The answer must admit or deny allegations charg- 
 ing the possession by the defendant of documents relevant to com- 
 plainants' case as stated in his bill.'' 
 
 1. I Dan. Ch. PI. & Pr. pp.*5i7 * 
 
 *5i8 
 Langdell Eq. PI. § 84, 
 
 Where part of the defendants answered 
 traversing the principal averments of the 
 bill, and the plaintiff failed to prove such 
 averments, held that no decree could be 
 entered as to such principal averment, 
 against defendants not answering, but 
 otherwise as to allegations not connected 
 with such principal averments. State v. 
 Caihcart, 12 S. Car. 370. Accord, see Sal- 
 mon u. Smith, 58 Miss. 399 ; McDaniel 
 V. Goodall, 2 Coldw. (Tenn.) 391. 
 
 Where a defendant fails to answer an 
 averment, after repeated exceptions for 
 such failure, the bill may be taken as con- 
 fessed as to such averment. Hale v. 
 Continental Life Ins. Co., 20 Fed. Rep. 
 344; Buckingham v. Peddicord, 2 Bland 
 <Md.). 447; Weaver w. Livingston, Hopk. 
 <N. Y.) 595. 
 
 It has been held that the answer may in 
 such case be disregarded and the entire 
 bill taken/^-a confesso. Lea v. Vanbibber, 
 6 Humph. (Tenn.) 18. 
 : 3. Langdell Eq. PI. 8 84. 
 
 session documents tending to prove the 
 truth of the allegations in the bill. 2 Dan. 
 Ch. PI. & Pr. *i8l8; Langdell Eq. PI. § 
 205. This charge the defendant was 
 bound to answer, and if he failed so to do 
 an exception might be taken. If the an- 
 swer admitted the possession of relevant 
 documents, the court would, upon motion, 
 order the defendant to leave the docu- 
 ments with his clerk in court (i.e., his at- 
 torney) that the plaintiff might inspect 
 and make copies of them. 2 Dan Ch. 
 PI. & Pr. 1818 ; Atkyns v. Wright, 14 
 Ves. 211, 213; Lord Eldon in Princess of 
 Wales V. Earl of Liverpool; i Swanst. 
 114. The clerks in court could also be 
 compelled to attend with the documents 
 at the hearing. Langdell Eq. PI. § 209. 
 
 Th^ plaintiff must in his bill require 
 the defendant to schedule and describe 
 all documents admitted to be relevant, as 
 the court would not order the production 
 of documents unless clearly identified. 
 Langdell Eq. PI. § 205 ; Atkyns v. 
 Wright, 14 Ves. 211. 
 
 Discovery of documents may be made 
 
 .3. Langdell Eq. PI. § 84; Dominicetti by annexing them to the bill. Reed v. 
 
 -V. Latti. Dickens, 588. 
 
 4. Mechanics' Bank v. Levy, 3 Paige 
 <N. Y.), 606 ; Mechanics' Bank v. Lynn, I 
 Pet. 376; Miller ». Saunders, 17 Ga. 92; 
 ■Grim v. Wheeler, 3 Edw. (N. Y.) Ch. 
 
 334. 
 
 But special interrogatories are not 
 necessary (in the absence of a rule of 
 court), and defendant must answer the 
 averments of the bill, although there are 
 no interrogatories. Pitts v. Hooper, 16 
 Ga. 442; Jordan v. Jordan, 16 Ga. 446; 
 Miles V. Miles. 27 N. H. 440; M'Donald 
 ■V. M'Donald, 16 Vt. 630. 
 
 5, Langdell Eq. PI. § 76, and §§ 205- 
 208; t Pom. Eq. Jur. § 206. 
 
 By the former rules of English chan- 
 cery practice, in order to compel the pro- 
 duction of documents, the bill must con- 
 taiil a charge of documents — that is, a 
 (Charge that the defendant had in his pos- 
 
 Cumberland, etc., Ins. Co., 36 N. J. Eq. 
 146. 
 
 The plaintiff was concluded by the de- 
 fendant's answer as to the possession of 
 relevant documents. He could not dis- 
 prove by his own affidavit or those of 
 third persons, the defendant's denial of 
 possession er of relevancy. Langdell 
 Eq. PI. § 204; Bray on Discov. p. 153; 
 Barnett v. Noble, i Jac. & W. 227; I 
 Pom. Eq. Jur. § 206; Wright v. Pitt L. 
 PI. 3 Ch. ?09; Regnell v. Sprye, I De G. 
 M. & G. 656. See SauU v. Browne, L. 
 R. 17 Eq. 402. 
 
 As to the nature of the documents of 
 which the plaintiff was entitled to dis- 
 covery, they were those tending to prove 
 his own case. He was not entitled 10 
 inspect the documentary evidence in 
 support of his adversary's case. Dan. 
 Ch. PI. & Pr. *579, 580; Langdell Eq. PI. 
 
 603 
 
Scandalous Matter. 
 
 AJVS W£R. Exception for Insufficient Siscoyery, 
 
 6. Scandalous Matter — Impertinence. — Scandalous or impertinent 
 matter in an answer may be stricken out on motion. ^ 
 
 7. Exception for Insufficient Discovery. — The answer may be ex- 
 cepted to for insufficiency, in case the complainant deems it not 
 to give all the discovery to which he is entitled.** 
 
 § 213; Shadwell v. Shad well, 6 C. B., n. 
 s. 679; ^-troudz/. Deacon., i Ves. 37; Smith 
 V. Beaufort, i Ha. 507. 
 
 The modern practice in regard to pro- 
 duction of documents is almost every- 
 where based upon statutes. Thus the 
 English Judicature Act, § 27, provides 
 that " it shall be lawful for the court or 
 a judge at any time during the pendency 
 therein of any action or proceeding, to 
 order the production by any party there- 
 to, upon oath, of such documents in his 
 possession orpbwer, relating to any mat- 
 ter in question in such suit or proceed- 
 ing, as the court or judge shall think right, 
 and the court may deal with such doc- 
 uments, when produced, in such manner 
 as shall appear just." Under this statute 
 the admission of relevant documents in 
 the answer is no longer necessary. Pro- 
 duction of documents is ordered on 
 motion by the party desiring it, sup- 
 ported by affidavit stating the possession 
 hy his adversary of documents relating 
 To the matters in question in the suit. 
 But it seems that the adverse party may 
 file an affidavit denying possession or 
 relevancy, and that, as in case of an an- 
 swer to a charge of documents, under 
 the old practice such denial is conclusive 
 upon the party seeking production. Bray 
 Discov. pp. 154. 155; Wright v. Pitt, L. 
 R. 3 Ch. 809, 810; I Pom. Eq. Jur. § 206, 
 II. s. 
 
 Production of documents may still be 
 ordered on admissions of possession and 
 relevancy in the answer. But excep- 
 tions to the answer on the score of insuf- 
 ficient discovery as to documents is no 
 longer favored. Piffard v. Beeby, L. R. 
 I Eq. 623; Kidger v. Worswick, 5 Jur. 
 N. S. 37; Baniard z*. Hunter, i Jur. N. S. 
 1065. 
 
 Documents "relating to any matter in 
 question in such suit or proceeding, as 
 the court or judge shall think right" 
 (Judic. Act, § 27), is broader than 
 documents "by which the truth of the 
 facts alleged in the bill, or of some 
 of them, will appear" (the phrase- 
 ology of the usual "charge of docu- 
 ments" occurring in bills uiider the old 
 practice). It includes documents which 
 would not be evidence for the party, but 
 would give him directly or indirectly 
 some information as to the case. Bray 
 Discov. 183, citing Brett, M. R,, in Com- 
 
 pagnie Financifere, etc., v. Peruvian 
 Guano Co., 11 Q. B. D. 62. It does not, 
 however, include documents which con- 
 tain only evidence in support of the ad- 
 verse party's case. The statute gives 
 the party no right to production or in- 
 spection of such documents. Bewicke 
 V. Graham, L. R. 7 Q. B. D 400; At- 
 torney-General V. Emerson, L. R. 10 Q. 
 B. D. igi. 
 
 Privilege as a witness may be asserted 
 to protect the party claiming it from the 
 necessity of producing documents. i 
 Pom. Eq. Jur. § 207. The same rule 
 governing discovery by answer to charge 
 in the bill, apply i Pom. Eq. Jur. §207. 
 
 7 or a. re'sum^oi the statutory provisions 
 in regard to production and discovery of 
 documents, see Bills of Discovery, 
 Statutes. 
 
 1. Story Eq. PI. § 862; Cooper Eq. PI. 
 318; Langdell Eq. PI. §208; Crammer ». 
 Atlantic City Gas SW. Co., 39 N. J. Eq. 
 76; Oregonian R. Co. v. Oregon R. & 
 Nav. Co., 27 Fed. R. 277; Heckscher v. 
 Trotter, 5 Atl. R. 652; Langdon v. God- 
 dard, 3 Story (U. S. C. Ct.), 13. 
 
 According to the practice in some juris- 
 dictions, an answer may be excepted to 
 for impertinence. Langdon v. Goddard, 
 3 Story (U. S. C. Ct.), 13: Mason v. 
 Mason, 4 Hen. & Mun. (Va.) 414; Burr. 
 V. Burton, 18 Ark. 214; M'Intyre v. Trus- 
 tees of Union College, 6 Paige (N. Y.), 
 239: Johnson v. Tucker, 2 Tenn. Ch. 244; 
 United States v. McLaughlin, 24 Fed. R. 
 823. This was formerly the practice in 
 England. Raphael v. Birdwood, I 
 Swanst. 228; Beavan v. Waterhouse, 2 
 Beav. 58; Tench v. Cheese, I Beav. 571; 
 
 Pellew V. , 6 Ves. 456. But it has 
 
 been changed, and a motion to expunge 
 is now the only remedy. 15 & 16 Vict, 
 c. 86, §17. 
 
 An exception to an answer for imper- 
 tinence, embracing material matter, will 
 be overruled. Balcom v. N. Y. Life Ins. 
 & Trust Co., II Paige (N. Y.), 454; 
 Curtis V. Mastern, 11 Paige (N. Y.), 15. 
 
 Written exceptions for impertinence 
 are unnecessary when the court itsell re- 
 fers an affidavit upon scandal or imper- 
 tinence. Powell V. Kane, 2 Edw. (N. Y.) 
 
 450. 
 
 2. I Dan. Ch. PI. & Pr. 760; Story Eq. 
 PI. § 864. 
 
 The complainant must, in the first in- 
 
 603 
 
Exception for 
 
 ANSWER. 
 
 Insufficient Discovery. 
 
 The exceptions noted to the answer are, in case the defendant 
 does not submit to answer more fully, referred to a master in 
 
 stance, except to every part of the answer Mad. 396. And signed bycounsel. Cro? 
 
 which he deems insufficient. Blaisdell v. 
 Stevens, 16 Vt. 179; Travers v. Ross, I 
 McCarter (N. J.), 254; Story Eq. PI. § 
 864. 
 
 Failure to except waives insufficiency 
 of discovery. Warfield v. Gambrill, i 
 Gill & J. (Md.) 503. And the insufficiency 
 of the answer cannot be regarded as an 
 admission of the truth of the allegations 
 not answered. Savage v. Benham, 17 
 Ala. 119; Wooten v. Burch, 2 Md. Ch. 
 190; Blaisdell v. Stevens, 16 Vt. 179; 
 Pegg V. Davis, 2 Blackf. (Ind.)28i. Nor 
 ca^ the unanswered averments be taken 
 pro confesso without allowing defendant 
 to file a further answer. Nash v. Taylor, 
 2 Hayw. (N. Car.) 125; Marsh v. Craw- 
 ford, I Swan (Tenn.), 116. 
 
 The exceptions must be specific. Mut. 
 Life Ins. Co. v. Cokefair, 3 Atl. R. (N. 
 J.) 686; Turnaye v. Fisk, 22 Ark. 286. 
 
 Where by statute the failure to answer 
 a material averment of the bill admits its 
 truth, exceptions for insufficiency are no 
 longer necessary or proper. But an 
 answer may be excepted to on the ground 
 that its denials are hot sufficiently speci- 
 fic. Richardson v. Donehoo, 16 W. 
 Va., 685. By such a statute, only aver- 
 ments of facts charged to be or clearly 
 within defendant's knowledge are ad- 
 mitted by failure to deny. Cowen v. Al- 
 'sop, 51 Miss. 15S. 
 
 An unsworn answer cannot be excepted 
 to for insufficiency, because such answer 
 is not evidence. I Dan. Ch. PI. & Pr. (5th 
 Am. Ed.) 760, n. 2; McCormicki/. Cham- 
 berlain, 11 lb. 543; Sheppard u. Akers, 
 I Tenn. Ch. 326; Smith v. St, Louis Mut. 
 Life Ins. Co.. 2 Tenn. Ch. 599. Contra, 
 see Reed v. Cumberland Mut. Fire Ins. 
 Co., 36 N. J. Eq. 393. For the same rea- 
 son exceptions for insufficiency cannot be 
 taken to an infant's answer filed by his 
 guardian ad litem, i Dan. Ch. PI. & Pr. 
 *l69; Copeland v. Wheeler, 4 Bro. C. 
 C. 256; Lucas V. Lucas, 13 Ves. 274; 
 Leggett V. Sellon, 3 Paige (N. Y.), 84; 
 Bulicley v. Van Wyck, 5 Paige (N. Y.) 
 Ch. 536. Nor to the answer of a cor- 
 poration. United States v. McLaughlin, 
 24 Fed. R. 823. Nor to the answer of 
 the attorney-general. Davison v. Attor- 
 ney-General, 5 Price, 398, note. 
 
 Exceptions for insufficiency may be 
 filed after exceptions for impertinence. 
 Patriotic Bank v. Bank of Washington, 5 
 Cranch. (U. S. C. Ct.) 602. 
 
 Exceptions for insufficiency must be 
 in writing. De la Torre v. Bernales, 4 
 
 V. Cohen, 3 Gill (Md.), 257; Story Eq. PI. 
 § 864. And must specify that the answer 
 complained of was an answer to the bill. 
 Earl of Lichfield v. Bond, 5 Beav. 513, 
 514; Story Eq. 'Pi. §864; Conway z;. Tur- 
 ner, 8 Ark. 356; Baker v. Kingsland, 3 
 Edw. (N. Y.) 138. 
 
 The written exceptions must set out 
 verbatim the parts of the bill unanswered. 
 Stafford v. Brown, 4 Paige (N. Y.), Ch. 
 88; Cooper Eq. PI. 319; Brooks v. Byam, 
 I Story (U. S. C. Ct.), 296; Buloid v. 
 Miller, 4 Paige (N. Y.), 473; Baker v. 
 Kingsland, 3 Edw. (N. Y.) 138. It must 
 also set out verbatim, the part of the 
 answer excepted to. Bro'oks v. Byam, i 
 Story (U. S. C. Ct.), 296. 
 
 If an exception includes an averment 
 in the bill, to which the answer is unex- 
 ceptionable; together with one to which 
 it is exceptionable, the whole exception 
 must fail. Higginson v. Blockley, r 
 Jur. N. S. 1 104; Buloid v. Miller, 4 
 Paige (N. Y.), 473. 
 
 The objection of res adjudicata to the 
 defences set up by answer cannot be 
 taken by exception. Thrifts v. Fritz, 
 loi 111. 457. 
 
 After amendment of a bill, exceptions 
 to an answer for failure to give proper 
 discovery to the original bill are not al- 
 lowed. Failure to except to answer be- 
 fore amending the bill waives all insuffi- 
 ciencies of the answer. Overy v. Leigh- 
 ton, 2 S. & S. 234; Wich V. Parker, 22 
 Beav. 59; Irving' w. Viana, McClel. & Y. 
 563; 2 Dun. Ch. PI. & Pr. 761, 762; Cha- 
 zournes v. Mills, 2 Barb. (N. Y.)Ch. 466. 
 And where, after exceptions sustained 
 for insufficiency, a further answer is filed, 
 although plaintiff may insist that the fur- 
 ther answer does not supply the defects 
 pointed out by the original exceptions, 
 he cannot file new exceptions. Part- 
 ridge V. Haycraft, 11 Ves. 570, 581; 
 Williams v. Davies, I S. & S. 426; Story 
 Eq. PI. § 865: Bennington Iron Co. 'v. 
 Campbell, 2 Paige (N. Y.), 169. Where 
 the amendment totally changes the char- 
 acter of the bill, so that the defendant 
 is entitled to file a new answer thereto, 
 if defendant allows his answer to remain 
 on file as answer to the amended bill, it 
 may be excepted to for insufficiency or 
 impertinence as to any part. Angel v. 
 Penn. R. Co., 37 N. J. Eq. 92. 
 
 Afier filing four insufiicient answers, 
 the English practice was to commit the 
 defendant to prison for contempt, and 
 compel him to answer written interroga- 
 
 604 
 
Positive Knowledge. 
 
 ANSWER. 
 
 Sefences. 
 
 chancery, and, if he reports that the discovery is insufficient as to 
 any of the points noted, the court will compel further answer on 
 such points.'' 
 
 8. Positive Knowledge — Information and Belief. — The defendant 
 must answer positi\fely as to facts which are within his own 
 knowledge, if of recent occurrence. As to facts not within his 
 own knowledge, he must answer on information and belief, if he 
 have any information and belief in the matter.* 
 
 9. Defences. — Besides discovery, an answer contains a statement 
 of the defence or defences on which the defendant means to 
 rely.* 
 
 tories prepared by the plaintiff's counsel 
 and settled by the master. Farquharson 
 V. Balfour, T. & Russ. 184; Langdell Eq. 
 PI. § 82; I Dan. Ch. PI. & Pr. *77i. 
 
 Where a defendant demurs or pleads 
 to a part of the discovery and answers as 
 to the rest, exceptions to the answer be- 
 fore the argument of the plea or de- 
 murrer admit the validity of the plea or 
 demurrer. Story Eq. PI. § 866; Cooper 
 Eq. PI. 321; : Dan. Ch. PI. & Pr. *76o; 
 Darnell v. Reyny, i Vern. 344; Brownell 
 V. Curtis, 10 Paige (N. Y.). 210. 
 
 Exceptions cannot be taken after repli- 
 cation filed. Coleman v. Lyne, 4 Rand. 
 (Va.) 454. 
 
 1. Story Eq. PI. § 865; Langdell Eq. 
 PI. § 82. 
 
 Either party may except to the master's 
 report upon the exceptions to the an- 
 swer. Story Eq. PI, § 865. If defendant 
 submits to exceptions, or to the report 
 of the master allowing them, he cannot,- 
 upon reference of a further answer, insist 
 that the original exceptions were not well 
 taken. Higbie v. Brown, i Barb. (N. Y.) 
 Ch. 320. 
 
 A court may itself pass upon excep- 
 tions without referring them to a master. 
 Satterwhite v. Davenport, 10 Rich. (S. 
 Car.) Eq. 305. 
 
 2. Story Eq. PI. § 854: i Dan. Ch. PI. 
 & Pr. (stli Am. Ed.)*722: Tradesman's 
 Bank v. Hyatt, 2 Edw. (N. Y ) Ch. igs: 
 Bailev v. Wilson, i Dev. & Bat. (N. Car.) 
 Eq. 182, 187; Hall v. Wood, i Paige (N. 
 Y.), 404; Utica Ins. Co, v. Lynch. 3 Paige 
 (N. Y.), 210; Sloan v. Little. 3 Ibid. 103; 
 Brotherton v. Downey, 21 Hun (N. Y.), 
 436; Reed v. Cumberland Mut. Fire Ins. 
 Co., 36 N. J. Eq. 146; Rienzle v. Bar- 
 ker. 4 Atl. R. (N. J.) 309; Smith v. 
 Loomis, 5 N. J. Eq. 60; Grady v. Rob- 
 inson. 28 Ala. 289; Noyes o. Ireland, 
 etc.. Co., 4 MacArth. (D. C.) i. 
 
 An answer denying knowledge on the 
 part of the defendant may be excepted 
 10 unless it also deny information and 
 belief as welh Kittredge v. Claremont 
 
 Bank, i Woodb. & M. (U. S. C. Ct.) 244; 
 Brooks i*. Byam, i Story (U.S. C.Ct.),296; 
 Bradford v. Geiss, 4 Wash. (U. S. C. Ct.) 
 513; Kinnaman v. Henry, 6 N. J. Eq. 90; 
 Robinson v. Woodgate, 3 Edw. (N. Y.) 
 422; Brotherton v. Downey, 21 Hun (N. 
 Y.), 436; Reed v. Cumberland Mut. Fire 
 Ins. Co., 36 N. J. Eq. 146. Sanderlin z/. 
 Sanderlin, 24 Ga. 583; Bailey v. Wilson, 
 I Dev. & B. (N. Car.) Eq. 182; Deve- 
 reaux v. Cooper, 11 Vt. 103. 
 
 As to facts within defendant's knowl- 
 edge, but not of recent. occurrence, he 
 may answer to his remembrance. Lord 
 Clarendon's order provided that he must 
 answer positively if the facts were laid 
 to be done within seven years, unless the 
 court should see fit to relax the rule for 
 cause shown. Story Eq. PI. § 855. 
 
 Defendant may answer to remembrance 
 when the facts occurred more than six 
 years before. Cary v. Jones, 8 Ga. 516. 
 
 If the court is satisfied that defendant 
 cannot swear positively, an answer as to 
 his belief will be allowed, even as to his 
 own acts. Hall v. Wood, i Paige (N. Y.), 
 404. 
 
 3. It seems that an answer need only 
 state aflBrmative defences. Defences con- 
 sisting in the denial of material aver- 
 ments of the bill need not be stated. 
 Langdell Eq. PI. § 79. It is only in sc> 
 far as the answer contains a statement of 
 defence or defences that it is in any pro- 
 per sense a pleading. 
 
 A defendant need only state the facts 
 constituting his defence; he need not state 
 the conclusion of law he intends to draw 
 from those facts. Stone v. Moore, 26 111. 
 165. But where the answer states certain 
 facts as evidence of a particular defence, 
 such facts cannot be made use of at the 
 hearing to establish an, entirely different 
 defence. i Dan. Ch. PI. & Pr. *7I2; 
 Bennett v. Neale, Wightw. 324. 
 
 A defendant cannot avail himself of 
 any defence appearing in his evidence 
 not/ stated in his answer. Stanley v. 
 Robinson, I R. & M. 527, 529; Harrison 
 
 605 
 
Jinswer not Demurralile. 
 
 ANSWER. 
 
 Answer in Support of Fleas. 
 
 The answer may set up several defences to the entire bill, pro- 
 vided they be not inconsistent with each other.^ 
 
 10. Answer not Demurrable. — The legal sufficiency of defences 
 set up by answer cannot be questioned by demurrer.** 
 
 11. Answer in Support of Fleas. — Anomalous' and negative pleas 
 must be supported by answer, giving discovery as to averments of 
 the bill disproving or avoiding the plea.' 
 
 "z/. Borwell, lo Sim. 382; Hodgson w. 
 Thornton, i Eq. Ca. Abr. 228, pi. 5; 
 Burnham v. Dalling, 3 C. E. Green (N. J.), 
 132; Hart w. Schenck, 32 N. J. Eq. 148; 
 Fuller V. Fuller, 3 Atl. Rep. (N. J.) 409. 
 
 In slating his case, the defendaiit must 
 "Use such degree of certainty as will in- 
 iorm the plaintiff of the nature of the 
 case to be made against him. i Dan. 
 Ch. PI. & Pr. 714; Cummings z;. Cole- 
 man, 7 Rich. (S. Car.) Eq. 509; Gates z/. 
 Adams, 24 Vt. 70. 
 
 It seems that any sort of defence may 
 be taken by answer, i Dan. Ch. PI. & 
 Pr. *7I4. It seems that certain defences 
 to discovery, available by plea or demur- 
 rer, such as purchase for value without 
 notice, cannot be taken by answer. Story 
 Eq. PI. § 847; Portarlington v Soulby, 7 
 Sim. ,28. Contra, see 39th Rule of Equity, 
 Supr. Ct. of U. S. Any defence to the 
 relief may be taken by answer. 
 
 The defence of statute of limitations 
 may be taken by answer. Pierce v. Mc- 
 Clellan, 93 111. 245. The defendant can- 
 not obtain relief by answer. He must 
 file a cross-bill. Duryea v. Linsheimer, 
 2.1 N. J. Eq. 366; Wicliffe w. Clay, i 
 Dana (Ky.), 589; Carnochan v. Christie, 
 II Wheat. 446; Andrews v. Kibbee, 12 
 Mich. 94; Mason v. McGirr, 28 111. 322; 
 Weisman v. Smith, 6 Jones (N. Car.) 
 Eq. 124; Pattison v. Hull, 9 Cow. (N. 
 Y.) 747; Norman v. Huddleston, 64 111. 
 11; Andrews v. Oilman, 122 Mass. 471; 
 2 Dan. Ch. PI & Pr. (5th Am. Ed.) 1550. 
 
 1. I Dan. Ch. PI. & Pr. *7I3; Lang- 
 ■dell Eq. PI. § 79; Hopper v. Hopper, 11 
 Paige (N. Y.), 46. 
 
 A defendant may not set up inconsist- 
 ent defences, or those which are the con- 
 -sequence of inconsistent facts. I Dan. 
 Ch. PI. & Pr. 1*713; Jesus College z-. 
 ■Gibbs, I Y. & C. Ex. 145, 160. 
 
 2. Langdell Eq. PI. § 83; United States 
 ■V. McLaughlin, 24 Fed.R.' 823; Williams 
 -V. Owens, 2 Freem. 181. 
 
 If the plaintiff deems the defences 
 taken by the answer to be invalid, and 
 that the answer affords sufficient proof 
 of his bill, he may have the cause set 
 down for hearing upon bill and answer. 
 Langdell Eq. PI. § 83. In which case 
 the defences taken in the answer are 
 
 assumed to be true and their legal suf- 
 ficiency alone considered. Langdell Eq. 
 PI. § 83; I Dan. Ch. PI. & Pr. (5th Am. 
 Ed.) *982; Fordyce v. Shriveri 5 N. 
 E. R. (111.) 87; Crowe v. Wilson, 5 Atl. 
 Rep. (N. J.) 427; Leeds v. Marine Ins. 
 Co., 2 Wheat. 380; Von Schmidt w. Hunt- 
 ington, 1 Cal. 55; Baldwin v. Lee, 7 Ga. 
 186;. Derby v. Gage, 38 111. 27; Westfall 
 V. Lee, 7 Iowa. 12; Wheeler's Estate, I 
 Md. Ch. 80; Rogers v. Mitchell, 41 N. 
 H. 154; Booraem v. Wells, 19 N. J. Eq. 
 87; Gates V. Adams, 24 Vt. 70; Blanton 
 V. Bracket!, 5 Call (Va.), 232; Gaines v. 
 Agnelly, i Woods (U. S. C. Ct.), 238. 
 The plaintiff must prove his bill by ad- 
 missions in the answer. Ibid.; Childs 
 V. How, I Clarke (Iowa), 432; Warren 
 V. Twilley,io Md. 39; Perkins v. NichoUs, 
 II Allen (Mass.), 542; Brinckerhoff v. 
 Brown, 7 John. (N. Y.) Ch. 217; Crowe 
 V. Wilson, 5 Atl. Rep. (N. J.) 427; United 
 States V. Scott, 3 Woods (U. S. C. Ct. ), 334. 
 
 3. A negative plea is one traversing a 
 material allegation of the bill or com- 
 plaint. I Dan. Ch. PI. & Pr. *604. 
 An anomalous plea is an affirmative 
 plea, containing a traverse of an affirma- 
 tive reply to the plea set up in the bill 
 in anticipation of the defence. Such a 
 plea is in reality an affirmative plea, and 
 a negative rejoinder to an affirmative 
 replication, both being pleaded in a 
 single pleading. Langdell Eq. PI. § loi. 
 
 An answer must be filed in support of 
 a plea in two cases. First, when the bill 
 contains averments inconsistent with and 
 in disproof of the plea, whether the plea 
 be affirmative or negative. I Dan. Ch. 
 PI. & Pr. (5th Am. Ed.) *6i6; Langdell 
 Eq. PI. § 102; Story Eq. PI. § 668 et seq. 
 Second, in the case of anomalous pleas. 
 
 I Dan. Ch. PI. & Pr. (5th Am. Ed.) *6i6; 
 Langdell Eq. PI. loi ; State Bank v. Wil- 
 son, 4 Gilm. (111.) 57; Chapin v. Coleman, 
 
 II Pick. (Mass.) 331. In the first case 
 the discovery must be as to the aver- 
 ments in disproof of the plea. Langdell 
 Eq. PI. § 105. In the second as to aver- 
 ments in support of the affirmative reply 
 to the plea. Langdell Eq. PI. § loi. 
 The reason why the plaintiff is entitled to 
 the discovery above indicated is because 
 it may aid him in proving his case at the 
 
 606 
 
Ploa Oyerruled by Answer. 
 
 ANSWER. 
 
 Form of Answer — Oath, 
 
 12. Plea Overruled by Answer — A defendant cannot defend a 
 single cause of action by both plea (or demurrer) and answer.^ 
 
 In such a case the answer overrules the plea — that is, the plea is 
 disregarded.* 
 
 13. Form of Answer. — The answer is headed by the title, specify- 
 ing of which of the defendants it is the answer, and the names of 
 the plaintiffs in the cause. ^ 
 
 Then follows a reservation of all advantages that might have 
 been taken by exception to the bill.* 
 
 Then comes the substance of the answer, consisting of matters' 
 of discovery and defence.^ 
 
 Last of all comes the general traverse of all the unlawful com- 
 bination charged in the bill, and all other matters therein con- 
 tained.* 
 
 14. Oath. — The ofifice of the answer being to give discovery, it 
 must be sworn to by the party for whom it is filed.' 
 
 The plaintiff may, however, by his bill waive an answer under 
 oath. 
 
 hearingof the plea. Story Eq. PI. §672. 
 The reason why he is not entitled to 
 discovery as to the rest of his bill is be- 
 cause it is constructively admitted by the 
 plea. 
 
 1. Langdell Eq. PI. § 103; Cottington 
 V. Fletcher, 2 Atk. 155; Bolton w Gard- 
 ner, 3 Paige, 273: Ferguson v. O'Harra, 
 Peters (U. S. C. Ct.), 493: Souzer v. De 
 Meyer, 2 Paige (N. Y.) Ch. 574; Brow- 
 nell V. Curtis, 10 Paige (N. Y.), 210; 
 Bruen v. Briien, 4 Edw. (N. Y), 640; 
 Bank v. Dugan, 2 Bland (Md.), 254; 
 Joyce V. Gunnels, 2 Rich. (S. Car.) Eq. 
 259; Bell V. Woodward, 42 N. H. 181; 
 L. Episcopal Church v. Leroy, Riley (S. 
 Car.)Ch. 156. 
 
 It has been held that this rule applies 
 in case of a negative or anomalous plea, 
 and an answer filed in support of it. 
 Thring 1). Edgar, 2 Sim. & Stu. 224; Bol- 
 ton V. Gardner, 3 Paige (N. Y.), 273; 
 Bangs u. Strong, 10 Ibid. II; Bank v. 
 Dugan, 2 Bland. (/Md.) 254; Lacraft v. 
 D^mpsey, 4 Paige, 124; Lewis v. Baird, 
 3 McLean (U. S. C. Ct.), 56. But it 
 seems that it should properly apply 
 only to cases where the answer contains 
 statements of defence, and not when, as 
 in case of answers in support of pleas, the 
 office of the answer is to give discovery 
 solely. Langdell Eq. PI. § 103. 
 
 This application of this rule, in connec- 
 tion with the rule requiring the answer 
 in support of a plea to be full, rendered 
 it very difHcult to take a defence by way 
 of plea and answer. In England this 
 diflSculty has been done away with by 
 court rules providing that an answer in 
 
 support of a plea should not overrule it. 
 I Dan. Ch. PI. & Pr. *6i7. 
 
 2. Langdell Eq. PI. § 103; Mitford Eq. 
 PI (4lh Ed.) 209, 210, 319, 320. 
 
 3. Siory Eq. PI. ^ 870; I Dan. Ch. PI. 
 & Pr. (5ih Am. Ed.) *73i; Fulton Co. 
 V. Mississippi & Wabash R. Co., 21 111. 
 338. 
 
 An answer may be rejected when not 
 properly entitled. Supervisors, etc., v. 
 Mississippi, etc., R. Co., 21 111. 338. 
 
 4. Story Eq. PI. § 870. 
 
 The general reservation is generally 
 omitted in the answer of an infant. 
 Story Eq. PI. § 871. 
 
 5. Storv Eq. PI.- § 870. 
 
 6. Story Eq. PI. § 870. 
 
 The general traverse and denial of 
 combination are omitted in answers for 
 infants. Story Eq. PI. S^ 871. 
 
 7. Story Eq. PI. § 874; i Dan. Ch. 
 PI. & Pr. (5th Am. Ed.)*734; Van Alten- 
 burg V. Alberry, 10 Iowa. 264. 
 
 An answer sworn to by only part of 
 the defendants joining, cannot be admit- 
 ted as a joint answer. Masterson w. Craig, 
 5 Litt. (Ky.) 39. 
 
 8. Story Eq. PI., § 874. 
 
 It has often been stated that the plain- 
 tiff may compel the defendant to answer 
 withdutoath. But it seems that the right 
 to answer under oath, and thus to compel 
 the plaintiff to prove averments traversed 
 by the answer by more than ihe testi- 
 mony of a single witness, is one which 
 the defendant cannot be deprived of bv 
 the plaintiff. Story Eq. PI. (gth Ed.) § 
 ,874, n. a ; Langdell Eq. PI. § 78; Clem- 
 ents V. Moore, 6 Wall. 299; Amory v. 
 
 607 
 
signature —Parties. 
 
 ANSWER. 
 
 Ansver by Infant, etc 
 
 15. Signature. — The answer must be signed by the party filing 
 it,*- and by his counsel.^ 
 
 16. Parties. — Two or more parties defendant may join in an an- 
 swer.^ 
 
 Where several defendants are joined in a bill, each one need only 
 give discovery as to allegations material to the relief sought against 
 him.* 
 
 17. Answer by Infant, Married Woman, etc.: — An infant answers 
 by his guardian ad litem. A lunatic by his committee or guardian 
 ad lit em. ^ 
 
 sign the answer for him. Supervisors, 
 etc., V. Mississippi, etc., R. Co., 2i III. 
 338; Hatch V. Eustaphieve, i Clarke (N. 
 Y.), 63. 
 
 An answer filed by one purporting to 
 be "agent and attorney in fact" for one 
 of the defendants will not be noticed at 
 the hearing. Palmer w. Yarborough, i 
 Ired. (N. Car.) Eq. 310. 
 
 The answer must be signed though 
 oath waived. Kimball v. Ward, Walk. 
 (IVlich.), 439. 
 
 But name of a municipal corporation 
 need not be signed by an officer of the 
 same. If the name appears, it will, in 
 the absence of evidence to the contrary, 
 be presumed to have been written by one 
 bearing authority. Larrison v. Peoria, 
 etc.. R. Co., 77 111. 11. 
 
 Where members of a firm are not 
 charged with personal knowledge, one 
 partner may answer on behalf of the firm. 
 Reynolds v. Dothard, 11 Ala. 531. 
 - 2. Story Eq. PI. § 876; Cooper Eq. 
 PI. 327; Davis V. Davidson, 4 McLean 
 (U. S. C. Ct.), 136; I Dan.Ch. PI. & Pr. 
 (5th Am. Ed.) *732. 
 
 By N. J. practice the signature of the 
 solicitor is sufficient. Counsel need not 
 sign. Freehold, etc., Assoc, v. Brown, 
 28 N. J. Eq. 42. 
 
 3. iDan.Ch.Pl.&Pr.(5thAm.Ed.)*72g. 
 Where defendants have a joint interest 
 
 only, they will not in general be allowed 
 to sever in their defence, i Dan. Ch. PI. 
 & Pr. (5th Am. Ed.)*73o; Gaunt z/. Tay- 
 lor, 2 Beav. 346; Dudgeon v. Corley, 4 
 Dr. & War. 158. It is, however, merely 
 a question of costs. 
 
 4. Story Eq. PI. § 853, c. 
 In a bill in equity where there are 
 
 several parties defendant, it frequently 
 happens that certain allegations in the 
 bill relate only to the relief sought by 
 particular defendants. Such allegations 
 need not be answered by the other parties 
 defendant. Story Eq. PI. § 853, c. \ Hare 
 Discov. 160; Agar v. Regent's Canal Co., 
 Cooper, 212, 215. 
 
 5. Story Eq. PI. § 871 ; I Dan. Ch. 
 PI. & Pr. (5th Am. Ed.)*753, *754. 
 
 Lawrence, 3 Cliff. (U. S. C. Ct.), 523, 537; 
 Brown v. Bulkley, 14 N. J. Eq. 294, 306; 
 Story Eq. PI. § 875, a. Contra, Dorn 
 V. Bayer, 16 Md. 144; Winchester v. 
 Baltimore, etc., R. Co., 4 lb. 231 (stat- 
 ute); Willenborg v. Murphy, 36 111. 344; 
 Wallwork v. Derby, 40 111. 527; Hyfer v. 
 Little, 20 N. J. Eq. ",43. 
 
 Where defendant has answered under 
 oath, the evidentiary force of the oath 
 cannot be annulled by an amendment to 
 Jhe bill waiving the oath. Walker v. 
 Campbell, 5 Lea (Tenn.). 354. 
 
 An unsworn answer filed by counsel 
 without concurrence of the defendant, 
 and subsequently withdrawn on that ac- 
 count, cannot be read as admissions of 
 defendant. Hurst v. Jones, 10 Lea 
 (Tenn.), 8. 
 
 An unsworn answer is a mere plead- 
 ing, Willis V. Henderson, 4 Scam. (111.), 
 13; Ransom v. Henderson, 4 N. E. R. 
 (111.) 141; Willenborg v. Murphy, 36 111. 
 344; Wallwork v. Derby, 40 111. 527; 
 Wilson V. Towle, 36 N. H. 129; Morris v. 
 Hoyt, II Mich. 9. It is, however, evi- 
 dence in favor of complainant. Smith 
 V. Potter, 3 Wis. 432; Hyer v. Little, 20 
 N. J. Eq. 443. 
 
 Where the interests of the defendants 
 are separate, an answer on oath may be 
 waived as to one defendant, without 
 waiver as to the others. Bulkley v. Van 
 Wyck, 5 Paige (N. Y.), 536; Morse v. 
 Hovey, i Barb. (N. Y.) Ch. 404. 
 
 But qucere where their interests are 
 joint. Stephenson t/. Stephenson, 6 Paige 
 (N. Y.), 353. 
 
 1. Story Eq. PI. § 875; t Dan. Ch. 
 PI. & Pr. (5th Am. Ed.) *733; Wilson v. 
 Grace, 14 Ves. 172; Harding w. Harding, 
 12 Ves. 159; Van Altenburg v. Alberry, 
 10 Iowa, 264. 
 
 This requirement is not insisted upon 
 if there is good reason why the answer is 
 not signed by the party. Cooper Eq. PI. 
 326, 327; Story Eq. PI. §875; i Dan. Ch. 
 PI. & Pr. (5th Am. Ed.) *734. 
 
 It is not necessary, according to the 
 American practice, that the defendant 
 should sign for himself., Counsel may 
 
 608 
 
8w-orn Answer as 
 
 ANSWER. 
 
 Evidence for Defendant. 
 
 A husband and wife must answer jointly where both are parties 
 defendant.^ 
 
 18. Sworn Answer as Evidence for Defendant. — Material aver- 
 ments of a bill denied by an answer under oath must be proved by 
 the testimony of two witnesses, or of one witness supported by 
 corroborating circumstances.* 
 
 Ch. PI. & Pr. (5th Am. Ed.) *i8o; Story 
 Eq. PI. § 71. But a wife cannot answer 
 separately from her husband without a 
 special order. Toole v. DeKay, 4 Sandf. 
 (N. Y.) Ch. 385; Robbins v. Abraham, 
 5 N. J. Eq. 16; Leavitt ». Cruger, i Paige 
 (N. Y.), 421. 
 
 2. Story Eq. PI. § 875, a; Langdell, Eq. 
 PI. § 78: Burke's Appeal, 99 Pa. St. 350; 
 Nulton's Appeal, 103 Pa. St. 2S6; Ricki/. 
 Neitzy, i Marck. (D. C.) 21; Willdey v. 
 Webster, 42 111. 108; Blow v. Gage, 44 
 III. 208; Slessinger v. Buckingham, 17 
 Fed. R. 454; Hogan v. Smith, 16 Ala. 
 600; Jones V. Perry, 10 Yerg. (Tenn.) 
 5g; Lee v. Baldwin, 10 Ga. 208; Jones v. 
 Slubey, 5 Har. & J. (Md.) 392; Hardy v. 
 Summers, 10 Gill & J. (Md.)3i6; Lyerly 
 V. Wheeler, 3 Ired. (N. Car.) Eq. 599; 
 Schwarz v Wendell, Walk. (Mich.) 267; 
 Bank v. Griffith, 2 Wise. 443; Smith' v. 
 Clark, 4 Paige (N. Y.), 368; Hughes v. 
 Blackwell. 6 Jones (N. Car), Eq. 73; 
 Miles V. Miles, 32 N. H. 147; Dunn v. 
 Graham, 17 Ark. 60; White v. Walker, 5 
 Fla. 478; State ti. Tilghman, 6 Iowa, 496; 
 Bird V. Styles, 18 N. J. Eq. 297; Gould 
 V. Williamson, 21 Me. 273; Union Bank 
 V. Geary, 5 Pet. 99; Mason v. Peck, 7 J. 
 J. Marsh. (Ky.) 300; Johnson u. Crip- 
 pen, 62 Miss. 597. 
 
 In Vigel V. Hopp, 104 U. S. 441, it was 
 held that the corroborating circumstances 
 must be equivalent to another witness. 
 
 In Jones v. Abraham, 75 Va. 466. it 
 was held that documentary or circum- 
 stantial evidence alone, without any wit- 
 ness, was enough. Accord, see Jones v. 
 Belt, 2 Gill (Md.), 106. 
 
 Where a sworn answer was filed 
 denying the material allegations of the 
 bill, and the complainant thereupon dis- 
 missed and filed a new bill waiving an 
 apswer under oalh, held, that the first 
 answer remained evidence in the second 
 suit, and that its traverses must be dis- 
 proved by more evidence than the oath 
 of a single witness. Mey tj. Guliiman, 
 105 III. 272, 
 
 The rule does not apply to averments 
 denied upon information and belief. 
 Berry v. Sawyer, 19 Fed. Rep. 286 , 
 Allen V. O'Donald, 28 Fed. Rep. 17; 
 Pennington v. Gittings, 2 Gill & J. (Md.) 
 208. See Arline v. Miller, 22 Ga. 330; 
 Newman v. James, 12 Ala. 29; Paulding 
 
 The answer of an infant by his guard- 
 ian cannot be read against the infant 
 Stephenson v. Stephenson, 6 Paige (N. 
 Y.) Ch. 353: Harris v. Harris, 6 Gill & 
 J. (Md.) Ill; Kent's Admrs. v. Taney- 
 hill, 6 Gill & J. (Md.) I. 
 
 Nor do its sworn traverses of material 
 averments of 'the bill require to be dis- 
 proved by more evidence than the testi- 
 monv of a single sworn witness. Bulk- 
 iey V. Van Wyck, 5 Paige (N. Y.) Ch. 
 
 536- 
 
 In the case of a lunatic with committee, 
 the committee may answer. No order 
 is necessary to entitle the committee to 
 defend, but they must first obtain the 
 permission of the judge or court in the 
 lunacy, before defending, i Dan. Ch. 
 PI. & Pr. (5th Am. Ed.) *I75; Story Eq. 
 PI. § 70; Harrison v. Rowan, 4 Wash. 
 (U. S. C. Ct ) 202. 
 
 In Exec, of Brasher v. Van Cortlandt, 
 2 John. (N. Y.) Ch. 242. it was held un- 
 necessary to make the lunatic a party 
 to a bill by a creditor for the pay- 
 ment of the lunatic's debts; that the com- 
 mittee, only, need be made defendants. 
 But when the interests of the lunatic and 
 his committee are conflicting, both should 
 be made parties. Teal v. Woodworth, 3 
 Paige (N. Y.) Ch. 470. 
 
 A person of weak or unsound mind, 
 but not so found by inquisition, answers 
 by a guardian ad litem appointed by 
 order of the court, the same as an in- 
 fant. I Dan. Ch. PI. & Pr. (5th Am. Ed.) 
 *l-6. 
 
 1. I Dan. Ch. PI. & Pr. (5th Am. Ed.) 
 *754: Siory Eq. PI. § 71- 
 
 In equity, as at law, when a suit is 
 instituted against a married woman her 
 husband must be joined as party defend- 
 ant. 2 Story Eq. Jur. § 1368; Story Eq. 
 PI. § 71. 
 
 In general the husband and wife must 
 answer~jointly. But where the suit relates 
 to a demand against the wife's separate 
 estate, and the husband is joined solely 
 for conformity, the' plaintiff may compel 
 a separate answer from the wife. Dubois 
 V. Hole. 2 Vern. 613. 
 
 And in certain cases, upon sufficient 
 cause shown, as where the husband and 
 wife are living apart, on application of 
 either husband or wife, leave, will be 
 granted to answer separately, i Dan. 
 
 609 
 
Amendment. 
 
 ANS WEH— ANTICHRESIS. 
 
 Sefinitton. 
 
 19. Amendment. — Amendments of answers are not easily allowed, 
 since they are sworn pleadings.^ 
 
 In general this indulgence is confined to cases of mere mistake 
 or surprise.''* 
 
 ANTICHRESIS.— A kind of pledge, known to the Roman law, 
 by which the pledgee took the fruits of the thing pledged in lieu 
 of interest on his loan.'' 
 
 V. Watson, 21 Ala. 279; State v. Hol- 
 loway, 8 Blackf. (Ind.) 45; Whittington v. 
 Roberts, 4 T. B. Mon. (Ky.) 173; Town 
 ■V. Needham, 3 Paige (N. Y.), 546; Fry- 
 rear V. Lawrence, 5 Gilm. (111.) 325; Mc- 
 Lard v. Linnville, 10 Humph. (Tenn.) 
 263; Berry v. Sawyer, ig Fed. R, 286. 
 Or where the defendant, being called as 
 witness, himself refutes the sworn state- 
 ment in his answer. Morris v. White, 36 
 N. J. Eq. 324. Or in case of an unsworn 
 answer. Clay, Assignee, v^ Towle (Stat- 
 ute, N.J.), 2 Atl. R. 852. Even though 
 a sworn answer be waived by the bill. 
 Miller w. Avery, 2 Barb. (N. Y.) Ch., 582; 
 Bartlett v. Gale, 4 Paige (N. Y.), Ch. 
 503; Patterson v. Gaines, 6 How. 550; 
 Peek V. Hunter, 7 Ind. 295. Or to alle- 
 gations in the answer not responsive to 
 the bill. Randall v. Phillips, 3 Mass. 
 (U. S. C. Ct.) 378; Lane v. Marshall, 65 
 Vt. 85; Beckwith v. Butler, i Wash. (Va.) 
 224; Gardiner v. Harden, 12 Gill & J. 
 (Md.)365; Planters' Bank v. Stockman, 
 I Freem. (Miss.) 502; Atwood v. Harri- 
 son, 5 J. J. Marsh. (Ky.) 329; Green v. 
 Vardiman, 2 Blackf. (Ind.) 324; Walker 
 V. Scott. 13 Ark. 644; Cartledge v. Cut- 
 liff, 29 Ga. 758; Leach v. Forbes, 11 Gray 
 (Mass.), 506; Fisher v. Porch, 10 N. J. Eq. 
 243; Coleman v. Ross, 46 Pa. St. 180; 
 Cloud V. Calhoun, 10 Rich. (S. Car.) Eq. 
 358; Sheldon v. Sheldon, 3 Wis. 699; 
 Barton v. Barton, 75 Ala. 400. Or 
 where the answer does not fully meet 
 the facts as charged. Gregg v. Renfrews, 
 24 111. 620. 
 
 A denial, not of facts, but of a legal 
 conclusion from them, need not be over- 
 come by evidence. Gaines w,. Russ, 20 
 Fla. 157. 
 
 Where an answer is discredited upon 
 some points, it is said it will not be sus- 
 tained as to others against the testimony 
 of one witness. Young v. Hopkins, 6 T. 
 B. Mon. (Ky.) 18; Morris v. White, 36 
 N. J. Eq. 324; Forsyth v. Clark, 3 Wend. 
 (N. Y.) 637. 
 
 A corporation cannot swear to its 
 answer. It has therefore been claimed 
 that on this account its answer not sworn 
 to should have the same effect as to the 
 amount of evidence necessary to over- 
 come its denials of material averments 
 
 of the bill that is accorded to sworn 
 answers. But this claim has been disa].* 
 lowed. Langdell Eq. PI. § 78; Story 
 Eq. PI. 875, a; Union Bank v. Geary, 5 
 Pet. 99, 110-112; McLard v. Linnville, 
 10 Humph. (Tenn.) 163; Maryland, etc., 
 Co. V. Wingert, 8 Gill (Md.), 170. ; 
 
 A sworn answer, in so far as it is re-- 
 sponsive, is evidence in favor of a cp^ 
 defendant, but not against him. Pleds- 
 anton v. Raughley, 3 Del. Ch. 124. 
 
 1. Story Eq. PI. § 896. 
 Amendment is usually only allowed in 
 
 small matters, not in material ones. 
 Story Eq. PI. .§ 8g6: Smith v. Babcock, 
 3 Sumner (U. S. C. Ct.), 583. 
 
 2. Story Eq. PI. § 896; Smith v. Bab- 
 cock, 3 Sumner (U. S. C. Ct.), 583. 
 
 3. Generally the pledgee was obliged 
 to account to the pledgor for the prod- 
 ucts of the pledge received by him. 
 Mackeldy Rom. Law, § 346; Pothier 
 Nantissement, 35; Story Bailm. § 343; 
 Mackenzie Rom. Law ,(3d Ed.), 212. 
 
 But by special agreement called anti- 
 chresis lavTixpr!aii = a.a exchange of 
 uses) the creditor was sometimes given 
 the right to retain the fruits of the thing 
 pledged in lieu of interest on his debt, 
 and such a contract was valid, when not 
 made to conceal usury. Mackeldy Rom. 
 Law, § 346, n. 4; Muhlenbruch Doctrina 
 Patidectarum, § 321; Story Bailm. S344- 
 
 In such case the creditor need not ac- 
 count for the fruits. 
 
 In modern times the law relating to 
 antichresis has been so modified, that, in 
 all cases, the creditor must account for 
 the fruits or profits received above inter- 
 est and expenses. Story Bailm. § 344; 
 Pothier Nantissement, n. 20; i Domat, 
 B.3, tit. I, § I, art. 28; Civ. Code of Lou- 
 isiana, arts. 3102, 3143; 4 Kent Comm. 
 138, n. c. 
 
 The Welch mortgage was a contract 
 precisely similar to the old Roman anti- 
 chresis. The creditor took the profi,ts of 
 the land in lieu of interest, and was not 
 bound to render any account of them. 
 But in cases of Welch mortgages, courts 
 of equity would, if the value of the rents 
 and profits was excessive, decree an ac- 
 count, any agreement to the contrary 
 notwithstanding. 4 Kent Comm. 137. 
 
 610 
 
Definition, 
 
 ANTICHRESIS— ANY. 
 
 ConstrrictionB, 
 
 ANY. — A common word in statutes and other writings, having 
 sometimes the sense of "some," but more frequently that of 
 " all " or " every." Like the word " all " (which see), it has often 
 been made the subject of judicial construction, and, like that 
 word, its meaning has been restrained and limited,^ as in the 
 examples given below.* 
 
 Antichresis is also analogous to the 
 old vivum vadium. 
 
 In Louisiana, under the Civil Code, 
 there are two kinds of pledges — the 
 pawn, where the security is movable, 
 and the antichresis, where the security 
 consists in immovables or real estate. 
 Under the latter the creditor acquires the 
 right to take the rents and profits of the 
 land, and to credit the same annually, 
 upon the interest and the surplus upon 
 the principal of the debt, and is bound to 
 keep the estate in repair and to pay the 
 taxes. Upon default the creditor may 
 obtain a decree for selling the thing 
 pledged. 4 Kent Comm. (12th ed.) 137, 
 n. c.\ Story v. Livingston, 11 Pet. 351; La. 
 Rev. Civ. Code (1870), arts. 3133-3135 
 and arts. 3176-3181. 
 
 It is specially provided that the credi- 
 tor shall not become the owner of the 
 pledged immovable by reason of the 
 debtor's failure to pay the debt at the 
 stated time, and that any clause to the 
 contrary is void. Rev. Civ. Code, art. 
 3179; Livingston v. Story, ii Pet. 351. 
 
 In Livingston v. Story, 11 Peters (U.S.), 
 351, it was held that an absolute convey- 
 ance of land by a debtor to a creditor 
 to secure a debt, accompanied by a coun- 
 ter-letter by the creditor, agreeing to re- 
 convey on payment of the debt, and, in 
 case of default, to sell premises at auc- 
 tion and account to the debtor for the 
 price, the creditor to take immediate pos- 
 session under the sale, was not a condi- 
 tional sale (venie it remire), because the 
 title of the creditor was not absolute on 
 default by the debtor, but he was bound 
 to sell at auction and account for pro- 
 ceeds; that the transaction was not a 
 mortgage under the Louisiana law, since 
 possession was given to the creditor, and 
 that therefore, by exclusion, it must be 
 construed an antichresis, or pledge of re- 
 alty. 
 
 A letter pledging growing crops is not 
 an antichresis, where the creditor has no 
 right to enter and reap the fruits. Ha- 
 gan V. Sompeyrac, 3 La. 154, 157. 
 
 The antichretic pledgee, while bound 
 to make useful and necessary repairs 
 (La. flev. Civ. Code, 3177), may not 
 make unusual improvements. If he do, 
 he cannot reimburse himself their actual 
 
 cost, but only the increased value result- 
 ing therefrom. An antichresis and a 
 mortgage may coexist. Prior to fore- 
 closure, the pledgee is entitled to the 
 fruits. Other creditors may cut off an 
 antichresis by a fi. fa. Pickergill v. 
 Brown, 7 La. Ann. 297. See Rev. Civ., 
 Code, § 3181. 
 
 An agreement to hire a slave until the 
 lessor's debt to the lessee be paid from, 
 the wages stipulated, amounts to an an- 
 tichresis, and must be in writing. Smith 
 V. Tabor, 7 La. Ann. 582. Compare Rev. 
 Civ. Code, § 3135, which provides that 
 the antichresis shall consist in immova- 
 bles. 
 
 Where a slave is antichretically 
 pledged, the owner cannot sue for his 
 wages until the principal debt has been 
 paid. Smith v. Taylor, 14 La. Ann. 663; 
 Rev. Civ. Code, § 3178. 
 
 A counter-letter stipulating that the 
 property sold could not be disposed of 
 by the creditor (purchaser) without the 
 consent of the debtor (vendor), and that 
 the property should revert'as soon as the 
 debt, the sale was intended to secure, 
 was paid, shows a contract of antichresis. 
 Calderwood v. Calderwood, 23 La. Ann. 
 658. 
 
 1. Burrill's Law Dictionary, sui voce. 
 
 2. Thus in a deed of bargain and sale, 
 where the premises conveyed an estate 
 " to the grantees or any of them, their, or 
 any of their. heirs or assigns," and the 
 habendum "to them, their heirs or 
 assigns forever," "any" was construed to 
 mean "each," so as to create a grant of 
 tenancy in common, and not a joint 
 tenancy. Galbraith v. Galbraith, 3 S. & 
 R. (Pa.) 392. 
 
 The word " any" is synonymous with 
 "either;" so an act saying, " any person 
 who shall counterfeit, or utter or attempt 
 to pass, knowing them to be counterfeit, 
 any of the aforesaid gold or silver coins, 
 etc.," means any one of them, that is to 
 say one or more; and an indictment under 
 this act will be sustained by proof of the 
 passing a single dollar, knowing it to be 
 counterfeit. State v. Antonio, 3 Wheel- 
 er's Crim. Law Cases, 508. 
 
 So " any" was construed as " any sin- 
 gle one," where an act had declared that 
 "robbery or larceny of obligations or 
 
 611 
 
ConstructionB, 
 
 AN Y—APAR T— APARTMENT. 
 
 Constructions. 
 
 APART. — Separately in regard to space or company ; in a 
 itate of separation as to place ; aside. ^ 
 
 APARTMENT. — A part of a house ; a room ; one or more 
 rooms in a house, occupied by one or more persons, distinct from 
 other occupants of the same house.** 
 
 bonds, etc., shall be punished in the 
 same manner as robbery or larceny of 
 any goods or chattels;" therefore it was 
 held that the act applied to the robbery 
 or larceny of a single obligation, etc. 
 Com. V. Messinger, i Binney, 273, 276, 
 280, 286. 
 
 The words " any suit," in a statute au- 
 thorizing a person aggrieved to apply for 
 a jury within one year after the final de- 
 termination of any suit wherein the 
 legal effect of the doings of the board of 
 aldermen is drawn in question, embrace 
 such suits only in which the applicant is 
 a party. Shute v. City of Boston, 99 
 Mass. 236. 
 
 So the words " any creditor" have been 
 limited in a composition-deed to those 
 creditors only who were to receive a 
 composition under the deed. Wells v. 
 Greenhill, 5 B. & Aid. 869. 
 
 Where an act limited the jurisdiction 
 of a justice to cases where the amount 
 claimed by " any one creditor" did not 
 exceed fioo; and a creditor obtained 
 three several judgments on three sepa- 
 rate claims of $100 each, accompanied 
 by affidavit and bond to each claim re- 
 spectively, it was held that "any one 
 creditor" meant any one claiming under 
 the same bond and affidavit, and that the 
 justice had jurisdiction. State v. King, 
 5 Ind. 439. 
 
 Any Person or Persons. — For the limi- 
 tation of " any" thus used to persons of 
 a particular class, see U. S. v. Palmer, 
 3 Wheaton (U. S.), 610; Denn v. Gold- 
 trap, Coxe (N. J.), 272; Com. v. Loring, 
 8 Pick. (Mass.) 370. 
 
 So also of things. See Halsey v. 
 Whitney, 4 Mason (U. $.), 206. 227; 
 Pierce v. Richardson, 9 Mete. (Mass.) 6g. 
 
 For cases in which "any" has been 
 given by the courts the full force of " all " 
 or " every" in its widest extent, see Lo- 
 gan V. Small, 43 Mo. 254; Overseers of 
 Township of Manchester v. Guardians 
 of St. Pancras, L. R. 4 Q. B. Div. 409; 
 McMurray v. Brown, i Otto (U. S.), 257, 
 265; The Collector v. Hubbard, 12 Wal- 
 lace (U. S.), i; Wilmot v. Rose, 3 El. & 
 Bl. 563; McComas v. Amos, 29 Md. 132, 
 14:; Mayor of Liverpool v. Tomlinson, 
 7 Dowl. & Ry. 556; Heaton v. Wright, 
 10 How. Pr. (N. Y.) 79, 83; Tillo'n v. 
 Britton, 3 Halstead, (N.' J.), 120, 128; 
 Livermore v. Swasey, 7 Mass. 212, 227. 
 
 1. Web. Diet. 
 
 Living Apart. — A husband is not " liv- 
 ing apart " from his wife within the 
 meaning of a statute dispensing with his 
 joining in a conveyance under certain 
 circumstances, when he is only tempo- 
 rarily absent in pursuit ' of his ordinary 
 calling, as in the case of a seaman. Ex 
 parte Gilmore, 3 C. B. 967. 
 
 Nor when the circumstances of his go, 
 ing away are not such as to warrant a 
 belief that he has no intention of coming 
 back. In re Emma, 17 C. B. 176. 
 
 Apart from her Husband. — In an act 
 providing that the acknowledgment of <t 
 married woman should be taken " on a 
 private examination apart from her hus- 
 band," it was held that the above clause 
 did not exclude the presence of other 
 persons than the husband, as the latter 
 words qualified and explained the former 
 ones, the omission of which from an ac- 
 knowledgment did not invalidate it. Den 
 •V. Geiger, 4 Halst. (N. J.) 225. 
 
 2. Bur. L. Diet.; Rap. & Lawr. L. 
 Diet. 
 
 Apartment — What is an. — Where one 
 occupied a part of a house, having a key 
 to the outer door, the landlord not resid- 
 ing in or occupying any portion of the 
 premises; held, that the portion occupied 
 .was rightly described as " apartments." 
 Score V. Huggett, 7 Man. & G. 95. 
 
 Where a house originally entire is di- 
 vided into distinct partitions to which dis- 
 tinct avenues are allotted so that the sev- 
 eral inhabitants have no communication 
 with each other, they are occupiers of 
 " separate apartments," and are ratable 
 to the parish as inhabitants. Tracy v. 
 Talbot, 6 Mod. 214. 
 
 Apartment — What is not an. — A small 
 building on the same lot with a dwelling- 
 house, at the distance of forty-five rods 
 from it, with a lane or open passage-way 
 between them, is not an ' ' apartment " of 
 the dwelling-house, though -one person 
 occupies the lot on which both are. Com. 
 V. Estabrook, 10 Pick. (Mass.) 293. 
 
 "Apartments" in a lease. — By the 
 lease of "apartments" in a house the 
 lessee takes no interest in the land inde- 
 pendent of and distinguishable from the 
 apartments rented, and only sucl^ as is 
 involved in the enjoyment thereof. Mc- 
 Millan V. Solomon, 42 Ala. 356. 
 
 "Apartment" in an Indictment. — On 
 
 613 
 
'ConstniotionB. 
 
 APEX. 
 
 Constructions. 
 
 APEX. — The summit or highest point of anything ; the top.^ 
 
 an indictment for burglary in entering 
 the "house, room, apartment, and tene- 
 ment of A," he being shown to be a 
 lodger, and renting his room from one 
 who was tenant and lessee of the whole 
 house; held, that there was no variance 
 between the allegations and proofs. Peo- 
 ple V. St. Clair, 38 Cal. 137. 
 
 " Apartment " of a Prison. — An in- 
 closed prison-yard containing the only 
 necessary house for the accommodation of 
 prisoners is not an "apartment" of the 
 prison, unless it has been assigned as 
 such. M'Lellan v. Dalton, 10 Mass. 
 J90. Cf. Partridge u. Emerson, 9 Mass. 
 122. 
 
 1. Mine.^For a full discussion of the 
 tneaaing of this word as used in the U. 
 S. statute- (Rev. St. U. S. § 910) in regard 
 to a mining claim, see Duggan v. Davey, 
 26 N. W. Repr. 887. The court said: 
 " The definition of the top or apex of a 
 vein usually given is ' the end or edge 
 of a vein nearest the surface;' and to 
 this definition the defendants insist we 
 must adhere with absolute, literal, and ex- 
 clusive strictness, so that wherever, un- 
 der any circumstances, an edge of a vein 
 can be found at any surface, regardless 
 of all other circumstances, that is to be 
 considered as the top or apex of the vein. 
 The extent to which this view was car- 
 ried by the defendants, and, I must con- 
 fess, its logical results, were exhibited by 
 Prof. Dickerman, their engineer, who, 
 replying to an inquiry as to what would 
 be the apex of a vein cropping out at an 
 angle of i deg. from the vertical, on a 
 perpendicular hillside, and cropping out 
 also at a right angle with that along the 
 level summit of the hill, stated that in his 
 opinion the whole line of that outcrop, 
 from the bottom clear over the hill as far 
 aa it extended, would be the apex of the 
 vein. Some other witnesses had a simi- 
 lar opinion. The definition given is no 
 doubt correct under most circumstances, 
 but, like niany other definitions, is found 
 to lack fulness and accuracy in special 
 cases; and I do not think important 
 questions of law are to be determined by 
 a slavish adherence to this letter of an 
 arbitrary definition. It is indeed difficult 
 to see how any serious question could 
 have arisen as to the practical meaning 
 of the terms 'top' or 'apex,' but it 
 seems in fact to have become somewhat 
 clouded. I apprehend if any intelligent 
 person were asked to point out the top 
 or apex of a house, a spire, a tree, or 
 hill, he would have no difficulty in doing 
 so, and I do not see why the same com- 
 
 mon-sense should not be applied to a 
 vein or lode. Statutory words are to re- 
 ceive their ordinary interpretation, ex- 
 cept where shown to have a special 
 meaning; and, as I think the testimony 
 shows that these terms were unknown to 
 miners in their application to veins be- 
 fore the statute, the ordinary rule would 
 seem to apply to them. 
 
 "Justice Goddard, a jurist of experi- 
 ence in mining law, in his charge to the 
 jury in the case df Iron Silver v. Louis- 
 ville, defines ' top ' or ' apex ' as the 
 highest or terminal point of a vein 
 ' where it approaches nearest the surface 
 of the earth, and where it is broken on 
 its edge, so as to appear to be the begin- 
 ning or end of the vein.' Chief Justice 
 Beatty, of Nevada, who is mentioned in 
 the report of the public lands commission- 
 of 1879-80 as ' one of the ablest jurists 
 who has administered the mining law,' 
 in his letter to that commission says, 
 after defining dip and course of strike; 
 ' The top or apex of any part of a vein 
 is found by following the line of its dip 
 up to the highest point at which vein 
 matter exists in the fissure. According 
 to this definition, the top or apex of a 
 vein is the highest part of a vein along 
 its entire course. If the vein is supposed 
 to be divided into sections by vertical 
 planes, at right angles to the strike, the 
 top or apex of each section is the highest 
 part of the vein between the planes that 
 bound that section; but if the dividing 
 planes are not vertical, or not at right 
 angles to a vein which departs at all 
 from a perpendicular in its downward 
 course, then the highest part of the vein 
 between such planes will not be the top 
 or apex of the section which they in- 
 clude.' Report Pub. Lands Com. 399. 
 
 " I am aware that in several adjudged 
 cases ' top ' or ' apex ' and ' outcrop ' 
 have been treated as synonymous, but 
 never, so far as I am aware, with refer- 
 ence to a case presenting the same feat- 
 ures as the present. The word ' apex ' 
 t>rdinarily designates a point, and so con- 
 sidered the apex of a vein is the summit; 
 the highest point in the vein in the as- 
 cent along the line of its dip or down- 
 ward course, and beyond which the vein 
 extends no further, so that it is the end, 
 or, reversely, the beginning, of the vein. 
 The word ' top,' while including ' apex,' 
 may also include a succession of points, 
 — that is, a line, — so that by the ' top ' of 
 a vein would be meant the line connect- 
 ing a succession of such highest points 
 or apices, thus forming an edge. 
 
 I C. of L. — 40 
 
 613 
 
Constructions, 
 
 APEX—APPARA TUS. 
 
 Constructions. 
 
 APPARATUS. — A collection or combination of means for the 
 accomplishment of some purpose ; a complete set of utensils or 
 instruments for performing any operation or business. ^ 
 
 "I have spoken of the 'dip' or 
 ' downward course ' of the vein, treating 
 these words as synonymous, and so I 
 think they must be regarded. ' Dip ' and 
 ' depth ' are of-the same origin, — ' dip ' is 
 the direction or inclination towards the 
 'depth,' — and it is 'throughout their 
 depth ' that veins may be followed, and 
 that is surely their flownward course. 
 Mr. Riotte gives us a different definition. 
 He says: 'Starting any line upon the 
 apex of the vein, and running down upon 
 the vein parallel to the end lines (of the 
 location), the inclination that line hafe is 
 the downward course of the vein.' And 
 when asked: ' So that the direction of 
 the end lines of a mining location abso- 
 lutely fixes the direction of the downward 
 course of the vein ?' he replies: ' As far 
 as it interests the man who has located 
 that claim.' Elsewhere he says that, in 
 his view of the law, end lines or locations 
 are, as he expresses it, 'swingable,' so 
 that when the locator determines the di- 
 rection of his ore chutes he-may swing 
 his end lines parallel to them, so as to 
 take them in throughout their depth. A 
 very little reflection will show .that, if 
 this be the law, a locator, instead of be- 
 ing limited to 1500 feet along the vein, 
 could readily place his end lines at such 
 an angle as practically to control nearly 
 3000 feet of the vein. With all proper 
 respect for this gentleman's opinion, I 
 cannot accept his views upon this subject 
 at all. I think it clear that the law in- 
 tended these lines to be laid substantially 
 at right angles to the general coui;se or 
 strike of the vein, since in no other way 
 could the locator be limited to a given 
 length along the ledge. 
 
 "This seems to have been the view 
 taken of the law by the three learned 
 judges who sat in the Richmond-Eureka 
 case. It is true that they hold that the pro- 
 visions of the law of t 872 requiring parallel 
 end lines may be regarded as merely di' 
 rectory, so that a failure to so lay them 
 would not invalidate the location; but I 
 think the whole force of the observations 
 of the court upon this point lies in their 
 assumption that it makes no difference 
 how the miner may choose to locate his 
 end lines, since the law limits his right 
 to that section of the lode or ledge 
 carved out by vertical planes Srawn 
 through the extreme points or ends of 
 his line of location at right angles with a 
 line representing the general course or 
 
 strike of the lode. In this same case, on 
 appeal to the supreme court of the Unit- 
 ed States (103 U. S. 844) the fact is noted 
 that the 'zone,' as it is called, dips at 
 right angles to its course or strike, and 
 that the extension downwards of the 
 comproniise line, which was coincident 
 with the end lines of the adjacent claims, 
 , followed the dip of the zone. 
 
 "I have been led into some digression 
 from the strict line of my argument. 
 Bearing in mind the descriptions hereto- 
 fore given of the two lines of outcrop on 
 Custer hill, if we might suppose that the 
 outcrop along the northerly face were 
 nearly vertical, I do not see how it could 
 be seriously contended that such out- 
 crop, under the circumstances, consti- 
 tuted the top or apex of this stratum of 
 quartzite. Such a conclusion could only 
 be reached, it seems to me, by shutting 
 one's eyes to every feature of the case, 
 except the one fact that there was an 
 edge at or near the surface, which was 
 therefore the top or apex of the vein. 
 This I cannot do without such a violation 
 of the ordinary use of words, and, with 
 all the respect and deference which I feel 
 for the opinions of the learned counsel 
 for the defence, I must say without such 
 a transgression of the dictates of a sound 
 common sense view of the situation, as, 
 in my judgment, the statute does not 
 contemplate. Nor can I see that there 
 would be any difference whatever in the 
 principle were this outcrop to be found 
 at an angle of 45 deg., or, as it is, at an 
 angle of about 8 deg. from the horizon- 
 tal. I am compelled therefore, to hold 
 that this outcrop found in the Sitting 
 Bull location is not the top or apex of 
 this vein, lode, or ledge, and that such 
 top or apex is not within that location. 
 I must regard that outcrop as merely an 
 exposure of the edge of the vein on the 
 line of its dip." 
 
 1. Wore. Diet. 
 
 Apparatus of Gaming. — Game-cocks are 
 not " apparatus or implements of gam- 
 ing." Implements were defined as 
 "things necessary in any trade or mys- 
 tery without which the work cannot be 
 performed; also the furniture of a house, 
 as all household goods, implements, etc. 
 And implements of household are tables, 
 presses, bedsteads, and the like." " It 
 does not appear that it has ever been 
 used to denote animals or beings having 
 life. . . . The words ' implements ' and 
 
 614 
 
Constructions, 
 
 APPAHA TUS— APPARENT. 
 
 Construotions. 
 
 APPAREL. See WEARING Apparel. 
 
 APPARENT. — What seems to exist or is indicated by appear- 
 ances^ ; also manifest, evident, proved ; what is regularly before 
 the court.** 
 
 ■ apparatus ' have the same meaning and 
 are so defined. No one, we apprehend, 
 ever did or ever would call a living ani- 
 mal an apparatus." Coolidge v. Choate, 
 II Mete. (Mass.) 79. 
 
 Billiard-tables were held not to be 
 "gaming apparatus " within the meaning 
 of one penal statute, as they were ex- 
 pressly named in another similar statute. 
 State V. Hope, 15 Ind. 474. 
 
 Necessary Apparatus. — In a lease of 
 a paper-mill in which the lessors cove- 
 nanted to furnish "all necessary appara- 
 tus," held, that those words meant, not 
 such articles of necessary apparatus as 
 were at the mill at the date of the lease, 
 but "all apparatus which might become 
 necessary for manufacturing paper accord- 
 ing to the ordinary process usually 
 adopted by conductors of such establish- 
 ments, and that all such apparatus, 
 whether at the mill or not at the date of 
 the contract, was included in the lease." 
 Patteson v. Garret, 7 J. J. Marsh. (Ky.) 
 112. 
 
 1. Johnson v. State, 5 Tex. App. 433. 
 
 2. Burr. Law Diet. 
 
 Apparent Ownership was defined to be 
 eqtiivalent to "pnma-facie ownership" 
 in State Bank v. Hastings, 15 Wis. 84. 
 
 Apparent Possession. — The Bill of Sales 
 Act, 17 and 18 Vict., c. 36, s. i. provides 
 that ' ' personal chattels shall be deemed 
 to be in the apparent possession of the 
 person making or giving the bill of sale 
 so long as they shall remain or be in any 
 house ... or other premises occupied 
 by him or as they shall be used in and 
 enjoyed by him in any place whatsoever, 
 notwithstanding that formal possession 
 thereof may have been taken by or given 
 to any other person. " The grantor of a 
 bill of sale being tenant of rooms in 
 which the goods were placed, but residing 
 elsewhere, having made default in pay- 
 ing the sum secured, gave the keys to 
 the grantee, who opened the doors and 
 put his name on some of the goods, 
 though without removing them. Held, 
 that the goods had ceased to be in the 
 ' ' apparent possession " of the grantor, 
 and that 'the bill of sale was valid as 
 against his Sxecution creditor. Robinson 
 V. Briggs, L. R. 6 Ex. i. See also 
 Gough V. Everard, 2 H. & C. i. 
 
 Where goods in the house of a trader, 
 but not belonging to him, were levied 
 upon by the sheriff under z.fi.fa. against 
 
 the trader, held, that this did not disturb 
 the " apparent possession" of the trader, 
 subsequently declared a bankrupt, so 
 that they might be sold by his assignees 
 as against the true owner. Barrow v. 
 Bell, 5 El. & Bl. 540. 
 
 Apparent Sanger. — " Apparent dan- 
 ger " of a kind to justify "homicide by way- 
 of self-defence is such overt, actual 
 demonstration by conduct and acts of a 
 design to take life, or do some great per- 
 sonal injury, as would make the killing, 
 apparently necessary to self-preservation. 
 Evans v. State, 44 Miss. 773; 
 
 Apparent Intention. — It was provided 
 by statute that " though a homicide may 
 take place under circumstances showing 
 no deliberation, yet if a person guilty 
 thereof provoked a contest with the ap- 
 parent intention of killing or doing seri- 
 ous bodily injury to deceased, the offence 
 does not come within the degree of man- 
 slaughter." Held, \.\ia.\. "apparent dan- 
 ger" meant what was " manifest, beyond 
 doubt, obvious," as distinguished from 
 the popular meaning signifying "that 
 which seems to exist or is indicated by 
 appearances, rather than that which is 
 real or actual." Johnson v. State, 5 Tex. 
 App. 423. 
 
 Apparent Easements — Apparent Signs. 
 — Apparent or continuous easements 
 are those depending upon some arti- 
 ficial structure upon, or natural forma- 
 tion of, the servient tenement, obvious 
 and permanent, which constitutes the 
 easement or is the means of enjoying it; 
 as the bed of a running stream, an over- 
 hanging roof, a pipe for conveying 
 water, a drain or a sewer. Fetters v. 
 Humphreys, 3 C. E. Green (N. J.), 262. 
 
 Where the defendant was not aware of 
 the existence of a drain running under 
 his house at the time it was conveyed to 
 him, and urged that there could be no 
 implied agreement unless the easement 
 were "apparent and continuous," held, 
 that he must have known or ought to 
 have known that some drainage then 
 existed, and if he had inquired he would 
 have known of this drain; and that by 
 "apparent signs" must be understood 
 not only those which must necessarily 
 be seen, but those which may be seen 
 or known on a careful inspection by a 
 person ordinarily conversant with the 
 subject. Pyer v. Carter, i H. & N. 
 916. 
 
 615 
 
Constructions. 
 
 APPARENT— APPEAL. 
 
 CivU. 
 
 APPARENT HEIR. See Heir Apparent. 
 AVT^AL. (See also Writ of Error.) 
 
 I. CiviV. 
 
 Generally. 
 
 When it Lies. 
 By whom. Taken. 
 Amount. 
 
 Time. 
 Notice. 
 
 Waiver. 
 
 Effect. 
 Record. 
 
 What is Open, 
 Practice. 
 Dismissal. 
 
 Judgment. 
 
 2. Criminal. 
 
 3. Legislative. 
 
 [In its modern sense from appellatio, Lat.; appeller, Fr. (Co. Lit. 
 278 b.); in criminal proceedings from the Norman-French apel, 
 appeler, to accuse (Brit. 38 b).] 
 
 1. Civil. — The removal of a cause from an inferior to a superior 
 court.* It was a civil-law proceeding in its origin,® and was intro- 
 duced therefrom into equity, admiralty, and ecclesiastical proceed- 
 ings, to which it is chiefly confined,^ and from thence by statute 
 hito our common-law proceedings, and to which it was originally 
 unknown.* In order, therefore, that an appeal may be sustained 
 the right of the party to appeal must clearly appear,* and it is 
 •consequently lost by any failure to comply with the statutory regu- 
 lations.® Appeals are distinguished from writs of error in that 
 
 " Apparent Good Order" in Bills of Lad- 
 ing. — Where in a bill of lading it is ad- 
 mitted that goods were shipped or re- 
 'ceived in "apparent good order, " the word 
 "' apparent " does not change the legal ef- 
 fect of the bill of lading. The receipt and 
 giving of the bill are piima facie evidence 
 that the goods were in good order, but 
 in any case the admission is limited to 
 the external or apparent condition of the 
 package, so far as the same is open to 
 ordinary observation. Therefore the 
 ■carrier is not concluded from showing 
 that a loss occurring proceeded from 
 some latent cause or secret defect in the 
 package, though the burden of proof 
 Js on him to show that they were not in 
 fact in good order. The Oriflamme, i 
 Sawy. (U. S.) 176. See also The Cali- 
 fornia, 2 Sawy.' (U. S.) 12; Blade v. Chi- 
 cago, etc., R. Co., 10 Wis. 4. 
 
 "Apparent Violation" of a Bule of 
 'Court. — In a rule of court declaring that 
 '" where more than one count, etc., shall 
 have been used in apparent violation of 
 the preceding rule " which prohibited 
 their use when founded on more than one 
 subject-Matter, held, that the words "ap- 
 parent violation " meant that " two things 
 appear to be the same, whether they are 
 so or not. . . . That if the two counts 
 be such that any person conversant with 
 pleading, looking at them, would say 
 (that thev are founded on the same sub- 
 
 616 
 
 ject-matter of complaint, the fifth rule is 
 violated." Ramsden v. Gray, 7 C. B. 
 967. See Temple v. Keily, i M. & G. 904. 
 
 1. 4 Bl. Com. 312; 3 Dall. 321; 7 
 Cranch, no. 
 
 2. 3 Dall. 321; 7 Cranch, io8; The San 
 Pedro, 2 Wheat. (U. S.) 132. 
 
 3. U. S. V. Wonson, i Gall. (U. S. C. 
 Cts.) 5, 12. 
 
 4. Ohio & Mississippi R. Co. v. Lau- 
 rence Co., 27 111. 50; Mr. Justice Breese 
 in Hammond v. The People, 32 111. 464. 
 
 "Appeals are allowed by statute, and 
 can be had in no case unless so allowed. 
 Writs of error are writs of right of, and 
 cannot be refused in any civil case. It 
 may be well said, an appeal will not lie 
 in a given case because there is no stat- 
 ute allowing it." State v. Meeker, ig 
 Neb. 444. 
 
 5. The Schooner Constitution v. Wood- 
 worth, I Scain.(Ill.)5ii; Street !<. Francis, 
 3 Ham. (Ohio) 277; Wetherbee v. Johnson 
 et al., 14 Mass. 420. 
 
 Nor will the consent of the parties in 
 interest give any jurisdiction on appeal. 
 Sampson et al. v. Welsh et al.^ 24 How. 
 207; Mills etal. v. Brown et al,, 16 Peters, 
 521. 
 
 6. Beardsley, J., in Ladow v. Groom, i 
 Denio, 429. 
 
 " Nothing which was done by the com- 
 missioner who allowed the appeal or by 
 the justice could make the appeal legal 
 
Ciyil. 
 
 APPEAL. 
 
 Wlien it Lies. 
 
 the former subject both the facts and the law to a re-examination, 
 while the latter is confined to a re-examination or review of ques- 
 tions of law.i 
 
 When it Lies. — An appeal lies only from a final judgment* or 
 
 without complying substantially with the 
 requirenients of the statute." McNay v. 
 Stration, 109 III. 30. See also Time. 
 
 1. 3 Dall. 321; 7 Cranch, no; Dean v. 
 Mason etal., 20 How. 198. 
 
 2. Frederick v. Connecticut Savings 
 Bank et al., 106 111. 147; Porter v. Det- 
 erly, l S. & M. (Miss.) 163; Lamphear v. 
 Lamprey, 4 Mass. 107; International 
 Bank f/ a/, v. Jenkins ^? a/., 109 111. 2ig; 
 McCollum V. Eager, 2 How. 61; Walker 
 4/. Spencer, 86 N. Y. 162. 
 
 In Logan v. Harris, 90 N. Car. 7, Judge 
 Merrimon, in delivering the opinion of 
 the court, said, in speaking of an appeal, 
 " The entry of a judgment on the record 
 is essential to its completeness and eiS- 
 ciency. It is this that gives it life and 
 certainty, and perpetuates it as an estab- 
 lished memorial. It is not sufficient that 
 the court had taken its resolution as to 
 what judgment it would enter: this is 
 only in the mind of the judge. To make 
 his purpose a judgment, it must be en- 
 tered of record, and until this shall be 
 done, there is nothing to appeal from. 
 ... It is probable that in this case the 
 court intended to enter a judgment, and 
 the parties and their counsel so under- 
 stood, but what judgment, does not ap- 
 pear; nor is there any minute from which 
 we can ascertain what it was intended to 
 be. It is said in the case upon appeal 
 there was 'judgment,' but none appears 
 in the record proper." 
 
 As to what Constitutes a Final Decree. 
 — "As we have had occasion to say at 
 the present term in Bostwick v. Brinker- 
 hoff, 106 U. S. 3, and Grant v. Phoenix 
 Insurance Co., 106 U. S. 429, a decree is 
 final for the purposes of an appeal to 
 this court when it terminates the litiga- 
 tion between the parties on the merits of 
 the case, and leaves nothing to be done 
 but to enforce by execution what has 
 been determined." Mr. Ch. J. Waite in 
 St. Louis, I. M. & P. R. Co. v. Southern 
 Express Co., 108 U. S. 24. 
 
 A decree which adjudges costs and 
 awards execution. Mo., K. & T. R. Co. 
 V. Dinsmore, 108 U. S. 30. 
 
 Or which settles all the equities between 
 the parties. Hastie & Silver v. Aiken et 
 al., 67 Ala. 313; Thompson et al. v. 
 Brooks et al., 76 Va. 160. 
 
 As for instance, a refusal to grant a de- 
 cree to restrain the foreclosure by a mort- 
 gagee on a fraudulent conveyance of real 
 
 estate on petition of assignee in bank- 
 ruptcy. Ex parte Norton, 108 U. S. 237. 
 
 Or a decree enjoining the sale of real 
 estate. Richards & Merrill v. Coon, 13 
 Neb. 419. 
 
 Or an order of sale in partition. Flie- 
 nor et al.- v. Driskill et al., 97 Ind. 27. 
 
 Or an order to pay costs. Cleveland 
 et al. V. Burnham, 60 Wis. 16. 
 
 Or an order dismissing for want of 
 jurisdiction. Ross v. Evans, 30 Minn. 
 206. 
 
 Or an order assuming jurisdiction. 
 Curran v. Excelsior Coal Co., 63 Iowa, 94. 
 
 Or dismissal of a rule to show cause 
 why a writ of prohibition should not be 
 granted. Singer Mfg. Co. v. Spratt, 20 
 Fla. 122. Contra, People ex rel. v. West- 
 brook et al., 89 N. Y. 152. 
 
 Or orders after final judgment. I. M. 
 B. A. V. Superior Court, 65 Cal. 506. 
 
 Or a decree fixing compensation of 
 trustees. Williams et al. v. Morgan etal.y 
 III U. S. 684. 
 
 Or any judicial act. In re Applica- 
 tion of Cooper, 22 N. Y. 67. 
 
 As an order suspending a jailer in the 
 discharge of his duty. Lowe v. Com- 
 monwealth, 3 Met. (Ky.) 237. 
 
 Or the rejection of a collector's bond. 
 Ex parte Lowman, 42 Ark. 37. 
 
 When the appointment of a receiver 
 takes from an administrator the manage- 
 ment and custody of property. Perrin 
 ■V. Lepper, 56 Mich. 351. 
 
 Cooley, Ch. J., said, in delivering the 
 opinion in this case, "The order appoint- 
 ing a receiver in this cause took from the 
 complainant the entire custody and man- 
 agement of the property of the estate of 
 Horace J. Perrin, of which he was ad- 
 ministrator, and transferred it to the per- 
 son appointed, who was a stranger to 
 that estate. It was thei-efore appealable 
 within the decision in Barry v. Briggs, 22 
 Mich. 201. 
 
 And many other cases decided by this 
 court. See particularly Port Huron, etc., 
 R. Co. V. Jones, 33 Mich. 303; Taylor v. 
 Sweet, 40 Mich. 736; Morey ». Grant, 48 
 Mich. 330. 
 
 It would be a serious reproach to the 
 law if a litigant could be thus summarily 
 divested of his legal possession and ex- 
 cluded from it pending what might be a 
 long litigation, with no redress whatever 
 except in future restoration, when per- 
 haps it had been demonstrated that the 
 
 617 
 
Civil. 
 
 APPEAL. 
 
 When it Lies. 
 
 some decree affecting substantial rights and equivalent thereto.^ 
 It does not lie from a mere interlocutory or provisional judgment.* 
 unless expressly authorized by statute ;' consequently an appeal 
 
 original exclusion was unwarranted. But 
 we have said enough in the cases above 
 cited to show that the law is not subject 
 to this reproach." 
 
 Or any order as to a receivership 
 which determines a question of right be- 
 tween the parties to the suit and directs 
 the statement of an account upon the 
 principles of such determination. Reeder 
 •V. Machen & Mason, Receivers, 57 Md.56. 
 
 A refusal to strike off a judgment en- 
 tered on Sunday and make proper entry 
 thereof is such a final judgment as will 
 support an appeal. Ecker v. First Na- 
 tional Bank, 62 Md. jig. 
 
 Or the rejection of a final report. /« 
 re Town of Clinton, 52 Conn. 5. 
 
 Or a decree of the court below granting 
 or refusing a review. Kupfer v. Force, 
 86 Ind. 81. 
 
 Or an order on the sheriff to pay over 
 money. Coykendall v. Way, 29 Minn. 
 162. 
 
 Or any distribution of property. Sa- 
 vannah V. Jesup, 106 U. S. 563. 
 
 Or an order setting aside an award. 
 Garitee v. Carter, 16 Md. 309. 
 
 Or an order appointing a guardian. 
 Pote's Appeal, 106 Pa. 574. 
 
 1. Peeper v. Peeper et al., 57 Wis. 507. 
 Orders affecting substantial rights are 
 
 res adjudicata. Spitley v. Frost, 15 Fed. 
 Rep. 299; In re Estate of Ten Eyck, 36 
 Hun, 575. 
 
 2. An appeal will not lie from amotion 
 overruling a motion to quash a writ of 
 error coram nobis. Bridendolph v. Yeller's 
 Exrs., 3 Md. 325. 
 
 Nor from an interlocutory judgment to 
 a demurrer. Griffee v. Mann et al., 62 
 Md. 248. 
 
 As an order overruling a demurrer. 
 Kirchner'z/. Wood et al., 48 Mich. 199. 
 
 Nor the appointment of a receiver in 
 an action of partition. Emeric v. Al- 
 vardo, 64 Cal. 529. 
 
 Nor of a railroad. Kansas R. M. Co. 
 ■V. A., T. & S. r6 R. Co., 31 Kan. 90. 
 
 Nor that property be delivered to a 
 receiver pending litigation. Forgay et 
 al. V. Conrad, 6 How. 201; Donaldson- 
 ville V. Ascension Police Jury, 33 La. 
 Ann. 248. 
 
 Nor an order for striking out redundant 
 matter as it does not affect substantial 
 rights. Carpenter v. Reynolds, 58 Wis. 
 666. 
 
 Nor an order for judgment. Macrievin 
 V. Macrievin, 63 Cal. 186. 
 
 Nor a decree in favor of plaintiff for 
 
 title and possession of land and improve- 
 ments and ordering a reference to a 
 master. Fitzpairick v. Phillips,- 106 U. 
 S. 429, 
 
 Nor an order affirming part of a decree 
 and revei-sing part of it in the interme- 
 diate court. International et al. v. Jen- 
 kins et al., 109 111. 219. 
 
 Nor a judgment of such intermediate 
 court remanding the cause to the lower 
 court. BoUes v. Stockman, 42 Ohio St. 
 445. 
 
 Nor the refusal of judge to grant a 
 license. Malrtin & Milliken v. Probate 
 Judge, 32 Kan. 146. 
 
 Nor for setting aside a judgment. Ray 
 et al. V, Northup, 55 Wis. 396. 
 
 Nor for a refusal to modify the terms 
 of a reference. Attorney-General v. Con- 
 tinental Life Ins. Co., go N. Y. 45. 
 
 Nor a refusal to allow amendments. 
 Wiggins V. McCoy, 87 N. Car. 499; Den- 
 nis V. Snell, 50 N. Y. Sup. Ct. 95; New 
 York Ice Co. v. Northwestern Ins. Co. 
 23 N. Y. 357. Comstock, Ch. J., in de- 
 livering the opinion of the court, said, 
 inter alia : " I am of opinion that the 
 supreme court had no right to entertain 
 the, appeal at all from the order of the 
 special term. That order, in its sub- 
 stance and nature, simply allowed a 
 pleading to be amended in furtherance of 
 the justice of the case. Such orders rest 
 in the discretion of the court which makes 
 them. They involve no substantial right, 
 and they are not reviewable on appeal." 
 
 Nor for an order granting a continu- 
 ance. Read v. Gooding, Mull & Co., 20 
 Fla. 773; Wilson v. City of Wheeling, 
 19 West. Va. 323. 
 
 For "a motion for a continuance is 
 addressed to the sound discretion of the 
 court under all the circumstances of the 
 case, and although an appellate court 
 will supervise the action of the court on 
 such a motion, it will not reverse a judg- 
 ment on that ground, unless such action 
 is plainly erroneous." Haymond, J., in 
 the last-cited case. 
 
 Nor in cases of habeas corpus. In re 
 Coston, 23 Md. 27; Weddington ^/ a/, v. 
 Sam Sloan, 15 B. Mon. (Ky.) 147. 
 
 Except when authorized by statute. 
 Doyle V. The Commonwealth, 107 Pa. 20. 
 
 Nor would an appeal lie, it would seem, 
 in New York, without the decision of the 
 full bench of the court below. People 
 ex rel, v. The Marine Ct., 2 Abbt. Pr. 126. 
 
 3. Hilliard on New Trials, chap. xxi. 
 §37. 
 
 618 
 
«ivil. 
 
 APPEAL. 
 
 By Whom Taken. 
 
 •cannot be taken from any order or decree within the discretion of 
 the court making it,^ or where the court below has in view a 
 further disposition of the cause.* They are more frequently given 
 to the party aggrieved by the decisions of courts of probate or 
 justices of the peace. In such cases the statute fixes the amount 
 or determines the particular subject-matter in litigation in regard 
 to which an appeal may be taken. ^ 
 
 By Whom Taken. — An appeal can only be taken by those parties 
 affected by the decree or judgment,* or whose substantial rights 
 are prejudiced thereby,^ but all such parties must be joined in the 
 appeal.* 
 
 Amount. — When the jurisdiction of the appellate tribunal de- 
 pends on the amount in controversy, it must be tested by the 
 ■actual sum laid in the pleadings, exclusive of costs,*" or in other 
 
 Statutes have been passed in many of 
 the States designating writs of error, ap- 
 peals; and the effect of this has been that 
 <:ases which are in all but name writs of 
 *rror are put under the title "Appeal" 
 in the United States and the various State 
 digests, thereby causing endless confu- 
 sion. But it has been held in substance 
 that the remedy of appeal furnished by 
 the codes, so far as relates to common- 
 law actions, is a mere substitute for the 
 old writ of error, the change being merely 
 one of name, and that in respect to suits 
 in equity it is identical with the former 
 appeal. Hilliard on New Trials, chap. 
 Appeal, § 2; Bayliss on New Trials and 
 Appeals, p. I. 
 
 1. In re Thirty-fourth Street fN. Y.), 3 
 Central Reptr. 305; Truett v. Rains, 17 
 S. Car. 451; Dows et al. v. Congdon el 
 <il., 28 N. Y. 122; The People v. The N. 
 Y. C. R. Co., 29 N. Y. 418. 
 
 As an order of commitment for con- 
 tempt. Crow V. The State, 24 Tex. 12; 
 Huerstal v. Muir, 62 Cal. 479; State ex 
 rel. V. Giles, 10 Wis. loi; Cars v. Max- 
 well, 20 Fla. 17; A & P. Telegraph Co. 
 V. B. & O. Telegraph Co., 87 N. Y. 355. 
 
 Without the discretion be abused and 
 One of the parties be injured thereby. 
 Market Nat. Bank of N. Y. v. The Pacific 
 Nat. Bank, 102 N. Y. 464; Logan v. Lo- 
 gan, go Ind. 107; Louvais v. Leavitt et 
 al, 53 Mich. 577. 
 
 That a commitment for contempt may 
 be reviewed. Romeyn v. Caplis, 17 
 Mich. 449; Waner v. The State, 13 Lea 
 (Tenn.), 152. 
 
 The taxation of costs by the lower 
 court cannot be reviewed except in a fla- 
 grant case. Miskey's Appeal (Pa.), 3 
 Central Repr. 299. 
 
 2. BoUes V. Stockman, 42 Ohio St. 
 445; Tenby v. Martin, 80 Ky. 463. 
 
 As during the time a motion for a new 
 
 trial is pending. Kenney v. S. &,N. Ala- 
 bama R. Co., 73 Ala. 536. 
 
 Or where an appeal is taken after 
 moving for the alteration of a decree and 
 before its determination. Vincent v. 
 Vincent, 3 Mack. (D. C.) 320. 
 
 Or any issues are pending below. 
 Robinson v. Hall, 35 Hun (N. Y.), 214. 
 
 If, however, substantial rights are de- 
 termined, an appeal will lie. Mackall v. 
 Richards. H2 U. S. 396. 
 
 3. Hilliard on New Trials, § 2, Chap. 
 Appeal. 
 
 4. Montgomery v. Leavenworth, 2 
 Cal. 57. 
 
 But a trustee is not such a party. On 
 the distribution of a fund his commis- 
 sions are not affected. Stewart v. Codd, 
 58 Md. 86. 
 
 5. Comb, etc., v. Jefferson P. D. Co., 
 3 Met. (Ky.) 72; Rowen v. King, 25 Pa. 
 St. 409. 
 
 6. Brewster v. Wakefield, 22 How. 
 118; Clifton V. Sheldon, 23 How. 481; 
 Day et al. v. Washburn et al., 23 How. 
 309; Lovejoy v. Inlan, 17 Md. 525. 
 
 Without the interests can be separated. 
 Knight et al. v. Weiskoff, 20 Fla. 140. 
 
 Or where a decree joint in form is sub- 
 stantially against one. Raub v. Relief 
 Association, 3 Mack. (D. C.) 68. 
 
 Or when some of the parties to the suit 
 below have no interest in maintaining or 
 reversing the decree. Basket v. Hassell, 
 107 U. S. 602. 
 
 7. Bradenberger v. Rigler, 68 Iowa, 
 300. 
 
 Reed, J., in delivering the opinion of 
 the court in Curran f .The Excelsior Coal 
 Co., 64 Iowa, 94, said: "We thmk the 
 costs are not to be included. The ques- 
 tions in controversy between the parties 
 are those put in issue by the pleadings, 
 and the amount in controversy is the 
 sum claimed as damages in the plead- 
 
 619 
 
Civil. 
 
 APPEAL. 
 
 Amounts 
 
 words, the bona-fide claim of the plaintiff,^ and the rule is the same 
 where the judgment in the court below is for an amount less than 
 that over which the appellate court may take jurisdiction.* This 
 right of appeal exists also where the amount of defendant's set- 
 off equals or exceeds that authorizing an appeal.' Nor can it be 
 
 ings. The question in controversy in 
 this case was whether the plaintiff was 
 entitled to recover damages from the de- 
 fendant on account of the wrong of which 
 he complained, and, if so, the amount of 
 that controversy. As an incident of the 
 controversy certain costs are taxed under 
 the statute against the losing party as 
 compensation for the officers who have 
 rendered services in the case, or for wit- 
 nesses who have given testimony in it. 
 But the question as to who shall pay 
 these costs is not the subject of the con- 
 troversy between the parties. The suit 
 is brought and prosecuted for the en- 
 forcement or protection of the right in- 
 volved, or for redress of the wrong com- 
 plained of, and not for the recovery of 
 such costs as may accrue in its prosecu- 
 tion. These, as we have said, are taxed 
 to pay the officers and witnesses. The 
 successful party has no interest in them 
 except in cases where he has advanced 
 the costs. ' 
 
 Ex rel. Seymour v. Judges, etc., 34 
 La. Ann, 1046; Gillespie v. Benson, 18 
 Cal. 409; Zoebler v. Riley, 98 N. Y. 668. 
 
 If the matter before the court is divisi- 
 ble, each of these separate claims must 
 be of itself sufficient in amount to give 
 jurisdiction to the appellate court. Elgin 
 V. "Marshall, 106 U. S. 578; Tupper et 
 al. V. Wise, no U. S. 398; St. Louis 
 Bank v. Stout, 113 U. S. 684. 
 
 But contra, Cummins v. Holmes et 
 al., 107TII. 552, as in case of trustee for 
 the benefit of creditors, where the sepa- 
 rate claims would be insufficient for the 
 appellate court to have jurisdiction. At- 
 kmson v. McCormick, 76 Va. 791. 
 
 1. Interest to the date of judgment 
 may be included in order to give appel- 
 late jurisdiction. The Patapsco, 12 Wall. 
 
 451- 
 
 This decision is not inconsistent with 
 Moore v. Wait, i Ben. (Pa.) 319; Walsh 
 V. Mayer, in U. S. 31J Aymar v. Bour- 
 geois, 36 La. Ann. 392. Contra, Panitt 
 V. Stuart, 5 Ala. 112. The test is, 
 Was it possible for either party to ob- 
 tain judgment equal to or more than 
 the amount giving jurisdiction to the 
 appellate court? Centreville v. Drake, 
 58 Iowa, 564. 
 
 But a merely colorable claim is insuffi- 
 cient. Tower v. Lamb, 6 Mich. 362; and 
 Cox V. Carr, et al., 79 Va. 28. Rich- 
 
 ardson, J., in delivering the opinion, 
 expressed himself as follows: "The 
 well-established rule of this court is that 
 it lias jurisdiction in civil cases with cer- 
 tain exceptions not necessary to be rnen- 
 tioned, where the matter in controversy- 
 exclusive of costs exceeds in value or 
 amount five hundred dollars at the date- 
 of the judgment or decree complained of. 
 This is ascertained by excluding only the- 
 costs. The usual test is, where the plain- 
 tiff sues for money, the amount claimed 
 in his declaration or bill. Gage v. Crock- 
 ett, 27 Gratt. 735. 
 
 By this it must not be understood 
 that the plaintiff by any reckless, un- 
 founded claim* could acquire jurisdiction 
 in this court, especially if, looking to. 
 the whole record, the court can see that 
 the amount claimed is with a view of im- 
 properly acquiring jurisdiction in this 
 court. 
 
 In Fink v. Dering, 75 Va. 667, it is. 
 said: "If the claim is merely colorable 
 in Order to give the court jurisdiction,, 
 and that was made to appear, jurisdictioa 
 would be declined, for jurisdiction can 
 no more be conferred than it can be 
 taken away by improper devices of par- 
 ties." See also Hansborough and Wife 
 V. Stinnett, 22 Gratt. 593. 
 
 2. Downey v. Ferry, 2 Watts (Pa ), 
 304; Walsh V. Mayer, in U. S. 31. 
 Contra, Tower v. Lamb, 6 Mich. 362; 
 Hart V. Funk, 15 Ala. 675; Parsley v. Es- 
 kew, 73 Ind. 558. 
 
 But in this case the defendant has no 
 right to appeal. Cox u. Carr et al., 79, 
 Va. 28. 
 
 3. Smith V. Memphis & Louisville R. 
 Co., 18 Fed. Rep. 304; Thompson v. 
 Butler, 95 U. S. 694; Capen et al. v. De 
 Steiger Glass Co., 105 111. 185; Downey 
 V. Ferry, 2 Watts (Pa.), 304; Prestly v: 
 Ross, II Pa. 411; Church v. French, 54 
 Vt. 420. 
 
 But the amount of the set-off cannot be 
 added to the original claim in order to 
 make an amount sufficient for the appel- 
 late court to take jurisdiction. Fox v. 
 Duncan, 60 Iowa, 321 ; St. Clair v. Day, 
 89 N. Y. 357. Contra, Shriver v. Bowen, 
 57 Ind. 266; Bowles et al. v. Brier et al.,. 
 87 Ind. 391. 
 
 In a Missouri case plaintiff sued for over 
 $2500 (the amount giving a right of ap- 
 peal), but defendant claimed and was al- 
 
 620 
 
Civil. 
 
 APPEAL. 
 
 Time. 
 
 defeated by the plaintiff's remitting to the defendant part of his 
 judgment.^ 
 
 Time. — All appeals must be brought within the time allowed by 
 the statute, or the right will be lost ;** and it is a right which can- 
 
 not be extended by any 
 
 of the parties,^ or by the 
 
 court,* after the time for entering an appeal has elapsed ; nor can 
 the presence of the opposite party in court give any jurisdiction ;* 
 
 lowed a set-off, which reduced plaintiff's 
 judgment below that amount; it was then 
 held that the appellate court had no jur- 
 isdiction. Kerr v. Simmons et al., 82 
 Mo. 269. 
 
 Where defendant tenders part of the 
 claim the sum not tendered is the amount 
 to determine jurisdiction on appeal. 
 Marlow v. Marlow, 56 Iowa, 299; Young 
 V. McWaid, 57 Iowa, loi. 
 
 1. Smith V. Memphis & Little Rock R. 
 Co., 18 Fed. Rep. 304. 
 
 2. Cherry Township v. Marion Town- 
 ship, 96 Pa. 528. In this case it was 
 held that if an appeal be taken to an 
 adjourned or special term of the next 
 term, and the statute required the appeal 
 to be taken to the next term, it 
 came too late. And where there was 
 a failure to affix the seal of the court 
 below before the expiration of the time 
 within which an appeal must be taken, it 
 was held the riglit to appeal was lost. 
 Mason v. Gibson, 13 111. App. 463. 
 
 The bond must be given within the 
 time allowed by statute for taking an ap- 
 peal. Pace V. Ficklin's Exrs. et al., 76 
 Va. 292. 
 
 And under the statutes of some States 
 the clerk's fees must be paid. Loomisz'. 
 McKenzie, ,57 Iowa, 77. 
 
 3. Flory et al. v. Wilson, 83 Ind. 391. 
 The filing of the petition in the court 
 
 below and giving due notice to the clerks 
 of the court and the opposite solicitor is 
 an entry of the appeal, and the. time for 
 filing the transcript may then be extend- 
 ed. Piatt V. Preston, 19 Blatch. 312. 
 
 But the application to extend must be 
 made within the time in which an appeal 
 may be taken. Cook v. Cook, 104 111. 
 98; Patterson v. Stewart, 104 111. 104; 
 Terhune v. Pinkney, et al., 39 N. J. Eq. 
 
 494- 
 
 Where the last day for filmg an appeal 
 is a non-judicial day an appeal taken on 
 the next day is in time. Estate of Rose, 
 63 Cal. 346. 
 
 But that a failure to take an appeal 
 within the proper time may be waived by 
 the action of the adverse party. Sleek 
 V. Kintj, 3 Bar. (Pa.) 211. • 
 
 In Mott V. Ramsay, go N. Car. 372, it 
 was held that the sickness of an attorney 
 
 was a sufficient excuse for want of dili- 
 gence in perfecting an appeal. That the 
 appeal will not be entertained, though 
 the appellant was prevented from per- 
 fecting the appeal by virtue of the death 
 of the appellee. Hopper v. Jones (Md.), 
 3 Central Reporter, 225. 
 
 4. Wait V. Van Allen, 22 N. Y. 319: 
 Westmoreland Co. v. Overseers of Cone- 
 maugh, 34 Pa. 232. 
 
 6. Dowell V. Caruthers, 26 Kan. 720. 
 Valentine, J.: "The only question, then, 
 for us to consider is whether the volun- 
 tary appearance of the defendant in er- 
 ror, plaintiff below in the district court, 
 rendered the appeal of the plaintiff in 
 error, defendant below, valid. No rules 
 with respect to appeals which are merely 
 irregular, but not void, can have any ap- 
 plication to this case. An irregular ap- 
 peal might be rendered good by a volun- 
 tary appearance, and if the appellee does 
 not move to dismiss the appeal within a 
 reasonable time, where the appeal is 
 merely irregular, he will waive all rigljt 
 to make such a motion afterwards; but 
 that is not this case. In this case the 
 appeal was not merely irregular, but it 
 was absolutely void." 
 
 In Michigan it was held in the case of 
 Moore v. Ellis, 18 Mich. 77, that 
 "where a party against whom a 
 decree was made in chancery un- 
 dertook to appeal therefrom, but failed 
 to perfect his appeal within the time lim- 
 ited by law, it was held that no laches of 
 the opposite party in moving to dismiss 
 could preclude his right to have the case 
 dismissed on that ground." The court 
 in that case held that the filing of a bond 
 is a jurisdictional act, and that if no bond 
 is filed no jurisdiction is conferred upon 
 the appellate court. This, we think, is 
 generally true. Of course there are ex- 
 ceptions to this rule. If the plaintiff in 
 this case had gone to trial without mak- 
 ing any motion to dismiss the appeal, 
 and had taken the chances of a finding 
 or verdict in his favor, we do not think 
 that he could then have moved to dismiss 
 the appeal, and he might also by other 
 acts have waived his right to make any 
 such motion; but we do not think that he 
 waived his right to make the motion, or 
 
 631 
 
Civil. 
 
 APPEAL. 
 
 Notice — Waiver. 
 
 but mere irregularities, however, in perfecting an appeal may be 
 waived or amended.^ The statutes of most of the States require 
 appeal to be brought to the next term of the appellate court,''* and 
 if the record is not filed at that time the appeal is said to be aban- 
 doned ;* but if the failure to file the record is due to the delay of 
 the clerk it is not an abandonment.* 
 
 Notice. — The general rule of law requires that the appellee should 
 have notice of an appeal. Where he has actual notice, that is 
 sufficient ; but in other cases there must be an appearance,** or a 
 notice or citation duly served by an authorized person and in 
 proper form, or the appeal may be dismissed.* It is also neces- 
 sary that the notice be sufficiently explicit as to leave no doubt as 
 to the cause to which it is intended to refer.'' 
 
 Waiver. — An appeal is waived on a case stated,* but in ordinary 
 
 that he estopped himself from the motion 
 by a mere voluntary appearance in the 
 court. By making a voluntary appear- 
 ance in the court he simply surrendered 
 to the court jurisdiction of his person, so 
 that the court might have made any 
 order or rendered any judgment with ref- 
 erence to him which would be right 
 under all the circumstances for the court 
 to make or render." 
 
 1. As where the clerk has mislaid 
 papers and delays the case. Whitaker 
 V. Tracy, 41 Ark. 259. 
 
 Or an omission to enter the appeal 
 where it has been taken in open court. 
 Hudgins et al. v. Kemp, Assignee, etc., 
 i8 How. 530. 
 
 Or where, owing to the inability of the 
 judges to be present on return day, the 
 appeal is not entered until the first day 
 after return day on which they are pres- 
 ent. Chaffee & Sons v. Mcintosh, 36 
 La. Ann. 824. 
 
 Or the judge neglects to sign the order. 
 Austin V. Scovill et al., 34 La. Ann. 484. 
 
 Or an agent takes an appeal and neg- 
 lects to file his written authority owing to 
 its loss. Booten ei al. v. Bank of the 
 Empire State, 67 Ga. 358. 
 
 Or any delay caused by the judge. 
 Mcllhaney v. Holland, iii Pa. 634. 
 
 2. Suiter j. Brittle et al., 90 N. Car. 
 19. 
 
 And in such cases an appeal taken to 
 the next term but one is in time where 
 another statute requires that the reasons 
 of the appeal should be filed a certain 
 number of days before the next term, and 
 the first day of that term comes, before 
 the time required by statute for the filing 
 of the reasons has elapsed. McCaffrey 
 V. Doyle, 14 R. L 313; Owens et al. v. 
 Crossett, 104 111. 468. 
 
 3. Edmonson v. Bloomshire, 7 Wall. 
 306. 
 
 4. Laymance v. Laymance, 15 Lea 
 (Tenn ), 476. 
 
 6. The appearance of the opposite party 
 is sufficient proof of the service of the 
 notice of appeal. Libbey v. Mcintosh, 
 60 Iowa, 329. 
 
 6. Alviso V. United States, 5 Wall. (U. 
 S.) 824; O'Kane v. Daly, 63 Cal. 317; 
 Knight et al. v. Wushoff, 20 Fla. 140; 
 Reed v. Allinson, 61 Cal. 461; Mead v. 
 Piatt, 17 Fed. Rep. 509. 
 
 And the notice must show that it was 
 served. Anderson et al. v. Knott, i 
 Idaho, 626. 
 
 But publication in a newspaper may be 
 sufficient under a statute requiring "op- 
 portunity." Morse v. Stockman et al., 
 65 Wis. 36. 
 
 The writ must be properly tested. 
 Joosh V. Elliott, 20 Fla. 924. 
 
 A copy of the notice, however, properly 
 directed and put in the post-office is suf- 
 ficient. Brown v. Green, 65 Cal. 221. 
 
 But it would seem the parties must re- 
 side in separate places under the Califor- 
 nia statute to take advantage of the ser- 
 vice of the notice by post. Cunningham 
 V. Warnekey, 61 Cal. 507. 
 
 A party taking an appeal cannot ob- 
 ject to the solicitor of the appellee being 
 heard on the ground that his client is 
 dead. In re Beckvilie, 90 N. Y. 667. 
 
 But service on a party's attorney is 
 sufficient. Thorson v. St. Paul Fire & 
 Marine Ins. Co., 32 Minn. 434. 
 
 7. Morris v, Brewster et al., 60 Wis. 
 229. 
 
 It cannot be waived by a stipulation of 
 the parties. Deadwood v. Newton et al., 
 2 Dak. 39. 
 
 8. Wellington v. Stratton, 11 Mass. 
 494; Fuller V. Trevor et al., 8 S. & R. 
 
 529- 
 
 Consequently an appeal will not lie 
 from any order made with the consent of 
 
 622 
 
Civil. 
 
 APPEAL. 
 
 Effect— Record, 
 
 agreements not to appeal the language must be so clear as to 
 leave no doubt that such is the intention.^ And the acceptance 
 by the plaintiff of the satisfaction of decree is not a release or 
 waiver of errors, aifd a party is not estopped thereby from ap- 
 pealing.** 
 
 Effect. — Though on an appeal proper the cause is tried de novo^ 
 yet it is but a continuation of the old cause ;* and when the appeal 
 is properly taken it becomes a supersedeas, or a stay of proceed- 
 ings to enforce execution.^ When the appeal is perfected and 
 the bond is properly executed the jurisdiction and control of the 
 court below ceases,* and no motion can be entertained during the 
 pendency of the appeal.'' Where, however, the court below has no 
 jurisdiction, none arises in the appellate court by virtue of the ap- 
 peal.* 
 
 Record. — It should contain whatever is necessary to be en- 
 
 the party appealing. Petnberton's Case, 
 13 Stewart (N. J.), 520; Atkinson v. 
 Manks, i Co.w. (N. Y.) 691. 
 
 But wlien the agreement on the case 
 stated was obtained by fraud an appeal 
 will lie. Rowell, Adm., v. Turner, 139 
 Mass. 97. 
 
 1. Stediker v. Bernard, 93 N. Y. 589. 
 But an agreement not to appeal does not 
 preclude a writ of error. Putnam u. 
 Church, 4 Mass. 516. 
 
 2. Morriss, etc., w. Garland's Adm. etal., 
 78 Va 215; In re New York Central R. 
 Co., 60 N. Y. 112; Embry v. Palmer, 107 
 U. S. 8. 
 
 3. Walden o. Berry, 12 Wr. (Pa.) 456; 
 O'Leary v. Fargher, 11 Or. 225. 
 
 But in order to secure a trial de novo, 
 not only all the evidence received but all 
 the evidence offered must be certified. 
 Clinton Lumber Co. v. Mitchell et al., 61 
 Iowa, 132. 
 
 4. 3 ball. 321; Mitchell v. Laub, 59 
 Iowa. 36; The State v. Forner, 32 Kan. 
 281; Bratt V. Marum, 24 W. Va. 652. 
 
 5. Washington, Georgetown & Alex- 
 andria R. Co. V. Bradley, 7 Wall. (U. S.) 
 575; Mill V. Compant, 16 Ind. 107; State 
 V. Kine. 94 Ind. 371; Doane's Admrs. v. 
 Penhallow et al., 3 Dall. 54; McGill -o. 
 McGill, 19 Fla. 341; Brainerd v. Taylor, 
 80 Mo. 436. 
 
 But the court below retains the right 
 (concurrently with the supreme court) to 
 preserve the status in quo of the parties. 
 New Brighton & New Castle R. Co. v. 
 Pittsburgh, Youngstown & Chicago R. 
 Co., 105 Pa. 13. 
 
 And where the appeal is taken by the 
 party in whose favor the decree is ren- 
 dered it operates as a supersedeas without 
 filing a bond. Bronson v. La Crosse 
 & Milwaukee R. Co., i Wall. (U. S.) 
 405. 
 
 That the verdict and judgment were 
 vacated by the appeal. Long v. Hitch- 
 cock, 3 Ohio, 274. 
 
 6. Coutes V. Wilkes, 94 N. Car. 174; 
 Keyser v. Farr, 105 U. S. 265; State v. 
 Rowland et al., 36 La. Ann. 192; Stone 
 V. Spellman, 16 Tex. 432; Levi t/.'Kar- 
 rick, 15 Iowa, 444. 
 
 But the filing of the cost bond alone 
 does not prevent the court below from 
 awarding execution. Bailey v. James, 64 
 Tex. 546. 
 
 Nor when the appeal taken is in the 
 nature of a writ of error. Cain v. Wil- 
 liams, 16 Nev. 426. 
 
 The courts of some States hold that 
 the court below has control of its judg- 
 ment until the close of the term at which 
 it was rendered. Grubb v. Leon & Blum, 
 62 Tex. 426. 
 
 7 Skinner v. Bland, 87 N. Car. 168; 
 Penrice v. Wallis et al., 37 Miss. 172. 
 
 Hence a restraining order, in some of 
 the States, dissolved by a dismissal of a 
 bill in equity remains in force pending an 
 appeal from the order dismissing the bill 
 where the proper steps are taken to se- 
 cure a supersedeas. Lewis v. Leahey, 14 
 Mo. Ap. 564. 
 
 But that the appellate court will not 
 suspend the operation of a perpetual in- 
 junction pending an appeal. See Swift 
 V. Shepard, 64 Cal. 423. 
 
 8. Osgood V. Thurston, 23 Pick. (Mass.) 
 no; Moore v. Hillebrant, 14 Tex. 312; 
 Mordecai et al. v. Lindsay et al., 19 How. 
 199. Mr. Justice Wayne, in delivering the 
 opinion of the court in the case last cited, 
 said: "It [referring to the supreme court] 
 cannot overlook the fact upon which its 
 jurisdiction depends by any action in the 
 case in the circuit court upon an irregular 
 appeal. The case in that court was coram 
 nonjudice, and is so here." 
 
 633 
 
Civil. 
 
 APPEAL. 
 
 Becord — What is Opfen.- 
 
 rolled according to the law or practice of- courts. But what it is. 
 not necessary to enroll, such as testimony, exceptions, etc., does 
 not form any part of the record unless made so by order of court, 
 by agreement of the parties, by demurrer to evidence, by oyer,, 
 by bill of exceptions, or by special verdict.* It should be certified 
 as it originally stood, and all improper changes must be ignored. 
 by the appellate court.* The opinion of the court nor the evi- 
 dence is not part of the recbrd without it is made so in the proper 
 manner, and putting it upon the transcript does not make it so.' 
 No evidence outside of the record will be considered.* 
 
 What is Open. — All the facts and the law in the record or that 
 are made part of the record by exceptions or in any other proper 
 manner are open to a re-examination and rehearing;' and though, 
 the cause be heard as if the proceedings were original, yet the court 
 above will not consider questions not excepted to or presented 
 during the trial* at the proper time,*" for they are said to be 
 waived.* Objections first taken to evidence in the court above 
 come too late ;* nor can the ground of the complaint or defence 
 be shifted in the court above from that taken below.*" The appel- 
 late court, however, will take notice of an objection raised for the 
 
 1. Lenox v. Pike, 2 Ark. 14; Olds o. Atl. Repr. 669; Hennion v. Stillwell, 34. 
 
 Deckman, g8 Ind. 162. 
 
 A motion for change of venue is not 
 part of the record without a bill of excep- 
 tions. Heacock v. Hosmer, log'lll. 245. 
 Nor a master's report. Stanton et al. v. 
 The State, 82 Ind. 463. 
 
 2. Kennedy!'. Kennedy, i3Lea(Tenn,), 
 24; Carskadden v. Barttett, 63 Iowa, 180. 
 
 A short-hand report properly certified 
 may be made a part of the record. Ross 
 V. Loomis, 64 Iowa, 432. But it is not 
 ordinarily so. McAllister v. Connecticut 
 Mutual Life Insurance Co., 78 Ky. 531. 
 
 3. England ». Gebhardt, 112 U. S. 502. 
 
 4. Bond V. Citizens' National Bank, 4 
 Atl. Repr. 893; Bevin ei al. v. Rowell et 
 al., 11 Mo. App. 216; Carmichael et ux. 
 V. Cox, 85 IrM. 151. 
 
 6. 7 Cranch. no; Owen v. Shelhamer, 
 3 Bin. 48. 
 
 6. Harrington v. Minor, 80 Mo. 270. 
 Ewing, C: "No objection was made 
 on the trial by appellant to the introduc- 
 tion of the testimony or the mode of 
 assessing the damages, nor were there 
 any instructions of law asked or given 
 by the court. There is nothing in this 
 case for this court to review. ' The only 
 way in which errors can be corrected, if 
 the law is wrongfully decided or a mis- 
 application of the law to the facts is made 
 by the lower court, is to ask declarations 
 of law or instructions in order that this 
 court may see upon what theory the 
 court below proceeded." Boyd v. Plai- 
 ner. 5 Mont. 226; Hummell's Appeal, 5 
 
 Hun, 178. 
 
 As, for instance, what has been ignored 
 below. Clark Bank v. Christie, 6i Wis. 
 9. And an error not well assigned to all 
 appellants cannot be available for any. 
 Jones et al. v. Carter, 96 Ind. 306; Pad- 
 gett V. Sweeting, 4 Atl. Repr. 887. ' 
 
 An objection for failure to join parties 
 can only be taken first in the court above 
 when such failure would deprive them of 
 rights. Mfg. Co. f. Wire Fence Co., 
 109 111. 71. 
 
 7. Hallowell's Appeal, 20 Pa. 215; 
 Wilson V. Church, 60 Iowa, 112; Tayloe 
 V. Old Dominion Steamship Co., 88 N. 
 Car. 15. 
 
 8. Arnold v. Parmelee et al., 97 N. Y. 
 652. 
 
 And objections taken at one trial are 
 of no avail on the second. Arnold v. 
 Parmelee et al., 97 N. Y. 652; Langley 
 V. Wadsworth, 99 N. Y. 61. 
 
 9. Honore v. Wiltshire, 109 111. 103; 
 Rowers et al. v. Johnson et al., 86 Ind. 
 298; Fostier v. New Orleans Bank, 112 
 U. S. 439; Burrroughs v. Morse, 45 
 Mich. 520. 
 
 So if the objection to the admission of 
 evidence' be made on one ground in the 
 court below, other reasons for objection 
 cannot be urged in the court above. 
 Ladd & Bush v. Sears, 9 Or. 244. 
 
 They must be specific. McAllister v. 
 Reab, 8 Wend. 189; Curelon v. Durgan, 
 16 S. Car. 619. 
 
 20. Larison v. Polhemus, 39 N. J. 303; 
 
 624 
 
-Civil. 
 
 APPEAL. 
 
 What is Open. 
 
 ■first time on appeal, which would have destroyed the foundation 
 of the action, ^as where there has been a want of jurisdiction,* or 
 in case of a void judgment ;* and in such cases the better practice 
 :*s to reverse* and not to affirm, as that would put the costs on the 
 wrong party. It will not re-examine anything that has been 
 •decided in a former appeal, as that is res adjudicata ; but what is 
 decided simply as incidental to the question at issue is not res 
 adjudicata.^ 
 
 Bray's Adm. v. Seligman's Adm., 75 
 Mo. 31. 
 
 1. Bechman v. Frost, 18 Johns. 343. 
 The appellate court determines its own 
 
 jurisdiction. The San Pedro, 2 Wheat. 
 132; In re Coston, 23 Md 271; Thomp- 
 :son V. McKim et al., 6 H. & J. (Md.) 302. 
 
 2. Kidder v. Fay, 60 Wis. 218. 
 
 . Or in fact whenever the complaint fails 
 •to support the judgment. Forster v. Wil- 
 son, 5 Mont. 53. 
 
 Or stale a cause of action. Tucker v. 
 Baker, 86 N. Car. i. 
 
 3. Grace v. American Cent. Ins. Co., 
 109 U. S. 278; M. C. & Lake Michigan 
 
 ■V. Swan, III U. S. 379. 
 
 4. The People v. Ferris, 36 N. Y. 218; 
 Kidder v. Fay, 5o Wis. 218. 
 
 5. Supervisors v. Kennicott, 94 U. S. 
 .498; The Lady Pike, 96 U. S. 461; The 
 
 Star Wagon Co. v. Swezy, Libo & Co., 
 63 Iowa, 520; Schlender v. Corey, 30 
 Minn. 501; Jones «;<j/. v. Castor, 96 Ind. 
 
 . 307- 
 Th e chief justice in Wilson et al. v. 
 Fridenberg, 21 Fla. 386, in the course of 
 his opinion, said (of the case at issue) : 
 "We think this decision states the law on 
 ■the subject correctly; but correct or in- 
 correct, it is the law this case, and can- 
 not be reviewed by us." 
 
 Rowell, J., in Railroad Co. v. Bixby, 
 57 Vt. 548, delivered the opinion of the 
 
 • court, of which the following is a part: 
 "Thus it seems that, by some inadver- 
 tency, the Supreme Court assumed with- 
 out allegation or proof that the interest of 
 the Montpelier & St. Johnsbury Co. in 
 
 :said property was a one-third interest, 
 
 . anii decided accordingly, whereby injus- 
 tice was done; and the important ques- 
 tion now is whether the mandate of that 
 court is obligatory on the Court of Chan- 
 cery to the extent of depriving it of the 
 
 ipower to allow such further proceedings 
 in the case as were necessary to remedy 
 the wrong and do justice between the 
 parties." 
 
 Matters in issue in a cause that are 
 decided by the Supreme Court are as 
 a general rule taken from the control of 
 
 'the Court of Chancery by the mandate. 
 
 :Sortwell v. The Montpelier & Wells River 
 
 R. Co., 56 Vt. 180; Sherman & Adams 
 V. The Windsor Manufacturing Co., 
 ante. 57. 
 
 Matters in issue in a cause that are not 
 decided by the Supreme Court are as fully 
 under the control of the Court of Chan- 
 cery after mandate as before. Barker & 
 Haight V. Belnap'sEst.. 27 Vt. 700; s. c, 
 39 Vt. 168; Gale V. Butler, 35 Vt. 44; In 
 re Chickering, 56 Vt. 82. 
 
 Matters not in issue in a cause that 
 are inadvertently decided by the Supreme 
 Court, whereby injustice is done, ought 
 to be as fully under the control of the 
 Court of Chancery after mandate as 
 before; otherwise, as here . the party 
 might be entirely without remedy, for it 
 is impracticable for him to apply to 
 the Supreme Court in the premises, 
 as frequently the first information he ob- 
 tains of its decision is derived from the 
 mandate, when it is too late to apply; nor 
 can he resort to a bill of review, for un- 
 der the statute that is sustainable only for 
 causes originating afier, or that were un- 
 known to the party before, the rendition 
 of the decree from which the appeal was 
 taken; nor will the petition for a rehear- 
 ing lie. for that must not stale matters 
 that do not appear in the pleadings or the 
 statement of which is not warranted by 
 the pleadings; and if it makes a case dif- 
 ferent from that on which the decree was 
 founded, by introducing facts and circum- 
 stances not before the court at the time 
 the decree was made, it will b'e dismissed. 
 Wood w. Griffith, 1 Miss. 35; s. c, 19 
 Ves. 550; 3 Dan. Ch. Pr. & PI. (2d Am. 
 Ed.) 1679; I Hoff. Ch. Pr. 564. 
 
 Now while it may well be said, as it is in 
 Canerdy v. Baker. 55 Vt. 582, that "every 
 consideration demands that a decision of 
 the Supreme Court shall be final, and es- 
 pecially that it shall not be changed by a 
 single judge as chancellor," yet it may 
 also be said, as there, that error, inad- 
 vertence, mistake, are not decision. And 
 especially should they not be so regarded 
 when the thing decided was not in issue; 
 but in such case the matter should 
 rather stand as though no decision had 
 *been made, and the Court of Chancery 
 left to allow further proceedings in its dis- 
 
 635 
 
Civil. 
 
 APPEAL. 
 
 Tractive. 
 
 Practice. — The practice on appeal in the appellate court varies 
 very much; but we may lay it down as a general rule that the 
 finding of the court below will not be disturbed or reversed for a 
 mere preponderance of testimony or weight of evidence/ as the 
 court above always presumes in favor of the judgment or decree 
 below.'-* This presumption is so strong that a reversal will not 
 take place without good cause shown, ^ or the appearance of error 
 on the record,* and that the appellant has been prejudiced there- 
 by.** It is not enough that trivial, formal, or technical errors have 
 been committed.^ 
 
 The party or parties in whose favor the judgment or decree 
 has been entered are not entitled to a reversal or any affirmative 
 relief on an appeal unless they, too, have taken an appeal or a 
 cross-bill has been filed.'' 
 
 cretion. This question has not been de- 
 cided in this State, but to hold thus ac- 
 cords with the rule that judgments are 
 conclusive as between the parties even 
 only as to matters put in issue by the 
 pleadings and decided. Thus in Sent- 
 yenick v. Lucas, I Est. 43, Lord Kenyon 
 said that in order to make a record evi- 
 dence to conclude any matter it should 
 appear that the matter was in issue. 
 Manny v. Harris, 2 Johns. 24. 
 
 So in Campbell v. Consalus, 25 N. Y. 
 613, it was held in a subsequent suit that 
 matter formerly adjudged between the 
 parties was not thereby concluded be- 
 cause not then in issue by the pleadings. 
 People V. Johnson, 38 N. Y. 63; Standish 
 V. Parker, 2 Pick. 20 and «. 2; Outram 
 V. Merewood, 3 East, 346. 
 
 1. Carmichael et ux. v. Cox, 85 Ind. 
 151; Knights of Golden Rule v. Rose, 62 
 Tex. 321; Thomas v. New York Life Ins. 
 Co., 99 N. Y. 250; Cole v. Coskery 
 Adm., 63 Iowa, 526; First National Bank 
 V. Baker, 60 Iowa, 132; FuUenwider v. 
 Ewing, 30 Kans. 15; Miller et al. v. 
 Bank, 99 Ind. 272; Arnold et al. v. Wilt, 
 86 Ind. 367; Roddy's Appeal, 99 Pa. 9; 
 Reeves v. Roberts, 62 Texas, 550; Wil- 
 son V. Lightbody, 29 Kans. 446; Brown 
 V. Manning, 29 ICans. 602; Shackleford 
 V. Post Publishing Co., 61 Cal. 494. 
 
 2. Tom V. Finly, 74 Ala. 343; Miller 
 et al. V. Shriver, 86 Ind. 493. 
 
 Consequently, if the evidence be not 
 sent up on exceptions, the judgment will 
 be affirmed. Nichols v. Littlefield, 60 
 Cal. 238. 
 
 3. As the admission of incompetent evi- 
 dence. Gossard v.^oo&ietal. 98 Ind. 195. 
 
 Or the exclusion of proper testimony. 
 McLaurin v. Wilson, 16 S. Car. 5. 
 
 Or proof of legal presumptions. Brack- 
 ken V. Minneapolis & St. Louis R. Co., 4 
 32 Minn. 425. 
 
 Or instructions in the abstract erro- 
 neous, but which work no injury to the' 
 party complaining, are not good cause. 
 Jones V. Angell, 95 Ind. 376; Salmon v. 
 Old & King, 9 Or. 488; Edwards Bros. 
 & Fair v. Porter & Porter, 28 Kans. 700; 
 Phillips V. Taylor, 4 Fastern Reporter, 
 154- 
 
 Nor will the admission of evidence 
 prima facie inadmissible, but which sub- 
 sequently becomes competent, work a. 
 reversal, Belmont Coal & R. Co. v. 
 Smith, 74 Ala. 206. 
 
 A reversal will sometimes take place 
 for excessive damages. Pennsylvania 
 R. Co. V. Heister, 8 Barr, 445; Baker v. 
 City of Madison, 62 Wis. 137. Contra, 
 Reilley v. President of the Del. & Hud. 
 C, Co., 5 Eastern Reporter, 756. 
 
 But not on a writ of error. Pa.' R. Co. 
 V. Spicker, 105 Pa. 142. 
 
 4. Heymes z/. Champlin <'/o/., 52 Mich. 
 25; Wilson V. Stanton et al, 58 Iowa, 
 404; Kelliher v. Keokuk, 60 Iowa, 473; 
 Schlesinger v. Chapman, 52 Conn. 271; 
 Groenendyke et al. v. Coffeen et al., 109 
 111. 325; Blair !<. Ray etal., 103 111. 615; 
 Caine et al. v. Truman, 103 111. 321; Weir 
 V. B. & Mo. R. Co., 19 Neb, 212. 
 
 Hence, where the exception is clearly 
 frivolous, the motion to dismiss will be 
 denied, but the judgment will be affirmed. 
 New Orleans Ins, Co. v. Abro Co., 112 
 U. S. 506. 
 
 A statutory penalty, given when an 
 appeal is taken in bad faith or for delay, 
 will not be assessed, though the appel- 
 lee's case is clear and supported by tes- 
 timony overwhelmingly preponderating, 
 if the appellant's counsel appears to have 
 had confidence in his case. Taylor v. 
 Kitchnm, 57 Wis. 41. 
 
 5. Kelley v. Fitzell, 65 Cal. 87. 
 
 6. Dye v. Main, 10 Mich. 2gi. 
 
 7. Sickel v. Norman et al., 63 lOwa, 
 
 636 
 
Civil. 
 
 APPEAL. 
 
 SismiBBal— Judgments. 
 
 When the case is tried de novo in the court above, it is upon 
 the same issues as were raised below.^ Amendments are some- 
 times, however, allowed to support the decree, but never to reverse 
 it ; * and in that case the test is, would they have been permitted 
 below ?^ But the record of the court below can only be amended 
 through that court on proof taken or orders made ; * the appellate 
 court does not of itself amend the record.^ 
 
 Courts of appeal usually require that the appeals should be 
 brought before them in good order," and that the papers in two 
 appeals on the same case should be kept separated.' 
 
 Dismissal. — Appeals will be dismissed for want of jurisdiction,^ 
 omission to prosecute * for want of citation, i" for failure to file the 
 petition for an appeal within the proper time.^^ or to file a tran- 
 script or bond in time; ^* but mere irregularities are not sufficient 
 to cause a dismissal.*^ And proper grounds for the dismissal 
 should be stated in the motion. i* 
 
 Judgments. — These are under the control of the court which 
 renders them during the term at which they are rendered or 
 entered of I'ecord, and may then be set aside, vacated, modified, 
 or annulled by that court.^^ On the rendition of the judgment by 
 
 128; Turner v. Turner et al., 44 Ark. 25; 
 Clowes w. Dickinson et al., 8 Cow. (N. Y.) 
 328; Wilt V. Trustees, etc., 55 Wis. 376. 
 
 The party who does not appeal can 
 only be heard in. support of the decree. 
 The Quickstep, g Wall. 665. 
 
 This does not conflict with Mabey z/. 
 Cooper, 14 Wall. 204; Stephen Morgan, 
 94 U. S. 599. 
 
 But this rule does not apply where the 
 proof of the prevailing party showed he 
 had no right to his decree. Wooley v. 
 Drew, 49 Mich. ago. 
 
 1. Martin's Appeal, 23 Pa. 433; Wick- 
 wire V. The State, 19 Conn. 477. 
 
 2. Rowe ». Comley, II Daly, 317; Ir- 
 ving National Bank v. Adams, 28 Hun, 
 108; Hamilton v. Langley, 52 Mich. 549; 
 Hedrick v. Osbourne & Co., 99 Ind. 
 143. 
 
 3. McLane v. Paschall, 62 Texas, 102 ; 
 Gutbrecht v. Pros. Park & C. I. R. Co., 
 28 Hun, 497; Kelmer v. N. Y. C. & H. 
 R. R. Co., 94 N. Y. 495, 
 
 Clerical mistakes may be corrected. 
 Woodward v. Brown, 13 Peters, i; Di-ey- 
 fuss V. Tompkins, 67 Cal. 339. 
 
 4. Boyd V. Burrill, 60 Cal. 280. 
 6. Boyd V. Burrill, 60 Cal. 280. 
 
 6. Comm'rs of Beaufort v. Satchwell 
 etal., 88 N. Car. i. 
 
 7. In re Swezey et al., 64 Howard Pr. 
 (N. Y.) 331; Olengir v. Liddle, 55 Wis. 
 621. 
 
 8. D'Arcy,*. Ketchum, 11 How. 163; 
 Snitjer v. Downing, 80 Mo. 586. 
 
 9. The Jonquille, 6 Wheat. 452; De 
 
 637 
 
 Leuw V. Carrigan, 19 111. App. 193; 
 Jacoby v. Mitchell, 19 Neb. 537. 
 
 10. Buckingham v. McLean, 13 How. 
 t50. 
 
 11, Terminal Co. v. Lowenberg f< al., 
 II Or. 286. 
 
 13. Terhune v. Pinkney, 39 N. J. Eq. 
 494- 
 
 But the motion to dismiss comes too 
 late if not made before the first term of 
 the court. Wheeler & Wilson Mfg. Co. 
 V. Burlingham, 137 Mass. 581. 
 
 13. As a failure of one of several de- 
 fendants to make affidavit on appeal when 
 the recognizance is to be for all. Jones 
 I/. .Backus & Rogers, 43 Leg. Int. Pa. 
 457- 
 
 14. Scofield V. Pope, 103 111. 138; De 
 Leuw V. Corrigan, 19 111. App. 194. 
 
 And where a motion was made to dis- 
 miss for the incompleteness of the record, 
 it was held that the motion should state 
 the specific particulars in which the mo- 
 tion was defective. Huey v. Tricon, 36 
 La. Ann. 519. 
 
 15. Fraley u. Feather, 46 N. J. L. 429. 
 In Bronson v. Schulten, 104 U. S. 410, 
 
 part of the opinion is as follows: " In 
 this country all courts have terms and 
 vacations. The time of the commence- 
 ment of every term, if there be half a 
 dozen a year, is fixed by statute, and the 
 end of it by the final adjournment of the 
 court for that term. This is the case 
 with regard to all the courts of the United 
 States, and if there be exceptions in the 
 State courts, they are unimportant. It is 
 
la Civil Practice — Judgment. 
 
 APPEAL. 
 
 In Criminal Practice. 
 
 the court above, it is the better practice for that court to send the 
 case down for the court below to enforce or carry out the decree 
 or judgment.^ But when the plaintiff is given the option of 
 having a new trial or remitting part of his judgment, and he 
 chooses the latter, the appellate court enters the judgment itself.'-* 
 And the court below, on the receipt of the remittitur, can only 
 follow the directions of the appellate court and take such inci- 
 dental steps as are necessary thereto.^ It has no power to engraft 
 upon the decree of the supreme court an order of restitution not 
 contained in it.* When the court of appeal affirms the judgment 
 below without an opinion, the inference is that the opinion is 
 adopted,' and the judgment of the lower court is merged by 
 judgment above.* 
 
 2. In Criminal Practice. — An accusation by a private subject 
 against another for some heinous crime demanding punishment 
 on account of the particular injury suffered rather than for the 
 offence against the public.'' Appeals were either capital or not 
 capital: those not capital were de pace, de plagio, de imprisonamento 
 (all of which are obsolete and turned to actions of trespass),* and 
 mayhem; capital were for treason (abolished 5 Edw. III. c. 9, 
 2^, Edw. III. c. 24, and i Hen. IV. c. 14), arson (obsolete),* lar- 
 ceny, rape, and murder (abolished by 59 Geo. III. c. 46, in conse- 
 quence of Ashford v. Thornton^"). An appeal for murder must 
 
 a general rule of law that all judgments, 
 decrees, or other orders of the courts, 
 however conclusive in their character, are 
 under the control of the court which pro- 
 nounces them during the term at wliich 
 they are rendered or entered of record, 
 and they may then be set aside, vacated, 
 modified, or annulled by that court. But 
 it is a rule equally well established that 
 after the term has ended all final judg- 
 ments and decrees of the court pass be- 
 yond its control unless steps be talcen 
 during that term, by motion or otherwise, 
 to set aside, modify, or correct them ; and 
 if errors exist, they can only be corrected 
 by such proceeding by a writ of error or 
 appeal as may be allowed in a court 
 which, by law, can review the decision. 
 So strongly has this principle been up- 
 held by this court, that while realizing 
 that there is no court which can re- 
 view its decisions, it has invariably re- 
 fused all applications for rehearing made 
 after the adjournment of the court for the 
 term at wjiich the judgment was ren- 
 dered. And this placed upon the ground 
 that the case has passed beyond tlie con- 
 trol of the court." Brooks v. Railroad 
 Co., 102 U. S. 107; Public Schools v. 
 Walker, 9 Wall. 603; Brown v. Aspden, 
 14 How. 25; Cameron v. McRoberts, 3 
 Wheat. 5gi ; Sibbald v. United States. 12 
 Pet, 488; United States v. The Brig 
 
 Glamorgan, 2 Curt. C. C. 236; Bradford 
 V. Patterson, 1 A. K. Marsh. (Ky.) 464; 
 Ballard v. Davis, 3 J. J. Marsh. (Ky.) 6g6. 
 
 1. Thomas v. New York Life Ins. Co., 
 99 N. Y. 250. 
 
 2. Baker v. Madison, 62 Wis. 137. 
 
 3. Zorn ei al. v. Lamar et al., 71 
 Ga. 80. 
 
 When the remittitur is properly issued 
 the jurisdiction of the court above ceases. 
 Ex parte Dunovant, 16 S. Car. 299. 
 
 But the jurisdiction of the court below 
 exists only to enforce the judgment. Ex 
 parte Knox, 17 S. Car. 207. 
 
 When the supreme court remands with 
 special directions as to the judgment to 
 be entered, the lower court has no power 
 to enter any other or to open the case 
 again. Chouteau w. Allen, 74 Mo. 56. 
 
 A judgment of the supreme tourt is as 
 effective before being certified to the 
 court below as aften Wall v. Dodge et 
 al., 3 Utah, 168. 
 
 But discrimination may be used when 
 orders are merely directory. Gilmore v. 
 Tuttle (N. J.), 2 Centra, Repr. 190. 
 
 4. Hughes' Appeal, go Pa. 60. 
 
 5. Higgins v. Crichton, 98 N. Y. 626. 
 
 6. Weborn v. Pinney, ,76 Ala. 291. 
 
 7. 4 Bla. Com. 312. 
 
 8. Bac. Abg. 292. 
 
 9. Co. Lit. 288 a. 
 
 10. 9 B. & Aid. 405, 1818. 
 
 638 
 
legislative. APPEAL— APPELLA,TE— APPENDAGE. Constructions. 
 
 have been brought within a year and a day, and the other appeals 
 within a reasonable time.^ Appeals were vindictive actions begun 
 either by bill or writ on the civil side of the court.** They could 
 be released,^ but the king's pardon was no defence.* 
 
 3. In Legislation. — The act by which a member of a legislative 
 body who questions the correctness of a decision of the presiding 
 officer in " chair" procures a vote of the body upon the decision. 
 The substance of the question is, " Whether the decision of the 
 chair shall stand as the judgment of the house?" In order to 
 make an appeal it must be done imniediately after the decision is 
 rendered — that is, before the intervention of any further parlia- 
 mentary proceedings. 
 
 An appeal may be debated as a question before the assembly, 
 but the proceeding out of which it arises is not debatable.** 
 
 APPEAEANCE. See ACTIONS. 
 
 APPELLATE. — Pertaining to or having cognizance of appeals 
 and other proceedings for the judicial review of adjudications.^ 
 
 APPENDAGE. — Something added as an accessory to, or the sub- 
 ordinate part of, another thing;'' something added to a principal 
 or greater thing, though not necessary to it.* 
 
 1. Bac. Abg. 2g5. 
 
 2. 5 Burr. 2643. 
 
 3. Co. Lit. 287. 
 
 4. 4 Bla. Com. 315. 
 
 5. Gushing Law Practice of Legislative 
 Assemblies, §§ 1460-1466. 
 
 6. Rap. & Lawr. L. Diet. 
 Appellate Court. — A court of appeals. 
 
 Allen V. State, I Tex. App. 514. 
 
 A court having jurisdiction of removed 
 causes, without regard to the manner of 
 their removal — by appeal, certiorari, or 
 writ of error. Clark v. Ross, Breese's 
 Rep. (111.) 261. 
 
 Appellate Jurisdiction. — Jurisdiction to 
 revise or correct the proceedings in a 
 cause already instituted and acted upon 
 by an inferior court, or by a tribunal hav- 
 ing the attributes of a court. Auditor of 
 State V. Atchison, etc., R. Co., 6 Kan. 
 
 505- 
 
 When " appellate jurisdiction" in a cer- 
 tain class of cases is given, the inference 
 is that ' ' original " jurisdiction in that 
 class is excluded. Marbury v. Madison, 
 1 Cranch (U. S.), 175. 
 
 "Appellate jurisdiction is not only a 
 continuation of the exercise of the same 
 judicial power which has been executed in 
 the cpurt of original jurisdiction, but it 
 necessarily implies that the original and 
 appellate courts are capable of participat- 
 ing in the exercise of the same judicial 
 power." Piqua Bank v. Knoup, 6 Ohio 
 St. 3gi, dissenting opinion of Bartley, 
 Ch. J. 
 
 " Appellate" and " Supervisory" Power. 
 
 — Where by act of Congress the "super- 
 vision" of public business relating to 
 public lands was conferred upon the sec- 
 retary of the interior, and the commis- 
 sioner of the general land office was 
 vested with authority to perform executive 
 duties connected with the public lands, 
 " under the direction of the secretary of 
 the interior," held, that the latter's 
 power of revising the acts of his subor- 
 dinates was "supervisory rather than 
 appellate power, in the sense in which 
 the term ' appellate' is employed in defin- 
 ing the powers of courts of justice," and 
 that in the exercise thereof he might ap- 
 prove, modify, or annul their acts. Hes- 
 tres V. Brennan, 50 Cal. 211. 
 
 7. State Treasurer v. Somerville, etc., 
 R. Co., 28 N. J. L. 26. 
 
 8. State V. Fertig (Iowa), 30 N. W. 
 Rep. 633. 
 
 "Necessary Appendages" to a School- 
 house. — Under an act directing that "the 
 district board shall provide the necessary 
 appendages for the school-house," it was 
 held that a stereoscope and stereoscopic 
 views did not come within this descrip- 
 tion, and it was said that appendages for 
 the school-house "would seem to refer 
 to things connected with the building or 
 designed to render it suitable for use as 
 a school-house." School District v. Per- 
 kins, 21 Kan. 536; s. c, 30 Am Rep. 
 447- 
 
 This language was construed broadly 
 
 I C. of L. — 41 
 
 629 
 
APPEND A GE— APPENDANT— APPER TAINING. 
 
 APPENDAWCE. See Appendant. 
 
 APPENDANT. (See also APPURTENANCE.) — A thing used with 
 and related to or dependent upon another thing more worthy, to 
 which it has belonged beyond memory, and agreeing with that to 
 which it is related in its nature and quality.^ But one kind of 
 corporeal real property cannot be appendant to another descrip- 
 tion of the like real property, as land to land or a house ;** and it 
 seems that at common law an easement, as distinct from an 
 interest, Cannot in strictness be called appendant.^ 
 
 APPERTAINING. (See also Appurtenant.)— Belonging to; 
 also usually occupied, used, or lying with, as land with a messuage.* 
 
 so as to authorize the district board to 
 construct a well, a fence, or a privy on- 
 the school house grounds, and it was ex- 
 pressly decided that a well was a " nec- 
 essary appendage;" Hemme v. Schbol 
 District, 30 Kan. 377. 
 
 A fence inclosing a school-house site 
 and separating it from adjacent lands- is 
 a "necessary appendage." "The word 
 ■ appendage,' as used in our school stat- 
 utes, does not mean simply the school 
 apparatus to be used inside the building; 
 nor do I think it can be limited to such 
 articles as brooms, pails, cups, etc., but 
 must be construed in a broader sense, as 
 it has in other courts, to include fuel, 
 fences, and necessary outhouses." Crea- 
 ger V. School Dist. (Mich.), 28 N. W. 
 Rep. 794- 
 
 Road with its Appendages — This 
 phrase in a railroad charter was held not 
 to include the equipment, rolling-stock, 
 furniture, or other personal property of 
 the company, but to be invariably applied 
 to real estate — to,the accessories of the 
 road itself ; and, as examples, were enu- 
 merated depots, car-houses, water-tanks, 
 shops for repairing engines, etc.; houses 
 for switch and bridge tenders; coal or 
 wood yards for fuel for the use of loco- 
 motives; bridges, viaducts, wharves, piers, 
 and other similar erections. " Invariably 
 the term is used to denote an accessory 
 of the road, something connected with 
 it, and either essential to its completion 
 or to its advantageous and con venient ope- 
 ration." State Treasurer v. Somerville, 
 etc., R. Co., 28 N. J. L. 26, 27. 
 
 " Appendage " to a Saloon. — Where 
 whiskey was found in a room back of a 
 saloon, but separated from it by a third 
 room, it was held that the back room 
 could be properly denominated an "ap- 
 pendage" to the saloon, so that there 
 would be a presumption that the whiskey 
 found there was kept for unlawful sale. 
 State V. Fertig (Iowa), 30 N. W. Rep. 
 633. 
 
 1. Leonard v. White, 7 Mass. 8. See 
 I Chit. Gen. Pr. 153-8. 
 
 " Appendant " and " Appurtenant." — 
 While the former word denotes a thing 
 which, by prescription, has belonged to 
 another principal and more worthy thing, 
 as commons, ways, and other easements 
 of a manor, the latter signifies that 
 which .may commence and be created at 
 this day (i Chit. Gen. Pr. 154) by grant 
 or use. Jackson v. Striker, i Johns. Cas. 
 (N. Y.) 291. 
 
 2. Leonard v. White, 7 Mass. 9. 
 
 3. Godley v. Frith, Yelv. 159. 
 
 4. Hill V. Grange, Plowd. 170. 
 Property Appertaining to said Kailroad. 
 
 — A mortgage-by a railroad company of its 
 real estate, engines, machinery, etc., and 
 " all other personal property whatsoever 
 in any way belonging or appertaining to 
 the said railroad of the said company," 
 was held not to include canal boats used 
 and run in connection with the road, but 
 beyond its terminus. "They were in a 
 general sense accessory to the business 
 of the road; but I very much doubt 
 whether they belonged or appertained to 
 it according to any interpretation which 
 we can place upon those terms." Parish 
 ■V. Wheeler, 22 N. Y. 494. 
 
 Expenses that may Appertain to the 
 Goods themselves., — Where one was 
 bound by contract to pay over to another 
 one tenth of the net profits of a business 
 relating to the sale and purchase of car- 
 goes, collecting freight moneys, collect- 
 ing and forwarding information, etc., 
 after deducting " the actual expenses that 
 may appertain to the goods themselves;" 
 held, tliat the expenses of clerk-hire, ad- 
 vertising, and taxes were properly de- 
 ducted from the gross amount. Foster 
 V. Goddard, i Cliff. (U. S.)i58. 
 
 With the Lands Appertaining. — It was 
 held that by a devise of a house "with 
 the lands appertaining," land employed 
 for producing hay and corn, etc., passed, 
 while, had the devise been " with the ap- 
 
 630 
 
APPLICABLE— APPLICATION— APPOINTMENT. 
 
 APPLICABLE.-— Adapted to the habits and condition of our 
 society, and in harmony with the genius, spirit, and objects o£ 
 our institutions.* 
 
 APPLICATION. — A request, usually in writing, to a person above 
 the one making the request.* 
 
 APPLICATION OF PAYMENTS. See PAYMENTS. 
 APPLIED. — In a contract, directed towards.* 
 APPLY.— To have to do with.* 
 
 APPOINT. — The selection by some single person or officer of a 
 certain person to do some particular thing.^ 
 
 APPOINTMENT. — Definition. — The designation of a person by 
 the person or persons having authority therefor to discharge the 
 duties of some office or trust, or to take an estate or interest in 
 property under a power.^ 
 
 To an Office, — The appointment to a public office is made by one 
 or more possessing delegated powers as distinguished from " elec- 
 tion" where the right is exercised by many. It is completed by 
 the signing and sealing of the certificate or commission, upori 
 which the appointee can at once take possession of the office,*" 
 
 purtenances," only the garden and or- 
 chard would have passed. Blackborn v. 
 Edgley, i P. Wms. 603. 
 
 1- Wagner v. Bissell, 3 Iowa, 402. 
 
 As, for instance, " a general law might 
 be applicable to the general subject but 
 not applicable to the particular case. In 
 other words, that a general law could not 
 always be so moulded as to meet the ex- 
 igencies of every case." Evans v. Job, 
 8 Nev. 334. 
 
 2. Application for Continuance. — Where 
 a statute requires an affidavit on a second 
 application for continuance, it was held 
 that an application refused was not an 
 application within the statute. The Stale 
 V. Maguire, 69 Mo. 204. 
 
 Application for Insurance Policy. — A 
 paper containing a series of questions in- 
 tended to be addressed to the person 
 whose life was proposed to be insured. 
 Higbee v. Guardian M. L. Ins. Co., 66 
 Barb. (N. Y.) 462. 
 
 On Application. — These words used in 
 the staiute giving release to insolvent 
 debtors do not mean necessarily a writ- 
 ten application. State v. Stiles, 7 Halst. 
 (N. J.), 298. 
 
 Eefusal of an Application. — This phrase 
 is wide enough to include the dismissal 
 of a bill on an appeal. International F. 
 S. V. City of Moscow Gas Co., 7 Ch. 
 Div. 246. 
 
 SnmmaTy Application. — A motion for a 
 relaxation of costs is not a special pro- 
 ceeding nor a summary application in the 
 
 action after judgment. Ernst v. Tfie' 
 Steamer Brooklyn, 24 Wis. 6i5. 
 
 3. Manice v. Hudson River R. Co., 3 
 Duer (N. V.). 436. 
 
 Applied For.— To make an affidavit 
 alleging that it is made for the purpose 
 of obtaining a tax deed is "applied for." 
 Mead et al. v. Nelson, 52 Wis. 402. 
 
 4. " Before we can assume that the 
 State law applies to such a case we must 
 show that it governs." Wayman v. Soutii- 
 ard, 10 Wheat, i. 
 
 Apply to the TTse. — A trust to apply 
 money to the use of A. B. does not mean 
 to pay the money over to A. B., but to- 
 apply the money to the use of the bene- 
 ficiary, that is, to see that the beneficiary 
 actually enjoys the fruit of the donor's- 
 bounty. Hawley v. James, 16 Wend. 
 156, 266. 
 
 5. The words "nominate," "select,"^ 
 "designate." "choose," would either of 
 them be equivalent to appoint. If used in 
 that sense. People z;. Fitzsimmonsf/<i/., 
 68 N. Y. 519; Comm'rs v. Louisville, 3. 
 Bush (Ky.), 602; Speed v. Crawford. 3 
 Mete. (Ky.) 207. See also Rex v. Adams- 
 etal., 2 Ad. & El. 413. 
 
 Annually Appoint.— The right to an- 
 nually appoint if duly exercised entitles- 
 the appointee to office for one year, and 
 a resolution rescinding such appointment 
 is void. Buffalo v. Mackay, 15 Hun- 
 (N. Y.), 204. 
 
 6. Bouv. Law Diet. ; Rap. i& Lawr. Diet, 
 
 7. U. S. V. Le Baron, 19 How. (U. S.> 
 
 631 
 
Trader a Power. APPOINTMENT. . Execution— Assets. 
 
 although where it has been exercised without objection the ap- 
 pointment will be presumed to have been duly made.^ 
 
 Of Executors, Trustees, Receivers, etc. — See under their respective 
 heads. 
 
 Under a Power. (See also POWER.) — A power of appointment is 
 a right to limit a use, and as only the first use is executed by the 
 statute of uses, the estate or interest must be appointed imme- 
 diately to the object of the power, if it is desired to vest in him 
 the legal title.® The estate created by the instrument executing 
 the power takes effect as if originally created by the instrument 
 raising the power.^ However, as a general power enables the 
 donee to dispose of the estate as if he werei seized in fee thereof, 
 the period of the commencement of limitations in point of per- 
 petuity is the time of executing the power, and not that of raising 
 it ; otherwise in the case of a particular power, where, the donee 
 being restricted to designated objects, the validity of the estate 
 depends on whether it would have been valid if limited in the 
 original instrument.* 
 
 Maimer of Executing.r— How and by what instrument the ap- 
 pointment is to be executed is generally determined by the in- 
 strument raising the power, the provisions of which must be 
 strictly complied with.^ Equity, however, will relieve in some 
 cases of defective execution ; * and where the power is exercised 
 in excess, i.e., in favor of more than the proper objects, it will, 
 nevertheless, be a valid appointment quoad those objects.'' A 
 prior appointment takes effect before a subsequent one, and if 
 together they are excessive, the loss falls on the latter appointee.* 
 A general disposition, not referring to the power of appointment, 
 may be a good execution of it, where the context shows that it 
 is so intended, as where the donee has no other property.® 
 
 Assets. — The exercise of a general power of appointment renders 
 the property appointed equitable assets, and the demands of the 
 creditors thereon are to be satisfied before those of legatees or 
 appointees.^" 
 
 73; U. S. o. Stewart, 19 How. (U. S.) 79; 6. In favor of a purchaser, mortgagee. 
 
 Conger v. Gilmer, 32 Cal. 75; State v. lessee, creditor, wife, legitimate child, 
 
 Allen. 21 Ind. 516; Justices v. Clark, i or marriage consideration, but not of a 
 
 T. B. Mon. (Ky.) 82. natural child, grandchild, brother, volun- 
 
 1. Callison v. Hedrick, 15 Gratt. (Va.) teer, settlor, etc. Sugd. on Pow. 533-5. 
 244; Carter z;. Sympson. 8 B. Mon. (Ky.) 7. Sadler v. Pratt, 5 Sim. 632; Harvey 
 155; Spaulding v. Vincent, 24 Vt. 501. v. Stracey, i Drew, 73. 
 
 2. Sugd. on Pow. igo. 8. Trollope v. Routledge, i De Gex & 
 
 3. Smith V. Garey, 2 Dev. & B. (N. C.) Sma. 662. 
 
 Eq. 42. 9. Mory v. Michael, 18 Md. 227; Foes 
 
 4. Sugd. on Pow. 394-6. v. Scarf, 55 Md. 301; Hutton v. Benkard, 
 
 5. Porter v. Thomas, 23 Ga. 467; Has- 92 N. Y. 295; White v. Hicks, 33 N. Y. 
 lenw. Kean, 2 Tayl. (N. C.) 279; Horwitz 383; Baird v. Boucher, 60 Miss. 326; 
 V. Norris, 49 Pa. St. 213; Jarnaqui v. Weir w. Smith. 62 Tex. i; Claflin z/. Van 
 Conwav, 2 Humph. (Tenn.) 50; Behtham Wagoner, 32 Md. 252; Bishop v. Remple, 
 71 Smith, I Cheves (S. C), 33; Moore v. 11 Ohio St. 277; Bilderback v. Boyce, 14 
 Dimnnd, 5 R. I. I2i; Noel v. Harvey, S. C. 528; Munson v. Berdan. 35 N. J. 
 29 Miss. 72; Cummings v. Parish, 39 Eq. 376; Yates v. Clark, 56 Miss. 212; 
 Miss. 412; Stuyvesant v. Neil, 67 How. Blake v. Hawkins, 98 U. S. 315. 
 
 Pr. (N. Y.) 16. 10. Lassels v. Lord Cornwallis, 2 Vern, 
 
 633 
 
Exclusive. APPOINTMENT— APPORTIONMENT. Definition. 
 
 Exclusive and Illusory Appointments. — A power of appointment to 
 several objects or to any of them exclusively is called a power of 
 exclusive appointment. Where, by the terms of the instrument 
 raising the power, none of the objects can be excluded, and a 
 merely nominal share is appointed to one or more of them, such 
 an appointment is termed illusory, and a court of equity will in- 
 terfere in order to ascertain what proportion each is entitled to.^ 
 
 APPOETIONMENT.** (See also ANNUITY ; BANKRUPTCY ; CON- 
 TRACT ; Contribution; Corporations; Costs; Damages; 
 Debtor and Creditor ; Equity ; Estates ; Incumbrances ; 
 Insolvency; Interest; Landlord and Tenant; Rent; 
 Rent-charge; Rent-service ; Taxes; Wages.) 
 
 I. Definition. 2. Use of the Term. 
 
 Definition. — Apportionment is the division or distribution of 
 a subject-matter into proportionate parts. ^ 
 
 Use of the Term. — There are three kinds of apportionment 
 known to the law. 
 
 A. Apportionment of Rights. — Rights may be apportioned in 
 two ways : in respect of the fulfilment of the conditions which 
 give rise to the right, as in the' case of contracts ; 4 and in respect 
 of the specific thing out of which the right issues, as where the 
 owner of a rent acquires a portion of the land out of which the 
 rent issues.** 
 
 B. Apportionment of Liabilities, e.g.. Damages, Incumbrances, 
 etc. — In this sense the term is rather loosely used to denote con- 
 
 465; Johnson v. Cushing, 15 N. H. 298; 4. A contract is said to be apportion- 
 
 Tallmadge v. Sill, 21 Barb. (N. Y.) 51; 4 able when the amount of the considera- 
 
 Kent. 339. See Cutting v. Cutting, 20 tion to be paid by the one party depends 
 
 Hun (N. Y.), 360. upon the extent of the performance by 
 
 1. The rule in equity on this subject the other. 2 Pars. Contr. *520. 
 
 has been abolished in England by the i If, on the other hand, the contract is 
 
 Wm. IV. c. 46, by which an illusory ap- entire, complete performance alone gives 
 
 pointment is made a valid execution of a a right to the consideration, and there 
 
 power, where the instrument creating it can be no apportionment. i Story's 
 
 doesnot declare the amount from which no Equity, §§470^^ seq.; Pars. Contr. *520- 
 
 object shall be excluded. The doctrine has 522; i Washburn on Real Prop., 133, 
 
 also been disapproved of in some of the 549, 555; 2 Washburn on Real Prop. 
 
 States. Fronty v. Fronty, i Bail. Eq. 302. 
 
 (S. C.) 529; Cowles V. Brown, 4 Call. (Va.) The apportionment acts of 11 Geo. II. 
 
 477; Aleyn v. Belchier. i Lead. Cas. Eq., c. 19, § 15; 4 and 5 Will. IV. c. 22, and 
 
 note; Graeff v. De Turk, 8 Wright (Pa.), 33 and 34 Vict. t. 35, have greatly modi- 
 
 527. fied the strict common-law rule as to entire 
 
 2. The various kinds and instances of contracts, especially with regard to the 
 apportionment are best studied as they apportionment of annuities, rents, divi- 
 occur in connection with the subjects dends, interest, salaries, wages, etc., in 
 mentioned in the cross-references. All respect of time. Similar statutes exist 
 that is attempted here is a general ex- to some extent in the United States, 
 planation of the use of the term. 5. A rent-service was always appor- 
 
 3. Bouvier's Law Diet. Coke's defi- tionable under such circumstances, but a 
 nition is " This commeth of the word rent-charge was extinguished, unless the 
 portio, quasi partio, which signiiieth a acquisition of the land was by operation 
 part of the whole; and apportion signi- of law. Co. Litt. 147, b; Viner's Abr. 
 fiethapartitionof a rent, common, etc., or " apportiontnent ;" 2 Washburn on Real 
 a making of it into parts." Co. Litt. 147, b. Prop. 302, n. 
 
 633 
 
'Constructions. 
 
 APPRAISE— APPRAISEMENT. 
 
 Definition. 
 
 tribution by different persons, having different rights, towards the 
 discharge of a common burden or charge. ^ 
 
 C. Apportionment of Representatives and Taxes^ 
 APPRAISE— APPRAISERS. (See also APPRAISAL; APPRAISE- 
 MENT.) — To set a price upon ; to value ; to find the market value 
 
 Of.3 
 
 APPRAISEMENT.— Definition.— The act of appraising, i.e., set- 
 ting a value upon, estimating the worth of, especially by persons 
 appointed for that purpose.* 
 
 Commission of Appraisement. — On seizure of treasure-trove, wrecks, 
 waifs, and estrays, after an information had been filed in the 
 Exchequer, a proclamation for the owner and a commission of 
 appraisement to value the goods were issued at the same time. 
 On the return of the latter, and after a second proclamation, the 
 goods were condemned to the use of the crown.** 
 
 Kinds of Appraisement. — In modern times appraisements are very 
 common in connection with legal proceedings. The following 
 cases may be enumerated as among the most important : 
 
 Decedents Estate. — Executors and administrators are obliged, 
 within a time appointed bylaw, to have the goods of the decedent 
 appraised and an inventory thereof filed.® 
 
 Wilson V. Maxwell, 2 Blatch. (U. S.) 316, 
 321. See Grinnell v. Lawrence, i Blatch. 
 (U. S.) 346. 
 
 Where a statute read, " The selectman 
 shall appraise all taxable property at its 
 full and true value in money," the words 
 " full and true value in money" were held 
 to be words of description and superflu- 
 ous, and that if these words had been 
 omitted the statute would have had the 
 same meaning. An appraisal of prop- 
 erty signifies a valuation of it, or an esti- 
 mation of its value, at its true worth. . 
 CochecoCo. v. Strafford, 51 N. H. 455,482. 
 
 Appraiser. — An appraiser must be an 
 impartial and disinterested person. It is 
 not necessary that these words should \x 
 used in the agreement for their appoint- 
 ment. An award made where one of the 
 appraisers was the brother and business 
 agent of the party choosing him should 
 be set aside. Poole v. Hennessy, 39 
 Iowa, 192. 
 
 The words " sworn appraisers" in the 
 statute, 2 W. & M. sess. I, c. 5,, s. 2, 
 merely means two indifferent persons 
 who are sworn to appraise the goods dis- 
 trained according to the best of their un- 
 derstandings. They must be persons 
 who are reasonably competent, but need 
 not be professional appraisers. Roden 
 V. Eyton, 6 M. G. & Scott, 427. 
 
 4. Webster's Diet. 
 
 6. 3 Black. Com. 262. 
 
 6. Williams on Executors (6tb Am. 
 Ed.), pp. 1040-1053. 
 
 1. I Washburn on Real Prop. 130, 
 549; 2 Washburn on Real Prop. 209; 1 
 Story's Equity, §§ 470, 477. 478. iThe 
 equitable remedy of contribution was 
 often employed to effect this species of 
 apportionment. 
 
 Under this second head come appor- 
 tionment of calls upon the stock of a 
 corporation, apportionment of the debts 
 of a corporation among persons individ- 
 ually liable, etc. 
 
 2. Representatives in the Congress of 
 the United States are apportioned among 
 the several States, according to their re- 
 spective numbers, excluding Indians not 
 taxed, and not exceeding one representa- 
 live for every thirty thousand inhabi- 
 tants, but each State may have at least 
 one representative. The apportionment 
 is based on the decennial census. U. S. 
 Const, art. i, sec. 2; art. 14, sec. 2; U. 
 S. Rev. Stat. §§ 20, 21. 
 
 The various State constitutions provide 
 for the apportionment of representatives 
 in the State legislatures. 
 
 3. Appraised Value. — In construing the 
 United States Tariff Act of July 30, 1846 
 (9 U. S. Stat, at Large, 42), the court 
 said; " The appraised value, as used in 
 this act of 1846, and in that of August 30, 
 1842, and indeed in all the revenue acts, 
 means the value of the goods, to be esti- 
 mated and ascertained by the appraisers, 
 either according to the 'actual cost,' 
 ' actual value,' or ' market value,' as the 
 case may be, exclusive of charges." 
 
 634 
 
Kinds of APPRAISEMENT. Kinds of. 
 
 Executions. — After the levy of real estate on execution and 
 prior to sale, an appraisement, generally by three persons, is 
 directed to be made by statute in many of the States.^ 
 
 Efnincni Domain. — Where private property is taken for public 
 uses by the right of eminent domain, an appraisement is made and 
 damages assessed by a jury or by commissioners, according to the 
 regulations of local statutes.* 
 
 Arbitration Proceedings. — In these an appraisement of goods in 
 dispute is frequently necessary. But there is a diversity of opinion 
 as to whether, when there is no dispute, the appraisement by ref- 
 erees appointed for the sole purpose of Valuing the goods has or 
 has not the force of an award. ^ 
 
 Taxation. — In the case of lands or goods subject to taxation, 
 the proportion of the tax is determined by an appraisement of 
 their value made by assessors appointed for that purpose.* 
 
 Dutiable Goods. — An appraisement of all goods subject to 
 import duties is made by the customs officers in accordance with 
 the jirovisions of the United States statutes.^ 
 
 Revenue Laws, Prize, etc. — An appraisement is made where 
 goods are seized for violation of revenue laws;* in prize cases, 
 where the vessel captured is not in a condition to be sent into port 
 for adjudication ;'' where property is taken for the use of the 
 United States,^ and in other similar cases.' 
 
 Leases. — A covenant for the renewal of a lease frequently con- 
 t;iins a condition that the amount of the new rent as determined 
 by the value of the premises at the end of the expired term, 
 allowing for improvements, etc., shall be settled by an appraise- 
 ment made by disinterested parties.^" 
 
 Admiralty Cases. — In admiralty suits in rem the court may, on 
 the application of the claimant, order the property to be delivered 
 to him after a due appraisement under the direction of the court, 
 on his entering security or paying money into court to abide the 
 result of the suit.^* 
 
 1. Appraisement statutes are strictly Gomez, 9 Wend. (N. Y.) 649; Leeds v. 
 construed in New England, and if not Burrows, 12 East, i; Jenkins ». Betham, 
 complied with the levy is void. Russell 24 L. J. C. P. 94; Scott v. The Liverpool 
 V. Dver, 40 N. H. 173; Ellison v. Wilson, Corp.. 28 L. J. Ch. 230; Russell on Arb. 
 36 Vt. 160; Russ V. Oilman, 16 Me. 299; (3d Ed.) p. 43. 
 
 Bradley v. Bassett, 2 Cush. (Mass.) 417; 4. Cooley on Taxation, ch. xii. 
 
 Chamberlains. Doty.i8Pick.(Mass.)4g5. 6. See Rev. Stat. U. S. of 1878, tit. 
 
 In other States they may be waived by xxxiv., ch. vi. 
 
 the debtor. Stockwe'll v. Byrne, 22 Ind. 6. Rev. Stat. (1878) §§ 3459, 3460. 
 
 6; Wray v. Miller, 20 Pa. St. in; Lessee 7. Act of June 30, 1864, c. 174, § 1, 
 
 V. Parrish, 3 Ohio, 187; New Orleans p. 306. 
 
 Ins, Co. V. Bagley, 19 La. Ann. 89. See 8. Act of June 30, 1864, c. 174, § 27, 
 
 Herman on Executions, §§ 197, 257. p. 314- 
 
 2. Dillon on Munic. Corp. (3d Ed.) 9. See Rev. Stat. (1878) §§ 993, 3187, 
 §§ 618-625. 3331. 4626, 4871- 
 
 3. It has been held to hkve such force 10. See Wood on Landlord and Tenant, 
 in Underbill v. Van Cortlandt, 2 Johns. § 416. 
 
 Ch. (N. Y.) 339, and 17 Johns. Ch. 405; 11. 2 Parsons on Ship. & Adm. p. 416. 
 Smith V. R. Co.. 36 N. H. 458. But see, And such appraisement is conclusive. 
 contra, Garred r. Macpv, 10 Mo. 161; The Cargo /■x Venus, Law Rep. i Adm. 
 Curry v. Lackey, 35 Mo. 389; Garr v. 50. 
 
 635 
 
Definition. 
 
 APPREHEND— APPRENTICES. 
 
 Definition. 
 
 APPREHEND. (See also Arrest ; Warrant.)— To take hold 
 off, whether with the mind, and so to conceive, believe, fear, 
 dread; or actually and bodily, and so to take a person on a crimi- 
 nal process ; to seize ; to arrest.^ 
 
 APPRENTICES. — 1. Definition. — An apprentice is a person bound 
 by contract to serve another person in some trade, business, or 
 profession, the latter persojj being also bound by contract to in- 
 struct him in the mysteries of such trade, business, or profession.* 
 
 2. Common Law. — Contracts of apprenticeship were known to 
 the common law, and were of especial importance in the city of 
 London, where there were certain customs affecting apprentice- 
 ship.* In the reign of Queen Elizabeth a statute was passed reg- 
 ulating apprenticeship throughout England, except in the city 
 of London and elsewhere, where local customs existed.* At the 
 present time the entire subject is, in most jurisdictions, controlled 
 by statute. 
 
 3. Who may Take an Apprentice. — Any person exercising some 
 trade, business, or profession,^ who is sui juris, may take an ap- 
 prentice.* 
 
 4. Who may be aii Apprentice. — Any person, whether an infant 
 or of age, may be bound as an apprentice.'' 
 
 5. Formalities — Requisite of Contract. — The relation of master and 
 apprentice can only be created by formal instrument. At com- 
 
 1. The Alabama statute forbidding the 
 carrying of concealed weapons permits 
 the doing so where any person has "good 
 reason to apprehend an attack." (Code, 
 § 4109, of 1876); Hardin z;. State, 63 Ala. 
 38. 
 
 The apprehension must, however, be 
 founded on good reason; and the court 
 properly refused to charge the jury " that 
 if they believe from the evidence that the 
 defendant had reason to apprehend an 
 attack, -they must acquit him." Baker v. 
 State, 49 Ala. 350. 
 
 Where an act of Congress "for the 
 punishment of certain crimes, etc." (vol. 
 i. p. 103, § 8) provides that "the trial of 
 crimes committed on the high seas, or in 
 any place out of the jurisdiction of any 
 particular State, shall be in the district 
 where the offender is apprehended or into 
 which he may first be brought," it was 
 held that the word " apprehend " does not 
 imply a; legal arrest to the exclusion of a 
 military arrest or seizure. Ex parte 
 Bollman and Swartout, 4 Cranch S. C. 
 (U. S.), 75. 
 
 2. The word "apprentice need not be 
 used in the contracts. Kingw. Rainham, 
 I East, 531. 
 
 Housewifery is a "mystery" within the 
 meaning of a statute permitting the ap- 
 prenticing of children to be taught some 
 
 "art, trade, or mystery." Common- 
 wealth V. Jennings, I Browne (Pa.), 197. 
 The word "trade," as used in 5 Eliz. 
 ch. 4, § 31, only includes trades known 
 at the time the statute was passed. 6 
 Bac. Abr. 521. 
 
 3. Com. Dig. "London," N. 2; Bohun 
 Priv. Lond. 175 et seq. 
 
 4. 5 Elizabeth, ch. 4. 
 
 5. By 5 Eliz. c. 4, §§ 25-30, limiia- 
 tions were placed upon the right of taking 
 apprentices. Thus, it was provided that 
 the master must be a householder, in case 
 of an apprenticeship to learn a trade. 
 Wood Master and Servant (2d Ed.). § 40. 
 
 6. No one under a disability prevent- 
 ing him from binding himself by contract, 
 can assume the relation of master. 
 Wood Master and Servant (2d Ed.), § 40. 
 
 A married woman cannot take an ap- 
 prentice. Rex V. Guildford, 2 Chitty, 
 284. (It is otherwise where by statute 
 she can contract. Eraser Master and 
 Servant, 447 ; Wood Master and' Servant 
 (2d Ed.), §40. 
 
 Nor can an infant. Rex v. Petrox, 4 
 T. R. ig6 ; Wood Master and Servant 
 (2d Ed.), § 40. • ' But the articles in such 
 case are not void, but only voidatile. and 
 hence a settlement may be gained under 
 them. Rex v. Petrox, 4 T. R. 196. 
 
 7. King V. Arnesby, 3 B. & Aid. 584. 
 
 630 
 
Formalities — Contract. 
 
 APPRENTICES. 
 
 Pauper Apprentices 
 
 1. Castor V. Aides, 
 V. Ditchingham, 4 T. 
 
 mon law a writing under seal seems to have been sufficient. * But 
 by the statute of 5 Eliz. c. 4, and by most modern statutes, inden- 
 tures are required.'-* 
 
 6. Pauper Apprentices. — Provision is ordinarily made by statute 
 for empowering the overseers of the poor, or other officers, to bind 
 out poor orphan children, or the minor children of paupers. This 
 
 C. L. § 342. Wood Mast. & Ssrv. (2d 
 Ed.) § 60; Butler v. Hubbard, 5 Pick. 
 (Mass.) 250, 254; Taylor's Case, i Brpwn„ 
 Pa. Append. 73; Guthrie v. Murphy, 4 
 Watts (Pa.), 80; Welborn w. Little, i 
 Nott & Mc. (S. Car.) 263. 
 
 A contract by a parent, engaging that 
 his son shall serve under a contract of 
 apprenticeship, void as to the infant, be- 
 cause not within the statute, is not void 
 as against public policy. Van Dorn v. 
 Young, 13 Barb. (N. Y.) 286. 
 
 In Day v. Everett, 7 Mass. 145, inden- 
 tures not conforming to the statute, were 
 held to constitute a valid common-law as- 
 signment by the father of his child's ser- 
 vices. 
 
 Where the son serves under void inden- 
 tures, executed by overseers of the poor, 
 the father may sue the master at any 
 time for the services rendered. Reidell 
 V. Morse, 19 Pick. (Mass.) 358. 
 
 The indentures must require the mas- 
 ter to perform all duties designated by 
 the statute, but the fact that they include 
 more duties, does not render them invalid. 
 Cochran v. Davis, 5 Litt. (Ky.) 118. 
 
 Where the statute requires that the ap- 
 prentice must be bound to some trade, 
 the indentures will be invalid if they fail 
 to specify the trade. In re Goodenough, 
 19 Wis. 274. But otherwise, when the 
 statute authorizes apprentices to be bound 
 to any lawful business. Bowes v. Tib- 
 bets, 7 Me. 457; Fowler o. HoUenbeck, 
 9 Barb. (N. Y.) 309. 
 
 Failure by a master to record inden- 
 tures, in compliance with the require- 
 ments of the statute, renders the appren- 
 ticeship avoidable, at the option of the 
 apprentice, until they are recorded. 
 Haber v. Heis, Wright (Ohio), 19. 
 
 The avoidance by apprentice must be 
 established by an act showing unequivo- 
 cally an intention to determine. Merely^ 
 absenting himself a few days from his 
 master's employment, will not prove an 
 avoidance. Wood, Mast. & Serv. (2d 
 Ed.) §48; Hudson v. Worden, 39 Vt. 
 382; Wray ii. West, 15 L. T. N. S. 180 
 
 Quitting the master's service, and en- 
 gaging in work elsewhere, is a sufficient 
 avoidance by an apprentice of avoidable 
 contract of apprenticeship. Page. v. 
 Marsh, 36 N H. 305; Brown v. Whitte- 
 more, 44 N. H. 369. 
 
 I Salk. 68 ; Rex 
 R. 769; Rex V. 
 Mawnan, Burr. (Set. Cas.), 290; Peters 
 ■v. Lord, 18 Conn. 337. See Crombie v. 
 McGraih, 139 Mass. 550. 
 
 2. Aldridge v. Ewen, 3 Esp. 188 ; Rex 
 V. Stratton, i Botts P. L. C. 526 ; Rex 
 V. Whitchurch, i Botts P. L. C. 527 ; 
 Phelps V. Pittsburgh, etc., R. Co., 99 Pa. 
 St. 108. See Ark. Dig. of Stat. §§ 236, 
 237; Dak. Civil Code, § 140; Del. Laws, 
 ch. 79. § 5; Ga. Code, § 1877; 111. R. S. 
 Ch. 9, § 8; Mass. P. S. ch. 149, § 5; N. 
 Car. Code, § 9; Oreg. Laws, ch. 13, Tit. 
 III. § 39; Pa. Brightley's Pur.'Dig. p. 77, 
 §§ 5, 6; S. Car. Gr. S. § 2072; R. I. R. S. 
 Tit. 44, ch. 169 §1; Tehn. Code, 1884, 
 §3431; Utah C. L. Tit. i5, ch. 4, § i; 
 Vt. R. L., 1880, § 2516; Wis. R. S. 1878, 
 
 § 2379- 
 
 When the articles fail to conform to the 
 formal requirements of the statute, they 
 are voidable by the apprentice at his op- 
 tion. Page V. Marsh, 36 N. H. 305 ; 
 Brown v. Whittemore, 44 N. H. 369; 
 Fowler ti. Hollenbeck, 9 Barb. (N.Y.)309. 
 
 No one else can take advantage of 
 formal defects in the indentures. Page v. 
 Marsh, 36 N. H. 305 ; Fowler v. Hollen- 
 beck, 9 Barb. (N. Y.) 309. See In re 
 M'Dowles, 8 Johns. (N. Y.) 328; Wood 
 Master and Servant (2d Ed.), § 47. 
 
 An agreement in writing, not under 
 seal, was made, by which a minor was 
 bound by his father to a master for a 
 certain time, and the master agreed to 
 teach him a certain art. Subsequently 
 the master sold his business, and the 
 father agreed to continue the agreement 
 with the successor. The son afterwards 
 had an opportunity to work for some one 
 else, and his then master released him 
 from his apprenticeship, in consideration 
 of the father giving a promissory note for 
 a certain sum, payable to the master. 
 Held, that although the agreement of 
 apprenticeship did not comply with the 
 statutory requirements, it was good at 
 common law, and that the note was given 
 for a sufficient consideration. Crombie 
 V. McGrath, 139 Mass. 550. 
 
 Under many statutes, however, in- 
 dentures not conforming to the statu- 
 tory provisions are expressly made void. 
 See Dak. Civil Code, § 152; Del. Laws, 
 ch. 79, § 80; 111. R. S. ch. 9, § 3; Kan, 
 
 637 
 
Tarties. 
 
 APPRENTICES. 
 
 Duties of master. 
 
 power, being purely statutory, can be exercised only by such 
 officer as the statute specifies, upon such persons as come within 
 the statutory provisions, and in such manner as the statute directs.^ 
 
 7. Parties. — At common law the person to be bound as appren- 
 tice was a necessary party to the indentures.'-* 
 
 8. Duties of Master to Apprentice.— The duties of the master to 
 the apprentice are also, to a large extent, dependent upon the 
 covenants of the indentures.^ But he is bound, in every case, to 
 instruct the apprentice in the trade or business in which the 
 apprentice is articled to him.* And in the absence of a special 
 agreement to the contrary, to furnish him with clothes, food^ and 
 lodging, if the apprentice lives with him. Also with necessary 
 medical aid.^ A master stands in loco parentis to a minor appren- 
 tice, and must have a care to his moral training and to his health, 
 diet, and safety.* 
 
 1. Butler V. Hubbard, 5 Pick. (Mass.) 
 ■250, 254; Reidell v. Morse, 19 Pick. 
 •(Mass.) 358; Whitmore v. Whitcomb, 43 
 Me. 458; Howry v. Calloway, 48 Miss. 
 587; Com. V. Roach, i Ashm. (Pa.) 27; 
 Smith V. Elwood, 4 Cranch(U. S. C. Ct.), 
 .670; Brewer z/. Harris, 5 Gratt. (Va.) 285; 
 Squires v. Whipple, I Vt. 69. 
 
 2. A father has, at common law, no au- 
 thority to bind out his infant child. T{ie 
 ■child must execute the indentures him- 
 .self. King v. Arnesby, 3 B. & Aid. 584; 
 King V. Ripon, 9 East, 295. 
 
 It has been said that an infant could 
 not bind himself unless his parent or 
 giiardian joined in the indentures. Har- 
 ney V. Owen, 4 Blackf. (Ind.) 337. Corn- 
 fare In re M'Dowles, 8 Johns. (N.Y.)328. 
 It was always customary for the parent 
 or guardian to join. 
 
 In many States, by statutory provision, 
 the infant is the person to bind himself 
 •out. See Iowa Code, § 2282; Kan. C. L. 
 § 332; La. R. S. § 71; N. J. Rev. "Ap- 
 prentices," §1; N. Y. R. S. pt. 2, Tit. 4, 
 art. I, § i; Ohio R. S. § 3118; Wis. 
 H. S., 1878, § 2377. Arkley v. Hor- 
 kins, 14 Johns. (N. Y.) 374; In re Mc- 
 Dowles, 8 Johns. (N. Y.) 328; Guthrie ». 
 JMurphy, 4 Watts (Pa.), 80. 
 
 In such States there is almost always a 
 ■statutory provision that the consent of 
 the parent or guardian shall be ex- 
 pressed in the indentures and evidenced 
 by his signing them. See reference to 
 statutory provisions in preceding para- 
 graph. Arkley v. Horkins, 14 Johns. 
 (N Y.) 374; In re M'Dowles, 8 Johns. 
 <N. Y.) 328; Guthrie v. Murphy, 4 Watts 
 <Pa.), 80. 
 
 In many jurisdictions, however, the 
 parent or guardian is given power to 
 l)ind out an infant. See p. 637, n. 2. 
 
 In such jurisdiction the statutes gene- 
 rally require the consent of the infant, 
 if over a certain age, to be stated in 
 the indentures -and evidenced by his 
 signing them. See McClue Dig. (Fla.) 
 ch. 4, § 3; 111. R. S. ch. 9. § i; Me. R. S. 
 1883, ch, 62, § 2; Mass. P. S. ch. 149, §§ 
 I. 2, and 3; Oregon Laws, chap. 13, Tit. 
 III. § 36; Utah C. L. Tit. 16, ch. 4, § i; 
 Vt. R. L., 1880, § 2511; W. Va. R. S. 
 ch. 133, § I. Wood Mast. & Serv. (2d 
 Ed.) § 42; Commonwealth v. Moore, i 
 Ashm. (Pa.) 123; Hudson v. Worden, 
 39 Vt. 382; Harney v. Owen, 4 Blackf. 
 (Ind.) 337; Balch v. Smith, 12. N. H. 437. 
 
 Neither the signature of the infant, 
 without a clause in the indentures ex- 
 pressing his assent (Wood Mast, and 
 Serv. (2d Ed.) § 43; Harper v. Gilbert, 5 
 Cush. (Mass.) 417), nor such a clause 
 without the infant's signature to the in- 
 dentures (Commonwealth v. Atkinson, 8 
 Phil. (Pa.) 375), is sufficient. Both are 
 necessary. 
 
 Where statute requires the parent to 
 bind infant as apprentice, and infant to 
 give his assent, indentures by which in- 
 fant binds himself and his mother assents 
 are void. Whitmore v. Whitcomb, 43 
 Me. 458. 
 
 A testamentary guardianship being a 
 personal trust, not to be delegated, it 
 seems that such a guardian cannot bind 
 out his ward as apprentice. Balch v. 
 Smith, 12 N. H. 437. 
 
 3. Wood Mast. & Serv. (2 Ed.) § 49. 
 
 4. Wood Mast. & Serv. (2d Ed.) § 49. 
 
 5. Rex V. HalesOwen. ii Mod. 278; 
 Reg. V. Smith, 8 C. & P. 153; Easley v. 
 Craddock. 4 Rand'. (Va.) 423. 
 
 6. See Iowa Code, § 2286; Utah C. L. 
 Tit. 16, ch. 4, § 3; Wood Mast. & Serv. 
 (2d Ed.) p. 60, n. 3; Coventry v WooO 
 
 638 
 
Term. 
 
 APPRENTICES. 
 
 Dissolution. 
 
 9. Right of Master to Punish. — A master has a right to , correct 
 and punish a minor apprentice for misconduct. He may even 
 chastise him.* But this right is purely personal, and cannot be del- 
 egated.* It must be exercised witli discretion and moderation.* 
 
 10. Apprehension of Truant Apprentice. — Statutes upon appren- 
 ticeship commonly provide for the apprehension of truant and 
 refractory apprentices, and their commitment until they shall be- 
 come tractable.* 
 
 11. Term of Apprenticeship. — Under the statute of 5 Elizabeth, 
 c. 4, and according to the custom of London, the term of service 
 must be at least seven years. ^ 
 
 An infant apprentice became emancipated on reaching twenty- 
 one, and could leave his master's service, although the term fixed 
 by the indentures had not expired." 
 
 13. Dissolution of Apprenticeship. — Statutory provision is usually 
 made for a dissolution of the apprenticeship and a cancellation of 
 the indentures, on application of either party, for misconduct or 
 breach of duty by the other.' 
 
 But it seems that the misconduct or breach of duty of neither 
 party will justify the other in himself determining the appren- 
 ticeship and withdrawing from his relation of master or appren- 
 tice, without an'order of court.* 
 
 hall, Hob. 134, a; Hull v. Gardner, i 
 Mass. 172. 
 
 Indentures of apprenticeship do not 
 give the master any higher rights, or 
 greater control, over a female appren- 
 tice than such as the parent could legally 
 exercise, and are, therefore, not void as 
 being in restraint of marriage. Dent v. 
 Cock. 65 Ga. 400. 
 
 1. Wood Slast. & Serv. (2d Ed ) p. 68, 
 n. 5; I Blk. Comm. p. 42S; Blake v. 
 Grove. 4 Keb. 65r, pi. 50. 
 
 2. People V. Phillips, i Wheel. Cr. Ca. 
 (N. Y.) 155. 
 
 3. People V. Sniffen, i Wheel. Cr. Ca. 
 (N Y.) 502. 
 
 4. It is stated that a master has this 
 right at common law.. Wood Mast. & 
 Serv. (2d Ed.) § 58. 
 
 5. Com. Dig. London, N. 2. 
 
 6. Cuming v. Hill. 3 B. & Aid. 59; 
 Coglilan V. Callaghan, 7 Ir. C. L. R. 291; 
 Drew V. Peckwell. i E. D. Smith (N. Y.), 
 408; Forsyth v. Hastings, 27 Vt. 646; 
 Walker's Admr. v. Chambers, 5 Harr. 
 (Del.) 311. 
 
 Upon the question whether the appren- 
 ticeship is determinable by reason of the 
 apprentice having become of age, the 
 master is bound by the statements as to 
 the apprentice'.? age appearing in the 
 indentures. McCutchin v. Jamieson, i 
 Cranch (U. S. C. Ct.), 348. 
 
 But the apprentice is not. Drew v. 
 -Peckwell, i E. D. Smith (N. Y.), 408; 
 Hooks V. Perkins, Busb. L. (N. Car.) 21. 
 
 The terra begins from the date of the 
 indentures, and not from the actual date 
 of entering service. Wood Mast. & Serv. 
 (2(1 Ed.) p. 692. 
 
 7. A court will discharge the apprentice, 
 on application of his master, for serious 
 misconduct, operating as a breach of the 
 indentures. Wood Mast. & Serv. (2d 
 Ed.) /p. 91; Powers v. Ware, 2 Pick. 
 (Mass.) 451; Sheppard v. Murdstone, 10 
 Mod. 144. 
 
 Dishonesty or immorality of the ap- 
 prentice is a valid ground for a court to 
 order the dissolution of an apprenticeship. 
 Hawkesworth v. Hillary, i Saund. 314; 
 Powers V. Ware, 2 Pick. (Mass.) 452. 
 
 8. Watkins v. Edwards, Vent. 175. 
 
 It seems quite clear that, in general, 
 misconduct on the part of the apprentice 
 will not justify the master in turning him 
 away. His only course is to apply for 
 an order of discharge. Wood Mast. & 
 Serv. (2d Ed.) p. 90; Powers v. Ware, 2 
 Pick (Mass.) 451; Wise v. Wilson, i C. 
 & K. 662; Mercer v. Whall, 5 Q. B, 447. 
 
 Even dishonesty on the part of an ap- 
 prentice will not justify his masterin turn- 
 ing him away. Phillips v. Clift, 4 H. & 
 N. 168. 
 
 But his conviction of felony proba- 
 blv would. Phillips v. Clift. 4 H. & N. 
 168. 
 
 By the custom of London a master 
 may turn away his apprentice for gam- 
 ing. Woodroffe v. Farnham, 2 Vern. 
 291. 
 
 639 
 
Death. 
 
 APPRENTICES. 
 
 BemovaL 
 
 An apprenticeship may be terminated by the joint agreement 
 of all parties to the indentures.^ 
 
 13. Death of Master or Apprentice. — The relation of master and ap- 
 prentice, being a purely personal one on both sides, is of necessity 
 terminated by the death of either the master or the apprentice.'-* 
 
 The death of either master or apprentice also determines such 
 covenants as are purely personal — such as the covenant to serve 
 or the covenant to leave.^ 
 
 But not covenants not personal in their nature. Hence the 
 death of the master does not determine his covenant to furnish 
 board and lodging during the term.* 
 
 14. Removal. — The removal of the master out of the jurisdiction 
 justifies the apprentice in withdrawing from his master's service.* 
 
 So does the sending of apprentices out of the jurisdiction.® 
 
 An apprentice is justified in leaving his 
 master when the latter has treated him 
 with great cruelty or inhumanity. Mc- 
 Grath v. Herndon, 4 T. B. Mon. (Ky.) 
 480; Coffin V. Bassett, 2 Pick. (Masis.) 
 
 357. 
 
 Of has teen guilty of grossly immoral 
 or improper conduct, such as would fur- 
 nish an evil example to the apprentice. 
 Wood Mast & Serv. (2d Ed.) § 49; Ber- 
 ry V. Wallace, Wright (Ohio), 657; War- 
 ren V. Smith, 8 Conn. 14; Commonwealth 
 V. St. German, i Browne (Pa,), 24. 
 
 The incurable illness of the apprentice 
 is no sufficient ground for a court to dis- 
 solve the apprenticeship. Rex v. Hales- 
 Owen. I Stra. gg. 
 
 1. Graham v. Graham, i S. & R. (Pa.) 
 330. 
 
 A court of equity will dissolve an ap- 
 prenticeship where the execution of the 
 indentures was procured by fraud. Webb 
 V. England, 2g Beav. 44. See Mitchell 
 V. McElvin, 45 Ga. 558. 
 
 2. Wood Mast. & Serv. (2d Ed.) § 44; 
 Rex V. Peck, i Salk. 66; Cochran v. 
 Davis, 5 Litt. (Ky.) n8; Eastman v. 
 Chapman, i Day (Conn.), 30. 
 
 The apprenticeship is not determined 
 by the death of the parties if the articles 
 contain express provisions that it shall 
 not be. Wood Mast. & Serv. (2d Ed.) 
 
 §44- 
 
 The decease of the master renders the 
 apprenticeship voidable, not void. If the 
 apprentice continues to serve with the 
 administrator of deceased master, she 
 will be deemed to have served under the 
 indentures, and cannot recover compen- 
 sation for such services. Phelps v. Cul- 
 ver, 6 Vt. 430. 
 
 In England and Scotland a custom once 
 existed for the heirs or executors of a 
 deceased master to find a new master, 
 but this is contrary to the general law. 
 Wood Mast. & Serv. (2d Ed.) § 44. 
 
 3. Wood Mast. & Servt. (2d Ed.) § 
 44; Rex V. Peck, i Salk. 66; Cochran v. 
 Davis. 5'Litt. (Ky.) 118. 
 
 4. Wadsworih v. Gye, Sid. 216; Walker 
 ■V. Hall, I Sid. 117; Wood Mast. & 
 Serv. (2d Ed.) §44. 
 
 5. Coffin V. Bassett, 2 Pick (Mass.) 
 357; Lobdell v. Allen, g Gray, 337; Vick- 
 eree v. Pierce, 12 Me. 315; Walters v. 
 Morrow, i Houst. (Del.) 527. 
 
 If the infant consents to the removal, 
 follows his master,, and completes his 
 term of service, he cannot recover for 
 services rendered out of the jurisdiction, 
 as they will be deemed rendered under 
 the contract of apprenticeship. OIney 
 V. Myers 3 111. 311. 
 
 6. Randall v. Rotch, 12 Pick. (Mass.) 
 107; Commonwealth v. Edwards, 6 Binn. 
 (Pa.) 202; Commonwealth "v. Deacon, 6 
 S. &. R. (Pa.) 526; Coventry v. Wood- 
 hall, y{a\>. 134. 
 
 A right to remove the apprentice may 
 be implied from the nature of the business 
 or trade. Coventry v. Woodhall, Hob. 
 
 134. 
 
 The removal of the apprentice from the 
 State abrogates the indentures, . even 
 though consented to by the apprentice. 
 Commonwealth v. Deacon, 6 S. & R. 
 526; Commonwealth v. Edwards, 6 
 Binn. (Pa.) 202. 
 
 The removal of the apprentice from the 
 State will not determine the indentures 
 when consented to by both apprentice 
 and his parents. This consent may 
 be shown by parol. Burden v. Skinner, 
 3 Day (Conn.), 126. 
 
 A father consenting to the removal of 
 his child cannot withdraw that consent 
 and retake his child, without being liable 
 on his covenant that the child should 
 serve. Lobdell v. Allen, 9 Gray (Mass.), 
 
 377- 
 
 A custom that master may send his 
 apprentice out of the jurisdiction is void. 
 
 6a9a 
 
Assignment— Premium. 
 
 APPRENTICES. Habeas Corpus— Covenants. 
 
 14: Assignment. — The relation of the master to his apprentice 
 being one of personal trust and confidence, he cannot substitute 
 another in his place as master.^ 
 
 15. Premium^ — Upon dissolution of an apprenticeship by order 
 of court, if a premium was paid on executing the indentures, the 
 court may order the return of a proportionate part thereof.* 
 
 16. Habeas Corpns. — A writ of habeas corpus lies at the instance 
 of either parent or apprentice to release a person held as appren- 
 tice under void or avoided indentures.^ 
 
 17. Covenants. — Infant Apprentice. — In the absence of express 
 statutory provision, an infant apprentice, executing the inden- 
 tures, cannot be held liable on his covenants therein.* 
 
 Parent or Guardian. — A parent or guardian executing the inden- 
 tures as party thereto becomes bound for the faithful performance 
 by the apprentice of his duties as fixed by the covenants.'' 
 
 Randall v. Rotch, I2 Pick. (Mass.) 107; 
 Wood Mast. & Serv.(2d Ed.) § 46. 
 
 1. Wood Mast. & Serv. (2d Ed.) | 44; 
 Caisteri'. Eccles, i Ld. Rajm. 6S3; Rex 
 V. Bedford. 6 T. R. 452. 
 
 Where a master sells the service of his 
 minor apprentice for a valuable consid- 
 eration, although the apprentice be not 
 liable to si-rve. yet if he do serve the 
 master may sue for the consideration. 
 Nickerson v. Howard. 19 Johns. (N. Y.) 
 X13; Martin v. Rice. 2 Browne (Pa), igi; 
 Guilderland v. Knox. 5 Cow. (N. Y.) 
 363. Compare Walker v. Johnson. 2 
 Cranch (U. S. C. Ct.), 203. But not if 
 the minor absconds during the period 
 for which his services were assigned. 
 Davis V. Coburn, 8 Mass. 299. Compare 
 Martin v. Rice, 2 Browne (Pa.), 191. 
 
 An assignment with consent of the 
 
 minor, but without that of the parent, 
 
 makes the apprenticeship determinable 
 
 ' by the latter. Com. v. Leeds, i Ashm. 
 
 (Pa.) 405. See case under Removal. 
 
 Even though the apprentice assents to 
 the transfer, such a transfer will render 
 the articles avoidable at any time by 
 him Rex v. Bridgford, Burr. (S. C.) 
 133; Williams v. Finclj, 2 Barb (N.Y.)2o8. 
 
 Where all the parties consent to an as- 
 signment of the indentures, such assign- 
 ment is valid, and does not avoid the in- 
 dentures. Lobdell ». Allen, 9 Gray (Mass), 
 377; Com. V. Leeds, i Ashm. (Pa.) 405; 
 Rex V. Stockland, i Dougl. 70. 
 
 2. Therman v. Abell, 2 Vern. 64; 
 Stewart v. Davis, 11 Ir. L. R. ;4: Ex 
 parte Sundbv. I Atk. 149; Wood Mast. 
 & Serv. (2d Ed.) § 45: 4 Bac. Abr., title 
 Master and Servant. 566. 
 
 Where an apprentice dies during the 
 term, the master is not liable to refund 
 anv part of the premium. Whincup v. 
 Hughes, L. R. 6 C. P. 78; Wood Mast. 
 
 & Serv. (2d Ed.) § 62; Eraser Mast. & 
 Serv. 468; Derby v. Humber, L. R. 2 C. 
 P. 247. 
 
 3. U. S. V. Anderson, Cooke (Tenn.), 
 143; Commonwealth v. Robinson, i S. & 
 R. (Pa.) 353; Commonwealth v. Harri- 
 son, II Mass. 63; In re McDowles, 8 
 Johns. (N. Y.) 328; Rex v. Delaval, 3 
 Burr. 1434. 
 
 4, Whitley v. Loftus, 8 Mod. igo; 
 Gylbert v. Fletcher, Cro. Car. 179; 
 Whittingham v. Hill, Cro. Jac. 494; Lyl- 
 ly's Case. 7 Mod. 15; Blunt v. Melcher, 
 2 Mass. 228. Compare Woodruff v. Lo- 
 gan. 6 Ark. 276. 
 
 The English cases cited above were 
 under the statute of 5 Eliz. c. 24. 
 
 According to the custom of London, an 
 infant over the age of fourteen years 
 could bind himself out as apprentice, and 
 was liable on his covenants to the inden- 
 tures. Com. Di>f. London, N. 2; 3, 
 Viner Abr. p. 27 (Apprentice L.); Wood 
 Mast. & Serv. (2d Ed.) § 38; Whitting- 
 ham 'J. Hill, Cro. Jac. 494; Barber v, 
 Dennis. 6 Mod. 69 (Case 80) 
 
 In Meakin v. Morris, 53 L. J. M. C. 
 72, the indentures contained a covenant 
 that the wages of the minor should be 
 suspended during such time as the mas- 
 ter's business should be 'interrupted or 
 impeded by any turn out, during which 
 time the minor was allowed to hire him- 
 self out for bis own benefit. It was held 
 that such provision made the indentures 
 voidable at the election of the minor. 
 The court held that any agreement dis- 
 advantageous to an infant apprentice 
 rendered the articles void, and that con- 
 sequently the apprentice would not be 
 compelled to serve under them. Accord, 
 see Reg. v. Lord, 12 Q. B. 757 (Servant 
 not Appr ) 
 
 5 Wood Mast. & Serv. (2d Ed.) § 
 
 639A 
 
Covenant. 
 
 APPRENTICES. 
 
 Wagei, 
 
 But not where, by statute, he is required to sign merely to indi- ^ 
 cate his consent to the binding out.'^ 
 
 Master. — The master is liable, in damages for a breach of his 
 covenants in the indentures.'-* 
 
 Mutual and Independent. — The covenants in indentures are 
 mutual and independent, and a breach of covenant by one party 
 does not excuse a breach by the other.' 
 
 18. "Wages. — The master is entitled to the earnings of his appren- 
 tice during the term.* 
 
 Third persons employing an apprentice must pay the value of 
 his services to the master. 
 
 A payment to the apprentice will not discharge this obligation, 
 
 49; Cuming v. Hill, 3 B. & AM. 59; 
 Branch v. Ewington, 2 Dougl. 518; 
 Ackley w. Horkins, 14 Johns. (N. Y.) 
 374; Sacket v. Johnson, 3 Blackf. (Ind.) 
 6i; Blunt V. Melcher, 2 Mass. 228; 
 Velde V. Levering, 2 Rawle (Pa.), 269. 
 
 1. Woodruff V. Corey, 3 N. J. 540; 
 Velde V. Levering, 2 Rawle (Pa.), 269; 
 Holbrook v. BuUard, 10 Pick. (Mass.) 68; 
 Blunt V. Melcher, 2 Mass. 228; Ackley v. 
 Hoskins, 14 Johns. (N. Y.) 374; Sacket v. 
 Johnson, 3 Blackf. (Ind.) 61. 
 
 In such case a parent or guardian is 
 presumed to have signed solely to indi- 
 cate his assent, unless it plainly appear 
 that he intended to become party to the 
 covenants. Blunt k. Melcher, 2 Mass.228. 
 
 Defences, — In an action on the cove- 
 nant that apprentice shall serve, the par- 
 ent or guardian may show in defence 
 .that the apprentice was prevented from 
 serving by the default of the master. 
 CofBn V. Basset, 2 Pick. (Mass.) 357; 
 McGrath v. Herndon, 4 T. B. Mon. (Ky.) 
 480; Berry v. Wallace, Wright (Ohio), 
 657; Warner v. Smith, 8 Conn. 14. Or 
 that the apprenticeship was determined 
 without the default of the apprentice. 
 Hiatt V. Gilmer, 6 Ired. (N. Car.) 450; 
 Hooks V. Perkins, Busb. (N. Car.) L. 21; 
 Couchman v. Sillar, 18 W. R. 757; Bax- 
 ter V. Burfield, 2 Str. 1266; Ellen v. Topp, 
 6 Exch. 424; Rex v. Harberton, i T. R. 
 139. 
 
 In an action for breach of the covenant 
 foi- faithful service, acts of misconduct on 
 the part of the master, not sufficient to 
 warrant a dissolution of the apprentice- 
 ship by a court, may be shown in miti- 
 gation of damages. Berry v. Wallace, 
 Wright (Ohio), 657. 
 
 To an action for breach of an appren- 
 ticeship deed, the defendant (the father) 
 pleaded that the apprentice "was and is 
 prevented by the act of God, to wit, by 
 permanent illness, happening and arising 
 after the making of the indenture, from 
 remaining with or serving the plaintiff 
 during all the said term." Held, on de- 
 
 murrer, a. good plea in excuse of per- 
 formance, without any averment that the 
 plaintiff had notice of the illness before 
 the' commencement of the action. Boast 
 V. Firth, L. R. 4 C. P. i. 
 
 Illness not brought on by apprentice's 
 own act will not release master from lia- 
 bility to pay wages. Caden v. Farwell, 
 98 Mass. 137; Wood Mast. & Serv. 
 (2d Ed.) § 58. 
 
 A removal from the State by the mas- 
 ter is a breach of his covenant to teach. 
 Walters v. Morrow, i Houst. (Del) 527; 
 Coffin V. Bassett, 2 Pick. (Mass.) 357. 
 
 2. Wood Mast. & Serv. (2d Ed.) § 51. 
 The fact that the apprentice obstinately 
 
 refused to be taught, and by his wilful 
 act prevented his master from teaching 
 him, is a good defence to an action on 
 the covenant to teach. Raymond v. 
 Minton, L. R. i Ex. 244; Westwick v. 
 Theodor, L. R. 10 Q. B. 224. But in order 
 to excuse himself on this score, the mas- 
 ter must show that he used all reasonable 
 means to control and instruct the ap- 
 prentice. Phillips V. Clift, 4 H. & N. 
 168; Wright w. Brown, 5 Md. 37. The fact 
 that the apprentice was incapable of be- 
 ing taught the trade relieves the master 
 from his obligation to teach. Wright v. 
 Brown, 5 Md. 37; Barger v. Caldwell, 
 2 Dana (Ky.) 129; Clancy v. Overman, 
 I Dev. & B. (N. Car.) 402. 
 
 3. Whitley v. Loftus, 8 Mod. igo; 
 Winstone v. Linn, i B. & C. 460; 
 Phillip V. Clift, 4 H. & N. 168. 
 
 4. Wood Mast.-& Serv. (2d Ed.) § 50; 
 Co. Litt. 117. a; Barber v. Dennis, 6 
 Mod. 69; Kelly v. Sprout, 97 Mass. 169; 
 Randall v. Rotch, 12 Pick. (Mass.) 107. 
 
 The master's right to the wages earned 
 after a transfer of the apprentice's services 
 rendering the articles avoidable, is de- 
 termined by an avoidance of the articles 
 by the apprentice, and the master is 
 liable to the apprentice for all wages by 
 him received since the transfer. Ran- 
 dall w. Rotch, 12 Pick. (Mass.) 107. See 
 Kelly V. Sprout, 97 Mass. 169. 
 
 639c 
 
APPRENTICES— APPROPRIA TE—APPROPRIA TJON. 
 
 although such third person did not know of the existence of the 
 apprenticeship at the time of payment to the apprentice,* unless, 
 the want of knowledge was due to the laches of the master.* 
 
 As between parent and apprentice, the parent is, in the absence 
 of express provision to the contrary, entitled to all wages earned 
 under the articles.* 
 
 19. Rights of Master against Third Persons. — A master has a right 
 of action against any person wrongfully injuring his apprentice so 
 as to cause a loss of service.* 
 
 He has a right of action against any one enticing away or har- 
 boring his apprentice.^ 
 
 APPROPRIATE— APPROPRIATION. (See also Apply.)— To 
 determine the use of , to make a thing the property of a person ; 
 to reserve or destine a fund or property for a distinct use, or for 
 the payment of a particular demand.® 
 
 Appropriation is originally the act of appropriating. In com- 
 mon parlance, the money in the public treasury which has been 
 appropriated to some public use is called the appropriation.'' 
 
 \. James v. Le Roy, 6 Johns. (N. Y.) 
 274; Conant v. Raymond, 2 Aik. (Vt.) 
 243; Bowes V. Tibbetts, 7 Me. 457; 
 Stout V. Woody, 63 N. Car. 37; Bard- 
 well V. Purrington, 107 Mass. 419; 
 Wood Mast. & Serv. (2d Ed.) § 50. 
 
 2. Bardwell v. Purrington, 107 Mass. 
 419. 
 
 3. Balch V. Smith, 12 N. H. 437. 
 
 4. Hodsoll V. Stallebrass, 11 Ad. & 
 El. 301 ; Hall v. Hollander, 4 B. & C. 660; 
 AmeBw. Union R. R. Co., 117 Mass. 541. 
 
 6. Bonnel v. Brotzman, 3 W. & S. 
 (Pa.) 178 ; Heinecke v. Rawlings, 4 
 Cranch (U. S. C. Ct.), 699; Hooks v. Per- 
 kins, Busb. L. (N. Car.) 21; Stuart v. 
 Simpson, i Wend. (N. Y.) 376; Ferguson 
 V. Tucker, 2 H. & G. (Md.) 182. 
 
 In an action for enticing away an ap- 
 prentice, plaintiff must prove that defend- 
 ant knew of the apprenticeship at the 
 time of the enticing. See cases cited in 
 last paragraph above. 
 
 No action lies for enticing away ap- 
 prentice where he did not sign the inden- 
 ture. Ivins V. Norcross, 3 N. J. L. 977. 
 
 6. Under the Declaration of Rights of 
 the Massachusetts constitution, which 
 provides, "whenever the public exigen- 
 cies require that the property of any in- 
 dividual should be appropriated to public 
 uses, he shall receive a reasonable com- 
 pensation therefor," the court said: 
 "Here again the term 'appropriate' is 
 of the largest import, ahd embraces every 
 mode by which property may be applied 
 to the use of the public. Whatever ex- 
 ists, which public necessity demands, 
 may be thus appropriated." Boston & 
 Lowell R. V. Salem & Lowell R., 2 Gray 
 
 (Mass.). I, 35. See Eidemiller !>. Wyan- 
 dotte City, 2 Dillon (U. S.), 376. 
 
 Where a policy of insurance provided 
 that if the premises should at any time be 
 appropriated, applied, or used for anything 
 hazardous or extra hazardous, or specified 
 in the memorandum of special rates, the 
 policy should become void, it was held that 
 a change from the manufacturing of car- 
 pets to that of blankets was no such 
 change or different appropriation as 
 was contemplated by that clause. Smith 
 V. Mech. &Trad. Ins. Co., 32 N. Y. 399, 
 403. See U. S. Fire & Mar. Ins. Co. of 
 Bait. V. Kimberly, 34 Md. 224. 
 
 Where a testator first charged all his 
 estate, both real and personal, with the 
 payment of his debts, and then declared 
 that the revenues should be used for that 
 purpose tdgether with such other appro- 
 priations as he might make, it was held, 
 that the word " appropriations" evinced, 
 the intention of the testator to designate 
 and set apart the portion referred from 
 his other property for a specific object, 
 viz. , to constitute a fund in the hands of his 
 executors to pay his debts. Whithead v^ 
 Gibbons, 2 Stockton's Ch. (N. J.) 230. 
 
 7. Appropriation is thus used in con- 
 tracts to denote the application of a sum 
 of money paid by a debtor to his credi- 
 tor to one or more of several debts due 
 from the former to the latter. This may 
 be made by the debtor himself, or, in 
 case of his neglect, by the creditor, or, 
 where neither has made it, by the law. 
 See Stone v. Seymour, 15 Wendell (N. 
 Y.), 19, for a full view of the doctrine. 
 And see Postmaster-General z/. Furber, 
 4 Mason (U. S.), 333; United States ». 
 
 639d 
 
Constmctions 
 
 APPRO PRTA TE— APPRO VE. 
 
 Constructions. 
 
 Other meanings of appropriate, are to distribute ;^ also, suitable ; 
 proper.'-* 
 
 APPROVE — APPROVER — APPROVEMEIirT. — This group of 
 words has several meanings. First, it signifies much the same as 
 improvement ; thus " approvement of common " means the enclos- 
 ing a part of a common by the lord of the manor for the purpose 
 of cultivating the same, leaving sufificient for the commoners.^ 
 Second, to cultivate land after enclosing it ; to make the best ben- 
 efit or profit of it, by increasing the rent. The profits of a farm.* 
 Third, its most frequent meaning, and the one in use in modern 
 criminal law, is to accuse an accomplice by giving evidence against 
 him, in order to secure the approver's own pardon.^ Finally, to 
 be satisfied with ; commend ; accept.® 
 
 distribute. The property in goods ot a 
 deceased person is in the executor or ad- 
 ministrator, and it is his duty to appro- 
 priate them, that is, to distribute tliem 
 among the persons entitled according to 
 their rights. See Blake v. Dexter, 12 
 Cush. (Mass.) 559. 
 
 8. Where an act provided that the real 
 estate of any private corporation " above 
 what was required and used for the 
 transaction of its appropriate business" 
 should be liable to be assessed and taxed 
 to the same extent as if owned bv an in- 
 dividual, it was held that land owned by 
 a bridge company and used for wharves 
 was liable to taxation under the statute. 
 Toll Bridge Co. v. Osborn, 35 Conn. 7. 
 
 The fifteenth amendment to the consti- 
 tution of the United States empowered 
 Congress to enforce the rights therein 
 given by appropriate legislation. But 
 an act of Congress broad enough to 
 cover wrongful acts without as well as 
 within the constitutional jurisdiction is 
 not such appropriate legislation. U. S. 
 V. Reese, 2 Otto (U. S.), 214. 
 
 3. There can be no approver in dero- 
 gation of a right of common of turbary. 
 At common law the lord might approve 
 against common of pasture appendant. 
 Grant ». Cunner, i Taunton, 434. 
 
 4. Cowell's Interpreter (Law Diet.), sub 
 
 Thus the "king's approvers" were 
 those that had the letting of the king's 
 demesnes in small manors, to his best 
 advantage. Stat. 51 Hen. III. st. 5. 
 
 So the bailiff of a lord in his franchise. 
 Stat. 9 Hen. VI. c, 10. 
 
 8. An approver is one who confesses 
 himself guilty of felony, and accuses oth- 
 ers of the same crime to save himself 
 from punishment. Myers v. People, 26 
 111. 173. See Gray v. People, 26 111. 344; 
 Rex V Rudd, 1 Covvper, 331. 
 
 6. Where a codicil recited the will with 
 this expression, " which I fully approve 
 
 Wardwell, 5 Mason (U. S.), 82; Reed o. 
 Boardman. 20 Pick. (Mass.) 441; Hoyt 
 V. Story, 3 Barb. (N. Y.) 26?. 
 
 Appropriation, as applicable to the 
 general fund in the treasury, may per- 
 haps be defined to be an authority from 
 the legislature given at the proper time 
 and in legal form to the proper officers 
 to apply sums of money out of that 
 which may be in the treasury in a given 
 year to specified objects or demands 
 against the State. Ristone, etc.. v. The 
 State ex rel., etc., 20 Ind. 32S. 138. 
 
 For other examples of this use of the 
 word see McConnel v. Wilcox, 2 111. 
 344; State V. Bordelou, 6 La. Ann. 68. 
 
 A specific appropriation is an act 
 by which a named sum of money has 
 been set apart in the treasury and de- 
 voted to the payment of a particular de- 
 mand. Stratton v. Green, 45 Cal. 149. 
 
 The act of Congress of July 4, 1864 
 (13 Stat, at Large, 381), declares that the 
 jurisdiction of the court of claims shall 
 not extend to or include any claim 
 against the United States growing out of 
 the destruction of, appropriation of, or 
 damage to property by the army or navy, 
 or any part of the army or navy engaged 
 in the suppression of the rebellion from 
 the commencement to the close thereof, 
 It was held that the term "appropria- 
 tion" in this act included all taking and 
 use of property by the army and navy in 
 the course of the war not authorized by 
 contract with the government. Filor v. 
 United States, 9 Wallace (U. S.), 45. See 
 U. S. V. Russell, 13 Wallace (U. S.), 623; 
 Pugh V. U. S., 13 Wallace (U. S.), 633; 
 U. S. V. Kimball, 13 Wallace (U. S.). 636; 
 Waters v. U. S., 4 Ct. of Claims (U. S.), 
 389. 
 
 On appropriation of lands by the 
 State, see People v. Com. of State Land 
 Office, 23 Mich. 270; Railroad Co. k. Fre- 
 mont County, 9 Wallace (U. S.), 89. 
 
 1. To appropriate also means to 
 
 640 
 
ConBtTuctions, 
 
 APPRO VE—APP UR TENANCE. 
 
 Constructions. 
 
 APPURTENANCE. (See also APPURTENANT; DEEDS; Ease- 
 ments AND Servitudes.) — A thing used with and related to or 
 dependent upon another thing more worthy, and agreeing in its 
 nature and quality with the thing whereunto it is appendant or ap- 
 purtenant.^ A thing belonging to another thing as principal, and 
 which passes as incident to the principal thing.** By appurte- 
 
 of," it was held to have the effect of a re- 
 publication. Rich V. Cockell, 9 Vesey, 
 Jr. 369. 
 
 Where a statute prohibited any one to 
 be received as a lecturer, etc., in any 
 church, chapel, etc., unless he be first 
 "approved" and thereunto licensed by 
 the bishop of the diocese, the court re- 
 fused a mandamus to the Bishop of Lon- 
 don upon affidavit made by the bishop 
 that he could not consistently with his 
 duty approve of the applicant as a fit per- 
 son, holding that it was in the discretion 
 of the bishop. The King v. The Arch- 
 bishop of Canterbury, and the Bishop of 
 London, 15 East. 117. 
 
 Where goods were sold to be paid "by 
 bill," evidence was rejected to show that 
 "by bill " is meant an " approved " bill. 
 " I cannot receive this evidence," said 
 Lord EUenborough. "The contract 
 must speak for itself. Even if the phrase 
 ' approved bill ' were introduced, I think 
 it could only mean a bill to which no rea- 
 sonable objection could be made, and 
 which ought to be approved." Hodgson 
 V. Davies, 2 Campbell, 530. 
 
 So where one agrees to execute to an- 
 other a note with "good and approved 
 freehold surety," the latter cannot arbi- 
 trarily refuse the surety; it is sufficient if 
 the surety be good freehold surety, worthy 
 of approval. For, said the court, " It is 
 further urged that the possession of the 
 lease which obligated Personett to pro- 
 cure a ' good and approved freehold 
 surety' to sign the note with him con- 
 ferred upon Andis the right, as he might 
 see fit. to approve or disapprove any per- 
 son who may have been offered as surety 
 under that provision; and that hence An- 
 dis had the right to reject any note ten- 
 dered by Personett on which the surety 
 was, for any cause, unacceptable to him. 
 We are unable to agree to such a con- 
 struction of the lease. The word ' ap- 
 proved ' has several shades of tneaning. 
 One of the definitions which Webster 
 gives of it is, ' To make or show to be 
 worthy of approbation or acceptance; to 
 commend;' and it is in that sense we con- 
 strue the word as it was used in connec- 
 tion with the surety which was to be fur- 
 nished by Personett. The phraseology 
 used in the provision in question was 
 equivalent to saying that Personett 
 
 should execute a note with ' good free- 
 hold surety, worthy of approval.' In 
 view of the nature of the transaction as 
 evinced by the entire lease, any less lib- 
 eral construction than this would scarcely 
 seem reasonable, and might have been 
 made to work great injustice to Personett. 
 We consequently see no objection to the 
 substantial suflSciency of the complaint." 
 Andis V. Personett, 9 N. E. Rep. loi. 
 
 On a sale for " approved " indorsed 
 paper, the construction of law is, paper 
 which ought to be approved. Guier & 
 Diehl V. Page, 4 S. & R. (Pa.) i. 
 
 On such a sale the burden of proof is 
 thrown upon the vendee to show that it 
 was such a note as the vendor ought to 
 have received and approved. Mills v. 
 Hunt, 20 Wend. (N. Y.)43l. 
 
 Where the charter of the Bank of the 
 United States required the cashier to give 
 a bond with two or more approved secur- 
 ities, in a suit upon the bond, it was held 
 that the fact of such approval might be 
 proved by presumptive evidence, there 
 being no record of such approval. Bank 
 of U. S. V. Dandridge, 12 Wheaton (U. 
 S.), 64. 
 
 1. The word "appurtenances'* has a 
 technical signification, and when strictly 
 considered is employed in cases for the 
 purpose of including any easements or 
 servitudes used or enjoyed with the de- 
 mised premises. When the term is thus 
 used, in order to constitute an " appurte- 
 nance," there must exist a propriety of 
 relation between the principal or domi- 
 nant subject and the accessory or ad- 
 junct, which is to be ascertained by con- 
 sidering whether they so agree in nature 
 and quality as to be capable of union 
 without incongruity. Riddle v. Little- 
 field, 53 N. H. 503, 508. ' 
 
 2. The term as used in conveyances 
 passes nothing but the land and such 
 things as belong thereto, and are part of 
 the realty. Ottumwa Woollen Mill Co. 
 V. Hawley, 44 Iowa. 57. See Meek v. 
 Breckenridge, 29 Ohio, 642, 648. 
 
 Therefore, where a conveyance is of a 
 piece of land by defined boundaries "with 
 appurtenances," other land not included 
 in the boundaries will not pass as appur- 
 tenant to the grant. All that can be 
 claimed, as embraced in the word " ap- 
 purtenances," are easements and servi- 
 
 I C. of L. — 43 
 
 641 
 
Constructions. 
 
 APF UR TENANCE. 
 
 Goustructions, 
 
 nance is meant not what is on, but what is off, the land.^ The 
 word "appurtenance" has received frequent construction by the 
 
 tudes necessary to the enjoyment of the 
 land conveyed. Woodhull v. Rosenthal, 
 6l N. Y. 382. 
 
 So where ihe granting clause in a lease 
 was as follows: "That the said Richard 
 Bell has this day leased and rented to the 
 said R. P. Hall . . . the Bell house . .' . 
 with all the appurtenances thereunto be- 
 longing"; it was held that a kettle situ- 
 ated upon a lot not included in the lease 
 of hotel property, and not indispensable 
 to its enjoyment, although a convenience 
 to such property, and used by the grantor 
 in connection therewith, is not an appur- 
 tenance thereto, and the grantee may at 
 any time be deprived of its use by the 
 grantor; for the term "appurtenances" 
 carries with it no rights or interest in 
 property, of the grantor on other lands 
 not included in the deed under which the 
 grantee claims. Barrett v. Bell, 82 Mo. 
 no. See Bolton v. Bolton, L. R. II Ch. 
 Div. 968; Leonard v. White, 7 Mass. 6. 
 
 It cannot be made to include anything 
 not situate on the land described, though 
 it belong to the grantor, and be used by 
 him in his business. Frey v. Drahos, 6 
 Neb. i; s. c, 29 Am. Rep. 353. See 
 Grant w. Chase, 17 Mass. 443; Spaulding 
 V. Abbott. 55 N. H. 423; Barber v. Clark, 
 4 N. H. 3B0; Coolidge v. Hagar, 43 Vt. 
 g; Swazey v. Brooks, 34 Vt. 451; Seavey 
 V. Jones, 43 N. H. 441; Bettisworth's 
 Case. 2 Coke, 516; Jackson v. Striker, 
 I Johns. Cases (N. Y.). 284; Jackson v. 
 Hathaway, 15 Johns. (N. Y.) 447; Bus- 
 zard V. Capel, 8 B. & C. 141; s. c, in Ex. 
 Ch. 6 Bingham, 150; Ogden tj. Jennings, 
 62 N. Y. 526. 
 
 1. Therefore buildings are in no sense 
 appurtenances; but if annexed to the 
 freehold, they are a parcel of the land, 
 and pass as such by the deed. U. S. v. 
 Harris, I Sumn. (U. S.) 21, 38. 
 
 Land cannot be an appurtenance to 
 land. Appurtenances, in a will or deed, 
 comprehend only things in their na- 
 ture incident to the tract conveyed. 
 Helme v. Guy, 2 Murph. (N. Car) 341. 
 See New York Central R. Co. v. Buf- 
 falo R, Co., 49 Barb. (N. Y.) 501; Har- 
 ris V. Elliott. TO Pet. (U. S.) 25. 
 
 In wills, however, lands may pass un- 
 der the term "appurtenances" to give 
 effect to the intent. Otis v. Smith, 9 
 Pick. (Mass.) 293. 
 
 And by appurtenances, in a deed of 
 5000 acres of Pennsylvania lands, dated 
 1704. it was held that the usual city lots 
 and liberty lands passed. Hill v. West, 
 4 Yeates (Pa.), 142. 
 
 But the fee of an adjoining road or 
 
 street does not pass by a deed, as an 
 appurtenance of the land professedly 
 granted. Jackson v. Hathaway, 15 
 Johns. (N. Y.) 447; Harris v. Elliott, 10 
 Pet. (U. S.) 25. 
 
 An appurtenance which is conveyed 
 by general terms in a grant must be 
 something which necessarily attaches to 
 the lands conveyed as a matter of right. 
 Thus defendant sold and conveyed to 
 plaintiff a dwelling-house and lot in the 
 city of T., described by metes and bounds, 
 "with the appurtenances," the deed con- 
 taining covenants of warranty and of 
 quiet enjoyment. There were at the time 
 a bath-room and water-closet in the 
 dwelling, the discharge-pipes from which 
 emptied into a sewer leading from the 
 premises to and across adjoining prem- 
 ises owned by G. Defendant had no 
 right to the use of the sewer across the 
 lands of G., and G., subsequent to the 
 conveyance, brought an action against 
 plaintiff perpetually restraining her from 
 using said sewer. In an action to re- 
 cover damages for alleged breach of the 
 covenants, held, that the right to use the 
 sewer was not a legal appurtenance within 
 the meaning of the deed, and that, there- 
 fore, the action was not maintainable. 
 .Green v. Collins, 86 N. Y. 246. 
 
 The words "with the appurtenances" 
 cannot affect the rights of the parties or 
 enlarge the scope of the deed, as the 
 appurtenances would pass without such 
 words, for it is a. general rule that what- 
 ever is in use for the land as an incident 
 or appurtenance is conveyed by the deed. 
 Hattemeier v. Albro, 18 'N. Y. 48. 
 
 In Plant z). James, 5 B. & A. 791, Lord 
 Denman said: "Nothing is more clear 
 than that under the word ' appurte- 
 nances,' according to its legal sense, an 
 easement which has become extinct, or 
 which does not exist in point of law by rea- 
 son of unity of ownership, does not pass. 
 If the grantor wishes to revive or create 
 such a right, he must do it by express 
 words, or introduce the terms ' therewith 
 used and enjoyed,' in which case ease- 
 ments existing in point of fact though 
 not existing in point of law would be 
 transferred to the grantee." See Sim- 
 mons V. Cloonan, 81 N. Y. 557; Curtis 
 V. Ayrault, 47 N. Y. 73; Lampman v. 
 Milks, 21 N. Y. 505; French v. Carhart, 
 I N. Y. 96; Bank of British N. A. v. 
 Miller, 7 Sawyer (U. S.), 163. 
 
 The mere use of the word "appurte- 
 nances" will not create an easement: 
 Kenyon v. Nichols, 1 R. L 411. 
 
 The incidents which pass as "appur- 
 
 643 
 
Constractions. 
 
 APP UR TENANCE. 
 
 Constructions. 
 
 courts, and the principles on which their interpretation was based 
 have been clearly explained.* 
 
 tenances'' must be open and visible, and 
 when so, knowledge will be inferred, and 
 the appurtenances which pass in such 
 case are not limited to those absolutely 
 necessary to the enjoyment of the prop- 
 erty conveyed. It is sufficient if full en- 
 joyment of the property cannot be had 
 without. Thus H., being the owner of 
 premises upon which was a mill known 
 as "The Old Mill," and a dam and res- 
 ervoir, the water from which was con- 
 ducted to the mill by a flume, conveyed 
 " The Old Mill" to B., the deed granting 
 the right to use the water of the reservoir 
 for the benefit of the mill, with the con- 
 dition, however, that in case the mill 
 should not be kept in use the water-priv- 
 ileges and right of flowage should cease 
 and revert to H. H. subsequently con- 
 tracted to sell and convey to B. a portion 
 of the lands lying between "The Old 
 Mill" and the reservoir, upon which B. 
 erected a new mill, taking the water from 
 the reservoir for its use. B. subsequently 
 assigned his contract back to H., and re- 
 leased the title acquired under it. H. 
 thereupon, without reference to the con- 
 tract, conveyed to S. the premises em- 
 braced therein, with appurtenances, as 
 to which nothing was said in the contract. 
 "The Old Mill" was afterwards de- 
 stroyed by fire, and was not rebuilt. H. 
 conveyed the lands upon which was the 
 reservoir to defendant C, who proceeded 
 to fill up the reservoir and remove the 
 flume. In an action to restrain the doing 
 of this, held, that as by the assignment 
 of the contract to H. he became rein- 
 vested with the entire title, freed from 
 the equities of the contract, the date of 
 tne deed to S. became the date of the 
 sale, and the water-power then in use for 
 the mill, and visibly incident and appur- 
 tenant thereto, passed by the deed, and 
 that, therefore, the action was maintain- 
 able. The assignment from B. to H. in 
 terms authorized the latter to convey to 
 S., and the conveyance was in pursuance 
 of an arrangement between B. and S.; 
 the consideration of the deed was about 
 the contract price, with interest, unaf- 
 fected by the improvements put on the 
 land by B. Held, that all the facts justi- 
 fied a finding that the intent of the par- 
 ties was not simply to carry out the old 
 contract, but that the sale should bear 
 the date of the deed and that the water- 
 power should pass as appurtenant. B. 
 fitted the mill so erected by him with 
 steam-power, to be used when the water- 
 supply was insufficient. Held, that this 
 did not prevent the passing, under the 
 
 deed to S., as appurtenant, of the right 
 to use the water, as the water-power was 
 necessary to the full enjoyment of the 
 property. Simmons v. Cloonan, 8l N. 
 Y. 557. See Voorhees v. Burchard, 55 
 N. Y. 98. 
 
 A devise of a grist-mill " with the ap- 
 purtenances" will pass everything neces- 
 sary for the full and free enjoyment of 
 the grist-mill, and requisite for the sup- 
 port of the establishment, such as dam, 
 water, the race leading to the mill, a. 
 proper portion of ground before the mill 
 for the unloading and loading of horses„ 
 wagons, etc., as used by the testator.. 
 Blaine v. Chambers, i 8. & R. (Pa.) i6g. 
 
 But the soil of a way immemorially 
 used for the purpose of access to the 
 mill does not pass, though it may be 
 treated as a grant of the easement for 
 the accommodation of the mill. Leonard 
 V. White, 7 Mass. 6. 
 
 What is necessary for the enjoyment 
 of a mill-stream passes as an appurte- 
 nance; therefore a water-power appurte- 
 nant to a mill passes. Pickering v. Sta- 
 pler, 5 S. & R. (Pa.) log. 
 
 But one who hires a lanyard and bafk- 
 mill cannot throw the contents into the 
 stream, nor put his waste bark on the 
 lessor's adjoining land, for that is a con- 
 venience, not a necessity. Howell v. 
 McCoy, 3 Rawle (Pa.), 256. 
 
 1. The "appurtenance" and the thing 
 to which it is appurtenant must agree in 
 nature and quality. Thus a seat in a 
 church may be appurtenant to a house, 
 but not to land. Where a mill was sold 
 with the appurtenances, a kiln occupied 
 with the mill for many years did not pass, 
 it not appearing but that the kiln was a 
 lime-kiln, having no relation to the mill, 
 though had it been shown to be a malt- 
 kiln it might pass. 3 Salk. 40, "Apper- 
 taining." 
 
 So it was decided that by a devise of a 
 silver tea-kettle and lamp with its appur- 
 tenances nothing passes but the kettle, 
 lamp and frame, and not, as the devisee 
 claimed, the silver canister, tea-pot and 
 lamp.milk-pot.spoons.strainer. and tongs. 
 Hunt V. Berkley. Mosely Ch. Rep. 47. 
 
 The right to take ore out of certain 
 mine-hills is an easement, and is such a 
 rightas can be annexed to other land by 
 express grant, and will pass as appurte- 
 nant to it. Grubb v. Grubb, 74 Pa. St. 
 25- 
 
 One entire railroad will not pass by the 
 word ' ' appurtenance" to another railroad, 
 any more than one tract of land would 
 pass as appurtenant to another. Phila. 
 
 643 
 
-Constructions. APP UR TENANCE—APP UR TENANT. Definition. 
 
 APPTIETENAWT. (See also Appendant ; Appurtenances ; 
 Easements ; Franchises ; , Incorporeal Hereditaments ; 
 Rights of Way.) — Annexed to or belonging to. An annexa- 
 tion, where the connection has arisen either by grant or by 
 prescription from long adverse enjoyment. It is of convenience 
 merely; and not of necessity, and may have had its origin at any 
 time, in both of which respects it is distinguished from appen- 
 dant. 
 
 V. Phila. & Reading R. Co., 58 Pa. St. 
 
 253. 
 
 But flats may pass as appurtenant to 
 a wharf, notwithstanding the maxim that 
 land cannot pass as appurtenant to land, 
 for a wharf is not land within the con- 
 struction of that ma.\im, and the flats are 
 necessary for the use of the wharf, and 
 usually occupied with it. Doane v. 
 Broad Street Assoc, 6 Mass. 332. See 
 Barker v. Bessey, 73 Me. 472; s. c, 40 
 Am. Rep. 377, and cases cited; Hoskins 
 •V. Brawn, 76 Me. 68. 
 
 So appurtenances of a riparian lot in- 
 clude an addition formed by an extension 
 of the port-warden's line outward. Will- 
 iams V. Baker, 41 Md. 523. 
 
 This maxim that land cannot be ap- 
 purtenant to land has some exceptions. 
 Thus in wills lands may pass under the 
 term "appurtenances," to give effect to 
 the intent. Otis v. Smith, 9 Pick. (Mass.) 
 293 
 
 And a grant of a messuage with the 
 lands appertaining will pass the lands 
 usually occupied therewith. Blackborn 
 V. Edgley, i P. Wms. 600. See Hill v. 
 Grange, I. Plowden. 164; Aramidown 
 V. Ball, 8 Allen (Mass.), 293. 
 
 And appurtenances may include a. 
 vard and sidewalk of a building. McDer- 
 inott V. Palmer. 8 N. Y. 383. 387. 
 
 The rule is that land will pass under 
 this word whenever it is essential to the 
 beneficial use and enjoyment of the prop- 
 erty granted. Therefore a written agree- 
 ment for the sale and conveyance of a 
 "bridge with the privileges and appur- 
 tenances" will pass the land upon which 
 it stands. Sparks v. Hess, 15 Cal. 186. 
 
 But not other land held by the bridge 
 company. St. Louis Bridge Co. v. Cur- 
 tis. 103 111. 410. 
 
 So by the devise of a mill " and its ap- 
 purtenances," not the buildings merely, 
 but all the land under the mill and neces- 
 sary for the use of it, and commonly 
 used with it, passes to the devisees. 
 Whitney v. Olney, 3 Mason (U. S.), 
 280. See Gllson v. Brockway, 8 N. H. 
 465; Wise V. Wheeler, 6 Ired. (N. 
 Car.), 196; Allen v. Scott, 21 Pick. 
 (Mass.) 25; Blake v. Clark, 6 Greenl. 
 
 (Me.) 436; Forbash v. Lombard, 13 Mete. 
 (Mass.) 109; Swartz v. Swartz, 4 Barr. 
 (Pa.) 353; U. S. V. Appleton, i Sitmn. 
 (U. S.) 492. 
 
 Also the right to convey and discharge 
 water from and across land not within 
 the boundaries given by the deed. Jack- 
 son z/. Trullinger, 9 Oregon, 393. 
 
 Whatever is on board a ship for the 
 objects of a voyage and adventure on 
 which she is engaged, belonging to the 
 ship and not being cargo, constitutes a 
 part of the ship and her "appurte- 
 nances." Gale V. Laurie, 5 B. & C. 150. 
 See The Witch Queen, 3 Sawyer (U. S.), 
 201; Briggs V. Strange, 17 Mass. 405. 
 
 A clause in a mortgage upon a vessel 
 read " with her boats, guns, ammunition, 
 small-arms, and appurtenances." It was 
 held that a piano was not one of the ap- 
 purtenances. St. John V. BuUivant, 45 
 U. C. Q. B. Rep. 614. 
 
 The word "appurtenance" will not 
 pass an easement wh ich the grantor could 
 not effectually convey; therefore a deed 
 conveying land subsequent to the statu- 
 tory closing of a highway adjoining does 
 not convey an easement in the highway 
 which entitles the grantee to the damages 
 subsequently awarded. King v. The 
 Mayor of New York et al., 102 N. Y. 171. 
 
 The use of the word " appurtenances" 
 has been especially construed, as todeeds, 
 in Smith v. Modus Water-jjower Com- 
 pany, 35 Conn. 392; Blakeman w. Blake- 
 man, 39 Conn. 320; Gazetty v. Bethune, 
 
 14 Mass. 49; s. c, 7 Am. Dec. 188, 
 where it was held that its use would 
 not create a new easement; Grant v. 
 Chase, 17 Mass. 443; s. c, 9 Am. Dec. 
 161; Pickering v. Stapler, 5 S. & R. (Pa.) 
 107; s. c. 9 Am. Dec. 336; James v. 
 Plant, 4 Ad. & El. 749; Strickler v. Todd, 
 10 S. &. R. (Pa.) 63; s. t., 13 Am. Dec. 
 49; Parsons v. Johnson, 68 N. Y. 62; 
 Worthington v. Grinton, 2 Ell. & Ell. 618. 
 
 For its use in wills, see Blaine's 
 Lessee v. Chambers, ' S. &R. (Pa.) 169; 
 Smith V. Ridgeway, L. R. I Ex. 46; Doe 
 dem. Renow v. Ashley, 10 Ad. & El. N. 
 S. 663; Doe dim. Hubbard v. Hubbard, 
 
 15 Ad. & El. N. S. 227; Pheysey v. 
 Vicary, 16 M. & W. 484. 
 
 644 
 
APP UR TENANT— AP T TIME—ARBITRARIL Y. 
 
 Appurtenant is that which belongs to another thing, but which 
 has not belonged to it immemorially.^ 
 
 APT TIME. — Sometiines depends upon lapse of time, as when a 
 thing is required to be done at the first term, or within a given 
 time, it cannot be done afterwards. But it more usually refers to 
 the order of proceeding, ^lI fit or suitable time.'-* 
 
 AEBITRARILY. — As employed in a lease with reference to the 
 withholding of the lessor's consent to an assignment by the lessee, 
 seems to mean " without fair, solid, and substantial cause, and 
 without reason given," and not to be applicable where the assent 
 is refused " upon any fair and reasonable ground," and upon ad- 
 vice, even without reasons given therefor..^ 
 
 1. Coke on Littleton, 121, b; Farmer v. 
 Ukiah Water Co., 56 Cal. 11. 
 
 Where a grantor conveyed by deed a 
 tract of land described by metes and 
 bounds, with a mill upon the same, and 
 at the time of the conveyance there>was 
 a raceway to conduct the water from the 
 mill, running aloiig the side of the natu- 
 ral stream, beyond the bounds of the 
 land granted into other land of the grant- 
 or, and there discharging the water into 
 the natural stream, and which raceway 
 had been used with the mill several 
 years, and was necessary to the conveni- 
 ent use of the mill, it was held that a 
 right to have the water flow off uninter- 
 ruptedly through the whole extent of the 
 raceway passed as appurtenant totht 
 mill. New Ipswich W. L. Factory v. 
 Batchelder, 3 N. H. 190. 
 
 In Nicholas v. Chamberlain, Cro. Jac. 
 121, Croke says ; " It was held by all the 
 court, upon demurrer, that if one erect a 
 house, and build a conduit thereto in 
 another part of his land, and convey 
 water by pipes to the house, and after- 
 ward sell the house with the appurte- 
 nances, excepting the land, or sell the land 
 to another, reserving to himself ihe 
 house, the conduit and the pipes pass with 
 the house, because they are necessary 
 and appurtenant thereto." See Phil- 
 brick V. Ewing, 97 Mass. 133; Seymour 
 V. Lewis, 2 Beas. Eq. (N. J.) 439; Elliot 
 V. Sallee, 14 Ohio State, 10; Hazard v. 
 Sobinson, 3 Mason (U. S.), 272; U. S. v. 
 Appleton, I Sumn. (U. S.) 492; SafEeld 
 V. Brown, 33 L. J. Ch. (N. S.) 249. 
 
 An inclosed yard, the sole use of which 
 is in connection with a house of correc- 
 tion, is " adjoining or appurtenant there- 
 to" within tiie meaning of the Gen. Stat. 
 c. 178, § 6, and a prisoner in the house 
 of correction, escaping from such a yard, 
 is liable to punishment under § 46 of the 
 same statute. Com. v. Curley,ioi Mass. 24. 
 
 "Nor are appurtenants necessarily of 
 an incorporeal nature, "but things cor- 
 poreal may be appurtenant." Dissenting 
 
 opinion by Lewis, J., in Jackson v. Strik- 
 er, I Johns. Cas. (N. Y.) 284, 287. See, 
 contra. Lister j). Pickford, 34 Beavan, 576. 
 
 But though lands cannot be " appurte- 
 nant" to lands, or a messuage to a mes- 
 suage, strictly speaking, yet "appurte- 
 nant " may be taken in the sehse of " usu- 
 ally let" or "occupied" with the land, 
 and may thus include what is not strictly 
 "appurtenant." Hall v. Benner, 1 P. 
 & W. (Pa.) 402; s. u., 21 Am. Dec. 394. 
 
 A policy insuring all articles making 
 up the stock of a pork-house, and within 
 and appurtenant to the building,, cov- 
 ers everything in the building properly 
 belonging to a pork-house, without regard 
 to the particular ownership of each and 
 every article contained in or appurtenant 
 to the building. jEtna Ins. Co. v. Jack- 
 son, 16 B. Mon. (Ky.) 242. See Crosby 
 V. Franklin F. Ins. Co., 5 Gray (Mass.), 
 504; Haley v. Dorchester, etc., Co., 12 
 Gray (Mass.). 545; Bryants, Poughkeep- 
 sie Ins. Co., 17 N. Y. 200; s. c, 21 Barb. 
 (N. Y.)i54; Pindar z/. Kings Co. Ins. Co., 
 36 N. Y. 648; Begler v. New York Cen- 
 tral Ins. Co., 20 Barb. (N. Y.) 635. 
 
 2. Pugh V. York, 74 N. C. 383. In 
 this case the defendant filed a petition 
 for a recordari to remove a case from a 
 justice's to the superior coul-t, and be- 
 fore putting it on the trial docket ob- 
 tained his discharge in bankruptcy, 
 which he pleaded, two years later, when 
 he moved to have the case put upon the 
 trial docket. The motion having been re- 
 fused as the plea was not offered in " apt 
 time," held, error, as no time was pre- 
 scribed within which a discharge in bank- 
 ruptcy was to be pleaded and if it were 
 done in the proper order it made no differ- 
 ence whether the time was long or short. 
 
 3. Treloar v. Bigge, L. R. 9 Ex. 155. 
 The point directly decided in this case 
 was that the words " such consent not 
 being arbitrarily withheld," contained in 
 the lessee's covenant not to assign with- 
 out consent, did not amount to an abso- 
 lute covenant on the part of ihe lessor 
 
 645 
 
ARBITRA TION. 
 
 ARBITRATION AUD AWARD. 
 
 1. Definition, 647. 
 
 2. Award, 647. 
 
 3. At Common Law ; Under Stat- 
 
 utes, 647. 
 
 4. Who can be Parties to Arbi- 
 
 tration, 648. 
 Control, 648. 
 Infants, 648. 
 Bankrupts, 648. 
 Husband and Wife, 649. 
 Corporations, (>ti^<j. 
 Partners, 650. 
 Agents, 652. 
 Executors and Administrators, 
 
 653- 
 Guardians, 654. 
 Overseers of tke Poor, 654. 
 
 5. Submissions, 654. 
 
 Under Statutes, 654. 
 
 Intent of Parties, 655. 
 
 At Common Law, 655. 
 
 Form of, 656. 
 
 Simultaneous, 657. 
 
 When Submission may be Made, 
 
 658. . 
 What may be Submitted, 658. 
 Must be a Matter of Doubt at 
 
 Least, 658. 
 Matters Regarding Real Estate, 
 
 659. 
 General Submission, 660. 
 What Matter Excluded, 661. 
 Conditional Submission, 661. 
 Of Cases Pendente Lite, 661. 
 Cases Suspended, 662. 
 What is Submitted, 663. 
 Release of Errors, 663. 
 
 6. Revocation of, 664. 
 
 Form of, 665. 
 Implied, 665. 
 Effect on Parties, 666. 
 Revocation Binding on both 
 Parties, 666. 
 
 7. Specific Performance of Sub- 
 
 mission, 667. 
 
 Condition Precedent, 668. 
 
 8. Arbitrators, 670. 
 
 Who may be Chosen, 670. 
 Must have no Interest in ike 
 
 Matter, 672. 
 Adverse Opinion, 673. 
 When Objection must be Raised, 
 
 673. ^ 
 
 Agents of both Parties, 673. 
 Oath of Arbitrator, 674. 
 
 9. Power of, 675. 
 
 Judges of Law and Facts, 
 675. 
 
 Restricted Power, 675. 
 
 Waiver, 675. 
 
 Questions of Pure Law, 676. 
 
 Matters of Fact, 676. 
 
 Excess of Authority, 676. 
 
 Presumption, 677. 
 
 jT/ay not be Delegated, 677. 
 
 Ministerial Acts, 678. 
 
 /"/^^ OaM 0/' Witnesses, 678. 
 
 To Compel Attendance of Wit- 
 nesses, 679. 
 
 10. Ruling as to Evidence, 679. 
 
 As Officer of Court, 680. 
 
 May Leave the Question to the 
 
 Coitrt, 680. 
 Witnesses. 680. 
 
 Should Hear all the Evidence 
 * Offered, 680. 
 
 Reope7iing the Case, 681. 
 Evidence de bene esse, 682. 
 
 11. He Controls the Proceed- 
 
 ings, 682. 
 Adjournments, 682. 
 Counsel, 683. 
 
 12. Arbitrators must Act to- 
 gether, 683. 
 
 Private and Public Matters, 
 
 684. 
 Need not Agree upon every 
 
 Question, 685. 
 
 13. Arbitrators must Hear the 
 
 Parties in Presence of Each 
 Other, 685. 
 
 Notice of Hearing, 685. 
 
 Of what Meetings Notice must 
 be Given, 686. 
 
 Waiver of Notice, 686. 
 
 14. Compensation, 686. 
 
 When Entitled to, 686. 
 Costs, 687. 
 Fees, 688. 
 
 15. Duration of Arbitrator's Au- 
 
 thority, 688. 
 Power Expires with the Mak- 
 ing of the Award, 689. 
 
 16. Umpire and Third Arbitra- 
 
 tor, 680. 
 Power of , 690. 
 Appointment of , 690. 
 * Must Act on his own Judgment, 
 
 691. 
 Must Sign the Award, 691. 
 
 not to withhold his consent arbitrarily, operating in any case of arbitrary re- 
 but only prevented the lessee's covenant fusal on the part of the lessor. 
 
 646 
 
Definition — Award. 
 
 ARBITRA TION. 
 
 At Common Law. 
 
 17. Arbitrators AS Witnesses, 691. 
 
 18. The Award, 692. 
 
 Form of, 692. 
 
 Under Statutes, 692. 
 
 Form of Words, 693. 
 
 Subject-matter, 693. 
 
 The Omission must be Proved, 
 694. 
 
 Must be Actually Submitted, 
 694. 
 
 Part of Submission With- 
 drawn, 695. 
 
 19. Must be Final and Certain, 
 
 695. 
 Intendments and Presumptions, 
 • 696. 
 
 Award need not Specify all 
 
 Matters Submitted, 697. 
 Title to Real Estate, 698. 
 Award in the Alternative, 698. 
 Certain as to Subject-matter, 
 
 698. 
 Certainty about Boundary-lines, 
 
 699-, 
 
 Certainty as to Persons, 699. 
 
 As to Time, 699. 
 
 Amount, 700. 
 
 Arbitrators can Reserve no Au- 
 thority, 701. 
 
 Ministerial Acts, 701. 
 
 20. Awards must be Mutual, 
 
 701. 
 
 Mutuality Must not Rest on 
 Outside Circumstances, 702. 
 
 21. Must be Entire, 703. 
 
 Award may Refer to Extrinsic 
 
 Documents, 703. 
 Awards under Statute, 704. 
 
 22. Must be Possible, 704. 
 
 23. Publication of, 704. 
 
 Delivery of, 705. 
 
 24. Impeachment of, 706. 
 
 Fraud, Partiality, Corruption, 
 707. 
 
 Fraud by Parties, 708. 
 
 Irregularity in Proceedings, 
 708. 
 
 Oath of Arbitrator, 709. 
 
 Adjournments, yog. 
 
 Evidence, 709. 
 
 Irregularity in Form, 709. 
 
 Mistakes of Fact, 709. 
 
 Must be Apparent, 710. 
 
 Award part Good, part Bad, 
 710. 
 ^Power of Court over Objection- 
 able Award, 711. 
 
 25. Effect of Award, 711. 
 
 Merger, 712. 
 
 On Matter not Submitted, 712. 
 On Real Estate Matters, 713. 
 Of Inadequate Award, "jii^. 
 On Strangers, 714. 
 Ratification of Award, 714. 
 Effect on Executors, etc., 715. 
 
 26. Enforcement of Award, 715. 
 
 Must have Performed his Part, 
 716. 
 
 1. Definition. — Arbitration is the investigation and determination 
 of a matter or matters of difference between contending parties 
 by one or more unofficial persons, chosen by the parties and 
 called arbitrators or referees.^ 
 
 2. Award. — The judgment of the arbitrators and also the paper 
 on which it is written are called an "award."** 
 
 3. At Common law. — At common law the matter of arbitration 
 is entirely voluntary with the parties to the matter in dispute; but 
 most States have enacted statutes prescribing a certain form for 
 submission to arbitration, and enforcing awards made thereon by 
 special proceedings in court ; in some States, as in Pennsylvania, 
 arbitration has been made compulsory on one party if the other 
 elects to settle the matter by arbitration. Generally, however, in 
 States where statutes exist regulating the matter it is left optional 
 with the parties to submit to arbitration according to common- 
 law or statutory rules.* 
 
 1. Bouvier Law Diet.; Worcester's 
 Diet.; 3 Blaek. Com. 16; Burchell v. 
 Marsh, 17 How. (U. S.) 344. 
 
 2. Bouvier's Inst. § 2496. 
 
 3. Wells V. Lain, 15 Wend. (N. Y.) 99; 
 
 647 
 
 Howard v. Sexton, 4 Comst. (N.Y.) 157; 
 Burnside v. Whitney, 21 N. Y. 148; Died- 
 rick V. Richley, 2 Hill (N. Y.), 271; Cope 
 V. Gilbert, 4 Den. (N. Y.) 347; Wood v. 
 Tunnicliff, 74 N. Y. 38; Farrington v. 
 
"Who can he Parties. 
 
 ARBITRA TION'. Control— Infants— Bankrupts. 
 
 4. Who Can be Parties to Arbitration. — Any person of legal ca- 
 pacity to contract may be a party to an arbitration. 
 
 Control. — But he must have such a control^ over the subject- 
 matter of the arbitration that he can carry out any orders em- 
 bodied in a legal award, and be, free from duress.* 
 
 Infants. — The submission to arbitration by an infant is treated 
 as contracts of infants in general. It has been held to be void, 
 but usually to be voidable ; and this refers to courts of law and of 
 equity.^ 
 
 Bankrupts. — Bankrupts cannot submit to arbitration without 
 the consent or ratification of their assignees; and assignees in sub- 
 mitting the matters of the bankrupt will be held personally liable 
 
 Hamblin, izWend. (N. Y.) 212; Cutter 
 V. Cutter, 48 N. Y. Super. Ct. 470; Logs- 
 don V. Roberts, 3 T. B. Mon. (Ky.) 255; 
 Overly v. Overly, I Mete. (Ky.) 117; 
 Evans v. McKinsey, 6 Litt. (Ky.) 262; 
 Thomasson v. Risk, 11 Bush (Ky.), 619; 
 Lusk V. Clayton, 70 N. Car. 184; Pierce 
 V. Kirby, 21 Wis. 124; Winne v. Elder- 
 kin, I Chandl. (Wis.) 219; Allen v. Chase, 
 3 Wis. 249; Lamar v. Nicholson. 7 Post 
 (Ala.), 158; Byrd v. Odem, 9 Ala 755; 
 Foust V. Hastings, 66 Iowa, 522; Love 
 V. Burns, 35 Iowa, 150; Conger v. Dpan, 
 
 3 Iowa, 463; s. c, 66 Am.i Dec. 93; Fink 
 V. Fink, 8 Iowa, 313; Titus v. Scaniling, 
 
 4 Blackf. (Ind.) 89; Carson v. Earlyvvine, 
 14 Ind. 256; IVIiller v. Goodwine, 29 Ind. 
 46; Smith V. Kirkpatrick, 58 Ind. 254; 
 Brown v. Kincaid, Wright (Ohio), 37; 
 Wilkes V. Cotter, 28 Ark. 519; Eisen- 
 meyer v. Sauter, 77 111, 515; Torrance v. 
 Amsden, 3 McL. (U. S. C. Ct.) 509; Rich- 
 ardson V. Cassily, 3 Watts (Pa ), 320; 
 Erie v. Tracy, 2 Grant (Pa.), Cas. 20; 
 Petit w. Wingate, 25 Pa. St. 74; Schneider 
 V, Gas & Coal Co., 98 Pa. St. 470; Dan- 
 ziger V. Williams, 91 Pa. St. 234; Watson 
 V. Wetter, 91 Pa. St. 385. But compare 
 Bulson V. Lohnes, 29 N. Y. 291. 
 
 It has even been held that where the 
 parties submitted to arbitration under 
 the statute rule, the party in whose favor 
 the award was given could enforce it, 
 either under the statute rule or under the 
 common-law rule. Dickerson v. Tyner, 
 4 Blackf. (Ind.) 253; Titus v. Scantling, 4 
 Blackf. (Ind.) 89. But compare Deerfield 
 V. Arms, 20 Pick. (Mass.) 480; s. c, 32 
 Am. Dec. 228; Pierce v. Kirby, 21 Wis. 
 124; Williams v. Walton, 9 Cal. 142. 
 
 And an arbitration which does not con- 
 form to statutory requirements may, 
 nevertheless, be good at common law; 
 and a common-law action will lie to en- 
 force it if it fairly disposes of the matter 
 in dispute and leaves nothing open to 
 controversy. Galloway v. Gibson, 51 
 Mich. 135; Willingham v. Harrell, 36 Ala. 
 
 583; Estep V. Larsh, 16 Ind. 82; Tyler v. 
 Dyer, 13 Me. 41; Tyiian v. Tate, 3 Neb. 
 388; Low V. Nolte, 16 111. 475. 
 
 So will a submission to one arbitrator 
 be upheld in Texas, where the statute re- 
 quires two arbitrators, although it would 
 not be a statutory arbitration. Myers 
 V. Easlerwood, 60 Tex. 107. 
 
 1. Morse on Arb. and Award, 3. 
 
 2. Bean v. Farnam, 6 Pick. (Mass.) 
 269; Brady v. Mayor of Brooklyn, i 
 Barb. (N. Y.) 584; Wyatt v. Benson, 23 
 Barb. (N. Y.) 327. 
 
 So may parties who are competent to 
 transfer real estate or exercise acts of 
 ownership over it refer their disputes 
 concerning it to arbitration. Cox v. Jag- 
 ger, 2 Cow. (N. Y.) 638; s. c, 14 Am. 
 Dec. 522. 
 
 A sold real estate to B without disclos- 
 ing the fact that he and his neighbor had 
 submitted a dispute about the boundary 
 line to arbitration. Held, that B was not 
 a party to the submission, and not bound 
 by a subsequent award. Emery v. Fow- 
 ler, 38 Me. 99. 
 
 A man under arrest for the same mat- 
 ter which forms the subject of the arbi- 
 tration is thereby not disqualified from 
 being a party to the arbitration. Shep- 
 hard v. Watrous, 3 Cai. (N. Y.) 166. 
 
 3. Rudston v. Yates, March, iii, 141; 
 Godfrey v. Wade, 6 Moore, 488; Evans 
 V. Cogan, 2 P. Wms. 450; Britton v. 
 Williams, 6 Munf. (Va.) 453; Handy v. 
 Cobb, 44 Miss. 699, 
 
 The decision will depend much upon 
 the merits of the case, however. So 
 where an infant submitted a claim for 
 damages for assault and battery to arbir 
 tration and received an award of fifty 
 dollars, and brought suit afterward, the 
 jury were instructed by the court to give 
 only nominal damages if they should 
 find that the infant had received adequate 
 compensation for the injury; but to give 
 a verdict for such additional sum as with 
 the fifty dollars already received would 
 
 648 
 
Who can be Parties, ARBITRA TION. Husband & Wife— Corporations. 
 
 on the award unless they are protected by statutes or specially 
 exempted by the terms of the submission. 
 
 Husband and Wife. — Whether a feme covert has a right to 
 bind herself by a submission independent of her husband, or 
 whether a husband has a right t.o submit matters concerning his 
 wife's estate independent of the wife, are matters largely regulated 
 by statutes^ It ought to be safe to lay down the rule substanti- 
 ally as follows : The wife may bind herself by her own sole sub- 
 mission in respect of any property in regard to which she has 
 the absolute power of disposal and conveyance by her own inde- 
 pendent and individual action; but she may not bind herself 
 otherwise than in respect of such property. The husband majr 
 bind the wife to any undertaking, provided that he has the power 
 to carry out the possible terms of the award without her joinder 
 or acquiescence; or provided that the law would enforce such 
 joinder or acquiescence, if it were legally indispensable to the due 
 performance of the award.* 
 
 Corporations. — A corporation, like an individual, may submit 
 matters in dispute to arbitration.* 
 
 Municipal Corporations. — -As a general proposition, municipal 
 corporations have the same power to liquidate claims and indebt- 
 edness that natural persons have, and from this proceeds power to 
 adjust all disputed, claims, and, when the amount is ascertained, to 
 pay the same as other indebtedness. A municipal corporation, 
 therefore, unless disabled by positive law, can submit to arbitration 
 all unsettled claims, with the same liability to perform the award 
 as would rest upon a natural person, but such power must be 
 exercised by ordinance or resolution of the corporate authorities.* 
 
 form a reasonable satisfaction if they motion for a preliminary injunction. <^n 
 
 found that the original award was inade- the ground, as slated in the order, "ihiit 
 
 quate. Baker v. Lovett, 6 Mass. 78; s. the court has no jurisdiction in this ai- 
 
 c, 4 Am. Dec. 88. tion." Held, error; as the plaintiff, 
 
 1. Morse on Arb. 30; 3 Pars, on although a foreign corporation, could iii- 
 Contr. 471; In ^.f Ford, l8 Nat. Bankr. voke the jurisdiction of the courts, and 
 Reg. 427. the individual defendants were residents 
 
 2. Morse on Arb. 26. of the State. Direct United States Cable 
 
 3. Morse on Arb. 5; Alexandria Ca- Co. v. Dominion Telegraph Co., 84 N. 
 nal Co. V. Swann, 5 How. (U. S.) 83; Y. 153. 
 
 Wood V. Auburn, etc.. R. Co., 4 Seld. 4. City of Shawneetown v. Baker, 85 
 
 (N. y.) 160; Madison Ins. Co. v. Griffin, 111. 563; Brady w. Mayor of Brooklyn^! 
 
 3 Ind. 277; Fryeburg Canal v. Frye, 5 Barb. (N. Y.) 584; Kane v. Fond du Lac, 
 
 Greenl. (Me.) 38. 40 Wis. 495; In re Arbitration between. 
 
 Two corporations organized under the Township of Eldon and Ferguson. 6 U. 
 
 laws of Great Britain entered into an C. L. J. 207. See rule as stated in Dillon 
 
 agreement, which provided, in case of on Mun. Corps. (3d Ed.) § 478. " Cor- 
 
 diflerence, for arbitrators to be appointed porations, sole and aggregate, may, if 
 
 and to act in this State, having the povy- not disabled, submit disputes relating ta 
 
 ers given to arbitrators under the Eng- the corporate property to arbitration, and 
 
 lish common-law procedure, their award their successors will be bound thereby; 
 
 to be made a rule of the Queen's Bench, but in the case of corporations aggregate. 
 
 In an action brought by one of said cor- it must be the act of the whole corporate 
 
 porations against the other, and arbitra- body, as by the dean and chapter, the 
 
 tors appointed under the agreement, to mayor and commonalty, the master and 
 
 restrain the prosecution of the arbitra- his fellows." Billings, Law of Award 
 
 tion, the special term denied plaintiff's (L. L.), 42. 
 
 649 
 
yfho can be Parties. 
 
 ARBITRATION. 
 
 Municipal Corporations. 
 
 Partners. — One partner has no right to submit the partnership's 
 
 One of the earliest decided cases con- 
 cerning the right of a municipality to 
 submit the settlement of disputed ques- 
 tions to arbitration is the case ot the 
 Magistrates -bi Edinburgh. After . the 
 occurrence of a great fire in Edinburgh it 
 was regarded as an important object of 
 , TUblic policy that all the new tenements 
 to be erected on the site of the conflagra- 
 tion "should be of stone-work." and 
 should be otherwise constructed with a 
 ■due regard to the safety of the city 
 .against fire, as well as to its improved 
 .appearance. With this view, an amicable 
 Arrangement seems to have been made, 
 in the form %^ a '"submirsion by the 
 whole neighbors of Edinburgh" to the 
 ■magistrates and council, to which the 
 privy council interponed an act of ratifi- 
 cation, and under which powers were 
 given to the arbiters to regulate as to the 
 building of the new tenements. An 
 Attempt being made by one of the citizens 
 to evade his obligations under the con- 
 tract of submission, on the allegation of 
 " enorme lesion or injustice," it was 
 repelled by a decision the report of which 
 las handed down some notice of the 
 transaction. The Magistrates of Edin- 
 burgh, I Suppt. 732, Feb. 12, 1675, 
 reported in Gosford's Reports. 
 
 A resolution or ordinance adopted at a 
 meeting of the common council submit- 
 ting a question to arbitration need not be 
 Tinder the corporate seal. Brady v. 
 Brooklyn, i Barb. (N. Y.) 584. 
 
 The common council may intrust the 
 ■selection of arbitrators to the city at- 
 torney. Kane v. Fond du Lac, 40 Wis. 
 
 495- 
 
 The selectmen of a town have power 
 to submit to arbitration any such claims 
 against the town as they are by statute 
 authorized to audit and adjust, and the 
 town will be bound by an award made in 
 pursuance of such commission... Dix v. 
 Town of Dummerston. 19 Vt. 263. 
 
 But they are not empowered, virtute 
 4)fficii, to submit to arbitration a question 
 regarding the settlement of a pauper 
 which involves the right or liability of 
 the town. Town of Griswold v. Town 
 of North Stonington, 5 Conn. 367. 
 
 In Maine it has been held that the 
 overseers of the poor of a town have not 
 the power, ex officio, to submit a claim on 
 tehalf of a pauper to arbitration. The 
 plaintiff, a woman of feeble understand- 
 ing, who had lived in the family of the 
 defendant as a servant, afterwards be- 
 came chargeable to the town as a pauper. 
 The overseers of the poor made a de- 
 
 mand against the defendant for the 
 balance claimed as her wages to be 
 applied in her support. This demand 
 the defendant and overseers jointly sub- 
 mitied to the determination of certain 
 referees, who awarded a balance due 
 from the defendant which he refused to 
 pay. Upon an action brought in the 
 name of the pauper upon this award, it 
 was held that the overseers of the poor 
 had no authority, by virtue of their office, 
 to bind the pauper by their submission, 
 and that the award was therefore void 
 for want of mutuality in reference. Fur- 
 bish V. Hall, 8 Greenl. (Me.) 315. 
 
 Where, however, one has submitted 
 his claim against a town to arbitration, 
 and has appeared before, and been fully 
 heard by, the arbitrators, he cannot, 
 after an adverse decision, dispute ihe 
 authority of the selectmen of the town to 
 enter into the submission on its behalf. 
 Campbell v. Upton, 113 Mass. 67. 
 
 The authority to prosecute or defend 
 a suit implies a power to refer it by rule 
 of court, that being a legal mode of 
 prosecuting or defending. And when a 
 municipal corporation appointed agents 
 to prosecute an action, and the agents 
 thus appointed employed an attorney, by 
 whose assent the submission was made, 
 held, that it was binding upon the 
 municipality. Buckland v. Conway, 16 
 Mass. 395. 
 
 An agreement by which a city under- 
 takes with the owners of land taken for a 
 street to submit the assessment of dam- 
 ages and betterments to arbitration is 
 ultra viies and void; and the city cannot 
 maintain an action to enforce an award 
 made under such submission. City of 
 Sommerville v. Dickerman, 127 Mass. 
 272. 
 
 A claim against a municipal corporation 
 for damages arising from a change in the 
 grade of a street cannot form the subject 
 of arbitiation under the statute. Osborn 
 V. City of Fall River, 13 Am. & Eng. 
 Corp. Cas. 534. 
 
 The abutters on a street in Boston 
 entered into an agreement with a com- 
 mittee of the selectmen of said town for 
 the widening of the street. They nfiutu- 
 ally promised each other to submit to the 
 award of certain arbitrators concerning 
 what each should pay or receive on 
 account of the premises, according to the 
 damage or benefit tliey should respect- 
 ively receive. An action was sustained 
 by the inhabitants of Boston, on the 
 agreement, against one of the abutters 
 for the sum he was awarded to pay, 
 
 650 
 
Who can be Parties. 
 
 ARBITRATION. 
 
 Fartners, 
 
 affairs to arbitration without the express consent of the other 
 partners. All the partners must be parties to the arbitration.^ 
 
 although the said widening had not been 
 recorded; and the money was awarded 
 to be paid to the other abutters and not 
 to the inhabitants; and a pairt of it was 
 to be paid to an abutter who was not a 
 party to the agreement. Boston v. 
 Brazier, ii Mass. 447. 
 
 Where the law imposes a personal 
 duty upon an officer in relation to a 
 matter of public interest he cannot dele- 
 gate it to others, and therefore such 
 officer cannot submit such matters to 
 arbitration. So, where commissioners 
 cf highways are unable to agree with the 
 owner of land over which a highway is 
 sought to be laid out, as to the damages 
 to be paid him, they have no authority to 
 submit the question of such damages to 
 arbitration and thus bind their town. 
 Mann v. Richardson, 66 111. 481. 
 
 But in Vermont, where a town at an 
 annual meeting appointed an agent to 
 compromise a disputed claim for damages 
 on account of a road laid across plain- 
 tiff's land by the selectmen, and such 
 agent referred the question of the amount 
 to be paid to arbitrators, it was held that 
 the town was bound by the award. 
 Schoof V. Town of Bloomfield, 8 Vt. 472. 
 
 The county commissioners in Nebraslta 
 can only locate public roads and erect 
 bridges thereon in the manner provided 
 by law. The commissioners of Otoe 
 County made a contract with one McCann 
 to purchase a private bridge over the 
 Nemoha River, and arbitrators were se- 
 lected by the parties to appraise the same 
 and damages for right of way across 
 McCann 's land. Held, that the award 
 was a nullity. McCann v. Commission- 
 ers of Otoe Co., g Neb. 324. 
 
 In Kentucky it is held that the county 
 court may submit matters in controversy 
 between it and a contractor for building 
 a bridge for the county, and the contrac- 
 tor may maintain his action against the 
 county court to recover the amount of 
 the award of the arbitrators in his favor. 
 Remington, etc.; v. Harrison County 
 Court. 12 Bush (Ky.), 148. 
 
 A State may drop its sovereignty and 
 its exemption from suits, and by a 
 legislative act submit claims against it in 
 dispute to arbitration. And where it 
 does consent to arbitration, the agree- 
 ment is necessarily implied that the 
 award to be made is to be legal, and, if 
 it is not, that either party shall have the 
 right to show its illegality by legal pro- 
 ceedings. State W.Ward, 9 Heisk. (Tenn.) 
 100. 
 
 A matter cannot be submitted to arbi- 
 tration on behalf of the United States 
 without a special act of Congress author- 
 izing such submission. The-United States 
 had machinery in operation, carried by 
 water, on land which had bee'n sold to them 
 and over which jurisdiction had been 
 ceded to them by the State of Massachu- 
 setts. A. owned mills above and below 
 them on the same stream, and the dams 
 of each party flowed back so as to obstruct 
 the other. A submission of the matters 
 in dispute was entered into by A., on the 
 one part, and by the district attorney 
 authorized by the S«)licit»i%f the Treasury 
 or War Department, on the other part, 
 but without any authority from Congress; 
 and an award was made thereon, pre- 
 scribing the height of the dam. The 
 United States afterwards brought an 
 action of trespass against A. for flowing 
 their land. He pleaded a special bar of 
 the award, alleging that he had complied 
 with its terms On general demurrer, it 
 was held that the special plea could not 
 be sustained. Held, also, that no officer 
 of the United States has authority to 
 enter into a submission in their behalf 
 which shall be binding on them, unless 
 the power is given by the special act of 
 Congress. United Slates v. Ames, i W. 
 & M. (C. C.) 76. See also Smith v. 
 Raleigh, 3 Am. & Eng. Corp. Cas. 615. 
 
 Where differences arise between a 
 public corporation and one of its officers, 
 it is lawful to submit them to arbitration 
 for settlement. Distr. Tp. of Walnut v. 
 Rankin, 29 N. Western Repr. (Iowa) 806. 
 
 1. Backus V. Coyne, 35 Mich. 5; Kart- 
 haus w. Ferrer, i Pet. (U. S.) 222; Jones 
 w. Bailey, 5 Cal. 345; Wood v. Shepherd, 
 2 Patt. & H. (Va.) 442; Davis v. Berger, 
 54 Mich. 652; Buchoz v. Grandjean. i 
 Mich. 367; Martin v. Thrasher, 40 Vt. 
 460; Buchanan W.Curry, 19 Johns. (N.Y.) 
 137; s. c, ID Am. Dec. 200; Harrington 
 V. Higham. 13 Barb. (N. Y.) 660; Hut- 
 chins V, Johnson, 12 Conn. 376; s. c, 30 
 Am Dec. 622; Eastman v. Burleigh, 2 
 N. H. 484. 
 
 In Pennsylvania, Kentucky, Ohio, and 
 Illinois, however, Qne partner can bind 
 his copartner by a submission to arbitra- 
 tion not under seal in partnership mat- 
 ters. Taylor v. Coryell, 12 S. & R. (Pa.) 
 243; Gay V. Waltman, 89 Pa. St. 453; 
 Soulhard v. Steele. 3 T. B. Monr, (Ky.) 
 453; Hallack -u. March, 25 111. 48; Wil- 
 cox V. Singletary, Wright, Ohio, 420. 
 
 The consent of the other partner need, 
 however, not be given in a formal way: 
 
 651 
 
Who can be Parties. 
 
 ARBITRATION. 
 
 Agents. 
 
 Agents. — Without express authority an agent cannot submit the 
 matters of his principal to arbitration ; not even where he has in- 
 struction's to settle out of court if possible.^ 
 
 it may be implied from circumstances. 
 Russell on Arb. 20; Mackay v. Blood- 
 good, 9 Johns. (N. Y.) 285; McBride v. 
 Hagan, i Wend. (N. Y.) 326; Davis v. 
 Berger. 54 Mich. 652. But compare Mar- 
 tin V. Thrasher, 40 Vt. 460, where it was 
 held that the mere presence of the part- 
 ner at the signing of the award did not 
 imply consent. 
 
 Consent must' be given before the 
 award is rendered. Eastman v. Bur- 
 leigh, 2 N. H. 484; Mackay v. Blood- 
 good, 9 Johns. (N. Y.) 285. 
 
 A joinder of partners in suing out a 
 writ of error to review the judgment on 
 an award against the firm has the effect 
 of affirming the authority delegated to 
 one partner to submit to arbitration. 
 Davis V. Berger, 54 Mich. 652. 
 
 The partner who submits a partnership 
 matter without consent of the other part- 
 ners is bound by the award. Brink v. 
 Amsterdam, etc., Ins. Co., 5 Robt. (N. Y.) 
 104; Buchanan v. Curry, 19 Johns. (N. Y.) 
 137; s. c, 10 Am. Dec. 200; Dater v. 
 Wellington, I Hill (N. Y.), 319; McBride 
 V. Hagan, i Wend. (N. Y.) 326; Jones v. 
 Bailay, 5 Cal. 345; Wood v. Shepherd, 2 
 Patt. & H. (Va.) 442; Karthausz/. Ferrer, 
 I Pet. (U. S.) 222; Armstrong v. Robin- 
 son, 5 Gill & J. (Md.) 412. 
 
 The same principle holds good of an 
 award rendered against two parties, not 
 partners, one of whom did not submit. 
 Mathews v. Mathews, I Heisk. (Tenn.) 
 669; Woodward w. Woodward, 14 111. 466. 
 
 And if the not-submitting partner re- 
 fuses to comply with the requirements of 
 the award, the submitting partner will in- 
 dividually be liable for the whole. Rus- 
 sell on Arb. 20. 
 
 Where, however, a settlement between 
 one partner and a debtor of the firm has 
 been arrived at by arbitration and the 
 amount awarded had been paid by the 
 debtor, and the acting partner had in- 
 dorsed a receipt and acknowledgment of 
 satisfaction on the award, it was held to 
 bind the other partner and to act as an 
 accord and satisfaction. Buchanan v. 
 Curry, 19 Johns. (N. Y.) 137; s. c, 10 
 Am. Dec. 200. 
 
 Parties who have a joint interest in the 
 same matter as joint heirs cannot indi- 
 vidually submit their interests to arbitra- 
 tion and bind the others. Only those 
 who submit are bound by the award. 
 Eastman v. Burleigh, 2 N. H.485; Smith 
 ■V. Smith, 4 Rand. (Va.) 95; Boyd 0. 
 Magruder, 2 Robins. (Va.) 761. 
 
 1. Scarborough -v. Reynolds, 12 Ala. 
 252; Ruber v. Zimmerman, 21 Ala. 4S8; 
 s. c, 56 Ani. Dec. 255; Cox v. lay, 54 
 Vt. 446; Mich. Centr. R. Co. v. Gongar, 
 55 111. 503; Trout V. Emmons, 29 III. 433; 
 McPherson v. Cox, 85 N. Y. 472; Low- 
 enstein v. Mcintosh, 37 Barb. (N. Y.) 251; 
 Alexandria Canal Co. v. Swann, 5 How. 
 (U. S.) 83. 
 
 An officer of the United States cannot 
 submit matters of the United Siate» 10 
 arbitration so as to bind ihem by the 
 award, unless Such power be given to 
 him by special a.ct of Congress. United 
 Stalest'. Ames, i Woodb. & M. (U. S.) 76. 
 
 Neither can matters of public interest 
 and trust be submitted to arbitration by 
 the officer to whom they are intrusted. 
 He cannot delegate his power. Mann v. 
 Richardson, 66 111. 481. 
 
 A factor cannot bind his principal by 
 submitting to arbitration a claim for 
 damages arising out of an alleged breach 
 of an implied warranty of the quality of 
 the thing sold. Carnochan v. Gould, i 
 Bailey's L. (S. Car.) 179; s. c, 19 Am. 
 Dec. 668. 
 
 Nor can a broker submit his principal's 
 matters to arbitration. Ingraham v. 
 Whitmore, 75 111. 24. 
 
 Attorneys are excepted from this rule. 
 Holkner v. Parker, 7 Cranch. (U. S.) 436; 
 Talbot V. McGee, 4 T. B. Mon. (Ky.) 
 377; Alexandria Canal Co. v. Swann. 5 
 How. (U; S.) 83; Bates v. Visher, 2 Cal. 
 355; Smith V. Bossard, 2 McChord's Ch. 
 (S. Car.) 406; Buckland v. Conway, i5 
 Mass. 396; White v. Davidson, 8 Md. 169; 
 s. c, 17 Am. Dec. 699; Jenkins v. Gille.- 
 pie, 10 S. & M. (Miss.) 31; s. c, 48 Am. 
 Dec. 732; Brooks v. New Durham, 55 
 N. H. 5591 Pike v. Emerson, 5 N. H. 
 393; s. c, 22 Am. Dec. 468; Wade w. 
 Powell, 31 Ga. i; Morris v. Grier, 76 N, 
 Car. 410; Stokeley v. Robinson, 34 Pa. 
 St. 315; Evars v. Kamphaus, 59 Pa. St. 
 379; Somers v. Balabrega, i Dall. (Pa.) 
 164; Williams v. Danziger, 91 Pa. St. 232; 
 Cahill V. Benn, 6 Binn. (Pa) 99; Cole- 
 man V. Grubb, 23 Pa. St. 393; Wilson v. 
 Young, 9 Barr. (Pa.) loi; Bingham v. 
 Guthrie, 19 Pa. St. 418; Beverly v. Ste- 
 phens. 17 Ala. 701. But compare Tilton 
 V. U. S. Life Ins. Co., 8 Daly (N. Y.i. 84. 
 
 The general doctrine that an attorney 
 has power to submit a matter in dispute 
 to arbitration is limited to the case where 
 there is a cause pending which he has 
 been employed to manage. Jenkins u. 
 Gillespie, iS Miss. 31; Scarborough v. 
 
 653 
 
HTho can be Parties. 
 
 ARBITRA TION. Executors and Administrators. 
 
 Executors and Administrators. — Executors and administrators 
 have by power of their office the right to submit to arbitration 
 
 Reynolds, 12 Ala. 252; Markley v. Amos, 
 8 Rich. L. (S. Car.) 468. 
 
 In Pennsylvania an attorney cannot 
 submit matters of his client to arbitration 
 when it would endanger the client's title 
 to real estate; as where by the award 
 land is taken instead of money. Huston 
 V. Mitchell, 14 S. & R. (Pa.) 307; Pear- 
 son V. Morrison, 2 S. & R. (Pa.) 20; Na- 
 glee V. Ingersoll, 7 Pa. St. 185. 
 
 An attorney-at-law may bind his client 
 by an agreement, signed by him without 
 an express warrant of attorney, to submit 
 the matters in dispute in a pending action 
 of ejeciment (where the principal conten- 
 tion was one of boundary and not title) 
 to arbitrators, whose decision shall be 
 final, without right to writ of error. In 
 such case where, in pursuance of the sub- 
 mission, judgment was entered on the 
 award, a writ of error taken to such judg- 
 ment by the unsuccessful party will not 
 lie. Sargeant v. Clark, 108 Pa. St. 588. 
 
 An agent who has received express au- 
 thority to submit the matters of his prin- 
 cipal to arbitration must keep strictly to 
 his authority. Authorily lo refer to A 
 does not include the right to refer to B if 
 A refuses to serve. Cox v. Fay, 54 Vt. 
 446. 
 
 General usage or a rule of court may 
 impliedly or directly confer upon an 
 agent power to submit for his principal. 
 2 Pars, on Contr. 689; Buckland v. Con- 
 way, 16 Mass: 396. 
 
 So may an agent appointed by a town, 
 to compromise a claim against the town 
 for damages, submit the claim on behalf 
 of the town. Schoff v. Bloomiield, 8 Vt. 
 
 472- ■ 
 
 A board of supervisors has the right. 
 People V. Supervisors, 24 Hun (N. Y.), 
 
 413- ., ^ 
 
 Selectmen and common councils have, 
 as a rule, power to submit to arbitration 
 matters relating to the town which they 
 represent. It depends, however, largely 
 on the powers conferred upon them by 
 statute or town resolutions. Dix v. Dum- 
 merston, ig Vt. 262; Boston v. Brazer, 
 II Mass. 447; Brady v. Mayor of Brook- 
 lyn, I Barb. (N. Y.) 584; Hollisier v. 
 Pawlet, 43 Vt. 425. Compare Griswold v. 
 N. Stonington, 5 Conn. 367. 
 
 But a submission cannot be made by a 
 selectman from each of three towns re- 
 spectively. Authority to arbitrate can 
 proceed only from the board of select- 
 men. Haddam v. East Lyme, 5 Atl. 
 Rep. (Conn.) 368. 
 
 A person who underwrites and settles 
 losses for another has implied authority 
 from him to refer to arbitration a dispute 
 about a loss. Goodson v. Brooke, 4 
 Camp. 163; Hine v. Stephens, 33 Conn. 
 
 497- 
 
 The captain of a ship when unable to 
 communicate with the owners may, sub- 
 mit a claim for salvage; but he must act 
 in entire good faith, and the arbitrators 
 be worthy of trust. Houseman w. 
 Schooner North Carolina, 15 Pet. (U. S.) 
 40. 
 
 When a member of a partnership firm 
 gave his son a power of attorney to act 
 on his behalf in dissolving the partner- 
 ship, with authority to appoint any oiher 
 person as he may see fit, it was held that 
 this gave the son power to submit the ac- 
 counts to arbitration. Henley v. Soper, 
 8 B. & C. 16. 
 
 An agent appointed to prosecute and 
 defend a suit has, like an attorney, a 
 power to submit the matter to arbitra- 
 tion by rule of court. Buckland v. Con- 
 way, 16 Mass. 396. 
 
 A sold real estate to B without dis- 
 closing the fact that he and his neighbor 
 had submitted a dispute about the bound- 
 ary-line to arbitration. Held, that B 
 was not bound by a subsequent award. 
 Emery v. Fowler, 38 Me. 99. 
 
 Where an agent not authorized to sub- 
 mit his principal's matters to arbitration 
 still did so, and an award is rendered, 
 ihe principal may (■atify the act of his 
 agent, and such ratification may be im- 
 plied from circumstances. Detroit v. 
 Jackson, i Dougl. (Mich.) 106; Diedrick 
 V. Richley, 2 Hill (N. Y.), 271; Fryeburg 
 Canal v. Frye, 5 Greenl. (Me.) 38; Furber 
 ■V. Chamberlain, 9 Fost. (N. H.) 405; 
 Perry v. Mulligan, 58 Ga. 479; Isaac v. 
 Beth Hamedash Society, i Hilt. (N. Y.) 
 469. 
 
 Where a city attorney, after praying 
 for an appeal from a judgment against 
 the city, agreed with counsel for the 
 plaintiff to submit the question of the 
 liability of the city to the arbitrament and 
 decision of an arbitrator, if the city coun- 
 cil, after the lapse of several months, 
 made no objection to the agreement to 
 arbitrate, and afterward availed of the 
 decision of the referee by bringing suit 
 to have his decision carried into effect, it 
 was held that the other party could not 
 avoid the effect of the award on the 
 ground of want of authority on the part 
 of the, city attorney to bind the city by 
 
 653 
 
Who may be Parties. 
 
 ARBITRA TION. 
 
 Under Statutes. 
 
 matters regarding the estate under their administration as a result 
 of their power to bring and defend suits.^ 
 
 Guardians. — A guardian has the power to submit matters con- 
 cerning his ward. An award duly performed will bind the ward 
 when coming of age.** 
 
 Overseers of the Poor \\^N& no authority as such to control the 
 property of paupers, and to submit their claims to arbitration.* 
 
 5. Submissions. — Under Statutes. — Submissions to arbitration 
 under statutory regulations must in form comply with the require- 
 ments of the statute.* 
 
 his agreement. Connett v. Chicago, 114 Fairf. (Me.) 137; Wesion v. Stewart, 2 
 
 111. 233. 
 
 So where after submission bytheagent 
 the principal attends by agent and attor- 
 ney and does not object to the proceed- 
 ings, this will be a ratifiraiion of the 
 agent's act. Memphis & Charleston R. 
 Co. V. Scruggs, 50 Miss. 284. 
 
 And where the principal, after the 
 award had been rendered without his 
 authority, took an assignment of the 
 award to himself and then assigned it to 
 a stranger, it was held that these were 
 emphatic acts of ratification. Lowen- 
 stein V. Mcintosh, 37 Barb. (N. Y.) 251. 
 
 An agent submitted to arbitration mat- 
 ters concerning some real estate which he 
 supposed to belong to his principal. He 
 afterward learned that the property be- 
 longed to his principal's wile, and in- 
 formed the other parties, proposing 10 
 alter the submission accordingly. The 
 other party, however, refused, saying, 
 "It is good enough as it is." The pro- 
 ceedings then continued with full knowl- 
 edge of the wife, who did not object. 
 Held to be a ratification. Smith v. 
 Sweeney, 35 N. Y. 291. 
 
 An agent authorized to submit matters 
 of his principal to arbitration, and who 
 wishes to bind only his principal by the 
 award, must distinctly state so in his sub- 
 mission. If he merely enters into the 
 submission in his own name, or if he 
 merely describes himself as "agent," he 
 will be personally bound by the award. 
 Winsor v. Griggs, 5 Cush. (Mass.) 210; 
 Smith v.M&n Nostrand, 5 Hill,(N. Y.), 419. 
 
 1. Wood V. Tunnicliff, 74 N. Y. 38; 
 Russell If. Lane, i Barb. (N. Y.) 519; Yar- 
 borough V. Leggett, 14 "Tex. 677; Ailing 
 V. Munson, 2 Conn. 691; Chadbourn v. 
 Chadbourn, 9 Allen (Mass.), 173; Coffin 
 V. Coitle, 4 Pick. (Mass.) 454; Bean v. 
 Farnam, 6 Pick. (Mass.) 269; Jones v. 
 Deyer, 16 Ala. 221; Merchants' Bank v. 
 Rawis, 21 Ga. 334; Overly v. Overly, i 
 Mete. (Ky.) 117; Logsdon v. Roberts' 
 Exrs., 3 T. B. Monr. (Ky.) 256; Kendall 
 V. Bates, 35 Me. 357; Eaton v. Cole, i 
 
 Fairf. (Me.) 326; Wheatley v. Martin, 6 
 Leigh (Va.), 62; Sirodes v. Patton, i 
 Brock (U. S.), 228. But compare Lattier 
 V. Rachal, I2 La. Ann. 695; Clark v. 
 Hogle, 52 111. 427; Reitzell v. Miller, 25 
 111. 67. 
 
 This power extends, however, only to 
 matters over which they have control. 
 When an administrator has no control 
 over the real estate of the deceased he 
 cannot submit matters concerning such 
 realty. Bridgham v. Prince, 33 Me. 174. 
 
 2. Strong V. Beroujon, 18 Ala. i68- 
 Weston V. Stuart, 11 Me. 326; Goleman 
 v. Turner, 14 S. & M. (.Vliss.) 118; 
 McComb V. Turner, 14 S. & M. (Miss.) 
 119; Weed V. Ellis, 3 Cai. (N. Y.) 253; 
 Beebe v. Trafford, Kirby (Conn.), 215; 
 Bean v. Farnam, 6 Pick. (Mass.) 269. 
 
 This does, however, not apply to 
 guardians ad litem. Fort v. Battle, 13 S. 
 & M. (Miss.) 133; Hannum v. Wallace, 
 9 Humph. (Tenn.) 169. 
 
 3. Furbish v. Hall, 8 Me. 315. 
 
 4. Price v. Byne, 57 Ga. 176; Jones v.- ' 
 Payne, 41 Ga. 23; McGunn v. Hanlen, 
 29 Mich. 476; Healy v. Isaacs, 73 Ind. 
 226; Boots V. Canine, 58 Ipd. 450; Fran- 
 cis V. Ames, 14 Ind. 251; Moody v. Nel- 
 son, 60 111. 229; Foust V. Hastings, 66 
 Iowa, 522; Sargent v. Hampden, 29 Me. 
 70; Smith V. Pollock, 2 Cal. 92; Painter 
 V. Kisller, 59 Pa. St. 331; Cotton v. 
 Babcock, 64 Pa. St. 462; Wright v. Rad- 
 din, 100 Mass. 319. 
 
 Where a statute requires a submissioa 
 to be under seal, a seal must be attached 
 by one who has authority to attach it. 
 Hamilton v. Hamilton, 27 111. 158; Bur- 
 nett V. Gould, 27 Hun (N. Y.), 366; Mad- 
 ison Ins. Co. V. Griffin, 3 Ind. 277. 
 
 Or when required to be in writing, a 
 verbal submission will be void. McClen- 
 don V. Kemp, 18 La. Ann. 162; Raguet 
 V. Carmouche, 5 La. Ann. 133; Boots v. 
 Canine, 58 Ind. 450. 
 
 Where the statute requires the instru- 
 ment to be acknowledged. Fink v. Fink, 
 8 Iowa, 313; Abbott v. Dexter, Cush. 
 
 654 
 
Submissions. 
 
 ARBITRATION. 
 
 Intent — At Common i.bw. 
 
 Intent of Parties. — In many of the States, however, the strict- 
 ness of the statutory rules has been much relaxed. The courts, 
 as a rule, will uphold a submission according to the obvious 
 intent of the parties, and seem to be inclined to a presumption 
 favorable to the validity of the instrument.^ 
 
 At Common Law. — A submission at common law may be either 
 oral, in writing, or under seal. It depends on the subject-matter 
 of the arbitration. So if writing is necessary to pass the title to 
 the thing in controversy, a valid award, disposing of such title, 
 must be under a written submission ; and if the award is to decide 
 upon the validity of a sealed instrument the submission must be 
 under seal.® 
 
 (Mass.) I08; Gibson v. Burrows, 41 Mich. 
 713; Davis V. Berger, 54 Mich. 652; 
 Barney v. Flower, 27 Minn. 403. Or 
 where it is required that a specifica- 
 tion of demand be attached under the 
 hand of the party mailing it, the statute 
 must be followed. Bullard v. Coolidge, 
 3 Mass. 324; Pierce v. Pierce, 30 Me. 113; 
 Smith V. Kimball, i N. H. 72; Mansfield 
 V. Doughty, 3 Mass. 398. 
 
 Where the statute requires three arbi- 
 trators, submission to one is void. 
 Bowes V. French, 2 Fairf. (Me.) 182; 
 Monosiet v. Post, 4 Mass. 532. See 
 Reading, etc., Co. v. Graeff, 64 Pa. St. 
 
 395- 
 
 1. McAdams v. Stillwell, 13 Pa. St. 90; 
 Large v. Passmore, 5 S. & R. (Pa.) 51; 
 Harrisf. Hayes. 6 Binn. (Pa.) 422; Wynn 
 V. Bellas, 34 Pa. St. 160; Kimmel v. 
 Shank, I S. & R. (Pa.) 24; O'Kison v. 
 Flickingei-, i Watts & S. (Pa.) 257; Mas- 
 sey V. Thomas, 6 Binn. (Pa.) 333; Bemus 
 ■V. Quiggle, 7 Watts (Pa.), 363; Hill v. 
 Taylor, 15 Wis. 190; Clement v. Com- 
 stock, 2 Mich. 359; Wright v. Raddin, 
 100 Mass. 319; Howard v. Sexton, i Den. 
 (N. Y.) 440; Houghton v. Houghton, 37 
 Me. 72; Tuscaloosa Bridge Co. v. Jemi- 
 son. 33 Ala. 476; Barnett v. Peck, 6 Vt. 
 456; White V. Fox, 29 Conn. 570; Halli- 
 burton V. Flowers, 12 Heisk. (Tenn.) 25. 
 And see SkiUing v. Coolidge, 14 Mass. 
 43, as to acknowledgment; Humphrey v. 
 Strong, 14 Mass. 262; Harmon v. Jen- 
 nings, 22 Me. 240; Inman v. Wheeler, 1 
 Pick. (Mass.) 504; Wood v. Holden, 45 
 Me. 374; Kendall v. Bates, 35 Me. 357; 
 Barnett v. Peck, 6 Vt. 456, as to specifi- 
 cation of demand attached; also Withers 
 ■V. Haines, 2 Barr. (Pa.) 435, as to the 
 number of arbitrators. 
 
 In Price v. Kirby, i Ala. 184, it was 
 held that an oral agreement to refer will 
 not necessarily totally avoid the submis- 
 sion, although the statute requires it to 
 be in writing. See Wells v. Lain, 15 
 
 Wend. (N. Y.) gg; Bulsom v. Lampman,. 
 I Kans. 324. 
 
 Where, however, the submission pro- 
 fesses to be in accordance with the stat- 
 utes, but is clearly inconsistent with it in 
 a material point, it will be considered 
 that it has not been the intention of the- 
 parties to be ruled by the statute. South 
 Carolina R. Co. u. Moore, 28 Ga. 398; 
 s. c, 73 Am. Dec. 778. 
 
 a. Phelps V. Dolan, 75 111. 90; Smith 
 V. Douglass, 16 111. 34; Dilks v: Ham- 
 mond, 86 Ind. 563; Titus v. Scantling, 4 
 Blackf. (Ind.) 89; Carson v. Earlywine, 
 14 Ind. 256; Byrd v. Odem, 9 Ala. 755; 
 Martin v. Chapman, i Ala. 278; Winne 
 ■V. Elderkin, i Chand. (Wis.) 219; Valen- 
 tine V. Valentine, 2 Barb. Ch. (N. Y.> 
 430; French v. New, 20 Barb. (N. Y.) 
 481; Philbrick v. Preble,- 18 Me. 255; s. 
 c, 36 Am. Dec. 718; McMullen v. Mayo, 
 8 Sm. & M. (Miss.) 298 ; Logsdon v. 
 Roberts, 3 T. B. Monr. (Ky.)255; Evans 
 V. McKinsey, 6 Litt. (Ky.) 262; Stark v. 
 Cannady, 3 Litt. (Ky.) 399; s. c, 14 Am. 
 Dec. 76. 
 
 A parol submission must be clearly- 
 established to make the award foUowing^ 
 it effective. Koon v. HoUingswortb, 97 
 111. 52. 
 
 So upon general principles an award 
 upon a parol submission is unavailing to 
 vest a title to lands. The right to title 
 to freehold estate can only be transferred, 
 by deed. Miller v. Graham, i Brev. 
 (S. Car.) 448. 
 
 But only where the ' ' title'' to real 
 estate is affected is the submission re- 
 quired to be under seal. All other ques- 
 tions relating to real estate may be sub- 
 mitted without a seal. Jackson v. Gager, 
 5 Cow. (N. Y ) 383; Mitchell v. Bush, 7 
 Cow. (N. Y.) 185; Palmer v. Davis, 28 
 N. Y. 242 ; French v. Richardson, 5 
 Cush. (Mass.) 450; Snodgrass v. Smith, 
 13 Ind. 393; Fryetiurg Canal Co. v. Frye, 
 5 Greenl. (Me.) 38; Stark v. Cannady, 3. 
 
 655 
 
S<}1)mi3sions, 
 
 ARBITRATION. 
 
 Form. 
 
 Form of Submission. — A submission at common law may be in 
 any lorm of words. It' is sufficient if an intention is expressed to 
 submit to and abide by the award of the arbitrators.^ 
 
 Litt. (Ky.) 399; s. c, 14 Am. Dec. 76. 
 Compare Copeland z'. Wading River, etc., 
 Co., 105 Mass. 397. 
 
 Matters relating to the price of land 
 may be submitted by parol. Davy v. 
 Faw, 7 Cranch (U. S.), 172; Weston v. 
 Stuart, 2 Fairf. (Me.) 326. » 
 
 A submission concerning damages 
 growing out of a contract touching real 
 estate need not be by deed. Carson v. 
 Earlywine, 14 Ind. 256. 
 
 Nor a submission to settle a question 
 about a boundary-line where nothing 
 passes. Stewart v. Cass, 1 6 Vt. 663; s. 
 c, 42 Am. Dec. 534; Bowen v. Cooper, 7 
 Watts (Pa.), 311. 
 
 An oral submission in a dispute about 
 rent due for past occupancy under an 
 oral agreement to pay rent will be valid. 
 It does not concern an interest in real 
 estate. Peabody v. Rice, 113 Mass. 31. 
 
 Where the question was whether a note 
 under seal had been paid or not, which 
 therefore could wholly be proved by 
 parol evidence, a verbal submission was 
 held to be good. Shockey v. Glasford, 6 
 Dana (Ky.), 9. 
 
 An award regarding a claim for dower, 
 rendered under a verbal submission, has 
 been upheld. Green v. Ford, 17 Ark. 
 586. 
 
 Where an award has been rendered 
 upon a submission which was in form not 
 in accordance with the requirements of 
 the subject-matter, an actual execution 
 and fulfilment of the award, or acquies- 
 cence in the result, will make the^award 
 valid and binding. Sawyer v. Fellows, 
 6 N. H. 107; s. c, 25 Am Dec. 452; 
 Gray v. Berry, 9 N. H. 473; Orr v. Had- 
 ley, 36 N,. H. 575; Eaton v. Rice, 8 N. 
 H. 378; Furber v. Chamberlain, 29 N. 
 H. 405; Gove V. Richardson, 4 Greenl. 
 (Me.) 327; Byam v. Robbins, 6 Allen 
 (Mass.) 63. 
 
 And even if the award for the same 
 reason should be void as between the 
 parties it may yet be received as evidence 
 at a trial of the same question before a 
 jury. Byam v. Robbins, 6 Allen (Mass.), 
 63; Whitney v. Holmes, 15 Mass. 152; 
 Tolman v. Sparhawk, 5 Mete. (Mass.) 
 476. 
 
 1. Bradv v. Mayor of Brooklyn, i 
 Barb. (N.'Y.) 584; Wilson -j. Getty, 57 
 Pa. St. 266; McManus v. McCulloch, 6 
 Watts (Pa.), 357; Kimball v. Walker, 30 
 111. 482; Copeland v. Hall, 29 Me. 93; 
 Konghton v. Houghton, 37 Me. 72. 
 
 But it has also been held that even the 
 intention to abide by the award need not 
 be expressed in words. The law will 
 imply such intention from the Submis- 
 sion. Valentine v. Valentine, 2 Barb. 
 (N. Y.) Ch. 430; Evans v. McKinsey, 6 
 Litt. (Ky.) 262; Stewart v. Cass. 16 Vt. 
 663; s. c, 42 Am. Dec. 534; Wilson v. 
 Getty, 57 Pa. St. 266; Whitcher v. Whit- 
 cher, 49 N. H. 176. 
 
 An entry is made in two cases, one a- 
 common-law suit and the other a chan- 
 cery cause, in these words: "This day 
 by consent and agreement of parties the 
 two above causes are referred to Reed, 
 one of the commissioners of this court, 
 who is hereby directed Uo make, audit, 
 settle and state, and return to this court 
 at the next term an account between the 
 plaintiff and C. of all the matters con- 
 tained in said suits, and said commis- 
 sioner is to hear the parties and any 
 proper evidence offered, and to take the 
 evidence in writing, and to return the 
 same with his report, and the said com- 
 missioner is directed to give the parties 
 interested ten days' notice of the time 
 and place of executing this order, and 
 such report shall be entered up as the 
 judgment of this court." Held, this is a 
 submission to arbitration, not a simple 
 order of reference; and on the report of 
 said commissioner being returned to the 
 court, it should be treated as though it 
 was an award, not as an ordinary report 
 of a commissioner in chancery subject to 
 such exceptions as would lie to such a 
 report ordinarily. Duff v. Core, 27 W. 
 Va 232. 
 
 A submission by bond is a very ordi- 
 nary mode of effecting a reference, each 
 party executing a bond to the other in a 
 certain penalty subject to the condition 
 of his abiding by and performing the 
 ^award of the person named as arbitrator. 
 The penalty in the bond does not limit 
 the amount the arbitrator may award, 
 although if he exceeds that limit no 
 larger sum than the penalty can be re- 
 covered on the bond. Russell on Arb. 
 52; Marshall v. Reed, 48 N. H. 36; 
 Washburne v. Lufkin, 4 Minn. 466. 
 
 But a bond to secure the performance 
 of an award referring to but not contain- 
 ing an agreement to submit will not take 
 the place of the required written sub- 
 mission. Boots V. Canine, 94 Ind. 408. 
 
 A submission may also be made by in- 
 denture containing mutual covenants to 
 
 656 
 
^Submissions. 
 
 ARBITRA TION. 
 
 Simultaneous Submissions, 
 
 Simultaneous Submissions. — Where a verbal submission has been 
 Tnad":, or a submission to two arbitrators, a subsequent or even a 
 
 stand to the award; and it seems to be 
 no objection to' the validity of the sub- 
 Tnission that one party is bound by deed 
 ■and the other by agreement under seal as 
 on a submission by a private individual 
 •and a corporation which the former signs, 
 but to which the seal of the latter is 
 aflBxed. Russell on Arb. 53; Tomlin v. 
 Mayor of Fordwich, 6 N. & M. (S. CarJ 
 594- 
 
 A submission to arbitration must be 
 ■definite in its terms and be mutual. It 
 should be made by all the parties in the 
 -controversy; so an act of Congress re- 
 ferring a claim against the U. S. to the 
 ;secretary of war does not make the sec- 
 tary an al-bitrator nor his decision an 
 ■award. Gordon v. U. S., 7 Wall. (U. S.) 
 188; De Groot v. U. S., 5 Wall. (U. S.) 
 -41^; Weichardt v. Hook, 83 Pa. St. 434; 
 ■Chorpenning v. U. S., li Ct. of CI. 625; 
 Leonard y. Cox, 64 Mo. 32; Ingraham 
 •». Whitmore, 75 111. 24; Patterson v. 
 Triumph Ins. Co., 64 Me. 500; Jersey 
 "City, etc., R. Co. v. Jersey City, etc., R. 
 Co., 20 N. J. Eq. 61. 
 
 It should be certain as to the subject- 
 matter, and where the submission is un- 
 certain and the uncertainty is not cured 
 by a certain award, the award will be set 
 aside. Woodward v. Atwater, 3 Iowa, 61. 
 
 But a submission of "all our accounts 
 and claims in relation to Mill Rock mills, " 
 and one of "our business pertaining to a 
 trade in land," have been held to be suf- 
 ficiently definite as to the subject. Zook 
 ». Spray, 38 Iowa, 273; McKinnis v. 
 Freeman, 38 Iowa, 364. 
 
 And so was a submission of "all de- 
 mands between the said parties which 
 either of them has against the other aris- 
 ing from a controversy between, them 
 upon the claim of said H. for a balance 
 due for building a certain dwelling- 
 house for said A. in the years 1877-78, 
 ■and all claims and demands against them 
 of any nature growing out of said build- 
 ing," held to be sufficient. Heglund v. 
 Allen, 30 Minn. 38. 
 
 In case of uncertainty in a submission 
 the courts will always try to supply the 
 deficiency if this can easily and surely be 
 ■done. Rixford v. Nye, 20 Vt. 132; Price 
 V. White, 27 Miss. 275; King v. Jemison, 
 33 Ala. 499. 
 
 In general the courts are inclined to 
 give as liberal and comprehensive a con- 
 struction to a submission as circumstan- 
 ces will permit in order to make it con- 
 form to the intention of the parties. 
 Harmon v, Jennings, 22 Me. 240; Munro 
 
 V. Alaire, 2 Cai. (N. Y.) 320; Owen v. 
 Boerum, 23 Barb. (N. Y.) 187; Orcutt v. 
 Butler, 42 Me. 83; Ross v. Watt. 16 111. 
 99; Gerrish v. Ayres, 3 Scam. (111.) 245; 
 Graham v. Graham, 9 Pa. St. 254; s. c, 
 49 Am. Dec. 557; Noble v. Peebles, 13 
 S. & R. (Pa.) 319; Hopson v. Doolittle, 
 13 Conn. 236; Shockey v. Glasford, 6 
 Dana (Ky.), g; Estep v. Larsen, 21 Ind. 
 igo; Beriishire Woollen Co. v. Day, 12 
 Cush. (Mass.) 128. 
 
 Parties entered into an agreement for 
 an arbitration to be " conducted and de- 
 cided upon ihe principle of fair and hon- 
 orable dealing between man and man." 
 On the hearing the parties presented 
 written statements and were heard. One 
 of them proposed to produce witnesses, 
 but the majority of the arbitrators de- 
 clined to allow it on the ground that it 
 was prohibited by the submission. Held, 
 error. Halstead v. Seaman, 82 N. Y. 27; 
 s. c, 37 Am. Rep. 536. 
 
 Where a submission is in writing evi- 
 dence varying its terms is, however, in- 
 admissible. Efner v. Shaw, 2 Wend. 
 (N. Y.) 567; McNear v. Bailey, 18 Me. 
 251. 
 
 As where a written submission is gen- 
 eral, and embraces "every demand and 
 cause in action in law and equity" parol 
 evidence is not admissible to limit the 
 extent of the submission, and to show 
 that it was confined to matters actually 
 in dispute. Long v. Stanton, 9 Johns. 
 (N. Y.) 38. 
 
 Where the settlement of partnership 
 affairs is submitted to arbitration, .the 
 submission will also give the arbitrators 
 the right to decide what are the partnerr 
 ship effects. Masters v. Gardner, 5 
 Jones L. (N. Car.) 298. 
 
 And where a claim is submitted it will 
 involve both the amount and the legality 
 of the claim. Coicord v. Fletcher, 50 
 Me. 398. 
 
 Where pending an injunction suit for 
 the abatement of a livery-stable the par- 
 ties agreed to a submission containing 
 the following clause: "That. the award 
 of the arbitrators made in pursuance of 
 the agreement shall terminate and for- 
 ever decide all matters of controversy at 
 law or in equity in relation to said livery- 
 stable," it was held that an action upon 
 the bond in the injunction suit could not 
 be maintained, although the bond was 
 not mentioned in the submission. Jesse 
 V. Cater, 28 Ala. 475. 
 
 The court will, however, not go to the 
 extent of including matters which, al- 
 
 I C. of L. — 43 
 
 657 
 
Submissions. 
 
 ARBITRATION. 
 
 What may be Submitted.. 
 
 simultaneous submission in writing and to three arbitrators will 
 supersede the parol submission.^ 
 
 When a Submission may be made. — It is not necessary that a 
 suit should be pending to authorize parties to make a submission.* 
 
 What may be Submitted. — All matters of a civil character which 
 are in dispute, difference, or doubt between the parties, may ,be 
 submitted by them to arbitration ; but matters of an illegal nature, 
 or criminal proceedings instituted against one party at the instiga- 
 tion of the other cannot be submitted.^ 
 
 Must he a Matter of Doubt at Least. — It must.be a matter of doubt 
 at least which can be submitted. An uncertainty which can be 
 removed by measurement, calculation, or investigation is not such 
 a matter of doubt ; and therefore when parties employ engineers, 
 
 Wheeler, 17 Conn. 345; s. c, 44 Am. 
 Dec. 550; Ranney v. Edwards, 17 Conn. 
 309; Mayo V. Gardner, 4 Jones L. (N. 
 Car.) 359; Findlay v. Ray, 5 Jones L. 
 (N. Car.) 125; O'Keson v. Barclay.'z P. 
 & W. (Pa.) 531. 
 
 3. Morse on Arb. 36, J3; Harrington 
 V. Brown, 9 Allen (Mass.), 579; Partridge 
 V. Hood, 120 Mass. 403; s. c, 21 Am.. 
 Rep. 524; People v. Bishop, 5 Wend.. 
 (N. Y.) iir; Shaw v. Spooner, 9 N. H.. 
 197; s. c, 32 Am. Dec. 348; Hinds v^ 
 Chamberlain, 6 N. H. 225; Noble v^ 
 Peebles, 13 S. & R. (Pa.) 319; Maurer v. 
 Mitchell, ,9 W. & S. (Pa.) 69; Stan- 
 wood V. Mitchell, 59 Me. I2i; Shaw v. 
 Reed, 30 Me. 105; Bowen v. Buck, 28 
 Vt. 308; Cameron v. M'Farland, 2 Caro- 
 lina L. Rep. 415; Corley v. Williams, r 
 Bailey (S. Car.), 588; Vincent v. Groom, 
 I Yerg. (Tenn.) 430; Hall v. Kimmer, 28. 
 N. W. Repr. (Mich.) 96; Finley v. Funk. 
 35 Kans. 668; Davenport v. Fulkerson, 
 70 Mo. 417. 
 
 An award on an illegal contract is 
 void. So held where a claim of a pen- 
 sion agent who had charged more than 
 the statute allowed, was submitted. Hall 
 V. Kimmer, 28 N. Western Repr. (Mich.) 
 96. 
 
 The courts will, however, not open 
 matters which have been closed by a 
 general award, apparently good, on the 
 ground of an illegal item in the ac- 
 count. Morse on Arb. 53; Wohlenberg 
 V. Lageman, 6 Taunt. 250. 
 
 In criminal matters, where a party has 
 a remedy by action as well as by indict- 
 ment, nothing can deter such party from 
 referring the adjustment of the repara- 
 tion he is entitled to, to arbitration, al- 
 though a criminal prosecution may have 
 been commenced. Noble v. Peebles, ij 
 S. & R. (Pa.) 319. 
 
 And it is in the discretion of the court 
 to decide whether a personal satisfaction 
 thus obtained will authorize a stay of the 
 
 though cognate to the matter in dispute, 
 are obviously omitted; as where partner- 
 ship disputes were submitted payments 
 by one of the partners on the partner- 
 ship's account subsequent to the submis- 
 sion were excluded. Graham v. Graham, 
 9 Pa. St. 254; o. c, 49 Am. Dec. 557; 
 Scott 'u. Barnes, 7 Pa. St. 134; Solomon 
 V. Maguire, 29 Cal. 227; Adams z/. 
 Adams, 8 N. H, 82; Hopson v. Doolittle, 
 13 Conn. 236; Furber v. Chamberlain, 
 29 N. H. 405; Irvine v. Marshall, 7 Minn. 
 286; Bixby V. Whitney, 5 Greenl. (Me.) 
 192. 
 
 All documents and papers submitted to 
 the arbitration must be taken in consider- 
 ation in construing the submission. Com. 
 V. Pejepscut Props., 7 Mass. 399. 
 
 Where an uncertain or ambiguous sub- 
 mission is acted upon, and an award has 
 been rendered, the parties to the arbitra- 
 tion taking part in the proceedings and 
 not objecting, they will be bound by the 
 view the arbitrators have taken of the 
 submission, and the award rendered ac- 
 cordingly. Cheshire Bank v. Robinson, 
 2 N. H. 126; Hays v. Hays, 23 Wend. 
 (N. Y.) 363- 
 
 1. Symonds I). MayOj'io Gush. (Mass.) 
 39; Freeman 11. Beadle, 2 Root (Conn.), 
 492; Loring i. Alden, 3 Mete. (Mass.) 
 
 576- 
 
 Where an agreement for an amicable 
 action was embodied in the same paper 
 with a submission to reference and a re- 
 quest to the prothonotary to grant an 
 order accordingly, the several agree- 
 ments will be taken in their appropriate 
 order. The case will be entered and 
 then the reference made. Massey v. 
 Thomas, 6 Binn. (Pa.) 333. 
 
 2. Titus V. Scantling, 4 Blackf. (Ind.) 
 89. 
 
 Not even that there should have been 
 a controversy between the parties. A 
 difference of opinion or a simple matter 
 of doubt may be submitted. Brown v. 
 
 658 
 
Submissions, 
 
 ARBITRA TION. Matter of Doubt— Eeal Estate. 
 
 accountants, or other experts to remove the uncertainty the result 
 of their investigation is not generally regarded as an award. ^ 
 
 Matters regarding Real Estate. — All matters regarding real 
 estate may be the subject of arbitration, although formerly a 
 different view was held ; and a general submission of " all matters 
 in dispute" will include questions relating to real estate as well as 
 those relating to personalty.'-* 
 
 criminal proceedings. Partridge j/.Hood, 
 120 Mass. 403; s. c, 21 Am. Rep. 524; 
 Com. V. Dowdican, 115 Mass. 133; State 
 V. Hunter, 14 La. Ann. 71. 
 
 1. Kelly V. Crawford, 5 Wall. (U. S.) 
 785; Hale V. Handy, 26 N. H. 206; Con- 
 don V. Southside R. Co., 14 Gratt. (Va.) 
 302; Norton v. Gale, 95 111. 533; s. c , 
 35 Am. Rep. 173; McAuley v. Carter, 22 
 111. 53; Packard v. Van Schoick, 58 111. 
 79; Korf V. Lull, 70 111. 420; Thayer v. 
 Bacon, 3 Allen (Mass.), 163; s. c. . 80 Am. 
 Dec. 59; McKinney v. Page, 32 Me. 513; 
 Davis V. Townsend, 10 Barb. (N. Y.) 
 3331 Vosburgh v, Teator, 32 N. Y. 561; 
 Terry v. Chandler, 16 N. Y. 354; s. c, 
 69 Am. Dec. 707. 
 
 Some authorities, however, hold that 
 such persons are to be considered as ar- 
 bitrators, and that their decision is final 
 to the extent of their employment. Mc- 
 Avoy V. Long, 13 111. 147; Canal Trus- 
 tees V. Lynch, 5 Gilm. (111.) 521; Mason 
 V. Bridge, 14 Me. 468; s. c, 31 Am. Dec. 
 66; Robbins v. Clark, 129 Mass. 145. 
 
 An award is not binding upon a party 
 not accepting it where there is no evi- 
 dence of a previous dispute between the 
 parties concerning the matters submitted. 
 Cothran v. Knox, 13 S. Car. 496. 
 
 The same variance of legal opinion 
 has been expressed in regard to apprais- 
 als. Some authorities regard appraisers 
 as arbitrators; others hold a contrary 
 view." Curry v. Lackey, 35 Mo. 389; 
 Garred w. Macey. 10 Mo. 161; Mason v. 
 Bridge, 14 Me. 468; s. c, 31 Am. Dec. 
 66; Oakes v. Moore, 24 Me. 214; s. v.. , 
 41 Am. Dec. 379; Garr v. Gomez, 9 
 Wend. (N. Y.) 649; Rochester v. White- 
 house, 15 N. H. 468. Compare Smith v. 
 Boston, etc., R. Co., 36 N. H. 458; Ef- 
 ner v. Shaw, 2 Wend. (N. Y.) 567; Un- 
 derbill V. Van Cortland, 17 Johns. (N. 
 Y.) 405; 2 Johns. Ch. (N. Y.) 339; Leon- 
 ard V. House, 15 Ga. 473; Lauman v. 
 Young, 31 Pa. St. 306. 
 
 The appeal to the recollection of a 
 third party about past occurrences, al- 
 though the decision may be made bind- 
 ing on the appealing parties, is not an 
 arbitration. Williams v. Wood, i Dev. 
 (N. Car.) 82; Delesline v. Greenland, i 
 Bay (S. Car.), 458. 
 
 But where a matter is actually in dis- 
 pute or in doubt it may be submitted. 
 So may a claim of dower, a claim to 
 owelty of partition, a single item of a 
 long account, questions of pure law, form 
 the subject-matter of arbitration. Morse 
 on Arb. 54; Cox v. Jagger, 2 Cow. (N. 
 Y.)638; s. c, i4Am. Dec. 522; McBride 
 V. Hogan, i Wend. (N. Y.) 326; Green 
 V. Ford, 17 Ark. 586; Strawbridge v. 
 Funstone, i W. & S. (Pa.) 517. 
 
 The question whether or not a certain 
 place was kept as a nuisance, and whether 
 or not it should be abated as such, may 
 properly be submitted to arbitration. 
 Richards v. Holt, 61 Iowa, 529. 
 
 Debts which are termed certain, such 
 as debts on bonds, arrears of rent under 
 a lease, have long been held net to be sub- 
 ject to arbitration, though they may be 
 joined with other matters which are un- 
 certain. This principle has. however, 
 since long been considered of no value. 
 Russell on Arb. 4; Godfrey v. Godfrey, 
 2 Mod. 303. 
 
 In general, things which by themselves . 
 cannot be submitted may be submitted in 
 connection with other matters. Coxal v. 
 Sharp, I Keb. 937; Morris v. Creech, i 
 Lev. 292. 
 
 It is doubted whether actions upon 
 penal statutes by common informers 
 may be determined by arbitration. 
 Morse on Arb. 54. 
 
 Debts depending on a specialty, as an 
 administration bond, a scire facias on a 
 judgment upon an award, or a debt on a 
 recognizance of bail in error, are held not 
 to be the subject matter of arbitration. 
 Stout V. Com., 2 Rawle (Pa.), 341; Hill 
 V. Crawford, 8 S. & R. (Pa.) 477; Stev- 
 enson V. Docherty, 3 Watts (Pa.), 176. 
 
 But in an action for the penalty of a 
 contract undersea!, the amount equitably 
 due may be determined by a referee. 
 Phoenix Mut. Life Ins. Co. v. Clark, 59 
 N. H. 561. 
 
 2. Penniman v. Rodman, 13 Mete. 
 (Mass.) 382; Jones v. Boston Mill Corp. 
 4 Pick. (Mass.) 507; s. c, 16 Am. Dec. 
 358; Clark V. Burt, 4 Cush, (Mass.) 396; 
 McMuUen v. Mayo, 8 Sm. & M. (Miss.) 
 298; People V. McGinnis, i Park Cr. 
 Cas. (N. Y.) 387, Munroe v. Alaire, 2 
 
 659 
 
Sabmissions. 
 
 ARBITRATION. 
 
 General Submissions. 
 
 General Submissions. — A submission is general when it submits 
 to arbitration all actions and causes of actions, all quarrels, con- 
 troversies, trespasses, damages and demands whatsoever. It is 
 immaterial what terms are used to make the submission general, 
 as, "divers others matters," "all controversies," "all matters, 
 claims, and demands at law or equity," " all other actions or causes 
 of actions," as long as the intention of the parties is evident to 
 submit all matters of dispute or controversy. Under such a gen- 
 eral submission the arbitrators have a right to decide upon all 
 questions concerning the civil rights of the parties between them, 
 whether legal or equitable, relating to personal or real property ; 
 and the courts will construe the submission as liberally as 
 possible, so as to terminate all controversies, and to dispose of 
 all rights of action. ^ 
 
 Cai. (N. Y.) 320; Cox v. Jagger, 2 Cow. 
 (N. y.) 638; s. c, 14 Am. Dec. 522; 
 Byers v. Van Deusen, 5 Wend. (N. Y.) 
 268; Sellick V. Addams, 15 Johns. (N. Y.) 
 197; Blair v. Wallace, 21 Cal. 317; Akely 
 V. Akely, 16 Vt. 450; McNear v. Bailey, 
 18 Me. 251; McCracken v.' Clarke, 31 
 Pa. St. 498; Davis v. Havard, 15 S. & 
 R. (I*a.) 162; s. c, 14 Am. Dec. 536; 
 Austin V, Snow, 2 Dall. (Pa.) 157; Chi- 
 cago, etc., Co. V. Stewart, ig Fed Rep. 
 5; Shackelford v. Purket, 2 A. K. Marsh. 
 (Ky.) 435; s. c, 12 Am. i)ec. 422; Finley 
 ». Funk, 12 Pac. Rep. (Kans.) 15. 
 
 So may questions about a boundary- 
 line be submitted. Stout v. Woodward, 
 " 71 N. Y. 590; Ryder v. Dodge, 14 Week. 
 Dig. (N. Y.) 84; Sellick v. Addams, 15 
 Johns. (N. Y.) 197; Robertson v. Mc- 
 Neill, 12 Wend. (N. Y.) 578; Davis v. 
 Havard, 15 S. & R. (Pa.) 162; s. c, 16 
 Am. Dec. 537. 
 
 Or the question of damages for a right 
 of flowage. Fitch v. Constantine Hy- 
 draulic Co., 44 Mich. 74. 
 
 Even in New York, where the statute 
 makes an award regarding all matters 
 of real estate absolutely void, the courts 
 are very liberal in its construction, and 
 hold that it refers only to cases where a 
 claim to a legal title is involved, but does 
 not operate where an equitable title is 
 claimed. Wiles v. Peck, 26 N. Y. 42; 
 Olcott V. Wood, 14 N. Y. 32. See Quinn 
 w. Besse, 64 Me. 366. 
 
 Future rights of parties in regard to 
 property which cannot yet be reached by 
 the courts may be decided by arbitration. 
 Thus an arbitrator has been called upon 
 to set out what road one of the contend- 
 ing parties should have over certain 
 lands; to determine with respect to such 
 things as a pump, a yard, a doorway, a 
 hedge, a ditch, a flue, a watercourse or a 
 water-spout; how they shall in future be 
 
 enjoyed and used; and even to say gene- 
 rally what shall be done by the parties 
 respecting the matters in dispute. Par- 
 ties may even refer to arbitration any 
 future differences between them, though 
 none at present exist. Russell on Arb. 
 5; Morse on Arb. 54. 
 
 1. Sellick V. Addams, 15 Johns. (N. 
 Y.) 197; Munroe v. Alaire, 2 Cai. (N. 
 Y.) 320; De Long v. Stanton, 9 Johns. 
 (N. Y.) 38; Byers v. Van Deusen, 5 
 Wend. (N. Y.) 268; Jones v. Welwood, 
 71 N. Y. 208; Adams -u. Macfarlane, 65 
 Me. 143; Brown v. Leavitt, 26 Me. 251; 
 Orcutt V. Buttler, 42 Me. 83; Connor v., 
 Simpson, 104 Pa. St. 440; Merritt v. 
 Merritt, 11 111. 565; Indiana Centr. R. 
 Co. V. Bradley, 7 111. 49; Overby v. 
 Thrasher, 47 Ga. 10; Barker v. Belknap, 
 39 Vt. 168; Woods V. Page, 37 Vt. 252; 
 Guerrant v. Smith, 48 Miss. 90; Rich- 
 ards V. Holt, 5i Iowa, 529; Jackson v. 
 Hoffman, 31 La. Ann. 97. 
 
 Under a general submission, — by 
 which was understood a submission con- 
 taining no express reservation or limita- 
 tion upon the authority conferred.^both 
 law and fact are submitted to the judg- 
 ment of the arbitrators for consideration 
 and decision. Johnson v. Noble, 13 N. 
 H. 286; s. c, 38 Am. Dec. 485. 
 
 A submission stipulating to abide by 
 any award made by their mutual friends 
 M. and C. in the arbitration of an un- 
 settled account between theni was held 
 to cover all matters of dispute between 
 the parties growing out of the account. 
 Henniken v. Brown, 4 Baxt. (Tenn.) 397. 
 
 And where two partners submitted to 
 arbitration all the differences between 
 them in respect to their partnership af- 
 fairs in general terms, the arbitrators 
 were authorized to adjust every question 
 of dispute arisincf out of the partnership 
 transactions. They were not limited to 
 
 660 
 
SubmiBsions. 
 
 ARBTTRA TION. 
 
 What Hatters Excluded. 
 
 What Matters Excluded. — Only such matters, however, are 
 rightly included as concern the parties directly and which are in 
 dispute at the time of the submission. Matters formerly disposed 
 of, or matters not in dispute, are excluded. ^ 
 
 Conditional Submissions. — Submissions with a condition attached 
 are valid, and do not take effect before the condition is fulfilled.* 
 
 Submission of Cases pendente lite. — A case pending in court may 
 be submitted to arbitration, either by rule of court under statu- 
 tory regulations, or by voluntary agreement of the parties. If 
 done under rule of court it is of course only a continuance of the 
 regular court proceedings under another form ; but if done by 
 voluntary agreement and without regard to the statutory provi- 
 sions, the submission will act as a discontinuance of the case in 
 court, according to the great majority of authorities.^ 
 
 the books of the partnership's accounts. 
 Tucker v. Page, 69 111. 179. 
 
 A submission of " all causes of action" 
 has been held to include a charge of 
 fraud in a sale of property. De Long v. 
 Stanton, 9 Johns. (N. Y.) 38. 
 
 /And of ''all business, whatever kind, in 
 dispute between the parties," a prosecu- 
 tion for assault and battery. Noble v. 
 Peebles, 13 S. & R. (Pa.) 319. 
 
 And a submission of "all demands," 
 prospective damages on an indemnity 
 bond then outstanding. Cheshire Bank 
 V. Robinson, 2 N. H. 126. 
 
 Where a dispute in reference to the 
 ownership of a tent was submitted to 
 arbitration under authority to " adjudi- 
 cate and settle all matters existing be- 
 tween the parties," it was held that au- 
 thority to assign one person's personal 
 claim to another was included. Ford v. 
 Burleigh, 60 N. H. 278. 
 
 Where in an action on contract to re- 
 cover a judgment for a sum of money 
 agreed to be paid to the plaintiff annu- 
 ally, and for a support during his life, 
 the defendant pleads an award of arbi- 
 trators, and the submission provides that 
 all matters of difference were submitted 
 between them, it cannot be objected that 
 an award made by them that the defend- 
 ant should pay to the plaintiff the sum 
 of $200 in five years, in equal payments, 
 without interest, is not in accord with 
 the submission, and that the time of pay- 
 ment fixed by the arbitrators is not with- 
 in the terms of the power conferred on 
 them. Donican v. Mulry, 29 N. West- 
 ern Repr. (Iowa) 612; Woodward v. At- 
 water, 3 Iowa. 61; Zook w. Spray, 38 
 Iowa, 273; McKinnis v. Freeman, 38 
 Iowa, 365. 
 
 .1. Adams v. Adams, 8 N. H. 82; Gra- 
 ham I/. Graham, 9 Pa. St. 254; s. c, 49 
 Am. Dec. 557; Thrasher w. Haynes, 2 N. 
 H. 429; Samson v. Young, 50 N. H. 62; 
 
 Calvert v. Carter, 18 Md. 73; 4 Md. Ch. 
 199; Robinson v. Morse, 29 Vt. 404. 
 
 A submission of "all unsettled ac- 
 counts" does not include a. division of 
 personal property owned in common by 
 the parties. Shearer v. Handy, 22 Pick. 
 (Mass.) 417. 
 
 So under a general submission of part- 
 nership matters, an individual debt from 
 the one partner to the other was held not 
 to be included in the submission. Os- 
 borne V. Colvert, 86 N. Car. 170. 
 
 Nor could the question be submitted 
 whether the partnership was void on ac- 
 count of false representations. Richards 
 V. Todd, 127 Mass. 167. 
 
 But if two parties on one side and one 
 on another submit to arbitration all their 
 claims and differences, not only the joint 
 matters of the two, but also their indi- 
 vidual matters, are submitted, and an 
 award on an individual matter will form 
 a bar to any further action. Fidler v. 
 Cooper. 19 Wend. (N. Y.) 285; Cutter v. 
 Whittemore, lo !^ass. 442. 
 
 Claims barred by the statute of limita- 
 tions are excluded from a. general sub- 
 mission. They require a special submis- 
 sion. Adams v. Adams, 8 N. H. 82. 
 
 Submission of a claim barred by the 
 statute of limitations was formerly held 
 to remove the statute bar, but in later 
 cases a different view has been held. 
 Colkings V. Thackston, Cam. & N. (N. 
 Car.) 93; Barney v. Smith, 4 H. & J. 
 (Md.) 485; s. c, 7 Am. Dec. 679. But 
 see Shaw v. Newell, i R. I. 488; Russell 
 V. Gas, Mart. & Y. (Tenn.) 353; Cowart 
 w. Perrine, 21 N. J. Eq. loi. 
 ^ In case of doubt the presumption is of 
 an intent that all matters should be de- 
 cided. Jones V. WelvTOod, 71 N. Y. 208. 
 
 2. Boston V. Brazer, 11 Mass. 447: Peo- 
 ple V. McGinnis, i Park. Cr. Cas. (N. Y.) 
 387; Merritt v. Thompson, 27 N. Y. 225. 
 
 3, SafSe v. Cox, 9 Humph. (Tenn.) 142; 
 
 661 
 
Bubmissions. 
 
 ARBITRA TION. 
 
 Cases Suspended. 
 
 Cases Suspended. — In cases where the submission does not work 
 as a discontinuance of the suit the power of the court over the 
 case is entirely suspended from the time the arbitrators are chosen 
 until the rendering of the award, or until the expiration of the 
 time fixed for rendering the award. ^ 
 
 McMinnville, etc., R. Co. v. Huggins, 
 59 Tenn. 177; Susong v. Jack, i Heisk. 
 (Tenn.) 415; Jewell v. Blankenship, 10 
 Yerg. (Tenn.)43g; Larkin v. Robbins, 2 
 Wend. (N. Y.) 505; Wells v. Lain, 15 
 Wend. (N. Y.) 99; Smith v. Barse, 2 Hill 
 (N. Y.), 387; West V. Stanley, i Hill (N. 
 Y.), 69; Towns V. Wilcox, 12 Wend. (N. 
 Y.) 503; Jordan v. Hyatt, 3 Barb. (N. Y.) 
 275; Buel V. Dewey, 22 How. Pr. (N. Y.) 
 342; Green z/. Patchen, 13 Wend. (N. Y.) 
 393; Ex p. Wright, 6 Cow. (N. Y.) 399; 
 Camp V. Root, 18 Johns. (N. Y.) 22; 
 Miller V. Van Auken, i Wend. (N. Y.) 
 516; Wilson V. Williams, 66 Bart). (N. 
 Y.) 209; Jacoby v. Johnston. 3 Thomp. & 
 C. (N. Y.) 747; Mooers v. Allen, 35 Me. 
 276; s. c, 58 Am. Dec. 700; Crooker v. 
 Buck, 41 Me. 355; Gunter v. Sanchez, i 
 Cal. 45; Bigelow y. Goss, 5 Wis. 421; 
 Muckey v. Pierce, 3 Wis. 307; Vander- 
 hoof V. Dean, i Mich. 463; Bowen v. 
 Lazalere, 44 Mo. 383; Cunningham v. 
 Craig, 53 111. 252; Reeve v. Mitchell, 15 
 111. 297. 
 
 There are, however, decisions which 
 hold that a common-law submission has 
 no effect upon the proceedings in court, 
 and that either party has a right to push 
 his suit, leaving the other party to have 
 recourse only to. an action for breach of 
 the agreement. Haskell v. Whitney, 12 
 Mass. 47; Eaton u. Arnold, 9 Mass. 519; 
 McGunn v. Hanlen. 29 Mich. 476; Pau- 
 lison V. Halsey, 38 N. J. L. 488; Corbin 
 V. Adams, 76 Va. 58; Leonard v. House, 
 15 Ga. 473; Parnell v. King,- Rice (S. 
 Car.), 376; Nettleton v. Gridley, 21 Conn. 
 531; s. c, 56 Am. Dec. 378; Fielding v. 
 Westermeier, 29 La. Ann. 51; U. S. v. 
 Ames, I Woodb. & M. (U. S.) 76; Hag- 
 gart V. Morgan, 5 N. Y. 422; s. c, 55 
 Am. Dec. 350; Laryz/. Goodnow, 48 N.H. 
 170; Dinsmore v. Hanson, 48 N. H. 413. 
 Compare Summy i'.Hiestant,65 Pa. St. 300. 
 
 And the discontinuance may be waived, 
 as where both parties appear and con- 
 tinue the proceedings in court. People 
 V. Onondaga, i Wend. (N. Y.) 314; Buel 
 V. Dewey, 22 How. (N. Y.) Pr. 342; Jew- 
 ell V. Blankenship, 10 Yerg. (Tenn.) 439. 
 
 Although a submission to arbitration 
 may form a bar to further action in court, 
 this refers only to matters which of neces- 
 sity are included in the submission. 
 Where a party has the choice to enforce 
 his qlaim either against the other party to 
 
 the arbitration or against one not a party 
 to it, the submission does not operate to 
 bar him from his remedy against the 
 latter. Robinson v. Hawkins, 38 Vt. 693. 
 
 1. Ensign v. St. Louis, etc., R. Co., 
 62 How. Pr. (N. Y.) 123; Hazen v. Ad- 
 dis, 2 Green (N. J.), 333; Maxfield v. 
 Scott, 17 Vt. 634; Grubb v. McC'uUough, 
 I Yeates (Pa.), 193; Thompson v. White, 
 4 S. & R. (Pa.) 135; Wilcox v. Payne, 88 
 Pa. St. 154; Hoffman v. Locke, 19 Pa. 
 St. 57; Schuylkill Bank v. Macalester, 6 
 W. & S. (Pa.) 147; Camp v. Bank of 
 Owego, ID Watts (Pa.), 130; Douglas v. 
 Kenton, i Miles (Pa.), 21; De Lisle v. 
 Priestman, i Browne (Pa.), 115; McCall 
 V. Crousillat, 6 S. & R. (Pa.) 167: Brown 
 V. Shaeffer, 6 Binn. (Pa.) 177; Crawford 
 V. Gable, 2 Barr. (Pa.) 444; Withers v. 
 Haines, 2 Barr. (Pa.) 435; Grubb v. 
 Grubb 's Ex'r's, 2 Dall. (Pk.) 191; Pollock 
 V. Hall, 4 Dall. (Pa.) 222; Horn v. 
 Roberts, i Ashm. (Pa.) 45; Jacoby v. 
 Johnston, 3 Th. & C. (N. Y.) 747. 
 
 Where to a submission under the com- 
 mon-law rule a' condition is attached 
 stipulating that judgment shall be entered 
 upon the award, the case is not discon- 
 tinued, but only suspended. Such judg- 
 ment may be entered, and stands as a 
 judgment by consent. The parties are 
 concluded by their agreement, and cannot 
 be heard to allege that the reference and 
 judgment were not warranted by law. 
 Ex p. Wright, 6 Cow. (N. Y.) 399; Green 
 V. Patchen, 13 Wend. (N. Y.) 293; Yates 
 V. Russell, 17 Johns. (N. Y.) 461; Wil- 
 son V. Williams, 66 Barb. (N. Y.) 209; 
 Callinan v. Port Huron, etc., R. Co., 27 
 N. Western Repr. (Mich.) 718; Tison v. 
 Sellars, 40 Ga. 710; McMinnville, etc., 
 R. Co. V. Huggins, 59 Tenn. 177; Roger 
 V. Nail, 6 Humph. (Tenn.) 29; Hearne 
 ■u. Brown, 67 Me. 156; Carroll v. Locke, 
 58 N. H. 163; Lary v. Goodnow, 48 N 
 H. 170; Dinsmore v. Hanson, 48 N. H. 
 413; Wear v. Ragan, 30 Miss. 83; Bank 
 of Monroe v. Widner, 11 Paige (N. Y.), 
 529; s. c, 43 Am. Dec. 768. 
 
 A case submitted to arbitration /^Krf«z/i? 
 lite will in no case be considered to be 
 discontinued where the terms of the sub- 
 mission show the intention of the parties 
 not to discontinue. Jacoby v. Johnston, 
 I Hun (N. Y.), 242; Hearne li. Brown, 
 67 Me. 156; Ensign v. St. Louis, etc., R. 
 Co., 62 How. Pr. (N. Y.) 123. 
 
 662 
 
Sabmissions, 
 
 ARBITRATION. 
 
 What is Submitted. 
 
 What is Submitted. — When a case pending in court is submitted 
 to arbitration the submission includes all the questions of law and 
 fact connected with it ; all amendments which have been made or 
 could be allowed are included so as to make the question before 
 the arbitrators as near as possible like the subject-matter of the 
 suit without regard to form.^ 
 
 Release of Errors. — A submission of a pending cause operates 
 as a release of all errors, or an estoppel against any assignment of 
 
 When, after submission, arbitration 
 "becomes impossible, either by the refusal 
 ol the arbitrators to act, or to give up the 
 award unless the payment be made, which 
 payment was not made, the suit in court 
 is not discontinued, but suspended, ac- 
 cording to some authorities. Chapman 
 ■V. Seccomb, 36 Me. 102; Elliot v. Quim- 
 by, 13 N. H. 181. 
 
 Others hold that under such circum- 
 ■stances the suit was discontinued, and 
 that the plaintiff had to return to his 
 original cause of action and to commence 
 anew. Buel v. Dewey, 22 How. Pr. 
 (N. Y.) 342- 
 
 So was the mere submission of a cause 
 to arbitration , the arbitrators never taking 
 nor consenting to tdke upon themselves 
 the burden of the submission, held to 
 Operate as a discontinuance of the suit. 
 McNulty V. Solley, 95 N. Y. 242; 66 
 How. Pr. (N. Y.) 147; Reeve v. Mitchell, 
 15 111. 297. 
 
 A case decided in court was by appeal 
 taken into a higher court, and during the 
 appeal submitted to arbitration, the 
 submission stipulating for the "discon- 
 tinuance of the appeal." After the dis- 
 agreement of the arbitrators it was held 
 that although the appeal was discontinued 
 the judgment of the lower court remained 
 in force. Miller v. Van Auken, i Wend. 
 (N. Y.) 516. 
 
 But where under like circumstances 
 the submission contains the clause "all 
 further proceedings in said suit at law are 
 to be hereby stayed and ended," it was 
 held that according to the intention of 
 the parties the suit at law was blotted 
 out and ended, from its commencement 
 to its termination. Van Slyke v. Lettice, 
 ■6 Hill (N. Y.), 610; Grosvenor v. Hunt, 
 II Kow. Pr. (N, Y.) 355. And see Bald- 
 win V. Barrett, 6 Thomp. & C. (N.Y.) 362. 
 
 A submission of an action to arbitra- 
 tors after an appeal does not necessarily 
 deprive the plaintiff of his right to enter 
 his complaint for affirmance, unless there 
 is an award made before the sitting of 
 the appellate court, or by the terms of 
 ■submission time beyond such sitting is 
 allowed for making the award. Hayes 
 ■V. Blanchard, 4 Vt. 210. 
 
 According to the same principles, an 
 action brought while an arbitration is 
 pending covering the same subject-mat- 
 ter will be suspended until award has 
 been rendered, the time for the rendering 
 of an award has expired, or the arbitrators 
 disagree or refuse to act. Small v. 
 Thurlow, 37 Me. 504; Brown v. Welcker, 
 I Coldw. (Tenn.) 197; St. Martin v. 
 Mestayfe, 18 La. Ann. 320. But compare 
 Knaus v. Jenkins, 40 N. J. L. 288; Smith 
 V. Compton, 20 Barb. (N. Y.) 262. 
 
 A mere agreement to submit without 
 an actual submission is, however, no bar 
 to the action. Tobey v. County of 
 Bristol. 3 Story (U. S.), 800. 
 
 1. Gushing v. Babcock, 38 Me. 452; 
 Waterman v. Connecticut, etc.. R. Co., 
 30 Vt. 610; s. c, 73 Am. Dec. 326; 
 Briggs V. Oaks, 26 Vt. 138; Davis v. 
 Campbell, 23 Vt. 236; Eddy v. Sprague, 
 10 Vt. 216; Maxfield v. Scott, 17 Vt. 634; 
 Price V. Brown, 98 N. Y. 388; Lee v. 
 Tillotson, 24 Wend. (N. Y.) 337; s. c, 
 35 Am. Dec. 624; Renouil v. Harris, 2 
 Sandf. (N. Y.) 641; Newton v. West, 3 
 Mete. (Ky.) 241; Coffin v. Cottle, 4 Pick. 
 (Mass.) 454; Page v. Monks, 5 Gray 
 (Mass.), 492; Amet v. Boyer, 36 La. 
 Ann. 266. 
 
 No new matter foreign to the case 
 under submission may be added except 
 when expressly included in the submis- 
 sion; but extra provisions may so be 
 included if they are not in violation of 
 the law. So where the rule of court 
 requires an award of the majority of the 
 arbitrators the submission may require a 
 unanimous award. Merrill v. Gold, i 
 Cush. (Mass.) 457; Berkshire Woollen Co. 
 V. Day, 12 Cush. (Mass.) 128; Anderson 
 V. Farnham, 34 Me. 161; Harman v. 
 Jennings, 22 Me. 240; Henderson v. 
 Walker, 2 Grant (Pa.), 36; Bemus v. 
 Quiggle, 7 Watts (Pa.), 363; Smith v. 
 Kincaid, 7 Humph. (Tenn.) 28; Fitz- 
 gerald v. Fitzgerald, Harden (Ky.), 227; 
 Harrison v. Wortham. 8 Leigh. (Va.) 296. 
 
 A general submission made pendente 
 lite includes all matters in dispute at the 
 time of the submission, not at the time 
 of the initiation of the suit. Woods v. 
 Page, 37 Vt. 252. 
 
 663 
 
Beyocation of Submission, 
 
 ARBITRATION. 
 
 In Generals 
 
 errors, in the proceedings anterior to the submission,' and as a 
 waiver of all exceptions to the forms of the process. 
 
 6. Revocation of Submission. — In C^w^ria:/.— Independent of some 
 statutory restriction, an agreement to submit to arbitration is ia 
 general revocable by either party, at any time before an award 
 has been made. No stipulation in the agreement will be sus- 
 tained either at law or in equity as defeating this right, so as ta 
 prevent the parties from having recourse to the courts.* 
 
 1. Ames V. Stephens, 120 Mass. 218; 17 N. Y. 491; Brown v. Leavitt, 26 Me. 
 
 Forseth v. Shaw, 10 Mass. 253; CofEn v. 251. 
 
 Cottle, 4 Pick. (Mass.) 454; Vanderhoof Even when the submission contains the- 
 
 V. Dean, i Mich. 463; Hix v. Sumner, 50 stipulation that in case one of the parties 
 
 Me. 290; Swift V. Harriman, 30 Vt. 607; fails to appear the proceedings may go 
 
 Maxfield V. Scott, 17 Vt. 634; Spaulding on ex parte, the submission is not irrevo- 
 
 ■V. Warren, 25 Vt. 316; Ligon v. Ford, 5 cable. Boston, etc., R. Co. v. Nashua, 
 
 Munf, (Va.) 10; Taylor v. Sayre, 24 N. 
 J. L. 647; Applegate v. Schureman, 3 N. 
 J. L. 868; McCahan v. Reamey, 33 Pa. 
 
 St. 535. 
 
 2. Davis V. Maxwell, 27 Ga. 368; 
 Leonard v. House, 15 Ga. 473; Tobey v. 
 County of Bristol, 3 Story (U. S.), 800; 
 Snodgrass v. Gavit, 28 Pa. St. 221 ; John- 
 son V. Andress, 5 Phil. (Pa) 8; Paist z-. 
 Caldwell, 75 Pa. St. 161; Marseilles v. 
 Kenton, 17 Pa. St. 238; Erie v. Tracy, 2 
 Grant's Cas. (Pa.) 20; Power v. Power, 
 7 Watts (Pa.), 205; Wood v. Finn, i Pa. 
 L. J. R. 396. Marsh v. Packer, 20 Vt. 
 198; Aspinwall v. Tousey, 2 Tyler (Vt,), 
 328; Rawley v. Young, 3 Day (Conn.), 
 118; Bray iy. English, I Conn. 498; Allen 
 
 etc., R. Co., 139 Mass. 463. 
 
 A submission to arbitration is revoca- 
 ble before award, even if entered into 
 upon a consideration. Jones v. Harris, 
 59 Miss. 214. 
 
 But the contrary view has been held 
 where, by agreement of parties, proceed- 
 ings in chancery for an account were dis- 
 continued, and in consideration thereof a 
 submission to a finSl reference was made. 
 McGheehen v. DufEeld, 5 Pa. St. 497; 
 Bank of Monroe u. Widner, 11 Paige- 
 (N. Y.) 529; s. c, 43 Am. Dec. 768;. 
 Paist V. Caldwell, 75 Pa. St. 161. 
 
 Where the parties to an action have 
 entered into a rule of court in the com- 
 mon form, submitting the action and all 
 
 V. Watson, 16 Johns. (N. Y.) 205; Bank demands to arbitrators to be mutually 
 
 of Monroe v. Widner, 11 Paige (N. Y.), chosen, neither party can rescind the 
 
 529; s. c, 43 Am. Dec. 768; Tyson v. rule. Haskell v. Whitney, 12 Mass. 47;, 
 
 Robinson, 3 Ired. (N. Car.) 333; Peters Cumberland v. North Yarmouth, 4 Me. 
 
 V Craig, 6 Dana (Ky.), 307. Compare 459; Ferris v. Munn, 22 N. J. L. 71; 
 
 Williams V. Danziger, gi Pa. St. 232; Freeborn w. Denman, 3 Halst. (N. J.) 116;; 
 
 Lewis's Appeal, 91 Pa. St. 359; Horn v. Roberts, i Ashm. (Pa) 45; Rus- 
 
 Where a submission containexl the stip- ton v. Dunwoody, i Binn. (Pa.) 42; Pol- 
 
 ulation that the award should be ren- lock zi. Hall, 4 Dall. (U. S.)222; Suttons. 
 
 dered on a certain day, and the arbitrator v. Tyrrell, 10 Vt. 94; Dexter v. Young, 
 
 made an award before that day, it was 40 N. H. 130; Frets v. Frets. I Cow. 
 
 held that the revocation of one of the (N. Y.) 335; Bray w. English,! Conn. 498;; 
 
 parties after the award was made, but Tyson v. Robinson, 3 Ired. L. (N. Car.), 
 
 before it was published to both parties, 333; Phillips v. Shiplev, i Bland (Md.), 
 
 came too late. Hunt v. Wilson, 6 N. H. 
 36. 
 
 A submission entered into by the at- 
 torneys of the parties can be revoked by ' 
 either one of the parties. Coleman v. 
 Grubb. 23 Pa. St. 393. 
 
 516: Masterson v. Kidwell. 2 Cranch 
 (C. Ct.), 669; Brickhouse v. Hunter, 4 H. 
 & M. (Va.) 263; s. t., 4 Am. Dec. 528. 
 
 Where the parties to a suit in equity, 
 after issue joined, and pending a refer- 
 ence to an examiner, file an agreement 
 
 Although it has been doubted, the gen- to submit the controversy to the final de- 
 
 eral rule is held to be, that where the cision of arbitrators, and in consequence 
 
 submission is by one on one side and two of such agreement the court, at the re- 
 
 on the other, one of the two cannot re- quest of the parties, vacates the appoint- 
 
 voke without the concurrence of the ment of the examiner, the agreement of 
 
 other. The authority being jointly given reference is virtually made a rule of court, 
 
 must be jointly taken away. Kyd on and becomes irrevocable. White's Ap- 
 
 Awards, 30; Robertson v. M'Niel. 12 peal, 108 Pa. St. 473. 
 Wend. (N. Y.) 578; Greason v. Keteltas, But a submission "to be made a ruleL- 
 
 664 
 
Bevocation of Submission. 
 
 ARBITRATION. 
 
 Form of Bevocation. 
 
 Form of Revocation. — No special form for a revocation of a sub- 
 mission is necessary to make it valid, as long as the intention of 
 the parties can be ascertained. The courts will give a liberal con- 
 struction to the whole instrument to discover what the intention 
 is, often supplying, transposing, or rejecting words.^ 
 
 Implied Revocation. — Although there is no direct revocation of 
 the submission by the parties interested, there may be a revoca* 
 tion by implication either through circumstances or through an 
 act of one of the parties.* 
 
 A revocation can be made through aa 
 agent, but he must be especially author^ 
 ized for it. So where the president and. 
 secretary of an insurance company are 
 authorized to carry on the business of the 
 company without the presence of the 
 board of directors, this does not author- 
 ize them to revoke a submission entered 
 into by the board of directors. Madison 
 Ins. Co. V. Griffin. 3 Ind. 277. 
 
 Notice must be given to the arbitrators 
 of a revocation of a submission, for un- 
 less notice had been given to the arbi- 
 trators the instrument would not have 
 amounted to a revocation. Allen v. Wat- 
 son, 16 Johns. (N. Y.) 205; Brown u. 
 Leavitt, 26 Me. 251. 
 
 A revocation of a submission is con- 
 sidered to be waived when the revoking 
 party appears before the arbitrators and 
 enters into the trial. Seely v. Pelton, 63 
 111. lOI. 
 
 A stranger to a submission under the 
 rule of court may petition the court to 
 revoke the submission on the ground of 
 collusion and fraud between the parties, 
 and the probabilities that the interests of 
 other parties will suffer by the fraud. It 
 will be the duty of the court under such 
 circumstances, fraud or collusion being 
 proved, to grant the petition and to re- 
 voke the submission. Lathrop v. Hitch- 
 cock, 38 Vt. 496. 
 
 2. So may a revocation be presumed 
 from the fact that suit was brought after 
 the submission, and before any binding 
 award was rendered. Peters v. Craig, 6 
 Dana (Ky.), 307; Kimball v. Oilman, 60 
 N. H. 54. 
 
 But where a suit was entered with the 
 only purpose of keeping the action in ex- 
 istence, should the other party revoke or 
 refuse to attend, this was held not to be 
 a revocation. Sutton v. Tyrrell, 10 Vt. 
 91. 
 
 A sold real estate to B without dis- 
 closing the fact that he and his neighbor 
 had submitted a dispute about the boun- 
 dary-line to arbitration. Held, that B 
 was not bound by a subsequent award. 
 Emery v. Fowler. 38 Me. 99. 
 
 The marriage of a feme sole, party to a 
 
 of court " is revocable until it has been 
 made a rule of court, or until award has 
 been rendered. Huston v. Clark, 12 
 Phila. (Pa.).383. 
 
 Submissions made under statutory pro- 
 visions must of course follow the statu- 
 tory rules, and whether they are revoca- 
 ble or not, and at what state of the pro- 
 ceedings, depends on the statutes. 
 Montgomery Co. v. Carey, i Ohio St. 
 463; Bloomer z/. Sherman, 5 Paige (N Y.), 
 575; Heath v. Pres. of Gold Exchange, 
 38 How. Pr. (N. Y.) 168; Shroyer I/. Bash, 
 57 Ind. 349. 
 
 1. So where a sealed revocation read 
 as follows: "We, the subscribers, re- 
 voke. Take notice that the arbitration 
 bonds," etc., the court transposed the 
 words " Take notice that," so as to make 
 it read, ''Take notice that we, the sub- 
 scribers, revoke the arbitration bonds," 
 and upheld the revocation. Frets v. 
 Frets, I Cow. (N. Y.) 335. 
 
 A revocation must conform to the sub- 
 mission. A written submission i-equires 
 a written revocation; a submission under 
 seal can only be revoked under seal. 
 Shrnyer v. Bash. 57 In^. 349; Keyes v. 
 Fulton, 42 Vt. 159; Sutton v. Tyrrell, 10 
 Vt. 91; Brown v. Leavitt. 26 Me. 251; 
 Evans v. Cheek, 3 Hayw. (Tenn.) 42; 
 Wallis 'd. Carpenter, 13 Allen (Mass.), 19; 
 McFarlane v. Cushman, 21 Wis. 401; 
 Mullins V. Arnold, 4 Sneed (Tenn.), 262; 
 Relyea v. Ramsay, 2 Wend. (N. Y.) 602; 
 Howard J/. Cooper, i Hill (N. Y.), 44; Van 
 Antwerp v. Stewart, 8 Johns. (N. Y.) 125. 
 
 It must be exprfess and positive, and 
 coupled with no conditions. Goodwine 
 V. Miller, 32 Ind. 419. 
 
 A revocation must be absolute:. A prom- 
 ise by one of the contesting parties to a 
 submission to arbitration to pay certain 
 claims embraced in the submission; the 
 promise being upon such conditions, 
 however, as to leave unsettled the very 
 question of liability in respect to such 
 claims, which question was covered by 
 the submission, will not be regarded as a 
 withdrawal of them from the considera- 
 tion of the arbitrators. Steere v. Brown- 
 ell, 113 111. 415. 
 
 665 
 
Bevocation of Submission, 
 
 ARBITRATION. 
 
 Effect. 
 
 Effect of Revocation on the Parties. — Where one party revokes 
 his submission to arbitration without the consent of the other, he 
 will be liable in damages to the not-consenting party, on the arbi- 
 tration bond if there is one, or on an action for damages for breach 
 of contract. 1 
 
 Revocation Binding on both Parties. — If a submission for any 
 reason ceases to be binding upon one of the parties thereto, it 
 also ceases to be binding upon all the rest.* 
 
 submission, will operate as a revocation, 
 where the marriage would disable her 
 from disposing of the property in dispute 
 in her own name and by her own indi- 
 vidual action. Sutton v. Tyrrell, lo Vt. 
 gi; Marseilles v. Kenton, 17 Pa. St. 238; 
 Abbott V. Keith, 11 Vt. 525. 
 
 Death of one of the parties to a sub- 
 mission generally revokes it unless saved 
 by an express stipulation that it shall 
 survive. Marseilles v. Kenton, 17 Pa. 
 St. 238 ; Power v. Power, 7 Watts (Pa.), 
 205; Bailey v. Stewart, 3 Watts &S. (Pa.) 
 560; s. t., 39 Am. Dec. 50; Dexter v. 
 Young, 40 N. H. 130; Whitfield v. Whit- 
 field, 8 Ired. L. (N. Car.) 163; s. c, 47 
 Am. Dec. 350; Tyson ». Robinson, 3 
 Ired. (N. Car.) 333; Mclntire v. Morris, 
 14 Wend. (N. Y.) 90. 
 
 But if the submission be by rule of 
 court In a pending case, the result will be 
 different. Freeborn v. Denman, 3 Halst. 
 (N. J.) 116; Bacon w. Crandon, 15 Pick. 
 (Mass.) 79; Moore v. Webb, 6 Heisk. 
 (Tenn.) 301. 
 
 The death of a member of a partnersh ip, 
 parties to a submission, does not necessa- 
 rily work as a revocation. The remaining 
 partners may go on with the proceedings 
 if they choose. Emerson v. Udall, 8 Vt. 
 357; Power V. Power, 7 Watts (Pa.), 
 
 205- 
 
 Where a case is submitted to arbitra- 
 tors by consent, and before the award is 
 confirmed the defendant dies, whereby 
 an abatement of the suit was brought 
 about, it works as a revocation and pre- 
 vents the confirmation of the award. 
 Farmer v. Frey, 4 McCord (S, Car.), 160. 
 
 The administrator of the deceased 
 party may, however, go on with the ac- 
 tion, Wheatley v. Martin, 6 Leigh. (Va.) 
 62; Bacon v, Crandon, 15 Pick. (Mass.) 
 
 79- 
 
 The death of one of the arbitrators will 
 revoke the submission, even if by the 
 terms of the arbitration they had author- 
 ity to act either jointly or severally. 
 Potter V. Sterrett, 24 Pa. St. 411; Sutton 
 V. Tyrrell, 10 Vt. 91. 
 
 Where one of the parties has, accord- 
 ing to the submission, to fulfil certain 
 conditions before the arbitrators can pro- 
 
 ceed, a failure to fulfil the condition will 
 operate as a revocation. Allen v. Galpin, 
 9 Barb. (N. Y.) 246. 
 
 But simply neglecting to attend a meet- 
 ing by one pa,rty will not act as a revo- 
 cation. Brown v. Leavitt, 26 Me 251; 
 Bray z/.,, English, i Conn. 498. 
 
 The refusal of one of the arbitrators 
 to act will work as a revocation unless 
 the statute provides for substitution or 
 the submission itself makes expressly or 
 impliedly a contrary agreement. Wilson 
 V. Cross, 7 Watts (Pa.), 495; Binsse v. 
 Wood, 47 Barb. (N. Y.) 624; Crofoot v. 
 Allen, 2 Wend. (N. Y.) 494; Woodbury 
 V. Proctor, g Gray (Mass.), 18; Ross v. 
 Pleasants, Wythe (Va.), 147; Kimball v. 
 Oilman, 60 N. H. 54. 
 
 1. Brown v. Leavitt, 26 Me. 251; Call 
 V. Hagar, 6g Me. 521; Dexter v. Young, 
 40 N. H. 130; Frets v. Frets, i Cow. (N. 
 Y.) 335; Craftsbury v. Hill, 28 Vt. 763; 
 Aspinwall v. Tousey, 2 Tyler (Vt.), 328; 
 Hawley v. Hodge, 7 Vt. 240. 
 
 But the fact must be shown that the 
 party in some way revoked. Marshall v. 
 Reed, 48 N. H. 36. 
 
 The measure of damages where there 
 is a bond is, however, not the penalty 
 named in the bond, but actual damages 
 as proved. Blaisdell v. Blaisdell, 14 N. 
 H, 78. 
 
 Damages may include the costs of the 
 discontinued suit and the 'expenses in^ 
 curred by reason of the submission; but 
 not the damages sought to be recovered 
 by the original suit, unless the proceed- 
 ings have been such that it has become 
 impossible to recover in a fresh suit. 
 Blaisdell v. Blaisdell, 14 N. H. 78; Haw- 
 ley V. Hodge, 7 Vt. 237; Rowley v. 
 Young, 3 Day (Conn.), 118; Calli/. Hagar, 
 69 Me. 521; Pond v. Harris, 113 Mass. 
 114. 
 
 2. Power w Power, 7 Watts (Pa.). 205. 
 After a party has revoked a submission 
 
 in a manner invalid in itself, and neither 
 the other party nor the arbitrator objected 
 to it at the time, the revoking party will 
 afterward be estopped from denying the 
 validity of his revocation in a suit to re- 
 cover damages for the breach of his con- 
 tract. Hawley v. Hodge, 7 Vt. 237. 
 
Agreements to Submit, 
 
 ARBITRATION. 
 
 Not Allowed. 
 
 7. Specific Performance of Agreements to Submit. — Not Alloived. — 
 Agreements to submit to arbitration are not specifically enforce- 
 able. Whether they are the result of a voluntary act of the par- 
 ties or were embodied in a contract makes no difference. The 
 fact that either party has a right to revoke the submission ; the 
 insufficient power of the arbitrators to compel the attendance of 
 witnesses or the production of documents and papers and books 
 of account, or to insist upon a discovery of facts from the parties 
 under oath ; the fact that arbitrators are not ordinarily well 
 enough acquainted with the principles of law and equity to ad- 
 minister either effectually in complicated cases, have been held to 
 be sufficient reasons why agreements to submit to arbitration 
 should not be specifically enforced by the courts.* 
 
 1. Tobey v. County of Bristol, 3 Story 
 (U S.), 800; Sinclair o. Tallmadge, 35 
 Barb. (N. Y.) 602; Hurst v. Litchfield, 
 3g N. Y. 377; Greason v. Keteltas, 17 
 N. Y. 491; Hug V. Van Burkleo, 58 Mo. 
 202; Biddle v. Ramsey, 52 Mo. 153; St. 
 Louis V. Gaslight Co., 70 Mo. 69; Hop- 
 kins V. Gilman, 22 Wis. 476; Randel v. 
 Chesapeake, etc.. Canal Co., i Harr. 
 (Del.) 275; Contee v. Dawson, 2 Bland. 
 (Md.) 264; AUegre v. Maryland Ins. Co., 
 6 Harr. & J. (Md.) 408; s. c, 14 Am. Dec. 
 289; Rowe V. Williams, 97 Mass. 163; 
 Cavanagh v. Dooley, 6 Allen (Mass.), 66; 
 Nute V. Hamilton Ins. Co., 6 Gray 
 (Mass.), 174; Gray v. Wilson, 4 Watts 
 (Pa.), 39; Corbin v. Adams, 76 Va. 58; 
 Stone V. Dennis, 3 Port. (Ala.) 231; 
 Hill V. More, 40 Me. 515; March v. 
 Eastern R. Co., 40 N. H. 548; a. <_., 77 
 Am. Dec. 732; Smith v. Boston, etc., R. 
 Co., 36 N. H. 458; Connor v. Drake, i 
 Ohio St. 167; Coppers. Wells, i N. J. Eq. 
 10, Parties cannot oust the courts oiit of 
 their jurisdiction by embodying in a con- 
 tract the stipulation that all disputes and 
 controversies which may arise on the 
 contract shall be submitted to arbitra- 
 tion, and that the award of the arbitrators 
 shall be final. Such a condition will pot 
 be enforced. Pearl v. Harris, 121 Mass. 
 390; Wood?/. Humphrey, 114 Mass. 185; 
 Rowe V. Williams, 97 Mass. 163; Cava- 
 nagh V. Dooley, 6 Allen (Mass.), 66; 
 Kistler^z*. Indianapolis, etc., Co., 88 Ind. 
 460; Bauer i;. SamsOn Lodge K. of P., 102 
 Ind. 262; Supreme Council of O. of C. F. 
 ■V. Garrigus, i Western Repr. (Ind.) 861; 
 Randel v. Chesapeake, etc., Canal Co., I 
 Harr. (Del ) 233; Robinson v. Georges 
 Ins. Co., 17 Me. 131; s. c, 35 Am. Dec. 
 239; Hill V. More, 40 Me. 515; Holmes 
 ». Richet, 56 Cal. 307; s. c, 38 Am. Dec. 
 S4; Allegre &. Maryland Ins. Co., 6 H. 
 & J. (Md.) 40S; s. c, 14 Am. Dec. 289; 
 March i/. Eastern R. Co., 40 N. H. 548; 
 
 s. c, 77 Am. Dec. 732; Smithj/. Boston, 
 etc., R. Co., 36 N. H. 458; Stone v. 
 Dennis. 3 Port. (Ala.) 231; Mentz v. Ar- 
 menia Fire Ins. Co., 79 Pa. St. 478; o. c, 
 21 Am. Rep. 80; Gray v. Wilson, 4 
 Watts (Pa.), 39; Smith v. Compton, 20 
 Barb. (N. Y.) 267; Heath v. N. Y. Gold 
 Exchange, 38 How. Pr. (N. Y.) 170; 
 Hurst V. Litchfield, 39 N. Y. 377; Stro- 
 marer v. Neppenfeldt, 3 Mo. App. 429; 
 Home Ins. Co. o. Morse, 20 Wall. (U. 
 S.) 445; Liverpool, etc., Ins. Co. v. 
 Creighton, 51 Ga. 95; Scott v. Avery, 5 
 H. L.,Cas. 811 ; Callinan v. R. Co., 27 
 N. Western Repr. (Mich.) 718; McGunn 
 v'. Hanlin, 29 Mich. 480. 
 
 So it was held that a. by-law of the 
 Union Merchants' Exchange of St. Louis, 
 which compels members to submit their 
 business controversies to arbitration un- 
 der penalty of being suspended or ex- 
 pelled is unreasonable in a legal sense 
 and cannot be sustained. State v. Mer- 
 chant's Exch., 2 Mo. App. 96; Savannah 
 Cotton Exch., v. Slate, 54 Ga. 668. 
 Compare White v. Brownell, 4 Abb. Pr. 
 N. S. (N. Y ) 162. 
 
 ,An indictment had been preferred 
 against the defendant for obstructing a 
 public road or right of way across cer- 
 tain lots; and after the trial thereof had 
 proceeded some time, was unavoidably 
 adjourned till another court, before the 
 sitting of which an acireement to refer 
 the indictment and all matters in dispute 
 to arbitration was entered into. In pur- 
 suance of such agreement evidence was 
 taken before the arbitrators, who made 
 an award that the defendant should pay 
 twenty-five cents damages to the munici- 
 pality, and that each of the parties should 
 pay his own costs of the criminal pro- 
 ceedings and one half the costs of the 
 arbitration, and if the whole of the latter 
 costs were paid by one of them such 
 party should be entitled to be repaid one 
 !7 
 
Agreements to Submit. 
 
 ARBITRATION. 
 
 Condition Precedent. 
 
 Condition Precedent. — Where a contract provides for the ap- 
 pointment of arbitrators as a condition precedent' to the right of 
 
 half. The plaintiffs having paid the 
 whole of these costs sued the defendant 
 for a moiety thereof. Held, that the sub- 
 mission having been entered into with 
 the intention of abandoning and for the 
 express purpose of putting an end to the 
 prosecution of the indictment, it was il- 
 legal and void and could not be made 
 the foundation of a binding award, and 
 the action was dismissed. Hungerford 
 V. Lattimar, 13 Ontario App. 315. 
 
 An agreement between a corporation 
 and a person entering its employ pro- 
 vided that the employee should deposit a 
 certain sum of money with the corpora- 
 tion, as security for the proper discharge 
 of his duties; that the president of the 
 corporation should be the sole judge be- 
 tween the corporation and the employee 
 whether the corporation was entitled to 
 retain the whole or any part of the de- 
 posit, and that his certificate in writing 
 that the whole or any part of said sum 
 was to be so retained and forfeited to the 
 corporation should be conclusive evi- 
 dence between the parties, in all courts 
 of justice, that the amount thereby for- 
 feited was so forfeited, and should bar 
 the employee of all right, under any cir- 
 cumstances, to recover the money so cer- 
 tified to be forfeited. Held, in an action 
 by the employee against the corporation 
 to recover the sum so deposited, that the 
 latter clauses were an agreement to sub- 
 mit to arbitration and an attempt to oust 
 the courts of jurisdiction, and were void. 
 White V. Middlesex R. Co.. 15 Am. & 
 Eng R. R. Cas. 131; s. c, 135 Mass. 216. 
 
 A contracted with B for the sale of cer- 
 tain shares in a corporation, guarantee- 
 ing that the corporation would employ 
 him at a certain salary, and stipulating 
 that if the company failed to give him 
 ernployment A should buy the shares 
 of B at a fair price to be determined by 
 arbitrators if the parties could not agree 
 upon it themselves, the decision of the 
 arbitrators to be final. Held, that spe- 
 cific performance could not be compelled. 
 Noves V. Marsh, 123 Mass. 286. 
 
 A mortgage was given to secure a bond 
 which contained the stipulation that 
 "should either party be dissatisfied with 
 the fulfilling of the above bond it shall be 
 submitted to certain named persons and 
 their decision shall be final." It was 
 held that the mortgagee may commence 
 proceedings to foreclose without waiting 
 for this decision. Hill v. More, 40 Me. 
 515. 
 
 A testator provided in his will that all' 
 disputes concerning the will should be- 
 settled by certain arbitrators, and that 
 any party who should refuse to submit, 
 should lose his rights under the will. 
 Held, that no such forfeiture could be in- 
 curred by contesting any disputable mat- 
 ter concerning the will in court. Contee 
 V. Dawson, 2 Bland. (Md.) 264. 
 
 Provisions in insurance policies that 
 all disputes arising under the policy shall 
 be submitted to arbitrators are not en- 
 forceable. An action may be commenced 
 without any offer to refer. Allegre w. 
 Maryland Ins. Co., 6 H. & J. (Md.)4o8;: 
 s. c. 14 Am. Dec. 289; Stephenson z/. 
 Piscataqua F. & M. Ins. Co., 54 Me. 55;. 
 Robinson v. Georges Ins. Co., 17 Me. 
 131; Amesbury v. Bowditch Ins. Co., fr 
 Gray (Mass.), 596; Hall v. People's M. 
 F. Ins. Co., 6 Gray (Mass.), 185; Cobb v. 
 New England M. M. Ins. Co., 6 Gray 
 (Mass.). 193; Troit v. City Ins. Co., 1 
 Cliff. (U. S.) 439. 
 
 'Where in leases the stipulation has 
 been made that at the expiration a re- 
 newal can be had at a rent to be deter- 
 mined by arbitrators or appraisers, the 
 courts, although willing to enforce renew- 
 als of leases so contracted for, have re- 
 fused to compel the naming of arbitrat- 
 ors. Johnson v. Conger, 14 Abb. Pr. (N. 
 Y.) 195; Kelso V. Kelly, i Daly (N. Y.). 
 419; Greason v. Keteltas, 17 N. Y. 491; 
 Biddle v. Ramsey, 52 Mo. 153; Stroh- 
 maier v. Zeppenfeld, 3 Mo. App. 429; 
 Hopkins v. Gilman, 22 Wis. 476. But 
 compare Tscheider v. Biddle, 4 Dill. (U. 
 
 s.) 55. 
 
 Under a lease of a lot for a term the 
 lease provided that the lessee might erect 
 a building, and that at the end of the 
 term the lessor might elect to renew the 
 lease, or to buy the building or sell the 
 lot, at a price to be ascertained by arbi- 
 trators. The lessee built, but the lessor 
 failed to elect. The lessee then elected 
 to purchase the lot. tut the lessor refused 
 to join in an arbitration to fix the price. 
 Held, that the lessee was entitled to equi- 
 table relief. Coles v. Peck, 96 Ind. 333; 
 ?. c, 49 Am. Rep. t6i. 
 
 In New York the court will fix the rent 
 or direct a renewal at the former rent. 
 Johnson v. Conger, 14 Abb. Pr. (N. Y.) 
 
 195- 
 
 A party who refuses to abide by the 
 agreement is, however, liable to a suit 
 for damages on breach of the contract. 
 Haggart v. Morgan, 5 N. Y. 422; s. c, 
 
 668 
 
^^eements to Submit. 
 
 ARBITRATION. 
 
 Condition Precedent. 
 
 -action, such condition must be fulfilled before an action can be 
 brought ; as where the price of materials t^ be purchased, or the 
 value of work to be done, is to be settled by arbitration, no fixed 
 price being stated in the contract. Parties to a contract may fix 
 on any mode they think fit to liquidate damages, in their own 
 ^nature unliquidated ; and in such case no recovery can be had until 
 the prescribed method has been pursued, or some valid excuse 
 ■exists for not pursuing it.^ 
 
 55 Am. Dec. 350; Miller v. Junction 
 Canal Co., 53 Barb. (N. Y.) 590; Corbin 
 ■V. Adams, 76 Va. 58. 
 
 Where the agreement to submit is only 
 a subsidiary part of a general agreement 
 to compromise, on which compromise 
 judgment was given, as where a bound- 
 ary line was fixed and in consequence a 
 small strip of land had to be conveyed, 
 the price of which was to be determined 
 by arbitration, the court will substitute 
 itself in place of the arbitrators in case 
 ■one of the parties refuses to name one. 
 Black V. Rogers, 75 Mo. 441. 
 
 1. Old Saucelito Land & Dry-dock Co. 
 ■V. Commercial Union Ass. Co., 5 Pac. 
 Rep. (Cal.) 232; Perkins v. U. S. Electric 
 Light Co., 16 Fed. Rep. 513; Smith v. 
 Boston, etc., R. Co., 36 N. H. 458; 
 Holmes v. Richet, 56 Cal. 307; s. c. 38 
 Am. Dec. 54; Haley v. Bellamy. 137 
 Mass. 357; Palmer v. Clark, 106 Mass. 
 .373! Hood w. Hartshorn, 100 Mass. 117; 
 Rowe V. Williams, 97 Mass. 163; Daven- 
 port V. Long Island Ins. Co., 10 Daly 
 -(N.Y,), 535; Delaware, etc.. Canal Co. v. 
 Pennsylvania Coal Co., 50 N. Y. 250; 
 Xafond v. Deems, 31 N. Y. 507; Hudson 
 V. McCartney, 33 Wis. 331; Herrick v. 
 Belknap, 27 Vt. 673; United States v. 
 Jlobeson, 9 Pet. (U. S.) 319; Trott v. 
 City Ins. Co., i Cliff. (U. S.) 439. 
 
 Such provision must, however, be com- 
 plete in itself and state the number of ar- 
 bitrators and the mode of their appoint- 
 ment. Mark v. Nat. Fire Ins. Co., 24 
 Hun (N. Y.), 565- 
 
 But when the controversy arises out of 
 the non-payment of a sum of money 
 istipulated in the contract, such provision 
 will not be binding. Sutro Tunnel Co. 
 ■V. Segregated, etc., Min. Co., 8 Am. & 
 Engl. Corp. Cas. 209. 
 
 A provision in an insurance policy re- 
 ■quiring preliminary proofs before a loss 
 is paid, and a reference to arbitration in 
 •case of difference to determine the loss, 
 will be upheld. Gauche v. London, etc., 
 Ins. Co., ID Fed. Rep. 347; Avery v. 
 Scott, 8 Welsh. H. & G. 497; Davenport 
 ■V. Long Island Ins. Co., 10 Daly (N. Y.), 
 535; Mentz V. Armenia Ins. Co., 79 Pa. 
 St. 478; s. c, 21 Am. Rep. So. See also 
 
 Liverpool, etc., Ins. Co. v. Creighton, 51 
 Ga. 95. But compare Crossley v. Con- 
 necticut Fire Ins. Co., 27 Fed. Rep. 
 30. 
 
 But in such a case the company must 
 show that they admitted the validity of 
 the policy and their liability under it, and 
 that the only question was as to the ex- 
 tent of the loss. Mentz v. Armenia Fire 
 Ins. Co., 79 Pa. St. 478; s. c, 21 Am. 
 Rep. 80; Robinson v. Georges Ins. Co., 
 17 Me. 131; s. c, 35 Am. Dec. 239; Mil- 
 landon v. Atlantic Ins. Co., 8 La.' Ann. 
 568; Lasher v. Northwestern Nat. Ins. 
 Co., 57 How. Pr. (N. Y.) 224. 
 
 So a clause in a life-insurance policy, 
 which provided that the company would 
 pay the amount insured if in the opinion 
 of their surgeon-in-chief the party did 
 not die of intemperance or by any disease 
 produced or aggravated by intemperance, 
 is a condition precedent to the right to 
 sue. Campbell v. American, etc., Ins. 
 Co., I McArth. (D. C.) 250; s. c, 29 
 Am. Rep. 591. . ^ 
 
 But where the submission to arbitra- 
 tion, according to the terms of the policy, 
 was to be made "at the request of either 
 one of the parties," it was considered not 
 to be a condition precedent, and the in- 
 sured was allowed to sue before the arbi- 
 tration took place. Gere v. Council 
 Bluffs Ins. Co., 23 N. Western Repr. 
 (Iowa) 137; Wallace v. German Ins. Co., 
 4 McCrary (C. C), 123; Phoenix Ins. Co. 
 V. Badger, 53 Wis. 283; Nurney v. Fire- 
 man's, etc., Ins. Co., 6 Western Repr. 
 (Mich.) 639; Mentz v. Armenia F. Ins. 
 Co., 79 Pa. 478; Reed J/. Washington Ins. 
 Co., 138 Mass. 572; Leach v. Republic, 
 etc., Ins. Co., 58 N. H. 245; Mark v. 
 Nat. Fire Ins. Co., 91 N. Y. 663; Steven- 
 son V. Piscataqua Ins. Co., 54 Me. 55. 
 
 And where, through the failure and re- 
 fusal of the company, the arbitration did 
 not take place or was ineffectual, and suit 
 was brought, and in the mean time, partly 
 under orders of the city, the dibris was 
 removed, and the company then requested 
 plaintiff to submit to a second arbitration, 
 which he refused, it was held that, having 
 once consented to arbitrate, the arbitra- 
 tion clause could no longer stand in the 
 
 669 
 
Agreements to Submit. 
 
 ARBITRATION. 
 
 Arbitrators.. 
 
 8. Arbitrators. — Who may be chosen Arbitrators. — An arbitrator 
 is a person selected by the mutual consent of the parties to deter^ 
 
 way of the action. Uhrig v. Williams- 
 burg, etc., Ins. Co., loi N. Y. 362. 
 
 Where receipt in full is given and there 
 is agreement to arbitrate, and arbitration 
 fails through fault of payee, held, he can- 
 not sue on original contract. Heming- 
 way V. Stansell, 2 Am. & Eng. Corp. 
 Cas. 335; s. u. , 106 U. S. 39g. 
 
 A condition inserted in a contract for 
 work, that in case of difference or dispute 
 about the work performed a reference to 
 an engineer or other expert shall be made 
 before suit can be brought, will be upheld 
 asa "condition precedent" to recovery by 
 suit. Monongahela Nav. Co. v. Fen- 
 Ion, 4 Watts. & S. (Pa.) 205; Howard v. 
 Alleghany Valley R. Co., 6g Pa. St. 489; 
 Hartupee v. Pittsburgh, 97 Pa. St. 107; 
 Railr. Co. v. McGrann, 33 Pa. St. 530; 
 Faunce v. Burke, 16 Pa. St. 469; s. c, 
 55 Am. Dec. 519; Condon v. Southside 
 R. Co., 14 Gratt. (Va.) 302; Butler v. 
 Tucker, 24 Wend. (N. Y.) 447; Smith v. 
 Brady, 17 N. Y. 173; s. c,, 72 Am. Dec. 
 442; Smith V. Briggs, 3 Den. (N. Y.) 73; 
 Herrick v. Belknap, 27 Vt. 673; Low v. 
 Fisher, 27 Fed. Rep. 542. 
 
 But where it was agreed in a contract 
 for the construction of a railroad that the 
 company's engineer should certify to the 
 performance of the work, and should 
 determine all questions in dispute be- 
 tween the parties, held, tha.t this did not 
 preclude the builders from maintaining 
 an action in court to recover of the com- 
 pany the balance due them under the 
 facts certified by the engineer. Flynn v. 
 Des Moines, etc, R. Co., 63 Iowa, 492. 
 
 But where a building contract stipu- 
 lated for an arbitration in case of dispute 
 as to the true value of extra work or of 
 work omitted, it was held that disputes as 
 to whether certain work was extra work, 
 and as to whether extra work done at 
 agreed prices was properly done, were 
 not within the stipulation. Such astipu- 
 lation would oust a court of law or equity 
 of all jurisdiction over the matter falling 
 within the stipulation. Weeks ii. Little, 
 47 N.Y.. Super. Ct.l; Hartw.Lauman, 29 
 Barb. (N. Y.) 410; Sinclair v. Tallmadge, 
 35 Barb. (N. Y.) 607; Doyle v. Halpin, i 
 Jones & S. (N. Y.) 369. 
 
 And a contractor can sue for damages 
 for breach of contract by the owner if the 
 owner under a contract containing this 
 stipulation refuses to allow the contractor 
 to do the work contracted for. Boyd v. 
 Meighan, 3 Central Rep. 689. 
 
 And where an agreement for work to 
 be done provided for the submission to 
 
 the architect of all disputes in relation to 
 the agreement or annexed plans and 
 specifications, it was held that matters 
 outside not brought before the architect 
 could be set up in subsequent indepen- 
 dent proceedings. Busse v. Agnew, 10 
 111. App. 527. 
 
 A written agreement that in case the 
 cattle of either party should trespass and 
 do injury on the lands of either of the 
 other parties the damages payable should 
 be ascertained by arbitration and not by 
 action, is valid and binding,, and precludes 
 either party so injured from suing the 
 owner of the trespassing cattle unless the 
 latter has refused arbitration. Berry v. 
 Carter, 19 Kan. 135. 
 
 Where two parties enter into an agree- 
 ment by which one is to erect improve- 
 ments on the lands of the other, the 
 value thereof to be estimated by two 
 disinterested persons, one party cannot 
 defeat the right to an appraisement by 
 refusing to appoijit an arbitrator, and a 
 refusal or failure to appoint gives the 
 other party an undisputed right to have 
 the valuation made. Orne v. Sullivan, 
 3 How. (Miss.) 161; s. c, 34 Am. Dec. 
 
 74- 
 
 One of the stipulations in a contract 
 between the plaintiff and defendant com- 
 panies was, that if any dispute arose be- 
 tween them it should be referred to arbi- 
 tration, each of the parties to name an 
 arbitrator, and the two within ten days 
 after the appointment of the one last 
 named should appoint an umpire; but if 
 either party should neglect or refuse to 
 appoint an arbitrator for the space of ten 
 days after being requested so to do, or 
 should appoint an arbitrator who should 
 refuse or neglect to act as such, then the 
 arbitrator of the party making such re- 
 quest should appoint an arbitrator on 
 behalf of the other party. A notice by 
 the defendant company requiring the 
 plaintiff company to appoint an arbitra- 
 tor was duly served on the loth of June, 
 on the agent of the plaintiff company in 
 New York, and on the 19th the plaintiff 
 company, by cablegram from London, 
 named one C. M. D. , of New York, as 
 their arbitrator. On the 28th of the same 
 month S., the arbitrator of the defendant 
 company, wrote to C. M. D., requiring, 
 him to joip in the naming of an umpire; 
 but he answered that he was about to 
 leave the city and would return on the 
 30th, and that having been only advised 
 by cable of his appointment, and that 
 his commission would be mailed to him, 
 
 670 
 
Arbitrators. 
 
 ARBITRATION. 
 
 Who may be Chosen. 
 
 mine the matters in controversy between tHem, whether they be 
 matters of law or fact. Neither natural nor legal disabilities hin- 
 der a person from being an arbitrator. It has, indeed, been laid 
 down in works to which great respect is due, that idiots, lunatics, 
 infants, married women, persons attainted and excommunicated, 
 are disqualified for the office ; but the better opinion is that they 
 may be arbitrators, for every person is at liberty to choose whom 
 he likes best for his judge, and he cannot afterward object to the 
 manifest deficiencies of those whom he himself has selected. ^ 
 
 of Wheeling, i6 W. Va. 658; s. c.,37 Am. 
 Rep. 800; Mayor v. Hamilton Fire Ins. 
 Co., 39 N. Y. 45; Longhurst v. Star Ins. 
 Co., 19 Iowa, 364; Stout V. City Fire 
 Ins. Co. of New Haven, 12 Iowa, 371. 
 Compare Johnson v. Humboldt Ins. Co., 
 gi 111. 92; s. c, 33 Am. Rep. 47; Trott. w. 
 City Ins. Co., i Cliff (U. S.), 439. 
 
 Where a fire-insurance policy provides 
 for the submission of certain matters to 
 arbitration and expressly refuses to sub- 
 mit others, the report of such a submis- 
 sion should fully identify it. Haslinger 
 V. Long Island Ins. Co., 28 N. Western 
 Repr. (Mich.) 762. 
 
 The insurance company may waive the 
 agreement to arbitration by repairing or 
 rebuilding the insured and damaged 
 property. Cobb v. New England M. 
 Ins. Co., 6 Gray (Mass.), 193. 
 
 A p^rty to a building contract may 
 waive a stipulation therein that the final 
 payment to be made by him shall not be 
 required unless the architect shall certify 
 that the contract has been fully performed 
 to his satisfaction; an acceptance of the 
 building as under a completed contract is 
 such a waiver, and entitles the contractor 
 to recover the sum due, although no cer- 
 tificate has been given, and although the 
 architect is not satisfied. Smith v. Alker, 
 102 N. Y. 87. 
 
 1. Russell on Arb. 115; Morse on Arb. 
 99; Bacon's Abr., title Arb. D; Evans 
 V. Ives, 15 Phila. (Pa.) 635; Dickinson 
 V. Railroad, 7 W. Va. 390. 
 
 Where the contract between the parties 
 provides that all questions of difference 
 shall be referred to the chief engineer of 
 a particular corporation, the person who 
 filled the office of and is acting chief 
 engineer when the adjudication was called 
 for, is the proper person to decide dis- 
 putes between them. Connor v. Simp 
 son, 7 Atl. Repr. (Pa.) 161. 
 
 Where the agreement was to refer the 
 matter in dispute " to two disinterested 
 men, together with A as surveyor, with 
 privilege to call in a third party," etc., 
 held, that the reference is to two arbitra- 
 tors only, with liberty to call in another, 
 and the surveyor is designated to aid and 
 
 he could not until its arrival intelligently 
 take any action. On the 30th C. M. D. 
 returned to his office, and then wrote to 
 S. expressing his readiness to act, and at 
 the same time confirmed the nomination 
 made by his partners, during his ab- 
 sence, of an umpire. Held [affirming 
 the decree of the court below], (i) that 
 the facts did not establish any refusal or 
 neglect on the part of C. M. D. to act as 
 arbitrator, such as would justify S. in 
 naming an arbitrator in his stead ; (2) 
 that the naming by the arbitrators of an 
 umpire was not such an act as required 
 C. M. D. to take part in within ten days 
 from his appointment, or in default that 
 his appointment should be vacated and 
 S. have the right to name a substitute. 
 The Direct U. S. Cable Co. v. The Do- 
 minion Telegraph Co. of Canada, 8 On- 
 tario App. 416. 
 
 In Pennsylvania the courts have been 
 more liberal in enforcing similar condi- 
 tions in contracts than in other States; 
 and they have generally held the parties 
 strictly to them. O'Reilly v. Kerns, 52 
 Pa. St. 214; Reynolds v. Caldwell, 51 
 Pa. St. 2g8; Snodgrass v. Gavit, 28 Pa. 
 St. 221; Faunce v. Burke, 16 Pa. St. 469; 
 s. c, 55 Am. Dec. 519; Monongahela 
 Nav. Co. V. Fenlon. 4 Watts & S. (Pa.) 
 205; Fox V. The Railroad, 3 Wall., Jr. 
 (U. S.) 243. 
 
 Although a court of equity will not 
 decree specific performance of a contract 
 to arbitrate, it will not be error for the 
 court, by consent of the parties, to per- 
 mit the amount to be ascertained by 
 arbitrators, and to decree the Jimount 
 thus found. Conner v. Drake, i Ohio 
 St. 166. 
 
 An insurance policy provided that no 
 action should be sustained thereon unless 
 commenced within six months after the 
 loss should occur, and also that no suit 
 could be maintained until arbitrators had 
 fixed the, amount of the loss. Held, that 
 the action could be commenced within 
 six months after the arbitrators had fixed 
 the amount of the loss, although more 
 than six months after the loss oc- 
 curred. Barber v. Fire & M. Ins. Co. 
 
 671 
 
Arbitrators. 
 
 ARBITRA TION. 
 
 Uust have no interest. 
 
 Must have no Interest in the Matter. — An arbitrator should have 
 no interest in the matter to be decided, and where facts exist which 
 could influence him in favor of either of the contesting parties, 
 such as relationship, joint interest, or a preconceived opinion, he is 
 incompetent. This refers, however, only to secret interests. If 
 such facts are known to the contesting parties, and they do not 
 object, they will be considered to have waived their objections.^ 
 
 The interest must be of such a character that it is probable that 
 it will affect the action of the arbitrator. If far remote or trifling, 
 the courts will refuse to interfere.* 
 
 not to act as one of them. Crawford v, 
 Orr, 84 N. Car. 246. 
 
 Executive officers authorized by law to 
 examine certain claims and to report to 
 Congress are not arbitrators. Ludington 
 •V. U. S., 15 Ct. of CI. 453. 
 
 1. Strong w. Strong, 9 Cush. (Mass.) 
 560; Fox V. Hazelton, 10 Pick. (Mass.) 
 275; Conrad v. Massasoit Ins. Co., 4 Al- 
 len (Mass.), 20; Hicks v. McDonnell, 99 
 Mass. 459; Combs v. Wyckoff, i Cai. (N. 
 Y.) 147; Perry v. l^oore, 2 E. D. Smith 
 {N. Y.), 32; Hopkins v. Sodonskie, i Bibb, 
 (Ky.) 148; Fisher v. Tonner, 14 Conn. 
 26; Brown v. Leavitt, 26 Me. 251; Pool 
 V. Hennessey, 39 Iowa, 192; s. c, 14 Am, 
 Rep. 44; jEtna Ins. Co. v. Stevens, 48 
 111. 31; Davis V. Forshee, 34 Ala. 107; 
 Dougherty v. McWorter, 7 Yerg. (Tenn.) 
 239; Monongahela Nav. Co. v. Fenlon, 
 4 Watts & S. (Pa.) 205; Bash v. Christian, 
 77 Ind. 290. 
 
 And the knowledge of the attorney of 
 a party has been held to be the knowl- 
 edge of the party himself. Perry v. 
 Moore, 2 E. D. Smith (N. Y.), 32. 
 
 Where an arbiter mutually agreed upon 
 by the parties to a contract is a partner 
 of one of the parties, and conceals that 
 fact from the other, his award is invalid. 
 If, however, the other party knew of the 
 partnership, and, with such knowledge, 
 agreed upon him as arbiter, he cannot 
 afterwards complain. Connor v. Simp- 
 son 7 Atl. Repr. (Pa.) 161. 
 
 2. Leominster v. Fitchburg, etc., R. 
 Co., 7 Allen (Mass.), 38. 
 
 So will the award of an arbitrator not 
 be set aside because he had formerly act- 
 ed as counsel in another action for the 
 party in whose favor he makes the award; 
 although this fact was not known to the 
 unsuccessful party or his counsel, no in- 
 tentional concealment of the fact being 
 proved. Goodrich v. Hulbert, 123 Mass. 
 190; s. c, 25 Am. Rep. 60. And see Che- 
 ney V. Martin, 127 Mass. 304. 
 
 Mere indebtedness of a party to the ar- 
 bitrator does not disqualify the latter; but 
 it would be different if the amount of in- 
 
 debtedness was considerable, and if an 
 award favorable to the indebted party 
 would affect the creditor's chances of ob- 
 taining payment. Wallis v. Carpenter, 
 
 13 Allen (Mass.), ig; Fisher v. Townner, 
 
 14 Conn. 26. 
 
 But where a railroad company and a 
 land-owner through whose land the rail- 
 road was to be built submitted matters 
 concerning such land to arbitrators, the 
 award was set aside because one of tl^em 
 was related to the mortgagee of the land, 
 anjl the company was ignorant of the 
 mortgage. Stephenson v. Oatman, 3 Lea 
 (Tenn.), 462. 
 
 Neither is mere indebtedness of the ar- 
 bitrator to one of the parties a ground' for 
 disqualification. Morgan v. Morgan, i 
 Dowl. 611; Chicago, etc., R. Co. v. 
 Hughes, 28 Mich. 186. 
 
 But' an extraordinary large award to 
 one who was insolvent and indebted to 
 the arbitrators or their relatives, which 
 award was immediately after being made 
 assigned to them, together with other evi- 
 dence showing that the arbitrator might 
 not have been impartial, was set aside. 
 Rand -z/. Redington, 13 N. H. 72. See 
 Spearman v. Wilson, 44 Ga. 473. 
 
 In an action begun by trustee process 
 in which W. and his partner appeared as 
 claimants, it appeared that defendant and 
 trustee agreed to submit a matter where- 
 in defendant made claim against trustee 
 to arbitration. The arbitrators met, with 
 the parties, and while they were deliber- 
 ating, but before they had agreed, W., 
 one of the arbitrators, drew an assign- 
 ment from defendant to himself and his 
 partner of whatever might be awarded, 
 whereby they were to pay certain costs 
 for defendant with a part thereof and ap- 
 ply the remainder to payment of a debt 
 that they claimed the defendant then 
 owed them. The arbitrators were unable 
 to agree, and R., one of them, went home 
 after proposing a certain sum and proni- 
 ising to sign an award therefor, if noti- 
 fied that night. The trustee also went 
 home. W. and the other arbitrator, after 
 
 673 
 
Arbitrators. 
 
 ARBITRATION. Adverse Opinion— Objetions. 
 
 Adverse Opinion. — Where an arbitrator after his appointment, 
 and before hearing the parties, expressed an adverse opinion to 
 the claim submitted, wliich fact was then unknown to the parties, 
 he was held to be disqualified, and his award set aside.^ 
 
 When Objection tniist be Raised. — If a party to an arbitration ob- 
 jects to one of the arbitrators on account of an incompetency, he 
 must make his objection known as soon as he receives knowledge 
 of facta making the arbitrator incompetent. If he goes on with 
 the proceedings he will be considered to have waived his objec- 
 tion.2 
 
 Agents of both Parties. — Arbitrators are agents of both parties ; 
 hence their acts are considered as the acts of the parties them- 
 
 consulting defendant and finding that he 
 would be satisfied with the sum named, 
 agreed upon that sum and signed the 
 award; and defendant then sighed the as- 
 signment. W. thereupon went to R.'s and 
 told him that on consulting defendant 
 they had "come to his terms." R. re- 
 plied that as they had consulted defend- 
 ant he would consult trustee. W. and 
 R. accordingly went to trustee's and told 
 him what had been agreed on, and, as he 
 was satisfied with the sum awarded, R. 
 signed the award. W. then notified the 
 trustee of the assignment. Afterwards 
 process was served herein. Neither 
 trustee nor claimants questioned the 
 validity of the award. Held, that the 
 award was rendered invalid fay the taking 
 of , the assignment, even although the 
 trustee assented thereto; that the assign- 
 ment fell with the award; and that there 
 was no agreement between trustee and 
 defendant upon the sum to be paid and 
 received in settlement of the controver- 
 sy. Woodworth v. McGovern, 52 Vt. 
 318. 
 
 The case will also be different if the 
 debt be discreditably contracted, and in 
 relation to the subject of the reference. 
 Beddow v. Beddow, L. R. 9 Ch. D. 89. 
 
 Family relationship between the arbi- 
 trator and one of the parties, unknown 
 to the other party at the time of the ap- 
 pointment, which arbitrator is objected 
 to afterward, will be a cause of disquali- 
 fication. Brown v. Leavitt, 26 Me. 251; 
 Pool V. Hennessey, 39 Iowa, 192; s. c, 
 18 Am. Rep. 44. 
 
 1. Bowen v. Steere. 6 R. I. 251; Taber 
 V. Jenny, I Sprague (U. S.), 315; Beattv 
 V. Hilliard, 55 N. H. 428. 
 
 An opinion formed by one of the arbi- 
 trators before hearing, but without evi- 
 dence that his mind was so biassed that it 
 was not open to conviction, and where 
 there is no imputation of unfairness, will 
 not be sufficient to have his award set 
 
 aside. Graves v. Fisher, 5 Me. 69; s. c, 
 17 Am. Dec. 203. 
 
 Mere intercourse of arbitrators with 
 the parties or others on the subject of 
 the arbitration is not ground for setting 
 aside an award. Flatter v. McDermitt, 25 
 Ind. 326; Shear v. Mosher, 8 111. App. 119. 
 
 On a notice to confirm the award of 
 three arbitrators in favor of A against a 
 corporation, it appeared as facts that A 
 and one of the arbitrators were familiar 
 acquaintances; that before the submis- 
 sion A had honestly stated to that arbi- 
 trator the principal facts in the case, and 
 that thereupon the arbitrator had ex- 
 pressed the opinion that "no commercial 
 house could stand upon the transaction," 
 and advised A to submit the matter to 
 arbitration. Held, that no error of law 
 appeared, and the award should be af- 
 firmed. Morville v. Am. Tract. Soc, 
 123 Mass. 129; s. c, 25 Am. Rep. 40. 
 
 Partisanship in an arbitrator in favor 
 of the party selecting him will be suffi- 
 cient ground for disqualification, unless 
 both parties selected partisans. Wheel- 
 ing Gas. Co. V. Wheeling, 5 W. Va. 448. 
 
 It is very improper in an arbitrator to 
 accept hospitality from one of the parties; 
 and if the invitation be given with the in- 
 tent, or have the effect of inducing the 
 arbitrator to act unfairly, the court will 
 set aside the award. Russell on Arb. 
 181; In re Hopper, 8 B. & S. 100; Mose- 
 ley V. Simpson, L. R. 16 Eq. 226; Noyes 
 V. Gould, 57 N. H. 20. 
 
 2. Fox V. Hazelton, 10 Pick. (Mass.) 
 275; Brown v. Leavitt, 26 Me. 251; 
 Noyes v. Gould, 57 N. H. 20; Perry v. 
 Moore, 2 E. D. Smith (N. Y.), 32; Robb 
 V. Brachman, 38 Ohio St. 423. 
 
 And this applies to cases where an ob- 
 jectionable arbitrator has been chosen by 
 the attorney of one of the parties. The 
 objecting party must make his objections 
 known at once. Combs v. Wyckoff, i 
 Cai. (N. Y.) 147. 
 
 I C. of L.— 44 
 
 673 
 
Arbitrators. 
 
 ARBITRATION. 
 
 Agents— OatK 
 
 selves, and a balance found by the arbitrators is considered as a 
 balance struck by the parties on an account stated by them- 
 selves.i 
 
 Arbitrators Oath. — At common law it is not necessary that 
 arbitrators should be sworn unless specially required by the sub- 
 mission.** The statutes of the various States, however, almost 
 universally require that the arbitrators should be sworn before 
 commencing proceedings. In some States the oath is compul- 
 sory ;^ in others it may be waived by the parties either directly 
 or impliedly, but is compulsory if not waived ; * while others do 
 not require arbitrators to be sworn. ^ 
 
 1. Hays V. Hays, 23 Wend. (N. Y.)363; 
 Browning v. Wheeler, 24 Wend. (N. Y.) 
 258; s. c, 35 Am. Dec. 617; Brown v. 
 Harper, 54 Iowa, 546. 
 
 But although nominated one by each 
 parly, they are not to consider them- 
 selves as representing separate parties 
 and advocates of opposite sides, but as 
 called on to execute a joint trust and to 
 look impartially at the true merits of the 
 matter submitted to their judgment. 
 Strong V. Strong, 9 Cush. (Mass.) 560. 
 
 In' England it has been held that 
 evtn a party to the arbitration can act 
 as arbitrator by consent of the other 
 parly. Matthew v. Ollerton, 4 Mod. 
 226 
 
 Thp judge in a case pendente lite is not 
 disqualified from acting as arbitrator in 
 the same case, and if so acting no writ of 
 error will lie to his decision and award. 
 Hughes V. Peaslee, 50 Pa^ St. 257; Dins- 
 more V. Smith, 17 Wis. 20; Walworth Co. 
 Bank i). Farmers' Loan and Trust Co., 22 
 Wis. 231; Davis v. Forshee, 34 Ala. 107', 
 Galloway -u. Webb, Hardin (Ky.), 318. 
 Compare Crane v. Hand, 2 N. J. L. 414; 
 Rogers v. Woodmansee, 3 N. J. L. 954. 
 
 But parties cannot enter into a rule of 
 reference before a justice, by which the 
 justice is himself named as a referee. 
 Drew V. Canady, I Mass. 158; Drew v. 
 Mullikin, 5 N. H. 153. 
 
 Public officers, in their official capacity, 
 may sometimes act as arbitrators, and 
 when so acting their award will be bind- 
 ing. Stewart v. Waldron, 41 Me. 486; 
 Boston, etc., R. Co. v. Western R. Co., 
 14 Gray (Mass.), 253. 
 
 2. Bradstreet v. Erskine, 50 Me. 407; 
 Daggy V. Cronnelly, 20 Ind. 474; How- 
 ard V. Sexton, 4 N. Y. 157. 
 
 3. Ford V. Potts, 6 N. J. L, 388; 
 Combs V. Little, 4 N. J. Eq. 310; s. c, 
 40 Am. Dec. 205, Ruckman v. Ransom, 
 35 N. J. L. 565, Inslee v. Flagg, 2 Dutch. 
 (N. J.) 368, s.^ c, 69 Am. Dec. 580; 
 Bowen v. Lanning, I Pen. (N. J.) 139, 
 Reeves -v. Gaif, i Pen. (N. J.) 143, 
 
 Parker w. Crammer, i Pen. (N. J.) 271; 
 Little V. Silverthorne, 2 Pen. (N. J.) 680; 
 Crammer v. Mathis, 2 Pen. (N. J.) 55P; 
 French v. Moseley, i Litt. (Ky.) 248; Lile 
 V. Barnett, 2 Bibb. (Ky.) 166; Jackson 
 V. Steel, Sneed (Ky.), 2i; Snyder v. 
 Rouse, I Mete. (Ky.) 625; Shryock v. 
 Morton, 2 A. K. Marsh. (Ky.) 563; Over- 
 ton V. Alpha, 13 La Ann. 558; Bethea 
 V. Hood, 9 La. Ann. 88; Frissell v. 
 Fickes, 27 Mo. 557; Toler v. Hayden, iS 
 Mo. 399; Fassett v. Fassett, 41 Mo. 516; 
 Bridgman v. Bridgman, 23 Mo. 272; 
 Vaughn v. Graham, 11 Mo. 575; Walt ». 
 Huse, 38 Mo. 210; Deputy v. Belts, 4 
 Harr. (Del.) 352; Tomlinson v. Ham- 
 mond, 8 Iowa, 40; Ogden v. Forney, 33 
 Iowa, 205. 
 
 4. Woodrow v. O'Connor, 28 Vt. 776; 
 Tucker v. Allen, 47 Mo. 488; Hill v. 
 Taylor, 15 Wis. 190; Pierce v. Kirby, 21 
 Wis. 124; Otis V. Northrop, 2 Miles (Pa.X 
 330; Re Vilmar, 10 Daly (N. Y.), 15 
 Browning ii. Wheeler, 24 Wend. (N. Y.) 
 258; s. c, 35 Am. Dec. 617; Winship v. 
 Jewett, I Barb. Ch. (N. Y.) 173; Sonne- 
 born V. Laverello, 4 Th. & C. (N. Y.) 
 536; Howard v. Sexton, i Den. (N. Y^) 
 440; Day V. Hammond, 57 N. Y. 479; 
 s. c, 15 Am, Rep. 522; People v. McGin- 
 nis, I Park. Cr. Cas. (N. Y.) 387; Whalen 
 V. Albany, 6 How. Pr. (N. Y.) 278; Kel- 
 sey V. Darrow, 22 Hun (N. Y,), 125; 
 Newcomb v. Wood, 97 U. S. 581. 
 
 5. Sloan v. Smith, 3 Cal. 410; Dicker- 
 son v. Hays, 4 Blackf. (Ind.) 44, Daggy 
 V. Cronnelly, 20 Ind. 474; Bradstreet v, 
 Erskine, 50 Me. 407; tlnderwood v, 
 McDuffee, 15 Mich. 361; Kankakee, etc., 
 R. Co. V. Alfred, 3 111. App. 511. 
 
 A waiver of the oath will be implied 
 from the fact that the parties go to trial 
 without requiring that the oath should be 
 administered. Newcomb v. Wood, 7 
 Otto (U. S.), 581; People v. McGinnis, i 
 Park. Cr. Cas. (N. Y.) 387; Winship v, 
 Jewrett, I Barb. Ch. (N. Y.) 173,- Mil- 
 waukee Co. Supervisors v. Ehlers, 45 
 Wis.' 281. 
 
 674 
 
Arbitrators. 
 
 ARBITRATION. 
 
 Powers^ 
 
 9. Power of the Arbitrators. — The power of the arbitrators, when 
 not modified or defined by statutes, is derived entirely from the 
 submission, but every part of the submission, including papers or 
 documents to which it refers, should be taken in consideration 
 to determine their power.^ 
 
 Judges of Law and Facts. — In a general submission, in which 
 matters of law are not excepted, the arbitrators are the sole judges 
 of law and facts, and the courts will not set aside an award rest- 
 ing upon a mistake of law.* 
 
 ' Restricted Power. — The parties may, in their Submission, so re- 
 strict the power of the arbitrator, that, although their award will 
 be final as to matters of fact, it will be open to an investigation 
 by the court if it appears by the award that they have mistaken 
 the law.* 
 
 Waiver. — An arbitrator may either directly or impliedly waive 
 his right to decide matters of law, and give the courts the au- 
 
 1. Boston Water-power Co. v. Gray, 6 
 Mete. (Mass.) 131; Walsh v. Gilmor, 3 
 Har. & J. (Md.) 383. 
 
 And within the scope of the submis- 
 sion the arbitrators have power to decide 
 matters of law and fact. Boston Water- 
 power Co. V. Gray, 6 Mete. (Mass.) 131; 
 Rundell v. La Fleur, 6 Allen (Mass.), 480; 
 Srhi.th V. Boston & Maine R. Co., 16 
 Gray (Mass.), 521; Bigelow v. Newell, 10 
 Pick. (Mass.) 348; White Mountains R. 
 Co. V. Beane, 39 N. H. 107; Johnson v. 
 Noble. 13 N. H. 286; s. c, 38 Am. Dec. 
 485; Kleine v. Catara, 2 Gall. (U. S.) 
 61; Myers v. York, etc., R. Co., 2 Curtis 
 (U. S.), 28; Brown v. Clay, 31 Me. 518; 
 Tyler v. Dyer, 13 Me. 41; Whitmore v. 
 Le Ballistier, 35 Me. 48S; Sweetser v. 
 Kenney. 32 Me. 464: Walker v. San- 
 born. 8 Greenl. (Me.) 288; Indiana Centr. 
 R. Co. V. Bradley, 7 Ind. 49; De Long 
 V. Stanton, 9 Johns. (N. Y.) 38; Bumpass 
 V. Webb, 4. Port. (Ala.) 65; s. c, 29 Am. 
 Dec. 274; Leach v. Harris, 69 N. Car. 
 532. 
 
 2. Spear v. Stacy, 26 Vt. 61; Price v. 
 Brown, 98 N. Y. 388; 'Halstead v. Sea- 
 man, 52 How. Pr. (N. Y.) 415; Mitchell 
 ■u. Bush, 7 Cow. (N. Y.) 185; Jackson v. 
 Ambler, 14 Johns. (N. Y.) 105; 'Campbell 
 V. Western, 3 Paige (N. Y.), 124; Cran- 
 ston V. Kenny, 9 Johns. (N. Y.) 212; King 
 V. Falls of Neuse Mfg. Co. , 79 N. Car. 360 ; 
 Boston Water-power Co. v. Gray, 6 
 Mete. (Mass.) 131; Smith v. Thorndike, 
 8 Greenl. (Me.) 119; Sabin v. Angell, 44 
 Vt. 523; Cutting V. Stone, .23 Vt. 571; 
 Kirten v. Spears. 44 Ark. 166; Ruckman 
 V. Ransom, 23 N. J. Eq. 118; Burchell 
 V. Marsh, 17 How. (U. S.) 344; Adams 
 V. Ringo, 79 Ky. 211; Ewing v. Beau- 
 champ, 3 Bibb. (Ky.) 41; Baker v. 
 
 Crockett, Hardin (Ky.), 388; Memphis, 
 etc., R. Co, V. Scruggs, 50 Miss. 284; 
 Jones V. Boston Mill Corp., 6 Pick, 
 (Mass.) 148, Mathews v. Miller, 25 W. 
 Va. 817; White Mountains R. Co. v^ 
 Beane, 39 N. H. 107; Johnson v. Noble, 
 
 13 N. H. 286; s. c, 38 Am. Dec. 485; 
 Shepardson v. Perkins, 60 N. H. 76. 
 Compare Cushman v. Wooster, 45 N. H. 
 410; Beane v. Wendell, 22 N. H. 582; 
 Greenough v. Rolfe, 4 N. H. 357; Myers. 
 V. York & C. R. Co., 2 Curtis (U. S.),. 
 28. 
 
 In these cases it was held that al- 
 though the arbitrators are the judges of 
 matters of law, this refers only to mat- 
 ters wherein ithey have used their judg- 
 ment in regard to the law. Where they 
 have assumed a point of law without 
 discussion and have erred, the courts will 
 inquire into the matter. Compare also 
 United States v. Farragut, 22 Wall. (U. 
 S.) 406; Smith V. Boston, etc., R. Co., 
 82 Mass. 521. 
 
 3. Johnson v. Noble, 13 N. H. 286; 
 s. c, 38 Am. Dec. 485; Bigelow z/. New- 
 ell, ID Pick. (Mass.) 348; Greenough v. 
 Rolfe, 4 N. H. 357; Mickles v. Thayer, 
 
 14 Allen (Mass.), 114; Com. v. Roxbury, 
 9 Gray (Mass.), 451; Estes v. Mansfield, 
 6 Allen (Mass.), 69; White Mountain R. 
 Co. V. Beane, 39 IJ. H. 107; Kleine w- 
 Catara, 2 Gall. (U. S.) 61; Walker v. 
 Sanborn, 8 Greenl. (Me.) 288; Brown v. 
 Clay, 31 Me. 518; Boston Water power 
 Co. V. Gray, 6 Mete. (Mass.) 131, i66 
 
 And a submission under a statute 
 which requires the court to "approve" 
 the award, gives the court power to in- 
 quire into the decision of the arbitrator 
 as regards matters of law. Allen v. 
 Miles, 4 Harr. (Del.) 234. 
 
 675 
 
ArUtrators. 
 
 ARBITRATION. 
 
 Powers. 
 
 thority to inquire into the correctness of his award. He does so 
 impliedly by giving reasons for his award, from which it can be 
 inferred that he intended to decide according to law. If in such 
 a case he has mistaken the law, the award will be set aside. ^ 
 
 Questions of Pure Law. — Where questions of pure law are sub- 
 mitted the arbitrator's power is unquestioned and his decision 
 final.2 
 
 Matters of Fact are peculiarly within the scope of the authority 
 of the arbitrators under the submission, and their award is a final 
 decision.^ 
 
 Excess of Authority. — An arbitrator cannot legally exceed the 
 power conferred upon him by the submission. Any award given 
 in excess of the authority so conferred upon him will be void.* 
 
 1. Boston Water-power Co. v. Gray, 
 6 Mete. (Mass.) 131; Ward v. American 
 Bank, 7 Mete. (Mass.) 486; Fairchild v. 
 Adams, 11 Cash. (Mass.) 547; Fuller w. 
 Wheelock, 10 Pick. (Mass.) 135; Johnson 
 •». Noble, 13 N. H. 286; S: c, 38 Am. 
 Dec. 485; Cushman v. Wooster, 45 N. H. 
 410; Kleine v. Catara, 2 Gall. (U. S.) 61; 
 United States v. Ames, i Woodb. & M. 
 (U. S.) 76; Leach v. Harris, 6g N. Car. 
 532; Bell V. Price, 22 N. J. L. 578. Corn- 
 fare Smith V. Boston, etc., R. Co., 16 
 Gray (Mass.), 521; Connor v. Simpson, 
 104 Pa. St. 440; Sutton v. Horn, 7 S. & 
 R. (Pa.) 228; Smith v. Thor^dike. 8 
 Greenl. (Me.) iig; Learned v. Bellows, 
 8 Vt. 79; Cutting V. Stone, 23 Vt. 571. 
 
 Where arbitrators so waive their right 
 the waiver must be embodied in the 
 award, or at least be contained in an in- 
 strument so closely connected with it 
 that it properly forms a part of it. Brown 
 -v. Clay, 31 Me. 518; Smith v. Boston, 
 etc., R. Co., 16 Gray (Mass.), 521; Ruck- 
 man V. Ransom, 23 N. J. Eq. 118; Cush- 
 man V. Wooster, 45 N. H. 410; Ward v. 
 Am. Bank. 7 Mete. fMass.) 486; Fu- 
 dickar v. Guardian Mut. Life Ins. Co., 
 45 How. Pr. (N. Y.) 462. 
 
 Where, according to the submission for 
 arbitrators, are chosen men "learned in 
 the law," they are presumed to decide 
 according to law, and if they mistake the 
 law the award may be impeached for mis- 
 take of law. State v. Ward, 9 Heisk. 
 {Tenn.) 100. 
 
 2. Greenough v. Rolfe, 4 N. H. 357; 
 Smith V. Smith, 4 Rand. (Va.) 95; Kleine 
 V. Catara, 2 Gall. (U. S.) 61; Jackson v. 
 Ambler, 14 Johns. (N. Y.) 96; Cranston 
 V. Kenny, 9 Johns. (N. Y.) 212; Camp- 
 bell V. Western, 3 Paige (N. Y.), 124; 
 ForbeS v. Turner, 54 Ga. 252. 
 
 3. Fairchild v. Adams, 11 Cush. 
 (Mass.) 547; Boston Water-power Co. 
 V. Gray, 6 Mete. (Mass.) 131; Weston v. 
 
 Stuart, 2 Fairf. (Me.) 326; Goldsmith v. 
 Tilly, I Harris & J. (Md.) 361; De Long' 
 V. Stanton, g Johns. (N. Y.) 38; Wellborn 
 V. Simonton, 88 N. Car. 266; Bryant v. 
 Fisher, 85 N. Car. 69. 
 
 By an agreement for purchase of loco- 
 motives, the price was to be paid on the 
 certificate of the purchaser's engineer, 
 and "all disputes" were to be referred to 
 arbitration. The engineer refused his 
 certificate. On a reference to arbitration 
 the umpire made an award in favor of 
 the vendors. Held, that the award was 
 intra vires the arbitrator, and whether 
 right or wrong could not be reviewed by 
 the court. Re An Arbitration, 54 L. T. 
 R. 596. 
 
 4. Richardson v. Huggins, 23 N. H. 
 106; Adams v. Adams, 8 N. H. 82; 
 Cook V. Carpenter, 34 Vt. 121; s. c. 80 
 Am. Dec. 670; Howard v. Edgell, 17 Vt. 
 9; Butler v. Mayor of N. Y., 7 Hill (N. 
 Y.), 329; Solomons v. M'Kinstry, 13 
 Johns. (N. Y.) 27; Schuyler v. Vander- 
 veer, 2 Cai. (N. Y.) 235; Brown v. Han- 
 kerson, 33 Cow. (N. Y.) 70; Wright v. 
 Wright, 5 Cow. (N. Y.) 197; Collins ». 
 Freas, 77 Pa. St. 493; Banton v. Gale, 6 
 B. Monr. (Ky.) 260; Smith v. Kincaid, 
 7 Humph. (Tenn^) 28; Reynolds v. Rey- 
 nolds, 15 Ala. 398; Lee v. Onstott, I 
 Ark. 206; Squires v. Anderson. 54 Mo. 
 193; Stevens v. Gray, 2 Harr. (Del.) 347; 
 Fountain v. Harrington, 3 Harr. (Del.) 
 22; Gibson v. Powell, 13 Miss. 712; 
 Sessions v. Barfield, 2 Bay. (S. C) 94; 
 Bean v. Farnam, 6 Pick. (Mass.) 269; 
 Com. v. Pejepscut Proprs., 7 Mass. 399; 
 Huff V. Parker, 4 Dall. (U. S.) 285; Lyle 
 V. Rodgers, 5 Wheat. (U. S.) 394; White 
 V. Arthur, 59 Cal. 33; Austin v. Clark, 8 
 W. Va. 236; Swann v. Deem, 4 W. Va. 
 368; Dunlap V. Campbell, 5 W. Va. 195. 
 Where two persons agreed to submit 
 the question which of the two was 
 primarily liable on an account to a third 
 676 
 
Arbitrators. 
 
 ARBITRA TION. Vower may not be Delegated, 
 
 Presumption. — To avoid an award it must, however, be clearly 
 shown that the arbitrator has exceeded his authority. The pre- 
 sumption of the court will always be that the arbitrator did not 
 exceed it, and the contrary must be proved.^ 
 
 10. May not Delegate their Power.— Arbitrators have no authority 
 to delegate their power, nor to appoint a substitute|for any one of 
 their number who may be unable or unwilling to serve. Even 
 where the submission provides that in such a case " another or 
 others are to be chosen in their place," it was held that the right 
 to choose did not rest in the other arbitrators, but in the parties.* 
 
 party, it" was held that they were not 
 bound by the award as to the items of 
 the account. Blakely v. Frazier, il S. 
 Car. 122. See Re Wallace, 31 La. Ann. 
 
 335- 
 
 1. Myers v. York, etc., R. Co., 2 
 Curtis (U. S.), 28; Hayes v. Forskoll, 31 
 Me. 112; Burns v. Hendrix, 54 Ala. 78; 
 Reynolds v. Reynolds, 15 Ala. 398; 
 Richardson tj. Huggins, 23 N. H. 106; 
 Parsons v. Aldrich, 6 N. H. 264; Blair 
 V. Wallace, 21 Cal. 317; Sparry v. Ricker, 
 4 Allen (Mass.), 17; Hodges z/. Hodges, 9 
 Mass. 320; Strong v. Strong, g Cush. 
 (Mass.) 560; Hubbard v. Firman, 29 111. 
 go; Bush v. Davis, 34 Mich. 190; Cle- 
 ment V. Comstock, 2 Mich. 359; Caton 
 V. McTavish, 10 Gill. & J. (Md.) 192; 
 Byers v. Van Deusen, 5 Wend. (N. Y.) 
 268; Ebert v. Ebert, 5 Md. 353. 
 
 Under a submission of all matters 
 between A and B, the arbitrators ren- 
 dered an award " We find for A, $4000, 
 including the judgment of C and the 
 judgment of B against D." The court 
 held that it was to be presumed that both 
 parties were in some way interested in 
 the judgments so mentioned, and that 
 therefore they were included in the sub- 
 mission and award. Hays v. Miller, 12 
 Ind. 187. 
 
 Even where the submission could not 
 be produced the court held that it must 
 be presumed "that all matters passed 
 upon were matters of difference, and that 
 all matters of difference were passed 
 upon." Lamphire v. Cowan, 3g Vt. 420. 
 
 Under a general submission the arbi- 
 trators are bound to decide only those 
 matters brought to their consideration by 
 the parties. The presumption is that the 
 matters decided by the arbitrators were 
 so brought to their consideration. Shef- 
 field V. Clark, 73 Ga- g2. 
 
 Only the precise matter submitted may 
 be considered by him. He may neither 
 modify the question nor add other con- 
 troversies to it, no matter how cognate 
 to the subject under submission. Wy- 
 man z;. Hammond, 55 Me. 534; Hayes 
 
 6 
 
 V. Forskall, 31 Me. 112; Sawyer «;. Free- 
 man, 35 Me. 542; Culver v. Ashley, 17 
 Pick. (Mass.) 98; Shearer v. Handy, 22 
 Pick. (Mass.) 417; Brown v. Evans, & 
 Allen (Mass.), 333; Gilmore v. Hubbard, 
 12 Cush. (Mass.) 220; Worthen v. Ste- 
 vens, 4 Mass. 448; Cook v. Carpenter, 
 34 Vt. 121; s. c. , 80 Am. Dec. 670; 
 Butler V. Mayor of N. Y., 7 Hill (N. Y.), 
 329; Robinson v. Moore, 17 N. H. 479. 
 
 But where an award gives time for the 
 payment of the principal sum found due, 
 it did not avoid it that the arbitrators 
 also allowed interest from date of award, 
 Noyes v. McLaflin, 62 III. 474. 
 
 Even where by mistake the wrong 
 steer was exhibited to the arbitrators, and 
 the award disposed of the steer in dis- 
 pute, under the mistaken impression that 
 the exhibited steer was the one in ques- 
 tion, the award was void. Cox v. Fay, 
 54 Vt. 446. 
 
 Where it is agreed that a confessed 
 judgment shall be released on payment 
 of such sum as the arbitrator shall find 
 due, his authority is only to determine the 
 amount in money. He has no authority 
 to award that the judgment shall be 
 released on the payment of a certain 
 amount of property at a certain appraise- 
 ment. State V. Jones, 2 Gill (Md.), 49. 
 
 An award may be valid as to the mat- 
 ters, submitted, and void as to matters 
 decided upon by the arbitrators, but not 
 embraced in the submission. Bogan v. 
 Daughdrill, 51 Ala. 312. 
 
 2. Potter V. Sterrett, 24 Pa. St. 411; 
 Russell V. Gray, 6 S. & R. (Pa.) 145; 
 Hicks V. McDonnell, gg Mass. 45g; 
 Brown v. Bellows, 4 Pick. (Mass.) I7g; 
 Hafif V. Blossom, 5 Bosw. (N. Y.) 559. 
 
 They may not delegate their authority 
 to each other. Two merchants, arbitrat- 
 ors, may not delegate to a third, though 
 he be a lawyer, the decision of a point of 
 law arising out of the case. In a case of 
 this kind where the lawyer so decided a 
 point of law and signed the award, which 
 was afterward signed by another of the 
 arbitrators (an award by only two being 
 77 
 
Power may not be Delegated. ARBITRA TION. 
 
 Oath of Witnesses, 
 
 Except Ministerial Acts. — Acts of a purely ministerial character 
 only may as a rule be delegated. Measurement of land by a sur- 
 veyor, and making up accounts by an expert accountant, are of 
 this character.! 
 
 The Oath of Witnesses. — At common law arbitrators have no 
 power to administer an oath to witnesses ; but in most of the 
 States statutes have been passed giving them this power.** 
 
 good), the court set it aside on the ground 
 that there was no principle of law author- 
 izing the two merchants to delegate their 
 power of judging, and that it was impos- 
 sible to say but that if the lawyer had 
 expressed his opinion on the point of law 
 to the others before the award was made 
 the result may have been different. Lit- 
 tle V. Newton, 9 Dowl. 437. 
 
 Neither may they delegate their powers 
 to the court which appomted them, or 
 provide for the settlement of a future tiis- 
 pute by another tribunal. Kingston v. 
 Kincaid, i Wash. (U. S.) 448; Levezey 
 v. Gorgas, 4 Dall. (U. S.) 71; Sutton v. 
 Horn, 7 S. & R. (Pa.) 228. 
 
 But where by an agreement for the 
 sale and purchase of property it was pro- 
 vided that the price should be fixed by 
 two appraisers, who in case of disagree- 
 ment were to select a third, and the two 
 being unable to agree did select the third 
 and agreed with him that he should fix 
 the value and that they would concur in 
 it, but afterward abandoned this agree- 
 ment, and the three met together and ex- 
 amined the property, and two of them 
 agreed on a valuation, it was held that 
 the award was valid, as they had aban- 
 doned the improper agreement. Haff v. 
 Blossom, 5 Bosw. (N. Y.) 559. 
 
 If the arbitrators agree together before- 
 hand without authority from the parties 
 to be bound by the opinion of a third 
 person, and make their award on his 
 opinion without exercising any judg- 
 ment of their own, the award may be set 
 aside on motion. Whitmore v. Smith, 
 31 L. J. Ex. 107. 
 
 They may call in the assistance of ac- 
 countants, appraisers, or other experts, 
 but not leave the decision to such ex- 
 perts. They may use their opinion as 
 evidence and adopt it as their own when 
 they are satisfied of its accuracy. Rus- 
 sell on Arb. 214; Moore v. Barnett, 17 
 Ind. 349; Galloway v. Webb, Hardin 
 (Ky.) 31S; Hopcrafi v. Hickman, 2 Sim. 
 & St. 130; Emery v. Wase, 5 Ves., Jr. 
 846; Caledonian R. Co. v. Lockhart, 3 
 Macq. 808; Sharp v. Nowell, 6 C. B. 
 253; Lingood v. Eade, 2 Atk. 501. 
 
 On a reference to surveyors to settle 
 (the terms of a lease of a mine, it was held 
 
 no objection to the award that one of the 
 surveyors did not go down into the mine, 
 but founded his valuation on the report 
 of a person whom he had sent down into 
 it and upon his own knowledge of the 
 neighborhood. Eads v. Williams, 24 L. 
 J. Ch. 531. 
 
 But where one of the appraisers did 
 not think the mine worth as much as it 
 was valued- at by said person, but con- 
 curred in the award because he thought it 
 was no use differing, the award was held 
 bad. because he had not used a judicial 
 discretion upon the case, as he had not 
 adopted the opinion of the expert, but 
 merely subscribed to what he thought 
 wrong because another person thought it 
 right. Eads v. Williams, 24 L. J. Ch. 
 
 531- 
 
 Where in the submission a special pro- 
 vision is made giving the arbitrator power 
 to call in professional assistance, his 
 power in that respect ceased to be a gen- 
 eral one arising from the necessity of the 
 case, and he must be governed by such 
 provision. Anderson v. Wallace, 3 C. 
 & F. 26. 
 
 An arbitrator may employ legal coun- 
 sel to assist him in framing the award, 
 even the counsel of one of the parties. 
 Moore v. Ewing, Coxe (N. J.) 144; s. c, 
 
 1 Am. Dec. 195; Dobson v. Groves, 6 Q. 
 B. 637; Featherstone v. Cooper, 9 Ves., 
 Jr. 67. 
 
 He may take the advice of counsel or 
 other professional adviser on points of 
 law affecting not only the form but the 
 substance of the award. In re Hare, 6 
 Bing. N. Cas. 158; Goodman v. Sayers, 
 
 2 J. & W. 249. 
 
 1. Thorp V. Cole, 2 C. M. & R. 367; 
 Harvey v. Shelton, 7 Beav. 455. 
 
 But where a cause was referred to a 
 mining agent, objection having been 
 made by the defendant to a legal arbi- 
 trator, and the mining agent called in an 
 attorney to sit with him, and the defend- 
 ant protested in vain against it and re- 
 tired, the award made ex parte was set 
 aside, the court considering the course 
 pursued by the arbitrator objectionable. 
 Proctor V. Williamson, 29 L. J. C. P. 157. 
 
 2. Tobey v. County of Bristol, 3 Story 
 (U. S.), 800; Large v. Passmore, 5 S. & 
 
 678 
 
Oath of Witnesses. 
 
 ARBITRATION. 
 
 Bnling as to Evidence. 
 
 Where the submission requires that the witnesses shall be sworn, 
 and the arbitrator has no authority to administer the oath, he 
 must call in the assistance of an officer who has this power, unless 
 the parties consent to the omission of the oath.* ^ 
 
 P<rwer to Compel the Attendance of Witnesses. — Where the power 
 to compel witnesses to attend or to produce books and documents 
 has not been given by statute the arbitrator has not such 
 power.** 
 
 11. Ruling as to Evidence. — Incident to the power of an arbitrator 
 to decide all questions of fact, he has also the power to decide all 
 questions as to the admission and rejection of evidence, as well as 
 the credit due to evidence and the inferences of fact to be drawn 
 from it.^ 
 
 R. (Pa.) 51; Peoples. Townsend, 5 How. 
 Pr. (N. Y.) 335; In re Wells, i N. Y. 
 Leg. Os. i8g. 
 
 Where an arbitrator at common law, 
 not authorized by statute, administers an 
 oath, the oath will be a mere nullity, and 
 a witness under it cannot legally perjure 
 himself. Bonner v. McPhail, 31 Barb. 
 (N. Y.) 106; Frazer v. Phelps, 3 Sandf. 
 (N. Y.) 741; Large v. Passmore, 5 S. & 
 R. (Pa.) 51; R. V. Hallett, 20 L. J. M. 
 
 C. 197. 
 
 1. Russell on Arb. i8g et seq.; Ridout 
 V. Pye, I B. & P. gi; Bie;gs v. Hansell, 
 16 C. B. 562; Allen v. Francis, 4 D. & 
 L. 607 ; Smith v. Sparrow, 16 L. J. Q. B. 
 139; R. V. Hanks, 3 C. & P. 419; R. v. 
 Newman, i Wils. 7. 
 
 Where the statutes require witnesses to 
 be sworn he is bound to hear them only 
 under oath; an award upon the testimony 
 of an unsworn witness is not binding. 
 Wolfe V. Hyatt, 76 Mo. 156. 
 
 The parties may, however, directly or 
 impliedly, waive the obligation of swear- 
 ing the witnesses. Such waiver will be 
 implied from proceeding without making 
 objections where unsworn witnesses are 
 heard. Russell on Arb. i8g; Maynardz/. 
 Frederick, 7 Cush. (Mass.) 247; Bergh z/. 
 Pfeiffer, Hill & Den. (N. Y.) no; Large 
 V. Passmore, 5 S. & R. (Pa.) 51; New- 
 comb V. Wood, 7 Otto (U. S.), 581; Price 
 V. Perkins, 2 Dev. Eq. (N. Car.) 250. 
 Compare In. re Wells, i N. Y. Leg. Obs. 
 189. 
 
 Where the submission provides that 
 the arbitrator shall be at liberty i£ he 
 thinks fit to examine the parties and 
 their respective witnesses on oath, it is 
 left optional with the arbitrator whether 
 he will examine them on oath or not, 
 although one of the parties require the 
 witnesses to be sworn. Smith v. Goff, 3 
 
 D. & L. 47. 
 
 2. Tobey v. County of Bristol, 3 Story 
 
 (U. S.), 800, Webb V. Taylor, I Dowl. & 
 L. 676. , 
 
 The power of compelling the attend- 
 ance of witnesses gives the proceedings 
 of an arbitrator, even though no action be 
 pending, a judicial character, and protects 
 the parties, the counsel, and the witnesses 
 appearing before him from arrest. Rus- 
 sell on Arb. 189; Morse on Arb. 134; 
 Sanford v. Chase, 3 Cow. (N. Y.) 381; 
 Clark V. Grant, 2 Wend. (N. Y.) 257; 
 People V. Detroit Super. Ct. Judge, 41 
 l^ich. 726. 
 
 3. Boston Water-power Co. v. Gray, 
 6 Mete. (Mass.) 131. 
 
 Whatever the rule may be in England, 
 in the United States he "is not bound by 
 the strict rules of law as to the admission 
 of evidence." "He may even receive 
 the testimony of a legally incompetent 
 witness if in his judgment the justice of 
 the case requires it." Russell on Arb. 
 207; Hooper v. Taylor, 39 Me. 224; 
 Maynard v. Frederick, 7 Cush. (Mass.) 
 246; Fuller V. Wheelock, 10 Pick. (Mass.) 
 135; Eyres v. Fennimore, 2 Penn. (N. J.) 
 932; Fennimore v. Childs, i Halst. (N. J.) 
 386; Campbell v. Western, 3 Paige (N. 
 Y.), 124; Shaifer v. Baker, 38 Ga. 135; 
 Pike V. Gage, 9 Fost. (N. H.)46i; Ches- 
 ley V. Chesley, 10 N. H. 327; McCrae v. 
 Robeson, 2 Murph. (N. Car.) 127; Bas- 
 sett V. Cunningham, 9 Gratt. (Va.) 6S4. 
 
 He may, however, not receive evidence 
 regarding matters which according to law 
 he cannot consider, or which could not 
 be enforced as a demand barred by the 
 statute of limitations. De La Riva v. 
 Berreyesa, 2 Cal. 195; Pearce v. Roller, 
 5 Lea (Tenn.), 48J. 
 
 The improper reception or rejection of 
 evidence by an arbitrator, without any 
 corrupt intent, does not amount to legal 
 misconduct upon which an award will be 
 set aside. The evidence received con- 
 sisted in statements made by the plaintiff 
 
 679 
 
EuKng as to Evidence. ARBITRA TIOJV. Admissibility — Witnesses, 
 
 As Officer of Court. — But where an arbitrator is to be regarded 
 as an officer of the court, and the arbitration is to be conducted 
 upon legal principles, he will generally not be allowed to admit 
 incompetent evidence.^ 
 
 May Leave the Question to the Court. — The arbitrator has a right 
 to leave the question of the admissibility of the evidence to the 
 court. He may decide conditionally upon the decision of the 
 court as regards evidence. So where an interested peirson was 
 allowed to testify against the objection of one of the parties, the 
 arbitrators rendered a verdict for the plaintiff, " on condition that 
 the interested party shall be adjudged by the judges of the 
 supreme court to have been legally admitted to testify. If not, 
 they found for the defendant." The court decided for defend- 
 ant.** 
 
 Witnesses. — The same liberty which an arbitrator has in regard^ 
 to the admission of evidence is extended as to witnesses. Parties 
 who in a court of law could not be admitted to testify are admis- 
 sible before arbitrators, as a witness interested in the result of the ' 
 arbitration.^ 
 
 Should Hear all the Evidence Offered. — The arbitrator should hear 
 all the evidence material to the question which the parties choose 
 to lay before him. It has been said that he may exercise some 
 discretion as to the quantity of evidence he will hear, but declining 
 to receive evidence on any matter is, under ordinary circumstances, 
 a delicate step to take, for the refusal to receive proof where proof 
 is necessary is fatal to the award.* 
 
 ante litem niotam in substance confirraa- for the admission of evidence which 
 
 tory of his evidence before the arbitrator;, could not have been received in a court 
 
 and the rejection consisted in the arbi- of law. Chesley v. Chesley, lo N H. 
 
 trator's refusal to receive parts of the 327; Fuller z/. Wheelock, 10 Pick. (Mass.) 
 
 plaintiff's examination without the whole 135. 
 
 being received. It did not appear that 2. Fuller w. Wheelock, 10 Pick. (Mass,) 
 the arbitrator was influenced by the evi- 135; Hooper v. Taylor, 39 Me. 224; Bar- 
 dence objected to, and he made no re- nard v. Spofford, 31 Me. 39. 
 quest to be allowed to reconsider his 3. Fuller f. Wheelock, 10 Pick. (Mass.) 
 award. Held, that while the evidence 137; HoUingsworth v. Leiper, i Dall. 
 objected to was not strictly admissible, (U. S.) 161; McCrae v. Robeson, 2 
 the award could not be interfered with on Murph. (N. Car.) 127; Askew v. Ken- 
 such ground, when it did not appear to nedy, I Bailey (S, Car.), 46; Maynard z». 
 have occasioned any miscarriage on the Frederick, 7 Cush. (Mass.) 247. Cow- 
 merits. Webster v. Haggart, 9 Ontario pare Eyres v. Fennimore, 2 Penn. (N. J.) 
 Repr. 27. 932; Fennimore z/. Childs, I Halst. (N. J.) 
 
 1. Allen V. Way, 7 Barb. (N. Y.) 585; 386; McAlister v. McAlister, i Wash. 
 
 Burroughs v. Thorne, 5 N. J. L. 777. (Va.) 193. 
 
 If it is evident, however, that his mind Unless the arbitrators are, by the sub- 
 could not possibly have been influenced mission or by their own acknowledg- 
 by such evidence, the admission will not mertt, bound to decide only upon legal 
 be considered sufficient reason to set and competent evidence. Fowler z/. 
 aside the award. .Learned i/. Bellows, 8 Thayer, 4 Cush. (Mass.) Iii; Fuller v. 
 Vt. 79; Spear 0. Myers, 6 Barb. (N. Y.) Wheeloclc, 10 Pick:. (Mass.) 135. 
 445. 4. Russell on Arb. 192; Nickalls v. 
 
 Even when acting under a rule of Warren, 6 Q. B. 615; Johnstone z». 
 
 court, if the arbitrator is to decide ac- Cheape, 5 Dow. 247; Com. v. La Fitte, 
 
 cording to justice rather than according 2 S. & R. (Pa.) 106; Halstead v. Seaman, 
 
 to law, his award will not be set. aside 82 N. Y. 27; Van Cortlandt w. Underbill, 
 
 680 
 
Buling as to Evidence. 
 
 ARBITRATION. 
 
 Beopening the Casa^ 
 
 Reopening the Case. — The arbitrator has the power, to open a 
 case which had been closed to receive new evidence, even after he 
 has drawn up his award, as long as it is not delivered. The use 
 of this power is entirely discretionary with the arbitrator, and the 
 courts will not interfere if he refuses to reopen a case even for 
 apparently good reasons.* 
 
 17 Johns. (N. Y.) 405; Fudickar v. Guar- 
 dian Mut. L. Ins. Co., 62 N. Y. 392; 
 Knowlton v. Mickles, 29 Barb. (N. Y.) 
 470; Morewood v. Jewett, 2 Robt, (N. 
 Y.) 498; Milner v. Noel, 43 Ind. 324. 
 
 So if an arbitrator, to whom an action 
 for not repairing a house has been re- 
 ferred, make his award on a view of the 
 premises, without calling the parties be- 
 fore him, the court will set aside the 
 award; for though the premises may 
 almost tell their own tale, yet there may 
 be other facts which ought to be inquired 
 into, such as payments by the party or 
 excuses for not repairing. Anon., 2 
 Chitt. Rep. 44; Braddick v. Thompson, 
 8 East. 344; Moran v. Bogart, 16 Abb. 
 Pr. N. S. (N. Y.) 303. See West Jersey 
 R. Co. V. Thomas, 23 N. J. Eq. 431; 
 Dreyfous v. Hart, 3Q La. Ann. 929. 
 
 Still less can an award stand where the 
 arbitrator hears one side only. An arbi- 
 tration case arose out of a dispute as to 
 whether a phaeton had been built accord- 
 ing to contract. A coach-builder was 
 nominated sole arbitrator. He viewed 
 the phaeton and took evidence of the 
 defendant's witnesses, and was so confi- 
 dent in his ~'hasty consideration of the 
 circumstances that he refused to hear 
 what the plaintiff and his witnesses had 
 got to say, and made an award forthwith 
 for the defendant. It was afterwards 
 decided that his award was in vain, upon 
 the ground that he ought to have taken 
 the evidence for the plaintiff, however 
 little he thought that it would make him 
 alter his opinion. Phlpps v. Ingram, 3 
 Dowl. 669; Oswald v. Lord Grey, 24 L. 
 J. Q. B. 69; Broddick tj. Thompson, 8 
 East. 344. 
 
 The lessee of a mill site had during the 
 term of the lease erected buildings, a 
 mill-dam, a race-way, etc., which, accord- 
 ing to the terms of the lease, were to be 
 turned over to the owners of the site at 
 the end of the term, at a value to be as- 
 certained by arbitration. The arbitrators 
 refused to receive evidence about the cost 
 of building the improvements twenty-one 
 years ago. Held, that the evidence was 
 improperly excluded. Van Cortlandt u. 
 Underbill, 17 Johns. (N. Y.) 405. 
 
 The arbitrator has, under some cir- 
 cumstances, power to limit the number 
 of witnesses introduced. So where the 
 
 question was as to the genuineness of 
 the indorsement of a check, and the ar- 
 bitrator restricted the number of wit- 
 nesses on each side to twenty, his action, 
 was upheld. Sizer v. Burt, 4 Denio (N. 
 Y.), 426. 
 
 The arbitrator should give the parties 
 full opportunity to bring In all the evi- 
 dence they wish to present. He should 
 be careful not to mislead the parties into 
 a supposition that the case is still open, 
 and then unexpectedly make the award 
 without calling them or giving notice that 
 he shall not examine them ; or if, after 
 declaring that he can take no further pro- 
 ceedings in the matter till some books of 
 account have been examined, and he 
 make his award without giving notice to 
 the parties that h£ has found the inspec- 
 tion of the books unnecessary, the award 
 will be set aside. Earle v. Stocker, 2 
 Vern. 251; Pepper v. Gorham, 4 Moore, 
 148. 
 
 Even where a party causes some need- 
 less delay, the arbitrator has no right to- 
 close the case without giving him due 
 notice. Doddington v. Hudson, i Bing. 
 384; Gladwin v. Chilcote, 9 Dowl. 550; 
 Bedington v. Southall, 4 Price, 232; 
 Haigh V. Haigh, 31 L. J. Ch. 420; Fryer 
 V. Shaw, 27 L. J. Ex. 320. 
 
 But where the submission recited that 
 the arbitrator had been appointed on ac- 
 count of his skill and knowledge of the 
 subject. It wasjield that he properly could 
 refuse to hear evidence and depend only 
 on his own knowledge and skill. Wib- 
 erly v. Matthews, 91 N. Y. 648; John- 
 stone V. Cheape, 5 Dow. 247; Eads w. 
 Williams, 24 L. J. Ch. 531; Caledonian 
 R. Co. V. Lockhart, 3 Mack. 808; Bot- 
 tomley v. Amber, 38 L. T. N. S. 545. 
 
 On a reference of a claim for builder's 
 work done to a house, it is within the 
 discretion of the arbitrator to determine 
 whether he will comply with the request 
 of one of the parties that he should view 
 the premises. Muaday v. Black, 9 C. B. 
 N, S. 557. 
 
 1. Russell on Arb. 196; Williams ?'. 
 Hayes, 20 N. Y. 58; Cooper v. Stinson, 
 5 Minn. 201; Dugnia v. Ogilvie, 32 E. 
 D. Smith (N. Y.). 527; Cleaveland v. 
 Hunter, t Wend. (N. Y.) 104; Spear v. 
 Myers, 6 Barb. (N. Y.) 445; Delafield v. 
 De Grauw, 9 Bosw. (N. Y.) i; Pearson v^ 
 
 681 
 
rSnling as to Evidence. ARBITRA TION. Arbitrator controls Proceedings. 
 
 Evidence de bene esse. — Against the objection of a party evidence 
 cannot be received conditionally, the arbitrator reserving the right 
 to disregard it in making up his award ; neither can he receive it 
 -absolutely and afterwards throw it out. The objecting party 
 must, however, make his objections known before the closing of 
 the case.^ 
 
 11. He Controls the Proceedings. — The mode in which the reference 
 is to be conducted depends entirely upon the arbitrator. The 
 courts will not review his discretion provided he acts within his 
 authority according to the principles of justice and behaves fairly 
 toward each party.'-* 
 
 Adjournments. — The arbitrators also have the power to adjourn 
 the proceedings from time to time as they see fit. They may ad- 
 journ for a reasonable time at the request of either one of the par- 
 ties, or on their own motion without the consent of the parties or 
 •either one of them. But the courts may inquire into the matter 
 for the purpose of seeing that the power is not used oppressively, 
 and that no unreasonable delay takes place. ^ 
 
 Fiske, 2 Hilt. (N. Y.) 146; Tennant v. 
 Divine, 24 W. Va. 387; Sweeney v. Vau- 
 ■dry, 2 Mo. App. 352. 
 
 1. Peck -v. York, 47 Barb. (N. Y.) 131; 
 Patten v. Hiinnewell, 8 Greenl. (Me.) ig; 
 Brooks V. Christopher, 5 Duer (N. Y.), 
 216; Allen V. Way, 7 Barb. (N. Y.) 585; 
 Clussman v. Merkel, 3 Bosw. (N. Y.) 
 402. 
 
 2. Russell on Arb. 176; Morse on 
 Arb. 115. 
 
 An award has been sustained notwith- 
 standing the arbitrators had omitted to 
 keep a record of their proceedings in the 
 manner directed by the submission. 
 Sweeney v. Vaudry, 2 Mo. App. 352. 
 
 He has the right to name the time and 
 place of the hearing if nothing in the sub- 
 mission indicates a contrary intention of 
 the parties. Bray v. English, I Conn. 
 ,498; Fetherstonew. Cooper, 9 Ves., Jr. 67. 
 
 And he may revoke the appointment 
 he has given if he shall think fit. Where 
 for any reason one of the parties should 
 request him to do so, it will be in the arbi- 
 trator's discretion either to refuse the re- 
 quest or to rescind his appointment and 
 to name another day. Russell on Arb. 
 I 177; Eastham v. Tyler, 2 Bail. Ct. Rep. 
 136. 
 
 In case of continued absence of one of 
 the parlies he may for good cause pro- 
 xeed to hear the case ex parte. Russell 
 on Arb. 205; Morse on Arb. 121; Kyd on 
 Aw. 100; Bray v. English, i Conn. 498; 
 Brown v. Leavitt, 26 Me. 251; Wood v. 
 Leake, 12 Ves. 412. 
 
 If he has sufficient reason to believe 
 that a party absents himself with the 
 wiew to defeat the object of the refer- 
 
 ence and prevent justice, it is his duty to 
 give the absenting party peremptory 
 notice of his intention to proceed at a 
 specified time and place, and to proceed 
 at that time ex parte if the party fails 
 to appear or does not give a satisfactory 
 excuse. Russell on Arb. 205; Morse 
 on Arb. 122; Waller v. King. 9 Mod. 63; 
 Wood V Leake, 12 Ves. 412; Hall v. 
 Anderton, 8 Dowl. 326; Gladwin v. Chil- 
 cote, 9 Dowl. 550; Scott v. Van Sandan, 
 6 Q. B. 237; Doddington v. Hudson, I 
 Bing. 384. 
 
 An arbitrator may properly afid con- 
 veniently take the examination of a sick 
 or infirm person at that pt-rson's own 
 residence. Tillam v. Copp, 3 C B. 211. 
 
 3. Exp. Rutte, 3 Hill (N. Y.), 464; Son- 
 neborn v. Laverello, 4 Th & C. (N. Y.) 
 536; Brown v. Leavitt, 26 Me. 251; Bray 
 V. English. I Conn. 498; Bixby v. Whit- 
 ney, II Me. 62; Richardson v. Harts- 
 field, 27 Ga. 528; Langlcy v. Hickman, i 
 Sandf. (N. Y.)68r. 
 
 So where the question of alimony in a 
 divorce suit was referred, and the arbitra- 
 tor adjourned the proceedings against 
 the objection of the wife from the latter 
 part of June to the middle of Ociober to 
 enable defendant's counsel to make a trip 
 to Europe, the delay to the plaintiff was 
 held unreasonable. The court decided 
 that unless the order of adjournment was 
 vacated the arbitrator would be removed. 
 Forrest v. Forrest, 3 Bosw. (N. Y.) 650. 
 
 Upon a reasonable request by pne of 
 the parties for an adjournment the arbi- 
 trator may be bound to grant the request. 
 But the parties must show good cause for 
 the adjournment, as where they are sur- 
 
 683 
 
Ruling as to Evidence. ARBITRA TION. Arbitrators must Act together. 
 
 Counsel. — It seems that all arbitrators have discretionary power 
 to hear or to decline hearing counsel of the parties; but in many- 
 cases they would be wrong if they refused the party the privilege 
 of appearing by counsel.*^ 
 
 12. Arbitrators must Act together. — Unless the submission pro- 
 vides differently, each one of the arbitrators must act personally 
 in the performance of the duties of his office as if he were sole arbi- 
 trator ; for as the ofifice is joint, if one refuse or omit to act the 
 others can make no valid award.* 
 
 prised by unexpected evidence and want 
 time to procure witnesses or evidence in 
 defence. Passmore v. Pettit, 4 Dall. 
 (U. S.) 271; Forbes v. Frary, 2 Johns. 
 Cas. (N. Y.) 224; Coryell v. Coryell, i 
 N. J. L. 385; Madison Ins. Co. v. Griffin, 
 3 Ind. 277; Latimer v. Ridge, i Binn. 
 (Pa.) 458; Rickards v. Patterson, 5 Harr. 
 (Del ) 235; Deputy v. Betts, 4 Harr. (Del.) 
 352; Packer v. French, Hill & Den. 
 (N. Y.) 103; Woodworth v. Van Buskirk, 
 I Johns. Ch. (N. Y.) 432. 
 
 In one case the court upon motion 
 ordered an adjournment of the proceed- 
 ings before a referee to enable an impor- 
 tant witness, who was absent from the 
 St^te, to return. Sudam v. Swart, 20 
 Johns. (N. Y.) 477. 
 
 And where the arbitrator adjourned 
 against the protest of one of the parties 
 to hear further argument for the other 
 party, although it was agreed that, the 
 case should be deemed closed on a previ- 
 ous day, it was held to be suoh an excess 
 pf their power that it avoided the award. 
 Cole V. Blunt, 2 Bosw. (N. Y.) 116. 
 
 Unless all are present, arbitrators can- 
 not adjourn to a future day; but where all 
 do not attend, they may appoint another 
 session within a reasonable time, unless 
 their authority is expressly revoked or 
 they are prohibited by the terms of the 
 submission. Jackson v. Ives, 22 Wend. 
 (N. Y.) 637; Harris v. Norton, 7 Wend. 
 (N. Y.) 534; Harrington v. Rich, 6 Vt. 
 666. 
 
 1. Russell on Arb. 178. See Blodgett 
 V. Prince, log Mass. 44. 
 
 So where an arbitrator had excluded 
 from some of the meetings the son of one 
 of the parties who was conversant with 
 the accounts of the partnership, which 
 were in dispute, and also a short-hand 
 writer, the attendance of both of whom 
 the party wished to have, his award was 
 set aside. Haigh v. Haigh, 31 L. J. Ch. 
 420. 
 
 But an arbitrator in a farming case who 
 refused to allow a stranger skilled in agri- 
 culture to remain in the room to assist 
 the defendant's attorney in his conduct of 
 
 683 
 
 the case, was held not to have exceeded 
 the discretion vested in him by law. Til- 
 lain V. Copp, 3 C. B. 211. 
 
 2. Russell on Arb. 222. 
 
 English and American authorities are 
 alike agreed upon this. All must be pres- 
 ent throughout each and every meeting, 
 equally whether the meeting be for hear- 
 ing the evidence or arguments of the 
 parties or for consultation or determina- 
 tion upon the award. The disputants are 
 entitled to the exercise of the judgment 
 and discretion, and to the benefits of the 
 views, arguments, and influence, of each 
 one of the persons whom they have chosen 
 to judge between them; and they are en- 
 titled to these, not only in the award, but 
 at every stage of the arbitration, even 
 where a majority are empowered to de- 
 cide. Morse on Arb. 151; Smith z/ Smith, 
 28 111. 56; Bannister v. Read, 6 III. 92; 
 Thompson v. Mitchell, 35 Me. 281; Cum- 
 berland v. North Yarmouth, 4 Greenl. 
 (Me.) 459; Baker v. Farmbrough, 43 Ind. 
 240; Brower v. Kingsley^ i Johns. Cas. 
 (N. Y.) 334; Mclnroy v. Benedict, 11 
 Johns. (N. Y.) 402; Ackley v. Finch, 7 
 Cow. (N. Y.) 290; Harris v, Norton, 7 
 Wend. (N. Y.) 534; Green v. Miller, 6 
 Johns. (N. Y.) 39; s. t., 5 Am. Dec. 184; 
 Cope V. Gilbert, 4 Den. (N. Y.) 347; Peo- 
 ple V. Walker, 23 Barb. (N. Y.) 304; Exp. 
 Rogers, 7 Cow. (N. Y.) 526; Baitey v. 
 Button, 13 Johns. (N. Y.) 187; Bulson v. 
 Lohnes, 2g N. Y. 2gi; Howard v. Conro, 
 2 Vt. 492; Blin u. Hay, 2 Tyler (Vt.), 304; 
 s, «.., 4 Am. Dec. 738; Hoff v. Taylor, 2 
 South. (N. J.) 829; Hills V. Home Ins. 
 Co., 129 Mass. 345; Franklin Mining Co. 
 V. Pratt, loi Mass. 359; Carpenter v. 
 Wood, I Mete. (Mass.) 409; Short v. 
 Pratt, 6 Mass. 496; Walker v. Melcher, 
 14 Mass. 148; Maynard v. Frederick, 7 
 Cush. (Mass.) 247; Henderson v. Buck- 
 ley, 14 B. Mon. (Ky.) 236; Tuscaloosa 
 Bridge Co. v. Jemison, 33 Ala. 476; Mc- 
 Crary v. Harrison, 36 Ala. 577; Norfleet 
 V. Southall, 3 Murph. (N. Car.) 189; Har- 
 ryman v. Harryman, 43.Md. 140; Hobson 
 V. Mc.^rthur, 41 U. S. 182; Kingston v. 
 Kincaid, i Wash. (U. S.) 448. Compart 
 
Arbitrators must Act together, ARBITRA l^ION. Private and Public Matters. 
 
 Private and Public Matters. — Where private matters are sub- 
 mitted to a common-law arbitration, all the arbitrators must unite 
 in the award, unless the submission authorizes a majority award 
 The rule is different in regard to public matters.^ 
 
 Glass-Pendery, etc., Mining Co. v. Meyer 
 Mining Co., 7 Colo. 51. 
 
 This principle was applied in a case 
 where the arbitrators jointly decided upon 
 an award and had it drawn up by a coun- 
 sellor, after which it was carried to them 
 separately and executed at their own 
 places of evidence. Moore v. Ewing, 
 Coxe (N. J.), 144; B. c, I Am. Dec. 195. 
 Compare Maynard v. Frederick, 7 Cush. 
 (Mass.) 247;, Blodgettj'. Prince, 109 Mass. 
 44; Sperry v. Ricker, 4 Allen (Mass.), 17 
 
 An award by three arbitrators, signed 
 by two of them in the presence of each 
 other, but in the absence of the third, and 
 by the third in the presence of one of the 
 others at a different time and place, was 
 set aside. French v. Butler, 39 Mich. 79. 
 
 Admissions; by a party to one of the 
 arbitrators in the absence of the other 
 arbitrators, aiid communicated by him to 
 the others, cannot be taken in considera- 
 tion. Banton v. Gale, 6 B. Mon. (Ky.) 
 260. '■> 
 
 But objections to the absence of one of 
 the arbitrators at one of the meetings 
 must be made at the time. Akridge v. 
 Patillo, 44 Ga. 585. 
 
 1. Green v. Miller, 6 Johns. (N. Y.) 39; 
 s. c, 5 Am. Dec. 184; Jackson v. Gager, 
 5 Cow. (N. Y.) 383; Schultz V. Halsey, 3 
 Sandf. (N. Y.) 405; Patterson v. Leavitt, 
 4 Conn. 50; s. c, , 10 Am. Dec. 98; Towne 
 V. Jaquith, 6 Mass. 46; s. c, 4 Am. Dec. 
 84; Richards v. Holt, 61 Iowa, 529; 
 Hoffman v. Hoffman, 26 N. J. L. 175; 
 French v. Butler, 39 Mich. 79; Eames v. 
 Eames, 41 N. H. 177; Russell v. Gray, 6 
 S. &R. (Pa.) 145; Smith v. Walden, 26 
 Ga. 249; Jeffersonville R. Co. v. Mounts, 
 7 Ind. 669; Memphis, etc., R. Co. v. 
 Pillow, 9 -Heisk. (Tenn.) 248. Compare 
 Phippen v. Stickney, 3 Mete. (Mass.) 384; 
 Gas Co. V. Wheeling, 8 W. Va. 321; Kile 
 V. Chapin, g Ind. 150; Spencer z/, Curtis, 
 57 Ind. 221. 
 
 Although in public matters a major- 
 ity may make the award, still the rule 
 holds good that all must act together and 
 takepart in the proceedings and consult. 
 People V. Coghill, 47 Cal. 361; Downing 
 V. Rugar, 21 Wend. (N. Y.) 178; Lee v. 
 Parry, 4 Denio (N. Y.), 125; Keeler v. 
 Frost, 22 Barb. (N. Y.) 200; Horton v. 
 Garrison, 23 Barb. (N. Y.) 176; Stewart 
 V. Wallis, 30 Barb. (N. Y.) 344; Crocker 
 V. Crane, 21 Wend. (N. Y.) 2ii; Ex p. 
 Rogers, 7 Cow. (N. Y.) 526; Sinclair v. 
 
 Jackson, 8 Cow. (N. Y.) 543; People v. 
 Walker, 23 Barb. (N. Y.) 304; Eames v. 
 Eames, 41 N. H. 177; Young v. Buck- 
 ingham, 5 Ohio, 485. 
 
 Where under a statute the arbitrators 
 must all unite in the award, a majority 
 award will not be valid. Bowen v. Laz- 
 alere, 44 Mo. 383; 'Shores v. Bowen, 44 
 Mo. 396; Lorenzo a. Deery, 26 Hun 
 (N. Y.), 447. Compare '&ii.TsXonv. Howard, 
 38 Ind. 109. 
 
 Where a processioner and five free- 
 holders were proceeding to establish dis- 
 puted lines, when the parties agreed that 
 the freeholders be constituted arbitrators 
 to settle the dispute in all things, their 
 award to be final, and entered as the 
 judgment of the court, and three of the 
 freeholders signed and filed a paper di- 
 viding the disputed lands and the costs 
 between the parfies, it was held that it 
 could not be enforced as an award, only 
 three of the arbitrators having concurred 
 in it. ' Where a reference is made to sev- 
 eral persons, the agreement of all is nec- 
 essary to an, award, unless it is expressly 
 agreed that a majority may make it. 
 Oakley v. Anderson, 93 N. Car. 108. 
 
 Three arbitrators on the close of the 
 evidence agreed on their finding, and a 
 minute thereof was made in writing by 
 one of them but not signed, and it was 
 understood that nothing further was to 
 be done but have a formal award drawn 
 up and executed. Next day the award 
 was drawn up and executed by two of 
 the arbitrators in the presence of each 
 other, but in the absence of the third ar- 
 bitrator, who a couple of days afterwards 
 executed it in the presence of one of the 
 other arbitrators. In an action of such 
 award, held, that the award should have 
 been executed by the three arbitrators 
 together, and that it was invalid. Nott 
 V. Nott, 5 Ontario C. P. 283. 
 
 Where, under a submission to three 
 with power to two to make an award, 
 one of the arbitrators is duly notified of 
 the meetings of the others, and refuses to 
 attend or to take part in the proceedings, 
 the others may proceed, and their award 
 will be valid. Kyd on Aw. io6, 107; 
 Crofoot V. Allen, 2 Wend. (N. Y.) 494; 
 Green v. Miller, 6 Johns. (N. Y.)39; s.c, 
 5 Am. Dec. 184; Schultz v. Halsey, 3 
 Sandf. (N. Y.) 405'; Bulson v. Lohones. 
 2g N. Y. 291; Kingston v. Kincaid, i 
 Wash. (U. S.)448; Kunckle v. Kunckle, 
 
 684 
 
Hearing of Parties. 
 
 ARBITRATION. 
 
 N'otice. 
 
 Need not Agree upon every Question. — It is not necessary, how- 
 ever, that the arbitrators should agree upon every question brought 
 before them. If they agree upon the final award it will be sufiR- 
 cient.i 
 
 13. Arbitrators must Hear the Parties in Presence of Each Other. — It 
 is imperative that the arbitrators should hear the parties in each 
 other's presence. Any ex-parte testimony received by them will 
 invalidate the award. Hearing one party even before accepting 
 the office and expressing a conclusive opinion is sufficient.* 
 
 Notice of Hearing. — As either party has the right to be present 
 at the examination of the other party and his witnesses, it follows 
 that the arbitrator is bound to give both the parties due and 
 timely notice of the time and place of the hearings. Any hearing 
 of one party without such notice to the other will be illegal, and an 
 award based on it void.^ 
 
 I Dall. (U. S.) 364; Cumberland v. North 
 Yarmouth, 4 Greenl. (Me.) 459; Carpen- 
 ter w. Wood, I Mete. (Mass.) 409; Short 
 V. Pratt, 6 Mass 496; Walker v. Melcher, 
 14 Mass. 148; Dodge v. Brennan, 59 N. 
 H. 138. See King v. Grey, 31 Tex. 22. 
 
 If one of the arbitrators dissents from 
 the decision of the others, he must, in 
 order to defeat the award, express this 
 dissent tefore the award is made. If he 
 unites with the- others in making it, he 
 cannot afterward be heard to prove that 
 he did not assent to the decision. Jack- 
 son V. Gager, 5 Cow. (N. Y.) 383; Camp- 
 bell V. Western, 3 Paige (N. Y.), 124. 
 
 A party who objects to the award be- 
 cause it is not signed by all the arbitra- 
 tors must do so at the time when the re- 
 port is confirmed and judgment entered. 
 It will be too late to raise the question 
 afterward. The objection will then be 
 considered to have been waived. New- 
 comb w. Wood, 7 Otto (U. S.), 581; 
 Sweeney v. Vaudry, 2 Mo. App. 352. 
 
 1. Campbell v. Western, 3 Paige (N. 
 Y.), 124; Jackson v. Gager, 5C0W. (N.Y.) 
 383; Bean v. Wendell, 22 N. H. 582. 
 
 Although arbitrators must use their 
 own judgment in making the award, it is 
 immaterial what means they use to come 
 to an agreement. So where the arbi- 
 trators awarded a sum the exact mean 
 between the sums named by several wit- 
 nesses, the court assumed that the arbi- 
 trators had used their own judgment and 
 were convinced that their award was 
 right. Brown v. Bellows, 4 Pick. (Mass.) 
 179; Bean v. Wendell, 22 N. H. 582, 
 Campbell v. Western, 3 Paige (N. Y.), 
 124. 
 
 2. Conrad v. Massasoit Ins. Co., 4 Al- 
 len (Mass.), 20; Sisk v. Garey, 27 Md. 
 401; Sullivan v. Frink, 3 Iowa, 66; Her- 
 rick V. Blair, i Johns. Ch. (N. Y.) loi; 
 
 Clelland v. Hedlev, 5 R. I. 163; Hol- 
 lingsworth v. Leiper, i Dall. (U.S.) 161; 
 Hagner v. Musgrove, i Dall.. (U. S.) 83; 
 Chaplin V. Kirwan, i Dall. (U. S.) 187. 
 
 Receiving evidence, as affidavits, ac- 
 counts, or other documents, of one party 
 without the knowledge of the other, will 
 avoid the award. Cameron v. Castle- 
 berry, 29 Ga. 495; Passmore v. Pettit, 4 
 Dall. (U. S.) 271; Bassett v. Harkness, 
 9 N. H. 164; Jenkins v. Liston, 13 Gratt. 
 (Va.) 535; Clelland v. Hedley, 5 R. I. 
 163; Emery v. Owings, 7 Gill. (Md.) 488; 
 s. c. , 48 Am. Dec. 580; Republic Bank 
 V. Darragh, 30 Hun (N. Y.), 29. 
 
 But where one of the arbitrators re- 
 ceived from one of the parties a letter as 
 to the merit of the case after they had 
 come to a decision but before the award 
 was drawn up and signed, held-aox. to in- 
 validate the award. Johnson v. Holy- 
 oke, etc., Co., 107 Mass. 472. 
 
 In order to decide whether they will 
 accept the office or not, they have, before 
 accepting, the right to inquire into the 
 nature of the subject-matter which they 
 are to consider. Campbell v. Western, 
 
 3 Paige (N. Y.), 124. 
 
 3. Lutz V. Linthicum, 8 Pet. (U. S.) 
 178; Linde v. Republic F. Ins. Co. , 50 
 N.Y. Super. Ct. 362; Elmendorf v. Har- 
 ris, 23 Wend. (N. Y.) 628; s. c, 35 Am. 
 Dec. 587; Peters v. Newkirk, 6 Cow. (N. 
 Y.) 103; Morewood v. Jewett, 2 Robt. 
 (N. Y.) 496; Jordan v. Hyatt, 3 Barb. (N. 
 Y.) 275; Collins V. Vanderbilt, 8 Bosw. 
 (N. Y.) 313; Knowlton v. Mickles, 29 
 Barb. (N, Y.) 465; Young v. Reynolds, 
 
 4 Md. 375; Bullitt V. Musgrave, 3 Gill 
 (Md.), 31; Rigden v. Martin, 6 Harr. & 
 J. (Md.) 403; Wilson v. Boor, 40 'Md. 
 483; Bushey v. Culler, 26 Md. 534; Mc- 
 Kinney v. Page, 32 Me. 513; Brown v. 
 Leavitt, 26 Me. 251; Webber v. Ives, I 
 
 685 
 
Hearing of FartieB. 
 
 ARBITRATION. 
 
 Compensation, 
 
 Of what Meetings Notice must be Given. — Notice need be given 
 only of those meetings at which evidence is to be received. 
 Where a meeting was held solely to view the premises, but where 
 the arbitrators made various inquiries of persons present and only 
 one party attended, it was held that due notice of such a meeting 
 ought to have been given.'- 
 
 Waiver of Notice. — The want of notice of the time and place of 
 meeting of the arbitrat»ors is no objection to their award if the 
 party appeared and was heard before them.'-* 
 
 14. Compensation. — When Entitled to. — Arbitrators are, however, 
 not entitled to compensation before they are organized unless they 
 are prevented from organizing by the parties or one of them.^ 
 
 Tyler (Vt.), 441 ; Hills v. Home Ins. Co., 
 I2q Mass. 345; Conrad v. Massasoit Ins. 
 Co., 4 Allen (Mass.), 20; Crowell w.Davis, 
 12 Mete. (Mass.) 293; Lincoln v Taun- 
 ton Copper Mfg. Co., 8 Cush. (Mass.) 
 415; Ranney v. Edwards. 17 Conn. 309; 
 Upshaw V. Hargrove, 14 Miss. 286; Dor- 
 moy V. Knower, 55 Iowa, 722; McCor- 
 mick V. Blaclcford. 4 Gratt. (Va.) 133; 
 Shinnie v. Coil, I McCord Ch. (S. Car ) 
 47S; Armstrong v. United States, i Ct. 
 of CI. 22; Dreyfous v. Hart, 36 La. Ann. 
 929; Curtis V. Sacramento, 64 Cal. 102. 
 
 Where articles of submission contained 
 a stipulation that "the arbitrator shall col- 
 lect all the evidence he can and show it 
 to the parties before he decides, and 
 then either party may add what he can, 
 and he shall then decide the whole mat- 
 ter in controversy," and the arbitrator 
 did not show the collected evidence and 
 gave the parties no opportunity to be 
 heard, the award was held to be void. 
 GooHall V. Cooley, 2g N. H. 48. 
 
 What is a reasonable notice must be 
 left to the discretion of the arbitrators. 
 Elmendorf v. Harris, 23 Wend. (N. Y.) 
 628; s. c, 35 Am. Dec. 587. 
 
 1. Knowlton V. Mickles, 29 Barb. (N. 
 Y.) 465; Wood V. Helme, 14 R. I. 325. 
 
 But of meetings appointed for the pur- 
 pose of consultation by the arbitrators 
 about the award, or of drafting and sign- 
 ing the award, and where 'no evidence is 
 received, no notice need be given. Rolo- 
 son V. Carson, 8 Md. 208; Miller v. Ken- 
 nedy, 3 Rand. (Va.) 2; Ormsby v. Bake- 
 well, 7 Ohio,' Part I. 98; Zell v. Johns- 
 ton, 76 N. Car. 302. 
 
 An award will not be set aside because 
 the arbitrator went, after the hearing, 
 alone to take another view of the prem- 
 ises. Adams v. Bushey, 60 N. H. 290. 
 And see Straw v. Truesdale, 59 N. H. 
 109. 
 
 The obligation to give notice of meet- 
 ings l^as only reference to the parties di- 
 rectly. No such notice need to be given 
 
 to sureties under a submission. Farmer 
 V. Stewart, 2 N. H. 97; Binsse v. Wood, 
 47 Barb. (N. Y.) 624. 
 
 A notice to the party's attorney is no- 
 tice to the party. Morse on Arb. 119; 
 Shibe V. Rex, i Browne (Pa.), 174. Com- 
 pare Rivers z-.Walker, i Dall. (U. S.) 81. 
 ..2. Pike V. Stallings, 71 Ga. 860; Dick- 
 erson v. Hays, 4 Blackf. (Ind.) 44; 
 Shockey v. Glassford, 6 Dana (Ky.), 9; 
 Newton v. West, 3 Mete. (Ky.) 24; Ma- 
 dison Ins. Co. u. GrifEn, 3 Ind. 277; Van 
 Kirk V. MKee, 9 Pa. St. 100; Duck- 
 Worth V. Diggles, 139 Mass. 51. 
 
 And where a party to' the arbitration 
 being present at .a hearing did not then 
 object to a want of notice to another 
 party interested in the matter, he could 
 not after award rendered be heard to im- 
 peach the award on that ground. Plumer 
 V. Wausau Boom Co.. 49 Wis. 449; 
 Hubbard v, Hubbard, 61 111. 228. And 
 see White v. Robinson, 60 III. 499. 
 
 A party to an arbitration' upon receiv- 
 ing notice of time and place of the meet- 
 ing of the arbitrators for a hearing an- 
 swered that it was not convenient for 
 him to attend at that time, and offered to 
 state his side of the question. He then 
 stated his case, concluding with the 
 words, " You are to decide." Held to be 
 a waiver of the right to a further hearing. 
 Page -v. Ranstead, 10 Allen (Mass.).295. 
 See also Billings v. Billings, no Mass. 
 225. 
 
 3. Baker v. Hunter, i Miles (Pa.), 357. 
 
 They are entitled to pay for every day 
 they were necessarily employed in the 
 case, including the time of deliberation. 
 Hassinger v. Diver, 2 Miles (Pa.), 411; 
 Re Clark, 36 Hun (N. Y.), 301. 
 
 An arbitrator who has rendered some 
 services contemplated by the submission 
 will not necessarily be defeated of all 
 right to compensation by reason of a 
 failure to render all services expected 
 from him; but he will be entitled to a 
 reasonable compensation for all services 
 
 686 
 
Compensation. 
 
 ARBITRATION. 
 
 Costa^ 
 
 Costs. — It was formerly held that arbitrators under a common- 
 law submission have no power to award the costs of the arbitra- 
 tion unless given by the terms of the submission, because they 
 are something that had arisen since the time of the submission,^ 
 and in some States this view is yet held,'-* although it may be 
 different in these States under a statutory submission.^ In other 
 States it is now held that the power of awarding the cost of the 
 arbitration is necessarily incident to the authority contained in 
 the general submission of the matters in dispute.* 
 
 actually rendered. Goodall v. Cooley, 
 29 N. H. 48. 
 
 Where arbitrators tried two cases iden- 
 tical as to the subject-matter, and where 
 it required no more time to investigate 
 both cases together than it would have 
 required to investigate one, they were 
 held to be entitled to fees as for only one 
 of the cases. Butcher v. Scott, i Pa. L. 
 J. Rep. 311. 
 
 1. Kyd on Awards, 100. 
 
 2. Vose V. How, 13 Mete. (Mass.) 
 243; Warner v. Collins, 135 Mass. 26; 
 Maynard v. Frederick, 7 Cush. (Mass.) 
 247; Shirley v. Shattuck, 4 Cush. (Mass.) 
 470; Peters v. Pierce, 8 Mass. 398; Har- 
 rington V. Brown, g Allen (Mass.), 579; 
 Day v. Hooper, 51 Mass. 178; Bond v. 
 Fay, I Allen (Mass.), 212; Gordon v. 
 Tucker, 6 Greenl. (Me.) 247; Walker v. 
 Merrill, 13 Me. 173; Hanson v. Webber, 
 40 Me. 194; Porter z/. Buckfield, etc., R. 
 Co., 32 Me. 539; Dundon v. Starin, 19 
 Wis. 261; Ailing i/. Munson, 2 Conn. 
 696. 
 
 3. Harden v. Harden, 11 Gray (Mass.), 
 435; Jones ». Carter, 8 Allen (Mass.), 431; 
 Nelson v. Andrews, 2 Mass. 164; Bacon 
 V. Crandon, 15 Pick. (Mass.) 79; Buck- 
 land -u. Conway, 16 Mass. 396; Ailing w. 
 Munson, 2 Conn. 694; Holcomb v. Tif- 
 fany. 38 Conn. 271. 
 
 4. Strang v. Ferguson, 14 Johns. (N. Y.) 
 161; Nichols V. Rensselaer Co. Mut. Ins. 
 Co., 22 Wend. (N. Y.) 125; Cox v. Jag- 
 ger, 2 Cow, (N. Y.) 638; s. c, 14 Am. 
 Dec. 522; Chase v. Strain, 15 N. H. 535; 
 Joy V. Simpson, 2 N. H. 179; Spofford 
 V. Spofford, 10 N. H. 254; Chapin v. 
 Bendy, 25 N. H. 285; Brown v. Mathes, 
 5 N. H. 229; Andrews v. Foster, 42 N. 
 H. 376; Hawley v. Hodges, 7 Vt. 237; 
 Bowman v. Downer, 28 Vt. 532; Bur- 
 nell V. Everson, 50 Vt. 449; Dudley v. 
 Thomas, 23 Cal. 365; Dickerson v. Ty- 
 ner, 4 Blackf. (Ind.) 253; McClure ». 
 Shroyer, 13 Mo. 104; Young v. Shook, 
 4 Rawle (Pa.), 302; Hewitt v. Furman, 
 16 S. & R. (Pa.) 135; Wade v. Powell, 
 31 Ga. i; Hoover v. Neighbors, 64 N. 
 Car. 429. 
 
 / Arbitrators have an implied authority 
 
 to determine the question of the costs oF 
 cause submitted to them. Oakley v. 
 Anderson, 93 N. Car. 108. Compare- 
 Morrison v. Buchanan, 32 Vt. 288, 
 where Redfield (J.) held that the power 
 to award costs, and especially the cost of 
 the arbitrator, is quite too important a 
 power to be implied as a mere incident 
 of the submission; and Matter of Van- 
 derveer, 4 Den. (N. Y.) 249, where it- 
 was held that a submission to arbitration, 
 under the statute of New York does not. 
 impliedly give the arbitrator authority to 
 award tlie costs and expenses of the ar- 
 bitration, although they may award their- 
 own fees and expenses. Where arbi- 
 trators in excess of their authority have 
 awarded costs the award is not neces- 
 sarily vitiated. The portion relative to 
 the costs may be stricken out and the- 
 rest of the award sustained. Porter ». 
 Buckfield, etc., R. Co., 32 Me. 539;, 
 Hanson v. Webber, 40 Me. 194; May- 
 nard V. Frederick, 7 Cush. (Mass.) 247; 
 Clement v. Comstock, 2 Mich. 359; Mat- 
 ter of Vanderveer, 4 Den. (N. Y.) 249. 
 
 In some States the courts have decided 
 that where arbitrators have the power to. 
 award costs it is also their duty to do it.. 
 An omission will, however, not neces- 
 sarily invalidate the award. Chapin v. 
 Boody, 25 N. H. 285; Brown v. Mathes^ 
 5 N. H. 229; Rixford v. Nye, 20 Vt. 132., 
 Harvey v. Snow, i Yeates (Pa.), 156. 
 
 If the award of arbitrators to whom a- 
 case is rtferred is silent as to cost, the 
 prevailing party is entitled to recover 
 them. Woolson v. Boston, etc., R. Co., 
 103 Mass. 580. 
 
 In case arbitrators award costs in the 
 award it is not necessary that every itepi 
 should be given; awarding a gross stun 
 is sufficient. The amount must, how- 
 ever, be certain, although in case of un- 
 certainty the courts will try to ascertain 
 the intention of the arbitrators from the. 
 award, and decide .accordingly. Tall-, 
 man v. Tallman, 5 Cush. (Mass.) 325;, 
 Thoreau v. Pallies, 5 Allen (Mass.), 354;;. 
 Hewitt V. Furman, 16 S. & R. (Pa.) 133; 
 Whitney v. Cook, 5 Mass. 139. 
 
 Where a lis pendens is submitted to ac- 
 
 687 
 
'Compensation. 
 
 ARBITRA TION. 
 
 Duration of Anthority, 
 
 Fees. — Even where the submission does not provide for it, the 
 arbitrator is entitled to reasonable compensation for his services, 
 and it is not error for him to award the fees himself. ^ 
 
 15. Duration of Arbitrators' Authority. — As the power of the arbi- 
 trators is limited by the stipulations of the submission, so is the 
 duration of their authority defined by the. same submission. 
 Where the submission stipulates a time within which the award 
 is to be made, their power ceases at the expiration of this time.* 
 
 bitration the submission implies power 
 to the arbitrators to award the costs of 
 the suit, even if he should decide that the 
 party in whose favor the award is made 
 has to bear them. Vose o. How, 13 
 Mete. {Mass.) 243; Nelson v. Andrews, 
 2 Mass. 164; Bacon v. Crandon, 15 Pick. 
 (Mass.) 7g; Jones 11. Carter, 8 Allen 
 {Mass.), 431; Brown v. Mathes, 5 N. H. 
 229; Joy V. Simpson, 2 N. H. 79; School 
 Distr. V. Aldrich, 13 N. H. 140; Chapin 
 ■n. Boody, 25 N. H. 285; Austin v. Snow, 
 
 2 Dall. (U. S.) 157. Compare Chase v. 
 Strain, 15 N. H. 535. 
 
 1. Hinman v. Hapgood, i Den. (N. Y.) 
 188; s. c, 43 Am. Dec. 663; Ott v. 
 Scbroeppel, 3 Barb. (N. Y.)63; Devlin z/. 
 Mayor, 54 How. Pr. (N. Y.) 68; Wadez/. 
 Powell, 31 Ga. i ; Burnell v. Everson, 50 
 VL 449. 
 
 He has a lien on the award for the 
 amount of his fees, and may retain it in 
 his bands until they are paid. Clement 
 i>. Comstock, 2 Mich. 359. 
 
 Each party is liable to him for the full 
 amount of his fees. Young w. Starkey, i 
 Cal. 426. 
 
 Each arbitrator may sue alone for his 
 compensation, and it seems that he must 
 do so. Hinman v. Hapgood, i Den. (N. 
 Y.) 188; s. c, 43 Am. Dec. 663 
 
 2. White V. Puryear, 10 Yerg. (Tenn.) 
 441; Brower v. Kingsley, i Johns. Cas. 
 (N. Y.) 334; Hall V. Hall, 3 Conn. 308; 
 White vl Kemble, 3 N. J. L. 349; Bun- 
 tain V. Curtis, 27 111. 374; Smith v. Spen- 
 cer, I McCord Ch. (S. Car.) 92; Rixford 
 V. Nye, 20 Vt. 132; Robinson v. O'Con- 
 nor, 12 Neb. 405; Thiesselin w. Rossett, 
 
 3 Abb. Pr. N. S. (N. Y.) 54; McClure v. 
 Shroyer, 13 Mo. 104. Compare Shaw v. 
 Pearce, 4 Binn. (Pa.) 4B5. 
 
 The parties to the submission may 
 either expressly or by implication extend 
 the time for making the award. Consent 
 to such extension is implied when the 
 parties after the time has elapsed proceed 
 with the arbitration without objecting. 
 Hall V. Hall, 3, Conn. 308; Buntain v. 
 Curtis, 27 111. 374; Bloomer v. Sherman, 
 5 Paige (N. Y.), 575; White v. Kemble, 3 
 N. J. L. 461 ; White v. Puryear, 10 Yerg. 
 {Tenn.) 441 ; Smith v. Spencer, I McCord 
 
 Ch. (S. Car.) 92; Mathews v. Miller, 25 
 W. Va. 817. 
 
 Where the submission is silent as to 
 the time in which an award is to be made, 
 the arbitrator's authority will continue 
 for life unless it be revoked. The parties 
 may request them to proceed within a 
 reasonable time, and if after such request 
 the arbitrator neglect and refuse, such 
 neglect on his part will be a good ground 
 for revoking his authority. Russell on 
 Arb. 140; Small v. Thurlow, 37 Me. 504; 
 Harrington v. Rich, 6 Vt. 666; Rogers v. 
 Tatum, I Dutch. (N. ij.) 281; White v. ' 
 Puryear, 10 Yerg. (Tenn.) 441; Harding 
 V. Wallace, 8 B. Monr. (Ky.) 536; Tyson 
 V. Robinson, 3 Ired. (N. Car.) 333. 
 
 But an award made twelve years after 
 the submission was held to be invalid in 
 the absence of sufficient reason for the 
 delay. Hoolf v. Philbrick, 23 N. H. 288. 
 
 Where no time is specified within 
 which an award must be made it may be 
 made at any time; and being delivered to 
 a party with the signature of only one 
 arbitrator it may afterward be signed by 
 the other and thereupon be good. .Saun- 
 ders V. Heaton, 12 Ind. 20; Nicljiols v. 
 RensselaerCo. Ins. Co., 22 Wend. (N. Y.) 
 125. 
 
 Even where the penalty bond stipu- 
 lated that the penalty should be paid 
 three months after date, the submission 
 itself being silent as to the time of mak- 
 ing the award, it was held that the bond 
 did not limit the power of the arbitrator 
 to that time. Armstrong v. Robinson, 5 
 Gill & J. (Md.) 412. 
 
 Where in the submission a day is fixed 
 for making the award, and the time is 
 not extended by consent of the parties, 
 the award to be valid must be made before 
 jox on the day fixed. So where by an 
 agreement for the valuation of crops be- 
 tween an outgoing and an incoming 
 tenant it was provided that the valuation 
 should be made immediately, but should 
 be revised and examined by the valuers 
 o.n the 1st of August then next, and the 
 valuers made a valuation forthwith, and 
 on the second day of August re-exam- 
 ined the crop and reduced the price pre- 
 viously settled, it was held that the time 
 
Duration of Authority. 
 
 ARBITRA TION. Umpire and Third Arbitrator. 
 
 Power Expires with the Making of the Award. — As soon as the 
 award is made, the authority of the arbitrator, having once been 
 ■completely exercised according to the terms of the reference, is at 
 an end. He is not at liberty, after executing the award, to exer- 
 cise a fresh judgment on the case and alter the award in any par- 
 ticular. If he does so in fact the alteration will be merely nugat- 
 ory, and the award, as originally written, will stand good. He is 
 so entirely y«w<:^«j officio that he cannot even correct a manifest 
 error in the calculation of figures ; or where the defendant is by 
 the award directed to pay costs, substitute instead the name of 
 the plaintiff, though such amendment be merely to make the 
 expression of his will correspond with his original intention ; or 
 make a new award identical with the old one, except that it con- 
 -ains words giving the plaintiff the costs of the reference, such 
 words having been in the arbitrator's original draft, but omitted 
 by accident from the fair copy which he signed as his first 
 award. 1 
 
 16. Umpire and Third Arbitrator. — The submission may require 
 the arbitrators, .when they cannot agree, to appoint an umpire or a 
 third arbitrator. The duty of the umpire, when called in, is to de- 
 •cide alone matters upon which the arbitrators could not agree.* 
 
 was of ine essence of the contract, and 
 that as the revision was not made on the 
 first day of August it was inoperative. 
 Marshall v. Powell, g Q. B. 779. 
 
 When the submission is dated Septem- 
 ber 1st, and provides that the award shall 
 'be rendered within thirty days, an award 
 •rendered on the ist October is within its 
 terms. Chapman v. Ewing, 78 Ala. 403. 
 
 1. Russell on Arb. 144; Bavnei'. Mor- 
 ris, I Wall. (U., S.) 97; Talbott v. Hart- 
 ley, I Cranch (C. C), 31; Woodbury v. 
 Northy, 3 Greenl. (Me.) 85; s. c, 14 Am. 
 Dec. 214; Thompson v. Mitchell. 35 Me. 
 281; Rogers v. Corrothers, 26 W. Va. 
 238, 246; Clement v. Rohrabrack, 15 Pa, 
 St. 116;' Aldrich v. Jessiman, 8 N. H. 
 516; Indiana Cent. R. Co. v. Bradley. 7 
 Ind. 49; Lansdale v. Kendall, 4 Dana 
 (Ky.), 613; Cleveland v. Dixon, 4 J. J. 
 Marsh (Ky.). 226; Fitzgerald v. Fitz- 
 gerald, Hardin (Ky.), 227 ; French v. 
 Moseley, i Litt. (Ky.) 248 ; Clark v. 
 Burt. 4 Cush. (Mass.) 396; Bigelovv v. 
 Maynard, 4 Cush. (Mass.) 317; Ward v. 
 'Gould, 5 Pick. (Mass.) 291 ; Fallon v. 
 Kelehar, 16 Hun (N. Y.), 266; Doke v. 
 James, 4 Comst. (N, Y.) 567; Mayor of 
 N, Y. V. Butler, i Barb. (N. Y.) 325; 
 Smith V. Smith, 28 111. 56; Butler v. 
 Boyles. 10 Humph. (Tenn.) 155; s. c, 51 
 Am. Dec. 697; Dudley v. Thomas, 23 
 ■Cal. 365; Patton v. Baird, 7 Ired. (N.Car.) 
 Eq. 255. Compare Hazeltine v. Smith, 3 
 Vt. 53S. 
 
 And a decision of arbitrators which is 
 
 expressly made subject to future altera- 
 tions upon the suggestion of errors by 
 the parties does not constitute a valid 
 award. McCrary v. Harrison, 36 Ala. 
 577. 
 
 But he has the power to correct a mere 
 clerical error of omission which does not 
 affect the merits. Goodell v. Raymond, 
 27 Vt. 241; McKinstry v. Solomons, 2 
 Johns. (N. Y.) 57; 13 Johns. 27. 
 
 Where arbitrators after signing, seal- 
 ing, and publishing the award, but before 
 delivery, reconsidered it upon the objec-^ 
 tion of one of the parties interested, and 
 reduced the amount and again signed, 
 sealed, and delivered it, it was, however, 
 held that the latter award was the true 
 one. Bvars v. Thompson, 12 Leigh 
 (Va.), 556. 
 
 The power of an arbitrator is not ter- 
 minated by the delivery to the parties of 
 an informal statement of their conclu- 
 sions. Bodge V. Hull. 59 Me. 225. 
 
 2. Haven v. Winnisimmet Co., II 
 Allen (Mass.), 377; Shields v. Renno, I 
 Overt. (Tenn.) 313; Mullins v. Arnold, 4 
 Sneed (Tenn.), 262; Bassett v. Cunning- 
 ham, 9 Gratt. (Va.) 684; Rison v. Berry, 
 4 Rand. (Va.) 275; King v. Cook, T. U. 
 P. Chart. (Ga ) 286; s. c, 4 Am. Dec. 715; 
 Boyer v. Amand, 2 Watts (Pa.), 74; But- 
 ler V. Mayor of N. Y., i Hill (N. Y,), 489; 
 Lyon V. Blossom, 4 Duer (N. Y.). 318; 
 Scudder v. Johnson, 5 Mo. 551; Rigden 
 V. Martin, 6 Har. & J. (Md.) 403; Smith 
 V. Morse, 9 Wall. (U. S.) 76. 
 
 I C. of L.— 45 
 
 689 
 
Jmpire and Third Arbitrator. ARBITRA TION. Power of — Appointment.. 
 
 A third arbitrator is required to act with the others to decide by 
 a majority award.' 
 
 Power of Umpire derived from Submission. — Like the arbitrators^ 
 an umpire or third arbitrator derives his power only from the sub- 
 mission. If the arbitrators should call one in without being 
 authorized by the submission, his award or the majority award 
 would be a nullity.''* 
 
 When Appointed. — Where the submission authorizes the arbi- 
 trators, in case they cannot agree, to leave the decision to an 
 umpire or to call in the assistance of a third arbitrator, they may 
 make their choice before they have heard the evidence. ^ 
 
 Mode of Appointment. — The acknowledged general rule as to 
 the mode of appointing the umpire is that the appointment must 
 be the act of the will and concurring judgment of both the arbi- 
 trators, unless the parties consent to some other mode of appoint- 
 ment.* 
 
 1. MuUins V. Arnold, 4 Sneed. (Tenn.) 
 262; Haven v. Winnisimmet Co., n Al- 
 len (IVJass.), 377; Willis i/. Higginbotham, 
 61 Miss. 164; Quay v. Westcott, 60 Pa. 
 St. 163; Gaify v. Hartford Bridge Co., 
 42 Conn. 143. 
 
 Where a submission provided that the 
 arbitrators should have power in case of 
 disagreement to choose an umpire, and 
 during the trial the parties erased the 
 stipulation regarding the umpire, and 
 provided in the submission for a third 
 arbitrator who was chosep, an award 
 rendered on such submission was upheld. 
 State V. Rawson, 25 W. Va. 23. 
 
 2. Daniel v. Danie', 6 Dana (Ky.), 98 
 Sharp V. Lipsey, 2 Bailey (S. Car.), 113 
 McMahan v. Spinning, 51 Ind. 187 
 Royse v. McCall, 5 Bush (Ky.), 695. 
 
 So where upon a reference to four, 
 with power to call in an umpire, an 
 award by the majority being legal, three 
 of the four agreed, tlie calling in of an 
 umpire, afterward was held to be illegal. 
 Lockart v. Kidd, 2 Treadw. (S. Car.) 
 Const. 217; Black v. Pearson, i McCord 
 (S. Car.), 137- 
 
 3. Kyd on Aw. 87; Butler v. Mayor of 
 N. Y., I Hill (N. Y.), 489; Van Cortland 
 V. Underhill, 17 Johns. (N. Y.) 405; 
 McKinstry v. Solomons, 2 Johns. (K. Y.) 
 57; Rigden v: Martin, 6 Har. & J. (Md.) 
 403; Bigelow ». Maynard, 4Cush. (Mass.) 
 3,17;' Peck V. Wakely, 2 McCord (S. Car.), 
 279; Stevens v. Brown, 82 N. Car. 400; 
 Dudley v. Thomas, 23 Cal. 365; Newton 
 V. West, 3 Mete. (Ky.) 24; Woodrow v. 
 O'Connor, 28 Vt. 776; Alexandria Canal 
 Co. v. Swann, 5 How. (U. S.) 83; Lutz 
 ■0. Linthicum, 8 Pet. (U. S.) 165; Rogers 
 V. Corrothers, 26 W. Va. 238. Compare 
 Traverse ». Beal, 2 Cranch (C. C), 113. 
 
 It follows that, if the submission calls 
 for an award on a certaip day, and if 
 they cannot agree for an award by an 
 umpire at a future day, the arbitrators, 
 can appoint the umpire as soon as they 
 are convinced that they cannot agree. 
 Richards v. Brockenbrough, i Rand. 
 (Va.) 449. 
 
 And the appointment at such an earlier 
 date d(^es not invalidate their award if 
 theyshbuld come to an agreement before 
 the time expired at which their award 
 was called for and before the umpire 
 made his award. Daniel v. Daniel, 6 
 Dana (Ky.), 93. 
 
 Under the same stipulations in the sub- 
 mission the arbitrators may appoint the 
 umpire, even if they have not acted at 
 all, and his award will be valid. McKin- 
 strey v. Solomons, 2 Johns.' (N. Y.) 57; 
 13 Johns. (N. Y.) 27. 
 
 Where a submission "authorizes and 
 directs the arbitrators to select an um- 
 pire," it means, if there should be dis- 
 agreement, the umpire shall settle it. 
 But if under such submission there is no 
 disagreement, and no umpire is chosen, 
 the award will not be bad because the 
 arbitrators did not choose an umpire. 
 Rogers v. Corrothers, 26 W. Va. 238. 
 
 4. Russell on Arb. 237; In re Cassell, 
 9 B. & C. 624; Graham v. Graham^ I2 
 Pa. St. 128; Crisp v. Love, 65 N. Car. 
 126. 
 
 But where two parties had been pro- 
 posed, to which neither of the arbitrators 
 did object, a choice by lot has been up- 
 held. Neale v. Ledger, 16 East, 51; Eu- 
 ropean & Am. Steam Shipping Co. w, 
 Crookey, 2g L. J. C. P. 155; Morgan v. 
 Bolt, I N. R. 271; In re Hopper, 8 B; & 
 S. lOO. 
 
 690 
 
Umpire and Third Arbitrator, ARBITRA TION. Arbitrators as Witnesses, 
 
 Form of Appointment. — The appointment of an umpire must be 
 in writing under a written submission, and may be by parol under 
 a parol submission, but where required in writing it is sufficient 
 that the appointment be embodied in the award, and the arbitra- 
 tors join in signing it. Not so, however, where the submission 
 calls for an appointment before the hearing.^ , 
 
 Umpire must Act on his own Judgment. — The umpire must use 
 his own judgment in making the award. He may not consider 
 the opinions of the disagreeing arbitrators and select the one which 
 he considered correct, but he must consider the evidence of the 
 whole case and decide by this only.** 
 
 Umpire must Sign the Award. — Where upon disagreement of 
 the arbitrators the umpire is called in and makes the award, he 
 must sign the award and not the arbitrators, although the addi- 
 tional signatures of the arbitrators will not invalidate the award. 
 Such signatures will be rejected as surplusage, or as a verification 
 of the recitals in it.^ 
 
 17. Arbitrators as Witnesses. — In proceedings upon the award arbi- 
 trators may be called as witnesses to testify concerning what mat- 
 ters have been submitted to them.* 
 
 1. EIraendorf v. Harris, 23 Wend. (-N. 
 Y.)628; s. c, 35 Am. Dec. 587; Sharp v. 
 Lipsey, 2 Bailey (S. Car.). 113 Compare 
 Rison v. Berry, 4 Rand. (Va.) 275. 
 
 But any irregularity in the appointment 
 may be cured by the consent of the par- 
 ties. Knowlton z/. Homer, 30 Me. 552. 
 
 Even where he was appointed without 
 any authority at all. Sharp v. Lipsey, 2 
 Bailey (S. Car.), 113. 
 
 When authorized by the submission 
 the arbitrators may proceed to call in an 
 umpire without consulting the parties 
 about their choice. Sharp v. Lipsey, 2 
 Bailey (S. Car.), 113. 
 
 And if their first appointee refuses to 
 act, they may make successive appoint- 
 ments until they have found the party 
 willing to serve. Cloud v. Sledge, I Bai- 
 ley (S. Car.), 105. 
 
 2. Haven w. Winnisimmet Co., II Al- 
 len (Mass.), 377; Crabtree v. Green, 8 
 Ga. 8; Wheaton v. Crane, 27 N. J. Eq. 
 368; Tollitt V. Saunders, 9 Price, 612. Cf. 
 Finney v. Miller, i Bailey (S. Car.), 81. 
 
 So after the umpire or third arbitrator 
 has been appointed, a rehearing of the 
 case becomes necessary and the parties 
 are entitled to notice of time and place 
 for such a rehearing. Day v. Hammond, 
 57 N. Y. 479; s. c, 15 Am. Rep. 522; 
 Elmendorf v. Harris. 23 Wend. (N. Y.) 
 628; s. c, 35 Am. Dec. 587; Selby v. 
 Gibson, i Harr. & J. (Md.) 362; Haven v. 
 Winnisimmet Co., 11 Allen (Mass), 377; 
 Walker v. Walker, 28 Ga. 140; Ingraham 
 V. Whitmore, 75- HI. 24; Alexander v. 
 
 691 
 
 Cunningham, iii 111. 511; Small v. 
 Courtney, i Brew. (S. Car.) 205; Frissell 
 V. Figkes, 27 Mo. 557; Daniel v. Daniel, 
 6Dana(Ky.). 93; Falconer z;. Montgom- 
 ery, 4 Dali. (U. S.) 233; Thomas v. West 
 Jersey R. Co., 24 N. J. Eq. 567; Pass- 
 more V. Pettit, 4 Dall. (U. S.)27i; Lutz 
 w. Linthicum, 8 Pet. (U. S.) 165; Thorri- 
 ton V. Chapman, 2 Cranch. (C. C.) 244; 
 Taber v. Jenney, Sprague (U. S.). 315, 
 Compare Ranney v. Edwards, 17 Conn. 
 309; Blood V. Shine, 2 Fla. 127. 
 
 But the parties may either expressly 
 or impliedly waive their right to a re- 
 hearing; such waiver should be distinct 
 and unequivocal. In case of waiver the 
 umpire may use the evidence as received 
 by the arbitrators. Day v. Hammond, 
 57 N. Y. 47g; Graham v. Graham, 12 Pa. 
 St. 128; West Jersey R. Co. v. Thomas; 
 6 C. E. Green (N. J.), 205; Crabtree v. 
 Green, 8 Ga. 8. 
 
 3. Kile V. Chapin, 9 Ind. 150; King v. 
 Cook, T. U. P. Chart. (Ga.) 286; s. c, 4 
 Am. Dec. 715; Tyler v. Webb, 10 B. 
 Mon. (Ky.) 123; Rigden v. Martin, 6 Har. 
 & J. (Md ) 403; Frissell v. Ficks, 27 Mo. 
 557; Boyer v. Aurand, 2 Watts (Pa.), 74; 
 Rison V. Berry, 4 Rand. (Va.)275; Shields 
 V. Renno, i Overt. (Tenn.) 313; Powell 
 V. Ford, 4 Lea (Tenn.), 278; McDonald 
 V. Arnout, 14 111. 58; Jenkins ». Meagher, 
 46 Miss. 84. 
 
 An award signed by the umpire alone, 
 or by the umpire and one of the arbitra- 
 tors, is good. Sheffield v. Clark,73 Ga.92. 
 
 4. Hawksworth v. Brammal, 5 M. & 
 
The Award. 
 
 ARBITRATION. 
 
 Form — ITnder Statutes. 
 
 18. The Avra,T6i.—Form of the Award. — Where the submission re- 
 quires an award to be in writing or under seal, the .stipulations 
 of the award must be complied with. Where the submission is 
 silent on the subject a verbal award will be vahd, unless disposing 
 of property which can only be passed by a written instrument, or 
 an instrument under seal.i 
 
 Under Statutes. — Awards given under a statutory submission 
 must comply in form with the statutory regulations, although, if 
 the conditions are not complied with, the award may stand as an 
 award at common law, if this was the intention of the parties.** 
 
 Cr. z8i; Republic Bank v. Darragh, 30 
 Hun (N. Y.), 2g; Hale v. Huse, 10 Gray 
 (Mass.), gg; Hall v. Vanier. 6 Neb. 85; 
 Thrasher v. Overby, 51 Ga. gi. 
 
 But not for the purpose of explaining 
 uncertainties in the award. Kingston v. 
 Kincaid, i Wash. (U. S.) 448; Aldrich v. 
 Jessiman, 8 N. H. 516; Ward v. Gould, 
 
 5 Pick. (Mass.) 2gi; Alexander v. Mc- 
 Near, 28 Fed. Rep. 403; Mulligan v. Per- 
 ry, 64 Ga. 567; Cobb v. Dortch, 52 Ga. 
 548. Compare Huntsman v. Nichols, 116 
 Mass; 521. 
 
 An award made in substantial conform- 
 ity to statutory requirements, and de- 
 termining with proper certainty all the 
 matters submitted, is final and conclusive 
 between the parties, unless impeached 
 ior fraud, partiality, or corruption on the 
 part of the arbitrators; and the oral testi- 
 mony of the arbitrators themselves can- 
 not be received on motion to enter up the 
 award as the judgment of the court, to 
 show errors or mistakes in their decision. 
 Chapman v. Ewing, 78 Ala. 403; Tucker 
 V. Page, 6g 111. 179. 
 
 1. Thompson v. Mitchell, 35 Me. 281; 
 Philbrick v. Preble. 18 Me. 255; s. c, 36 
 Am. Dec. 718; Valentine v. Valentine, 
 2 Barb. Ch. (N. Y.) 430; Owen v. Boe- 
 rura, 23 Barb. (N. Y.) 187; M'Manus v. 
 M'CulIoch, 6 Watts (Pa.), 357; Jones v. 
 Dewey, 17 N. H. 596; Marsh v. Packer, 
 20 Vt. igS; Smith v. Bullock, 16 Vt. 
 5g2; Akely v. Akely, 16 Vt. 450: Gates 
 V. Bromil, i Salk. 75; Cocks v. Maccles- 
 field, Dyer, 218 b. Compare Mathews v. 
 Miller, 25 W. Va. 817. 
 
 There may be a valid parol award un- 
 der a parol submission. Gay v. Walt- 
 man, 8g Pa. St. 453. 
 
 An award fixing a boundary-line, like 
 a submission regarding a boundary-line 
 question, may be by parol. Jones v. 
 Dewey, 17 N. H. 596; Sawyer «;. Fellows, 
 
 6 N. H. 107; s. c, 25 Am. Dec. 452; Orr 
 V. Hadley, 36 N. H. 575; Eaton v. Rice, 
 8 N. H. 378; Jackson v. Dysling, 2 Cai; 
 (N. Y.) 198; Jackson v. Gager, 5 Cow. 
 (N. Y.) 383; Shelton v. Alcox, ii Conn. 
 
 240. Compare Gove v. Richardson, 4 
 Greenl. (Me.) 327. 
 
 The award need not be in writing nor 
 under seal simply because the submission 
 is in writing or under seal. Marsh v. 
 Packer, 20 Vt. 198; Gobdell v. Raymond, 
 27 Vt. 241; White V. Fox, 2g Conn. 570; 
 Crabtree v. Green, 8 Ga. 8. 
 
 Neither is It necessary that the award 
 should be attested by witnesses unless so 
 required by the submission. Valle v. 
 North Missouri R. Co., 37 Mo. 445; He- 
 drlck V. Judy, 23 Ind. 548. 
 
 The submission need not state in plain 
 words that the award should be In writ- 
 ing to make a written award necessary. 
 Any expression intimating that a written 
 award is required will suffice. Morse on 
 Arb. 257. 
 
 But an instruction in the submission in 
 regard to the form of the award must be 
 strictly followed. Pratt v. Hackett, 6 
 Johns. (N. Y.) 14; Allen v. Galpin, 9 
 Barb. (N. Y.) 246; Stanton v. Henry, 11 
 Johns. (N. Y.) 133; Buck v. Wadsworth, 
 I Hill (N. Y.), 321; Bloomer v. Sherman, 
 5 Paige (N. Y.), 575; Tudor v. Scovell, 
 20 N. H. 174; Caldwell v. Dickinson, 13 
 Gray (Mass.), 365; Montague v. Smith, 13 
 Mass.3g6; Newman j'.Labeaume.g Mo. 30. 
 
 Unless waived by the parties. Sellick 
 w. Aridams, 15 Johns. (N. Y.) ig7; Per- 
 kins 7^ Wing. 10 Johns. (N. Y.) 143; Buck 
 V. Wadsworth, i Hill (N. Y.), 321 ; French 
 V. New, 2 Abb. App. Dec. (N. Y.) 209; 
 Shultz V. Halsey, 3 Sandf. (N. Y.)405; 
 Tudor V. Scovell, 20 N. H. 174. ' 
 
 2. Darling v. Darling, 16 Wis. 644; 
 Steel V. Steel, 1 Nev. 27; Higginst/. Km- 
 neady, 20 Iowa, 474; Striim v. Cunning- 
 ham. 3 Ohio, 286; Collins v. Karatopsky, 
 36 Ark. 316. 
 
 But where the statute requires the at- 
 testation of the award, an award signed 
 by three arbitrators, the signatures of two 
 of whom only were attested, was upheld; 
 the submission providing that the award 
 of two would be binding. Ott v. Schroep- 
 pel, 5 N. Y. 482. See also Tucker v. 
 Allen, 47 Mo. 488. 
 
 692 
 
The Award. 
 
 ARBITRA TION. Formof Words— Subject-matter. 
 
 Form of Words. — No special form of words is required to make 
 a valid award, whether it be verbal or in writing, but it must ex- 
 press an actual decision. The words " to meet the circumstances 
 in a liberal manner, I propose that B should pay A, etc.," do not 
 express a decision, and form no valid award. ^ 
 
 Subject-matter. — The award must be coextensive with the sub- 
 mission. All matters submitted must be considered and decided 
 upon by the arbitrators ; and an award which disposes of only 
 part of the subject-matter of the submission will be void.* 
 
 In order that a court may enter judg- 
 ment on an award the statutory regula- 
 tions must be complied with. Forman 
 Lumber Co. v. Ragsdale, 12 111. App. 441; 
 Martine v. Harvey, 12 111. App. 587; 
 Rogers v. Corrothers, 26 W. Va. 238. 
 Compare Gibson v. Burrows, 41 Mich. 713. 
 
 1. Ott V. Schroeppel, 5 N. Y. 483; Gul- 
 ley V. Macy. 89 N. Car. 343; Lock v. 
 Vulliamy, 5 B. & Ad. 600. 
 
 Where a dispute about the ownership 
 of certain tract of land anij alleged tres- 
 pass on such land was submitted, the ar- 
 t)itrators "awarded and determined that 
 the ' north line ' so called between A and 
 B shall be the line established." Held to 
 be a complete and final award in the mat- 
 ter. Caldwell v. Dickinson, 13 Gray 
 (Mass.), 365. 
 
 A general award of a specific sum with- 
 out specifying the items of which it is 
 composed is good in point of form. My- 
 ers V. York, etc., R. Co., 2 Curt. (U. S.) 
 28. 
 
 2- Carnochan v. Christie, 11 Wheat. 
 (U. S.) 446; James v. Thurston, i Cliff. 
 (U. S.) 367; Tudor V. Scovell, 20 N. H. 
 171; Varney v. Brewster, 14 N. H. 49; 
 Bunain v. Curtis, 27 111. 374; Smith v. 
 Potter, 27 Vt. 304; s. c, 65 Am. Dec. 198; 
 Akely v. Akely, l6 Vt. 450; Morse v. 
 Hale, 27 Vt. 660; Dogge w. Northwestern 
 Nat. Ins. Co., 49 Wis. 501; Harker v. 
 Hough, 7 N. J. L. 428; Richards v. 
 Drinker, i H-alst. (N. J.) 307; Waller v. 
 Shannon, 44 Conn. 480; Muldron v. Nor- 
 ris, 12 Cal. 331 ; Porter z/. Scott, 7 Cal. 312; 
 Boston, etc., R. Co. v. Nashua, etc., R. 
 Co., 139 Mass. 463; Parker v. Chase, 104 
 Mass. 431; Edwards w. Stevens, 3 Allen 
 (Mass.), 315; Houston v. Pollard. 9 Mete. 
 (Mass.) 164; Coupland v. Anderson, 2 
 Call. (Va ) 106; Johnston v. Brackbill, i 
 Pa. 364;- Scott V. Barnes, 7 Pa. St. 134; 
 McGregor, etc., R. Co. v. Sioux City, etc., 
 R. Co., 49 Iowa. 604; Blackledge v. Simp- 
 son, 2 Hayw. (N. Car.) 30; s. c. 2 Am. 
 Dec. 614; Gooch v. McKnight, 10 Humph. 
 (Tenn.) 229; Jones v. Welwood, 71 N. Y. 
 2o8; Jackson w. Ambler. 14 Johns (N. Y.) 
 96; Ott v. Schroeppel, 5 N. Y. 482; 
 
 Wright z;. Wright, 5 Cow. (N. Y.) 197; 
 McNear v. Bailey, 18 Me. 251; Archer v. 
 Williamson, 2 Har. & G. (Md.)62; Stone 
 V. Phillips, 4 Bing. N. Cas. 37; In re 
 Rider, 3 Bing. N. Cas. 874. Compare 
 Pearce z/. Mclntyre, 29 Mo. 423. 
 
 But though the award does not in 
 terms decide all the matters submitted to 
 the arbitrators, yet if the thing awarded 
 necessarily includes the other things and 
 matters mentioned in the submission it 
 is sufficient. Smith v. Demarest, 8 N. J. 
 L. 195; Crabtree v. Green, 8 Ga. 8; Mc- 
 CuUough V. McCullough, 12 Ind. 487; 
 Harden v. Harden, 11 Gray (Mass.), 435; 
 Mickles v. Thayer, 14 Allen (Mass.), 114; 
 Bigelow z/. Maynard, 4Cush. (Mass.) 317. 
 Sohier v. Eastabrook, 5 Allen (Mass.), 
 311; Blackledge v. Simpson, 2 Hayw. 
 (N. Car.) 30i s. c, 2 Am. Dec. 614; Bow- 
 man V. Downer, 28 Vt. 532; Dolbier v. 
 Wmg, 3 Greenl. (Me.) 421. 
 
 Where two separate suits between the 
 same parties were submitted to the same 
 arbitrator, with order " to take and settle 
 all accounts between the plaintiff and de- 
 fendant, and finally to determine their 
 claims in full against each other," an 
 award deciding only on matters involved 
 in one suit was held to be void. Bean v. 
 Bean, 25 W. Va. 604. 
 
 The omission of trifling matters in the 
 award will not avoid it. So where the 
 arbitrators were to divide and dispose of 
 firni assets as they should think proper, 
 and they omitted to dispose of a few 
 small articles of little value, the award 
 was held to be valid. Moore v. Gherkin, 
 Busb. L. (N. Car.) 73. 
 
 But where a suit for the dissolution of 
 a partnership and the settling of partner- 
 ship accounts was submitted, and the ar- 
 bitrators merely awarded that a certain 
 sum should be paid t)y one partner to the 
 others, without ordering a dissolution or 
 stating an account between each partner 
 and the firm, the award was considered 
 not to be final, and consequently void. 
 Paine v. Paine, 15 Gray (Mass.), 299. 
 
 Where a submission was under seal, 
 and the award rendered was in conform- 
 
 693 
 
The Award. 
 
 ARBITRATION. 
 
 Omission, 
 
 The Omission must be Proved by the party assailing the award, 
 or it must appear upon the face of the award. In the absence of 
 proof it will be presumed that all matters submitted were consid- 
 ered and passed upon.* 
 
 Must be Actually Submitted. — The matters included in the sub- 
 mission must be actually submitted to the arbitrators to avoid 
 the. award in case of omission.* 
 
 ance to the submission, held that it was 
 of no importance that the arbitrators 
 were only verbally informed of the con- 
 tents of the submission, and that the pa- 
 per was not in their hands during the 
 proceedings. Boor v. Wilson, 4S Md. 305. 
 
 1. Porter v. Scott, 7 Cal. 312; lyicCul- 
 lough V. McCuUough, 12 Ind. 487; 
 Thoreau v. Pallies, 5 Allen (Mass.), 354; 
 Holyoke Mach. Co. v. Franklin Paper 
 Co., 97 Mass. 150; Strong v. Strong, 9 
 Cush. (Mass.) 560; Tallman v, Tallman, 
 5 Cush. (Mass.) 325; Call v. Ballard, 65 
 Wis. 187; Parsons v. Aldrich, 6 N. H. 
 264; Furber v. Chamberlain, 29 N. H. 
 .405; Ford V. Burleigh, 60 N. H. 278; 
 Darst w. Collier, 86 111. 96; Hadaway v. 
 Kelly, 78 111. 286; M'Near v. Bailey, 18 
 Me. 251; Dolbier v. Wing, 3 Me. 421; 
 Hayes v. ForskoU, 31 Me. 112; Young 
 V. Kinney, 48 Vt. 22; Bowman v. Dow- 
 ner, 28 Vt. 532; Ott V. Schroeppel, 5 N. 
 Y. 482; Harris v. Wilson, i Wend. (N. Y.) 
 511; Wright V. Wright, 5 Cow. (N. Y.) 
 193; M'Kinstry v. Solomons, 2 Johns. 
 (N. Y.) 57; Dougherty v. McWhorter, 7 
 Yerg. (Tenn.) 239; Pollock v. Sutherlin, 
 25 Gratt. (Va.) 78; Clark v. Reins, 12 
 Gratt. (Va.) 98; Strong v. Beronjon, 18 
 Ala. 168; Hewitt v. Furman, 16 S. & R. 
 (Pa.) 135; Karthaus v. Ferrer, 1 Pet. (U. 
 S.) 222; Day V. Bonnin, 3 Bing. N. Cas. 
 219. 
 
 An arbitrator stated his conclusion in 
 his award, and added: "In arriving at 
 this result I have excluded every claim' — 
 including those for intoxicating hquors — 
 submitted by said parties, except the fol- 
 lowing, which I have allowed." Held, 
 that the meaning of the award is that the 
 .arbitrator disallowed the claims stated to 
 have been excluded in arriving at the re- 
 sult. Hammond v. Dedham, 7 Eastern 
 Repr. (Me.) 544. 
 
 So where a submission was of all ac- 
 tions real and personal, dnd the award is 
 only of actions personal, it will be good. 
 It will be presumed that no actions real 
 were pendmg between the parties. Kyd 
 on Aw. 172; Karthaus v. Ferrer, i Pet. 
 (U. S.) 222; Kleine v. Catara, 2 Gall. (U. 
 S.)6i; Horrel v. M'Alexander, 3 Rand. 
 (Va.) 94. 
 
 Z. Muldrow V. Norris, 12 Cal. 351; 
 
 M'Near v. Bailey, 18 Me. 251; Page v. 
 Foster, 7 N. H. 392; Varney v. Brew- 
 ster, 14 N. H. 49; Ballancez'. Underbill, 4 
 111. 453; Hodges V. Hodges, 9 Mass. 320; 
 Warfield v. Holbrook, 20 Pick. (Mass.) 
 531; Hewitt V. Furman, 16 S. & R. (Pa.) 
 135; Moore v. Cockroft, 4 Duer (N. Y.), 
 133; Karthaus v. Ferrer, I Pet. (U. S.) 
 222; Jones V. Welwood, 71 N. Y. 208. 
 
 Where a deed described land by metes 
 and bounds, and as being one hundred 
 and sixty-five acres, more or less, all 
 conveyed for a certain sum, and it did not 
 appear that it was sold by the acre, but 
 that a certaiif tract was sold for a specific 
 sum, and this deed had been accepted, 
 and the plaintiff in error had been in pos- 
 session of the land for several years, 
 without complaint, on the trial of the is- 
 sues between the parties before arbitra- 
 tors the court cannot say that they made 
 a mistake of law, or even committed 
 error, in rejecting parol evidence to show 
 that there were not as many acres as set 
 forth in the deed. Lester v. Callaway, 
 73 Ga. 730. 
 
 But where it appears on the face of the 
 award that matters have been presented 
 to the arbitrators, and they failed to pass 
 upon it, the award will be void. Wright 
 V Wright, 5 Cow. (N. Y.) 197. 
 
 Or where they expressly decline to de- 
 cide on matters actually submitted, their 
 award is void. Richards v. Drinker, 6 
 N. J. L. 307; Harker v. Hough, 7 N. J. 
 L. 428; Smith V. Potter, 27 Vt. 304; s. c, 
 65 Am. Dec. 198. 
 
 In an action upon an award of arbitra- 
 tors, under a submission to them of all 
 matters in dispute between the parties, 
 evidence is admissible in defence to show 
 that the arbitrators refused to consider 
 and pass upon a claim submitted to them 
 by the defendant. Gaylord v. Norton, 
 130 Mass. 74. 
 
 Where two neighbors submit their re- 
 spective claims for damages resulting 
 from depredations by cattle to arbitration, 
 and the arbitrators consider the claims 
 of one and give an award and refuse to 
 consider the claims of the other, the latter 
 may pay the award and then maintain an 
 action upon his original claims. Prit- 
 chard v. Daly, 73 111. 523. 
 
 694 
 
The Award. 
 
 ARBITRA TION. Must be Final and Certain. 
 
 ' Part of Submission Withdrawn. — The parties to an arbitration 
 Tiave the right at any time during the proceedings to withdraw 
 part of the matters submitted ; and such matters need, of course, 
 ■not be decided upon.^ 
 
 19. Awards must be Final and Certain. — That is, they shall be so 
 plainly expressed as that there may remain no uncertainty as to 
 the manner in which they are to be executed. This certainty, 
 however, is judged of only according to a common intent, con- 
 sistent^ with fair and probable presumptions.* 
 
 1. Varney v. Brewster, 14 N. H. 49; 
 BaHance v. Underbill, 4 111. 453. 
 
 And they are afterward precluded from 
 objecting to the award because such mat- 
 ters have not been decided upon. Page 
 V. Foster, 7 N. H. 392; Brewer v. Bain, 
 *o Ala. 153. 
 
 Where the submission is under seal, 
 such withdrawal can, however, not be 
 made by parol. Howard v. Cooper, i 
 Hill (N. Y.), 44. 
 
 2. Schuyler v. Vanderveer, 2 Cai. (N. 
 Y.) 235; Purdy I/. Delavan, i Cai. (N. Y.) 
 315; Perkins z/. Giles, 50 N. Y. 228; Waite 
 V. Barry, iz Wend. (N. Y.) 377; Vos- 
 burgh V. Bane, 14 JohnS. (N. Y.) 302; 
 Jackson V. Ambler, 14 Johns. (N. Y.) 96; 
 Cox V. Jagger, 2 Cow. (N. Y.) 638; s. c, 
 14 Am. Dec. 522; Wright v. Wright, 5 
 Cow. (N. Y.) 197; Butler v. Mayor of N. 
 Y., 7 Hill(N. Y.), 329; Hiscockz/. Harris, 
 74 N. Y. 108; Perkins v. Giles, 53 Barb. 
 {N. Y.) 342; Brown V. Hankerson, 3 
 Cow. (N. Y.) 70; White v. Barry, 12 
 Wend. (N. Y.) 377; Case v. Ferris, 2 
 Hill (N. Y.), 75; M'Kinstry z/. Solomons, 
 13 Johns. (N. Y.) 27; Bvers v. Van 
 Deusen, 5 Wend. .(N. Y.) 268; Hollings- 
 worth V. Pickering, 24 Ind. 435; Petti- 
 bone V. Perkins, 6 Wis. 616; Dundon v. 
 Starin, 19 Wis. 261; Harris v. Social 
 Mfg. Co., 9 R. I. 99; McCracken v. 
 Clarke, 31 Pa. St. 498; Gratz v. Gratz, 4 
 Rawle (Pa.), 411; Wood v. Earle, 5 
 Rawle (Pa.), 44; Young v. Shook, 4 
 Rawle (Pa.), 304; Gonsales ii. Deavens, 
 2 Yeates (Pa.), 539; Carson v. Carter, 
 64 N. Car. 332; Howard v. Babcock, 2t 
 111. 259; Ingrahara v. Whitmore, 75 111. 
 24; Burrows v. Guthrie, 61 III. 70; Hen- 
 rickson v. Reinbach, 33 111. 299; Alfred 
 v. Kankakee, etc., R. Co., 92 111. 609; 
 Porter v. Scott, 7 Cai. 314; Jacob v. 
 Ketcham, 37 Cai. 197; Pierson v. Nor- 
 man, 2 Cai. 599; Carter v. Ross, 2 Root 
 (Conn.), 507; Parkhurst v. Powers, 2 
 Root (Conn.), 531; Aldrich w. Jessiman, 
 8 N. H. 519; Hayes v. Bennett. 2 N. H. 
 422; Hazeltine v. Smith, 3 Vt. 535; Akely 
 TV. Akely, 16 Vt. 450; Woodward v. At- 
 water, 3 Iowa, 61; Shepard v. Stites, 2 
 
 Halst. (N. J.) 90; McKeen u. Oliphant, 
 18 N. J. L. 442; Stephenson v. Price, 30 
 Tex. 715; Turpin v. Banton, Hardin 
 (Ky.), 312; Brown v. Warnock, 5 Dana 
 (Ky.), 492; Rhodes v. Hardy, 53 Miss. 
 587; Toomey v. Nichols, 6 Heisk. (Tenn.) 
 159; Parker v. Parker, 103 Mass. 167; 
 Dubery v. Clifton, Cooke (Tenn.), 329; 
 Doolittle V. Malcomb, 8 Leigh. (Va.) 608; 
 s. c. , 31 Am. Dec. 671; Coxe v. Gent, i 
 McMuU. (S. Car.) 302; Strong v. Strong, 
 9 Cush. (Mass.) 560; Smith v. Holcomb, 
 99 Mass. 552; Peters v. Pierce, 8 Mass. 
 398; Comer v. Thompson, 54 Ala. 78; 
 McCrary v. Harrison, 36 Ala. 577; Car- 
 ter V. Calvert, 4 Md. Ch. 199; Archer w. 
 Williamson, 2 H. & G. (Md.) 67; Col- 
 cord V. Fletcher, 50 Me. 398; Manuel v. 
 Campbell, 3 Ark. 324; Lee v. Onstott, i 
 Ark. 206; King v. Cook, T. U. P. Charlt. 
 (Ga.) 286; s. c. , 42 Am. Dec. 534; Grier 
 V. Grier, i Dall. (U. S.) 173; Kingston v. 
 Kincaid, i Wash. (U. S.) 448; Lyle v. 
 Rodgers, 5 Wheat. (U. S.) 394; Talbott v. 
 Hartley, i Cranchj (C. C), 31; Faw v, 
 Davy, I Cranch (C. C), 440; Strong v. 
 Barbour, i Mack. (D. C.) 209. 
 
 An award is in the nature of a judg- 
 ment; it ought to be wholly decisive, 
 for if it does not determine the matter it 
 becomes a cause of a new controversy. 
 Bacon's Abr. 331; Patton v. Baird, 7 
 Ired. Eq. (N. Car.) 255; Hattier v. Eti- 
 naud, 2 Desau. (S. Car.) 571; Waite v. 
 Barry, 12 Wend. (N. Y) 377; Coicord 
 V. Fletcher, 50 Me. 398; Semple z/. Hutch- 
 inson, 4 Phil. (Pa.) 249; Lincoln v. Whit- 
 tenden Mills, 12 Mete. (Mass.) 31. 
 
 An award to do a certain act should 
 be so certain that specific performance 
 could be enforced. Banks v. Adams, 23 
 Me. 259; Etnier v. Shope, 43 Pa. St. no; 
 Cauthorn a. Courtney, 6 Gratt. (Va.)38i. 
 
 The rule that an award should be cer- 
 tain and final does not require that no 
 more shall remain to be done to complete 
 its execution, but that the things to be 
 done shall be determined and defined to 
 a reasonable certainty. Strong v. Strong, 
 9 Cush. (Mass.) 560. 
 
 An award to which the arbitrators at- 
 
 695 
 
Award Final and Certain. ARBIT.RA TION. Intendments and Fresnmptiong.. 
 
 Intendments and Presumptions. — An award is considered final, 
 and certain, and in general valid, until the contrary is proved. " It 
 is a settled rule in the construction of awards, that no intendment 
 will be indulged to overturn an award, but every reasonable in- 
 tendment shall be allowed to uphold it." ^ 
 
 tach the condition that neither one of the 
 parries should be bound by it is void. 
 Sartwoll V. Horton, 28 Vt. 370. 
 
 It has been held that there is no objec- 
 tion to arbitrators making first a prelimi- 
 nary and then a final award if the sub- 
 mission warrants it and the circumstances 
 render it proper. Truesdale v. Straw, 58 
 N. H. 207. 
 
 An award requiring a railroad com- 
 pany to pay a certain amount at any 
 time fixed by the company upon giving 
 the landowner three days notice of time 
 and place of payment, the landowner 
 then to deliver a deed, was held to be 
 void for uncertainty. Alfred i'. Kankakee, 
 etc., R. Co., 92 111. 609. 
 
 1. Merritt v. Merritt, n 111. 565; Mc- 
 Millan V. James, 105 111. 194; Haywood 
 V. Harmon, 17 111. 477; Karthaus v. 
 Ferrer, i Pet. (U. S.) 228; Dougherty v. 
 McWhorter, 7 Yerg. (Tenn.) 239; Neib 
 V. Hinderer, 42 Mich. 451; Borrets v. 
 Patterson, i Tayl. (N. Car.) 37; s. c, I 
 Am. Dec. 576; Green v. Franklin, I Tex. 
 497; Truesdale v. Straw, 58 N. H. 207; 
 Bancroft v. Grover, 23 Wis. 463; Mc- 
 Court V. McCabe, 46 Wis. 597; Call v. 
 Ballard, 65 Wis. 187; Dolph v. Clemens, 
 4 Wis. 181; Monitor Iron Works 1/. Ket- 
 chuni, 44 Wis. 126; Richards v. Brocken- 
 brough, I Rand. (Va.)449; Forrerz'. Coff- 
 man, 23 Gratt. (Va.) 871; Coupland u. 
 Anderson, 2 Call. (Va.) 106; Armstrong 
 V. Armstrong, i Leigh. (Va.) 491; Ken- 
 drick V. Tarbell, 26 Vt. 416; King v. 
 Cook, T. U. P. Chart. (Ga.) 286; s. c, 
 4 Am. Dec. 715; Ott v. Schroeppel, 5 
 N. Y. 482; Archer v. Williamson, 2 
 Har. & G. (Md.) 67; Roloson v. Carson, 
 8 Md. 208; Strong u. Strong, 9 Cush. 
 (Mass.) 560; Smith v. Minor, i N. J. L. 
 16; Wheejer v. Woodward, 66 Pa. St. 
 158; Berk.ieimer w. Geise, 82 Pa. St. 64; 
 Tomlinson v. Hammond, 8 Iowa, 40; 
 Fryeburg Canal v. Frye, 5 Me. 38. 
 
 An award is certain which may be ren- 
 dered certain. Sheffield v. Clark, 73 Ga. 
 92. 
 
 Technical precision and certamty are 
 tiever necessary in an award. If it be 
 expressed in such language as plain men 
 acquainted with the subject-matter can 
 understand, that is enough. Rogers v. 
 Corrothers, 26 W. Va. 238, 246. 
 
 Where an action on an insurance 
 policy was submitted, and the award held 
 
 that no sufficient proof had been pro- 
 duced to establish a claim against the 
 company, the award was held tp be final. 
 McDermott v. U. S. Ins. Co., 3 S. & R. 
 (Pa.) 604. 
 
 Where the arbitrators in their award 
 gave costs to one of the parties and said 
 nothing further about the matter in' dis- 
 pute, the court said: " As to the validity of 
 the report in reference to the objection 
 that it does not adjudicate upon the sub- 
 ject-matter submitted to the referees, 
 we think it sufficient; because by neces- 
 sary implication it must be considered as- 
 a determination upon the question. They 
 award that the defendant shall recover 
 the costs of the action. This they could 
 not have done without having decided 
 the point in controversy in their favor. 
 At least the legal presumption is that they 
 so determined." Buckland v. Conway, 
 16 Mass. 396; Stickles v. Arnold, i Gray 
 (Mass.), 418; Hodges v. Raymond, 9 
 Mass. 316; Traquair v. Redinger, 4 
 Yeates (Pa.), 282; Lamphire v. Cowan, 
 39 Vt. 420; Rixford v. Nye, 20 Vt. 132. 
 And see Purdy v. Delavan, i Cai. (N. Y.) 
 304- 
 
 Where an award decided that the par- 
 ties should hold certain real estate " ac- 
 cording to their respective possessions 
 forever," the court held that this descrip- 
 tion was sufficiently certain. "An actual 
 possession is susceptible of clear and 
 definite proof, " and, ' ' for aught we know, 
 they may be included within the most 
 permanent inclosures; and if necessary 
 to support the award we ought to intend 
 that to be the case." Jackson v. Ambler, 
 14 Johns. (N. Y.) 109. 
 
 An award under a submission concern- 
 ing the ownership of certain oxen sold 
 by A to B and claimed by C simply 
 stated " that B should pay certain sums 
 respectively to A and C." It was held 
 that this was sufficiently certain to infer 
 that the ownership was adjudged to B. 
 Hanson v. Webber, 40 Me. 194. 
 
 In a partnership matter to be settled by 
 arbitration the award decided that one of 
 the partners should pay the partnership 
 debts from certain moneys in his hands. 
 The amount of the partnership's debts was 
 not fixed. The court held the award suffi- 
 ciently, certain. " Foraught'we can see or 
 is averred, the debts due in the case before 
 us might be quite easy of liquidation — 
 
 696 
 
Award Final and Certain. ARBJTRA TION. Need not Specify all Matters. 
 
 Award need not Specify all Matters Submitted. — Under a sub- 
 mission of several matters an award is not uncertain because it 
 did not pass upon each matter separately, but embodies them all 
 in one general award, unless the submission specially or impliedly 
 
 perhaps were agreed on by the parties; 
 and if a. thing extrinsic, ordered to be 
 done by an award, may be certain, the 
 rule now is to intend that it is certain 
 till the contrary appear by averment." 
 Case V. Ferris, 2 Hill (N. Y.), 75- And 
 seeByers v. Van Deusen, 5 Wend.(N. Y.) 
 268. Compare Colcord v. Fletcher, 50 Me. 
 398. 
 
 Where an award ordered a quitclaim 
 of all defendant's right and title to all 
 lands which he had heretofore deeded or 
 attempted to deed to plaintiff, it was held 
 to include a fifty-acre lot which defend- 
 ant had formerly conveyed to plaintiff 
 under condition that he should not come 
 into possession until after the decease of 
 defendant, as there was no other land 
 attempted to be conveyed to which the 
 award could refer. Akely v. Akely, 16 
 Vt. 450. 
 
 An award directing the payment of a 
 specific sum is final and sufiicient, with- 
 out directing a release from the party to 
 whom it is paid.' A discharge from the 
 defendant will be presumed from the 
 payment of the sum awarded. M'Kin- 
 strey v. Solomons, z Johns. (N. Y-) 57; 
 AJirmeJ, 13 Johns. (N. Y.) 27; Byers v. 
 Van Deusen, 5 Wend. (N. Y.) 268. 
 
 An award for a sum of money in gross, 
 where several matters have been sub- 
 mitted, will be good. It will be supposed 
 that all matters have been considered. 
 Strong w. Strong, g Cush. (Mass.) 560; 
 Shirley v. Shattuck. 4 Cush. (Mass.) 470; 
 Biglow V. Maynard, 4 Cush. (Mass.) 317; 
 Harden v. Harden, II Gray (Mass.), 435; 
 Dickerson w. Tyner, 4 Blackf. (Ind.) 253; 
 Emery v. Hitchcock. 12 Wend. (N. Y.) 
 156; Darge v. Horicon Mining Co., 22 
 Wis. 691. 
 
 In an action for trespass upon real 
 estate, caused by a dispute upon a bound- 
 ary-line, the arbitrators found the title of 
 the land trespassed upon to be va the 
 plaintiff and assessed damages. Held, 
 that it was not necessary for them to fix 
 the boundary-line, and that the award 
 was sufficiently certain. Ballard v. 
 Mitchell, 8 Jones L. (N. Car.) 153. 
 
 And where in such a case the award 
 decided that there was no trespass, the 
 award was held to be certain. Harral- 
 son V. Pleasants. Phill. L. (N. Car.) 365. 
 
 The question of overflowing lands by 
 a mill-dam having been submitted to ar- 
 
 bitration, an award that the owner of 
 the dam pay to the owner of the land a 
 specified sum annually " for each year 
 he keeps his mill-dam up to a certain 
 point indicated by the arbitrators on a 
 certain stump," included the right of the 
 dam owner to raise the water to the 
 height indicated by the arbitrators. Sit- 
 ton V. Cureton, 72 Ga. 207. 
 
 Where the award in partnership mat- 
 ters failed to state in what proportions 
 certain amounts should be divided be- 
 tween the partners the courts refused to 
 annul the award for uncertainty, it being 
 held that in the absence of proof to the 
 contrary the partners were supposed to 
 be entitled to equal shares in the pro- 
 ceeds of the partnership, Henrickson v. 
 Reinbach, 33 111. 299. 
 
 An award giving D. the sole posses- 
 sion "of all the interests which he and B 
 then jointly had in a certain brewery 
 near the village of P." was upheld, the 
 description of the brewery being suffi- 
 ciently certain, as it did not appear that 
 the parties had joint interest in any other 
 brewery, or that there was another brew- 
 ery in the vicinity. Byers v. Van Deu- 
 sen. 5 Wend. (N. Y.) 268. 
 
 The submission described a certain lot 
 in dispute as " lying in the city of B." 
 The arbitrator in the award referred to 
 it as " lying partly in the city of B. and 
 partly m B, county." Held to be suffi- 
 ciently certain. Northern Centr. R. Co. 
 V. Canton Co.. 24 Md. 492. 
 
 An award deciding upon the property 
 in a certain fence gave the stakes and 
 rails put into the fence by a former owner 
 to one of the parties. Held to be suffi- 
 ciently certain to give the residue of the 
 fence to the other party. Whittemore v. 
 Mason, 14 111. 392. 
 
 If an award settling a corner and lines 
 between two tracts of land shows that 
 two points, one in each of two lines, are 
 ascertained, they will be regarded as 
 fixed and certain, unless the record shows 
 that they are uncertain; and if the award 
 gives directions to ascertain where the 
 corner which must settle the dispute is 
 located by the award, and in such a man- 
 ner that any competent surveyor could 
 from such award find the corner and 
 lines, the award is certain. Rogers v. 
 Corrothers, 26 W. Va. 238, 248; Craw- 
 ford V. Orr, 84 N. Car. 246. 
 
 697 
 
Award Final and Certain. ARBU'RA TION. Award in the Alternative. 
 
 requires a separate award for each matter or one or more of 
 them.i 
 
 Title to Real Estate. — Where an award decides upon the title 
 of real estate it is sufficient that it decides to whom it belongs. 
 It need not order a conveyance to make it certain.* 
 
 Award in the Alternative. —An award is not void for uncertainty 
 because it is in the alternative and contingent, nor because one of 
 t'he alternatives requires the party to do an act in conjunction 
 with others not parties to the submission and over whom the 
 award has no Control.^ 
 
 Certain as to Subject-matter. — An award to be valid must de- 
 
 1. Stearns i/. Cope, log 111. 340; Van- 
 nah V. Carney, 6g Me. 221; Blackwell v. 
 G'oss, 1 16 Mass. 394 ; Shirley v. Shattuck, 
 4 Cush. (Mass.) 470; Strong v. Strong, g 
 Cush. (Mass.) 560; Houston v. Pollard, 
 9 Mete. (Mass.) 164; Bigelow v. Maynard, 
 4 Cush. (Mass.) 317; Mickles v. Thayer, 
 14 Allen (Mass.), 114; Emery v. Hitch- 
 cock, 12 Wend. (N. Y.) 156; Morewood 
 ■V. Jewett, 2 Robt. (N. Y.) 496; Wood v. 
 Auburn, etc., R. Co., 8 N. Y. 160; Brewer 
 ■V. Bain, 60 Ala. 153; Shackelford v. Pur- 
 ket, 2 A. K. Marsh. (Ky.) 435; o. c, 12 
 Am. Dec. 422; Bowman v. Downer, 28 
 Vt. 532; Soper V. Frank, 47 Vt. 368; 
 Heckers !<. Fowler, 2 Wall. (U. S.) 123; 
 Karthaus v. Ferrer, i Pet. (U. S.) 222. 
 Compare Murray v. Mills, I'Neb. 456. 
 
 Neither is it necessary that the arbitra- 
 tors should go into particulars and give 
 reasons for their award. A simple an- 
 nouncement of the result of their inves- 
 tigation is sufficient, although it will not 
 invalidate the award when the reasons 
 are inserted. Patton v. Baird, 7 Ired. 
 Eq. (N. Car.) 255; Osborne v. Calvert, 
 83 N. Car. 365; Keener v. Goodson, 8g 
 N. Car. 273; Clanton v. Price, 90 N. Car. 
 96; Blossom V. Van Amringe, 63 N. Car. 
 65; Lamphire v. Cowan, 39 Vt. 420; 
 Stewart v. Cass, 16 Vt. 663; s. c, 42 Am. 
 Dec. 534; McKnight v. McCullough, 21 
 Iowa, III; Vaugjian v. Smith, 6g Ala. 
 92; Sides V. Brendlinger, 14 Neb. 491. 
 
 A statement in the award that all the 
 necessary conditions have been fulfilled 
 is not necessary to make it certain, as 
 that notice has been given of time and 
 place of the meetings. Rigden v. Mar- 
 tin, 6 Har. & J. (Md.) 403; Upshaw v. 
 Hargrove, 14 Miss. 286; Mayor of N. Y. 
 •V. Butler, i Barb. (N. Y.) 325. 
 
 Or that the arbitrators were sworn, or 
 that the parties appeared before them. 
 Negley v. Stewart, 10 S. & R. (Pa.) 207; 
 Houghton V. Burroughs, 18 N. H. 499. 
 
 Or that they heard all the parties. 
 Yates V. Russell, 17 Johns. (N. Y.)46i; 
 Shultz V. Halsey, 3 Sandf. (N. Y.)405; 
 
 Warner v. Collins, 135 Mass. 26; May- 
 nard V. Frederick, 7 Cush. (Mass.) 247; 
 Ackley v. Finch, 7 Cow. (N. Y.) 290. 
 Compare Short v. Pratt, 6 Mass. 4g5; Blin 
 V. Hay, 2 Tyler (Vt.), 304; Bixford v. 
 Nye, 20 Vt. 132. 
 
 Or that they acted within the scope of 
 their authority. Hoffman v. Hoffman, 
 26 N. J. L. 175. 
 
 They need not make the evidence part 
 of their award, although requested to do 
 so. Allen v. Miles, 4 Harr. (Del.) 234; 
 State V. Petticrew, ig Mo. 373. 
 
 Nor that all the legally-offered evi- 
 dence was received. Leominster z;. Fitch- 
 burg, etc., R. Co., 7 Allen (Mass.), 38. 
 
 An award in a dispute about a )ot is 
 not void for uncertainty because it does 
 not appear on the face of the award that 
 the lot described in it is the identical lot 
 of the submission. This may be proved 
 on trial. Rogers v. Tatum, 25 N. J. L. 
 281. 
 
 An award which fixes with accuracy 
 the terminal points of a disputed line 
 between adjacent land-owners, and its 
 course and distance, is not obnoxious to 
 the allegation of uncertainty. A simple 
 response to the inquiry submitted, in 
 analogy to a jury verdict, is sufficient. 
 Submission and award constitute an 
 executory agreement, and certainty to a 
 common intent is all that is required in 
 the award to admit of its specific en- 
 forcement. Crawford v. Orr, 84 N. Car. 
 246. 
 
 2. Crabtree v. Green. 8 Ga. 8. And 
 see Blossom v. Van Amringe, 63 N. Car. 
 
 65. 
 
 3, Thornton v. Carson. 7 Cranch. (U. 
 S.) 596; Com. V. Pejepscut Proprs., 7 
 Mass. 399; Hanson v. Webber, 40 Me. 
 194: Williams v. Williams, 19 Miss. 3g3; 
 Curtis V. Gokey, 68 N. Y. 300. 
 
 And where one part of an award in 
 the alternative is impossible, the other 
 part Yvrill be good. Clement v. Corn- 
 stock, 2 Mich. 359; McDonald v. Arnout, 
 14 111. 58. 
 
 698 
 
Award Final and Certain. ARBITRA TJON. Boundaries— Persons — Time. 
 
 scribe the things awarded with sufficient certainty to make it pos- 
 sible to identify them. So is an award to finish "the house" or 
 pay a certain sum for " the stone," without further description of 
 the house or the stone, void for uncertainty.'^ 
 
 Certaifity about Boundary-lines. — In general it has been said 
 that an award concerning the title of real estate or boundary-lines 
 is sufficiently certain only where it would enable an officer to give 
 possession of the premises, and to designate the limits by metes 
 and bounds. If it falls short of this it is indecisive of the matter 
 in issue, and therefore bad.* 
 
 Certainty as to Persons. — The award must be certain as regards 
 the persons who are required to do an act and those who are to 
 be benefited by it. But it need not indicate them by name. 
 Any description through which they can be readily ascertained 
 will suffice; So where an amount was awarded to the executors 
 of J. G. the award was held to be certain, it being easily ascer- 
 tained who the executors are.^ 
 
 As to Time. — An award must also be certain as to the time of 
 pefformance. Where arbitrators in their award decreed that a 
 
 1. Schuyler v. Vanderveer, 2 Cai. 
 <N. Y.) 235; Sicard v. Peterson, 3 S & 
 k. (Pa.) 468; Thomas v. Molier, 3 Ohio, 
 266. 
 
 Also an award ordering a party to de- 
 liver "the said farm" without further de- 
 scribing the farm. Brown v. Hankerson, 
 3 Cow. (N. Y.) 70. 
 
 Or an award of three quarters of the 
 whole section of certain land to be " taken 
 of the upper part" of said land. Duncan 
 V. Duncan, i Ired. (N. Car.) 466. 
 
 And an avvard ordering one party Ifo 
 give security to the other if required 
 ■without further specifying the Becurity. 
 Jackson v. De Long, 9 Johns. (N. Y.) 
 43; Barnet v. Gilson, 3 S. & R. (Pa.) 
 340. And see Stanley v. Chappell, 8 
 Cow. (N. Y.) 235; Peck v. Wakeley, 2 
 McCord (S. Car.), 279. Compare Cutter 
 ■V. Cutter, 48 N. Y. Super. Ct. 470. 
 
 An award of a sum of money to the 
 plaintiff "at the time the plaintiff will 
 make a correct deed of conveyance to 
 the heirs of A. for two acres and a half 
 of land," without further description of 
 'the land, is uncertain and void. Murray 
 V. Bruner, 6 S. & R. (Pa.) 276. 
 
 Also an award that one party shall 
 "deliver or account for on "oath all 
 bonds, notes, bills, or other securities 
 heretofore given to them as collateral 
 security," without specifying what bonds 
 or other securities were either conveyed 
 or pledged as collateral security. Lyle 
 ■V. Rodgers, 5 Wheat. (U. S.) 394. 
 
 An award directed one of the parties to 
 surrender a bond bearing a certain date, 
 but without giving the names of the par- 
 
 699 
 
 ties to the bond, or any other particulars 
 by which it could be identified. Held to 
 be void. Sheppard v. Stites, 7 N. J. L. 
 90; M'Keen z/, Allen, 7 N. J. L. 506. 
 
 Also is an award void determining 
 certain matters now in dispute and unde- 
 termined between the parties, without 
 stating these matters and accounts. Tur- 
 pln V. Banton, Hard. (Ky.) 312. 
 
 2. Morse on Arb. 428; Aldrich v. Jes- 
 siman, 8 N. H. 516; Rogers v. Corro- 
 ihers, 26 W. Va. 238, 248; Crawford u. 
 Orr, 84 N. Car. 246. 
 
 So is a boundary-line fixed from one 
 known monument to another by land of 
 one of the parties uncertain. Clark u. 
 Burt, 4 Cush. (Mass.) 396. 
 
 Or when one of the monuments named 
 in the award is by parol evidence proved 
 not to exist. Giddings v. Haddaway, 28 
 Vt. 342. 
 
 But an award ordering a conveyance of 
 real estate up to the original claim line iS 
 not void for uncertainty, as such a line 
 may be ascertained. Williams v. War- 
 ren, 21 111. 541. 
 
 3. Grier v. Grier, I Dall. (U. S.) 173. 
 But where claims against a party both 
 
 in his own and in a representative char- 
 acter are submitted, and the award does 
 not distinctly state what sums are to be 
 paid by such party in his representative 
 character and those for which he is per- 
 sonally bound, the award will be void. 
 Lyle V. Rodgers, 5 Wheat. (U. S.) 394; 
 Hoffman v. Hoffman, 26 N. J. L. 175; 
 Dorsey v. Dorsey, 11 Gill & J. (Md.) 299. 
 Compare Strong v, Beronjon, 18 Ala. 
 16S. 
 
Award Final and Certain, 
 
 ARBITRA TION. 
 
 Amounts- 
 
 certain sum should by A be placed to the credit of B, provided 
 B should give or cause to be given a clear, unincumbered, and 
 satisfactory title of certain lands to A, without limiting the time 
 in which such title should be given, leaving the question whether 
 this credit is to be allowed or disallowed indefinitely open, the 
 award was held not to be final, and therefore void.^ 
 
 Amount. — The amount awarded must also be certain to make 
 the award valid. Awarding the balance due on a certain account 
 after deduction of an unsettled account is uncertain.* 
 
 But the award will not be uncertain where certain amounts to be 
 paid are not named ; but where it sufficiently indicates the means 
 by which the amount can be ascertained. " It is not indispensable- 
 that the award should state in words or figures the precise amount 
 to be paid. If nothing remains to be done in order to render it 
 certain and final but a mere ministerial act or an arithmetical 
 calculation, it will be good."* 
 
 1. Carnochan v. Christie, ii Wheat. 
 (U. S.)446. Compare Russell on Arb. 292. 
 
 All award in an action against the su- 
 pervisors of a township, that the defend- 
 ant pay the plaintiff a certain sum "as 
 soon as the defendant. shall be in pos- 
 session of the township's funds to do so," 
 is bad. because the money is to be paid 
 in future, and on a contingency. Will- 
 iams V. Landon, 14 S. & R. (Pa.) 399; 
 Evans v. Sheldon, 69 Ga. 100. 
 
 Where an action on an account was 
 submitted to arbitration, and one of the 
 defences was the statute of limitations, 
 and the arbitrators framed their award 
 so that it was left uncertain whether the 
 last payment was made within the time 
 required to bring it within the statui?. the 
 award was held to be void. Doyle v. 
 ReiUy, 18 Iowa, lo8. 
 
 But if the award be without a date, and 
 the arbitrator direct a party to do a thing 
 a certain number of days after the date 
 of the award, this will not be so uncer- 
 tain as to be invalid; for the date will 
 be computed from the delivery of the 
 award. Russell on Arb. 292. 
 
 An award ordering a certain sum to 
 be paid, without specifying the time of 
 payment, is not void for uncertainty. 
 The money becomes payable immedi- 
 ately. Blood V. Shine, 2 Fla. 127. See 
 Soper V. Frank, 47 Vt. 368. 1 
 
 An award providing for the payment 
 of a stipulated sum annually by one of 
 the parties to the other for the latter's 
 life is valid. Remelee v. Hall, 31 Vt. 
 582; s. c. 76 Am. Dec. 140. 
 
 2. Zerger v. Sailer, 6 Binn. (Pa.) 24; 
 Ingraham v. Whitmore, 75 III. 24. 
 
 So is an award for a certain sum less 
 an allowance for hauling 620 staves, 
 
 without naming the amount so to be de- 
 ducted, void for uncertainty. Parker v. 
 Eggleston, 5 Blackf. (Ind.) 128. 
 
 Also an award giving to one of the 
 panies costs of reference, costs of court, 
 and all costs paid by plaintiff. Leomin- 
 ster v. Fitchburg, etc., R. Co., 7 Allen 
 (Mass.), 38. 
 
 An award is void for uncertainty which 
 declares that A shall pay to B the sum 
 of money which B paid to A for the pur- 
 chase of one of two horses which were 
 sold together for $300, aUhough it was 
 averred that the horse was 'in fact sold 
 for $150. Howard v. Babcock, 21 111. 
 
 259- 
 
 3. Kyd on Awards, 126. 198. 216; 
 Russell on Arb. 297; Waite v. Barry. 13 
 Wend. (N. Y.) 377; Brown v. Hanker- 
 son, 3 Cow. (N. Y.) 72; Butler v. Mayor 
 of N. Y., I Hill (N. Y.), 489; Gudg^U v. 
 Pettigrew, 26 111. 305; Carsley v. Lind- 
 say, 14 Cal. 390; Wilson v. Brown. 82 
 Pa. St. 437; Warder v Whitall. i N.J. 
 L. 84; Colcord V. Fletcher, 50 Me. 398; 
 Chase V. Jefts, 51 N. H. 491; Bush v. 
 Davis. 34 Mich. 190. 
 
 And where the award provides for the 
 correction of any mistake in the addition 
 or calculation of interest it will not in- 
 validate the award. McKinstry v. Solo- 
 mons. 2 Johns. (N. Y.) 57. 
 
 An award ordering the payment of a 
 certain sum with interest is certain. 
 Emery v. Hitchcock, 12 Wend. (N. Y.) 
 156; McKinstry v. Solomons, 13 Joljns. 
 (N. Y.) 27; White V. Jones, 8 S. & R. 
 (Pa.) 349; Skeels v. Chickering, 7 Mete. 
 (Mass.) 316. 
 
 But the award will be void for uncer- 
 tainty where neither the amount is named 
 nor sufficient means are indicated by 
 
 700 
 
Award Final and Certain, 
 
 ARBITRATION. 
 
 Uust be Mutual. 
 
 Arbitrators can Reserve no Authority. — In making the award the 
 arbitrator may not reserve to himself the authority to decide 
 upon some matter after he has deHvered his award, or to delegate 
 in his award the decision of some difificult question to another, 
 much less to one of the parties. Such an award is not final.^ 
 
 Ministerial Acts. — This rule does not refer to acts of a purely 
 ministerial character.* 
 
 20. Awards must be Mutual.- — They must not be on one side only. 
 They are void unless something be arbitrated for the defendant's 
 benefit as well as for the plaintiff's. Less strictness and critical 
 nicety 's, however, now used in construing these instruments than 
 formerly. It is not now necessary, whatever it may have been, 
 that an award should express that a sum awarded to be paid or 
 an act to be done in favor of one of the parties shall be in satis- 
 faction, or that it should contain any equivalent terms ; a dis- 
 charge to the other must necessarily be presumed from the pay- 
 ment of the sum or the performance of the act.^ 
 
 which it can be found; and those means 
 
 , should be of such a nature that no dis- 
 pute can arise concerning it. Waite v. 
 Barry, 12 Wend. (N. Y.) 377; Fletcher 
 V. Webster, 5 Allen (Mass.), 566; Spald- 
 ing z/. Irish, 4 S. & R. (Pa.) 322; Hays v. 
 Hays, 2 Ind. 28; Alexander v. M'Near, 
 28 Fed. Rep. 403. 
 
 Where in a pending case the arbitra- 
 tors award that one of the parties shall 
 pay the costs of the suit, without ascer- 
 taining the amount, it is sufficiently cer- 
 tain, as the amount can be ascertained 
 from the court. Macon v. Crump, i Call. 
 (Va.) 575; Nichols v. Rensselaer Mat. 
 Ins. Co., 22 Wend. (N. Y.) 125; Brown v. 
 Warnock, 5 Dana (Ky.), 492; Wright v. 
 Smith, ig Vt. no; Boughton w. Sea- 
 mans. 16 N. Y. Supr. Ct. 392; Benson v. 
 White, loi Mass. 48. 
 
 1. Archer v. Williamson, 2 Har. & G. 
 
 <(Md.) 62; Calvert v. Carter, 6 Md. 135; 
 Byars v. Thompson. 12 Leigh. (Va.) 550; 
 s. c, 37 Am. Dec. 680; Porter v. Scott, 
 7 Cal. 312; Sutton V. Horn, 7 S. & R. 
 (Pa.) 228; Kingston v. Kincaid, i Wash. 
 (U. S ) 448; Levezey v. Gorgas, 4 Dall. 
 (U. S.) 71. 
 
 An award which ordered that A, be- 
 sides paying a certain sum to B, should, 
 beg B's pardon in such manner and 
 
 • such place as B should appoint, was 
 held void as to the latter direction be- 
 cause giving B the power to determine 
 the time and place was making him a 
 judge in his own cause, which the arbi- 
 trator ought to have determined. Glover 
 V. Barrie, I Salk. 71. 
 
 An award which is made subject to 
 future alterations for correction of errors 
 
 .upon request of the parties is not final 
 
 and void. McCrary v. Harrison. 36 Ala. 
 577; Hooker v. Williamson, 60 Tex. 524. 
 
 8. Owen v. Boerum, 23 Barb. (N. Y.) 
 187; Carter v. Calvert, 4 Md. Ch. 199; 
 Archer z/. Williamson, 2 Har. & G. (Md.) 
 62. 
 
 So where the award provided that a 
 subsequent survey should fix the bound- 
 ary-line of tracts of land in dispute, the 
 award was held to be valid. Galloway v. 
 Webb, Hard. (Ky.) 318. 
 
 An award provided that by one of the 
 parties a deed should be executed suffi- 
 cient in the opinion of the supreme court 
 or of the attorney-general to bar them 
 from any future claims to the land con- 
 veyed. The award was held to be valid. 
 Com. v. Pejepscut Prop'rs, 7 Mass. 399. 
 
 3. Russell on Arb. 302, 303; Morse on 
 Arb. 377. 378; Doolittle v. Malcomb, 8 
 Leigh. (Va.) 608; s. c, 31 Am. Dec. 671. 
 
 Where an award ordered that in settle- 
 ment of some disputed accounts B. should 
 pay to S. the balance found due on these 
 accounts, the award was objected to as 
 not "mutual." The court said: "The 
 rule is that an award must be mutual. 
 But the meaning of that is that the award 
 must be so constructed as not. to leave 
 him who is to pay liable to be sued for 
 the same cause for which he is awarded 
 to pay; but here it sufficiently appears 
 by looking into the bill, pleadings, refer- 
 ence, and award for what they order this 
 sum to be paid; and then it follows that 
 if he should be again sued for the same 
 cause, he may produce these proceedings 
 and show he has already discharged 
 himself of these demands. It is not 
 necessary that they should have awarded 
 anything to be paid or done by S." 
 
 701 
 
Award must be Mutual. 
 
 ARBITRATION. 
 
 mutuality in Award itself. 
 
 To be mutual an award need not require from both parties the 
 same thing or things which may be enforced by the sanie legal pro- 
 cess. One may be required to pay a sum of money which can be 
 enforced by execution, and the other to execute a certain convey- 
 ance which can be enforced by attachment ; but if the court can- 
 not enforce both things it will enforce neither.^ 
 
 Mutuality Must not Rest on Outside Circumstances. — The mutual- 
 ity must be in the award itself, and not rest upon circumstances 
 outside of the award. An award which directed the payment by R. 
 
 Blackledge v. Simpson, 2 Hayw. (N. Car.) 
 30; o. c, 2 Am. Dec. 614; Borret v. 
 Patterson, Taylor (N. Car.) 37; s. c, i 
 Am. Dec. 576; Purdy w. Delavan, i Cai. 
 (N. Y.) 304; Cox V. Jagger, 2 Cow. (N. 
 Y.) 638; s. c, 14 Am. Dec. 522; McKin- 
 stry V. Solomons, 2 Johns. (N. Y.) 57; 
 Weed V. Ellis, 2 Cai. (N. Y.) 254; Spof- 
 ford V. Spofford, 10 N. H. 254; Gibson 
 V. Ppwell, 13 Miss. 712; McKeen v. Oli- 
 phant, 18 N. J. L. 442; Power w. Power, 
 7 Watts (Pa.), 205; Karthaus v. Ferrer, i 
 Pet. (U. S.) 222. 
 
 An award maybe mutual by implica- 
 tion. So where one was ordered to pay 
 for certain oxen, it was held to imply 
 that the oxen were the property of the 
 other party. Hanson v. Webber, 40 
 Me. 194. And see Reynolds v. Reynolds, 
 15 Ala. 398; Gordon v. Tucker, 6 Me. 
 247; Weed V. Ellis, 3 Cai. (N. Y.) 254; 
 Gaylord v. Gaylord, 4 Day (Conn.), 422. 
 
 In a dispute about a boundary line the 
 arbitrator ordered only the party through 
 whose land the line fixed by the award 
 runs to execute a release. The award was 
 held not to be void for lack of mutuality. 
 Jones V. Boston Mill Corp., 6 Pick. 
 (Mass.) 148. 
 
 But an order to an heir to take real 
 estate and to pay out a certain sum of 
 money to the other heirs is not mutual 
 unless a conveyance of the real estate be 
 ordered to the other party. Miller v. 
 Moore, 7 S. & R. (Pa.) 164. 
 
 And where one was ordered to pay a 
 certain sum for stock held by the other 
 party without an order for the transfer of 
 the stock, the award was held not to be 
 mutual and void. I71 ?-<• Williams, 4 Den. 
 (N. Y.) 194. 
 
 1. Kunckle v. Kunckle, i Dall. (U. S.) 
 364 ; Munroe v. Alaire, 2 Cai. (N. Y.) 
 320. 
 
 If an award directs the performance of 
 acts by both parties, and the award is void 
 as to the acts to be done by one party, 
 and the void act is the consideration or 
 recompense of the thing to be done by the 
 other party, the whole award will be void 
 for lack of mutuality.' Nichols v. Rensse- 
 laer Co. Ins. Co., 22 Wend. (N.*Y.) 125. 
 
 An award against a stranger to the ar- 
 bitrator is, of course, not binding on him; 
 and when one party cannot enforce an 
 award so given ja his favor,^the part of 
 the award which operates against him 
 will also be void as not mutual. Brazil 
 V. Isham, i E. D. Smith (N. Y.) 437. 
 
 Where a person submits to arbitration 
 on behalf of another and without author- 
 ity, the award following will not be mutual; 
 and the party in whose behalf the matters 
 were submitted has no right to ratify the 
 submission after the award is rendered, 
 if it should be rendered in his favor. Fur- 
 bish V. Hall, 8 Me. 315; Belmont v. Ty- 
 son, 3 Blatchf. (U. S.) 530. 
 
 Although an award under a submission 
 by two parties, one of whom is incompe- 
 tent to submit, may be void for mutual- 
 ity. Furbish v. Hall, 8 Me. 315. 
 
 It has been held that when the fact of 
 such incompetency was known to the 
 other party at the time of the submission 
 such party will be bound by it. Palmer 
 V. Davis, 28 N. Y. 242; Smith v. Van 
 Nostrand, 5 Hill (N. Y.), 419; Horrell v. 
 M'Alexander, 3 Rand. (Va ) 94. 
 
 Where one partner is ordered to pay the 
 partnership's debts to a stranger to the 
 arbitration, the award will be mutual as 
 between the parties, although the credit- 
 or's right to look to either one of them 
 for payment is not affected by it. Lam- 
 phire v. Cowan, 39 Vt. 420. 
 
 Where the submission gives the arbi- 
 trator power to order mutual releases, an 
 award ordering several releases where one 
 of the parties to the arbitration consists of 
 several individuals was upheld. Smith 
 V. Demarest, 3 Halst. (N. J.) 195. 
 
 A submission by D. & M. on one side 
 and W. and his partner on the other side 
 authorizes an award against W. only. 
 Dater j/. Wellington, i Hill (N. Y.). 319; 
 Fidler v. Cooper, 19 Wend. (N. Y.) 285. 
 
 Where an award ordered that one party 
 should execute a general release at a cer- 
 tain date and that the other party should 
 execute a like release after the first one 
 had been executed, the award was upheld 
 as mutual. Munroe v. Alaire, 2 Cai. (N. 
 Y.) 327- 
 
 702 
 
Award must be Entire, 
 
 ARBITRATION. 
 
 Extrinsic Documents. 
 
 of a sum of money to one of his joint creditors was held not to be 
 mutual. The court held that "though payment of the award 
 would operate to discharge R., yet his discharge would not rest 
 upon the award, but upon the prior and contingent right of O. as 
 one of the joint creditors to receive payment of the debt for him- 
 self and his co-creditors. Thus it would seem that no protection 
 or benefit whatever could result to R. from the submission or 
 award." '■ 
 
 21. The Award must be Entire. — According to the English rule 
 an award must be entire in itself;'-* but this strict rule has been 
 much relaxed in the United States.* 
 
 Award may Refer to Extrinsic Documents. — An award may refer 
 to documents, books, accounts, or any other instrument outside of 
 the award, provided these instruments are sufficiently described in 
 the award to be easily identified and the parties have access to 
 them.* 
 
 1. Onion v. Robinson, 15 Vt. 510. 
 
 2. Russell on Arb. 369 et seq. 
 Matters between two parties A and B 
 
 were submitted, and subsequently, after 
 the reference had begun, C was also made 
 a party to the arbitration. The arbitrator 
 made two awards, in one of which he 
 awarded that A was indebted to C, with- 
 out inentioning B ; in the other he award- 
 ed that A was indebted to B, without men- 
 tioning C. Both awards were held to be 
 bad because there was no one award de- 
 termining all the matters in dispute. 
 Winter v. Munton, 2 Moore, 723. See 
 Davis V. Dyer, 54 N. H. 146. 
 
 3. Morse on Arb. 370. 
 
 Several distinct matters in difference 
 between two parties were submitted to 
 arbitration, the parties agreeing to abide 
 by " the award." The arbitrators found 
 separately upon each matter, but embod- 
 ied their separate findings in one appa- 
 rently single instrument, so that the one 
 document contained what in terms pur- 
 ported to be seven different awards. The 
 court held that these awards are but the 
 detail of " the award " which the submis- 
 sion seems to have contemplated, and 
 we do not perceive how the award is in 
 any sense invalidated because the deci- 
 sion upon each claim is stated in detail. 
 Kendrick v. Tarbell, 26 Vt. 416. 
 
 Two parties submitted to arbitration 
 two questions: 1st, the amount which had 
 been actually paid upon a certain con- 
 tract, and to indorse the amount so found 
 on said contract; 2d, of and concerning 
 all actions, debts, demands, etc. The ar- 
 bitrators indorsed upon the contract the 
 payment of a certain sum, and delivered 
 their award in regard to the other mat- 
 ters. The court held (jier Paige, J.) that 
 
 the indorsement on the contract may be 
 regarded as a part of the principal award, 
 the indorsement and the award being si- 
 multaneous acts of the arbitrators, and 
 {per Foot, J.) "It appears to me that 
 there is no room to doubt that the parties 
 not only submitted two distinct matters, 
 but provided for separate awards upon 
 them. The language of their bonds is 
 clear and explicit on this point. It is 
 unreasonable that the parties may not 
 provide for separate awards." The award 
 was upheld. Ott v. Schroeppel, 5 N. Y. 
 484, 490; Fay V. Bond, i Allen (Mass.), 
 211. 
 
 Arbitrators, after completing their 
 award, added an addendum relating to 
 the legality of the contract, and providing 
 that if the arbitrators should become sa- 
 tisfied " that no recovery can be had un- 
 der such a contract, this award is to be 
 changed and an award given that neither 
 party is entitled to recover from the 
 other." Held, that the addendum did not 
 avoid the award, but had to be taken as 
 a part of it, although the award with the 
 addendum was void for uncertainty. 
 Rhodes v. Hardy, 53 Miss. 587. 
 
 4. Henricksen w. Reinback, 33 III. 299; 
 Farr v. Johnson, 25 111. 522; Butler v. 
 Mayor of N.Y., i Hill (N. Y.), 489; Hol- 
 lingsworth v. Pickering, 24 Ind. 435; 
 Hays V. Miller, 12 Ind. 187; Clement v. 
 Comstock, 2 Mich. 359; Coxe v. Gent, i 
 McMull. (S. Car.) 302; Santee v. Keister, 
 6 Binn. (Pa.) 36; Bowman v. Downer, 28 
 Vt. 532; Benson w. White, loi Mass. 48; 
 Kingston v. Kincaid, i Wash. (U. S.) 
 448. 
 
 An award of the " Peter tract," the 
 " Riley tract," and the " Mill tract" was 
 held sufficiently certain where said tracts 
 
 703 
 
Award in must be Possible. ARBITRA TION. Publication of the Award. 
 
 Awards under Statute. — But an award on which, under a statu- 
 tory submission, a judgment is to be rendered must be complete 
 in itself, and may not depend on extrinsic documents.^ 
 
 22. Must be Possible. — The award must be possible. If the arbi- 
 trator awards a thing impossible in itself, as to do a thing in the 
 past or to turn the course of a river, the award will be void. The 
 impossibility must, however, appear on the face of the award. To 
 order a party to pay a sum of money which he does not possess 
 is, however, not such an impossibility which will avoid the 
 award.'-* 
 
 23. Publication of the Award. — If the submission so requires, an 
 award must be published before it becomes effective.^ 
 
 It is impossible to give a stated rule by which to determine what 
 is a sufficient publication. Anything done which enables the 
 parties to receive a knowledge of its contents may be called a 
 publication.* 
 
 ■were well described in the deeds. Farris 
 •V. Caperton, i Head. (Tenn.) 606. 
 
 And so was an award upheld which 
 ordered that A should make and execute 
 a deed of all the lands he holds by a cer- 
 tain conveyance of B. Whitcomb v. Pres- 
 ton, 13 Vt. 53. 
 
 A marginal note in the award does not 
 make it void. The note is to be consid- 
 ered as part of the award, and must re- 
 ceive the same construction as if it had 
 been inserted in the body of the instru- 
 ment. Piatt V. Smith, 14 Johns. (N. Y.) 
 368. 
 
 1. Day V. Lafiin, 6 Mete. (Mass.) 280. 
 
 2. Russell on Arb. 305; Young z-. Reu- 
 ben, I Dall. (U. S.) Ilg. 
 
 An award ordering a stranger to the 
 submission to do an act is void for im- 
 possibility, as the arbitrator has no power 
 over such stranger. Martin v. Williams, 
 13 Johns. (N. Y.) 264; Kratzer v. Lyon, 
 5 Pa. St. 274; Brazil v. Isham, I E. D. 
 Smith (N. Y.). 437. 
 
 So is an award ordering a thing to be 
 done which is illegal in itself void. May- 
 bin V. Coulon,.4 Dall. (U. S.) 298; Yea- 
 mans V. Yeamans, 99 Mass. 585. 
 
 3. Parsons v. Aldrich, 6 N. H. 264; 
 Denman v. Bayless, 22 111. 300. 
 
 4. Thompson v. Mitchell, 35 Me. 281; 
 Knowlton v. Homer, 30 Me. 552. 
 
 So far as the validity of the award is 
 affected, it will in general be considered 
 as "published" as soon as the arbitrator 
 has done some act whereby he becomes 
 functus officio, and has declared his final 
 mind and can no longer change it; that 
 is, as soon as he has made a complete 
 award. Russell on Arb. 255. 
 
 Provision for a publication of the 
 award in the submission is said not to 
 
 imply a formal notification to the parties. 
 Hunt V. Wilson, 6 N. H. 36. 
 
 Reading the award to the parties was 
 held to be a publication. Rundell v. La 
 Fleur, 6 Allen (Mass.), 480; Perkins v. 
 Wing, 10 Johns. (N. Y.) 143. 
 
 The delivery of a copy of the award is 
 considered a publication. Low v. Nolte, 
 16 111. 475- 
 
 An award executed in duplicate and 
 delivered to each of the parties is pub- 
 lished. Plummer v. Morrill, 48 Me. 184. 
 
 The delivery of the award to the pre- 
 vailing party, who gives notice to the 
 other party and demands payment, is a 
 sufficient publication. Knowlton v. Ho- 
 mer, 30 Me. 552; Rixford v. Nye, 20 Vt. 
 132. 
 
 An award which is to he returned into 
 court is published by readiag and filing 
 it in court. Den v. Curtis, i Halst. (N. 
 
 J-)4i5. 
 
 When the submission is silent about 
 the time when the award is to be made, 
 notice of the award must be given to both 
 parties. Francis v. Ames, 14 Ind. 251. 
 
 When an award is required to be under 
 seal a written notice to the parties of its 
 contents is a publication. Morse v. 
 Stoddard, 28 Vt. 445. 
 
 Where a submission required that the 
 award shall be published in ten days, it 
 was held sufficient that it was written, 
 signed, and witnessed at that time. Mc- 
 Clure V. Shroyer, 13 Mo. 104. 
 
 The question was about a boundary- 
 line, and the arbitrator fixed the line with 
 the assistance of the parties. Held, that 
 no further publication was necessary. 
 Jones V. Dewey, 17 N. H. 596. 
 
 Where copies of an award were de- 
 livered to the parties, but the arbitrator 
 
 704 
 
Award. 
 
 ARBITRATION. 
 
 Seliyery, 
 
 Delivery. — Unless the submission stipulates that the award 
 should be delivered at a certain date actual delivery is not neces- 
 sary. It will be sufficient if it is made and ready for delivery at 
 me day fixed by the submission. ^ 
 
 When the submission requires the award to be delivered noth- 
 ing short of actual delivery of the original award will satisfy the 
 requirement. ** 
 
 told them verbally that a correction may 
 possibly have to be made in a boundary- 
 line, upon consultation with the sur- 
 veyor, and he kept the original award for 
 that purpose and afterwards made the 
 correction and said nothing further about 
 it to the parties, the court held that the 
 written award had not been published. 
 Caldwell V. Dickinson, 13 Gray (Mass.), 
 
 365- 
 
 1. Rundell v. La Fleur, 6 Allen 
 ^Mass.), 480; Houghton v. Burroughs, 
 18 N. H. 499, Crawford v. Orr, 84 N. 
 Car. 246; Martin v. McCormick, 34 N. 
 f. L. 23; Boots V. Canine, 58 Ind. 450. 
 
 But it must be complete, and nothing 
 must remain to be done to it. Bloomer 
 V. Sherman, 5 Paige (N. Y.), 575; Wil- 
 son V. Wilson, I Saund. 327. 
 
 Where a submission required an award 
 to be ready at a certain date, it was not 
 called for until the day after, when it was 
 delivered, bearing the date of delivery. 
 The court held that it was, no objection 
 to the award that the day of its date was 
 a day later than that named, it not being 
 demanded before that time. Owen v. 
 Boerum, 23 Barb. (N. Y.) 1S7. 
 
 A submission required that the award 
 should be made and ready for delivery in 
 ninety days. Held, that if the award was 
 ready to be delivered on payment of the 
 arbitrators' fees within the time it was 
 within the provision of the submission. 
 Willard v. Bickford 39 N. H. 536. 
 
 Where the submission does not re- 
 quire the arbitrator to deliver the award, 
 both parties are bound to take notice of 
 it, and the party suing on it need not give 
 the other notice of the execution of the 
 award. Houghton v. Burroughs, 18 N. 
 H.-igg. Compare Woodbury z/. Northy, 
 3 Greenl. (Me.) 85; s. c, 14 Am. Dec. 
 214; Wright V. Smith, ig Vt. no. 
 
 And where one party fails to demand a 
 copy he cannot defeat the award by 
 showing'that if he had demanded a copy 
 within the time it would not have been 
 ready for him. Burnap v. Losey, i 
 Lans. (N. Y.) ni. 
 
 2. Russell on Arb. 256. 
 Although it is not necessary that a 
 
 - copy should be delivered to each party 
 unless specially required by the submis- 
 
 I C. of L.— 46 705 
 
 sion or by statute. Wade v. Powell, 31 
 Ga. i; Houghton v. Burroughs. 18 N. H. 
 499; Buck V. Wadsworth, I Hill (N. Y.), 
 321; Prattw. Hackelt, 6 Johns. (N. Y.) 14, 
 
 Where a party is in possession of the 
 award delivery to him will be presumed. 
 Lansdale v. Kendall. 4 Dana (Ky.), 613;: 
 Thompson v. Mitchell, 35 Me. 281. 
 
 An oral award is delivered by pro-- 
 nouncing it to the parties. Morse on 
 Arb. 283. 
 
 Where delivery is required by the sub- 
 mission to one party or to both parties 
 the parties may expressly or impliedly 
 waive an actual delivery, as by accept- 
 ing sworn copies instead of the original 
 award, or by telling the arbitrator that 
 they need not make a duplicate copy, for 
 he will not receive it. Coulter ii. Coul- 
 ter, 81 Ind. 542; Sellick v. Addams, 15 
 Johns. (N. Y.) ig7; Gidley v. Gidley, 65 
 N. Y. i6g; Houghton v. Burroughs, iS- 
 N. H. 49g; Buck v. Wadsworth, i Hilt 
 (N. Y.), 321; Perkins v. Wing, 10 Johns. 
 (N. Y.) 143. And see Tracy v. Herrick, 
 25 N. H. 381. 
 
 Where, by the terms of an arbitration 
 bond, the arbitrators are required to seal 
 up their award when completed, and re- 
 tain it until the first day of a certain 
 term of court beginning six weeks after 
 the date of the bond, the statutory right 
 of the parties to a copy of the award, 
 and to service of notice thereof within 
 fifteen days after the award is made, 
 must be regarded as waived. Marsh v, 
 Curtis, 71 Ind. 377. 
 
 Execution, publication, or delivery of 
 an award on Sunday is, as a rule, void. 
 Story V. Elliott, 8 Cow. (N. Y.) 27; s. t., 
 18 Am. Dec. 423. Compare Isaacs v. 
 Beth Hamedash, i Hilt (N. Y.) 469;. 
 Kiger v. Coats, 18 Ind. 153; Blood v. 
 Bates, 31 Vt. 147; Van Riper v. Van 
 Riper, i South. (N. J.) 156; s. c, 7 Am, 
 Dec. 576. 
 
 Arbitrators may refuse to deliver the 
 award until their fees are paid. Ott v, 
 Schroeppel, 3 Barb. (N. Y.) 56. 
 
 And an attorney may by verbal agree- 
 ment obtain a valid lien on an award in 
 favor of his client in an action for ma- 
 licious prosecution. Such lien is valid 
 against a creditor of the client without 
 
Award. 
 
 ARBITRA TION. 
 
 Impeaclimeiit of. 
 
 24. Impeaclunent of Awards.— As a general rule the courts are very 
 liberal in the construction of awards. All reasonable presumptions 
 will be made in their aid. No intendment will be indulged to 
 overturn them, but every reasonable intendment allowed to up- 
 hold them. To warrant a court in reviewing an award upon its 
 merits, something more than error in the decision must be shown ; 
 such as an attempt to award upon a matter not submitted ; a sub- 
 stantial failure to make a complete and final determination ; a 
 clear and gross mistake; an error in judgment so palpable as to 
 evince partiality, corruption, or grave misconduct ; or some viola- 
 tion of statute requirements on which the defeated party had a 
 legal right to rely.* 
 
 tiotice of the assignment. Williams v, 
 Ingersoll. 89 N. Y. 508. 
 
 1, Wade V. Powell, 31 Ga. i; Ander- 
 son V. Taylor, 41 Ga. 10; Tomlinson v. 
 Hardwick, 41 Ga. 547; Overby v. Thrash- 
 •er, 47 Ga. 10; McCullough v. Mitchell, 
 42 Ga. 495; Peachy zi. Ritchie, 4CaI. 205; 
 Coupland v. Anderson, 2 Call. (Va.) 106; 
 Willoughby v. Thomas, 24 Gratt. (Va.) 
 521; Richards z/. Brockenbrough. i Rand. 
 <Va.) 449; Head v. Minor, 3 Rand. (Va.) 
 122; Shermer z/. Beale, I Wash. (Va.)ii; 
 Wheatley v. Martin, 6 Leigh. (Va.) 62; 
 Sherfey v. Graham, 72 111. 158; Van 
 Landingham v. Lowery, 2 111. 240; Ross 
 V. Watt, 16 111. 99; Kimball v. Walker, 
 30 111. 482; StrutHers v. Clark, 40 Iowa, 
 508; Kendrick v. Turbell, 26 Vt. 416; 
 Rixford V. Nye, 20 Vt. 132; Webber v. 
 Ives, I Tyler (Vt.), 441; Harris v. Social 
 Mfg. Co., 8 R. I. 133; McKinney i/. 
 Western Stage Co., 4 Iowa, 420; Liver- 
 pool, etc., Ins. Co. v. Goehring, 99 Pa. 
 St. 13; Bernus v. Clark, 29 Pa. St. 251; 
 Neal V. Shields, 2 Pa. 300; Wynn v. Bel- 
 las, 34 Pa. St. 160; Messick v. Ward, i 
 Grant's Cas. (Pa.) 437: Carter v. Carter, 
 log Mass. 309; Leominster v. Fitchburg, 
 etc., R. Co., 7 Allen (Mass.), 38; Spear 
 v. Hooper, 22 Pick. CMass.) 144: Boston 
 Waterpower Co. v. Gray, 6 Mete. 
 (Mass.) 131; McDowell v. Thomas, 4 
 Neb. 542; Cooper v. Andrews. 44 Mich. 
 94; Chicago, etc., R. Co. z-. Hughes, 28 
 Mich. 186'; Pierce v. Pierce, 60 N^ H. 
 355; Sanborn u. Mvlrphy, 50 N. H. 65; 
 Ebert I/. Ebert. 5 Md. Ch. 353; Sisson w. 
 Baltimore, 51 Md. 83; Goldsmith v. Til- 
 ley, I Har. & J (Md.) 361; Baker v. 
 Crockett, Hard. (Ky.) 388; Jenkins Vi 
 Meagher, 46 Miss 84; Cobb v. Parham, 
 4 La. Ann. 148; Bird v. Laycock, 7 La. 
 Ann. 171; Deane v. Coffin. 17 Me. 52; 
 Cushing V. Babcock, 38 Me. 452; Hal- 
 stead V. Seaman, 52 How. Pr. (N. Y.) 
 415; Fudickar v. Guardian, etc., Ins. 
 Co., 62 N. Y. 392; Barlow v. Todd, 3 
 • Johns. (N. Y.) 367; Cranston v. Kenny, 
 
 9 Johns. (N. Y.) 212; McKinney v. New- 
 comb, 5 Cow. (N. Y.) 425; Herrick v. 
 Blair, i Johns. Ch. (N. Y.) loi ; Shepard 
 V. Merrill, 2 Johns Ch. (N. Y.) 276; Per- 
 kins V. Giles, 53 Barb. (N. Y.) 342; Dun- 
 can V. Lyon, 3 Johns. Ch. (N. Y.) 356; 
 s. c, 8 Am. Dec. 513; Bridgman v. 
 Bridgman, 23 Mo. 272; Mitchell v. Cur- 
 ran, I Mo. App. 453; Bennett «/. Russell, 
 34 Mo. 524; Richardson v. Lanning, 26 
 N. J. L. 130; Bell V. Price, 22 N. J. L. 
 578; West Jersey R. Co. v. Thomas, 21 
 N. J. Eq. 205; Veghte v. Hoagland, 10 
 N. J. Eq. 45; Mulder v. Cravat, 2 Bay. 
 (S. Car.) 370; Sumpter v. Murrell, 2 Bay. 
 (S. Car.) 450; Askew v. Kennedy, i 
 Bailey (S. Car.), 46; Aylwin v. Perkins, 
 3 Desau. (S. Car.) 297; Fitzpatrick v. 
 Smith, I Desau, (S. Car.) 340; Radcliffe 
 V. Wightman, I McCord (S. Car.), 408; 
 Bumpass v. Webb, 4 Port. (Ala.) 65; 
 s. c, 29 Am. Dec. 274; Yoking v. Laird, 
 30 Ala. 371; Forshey v. G. H., etc., R. 
 Co., 16 Tex. 516; Bridgeport v. Eisen- 
 man, 47 Conn. 34; Brown v. Green, 7 
 Conn. 536; Ormsby ». Bakewell, 7 Ohio, 
 98; Davy V. Faw, 7 Cranch (U. S.), 171. 
 
 When parties submit certain matters in 
 controversy to arbitrators to be appointed 
 by a committee of an association, the 
 award is not invalidated by an error in a 
 notice of their appointment, given to the 
 arbitrators by a clerk of the committee, 
 the error having no legal or actual effect 
 upon the arbitration or the rights of the 
 parties. Ford v. Burleigh, 60 N. H. 278. 
 
 Error in judgment in the arbitrators is 
 not a sufficient ground for setting aside 
 an award; nor will it be set aside as con- 
 trary to evidence if there is any evidence 
 to support it. Lester v. Callaway, 73 
 Ga. 730. 
 
 An award will never be set aside upon 
 the complaint of the party benefited by 
 it; and the complainant must show not 
 only a sufficient cause for setting aside 
 the award, but also injury resulting from 
 it. Thompson v. Blanchard, 2 Iowa, 44; 
 
 706 
 
Award. 
 
 ARBITRA TION. Fraud, etc., of Arbitrators. 
 
 Arbitrators — Fraud, Partiality, Corruption, or wilful misconduct 
 of the arbitrators are causes for which an award may be set aside. ^ 
 
 Tomlinson v. Hammond, 8 Iowa, 40; 
 Tomlinson v. Tomlinson, 3 Iowa, 575; 
 Pomroy v. Kibbee, 2 Root (Conn.), 92; 
 Neileton v. Buckingham,! Root (Conn.), 
 149; Daniels v. Willis, 7 Minn. 374; 
 Gudgell r. Peltigrew, 26 111. 305; Galvin 
 V. Thompson, 13 Me, 367; Boston v. 
 Brazer, 11 Mass. 447; Warfield v. Hol- 
 brook, 20 Pick. (Mass.) 531; Plummert/. 
 Sanders, 55 N. H. 23; Penniman z/. Pat- 
 chin, 6 Vt. 325; Davy v. Fa.vi, 7 Cranch 
 (U. S.), 171. 
 
 Where arbitrators have made and pub- 
 lished their award, and at the instance of 
 one of the parties they change the award, 
 and the award so changed is returned to 
 court, and the other party moves to have 
 the changed award entered up as the 
 judgment of the court, and it is so entered 
 up against the protest of the party at 
 whose instance the original award was 
 changed by an addition thereto, whereby 
 it was made more favorable to him, said 
 party is not prejudiced by the entering up 
 of the second or changed award instead 
 of the first, and cannot object. Rogers v. 
 Corrothers, 26 W. Va. 238, 249. 
 
 Neither can a stranger to the award 
 object to it. Penniman a. Patchin, 6 
 Vt. 325. Compare Denham u, Williams, 
 39 Ga. 312. 
 
 A party cannot object to an award on 
 the ground of a cause of which he was 
 advised at the time of the execution and 
 to which he then did not object; his ob- 
 jection will be considered to have been 
 waived. Willingham v. Harrell, 36 Ala. 
 583; McRae v. Buck, 2 Stew. & P. (Ala.) 
 155; Hall V, Morris, 30 Tex. 280; Hoogs 
 v: Morse, 31 Cal. 128; Cromwell v. 
 Owings, 6 Har. & J. (Md.) 10; Christman 
 V. Moran, 9 Pa. St. 487; McCord ij. 
 Scott, 4 Watts (Pa.), 11; Rector v. Hun- 
 ter, 15 Tex. 380; McDaniel w. Bell, 3 
 Hayw. (Tenn.) 258; Estice v. Cockerell, 
 26 Miss. 127; Fox V. Hazleton, 10 Pick. 
 (Mass.) 275; Hite v. Hite, i B. Mon. 
 (Ky.) 177; Plumer z/. Wausan Boom Co., 
 49 Wis. 449. See Gaines v. Clark, 23 
 Minn. 64. 
 
 Objections to an award must be ap- 
 parent on its face, and in the absence of 
 fraud no. extrinsic facts will be received 
 in evidence to impeach it. Todd v. Bar- 
 low, 2 Johns. Ch. (N. Y.) 551; Ebert v. 
 Ebert, 5 Md. 353; Dorsey v. Jeoffray, 3 
 Har. & M. (Md.) 121; Cromwell v. 
 Owings, 6 Har. & J. (Md.) 10; Withing-, 
 ton V. Warren, \b Mete. (Mass.) 431; 
 Lewis w. Wildman, i Day (Conn.), 153; 
 Brown v. Green, 7 Conn. •536: Wheatley 
 
 V. Martin, 6 Leigh. (Va.) 62; Head v. 
 Muir, 3 Rand. (Va.) 122; Pleasants v. 
 Ross, I Wash. (Va.) 156; s. c, i Am. 
 Dec. 449; Shermer v. Beale, i Wash. 
 (Va.) 11; Jocelyn v. Donnel, Peck. 
 (Tenn.) 274; s. c, 14 Am. Dec. 753; 
 Bumpass v. Webb, 4 Port. (Ala.) 55; 
 s. c, 29 Am. Dec. 274. 
 
 Objections to an award must be speci- 
 fied. A statement that an award is not 
 complete and does not conform to the sub- 
 mission is too general. Powell v. Ford, 
 4 Lea (Tenn.), 278; Spencer v. Curtis, 57 
 Ind. 221; Phipps V. Tompkins, 50 Ga. > 
 641; Overby v. Thrasher, 47 Ga. 10; 
 Chisolm V. Cothran, 40 Ga. 273; Snod- 
 grass V. Snodgrass, 32 Ind. 406; Mit- 
 chell V. Brunswick, 41 Ga. 370; Sharp ». 
 Loyless, 39 Ga. 7, 678. 
 
 Evidence will not be allowed to show 
 that a claim which legally could not 
 have been submitted was considered by 
 the arbitrators when the award is unob- 
 jectionable on its face and no fraud or 
 partiality is alleged. Rundell v. La Fleur, 
 6 Allen (Mass.), 480. 
 
 Newly discovered evidence which by 
 due diligence could have been discovered 
 before is no sufficient reason to set aside 
 an award, unless it is so decisive and so 
 suppressed by the other party that a 
 court of equity will set it aside. Aubel 
 V. Ealer, 2 Binn. (Pa.) 58; Lankton v. 
 Scott, Kirby (Conn.), 356; Allen v, Ran- 
 ney, i Conn. 569; Todd v. Barlow, 2 
 Johns. Ch. (N. Y.) 551; Hardin v. Al- 
 mand, 64 Ga. 582; Adams v. Hubbard, 
 25 Gratt. (Va.) 129. 
 
 A common-law award can no more be 
 impeached when pleaded in defence than 
 when the subject ol an action. Hartwell 
 V. Penn. F. Ins. Co., 60 N. H. 293. 
 
 Any objection to an award should be 
 made before judgment is rendered on it. 
 Burrows v. Guthrie, 6i 111. 70; Clark v. 
 Clark, 46 Ga. 97. See Thurmond v. 
 Clark, 47 Ga. 500. 
 
 1. Rand v. Redington, 13 N. H. 72; 
 Torrance v. Amsden, 3 McLean (U. S.), 
 509; Smith V. Cooley, 5 Daly (N. Y.), 
 401; Newland v. Douglass, 2 Johns. (N. 
 Y.)6i; Underbill z'.VanCortlandt,2 Johns. 
 Ch. (N.Y.) 339; Lee v. Patilla, 4 Leigh. 
 (Va.) 436; Fluharty v. Beatty, 22 W. Va. 
 698; Dickinson v. Railr. Co.,- 7 W. Va. 
 390; Speer v. Bidwell, 44 Pa. St. 23; 
 Paul TJ. Cunnine^ham, g Pa. St. 106; Em- 
 erson V. Udall, 13 Vt. 477; Eaton v. 
 Eaton, 8 Ired. Eq. (N. Car.) io2; Hyer- 
 onimus v. Allison, 52 Mo. 102; Conrad 
 V. MasSasoit Ins. Co., 4 Allen (Mass.), 
 
 707 
 
Award, 
 
 ARBITRA TION. Fraud of Parties— Irregularity. 
 
 An arbitrator who has so misconducted himself that his award 
 was rendered unavailing cannot recover for his services. ^^ 
 
 Fraud of Parties. — An award will be set aside upon proof of 
 fraud by one of the parties in obtaining the award.* 
 
 Irregularity in Proceedings. — An award will be set aside for ir- 
 regularity in the proceedings, as where the parties did not receive 
 due notice of the hearings.* 
 
 20; Boston Waterpower Co. v. Gray, 6 
 Mete. (Mass.) 131; Strong v. Strong, g 
 Cush. (Mass.) 560; Brown v. Bellows, 4 
 Pick. (Mass.) 179; Beam v. Macomber, 
 33 Mich. 127; Sisk v. Garey, 27 Md. 401; 
 Cleland v. Hedley, 5 R. I. 163; Bash v. 
 Christian, 77 Ind. 2go; Cothraii v. Knox, 
 13 S. Car. 496. 
 
 But slight irregularities in the conduct 
 of the arbitrators will not avoid an award 
 when they have acted in good faith and 
 no injustice is done. Plummer v. Sand- 
 ers, 55 N. H. 23. 
 
 An award will be set aside where the 
 arbitrators acted while in a state of intox- 
 ication. Smith V. Smith, 28 111. 56. 
 
 Though the intention of the arbitrators 
 was perfectly honest, yet if their acts 
 were decidedly partial the award will be 
 set aside. Sullivan v, Frink, 3 Iowa, 66. 
 
 It is sufficient ground for setting aside 
 an award that one of the three arbitrators 
 after his appointment conversed fully on 
 the merits of the dispute with one who 
 had previously acted as arbitrator in re- 
 spect to the same matter, and whose 
 award had been set aside. Moshier v. 
 Shear, 102 111. 169; s. c, 40 Am. Rep. 573. 
 
 Where an arbitrator pending the pro- 
 ceedings solicited favors of defendant 
 which defendant refused to grant, and he 
 made an award against defendant, it was 
 set aside. Burrows v. Dickinson, 35 
 Hun (N. Y.), 492. 
 
 A party who wishes to impeach an 
 award on the ground of fraud on the part 
 of the arbitrators, must specify his 
 charges. Phillips v. Phillips, 81 Ky. 147. 
 
 And object to the misconduct at the 
 time, and not after an award against 
 them has been rendered. Noyes v. 
 Gould, 57 N. H. 20. 
 
 1. Bever v. Brown, 56 Iowa, 565; s. 
 c, 41 Am. Rep. 118; Sanborn v. Mur- 
 phy, 50 N. H. 65. 
 
 He is, however, not liable in an action 
 for damages. Jones v. Brown, 54 Iowa, 
 74; s. c, 37 Am. Rep. 185; Phelps o. 
 Dolan, 75 111. 90. 
 
 And where an arbitrator conspires 
 with the attorney of one of the parties to 
 induce the other arbitrator to join him in 
 an unjust award, he will not be liable in 
 damages. The attorney, however, is lia- 
 
 ble even where the award is not reversed. 
 Hoosac Tunnel, etc., Co. v. O'Brien, 137 
 Mass. 424; s. c, 50 Am. Rep. 323. 
 
 2. Bulkley v. Starr. 2 Day (Conn.), 
 552; Baird ». Crutchfield, 6 Humph. 
 (Tenn.) 171; Chambers v. Crook, 42 Ala. 
 171; Branden v. Forrest Co., 59 Pa. St. 
 187; Emerson v. Udall, 13 Vt. 477; 
 Spurck V. Crook, 19 111. 415; Conway v. 
 Duncan; 2S Ohio St. 102; Mathews v. 
 Mathews, i Heisk. (Tenn.)669; Craft u. 
 Thompson, 51 N. H. 536. 
 
 An act of one of the parties before 
 submission, without design to deceive 
 the arbitrators, but which may affect 
 their opinion, is not a sufficient ground 
 for setting aside an award. EUmaker v. 
 Buckley, 16 S. & R. (Pa.) 72. 
 
 It is sufficient to authorize a court of 
 equity to enjoin a suit at law upon an 
 award, and set aside the award, that one 
 of the parties in interest made a state- 
 ment to one of the arbitrators, in the ab- 
 sence of the adverse party, designed and 
 having a tendency to improperly affect 
 his decision as an arbitrator, without 
 showing that such statement, in fact, pro- 
 duced any harmful result to such other 
 party. A party to an arbitration who by 
 overt acts attempts to corrupt or improp- 
 erly influence the arbitrators, or any one 
 of them, to make an award in his favor, 
 will not be heard to say that he was im- 
 potent to accomplish what he sought, and 
 to raise an issue thereupon. Catelett v. 
 Dougherty, 114 111. 56S. 
 
 A party who himself has been the 
 only cause of misbehavior on the part 
 of the arbitrators, or either of them, can- 
 not be heard to complain of such misbe- 
 havior. Rogers v. Corrothers, 26 W. Va. 
 238, 246. 
 
 3. McFarland v. Mathes, 10 Ark. 560; 
 Cobb V. Wood, 32 Me 455; Emery v. 
 Owings, 7 Gill (Md.) 488; s. c, 48 Am. 
 Dec. s8o; Rigden v. Marlins, 6 H. & J. 
 (Md.) 403; Elmendorf v. Harris, 23 
 Wend. (N. Y.) 628; s c, 35 Am. Dec. 
 587; Jordan v. Hyatt, 3 Barb. (N. Y.) 
 275; Peters v. Newkirk, 6 Cow. (N. Y.) 
 103; Hook V. Philbrick, 23 N. H. 288; 
 Goodall V. Cooley, 29 N. H. 48; 
 Lincoln v. Taunton Copper Mfg. Co , 8 
 Cush. (Mass.) 415; Crowell v. Davis, 12 
 
 708 
 
Award. ARBITRATION. Grounds for Setting Aside. 
 
 Oath of Arbitrator. — In States where it is required that the 
 arbitrators should be sworn before they proceed to hear the evi- 
 dence, an omission of the oath is such a fatal irregularity that 
 their award will be set aside.* 
 
 Adjournments. — Any excess of the power of the arbitrator in 
 the matter of adjournments will avoid an award.* 
 
 Evidence. — An award will be set aside where illegal, ex /larte, or 
 otherwise incompetent evidence has been received and the recep- 
 tion of such evidence appears upon the face of the award ; or where 
 evidence has been refused which ought to have been received.* 
 
 Irregularity in Form. — An award may be set aside upon proof 
 of irregularity in form, lack of finality, certainty, or mutuality, or 
 of the fact that the arbitrator has exceeded his authority.* 
 
 Mistakes of Fact. — Another ground for setting aside an award 
 is a mistake of fact, apparent upon the award itself ; and this is 
 held to invalidate the award, upon the principle that the award 
 does not conform to the judgment of the arbitrators, and the 
 mistake apparent in some material and important particular shows 
 that the result is not the true judgment of the arbitrator. The 
 mistake must be, therefore, of such a nature, so affecting the 
 principles upon which the award is based, that if it had been 
 reasonably known and disclosed to the arbitrators, if the truth had 
 been known and understood by them they would probably have 
 come to a different result. A familiar instance of this class of 
 mistakes is an obvious error in computation, by which the appa- 
 rent result in sums, or times, or other things of like kind is mani- 
 festly erroneous. In such case it is clear that the result stated is 
 not that intended. It does not express the real judgment of the 
 arbitrators. ** 
 
 Mete. (Mass.) 293; Tate v. Vance, 27 Cutting v. Carter, 29 Vt. 72; Bulkley v. 
 
 Gratt. (Va.) 571; McCormick v. Black- Starr, 2 Day (Conn.), 552; Fluharty v. 
 
 ford. 4 Gratt. (Va.) 133; Webber v. Ives, Beatty, 22 W. Va. 698. (See page 679.) 
 I Tyler (Vt.), 441 ; Falconer v. Montgom- But the party wishing to impeach the 
 
 ery, 4 Dall. (U. S.) 232; Lutz v. Linthi- award must prove that the refused evi- 
 
 cum, 8 Pet. (U. S.) 165; Rivers v. Walk- dence was pertinent to the question at 
 
 er, I Dall. (U. S.) 81. Compare Sweeney issue and material. Halstead v. Seaman, 
 
 V. Vaudry, 2 Mo. App. 352. (See page 52 How. Pr. (N. Y.) 415. 
 blT et seq.) But objection must be made by the 
 
 1. Overton v. Alpha, 13 La. Ann. 558; parties at the time the evidence is re- 
 Toler V. Hayden, 18 Mo. 399; Walt v. ceived. Patten v. Hunnejwell, 8 Me. 19. 
 Huse, 38 Mo. 210; Fassett w. Fassett, 41 (See page 673.) 
 
 Mo. 516; Combs V. Little, 4 N. J. Eq. 4. Tudor v. Scovell, 20 N. H. 171; 
 
 310. (See page 674.) Price v. Thomas, 4 Md. 514; Stanton v. 
 
 2. Coryell v. Coryell, i N. J. L. 385; Henry, n Johns. (N. Y.) 133; Perkins v. 
 Passmore v. Pettit, 4 Dall. (U. S.) 271; Giles, 53 Barb. (N. Y.) 342; Rea v. Gib- 
 Forbes V. Frary, 2 Johns. Cas. (N. Y.) bons, 7 S. & R. (Pa.) 204; Gonsales v. 
 234; Woodsworth v. Van Buskirk, l Deavins,' 2 Yeates (Pa.), 539; Burnam w. 
 Johns. Ch. (N. Y.) 432; Cole v. Blunt, 2 Burnam, 6 Bush (Ky.), 389; Heath v. 
 Bosw. (N. Y.) 116. (See page 682.) Tenney. 3 Gray (Mass.), 380; Day v. 
 
 3. Thompson v. Blanchard, 2 Iowa, Laflin, 6 Mete. (Mass.) 280; Dundon v. 
 44: Conrad w. Massasoit Ins. Co., 4 Allen Siarin, 19 Wis. 261; Archer v. William- 
 (Mass.), 20; Jocelyn v. X)onnel, Polk son, 2 Harr. '& G. (Md.) 62; Crane v. 
 (Tenn.), 275; s. c, 14 Am. Dec. 753; Barry, 54 Ga. 500. (See page 692 fi «^.) 
 Lowndes v. Campbell, i Hall (N. Y.), 6. Shaw, Ch. J., in Boston Water- 
 598; Hogaboom v,. Herrick, 4 Vt. 131; power Co. v. Gray, 6 Mete. (Mass.) 131. 
 
 T09 
 
Award. 
 
 ARBITRATION. 
 
 Must be Apparent. 
 
 Must be Apparent. — The mistake for which an award will be set 
 aside must be palpably apparent upon its face, in some material 
 point, and extremely prejudicial to the Losing party.^ 
 
 Award part Good, part Bad. — An award in part good and in 
 part bad may be divided and the objectionable part rejected as 
 mere surplusage, if it can be readily distinguished from the rest, 
 and the good part will be sustained.* 
 
 And see Spoor v. Tyzzer, 115 Mass. 40; 
 Eisenmeyer v. Santer, 77 111. 515; Kleine 
 V. CJatara. 2 Gall. (U. S.)6i; Garvey v. 
 Carey, 4 Abb. (N. Y.) Pr. N. S. 159; 
 Rogers v. Cruger, 7 Johns. (N. Y.) 557; 
 Underbill v. Van Cortlandt, 2 Johns. (N. 
 ,Y.) 339; Roloson V. Carson, 8 Md. 208; 
 American Screw Co. v. Sheldon, 12 R. I. 
 
 324- 
 
 A bona-fide error in judgment by arbi- 
 trators holding that certain claims were 
 not barred by the statute of limitations 
 is not such an error for which the award 
 will be set aside. Tennant v. Divine, 24 
 W. Va. 387. And see- Portsmouth v. 
 Norfolk Cc, 31 Gratt. (Va.) 727. 
 
 The arbitrator must have been mis- 
 taken about some actual fact. Where 
 one arbitrator signed the award drafted 
 by the other arbitrator without reading 
 it, and afterwards found that the award 
 did not contain what he supposed, it was 
 held not to be such a mistake as would 
 avoid an award. Withington v. Warren, 
 10 Mete. (Mass.) 431. 
 
 One seeking to set aside an award on 
 the ground of mistake must show that 
 the award would have been different had 
 the mistake not occurred. Gorham v. 
 Millard. 59 Iowa, 554; De Castro v. 
 Brett, 56 How. Pr.(N. Y.) 484; Halstead 
 V. Seaman, 52 How. Pr. (N. Y.) 415. 
 
 1. Williams v. Paschal!, 4 Dall.. (U. S.) 
 285; Morris v. Ross, 2 Hen. & Munf. 
 (Va.) 408; Polard v. Lumpkin, 6 Gratt, 
 (Va,) 398; Ross V. Overton, 3 Call. (Va.) 
 ■309; s. c. 2 Am. Dec. 552; Hartshorne 
 V. Cuttrell, I Green Ch. (N. J ) 297; 
 Green v. Lundy, Coxe (N. J.), 435; Bum- 
 pass V. Webb, 4 Port. (Ala.) 65; s. c, 29 
 Am, Dec. 224; Sumpter v. Murrell, 2 
 Bay, (S. Car.) 450; Askew v. Kennedy, 
 I Bailey (S. Car,), 46; PuUian v. Pen- 
 soneau, 33 111. 375; Allen v. Miles, 4 
 Harr, (Del.) 234; M'Calmont v. Whita- 
 ker, 3 Rawie (Pa.), 84; s, c, 23 Am. Dec, 
 314; Spier V. Bidwell, 44 Pa. St, 23; 
 Horton v. Stanley, i Miles (Pa,), 418; 
 Learned v. Bellows, 8 Vt. 79; Conger v. 
 James, 2 Swan (Tenn.), 213; Halstead v. 
 Seaman, 52 How. Pr. (N. V.)4i5; Bissell 
 V. Morgan, 56 Barb. (N. Y.) '369; Piatt 
 V. Smith, 14 Johns. (N. Y.) 368'; Under- 
 bill V. Van Cortland, 2 Johns. Ch. (N. Y.) 
 
 339 ; Spofford w. Spofford, 10 N. H. 
 254- , 
 
 The award will not be reviewed upon 
 a question of fact where evidence is con- 
 flicting and it is not contrary to the 
 weight of evidence. Kalbfleisch v. Long 
 Island R. Co., 3 Centr. Rep, 663. 
 
 Mistakes in charging interest and the 
 like do not furnish a ground for a court 
 of equity to interfere and set aside an 
 award. Gardner v. Masters, 3 Jones Eq. 
 (N. Car.) 462. 
 
 Ah error in computation which maybe 
 made certain by mathematical calcula- 
 tion will not avoid an award. Such error 
 may be cured by remittal. Clement v. 
 Foster, 69 Me. 318. 
 
 An award may, however, be objected 
 to on the ground of usury in. the compu- 
 tation. Woods V. Matchett, 47 Md. 390, 
 
 Where the losing party, by mere neg- 
 ligence, caused a mistake of fact to take' 
 place ' or prevented its discovery, the 
 award will not be set aside. Vallfe v. 
 North Missouri R. Co., 37 Mo. 445; Da- 
 vis V. Henry, 121 Mass. 150; Harper v. 
 Comm'rs of Pike, 52 Ga. 659. 
 
 2, Reynolds v. Reynolds, 15 Ala. 398; 
 Bogan 11. Dantrhdrill, 51 Ala. 312; Adam's 
 V. Ringo, 79 Ky. 211; Carson v. Carson, 
 1 Mete. (Ky.) 434; Galloway v. Webb, 
 Hard. (Ky.) 326; Ebert v. Ebert, 5 Md, 
 353; Cromwell v. Owings, 6 Har. & J. 
 (Md.) 10; Caton v. McTavish, 10 Gill, & 
 J. (Md.) 192; Garitee v. Carter, 16 Md. 
 309; Stanwood v. Mitchell, 59 Me, 121; 
 Rawson v. Hall, 56 Me, 142; Day " 
 Hooper, 51 Me. 178; Banks v. Adams, 
 23 Me. 259; Orcutt v. Butler, 42 Me. 83; 
 Clement v. Durgift, i Me. 300; Gordon 
 V. Tucker, 6 Me. 247; Blossom v. Van 
 Amringe, 63 N. Car. 65; Chase v. Strain, 
 15 N, H, 535; Tracv v. Herrick, 25 N. 
 H. 381; Warner v. Collins, 135 Mass. 26; 
 Barrows v. Capen, ll'Cush. (Mass.) 37; 
 Gilmore v. Hubbard, 12 Cush. (Mass.) 
 220; Harrington v. Brown, 9 Allen 
 (Mass.), 579; Sears v. Vincent, 8 Allen 
 (Mass.), 507; Peters v. Peirce, 8 Mass. 
 399; Dickey v. Sleeper, 13 Mass. 244; 
 Skillings v. Coolidge, 14 Mass, 43; Hoag- 
 land I/, Veghte, 23 N. J. L. 92; Rogers i'. 
 Tatum, 25 N, J. L, 281; South v. South, 
 70 Pa. St. 195; Babb v. Stromberg, 14 
 
 no 
 
Publication of the Award, 
 
 ARBITRATION. 
 
 Effect of tlie Awardi: 
 
 Power of Court over Objectionable Azuard. — The court has no 
 power to modify an award even to correct an obvious miscalcula- 
 tion unless the authority be expressly given by statute. Its 
 authority is only to confirm, reject, or recommit. A judgment 
 different from the award cannot be entered.'' 
 
 25. Effect of the Award. — A valid award has the same effect as a 
 judgment, and concludes the parties to the controversy effectually 
 from litigating the same matters anew.* 
 
 Pa. St. 397; Wynn v. Bellas, 34 Pa. St. 
 160; Hartland v. Henry, 44 Vt. 593; Bix- 
 ford V. Nye, 20 Vt. 132; Darling v. Dar- 
 ling, 16 Wis. 644; Parmelee v. Allen. 32 
 Conn. 115; Richardson v. Payne, 55 Ga. 
 167; Walker v. Walker, 28 Ga. 140; Car- 
 son v.. Earlywine, 14 Ind. 256; Gibson 
 V. Broadfoot, 3 Desau. (S. Car.) 11; Gib- 
 son V. Powell, 13 Miss. 712; Keep v. 
 Keep, 17 Hun (N. Y.), 152; M 'Bride v. 
 Hagan, i Wend. (N. Y.) 326; Martin v. 
 Williams, 13 Johns. (N. Y.) 264; Cox v. 
 Jagger, 2 Cow. (N. Y.) 638; s. c, 14 Am. 
 Dec. 522; Bacon v. Wilber, i Cow. (N. 
 Y.) 117; Doke V. James, 4 N. Y. 567; 
 Moore z/.Luckess, 23 Gratt. (Va.) 160; 
 Taylor v. Nicolson, i Hen. & M. (Va.) 
 67; Stearns v. Cope, 109 111. 340; Stevens 
 V. Brown, 82 N. Car. 460. 
 
 But where it cannot be readily distin- 
 guished the whole award must fall. Saw- 
 yer V. Freeman, 35 Me. 542; Bullitt v. 
 Musgrave, 3 Gill (Md ), 31; White v. 
 Arthur, 59 Cal 33; Bullock f. Bergman, 
 46 Md. 270; Whitcher v. Whitcher, 49 N. 
 H. 176. 
 
 And where the rejection of the objec- 
 tionable part should do apparent injustice 
 to one of the parties, as where it is the 
 consideration for the other part, the whole 
 award will be void. Brown v. Warnock, 
 5 Dana (Ky.), 492; Boynton v. Frye. 33 
 Me. 216; Philbrick v. Preble, 18 Me. 
 255; s. c. 36 Am. Dec. 718; Clement v. 
 Durgin, i Greenl. (Me.) 300. 
 
 1. Morse on Arb. 330; Smith v. Cut- 
 ler. 10 Wend. (N. Y.) 589; Com. w. 
 Pejepscut Props.. 7 Mass. 399; Phelps 
 V. Goodman, 14 Mass. 252; Hiscock v. 
 Harris, 80 N. Y. 402. Compare Com. v. 
 Roxbury 9 Gray (Mass.), 451; Henley v. 
 Menefee. 10 W. Va. 771. 
 
 An award may be recommitted to the 
 arbitrators for correction of an acknowl- 
 edged error. Kleine w. Catara, 2 Gall 
 (U. S.) 61; Blood V. Robinson, i Cush. 
 (Mass.) 389; Yeaton v. Brown, 52 N. H. 
 14; Brann v. Vassalboro, 50 Me. 64. 
 Compare Black v. Harper. 63 Ga. 752. 
 
 Or for informality. Bowers v. Wor- 
 rell, I Browne (Pa.), 170; Snyder v. 
 Hoffman, i Binn. (Pa.), 43; Shaw v. 
 Pearce, 4 Binn. (Pa.) 485; Thompson v. 
 
 Warder, 4 Yeates (Pa.), 336; Heslop »- 
 Bush, 80 Pa. St. 70. 
 
 Or on the ground of newly-discoveredi 
 evidence. Depew v. Davis, 2 Greeir 
 (Iowa), 260. 
 
 And in some cases for the correction 
 of substantial errors which can only be 
 cured by a rehearing of the case. Cum- 
 berland V. North Yarmouth, 4 GreenU 
 (Me.) 459; Algona u. Lott's Creek, 54. 
 (Iowa), 286. 
 
 It is within the discretion of the cburt: 
 either to recommit or to reject the award. 
 Walker v. Sanborn, 8 Greenl. (Me.) 288;. 
 Cumberland v. North Yarmouth, 4 
 Greenl. (Me.) 459; Boardman v. Eng- 
 land, 6 Mass. 70; Whitney v. Cook, 
 5 Mass. 143: Treasurer v. Champaign- 
 Co. V. Norton, i Ohio, 270; Eastnlao 
 ■V. Burleigh, 2 N. H. 484; Johnston v, 
 Paul, 22 Minn. 17. 
 
 Where a statute determines on what 
 grounds an award may.be reviewed, the 
 court will have no authority to review it 
 on any other grounds. Dibble v. Camp,. 
 10 Abb. Pr. (N. Y.) 92. 
 
 A request of the arbitrators for the 
 recommitment of an award on the ground 
 of a change of opinion on the subject 
 cannot be granted except by consent of 
 the parties. Cleveland v. Dixon, 4 J. J- 
 Marsh. (Ky.) 226. 
 
 After an award was once rejected it 
 cannot be again recommitted. Smith v^ 
 Smith, 28 111. 56. Compare Evans v, 
 Sheldon. £9 Ga. 100. 
 
 Where an award is recommitted the 
 full power of the arbitrators revives, the 
 recommitment must be of the whole 
 cause, and his power is then only re- 
 stricted by the terms of the submission. 
 French o. Richardson, 5 Cush. (Mass.> 
 450; Smith V. Warner, 14 Mich. 152;. 
 Maner v. Wilson, 16 S. Car. 469. 
 
 The question whether an award is ille- 
 gal and void upon its face is a question 
 of law for the court, and cannot be sub- 
 mitted to the jury. Cobb v. Morris, 4<> 
 Ga. 671; Tucker v. Allen, 47 Mo. 488, 
 
 2. Buck V. Buck, 2 Vt. 417; Preston 
 V. Whitcomb. 11 Vt. 47; Jones v. Harris, 
 58 Miiss. 293; Handy v. Cobb, 44 Miss,. 
 699; Leonard v. Wadiag River, etc., Co., 
 
 711 
 
Hffect of the Awaid. 
 
 ARBITRATION. 
 
 VitXgK, 
 
 Merger. — An award on a matter properly submitted is a merger 
 of the original claim, which is completely extinguished ; unless 
 the award contains a condition by which the performance of cer- 
 tain acts must be proved before a party can avail himself of the 
 award. Such performance must first be shown. ^ 
 
 Matters not Submitted. — The decisions in the various States do 
 
 113 Mass. 235; Hewitt v. Furman, 16 S. 
 &i R. (Pa.) 135; Evans v. Kamphajis, 59 
 Pa. St. 379; Speer v. MoChesney, 2 
 Watts & S. (Pa.) 253; Spencer v. Curtis, 
 57 Ind. 221; Rogers v. Holden, 13 111. 
 293; Strife V. Reiff, 55 Md. 92; Richard- 
 son V. Lanning, 26 N. J. L. 130; Martin 
 v. Bevan, 58 Ind. 282; Johnston v. Paul, 
 23 Minn. 46; Wilkinson v. Sitton, 54 Ga. 
 71; Coleman v. Wade. 6 N. Y. 44; Free- 
 man V. Kendall, 41 N. Y. 518; Wheeler 
 w. Van Houten, 12 Johns. (N. Y.) 311; 
 Tidier v. Cooper, ig Wend. (N. Y.) 285; 
 Truesdale v. Straw, 58 N. H. 207; Ford 
 ». 'Burleigh, 60 N. H. 278; Girdler v. 
 Carter, 47 N. H. 305; Varney v Brew- 
 ster, 14 N. H, 49; Barrett v. Henry, 85 
 N. Car. 321; Moore v. Austin, 85 N. 
 Car. 179; Chambers v. Crook, 42 Ala. 
 171; Bunnell v. Pinto, 2 Conn. 431; Cur- 
 ley V. Dran, 4 Conn. 259; s. c, 10 Am. 
 Dec. 140; McArthur v. Oliver, 53 Mich. 
 299; Day z/. Bonner, 3 Bing. (N. Car.) 219. 
 
 Even when erroneous if fairly niade. 
 Morse v. Bishop, 55 Vt. 23:. 
 
 The award under a common law arbi- 
 tration is not required to be made the 
 judgment of any court; it is binding be- 
 tween the parties until set aside. Shef- 
 field V. Clark, 73 Ga. 92. 
 
 But is no bar to a suit until properly 
 set up in the answer. Martin v. Rex- , 
 -road, 15 W. Va. 512. 
 
 Land was conveyed to a trustee in 
 trust to allow A. to occupy the land 
 during the life of the grantor, A. to sup- 
 port the grantor during his life, and, in 
 case A. should be unable or neglect to 
 fulfil his obligations, the trustee to appoint 
 arbitrators to pass upon the matters sub- 
 mitted to them, with power to determine 
 the trust, if requested by either party, in 
 which case the trustee should hold the 
 land for the benefit of the grantor. Held, 
 on a writ of entry by the trustee against 
 A-, after an award of arbitrators deter- 
 mining the trust, that parol evidence was 
 inadmissible to show that A. had fulfilled 
 the obligations imposed on him by the 
 -deed. Cook v. Gardner, 130 Mass, 313. 
 
 An award is in a very limited and re- 
 stricted sense a contract, but does not 
 involve a promise to perform. Johnson 
 ■V. Maxey, 43 Ala. 521. , 
 
 And where the submission is entered 
 
 into under bonds the award may be 
 pleaded in bar to an action on the same 
 matter before the award is performed. 
 Pickering v. Pickering, 19 N. H. 389; 
 Armstrong v. Master, u Johns. (N. Y.) 
 189. 
 
 For the same principle applied to an 
 award under a parol submission, see 
 Jessiman v. Haverhill Iron Co., i N, 
 H. 68. 
 
 A plea of an award in bar need not 
 aver a promise to abide by it or to per- 
 form it. Such intention is implied from 
 the submission. Evans v. McKinsey, 6 
 Litt. (Ky ) 265. 
 
 Where the award confirms the docu- 
 ment in dispute as a mortgage or an in- 
 denture and orders a performance of the 
 covenants it contains, the original cause 
 retains its force. Howett v. Monical, 25 
 111. 122; Keeler ?/. Harding, 23 Ark. 697, 
 
 An award which for any reason is void 
 or not final and decisive is no bar to the 
 original claim. Mayor of N. Y. v. But- 
 ler, I Barb. (N. Y.) 325; Haggart v. 
 Morgan, 5 N. Y. 422; s. c, 55 Am. Dec. 
 350; Hart V. Lanman, 29 Barb, (N. Y.) 
 410; Morton v. Cameron, 3 Robt. (N. Y.) 
 i8g; Smith v. Holcomb, 99 Mass. 552; 
 Canfield v. Watertown Ins, Co,, 55 
 Wis. 419. 
 
 And an award will not protect a party 
 in rights acquired by fraud or mistake. 
 It will only put the party to strict proof 
 of the fraud or mistake. Thornton v. 
 McNeill, 23 Miss. 369, 
 
 Judgment on an award is not granted 
 as of course, and the party aggrieved 
 may defend himself against the motion 
 for judgment, even though he neglected 
 to apply in time to have the award va- 
 cated. Shores v. Bowen, 44 Mo. 396. 
 
 1. Com, V. Pejepscutt Prop'rs, 7 Mass. 
 399; Homes v. Aery, 12 Mass, 134; Te- 
 vis V. Tevis, 4 T. B. Mon. (Ky.) 47; 
 Evans v. McKinsey, 6 Litt. (Ky,) 263; 
 Curley v. Dean, 4 Conn. 259; s. c, 10 
 Am. Dec. 140; Bulkley v. Stewart, I 
 Day (Conn,). 130; s. c, 2 Am, Dec. 57; 
 Preston v. Whitcomb, 11 Vt. 47; Varney 
 V. Brewster, 14 N. H. 49; Girdler v. Car- 
 ter, 47 N. H, 305; Duren o. Getchell, 55 
 Me. 241; Armstrong z/. Master, 11 Johns. 
 (N. Y.) 189; Groat v. Pracht, 31 Kans. 
 656. 
 
 713 
 
Effect of the Award. 
 
 ARBITRATION. 
 
 Concerning Beal Estate. 
 
 not agree upon the question whether under a general submission 
 actions upon matters not brought before the arbitrators, and con- 
 sequently not decided upon, are barred by the award. In some 
 States it is held that under a general submission all matters are 
 barred whether submitted or not.^ In others, actions upon matters 
 included m the submission but not actually submitted are not 
 barred.'-* 
 
 Award in Matters concerning Real Estate. — An award deciding 
 upon matters of real estate, although conclusive between the par- 
 ties, cannot pass the title. It merely acts as an estoppel, and 
 prevents the losing party from denying the superiority of the title 
 of the other party.' 
 
 1. Wheeler v. Van Houten, I2 Johns. 
 (N. Y.) 311; Fidler v. Cooper, 19 Wend. 
 (N. Y.) 285; Emmet v. Hoyt, 17 Wend. 
 (N. Y.) 410; Brazil v. Isham, 12 N. Y. 9; 
 Owen V. Boerum, 23 Barb. (N. Y.) 187; 
 Stipp V. Washington Hall Co., 5 Blackf. 
 (Ind.) 473. Compare Coleman v. Wade, 
 2 Seld. (N. Y.) 44. 
 
 2. Smith V. Whiting, 11 Mass. 445; 
 Edwards w. Stevens, 3 Allen (Mass.), 315; 
 Webster v. Lee, 5 Mass. 334; King v. 
 Savory, 8 Cush. (Mass.) 312; Hodges v. 
 Hodges, 9 Mass. 320; Hopson v. Doolit- 
 tle, 13 Conn. 236; Bunnel v. Pinto, 2 
 Conn. 431; Buck v. Buck. 2 Vt. 417; 
 Green v. Danby, 12 Vt. 338; Mt. Eesert 
 V. Tremont, 75 Me. 252; Yarmouth v.. 
 Cumberland, 6 Greenl. (Me.) 21; Bixby 
 V. Whitney, 5 Greenl. (Me.) 192; Whitte- 
 more v. Whittemore, 2 N. H. 26; Hewitt 
 V. Furman, 16 S. & R. (Pa.) 135; Lee v. 
 Dolan, 39 N. J. Eq. 193; Keaton v. Mul- 
 ligan, 43 Ga. 308. 
 
 It has been held that an action on 
 matters so omitted in the award can only 
 be sustained where the omission was un- 
 intentional or by mistake, but will be 
 barred if the omission was intentional or 
 fraudulent. Robinson v. Morse, 26 Vt. 
 392; Warfield v. Holbrook, 20 Pick. 
 (Mass.) 531. 
 
 Where the submission embraces all the 
 accounts in a certain transaction, the ac- 
 counts will be considered as a whole; 
 and the omission of some items, even un- 
 intentionally, will be no ground for an 
 action upon the original matter. Briggs 
 V. Brewster, 23 Vt. 100. 
 
 Where it is doubtful whether a matter 
 omitted was embraced in the submission 
 the court will suppose that the mat'ter 
 has not been included. Harris v. Wil- 
 son, I Wend. (N. Y.) 511. 
 
 Where it can be proved that at the 
 time of the submission of all matters 
 "in difference" a certain matter between 
 i.he same parties was not then in dispute. 
 
 an action upon such matter can be main- 
 tained after the award was made and 
 judgment entered upon it. Webster v. 
 Lee, 5 Mass. 334; Hale v. Huse, 10 Gray 
 (Mass.). gg; Newman v. Wood, Mart. & 
 Y. (Tenn.) igo; Birkbeck v. Burrows, 2 
 Hall (N. Y.), 51. Compare Wheeler v. 
 Van Houten, 12 Johns. (N. Y.) 311; Bun- 
 nel V. Pinto, 2 Conn. 431; Park ji. Hal- 
 sey, 2 Root (Conn.), 100; Fidler v. 
 Cooper, ig Wend. (N. Y.) 285; Harris v. 
 Wilson, I Wend. (N. Y.) 511. 
 
 The burden of proof to show that the 
 matter was included in the arbitration is 
 upon the party who seeks to interpose 
 the award as a bar. Robinson v. Morse, 
 26 Vt. 392; Webster v. Lee, 5 Mass. 334. 
 
 Under a general submission intended 
 to settle all matters between the parties 
 one cannot after award rendered aver 
 that certain matters have not been in- 
 cluded. Gardiner v. Oden, 24 Miss 382. 
 
 An award may be pleaded as a set-off 
 in a suit which has been instituted after 
 the award was made. Varney v. Brews- 
 ter. 14 N. H. 49. 
 
 3. Cox V. Jagger, 2 Cow. (N. Y ) 638, 
 650; s. c, 14 Am. Dec. 522; Sellick v. Ad- 
 dams. 15 Johns. (N. Y.) 197; Jackson v. 
 Gager, 5 Cow. (N. Y.) 383; Shepherd v. 
 Ryers, 15 Johns. (N. Y.) 497; Shelion v. 
 Alcox, II Conn. 240; Murray v. Black- 
 ledge, 71 N. Car. 4g2; Thomp<!on v. 
 Deans, 6 Jones Ev. (N. Car.) 22; Girdler 
 V. Carter, 47 N. H. 305; Gray k Berry, 
 9 N. H. 473; Page v. Foster, 7 N. H. 
 392; Goodridge v. Dustin, 5 Mete. (Mass.) 
 363; Loring v, Whittemore, 13 Gray 
 (Mass.). 228; Shackleford v. Purket. 2 A. 
 K. Marsh. (Ky.)435; s. c, 12 Am. Dec. 
 422; Calhoun v. Dunning, 4 Dall. (U. S.) 
 120. Compare Whitney v. Holmes, 15 
 Mass. 152 
 
 Even if the award, although in writing, 
 be not under seal, it will act as an estop- 
 pel. Shelton v. Alcox, 11 Conn. 240. 
 
 If arbitrators wish to convey real es- 
 13 
 
Effect of the Award. 
 
 ARBITRATION. 
 
 Batification,' 
 
 Inadequate Award. — Where arbitrators gave an inadequate 
 award by ordering security to be given which in fact was no se- 
 curity, the award was held good. The court said : " It was sub- 
 mitted to them to point out the security. This has been done, 
 and the parties cannot object."^ 
 
 Strangers to the Award. — An award will bind only the parties 
 to a submission, and not a stranger to it.* 
 
 Ratification of the Award. — Where an award, either because 
 the arbitrators have exceeded their authority, or because all mat- 
 ters submitted have not been considered, or for any other reason, 
 is voidable, the parties may expressly or impliedly ratify it. After 
 such ratification it can no more be objected to.* 
 
 tate, they should specifically order the 
 parties to execute and deliver a deed. 
 Loring v. Whittemore, 13 Gray (Mass.), 
 228. 
 
 An award in matters concerning real 
 estate may be used in evidence. Byam 
 V. Robbins, 6 Allen (Mass.), 63. 
 
 An award fixing a boundary-line will 
 be a good defence in a case of trespass. 
 Sellick V Addams, 15 Johns. (N. Y.) 197; 
 Gaylord v. Gaylord, 3 Jones L. (N. Car.) 
 367. Compare Drane v. Hodges, i Har. 
 & M. (Md.) 262. 
 
 An action of ejectment may be sus- 
 tained on it. Sellick v. Addams, 15 
 Johns. (N. Y.) 197; Jackson v. De Long, 
 9 Johns. (N. Y.)43; Calhoun v. Dunning, 
 4 Dall. (U. S.) 120. 
 
 1. Cox V. Jagger, 2 Cow. (N. Y.) 638; 
 s. c, 14 Am. Dec. 522. 
 
 2. Chapman v. Champion, 2 Day 
 (Conn.), loi; Wyatt v. Benson, 23 Barb. 
 (N. Y.) 327; Woody v. Pickard, 8 Blackf. 
 (Ind.) 55- 
 
 An award binding a party and his as- 
 signs to an annual payment is void un- 
 less the submission makes reference to 
 the assigns. Littlefield v. Smith, 74 Me., 
 
 387- 
 
 But a stranger to it may bring himself 
 withm the operation ,of the award by ac- 
 cepting its conditions or receiving bene- 
 fits under it. Thus where an heir, not a 
 party to the submission, received the 
 amount awarded him, he was held to be 
 bound by the award. George v. John- 
 son. 45 N. H. 456. 
 
 Or where he actually assents to it, or 
 is present when it is made, with a full 
 knowledge that it is to be made, and 
 does not dissent. McGehee v. McGehee, 
 12 Ala. 83; Humphreys v. Gardner, II 
 Johns. (N. Y.) 61. 
 
 AUhough a stranger is not bound by 
 the award, the parties to it are. Sears v. 
 Vincent, 8'Allen (Mass.). 507. 
 
 A stranger may become a party to the 
 award by assignment of the subject-mat 
 
 ter. Hodges v. Saunders, 17 Pick. 
 (Mass.) 470; Shelton v. Alcox, 11 Conn. 
 240. 
 
 An award may be binding on some of 
 the parties and not on the others. Where 
 parties competent to submit and parties 
 incompetent, as adults and minors, unite 
 in a submission, the adults will be bound, 
 but not the minors. Fort v. Battle, 21 
 Miss. 133. (See page 23.) 
 
 8. Cogswell V. Cameron, 136 Mass. 518; 
 De Castro v. Brett, 56 How. Pr. (N. Y.) 
 484; Culver V. Ashley, 1,9 Pick. (Mass.) 
 300; Fudickar v. Guardian, etc., Ins. Co., 
 62 N. Y. 392; Hays v. Hays, 23 Wend. 
 (N. Y.) 363; Jones v. Phoenix Bank, 8 
 N. Y. '228; Perry v. Mulligan, 58 Ga. 479; 
 Cross V. Cross, 14 N. J. L. 288; Stipp v. 
 Washington Hall Co., 5 Blackf. (Ind.) 
 473; Peniston v. Somers, 15 La. Ann. 
 679; State V. Gurnee, 14 Kans. iii; 
 George v. Johnson, 45 N. H. 456; Elli- 
 son V. Weathers, 78 IWo. 115; Reynolds 
 V. Roebuck, 37 Ala. 408; McCuUough v. 
 Myers, Hard. (Ky.) 197; Belt v. Popple- 
 ton, II Or. 201. Compare Munson v. 
 Munson, 3 Day (Conn.), 260. 
 
 Where one of the parties accepts from 
 the other performance of his part of the 
 obligations imposed by the award, it is 
 a ratification. Culver z'. Ashley, 19 Pick. 
 (Mass.) 300; Taylor v. St. Johnsbury, 
 etc.. R. Co., 57 Vt. 106. 
 
 Where matters in controversy between 
 two parties were submitted to arbitration, 
 and the party in whose favor the award 
 was made received money and notes of 
 other persons from the opposite party, in 
 full settlement thereof, knowing at the 
 time that there was a mistake in the cal- 
 culation by which the full amount of in- 
 terest due him had not been allowed, he 
 could not retain the amount received 
 under the arbitration, and also sue for 
 the balance claimed to be due by rea- 
 son of the mistake. If he received the 
 money and notes in full settlement under 
 the award, after notice of the mistake, he 
 
 714 
 
Batifioation of Award. 
 
 ARBITRA TION. Enforcement of the Award. 
 
 Executors and Administrators. — It was formerly held that when 
 an administrator or executor submitted the matters of an estate 
 to an arbitration under the common-law rule he did so at his peril, 
 and that he was personally bound by the award as well as the 
 estate.* 
 
 This rule has, however, been much modified and is not law now. 
 An executor acting fairly and prudently incurs no personal lia- 
 bility when acting in his official capacity, and the intention to act 
 in such capacity is clearly shown on the face of the submission.* 
 
 26. Enforcement of the Award. — As an award is as conclusive upon 
 the parties as a judgment and ends the litigation on the original 
 cause effectually, it follows that in case of non-performance of the 
 award an action for specific performance will lie at once after it is 
 published. When money is awarded a demand is not even neces- 
 sary unless required by the award itself.^ 
 
 must abide the settlement. Neel v. Field, 
 72 Ga. 201. See Phillips lu. Couch, 66 
 Mo. 219. 
 
 Giving of a note for the amount of an 
 award is a ratification and a waiver of 
 all irregularities in the proceedings. Mil- 
 ler V. Brumbaugh, 7 Kans. 343. 
 
 This applies only to a ratification made 
 with full knowledge of all the facts. 
 Where it is done without such knowledge 
 the ratifying party may rescind the ratifi- 
 cation as soon as he comes to a knowl- 
 edge of the facts, and where the rescission 
 works no injury to the other parties. 
 Culver V. Ashley, ig Pick. (Mass.) 300; 
 Payne v. Moore, 2 Bibb. (Ky.) 163; s. c, 
 4 Am. Dec. 689. Compare Tyler v. 
 Stephens, 7 Ga. 278. 
 
 An award void under a statute cannot 
 be ratified. Wiles v. Peck, 26 N. Y. 42. 
 
 A valid award needs no ratification. 
 Sears v. Vincent, 8 Allen (Mass.), 507. 
 
 Concurrence in an award for a long 
 period of time acts as a ratification. Jar- 
 vis ». Fountain Water Co., 5 Cal. 179; 
 Gove V. Richardson, 4 Greenl. (Me.) 327; 
 McDanie! v. Bell, 3 Hayw. (Tenn.) 258. 
 Compare Wheaton v. Crane, 27 N. J. Eq. 
 368. 
 
 The ratification may be done by an 
 agent if duly authorized. Authority to 
 submit does, however, not imply author- 
 ity to ratify a voidable award. Bullitt v. 
 Musgrove, 3 Gill (Md.), 31. 
 
 An award may be repudiated by con- 
 sent of both parties, who thereupon will 
 be restored to their original rights. An 
 award once repudiated cannot be restored. 
 Eastman v. Armstrong, 26 111. 216; Mar- 
 shall Tj. Piles, 3 Bush (Ky.), 249. 
 
 Where the matter about which an 
 award has been rendered is submitted 
 again to arbitration, it will be presumed 
 
 that the first award is waived. Rollins v 
 Townsend, 118 Mass. 224. 
 
 1. Overly v. Overly, i Mete. (Ky.) 
 117; Tallman v. Tallman, 5 Pick. (Mass.) 
 325. 
 
 That in submitting he admitted to have 
 assets on hand to pay the amount 
 awarded, and had to from his own funds 
 if he had not. Konigmacher v. Kim- 
 mel, I Pen. & W. (Pa.) 207; s. c, 21 
 Am. Dec. 374. 
 
 That if less was awarded by the arbi- 
 trators than could have been recovered 
 at common law he was to make up the 
 deficiency. Bean v. Farnam, 6 Pick. 
 (Mass.) 269; Overly v. Overly, i Mete. 
 (Ky.) 117; Yarborough v. Leggett, 14 
 Tex. 677; Wheatley v. Martin, 6 Leigh. 
 (Va.) 62. 
 
 2. Konigmacher v. Kimmel, i Pen. & 
 W. (Pa) 207; s. c, 21 Am. Dec. 374; 
 McKeen v. Oliphant, 18 N. J. L. 442; 
 Wood V. Tunnicliff, 74 N. Y. 46; Ferrin 
 V. My rick, 41 N. Y. 315; Sumner v. 
 Williams, 8 Mass. 162; s. c, 5 Am. Dec. 
 
 83- 
 
 Specially when the submission is en- 
 tered into under a statute. Overly v. 
 Overly, i Mete. (Ky.) 117; Yarborough v. 
 Leggett, 14 Tex. 677. 
 
 Equity will set aside an award made 
 under a submission agreed to by an ad- 
 ministrator in the mistaken belief that 
 his intestate had been served with pro- 
 cess. Bright V. Ford, 11 Heisk. (Tenn.) 
 252. 
 
 3. Morse on Arb. 546; Thompson v. 
 Mitchell, 35 Me. 281; Plummer v. Mor- 
 rill, 48 Me, 184; Parsons v. Aldrich, 6 
 N. H. 264; Nichols V. Rensselaer Co. 
 Ins. Co. 22 Wend. (N. Y.) 125; Wilkes 
 V. Cotter, 28 Ark. 519; Kingsley v. Bill, 
 9 Mass. 198; Carnochan v. Christie, 11 
 
 715 
 
ARBITRA TION— ARDENT SPIRITS— ARG UMENT. 
 
 Must have Performed Jiis Part. — Where an award requires both 
 parties to do certain things and the performance is to be concur- 
 rent, independent of each other, or on a condition precedent to 
 the other, the party who wishes to enforce the award must show 
 that he has performed his part, has tendered performance or has a 
 Jegal excuse for non-performance.^ 
 
 ARDEUT SPIRITS. — In an indictment under a statute was held 
 to mean the simple liquors named in the statute, viz., wine, rum, 
 gin, brandy, whiskey, or cider spirits.'-* Alcohol is neither ardent 
 nor vinous spirits.^ 
 
 ARE CHARGED. — Applied to the estates of a covenantor, as 
 ■distinguished from " he will charge," create a clear charge upon 
 the covenantor's lands.* 
 
 ARGUMENT. — The speeches of the opposing counsel on a 
 matter, involving a question of law as a demurrer, case stated, ap- 
 peal, etc.** 
 
 Wheat. (U. S.) 446; Webb v. Zeller, 70 releases ordered, a tender of the release 
 
 is not necessary before action for the 
 money can be brought. Dudley v. 
 Thomas, 23 Cal. 365. 
 
 Where arbitrators award a sum of 
 money payable at some future day. the 
 payment to be secured by a bond, an 
 action for the money will accrue at once 
 upon refusal to execute the bond. Bayne 
 V. Morris, I Wall. (U. S.) 97. 
 
 A suit upon an award need not cover 
 the whole of it. The performance of 
 any part of it may be enforced which is 
 independent in itself, and can be en- 
 forced without doing injustice. Schuyler 
 V. Vanderveer, 2 Cai. (N. Y.) 235; 
 Lamphire v. Cowan, 39 Vt. 420. 
 
 An award under a general submission 
 ordering that one of the parties should 
 pay a certain sum to the creditor of the 
 other party can be enforced by the 
 creditor altliough a stranger to the arbi- 
 tration. Scearce v. Scearce, 7 Ind. 286. 
 
 Although a judgment rendered upon 
 an award may be unauthorized and void, 
 such judgment does not avoid the award. 
 Hume V. Hume, 3 Pa. St. 144. 
 
 Authorities for Arbitration and Award. 
 — Morse on Arb. and Award; Russell on 
 Awards; Kyd on Awards; Blacks. Com. ; 
 Parsons on Contr. ; Bouvier Inst.; Bou- 
 vier Law Diet. ; Worcester Law Diet. 
 
 2. Townlcy fli/rw;. State, 3 Harr. (N. J.) 
 II. 
 
 3. 
 
 4. 
 223. 
 
 6. " Before the Argument," in a Bulo of 
 Court prescribing that exceptions must 
 be noted and filed " at least one day be- 
 fore the argumeht," was held to mean 
 
 Ind. 408; Burke v. Parke, 5 W. Va. 122. 
 
 The action must be upon the award, 
 not upon the submission. Rank v. Hill, 
 2 Watts & S. (Pa.) 56; s. c, 37 Am. Dec. 
 483. 
 
 But where the submission is by mutual 
 ■bonds an action will lie upon the bond 
 ■or upon the award. If a party sues upon 
 the award and obtains satisfaction he 
 ■stands in the same position toward the 
 bond as if the award had been paid vol- 
 untarily. Nolthe V. Lowe, 18 111. 437; 
 Shockey v. Glasford, 6 Dana (Ky.), g; 
 Thompson v. Childs, 7 Ired. L. (N. Car.) 
 
 435- 
 
 One in whose favor an award has been 
 Tendered cannot sue both on the award 
 .and the penalty. Jackson v. Hoffman, 
 31 La. Ann. 97. 
 
 1. Jesse V. Cater, 28 Ala. 475; Pom- 
 roy V. Gold, 2 Mete. (Mass.) 500; Huy 
 v. Brown, 12 Wend. (N. Y.) 591; Shearer 
 V. Handy, 22 Pick. (Mass.) 417; Hugg 
 V. Collins, t8 N. J. L. 294; Matthews v. 
 Matthews, 2 Curtis (U. S.), 105; Leitch z/. 
 Beaty, 23 111. 642. 
 
 Not so when the performance is not 
 to be concurrent and independent of 
 ■each other and can be enforced independ- 
 ently. Girdler v. Carter, 47 N. H. 305; 
 Pickering v. Pickering, 19 N. H. 389; 
 Schoff V. Bloomfield, 8 Vt. 472; Nichols 
 ■V. Renselaer Co. Ins. Co., 22 Wend. 
 (N. Y.) 125; Loring v. Whittemore, 13 
 Gray (Mass.), 228. 
 
 A tender which is refused is equal to 
 a performance. Smith v. Stewart, 5 
 Ind. 220; Preston v. Whitcomb, 11 Vt. 
 47; Lincoln v. Cook, 3 111. 61. 
 
 Where money is awarded and mutual 
 
 State V. Martin, 34 Ark. 340. 
 Falkner v. O'Brien, 2 Ball & B. 
 
 716 
 
Construotions. 
 
 ARISE— ARISEN— ARM. 
 
 ConBtructions.. 
 
 ARISE. — To proceed ; to issue; to spring. ^ 
 
 ARISEN— ARISING— AROSE. See ARISE, n. 
 
 ARM — ARMED. — To furnish ; furnished with arms. (See Arms.) 
 By armed vessel is meant ordinarily one having cannon.'-* A 
 schooner having on board but one musket, a few ounces of pow- 
 der, and a few balls, and po.ssessing little capacity for offence was 
 held not to be an " armed vessel." * 
 
 "an oral argument before the court;" but not barred. Andrews v. Hartford, etc. 
 
 it was also held that "agreeing to waive 
 argument before the court; and taking 
 time to file briefs on the merits of the 
 case, was the same in effect as an oral 
 argument." State of Nev. v. Cal. M. 
 Co., 13 Nev. 210. 
 
 So where the copies of the judgment- 
 roll of the court below were to be de- 
 livered " four clear days before the day 
 appointed for argument," those words 
 were held to refer, not to a day on which 
 the judges met for the purpose of ap- 
 pointing the days for hearing arguments, 
 l)ut to the day on which the argument 
 had been appointed to take place. Parr 
 ■V. Jewell, 16 C. B. 700. 
 
 irse any Argument in his Charge. — The 
 words in a statute prohibiting a judge 
 from using " kny argument in his charge 
 calculated to rouse the sympathy or ex- 
 cite the passion of the jury" do not for- 
 bid his making his charge "argumenta- 
 tive " so long as it comes within the limi- 
 tation prescribed by the latter words. 
 Cesure v. The State, i Tex. App. 23. 
 
 1. In re Bogart. 2 Sawy. (U. S.) 405. 
 
 Case Arising in the Land or Naval 
 Force. — An offence committed by one 
 while in the naval service comes within 
 the above class, although the charge is 
 not actually framed and presented till 
 after the offender ceases to be in the ser- 
 vice. " What does ' arising ' mean as here 
 used? Certainly not merely making a 
 statement of the pre-existing facts, 
 which constitutes a case for judicial cog- 
 nizance. ... A case arising in the land 
 or naval forces . . . appears to us to be a 
 case proceeding, issuing, or springing 
 from acts in violation of the naval laws 
 and regulations committed while in the 
 naval forces or service." In re Bogart, 
 2 S;iwy (U. S.1 3g6. 
 
 Cause of Action shall have Arisen. — 
 Where an action by an administrator is 
 barred unless " commenced within one 
 year after the cause of action shall have 
 arisen," it was held that no cause of 
 action can arise or exist in favor of an 
 administrator until he comes into exist- 
 ence as such, and that a suit brought 
 within one year after his appointment is 
 
 R. Co., 34 Conn. 57. 
 
 Arise Ont of the Sai^e Transaction, re- 
 ferring to "several causes of action,"' 
 means "founded upon." Scarborough 
 ■b. Smith, 78 Hun (N. Y.), 405. 
 
 Arising During the Coarse of the Trial. 
 — After an issue of fact is joined in a 
 criminal case, every step thereafter taken 
 for the purpose of a determination of 
 that issue, up to and including the ver- 
 dict, is a step or proceeding "arising- 
 during the course of the trial " within 
 the meaning of a statute regulating mo- 
 tions for new trials. People v. Turner, 
 39 Cal. 371. See also Reg. v. Martin, 
 Temp. & M. 78. 
 
 Where the Cause of Action Arose, in a 
 statute, referring to the county where 
 trial was to take place, means "where 
 the debt was contracted or originated." 
 Steele v. Comm'rs. 70 N. C. 139. 
 
 Cases Arising under Treaties, in the Con- 
 stitution, means cases in which a par- 
 ty's right grows out of or is protected by 
 a treaty. Owings -v. Norwood's Lessee, 
 5 Cranch (U. S.), 348. 
 
 Cases Arising in a Justice's Court is 
 synonymous with "actions originally 
 commenced " in that court. Cook v. 
 Nellis, 18 N. Y. 127. 
 
 Crimes Arising under the Bevenue 
 Laws include specific acts in violation 
 of the laws made to protect the revenue, 
 but not, in any just sense, a conspiracy 
 to defraud the government, though it 
 may be directed to the revenue as its 
 object. U. S. w. Hirsch. 10 Otto (U. S.), 35. 
 
 Duties Arising on Goods Imported, in 
 a statute regulating the commissions to be 
 received by the collectors of duties on 
 account of such duties, was held to have 
 a future signification. The word "aris- 
 ing" refers to the present time or time to 
 come, but cannot with any propriety 
 relate to time past and embrace former 
 transactions." U. S. v. Heth, 3 Cranch. 
 
 (U.S.) 413. 
 
 2. Attorney-General v. Sillem, 2 H. & 
 
 C. 537- 
 
 3. Murray v, Schr. Betsy, 2 Cranch. 
 (U. S.) 121. 
 
 British Armed Yessel-of-War. — Under 
 
 717 
 
Definition. 
 
 ARM OF THE SEA— ARMS. 
 
 Befinitiou. 
 
 ARM OF THE SEA.— A navigable body of water where the. tide 
 flows and reflows, and so far only as the tide floyvs and reflows.i 
 But "it does not follow that any creek or rivulet in which the 
 tide ebbs and flows, and which may be used at certain tides by 
 small boats for individual convenience, is to be dignified with the 
 appellation of an arm of the sea." * 
 
 ARMS, as used in the Constitution in the provision that " the 
 right of the people to keep and bear arms shall not be infringed," 
 refers to the arms of a militiaman or soldier, and the word is 
 used in its military sense.' The arms of the infantry soldier are 
 the musket and bayonet ; of cavalry and dragoons, the sabre, 
 holster, pistols, and carbjne ; of the artillery, the field-piece, siege- 
 gun, and mortar, with side-arms.* But laws punishing the carry- 
 ing of " concealed weapons" are not unconstitutional.* 
 
 Also, coats-of-arms, escutcheons, crests, cognizances of families.® 
 
 an act permitting any person to de- 
 stroy "any British armed vessel-of-war," 
 it was held not necessary that she should 
 have any particular or specified arma- 
 ment. If she belonged to the British 
 navy, and was used for hostile purposes, 
 being armed with muskets, pikes, cut- 
 lasses, etc., it was enough to bring her 
 within the intention of the act. Parlin 
 ■V. U. S., I Ct. of CI. (U. S.) 174. 
 
 1. Adams v. Pease, 2 Conn. 484. 
 
 2. Glover v. Powell, 2 Stockt. Ch. 
 (N. J.) 223. 
 
 Long Island Sound was held to be an 
 arm of the sea '' within the common-law 
 acceptation of the term, being navigable 
 tide-water, . . . and more specifically an 
 arm of the sea than mere rivers, bays, or 
 inlets; because, in addition to its tide- 
 water and navigable quality, it is without 
 the territorial limits of any county." The 
 Sloop Martha Anne, Olcott (U. S ), 21. 
 
 3. English v. State, 35 Tex. 476. In 
 this case it is said: "The provision pro- 
 tects only the right to ' keep ' such arms 
 as are used for the purpose of war in 
 distinction from those which are em- 
 ployed in quarrels and broils and fights 
 between maddened individuals, since 
 such only are properly known by the 
 name of 'arms,' and such only are 
 adapted to promote the 'security of a 
 free State.' In like manner the right to 
 ' bear ' arms refers merely to the military 
 way of using; them, not to their use in 
 bravado and affray." 
 
 To the same effect are Fife v. State, 31 
 Ark. 455; Andrews v. State, 3 Heisk. 
 (Tenn.) 179, in which cases acts pro- 
 hibiting the carrying of such weapons 
 as pistols, dirk, and bowie-knives, etc., 
 were held constitutional. See, contra, 
 Munn V. State, i Kelly (Ga.), 251, 
 where so much of a similar act as con- 
 
 tained a prohibition against bearing 
 arms openly was held in conflict with the 
 Constitution and void. "The right of 
 the whole people, old and young, men, 
 women, and boys, and not militia only, 
 to keep and bear arms of every descrip- 
 tion, and not such merely as are used by 
 the militia, shall not be infringed, cur- 
 tailed, or broken in upon in the smallest 
 degree-.' . . . Lexington, Cjoncord, Cam- 
 den, River Raisin, Sandusky, and the 
 laurel-crowned field of New Orleans 
 plead eloquently for this interpretation !" 
 Loaded Arms. — On indictments for 
 attempts to discharge "loaded arms," 
 under stat. 9 Geo. IV. c. 31, §§ 11 and 12. 
 the following were held not to be "loaded 
 arms:" a pistol loaded with gunpowder 
 and balls, but with its touch-hole so 
 plugged that it could not by any possi- 
 bility be fired; a tin box'sent^ to a person, 
 containing gunpowder and two detona- 
 tors intended to ignite the powder when 
 any one opened the box. Rex v. Harris, 
 
 5 C. & P. 159; Rex V. Mbuntford, 7 C. 
 
 6 P. 242. 
 
 Arms to Aid his Escape. — Sending a 
 prisoner an instrument of writing inform- 
 ing him that he has a friend and can be 
 released from confinement is no violation 
 of a, statute prohibiting the conveying- 
 to any person lawfully imprisoned of 
 "any disguised instrument, arms, or 
 other thing proper or useful to aid any 
 prisoner in his escape." Hughes v. 
 State, I Eng. (Ark.) 131. 
 
 4. English V. State, 35 Tex. 476. 
 
 5. See cases cited in n. 3, and Hill v. 
 State, 53 Ga. 572; Wright v. Common- 
 wealth, 77 Pa. St. 470; Chatteaux v. 
 State, 52 Ala. 388; Cooley on Const. 
 Lim. sec. 350, n. 
 
 6. Rap. and Lawr. L. Diet. 
 
 Arms of tliis lenitory. — "Arms" in a 
 
 718 
 
AROMATIC— ARRAIGNMENT—ARREARS— ARREST. 
 
 AROMATIC. — A quality possessed by liquor.^ 
 
 ARRAIGNMENT. — The calling of the prisoner to the bar of the 
 court to answer the matter charged upon him in the indictment.'-* 
 
 ARRANGEMENT. — The natural meaning of this word is, setting 
 in order.' 
 
 ARREARS. — Money due and owing ; as, where calls on stock are 
 not paid when due the holder is said to be in arrears.* 
 
 ARREST (Civil Cases). (See also Arrest (Criminal Cases).) 
 
 1. By Statute. 
 
 2. The Law Determining the Right to 
 
 Arrest. 
 
 3. Process — How Obtained. 
 
 4. Execution for Costs. 
 J. Breaking Doors. 
 
 6. Time of Arrest. 
 
 7. Privilege. 
 
 8. Married Women. 
 
 9. Foreign Ministers. 
 
 10. Waiver. 
 
 1 1 . Discharge from Illegal Arrest. 
 
 12. Second Arrest. 
 
 13. Contempt. 
 
 1. By Statute. — In most jurisdictions the arrest of the defendant 
 in a civil action or suit is permitted by statute in certain cases.' 
 
 statute enacting that the "arms of this 
 territory" should be engraved on notarial 
 seals was held to mean "the armorial 
 ensigns'of a State or political community 
 intended to distinguish it from others, 
 which is usually transferred to its national 
 flag or banner. Yet perhaps a public 
 flag cannot always be considered as a 
 true indication of the arms of the country 
 to which it belongs; for most countries 
 have two banners — the one borne by 
 vessels of war, and the other by those 
 engaged in commerce." Kirkrey v. 
 Bates, 7 Port. (Ala.) 534. 
 
 1. " The word ' aromatic ' is employed 
 as expressive of one of the qualities of 
 the plaintiff's liquor, and therefore can 
 not be claimed as a trademark.". Burke 
 V. Cassin, 45 Cal. 480. 
 
 2. Goodwin v. The State, 16 Ohio St. 
 346, quoting Bla. Com. 4, 322, and Ros. 
 Crim. Ev. 224 ; Jackson ii. Com. 19 
 Gratt. (Va.) 656. 
 
 Arraignment of the Prisoner. — " To take 
 order that he appear and for the certainty 
 of the person to hold up his hand and to 
 plead a sufficient plea to the indictment 
 or other record." Com. v. Hardy, 2 
 Mass. 306, quoting Co. Litt. 263, a. 
 
 3. Tetley v. Taylor, I El. & Bl. 540. 
 It is a very wide and indeiimte term 
 
 and does not necessarily mean a positive 
 agreement. Manning v. Eastern Co. R. 
 Co., 12 M. & W. 253. 
 
 4. Kahn v. The Bank of St. Joseph, 70 
 Mo. 262. 
 
 Arrears of Bent. — Under a devise of 
 
 I " arrears of rent and interest due at my 
 
 jeath," an annuity due at testator's 
 
 death would pass. Hele v. Gilbert, 2 Ves. 
 Sr. 430. 
 
 Arrears of Taxes.— 'Arrearsmeans some- 
 thing, behind in payment; it implies a 
 duty and a default ; therefore ta.\es could 
 not be in arrears until the rate was fixed. 
 Corbett v. Taylor, 23 U. C. S. B. 454. 
 
 5. At common law, the arrest of the 
 defendant upon civil process was only 
 allowed for civil injuries accompanied by 
 force. I Tidd Prac. 128; 3 Blk. Coram. 
 281; Freeman on Executions, § 451. 
 But in any action where the king was 
 plaintiff he could take the body of the 
 defendant in execution. Freeman on Exe- 
 cution, § 451; Harbert's Case, 3 Co. 12, b. 
 
 By successive statutes the right of 
 arrest upon mesne process was given in 
 all or nearly all kinds of actions. 3 Black. 
 Com. 281; Freeman on Executions, §451. 
 Moreover, it was the practice to bring an 
 original writ of trespass vi et armis in all 
 ceses under which defendant could be ar- 
 rested, and then, by connivance of the 
 court, to prosecute for any less forcible 
 injury. 3 Black. Com. 281. 
 
 At the present day, civil arrest is 
 everywhere regulated by statute, and the 
 right of arrest, formerly existing in nearly 
 all classes of actions, has been materi- 
 ally restricted. Freeman on Executions, 
 § 451. The right of arrest is now gener- 
 ally confined to cases of tort for personal 
 injury, or where fraud or a breach of a 
 fiduciary duty on the part of the defendant 
 is involved, or where the defendant 
 attempts to dispose of his property or 
 conceal it from levy. Freeman on Exe- 
 cutions, § 451. 
 
 719 
 
By Statute, 
 
 ARREST. 
 
 By Statutes 
 
 A civil arrest may be either on mesne or fihal process.* 
 The object of arrest on mesne process is to compel the defendant 
 to appear in the cause.** 
 
 In most States there are constitutional 
 provisions prohibiting arrest or imprison- 
 ment for debt. Ala. Const, art. i, § 
 22; Ariz. B. Rights, iS; Ark. Const, 
 art. I, § 14; Cal. Const, art. i, § 15; 
 Fla. Constit. Decl. of Rights, 15: Ga. 
 Const, art. i, ch. i, § 21; Ind. Const, 
 art. I, § 22; Iowa Const, art. T, § 19; 
 Kan. Const. Bill of Rights, 16; Md. 
 Const, art. 3, § 38; Mich. Const, art. 6, 
 § 33; Minn. Const, art. i, § 12; Miss. 
 Const, art. I, § 11; Mo. Const, art. 2, 
 § 16; Neb. Const, art. i, § 20; N. J. 
 Const, art. i, § 17; Nev. Const; art. I, 
 § 14; N. Car. Const, art. I, § 16; Ohio 
 Const, art. I, § 15; Oreg. Const, art. I, 
 § ig; S. Car. Const, art. ij § 20; Tenn. 
 Const, art. i, § 18; Texas Const, art. I, 
 § 18; Wis. Const, art. i. § 16; Stimson 
 Am. Stat. Law, § 80. But such consti- 
 tutional provisions ordinarily permit ar- 
 rest for fraud either in civil or criminal 
 actions. Stimson Am. Stat. Law, § 80. 
 Constitutional provision prohibiting ar- 
 rest in case of debt held not to apply to 
 arrest in actions of tort. Long v. Mc- 
 Lean, 88 N. Car. 3; Ex parte Hardy, 68 
 Ala. 303; McKindley v. Rising, 28 III. 
 337. But where the constitution prohibits 
 imprisonment for debt, except in case of 
 fraud, a statute allowing the arrest of the 
 defendant in actions of breach of promise 
 of marriage is unconstitutional, Moore 
 V. Mullen, 77 N. Car. 327. 
 
 Where, in ball-trover, by election of the 
 plaintiff, the jury returned an alternative 
 verdict for a specified amount of mone.v, 
 to be discharged by the delivery of 
 property within twenty days, and the 
 defendant failed to deliver it within such 
 time, the verdict became absolute for 
 money. Therefore, further imprison- 
 ment under the bail process would be 
 for a debt, and hence unconstitutional. 
 Southern Express Co. v. Lynch, 65 Ga. 
 240. 
 
 A statute allowing a judge to imprison 
 a debtor for refusal to obey an order for 
 
 not affected thereby. Com. v, Webster, 
 8 Gratt, (Va.) 702. 
 
 1. The mesne process at common law 
 was called a writ of capias ad responden- 
 dum, the final, a writ of capias ad satisfa- 
 ciendum. I Tidd Pr, 128, 1025; 3 Black. 
 Comm. 281, 414, 
 
 The early English statutes enlarging 
 the right of arrest, provided for arrest on 
 mesne process only, but the courts as- 
 sumed that, whenever arrest on mesne 
 process was allowed, the defendant might 
 be arrested on final process as well. 
 Freeman on Executions, § 451; 2 Tidd 
 Pr, 1025. 
 
 2. 3 Blk. Comm. ago, 414. 
 
 The object of the arrest being only to 
 compel an appearance, the defendant was, 
 under the former English practice, entitled 
 to release on furnishing special bail to 
 appear, his appearance being effected by 
 furnishing bail to the action — that is, to 
 pay any judgment that might be entered 
 against him in the action. 3 Blk. Comm. 
 2go, 2gi. , 
 
 The writ of capias ad respondendum ap- 
 pears originally to have been a writ by 
 the court to compel obedience to its 
 summons, which, in theory, though iiDt in 
 practice, was served upon the defendant 
 before the capias was issued, and in 
 contempt of which the defendant was, 
 by fiction of laW, supposed to stand when 
 the capias was issued. 3 Blk. Comm. 287. 
 Where a defendant was in custody 
 under a writ of capias ad respondendum, 
 the plaintiff could not, after judgment, 
 proceed against his body, unless he first 
 charged him in execution, and if he failed 
 to do so within two terms after judg- 
 ment, the defendant was entitled to be 
 released, i Tidd Pr. 362, 363; U. S, v. 
 Griswold, 6 Sawy. (U. S. C, Ct,) 255. 
 
 Where judgment in an action has been 
 perfected against the defendant, and he 
 has been charged in execution, a provi- 
 sional order of arrest issued thereon is 
 extinguished, and is thereafter of no 
 
 personal examination, in aid of execution, force or validity; it is not revived by a 
 
 IS not in violation of a constitutional 
 provision that no person shall be deprived 
 of life, liberty, or property without due 
 process of law. Eikenbury v. Edwards, 
 25 N, W. Repr. (Iowa) 832. 
 
 Where capias ad satisfaciendum had 
 been expressly abolished (by statute), it 
 was held that the right of the State to 
 enfbrce the payment of a judgment for a 
 fine and costs by a capias pro fine was 
 
 reversal of the judgment. Accordingly 
 held, that, upon such reversal, the relators, 
 who were held in confinement under the 
 execution, could not be held under the 
 order of arrest, but were entitled to their 
 discharge. As to whether a new order of 
 arrest may be obtained, qucere. People 
 V. Bowe, 81 N. Y. 43, 
 
 Statutes generally provide the time in 
 which the body of a defendant arrested 
 
 720 
 
Sight to Arrest. 
 
 ARREST. 
 
 Affidavit and Bond, 
 
 Arrest on final process is for the purpose of taking the 
 body of the defendant in execution upon a judgment of some 
 court. 1 
 
 2. The Law Determining the Right to Arrest. — Arrest being wholly 
 a niatter of remedy, the right of arrest depends upon the law of 
 the jurisdiction where the action is brought.'-* 
 
 3. Process — How Obtained — Affidavit and Bond. — In most jurisdic- 
 tions the filing by the plaintiff of an affidavit making a case for 
 arrest within the provisions of the statute,^ and of a bond to 
 indemnify the defendant in case the arrest is adjudged unau- 
 thorized,* are prerequisites to the issuance of mesne process o£ 
 arrest. 
 
 on mesne process must be charged in 
 execution. U. S. v. Griswold, 6 Saivy. 
 (U. S. C. Ct.) 255. 
 
 1. Where the body of the defendant is 
 taken on a ca. sa., the judgment is satis- 
 fied conditionally; that is, no proceed- 
 ings can be had upon it while ihe defend- 
 ant is held. Freeman on Executions, § 
 462. 
 
 And an arrest of the defendant and 
 his subsequent release by the plaintiff is 
 an absolute satisfaction of the judgment. 
 Freeman on Executions, § 464, and cases 
 cited; iVIagniac z'. Thompson, 15 How. 
 (U. S.) 281; Harden w. Campbell, 4 Gill 
 (Md.), 29. 
 
 But where the imprisoned debtor es- 
 capes, the judgment thereupon revives. 
 Freeman on Executions, § 463. 
 
 So also where he is discharged for non- 
 payment of court fees or on taking the 
 poor debtors' oath. Freeman on Execu- 
 tions, § 463. 
 
 2. Imlay v. EUefsen, 2 East. 453; 
 Robinson w. Bland, 2 Burr. 1077; Hinck- 
 ley z: Marean, 3 Mason (U. S. C. Ct.), 88; 
 Titus V. Hobart, 5 Mason (U. S. C. Ct.), 
 378; Peck w. Hozler, 14 Johns. (N. Y.) 
 346; Smith V. SplnoUa, 2 Johns. (N. Y.) 
 198. 200; Atwater v. Townsend, 4 Conn. 
 47; Woodbridge v. Wright, 3 Conn. 523. 
 
 Accordingly it was held that poor 
 debtor laws of the State, under which the 
 person of the debur was exempted from 
 arrest, but which did not release the debt, 
 would not be obsi,ived in the Federal 
 courts sitting within the State. Read ». 
 Chapman, Peters (U.S.C.Ct ), 404; Camp- 
 belt V. Claudius. Peters (U. S. C. Ct.), 484. 
 
 By act of Congress Federal courts 
 are now required to observe the laws of 
 the State in which they sit, limiting or 
 restricting the power to imprison for 
 debt. U. S. R. S. §§ 990. 991. 
 
 3. The requirements of the affidavit 
 are governed by statute. In some 
 States it cannot be made by an attorney. 
 £x parte Hartley, 5 Ark. 32. 
 
 In others it can. Wilson v. Nettletotr^ 
 12 111 6r. 
 
 Information and Belief. — Under some- 
 statutes it has been held that a credlfor 
 must swear positively, of his own knowl- 
 edge, as to the existence and amount of 
 his claim. Herwig v. Beach. 15 La. 
 Ann. 261; Herf v. Schulze, 10 Ohio, 
 263; Crane v. Fish. 2 Miles (Pa.), 165; 
 /;• re Nicholson, 2 Milep (Pa.), 322. Com- 
 pare Com. V. Fritz, 2 Miles (Pa.), 336. 
 See also Lewis «<. Brackenridge, i Blackf.. 
 (Ind.) 112. 
 
 In the absence of any express statutory^ 
 provision as to whether the affidavit must 
 state the knowledge of the affiant, or 
 whether a statement of information and; 
 belief Is sufficient, it has been held that 
 it must in general state the affiant's knowl- 
 edge. McGilvery v. Morehead, 2 Cal. 
 607; Meddaugh v. Williams, 48 Mich. 
 172; De Long v. Briggs, 47 Mich. 624;. 
 Whitlock V. Roth, 5 How. Pr (N.Y.) 143; 
 Crandall v. Bryan, 15 How. Pr. (N. Y.)- 
 48; Satow V. Reisenberger, 25 How. Pr. 
 (N. Y.) 164; Union Bank v. Mott, 9 Abb. 
 Pr. (N. Y.) 106. 
 
 But the affidavit may be an information, 
 and belief if it states the sources whence 
 information was derived, and where the 
 informants reside, if the residence of such 
 informants be so remote that their sworn, 
 affidavits cannot be had in time to make 
 a successful arrest. City Bank v. Lum- 
 ley, 28 How. Pr. (N. Y.) 397; Whiilock^ 
 V. Roth, 5 How. Pr. (N. Y ) 143; Cran- 
 dall zj. Bryan, 15 How. Pr. (N. Y.) 48;. 
 Matoon v. Eder, 6 Cal. 57. 
 
 If the Information is derived from, 
 documents, this should be staled, and the 
 documents presented with the applica- 
 tion or copies of them furnished. De 
 Nierth v. Snider, 25 How. Pr. (N. Y.)- 
 419. 
 
 4. Newell v. Doran, 21 How. Pr. 
 (N.Y.) 427. 
 
 The validity of the process depends 
 upon the validity of the affidavit. If the- 
 
 I C. of L.— 47 
 
 721 
 
Hzecution of Process. 
 
 ARREST. 
 
 Breaking Boors. 
 
 4. Execution of Process. — The law as to what constitutes an ar- 
 rest^ and as to the manner of making an arrest, the rights, duties,* 
 and liabilities of officers, killing of officers, etc., is the same 
 for both criminal and civil arrests, and the reader is referred to 
 the treatment of those topics under the head of CRIMINAL AR- 
 REST, post, p. 730. 
 
 5. Breaking Doors. — In arresting civilly, an officer may enter the 
 house of the person to be arrested, if the outer door be open.^ 
 But he may not break the outer door,* unless he has once been 
 lawfully in the house in making the arrest ; in which case he may 
 re-enter, using as much force as may be necessary.* 
 
 A ca. sa. or a fi. fa., executed by breaking outer doors was 
 
 affidavit is defective the writ is void. 
 Hauss V. Kohlar, 25 Kan. 640; Tennent 
 fu. Weymouth, 25 Kan. 21 ; Devrees v. 
 Summit, 86 N. Car. 126; McGilvery v. 
 Morehead, 2 Cal. 607 ; Meddaugh v. 
 Williams, 48 Mich. 172; Tower?'. Kings- 
 ton, I Browne (Pa.), 33; Lewis v. Bracs- 
 enridge, i Blackf. (Ind.) 112; Hitchcock 
 V. Baker, 2 Allen (Mass ), 431. 
 
 In New York no affidavit is necessary 
 in order to arrest the defendant on final 
 process where the facts warranting arrest 
 appear on the face of the record and are 
 essential to support the judgment. Free- 
 man on Executions, §453; Richtmeyer w. 
 Remsen, 38 N. Y. 206; Niver v. Niver, 
 19 Abb.- Pr. (N. Y ) 14; Elwood v. 'Gard- 
 ner, 45 N. Y. 349; Keeler o. Clark, 18 
 Abb. Pr. (N. Y.) 154. 
 
 But if the facts necessary to warrant 
 an arrest are extrinsic to the cause of ac- 
 tion and need not appear on the face of 
 the record, an affidavit averring such facts 
 is necessary, and process of arrest must 
 be sued out before judgment. Freeman 
 on Executions, § 453; Atocha v. Garcia, 
 15 Abb. Pr. (N.Y.) 303; Elwood v. Gard- 
 ner, 45 N. Y. 349. 
 
 Execution for Costs.— No affidavit is 
 necessary in case of an arrest upon an 
 execution for costs. Gibbs v. Taylor, 9 
 N. E. Rep. (Mass.) 576, 
 
 1. Arresting the defendant while privi- 
 leged as a suitor, the defendant being sub- 
 sequently released by the officer, is not 
 an execu'ion of the writ. Wheeler v. 
 JBarry, 6 Vt. S79- 
 
 2. A return of rescue is a good return 
 of a mesne process of arrest, but not of a 
 final. In the latter case the sheriff must 
 call in aid the posse comitatus. Buck- 
 minster V. Applebee, 8 N. H. 546. 
 
 3. Semayne's Case, 5 Co. 91, a. 
 
 So if the door be unlatched or ajar. 
 Allen z/. Martin, 10 Wend. (N. Y.) 301; 
 Com. Dig, Exec. c. 5. 
 
 Where sheriff, on a ca. sa., touched his 
 
 prisoner, through a broken pane, and 
 then broke outer door, ield, a good ar- 
 arrest. The English rule is that sheriff 
 may lift the latch of the outer door, or 
 enter the house in the Ordinary way, and 
 make a good arrest. 2 Add. Torts 
 (Wood's Ed.), p. 122. The rule is uni- 
 versal, however, in the United States, so 
 far as the point has been up, that the 
 officer may not enter without license, 
 unless the outer door be open. Boggs v. 
 Vandyke, 3 Harr. (Del.) 288; Curtis v. 
 Hubbard, 4 Hill (N. Y.), 437. 
 
 If the officer gets in, in the absence 
 of evidence as to the manner of his en- 
 try, it will not be presumed that he broke 
 in. Kneas v. Fitler, 2 S. & R. (Pa.) 
 263. 
 
 He may not use pretence (as that he had 
 a note for the defendant) to gain admit- 
 tance. Rex V. Backhouse, Lofft, 61. 
 
 4. Year B., 18 Ed. 4, p. 4, pi. ig; Hem- 
 minway v. Saxton, 3 Mass. 222; White 
 V. Wiltshire, 2 RoUe, 137; Cook's Case. 
 Cro. Car. 537; 3 Bl. Com. 288; Bucken^ 
 ham V. Francis, It Moore, 40; Curtis v. 
 Hubbard, 4 Hill (N. Y.), 437; Kerbey v. 
 Denby, I M. & W. 336; Hooker v. Smith, 
 19 Vt. 151; Snydacker v. Brosse, 51 111. 
 
 357. 
 
 Even on demand made. Semayne's 
 Case, 5 Co. 91, a. 
 
 If he do, it is trespass. Anon., 6 Mod. 
 105. case 147. 
 
 When once in, he may break the outer 
 door to get out. Pugh v. Griffith, 7 A. 
 & E. 826; Com. Dig. Exec. c. 5. 
 
 5. Genner v. Sparks, 6 Mod. 173. 
 
 In general, after the arrest has been 
 made, outer doors may be broken to re- 
 take. Case of John Fish v. William 
 Fish, cited, 2 RoUe, 138; 3 Black Com. 
 288; Anon., 7 Mod. 8, case 6; Sandon v. 
 Jervis, E. B. & E. 935; Glover v. Whit- 
 tenhall, 6 Hill (N. Y.), 597; Sanders v. 
 Millward, 4 Harr. (Del.) 246; Allen v. 
 Martin, 10 Wend. (N. Y.) 301. 
 
 722 
 
Breaking Doors. 
 
 ARREST. 
 
 Time of Arrest. 
 
 originally held valid, and the injured party left to his action of 
 trespass.^ Such is not now the law.'-* 
 
 The protection of the outer door extends only to a man, his 
 family, and proper goods.* 
 
 After entering the house, either of the debtor or a third person, 
 an officer may break inner doors, to execute civil process.* 
 
 He may likewise break the inner or outer doors of barns, stores, 
 or'other buildings, not the dwelling of the debtor.^ 
 
 The authorities seem to make no distinction between the rights 
 and duties of officers in the matter of breaking doors to execute 
 civil process, whether the person or the goods of a man be sought 
 to be taken.® 
 
 6. Time of Arrest. — At the common law, service of process 
 might.be had by night or day,* or on Sunday.* 
 
 By Stat. 29 Car. II. c. 756, however, arrests on Sunday were 
 prohibited, except for treasons, felonies, and breaches of the 
 peace. Proceedings on Sunday coming within this provision are 
 void.' 
 
 A debtor, however, who escapes may be retaken, notwithstand- 
 ing 29 Car. II.** Not, however, after a voluntary escape.'-* 
 
 1. Year B., 18 Ed. 4, p. 4, pi. 14. 
 
 2. Curtis V. Hubbard, 4 Hill (N. Y.), 
 437; People V, Hubbard, 24 Wend. (N. 
 Y.) 369, and cases; Ilsley v. Nichols, 12 
 Pick. (Mass.) 270. 
 
 3. Com. Dig. Exec. c. 5; Semayne's 
 Case, 5 Co.. 91, a; 3 Blk. Comra. 288. 
 
 Officer may not break outer door of a 
 third person on the mere suspicion that 
 the debtor or his goods are within. 
 Johnson v. Leigh, 6 Taunt. 246. And 
 on a writ de homine replegiando it was 
 held that sheriff may not break the outer 
 door of a stranger, unless the man he was 
 commanded to take was there. Stanhope 
 V. Dawson, 2 Lut. 1428. 
 
 Residence of a person must be bona 
 fide in a house for the protection of the 
 outer door to extend to him or his goods. 
 Gordon v. Clifford, 28 N. H. 402. 
 
 As to who are residents in their own 
 dwellings, and who in the house of a 
 third person (lodgers, etc.), see. King v. 
 Rogers, 11 Moore, 40; King?/. Trapshaw, 
 II Moore, 429; King v. King v. Carrel, 
 II Moore, 237; Oysted v. Shed, 13 
 Mass. 520; Swain v. Minzer. 8 Gray 
 (Mass.), 182 ; Williams v. Spencer, 5 
 Johns. (N. Y.) 352; Tracy v. Talbot, 6 
 Mod. 214; 2 Wood's Add. Torts, 124, 
 II. I. 
 
 Bail may enter the house of a third per- 
 son to take his principal. Sheers v. 
 Brooks, 2 H. Black, 120. 
 
 4. Com. Dig. Exec. 5; Morrish v. Mur- 
 ray, 13 M. & W. 52; Lee v. Gansel Cowp. 
 i.; Hutchison v. Birch, 4 Taunt. 619; 
 
 Hubbard v. Mace, 17 Johns. (N. Y.) 127; 
 Prettyman v. Dean, 2 Harr. (Del.) 494; 
 Rex ». Bird, 2 Show. 87. 
 
 Should demand admission before break- 
 ing inner door. Ratcliffe v. Burton 3 
 B. & P. 223. See, contra, Hutchinson v. 
 Birch, 4 Taunt. 619. Officer may break 
 window of a room to effect arrest, after 
 entering outer door. Lloyd v. Sandi- 
 lands, 2 Moore, 207. Illness does not pro- 
 tect against forcing inner doors. Smith 
 V. Butler, Comb. 326. 
 
 As to what are outer and what in- 
 ner doors, see Hopkins v. Nightingale, 
 I Esp. 99; Whalley v. Williamson, 7 C. 
 & P. 294; Stedman v. Crane, 11 Mete. 
 (Mass.) 295. 
 
 5. Pentonz/. Brown Sid. 186; Fullerton 
 V. Mack, 2 Aik. (Vt.) 415; Haggerty v. 
 Wilber, 16 Johns. (N.Y .) 287; Stitt v. 
 Wilson, Wright (Ohio), 505. 
 
 6. Ilsley !<. Nichols, i2Pick.(Mass.)270. 
 
 7. Com. Dig. Exec. c. 5; Stone's Case, 
 I2g Mass. 156; Mackallay's Case, 9 Co. 
 65. b. 
 
 8. Mackallay's Case, 9 Co. 65, b; 
 Keith V. Tuttle, 28 Me. 28. 
 
 9. 3C<iit. Gen. Pr. 75, Am, Ed.; 
 Lyford v. Tyrrel, l Anstr. 85 ; Wilson v. 
 Tucker, i Salk. 78; King v. Strain, 6 
 Blackf. (Ind.) 447; Brookes v. Warren, 
 Bl. R. 1273. 
 
 10. Atkinson v. Jameson, 5 T. R. 25; 
 Parker v. Moore, 2 Salk. 626. 
 
 11. Featherstonehaugh v. Atkinson, 
 Barnes, 373 ; Rayner v. Sharp, Cooke, 
 33- 
 
 723 
 
Priyilege. 
 
 ARREST. 
 
 Attendance upon Court, 
 
 Privilege. — Attendance upon Court. — Suitors,^ Witnesses,'-* At- 
 
 1. Henegar v. Spangler, 2g Ga. 217; 
 Salhinger v. Adler, 2 Robt. (N. Y.) 704; 
 Blight V. Fisher, Pet. (U. S. C. Ct.) 41; 
 Harris v. Grantham, I N. J. L. 142; 
 Commonwealth v. Ronald, 4 Call. (Va.) 
 97; Richards v. Goodson. 2 Va. Cas. 
 381; Hurst's Case, 4 Dall. (U.S.) 387; 
 McNeil's Case, 6 Mass. 245; Hammer- 
 skold V. Rose, 7 Jones (N. Car.) L. 629; 
 Contra, see Hannum v. Askew, i Yeates 
 (Pa.), 25. Accord, McFerran v. Wherry, 5 
 Cranch. (U. S. C. C.) 677; Steinmetz v. 
 Wade, 3 W. N. C. (Pa.) 187; Ex parte 
 Hurst, I Wash. (U. S. C. C.) i86; Solomon 
 V. Under hill, i Camp. 229. 
 
 The suitor's privilege applies in the case 
 of non-resident suitors. Henegar v. 
 Spangler, 29 Ga. SI7; Pelt's Case, i Rich. 
 (S. Car.) L. 197. It a)so applies in the 
 case of one who should have been, but 
 was not, joined asa party. Ex parte 
 Britten, 4 Jur. 943. 
 
 A petitioning bankrupt is privileged as 
 a suitor. In re Kimball, 2 Ben. (U. S.) 
 38. So is a creditor attending to prove 
 hisclaim. iS'jr/n)"/? King, 7 Ves., Jr. 312; 
 Selby V. Hills, 8 Bing. 166; Wood v. 
 Neale, 5 Gray (Mass.), 538. 
 
 Criminal jProoeedings. — The suitor's 
 privilege does not cover the case of a de- 
 fendant in a criminal prosecution. Com- 
 monwealth V. Daniel, 4 Pa. L. J. 49; 
 Moore v Green, 73 N. Car. 394; Key v. 
 Jetto. I Pitts. (Pa.) 117; Scott t;. Curtis, 
 27 Vt. 762; Lucas V. Albee, i Den. (N. 
 Y.) 666; Jacobs u. Jacobs, 3 Dowl. P. 
 675; Anonymous, i Dowl. P. 157; Good- 
 win V. Lonion, i Ad. & El. 378; Hare v. 
 Hyde, 16 Q. B. 394; Slade v. Joseph, 5 
 Daly (N. Y.). 187; Williams v. Bacon, 10 
 Wend. (N. Y.) 636. 
 
 A defendant in a criminal proceeding 
 may be immediately arrested on civil 
 process after acquittal and discharge. 
 Commonwealth v. Daniel. 4 Pa. L. J. 49; 
 Moore v. Green, 73 N. Car. 394; Hare 
 V. Hyde, 16 Q. B. 394; Goodwin v. 
 Lord, I Ad. & El. 378; Anon., i Dowl. 
 P. 157. Or after conviction and dis- 
 charge on payment of fine. Lucas v. 
 Albee, i Den. (N. Y.) 666. 
 
 One discharged from arrest by an ex- 
 amining magistrate may be immediately 
 arrested. Jacobs v. Jacobs, 3 Dowl. P. 
 675. So one admitted to bail in criminal 
 proceedings or released on recognizance 
 may be immediately arrested. Moore v. 
 Green, 73 N. Car. 394; Key v. Jetto, i 
 Pitts. (Pa.) 117. Compare Callans v. 
 Sherry, Al. & Nap. (Canada) 125; Gilpin 
 ■u. Cohen, L. B. 4 Exch. 131; Bours v. 
 
 Tuckernfian, 7 Johns. (N. Y.) 538. The 
 arrest is not invalid, although made be- 
 ,fore the defendant has left the court- 
 room. Hare v. Hyde, 16 Q. B. 394; 
 Moore v. Green, 73 N. Car. 394. 
 
 A defendant brought into the jurisdic- 
 tion on a criminal charge may be arrested 
 for debt. Slade v. Joseph, 5 Daly (N. Y.), 
 187; La Grave's Case, 14 Abb. Pr. N. S. 
 (N. Y.) 333, n. But where the criminal 
 charge is used merely as a pretext to get 
 the defendant within the jurisdiction, he 
 cannot, upon his discharge, be arrested 
 on civil process by the persons instru- 
 mental in procuring his arrest on the 
 criminal charge. Benninghoff.i'. Oswell, 
 37 How. Pr. (N. Y.) 235; Slade v. Jo- 
 seph, 5 Daly (N. Y.), 187;, La Grave's 
 Case, 14 Abbott Pr. N. S. (N. Y.) 
 333. n. 
 
 Habeas Corpus. — One discharged on 
 writ of Jtaieas corpus is entitled to the 
 suitor's privilege while returning home. 
 King V. Blake, 2 Npv. & M. 312; R. v. 
 Douglas, 7 Jur. 39. 
 
 Common Informer, — A common in- 
 former cannot claim the suitor's privi- 
 lege. Ex parte Cobbett, 7 El. & Bl. 955. 
 
 3 Dickenson's Case, 3 Harr. (Del.) 
 517; Ballinger v. Elliott, 72 N Car. 596; 
 May ^. Shuwway, 16 Gray (Mass.), 86; ' 
 Thompson's Case, 122 Mass. 428; 
 McNeil's Case, 6 Mass. 264; Huntington 
 w. Schultz, Harp. (S. Car.) 452; Ex parte 
 Edme, 9 S. & R. (Pa.) 147; Sandford v. 
 Chase, 3 Cow. (N. Y.) 381; In re Kim- 
 ball. 2 Ben. (U.S.) 38; Hopkins i;. Coburn, 
 I Wend. (N. Y.) 292; Dixon v. Ely, 4 
 Edw. (N. Y.) 557; Norris v. Beach, 2 
 Johns. (N. Y ) 294; Meekins v. Smith, i 
 H. Blk. 636; Walpole v. Alexander, 3 
 Doug. 45; Ex parte Temple, 2 Ves. & B. 
 39ii 395! Spencer v. Newton, 6 Ad. 
 & El. 623; Persse v. Persse, 5 H. of 
 L. C. 671; Rishton v. Nisbett, i M. & 
 Rob^ 347. 
 
 A witness voluntarily attending (with- 
 out being subpoenaed) in his own State, 
 is not privileged. Hardenbrook's Case, 
 8 Abb. Pr. (N. Y.) 416; Rogers v. Bul- 
 lock. 2 Pen. (N. J. L.) 517; McNeil's 
 Case, 6 Mass. 264. But a witness resid- 
 ing in another State, is privileged, though 
 attending voluntarily. Jones v. Knauss, 
 31 N. J. Eq. 211; May v. Shumway, 16 
 Gray (Mass.). 86; Ballinger v. Elliott, 72 
 N. Car. 596; Hopkins v. Coburn, i Wend. 
 (N. Y.) 292; Dixon v. Ely, 4 Edw. (N. Y.) 
 557; Norris v. Beach, 2 Johns. (N. Y.) 
 294. 
 
 Bankrupt. — A petitionmg bankrupt at- 
 
 734 
 
Privilege. 
 
 ARREST. 
 
 Attendance upon Court. 
 
 torneys,! judges,* jurors, and other officers of the court^ are 
 exempt from civil arrest* while attending in court'' in their re- 
 
 tending before commissioners to be ex- 
 amined is privileged as a witness. In re 
 Kimball, 2 Ben. (U. S.) 38; Ex parte 
 Ross. I Rose, 260. 
 
 Public Prosecutor. — One attending 
 court as public prosecutor is privileged. 
 Montague v. Harrison, 3 C. B. N. S. 
 292. 
 
 1. Attorneys, lilce suitors and witnesses, 
 are privileged from arrest while in at- 
 tendance in court upon professional busi- 
 ness, and while going so to attend, and 
 while returning after such attendance. 
 Attorney-General w Skinners Co., 8 Sim. 
 377; Newton v. Harland, 8 Scott, 70; 
 Anon., Lofft, 434; Castle's Case, l5 Ves. 
 412; Williams v. Webb, 5 Scott N. S. 
 8g8; Ogden v. Hughes, 2 South. (N. J.) 
 178; Gibbs V. Loomis, 10 Johns. (N. Y.) 
 463; Secor V. Bell, 18 Johns. (N. Y.) 52; 
 Commonwealth v. Ronald, 4 Call. (Va.) 
 
 97- 
 
 To entitle to exemption, the attendance 
 must be in behalf of a party to some 
 cause or proceeding. One attending the 
 justification of bail as legal adviser for 
 ' bail, is not privileged. Jones v. Marshall, 
 2 C. B. N. S. 615. 
 
 Attorneys have no general perpetual 
 exemption from arrest. Respublica v. 
 Fisher, i Yeates (Pa.). 350; Gibbs v. 
 Loomis, 10 Johns. (N. Y.) 463; Elam v. 
 Lewis, 19 Ga. 608. 
 
 According to the former English prac- 
 tice, an attorney had the right to be sued 
 by bill in the court of which he was an at- 
 torney, and he could not in that court be 
 arrested on mesne process. Weeks on 
 Attorneys. § 108; Brooks v. Bryant, 7 
 T. R. 25; Redman's Case, i Mod. 10; 
 Anon., Lofft, 151; Lewis Case, 2 Mod. 
 181; Scott V. Van Alstyne, 9 Johns. (N. 
 Y.) 216; Fowler w. Hunt, 10 Johns. (N. 
 Y.) 463. 
 
 This practice has not been generally 
 followed in this country, and has been 
 changed in England by statute I & 2 
 Vict. ch. no; Weeks on Attorneys, § 108. 
 It did not apply to arrest onr final process. 
 Week's on Attorneys, § 108. 
 
 2 Judges, like attorneys, were entitled 
 to be sued by bill in their own court, and 
 were not subject to mesne process of ar- 
 rest. In re William Livingston, 8 Johns. 
 
 (N. Y.)35i- 
 
 This rule was held not to apply to the 
 case of a judge of a federal court, that 
 being a court of limited jurisdiction. 
 Gratz V. Wilson, 6 N. J. L. 419. 
 
 Judges are exempted from arrest on 
 mesne or final process while in attend- 
 
 ance upon their public duties. Lyell v. 
 Goodwin, 4 McLean (U. S. C. Ct.), 29. 
 
 3. Jurors. — Jurors have the same ex- 
 emption from airest that witnesses have. 
 McNeil's Case, 3 Mass. 288; Brookers z/. 
 Chesley, 4 Harr. & M, (Md.) 295. 
 
 Sheriff. — The office of sheriff does not 
 protect the incumbent from civil arrest. 
 Day V. Brett, 6 Johns. (N. Y.) 22; Hill 
 V. Lott, 10 How. Pr. (N. Y.) 46. Un- 
 less while in necessary attendance in 
 court. Morgan v. Bower, I Dall. (U. 
 S.) 295. 
 
 Under a statute exempting sheriffs from 
 civil arrest, deputy sheriffs are not ex- 
 empted. George v. Fellows, 58 N. H. 
 494- 
 
 4. By civil arrest is meant arrest on 
 mesne or final process. A recommit- 
 ment of a debtor out upon a prison- 
 bounds bond is not breach of a party's 
 privilege to exemption from arrest. Ex 
 pajte Bill, 3 Cranch (U. S. C. Ct.), 117. 
 
 5. Attendance in Court. — Suitors. — A 
 suitor attending at the registrar's office 
 with his solicitor to settle the terms of' a 
 decree is entitled to exemption from ar- 
 rest. Newton v. Askew, 6 Ha. 319. 
 
 Or attending before a master under a 
 warrant to produce papers. Franklyn v. 
 Colqhoun, i Madd. 580. 
 
 Or to verify a charge. Brown v. Mc- 
 Dermott, 2 Ir. Eq. Rep. 438. 
 
 Or attending a reference. Vincent v. 
 Watson. I Rich. (S. Car.) L. 194. 
 
 Or attending in court to see if any- 
 thing is to be done in his case. Salhinger 
 V. Adier, 2 Robt. (N. Y.) 704. 
 
 Or attending from another State to 
 hear an argument in his own case in the 
 court of appeals. Pelt's Case, I Rich. 
 (S. Gar.) L. 197. 
 
 Or while attending in the very suit in 
 which the process of arrest is issued. 
 Atkinson v. Eraser, 5 Rich. (S. Car.) L. 
 
 ,519- 
 
 In Sidgier v. Birch, 9 Ves. 6g, it was 
 held that a suitor returning from an ap- 
 pointment with his solicitor for the pur- 
 pose of attending with him to inspect a 
 paper in his adversary's possession, in 
 preparation for an examination before a 
 master, is privileged. Lidgier v. Birch, 
 9 Ves. 69. 
 
 Witness. — A witness attending upon 
 arbitrators, under an arbitration by order 
 of the court, is privileged. Ex parte 
 Temple, 2 Ves. & B. 391, 395. 
 
 Attorneys. — The privilege of an attorney 
 covers attendance at a master's office 
 taxing costs. In re Hope, 9 Jur. 856. 
 
 735 
 
Privilege. 
 
 ARREST. 
 
 Attendanso upon Court. 
 
 spective capacities, ^and 
 court. ^ 
 
 while going to and returning from 
 
 Or at an arbitration. Webb v. Taylor, 
 I Dovvi. & L. 676. 
 
 Or on summons at a judge's chambers. 
 In re Jevvett, 10 Jur. N. S. 814. See 
 Cole V: M'Clellan, 4 Hill, (N. Y.) 59, 
 where it was held that an attorney at- 
 tending before a master, examiner, or 
 judge out of court was not privileged. 
 
 Or at an appeal before the House of 
 Lords. Attorney-General v. Skinners 
 Co., 8 Sim. 377. 
 
 1. Duration of Privilege. — ThS privilege 
 lasts only from the time the suitor, wit- 
 ness, attorney, etc., starts from home to 
 attend, until he returns thither. Childer- 
 ston V. Bafrett, 11 East. .^39; Gibbs v. 
 Phillipson, i Russ. & My. 19; Burke v. 
 Biggins, 2 Hogan (Irish), no; Ex parte 
 Hurst, 4 Ball. U. S.) 387. 
 
 A party, witness, etc., attending court 
 in a place remote from that where he re- 
 sides, IS privileged while going to the 
 place where the court is held, while de- 
 tained there by reason of his attendance 
 upon court, and while returning home. 
 Ex parte Hurst, i Wash. (U. S. C. Ct.) 
 186; Persse v. Persse, 5 H. of L. C. 
 671; Burke v. Higgins, 2 Hogan ("Ir.), 
 no; Gibbs v. Phillipson, i Russ. & My. 
 
 The person is privileged during the 
 entire time of his necessary sojourn in 
 the place where the court is held, and not 
 merely while going from and returning to 
 his lodgings. Burke v. Higgins, 2 Hogan 
 (Ir.), no ; Gibbs v. Phillipson, I Russ. 
 & My. 19; Burk v. Higgins, 2 Hog. no. 
 
 But one who comes to the city on pri- 
 vate business, and is there subpoenaed, 
 is only privileged while in court or while 
 going from or returning to his lodgings. 
 Burke v. Higgins, 2 Hogan, no. 
 
 A witness called from his place of resi- 
 dence to testify in another town, need 
 not return by the next train. His privi- 
 lege extends a reasonable time. Wilbur 
 V. Boyer, i W. N. C. (Pa.) 154. 
 
 Where the assizes were over Friday, a 
 witness going home in a coach Saturday 
 evening were held privileged. Hatch v. 
 Bllsset, 2 Stra. 986. 
 
 A suitor coming up to London long 
 before it was necessary to do so, in order 
 to attend the hearing of his cause, is 
 privileged after his cause is actually in 
 the paper, although he would not have 
 been privileged before. Persse v. Persse, 
 5 H. of L. C. 671. 
 
 The fact that a person has not money 
 enough to enable him to leave town after 
 the trial is over does not extend the 
 
 period of his privilege. Spencer v. New- 
 ton, 6 Ad. & E. 623. 
 
 A non-resident witness is privileged 
 during a short adjournment of the pro- 
 ceedings which he is attending. Spencer 
 V. Newton, 6 Ad. & El. 623 ; Rex v. 
 Piatt. 3 W. N. C. (Pa.) 187. But not 
 pending an adjournment for a long time. 
 Spencer v. Newton, 6 Ad. & El. 623. 
 
 A solicitor is privileged only while ac- 
 tually going towards or to the court. He 
 is not protected, while engaged on other 
 errands, by the fact that ultimately he in- 
 tends to attend court. Strong v. Dicken- 
 son, I M. & W. 488. 
 
 A party to an action, waiting in a tav- 
 ern near the court for his cause to be 
 reached,! is privileged. Childerston v. 
 Barrett, 11 East. 439. 
 
 A witness is privileged during an ad- 
 journment of the proceeding until a later 
 time on the same day. Ex parte'iexa^Xe, 
 2 Ves. & B. 391, 395. 
 
 A suitor is not privileged while await- 
 ing to hear the report of arbitrators, for 
 they may separate after the hearing and 
 not report for many days. Otherwise as 
 to a suitor awaiting a return of a verdict, 
 since the jury cannot separate until ver- 
 dict is returned. Clark v. Grant, 2 
 Wend. (N. Y.) 257. 
 
 Deviation. — The exemption eundo et 
 redeundo is only while the person is go- 
 ing from home to attend, or while re- 
 turning home after attendance. A devi- 
 ation destroys privilege. Heron i'. Stoke, 
 6 Ir. Eq. 125; Shults v. Andrews, 54 
 How. Pr. (N. Y.) 380; Selby v. Hills, S 
 Bing. 166; Pitt V. Coomes, 5 B. & Ad. 
 1078. 
 
 Thus, where a suitor goes from the 
 court to transact other business before 
 going home, he is not privileged. Heron 
 V. Stokes, 6 Ir. Eq. 125. 
 
 A witness who proceeds about his 
 business instead of returning home is not 
 privileged. Shults v. Andrews, 54 How. 
 Pr. (N. Y.) 380. 
 
 The privilege is not lost by reason of 
 a slight deviation to obtain refreshment 
 or speak to friends. Attorney-General 
 V. Skinners Co., 8 Sim. 377; Pitt v. 
 Coomes, 5 B. & Ad. 1078 ; Ex parte 
 Clark, 2 Dea. & Ch. gg. 
 
 Privilege is not lost by a deviation, if 
 the deviation was necessary for business 
 to be transacted in court, — as where a 
 suitor deviates to procure papers to use in 
 court. Ricketts v. Gurney, 7 Price, 6gg. 
 
 A slight deviation to attend, for a few 
 minutes, at an exhibition of paintings 
 36 
 
Married Women. 
 
 ARREST. 
 
 Foreign Ministers. 
 
 By the common parliamentary law, members of legislature are 
 exempt from civil arrest while attending a session of the legisla- 
 ture, and for a reasonable time before and after, to allow them to 
 come from and return to their homes. ^ 
 
 In most States voters are exempted from civil arrest, by consti- 
 tutional or statutory provision, while attending at the polls, and 
 in going and returning.''* 
 
 Soldiers and sailors, though in actual service, are not exempt 
 from civil arrest, unless by statute. ^ 
 
 8. Married Women. — At common law a married woman was 
 exempt from civil arrest if she had no separate estate.* 
 
 9. Foreign Ministers. — Ambassadors and representatives of 
 foreign powers are exempt from arrest.^ 
 
 does not destroy a suitor's privilege. 
 Mahon v. Mahon, 2 Ir. Eq. 440. 
 
 Wtiere the defendant was arrested 
 while in the direct line of road for re- 
 turning, the burden of proving a devia- 
 tion is on the other party. Selby v. 
 Hills, 8 Bing. i66. 
 
 But when arrested out of such direct 
 line he must disprove a deviation. Jones 
 V. Rose, II Jur. 379. 
 
 1. King V. Coit, 4 Day (Conn.), 127, 
 133; Gibbes v. Mitchell, 2 Bay (S. Car.), 
 406; Bolton Z-. Martin, i Dall. (U. S.) 
 296; Lewis V. Elmendorf, 2 Johns. Cas. 
 (N. Y.) 222; Hoppin v. Jenckes, 8 R. I. 
 453; =■ c., 5 Am. R. 597; Holiday I/. Pitt, 
 2 Str. 985. 
 
 The common-law exemption of legis- 
 lators is recognized and confirmed as to 
 members of Congress by the federal con- 
 stitution. Similar constitutional provi- 
 sions are included in most State consti- 
 tutions. 
 
 In Hoppin v. Jenckes, 8 R. I. 453; s. 
 c, 5 Am. R. 597, it was held that 
 whether the rule of English parliamentary 
 practice allowed a period of exemption 
 of at least forty days before or after a 
 session for going and returning or not, 
 no such period of, exemption could be 
 claimed under the provisions of the 
 federal constitution. 
 
 The privilege from arVest guaranteed 
 by the constitution to members of Con- 
 gress extends to delegates from the Terri- 
 tories, as well as to senators and represen- 
 tatives. Doty V. Strong, i Finn. (Wis.) 84. 
 
 The privilege of a legislator from 
 arrest is not personal, but is that of the 
 people'. Anderson v. Rountree, i Finn. 
 (Wis.) 115. 
 
 2. A voter waiting in a house near the 
 polls while the votes are being counted 
 is " attending on the business of the 
 election," and therefore exempt from 
 civil arrest under the constitution. Swift 
 V. Chamberlain, 3 Conn. 537. 
 
 The privilege does not extend to an 
 elector preparing to go to the polls, if 
 he has not already proceeded on his 
 way. Hobbs v. Getchell, 8 Me. 187. 
 
 3. White V. Lowther, 3 Ga. 397; Ex 
 parte McRpberts, 16 Iowa, 600; Moses v. 
 
 Mellett, 3 Strobh. (S. Car.) 210. 
 
 A lieutenant of a State company raised 
 under an act of Congress, is not exempt, 
 under the provisions of a statute apply- 
 ing to State militia. White v. Lowther, 
 3 Ga. 397. 
 
 A member of a State militia force which 
 has been mustered into the service of the 
 United States does not thereby lose the 
 privilege from civil arrest, given by stat- 
 ute to members of the State militia. Feo- 
 ple V. Campbell, 40 N. Y. (i Hand.) 133. 
 
 The act of Congress relative to the 
 arrest of soldiers does not apply to a 
 soldier at home on furlough. Ex parte 
 McRoberts, 16 Iowa, 600. Or to com- 
 missioned officers. Moses v. Mellett, 3 
 Strobh. (S. Car.) 210. 
 
 4. Sparks v. Bell, 8 B. & C. i; Anon, 
 ■8 How. Pr. (N. Y.) 134; Henry v. 
 
 Cornelius, i Cranch (U. S. C. Ct.), 374 
 O'Neil V. Hogan, 2 Cranch (U. S. C. Ct.), 
 524; Neville v. Neville, 22 How. Fr. (N. 
 Y.) 500. ' 
 
 In many States, the power to arrest 
 women on civil process is closely re- 
 stricted by statute. See Hatheway v. 
 Jones, 20 Ark. log, statute; Wheeler v. 
 Hartwell, 4 Bosw, (N. Y.) 684; Disprang 
 -u. Davis, 3 McCord (S. Car.), 16. 
 
 5. Holbrook v. Henderson, 4 Sandf. 
 (N. Y.) 619; Dupont V. Fichon, 4 Dall. 
 (U. S.) 321. 
 
 A foreign ambassador, accredited to 
 another foreign country, and travelling 
 through the country on his way thither, 
 is exempt from arrest. Holbrook v. 
 Henderson, 4 Sandf. (N. Y.) 6ig. 
 
 A charge d'affaires of a foreign govern- 
 ment who has been superseded by a 
 superior, but is delayed in this country 
 
 727 
 
"Waiver. 
 
 ARREST. 
 
 Discharge from Illegal Arrest, 
 
 10. Waiver. — Illegality of the arrest by reason of defects in the 
 process and service thereof,^ or by reason of privilege,'-* may be 
 waived. 3 
 
 11. Discharge from Illegal Arrest. — Where the' arrest is illegal, the 
 party arrested may obtain his release on motion in the court is- 
 suing process, or by writ of habeas corpus in any court having 
 jurisdiction to issue the writ.* 
 
 by circumstances beyond his control, is 
 exempted from arrest on civil- process. 
 Dupont V. Pichon, 4 Dall. (U. S.) 321. 
 
 A commander of a war vessel of a 
 foreign belligerent power is exempted 
 from civil arrest. United States v. Peters, 
 3 Dall. (U. S.) 121. 
 
 An ex-president of a foreign republic 
 is exempt trom arrest for injuries received 
 at his. hands while acting as president. 
 Hatch V. Baez, 7 Hun (N. Y.), 596. 
 
 Under the act of Congress of 1825, 
 imposing a fine upon any one obstructing 
 or hindering mail-carriers, a mail-carrier 
 is exempt from civil but not from crim- 
 inal arrest. Penny z*. Walker, 64 Me. 
 430; s. c, 18 Am. Rep. 269. 
 
 1. Howe Machine Co. v. Lincoln, 24 
 Kans. 123. 
 
 2. Stevenson v. Smith, 28 N. H. 12; 
 Green v. Bonaffon, 2 Miles (Pa.), 219; 
 Petrie v. Fitzgerald, i Daly (N. Y.), 401. 
 
 A member of the State legislature may 
 waive his privilege from arrest. Chase 
 V. Fish, 16 Me. 132. 
 
 The statutory privilege of a. person 
 entitled to vote at town meeting may be 
 waived. Wood v. Davis, 34 N. H. 328. 
 
 3. Privilege must be set up within a 
 reasonable time after arrest or it will be 
 waived. Green v. Bonaffon, 2 Miles 
 (Pa.), 219. 
 
 Giving prison -bounds bond waives 
 privilege. Tipton v. Harris, Peck. 
 ^Tenn.) 414. 
 
 A plea in bar waives privilege from 
 arrest. Randall w. Crandall, 6 Hill (N. 
 Y.), 342. 
 
 Giving bail bond waives defects in is- 
 suance of process for arrest. Saunders 
 V. GuUaher, 2 Humph. (Tenn.) 445. 
 Compare Baker Mfg. Co. v. Knotts,'30 
 Kan. 356 (statutory), and Washburn v. 
 Phelps, 24 Vt. 506. 
 
 Jurisdictional defects in an affidavit 
 for a capias are not waived by giving 
 special bail and pleading. Matter of 
 Stephenson, 32 Mich. 60. See Maxwell 
 ■B. Deens, 46 Mich. 35. 
 
 By the provision of the New York 
 code, a motion to vacate an order of ar- 
 rest must be made before judgihent. 
 Roberts v. Carter, 17 How. Pr. (N. Y.) 
 47g; Wicker v. Harmon, 21 How. Pr. 
 
 (N. Y.) 462; Throop's Code, 1885, § 567. 
 
 Or within twenty days after the entry 
 
 of the order. Pelo v. Clukey. 36 How. 
 
 Pr. (N. Y.) 179; Throop's Code, 1885, § 
 
 567. ■ 
 
 Formerly the motion must be made 
 before giving bail. McKenzie v. Hack- 
 staff, 2 E. D. Smith (N. Y.), 75; Crowell 
 V. Brown, 17 How. Pr. (N. Y.) 68. 
 
 As to whether one can waive a privi- 
 lege of exemption from arrest before he 
 knows of it. See Randall v. Crandall, 
 6 Hill (N. Y.), 342; Green v. Bonaffon, 2 
 Miles (Pa.), 219. 
 
 4 Armstrong v. Ayres, 19 Conn. 540. 
 
 Release can be o.btained by habeas cor- 
 pus only where the arrest was absolutely 
 void. Hurd Habeas Corpus, 333. 
 
 Pendency of an action (or the same 
 cause in a foreign jurisdiciion in which 
 an arrest could be had is no ground for 
 vacating an order for arrest. Arihurton 
 V. Dalley, 20 How. Pr. (N. Y.) 311. 
 
 A State court cannot release one im- 
 prisoned by a federal court for a cause 
 of action in which, by the State statute, 
 no arrest could be had. although by act 
 of Congress the federal courts are re- 
 quired to follow the local statutes in the 
 matter of arrests. The prisoner must 
 apply to the federal court. Duncan v. 
 Klinefelter, 5 Watts (Pa.), 141. 
 
 A district court will release a dis- 
 charged bankrupt from arrest on process 
 of a State court, if the debt was such that 
 a discharge in bankruptcy would release 
 him. In re L. Glaser, 2 Ben. (U. S. 
 C. Ct.) 180; In r^Borst, 2 N. B. R. 171; 
 State J/. Rollins, 13 Mo. 179; U. S. v. 
 Dobbins, i Pa. L. J. 5; Ex parte Mifflin, 
 I Pa. L. J. 29. 
 
 The proper method of procedure in 
 such a' case is by writ of habeas corpui 
 supd out of the federal court. In re 
 Williams, 11 N. B. R. 145; s. c, 7 C. L. 
 N. 49. 
 
 Application should be made to the 
 State court for release before taking pro- 
 ceedings in the federal court. In re 
 O'Mara, 4 Biss. (U. S. C. Ct.) 506. But 
 the decision of the State court is not 
 final, and in case it refuses to release 
 the bankrupt the question may be re- 
 opened on habeas corpus in the federal 
 
 728 
 
Discharge from Illegal Arrest. 
 
 ARREST. 
 
 Second Arrest. 
 
 Where the arrest was illegal because the defendant was privi- 
 leged at the time he may obtain his release on motion in the 
 court issuing process.''- 
 
 The officer arresting is not bound to take notice of the privilege 
 of the defendant,** and he is not a trespasser in making the ar- 
 rest. ^ And the fact that the defendant is at the time privileged 
 is no ground for abating the writ.* 
 
 12. Second Arrest. — Where a defend ant hasbeen arrested and dis- 
 
 court. In re Wiggers, 2 Biss. (U. S. C. 
 Ct.) 71. 
 
 1. Walker v. Webb, 3 Anstr. 941; Ly- 
 ell V. Goodwin, 4 McL. (U. S. C. Ct.) 29; 
 Selby V. Hills, 8 Bing. 166 ; Moore v. 
 Green, 73 N. Car. 394. Compare Plomer 
 V. McDonough, i De G, & Sm. 232. 
 
 Or in the case of suitors, witnesses, etc., 
 by motion in the court in which defend- 
 ant was suitor, witness, etc. Walker v. 
 Webb, 3 Anstr. 941; Kimpton v. London, 
 etc., R. Co., 9 Exch. 766; Commonwealth 
 V. Daniel, 4 Pa. L. J. R. 49; Kinsman 
 V. Reinex, 2 Miles (Pa.), 200; U. S. w. 
 Edme, 9 S. & R. (Pa.) 147, 149. 
 
 The application may be made to the 
 court in banc, although the witness ar- 
 rested was summoned in the court of nisi 
 frius. Kimpton v. London, etc., R. Co., 
 9 Exch. 766. 
 
 In Plomer v. McDonough, it was held • 
 that the application for release must be 
 to the court contemned by the arrest, not 
 to the court out of which process issued. 
 Plomer v. McDonough, i De G. & Sm. 
 232. 
 
 It seems that one arrested while privi- 
 leged may obtain his release by writ 
 of haheas corpus. Crocker v. Duncan, 6 
 Blackf. (Ind.) 278; Smith v Jones. 76 
 Me. 138; s. c, 49 Am. Rep. 598; Bell 
 V. State, 4 Gill (Md.), 301. 
 
 A house of legislature will order the 
 release of its members arrested in viola- 
 tion of its privilege. Cooley Const. Lims. 
 (4th ed.) p. 163. So the court from which 
 process issued, should on application 
 discharge the defendant. Cooley Const. 
 Lims. (4th ed.) p. 163. Any other court 
 may release him on writ of habeas corpus. 
 Cooley Const. Lims. (4th ed.) p. 163. 
 
 An application to relieve a suitor from 
 arrest on the ground of privilege is ad- 
 dressed to the discretion of the court, 
 and the court may grant it on such terms 
 as it shall deem proper, as that no action 
 for wrongful arrest shall be brought. 
 Taft V. Hoppin, Anth. (N. Y.) 255; Snell- 
 ing V. Watrous, 2 Paige (N. Y.), 314. 
 
 If the writ of arrest is absolutely void, 
 the judge cannot make its vacation con- 
 ditional upon defendant undertaking that 
 he will not bring an action on account 
 
 of the arrest. He Bradner, 87 N. Y. 
 171. 
 
 Where a court has decided that one of 
 its suitors was not privileged to exemp- 
 tion from arrest, the supreme court will 
 not reopen the question on writ of habeas 
 corpus. Commonwealth v. Humbright, 4 
 S. & R. (Pa.) 149. 
 
 2. Ray v. Hogeboom, 11 Johns. (N. 
 Y.) 433; Secor v. Bell, 18 Johns. (N. Y.) 
 ;2; Chase v. Fish, 16 Me. 132; Spcrry©. 
 Willard, i Wend. (N. Y.) 32; Cooley on 
 Torts, p. 192, and cases cited. 
 
 3. Chase v. Fish, 16 Me. 132; Sperry 
 V. Willard, i Wend. (N. Y.) 32. 
 
 But the privilege exonerates the officer 
 from failure to make the arrest, or for al- 
 lowing an escape. Ray v. Hogeboom, II 
 Johns. (N. Y ) 433; Secor v. Bell, 18 
 Johns. (N. Y.) 52, 
 
 4. Hart v. Kennedy. 15 Abb. Pr. (N. 
 Y.)290; Booraem v. Wheeler. 12 Vl. 311; 
 Hubbard v. Sanborn, 2 N. H. 468. 
 
 A previous arrest, illegal because the 
 defendant was at the time privileged, does 
 not invalidate a second arrest, made on 
 the same process, after the period of ex- 
 emption has expired. Petrie v. Fiizger- 
 ald, I Daly (N. Y.). 401; Van VVezel v. 
 Van Wezel, i Edw. Ch. (N. Y.) 113; 
 Humphrey v. Cumming. 5 Wend. (N. Y.) 
 90; Barrack v. Newton, i Q. B. 525; An- 
 drewes v. Walton, iMcN. & G. 380. 
 
 No action for wrongful or malicious 
 arrest lies against one causing the arrest, 
 on civil process, of one privileged from 
 arrest because going to court; Smith v. 
 Jones, 76 Me. 138; s. c, 49 Am. Rep. 
 598. 
 
 A party released from arrest upon stip- 
 ulating not to sue for false imprison- 
 ment is precluded from maintaining any 
 action upon the bond given by the plam- 
 tiff on obtaining the order for arrest. 
 Schuyler v. Englert, 62 How. Pr. (N. Y.) 
 
 479- 
 
 A direction to the officer to make the 
 arrest immediately does not mean to 
 make it while the defendant is temporar- 
 ily privileged. It must be understood 
 that the officer was not to make the ar- 
 rest until the defendant became subject 
 to arrest. Sewell v. Lane, i Ind. 293. 
 
 729 
 
Contempts. 
 
 ARREST. 
 
 What Constitutes, 
 
 charged because of a defect in the process, he may, in the discre- 
 tion of the court, be rearrested.^ 
 
 13. Contempts. — Attachments for contempt generally partake of 
 the nature of criminal rather than civil arrests.* 
 
 ARREST (Criminal- Cases). (See also Arrest (Civil Cases); 
 Bail; Escape; False Imprisonment; Homicide — Officers; 
 Warrant.) 
 
 1. What Constitutes. 
 
 2. Without Warrant. 
 
 3. Notice of Officer's Authority. 
 
 4. By Private Person. 
 
 5. Assisting ati Officer. 
 
 6. Authority cannot be Delegated. 
 
 7. Manner of making-Force. 
 
 8. Breaking Doors. 
 
 9. Hue and Cry. 
 
 10. Illegal. 
 
 11. Jurisdiction. 
 
 12. Resisting Arrest. 
 
 1. What Constitutes. — No manual touching the body or actual 
 force is necessary to constitute an arrest. It is siifificient if the 
 party be within the power of the officer,'and submits to the ar- 
 rest.^ 
 
 1. Butterworth v. White, 2 Miles (Pa.), 
 141; Schadie v. Chase, 16 How. Pr. (N. 
 Y.) 4r3; Meucci v. Raudnitz, 20 Hun (N. 
 Y.), 343 
 
 But a second process will not be granted 
 unless I he court is satisfied that a second 
 arrest will not be vexatious. McGivery 
 V. Morehead, 2 Cal. 607; State v. Brit- 
 tain, 3 Ired. (N. Car.) 17; U. S. v. Wat- 
 kins, 4 Cranch(U. S. C. Ct.) 271; Doane 
 V. Baker, 6 Allen (Mass ), 260. 
 
 Where a defendant has been held to 
 bail in a federal court, he cannot be ar- 
 rested in an action for the same cause in 
 a State court. Hernandez v. Carnobeli, 
 10 How. Pr. (N. Y.) 433. 
 
 One discharged from imprisonment (but 
 not from the debt) in another State may 
 be arrested. Joice z*. Scales, 18 Ga. 725. 
 
 A debtor arrested in another State and 
 discharged from imprisonment under the 
 insolvency laws of such Slate, is subject 
 to arrest. Hubbard v. Wentworth. 3 N. 
 H. 43; Woodbridge 'j. Wright, 3 Conn. 
 523; Peck-z/. Hozier, 14 Johns. (N. Y.) 
 346. 
 
 Where the plaintiff discovers that the 
 bail is insufficient he may discontinue and 
 arrest the defendant again in a. second ac- 
 tion for the s.ime cause, after first givtng 
 defendant notice of discontinuance. Jew- 
 ett V, Lock, 6 Gray (Mass.). 233. 
 
 2. An arrest for contempt made on Sun- 
 day is not contrary to-2g Car. 2, ch. 7, § 
 6, prohibiting arrest on Sunday, save for 
 treason, felony, or breach of the peace. 
 A contempt is in the nature of a breach 
 of the peace. Ex parte Whitchurch, i 
 Atk 55. 
 
 A statute prohibiting the arrest of wo- 
 men on any mesne process or process of 
 
 execution, does not apply to attachments 
 for cohtempt. Clark v. Grant, 38 N. J. 
 L. 257. 
 
 Contempts are of two kinds, civil and 
 criminal. A criminalcontempt is of the 
 nature of a breach of the peace, and hence 
 a member of Parliament is not privileged 
 from commitment for a criminal con- 
 tempt. Mr. LongWellesley'sCase,2Russ. 
 
 6 My. 667; Catmur v. Knatchbull, 7 T. 
 R. 448; Walker v. Lord Geo. Grovesnor, 
 
 7 T. R. 171. 
 
 A witness committed for contempt for 
 disorderly behavior in court, is privileged 
 while returning at the expiration 06 his 
 imprisonment. R. v. Wigley, 7 Car. & 
 P. 4. 
 
 3. Bissell V. Gold, i Wend. (N, Y.) 
 210; s. c, 19 Am. Dec. 480. See. gener- 
 ally, Whithead v. Keyes, 3 Allen (Mass.), 
 495; Mowry v. Chase, 100 Mass. 79; 
 Field V. Ireland, 21 Ala. 240; Floyd v. 
 Slate, 12 Ark. 43; s. c, 54 Am. Dec. 250; 
 Pike V. Hanson, 9 N. H. 491; Emery v. 
 Chesley, 18 N. H. 198; Strout v. Gooch, 
 
 8 Me. 126; Woodward v. Washburn, 3 
 Denio (N. Y.), 369; Searls v. Viets, 2 
 Thomp & C. (N. Y.) 224; McNeice v. 
 Weed. 50 Vt. 728; Lyon v. Rood, 12 Vt. 
 233; State V. Green, 66 Mo. 631; Brush- 
 aber -v. Stegemann, 22 Mich. 266; Her- 
 ring V. State, 3 Tex. App. io8; Hartw. 
 Flynn, 8 Dana (Ky.), 190; Courtoy v. 
 Dozier. 20 Ga. 369; Jones v. Jones, 13 
 Ired. L. (N. Car.) 448; Huntington v. 
 Schultz, Harp. (S. Car.) 452; Lawson 7/. 
 Buzines, 3 Harr. (Del ) 416; Murphy v. 
 Countiss. I Harr. (Del.) 143; Smith v. 
 Slate, 7 Humph. (Tenn.) 43; Bloomer v. 
 Stare, 3 Sneed (Tenn.V 66; U. S. v. Ben- 
 ner, I Baldw. (U. S.) 239. Compare Hunt- 
 
 730 
 
What Constitutes. 
 
 ARREST. 
 
 What Constitutes^ 
 
 ington V. Blaisdell, 2 N. H. 317; Genner 
 V. Sparks, i Salk. yg ; Berry v. Adamson, 
 6 B. & C. 528. 
 
 In Searls v. Viets, 2Thomp. & C. (N. 
 Y.) 224. Potter, J., said : " I have not 
 been able to find any real conflict be- 
 tween English and American authorities 
 as to what constitutes an arrest. By all 
 the authorities a person may or may not 
 be arrested without a manual or actual 
 touching by the officer. Each case must 
 depend upon its own peculiar circum- 
 stances. Bare words alone will not make 
 an arrest if the party resists the arrest. 
 
 "This was held in Genner v. Sparks, i 
 Salk. 79. Genner, a bailiff, had a war- 
 rant against Sparks, and went to him in 
 his yard and told him he had a warrant 
 for him. and said, ' I arrest you.' Sparks 
 had a fork in his hand, and kept the bailiff 
 from touching him. Neither the power 
 to arrest nor the words " I arrest you' 
 made an arrest; but the court said if the 
 bailiff had touched him, that had been an 
 arrest, and the bailiff might have pursued 
 him, broken open his house, or had an at- 
 tachment and rescous against him. See 
 also Russen v. Lucas, i C. & P. 153; 
 Chinn v. Morris, 2 C. & P. 360. 
 
 "In another case, however, in Homer 
 V. Battle, Bull. N. P. 62, it was held that 
 the words, 'You are my prisoner,' ' I have 
 a writ against you,' was a sufficient ar- 
 rest, where the prisoner submitted, turned 
 back, and went svith the officer, though 
 there was no touching; but it was also 
 said, if the defendant, instead of going 
 with the bailiff, had fled from him, the 
 words and the warrant would not have 
 made an arrest. To the same effect, see 
 also Pocock V. Moore, Ryan & Moody, 
 321. 
 
 " In the case of Arrowsmith z(. Mes- 
 surier. Sir James Mansfield. Ch. J., says, 
 ' I suppose an arrest can take place with- 
 out an actual touch;' and refers to the 
 case of Williams v. Jones, Cas. Temp.,"" 
 Hard. 2g8. where a bailiff comes into a 
 room and tells the defendant he ar- 
 rests him and locks the door; that is an 
 arrest without touching, for he is in the 
 custody of the officer. ' But,' the chief- 
 justice remarks. ' here the plaintiff went 
 voluntarily before the magistrate. The 
 warrant was made no other use of than 
 as a summons. The constable brought a 
 warrant, but did not arrest the plaintiff.' 
 
 " So the case of Berry v. Adamson, 5 
 Barn. & Cress, 528. 'A sheriff's officer, 
 to whom process was given, sent a mes- 
 sage to the defendant and asked him to fix 
 a time, and call and give bail; and he ac- 
 cordingly fixed a time, went, and gave 
 bail. Held, that this was not an arrest, 
 
 although the party suing out the writ had 
 no cause of action. And it was said 
 that an action for the arrest would not 
 lie.' Lord Ch. J. Tenterden held that 
 the plaintiff had been neither actually nor 
 constructively arrested. 
 
 "Of the American authorities, which are 
 claimed to be in conflict, is Gold v. Bissell, 
 I Wend. (N.Y.) 210. In this case the con- 
 stable took the warrant, went to Bissell, 
 and informed him what he had. BisselL 
 submitted without a manual touching, 
 went with the constable about half a mile;, 
 procured a person to become his bail next 
 day, and did appear and give bail. The 
 court, per Ch. J. Savage; say: 'We un- 
 derstand the law to be well settled, that 
 no manual touching of the body is neces- 
 sary to constitute an arrest and imprison- 
 ment. It is sufficient if the party be within- 
 the power of the officer and submits to- 
 the arrest.' I am unable to see any con- 
 flict between the English cases and this. 
 
 "So, too, in the case of Mowry w. 
 Chase, 100 Mass. 79. . . . The judger 
 changed that no actual force or manual 
 touching of the body was necessary to- 
 constitute an arrest; that if the officer had. 
 a precept which authorized an arrest, and 
 gave defendant to understand that he- 
 was arrested thereon, or under restraint^ 
 and if the defendant did so understand 
 and submitted to the custody and control 
 of the officer, and the defendant's move- 
 ments were directed by the officer, no 
 matter for how short a time, this was a. 
 legal arrest. On appeal the court held 
 this charge to be sound. The jury found, 
 an arrest. . . . 
 
 "We are referred to Pike v. Hanson,, 
 g N. H. 491. That was the case of an 
 officer, with a collector's warrant for the 
 payment of taxes, with power of arrest. 
 He called upon the plaintiff, after having 
 given her due notice; being in the room 
 with her, called upon her to pay her tax, 
 which she declined doing until arrested. 
 He then told her he arrested her. but did 
 not lay his hand upon her, and thereupon 
 she paid the tax. In an action for false- 
 imprisonment, the case being carried to 
 the court in banc, all the English author- 
 ities above cited, as well as the case of 
 Gold V. Bissell, i Wend., were reviewed, 
 and this was held to be a sufficient arrest- 
 to sustain an action. The judge ques- 
 tions but does not condemn Arrowsmith 
 V. Messurier. He distinguishes it from 
 the other cases by saying there was no 
 declaration of arrest by the officer, and 
 that the warrant was. in fact, only used 
 as a summons, and says, if it cannot be 
 sustained upon this distinction, it must 
 be regarded as of doubtful authority. The- 
 
 731 
 
What Constitutes. 
 
 ARREST. 
 
 How Made. 
 
 As soon as an arrest is effected the prisoner should be taken be- 
 fore a magistrate.* 
 2. How Made — Without a Warrant. — An officer may arrest, with- 
 
 case of Emery v. Chesley, i8 N. H. 202, 
 adopts the law as laid down in the pre- 
 ceding case. 
 
 " It is seen, upon a review of the pre- 
 ceding cases, though each differs from 
 the others, that but one rule can be laid 
 down as to what ' constitutes an arrest, 
 which, if unlawful, is sufficient to main- 
 tain an action for false imprisonment.' 
 I think by the modern practice, as drawn 
 from the cases, that an actual manual 
 touching of the body is not required, but 
 only whatever is equivalent, amounting 
 to a restraint of liberty of the person, as 
 when the officer or other person claims 
 the right to exercise the power of arrest, 
 is in possession of a preiept which au- 
 thorizes or directs an arrest, and gives 
 notice of the intention to execute it; or if 
 the officer goes for the purpose of exe- 
 cuting his process, and has the party in 
 his presence and power, if the party so 
 understands it, and in consequence there- 
 of submits and allows the officer to di- 
 rect his movements without resistance, 
 as by going before a magistrate by direc- 
 
 , tion of the officer: that amounts to an ar- 
 rest, though the officer did not touch his 
 body." 
 
 Arrest is constituted where there has 
 been submission to an authority over 
 one's person, asserted by virtue of a pre- 
 tended warrant. Haskins v. Young, 2 
 Dev. & B. L. (N. Car.) 527; ». y.., 31 Am. 
 Dec. 426. 
 
 In an action for false imprisonment, it 
 
 - appeared that R.. a constable, having a 
 warrant for plaintiff and his sons, issued 
 by a justice, met the plaintiff and one of 
 his sons in a wagon. R. said, " I have 
 a warrant for you and your two sons." 
 Plaintiff asked for what. R. replied, 
 " FoF stealing pumpkins." Plaintiff 
 started to get out of the wagon and R. 
 said, "You can go home and get your 
 horses put up, and fake your tea and come 
 down." Plaintiff went home, took his 
 tea, employed a lawyer, and with him and 
 his two sons went to R.'s, and calling out 
 R. said, " Here's your prisoners." R. 
 said. " You move on and I will overtake 
 you." They wenton, and R. overtook them 
 as they got to the house of the justice. 
 The matter was then, after discussion, 
 adjourned to another day, without bail, 
 and on the adjourned day the plaintiff ap- 
 peared, an examination was had, and the 
 justice discharged the case. Held, that 
 the evidence showed an arrest of the 
 
 plaintiff. Searls v. Viets, 2 Thomp. & C. 
 (N. Y.) 224. 
 
 Where a warrant is first obtained, the 
 person executing it will be protected, 
 whether the one arrested be proved guilty 
 or innocent; but if the statute alone is re- 
 lied upoi, the person making the arrest 
 can havv; protection only by establishing 
 that the person arrested was found vio- 
 lating the law. Davis v. Amer. Soc, etc., 
 75 N. Y. 362. 
 
 The person must be conscious that he 
 is arrested. Jones v. Jones, 13 Ired. L. 
 (N. Car.)448; Herrings. Boyle, I'Cromp. 
 M. & R. 377. • 
 
 There must be a restraint of the per- 
 son, a restriction of the right of locomo- 
 tion. Hart V. Flynn, 8 Dana (Ky.), 190; 
 French v. Bancroft, i Melc. (Mass.) 502. 
 Commanding a party to submit to ar- 
 rest constitutes an arrest. Com. v. Sher- 
 iff, I Grant's Cas. (Pa.) 187. 
 
 A deputy constable who holds an aip- 
 pointment in writing, and has been sworn, 
 may execute process though his appoint- 
 ment has not been filed in the office of 
 the clerk of the county court, as required 
 by statute. State v. Underwood, 75 Mo. 
 230. 
 
 What is Not — Where an officer reads 
 a warrant to a person and requests him 
 to appear before a magistrate, and leaves 
 him without taking him into custody, it 
 is not an arrest. Baldwin v. Murphy, 82 
 111. 485. 
 
 An officer having a warrant against A. 
 went to him in his yard, and being at 
 some distance, told him he had a warrant 
 and said he arrested him; A. having a 
 pitchfork in his hand kept off the officer, 
 and retreated into his house and shut the 
 door against the officer. Held, not an 
 arrest. Genner jy. Sparks, 6 Mod. 173. 
 
 Service of a writ of capias ad responden- 
 dum by a delivery of a copy thereof is 
 not an arrest. Huntington v. Shultz, 
 Harp. (S. Car.)452; s.c, 18 Am. Dec.660, 
 1. Green z'.Kennedy,46 Barb.(N.Y.)l6 
 If he delays an unreasonable time th« 
 arrest becomes illegal. Johnson v, 
 Americus, 46 Ga. 80; Flinn v. Graham, 
 3 Pittsb. (Pa.) 195. See Schneider v. 
 McLane, 4 Abb. App. Dec. (N. Y.) 154; 
 Phillips v. Fadden, 125 Mass. 198. 
 
 It is no defence to a charge for assault- 
 ing an officer while making an arrest that 
 he failed to take the prisoner before a 
 magistrate. Com. v. Tobin, 108 Mass. 
 426; s. c, II Am. Rep. 375. 
 
 738 
 
How Hade. 
 
 ARREST. 
 
 Without a Warrant. 
 
 out warrant, for felony committed in his view, and carry such 
 person before a magistrate ; he also has a right at common law to 
 arrest, without a warrant, any one he suspects to be guilty of felony, 
 whether he acts upon his own knowledge or upon facts communi- 
 cated by others.^ 
 
 1. State V. Underwood, 75 Mo. 231; 
 State V. Grant, 76 Mo. 236; Roberts v. 
 State, 14 Mo. 138; s. c, 55 Am. Dec. 97, 
 15 Mo. 28; State 7^ Crocker, i Houst. Cr. 
 Cas. (Del.) 434; State v. Oliver, 2 Houst. 
 (Del.) 585; Eanes v. State, 6 Humph. 
 (Tenn.) 53; s. c, 44 Am. Dec. 289; Al- 
 ford V. State, 8 Tex. App. 545; Tiner v. 
 State, 44 Tex. 128; Long v. State, 12 Ga. 
 293; Boyd V. State, 17 Ga. 194; Brock- 
 way V. Crawford, 3 Jones (N. Car.). 433; 
 s. c. 67 Am. Dec. 250; States'. Belk, 76 
 N. Car. 10; Neal v. Joyner. 89 N. Car. 
 287; State V. McNinch, 90 N. Car. 695; 
 Com. V. Carey, 12 Cush. (Mass.) 246; 
 Com. z/. MaLaughlin,i2 Cush. (Mass.)6i5; 
 Rohan v. Sawin, 5 Cush. (Mass.) 281; 
 Wrexford v. Smith, 2 Root (Conn.), 171; 
 HoUey v. Mix. 3 Wend. (N. Y.) 350; 
 s. c, 20 Am. Dec. 702; Phillip.s v. Trull, 
 II Johns. (N. Y.) 486; Burns v. Erben, 
 40 N. Y. 463; \Afakely v Hart. 6 Bin. 
 (Pa.) 316; Drennan v. People, 10 Mich. 
 169; Shanley v. Wells, 71 III. 78; Keenan 
 *. State, 8 Wis. 132; Samuel v. Payne, i 
 Doug. 358; Beckwith v. Philby. 6 Barn. 
 & C. 635; Davis V. Russell, 5 Bing. 354; 
 Samuel v. Payne, i Doug. 359; Ledwith 
 V. Catchpole, Caldecott's Cas. 291; 
 Cowles V. Dunbar. 2 C. & P. 565; Davis 
 V. Russell, 2 M. & P. 590; Lawrence v. 
 Hedger, 3 Taunt. 14; Beckwith z/. Philby, 
 6 B. & C. 35; Hobbs v. Brandscomb, 3 
 Camp. 420; R. w. Woolmer, i Moody C. 
 
 c. 334. 
 
 At common law the power of a peace 
 officer to apprehend and detain offenders 
 is much greater than that of private per- 
 sons; for they may exercise all the powers 
 of the latter, and their right to apprehend 
 persons indicted for felony is undoubted. 
 I East. P. C. 298. 300. 
 
 And they may, which private persons 
 cannot do. apprehend persons on a rea- 
 sonable suspicion of felony. Samuel v. 
 Payne, Dougl. 359; I East. P. C. 301; 2 
 Hale P. C. 83. 84. 89, 
 
 Although no felony has been commit- 
 ted. Beckwith v. Philby, 6 B. & C. 635. 
 
 What is a reasonable suspicion of felony 
 cannot, of course, be stated with pre- 
 cision. But it has always been con- 
 sidered that a charge of felony by a per- 
 son not manifestly unworthy of credit is 
 sufficient to justify the apprehension, i 
 E^st. P. C. 302. 
 
 The jury must judge of the reasonable- 
 
 ness of thegrounds upon which the officer 
 acted. State v. McNinch, 90 N. Car. 695; 
 Harris v. Atlanta, 62 Ga. ?gi; Cochran 
 V. Toher, 14 Minn. 385. 
 
 The peace officer should also make 
 such inquiries as his experience teaches 
 him are best suited to ascertain the na- 
 ture of the offence, and there are few that 
 are without special directions how to act 
 in such cases. Roscoe's Cr. Ev. (loth 
 Ed.) 264. 
 
 If the officer acts upon suspicion, the 
 crime supposed to have been committed 
 must amount in law to a technical felony. 
 R. V. Thompson, i Moody C. C. 80. 
 
 If the arrest is upon the charge or ac- 
 cusation of another, that charge or ac- 
 cusation must amount in fact to a charge 
 of felony. R. -u. Curvan, i Moody C. C. 
 132; Bowditch V. Balchin, 5 Exch. 37S. 
 
 But if an arrest be for a past act, 
 whether misdemeanor or felony, it can 
 be made without warrant only when the 
 officer has grounds of reasonable sus- 
 picion, such as would justify him at com- 
 mon law in arresting for a past felony. 
 State V. Grant, 76 Mo. 236. 
 
 An officer may arrest without war- 
 rant when he shows satisfactory reasons 
 for his belief of the fact and the guilt of 
 the suspected party and that delay in 
 procuring a warrant might enable to 
 escape. In such case proof of the 
 actual commission of the crime is not 
 necessarv. Neal &. Joyner, 89 N. Car. 
 287. 
 
 An ofiBcer is not bound to procure a 
 warrant before arresting a person whom 
 he has probable cause to believe guilty of 
 a felony, even though there may be no 
 reason to fear the escape of such person 
 in consequence of the delay in procuring 
 the warrant. Wade v. Chaffee, 8 R. I. 
 224; o. c, 5 Am. Rep. 572 
 
 An officer will be justified for an as- 
 sault upon one endeavoring to assist the 
 arrested person in escaping, without 
 showing that such person was guilty of 
 the offence charged. Doering v. State, 
 49 Ind. 56; s. c, 19 Am. Rep. 669. 
 
 The defendant T. created some dis- 
 turbance of a violent and disorderly char- 
 acter at G.'s store. G. sent for the police, 
 and very soon W.. S., and H. appeared; 
 by this time the disturbance had ceased, 
 though T. was still present and drunk. 
 G. pointed out T. to the peace oflScers as 
 
 733 
 
Sow Mad6. 
 
 ARREST. 
 
 Without a Warrant. 
 
 Officers who by virtue of their office are conservators of the 
 peace have at common law the right to arrest without warrant 
 ^11 persons who are guilty of a breach of the peace or other viola- 
 tion of the criminal laws in their presence. ^ The arrest must 
 
 the party who had created the disturb- 
 -ance, and ordered them to arrest him. 
 The officers attempted the arrest, but T. 
 resisted; a scuffle ensued, and a crowd 
 collected. T. was tjed, but finally escaped, 
 as it was alleged, by the assistance of the 
 <iefendants. The arrest was made by 
 W., S., and H., as policemen under the 
 •city authorities, and was made without a 
 ■warrant. Held, that the officers were 
 authorized to make the arrest without a 
 warrant. State v. Sims, i6 S. Car. 486. 
 
 Where a criminal offence has been 
 •committed, as shooting at a person, and 
 an officer is informed of that fact, so that 
 lie has reasonable grounds for believing 
 «he person to be arrested has committed 
 ■such offence, he is authorized to arrest 
 such person without a warrant. Cahill 
 -v. People, 106 111. 621. 
 
 Where on an indictment for wounding 
 ■with intent to prevent the lawful appre- 
 hension of the prisoner, the evidence was 
 that the prosecutor, a police constable, 
 went with a brother officer, both being in 
 plain clothes, and with two other police- 
 tnen in uniform, to a public-house, and 
 told the prisoner that he wanted him on 
 a charge of a highway robbery; he had 
 no warrant, but from information he had 
 received he thought it his duty to appre- 
 hend the prisoner. The prisoner asked 
 him for further information relative to 
 the charge, which he refused to give, and 
 the prisoner then told him that he would 
 not go to the station-house unless he was 
 told why or by what authority he was 
 apprehended, and he wounded the officer 
 on his proceeding to apprehend' him; it 
 "was objected that the prisoner must be 
 aware at the time that the apprehension 
 was lawful, and there was nothing here 
 to show that that was the fact. Talfourd, 
 J., held, that to support this charge it 
 was enough that the prisoner was law- 
 fully apprehended. If the apprehension 
 was in fact lawful, the question whether 
 or not the prisoner believed it to be law- 
 ful could not be permitted to be con- 
 sidered. The prisoner was not to erect 
 a tribunal in his mind to decide whether 
 he was legally accused or not. He was 
 taken into custody by an officer of the 
 law, and it was his duty to obey the law. 
 K. V. Bentley, 4 Cox C. C. 406. 
 
 Arrest upon Information. — If an officer 
 ■without a warrant arrests a person upon 
 eharge of felony which is made by a third 
 
 party, the officer will be justified; but the 
 person making the charge will be liable 
 for the arrest if no felony was committed 
 and if the charge is false. HoUey v. Mix, 
 3 Wend. (N. Y.) 350; s. c, 20 Am. Dec. 
 702,; Burns v. Erben, 40 N. Y. 463; Far- 
 nam v. Feeley, 56 N. Y. 451; Hawley v. 
 Butler, 54 Barb. (N. Y.) 490. 
 
 The mere fact that the information 
 given an officer upon which he arrests a 
 party turns out untrue does not make 
 the informer liable in trespass to the 
 party arrested. So where private persons 
 cause an arrest to be made without 
 process, they are liable in some form of 
 action, unless it appear that the crime has 
 been committed and that they Sad reason- 
 able cause to believe that the person ac- 
 tually arrested was the guilty person ; but 
 the law does not go so far as to require 
 them to show that he is guilty of the 
 charge. Benham v. Vernon, 3 Cent. 
 Repr. (D. C.) 276. 
 
 Fugitive from another State. — Art" officer 
 has no authority without a warrant to 
 arrest a fugitive from another State who 
 is charged with crime. State v. Shelton, 
 79 N. Car. 605. 
 
 A city marshal, under Missouri stat- 
 ute, has no authority to make arrests 
 for an offence not committed in his pres- 
 ence, without a warrant. State v. Under- 
 wood, 75 Mo. 230. 
 
 1. Whitez/. Kent, 11 Ohio St. 550; Wolf 
 V. State, ig Ohio St. 248; Thompson v. 
 State, 30 Ga. 430; City Council v. Payne, 
 
 2 N. & Mc. C. (N. Car.) 475; State v. 
 Belk, 76 N. Car. 10; Brooks v. Com- 
 monwealth, 61 Pa. St. 352; Com. V. Dea- 
 con, 8 Serg. & R. (Pa.) 47; State v. Rus- 
 sell, I Houst. Cr. Cas. (Del.) 122; State 
 V. Brown, 5 Harr. (Del.) 595; Vandeveer 
 V, Mattocks, 3 Ind. 479; Pow v. Beckner, 
 
 3 .Ind. 475; Burns v. Erben, 40 N. Y. 
 463; Boyleston v. Kerr, 2 Daly (N. Y.) 
 220; Phillips V. Trull, H John. (N. Y.) 
 486; Taylor v. Strong, 3 Wend. (N. Y.) 
 384; Meyer v. Clark, 41 N. Y. Super. Ct. 
 107; Wahl V. Walton, 30 Minn. 506; Com. 
 V. Hastings, 9 Mete. (Mass.) 259; State 
 V. Lafferty, 5 Harr. (Del.) 491; Main v. 
 McCarty, 15 111. 441; Shanley w. Wells, 
 71 111. 78; Bryan v. Bates, 15 111. 87; 
 Cahill V. People, 106 111. 621; People v. 
 Haley, 48 Mich. 495; Roberts v. State, 
 14 Mo. 138; s. c, 55 Am. Dec. 97; State 
 V. Bowen, 17 S. Car. 58; Cook'z/. Neth- 
 ercote, 6 C. & P. 741; Clifford v. Bran- 
 
 734 
 
How Made. 
 
 ARREST. 
 
 Without a Warrant. 
 
 be made at the time of the offence or immediately after its com- 
 mission. 
 
 don, 2 Camp. 358; Derecourt v. Corbish- 
 ley, 5 El. & Bl. 188. 
 
 An arrest for misdemeanor without a 
 warrant by one who does not see the 
 offence is illegal. Ross v. Leggett, 28 
 N. W. Repr. (Mich.) 695; Black v. State, 
 2.Md. 376; State v. Beekman, 27 N. J. 
 L. 124; s. c, 72 Am. Dec. 352; People 
 V. Smith, 5 Cow. (N. Y.) 258; Pow v. 
 Beckner, 3 Ind. 479; R. v. Thompson, i 
 R. & M. C. C. 80; R. V. Bright, 4 C. & P. 
 487; Cook V. Nethercote, 6 C. & P. 
 741. 
 
 The officer may arrest upon seeing 
 such acts as show a reasonable ground 
 of arrest. O'Connor v. Bucklin, 59 N. 
 H. 589. 
 
 There is no distinction as to the 
 power to apprehend between one kind of 
 misdemeanor and another, as between a 
 breach of the peace and fraud; but the 
 rule is general that in all cases of mis- 
 demeanor there is no power to appre- 
 hend after the misdemeanor has been 
 committed, i Russ. on Cr. (gth Am. Ed.) 
 808. 
 
 Mr. Roscoe says (Roscoe's Cr. Ev. loth 
 Ed. 264): " Whether a constable or other 
 peace oflBcer is warranted in arresting a 
 person after a breach of the peace has 
 been committed is a point which has oc- 
 casioned some doubt. There are, indeed, 
 some authorities to the effect that the of- 
 ficer may arrest the party on the charge 
 of another, though the affray is over, for 
 the purpose of bringing him before a jus- 
 tice to find security for his appearance. 
 2 Hale P. C. 90; Williams v. Dempsey, 
 I East P. C. 306, «. 
 
 But the better opinion was always 
 said to be the other way. i East P. C. 
 305; Hawk. b. 2, c. 12, s. 20; i Russ. on 
 Cri. (5th Ed.) 394, 724. See Timothy w. 
 Simpson, i C. M. & R. 757; R. v. Carey, 
 14 Cox C. C. 214." 
 
 An officer has no authority to arrest 
 without warrant a common prostitute 
 unless disorderly conduct is committed in 
 his presence. People v. Pratt, 22 Hun 
 (N. Y.), 300. 
 
 At common law officers are authorized 
 to arrest street-walkers. Miles v. Wes- 
 ton, 60 III. 361. 
 
 Also night-walkers or prowlers. Rob- 
 erts V. State, 14 Mo. 138; s. c, 55 Am. 
 Dec. 97; Brown v. State, 2 Lea (Tenn.), 
 158; Com. V. Sullivan, 5 Allen (Mass.), 
 511; Com. V. Carter, 108 Mass. 17; State 
 V. Maxcy, I McM. (S. Car.) 503. 
 
 By night-walkers is meant such per- 
 sons as are in the habit of being out at 
 
 night for some wicked purpose. Watson 
 V. Carr, i Lewin, 6. 
 
 A breach of the peace must have pro- 
 ceeded far enough to sustain proceedings 
 against the person, to authorize his ar- 
 rest without a warrant. Quinn v. Heisel, 
 40 Mich. 576. 
 
 A person shouting and making a noise 
 at night may be arrested without a war- 
 rant. State V. Russell, I Houst. Cr. Cas. 
 (Del.) 122. 
 
 Arrest on Sunday by railroad policeman 
 without warrant, who kept the prisoner 
 till Monday, when the necessary papers 
 were made, held legal. Corbett v. Sulli- 
 van, 54 Vt. 619. 
 
 A peace officer may arrest for a breach 
 of the peace committed against himself as 
 well as for those committed against oth- 
 ers. Davis V. Burgess, 54 Mich. 514. 
 
 A peace officer has the right to arrest 
 without warrant for a misdemeanor 
 where the arrest is ma.At flagrante delicto; 
 and he is possessed of the same powers 
 in making such arrest, and is authorized 
 to employ the same force, and to resort, 
 where necessary, to the same extreme 
 measures in overcoming resistance, as in 
 case of a felony. State v. McNally, 87 
 Mo. 644. 
 
 Concealed Weapons. — An vofficer of a 
 municipal corporation has authority 
 without warrant to arrest a person found 
 on the public street carrying concealed 
 weapons contrary to law, although he 
 had no previous knowledge of the fact, 
 if he acted bona fide upon such informa- 
 tion as induces an honest belief that the 
 person arrested is in the act of violating 
 the law. Ballard v. State, 43 Ohio St. 
 340. 
 
 Uunicipal Ordinances. — Power to a city 
 corporation to make ordinances for the 
 security or good order or government of 
 thejjlace, and to appoint or elect officers 
 to carry out ordinances, authorizes the 
 appointment of city, guards, or police of- 
 ficers, or peace officers, and such officers 
 may arrest without a warrant persons en- 
 gaged in breaches of the peace when 
 such a course is not repugnant to the 
 general law of the State. Com. v. Has- 
 tings, 9 Mete. (Mass.) 259; Bryan v. 
 Bates, 15 111. 87; State v. Lafferty, 5 
 Harr. (Del.) 491; White v. Kent, 11 Ohio 
 St, 550; Thompson v. State, 30 Ga. 430; 
 City Council v. Payne, 2 N. & McC. 
 (S. Car.) 475; State v. Bowen, 17 S. Car. 
 58. 
 
 Where an officer, under a city ordi- 
 nance, arrests without a warrant, it is in- 
 
 735 
 
How Made. 
 
 ARREST. 
 
 Without a Warrant. 
 
 Municipal Ordinances. — Contimied. 
 cumbent on him, when sued for trespass 
 therefor, to show by satisfactory evi- 
 dence that the offence was in fact com- 
 mitted in his presence. An offer to prove 
 that he had received information which 
 led him to make the arrest in good faith 
 is properly rejected. Shanlev v. Wells, 
 71 111. 78. 
 
 Where a person interferes with and re- 
 sists an officer while arresting another 
 person for the violation of a city ordi- 
 nance, the officer will not be liable for 
 arresting him without a warrant. Mont- 
 gomery V. Sutton, 25 N. W. Repr. (Iowa) 
 748. 
 
 So officers may be authorized by ordi- 
 nance to arrest without warrant for 
 breaches of the city ordinances com- 
 mitted in their presence. Main v. Mc- 
 Carty, 15 III. 441; Bryan v. Bates, 15 111. 
 87; State zi. Liifferty, 5 Harr. (Del.) 491; 
 Shanley v. Wells, 71 111. 78; Roberts v. 
 State, r4 Mo. 138; s. c, 55 Am. Dec. 97; 
 State V. Freeman, 86 N. Car. 683.' Com- 
 part State Tj. Beek, 67 N. Car. 10. 
 
 A vagrant may under municipal ordi- 
 nances be arrested without a warrant. 
 Roberts v. State, 14 Mo. 138; s. c, 55 
 Am. Dec. 97; Jones v. State, 14 Mo. 
 409. See Shanley v. Wells, 71 111. 78. 
 Compare Ke Way, 41 Mich. 299. 
 
 An officer is not justified in arresting a 
 vagrant without a warrant for a breach 
 of promise to leave the place. Roberts 
 V. State, 14 Mo. 138; s. c, 55 Am. Dec. 
 
 97- 
 
 A police officer may arrest without 
 warrant for violation of municipal ordi- 
 nances committed in his presence; but 
 the offender must be taken before the 
 mayor as soon as practicable, a warrant 
 obtained, and trial had. If the arrest be 
 made at a time and under such circum- 
 stances as that a, trial cannot be had 
 without delay, the officer may keep the 
 ofifeniler in custody — commit him to jail 
 or the "lock-np ;" but if the officer be 
 guiliy of a gross abuse of authority he 
 is liable to indictment. State v. Freeman, 
 86 N. Car. 683. 
 
 In determining the power of the mar- 
 shal of a municipal corporation to arrest 
 without warrant, a statuie one section 
 which makes it the duty of that officer to 
 arrest any person "in the act of com- 
 mitting any offence," etc. , and another 
 section "to arrest and detain any person 
 found violating anv law," etc., should be 
 construed together to determine the ex- 
 tent of such power. Under a proper 
 construction of these sections, a marshal 
 of a municipal corporation is authorized 
 without warrant to arrest a person found 
 
 on the public streets of the corporation 
 carrying concealed weapons contrary to 
 law, although he has no previous person' 
 al knowledge of the fact, if he acts bona 
 fide and upon such information as in- 
 duces an honest belief that the person 
 arrested is in the act of violating the law. 
 Ballard v. State, 43 Ohio St. 340. 
 
 Where the offender in question is open- 
 ly and notoriously engaged in^breaking 
 the law, as, for example, where he. is 
 maintaining a gambling-table in a public 
 place, it is sufficient for the officer to an- 
 nounce his official position and demand a 
 surrender. If this is refused, he may use 
 force to secure his prisoner. Where an 
 officer is empowered by law to arrest 
 without warrant, he is not in every case 
 bound before making the arrest to give 
 the party to be arrested clear and distinct, 
 notice of his purpose to mike the arrest, 
 and also of the fact that he is legally 
 qualified to make it. Shovlin v. Com- 
 monwealth, 106 Pa. St. 369. 
 
 Drunken Persons — A police officer ar- 
 resting a person without a warrant for 
 being intoxicated in a public street is not 
 liable criminally therefor if he acted in 
 good faith and had reasonable cause to 
 believe such person to be intoxicated, al- 
 though he was not in fact intoxicated. If 
 such officer is indicted for an assault, a 
 judgment of conviction of the arrested 
 person of the crime of drunkenness, ren- 
 dered by a police court on the day after 
 the arrest, is not conclusive evidence in 
 favor of the officer, at the trial of the in- 
 dictment, that such person was intoxicated 
 when arrested. Com. v. Cheney, 141 
 Mass. 102. 
 
 Where the statute makes it the imper- 
 ative duty of an officer to arrest for 
 drunkenness without a warrant, if he 
 finds an intoxicated person in a public 
 place, etc., held, that if he acted in good 
 faith upon reasonable and probable 
 cause of beliefj without rashness or neg- 
 ligence, he is not to be regarded as a 
 criminal because he is found to have been 
 mistaken. Com. v. Presby, 14 Gray 
 (Mass.). 103. 
 
 The defendant was indicted for an as- 
 sault on an officer while under arrest. He 
 had been arrested without a warrant for 
 drunkenness, and on trial was acquitted. 
 The point was made that being, acquitted 
 he could not be held for the assault, as 
 the officer, acting without a warrant, was 
 a trespasser. The court said: "The 
 mere fact that the defendanthad been ac- 
 quitted of the crime of drunkenness, which 
 is drunkenness by the voluntary use of in- 
 toxicating liquor, was not conclusive ev- 
 
 736 
 
How Hade. 
 
 ARREST. 
 
 Without a Warrant 
 
 idence that he was not drunk when ar- 
 rested, nor that the oflBcer was not in 
 the discharge of his duty when he made 
 the arrest." Cora, v, Coughlin, 123 Mass. 
 436. 
 
 Entering Houses. — An officer has a 
 right, by virtue of his office and without 
 warrant, to enter any house the door of 
 which is unfastened, in which there is a 
 noise amounting to a breach of the peace, 
 and to arrest any person disturbing the 
 peace there in his ^presence. Com. v. 
 Tobin, 108 Mass. 426; s. c, n Am. 
 Rsp. 375; Com. V. Hastings, 9 Mete. 
 (Mkss.) 259. 
 
 Cruelty to Animals. — Under the N. Y. 
 statute for prevention of cruelty to ani- 
 mals, its authorized officers have power 
 to arrest without warrant any offender 
 violating the statute. Davis v. Amer. 
 Soc, etc., 75 N. Y. 362. 
 
 The plaintiff, a pedler, went to the 
 house of Mr. B. and a small dog of Mr. 
 B.'s ran out at the plaintiff, who with a 
 slick gave the dpg a blow, which knocked 
 out one of its eyes. The plaintiff then 
 went away, and Mrs. B. immediately 
 sent a boy to fetch a constable; the boy 
 returned with the constable, and Mrs. B. 
 directed them to go after the plaintiff, 
 and apprehended him for the injury done 
 to the (Jog. They went in pursuit of the 
 plaintiff, and found him at a public-house 
 about a mile from Mr. B.'s, and the 
 constable apprehended him and took him 
 before a magistrate. Tindal, C. J. (in 
 summing up): The jury will have to con- 
 sider, first, whether the plaintiff had 
 committed a wilful injury to the dog; and 
 secondly, whether he was found commit- 
 ting that offence and immediately appre- 
 hended. " With respect to the second 
 question, the words of the 7 and 8 Geo. 
 IV. certainly differ materially from those 
 of I Geo. IV. c. 56, and were obviously 
 meant to restrict the powers given by 
 that act. The object of the legislature 
 seems to have been to allow the imme- 
 diate apprehension of a party taken in 
 the commission of a crime of this nature, 
 because otherwise such offences would 
 frequently be committed by persons pass- 
 ing through or having no fixed domicile 
 in the place, and they would therefore 
 entirely escape, if the party injured were 
 obligt-d to wait for the formalities of a 
 ch.irue before a magistrate, or a warrant. 
 Where ihe offender is fixed in the country, 
 so that he can be found and apprehended 
 at a subsequent time, there is no reason 
 why that apprehension should not be 
 after a regular proceeding; and the 
 statute therefore differs from the i Geo. 
 IV. c. 56, a:nd does not allow a stale ap- 
 I C. of L.— 48 
 
 prehension on an old charge, without a, 
 warrant. Still the words of the present 
 statute must not be taken so strictly as to 
 defeat its reasonable operation. Suppose 
 a party seen in the act of committing the 
 crime were to run away, and immediate 
 and fresh pursuit to be made, I think that 
 would be sufficient. So, in this case, the 
 party is actually seen in the commission 
 of the act complained of; as soon as- 
 possible an officer is sent for, and he is 
 taken as soon as possible. No greater 
 diligence could be required; and thar 
 being the case, I think it must be treated 
 as an 'immediate apprehension' for an 
 offence which the plaintiff, supposing 
 under the circumstances that it was an 
 offence at all, was 'found committing."' 
 Hanway v. Boultbee, 4 C. & P. 350 
 
 Interval of Time after Commission of 
 Offence. — The arrest may be made within 
 a reasonable time after the offence. 
 Taylor v. Strong, 3 Wend. (N. Y.) 384. 
 
 Five hours having intervened during 
 which the officer was not about anything 
 connected with the arrest, the authority 
 to arrest ceased. Wahl v. Walton. 30 
 Minn. 506. See Shanley v. Wells, 71 111, 
 78. 
 
 In R. V. Walker, i Dears. C. C. R. 358;. 
 23 L. J. M. C. 123. The prisoner had 
 assaulted a police constable, who went 
 away, and after two hours' time returned 
 and took him into custody; the court 
 held that this was an unlawful apprehen- 
 sion. Pollock, C. B., said, "The assault 
 for which the prisoner might have been 
 apprehended was committed some time 
 before, and there was no continued 
 pursuit. The interference of the officer, 
 therefore, was not for the ■ purpose of 
 preventing an affray, or of arresting a 
 person whom he had seen recently com- 
 mitting an assault. The apprehension 
 was so disconnected from the offence as 
 to render it unlawful." A police consta- 
 ble having been struck by the prisoner 
 went for assistance, and after an interval 
 of an hour returned with three other 
 constables, when he found the prisoner 
 at home and the door closed; and after 
 another interval the constables forced the 
 door open and endeavored to apprehend 
 the prisoner, who resisted and wounded 
 the prosecutor, but was at last appre- 
 hended. The court held, that as there 
 was no danger of any renewal of the 
 original disturbance, and as the facts of 
 the case did not constitute a fresh pur- 
 suit, the arrest was illegal. R. v. Mars- 
 den, D. R. I C. C. R. 131; 37 L- J-. M, 
 C. 80. 
 
 In R. ti. Light, Dears. & B. C. C, 332, 
 the defendant was convicted on an indict- 
 
 737 
 
How Hade. 
 
 ARREST. 
 
 Without a Warrant. 
 
 Or it may be made upon fresh pursuit, while the offender is 
 fleeing from the scene of the crime. ^ 
 
 ment charging him with assaulting a 
 constable in the execution of his duty. 
 It appeared that the constable, whilst 
 standing outside the defendant's house, 
 saw him take up a shovel, and hold it in 
 a threatening attitude over his wife's 
 head, and heard him at the same time 
 say, "If it was not for the policeman 
 outside, I would split your head open." 
 About twenty minutes after the defendant 
 left the house, saying that he would leave 
 his house altogether, and he was then 
 taken into custody by the policeman, who 
 had no warrant. It was on this appre- 
 hension that the assault took place, and 
 it was held that the policeman was justi- 
 fied under the circumstances in appre- 
 hending the defendant, and that the 
 conviction was right. The court, no 
 doubt, in this case, were strongly actuated 
 by the feeling that the policeman, as 
 always happens on such occasions, is 
 placed in a very difficult position. When 
 a man has recently committed an act of 
 violence, the court might very well be 
 extremely unwilling to say that in no 
 view could the peace officer reasonably 
 believe that he was about to commit 
 another similar act, and so be justified in 
 apprehending him. Much, in such a 
 case, ought to be presumed in favor of 
 an oflScer of justice, arid it is a point upon 
 which the opinion of the jury might be 
 very properly taken. See Baynes v. 
 Brewster, ii L. J.. M. C. 5, which is in 
 accordance with this view. 
 
 A. went to a house at night, demanding 
 to see the servant. He was told to de- 
 part, and would not. A constable was 
 sent for, and A. went from the house 10 
 the garden. When the constable arrived 
 A. said that if a light appeared at the 
 windows he would break them; upon 
 which the constable tookhiminto custody. 
 Held, that the constable was not justified 
 in so doing. R. v. Bright, 4 C. & P. 
 
 387- 
 
 Where in an action for assaulting the 
 plaintiff and giving him into custody, the 
 defendant justified having dotie so, and 
 his witnesses stated that the plaintiff, who 
 was the butler of the defendant, was 
 making a great noise in the defendant's 
 house, and had quarrelled with the coach- 
 man, and that when the defendant came 
 down-stairs the plaintiff was abusive to 
 him and violent in his manner, and mak- 
 ing a great noise, and laid hold of him, 
 and they struggled together; Lord 
 Campbell, C. J., directed the jury that if 
 
 a person came into a house, or was in it, 
 and made a noise and disturbed the peace 
 of the family, although no assault had 
 been committed, the master of the house 
 might turn him out or call a policeman to 
 do so; and if the plaintiff had assaulted 
 his master and misconducted himself in 
 the manner described by the defendant's 
 witnesses, the defendant would be justi- 
 fied in giving the plaintiff in charge to 
 the policeman, to be dealt with according 
 to law. Shaw v. Chairitie. 3 C. & K. 21. 
 
 Verbal Order of Magistrate. — An oflScer 
 is justified in making an arrest without a 
 warrant upon the verbal orders of a 
 magistrate. Farrist v. Leavitt, 52 N. H. 
 481. See Town of Odell v. Schroeder, 
 58 III. 353. Compare State v. James, 78 
 N. Car. 455. 
 
 The prosecutor having received a war- 
 rant whereby he was commanded " to 
 apprehend the prisoner and to bring him 
 before me to answer unto the said com- 
 plaint (assaulting W.) and to be further 
 dealt with according to law," went in 
 search of the prisoner, and brought him 
 before the magistrate who granted the 
 warrant and another magistrate; he was 
 ordered to find bail; he said he would 
 not; upon which he was ordered to be 
 committed; whilst the commitment was 
 making out he made his escape; the 
 prosecutor was ordered to go after hiiri; 
 there was no authority in writing; but in 
 consequence of the verbal directions of 
 the magistrates to the clerk, who was 
 making out the commitment, the latter 
 ordered the prosecutor to go after the 
 prisoner: the prosecutor accordingly did 
 so, and in attempting to apprehend the 
 prisoner was cut by him with a knife; it 
 was objected on the part of the prisoner 
 that the count was not proved, for that 
 the party having been taken before the 
 magistrate, the warrant was functus 
 officio; and the second taking was for 
 having made his escape from the office; 
 secondly, that the count was bad, as it 
 did not follow that the assaulting W. 
 was an offence for which the prisoner was 
 liable to be apprehended: but Gaselee, 
 J., thought the warrant continued in 
 force, and that the second objection was 
 upon the face of the record; and the jury 
 having found the prisoner guilty, upon a 
 case reserved, the conviction was held 
 good. R. V. Williams, R. & M. C. C. R. 
 387- 
 
 1. Hanway ii. Buultbee, 4 C. &P. 350; 
 People V. Pool, 27 Cal.)572: 
 
 738 
 
How Made. 
 
 ARREST. 
 
 Officer's Authority, 
 
 At common law, a person's insanity justifies his arrest, without 
 legal process, in a case of reasonable necessity. ^ 
 
 3. Notice of OflBlcer's Authority. — Some notice of the officer's au- 
 thority should be given. The notice may be either expressed or 
 implied.* 
 
 1. Keleher v. Putnam, 60 N. H. 30. 
 
 2. State V. Spaulding, 25 N. Western 
 Rep. (Minn.) 793; State v. Bryant, 65 N. 
 Car. 327; Brooks v.. Commonwealth, 6i 
 Pa. St. 352; Bellows v. Shannon, 2 Hill 
 (N. Y.), 86. 
 
 Notice of the officer's authority may be 
 implied from his uniform and insignia 
 of office. Yates v. People, 32 N. Y. 509. 
 See Com. v. Tobin, 108 Mass. 426. 
 
 No mrticular form of words is neces- 
 sary. It is enough that the officer and 
 his business be known. Where an offi- 
 cer used the words, '" You are my prison- 
 er," held, competent evidence of notifi- 
 cation by him of his business. State v. 
 Spaulding, 25 N. W. Repr. (Minn.) 793. 
 
 Every one is bound to know the char- 
 acter of an officer acting within his proper 
 jurisdiction. State v. Townsend, 5 Harr. 
 (Del.) 487.' 
 
 Y. was pursued by a shouting mob in 
 the night, threatening his life. In his 
 flight he was seized by an officer whom 
 he killed. Y. was indicted for murder 
 and convicted. On appeal the court 
 said, in granting a new trial, "In the 
 progress of the trial it soon became a, 
 material inquiry whether the prisoner 
 tfas aware of the character of the pur- 
 suer. There was no proof of actual 
 knowledge, and then occurred the in- 
 quiry whether the jury might not be 
 warranted to infer his knowledge from 
 attending circumstances. Hence the 
 proof of the officers's uniform and the 
 prisoner's defective vision, the street 
 lamp, and the vicinity thereto of the 
 prisoner at the time of the killing, all 
 these circumstances became of vital con- 
 sequence,; for if there was nothing from 
 which the prisoner's knowledge of the 
 official character of the deceased might 
 be inferred, the measure of the offence 
 charged would descend from murder in- 
 to one of the degrees of manslaughter. 
 And there was no evidence that he. de- 
 manded him to surrender, or that he 
 told him he arrested him. There was no 
 evidence that he personally knew the 
 officer." Yates w. People, 32 N. Y. 509. 
 
 An officer not in uniform told the 
 prisoners, "You are my prisoners; sur- 
 render;" at the same time he pointed a 
 gun at them. Hild, that these words 
 were sufficient notice of his character as 
 an officer. People v. Pool, 27 Cal. 572. 
 
 739 
 
 An officer is not bound to exhibit his 
 authority or process when he arrests a 
 defendant; a special deputy is. But if it 
 were his duty to exhibit it when de- 
 manded, his refusal would not constitute 
 him a trespasser, if he could show that 
 he had a regular legal process in his pos- 
 session which authorized the arrest. 
 Arnold v. Steeves, 10 Wend. (N. Y.) 
 514. See I Bish. Cr. Pro. § 648; State 
 w. Caldwell, 2 Tyler (Vt.). 214; State v. 
 Curtis, I Hayw. (N. Car.) 471; Bellows 
 V. Shannon, 2 Hill (N. Y.), 86; Com. v. 
 Field, 13 Mass. 322; Com. i/. Cooley, 6 
 Gray (Mass.), 356; State v. Townsend, 
 5 Harr. (Del.) 487; Johnson v. State, 30 
 Ga. 426. 
 
 As to special deputy. See State v. 
 Kirby, 2 Ired. L. (N. Car.) 201; Frost v. 
 Thomas, 24 Wend. (N. Y.)4i8. 
 
 Where a policeman found the prisoner 
 in a garden at night, stooping down close 
 to the ground, and the prisoner jumped 
 up and ran away, and the policeman ran 
 after him and caught him; and it ap- 
 peared that the prisoner was cutting or 
 plucking some picketees and carnations 
 in the garden, and the jury found that 
 the prisoner had wilfully and maliciously 
 plucked and cut flowers from plants or 
 roots in the garden with intent to steal 
 them, and that he was found by the po- 
 liceman committing that offence, but 
 that the policeman did not inform the 
 prisoner by word of mouth that he be- 
 longed to the police force; it was held, 
 on a case reserved, that the policeman 
 had authority to apprehend the prisoner. 
 R. V. Fraser, R. & M. C. C. R. 419. 
 
 Where the officer and the cause of ar- 
 rest are known to the offender, an offi- 
 cer need not inform him of the cause of 
 the arrest. Wolf w. State, 19 Ohio St. 
 248. See People v. Pool, 27 Cal. 572. 
 
 Reading the warrant is notice of the 
 officer's authority. State v. Green, 66 
 Mo. 631. 
 
 An officer is not required to part with 
 the possession of his warrant. I East. 
 P. C. 319. 
 
 If he allows a prisoner to take it into 
 his hand to read it, and he refuses to re- 
 turn it, the officer may use necessary 
 force to repossess it. R. v. Milton, 
 Moody & M. 107. 
 
 Where a party is apprehended in the 
 commission of an offence^ or upon fresh 
 
Showing Warrant. 
 
 ARREST. 
 
 By Private Person. 
 
 3. Showing Warrant. — Where the officer is a known public offi- 
 cer he is not bound to show his warrant before malting the arrest, 
 even if demanded.^ 
 
 4. By Private Person. — A private person may arrest without a 
 warrant if he sees a felony committed, or to prevent one. If a pri- 
 vate person makes an arrest upon suspicion of felony he is justi- 
 
 pursuit afterward, notice is not neces- 
 sary, because he must know the reason 
 why he is apprehended. R. v. Howarth, 
 I Moody, 207; R. V. Hunt, i Moody. 93; 
 People V. VVolven, 7 N. Y. Legal Obser. 
 89. See Roberts v. State, 14 Mo. 138; 
 s. c. , i;; Am.~ Der. 97; Slate v. Belk, 
 76 N. Car. 10; CahiU v. People, 106 111. 
 6zi; Com. v~ Tiibin. 108 Mass. 426; s. 
 c, II Am. Rep. 375; R. v. Woolmer, g 
 Moody. 334; I Hale P. C. 470; Gordon's 
 Case, I East. 315. 
 
 1. Arnold v. Steeves, 10 Wend. (N. Y.) 
 514; Slate V. Caldwell. 2 Tyler (Vt.), 214; 
 State V. Spauldrns, 25 N. West'n Repr. 
 (Minn.) 793; State v. Curds, I Hayw. 
 (N. Car.) 471. See Williams v. Stale. 44 
 Ala. 41; Jamison v. Gaernett, 10 Bush 
 (Ky.). 221; Com. v. McLaughlin, i2Cush. 
 ,'MasR.)6i5; Com i/. CouKhlin, IZ3 Mass. 
 436; State V, Green, 66 Mo 631; State v. 
 Wetherell, 5 Harr.,(Del.) 487. 
 
 " The accused is required to submit to 
 the arrest, to yield himself immediately 
 and peaceably into the custody of the 
 officer, who can have no opportunity, 
 until he has brought his prisoner into 
 safe custody, to make him acquainted 
 with the cause of his arrest, and the na- 
 ture, substance, and contents of the war- 
 rant under which it is made. These are 
 obviously successive steps. They cannot 
 all occur at the same instant of time. 
 The explanation must follow the arrest; 
 and the exhibition and perusal of the 
 warrant must come after the authority of 
 the officer has been acknowledged, and 
 his power over his prisoner has been ac- 
 quiesced in " Com. v. Cooley. 6 Gray 
 (Mass.), 350. See State v. Townsend, 
 5 Harr (Del* 487; Kernan v. Siate, 11 
 Ind. 471; Drennan v. People, 10 Mich. 
 169; State z/. Freeman. 8 Iowa, 428; s. c. , 
 74 Am. Dec. 317; Plasters v. State, I 
 Tex App. 673; Arnold v. Steeves, 10 
 Wend. (N. Y.) 514; State v. Garrett, i 
 Winst. (N. Car.) 144. 
 
 A special deputy or a private person to 
 whom a warrant is addressed is bound 
 to show his warrant, or the arrest is 
 illegal. Frost v. Thomas, 24 Wend. 
 (N. Y.)4i8; Arnold v. Steeves, 10 Wend. 
 (N. Y.) 515; State v. Kirby, 2 Ired. 
 (N. Car.) 201; State w. Curtis, I Hayw. 
 (N Car.) 47t; Com. v. Field, 13 Mass. 
 321; Burton v. Wilkinson, 18 Vt. 186; 
 s. c, 46 Am. Dec. 145. 
 
 A warrant had been issued addressed 
 to all the peace officers of Devon for ar- 
 rest of C. for trespassing in pursuit of 
 conies. Held, that C. was justified in re- 
 sisting an officer who attempted to arrest 
 him without having the warrant in his 
 possession. Codd v. Cabe, L. R. i Exch. 
 352. 
 
 In order to justify an arrest, even by 
 an officer, under a warrant, for a misde- 
 meanor, it is necessary that he should 
 have the warrant vviih him at the time. 
 R. V. Chapman, 12 Cox C. C. 4. 
 
 A warrant was issued by a justice of a 
 county, directed to the constable of the 
 township, and generally to all her maj- 
 esty's officers of the peace in and for the 
 county, commanding them, or some of 
 them, forthwith to apprehend G. and con- 
 vey him before two justices to ans,wer for 
 not obeying a bastardy order for payment 
 of money. The warrant was delivered to 
 the superintendent of police, and had sub- 
 sequently been in the possession of D., 
 one of the police constables. Afterwards 
 D. & S , police constables, while on duty 
 in uniform, arrested G. under the war- 
 rant, but they had it not in their posses- 
 sion at the time of the arrest, it being at. 
 the station-house. G. was rescued by 
 several persons, who assaulted the con- 
 stables, whereupon informations for the 
 rescue and assault were laid against the 
 parties by the constables, and at the hear- 
 ing before justices the complaint as to^ 
 rescue was withdrawn, and that for the 
 assault proceeded with, and the parties 
 were convicted. Held, that the convic- 
 tion was bad, as the arrest by the 
 constables was illegal, they not having 
 the warrant in their possession at the 
 time. Galliard v. Laxton, 9 Cox C. C. 
 127. 
 
 A man was summoned to answer an 
 information charging him with trespass 
 in pursuit of conies; as he did not appear 
 in obedience to the summons, a warrant 
 was issued for his apprehension. A po- 
 lice officer to whom the warrant was 
 directed, but not having it in his posses- 
 sion, attempted to arrest the man, who 
 thereupon committed an assault upon 
 him. Held, that he could not be con- 
 victed upon an information charging him 
 with assaulting the police officer in the 
 execution of his duty. Codd v. Cabe, I 
 L. R. Exch. Div. 352. 
 
 740 
 
By Frivato Person. 
 
 ARREST. 
 
 By Private Person, 
 
 fied if a felony was in fact committed, and there was reasonable 
 ground to suspect the person arrested. But if no felony was com- 
 mitted by any one, then such arrest is illegal. * 
 
 1. Holley V. Mix, 3 Wend. (N. Y.) 350; 
 s. c, 20 Am. Dec. 702; Phillips v. Trull, 
 14 Johns. (N. Y.) 486; Burns v. Erben, 
 
 1 N. Y. 463; Reuck v. McGregor, 32 
 No. J. L. 70; Wrexford v. Smith, 2 Root 
 (Conn.), 171; State v. Holmes, 48 N. H. 
 377; Wakely v. Hart, 6 Binn. (Pa.) 316; 
 Brockway v. Crawford, 3 Jones (N. Car.), 
 433; s. c, 67 Am. Dec. 250; Neal v. Joy- 
 ner, 8g N. Car. 287; Eanes u. State, 6 
 Humph. (Tenn.) 53; s. c, 44 Am. Dec. 
 289; Long V. State, 12 Ga. 293; Rohan v. 
 Sawin, 5 Cush. (Mass.) 281; Doughty v. 
 State, 33 Tex. i; Drennan v. People, 10 
 Mich. i6g; Dodds v. Board, 43 III. 95; 
 Kindred v. Stitt, 51 111. 401; Keenan v. 
 State, 8 Wis. 132; Wasson v. Canfield, 
 b Blackf. (Ind.)406; Simmerman v. State, 
 16 Neb. 615; s. c, 4 Am. Cr. R. gi; 
 
 ■ Brooks V. Commonwealth, 61 Pa. St. 352; 
 Neal V. Joyner, 89 N. Car. 287; State v. 
 Bryant, 65 N. Car. 327; Adams v. Moore, 
 
 2 Selw. N. P. gio; Allen v. Wright, 8 C. 
 & P. 522. Compare Ashley v. Dundas, 5 
 Up. Can. Q. B. 754; McKenzie v, Gib- 
 son, 8 Up. Can. Q. B. 100. 
 
 There must be in fact a felony com- 
 mitted by some person; for were there 
 no felony there can be no ground of sus- 
 picion. The party that arrests (if a pri- 
 vate person) must suspect the person ar- 
 rested to be the felon. He must have 
 reasonable cause for such suspicion, and 
 these must be alleged and proved. 2 
 Hale's P. C. 78. 
 
 "And even when there is only proba- 
 ble cause of suspicion, a private person 
 may without warrant, at his peril, make 
 an arrest. I say at his peril, for nothing 
 short of proving the felony will justify 
 the arrest."— Tilghman, C. J. Wakely 
 ■V. Hart, 6 Binn. (Pa.) 316. See Com. v. 
 Deacon, 8 Serg.& R. (Pa.) 49; Findlayj;. 
 Pruilt, 9 Port. (Ala.) 295; Johnson v. 
 Tompkins, i Baldw. (U. S ) 578. 
 
 Mere suspicion will not justify the ar- 
 rest. Findlay v. Pruitt, 9 Port. (Ala.) 
 195. See Hall v. Suydam, 5 Barb. 
 <N. Y.) 84; Winebiddle v. Pofterfield, 9 
 Barb. (Pa.) 137; Hall v. Hawkins, 5 
 Humph. (Tenn.) 357; Wilmarth v. Mount- 
 ford, 4 Wash. (C. C.) 82; Wills v. Noyes, 
 12 Pick. (Mass.) 324. 
 
 Reasonable ground for suspecting that 
 the person arrested had committed the 
 felony may be shown in mitigation of 
 damages. Phillips v. Trull, 11 Johns. 
 (N. Y.) 486; Wrexford v. Smith, 2 Root 
 (Conn.), 171; Wasson f. Canfield, 6 Blackf. 
 
 (Ind.) 406; Rogers v. Wilson, Minor 
 (Ala.), 407; s. c.„ 12 Am. Dec. 61; Eanes 
 V. State, 6 Humph. (Tenn.) 53; s. c.,44 
 Am. Dec. 289; Drennan v. People, 10 
 Mich. i6g. 
 
 A personal resemblance will not jus- 
 tify the arrest. Sugg v. Pool, 2 S. & P. 
 (Ala.) 196. 
 
 At common law all private persons 
 are justified, without a warrant, in appre- 
 hending and detaining until they can be 
 carried before a magistrate all persons 
 found committing or attempting to com- 
 mit a felony. R. v. Hunt, i Moo. C. C. 93. 
 
 In cases of suspicion of felony, and in 
 cases of offences less than felony, a pri- 
 vate person has at common law no right 
 to apprehend offenders. Post. 318. 
 
 The principle of the common law in 
 reference to arrests is thus stated by 
 Lord Tenterden is Beckwith v. Philby, 
 6 B. &C. 635: 
 
 "There is this distinction between a 
 private individual and a constable: in or- 
 der to justify the former in causing the 
 imprisonment of a person, he must not 
 only make out a reasonable ground of 
 suspicion, but he must prove that an 
 actual felony has been committed. 
 Whereas, a constable having reasonable 
 ground to suspect that a felony has been 
 committed is authorized to detain the 
 party suspected until an inquiry shall be 
 made by the proper authorities." And 
 to this effect are the authorities in the 
 absence of controlling legislation. See 
 Allen V. Wright, 8 Car. & P. 522; Rohan 
 V. Sawin, 5 Cush. (Mass.) 281; Burns v. 
 Erben, 40 N. Y. 463; Neal v. Joyner, 8g 
 N. Car. 287; Brockway v. Crawford, 3 
 Jones (N. Car.), 433; s. c, 67 Am. Dec. 
 250; Cooley on Torts, 175. Compare 
 Reuck V. McGregor, 32 N. J. L. 70. 
 
 Whether or not a private person may 
 arrest a person who stands indicted for 
 felony does not appear to be well settled. 
 Lord Hale inclines to the opinion that 
 the protection does not extend to a pri- 
 vate person in such case, because a per- 
 son innocent may be indicted, and be- 
 cause there is another way of bringing 
 him to answer, viz., process at capias to 
 the sheriff, who is a known responsible 
 officer. 2 Hale P. C. 84. 
 
 The reasoning of Mr. East, however, 
 is rather in favor of the protection. It 
 may be urged, he observes, that if the 
 fact of the indictment found against the 
 party be known to those who endeavor 
 
 741 
 
By Private Person. 
 
 ARREST. 
 
 By Private Person. 
 
 to arrest him, in order to bring him to 
 justice, it cannot be truly said that they 
 act upon their own private suspicion or 
 authority, and therefore they ought to 
 have equal protection with the ordinary 
 ministers of the law. At any rate, it is a 
 good cause of arrest by private persons 
 ' if it may be made without the death of 
 the felon. Dalton, c. 170, s. 5. 
 
 And if the fact of the prisoner's guilt 
 be necessary for their complete justifica- 
 tion, the bill of indictment found by the 
 grand jury would (he conceives) for that 
 purpose be prima-facie evidence of the 
 fact till the contrary should be proved. 
 I East P. C. 300. 
 
 Where a breach of the peace is actually 
 being committed any private person may 
 interfere to prevent it, even though no 
 felony be committed or attempted, after 
 proper warning, and calling upon the 
 parties to desist. Fost. 272, 311.. 
 
 And as they may take all necessary 
 measures to end the breach and to pre- 
 vent its recurrence, they may apprehend 
 and detain any persons taking part in 
 the disturbance. Whether or no, when 
 all danger of any further breach is over, 
 no felony having been committed, they 
 are bound to set at liberty the persons in 
 their custody, or whether they may take 
 them before a magistrate, or give them 
 into the custody of a peace officer, does 
 not appear to have been discussed. 
 
 It is said by Hawkins that at common 
 law every private person may arrest any 
 suspicious niglit-walker, and detain him 
 till he give a good account of himself. 
 'Hawk, P. C. b. 2, c. 13, s. 6. 
 
 But this would be an authority even 
 more general than that of peace officers, 
 and the passage is not law. See i Russ. 
 on Crim. (5tl) Ed.) 726. 
 
 It was held in the same case that a per- 
 son, who was not a regularly-appointed 
 game-keeper, but who was employed as 
 a watcher to watch for poachers, had au- 
 thority to apprehend poachers, and that it 
 was not necessary that he should have 
 any written authority. R. v. Price, 7 C. 
 & P. 178. 
 
 If a person who has been arrested for 
 felony escapes, any one may arrest him 
 without a warrant. Com. v. Sheriff, i 
 Grant (Pa.), 187; Dow's Case, 18 Pa. St. 
 37; Statis V. Holmes, 48 N. H. 377. 
 
 When the arrest is made under the be- 
 lief that the party arrested is guilty of a 
 felony, when in fact he is only guilty of 
 a misdemeanor, the party arresting will 
 be justified. Smith v. Donelly, 66 111. 
 464. 
 
 Where H., being called up in the night 
 by one of his servants, found that his 
 
 stable had been attempted, and the door 
 cut in such a manner that the bolt was 
 exposed, andfound the prisoner and an- 
 other person concealed in the yard; and 
 a steel instrument was also found, by 
 which the door of the stable appeared to 
 have been cut, and some house-breaking 
 instruments were also found near the spot 
 where the prisoner and his companion 
 were concealed, and under these circum- 
 stances they had been apprehended and 
 detained by H. and his servant, and dur- 
 ing such detention, and in the course of 
 the same night, the prisoner had cut H.'s 
 servant with a knife, a point was made 
 that such cutting was not within the 43 
 Geo. III., c. 58, on the ground that the 
 prisoner was not lawfully in custody, 
 there being no warrant, and an attempt 
 to commit a felony being only a misde- 
 meanor. But the judges held that the 
 prisoner being detected in the night at- 
 tempting to commit a felony, might be 
 lawfully detained without a warrant, until 
 he could be carried before a magistrate, 
 R. V. Hunt, R. & M. C. C. 93. 
 
 Where an arrest is made by a citizen 
 for an offence committed in his presence, 
 he must, to justify himself, show that 
 without unnecessary delay he took the 
 prisoner before a magistrate, or delivered 
 him to a peace officer. Judson v. Rear- 
 don, 16 Minn. 431. 
 
 In an action for damages for an unlaw- 
 ful arrest, proof that the defendant did 
 not act from malice towards the arrested 
 party is no defence. Neal v. Jovner, 89 
 N. Car. 287. 
 
 Upon an indictment for maliciously 
 wounding, it appeared that near midnight 
 two men were seen near a board-house 
 belonging to O.; on two persons going 
 up to the board-house, they heard a noise 
 there, and they found the door of the 
 board-house half open, and saw the pris- 
 oner inside the board house, and heard a 
 noise among the boards, and the prisoner 
 said " Bring the board;" the two persons 
 then went to O.'s house to call him up; 
 one of them then went to the bottom of 
 the road, which was about one hundred 
 yards from the board-house, and in a 
 quarter of an hour O. came up with a 
 carving-knife in his hand, and having 
 also got another person to assist him, 
 they went to the board-house, the door 
 of which was then closed; the hasp was 
 over the staple, and the padlock was in 
 the staple, but not locked; nobody was in 
 the board-house; they went in, and O. 
 found two planks removed from the place, 
 where he had seen them four days before, 
 to another part of the board-house, 
 nearer the door; they then went on from 
 
 742 
 
By Private Person. 
 
 ARREST. 
 
 By Private Person. 
 
 A private person may arrest a person 
 criminal offence.^ 
 
 he sees committing any 
 
 the board-house, and after searching in 
 several places, found the prisoner in the 
 garden of another person, crouched down 
 under a tree, and with a drawn sword in 
 his hand; the prisoner was asked twice 
 what he did there; he made no answer, 
 and then he started off; one of the wit- 
 nesses ran and caught hold of him, but 
 the prisoner compelled him to leave hold 
 of him ; the prisoner fell over something, 
 and then the other witnesses came up; the 
 prisoner struck O. on the side with his 
 sword, but did not cut him; then the 
 prisoner again attempted to get away, 
 but was prevented by some paling; the 
 prisoner then turned round and struck O. 
 with his sword,. cut through O.'s hat into 
 his head, and produced a slight wound on 
 his head; up to that time O. had not 
 struck the prisoner any blow; the jury 
 negatived the felony in removing the 
 .boards from one part of the board-house 
 to another; and it was objected that the 
 prosecutor had no right to apprehend 
 either at common law or under the Vag- 
 rant Act, 5 Geo. IV., c. 83, o. 6; for at com- 
 mon law the power to arrest for offences 
 inferior to felony was confined to the time 
 of committing the offence, and it was the 
 same under the Vagrant Act; that the 
 prisoner was not found by the prosecutor 
 committing the offence, but, on the con- 
 trary, had ceased from the attempt and 
 abandoned the intention, which dis- 
 tinguished this case from Rex v. Hunt, 
 R. & M. C. C. R. 93; but the judges, on 
 a case reserved, held that he might law- 
 fully be apprehended, for, as he was seen 
 in the board-house, and was taken on 
 fresh pursuit before he had left the neigh- 
 borhood, it was the same as if he had 
 been taken in the outhouse, or in running 
 away from it. R. v. Howarth, R. & M. 
 C. C. R. 207. 
 
 Crimes not Felony at Common Law. — 
 A private person is not by common law 
 justified in arresting a party upon sus- 
 picion for a crime that is not felony by 
 the common law. Of such crimes are 
 adiiltcry, perjury, assault with intent to 
 kill, mavhem, involuntary manslaughter 
 by negligence, piracy, obstructing- an 
 ofBcer in the performance of his duty. 
 See State v. Cooper, 16 Vt. 551; State v. 
 Noyes, 25 Vt. 415; Com. v. Newell, 7 
 Mass. 245; Com, v. Gable, 7 S. & R. (Pa.) 
 423; Anderson v. Commonwealth, 5 
 Rand. (Va.) 627; s. u.. 16 Am. Dec. 776; 
 State V. Boyden, 13 Ired, (N, Car,) 505; 
 State V. Brunson, 2 Bailey (S. Car,), 149; 
 Anonymous R. M, Charl. (Ga.) 228; 
 
 Adams v. Barrett, 5 Ga. 404; Shields iJ. 
 Yonge, 15 Ga. 349; s. c, 60 Am. Dec. 
 698; Mauro v. Almeida, 10 Wheat. (U. S.) 
 495; R. V. Morphes, i Salk. 85; Bowditch 
 V. Balchln, 5 Exch. 378. 
 
 1. Taylor v. Strong, 3 Wend. (N. Y,) 
 384; People V. Adler, 3 Park, Cr, (N,Y.) 
 249; Phillips V. Trull, II Johns. (N. Y.) 
 486; Knot V. Gay, i Root (Conn.) 66; 
 Mayo V. Wilson, i N. H. 53; Re Powers, 
 25 Vt. 261; Vanderveer v. Mattocks, 3 
 Ind. 479; State v. Bryant, 65 N. Car. 
 327; City Council v. Payne, 2 N. & McCl 
 (S. Car.) 475; People v. Pool, 27 Cal. 
 572. See Ryan u. Donnelly, 71 111. 100, 
 
 Where the owner of a horse and car- 
 riage left the horse tied to a post, and 
 the same is taken away without lawful 
 authority by boys, though without intent 
 to steal, a private citizen is justified in 
 arresting them. Smith v. Donnelly, 66 
 111. 464. 
 
 Upon an indictment for wounding it 
 appeared that the prisoner had asked 
 leave to take a basket of ashes from the 
 prosecutor's ashpit, which he was per- 
 mitted to do. As he was carrying away 
 the ashes the prosfecutor's apprentice saw 
 the spout of a new tea-kettle, which had 
 stood on a shelf near the ashpit, among 
 the ashes, and having given the alarm, 
 the prosecutor seized the prisoner to de- 
 tain him while a constable was sent for; 
 the prisoner resisted, and in the struggle 
 both fell, and the prisoner cut the prose- 
 cutor with a knife; a rattle of copper had 
 been heard while the prisoner was at the 
 ashpit; it was objected that the prosecu- 
 tor had no right to detain the prisoner, 
 Alderson, B, : "That will depend on 
 whether the jury are satisfied that the 
 prisoner had in fact stolen the tea-kettle. 
 If he had stolen the tea-kettle, the prose- 
 cutor had a right to detain him, and this 
 wounding will be felony," R, v. Price, 
 8 C. & P. 282. 
 
 The plaintiflf went into the defendant's 
 shop, and offered to purchase an article 
 at a price marked on a ticket; the plain- 
 tiff disputed with the shopman about the 
 price, and was desired to leave the shop, 
 which he refused to do, and declared 
 he would strike any man who laid 
 hands on him; a shopman then struck 
 him on the face; the plaintiff returned the 
 blow, and a contest commenced, the 
 noise of which brought down the defend- 
 ant from the room above; when he came 
 down the plaintiff was scuffling with the 
 shopman ; the defendant sent for a police- 
 man, and on his arrival the plaintiff was 
 
 743 
 
^siBting an Officer, 
 
 ARREST. Authority cannot be Delegated. 
 
 5. Assisting an Officer. — A private person must assist an officer in 
 making an arrest when called upon ;* but a person thus aiding 
 an officer is bound to know whether he is authorized to make 
 the arrest. If the officer is a trespasser, any one assisting him is 
 also a trespasser.* If a private person refuses to assist an officer 
 when he is called upon, such refusal will subject him to indict- 
 ment.^ 
 
 6. Authority cannot be Delegated. —An officer cannot delegate his 
 authority to a private person.* 
 
 requested by the defendant to go from 
 the shop quietly, but he refused; he was 
 standing still in the, shop, insisting on 
 his right to remain there, and a mob 
 gathering round the door, when the de- 
 fendant gave him in charge to the police- 
 man, who took him to the police-station. 
 It was held that the defendant had a 
 right, the danger continuing, to deliver 
 the plaintiff into the hands of the police- 
 man, and that the circumstance that the 
 plaintiff was not guilty of the first illegal 
 violence made no difference; for at the 
 time the defendant interfered he was ig- 
 norant of that fact: he saw the plaintiff 
 and others in a mutual contest, and that 
 mutual contest the law gave him power 
 to terminate, for the sake of securing the 
 peace of his house and neighborhood, 
 and the persons of all those concerned, 
 from violence. Timothy v. Simpson, i 
 C. M. & R. 757. 
 
 And it seems to be clear, that if either 
 party be dangerously wounded in such an 
 affray, and a stander by, endeavoring to 
 arrest the other, be not able to take him 
 without hurting or even wounding him, 
 yet he is in no way liable to be punished, 
 inasmuch as he is bound, under pain of 
 fine and imprisonment, to arrest such an 
 offender, and either detain him till it ap- 
 pear whether the party will live or die, 
 or carry him before a justice of peace, i 
 Hawjc. P. C. c, 63 § 12; 3 Inst. 158. 
 
 Deserters. — An officer of the army may 
 lawfully arrest a deserter and hold him 
 for trial by court-martial without a war 
 rant, and proof that the person making 
 the arrest was de facto such an officer 
 was sufficient. It was not even suggested 
 that the arrest could be supported with- 
 out any evidence of his military author- 
 ity. Hutchings v. Van Bokkellen, 34 
 Me. 126. 
 
 In Trask v. Payne, 43 Barb. (N, Y.) 
 569, it was decided that a civil officer or 
 private citizen could not lawfully arrest a 
 deserter without express order or war- 
 rant. See Kurtz v. Moffitt, 115 U. S. 
 
 487- 
 
 1. McMahanz/. Green, 34 Vt. 69; Cole- 
 
 man V. State, 63 Ala. 93 ; Coyles v. Hur- 
 tin, 10 Johns. (N. Y.) 85; Comfort v. 
 Commonwealth, 5 Whart. (Pa.) 437; State 
 V. Shaw, 3 Ired. (N. Car) 20; State v. 
 Hailey, 2 Strobh. (S. Car.) 73; State v. 
 Deniston, 6 Blackf. (Ind.) 277; Mitchell 
 V. Slate, 12 Ark. 50; ». c, 54 Am. Dec. 
 
 253- 
 
 Where a sheriff, having a warrant to 
 apprehend several persons who had. riot- 
 ously assembled together and committed 
 an assault, etc., came to the house where 
 they were assembled, and being resisted' 
 and unable to make the arrest command- 
 ed- A. and others to guard the house in 
 which the persons were assembled and 
 prevent their escape while he went to the 
 next town, about four miles distant, to 
 get a sufficient force to enable him to ex- 
 ecute the warrant, it was held that A. and 
 the others were bound to aid and assist 
 the sheriff on his order or summons in 
 preserving the peace or apprehending 
 the offenders, and that the sheriff was to 
 be deemed constructively present so as 
 to justify A. and others to arrest the of- 
 fenders during his temporary absence for 
 the purpose of getting further assistance, 
 of which fact the jury were to decide, and 
 that if A. and others, so ordered by the 
 sheriff to assist him during his temporary 
 absence for such purpose should permit 
 or assist the- offenders to escape, they 
 would be liable to punishment. Coyles 
 V. Hurtin, 10 Johns. (N. Y.) 85. See 
 State V. Deniston, 6 Blackf. (Ind.) 277; 
 Comfort V. Commonwealth, 5 Whart. 
 (Pa.) 437. 
 
 Persons assisting an officer, although 
 the officer may not be acting in good 
 faith, or illegally, are justified. Forristw. 
 Leavitt, 52 N. H.481; McMahan ?/. Green, 
 34 Vt. 6g; Reed v. Rice, 2 J. J. Marsh." 
 (Ky.)44; s. c, 19 Am. Dec. 122. 
 
 2. Dietrichs v. Schaw, 43 Ind. 175; 
 Mitchell V. State, 12 Ark. 50; s. c, 54 
 Am. Dec. 253. 
 
 3. I Bish. Cr. Law, § 469. 
 
 4. A constable having a warrant to ap- 
 prehend A., gave it to his son, who, in at- 
 tempting to arres tA.,was stabbed by him 
 
 ■44 
 
Sanner of Making. 
 
 ARREST. 
 
 "Six^i, 
 
 7. Manner of Making — Force. — An officer may use such force, but 
 no more, as is necessary to effect the arrest.^ 
 
 An officer or citizen may kill a felon if necessary to secure him 
 or to prevent his escape, or he may take the criminal's life if his 
 own is threatened and in danger while making the arrest. An 
 officer may kill a person he endeavors to arrest for misdemeanor if 
 their resistance to arrest renders it absolutely necessary.* 
 
 with a knife whicii A. happened to have 
 in his hand at the time, the constable 
 then being in sight, but a quarter of a 
 mile off. Held, that his arrest was il- 
 legal, and that, if death had ensued, this 
 would have been manslaughter only, un- 
 less it was shown that A. had prepared 
 the knife beforehand to resist the illegal 
 violence. R. v. Patience, 7 C. & P. 795. 
 1. Beaverts v. State, 4 Tex. App. 175; 
 Skidmore v. State, 43 Tex. 93; Giroux v. 
 State, 40 Tex. 97; Shooling v. Common- 
 wealth, 106 Pa. St. 369; State v. Mahon. 
 
 3 Harr. (Del.) 568; Wright v. Keith, 24 
 Me. 158; Murdock v. Ripley, 35 Me. 472; 
 Rhodes v. King, 52 Ala. 272; Golden v. 
 State, I S. Car. 292; State v. McNally, 87 
 Mo. 644. 
 
 The burden of proving excessive force 
 is on the party arrested. Henry v. Low- 
 ell, 16 Barb. (N. Y.) 268. See Wright 
 V. Keilh, 24 Me 158. Compare Loring 
 V. Aborn, 4 Cush. (Mass.) 608; Kreger 
 V. Osborn, 7 Blackf. (Ind.) 74. 
 
 The amount of force and the employ- 
 ment of the usual means in making the 
 arrest and detention, when within the 
 compass of the means ordinarily resorted 
 to for securing one found committing a 
 criminal act, must be left to the discre- 
 tion and judgment of the officer, when, 
 actuated by no ill-will or malevolent im- 
 pulse, he is engaged in discharging a 
 public and official duty. State i'. McNinch, 
 go N. Car. 695. 
 
 Gaston, J., commenting on an in- 
 struction which directed the jury to de- 
 termine " whether a rrian of ordinary 
 prudence would not have deemed it nec- 
 essary and' proper to secure the prisoner 
 by tying him," for doing which the ac- 
 cused constable then on trial had been 
 indicted for an abuse of authority, said: 
 "The act of tying is therefore within the 
 limits of the officer's authority, and of the 
 propriety and necessity of adopting this 
 mode of securing the prisoner; the officer 
 is the judge, and the jury cannot super- 
 vise the correctness of his judgment. 
 State v. Stalcup, 2 Ired. (N. Car.) 50. 
 
 If he uses more force than is necessary 
 he is guilty of assault and battery. Golden 
 V. State, I S. Car. 292; Beaverts &. State, 
 
 4 Tex. App. 175. 
 
 He must not strike the prisoner, except 
 in necessary self-defence. Skidmore w. 
 State, 43 Tex. 93; Kreger z/. Osborn, 7 
 Blackf. (Ind.) 74. 
 
 An officer whose life nor person were 
 endangered killed a prisoner from a de- 
 sire to prevent his escape. Held, murder 
 in second degree. Caldwell v. State, 41 
 Tex. 87. 
 
 An officer was conducting a prisoner 
 to the calaboose, when the latter stopped, 
 refused to go farther, and tried to get 
 atvay, whereupon the officer struck him 
 over the head with his pistol. There 
 was no evidence that the prisoner was 
 assaulting the officer, and it was proved 
 that aid was wiihin call, but not sought 
 by the officer. Held, that the officer was 
 guilty of aggravated assault. Skidmore 
 V. State, 2 Tex. App. 20. See R. v. Ha- 
 gan, 8 C. & P. 167. 
 
 One of the marshals of the city of Lon- 
 don, whose duty it was, on the day of a 
 public meeting at Guildhall, to see that a 
 passage was kept for the transit to their 
 carriages of the members of the corpora- 
 tion and others, directed a person in the 
 front of a crowd at the entrance to stand 
 back, and, on being told by him that he 
 could not for those behind him, struck 
 him immediately on the face, saying that 
 he would make him. Held,' that in so 
 doing the marshal exceeded his authority, 
 and that he should have confined himself 
 to the use of pressure, and should have 
 waited a short time to afford an oppor- 
 tunity for removing the party in a more 
 peaceable way. Imeson v. Cope, 5 C. & 
 P. 193. 
 
 2. 2 Bishop's Cr. L. § 647 et seq. ; i East 
 P. C. 298; I Hawk. P. C. g II. p. 81; I 
 Russell on Cr.(gthAm. Ed.) 857; Fost.271, 
 321. See U. S. V. Rice, i Hugh (C. C), 
 560; U. S. I'. Jailer, 2Abb.(U S.)265; Carr 
 V. State, 43 Ark. 99; Morton v. Bradley, 
 30. Ala. 683; Williams v. State. 44 Ala. 
 41; Clements v. State, 50 Ala. 117; 
 State V. Rutherford, i Hawks. (N. Car.) 
 456; s. c, 9 Am. Dec. 658; State z/. Roane, 
 2 Dev. L. (N. Car.) 58; State v. Garrett, 
 Winst (N. Car.) 144; State v. Anderson, 
 I Hill (S. Car.), 327; State v. Mahon, % 
 Harr. (Del.) 568; Wolf v. State, 18 Ohio 
 St. 248; Duperrier v. Dantrive, 12 La. 
 
 745 
 
Force. 
 
 ARREST. 
 
 Breaking Doois. 
 
 8. Breaking Doors. — Force may be used to effect an entrance to 
 a house in order to effect an arrest, but in every case in which 
 
 Ann. 664; Mesmer v. Commonwealth, 26 
 Gratt. (Va.) 976; Conraddy v. People, 5 
 Park. Cr. (N. Y.) 234; Brooks v. Cotn- 
 monweaUh, 6r Pa. St. 352; Pond v. 
 People, 8 Mich. 150; State v. Green, 66 
 Mo. 631; R. V. Dadson, 2 Den. C. C. 42. 
 
 If an officer, in making an arrest for a 
 misdemeanor, is resisted, he may apply 
 force to accomplish the arrest, and if it 
 become necessary to kill the offender to 
 save his own life or person from great 
 bodily harm, he may do so. State v. 
 McNally, 87 Mo. 644. 
 
 Where a felony has been committed, or 
 a dangerous wound given, and the party 
 flies from justice, he may be killed in the 
 pursuit, if he cannot otherwise be over- 
 taken. And the same rule holds if a 
 felon, after arrest, break away as he is 
 carrying to jail, and his pursuers cannot 
 retake without kijling hlin. But if he may 
 be taken in any case without such sever- 
 ity it is at least manslaughter in him 
 who kills him; and the jury ought to in- 
 quire whether it were done of necessity 
 or not. I East P. C. c. 5, § 67, p. 298. 
 In making arrests in cases of misde- 
 meanor and breach of the peace (with the 
 exception, however, of some cases of 
 flagrant misdemeanors) it is not lawful to 
 kill the party accused if he fly from the 
 arrest, though he cannot otherwise be 
 overtaken, and though there be a warrant 
 to apprehend hitti, and generally speak- 
 ing it will be murder; but under circum- 
 stances it may amount only to man- 
 slaughter, if it appear that death was not 
 intended. Fost. 271; i East P. C. c. 5, 
 § 70, p. 302. 
 
 An excise officer, being in the execu- 
 tion of his office, had seized, with the as- 
 sistance of another person, two smug- 
 glers in the act of landing whiskey from 
 the Scottisli shore, contrary to law; the 
 deceased had surrendered himself quietly 
 into the hands of the prisoner, but shortly 
 afterwards, when the officer was off his 
 guard, he assaulted him violently iwith an 
 ash stick, which cut his head severely in 
 several places, and he lost much blood, 
 and was greatly weakened in the struggle 
 which succeeded; the officer, fearing the 
 deceased woiild overpower him, and hav- 
 ing no other means of defending himself, 
 discharged a pistol at the deceased's legs, 
 in the hopes of deterring him, from any 
 further attack, but the discharge did not 
 take effect, and the deceased prepared to 
 make another assault; that, seeing this, 
 the prisoner warned him to keep off, tell- 
 ing him he must shoot him if he did not; 
 
 but the deceased disregarded the warn- 
 ing, and rushed towards him to make a 
 fresh attack; that he thereupon fired a 
 second pistol, and killed him. Holroyc), 
 J., told the jury, "an officer must not 
 kill for an .escape, where the party is in 
 custody for a misdemeanor; but if the 
 prisoner had reasonable ground for be- 
 lieving himself to be in peril of his own 
 life, or of bodily harm, and no other 
 weapon was at hand to make use of, orif 
 he was rendered incapable of making use 
 of such weapon by the previous violence 
 that he had received, then he was justified. 
 If an affray arises, and blows are re- 
 ceived, and weapons used in heat, and 
 death ensues, although the party may 
 have been at the commencement in the 
 prosecution of something unlawful, still 
 it would be manslaughter in the killer. 
 In this case it is admitted that the custody 
 was lawful. The question is, whether, 
 under all circumstances, the deceased be- 
 ing in the prosecution of an illegal act, 
 and having made the first assault, the 
 prisoner had such reasonable occasion to 
 resort to a deadly weapon to defend him- 
 self as any reasonable man might fairly 
 and naturally be expected to resort to. 
 Foster's Case, i Lewin, 187. 
 
 An attempt to escape will not justify 
 killing. Reneau v. State, 2 Lea (Tenn.), 
 721; s. c, 31 Am. Rep. 626; 2 Bish. Cr. 
 L. §§ 648, 649; I Wharton Cr. L. §§404, 
 406. 
 
 O. committed an assault and battery, 
 but not in the presence of C, a police 
 officer. C. arrested O. without a war- 
 rant, and while taking him to the station- 
 house O. escaped, C. pursued, and O. 
 being likely to escape, C. shot him, from 
 the effects of which he died. C. was in- 
 dicted for murder, and convicted of man- 
 slaughter in the fourth degree. Upon 
 appeal the court said : " "The prisoner, 
 although an officer, was acting without a 
 warrant. No warrant had been issued by 
 or to any one against the deceased. Nor 
 had he committed any ofJence in the view 
 or presence of the officer. Under such 
 circumstances, to justify taking life, even 
 if the jury were satisfied of the necessity 
 of the homicide to prevent an escape, it 
 must be shown that a felony had actually 
 been committed. The distinction is 
 marked between cases of misdemeanor 
 and of felony. It is only in the latter 
 that a homicide is justifiable by any per- 
 son acting without a warrant, even when 
 it is the only means to prevent an escape • 
 of the criminal. When no warrant ' is 
 
 746 
 
Force. 
 
 ARREST. 
 
 Breaking DoorB. 
 
 doors may be broken open in order to make an arrest there must 
 be a previous notification of tiie business, and a demand to. enter 
 on the one hand and a refusal on the other before the parties pro- 
 ceed to that extremity. 1 
 
 out for the offender even, an officer can- 
 not take his life to prevent his escape 
 upon his own belief of the commission of 
 a felony, however reasonable a ground 
 he may have for such belief. If he act 
 without a warrant he must be prepared 
 to show the fact of the felony in order to 
 justify taking the life of a person whom 
 he is endeavoring to arrest or to secure." 
 Conroddy v. People, 5 Park. Cr. (N. Y.) 
 
 235-- 
 
 An officer is not justified in shooting a 
 criminal, who is endeavoring to escape, 
 when the attempt to arrest is illegal. 
 Lacy v. State, 7 Tex. App. 403. 
 
 Where a police officer, without war- 
 rant, arrested a man who was guilty of 
 no offence, and in preventing an escape 
 struck and killed the prisoner, these facts 
 would at least warrant a verdict of invol- 
 untary manslaughter in the commission 
 of an unlawful act. O'Connor u. Stale, 
 64 Ga. 125. 
 
 If, instead of flying, the criminal stands 
 and resists the officer, then the officer 
 may press forward in his pursuit, even 
 though the case be not one of felony, but 
 inisdemeanor; and if, not desisting, but 
 still pressing forward, he is obliged to 
 take the life of the other, as in self-defence, 
 he will be justified, i Bishop Cr. Pro. § 
 160. See I Hale P. C. 494; i Hawk. P. 
 C. p. 28, §§ 17, 18; Fost. 270; 4 Black. 
 Com. 179; i East P. C. ch. 5, p 307, § 74. 
 
 The person arrested must have notice 
 of the authority to arrest to justify killing 
 him. Williams v. State. 44 Ala. 41. 
 
 If rioters and other like offenders stand 
 their ground, and only by killing them 
 can the disorder be suppressed, it is justi- 
 fiable to do so. 2 Bish. Cr. L. § 655. 
 
 In misdemeanors the officer has no right 
 to kill the offender unless he resists with 
 violence. Williams v. State, 44 Ala. 41; 
 Clement v. State, 50 Ala 117. 
 
 He must secure his prisoner if possible 
 without resort to deadly weapons. Reneau 
 V. State, 2 Lea (Tenn.), 720; s.c, 31 Am. 
 Rep. 626. 
 
 Mr. Russell says, i.Russ. on Cr. (gth 
 Am. Ed.) 747: " Though in cases civil or 
 criminal an officer may repel force by 
 force, where his authority to arrest or 
 imprison is resisted, and will be justified 
 in so doing if death ."hould be the conse- 
 quence; yet he ought not to come to ex- 
 tremities upon very slight interruption, 
 nor without a reasonable necessity. 4 
 Black. Com. 180. And if he should kill 
 
 747 
 
 where no resistance is made, it will be 
 murder; and it is presumed that the 
 offence would be of the same magnitude 
 if he should kill a party after the resist- 
 ance is over and the necessity has ceased, 
 provided that sufficient time has elapsed, 
 for the blood to have cooled, i East P. 
 C. c. 5, s. 63, p. 297. And again, though 
 where a felon flying from justicd is killed 
 by the officer in the pursuit, the homicide 
 is justifiable if the felon could not be 
 otherwise overtaken. i Hale. 481; 4 
 Black. Com. 179; Fost. 271. Yet where 
 a party is accused of a misdemeanor 
 only, and flies from the arrest, the officer 
 must not kill him, though there be a war- 
 rant to apprehend him, and though he 
 cannot otherwise be overtaken ; and if he 
 do kill him, it will in general be murder. 
 Fost. 271; I Hale, 481. So, in civil 
 suits, if the party against whom the pro- 
 cess is issued, fly from the officer en- 
 deavoring to arrest him, or if he fly after 
 an arrest actually made, or out of custody 
 in execution for debt, and the officer not 
 being able to overtake him make use of any 
 deadly weapon, and by so doing, or by 
 other means, intentionally kill him in the 
 pursjiit, it will amount to murder. I 
 Hale, 481; Fost. 271; i East P. C. c. 5, 
 s. 74, pp. 306, 307. And also in the case 
 of impressing seamen, if the party fly, it 
 is conceived that the killing by the officer 
 in the pursuit to overtake ,him would be 
 manslaughter at least, and in some cases 
 murder, according to ilie rules which 
 govern the case of misdemeanors; pay- 
 ing attention, nevertheless, to those 
 usages which have prevailed in the sea- 
 service in this respect, so far as they are 
 authorized by the courts, which have 
 ordinary jurisdiction over such matters, 
 and are not expressly repugnant to the 
 laws of the. land, i East P. C c. 5. s. 75, 
 p. 308; Borthwick's Case, Dougl. 207. 
 If an officer make ap arrest out of his 
 proper district (except as he may be 
 authorized by some act of Parliament), 
 or if an officer have no warrant or author- 
 ity at all, he is no legal officer, nor en- 
 titled to the special protection of the law; 
 and if he purposely kill the party for not 
 submitting to such illegal arrest, it will 
 be murder in all cases, at least where an 
 indifferent person acting in the like man- 
 ner, without any such pretence, would be 
 guilty to that extent, i East P. C. c. 5 
 s. 78, p. 312." 
 
 i. Russell on Crimes (gth Am. Ed.), 
 
3reaking Doors, 
 
 ARREST. 
 
 Hue and Cry. 
 
 9. Hue and Cry — Is the old common-law process of pursuing 
 with horn and with voice all felons, and such as have dangerously 
 
 840; Com. V. Ervvin, i Allen (Mass.), 587; 
 Com. V. Reynolds, 120 Mass. 190; s. c, 
 ■21 Am. Rep. 510; McLennon v. Richard- 
 son, 15 Gray (Mass.),, 74; Barnard v. 
 Bartleit, 10 Cush. (Mass.) 501; State v. 
 Smith, I N. H. 346; Kneas v. Fitler, 2 
 Serg. & R. (Pa.) 263; Bell v. Glapp, 10 
 Johns. (N. Y.)263; s. c, 6 Am. Dec. 339; 
 Williams v. Spenar, 5 Johns. (N. Y.) 352; 
 Cahill V. People, 106 III. 621; State ,z/. 
 Shaw, I Root (Conn.), 134; Kelsey v. 
 Wright, I Root (Conn.), 83; Barb. Cr. L. 
 545; Russell on Crimes, 631; Roscoe's 
 Cr. Ev. 628; Hawkins If. Commonwealth, 
 14 B. Mon. (Ky.) 395; s. c, 6i Am. 
 Dec. 147. 
 
 Where a felony has been actually com- 
 mitted, or a dangerous wound given, a 
 peace officer may justify breaking an en- 
 trance door to apprehend the offender 
 without any warrant, but in cases of mis- 
 demeanors and breach of the peace a 
 ■warrant is required; it likewise seems to 
 te the better opinion that mere suspicion 
 of feluny will not justify him in proceed- 
 ing to this extremity unless he be armed 
 "with a warrant. Foster, 320, 321; Hawk. 
 P. C; b. 2. c. 14, s. 7; 1 Russ. Cri. 748, 
 749. 5th Ed ; sed vide, i Hale P. C. 583; 
 2 Hile P. C. 92. 
 
 In cases of writs, an officer is justified 
 in breaking an outer door upon a capias, 
 groundfd on an indictment for any crime 
 whatever, or upon a capias to find sure- 
 ties for the peace, or the warrant of a 
 justice for that purpose. Hawk. P. C. 
 b. 2, c. 14, s. 3. 
 
 So upon a capias utlagahim, or capiat 
 pro fine. Hawk. P. C. b. 2, c. 14, s. 3; 
 I Hale P. C. 459. 
 
 Or upon an habere facias possessionem. 
 I Hale P. C. 458. 
 
 Or upon the warrant of a justice of the 
 peace for levying a forfeiture in execu- 
 tion of a jud.4ment or conviction. Hawk. 
 P. C. b. 2, c. 14. s. 5. 
 
 If there be an affray in a house, and 
 manslaughter or bloodshed is likely to 
 ensue, a constable having notice of it, 
 and demanding entrance, and being re- 
 fu-ed, and the affray continuing, may 
 break 1 'pen llie doors to keep the peace. 2 
 Hale P. C. 95; Hawk. P.C.b. 2,c. 14, s. 8. 
 
 And if there be disorderly drinking or 
 noise in a house at an unseasonable hour 
 of the night, especially in inns, taverns, 
 or alehouses, the constable or his watch 
 demanding entrance, and being refused, 
 may break open the doors to see and 
 suppress the disorder. 2 Hale P. C. 95; 
 I East P. C. 322. 
 
 So if affrayers fly to a house, and he 
 follows them with fresh suit, he may 
 break open the doors to take them. Hawk. 
 P. C. b. I, c. 63, s. 16. 
 
 But it has been doubted whether a con- 
 stable can safely break open doors in 
 such a case without a magistrate's war- 
 rant, and it is said that at least there 
 must be some circumstances of extraor- 
 dinary violence to justify him in so doing. 
 I Russ. Cri; 390 (t), 5th Ed. 
 
 The privilege is confined to the outer 
 doors and windows only — for if the sheriff 
 or a peace officer enter a house by the 
 outer door, being open, he may break 
 open the inner doors, and the killing in 
 such case would be murder. i Hale 
 P. C. 458. 
 
 If th,e parly whom the officer is about 
 to arrest, or the goods which he is about 
 to seize, be within the house at the time, 
 he may break open any inner doors or 
 windows to search for them, without de- 
 manding admission. Per Gibbs, J., 
 Hutchinson v. Birch, 4 Taunt. 619. 
 
 But it seems that if the party against 
 whom the process is issued be not within 
 the house at the time, the officer must 
 demand admittance before he will be 
 justified in breaking open an inner door. 
 Ratcliffe v. Burton, 3 Bos. & Pul. 223. 
 
 So if the house be that of a stranger, 
 the justification of the officer will depend 
 upon the fact of the goods, or the persons 
 against whom he is proceeding, being in 
 the house at the time. Cooke v. Bin, 5 
 Taunt. 765; Johnson v, Leigh, 6 Taunt. 
 240; I Russ. on Cri. 751, 5th Ed. 
 
 The privilege likewise, extends only to 
 those cases where the occupier or any of 
 his family who have their domestic or 
 ordinary residence there are the objects 
 of the arrest; and if a stranger, whose 
 ordinary residence is elsewhere, upon 
 pursuit, takes refuge in the house of 
 another, such house is no castle of his, 
 and he cannot claim the benefit of sanc- 
 tuary in it. Foster, 320, 321; i East 
 P. C. 323, 
 
 But this must be taken subject to the 
 limitation already expressed in regard to 
 breaking open inner doors in such cases, 
 viz., that the officer will only be justified 
 by the fact of the person sought being 
 found there. Supra, i East P. C. 324; 
 I Russ. Cri. 751, 5th Ed. 
 
 The privilege is also confined to arrests 
 in the first instance; for if a man legally 
 arrested (and laying hands on the pris- 
 oner, and pronouncing the words of 
 arrest, constitute an actual arrest) escape 
 
 748 
 
Breaking Doors. 
 
 ARREST. 
 
 Hue and Cry» 
 
 wounded others. The hue and cry may be raised by constables, 
 private persons, or both. The constable and his assistants have 
 
 from the officer, and take shelter in his 
 own house, the officer may, upon fresh 
 pursuit, break open the outer jioor in 
 order to retake him, having first given 
 due notice of his business, and demanded 
 admission, and having been refused. If 
 it be not, however, on fresh pursuit, it 
 seems that the officer should have a war- 
 rant from a magistrate, i Hale P. C. 
 459 ; Foster, 320; i East, P. C. 324. 
 
 The officer cannot be treated as a tres- 
 passer although he has failed to notify 
 the owner of the house who the person 
 sought to be arrested is, no inquiry hav- 
 ing been made in relation thereto, and in 
 fact the person sought for is not there. 
 Com. V. Reynolds, 120 Mass. igo; s. c, 
 21 Am. Rep. 510. 
 
 An officer has a right and without a 
 warrant to enter any house the door of 
 which is unfastened in which there is a 
 noise amounting to a breach of the peace, 
 and to arrest any person disturbing the 
 peace there in his presence. Com. v. 
 Tobin, loS Mass. 426; s. c, 11 Am. 
 Rep. 375; Com. V. Hastings, 9 Mete. 
 (Mass.) 259. 
 
 If there is an affray in a house in view 
 or hearing of a constable, or where those 
 who have made an affray in his presence 
 fly to a house and are immediately pur- 
 sued by him, and he is not suffered to 
 enter in order to suppress the affray in 
 the first case, or to apprehend the af- 
 frayers in either case, he may justify 
 breaking open the doors, i Russell on 
 Crimes (gth Am. Ed.), 841. 
 
 An officer may break open doors to 
 effect an arrest for contempt of court. 
 Russell on Crimes (9th Am. Ed.), 840; 
 Burdett v. Abbott, 14 East, 157, where 
 the process of contempt proceeded 
 upon the order of the House of Com- 
 mons. 
 
 Where A let a house except one room 
 which he reserved for himself and occu- 
 pied separately, and, the outer door of 
 the house being open, a constable broke 
 open the door of the inner room, occu- 
 pied by A, in order to arrest him, it was 
 held that trespass would not lie against 
 the constable. Williams v. Spencer, 5 
 Johns. (N. Y.) 352. 
 
 An officer cannot break the door of a 
 third person to arrest a criminal not 
 dwelling there unless such person is then 
 actually in the house; but the owner may 
 permit a peaceable entrance and with- 
 draw it at any time if the offender is not 
 in the house, without unlawfully obstruct- 
 ing the officer. Hawkins v. Common- 
 
 wealth, 14 B. Mon. (Ky.) 395; s. c, 6i 
 Am. Dec. 147. 
 
 But it should be observed that in all 
 cases where the doors of strangers are 
 broken open upon the supposition of 
 the person sought being there, it must 
 be at the peril of finding him there; un- 
 less, as it seems, where the parties act 
 under the sanction of a magistrate's war- 
 rant. 2 Hale, 103; Fost. 321; 1 East P. 
 C. c. 5, s. 87, p. 324. 
 
 Mr. Smith, in the note to Semayne's 
 Case, I Sm. Lead. Cas. 114, says: 
 " There may, perhaps, be another case in 
 which the sheriff might justify entering 
 the house of a stranger upon bare sus- 
 picion, viz.: if the stranger were to use 
 fraud, and to inveigle the sheriff into a be- 
 lief that the defendant was concealed in 
 his house for the purpose of favoring his 
 escape, while the officers should be de- 
 tained in searching, or for any other rea- 
 son, it might be lield that he could not 
 take advantage of his own deceit so as to- 
 treat the sheriff who entered under the 
 false supposition thus induced as a tres- 
 passer; or, perhaps, such conduct might 
 be held to amount to a license to the 
 sheriff to enter." It certainly is reason- 
 able in such a case that the party should 
 not be permitted to show that in fact the 
 defendant was not concealed in this 
 house, and this would be in accordance 
 with the principles established by Pirkard 
 v. Sears, 6 A. & E. 469; Heane v. Rog- 
 ers. 9 B. & C. 586; Kieran v. Sanders, 6 
 A. & E. 515; and Gregg v. Wells, m A. & 
 E. 90, in which last case it was held that 
 a party who negligently or culpably 
 stands by and allows another to contract 
 on the faith and understanding of a fact 
 which he can contradict cannot after- 
 Wards dispute that fact in an action 
 agains the person whom he has himself 
 assisted in deceiving. 
 
 By Private Person. — A private persort 
 in fresh pursuit may force an entrance to. 
 a house under circumstances which au- 
 thorize him to make an arrest. 4 Black. 
 Com. 293. He may break in a house 
 and arrest a person to prevent murder. 
 Hancock v. Baker, 2 B. & P. 260 But 
 he cannot force an entrance and commit 
 an assault in defence of persons therein. 
 Rockwell V. Murray, 6 Up. Can. Q. B. 
 412. 
 
 Escape. — If the criminal escape, the 
 officer may break open the doors of his 
 house to rearrest him. Cahill v. People, 
 106 111. 621; Com. V. McGahey, 11 Gray 
 (Mass.), 194. 
 
 749 
 
Hue and Cry, 
 
 ARREST. 
 
 Illegal Arrest. 
 
 the same powers, protection, and indennnification as if acting 
 under the warrant of a magistrate. Private persons who join are 
 justified, even though it should turn out that no felony has been 
 committed. But if a person wantonly, and maliciously, and with- 
 out cause raises the hue and cry, he is liable to punishment as a 
 disturber of the peace. ^ 
 
 10. Illegal Arrest. — An officer is bound to know the law ; and if 
 he makes an arrest upon a supposed warrant which on its face is 
 void, he is liable to the person arrested.* (See FajlSE IMPRISON- 
 MENT.)' 
 
 Where the pursuit is fresh and the 
 party is consequently aware of the object 
 of the officer, the outer door of the house 
 of such party may be broken open by the 
 officer without making known his busi- 
 ness, demanding admission, and receiv- 
 ing refusal. Allen v. Mariin, lo Wend. 
 (N. Y,) 300; s. c., 25 Am. Dec. 564. 
 
 The officer will not be authorized to 
 break open doors in order to retake a 
 prisoner in any case where the first ar- 
 rest has been illegal, i East P. C. t. 5, 
 § 87, p. 324. 
 
 Therefore, where an officer has made 
 an illegal arrest on civil process, and 
 was obliged to retire by the party's 
 snapping a pistol at him several times, 
 and afterwards returned again with as- 
 sistants, who attempted to force the 
 door, when the party within shot one of 
 the assistants it was ruled to be only 
 manslaughter. Stevenson's Case, 10 St. 
 Tr. 462. 
 
 1. Harris Cr. L. (Force's Ed.) 251. 
 
 If a felony be committed, and the felon 
 fiy from justice, or a dangerous wound 
 be given, it is the duty of every man to 
 use his best endeavors to prevent an es- 
 cape; and in such cases, if fresh suit be 
 made, and h fortiori, if hue and cry be 
 levied, all who join in aid of those who 
 began the pursuit will be under the same 
 protection of the law; and the same rule 
 holds if a felon, after arrest, break away 
 as he is being carried to jail, and his 
 pursuers cannot retake him without kill- 
 ing him. I Hale, 489, 490; i Hawk. P. 
 C. c. 2S, s. II; Fost. 309; I East P. C. 
 L. 5, s. 67, p. 298. 
 
 Where, upOn a robbery committed by 
 several, the party robbed raised hue and 
 cry, and the country pursued the robbers, 
 and one of the pursuers was killed by 
 one of the robbers, it was held that this 
 was murder, because the country, upon 
 hue and cry levied, are authorized by 
 law to pursue and apprehend the male- 
 factors, and that, although there were no 
 vfarrant Qf a justice of the peace to raise 
 hue and cry, nor any constable in the 
 
 pursuit, yet the hue and cry was a good 
 warrant in law for the pursuers to appre- 
 hend the felons, and that therefore the 
 killing of any of the pursuers was murder. 
 Jackson's Case, i Hale, 464. 
 
 2. Savacool v. Bougliton, 5 Wend. (N. 
 Y.) 170; Stevens v. Wilkins, 6 Barr. (Pa.) 
 260; Lewin v. Uzuber, 3 Cent. Repr. 
 (Md.) 234; Hubbard v. Lord, 59 Tex. 
 384; Slate V. Wenzel, 77 Ind. 428; Raf- 
 ferty u. People, 69 111. iii; o. c, 72 111. 
 37; s. c, 18 Am. Rep. 601; Moore ». 
 Watts, I 111. IS; State v. McDonald, 3 
 Dev. (N. Car.) 471; State v. Leach, 7 
 Conn: 452; s. c, 18 Am. Dec. n8; Gru- 
 mon V. Raymond, i Conn. 40; s. c, 6 
 Am. Dec. 200; Duckworth v. Johnston, 
 7 Ala. 578; Halstead v. Brice, 13 Mo. 
 171; Ex parte Burford, 3 Cranch. (U. S.), 
 448. See False Imprisonment; War- 
 rant. 
 
 Avoid process affords no protection to 
 the officer serving or attempting to serve 
 the same. Process may be void as to 
 the parties, but voidable only as to the 
 officer. Where a process or warrant is 
 regular and legal in its frame, bearing 
 upon its face all the legal requisites to 
 make it perfect, both in form and sub- 
 stance, and it appears to have been is- 
 sued by a court or magistrate haviiig jur- 
 isdiction of the subject-matter and of the- 
 person of the respondent, the officer will 
 be protected in its service, notwithstand- 
 ing any error or irregularity in the pre- 
 vious issuing of the same or any imposi- 
 tion practised upon the court in obtaining 
 it. State V. Weed, 21 N. H. 262; s. c, 3 
 Am. Dec. 188. See Sturbridge v. Wins- 
 low, 21 Pick. (Mass.) 83; Savacool v. 
 Boughton, 5 Wend. (N. Y.) 170; s. c, 21 
 Am. Dec. 181; Rogers v. MuUiner, 6 
 Wend. (N. Y.) 597; s. c, 22 Am. Dec. 
 546; Horton v. Hendershot, t Hill (N. 
 Y.), 118; Fox z/. Wood, I Rawle(Pa.), 
 143; Jones V. Hughes, 5 S. & R. (Pa.) 299; 
 s. c, 9 Am. Dec. 364: Paul 0. Van Kirk, 
 6 Binn. (Pa.) 124; Brother 7/. Cannon, i 
 Scam. (111.) 200; Robinson v. Harlan, 1 
 Scam. (111.) 237; State v. Curtis, l.Hayw. 
 
 750 
 
Illegal Arrest. 
 
 ARREST. 
 
 Illegal Arrest, 
 
 Where an arrest is clearly illegal, an attempt to make it under 
 the circumstances will be such a provocation as will reduce the 
 case to manslaughter if the party resisted, and in so doing killed 
 the officer.! (See also HOMICIDE.) 
 
 (N. Car.) 471; Faster v. Gault, 2 McM. 
 (S. Car.) 335. 
 
 An arrest without warrant becomes il- 
 legal if there is an unreasonable delay in 
 procuring one after the arrest. Johnson 
 V. Americas, 46 Ga. 80. 
 
 An officer may stop in the execution of 
 process, regular on its face, whenever he 
 becomes satisfied that there is a want of 
 jurisdiction in the court or officer issuing 
 ihe same. Earl v. Camp, 16 Wend. (N. 
 Y.) 562. See Housh v. People, 75' 111. 
 487. 
 
 When a warrant has been issued to ap- 
 prehend a person for an offence less than 
 felony, the police officer who executes it 
 must have the warrant in his possession 
 at the time of arrest. The appellant was 
 summoned to answer an information 
 charging him with trespass in pursuit of 
 conies; as he did not appear in obedience 
 to a summons, a warrant was issued for 
 his apprehension. The respondent, be- 
 ing a police officer to whom the warrant 
 was directed, but not having it in his 
 possession, attempted to arrest the ap- 
 pellant, who thereupon committed an as- 
 sault upon him. Held, that the appellant 
 could not be convicted upon an informa- 
 tion charging him with assaulting the re- 
 spondent in the execution of his duty. 
 Codd V. Cabe, L. R. i Ex. D. 352. See 
 State V. Lovell, 23 Iowa, 304. 
 
 A United States marshal will be justi- 
 fied in making an arrest under a warrant 
 issued by a United States commissioner 
 who did not reside in the judicial district 
 where the alleged offence was committed, 
 describing the party arrested by a ficti- 
 tious name, when in fact the party ar- 
 rested is the party against whom the 
 complaint was filed. Willi&.ms v. Tid- 
 ball, 8 Pac. Repr. (Ariz.) 351. 
 
 Arrest of Passenger. — The Massachu- 
 setts statute does not authorize an arrest 
 by officers not present when the offence 
 is committed, upon complaint by -1. car 
 conductor, and such an arrest is therefore 
 unlawful. Krulevitz v. Eastern R. Co.; 
 3 N. Eng. Repr. (Mass.) 310. 
 
 1. Com. V. Dre./, 4 Mass. 351; Com. 
 V. Carey, 12 Cush. (Mass.) 246; State v. 
 Oliver, 2 Houst. (Del.) 585; Noles v. 
 State, 26 Ala. 31; s. c, 62 Am. Dec. 711; 
 Williams v. Sta*e, 44 Ala. 41; Roberts v. 
 State, 14 Mo. 138; s. c, 55 Am. Dec. 97; 
 State T. Belk, 76 N. Car. 10; State v. 
 Craton. 6 Ired. (N. Car.) 164; Rafferty 
 
 V. People, 69 111. II I ; 72 111. 37; Galvin 
 V. State, 6 Coldw. (Tenn.) 291; R. v. 
 Curran, 3 C. & P. 397; R. v. Patience, 7 
 C. & P. 775; R. V. Addis, 6 C. & P. 388; 
 R. V. Phelps, C. & M. 180; R. v. .How- 
 ath, I Moody, 207; R. w. Thompson, i 
 Moody, 80. 
 
 A person may resist an unlawful at- 
 tempt at arrest, and, if necessary, rather 
 than submit, may lawfully kill the person 
 making it. Simmerman v. State, 16 Neb. 
 615; s. c. 4 Am. Cr. R. 91. 
 
 If a constable take a man without a 
 warrant upon a charge of ill-using a 
 person, which ill-usage, was not in the 
 presence of the constable, and therefore 
 gives him no authority to do so, and the 
 prisoner runs away, and is pursued by J. 
 S. , who was with the constable all the 
 time, and charged by him to assist, 
 and the man kill J. S. to prevent his re- 
 taking him, it will not be murder, but " 
 manslaughter only; because the arrest 
 was illegal, and J. S. ought to have 
 known it was, and then his attempt to 
 retake was illegal also; and that though 
 the prisoner, while in custody of the con- 
 stable, struck the man by whom the 
 charge was given; because a blow whilst 
 he was under the influence of the provo- 
 cation from the illegal arrest caused by 
 such man would not justify the constable 
 in detaining him; at least it will make no 
 difference if the blow was not likely to 
 be followed with dangerous consequen- 
 ces, nor made a new and distinct ground 
 of detainer. Upon an indictment for 
 maliciously cutting Walby, it appeared 
 that a man travelling upon the highway 
 told the constable that a man coming 
 along the road had been ill-using him, 
 and charged the constable, in the prison- 
 er's hearing, to take the prisoner before 
 a magistrate for so misusing him.on which 
 the constable, meeting the prisoner pass- 
 ing along the highway, ordered him to 
 stop for insulting a man on the road, 
 laid hold of him, tapped him on the 
 shoulder, said he was his prisoner, and 
 that he should take him to a magistrate, 
 and ordered Walby to assist him, which 
 W. did, and to which the prisoner sub- 
 mitted. No particulars of what the sup- 
 posed ill-usage or insult consisted of ap- 
 peared in evidence, nor did they pass in 
 the constable's view or hearing, and 
 therefore the apprehension and detainer 
 appeared clearly thus far to have been 
 
 751 
 
Illegal Arrest. 
 
 ARREST. 
 
 Illegal Arrest 
 
 unlawful. Afterwards, and whilst the 
 prisoner was thus in custody and before 
 they found a. magistrate, the prisoner 
 struck the man in the constable's pres- 
 ence, who had made the charge against 
 him, and the constable then also told the 
 prisoner he should take him before a 
 magistrate; and sometime afterwards, as 
 they were proceeding along to a magi- 
 strate's, the prisoner ran away and at- 
 tempted to escape, but was pursued by 
 W. by the constable's order; and being 
 overtaken by him refused to stop, asking 
 W. where his authority was, who said it 
 was in his hand, alluding to a stick which 
 W. then had in his hand and which the 
 prisoner had given up to him at the com- 
 mencement of the detainer; and without 
 further information, when W. was going 
 to take huld of him, the prisoner told 
 him if he would not let him go he would 
 stab him, and then gave him the cut in 
 the face, for which he was thus indicted. 
 Holroyd, J., doubted whether the effect 
 of the first illegal custody might not oper- 
 ate upon the circumstances that sub'se- 
 quenlly took place, as a defence against 
 the present indictment, either in render- 
 ing even the subsequent imprisonment 
 tortious, or depriving the prisoner's con- 
 duct of the necessary legal ingredient of 
 malice; and he reserved the case for the 
 opinion of the judges, who held that the 
 original arrest was illegal, and that the 
 recaption would have been illegal; and 
 therefore the case would not have been 
 murder if death had ensued. R. ii. Cur- 
 van, R. & M. C. C. R. 132. 
 
 In R, V. Curtis, Fost. 135, the prison- 
 er being in the house of a man named 
 Cowling, who had made his escape, swore 
 that the first person who entered to retake 
 Cowling should be a dead man, and, im- 
 mediately upon the officers breaking open 
 the door, struck one of them on the head 
 with an axe and killed him. This was held 
 murder, and a few of the judges were of 
 opinion that even if the officers could not 
 have justified breaking open the door, 
 yet that it would have been a bare tres 
 pass in the house of Cowling, without 
 any attempt on the property or person of 
 the prisoner; and admitting that a tres- 
 pass in the house, with an intent to make 
 an unjustifiable arrest of the owner, could 
 be considered as some provocation to a 
 bystander, yet surely knocking a man's 
 brains out, or cleaving him down with an 
 axe, on so slight a provocation, savored 
 rather of brutal rage, or, to speak more 
 properly, of diabolical mischief, than of 
 human frailty, and it ought always to be 
 remembered that in, all cases of homicide 
 
 752 
 
 upon sudden provocation the law in- 
 dulges to human frailty, and to that 
 alone. 
 
 So in R. V. Stockley, i East P. C. c. 5, 
 § 78, p. 310, the fact that the prisoner 
 deliberately resolved upon shooting 
 Welsh, in case he offered to arrest him 
 again, was, it has been argued, sufficient 
 of itself to warrant a conviction for mur- 
 der, independently of the legality of the 
 warrant, i East P. C. 311. 
 
 When a bailiff, having a warrant to ar- 
 rest a man, pressed early into his cham- 
 ber with violence, but not mentioning his 
 business, and the man not knowing him 
 to be a bailiff, nor that he came to make 
 an arrest, snatched down a sword hang- 
 ing "in his chamber, and stabbed the 
 bailiff, whereof he died; this was held 
 not to be murder, for the prisoner did 
 not know but that the party came to rob 
 or kill him when he thus violently broke 
 into his chamber without declaring his 
 business, i Hale P. C. 470. 
 
 A bailiff having a warrant to arrest C. 
 upon a ca. sa. , went to his house and gave 
 him notice. C. threatened to shoot him 
 if he did not depart; but the bailiff, disre- 
 garding the threats, broken open the 
 windows, upon which C. shot and killed 
 him. It was ruled, i, that this was not 
 murder, becausp the bailiff had no right 
 to break the house; 2, that it was man- 
 slaughter, becaiise C. knew him to be a 
 bailiff; but, 3, had he not known him to 
 be a bailiff, it had been no felony, because 
 done in defence of his house. 
 
 Cook's Case, i Hale, 458; Cro. Car. 
 537; W. Jones, 429. Upon these cases the 
 following very sensible observations are 
 made in Roscoe's Cr. Ev. 8oi : These 
 decisions would appear to countenance 
 the position that where an officer at- 
 tempts to execute an illegal warrant and 
 is in the first instance resisted with such 
 violence by the party that death ensues, 
 it will amount to manslaughter only. But 
 it should seem that in analogy to all other 
 cases of provocation this position requires 
 some qualification. If it be possible for 
 the party resisting to effect his object 
 with a less degree of violence than the 
 infliction of death, a great degree of un- 
 necessary violence might, it is conceived, 
 be evidence of such malice as to prevent 
 the crime from being reduced to man- 
 slaughter. 
 
 In Thompson's Case, i R. & M. C. C. 
 R. 80, where the officer was about to 
 make an arrest on an insufficient charge, 
 the judges adverted to the fact that the 
 prisoner was in such a situation that he 
 could not get away. In these cases it 
 
Illegal Airest, 
 
 ARREST. 
 
 Illegal Arrest. 
 
 would seem to be the duty of the party 
 whose liberty is endangered to resist the 
 officer with as little violence as possible, 
 and that if heuses great and unnecessary 
 violence, unsuited both to the provoca- 
 tion given and to the accomplishment of 
 a successful resistance, it will be evidence 
 of malice sufficient to support a charge 
 of murder. 
 
 So also where, as in Stocltley's Case, 
 I East P. C. I.. 5, § 78, p. 310, and Cur- 
 tis's Case, Fost. 135, the party appears 
 to have acted from motives of express 
 malice, there seems to be no reason for 
 withdrawing such a case from the opera- 
 tion of the general rule that provocation 
 will not justify the party killing, or pre- 
 vent his offence from amounting to mur- 
 der, where it is proved that he acted at 
 the time from express malice. And of 
 this opinion appears to be Mr. East, who 
 says, " it may be worthy of consideration 
 whether the illegality of an arrest does 
 not place the officer attempting it exactly 
 on the same footing as any other wrong- 
 doer." I East P. C. 328. 
 
 It may be remarlced that this question 
 is fully decided in the Scotch law, the 
 rule being as follows: In resisting irreg- 
 ular or defective warrants, or warrants 
 executed in an irregular way, or upon 
 the wrong person, it is murder, if death 
 ensue to the officer by the assumption of 
 lethal weapons, where no great personal 
 violence has been sustained. Alison's 
 Princ. Cr. Law of Scotland, 25. If. says 
 Baron Hume, instead of submitting for 
 the time, and looking for redress to the 
 law, he shall take advantage of the mis- 
 take to stab or shoot the officer when no 
 great struggle has yet ensued and no 
 previous harm of body has been sustained, 
 certainly he cannot be found guilty of 
 any lower crime than murder, i Hume, 
 250. The, distinction appears to be, says 
 Mr. Alison, that the Scotch law repro- 
 bates the immediate assumption of lethal 
 weapons in resisting an illegal warrant, 
 and will hold it as murder if death ensue 
 by such immediate use of them, the more 
 especially if the informality or error was 
 not known to the party resisting; whereas 
 the English practice makes such allow- 
 ance for the irritation consequent upon 
 the irregular interference with liberty, 
 that it accounts death inflicted under such 
 circumstances as manslaughter only. 
 Alison's Princ. Cr. Law of Scotland, 28. 
 
 In this connection Mr. Greaves, the 
 learned editor of Russell on Crimes, says: 
 "In such cases it seems to me that it may 
 be well deserving of consideration 
 whether the first inquiry ought not to be 
 
 I C. of L — 49 
 
 753 
 
 whether or no the act done was caused 
 by the illegal apprehension. If the act 
 done arose from other causes, and had no 
 reference to the illegal arrest, as if it 
 arose from^ previous ill-will, it should 
 seem that the illegality of the arrest ought 
 not to be taken into consideration, be- 
 cause it was not the cause of the act, and 
 therefore could not be truly said to have 
 afforded any provocation for it. Such a 
 case would be like the cases where blows 
 have been given by the deceased, but 
 the fatal blow has been inflicted in con- 
 sequence of previous ill-will. See R. v. 
 Thomas, 7 C. & P. 817; R. v. Kirkham, 
 8 C. & P. 115. From the observations 
 of Parke, B., in R. v. Patience, 7 C. & P. 
 775, I infer that the very learned baron 
 was of opinion that if there were previ- 
 ous malice, the illegal arrest would not 
 reduce the crime to manslaughter; be- 
 cause the previous malice was the cause 
 of the act and not the illegality of ihe- 
 arrest. In such an inquiry the fact that 
 the prison'erwas ignorant at the time that 
 the arrest was illegal would be most ma- 
 terial, because it would almost conclu- 
 sively show that the act did not arise fromi 
 that cause. It should also be observed! 
 that if ' one has a legal and illegal war- 
 rant, and arrests by yirtue of the illegal 
 warrant, yet he may justify by virtue of 
 the legal one; for it is not what he de- 
 clares, but the authority which he has 
 is his justification.' Per Holt. C. J.; 
 Greenville v. The College of Physicians,. 
 12 Mod. 386; and see Crowther v. Rams- 
 bottam, 7' T. R. 654; The Governors of: 
 Bristol Poor v. Wait, i Ad. & E. 264. So- 
 it might be contended that if the partjr 
 apprehended had committed a felony, as. 
 he might be apprehended by any Individ-- 
 ual without a warrant, the apprehension, 
 by a constable under a defective warrant, 
 would not be illegal, as he might justify 
 the arrest as a private individual. See- 
 per Tindal, C. J., in Hoye v. Bush, i M.. 
 & Gr. 775. See also as to a constable's: 
 authority to apprehend any person within, 
 his district, whom he has reasonable- 
 ground to suspect of having committed ai 
 felony, Beckwith v. Philby, 6 B. & C. 
 638. In such a case also it might be con- 
 tended that he might justify the arrest, 
 although in fact he did apprehend under 
 an illegal warrant." 
 
 Where on an indictment for assaulting 
 J. it appeared that the prisoner got into 
 an empty third-class carriage proceeding 
 from M. to S., and got out on the wrong 
 side at N., and being asked by the guard 
 for his ticket, he said he had none, and 
 had intended to get out at the station for 
 
Jurisdiction, 
 
 ARREST. 
 
 Jurisdiction. 
 
 11. Jurisdiction. — The party taking upon himself to execute 
 process, whether by writ or warrant, must be a legal officer for 
 that purpose, or his assistant ; and if an officer make an arrest 
 out of his proper district, or have no warrant or authority at all, 
 or if he execute process out of the jurisdiction of the court from 
 whence it issues, he will not be considered as a legal officer en- 
 titled to the special protection of the law; and, therefore, if a 
 struggle ensue with the party injured and such officer be killed, 
 the crime will be only manslaughter.* 
 
 C. No other demand was made on the 
 prisoner; but the guard ordered him to get 
 into a second-class carriage, and locked 
 the doors. The train then proceeded to 
 S., a distance of several miles. The 
 prisoner, on getting out, was asked for 
 his ticket; and on his not producing it, 
 the second-class fare from M. to S. was 
 demanded. It not being paid, the police- 
 man at the station collared the prisoner, 
 who gave him a blow and got away. He 
 was pursued and retaken, wfien he cut 
 the policeman's hand. The reason al- 
 leged for bringing the prisoner to S. 
 was that it was the headquarters of the 
 railway authorities, and there was no 
 mode of dealing with the prisoner at 
 N. Wightman, J., told the jury (after 
 stating the facts that occurred at N.):' 
 "The guard, instead of then taking him 
 on the specific charge of going so far 
 without his ticket, which perhaps he 
 might have done, takes him in a second- 
 class carriage to S. several miles out of 
 the way. A ticket from M. to. S. is there 
 demanded, and afterwards the full fare. 
 It seems to me that this is clearly beyond 
 the law, and that the railway authorities 
 had no right to demand the fare from N. 
 to S. I do not give any opinion as to 
 the right to convey a person refusing to 
 produce his ticket at one station on to 
 another, on the charge of not paying his 
 fare for that part of the journey which 
 the prisoner had voluntarily and fraudu- 
 lently performed; but whatever might 
 have been the situation of the parties if, 
 on demand and refusal of the ticket or 
 fare at N., the charge was there made, 
 and he had been conveyed to S. for the 
 purpose of dealing with it; here, the ar- 
 rest being for non-payment of the fare to 
 S. , the apprehension was illegal, and the 
 prisoner had a right to resist it." R. v. 
 Mann, 6 Cox C. C. 461. 
 
 1. I Hale, 457-459; I East P. C. c. 5, 
 § 80, pp. 312-314; I Russ. on Cr. 823; 
 Krug V. Ward, 77 111. 603; Kindred v. 
 Stitt, 51 111. 401; Ressler v. Peats, 86 111. 
 275; Sturm V. Potter, 41 Ind. 181. 
 
 The portions of this subject relating to 
 
 murder and manslaughter will be fully 
 treated under the title Homicide. 
 
 It has been ruled that homicide com- 
 mitted upon a bailiff attempting to exe- 
 cute a writ within an exclusive liberty, 
 such writ not having a non-omittas clause, 
 will not amount to murder. R. v. Mead, 
 2 Stark. C. 205. 
 
 It has been held that if the constable 
 of the vill of A came into the vill of B 
 to suppress some disorder, and in the 
 tumult the constable be killed in the 
 vill of B, this will be only manslaugh- 
 ter, because he had no authority in 
 B as constable, i Hale, 459. But it 
 was considered that if the constable 
 of the vill of A had a particular pre- 
 cept from a justice of peace directed 
 to him by name, or by his name of 
 office as constable of A, to suppress a 
 riot in the vill of B, or to apprehend a 
 person in the vill of B for some mis- 
 demeanor within the jurisdiction and 
 conusance of the justice of the peace, and 
 in pursuance of that warrant he went to 
 arrest the party in B, and in executing 
 his warrant was killed in B, this amount- 
 ed to murder, i Hale, 459; 2 Hawk. P. 
 C. c. 13, §65 27, 30. 
 
 Where a warrant was directed "to C. 
 S., one of the collectors of the parish of 
 W., the constables of the said parish, and 
 all others his Majesty's officers," to levy 
 a distress, it was held that the constable 
 of W. had no authority to execute it out 
 of the parish of W. ; the rule of law being 
 that where a warrant is directed to 
 officers as individuals, or to individuals 
 who are not ofiicers, they may execute it 
 anywhere within the extent of the magis- 
 trate's jurisdiction; but where it is di- 
 rected to men by the name of their office, 
 it is confined to the districts in which 
 they are officers. R. v. Weir, i B. & C. 
 288. 
 
 The sheriff of one county cannot make 
 an arrest in another county except on 
 fresh pursuit in case of an escape, nor 
 can he detain in such other county an ar- 
 rested prisoner, except under a writ of 
 habeas corpus. Page v. Staples, 13 R. I. 
 
 754 
 
Sssisting Arrest. 
 
 ARREST. 
 
 Besisting Arrest, 
 
 12. Resisting Arrest. — If an officer be resisted while in the execu- 
 tion of his duty and the party so resisting kill the officer, it will 
 be murder.i (See HOMICIDE.) Every one coming to the officer's 
 aid and lending his assistance, whether commanded or not, is 
 under the same protection as the officer himself. This protection 
 extends, under certain limitations, to the cases of private persons 
 interposing for preventing mischief from an affray, or using their 
 endeavors to apprehend felons and to bring them to justice; such 
 persons being likewise in the discharge of a duty required of them 
 by the law.'-* (See HOMICIDE.) 
 
 306; Piatt V. The Sheriffs of London, 
 Plowd. 35; Hammond J/. Taylor, 3 B. & 
 A. 408; Avery v. Seeley, 3 W. & S. (Pa.) 
 494- 
 
 1. I Russ. on Cr. (gth Am. Ed.) 734; 
 I Bish. Cr. L. § 441, 2 lb. §§ 699, 705; 
 
 1 Whart. Cr. L. § 413; i Green. Cr. R. 
 155; Desty's Cr. L.§ 129; State i/. Oliver, 
 
 2 Houst. (Del.) 585; V)\\\v. State, 25 Ala. 
 15; Johnson v. State, 30 Ga. 426. 
 
 Killing an officer will amount to mur- 
 der, though he has no warrant and was 
 not present when any felony was com- 
 mitted, but takes the party on a charge 
 only (see Homicide); and though such 
 charge does not in terms specify all the 
 particulars necessary to constitute the 
 felony. And it appears that it will be no 
 excuse for killing an officer that such 
 officer was proceeding to handcuff the 
 party who was in his custody upon a 
 charge of felony. 
 
 The prisoner had produced a forged 
 bank-note; and from his conduct at the 
 time, which justified a suspicion that he 
 knew it to be forged, he was apprehended 
 and taken to a constable, and delivered 
 with the note to the constable; and the 
 charge to the constable was, ' ' because he 
 had a forged note in his possession." 
 After-he had been in custody at the con- 
 stable's some hours, the constable was 
 handcuffing him to another man,, when he 
 pulled out a pistol and shot the con- 
 stable. The constable was not killed, 
 but fhe prisoner was indicted upon the 43 
 Geo. Ill, c. 58; and it was urged on his 
 behalf that the charge imported no legal 
 offence, for unless he knew the note to be 
 forged he was no felon; and if the charge 
 was insufficient, the arrest was illegal; 
 and killing the officer (if that had taken 
 place) would have been only manslaugh- 
 ter. But the judges were all of opinion 
 that this defect in the charge was imma- 
 terial; that it was not necessary for such 
 a charge to contain the same accurate 
 description of the offence as would be re- 
 quired in an indictment; and that the 
 charge in question must have been con- 
 
 sidered as imputing to the prisoner a 
 guilty possession. R. v. Ford, R. & R. 
 329, and MSS. Bayley, J. 
 
 A peace officer has the right to arrest 
 one who is committing a breach of the 
 peace in his presence, and to use such 
 force as is necessary to make it; and if 
 the person so disturbing the peace knows 
 that the person attempting the arrest is 
 an officer and kills him, it is murder; if 
 he does not know the fact, it is man- 
 slaughter. Fleetwood v. Commonwealth, 
 80 Ky. i; s. >,., 4 Am. Cr. R. 36; Mock- 
 abee; v. Commonwealth, 78 Ky. 380. 
 
 Officers De Facto. — Under section 6, art. 
 14. Const. Mo., requiring all officers un- 
 der the authority of the State to take an 
 oath of office, a deputy constable regular- 
 ly appointed who has not taken the oath 
 of office is not an officer de jure, but is an 
 officer de facto, and others have no right 
 to resist him in the performance of the 
 duties of a constable; and when such an 
 officer is on trial under indictment for 
 murder for killing one who had resisted 
 him while attempting to make an arrest, 
 he should be treated as an officer, and 
 the instruction to the jury should proceed 
 on the theory that he is one. State v. 
 Dierberger. 2 S. W. Repr. (Mo.) 286. 
 
 2. I Russ. on Cr. (gth Am. Ed.) 734; 
 Coyles z/. Hurtin, 10 Johns. (N. Y.) 85; 
 Brooks v. Commonwealth, 61 Pa. St. 
 352; State V. Oliver, 2 Houst. (Del.) 585; 
 Dill V. State, 25 Ala. 15 ; State v. Alford, 
 80 N. Car. 445; Galvin v. State, 6 Coldw. 
 (Tenn.) 283; Angell v. State, 36 Tex. 542; 
 People V. Moore, 2 Doug. (Mich.) i. 
 
 With respect to private persons using 
 their endeavors to bring felons to justice, 
 it should be observed, byway of caution, 
 that they must be careful to ascertain, in 
 the first instance, that a felony has 
 actually been committed, and that it has 
 been committed by the person whom they 
 would pursue and arrest. For if no felony 
 has been committed, no suspicion, how- 
 ever well founded, will bring the person 
 , so interposing within this especial pro- 
 tection o£ the law; nor will it be extended 
 
 755 
 
Besisting Arrest. 
 
 ARREST, 
 
 Eesisting Arrest. 
 
 Though resistance be made to an officer of justice, yet if the 
 
 ly acknowledged to bear the office he had 
 assumed. [l Hawk, P. C. c. 31, §§ 49, 
 50.] As if A, B, and C be in a tumult 
 together, and D, the constable, come to 
 appease the affray, and A, knowing-him 
 to be the constable, kill him, and B and 
 C, not knowing him to be the constable, 
 come in, and finding A and D strug- 
 gling, assist and abet A in killing the 
 constable, this is murder in A, but man- 
 slaughter in B and C. [i Hale, 438.] 
 Where a constable interferes in an af- 
 fray to keep the peace, and is killed, such 
 of the persons concerned in killing him 
 as knew him to be a constable are guilty 
 of murder; and such as did not know it, 
 of manslaughter only, [i Hale, 446. J 
 I Russ. on Cr. (gth Am. Ed.) 735. See 
 Homicide. 
 
 The deceased having been required by 
 a policeman to aid him in taking a maa 
 whom he had apprehended on suspicion 
 of stealing potatoes to the station-house, 
 did so for some time, and then was going^ 
 away, when he was attacked and beaten 
 to death; it was objected that he was not 
 at the time aiding the policeman. Colt- 
 man, J.: "He is entitled to protection 
 eundo, morando, et redeundo" R. v 
 Phelps] C. & M. 180. 
 
 Where private persons use their en- 
 deavors to bring felons to justice, some 
 cautions ought to be observed. In the 
 first place, it should be ascertained that 
 a felony has actually been committed, or 
 that an actual attempt to commit a felony 
 is being made by the party arrested; for 
 if that be not the case, no suspicion, how- 
 ever well grounded, will bring the person 
 so interposing within the protectioa 
 which the law extends to persons acting 
 with proper authority. If it is clear that 
 a felony has been committed, the next 
 consideration will be whether it was com- 
 mitted by the person intended to be pur- 
 sued or arrested; for, supposing a felony 
 to have been actually committed, but not 
 by the person arrested or pursued upon 
 suspicion, this suspicion, though prob- 
 ably well founded, will not bring the per- 
 son endeavoring to arrest or imprison 
 within the protection of the law so far as 
 to excuse him from the guilt of man- 
 slaughter if he should kill; or, on the 
 other hand, to make the killing of him 
 amount to murder It seems that, in 
 either case, it would only be manslaugh- 
 ter ; the one not having used due dili- 
 gence to be apprised of the truth of the 
 fact, the other not having submitted and 
 rendered himself to justice, i Russ. on 
 Cr. (gth Am. Ed.) 799. 
 
 to those who, where a felony has actually 
 been committed, upon suspicion, pos- 
 sibly well founded, pursue or arrest the 
 wrong person, [i Hale, 490; Fost. 318.] 
 But the law is otherwise in the case of 
 an officer acting in pursuance of a war- 
 rant. For if A, being a peace officer, has 
 a warrant from a proper magistrate for 
 the apprehending of B by name, upon a 
 charge of felony; or if B stands indicted 
 for felony; or if the hue and cry is levied 
 against B by name; in these cases, if B, 
 though innocent, fly, or turn and resist, 
 and in the struggle or pursuit is killed by 
 A, or any person joining in the hue and 
 cry, the person so killing will be indem- 
 nified; and, on the other hand, if A, or 
 any person joining in the hue and cry, is 
 killed by B, or any of his accomplices 
 joining in that outrage, such killing will 
 be murder; for A and those joining with 
 him were in this instance in the discharge 
 of a duty required from them by the law; 
 and, in case of their wilful neglect of 
 it, subject to punishment. [Fost. 318.] 
 Upon these principles it may be laid 
 down as a general rule that where per- 
 sons having authority to arrest or im- 
 prison, using the proper means for that 
 purpose, are resisted in so doing and 
 killed, it will be murder in all who take 
 a part in such resistance; for it is homi- 
 cide committed in despite of the justice 
 of the kingdom. This rule is laid down 
 upon the supposition that resistance be 
 made; and, upon that supposition, it is 
 conceived that it will hold in all cases, 
 whether civil or criminal; for under cir- 
 cumstances of resistance, in either, case, 
 the persons having authority to arrest or 
 imprison may repel force by force, and 
 will be justified if death should ensue in 
 the struggle; while, on the other hand, 
 the persons resisting will be guilty of 
 murder. [Fost. 270, 271; i Hale, 494f 
 3 Inst. 56; 2 Hale, 117, 118.] And it 
 has been decided that if in any quar- 
 rel, sudden or premeditated, a justice of 
 peace, constable, or watchman, or even 
 a private'person, be slain in endeavoring 
 to keep the peace and suppress the af- 
 fray, he who kills him will be guilty of 
 murder, [i Hawk. P. C. c. 31, §§ 48, 54-] 
 But in such case the person slain must 
 have given notice of the purpose for 
 which he came, by commanding the 
 parties in the king's name to keep the 
 peace, or by otherwise showing that it 
 was not his intention to take part in the 
 quarrel, but to appease it. [Fost. 272.] 
 Unless, indeed, he were an officer within 
 his proper district, and known orgeneral- 
 
 756 
 
Xesisting Arrest, 
 
 ARREST. 
 
 Kesisting Arrest. 
 
 officer kill the party after the resistance is over and the necessity- 
 has ceased, the crime will at least be manslaughter.^ 
 
 If a person -resist an officer through ignorance of his official 
 character, and does not use undue violence in making such resist- 
 ance, such ignorance will be a defence for making the resistance.* 
 
 With respect to the persons who shall be considered as taking 
 a part in the resistance, it may be observed that if the party who 
 is arrested yield himself and make no resistance, but others endea- 
 vor to rescue him and he do no act to declare his joining with 
 them, if those who come to rescue him kill any of the officers, 
 this is murder in them but not in the party arrested ; but not so 
 if he do any act to countenance the violence of the rescuers.^ 
 
 1. Russ. on Cr. (gth Am. Ed.) S58. 
 
 2. Yates w. People, 32 N. Y. 509; 
 Logue V. Commonwealth, 38 Pa. St. 265 ; 
 s. c, 80 Am. Dec. 481; State v. Belle, 76 
 N. Car. id; Johnson v. State, 26 Tex. 
 117. 
 
 It appeared that, in the morning of the 
 day mentioned in the indictment, the 
 prisoner stole some wheat from an out- 
 house belonging to one S., and the wheat 
 being soon after found concealed in an 
 adjoining field, S., W., and others 
 watched near the spot, expecting that the 
 thief would come to carry it away, and 
 that they should thus be able to discover 
 and apprehend him. In the course of 
 the day the prisoner and another man 
 walked into the field and lifted up the 
 bag containing the wheat. They were 
 immediately pursued, and W. seized the 
 prisoner without desiring him to surren- 
 der, or stating for what reason he was 
 apprehended. A scufHe ensued, during 
 which, before W. had spoken, the pris- 
 oner drew a knife and cut him across the 
 throat. Lawrence, J., held that as W. 
 did not communicate to the prisoner the 
 purpose for which he seized him, the case 
 did not come within the statute, for if 
 death had ensued it would only have been 
 manslaughter. But he said that if a 
 proper notification had been made before 
 the cutting, the case would have assumed 
 a different complexion. R. v. Ricketts, 
 3 Camp. 68. See R. v. Forbes, 10 Cox. 
 C. C. 362. 
 
 3. I Russ. on Cr. (gth Am. Ed.) 736. 
 If a man be arrested, and he and his 
 
 company endeavor a rescue, and while 
 they are fighting one who knows nothing 
 of the arrest, coming by, act in aid of 
 the party arrested, and one of the bailiffs 
 be killed, the person so acting in aid is 
 guilty of murder, for a man must take 
 the consequence of joining in any unlaw- 
 ful act, such as fighting, and his igno- 
 rance will not excuse him where the fact 
 is made murder by the law without any 
 
 actual precedent malice, as in the case of 
 killing an officer in the due execution of 
 his office [Stanley's Case, Kel. 87]. But 
 it should be observed that in another re- 
 port of the same case it is said to have 
 been resolved that if a person, not know- 
 ing the cause of the struggle, had inter- 
 posed between the bailiff and the party 
 arrested, with intent to prevent mischief, 
 it would not have been murder in such 
 person, though the bailiff's assistant 
 were killed by one of the rescuers [R. v. 
 Stanslie, i Sid. 160, MSS.]; and it should 
 seem that, in a case of this kind, the ma- 
 terial inquiry would be whether the 
 stranger interfered with the intention of 
 preserving the peace and preventing mis- 
 chief, for if he interposed for the express 
 purpose of aiding one party against the 
 other, he must abide the consequences at 
 his peril, i East P. C. c. 5, § 83, p. 318. 
 A beat B, a constable, who was in the 
 execution of his office, and they were 
 parted, and then C, a friend of A, rushed 
 suddenly in and took up the quarrel, fell 
 upon the constable and killed him in the 
 struggle; but A was not engaged in this 
 after he was parted from B ; and it was 
 holden by two judges that this was murder 
 only in C, and A was acquitted, because 
 it was a sudden quarrel and it did not 
 appear that A and C came upon any de- 
 sign to abuse the constable [i East P. 
 C. c. 5, § 63, p. 296]. But if a. man 
 begin a riot, and that same riot continue, 
 and an officer be killed, he that began 
 the riot would, if he had remained pres- 
 ent at it, be a principal murderer, though 
 he did not commit the fact. R. v. Wallis, 
 I Salk. 334; I Russ on Cr. (gth Am. Ed.) 
 736. 
 
 J. and four others having committed a 
 robbery, were pursued by the country 
 upon hue and cry, and J. turned upon 
 his pursuers (others of the robbers being 
 in the same field and having often re- 
 sisted the pursuers), and refusing to yield, 
 killed one of the pursuers; it was held 
 
 757 
 
Eesisting Arrest. ARREST— ARRIVAI^ARSON. At Common Law. 
 
 An officer may arrest one who stands in his way for the purpose 
 of preventing him from making an arrest, and where one encour- 
 ages a person arrested, or being arrested, to resist the officer, he 
 may be taken into custody. ^ 
 
 AREEST OF JUDGMENT. See Judgment. 
 
 ARRIVAL. — The act of coming to or reaching a place.'^ 
 
 ARSON. 
 
 House Completed — Occupied. 
 Possession, How to be De- 
 scribed. 
 Malicious and Wilful. 
 Intent. 
 Corpus Delicti. ' 
 
 1. At Common Law. — The offence of arson, which is a felony at 
 conimon law, is defined by Lord Coke to be the malicious and vol- 
 untary burning the house of another, by night or by day.^ 
 
 I. At Common Law. 
 
 T- 
 
 2. Proof of the Setting Fire. 
 
 8. 
 
 3. Property set Fire to. 
 
 
 4. House. 
 
 9- 
 
 5. Out-buildings. 
 
 10. 
 
 6. Curtilage. 
 
 II- 
 
 that inasmuch as all the robbers were^of 
 a company and made a common resist- 
 ance, and so one animated the other, all 
 those of the' company of the robbers that 
 were in the same field, though at a dis- 
 tance from J., were principals, viz., pres- 
 ent, aiding, and abetting; and it was also 
 held that one of the malefactors who was 
 apprehended a little before the party was 
 hurt, being in custody when the stroke 
 was given, was not guilty unless it could 
 be proved that after he was apprehended 
 he had animated J. to kill the party. 
 Jackson's Case, i Hale, 464. 
 
 1. Levy V. Edwards, i C. & P. 40; 
 White V. Edmunds, Peake, 8g. See Mc- 
 Mahan v. Green, 34 Vt. 69; Coyles v. 
 Hurtin, lo Johns. (N. Y.) 85; Roddy v. 
 Finnegan, 43 Md. 490. 
 
 A statute authorized the tax-collector 
 to arrest the body of the delinquent tax- 
 payer for want of goods or chattels 
 whereon to make distress. The tax- 
 payer pointed out cattle in a barn-yard, 
 saying, "there are the oxen, cows, 
 steers, etc.; take what you will," but de- 
 clined upon request to turn them out of 
 the barn-yard for the collector. Held, 
 that the collector was justified in ar- 
 resting him. State v. Roberts, 52 N. H. 
 492. 
 
 2. Arrive and Enter. — These words are 
 not always synonymous, and there cer- 
 tainly may be an arrival without an actual 
 entry or an attempt to enter. U. S. v. 
 An Open Boat and Lading, 5 Masos 
 (U.S.C.C), 132. 
 
 Arrival at Port. — Where a vessel arrived 
 at a harbor, therefore at some distance 
 from the town, but did not go up to the 
 town nor come to an entry, it was not an 
 
 arrival at port. Harrison v. Vose, 9 How. 
 (U. S.) 372. 
 
 Not an arrival in port by accident or 
 necessity, but intentionally as one of the 
 termini of the voyage. U. S. v. Shack- 
 ford, 5 Mason (U.S.C.C.), 445. 
 
 But the voluntary coming into a foreign 
 port in the course of a voyage, although 
 for advices only, was an arrival. See 
 Parsons v. Hunter, 2 Sumn. (U.S.C.C.)' 
 419. 
 
 To be an arrival the vessel must have 
 dropped its anchor or moored. Gray v, 
 Gardner ei at. , 17 Mass. 190. 
 
 Arrival within the Limits of the United 
 States. — He/it, the moment a vessel came 
 voluntarily within the Chesapeake Bay 
 there was an arrival within the United 
 States. Thomson & Dixon v. The 
 United States, i Brock. (U. S. C. C.) 407. 
 
 In an Insurance Policy. — Where the 
 policy insured a vessel for a voyage to a 
 certain port and for twenty-four hours 
 after anchoring in safety, the risk is not 
 terminated by an arrival and lying at 
 anchorage outside the. harbor for more 
 than twenty-four hours. Simpson v. 
 Pacific Mut. Ins. Co., i Holmes (Mass.), 
 136. 
 
 3. 3 Inst. 66; 1 Hale P. C. 566. 
 
 The setting fire to the house of another, 
 maliciously to burn it, is not at common 
 law a felony, if either by accident or 
 timely prevention the fire does not take 
 place. I Hale P. C. 568. 
 
 The words ' ' house or building" are 
 synonymous. State v. Moore, 6i Mo. 
 276. 
 
 "House" imports a dwelling-house. 
 Com. V. Posey, 4 Call (Va.), 109; s. c, 2 
 Am. Dec, 560. 
 
 758 
 
At Common Law. 
 
 ARSON. 
 
 Tioot of the Setting Fire. 
 
 2. Proof of the Setting Fire. — To constitute arson at common law 
 it must be proved that there was an actual burning of the house 
 
 An indictment for burning the dwelling- 
 house of another is not sustained by 
 proof that the defendant burned the house 
 by the owner's procurement, to enable 
 him to obtain money from an insurer. 
 Com. V. Makely, 131 Mass. 421. 
 
 When one burns the dwelling-house 
 that he is lawfully occupying, in legal 
 sense, it is not arson ; for arson is a crime 
 against the security of the dwelling-house 
 as such, and not as property. State v. 
 Hannett, 54 Vt. 83. 
 
 Where a prisoner sets fire to a jail in- 
 tending only to burn a l;iC>le in the floor 
 for the purpose of effecting his escape, it 
 is not arson. Delany v. State, 41 Tex. 
 601; People V. Cotteral, 18 Johns. (N. 
 Y.) 115; State V. Mitchell, 5 Ired. L. (N. 
 Car.) 350. / Compan Jenkins v. State, 53 
 Ga. 33. 
 
 The crime of arson was complete at 
 common law by the burning of any part 
 of a house, and a house is burned when it 
 is charred, that is, when any of the wood 
 therein is reduced to coal. State v. Hall, 
 93 N. Car. 571. 
 
 Corpus Delicti. — In a prosecution for 
 arson, the corpus delicti is not the fact 
 that a house was burned down, but that it 
 was burned by the wilful act of some 
 person criminally responsible for his acts, 
 and not by natural or accidental causes. 
 Winslow V. State, 76 Ala. 42; s. c., 5 Am. 
 Cr. R. 43! 
 
 A Burning mnat be Charged. — Where 
 an indictment under the statute charged 
 the defendants with unlawful setting fire 
 to a certain lot of fodder, etc., but did 
 not charge that they burned it it was 
 held fatally defective, and the judgment 
 was arrested. State v. Hall, 93 N. Car. 
 
 571- 
 
 In Howel v. Commonwealth, 5 Gratt. 
 Va. 664, the indictment alleged that the 
 prisoner "set fire to a certain house," 
 while the statute used the words " burn 
 any house," etc., and both expressions 
 are found in different sections of the en- 
 actment. It was held that the statutory 
 offence was not sufficiently charged. See 
 State V. Hall, 93 N, Car. 571; Cochrane. 
 State, 6 Md. 400; Mary v. State, 24 Ark. 
 
 44- 
 
 Attempt to Commit Arson. — Defendant 
 having made preparations for burning a 
 building, left his supposed accomplice at 
 the building, saying he would go and get 
 some matches, but did not return, and an 
 hour or so afterward was arrested; held, 
 that his failure to return was not proof 
 that he had abandoned his purpose. When 
 
 the evil intent is supplemented by the 
 requisite act toward its commission, the 
 offence is complete. State v. Hayes, 78 
 Mo. 307. 
 
 It is a sufficient overt act to render a 
 person liable to be found guilty of at- 
 tempting to set fire to a staclc, if he go to 
 the stack with the intention of setting fire 
 to it, and light a lucifer match for that 
 purpose, but abandon the attempt because 
 he finds that he is being watched. R. v. 
 Taylor, i F. & F. 511. 
 
 In this case Pollock, C. B., told the 
 jury that, if they thought the prisoner in- 
 tended to set fire to the stack, and that he 
 would have done so if he had not been in- 
 terrupted, this was, in his opinion, a suf- 
 ficient attempt to set fire to the stack, 
 within the meaning of the statute. "It 
 is clear," said the learned judge, "that 
 every act committed by a person with the 
 view of committing the felonies therein 
 mentioned is not within the statute; as^ 
 for instance, buying a box of lucifer 
 matches with intent to set fire to a house. 
 The act must be one immediately and di- 
 rectly tending to the execution of the 
 principal crime, and committed by the 
 prisoner under such circumstances as that 
 he has the power of carrying his intention 
 into execution. If two persons were to 
 agree to commit a felony, and one of them 
 were, in execution of his share in the 
 transaction, to purchase an instrument 
 for the purpose, that would be a suffi- 
 cient overt act in an indictment for con- 
 spiracy, but not in an indictment of this 
 nature." 
 
 An attempt may consist in merely so- 
 liciting another to commit the arson. 
 People V. Bush, 4 Hill (N. Y.), 132. Cam- 
 fare McDade v. People, 29 Mich. 50; s. 
 c, I Am. Cr. R. 81. See generally as to 
 attempts, Com. v. Flynn, 3 Cush. (Mass.) 
 525; People V. Bush, 4 Hill(N. Y.), 133; 
 Young V. Commonwealth, 12 Bush (Ky.), 
 
 243- 
 
 Setting Fire to Goods in a House. — In 
 R. V. Lyons, 28 L. J. M. C. 33, a ques- 
 tion was raised whether a. man could 
 be indicted for setting fire to goods in 
 his own house with intent thereby to 
 defraud an insurance company. The 
 house was not set fire to. It was con- 
 tended that as merely setting fire to a 
 man's own house without any special in- 
 tent was not felony at common law, nor 
 was made so by any statute, setting fire 
 to goods in a man's own house even with 
 a fraudulent intent was not felony either, 
 as the 14 & 15 Vict. c. 19, s. 3, only made 
 
 759 
 
:Froof of tlie Setting Fire. 
 
 ARSON. 
 
 Proof of the Setting Eire. 
 
 ■or of some part of it, though it is not necessary that any part 
 should be wholly consumed, or that the fire should have any con- 
 tinuance.i 
 
 jt felony to set fire to goods in a building, 
 the setting fire to which is made felony 
 by that or any -other statute. But the 
 ■court held that the conviction was good, 
 as the offence charged clearly came 
 within the true meaning and intention of 
 the legislature, giving the section a rea- 
 sonable construction. An opinion was, 
 however, expressed in the course of the 
 argument, that the indictment ought to 
 follow the words of the statute and ex- 
 pressly to state that the goods were set 
 lire to in a building the setting fire to 
 which was a felony, which was not done 
 here; but the omission was not consid- 
 ered to be a ground for quashing the con- 
 viction. The terms of the present statute 
 (24 & 25 Vict. c. 97, s. 7) are somewhat 
 differeijit. See R. v. Lyons, 5 Up. Can. 
 L. G. 70. 
 
 Mr. Roscoe says (Cr. Ev. loth Ed. 295): 
 " The effect of the decision in R. v. 
 Lyons, supra, has been very extraordi- 
 nary. The statute in force at the time 
 that case was decided made it a felony to 
 set ^re to goods in any house the setting 
 fire to which is felony, e.g., a dwelling- 
 house. Lyon's house, however, was his 
 own property, and it would not be a felony 
 to fire it unless with an intent to injure 
 or defraud with respect to the house, of 
 which there was no evidence. Pollock, 
 C. B., said: ' We think the offence is 
 complete if there be a setting fire to the 
 goods under such circumstances as, if 
 shown with respect to a house set on fire, 
 would render the setting fire to the house 
 a felony. Here the intent to' defraud is 
 alleged with respect to the goods. The 
 setting fire t6 the house with the like intent 
 would be felony.' Instead of adhering 
 strictly to the language of Pollock, C. B., 
 the present statute speaks of setting fire 
 to goods under such circumstances that 
 if the building were thereby set fire to 
 the offence would amount to felony. It 
 has accordingly been held that the jury 
 must be asked, supposing the house 
 caught fire, would it have been wilful and 
 malicious firing, and if the jury negative 
 any malice or recklessness with respect 
 to the house, the prisoner cannot be con- 
 victed of the felony, notwithstandingthat 
 he set fire to the goods maliciously mean- 
 ing to destroy them. The facts of the 
 case were as follows: The prisoner, from 
 ill-will to the prosecutrix, broke up her 
 chairs/ tables, and other furniture, made 
 a pile of them and her clothes on the stone 
 floor of the kitchen of_her lodgings, and 
 
 lit them at the four corners so as to make 
 a bonfire of them. The building would 
 almost certainly have been burned in con- 
 sequence had not the police, who were 
 sent for, succeeded in extinguishing the 
 bonfire. The learned judge (Blackburn,' 
 J.) directed the jury, if they thought the 
 prisoner was aware of what he was do- 
 ing, and that it would probably set the 
 building on fire, or was at best reckless 
 whether it did or not, they would find 
 him guilty of the felony. The jury, how- 
 ever, found him ' guilty, but not so that 
 if the house had caught fire, the setting 
 fire to the house would have been wilful 
 and malicious.' It was held that the con- 
 viction was bad. R. v. Child, L. R. i 
 C. C. R. 307; 40 L. J., M. C. 127; R. V. 
 Vattrass, 15 Cox, 73; R. v. Harris, 15 
 Cox, 75." 
 
 1. 2 East P. C. 1020; I Hale P. C. 
 569; Levy V. People, 80 N. Y. 327; 
 People V. Butler, 16 Johns. (N. Y.) 203; 
 Com. w.Van Schaack, 16 Mass. 105; Com. 
 V. Tucker, no Mass. 403; People v. Hag- 
 gerty, 46 Cal. 354; People v. Simpson, 50 
 Cal. 304; Hester v. State, 17 Ga. 130; 
 Phillips V. State, 29 Ga. 105; Graham v. 
 State. 40 Ala, 659; States'. Sandy, 3 Ired. 
 L. (N. Car.) 570; State v. Mitchell, 5 
 Ired. L. (N. Car.) 350; Graham v. State, 
 40 Ala. 650; Mary v. State, 24 Ark. 44; 
 State V. Babcock, 51 Vt. 570; State v. 
 Dennin, 32 Vt. 158. Compare Com. z/. " 
 Francis, Thach. Cr. Cas. (Mass.) 240; 
 Com. V. Betton, 5 Cush. (Mass.) 427; 
 State V. De Bruhl, 10 Rich. L. (S. Car.) 
 
 23- 
 
 Set Fire. — In the g Geo. I. c. 22, the 
 words "set fire" are used, and Mr. East 
 observes, that he is not aware of any deci- 
 sion which has put a larger construction 
 on those words than prevails by the rule 
 of the common law. 2 East P. C. 1020. 
 And he afterwards remarks, that the 
 actual burning at common law, and the 
 "setting fire" under the statute, in effect 
 mean the same thing. 2 East P. C. 1038. 
 The words "set fire" are used in all the 
 subsequent statutes, so that this passage 
 and the following decisions are still ap- 
 plicable. 
 
 The crime of arson is consummated 
 by the burning of any, the smallest part 
 of the house, and it is burned within the 
 common-law definition of the offence, 
 when it is charred, that is, when the 
 wood is reduced to coal, and its identity 
 changed, but not when merely scorched 
 or discolored by heat. State v. Hall, 93 
 
 760 
 
Iioof of the Setting "EitB. 
 
 AR.SON. 
 
 Property Set Tire to, 
 
 3. Property Set Fire To. — In order to constitute the felqnious of- 
 fence of arson at common law, the fire must burn the house of an- 
 other. The burning of a man's own house is no felony at common 
 law, but such burning in a town, or so near to other houses as to 
 create danger to them, is at common law a misdemeanor and by 
 statute a felony.^ 
 
 N. Car. 571. See People v. Haggerty, 
 46 Cal. 354. 
 
 A. was indicted for setting fire to an out- 
 house, commonly called a paper-mill. It 
 appeared that she had set fire to a large 
 quantity of paper, drying in a loft an- 
 nexed to the mill, but no part of the mill 
 itself was consumed. The judges held 
 that this was not a setting fire to the mill 
 within the statute. R. v. Taylor, 2 East 
 P. C. 1020; I Leach, 49. 
 
 So on a. charge of arson, it appeared 
 that a small fagot was set on fire on the 
 boarded floor of a room, and the fagot 
 was nearly cohsumed ; the boards of the 
 floor were " scorched black, but not 
 burned," and no part of the wood of the 
 floor was consumed. Cresswell, J., said, 
 " R. V. Parker, 9 C. & P. 45, is the nearest 
 case to the present, but I think it is dis- 
 tinguishable. ... I have conferred with 
 my brother Patteson, and he concurs 
 with me in thinking, that as the wood of 
 the floor was scorched, but no part of it 
 consumed, the present indictment cannot 
 be supported. iWe thing that it is not es- 
 sential to this offence that the wood should 
 be in a blaze, because some species of 
 wood will burn and entirely consume 
 without blazing at all." R. v. Russell, 
 Car. & M. 541. 
 
 Where the prisoner was indicted under 
 > the 7 Will. IV. & I Vict. c. 89, s. 3, and it 
 was proved that the floor near the hearth 
 was scorched, and it was in fact charred 
 in a trifling way; that it had been at a red 
 heat, though not in a blaze; Parke, B., 
 held that the offence was complete. R. 
 V. Parker, 9 C. & P. 45. See People v. 
 Butler, ,16 Johns. (N. Y.)203; Com. v. Van 
 Schaack, 16 Mass. 105; State v. Mitchell, 
 5 Ired. L. (N. Car.) 350. 
 
 To constitute a setting on fire, it is not 
 necessary that any flame should be visi- 
 ble. R. V. Stallion, i Moo. C. C. 398. 
 
 The ruins of a house after a fire do 
 not constitute a building. R. v. Labadie, 
 32 Up. Can. Q. B. 429; s. c, i Green's 
 Cr. R. 204. 
 
 Cotton stored in a warehouse was set 
 on fire, but the fire was extinguished be- 
 fore any part of the building was burned. 
 Held, not arson. Graham v. State, 40 
 Ala. 659. 
 
 The house need not be directly set on 
 fire ; if the fire is placed in any way in 
 
 connection with the house so that it will 
 ignite, the crime is committed. State v. 
 Dennin, 32 Vt. 158; R. v. Cooper, 5 C. 
 
 & P. 535. 
 
 1, I Hale P. C. 568; 2 East P. C. 
 1027; People V. Van Blarcum, 2 Johns. 
 (N. Y.) 105; Shepherd v. People, 19 N. 
 Y. 537; State v. Hannett, 54 Vt. 83; 
 State V. Hurd, 51 N. H. 176; State w, 
 Lyon, 12 Conn. 487; Bloss v. Tobey, 2 
 Pick. (Mass.) 320; Com. v. Tucker, no 
 Mass. 403; Com. v. Erskine, 8 Gratt. 
 (Va.) 624; Gage v. Shelton, 3 Rich. (S. 
 Car.) 242; Sullivan v. State, 5 S. & P. 
 (Ala.) 175; Roberts v. State, 7 Coldw. 
 (Tenn.), 359; McDonald v. People, 47 
 111. 533; R. V. Bryans, 12 Up. Can. C. 
 P. 163; 2 East P. C. 1030, 1031. See 
 Woodford v. People, 62 N. Y.' 117; Peo- 
 ple V. Hennessey, 21 How. Pr. (N. Y.) 
 
 239- 
 
 A wife who burns her husband's house 
 is not guilty of arson. R. v. March, R. 
 & M. C. C. 182. 
 
 A house owned by a wife but occupied 
 jointly by herself and husband, is his 
 house as regards his burning it. Snyder 
 ■V. People, 26 Mich. 106; s. <,., 12 Am. 
 Rep. 303. 
 
 One entitled to dower only out of a 
 house which was leased to another, may 
 commit arson by burning it. R. v, Har- 
 ris. 2 East P. C. 1023.- 
 
 It was determined that a widow entitled 
 to dower, but not having it assigned, 
 from a house, the equity of redemption of 
 which had descended from her husband to 
 his eldest son, for whose benefit she had 
 let it and received the rent, was guilty of 
 arson, by burning it while in the posses- 
 sion of her tenant. Harris's Case, Fost. 
 
 "3- 
 
 A servant is included in the term 
 owner where his master procures him to 
 do the burning. State v. Haynes, 66 Me. 
 307; s. c, 22 Am. Rep. 569. 
 
 An indictment for burning the dwelling- 
 house of another is not sustained by 
 proof tjjat the defendant burned the house 
 by the owner's procurement. Com. v. 
 Makely, 131 ' Mass. 421. See State w. 
 Haynes, 66 Me. 307; s. c, 2 Am. Rep. 
 569. 
 
 If the owner burn his house while oc- 
 cupied by a tenant, it is arson. Com. v. 
 Erskine, 8 Gratt. (Va.) 624; Sullivan v. 
 
 761 
 
Property Set Fire to. 
 
 arson: 
 
 Property Set Fire to. 
 
 But it is a felony at common law if a man set fire to his own 
 house with intent to burn that of another, or under such circum- 
 
 State, 5 S. & P. (Ala.) 175; Snyder v. 
 People, 26 Mich. io5; s. c, 12 Am. Rep. 
 303. See People v. Van Blarcum, 2 
 Johns. (N. Y.) 105; Com. v. Dailey, no' 
 Mass. 503; State v. Lyon, 12 Conn. 487; 
 State V. Toole, 29 Conn. 342; s. c, 76 
 Am. Dec. 602; Ritchey v. State, 7 Blackf. 
 (Ind.) 168. 
 
 If a landlord, or reversioner, sets fire 
 to his own house, of which another is in 
 possession, under a lease from himself, 
 or from those whose estate he hath, it 
 ^shall be accounted arson ; for during the 
 lease the house is the property of the 
 tenant. Fost. 115; 4 Black. Com. 221. 
 
 A lessee is not guilty of felony in burn- 
 ing the premises occupied by him as 
 such. Snyder v. People, 26 Mich. 106; 
 s. c, 12 Am. Rep. 303; McNealw. Woods, 
 3 Blackf. (Ind.) 485; State v. Lyon, 12 
 Conn. 487; State v. Fish, 27 N. J. L. 
 323; State V. Sandy, 3 Ired. (N. Car.) 
 570. Compare People v. Simpson, 50 Cal. 
 304; People u. Henderson, i Park. Cr. 
 (N. Y.)56o. 
 
 It was decided that a person in posses- 
 sion of a, copyhold dwelling-house could 
 not be guilty of arson by burning it, al- 
 though he had a long time before sur- 
 rendered it into the hands of the lord of 
 the manor, to the use of another person, 
 his heirs, and assigns, for securing the 
 payment of money borrowed; for it was 
 considered that, while the tenant confin- 
 ed in possession, it was his own house. 
 Spalding's Case, i Leach, 218. 
 
 Upon the same principle it was decided 
 that a tenant in .possession under an 
 agreement for a lease for three years from 
 a person who held under a building lease, 
 was not guilty of arson by burning the 
 house. Breeme's Case, i Leach, 220; 2 
 East P. C. c. 21, § 6, p. 1026. 
 
 And this was recognized in Pedley's 
 Case, I Leach, 242, where Lord Mansfield 
 said that Holmes's Case, Cro. Car. 376, 
 was confirmed to be good law, though he 
 very much lamented that the law was so 
 settled; and the bias, of his mind was in 
 favor of Mr. J. Foster's opinion in Har- 
 ris's Case, Fost, 115. In a case which oc- 
 curred shortly afterwards, Lord Mansfield 
 said that "it was certainly true that it 
 could be no felony in the defendant to 
 burn a house of which he was in posses- 
 sion." Scofield's Case, Cald. 397; 2 East 
 P. C. t. 21, § 7, p. 1028. 
 
 It matters not that but a part of the 
 house was burned; it was a setting fire to 
 the whole, and to the part occupied by 
 another tenant, as well as tenanted by the 
 
 prisoner, even though no portion of the 
 rooms occupied by such other tenant were 
 burned. Levy v. People, 80 N. Y. 327. 
 
 In Louisiana a party is guilty of arson 
 who burns his own house. State v. Elder, 
 21 La. Ann. 157. See also Tuller w. State, 
 8 Tex. App. 501; Shepherd v. People, 19 
 N. Y. 537. 
 
 It should be observed, however, that a 
 mere residence in a house, without any 
 interest therein, will not prevent it from 
 being considered as the house of another. 
 As where the prisoner was a poor man, 
 maintained by a parish, and had, some 
 time before the commission of the crime, 
 been put by the parish officers to live in 
 the house which lie was charged with 
 burning, and was resident therein with 
 his family at the time of the fact being 
 committed, having the sole possession 
 and occupation of it, but without pay- 
 ment of any rent; all the judges held that 
 it could not be considered as his house, 
 and that he was properly convicted of the 
 arson. Gowan's Case, 2 East P. C. c. 
 21, § 6, p. 1027. 
 
 Communicating Fires. — An information 
 for burning a dwelling-house by setting 
 fire to another building whereby the 
 dwelling is burned, should set forth the 
 tiring of the one building, and that by 
 means of the burning of such building the 
 particular dwelling-house was burned. 
 People V. Fairchild, 48 Mich. 31. 
 
 The accused set fire to a storehouse 
 with intent that the fire should spread to 
 a dwelling-house. Held guilty of arson. 
 Grimes v. State, 63 Ala. 166. 
 
 The malicious and wilful burning ef- 
 fected need not correspond with the pre- 
 cise intent or design of the party. 2 Russ. 
 on Cr. (gth Am. Ed., 1025. 
 
 If A have a malicious intent to burn 
 the house of B, and in setting fire to it 
 burn the house of C also, or if the house 
 of B escape by some accident, and the fire 
 take in the house of C and burn it, this 
 shall be said in law to be the malicious 
 and wilful burning of the house of C, 
 though A did not intend to burn that 
 house. I Hale, 569; i Hawk. P. C. v.. 
 
 39. § ig- 
 
 And accordingly it has been said that 
 if one man command another to burn 
 the house of J. S., and he do so, and the 
 fire thereof burn another house, the com- 
 mander is accessory to the burning such 
 other house. Plowd. 475; 2 East P. C. 
 c. 21, § 7, p. 1031. 
 
 So it has been held that if a person 
 set fire to a stack, the fire from which is 
 
 763 
 
Property Set Fire to. 
 
 ARSON. 
 
 Property Set Fire to. 
 
 stances that the house of another would in all probability be 
 burned. 1 Now, however, under the various State statutes the crime 
 
 of arson has a much wider 
 
 scope.' 
 
 likely to communicate to a barn, and it 
 does so, and the barn is burned, he is in 
 point of law indictable for setting fire to 
 the barn. So where the prisoners set fire 
 to a summer-house which was in a wood, 
 and some of the trees overhung it and 
 their branches were burnt by the fire, 
 which consumed the summer-house and 
 also burned some of the trees, it was held 
 that the prisoners might be convicted, 
 under the 7 & 8 Geo. 4, c. 30, § 17, of 
 setting fire to the wood. R. v. Price, 9 
 C. & P. 729. 
 
 And such malicious and wilful burning of 
 the house of another may be by the means 
 of setting fire to the party's own house; 
 and this though it should appear that the 
 primar3f intention of the party was only 
 to burn his own house. If in fact other 
 houses were burned, being adjoining, and 
 in such a situation as that the fire must 
 in all probability reach them, the intent 
 being unlawful and malicious, and the 
 consequences immediately and necessar- 
 ily following from the original act done, 
 the offence will be felony. 2 East P. C. 
 c. 21, § 8, p. 1031. 
 
 Thus where the defendant was indicted 
 for a misdemeanor, in- burning a house 
 in his own occupation, such house being 
 alleged to be contiguous and adjoining to 
 certfiin dwelling-houses of divers liege 
 subjects, etc. ; and the facts of the case, 
 as opened by the counsel for the prose- 
 cution, appeared to be that the defendant 
 set fire to his own house in order to de- 
 fraud an insurance office, and that in con- 
 sequence several houses of other persons 
 adjoining to his own were burned down; 
 Buller, J., said that if other persons'houses 
 were in fact burned, although the defen- 
 dant might only have set fire to his own, 
 yet under these circumstances the prison- 
 er was guilty, if at all, of felony (the 
 misdemeanor being merged), and could 
 not be convicted oh this indictment, and 
 therefore, he directed an acquittal. 2 
 East P. C. c. 21, § 8, p. 1031. 
 
 And in a case of a similar kind which 
 occurred about the same time, Grose, J. , 
 in passing sentence in the Court of King's 
 Bench, said that if, it had so happened 
 that any of the neighboring houses had 
 been set on fire in consequence of the 
 defendant's wilful and malicious act in 
 setting fire to his own house (which was 
 proved to have been done in order to 
 cheat the insurance office), it would clearly 
 have amounted to a capital felony. 2 
 East P. C. c. 21, § 7, p. 1031. 
 
 1. 2 East P. C. 1030, and the case of 
 "R. V. Probert, there cited; Luke v. State, 
 
 49 Ala. 30; State v. Dennin, 32 Vt. 158; 
 People V. Hennessy, 21 How. Pr. (N. 
 Y.)239. 
 
 2. By Statute. — By statute it is a crime 
 to burn a school-house. Wallace ». Young, 
 5 T. B. Mon. (Ky.) 156; State v. O'Brien, 
 2 Root (Conn.), 516; Jones v. Hunger- 
 ford, 4 Gill & J. (Md.) 402. 
 
 A corn-crib. Hester v. State, 17 Ga^ 
 130; State V. Millican, 15 La. Ann. 557; 
 Brown v. State, 52 Ala. 345. 
 
 A barn. Sampson v. Commonwealth,. 
 5 Watts & S. (Pa.) 385; State v. Smith, 
 28 Iowa, 565; State v. Shaw, 31 Me. 523; 
 People V. Taylor, 2 Mich. 250. 
 
 A stable. Dugle v. State, 100 Ind. 
 
 259- 
 
 A grist-mill. People v. Haynes, 55 
 Barb. (N. Y.) 450; Hudson v. State, 61 
 Ala. 333. 
 
 A church. Watt v. State, 61 Ga. 66. 
 
 A gin-house. McAdory v. State, 6a 
 Ala. 154. 
 
 A storehouse. Hall v. State, 3 Lea 
 (Tenn.), 552; Grimes v. State, 63 Ala. 
 166. 
 
 A barrel-house attached to a cooperage 
 establishment. Pike v. State, 8 Lea 
 (Tenn.), 577. 
 
 A cotton-house. Washington v. State, 
 68 Ala. 85. 
 
 A warehouse. Allen v. State, 10 Ohio 
 St. 287. 
 
 A school house. State i/. O'Brien, 2 
 Root (Conn.), 516; Jones v. Hungerford, 
 4 Gill & J. (Md.) 402; Wallace v. Young, 
 5T. B. Mon. (Ky.) 156; Hill z/. Common- 
 wealth, 98 Pa. St. 192. 
 
 A house 18 feet long and 15 wide, built 
 of logs notched up, the cracks covered 
 inside with rough boards, roofed with 
 rough boards, with a. good plank floor, 
 and a door about four feet high, contain- 
 ing at the time of the burning a quantity 
 of corn, peas, and oats, though the only 
 building on the farm used for stormg the 
 crop, is not a " barn " within the mean- 
 ing of statute. State v. Jim, 8 Jones L. 
 (N. Car.) 459. See State v. Laughlin, 8 
 Jones L. (N. Car.) 354; State v. Cherry, 
 63 N. Car. 493. 
 
 A saw-mill is not a building under a 
 statute prohibiting the burning of "any 
 building " other than a dwelling-house. 
 State V. Livermore, 44 N. H. 386. 
 
 An indictment that the prisoner " felo- 
 niously, wilfully, and maliciously did set 
 fire to and burn a certain barn of one J, 
 
 763 
 
Property Set Fire to. 
 
 ARSON. 
 
 Honae. 
 
 4. House. — The word " house " includes, as it seems, all such 
 buildings as would come within that description, upon an indict- 
 ment for arson at commori law. That includes such buildings as 
 burglary may be committed in at common law.* 
 
 there situate, contrary,'' etc., ^^/nf bad; it 
 neither charged an offence at common 
 law nor under the code; the description 
 of the property being too indefinite to 
 bring the offente within the crime of ar- 
 son, or within the statutory offence of 
 burning ' ' an out-house not parcel of any 
 dwelling-house." Gibson v. State, 54 
 Md. 447. 
 
 The indictment charged the respondent 
 with having set fire to and burned "a 
 
 certain barn of one" B "it being 
 
 an out-building adjoining the dwelling- 
 house of the said " B. The offence 
 charged was punishable by sec. 4126, R. 
 L., as amended by the act of 1882, No. 
 84; the offence proved was punishable by 
 sec. 4128. R. L. Both sections are to 
 prevent the unlawful burning of build- 
 ings: the former to protect the dwelling- 
 house; the latter, every building; by one 
 section the offender could be imprisoned 
 for life; by the other, not more than ten 
 years. Held, that a conviction under the 
 indictment can be had for the lesser of- 
 fence. State V. Thornton, 56 Vt. 35. 
 
 Where an affidavit charging arson de- 
 scribes the property destroyed as " a cer- 
 tain frame building, commonly called a 
 stable," it sufficiently indicates tlie pur- 
 pose for which such building is, or is in- 
 tended to be, used. Dugle v. State, ipo 
 Ind. 259. 
 
 Sec. 4126, Vermont R. L., prescribes 
 the penalty for burning a dwelling-house 
 or its out buildings; sec. 4128 prescribes a 
 less severe penalty for burning various 
 other buildings specially named, "or other 
 house or building of another not consti- 
 tuting a dwelling-house or its out-build- 
 ings;" the indictment charged the re- 
 spondent with burning a " certain build- 
 ing commonly known and called a sugar- 
 house," but without averment that the 
 " sugar-house " did not constitute a 
 dwelling-house or its out-buildings. The 
 term "sugar-house" is not used in sec. 
 4128. Held, that the case does not come 
 within the rule that a proviso or excep- 
 tion in a statute must be negatived when 
 descriptive of the offence; and that the 
 indictment is sufficient. State v. Ambler, 
 56 Vt. 672. See Com. v. Squires,,! Mete. 
 (Mass.) 258; Devoe SI. Commonwealth, 3 
 Mete. (Mass.) 316; Larned v. Common- 
 wealth, 12 Mete. (Mass.) 240; Com. v. 
 Hamilton, 15 Gray (Mass.), 480; Com. v. 
 Reynolds, 122 Mass. 454. 
 
 The prisoner set fire to a quantity of 
 straw placed . in a lorry and left for the 
 night in the yard of an inn on the way to 
 market. Held, that upon these facts a con- 
 viction on an indictment charging him 
 with setting fire to a stack of straw could 
 not be sustained. R. v. Satchwell, 12 
 Cox C. C. 449; s. c, L. R. 2 C. C. R. 
 21. 
 
 1. A building intended for and construct- 
 ed as a dwelling-house, but which had not 
 been completed or inhabited, and in which 
 the owner had deposited straw and agri- 
 cultural implements, was held not to be 
 a house, out-house, or barn, within the 
 9 Geo. I. u. 22. It was said, that it was 
 not a house in which burglary or arson 
 could be committed; that it was a house 
 intended for residence, but not inhabited, 
 and therefore not a dwelling-house, 
 though intended to be one ; that it was 
 not an out-house, because not parcel of a 
 dwelling-house; and that it was not a 
 barn within the meaning of that word as 
 used in the statute. Elsmore v. Inhab. 
 Hundred of St. Briavells, 8 B. & C. 
 461. 
 
 So also Lush, J., held that an unfin- 
 ished structure, intended to be used as a 
 dwelling-house when finished, was not a 
 " house;" but he seemed to be doubtful 
 whether it could be properly described as 
 a "building" under section 6. ,R. v. 
 Edgell, II Cox C. C. 132. 
 
 But where the wall and roof a structure 
 and part of the flooring were finished 
 and the internal walls prepared for plas- 
 tering, it was held to be a "building" 
 within section 6. R. v. Manning, L. R. 
 I C. C. R. 338; 41 L. J. M. C. II. 
 
 The ruins of a house after a fire do not 
 constitute a building. R. v. Labadie, 32 
 Up. Can. Q. B. 429; s. c, i Green's Cr. 
 R. 204. 
 
 Nor does a saw-mill. State v. Liver- 
 more, 44 N. H. 386. 
 
 Apartments. — Where a building is 
 leased to different persons in distinct 
 apartments, each apartment is the dwell- 
 ing-house of the lessee. Stedman v. 
 Crane, 11 Mete. (Mass.) 295; Mason v. 
 People, 26 N. Y. 200. 
 
 The-indictment charged the prisoner as 
 accessory to the crime of arson in the 
 first degree; it charged that the fire was 
 set by the principals in the night-time, 
 and burned the dwelling-house of K., in 
 which he then was. It appeared that the 
 
 764 
 
House. 
 
 auson: 
 
 Out-buildings. 
 
 5. Out-buildings. — Include not only the very mansion-house, 
 but all out-houses. An out-house is one that belongs to a dwell- 
 ing-house and is in some respects parcel of the same, and situated 
 within the curtilage. ^ 
 
 building was a five-story tenement-house, 
 having a common entrance in front and 
 in the rear. The front entrance opened 
 into a hallway, used in common, and the 
 apartments in the several floors opened 
 into a common hall. The prisoner, with 
 his wife, occupied three rooms; K., with 
 his family, occupied three adjoiiiingrooms; 
 there was no direct communicaiion be- 
 tween the rooms of K. and those occu- 
 pied by the prisoner; the fire was set in 
 the prisoner's rooms, and burned por- 
 tions of them. Held, that the indictment 
 was well drawn; that the building was a 
 dwelling-house, and was the dwelling- 
 house of K. within the meaning of the 
 statute defining arson in the first degree. 
 Levy V. People, 80 N. Y. 327. See Com. 
 V. BuUman, 118 Mass. 456; s. c , ig Am. 
 Rep. 469; State v. Garity, 46 N. H. 61; 
 Shepherd v. People, 19 N. Y. 537; Dale 
 V. State, 27 Ala. 31; Ullman v. State, i 
 Tex. App. 220; s. c, 27 Am. Rep. 85. 
 
 What is not a House. — Where the upper 
 and lower stories of a building are re- 
 spectively occupied by different tenants 
 as a dwelling and as a store, and there is 
 no mode of interior communication, the 
 dwelling is not parcel of the store so that 
 if burned by setting fire to the stpre the 
 offence can be punished as if it were a 
 burning of the dwelling. People w. Fair- 
 child, 48 Mich. 31. See State v. Toole, 
 2g Conn. 342; s. c, 76 Am. Dec. 602; 
 Com. V. Wade, 17 Pick. (Mass.) 395; 
 State V. ^ennery, 9 Iowa, 436; Rex v. 
 Egginton, 2 B. & P. 508; Rex v. Gibson, 
 I Leach (4th Ed.). 357 ; Glandfield's 
 Case, 2 East P. C. 1034; People i^. Gates, 
 15 Wend. (N. Y.) 159; 2 Bishop Crim. 
 Pro. § 38; Bishop Statutory Crimes. §§ 
 280, 282, 283, 285, 287, and authorities 
 cited; 2 East P. C.|494, 508: Hale P. C. 
 557' 558; 4 Bl. Com. 225, 226. 
 
 A shed or cabin, though built of stone, 
 roofed, and with low fireplace and win- 
 dow, does not in a case of arson consti- 
 tute a house within the 7 Will. IV. and i 
 Vict. c. 89, s. 3, where the buildmg was 
 erected, not for habitation, but for work- 
 men to take their meals and dry their 
 clothes in, and had not been slept in with 
 permission of the owner. R. v. Eng- 
 land, I C. &K. 533. 
 
 1. State w. Roper, 88 N. Car. 656; Page 
 V. Commonwealth, 26 Gratt. (Va.) 943; 
 Com. V. Posey, 4 Call. (Va.) 109; s. c, 2 
 Am. Dec. 560. See State v. Shaw, 31 
 
 765 
 
 Me. 523; Com. v. Estabrook, 10 Pick. 
 (Mass.) 293; Quinn v. People, 71 N. Y. 
 561; s. c, 27 Am. Rep. 87; People v. 
 Parker, 4 Johns. (N. Y.) 424; State v. 
 Potts, 75 N. Car. 129; State v. Outlaw, 
 72 N. Car. 5g8; State v. Mordecai, 68 N. 
 Car, 207; State v. Ginns, I N. & McC. 
 (S. Car.) 583; Fisher v. State, 43 Ala. 17; 
 Armour v. State, 3 Humph. (Tenn.) 379; 
 Ratekin v. State, 26 Ohio St. 420 ; 
 Pitcher v. People,. 16 Mich. 142; People 
 V. Taylor, 2 Mich. 250. 
 
 The words "house or building" are 
 synonymous. State v. Moore. 61 Mo. 
 276. 
 
 In the common and ordinary accepta- 
 tion of the term ' 'house" it includes every- 
 thing appurtenant and accessory to a 
 main building. Workman v. Insurance 
 Co., 2 La, 507; s. c, 22 Am. Dec. 141. 
 See State v. Shaw, 31 Me. 523; State v. 
 Stewart, 6 Conn. 47; People v. Taylor, 
 2 Mich. 250; Gage v. Shelton, 3 Rich. L. 
 (S. Car.) 242; State v. Laughlin, 8 Jones 
 L. (N. Car.) 354; State v. Jim, 8 Jones 
 L. (N. Car.) 459; State v. Cherry, 63 N. 
 Car. 493; State v. Fish, 27 N. J. L, 323. 
 
 A building where servants slept thirty- 
 six feet distant is part of the dwelling- 
 house. Pond V. People, 8 Mich. 150. 
 
 A jail is an inhabited dwelling-house. 
 People V. Cotteral, 18 Johns. (N. Y.) 
 115. Compare R. v. Connor, 2 Cox Cr. 
 Cas. 65. 
 
 Also a building used for night lodg- 
 ings. People V. Orcutt, i Park. Cr. (N. 
 Y.) 252. 
 
 If the building is so near to a dwelling- 
 house as to endanger it, it is arson. 
 Gage V. Shelton. 3 Rich. L. (S. Car.) 242. 
 
 And an indictment at common law 
 must charge that the barn contained hay 
 or grain, or is parcel of the dwelling- 
 house. State V. Porter, 90 N. Car. 719. 
 
 Whether the out-house burned be in a 
 city, town, or village, or not, does not 
 affect the legal character of the offence. 
 It affects the punishment only. Smith v. 
 State, 64 Ga. 605. 
 
 It is not necessary to state that the 
 barn burned was not a parcel of a dwell- 
 ing-house. Staeger v. Commonwealth, 
 103 Pa. St. 469. 
 
 A barrel-house attached to a cooperage 
 establishment is a ''house" within the 
 meaning of the Code, sec. 4668, for the 
 burning of which a person may be con- 
 victed. Pike V. State, 8 Lea (Tenn.), 577. 
 
Oat-buildings. 
 
 ARSON. 
 
 Out-buildings. ' 
 
 A barn constituting part of the neces- 
 sary buildings of a farm, and although not 
 adjoining nor connected with the dwell- 
 ing-house thereon, yet so situate that its 
 destruction by fire would endanger the 
 said dwelling-house, is a barn " belong- 
 ing" to the dwelling-house, and the set- 
 ting fire thereto consequently constitutes 
 the offence of felonious arson. Hill v. 
 Commonwealth, 98 Pa. St. ig2. 
 
 An indictment charging that the re- 
 spondent attempted to set fire to an out- 
 building adjoining a dwelling-house is 
 not supported by evidence that the build- 
 ing was near to but not in contact with 
 the dwelling-house. "Adjoining" is a 
 synonym for " adjacent to," "contigu- 
 ous," that is, in contact with. State »■. 
 Downs, 59 N. H. 320. 
 
 "Adjoining" means in actual contact 
 with. Peverelly v. People, 3 Park. Cr. 
 (N. Y.) 59- 
 
 It is not arson at common law to burn 
 an empty barn which is "not parcel of 
 any dwelling-house." Gibson v. State, 
 54 Md. 447; State v. Porter, 90 N. Car. 
 719. 
 
 Otherwise if the barn has hay and grain 
 in it. Sampson v. Commonwealth, 5 
 Watts & S. (Pa.) 385; Chapman v. Com- 
 monwealth, 5 Whart. (Pa.) 427; s. c, 34 
 Am. Dec. 565. 
 
 Nor a school house. Wallace v. Young, 
 5 T. B. Mon. (Ky.) 156. 
 
 Nor a stack of hay. Black v. State, 2 
 Md. 376; Com. w. Macomber, 3 Mass. 
 254. Nor a quantity of straw left for the 
 night in the yard of an inn. R. v. Satch- 
 well, 12 Cox. C. C. 449. 
 
 Indictment under Bat. Rev. ch. 32, § 
 93, for burning an outhouse used as a 
 storehouse, the proof being that it was an 
 old building located at a cross-roads and 
 occupied as a storehouse, but not en- 
 closed or used in any way as a dwelling- 
 house. Held, a fatal variance. This 
 statute makes the offence a misdemeanor. 
 State V. Roper, 88 N. Car. 656. 
 
 A dwelling-house is the apartment, 
 building, or cluster of buildings in which 
 a man with his family resides. He need 
 not so construct his habitation that all 
 the shelter he requires will be under one 
 roof; therefore the word "dwelling- 
 house" embraces in law the entire con- 
 gregation of buildings, main and auxil- 
 iary, used for abode. Bishop Stat. pr. 
 §278. 
 
 " Out-houses, such as kitchens, stables, 
 barns, etc., are indispensably necessary 
 to our comfort and convenience, and ren- 
 der it necessary that they should, even in 
 country places, be located contiguous to 
 the dwelling-house ; and in towns and 
 
 villages they must, in general, be so 
 located for the want of space; and when 
 an out-house thus necessary to a dwelling- 
 house is so situated that the burning of 
 it would probably endanger the dwelling- 
 house, whether it be under the same roof 
 or within the same common fence, all 
 the evils intended to be guarded against 
 are involved to the same extent as if the 
 dwelling-house itself liad been set on fire, 
 and for that reason the same protection 
 ought to be extended tothetn; and that 
 appears to me to be the only true rule. 
 If the building set on fife is one appro- 
 priated to ordinary domestic uses, and is 
 situated so near to the dwelling-house as 
 probably to endanger it, then it is arson 
 to burn it, and not otherwise." Gage v. 
 Shelton, 3 Rich. L. (S. Car.) 242. 
 
 Upon the meaning of the word "out- 
 house," in the repealed statute, 9 Geo. I. 
 V,. 22, the following case was decided: It 
 appeared that the prisoner (who was in- 
 dicted for setting fire to an outhouse) had 
 set fire to and burned part of a building of 
 the prosecutor, situated in the yard at 
 the back of his dwelling-house. The 
 building was four or five feet distant from 
 the house, but not joined to it. The yard 
 was enclosed on all sides, in one part by 
 the dwelling-house, in another by a wall, 
 and in a third by a railing, which sepa- 
 rated it from a field, and in the remain- 
 ing part by a hedge. The prosecutor 
 kept a public-house and was also a ilax- 
 dresser. The buildings in question con- 
 sisted of a stable and chamber over it, 
 used as a shop for the keeping and dress- 
 ing of flax. It was objected that this 
 was part of the dwelling-hou'se, and not 
 an out-house ; but the prisoner having 
 been convicted, the judges were of opin- 
 ion that the verdict was right. It was 
 observed that though, for some purpose, 
 this might be part of the dwelling-house, 
 yet that in fact it was an out-house. R. 
 V. North, 2 East P. C. io2i. 
 
 The following case was decided upon 
 the words of the same statute : The pri- 
 soner was indicted in some counts for 
 setting fire to an out-house, in others to a 
 house. The premises burned consisted 
 of a school-room, which was situated, 
 very near to the house in which the pro- 
 secutor lived, being separated from it 
 only by a narrow passage about a yard 
 wide. The roof of the house, which was 
 of tile, reached over part of the roof of 
 th? school, which was thatched with 
 straw; and the school, with a garden and 
 other premises, together with a court 
 which surrounded the whole, were rented 
 of the parish by the prosecutor at a yearly 
 rent. There was a continued fence 
 
 766 
 
Out-buildings. 
 
 ARSON. 
 
 Out-buildings. 
 
 round the premises, and nobody but the 
 prosecutor or his family had a right to 
 come within it. It was objected for the 
 prisoner that the building was neither a 
 house nor an out-house within the repealed 
 statute, 9 Geo. I. c. 22; but the judges 
 were of opinion that it was correctly 
 described either as an out-house or part of 
 a dwelling-house, within the meaning of 
 the statute. R. v. Winter, Russ. & Ry. 
 295; 2 Russ. Cr. 911. 
 
 The following case, upon the construc- 
 tion of the same word, arose on an in- 
 dictment under the 7 & 8 Geo. IV. : The 
 place in question stood in an enclosed 
 field, a furlong from the dwelling-house, 
 and not in sight. It had been originally 
 divided into stalls, capable of holding 
 eight beasts, partly open and partly 
 thatched. Of late years it was boarded 
 all round, the stalls taken away and an 
 opening left for cattle to come in of their 
 own accord. There was neither window 
 nor door, and the opening was sixteen 
 feet wide, so that a wagon might be 
 drawn through it, under cover. The 
 back part of the roof was supported by 
 posts, to which the side boards were 
 nailed. Part of it internally was boarded 
 and locked up. There was no distinction 
 in the roof between the inclosed and the 
 uninciosed part, and the inhabitants and 
 owners usually called it the cow-stalls. 
 Park, J., did not consider this an out- 
 house within the statute, but reserved 
 the point for the opinion of the judges. 
 Six of the judges were of opinion that 
 this was an out-house within the statute; 
 but seven of their lordships being of a 
 contrary opinion, a pardon was recom- 
 mended. R. V. Ellison, i Moody C. C. 
 336. See also Hilles v. Inhalj. of Shrews- 
 bury, 3 East, 457 ; R. v. Woodward, i 
 Moody C. C. 325. 
 
 The prisoner was tried before Little- 
 dale, J., upon an indictment, one count 
 of which charged him with setting fire to 
 an out-house of W. D The prosecutor 
 was a laborer and poulterer, and had be- 
 tween two and three acres of land, and 
 kept three cows. The building in ques- 
 tion was in the prosecutor's farm-yard, 
 and was three or four poles distant from 
 the dwelling-house, from which it might 
 be seen. The prosecutor kept a cart in 
 it, which he used in his business of a 
 poulterer, atid also kept his cows in it at 
 night. There was a barn adjoining the 
 dwelling-house, then a gateway, and 
 then another range of buildings which did 
 not adjoin the dwelling-house or barn; 
 the first of which from the dwelling-house 
 was a pigsty, then another pigsty, then 
 a turkey-house, adjoining to which was 
 
 the building in question. The dwelling- 
 house and farm formed one side of the 
 farm-yard, and the three other sides were 
 formed by a fence inclosing these build- 
 ings. The building in question was 
 formed by six upright posts nearly seven 
 feet high, three in the front and three at 
 the back^ one post being at each corner, 
 and the other two in the middle of the 
 front and back, these posts supporting 
 the roof; there were pieces of wood laid 
 from one side to the other. Straw was 
 put upon these pieces of wood, l^id wide 
 at the bottom and drawn up to a ridge at 
 the top; the straw was packed up as 
 close as it could be packed; the pieces of 
 wood and straw made the roof. The 
 front of the building to the farm-yard 
 was entirely open between the posts, one 
 side of the building adjoining the turkey- 
 house which covered that side all the way 
 up to the roof, and that side was nailed 
 to the turkey-house. The back adjoined 
 a field and was a rail fence, the rails be- 
 ing six inches wide; these came four or 
 five feet from the ground, within two 
 feet of the roof, and this back formed 
 part of the fence before mentioned. The 
 side opposite the turkey-shed adjoined 
 the road, and was a pale fence, but not 
 quite up to the top. One of the witnesses 
 for the prosecution, a considerable far- 
 mer, said he should consider the building 
 an out-house. The prisoner was convict- 
 ed, and sentence of death passed upon 
 him, but execution was respited to take 
 the opinion of the judges. All the 
 judges present (except Tindal, C. J.) 
 thought the erection an out-house, and 
 that the conviction was right. R. w. Stal- 
 lion, I Moody C. C. 398. 
 
 The prisoner was charged in one count 
 with setting fire to an out-house, and in 
 another with setting fire to a statale; the 
 place burned had been an oven to bake 
 bricks, and the prosecutor had made a 
 doorway (with a door) into it, and had 
 put boards and turf over the vent-hole at 
 the top. Two poles had been fixed across 
 it at about half its height, on which 
 boards had been laid so as to make a loft 
 floor. In this place the prosecutor kept 
 a cow; and adjoining to it, but not under 
 the same roof, was a lean-to, in which a 
 person named Cope kept a horse; but 
 this latter building was not injured by 
 the fire. The building was about a hun- 
 dred yards from any dwelling-house, and 
 the owner of the nearest dwelling-house 
 had no interest in it, and no dwelling- 
 house or farm-yard of the prosecutor was 
 near it, and there was no wall to connect 
 it with any dwelling-house. It was con- 
 tended for the prisoner that this building 
 
 767 
 
Out-buildings, 
 
 ARSON. 
 
 Curtilage. 
 
 6. Curtilage — Is the yard, court-yard, or piece of ground lying 
 near to a dwelling-house and included within the same fence. ^ 
 
 was neither a stable nor an out-house. The 
 terna "out-house" had, both at common 
 la\* and under the repealed statutes, been 
 held to apply to those buildings only 
 which were within the curtilage, and 
 in which, till the 7 and 8 Geo. IV., c. 2g, a 
 burglary might be committed, and the 
 rule being that where any term which 
 has obtained a precise and definite mean- 
 ing at common law or in a statute, it will 
 be presumed to have the same meaning 
 there; it must be taken that the word "out- 
 house "was used in the 7 and 8 Geo. IV., 
 u. 30, in the same sense as it had at com- 
 mon law and under the former statutes; 
 and unless such a construction were put 
 upon that \yord, the words "stable, 
 coach-house," etc., were useless. Taun- 
 ton, J.: "I am clearly of opinion that 
 this is not a case within the act of Par- 
 liament. It is true that. the word 'out- 
 house ' occurs in the act of Parliament, 
 but I apprehend that it has been settled 
 from ancient times thai an out-house 
 must bethkt which belongs to a dwelling- 
 house, and is in some respect parcel of 
 such dwelling-house. This building is 
 not parcel of any dwelling-house, , and 
 does hot appear to be connected in any 
 way, either with the premises of Mr. 
 Sparrow, or of the prosecutor. It had 
 been a brick-kiln, and the prosecutor 
 kept his cow there afterwards. There is no 
 such word as " cow-house" in the statute. 
 The only word likely to be applicable in 
 this case is the word out-house; and this 
 building being wholly unconnected with 
 the dwelling-house, it is not included in 
 the legal definition of out-house. It is also 
 not a stable; indeed, I do not see thai it 
 could be much more properly called a 
 stable than it could be called a coach- 
 house." R. V. Haughton, 5 C. & P. 555. 
 The prisoner was convicted before Mr. 
 Justice Patteson at the Bedfordshire 
 Spring Assizes, 1844, for feloniously set- 
 ting fire to an out house of B. The build- 
 ing set fire to was a pigsty, that shut up 
 at the top, with boarded sides, having 
 three doors opening into a yard in the 
 possession of the prosecutor; the back of 
 the pigsty formed part 'of the fence be- 
 tween the prosecutor's and the adjoining 
 property. The state of the premises was 
 this: first, the prosecutor's house front- 
 ing the public road, with a back-door op- 
 ening into the yard; then a paled fence 
 about two feet; then a cottage; then a 
 barn attached to it; the cottage and barn 
 were let by the prosecutor to a tenant; 
 they opened to the road, and neither of 
 
 them had any door or opening into the 
 yard. Next to the cottage and barn was 
 a stable; then a barn; then the pigsty, 
 all in the possession of the prosecutor, 
 and opening into the yard. Next to the 
 pigsty was a paled fence, and then a 
 live hedge round to the house, in which 
 hedge were three gates opening into an 
 orchard and two fields. On the part of 
 the prisoner it was contended that this 
 pigsty was not an out-house Within the 
 repealed statute, 7 Will. IV. and i Vict. c. 
 89, s. 3. The above cases of Ellison, 
 Haughton, and Stallion were referred to; 
 as also the cases of Parrot, 6 C. & P. 
 402; Woodward, i Moodv C. C. 323; and 
 Newill, I Moody C. C.45'8. The learned 
 judge reserved the point for the opinion 
 of the judges; and the case was consid- 
 ered at a meeting of all the judges, ex- 
 cept Coleridge and Maule, JJ., in Easter 
 term, 1844, when their lordships were 
 unanimously of opinion that the convic- 
 tion was right. R. v. Jones, 2 Moody 
 C. C. 308. 
 
 Upon the construction of the statute 
 (9 Geo. I. c. 22), it has been held that a 
 common jail comes within the meaning of 
 the word " house." The entrance to the 
 prison was through the dwelling-house 
 of the jailer (separated from the prison 
 by a wall), and the prisoners were some- 
 times allowed to lie in it. All the judges 
 held that the dwelling-house was to be 
 considered as part of the prison, and the 
 whole prison was the house of the corpo- 
 ration to whom it belonged. One of the 
 counts laid it as the house of the corpo- 
 ration; another, of the jailer; and the 
 third, of ol person whom the . jailer suf- 
 fered to live in the "house." R. v. Donne- 
 van, 2 East P. C. 1020; 3 W. Bl. 682; I 
 Leach, 69. 
 
 But where a constable hired a cellar 
 (as a lock-up house) under a cottage, 
 and the cellar was independent of the 
 cottage in all respects, it was held that 
 the cellar was not properly described in 
 an indictment for arson either as the 
 dwelling-house of the constable, or as an 
 outhouse of the cottage. Anon. cor. 
 HuUock, B. I Lewin C. C. 8. 
 
 1. Burrill's Law Diet.; Page v. Com- 
 monwealth, 26 Gratt. (Va.) 943; Com: v. 
 Barney, 10 Cush. (Mass.) 480; State v. 
 Roper, 88 N. Car. 656; Coddington v. 
 Beebe, 31 N. J. L. 477; People v. Tay- 
 lor, 2 Mich. 250. 
 
 Curtilage. — A court-yard adjoining a 
 messuage. Sweet's Law Diet. 
 
 A piece of ground lying near and be- 
 
 768 
 
Sonse must be Completed— Occupied. AUSOJV. Possession — How to be Described, 
 
 7. House must be Completed — Occupied. — The house must be com- 
 pleted,^ and if it is a dwelling-house it must be occupied.** 
 
 8. Possession — How to be Described. — The house burned should 
 be described as being in the possession of the occupier,* i.e., the 
 
 longing to a dwelling-house, as a court, 
 yard, or the like. Brown's Law Diet. 
 
 The inclosed space immediately sur- 
 rounding a. dwelling-house, contained 
 within the same inclosure. Bouvier's 
 Law Diet. 
 
 A space necessary and convenient, and 
 "habitually used for the family purposes 
 ■and the carrying on of domestic employ- 
 ments. It includes the garden, if there 
 is one, and need not be separated from 
 •other lands by a fence. State v. Shaw, 
 31 Me. 523; Com. v. Barney, 10 Cush. 
 (Mass.) 478. 
 
 A barn on the other side of a highway, 
 •distant fifteen rods from the dwelling- 
 house, is not within the curtilage. Cur- 
 kindale v. People, 36 Mich. 309. 
 
 A barn eighty feet distant, situate upon 
 •a lane leading from the house, is within 
 the curtilage. People v. Taylor, 2 Mich. 
 ■250. 
 
 1. It is not a dwelling-house, which it 
 is arson to burn, where but a part of 
 the frame was raised, and the part 
 raised not entirely enclosed, and the stairs 
 not up. McGaray v. People, 45 N. Y. 
 J53- 
 
 Or where the house was not painted, 
 though so intended to be. and some of the 
 glass in an outer door had not been put 
 in, and it had not been occupied. State 
 zi. McGowan, 20 Conn. 245; s. c, 52 Am. 
 Dec. 336. 
 
 A building formerly used and occupied 
 as a carpenter-shop, but in the process 
 of being altered, adapted, and designed 
 to be converted and made into a dwelling- 
 house, and not yet finished, is not a 
 •dwelling-house the burning of which is 
 felonious. Mead v. Boston. 3 Cush. 
 (Mass.) 404. See State w. Wolfenberger, 
 20 Ind. 242. Compare Com. v. Squire, i 
 Mete. (Mass ) 258; R. v. Manning, i L. 
 R. C. C. 338. 
 
 2. A house from which the owner is 
 temporarily absent, and his household 
 effects remain, is occupied. Johnson v. 
 State, 48 Ga. 1 16. -See State v. Mc- 
 Gowan, 20 Conn. 245; State v. Warren, 
 33 Me. 30. 
 
 A house, as soon as built and fitted for 
 Tesidence, does not become a dwelling- 
 house till some person dwells in it. R. 
 V. Allison, 1 Cox Cr. Cas. 24. See. gen- 
 -eralljr, Woodford v. People, 62 N. Y. 
 117; MoGary v. People, 45 N. Y. 153; 
 Hooker v. Commonwealth, 13 Gratt. 
 
 (Va.) 763; Statq V. McGowan, 20 Conn. 
 245; State V. Wolfenberger, 20 Ind. 242; 
 State V. Warren. 33 Me. 36; Com. v, 
 Barney, 10 Cush. (Mass.) 478; Com. v. 
 Squire, i Mete. (Mass.) 258; State v. 
 Clark, 7 Jones L. (N. Car.) 167; Lacy v. 
 State, 15 Wis. 13; State v. Wolfenberger, 
 20 Ind. 242; Stallings v. State, 47 Ga. 572; 
 McLane v. State, 4 Ga. 342; Dick v. 
 State, 53 Miss. 384; Elsmore v. St. Bria- 
 vels, 8 B. & C. 461; R. v. Kimbrey, 6 
 Cox Cr. Cas. 464. 
 
 When persons are considered as being 
 in the house when set fire to. — A stable 
 which adjoined a dwelling-house was set 
 on fire; the flames communicated to the 
 dwelling-house, in which members of the 
 family had been sleeping; but it did not 
 appear whether the house took fire before 
 they left the house or after. Alderson, 
 B., in summing up the case to the jury, 
 directed them to say by their verdict, 
 should they find the prisoner guilty, 
 whether the house took fire before tlie 
 family were in the yard or after. If they 
 were of opinion that it was after the fam- 
 ily were in the yard, his lordship said that 
 he thought they ought to acquit the pris- 
 oner of the capital charge, as to sustain 
 that, in his opinion, it was necessary that 
 the parties named in the indictment 
 should be in the house at the very time 
 the fire was communicated to it. But his 
 lordship added that, the point being a new 
 one and of very great importance, he 
 should not take upon himself to decide it 
 there, but should reserve it for the deci- 
 sion of the judges. The prisoner was 
 acquitted of the entire charge. R. u. 
 Warren, i Cox C. C. 68. 
 
 In R. V. Fletcher, 2 C. & K. 215, Pat- 
 teson, J., held in a similar case that if 
 the fire caught the house after the inmates 
 had left it, the charge could not be sus- 
 tained. 
 
 3. People V. Fairchild, 48 Mich. 31; 
 Snyder v. People, 26 Mich. 106; People 
 V. Gates, 15 Wend. (N. Y.) 159; State v. 
 Lyon, 12 Conn. 487; State v. Toole, 2g 
 Conn. 342; s. c, 76 Am. Dec. 602; State 
 V. Tennery, 9 Iowa, 436; State v. Fish, 
 27 N. J. L. 323; Com. t/. Wade, 17 Pick. 
 (Mass.) 39s; Davis v. State. 52 Ala. 345; 
 Young z/.Commonwealth, 12 Bush (Ky.), 
 243; Com. V. Erskine, 8 Gratt. (Va.)6a4. 
 See Woodford v. People, 62 N. Y. 117; 
 State V. Sandy, 3 Ired. L. (N. Car.) 573; 
 Graham v. State, 40 Ala. 659; Com. v. 
 
 I C. of L.— 50 
 
 769 
 
Fossession. 
 
 ARSON. 
 
 How to be Described. 
 
 Hamilton, 15 Gray (Mass.), 480; Carter 
 V. State, 20 Wis. 647. 
 
 It is not even necessary to name the 
 person occupying the house. State v. 
 Aguila, 14 Mo. 130; State v. Hayes, 78 
 Mo. 307. 
 
 If one be indicted for burning the 
 dwelling-house of another, it is sufficient 
 if it be, in fact, the dwelling-house of 
 such person. The court will not inquire 
 into the tenure or interest which such 
 person has in the house burned. It is 
 enough that it was his actual dwelling 
 at the time. People v. Van Blarcum, 2 
 Johns. (N. Y.) 105. 
 
 Arson is an offence against the habi- 
 tation, and affects possession rather than 
 property, and an information therefor is 
 sufficiently exact if it describes the 
 dwelling-house as that of the occupant. 
 People V. Fairchild, 48 Mich. 31. See 
 State V. Toole, 29 Conn. 342; s. c, 76 
 Am. Dec. 602; Snyder v. People, 26 
 Mich. 106. 
 
 Where a tenant burns a house of 
 which he is in possession, the landlord 
 can be named as the owner. People u. 
 Simpson, 50 Cal. 304. 
 
 A description as the building of the 
 owner is sufiBcient, though the building 
 may have been held under lease by a 
 tenant. People v. Fisher, 51 Cal. 319; 
 Harvey v. State, 67 Ga. 639; People v. 
 Van Blarcum, 2 Johns. (N. Y.) 105. Com- 
 pare People V. Gates, 15 Wend. (N. Y.) 
 159; Com. ' V. Wade, 17 Pick. (Mass.) 
 
 395- 
 
 Property in B. with dower-right in A. 
 — information rightly laid property in A. 
 and B. People -o. Eaton, 26 N. W. 
 Repr. (Mich.) 702. 
 
 At Common Law. — It is material in an 
 indictment at common law that the own- 
 ership of the house should be correctly 
 stated so as to show it to be the house 
 of another. And stating that the pris- 
 oner set fire to a house at, etc., without 
 stating whose house it was, or alleging 
 anything to excuse that statement, will 
 not be sufficient. 2 Russ. on Cr. (9th 
 Am. Ed.) 1046. 
 
 An indictment charged that the pris- 
 oner feloniously set fire to a house sit- 
 uated in the parish of E., and it was 
 holden to be bad. Rickman's Case, 2 
 East P. C. c. 21, ^s. II, p. 1034, MS. Bay- 
 ley, J. 
 
 The facts were that the house be- 
 longed to a parish, and the parish per- 
 mitted a person to live in it who was 
 merely a servant of the parish, and it was 
 wholly unknown who were the trustees, 
 or in whom the legal estate was vested; 
 and it appears to have been holden by 
 
 the judges that such house might have 
 been laid to be the property of the over- 
 seer or of persons unknown. 2 East P. 
 
 C. c. 21, s. 11, p. 1034, MS. Bayley, J. 
 In an indictment upon the 24 & 25 
 
 Vict. c. 97, it is, as we have seen, by the 
 words of the statute, sufficient to show 
 the house, etc., to be in the possession of 
 the offender, or in the possession of any 
 other person. 
 
 With respect to the nature of the 
 possession, it appears from a recent case 
 that a house, in part of which a man 
 lives, and other parts of which he lets to 
 lodgers, may be described as his house, 
 though he has taken the benefit, of the 
 Insolvent Debtor's Act, and executed an 
 assignment including the house, if the 
 assignee has not taken possession; or at 
 least no objection can be made if in 
 other counts it is stated as the house of 
 the assignee and also of the lodger whose 
 room was set fire to. The indictment 
 described the house first as F.'s, secondly 
 as D.'s, and thirdly as the prisoner's. 
 F. occupied part of it and let out the rest 
 in lodgings, the room set fire to being let 
 to the prisoner; five months before the 
 fire F. was discharged as an insolvent 
 debtor, and had previously executed an 
 assignment, including this house, to D. ; 
 
 D. never took possession. A case was 
 reserved upon the point whether the pos- 
 session of the house was rightly describ- 
 ed, and the judges held that, it was; for 
 the whole house was properly in the pos- 
 session of F., the possession by his ten- 
 ants being his possession; and if not, the 
 prisoner's' own room might be deemed 
 his house. Rex v. Ball, MS. Bayley, J., 
 and R. & M. C. C. R. 30. 
 
 It has been observed that it requires 
 great nicety in some cases to distinguish 
 the person who may be said to occupy 
 property sua jure. 2 East P. C. c. 21, s. 
 II, p. 1034. 
 
 And it will in some cases be advisable 
 to state the ownership or possession dif- 
 ferently, in different counts, in order to 
 obviate any objection on the ground of 
 variance. In a case where the indict- 
 ment laid the whole of the premises con- 
 sumed by the fire as in the sole occupa- 
 tion of one B., widow, it appeared that 
 the premises burned, consisting of out- 
 houses, were the property of the widow, 
 but were only made use of by her son 
 who lived with her after his father's death, 
 in the dwelling-house adjoining the out- 
 houses, and took upon him the sole man- 
 agement of the farm, with which these 
 out-houses were used, to the loss and pro- 
 fit of which he alone stood, though with- 
 out any particular agreement between 
 
 770 
 
PosBession — How Described. 
 
 ARSOir. 
 
 Malicious and Wilful, 
 
 person who is in the actual occupation, even though the posses- 
 sion be wrongful.'' 
 
 9. Malicious and Wilful. — The burning must also be malicious 
 and wilful ; otherwise it is only a trespass. No negligence or 
 mischance, therefore, will amount to such burning.* 
 
 him and his mother, and he paid all the 
 servants, and purchased all the stock; 
 but the legal property, both in the dwell- 
 ing-house and farm, was in the mother, 
 and she alone repaired the dwelling-housa 
 and the out-houses in question; and the 
 indictment in this form was holden to be 
 improper. And Heath, J., held that as 
 to the stable, pound, and hog-sties, which 
 the son alone used, the indictment must 
 lay them to be in his occupation; and as 
 to the brewhouse (another of the out- 
 houses burned), the mother and son both 
 occasionally paying for ingredients, the 
 beer being used in the family, to the ex- 
 penses of which the mother in part con- 
 tributed, though without any particular 
 agreement as to the proportion, that the 
 same should be laid as in their joint oc- 
 cupation. The prisoner was afterwards 
 convicted on a second indictment drawn 
 agreeably to this opinion, and containing 
 two counts; the first laying the occupa- 
 tion in the son alone, the other laying it 
 in the mother and son; and he was exe- 
 cuted. Glandfield's Case, 2 East P. C. 
 c. 21, s II. p. 1034. 
 
 Where a laborer in husbandry was per- 
 mitted to occupy a house as part of his 
 wages, and after being discharged from 
 his master's service, and told to quit the 
 house in a month, remained in it after 
 that period, it was held by the judges, 
 upon an indictment for setting fire to the 
 house, that it was rightly described as 
 being in the possession of the laborer. 
 R. V. Wallis. I Moody C. C. 344. 
 
 At the trial of an indictment for arson, 
 alleging that the building burned was 
 owned by the N. Company, and occupied 
 as a warehouse by the W. Company, a 
 registered copy of the deed to the N. 
 Company is admissible, and. together 
 with evidence that the N. Company had 
 orally leased the building to the W. Com- 
 pany, is sufficient proof of the ownership 
 and possession of the building alleged in 
 the indictment. Com. v. Preece, 140 
 Mass. 276. 
 
 Where an indictment for arson charged 
 that the house burned was the property 
 of and in the possession of a certain per- 
 son, and the proof showed the acftual 
 possession was held by the tenant of that 
 person, there was no material variance. 
 Harvey v. State, 67 Ga. 639. 
 
 If an indictment is nolle pros because 
 
 of a variation of proof of ownership from 
 the allegation, it is no bar to a secondl 
 indictment in which the ownership is- 
 properly laid. Martha v. State, 26 Ala. 
 72. 
 
 Public Buildings. — As regards public 
 buildings, no ownership need be alleged. 
 Mott V State, 29 Ark. 147; Lockeit v. 
 State, 63 Ala. 5 ; Stevens' Case, 4 Leigh. 
 (Va.) 683; State v. Roe, 12 Vt. 93. 
 
 1. Snyder v. People, 26 Mich. 106; 
 State V. Toole, 29 Conn. 344; s. t., 76 
 Am. Dec. 602; R. v. Wallis, i Moody C. 
 C. 344- 
 
 2. Jenkins v. State, 53 Ga. 33; s. c, 
 21 Am. Rep. 255; Jesse z/. State, 28 Miss. 
 100; McDonald v. People, 47 111. 533; 
 Kellenbeck v. State, 10 Md. 431; State vi 
 Mitchell, 5 Ired. L. (N. Car.) 350; 
 Thomas v. State, 41 Tex. 27; 3 Inst. 67; 
 4 Black. Com. 222. Compare Luke v. 
 State, 49 Ala. 30; s. c, 20 Am. Rep. 269 
 and note. 
 
 With respect to the indictment, it may 
 be observed that it is clearly necessary 
 in an indictment for arson at common 
 law to lay the offence to have been done 
 wilfully and maliciously; and though the 
 words " wilful and malicious" did not oc- 
 cur in the g Geo. I., c. 22, yet they seem 
 to have been considered as necessary in 
 an indictment upon that statute. 2 Russ. 
 on Cr. (9th Am. Ed.) 1046. 
 
 The indictment under the 7 and 8 Geo. 
 IV. , c. 30 must have charged the offence 
 to have been done " unlawfully and mali- 
 ciously;" and stating that it was done 
 " feloniously, voluntarily, and malicious- 
 ly" was not sufficient. The first count 
 alleged that the prisoners a certain barn 
 " feloniously, voluntarily, and malicious- 
 ly " did set fire to, etc. The second 
 count stated that the prisoners a certain 
 slack of straw "feloniously, voluntarily, 
 and maliciously " did set fire to, etc. 
 Upon reading the indictment, Parke, J,, 
 found that it did not pursue the words of 
 the statute, as it omitted the word "un. 
 lawfully," and he referred to i Hawk. P. 
 C. c. 25, s. 96, where it is laid down 
 "that where a statute uses the word 
 ' unlawfully ' in the description of an: 
 offence, it is certain that, an indictment 
 grounded on it must use the word illicit^ 
 or some other tantamount." The indict- 
 ment, therefore, seemed to the learned 
 judge to be bad; but he left the case to 
 
 771 
 
Ualicious and Wilfol, 
 
 ARSON. 
 
 Malicious and Wilful. 
 
 Ihe jury; and, upon a case reserved, the 
 judges held that the indictment ought to 
 have charged the act to have been done 
 ''unlawfully," and they thought it best 
 lo order a new indictment to be preferred 
 at the following assizes. R. v. Turner, 
 R. & M. C. C. R. 239. 
 
 Where the accused put matches among 
 loose cotton, with the expectation that 
 they would be ignited by the handling of 
 the cotton, held, arson. Overstreet v. 
 State, 46 Ala. 30. 
 
 If a person sets fire to a staci:, the fire 
 from which is likely to and which does 
 communicate to a barn, which is thereby 
 burned, the person is indictable for burn- 
 ing the barn. R. v. Cooper, 5 C. & P. 
 535. See McDade v. People. 2g Mich. 50. 
 
 The malicious and wilful burning 
 effected need not correspond with the 
 precise intent or design of the party. If 
 A have a malicious intent to burn the 
 house of B, and in setting fire to it burn 
 the house of C also, or if the house of B 
 escape by some accident and the fire 
 take in the house of C and burn it, this 
 shall be said in law to be the malicious 
 and wilful burning of the house of C, 
 though A did not intend to burn that 
 liouse. And accordingly it has beep said 
 that if one man command another to 
 burn the house of J. S., and he do so, 
 and the fire thereof burn another house, 
 the commander is accessory to the burn- 
 ing such other house. 2 Russell on 
 Crimes (gth Am. ed.), 1025. 
 
 If the act of burning be done under a 
 bona-fide belief in the existence of a right 
 to burn (as where a woman set fire to 
 some furze on a common), there is no 
 criminal offence. R. v. Twose, 14 Cox 
 
 C. C. 327- 
 
 It, must be proved that the act of 
 burning was both wilful and malicious, 
 otherwise it is only a trespass and not a 
 felony. I Hale P. C. 569. 
 
 Therefore if A shoot unlawfully at the 
 poultry or cattle of B, whereby he sets 
 the house of another on fire, it is not fel- 
 ony; for though the act he was doing was 
 unlawful, he had no intention to burn 
 the house, i Hale P. C. 569. 
 
 In this case, observes Mr. East, it 
 should seem to be understood that he did 
 not intend to steal the poultry, but mere- 
 ly to commit a trespass; for otherwise, 
 the first attempt being felonious, the 
 party must abide all the consequences. 2 
 East P. C. 1019. 
 
 But,where a sailor on board a ship en- 
 tered the hold for the purpose of stealing 
 the rum, and, the rum coming in contact 
 with a lighted match in his hand, the ship 
 was set on fire and destroyed, it was held 
 
 by the Court of Crown Cases Reserved 
 in Ireland that a conviction for arson 
 could not be upheld. Reg. v. Faulkner, 
 13 Cox C. C. R. Ir. 550. 
 
 It is at least very doubtful whether the 
 proposition laid down by Mr. East can 
 now be considered law. If A has a ma- 
 licious intent to burn the house of B and, 
 without intending it, burns that of C. it is 
 felony, i Hale P. C. 569; 2 East P. C. 
 1019. 
 
 So if A command B to burn the, house 
 of J. S., and he do so, and the fire burns 
 also another house, the person so com- 
 manding is accessory to the burning of 
 the latter house. Plowd. 475; 2 East P. 
 C. 1019. 
 
 So where the primary intention of the 
 offender is only to burn his own house 
 (which i3 no felony), yet if in fact other 
 houses are thereby burned, being adjoin- 
 ing, and in such a situation as that the 
 fire must in all probability reach them, 
 the intent being unlawful, and the conse- 
 quence immediately and necessarily flow- 
 ing from the original act done, it is felony. 
 2 East P. C. 1031. 
 
 On an indictment for wilfully setting 
 fire to a rick by firing a gun close to it, 
 evidence was allowed to be given by 
 Maule, J., with a view of showing that 
 the fire was not accidental, that on a pre- 
 vious occasion the prisoner was seen near 
 the rick with a gun in his hand, and that 
 the rick was then also on fire. R. v. 
 Dossett, 2 C. & K. 306. 
 
 Upon this point it was said by Tindal, 
 C. J., in his charge to the grand jury at 
 Bristol: " Where the statute directs that 
 to complete the offence it must have been 
 done with intent to injure or defraud some 
 person, there is no occasion that either 
 malice or ill-will should subsist against 
 the person whose property is destroyed. 
 It is a malicious act in contemplation of 
 law when a man wilfully does that which 
 is illegal and its necessary consequence 
 must injure his neighbor, and it is unne- 
 cessary to observe that the setting fire to 
 another's house, whether the owner be a 
 stranger to the prisoner or a person 
 against whom he had a former grudge, 
 must be equally injurious to him ; nor 
 will it be necessary to prove that the 
 house which forms the subject of the in- 
 dictment in any particular case was that 
 which was actually set on fire by the pris- 
 oner. It will be sufficient to constitute 
 the offence if he is shown to have felo- 
 niously set on fire another house, from 
 which the flames communicated to the 
 rest. No man can shelter himself from 
 punishment on the ground that the mis- 
 chief he committed was wider in its con. 
 
 772 
 
Malioious and Wilful. 
 
 arson: 
 
 Intent. 
 
 Generally, proof of the burning and the facts connected with it 
 is sufficient proof that it was done maliciously.^ 
 
 10. Intent. — The intent to injure or defraud is an important 
 ingredient in this offence ; but, like the proof of malice and wilful- 
 ness, it will generally be assumed.* 
 
 sequences than he originally intended." 
 5 Car. & P. 266, «. 
 
 But where two lads threw a lighted pa- 
 per into a post-office letter-box, forming 
 part of a house, whereby several letters 
 were burned, Williams, J., said that no 
 doubt if they intended the fire to do 
 its worst they would be guilty, but if they 
 only set fire to the letters, and it was con- 
 trary to their intention to burn the house, 
 they would not be guilty,- and would not 
 be guilty even if the house had been 
 burned. R. v. Batstone, 10 Cox, 20. 
 
 In R. V. Gray, 4 F. & F. 1102, evi- 
 dence of other claims on other insurance 
 companies in respect of fires, in other 
 houses previously occupied by the prison- 
 er, was admitted to show that the fire in 
 question was not the result of accident. 
 
 A woman indicted for arson, with in- 
 tent to defraud an insurance office, was 
 allowed to give evidence that she was in 
 easy circumstances, and so had no pecu- 
 niary motive for the crime. R. v. Grant, 
 4 F. & F. 322 (Pollock, C. B.). See also 
 R. V. Hari-is, 4 F. & F. 342. 
 
 1. People V. Haynes. 55 Barb. (N. Y.) 
 450; State w. Byrne, 45 Conn. 273; Brown 
 V. State, 52 Ala. 345; Brooks v. State, 
 51 Ga. 612; State v. Rohfrischt, 12 La. 
 Ann. 382; TuUis v. State, 41 Tex. 598; 
 State V. Watson, 63 Me. 128; Com. v. 
 McCarthy, 119 Mass. 354. 
 
 2. State V. Watson, 63 Me. 128; Com. 
 V. Francis, Thach. C. C. (Mass.) 240; 
 Com. V. Harney, 10 Mete. (Mass.) 422; 
 Com. V Goldstein, 114 Mass. 272; Com. 
 V. McCarthy, 119 Mass. 354; Hennessey 
 V. People, 21 How. Pr. (N. Y.)239; Shep- 
 herd V. People, 19 N. Y. 537: People v. 
 Henderson, i Park. Cr. C. (N. Y.) 560; 
 State V. England, 78 N. Car. 552; Brooks 
 V. State, 51 Ga. 612; Luke v. State, 49 
 Ala. 30: Brown v. State, 52 Ala. 345; 
 Jesse V. State, 28 Miss. 100; Tullis v. 
 State, 41 Tex. 598; People v. Shainwold, 
 51 Cal. 468. ' 
 
 In the trial of an indictment for arson, 
 evidence of threats by the accused to 
 burn the same building he is charged 
 with burning is admissible. State v. Fen- 
 lason, 8 Eastern Repr. (Me.) 644. 
 
 Where a man was indicted for setting 
 fire to a mill (43 Ceo. III. c. 58, s. I, re- 
 pealed), witli intent to injure the occupier 
 thereof, and it appeared from the prose- 
 cutor's evidence that the prisoner was an 
 
 inoffensive man, and never had any quar- 
 rel with the occupier, and that there was 
 no known motive for committing the act, 
 the judges held the conviction right, for 
 that a party who does an act wilfully nec- 
 essarily intends that which must be the 
 consequence of his act. R. v. Farring- 
 ton, Russ. & Ry. C. C. 207; R. j'. Philp, 
 I Moo. C. C. 263. 
 
 But it was held that on an indictment 
 under the repealed statute, 7 Will. IV. & 
 I Vict. c. 89, s. 2, for the capital offence 
 of setting fire to a dwelling-house,, some 
 person being therein, in which there was 
 no charge of any intent to injure or de- 
 fraud any person, the prisoner could not 
 be convicted of the transportable offence 
 of setting fire to the house, under the 3d 
 section of the statute, as an allegation of 
 intent to injure or defraud some person 
 was essential to an indictment under that 
 section. R. v. Paice, i C. & K. 73. 
 
 Where the prisoner was a person of 
 weak intellect, and the jury found that, 
 though the prisoner set fire to the build- 
 ing, as charged, they did not believe that 
 he was conscious that the effect of what 
 he did would be to injure any person, 
 Martin, B., ordered a verdict of not 
 guilty to be entered. R. v. Davies, i F. 
 & F. 69. 
 
 It has been held that a wife who set 
 fire to her husband's house was not guilty 
 of felony within the repealed statute, 7 
 & 8 Geo. IV. c. 30, s. 2. The indictment 
 described the prisoner as the wife of J. 
 Marsh, and charged her with setting fire 
 to a certain house of the said J. Marsh, 
 with intent to injure him, against the 
 statute. ' It appeared that the prisoner 
 and her husband had lived separate for 
 about two years, and previous to the act, 
 when she applied for the candle with 
 which, it was done, she said it was to set 
 her husband's house on fire, because she 
 wanted to burn him to death. On a case 
 reserved upon the question whether it 
 was an offence within the 7 & 8 Geo. IV. 
 c. 30, s. 2 (repealed), for a wife to set fire 
 to her husband's house for the purpose of 
 doing him a personal injury, the convic- 
 tion was held wrong, the learned judges 
 thinking that to cdnstitute the offence it 
 was essential that there should be an 
 intent to injure or defraud some third 
 person, not one identified with herself. 
 R. V. Marsh, i Moody C. C. 182. 
 
 773 
 
Intent. 
 
 ARSON. 
 
 Corpus Delicti. 
 
 11. Corpus Delicti. — The burning of the house, or whatever is 
 made arson by statute constitutes the corpus delicti.^ 
 
 Where the intent laid is to defraud 
 insurers, the insurance must be proved. 
 To prove this the policy must be pro- 
 duced, evidence of the books of an in- 
 surance company not being admissible, 
 unless notice has been given to produce 
 the policy, or the non-production of the 
 policy is accounted for. R. v. Doran, i 
 Esp. 126. 
 
 And it must be shown that the risk has 
 attached. It has been held that the part- 
 owner of a ship may be convicted of set- 
 ting fire to it with intent to injure and 
 defraud the other part-owners, although 
 he has insured the whole ship and prom- 
 ised that the other part-owners shall have 
 the benefit of the insurance. R. v. 
 Philp, I Moo. C. C. 262; R. V. Newill, I 
 Moo. C. C. 458. 
 
 A person may be convicted under the 
 7 Will. IV. & I Vict. c. 89, ss. 6 & II 
 (repealed), for setting fire to a vessel of 
 which he was at the time part owner. R. 
 •V. Wallace, Car. & M. 200. 
 
 The underwriters on a policy of goods 
 fraudulently made are within the statute. 
 R. -v. Wallace, 2 Moo. C. C. 200. 
 
 Where a count in an indictment under 
 the 7 & 8 Geo. IV. t. 30, s. 17 (repealed), 
 charged the prisoner with setting fire to 
 a certain stack of straw, but without 
 alleging any intent to injure, the judges 
 held tinat as that clause conlained no 
 words of intent, the count was good. R. 
 V. Newill, I Moo. C. C. 458. 
 
 Under an indictment for arson, where 
 the crime is alleged to have been com- 
 mitted for the purpose of defrauding an 
 insurance company which had issued a 
 policy of insurance upon the building 
 burned, it is competent for the State to 
 give in evidence a claim made by the 
 defendant for the property destroyed, and 
 to prove that he put a value upon it in 
 excess of its real worth, not for the pur- 
 pose of impeaching the character of the 
 accused, but as tending to show a motive 
 to commit crime. Stitz v. State, 104 
 Ind. 359. 
 
 In State v. Cohn. 9 Nev. 179, the ap- 
 pellant was charged with arson, and it 
 was held that evidenceof over-large in- 
 surance upon his goods was competent 
 " to show a possible or probable motive, 
 such motive being a. material link in the 
 chain of circumstances." The court said: 
 " Now. it is not a natural thing for a man 
 to fire his own premises: presumptively 
 appellant was innocent. What, then, is 
 the logical and natural course of human 
 
 thought at such a juncture ? Is it not to 
 inquire what motive, if any, existed which 
 could have influenced a sane person to do 
 such an act ? Such was the course pur- 
 sued by the prosecution; the motive was 
 sought, and by it claimed to be found in 
 the fact of an undue insurance — nqt only 
 a perfectly proper proceeding, but indeed 
 the only one open." The same principle 
 is declared in Com. v. Hudson, 97 Mass. 
 565, and in Shepherd v. People, ig N. Y. 
 537. In . this last case the court said; 
 " The prisoner's house had been burned 
 and he was charged, upon circumstantial 
 evidence, with having set it on fire. 
 Prima facie he had no motive for the 
 act, but a strong pecuniary one again^ 
 it. But if he had a contract of indemnity, 
 and especially if under it he might prob- 
 ably obtain more than the value of the 
 property, the case would be quite differ- 
 ent." 
 
 Mr. Bishop says: "Evidence that the 
 insurance was for more than the worth 
 of the building is pertinent, also that the 
 defendant attempted to procure payment 
 of what was thus excessive." , 2 Bishop 
 Crim. Proc. § 50. 
 
 The cases are in harmony with the 
 general rule which that author thus states: 
 " Hence proof of motive is never indis- 
 pensable to a conviction; but it is always 
 competent against the defendant." i 
 Bishop Crim. Proc. § 1107; Wills Circ. 
 Ev. 41; Goodwin v. State, 96 Ind. 550 
 
 Attempt, — Defendant having made 
 preparations for burning a building, left 
 his supposed accomplice at the building, 
 saying he would go and get some matches, 
 but did not return, and an hour or so 
 afterwards was arrested. Held, that the 
 offence was complete. State v. Hayes, 
 78 Mo. 307. 
 
 AccessoiieSi — The prisoner solicited K. 
 to set fire to a barn, and gave him mate- 
 rials for the purpose. Held, sufficient to 
 warrant conviction, though the prisoner 
 did not mean to be present. at the com- 
 mission of the offence, and K. never 
 intended to commit it. People v. Bush, 
 4 Hill (N. Y.), 133. See Mackesey v. 
 People, 6 Park. Cr. (N. Y.) 114. 
 
 If A counsels and encourages B to set 
 fire to a malt-house, and B attempts to 
 set it on fire, both may be jointly indicted 
 as principals, although A was not present 
 at the time of the attempt. R. v. Clay- 
 ton, I C. & K. 128. 
 
 1. Sam V. State. 33 Miss. 347; Phillips 
 V. State, 29 Ga. 108; 76 Ala. 42. 
 
 774 
 
Constructions. 
 
 ART— ARTICLE. 
 
 Constrnotions. 
 
 AET. — A principle put in practice and applied to some art, 
 machine, manufacture, or composition of matter.* 
 
 ARTICLE— ARTICLES. — Article, as defined by lexicographers, is 
 "a distinct portion or part ; a joint or a part or member; one of 
 various things," etc. It is a word of separation to individualize 
 some particular thing from the general thing or whole of which it 
 forms a part, as an article in an agreement, an article of faith, an 
 article of a newspaper, or an article of merchandise. It is derived 
 from the Greek, the original or radical word meaning to join or to 
 fit as a part, and it is only very recently that it has been applied 
 to denote such material or corporeal things as goods or physical 
 property, and then only in the sense of something that is separate 
 and individual in itself, as, salt is a necessary article, or, a ham- 
 mer is a useful article.* 
 
 1. In the Patent Acts. — The word 
 "art," as used in the Patent Acts, means 
 a useful art or a manufacture which is 
 'beneficial and which by the same law is 
 required to be described with exactness 
 in its mode of operation. Smith v. Down- 
 ing, I Fish Pat. Cas. 64. 
 
 But a mere process eo nomine is not 
 patentable, yet an art may require one or 
 more processes or machines in order to 
 produce a certain result. Corning et al. 
 V. Burden, 15 How. (U. S.) 267. E.g., 
 the art of telegraphy. Jacobs v. Baker, 
 7 Wall. (U. S.) 295. 
 
 To Use an Art. — These words signify 
 here, to use as a master or principal. 
 Clark V. Denton, i B. & Ad. 100. 
 
 2. Wetzell v. Dinsmore, 4 Daly (N. 
 
 Y.), 195. 
 
 Article Forwarded. — A transportation 
 company received a package containing 
 three cases of a particular drug separately 
 addressed to the plaintiffs, and then 
 -wrapped up in a proper cover in a single 
 package similarly addressed. The re- 
 ceipt or bill of lading contained a clause 
 that the holder should not demand more 
 than fifty dollars for any loss or damage 
 to the "article forwarded." But one of 
 the cases reached the plaintiffs. Held, 
 that "the article forwarded" was the 
 single package, and that plaintiffs were 
 not entitled to recover fifty dollars upon 
 each of the missing cases; but qucere 
 whether if the cases had contained differ- 
 ent kinds of drugs and the company had 
 had knowledge of that fact, the decision 
 would have been different. Wetzell k. 
 Dinsmore, 54 N. Y. 496, overruling 4 
 Daly (N. Y.). 195, cited above. 
 
 Any Article. — A printed notice given 
 by a carrier that he would not become 
 liable for baggage for an amount exceed- 
 ing one hundred dollars upon " any arti- 
 ■cle" was held to qualify his responsibil- 
 
 ity, not as to a trunk or piece of baggage 
 and its entire contents in gross, but as to 
 any article contained in the piece of bag- 
 gage, not exceeding one hundred dollars 
 for any single item. Hopkins v. West- 
 cott, 6 Blatch. (U. S.) 64. 
 
 Articles or Objects. — Under an act re- 
 quiring a certain statement to be made 
 in returns or lists of " income or articles 
 or objects charged with an internal tax," 
 it was held that the latter word included 
 gross receipts, while " articles" might " be 
 deemed to apply to enumerated goods in 
 use or on sale, or produced by manufac- 
 ture already specified in the law." Wells, 
 Fargo & Co. v. Shook, 8 Blatch. (U. S.> 
 257. 
 
 Any other Article or Thing. — An act 
 forbidding the ^conveyance into any 
 prison, with intent to facilitate the es- 
 cape of a prisoner, of any mask, dress, or 
 other disguise, or of "any other article 
 or thing" was held to include a crowbar. 
 The Queen v. Payne, L. R. i C. C.,R. 27. 
 
 But where the words of the statute 
 were "articles and effects," they were 
 held to be ejusdem generis with those 
 which went before and not to apply to a 
 "yacht." Inre Blake, i Jebb. 71. 
 
 Article or Part of an Article, in the Fac- 
 tory Acts Extension Act, 30 and 31 Vict. 
 c. 103, s. 3, does not include a "ship," 
 though it does an "iron plate," although 
 the same may be used in shipbuilding. 
 Palmer's Co. v. Claytor, L. R. 4 Q. B. 
 209 and 10 B. & S. 177. 
 
 Article of Manufacture, in an act passed 
 to protect designers against copyers of 
 their designs in respect of the application 
 thereof to ornamenting any "article of 
 manufacture," by complying with certain 
 provisions, was held to include pattern 
 pieces of paper hangings. " It is equally 
 an article of manufacture or an article 
 of trade whether it be manufactured and 
 
 775 
 
Constructions. 
 
 AR TICLE—AR TIFICER. 
 
 ConstructidBSk. 
 
 ARTIFICER.— in the Truck Act (i and 2 Wm. IV., c. 37) it is, 
 enacted in the interpretation clause " that in the meaning and for 
 the purposes of this act all workmen, laborers, and other persons, 
 in any manner engaged in the performance of any work, employ- 
 ment, or operation of what nature soever, in or about the several 
 trades and occupations aforesaid, shall be and be deemed • artifi- 
 cers.' " 1 
 
 sold as a pattern or for actual use." 
 Heywood v. Potter, i El. & Bl. 439. 
 
 Other Valuable Article, in a statute mak- 
 ing it a trespass to remove from the lands 
 of another any tree, stone, timber, or 
 "other valuable article," was held to in- 
 clude the removing of ice. State v. Pott- 
 meyer, 33 Ind. 402 and 5 Am. Rep. 224. 
 
 'Article of Food. — Rye-chop, which is 
 food for horses, does not come within an 
 act making it unlawful for any person to 
 buy up "any provision or article of food 
 coming to market." Botelor v. Corp. of 
 Washington. 2 Cranch C. C. (U. S.) 676. 
 
 Articles, Goods, or Things, in an act 
 making a railway company liable for loss 
 or injury to "any articles, goods, or 
 things" in the receiving, forwarding, or 
 delivering thereof occasioned by negli- 
 gence of the company or its servants, 
 held to include a passenger's luggage. 
 Cohen v. S. E. R. Co., L. R. 2 Ex. 
 Div. 253. 
 
 Articles of Gold and Silver Manufacture. 
 Gold and silver watches and watch-chains, 
 though usually worn about the person, 
 were held to come within this definition 
 in an act limiting an innkeeper's liability 
 on compliance with certain requirements. 
 Stewart v. Parsons, 24 Wise. 241. 
 
 Articles and Necessaries. — Under the 
 Bankruptcy Act money cannot be set 
 apart by the assignee to the bankrupt as 
 coming within the description of "other 
 articles and necessaries of such bank- 
 rupt" unless such money is the proceeds 
 of specific things which could be set apart 
 under this hpad, and a classification of 
 the goods sold as " dry and fancy goods" 
 was held insufficient. In re Welch, 5 
 Ben. (U. g.) 230. 
 
 All other Articles Ferishahle in their 
 own Nature in a policy of insurance 
 means "those articles not particularly 
 enumerated which are liable to perish of 
 themselves in the course of the voyage, 
 without any external injury." Astor v. 
 Union Ins. Co., 7 Cow. (N. Y.) 216. 
 But where "dried fish" were included 
 in the memorandum, the above expres- 
 sion was held not to include "pickled 
 fish" as expressio unius exclusio est alte- 
 rius. Baker v. Ludlow, 2 Johns. Gas. 
 (N. Y.) 289. 
 
 Articles of Comfort and Support for 
 which the wife's estate might become lia- 
 ble were held to include medicines and. 
 the professional services of a physician. 
 May V. Smith, 48 Ala, 483. 
 
 Articles of Glass. — Under the tariff act 
 of July 30, 1846, imposing certain duties, 
 on " manufactures, articles, vessels, and 
 wares of glass," all kinds of window- 
 glass were held to be included. Roose- 
 velt V. Maxwell, 3 Blatch. C. C. (U. S.) 
 
 391- 
 
 1. The term "artificers" in this act has. 
 been held to apply only to those who are 
 actually and personally employed to do- 
 the work, and not where the procuring 
 work to be done by the hands of others 
 comprehends the whole of what a man 
 contracts for, not even where the em- 
 ployee may do some portion of the work 
 himself. Ingram tj. Barnes, 7 E). & Bl. 
 134- 
 
 ' ■ If the contract is not for the labor, 
 but for the result or effect of the labor, 
 as for instance a contract for the re- 
 moval of a quantity of clay, that is not 
 within the act, because there the contract, 
 is not for the labor, but for that which 
 the labor is to accomplish." Sleeman v. 
 Barrett, 2 H. & C. 942. See to the same 
 effect Sharman v Sanders, 13 C. B. 166. 
 
 Artificer or Handicraftsman. — Skilled 
 men employed to plate a vessel agreeing 
 to serve subject' to rules, and to execute 
 the whole of the skilled and unskilled 
 labor requisite to complete the work, and 
 for this purpose to employ such assist- 
 ants as the employer deemed requisite, 
 were held to be "artificers and handi- 
 craftsmen" within the meaning of the 4 
 G. IV. c. 34, s. 3. Lawrence v. Todd, 
 14 C. B. (N. S.) 554- 
 
 And so a master-tailor employed to 
 make clothes as should be required, each 
 article to be paid for according to a fixed 
 price, and he himself to work for his em- 
 plover exclusively. Ex parte Gordon, 
 25 L. J. M. C. 12. 
 
 Artificer, Laborer. — A farmer is not 
 within a statute enacting that "no trades- 
 man, artificer, workman, laborer, or 
 other person whatsoever" should pursue 
 his ordinary calling on the Lord's Day^ 
 Reg. V. Cleworth, 4 B. & S. 927. 
 
 776 
 
Consti actions. 
 
 AS. 
 
 Constructions, 
 
 AS. — This word, which usually means like, of the same kind, 
 in the same manner, is used in a number of phrases.^ When 
 
 Merchant, Artificer. — "Only those who 
 traffic in the way of commerce by impor- 
 tation or exportation or carry on business 
 by way of emption, vendition, barter, 
 permutation, or exchange, and who make 
 it their hving to buy and sell by con- 
 tinued assiduity or frequent negotiation 
 in the mystery of merchandise are es- 
 teemed merchants. Those who buy 
 goods to reduce them by their own art 
 or industry into other forms and then 
 to sell them are artificers only." -Jac. L. 
 Diet., quoted in Lansdale v. Brashear, 3 
 T. B. Mon. (Ky.) 335- 
 
 1. As Aforesaid. — Where a testator 
 made a certain devise with limitations, 
 and then in a second clause made a devise 
 over, " as aforesaid," it was held that the 
 words "as aforesaid" drew down to the 
 second clause the limitations of the first, 
 and showed that the testator meant that 
 the devisees of the devise over should 
 take the same estate as they would have 
 done had the devise passed to them un- 
 der the limitations in the first clause. 
 Meredith v. Meredith, 10 East, 503. 
 
 So where an act (Stat. 12 and 11 Vict. 
 c. g2, § 3) prohibited the keeping or 
 using or acting in the management of 
 any place, for the purpose of fighting or 
 baiting, any bull, etc., and imposed a pen- 
 alty therefor, and then went on "and 
 every person who shall in any manner 
 encourage, aid, or assist at the fighting 
 or baiting of any bull, etc., as aforesaid, 
 shall forfeit and pay a penalty not ex- 
 ceeding £s for every such offence," it was 
 held that "as aforesaid" meant in a. 
 place so used as is mentioned before, 
 and that a person does not incur this lat- 
 ter penalty by aiding and assisting at 
 cock-fightirig in any place; but only if 
 the place be one so kept or used for the 
 purpose, as to subject the keeper of it to 
 the penalty imposed by the first clause 
 of the section. Clark v. Hague, 2 Ell. & 
 Ell. 281. 
 
 A trust in a will, in relation to devises 
 and bequests previously given and by the 
 words of the will restrained to property 
 "devised and bequeathed as aforesaid," 
 will not extend to different bequests sub- 
 sequently given by codicil, in lieu of 
 those given by the will. Roberts «/. 
 Wills. Spencer (N. }.), 591. 
 
 As Follows. — "As follows" is a suflS-' 
 cient averment of the tenor of a forged 
 receipt in an indictment. King v. Pow- 
 ell. 2 Wm. Blackstone, 787; s. c, I 
 Leach, 77. 
 
 The words "as follows (that is to say)" 
 do not bind a party to an exact recital. 
 King V. Hart, l Leach, 145; King v. May, 
 
 1 Leach, 192. 
 
 Ab For. — "As for" or "as touching'* 
 such worldly estate, etc., is one of the 
 usual introductory clauses with which 
 wills are begun. French v. Mcllhenny, 
 
 2 Binney (Pa.), 13; Campbell v. Carson, 
 12 S. & R. (Pa.) 54; Hall v. Goodwin, 
 Nott & McC. (S. C.) 383. 
 
 It usually indicates an intention to dis- 
 pose of the whole of the testator's estate. 
 Willis V. Bucher, 2 Binney (Pa.), 455. 
 See Caldwell v. Ferguson, 2 Yeates (Pa.), 
 380; Wyatt V. Sadler's Heirs, i Mun- 
 ford (Va.), 537; Wilce v. Wilce, 7 Bing- 
 ham, 664; Winchester v. Tilghman, r 
 Harris & McH. (Md.) 452; Brailsford v. 
 Havward, 2 Desauss. (S. C.) 18, 32;. 
 Clark V. Mikell. 3 Desauss. (S. C.) 168. 
 
 As the Crow Flies. — "The plain and 
 ordinary sense of these words is the 
 actual distance, and I think they ought to 
 be so understood, unless we can collect 
 from the context that they were meant to 
 be used in a different sense; and here the 
 context raises no such inference. The 
 phrase 'as the crow flies' is a popular 
 and picturesque expression to denote a 
 straight line, which I think is clearly the 
 proper mode of measuring the distance 
 from one given point to another." 
 Stokes c. Grissell, 14 C. B. 678. See 
 Mouflet V. Cole, L. R. 7 Ex. 70: s. c, L. 
 R. 8 Ex. 32; Reg. v. Saffron-Walden, 9 
 Q. B. 76; Lake v. Butler, 5 E. & B. at 
 page 99; s. c, 24 L. J. (Q. B.) 273; Jewel 
 ■V. Stead, 6 E. & B 350; s. c, 25 L. J. 
 (Q. B.) 294; Duignan v. Walker, Joh. 446; 
 s. c, 28 L. J. (Ch.) 867. 
 
 As Soon as Possible. — " As soon as pos- 
 sible" cannot mean instantly or directly, 
 for it might be impossible to do the act 
 instantly. Duncan v. Topham, 8 Man., 
 Or. & Scott, 229. See Palmer v. The St. 
 Paul F. & M. Ins. Co., 44 Wis. 201, 208; 
 Guild V. Hale, 15 Mass. 455. 
 
 The words "as soon after as practica- 
 ble" mean within a reasonable time. 
 Cammell v. Beaver Mut. Ins. Co., 39 U. 
 C. (Q. B.) I. See Parsons v. Queen Ins. 
 Co., 43 U. C. (Q. B.) 271; Atwood v. 
 Emery, i C. B. no; Peck v. Waters, 104 
 Mass. 345. 
 
 But this reasonable time must be con- 
 strued in relation to the contract. See 
 Hydrauhc Engineering Co. v. McHafEe, 
 where the plaintiffs, in July, 1877, con- 
 tracted with J. to make for him a ma- 
 
 777 
 
Constructions. 
 
 AS— ASSAULT. 
 
 Definition, 
 
 is equivalent to "it" or 
 
 the context seems to require it, "as" 
 " that." 1 
 
 ASCENDANT. See DESCENT. 
 
 ASPORTATION. See LARCENY. 
 
 ASSAULT— ASSAULT AND BATTEEY. (See also FALSE IM- 
 PRISONMENT ; Homicide ; Rape ; Self-defence ; Trespass.) 
 
 1. Definition. 
 
 2. Battery. 
 
 3. Contributory Negligence. 
 
 4. Conse7tt. 
 
 5. On Official Persons. 
 
 6. Intent. 
 
 7. Assault on Several. 
 
 8. Striking Distance. 
 
 9. Need not be Immediate. 
 
 10. Lawful Force. 
 
 11. By an Officer. 
 
 1 2. Lawful Chastisement. 
 
 13. Defence of Person or Property. 
 
 14. trespassers. 
 
 1 5. Defence of Other Persons. 
 
 16. Prevention of Unlawful Acts. 
 
 17. Husband and Wife. 
 :8. Threatening Words. 
 19. Threatening Gestures. 
 
 20. Administering Drugs. 
 31. Indecent Assault. 
 
 22. Mutual Combat. 
 
 23. Unlawful Imprisonment. 
 
 24. Corporations. 
 
 25. Assault without Actual Violence 
 
 Applied to the Person. 
 
 26. Assault with Viole/ice not Directfy 
 
 Applied to the Person. 
 
 27. Assault with Violence Applied to 
 
 the Person. 
 
 28. Actual and Grievous Bodily Harm. 
 
 29. Assault with Deadly Weapon. 
 
 30. Assault with Fire-arms. 
 
 31. Dangerous or Deadly Weapon. 
 
 32. Assault with Intent to Kill. 
 
 33. Accessories. 
 
 34. Evidence of Threats. 
 
 35. Damages. 
 
 1. Definii.ion. — All crimes of violence to the person include an 
 assault, and the nature of the crime depends much more fre- 
 
 chine, to be delivered at the end of Au- 
 gust. The defendants contracted with 
 'the plaintiffs to make " as soon as possi- 
 ble" part of the machine called a '"gun." 
 The defendants were aware that the ma- 
 chine was wanted by J. at the end of Au- 
 gust, but they did not finish the "gun" 
 until the latter part of September. J. 
 then refused to accept the machine from 
 the plaintiffs. The delay on the part of 
 the defendants was owing to the circum- 
 stance that at the time of undertaking to 
 manufacture the "gun" they had not a 
 foreman competent to prepare certain 
 patterns, without which it could not be 
 made. Held, that the defendants had 
 committed a breach of their contract, 
 and that the plaintiffs were entitled to 
 recover damages for the loss of profit 
 upon the contract with J., and for the ex- 
 penditure uselessly incurred by them in 
 making other parts of the machine. L. 
 R. 4 Q. B. Div. 670. 
 
 As Far as Possible. — The Towns Im- 
 provement Clauses Act, 1847, 10 and 11 
 Vict. c. 34, s. 108, imposes a penalty on 
 persons so negligently using a furnace as 
 not to "consume the smoke" arising from 
 It. The Birmingham Improvement Act, 
 
 1851, 14 and 15 Vict. c. 93. s. 55, incor- 
 porates the above section, but provides 
 that the words "consume the smoke" 
 shall not be in all cases read as ' ' consume 
 'air the smoke;" and that the penalty 
 maybe remitted if the person summoned 
 under that section has so constructed or 
 altered his furnace as to consume " as far 
 as possible" its smoke, "and has care- 
 fully attended to the same, and consumed 
 ' as far as possible ' " its smoke. On an 
 information against the appellant for so 
 negligently using his furnace as not to 
 consume its smoke, it was not shown 
 that the furnace was improperly con- 
 structed; it was found that it was capable 
 of consuming more smoke than it in fact 
 did; but that to use the means provided 
 for that purpose would render it impossi- 
 ble to carry on the appellant's trade with 
 that furnace. The appellant was con- 
 victed. Held (assuming the furnace to 
 be properly constructed), that "as far as 
 possible" meant as far as possible con- 
 sistently with carrying on the trade in 
 which the furnace was employed, and 
 that the appellant was wrongly convicted. 
 Cooper V. WooUey, L. R. 2 Ex. 88. 
 1. Thus, where a statute made abortion 
 
 778 
 
Definition. 
 
 ASSAULT. 
 
 Definition, 
 
 quently on the consequences of the act than any peculiarity of 
 the act itself. The decisions on the various crimes of violence 
 will, therefore, frequently serve to illustrate the principles appli- 
 cable to all. These cases are ranged under the heads of the 
 crimes to which they refer. 
 
 An assault is an attempt unlawfully to apply any the least 
 actual force to the person of another directly or indirectly ; the 
 act of using a gesture towards another, giving him reasonable 
 grounds to believe that the person using that gesture meant to 
 apply such actual force to his person as aforesaid ; the act of 
 depriving another of his liberty ; in either case without the consent 
 of the person assaulted, or with such consent if it is obtained by 
 fraud.* 
 
 Any unlawful physical force, partly or fully put in motion, 
 creating a reasonable apprehension of immediate physical injury 
 to a human being, as raising a cane to strike him, pointing a loaded 
 gun at him, and the like.** 
 
 n. crime, "unless the same were done 
 as necessary for the preservation of' 
 the mother's life," it was held that this 
 exception might be read "unless the same 
 were done as it were necessary," and that 
 the exception was sufficiently negatived 
 by the words in the indictment, "it not 
 being then and there necessary to admin- 
 ister said drug." Beasley v. People, 8g 
 
 111- 571. 577- 
 
 1. Stephen's Dig. Cr. L. (Am. Ed.) 181. 
 The following are cases of assault with- 
 out battery: 
 
 A strikes at B with a stick without hit- 
 ting him. I Hawk. P. C. no. 
 
 A aims' a pistol at B. which A knows 
 is not loaded, but which B believes to be 
 loaded. R. o. George, 9 C. & P. 483. 
 
 In the following cases no assault or 
 battery is committed: A lays his hand 
 on B, to attract his attention. A, falling 
 down, catches hold of B to save himself. 
 A crowd of people, going into a theatre, 
 push and are pushed against each other. 
 Stephen's Dig. Cr. L. (Am. Ed.) 181. 
 Com. V. White, no Mass. 407; Hays v. 
 People, I Hill (N. Y.), 351; State v. 
 Davis, I Ired. (N. Car.) 128; s. c, 35 Am. 
 Dec. 735; State v. Morgan, 3 Ired. (N. 
 Car.) 186; Rictels v. State, i Sneed 
 (Tenn.), 606; U. S. v. Hand, 2 Wash. C. 
 C. 435. 
 
 2. 2 Bishop's Cr. L. § 23. See People 
 V. Lilley, 43 Mich. 521; Hays v. People, 
 I Hill (N. Y.), 351; U. S. V. Hand, 2 
 Wash. C. C. 435; Johnson v. Tompkins, 
 I Baldw. (C. C.) 571; U. S. v. Ortega, 4 
 Wash. C. C. 534. 
 
 An assault is an attempt or offer to do 
 a corporeal hurt to another, as by striking 
 him, or presenting a gun at him at car- 
 
 rying distance, or pointing a pitchfork at 
 him, or holding up one's fist at him, or 
 doing any such like act in an angry, 
 threatening manner. Brown's Law Diet. 
 
 Strictly speaking, an assault is an un- 
 successful attempt to do harm to the per- 
 son of another, as by menacing with a 
 stick a person who is within reach of it, 
 although no blow be struck. Sweet's 
 Law Diet. 
 
 An unlawful offer or attempt with force 
 or violence to do a corporeal hurt to an- 
 other. Force unlawfully directed or ap- 
 plied to the person of another under such 
 circumstances as to cause a well-founded 
 apprehension of immediate peril. Bou- 
 vier's Law Diet. 
 
 In Chapman v. State, 78 Ala. 463, the 
 court said: "The approved definition of 
 an assault involves the idea of an inchoate 
 violence to the person of another, with 
 the present means of carrying the intent 
 into effect. 2 Greenl. Ev. § 82; Roscoe's 
 Cr. Ev. (7th Ed.) 296; People v. Lilley, 
 43 Mich. 521. 
 
 Most of our decisions recognize the old 
 view of the text-books, that there can be 
 no criminal assault without a present in- 
 tention, as well as present ability, of 
 using some Violence against the person 
 of another." I Russ. Cr. (gth Am. Ed.) 
 1019; State V. Blackwell, 9 Ala. 79; Tar- 
 ver V. State, 43 Ala. 354. 
 
 In Lawson v. State, 30 Ala. 14, it was 
 said that, "to constitute an assault there 
 must be the commencement of an act, 
 which, if not prevented, would produce 
 a battery." 
 
 " An assault is an intentional attempt, 
 by violence, to do an injury to the person 
 of another. It must be intentional, for 
 (79 
 
Definition, 
 
 ASSAULT. 
 
 Definition.. 
 
 if it can be collected notwithstanding ap- 
 pearances to the contrary, that there is 
 no present purpose to do an injury, there 
 is no assault. And it must also amount 
 to an attempt; for a purpose to commit 
 violence, however fully indicated, if not 
 accompanied by an eiiort to carry it into 
 immediate execution, falls short of an 
 actual assault." State v. Davis, i Ired. 
 L. (N. Gar.) 125; s. i;., 35 Am. Dec. 735. 
 See State v. Vannoy, 63 N. Car. 532; 
 State V. Neely, 74 N. Car. 426; State v. 
 Myerfield, Phil. L. (N. Car.) 109; People 
 V. Lilley. 43 Mich. 521. See Johnson v. 
 State, 35 Ala. 363; Lawson v. State, 30 
 Ala. 14; People w. Yslas, 27 Cal. 630; 
 People V. Campbell, 30 Cal. 312. 
 
 Although force and violence are in- 
 cluded in all definitions of assault, yet, 
 where there is physical injury to another 
 person, it is sufficient that the cause is 
 set in motion by the defendant, or that 
 the person is subjected to its operation 
 by means of any act or control which the 
 defendant exerts. Com. v. Stratton, 114 
 Mass. 303; s. c, 19 Am. Rep. 350, where 
 a woman was given cantharides. 
 
 Violence must be either offered, men- 
 aced, or designed. People v. Bransby, 
 32 N. Y. 525. 
 
 The intention to injure must be a pres- 
 ent one, and not one to inflict an injury 
 at some other, or future time. Johnson 
 V. State. 43 Tex. 576, 
 
 Mr. Roscoe says (Ros. Cr. Ev. (loth 
 Ed. 304.): "An assault is an attempt or 
 offer with force or violence to do a cor- 
 poral hurt to another, whether from mal- 
 ice or wantonness, as by striking at him, 
 or even holding up the fist to him in a 
 threatening or insulting manner, or with 
 such other circumstances as denote at the 
 time an intention, coupled with a present 
 ability, of actual violence against his per- 
 son, as by pointing a weapon at him when 
 he is within the reach of it. I East P. C. 
 406. Striking at another with a cane, 
 stick, or fist, atthough the party striking 
 misses his aim. 2 Roll, Abr. 545, 1. 45. 
 Drawing a sword or bayonet, or throw- 
 ing a bottle or glass with intent to wound 
 or strike; presenting a gun at a man who 
 is within the distance to which the gun 
 will carry; pointing a pitchfork at him 
 when within reach of it; or any other act 
 indicating an intention to use violence 
 against the person of another, is an as- 
 sault. I Hawk. c. 62, § I. It is an as- 
 sault to point a loaded pistol at any one; 
 but not an assault to point at another a 
 pistol which is proved not to be so loaded 
 as to be able to be discharged. R. v. 
 James, C. & K. 530; McKay v. State, 44 
 Tex. 43. But in R. v. St. George, 9 C. 
 
 & P. 483, Parke, B., held otherwise, say- 
 ing that it was an assault to present a pis- 
 tol at a man at all, whether loaded or not. 
 See States. Smith, 2 Humph.(Tenn.)457. 
 Considerable doubt has been thrown on 
 this decision by the case of R. v. Brown, 
 10 Q. B. D. 381; 52 L. J. M. C. 49. Al- 
 though to constitute an assault there must 
 be a present ability to inflict an injury, 
 yet if a man is advancing in a threaten- 
 ing attitude to strike another, so that the 
 blow would almost immediately reach 
 him if he were not stopped, and he is 
 stopped, this is an assault. Stephens v. 
 Myers, 4 C. & P. 349." 
 
 There are no degrees of the offence of 
 assault and battery, except that, in im* 
 posing the punishment, the circumstances 
 of one case may demand a heavier pun- 
 ishment than another. Cbrnelison w. 
 Commonwealth. 2 S. W. Repr. (Ky.) 235. 
 Assault on Judge. — An assault com- 
 mitted on a judge, or other dignitary of 
 the State, is not a greater offence, in the 
 .absence of statute, than a similar assault 
 on a private person. Cornelison v. Com- 
 monwealth, 2 S. W. Repr. (Ky.) 235. 
 
 What Is. — It is an assault to ride dan- 
 gerously near a person, thus causing him 
 to fear injury to his person. State v. 
 Sims, 35 Strob. (S. Car.) 137; Morton v. 
 Shoppee, 3 C. & P. 373. 
 
 To cut a man's clothes whilst on his 
 person is an assault, although there is no 
 intention to inflict any bodily injury, and 
 in the ordinary case of a blow on the 
 back there is clearly an assault, though 
 the blow is received by the coat on the 
 person. R. v. Day, i Cox C. C. 207. 
 
 A master who chastises a minor ser- 
 vant is guilty of assault. Davis v. State, 
 6 Tex. App. 133; Coopers. State, 8 Baxt. 
 (Tenn.) 324; s. c, 35 Am. Rep. 704. 
 
 A self constituted vigilance committee 
 who flog an obnoxious person are guilty 
 of assault. Boyle v. Case, 18 Fed. Repr. 
 880. 
 
 If resistance be prevented by fraud, it 
 is an assault. If a man, therefore, have 
 connection with a married woman under 
 pretence of being her husband, he is 
 guilty of an assault. R. v. Williams, 8 
 C. &P.286; R. z/. Saunders,8C.&P. 265. 
 Making a female patient strip naked 
 under the pretence that the defendant, a 
 medical man, cannot otherwise judge of 
 her illness is, if he himself takes off her 
 clothes, an assault. R. v. Rosinski, I M. 
 C. C. 19. 
 
 If a party is turning towards the wall 
 in the street, at night, for a particular oc- 
 casion, a watchman is not justified in col- 
 laring him to prevent him so doing. 
 Booth v. Hanley, 2 C. & P. 288. 
 
 780 
 
Sefinition. 
 
 ASSAULT. 
 
 Definition. 
 
 WAat is — Continued. 
 
 Defendant intruded upon the premises 
 •of prosecutor, who took hold of him to 
 lead him off, when defendant put his hand 
 in his pockfet and partly drew out a knife, 
 and thereupon the prosecutor desisted and 
 went into the house, the defendant curs- 
 ing him. Held, an assault. State v. 
 Marsteller, S4N. Car. 726; State z/. Hamp- 
 ton, 63 N. Car. 13; State v. Shipman, 81 
 N. Car. 513. 
 
 The parties were disputing about a 
 piece of land; the prosecutor on one side 
 of a fence advanced towards the defen- 
 •dant with an axe; the defendant on the 
 -other side shot him across the fence. 
 Held, the principle of self-defence has no 
 application, but defendant is guilty of 
 an assault. State v. Leary, 88 N. Car. 
 615. 
 
 Defendant being about twenty steps 
 distant advanced towards prosecutor with 
 knife and stick, cursing and threatening 
 to do him bodily harm, in consequence of 
 which the prosecutor went into a store 
 and remained until a warrant was ob- 
 tained, the defendant walking in front of 
 the store saying he would whip the prose- 
 •tutor if he came out. Held, an assault. 
 State V. Martin, 85 N. Car. 508; s. c, 39 
 _Am. Rep. 711. 
 
 B seized A by the arm, swung him 
 round and let him go, throwing him 
 against C, who instantly pushed him 
 away, whereby A came violently against 
 a hook and was injured. Held, that A 
 might maintain an action for assault 
 agiinst B. Ricker v. Freeman, 50 N. H. 
 420; s. c, 9 Am. Rep. 267. 
 
 It is an assault for a priest to remove a 
 person by violence who is lawfully in a 
 room, where he wishes to administer the 
 sacrament to a sick person. Cooper v. 
 -McKenna, 124 Mass. 284; s. c, 26 Am. 
 ;Rep. 667. 
 
 A, a boy of about twelve years of age, 
 •said to B, a boy of about nine years of 
 age, "I will shoot you." B ran into a 
 school-house near which the boys were 
 playing, and hid behind a fireboard stand- 
 ing before the fireplace in the school- 
 room. A followed to the door of the 
 school-room, and, saying, " See me shoot 
 that basket," discharged an arrow. At 
 that moment B raised his head above the 
 fireboard, and the arrow struck him and 
 injured his eye. Held. A was guilty of 
 assault. Bullock v. Babcock, 3 Wend. 
 
 (N. Y.)39i. . ., . 
 
 Two persons may be guilty of assault 
 on two or more persons. Fowler v. State, 
 3 Heisk. (Tenn.) 154. 
 
 A mutual agreement to fight with fists 
 renders each of the parties engaged in 
 
 the fight guilty of assault. Com. v. Coll- 
 berg, 119 Mass. 350; ». c, 20 Am. Rep. 
 328. 
 
 Pointlnga loaded gun at half-cock at a 
 person is an assault; for there is a present 
 ability of doing the act threatened, as the 
 gun can be cocked in an instant. Osborn 
 V. Veitch, I F. & F. 317. 
 
 By the law of nations an attack on the 
 property of a foreign minister is an as- 
 sault on him, but to constitute the offence 
 the prisoner must have known that the 
 house was the domicile of a foreign min- 
 ister. U. S. V. Hand, 2 Wash. C. C. 
 435- 
 
 Gvin or Pistol.— Pointing a loaded gun 
 or pistol at another in a threatening man 
 ner is an assault. Morgan v. State, 33 
 Ala. 413; State v. Shepard, 10 Iowa, 126; 
 State V. Taylor, 20 Kan. 643; U. S. v. 
 Kierman, 3 Cranch. C. C. 435. 
 
 It is immaterial that the person so using 
 ,the gun did not actually know that it was 
 loaded. Com. v. McLaughlin, 5 Allen 
 (Mass.), 507. 
 
 If the person assaulted had reasonable 
 cause to believe that it was loaded, it is 
 an assault though it is not loaded. Com. 
 V. White, no Mass. 407. Compaie State 
 V. Swails, 8 Ind. 524. 
 
 Injuries inflicted during Ceremonies of 
 Fraternities, etc. — In State %i. Webster, 75 
 N. Car. 134, the prosecutrix was a mem- 
 ber of a benevolent society known as the 
 "Good Samaritans." Having been re- 
 miss in some of her obligations, the so- 
 ciety proceeded to perform the ceremony 
 of expulsion, which consisted of a sus- 
 pension from the wall by a cord fastened 
 around the waist. The same ceremony 
 had before been performed in presence of 
 the prosecutrix. As soon as she cried 
 out that the cord hurt her she was re- 
 leased, and at once fainted. The court 
 said: " When the prosecutrix refused to 
 submit to the ceremony of expulsion es- 
 tablished by this benevolent society, it 
 could not be lawfully inflicted. Rules of 
 discipline for this and all voluntary asso- 
 ciations must conform to the laws. If 
 the act of tyingj this woman would have 
 been a battery had the parties concerned 
 not been members of the society of 
 ' Good Samaritans,' it is not the less a 
 battery because they were all members of 
 that humane institution. The punish- 
 ment inflicted upon the person of the 
 prosecutrix was wilful, violent, and 
 against her consent, and thus contained 
 all the elements of a wanton breach of 
 the peace." Bell v. Hansley, 3 Jones L. 
 (N. Car.) 131. 
 
 The plaintiff, during his initiation as a 
 
 781 
 
Sefinition. 
 
 ASSA ULT. 
 
 Sefinition. 
 
 An acr-crravated assault is one committed with the intention of 
 
 committing some additional crime.^ 
 
 member of the defendants' lodge, in the 
 presence of the principal officers and a 
 number of members, constituting a full 
 and perfect meeting, was injured through 
 the rough usage of some of the members. 
 It appeared that this and other proceed- 
 ings were taken with the knowledge of all 
 those who were present, and that some- 
 what similar proceedings had happened 
 on the occasion of other initiations, and 
 that they were allowed and not checked. 
 Held, that they must be taken to have 
 been done with the consent of the corpo- 
 rate body, and that the defendants were 
 liable in damages for the injuries sus- 
 tained. Kinver v. Phoenix Lodge, 7 Ont. 
 R. Q. B. Div. 377; s. c, 8 Am. & Eng. 
 Corp.Cas. 251. 
 
 Vigilance Committee. — No plea of the 
 public good or safety can justify a volun- 
 tary assemblage of people in inflicting a 
 personal injury upon any individual; but 
 in an action to recover damages therefor, 
 the jury, in considering whether the plain- 
 tiff is entitled to punitive damages or not, 
 may and ought to take into account the 
 causes or motives which led the defend- 
 ants to do the wrong complained of. 
 Boyle V. Case, 18 Fed. Repr. 880. 
 
 What Is Not. — A, having the right to 
 immediate possession of a house, entered 
 it and forcibly took awaythe windows of 
 the room in which B was sick in bed. 
 Without evidence that A knew that B 
 was in the house A's act does not amount 
 to an assault. Meader v. Stone, 7 Mete. 
 (Mass.) 147. See Stearns v. Sampson, 59 
 Me. 568; s. c, 8 Am. R. 442. 
 
 Where a policeman was stationed at a 
 door to prevent a person from entering, 
 it was hdld that if he was entirely passive, 
 like a door or a wall put to prevent that 
 person from entering the rootii and sim- 
 ply obstructing the entrance of that per- 
 son, no assault was committed. Innes 
 ■V. Wylie, i C. & K. 257. 
 
 One who negligently drives over an- 
 other is not guilty of a criminal assault 
 and battery, although he does it while 
 violating a cityordinance against fast driv- 
 ing. Com. v. Adams, 114 Mass. 323; s. 
 c, ig Am. Rep. 362. 
 
 If one, without anger, moderately chas- 
 tises another in order to preserve disci- 
 pline, it is not an assault. State v. Neff, 
 58 Ind. 516. (See also LAWFUL CHAS- 
 TISEMENT, infra, p. 794.) 
 
 A drew a pistol on B, but did not pre- 
 sent or cock it. Held, not an assault. 
 Lawson v. State, 30 Ala. 14. 
 
 A snatched a bank-note from the hand 
 
 of B. Held, not an assault with force 
 and violence. Com. v. Ordway, 12 Cush. 
 (Mass.) 210. 
 
 Where one is falling and to save him- 
 self grasps hold of another, it is not an 
 assault. Coward v. Baddeley, 5 Up. Can. 
 L. J. 262. 
 
 If a gun is not aimed directly at a per- 
 son, and there does not exist an intention 
 to fire, it is not an assault. Lawson v. 
 State, 30 Ala. 14. See Woodruff v. Wood- 
 ruff, llQis.. 237; Tarver v. State, 43 Ala. 
 
 354- 
 
 Presenting an unloaded gun at a person 
 is not an assault. State v. Shepard, 16 
 Iowa, 126. 
 
 A pointed a gun at B, who was armed 
 with a knife and threatened to assault A, 
 but A did not intend to shoot unless in 
 self-defence when actually attacked. Held, 
 not an assault by A. State v. Blackwell, 
 9 Ala. 79. 
 
 A held out his arms as if to take hold 
 of B, who ran away. Held, not an as- 
 sault with intent to commit rape. House 
 V. State, 9 Tex. App. 53. 
 
 An excise officer gave the defendant a 
 search-warrant to look at, who then re- 
 fused to deliver it up, and a scuffle en- 
 sued; on an indictment for an assault, 
 the question left to the jury was whether 
 the officer used more force than was nec- 
 essary to recover possession of the war- 
 rant. Rex v. Milton, M. & M. 107; s. c, 
 nom. Rex v. Mitton, 3 C. & P. 31. 
 
 If one has an idiot brother who is bed- 
 ridden in his house, and keeps him in a 
 dark room without sufficient warmth or 
 clothing, this will not be an assault or an 
 imprisonment, nor will proof of this sup- 
 port an indictment for an assault or an 
 imprisonment. Rex v. Smith, 2 C. & P. 
 449. 
 
 1. Bouvier's Law Diet. 
 
 Aggravating Circumstances, — The ag- 
 gravating circumstances frequently con- 
 sist in the intent. Sometimes, however, 
 the consequences alone are sufficient to 
 subject the prisoner to the more serious 
 punishment; thus a man who commits an 
 assault, the result of which is to produce 
 grievous bodily harm, is liable to be con- 
 victed under s. 47 of the 24 & 25 Vict. c. 
 100, though the jury think that the griev- 
 ous bodily harm formed no part of the 
 prisoner's intention. R. v. Sparrow, 30 
 L. J. M. C. 43- 
 
 On an indictment for an assault occa- 
 sioning actual bodily harm, and charging 
 in other counts an unlawful wounding 
 and the infliction of grievoiis bodily 
 
 783 
 
Definition. 
 
 ASSAULT. 
 
 Battery. 
 
 The unlimited character of this crime makes it a convenient 
 means of punishing a variety of crimes, which do not at first sight 
 seem to be assaults, at least not in the popular signification of the 
 term ; for example, putting a child into a bag, hanging it on some 
 palings, and there leaving it.* But a mere omission to do an act 
 cannot be construed into an assault.* 
 
 The party injured may proceed against the defendant by action 
 and indictment for the same assault ; and the court in which the 
 action is brought will not compel him to make his election to pur- 
 sue either the one or the other, for the punishment upon the 
 criminal prosecution and the damages to the party in the civil 
 action are perfectly distinct in their natures.^ 
 
 2. Battery. — A battery is not necessarily a forcible striking with 
 the hand or stick or the like, but includes every touching or lay 
 ing hold (however trifling) of another person, or his clothes, in an 
 angry, revengeful, rude, insolent, or hostile manner; for example, 
 
 rated from the ditch by a hedge, Parke, 
 B., is reported to have said that "there 
 were no marks of violence on the child, 
 and it does not appear in the result that 
 the child actually experienced any incon- 
 venience, as it was providentially found 
 soon after it was exposed, and therefore, 
 although it is said in some of the books 
 that an exposure to the inclemency of the 
 weather may amount to an assault, yet, 
 if that be so at all, it can only be when 
 the person EuJfers a hurt or injury of some 
 kind or other from the exposure. R. v. 
 Renshaw, 2 Cox C. C. 285. 
 
 But where the defendants told the 
 mother of a child of which she had been 
 delivered that it was to be taken to a. 
 nursery or institution to be brought up, 
 and they put the child in a bag and hung 
 it upon some park-pales at the side of a 
 footpath, and it was likely that the put- 
 ting a child of so tender an age into a 
 bag and hanging the bag on the pales 
 would cause its death, Tindal, C. J., held 
 that the defendants were guilty of an as- 
 sault; for the mother gave consent on the 
 pretext that the child was to be taken to 
 some institution, and as that pretext was 
 false, it was no consent at all. R. v. 
 March, i C. & K. 496. 
 
 S. Where a man kept an idiot brother, 
 who was bedridden, in a dark room in 
 his house, without sufficient warmth or 
 clothing, held, that these facts would 
 not support an indictment for assault and 
 false imprisonment; for although there 
 had been negligence, yet mere omission, 
 without a duty, would not create an of- 
 fence indictable as an assault. R. v. 
 Smith, 2 C. & P. 439. 
 
 8. I Russ. on Cr. (gth Am. Ed.) 1030; . 
 State </. Frost, i Brev. (S. Car.) 385; 
 State t/. Blythe, i Bay. (S. Car.) 166. 
 
 harm, a conviction may be had for a 
 common assault. R. v. Yeadon, I L. & 
 C. 85. 
 
 And this is so notwithstanding the word 
 " assault " does not occur in the indict- 
 ment. R. V. Tavlor, L. R. i C. C. 194; 
 38 L. J. M. C. 106. 
 
 On an indictment for feloniously cut- 
 ting, stabbing, or wounding, the jury 
 may find a verdict of guilty of the mis- 
 demeanor of unlawfully wounding, under 
 the 14 & 15 Vict. c. 19, s. 5. 
 
 1. Harris Grim. Law (Force's Ed.), 
 151; R. V. March, i C. & K. 496. 
 
 Where parish officers, by force and 
 against her consent, cut off the hair of a 
 young woman who was an inmate of a 
 workhouse, it was held an assault. Forde 
 V. Skinner, 4 C. & P. 449. 
 
 Exposing a child of tender years, or a 
 person under the control and dominion 
 of the party, to the inclemency of the 
 weather, is an assault. R. v. Ridley, 2 
 Camp. 650; I Russ. Cri. 959. 
 
 An indicRnent against a mistress for 
 not providing sufficient food and suste- 
 nance for a servant, whereby the servant 
 became sick and emaciated, was ruled to 
 be bad, because it did not allege that the 
 servant was of tender years, and under 
 the dominion and control of her mistress; 
 it was suggested that the indictment also 
 charged that the defendant exposed the 
 servant to the inclemency of the weather; 
 and it was holden that such exposure was 
 an act in the nature of an assault, for , 
 which the defendant might be liable, 
 whatever was the age of the servant. 
 R. V. Ridley, 2 Camp. 650. See Com.w. 
 Stoddard, g Allen (Mass.), 280. 
 
 Where a mothei' left her child, ten days 
 old, at the bottom of a dry ditch, by 
 which there was a path, and a lane sepa- 
 
 783 
 
Contributory Negligence. 
 
 ASSAULT. 
 
 Consent. 
 
 jostling another out of the way. Thus, if a man strikes at another 
 with a cane or fist, or throws a bottle at him, if he misses, it is an 
 assault ; if he hits, it is a battery.''- 
 
 3. Contributory Negligence. — The doctrine that contributory neg- 
 ligence on the part of a plaintiff will defeat his action has no ap- 
 plication to a case of unlawful assault and battery, and no defence 
 can be predicated theron.* 
 
 4. Consent. — As a rule, consent on the part of the complainant 
 deprives the act of the character of an assault, unless, indeed, non- 
 resistance has been brought about by fraud. ^ But the fact of 
 
 1. Harris' Crim. Law (Force's Ed ),i5i; 
 Stephens' Dig. Cr. Law (Am. Ed.), rSl. 
 See State w. Baker, 65 N. Car. 332; John- 
 son V. State, 17 Tex. 515; Respublica v. 
 De Longchamps, I Dall. (U. S.) m; U. 
 S. V. Ortega, 4 Wash. (U. S.) 534. 
 
 Mr. Stephens gives the following as 
 cases of assault and battery (Dig. Cr. 
 L. Am. Ed. 182): 
 
 A cuts B's dress whilst B is wearing 
 it, but without touching, or intending to 
 touch, any part of B's person. R. u. Day, 
 I Cox C. C. 207. 
 
 A sets a dog at B, which bites B. i 
 Russ. Cr. 958 gives several cases of this 
 sort. 
 
 A man, professing to act as a medical 
 adviser, fraudulently induces a girl to al- 
 low him to undress her, by falsely alleg- 
 ing that it is necessary, for medical rea- 
 sons, to do so. R. V. Rosinski, l Russ. 
 Cr. 959. And see R. v. Case, i Den. 580. 
 
 A touches B, a boy of eight, in a 
 grossly indecent manner, B acquiescing 
 in ignorance of the nature of the act. 
 R. V. Lock, L. R. 2 C. C. R. 10. And 
 «ee R. V. Barnett, L. R. 2 C. C. R. 81. 
 
 A induces B to permit him to have con- 
 nection with her, by pretending to be her 
 liusband. R. v. Williams, 8 C. & P. 286. 
 
 A battery is more than an attempt to 
 do a corporal hurt to another; but any 
 injury whatsoever, be it ever so small, 
 being actually done to the person of a 
 man in an angry or revengeful or rude 
 or insolent manner, such as spitting in 
 his face, or in any way touching him in 
 anger, or violently jostling him out of the 
 way, is a battery in the eye of the law. 
 For the law cannot draw the line between 
 different degrees of violence, and, there- 
 fore, totally prohibits the first and lowest 
 stage of it; every man's person being 
 sacred, and no other having a right to 
 meddle with it in any the slightest man- 
 ner. It should be I observed that every 
 battery includes an assault, i Russ. on 
 Cr. .(9th Am. Ed.) 1020. 
 
 A beat a horse while being driven by 
 B. Held, not a battery on B. Kirland 
 
 V. State, 43 Ind. 146; s. c, 13 Am. Rep. 
 386. 
 
 2. Steinmetz v. Kelly, 72 Ind. 442; 
 s. c, 37 Am. Rep. 170. 
 
 The exclusion of evidence tending to 
 show that the plaintiff's negligence con- 
 tributed to his injuries is not erroneous. 
 Whitehead v. Mathaway, S5 Ind. 85; 
 Ruter V. Foy, 46 Iowa, 132. 
 
 3. Pillow V. Bushnell, 5 Barb. (N. Y.) 
 156; People V. Dohring, 59 N. Y. 374; 
 Champer v. State. 14 Ohio St. 437; Smith 
 V. State, 12 Ohio St. 466; State v. Burg- 
 dorf, 53 Mo. 65; Duncan v. Com., 6 Dana 
 (Ky.), 295; State v. Murphy, 6 Ala. 765; 
 Anschicks v. State, 6 Tex. App. 524. 
 
 There may be submission by a child of 
 tender years to an assault without legal 
 consent. Cliver v. State, 45 N. J. L. 46; 
 Hays V. People, i Hill (N. Y.), 351; Peo- 
 ple V. Justices, 18 Hun (N. Y.), 330. 
 
 Attempting to have connection with a 
 girl between the ages of ten and twelve, 
 or under ten years of age, if done with 
 the girl's consent, is not an assault. R. 
 w. Meredith, 8 C. & P. 589; R. v. Banks, 
 8 C. & P. 574; R. V. Martin, 9 C. & P. 
 213. 
 
 A person who whips another at the 
 latter's request, and for the purpose, as 
 they both supposed, of saving him from 
 a greater punishment, is not-guilty of as- 
 sault. State V. Beck, i Hill (S. Car.), 
 363; s. c, 26 Am. Dec. 190. 
 
 The case of Matthew v. Ollerton, 
 Comb. 218, is referred to as an authority 
 that if one license another to beat him, 
 such license is no defence, because it is 
 against the peace. 
 
 Where a boy was seized, by his con- 
 sent, while in the legal custody of his 
 father, held, an assault. Com. v. Nick- 
 erson, 5 Allen (Mass.), 518. 
 
 Ultimate consent to sexual intercourse, 
 though freely given, after the use of vio- 
 lence and threats, will not justify the 
 violence and threats. Dickey v. McDon- 
 nell, 41 111. 62; Desborough v. Homes, 
 I F. & F. 6. 
 
 If excessive force is used in sexual in- 
 
 784 
 
Consent. 
 
 ASSAULT. 
 
 Consent. 
 
 consent will in general be immaterial when an actual battery or 
 breach of the peace has been committed. 
 
 tercourse, consent is not a defence to 
 charge of assault. Richie v. State, 58 
 Ind. 355. 
 
 An assault is within the rule that fraud 
 vitiates consent; and therefore when a 
 man, knowing that he had a foul disease, 
 induced a girl of thirteen, who was igno- 
 rant of his condition, to consent to sleep 
 with him, and he infected her, held, 
 that he might be convicted of an indecent 
 assault. R. v. Bennett, 4 F. & F. 1105. 
 
 If a surgeon professing to take steps 
 to cure a girl of a complaint has carnal 
 connection with her, and she is ignorant 
 of the nature of his act, and makes no 
 resistance, solely from a bona-fide belief 
 that he is, as he represents, treating her 
 medically, with a view to her cure, his 
 conduct in point of law amounts to an, 
 assault. People v. Bransby, 32 N. Y. 
 525; R. V. Case, 5 Cox C. C. 222. 
 
 Where defendants told the mother of 
 a child of which she had been delivered 
 that it was to be taken to a nursery or 
 institution to be brought up, and they 
 put the child in a bag and hung it upon 
 some park-pales at the side of a footpath, 
 and it was likely that the putting a child 
 of so tender an age into a bag and hang- 
 ing the bag on the pales would cause its 
 death, Tindal, C. J., held that the de- 
 fendants were guilty of an assault; for 
 the niother gave consent on the pretext 
 that the child was to be taken to some 
 institution, and as that pretext was false, 
 it was no consent at all. R. v. March, i 
 C. & K. 496. 
 
 In fightmg by mutual agreement, con- 
 sent is no defence. Com. v. Callberg, 
 119 Mass. 350; s. c, 20 Am. Rep. 328. 
 See Fitzgerald v. Calvin, no Mass. 153. 
 See also Mutual Combat, post, p. 807. 
 
 Mr. Roscoe says (Ros. Cr. Ev. 306) : 
 "In consequence of the natural desire 
 not to permit a flagrant act of immorality 
 to go unpunished, an attempt has fre- 
 quently been made to treat that as an as- 
 sault which is consented to on the part of 
 the person who is the subject of the act. 
 But on examination it will be found that 
 there is no authority for such a position. 
 Thus in R. v. Nichols, Russ. & Ry. 130, 
 which is sometimes quoted in' support of 
 such a doctrine, where a master took in- 
 decent liberties with a female scholar to 
 which she did not resist, Mr. Baron Gra- 
 
 the distinction between consent and sub- 
 mission. He said: ' Every consent in- 
 volves a submission; but it by no means 
 follows that a mere submission involves 
 consent. It would be too much to say 
 that an adult submitting quietly to an 
 outrage of this description was not con- 
 senting; on the other hand, the mere sub- 
 mission of a child when in the power of 
 a strong man, and most probably acted 
 upon by fear, can by no means be taken 
 to be such a consent as will justify ihe 
 prisoner in point of law.' So where twa 
 boys of eight years of age were ignorant 
 of the moral nature of the act done tO' 
 them it was held that mere submission to. 
 an indecent act was not consent. R. v. 
 Lock, L. R. 2 C. C. R. 10. It is other- 
 wise if they willingly and intentionally 
 consent. R. v. Wollerston,' 12 Cox C. 
 C. iBo. In R. V. Martin, 2 Moo. C. C. 
 123, where the prisoner was convicted of 
 an assault with intent to carnally know a 
 girl above ten and under twelve years of 
 age, the girl assenting, the judges, on a 
 case reserved, held ihat the conviction 
 could not be supported. See also R. v. 
 Read, i Den. C. C. 377; 2 C. & K. 927- 
 R. V. Johnson, i L. & C. 632; 34 L. 
 J. M. C. 192 If the consent of the in- 
 jured party has been obtained by fraud, 
 then the outrage is considered as not the- 
 less an assault because it is consented to. 
 Thus in R. v. Saunders, 8 C. & P. 265, 
 where a man, pretending to be her hus- 
 band, went to bed with a married woman, 
 and she believing him to be her husband, 
 permitted him to have connection with 
 her, this was held by Gurney, B., to be 
 an assault. And the same was held by 
 Alderson, B., in R. j/. Williams, 8 C.' 
 & P. 286. See also R. v. Case, t 
 Den. C. C. 580; R. v. Bennett, 4 F. & 
 F. 1105 ; R. V. Flattery, 9 Q. B. D. 
 410; 46 L. J. M. C. 130; R. Ti. Young,. 
 14' Cox C. C. R. 114; Hegarty v. Shine,. 
 14 Cox C. C. Ir. 124, 145. It has also 
 been said, though the law is not so clear 
 upon this point, that where the act is in 
 itself unlawful, it will, though consented 
 to, be punishable as an assault. Cole- 
 ridge, J., in R. V. Lewis, i C. & K. 419,. 
 said that if two parties go out to strike 
 one another, and do so, it was an as- 
 sault in both, and that it was quite imma- 
 terial who struck the first blow. And see 
 
 ham distinctly told the jury that there /i»rCave, J., in R. v. Coney, L. R. 8 Q. 
 was some evidence to show that the acts B. D. 534. It is indeed said in BuUer's 
 of the prisoner were against the girl's N. P. 16 that in an action for assault and 
 will. And in R. v. Day, 9 C. & P. 722, battery it is no defence that the plaintiff 
 a similar case, Coleridge, J. , pointed out and defendant fought by consent, for that, 
 I C. of L.— 51 785 
 
Dn Official Persons. 
 
 ASSAULT. 
 
 Intent. 
 
 5. On Official Persons. — Assaults are aggravated by being com- 
 mitted oii persons in official station, particularly • when in the 
 actual discharge of official duties.* 
 
 6. Intent. — An intention on the part of the accused to do the 
 other party some bodily harm is essential to constitute an 
 assault.** 
 
 the fighting being unlawful, the plaintiff 
 would still be entitled to a verdict for the 
 injury done him. But in Christopherson 
 V. Bare, 17 L. J. Q. B. 109, the Court of 
 Queen's Bench held that a plea of leave 
 and license to an action of assault, 
 amounted to a plea of not guilty." R. v. 
 Knock, 14 Cox C. C. 1. 
 
 1. I Bish. Cr. L. § 470. Compare Cor- 
 nelison v. Commonwealth, 2 S. W. Repr, 
 (Ky.)235.' 
 
 Assault on Peace Officer. — The fact that, 
 the defendant did not Icnow that the man 
 whom he assaulted was a peace officer or 
 was in the execution of his duty is no 
 defence. R. v. Forbes, 10 Cox C. C. 362. 
 
 In R. v. Prince, L. R. 2 C. C. 154, Brett, 
 J., in commentingon the above case of R. 
 V. Forbes, said that although the police- 
 man was in plain clothes, the prisoners 
 certainly had strong ground to suspect, 
 if not to believe, that he was a police- 
 man; but Bramwell, B. , cited the case 
 with approval, saying that the act of 
 assaulting a police officer in the execu- 
 tion of his duty was a wrong in itself. 
 
 An indictment for assaulting an officer 
 in the execution of his duty, under a war- 
 rant, must clearly show that he is such 
 an officer as is authorized to execute the 
 warrant; and if it do not, the defendant 
 cannot be senteifced upon it for a com- 
 mon assault. A count for assaulting A. 
 in the execution of his office, imprison- 
 ing him, and preventing him from arrest- 
 ing a person as he was commanded by 
 a writ issued by the court of record of a 
 town and county, merely described A. as 
 "one of the sergeants-at-mace of the 
 said town and county," and the judgment 
 was arrested because it did not appear 
 that A. was a legal officer of the court 
 out of which the writ issued; for a ser- 
 geant-at-mace, ex vi termini, means no 
 more than a person who carried a mace 
 for somebody, and the indictment did not 
 show for whom; and taking the whole 
 count together, the jury, in effect, had 
 found that there was an assault and im- 
 prisonment, but committed under cir- 
 cumstances which justified the defendant, 
 and therefore there was not sufficient to 
 sustain the judgment, as for a common 
 assault, or for an imprisonment, i Russ. 
 on Cr. (gth Am. Ed.) 1047, 
 
 Conviction for a simple assault may be 
 had on an information charging an assault 
 on an officer with intent to resist arrest. 
 People V. Warner, 53 Mich. 78. 
 
 2. Cowley v. State, 10 Lea (Tenn.), 
 282; Richels v. State, l Sneed (Tenn.), 
 606; Bloomer v. State, 3 Sneed (Tenn.), 
 66; State v. Smith, 2 Humph. (Tenn.) 
 457; Keefe v. State, 19 Ark. 190; State 
 V. Sears, 86 Mo. 169; McKay v. State, 44 
 Tex. 43; Warren -v. State, 33 Tex. 517; 
 Johnson v. State, 17 Tex. 515; People v. 
 Yslas, 27 Cal. 630; People v. Keefer, 18 
 Cal. 636; State v. Sims, 3 Strob. (S. Car.) 
 137; State V. Cherry, 11 Ired. (N. Car.) 
 475; State V. King, 86 N. Car. 603; State 
 V. Morgan, 3 Ired. (N. Car.) 186; State 
 V. Davis, I Ired. (N. Caj.) 121; s. c, 35 
 Am. Dec. 735; State v. Crow, i Ired. (N. 
 Car.) 375; Woodrufif v. Woodruff, 22 Ga. 
 237; Smith V. State, 39 Miss. 521; John- 
 son u. State 35 Ala. 363; Lawson v. 
 State, 30 Ala. 14; State v. Blackwell, g 
 Ala. 79; Kunkle v. State, 32 Ind. 220; 
 Paxton V. Boyer, 67 III. 132; s. c. , 16 Am. 
 Rep. 615; State v. Malcolm, 8 Iowa, 413; 
 Barnes v. Martin, 15 Wis. 240; People v. 
 Lilley, 43 Mich. 521; Com. v. Adams, 
 114, Mass. 323; s. c, 19 Am. Rep. 362; 
 State V. Benedict, 11 Vt. 236; s. c, 34 
 Am. Dec. 088; People v. Bransby, 32 N. 
 Y. 525; Com. V. Eyre, i S. & R. (Pa.) 
 347; U, S. V. Ortega, 4 Wash. C. C. 534; 
 U. S. V. Myers, l Cranch C. C. 310; U. 
 S. V. Richardson, 5 tranch C. C. 348. 
 
 The intent must be carried into effect. 
 Yoes V. State, 9 Ark. 42. 
 
 Intent maybe inferred from the actions 
 of the defendant. Ware v. State, 67 Ga. 
 349. See Com, v. Shaw, 134 Mass. 221. 
 
 Where an act is committed deliberately, 
 and is likely to be attended witli danger- 
 ous consequences to the life of another, 
 malice may be presumed. Conn v. Peo- 
 ple, 116 III. 459. 
 
 To constitute an assault and battery, 
 the intent to injure must concur with the 
 use of unlawful violence upon the person 
 of the assaulted party; but the slightest 
 degree of force suffices to constitute the 
 violence, and the intended injury may be 
 to the feelings or the mind of the latter 
 as well as to the corporeal person. If 
 such injury would be the natural conse- 
 quence of the violence used, the unlawful 
 
 786 
 
Intent. 
 
 ASSAULT. 
 
 Intent- 
 
 intent is presumed unless the presumption 
 is repelled by the evidence. Donalson v. 
 State, lo Tex. App, 307. 
 
 A mere intent to commit violence, ac- 
 companied by acts preparatory thereto, 
 will not sustain conviction for an assault 
 if it goes no farther. There must be 
 present ability to carry out the intent, and 
 the act done must be criminal and suffi- 
 ciently proximate to the deed intended; 
 and it is for the jury, under proper in- 
 structions, to determine whether it has 
 proceeded far enough. People v. Lilley, 
 43 Mich. 521. 
 
 The intent to do corporal hurt is to be 
 ascertained by the jury from the circum- 
 stances, and may be inferred from the 
 unlawful act. Richels v. State, I Sneed 
 (Tenn.), 606; Com. v. Randall, 4 Gray 
 (Mass.), 36; Conn v. People, 116 111. 459. 
 
 And it is not necessary in a simple 
 assault that there should be the specific 
 purpose to do a particular injury, but 
 general malevolence or recklessness will 
 be sufficient. Tarver v. State, 43 Ala. 
 354; Anderson v. State, 3 Head (Tenn.), 
 455; Regina v. Fretwell, 9 Cox C. C. 
 
 471- 
 
 If a person do one wrong, intending to 
 do another, he is, as a general rule, pun- 
 ishable for the wrong done as a substan- 
 tive ofifence. Thus, if he shoot intending 
 to hit or Isill one man and hit or kill 
 another, he may be convicted for the 
 wrong to the latter. Bratton v. State, 10 
 Humph. (Tenn.) 103; State v. Meadows, 
 18 W. Va. 658. 
 
 Taking a gun in one's hands in the 
 execution of an intention of shooting, or 
 doing some' act besides so taking the gun 
 to carry such intention into execution, is 
 an assault. The offence is complete if 
 there has been an act done indicating an 
 intention coupled with ability. Higgin- 
 botham v. State, 23 Tex. 574; State v. 
 Epperson, 27 Mo. 255; State v. Mverfield, 
 Phil. (N. Car.) 108; State v. Church, 63 
 N. Car. 15; Keefe v. State, ig Ark. 190; 
 Com. V. McLaughlin, 5 Allen (Mass.), 
 507; Richels u. State, i Sneed (Tenn.), 
 606. 
 
 The intent of a person present at an 
 assault as to complicity therein is not 
 determined by his failing to express dis- 
 approval or opposition. Kuney v. Dutch- 
 er, ,56 Mich. 308. 
 
 When an indictment charges an assault 
 with intent to rob one of a watch and 
 money, proof of intent to rob either is 
 sufficient. Phillips v. State, 36 Ark. 282. 
 
 In a prosecution for an assault with a 
 deadly weapon with intent to kill, where 
 the question of motive was injportant, 
 eyiflence was admitted for the State, as to 
 
 787 
 
 whatoccurredbetween defendant and the 
 prosecuting witness aboiit a week before 
 the assault, and at a distant place in an- 
 other State. Held, no error, the facts 
 proved having some bearing on the ques- 
 tion of motive. Yanke w. State, 51 Wis. 
 464. 
 
 Where a person fired a pistol with no 
 intention of hitting .the person fired at, 
 but merely to frighten him, such person 
 may not be guilty of assault. Com. v. 
 Mann, 116 Mass. 58. 
 
 A, while a passenger in a railway car 
 filled with people, in a spirit of frolic 
 discharged a pistol, intending to shoot the 
 load into the floor of the car and thereby 
 cause a temporary fright among the pas- 
 sengers. Without any intent on A's part, 
 the ball from the pistol entered the foot 
 of the prosecutor, inflicting* a severe 
 wound. At the time of the discharge the 
 pistol was held downward, A standing in 
 the aisle and the prosecutor and other 
 persons standing behind him and in close 
 proximity to him. On the trial of A for 
 the above offence, upon an indictment 
 alleging an assault, held, that under the 
 circumstances, defendant's act being reck- 
 lessly and wilfully done, the law would 
 of itself imply malice. Smith v. Com- 
 monwealth, 100 Pa. St. 324. 
 
 A school-boy of such years and dis- 
 cretion as to be responsible for crime 
 cannot voluntarily throw a stone at a 
 comrade and hit him, though in sport 
 or play, and then defend against a charge 
 of assault and battery by urging that he 
 acted without malice or anger and ex- 
 pected his playmate to dodge, as was 
 customary, and evade the blow. Hill u. 
 State. 63 Ga. 578. 
 
 Shortly before the conclusion of a per- 
 formance at a theatre, M., with the in- 
 tention and with the result of causing 
 terror in the minds of persons leaving 
 the theatre, put out the gaslights on a 
 staircase which a large number of such 
 persons had to descend in order to leave 
 the theatre, and he also, with the inten- 
 tion and with the result of obstructing 
 , the exit, placed an iron bar across a door- 
 way through which they had in leaving 
 to pass. Upon the lights being thus ex- 
 tinguished a panic seized a large portion 
 of the audience, and they rushed in 
 fright down the staircase, forcing those 
 in front against the iron bar. By reason 
 of the pressure and struggling of the 
 crowd thus created on the staircase. Sev- 
 eral of the audience were thrown down 
 or otherwise severely injured, and 
 amongst them A and B. On proof of 
 these facts, the jury convicted M. of un- 
 lawfully and maliciously inflicting griev- 
 
Intent. 
 
 ASSAULT. 
 
 Intent. 
 
 An assault with intent may exi.st without an actual attempt. 
 There need not be a direct attempt at' violence, but indirect prep- 
 
 ous bodily harm upon A and B. Held, 
 that M. was rightly convicted. R. v. 
 Martin, L. R. 8 Q. B. Div. 54. 
 
 In an action for an assault, where it 
 appeared that the defendant and another 
 person were fighting, when the plaintiff 
 came up and took hold of the defendant 
 by the collar, in order to separate the 
 combatants, upon which the defendant 
 beat the plaintiff, it was objected to the 
 counsel for the plaintiff, who offered to 
 enter into this evidence, that it ought to 
 have been specially stated in the replica- 
 tion to the plea of son assault demesne y 
 but the objection was overruled, on the 
 ground that the evidence was not offered 
 by way of justification, but for the pur- 
 pose of showing that there was not any 
 assault, and that it was the quo animo 
 which constituted an assault, which was 
 matter to be left to the jury. Griffin v. 
 Parsons, Gloucester Lent Ass. 1754; 
 Selwin's N. P. 26, n. i. 
 
 So to lay one's hand gently on another 
 whom an officer has a warrant to arrest, 
 and to tell the officer that this is the man 
 he wants, is said to be no battery, t 
 Hawk. P. C. c. 62, s. 2. ' 
 
 So if one lays his hand gently and not 
 ip a hostile manner on another, in order 
 to attract his attention, it is not an as- 
 sault. Bac. Ab. 
 
 If one soldier hurts another by dis- 
 charging a gun in exercise, it will not be 
 a battery. Weaver v. Ward, Hob. 134. 
 
 And it is no battery if, by a sudden 
 fright, a horse runs away with his rider 
 and runs against a man. Gibbons v. 
 Pepper, 4 Mod, 405. 
 
 So where upon an indictment for 
 throwing down skins into a man's yard, 
 being a public way, by which a person's 
 eye was beaten out, it appeared by the 
 evidence that the wind blew the skin out 
 of the way, and that the injury was 
 caused by this circumstance, the defend- 
 ants were acquitted. R. v. Gill, i Str. 
 igo. 
 
 It seems also that if two, by consent, 
 play at cudgels, and one happen to hurt 
 the other, it would not amount to a bat- 
 tery, as their intent was lawful and com- 
 mendable, in promoting courage and 
 activity. Bac. Ab. 
 
 If one of two persons who are fight- 
 ing strike at the other, and hit a third 
 person unihtentibnally, this is a battery, 
 and cannot be justified on the ground 
 that it was accidental. James v. Camp- 
 bell, 5 C. & P. 372. 
 
 As the blow if it had struck the party 
 at whom it was aimed would have been 
 a battery, so it was though it struck an- 
 other person; just in the same way as if 
 a blow intended for A hit and kill B, it 
 will be murder or manslaughter, accord- 
 ing as it would have been murder or 
 manslaughter if the blow had hit A and 
 killed him. C. S. G. 
 
 In Hall V. Fearniey, 3 Q. B. gig, it 
 was held that inevitable accident arising 
 from superior agency is a defence under 
 the general issue; but that ' a defence 
 which admits that the accident resulted 
 from an act of the defendant must be 
 pleaded. In an action for assault where 
 the defendant had thrown a stick and hit 
 the plaintiff, but it did not appear that 
 he threw the stick with the intention of 
 hitting the plaintiff, Rolfe, B. , is reported 
 to have held that this was not sufficient 
 to constitute an assault, as it did not ap- 
 pear for what purpose the stick was. 
 thrown; and it was therefore fair to con- 
 clude that it was thrown for a proper 
 purpose, and that the striking of the 
 plaintiff was merely accidental. Alder- 
 son V. Waistell, I C. & K. 358. 
 
 But this ruling may Well be doubted, 
 at all events as far as relates to a civil 
 suit. I Russ. on Cr. 1023. 
 
 Words may sometimes be an important 
 ingredient in ascertaining what is the 
 intention of the party; thus they may 
 qualify what would otherwise bp an assault 
 by showing that the party intends no- 
 present corporal injury, as where a per- 
 son meeting another laid his hand upon 
 his sword, saying, " If it were not assize 
 time I would not take such language- 
 from you," for it shows that he had not 
 a design to do the party any corporal 
 hurt. Tubferville v. Savage, i Mod. 3. 
 See State v. Rawle, 65 N. Car. 334. 
 
 When a special intent, beyond the nat- 
 ural consequences of the thing done, is. 
 essential to the crime charged, such spe- 
 cial intent must be pleaded, proved, and 
 found. State v. Bloedow, 45 Wis. 27g. 
 
 An information which charges the de- 
 fendant with unlawfully and feloniously 
 making an assault upon S., " said defend- 
 ant being then and there armed with a 
 dangerous weapon, to wit, a revolver 
 pistol, with intent then and there to kill 
 and murder said S.." is not bad (on mo- 
 tion in arrest of judgment) for failing to 
 charge that the assault was made "with 
 malice aforethought." or "with a pre- 
 meditated design to kill and murder said. 
 
 788 
 
Intent, 
 
 ASSAULT. 
 
 Intent. 
 
 arations toward it will, in certain circumstances, constitute an 
 
 assault, and the intent to use force may be inferred from the cir- 
 
 cumstances.i 
 
 Where an act is done with intent to commit an assault, but the 
 
 intent is voluntarily abandoned, or is prevented while the distance 
 
 between the parties is too great to commit an actual assault, there 
 
 can be no conviction as for an assault.** 
 
 The intent need not be addressed to the party injured, as where 
 
 A shoots at B but hits C,* or without intent to injure any one in par- 
 shoots at A and in the direction of B, 
 and the ball misses A and strikes B, in- 
 flicting a wound, these facts will suffi- 
 ciently show the intention of the person 
 shooting to kill and murder B, although 
 he has no actual malice or ill-feeling 
 toward B, and he may be convicted of 
 an assault upon B with intent to kill and 
 murder him. Dunaway v. People, no 
 11!. 333; s. c, 51 Am. Rep. 686. 
 
 A fired into a crowd intending to kill 
 B, but, missing him, wounded C. Held, 
 guilty of assault with intent to commit 
 murder. State v. Gilman, 69 Me. 163; 
 s. c, 31 Am. Rep. 257. See State v. But- 
 man, 42 N. H. 490; Walker v. State, 8 
 Ind. 290. Compare Simpson v. State, 59 
 Ala. I; s. c, 31 Am. Rep. i. 
 
 The court said: " If the intent was to 
 murder another, there cannot be a con- 
 viction of the aggravated offence charged, 
 though there may be of the minor offence 
 of assault." See Barcus v. State. 49 Miss. 
 17; Jones V. State, n Smed. & M. (Miss.) 
 315; Ogletree v. State, 28 Ala. 693; Mor- 
 gan V. State, 33 Ala. 413; State v. Abram, 
 10 Ala. 928; Lacefield v. State, 34 Ark. 
 275; s. c, 36 Am. Rep. 8. 
 
 If A is indicted for shooting C with in- 
 tent to maim, disfigure, disable, and kill 
 him, and the proof is that he shot at B 
 and missed him and accidentally hit C, he 
 can be convicted on such indictment for 
 shooting C with intent to maim, disfigikre, 
 disable, and kill him ; or if A be indicted 
 for an attempt to shoot C with intent to 
 maim, disfigure, disable, and kill Wm, 
 and C is not in fact shot, and the proof 
 is that the attempt was to shoot B and 
 not C, he cannot be convicted of an at- 
 tempt to shoot C. State v. Meadows, 18 
 W. Va. 65S. 
 
 He who, intending to kill and murder 
 his enemy, mistakes in the dark a friend 
 for such enemy, and assails with a deadly 
 weapon and dangerously wounds his 
 friend, but desists from the attack upon 
 discovering the mistake, is guilty of an 
 assault " with intent to kill and murder." 
 McGehee v. State, 62 Miss. 772; s. c, 
 52 Am. Rep. 209. 
 
 When one intending to kill A shoots 
 
 S.,'' nor for failing to allege that the pis- 
 tol was "loaded with powder and a 
 ieaden bullet," Cross v. State, 55 Wis. 
 261. 
 
 Intoxication. — Drunkenness is no de- 
 fence to an action by a woman against a 
 man for assaulting her, but rather an 
 aggravation of the tprt. Reese v. Bar- 
 bee, 61 Miss. 181. 
 
 1. State V. Smith, 80 Mo. 516; State 
 V. Eddings, 71 Mo. 545; State v. Car- 
 penter, I Houst. Cr. (Del.) 367; State v. 
 Neely, 74 N. Car. 425; Regina v. Dun- 
 gey, 4 F. & F. 102 and note; i Selw. N. 
 P. 27; Bull. N. P. 15; 3 Chitty Crim. 
 Law, 821. 
 
 Where the prisoner decoyed a female 
 under ten years of age into a building, 
 and was detected within a few feet of her 
 in a state of indecent exposure, although 
 he had not touched her, held, that he was 
 properly convicted of assault with intent 
 to commit a rape. Hays v. People, i 
 Hill, 351. 
 
 The prosecutrix awoke; she found the 
 defendant in bed with her, holding her 
 by the v/rist, and he escaped when she 
 called on the family for help. It was held 
 there was evidence sufficient to convict 
 him of an assault with intent to ravish. 
 Carter v. State, 35 Ga. 263. 
 
 In State v. Morgan, 3 Ired. (N. Car.) 
 186, one C, a constable, had, under an 
 execution, seized a gun of the defendant's, 
 and had it in possession in his yard when 
 the latter came up with an uplifted axe in 
 his hands, and, within striking distance, 
 demanded its return or he would strike. 
 The gun was not delivered up, but a par- 
 ley ensued and an arrangement was 
 made. This was declared to be an attack 
 begun, and it was not the less so because 
 not carried into complete execution, the 
 principle being that such a use of a deadly 
 weapon to enforce performance of some 
 required act, when the act is done, is it- 
 self an assault. 
 
 2. People V. Lilley, 43 Mich. 521. Com- 
 pare Hays' «/. People, i Hill (N. Y.), 351. 
 
 3. Wharton's Cr. L. §§ 965, 997. 
 Shooting One with Intent to Kill An- 
 other. — Where a person deliberately 
 
 789 
 
Intent. 
 
 ASSAULT. 
 
 Assault upon Several, 
 
 ticular, as firing into a crowd. ^ An assault upon a house will be re- 
 garded as an assault on the person, when the purpose of the assault 
 is injury to the person of the occupant or members of the family.** 
 
 The intent must be a present one, and not an intention to inflict 
 an injury at some other or future time.^ 
 
 The ability to do the act must concur with the intent ;* the abil- 
 ity need only be. appearent, not perfect.** 
 
 7. Assault upon Several. — An indiscriminate assault upon several 
 persons is an assault upon each individual.** 
 
 and wounds B, or if it be doubtful which 
 he shoots at, he cannot be convicted 
 of an assault with intent to kill B. Lace- 
 field V. State, 34 Ark. 275; s. u., 36 Am. 
 Rep. 8. 
 
 A and B are fighting, and A uninten- 
 tionally hits C. A is guilty of assault^ 
 James v. Campbell, 5 C. & P. 372. 
 
 1. State V. Myers, 19 Iowa, 517. 
 
 A boy about 13, in sport, but wantonly, 
 threw a piece of mortar at another boy, 
 which accidentally hit a third boy and in- 
 jured his eye. Held, an assault. Peter- 
 son V. Haffner, 59 Ind. 130; s. c, 26 Am. 
 Rep. 81. See Conway v. Reed, 66 Mo. 
 346; s. c, 27 Am. Rep. 354, a case of 
 shooting by a boy. 
 
 S. State V. Patterson, 45 Vt. 308; Cow- 
 ley V. State-, 10 Lea (Tenn.), 282. 
 
 That an assault may be committed on 
 one in a house who is not seen or known 
 to be there, as if one were wantonly to 
 fire a loaded gun, and the ball should 
 pass through a house where persons were, 
 it might be an assault on all of them. 
 Cowley V. State, 10 Lea (Tenn.), 282; 
 Header v. Stone, 7 Mete. (Mass.) 151. 
 
 A person who shoots a ball from a 
 loaded pistol through the door of a dwell- 
 ing-house, intending to assault a particu- 
 lar individual as the supposed occupant, 
 commits an assault upon the actual oc- 
 cupant although a different individual. 
 Cowley V. State, 10 Lea (Tenn), 282. 
 
 The besetting of a house is a construc- 
 tive, not an actual, assault. Evans v. 
 State, I Humph. (Tenn.) 399; State v. 
 Freels, 3 Humph. (Tenn.) 228. 
 
 So, the shooting into a house for the 
 purpose of injuring an inanimate object, 
 as an obnoxious transparency in a win- 
 dow, with no design of personal injury, 
 may not be an assault. U. S. v. Hand, 
 2 Wash. C. C. 435. 
 
 3. Fondren !>. State, 16 Tex. App. 48; 
 Johnson v. State, 43 Tex. 576; People v. 
 Lilley, 43 Mich. 521. 
 
 4. Wharton's Cr. Law, § 1244; Bish- 
 op's Cr. Law, §§ 668-693; State v. Black- 
 well, 9 Ala. 79; Beasley v. State, 18 Ala. 
 535; Shaw V. State, 18 Ala. 547; Lawsoh 
 V. State, 30 Ala. 14; Johnson v. State, 35 
 
 Ala. 363; Mullen v. State, 45 Ala. 43; s. 
 c, 6 Am. Rep. 691; Higginbotham v, 
 State, 23 Tex. 574; McKay v. State, 44 
 Tex. 43; People v. Yslas, 27 Cal. 630; 
 State w. Epperson, 27 Mo.. 255; State v. 
 Myerfield, Phil. (N. Car.) 108; State v.. 
 Church, 63 N. Car. 15; State w, Bryson, i 
 Wins. No. 2 (N. Car.) 86; State v. Davis, 
 I Ired. L. (N. Car.) 125; s. c, 35 Am. 
 Dec. 735; State v. Crow, i Ired. L. (N. 
 Car.) 375; State v. Morgan, 3 Ired. (N. 
 Car.) 186; Woodruff v. Woodruff, 22 Ga. 
 237; Smith V. State, 39 Miss. 521; Com. 
 V. Eyre, i Serg. & R. (Pa.) 347; State v. 
 Benedict, 11 Vt. 236; s. c, 34 Am. Dec. 
 688; People v. Bransby, 32 N. Y. 525. 
 
 Where the plaintiff was in the defend- 
 ant's workshop and refused to leave it, 
 and the defendant and his workmen sur- 
 rounded him and, tucking up their 
 sleeves and aprons, threatened to break 
 his neck if he did not go out, and fearing 
 that the men would strike him if he did 
 not do so, the plaintiff went out; it was 
 held that this was an assault; for there 
 was a threat of violence exhibiting an in- 
 tention to assault, and a present ability 
 to carry the threat into execution. Read 
 ■V. Coker, 13 C. B. 850. 
 
 5. Mullen v. State, 45 Ala. 43; s. c, 6 
 Atri. Rep. 691. 
 
 Where the accused presented a loaded 
 gun and snapped it three times, but there 
 was no cap on it, the court charged the 
 jury that the absence of the cap would not 
 avail the accused if he supposed it was on 
 the gun, but the jury must be satisfied, 
 beyond all reasonable doubt, that he did 
 not know there was no cap on the gun; 
 Held, correct. See U. S. v. Kierraan, 3 
 Cranch. C. C. 435. 
 
 Where the defendant was not within 
 striking distance. People v. Yslas, 27 
 Cal. 633. 
 
 Where defendant enticed a girl into a 
 building for the purpose of committing 
 an indecent assault, but being discovered, 
 he desisted. Hays v. People, i Hill (N. 
 Y.), 351. See Keefe v. State, 19 Ark. 
 190; Richels V. State, i Sneed (Tenn.), 
 606. 
 
 6. State V. Nash, 86 N. Car. 650. Com- 
 
 790 
 
striking Distance. 
 
 ASSAULT. 
 
 Heed not be Immediate, 
 
 8. Striking Distance. — If one rushed upon another, or pursues 
 him with intent to strike, and in a threatening attitude, but is 
 stopped immediately before he was within reach of the person 
 aimed at, it is an assault.^ 
 
 9. Need not be Immediate. — It is not necessary that the assault 
 should be immediate.* 
 
 pare State v. Damon 2 Tyler (Vt.), 390. 
 This case is criticised in Bennett & 
 Heard Lead. Cas. 534. 
 
 It appears to have been formerly holden 
 that a person could not be prosecuted 
 upon one indictment for assaulting two 
 persons, each assault being a distinct 
 offence. But the case has been subse- 
 quently treated as one which was not well 
 considered; and the court said, "Cannot 
 the king call a man to account for a 
 breach of the peace because he broke 
 two heads instead of one ?" i Russ. on 
 Cr. (gth Am. Ed.) 1030, citing R. .w. Ben- 
 field, 2 Burr, 984. See Kenney v. State, 
 5 R. I. 385; State V. McClintock, 8 Iowa, 
 203. 
 
 i. 3 Greenl. Ev. § 59. See People v. 
 Lilley, 43 Mich. 521; State v. Davis, i 
 Ired. (N. Car.) 125; s. c, 35 Am. Dec. 
 735; State V. Rawles, 65 N. Car. 334; 
 State V. Vannoy, 65 N. Car. 632; People 
 V. Yslas, 27 Cal. 630. Compare State v. 
 Blackwell, 9 Ala. 79; McKay v. State, 44 
 Tex. 43; State v. Yancey, 74 N. Car. 244; 
 Cobbett V. Grey, 4 Exch. 744. 
 
 It is not every threat, where there is no 
 actual personal violence, that constitutes 
 an assault; there must in all cases, be the 
 means of carrying the threat into effect.' 
 If, therefore, a party be advancing in 
 a threatening attitude, e.g., with his fist 
 clenched, to strike another, so that his 
 blow would almost immediately have 
 reached such person, and be then 
 stopped, it is an assault in law, if his in- 
 tent was to strike such person, though 
 he was not near enough at the time to 
 have struck him. i Russ. on Cr. (gth 
 Am. Ed.) 1020. 
 
 Picking up- an axe within twenty-five 
 yards of the prosecutor without an offer 
 or attempt to use it is not an assault. 
 State V. Blackwell. 9 Ala. 79. 
 
 The plaintiff was walking on a footpath 
 by a roadside, and the defendant, who 
 was on horseback, rode after him at a 
 quick pace; the plaintiff then ran away 
 into his own garden, and the defendant 
 rode up to the gate, and shook his whip 
 at the plaintiff, who was about three 
 yards off; it was held, that if the defend- 
 ant rode after the plaintiff, so as to com- 
 pel him to run into his garden for shelter 
 to avoid being beaten, it was an assault. 
 
 791 
 
 Mortin v. Shoppee, 3 C. & P. 373; State 
 V. Sims, 3 Strob. (S. Car.) 137. 
 
 It is not an assault to fire a gun at a 
 person if he is not within carrying dis- 
 tance of the weapon. Shaw v. State, 18 
 Ala. 547; Tarver v. State, 43 Ala. 354; 
 Lawson v. State, 30 Ala. 14. 
 
 The evidence was to the effect that de- 
 fendant pointed a loaded rifle at one W. 
 and threatened to shoot him if he did not 
 leave a certain field of which he was in 
 possession, and in which he was at work, 
 and that defendant and W. were then 
 from thirty to fifty feet apart. There was 
 no evidence as to whether one with a 
 gun so loaded and at the distance stated 
 from another could have killed or 
 maimed the latter. Held, that the court 
 rightly refused to instruct the jury, for 
 the defendant, that, if they should believe 
 from the evidence that on account of the 
 distance between the parties at the time, 
 a discharge of the rifle by defendant, 
 loaded as charged, could not have killed 
 or maimed W., they should acquit. Statfe 
 V. Sears, 86 Mo. 169. 
 
 A, who was beyond carrying distance, 
 pointed a pistol at B in a threatening 
 manner. Held, not an assault. State v, 
 Yancey, 74 N. Car. 244. 
 
 A was advancing in a threatening at- 
 titude, with an intention to strike B, so 
 that his blow would have almost im- 
 mediately reached B.. if he had not been 
 stopped. Held, that it was an assault in 
 point of law, though at the particular 
 moment when A was stopped he was 
 not near enough for his blow to take 
 effect. Stephens v. Myers, 4 C. & P. 349. 
 
 2 As where a defendant threw a 
 lighted squib into a market-place, which 
 being tossed from hand to hand by dif- 
 ferent persons, at last hit the plaintiff in 
 the face and put out his eye, it was ad- 
 judged that this was actionable as an as- 
 sault and battery. Scott v. Shepard, 2 
 Black. 8g2. 
 
 And the same has been holden where 
 a person pushed a drunken man against 
 another, and thereby hurt him. Short 
 ■V. Love joy. Bull. N. P. 16. 
 
 But if such person intended doing a 
 right act, as to assist the drunken man, 
 or to prevent him from going along the 
 street without help, and in so doing a. 
 
Lawful Force. 
 
 ASSAULT. 
 
 By an Officer. 
 
 10. Lawful Force. — In some cases force used against the person 
 of another may be justified, and will not amount to an assault and 
 battery.i 
 
 11. By an Officer. — An officer has no right to use force upon the 
 person of a defendant on whom he is making service, for the pur- 
 >pose of identifying him.'-* 
 
 In cases where officers have authority to arrest, their laying 
 hands upon persons in order to do so is no battery in law. (See 
 also Arrest.) 
 
 An officer who arrests a drunken man without warrant, locks 
 him up till sober, and then discharges him without taking him be- 
 fore a magistrate, is guilty of assault.' 
 
 hurt ensued, he would not be answerable. 
 Short V. Lovejoy, Bull. N'. P. i6. 
 
 1. Thus, if an officer having a warrant 
 against one who Will not suffer himself 
 ito be arrested, beat or wound him in the 
 attempt to take him; or if a parent in a 
 reasonable manner chastise his child, or 
 a master his servant, being actually in 
 his service at the time, or a schoolmaster 
 his scholar, or a jailer his prisoner, or if 
 one confine a friend who is mad, and 
 bind and beat him, etc., in such a man- 
 ner as is proper in such circumstances; 
 or if a man force a sword from one who 
 offers to kill another therewith; or if a 
 man gently lay his hands upon another, 
 and thereby stay him from inciting a dog 
 against a third person, no assault or bat- 
 tery will be committed by such acts. So 
 if A beat B (without wounding him, or 
 throwing at him a dangerous weapon), 
 who is wrongfully endeavoring, with vio- 
 lence, to dispossess him of his lands, or 
 of the goods, either of hinjself or of any 
 other person, which have been delivered 
 to him to be kept, and will not delist 
 -upon A's laying his hands gently upon 
 him, and disturbing him; or if a man 
 beat, wound, or maim one who is mak- 
 ing an assault upon his own person, or 
 that of his wife, parent, child, or master; 
 or if a man fight with, or beat one who 
 attempts to kill any stranger; in these 
 >cases also it seems that the party may 
 justify the assault and battery. It has 
 been holden that a master may not justify 
 ' an assault in defence of his servant, be- 
 cause he might have an action for the 
 loss of his service; but a different opin- 
 ion has been entertained on this poiht; 
 and in one case Lord Mansfield said, " I 
 ■cannot say that a master interposing, 
 when his servant is assaulted, is not jus- 
 tifiable under the circumstances of the 
 •case ; as well as a servant interposing for 
 his master; it rests on the relation be- 
 tween master and servant. It is said 
 that a servant may not justify beating 
 
 another in defence of his master's son, 
 though he were commanded to do so by 
 the master, because he is not a servant 
 to the son; and that, for the like reason, 
 a tenant may not beat another in defence 
 of his landlord. A wife may justify an 
 assault in defence of her husband. An 
 upper 'servant cannot justify beating an 
 under servant for disobedience of orders. 
 I Russ. on Cr. (gth Am. Ed.) 1026. 
 
 A railway servant may use force to re- 
 move a passenger who refuses to pay his 
 fare, or is guilty of misconduct. State v. 
 Gould, 53 Me. 279; Hilliard v. Gould, 34 
 N. H. 230; s. c, 66 Am. Dec. 765; Hous- 
 ton & Texas Cent. R. Co. v. Ford, 53 
 Tex. 364; Lilies v. St. Louis, etc., R. Co., 
 64 Mo. 464; Ohio, etc., R. Co. v. Muhl- 
 ing, 30 III. 9: Great Western R. Co. zk 
 Miller, ig Mich. 305; Haley v. Chicago, 
 etc., R. Co., 21 Iowa, 15; Chicago, etc., 
 R. Co. V. Boger, i Bradw. (111.) 472; 
 O'Brien v. Boston, etc., R. Co., 15 Gray 
 (Mass.), 20; s. c, 77 Am. Dec. 347; Peo- 
 ple V. Gibson, 3 Park Cr. C. (N. Y.) 234; 
 Chicago, etc., R. Co. v. Peacock, 48 111. 
 253; 111. Cent. R. Co. v. Sutton, 53 111. 
 397; Fulton v. Grand Trunk R. Co., 17 
 U. Can. Q. B. 428; Johnson v. C. R. 
 R., 64 N. H. 213; Com. V. Power, 7 
 Mete. (Mass.) 596; s. c, 41 Am. Dec. 
 465; Stephen v. Smith, 29 Vt. 160; New 
 York, etc., R. Co., 36 Conn. 287; State v. 
 Campbell, 32 N.J. 309. See also Assaults 
 BY Railway Servants, post, p. 809. 
 
 8. Hull V. Bartlett, 49 Conn. 64. 
 
 An ofiicer attempting to execute pro- 
 cess may defend himself against violence 
 without being guilty of an assault. Peo- 
 ple V. Galick, Hill & D. (N. Y.) 229. See 
 Faris v. State, 3 Ohio St. 159; State v. 
 Richardson, 38 N. H. 208; State t-. Web- 
 ster, 39 N. H. 96; Com. V. Presby, 14 
 Gray (Mass.), 65; Galvin v. State, 6 
 Coldw. (Tenn.) 283. 
 
 3. State V. Parker, 75 N. Car. 249; s. 
 u., 22 Am. Rep. 669; Brock v. Stimson, 
 108 Mass. 520; s. c, n Am, Rep. 390. 
 
 793 
 
B; an Officer. 
 
 ASSAULT. 
 
 By an Officer, 
 
 An officer having authority to execute criminal warrants may 
 arrest a person charged with felony without a warrant upon in- 
 formation given by others, but he does so at his peril ; for, unless 
 he has reasonable grounds for believing the person arrested to 
 be guilty of a felony, he will be liable for assault.* (See also 
 Arrest.) 
 
 If an officer use excessive force in making an arrest, he is guilty 
 of assault.'-* (See also Arrest.) 
 
 rant, and no more. R. v. Milton, M. & 
 M. 107., 
 
 If a justice make a warrant to J. S. 
 to arrest J. D., and J. N. comes in aid 
 of J. S., and gently puts his hands on 
 the shoulders of J. D. and says, "this is 
 the man," this is no battery. Wilson 
 V. Dodd, 2 Roll. Abb. 546. 
 
 There may be cases in which a person 
 may justify laying hands upon another in 
 order to serve him with civil process. 
 Harrison v, Hodgson, 10 B. & C. 445. 
 
 A police officer in arresting one for 
 violating a city ordinance was indicted 
 for an assault. The prosecutor alleged 
 that the force used was excessive, and 
 the judge charged the jury if such was 
 the case the defendant was guilty, but 
 failed to call their attention to the good 
 faith in which the officer claims to have 
 acted. Held, error. The amount of 
 force necessary to make the arrest is left 
 to the judgment of the officer when act- 
 ing within the scope of his general pow- 
 ers and actuated by no ill-will or malice. 
 State V. McNinch, 90 N. Car. 695, 
 
 A warrant for the arrest of the defend- 
 ant in a civil action in justice's court, if 
 issued upon an insufficient affidavit, con- 
 stitutes no ground of defence in favor of 
 the party procuring it, in an action against 
 him for an assault and battery committed 
 in an attempt to execute the warrant. 
 But if such warrant was regular upon 
 its face it is a protection to the person, 
 not a party to the action in whicli it was 
 issued, who took no part in procuring it 
 and had no knowledge of the facts in re- 
 lation to the issuance thereof except what 
 appeared from the warrant itself, and 
 who, having been duly empowered by 
 the justice to execute the warrant, was 
 not guilty of any abuse of process. Mud- 
 rocl£ V. Killips, 65 Wis. 622. 
 
 A complaint in a civil action charged 
 the defendant with assaulting and beating 
 the plaintiff. The defendant made an- 
 swer, by way of justification, that he was 
 a constable, and did the acts in the exe^ 
 cution of his office, using no more force, 
 than was necessary. The court found 
 the allegations of both complaint and an- 
 swer true, and rendered judgment for 
 
 1. Wakeley v. Hart, 6 Binn. (Pa.) 316; 
 Com. V. Deacon, 8 Serg. & R. (Pa.) 49. 
 
 This subject is fully treated under Ar- 
 rest. 
 
 If a person resists an attempt to arrest 
 him for a misdemeanor, which was not 
 committed in the presence of the officer, 
 such resistance will not be an assault. 
 Com. V. Bryant, 9 Phila. (Pa.) 395. 
 
 2. The force used must be only so 
 great as is necessary for the purpose of 
 effecting the object in view, and if there 
 be an excess of violence the officer will 
 be guilty of an assault. If therefore a 
 constable is preventing a breach of the 
 peace, and any person stands in the way 
 with intent to prevent him from so doing, 
 the constable is justified in taking such 
 person into custody, but not in striking 
 him. Levy v. Edwards, i C. & P. 40. 
 
 So where one of the marshals of the 
 city of London, whose duty it was on the 
 day of a public meeting in Guildhall, to 
 see that a passage was kept for the transit 
 of the carriages of the members of the 
 corporation and others, directed a person 
 in the front of the crowd to stand back, and 
 on being told by him that he could not 
 for those behind him, struck him imme- 
 diately on the face, saying that he would 
 make him, it was held that a more mod- 
 erate degree of pressure ought to have 
 been exercised, and some little time 
 given to remove the party in a more 
 peaceable way, and that consequently the 
 marshal had been guilty of too violent an 
 exertion of his authority. Imason v. 
 Cope, 5 C. & P. 193. 
 
 An officer is entitled to the possession 
 of the warrant under which he acts, and 
 if he deliver it to the party against whom 
 it is issued, and he refuse to redeliver it, 
 the officer may use so much force as is 
 necessary to get possession of it again. 
 An officer having a warrant to search for 
 an illegal still in the defendant's house, 
 the defendant asked to see the warrant, 
 and it was given him, and he then refused 
 to return it, upon which the officer en- 
 deavored by force to retake it, and a 
 scufHe ensued, it was held that the of- 
 ficer was justified in using so much vio- 
 lence as was necessary to retake the war- 
 
 793 
 
Lawful Chastisement. 
 
 ASSAULT. 
 
 Lawful Chastisement. 
 
 12. lawful Chastisement. — A parent may ini a reasonable manner 
 chastise his child, or a schoolmaster his scholar, or a jailer his 
 prisoner.* 
 
 the plaintiff. Held, that this was a find- 
 ing of the issue for the defendant, and 
 that judgment should have been rendered 
 on it for him. Powers v. Mulvey, 51 
 Conn. 432. 
 
 1. Hawlc. P. C. b. 1, c. go, s. 23; State 
 V. Nefif, 58 Ind. 516; s. c, 2 Am. Cr. R. 
 176; Landus v. Seaver, 32 Vt. 114; Com. 
 V. Randall, 4 Gray, 36; State v. Hull, 34 
 Conn. 132; State?/. Mizner, 45 Iowa, 238; 
 s. c, 24 Am. Rep. 769; Snowden v. State, 
 12 Tex. App. 105; Dowlin v. State, 14 
 Tex. App. 63; Anderson v. State, 3 Head 
 (Tenn.), 455; Forde v. Skinner, 4 C. & 
 P. 494. 
 
 In all cases of chastisement it mlust, in 
 order to be justifiable, appear to have 
 been reasonable. I East P. C. 406. 
 
 And the law as above stated with re- 
 spect to children is said to have reference 
 only to such children as are capable of 
 appreciating correction, and not to in- 
 fants only two and a half years old. R. 
 V. Griffin, 11 Cox C. C. 402. 
 
 By Schoolmaster. — In Dowlen v. State, 
 14 Tex. App. 61, where a teacher severe- 
 ly whipped a boy of thirteen years of 
 age, the court said: "Violence used to 
 person is not ui^lawful, and does not 
 amount to an assault and battery in the 
 exercise of moderate restraint or correc- 
 tion given by law to the parent over the 
 child, the guardian over the ward, the 
 master over his apprentice, the teacher 
 over the scholar. In all such cases the 
 law presumes, from the relation of the 
 parties, an entire absence of any criminal 
 or unlawful intent to injure; and in order 
 to effect lawful purposes permits the pa- 
 rent, guardian, master, or teacher to re- 
 strain and correct the child, ward, appren- 
 tice, and scholar. When the teacher cor- 
 rects his scholar the presumption is that 
 it is in the exercise and within the 
 bounds of his lawful authority, and it 
 does not devolve on him to show acci- 
 dent or his intention; neither is it any 
 criterion of his act or intention that bod- 
 ily pain, constraint, a sense of shame or 
 other disagreeable emotion of the mind 
 is produced. He has the right under the 
 law to inflict moderate corporal punish- 
 ment for the purpose of correcting or re- 
 straining the refractory pupil. But where 
 violence is permitted to effect a lawful 
 purpose only that degree of force must be 
 used which is necessary to effect such 
 purpose. 
 
 "If the correction was moderate, de- 
 
 fendant was not guilty of an assault and 
 battery at all. If it was not moderate, 
 but excessive, he was guilty of an ag- 
 gravated assault and battery, by having 
 exceeded the boundary of his legal right 
 as teacher, and placed himself in the at- 
 titude of a stranger. It is true the law 
 has not laid down any fixed measure of 
 moderation in the lawful correction of a 
 scholar," nor is it practicable to do soj 
 Whether it is moderate or excessive must 
 necessarily depend upon the age, sex,' 
 condition, and disposition of the scholar^ 
 with all the attending and surroundinge 
 circumstances, to be judged of by the 
 jury, -Tlnder-the direction. of the court as 
 to the law of the case." Dowlen v. State,; 
 ,14 Tex. App. 61; Stanfield' v. State, 43 
 Tex.. 167. 
 
 In State v. Pendergrass, 2 Dev. & Bat. 
 365, the court said: " Within, the sphere' 
 of authority, the master is the judge 
 when correction is necessary and of the 
 degree of correction necessary; and like 
 all others entrusted with a discretion, he 
 cannot be made penally responsible for 
 error of judgment, but only for wicked- 
 ness of purpose. . . . B\it the master- 
 may be punishable when he does not 
 transcend the powers granted if he grossly 
 abuse them. If he use his authority as a 
 cover for malice, and, under pretence of 
 administering correction, gratify his own 
 bad passions, the mask of the judge shall 
 be taken off, and he will stand amenable 
 to justice as an individual not invested' 
 with judicial po wer. "^ ' j, ^ 
 
 In Lander v. Seaver, 32 Vt. 114, the 
 court said: "A schoolmaster has the 
 right to inflict reasonable corporal pun- 
 ishment. He must exercise reasonable 
 judgment and discretion in determining 
 when to punish and to what extent. la 
 -determining what is a reasonable pun- 
 ishment various considerations must be 
 regarded; the nature of the offence, the 
 apparent motive and disposition of the 
 oft'ender, the influence of his example 
 and conduct upon others, and the sex, 
 age, size, and strength of the pupil to be 
 punished. Among reasonable persons, 
 much difference prevails as to the circum- 
 stances which will justify the infliction of 
 punishment and the extent to which it 
 may properly be administered. On ac- 
 count of this difference of opinion, and 
 the difficulty which exists in determining 
 what is a reasonable punishment, and the 
 advantage which the master has by being 
 
 794 
 
Lawful Chastisement. 
 
 ASSAULT. 
 
 Lawful Chastlsemeut. 
 
 By Schoolmaster — Continued. 
 on the spot to know all the circumstances, 
 the manner, look, tone, gestures, and 
 language of the offender, which are not 
 always easily described, and thus to form 
 a correct opinion as to the necessity and 
 extent of th'e punishment, considerable 
 allowance should be made to the teacher 
 by the way of protecting him in the ex- 
 ercise of his discretion. Especially should 
 he have this indulgence when he appears 
 to have acted from good motives, and not 
 from anger and malice. Hence, the 
 teacher is not to be held liable on the 
 ground of the excess of punishment un-, 
 less the punishment is clearly excessive, 
 and would be held, so in the general judg- 
 ment of reasonable men. If the punish- 
 ment be thus clearly excessive, then the 
 master would be liable for such excess, 
 though he acted from good motives in in- 
 flicting the punishment, and in his own 
 judgment considered it necessary and not 
 excessive. But if there be any reason- 
 able doubt whether the punishment was 
 excessive, the master should have the 
 benefit of the doubt." Approved in Pat- 
 terson V. Nutter, 8 Eastern Repr. (Me.) 
 662. 
 
 A schoolmaster who'on the second day 
 of a boy's return to school wrote to his 
 parent proposing to beat him severely, in 
 order to subdue his alleged obstinacy, 
 and on receiving the father's reply as- 
 senting thereto, beat the boy for two 
 hours and a half secretly in the night, 
 and with a thick stick, until he died, is 
 guilty of manslaughter. R. v. Hopley, 
 2 F. & F. 202. 
 
 The defendant, who was the superin- 
 tendent of a private school, whipped a 
 boy who was a pupil in the school, and 
 was prosecuted for an assault and battery 
 committed in whipping the boy. On the 
 trial of the cause the defendant was a 
 witness in his own behalf. Held, that the 
 court erred in refusing to allow the de- 
 fendant, in answer to a question pro- 
 pounded by his counsel, to testify to the 
 whole transaction and explain the circum- 
 stances of his punishment of the boy, 
 and the offence for which the punishment 
 was inflicted. Danenhoffer v. State, 79 
 Ind. 75. 
 
 A girl over twenty-one, by pretending 
 that she was under age, obtained admis- 
 sion to a school. While there she was 
 whipped for bad conduct by the master. 
 On a prosecution for assault against the 
 master, held, that the girl, having been 
 guilty of fraud m obtaining admission to 
 the school, could not set up her majority 
 in answer to the schoolmaster's right of 
 chastisement of an infant scholar State 
 
 V. Mizner, 45 Iowa, 248; s. c, 24 Am. 
 Rep. 769. 
 
 Though a schoolmaster has in general 
 no right to punish a pupil for misconduct 
 committed after the dismissal of school 
 for the day, and the return of the pupil 
 to his home, yet he may, on the pupil's 
 return to school, punish him for any 
 misbehavior, though committed out of 
 school, which has a direct and immediate 
 tendency to injure the school and to sub- 
 vert the master's authority. Lander v.. 
 Seaver, 32 Vt. 114; s. c, 76 Am. Dec. 156. 
 
 In an action for assault and battery by 
 a pupil against his teacher, based upon 
 corporal punishment inflicted in school, 
 the court instructed the jury that the de- 
 fendant would not be liable unless the 
 punishment was so clearly excessive 
 " that all hands at once say it was exces- 
 sive," or that "all hands would instinct- 
 ively rise up and say, ' that is excessive, 
 that is beyond judgment.'" Held, error. 
 Patterson v. Nutter, 8 East. Repr. (Me.> 
 652. 
 
 A master has the right to remove an 
 unruly scholar from the schoolhouse, 
 and a person doing so at the master's re- 
 quest will not be guilty of assault. State 
 V. Williams, 27 Vt. 755. 
 
 The manager of the lessee of convicts 
 for misdemeanors cannot, of his own au- 
 thority, award and inflict corporal punish- 
 ment on one of the leased convicts for a 
 refusal to work or for a violation of 
 duty or good order. Cornell v. State, 
 6 Lea (Tenn.), 624. Compare Prewitt v. 
 State, 51 Ala. 33. 
 
 The superintendent of a county poor- 
 house may use a proper degree of force 
 to preserve order among the inmates. 
 State V. Neff, 58 Ind. 516; s. c, 2 Am. 
 Cr. R. 176. 
 
 Where a master of a union inflicts per- 
 sonal chastisement on a female pauper in 
 an indecent manner, he is guilty of an 
 assault, even though the extent of the 
 correction is within the limits of moder- 
 ation. R. V. Miles, 6 Jur. 243. 
 
 If parish officers cut off the hair of a. 
 pauper in the poor-house by force and 
 against the will of such pauper, this is an 
 assault; and if it be done as matter of 
 degradation, and not with a view to clean- 
 liness, that wiSl be an aggravation and go 
 to increase the damages. Forde v. Skin- 
 ner, 4 C. & P. 437. 
 
 By Parent. — If a father beats his son for 
 theft so severely with a rope that he dies, 
 it is only manslaughter. Anon., i East 
 P. C. 261. 
 
 An infant two years of age is not ca- 
 pable of appreciating correction: a father; 
 
 795 
 
Defence of Person or Property. ASS A ULT. Defence of Person or Property. 
 
 13. Defence of Person or Property. — A blow or other violence 
 necessary for the defence of a man's person against the violence 
 ■of another will not constitute a battery. Thus, if A lift up his 
 stick and offer to strike B, it is a sufficient assault to justify B in 
 striking A; for he need not stay till A has actually struck him.* 
 (See also Self-defence.) 
 
 therefore, is not justified in correcting it, 
 and if the infant dies owing to such cor- 
 rection, the father is guilty of manslaugh- 
 ter. R. V. Griffin, ii Cox G. G. 402. 
 
 In Loco Parentis. — A brother who pro- 
 "vides a sister of fifteen with lodging, 
 ■clothing, and schooling may inflict mod- 
 ■erate correction. Snowden v. State, 12 
 Tex. App. 105; s. c, 41 Am. Rep. 667. 
 
 A stepfather who supports his stepchild 
 IS in loco parentis and may reasonably 
 ■chastise the child to enforce his authority. 
 Gorman v. State, 42 Tex. 221; State v. 
 Alvord, 68 N. Car. 322. 
 
 Where a person in loco parentis inflicts 
 corporal punishment on a child, and com- 
 pels it to worl£ for an unreasonable num- 
 ber of hours, and beyond its strength, 
 and the child dies, the death being of con- 
 sumption, but hastened by the ill-treat- 
 ment, it will not be murder, but only 
 manslaughter, in the person inflicting the 
 punishment, although it was cruel and 
 excessive, and accompanied by violent 
 and threatening language, if such person 
 believed that the child was shamming ill- 
 ness and was really able to do the quan- 
 tity of work required. R. v. Gheeseman, 
 7 C. & P. 454- 
 
 Army. — A defendant may justify even 
 a mayhem, if done by him as an officer 
 of the army for disobedience of orders, 
 and he may give in evidence the sentence 
 of a council of war, upon petition against 
 him by the plaintiff; and if by the sen- 
 tence the petition is dismissed, it will be 
 conclusive evidence in favor of the de- 
 fendant. Lane v. Degberg, B. N. P. 19. 
 
 Servant.— A master has no implied au- 
 thority to whip a minor servant hired to 
 him by the servant's father. Cooper v. 
 State, 8 Baxt. (Tenn.) 324; s. c, 35 Am. 
 Rep. 704. 
 
 Husband and Wife. — At the common 
 law the husband possessed the power of 
 chastising his wife, though the tendency 
 of the criminal courts in the present day 
 is to regard the marital relation as no de- 
 fence to a battery. Wharton's Gr. L. 
 (gth Ed.) § 633. 
 
 In Bradley v. State, i Walker (Miss.), 
 156, the court said, " Perhaps, however, 
 the husband should still be permitted to 
 exercise the right of moderate chastise- 
 ment in cases of great emergency, and to 
 
 use salutary restraints in every case of 
 misbehavior, without subjecting himself 
 to vexatious prosecutions, resulting in 
 the discredit and shame of all parties con- 
 cerned." See State v. Rhodes, Phill. 
 (N. Gar.) 453; Robbins v. State, 20 Ala. 
 36; Fulgham v. State, 46 Ala. 143; Greta 
 V. State, 10 Tex. App. 36. 
 
 But the better opinion is that a hus- 
 band has no right to inflict corporal pun- 
 ishment on his wife. Wharton's Cr. L. 
 (gth Ed.) § 633. See Com. v. McAfee, 
 108 Mass. 458; s. c, II Am. Rep. 383; 
 Gorman v. State, 42 Tex. 221; Owen v. 
 State, 7 Tex. App. 329; People v. Win- 
 ters, 2 Park. Cr. (N. Y.) 10; Perry v. _ 
 Perry, 2 Paige (N. Y.), 501; Edmond's 
 App., 57 Pa. St. 232; James v. Common- 
 wealth, 12 S. & R. (Pa.) 220; State v. 
 Buckley, 2 Harr. (Del.) 552; State v. 
 Oliver, 70 N. Car. 60; Taylor v. Taylor, 
 76 N. Car. 433; Bradley v. State, i Miss. 
 156; Gholston fe. Gholston, 31 Ga. 625; 
 Fulgham v. State, 46 Ala. 143: Trow- 
 bridge V. Carlin, 12 La. Ann, 882; Pillar 
 V. Pillar, 22 Wis. 656; Knight v. Knight, 
 31 Iowa, 451; Poor v. Poor, 8 N. H. 307; 
 s. c, 29 Am. Dec. 664; Shackett v. Shack- 
 ett, 40 Vl. 195. 
 
 The punishment must not be for pre- 
 vious misconduct. Slate v. Hull, 34 
 Conn. 132. 
 
 The presumption is that the punish- 
 ment was proper and reasonable, and the 
 burden is on the prosecution to prove 
 that it was excessive. Anderson v. State, 
 3 Head (Tenn.), 455. 
 
 And if there is any reasonable doubt 
 that the chastisement was excessive, the 
 master should have the benefit of it. 
 Lander -v. Seaver, 32 Vt. 114; s. c, 76 
 Am. Dec. 156. 
 
 1. B. N. P. 18. See State v. Patter- 
 son, 45 Vt. 308; Com. Kennard, 8 Pick. 
 (Mass) 133; Baldwin v. Hayden, 6 Conn. 
 455 ; Gyre v. Culver, 47 Barb. (N. Y.) 
 592; Pond V. People, 8 Mich. 150; Davis 
 V. Whitridge, 2 Strob. (S. Car.) 232. This 
 subject will be fully treated under the 
 title Self-Defence. 
 
 But every assault will not justify every 
 battery, and it is matter of evidence 
 whether the assault was proportionable 
 to the battery; an assault may indeed be 
 of such a nature as to justify a mayhem ; 
 
 796 
 
Defence of Person or Property. ASS A UL T. Defence of Person or Property: 
 
 but where it appeared that A had lifted 
 the form upon which B sat, whereby the 
 latter fell, it was held no justification for 
 B's biting off A's finger. B. N. P. i8. 
 
 In cases of assault, as in other cases of 
 trespass, the party ought not, in the first 
 instance, to beat the assailant, unless the 
 attack is made with such violence as to 
 render the battery necessary. Weaver 
 V. Bush, 8 T. R. 78; I Russ. 965, 5th Ed. 
 
 Where a man strikes at another within 
 a distance capable of the latter being 
 struck, he is justified in using such a 
 degree of force as will prevent a repeti- 
 tion. Per Parke, B., Anon., 2 Lewin C. 
 C. 48. 
 
 But a blow struck after all danger is 
 past is an assault. R. v. Driscoll, Car. 
 & M. 214, per Coleridge, J. 
 
 If the violence used be more than 
 necessary to repel the assault, the party 
 may be convicted of an assault. R. v. 
 Mabel, g C. & P. 474; Stewart v. State, 
 I Ohio St. 66; People v. Anderson, 44 
 Cal. 65; Blake v. State, 3 Tex. App. 581; 
 State V. Jones, 77 N. Car. 520; Gallagher 
 V. State, 3 Minn. 270. 
 
 The rule on this point is well laid down 
 by a writer on Scotch law: "Though 
 fully justified in retaliating, the party 
 must not carry his resentment to such a 
 length as to become the assailant in his 
 turn, as by continuing to beat the aggres- 
 sor after he has been disabled, or has 
 submitted, or by using a lethal or pon- 
 derous weapon, as a knife, poker, hatch- 
 et, or hammer, against a fist or cane, or 
 in general pushing his advantage, in 
 point of "Strength or weapon, to the utter- 
 most. In such cases the defence degen- 
 erates into aggression, and the original 
 assailant Is entitled to demand punish- 
 ment for the new assault committed on 
 him, after his original attack had been 
 duly chastised. Alison's Princ. Cr. Law 
 of Scot. 177; I Hume, 335. 
 
 On a trial for murder of a wife by her 
 husband, evidence that the wife had on 
 other occasions tried to strangle him with 
 his neckerchief was allowed to be given 
 in order to show the character of the 
 assault he had to apprehend. It appeared 
 from the evidence that the prisoner was 
 very sensitive about the neck from old 
 abscesses, and that the wife on several oc- 
 casions had twisted his neckerchief round 
 his neck until he became black in the 
 face. R. V. Hopkins, 10 Cox C. C. 22g. 
 
 There is no doubt that son assault 
 demesne is a good defence to an indict- 
 ment. If, therefore, the plaintiff first 
 lifted up his staff and offered to strike 
 the defendant, it is a sufficient assault to 
 justify the defendant striking the plain- 
 
 tiff, and he need not stay till the plaintiff' 
 has actually struck him. If one man 
 strikes another a blow, that other has a. 
 right to defend himself, and to strike a 
 blow in his defence, but he has no right 
 to revenge himself; and if, when all 
 danger is past, he strikes a blow not 
 necessary for his defence he commits an 
 assault and battery. It is not, however, 
 every trifling assault that will justify a 
 grievous and immediate mayhem, such 
 as cutting off a leg or hand, or biting off 
 a joint of a man's finger, unless it hap- 
 pened accidentally, without any cruel or 
 malignant intention, or after the bloods 
 was heated in the scuffle, but it must ap- 
 pear that the assault was in some degree- 
 proportionable to the mayhem. If a 
 party raise up a hand against another 
 within a distance capable of the latter 
 being struck, the other may strike in his 
 own defence to prevent him, but he- 
 must not use a greater degree of force- 
 than is necessary. For if the violence 
 used be more than was necessary to repel 
 the assault, the parly may be convicted 
 of an assault, i Russ. on Cr. (gth Am. 
 Ed.) 1027. 
 
 In an action by A against B for an 
 assault, there was evidence that it was 
 committed by B on his own land in self- 
 defence, he being attacked by A and C. 
 Held, that B was properly allowed ta 
 show that he had told C that day not to 
 come upon the land; and also to show 
 that, shortly before the assault, C (who 
 was a witness at the trial in A's behalf)- 
 said to another person, " You wait a few 
 minutes, and you will see some fun."' 
 White V. Swain, 138 Mass. 325. 
 
 A fired a pistol intending to frighten B, 
 who assailed him. B was hit. Held, not 
 an assault by B if he was in danger. 
 Com. V. Mann, 116 Mass. 58. 
 
 If a person wilfully trespass upon the 
 cultivated lands of another, and while so 
 trespassing assault the owner thereof, 
 and the owner while defending his person 
 from such assault, and while being pur- 
 sued by the assaulting party, inflicts an 
 injury upon the party thus making the 
 assault, the party thus injured cannot re- 
 cover damages for the injury so received. 
 Neither can he if, in such case, a gun in 
 the hands of the assaulted party is acci- 
 dentally discharged and he is injured 
 thereby. Fassbinder v. Svitak, 16 Neb. 
 
 499- 
 
 A threatened B with a knife; B pomted 
 a loaded gun at A, but had no intent to 
 discharge it unless A attacked him. 
 Held, no assault on part of B. State J/. 
 Blackwell, g Ala. 79. 
 
 In a trial upon an indictment charging 
 
 797 
 
Defence of Person or Property. ASS A UL T. 
 
 Trespassers. 
 
 14. Trespassers. — If a person intrudes upon the premises 
 
 of 
 
 the prisoner with shooting at the prose- 
 •cuting' witness with malicious intent to 
 iill, where evidence has been introduced 
 tending to show that the act charged was 
 ■committed by the accused at a time when 
 3ie was being actually assaulted by the 
 prosecuting witness with a dangerous 
 weapon, it is competent for the defence 
 to prove that the general reputation of 
 the prosecuting witness was that of a 
 ■violent and dangerous man, and that 
 such general reputation was known to 
 the accused at the time of the assault, as 
 tending to support the plea of self- 
 defence. Upthegrove v. State, 37 Ohio 
 St. 662. 
 
 Of Property. — The owner of land may 
 resist a trespasser upon it who seeks 
 without right to remove therefrom chat- 
 tels that have been sold to another for 
 whom such landowner is protecting them; 
 and if, in so doing, he has a reasonable 
 apprehension of danger from the in- 
 truder, resistance with a deadly weapon 
 is justifiable. An execution purchaser 
 went with a pistol to take possession. 
 The judgment debtor resisted him with 
 & pistol, and was thereupon prosecuted 
 as for an assault with intent to murder. 
 Held, that he was entitled to put in evi- 
 dence the record of the proceedings in 
 the case in which the execution issued, 
 for the purpose of showing that the sale 
 Tvas illegal; and to show also that before 
 the levy the property had been sold to a 
 third person, for whom respondent was 
 taking care of it. People v. Dann, 53 
 Mich. 4gb; s. c, 51 Am. Rep. 151. 
 
 Retaking Property. — If a person's prop- 
 erty is obtained from him by fraud or 
 force, he may use the necessary degree of 
 force to recover it. Anderson v. State, 
 6 Baxt, (Tenn.) 608 ; State v. Miller, 12 
 Vt. 437; State V. Elliott, 11 N. H. 540; 
 Com. V. McCue, 16 Gray (Mass.), 226. 
 
 So, if one come forcibly and take away 
 another's goods, the owner may oppose 
 him at once, for there is no time to make 
 a request. Green v, Goddard, 2 Salk. 
 641. 
 
 And the owner of goods (or his servant, 
 acting by his command) which are wrong- 
 fully in the possession of another, may, 
 after requesting him to deliver them up, 
 justify an assault in order to repossess 
 himself of them. Blades v. Higgs, 10 
 C. B. (N. S.-) 713- 
 
 Some young men made up a " bell 
 crowd," and between eight and nine 
 o'clock at night went around the defend- 
 ant's house ringing bells and blowing 
 horns; some of the, party carried guns, 
 
 which were fired off a few times; after 
 they were going away from the house 
 (but still within the defendant's inclosure) 
 the defendant came out on his porch and 
 fired his gun at the crowd, inflicting a 
 serious wound on one of the party. 'The 
 defendant admitted that he fired the gun 
 at the crowd, and proposed to prove that 
 before he fired, his child, who was sleep- 
 ing near a window in the house, rose up 
 and ran to the witness with blood on her 
 face, and under the impulse of the mo- 
 ment, believing that she had been shot, 
 he got his gun and went to the door, and, 
 seeing the flash of pistols fired, as he 
 supposed, by the retreating crowd, fired 
 his gun at and into the crowd. This 
 evidence was objected toby the State and 
 excluded by the court, and the defendant 
 excepted. Held, that a person who has 
 reason to believe, and does believe, at the 
 time and under the circumstances that 
 he is in immediate danger is' justified in 
 resisting his assailant, though the danger 
 did not in fact exist; but the jury must 
 determine the reasonableness of his be- 
 lief;, therefore it was error to exclude 
 from the consideration of the jury the 
 evidence upon which such belief is 
 grounded. State v. Nash, 88 N. Car. 
 618. 
 
 A man entered upon land and put up a 
 shanty, claiming the right to do so under 
 a contract of purchase. The owner, how- 
 ever, aided by his wife, tore down the 
 shanty and forcibly ejected the intruder, 
 who seems to have used force also in de- 
 fending his possession, and afterward 
 had the woman and her husband arrested. 
 The woman then sued him for assault 
 and battery, malicious prosecution, and 
 false imprisonment. Upon the trial 
 plaintiff offered in evidence a decree re- 
 fusing to defendant the specific perform- 
 ance of the contract, and it was excluded. 
 It seems that it should have been ad- 
 mitted. But defendant's right to specific 
 performance could not be litigated in this 
 suit. And the woman could have no 
 greater right as against defendant than 
 her husband could if the assault had been 
 upon him. Franck v. Weigert, 56 Mich. 
 472. 
 
 The plaintiff went on to the defendant's 
 premises and loaded slabs without right 
 or license. Held, in an action for assault, 
 that the defendant, the owner of the slabs, 
 could use sufficient force to retake them. 
 Johnson v. Perry, 56 Vt. 703; s. c, 48 
 Am. Rep. 826. 
 
 Getting into the back kitchen of an 
 occupied house through an opeq dooi 
 
 798 
 
Trespassers. 
 
 ASSAULT. 
 
 Defence of Other Fersons, 
 
 another, and an unnecessary amount of violence is used in re- 
 moving him, it is an assault.^ (See also TRESPASS.) 
 
 15. Defence of Other Persons. — It would seem that a person has 
 no right to commit an assault merely in defence of other persons, 
 unless he stand in a particular relation to the person assaulted. 
 Such relations are, husband and wife, and vice versa; parent and 
 child, and vice versa; and a servant in defence of his master, but 
 not a master in defence of his servant.* 
 
 While a wife has the right to fight in the necessary defence of 
 her husband, yet if she use excessive force she is guilty of assault.* 
 
 when no one is in the room, and board- 
 ing up the rest of the house on failing to 
 secure an entrance thereto, does not es- 
 tablish such a constructive possession of 
 the premises as will justify committing 
 assault and battery upon the occupants 
 if they attempt to remove obstructions. 
 Soule V. Hough, 45 Mich. 418. 
 
 Statements made by a party previous 
 to and at the time of a personal encoun- 
 ter, as to his physical condition, are not 
 admissible in evidence in his behalf for 
 the purpose of showing that he did not 
 bring on the difficulty. State v. Van 
 Zant, 71 Mo. 541. 
 
 One who commits an act of unlawful 
 force and thereby brings on a conflict in 
 which he assaults another, cannot excuse 
 the assault by showing that the person 
 assailed was reputed to be violent, and 
 that he acted in self-defence. People v. 
 Miller, 4g Mich. 23. 
 
 Defendant was indicted for assaulting 
 M. with intent to Icill. It was shown 
 that M. and N. were returning from 
 church when defendant and N. engaged 
 in a quarrel. M. interfered and stopped 
 it. Soon it was renewed, and defendant 
 picked up a large rock, and, throwing it 
 at N., hit M. The court instructed the 
 jury that if it be shown that defendant 
 and N. had a difficulty, yet, before de- 
 fendant will be justified or excused in 
 resorting to the use of any dangerous or 
 deadly weapon on N., it must appear 
 that defendant, at the time of using the 
 weapon, had reasonable ground to fear 
 or believe that N. was about to do him 
 great bodily harm, and used said weapon 
 for the -purpose of protecting himself, 
 and, unless so used by defendant in 
 self-defence, he is liable in law for all the 
 consequences of the use of said weapon. 
 Held, the instruction was a proper one. 
 State V. Jump, 2 S. W. Repr. 281. 
 
 1. People V. Van Vechten, 2 N. Y. Cr. 
 R. 291; Glass V. Grady, 17 Up. Can. C. 
 P. 223. 
 
 If a person break down the gate, or 
 come into a close vi et armis, the owner 
 
 need not request him to be gone, but 
 may lay hands on him immediately; for 
 it is but returning violence with violence. 
 If a. person enters another's house with 
 force and violence, the owner of the 
 house may justify turning him out (using 
 no more force than is necessary) without 
 a previous request to depart; but if the 
 person enters quietly, the other party 
 cannot justify turning him out without a 
 previous request. For " there is a man- 
 ifest distinction between endeavoring to 
 turn a man out of a house or close, into 
 which he has previously entered quietly, 
 and resisting a forcible attempt to enter; 
 in the first case a request is necessary; 
 in the latter not." Polkington v. Wright, 
 8 Q. B. 197; I Russ. on Cr. (9th Am. 
 Ed.) 1029. 
 
 If a tenant at will surrenders the prem- 
 ises by an express agreement with the 
 owner, and vacates them with his family 
 and goods, leaving behind a person who 
 has occupied the premises with him by 
 his permission, but without the owner's 
 knowledge or consent, the owner is not 
 liable to an action for an assault if he 
 ejects such person, after request and re- 
 fusal to leave the premises, using no un- 
 reasonable force. Stone v. Lahey, 133 
 Mass. 426. 
 
 What is a reasonable amount of force 
 is a question for the jury. Com. v. 
 Clark, 2 Mete. (Mass.) 23. 
 
 2. Roscoe's Cr. Ev. 305. See Hatha- 
 way V. Rice, 19 Vt. 102. 
 
 The law is so laid down in Dalton's 
 Justice, c. 121; though he treats the last 
 point as doutitful. He also says that 
 neither can the farmer nor tenant justify 
 such an act in defence of his landlord, 
 nor a citizen in defence of the mayor of 
 the city or town corporate where he 
 dwelleth. Hawkins, bk. 2, c. 60, s. 4, fol- 
 lows Dalton exactly. It is true that both 
 these writers are speaking of the forfeit- 
 ure of recognizances to keep the peace, 
 but probably what is said would be ap- 
 plicable to prosecutions for assaults also. 
 
 3. J. rented a tract of land to H., who 
 
 799 
 
Prevention of Unlawful Acts. 
 
 ASSAULT. 
 
 Husband and Wife. 
 
 16. Prevention of Unlawful Acts.— There can be no doubt that 
 any person may interfere to prevent the commission of a felony or 
 any breach of the peace, and that he may proceed to any extrem- 
 ity which may be necessary to effect that object ; commencing, of 
 course, with a request to the offender to desist, then, if he refuses, 
 gently laying hands on him to restrain him ; and if he still'resist, 
 then with force compelling him to submit. Precisely the same 
 rules apply as in cases of self-defence, it being in every case a ques- 
 tion for the jury whether or no the degree of force actually used 
 was necessary for the object which renders it legitimate; if there 
 be any excess, the party using it will be guilty of an assault.* 
 
 17. Husband and Wife. — An indictment will not lie against a 
 feme covert for an assault committed in the company and by com- 
 mand of her husband.* 
 
 with his wife lived in a house upon the 
 same. In the upper story of the house 
 it was agreed that the tobacco raised by 
 said H and the prosecutor should be 
 stored. H. put his tobacco there, but ob- 
 jected to the prosecutor's being stored 
 there. Thereupon a dispute arose be- 
 tween them, in the course of which the 
 prosecutor slapped H. in the face and 
 seized him by the collar. While thus 
 engaged the wi-tness heard the defendant 
 (the wife) say, "Shoot him, shoot him," 
 and soon thereafter she struck the prose- 
 cutor on the head with a " bed-wrench " 
 made of a piece of hickory wood. Held, 
 that if she used excessive force she was 
 guilty of assault; whether such force was 
 used, and whether she acted freely or 
 under constraint of the husband, were 
 questions properly submitted to the jury 
 upon the evidence in this case. State v, 
 Bullock, gi N. Car. 614. See State v. 
 Johnson, 75 N. Car. 174; State v. Jones, 
 77 N. Car. 520. 
 
 A assaulted B, who knocked him down. 
 C. (A's son) then stabbed B. Held, that 
 if the father was in fault by beginning the 
 combat, before the son could be excused 
 for a stabbing in defence of the father, it 
 should appear that the latter had aban- 
 doned or offered to abandon the combat, 
 provided the fierceness of his adversary 
 permit, or he have lime to do so. Of 
 course all this assumes that at the time 
 the stab is given the father is in danger 
 of death or great bodily harm, or honestly 
 believed to be so, upon reasonable 
 grounds. Crowder w. State, 8Lea(Tenn.), 
 669. 
 
 A addressed insulting words to B's 
 wife. Held, B was not justified in as- 
 saulting A. Luggs V. Anderson, 12 Ga. 
 46. See Avery v. Ray, 1 Mass. 12; Col- 
 lins 7). Todd, 17 Mo. 537 ; Birchard .v. 
 Booth, 4 Wis. 67. 
 
 1. Roscoe's Cr. Ev. (loth Ed.) 308. 
 Mr. Roscoesays: " It has been attempted 
 in some cases to draw a distinction be- 
 tween laying hands upon a person in 
 order to restrain him, and proceeding to 
 use force in order to attain (hat object. 
 Seward v. Barclay, i Ld. Raym. 62; i 
 Hawk, c. 60, s. 33. But there seems no 
 ground for such a distinction; the slight- 
 est imposition of hands if not justified is 
 an assault; and the necessity of a greater 
 or less degree of violence depends on the 
 circumstances of the case, to be judged 
 of by the jury. Whether the assault may 
 be carried to the extent of depriving the 
 offending party of his life may perhaps 
 be doubtful. There does not seem any 
 express authority that to prevent any 
 unlawful act other than a felony or breach 
 of the peace an assault may be commit- 
 ted, and it may perhaps be doubtful 
 whether an assault can be justified on 
 this ground. Of course the right to ap- 
 prehend persons who have committed 
 offences stands on a different footing. A 
 man may justify an assault in defence of 
 his house or other property even though 
 no felony or breach of the peace is 
 threatened. 2 Roll. Abr. 549. And if 
 the trespasser use force, then the owner 
 may oppose force to force. Green v. 
 Goddard, 2 Salk. 641; Weaver v. Bush, 
 8 T. R. 78." See Spicer v. People, n 
 Bradw. (Ill.)2g5; People v. Van Vechten, 
 2 N. Y. Cr. R. 291. ' 
 
 2. Com. V. Neal, 10 Mass. 152; s. c, 
 6 Am. Dec. 105 and note. 
 
 Chastisement of Wife. — See Lawful 
 Chastisement, ante, p 794. 
 
 In a prosecution against a husband 
 for assault with intent to murder the 
 wife, evidence that he married her under 
 a false name, which fact, when it be- 
 came known to her, was a cause of do- 
 mestic trouble, is admissible. So, also. 
 
 800 
 
Threatening Words. 
 
 ASSAULT. 
 
 Threatening Words, 
 
 18. Threatening Words.— Mere words' or menaces of themselves 
 •do not constitute an assault ;i but if the words are accompanied 
 by a threatening gesture, or an offer or attempt to do violence, 
 then the whole circumstances combine to make the assault.* 
 
 ■conversations between them respecting 
 their disagreements. Doolittle v. State, 
 ■93 Ind. 272. 
 
 1. State V. Davis, i Ired. L. (N. Car.) 
 125; s. c, 35 Am. Dec. 735; State v. 
 Mooney, Pliil. L. (N. Car.) 434; Smith v. 
 State, 39 Miss. 521; State v. Martin, 30 
 Wis. 2l6; People v. Yslas, 27 Cal. 630; 
 State V. Wood, i Bay. (S. Car.) 351; Law- 
 son V. State, 30 Ala. 14; Chapman v. 
 State, 78 Ala. 463; Warrenj;. State, 33 
 Tex. 517; People v. Bransby, 32 N. Y . 
 525; Keyes v. Devlin, 3 E. D. Smith 
 <N. Y.), 518; People v. Lilley, 43 Mich. 
 521. 
 
 Presenting and aiming an unloaded 
 gun at a person within shooting dis- 
 tance, in such manner as to terrify him, 
 he not knowing that the gun is not 
 loaded, will not support a conviction for 
 -a criminal assault, although it may sup- 
 port a civil action for damages. Chap- 
 man V. State. 78 Ala. 463. 
 
 A. said " I am now ready for you," at 
 the same time holding a pistol, but mak- 
 ing no motion to use it. Held, not an as- 
 sault. Warren v. State, 33 Tex. 517. 
 
 If the person who used abusive words 
 had a knife in his hand, but did not ad- 
 vance towards defendant, or offer to 
 strike, or cut, or stab with the knife, such 
 conduct will not justify a battery. Reid 
 V. State, 71 Ga. 865. 
 
 Under the Texas Code an assault may 
 be committed by " the use of any danger- 
 ous weapon, or the semblance thereof, in 
 an angry or threatening manner, with in- 
 tent to alarm another, and under circum- 
 stances calculated to effect that object." 
 Held, that the ability to commit a battery 
 need not be shown in order to constitute 
 or prove such an assault. Kief v. State, 
 10 Tex. App. 286. 
 
 2. State V. Shipman, 81 N. Car. 513; 
 State V. Rawley, 65 N. Car. 334; State v. 
 Baker, 65 N. Car. 332; State v. Church, 
 63 N. Car. 15; Brown v. State, 58 Ga. 212; 
 Hawkins v. State, 13 Ga. 322; s. c, 58 
 Am. Dec. 517; Cato v. State, 4 Tex. 
 App. 87; Jphnson v. State, 7 Tex. App. 
 210; Kief V. State, 10 Tex. App. 286; 
 Crow V. State, 41 Tex. 468; Bloomer v. 
 State, 3 Sneed (Tenn.), 66; Keefe v. 
 State, 19 Ark- 190; State v. Painter, 67 
 Mo. 84; State v. Taylor, 20 Kan. 643; 
 Lange v. State, 95 Ind. 114; Allen v. 
 People, 82 111. 610; People v. McMakin, 
 B Cal. 547 ; Close v. Cooper, 34 Ohio St. 
 
 98; Barnes v. Martin, 15 Wis. 240; State 
 V. Benedict, 11 Vt. 236; s. c, 34 Am. 
 Dec. 688; U. S. v. Ortega, 4 Wash. (C. C.) 
 531; U. S. V. Richardson, 5 Cranch. 
 (C. C.) 348. 
 
 The person making the threat must 
 have the means or ability to carry his in- 
 tent into execution. State v. Malcolm, 
 8 Iowa, 413; Spiers v. State, 2 Tex. App. 
 244; Jarnigan v. State, 6 Tex. App. 465^ 
 Smith V. State, 32 Tex. 593; Richels v. 
 State, I Sneed (Tenn.), 606; People v. 
 Yslas, 27 Cal. 630; Osborn v. Veitch, i 
 F. & F. 317; Read v. Coker, 13 C. B. 
 850. 
 
 If the parties, at the time the gestures 
 are used are so far apart from each other 
 that immediate contact is impossible 
 there is no assault. Cobbett v. Grey, 4 
 Exch. 744. Compare People v. Yslas, 27 
 Cal. 630; People v. Campbell, 30 Cal. 
 312. 
 
 A stopped B on the street and by 
 threats prevented him from passing. 
 Held, an assault. Bloomer v. State, 3 
 Sneed (Tenn.), 66. See Longz'. Rogers, 
 17 Ala. 540. 
 
 A advanced towards B with a stick 
 raised, as if to sirike, C interfered and 
 withheld A before he was within reach 
 of B. Held, an assault. State v. Van- 
 noy, 65 N. Car. 532. Compare People v. 
 Lilley, 43 Mich. 521. 
 
 If a person be at a place where he has 
 a right to be, and four other persons, with 
 a pitehfork, gun, etc., by following him 
 and using threatening and insulting lan- 
 guage put him in fear, and induced him 
 to go home sooner than, or in a different 
 way from the one he would otherwise 
 have gone, the four are guilty of an as- 
 sault, although they do not get nearer 
 than seventy-five yards, and do not take 
 the weapons from their shoulders. See 
 State V. Hampton, 63 N. Car. 13; State 
 V. Church, 63 N. Car. 15. 
 
 Where a person is obstructed in the ex- 
 ercise of a legal right, or prevented from 
 doing what he proposed to do, and may 
 lawfully do, by a display of physical 
 force, as in brandishing a deadly weapon 
 with violent threats of using it. and this 
 in such proximity as admits of an effect- 
 ual execution of the menace, in conse- 
 quence of which such person desists, an 
 assault is consummated. State z/. Harne, 
 92 N. Car. 805. 
 
 Where the defendant, who was utter- 
 
 I C. of L.— 52 
 
 801 
 
Threatening Words. 
 
 ASSAULT. 
 
 Threatening Words. 
 
 Words may qualify an action, which without them would cdnsti- 
 
 ing threatening and insulting words, 
 picked up a stone, but did not offer to 
 throw it. Held, not an assault. 82 N. 
 1 Car. 549. 
 
 One who by words, acts, or gestures, 
 incites the .assailants of an officer who is 
 endeavoring to make an arrest is guilty 
 of an assault. Com. v. Hurley, 99 Mass. 
 
 433. 
 
 Defendant intruded upon the premises 
 of prosecutor, who took hold of him to 
 lead him off, when defendant put his 
 hand in his pocket and partly drew out a 
 knife, and thereupon the prosecutor de- 
 sisted and went away. Held, an assault. 
 State V. Marsteller, 84 N. Car. 726. 
 
 Defendant said, "Now, God damn 
 you, I am ready to fight you," at the 
 same time holding a loaded gun, with the 
 muzzle pointing down. Held, not to sus- 
 tain a conviction for aggravated assault. 
 Young V. State, 7 Tex. App. 75. 
 
 In State v. Hampton, 63 N. Car. 13, 
 the prosecutor was passing down the 
 steps of the court-house, when he en- 
 countered the defendant, who, turning 
 himself about within reach and with his 
 right hand clinched, his right arm bent at 
 his side, but not drawn back, said, " I 
 have a great mind to hit you." He had 
 previously threatened to cow-hide the 
 prisoner if the crowd would go with him. 
 In consequence, the prosecutor turned 
 away and passed out by another door- 
 way. This violent obstiraction offered to 
 the prosecutor's passing out, compelling 
 him to seek other means of egress from 
 the building, was held to be an assault. 
 
 The defendant, after using threatening 
 language with reference to the prosecutor 
 and in his hearing, advanced upon him 
 with a knife, continuing the use of vio- 
 lent and menacing expressions. The evi- 
 dence left it doubtful as to whether or not 
 the knife was open, and when the defend- 
 ant got within five or six feet of the 
 prosecutor, the latter said, " I shall have 
 to go away," and withdrew from the 
 work upon which he was engaged. It 
 was held that the defendant was properly 
 convicted of an assault. State v. Ship- 
 man, 81 N. Car. 513. 
 
 As by giving a person a push, so that 
 he fell, threatening language having been 
 used before the act. State v. Baker, 65 
 N. Car. 332. 
 
 Defendant being about twenty steps 
 distant, advanced towards prosecutor 
 with knife and stick, cursing and threat- 
 ening to do him bodily harm, in conse- 
 sequence of which, the prosecutor went 
 into a store and remained two or three 
 
 hours, during which time the defendant 
 walked to and fro in front of the store 
 cursing him and threatening to whip him 
 if he came out. Held, an assault, State 
 V. Martin, 85 N. Car. 508; s. c, 39 Am. 
 Rep. 711. 
 
 Defendant shook his fist at another, 
 saying, " If you do that again I will knock 
 you down." Held, an assault. United 
 States V. Myers, i Cranch. (C. C.) 310. 
 See also State v. Hampton, 63 N. Car. 13. 
 
 Defendant raised a club over the head 
 of a woman within striking distance, and 
 threatened to strike her if she opened her 
 mouth. Held, an assault. U . S. zi. Rich- 
 ardson, 5 Cranch. (C. C.) 348. 
 
 A commands B to do a certain act, at 
 the same time raising a club and threat- 
 ening to strike him unless^ he obeys^ A 
 does the act and no blow is struck. Held^ 
 an assault. State v. Morgan, 3 Ired. (N. 
 Car.) 186. 
 
 If the threatening words and gestures 
 are not coupled with a present intent to 
 commit personal violence, they will not 
 amount to an assault. Smith v. State, 39 
 Miss. 521 ; Jarnigan v. State, 6 Tex. App. 
 465. 
 
 Pointing a gun, or pistol, accompanied 
 by threats, unless it is proved that it was 
 unloaded, is aii assault. Crow zi. State, 
 41 Tex. 468; Hairston v. State, 54 Miss. 
 689; s. c.,38 Am Rep. 392. See Dead- 
 ly Weapons, infra. 
 
 The pistol need not be cocked or 
 pointed. People v. McMakin, 8 Cal. 
 547- 
 
 The defendant aimed a gun in an ex- 
 cited and threatening manner at plaintiff, 
 standing three or four rods off, and 
 snapped it two or three times. Held, an 
 assault even though the gun was un- 
 loaded, if such fact was unknown to the 
 plaintiff. Beach v. Hancock, 27 N. H. 
 223; s. c, 59 Am. Dec. 373; State v. 
 Smith, 2 Humph. (Tenn.) 457; State v. 
 Shepard, 10 Iowa, 126; Com. v. White, 
 .110 Mass. 407; R. V. St. George, 9 C. & 
 P. 483. 
 
 The prisoner pointed a pistol at a man 
 who unlawfully attempted to stop the 
 team which he was driving, and threat- 
 ened to shoot if he was not allowed to 
 pass. Held, that he was guilty of as- 
 sault. Hairston v. State, 54 Miss. 689. 
 
 Shooting at a person with a gun loaded 
 only with powder, he not knowing it was 
 only so loaded, is an assault. Crumbly 
 V. State, 61 Ga. 582. 
 
 In Tennessee and Iowa it is expressly 
 held that pointing an unloaded gun at a 
 person is an assault. State v. Smith, 2 
 
 803 
 
Threatening WoTds, 
 
 ASSAULT. 
 
 Ilireatening Gestures. 
 
 tute an assault. ^ It is not competent to prove a custom to curse, 
 abuse, and denounce one another in obscene, insulting, and violent 
 language, and flourishing knives and pistols, with threatening 
 gestures, as a matter of jest and without any intention to use 
 them to the injury of any one.* 
 
 Words of provocation will not justify an assault.* 
 19. Threatening Gestures. — A gesture, unaccompanied with acts 
 which would induce a reasonable belief that personal violence 
 is to be apprehended, will not constitute an assault.* Nor will 
 
 Humph. (Tenn.) 457; State v. Shepard, 
 10 Iowa, 126. 
 
 1. The defendant raised his whip 
 within striking distance, and said: "If 
 you were not an old man I would knock 
 you down." Held, not an assault. State 
 V. Crow, I Ired. L. (N. Car.) 375. See 
 Com. V. Eyre, i Serg. & R. (Pa,) 347. 
 
 Where the defendant, holding an axe 
 behind him, says, " If you interfere I'll 
 cut you down," it is not an assault. Cut- 
 ler V. State, 59 Ind. 300. 
 
 A man laid his hand upon his sword, 
 and said: "If it were not assize time, I 
 would not take such language from you." 
 Held, no assault, as the intent to injure 
 was disavowed. Tuberville v. Savage, I 
 Mod. 3. See Blake v. Barnard, 9 C. & 
 P. 626; State V. Davis, i Ired. L. (N. 
 Car.) 125; s. c, 35 Am. Dec. 735; Riches 
 V. State, I Sneed (Tenn.), 606; State v. 
 Blackvvell. 9 Ala. 79. Compare U. S. v. 
 Myers, l Cranch. (C. C.) 310; U. S. v. 
 Richardson, 5 Cranch. (C. C.) 348; State 
 V. Morgan, 3 Ired. (N. Car.) 186, ante 
 note 2, also State v. Hampton, 63 N. 
 Car. 13; Cato v. State, 4 Tex. App. 87. 
 
 2. Hawkins v. State, 17 Tex. App. 
 593; s. t., 50 Am. Rep. 129. 
 
 3. Sorgenfrei v. Schroeder, 75 111. 397; 
 Ogden V. Claycomb, 52 111. 366; Don- 
 nelly V. Harris, 41 111. 126; State v. Grif- 
 fin, 87 Mo. 608; Collins V. Todd, 17 Mo. 
 537; State V. Wood, i Bay(S. Car.), 351; 
 Winfield v. State, 3 Greene (Iowa). 339; 
 Birchard v. Booth, 4 Wis. 67; Mitchells. 
 State, 41 Ga. 527; Suggs v. Anderson, 12 
 Ga. 461; Lee v. Woolsey, 19 Johns. (N. 
 Y.) 319; s. c, 10 Am. Dec. 230; Avery 
 V. Ray, I Mass. 12; Cushman v. Ryan, 
 I Story (U. S.), 91. 
 
 On the issue of assault and battery, 
 abusive language, without more, will not 
 be a valid legal defence to battery with a 
 rock. If the person who used the oppro- 
 brious words had a knife in his hand, but 
 did not advance towards defendant, or 
 offer to strike or cut or stab with the 
 knife, such conduct will not justify a bat- 
 tery with a rock. If one makes use of 
 opprobrious epithets, and another replies 
 
 with other opprobrious words, the former 
 will not be justified in striking the latter 
 for the use of language provoked by his 
 own similar language. The use of op- 
 probrious words may or may not justify 
 a battery, according to the nature and 
 extent of it; and abusive language will 
 not justify a battery which is excessive 
 and disproportioned to the language 
 used, — all of which the jury should de- 
 termine. Reid V. State, 71 Ga. 865. See 
 Arnold v. State, 46 Ga. 455. 
 
 Admissibility as Evidence. — The Ala- 
 bama statute which allows a defendant 
 who is prosecuted for an assault, an as- 
 sault and battery, or an affray, to "give 
 in evidence any opprobrious words or 
 abusive language used by the person as- 
 saulted or beaten, at or near the time of 
 the assault or affray," and declares that 
 "such evidence shall be good in exten- 
 uation, or justification, as the jury may 
 determine" (Code, § 4900), was "in- 
 tended as a shield, and not as a sword;" 
 and it cannot be invoked by a defendant 
 who first used insulting words and struck 
 the first blow. Brown v. State, 74 Ala. 
 42. 
 
 Mitigation of Damages.— But if the pro- 
 vocation is recent, it will constitute an 
 excuse which will mitigate the damages, 
 and they may be proved for that purpose. 
 Currier v. Swan, 65 Me. 323; Avery v. 
 Ray, I Mass. 12; Matthews v. Terry, 10 
 Conn. 455; Lee v. Woolsey, 19 Johns. 
 (N. Y.) 319; s. c, 10 Am. Dec. 230; May- 
 nard v. Beardsley, 7 Wend. (N. Y.) 560; 
 s. c, 22 Am. Dec. 595; Salters v. Kipp, 
 12 How. Pr. (N. Y.) 342; Corning v. 
 Corning, 6 N. Y. 97; Bride v. McLaugh- 
 lin,, 5 Watts (Pa.), 375; McAlexander v. 
 Harris, 6 Munf. (Va.) 465; Barry v. 
 Inglis, Taylor (N. Car.). 121; Rochester 
 V. Anderson, i Bibb. (Ky.) 428; Waters 
 V. Brown, 3 A. K. Marsh. (Ky.) 557; 
 Delevan v. Bates, i Mich. 97; Cushman 
 V. Ryan, i Story (U. S.), gi. 
 
 4. Speers v. State, 2 Tex. App. 244; 
 State V. Blackwell, 9 Ala. 79; Goodwin's 
 Case, 6 C. H. R. (N. Y.) 9; Taberville z/. 
 Savage, iMod. 3. See ante, p. 801, n. 2. 
 
 803 
 
Adminutwiiigr of ft-og^s. 
 
 ASSAULT. 
 
 Indecent Assault. 
 
 they if unaccompanied by a present intention to do a corporal 
 injury.! 
 
 20. Administering of Drugs. — The delivery to another of a dele- 
 terious drug is an assault.'-* 
 
 21. Indecent Assault. — If a teacher take indecent liberties with a 
 pupil, without the pupil's consent, though the pupil does not re- 
 sist, it is an assault ;^ or if a man take improper liberties with the 
 person of a female.* 
 
 A attempted to arrest B, when B drew 
 a knife within strilsing distance. Held, 
 an assault. Stoclcton v. State, 25 Tex. 
 772. See Higgenbotham v. State, 23 
 Tex. 574; Richels v. State, i Sneed 
 (Tenn.), 606. 
 
 1. Smith V. State, 39 Miss. 521; Simp- 
 son V. State, 59 Ala. i; s. c, 31 Am. 
 Rep. i; People v. Yslas, 27 Cal. 630; 
 Yoes V. State, 9 Ark. 42. 
 
 2. Com. u. Stratton, 114 Mass. 303; 
 s. c, 19 Am. Rep. 350. Compare People 
 'v. Quin, 50 Barb. (N. Y.) 128. 
 
 It was formerly held that if a person 
 put a deleterious drug (as cantharides) 
 into coffee, in order that another may- 
 take it, if it be taken, he is guilty of an 
 assault upon the party by whom it is 
 taken. R. v. Button, 8 C. & P. 660. 
 But in R. V. Hanson, 2 C. & K. 912, the 
 contrary was held; and R. v. Walkden, 
 I Cox C. C. 282; R. V, Dilworth, 2 Mood. 
 R. 531, are to the same effect. Neverthe- 
 less if death ensued, it would be man- 
 slaughter. 2 Hale P. C. 436. 
 
 Where the defendant gave to a woman 
 a fig containing " love-powders" {}.e., 
 cantharides), which she ate, in ignorance 
 of the fact, and was injured in health, the 
 court said: " Although the defendant was 
 ignorant of the qualities of the drug he 
 administered and of the effects to be ex- 
 pected from it, and had been assured and 
 believed that it was not deleterious to 
 health, . . . this, in itself, was unlaw- 
 ful, and he must be held responsible for 
 whatever effect it produced." Com. v. 
 Stratton, 114 Mass. 303; s. c, 19 Am,' 
 Rep. 350. Compare Bechtelheimer v. 
 State, 54 Ind. 128; R. v. Hanson, 2 C. 
 & K. 912; R. V. Walkden, i Cox Cr. Cas. 
 282; R. TJ. Dilworth, 2 M. & Rob. 531; 
 R. V. Wilkins; 9 Cox Cr. Cas. 20; R. ». 
 Button, 8 C. & P. 660. 
 
 3. Ridout V. State, 6 Tex. App. 249; 
 R. V. Nichol, R. & R. C. C. 130. 
 
 If a master take indecent liberties with 
 a female scholar without her consent, he 
 is liable to be punished fcr an assault, 
 though she did not resist. /. master took 
 very indecent liberties wiih a female 
 scholar of the age of thirtee.i, by putting 
 her hand into his breeches, pulling up her 
 
 petticoats, and putting his private parts to 
 hers; she did not resist, but it was against 
 her will. The jury found him guil^y of 
 an assault with intent to commit a rape, 
 and also of a common assault; and the 
 judges thought the finding as to the 
 latter clearly right. R. u. Nichol, R. R. 
 C. C. 130; R. V. McGavaron, 3 C. & K. 
 320. 
 
 And making a feinale patient strip 
 naked, under pretence that the defendant, 
 a medical practitioner, cannot otherwise 
 judge of her illness, if he himself takes 
 off her clothes, is an assault. A girl of 
 sixteen was taken by her parents to the 
 defendant, a German quack, on account 
 of fits, by which she was afflicted; he said 
 he would cure her, and bid her come 
 again the next morning; she went ac- 
 cordingly the next morning by herself, 
 and he told her she must' strip naket*: 
 she' said she would not. He said she 
 must, or he could not do any good. She 
 began to untie her dress, and he stripped 
 off all her clothes; she did nothing; he 
 pulled off everything; she told him she 
 did not like to be stripped in that manner. 
 When she was naked, he rubbed her with 
 a liquid. The case was left to the jury 
 to consider whether the defendant be- 
 lieved that stripping the girl would assist 
 his judgment, or whether he did not strip 
 her wantonly, without thinking it neces- 
 sary; and they were told that the making 
 her strip and pulling off her clothes might, 
 under the latter circumstances, justify a 
 verdict for an assault. The jury found 
 the defendant guilty; and, upon a case 
 reserved, it was held that the conviction 
 was right. R. v. Rosinski, R. & M. C. 
 C. 19. 
 
 4. Com. V. Bean, in Mass. 438. 
 
 The plaintiff gave lessons to the de- 
 fendant's daughters, and lodged at his 
 house over night. On one occasion at 
 midnight the defendant stealthily came 
 into the room where the plaintiff was 
 sleeping, sat down upon her bed, leaned 
 over her person, and made repeated so- 
 licitations to her for sexual intimacy, 
 which she repelled. Held, sitting on her 
 bed, leaning over her person, etc., under 
 the circumstances, was an assault. 
 
 804 
 
Indecent AsBault, 
 
 ASSAULT. 
 
 Coiutrnctiye Assault. 
 
 Practising any fraud or deception upon a person by which his 
 or her consent is gained to an undue hberty with his or her person 
 is an assault.* 
 
 Or if a physician unnecessarily exposes the person of a female, 
 or takes indecent liberties with her, under pretence that he cannot 
 otherwise judge of her illness, or is treating her disease, she mak- 
 ing no resistance solely from the bona-fide belief that such was the 
 case, he is guilty of an assault.* 
 
 former case, they would find the defend- 
 ant guilty, in the latter case they would 
 acquit him. The jury found the prisoner 
 guilty, on the ground that the boys merely 
 submitted to his act, not knowing its na- 
 ture. Held, that the direction of the 
 judge was right. R. v. Lock, L. R. 2 
 Cr. Cas. Res. lo. See Cliver v. State, 45 
 N. J. L. 46. 
 
 Mere submission to an indecent act, 
 without any positive exercise of a dis- 
 senting will, where, owing to the circum- 
 stances, the person submitting is in ignor- 
 ance of the nature of the act, is not such 
 a consent as the law contemplates, so as 
 to prevent the act from being an assault. 
 R. V. Lock. 2 L. R. C. C. 10. 
 
 Constructive Assault. — Where a man 
 who was affected by a venereal disease in- 
 duced a female to have connection with 
 him and infected her with the disease, 
 held, an assault. R. v. Bennett. 4 F. & 
 F. 1005; Hegarty z. Shine, 12 Ir. L. T. 
 Rep. 100; R. V. Sinclair, 13 Cox C. C. 
 28. 
 
 2. Nichols V. State, 72 Ga. 191; R. -o. 
 Flattery, L. R. 2 Q. B. 410; R. v. Stan- 
 ton, I C. & K. 415. 
 
 Where a medical practitioner had sex- 
 ual connection with a female patient of 
 the age of fourteen, who had for some 
 time been receiving medical treatment 
 from him, held, that he, was guilty of 
 an assault, the jury having found that she 
 was ignorant of the nature of his acti and 
 made no resistance solely from a bona- 
 fide belief that he was (as he represented) 
 treating her medically, with a view to her 
 cure. R. v. Case, 4 Cox C. C. 220; R. 
 V. Flattery, 2 L. R. Q. B. Div. 410. 
 
 On an indictment for an assault with 
 intent to commit a rape, the prosecutrix 
 stated that the defendant, her medical 
 man, being in her bedroom, directed her 
 to lean forward on a bed, that he might 
 apply an injection; she did so, and the 
 injection having been applied, she found 
 the defendant was proceeding to have 
 connection with her, upon which she in- 
 stantly raised herself, and ran out of the 
 room. She stated that the defendant had 
 penetrated her person a little. Held, 
 that, if it had appeared that the defend- 
 
 Newell V. Whitcher, 53 Vt. 589; s. c, 38 
 Am. Rep. 703. Compare Irving v. State, 
 9 Tex. App. 66; Saddler v. State, 12 Tex. 
 App. 194; Goodrum v. State, 60 Ga. 
 509. 
 
 Where a man placed his arm about the 
 neck of a married woman without her 
 consent. Craker w. Chicago, etc., R. Co. , 
 36 Wis. 657. 
 
 To sustain a conviction for indecent 
 assault upon young girls under twelve 
 years of age it is not necessary to es- 
 tablish positive resistance on their part: 
 it is sufficient if their persons were inde- 
 cently interfered with, without their act- 
 ual consent. People -u. Justices, 18 Hun 
 (N. Y.), 330. 
 
 If in a prosecution for assault and bat- 
 tery the intent imputed to the accused 
 was to injure the mind or the feelings of 
 the assaulted party, the evidence germane 
 to the existence of the intent may well 
 involve the character of the assaulted 
 party, and the surrounding circumstan- 
 ces: — e.g., if the battery consisted in ma- 
 nipulating a woman without her consent, 
 and the intent imputed was to obtain 
 sexual knowledge of her, proof of previ- 
 ous illicit intercourse between the parties, 
 or evidence that she was a public prosti- 
 tute, is legitimate for the defence as 
 tending to disprove the imputed intent, 
 and thus bearing directly on the issue. 
 Donaldson v. State. 10 Tex. App. 307; 
 Atkins V. State, 10 Tex. App. 8. 
 
 1. R. V. Case, 4 Cox Cr. Cas. 220. 
 
 The prisoner was indicted for inde- 
 cently assaulting two boys, each of whom 
 was eight years of age. It was proved 
 that he took the boys into a field, and 
 did acts toward them which amounted to 
 indecent assaults unless they consented 
 to them. The boys stated in evidence 
 that they did not know what he was going 
 to do to them when he did each of the 
 acts in question. Upon this evidence the 
 judge left to the jury the question whether 
 the boys merely submitted to the acts, 
 ignorant of what was going to be done to 
 them, or of the nature of what was being 
 done, or if they exercised a positive will 
 about It and consented to what the pris- 
 oner did; and told the jury that, in the 
 
 805 
 
Indecent Assault. 
 
 ASSAULT. 
 
 Constructive Assault, 
 
 If a man unsuccessfully attempts by force to compel a woman 
 to have connection with him, it is an assault.^ (See also Rape.) 
 
 ant had intended to have had a connec- 
 tion with the prosecutrix by force, the 
 complete offence of rape would, upon this 
 evidence have been proved, but that the 
 thus getting possession of the person of 
 the woman by surprise, was not an as- 
 sault with intent to commit a rape, but 
 was an assault. R. v. Stanton, I C. & 
 K. 415. 
 
 1. If it appears that tLe consent of the 
 woman was oljtained by fraud, such con- 
 sent constitutes no defence. See R. v. 
 Case, I Den.C. C. 580; 19 L. J., M. C. 
 174; R. V. Bennett, 4 F. & F. 1105. 
 
 It is no defence to an indictment for 
 an assault upon a child with intent to 
 carnally know and abuse her, that the 
 defendant, in making the assault, threw 
 the child into such a position that it was 
 impossible for him to accomplish his pur- 
 pose of ravishing her. Com. w. Shaw, 
 134 Mass. 221. 
 
 The fact that the prosecutrix in an in- 
 dictment for an assault with intent to 
 rape is a lewd woman only goes to her 
 credit. If the prosecutrix consented to 
 have connection with the prisoner upon 
 certain terms, which the defendant re- 
 fused, and attempted by force to carnally 
 know hfer without her consent, he is 
 guilty of rape if he succeeds, and of an 
 assault with intent to commit rape, if he 
 does not succeed. It seems 'that this 
 offence is complete, if the defendant at- 
 tempts to force the prosecutrix against 
 her will, although she afterwards con- 
 sents. State V. Long, 93 N. Car. 542. 
 
 On trial of an indictment for an assault 
 with intent to commit rape, evidence that 
 the prosecutrix, while going alone to the 
 house of an acquaintance, in the night- 
 time, was pursued by the defendant, who 
 seized her around the neck with both 
 hands and threw her down and put his 
 hand over her mouth to prevent her from 
 making outcry, was held to have been 
 properly left to the jury upon the ques- 
 tion of intent, and warranted a verdict of 
 guilty. State v. Mitchell, 8g N. Car. 521. 
 
 The evidence ^showed that late in the 
 evening, near dark, a girl twelve years 
 of age was passing along a by-way going 
 to the house of a neighbor; that the 
 defendant, a grown man and a stranger, 
 rushed out of the woods on the road- 
 side, seized and squeezed her hand, 
 clasped her in his arms, and was bearing 
 her to the woods, saying that he was go- 
 ing to " take her off," and, upon her cry- 
 ing, that he was going to take her o£f and 
 
 kill her; that upon her threatening him 
 with her father, he put her down and ran. 
 Held, that the facts warranted a verdict 
 of assault with intent to rape. The in- 
 tent could be inferred from the actions of 
 the defendant. Ware i/. State, 67 Ga. 
 
 349- 
 
 On trial of an indictment for assault 
 with intent to commit rape it appeared 
 that the prosecutrix, while going from 
 her house to her mother-in-law's, about a 
 mile distant, was carrying with her a 
 child in a baby-carriage and accompanied 
 by a boy of six years of age. Soon after 
 passing defendant's house, she heard de- 
 fendant (who was about seventy-five 
 yards off) say, " Halt, I intend to ride in 
 the carriage. If you don't halt, I'll kill 
 you when I get hold of you." She ran 
 and called for her mother-in-law, defend- 
 ant running after her and telling her to 
 stop, until she got to the gate, where she 
 met another woman to whom she related 
 the matter. Held, that the evidence is 
 not sufficient to warrant a conviction of 
 the intent charged. At most, the circum- 
 stances only raise a suspicion of defend- 
 ant's purpose, and it was error in the 
 court to permit the jury to consider them, 
 State ii. Neely, 74 N. Car. 425, overruled. 
 State w. Massey, 86 N. Car. 658; s. c, 41 
 Am. Rep. 478. 
 
 To warrant conviction upon an indict- 
 ment for an assault with intent to com- 
 mit a rape, the evidence must show that 
 defendant's intention was. if it became 
 necessary, to force compliance with his 
 desire at all events and regardless of any 
 resistance the woman might make. State 
 V. Priestly, 74 Mo. 24. See Com. v. 
 Merrill, 14 Gray (Mass.), 415; Reynolds 
 V. People, 41 How. Pr. (N. Y.) 179; Joice 
 V. State, 53 Ga. 50; State v. Burgdorf, 
 53 Mo. 65; Irving v. State, 9 Tex. App. 
 66. 
 
 In charges of indecent assault, the 
 woman may be cross-examined as to con- 
 nection with other men; but she need not 
 answer. If she does answer in the nega- 
 tive her answer in conclusive, and no 
 evidence can be given to contradict her. 
 The same rule prevails in cases of rape, 
 notwithstanding several decisions to the 
 contrary. R. v. Holmes, L. R. I C. C. 
 R. 334; 41 L. J., M. C. 12. 
 
 At the trial of an indictment for an as- 
 sault with intent to commit a rape upon 
 a girl, evidence that the defendant, about 
 a month before the assault, invited the 
 girl to walk with him to certain woods, 
 
 806 
 
Indecent Assault, 
 
 ASSAULT. 
 
 Uutual Combat. 
 
 22. Mutual Combat. — If two parties go out to strike one another 
 and do so, it is said to be an assault in both, and that it is quite 
 immaterial which strikes the first blow, or that there is no anger or 
 ill-will.i 
 
 and that about five weeks after the as- 
 sault he followed her in a street at night, 
 is admissible in the discretion of the pre- 
 siding judge, ^om. v. Bean, 137 Mass. 
 S70. 
 
 In order to warrant a verdict of guilty 
 in indictments for assaults with intent to 
 commit rape, it is sufficient if the evi^ 
 dence shows that the defendant intended 
 to gratify his lust on the person of the 
 prosecutrix notwithstanding any resist- 
 ance on her part. State v. Long, 93 N. 
 Car. 542. 
 
 B. and M. were charged with an assault 
 with intent to commit a rape on Anna 
 B. , the wife of the defendant B. On the 
 trial the wife testified to certain shameful 
 words and acts of the defendants com- 
 mitted several days subsequent to the 
 date of the alleged offence, showing a, 
 willingness on the part of B. that the 
 wife might be debauched by M. Held, 
 irrelevant to the issue; therefore incom- 
 petent, and sufficiently prejudicial to be 
 material error. State v. Boyland, 24 
 Kan. 186. 
 
 Dr. M. testified to having had the 
 prosecutrix under treatment for some 
 years for a malady which he described, 
 and with the character and progress of 
 which he was well acquainted. Immedi- 
 ately after the assault he was called in, 
 and discovered a condition which was un- 
 expected and for which he* could not ac- 
 count, after a careful examination, until 
 he was informed of the grievance, and 
 was at once satisfied that if true it would 
 account for her changed state. Held, no 
 error. Fay v. Swan, 44 Mich. 544. 
 
 Burden of Proof. — In prosecutions for 
 assault with intent to commit rape, the 
 burden of proof to show the criminal in- 
 tent is upon the State, and evidence 
 showing a mere possibility of the exist- 
 ence of such intent will not support a 
 verdict of guilty. House v. State, 9 Tex. 
 App. 567. 
 
 An indictment for an assault with in- 
 tent to commit a rape need not set forth 
 the manner or means of the assault 
 charged. The general averment that the 
 assault was made with the intent to rav- 
 ish is all that is requisite, and the details 
 as to the mode and means of the act are 
 matters of evidence. State v. Smith, 80 
 Mo. 516. 
 
 In indictments for assault with intent 
 
 to kill or commit rape, the intent must be 
 averred. State v. Russell, 91 N. Car. 
 624. 
 
 A conviction for an assault with intent 
 to commit a rape by force is not warrant- 
 ed by proof that the defendant, against 
 the will of the female, indecently fondled 
 her person with the intent to induce her 
 thereby to submit to his embrace. It 
 must appear that his intent was to accom- 
 plish his purpose by force and against her 
 will. Sanford v. State, 12 Tex. App. 
 196; Irving V. State, 9 Tex. App. 66; 
 Saddler v. State, 12 Tex. App. 194. 
 Compare Newell v. Whitcher, 53 Vt. 589; 
 s. c, 38 Ahi. Rep. 703. 
 
 The plaintiff in an action for an assault 
 with intent to ravish showed that the out- 
 rage was attempted in an upper room of 
 a certain hotel, and that defendant had 
 told her that he was in the habit of going 
 there with women; that the keeper of the 
 house expected him, and that it would be 
 of no use to make any noise. Held, that 
 the testimony of another witness that de- 
 fendant had tried to get her to go with 
 him to the same house, and had then told 
 her that he was in the habit of taking 
 girls there, and that all was arranged 
 there, was relevant and admissible as 
 corroborating plaintiff's story, and show- 
 ing that her danger was real and not 
 feigned. The plaintiff's physician was 
 properly allowed to testify that after the 
 assault he found her in a condition for 
 which he could not account until he heard 
 of the attempted outrage, and that he was 
 satisfied that if the fact was true, it would 
 account for her state. Fay v. Swan, 44 
 Mich. 544. 
 
 1. Com. V. CoUberg, iigMass. 350; s. 
 c, 50 Am. Rep. 328; Dole v. Erskine, 35 
 N. H. 503; Adams v. Waggoner, 33 Ind. 
 531; s. c, 5 Am Rep. 231; State v. New- 
 land, 27 Kan. 764; Shay v. Thompson, 59 
 Wis. 540; s. c, 48 Am. Rep. 538; Stout 
 V. Wren, I Hawks. (N. Car.) 420; s. c, 
 9 Am. Dec. 653; Bell v. Hansley, 3 Jones 
 (N. Car.), 131; Logan v. Austin, i Stew. 
 (Ala.) 476. See McCue v. Klein, ,60 Tex. 
 168 ; s. c, 48 Am. Rep. 260. Compare 
 Champer v. State, 14 Ohio St. 437; State 
 V. Beck, I Hill(S. Car.), 363; s. c, 26 Am. 
 Dec. 190. 
 
 " The true view is, I think, that a blow 
 struck in anger, or which is likely or is 
 intended tp do corporal hurt, is an as- 
 
 807 
 
Mntual Combat. 
 
 ASSAULT. 
 
 TTnlawAil ImpriBonment., 
 
 Scuffling. — If the parties are frolicking together and one injures- 
 the other in an unlawful and unjustifiable way, it is an assault.^ 
 
 23. TTnlawful Imprisonment. — An unlawful imprisonment is an 
 assault.* (See also False Imprisonment.) 
 
 sault, but that a blow struck in sport, and 
 not likely nor intended to cause bodily 
 harm, is not an, assault, and that an as- 
 sault, being a breach of the peace and un- 
 lawful, the consent of the person struck 
 is immaterial. If this view is correct^ a 
 blow struck in a prize-fight is clearly an 
 assault; but playing with single-sticks or 
 wrestling does not involve an assault; 
 nor does boxing with gloves in the ordi- 
 nary way, and not with the ferocity and 
 severe punishment to the boxers deposed 
 to in Reg. v. Orton, 39 L. T. 293." Fer 
 Cave, J., in R. v. Coney, 8 Q. B. D. 539. 
 
 The combatants at a prize-fight and all 
 persons aiding and abetting therein are 
 guilty of an assault for which an indict- 
 ment will lie. But the mere voluntary 
 presence of persons at a prize-fight does 
 not necessarily make them guilty of an 
 assault as aiding and abetting. R. v. 
 Coney, 8 Q. B. D. 534. 
 
 Where a prize or other fight takes place 
 and a number of persons are assembled 
 to witness it, if they have gone thither for 
 the purpose of seeing the combatants 
 strike each other, and were present when 
 they did so, they are all in point of law 
 guilty of an assault; and there is no dis- 
 tinction between those who concur in the 
 act and those who fight. R. v. Perkins, 
 4 C. & P. 537- 
 
 And it is not at all material which party 
 struck the first blow, for if several are in 
 concert encouraging one another and co- 
 operating, they are all equally guilty, 
 though one only committed the actual as- 
 sault. Anonymous, i Lewin, 17; R. w. 
 Lewis, I C. & K. 419. 
 
 A person who wrongfully and volun- 
 tarily enters into a combat armed with a 
 deadly weapon, and is assailed by his ad- 
 versary with his fist, is not justified in 
 using such weapon, without in good faith 
 making an effort to withdraw from the 
 contest. Pressor v. State, 77 Ind. 274. 
 
 Where two parties on horseback meet 
 and have an encounter, and thereafter 
 each party dismounts, lets his horse go, 
 and both willingly engage in a fist fight, 
 and no question of self-defence arises, 
 then each party is guilty of an assault 
 and battery, and this irrespective of the 
 question as to who in the first instance, 
 and while on horseback, was the aggres- 
 sor. State V. Newland, 27 Kan. 764. 
 
 In the case of a mutual combat waged, 
 where death does not ensue, in order to 
 
 reduce the offence from assault with in- 
 tent to murder to aggravated or simple- 
 assault, it must appear that the combat 
 was waged upon equal terms, and that no- 
 undue advantage was sought or taken by 
 the accused. King v. State, 4 Tex. App. 
 54; s. c, 30 Am. Rep. 160 ; People v^ 
 Sanchez, 24 Cal. 17. 
 
 If two in anger fight together by con- 
 sent, each is liable to the other for the 
 actual injury infliicted. Shay v. Thomp- 
 son, 59 Wis. 540; s. c, 48 Am. Rep. 538. 
 
 Civil Action. — If two persons by mu- 
 tual consent, in anger, fight together, 
 each is liable to the other for actual 
 damages. The fighting being unlawful, 
 the consent of either party is no bar to 
 his action. Shay v. Thompson, 59 Wis. 
 540; s. c, 48 Am. Rep. 538. 
 
 1. Fitzgerald v. Cavin, no Mass. 153. 
 Where defendant squeezed plaintiff's 
 
 testicles. Rickei v. Freeman, 50 N. H. 
 420; s. c, 9 Am. Rep. 267. 
 
 Where one boy swung another around 
 violently and let him go, thereby throw- 
 ing him against a third boy, who pushed 
 him away and against a hook which' in- 
 jured him. Compare Rutherford v. State, 
 13 Tex. App. 92; People v. Hale, i N. 
 Y. Cr. R. 533; State v. Elliott, 11 N. H. 
 540; Peterson v. Haffner. 59 Ind. 130, 
 s. c. , 26 Am. Rep. 81; Bullock v. Bab- 
 cock, 3 Wend. (N. Y.) 391. 
 
 2. I Hawk., c. 62, s. i. 
 
 It has been frequently said that every 
 imprisonment includes a battery. B. N. 
 P. 22; I Selw. N. P. Imprisonment, i. 
 
 But this doctrine has been denied. 
 Emmett v. Lyne, i N. R. Bos. & P. 255. 
 
 "An unlawful imprisonment is also 
 an assault, for it is a wrong done to the 
 person of a man, for which, besides the 
 private satisfaction given to the individ- 
 ual by action, the law also demands pub- 
 lic vengeance, as it is a breach of the 
 King's peace, a loss which the state sus- 
 tains by the confinement of one of its 
 members, and an infringement of the 
 good order of sociiety. To constitute the 
 injury of false imprisonment, there must 
 be an unlawful detention of the person. 
 With respect to the detention, it may be 
 laid down that every confinement of the 
 person, whether it be in a common prison 
 or in a private house, or by a forcible 
 detaining in the public streets, will be 
 sufficient. And such detention will be 
 unlawful unless there be some sufficient 
 
 808 
 
Corporations, 
 
 ASSAULT. 
 
 Corporationa,- 
 
 24. Corporations. — A corporation may be held responsible for an 
 assault and battery.^ 
 
 authority for it, arising either from some 
 process from the courts of 'justice, or 
 from some warrant of a legal officer hav- 
 ing power to commit under his hand and 
 seal, and expressing the cause of such 
 commitment; or arising from some other 
 special cause sanctioned, for the neces- 
 sity of the thing, either by common law 
 or by act of Parliament. And the deten- 
 tion will be unlawful, though the warrant 
 or process upon which it is made be reg- 
 ular, in case they are executed at an un- 
 lawful time, as on a Sunday ; or in a place 
 privileged from arrests, as in the verge 
 of the King's court." i Russ. on Cr. 
 (gth Am. Ed.) 1023. 
 
 No actual force is necessary. Smith v. 
 State, 7 Humph. (Tenn.) 43. 
 
 In Bird v. Jones, 7 Q B. 742, the ma- 
 jority of the court held that where the 
 plaintiff in attempting to go in a particular 
 direction was prevented from going in 
 any direction but one, not being that in 
 which he endeavored to pass, it was not 
 an imprisonment, and this whether the 
 plaintiff had or had not a right to pass in 
 the firsl-.mentioned direction. "A prison 
 may have its boundary large or narrow, 
 visible and tangible, or, though real, still 
 in the conception only; it may be mova- 
 ble or fixed; but a boundary it must have, 
 and. that boundary the party imprisoned 
 must be prevented from passing; he must 
 be prevented from leaving that place 
 within the ambit of which the party im- 
 prisoning him would confine him, except 
 by prison breach." Per Coleridge, J., 
 Bird V. Jones, 7 Q. B. 742. 
 
 "In general, if one man compels an- 
 other to stay in any given place against 
 his will, he imprisons that other just as 
 much as if he locked him up in a room, 
 and it is not necessary in order to consti- 
 lute an imprisonment that a man's person 
 should be touched. The compelling a 
 man to go "in a given direction against 
 his will may amount to imprisonment." 
 " Imprisonment is a total restraint of the 
 person for however short a time, and not 
 a partial obstruction of his will, whatever 
 inconvenience it may bring on him." 
 Per Patteson, J., Bird v. Jones, 7 Q. B. 
 742. See also Warner v. Riddiford, 4 C. 
 B. (N. S.) 180. 
 
 1. Frost V. Domestic S. M. Co., 133 
 Mass. 563; Ramsden v. Boston, etc., R. 
 Co,, 104 Mass. 117; Hewett v. Swift, 3 
 Allen (Mass.), 420; Lynch v. Metropoli- 
 tan R. Co., go N. Y. 77; s. c, 12 Am. & 
 Eng R. R. Cas. 119; Jackson v. 2d Ave. 
 R. Co., 47 N. Y. 274; Penna. R. Co. v. 
 
 Vandiver, 42 Pa. St. 365; Owsley v. 
 Montgomery, etc., R. Co., 37 Ala. 560; 
 Am. Express Co. v. Patterson, 73 Ind. 
 430; Chicago, etc., R. Co. v. Williams, 
 55 111. 185; St. Louis, etc., R. Co. v. 
 Dalby, 19 111. 593. 
 
 In an action against a corporation for 
 an assault and battery and false impris- 
 onment by its agents and servants, the 
 plaintiff's evidence showed that a certain 
 machine bought by him of the defendant 
 was replevied upon a writ in favor of the 
 defendant brought by one S., an attor- 
 ney, who in its service committed the 
 torts sued for, and that the replevin bond 
 was signed by the defendant, by G., man- 
 ager. The plaintiff also offered to show 
 that, at the trial of the replevin writ, G. 
 testified that he was the manager and 
 agent of the defendant, and further 
 offered to prove that before that writ was 
 sued out G., as such manager and agent, 
 employed an attorney to sue out the writ; 
 that the writ was placed in the hands of 
 a person for service, and that, upon the 
 refusal of this person and the attorney to 
 serve the writ by committing a breach of 
 the peace, G. said "he would find some 
 one to oljtain the machine," and then 
 followed the employment of and service 
 by S. Neld, that this evidence should 
 have been submitted to the jury upon the 
 question of S.'s agency. Frost v. Do- 
 mestic S. M. Co., 133 Mass. 563. 
 
 Assaults by Kailway Servants. — In 
 many cases a railroad company has been 
 held liable for violent or malicious as- 
 saults by servants upon passengers, inde- 
 pendent of the question whether or not 
 the servant was at the time acting within 
 the scope of his employment. This is 
 upon the ground that the company is 
 bound to protect its passengers from such 
 assaults as part of the contract of car- 
 riage. See ajso Railroads. Craker v. 
 Chicago, etc., R. Co., 36 Wis. 657; Pitts- 
 burgh, etc., R. Co. V. Hinds, 53 Pa. St. 
 212; Weed V. Panama R. Co., 17 N. Y. 
 362; Milwaukee, etc., R. Co. v. Finney, 
 10 Wis. 388; Chamberlin v. Chandler, 3 
 Mason (U. S.)., 242; Nieto v. Clark, i 
 Cliff (U. S!) 145 ; Quigley v. Central Pa- 
 cific R. Co., II Nev. 350; Sherley v. Bill- 
 ings, 8 Bush(Ky.), 147; Maleeckz'. Tower 
 Grove, etc., R. Co.', 57 Mo. 18; Goddard 
 V. Grand Trunk R. Co., 57 Me. 202 : Han- 
 son V. European, etc., R. Co., 62 Me. 
 84; Pendleton v. Kinsley, 3 Cliff (U. S.), 
 416; Bryant v. Rich, 106 Mass. 189; 
 Rounds V. Delaware, etc., R. Co., 64 N. 
 Y. 129; Shea I'. Sixth Avenue R. Co., 62 N. 
 
 809 
 
CprporationB. 
 
 ASSAULT. 
 
 Assault without Violence. 
 
 25. Assault without Actual yipleuce applied to the Person.— The 
 mere taking hold of the coat, or laying the hand gfently on the 
 person of another, if done in anger, or in a rude and insolent man- 
 ner, or with a view to hostility ; striking at a person, though no blow 
 be inflicted, or raising the arm to strike, or holding up one's fist 
 at him, if done in anger, or in a menacing manner, — are considered 
 by the law as assaults.* So is pointing a loaded fire-arm at a per- 
 
 Y.180; Cohen v. Dry Dock, etc., R. Co., 
 69 N. Y. 170; Stewart v. Brooklyn & C. 
 R. Co., 90 N.Y. 588; Ramsden v. Boston, 
 etc., R. Co., 104 Mass. 117; Terre Haute, 
 etc.. R. Co. V. Jackson, 6 Am. & Eng. R. 
 R. Cas. 178; Chicago & E. R. Co. v. 
 Flexman, 8 Am. & Eng. R. R, Cas. 354; 
 Wabash, etc., R. Co. v. Rector, 9 Am. &• 
 Eng. R. R. Cas. 264; Lynch v. Metro- 
 politan Elevated R. Co., 12 Am.,& Eng. 
 R. R. Cas. 119; Stewart v. Brooklyn, etc., 
 R. Co., 12 Am. & Eng. R. R. Cas. 127; 
 Louisville & Nashville R. Co. v. Kelly, 
 13 Am. & Eng. R. R. Cas. i; Bryan v. 
 Chicago, R. L & P. R. Co., 16 Am. & 
 Eng. R. R. Cas. 335; International & 
 Great Northern R. Co. v. Kentle, 16 Am. 
 & Eng. R. R. Cas. 337. 
 
 Company not Liable for Assaults of Ser- 
 vants upon Passengers Outside Scope of Em- 
 ployment. — In other cases the company 
 has not been held liable unless the servant 
 making the assault appears to have been 
 acting within the scope of his authority. 
 Isaacs V. Third Avenue R. Co., 47 N. Y. 
 122; Parker J/. Erie R. Co., 5 Hun (N.Y.;, 
 57; McKean v. Citizens' R. Co., 42 Mo. 
 88; Little Miami, etc., R. Co. v. Wet- 
 more, 19 Ohio St. no ; Ward v. Gen- 
 eral Omnibus Co., 42 L. J. (C. P.) 265; 
 Johnson v. Chicago, R. I. & P. R. Co., 
 8 Am. & Eng. R. R. Cas. 206. The 
 cases are, however, opposed to the cur- 
 rent of modern authority. 
 
 Company Liable for Assaults of Servants 
 upon Passengers Within Scope of their 
 Employment. — It is unquestionably ad- 
 mitted by all the authorities that where 
 the servant is acting within the scope of 
 his employment the company is liable for 
 the assault, although the same is, of 
 course, committed without instruction of 
 the comjjany. Hewett v. Swift, 3 Allen 
 (Mass.), 420; McKinley v. Chicago, etc.,, 
 R. Co., 44 Iowa, 314; Atlantic, etc., R. 
 Co. V. Dunn, 19 Ohio St. 162; Passenger 
 R. Co. V. Young, 21 Ohio St. 518; Indi- 
 anapolis, etc., R. Co. u. Anthony, 43 Ind. 
 183; Jeftersonvllle, etc., R. Co. v. Rogers, 
 38 Ind. 116; New Orleans, etc., R. Co. 
 V. Hurst, 36 Miss. 660; Pittsburgh, etc., 
 R. Co. z/. Theobald, 51 Ind. 246; Quigley 
 V. Central Pac. R. Co., 11 Nev. 350; 
 Travers v. Kansas, etc., R. Co., 63 Mo. 
 
 421; Baltimore, etc., R. Co. v. Blacher, 
 27 Md. 277; Brown v. Hannibal & St. 
 Joe. R. Co. 66 Mo. 588, Northwestern, 
 R. Co. V. Hack, 66 111. 238; Galveston, 
 etc., R. Co. V. Donahue, g Am. & Eng. 
 R. R. Cas. 287. 
 
 In Ramsden -j. Boston, etc., Co., 104 
 Mass. 117, it was held that the corpora- 
 tion was liable to an action for an assault 
 and battery, for the act of its conductor 
 in wrongfully and unlawfully attempting 
 to seize the parasol of a passenger for her 
 fare. 
 
 Plaintiff purchased a ticket for a pass- 
 age upon defendant's railway, and en- 
 tered one of its cars; before reaching his 
 destination he lost his ticket, and when 
 he attempted to pass through the gate, 
 from the station platform, he was 
 stopped by the gatekeeper and told that 
 he could not pass until he produced a 
 ticket or paid his fare. He stated the 
 facts of his purchase of a ticket and its 
 loss, and insisted on passing out, but was 
 pushed back by the gatekeeper, who sent 
 for a police officer and ordered his arrest; 
 he was arrested, taken to the police sta- 
 tion, where the gatekeeper made a com- 
 plaint against him, and he was locked up 
 over night. In the morning plaintiff was 
 examined before a police magistrate, the 
 gatekeeper appearing against him, and 
 he was discharged. Defendant had given 
 orders to its gatekeepers not to let pas- 
 sengers pass out until they either paid 
 their, fares or showed tickets. In an 
 action for false imprisonment, held, that 
 the detention was unlawful ; that de- 
 fendant was responsible for the acts of 
 the gatekeeper, and the plaitttiff was en- 
 titled to recover. Lynch v. Metro. R. 
 Co., 90 N. Y. 77; s. c, 12 Am. & Eng. 
 R. R. Cas. iig. 
 
 Where a car conductor, instead of ar- 
 resting a passenger who refuses to pay 
 his fare at once, and taking him into cus- 
 tody in his capacity as a railroad police 
 officer, causes him to be arrested by offi- 
 cers at the next station, the arrest, if un- 
 lawful, was an assault and a false impris- 
 onment by such conductor. Krulevitx v. 
 Eastern R. Co., 3 New Eng. Repr. 
 (Mass.) 310. 
 
 1. U. S. V. Ortega, 4 Wash. (C. C.) 
 
 810 
 
Assault with Violence. 
 
 ASSAULT. 
 
 Assault with Tiolence, 
 
 son and threatening to shootf^ or an unloaded fire-arm, if the per- 
 son assaulted does not know that the weapon is not loaded.* 
 Stopping and preventing a person by threats from passing in the 
 street.* 
 
 26. Assault with Violence, but not directly applied to the Person. — 
 It is not necessary to constitute an assault with violence that any 
 actual violence be done to the person, as by striking a horse 
 attached to wagon in which another person is sitting.* 
 
 27. Assault with Violence Applied to the Person. — Whenever unlaw- 
 ful violence is inflicted upon the person of another without his 
 consent, it constitutes a battery.^ (See also Battery, ante, 
 P- 783-) 
 
 and compelling him to run into his gar- 
 den to avoid being beaten. Martin v. 
 Shoppee, 3 C. & P. 373. 
 
 Overturning of a ladder on which the 
 plaintiff was standing. Gregory v. Hill, 
 8 Term. 2gg. 
 
 Striking a cane a person is carrying. 
 Respublica v. De Longchamps, i Dall. 
 (U. S.) 114. 
 
 Riding a horse so close as to endanger 
 a person, and give him the idea that the / 
 rider intends to run him down. State v. 
 Sims, 3 Strob. (S. Car.) 137. 
 
 Stopping a person on the street, and 
 by threats or menaces preventing him 
 from passing. Johnson v. State, 17 
 Tex. 515; Long v. Rogers, 17 Ala. 540; 
 Bloomer v. State, 3 Sneed (Tenn.), 66; 
 Bird V. Jones, 7 Q. B. 742. 
 
 Doubling one's fist and approaching 
 another with a threat to strike if certain 
 things are done. U. S. v. Myers, i 
 Cranch'(C. C), 310; U. S. v. Richardson, 
 5 Cranch (C. C.). 348. 
 
 Stopping the carriage in which a per- 
 son was riding, held not an assault. 
 State V. Edge,.! Strob. (S. Car.) gi. 
 
 5. Pushing a person aside in order to 
 enter a house which the defendant had a 
 right to enter. Drury v. Hervey, 126 
 Mass. 5ig; Churchill v. Hulburt, no 
 Mass. 42; s. c , 14 Am. Rep. 578. 
 
 Pushing a person aside while defend- 
 ant held a knife in his hand and used 
 threatening language. Johnson v. State, 
 7 Tex. App. 210. 
 
 Pouring "a mixture of spirits of tur- 
 pentine and pepper" upon the person of 
 the prosecutrix. Murdpck v. State, 65 
 Ala. 520. 
 
 Throwing o. person fi-om a wagon on 
 the frozen ground. Nixon v. People, 2 
 Scam. (111.) 267; s. c, 35 Am. Dec. 
 107. 
 
 Throwing a person from a window. 
 People V. Emmons, 61 Cal. 487. 
 
 Throwing water upon a person. Pur- 
 sell V. Horne, 3 N-.- &■ P. 564. 
 
 531; Kirland v. State, 43 Ind. 146; s. c, 
 13 Am. Rep. 390; State v. Wright, 52 
 Ind. 307; State v. PhiUey. 67 Ind. 304; 
 Howard v. State, 67 Ind. 401; Buntin v. 
 State, 68 Ind. 38; U. S. v. Myers, i 
 Cranch (C. C), 310; U. S. v. Richardson, 
 5 Cranch (C. C), 348; People v. Powers, 
 I Wheeler's Gr. Cas. (N. Y.) 405; John- 
 son V. State, 17 Tex. 515; Coward v. 
 Baddeley, 4 H. & N. 478. 
 
 Approaching another threateningly, 
 brandishing a knife or other weapon. 
 Barnes v. Martin, 15 Wis. 240. 
 
 1. Keefe v. State, ig Ark. igo; Com. 
 V. McLaughlin, 5 Allen (Mass.), 507; 
 Richels v. State, i Sneed (Tenn.), 606; 
 U. S. V. Kierman, 3 Cranch (C. C). 435. 
 
 An instruction to the effect that if de- 
 fendant assaulted W. by pointing a loaded 
 gun at him in a threatening manner and 
 cocking it within shooting distance of 
 him, they should find defendant guilty 
 of common assault, held erroneous. The 
 State V. Sears, 86 Mo. i6g. 
 
 2. State V. Smith, 2 Humph. (Tenn.) 
 457; Morgan v. State, 33 Ala, 413; State 
 V. Shepard, 10 Iowa, 126. See Beach 
 ■V. Hancock, 27 N.H. 223; s. c, jg Am. 
 Dec. 373; State v. Cherry, 11 Ired. (N. 
 Car.) 475. 
 
 3. Bloomer v. State, 3 Sneed (Tenn.), 
 66. 
 
 4. Clark v. Downing, 55 Vt. 259; s. c. 
 51 Am. Rep. 612; State v. Davis, i Hill 
 (S. Car), 46; Bull v. Colton, 22 Barb. 
 (N. Y.) g4; De Marentille v. Oliver, 2 
 N. J. L. 37g. Compare Kirland v. State, 
 43 Ind. 146; s. c, 13 Am. Rep. 386; 
 People V. Keefer, 18 Cal. 636. 
 
 If the horse's running against the man 
 were occasioned by a third person whip- 
 ping him, such third person would be the 
 trespasser. Bac. Ab., tit. "Assault and 
 Battery" (B). 
 
 The upsetting of a chair or carriage in 
 which a person is sitting. Hopper v. 
 Reeve, 7 Taunt. 698. 
 
 Riding after a person at a quick pace 
 
 811 
 
Actual. 
 
 ASSAULT. 
 
 Bodily Harm. 
 
 28. Actual and Grievous Bodily Harm. — Actual bodily harm would 
 include any hurt or injury calculated to interfere with the health 
 or comfort of the prosecutor ; it need not be an injury of a per- 
 manent character. Nor is it necessary that there should be an in- 
 tention to injure particular persons.^ 
 
 Wounding. — In order to constitute a wound the continuity of 
 
 Cutting off the hair of a pauper in the 
 poor-house by force, and against the will 
 of such pauper. Forde v. Skinner, 4 C. 
 & P. 239. 
 
 An aggravated assault may be com- 
 mitted with one's fists. Keley v. State, 
 12 Tex. App. 245. 
 
 A parent to whom the custody of his 
 child has been awarded upon the termina- 
 tion of a divorce suit may be convicted 
 of an assault and battery if, in endeavor- 
 ing to effect an entrance into a. house 
 in which the child has been placed, for 
 the purpose of obtaining possession of 
 the child he uses intentional force upon 
 the person of the occupant of the house 
 in order to overcome resistance by the 
 latter to his entrance. Com. v. Beals, 
 133 Mass. 396. 
 
 A railway employ^ was sent with a 
 party of men to repair a side-track. A 
 man who claimed that they were coming 
 upon his land disputed the company's 
 right to do what was proposed, threaten- 
 ed to undo whatever should be done, and 
 in the course of an excited altercation 
 drew a line on the ground where he said 
 his boundary was, pushed the leader of 
 the working party so that he staggered, 
 and then struck him a single blow with a 
 heavy stick and knocked him down. 
 There was some testimony that the per- 
 son assailed had raised a shovel as if to 
 strike the assailant, but this was denied. 
 The assailant acted in hot blood, but ap- 
 parently supposed that in trying to pre- 
 vent what was proposed he was defend- 
 ing his rights. Held, that although the 
 blow was unjustifiable, the evidence 
 ■would not sustain a charge of assault with 
 intent to kill. People v. Comstock, 49 
 Mich. 330. 
 
 By Intermediate Means. — The injury 
 need not be effected directly by the hand 
 of the party. Thus there may be an as- 
 sault by encouraging a dog to bite; by 
 riding over a person with a horse; or by 
 wilfully and violently driving a cart, etc., 
 against the carriage of another person, 
 and thereby causing bodily injury to the 
 persons travelling in it. i Russ. on Or. 
 (9th Am. Ed.) 1021. 
 
 1. Harris Cr. L. 190. . 
 
 Where the prisoner shortly before the 
 conclusion of a performance at a theatre, 
 
 with the intention and with the result of 
 causing terror in the minds of persons leav- 
 ing the theatre, put out thegas-lights on a 
 staircase which a large number of such 
 persons had to descend in order to leave 
 the theatre, and also placed an iron bar 
 across a doorway through which they had 
 in leaving to pass, and thereupon a panic 
 seized a. large portion of the audience, 
 and they rushed in fright down the stair- 
 case, forcing those in front across the 
 iron bar, and thus several of the audience 
 were thrown down or otherwise severely 
 injured, it was held that the prisoner 
 was rightly convicted of unlawfully and 
 maliciously inflicting grievous bodily 
 harm. R. v. Martin, L. R. 8 Q. B. D. 
 
 54- 
 
 Wovind. — To constitute a wounding the 
 continuity of the skin must be broken. 
 The nature of the instrument is imma- 
 terial, whether it be a stab by a knife, a 
 kick, or a gunshot wound, etc. R. v. 
 Wood, I Mood. C. C. 278; R. v. Briggs, 
 I Mood. C. C. 318. 
 
 Mayhem. — To maim is to injure any 
 part of a man's body, which may render 
 him less capable of fighting. The injury 
 is termed "mayhem." A premeditated 
 design to do the act is essential to may- 
 hem, and therefore where the act is done 
 in the heat of a sudden affray without any 
 evidence of premeditation, the crime is 
 not committed. Godfrey v. People, 63 
 N. Y. 207. See also Mayhem. 
 
 Disfigure. — Disable. — The term "dis- 
 figure " explains itself. To disable re- 
 fers to the causing of a permanent and 
 not merely a temporary disablement. R. 
 V. Boyce, i Mood. C. C. 29. 
 
 An indictment, for aggravated assault 
 and battery should not simply character- 
 ize the offence as aggravated, but should 
 state the matter which makes the aggra- 
 vation. State V. Beadon, 17 S. Car. 55; 
 Marshall v. State, 13 Tex. App. 492. 
 
 On the trial of an indictment for mali- 
 ciously or unlawfully shooting a person' 
 "with intent to disfigure, disable, and 
 kill " him, it is error tp instruct the jury 
 that if they believe the shooting was done 
 "with intent to maim, disfij,'ure, disable, 
 or kill him, or to cause him bodily in- 
 jury," they must find a verdict of guilty. 
 State V. Meadows, 18 W. Va. 658. 
 
 813 
 
"With Deadly Weapons. 
 
 ASSAULT. 
 
 With Deadly Weapons. 
 
 the skin must be broken, and it is not sufficient that bones are 
 broken, the skin not being broken. ^ (See also Wounds.) 
 
 29. Assault with Deadly Weapon. — Whejre the statute provides 
 greater punishment for assaults with a dangerous or deadly 
 weapon, the gravamen of the offence is the use of the weapon 
 with intent to hurt. Where the statute specifies danger to life, 
 such danger must be proved. The indictment under a statute 
 prohibiting assaults with dangerous or deadly weapons should not 
 ■only aver the weapon to be dangerous or deadly, but should 
 specify it.** 
 
 1. I Russ. on Cr. (gth Am. Ed.) 982. 
 
 2. Malone's Cr. Briefs, 178. 
 
 There is no punishment provided for 
 ^n assault with a dangerous weapon 
 ■committed within the exclusive jurisdic- 
 tion of the United States if committed on 
 land, even if it should involve an attempt 
 to commit murder. U. S. v. Williams, 2 
 Fed. Repr. 61 (1880). 
 
 Where an assault is charged to have 
 "been committed with a deadly weapon, 
 the character of the weapon must be 
 averred. State v. Russell, 91 N. Car. 
 ■624; Slusser v. State, 71 Ind. 280. 
 
 Where an indictment charges an as- 
 sault and battery "with a weapon, to wit, 
 a gun," and the evidence shows that the 
 ■offence was committed without a weapon, 
 as with the hand or fist, this is a fatal 
 variance. Walker v. State, 73 Ala. 17. 
 
 A man who is stricken with the fist 
 may enter willingly into the combat, sup- 
 possing that it is to be prosecuted with- 
 out deadly weapons ; but if in its progress 
 his adversary resorts to such weapons, he 
 may lawfully do the same, if it be neces- 
 ■sary to protect his own life, and the fact 
 that he had such weapon concealed on 
 his person will not deprive him of this 
 right, unless the jury believe from the 
 evidence that he went into the fight in- 
 tending from the first to resort to his 
 weapon if it became necessary thereby to 
 overcome his adversary. Aldrige v. State, 
 59 Miss. 250. 
 
 Where, during an angry and violent al- 
 tercation between the prisoner and the 
 prosecuting witness, the former threat- 
 ened to shoot the latter, and immediately 
 thereafter procured a gun and discharged 
 it at the latter, it is error for the court to 
 ■charge the jury that from this threat 
 alone they might infer that the gun was 
 loaded. Fastbinder v. State, 42 Ohio St. 
 
 341- 
 
 It is no defence to an indictment for 
 assault with intent to kill and murder 
 that the defendant learned on the night 
 before the day of assault that the man 
 assaulted had been on that night and 
 
 previously criminally intimate with de- 
 fendant's wife or had solicited sexual in- 
 tercourse with her; and evidence of such 
 information or of the facts to which it re- 
 lated is inadmissible. Reed ii. State, 62 
 Miss. 405. 
 
 In order to convict of shooting at with 
 intent to kill, it must be averred and 
 proved that the gun was loaded with 
 powder and a bullet or- some other de- 
 structive substance, which, when dis- 
 charged from the gun, is calculated to 
 produce death. The fact that the gun 
 was so loaded may be proved by either 
 direct or circumstantial evidence. Fast- 
 binder V. State, 42 Ohio St. 341. 
 
 An indictment charging that defendant 
 assaulted another by pointing a gun at 
 the latter with the intent to maim and 
 kill him is not defective in only alleging 
 that the gun was loaded with gunpowder. 
 Serious injury can be inflicted with a gun 
 so loaded. State v. Sears, 85 Mo. 169. 
 
 Where in an indictment the word 
 "feloniously'' is used in characterizing 
 the assault in the first part of the indict- 
 ment and is joined by the copulative and 
 the words " then and there" to the sub- 
 sequent clause which charges' the shoot- 
 ing or giving the wound, it is sufficient; 
 and it is not essential that the word 
 "feloniously" shall be again repeated 
 before the allegation of the shooting or 
 wounding in order to make it a good in- 
 dictment for a felony. State v. Yates, 21 
 W. Va. 761. 
 
 The Code of 1880 makes it a felony for 
 "any person to assault and beat another 
 with a cowhide, whip, or stick, having at 
 the time in his possession a pistol or 
 other deadly weapon, with intent to in- 
 timidate the person assaulted and pre- 
 vent him from defending himself." 
 Where a person assaults and beats an- 
 other with a cowhide, having in his pos- 
 session a pistol with the intent to intimi- 
 date the assaulted person and prevent 
 him from defending himself, the statute 
 is violated, even though the pistol be not 
 exhibited and the assaulted person does 
 
 813 
 
With Deadly Weapons. 
 
 ASSAULT. 
 
 With rire-arms. 
 
 30. Assault With Fire-arms. — It is well settled that it is an assault 
 to point a loaded weapon at a person,^ but whether it is an assault 
 
 not know that his assailant has a pistol. 
 Lawson v. State, 62 Miss. 556. 
 
 Procedure. — On an indictment for as- 
 sault to murder, the verdict, "We, the 
 jury, find defendant guilty of an assault 
 to murder," is not limited to the assault 
 merely, and is a sufficient verdict. Peo- 
 ple V. McFadden, 65 Cal. 445. 
 
 At the trial of an indictment in one 
 count for an assault with a knife, with in- 
 tent to kill and murder, the jury, upon 
 retiring, were instructed, if they did not 
 agree upon a verdict before the court ad- 
 ' journed for tne day, to reduce it to writ- 
 ing, seal it up, and return it into court 
 the next morning. The jury agreed upon 
 their verdict after the court had ad- 
 journed, and, on the coming in of the 
 court on the next day, a sealed verdict in 
 the following form was handed to the 
 clerk: "In the above entitled case the 
 jury say the defendant is guilty on the 
 first count of an assault, not guilty on the 
 second count." The clerk read this paper 
 in open court, and then inquired of the 
 jury in the usual form whether they 
 found the defendant guilty or not guilty. 
 The foreman replied as follows, to which 
 all the jury assented: " Guilty bf an as- 
 sault with a knife, without the intent to 
 kill and murder." The 'verdict in this 
 form was affirmed, received, and record- 
 ed. Held, that it did not conclusively 
 appear that the jury before separating 
 found the defendant guilty of the same 
 crime of which, they declared him to be 
 guilty by their oral verdict; and that the 
 verdict must be set aside. Com. v. 
 Walsh, 132 Mass. 8. 
 
 So if one shoots a loaded pistol or 
 other firearm in the direction of an- 
 other under such circumstances as to 
 show a reckless indifference as to the 
 consequences, and the act is likely to re- 
 sult in the death of the person toward 
 whom the shot is fired, the law will im- 
 ply malice, and the party so shooting 
 may be convicted of an assault with intent 
 to murder. Conn v. People, 116 111. 459. 
 
 To convict one of an assault with a 
 loaded revolver, with intent to kill and 
 murder, the criminal intent must be 
 shown; but direct and positive testimony, 
 is not required to prove such intent. It 
 may be presumed from facts and circum- 
 stances shown by the evidence. Conn v. 
 People, 116 111. 459. 
 
 In a civil action for an assault and bat- 
 tery alleged to have been made by de- 
 fendant by the discharge of a loaded 
 
 pistol at plaintiff, the court charged that 
 if defendant did not assault the plaintiff, 
 but the pistol, being in his hand for a 
 lawful purpose, was discharged by care- 
 less handling or by accident, there could 
 be no recovery in this action; and again, 
 that if plaintiff assaulted defendant, the 
 latter having the pistol in his hands, and 
 its discharge was caused by plaintiff's act 
 without design on defendant's part, de- 
 fendant was not liable. Held, tliat there 
 was then no error in refusing a further 
 instruction, asked by defendant, that 
 there could be. no recovery " unless the 
 shooting was wilful and intentional." 
 Krall V. Lull, 49 Wis. 403. 
 
 Under an indictment for an assault 
 with a deadly weapon, with intent to in- 
 flict upon the person of another a bodily 
 injury, etc., the accused may be con- 
 victed of a simple assault. Bryant v. 
 State, 41 Ark. 359. 
 
 1. Morgan v. State, 33 Ala. 413; State 
 v. Shepard, ID Iowa, 126; St£|,te v. Tay- 
 lor, 20 Kan. 643; Burton v. State, 3 Tex. 
 App. 408; Crow V. State, 41 Tex. 468; 
 U. S. V. Kiernan, 3 Cranch (U. S.), 435. 
 
 In State v. Montgomery, 65 Iowa, 
 483, where defendant, in seeking to pre- 
 vent the prosecuting witness from cross- 
 ing his farm, pointed a cocked revolver 
 at him more than once, it was held, that 
 the several acts were but parts of the 
 same transaction,, and constituted but one 
 assault, and that, while one act was suffi- 
 cient to constitute an offence, all were 
 properly shown to establish the animus 
 of the defendant. 
 
 One charged with committing an as- 
 sault with a revolver should not be per- 
 mitted to testify as to his purpose in 
 taking the revolver with him, for, however 
 innocent his purpose, it would not justify 
 an assault with the weapon. 
 
 An assault with a revolver cannot be 
 justified for the purpose of removing a 
 mere trespasser from the premises of the 
 assailant. 
 
 Pointing a loaded gun at half-cock at a 
 person is an assault; for there is a present 
 ability of doing the act threatened as the 
 gun can be cocked in an instant. Osborn 
 V. Veitch, I F. & F. 317. 
 
 But if it is not presented or cocked it 
 is not an assault. Lawson v. State, 30 
 Ala. 14. 
 
 In State v. Church, 63 N. Car. 15, the 
 facts were these: The defendant and 
 some others, on a day of public worship, 
 were sitting outside the church some six 
 
 814 
 
with Fire-arms. 
 
 ASSAULT. 
 
 With Fire-arms. 
 
 to threaten a party with a gun or pistol which is not loaded is a 
 questiCin upon which the cases differ.^ 
 
 or seven steps distant, when the prose- 
 cutor appeared. The defendant spoke to 
 him thus: "We have no use for you in 
 this company — go back, you shall not 
 come here." The prosecutor stopped, 
 when defendant rose to his feet and said, 
 addressing the prosecutor, " I have a 
 pistol," at the same time placing his hand 
 on it, where belted around his body. 
 The prosecutor retired slowly, followed 
 by the defendant, not over ten steps 
 apart, who urged him to go or he would 
 shoot him, and drew the pistol from its 
 scabbard, but did not cock it nor present 
 it towards the prosecutor. The court 
 said; "An offer of violence is an assault, 
 even if it be accompanied with a declara- 
 tion that violence will be forborne upon 
 a condition which the actor had no right 
 to impose." 
 
 So if a person fires a revolver at or 
 toward another, either with malice pre- 
 pense or with a total disregard of human 
 life, he may be convicted of an assault 
 with intent to kill and murder the person 
 so attacked; and in such case it makes no 
 difference whether such person was struck 
 by the shot or not. Conn v. People, ii6 
 111. 459- 
 
 1. TTnloaded Fire-arms. — In Chapman 
 V. State, 78 Ala. 463, the court said: 
 "The present conviction, however, can 
 be sustained only on the theory, that it 
 was an assault for the defendant to pre- 
 sent or aim an unloaded gun at the per- 
 son charged to be assaulted, in such a 
 menacing manner as to terrify him, and 
 within such distance as to have been 
 dangerous had the weapon been loaded 
 and discharged. On this question, the 
 adjudged cases, both in this country and 
 in England, are not agreed, and a like 
 difference of opinion prevails among the 
 most learned commentators on the law. 
 We have had occasion to examine these 
 authorities with some care, on more oc- 
 casions than the present; and we are of 
 the opinion that the better view is, that 
 presenting an unloaded gun at one who 
 supposes it to be loaded, although within 
 the distance the gun would carry if 
 loaded, is not, without more, such an as- 
 sault as can be punished criminally, al- 
 though it may sustain a civil suit for 
 damages. The conflict of authorities on 
 the subject is greatly attributable to a 
 failure to observe the distinction between 
 these two classes of cases." 
 
 " It seems that a very reasonable dis- 
 tinction might be made in cases of this 
 
 kind. If a person presents a gun at an- 
 other, knowing it not to be loaded, there 
 can be no intent to injure in any event, 
 and therefore he ought not to be crim- 
 inally responsible ; but if the person at 
 whom such an unloaded gun was pre- 
 sented did anything in self-defence, his 
 justification, whether in a civil or criminal 
 proceeding, ought to be just the same as 
 if the gun were loaded; for the act of the 
 party presenting the gun led to the natu- 
 ral consequences that the party at whom 
 it was presented should defend himself, 
 and the party presenting the gun ought 
 not to be permitted to show the facts to 
 be otherwise than he had himself held 
 them out to be." i Riiss. on Cr. (gth 
 Am. Ed.) 1019. 
 
 In R. V. St. George, 9 C. & P. 483, 
 Parke, B., said: " My idea is, that it is 
 an assault to present a pistol at all, 
 whether loaded or not. If you threw the 
 powder out of the pan, or took the per- 
 cussion-cap oSf, and said to the party this 
 is an empty pistol, then that would be no 
 assault, for there the party must see that 
 it was not possible that he should be in- 
 jured; but if a person presents a pistol 
 which has the appearance of being loaded, 
 and puts the party into fear and alarm, 
 that is what it is the object of the law to 
 prevent." Compare R. v. Brown, L. R. 
 ID Q. B. Div. 381. 
 
 If the person assaulted had reasonable 
 cause to believe that the weapon was 
 loaded, it is an assault though it proved 
 to be unloaded. Com. v. White, no 
 Mass. 407. 
 
 A gun is rfot loaded if the touch-hole is 
 so plugged that the gun cannot possibly 
 be fired, or if, from not being primed or 
 otherwise it does not contain a charge 
 capable of doing the mischief intended. 
 I Bish. Cr. L. (7th Ed.) § 758. 
 
 Under a Statute. — The Indiana statute 
 provides that " It shall be unlawful for 
 any person over the age of ten years, 
 with or without malice, purposely to point 
 or aim any pistol, gun, revolver, or other 
 fire-arm, either loaded or empty, at or to- 
 ward any other person." 
 
 One who angrily seeks another, who is 
 sheltered in his dwelling, and purposely 
 points a gun at the dwelling-house 'door, 
 daring him to come out, and threatening 
 to shoot him, is amenable under such 
 statute. Lange v. State, 95 Ind, 114. 
 
 Cases holding Not Assault. — But where 
 in an action for an assault and presenting 
 a loaded pistol at the plaintiff, it appeared 
 
 815 
 
Dangerous or Deadly Weapon. ASSAULT. Dangerous or Deadly Weapon, 
 
 31. Dangerous or Deadly "Weapon. — The term " deadly weapon" 
 occurs in the common law of homicide and in various statutes. 
 It is a weapon likely to produce death or great bodily injury. In 
 a case of doubt, the manner in which it was used may be taken 
 into account in determining whether or not it was deadly. And 
 when the facts are all established, the question whether a particu- 
 lar weapon was deadly or not is one of law for the court ; yet 
 practically, as in most instances the establishment of the fact 
 awaits the rendition of the verdict, the jury must pass upon this 
 ■ question under instructions from the court. ^ A dangerous weapon 
 is one likely to produce death or great bodily harm.* The words 
 
 made and designated for offensive and 
 defensive purposes, or for the destruction 
 of life, or for the infliction of injury. 
 Com. V. Branham, 8 Bush (Ky.), 387. 
 
 The act of assembly making it indict- 
 able for one to carry concealed about his 
 person any "pistol, bowie-knife, razor, 
 or other deadly weapon of like kind " 
 embraces a butcher's knife. The words 
 " other deadly weapons of like kind " im- 
 ply similarity in the deadly character of 
 weapons, such as can be conveniently 
 concealed about one's person to be used 
 as a weapon of offence and defence. 
 State V. Erwin, 91 N. Car. 545. 
 
 A weapon may be a deadly weapon 
 although not especially designated for 
 offensive or defensive purposes, or for 
 the destruction of life or the infliction of 
 injury. Blige v. State, 20 Fla. 742; s.c, 
 51 Am. Rep. 628. - 
 
 A stone may or may not be a danger- 
 ous weapon, depending upon its size and 
 other circumstances. A large, heavy 
 stone in the hands of a man intending to 
 do great bodily harm is likely to produce 
 that result. State v. Dineen, 10 Minn. 
 
 that the defendant cocked a pistol, and 
 presented it at the plaintiff's head, and 
 
 :said if he was not quiet he would blow 
 his brains out; but there was no evidence 
 that the pistol was loaded, LordAbinger, 
 C. B., held that if the pistol was not 
 loaded it would be no assault. Blake v. 
 Barnard, 9 C. & P. 626. 
 
 And Tindal, C. J., has ruled in the 
 
 -same way. R. v. James, i C. & K. 530. 
 In order to convict of shooting at with 
 intent to kill, it must be averred and 
 proved that the gun was loaded with 
 powder and ball or some other destruc- 
 tive substance, which when discharged is 
 
 ■ calculated to produce death. Fasbinder 
 V. State, 42 Ohio St. 341; Robinson v. 
 State, 31 Tex. 170; Porter v. State, 57 
 Miss. 300; R. V. James, i C. & K. 530. 
 See Crow v. State, 41 Tex. 468 ; 
 McKay v. State, 44 Tex. 43; Burton v. 
 State, 3 Tex. App. 408; Allen v. People, 
 
 .82 111. 610. 
 
 1. Bishop Stat. Cr. (2d Ed.) § 320. 
 3. State V. Dineen, 10 Minn. 407. 
 See McReynolds v. State, 4 Tex. App. 
 327; Hunt V. State, 6 Tej. App. 663; 
 Wilson V. State, 4 Tex. App. 637; State 
 V. McDonald, 67 Mo. 13; Doering v. 
 State, 49 Ind. 56; s. c, 19 Am. Rep. 66g; 
 Berry v. Com., 10 Bush (Ky.), 15. 
 
 In State v. Huntley, 91 N. Car. 617, 
 the court said: "Then what is a deadly 
 weapon ? It must be an instrument used, 
 or that may be used, for the purpose of 
 offence or defence capable of producing 
 death. Some weapons axefierse deadly; 
 others, owing to the manner in which 
 they are used, become deadly. A gun, a 
 pistol, or a dirk-knife is of itself deadly; 
 a small pocket-knife, a walking-cane, a 
 switch of the size of a woman s finger, if 
 strong and tough, may be made a deadly 
 weapon if the aggressor shall use such 
 instrument with great or furious violence, 
 and especially if the party assailed should 
 have comparatively less power than the 
 
 .assailant, or be helpless and feeble." 
 Such weapons or instruments as are 
 
 407. 
 
 When a gun or pistol is used simply as 
 an instrument to strike with, it is not 
 necessarily a deadly weapon, but would 
 be such or not according to its size and 
 the manner of using it; and these facts 
 should be determined by a jury. Shadle 
 V. State, 34 Tex. 572. 
 
 " Whether a pistol is a deadly weapon, 
 when used to strike with as a club or 
 stick, must depend upon its size or weight 
 in connection with the manner of its use 
 and the part of the person that is stricken 
 with it. A pistol used to strike with is 
 nothing more than a piece of iron of the 
 same size, weight, and shape. There may 
 be five or six shooting pistols so small 
 that they would not, when so used, be 
 likely to produce death or serious bodily 
 injury." Skidman v. State, 43 Tex. 93. 
 See Chambers v. State, 42 Tex. 254. 
 
 In Kruger v. State, i Neb. 365, the 
 
 816 
 
Dangerous or Deadly Weapon. 
 
 ASSAULT. 
 
 Dangerous or Deadly Weapon,' 
 
 "dangerous" and "deadly" are practically synonymous whert 
 
 court said : " The indictment fails to 
 charge that the weapons with which the 
 defendants made the assault were deadly 
 weapons, or that the names given to 
 them import that they were such. They 
 were described as being ' weapons, to 
 wit. wooden clubs.' They say that to 
 warrant a conviction under the section 
 of the criminal code of that State under 
 which the indictment was found, it is 
 necessary that the assault be made with a 
 deadly weapon, or with. 'some other in- 
 strument or thing fitted to occasion death, 
 in the use to which it is put. If it be a 
 ■weapon, the ordinary name of which, ex 
 vi temtini, imports its deadly character, 
 e.g , a sword, gun, or pistol, it would be 
 sufficient to describe it by such name; but 
 in other cases the instrument or thing 
 used should be described and charged to 
 be deadly." 
 
 In State v. Napper. 6 Nev. 113, the in- 
 dictment was for an assault with a deadly 
 weapon, with intent to commit murder. 
 The court said: "To constitute, then, 
 the crime of which defendant was con- 
 victed, he must have made an unlawful 
 attempt with a weapon deadly, either in 
 its nature, or capable of being used in a 
 deadly manner, intending to inflict a 
 bodily injury and with the present ability 
 so to do " 
 
 As to whether or not the weapon is, in 
 fact, a deadly weapon is matter of proof, 
 and depends in some cases upon the 
 mode and manner of its use. Hunt v. 
 State, 6 Tex. App. 663. 
 
 A chair is not necessarily a deadly 
 weapon; whether it is such must depend 
 upon its size or weight, in ' connection 
 with the manner of its use and the part 
 of the person that is stricken with it. 
 Kouns V. State, 3 Tex. App. 13. 
 
 An indictment for an assault with in- 
 tent to commit murder charged that the 
 defendants assaulted the prosecutor with 
 a loaded pistol and a hoe, without alleg- 
 ing the hoe and the pistol were deadly 
 weapons, and there was ho direct proof 
 that they were deadly weapons. Beld, 
 that the indictment was sufficient, and 
 that if it was necessary to show the weap- 
 ons used were deadly ones, that was 
 shown by proof of an assault with the 
 pistol and hoe, and that a hoe, in legal sig- 
 nification, is a deadly weapon, as much so 
 as a loaded pistol or an axe, and that proof 
 of their deadly character was not neces- 
 sary. Hamilton v. People, 113 111. 34. 
 
 What Weapons are Deadly. — A stone 
 or an iron weight. State v. Dineen, 10 ■ 
 Minn. 407; Regan v. State, 46 Wis. 256; 
 
 I C. of L,— 53 
 
 817 
 
 Coleman v. State, 28 Ga. 7g; Blige v. 
 State, 20 Fla. 742; s. c, 51 Am. Rep^ 
 628; Milner v. State, 30 Ga. 138; Brown- 
 V. State, 58 Ga. 212. 
 
 A bottle. Wilson v. State, 33 Ga. 217, 
 
 A chisel. Com. v. Branham, 8 Bush 
 (Ky.), 387. 
 
 A gun or pistol if it is loaded. Cora, 
 V. White, no Mass. 407; Com. v. Fenno, 
 125 .Mass. 387; State v. Painter, 67 Mo, 
 84; Agee V. State, 64 Ind. 340; Prior «', 
 State, 41 Ga. 155; State v. Swann, 65 N, 
 Car. 330. 
 
 A pistol or gun may be used as blud'" 
 geon. State v. Franklin, 36 Tex. 155; 
 Allen V. People, 82 111. 610. 
 
 And may be a deadly weapon accord- 
 ing to its size and the manner of using; 
 it. Shadle v. State. 34 Tex. 572. 
 
 A knife. Ferguson v. State, 6 Tex, 
 App. 504. 
 
 The knife must be shown to have been 
 a deadly weapon. Hilliard v. State, 17 
 Tex. App 210. 
 
 A bowie-knife is. Buchanan v. State', 
 24 Ga. 286. 
 
 A pocket-knife may be. Sylvester v. 
 State', 71 Ala. 17. 
 
 A knife with a blade three inches long: 
 is. Briggs v. State, 6 Tex. App. 144. 
 
 An iron bolt, rod, or pin used by 
 thrusting, whether the point be sharp or 
 not, under a statute making it an offence- 
 to "shoot, stab, or thrust any person' 
 with a dangerous weapon." State v. 
 Lowry, 33 La. Ann. 1224. 
 
 A horseshoe is not under the N. Y, 
 statute 1854. People v. Cavanagh, 62 
 How. Pr. (N. Y.) 187. 
 
 A handspike. R. v. Shea, 3 Alien' 
 (N. Brunswick), 129. 
 
 Brass knuckles. Wilks v. State, 3 
 Tex. App. 34. 
 
 A pitchfork. McReynolds v. State, 4 
 Tex. App. 327; State v. Beverlin, 30- 
 Kans. 6n. 
 
 An axe. DoIIarhide v. U. S., i Morris- 
 (Iowa), 233; s. c, 39 Am. Dec. 460; 
 State V. Ostrander, 18 Iowa, 435. 
 
 A hatchet. State v. Sebastian, 81 
 Mo. 514. 
 
 A shovel. State w. Beadon, 17 S, 
 Car. 55. 
 
 A pick-handle. Smith v. State, 73. 
 Ga. 31. 
 
 What are not Deadly Weapons. — The 
 handle of a shovel when only one blow 
 is struck. People v. Comstock, 49 Mich, 
 330. Compare Smith v. State, 73 Ga. 31, 
 
 Nor necessarily a black-jack fence-pole.. 
 Wilson V. State, 15 Tex. App. 150. 
 
 Nor, under the N. Y. statute, which re- 
 
With Intent to Kill. 
 
 ASS A ULT. 
 
 Accessories, 
 
 used in this connection. What is a dangerous or deadly weapon 
 is a question of fact and not of law, and is for the jury.^ 
 
 32. Assault with Intent to Kill. — To sustain an indictment for an 
 assault with intent to murder, the, evidence must be such as to 
 warrant a conviction for murder had death ensued from the 
 assault.** (See also Homicide.) 
 
 33. Accessories. — In an assault and battery, not only he who is 
 the actor or actual perpetrator of the oflence, but he also who, 
 being present when the act is done, aids and abets therein, is a 
 principal and liable as such.* 
 
 quires the weapon to be sharp as well as 
 dangerous, the handle of a pitchfork. 
 Filkins v. People, 69 N. Y. loi; People 
 •V. Hickey, 11 Hun (N. Y.), 631. See 
 People V. Casey, 72 N. Y. 393. 
 
 Whether a horseshoe is, is a question 
 for the jury. People u. Cavanagh, 62 
 How. Pr. (N. Y.) 187. 
 
 1. Doering v. State, 49 Ind. 60; s. c, 
 ig Am. Rep. 669; People v. Rodrigo, 11 
 Pac. Repr. (Cal.) 481. 
 
 Courts judicially know some weapons 
 to be deadly without any distinct aver- 
 ment in the indictment to that effect. 
 DoUarhide v. U.S., i Morris (Iowa), 233; 
 s. c, 39 Am. Dec. 460. 
 
 In U. S. V. Small, 2 Curt. (C. C.) 241, 
 the court said: "In many cases it is 
 practicable for the court to declare that a 
 particular weapon was or was not a dan-- 
 gerouS weapon within the meaning of the 
 law. And when it is practioable it is a 
 matter of law, and the court must take 
 the responsibility of so declaring. But 
 when the question is whether an assault 
 with adangerous weapon has been proved, 
 and the weapon might be dangerous to 
 life or not, according to the manner in 
 which it was used, or according to the 
 part of the body attempted to be struck, 
 I think a more general direction must be 
 given to the jury; and it must be left for 
 them to decide whether the assault, if 
 committed, was with a dangerous 
 weapon." See State v. Rigg, 10 Nev. 
 284. 
 
 2. McCoy V. The State, 8 Ark. 451; 
 Cole V. The State, 10 Ark. 318; t Russ. 
 on Crimes, 719; Whar. Crim. Law, 467; 
 Stark, on Ev. 53-, Lacefield v. State, 34 
 Ark. 275; s. c, 36 Am. Rep. 8. 
 
 3. Cooney v. Burke, 11 Neb. 258; Dun- 
 man V. State, I Tex. App. 593; State v. 
 McClintock, 8 Iowa, 203; Com v. Hur- 
 ley, 99 Mass. 432; State v. Rawles, 65 
 N. Car. 334. 
 
 Two men fought with each other in a 
 ring, formed by ropes supported by 
 posts, in the presence of a large crowd. 
 Amongst that crowd were the prisoners. 
 
 It did not appear that the prisoners took 
 any active part in the management of 
 the fight, or that they said or did any- 
 thing. They were tried and convicted 
 of assault, as being principals in the 
 second degree. The jury were directed 
 that prize-fights are illegal, and that all 
 persons who go to a prize-fight to see 
 the combatants strike each other and 
 who are present when they do so are 
 guilty in law of an assault, and that if 
 the persons charged were not casually 
 passing by, but stayed at the place, they 
 encouraged the fight by their presence, 
 although they did not do or say anything. 
 Upon this direction the jury found the 
 prisoners guilty^ but added that they 
 did so in consequence of such direction 
 of law, as they found that the prisoners 
 did not aid or abet. Held, that the above 
 direction was not correct, that mere 
 voluntary presence at a fight does not as 
 a matter of law necessarily render per- 
 sons so present guilty of an assault as 
 aiding and abetting in such fight, and 
 that the conviction could not be sus- 
 tained. Held, that the conviction could 
 be sustained, that the legal inference to 
 be drawn from mere presence, as a 
 voluntary spectator, at a prize-fight is, in 
 the absence of other evidence to rebut 
 such inference, that the person so pres- 
 ent is encouraging, aiding, and abetting 
 such -fight, and consequently guilty of 
 assault. Held, that aprize-fight is illegal, 
 and that all persons aiding and abetting 
 therein are guilty of assault, and that the 
 consent of the persons actually engaged 
 in fighting to the, interchange of blows 
 does not afford any answer to the crimi- 
 nal charge of assault. Semble, that mere 
 presence of a person, unexplained, at a 
 prize-fight affords some evidence for the 
 consideration of a jury of an aiding or 
 abetting in such fight. The Queen v. 
 Coney, L. R. 8 Q. B. Div. 534. 
 
 Where three persons entered the prem- 
 ises of another with intent to steal, and 
 on being detected by the owner assault- 
 ed him, and during the difficulty ensuing 
 
 818 
 
Evidence. 
 
 ASSAULT. 
 
 Damages, 
 
 _ 34. Evidence that threats have been made by the defendant at a 
 time previous to the alleged assault is admissible.^ 
 
 35. Damages. — In an action for an assault and battery, damages 
 should be given as nearly as possible in conformity to the conse- 
 
 one of them struck the owner and an- 
 other shot at him with a pistol, it was 
 held, that whatever act was done by 
 any one of the defendants so entering the 
 premises was in law the act of all, and 
 that all were guilty of an assault with in- 
 tent to murder. Hamilton v. People, 
 113 111. 34. 
 
 1. State V. Fry, 25 N. W. Repr. (Iowa), 
 738; Sharp V. People, 29 111. 464; McMa- 
 hon V. State, 16 Tex. App. 357; Hender- 
 son V. State, 70 Ala. 29. 
 
 On the trial of a civil action for dam- 
 ages for an assault and battery, where 
 the defendant is a witness in his own be- 
 half, it is not competent to ask him what 
 threats had been communicated to him 
 immediately before the fight of personal 
 violence to him by the plaintiff, unless it 
 is shown that such threats were in fact 
 made by the plaintiff. Hutts v. Shoaf, 
 88 Ind. 395. 
 
 It is not competent as an excuse for a 
 battery to prove that several days before 
 it was committed plaintiff had used in- 
 sulting language to defendant's wife, or 
 had threatened the defendant. The court 
 in such a case, having properly excluded 
 evidence of previous threats by the plain- 
 tiff, permitted the plaintiff to prove the 
 negative — that at the time in question the 
 plaintiff made no threats. Held to be 
 error, and well calculated to pi'ejudice the 
 defence with the jury. Heiser v. Loomis, 
 47 Mich. 16. 
 
 Where there were two assaults, threats 
 made at the first affray — within reason- 
 able proximity of the last assault — were 
 admissible, the court confining the con- 
 sideration of the jury to the threats. How- 
 land V. Day, 56 Vt. 318. 
 
 Under an indictment for an assault with 
 intent to murder, the defendant's declara- 
 tions' to the person assaulted, made 
 "about six minutes after the difficulty," 
 threatening to kill him if he did not 
 "keep his distance," cursing him, and 
 forbidding him to stop at a house in the 
 neighborhood where he wished to stop 
 for the purpose of having his wounds 
 dressed, and where the defendant had al- 
 ready stopped, are competent evidence 
 for the prosecution, being relevant to the 
 question of malice and hostile feeling. 
 "Threats made by the defendant against 
 the person assaulted, " about two weeks 
 before the difficulty between them," are 
 admissible as showing malice, and as de- 
 
 claratory of his criipinal intention. Hen- 
 derson V. State, 70 Ala. 29. 
 
 In a criminal prosecution for an al- 
 leged assault with intent to kill, where 
 the defendant claims that he acted solely 
 in self-defence and to prevent a felony 
 from being committed upon him, and evi- 
 dence is introduced tending to show that 
 such were the nature and character of his 
 acts, it isthen competent for the defend- 
 ant, in corroboration of such evidence, 
 to introduce other evidence tending to 
 show that the person on whom the alleged 
 assault is alleged to have been committed 
 had, some time previously to such alleged 
 assault, assaulted the defendant with a 
 deadly weapon, and had also threatened 
 to kill him, which threats had been com- 
 municated to the defendant previously to 
 such alleged assault. State v. Scott, 24 
 Kan. 68. 
 
 Under a prosecution for an assault with 
 intent to murder, any evidence is admis- 
 sible which tends to show malice, ill-will, 
 or other motive for the act of the accused; 
 and for this purpose the fact of a former 
 altercation or difficulty between the par- 
 ties, but not the merits or details thereof, 
 may be given in evidence. Gray v. State, 
 63 Ala. 66. 
 
 The bad character of a woman on whose 
 premises a person was arrested charged 
 with an assault committed elsewhere can- 
 not be shown upon the prosecution of 
 such person for such offence, in the ab- 
 sence of any showing implicating the 
 woman. People v. Sweeney, 55 Mich. 
 586. 
 
 Threats by the Prosecutor.— Evidence of 
 previous tlireats of personal violence 
 against the defendant by the prosecutor 
 is inadmissible. State v. Skidmore, 87 
 N. Car. 509. 
 
 Violent Character of Person Assaulted. 
 — In a prosecution for an assault and bat- 
 tery, where the defendant was himself the 
 aggressor, he cannot be permitted to ad- 
 duce evidence of the bad character of the 
 person assaulted, as a violent, dangerous, 
 or turbulent man. Brown v.' State, 74 
 Ala. 42. , 
 
 Testimony that a person is quarrelsome 
 is inadmissible for the purpose of show- 
 ing that he probably began a rumpus in 
 which he was hurt; it may be given, per- 
 haps, for the purpose of showing that one 
 who knew it feared an assault from him. 
 Keney v. Dutcher, 56 Mich. 308. 
 
 819 
 
Damages. 
 
 ASSAULT. 
 
 quences v^hich have ensued, and those likely to ensue, therefrom; 
 and, in estimating them, the jury is not to be restricted to the act- 
 ual loss, but may consider the pain and suffering, the wounded 
 feelings of the plaintiff, and, if the act was wanton, may give vin- 
 dictive damages. 1 
 
 1. Shelter v. York, Crabbe (U. S.), 
 449; Slater v. Rink, 18 111. 527; Shere- 
 den V. Furber, I Bl. & H. (U. S.) 423; 
 Gurther v. Blowers, 11 Md. 536. 
 
 Wounded feelings. West v. Forrest, 
 22 Mo. 344. 
 
 Vindictive damages. Wilson v. Mid- 
 dleton, 2 Cal. 54; Causee v. Anders, 4 
 Dev. & B. (N. C.) 246; Cook v. Ellis, 
 6 Hill(N. Y.), 466; Day v. Woodworth, 
 13 How. (U. S.) 363. 
 
 In all cases, unless the provocation 
 is such as to amount to a legal justifica- 
 tion, the damages should be compensa- 
 tory. Birchard v. Booth, 4 Wis. 67. 
 
 A verdict of not guilty in a criminal 
 prosecution for an assault is not admis- 
 sible in defence to an action for damages 
 caused by the assault. But a conviction 
 and payment of fine might be shown in 
 mitigation of exemplary damages, if 
 pleaded. Shook v. Peters, 59 Tex. 393. 
 
 A wrong-doer is liable for the natural 
 results of his trespass, and the jury may 
 take, into account the disgrace as well as 
 the physical suffering caused by it. Fay 
 V. Swan, 44 Mich. 544. 
 
 In an action for assault and battery the 
 jury may consider the malice of the de- 
 fendant, the insulting character of his 
 conduct, the rank and position in life of 
 the several parties, and all the circum- 
 stances of the wrong, and thereupon 
 award such damages as the circumstances 
 of the case require. Where mental pain 
 or suffering is connected with, and fol- 
 lows as a natural consequence of, a ma- 
 terial wrong or injury, it is a legitimate 
 element of damage. Sloan v. Edwards, 
 61 Md. 89. 
 
 In an action for damages for a tres- 
 pass vi et armis, brought in the district 
 court, evidence of the payment of a fine 
 imposed in the county court for the same 
 trespass in a criminal prosecution is ad- 
 missible as evidence in mitigation of 
 damages. Flanagan </. Womack, 54 
 Tex. 45. 
 
 As mental pain is the natural and in- 
 evitable result of personal injuries, dam- 
 ages therefor need not be specially 
 claimed. Gronan v. Kukkuck, 59 Iowa, 
 18. 
 
 Although the jury may, in an action to 
 recover damages for a malicious personal 
 injury, allow a reasonable fee to plaintiff 
 for the services of her attorney in the ac- 
 
 820 
 
 tion, yet such allowance, and the amount 
 thereof, rest in the discretion of the jury, 
 to be determined under all the circuni- 
 stances of the case, but neither party can 
 call witnesses to prove the value of such 
 services. Stevenson v. Morris, 36 Ohio 
 St. 10; s. c, 41 Am. Rep. 481. 
 
 Where the assault is of grievous or 
 wanton nature, manifesting wilful disre- 
 gard of the rights of others, aciual malice 
 need not be shown to entitle the ag- 
 grieved party to exemplary or vindictive 
 damages. Borland u. Barrett, 76 Va. 
 128; s. c, 44 Am. Rep. 152. 
 
 Whatever injurious consequences re- 
 sult naturally from the wrongful act ' 
 done become elements of damage; and 
 it is not necessary that the particular 
 form or nature of the results should have 
 been contemplated or foreseen by the 
 wrong-doer. Sloan v. Edwards, 61 Md. 
 89. 
 
 The fact that an assault and battery 
 were induced by personal abuse of the as- 
 sailant by the party assaulted may be 
 considered in mitigation of punitory, but 
 not of actual, damages, which include 
 those allowed for mental and bodily suf- 
 fering. Corcoran v. Harran, 55 Wis. 
 120. 
 
 An injured trespasser who caused the 
 assault, by his own acts cannot recover 
 damages. Fossbinder v. Svitak, 16 Neb. 
 499 
 
 An employer who in a fit of passion 
 assaults his servant for neglect of duty 
 thereby commits a breach of the peace 
 and an actionable wrong; but if, making 
 a reasonable allowance for the infirmities 
 of human temper, the defendant has a. 
 reasonable excuse arising from the prov- 
 ocation or fault of the servant, but not 
 sufficient to justify entirely the act done, 
 then damages ought not to be assessed 
 by way of punishment, but the circum- 
 stances of mitigation should be consid- 
 ered. Ward V. Blackwood, 41 Ark. 295; 
 s. c, 48 Am. Rep. 41. 
 
 ' In an action for assault it is proper to 
 inquire of an unprofessional viritness how 
 the assaulted party appeared after the af- 
 fray; and the answer, "She seemed to 
 be in great pain in her head and back," 
 was slso admissible. Knight z-. Sraythe, 
 57 Vt. 529. _ 
 
 In an action in damages for an assault 
 and battery, it is competent for the plain- 
 
Damages. 
 
 ASSAULT. 
 
 Damages, 
 
 tiff to offer in evidence, and for the jury 
 ■to consider the fact, that as a result of the 
 battery alleged the plaintiff had become 
 subject to convulsions or fits, although 
 such fact was not specially alleged in the 
 declaration as a ground of special dam- 
 age. Sloan V. Edwards, 6i Md. 89. 
 
 In an action for assault and battery the 
 plaintiff averred that by reason of the 
 battery he was greatly hindered and pre- 
 vented from doing and performing his 
 work and business, and looking after and 
 attending his necessary affairs and avo- 
 cations. Held, that this allegation did 
 not justify the reception of evidence that 
 plaintiff, being a farmer, and having hay 
 ungathered at the time of the injury, was 
 troubled in getting help to save it, and in 
 consequence it was seriously injured. 
 Heiser w. Loomis, 47 Mich. 16. 
 
 In a suit for personal injury, on account 
 of an assault and battery, alleging suffer- 
 ing and a permanent impairment of 
 health as the result, testimony by the 
 plaintiff as to wounds, pain and suffer- 
 ing, loss of sleep and poor health after- 
 wards, is not matter of opinion, but a 
 statement of facts, and is admissible. 
 Hamm v. Romine, g8 Ind. 77. 
 
 An instruction, in an action for an as- 
 sault and battery, permitting the jury in 
 assessing compensatory damages to take 
 into consideration the means and public 
 position of the defendant, is erroneous. 
 Hare v. Marsh, 61 Wis. 435; s. c, 50 
 Am. Rep. 141. 
 
 In action for assault and battery and 
 false imprisonment, there was no error 
 in charging the jury that the wealth of 
 •defendant was a proper matter for the 
 jury to consider in making up their ver- 
 dict. Rowe V. Moses 9 Rich. (S. Car.) 426; 
 Harris v. Marco, l5 S. Car. 575. 
 
 In an action for assault and battery 
 where punitory damages are recoverable, 
 the financial condition of the defendant 
 may be shown by evidence of his reputed 
 wealth.^ Draper v. Baker, 61 Wis. 450; 
 s. c, 50 Am. Rep. 143. See Brown v. 
 Evans, 17 Fed. Repr.-gi2. 
 
 It appears from the evidence in this 
 case that plaintiff was a woman of ill 
 repute, and had on prior occasions con- 
 ducted herself about the defendant's pas- 
 senger-station in a lewd and indecent 
 manner, and that, in the evening of a 
 certain day, at a time when, by the de- 
 fendant's rules, the ladies' waiting-room 
 was closed, and several hours prior to 
 the departure of the train on which she 
 said she was about to travel, she, by 
 some artifice, had gained admission to 
 the waiting-room, and that, for miscon- 
 duct therein, she was removed by the 
 
 police at the request of defendant's agent, 
 but without any force whatever; and it 
 was held that, if plaintiff was entitled to a 
 verdict at all, it was only for nominal 
 damages, and a verdict for $175 should 
 be set aside. Beeson v. Chicago, etc., R. 
 Co., 13 Am. & Eng. R. R. Cas. 45; s. t., 
 62 Iowa, 173. 
 
 In an action brought by a father to 
 recover for injuries to his minor son, 
 caused by an assault and battery, which, 
 it was alleged, resulted in the death of 
 the son, whereby the father was deprived 
 of his services, etc., the defendants re- 
 quested the court to charge that no re- 
 covery could be had for pecuniary injury 
 resulting to the plainfiff by the death of 
 his son, though caused by the wrongful 
 act of the defendants; but the court re- 
 fused the request, and charged that the 
 plaintiff might recover for loss of services 
 of his son until he would have been of 
 age. Held, error; and that at common 
 law the death of a human being affords 
 no grounds for an action for damages. 
 In such case the father is not entitled to 
 exemplary damages. Sherman v, John- 
 son, 58 Vt. 40. 
 
 Provocation given at the time of the 
 assault or within a prior time so recent 
 as to justify the presumption that the 
 offence was committed under the influ- 
 ence of passion, excited thereby, may be 
 shown in mitigation of damages. But if 
 time for reflection intervened after the 
 provocation, it will not extenuate the 
 violence. Gronan v. Kukkuck, 59 Iowa, 
 18; Thrall v. Knap, 17 Iowa, 468; Ire- 
 land V. Elliott, 5 Iowa, 478. 
 
 Pregnant Women. — While B., a mar- 
 ried woman, far advanced in pregnancy, 
 R. in a state of intoxication approached 
 her, cursing and threatening to shoot her, 
 and entered her house. She became fright- 
 ened and fled from her home. In her 
 flight she climbed, and jumped or fell 
 from, a fence. Three days afterwards 
 she was delivered of a dead child. Sub- 
 sequently she brought an action against 
 B. to recover damages for the injuries 
 alleged to have been produced by his 
 conduct. The evidence showed, almost 
 beyond doubt, that the premature delivery 
 and death of the foetus were the results of 
 B.'s demonstrations against the plain- 
 tiff. Held, the plaintiff is entitled to re- 
 cover much more than nominal damages. 
 Barbee v. Reese, 60 Miss. 906. 
 
 In an action for assault and battery, 
 the plaintiff, a married woman, having, 
 while testifying in her own behalf, stated 
 that at the time of the battery she was 
 enceinte, and that the battery caused her 
 to miscarry, upon her cross-examination 
 
 821 
 
ASS A ULT— ASSEMBLE. 
 
 Definition. 
 
 ASSEMBLE. (See also Affray ; Riot ; ROUT.)^ — To meet or 
 come together; to convene, whether for an unlawful or a lawful 
 purpose.^ I 
 
 she was asked by defendant's counsel 
 whether her husband was not in the habit 
 of beating her. To which question the 
 plaintiff by her counsel objected; which 
 objection was sustained by the court. 
 Held, no error. Goracke v. Hintz, 13 
 Neb. 3go. 
 
 A verdict of $250 for assaulting and 
 beating a woman who is enceinte so as to 
 produce a miscarriage ,4?/i^ not excessive. 
 Goracke v. Hintz, 13 Neb. 390. 
 
 Whipping Another's Child. — An infant 
 about five years of age committed a violent 
 and brutal assault and battery upon a child 
 eighteen months old. The father of the 
 latter then caught the former and whipped 
 him severely. The older child then, by his 
 next friepd, brought an action to recover 
 damages for the assault and battery, or 
 whipping, inflicted upon him by the man, 
 who was not his father nor guardian. 
 The jiiry rendered a, verdict in favor of 
 the plaintiff for |ioo, and the court re- 
 fused to set it aside. Held, that the ver- 
 dict was well warranted by the evidence. 
 The provocation, though great, did not 
 justify the whipping; and the right to 
 protect his own child did not authorize 
 the defendant to punish the plaintiff for 
 having maltreated it. Sowell v. McDon- 
 ald, 58 Miss. 251. 
 
 Where not Excessive. — Where a. mob 
 seizes a prisoner, under arrest upon a 
 criminal accusation, and hangs him by 
 the neck till he is senseless, to extort a 
 confession, $1500. are not excessive dam- 
 ages. Elliott V. Russell, 92 Ind. 526. 
 
 $8150 damages held not excessive. 
 Brown v. Evans, 17 Fed. Repr. 912. 
 
 $1000 not excessive. Borland v. Bar- 
 rett, 76 Va. 137; s. c, 44 Am. Rep. 152. 
 
 1. "If any number of persons meet to- 
 gether on a lawful occasion, and on a 
 sudden quarrel engage in a fight, they 
 are not guilty of a riot, but of a sudden 
 affray only (i Hawk. P. C. 541; i Russ. 
 on Cr. 268); and to constitute a riot, the 
 common intent of at least three persons 
 to do any. unlawful act must exist, either 
 at the time of their 'assembling' or be 
 formed with the agreement of mutual as- 
 sistance after they have 'assembled.' It 
 is of course not necessary to prove any 
 formal or express agreement or intent; 
 but it may be inferred from circum- 
 stances, and is a question of fact for the 
 jury. But the bare fact that three or 
 more persons in a violent manner beat 
 another does not raise the, presumption 
 
 of law that they ' assembled ' with that 
 intent, or after being ' assembled ' agreed 
 mutually to assist one another in exe- 
 cuting such a purpose; for if the law, 
 from such conduct, deduced the infer- 
 ence, either as a conclusive or disput- 
 able presumption, that the intent existed 
 which is a necessary ingredient to a riot, 
 there would be no distinction between 
 riots and affrays." State v. Kempf, 26 
 Mo. 429. 
 
 By 32 & 33 Vict. c. 99, s. 10, a pen- 
 alty is imposed on " every person who 
 occupies or keeps any place where ex- 
 ciseable liquors are sold, and knowingly 
 lodges or harbors thieves or reputed 
 thieves, or knowingly permits or suffers 
 them to meet or assemble therein." One 
 Marshall, who occupied a place where ex- 
 ciseable liquors were sold, allowed a 
 meeting to be held there for the purpose 
 of getting up a subscription in aid of the 
 wi^e and children of a man charged with 
 an offence, or for procuring means for 
 his defence. At the meeting were several 
 thieves, or reputed thieves, who were 
 known by the appellant, Marshall, to be 
 such; but no disorderly conduct occurred, 
 and the meeting was got held pursuant to 
 any unlawful design. Held, that such an 
 "assemblage" is forbidden by the sec- 
 tion; for, said Millor, J., "In this case, 
 the occasion of the ' assembling ' was that 
 some man having got into trouble through 
 a criminal offence, cards were sent out 
 to his friends inviting them to meet, that 
 funds might be procured for his defence; 
 and consequently a number of persons 
 'assembled,' and were found in this 
 house sitting round a table singing songs 
 and drinking. Clearly therefore, ihey 
 being reputed thieves, did ' assemble ' 
 there; in the terms of the section,' ' they 
 did meet and assemble in his house.' It 
 appears that a number of the persons 
 were thieves, and reputed thieves, and it 
 is found as a fact that the latidlord knew 
 they were thieves or reputed thieves. 
 Now, it is not every casual meeting of 
 thieves, or reputed thieves, who might 
 accidentally come together, which consti- 
 tutes an offence for which the land- 
 lord is made liable— it would be hard 
 upon him if it were so; but we think that 
 the intention of the legislature was to 
 prohibit the meeting of thieves together 
 in a public-house, though they might have 
 no improper object in meeting, and for 
 this reason, viz., that when thieves get 
 
 823 
 
Definition, 
 
 ASSEMBLE— ASSEMBL Y— ASSENT. 
 
 Definition, 
 
 ASSEMBIY, — The meeting of a. number of persons in the same 
 place.i Any political meeting required to be held by law.^ 
 
 ASSENT. (See also CONTRACT.)— Approval ; consent ; accept- 
 ance. Assent may be either expressed or implied. This word is 
 
 together it affords opportunity and in- 
 ducement to devise crimes and offences." 
 Marshall v. Fox, L. R. 6 Q. B. 370. 
 
 Where a charter directed that out of 
 certain persons to be nominated in a par- 
 ticular mode "the mayor, aldermen, 
 bailiff, principal burgesses, and other 
 burgesses and inhabitants of the borough 
 for the time being (they being for that pur- 
 pose congregated and assembled together) 
 or the greater part of them as should be 
 so congregated, might by the greater part 
 of the voices of them, so assembled, 
 choose one to be mayor;" congregated 
 and " assembled" mean so "assembled" 
 as the law requires, viz., by a majority 
 of each definite body; and a majority of 
 each definite body must be present in 
 order to make a valid election. King v. 
 Bower, i B. & C. 492, 500. 
 
 In order to be duly " assembled " the 
 persons who are to make the election 
 must have notice of the meeting. King 
 V. Ashwell, 12 East, 22, 31. 
 
 The statutes forbidding the disturb- 
 ance of congregations "assembled" for 
 religious worship are applicable not only 
 to disturbances which are made whilst 
 the religious services are progressing, 
 but to disturbances made whilst the 
 congregation is "assembled" for re- 
 ligious worship, though it be at night, 
 after the religious services are closed for 
 the day, and the congregation has retired 
 to rest. Com. o. Jennings, 3 Gratt. (Va.) 
 624. See Kinney v State, 38 Ala. 224; 
 Williams v. State, 3 Sneed (Telnn.), 313. 
 
 Under these cases it is not necessary 
 that the assemblage should have been ac- 
 tually engaged in worship at the moment 
 of the discourse or of the conduct com- 
 plained of. The statute applies to assem- 
 blages when in the act of gathering to- 
 gether; until there has been a dispersion 
 of the persons met for worship, and they 
 cease to be an " assemblage" or congre- 
 gation; but not to cases where the con- 
 gregation, though disturbed, was "assem- 
 bled " exclusively for business purposes, 
 even though the proceedings were opened 
 with religious exercises. Wood v. State, 
 II Tex. App. 318. 
 
 A different rule obtains in Tennessee, 
 where it has been held that the pro- 
 tection afforded religious bodies extend- 
 ed to their business meetings as duties 
 connected with their interests as a church. 
 Hollingsworth v. State, 5 Sneed (Tenn.), 
 5i8. 
 
 Where an act made it a criminal of- 
 fence to interrupt and disturb any public, 
 private, or select school while the same 
 is in session, a complaint charging a 
 wilful disturbance of " a school met and 
 assembled for culture and improvement 
 in sacred and church music" was held 
 fatally defective in not alleging that the 
 school was in session; and it was also 
 held that a meeting of persons " as- 
 sembled " for the purpose of singing to- 
 gether, for their common improvement in 
 the art of singing, but without a teacher, 
 is not a school within the statute. State 
 ■0. Gager, 28 Conn. 232. 
 
 1. Unlawful Assembly. — In criminal law 
 the assembling together of three or more 
 persons together to do an unlawful act, 
 who separate without actually doing it, 
 or making any motion towards it. Bur- 
 rill's Law Diet. (2d Edit.), sub voce. 
 
 It is distinguished from riot or rout, 
 because in each of these there is some 
 act done besides the simple meeting. If 
 parties assemble together for a purpose 
 which if executed would make them 
 rioters, but having assembled they do 
 nothing, and separate without carrying 
 their purpose into effect, this is an " un- 
 lawful assembly." Rex v. Birt, 5 C. & 
 P- 154. 
 
 Any meeting assembled under such 
 circumstances as, according to the opin- 
 ion of rational and firm men, are likely 
 to produce danger to the tranquillity and 
 peace of the neighborhood, is an "un- 
 lawful assembly." Regina v. Vincent 
 etal., 9 C. & P. gi. 
 
 Any assembly of persons attended with 
 circumstances calculated to excite alarm 
 is an " unlawful assembly." Regina z/. , 
 Neale, g C. & P. 431. 
 
 Defendant was indicted for a riot and 
 assault, and the jury found him guilty of 
 a riot, but not of the assault charged. 
 Held, that a conviction for riot could not 
 be sustained, the assault, the object of the 
 riotous assembly, not having been exe- 
 cuted; although the defendant might have: 
 been guilty of joining in an unlawful as— 
 sembly. Queen v. Kelly, 6 U. C. C. F... 
 372. 
 
 Popular Assembly. — A mass meeti'ng.- 
 where the people meet to deliberateona 
 their rights guaranteed by the consCitttT- 
 tion. U. S. Const. Amend. Art. i. 
 
 2. Such as the " General Assembly,"" 
 which includes the Senate and House. <^ 
 Representatives. 
 
 823 
 
leflnition. ASSENT— ASSETS. Definition. 
 
 chiefly used in contracts — which see.^ Also used in England,- 
 where a devise in trust is made to an executor, of his willingness 
 to take under the will as legatee in trust, and not as executor.* 
 In many instances where a transaction is manifestly for any one's 
 benefit or advantage, his assent thereto will be assumed.* 
 
 ASSESSMENTS. 
 
 Assessments for Streets, Improvements. See STREETS 
 {Assessments for). 
 
 Assessments upon Stock. See Stock (ASSESSMENTS OF). 
 Assessments in Insurance. See INSURANCE. 
 Assessments of Taxes. See Taxation. 
 
 ASSETS. (See also BANKRUPTCY ; ' CORPORATION ; PARTNER- 
 SHIP.) 1. Definition (from assez, enough). — Property, whether real 
 or personal, available for the payment of debts of a person, estate, 
 or corporation.* 
 
 2. At Common Law. — At the common law the property of a de- 
 ceased person liable to his debts consisted of both personal and 
 real assets, viz.: (i) all his personal property;** (2) his real 
 estate descending to his heir, where the debt was a specialty and 
 the heir especially named in the obligation,® otherwise the latter 
 was not bound, until by later statutes, principally the 3 & 4 Wm. 
 IV. c. 104, and similar ones in the different States, lands descend- 
 ing to the heir or devisee were made liable to simple contract 
 debts also. The two kinds of assets were also known as " assets by 
 descent," which originally meant the land descended to the heir of 
 equal value to that as to which the ancestor had entered into a 
 warranty, but afterwards became equivalent to "real assets;"'' 
 and " assets inter manes (in the hands)," i.e., " where a man 
 indebted makes executors and leaves them sufficient to pay his 
 debts and legacies ; or where some commodity or profit ariseth to 
 executors in right of the testator." ** 
 
 1. Every contract consists of a request guarantor, the wife's promissory note, ex- 
 ■on one side and an assent on the other, pressed on its face to be secured by a 
 Jackson v. Galloway, 5 Bingham New mortgage.a husband "assents in writing," 
 tas. 71, 75. within the Mass. Gen. Stat. ch. 106, § 3; 
 
 2. See Young u. Holmes, i Strange, Cormerais i/^ Wesselhoeft, 114 Mass. 550. 
 ■70; Doe V. Sturges, i Taunton, 217; Doe The royal " assent" in England is the 
 31. Tatchell, 3 B. & Ad. 675. approval by the sovereign of an act 
 
 8. As of a grantee. Wilt v. Franklin, which has passed both houses of Parlia- 
 
 I Binn. (Pa.) 502. ment. i Bl. Com. 184. 
 
 Or an assignee for the benefit of cred- The assent of the President of the 
 itors. Skipwiih v. Cunningham, 8 Leigh United States is expressed in similar 
 (Va.), 271. But see Crosby If. Hillyer, 24 cases by the word "approved." Bur- 
 Wend. (N. Y.) 280; Welch V. Sackett, 12 rill's Law Diet. 
 Wis. 243. _ "Assent" is an agreement to or ap- 
 
 Assent, as used in the Mississippi con- proval of an act or thing done. " Con- 
 stitution, art. 12, § 14, relative to elec- sent " is agreement to a thing to be done 
 itions, means agreeing to or consenting to, or about to be done. Burrill'sLaw Diet, 
 and this can be shown only by affirmative ^ 4. Abb. Law Diet, 
 action — by actually voting. Hawkins v. 5. Wms. Exrs. 1530. 
 Carroll County. 50 Miss. 735. See State 6. Wms. R. Prop. 75. 
 ■3/. Brassfield, 67 Mo. 331. 7. Co. Litt. 365, 'a; 374, b. 
 
 Assents in Writing. — By signing as 8. Jac. Law Diet. , 
 
 824 
 
Legal and Equitable. 
 
 ASSETS. 
 
 What are Assets. 
 
 3. Legal and Equitable Assets. — Legal assets are those which an 
 executor takes virtute officii, and which in an action at law 
 against him would be liable, even though it may be necessary for 
 the executor himself to seek the aid of equity in recovering them.* 
 These are administered according to the legal rules of priority of 
 debts, i.e., debts of record, and by specialty are preferred in the 
 order of payment to simple contract debts.** 
 
 Equitable assets are such as are administered by a court of 
 &(\}X\\.Y pari passu among the creditors, irrespective of legal priority, 
 as where land is devised for or charged with payment of debts, o/ 
 where the nature of the property is such that it cannot be reached 
 by the creditor except through the aid of equity.* 
 
 4. What are Assets. — The following kinds of property have been 
 held to be assets, viz. : the general personal estate, including chat- 
 tels' real, of a dece'ased person ;* a debt owing by the executor or 
 administrator;^ debts generally, when they are recoverable with 
 due diligence ; * negotiable notes ;' legacies and distributive 
 shares j** money diie on mortgage;' emblements;^" rent accru- 
 ing previous to the death of the intestate or testator ;** choses in 
 action founded on contract, debt, covenant, or other duty,^* and 
 on tort, under stat. 4 Edw. III. c. 7 ;** real estate generally, in- 
 cluding reversions** and equitable interests.*^ 
 
 1. Cook V. Gregson,' 3 Drew, 547; 
 Att.Gen. v. Brunning, 8 H. L. C. 256. 
 
 S. In the case of a person dying on or 
 after January i, 1870, the rule has been 
 altered by 32 & 33 Vict. c. 46, enacting 
 that all creditors, whether by specialty or 
 simple contract, are to be paid pari 
 passu. As to the law in the States, see 
 infra. 
 
 S. Silk V. Prime, i Dick. 384; Lowe if. 
 Peskett, 16 C. B. 500. 
 
 4. Luce V. Treasurer, Wright (Ohio), 
 654; Qx3.yv. Swain, 2 Hawks. (N. Car.) 15. 
 
 5. Hall V. Hall, 2 McCord (S. Car.), 
 Ch. 269; Leland v. Felton, i Allen 
 
 SMass.), 531; Marvin v. Stone, 7 Cow. 
 N. Y.) 781; Wood V. Exrs. of Tallraan, 
 Coxe (N. J.), 153. 
 
 6. Kohler v. Knapp, i Bradf. (N. Y.) 
 241; Harrington v. Keteltas, 92 N. Y. 
 40; Bullock V. Rogers, 16 Vt. 294; Wil- 
 son V. Lineberger, 88 N. Car. 416; 
 Tompkins v. Tompkins, 18 S. Car. i; 
 Anderson v. Piercy, 20 W. Va. 282; San- 
 derson V. Sanderson, 20 Fla. 292. See 
 Ruggles V. Sherman, 14 Johns. (N. Y.) 
 446. 
 
 But a joint debt inures to the surviv- 
 ing creditor. Cote v. Dequindre, Walk. 
 (Mich.) 64. 
 
 7. Slocum V. Sanford, 2 Conn. 533. 
 
 8. Storer w. Blake, 31 Me. 289; Hanen- 
 kamp V. Borgnier, 32 Mo. 569; Pease v. 
 Walker, 20 Wis. 573. 
 
 9. Smith V. Dyer, 16 Mass. 18; Chase 
 
 V. Lockerman, 11 Gil. & J. (JMd.) 185; 
 Burton v. Hintrager, 18 Iowa, 348. 
 
 10. Wadsworth v. Allcott, 6 N. Y. 64; 
 Waring z/. Purcell, i HillCh. (S Car.) 193; 
 Laurin v. McCoU, 3 Strobh. (S. Car.) 21; 
 Singleton v. Singleton, 5 Dana (Ky.), 
 92! 
 
 H. Foltz V. Prouse, 17 111. 487; King 
 V. Anderson, 20 Ind. 385; Sohier v. El- 
 dredge, 103 Mass. 350; Smith v. Bland. 
 7 B. Mon. (Ky.) 21; Ball v. Covington 
 Bank, 80 Ky. 501 ; Mills v. Merryman, 49 
 Me. 65; Fay «/. Holloran, 35 Barb.(N.Y.) 
 295; Haslage v. Krugh, 25 Pa. St. 97. 
 
 But that accruing after his death goes 
 to the heir or devisee. Burnell's Estate, 
 13 Phila. (Pa.) 387; Kidwell v. Kidwell, 
 84 Ind. 224. 
 
 12. Holbrook v. White, 13 Wend. (N. 
 Y.) 591; Tobey v. Manufrs. Nat. Bank, 
 9 R. I. 239'. 
 
 Unless the claim is barred by the stat- 
 ute of limitations. Patterson v. Wads- 
 worth, 8g N. Car, 407. 
 
 13. Enbanks v. Dobbs, 4 Ark. 173 ; 
 Mannell v. Briggs, 17 Vt. 176; Towle v. 
 Lovet, 6 Mass. 394; Kennerlyj/. Wilson, 
 I Md. 102; Coleman v. Woodwonh, 28 
 Cal. 567; Elrod v. Alexander, 4 Heisk. 
 (Tenn.) 342. 
 
 The amount recovered for the killing 
 of] an intestate is assets. Little Rock, 
 etc., R. Co. V. Townsend, 41 Ark. 382. 
 
 14. Ram. on Assets, 152 et seq. 
 
 15. Atkison v. Henry, 80 Mo. 670. 
 
 825 
 
Order of liability. ASSETS— ASSIGJVAfENTS. Definition. 
 
 5. Order of Liability of Assets. — The property of a decedent, in 
 the absence of special directions in his will, is liable to his debts 
 in the following order : 
 
 1. The general personal estate, not expressly or by implication 
 exempted. 
 
 2. Land expressly devised for the payment of debts. 
 
 3. Estates descending to 'the heir. 
 
 4. Real or personal estate devised or bequeathed charged with 
 debts, and disposed of subject to such charge. 
 
 5. General pecuniary legacies. 
 
 6. Specific legacies and real estate devised, whether specific or 
 residuary ; these contributing /r^ rata. 
 
 7. Real and personal property over which the testator has a 
 power of appointment, which power he has exercised.^ 
 
 6. Order of Priority of Debts. — The rule as to the legal priority 
 of debts of record, and by specialty over those by simple contract, 
 has been altered in England (see n. 7) and in most of the States. 
 In the majority of them it is provided by statute that debts shall 
 be paid in the following order: (i) funeral, medical, and admin- 
 istration expenses; (2) debts due the United States and ot.her 
 public debts; (3) all other debts pari passu''^ 
 
 7. Marshalling Assets. — The marshalling of assets is such an ar- 
 rangement of the different funds under administration as shall 
 enable all parties having equities thereon to receive their due 
 proportions, notwithstanding any intervening interests, liens, or 
 other claims of particular pefsons to prior satisfaction out of a 
 portion of those funds, as where A and B are creditors and there 
 are two funds available for A's claim and but one of them for B's, 
 in which case either A will be compelled to have recourse to the 
 fund not available to B, or if he has been paid from the other, 
 B will be subrogated to A's claim against the former fund.* 
 
 ASSIGNMENTS. (See also ASSIGNMENTS FOR BENEFIT OF 
 Creditors ; Bonds ; Choses in Action ; Deeds ; Fraudu- 
 lent Conveyances ; Judgments ; Mortgages.) 
 
 1 . Definition. ' Causes of Action. 
 
 2. What is Assignable. Partial Assignment of a Claim. 
 
 Future Earnings. 3. What constitutes an Assignment. 
 
 1. In General. 4. Notice of Assignment. 
 
 2. By Public Officers. \ests. 5. Effect of Assignment. 
 Expectancies and Future Inter- 
 
 1. Definition. — An assignment is a transfer or making over to 
 another of the whole of any property, real or personal, in posses- 
 sion or in action, or of any estate or right therein.* The term' 
 
 1. 2 Jarm. Wills, 622. 4. Bouvier's Law Diet. 
 
 2. Mass. Gen. Stat. c. gg, §1; 2 R. The common-law definition of an as- 
 S. (N. Y.) 87, § 27; Bason v. Hughart, 2 signment is " the transferring and setting 
 Tex. 476; Bank v. Gibbs, 3 McCord (S. over to another of some right, title, or 
 Car.), 377; Fields v. Wheatley, i Sneed interest in things in which a third party, 
 (Tenn.), 351; Pa. Act Feb. 24, 1838. not a party to the assignment, has a 
 
 8. Story's Eq. Jur. § 558; Wats. Comp. concern and interest." i Bac. Abr. 
 Eq. 36. 32g. 
 
 826 
 
What is Assignable. 
 
 ASSIGNMENTS. 
 
 What is Assignable. 
 
 denotes not only the act of transfer, but also the instrument by 
 which it is effected.^ 
 
 2. What is Assignable. — At common law the transfer of a chose in 
 action or right to a thing not in possession was forbidden, as 
 violating the rules against maintenance and champerty, and 
 because the vendor could not sell a thing he did not have. Such 
 an assignment was considered as passing to another a mere right 
 to recover in a suit at law, and as the ancient law abhorred litiga- 
 tion, it prevented the sale of possibilities or rights in action, and 
 refused to recognize the title of the assignee when he sought to 
 recover in a suit at law.** 
 
 But courts of equity have long since disregarded this rule, and 
 assignments of choses in action, possibilities, expectancies, and 
 things not in esse, will be protected and enforced in equity. The 
 assignee is regarded as the true owner of the chose in action, and 
 is entitled to use it for his own purposes.* 
 
 If the debtor assents to the transfer, the assignee may then 
 maintain a direct action against him upon the implied promise to 
 pay which results from the assent,* and if relief is necessary to 
 
 demand, was adopted as an auxiliary 
 
 1. Burrill on Assignments. 
 
 2. "It is to be observed that by the 
 ancient maxim of the common law a 
 right of entry or a chose in action cannot 
 be granted or transferred to a stranger, 
 and thereby is avoided great oppression, 
 injury and injustice." Co. Lie. 266, a. 
 
 So in Lampet's Case, 10 Rep. 48, Lord 
 Coke says: "The great wisdom and 
 policy of the sages and founders of our 
 law have provided that no possibility, 
 right, title, nor thing in action shall be 
 granted or assigned to strangers, for that 
 would be the occasion of multiplying of 
 contentions and suits, of great oppres- 
 sion of the people, and chiefly of terre- 
 tenants, and the subversion of the due and 
 equal execution of justice." 
 
 3. In Thalheimer v. Brinckerhoff, 20 
 Johnson (N. Y.), 380, the chancellor said: 
 " It was a principle of the common law that 
 a right of action could not be transferred 
 by him who had the right to another. 
 When we seek the reason of this rule, -we 
 find it in the motive already mentioned, 
 an apprehension that justice would fail 
 and' oppression would follow if rights of 
 action might be assigned. . . . Feeble, 
 partial, and corrupt rBust have been the 
 administration of justice where such a 
 reason could have force. In early times 
 this rule concerning rights of action was 
 rigorously enforced. As the entire right 
 of action could not be assigned, so no 
 part of it could ^e transferred, and no 
 man could purchase another's right to a 
 suit, either in whole or in part. -Hence 
 the doctrine of maintenance, which pro- 
 hibits contracts for a part of the thing in 
 
 regulation, to enforce the general princi- 
 ple which prohibited the transfer of all 
 rights of action. But the rule of the 
 common law that rights of action cannot 
 be assigned has in modern times been 
 reversed; the apprehension that justice 
 would be trodden down if property in 
 action should be transferred Is no longer 
 entertained; and the ancient rule now 
 serves only to give form lo some legal 
 proceedings. In the courts of equity this 
 rule was never followed, and those courts 
 have always considered and treated the 
 rule as unjust, and have supported as- 
 signments of rights of action. Expe- 
 rience has fully shown, not only that no 
 evil results from the assignments of 
 rights of action, but that the public good 
 is greatly promoted by the free commerce 
 and circulation of property in action, as 
 well as of property in possession." See 
 also Warmstrey v. Tanfield, I Ch. Rep. 
 29; Wright V. Wright, I Ves. R. 411; 
 Mandeville v. Welch, 5 Wheat. (U. S.) 
 283; Bacon v. Bonham, 33 N. J. Eq. 614; 
 Manufacturing Co. v. Marsh, gi Pa. St. 
 96; Kountz Tj. Kirkpatrick, 72 Pa. St. 
 376; Trull V. Eastman, 3 Mete. (Mass.) 
 121; Bispham's Eq. 214. 
 
 4. Tieman v. Jackson„5 Peters (U, S.), 
 597; Williams v. Everett, 14 East, 582; 
 Baron v. Husband, 4 B. & Ad. 611; Skin- 
 ner V. Somes, 14 Mass. 107; Crocker v. 
 Whitney, lo Mass. 316; Howry v. Todd, 
 12 Mass. 2B1; Bucklin v. Ward, 7 Vt. 
 195; Currier v. Hodgdon, 3 N. H. 82; 
 Barger v. Collins, 7 H. & J. (Md.) 213; 
 Clark V. Thompson, 2 R. I. 146. 
 
 827 
 
Vniat is Assignable, 
 
 ASSIGNMENTS. 
 
 Future Earnings. 
 
 protect or enforce his title, the assignee can have relief in a court 
 ■of chancery.^ ' 
 
 Future Earnings. — i. In General, — An assignment of wages to 
 be earned under an existing employment, made in good faith and 
 ■for a valuable consideration, is valid. Such an assignment is good 
 not only for the security and payment of a present indebtedness, 
 but for such advances as the assignor may find it necessary to 
 ■obtain, and although the workman works by the piece and his 
 wages per month vary.** And if there is a subsisting engagement 
 an assignment of future earnings will be sustained, although the 
 assignor is liable to removal at any time.* 
 
 Where, however, a person is not engaged in or under contract 
 ■for any employment, the mere possibility of being employed and 
 ■earning wages under that employment at a future time is not 
 assignable.* 
 
 1. Hammond v. Messenger, 9 Sim. 
 327; Ontario Bank v. Mumford, 2 Barb. 
 'Ch. (N. Y.) 596; Adair v. Winchester, 7 
 "G. & J. (Md.) 114; Hagar v. Buck, 44 
 Vt. 290. 
 
 2. Hartley v. Tapley, 2 Gray (Mass.), 
 565; Boylen v. Leonard, 2 Allen (Mass.), 
 407; Weed V. Jewett, 2 Mete. (Mass.) 
 ■608; Bracket! v. Blake, 7 Mete. (Mass.) 
 335; Emery v. Lawrence, 8 Cush. (Mass.) 
 151; Thayer ii. Kelley, 28 Vt. 19; Field 
 ■V. Mayor of New York, 6 N. Y. 179; Au- 
 .gur v. N. Y. Belting Co., 39 Conn. 536; 
 •Garland v. Harrington, 51 N. H. 409. 
 
 In Taylor v. Lynch, 5 Gray (Mass.); 49, 
 an order drawn by a working-man in con- 
 sideration of necessaries, and accepted 
 by his employer, was accordingly held to 
 be valid against a subsequent attaching 
 •creditor, although he was working by the 
 piece and might have withdrawn at any 
 'time. 
 
 In Ruple V. Bindley, 91 Pa. St. 296, 
 Ruple was under contract to put up the 
 stairs in a building in process of erection 
 by Bindley, and not having the means to 
 fulfil his contract, one Lewis agreed to 
 advance the same, receiving as security 
 an order from Ruple on Bindley for the 
 amount advanced, to be paid out of his 
 wages when the stairs were finished. 
 Held, that the order was a valid, equita- 
 ble assignment of the amount advanced. 
 
 And a written order to pay certain 
 •sums out of wages to be earned under a 
 subsisting engagement, and accepted by 
 the assignor's employer, applies to wages 
 earned under a new engagement entered 
 into by the workman immediately after 
 the expiration of the first, with the same 
 employer for lower wages. Wallace v. 
 Hey wood Chair Co., 16 Gray (Mass.), 
 ■tog. 
 
 In Gardner v. Hoeg, 18 Pick. (Mass.) 
 
 168, it was held that the share in the 
 profits of the voyage which a seaman in 
 a whaling-ship receives, according to 
 custom, in lieu of wages, is assignable 
 before the commencement of such voy- 
 age. The court said: " There is a suffi- 
 cient subject to which the contract was 
 to attach. The assignor had, by the 
 shipping articles, an inchoate right to a 
 distributive share of the oil upon the 
 making up the account at the end of the 
 voyage." 
 
 8. Payne v. Mayor of Mobile, 4 Ala. 
 333; Greene o. Bartholomew, 34 Ind. 235; 
 Billings V. O'Brien, 14 Abb. Pr. (N. S.) 
 (N. Y.) 246. 
 
 4. Mulhall v. Quinn, i Gray (Mass.), 
 105. In this case there was an assign- 
 ment of all claims and demands which 
 the assignor had or might have against 
 the city of Boston for money due or to 
 become due for services rendered to the 
 city in laying sewers, and the assignment 
 was accompanied by an irrevocable power 
 of attorney authorizing the assignee to 
 draw the money assigned. Notice of 
 the assignment was giVen to the city and 
 a trustee attachment issued. The assignor 
 at the time of the attachment was not 
 employed by the city, but had previously 
 been employed and after the assignment 
 was again employed. Held, that the 
 earnings between the assignment and the 
 attachment did not vest in the assignee. 
 " The future earnings," said Shaw, C. J., 
 "constitute a. mere possibility coupled 
 with no interest. There was no subsist- 
 ing engagement under which wages were 
 earned, and it is dependent altogether 
 upon a future engagement whether any- 
 thing would ever become due." 
 
 So, in a recent case in Northampton 
 County, Pennsylvania, the court held 
 that an assignment of unearned wages. 
 
What is Assignable, 
 
 ASSIGNMENTS. 
 
 By Public Officer^ 
 
 2. By Public Officers. — It is well settled in England that the 
 salary of a public officer which is paid to him for the purpose of 
 keeping up the dignity of his office and assuring a due discharge 
 of its duties cannot be assigned by anticipation. Such assign- 
 ments impair the efficiency of the public service, and are void as 
 against public policy. Thus the pay of an officer in the army/ 
 the salary of an assistant parliamentary counsel for the treasury,'-* 
 and of a clerk of the peace^ have been held not assignable.* 
 
 And the weight of authority in the United States is in accord, 
 ■vyith the rule which prevails in England.** 
 
 executed when the assignor was not in 
 the employment of the party from whom 
 payment of the wages is demanded, is 
 void as against public policy. Woodring 
 V. Lehigh Valley R. Co., 2 Pa. Co. C. Rep. 
 465. Schuyler, P. J., said: "We thinly all 
 assignments such as the one in contro- 
 versy here should be declared void as 
 being against the principles of public 
 policy. The present assignment is by a 
 day-laborer in consideration of groceries 
 and provisions furnished him and his 
 family, and it covers all wages, past and 
 future, due and to become due, to the 
 assignor from any person, iirm, or cor- 
 poration whatever, so long as the assig- 
 nee's claim remains unpaid. . . . Should 
 the law be declared to be that such an 
 assignment is valid, it is not difficult to 
 see that it would open the door to im- 
 providence and profusion on the part of 
 the assignor, and in the end to utter and 
 hopeless poverty." See also Trumbower 
 ■V. Ivey, 2 Pa. Co. C. Rep. 470. 
 
 In Jermyn v. Moffitt, 75 Pa. St. 399, 
 Leslie assigned to Moffitt " five dollars a 
 month of my earnings in the employment 
 of .the Delaware & Hudson Canal Co , 
 or with whomsoever I may be employed, 
 until the amount due said Moffitt is paid." 
 Notice of the assignment was given to 
 the defendant, but at the date thereof the 
 assignor was not in the defendant's em-' 
 ploy. Held, that the assignment was in- 
 sufficient to make a valid transfer of the 
 debt against the employer without his 
 acceptance. 
 
 A sale of fish hereafter to be caught in 
 the sea does not pass title to the fish 
 when caught. Law v. Pew, 108 Mass. 
 350. 
 
 1. Stone V. Lidderdale, z Anst. 233; 
 McCarthy v. Goold, i Ball. & B. 389. 
 
 2. Cooper v. Reilly, 2 Sim. 560. 
 
 3. Palmer v. Bate, 6 Moore, 28. 
 
 4. In Arbuthnot 71. Norton, 5 Moore 
 ' P. C. C. 219, it was taken for granted 
 
 that the salary of a judge given to him 
 for the support of the dignity of his office 
 would not be assignable. 
 
 In Flarty v. Odlam, 3 T. R. 681, the 
 half-pay of an army officer, being in part. 
 in view of future service, was held not to 
 be assignable, and Lord Kenyon saidr 
 " It might as well be contended that the 
 salaries of the judges which are granted 
 to support the dignity of the Stale and 
 the administration of justice may b& 
 assigned." 
 
 Arvd in Arbuckle v. Cowhan, 3 Bos. & 
 Pul. 328, the general principle was laid 
 down that such profits as a man receives, 
 in respect of the performance of a public 
 duty are, from their very nature, exempt 
 from attachment and incapable of assign- 
 ment, and that he who has not been em- 
 ployed to do the duty should not receive- 
 the emolument and reward. See alsct 
 Lidderdale v. Montrose, 4 T. R. 248;, 
 Barwick v. Read, i H. Bl. 627; Hill v. 
 Paul, 8 CI. & Fin. 307. 
 
 Pensions. — A pension for past services, 
 however, has been held to be assignable. 
 The pension of a retired officer of the 
 Indian navy, or of a county-court judge, 
 is liable to sequestration. Dent v Dent, 
 I L. R. P. & D. 366; Willcock v. Terrell,^ 
 3 Ex. D. 323. 
 
 Lord Eldon bbserved in Davis v. Marl- 
 borough, I Swanst. 79, "A pension for 
 past services may be aliened; but a pen- 
 sion for supporting the grantee in the 
 performance of future duties is inalien- 
 able." 
 
 5. Emerson v. Hall, 13 Peters (U. S.), 
 409. 
 
 In Bliss V. Lawrence, 58 N. Y. 442, it 
 was held that although a public officer 
 may have an assignable interest in his 
 salary not yet due, he cannot make a 
 valid assignment of it in advance, be- 
 cause public policy forbids such transac- 
 tions. An assignment by a United States 
 treasury official of a month's salary in 
 advance at a discount of ten per cent was, 
 on this ground, declared invalid. 
 
 And in Billings v. O'Brien, 14 Abb. 
 Pr. N. S. (N. Y.) 246, an assignment of 
 a similar character was declared invalid 
 on the ground "that it tends to impair 
 
 829 
 
What is Assignable. 
 
 ASSIGNMENTS. Expectancies— Future Interests. 
 
 Expectancies and Future Interests. — To support an assignment 
 at law, the subject-matter thereof must have actual or potential 
 existence at the time of the assignment.^ But courts of equity- 
 will uphold assignments not only of choses in action, but of con- 
 tingent interests and expectancies, and things having no present 
 actual existence but resting in mere possibility, if fairly made and 
 not against public policy; not as a transfer operative in presenti, 
 for that can only be of a thing in esse, but as a present contract, to 
 take effect and attach as soon as the thing' comes in esse.^ Such 
 
 the efficiency of the officer by diminish- 
 ing his interest in the performance of 
 his duties, and rendering him to a great 
 extent the mere slave or servant of his 
 creditor or assignee in working out a. 
 past-debtor obligation." 
 
 There are cases, however, in this 
 country which assert a different doctrine. 
 In Brackett v. Blake, 7 Mete. (Mass.) 
 335, an assignment of a quarter's salary 
 before the expiration of the quarter, 
 made by the city marshal, was declared 
 to be a possibility coupled with an inter- 
 est, and as such capable of being assigned. 
 See also Mac'omber «/. Doane, 2 Allen 
 (Mass.), 541. 
 
 So in The State Bank v. Hastings, 15 
 Wis. 75, an order drawn by the judge of 
 a circuit court on the State treasurer 
 directing the "said bank on the first of 
 October next to pay the amount of my 
 quarterly salary commencing on that 
 day," was held to vest the right irrevo- 
 cably in the payee; and the court criti- 
 cised the English cases invalidating such 
 assignments as being against public pol- 
 icy, as not applicable to the condition of 
 society or the principles of public policy 
 in this country. 
 
 In People w. Dayton, 50 How. Pr. 143, 
 a distinction is made between the un- 
 earned fees and the unearned salary of a 
 public officer, and it is held that an as- 
 signment of the unearned fees of a justice 
 or other public officer is valid. 
 
 A provision in copartnership articles 
 that all salaries and earnings received by 
 either partner from any office or employ- 
 ment shall be accounted for and paid 
 into the funds of the firm as though re- 
 ceived from debtors, is not forbidden by 
 any principle of public policy. Thurston 
 V. Fairman, 9 Hun (N. Y.), 585. 
 
 An assignment of his earnings by a 
 public officer, appointed for a definite 
 period of time, cannot extencj beyond his 
 existing term of office, and does not pass 
 to the assignee any sums 'earned subse- 
 quently to his reappointment. Twiss v. 
 Cheever, 2 Allen (Mass.), 40. ' 
 
 1. Petch V. Tutin, 15 Mees. & W. no; 
 Moody V. Wright, 13 Mete. (Mass.) 17; 
 
 Hope V. Hayley, 5 El. & B. 830, 845; 
 Skipper v. Stokes, 42 Ala. 255. • 
 
 2. Hobson v. Trevor, 2 P. Wms. 191; 
 Douglass V. Russell, 4 Sim. 524; Taylor 
 V. Palmer, 31 Cal. 240; Wells v. Foster, 
 
 8 Mees. & W. 149; Pierce v. Robinson, 
 13 Mees. & W. 123; Jenkins v. Stetson, 
 
 9 Allen (Mass.), 128; Hannon v. Christo- 
 pher, 34 N. J. Eq.'459; Dunham v. The 
 Railroad, i Wall. (U. S.) 268; Groot v. 
 Story, 41 Vermont, 533; Manufacturing 
 Co. V. Marsh, .91 Penn. St. 96; Lansden, 
 V. McCarthy, 45 Mo. 106. 
 
 The expectancy of an heir to his an- 
 cestor's estate may be assigned, and 
 will be enforced in equity after the death 
 of the ancestor, if made bona fide for a 
 valuable consideration. Wethered z/. 
 Wethered, 2 Sim. 183; Stover v. Eycle- 
 sheimer, 3 Keyes (N. Y.), 622; Powers' 
 App. 63 Penn. St. 443; Curtis v. Curtis, 
 40 Maine, 24; Fitzgerald v. Vestal, 4 
 Sneed (Tenn.), 258; Trull v. Eastman, 
 3 Mete. (Mass.) 121; Wright v. Bircher, 
 72 Mo. 179. 
 
 In McDonald v. McDonald, 5 Jones 
 Eq. (N. Car.) 211, plaintiff sold to his 
 nephew, the defendant, all claiira in ex- 
 pectancy to the estate of his aunt that lie 
 might acquire as her heir-at-law or lega- 
 tee, and executed a deed to him therefor. 
 Held, that the assignment was operative 
 and binding, and, as the expectancy had 
 fallen into possession, would be en- 
 forced. 
 
 In Powers' Appeal, 63 Penn. St. 443, 
 the sons received advancements from 
 their father and executed receipts to him 
 for the sums with releases in full of their 
 shares of his estate. Held, on his death 
 intestate, that they were estopped from 
 claiming any part of his estate. Read, J., 
 said: "An heir or an expectant devisee 
 or legatee may, in the lifetime of the in- 
 testate or testate, in equity, sell or assign 
 his expectant or contingent interest, what- 
 ever it may turn out to be, upon the 
 death of the person from whom it may 
 come, which contract, if made upon a 
 valuable consideration, a court of equity ' 
 will enforce. If so, there can be no rea- 
 son why a father should not make such a. 
 
 830 
 
What is Assignable. 
 
 ASSIGNMENTS. Expectancies— Future Interests. 
 
 assignments are enforced on the ground that the assignee is enti- 
 tled to have immediate specific performance of the contract to as- 
 sign, as soon as the property comes into existence in the hands of 
 the assignor, who holds it then in trust for the assignee, whose title 
 cannot be disturbed by an execution creditor of the assignor.* But 
 
 contract with a son, which shbuld entirely 
 bar all his claim as an heir to any part of 
 his parent's estate." See also Quarles -u. 
 Quarles, 4 Mass. 680; Kenney v. Tucker, 
 8 Mass. 143. 
 
 So an antenuptial contract, by which a 
 woman agrees to relinquish her distribu- 
 tive share of her intended husband's es- 
 tate, will be enforced in equity, if entered 
 into understandingly, for an adequate 
 consideration ,and without fraud or mis- 
 representation on his part. Sullings v. 
 Richmond, 5 Allen (Mass.), 187; Tarbell 
 V. Tarbell, 10 Allen (Mass.), 278. 
 
 In Meriweather v. Herran, 8 B. Mon- 
 roe (Ky.), 162, a deed assigning every 
 interest of the assignor in the estate of 
 his father "due or to become due" to 
 him as one of the heirs, was held to pass 
 an interest of the assignor in a claim 
 against the State of Virginia for his 
 father's Revolutionary services, although 
 not known to be in existence at the time 
 of the assignment. 
 
 But in Needles' Executor v. Needles, 
 7 Ohio, 432; s. c, 70 Am. Dec. 85, a re- 
 lease by a married daughter, in which 
 her husband joined, given to her father, 
 of all her expectation or hope of inherit- 
 ance of his estate, was not sustained, the 
 court holding that the intestate laws can- 
 not be- set aside by such an agreement, 
 and the parties thereto did not stand 
 upon an equal footing. 
 
 1. Bispham's Eq. 215. 
 
 Tuture Acquisitions. — In Holroyd v. 
 Marshall, 10 H. L. Cas. 209, Lord Chan- 
 cellor Campbell held that where there 
 had been an agreement, by which the 
 machinery and implements thereafter to 
 be brought into a mill should be subject 
 to the trusts of a mortgage, and such 
 machinery was afterwards brought in and 
 had been taken in execution by creditors 
 of the assignor before the assignees had 
 done anything to perfect their title, the 
 assignment was invalid as against the 
 execution creditors. But on appeal the 
 House of Lords reversed the decree. 
 
 The principle that mortgages of per- 
 sonal property to be acquired in the future 
 are valid in equity, is well established in 
 this country. Where the lease of a farm 
 gave the lessor a lien upon "personal 
 property which may be put on said prem- 
 ises," it was held that the equitable title 
 attached immediately upon the acquisition 
 
 of the property. McCaffrey v. Woodin, 
 65 N. Y. 459- 
 
 So also an assignment of the future 
 freight, earnings, and profit of a ship will 
 be upheld in equity. In re Ship Warre, 8 
 Price, 269, n. 
 
 And mortgages by railroad companies 
 of rolling-stock and other personal prop- 
 erty (Jones on Mortgages, §§ 152, 153), 
 and of future crops (Butt v. Ellett, 19 
 Wall." (U. S.) 544; Apperson v. Moore, 
 20 Ark. 56; Everman v. Robb, 52 Miss. 
 653), and of future stock of goods (Brett 
 V. Carter, 2 Lowell's Dec. 458), are valid 
 in equity. 
 
 money to become Due. — So an assign- 
 ment of money to become due upon per- 
 formance of an existing contract is valid in 
 equity. Hassie v. The Congregation, 35 
 Cal. 388; Hall V. Buffalo, 2 Abb. App. 
 307; Devlin v. Mayor of N. Y., 63 N. Y. 
 15; First Nat. Bk. v. Kimberlands, 16 
 W. Va. 592; Ruple v. Bindley, 91 Penn. 
 St. 299. 
 
 In Field v. Mayor of N. Y., 6 N. Y. 
 179, the plaintiff held an assignment 
 made by Bell to Garread of all bills that 
 might become due to Bell for printing, 
 paper, and stationery done for or fur- 
 nished the city, to the amount of $1500. 
 The bills appeared to have accrued and 
 the services to have been rendered after 
 the date of the assignment, notice of 
 which had been given to the city control- 
 ler. Held, that the assignment was valid 
 as an agreement, by force of which an 
 equitable title to the benefit of the 'bills 
 as they became due vested in Field as as- 
 signee of Garread. As to the objection 
 that the assignment did not pass any in- 
 terest, as there was no contract at the 
 time between Bell and the city, the court 
 say: "There was indeed no present, ac- 
 tual, potential existence of the thing to 
 which the assignment or grant related, 
 and therefore it could not and did not 
 operate eo instanti to pass the claim 
 which was expected thereafter to accrue 
 to Bell against the corporation; but it 
 did nevertheless create an equity, which 
 would seize upon those claims as they 
 should arise, and would continue so to 
 operate until the object of the agreement 
 was accomplished." 
 
 So also an assignment of the proceeds 
 of future expected sales of goods is valid 
 in equity. Manutacturing Co. v. Marsh, 
 
 831 
 
What is Assignable, 
 
 ASSIGNMENTS. 
 
 Causes of Action. 
 
 an assignment of an expectancy to be enforced in equity must be 
 founded upon a valuable consideration.* 
 
 Causes of Action. — The right of action for mere personal torts, 
 such as assault and battery, false imprisonment, malicious prose- 
 cution, defamation, and deceit, which die with the party and do 
 not survive to his personal representatives, cannot be assigned.** 
 
 91 Penn. St. 96. And an assignment of 
 a patent not yet issued. Goodyear v. 
 Day, 6 Duer (N. Y.), 161. And of costs 
 not yet accrued in a pending suit. Ely v. 
 Cooke, 9 Abb. Pr. (N.Y.) 377. And of a 
 right to insurance money under a policy 
 before a loss has hajipened. Bibend v. 
 Liverpool Ins. Co., 30 Cal. 86; Bergson 
 V. Builders' Ins. Co., 38 Cal. 541. 
 
 1. Bayler v. The Commonwealth, 40 
 Penn. St. 37; Powers' App., 63 Penn. St. 
 443; Wright V. Wright, I Ves. 412; Jones 
 V. Roe, 3 T. R. 63, 94. 
 
 Personal Services. — A contract for the 
 performances of personal duties or servi- 
 ces is unassignable, so as to vest in the 
 assignee the right to compel its execu- 
 tion. Hayes v, Willio, 4 Daly (N". Y.), 
 259; Davenport v. Gentry, 9 B. Mon. 
 (Ky.) 427. 
 
 Nor can one who has covenanted to do 
 an act requiring skill and proficiency, 
 put another in his place without the con- 
 sent of the opposite party. Flanders v. 
 Lamphear, 9 N. H. 201; Bethlehem v. 
 Annis, 40 N. H. 34, 40; Burger v. Rice, 
 3 Ind. 125. 
 
 Nor can the right to the services of a 
 laborer or servaht be assigned. Bethle- 
 man v. Annis, 40 N. H. 34; Davenport 
 V. Gentry, 9 B. Mon. (Ky.) 427. 
 
 In Lansden v._ McCarthy, 45 Mo. 106, 
 defendant entered into a written contract 
 with the assignors of the plaintiff, by which 
 he agreed to furnish meat to them at a 
 certain hotel for the ensuing year at a 
 certain priee. The plaintiffs afterwards 
 became the proprietors of said hotel and 
 took an assignment of the meat contract, 
 and notified defendant to continue his de- 
 liveries of meat to plaintiffs, which he re- 
 fused to do. Held, that the contract was 
 not assignable without the defendant's 
 consent. So, a note or bond, payable 
 wholly or partly in persona! services, is 
 not assigaable. Henry v. Hughes, i J. 
 J. Marsh. (Ky.) 454. 
 
 And a license to shoot, fish, or exer- 
 cise any other right in the land of an- 
 other, which is not in the nature of prop- 
 erty, is a personal trust or confidence 
 which cannot be delegated. Cowles v. 
 Kidder, 24 N. Y. 564. 
 
 2. Comegys v. Vasse, i Peters (U. S.), 
 213; Borst V. Baldwin, 30 Barb. (N. Y.) 
 
 182; Seizer v. Mali, 32 Barb. (N. Y.) 79; 
 Pulvtr V. Hi.rris, 52 N. Y. 75. 
 
 In Rice v. Stone, I Allen (Mass.), 566, 
 the question was whether a claim for in- 
 juries to the person was assignable after 
 verdict anr' before final judgment there- 
 on. Held that it was not. Chapman, 
 J., said; " In respect to all claims for per- 
 sonal injuries, the questions put by Lord 
 Abinger in Howard v. Crowther, 8 M. & 
 W. 603, are applicable: ' Has it ever been 
 contended that the assignees of a bank- 
 rupt can recover for his wife's adultery, 
 or for an assault? How can they repre- 
 sent his aggravated feelings?' And we 
 may add the broader inquiry — Has any 
 court of law or equity ever sanctioned a 
 claim by an assignee to compensation for 
 wounded feelings, injured reputation, or 
 bodily pain suffered by an assignor?" 
 
 A right of action for debauching a step- 
 daughter is not assignable. The People 
 V. Tioga Common Pleas, 19 Wend. (N. 
 Y.) 73. 
 
 In New York everything that can be 
 transmitted to the personal re^presenta- 
 tives of a person is assigiiable. Smith v. 
 Smith, 9 Abb. Pr. N. S. (N. Y.) 422; 
 Mackey v. Mackey, 43 Barb. (N. Y.) 61; 
 Gould V. Gould, 36 Barb. (N. Y) 275. 
 
 Whether a cause of action is assignable 
 or not, depends mainly on whether or not 
 it would survive to the executor or ad- 
 ministrator of the assignor, in case of his 
 death. Dininny v. Fay, 38 Barb. (N. Y.) 
 20; Devlin v. Mayor, 63 N. Y. 15. 
 
 ■Phe maxim that personal actions die 
 with the person is now confiped in New 
 York to claims for naked deceits, and for 
 injuries to ihe persori, reputation, and 
 feelings. Wade v. Kalbfleisch, 15 Abb. 
 Pr. N. S. (N. Y.) 17; Meech v. Stoner. 
 19 N. Y. 29; Cox V. R. Co., II Hun 
 (N. Y.), 623. 
 
 In Wade v. Kalbfleisch, 15 Abb. Pr. 
 N. S. (N. Y.) 17, an action was brought 
 to recover c" images for the brtach of an 
 alleged promise of marriage. After the 
 case was put down for trial the defendant 
 died. Held, that the cause of action did 
 not survive. ' ' The promise of marriage, " 
 said the court, "is merely personal; the 
 action for the breach of it seeks redress 
 for disappointed hopes, wounded pride, 
 humiliation, for the loss of coveted society 
 
 833 
 
"WhaX is Assignable. 
 
 ASSIGNMENTS. Partial Assignment of Claim. 
 
 So the assignment of a bare right to file a bill in equity for a 
 Jraud committed on the assignor will be held void, as being against 
 public policy and savoring of maintenance. ^ 
 
 A right of action to recover damages for an injury to property, 
 real or personal, may, however, be assigned.* 
 
 Partial Assignment of a Claim. — It was said in Mandeville v. 
 Welch,* that an order drawn on a fund for only a part thereof 
 
 and protection; it may be for the loss of 
 Jiappiness." See also Stebbins v. Palmer, 
 l3 Mass. 71; Smith w. Sherman, 58 Mass. 
 408; Lattimore v. Simmons, 13 S. & R. 
 .(Pa.) 184. 
 
 The principle favoring the liability or 
 reparation is the same, whether the action 
 be by or against the personal representa- 
 tives. Wade V. Kalbfleisch, 15 Abb. Pr. 
 N. S. (N. Y.) 17. 
 
 Neither a cause of action for breach 
 of promise of marriage, nor for seduc- 
 tion, passes to an assignee in banlsruptcy 
 before judgment. Ex parte Charles, 14 
 East, 197; Buss V. Gilbert, 2 M. & S. 70. 
 
 A right of action for damages for de- 
 ceit, in falsely recommending the credit 
 of a person, is not assignable. ' Zabriskie 
 V. Smith, 13 N. Y. 322; Smiths. R. Co., 
 .28 Barb. (N. Y.) 606; Graves v. Spier, 58 
 Barb. (N. Y.) 384; Sheldon v. Wood, 2 
 Bosw. (N. Y.) 277. 
 
 But in Johnston v. Bennett, 5 Abb. Pr. 
 N. S. (N. Y.) 331, it was held that a cause 
 of action for procuring a sale of goods by 
 false representations is assignable, and 
 -Zabriskie v. Smith, 13 N. Y. 322 was crit- 
 icised. The same case was also crit- 
 icised in Jackson v. Daggett, 24 Hun (N. 
 Y.), 205, as being in conflict with Haight 
 w. Hayt, 19 N. Y. 464. 
 
 The court held in Jackson v. Daggett, 
 ■24 Hun (N. Y.), 205, that a cause of action 
 against a sheriff for his failure to return 
 an execution against property within the 
 time required by law, and for making a 
 ;false return, is assignable; citing Paine 
 V. Ulmer, 7 Mass. 317, where an action 
 ?lgainst a sheriff for the default of his 
 deputy in not returning an execution was 
 held to survive to the administrator of the 
 judgment creditor. 
 
 .^n action for the malicious abuse of 
 legal process, being a personal tort, is 
 not the subject of assignment under an 
 "insolvent laW. Sommer v. Wilt, 4 S. & 
 R. (Pa.) 19, 28. 
 
 In Iowa a claim based upon a per- 
 -sonal tort which dies with, the party may 
 be assigned. Gray v. McCallister, 50 la. 
 497. 'And a judgment not in being may 
 •be assigned pending the litigation. Weire 
 V. City of Davenport, 11 la. 49. The 
 liability assigned in this case was for a 
 
 tort, but the court said, "Such a liability 
 may be sold or transferred if bona fide, 
 so as to give the holder a priority over 
 an attaching creditor of the transferrer. 
 It may be sold just as a horse or any 
 other property may be, and the title pass 
 just as completely." See also Vimont v. 
 Railway Co., 64 la. 520. The Iowa code 
 provides that "all causes of action shall 
 survive, and may be brought, notwith- 
 standing the death of the person entitled 
 or liable to the same.'' 
 
 1. Milwaukee & Minnesota R. v. Mil- 
 waukee & Minn. H-, 20 Wis. 183; Gard- 
 ner V. Adams, 12 Wend. (N. Y.) 297; 
 Marshall v. Means, 12 Georgia, 61 ; Day- 
 ton v. Fargo, 45 Mich. 153; De Hoghton 
 V. "Money, L. R. 2 Ch. i6g. 
 
 Lord Chief Baron Lyndhurst remarked 
 in Prosser v. Edmunds, i Younge & Coll. 
 Exch. R. 481, that courts of equity had 
 relaxed the ancient rule as to assign- 
 ments of choses in action, " but only in 
 the cases where something more than a 
 mere right to litigate has been assigned." 
 The lien of a vendor for purchase-money 
 has been held not to be assignable. Rich- 
 ards V. Learning, 27 111. 431. 
 
 2. Gillett V. Fairchild, 4 Denio (N. Y.), 
 80; Byxbie v. Wood, 24 N. Y. 612; Hud- 
 son V. Plitt, n Paige (N. Y.), 180; Mc- 
 Bride v. Farmers' Bank, 26 N. Y. 456; 
 Butler V. The Railroad, 22 Barb. (N. Y.) 
 no; North v. Tiirner. 9 Serg. & R. (Pa.) 
 244; Lazard v. Wheeler, 22 C^l. 142. 
 
 A right of action for the conversion of 
 personal property is assignable. McKee 
 v. Judd, 12 N. Y. 622; Graves v. Spier, 
 SS^Barb. (N. Y.) 386; Sheldon v. Wood, 
 2 Bosw. (N. Y.) 277; Jordan v. Gillen, 44 
 N. H. 424. 
 
 All demands arising from injuries to 
 property are "assignable in New York. 
 Foy V. The Railroad, 24 Barb. (N. Y.) 
 383; Smith v. The Railroad, 28 Barb. 
 (N. Y.) 606. 
 
 Where property is lost or injured 
 through the negligence of an agent, 
 bailee, or common carrier the transfer of 
 such a cause of action will confer an 
 equitable right on the assignee. Grant 
 V. Ludlow, 8 Ohio (N. S.), 37; Smith v. 
 The Railroad, 28 Barb. (N. Y.) 605. 
 
 3. 5 Wheat. (U. S.) 286. 
 
 I C. of L.— 54 
 
 833 
 
What is Assignable. 
 
 ASSIGNMENTS. 
 
 What Constitutm, 
 
 does not constitute an assignment of that part, on the ground 
 that a creditor shall not be permitted to split up a, single cause of 
 action into many actions without the assent of his debtor. 
 Although this rule has been approved in several cases,* as a 
 doctrine of equity its soundness may well be questioned, and the 
 weight of authority seems to be that the assignment of apart only 
 of an entire demand will be upheld in equity.* 
 
 3. What Constitutes an Assignment. — In order to constitute a valid 
 
 1. Tierraan v. Jackson, 5 Peters (U.S.), 
 580; Palmer v. Merrill, 6 Cush. (Mass.) 
 282; Tripp V. Brownell, 12 Cush. (Mass.) 
 376; Beardslee v. Morgener, 73 Mo. 22; 
 Nat. Bk. V. Noonan, 88 Mo. 372; Mc- 
 Williams v. Webb, 32 Iowa, 577; Fair- 
 grieves V. Navigation Co., 2 Phila. Rep. 
 182. See also Jermyn v, Moffitt, 75 
 Penn. St. 399; Chicago R. Co. v. 
 Nichols, 57 111. 467. 
 
 In Gibson v. Cooke, 20 Pick. (Mass.) 
 15, it was held that a draft for a part only 
 of the debt due from the drawee to the 
 drawer does not, against the consent of 
 the drawee, amount to an assignment, 
 for the debtor is not to be subjected, to 
 distinct demands on the part of several 
 persons when his contract was one and 
 entire. 
 
 8. Fitzgerald v. Stewart, 2 Sim. 333; 
 Lett V. Morris, 4 Sim. 607; Stanberry v. 
 Smythe, 13 Ohio St. (N. S.) 495; Lapping 
 V. t)\ifiy, 47 Ind. 51; Whitney v. Cowan, 
 55 Miss. 626; Clafflin v. Kimball, 52 Vt. 
 7; Public Schools v. Heath, 15 N. J. Eq. 
 22; Caldwell v. Hartupee, 70 Penn. St. 
 74, 79 ; Phoenix Iron Co. v. Phila.. 2 
 Weekly Notes Cases (Phila.) N. 596; 
 Canty v. Latterner, 31 Minn. 239. 
 
 In Risley v. Phoenix Bank, 83 N. Y. 
 318, the court say: "The claim that 
 there can be no valid assignment of a 
 part of an entire debt or obligation is op- 
 posed to the well-settled rule in this 
 State." 
 
 In Daniels v. Meinhard, 53 Georgia, 
 359, it was held that a holder of a fire- 
 insurance policy, after a loss, might as- 
 sign in writing an interest in the same to 
 a creditor to the extent of the creditor's 
 debt. 
 
 In Exchange Bank w.. McLoon, 73 
 Maine, 498, the cases are reviewed in an 
 exhaustive opinion, and it is there held 
 that a partial assignment of an entire de- 
 mand is valid in equity against the con- 
 sent of the debtor. 
 
 Peters, J., says: " In a court of equity, 
 however, the objections to a partial as- 
 signment of a demand which are formid- 
 able in a court of l^w disappear. In 
 equity the interests of all parties can be 
 determined in a single suit. The debtor 
 
 can bring the entire fund into court and 
 run no risks as to its proper distribution. 
 If he be in no fault, no costs need be im- 
 posed upon him, or they may be awarded 
 in his favor. The debtor is not the only- 
 party whose interests should be consid- 
 ered. There is as much natural equity, 
 in many cases, in protecting an assign- 
 ment of a part of a claim as an assign- 
 ment of the whole of it. Equitable as- 
 signments are the outgrowth of the re- 
 quirements and refinements of the present 
 business era. In many ways, directly 
 and indirectly, do circumstances create 
 assignments of parts of funds, in dealings 
 through servants, tenants, consignees, 
 bankers, and other agencies. Disastrous 
 results will often be experienced by de- 
 serving and innocent persons if this boon 
 be not granted by courts of equity." 
 
 In Oakes v. Oram, 43 Leg. Int. (Pa.) 
 520, it was held by the lower court that 
 an order issued by A. upon B. to pay to 
 C. a sum "out of moneys which may be- 
 come due me for coal sold and delivered " 
 in a month subsequent to the date of the 
 order, unaccepted by B., but left in his 
 possession, is an equitable assignment of 
 so much of the fund in B's hands as is 
 specified in the order. And upon 
 appeal, the supreme court being 
 equally divided in opinion as to the 
 correctness of this decision, the decision 
 below was affirmed. 
 
 In Pennsylvania a partial assignment 
 of a claim upon a municipal corporatipn 
 is held not binding upon the corporation, 
 and to amount merely to an agreement 
 to pay out of a particular fund. Geist's ■ 
 App. 104 Penn. St. 351; Appeals of the 
 City of Phila., 86 Penn. St. 179; Buckley 
 V. Eckel, 3 Penn. St. 368; City of Erie, 
 V. Knapp, 29 Penn. St. 173. 
 
 These dpcisiohs rest upon the ground 
 that the policy of the law is against per- 
 mitting individuals by their private con- 
 tracts to embarrass the financial officers 
 of a municipality, and subject them to the 
 responsibilities and costs of adjudicating 
 contracts to which the municipality is not 
 a party. But see Field v. Mayor of N. 
 Y., 6 N. Y. 179; Parker v. City of Syra- 
 cuse, 31 N.rY. 376. 
 
 834 
 
What Constitutes. 
 
 ASSIGNMENTS. 
 
 What ConstitntM. 
 
 assignment of a debt or other chose in action in equity, no partic- 
 ular form of words is necessary. Any words are sufficient which 
 show an intention of transferring or appropriating the chose in 
 action to the assignee for valuable consideration. ^ Nor is any 
 written instrument required. Any order, writing, or act which 
 makes an appropriation of a fund amounts to an equitable assign- 
 ment of the fund. 
 
 An oral or written declaration may consequently be as effectual 
 as the most formal instrument, and pass the right to an obligation 
 under seal or of record.* 
 
 So an order payable out of a particular fund operates as an 
 equitable assignment of the fund, not only as between the drawer 
 
 J. Eq. 123; Thompson v. Emery, 7 Foster 
 (Mass.), 269. 
 
 In Dunn v. Snell, 15 Mass. 481, a parol 
 assignment of a judgment for a valuable 
 consideration was sustained. See also 
 
 1. Thompson v. Spies, 13 Sim. 469; 
 Burn V. Carvalho, 4 My. & Cr. 690; 
 Cook V. Black, i Hare, 390; Chowne v. 
 Baylis, 31 Beav. 351. 
 
 In Row V. Dawson, i Vesey, 331, Lord 
 Hardwicke observed that " no particular Ford v. Stuart, 19 Johns. Rep. (N.Y.)342. 
 
 words are necessary." 
 
 Whenever it appears that it was the 
 intention and understanding of the parties 
 to an agreement that the transaction 
 shall be an assignment, it will have that 
 effect, and the interest of the assignee 
 will be protected. Pass v. McCrea, 36 
 Miss. 143; Kimball v. Donald, 20 Mo. 
 
 577- 
 
 The intention need not be expressed in 
 terms, and may be implied from any act 
 or instrument which admits of such in- 
 terpretation, and is not inconsistent with 
 any other. Garnsey v. Gardner, 49 
 Maine, 167. 
 
 An order for the amount due or the 
 delivery of the instrument by which the 
 debt is secured is an equitable assign- 
 ment, if so intended. Laimon z/. Smith, 
 7 Gray (Mass.), 150; McEwen v. John- 
 son, 7 Cal. 258; Jones v. Witter, 13 
 Mass. 304; Grover v. Grover, 24 Pick. 
 (Mass.) 261. 
 
 Nor is it necessary that the party re- 
 ceiving the order should, in some way. 
 
 In Kessel v. Albetis, 56 Barb. (N. Y.) 
 362, a parol assignment of a claim for 
 the price of goods sold and delivered was 
 held to be valid. 
 
 An agreement between attorney and 
 client that the former should have $100 
 for his services "out of the verdict," in 
 an action for unliquidated damages, 
 operates as an equitable assignment to 
 that extent of the sum recovered, and is 
 good against an attaching creditor of the 
 client. Patten v. Wilson, 34 Penn. St. 
 299. 
 
 So in England a valid equitable as- 
 signment, if it be clearly proved, may be 
 made verbally. See Gurnell v. Gardner, 
 9 Jurist (N. S.), 1220; Riccard v. Prich- 
 ard, I K. &J. 277, 279; Field v. Megaw, 
 4 L. R. (C. P.) 660. 
 
 In Gurnell v. Gardner, 9 Jurist (N. S.) 
 1220, J. G., being indebted to the plaintiff, 
 and having purchased some wool of B., in 
 consideration of the debt due to the plain- 
 tiff, and to secure payment thereof and 
 with the intention of assigning the wool 
 
 enter into a contract to hold the funds for over to plaintiff, in an interview with the 
 
 the assignee. Burn v. Carvalho, 4 My. 
 & Cr. 6go. ' 
 
 The intention, however, to create a 
 charge must be shown. Thus a mere let- 
 ter of instruction to a banker not written 
 
 plaintiff said, " There is the wool which 
 has gone to IJoncaster; go and sell that 
 wool; pay B. the balance due to him on 
 such wool, and keep the remainder your- 
 self." J. G., died a few hours afterwards. 
 
 with any intent to create a charge on a and his administrators claimed the pro- 
 
 fund in his hands, will not amount to an 
 equitable assignment. Hopkinson v. 
 Foster, ig L. R. Eq. 74. 
 
 2. Clemson v. Davidson, 5 Binn. (Pa ) 
 392, 398; Wiggins V. McDonald, 18 Cal. 
 126; McWilliams v. Webb, 32 Iowa, 577; 
 Garnsey v. Gardner, 49 Maine, 167; 
 Spiker v. Nydegger, 30 Md. 315; Jordan 
 V. Gillen, 44 N. H. 424; Noyes v. Brown, 
 33 Vt. 431; Shannon v. Hoboken, 37 N. 
 
 ceeds of the wool which had been sold by 
 the plaintiff. But the court held that the 
 plaintiff had established an equitable lien 
 and his right to retain the proceeds. 
 Stuart, V. C, said: " It seems to me to 
 be impossible to resist the plaintiff's 
 claim on the ground that there was no 
 valid equitable assignment in writing. I 
 find no law which says a valid equitable 
 lien cannot be created by parol," 
 
 835 
 
What Constitutes. 
 
 ASSIGNMENTS. 
 
 What Constitntes. 
 
 and payee, but as regards the drawee, though not accepted by 
 him.i But an unaccepted bill or draft payable generally, and not 
 drawn upon a particular fund, is not a valid assignment af the fund, 
 and creates no liability upon the drawee and no lien in favor of 
 the payee.'-* Where, however, a bill or draft is drawn upon a par- 
 
 1. East Lewisburg L. & M. Co. v. 
 Marsh, 91 Penn. St. 96; Clark v. Mau- 
 ran, 3 Paige Ch. R. (N. Y.) 373; McLel- 
 lan V. Walker, 26 Maine, 114; Newby v. 
 Hill, 2Met. (Ky.) 530; Ex parte Butt, L. 
 R. 4 Ch. D. 419; Hunt v. Mortimer, 10 
 B. & C. 44; Richardson v. Rust, 9 Paige 
 (N. Y.), 243; Caldwell v. Hartupee, 70 
 Penn St. 74; Conway v. Cutting, 51 N. 
 H. 407; McWilliams v. Webb, 32 Iowa; 
 517; Walker v. Mauro. 18 Missouri, 564; 
 Spain i/. Hamilton, i Wallace (U.S.), 604; 
 Blin V. Pierce, 20 Vermont, 25. 
 
 Draft upon a Particular Fund. — In Nes- 
 mith V. Drum, 8 W. & S. (Penn.) 9, it was 
 held that a draft upon a particular fund 
 in the hands of an attorney for collection 
 is an equitable assignment of it, and al- 
 though not accepted by the attorney, yet 
 it is not afterwards subject to be attached 
 for the debt of the drawer. 
 
 So an order for part of the proceeds of 
 a note, though not accepted by the trustee 
 for collecting the note, operates as an 
 equitable assignment. Caldwell v. Har- 
 tupee, 70 Penn St. 74. 
 
 In Cutts V. Perkins, 12 Mass. 206, a 
 draft was made by Abbott, the owner and 
 master of a ship, payable out of certain 
 freight money due him from the defend- 
 ant. Afterwards the administrator of 
 the drawer brought an action for the 
 freight. Held, that the draft was an as- 
 signment of Abbott's claim for the freight. 
 See also Chase v. Petroleum Bank, 66 
 Penn. St. 169; Phoenix Iron Co. v. Phil- 
 adelphia, 2 Weekly Notes Cases (Phila.) 
 596; Cabadaw. Dejongh, I Weekly Notes 
 Cases (Phila.), 342. 
 
 In Burn v. Carvalho, 4 Myl. & Cr. 
 690, the plaintiffs were merchants in 
 London. Fortunato, a merchant in 
 Liverpool, being under pecuniary obliga- 
 tions to them, and having property, in the 
 hands of his agent Rigo in a foreign 
 port, promised and agreed with the plain- 
 tiffs to apply such property to the dis- 
 charge of his liability to the plaintiffs, and 
 sent directions to Rigo for that purpose, 
 but became bankrupt before they reached 
 him. The Lord Chancellor held that the 
 plaintiffs had a good title in equity to the 
 goods, laying down the rule to be that 
 " in equity an order given by a debtor 
 to his creditor upon a third person hav- 
 ing funds of the debtor to pay the credi- 
 tor out of such funds is a binding equi- 
 
 table assignment of so much of the 
 funds." 
 
 In £x parte South, 3 Swanst. 392, Lord 
 Eldon says, " If a creditor gives an order 
 on his debtor to pay a siim in discharge 
 of his debt, and that order is shown to 
 the debtor, it binds him." 
 
 2. Harris v. Clark, 3 Comstock (N. Y.), 
 93; Covvperthwaite v. Sheffield, 3 Com- 
 stock (N. Y.), 243; Mandeville v. Welch, 
 5 Wheat. (U. S.) 283; Sands v. Matthews, 
 27 Alabama, 399; Hoyt v. Story, 3 Barb. 
 (N. Y.) 262; Ford v. Angelrddt, 37 Mo. 
 
 57- 
 
 In Kimball v. Donald, 20 Missouri, 
 577, the drawee promised to apply any 
 balance in his hands belonging to the 
 drawer in payment of the bill, and subse- 
 quently refused to accept it. J^elit, tiiat 
 it could not take effect as an equitable as- 
 signment. The court said: " No one 
 supposes that it was the intention of the 
 parties, at the time this bill was drawn, 
 that, if it could not take effect as a bill, 
 on account of the refusal of the drawee to 
 accept, that then it should operate as an 
 equitable assignment of whatever funds 
 the drawee might have in his hands be- 
 longing to the drawer. That event was 
 already provided for by the drawer's un- 
 dertaking to pay himself upon such re- 
 fusal." 
 
 In Hopkins v. Beebe, 26 Penn. St. 86, 
 Black, J., said: " The proposition that a 
 bill of exchange does, propria vigore, vest 
 in the payee a title to the effects sent to 
 meet it, or give the payee a lien upon 
 such effects, so that he can demand them 
 or their proceeds from a person to whom 
 the drawee has transferred or passed 
 them away is altogether unsupported by 
 any authority or custom that we know 
 of. Such a rule would certainly not pro- 
 mote the convenience Or the safety of 
 commercial business. The contrary doc- 
 trine, that ' ' the bill has no such operation, 
 but that the holder must look to the 
 parties whose names are on it, and not 
 to any particular fund, has cases in its 
 favor quite numerous enough to sustain 
 a principle so simple and just — more in- 
 deed than could have been expected on a 
 point so little likely to be raised." 
 
 In Harris v. Clark, 3 Comstock (N.Y.), 
 93, the court say: " The principle appears 
 to be firmly established that a bill of ex- 
 change does not of itself give to the holder 
 
 836 
 
What Constitutes, 
 
 ASSIGNMENTS. 
 
 What Constitutes. 
 
 ticular fund specified, it is a good equitable assignment after notice, 
 even without acceptance. Upon notice the drawee is bound to 
 keep the fund as a special deposit to meet the draft.^ And the 
 better opinion is that an unaccepted check does not operate as an 
 equitable assignment of a deposit standing to the drawer's credit, 
 nor does it confer any lien.* A mere promise or agreement to 
 
 either at law or in equity a lien upon the 
 funds of the creditor in the hands of the 
 debtor, until after acceptance by the 
 latter." See also Cowperthwaite v. Shef- 
 field, 3 Comst. (N. Y.) 243; Winter v. 
 Druy, 5 N. Y. 530; Greenfield's Estate, 
 24 Penn. St. 232. 
 
 1. Munger v. Shannon, 61 N. Y. 251; 
 Hall V. City of Buffalo, i Keyes (N. Y.), 
 
 193- 
 
 In Shuttleworth v. Bruce, 7 Robt. (N. 
 Y.) 162, there was an order or draft upon 
 factors to pay "all moneys," the entire 
 proceeds of a single consignment of 
 goods, pointed out and designated as the 
 goods shipped to Havana and consigned 
 to a person named. Held, that this was 
 not only a draft upon a particular fund 
 but also a clear appropriation of the fund, 
 itself for the payment of the draft. " The 
 result of all the cases is," said the court, 
 " that an order or draft drawn upon a 
 particular or specified fund, or which in 
 terms, or by necessary implication, ap- 
 propriates a particular fund to its pay- 
 ment, operates as an equitable assign- 
 ment of such fund, after notice. In such 
 case an acceptance is not necessary, and 
 the drawee, upon notice Of the draft, is 
 bound to keep the fund, as a special de- 
 posit to meet the draft." 
 
 In Lowery v. Steward, 25 N. Y. 239, a 
 draft was drawn by the consignor upon 
 the consignee of cotton, to pay the plain- 
 tiffs five hundred dollars " on account of 
 twenty-four bales cotton shipped to you 
 as per bill of lading, by steamer Colorado, 
 inclosed to you in letter." The bill of 
 lading was accompanied by a letter ad- 
 vising the consignees of the draft. Held, 
 that this was a clear and specific appro- 
 priation of five hundred dollars of the 
 proceeds of the cotton, when sold, to the 
 use of the payees of the draft, payable on 
 presentation of the draft. 
 
 In Parker v. City of Syracuse, 31 N. Y. 
 376. a street contractor drew upon the 
 comptroller of the city a draft to pay 
 $1420 "on plank-road and sidewalk ac- 
 counts," which on the same day was left 
 by the payee with the comptroller. Such 
 order was held to be a valid equitable 
 assignment of the demand which the 
 drawer had against the city, and the 
 delivery of the order to the comptroller 
 
 was held to be sufficient notice of the as- 
 signment to charge the city. 
 
 In Vreeland v. Blunt, 6 Barb. (N. Y.) 
 182, the order was, " Please pay N. W. 
 S. or order $7000 out of the money you 
 received from F. G. for me," and it was 
 accepted by the drawee when in funds. 
 Held, that it was an equitable appropria- 
 tion. 
 
 8. Rosenthal v. The Mastin Bank, 17 
 Blatchf. (C.C.) 318; Bank of Republic v. 
 Millard.io Wallace (U.S.), 152; Chapman 
 V. White, 6 N. Y. 412; Butterworth v. 
 Peck, 5 Bosw. (N. Y.) 343; Lunt v. The 
 Bank of North America, 49 Barb. (N. Y.) 
 221; Parker v. Baxter, 19 Hun (N. Y.), 
 415; Duncan v. Berlin, 60 N. Y. 153; 
 Bullard v. Randall, I Gray (Mass.), 605; 
 Atty.-Gen. &. Life Ins. Co., 71 N. Y. 325; 
 Dykers v. Leather Man. Bank, 11 Paige, 
 (N. Y.) 612; Tyler v. Gould, 48 N. Y., 
 682; jEtna Nat. Bk. v. Fourth Nat. Bk., 
 46 N. Y. 82; Hopkinson v. Forster, ig 
 L. R. Eq. 74. 
 
 In Chapman z;. White, 6 N. Y. 412, the 
 Bank of Gerieva, having a large deposit 
 in the Canal Bank, on which the latter 
 paid interest, sold to the plaintiffs on 
 July 7th a draft for $500 on the Canal 
 Bank, payable on demand to the order 
 of its cashier, which was mailed to him 
 with instructions that it was sent to pay 
 plaintiff's note of $500 payable at that 
 bank on July 12th. The draft was re- 
 ceived by the cashier on the 8th and was 
 neither indorsed by him nor accepted by 
 the bank. On the loth the bank failed, 
 and on the 12th the plaintiff's note was 
 presented and payment refused. Held, 
 that the plaintiff had acquired no right to 
 be paid the amount of his draft from the 
 assets of the bank In preference to its 
 general creditors. " Money deposited 
 generally with a banker," said the court, 
 " becomes the property of the depositary. 
 The right of the depositor Is a chose. In 
 action. It is immaterial whether the 
 implied engagement upon the part of 
 the banker is to pay the sum in gross, 
 or in parcels, as it shall be required by 
 the depositor. In either case the draft 
 or check of the latter would not of itself 
 transfer the debt, or give a lien upon it, 
 to a third person without the assent of 
 the depositary." 
 
 837 
 
"What Constitutes. 
 
 ASSIGNMENTS. 
 
 What Constitutes. 
 
 pay out of a particular fund would seem not to constitute an 
 assignment, for the assignor must not retain any control over the 
 fund or power to collect it ; if he does, it is fatal to the claim of 
 
 the assignee.^ 
 
 Where an insurance company gave its 
 chicle upon a trust company in payment 
 of a loss, but before being presented for 
 payment a receiver of the company was 
 appointed, who withdrew the funds de- 
 posited, and when the checlc was pre- 
 sented for payment it was refused for 
 want of funds; held, that the checlc, 
 not having been drawn on a, particular 
 fund, did not operate as an equitable 
 assignment pro tanto of the deposit. 
 Church, C. J., said: "Banks are debt- 
 ors to their customers for the amount 
 of deposits. A check is a request of the 
 customer to pay the whole or a portion 
 of such indebtedness, to the bearer, or 
 to the order of the payee. Until pre- 
 sented and accepted, it is inchoate; it 
 vests no title or interest, legal or equi- 
 table, in the payee to the fund.' Before 
 acceptance, the drawer may withdraw his 
 deposit; the bank owes no duty to the 
 holder of a check until it is presented for 
 payment. Knowledge that checks have 
 been drawn does not render it obligatory 
 upon the bank to retain the deposit to 
 meet them. These rules are indispens- 
 able to the safe transaction- of commer- 
 cial business." Atty.-Gen. v. Continental 
 Life Ins. Co., 71 N. Y. 325. 
 
 So in Lunt v. Bank of North America, 
 49 Barb. (N. Y.) 221, the rule was stated 
 to be that checks drawn in the ordinary 
 form, not describing any particular fund, 
 or using any words of transfer of the 
 whole or any part of the account standing 
 to the credit of the drawer, are of the 
 same legal effect as inland bills of ex- 
 change, and will not operate as an equita- 
 ble assignment. 
 
 Where the balance due a depositor in a 
 bank was levied on by virtue of an attach- 
 ment against the depositor, held, that 
 the bank was not authorized to deduct 
 any outstanding check given by the de- 
 positor to a third person which had not, 
 prior to the levy, been presented and ac- 
 cepted. Duncan v. Berlin, 15 Sickels 
 (N. Y.), 151. 
 
 In Dykers v. The Leather Manufactur- 
 er's Bank, 11 Paige (N. Y.), 613, a de- 
 positor had given checks to different per- 
 sons for a much larger amount than his 
 funds in the bank, and finding he could 
 not make them all good during banking 
 hours, directed the paying teller not to 
 pay any of, his checks until further orders 
 from him, and finally drew out his funds 
 
 in the bank to make a ratable distribu- 
 tion thereof among the holders of all the 
 checks. Held, that the holder of one of 
 the checks who had demanded payment 
 thereof from the bank after the direction 
 not to pay it and before the fund was 
 drawn out, was not entitled to claim the 
 amount thereof against the bank. 
 
 Some cases, however, hold that as a 
 check on a bank is ordinarily drawn 
 against an actual deposit, and will not be 
 paid unless the amount is standing to the 
 credit of the drawer on the books, it is 
 virtually an order on a particular fund, 
 and confers a specific interest on the 
 drawee. See Bromley v. Brunton, 6 L. 
 R. Eq. 275; Munn v. Burch, 25 111. 35; 
 The Chicago M. Ins. Co. v. Stanford, 28 
 111. 168; Fogarlies v. The State Bank, 12 
 Richardson (S. Car.), 518; Morrison v. 
 Bailey, 5 Ohio St. 13; Hoyt v. Seely, 18 
 Conn. 353; Robinson v. Hawksford, 9 A. 
 & E. (N. S.) 52. 
 
 In Bromley v. Brunton, 6 L. R. Eq. 
 275, a check was given by A to B, and pre- 
 sented without delay. The bankers had 
 suflicient assets of A, but refused payment 
 because they doubted the signature. The 
 next day A died, the check not having 
 been paid. Held, that the check was an 
 appropriation of so much of the donor's 
 money and must be paid out of the funds 
 in the hands of the executors. 
 
 In Kingman w. Perkins, 105 Mass. ui, 
 a depositor in a savings bank gave to a 
 creditor the following check or order: 
 "October 1,1868. The Holyoke Sav- 
 ings Bank will please pay B. F. Perkins, 
 or his order, the amount due me in book 
 No. 312." Afterwards the depositor's 
 funds there were attached, and the bank 
 subsequently accepted the order "except 
 the amount trusteed." Held, that the 
 order was an assignment, which took 
 effect when delivered, of all the depos- 
 itor's funds then held by the bank, and 
 prevailed against the trustee process. 
 
 1. Ex parte Tremont Nail Company, 
 16 N. B. R. 448; Rogers v. Hosack, 18 
 Wend. (N. Y.) 319; Hoyt v. Story, 3 
 Barb. (N. Y.) 262; Christmas v. Russell, 
 14 Wall. (U. S.) 69; Christmas v. Gris- 
 wold, 8 Ohio St. 558; Ford w. Garner, 15 
 Ind. 298; Pearce K. Roberts, 27 Mo. 179. 
 
 In .fijr /«;•;'« Tremont Nail Company, 16 
 N. B. R. 448, a loan was made and a liote 
 for thirty days given therefor, upon an 
 agreement to repay the lenders out of the 
 
 838 
 
What Constitutes. 
 
 ASSIGNMENTS. 
 
 What Constitntes. 
 
 A mere mandate from a principal to his agent to collect money 
 and hand it over to a third party will not amount to an assign- 
 ment, and may be revoked at any time before it is executed.* An 
 ■order to operate as a valid assignment must purport to pass a 
 present interest in the chose to the alleged transferee. If it 
 merely makes the party to whom it is given an agent to transfer 
 
 first money received from a certain per- 
 son named, for whom the borrowers were 
 filling a large order. Hel4, that being a 
 mere promise to pay out of <t particular 
 fund, when received, the promiser retain- 
 ing control over the fund and no notice 
 being given to the person who is to pay, 
 it created no lien or charge upon such 
 fund. 
 
 Where there was a covenant to pay 
 •certain debts out of a designated fund, 
 when the same should be received by the 
 debtor, held, that it did not give the cred- 
 itors a specific lien on the fund, but was 
 a mere personal covenant. The court 
 said: " Here is no assignment, no mort- 
 gage or pledge, no order, or any other 
 specific appropriation of the French 
 funds, but a mere covenant to pay them 
 over on their being obtained by the cove- 
 nantor." Rogers v, Hosack, i8 Wend. 
 <N. Y.) 319- 
 
 It was said by Mr. Justice Swayne, in 
 Christmas v. Russell, 14 Wall. (U. S.) 70: 
 "An agreement to pay out of a particu- 
 lor fund, however clear in its terms, is 
 not an equitable assignment. . . . The 
 -assignor must not retain any control over 
 the fund, any authority to collect it, or 
 any power of revocation. If he does, it 
 is fatal to the claim of the assignee. The 
 transfer must be of such a character that 
 the fund-holder can safely pay, and is 
 compelled to do so though forbidden by 
 the assignor." 
 
 In Bradley's Case, Ridgway, 194, there 
 was a promise to pay a debt out of a sum 
 ■due by a third person, and Lord Hard- 
 wicke refused a prayer for an injunction 
 to stay the money in the debtor's hands, 
 saying that " he would not lay such em- 
 bargoes upon persons to prevent their 
 paying their debts." 
 
 But in Rodick v. Gandell, i De G., M. 
 & G. 763, there is a dictum by Lord 
 Truro to the effect that "an agreement 
 between a debtijr and a creditor that the 
 tlebt owing shall be paid out of a specific 
 fund coming to the debtor," will create a 
 valid equitable charge upon such fund, 
 and this was followed in Riccard v. 
 Prichard, i K. & J. 277, where it was 
 held that an agreement that a certain 
 judgment debt, and interest thereon, 
 ■should be paid to the plaintiff out of any 
 
 moneys which might be recovered, by the 
 defendant in respect of certain claims 
 which he had against third parties, cre- 
 ated a valid equitable charge upon these 
 moneys when recovered. 
 
 Vice-Chancellor Wood said: " I appre- 
 hend that if A tells B that he expects that 
 ;^io,ooo are coming to him by a given 
 day, and agrees out of that to pay B 
 ^5,000, that is a good agreement to con- 
 stitute a charge upon the fund. That is 
 substantially the agreement in this case. 
 In Rodick v. Gandell, Lord Truro col- 
 lects the result of numerous authorities, 
 summing them up by saying that two 
 things were established: 'The extent of 
 the principle to be deduced,' he says, 
 'is that an agreement between a debtor 
 and a creditor that the debt owing shall 
 be paid out of a specific fund coming to 
 the debtor, or an order given by a debtor 
 to his creditor upon a person owing 
 money or holding funds belonging to the 
 giver of the order, directing such person 
 to pay such funds to the creditor, will 
 create a valid equitable charge upon such 
 fund; in other words, will operate as an 
 equitable assignment of the debts or fund 
 to which the order refers.' This case is 
 brought exactly within the foriner of 
 those rules." 
 
 The weight of authority in this coun- 
 try, however, appears to be decidedly the 
 other way. 
 
 1. Where a railway contractor, being 
 indebted to his bankers, wrote to the 
 solicitors of the company authorizing 
 them to receive the money due to him 
 from the company and pay it over to his 
 bankers, and the solicitors then wrote to 
 the bankers promising to pay them the 
 money upon receiving it, held, that this 
 did not operate as an equitable assign- 
 ment. Rodick V. Gandell, i De G., M. 
 & G. 763. See also Morrell v. Wooten, 
 16 Beav. 197. 
 
 Bankruptcy or any disposition of the 
 property inconsistent with the execution 
 of the order will revoke it. Ex parte 
 Hall, 10 Ch. D. 615; Scott v. Porcher, 3 
 Men 652, 664. 
 
 A promise to pay money when the 
 debtor receives a debt due to him from a 
 third person, does not constitute an 
 equitable assignment so as to charge the 
 
 839 
 
Kotice of Assignment. 
 
 ASSIGNMENTS. 
 
 Notice of Assignment:. 
 
 i\ie chose on behalf of the principal, until the transfer is actualljr 
 made it confers no title.^ 
 
 4. Notice of Assignment. — To complete the assignment of a demand" 
 or chose in action as against the debtor or custodian of the fund 
 he must be informed that the obligation has been transferred ; until 
 informed of the assignment, he is entitled to regard the assignor as. 
 the owner, and may accept a release from him or purchase a debt 
 which he owes and use it as a set-off.* But when notified of the- 
 transfer, the debtor can thenceforth do no act to prejudice the 
 title of the assignee.* 
 
 If the assignee does not perfect his title by giving notice, a sub-^ 
 sequent bond-fide purchaser for value from the assignor of the same 
 obligation, giving notice of his assignment, will thereby acquire 
 priority. Between different assignees, the one who first gives no^ 
 tice to the debtor will, as a general rule, have the prior right.* 
 
 debt in the hands of such third person. 
 Field V. Megaw, 4 L. R. (C. P.) 660; 
 Malcolm v. Scott, 3 Hare, 39; Jones v, 
 Stafkey, 16 Jur. 510. 
 
 1. Hunt V. Rousmanier, 8 Wheat. (U. 
 S.) 174; Beers v. Spooner, 9 Leigh (Va.), 
 153; Tieraan v. Jackson, 5 Peters (U. S.), 
 580; Beans v. Bullitt, 57 Pa. St. 221; 
 Watson V. Bagaley, 12 Pa. St. 164; Ins. 
 Co. of Pa. V. Phoenix Ins. Co., 71 Pa. 
 St. 34; Wright V. Ellison, I Wall. (U. 
 S.) 22; Bispham's Eq. 221. 
 
 The mere delivery of the written evi- 
 dence of the debt, with intent to transfer 
 it, is, in general, a valid assignment. 
 Runyan v. Mersereau, 11 Johns. 534; 
 Mowry V. Todd, 12 Mass. 281; Clark v. 
 Rogers, 2 Me. 147; Tutt v. Couzins, 50 
 Mo. 152; Noyes v. Brown, .33 Vt. 431. 
 
 2. Bishop V. Garcia, 14 Abb. Pr. (N. 
 S.) 69 ; Campbell v. Day, 16 Vt. 358; 
 Loomis V. Loomis, 26 Vt. 201; Noble v. 
 Thompson Oil Co. 79 Pa. St. 354; Hee- 
 mans v. Ellsworth, 64 N. Y. 159; Nor- 
 rish V. Marshall, 5 Madd. 475; Stocks v. 
 Dobson, 4 DeG. Mac. & G. 11. 
 
 A debtor who in good faith pays a debt 
 before notice of assignment thereof, is 
 not liable to pay it a second time to his 
 creditor's assignee. Dodd v. Brott, i 
 Minn. 270. 
 
 In Louden v. Tiffany, 5 W. & S. (Pa.) 
 367, cross-demands were purchased by 
 the debtor after the assignment, but be- 
 fore notice thereof. Held, that the de- 
 mands so acquired could be set off, the 
 court declaring it to be the duty of the as- 
 signee " to inquire of the defendant 
 whether he had any defence, and to give 
 him notice of the assignment." 
 
 So, in Rider w. Johnson, 20 Pa. St. 190, 
 the niaker of a note under seal was held 
 to be entitled to set-off in a suit against 
 him by the equitable assignee, a claim ac- 
 
 quired against the payee of the note be-, 
 fore notice of its assignmen.t. 
 
 3. Brashear v. West, 7 Peters (U. S."), 
 608; Laughlin v. Fairbanks, 8 Mo. 367;; 
 Cummings v. FuUam, 13 Vt. 434; Stew- 
 art V. Kirkland, 19 Ala. 162. 
 
 A release given subsequently to the as- 
 signment is fraudulent on the part of the 
 assignor and will not avail the debtor if" 
 accepted after notice of the assignment. 
 Phillips V. Claggett, 11 M. & W. 84 ;• 
 Reservoir Co. v. Chase, 14 Conn. 123^ 
 Bartlett v. Pearson, 29 Me. g; Webb v. 
 Steele, 13 N. H. 230; Blake v. Buchan- 
 an, 22 Vt. 548. 
 
 Nor can the debtor set-off any demand 
 against the assignor which accrues tO' 
 him after notice of the assignment. 
 Goodwin v. Cunningham, 12 Mass, 193;. 
 Conant v. The Bank, i Ohio St. 298;. 
 Phillips V. The Bank, 18 Pa. St. 394. 
 
 4. Dearie v. Hall, 3 Russ. i; Lover- 
 idge V. Cooper, 3 Russ. 90; Barron v.. 
 Porter, 44 Vt. 587; Spain v. Hamilton, I 
 Wall. (U. S.) 604, 623. 
 
 The question which of the successive 
 assignees of the same obligation is en- 
 titled to priority, depends not upon the 
 date of the respective transfers, but upon 
 when they were communicated to the 
 debtor. Spain v. Hamilton, i Wall. (U. 
 S.) 623; Campbell v. Day, 16 Vt. 558; 
 Barney v. Douglass, 19 Vt. 98; Loomis 
 V. Loomis, 26 Vt. 201; Hobson v. Ste- 
 venson, I Tenn. Ch. 203; McWilliams v. 
 Webb, 32 Iowa, 507 ; MuTdoch v. Finney, 
 2 Mo. 138; Woodbridge v. Perkins, 3 
 Day (Conn.), 364; Bishop v. Halcomb, 10 
 Conn. 444. 
 
 In Dearie v. Hall, Sir Thomas Plumer, 
 M. R., said: " In Ryall v.. Rowles (i Ves. 
 348), the judges held that, in the case of 
 a chose in action, you must do everything 
 towards having possession which the sub[« 
 
 840 
 
Notice of ABSignment. 
 
 ASSIGNMENTS. 
 
 Notice of AsBignment, 
 
 But as against one claiming under the assignor as a creditor or 
 mere volunteer, the failure to give notice of an assignment is im- 
 material, for the right of a creditor does not rise higher than that 
 of the debtor and is subject to all equities that could have been 
 enforced against him.^ 
 
 ject admits; you must do that which is 
 tantamount to obtaining possession by 
 placing every person who has an equita- 
 ble or legal interest in the matter under 
 an obligation to treat it as your property. 
 For this purpose you must give notice to 
 the legal holder of the fund; in the case 
 of a debt, for instance, notice to the 
 debtor is, for many purposes, tantamount 
 to possession. If you omit to give that 
 notice, you are guilty of the same degree 
 and species of neglect as he who leaves a 
 personal chattel, to which he has acquired 
 a title, in the actual possession and un- 
 der the absolute control of another per- 
 son." 
 
 Where a bond, bill, note, or like evi- 
 dence of debt is assigned and is trans- 
 ferred by actual manual delivery to the 
 assignee, no notice to the debtor of the 
 assignment is necessary. Savings In- 
 stitute V. Fellows, 6 Caldwell (Tenn.),467. 
 
 Where notices of assignments are si- 
 multaneous, the assignments will take pri- 
 ority according to their dates. Calisher 
 V. Forbes, 7 L. R. Ch. App. 109. 
 
 A subsequent assignee giving notice of 
 the assignment will not gain priority 
 over a prior assignee who has not given 
 notice, if at the time of giving such no- 
 tice he has notice, express or implied, of 
 the former assignment. Spencer v. 
 Clarke, g Ch. D. 137. 
 
 Although notice should be given as 
 early as possible, it is sufficient if it be 
 given before another notice. Menx v. 
 Bell, I Hare, 85; Stocks v. Dobson, 4 
 DeG. M. & G. 17. 
 
 1. Justice V. Wynne, 12 Ir. Ch. R. 289; 
 Scott V. Lord Hastings, 4 K. & J. 633; 
 Beavan v. Lord Oxford, 6 DeG. Mac. & 
 G. 492; Eyre v. McDowell. 9 H. L. Cas. 
 618, 652; The People v. Elmore, 35 Cal. 
 653; Kortright v. Buffalo, 20 Wend. (N. 
 y.) gi; McNeil v. The Bank, 46 N. Y. 
 328; Grymes v. Hone, 4g N. Y. 17. 22; 
 The Mt. Holly Co. v. Ferree, 2 C. E. 
 Green (N. J.), 117 ; United States v. 
 Vaughan, 3 Bin. (Pa.) 394. 
 
 But it was held in Clodfelter v. Cox, I 
 Sneed (Tenn.), that an assignment of a, 
 judgment was incomplete and invalid, as 
 against a subsequent attaching creditor, 
 unless notice of the assignment were 
 given to the judgment debtor. McKin- 
 ney. J., said: "To perfect the assignment 
 not merely as against the debtor, but also 
 
 as against creditors and subsequent bona- 
 fide purchasers, notice must be given." 
 See also Van Buskirk i;. Ins. Co. 14 Conn. 
 145. This doctrine, however, is not in 
 accord with the weight of authority. 
 
 In Pellman v. Hart, i Pa. St. 266, the 
 court say: " Immediately on the assign- 
 ment, as between the assignor who is the 
 original promisor to the assignee, and 
 the latter, the equitable title vests in the ' 
 assignee, which, of course, cannot be 
 taken to pay the debt of the assignor. 
 ... A general creditor, unless a pur- 
 chaser without notice, is in no better sit- 
 uation than the debtor, and cannot sell a 
 greater interest than the debtor has." It 
 was accordingly held that where a note 
 has been assigned by a debtor bona fide 
 in payment of a debt, before the service 
 of an execution attachment, although the 
 garnishee had no notice of such assign- 
 ment previous to the service of the at- 
 tachment, the assignee is entitled to the 
 money due by the garnishee, and not the 
 attaching creditor. 
 
 A chose in action equitably assigned is 
 not subject to attachment as the property 
 of the assignor. Canal Co. v. Ins. Co., 
 2 Phila. Rep. 354; Noble v. Thompson 
 Oil Co. 79 Pa. St. 354; Wakefield v. Mar- 
 vin, 3 Mass. 558; Thayer i». Daniels, 113 
 Mass. I2g; Dix v. Cobb, 4 Mass. 512; 
 Van Buskirk v. Warren, 24 Barb. (N. Y.) 
 457; Stevens v. Stevens, i Ash. (Pa.) 
 igo. 
 
 In Walters v. Washington Ins. Co., i 
 Iowa, 404, it was held that where the as- 
 signee of an unnegotiable instrument fails 
 to give notice of the assignment to the 
 debtor until judgment of garnishment has 
 been rendered against him for the debt, 
 as a debtor of the assignor, the. creditors 
 by garnishment have the prior claim to 
 the money in the garnishee's bands, and 
 his liability to the assignee is destroyed. 
 
 The court say: "The assignee of the 
 debt should give notice to the garnishee 
 of the assignment in time to enable him 
 to show such assignment in his answer, 
 or, at least, before judgment against 
 him." See also Seevers v. Wood, 12 
 Iowa, 300; Wigwall v. Union Coal Co., 
 37 Iowa, 130. 
 
 So an attachment by an assignor's 
 creditor of the debt in the debtor's 
 hands will not entitle him to a priority of 
 right if the debtor receives notice of the 
 
 841 
 
ITotice of Assignment, 
 
 ASSIGNMENTS. 
 
 Effect of Assignment, 
 
 And notice to the assignor of non-payment of the. debt is not 
 obligatory upon the assignee.* 
 
 Notice to one of several trustees or joint debtors is, in general, 
 notice to all,** and, although it is obviously better to give a written 
 notice, parol notice is sufficient.^ 
 
 5. Effect of Assignment. — The assignee of a chose in action, ex- 
 cept in the case of negotiable paper, takes it subject to every de- 
 fence that would be valid between the original parties.* But the 
 defence to be valid, must be one subsisting at the time the debtor 
 receives notice of the assignment ; for the assignment with notice 
 
 assignment pendente lite and in time to 
 avail himself of it in disctiarge of the 
 suit against him. Smith v. Blatchford, 2 
 Ind. 184; s. c, 52 Am. Dec. 504. 
 
 Bank stock which has been sold bona 
 Jide and the certificate delivered to the 
 purchaser, with a power of attorney to 
 transfer it on the books of the bank, is 
 not liable to attachment as the property 
 of the vendor, although still standing. in 
 his name on the books of the bank at the 
 time of the attachment. United States v. 
 Vaughan, 3 Bin. (Pa.) 394; Com. v. Wat- 
 mough, 6 Whart. (Pa.) 117, 138. 
 
 In Mount Holly Co. v. Ferree;, i C. E. 
 Green (N. J.), 117, the chancellor said: 
 "The certificate of stock, accompanied 
 by the power of attorney authorizing the 
 transfer of the stock to any person, is 
 /nOTa-/aaV evidence of equitable owner- 
 ship in the holder, and renders the stock 
 transferable by the delivery of the cer- 
 tificate ; and when the party in whose 
 hands the certificate is found is shown to 
 be a holder for value and without notice 
 of any intervening equity, his title as 
 such owner cannot be impeached." 
 
 But, on the other hand, it was held in 
 Pinkerton v. Railroad Co., 42 N. H. 424, 
 that the delivery of stock is not complete 
 until it is transferred on the stock record 
 or a notice sent to the office for that pur- 
 pose. 
 
 So, it is held in like manner in Con- 
 necticut that the failure to complete the 
 title to stock by a formal transfer is a 
 badge of fraud, which renders the sale 
 invalid as against the creditors of the 
 vendor. Shipman v. The jEtna Ins. Co., 
 29 Conn. 245: Culb v. Ives, 31 Conn. 251. 
 
 As between two purchasers of stock 
 for value, the better opinion would seem 
 to be that the purchaser who perfects 
 his right by obtaining a transfer on the 
 books of a corporation will be preferred 
 to a prior purchaser who has been less 
 diligent. See New Haven, N. Y. R. R. 
 V. Schuyler, 34 N. Y. 30; The People v. 
 Ellison, 35 Cal. 653; Bayard v. The 
 Bank, 52 Penn. St. 232, 235. See also. 
 
 Fisher v. The Bank, 5 Gray (Mass.), 373; 
 Blanchard v. The Gas Light Co., 12 
 Gray (Mass.), 213; Sabin v. The Bank 
 of Woodstock, 21 Vt. 353. 
 
 1. Glyn V. Hood, i DeG. F. & J. 334. 
 
 2. Smith V. Smith, 2 Cr. & M. 231; 
 Nolan V. O'Brien, 7 L. R. Ir. 180; Ex 
 parte Rogers, 8 De G. M. & G. 271. 
 
 3. Re Tichener, 35 Beav. 317; Smith 
 V. Smith, 2 Cr. & M. 231; Barron v. 
 Porter, 44 Vt. 587; Phillips v. Lewistown 
 Bank, 18 Penn. St. 394. ■ 
 
 The notice need not be formal or ex- 
 press. It is enough that the debtor has 
 such knowledge or information as will 
 put him on his guard and enable him to 
 warn subsequent purchasers. Dale v. 
 Kempton, 46 Vt. 76. 
 
 In Barron v. Porter, 44 Vt. 58.7, the 
 court say: " It is not necessary to the 
 validity of the notice that the assignee 
 should personally give the notice or that 
 the agent of the assignee for giving no- 
 tice directly employed by him for that 
 purpose should himself personally give 
 the notice; if given by his procurement, it 
 is sufficient." 
 
 In Phillips V. Lewistown Bank, 18 
 Penn. St. 394, it was held that the notice 
 need not be in writing and "it was imma- 
 terial in what manner the knowledge of 
 the transfer was acquired, so that it ex- 
 isted at the time of the purchase" of the 
 notes offered to be set off. 
 
 4. Bebee v. The Bank of N. Y. I 
 Johns. (N. Y.) 529; Kamena v. Huelbig, 
 8 C. E. Green (N. J.), 78; Martin z/. Rich- 
 ardson, 68 North Carolina, 225 ; Board- 
 man V. Payne, 29 Iowa, 339; Jeffries v, 
 Evans, 6 B. Mon. (Ky.) 119; Barney u. 
 Grover, 28 Vermont, 391; Willis v. 
 Twambly, 13 Mass. 204; Bush v. Lathrop, 
 22 N. Y. 535; Wheeler v. Hughes, i 
 Dall, (Pa.) 23; Weaver v. McCorkle, 14 
 S. & R. (Pa.) 304; Keagy v. The Com- 
 monwealth, 43 Pa. St. 70; Faull v. Tins- 
 man, 36 Pa. St. 108; Andrews v. McCoy, 
 8 Alabama. 920; Kleman v. Frisbie, 63 
 Illinois, 482; Timms v. Shannon. 19 
 Md. 296;. Marshall v. Cooper, 43 Md. 61. 
 
 842 
 
Effect of AsBignment. 
 
 ASSIGNMENTS. 
 
 Effect of Assignment. 
 
 imposes upon the debtor an equitable and moral obligation to pay 
 the money to the assignee.^ 
 
 And if the debtor actively misleads the assignee as to the ex- 
 istence of any defence or set-off, or remains silent when it is his 
 duty to speak, he may be estopped by such conduct from setting 
 up such defence against the assignee.* 
 
 The assignee cannot be affected by secret trusts or acts uncon- 
 nected with the subject of the contract.^ 
 
 1. Crocker v. Whitney, lo Mass. 316; 
 Mowry v. Todd, 12 Mass. 281; Fay v. 
 Jones, 18 Barb. (N. Y.) 340; Snaall v. 
 Browder, 11 B. Mon. (Ky.) 212; Miller 
 V. Kreiter, 76 Pa. St. 78. 
 
 In Northampton Bank v. Balliet, 8 W. 
 & S. (Pa.) 311, the court say: " The im- 
 portant period to determine the rights of 
 the assignee and the defendants is not 
 the time of the assignment, but the time 
 the defendants had notice of it, and this 
 principle applies as well in the case of 
 set-off as payment. The time the con- 
 tract begins between the assignee and 
 the obligor is when the latter has notice 
 of the assignment. It is the duty of the 
 assignee or the obligee to inform the 
 obligor that he has parted with the bond, 
 and if this is omitted they are in default, 
 and not the obligor, who, until he is in- 
 formed otherwise, has a right to suppose 
 that the bond is still the property of the 
 obligee, and to act and contract with the 
 obligee or others under that reasonable 
 supposition." 
 
 2 In re General Estates Company, L. 
 R. 3 Ch. 758; Kemp v. McPherson, 7 H. 
 &J. (Md.) 320; Jones z/. Hardesty, 10G.& 
 Johns. (Md.)404; Decker z/. Eisenhauer, i 
 Penna. R. 476; Sargeant v. Sargeant, 18 
 Verm. 371; Foot v. Ketchum, 15 Verm. 
 258; Bank v. Jerome, 18 Conn. 443; 
 Watson's Exrs. v. McLaren, ig Wend. 
 (N. Y.) 557; Buckner v. Smith, i Wash. 
 296; McLellan v. Walker, 26 Maine, 114; 
 King V. Fowler, 16 Mass. 397. 
 
 In McMullen v. Wenner, 16 S. & R. 
 (Pa.) 18, the assignee was induced to pur- 
 chase a bond under the representations 
 made by the obligor and communicated 
 to the purchaser that he had no defence 
 and was willing that the bond should be 
 sold. Held, that the obligor could not 
 set up an equity of which he might have 
 availed himself against the obligee. 
 "Although /n>«o /««>," say the court, 
 " the obligor may make every defence 
 against the assignee, which at the time of 
 the assignment, or notice of it, he could 
 have made against the obligee, yet he 
 may by his own conduct, preclude him- 
 self from the benefit of that right. Thus 
 it has been held that if the assignee calls 
 
 on the obligor and informs him he is 
 about to take an assignment of his bond, 
 and the obligor acknowledges that it is 
 due, without any allegation of defence, he 
 shall not be permitted to take defence 
 against the assignee, and this whether his 
 silence proceeds from ignorance or de- 
 sign. It would be most inequitable and 
 unjust that he should; because if any loss 
 afterwards occur it arises from the negli- 
 gence or folly of the obligor, and not the 
 default of the assignee, who has taken 
 every pains to inform himself of the real 
 situation of the parties." 
 
 3. Davis V. Barr, 9 S. & R. (Pa.) 137; 
 Beckley v. Eckert, 3 Penn. St. 292; Mott 
 V. Clark, 9 Penn. .■• t. 399; Taylor v. Gitt, 
 10 Penn. St. 428; Corsen v. Craig, i 
 Wash. C. C. 424. 
 
 Upon the question whether the assignee 
 of a chose in action will take it not only 
 subject to the equities between the origi- 
 nal parties, but also to equities residing 
 in third persons, the decisions are not in 
 harmony. It is held, on the one hand, 
 that the assignee is subject only to the 
 equities of the original debtor and not to 
 latent equities of third persons. Taylor 
 V. Gitt, lo Penn. St. 428; MuUison's Est. 
 68 Penn. St. 212; Metzgar v. Metzgar, i 
 Rawle (Pa.), 227; Livingston v. Dean, 2 
 Johns. Ch. 479; Moore v. Holcombe, 3 
 Leigh (Va.), 597. 
 
 In Mott V. Clark, g Penn. St. 399, the 
 court say: " The assignee can always go 
 to the debtor and ascertain what claims 
 he may have against the bond or other 
 chose in action, which he is about pur- 
 chasing from the obligee; but he may not 
 be able with the utmost diligence, to as- 
 certain the latent equity of some third 
 person against the obligee. He has not 
 any object to which he can direct his in- 
 quiries, and for this reason the claim of 
 the assignee, without notice, of a chose in 
 action, in the late case of Redfearn v. 
 Ferrier, 1 Dow. 50, was preferred to that 
 of a party setting up a secret equity 
 against the assignor. Lord Eldon ob- 
 served, in that case, that if it were not 
 to be so, no assignment could ever be 
 taken with safety." 
 
 But, on the other hand, it is held that 
 
 843 
 
Effect of Assignment. 
 
 ASSIGNMENTS. 
 
 Effect of Assignment,- 
 
 By the assignment of a demand the assignee becomes en-^ 
 titled to every remedy, lien or security that could have been 
 used or made available by the assignor as a means of indem- 
 nity or payment. 1 Thus the asignee of a debt secured by a- 
 mortgage will be held entitled, in equity, to the benefit of the 
 mortgage.* 
 
 Another effect of the assignment is that the assignee thereby 
 acquires the right to use the name of the assignor in an action at 
 law to recover the demand assigned, and courts of contimon law 
 now entertain such an action, which must be brought in the name 
 of the original assignor to the use of the assignee. ^ And in many 
 of the States of the Union, the assignee of a chose in action may 
 sue in his own name.* 
 
 As the remedy of the assignee is generally complete at law by 
 a suit in the name of the- assignor, a court of equity will not, as a 
 general rule, entertain a bill filed by the assignee simply for the 
 purpose of recovering a debt. It is only when his legal remedy is 
 in some manner obstructed or rendered insufficient that a court 
 of equity will interpose. In cases in which the assignee may pro- 
 ceed against the debtor in equity, he can file a bill in his own 
 
 name.' 
 
 the assignee takes the exact position of ston, lo Kan. 131; Fletcher v. Piatt, 7 
 his assienor. and that the eauities exist- Blackf. (Ind.^ 'i22. 
 
 his assignor, and that the equities exist 
 ing between the assignor and assignee of 
 a chose in action, attend the title trans- 
 ferred to a subsequent assignee for value 
 and without notice. See Bush v. Lathrop, 
 22 N. Y. 535, and cases cited; Schafer !<. 
 Reilly, 50 N. Y. 67. 
 
 1. Mehaffeyw. Share, 2 P. & W. (Pa.) 
 296; Donley v. Hayes, 17 S. & R. (Pa.) 
 400; Foster v.. Fox, 4 W. & S. (Pa.) 92; 
 Philips V. The Bank, 18 Penn. St. 394; 
 Wilson V. Bowden, 26 Ark. 451; Coffing 
 V. Taylor, 16 111. 457. 472; Perry t/. Rob- 
 erts, 30 Ind. 244; Craig v. Parkis, 40 
 N. Y. 181; Hunt V. Wilson, 38 Cal. 263. 
 
 2. Lindsay v. Bates, 42 Miss. 397; 
 Cathcart's App., 13 Penn. St 416; Ryan 
 V. Dunlap, 17 111. 40; Burdett v. Clay, 8 
 B. Mon. (Ky.) 287; Bolen v. Crosby, 49 
 N. Y. 183. 
 
 3. Bispham's Equity, 226; Skinner v. 
 Somes, 14 Mass. 107; Jessel v. Ins. Co., 
 3 Hill (N. Y.), 88. 
 
 4. Long!'. Heinrich, 46 Mo. 603; Cook 
 V. Bell, 18 Mich. 387; Smith v. Chicago 
 R. R., 23 Wis. 267; Hook v. Eagle Bank, 
 30 N. Y. 83; Carpenter v. Johnson, i 
 Nev. 331; Mills V. Murry, i Neb. 327; 
 Allen V. Miller, 11 Ohio, 374; McDonald 
 V. Kneeland, 5 Minn. 352; Russell v. 
 Petree, 10 B. Mon. (Ky.) 184; White v. 
 Tucker, 9 Iowa, 100; Stewart v. Balder- 
 
 Blackf. (Ind.) 522. 
 
 But the equities in defence are not 
 thereby excluded, and the rights of the 
 parties are not altered. Purple v. The 
 Railroad, 4 Duer (N. Y.), 74; Myers v. 
 Davis, 22 N. Y. 489; Cox v. Sprigg, 6 
 Md. 274. 
 
 5. Hammond v. Messenger, 9 Sim. 327, 
 332; Carter v. Ins. Co.. i Johns. Ch. 
 (N. Y.) 463; Adair v. Winchester, 7 Gill 
 «& Johns. (Md.) 114; Walker v. Brooks. 
 125 Mass. 241 ; Chicago R. R. v. Nichols, 
 57 111. 466; I Parsons on Contracts, 224, 
 note (d). 
 
 In Ontario Bank v. Mumford, 2 Barb. 
 Ch. (N. Y.) 596, Chancellor Walworth 
 says: "As a general rule this court will 
 not entertain a suit brought by the as- 
 signee of a debt or of a chose in action 
 which is a mere legal demand; but will 
 leave him to his remedy at law by a suit 
 in the name of the assignor. When, • 
 however, special circumstances render it 
 necessary for the assignee to come into a 
 court of equity, for relief, to prevent a 
 failure of justice, he will be allowed to 
 bring a suit here upon a mere legal de- 
 mand." 
 
 Authorities for Assignments. — Bisp- 
 ham's Equity, Story's Equity Jur., Par- 
 sons on Contracts, 2 Lead. Cas. Eq. 
 Notes to Ryall v. Rowles. 
 
 844 
 
ASSIGNMENTS FOR BENEFIT OF CREDITORS. 
 
 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. * (See 
 -also Assignments ; Attachment ; Contracts ; Corpora- 
 tions; Debtor AND Creditor; Deed; Fraudulent Convey- 
 ances ; Insolvency ; Lien ; Mortgage ; Partnership ; Prac- 
 tice ; Trusts ; Trustees.) 
 
 1. Definition, 845. 
 
 2. Who may Assign, 846. 
 
 3. Who may be Assignee, 850. 
 
 4. What Passes by the Assignment, ?,^2. 
 5. Formal Requisites of an Assign- 
 ment, 855. 
 
 •6. Preferences, 860. 
 7. Reservations and Stipulations, 863. 
 
 8. Other Features of the Deed, 864. 
 _ 9. Fraudulent Assignments, 869. 
 
 10. Effect, 871. 
 
 11. Rights. Duties, Powers, and Re- 
 
 sponsibilities of the Assignee, 
 
 874- 
 
 12. Rights and Powers of Creditors. 
 
 878. 
 
 1. Definition. — An assignment for the benefit of creditors is a 
 •voluntary '■* transfer * by a debtor of all,* or a part ^ of his prop- 
 
 1. While the origin of this species of 
 assignment is to be found in the old 
 
 ■common law, its extensive use in this 
 ■ country, owing to the frequent non-ex- 
 istence of a bankrupt law, has led not 
 only to new applications of the original 
 •principles, but also to many important 
 changes in the statute law. The follow- 
 ing article; therefore, attempts only to 
 show the main features of the law on this 
 point in this country to-day, and not the 
 rise and development of this law. Refer- 
 ence to ancient and English authorities 
 is therefore omitted. 
 
 2. Such assignments "come into being 
 not by operation of law, or by force of any 
 
 -previous proceedings either by or against 
 the debtor. They are purely the voluntary 
 -act of the debtor. They are contracts, and 
 rest, like all contracts, upon the consent 
 ■of parties. It is true, that the manner 
 •of executing such instruments is now 
 regulated by statute, and to a certain ex- 
 tent a method for administering the trust 
 -created by them, apart from the ordinary 
 processes of a court of equity, has been 
 • created; but the right to make an assign- 
 ment for creditors is derived in no sense 
 from the statute, nor does the statute re- 
 strict or limit the operation or efifect of 
 such instruments when niade." Bishop 
 on Insolvent Debtors, § 104. The last 
 sentence must be understood with the 
 proviso that such instruments must be 
 validly made in accordance with the 
 statute. 
 
 The statute "recognizes the existence 
 of the power in the citizen to make an 
 assignment of his property to trustees for 
 the benefit of creditors, and does no more 
 than prescribe the mode in which the 
 power shall be used, and furnish some 
 safeguards against abuse." Thrasher w. 
 .Bentley, i Abb. N.C.(N. Y.)39, 44. See 
 
 845 
 
 also People v. Chalmers, i Hun (N. Y.), 
 683; s. c, on appeal, 60 N. Y. 154; Lud- 
 ington's Petition, 5 Abb. N. C. (N. Y.) 
 307. 
 
 3. The title to the property must be 
 actually transferred, so as 10 divest the 
 debtor of all control over it. A mere 
 power of attorney to collect debts, and 
 apply the proceeds to the payment of the 
 claims of creditors, is not an assignment. 
 Henderson's App., 31 Pa. 502; Griffin v. 
 Rogers, 38 Pa. 382; Beans v. Bullitt, 57 
 Pa. 221; Banning v. Sibley, 3 Minn. 
 389. See past, 5, p. 855. 
 
 4. General Assignments. — These are 
 effected by a transfer of all the property. 
 U. S. V. Clark, i Paine (U. S.), 629, 640; 
 Mussey v. Noyes, 26 Vt. 462, 473; Bishop 
 V. Hart, 28 Vt. 71. 
 
 This is the most usual species of as- 
 signment, and it has even been held to be 
 necessarily implied in the term "' volun- 
 tary assignment." U. S. </. Mott, i 
 Paine (U. S.), 188, 195. 
 
 An assignment stipulating for the re- 
 lease of the debtor must be general. 
 Seaving v. Brinkerhoff, 5 Johns. Ch. (N. 
 Y.) 329; Skipwith v. Cunningham, 8 
 Leigh (Va.), 271; Green i: Trieber, 3 
 Md. 11; Sangston v. Gaither, 3 Md. 40; 
 Johns V. Bolton, 12 Pa. 339; Boker v. 
 Crookshank, i Phila. (Pa.) 193. ■ So 
 sometimes when preferences are given. 
 
 1 Kentucky Rev. Sts. p. 553. 
 
 An assignment which is general on its 
 face must be so in point of fact. Price v. 
 Haynes, 37 Mich. 487; Stanford v. Wil- 
 liston, go N. Y. 582; Pierce v. Jackson, 
 
 2 R. I. 35. 
 
 5. Partial AsBignments. — A transfer of 
 a portion of the debtor's property is a 
 partial assignment on its face. Mussey 
 V. Noyes, 26 Vt. 462. 
 
 " An assignment of partnership effects 
 
Definition, 
 
 ASSIGNMENTS FOR 
 
 Who may Assign. 
 
 erty, to an assignee or assignees,^ in trust to apply the same, or 
 the proceeds thereof, to the payment of some or all of the as- 
 signor's debts, and to return the surplus, if any, to hiip.* 
 
 2. Who may Assign. — Any person * of sound mind, not under 
 a legal disability,* may make an assignment for the benefit of 
 creditors. 
 
 A Corporation can make such an assignment^ unless it is 
 
 is a partial one whenever the debtor has 
 separate property." Thomas v. jBnks, 
 5 Raw. -(Pa.) 221. 
 
 So an assignment, general in form, but 
 with an express exception of a part of 
 the debtor's property, is partial. Ingra- 
 ham V. Grigg, 12 Sm. & M. (Miss.) 22. 
 See post, 4, 
 
 Such assignments are comparatively 
 rare in practice, and usually cannot con- 
 tain the stipulations and preferences 
 sometime admissible in general assign- 
 ments. These restrictions will be noted 
 in their proper places. 
 
 As to matters of practice, e.g. , the filing 
 of an inventory by the assignee, etc., 
 there is no diflference between general 
 and partial assignments in Pennsylvania. 
 Reigart's App. 4 Pa. 477. 
 
 In some States no partial assignments 
 are, allowed, e.g.: — Connecticut, Gen. 
 Sts.' (Rev. 1875) p. 378; Indiana, i Sts. 
 (Rev. 1876) p. 142. But a trifling and 
 unintentional omission does not invali- 
 date. Krug V. McGilliard, 76 Ind. 28; 
 Maine, Rev. Sts. (Ed 1871) p. 543, § 1. 
 But a partnership assignment need not 
 include private property of partners. 
 Simmons v. Curtis, 41 Me. 373. 
 
 1. The assignee is also a trustee, but 
 as the former term is the more dis- 
 tinctive, it will be exclusively used here. 
 
 Special Assignments, or Assignments 
 Direct to Creditors. — These are to be dis- 
 tinguished from assignments for the 
 benefit of creditors, which are, strictly 
 speaking, always made through the in- 
 tervention of an assignee trustee. Special 
 assignments take the form or legal effect 
 either of mortgages (see Leitch v. 
 Hollister, 4 N.Y. 411) or absolute convey- 
 ances, and are therefore not considered 
 in this article. 
 
 An absolute, unconditional sale and 
 conveyance of his property by a debtor, 
 free from all reservation, in payment and 
 satisfaction of antecedent debts, cannot 
 be declared a general assignment, enuring 
 to the benefit of all his creditors equally, 
 although it may embrace all his property, 
 and he be insolvent. Otis v. Maguire, 76 
 Ala. 293. 
 
 "An assignment involves the transfer 
 by a debtor of property by mortgage, 
 
 846 
 
 deed of trust, or other conveyance in- 
 tended as a security for, and not in pay- 
 ment or satisfaction of a debt due his 
 creditor. It therefore implies the idea of 
 a trust, under the operation of which 
 there is the possibility of a reversion to 
 the debtor of some interest in the pro- 
 ceeds of sale of the property assigned. 
 When the debts intended to be secured 
 are paid, the surplus, after deducting 
 lawful expenses, goes back to the debtor. 
 Such an assignment does not, ipso facto, 
 like a sale, satisfy the claims of the credi- 
 tors to any extent, but only provides a 
 method for raising the means with 
 which to pay them." Otis v. Maguire, 
 76 Ala. 295. See also Bebb v. Pres- 
 ton, I Iowa, 460; Blank v. German, 5 
 W. & S. (Pa.) 36; Shirley v. Teal, 67 Ala. 
 449; Com. Bank v. Brewer, 71 Ala. 574; 
 Banner v. Brewer, 69 Ala. 191; Dunham 
 V. Whitehead, 21 N Y. 131; Hendrick- 
 son V. Robinson, 2 John. Ch. (N. Y.) 
 283; Tompkins v. Wheeler, 16 Pet. 106; 
 Smith V. Woodruff, i Hilt. (N. Y.) 462. 
 
 2. For the definition in general, see 
 Burrill on Assignments, § 2; Bishop on 
 Insolvent Debtors, § 104; Bartlett v. 
 Teah, i McCr. (U. S.) 176. 
 
 3. ' ' Every debtor has a legal right to 
 assign property for the security of the 
 debts due by him, and so far from such 
 an act being reprehended by the law, it 
 is justified and approved." Story, J., in 
 Brown v. Minturn, 2 Gall. (U. S). 557, 
 
 "The right to make a general assign- 
 ment of all a man's property results from 
 that absolute ownership which every man 
 claims over that which is his own." 
 Marshall, C. J., in Brashear v. West, 7 
 Pet. (U. S.) 608, 614. 
 
 4. The competency to make an assign- 
 ment results from the competency to in- 
 cur debts. An assignment by an infant 
 is voidable, not void. The defence of in- 
 fancy can only be made by the infant or 
 some one in his right. Soper v. Fry, 37 
 Mich. 237; Yates v. Lyon, ti N. Y. 344, 
 overruling Fox v. Heath, 21 How. Pr. 
 (N.Y.) 384. 
 
 5. De Ruyter v. Trustees, 3 N. Y. 238, 
 affirming 3 Barb. Ch. 119, 124; 2 Kent's 
 Com. (loth Ed.) 398, and note; Shockley 
 V. Fisher, 75 Mo. 498; Catlin v. Bank, 6 
 
Who may Assign. BENEFIT OF CREDITORS. Who may Assign. 
 
 restricted by its charter ^ or by some statutory provision.* 
 The Personal Property of a Partnership maybe assigned either 
 by the joint act of all the partners, or by one or more, under the 
 authority and with the consent of the rest ; ^ but not, as a gen- 
 eral rule, without tliis. authority and consent, except under pecu- 
 liar circumstances.* 
 
 Conn. 133; Haxtun v. Bishop, 3 Wend. 
 (N. Y.) 13. 
 
 Corporations have the same right to 
 confer preferences that individuals have. 
 Catlin V. Bank, 6 Conn. 233; Ringo v. 
 Biscoe, 13 Ark. 563. 
 
 It has been held that a general assign- 
 ment of corporate property cannot be 
 made, since by destroying the object for 
 which the corporation exists, it would 
 work a surrender of its charter, an act 
 both beyond the powers of the officers, 
 unless specially authorized, and contrary 
 to the provisions of the law as to the 
 winding up of corporations. Smith v. 
 Stage Co.,. 18 Abb. Pr. (N. Y.) 419; 
 Com'rs V. Bank, Har. (Mich.) 106; Dis- 
 senting op. of Story, J., in Beaston v. 
 Bank, 12 Pet. (U. S.) 102, 138. 
 
 The prevailing opinion, however, is 
 that such assignment does not affect the 
 franchises, and hence does not work a 
 dissolution. Hurlburt v. Carter, 21 Barb. 
 (N. Y.) 221; State v. Bank, 6 G. & J. 
 (Md.) 205; 3 South. L. Rev. N. S. 553. 
 
 A provision in the charter, making 
 stockholders individually liable for cor- 
 porate debts, does not affect the right to 
 assign. Pope v. Brandon, 2 Stew. (Ala ) 
 401. 
 
 A general assignment may, however, 
 not transfer the capital stock. Ohio 
 Life Co. V. Ins. Co., 11 Humph. (Tenn.) 
 I. 
 
 A quorum of the board of directors may 
 make the assignmetit. Buell v. Buck- 
 ingham, 16 Iowa, 284. 
 
 1. Ringo V. Biscoe, 13 Ark. 563. 
 
 2. Bowen v. Lease, 5 Hill (N. Y.), 221; 
 Harris v. Thompson, 15 Barb. (N. Y.) 
 62; Loring w. Gutta PerchaCo., 36 Barb. 
 (N. Y.)32g; Sibell v. Remsen, 33 N. Y. 
 95; Robinson v. Bank, 21 N. Y. 406; 
 Relfe V. Ins. Co., 5 Mo. App. 173. 
 
 In New York, the assignment must 
 have been authorized by a previous res- 
 olution of the board of directors. Curtis 
 V. Leavitt, 15 N. Y. 9. 
 
 3. Ely V. Hair, 16 B. Mon. (Ky.) 230; 
 Welles V. March. 30 N. Y. 344; Baldwin 
 V. Lyons, ig Abb. Pr. (N. Y.) 32. 
 
 An assignment made by " M., H., C, 
 and R., co-partners doing business under 
 the style and firm name of H., M. & 
 Co., party of the first part," and granting 
 to the assignee all the property " belong- 
 
 ing to said partnership, party of the 
 first part, or in which they as such co- 
 partners have any right or interest, or 
 which is held by any person or persons 
 for such partnership," is an assign- 
 ment by the partnership of the partner- 
 ship property and not by the individual 
 partners executing it. Bank v. Hackett, 
 61 Wis. 335. 
 
 4. This subject has been frequently 
 considered by courts and text-writers. 
 The cases may be grouped in three 
 classes: — 
 
 (i.) Where it was possible to consult 
 the other partner or partners. 
 
 Assignments made against the known 
 wishes of co-partners are undoubtedly in- 
 valid. Deckert v. Filbert, 3 W. & S. (Pa.) 
 454; Wilcox V. Jackson, 7 Col. 521. Mc- 
 Gregor V. Ellis, 2 Disn. (O.) 286, is not 
 an authority against this, as the court 
 held that the co partner had not openly 
 expressed his dissent in time, so that he 
 was estopped by laches. 
 
 Even where the wishes of co-partners 
 are not known and disregarded, but 
 simply not consulted, the rule seems to be 
 the same. 
 
 Egberts v. Wood, 3 Paige (N. Y.), 517, 
 is usually cited as an authority. In fact, 
 however, the decision was that as the 
 partnership had been dissolved by the 
 death of one of the partners before the 
 assignment, the assignor's individual in- 
 terest in the partnership property was all 
 that passed. The allegation that the as- 
 signment was made without the consent 
 of the other surviving -partner was ex- 
 plicitly denied by the defendants, and 
 while the chancellor did, at the request 
 of counsel, pass on the validity of an as- 
 signment by one partner alone, he re- 
 stricted this dictum (as he explicitly states 
 in Havens v. Hussey, 5 Paige (N. Y.), 30) 
 to the case of a conveyance directly to 
 creditors, which was not a feature of the 
 case before him, nor is it considered in 
 this present article. 
 
 Havens v. Hussey, 5 Paige (N.Y.),30, 
 is more directly in point, though there 
 was the additional fact that the assign- 
 ment was against the known wishes of 
 the co-partner's son and agent, so that it 
 was held to be in fraud of the co-partner's 
 rights. On the general question, the 
 chancellor said, " The principle upon 
 
 847 
 
Who may Assign, 
 
 ASSIGNMEA'TS FOR 
 
 Who may Assign. 
 
 which an assignment by one partner in 
 payment of a partnership debt rests, is 
 that there is an implied authority forthat 
 ;purpose from his co-partner, from the 
 very nature of the contract of partner- 
 ■ship, the payment of the company debts 
 being always a part of the necessary 
 ■business of the firm. But it is no part 
 >of the ordinary business of a partner- 
 s=!hip to appoint a trustee of all the part- 
 Tnership effects for the purpose of selling 
 and distributing the proceeds among the 
 .creditors in unequal proportions, and no 
 such authority as that can be implied. 
 On the contrary, such an exercise of 
 power by one of the firm, without the 
 consent of the other, is in most cases a 
 virtual dissolution of the partnership; 
 as it renders it impossible for the firm 
 to continue its business." Nothing is 
 -said about such an assignment made in 
 equal proportions, without preferences. 
 
 In Robinson w. Mcintosh, 3 E. D.. Smith 
 (N. Y.), 221, the assignment was upheld 
 as being ' ' in all respects equitable ahd 
 just to all parties, made in a condition of 
 hopeless insolvency by all of those who 
 by the terms of the actual arrangement 
 between the members are the active, 
 -managing partners." 
 
 In Deming v, Colt, 3 Sand. S. C. (N. 
 Y.) 284, it was held that " one partner 
 cannot, of his own exclusive authority, 
 make a trustee to dispose of the partner- 
 ship effects in behalf of all the co- 
 partners;" also that the circumstance of 
 insolvency did not make any difference. 
 This case preceded Robinson v. Mc- 
 intosh, however. 
 
 Hayes v. Heyer, 3 Sand. S. C. (N. Y.) 
 284, 293, is to the same effect. The 
 report of this case in 4 Sand. Ch. (N. Y.) 
 485 is on another point, and this question 
 is only referred to as difficult. 
 
 In Kirby v. Ingersoll, i Doug. (Mich.) 
 477, affirming s. c, I Harr. (Mich.) 172, 
 it was said (p. 491); " It is not within the 
 ordinary powers arising from the partner- 
 ship relation, while the business of the 
 firm is proceeding in the usual manner, 
 and both partners are present and attend- 
 ing to the affairs of the firm in the 
 ordinary manner contemplated by their 
 partnership agreement, for one partner to 
 make an assignment to a trustee for the 
 benefit of preferred creditors, with the 
 design of putting an end to the partner- 
 rship, and closing up its concerns." The 
 resulting dissolution of the partnership, 
 rather than the preferences, seems to be 
 the controlling reason, though Daly, J., 
 in referring to the case in Fisher v. 
 Murray, i E. D. Smith (N. Y.) 341, thinks 
 jt was decided on the ground of the 
 
 preferences. In this last case it was 
 held that, even without preferences, an 
 assignment made without consulting all 
 the partners, unless that is impossible, is 
 invalid. 
 
 In Hughes »v Ellison, 5 Mo. 463, and 
 Drake v. Rogers, 6 Mo. 317, the assign- 
 ments were for the benefit of such creditors 
 as should accept within a specified time, 
 but the decisions seem to uphold the 
 simple proposition that no assignment 
 without consent of all the partners is 
 valid. 
 
 Loeb V. Pierpoint, 58 Iowa, 469, is more 
 flat-footed. The assignment was without 
 preferences, but without the knowledge 
 or assent of the co-partner, ^ho was. at 
 the time, in the town where the firm 
 transacted business, and where the deed 
 was executed, and where both of the 
 parties lived. It was held that a partner 
 has not "power to execute a general 
 assignment of all the property of the nrm 
 for the benefit of its creditors without the 
 assent, expressed or implied, of his co- 
 partner, when he may be consulted upon 
 the subject and is capable of expressing 
 assent or dissent." Ex parte Daniels, 14 
 R. I. 500, is to the same effect. • 
 
 McGregor v. Ellis, 2 Disn. (Ohio) 286, 
 and Graves v. Hull, 32 Tex. 665, appear 
 to hold the contrary; but in the former 
 case the decision was that an assignment 
 by one partner is presumed to be acqui- 
 esced in by the other, unless they express 
 their dissent promptly and unequivocally, 
 which had not been done. The latter 
 case is too meagrely reported to be a 
 certain authority. 
 
 (2) Where it was not practically possible 
 to consult them. — In the earlier reports 
 such cases constitute a numerous class, 
 but in these days of easy communication 
 by telegraph with all parts of the world 
 they are not likely to arise from the mere 
 absence of a co-partner. Such assign- 
 ments have been held invalid in many 
 cases, among which are the following: 
 
 Dickinson v. Legare, i Dess. (S. Car.) 
 537 (1797) Here the assignment seems 
 to have been directly to creditors, and was 
 probably void by the laws of war, being 
 made in an enemy's country to an alien 
 enemy. 
 
 Pearpoint v. Graham, 4 Wash. C. C. 
 232 (1818). Washington, J., held that the 
 assignment had been ratified, but that 
 otherwise it could not have been sus- 
 tained, as its effect would be to terminate 
 the partnership. 
 
 Hitchcock V. St. John, i Hoff. Ch. (N. 
 Y.) 511 (1840). The assignment was held 
 void because of the preferences which re- 
 quired the consent of all the partners, 
 
 848 
 
Who may Assign. 
 
 BENEFIT OF CREDITORS. 
 
 Who may Assign. 
 
 the vice-chancellor holdin? it well estab- 
 lished that otherwise it would have been 
 valid. 
 
 Dana v. Lull, 17 Vt. 390 (1845). Here 
 the partners resided in different parts of 
 the Slate, and the assignor was the man- 
 aging partner; but it was held, on the 
 auihoriiy of Peaipoint v. Graham, that 
 there was no implied power to make 
 such assignment. 
 
 Petlee v. Orser, 6 Bosw. (N. Y.) 123 
 (1850), affirmed in Court of Appeals. See 
 Palmer v. Meyers, 43 Barb. (N. Y.) 509. 
 The assignment was by two of four part- 
 ners, the others being temporarily absent 
 on business. It made preferences. 
 
 Robinson v. Gregory, 29 Barb. (N. Y.) 
 560 (1859), reversed in Court of Appeals. 
 See Welles v. March, 30 N. Y. 344. One 
 of the partners resided abroad, and the 
 assignment was sustained on the ground 
 of necessity, but this was disapproved on 
 appeal. 
 
 Coope V. Bowles, 42 Barb. (N. Y.) 87; 
 s. c. 18 Abb. Pr. (N. Y.) 442; 28 How. 
 (N. Y.)lo (1864). It was held that only 
 previous authority or subsequent ratifica- 
 tion could uphold such an assignment, 
 made without the joinder of all the part- 
 ners. 
 
 Stein V. La Dow, 13 Minn. 412 (1868). 
 It was held that as the absent partner's 
 return was daily expected, and he had 
 given no authority, even his subsequent 
 ratification did not validate the assign- 
 ment as against creditors who attached 
 before the ratification. But in Adee v. 
 Cornell. 93 N. Y. 572 (1883), the court 
 was of opinion that a subsequent ratifica- 
 tion was effectual. 
 
 Wooldridge v\ Irving, 23 Fed. R. 676 
 (1884). Here the other partner was insane. 
 
 They have been sustained in other 
 cases, among which are: 
 
 Harrison z-.Sterry, 5 Cranch, 289 (1809). 
 The assignment was by the New York 
 partner of a London house, and Marshall, 
 C. J., held that "'the whole commercial 
 business of the company in the United 
 States was necessarily committed to the 
 only partner residing in this country . . . 
 The assignment ... is within the power 
 usually exercised by a managing part- 
 ner." It was held void on other grounds, 
 however. 
 
 Anderson v. Tompkins, i Brock. (U.S.) 
 456 (1820). The same judge decided the 
 case, expressing the same views.. He 
 said: " Had this, then, been a sale for 
 money, or on credit, no person, I think, 
 could have doubted its obligation. I can 
 perceive no distinction in law, in reason, 
 or in justice between such a sale and 
 the transaction that has taken place." 
 
 He denied that it effected a dissolution 
 of the partnership, but also expressly 
 based his conclusions on the fact that the 
 other partner, being in Europe, could 
 not have been consulted, saying: " It is 
 true Murray had a right to be consulted. 
 Had he been present, he ought to have 
 been consulted, The act ought to have 
 been, and probably would have been, a 
 joint act. But Murray was not present. 
 He had left the country and could not 
 be consulted." 
 
 Robinson v. Crowder, 4 McCord (S. 
 Car.), 519 (1828). The decision was on 
 the authority of Harrison v. Sterry, 5 
 Cranch. 289, where the court said, "It 
 was held on very sound principles that an 
 assignment of funds for the payment of 
 debts was in the course of trade. Indeed 
 every partial application of funds to the 
 payment of debts, whether it consists of 
 cash, or goods, or anything else, is in 
 effect an assignment for that purpose and 
 binds the firm. And if, in the course of 
 things, a general assignment becomes 
 necessary, there can be no reason why it 
 should not be equally binding. The prin- 
 ciple is the same whether it be partial or 
 total, and it follows that in either case one 
 may bind the whole." 
 
 McCuUough V. Somerville, 8 Leigh 
 (Va.), 415 (1836). Here the other partner 
 resided in another State. The decision 
 followed those just cited, and it was held 
 that preferences did not invalidate the 
 assignment. 
 
 Lasell V. Tucker, 5 Sneed (Tenn ), 33. 
 Here one partner was absent, but it would 
 seem from the opinion that, even irre- 
 spective of this, an assignment was held 
 to be within a partner's authority. 
 
 Forbes v. Scannell, 13 Cal. 242, 238 
 (1859), Here the assignor was at Canton, 
 one partner at Shanghae, and another at 
 Calcutta. 
 
 Ex parte Daniels, 14 R. I. 500 (1884). 
 Durfee, C. J., said:" If the other partners 
 be not present or where thqy can be 
 consulted, we think it is well established 
 that an assignment of the partnership 
 effects to a trustee for the partnership 
 creditors is valid without their consent, 
 if made by the partner in charge in good 
 faith to meet a crisis or exigency of the 
 business." 
 
 Williams v. Frost, 27 Minn. 255 (1880). 
 The assignor was in Minnesota, the other 
 partner in Holland. It was held that 
 sufficient authority had been given. 
 
 (3) A^ere a Partner has, by Absconding^ 
 relinqnished all Control over the Partner- 
 ship Property. — Here the cases all agree 
 that an assignment is valid, consent 
 being implied. Kemp v. Carnley, 3 Duer 
 
 I C. of L.— 55 
 
 849 
 
Who may Assign, 
 
 ASSIGNMENTS FOR Who may be Assignee. 
 
 An assignment of the real estate of the firm requires the con- 
 sent of all the partners.^ 
 
 A partner can assign his own interest in the firm property for 
 the benefit of his own creditors, subject to the rights of his co- 
 partners.* 
 
 In some States it has been held that surviving partners can 
 make a valid assignment.^ 
 
 Th? Debtor's Actual or Contemplated Insolvency, is not essential 
 to a valid assignment, unless made so by statute.* The fact of 
 his own belief fn his solvency has, however, been held evidence of 
 an intent to protect himself at the cost of delay and hindrance to 
 his creditors, a fact which, if established, would invalidate the as- 
 signment.^ 
 
 3. Who may be Assignee. — There is no restriction on the number 
 of assignees, but only those who accept can act,® and all those 
 who accept must act, unless the assignment be conditioned on its 
 acceptance by all.'' 
 
 The assignee must be named in the deed of assignment.^ 
 
 (N. Y.), i; Deckard v. Case, 5 WaHs 
 (Pa.). 22; Kelly v. Baker, 2 Hilt. (N. Y.) 
 536; Palmer v. Mj'ers, 43 Barb. (N. Y.) 
 509; Welles V. March, 30 N. Y. 344; 
 Bank v. Sackett, 2 Daly (N. Y.), 395; 
 Sullivan v. Smith, 15 Neb. 476. 
 
 A partner who has in fact withdrawn 
 from the firm so that as between himself 
 and the other partners he has no authority 
 or control over the property or business 
 of the firm (although as between himself 
 and the creditors he may still be liable 
 for its debts), need not join in an assign- 
 ment by such firm for the benefit of its 
 creditors. Bank v. Hackett, 61 Wis. 335. 
 
 On the whole question, see Story on 
 Part. (7th Ed.) § loi ; Parsons on Pari. (3d 
 Ed.) *i65. 
 
 1. Anderson v. Tompkins, i Brock. 
 (U. S.) 456; Lafley v. Butterfield, 
 X Met. (Mass.) 515; McCullough v. 
 Sommerville, 8 Leigh (Va.), 415, 433; 
 Thompson v. Bowman, 6 Wall. (U. S.) 
 316; Collumb V. Coldwell, 16 N. Y. 484; 
 s. C. 24 N. Y. 505; Tiemann v. Molliter. 
 71 Mo. 512; Story on Part. (7th Ed.) §101; 
 CoUyer on Partnership, § 394. 
 
 Where, however, one partner has ab- 
 sconded, the law implies his consent to 
 an assignment of real estate by his co- 
 partner. Sullivan w. Smith, 15 Neb. 476. 
 
 2. The interest conveyed is only a 
 surplus after the company's debts are 
 paid. Fellows v. Greenleaf, 43 N. H. 
 421; Schiele v. Healy,-6i How. (N. Y.) 
 73< Piatt V. Hunter, n N. Y. Weekly 
 Dig. 300. 
 
 In Haggerty v. Granger, 15 How. (N. 
 Y.) 243, the assignment was, first, to pay 
 partnership debts, and seems to have 
 
 been held void on that account. See also 
 Kirby 11. Schoonmaker, 3 Barb. Ch. (N. 
 Y.) 46. 
 
 Such an assignment works a dissolution 
 of the firm, unless the articles of co- 
 partnership provide otherwise. Horton's 
 App., 13 Pa. 67; Clark v. Wilson, 19 Pa. 
 St. 44. 
 
 Separate assignments by all the part- 
 ners to the same assignee have the same 
 effect as one assignment by all. Boughton 
 V. Crosby. 47 Conn. 577. 
 
 3. White V. Ins. Co., i N. & McC. (S. 
 Car.) 556; Gait v. Calland, 7 Leigh (Va.), 
 594; Tiemann v. Molliter, 71 Mo. 512. 
 
 It cannot be done in Tennessee. Bar- 
 croft w. Snodgrass, l Cold. (Ten n.) 430. 
 
 In'New York such an assignment, even 
 with preferences, can only be set aside 
 by the representatives of the deceased 
 partner. Williams v. Whedon. 46 N. Y. 
 S. C. (39 Hun) 98. See also Haynes v. 
 Brooks, 17 Abb. N. C. (N. Y.) 162. 
 
 4. Ogden v. Peters, 21 N. Y. 23; Ely 
 V. Cook, 18 Barb. 612; Angell w. Rosen- 
 berg, 12 Mich. 24r; Bank v. Brewster, 
 30 Conn. 539; Morgentham v. Harris, 12 
 Cal. 245. 
 
 5. Bates v. Ableman, 13 Wis. 644. 
 
 6. Moir V. Brown, 14 Barb. (N. Y.) 39; 
 Scull V. Reeves, 3 N. J. Eq. 84, 
 
 In an assignment to partners, one of 
 whom is absent, his assent will be pre- 
 sumed, unless on notice he refuses to ac- 
 cept, especially if he acts in any way. 
 Gordon v. Coolidge, i Sumn. (U. S.) 537. 
 
 7. Brennan v. Wilson, 4 Abb. N. C. 
 (N. Y.) 297; s. c, 71 N. Y. 502; Gordon 
 V. Coolidge, i Sumn. (U. S.) 537. 
 
 8. Hence an assignment with the as- 
 
 850 
 
Who may be Assignee. BENEFIT OF CREDITORS, who maybe Assignee. 
 
 Unless prevented by statute, every debtor can select his own 
 assignees without consulting his creditors,^ but the power to ap- 
 point substitutes in case of non-acceptance cannot be reserved in 
 the deed.* 
 
 The assignee should be physically and mentally qualified to per- 
 form his duties^, and of such character and financial standing as to 
 assure the confidence of the creditors.^ 
 
 The assignee may be a creditor of the assignor.* 
 
 An assignment may be made to partners.^ 
 
 A corporation can usually appoint one of its own officers as- 
 signees.* 
 
 signee's name in blank will be postponed 
 to an execution issued before the blank 
 is filled. Reamer v. Lamberton, 59 Pa. 
 St. 462; Park V. Glover, 23 Tex. 469. 
 
 If there be a transferee, but no trustee 
 named, the court will either treat the 
 transferee as trustee, or appoint one. 
 Burrows v. Lehndorfl, 8 la. 96; Ohio 
 Rev. Sts.g 6344 (Ed. 1880); Ky. Gen. - 
 Sts. 491 (Ed. 1881). 
 
 1. Wilt V. Franklin, i Binn. (Pa. ) 502, 
 516; Cram v. Mitchell, i Sand. Ch. (N. 
 Y.) 251, 253; Webb ■</. Daggett, 2 Barb. 
 (N. Y.) g, II. In the latter case it was 
 held that the selection could even be 
 made against the will of the creditors, 
 but in Cram v. Mitchell it was said that 
 it must be made with a proper reference 
 to iheir interests. 
 
 In Kansas (Comp. Laws 1881, p. 102), 
 Maine (Rev. Sts. (ed. 1882) c. 70, § 16, 24), 
 and Ohio (Rev. Sts. 1881, § 6338) the 
 creditors must be convened and select 
 the assignee. 
 
 In South Carolina they can appoint 
 one or more agents to act with the as- 
 signee. Rev. Sts., u. 97, p. 477 (Ed. 
 
 1873). 
 
 2. Planck v. Schermerhorn, 3 Barb. Ch. 
 (N. Y.) 644. 
 
 3. Wilt V. Franklin, i Binn. (Pa.) 502, 
 516; Angell V. Rosenbury. 12 Mich. 241; 
 Jennings v. Prentice, 39 Mich. 421; 
 Guerin w. Hunt, 6 Minn -375. 
 
 The selection of an incompetent as- 
 signee is evidence of a fraudulent intent. 
 Cram v. Mitchell, i Sand. Ch. (N. Y.) 
 251; Currie v. Hart, 2 Sand. Ch. (N. Y.) 
 353- 
 
 Even without proof of fraudulent intent, 
 an incompetent assignee may be removed 
 on the application of a creditor. Guerin 
 V. Hunt, 6 Minn. 375. 
 
 An assignee's insolvency was formerly 
 thought to make the assignment fraudu- 
 lent. Reed v. Emery, 8 Paige (N. Y.), 
 417; Browning v. Hart, 6 Barb. (N. Y.) 
 91. 
 
 But where the more recent statutes re- 
 
 quire him to give bond, the contrary view 
 prevails. In re Paddock, 6 How. (N. Y.) 
 215; Pearce v. Beach, 12 How. (N. Y.) 
 404; Holmberg v. Dean, 21 Kans. 73; 
 Covert V. Rogers, 38 Mich. 363. 
 
 The creditors' consent is a conclusive 
 indorsement of the assignee's fitness 
 (Reed v. Emery, 8 Paige (N. Y.), 417), 
 and they may even agree that the assign- 
 or shall act, where the right to appoint a 
 trustee is left to them. Tompkins v. 
 Wheeler, 16 Pet. (U. S.) 106. 
 
 The selection of the assignor's relatives 
 is not evidence of fraud (Shultze v. 
 Hoagland, 85 N. Y. 464; Bumpas v. Dot- 
 son, 7 Humph. (Tenn.) 310; Nesbitt v. 
 Digby,i3 111. 33), unless they are preferred 
 creditors (Cram v. Mitchell, i Sand. Ch. 
 (N. Y.) 251, 255), or of doubtful com- 
 petency. Caldwell v. Rose, Smith (Ind.), 
 190; Caldwell V. Williams, i Ind. 405; 
 Montgomery v. Kirksey, 26 Ala. 172; 
 Dunlap -J. Bournonville, 26 Pa. St. 
 72. 
 
 4. Wilt V. Franklin, i Binn. (Pa.) 502, 
 520; Johnston v. Zane's Trustees, 11 
 Gratt. (Va.) 552, 564; Gordon v. Cannon, 
 18 Gratt. (Va.) 388; Bank v. Huth, 4 B. 
 Mon. (Ky.) 423; Wooster v. Stanfield, 11 
 la. 128; Frink v. Buss, 45 N. H. 325; 
 Layson v. Rowan, 7 Rob. (La.) i. 
 
 5. As long as the assignees are clearly 
 designated, it is immaterial whether they 
 are mentioned by their firm-name or as 
 individuals. Forbes v. Scannell, 13 Cal. 
 242. 
 
 6. Pope V. Brandon, 2 Stew. (Ala.) 401. 
 
 In Michigan this has been held evi- 
 dence to go to the jury on the question 
 of good faith. Covert v. Rogers, 38 Mich. 
 363. 
 
 In New York no company that has sus- 
 pended payments can assign to one of 
 its own officers. 2 Rev. Sts. (7th Ed.) 
 P- 1534.. 
 
 A religious corporation may assign to' 
 a person ineligible as a trustee of the so- 
 ciety under its charter. De Ruyter v.- 
 Church, 3 N. Y. 238. 
 
 851 
 
What passes by 
 
 ASSIGNMENTS FOR 
 
 tlie Assignment. 
 
 Residence in the State is sometimes required ^ 
 
 4. What passes by the Assignment. — A general assignment of all 
 the debtor's property will pass to the assignee everything'-* which 
 is by its nature assignable,* except property specially exempted 
 
 1. In Wisconsin. Rev. Sts. (1878) c. 80, 
 p. 497. 
 
 In Minnesota an assignee must also be 
 both a resident and a freeliolder. Gen. 
 Sts. (Ed. 1878) c. 41, § 23, p. 544. 
 
 2. " Creditors have an equitable claim 
 on all the property of their debtor, and it 
 is his duty as well as his right to devote 
 the whole of it to the satisfaction' of their 
 claims." Marshall, C. J., in Brashear v. 
 West, 7 Pet. (U.S.) 608. 
 
 In Bank v. Roche, 93 N. Y. 374, it was 
 held that a general assignment passed a 
 judgment not mentioned therein, nor in- 
 cluded in the inventory, nor in a transfer 
 by the assignee to third parties. For how 
 the description is made, seepost, 8, p. 864. 
 
 3. For what property is legally assign- 
 able see Assignments. The following 
 are instances taken from decisions in re- 
 gard to the present subject : 
 
 Real Estate. — A purchaser's right to 
 a conveyance of land is assignable. Hal- 
 bert V. Deering, 4 Litt. (Ky.) 9; Brown 
 V. Chambers, 12 Ala. 697; Ensign v. Kel- 
 logg, 4 Pick. (Mass.) i; Coverdale v. Al- 
 drich, 19 Pick. (Mass.) 391. 
 
 So is land bound by liens or judg- 
 ments. Graves v. McFarlane, 2 Cold. 
 (Tenn.) 167; Birdwell v. Cain, I Cold. 
 (Tenn.) 301. 
 
 So a lessor's interest. Demarest v. 
 Willard, 8 Cow. (N. Y.) 206; WiUard v. 
 Tillman, 2 Hiir(N. Y.), 274. 
 
 So a husband's rights'in his wife's prop- 
 erty. Outcalt V. Van Winkle, i Green 
 Ch. (N. J.) 513- 
 
 So the income of a cestui que trust, 
 Knefler v. Shreve, 78 Ky. 297. 
 
 So growing crops. Robinson v. Maul- 
 din, II Ala. 977; Bellamy v. Bellamy's 
 Admr., 6 Fla. 52; Cochran v. Paris, 11 
 Gratt. (Va.) 348; Dance v. Seaman, 11 
 Gratt. (Va.) 778; Montgomery v. Kirksey, 
 26 Ala. 172. 
 
 A wife's dower is not divested by an 
 assignment of her husband's real estate 
 unless she join., Helfrich v. Obermyer, 
 15 Pa. St. 113. 
 
 Personal Property. — A voluntary assign- 
 ment for the benefit of creditors, which 
 is valid by the law of the assignor's domi- 
 cile, is sufficient of itself to pass title to 
 the insolvent's personal estate, whereso- 
 ever situate, and the deed, without re- 
 cording, is effective as against the as- 
 signor. Smith's App. 104 Pa. St. 381. 
 
 Goods under an attachment are assign- 
 
 able. Vernon v. Morton, 8 Dana (Ky.), 
 247. 252. 
 
 Chattels subject to a mortgage are 
 assignable whether after condition broken 
 or not. Lindemann v. Ingham, 36 Ohio 
 St. i; Gimble v. Ferguson, 58 Iowa, 414. 
 
 A part of an entire debt cannot be as- 
 signed without the debtor's consent. Gib- 
 son V. Cboke, 20 Pick. (Mass.) .15. 
 
 A contingent debt is assignable. 
 Crocker v. Whitney, 10 Mass. 316. , 
 
 A debt of the assignor's partner to the 
 partnership passes under the words ' all 
 debts due the granior." Griffin v. Macau- 
 lay, 7 Gratt. (Va.) 476. 
 
 An assignment of debts due is subject 
 to the debtor's claim of set-off of a debt 
 not yet due Fry v. Boyd, 3 Gratt. (Va.) 
 73- 
 
 A debt discharged in fraud of creditors 
 cannot be revived and assigned. Brow- 
 nell V. Curtis, 10 Paige (N. Y.), 210^ 
 Browning v. Hart, 6 Barb. (N. Y.) 91. 
 
 Claims for damages to land and in- 
 corporeal hereditaments are assignable. 
 Mayo V. Snead, 78 Ky. 634. 
 
 A right of action for fraudulent repre- 
 sentations passes by a general assign- 
 ment. Moore v. McKinstry, 37 Hun (N. 
 Y.), 194. 
 
 In some States claims for torts to per- 
 sonalty do not pass unless specifically- 
 mentioned. Whitakerz/. Gavit, 18 Conn. 
 522. 
 
 A chattel held by the vendor as-secur- 
 ity for the purchase-money is assignable. 
 Watson V. Dobbin, 89 N. Car. 107; Mil- 
 ler V. Hoyle, 6 Ired. Eq. (N. Car.) 269; 
 Williams v. Leachey, 85 N. Car. 402. 
 
 Even before the laws putting a married 
 woman's personalty in her own control, 
 an assignment of all the debtor's estate 
 did not pass a chose in action of his 
 wife, unless specially mentioned. Eshle- 
 man v. Shuman, 13 Pa. St. 561; Skinner's' 
 App., 5 Pa. St. 262. 
 
 After an assignment of the property 
 described in a schedule, the assignor de- 
 livered to the assignee a chattel not in- 
 cluded in the schedule, intending, whether 
 it was included or not, that it should be 
 appropriated for the benefit of his credi- 
 tors. Held, that it passed, and he could 
 not reclaim it. Faxon v. Durant, g Mete. 
 (Mass.) 339. 
 
 It has been held that a trade-mark is 
 not assignable. Bradley v. Norton, 35 
 Conn. 158. 
 
 852 
 
"What passes by 
 
 BENEFIT OF CREDITORS. 
 
 the Assignment. 
 
 by law,i or excepted by the terms of the dee(J or the schedules 
 annexed,'-* where the law allows an exception. 
 
 But the weight of authority is the other 
 way. In re Knox, I Monthly L. Bulle- 
 tin, 47; Milliken v. Dart, 26 Hun (N. Y.), 
 24; Hegeman v. Hegeman, 8 Daly (N. Y.), 
 i; Morgan v. Rogers, 19 Fed. R. 5g6. 
 
 A trade-name is not assignable, and a 
 purchaser of all the assigned stock, etc., 
 who continues the business at the old 
 stand, cannot prevent the assignor from 
 forming a company and carrying on the 
 business under the old name. Iowa Seed 
 Co. V. Dow, 30 N. W. Rep. 864. 
 
 Partnership property does not pass un- 
 less an intent to that effect be shown. 
 Merrill v. Wilson, 29 Me. 58. 
 
 An assignment in Virginia preferred 
 certain creditors mentioned in a schedule 
 in which the amounts due them were also 
 stated. Some of these debts being fic- 
 titious, it was held that the assets in- 
 tended to be applied to them did not pass 
 
 under the provisions of the deed, but re- 
 mained in the assignor as to attaching 
 creditors, and were subject to their claim. 
 
 Bank V. Hofheimer, 23 Fed. R. 13. 
 
 1. This is usually the property e.xempt 
 
 from execution, and an assignment is not 
 
 void for reserving this property. Mul- 
 
 ford V. Shirk, 26 Pa. St. 473; ,Heckman 
 
 V. Messenger, 49 Pa. St. 465; Peterman's 
 
 App., 76 Pa. 279; Dow V. Platner, 16 N. 
 
 Y. 562; Dolson V. Kerr, 5 Hun (N. Y.), 
 
 643; Baldwin v. Peet, 22 Tex. 708; Gar- 
 ner V. Frederick, 18 Ind. 507; Perry v. 
 
 Vezina, 63 la. 25; Hollister v. Loud, 2 
 
 Mich. 309; Smith v. Mitchell, 12 Mich. 
 
 180; Brooks V. Nichols, 17 Mich. 38; 
 
 Rosenthal v. Scott, 41 Mich. 632; Far- 
 
 quharson v. McDonald, 2 Heisk. (Tenn.) 
 
 404; Sugg V. Tillman, 2 Swan (Tenn.), 
 
 3o8; Simpson v. Roberts, 35 Ga. 180. 
 In Connecticut real estate outside the 
 
 State, and, in the case of sole assignors, 
 
 one hundred dollars in cash, are also ex- 
 empt. Gen. Sts. (Rev. 1875) p. 378, § i. 
 
 But the cash is not exempt unless so 
 
 claimed in the instrument. Raymond's 
 
 App., 28 Conn. 47. 
 
 In California insurance on the debtor's 
 
 life is also exempt. Civ. Code Cal. § 
 
 2470. 
 
 In Indiana resident householders have 
 
 an additional exemption of six hundred 
 
 dollars' worth. O'Neil v. Beck, 69 Ind. 
 
 239; Garner v. Frederick, 18 Ind. 407. 
 In Michigan an assignment is subject 
 
 to the assignor's right of selection of 
 
 property exempt from execution, which 
 
 need not be specified in the instrument. 
 Hollister v. Loud, 2 Mich. 309; Smith v. 
 Mitchell, 12 Mich. 180; Brooks v. Nich- 
 
 ols, 17 Mich. 38; Rosenthal v. Scott, 41 
 Mich. 632. 
 
 In Pennsylvania the exemption on 
 household furniture and things of do- 
 mestic use can be claimed subsequently, 
 though no claim was made in the assign- 
 ment. I Purd. Dig. (1885) 123, P'- 23. 
 
 In New Jersey it has been held that an 
 assignment covering exempt property 
 subjects it to an execution which is prior 
 to the assignment. Moses v. Thomas, 
 26 N. J. L. 124; Van Waggoner v. 
 Moses, 26 N. J. L. 570. 
 
 It has been held that a homestead al- 
 lowance does not pass by a general as- 
 signment. Hoge V. Hollister, 8 Bax. 
 (Tenn.) 533. And that where the home- 
 stead burned down the debtor's wife 
 could claim an allowance from the as- 
 ■sjgnee. Kelly v. Duffy, 31 Ohio St. 437. 
 An assignor who has judgments 
 against him with waiver of exemption 
 can claim none in his assignment. 
 Shaeffer's App., joi Pa. St. 45. 
 
 When only real estate passes, the ex- 
 emption, though reserved, should be 
 claimed before the appraisers, and if the 
 assignor neglects to apply for an ap- 
 praisement of property to be reserved, 
 his administrator can claim nothing. 
 Shaeffer's App., loi Pa. St. 45. 
 
 A reservation, of $300 worth of exempt 
 property, to be selected after the assign- 
 ment, is valid. Rainwater v. Stevens, 15 
 Mo. App. 544. 
 
 If an assignment by a firm excepts ex- 
 empt property without designating it, 
 the presumption is that an exemption 
 out of the individual property of each 
 partner was intended, and the assign- 
 ment is valid. Wooldridge v. Iving, 23 
 Fed. R. 676. 
 
 2. Such an exception, making the as- 
 signment partial in fact, if not in terms, 
 is allowed in some States. Mississippi: 
 Ingraham v. Grigg, 13 Sm. & M. (Miss.) 
 22. Pennsylvania: Knight i". Waterman, 
 36 Pa. St. 258; Heckman v. Messenger, 
 49 Pa. St. 465. Wisconsin: Bates v. Able- 
 man, 13 Wis. 644. Texas: Baldwin v. 
 Peet, 22 Tex. 708; New York: Carpenter 
 V. Underwood, 19 N. Y. 520. 
 
 An exception of property as exempt 
 by law, when in fact the law exempts 
 none, does not invalidate an assignment. 
 Dodd V. Hills, 21 Kans. 707; GoU v. 
 Hubbell, 61 Wis. 293; Bank v. Hackett, 
 61 Wis. 335. 
 
 Neither does the fact that some of the 
 property is real estate within the jurisdic- 
 tion of a foreign court, and which there- 
 
 853 
 
What passes \>j 
 
 ASSIGNMENTS FOR 
 
 the Assignment, 
 
 'Only such property will pass, however, as is embraced in the 
 terms of the instrument, and the effects of an assignment purport- 
 ing to be general will be modified by descriptive clauses, or a 
 schedule, which operate to limit the property assigned to that 
 described in them.^ 
 
 The assignee takes only such rights in the property as the as- 
 signor had at the time of the assignment.^ It follows from this 
 well-known principle that an assignment does not pass title to 
 property previously transferred by the assignor, even if in fraud 
 of his creditors.* In some States this has been altered by statute.* 
 
 fore cannot pass. Frink v. Buss, 45 N. 
 H. 325. 
 
 1. Burrill on Assignments, § 98. And 
 see cases cited in last note. 
 
 2. Hence real estate already levied on 
 does not pass. Kingman v. Loyer, 40 
 Ohio St. log. 
 
 In Rhode Island a mortgage of person- 
 alty is invalid against third parties with- 
 dut recording and delivery of possession, 
 but even without these a bona-jide mortga- 
 gee, who did not design to give the mort- 
 gagor a fictitious credit, is entitled to the 
 proceeds after sale under a subsoquent 
 general assignment. Wilson v. Esten, 
 14 R. I. 621. 
 
 An assignee for the benefit of creditors 
 can take no exception to the validity of 
 a chattel mortgage given by his assignor, 
 on the ground that it was not filed in the 
 county where the mortgagor actually re- 
 sided. He is bound by the equity to 
 which the property was subject when it 
 came to his hands from the assignor. 
 Shaw V. Glen, 37 N. J. Eq. 32. 
 
 A mortgage was executed in June, 
 1884, to secure a debt, by the debtor, 
 who, in September, 1884, made an as- 
 signment for the benefit of such creditors 
 as would consent to take under it. 
 There was nothing to show that the as- 
 signment was contemplated when the 
 mortgage was given, or that the mort- 
 gagor intended by executing it to delay 
 or defraud other creditors, or to give 
 a preference over other creditors, or 
 that the mortgagee believed that such 
 was the purpose of the mortgagor. 
 Held, construing in this connection the 
 ninth section of the Texas act relating to 
 assignments, that the assignee did not 
 have the same right t6 attack the mort- 
 gage, which was unrecorded, as creditors 
 of the assignor holding liens would have. 
 Keller v. Smalley, 63 Tex. 512. 
 
 A parol transfer of goods to arrive, as 
 security for a pre-existing debt and pro- 
 spective advances, is valid against the 
 assignee though the pledgee do not take 
 possession till after the assignment. 
 Gammons v. Holman, 11 Or. 284. 
 
 An assignment by one partner gives 
 
 only a limited right to the assignee. 
 Moddewell v. Keever, 8 W. & S. (Pa.) 
 63; Fellows V. Greenleaf, 43 N. H. 421. 
 
 A general assignment does not pass 
 the debtor's interest in money borrowed 
 by him, then in course of transmission 
 to the lender. Sheldon v. Dodge, 4 
 Den. (N. Y.) 217. 
 
 Nor a note transferred to the assignor 
 for collection. Worthington v. Greer, 
 
 17 B. Mon. (Ky.) 741. 
 
 An assignment of "all the. rum and 
 other liquors, . . . casks, etc., and other 
 personal property whatever, being on 
 the premises of or belonging to" the 
 debtor, does not pass barrels of rum pre- 
 viously consigned to a commission-mer- 
 chant elsewhere for sale, though still un- 
 sold. Tucker v. Clesby, 12 Pick. (Mass.) 
 22. See also Shaw v. Lowry, Wright 
 (O.), 190. 
 
 Subsequently acquired property does 
 not pass. McCabe's App., 22 Pa. St. 427; 
 Lorenz v. Orlady, 87 Pa. St. 228; Haskins 
 V. Alcott, 13 Ohio St. 210; Shipman v. 
 Graves, 41 Mich. 675. 
 
 Nor do goods in transit not mentioned 
 in the assignment, and not intended 
 either by vendor or vendee to become 
 the vendee's property in case of an as- 
 signment by him, even if they come into 
 his possession. Clark v. Bartlett. 50 Wis. 
 543. See Lacker v. Rhoads, 51 N.Y. 641. 
 
 3. Brownell v. Curtis, 10 Paige (N. Y.), 
 210; Leach v. Kelsey, 7 Barb. (N. Y.) 
 466; Van Heusen v. Radcliffe, 17 N. Y. 
 580; Van Dyke v. Christ, 7 W. & S. 
 (Pa.) 373; Estabrooke v. Messersmith, 
 
 18 Wis. 545; Hawks v. Pritzlaff, 51 Wis. 
 160; Flower v. Cornish, 25 Minn. 473; 
 Heinrichs v. Woods, 7 Mo. App. 236; 
 Hanes v. Tiffany, 25 Ohio St. 549. 
 
 In Iowa, as at common law, the right 
 of a. creditor to set aside a fraudulent 
 conveyance of his debtor does not pass 
 to the assignee. Rumsey v. Town, 20 
 Fed. R. 558; Sandwich Co. v. Wright, 
 22 Fed. R. 631. But in the latter case it 
 was held that an assignee may defeat the 
 effect of a fraudulent mortgage on realty 
 assigned. 
 
 4. In New York such transfers and 
 
 854- 
 
Formal Bequisites SENEFIT OF CREDITORS. of an Assignment, 
 
 In an assignment for particular creditors, the property assigned 
 must not exceed the indebtedness provided for.'- 
 
 5. Formal Kec[uisites of an Assignment. — General assignments should 
 always be in writing,* and partial assignments are usually so.^ 
 
 The instrument is best drawn in the form of a deed conveying 
 the property, with a declaration of trust* directing the disposition 
 
 other like acts may be resisted and the 
 property recovered by the assignees. 3 
 Rev. Sts. (7 Ed.) p. 2330; Southard -0. 
 Benner, 72 N. Y. 424; Ball v. Slafter, 
 32 Hun (N. Y.), 353; Leonard v. Claflin, 
 26 Hun (N. Y.), 288; Miller v. Halsey, 
 4 Abb. N. C. (N. Y.) 28; McMahon v. 
 Allen, 35 N. Y. 403; s. c, 32 How. (N. 
 
 Y.)3i3. 
 
 So in Maine. Rev. Sts. (Ed. 1883) c. 
 70, § 52. 
 
 An assignee may maintain a bill in 
 equity against the assignor and his grant- 
 ee to recover property fraudulently con- 
 veyed and transferred by the assignor, 
 previously to the assignment, however 
 defective the description, or inapplica- 
 ble to the property the terms of the as- 
 signment may be. Simpson v. Warren, 
 55 Me. 18. 
 
 So in Michigan. How. Sts. § 8741; 
 Heineman v. Hart, 55 Mich. 64. 
 
 So in Wisconsin. Batten v. Smith, 
 62 Wis. 92. 
 
 In Connecticut proceedings in insol- 
 vency must be begun within sixty days 
 after the transfer in order to affect it. 
 Palmer v. Thayer, 28 Conn. 257; Ship- 
 man V. .lEtna Ins. Co., 29 Conn. 245; Sis- 
 son V. Roath, 30 Conn. 15; Robertson 
 V. Todd, 31 Conn. 555; Thomas v. Beck, 
 39 Conn. 241. 
 
 A mortgage void as to creditors is void 
 as against an assignee for the benefit of 
 creditors. Hanes v. Tiffany, 25 Ohio St. 
 549; Lindemann v. Ingham, 36 Ohio St. I. 
 
 A deed of assignment for the benefit 
 of creditors, which excepts from the op- 
 eration of the assignment "all existing 
 liens," does not give priority to a mort- 
 gage lien which is void as against credi- 
 tors although valid as against the as- 
 signor. Blandy v. Benedict, 42 Ohio 
 St. 295. 
 
 1. In such a case, an excess is evidence 
 of fraud. Beck v. Burdett, i Paige (N. 
 Y.), 305; Butler v. Stoddard, 7 Paige 
 (N.Y.), 163; Stetson v. Miller, 36 Ala. 642; 
 Longmire v, Goode, 38 Ala. 577; Du 
 Bose V. Carlisle, 51 Ala. 590; Watkinsz/.- 
 Jenkins, 24 Ga. 431. 
 
 But an excess more apparent than real 
 will not invalidate. Beck v. Burdett, i 
 Paige (N. Y.), 305. 
 
 In Massachusetts the excess can be at- 
 
 tached by other creditors. Foster v. 
 Manf. Co., 12 Pick. (Mass.) 451; RussdV 
 V. Woodward, 10 Pick. (Mass.) 408; 
 Adams v. Blodgett, 2 Wood. & M. (Mass.) 
 233; Hastings v. Baldwin, 17 Mass. 552. 
 
 2. Hertle v. McDonald, 2 Md. Ch. Dec. 
 128. 
 
 This is usually required by statute^. 
 E.g., in Connecticut: Gen. Sts. (Rev.. 
 1875) p. 378; Whitaker v. Gart, 18 Conni. 
 522. Indiana: Rev. Sts. (ed. 1876) § 2663.. 
 Minnesota : Sts. (1878) p. 544. New- 
 York : 3 Rev. Sts. (7th Ed.) p. 2276 ; 
 Hardman v. Bowen, 39 N. Y. 196; Brit- 
 ton V. Lorenz, 45 N. Y. 51; s. c, 3 Daly, 
 23; Kercheis v. Schloss, 49 How. (N.Y.) 
 284. Oregon: Laws of 1878, p. 37. 
 
 Assignments of real estate come with- 
 in the statutes of frauds, and must be in 
 writing. Lill v. Brant, 6 Brad. (111.) 
 366. 
 
 3. Partial assignments of personalty 
 have sometimes been sustained, though 
 verbal. Loftin v. Lyon, 22 Ala. 540; 
 Higginbottom v. Peyton, 3 Rich. Eq. 
 (S. Car.) 398; Brown v. Chamberlain, g 
 Fla. 464; Gordon v. Green, 10 Ga. 534; 
 Lockwood V. Canfield, 20 111. 126; Newby 
 V. Hill, 2 Mete. (Ky.) 530; Boyddn v. 
 Moore, 11 Pick. (Mass.) 362; sed contra, 
 Foster v. Lowell. 4 Mass. 308. 
 
 4. Burrill on Assignments, § 127; Bishop 
 on Insolvent Debtors, § 12O. 
 
 No particular form of words is nec- 
 essary to create a trust, Gordon v. 
 Green, 10 Ga. 534 ; Wallace v. Wain- 
 wright, 87 Pa. St. 263; Bank v. Trust Co., 
 II Phila. (Pa.) 510. 
 
 Hence no particular form of words is 
 necessary to constitute an assignment in 
 trust for creditors. But the transaction 
 must be in substance an absolute transfer 
 of property in trust for the benefit of 
 creditors. Therefore, where A and B, 
 residing in Montgomery County, being 
 financially embarrassed, obtained an ex- 
 tension of time from their creditors, and 
 in consideration thereof gave a mortgage 
 on their real estate to C, who resided in 
 Philadelphia County, to secure their lia- 
 bilities thus extended, and C sold the 
 property under the mortgage, and subse- 
 quently, regarding the mortgage as an as- 
 signment for the benefit of creditors 
 under the act of 1836, filed his account 
 
 855 
 
rormal Beqoisites 
 
 ASSIGNMENTS FOR 
 
 of an Assignment, 
 
 to be made of it. Informal writings, however, have often^been 
 held valid. '^ 
 
 An assignment may be made by several instruments.* The 
 
 in the Common Pleas of Montgomery 1. E.g., a letter inclosing notes, with 
 
 County, as provided in that act, held, 
 that the mortgage was not an assignment 
 for creditors within the act, and that the 
 jurisdiction over the account was in the 
 Common Pleas of Philadelphia Coijnty, 
 the, domicile of the trustee. Johnson's 
 App., 103 Pa. St. 373. 
 
 So a pledge or mortgage to secure fu- 
 ture advances to be made by the pledgee 
 to pay the debts of the pledgor, not ex- 
 ceeding an amount specified, with power 
 to pledge or mortgage the property to 
 others to secure any money he might bor- 
 row to make the advances, is no assign- 
 ment for the benefit of creditors. It 
 transfers no ownership except so -far as 
 needed to secure the pledgee for the ad- 
 vances he might make. Beans v. Bullitt, 
 57 Pa. St. 221; Kalkman v. McElderry, 16 
 Md. 57; Brown v. Holcomb, i Stock. 
 (N. J.) 297. S,ee also Britton v. Lorenz, 
 45 N. Y. 51. 
 
 A judgment given to prefer a particu- 
 lar creditor is not an assignment in a 
 State where preferences are forbidden. 
 Blakey's App., '7 Pa. St. 449. 
 
 Neither is a judgment confessed to a 
 trustee for the payment of certain speci- 
 fied creditors. Guy v. Mcllree, 26 Pa. 
 St. 92. 
 
 An assignment made to the assignee, 
 "his heirs, executors, administrators, 
 and assigns," is in proper form. It de- 
 scribes the quality of the estate conveyed, 
 not a class of persons to whom it is con- 
 veyed. Flagler v. Schoeffel, 40 Hun (N. 
 Y.), 178. 
 
 An assignment to the assignee, "his 
 heirs, executors, administrators, and as- 
 signs," instead of to "his successors and 
 assigns," is usual and proper where the 
 assignment includes real estate. Bates 
 ■V, Simmons, 62 Wis. 69. 
 
 Where there is more than one assignee, 
 words of survivorship should be used. 
 Burrill on Assignments, § 140. 
 
 In Pennsylvania the wife must join in- 
 an assignment of real estate to bar her 
 dower. Hennessy v. Western Bk. , 6 W. 
 & S. (Pa.) 300; Helfrich v. Obermyer, 15 
 Pa. St. 113. So in Maryland (Schumann 
 V. Peddicord, 50 Md. 560; Reiff w. Eshle- 
 man, 52 Md. 582; Reiff v. Horst, 55 Md. 
 42) and Virginia. Reynolds v. B3,nk, 6 
 Gratt. (Va.) 174. In New York the wife 
 must join in a separate deed of the land 
 of even date. Darling v. Rogers, 22 
 Wend. (N. Y.) 483. 
 
 directions for their appropriation in pay- 
 ment of debts. Shilbar v. Winding, i 
 Chev. L. (S. Car.) 218; Hall v. Marston, 
 17 Mass. 575. 
 
 A power of attorney to collect certain 
 moneys and pay certain creditors in a 
 specified order has been held an assign- 
 ment. Watson V. Bagaley, 12 Pa. St. 164. 
 See also Stimpson v. Fries, 2 Jones Eq. 
 (N. Car.) 156. 
 
 A lease reserving a portion of the rent 
 for the payment of the lessor's debts has 
 been Held an assignment. Lucas v. S. & 
 E. R., 32 Pa. St. 458; Bittenger v. Rail- 
 road, 40 Pa. St. 269. 
 
 In the former case it was said in the 
 court below : "The means employed in 
 each particular instance would have 
 seemed immaterial if the result were a 
 transfer in trust or a trust bottomed on a 
 transfer; if, in short, the property ceased 
 to be the debtor's without vesting directly 
 and absolutely in his creditors, and re- 
 mained outstanding in the hands of a 
 third person who could not be compelled 
 to render an account or to fulfil the duties 
 imposed upon him without a recourse to 
 the aid of equity." 
 
 A declaration made before an Ameri- 
 can consul in foreign parts, signed and 
 acknowledged by the assignor, has been 
 held valid. Forbes v. Scammell, 13 Cal. 
 242. 
 
 2. A deed of absolute conveyance and 
 a declaration of trust in a separate instru- 
 ment have been sustained as one assign- 
 ment. Bank v. Reigart, 4 Pa. 477; John- 
 sdn V. Whitwell, ^• Pick. (Mass.) 71. 
 
 So three deeds of trust, executed at in- 
 tervals of some years. Stimpson v. Fries, 
 2 Jones Eq. (N. Car.) 156. 
 
 So partial assignments in the form of 
 distinct deeds, which were intended to 
 evade the priority of the United States. 
 Downing v. Kintzing, 2 S. & R. (Pa.) 
 326. 
 
 Where the defendant executed chattel 
 mortgages for the benefit of certain cred- 
 itors, and on the same day a general as- 
 signment, they were held one transaction 
 and invalidated by the /preference. Van 
 Patten v. Burr, 52 Iowa, 518. 
 . Where the deed of assignment made 
 for the benefit of creditors conveyed 
 designated property, without specifying 
 in terms that it mentioned all the property 
 owned by the assignor, but there was at- 
 tached to and made part of the assign- 
 
 856 
 
Formal KequisiteB BENEFIT OF CREDITORS. of an Assignment. 
 
 schedules, or inventories, of assets and liabilities are essential 
 features of an assignment. ^ The general rule is that these should 
 be prepared and annexed to the assignment before its execution;** 
 but if the omission is promptly supplied, an assignment is usually- 
 allowed to take effect even before they are annexed.^ 
 
 ment an inventory which contained a 
 declaration that the property therein 
 named was all the estate of the assignor 
 of every description, except such as was 
 exempt from forced sale, the two papers 
 were construed as one, and as a compli- 
 ance with the second section of the act of 
 March 24, 1879, which required a convey- 
 ance of all the debtor's property except 
 that which was exempt. Keating v. 
 Vaughn, 61 Tex. 518. 
 
 But it has been held that where an in- 
 solvent person executed two chattel mort- 
 gages in good faith for a valuable consid- 
 eration for the benefit of certain creditors, 
 and such mortgages were duly filed, and 
 thereafter and upon the next day a deed 
 of voluntary assignment for the benefit 
 of all his creditors was executed by hin?, 
 the execution of such instruments does 
 not constitute a single transaction, nor 
 do such chattel mortgages and the assign- 
 ment defeat each, other, as each is valid. 
 Bailey v. Mfg. Co., 32 Kan. 73. See 
 also Norton v. Kearney, 10 Wis. 443; 
 , Barrows v. Lehndorff, 8 Iowa, 96; Van 
 Vleet, V. Slauson, 45 Barb. (N. Y.) 317; 
 Bridges v. Hindes, 16 Md. loi; Berry?/. 
 Cutts, 42 Me. 445; Schoolfield v. John- 
 son, II Fed. Rep. 297; Blank v. German, 
 5 W. & S. (Pa.) 36; Mussey v. Noyes, 26 
 Vt. 468; Peck V. Merrill, 26 Vt. 680; 
 French v. Townes, 10 Graft. (Va.) 513; 
 U. S. V. Bank of U. S., 8 Rob. (La.) 262; 
 Holt v. Bancroft, 30 Ala. 195; Kruse v. 
 Prindle, 8 Or. 158; Lill v. Brant, 6 Brad. 
 (111.) 366; Moody V. Paschal, 5o Tex. 
 
 483- 
 
 1. Terry v. Butler, 43 Barb. (N. Y.) 
 395; Talcott V. Hess, 31 Hun(N. Y.) 282. 
 
 This is true when they are required by 
 statute, as is usually the case. For the 
 assignee's inventory seepost, 11, p. 874. 
 
 2. Burrill on Assignments, §§ 139, 
 
 151- 
 
 In New Jersey a sworn inventory or 
 schedule must be annexed to the assign- 
 ment. Rev. Sts. (Ed. 1878) p. 37, § 2. 
 
 So in Vermont. Code of 1880, tit. 14, t. 
 7, §§ 2117, 2124. 
 
 In Coggin v. Stephens, 73 Ga. 414, no 
 inventory was taken until after the in- 
 strument was executed, and it was never 
 sworn to or annexed to the conveyance. 
 A judgment obtained after the making of 
 thiSi instrument was levied on the prop- 
 erty. Held, that the assignment was 
 
 void because there was no complete in- 
 ventory and schedule of the assets of the 
 assignor made out and sworn to by him 
 and attached to the deed. 
 
 3. Clark v. Mix, 15 Conn. 152; Wood- 
 ward V. Marshall, 22 Pick. (Mass.) 468; 
 Stevens v. Bell, 6 Mass. 339; Emerson z/. 
 Knower, 8 Pick. (Mass.) 63; Stamp v. 
 Case, 41 Mich. 267; Keyes v. Brush, 2 
 Paige (N. Y.), 311; Hotop v. Neidig, 17 
 Abb. Pr. (N. Y.) 332; Turner v. Jaycox, 
 40 N. Y. 470 (but see Moir v. Brown, 
 14 Barb. (N. Y.) 39); Rundlett v. Dole, 
 10 N. H. 438; Hardcastle v. Fisher, 24 
 Mo. 70; Robins v, Embry, i Sm. & M. 
 Ch. (Miss.) 207; Shackelford v. Bank, 
 22 Ala. 238 ; Gordon v. Cannon, 18 
 Gratt. (Va.) 388; Ely v. Blair, 16 B. 
 Mon. (Ky.) 230; Poehlmann v. Kennedy, 
 48 Cal. 201; Meeker v, Saunders, 6 Iowa, 
 61; Linn v. Wright, 18 Tex. 317; Stein- 
 lein V. Halstead, 52 Wis. 289; Pearpoint 
 V. Graham, 4 Wash. C. C. 232. 
 
 The omission of the schedule, taken 
 with other circumstances, maybe evidence 
 of fraud. Van Nest v. Yoe, i Sand. Ch. 
 (N. Y.) 4; Kellogg ii. Slauson. 15 Barb. 
 (N. Y.) 56; s. c, II N. Y. 302; Stevens 
 V. Bell, 6 Mass. 339; Wilt v. Franklin, i 
 Binn. (Pa.) 502, 514. 
 
 In Wisconsin a failure to make and file 
 an inventory within ten days after the 
 assignment is executed renders the as- 
 signment void, even if this happen 
 through mistake. Mather v. McMillan, 
 60 Wis. 546. 
 
 Sufficiency of the Schedules. — The pro- 
 vision of the New York act in relation to 
 assignments for the benefit of creditors 
 (subd. 3, § 3, chap. 466, Leiws of 1877), 
 requiring that the inventory of a debtor 
 making an assignment shall state the sum 
 owing to each creditor "with the true 
 cause and consideration therefor" does 
 not require, where the indebtedness con- 
 sists of promissory notes, that the inven- 
 tory should state what they were given 
 for. A statement, as to each note, of its 
 date, time of payment, payee, to whom 
 belonging, and the amount due thereon, 
 is sufficient. Pratt v. Stevens, 94 N. Y. 
 387. 
 
 The schedules filed with an assignment 
 by a partnership need not show the state 
 of the accounts between the firm and the 
 individual partners or between such part- 
 ners. Sn^ith V. Bowen, 61 Wis. 258. 
 
 857 
 
Formal Beqnisitea 
 
 ASSIGNMENTS FOR 
 
 of an Assignment. 
 
 The assignee is sometimes a party to the instrument.' 
 
 When the assignment is manifestly for the advantage of the cred- 
 itors, with no provisions prejudicial to them, their consent will be 
 presumed unless the contrary appears, though they do not join 
 in the deed.* 
 
 If the assignment requires some act to be done which is not 
 presumptively for the benefit of the creditors, it cannot bind them 
 without their consent, and they would be proper parties to the 
 instrument.^ 
 
 If th-e assignment be drawn with the express design that it 
 should be executed by the creditors, or expressly requires their 
 
 Omissions from the list of creditors, 
 or a failure to state tiie true amount 
 of a certain debt, if caused by an inno- 
 cent mistalce, do not invalidate an as- 
 signment. Smith V. Bowen, 6i Wis. 
 258. 
 
 In Barroilhet v. Fisch, 63 Cal. 462, it 
 was said: "Conceding that the assignor 
 in some instances inventoried his indebt- 
 edness to some of the creditors, for whose 
 benefit said the assignment was made, too 
 high, we think, in the absence of any evi- 
 dence that it was designedly done, the as- 
 signment should not be held void forthat 
 reason. A mere mistake of computa- 
 tion ought not to vitiate such an assign- 
 ment, and we are not prepared to say 
 from an inspection of the record that 
 there is anything more than that appa- 
 rent in this case. The court below found 
 that there was not, and we must pre- 
 sume that the evidence justified that find- 
 ing unless the contrary appears." 
 
 The Wisconsin statute (sec. 1697 R. S.) 
 providing that no mistake in the inven- 
 tory and list of creditors shall, invalidate 
 a voluntary assignment applies to mis- 
 takes of omission. Batten v. Smith, 62 
 Wis. 92. 
 
 In an assignment of individual and 
 firm assets the inventory filed comprised, 
 apparently, a merchant's stock of goods 
 only. The Affidavit annexed thereto 
 stated that it was "true and correct of all 
 the assets of the firm of B. & Co., of 
 which B. is the sole member." Held, 
 that, presumptively and in the absence 
 of evidence to show a mistake in the affi- 
 davit, the inventory was not "a correct 
 inventory " of all the assets of B. 
 within the meaning of sec. 1697 R. S.; 
 and, by the failure to file such a correct 
 inventory within ten days after the exe- 
 cution of the assignment, the title of the 
 assignee was divested. Haben v. Har- 
 shaw, 59 Wis. 508. 
 
 1. This is usual when the instrument 
 contains an express provision for its ex- 
 ecution by the assignee, or a covenant to 
 
 be performed by him. Burrill on Assign- 
 ment, § 124. 
 
 Acceptance by the assignee is necessa- 
 ry, but not his signature. State v. Ben- 
 oist, 37 Mo. SOD. 
 
 2. Nichol V. Mumford, 4 Johns. Ch. 
 (N. Y.) 522; Ludington's Petition, 5 Abb. 
 N. C. (N. Y.) 307; Brown v. Minturn, 2 
 Gall. (U. S.) 557; Lawrence v. Davis, 3 
 McL. (U. S.) 177; Ward v. Lewis, 4 Pick. 
 (Mass.) 518 ; Pingree z/. Comstock, 18 Pick. 
 (Mass.) 46; Weir v. TannehiUe, 2 Yerg. 
 (Tenn.) 57; Robertson v. Sublett, 6 
 Humph. (Tenn.) 313; Ingram v. Kirk- 
 patrick, 6 Ired.Eq. (N. Car.) 462; Stimp- 
 son V. Fries, 2 Jones Eq. (N. Car.) 156; 
 Jones V, Dougherty, 10 Ga. 273 ; Bellam,y 
 V, Bellamy, 6 Fla. 62; Brown v. Cham- 
 berlain, 9 Fla. 464; Forbes v. Scannell, 
 13 Cal. (Va.) 242; Hall v.^ Dennison, 17 
 Vt. 310; Fellows t/.Greenleaf,43 N.H.421. 
 
 Where the creditors are not required to 
 be parties to the instrument, they may 
 take the benefit of the' trust by notice to 
 the trustee within the time named, if any, 
 and if none, then within a reasonable 
 time and before a distribution of the 
 property. McFerran v. Davis, 70 Ga. 
 661. ^ 
 
 Where a deed of trust was executed to 
 secure creditors (naming them), and au- 
 thorized the trustee to divide the pro- 
 ceeds of the sale of property conveyed 
 pro rata "amongst the said subscribing 
 creditors, parties of the third part," but 
 it was signed only by the grantor and 
 trustee, and the trust accepted by the lat- 
 ter,, held, that the deed was binding on 
 tho.'iewho'executed it, although it appeared 
 that when it was drawn the secured cred- 
 itors should also sign, and the same was 
 properly admitted to probate and regis- 
 tration. Moore v. Hinnant, 89 N. Car. 
 
 455- 
 
 8. ^.^., if a release is stipulated for. 
 Wakeman v. Grover, 4 Paige (N. Y.) 23; 
 s. c, II Wend. (N. Y.) 187; Drake v. 
 Rogers, 6 Mo. 317. But see Gale v. Men- 
 sing, 20,Mo. 461. 
 
 858 
 
Formal Requisites BENEFIT OF CREDITORS. of an Assignment 
 
 assent, they must execute it or express'their assent as required, to 
 make it binding as to them.^ 
 
 An assignment may be made by attorney under a proper 
 power/'* 
 
 An assignment must be attested, sworn to, or acknowledged,* 
 
 1. Lawrence v. Davis, 3 McL. (U. S.) 
 177; Brown v. Lyon, 17 Ala. 659; 
 Shearer v. Loftus, 26 Ala. 603. 
 
 But in Windham v. Paity, 62 Tex. 490, 
 the assignment on its face contemplated 
 three parties to it, viz., the makers, the 
 assignee, and the creditors, " who have 
 executed or may hereafter execute or ac- 
 cede to its terms." The deed closed with 
 these words: "And the parties of the 
 third part (the creditors) express their 
 consent to this arrangement and accept 
 the provisions made for them." It was 
 only signed by the makers and the as- 
 signee. Held, the creditors accepting the 
 provisions of the deed might do so with- 
 out signing it. 
 
 In Hewlett v. Cutler, 137 Mass. 285, an 
 assignment was made in consideration of 
 the covenants and agreements therein 
 expressed to be performed by "their 
 creditors " and the trustees, and of one 
 dollar and other good and valuable con- 
 siderations paid to the assignors by 
 "said creditors " and the trustees. The 
 assignment recited that it was the pur- 
 pose of the assignors to have the instru- 
 ment executed by all their creditors 
 whose claims should equal or exceed a 
 certain sum, and to secure their own re- 
 lease from all personal responsibility 
 for their debts, except those which were 
 trifling in amount; provided that, when 
 they should express their satisfaction 
 with the due execution of the in- 
 strument in writing and upon the in- 
 strument, it should be a perfected con- 
 veyance and agreement, and not before; 
 and the assignors covenanted with the 
 trustees and their creditors to execute 
 further conveyances if required. The 
 instrument also recited that the creditors 
 had appointed an advisory committee, 
 who were to advise the trustees; and 
 provided for filling vacancies by a vote 
 of the creditors. The trustees were con- 
 stituted the attorneys of the assignors 
 and of the creditors; and covenanted 
 with them, "parties hereto," to execute 
 the trust faitlifully; and the respective 
 creditors of the assignors, each for him- 
 self, ratified the conveyance, and agreed 
 to accept from the trustees their dividend 
 or proportionate part of the estate in full 
 payment, satisfaction, and discharge of 
 their respective debts, "and an accept- 
 ance of this conveyance for our benefit. 
 
 859 
 
 evidenced by our signature hereto, shall 
 constitute such discharge." Held, that 
 only such creditors as became parties to 
 the assignment were entitled to share in 
 the dividends. 
 
 Creditors may become parties by filings 
 their claims under the assignment, with- 
 out having signed the instrument. Bod- 
 ley V. Goodrich, 7 How. (U. S.) 276. 
 
 8. Lowenstein v. FJaurand, 82 N. Y. 
 494- 
 
 3. In New York both acknowledg- 
 ment and recording have been held es- 
 sential to the validity of an assignment, 
 and due acknowledgment is necessary to^ 
 make the recording effectual. 
 
 The New York Common Pleas held, in 
 1884, that any defect in the officer's cer- 
 tificate of acknowledgment (e.g., referring 
 to the assignee as the party "described 
 in and who executed the same," instead 
 of "the within instrument") made the 
 assignment absolutely void. Smith v. 
 Tim, 14 Abb. N. C. (N. Y.) 447; practi- 
 cally reversing Tim v. Smith, 13 Abb. 
 N. C. (N. Y.) 31. 
 
 The Supreme Court, however, in 1885, 
 held that the words "the same" were not 
 meaningless, and that the officer should 
 have been allowed to testify that the ac- 
 knowledgment was in fact made in due 
 form at the time stated. Claflin v. Smith, 
 35 Hun (N. Y.), 372. 
 
 So a notary's certificate of acknowledg- 
 ment, if defective, can be corrected by 
 him so as to validate the assignment, 
 even after the assignor's death. Camp^ 
 V. Buxton, 34 Hun (N. Y.), 511. ' 
 
 In New Jersey acknowledgment is not 
 necessary to the vesting of the estate as- 
 signed. Scull V. Reeves, 3 N. J. Eq. 84. 
 
 In Illinois an assignment is not re- 
 quired by the statute to be acknowledged 
 in the county where the grantor resides, 
 but must be there recorded. The words 
 in the first section of the act of 1877, that 
 ' ' every assignment shall be duly acknowl- 
 edged and recorded in the county where 
 the person or persons making the same 
 reside," do not require the deed to be ac- 
 knowledged at the county of the grantor's 
 residence. There should be a comma- 
 after the word "acknowledged." Zim- 
 merman V. Willard, 114 111. 364. See 
 also Rendleman v. Willard, 15 Mo. App. 
 375- 
 
 A certificate of the acknowledgment o£ 
 
I'ormal Bequisites. 
 
 ASSIGNMENTS FOR 
 
 Frfifereuoes, 
 
 and recorded^ in the manner provided by statute. It must also 
 be' delivered to* and accepted by"* the assignee. 
 ' 6. Preferences. — In most of the States, assignments preferring cer- 
 tain creditors are now forbidden by statute.* Even in those 
 
 a deed by a debtor, of his lands, etc., for 
 the benefit of creditors, which stated that 
 the grantor was personally Jcnown to the 
 officer, and that he appeared before such 
 officer and made the acknowledgment of 
 the deed, is substantially good, as suffi- 
 ciently showing that the grantor did ap- 
 pear in person before the officer, at least 
 under the act relating to voluntary as- 
 signments. Zimmerman v. Willard, 114 
 III. 364. 
 
 1. In New York it has recently (in 
 1885) been held that the title to the prop- 
 erty assigned vests in the assignee on the 
 execution, acknowledgment, and delivery 
 of the assignment, and an attachment 
 procured after the delivery, even with 
 levy before the recording, effects nothing. 
 McBlain v. Spelman, 35 Hun (N. Y.), 
 263; overruling Rennie v, Gaige, 24 Hun 
 <N. Y.), 123. 
 
 In Minnesota indorsement and record 
 {of the assignment, inventory, and bond) 
 provided for in section 31 of the assign- 
 ment law (Gen. St. 1878, c. 41) are not 
 essential to the validity of the assign- 
 ment. Perkins v. Zarracher, 32 Minn. 
 
 75- 
 
 In Virginia an assignment is void until 
 recorded, and all interference with the 
 insolvent's goods may be enjoined on the 
 ground of fraud in an unrecorded assign- 
 ment, and a marshal put in immediate 
 possession. Shufeldt v. Jenkins, 22«Fed. 
 
 R- 359- 
 
 In Pennsylvania the assignment of a 
 non-resident may be recorded within any 
 county of the State where the assignor 
 has any real or personal estate, and will 
 then take effect from its date, saving the 
 rights of '' bona-fide purchasers, mort- 
 gagees, or creditors having a lien thereon 
 before the recording, in the same county, 
 and not having had previons actual notice 
 thereof." Tiiose having actual knowledge 
 of, the assignment are not within this 
 saving clause, and can take no title by 
 deed from the assignor, i Purd. Dig. 
 (ed. 1885) 122, pi. 14; Smith's App. , 104 
 Pa. 381. 
 
 In Missouri taking possession by the 
 assignee has been held equivalent to re- 
 cording, at least until a reasonable time 
 for the recording has elapsed. Wise v. 
 Wimer, 23 Mo. 507. 
 
 2. Delivery to the assignee is essential 
 to make the deed effectual. An attach- 
 ment after execution, before delivery, is 
 
 good against tlie assignee. Marston v. 
 Coburn, 17 Mass. 454. 
 
 Delivery inay be proved by parol evi- 
 dence, as also that the delivery was con- 
 ditional, to take effect when the instru- 
 ment should be signed by the greater 
 part of the creditors. Ward v. Lewis, 4 
 Pick. (Mass.) 518. 
 
 3. In New York the assignee's- assent 
 may be either by a recital embodied in 
 the assignment, and he may sign and 
 acknowledge the instrument, or it may be 
 by a separate writing duly acknowledged 
 either at the end of or indorsed upon 
 the instrument, but apparently not by an 
 independent document physically sepa- 
 rate from the instrument. Noyes v. 
 Wernberg, 15 Abb. N. C. (N. Y.) 164. 
 
 Where, under the old law in force in 
 New York, a deed was put into the hands 
 of the assignee, and . he hesitated and 
 delayed to accept it, but subsequently, 
 after an execution had been levied, 
 claimed the property under it, it was held 
 that, the deed did not operate against the 
 execution, for there was a clear non-ac- 
 ceptance in fact during the period of de- 
 lay. Crosby v. Hillyer, 24 Wend. (N. 
 Y.) 280. 
 
 In Missouri the beneficial interest of 
 the creditors vests as soon as the assign- 
 ment is rci-oided, irrespective of the as- 
 signee's acceptance. Rendleman v. Wil- 
 lard, 15 Mo. App. 375. • 
 
 But his acceptance is necessary to bind " 
 him. State v. Benoist, 37 Mo. 500. 
 
 4. Whatever may be thought of the jus- 
 tice of allowing a debtor to make an as- 
 signment with preferences, its legality,' 
 under the comfnon law, is indisputable. 
 In Thomas v. Jenks, 5 Rawle (Pa.), 22i; 
 I Am. Lead. Cas. *56, Gibson, C. J., 
 said (in 1835) of preferential assignments 
 stipulating for a release: "The basis of it 
 is the admitted right which every debtor 
 in failing circumstances has, to prefer one 
 creditor to another; for as an assignment 
 on valuable consideration and for a law- 
 ful purpose, as payment of debts is, ne- 
 cessarily passes the property out of the 
 debtor, the consequence indicated as ap- 
 parently objectionable is unavoidable, 
 though there be even an express reserva- 
 tion of a trust for the debtor in the un- 
 consumed surplus, which is no more than 
 the law would imply without it. The 
 difficulty is to understand how he may 
 lawfully manage his right to give a pref- 
 
 860 
 
Preferences. 
 
 BENEFIT OF CREDITORS. 
 
 Preferences. 
 
 erence in such a way as to secure an ad- 
 vantage to himself in the release of his 
 person and future earnings. And the solu- 
 tion of it is found in the arbitrary control 
 over the order of payment allowed him 
 by the common law, and not restrained by 
 ihe 13 Elizabeth; which, suffering him to 
 postpone any creditor to the rest, makes 
 participation of the fund before those he 
 may choose to prefer are served, not so 
 much matter of right as of favor. To let 
 a creditor in among the first, therefore, 
 though on condition that he release the 
 unpaid residue of his debt, may be to do 
 him a favor instead of a wrong, which 
 may consequently be extended to him on 
 terms, or not at all. Having an unques- 
 tionable power of preference, of which he 
 is the absolute master, it follows that he 
 may set his price upon it, provided it is 
 not a reservation of part of the effects for 
 himself, or anything that would carry his 
 power beyond mere preference. Such is 
 the unavoidable if not the just effect of 
 suffering a debtor to distribute the wreck 
 of his fortune among his creditors accord- 
 ing to his pleasure, and it is the repug- 
 nance of the mind to inequality of satis- 
 faction which has induced legislators to 
 extirpate the root of it in bankruptcy and 
 insolvency by substituting a process of 
 distribution paramount to the will of the 
 debtor." 
 
 The "unavoidable effect" of allowing 
 preferences, as described in the above 
 quotation, has induced a radical change 
 in the law, and in the greater number of 
 the States preferences are now either 
 wholly forbidden by statute, or allowed 
 only as to claims for wages of labor (usu- 
 ally limited to fifty dollars), or a few other 
 exceptional matters. 
 
 This change has taken place in Ala- 
 bama, California, Colorado, Connecticut, 
 Delaware, Illinois, Indiana, Iowa, Kan- 
 sas, Kentucky, Louisiana, Maine, Massa- 
 chusetts, Michigan, Minnesota, Missouri, 
 Nebraska, New Hampshire, New Jersey, 
 Ohio, Oregon, Pennsylvania, Rhode Is- 
 land, Tennessee, Vermont, and Wiscon- 
 sin. See the statutes of those States. 
 
 In some of these States the statutes do 
 not make preferential assignments abso- 
 lutely void, but simply n'uUify that pro- 
 vision. 
 
 In Henderson v. Pierce, g N. East. R. 
 449, it was held that while creditors can- 
 not be preferred in a deed of assignment 
 made in pursuance of the statute govern- 
 ing voluntary assignments for the benefit 
 of creditors, yet a mere direction that the 
 assignee shall first pay certain creditors 
 in full, and then all others ratably, fol- 
 lowed by the statement, " in accordance 
 
 with an act of the legislature of the State- 
 of Indiana, entitled ' An act providing 
 for voluntary assignments,' " etc., '''ap- 
 proved March 5, 1859," does not render 
 the entire assignment invalid, especially 
 where the whole scope and tenor of the 
 deed show that the assignment was made 
 in good faith, and intended to be gov- 
 erned by the statute. 
 
 In Missouri, no matter by what form 
 of instrument preferences are attempted, 
 only a pro rata distribution is allowed. 
 Kerbs v. Ewing, 22 Fed. Rep. 693. 
 
 In Nebraska, if any preferences are 
 made, that part of the assignment will be 
 held void. Nelson v. Garey, 15 Neb. 531. 
 
 In Smith V. Bowen, 61 Wis. 258, a vol- 
 untary assignment which upon its face 
 was for the benefit of all c;:editors alike 
 required the assignee to pay the debts 
 " to and in the order and manner follow- 
 ing," etc., the words quoted being those 
 of the old form of assignment when pref- 
 erences were allowed. Held, that such 
 words did not render the assignment un- 
 certain, but might be rejected as sur- 
 plusage. 
 
 In Bates v. Simmons, 62 Wis. 69, it 
 was held that an assignment with prefer- 
 ences, made before the enactment of ch. 
 349, Laws of 1883, prohibiting such pref- 
 erences, is not illegal merely because 
 made in anticipation of the passage of 
 that act. 
 
 Where wages are preferred by statute, 
 an omission to prefer them in the assign- 
 ment does not invalidate it, as the statute 
 will control. Richardson v. Herron, 39 
 Hun (N. Y.), 537; Hurley v. Hanson, 
 40 Hun (N. Y.), 121. 
 
 Partial assignments giving preferences 
 have been sometimes held void, irre- 
 spective of any statute. Goodrich v. 
 Downs, 6 Hill (N. Y.), 438; Barney ». 
 Griffin, 2 N. Y. 365; Rathbuh v. Platner, 
 18 Barb. (N. Y.) 272; Sangston v. Gai- 
 ther, 3 Md. 40; Rankin v. Loder, 21 Ala. 
 380; Shackelford v. Bank, 22 Ala. 238. 
 
 What are not Preferences. — Where one 
 executed chattel mortgages upon all his 
 property to three of his creditors, and 
 afterwards, on the same day, made an 
 assignment for the benefit of his credi- 
 tors, subject to the chattel mortgages, 
 but it appeared from the evidence that at 
 the time he made the mortgages he did 
 not contemplate making an assignment, 
 the assignment was not held to be void 
 as including the mortgages, and thus pre- 
 ferring creditors. Farwell v. Jones, 63. 
 Iowa, 316. See also Perry v. Vezina, 63 
 Iowa, 25. 
 
 In Gallagher's App., 7 Atl. R. 237, it 
 was held that the Pennsylvania statute 
 
 861 
 
prefer ences. 
 
 ASSIGNMENTS FOR 
 
 Preferences. 
 
 States which allow them they are regarded with disfavor,^ and 
 must be distinctly declared in the deed, and the order of payment 
 fixed* at the time the assignment is made.* 
 
 did not preclude a debtor from preferring 
 a creditor prior to the assignment, wiiile 
 he still retained dominion of his prop- 
 erty, so long as he violated no law and 
 committed no fraud. 
 
 In Nelson v. Garey, 15 Neb. 531, it 
 was held that the Nebraska act forbidding 
 preferences does not prevent a debtor, 
 though in failing circumstances, from 
 preferring a creditor by a separate and 
 independent conveyance unconnected 
 with the transaction of making the as- 
 signment, even though the preferred 
 creditor be the assignee named in the as- 
 signment subsequently made. Hence 
 the fact that a mortgage was made to a 
 creditor the same day of the assignment, 
 if made bona fide and without fraudulent 
 intent, will not render it a part of the as- 
 signment so as to convey the mortgaged 
 property in trust for creditors. 
 
 In Evans v. Winston, 74 Ala. 349, an 
 assignment of individual and partnership 
 property, devoting the former primarily 
 to the payment of individual debts, was 
 held not to be a preference in the true 
 sense of the term. 
 
 1. The view adopted seems to be 
 that (as was held in (jhler v. Mulfair, 23 
 Pa. 481), since the claims of creditors 
 may be meritorious in unequal degrees, 
 and since particular creditors have it in 
 their power to obtain a priority by legal 
 proceedings, the preference of creditors 
 is an allowed object or result of a debt- 
 or's assignment, but that it is not to be 
 used as. a means of accomplishing ends 
 ■which are not the legitimate objects of a 
 debtor's efforts. 
 
 Hence, while in Georgia a debtor may 
 prefer one creditor to another by any 
 legal means, he cannot reserve the sur- 
 plus for his own benefit or that of any 
 other favored creditor, to the exclusion of 
 other creditors. McFerran v. Davis, 70 
 Ga. 661. 
 
 In Barney v. Griffin, 2 N. Y. 365, it 
 was said, "The courts have very reluc- 
 tantly upheld general assignments by an 
 insolvent debtor, which give a preference 
 among creditors; and they can only be 
 supported when they make a full and un- 
 conditional surrender of the property to 
 the payment of debts." See also Nichol- 
 son V. Leavitt, 6 N. Y. 510; Dunham v. 
 Waterman, 17 N.Y. 9; Haydock v. Coope, 
 53 N. Y. 68; Hafner v. Irwin, i Ired. L. 
 (N. Car.) 490; Smith v. Henry, i Hill (Sj 
 Car.), 16. 
 
 A debtor will not be permitted, at or 
 before the time the debt is created, by a 
 secret agreement with any of his credit- 
 ors to engage to prefer their debts in any 
 event in case of emergency, and by such 
 arrangement, in effect, place a secret 
 mortgage upon the assets. Bank v. 
 Whitmore, 40 Hun (N. Y.), 499. 
 
 Corporations, when assigning because 
 of or in contemplation of insolvency, can- 
 not prefer creditors in New York. 2 
 Rev. Sts. (7th Ed.) p. 1366, § 9; Curtis v. 
 Leavitt, 15 N. Y. 9. 
 
 The giving of preferences prevents a 
 discharge under the " Two-thirds" act in 
 New York. Code C. P. § 2173, 2; Bishop 
 on Insolvent Debtors, § 34. 
 
 Assignments giving preferences are to 
 be construed strictly, and courts of equity 
 will not interpolate phrases to carry out 
 a. possible intent to give preferences 
 otherwise than as expressed. Bank v. 
 Hofheimer, 23 Fed. R. 13. 
 
 An assignment by a firm giving prefer- 
 ences to individual creditors out of the firm 
 assets is fraudulent. Vernon v. Upson, 
 60 Wis. 418; Willis V. Bremner, 60 Wis. 
 622. (Cases arising before the act of 1883.) 
 
 A preference given to a creditor as 
 surety on certain debts, does not make 
 him a preferred creditor as to other 
 claims. Gilchrist v. Gilmer, 9 Ala. 9B5, 
 a case arising before the passage of the 
 present act. 
 
 2, Merely placing debts at the head of 
 the list gives them no preference. Wins- 
 low V. Assignees, i McCord Ch. (S. 
 Car.) 100. ' 
 
 So where the debts are grouped into 
 classes with a view to preferences. Col- 
 gin V. Redman, 20 Ala. 650. 
 
 3. An assignment which substantially 
 reserves to the assignors the right to give 
 future preferences is fraudulent and void 
 as against creditors who have not assent- 
 ed thereto. Averill v. Loucks, 6 Barb. 
 (N. Y.)47o; Kercheis v. Schloss, 49 How. 
 (N. Y.)284; Hyslop v. Clarke, 14 John. 
 (N. Y.) 458; Keiley v. Dusenbury, ig 
 Alb. L. J. (N. Y.) 498; Frazier v. Truax, 
 27 Hun (N. Y.), 587. 
 
 So an assignment which attempts to 
 confer on the assignee power to declare 
 future preferences, as to non-preferred 
 creditors, in his discretion, is void. 
 Moody V. Paschal, 60 Tex. 483; Board- 
 man V. Halliday, 10 Paige (N. Y.), 223; 
 Barnum v. Hempstead, 7 Paige (N. Y.), 
 568. 
 
 863 
 
Beservations and 
 
 BENEFIT OF CREDITORS. 
 
 Stipulations. 
 
 An assignment in which the right to a preference is conditioned 
 on giving a release is usually held void.''^ 
 
 7. Reservations and Stipulations. — The circumstance which most 
 usually renders assignments fraudulent is the reservation of a use 
 or benefit to the assignor or his family, or to any one not a 
 creditor.'^ 
 
 Stipulations for the release of the debtor, as a condition of par- 
 ticipation in the benefits of the assignment, are forbidden in many 
 States, and the weight of authority is against their validity.' 
 
 1. Goodrich v. Downs, 6 Hill (N. Y.), continue the business until all the stock 
 
 438; Spaulding v. Strong, 32 Barb. (N. 
 Y.) 240; Hafner v. Irwin, i Ired. L. (N. 
 Car.) 490; Robins v. Embry, i Sm. & M. 
 Ch. (Miss.) 208. 
 
 2. It is well settled that such a reserva- 
 tion of any trust, benefit, or profit out of 
 the property assigned is fraudulent in 
 law. Jackson v. Parker, 9 Cow. (N. Y.) 
 73, 86; Mead v. Phillips, i Sand. Ch. (N. 
 Y.) 83; Goodrich v. Downs, 6 Hill (N. 
 Y.), 438; Kissam v. Edmundson, i Ired. 
 Eq. (N. Car.) 180; McAllister v. Mar- 
 shall, 6 Binn. (Pa.) 338; Faunce v. Les- 
 ley, 6 Pa. St. 121; Byrd v. Bradley, 2 B. 
 Mon. (Ky.) 239; Whallon v. Scott, 10 
 Watts (Pa.), 237; Cannon v. Peebles, 2 
 Ired. Law (S. Car.), 449; Litchfield v. 
 White, 3 Sand. S. C. (N. Y.) 554. 
 
 Conditions for the payment of money 
 for the support of the assignor or his 
 family invalidate the deed. Mackie v. 
 Cairns, Hopk. Ch. (N. Y.) 373; s. c, 5 
 Cow. (N. Y.) 547; Harris v. Sumner, 2 
 Pick. (Mass.) 129; Johnston v. Harvey, 
 2 P. & W. (Pa.) 82. 
 
 Even if in the shape of salary for 
 nominal services. Currie v. Hart, 2 
 Sand. Ch. (N. Y.) 353. 
 
 Where the assignor reserved a small 
 sum for purpose of paying small unliqui- 
 dated claims, such reservation was sus- 
 tained. Skipwith V. Cunningham, 8 
 Leigh. (Va.) 271. 
 
 A condition for the employment of the 
 debtor as agent, if the assignee think 
 proper, has also been sustained. Bank 
 V. Clarke, 7 Ala. 765. 
 
 Stipulations for the retention of pos- 
 session and use of the property by .the 
 assignor are ordinarily invalid. Lock- 
 hart V. Wyatt, 10 Ala. 231; Brooks v. 
 Wimer, 20 Mo. 503 ; Hatcher v. Winters, 
 71 Mo. 30; Klappw. Shirk, 13 Pa. St. 579; 
 Knight V. Packer, 12 N. J. Eq. 214. 
 
 But they have been sustained in some 
 cases. Baxter w. Wheeler, 9 Pick. (Mass). 
 21; Kevan v. Branch, I Gratt. (Va.) 274. 
 
 Where the contents of stores and fac- 
 tories and the like are assigned, stipula- 
 tions that the assets should not be imme- 
 diately sold, but that the assignees should 
 
 was worked up and disposed of have 
 often been sustained. Kendall v. Carpet 
 Co., II Conn.. 383; Foster v. Saco Co. 
 12 Pick. (Mass.) 451. Ravisies v. Alston, 
 5 Ala. 297; Jones v. Syer, 52 Md. 211. 
 
 But it has been said in New York that 
 the debtor can prescribe no conditions 
 whatever as to this matter. Dunham v. 
 Waterman, 17 N. Y. 9; Schlussel 11. Wil- 
 lett, 34 Barb. (N. Y.) 615. 
 
 3. Burrill on Assignments, §§ 184-197. 
 Such stipulations are in the nature of 
 preferences. They are forbidden by 
 statute in Pennsylvania, California, and 
 Vermont. 
 
 They are invalid in New York: Wake- 
 man 1). Grover, 4 Paige (N. Y.), 23; Austin 
 V. Bell, 20 John. (N. Y.) 442; Armstrong 
 V. Byrne, i Ed. Ch. (N. Y.) 79; Mills v. 
 Levy, 2 Ed. Ch. (N. Y.) 183. So in Ohio: 
 Atkinson v. Jordan, 5 Ohio, 178. Georgia: 
 Miller v. Conklin, 17 Ga. 430; Johnson 
 V. Farnam, 56 Ga. 144. North Carolina: 
 Hafner v. Irwin, i Ired. Law (N. Car.), 
 490. Mississippi: Robins v. Embry, i 
 Sm. & M. (Miss.); 208. Missouri: Brown 
 V. Knox, 6 Mo. 302. Tennessee: Wilde 
 V. Rawlings, i Head (Tenn.), 34. 
 
 They have been held valid in Massa- 
 chusetts: Hewlett V. Cutler, 137 Mass. 
 285. In Rhode Island: Dockray z;. Dock- 
 ray, 2 R. I. 547; Allen v. Gardner, 7 R. 
 I. 22. In South Carolina: Pfelfer v. Dar- 
 gan, 14 S. Car. 44. In Virginia: Skip- 
 with V. Cunningham, 8 Leigh (Va.) 271; 
 Gordon v. Cannon, 18 Gratt. (Va.) 387. 
 In Alabama: Robinson v. Rapelye, 2 
 Stew. (Ala.) 86. But the assignment 
 must be complete, with no stipulation 
 for a return of part of the proceeds to the 
 debtor. Grimshaw v. Walker, 12 Ala. 
 loi; West V. Snodgrass, 17 Ala. 549; 
 Rankin v. Lodor, 21 Ala. 380. In Mary- 
 land on the same conditions. McCall v. 
 Hinckley, 4 Gill (Md.), 128; Whedbee v. 
 Stewart, 40 Md. 414; Maughlin v. Tyler, 
 47 Md. 545. So in Arkansas: Clayton v. 
 Johnson, 36 Ark. 406. 
 
 In Keating w. Vaughn, 61 Tex. 518, it 
 was held that a State statute which, in 
 providing for the administration of the 
 
 863 
 
other reatures 
 
 ASSIGNMENTS FOR 
 
 ,of the Seed. 
 
 A provision that the surplus shall be returned to the assignor 
 after all the debts are paid is valid, and would be implied by law 
 if not expressed.^ 
 
 8. Other Features of the Deed. — A reference to the assignor's 
 losses in business or to other reasons for the assignment is not 
 advisable.** 
 
 The trust to pay the debts is regarded as a sufficient consid- 
 eration.^ 
 
 estates of insolvents, under assignments 
 voluntarily made, permits such assign- 
 ments for the benefit only of such credi- 
 tors as may cqnsent to receive their pro- 
 portionate share of the debtor's estate 
 and execute a release of the debtor, can- 
 not be construed as being a law impair- 
 ing the obligation of contracts; and an 
 assignment made under such a law can- 
 not be held void because some of the 
 creditors are citizens of other States. 
 
 1. Halseyz/. Whitney, 4 Mason (U. S.), 
 206, 222; Hall v. Dennison, 17 Vt. 310; 
 Van Rossum v. Walker, 11 Barb. (N. Y.) 
 237; Curtis V. Leavitt, 15 N. Y. 120; 
 Potter V. Paige, 54 Pa. 465; Inre Mann, 
 32 Minn. 60. 
 
 So where partnership property' is as- 
 signed for the payment of all partnership 
 debts. Bogert v. Haight, 9 Paige (N. Y.), 
 297. 
 
 But unless all debts are provided for it is 
 fraudulent and void, as tending to hinder 
 and delay creditors, and that whether the 
 surplus be in fact large or small, or even 
 if there turn out to be no surplus at all. 
 Barney v. Griffin, 2 N. Y. 365; Leitch z;. 
 HoUisier, 4 N. Y. 211. 
 
 And therefore where both individual 
 and partnership property is assigned for 
 the benefit of partnership creditors, a 
 reservation of the surplus without pro- 
 viding for the individual creditors will 
 avoid the assignment. Bogert v. Cald- 
 well, 16 N. Y. 484. 
 
 It has usually been held that a reserva- 
 tion of the surplus is valid in assignments 
 for the benefit of a part of the creditors, 
 that there also the law would imply it, 
 and that it does not affect the rights of 
 the other creditors. Ely v. Hair, 16 B. 
 Mon. (Ky.) 230; Burgin v. Burgin. i 
 Ired. L. (N. Car.) 453; Miller v. Stetson, 
 32 Ala. 161; N. A. & S. R. v. Huff, 19 
 Ind. 444; Bank v. Gorman, 8 W. & S. 
 (Pa.) 304. 
 
 It has even been held that it must be 
 provided in such a case that the surplus 
 is to go to the rest of the creditors. Dana 
 V. Lull, 17 Vt. 390; Palmer v. Mason, 42 
 Mich. 150. 
 
 In Keating v. Vaughn, 61 Tex. 518, it 
 was held that under the first and ninth 
 
 sections of the act of March 24, 1879, 
 every conceivable interest of the assignor 
 in the property which he owned had 
 passed by the deed to the assignee, and 
 it was unimportant whether the assign- 
 ment reserved a surplus that might re- 
 main after satisfying consenting credi- 
 tors, as they might attach it in the as- 
 signee's hands. 
 
 2. Kellogg V, Slauson, 15 Barb. (N. 
 Y.) 56; s. c, II N. Y. 302; Van Nest v. 
 Yoe, I Sand. Ch. (N. Y.) 4. 
 
 Recitals of losses are usually immate- 
 rial at best. Graham v. Lockhart, 8 Ala. 
 9; Shackelford v. Bank, 22 Ala. 238; 
 Reinhard v. Bank, 6 B. Mon. (Ky.) 252; 
 Griffin z/. Macaulay, 7 Gratt. (Va.) 476; 
 Ward r'. Trbtter, 3 Mon. (Ky.) i; Ver- 
 non V. Morton, 8 Dana (Ky.), 247; Brig- 
 ham &. TiUinghast, 15 Barb. (N. Y.) 618; 
 s. c, 13 N. Y. 215. 
 
 3, A general assignment for the benefit 
 of creditors, bona fide made by the debtor 
 and assented to by the assignee, will be 
 deemed a valid conveyence founded upon 
 a valuable consideration, and good against 
 creditors proceeding adversely to it, at> 
 least unless all the creditors for whose 
 benefit it is made repudiate it. McFer- 
 ran u. Davis, 70 Ga. 661. See also Hal- 
 sey I/. Whitney, 4 Mason (U. S.), 206, 214; 
 U. S. V. Bank of U. S., 8 Rob. (La.) 405; 
 Hall w. Dennison, 17 Vt. 310; Hudson v. 
 Maze, 4 111. 678; Meeker v. Saunders, 6 
 Iowa, 61; Nutter v. Harris, 9 Ind. 88; 
 Feimester v. McRorie, 12 Ind. 287; Bank 
 V. Huth, 4 B. Mon. (Ky.) 423; Bank v. 
 Knox, 19 Gratt. (Va.) 739; Haven v. 
 Richardson, 5 N. H. 113; Thomas v. 
 Clark, 65 Me. 296; Dey v. Dunham, 2 
 John. Ch. (N., Y.) 182; Lawrence v. Da- 
 vis, 3 McL. (U. S.) 177; Burd v. Smith, 
 4 Dall. (Pa.) 76; Wilt v. Franklin, i Binn. 
 (Pa.) 502; Gates v. Labeaume, 19 Mo. 
 17; HoUister v. Loud, 2 Mich. 309; 
 Brown v. Bartee, 10 Sm. & M. (Miss.) 
 268; Code of Georgia, § 2744. 
 
 A nominal consideration is usual in 
 some States. Cunningham v. Freeborn, 
 II Wend. (N. Y.) 240. 
 
 In Massachusetts assignments where 
 the only consideration is the acceptance 
 of the trust are of no effect against non- 
 
 864 
 
Othei Features 
 
 BENEFIT OF CREDITORS. 
 
 of the Deed 
 
 The description of the property intended to be assigned may 
 be contained eitlier in the deed or in the schedule of assets 
 annexed,^ but it must be sufficiently explicit to enable the assignee 
 ■to distinguish the property with certainty.* 
 
 The trusts are for the conversion* and distribution* of the 
 property. 
 
 Smith, i6 Pick. (Mass.) 247. See also 
 Clark w. Mix, 15 Conn. 152; Emerson v. 
 Knower, 8 Pick. (Mass.) 63; Pingree v. 
 Comstock, 18 Pick. (Mass.) 46; Raynor 
 V. Raynor, 21 Hun (N. Y), 36; Kellogg 
 V. Slauson, 15 Barb. (N. Y.) 56; s. c, n 
 N. Y. 302; Passmore v. Eldridge, 12 S. 
 & R. (Pa.) igS; Kevan v. Branch, i Gratt. 
 (Va.) 274; Tarver v. Rolfe, 7 Ala. 873; 
 Brown v. Lyon, 17 Ala. 659; Robins v. 
 Embry, i Sm. & M. Ch. (Miss.) 207; 
 Brashear v. West, 7 Pet. (U. S.) 608; 
 Bates V. Simmons, 62 Wis. 69. 
 
 An erroneous description will not pre- 
 vent property from passing. Sandford v. 
 Conant, 2 Sand. S. C. (N. Y.) 143. 
 
 A description of real estate has been 
 held essential. Bellamy v. Bellamy, 6 
 Fla. 62; Ryerson v. Eldrid, 18 Mich. 12. 
 
 An omission of assets does not make 
 the assignment void. Hayes v. Doane, 
 II N. J. Eq. 84; Schultz v. Hoagland, 85 
 N. Y. 464. 
 
 It has been held that the effect of an 
 assignment of "all the property contained 
 in the schedule" is to pass nothing not 
 mentioned therein. U. S. v. Howland, 
 
 4 Wheat. 108; U. S. v. Langton, 5 Mason 
 (U. S.), 280; Mims w. Armstrong. 31 Md. 
 87; Rundlett v. Dole, 10 N. H. 458; Beard 
 V. Kimball, 11 N. H. 471; Driscoll v. 
 Fiske, 21 Pick. (Mass.) 503. 
 
 But it has been held that an assign- 
 ment clearly purporting to be general, 
 but referring to a schedule for more par- 
 ticular description, is not controlled by 
 the schedule if defective. Turner v. Jay- 
 cox, 40 N. Y. 470. 
 
 3. A power to sell and convey is nec- 
 essarily implied by a conveyance of prop- 
 erty for the payment of debts. Williams 
 V. Otey, 8 Humph. (Tenn.) 653; Forbes 
 V. Scannell, 13 Cal. 326. 
 
 But an assignment of personalty "and 
 all other estate and effects" does not give 
 a power to sell real estate without express 
 words. Boker v. Crookshank, i Phila. 
 (Pa.)i93; /« re Gallagher, 5 Phila.(Pa.)83. 
 
 4. The property is to be applied : (i) To 
 pay the expenses, with a proper compen- 
 sation to the assignee. Bank ». Cox, 6 
 Greenl. (Me.) 395; Andrews v. Lunlow, 
 
 5 Pick; (Mass.) 28; Butt v. Peck, i Daly 
 (N. Y.), 83; Iselinj/. Dalrymple, 27 How. 
 (N. Y.) 137; Vernon v. Morton, 8 Dana 
 (Ky.), 247. 
 
 assenting creditors. Swan v. Crafts, 124 
 Mass. 453. 
 
 1. The latter is the more usual way. 
 Burrill on Assignments, § 134. 
 
 2. An assignment of property described 
 as "one bundle of orders, one bundle of 
 fee-bills, two bundles of notes, two bun- 
 dles of accounts, and one of receipts," 
 ■was held void for uncertainty. Crow v. 
 Ruby, 5 Mo. 484. See also Ryerson v. 
 Eldred, 18 Mich. 12; Bellamy v. Bellamy, 
 6 Fla. 62. 
 
 Property may be assigned by general 
 terms, provided their application can 
 be made definite by parol evidence. 
 An assignment providing that all prop- 
 erty omitted by mistake or otherwise 
 intended to be assigned is valid. Clark 
 ■V. Few, 62 Ala. 243. See also Tarver v. 
 Rolfe, 7 Ala. 873; Brown v. Lyon, 17 
 Ala. 638; Coots v.. Chamberlain, 39 Mich. 
 565; Knefler v. Shreve, 78 Ky. 297; Cof- 
 fin V. Douglass, 61 Tex. 406; Nave v. 
 Britton, 61 Tex. 572; Walker v. Newlin, 
 22 Kan. 106; State v. Keeler, 49 Mo. 548. 
 
 An assignment for the benefit of cred- 
 itors recited that the grantor, being " de- 
 sirous that all his property be applied to 
 the payment of his debts," and then that 
 he "bargains, sells, aliens, conveys, and 
 assigns" to the assignee "his goods, 
 wares, etc., and assets of every descrip- 
 tion, it being intended to assign all his 
 property, both real and personal," except 
 legal exemptions, the real estate not being 
 referred to in terms anywhere in the deed 
 except as above. Held, that both real 
 and personal property passed by the deed, 
 and the same arrangements mutatis mu- 
 tandis as to the sale of both are made. 
 Wickham v. Green, 61 Miss. 463. 
 
 An assignment of cargoes of certain 
 vessels named, and real estate in Boston, 
 Charlestown, and Maine, was held suffi- 
 cient as furnishing the means of certainty. 
 Hatch V. Smith, 5 Mass. 42. 
 
 A description of "all the stock, fix- 
 tures, goods, and chattels of every name 
 and kind," in a designated store, is spe- 
 cific enough to identify the property in- 
 tended to be covered. Shaw v. Glen, 37 
 N. J. Eq. 32. 
 
 Where the assignment referred to a 
 schedule which was not in fact annexed 
 till the day after delivery, it was held 
 valid, as th« parties consented. Clap v. 
 
 I C. of L.— 56 
 
 865 
 
other Features 
 
 ASSIGNMENTS FOR 
 
 of the Deed. 
 
 Liabilities and contingent debts may be provided for,i but not 
 liabilities to be incurred in the future.* 
 
 These expenses must be paid even if 
 the deed does not provide for them. Blow 
 V. Gage, 44 111. 208; Sherrill v. Shuford, 6 
 Ired. Eq. (N. Car.) 228. 
 
 The compensation should not exceed 
 that of executors, etc., for similar ser- 
 vices. Bodley v. Goodrich, 7 How. (U. 
 S.) 276; Keteltas v. Wilson, 6 Barb. (N. 
 Y.) 298; Barney v. Griffin, 2 N. Y. 365; 
 Meacham v. Stevens, 9 Paige (N. Y.), 398; 
 Wynkoop v. Shardlow, 44 Barb. (N. Y.) 
 84; Campbell v. Woodworth, 24 N. Y. 
 204; Eyre w. Beebe, 28 How. (N. Y.)333. 
 
 (2) To pay the debts. When the debts 
 are few they may be stated in the decla- 
 ration of trust; otherwise in the schedule. 
 Burrill on Assignments, § 146. 
 
 An assignment may be invalid for un- 
 certainty in this respect. Caton v. Mose- 
 ley, 25 Tex. 374. 
 
 Parol evidence is admissible to identify 
 the debts referred to. Posey v. Bank, 
 12 Ala. 802; Piatt V. Hodge, 8 Iowa, 386. 
 
 If a debt is incorrectly described, the 
 creditor can identify and recover it unless 
 the fund is already exhausted. Allemand 
 »., Russell, 5 Ired. Eq. (N. Car.) 183. 
 
 If a debt is described as "about" a 
 certain sum, the creditor may prove a 
 greater amount. Brown v. Wier, 5 S. & 
 R. (Pa.) 40; Bank v. Richards, 2 Mete. 
 (Mass.) 105; Canaday v. Paschall, 3 Ired. 
 Eq. (N. Car.) 178. 
 
 So if there be olh^r error in the de- 
 scription. Miller v. Cherry, 3 Jones Eq. 
 (N. Car.) 24; Gardner v. Pike, 3 Jones 
 Eq. (N. Car.) 306. 
 
 But not to the prejudice of other cred- 
 itors. Miles V. Bacon, 4 J. J. Marsh. 
 (Ky.) 458. 
 
 Sometimes the creditors may be de- 
 scribed as a class, e.g. , laborers. Bank v. 
 Talcott, 22 Barb. (N. Y.) 550. , 
 
 Or the assignment may direct a notice 
 to creditors, and a payment to those who 
 present their claims at a certain time and 
 place. Ward v. Tingley, i Sand Ch. (N, 
 Y.) 476. 
 
 Secured debts may be provided for in 
 an assignment, in which case the security 
 will be first applied in discharge, and then 
 the unpaid balance, if any, will come in 
 for its share. Perry Ins. Co. v. Foster, 
 58 Ala. 502; Dimon v. Delmonico, 35 
 Barb. (Nl Y.) 554; Grant v. Chapman, 
 38 N. Y. 293. 
 
 The insertion of a fictitious debt, or 
 one in which the assignor is interested, 
 has been held to make the assignment 
 fraudulent and void. Terry v. Butler, 43 
 Barb. (N. Y.) 395; Jacobs v. Remsen, 36 
 
 N.Y. 668; Lockhart». Brodie,i Tenn. Ch. 
 384; Kayser v. Heavenrich, 5 Kan. 324, 
 
 But some courts have held such an as- 
 signment good as to the bona fide debts. 
 Tatum w. Hunter, 14 Ala. 57; Hempstead 
 V. Johnston, 18 Ark. 137; Mackintosh v. 
 Corner, 33 Md. 607; Hardcastle v. Fisher, 
 24 Mo. 75; Sewall v. Henry, 5 Gratt. 
 (Va.) 31; Harris v. De Graffenried, 11 
 Ired. L. (N. Car.) 89. 
 
 (3) To pay over the residue to the as- 
 signor, though this is unnecessary as 
 such a trust results by operation of law, 
 See ante, 7, p. 863. 
 
 To carry out these trusts a full power 
 of attorney should be given to tlie as- 
 signee. Burrill on Assignments. § 148. 
 
 The assignee's covenant accepting the 
 trust, and undertaking to execute it faith- 
 fully, is often inserted. Burrill on As- 
 signments, § 149. 
 
 But taking possession of the property 
 is sufficient to bind the assignee. Cun- 
 ningham V. Freeborn, 11 Wend. (N. Y.) 
 240. 
 
 1. "The assignment is just as valid a 
 security for liabilities to indorsers, etc.', 
 as for debts." Story, J., in Halsey v. 
 Whitney, 4 Mason (C. C), 206, 231. 
 
 Where the assignee was directed to 
 pay the indorsers the amount of certain 
 notes not yet due, this was held as of the 
 same effect as a direction in favor of the 
 holders of the" notes. Griffin v. Mar- 
 quardt, 21 N. Y. 121. See also Keteltas 
 V. Wilson, 36 Barb. (N. Y.), 298; s. c, 
 23 How. ( N. Y.), 69; Hendricks v. Rob- 
 inson, 2 Johns. Ch. (N. Y.), 283; Stod- 
 dard V. Tomlinson, 10 Ala. 824; Cope- 
 land V. Weld, 8 Me. 411; Duvall v. 
 Raisin, 7 Mo. 449. 
 
 Sureties, bail, and all persons who 
 have incurred responsibilities on the as- 
 signor's behalf can also be protected by 
 the assignment. Stevens v. Bell, 6 Mass. 
 339; Ingram v. Kirkpatrick, 6 Ired. Eq. 
 (N. Car.) 463; Loeschigk v. Jacobson, 
 26 How. (N. Y.) 526; Dickson v. Raw- 
 son, 5 Ohio St. 218; U. S. V. Hoyt, i 
 Blatchf. (U. S.) 332; Gushing v. Gore, 
 15 Mass. 69. 
 
 An assignment in favor of the sureties 
 for the assignor's faithful performance of 
 his duties as guardian has been held 
 valid. Hopkins v. Scott. 20 Ala. 179. 
 
 So with the sureties of a court clerk 
 and master in chancery. Dewey v. Little 
 John, 2 Ired. Eq. (N. Car.) 495. 
 
 Contra as to the sureties of a sheriff. 
 Currie v. Hart, 2 Sand. Ch, (N. Y.), 353, 
 
 2. Barnard v. Hempstead, 7 Paige 
 
other Features 
 
 BENEFIT OF CREDITORS. 
 
 of the Deed. 
 
 The time within, which creditors may assent is sometimes 
 limited in the assignment.^ 
 
 The time within which the trust is to be administered may also 
 be so limited,'-* but is usually left to the assignee's discretion.* 
 
 The mode and terms of sale are usually left to the assignee to 
 determine unless the statute requires a public sale.* The deci- 
 sions in regard to the assignor's right to authorize or direct sales 
 en credit have reached no uniform conclusion.^ 
 
 (N. Y.) 568 ; Brainerd v. Dunning, 10 N. 
 Y. 211; Neuffer v. Pardue, 3 Sneed 
 (Tenn.), igi." 
 
 The assignor's liability, at the time of 
 the assignment, must be ascertained and 
 fixed at a sum certain, whether payable 
 before or after the assignment, to entitle 
 the creditor to a. dividend. Hence a 
 claim for damages for breach of a con- 
 tract by the assignor, whereby claimant 
 \oit possible profits accruing after the 
 assignment, is not provable as a debt 
 against the assigned estate. Matter of 
 Adams, 15 Abb. N. C. (N. Y.) 61. 
 
 1. If the creditors are limited to a cer- 
 tain time within which to become parties 
 to the assignment or assent to it, the 
 limit must be reasonable. Green v. 
 Trieber. 3 Md. 11. 
 
 Whether it is so or not has to be de- 
 termined in each individual case. Halsey 
 V. Whitney, 4 Mas. (U. S.), 206, 225; 
 Pearpoint v. Graham, 4 Wash. C. C. 
 232; Fox V. Adams, 5 Greenl. (Me.) 245; 
 Hardin v. Osborne, 60 111. 93. 
 
 A debtor made an assignment in writ- 
 ing to trustees for the benefit of such 
 creditors as should execute the instru- 
 ment of assignment within sixty days 
 from the date thereof, or within such 
 further time as the trustees should allow 
 " in and by a writing " indorsed on the 
 instrument of assignment. Held, that 
 the term "a writing" did not limit the 
 trustees to the allowance of only one ex- 
 tension of the time in which creditors 
 could become parties to the extension. 
 Held, also, that if the trustees, through 
 inadvertence, did not indorse a renewal 
 of time before one extension had expired, 
 this did not render the granting of a sub- 
 sequent extension illegal, if it were rea- 
 sonable, under all the circumstances of 
 the case, that such extension should be 
 made. Bank v. Copeland, 141 Mass. 257. 
 
 In New Jersey creditors are limited 
 to three months by statute, but full 
 three months must be given them. An 
 order made on April 28, 1881, requiring 
 creditors to present their claims before 
 July 28, 1881, was held defective in 
 that it did not allow three months for 
 the presentation of creditors' claims.- 
 
 Held, also, that a creditor who did not put 
 in his claim within that time, but did so af- 
 terwards and before distribution, was not 
 barred, but was entitled to receive the 
 same dividends as all the other creditors 
 who had come in. Bank v. Morehead, 39 
 N. J. Eq. 493. 
 
 2. In Rundlett v. Dole, 10 N. H. 458, 
 it was said: "The provision that the 
 trustee shall execute the trust within the 
 term of two years . . . does not seem to 
 be unreasonable, and . . . was probably 
 intended to secure a benefit to the cred- 
 itors, instead of delaying and hindering 
 them." 
 
 In Christopher w. Covington, 2 B. 
 Mon. (Ky.) 375, three months' delay of 
 payment for the purpose of maturing a 
 crop and fattening stock, was held not to 
 be unreasonable. 
 
 In Adlum v. Yard, i Raw. (Pa.) 163, 
 an interval of three years before the sale 
 of real estate assigned was held unrea- 
 sonably long. 
 
 In Stevens ii. Bell, 6 Mass. 339, it was 
 said: " When no time is fixed for the 
 grantees to apply the proceeds and render 
 an account, the law requires them to ex- 
 ecute the trust in a reasonable time." 
 
 3. Sackett v. Mansfield, 26 111. 21. 
 
 4. Sackett v. Mansfield, 26 111. 21; 
 Shackelford v. Bank, 22 Ala. 238. 
 
 Sales under an assignment need not 
 always be made immediately and for 
 cash, whether well or ill for the creditors, 
 but this may be left to the discretion of 
 the trustee, and the assignment must not 
 confine him by unreasonable provision. 
 Inloes V. Bank, 11 Md. 173. 
 
 An authority to the trustees "to sell 
 gradually, in the manner or on the terms 
 in which in the course of their business 
 the assignors had sold and disposed of 
 their merchandise," was held to be an in- 
 definite postponement of the trust, and 
 void. Am. Exch. Bank, 7 Md. 390; s. c.,. 
 II Md. 184. 
 
 The obvious objection is the tendency 
 of such sales to hinder and delay credit- 
 ors. In New York it is now settled that 
 such a power, given to the assignee, in- 
 validates the assignment. 
 
 6. In Barney v. Griffin, 2 N. Y. 365, it 
 
 867 
 
Other reatures 
 
 ASSIGNMENTS FOR 
 
 of th? Deed. 
 
 The assignee is sometimes directed as to his mode of paying 
 claims.^ 
 
 Some special powers may be granted to the assignee.* 
 
 was said that the creditors "have the 
 right to determine for themselves whether 
 the property shall be sold on credit, and 
 a conveyance which takes away that 
 right, and places it in the hands of the 
 debtor, or in trustees of his own selec- 
 tion ... is a conveyance to hinder and 
 delay creditors and cannot stand." 
 
 In Nicholson v. Leavitt, 4 Sand. S. C. 
 (N. Y.) 252, it was held that a debtor 
 cannot, by the creation of a trust, avoid 
 the obligation of immediate payment, or 
 extend the period of credit, without the 
 assent of the creditor, and that a creditor 
 has no right to increase the surplus, or 
 the chance of a surplus, by resorting to a 
 sale on credit, thereby delaying his cred- 
 itors. See also Burdick v. Post, 6 N. Y. 
 522; Rapalee v. Stewart, 27 N. Y. 310; 
 ■Gates V. Andrews, 37 N. Y. 657. 
 
 The same principle has been held else- 
 ■where. Gardner v. Bank, 95 111. 298; 
 Sutton V. Hanford, 14 Mich, ig; Bennett 
 •V. Ellison, 23 Minn. 242; Paige z'. Olcott, 
 28 Vt. 469; Keep V. Saunderson, 12 Wis. 
 
 352- 
 
 But the contrary has been held m some 
 States. Abercrombie v. Bradford, 16 
 Ala. 560; Wright v. Thomas, i Fed. R. 
 716 (under the Indiana statute); Hopkins 
 V. Ray, I Met. (Ky.) 79; Farquharson v. 
 Eichelberger, 15 Md. 63; In re Walker, 
 18 Nat. Bankr. Reg. 56 (a Mississippi 
 case where credit was limited to thirty 
 days); Nealy v. Ambrose, 21 Pick. 
 (Mass.) 185; Johnson v. McAllister, 30 
 Mo. 327; Conkling v. Conrad, 6 O. St. 
 611; Gunnell v. Adams, 11 Humph. 
 (Ten'n.) 85; Eicks v. Copeland, 53 Tex. 
 581; Dance v. Seaman, II Gratt. (Va.) 
 778; Kyle V. Harveys, 25 W. Va. 716; 
 s. c, 52 Am. Rep. 235. 
 
 In Billings v. Billings, 2 Cal. 107, such 
 a power was held presumptive, though 
 not conclusive, evidence of fraud. 
 
 Where no power to sell on credit is ex- 
 pressly given, but it can be reasonably 
 implied from the words used, this also 
 has been held to invalidate the deed. 
 
 In Schufeldt v. Abernethy, 2 Duer 
 (N. Y.) 533, the words, "upon such terms 
 and conditions as in his judgment may 
 appear best and most for the interest of 
 the parties concerned," were held to have 
 this effect. 
 
 In Brigham v. Tillinghast, 15 Barb. 
 (N. Y.) 618; s. c, 13 N. Y. 215, a con- 
 version of the assets " into money or 
 available means " was directed. The 
 
 Court of Appeals, reversing the Su- 
 preme Court, held that a power to 
 sell on credit was necessarily implied, 
 and that this could not be allowed. See 
 also Hutchinson v. Lord, i Wis. 286; 
 McCleery v. Alien, 7 Neb. 21. 
 
 The same and similar phrases have, 
 however, been held not ^o involve a 
 power to sell on credit. Whitney v. 
 Krows, II Barb. (N. Y.) 198; Kellogg v. 
 Slauson, 15 Barb. (N. Y.) 56; Bellows v. 
 Patridge, 19 Barb. (N. Y.) 176; Mann v. 
 Whitbeck, 17 Barb. (N. Y.) 388; Towns- 
 end V. Stearns, 32 N. Y. 209; Paige v. 
 Olcott, 28 Vt. 465; Sackett v. Mansfield, 
 26 111. 21; Berry v. Hayden, 7 la. 469; 
 Booth V. McNair, 14 Mich. 19; Nye v. 
 Van Husan, 6 Mich. 329. 
 
 1. The Wisconsin statute (ch. 80, R. 
 S.) contemplates that all claims shall be 
 verified or proved before the assignee 
 shall pay them ; and an assignment which 
 restricts the assignee to the payment of 
 claims proved as provided in said ch. 80, 
 is not, therefore, invalid. Also a direc- 
 tion to the assignee to " make such pay- 
 ment or payments to the creditors of,the 
 party of the first part as shall from time 
 to time be directed to be made by the 
 circuit court or the judge thereof, as pro- 
 vided by law," does not prohibit him from 
 making other payments when not so or- 
 dered, if, under the law, he may make 
 such other payments; and such direction 
 does not, therefore, invalidate the assign- 
 ment. Bank v. Hackett, 61 Wis. 335. 
 
 2. A power to mortgage is void in New 
 York under the statute of uses and trusts, 
 but does not invalidate the assignment. 
 Darling v. Rogers, 22 Wend. (N. Y.)483; 
 Planck V. Schermerhorn, 3 Barb. Ch. (N. 
 Y.) 646. 
 
 Such a power has been upheld by some 
 courts. Montgomery v. Galbraith, 11 
 Sm. & M; (Miss.) 555; Beatty w. Davis, 
 9 Gill (Md.), 211. 
 
 The assignee may be authorized, to in- 
 sure the property, and to pay interest on 
 incumbrances. Whitney v. Kfows, 11 
 Barb. 198. 
 
 Also to pay rents and faxes. Van Dine 
 V. Willett, 3 Barb. 319; Eyre v, Beebe, 
 28 How. (N. Y.) 333. 
 
 Also to employ agents. Hennessey v. 
 Bank, 6 W. & S. (Pa.) 300; Casey v. 
 Jones, 37 N. Y. 608; Langdon v. Thomp- 
 son, 25 Minn. 509. 
 
 If the deed of assignment gives a power 
 to compromise with creditors, liinited only 
 
 868 
 
Fraudulent 
 
 BENEFIT OF CREDITORS. 
 
 ABsignments. 
 
 9. Fraudulent Assignments. — If one or more provisions in an as- 
 signment indicate an intent to delay, hinder, or defraud creditors, 
 the whole instrument,^ and not merely the obnoxious part, is void 
 as to those creditors who do not consent to it.** It remains valid, 
 however, as against the assignor and his representatives.* 
 
 The fraud must have entered into the assignment at the time 
 it was made. No subsequent acts of the parties can invalidate 
 an assignment made bona fide.'*' 
 
 by the assignee's judgment, this usually 
 renders the assignment void. Grover v. 
 Wakeman, n Wend. (N. Y.) 187; Hud- 
 son V. Maze, 4 111. 578; Keevil v. Don- 
 aldson, 20 Kan. 165. 
 
 But authority to compromise with 
 debtors has been sustained. Bellows v. 
 Patridge, 19 Barb. (N. Y.) 176; Carlton 
 ■V. Baldwin, 22 Tex. 724. 
 
 Such a power, to be exercised under 
 authority of the court, is given to assignees 
 by statute in some States. 
 
 A provision that the assignee may, as 
 part of the expenses, pay necessary at- 
 torney's fees, does not invalidate the as- 
 signment; but it is otherwise if the fees 
 are directed to be 'paid for defeating an 
 attachment, as that is the debt of the as- 
 signor. Wooldridge v. Irving, 23 Fed. 
 R. 676. 
 
 A permission to the assignee to com- 
 plete unfinished buildings, if advisable, 
 and pay "all necessary charges and ex- 
 penses for such completion, prior to the 
 payment of all debts and liabilities here- 
 inljefore mentioned," gives no additional 
 right beyond what the law gives in all 
 cases of trusts. Watson v. Butcher, 37 
 Hun (N. Y.), 391. 
 
 1. Wakernan v. Grover, 4 Paige (N. 
 Y.), 22; s. c, II Wend. (N. Y.) 187; Hy- 
 slop V. Clarke, 14 Johns. (N. Y.) 458; 
 Fiedler v. Day, 2 Sand. (N. Y.) 594; 
 Mackey v. Cairns, 5 Cow. (N. Y.) 547; 
 O'Neil V. Salmon, 25 How. (N. Y.) 240; 
 Cook V. Rindskopf, 34 Hun (N. Y.). 457. 
 
 " If the assignor annex an improper 
 condition, the court must pronounce the 
 assignment itself void. It cannot hold 
 the transfer good and disregard the con- 
 dition, because that would be to take the 
 property from the assignor against his 
 will. He having consented to part with 
 his title only on certain conditions, the 
 transfer and the condition must stand or 
 fall together." Selden, J., in Jessup v. 
 Hulse, 21 N. Y. 168. 
 
 2. Smith V. Howard, 20 How. (N. Y.) 
 121. 
 
 If the assignment by a debtor for the 
 benefit of certain of bis creditors is made 
 for the purpose of defrauding certain 
 other of his creditors, it will be void as 
 
 to the latter; and the fact that the county 
 court has assumed jurisdiction of the 
 subject-matter of the assignment, and 
 appointed new assignees, will not prevent 
 creditors so attempted to be defrauded 
 from attacking the deed for fraud, in a 
 collateral proceeding, when it is sought 
 by it to withdraw property attached by 
 them, and place the same in the hands of 
 the assignees appointed by the court. 
 Zimmerman v. Willard, 114 111. 364. 
 
 A deed of assignment may be valid as 
 to bona fide debts which it secures, and 
 void as to fictitious debts attempted to be 
 secured. Bank v. Hofheimmer, 23 Fed. 
 R. 13 (Virginia); Billupsw. Sears, 5 Gratt. 
 (Va.) 31; Harris v. De Grafienreid, 11 
 Ired. L. (N. Car.) 8g; Anderson v. Hooks, 
 9 Ala. 704; Troustine v. Lask, 4 Baxt. 
 (Tenn.) 162. 
 
 3. Osborne v. Moss, 7 Johns. (N. Y.) 
 161; Storms V. Davenport, 1 Sand. Ch. 
 (N.Y.)335; Morrison w. Brand, 5 Daly(N. 
 Y.), 40; Ogden v. Prentice, 33 Barb. (N. 
 Y.) 160; Sweet v. Tinslar, 52 Barb. 
 (N. Y.) 271; Stewart v. Ackley, 52 Barb. 
 (N. Y.) 283; Waterbury v. Westervelt, g 
 N. Y. 605. 
 
 4. Browning v. Hart, 6 Barb. (N. Y.) , 
 91. 
 
 Where a valid assignment is made for 
 the benefit of creditors, no fraudulent act 
 of the assignor after the taking eiifect of 
 such assignment will vitiate it. Nor will 
 a failure on the part of the assignee to 
 account for money or property of the as- 
 signed estate have that effect. Sullivan 
 V. Smith, 15 Neb. 476. 
 
 An assignment for benefit of creditors, 
 free from fraud in its inception, duly ex- 
 ecuted, acknowledged and recorded, is 
 not invalidated by a subsequent agree- 
 ment between the assignor and assignee 
 to disregard it; or by subsequeQt fraudu- 
 lent acts on their part with respect to the 
 assigned property. But the conduct of 
 the assignor and assignee subsequent to 
 the assignment, is a matter for the con- 
 sideration of the jury in determining 
 whether the assignment was fraudulent 
 in Its inception. Goodwin v. Kew, 80 
 Mo. 276. 
 
 In like manner no subsequent act can 
 
 869 
 
FrEindulent 
 
 ASSIGNMENTS FOR 
 
 The fraud may be evidenced by the instrument itself. If it is 
 clearly calculated to hinder, delay, or defraud creditors, the infer- 
 ence that it was so intended is irresistible. ^ 
 
 The fraud may also be evidenced by false statements in the 
 assignment or schedules,** or by the acts of the parties.^ 
 
 validate a void assignment. Averill v. 
 LSuclcs, 6 Barb. (N. Y.) 470. 
 
 1. Tlie chief features of an assign- 
 ment wiiich render it fraudulent, e.g., 
 preferences, stipulations for releases, 
 preferences conditioned on releases, 
 reservations of right to declare future 
 preferences, of trusts for the assignor, of 
 benefits out of the property, directions 
 as to time or mode of sale, have already 
 been noticed. 
 
 See ante, 6, 7, 8, pp. 860, 863, 864. A 
 few examples may be added: 
 
 The statute of Arkansas regulating as- 
 signments for the benefit of creditors 
 prohibits the assignee from taking pos- 
 session of the assigned property until he 
 gives bond and files an inventory of the 
 property; and a deed of assignment that 
 stipulates that the assignee shall take 
 possession of the property before he gives 
 the bond and files the inventory, as re- 
 quired by the statute, is void. No inquiry 
 is permissible to show that no fraud was 
 intended, or that the statute was violated 
 for an honest purpose. The statute also 
 provides that the assignee " shall give at 
 least thirty days' notice" of the sale of 
 assigned property, and a deed that pro- 
 vides for a sale upon " twenty days' no- 
 tice" is void. Rice v. Frayser, 24 Fed. 
 R. 460. 
 
 It is well settled that a. conveyance 
 professedly to indemnify creditors, but 
 expressly or impliedly reserving to 
 the grantor powers inconsistent with 
 and adequate to defeat such purpose, is 
 void as to creditors and purchasers. 
 Where conveyance is made of stock and 
 fixtures of a store, in trust to secure debt 
 payable in futuro, without right to trus- 
 tee to possess or control the property, 
 except in event of default of payment, 
 then, on request of c. q. t., trustee to sell 
 the same, such conveyance impliedly re- 
 serves to grantor the power to possess 
 and sell the property; and if he sells, 
 then, as to the purchaser, and creditors 
 of that purchaser, that conveyance is void 
 although it may have been recorded, its 
 record being only notice of a void thing. 
 McCormick v. Atkinson, 78 Va. 8. 
 
 An assignment providing for " a rea- 
 sonable counsel-fee" to the assignee, a 
 lawyer, besides his expenses and com- 
 missions, is fraudulent. Nichols v. Mc- 
 Ewen, 17 N. Y. 22. 
 
 The provision in an assignment that 
 the assignee "shall first pay the costs of 
 executing this trust, including two hun- 
 dred and fifty dollars to M., my attorney, 
 and two hundred dollars to W. & W., at- 
 torneys," is of doubtful meaning, but, 
 as such doubt must be construed in favor 
 of the validity of the assignment, it does 
 not render tlie same fraudulent upon its 
 face. Armitage v. Rector, 62 Miss. 600. 
 
 An assignment for the betiefit of credi- 
 tors which provides for the sale of choses 
 in action is not fraudulent and void on 
 that account if adequate time is allowed 
 for the collection by ordinary process of 
 law. Wickham v. Green, 61 Miss. 463. 
 
 An assignment by an insolvent debtor 
 for the benefit of his creditors, which di- 
 rects that the assignee shall collect the 
 choses in action as fast as practicable, 
 and, after the expiration of twelve months 
 shall sell all remaining uncollected and 
 being uncoUectable at public auction, is 
 viotper se fraudulent, on the ground that 
 it illegally impresses the will of the debtor 
 upon the trust created. Armitage v. 
 Rector, 62 Miss. 5ob. 
 
 The failure in such a deed to give a full 
 statement of the property conveyed, a 
 list of the creditors of the assignor, and 
 the amount of their demands, would only 
 invalidate the assignment when done with 
 a fraudulent intent. Nave v. Britton, 61 
 Tex. 572. 
 
 A provision authorizing the assignee to 
 employ suitable agents at a reasonable 
 compensation, to be paid out of the effects 
 assigned, and to do whatever his judg- 
 ment dictates for the benefit of the estate, 
 is not fraudulent. Mann v. Whitbeck, 17 
 Barb. (N. Y.) 388; Jacobs v. Remsen, 36 
 N. Y. 668; Casey v. Jones, 37 N. Y. 608. 
 
 2. The recitals in the assignment are 
 only prima-facie evidence. 
 
 In a contest between an attaching cred- 
 itor and the trustee in an assignment for 
 the benefit of creditors, there being no 
 proof of actual fraud in the execution of 
 the assignment, and the debt of the at- 
 taching creditor not then being in ex- 
 istence, the recitals of the assignment, as 
 to the existence of debts, are sufficient to 
 sustain it; but, if the debt of the attach- 
 ing creditor was antecedent and existing, 
 the existence of debts must be shown by 
 the assignee by evidence other than the 
 recitals of the assignment" and the exist- 
 
 870 
 
Effect. 
 
 BENEFIT OF CREDITORS. 
 
 Effect. 
 
 10. Effect. — Thb effect of a valid assignment is to vest the assigned 
 «state in the assignee, so as to put it out of the reach of creditors* 
 not secured by liens,^ and even of the assignor himself.® 
 
 •ence of other debts than that of the at- 
 taching creditor must be proved. Rey- 
 nolds V. Collins, 78 Ala. 94. 
 
 In Batten v. Smith, 62 Wis. 92, it was 
 held that the omission from the schedule 
 ■of property fraudulently transferred does 
 not invalidate the assignment under sec. 
 1697, R. S. As against the aissignor 
 
 . {though not as against the assignee) the 
 title would pass by the transfer and he 
 would have no power to assign such prop- 
 erty and hence no right to include it in 
 the inventory. 
 
 3. Under the Arkansas statute, if the 
 
 , parties to a deed of assignment for the ben- 
 efit of creditors agree at the time of the 
 execution of the deed, that the possession 
 ■of the property assigned shall be delivered 
 to the assignee before he has given the 
 bond and filed the inventory required by 
 
 ; law, and that agreement is carried into 
 effect, it avoids the deed, and is good 
 
 - :ground for an attachmen t against the debt- 
 or. Aaronson v. Deutsch, 20 Fed. R. 
 
 465. 
 
 Where a debtor sold all his property 
 to his brother, a young man without ex- 
 perience or resources, on a year's credit, 
 and afterwards made an assignment with 
 preferences, the sale and assignment were 
 held one transaction, and fraudulent. 
 Litchfield v. Pelton, 6 Barb, (N. Y.) 187. 
 
 In Browning v. Hart, 6 Barb. (N. Y.) 
 .^I, a somewhat similar case, the sale 
 was declared void, but the assignment 
 ■sustained. 
 
 In Batten v. Smith, 62 Wis. 92, it was 
 held that fraudulent transfers of property 
 by a debtor just previous to a general as- 
 ■signment do not avoid such an assign- 
 ment, but are themselves avoidable under 
 it. 
 
 Declarations of the assignor, before or 
 .after the assignment was made and the 
 assignee had taken possession, are inad- 
 missible to show intent to defraud. Flag- 
 .ler V. Schaeffer, 40 Hun (N. Y.), 179; 
 Bullis V. Montgomery, 50 N. Y. 352, 
 
 The mere fact that some of the debts 
 preferred had previously been secured by 
 mortgage on the real estate of the as- 
 •signor's wife, does not conclusively show 
 fraudulent intent in such preference. 
 Bates V. Simmons, 62 Wis. 69. 
 
 Where one mortgaged certain of his 
 property, and three hours afterwards 
 made an assignment for the benefit of 
 •his creditors, but it was conceded that the 
 assignor, at the time he made the mort- 
 
 gage, did not contemplate making an as- 
 signment, the assignment was not held 
 to be void as including the mortgage, 
 and thus preferring creditors. Perry v, 
 Vezina, 63 Iowa, 25. 
 
 Retention of possession of personal 
 property by the assignor after assignment 
 for benefit of creditors, is not ^^rjf fraud- 
 ulent, and does not render the assign- 
 ment void. Goodwin v. Kerr, 80 Mo, 
 276. 
 
 The mere fact that after the assignment 
 the assignor remained in the store as an 
 employee under the supervision of the as- 
 signee, is not conclusive evidence of fraud 
 in making the assignment. Bates v. Sim- 
 mons, 62 Wis. 69. 
 
 If an assignee delay unreasonably to 
 sell the property assigned, this may be 
 evidence of fraud, and the property may 
 be attached or taken in execution as the 
 debtor's. Gore v. Clisby, 8 Pick. (Mass.) 
 559- 
 
 4. Delivery and record of the instru- 
 ment render actual delivery of possession 
 unnecessary to the validity of the instru- 
 ment. State V. Benoist, 37 Mo. 500. 
 
 The legal title to all the property of 
 the debtor, and its proceeds, remains in 
 the assignee, where the deed of assign- 
 ment vested it, until it be judicially dis- 
 posed of, and cannot during that time be 
 seized as the property of the assignor. 
 Garretson v. Brown, 26, N. J. L. 425. 
 
 When the property passes under the 
 statute by the assignment, no provision 
 inserted in the deed regarding consent- 
 ing creditors can interfere with the dis- 
 tribution of the estate, nor can the rights 
 of creditors protected by it be destroyed 
 by attachments or other process in a suit 
 by dissatisfied creditors. Keating v. 
 Vaughn, 61 Tex. 518. 
 
 A technical informality in the assign- 
 ment is not necessarily an obstacle to 
 the grantee's appropriating the property 
 as directed in the deed. Harvey v. Mix, 
 24 Conn. 406. 
 
 5. An assignee is not a purchaser for 
 value who will be protected against an 
 execution not levied of which he had no 
 notice. Moses v. Thomas, 26 N. J. L. 
 124; Van Wagoner v. Moses, 26 N. J. L. 
 570. 
 
 6. After the execution and delivery of 
 the instrument the assignor has no pow- 
 er to alter or amend its terms or provi- 
 sions. Messonier v. Kauman, 3 John. 
 Ch. (N. Y.) 3; Bell v. Holford, i Duer 
 
 871 
 
Effect. 
 
 ASSIGNMENTS FOR 
 
 Effect 
 
 It also places the property under the jurisdiction of the court to- 
 which the statute gives such jurisdiction. ^ 
 
 parties.because no creditor had, by attach-, 
 ment or levy before the second, acquired 
 the right to raise the question of statutory 
 irregularity, still the first could not oper- 
 ate as a general assignment without pref- 
 erences as claimed, but the distribution 
 must be by the second, for it contained 
 the designation of the cestuis que irustenf 
 which the assignor had a right to make 
 by reason of the power reserved in the- 
 first instrument. Noyes v. Wernberg, 15. 
 Abb. N. C. (N. Y.) 164. 
 
 1. Under the Minnesota statute, upon 
 the perfecting' of such assignment, its en- 
 tire subject-matter and everything in- 
 volved in it, including the assigned prop- 
 erty, come under the jurisdiction of the 
 district court,' ipso facto, and without the 
 institution of any suit or proceeding. By 
 consequence the assigned property is then 
 in custodia legis. In re Mann, 32 Minn. 
 60. 
 
 Under the several provisions of the 
 Illinois act of May 22, 1877, a new and 
 special jurisdiction is conferred upon 
 county courts over the subject-matter of 
 such assignments, the exercise of which 
 cannot be interfered with or embarrassed 
 by process from other courts. Such ju- 
 risdiction attaches by the making, filing, 
 and recording of the assignment in the- 
 mode prescrit^ed in the act. 
 
 Under that act the county court, when 
 exercising the powers therein conferred, 
 is in effect an insolvency court, and the- 
 same general principles applicable to- 
 such courts must be applied. 
 
 After the county court has once ac- 
 quired jurisdiction of the estate of an 
 assigning debtor, he and the assignee, 
 and all other persons having an interest 
 in or upon the estate, are subject alike to 
 the judgment of that court; and a claim- 
 ant of any property assigned for the ben- 
 efit of creditors will not be allowed to 
 take the same from the assignee by wjit 
 of replevin from another court, but he 
 may present his claims to the county 
 court, which is authorized to call a jury to- 
 try the right of property. Hanchett v. 
 Waterbury, 115 111. 220. 
 
 Under the New York General Assign- 
 ment Act of 1877, the county courts act 
 as courts of general jurisdiction in re- 
 spect of the assigned estate and any mat- 
 ter involved therein. They have the- 
 powers of a court of equity. /;« re Bon- 
 ner, 8 Daly (N. Y.) 75; In re Nicholas, 
 i5Hun(N. Y.), 317. 
 
 By the same act the jurisdiction in the 
 city of New York is vested in the Court 
 72 
 
 (N. Y.). 58; Metcalf v. Van Brunt, 37 
 Barb. (N. Y.) 621. 
 
 Where a note made after the assign- 
 ment was antedated in order to be em- 
 braced in the schedule of preferred debts, 
 it was held that the effect of the assign- 
 ment could not be varied by any such 
 means. Sheldon v. Smith, 28 Barb. (N. 
 
 Y.) 593- 
 
 An assignment which is wholly invalid 
 passes no title to the property, so that a 
 subsequent conveyance by the assignor is 
 good. Juliand v. Rathbone, 39 N. Y. 
 
 369. 
 
 It has, however, been held that where 
 an assignment required the assignee to 
 return the surplus after paying certain 
 creditors named, without providing for 
 the others, tlie lien of the plaintiff's judg- 
 ment could not be effected by a subse- 
 quent assignment providing for the gen- 
 eral creditors, as the first assignment be- 
 ing valid against the assignor, he coiild 
 not alt^r it nor show that it was made 
 under a mistake. Sutherland, j/. Bradner. 
 39 Hun (N. Y.), 134. 
 
 Similarly, where the assignment was 
 void on account of a direction to sell on 
 credit, a new one directing sales for cash 
 could not be substituted after liens had 
 attached. Porter v. Williams, 9 N. Y. 
 142. 
 
 Buf where the assignment is voidable, 
 not void, and no liens have attached, it 
 has been held that the property may be 
 released and a new assignment executed. 
 Howe V. Woolsey, 2 Edw. Ch. (N. Y.) 
 289; Mills V. Argall, 6 Paige (N. Y.), 577; 
 Whitcomb v. Fowle, 7 Abb. N. C. ^N.Y.) 
 295. 
 
 An assignment does not lose its legal 
 validity simply because the parties choose 
 to treat it as a nullity. In re Becker, 2 
 Abb. N. C. (N. Y.) 379. 
 
 A cancellation of the instrument does 
 not revest the title in the assignor. Met- 
 calf V. Van Brunt, 37 Barb. (N. Y.) 
 621. 
 
 Where an assignment is accepted by the 
 assignee he cannot, by surrendering or 
 cancelling the deed, destroy the trust or 
 effect the rights of the creditors Interested 
 therein, nor can the assignee revoke it. 
 Scull V. Reeves, 3 N. J. Eq. 84. 
 
 An assignment preferring debts enum- 
 erated in a schedule which was never 
 filed, was void under the statute as lack- 
 ing the assignee's assent. Subsequently 
 an assignment with preferences was made 
 and recorded. Held, that assuming the 
 first to be valid at common law as to all 
 
 8' 
 
Effeot. 
 
 BENEFIT OF CREDITORS. 
 
 Effect, 
 
 A voluntary assignment passes personalty in another State as 
 effectually as if made in that State. ^ 
 
 An assignment does not in any way exempt the property from 
 taxation.* 
 
 of Common Pleas. See Bishop on In- 
 solvent Debtors, § 249. 
 
 A court of equity can reform an assign- 
 ment upon proof of mistake, and peti- 
 tions for a reformation and an account 
 may be united. Garner v. Wright, 28 
 How. (N. Y.) 92. 
 
 1. "A voluntary assignment by a 
 party, made according to the laws of his 
 domicile, will pass the personal estate, 
 whatever may be its locality, abroad 
 as well as at home. The law distin- 
 guishes that which results from the exer- 
 cise of power under the law from that 
 which comes by the free will of the party; 
 the former is limited in its effect to the 
 country where the law is in force, whilst 
 the latter is given universal and general 
 operation under the comity of nations. " 
 Smith's App., 104 Pa. St. 381. It was also 
 there said that " if the owner of personal 
 estate in Pennsylvania may, at the place 
 of his domicile in a foreign State, bona fide 
 and for a valuable consideration dispose 
 of the same, receiving and placing the 
 consideration within his own control, and 
 this he may undoubtedly do, he may 
 certainly with like effect convey his 
 estate to the benefit of his creditors here 
 and elsewhere," and it was held that an 
 assignment made in Maryland withdrew 
 personalty in Pennsylvania from liability 
 to seizure for debts existing there, and 
 that claims on the property were barred 
 after the statute of limitations had run in 
 Maryland, though it had not run in Penn- 
 sylvania. See also Speed v. May, 57 
 Pa. St. 9t; Dundas v. Bowler, 3 McL. 
 (U. S.) 397; Livermore v. Jenckes, 21 
 (U. S.) How. 126. 
 
 But in Faulkner v. Hyman, 142 Mass. 
 53, it was held that an assignment of 
 property, executed in another\State, by a 
 debtor domiciled there, for the benefit of 
 his creditors, which is valid by the law of 
 that State, but is invalid by the law of 
 Massachusetts, because not executed or 
 assented to by the creditors, will not be 
 upheld there, as against attaching cred- 
 itors of the assignor constituting a part- 
 nership, although some of such creditors 
 are domiciled in the State where the as- 
 signment was executed, and where the 
 firm has a. place of bu§iness, and some 
 in another State, the others being domi- 
 ciled and the firm having its usual place 
 of business in Massachusetts. 
 
 By the Pennsylvania statute such an 
 assignment does not affect liens ficquired 
 before the assignment was recorded in 
 the State, unless the creditor had notice. 
 I Purd. Dig. 122, pi. 14; Smith's App., 
 104 Pa. St. 381. 
 
 2. In Jack v. Weiennett, 115 111. 105, 
 it was said that if the insolvent laws could 
 be held to have the effect of releasing 
 either persons or property from taxation, 
 to that extent they would be unconstitu- 
 tional, as the constitution denies the 
 power of the legislature to release any 
 person or property from his or its share 
 of taxes levied for State purposes. 
 
 It was therefore held that if an insol- 
 vent debtor makes an assignment of his 
 property for the benefit of his creditors, 
 even before the tax books are placed in 
 the hands of the collector, the State will 
 still have the right to subject the prop- 
 erty assigned for the payment of any 
 taxes due from the assignor; and when 
 the property assigned consists of notes 
 and choses in action, the collector, on 
 proper petition to the county court, will 
 be entitled to an order of that court di- 
 recting the assignee to first pay the taxes 
 of the assignor out of the trust fund. 
 
 If, however, property assigned for the 
 benefit of creditors is sold in good faith 
 to a purchaser before the tax books come 
 to the hands of the collector, so that no 
 lien has as yet attached, the purchaser 
 will take free of any lien for taxes. But 
 tangible property in the hands of the 
 assignee after the collector receives his 
 warrant is subject to distress and sale 
 by the collector as if in the hands of 
 the assignor. 
 
 In Huiscamp v. Albert, 60 Iowa, 421, 
 an assignment was made for the benefit 
 of creditors, and the assignee was after- 
 wards appointed a receiver to convert 
 the property into money and hold the 
 same subject to the order of the court. 
 It was held proper for the court in order- 
 ing a distribution of the money, upon 
 the intervention of the county, to order 
 the receiver, after providing, possibly, 
 for the expenses of the trial, to pay the 
 taxes levied under the laws of this State 
 against the insolvent debtor, in preference 
 to other claims, notwithstanding no levy 
 of the taxes had been made on the goods, 
 and no claim had been filed for the taxes 
 against the assignee. 
 
 873 
 
Bights and Duties 
 
 ASSIGNMENTS FOR 
 
 of the Assignee. 
 
 The resignation, removal, or death of the assignee will not 
 affect the assignment.* 
 
 A successful attack by creditors upon an assignment does not 
 enlarge its operation as to those who claim under it.'-* 
 
 The effect of a general assignment by partners is that firm 
 property is to be used first to pay firm debts, and individual 
 . property first to pay individual debts.' 
 
 Distribution of the assigned estate under a decree of the court, 
 and absolute discharge of the assignee after accounting, is -a com- 
 plete defence to a subsequent action by a judgment creditor to 
 set aside the assignment as fraudulent.* 
 
 11. Bights, Duties, Powers, and Eesponsibilities of the Assignee. — 
 A valid assignment accepted by the assignee,^ vests the property 
 in him, but before he can proceed to carry out the trust he must 
 give a bond,® with sufficient surety, approved by a judge of a court 
 having jurisdiction of the assignment, for the faithful performance 
 
 1. In McFerran v. Davis, 70 Ga. 661, 
 it was held that the resignation of the 
 assignee was not a revocation of the 
 deed of assignment. The title having 
 passed into him, the trust should not be 
 allowed to fail for the want of a trustee. 
 
 2. Bankz/. Hofheimer, 23 Fed. Rep. 13. 
 
 3. Friend v. Michaelis, 15 Abb. N. C. 
 (N. Y.) 354; Peckham v. Mattison, 15 
 Abb. N. C. (N. Y.) 367. 
 
 A general recital in the assignment, 
 that it is the purpose and intention of the 
 grantor to appropriate the property as- 
 signed to the payment of partnership and 
 individual debts as a court of equity 
 would marshal the assets, does not au- 
 thorize the court, at the instance of a 
 secured creditor, to change or subvert 
 the uses expressly declared, and to 
 appropriate property to the payment of 
 partnership debts, on the ground that it 
 is in fact partnership property, when the 
 deed treats it as individual property, and 
 directs its appropriation first to the pay- 
 ment of individual debts. Hatchett v. 
 Blanton, 72 Ala. 423. 
 
 4. McLean v. Prentice, 34 Hun (N. 
 Y.), 504. 
 
 5. See ante, 5, p. 855. 
 
 6. Before giving the required bond, 
 the assignee has only an inchoate right 
 to the property, but cannot dispose of it. 
 Van Hein v. Elkers, 8 Hun (N. Y.), 516; 
 Woodworth v. Seymour, 22 Hun (N. Y.), 
 376; Brennan v. Wilson, 4 Abb. N. C. 
 (N. Y.) 279; Rendleman v. Willard, 15 
 Mo. App. 375. 
 
 A bond with a single surety is not void 
 in Pennsylvania. Mears ». Common- 
 wealth, 8 Watts (Pa.) 223. 
 
 If the assignee fail to give a bond, he 
 cannot resign and be discharged on his 
 own motion. The court should remove 
 
 him and hold him to account for the 
 estate. In re Parker, 10 Daly (N. Y.), 16. 
 
 In Wisconsin the failure of the as- 
 signees to give bond in an amount not 
 less than the nominal value of the assets 
 ascertained in the manner provided by 
 sec. 1694, R. S., before taking possession 
 of the property and before assuming any 
 trust conferred by the assignment, ren- 
 ders the assignment absolutely void. The 
 statute is mandatory, and must be strictly 
 pursued. Goll v. flubbeil, 61 Wis. 293. 
 
 The bond of an assignee running to 
 "A. E. R., clerk of the circuit court," 
 etc., is in substantial compliance with 
 sec. 1694, R. S. of Wisconsin, requiring 
 it to be "executed to the clerk of the 
 circuit court of the county, by his name 
 of office, as obligee." The omission of 
 the word "as" before "clerk" is imma- 
 terial. Bates V. Simmons, 62 Wis. 69. 
 
 Under the Minnesota statute, where 
 no inventory has been filed, and there 
 has been no formal and express accept- 
 ance by the assignee before and inde- 
 pendent of the filing of his bond, and 
 before the expiration of fifteen days from 
 the date of the assignment, of the trust 
 thereby created, the assignee must file 
 his bond within said period of fifteen 
 days. Perkins v. Zarracher, 32 Minn. 71. 
 
 The failure of the assignee to give bond 
 will not invalidate a deed of assignment 
 properly made, or justify an attachment 
 of the property transferred. The remedy 
 of the creditors is to apply for the 
 appointment of another to discharge the 
 trust. Windham v. Patty, 62 Tex. 490. 
 
 An action on the bond, on account of 
 non-payment of money in the assignee's 
 hands, sounds in damages, the measure 
 being the demand allowed, with interest. 
 State V. Hart, 38 Mo. 44. 
 
 874 
 
Bights and Duties BENEFIT OF CREDITORS. tA the Assignee. 
 
 of the trust. In some States he must take an oath to perform his 
 duties to the best of his ability.^ He must also file a sworn 
 inventory of all the property that has come ipto his hands.'-* 
 
 The assignee has power to take into his hands all the estate of 
 the assignor, whether delivered to him or afterwards discovered,* 
 and to that end to sue in his own name, or otherwise, and recover 
 all property, claims, and things in action to the same effect as if 
 sued for by the assignor if no assignment had been made.* 
 
 1. This is the law in New York. 3 
 Rev. Stats. (7th Ed.) 2266, § 5. 
 
 Taking the oath is a prerequisite to 
 the complete vesting of title in the as- 
 signee. If he has entered upon the dis- 
 charge of his duties, but not otherwise, 
 the presumption is that he took the oa[h. 
 Hoag V. Hoag, 35 N. Y. 469; Rockwell 
 ■V. Brown, 42 How. Pr. (N. Y.) 226. 
 
 2. By the New York statute the in- 
 ventory, both of assets and liabilities, 
 should be made by the assignor within 
 twenty days after the assignment. If he 
 fail to do this, the assignee shall make 
 it within thirty days from the date of the 
 assignment. Bishop on Insolvent Debt- 
 ors, §§ 252-262. 
 
 By the Pennsylvania statute the as- 
 signee must, within thirty days after the 
 execution of the assignment, file a sworn 
 inventory in the office of the prothonotary 
 of the court of common pleas of the 
 county of the assignor's residence. I 
 Purd. Dig. 122, pi. 15; 'Reigart's App. 
 4 Pa. 479. 
 
 If an assignee files a bond as required 
 by law, but the inventory and appraise- 
 ment are sworn to by the appraisers and 
 not by the assignee, the inventory is 
 defective, but this is no ground for his 
 removal. Drain v. Mickle, 8 Iowa, 438. 
 
 3. It is necessary for the assignee to take 
 possession of the assigned estate, but so 
 far as the formal act of taking possession 
 is concerned, no stricter rule applies than 
 in case of ordinary purchase. A formal 
 delivery of the keys to storehouses, safe, 
 and shops, accompanied by a pointing 
 out and surrender of possession of stock 
 in pens, horses, harness, wagon, etc., in 
 barns, is sufficient. Sullivan v. Smith, 
 15 Neb. 476. 
 
 The right which an assignor for the 
 benefit of creditors has to discharge the 
 trusts, by payment of the debts before 
 sale by the assignee, and to declare to 
 whom the lands held in trust shall belong 
 upon its termination, and his right to 
 •grant' or devise the land subject to the 
 execution of the trust, are merely equita- 
 ble, and do not impair or diminish the 
 estate of the assignee, vVhich remains 
 'perfect and exclusive until the purposes 
 
 of the trust have in fact been accom- 
 plished. People, t'. Bacon, gg N. Y. 275. 
 
 4. An assignee cannot sue in the 
 federal courts if his assignor could not 
 have sued in those courts. Sere v. Pitol, 
 6 Cranch, 332. 
 
 In a suit by an assignee in a voluntary 
 assignment for the benefit of creditors, 
 for the recovery of a part of the trust 
 estate, he must allege that the deed of 
 assignment to him has been duly recorded 
 in the recorder's office of the proper 
 county, and must file a copy of such 
 deed as an exhibit; otherwise his com- 
 plaint must be held bad on demurrer for 
 the want of sufficient facts. Wheeler v. 
 Hawkins, loi Ind. 486. 
 
 An assignee can enforce payment of 
 promissory notes, by a bill in equity, 
 without indorsement or special assign- 
 ment to him. Lenox v. Roberts, 2 
 Wheat. (U. S.) 373. 
 
 Where an assignee recovers judgment, 
 a judgment recovered by the debtor on 
 a debt contracted after he had notice of 
 the assignment cannot be set off; but 
 otherwise if the claim had been acquired 
 before notice of the assignment. Bra- 
 shear V. West, 7 Pet. (U. S.i 608. 
 
 Where in a partial assignment, cover- 
 ing only a judgment for $2500, the 
 assignor covenanted to make up the 
 deficiency between the amount realized 
 by the judgment and $2500, and the 
 judgment yielded nothing, the assignee 
 recovered damages to the full amount in 
 an action of covenant against the as- 
 signor. Paschall v. Scott, 22 Ark. 255. 
 
 When an assignee takes possession of 
 the goods, he is taken to have accepted 
 the trust, and may bring suit in replevin 
 without filing an inventory or bond. 
 Price V. Parker, 11 Iowa, 144. 
 
 If an interest in an action is assigned 
 pendente lite, the fact of the assignment 
 must be established before the assignee 
 can proceed in the action. Moreover, if 
 the assignor has taken any proceedings 
 since the assignment, without the as- 
 signee's consent, they may be set aside. 
 Chisholm v. Clitherall, 12 Minn. 375. 
 
 Security for costs cannot be demanded 
 of an assignee who prosecutes a suit in 
 
 ■875 
 
lUghts and Duties 
 
 ASSIGNMENTS FOR 
 
 of the Assignee- 
 
 He can also defend, when necessary, any suits brought against 
 the estate. 1 
 
 But he cannot, without leave, of court, take the place of his 
 assignor as a defendant.'-* 
 
 Joint assignees constitute but one person in law, and must all 
 unite in bringing an action.* 
 
 An assignee cannot be compelled to fulfil the unperformed con- 
 tract of his assignor to deliver goods.* 
 
 An assignee is bound to convert the assigned property into 
 money and distribute it among the creditors without any unrea- 
 sonable delay.^ He has in general a discretion to sell at public or 
 private sale as he may deem best for the interests of the credi- 
 tors.* If he sell at public auction he should give the creditors 
 notice, so that they may attend and see that the property, is not 
 sacrificed.'' He should also give public notice.® He cannot pur- 
 chase at his own sale.* Pending an opportunity to sell, it is his 
 duty to keep down incumbrances on real estate.^" 
 
 the name of the assignor. Ferris v. Ins. 
 Co., 22 Wend. (N. Y.) 586. 
 
 An assignee for the benefit of creditors 
 cannot, as a general rule, appeal from a. 
 decree distributing the funds in his hands. 
 He is protected by the decree in paying 
 out money in accordance therewith. 
 Where, however, two separate firms, 
 named B. & C. and B. & D. respectively, 
 by one deed of assignment conveyed the 
 property belonging to said firms and to 
 the individual members thereof to A., for 
 the benefit of their creditors, and on the 
 audit of A.'s account as assignee of B. & 
 D., A., as assignee of B. & C, claimed 
 a portion of the fund for distribution, 
 ■which claim was disallowed. Held, that 
 A., as assignee of B. & C had the same 
 power as an ordinary creditor to except 
 to said disallowance, and on the dismissal 
 of his exception to appeal. Jordan's 
 App., 107 Pa. St. 75. 
 
 1. In a suit by a preferred creditor in 
 a deed of assignment against the assignee 
 for a debt due him from the assignor, it 
 is not error to refuse to allow the assignee 
 credit for fees of an attorney employed 
 by him as assignee, when he offers no 
 propf that the amount charged by said 
 attorney was a fair and reasonable charge 
 for the services perforrtied, or that the 
 services of said attorney were necessary 
 for the protection of the trust property, 
 and not caused by his own failure to 
 perform the trusts in the assignment. 
 Greeley v. Percival, 21 Fla. 535. 
 
 2. When an action has been properly 
 commenced against a debtor, and his 
 property seized on attachment therein, 
 and the debtor afterwards, before the 
 time to answer has expired, makes an 
 assignment for the benefit of all his 
 
 creditors in the manner provided by ch. 
 80, R. S. of Wisconsin, the assignee 
 cannot, without leave of court first ob- 
 tained, appear in such action and in his 
 own name answer in the main action or 
 traverse the affidavit for the attachment. 
 Howitt V. Blodgett, 61 Wis. 376. 
 
 An assignment by a debtor for the 
 benefit of his creditors is not a devolution 
 of his liability upon the assignee, within 
 the meaning of sec. 2801, R. S, of Wis- 
 consin, and gives such assignee no right 
 to be substituted as a defendant in an 
 action against such debtor. Howitt v. 
 Blodgett, 61 Wis. 376. 
 
 3. Thatcher v. Candee, 4 Abb. Dec. 
 (N. Y.) 387; Brinkerhoilf ■v. Wemple, I 
 Wend. (N. Y.) 470. 
 
 4. Matter of Adams, 15 Abb. N. C. 
 (N. Y.) 6i. 
 
 5. Hart v. Crane, 7 Paige (N. Y.), 37; 
 Meachem v. Stearns, 9 Paige (N. Y.), 406; 
 
 6. Bank v. Schumann, 63 How. (N.Y.) 
 476; Halstead v. Gordon. 34 Barb. 422. 
 
 A sale at auction by direction of an as- 
 signee is prima-facie evidence of his re- 
 ceiving the price. U. S. v. 'Clarke, Paine 
 (U. S.), 629, 
 
 7. Hart v. Crane, 7 Paige (N. Y.), 37. 
 
 8. McDermott v. Lorillard, i Edw. Ch. 
 (N. Y.) 273. 
 
 9. Chapin v. Weed, Clarke (N. Y.), 490; 
 Johnson v. Bennett, 39 Barb. (N. Y.) 237; 
 Davoue v. Fanning, 2 John. Ch. (N. Y.) 
 252; Gallatian v. Cunningham, 8 Cow. 
 (N. Y.) 361. 
 
 An assignee who buys in property of 
 the assigned estate at a sale on an execu- 
 tion will be considered as having bought 
 for the benefit of the estate. Harrison 
 s.-Mock, 10 Ala. 185. 
 
 10. Rents issuing out of land which has 
 
 876 
 
Bights and Duties BENEFIT OF CREDITORS. 
 
 of the Assignee. 
 
 An assignee may be compelled to produce the assignor's books 
 and papers in the former's possession, for inspection by the credi- 
 tors.^ 
 
 An assignee must keep clear, distinct, and accurate accounts.** 
 
 An assignee who is a creditor can gain no advantage by his po- 
 sition.^ 
 
 An assignee cannot use his discretion arbitrarily,* nor can he 
 •delegate his powers.^ 
 
 An assignee is personally liable for all misfeasance or neglect 
 ■of duty.^ 
 
 leen assigned for the benefit of creditors, 
 subject to incumbrances, should be ap- 
 propriated by the assignee to the pay- 
 ment of principal and interest on those 
 prior liens which would be entitled to the 
 proceeds of the land if sold. Wolff's 
 App., io6 Pa. St. 505. 
 
 1. Ingraham v. Coxe, i Ashm. (Pa.) 38. 
 
 Where the assignment directs the pay- 
 ment of a specific debt, the assignee can- 
 not resist payment on the ground that it 
 is usurious. Chapin v. Thompson, 89 
 N. Y. 270; Green v. Morse, 4 Barb. 
 (N. Y.) 332; Pratt v. Adams, 7 Paige 
 (N. Y.), 615; In re Thompson, 30 Hun 
 (N. Y.), 195. 
 
 He cannot refuse to pay a preferred 
 claim on the ground that it is fraudulent. 
 Matter of Ward, :o Daly (N. Y.), 66. 
 
 The assignee can, however, show that 
 preferred debts have been paid or re- 
 leased since the assignment was made. 
 In re Schaller, 10 Daly (N. Y.), 57; In re 
 McCuUum, 10 Daly (N. Y ), 72. 
 
 2. Perry on Trusts (3d ed.), § 821; 
 Bishop on Insolvent Debtors, § 291; 
 Blauvelt v. Ackerman, 23 N. J. Eq. 495. 
 
 If he neglect to keep regular accounts, 
 or mingle the trust funds with his own, 
 he will be charged interest. Spear v. 
 Tinkham, 2 Barb. Ch. (N. Y.) 211. 
 
 3. Where lands were assigned to dis- 
 charge debts and liabilities due to the as- 
 signee and others, it was held that the 
 forrtier had no lien on any other lands 
 not assigned, but that he might prove 
 any other debt not included within the 
 provisions of the deed, and would, as to 
 it, stand on an equality with the other 
 •creditors. Gibbs v. Cunningham, 4 Md. 
 Ch. 322. 
 
 By accepting the trust an assignee 
 •waives any specific lien he 'may have on 
 the property, and must take according to 
 the stipulations of the deed. Harrison v. 
 Mock, 10 Ala. 185. 
 
 Where a deed of assignment distinctly 
 directs that the proceeds of the property 
 oi the assignor shall be applied, first, to the 
 payment of certain preferred creditors in 
 
 full of their debts in the order in which 
 they are named, and the assignee named 
 in said deed is the first preferred creditor, 
 and accepts the trust and enters upon the 
 discharge of its duties, he is not entitled 
 to compensation for the care and man- 
 agement of the assigned property if there 
 is not a sufficient amount of the proceeds 
 thereof to pay said preferred creditors in 
 full. Greeley v. Percival, 21 Fla. 535. 
 
 4. Where the deed gives an assignee 
 discretion to make a.pro rata distribution 
 of the property, he must show a good rea- 
 son for not doing so. Dobbins v. Porter, 
 38 Ga. 167. 
 
 5. An authority in the deed "to ap- 
 point an attorney one or more under 
 them, the said assignees, 'ivith full power, 
 etc.," gives the assignees no power to 
 delegate their trust. Nye v. Van Husan 
 6 Mich. 329. 
 
 6. An assignee who receives money 
 which should be paid over to creditors 
 becomes their debtor, without any subse- 
 quent violation of the trust, or any de- 
 mand made by the creditors. The fact 
 that they resided in another State is im- 
 material. McLemore v. Nuckolls, i Ala. 
 Sel. Cas. 5gi. 
 
 An assignee who allows a claim of the 
 estate to lie over until the statute of limi- 
 tations has run, even if he does so out of 
 charity, is personally liable to the credi- 
 tor whose dividend is reduced thereby. 
 Simpson v. Gowdy, 19 Ind. 292. 
 
 Where assignees promised certain debt- 
 ors to pay their claim, and one of the 
 forhier afterwards wrote, "I have not 
 forgotten that you will look to us for the 
 payment of your claim," held, that they 
 were liable as assignees only, and not 
 personally. Faber v. Finch, 12 Iowa. 95. 
 
 Where assignees of an auctioneer took 
 property of ' his principal bona fide and 
 without notice qf the fact, sold it, and dis- 
 tributed the proceeds among the auction- 
 eer's creditors, they were not responsible 
 to the principal. Fahnestock v. Bailey, 3 
 Met. (Ky.) 48. 
 
 When the assignees have received the 
 
 877 
 
Eights of an Assignee. ASSIGNMENTS FOR 
 
 Kights of Creditors, 
 
 If a sole assignee die or resign, a receiver should be appointed.^ 
 If he mismanage and waste the property entrusted to him and 
 persist in so doing, injunction and appointment of a receiver is the 
 proper remedy.* 
 
 An assignee may be compelled, either by creditors * or ,by the 
 assignor,* to account and to make distribution of the trust fund. 
 Or he may himself apply for a judicial settlement of his ac- 
 counts.-' 
 
 After the final account is settled, the assignee and his sureties 
 are entitled to be discharged.® 
 
 12. Rights and Powers of Creditors. — A creditor who can prove that 
 the assignment is fraudulent may attach the debtor's property.'' 
 
 debtor's property into their possession, 
 they are liable for it to the debtor if the 
 assignment be invalid, and to the credi- 
 tors if the assignment be valid. Being 
 each liable for the other, either may se- 
 cure the other against such liability in 
 any manner not repugnant to law. Per- 
 kins V. Hitchcock, 49 Me. 46S. 
 
 An assignee who pays over money to 
 the assignor before he has paid all the 
 debts in full is liable to any unpaid cred- 
 itor for money had and received. Fitch 
 V. Workman, g Mete. (Mass.) 517. 
 
 A sale without public notice, without 
 disclosing the nature of the debtor's inter- 
 est, and for an inadequate price, is evi- 
 dence of fraud, and will make the as- 
 signee personally liable to creditors in a 
 court of equity even after he has settled 
 his account. Hays v. Doane, 11 N. J. 
 Eq. 84. 
 
 An assignee who at once accepts is re- 
 sponsible, though he take no active part 
 in the duties of the assignment, but leaves 
 the management to his co-assignee. Bow- 
 man V. Rainetaux, I HofT. (N. Y.) 150. 
 
 An assignee who allows the assignor 
 to retain possession of and use any of the 
 property is responsible for the value of 
 such use. Harrison v. Mock, 16 Ala. 616. 
 
 An assignee is responsible for 4ny loss 
 sustained by his negligence in not tak- 
 ing a legal defence to a claim against the 
 estate. Blackburhe's App., 39 Pa. St. 
 160. 
 
 An assignee who refuses to account 
 for his receipts of rents will be charged 
 with rent. Green v. Winter, i John. Ch. 
 (N. Y.) 26. 
 
 1. The trusts arising under general as- 
 signments for the benefit of creditors are 
 peculiarly objects of equity jurisdiction. 
 When, therefore, the assignee resigned, 
 and it became necessary for the benefit of 
 those interested that there should be some 
 one to carry out the trust, the appoint- 
 ment of a receiver, as successor to the as- 
 
 signee, was proper. McFerran v. Davis, 
 70 Ga. 661. 
 
 3. Cohen v. Morris, 70 Ga. 313. 
 
 Where a small store of goods was as- 
 signed, the assignee was bound to sell 
 immediately either privately or at public 
 auction; and he having undertaken tore- 
 tail the goods, a receiver was appointed 
 with directions to sell without delay. 
 Hart V. Crane, 7 Paige (N. Y.), 37. 
 
 S. In re Farnum, 13 Hun (N. Y.), 159; 
 s. c, 75 N. Y. 79; Goncelier v. Foret, 4 
 Minn. 13. 
 
 The action may be brought by one of 
 the creditors in behalf of himself and all 
 others similarly situated. Petrie v. 
 Lansing, 66 Barb. (N. Y.) 357. Kerr v. 
 Blodgett, 48 N. Y. 62; Brooks v. Gib- 
 bons, 4 Paige (N. Y.), 374. 
 
 4. Armstrong v. Byrne, i Edw. Ch. 
 (N. Y.) 79. 
 
 An administrator of the assignor can- 
 not cite the assignee to account; he is 
 not a creditor. Ingraham v. Cox, i Par- 
 son's Cas. (Pa.) 70. 
 
 5. Ludlow V. Simond, 2 Caines Cas. 
 (N. Y.) I, 39, 52. 
 
 The practice in these matters of ac- 
 count is regulated by statute. See 
 Bishop on Insolvent Debtors, §§ 361, 
 403. 
 
 6. Bishop on Insolvent Debtors, § 408. 
 
 7. Bishop on Insolvent Debtors, §§ 
 217, 220, 221. 
 
 All personal property capable of man- 
 ual delivery can be seized by the sheriff. 
 Rinchey v. Stryker, 28 N. Y. 45; s. c, 
 26 How. (N. Y.) 75; 31 N. Y. 140; Hall 
 V. Stryker, 27 N. Y. 596; Carr v. Van 
 Hoesen, 26 Hun (N. Y.), 316; Castle v. 
 Lewis, 78 N. Y. 131. 
 
 Choses in action cannot be attached 
 after the title has passed to the assignee. 
 Thurber v. Blanck, 50 N. Y. 80; Smith 
 V. Longmire, 24 Hun (N. Y.), 257; Bowe 
 V. Arnold, 31 Hun (N. Y.), 256. 
 
 Property which the assignee has al- 
 
 878 
 
Eights and Powers BENEFIT OF CREDITORS. 
 
 of Creditors. 
 
 A judgment creditor may proceed by execution,* or, if this fails, 
 he can proceed in equity.'-* 
 
 The more usual and effective mode of obtaining relief is by an 
 action to set aside the assignment.^ 
 
 Only creditors who are injured by the assignment* and dis- 
 afifirm it^ can assert their rights against it in law. 
 
 The priority of the United States as a creditor is not affected 
 by an assignment.® 
 
 Creditors should present theif claims on receiving notice.'' 
 
 ready sold cannot be attached. Lanning 
 V. Streeter, 57 Barb. (N. Y.) 33; Green- 
 leaf V. Mumford, 50 Barb. (N. Y.) 343; 
 s. c, 35 How. (N. Y.) 148; Lawrence v. 
 Bank, 35 N. Y. 320. 
 
 Where a deed for the benefit of credi- 
 tors is void as to them, and a creditor 
 seeks to obtain payment of his claim by 
 attaching the proceeds of the sale of the 
 trust property in the possession of the 
 trustees, the attachment must be laid in 
 their hands jointly, and the plaintiff 
 can only recover against them jointly. 
 O'Connell v. Ackerman, 62 Md. 337. 
 
 A void assignment furnishes no ground 
 for an attachment, but it is otherwise if 
 it is fraudulent as well. Friend v. Mi- 
 chaelis, 15 Abb. N. C. (N. Y.) 354. 
 
 1. Austin V. Bell, 20 John. (N. Y.) 
 442; McConnell v. Sherwood, 84 N. Y. 
 582. 
 
 2. Bishop on Insolvent Debtors, § 223. 
 
 3. In New York this is done by a 
 creditor's bill. Bishop on Insolvent 
 Debtors, § 224. To maintain such a 
 bill, the creditor must first have exhausted 
 his remedy at law. Andrews v. Durant, 
 18 N. Y. 496; Wilson v. Forsyth, 24 Barb. 
 (N. Y.) 105; Willetts V. Vandenburgh, 34 
 Barb. (N. Y.) 424. 
 
 The action may be brought by a credi- 
 tor in his own behalf or in behalf of him- 
 self and all others similarly situated. 
 Hammond v. Hudson Riv. Co., 20 Barb. 
 (N. Y.) 378; Brownson v. Gifford, 8 How. 
 (N. Y.) 389. 
 
 The assignor and assignee are the only 
 necessary parties defendant, as the latter 
 represents the creditors interested in up- 
 holding the aissignment. Wheeler v. 
 Whedon, 9 How. (N. Y.) 293; Russell v. 
 Lasher, 4 Barb. (N. Y.) 232; Rogers v. 
 Rogers, 3 Paige (N. Y.), 379. 
 
 In Cohen v. Morris, 70 Ga. 313, the 
 debts due the plaintiff were provided for 
 in the assignment, but he claimed that 
 some of the goods covered by the assign- 
 ment were never sold to the assignors at 
 all, but were delivered by the plaintiff to 
 them for inspection and a selection of such 
 as they would buy, and a recovery of these, 
 
 or the proceeds thereof, was sought. It 
 was held that the remedy was more com- 
 plete in equity than at law, and that the 
 plaintiff could assail the assignment as 
 fraudulent, and seek to set it aside as to 
 property obtained from him by fraudu- 
 lent representations with whicji the as- 
 signees are connected. 
 
 4. Fox V. Heath, 16 Abb. Pr. (N. Y;) 
 163; Bank v. Eames, 4 Abb. App. Dec. 
 (N. Y.) 83; Bank v. Root, 3 Paige (N. Y.), 
 478; Richardson v. Herron, 39 Hun (N. 
 Y.), 537. 
 
 Where in a general assignment by two 
 partners, the assignee was directed, after 
 paying certain preferred debts and all 
 firm debts and liabilities, to apply the 
 residue, if any, in payment of the indi- 
 vidual debts, pro rata, and the individual 
 properties of the partners differed in 
 amount, as also their indebtedness, held, 
 that the making the individual properties 
 a joint fund for the payment of all debts 
 defrauded the individual creditors of one 
 partner, and that a firm creditor who 
 was hindered and delayed, though not 
 defrauded, by this direction, could have 
 the assignment set aside on that account. 
 Crook V. Rindskopf, 34 Hun (N. Y.), 457. 
 
 In Wooldridge v. Irving, 23 Fed. R. 
 676, a similar provision was held not to 
 invalidate the assignment, as it did not 
 show that a fraud on any creditor was in- 
 tended thereby, and none might, in point 
 of fact, result. 
 
 5. Johnson v. Rogers, 15 Nat. Bank. 
 Reg. I. 
 
 If a creditor takes a dividend, he can- 
 not afterwards avoid the assignment. 
 Babcock V. Dill, 43 Barb. (N. Y.) 577. 
 
 Unless he was ignorant of its fraudu- 
 lent character. Van Nest v. Yoe, I Sand. 
 Ch. (N. Y.) 4. 
 
 Conversely, upon a distribution of the 
 proceeds of sale by an assignee for the 
 benefit of creditors, no one claiming ad- 
 versely to the assignment can participate. 
 Williams' App., loi Pa. St. 474. 
 
 6. U. S. Rev. Sts. §§ 34, 66, 67. 
 
 7. Bishop on Insolvent Debtors, § 351. 
 Under the Ohio statute relating to in- 
 
 879 
 
ASSIGNMENTS FOR BENEFIT OF CREDITORS. 
 
 Creditors may compel a proper management of the trust by the 
 assignee.^ 
 
 The assignment does not prevent a creditor from recovering 
 judgment and proceeding against any property of the debtor not 
 assigned.* 
 
 ASSIGNOR— ASSIGNEE. See ASSIGNMENT. 
 
 ASSIGNS. See Deeds ; Powers ; Trusts ; Wills. 
 
 solvent debtors, the creditor of an as- are cestuis que truslent; and although they 
 
 signor, who does not present his claim 
 prior to the payment of a dividend and 
 within six months after publication of the 
 notice of assignment, may afterwards 
 present his claim and receive a dividend- 
 ^thereon equal to that paid to other credi- 
 tors, in case there is money or assets re- 
 maining in the hands of the assignee suf- 
 ficient to make such payment. Carpen- 
 ter V. Dick, 41 Ohio St. 295. 
 
 A creditor who fails to prove his claim 
 is not entitled to receive a dividend. In 
 re Baily, 58 How. (N. Y.) 446. 
 
 The determination of what is "good 
 <:ause " for admitting proof of a claim 
 after the expiration of the time fixed by 
 notice is within the assignee's discretion. 
 Bank v. Scudder, 15 Mo. App. 463. 
 
 1. It seems that if such an assignee 
 refuses, in a proper case, to proceed and 
 ^et in the assigned property, the creditors 
 collectively, or one in behalf of all who 
 may come in and join, may compel the 
 execution of the trust in equity, or may 
 -cause the removal of the assignee and 
 the appointment of another. Crouse v. 
 Frothingham, 97 N. Y. 105. 
 
 In Merwin v. Richardson, 52 Conn. 
 223, certain creditors requested the as- 
 signee to institute proceedings to subject 
 certain real estate (which had been con- 
 veyed, prior to the assignment, to other 
 ■creditors without consideration) to the 
 payment of all the debts, and, he declin- 
 ing, brought a suit in their own names 
 for the benefit of all the creditors, who 
 were cited in, some of them filing a cross- 
 complaint praying that the prayer of the 
 ■original complaint might be granted. 
 After the hearing, and before judgment, 
 the assignee and H., the debtor, filed sep- 
 arate applications to be admitted as co- 
 plaintifis, and were so admitted. Held. 
 that a judgment was properly rendered 
 vesting the title of the real estate in the 
 assignee for the benefit of all the cred- 
 itors. 
 
 Where insolvent debtors have made an 
 assignment for the benefit of their cred- 
 itors, setting out in the deed of assign- 
 ment the names of such creditors and the 
 amounts due them, the persons so named 
 
 may not be preferred creditors, they are 
 interested in a just administration of the 
 trust, and are entitled to equitable relief 
 in case of mismanagement, waste, or vio- 
 lation of the trust by the assignees. 
 Cohen v. Morris, 70 Ga. 313. See also 
 Windham v. Patty, 62 Tex. 490. 
 
 2. In Lawrence v. McVeagh, 106 Ind; 
 210, it was held that the statute govern- 
 ing assignments for the benefit of credit- 
 ors does not suspend the creditors' right 
 to maintain an action at any time, in the 
 proper court, for the recovery of a per- 
 sonal judgment against the assignor for 
 the amount due. 
 
 In Sanborn v. Norton, 59 Tex. 308, it 
 was held that where there was no stipula- 
 tion for a release a creditor was not de- 
 barred from collecting any balance that 
 might be due on his claim after crediting 
 it with the amount received from the as- 
 signee, and, that, the debt being estab- 
 lished, the plaintiff was entitled to a 
 judgment declaring that fact, and that it 
 should not become a lien on any of the 
 assigned property, but that execution 
 might issue against any property not 
 transferred by the assignment. 
 
 But in Hatchett v. Blanton, 72 Ala. 
 423, it was held that a creditor secured 
 by an assignment of property voluntarily 
 executed by the debtor may elect whether 
 he will accept its provisions, or will assert 
 his rights independent of it; but he must 
 accept or reject it as an entirety, and can- 
 not accept it in part and repudiate it in 
 part — he cannot claim both under and 
 against it. 
 
 In assignments stipulating for a release, 
 though non-consenting creditors do not 
 take, they may attach any excess which 
 may remain in the hands of the assignee 
 after the payment of consenting creditors. 
 Keating v. Vaughn, 61 Tex. 518. 
 
 Authorities for Assignment for Benefit 
 of Creditors. — Angell on Assignments, 
 1835; Burrill on Assignments (4th Ed.), 
 1882; Bishop on Insolvent Debtors (2d 
 Ed.), 1884; Notes to Thomas v. Jenks, i 
 American Leading Cases (5th Ed.), 71; 
 2 Kent's Comm. (13th Ed.1 1884, p. 532 et 
 seq.; Article ins South. L. Rev. (N.S.)553. 
 
 880 
 
Definition. 
 
 ASSIZE— ASSOCIA TION. 
 
 Definition. 
 
 ASSIZE— ASSIZES. (See also NiSI PriuS.)— This word is derived 
 from the Latin' assideo, to sit together, and is used in several 
 senses : as a species of jury or inquest ; ^ the proceedings in 
 court upon a writ of assize or species of real action ; * the court 
 or sittings of the court ; ^ an ordinance or statute;* anything: 
 fixed, as a tax, tribute, fine.^ 
 
 ASSOCIATION. (See also CORPORATION ; PARTNERSHIP.)— The 
 act of a number of persons in uniting together for some purpose.. 
 The persons so joining. This term is used throughout the United- 
 States to signify a body of persons united without a charter, but 
 upon the methods and forms used by incorporated bodies for the 
 prosecution of some common enterprise.® A corporation. In 
 this sense it enters into the names bestowed by the legisla- 
 tures upon many corporations.'' In English law, writs of asso- 
 ciation.* 
 
 1. Litt. sec. 234; Co. Litt. 153; 3 Bl. 
 Com. 185. 
 
 The distinction between an "assize" 
 and a jury was that an "assize" was 
 the regular mode of trying the main issue 
 in questions of seizin ; a jury was used 
 to determine any incidental question 
 arising in the cause. Bract, fol. 1&46, 215, 
 and Bract, fol. 192 b, 215. 
 
 2. Co. Litt. 159, b.; 3 BI. Com. 184, 
 185. 
 
 The principal assizes were those of 
 novel disseizin, niort d' ancestor, darrein 
 presentment, and utrum. See Co. Litt. 
 153, b. These writs areall now obsolete. 
 
 3. This ancient use of the word "as- 
 size" to denote court is still used in Eng- 
 land to denote the sessions of the judges 
 of the superior courts, holden periodical- 
 ly in each county for the purpose of ad- 
 ministering civil and criminal justice. 
 The courts are called courts of assize and 
 nisiprius. 3 Stephen Com. 421, 422. See 
 Simon's Executors v. Gratz, 2 P. & W. 
 (Pa.) 412; s. c, 23 Am. Dec. i. 
 
 The court of " assize" is a superior 
 court, with power of committing for con- 
 tempt without being required to set out 
 the cause of commitment with the par- 
 ticular circumstances. In re Fernandes, 
 6 H. & N. 717. 
 
 But it is not a court of error or superior 
 court like the Court of Queen's Bench, so 
 as to come within the principle " in prce- 
 sentid majoris cessat potestas minoris." 
 Therefore the authority of the courts of 
 Quarter Sessions is not in law either de- 
 termined or suspended by the coming of 
 the judges into the county under their ciate judge" is frequently used of judges 
 commission of "assize." Smith v. of appellate courts, as the chief justice 
 Queen, 13 Ad. & Ell. (N. S.) 738. and the associate judges. U. S. Rev. 
 
 4. The most important examples of Stat. § 673. 
 
 these are " The Assizes of Jerusalem," "AsBOoiates" used in a Charter. — In 
 
 I C. of L.— 57 881 
 
 a code of feudal jurisprudence compiled 
 A. D. logg. Butler's Co. Litt. note 77, 
 book 3; I Robertson's Charles V., Appen- 
 dix, note XXV. The assizes of Clarendon, 
 of the forest, of arms, of bread, are not- 
 ed English statutes. 
 
 5. Spelman. 2 Bl. Com. 42. 
 
 6. Abbott's' Law Diet, sub voce. 
 
 7. In New York, associations under the 
 general banking law of the State are cor- 
 porations. Board of Supervisors of the; 
 County of Niagara v. People ex rel. , 7' 
 Hill (N. Y.), 504. See Gillet v. Moody,. 
 3 Comst. (N. Y.) 479; Talmage v. Pell, 3, 
 Selden (N. Y.), 328. 
 
 8. These are writs directing certain, 
 persons (usually the clerk and his subor- 
 dinate ofiicers) to associate themseives- 
 with the justices and sergeants for the 
 purpose of taking the assizes. 3 Bl. 
 Com. 59. 
 
 Associate. — Such an officer is called an 
 "associate." Mozley & Whitley Law^ 
 Diet. 
 
 In common law an "associate'' has 
 been applied to a person in each court 
 charged with the custody and formal 
 preparation of records. Abbott's Law 
 Diet. 
 
 Under statute this name has been con- 
 firmed. Stats. 15 & 16 Vict. ch. 73, g§: 
 1-6, and 17 & 18 Vict, ch. 125, § 2. 
 
 By the Judicature (Ofiicers) Act, 1879, 
 the existing associates were converted in- 
 to masters of the supreme court, and the 
 office of associate abolished. Rap. & 
 Lawr. Law Diet. 
 
 In the United States the term " asso- 
 
Definition— History. ASSUMPSIT. Forms of the Action, 
 
 ASSUMPSIT. (See also ACTION ; CONSIDERATION ; Contract ; 
 Evidence ; Pleading ; Practice ; Promise.) — 1. Definition.— 
 Assumpsit is an action for the recovery of damages for the non- 
 performance of a parol or simple contract, or, in other words, a 
 contract not under seal nor of record. ^ Though a species of tres- 
 pass on the case, it is an action ex contractu, and does not lie in 
 cases of tort, except in some cases to be referred to, where the tort 
 may be waived. 
 
 2. History. — Whenever a form of writ suitable to a particular 
 case could not be found in the Register, it was allowed to frame 
 special writs called magistralia; but the ofificers of Chancery being 
 reluctant to do this, the statute of Westminster 2 (13 Ed. I, stat. i, c. 
 24) was passed, enacting that where in one case a writ was found, 
 and "in Hke case {in consimili casu) falling under like law {i.e., 
 principle) and requiring like remedy" there was none, the clerks 
 of Chancery should agree in making one, or in case of non-agree- 
 ment should refer the matter to the next Parliament, Actions 
 brought by these new writs were known as actions " on the case." 
 It is evident that for some time these were regarded as lying only 
 in tort, even where the gist of the action was a contract, the rem- 
 edy being given in that case solely on account of the special injury 
 resulting to the plaintiff from a non-feasance. Where there was 
 no special damage,, there was therefore no remedy, except in the 
 case of a money demand, where debt would lie.'-* This idea was 
 overthrown, however, in Slade's Case,^ which decided that in the 
 latter event assumpsit would lie as well as debt, and also that the 
 mere non-performance of the contract, apart from any special 
 damage resulting therefrom, was sufficient ground for the former 
 action ; and it was this decision that gave rise to the present im- 
 portance of this action."* 
 
 3. Porms of the Action. — Common Counts.- — The common forms 
 are: ^ (i) The indebitatus assumpsit,^ which lies on a promise, ex- 
 construing a charter incorporating per- should "associate,"' continue to l:eep 
 sons named "and their associates," the company with, or cohabit, or criminally 
 court (Shaw, C. J.) said: "The term ' as- correspond with J. H., it vva« held that 
 sociates ' as often used in acts of incor- all intercourse whatever, though the most 
 poration is ambiguous. It may mean innocent, is within the terms of the deed, 
 those who are already associated with Lord Dormer «<. Knight, i Taunton, 417. 
 the persons named, or those who may 1. i Chit, on Pleading, 98. 
 
 come in afterwards." Parol evidence 2. N. B. 94, A; 3 Woodd. 165; 2 Black. 
 
 may be received to show who are meant Rep., 850; i Hen. Black. 550-1. 
 
 in the particular case. Lechmere Bank ' 3. 4 Coke, gi to 95 (44 Eliz.). 
 
 ■y. Boynton, 11 Cush. (Mass.) 369. See 4. Blackstone, J., thought that a«?««/- 
 
 State v. Sibley, 25 Minn. 3S7. sit was introduced in cases of mutuatus 
 
 Where the word is used in a devise, if and other debts in Queen Elizabeth's 
 
 it has no meaning, or is absurd, or re- time, in order to give the Court of Queen's 
 
 pugnant to the clear intention of the tes- Bench an original jurisdiction in action 
 
 tatrix, manifested in other parts of the of debt, wherein (as in cases of detinue, 
 
 will, it may be rejected as surplusage, covenant, and account) no original was by 
 
 Bartlett v. King, 12 Mass. 537, 542, law returnable out of Chancery. Mast v. 
 
 "Associate" is also used in its ordi- Goodson, 2 Bla. 850. 
 
 nary sense, to have to do with, to hold in- 5. Tidd's Pr. 2. 
 
 tercourse with. Thus, under a proviso 6. It does not lie where the agreement 
 
 that an annuity should cease if a lady is not for the payment of money, but for 
 
 883 
 
Forms of the Action. 
 
 ASSUMPSIT. 
 
 Forms of the Action. 
 
 press or implied, to pay a precedent debt "; for money paid to the use 
 of or lent to the defendant ;^ for money had and received by the 
 defendant to the use of the plaintiff ; ** for the sale and assignment, 
 and use and occupation, of houses and lands ; ^ for goods bargained, 
 
 doing some other thing. In that case the 
 action must be special. Spratt v. Mc- 
 Kinneys, i Bibb, (Ky.) 595; Brookes w. 
 Scott, 2 Munf. (Va.) 344; Cochran v. Ta- 
 tum. 3 Monroe (Ky.), 405. 
 
 It lies wherever an express contract, 
 not under seal, has been fully executed. 
 Perkins v. Hart, 11 Wheat. (U. S.) 237; 
 Mattocks V. Lyman, 16 Vt. 113; Balcer v. 
 Corey, 19 Pick.^ (Mass.) 496; Feeter v. 
 Heath, 12 Wend. (N. Y.) 477; Kelly v. 
 Foster, 2 Binn. (Pa.)4; Bagleyw. Bates, 
 Wright (Ohio), 705; Coursey v. Coving- 
 ton, 5 Har. & J. (Md.) 45; Hyde v. Li- 
 verse, I Cranch C. Ct, (U, S.) 408; Lar- 
 son V. Schmaus, 31 Minn. 410. Compare 
 Krouse v. Deblois, i Cranch C. Ct. (U. 
 S.) 138; Talbot V. Selby, i Cranch C. Ct. 
 (U. S.) 181; Bishop of Chicago v. Bauer, 
 62 111. 188; Gill V. Vogler, 52 Md. 663; 
 Lawson tj. Hogan, 93 N. Y. 39. 
 
 Unless full performance according to 
 contract has been prevented by the other 
 side. Chicago v. Tilley, 103 U. S. 146; 
 Fitzgerald v. Allen,' 128 Mass. 232; Car- 
 roll V. Giddings, 58 N, H. 333; Baca v. 
 Barrier, 2 New Mex. 131. 
 
 It does not lie where the contract is to 
 be performed in future: in such a case 
 the declaration must be special. Felton 
 V. Dickinson, lo Mass. 287; Shepard v. 
 Palmer, 6 Conn, joo ; Speake v. Shep- 
 pard, 6 Har. & J. (Md.) 81; Halloway v. 
 Davis, Wright(Ohio), 129; Clarkw. Smith, 
 14 Johns. (N. Y.) 326; Phelps u. Hub- 
 bard, 59 111. 79; Moore v. Nason, 48 
 Mich. 300. 
 
 1. Curtis V. Flint, etc., R. Co., 32 
 Mich. 291; White v. Miners' Bank, 102 
 U. S. 658; Lee v. Stone, 57 Tex. 444; 
 Fleischer v. Klumb, 56 Wis. 439; Soule 
 V. Frost, 76 Me. 119; Atkins v. Nichols, 
 51 Conn. 513. 
 
 But assumpsit for money paid to the 
 use of another will not lie where there is 
 no promise, express or implied, to repay 
 the same. Briscoe v. Power, 64 111. 72. 
 
 Though a promise will be implied where 
 the money is paid under legal process. 
 lA)gan Tj. Talbot, 59 Cal. 652. 
 
 Nor will assumpsit lie on a sum prom- 
 ised to be loaned. Conway ji. Log Cabin, 
 etc.. Building Assoc, 52 Md. 136; and 
 see Stanley v. Nye, 51 Mich. 232. 
 
 2. Colt V. Clapp., ,127 Mass. 476; Har- 
 per V. Claxton, 62 Ala. 46; Donkersley w. 
 Levy, 38 Mich. 54; Butler v. Frank, 128 
 Mass. 29; Keane v. Beard, 11 Mo. App. 
 
 10; Brand ». Williams, 29 Minn. 238; 
 Hobbs V. Hobbs, 58 N. H. 81; Keene v. 
 Sage, 75 Me. 138; Risdon v. De la Rue, 
 51 N. Y. (Super. Ct.) 63 ; McFadden v. 
 Wilson, 96 Ind. 253; Zacharias z/. Zacha- 
 rias, 23 Pa. St. 452. 
 
 Assumpsit for money had and received 
 lies for money received tortiously or by 
 duress under color of office, the law im- 
 plying a contract in such cases. Kitchin 
 V. Campbell, 3 Wils. 304; Dana v. Kem- 
 ble, 17 Pick. (Mass.) 545 ; Dumond v. 
 Carpenter, 3 Johns. (N. Y.) 183; Sturte- 
 vant V. Waterbury, 2 Hall (N. Y.), 453; 
 Ripley v. Geltson, 9 Johns. (N. Y.) 201; 
 Metropolis Bank v. Jersey City Bank. 19 
 Fed. Rep. 301, and see note 9, p. 886. 
 
 But not for merely gratuitous dona- 
 tions. Wills V. Wells, 8 Taunt. 264; 
 Crockford v. Winter, i Camp. 124. 
 
 Nor where the amount to which plain- 
 tiff is entitled cannot be accurately deter- 
 mined in an action at law. Douglass v. 
 Skinner, 44 Conn. 338; Chaffee v. Frank- 
 lin, II R. I. 578. Compare Pratt v. Bates, 
 40 Mich. 37. 
 
 3. Elliott V. Rogers, 4 Esp. Rep. 59; 
 Davis V. Morgan, 4 B. & C. 8. Compare 
 Kirtland v. Pounsett, 2 Taunt. 145. 
 
 Where the possession is adverse or the 
 relation of landlord and tenant has neyef 
 subsisted, assumpsit for use and occupa- 
 tion will not lie, the remedy being in 
 ejectment or trespass. Ward v. Ball, i 
 Branch, 271; Stoddert v. Newman, 7 
 Har. & J. (Md.) 252; Ryan v. Marsh, 2 
 Nott. & McC. (S. C.) 156; Wiggin v. Wig- 
 gin, 6 N. H. 29? ; Richey v. Hinde, 6 
 Ham. 371; Stockett v. Watkins, 2 Gill & 
 J. (Md.) 327; Central Mills Co. v. Hart, 
 124 Mass. 123; Hurley v. Lamoteaux, 29 
 Minn. 138; Fielder v. Childs, 73 Ala. 
 567; Stringfellow v. Curry, 76 Ala. 394; 
 Aull Savings Bank v. Aull, 80 Mo. 199. 
 
 Nor where the defendant came into 
 possession under a contract of sale which 
 is not completed by reason of a defect of 
 title. Winterbottom v. Ingham, 7 Q. B. 
 611; Brewer v. Craig, 3 Harr. 214; Baii- 
 croft V. Warden, 13 Johns. (N. Y.) 459; 
 Little V. Pearson, 7 Pick. (Mass.) 301. 
 
 Unless he continues in possession after 
 the contract is off. Howard v. Shaw, 8 
 M. & W. 118. 
 
 And so also whenever the tenant re- 
 mains after the relation is terminated. 
 National Oil Refg. Co. v. Bush, 88 Pa. St. 
 335; Lucier v. Marsales, 133 Mass. 454- 
 
Forms of the Action, 
 
 ASSUMPSIT. 
 
 Forms of the Action. 
 
 sold, and delivered ; * and for work, service, labor, and materials.* 
 
 (2) The quantum meruit or valebant, on a promise to pay the 
 plaintiff for the like considerations as much money as he deserved 
 to have, or for goods, etc., as much as they were reasonably worth.* 
 
 (3) The insimid computassent. on a promise to pay the sum due on 
 an account stated between the parties.* 
 
 If the contract fail through the vendee's 
 fault, or by accident or consent, assump- 
 sit will lie. - Gould v. Thompson, 4 Met. 
 (Mass.) 224; Clough v. Hosford, 6 N. H. 
 234; Davidson v.' Ernest, 7 Ala. 817; 
 Johnson v. Beauchamp, 9 Dana (Ky.), 
 124. 
 
 But in this case the plaintiff, in order 
 to recover, must first restore any benefits 
 he has received from the contract. Spiller 
 V. Cass, 58 N. H. 489. 
 
 Assumpsit for use and occupation does 
 not lie for rent reserved in a lease under 
 seal. Smiley v. McLau,thlin, 138 Mass. 
 363. See generally, on this form of as- 
 sumpsit, Boston V. Binney, 11 Pick. 
 (Mass.) I ; Featherstonhaugh v. Brad- 
 shaw, I Wend. (N. Y.) 134; Smith v. 
 Stewart, 6 Johns. (N. Y.) 46; O'Connor 
 w.,Tynes, 3 Rich. (S. C.) 276; McGunna- 
 gle V. Thornton, 11 S. & R. (Pa.) 251; 
 Lloyd z/. Hough, i How. (U. S.)i53; Sea- 
 brook V. Moyer, 88 Pa. St. 417; Horton 
 V. Cool'ey, 135 Mass. 589; Prial v. Eti- 
 twistle, 10 Daly (N. Y.), 398; Smart v. 
 Allegaert, 14 Phila. (Pa.) 179; Grove v. 
 Barclay, 106 Pa. St. 155. 
 
 1. If the goods were to be paid for by 
 bill of exchange or promissory note, the 
 declaration should be special, unless the 
 term of credit has expired, in which case 
 the common count may be used. Bick- 
 ham V. Irwin, 3 Y. (Pa.) 66; Hanna v. 
 Mills, 21 Wend. (N. Y.) 90 ; Man. & 
 Mech. Bank v. Gore, 15 Mass. 75 ; Man- 
 ton V. Gammon, 7 111. App. 201. 
 
 Assumpsit lies for the value of goods 
 which a defendant by fraud induced the 
 plaintiff to sell to an insolvent person 
 and obtained subsequently for his own 
 benefit. Hill z/. Perrott, 3 Taunt. 274; 
 Abbotts V. Barry, 5 Moore, 98 ; Edmeads 
 V. Newman, i B. & C. 418. 
 
 2. Where one is prevented from fully 
 performing a contract, though under Seal, 
 by the act <)i the other party or by in- 
 evitable accident, he may recover for 
 what he has done m assumpsit for his 
 labor. Willington v. West Boylston, 4 
 Pick. (Mass.) loi ; Selby v. Hutchinson, 
 9 111. 319. See Janes v. Buzzard, Hemps. 
 240; Blakeslee v. Holt, 42 Conn. 226 ; 
 Haynes v. St. Louis Baptist Church, 12 
 Mo. App. 536 ; Whelan v. Ansonia Clock 
 Co., 97 N. Y. 293. 
 
 And where work done under a sealed 
 contract, but not in accordance therewith, 
 is accepted, assumpsit will lie. Watch- 
 man u. Crook, 5 Gill. & J. (Md.) 240; 
 Andre v. Hardin, 32 Mich. 324. 
 
 But where the consideration for the 
 services is fixed by contract, assumpsit 
 for work and labor done on a quantum 
 meruit will not lie. Anderson v. Rice, 
 20 Ala. 239 ; Hawk v. Walworth, 4 Ark. 
 577 ; Ladue v. Seymour, 24 Wend. 60 ;. 
 Campbell z/. District of Col , 2MacArthur 
 (U. S.), 533; Mansur v. Botts, 80 Md. 65t. 
 
 Unless the contract is invalid, as by 
 Statute of Frauds. Buckingham v. Lud- 
 lum, 37 N. J.iEq. 137 ; Frazer v. Howe,. 
 106 111. S63 ; Mills V. Joiner, 20 Fla. 
 479; Cohen v. Stein, 61 Wis. 508. 
 
 But indebitatus assumpsit on the com- 
 mon counts lies where the contract has. 
 been fully executed. Dermott u. Jones, 
 2 Wall. (U. S.) I. See Gorman v. Bel- 
 lamy, 82 N. C. 496 ; Barnwell v. Kemp- 
 ton, 22 Kan. 314 ; Jones v. Mial, 82 N.. 
 C. 252 ; McMillan v. Malloy, 10 Neb.. 
 228, where the plaintiff recovered on an 
 incomplete performance, without default 
 of the defendant, who had been benefited 
 by the part performance. 
 
 Or part performance thereof accepted 
 by the defendant. Bozarth v. Dudley, 44 
 N. J. L. 304. 
 
 It does not lie, however, for services 
 voluntarily rendered. Force u. Haines, 
 17 N. J. L. 385 ; Taylor v. Lincumfelter, 
 I Lea (Tenn.), 83 ; Reed v. Baggott, 5. 
 111. App. 257 ; Coe v. Wager, 42, Mich. 
 49 ; Jared v. Vativleet, 13 111. App. 334 ;. 
 King V. Barber, 61 Iowa, 674. 
 
 3. See Aiken v. Blodgood, 12 Ala. 221 ; 
 Brown v. Snow, 14 La. Ann. 848; Young 
 V. Preston, 4 Cranch, 239; Thompson v. 
 Purcell, 10 Allen (Mass.), 426; Porter v. 
 Beltzhoover, 2 Harr. (Del.) 484; Houston, 
 etc., R. Co. V. Snelling, 59 Tex. 116;; 
 and cases cited in note 2, supra. 
 
 4. State V. Jennings, 10 Ark. 428; N. 
 H. Mut. Fire Ins. Co. v. Hunt, 31 N. H. 
 219; Tussey V. Church, 4 W. & S. (Pa.)- 
 141. 
 
 A partner cannot recover in assumpsit 
 against his copartner, sinless on a final 
 balance a sum is found due which the 
 latter has either expressly or impliedly 
 promised to pay. Wray v. Milestone,. 
 
 884 
 
Liability— Special. 
 
 ASSUMPSIT. 
 
 On Mutual Promises. 
 
 4. liability Assumpsit. — The liability assumpsit lies on a promise 
 to pay money in consideration of a legal liability to pay it, as upon 
 a bill of exchange/ banker's draft, promissory note, by law,* 
 foreign judgment,* legacy charged on land,* toll,^ post-duty,<* 
 contribution to party-walls, etc' 
 
 5. On Mutual Promises. — Assumpsit lies on mutual promises to 
 pay money, as on wagers,^ feigned issues, etc.; or to do some act, as 
 to marry, perform special agreements, charter-parties, policies of 
 insurance, or awards.* 
 
 6. Special Assumpsits. — Besides the above, there are many special 
 assumpsits on promises to pay money on some consideration exe- 
 cuted or executory, or to do or forbear some act, as to sell, ex- 
 change, or assign lands ; for not accepting or delivering goods 
 purchased ; upon a warranty^** or bailment ;ii for forbearing to sue 
 or to give time for the payment of a debt ; for neglecting to per- 
 
 5 M. & W. 2i: Williams v. Henshaw, ii 
 Pick. (.Mass.) 82; Ozeas v. Johnson, i 
 Bin. (Pa.) 191. Compare Halsted v. 
 Schmelzel, 17 Johns. (N. Y.) 80; Course 
 V. Prince, i Const. Ct. (S. C.) 416, in 
 which cases it is held the promise must 
 be express. 
 
 But where a joint interest is determined, 
 as by the sale of the joint property, as- 
 sumpsit is maintainable for the plaintiff's 
 share. Seldon v. Hickock, 2 Caines (N. 
 Y.), 166; Gardiner Manufg. Co. v. Heald, 
 5 Greenl. (Me.) 381; Coles v. Coles, 
 15 Johns. (N. Y.) I5g; Jones v. Har- 
 raden, g Mass. 540. 
 
 Also where one has received more 
 than his share of the rents of the common 
 property, or has carried to the partner- 
 ship account money received for the 
 separate use of the plaintiff. Sargent v. 
 Parsons, 12 Mass. 148; Sturdivant v. 
 Smith, 2g Me. 387; Munroe v. Luke, i 
 Mete. (Mass.)45g; Smith v. Barrow, 2 T. 
 R. 476; I Chit. Con. (nth Am. Ed.) 341. 
 See BrinCkerhoff v. Wemple, I Wend. 
 (N. Y.)470. 
 
 1. Sweeny v. Willing, 6 Mo. 174. 
 
 2. Company of Feltmakers v. Davis, 
 I B. & P. g8. 
 
 The declaration need not be special. 
 Haigh ». U. S. Building Ass'n, ig W. Va. 
 792. 
 
 3. Walker v. Witter, Dougl. i; O'Cal- 
 laghan v. Thomond, 3 Taunt. 85, n. 
 
 Otherwise as to judgments rendered 
 in sister States. M'Kira v. Odom, 12 
 Me. 94; India Rubber Co. v. Hoit, 14 
 Vt. 92; Garland v. Tucker, i Bibb (Ky.), 
 361; Andrews v. Montgomery, ig Johns. 
 (N. Y.) 162. But see Hubbell v. Coudry, 
 5 Johns. (N. Y.) 132; Shumway v. Still- 
 man, 6 Wend. (N. Y.) 447; Lambkin v. 
 Nance, 2 Brevard, gg. 
 
 Assumpsit will not lie on a judgment 
 
 of a justice of the peace. Bain v. Hunt, 
 3 Hawks. 572. But see Robinson v. 
 Prescott, 4 N. H. 450; Collins v. Modiset, 
 I Blackf. (Ind.) 6g; Adair v. Rogers, 
 Wright (Ohio), 428. 
 
 4. Ewer v. Jones, 2 Salk. 415; Brath- 
 waite V. Skinner, 5 M. & W. 313; Beeck- 
 er V. Beecker, 7 Johns. (N. Y.) gg ; 
 Kelsey v. Deyo, 3 Cow. (N. Y.) 133; 
 Gauze v. Wiley, 4 S. & R. 504; Felch 
 V. Taylor, 13 Pick. (Mass.) 133^ Swasey 
 V. Little, 7 Pick. (Mass.) 2g6; Adams v. 
 Adams, 14 Allen (Mass.), 65. 
 
 5. Bearcamp River Co. v. Woodman, 
 2 Greenl. (Me.) 404; Propr's v. Taylor, 
 6 N. H. 49g; Quincy Canal Co. v. New- 
 comb, 7 Mete. (Mass.) 276. See Chest- 
 nut Hill Turnp. Co. v. Martin, 12 Pa. St. 
 361. 
 
 6. Mayor of Newport v. Saunders, 3 
 B. & Ad. 411. 
 
 7. Peck V. Wood, 5 T. R. 130; Ingles 
 V. Bringhurst, i Dall. (Pa.) 341 ; Hart v. 
 Rucher, 5 S. & R. (Pa.) i. 
 
 8. Phillips V. Ives, i Rawie (Pa.), 36; 
 t Chit. Con. (nth Am. Ed.) 735. 
 
 9. Mitchell V. Burt, 7 Cow. (N. Y.) 
 185; Bates V. Curtis, 21 Pick. 247; T.uUis 
 V. Sewell, 3 Ohio, 516; Brady v. Brook- 
 lyn, I Barb. (N. Y.) 534. 
 
 But it does not lie where ttie submis- 
 sion is under seal. Holmes v. Smith, 4g 
 Me. 242; TuUis v. Sewell, 3 Ohio, ic; 
 Horton v. Rolands, 2 Porter (Ala.), 7g. 
 
 10. Mahurin v. Harding, 28 N.H. 128; 
 Evertson v. Miles, 6 Johns. (N. Y.) 138; 
 Hallock V. Powell, 2 Caines (N. Y.), 216; 
 Kimball ii. Cunningham, 4 Mass. 505; 
 Wood V. Ashe, 3 Strobh. (S. Car.) 64; 
 Timrod v. Shoolbred, i Bay (S. Car.), 
 324; Parlin v. Bundy, 18 Vt. 582; Rus- 
 sell V. Gillmore, 54 111. 147. 
 
 11. Bank of Mobile v. Huggins, 3 Ala. 
 206. 
 
 885 
 
Requisites. 
 
 ^ ASSUMPSIT. 
 
 BequisiteB. 
 
 form services* or to account for the profits of lands or for money 
 or goods; * for neglect or breach of professional duty ; ^ on 
 promises of indemnity,* etc. , 
 
 . 7. Eequisites. — It is not in place to discuss here at length either 
 what considerations are valid, or. what promises capable of sup- 
 : porting, an action. ; Suffice it to say on the former point, the con- 
 sideration must, be. one proceeding from the party tq whom or f9r 
 whose benefit the promise is made, and must be either a benefit 
 to the party promising. or to some third person, or else a detri- 
 ment to the party to whom- the promise is made. It must also be 
 executory, i.e., .not antecedent to the time of the promise, or, if 
 executed, performed at the defendant's request \^ but there are 
 cases where from the beneficial, nature of the consideration a re- 
 quest will be implied by law ;* and a party under a legal ormoral 
 obligation to pay is bound by his promise. The consideration 
 must also be coextensive with the promise.*" As to the second 
 point, an action may be sustained on a promise made not to the 
 plaintiff, but fbr his benefit, or where the- consideration moved 
 from him.** The promise is in the majority of cases one implied 
 from the nature of the consideration, or from the defendant's 
 legal obligation.* From a moral obligation, however, no promise 
 will be implied, though it may form a sufficient consideration for 
 an express promise. 
 
 1. Halle V. Heightman, 2 East, 145. 
 
 2. I Marsh, 115; Topham v. Braddick, 
 I Taunt. 572; Canfield v. Merrick, 11 
 Conn. 425. 
 
 3. Against Attorneys and Solicitors. — 
 Stimpson v. Sprague; 6 Greenl. (Me.) 
 471; Ellis V. Henry, 5 J. J. Marsh. (Ky.) 
 248; Church z;. Mumford, 11 Johns. (N.Y.) 
 
 479- 
 
 Wharfingers. — Baker u. Liscoe, 7 T. 
 R. 17:. 
 
 Surgeons. — Slater v. Baker, 2 Wils. 359. 
 
 Innkeepers. — Dickinson v. Winchester, 
 4 Cush. (Mass.) 115; Bradish v. Hender- 
 son, I Dane Ab. 310. 
 
 Carriers. — Medford z/. Boston, etc., Co., 
 102 Mass. 552. 
 
 Other Bailee^; — Bank of Mobile v. 
 Huggins, 3 Ala. 206; Cooper v. Helsa- 
 beck, 5 Blackf. (Ind.) 14; Kennard v. 
 Jones, 9 Gratt. (Va.) 183; Barker v. Cory, 
 15 Ohio, 9. 
 
 4. Goddard v. Vanderheyderi, 3 Wils. 
 
 262. 
 5. 
 
 647; 
 295; 
 128 
 
 Parker v. Crane, 6 Wend. (N. Y.) 
 Balcolm v. Croggin, 5 Pick. (Mass.) 
 Jewett v. Somersett, 1 Greenl. (Me.) 
 Stoever v. Stoever, 9^ Serg. & R. 
 (Pa.) 434; Harding w. Cragie, 8 Vt. 501; 
 Bulkley v. Landon, 2 Conn. 204, Liv- 
 ingston V. Rogers, i Caines (N. Y,), 583. 
 See 43 Am. Jur. 2-16. 
 
 6. Hicks V. Burhans, 10 Johns. (N. Y.) 
 
 243; Livingston v. Rogers, I Caines (N. 
 Y.), 585; Greeves v. M'Allister, 2 Binn. 
 (Pa.) 591. 
 
 7. Where the plaintiff stated that the 
 defendant was liable as executor to pay a 
 certain debt, and thfen averred that in con- 
 sideration thereof he personally promised 
 to pay the same, the declaration was held 
 bad in arrest of judgment, no additional 
 consideration being shown for the en- 
 larged responsibility. 7 T. R. 350, a, and 
 348. See Berry v. Harper, 4 Gill & J. 
 (Md.)47o. 
 
 8. Lovely v. Caldwell, 4 Ala. 684; 
 Schemerhorn v. Vanderheyden, i Johns. 
 (N. Y.) 139; Felton v. Dickinson, 10 
 Mass. 287; Strohecker v. Grant, 16 S. & 
 R. (Pa.) 241; Steene w. Aylesworth, i8 
 Conn. 244. 
 
 9. A promise is implied and assumpsit 
 lies in cases coming under the principle 
 of general average. Backus z/. Coyne, 
 35 Mich. 5. 
 
 , To recover money paid under the fol- 
 lowing circumstances: 
 
 An Erroneous Judgment, — HoUings- 
 worth V. Stone, 90 Ind. 244; Metzner v. 
 Bauer, 98 Ind. 425; Scholey v. Halsey, 
 72 N. Y. 578; Hiler v. Hiler, 35 Ohio St. 
 645; Booth V. Commrs., 84 Ind. 428. 
 See Eoff v. Clay, 9 Mo. App. 176; Wright 
 V. Aldrich, 60 N. H. 161; Conn. Mut. 
 Life Ins. Co. v. Stewart, 95 Ind. 588. 
 
 886 
 
Where the Action will not lie. ASSUMPSIT. Security of a Higher Natnre. 
 
 8. Where the Action will not Lie. — Security of a Higher Nature. — 
 If a party have a security of a higher nature he must found his 
 action thereon, — as where the contract is under seal or of record, 
 — where covenant and scire facias, respectively, or in either case 
 debt, are the proper remedies.^ 
 
 Or Execution. — Hoxter v. Poppleton, 
 9 Or. 481. 
 
 Duress. — Schultz v. Culbertson, 46 
 Wis. 313 and 49 Wis. 122; Mobile, etc., 
 R. Co. V. Steiner, 61 Ala. 559; Heckman 
 V. Swartz, 50 Wis. 267; Lehigh Co. v. 
 Brown, 100 Pa. St. 338; Swift Co. v. U. 
 S., Ill U. S. 2z; Westlake & Button v. 
 St. Louis, 77 Mo. 47. Compare Hines v. 
 Hamilton Co. Commrs., 93 Ind. 266; 
 Jones V. Inness, 32 Kans. 177. 
 
 But not where it is the same amount 
 one should have paid voluntarily. Mc- 
 Vane v. Williams, 50 Conn. 348. 
 
 Fraudulent Misrepresentations. — Kiew- 
 ert V. Rindskopf, 46 Wis. 481; Johnson 
 V. Continental Ins. Co., 39 Mich. 33; 
 Bernard v. Colwell, 39 Mich. 215; Moore 
 V. Marshall, 76 Me. 353; Van Santen v. 
 Standard Oil Co., 8l N. Y. 171; Grant 
 V. Mellen, 134 Mass. 335. See Needles 
 V. Burk, 81 Mo. 569. Tappan v. Warren 
 Savings Bank, 127 Mass. 107; Young v. 
 Lehman, 63 Ala. 519. 
 
 Unless the plaintiff has subsequently 
 affirmed the contract. Fuller v. Atwood, 
 
 13 R. I- 316. 
 
 Ordinarily assumpsit is not the proper 
 remedy for a deceitful representation not 
 embodied in a written contract, but case 
 for fraud. Meyer v. Everath, 4 Camp. 
 22; Powell V. Edmunds, 12 East, 11. 
 See, however. Wood v. Smith, 4 C. & P. 
 45 ; Parlin v. Bundy, 18 Vt. 582. 
 
 Mistake of Fact. — International Bank 
 V. Bartalott, 11 111. App. 620; Stebbins 
 V. U. P. R. Co., 2 Wy. 71; Davis v. 
 Krum, 12 Mo. App. 279; Worley v. 
 Moore, 97 Ind. 15; Glenn v. Shannon, 
 12 S. Car. 570; Alston v. Richardson, 51 
 Tex. i; Talbot v. Com. Bank, 129 Mass. 
 67; Holmes v. Lucas Co., 53 Iowa, 211; 
 Neitzey v. Dist. of Col., 17 Ct. of CI. 
 iii; Sharkey v. Mansfield, 90 N. Y. 227. 
 Compare Moore v. Moore, 127 Mass. 22; 
 Manzy v. Hardy, 13 Neb. 36. 
 
 But not where it has been voluntarily 
 paid under no mistake. Union Savings 
 Assoc. V. Kehlor, 7 Mo. App. 158; Thomp- 
 son V. Doty, 72 Ind. 336; Fowler v. Hall, 
 7 111. App. 332. And see McArthur v. 
 Luce, 43 Mich. 435. 
 
 Nor for money paid under a mistake 
 in law. Beard v. Beard, 25 W. Va. 4^6. 
 Compare Kinney v. Dodge, loi Ind. 573. 
 
 An Illegal, Void, or Bescinded Contract. 
 — ^American Steamship Co. v. Young, 8g 
 
 Pa. St. 186; Lea v. Cassen, 61 Ala. 312: 
 Spring Co. v. Knowlton, 103 U. S. 49; 
 Mannen v. Bradberry, 81 Ky. 153; Greg- 
 ory V. Wendell, 39 Mich. 337. 
 
 But not for money paid for an illegal 
 purpose, as for compounding a crime. 
 Clark V. U. S., 102 U. S. 322; Collins v. 
 Lane, 80 N. Y. 627; Haynes v. Rudd, 83 
 N. Y. 251; O'Reilly v. Cleary, 8 Mo. 
 App. 186; English v. Rumsey, 32 Hun 
 (N. Y.), 486. 
 
 A Consideration that has Failed. — Gar- 
 ber V. Armentrout, 32 Gratt. (Va.) 235;, 
 Wisnerw. Chicago, 6 111. App. 254; John- 
 son V. Krassin, 25 Minn. 117; Walsh v. 
 Rogers, 15 Neb. 309; Houghton 'v. Owen, 
 60 N. H. 125; Lambert v. Short, 36 La. 
 Ann. 477; Barton v. Faherty, 3 Iowa, 327. 
 
 1. Hinkley v. Fowler, 15 Me. 285; 
 Andrews o. Callander, 13 Pick. (Mass.) 
 484; Youngj/. Preston, 4 Cranch(U. S.), 
 239; McManus v. Cassidy, 66 Pa. St. 
 260; Miller v. Watson, 5 Cowen (N. Y.), 
 195. 
 
 Foreign Judgment. — A simple contract 
 debt is not merged in a foreign judgment. 
 Hall w. Odber, 11 East, 118; Lyman v. 
 Brown, 2 Curt. (U. S.) 559; Taylor v. 
 Bryden, 8 Johns. (N. Y.) 173. See Baber 
 V. Harris, i P. & D. 300; Leslie v. Wil- 
 son, 6 Moore, 415; Cram v. Bangor 
 House, 3 Fairf. 354. 
 
 Invalid Specialty. — Where a contract 
 under seal is invalid or rescinded, and 
 there is evidence of an implied contract, 
 assumpsit lies. Hitchcock v. Lukens, 8 
 Porter (Ala.), 333; Little v. Morgan, 31 
 N. H. 499; Pierce v. Lacy, 23 Miss. 193; 
 Brown v. Gauss, 10 Mo. 265; Hill v. 
 Green, 4 Pick. (Mass.) 114; Mill Dam 
 Foundry v. Hovey, '21 Pick. (Mass.) 417. 
 
 Statute, — Assumpsit lies for money due 
 under a statute. Pawlet v. Sandgate, 19 
 Vt. 621; Bath V. Freeport, 5 Mass. 325; 
 Watson V. Cambridge, 15 Mass. 286. 
 
 Corporations. — The English rule that 
 assumpsit does not in general lie against 
 a corporation, as the latter cannot con- 
 tract by parol, is much restricted in this 
 country, the reason therefor not existing; 
 and a corporation may be sued on an im- 
 plied promise as well as an individual. 
 Smith V. Meeting House, 8 Pick. (Mass.) 
 178; Baptist Ch. v. Mulford, 3 Halst. (N. 
 J.) 182; Canal Co. v. Knapp, 9 Peters 
 (U. S.), 541; Sheldon v. Fairfax, 21 Vt. 
 102; B^ink V. Macomber, 29 Me. 564; 
 
 887 
 
Hew Agreement — Merger. 
 
 ASSUMPSIT. Where Tort waived— Legacy. 
 
 9. New Agreement or Consideration. — But where a new agreement, 
 not under seal, is entered into wliich embraces or supersedes the 
 contract contained in the specialty or recorded instrument, the 
 whole is then regarded as a simple contract, and assumpsit will lie -^ 
 and so also where a new consideration, such as forbearance, has 
 intervened, a promise, not under seal, made thereon will be suffi- 
 cient to support an action.** 
 
 10. Merger. — Where a higher security is accepted in satisfaction 
 of a simple contract debt the latter is merged, and no action 
 thereon can be sustained ;* but where the former is merely col- 
 lateral to the principal debt assumpsit will lie.* 
 
 11. Where Tort may be Waived. — Though the action does not in 
 general lie in cases of tort, yet in many of these cases the tort may 
 be waived and assumpsit sustained against a defendant who has 
 wrongfully taken or retained possession of the money or goods of 
 another, and has profited in some manner thereby, as by selling 
 them,^ etc. 
 
 12. Legacy and Distributive Share. — Assumpsit will not lie for a 
 
 Palmeri/. Ins. Co., 20 Ohio, 537; Dan- 
 forth V. Turnpike Co., 12 Johns. (N. Y.) 
 227; Savings Banl£ v. Davis, 8 Conn. 
 202; Whitehall v. Whitehall, 3 S. & R. 
 (Pa.) 117; Kortwright v. Com. Bank, 20 
 Wend. (N. Y.) 91 ; Waller v. Bank of Ky., 
 3 J. J. Marsh. (Ky.) 205; Wyman v. 
 Amer. Powder Co., 8 Cush. (Mass.) 168; 
 Angell &. Ames Corp. § 237. 
 
 1. Lawall V. Rader. 24 Pa. St. 283; 
 M'Voy V. Wheeler, 6 Porter (Ala), 20t; 
 Lattimore v, Hansen, 14 Johns. (N, Y.) 
 230; Munroe v. Perkins, 9 Pick. (Mass.) 
 298; Schack V. Anthony, I M. & Sel. 
 575; Smith V. Smith, 45 Vt. 433; Kingi/. 
 Lamoille Val. R. Co., 51 Vt. 369. 
 
 Where the contract was varied by 
 parol, held the action was maintainable 
 with respect to the terms so varied. Mill 
 Dam Foundry©. Hovey, 21 Pick. (Mass.) 
 417. 
 
 2. White V. Parkin, 12 East, 578; 
 Monroe v. Perkins, 9 Pick. (Mass.) 298; 
 Andrews v. Montgomery, 19 Johns. (N. 
 Y.) 162; Landis v. Urie. 10 S. & R. (Pa.) 
 321. See Russelz/. Haddock, i Lev. 188; 
 Duncan v. Kirkpatrick, 13 S. & R. (Pa.) 
 Z98. 
 
 3. Unless such security be void or in- 
 operative. I Saund. 295, note i; Scurfield 
 V. Gowland, 6 East, 241; M'Crillis v. 
 How, 3 N. H. 348; Hammond v. Hop- 
 ping, 13 Wend. (N. Y.) 505. 
 
 4. WiUoughby v. Spear, 4 Bibb (Ky.), 
 397; Hills V. Elliott, 12 Mass. 26; Snow 
 -V. Thomaston Bank, 19 Me. 269. 
 
 6. Jones v. Hoar, 5 Pick. (Mass.) 289; 
 Gardiner Mfg. Co. v. Heald, 5 Greenl. 
 (Me.) 381; Carleton v. Haywood, 49 N. 
 H. 314; Brown v. Holbrook, 4 Gray 
 
 (Mass.), 102; Whitwall v. Vincent, 4 
 Pick. (Mass.) 452; Stearns w. Dillingham, 
 22 Vt. 624; Morrison v. Rogers, 2 Scam. 
 317; Gray v. Griffiths, 10 Watts (Pa.), 
 431; Budd V. Heiler, 27 N. J. L. 43; 
 Webster v. Drinkwater, 5 Greenl. (Me.) 
 319; Watson V. Stever, 25 Mich. 386; 
 Isaacs V. Hermann, 49 Miss.. 449; John- 
 ston V. Salisbury, 61 111. 316; Bethlehem 
 V. Perseverance Fire Co., 81 Pa. St. 445; 
 Wagner v. Peterson, 83 Pa. St. 238; 
 Miller V. King, 67 Ala. 575. 
 
 The plaintiff cannot recover unless the 
 goods have been sold by the defendant. 
 Jones V. Hoar, 5 Pick. (Mass.) 289; 
 Hambly v. Trott, Cowp. 371; Smith v. 
 Hatch, 46 N. H. 146; Tolan v. Hodge- 
 boom, 38 Mich. 624. Contra, Hill v. 
 'Davis, 3 N. H. 384; Gordon v. Bruner, 
 49 Mo. 570; James v. Buzzard, Hempst. 
 (Cr. S.) 240; Alsbrook v. Hathaway, 3 
 Sneed (Tenn.), 454; Hawk v. Thorn, 54 
 Barb. (N. Y.) 164. As to exchange, see 
 Fuller V. Duren, 36 Ala. 73. 
 
 Effect of Election. — If the tort has once 
 been waived, the defendant cannot af- 
 terwards be treated as a wrongdoer. 
 Lythgoe v. Vernon, 5 H. & N. 180. 
 
 So if he has been sued in tort and 
 judgment has been recovered against 
 him, he cannot afterwards be sued in 
 assumpsit. Floyd v. Brown, i Rawle 
 (Pa.), 121. 
 
 But declaring in tort will not render 
 one liable who would not have been so 
 ori his promise, the ground of the action 
 being assumpsit. Green v. Greenbank, 
 2 Marsh, 485; Bretherton v. Wood, 3 B. 
 & B. 62. 
 
 Rents. — Rents tortiously received may 
 
Pleading. 
 
 ASSUMPSIT. 
 
 Declaration — Pleas, 
 
 pecuniary legacy payable out of the testator's assets, or for a dis- 
 tributive share of an intestate's property.^ 
 
 13. Pleading. — Declaration. — The declaration must set forth the 
 promise either expressly or by strong implication,* the considera- 
 tion on which the contract was founded,* and the breach.* In 
 cases of reciprocal or dependent contracts, performance, or readi- 
 ness to perform on the plaintiff's part, must also be averred.^ 
 Damages must be laid sufficient to cover the whole amount 
 claimed. 
 
 Pleas. — Under the general issue — non-assumpsit — evidence may 
 be introduced to show either that the plaintiff never had a cause 
 of action or that matters of discharge or satisfaction have inter- 
 
 4. Williams v. Staton, 13 Miss. 347; 
 Benden v. Manning, 2 N. H. 289. 
 
 5. Parker v. Parmele, 20 Johns. (N. 
 Y.) 130; Smith V. Woodhouse, 2 New 
 Rep. 233. 
 
 When Performance must be averred in 
 the Declaration. — The rules on this sub- 
 ject are as follows: 
 
 (i) Where the day appointed for the 
 defendant's payment or other action was 
 to happen before the day on which the 
 consideration was to be performed, the 
 plaintiff need not aver performance. 
 Robb V. Montgomery, 20 Johns. (N. Y.) 
 15; Couch V. IngersoU, 2 Pick. (Mass.) 
 292; Smith V. Woodhouse, 2 New. 233. 
 
 (2) Where the day of the defendant's 
 performance is to happen after the time 
 of the consideration, performance of the 
 latter must be averred. Zerger v. Sailer, 
 6 Binn. (Pa.) 24; M'lntire v. Clark, 7 
 Wend. (N. Y.) 330; Bank v. Hagner, i 
 Pet. (U. S.) 467; unless the defendant 
 has disabled himself. Newcomb v. 
 Brackett, 16 Mass. 161; Johnson v. 
 Caulkins, i Johns. (N. Y.) 116; Clark v. 
 Moody. 17 Mass. 149. 
 
 (3) Where the plaintiff's stipulation 
 constitutes only a part of the considera- 
 tion and the defendant has received a 
 partial benefit and the plaintiff's breach 
 maybe compensated in damages, there 
 performance need not be averred. I 
 Saund. 320, b; Boon v. Eyre, i Hen. 
 Bla. 273. 
 
 (4) Where the mutual covenants con- 
 stitute the whole consideration on both 
 sides, they are mutual conditions, and 
 performance must be averred. Harrison 
 V. Taylor, 3 Marsh, 168; Tanner v. 
 Beareford, i Bay (S. C), 237; Leonard 
 V. Bates, I Blackf. (Ind.) 175; Bean v. 
 Atwater, 4 Conn. 3; Tinney v. Ashley, 
 15 Pick. (Mass.) 552. 
 
 (5) Where two acts are to be done at 
 the same timp, as where one covenants 
 to convey an estate or to deliver goods 
 on a certain day, and the other to pay on 
 
 ) be recovered in this action. Boyter v. 
 Dodsworth, 6 T. R. 683; Lindon v. 
 Hooper, Cowp. 414. 
 
 1. Deeks v. Strutt, 5 T. R. 690; Jones 
 V. Tanner, 7 B. & C. 544. 
 
 Otherwise as to a legacy in many of 
 the States. Farwell v. Jacobs, 4 Mass. 
 635; Cowdin It. Perry, n Pick. (Mass.) 
 503; Knapp V. Hanford, 6 Conn. 176; 
 Clark V. Herring, 5 Bin. (Pa.) 33; Cowell 
 V. Oxford, 6 N. J. L. 432; Prescott v. 
 Morse, 62 Me. 447; Kelsey v. Deyo, 3 
 Cowen (N. Y.), 133. 
 
 And as to a distributive share, see 
 Harris v. Harris, 2 Harr. (Del.) 354; 
 Holloback w. Van Buskirk, 4 Dall. (Pa.) 
 
 147- 
 
 8. Avery v. Inhab. of Tyrr^ngham, 3 
 Mass. 160. See Cook v. Sims, 2 Cal. 39; 
 Muldrows V. Tappan, 6 Mo. 276; Bruner 
 ■a. Stout, Hard(Ky.), 225; Grant v. Jack- 
 son, Kirby (Conn.), 90; Roget v. Merritt, 
 2 Ca. (N. Y.) 117. 
 
 As to this defect being cured by ver- 
 dict or judgment, see Clark v. Reed, 20 
 Miss. 554; Hoard v. Little, 7 Mich. 468. 
 
 3. Douglass '». Davie, 2 McC. (S. C.) 
 218; Burnet v. Biscoe, 4 Johns. (N. Y.) 
 235; Lansin v. M'Killip, 3 Caines (N.Y.), 
 288; Beauchamp v. Bosworth, 3 Bibb 
 (Ky.),ii5; Beverleys v. Holmes, 4 Munf. 
 (Va.) 95; Hendrick v. Seeley, 6 Conn. 
 176; Brooke v. Lowrie, i Nott. & M. 
 (S. C.) 342; De Forest v. Frary, 6 Cowen 
 (N.Y.), 151; Tavori'. Philbrick, 7 N. H. 
 326; Hemmenway v. Hicks, 4 Pick. 
 (Mass.) 497; People's Bank v. Adams, 
 43 Vt. 195; Davison v. Ford, 23 W. Va. 
 617. 
 
 Otherwise as to actions on bills of ex- 
 change and promissory notes, the con- 
 sideration there being implied. Peaveley 
 V. Boatwright, 2 Leigh (Va.). 198. 
 
 As to bank-notes, see Gilbert v. Nan- 
 tucket Bank, 5 Mass. 97. 
 
 As to noies not negotiable, see Jerome 
 w. Whitney, 7 Johns. (N. Y.) 321; 
 Odiorne *. Odiorne, 5 N. H. 316. 
 
Verdict and Judgment. 
 
 ASS UMPSIT—A T. 
 
 Definition. 
 
 vened before the bringing of the action ;i in short, the question 
 in assumpsit upon the general issue is whether there was a sub- 
 sisting debt or cause of action at the time of commencing the 
 suit.* In many of the States, purely equitable defences are ad- 
 mitted under this plea, and matters of set-off and recoupment 
 may be shown under the plea of payment, in accordance with the 
 provisions of local statutes.^ 
 
 14. Verdict and Judgment. — The verdict, if for the plaintiff, must 
 be for a sum certain as damages, that sum not to exceed the amount 
 named in the declaration.* Judgment in such a case is that the 
 plaintiff recover his damages and costs against the defendant. 
 
 ASSURANCE. See INSURANCE. 
 
 AT. — The definition of at has been frequently the subject of 
 legal adjudication. It has been held equivalent to " in" or " with- 
 in ;" ^ to " in" or " near ;" ® to " into." ** Constructions given to 
 
 the same day or generally, neither can 
 maintain an action without showing per- 
 formance or an offer to perform on his 
 part, or at least readiness to do so, 
 though it is not certain which was obliged 
 to do the first act. Dana v. King, 2 
 Pick. (Mass.) 156; Kilgour v. Miles, 7 
 Gill & Johns. (Md.) 268; Champlin v. 
 Rowley, 13 Wend. (N. Y.) 258; Green v. 
 Reynolds, 2 Johns. (N. Y.) 207; Vankirk 
 V. Talbot, 4 Blackf. (Ind.) 367. 
 
 1. Wilt V. Ogden, 13 Johns. (N. Y.) 
 56; Young V. Black, 7 Cranch (U. S.), 
 565; Craig w. Missouri, 4 Pet. (U. S.)426. 
 
 2. Tidd, 699, 700. 
 
 The effect of the general issue was 
 much restricted in England by the Reg. 
 Gen. Hil. T. W. 4 (see i Chit, on PI. 
 512 et seq.), before the old system of 
 pleading was abolished. 
 
 3. Nichols v. Alsop, 6 Conn. 477; 
 Blessing v. Miller, 102 Pa. St. 45. 
 
 4. Tidd, 9th Ed., 896; Tenant v. Gray, 
 5 Munf. (Va.) 494; Harris v. Jaffray, 3 
 Har. & J. (Md.) 546; Hoit v. Malony, 2 
 N. H. 322; Silzell V. Michael, 3 W. & S. 
 (Pa.) 329; Grether f, Klock,39Conn. 133. 
 
 See in general Tidd's Practice, 2 et seq.; 
 I Chitty on Pleading, 98-108, 289-360, 
 47S> 513. etc.; 2 T. & H. Pr. (Pa.) 2-16. 
 
 5. Where it was required by charter 
 that a railroad should commeace near or 
 at a city bounded northerly by the centre 
 of a river, it was held that thereby au- 
 thority was given to commence it in the 
 city, and to carry it across the river by a. 
 bridge. Mohawk Bridge Co. v. Railr. 
 Co., 6 Paige (N. Y.), 554. 
 
 "At the parish of Caddo" was held 
 equivalent to "in the parish of Caddo," 
 in State v. Nolan, 8 Rob. (La.) 517. 
 And see Ches. & Ohio Canal Co. v. Key, 
 3 Cranch C. C. (U. S.) 606, cited /oj^ p. 
 891 (At and from). 
 
 6. Where in an action for assault and 
 battery the venue was laid "at Monte- 
 bello, in the county of Hancock," and 
 the assault was proved to have been 
 committed five miles off from Monte- 
 bello, held, that "at" means either "in" 
 or "near," and by considering it as lay- 
 ing a venue and not descriptive of the 
 place, no variance existed between the 
 declaration and the proof. Hurley v. 
 Marsh, i Scam. (111.) 329. 
 
 A statute making it unlawful to play 
 cards, dice, etc., "at any tavern" means 
 "in or ne^ar" such tavern. Ray z^. State, 
 50 Ala. 172. 
 
 An act exempting from taxation land 
 "at the terminus" of a company's road 
 was held to mean " near the terminus." 
 "Its primary idea, t]ie lexicographers 
 say, is nearness, and it is less definite than 
 " in" or " on." In this latter sense it was 
 doubtless used in the act now under con- 
 sideration." State V. Receiver of Taxes, 
 38 N. J. L. 299. 
 
 A company was ordered to appear on 
 parade "at or near" a certain house. 
 Held, that the place was suflSfciently desig- 
 nated. "The words ' at ' and ' near ' are in 
 this connection synonymous. The word 
 at is used ' to denote near approach, 
 nearness or proximity.' Richardson's 
 Eng. Diet. ' In general, "at" denotes near- 
 ness of presence;' as, at the ninth hour; 
 at the house may be in or near the house.' 
 Webster's Diet. This exception must be 
 overruled." Bartlettt/. Jenkins, 22 N.H.63. 
 
 "At the dwelling house" was held to 
 express the idea of " nearness of place," 
 and to be less definite than " in" or " on 
 the house." Kibbe v. Benson, 17 Wall. 
 (U. S.) 624, cited post, p. 893 (At thb 
 Dwelling-house). 
 
 7. By the articles of association the 
 object of the company was stated to be 
 
 890 
 
Constructions. 
 
 AT. 
 
 Constructions. 
 
 particular phrases in which the word occurs may be found in the 
 note.* 
 
 to construct a road to commence in 
 Brooklyn and to terminate "at New- 
 town, Queen's County." Thie township 
 of Newtown borders on Brooklyn, but 
 there is a village of the same name twen- 
 ty-five miles from the starting-place of 
 the road. Held, that even if " Newtown" 
 be construed to mean the "township of 
 Newtown," there was nothing in the ar- 
 ticles to sanction a construction which 
 would terminate the road at the boundary 
 between Brooklyn and Newtown. "The 
 natural interpretation of this language 
 certainly is that the road is to be built 
 into Newtown." Mason v. Brooklyn, 
 etc. R. Co., 35 Barb. (N. Y.) 378. 
 
 1. "At and from" a Port. — 'What is 
 the true construction of these words in 
 policies must in some measure depend 
 upon the state of things and the situation 
 of the parties at the time of underwriting 
 the policy. If at that time the vessel be 
 abroad in a, foreign port, or expected to 
 arrive at such port in the course of a 
 voyage, the policy by the word ' at ' will 
 attach upon the vessel and cargo from 
 the time of her arrival at such port. If, 
 on the other hand, the vessel has been a 
 long time in such port without reference 
 to any particular voyage, the policy will 
 attach only from the time that prepara- 
 tions are begun to be made with refer- 
 ence to the voyage insured. And if the 
 party insured acquired the ownership 
 subsequent to such time and before the 
 date of his policy, then the policy will 
 attach only from the time of acquiring 
 such ownership. If, on the other hand, 
 the ship be at a home port at the time of 
 effecting such insurance, the policy 
 seems generally to be deemed to attach 
 only from the date of the policy." Story, 
 J., in Seamans v. Loring et al., I Mas. 
 (U. S.) 140. 
 
 In a homeward policy these words are 
 to be construed in their natural geo- 
 graphical sense without reference to the 
 expiration of an outward policy "to" the 
 same place, and therefore the policy at- 
 taches as soon as the vessel arrives with- 
 in the port named and although not 
 safely moored. Accordingly where a 
 vessel insured "at and from" Havana 
 was injured by coming in contact with 
 an anchor, after entering the harbor, and 
 whilst passing over a shoal up to her 
 place of discharge, it was held that the 
 policy had attached. Haughton v. Ins. 
 Co., L. R. I Ex. 206. See also Foley v. 
 United, etc., Ins. Co., L. R. 5 C. P. 155, 
 where the policy was held to attach be- 
 
 fore the whole of the cargo "at" Mauri- 
 tius had been discharged. 
 
 A policy of insurance " at and from an 
 island " protects a vessel in sailing from 
 port to port in order to take in a cargo^ 
 Dickey v. Baltimore Ins. Co., 7 Cranch 
 (U. S.) 327. 
 
 And where a vessel insured "at and 
 from" a foreign port, after leaving the 
 same and being found leaky, returned, 
 was repaired and sailed again, it was 
 held that the insurer was liable while 
 the vessel was in port, after her re- 
 turn, and during the subsequent voyage. 
 Taylor v. Lowell, 3 Mass. 331; Merch- 
 ants' Ins. Co. z/. Clapp, 11 Pick. (Mass.) 
 56; Deblois v. Ocean Ins. Co., 16 Pick. 
 (Mass.) 303. 
 
 And such a policy will attach though 
 the ship at the time be undergoing ex- 
 tensive repairs, so as to be utterly un- 
 seaworthy lor a voyage. M'Lanahan «/.. 
 Universal Ins. Co., i Pet. (U. S.) 184. 
 
 But in such a voyage policy it is an 
 implied understanding; that the ship shall 
 be at the port within such a time that 
 the risk shall not be materially varied;; 
 and if there is delay beyond such time, 
 the policy does not attach. De Wolf v.. 
 Bank & Ins. Co., L. R. 9 Q. B. 451. 
 
 " At and from " in a charter. — These- 
 words were held not to have an exclusive 
 signification in a charter for a '' navi- 
 gable canal from the tide-water of the 
 river Potomac, . . . [to] begin at the 
 District of Columbia." "'At' inordi- 
 nary speech more generally means with- 
 in than without. Thus at a town or at 
 a county means at some place within the 
 town or within the county, rather than a 
 place without or even at the utmost verge • 
 of, but not in the town or county."" 
 Ches. & Ohio Can. Co. v. Key, 3 Cranch, 
 C. C. (U. S.) 606. 
 
 At large. — A dog, loose, foUowing- 
 his master through the public streets at 
 such it distance that such control could 
 not 'be exercised as would prevent mis- 
 chief is " at large." Com. v. Dow, 10 
 Mete. (Mass.) 382. 
 
 To be "at large without a keeper"" 
 means, without the charge of any one 
 having the right to control; and such 
 charge does not imply necessarily physi- 
 cal power of control, but voice, gest- 
 ures, etc. Jennings v. Wayne, 68 Me. 
 468. 
 
 A dog at play with his owner's son 
 upon his owner's land is not "at large"" 
 within the meaning of an act authorizing- 
 the killing of dogs "going at large."" 
 
 891 
 
■Constructions. 
 
 AT, 
 
 Constructions. 
 
 iMcAneany v. Jewett, lo Allen (Mass.), 
 151. 
 
 Also, in old practice, "not limited to 
 -any particular matter, point, or question, 
 as a special verdict is a 'verdict at 
 large.' " Burr. L. Diet. 
 
 At law. — Where a statute declares that 
 a deed or other instrument shall not be 
 valid "at law," it does not mean simply 
 that it shall be held invalid in a court of 
 law only, but in all courts, equitable as 
 well as legal. Fleming v. Burgin, 2 
 Ired. Eq. (N. Car.) 589. 
 
 According to law; by, for, or in law. 
 Applied exclusively to the English com- 
 mon law and corresponding to "in 
 -equity." Burr L. Diet. 
 
 At least. — These words in the phrase 
 "eight feet wide at least" "import un- 
 -certainty; and it is obvious on which 
 side the uncertainty lies. The words 
 ' fully, or not less than,' would have the 
 same effect, as they would express that 
 the grantee would have eight feet certain, 
 and more if more should be indispens- 
 able, but eight at all events whether in- 
 -dispensable or not." Roberts v. Wil- 
 •cock, 8 W. & S. (Pa.) 470. 
 
 At merchant's risk. — It was stipulated 
 in a charter-party that the "ship should 
 be provided with a deck cargo if re- 
 -qulred at full freight, but at merchant's 
 risk." Held, that the words "at mer- 
 chant's risk" did not exclude the right of 
 the charterers to general average contri- 
 bution from the ship-owners in respect 
 of deck cargo shipped by the charterers, 
 and necessarily jettisoned to save the 
 -ship and the rest of the cargo. Burton 
 ^. English, L. R. 12 Q. B. D. 218. 
 
 At or near. — Under a charter which 
 fixes one terminus of a railroad "at or 
 Tiear" a certain point, a large discretion 
 . is conferred upon the railroad company 
 in locating their road, the exercise of 
 which will not be revised by the court 
 -unless they have clearly exceeded its 
 just limits or acted in bad faith; and 
 where a charter authorized a railroad 
 -company to construct a railroad "from a 
 point at or near the present terminus of 
 its track," a location starting at a point 
 -2475 feet by the line of the railroad 
 northerly from the termination of the old 
 track was held authorized. Fall River 
 Co. V. Old Colony R. Co., 5 Allen (Mass.), 
 221. 
 
 In the return of a road made by sur- 
 veyors the statement that it was to begin 
 "at or near" a certain corner of land 
 was held too vague. Griscom v, Gil- 
 more, I Har. (N. J.) 105. Otherwise, in 
 .an application for a road. State v. 
 IJorthrop, 3 Har. (N. J.) 275. 
 
 "At" and "near" held synonymous. 
 See Bartlett v. Jenkins, 22 N. H. 63, 
 cited supra, n. 2. 
 
 At, in, or near. — A testator devised 
 all his messf'ges, tenements or dwell- 
 ing-houses, and buildings situate " at, in, 
 or near" Snig Hill in Sheffield which he 
 had lately purchased from the Duke of 
 Norfolk. The testator had six houses at 
 Sheffield, all purchased from the Duke, 
 and comprised in one conveyance, four 
 of which houses were distant about 
 twenty yards from Snig Hill, and the re- 
 maining two about four hundred yards 
 therefrom. He had redeemed the land tax 
 for all the houses by one contract. It 
 was held that the devise did not com- 
 prise the two latter houses, part only of 
 the description applying to them and 
 there being other houses to which the 
 whole of the description did apply. 
 Doe d. Ashforth v. Bower, 3 B. & A. 453. 
 See Attwater v. Attwater, 18 Beav. 330; 
 Newton v. Lucas. 6 Sim. 54. 
 
 At or upon. — On a bond conditioned 
 for payment of a sum " at or upon" a cer- 
 tain day, a tender before that day is good 
 in discharge of the same. M'Hard v. 
 Wheicroft, 3 Har. & M. (Md.) 85. 
 
 At once, in a contract to furnish 
 building materials "not exceeding the 
 value of f 2000, at once, " means "at one 
 and the same time." Platter v. Green, 
 26 Kan. 268. 
 
 At their death. — Bequest of residue, 
 the interest thereof to be paid toC. and J. 
 equally for their lives, and "at their 
 death" the principal to be divided be- 
 tween the children of C. and J. Held, that 
 the words "at their death" meant "at 
 their respective deaths," and that, on the 
 death of C, the moiety to the interest of 
 which C. had been entitled became di- 
 visible among his children. Wills v. 
 Wills, L. R. 20 Eq. 342. 
 
 "At his death" was held equivalent 
 to "on his death" in a devise over, and 
 to entitle the first devisee, to an estate in 
 fee with an executory devise over in case 
 he left no issue living "at his death." 
 Parker v. Birks, I K. & J. 156. See 
 Stratford v. Powell, i Ba. & Be. i; 
 Rackstraw v. Vile, i S. & St. 604. 
 
 At the trial. — A judge's certificate 
 directed by statute to be granted " at the 
 trial of the cause," in order to enable the 
 plaintiff to recover more costs than dam- 
 ages, is in time if granted four days 
 after the trial. " The words . . . can- 
 not be expounded literally because the 
 certificate cannot be granted at the trial, 
 but only after the trial, when the jury 
 have found their verdict." Johnson v. 
 Stanton, 2 B. & C. 621. 
 
Constructions. 
 
 AT. 
 
 Constructions.. 
 
 But where by a statute regulating ap- 
 peals the judge was directed, "at the 
 trial or hearing" of the cause, at the re- 
 quest of either party to make a note of a 
 question of law, etc., it was held that the 
 request must be made during or immedi- 
 ately at the end of the trial or hearing, 
 and if not made until an hour and a half 
 after judgment was too late. Pierpoint 
 V. Cartvvright. L. R. 5 C. P. D. 139. 
 
 At sea. — A vessel is to be deemed 
 " at sea" within the terms of a policy of 
 insurance while in a foreign port, having 
 been captured and carried there against 
 the will of the master. Lord -u, Dall, 12 
 Mass. 115; s. c, 7 Am. Dec. 38; Wood 
 ■V. N. E. Ins. Co., 14 Mass. 31. 
 
 Where a clause in a time policy ex- 
 tends the insurance beyond the term 
 named if at the expiration thereof the 
 ship is "at sea," this contemplates her 
 pursuing her voyage, and on her way to 
 some port, intermediate or final, and 
 does not cover the entire period till her 
 final return to her home port. Gookin 
 V. N. E. Mut. Mar. Ins. Co., 12 Gray 
 (Mass.), 501. Compare Eyre v. Mar. Ins. 
 Co., 6 Whar. (Pa.) 247. 
 
 "The term 'at sea 'may have differ- 
 ent meanings according to the connec 
 tion in which it is used. Here it is used 
 in contradistinction to 'arrival in port.' 
 If the vessel has sailed or commenced 
 her voyage from one port to another, she 
 must be considered to be at sea, within 
 the meaning of this clause, from the com- 
 mencement to the termination of that 
 voyage, although during parts of it she 
 may have sought shelter in a place on 
 the way." Shaw, C. J., in Bowen v. 
 Hope Ins. Co., 20 Pick. (Mass.) 278. 
 
 A vessel is "at sea" when she is ac- 
 tually on her voyage. , Union Ins. Co. 
 ■u. Tysen, 3 Hill(N. Y.), 118. 
 
 And she is so within the acts of Con- 
 gress of 1813 and 1B19 when without 
 the limits of any port or harbors on the 
 sea-coast. The Harriet, I Story (U. S.), 
 251, 259. 
 
 At the end of one year was held to 
 mean at the expiration of " one full and 
 entire year," and "at" to be equivalent 
 in meaning to " after." Annan v. Baker, 
 49 N. H. 169. 
 
 At this date in a receipt for " vari- 
 ous payments,'' cannot by itself be con- 
 strued to mean " up to this date." Moore 
 V. Korty, 11 Ind. 343. 
 
 At the date of its passage, in an act 
 declaring that the "act to increase the 
 pay of the soldiers, etc., shall not be so 
 construed as to increase the emoluments 
 of the commissioned officers of the army 
 
 at the date of its passage" was held not 
 to have any retrospective or retroactive 
 effect. Bassett v. U. S., 2 Ct. of CI. 
 (U. S.) 450. 
 
 "At" in a Bill of Exchange. — In an in- 
 strument in the form of a bill of ex- 
 change, "at" before the drawees' names, 
 was held equivalent to "to," so as to 
 support a declaration on a bill of ex- 
 change, or perhaps on a promissory note, 
 at the option of the holder. Shuttle- 
 worth V. Stephens, i Camp. 407. See- 
 Allan V. Mawson, 4 Camp. 115. 
 
 At the pit's mouth. — Where the les- 
 see of a coal-mine covenanted to pay a. 
 moiety of all such sums of money as the 
 coals there raised should sell for "at the 
 pit's mouth," it was held that he was not. 
 liable to pay any part of the money pro- 
 duced by sale of the coals elsewhere. 
 Gerrard v. Clifton, 7 Term, 676, re- 
 versing I Bos. & Pul. 524. 
 
 At the warehouse. — A covenant to- 
 deliver tobacco at a warehouse does not. 
 require the covenantor to put it in the- 
 house. 5 T. B. Mon. (Ky.) 374; s. c, 4 
 Wheel. Am. C. L. 54. 
 
 At an office or banking-house. — The 
 clause of the National Currency Act of 
 1864 which directs that the "usual busi- 
 ness" of the banks created under it shall 
 be transacted at an office or banking-, 
 house in the place specified in its organi- 
 zation certificate, does not prevent 
 the purchase of coin by one bank at the 
 banking-house of another. Merchants'' 
 Bank v. State Bank, 10 Wall. (Ij. S.) 604. 
 At the dwelling-house — Where a 
 statute required that the declaration in 
 an action of ejectment should be served 
 by delivering a copy thereof to the de- 
 fendant or a member of his family "at. 
 the dwelling-house of such defendant," 
 it was held that, a delivery of it to one- 
 who was at the distance of 125 feet from 
 the house and in the corner of a yard of 
 the house was not a compliance with the 
 statute. " It may be delivered to one 
 who is at the dwelling-house merely. 
 This expresses the idea of nearness of 
 place, and is less definite than if it had 
 been said in the house or on the house. . . 
 It is not unreasonable to require that it 
 should be delivered on the steps or on a 
 portico, or in some out-house adjoining 
 to or immediately connected with the 
 family mansion, where, if dropped or 
 left, it would be likely to reach its desti- 
 nation." Kibbe v. Benson, 17 Wall. (U. 
 S.) 624. 
 
 At that time, in a devise, construed.. 
 Doe, Lessee of Cholmondeley v. Maxey„ 
 12 East, 589. 
 
 893 
 
a)efinition. ATTACHMENT. Origin and General Nature.. 
 
 ATTACHMENT. (See also EXECUTION ; Garnishment.) 
 
 1. Definition, 894. Damages, 908. 
 
 Origin and General Nature, 894., 6. Issuing the Writ, 909. 
 
 2. In whose Favor the Process will Object and Requisites, 909. 
 
 Lie, 894. 7. What Property is Subject to At- 
 Attachment will not Lie for Tort, tachment, gii, 
 
 895. Real Estate, gii. 
 
 Unliquidated Damages, 896. Personalty, 913. 
 
 Character of Debt, 896. Exemptions, 914. 
 
 Defects taken Advantage of , 896. 8. Execution and Return of Writ, f)\Z. 
 
 3. Against whom the Process may Is- Kind of Possession, 920. 
 
 ja^, 896. Return, 921. 
 
 Absconding Debtors, 897. Amendment, 922. 
 
 Concealment, 897. 9. Bonds to Dissolve, 923. 
 Non-Residence, 897. ^az/ Bonds, 923. 
 
 4. The Affidavit, ^i. Delivery Bonds, 1)2^. 
 
 Contents, 902. 10. Simultaneous, Successive, and 
 
 Manner of Statement, 904. Fraudulent Attachments, 926. 
 
 5. Attachment Bonds, 905. II. Liability of Officer, 929. 
 
 Object, Form, and Requisites, 905. 12. Property and Rights Affected, gyo. 
 Amendments, 907. 13. Dissolution, 931. 
 
 Liabilities, 908. 14. Notice by Publication, 934. 
 
 1. Definition. — Attachment may be defined to be a provisional 
 remedy whereby a debtor's property, real or personal, or any in- 
 terest therein capable of being taken under a levy and execution, 
 is placed in the custody of the law to secure the interests of the 
 creditor, pending the determination of the cause. 
 
 Origin and General Nature. — Attachment, as it exists in the 
 United States, is derived from the custom of London, as modified 
 by local legislation in accordance with our peculiar wants and ne- 
 cessities. It is essentially a creature of statute, and as the proceed- 
 ing involves the involuntary dispossession of the owner and antag- 
 onizes the common-law idea of proprietary right, the statute upon 
 which it is founded is strictly construed, * and to confer jurisdic- 
 tion it must appear afifirmatively on the record that all the require- 
 ments of the statute have been complied with ; otherwise the 
 proceedings are extra-judicial, and the judgment may be impeached 
 collaterally. In the absence of special legislation enabling the 
 decrees of courts of equity to operate propria vigore upon the 
 subject-matter of the controversy, it cannot issue from a court of 
 equity consistently with the maxim, " Equity acts in personam and 
 not in rem." ** The proceeding partakes largely of the nature 
 of both actions in personam and actions in rem, and hence has 
 been denominated an action in the nature of a proceeding in 
 rem.^ 
 
 2. In whose Favor the Process will Lie. — By the custom of Lon- 
 don all attachments are grounded upon actions of debt, and the 
 debt must be due and of such nature as will sustain an action at 
 
 1. Wade on Auach. §§ 2, 3. in most of the States. For classification, 
 
 2. Wade on Attach. § 5; Pomeroy's see 3 Poraeroy's Eq. Jur. § 1317, n. 2; 
 Eq. Jur. §§ 134, 135; 3 Pomeroy's Eq. American Land Co. z/. Grady, 33 Ark. 550. 
 Jur. g 1317, show such legislation to exist 3. Wade on Attach, g 7, 
 
 894 
 
Who Entitled to 
 
 ATTACHMENT. 
 
 Benefit of Frocesg. 
 
 law.* Formerly, except in New England, resort to this process 
 was almost exclusively restricted to creditors.* A creditor is one 
 who has the right to require'of another the fulfilment of a con- 
 tract or obligation. 3 
 
 Attachment will not -Lie for Tort. — The rights which the pro- 
 cess is designed to secure arise from contract, and, in the absence 
 of statutory provision to the contrary, attachment will not issue 
 in actions founded on tort.* When the action is one sounding 
 in damages, to be recovered for a wrong inflicted upon the plain- 
 tiff by defendant, the mere fact that an action might have been 
 brought for the breach of a contract between the same parties 
 and some of the facts which go to prov.e the breach of contract 
 would be competent evidence of the tortious acts of defendant, 
 will not bring it within the general description of " actions arising 
 upon contract expressed or implied." ^ An important distinction 
 is to be observed in this connection ; for while it is true that 
 every incidental implied contract that is broken in the commission 
 of a wrongi will not convert an action essentially ex delicto into an 
 action ex contractu, the converse of the proposition is equally 
 true. The wrong or even crime committed in connection with a 
 breach of contract will not prevent the bringing of an action for 
 such breach by attachment of property.* In the latter case the 
 party waiVes t)ie tort and sues on the contract express or im- 
 plied.'' 
 
 1. Drake on Attach. (6th Ed.) § g. 
 Equitable debts are not sufficient to 
 
 ground an attachment upon. Such is a 
 legacy which is rec'overable only in the 
 spiritual court or in a court of equity, or 
 dividends due to a creditor from the as- 
 signees under a commission in bank- 
 ruptcy, as well as all trust property ; for 
 the creditor cannot sue for them at law, 
 but must petition the chancellor or file a 
 bill in equity to recover them. Ashby on 
 Attach. 21, 22. 
 
 In New York it has been held that the 
 remedy by attachment could not be re- 
 sorted to in equity actions. Ebner v. 
 Bradford, 3 Abbott Pr. N. S. (N. Y.)248. 
 
 2. In the absence of any statutory pro- 
 vision to the contrary, non-residents, as 
 well as residents, may avail themselves 
 of this process; and when the remedy is 
 allowed only to residents, and the non- 
 residence of plaintiff does not appear on 
 the face of the proceedings, the defend- 
 ant can avail himself of it only by a plea in 
 abatement. Calhoun v. Cozzens, 3 Ala. 
 21; Ward V. McKenzie, 33 Tex. 297. 
 
 3. I Bouvier's Law Diet. 383. 
 
 4. Drake on Attach. (6th Ed.) § 10. 
 
 A statute without expressly providing 
 that attachment shall issue in actions for 
 tort may yet be sufficiently compre- 
 hensive to include such process. Thus, 
 
 in New York, under the Civil Code of 
 Procedure, allowing an attachment " in 
 an action for the recovery of money," 
 conflicting decisions existed until the pro- 
 vision was changed so as to read "in an 
 action arising in contract for the recov- 
 ery of money only, " which leaves no room 
 for using it in actions founded on tort. 
 In Ohio an attachment may issue " in a 
 civil action for the recovery of money " 
 where the defendant has " fraudulently 
 or criminally contracted the debt or in- 
 curred the obligation for which suit is 
 about to be or has been brought;" and it 
 was there held that the term " obliga- 
 tion" there is equivalent to liability, and 
 that an attachment would lie in an action 
 for damages for an assault and battery. 
 Sturdevant v. Tuttle, 22 Ohio St. ill; 
 Creasser v. Young, 31 Ohio St. 57. See 
 also, for good summary of legislation on 
 the subject. Wade on Attach. § 10, n. i. 
 
 5. Wade on Attach. § 12, and cases 
 cited. 
 
 6. Hunt V. Norris, 4 Mart. (La.) 517; 
 Pa. R. Co. V. Peoples, 31 Ohio St. 537; 
 S. C. V. Peat Fuel Co. v. Tuck, 53 Cal. 
 304. 
 
 7. Wade on Attach. § 22. 
 
 Where a railroad company agrees for 
 consideration to carry a passenger over 
 its road, and by its negligence an in- 
 
 895 
 
Against Whom ATTACHMENT. Process may Issue. 
 
 Unliquidated Damages. — In those States where the amount of 
 the claim must be averred in the. affidavit in order to comply with 
 the statutory provision, attachment will not lie for unliquidated 
 damages resulting from the breach of a contract, unless there is 
 something in the contract itself which affords a rule by which they 
 can be estimated.^ 
 
 Character of Debt. — The . debt for which an attachment will lie 
 must be an actually subsisting debt, due or about to become due 
 by efflux of time. If the liability be merely possible, and depend- 
 ent on a contingency which may never happen, attachment does 
 not lie.'^ In the absence of statutory authority the debt must 
 be not only subsisting, but actually due at the time of making the 
 application. 
 
 Defects taken Advantage of. — If the cause of action for which 
 the attachment is obtained be one upon which that process may 
 not be legally issued, the defect may be taken advantage of by 
 a motion to dissolve or a plea in abatement at any time before 
 judgment.^ 
 
 3. Against Whom the Process may Issne. — Attacjiments are gener- 
 ally authorized against absent, absconding, concealed, and non- 
 resident debtors.* The absence must not be merely casual and 
 temporary;''' must be such as will prevent the service of process,-* 
 and indicates a general intent to delay or defraud the creditor.' 
 
 jury results, he may at his election sue before the maturity of the demand, 
 
 upon the contract or in tort; and if he Ware v. Todd, i Ala. 144. 
 
 elects to sue on the contract, attachment 3. Drake on Attagh. (6th Ed.) § 36. 
 
 will lie. Pa. R. Co. v. Peoples, 3 Ohio 4. Drake on Attach. (6th Ed.) § 38. 
 
 St. 537. 5. Drake on Attach. (6th Ed.) § 39; 
 
 1. Clark V. Wilson, 3 Wash. C. C. 568; Fuller v, Bryant, 20 Pa. St. 144; Man- 
 Fisher V. Consequa. 2 Wash. C. C. 382; dell v. Peet, 18 Atk. (Eng.) 236. In Mat- 
 Redwood V. Consequa, 2 Browne (Pa.), ter of Thompson is opposed to the course 
 628; Garland z/. Cunningham, 37 Pa. St. of authority, i Wend. (N. Y.) 43. 
 228, illustrate the application of the 6. This would appear to be the better 
 maxim id certum est quod cerium reddi opinion. In New York the intent to avoid 
 /c^fj^ to this subject. See also Wilson w. the service of process, and in Missouri 
 Louis Cook Mfg. Co., 88 N. Car. 5. the fact that process cannot be served. 
 
 For a good summary of the law in the are made to constitute the ground of ap- 
 
 various States, see Drake on Attach, plication. Kingsland v. Wortham, 15 Mo. 
 
 (6th Ed.) §§ 13-23; Wade on Attach. •§ 12. 657; Ellington v. Moore, 17 Mo. 424; 
 
 Attachment will lie in covenant where Morgan v. Avery, 7 Barb. (N. Y.) 656. 
 
 the damages are purely compensatory. 7. Gibson v. McLaughlin, I Browne 
 
 Wade on Attach. § 13. (Pa.), 292. 
 
 3. Drake on Attach. (6th Ed )gf^ 24, 25; In this State the statute reads, 
 
 Wade on Attach. § 17. "when defendant had absconded or 
 
 Where an attachment is authorized for departed from his abode, or remained 
 
 a debt not due, if the grounds of the at- out of the State with design to defraud 
 
 tachment be peculiar to that case they his creditors," and the "design to de- 
 
 cannot be resorted to for the recovery of a fraud " is the ground of the application, 
 
 debt already due. If with the debt not Evidence of return is admissible, but not 
 
 due there be combined a claim that is due, conclusive, to show that the defendant 
 
 the attachment will be good as to the intended to return at time of departure; 
 
 former but not as to the latter. Levy v. and hence that a statute allowing attach- 
 
 Millmans, 7 Ga. 167. See also Dan- ment when defendant "had departed 
 
 forth, Davis & Co. w. Clarke, I Iowa, 556. from the State, never to return," did 
 
 In the case of a suit for a debt not not apply. New Orleans Banking Co. 
 
 due, it is erroneous to enter judgment v. Comly, i Robinson (La.), 231 ; Reeves 
 
Against Whom 
 
 ATTACHMENT. 
 
 Process may Issue. 
 
 Absconding Debtors.^-Ho abscond, in a legal sense, means to 
 hide, conceal, or absent one's self clandestinely, with intent to 
 avoid legal process.* The act of absconding necessarily involves 
 intention to abscond. Therefore a public and open removal, or 
 a departure unaccompanied with that intention, will not constitute 
 an absconding. Much less will such a departure accompanied 
 with the expressed purpose to return, when there are no suspi- 
 cious circumstances to the contrary.* 
 
 Concealment. ^-Th& concealment which will justify an attach- 
 ment is but a phase of absconding; though sometimes in attach-' 
 ment laws the two acts are set forth separately, so as to indicate 
 that they are regarded as distinct. When, however, the act reads 
 ■" absconds or conceals," or " absconds or secretes," the two acts 
 are regarded as undistinguishable.* The concealment to author- 
 ize an attachment must be with intent to defeat or delay the' 
 claims of creditors by avoiding^ sei'vice- of process,* and must be: 
 averred to be the act of the defendant ^ 
 
 Non-Residence. — Non-residence will authorize an attachment 
 either where the debtor resides in another jurisdiction, or where 
 a resident debtor has changed his abode sine animo revertendi.'* 
 
 ■V. Comly, 3 Robinson (La.), 363; Sim- 
 ons V. Jacob, 15 La. Ann. 425. 
 
 1. S./C. of Tenn. in Bennett v. Avant, 
 2 Sneed (Tenn.), 152. 
 
 The ulterior object of the debtor is, 
 of course, in a majority of cases, to 
 defeat or "delay his creditors; and in 
 States where "design to defraud" is 
 the foundation of the application, fraud- 
 ulent intent must be proved. Gibson v. 
 McLaughlin, i Browne (Pa.), 292. 
 
 When, on the other hand, the obstruc- 
 tion to service of process, or the intent 
 to avoid process, is the statutory ground 
 for the application, it will be sufficient 
 to prove such obstruction or such in- 
 tent, without proving an ulterior motive 
 to defraud creditors. Such was the course 
 in Kingsland v. Wortham, 15 Mo. 657; 
 Morgan w. Avery, 7 Barb. (N.Y.)656; and 
 in Young v. Nelson, 25 111. 565. In the 
 last case it was held also that when a 
 particular act done by a debtor will au- 
 thorize an attachment if coupled with 
 either one of two several intents, and an 
 attachment is obtained on an averment 
 of the doing of the act with one of these 
 intents, it will be sustained by proof of 
 the other. 
 
 2. Drake on Attach. (6th Ed.) § 51; 
 Boardman w.Beckford, 2 Aikens(Vt.),345. 
 
 3. Drake on Attach. (6th Ed.) § 54. 
 
 4. Drake on Attach. (6th Ed.) § 56, 
 Therefore one who conceals himself 
 
 to avoid a criminal prosecution is not 
 within the law. Evans v. Saul, 8 Mart. 
 N. S. (La.) 247. 
 
 5. It must appear positively from the 
 averment that the concealment resulted 
 from the defendant's own misconduct or 
 bad faith, and not from the acts of any 
 other pprson. Hence, under a statute 
 authorizmg attachment " where debtor 
 conceals himself so that process cannot 
 be served upon him," an affidavit that 
 defendant "is concealed," etc., is bad 
 because it did not allege that he con- 
 cealed himself. Winkler v. Barthel, 6 
 Brad well (111.), iii, 
 
 Provided the intent to obstruct process 
 or the actual obstruction be established. 
 the length of time the concealment lasts 
 is wholly immaterial. Young v. Nelson, 
 25 111. 565. 
 
 6. The test of residence would appear 
 to be the presence of the aminus viatjeitdi 
 at the time of the issuing of the writ. 
 Drake on Attach. (6th Ed.) §§ 57 et scq.; 
 Mattee v. Wrigley, 8 Wend. (N. Y.) 134; 
 also Ch. Walworth's remarks. 4Wend. (N. 
 Y.)6o2; Clarke w. Pratt, 18 La. Ann 102. 
 Thus in Brown v. Ashbough, 40 How. 
 Pr. (N. Y.)26o, one Ashbough left Hamil- 
 ton, Canada, where he had resided and 
 done business for several years, on the 
 24th of September, 1870, and went to the 
 State of New York with the intention of 
 taking up his residence there, but his wife 
 still remained in Canada. On the third 
 day of October of that year an attachment 
 was issued against him in New York 
 upon the ground that he was a non-resi- 
 dent. It was held that the defendant 
 was a resident of the State. Heidenbach 
 
 I C. of L.— 58 
 
 897 
 
Against Whom 
 
 ATTACHMENT. 
 
 Froeess may Tssnft. 
 
 V. Schland, lo How. Pr. (N. Y.) 477, is 
 to the same effect. See also Barnet's 
 Case, I Dallas (Pa.), 152; Thurneyssen v. 
 Vouthier, i Miles (Pa.), 422; Kennedy v. 
 Baillie, 3 Yeates (Pa.), 55; Lyle w. Fore- 
 man, I Dallas (Pa.), 480; Smith v. Story, i 
 Humph. (Tenn.) 420; Stratton v. Brig- 
 ham, 2 Sneed (Tenn.), 420; Shipman v. 
 Woodbury, 2 Miles (Pa.), 67; Wheeler v. 
 Degnan. 2 Nott & McC. (S. Car.) 323; 
 Matter of Wrigley, 4 Wend. (N. Y.) 602; 
 Swaney v. Hutchins, 13 Neb. 299. 
 
 Finding of Non-residence Sustained. — 
 Where a question, of the residence or 
 non-residence of the defendant in Kansas 
 on November 12,-1883, js presented to 
 the court on February 11, 1884. as a ques- 
 tion of fact, and the preponderance of 
 the evidence tends to prove thalt in May, 
 1883. the defendant was a resident of 
 Bourbon County, Kansas, owning real 
 and personal property therein, but that 
 at that time he sold n^rly all his house- 
 hold goods, farming utensils, and other 
 personal property; offered his farm for 
 sale, and placed it in the hands of land- 
 agents for that purpose; rented his farm; 
 told many persons that he was going West 
 to hunt another home; did go West to 
 Colorado; and did not return to his farm 
 until November 22, 1883, after an attach- 
 ment had been levied upon it; and then 
 admitted that when he left Kansas in 
 May, 1883, he did not expect to return to 
 make it his home. — held, that such evi- 
 dence is stifficient upon which to make a 
 finding that the defendant was a non-resi- 
 dent of the State of Kansas on Novem- 
 ber 12, 1883, and to sustain the attach- 
 ment issued on the ground of his non- 
 residenre and levied upon the farm afore- 
 said. Riiter v. Phoenix Ins. Co., 32 
 Kan. 504. 
 
 Non-resident. — Under Code 1873, ch. 
 148, § 3. an attachment cannot create a 
 lien on the propprty of a non-resident 
 defendant who has never been a resident 
 of this State. Otherwise as to a non- 
 resident who ha"! but lately absconded 
 from this State, ^ 6 providing that the 
 return shall be " 10 the next term of the 
 circuit, county, or corporation court of 
 the county or corporation wherein the 
 debtor last resided." Long i/. Ryan. 30 
 Gratt. (Va.) 718; Starke v. Scott, 78 Va. 
 1 80. 
 
 A residence or place of abode in this 
 State of a temporary or permanent char- 
 acter, at which a summons might lawfully 
 be served, is the condition on which pro- 
 cess of attachment cannot be issued. If 
 K debtor has not, at the time the writ of 
 attachment is issued, such a place of 
 abode that a summons could be served at 
 
 it, he is a non-resident within the mean- 
 ing of the statute, and may be proceeded 
 against by attachment. Baldwin v. Flaggy 
 43 N. J. L. 495. 
 
 One S. in May, 1881, came from Illi- 
 nois to this State with the intention of 
 abandoning his former residence and re- 
 siding here, but his wife remained in 
 Illinois until October of that year. In 
 January, 1881, an action by attachment 
 was commenced against S. and wife upon 
 the ground that they were non residents. 
 Held, that the attachment could not be 
 sustained. Swaney v. Hutchins, 13 Neb. 
 266. 
 
 Claim before Due. — An attachment 
 issued by the clerk without an order, on 
 a debt before due, on the sole ground 
 that the defendant is a non-resident of 
 the Slate, is null and void, and confers 
 no jurisdiction on the court issuing the 
 same. Philpottw. Newman, 11 Neb. 299. 
 
 In an action by one partner against a 
 copartner to recover one half of the 
 profits of the business of the firm prior 
 to an accounting, or the ascertainment 
 of a balance, where an attachment is sued 
 out by the plaintiff against the property 
 of the defendant on the ground of the 
 non-residence of the latter, held, on a 
 motion to discharge the attachment, the 
 district court has the legal right to inquire 
 and determine whether the alleged cause 
 of action arose wholly within •this State.' 
 Stone v. Boone, 24 Kan. 337. 
 
 Corporations. ^The law of this State 
 providing for the issuance of an attach- 
 ment against a non-resident debtor is not 
 in conflict with section 2, article 4 of the 
 constitution of the United States, which 
 declares that citizens of each State shall 
 be entitled to all privileges and immu- 
 nities of citizens of the several States, 
 nor is it in conflict with the fourteenth 
 amendment of that constitution. Pyro- 
 lusite Co. V. Ward. .73 Ga. 491. 
 
 A corporation is not a citizen. Pyro- 
 lusite Co. V. Ward. 73 Ga. 491. 
 
 Attachment on the ground of non-resi- 
 dence will lie against a foreign corpora- 
 tion when the statute is silent as to dis- 
 tinctions between individuals and corpo- 
 rations. Wade, § 51; Harley v. Charles- 
 ton S. P. Co., 2 Miles (Pa.), 249; Hazard 
 V. Agricultural Bank of Miss., 11 Rob. 
 (La.) 326; Ruthe v. Green Bay Co., 37 
 Wis. 344. 
 
 But it does not lie against persons who 
 hold in a representative capacity unless 
 they have done some act which renders 
 them personally liable. Wade on At- 
 tach. § 53; Thorington v. Merrick, loi 
 N. Y. 5. 
 
 A debt due by a foreign corporation to 
 
Against Whom 
 
 ATTACHMENT. 
 
 Process may Issue. 
 
 one of ils employees at the place of its 
 domicile, not being within the jurisdic- 
 tion of the courts of Alabama, cannot be 
 reached and subjected by a creditor here 
 by attachment against the non-resident 
 debtor and garnishment against the cor- 
 poration. Louisville, etc., R. Co. v. 
 Dboley. 78 Ala. 524. 
 
 Attachment of Property in Hands of 
 Assignee — The trust property m the 
 hands of an assignee, under a general 
 assignment for the benefit of creditors, 
 cannot be taken on attachment in an ac- 
 tion against the assignee personally, 
 although the debt upon which the action 
 is brought was contracted by the assignee 
 in the execution of the trust and consti- 
 tuted an expenditure for which he would 
 have a right to be reimbursed out of the 
 trust estate. Noyes v. Beaupre, 32 
 Minn. 496. 
 
 In several States attachment also lies 
 against debtors who fraudulently con- 
 tracted the debt or incurred the obliga- 
 tion. In such case the fraud must have 
 furnished the ground of the plaintiff's 
 action, and false representations of debtor 
 after he has contracted the debt that he 
 has property from the proceeds of which 
 he will pay does not make the debt frau- 
 dulently contracted. Marqueze v. South- 
 heimer. 59 Miss. 430. 
 
 Frand. — One C, a member of the firm 
 of C. & Co.. went to Chicago and ar- 
 ranged with Y. & Co. to purchase stock 
 for them and draw on them for the nec- 
 essary advances. C. then returned to 
 this State, drew a draft on Y. & Co. for 
 $2000, and wrote to them that he had 
 purchased 125 hogs, and would have 200 
 by Saturday night. Upon these repre- 
 sentations the draft was paid. C. & Co. 
 then sold the hogs to other parties. Held, 
 that an attachment against the property 
 of C. & Co., upon the ground that the 
 debt was fraudulently contracted, would 
 be sustained. Young v. Cooper, 12 Neb. 
 610. 
 
 A debtor who by fraudulently repre- 
 senting himself to be solvent obtains a 
 surrender of his over-due notes, and 
 induces his creditor to accept new notes 
 for the same amounts payable at a future 
 day, fraudulently incurs an obligation, 
 within the meaning of sub-d. 4, sec. 2731, 
 R. S., and renders his properly subject 
 to attachment in an action on such notes. 
 Wachter v. Famachon, 62 Wis. 117. 
 
 The defendant, for the purpose of ob- 
 taining credit, stated that his indebted- 
 ness was a certain sum, when in fact he 
 knew it to be much larger. Upon the 
 faith of the statement the plaintiffs gave 
 him credit. Held, that the transaction 
 
 was a fraud upon the plaintiffs, and was 
 sufficient ground for suing out a writ of 
 attachment. Rosenthal v. Wehe, 58 
 Wis. 621. 
 
 The fraudulent act of a debtor, made 
 the ground of an attachment, must have 
 accrued before or exist at the time the 
 affidavit for the attachment is made by 
 the creditor. Bumberger v. Gerson, 24 
 Fed Repr. 257. 
 
 Debtors Bemoving their Property. — 
 Some of the States have provisions au- 
 thorizing the issue of attachments where 
 the debtor " is removing or about to re- 
 move his property out of the State or 
 dispose of it" to the injury of the cred- 
 itor or before the debt becomes due. In 
 Louisiana, Wisconsin, and Iowa it was 
 held that to entitle the creditor to the 
 attachment the property must be such as 
 the creditor had a right to suppose would 
 remain in the Stale. Hence a steamboat 
 running between States, a raft of pine 
 lumber on its way to market, and a farm- 
 wagon driven across the line for farm 
 purposes were held not proper subjects 
 for attachment. Russell, v. Wilson. 18 
 La. 367; Hurd v. Jarvis, i Pinney (Wis.), 
 475; Warder v. Thielkeld, 52 Iowa, 134. 
 
 In Illinois, Mississippi. Florida, Cali- 
 fornia, and Alabama it was held that the 
 removal must be an injury to the cred- 
 itor, and hence if enough of the defend- 
 ant's property remain to discharge the 
 debt, or if the debt be secured by a mort- 
 gage, attachment will not lie. White v. 
 Wilson, 10 111. 21; Ridgway v. Smith, 17 
 111. 33; Page V. Latham, 63 Cal. 75; 
 Montague v. Gaddis, 37 Miss. 453; Haber 
 ■V. Nassitts. 12 Fla. 589; Stewart v. Cole, 
 46 Ala. 648. 
 
 But in Arkansas, if a debtor is remov- 
 ing his property out of the State, not 
 leaving sufficient to pay all his debts, a 
 creditor may attach, although sufficient 
 be left to pay his debt; and testimony of 
 other debts is admissible to prove the in- 
 sufficiency of the property to pay all. 
 Holliday v. Cohen, 34 Ark. 707. 
 
 Shipping cotton by a debtor of this 
 State to a creditor in another Slate in pay- 
 ment of a debt 'in good faith and with- 
 out fraudulent intent will not authorize 
 an attachment against the debtor's prop- 
 erty, even if he be in failing circum- 
 stances. Rice "u. Pertuis, 40 Ark. 157. 
 Contra, Mack v. McDaniel, 4 Fed. Rep. 
 294. 
 
 In Arkansas the statute declares a 
 creditor may have attachment against his 
 debtor who "is about to remove or has 
 removed his property, or a material part 
 thereof, out of this State, not leaving 
 enough therein to satisfy the plaintiff's 
 
 899 
 
Against Whom 
 
 ATTACHMENT. 
 
 Frocesa may Issue. 
 
 Debtors Bemoving their Property — Continued, 
 
 claim or claim of said defendant's credi-, 
 tors," and the intent to, defraud is imma- 
 terial. Durr V. Hervey, 44 Ark. 301. 
 
 Similar statutes in Kentuclcy and North 
 Carolina are similarly construed. 
 
 The only rational construction of sec- 
 tion 194, subsection 2, Civil Code, is that 
 an attachment is authorized against all 
 the property of the debtor not exempt 
 from execution, whenever he is without 
 enough property subject to execution to 
 satisfy the debt against him, although the 
 debtor may have no design to do any- 
 thing to render the collection of the debt 
 less certain than if an attachment was 
 issued forlhwiih. Burdett v. Phillips, 78 
 Ky. 246. 
 
 The allegations in the afhdavit that the 
 defendant was about to leave the State 
 with a view to defraud his creditors was 
 immaterial in the application for the war- 
 rant of attachment ; such removal is not 
 made a cause for such warrant, but it 
 would be a material allegation in an affi- 
 davit for a warrant of arrest. The Code, 
 §§ 2gi, 34q; Wilson v. Barnhill, 64 N. 
 Car. 121; Halei;. Richardson. 89N.Car.62. 
 
 And the same construction has been 
 given to similar provisions elsewhere. 
 Montague i/.Gaddis, 37 Miss. 454; Runyan 
 •V. Morgan, 7 Humph. (Tenn.) 210; Fried- 
 lander V. Pollock, 5 Cold. (Tenn.) 490; 
 Branch Bank v. White, 12 lofta, 141; 
 SherrlU v. Fay, 14 Iowa, 292. 
 
 When, however, this intent to "de- 
 fraud" or " to delay, hinder, or defraud " 
 by the removal or disposition is the 
 ground of the application, it must be al- 
 leged in the affidavit and proved. Harris 
 & Co. v. Capell, 28 Kan. 117. 
 
 Where an order of attachment has been 
 issued upon an affidavit charging that the 
 defendant had assigned and disposed of 
 his property with a fraudulent intent, and 
 the defendant moves to discharge the at- 
 tachment and files a counter-affidavit 
 positively denying the grounds for attach- 
 ment laid in the plaintiff's affidavit, the 
 burden is upon the plaintiff to sustain the 
 allegations of frapd which he has made; 
 and if he fails to do so by a preponderance 
 of testimony, the attachment should be 
 ■discharged. 
 
 Upon the trial of the motion to dis- 
 charge the attachment, the only testimony 
 offered was a voluntary assignment exe- 
 cuted by the defendant for the benefit of 
 his creditors. To uphold the attachment 
 in such a case, the deed of assignment 
 must clearly show upon its face an 
 actual personal intent on the part of the 
 •defendant to hinder, delay, or defraud his 
 creditors. If the instrument has been 
 
 executed in good faith and solely for the 
 benefit of the creditors, the mere fact that 
 it may be defectively executed, or that it 
 may contain provisions not auihorized by 
 the statute, is not alone sufficient to sus- 
 tain the attachment. 
 
 Fraud is not to be presumed from the 
 provisions of an assignment where it will 
 admit of an interpretation favorable to 
 honesty and good faith. McPike v. At- 
 well, 34 Kan. 142. 
 
 Attachment should be dissolved which 
 contains no positive averment of facts 
 sufficient to show that the mortgage given 
 (the basis of the attachment) was with in- 
 tent to defraud. Ivy v. Caston. 21 S. 
 Car. 583. 
 
 The fact that a debtor designs to sell 
 his property, or to remove it beyond the 
 jurisdiction of a court, when not accom- 
 panied by an intent to defraud his cred- 
 itors, is not ground for an attachment. 
 Hunter w. Soward, 15 Neb. 215. 
 
 The mere fact of a removalof property 
 from the jurisdiction of a particular court, 
 or from the Slate even, unless accom- 
 panied with an intent to defraud creditors, 
 does not give the right of attachment un- 
 der our law. The particular intent men- 
 tioned in the statute is essential to that 
 right. Without such intent a debtor is at 
 full liberty to change his place of abode 
 and go with his effects whithersoever he 
 wills, with all the freedom from lawful 
 molestation of one not indebted. We are 
 of the opinion that the court below took 
 the correct view of the case, and the judg- 
 ment will be affirmed. Steele v. Dodd, 
 14 Neb. 496. 
 
 Section 398, Revised Statutes of Mis- 
 souri, 1879, authorizes attachment to 
 issue in the following, among other 
 cases : (7) Where the defendant has 
 fraudulently conveyed or assigned his 
 property, so as to hinder or delay his 
 creditors. (8) Where the defendant has 
 fraudulently concealed, removed, or dis- 
 posed of his property or effects, so as 
 to hinder, etc. Held, that the word 
 "disposed," as here used, covers all 
 such alienations of property as may be 
 made in ways not otherwise pointed out 
 in the statute; for example, pledges, 
 gifts, pawns, bailments, and other 
 transfers and alienations which may 
 be effected by mere delivery and without 
 the use of any writing, assignment, or 
 conveyance. It does not include any 
 species of conveyance. Hence, a charge 
 that defendant has fraudulently disposed 
 of his property is not supported by proof 
 that he has executed a fraudulent mort- 
 gage. BuUene v. Smith, 73 Mo. 151. 
 
 900 
 
Against Whom Process Issues. A TTACHMENT. 
 
 Affidavit. 
 
 4. Affidavit— The affidavit is the foundation of the jurisdiction 
 of the court ; it must be a sworn statement of such facts as the 
 law requires as a condition precedent to the issue of the writ \^ its 
 entire omission or the omission of any essential fact will render 
 all the proceedings coram nonjudice^ 
 
 Where a defendant, who is in embar- 
 rassed circumstances in regard to his pe- 
 cuniary affairs, executes a fraudulent 
 mortgage to another without any consid- 
 eration therefor, to cover up and conceal 
 his interest in real estate, with intent to 
 defraud and hinder his creditors, such ac- 
 tion is sufficient ground of attachment in 
 favor of any creditor who has a just claim 
 against him. 
 
 The fact that such debtor thereafter 
 offers to give the creditor an additional 
 mortgage upon such property will not 
 defeat proceedings by attachment against 
 him. Taylor v. Kuhuke, 26 Kans. 132. 
 
 A chattel mortgage given wiih the un- 
 derstanding, express or implied, that the 
 mortgagor shall go on selling the prop- 
 erty in the usual course of trade and ap- 
 plying the proceeds to his own use is 
 fraudulent as to his other creditors, and is 
 ground for an attachment. Anderson v. 
 Patterson, 64 Wis. 557. 
 
 Where the affidavit for attachment 
 against the property of a defendant in an 
 action on a claim before it was due al- 
 leged that the defendant was about to 
 make a sale and conveyance of his prop- 
 erty with the fraudulent intent to cheat 
 and defraud his creditors, and to hinder 
 and delay them in the collection of their 
 debts, and plaintiff established upon the 
 hearing of the motion to discharge the at- 
 tachment that a few days prior to the at- 
 tachment the defendant went to a young 
 lady to whom he was engaged, and urged 
 their immediate marriage, giving as his 
 reason for the haste that his business 
 affairs were becoming involved, and that 
 he wanted to deed to her the land on which 
 he lived, and to make over to her his per- 
 sonal property so that nobody could get 
 it away from them; that he showed her 
 his deeds to the land and said that he 
 wanted to go to a neighboring city the 
 next morning to consult his lawyer, and 
 promised, if she would go along with 
 him and be married, that he would make 
 over to her his personal property, held, 
 that the evidence was sufficient to sustain 
 the attachment. Curtis v. Hoadley, 14 
 Neb. 566. 
 
 Mercantile partners, though knowing 
 that they are in some difficulty, so long as 
 they have a reasonable expectation of ex- 
 tricating themselves cannot be charged 
 with a fraudulent diversion of their prop- 
 
 erty from firm creditors for simply draw- 
 ing-money upon private account, within 
 small and reasonable limits, whether for 
 the payment of their individual' expenses 
 or the payment of their honest individual 
 obligations. McKinney v. Rosenband, 
 23 Fed. Repr. 785. 
 
 A creditor who has an attachment in; 
 an action at law begun by a trustee pro- 
 cess cannot maintain a bill for discov- 
 ery, in aid of such attachment, to obtaim 
 evidence to contradict the answers made 
 by the trustee in the trustee process, even 
 though the trustee is an administrator, 
 and his answers are in respect to matters 
 of which he has no personal knowledge. 
 Emery v. Bidwell, 140 Mass. 271. 
 
 A sale or conveyance by a debtor X.o 
 cheat, hinder, or delay any one creditor, 
 or his removal from the county of his 
 residence to avoid the service of sum- 
 mons by any one creditor, will justify an 
 attachment of his property by any other 
 creditor. Sherrill v. Bench, 37 Ark. %ta. 
 
 1. Wade on Attach. § 57. 
 
 2. Drake on Attach. (6th Ed.)§ 84. 
 
 In some States the affidavit is required! 
 simply to state the existence of a particu- 
 lar fact, as the ground of attachment. 
 Here nothing is required but substantial' 
 conformity with the statute. The officer 
 inquires only whether there is such con- 
 formity, and if there is he issues the writ 
 in a ministerial, not in a judicial capac- 
 ity. He need not be satisfied judicially 
 that the alleged fact is true, but is simply 
 to see whether it is sworn to. Where, 
 however, the existence of the ground of 
 attachment must be proved to the satisfac- 
 tion of the officer, or where the officer must 
 be satisfied of the existence of the ground 
 of attachment by proof of facts and cir- 
 cumstances tending to establish its exist- 
 ence, he acts in a judicial as well as a min- 
 isterial capacity; and if he issues the writ 
 without proof, he is liable to the defend- 
 ant as a trespasser. Drake on Attach. 
 (6th Ed.) §§ g8, gg, 100; Vosburgh v. 
 Welch, II Johns. (N. Y.) 175. 
 
 There can be no valid writ of attach- 
 ment without a sufficient affidavit. Earl 
 V. Camp, 16 Wend. (N. Y.) 562; Parker w. 
 Walrod, 16 Wend. (N. Y.) 514, 517; Beach 
 V. Botsford, I Doug. (Mich.) igg; LeRoy 
 V. East Saginaw City R., 18 Mich. 233; 
 Watkins v. Wallace, ig Mich. 57; Ma- 
 thews V. Densmore, 43 Mich. 461. 
 
 901 
 
Afadavit. 
 
 ATTACHMENT. 
 
 Contents. 
 
 Contents. — The essential facts differ in different States, but in 
 nearly all the afifidavit must show the nature of the demand,* 
 
 Nevertheless it has been held that a 
 complaint containing what is required 
 in an affidavit for attachment, if sworn 
 to, may subserve the purposes of a com- 
 plaint and the required affidavit for at- 
 tachment. Dunn V. Crocker. 22 Ind. 334; 
 Waples on Attachment, 84; Miller v. 
 Chandler, 29 La. Ann. 88. See also Fre- 
 mont V. Fulton, 103 Ind. 393. 
 
 Before whom Made. — An affidavit for 
 an attachment may be made before any 
 officer authorized by law to administer 
 oaths, and it is not necessary that it 
 should be made before the officer by 
 whom the writ is issued, though that is 
 the general practice. Wright v. Smith, 
 66 Ala. 545. 
 
 That it was so Made must be Properly 
 Certified. — An affidavit for an attachment 
 on warrant made before an associate 
 judge of the district court of Allegheny 
 county, Pennsylvania, recited that it was 
 taken before " the subscriber, a judge of 
 the district court of said county, being a 
 court of record." The clerk of the court 
 certified that the judge before whom the 
 affidavit was made was at the time asso- 
 ciate law judge of said court, but did not 
 certify that the same was a court of 
 record. Held, that the authentication in 
 regard to the character of the court was 
 insufficient, and the attachtnent was, 
 therefore, improvidently issueii, and the 
 judgment of condemnation thereon was a 
 nullity. Coward v. DiUinger, 56 Md. 59. 
 
 On the other hand, in an action in 
 which an order of attachment is obtained, 
 the clerk of the court administers the oath 
 to the party making and filing the affida- 
 vit for the order of attachment, and signs 
 his name to \^& jurat as follows: " W. 
 W. Church, Clerk," without writing out 
 or giving the title to his office in full, and 
 without putting the seal of the court to 
 the paper. It was held, under the cir- 
 cumstances of the case, that the said fail- 
 ure of the clerk did not render the attach- 
 ment void. Simon v. Stetter, 25 Kan. 
 
 155- 
 
 If the affidavit for an attachment is not 
 signed by the affiant, the court acquires 
 no jurisdiction, and a sheriff's deed based 
 upon a judgment in the case is a nullity. 
 Hargadine v. Van Horn, 72 Mo. 370. 
 
 It may, however, be signed by an at- 
 torney or agent. Tessier v. Crowley, 16 
 Neb. 369; Weaver v. Roberts. 84 N. C. 
 493; Gilkeson v. Knight, 71 Mo. 403. 
 
 Section 3 of the final title of the revised 
 statutes of Texas requires that they shall 
 be liberally construed with a view to effect 
 
 their objects and to promote justice. 
 Held, that thus construed, under the stat- 
 ute vyhich permits the issuance of a writ 
 of attachment when the statutory grounds 
 are sworn to by an "attorney," it is com- 
 petent for two attorneys to verify, each 
 knowing distinct facts which must be 
 stated, but which are unknown to the 
 other. Lewis v. Stewart, 62 Tex. 352. , 
 
 Where an affidavit is made by an agent 
 or attorney to obtain an attachment, he 
 may swear to the amount claimed to ce 
 due according to his best knowledge and 
 belief, but the ground of attachment must 
 be sworn to positively, and the language 
 used must be such as not to leave it 
 doubtful whether this requirement has 
 tieen complied with. Horn v. Guiser 
 Mfg. Co., 72 Ga. 897. 
 
 An affidavit for attachment made by an 
 agent need not disclose his means of 
 knowledge. Gilkeson v. Knight, 71 Mo. 
 403 ; Rice v. Morner, 64 Wis. 599. 
 
 But in nearly all the States the agency 
 must appear, and in many the affidavit 
 must be expressly sworn to have been 
 made on the defendant's behalf. 
 
 An affidavit for an attachment under 
 sec. 3702, R. S., if not made by the plain- 
 tiff, must contain a sworn statement that 
 it is made on his behalf. A mere recital, 
 as "J. K., on behalf of I. S., being duly 
 sworn," etc., is insufficient. Miller v, 
 C, M. & St. P. R. Co.,58Wis. 310. See 
 also Wiley v. Aultman, 53 Wis. 560. 
 
 In Missouri an affidavit for attachment 
 not made by the plaintiff in person did 
 not, on its face, state that it was made for 
 him. It was, however, made by the same 
 person who signed the petition as plain- 
 tiff's attorney. Held, sufficient. Gilke- 
 son V. Knight, 71 Mo. 403. 
 
 In Indiana a recital in an affidavit in 
 attachment, that "the plaintiff's acting 
 secretary, S. B. , being duly sworn, upon 
 his oaih says," etc., is sufficient, the stat- 
 ute, R. S. 1881, section 916, not requiring 
 a sworn statement that the affiant is the 
 agent, attorney, or officer of the plaintiff, 
 and that he makes the affidavit in his be- 
 half; and, in the absence of any showing 
 to the contrary, that the affidavit is made 
 in behalf of the plaintiff will be presumed 
 from the fact that it is made by such 
 agent, attorney, or officer. Fremont Cul- 
 tivator Co. V. Fulton, 103 Ind. 393. 
 
 1. Except in New York, general lan- 
 guage is sufficient. Wade on Attach. § 65. 
 See Bowers v. London Bank. 3 Utah, 417; 
 Hudkin v. Haskin, 22 W. Va. 645; Bell 
 V. Allen, 76 Ala. 450; Gunlit v. Be Bose, 
 
 903 
 
Affidavit. 
 
 ATTACHMENT. 
 
 Contents. 
 
 i.e., the facts from which the indebtedness arose, the amount of 
 the claim.i whether the demand is actually due'-* or about to be- 
 come due;^ and in many averment must be made that the demand 
 is just,* and that the action is not brought to vex or harass the 
 
 77 Ala. 326. But see also Beard v. 
 Woodward, 78 Ala. 317. 
 
 Attachment should not issue upon 
 affidavit charging fraud, but not stating 
 facts which ?how it. Claussen v. Fultz, 
 13 S. Car. 476. 
 
 An affidavit for an attachment, under 
 the act of March 17, 1869, is sufficient, 
 if made in the words of the act without 
 setting out specific acts of fraud. Sharp- 
 less V. Ziegler, 92 Pa. St. 467. 
 
 1. When a statute provides that attach- 
 ment may issue where the debt " e.tceeds" 
 a given sum. An averment that the 
 debt "equals" the sum is insufficient. 
 Hughes V. Martin, i Ark. 386; Hughes 
 V. Stinnett, 9 Ark. 211. 
 
 An affidavit for an attachment (under 
 sec. 2731, R. S.), made by the attorney 
 ■or agent of the plaintiff, which states 
 positively the amount due, need net state 
 the means of the affiant's knowledge 
 thereof. An intimation to the contrary 
 in Wiley v. Aultman, 53 Wis. 560, dis- 
 approved. Anderson v. Wehe, 58 Wis. 
 615. 
 
 Though the presumption of law in a 
 •suit on a promissory note, where the 
 ■date' of a partial payment is alleged, 
 would ordinarily be that it occurred on 
 the day of the execution of the note no 
 such presumption will obtain in suits by 
 •attachment. The requirement of the 
 statute, that the amount of the demand 
 •shall be stated in the affidavit, must be 
 -strictly observed; and this is not done 
 when, by an omission to state the date of 
 an acknowledged credit, there is nothing 
 by which, in computing interest, the 
 amount due may be certainly determined. 
 Espey V. Heidenheimer, 58 Tex. 662. 
 
 An averment in an affidavit for an 
 •attachment, that "the defendant is in- 
 debted to the plaintiff in a sum stated," 
 and that the latter "is justly entitled to 
 recover said sum," is not a compliance 
 with the requirement of the Code of 
 Civil Procedure (§ 636), that plaintiff 
 must show by affidavit that he " is en- 
 titled to recover a sum stated therein, 
 over and above all counterclaims known 
 to him;" and when the requirement is 
 only met by the averments stated, the 
 affidavit is insufficient to give the judge 
 jurisdiction to grant the warrant. Rup- 
 pert V. Haug, 87 N. Y. 141; Thorington 
 V. Merrick, loi N. Y. 5. , 
 
 K variance between the affidavit and 
 
 attachment and the complaint, as to the 
 amount of the plaintiff's debt, can proba- 
 bly be taken advantage of only by plea 
 in abatement; and it is not available on 
 error after judgment by default. McAber 
 ». Parker, 78 Ala. 573. 
 
 Where the affidavit for attachment 
 obviously means that the defendant is 
 indebted to the plaintiff in the amount 
 named, a clerical omission of the word 
 "is" will not vitiate. Buchanan v. 
 Sterling, 63 Ga. 227. 
 
 An affidavit for attachment, which by 
 itself might be regarded as defective for 
 want of certainty as to the amount of the 
 debt, may be rendered certain by refer- 
 ence to the allegations of the petition, 
 when consistent therewith. Cleveland v. 
 Boden, 63 Tex. 103. 
 
 2.' If the demand is due, the maturity 
 of the debt must be averred. Wade on 
 Attach § 67; Batchelder v. White, 80 Va. 
 103. 
 
 In those States where attachment lies 
 for debts about to become due. the condi- 
 tions necessary to maintain the action 
 must distinctly appear. Batchelder v. 
 White. 80 Va. 103; Gowan u. Hansons, 
 55 Wis. 341. 
 
 3. A debt not due may be consolidated 
 with one that is due, and an attachment 
 be issued for the aggregate amount of 
 both, where grounds of attachment appli- 
 cable to either debt are alleged in the 
 affidavit. Kahn v. Kahn, 44 Ark, 404. 
 
 In a proceeding by attachment upon 
 claims, part of which are due and part 
 not due, it is not necessary that the affi- 
 davit, should show, in terms, Ijow much 
 of the debt was due and how much not 
 due. when the petition andaffiilavit, which 
 refer to each oiher, contain the requisite 
 data for making cerlain that fart by cal- 
 culation. P. J. Willis & Bro. v. Mouring 
 & Blanchard, 63 Tex. 340. 
 
 4. An affidavit for attachment which 
 omits to state that the defendant is justly 
 indebted to the plaintiff, or which stales 
 that the debt is due at one time and the 
 petition states a different time, is fatally 
 defective. A variance between the peti- 
 tion and the affidavit may be reached by 
 plea in abatement, as well as by motion 
 to quash. Evans & Martin v. Tucker, 
 59 Tex. 249. See also Grebe v. Jones, 
 15 Neb. 312. 
 
 In Kansas the code (§ 191) requires 
 that the affidavit for attachment Shall 
 
 903 
 
Affidavit. 
 
 ATTACHMENT. 
 
 Hanner of Statement. 
 
 debtor, nor to hinder, delay, or defraud, his creditors.* In addi- 
 tion to these essential facts the statutory "grounds of the attach- 
 ment" must also be alleged to entitle the plaintiff to the writ. 
 
 Manner of Statement. — All the elements of positiveness, knowl- 
 edge, information or belief, conjointly or separately, which the 
 statute may require in the making of an affidavit should therein 
 appear, or be substantially included in its terms, or it will be bad.'-* 
 Uncertainty in the affidavit will vitiate it;* surplusage not incon- 
 sistent with the substantial averment required by the statute will 
 not.* Where there are several grpunds for the application, they 
 should be stated cumulatively.'' A disjunctive statement is 
 bad.* It is not necessary that the probative facts should be stated. 
 
 show — not that it shall state — that the 
 plaintiff's claim is just. A mere state- 
 ment that it is just is doubtless sufficient; 
 but if there be no such statement, and the 
 facts as stated in the affidavit show that 
 the claim is just, that is also sufficient. 
 Toutellott V. Wilkins, 28 Kan. 825; Lud- 
 low V. Ramsay. 11 Wall. (U. S.) 581. 
 
 1. In those States where this averment 
 is necessary, it is a condition precedent 
 to the issue of the writ; its omission is a 
 matter of su. 'Stance, and cannot be sup- 
 plied by amendment. Wade on Attach. 
 §69. 
 
 In Georgia, in attachment for purchase- 
 money, the goods liable to seizure must 
 be particularly described. In California, 
 Oregon, Nevada, and the Teritories of 
 Arizona, Idaho, Montana, Utah, and 
 Washington, averment is also necessary 
 that plaintiff holds no valuable security 
 by mortgage, lien, or pledge. Wade on 
 Attach. § 69. See also Welke v. Cohn, 
 54 Cal. 212. 
 
 2. An affidavit to obtain an attachment 
 against a debtor's property that affiant is 
 '.' informed and believes that the defend- 
 ant is indebted" is not sufficient. The 
 indebtedness should be directly stated, or 
 the affiant should state such facts as 
 would show the indebtedness. Ross v. 
 Steen, 20 Fla. 443. 
 
 This remedy is justified, not by the be- 
 lief of the affiant, however honestly en- 
 tertained upon reasonable grounds, that 
 the fact sworn to in the affidavit exists, 
 but by the existence of that fact. See 
 Claflin V. Steenboclc, jS Gratt. (Va.) 853; 
 Sublett V. Wood, 76 Va. 318; Flower v. 
 Hall, 80 Va. 864; Davidson v. Hackett, 49 
 Wis. 183. 
 
 3. Drakeon Attach. (6th Ed.) §104. In 
 stating amount due it is insufficient to 
 aver "as near as deponent can now as- 
 certain." Contra, Chronicle v. Rowland, 
 72 Ga. 195. 
 
 4. Drake on Attach. (6th Ed.) § 105. 
 
 It will always be safe to follow the 
 
 language of the statute, paying due re- 
 gard to the different application of the 
 words after they have Jieen transcribed. 
 Wade on Attach. § 59. 
 
 Example, nonresidence; that defend- 
 ant "absconds or conceals himself:" 
 Wade on Attach. § 72. 
 
 5. When so stated, a single ground wiU 
 be sufficient to sustain the affidavit. Si- 
 mon V. Sletter, 25 Kan. 155. 
 
 6. An averment is disjunctive only 
 where it sets forth several facts- as dis- 
 tingiiished from two or more phases of 
 the same fact. Thus the averment that 
 the debtor " absconds or conceals " is not 
 disjunctive. It merely sets forth two 
 phases of this fact. The reason for the 
 objection is that the ground upon which 
 the plaintiff relies is not stated with cer- 
 tainty. Wade on Attach. § 56. 
 
 An affidavit for an attachment stating 
 that the defendants " were about to con- 
 vert their property or a part thereof into 
 money for the purpose of placing it be- 
 yond the reach of their creditors" is not 
 open to the objection that it states two 
 separate grounds for an attachment in 
 the alternative. Blum v. Davis, 56 Tex. 
 423. Compare Miller v. Munson, 34 Wis. 
 579; Goodyear & Co. v. Krapp, 61 Wis. 
 103. See also Penniman v. Daniel, 90 N. 
 Car. 154; Cleveland v. Boden, 63 Tex. 
 103. 
 
 Under the statute which makes the fact 
 that a debtor has disposed in whole or in 
 part of his property with intent to de- 
 fraud, etc., one ground for attachment, 
 and which makes the fact that " he is 
 about to dispose of his property with 
 intent to defraud," etc., another and dif- 
 ferent ground., an affidavit which states 
 them conjunctively as coexisting facts is 
 bad, for the affidavit must on its face, as 
 to one or the other ground, be untrue.. 
 Dunnenbaum v. Schram, 59 Tex. 281. 
 
 Though an affidavit for attachment 
 may be bad for uncertainty, yet if there 
 be another affidavit verifying the allega- 
 
 9Q4 
 
Affidavit; 
 
 ATTACHMENT. 
 
 Attachment Bonds. 
 
 but only the ultimate fact upon which is based the application 
 for the writ.* 
 
 The proper mode to take advantage of defects in the affidavit 
 is by motion to quash or dissolve. This motion is in the nature 
 of a plea in abatement, and if successful its effect is the same.** 
 The motion should be resorted to in limine, as, after appearance by 
 defendant and plea to the action, defects in the preliminary pro- 
 ceedings will be considered waived, unless peculiar statutory pro- 
 visons direct otherwise.^ The right of amendment must be con- 
 ferred by statute, otherwise the attachment will stand or fall upon 
 the original sworn statement.* 
 
 5. Attachment Bonds. — Object, Form, and Requisites. — The object of 
 requiring a bond is to protect the defendant from a wrongful, ma- 
 licious, or unnecessary attachment; and it is generally conditioned 
 to prosecute the attachment to judgment without vexatious delay, 
 and pay any judgment awarded against plaintiffs, costs, and dam- 
 ages arising from the wrongful suing out of the attachment.* The 
 bond is a prerequisite to jurisdiction,® must precede the writ,'' 
 and conform substantially to statutory requirements as to condi- 
 tions and obligations.* Its entire omission is fatal, and can be taken 
 
 lions in the petition for the writ, and the 
 allegation as to the cause for attachment 
 be distinct, specific, and sufficient as to 
 the existence of a statutory ground, it 
 will support the writ. Dunnenbaum v. 
 Schram, 59 Tex. 281; See also Pearre 
 w. Hawkins, 62 Tex. 431. 
 
 1. Wade on Attach. § 55. 
 
 2. Drake on Attach. (6th Ed.) § 112. 
 In Alabama and North Carolina the 
 
 only way to'reach such defects is by plea 
 in abatement. 
 
 3. Garman v. Barringer, 2 Devereaux 
 
 6 B. (N. Car.) 502; Stoney v. McNeil, 
 Harp. (S.Car.) 156: Watsonz/. McAllister, 
 
 7 Mart. (La.) 368; Enders v. Steamer 
 Henry Clay, 8 Rob. (La.) 30; Symons v. 
 Northern, 4 Jones (N. Car.) 241; Burt v. 
 Parish, 9 Ala. 211; Drake on Attach. (6th 
 Ed) §112. 
 
 By appearance and going to trial on 
 the merits defendant waives all objec- 
 tions to the manner in which the original 
 process was served; but defects in the af- 
 fidavit are not waived by appearance ex- 
 cept where some express statutory pro- 
 vision gives it that effect. Wade on 
 Attach. § 72. 
 
 This view is certainly more in accord 
 with the doctrine that consent cannot give 
 jurisdiction, and hence if requirements 
 which are necessary to ground the juris- 
 diction upon are not complied with, the 
 appearance of the party and readiness to 
 submit to decision of the court cannot 
 give it. Appearance of defendant by at- 
 torney to move for a dismissal of the at- 
 
 tachment and to except to jurisdiction of 
 the court will not be construed into sub- 
 missten to the jurisdiction. Johnson v. 
 Buell, 26 111. 66; Bonner v. Brown, 10 La. 
 Ann. 334. 
 
 4. brake on Attach. (6th Ed.) § 84; 
 Wade on Attach. § 72; Marx v. Abram- 
 son, 53 Tex. 264. 
 
 Such statutes exist in Arkansas. Nolan 
 w.Royston,36 Ark, 562; Sherril v. Bench, 
 37 Ark. 560. See also Tommey v. Gam- 
 ble, 66 Ala. 469; De Bedian v. Gola, 64 
 Md. 262. 
 
 5. Wade on Attach. § 102. 
 
 6. Wade on Attach. § 1O3. 
 
 Bond — When not Beqnired — Where an 
 order of attachment is obtained against 
 a defendant who is a non-resident of the 
 State, no attachment bond or undertak- 
 ing is required, although the action is 
 commenced under section 230 of the 
 civil code on a claim before it is due. 
 Civil Code of Kansas, g§ 192, 234; Simon 
 V. Stetter, 25 Kan. 155. 
 
 7. Drake on Attach. (6th Ed.) g§ 121, 
 122. 
 
 8. In Kentucky, if the bond be not of 
 required amount, the attachment was de- 
 clared void. Martin v. Thompson, 3 
 Bibb. (Ky.) 252. 
 
 In South • Carolina voidable only. 
 Chamberford v. Hall, 3 McCord (S. Car.), 
 345- 
 
 No condition subsequent between the 
 plaintiff and the officer who is to issue 
 the attachment can affect the right of 
 defendant to recover. In all cases of de- 
 
 905 
 
Attac]iinent Bonds. 
 
 A TTACHMENT. object, Form, and Eeqmsitea 
 
 advantage of by the defendant either by motion to dismiss or by 
 plea in abatement.^ The name of the obligor should, appear in 
 the body of the instrument and also be signed ; the absence of the 
 names of the sureties from the body of the bond or in the execution 
 is an irregularity.** If. the bond is not entitled it is liable to be 
 quashed.* The bond should run to all the defendants.* The ag- 
 
 lective or insufficient bond the defendant 
 is the only person who can tSlce advan- 
 tage of the defect. Drake on Attach. 
 (6th Ed.) § 143- 
 
 Exception must be taken in limine, and 
 defect is cured by appearance and plea. 
 Drake on Attach. (6th Ed.) § 144. and 
 cases cited, South Carolina alone ex- 
 cepted. 
 
 Where a statute in one clause provides 
 what shall be the condition of the bond 
 and in another sets forth the form of the 
 condition, the proper course is to follow 
 the form without regard to whether its 
 termS'Coincide with the language of the 
 statute elsewhere. Drake on Attach. (6th 
 ed.)§ 126. 
 
 If the bond follow the language instead 
 of the form it will be void. Love v. 
 Fairfield. lo* 111. 353; Lucky v. Miller, 8 
 Yerger (Tenn.), 90. ... 
 
 A bond void as to defendant will justi- 
 fy the officer in making a levy. Drake 
 on Attach. (6th Ed.) § 117. 
 
 1. Drake on Attach. § 115; Davis v. 
 Marshall, 14 Barb. (N. Y.) 96; Stevenson 
 V. Robbins, 5 Mo. 18. 
 
 2. Where it is apparent that the prin- 
 cipal obligor is not plaintiff, nor one to 
 whose use the action Is brought, there 
 should be something to show the capac- 
 •ty in which he acts. The evidence of 
 the agent's authority need not accom- 
 pany the bond; objection to agency to be 
 raised by plea in abatement and not by 
 motion to quash. Wade on Attach, g 
 fo6. See Work v. Titus, 12 Fla. 628. 
 
 An attachment bond executed by two 
 persons other than the plaintiff in the 
 proceeding, they justifying in proper 
 amounts, is sufficient, although there was 
 no principal obligor in the bond to whom 
 the other obligors stood, in the relation 
 of sureties. Howard v. Manderfield, 31 
 Minn. 337. 
 
 Where an action is brought upon an 
 attachment undert-nklng by the assignee 
 of the defendant in the attachment, for 
 damages against the sureties, and the 
 principal on the undertaking, who is not 
 made a party, has a judgment against 
 the defendant, obtained in the attach- 
 ment action, greatly in excess of the al- 
 leged damages, which is unpaid, and the 
 defendant in the attachment is insolvent. 
 
 held, that the court, upon the request of 
 the sureties and the principal, may prop- 
 erly permit such principal to become a 
 party and defend; and further held, that 
 after the principal has been made a party 
 and has filed a verified answer setting 
 forth all the foregoing facts, the court 
 commits no error In refusing to allow 
 the plaintiff to dismiss his action against 
 the principal so that he may proceed 
 against the sureties alone. Gerson v. 
 Hanson, 34 Kan. 590. 
 
 This is a substantial compliance with 
 the statute which requires a bond "on 
 the part of the plaintiff with sufficient 
 sureties." It was not necessary that 
 there should be in the bond a principal 
 obligor to whom the other persons ob= 
 ligating themselves in favor of, the de- 
 fendants should stand in the relation ot 
 sureties. Keener. Deardon, 8 East, 29S; 
 Dixon V. Dixon, 2 Bos. & P. 443; Tay- 
 lor V. Ricards, 9 Ark. 378; Harnett v. 
 Warren Cir. Ct., Hardin (Ky.), 172. Com- 
 pare Thorn v. Savage, I Blackf. (Ind.) 
 51; Chandler v. Smith, 14 Mass. 313; 
 Hayden v. Boyars, 58 Ala. 139. Contra, 
 Ex parte Brooks, 7 Cow. (N. Y.) 428, 
 See Wade on Attach. § 104, . 
 
 The individual stockholder in an in- 
 corporated company may be a surety on 
 an attachment bond for the company; 
 were it otherwise the objection could 
 not be made av.allablq on a motion to 
 quash. City Nat. Bank v. Cupp, 59 
 TeX. 268. 
 
 8. Benner v. Brown, 10 La. Ann. 324. 
 
 Attestation and filing are n on essential 
 formalities. Wade on Attach. § 104. 
 
 Sealing may be amended. Lea v. Va'l, 
 
 3 111- 473- 
 
 4. An attachment bond made payable 
 to a firm in the partnership name is suffi- 
 cient when the suit is against the firm 
 in the firm name. De Caussey v. Bai- 
 ley. 57 Tex. 665. 
 
 Attachment. — VTrit. — Where an actim 
 in attachment was brought against a fit n 
 and against the individual members thers 
 of,but the bond which plaintiff filed ran to 
 the firm alone and not to the individual 
 members, and the clerk, following the 
 bond, issued the writ against the prop- 
 erty of the firm only, but the sheriff 
 thereunder seized the individual property 
 
 906 
 
Attachment Bonds. 
 
 ATTACHMENT. 
 
 Amendmenta, 
 
 gregate worth of the sureties should at least equal the penalty of 
 the bond.^ While mere surplusage will not vitiate a bond, it is 
 important that the conditions imposed by the statute should be 
 expressed without other qualifications than those to which they are 
 subject by the statute,* A sufficieVit penalty must be expressed ; 
 and where none is expressed parol evidence is inadmissible to sup- 
 ply the omission.* Approval is /r«V««-_/rt«> evidence of sufficiency 
 of surety.* The failure to give bond is not to be reached by de- 
 murrer; the bond is essential to the jurisdiction; and appearance 
 and pleading to the merits, when the requirement has not been 
 complied with, will not cure the defect.* 
 
 Afnendments. — In the absence of express statutory provision, 
 substantial defects cannot be supplied by amendment.** Some 
 States go so far as to allow a new bond in lieu of one which was 
 void.'' In others, any defect may be cured by filing a good and 
 sufficient undertaking after objection raised and within the time 
 ordered by the court.** 
 
 of one of the members, ^c/^/.that such seiz- 
 ure was not warranted by the writ, and 
 that an action for trespass might be main- 
 tained therefor, but that the partner 
 whose property was so seized could not 
 maintain an action on the attachment 
 bond on account of the damage done 
 him by such seizure, the bond being only 
 for the security of the firm against the 
 wrongful suing out of the attachment, 
 and not to secure others against the 
 tortious acts of the sheriff in levying the 
 writ. Mason v. Rice, 66 Iowa, 175. 
 
 1. May V. Gamble, 14 Fla. 467. 
 
 In some States attorneys and coun- 
 sellors are disqualified for sureties. 
 Where a statute prescribes " two or 
 more," one is insufficient. That the 
 sureties satisfy the requirements need not 
 appear save by approval of officer, until 
 c\uestioned by a plea in abatement. 
 Wade on Attach. § 109. 
 
 It is proper to inquire into their other 
 cbligations. Durham v, Lisso, 32 La. 
 Ann. 415. 
 
 The insufficiency of a surety on the 
 bond at the time ihe attachment was is- 
 sued will not render it void and entitle 
 defendant to have it dissolved, but addi- 
 tional security may be required and taken 
 by the court. Bamberger v. Gerson, 24 
 Fed. Repr 257. 
 
 2. Where a bond undertook to fix the 
 amount beyond which obligee could not 
 recover, while the statute allowed him to 
 collect for all damages, the bond was held 
 void. Kahn v. Herman, 3 Ga. 266. 
 
 But where itcontains the statutory con- 
 dition unimpaired by any such qualifica- 
 tions, the mere insertion of other condi- 
 
 tions will not vitiate that part which is 
 essential. Wade on Attach. § no. 
 
 3. Parol evidence is not admissible to 
 show the amounts for which the bond 
 should have been given. The affidavit 
 is the proper criterion by which to judge 
 whether the amount of the penalty 
 has been properly set forth and not 
 recitals in the bond itself. Lawrence v 
 Feaiherston, 10 Sm. a. M. (Miss.) 345. 
 
 Objection can never be made that the 
 penalty is too large. Hoozer v. Buckner, 
 II B. Mon. (Ky.) 183. 
 
 4. Blaney v. Findley, 2 Blackf. (Ind.) 
 338. 
 
 5. Alexander v. Pardue, 30 Ark. 359. 
 It is a jurisdictional matter, and hence 
 
 the bond should appear on the record, 
 and its absence could betaken advantage 
 of by writ of error. Henrie v. Sweasey, 
 5 Blackf. (Ind.) 273. 
 
 6 Tyson v. Hamer, 2 How. (Miss.) 669. 
 
 Going to trial on the merits would be a 
 waiver of such defects as could be cured 
 by amendment if objected to at an earlier 
 stage of the proceedings. Voorhees v. 
 Haagland, 6 Blackf. (Ind.) 232. 
 
 7. Jackson v. Stanley, 2 Ala. 326; 
 Lowry v. Stowe, 7 Porter (Ala.), 483. 
 
 8. Bretny v. Jones, I Greene (la). 336. 
 The rulings of the courts are generally 
 
 favorable to substitution of such bonds 
 for those which are not defective, where 
 the defects are not sufficiently serious to 
 render the undertaking absolutely void. 
 Beardsley v. Morgan, 29 Mo. 471; Oliver 
 V. Wilson, 29 Ga. 642; Peirce v. Miles, 6 
 West (Wash. Rep.), 94. 
 
 It has been held that defects in the 
 original bond are not cured by this 
 
 907 
 
Attachment Bonds. 
 
 ATTACHMENT. 
 
 Liabilitiw— Samagea 
 
 Liabilities. -^\S\2^\Y\X.y razy accrue when the suit has not been 
 prosecuted to judgment, or when there has been no action against 
 the principal obligor ;^ and even when the judgment is against 
 defendant, provided the attachment be wrongful and oppressive.* 
 The validity of an attachmerft must be determined before the' 
 defendant can be said to have a cause of action.^ Unless writ 
 of error operate as a supersedeas it cannot affect defendant's 
 right to sue on bond, even while the main case is pending on 
 error.* 
 
 Damages. — Actual damages only can be recovered — " dam-; 
 ages adequate to the injury to property attached and loss arising 
 from deprivation of its user, together with actual costs and ex- 
 
 method of amendment. Houston v. 
 Belcher, 12 Sm. & M. (Miss.) 514; Wade 
 on Attach. § 115. 
 
 The statute of Wisconsin allowing an 
 action to be maintained on a demand not 
 yet due, upon the filing of a bond condi- 
 tioned in three times the amount of the 
 claim, must be strictly oniplied with. 
 The bond is a prerequisit to the right of 
 action, and if it i.' defective in the first 
 instance the fault cannot be afterwards 
 healed by the substitution of a regular 
 bond. Bradley v. Kroft, 19 Fed. Repr. 
 295; Gowan v. Hanson, 55 Wis. 341. 
 
 1. Bliss V. Heasty, 61 111. 338; Cox v. 
 Robinson, 2 Rob. (La.) 313; Baere v. 
 Armstrong, 32 How. Pr. (N. Y.) 515; 
 Hibbs V. Blair, 14 Pa. St. 413; McDan- 
 iel V. Gardner, 34 La. Ann 344; Kerr v. 
 Reeve, 27 Kan. 469; Sannes v. Ross, loj 
 Ind.556. Contra, Boatwright v. Stewart, 37 
 Ark. 614; Pettit v. Mercer, 8 B. Mon. 
 (Ky.)5i; Cooper v. Hill, 3 Bush (Ky.), 
 2tg; Nockles v. Eggspeiler, 47 Iowa, 400; 
 Ranning v. Reeves, 2 Tenn. Ch. 263. 
 
 2. Harper v. Keys, 43 Ind. 220, 
 
 In Indiana the wrong and oppression is 
 the gist of the action. Uppinghouse v. 
 ^undel, 103 Ind. 238. Contra, Spenglerw. 
 Davey, 15 Gratt. (Va.) 381. 
 
 3. Nolle V. Thompson, 3 Mete. (Ky.) 
 121; Pixley V. Reed, 26 Minn. 80; Sloan 
 V. McCracken, 7 Lea (Tenn.), 626; State v. 
 Beldsmeier, 56 Mo, 226. 
 
 After a plea in abatement to affidavit 
 has been sustained, the truth of the affi- 
 davit cannot be inquired into. Sacketzi. 
 McCord, 23 Ala. 851. See also Hoge v 
 Norton, 22 Kan. 374; Hayden v. Sample, 
 10 Mo. 215; Dunning v. Humphrey, 24 
 Wend. (N. Y.)3i. 
 
 On the other hand, the mere fact that 
 judgment is against plaintiff is not con- 
 clusive that the attachment was wrong- 
 fully or oppressively sued out. Hayden 
 V. Sample, 10 Mo. 215. 
 
 If dismissed for mere irregularities of 
 procedure, sureties cannot be held liable 
 
 in full damages. Garretson v. Zacharie, 
 8 Mart. (La.) 481. 
 
 But this doctrine was held inapplicable 
 to the plaintiiif. Cox v. Robinson, 2 
 Robinson (La,), 313. Cases summed up 
 throughout the Union in Drake on At- 
 tach. (6th Ed.) § 170 et seq. 
 
 The f&ct that an attachment has been 
 set aside for technical defects is not j»n/na. 
 facia evidence that it was wrongfully ob- 
 tained. Sharpe v. Hunter, 16 Ala. 765.; 
 Boatwright v. Stewart. 37 Ark. 614; 
 Eaton V. Bartherer, 5 Neb. 469. 
 
 A complaint on an undertaking in at- 
 tachment which avers the execution of 
 the undertaking, the issuing of a writ, 
 the seizure of the plaintiff's property, 
 that the attachment was disposed of 
 against the defendant, and that the latter 
 did not duly prosecute the attachment 
 proceedings which, it is alleged. Were 
 wrongful and oppressive, resulting in 
 damages to the plaintiff which remain 
 unpaid, is good as against a demurrer. 
 An averment that the undertaking was 
 approved by the clerk before the writ is- 
 sued is not necessary. Sannes v. Ross, 
 105 Ind. 556. 
 
 4. Bing Gee v. Ah Jim, 7 Sawy. C. C. 
 117. 
 
 The conditions of the bond measure 
 the liability of the obligors and determine 
 when the right of action accrues. As a 
 general rule, when the statutory form of 
 bond is followed the party damaged by 
 the attachment may maintain his action 
 thereon without first pursuing his rem- 
 edy against the plaintiff for wrongfully 
 suing out the attachment. Herndon v. 
 Forney, 4 Ala. 243; Churchhill v. Abra- 
 ham, 22 III. 455; Boatwright v. Stewart, 
 37 Ark. 615; Dickerson v. McGraw, 4 
 Rand. 158, Contra. Sledge v. Lee, tg 
 Ga. 411; Sterling C. M. Co. v. Cook, 2 
 Col. 20; Holcomb v. Foxworth. 34 MisS. 
 265. 
 
 In the Nebraska bond the surety is 
 liable for all damages up to the time of 
 
 908 
 
Attachment Bonds, 
 
 ATTACHMENT. 
 
 Issuing the Writ 
 
 penses incurred."* In some States vindictive damages as for a 
 tort are allowed, where the bond has been vexatiously sued out ;** 
 to recover vindictive damages requires proof of a fixed intent to 
 injure the defendant in the attachment.^ 
 
 6. Issuing the Writ. — Object and Requisites. — The effect of the issue 
 of the writ is to authorize the ofiScer to whom it is directed to make 
 the levy.* The facts stated in the affidavit, and the filing of the 
 
 the delivery of the attached property, 
 when the attachment is dissolved as 
 wrongful. McRaed v. Rosiers. i Neb. 124. 
 
 1. Drake on Attach. (6th Ed.) § 156; 
 Pettit V. Mercer, 8 B. Mon. (Ky.) 81; 
 Reidhar v. Berger, 8 B. Mon. (Ky.) 160; 
 Smith V. Ealien, 2 Sneed (Tenn.). 456; 
 Senecal v. Smith. 9 Rob. (La.) 418. 
 
 The determination in value must be a 
 consequence of seizure. Kisler v. Carr, 
 34 Cal. 641; Lowenstein v. Monroe, 55 
 Iowa, 82; Mitchel v. Harcourt, 62 Iowa, 
 
 349- 
 
 In Iowa it was held defendant is 
 entitled to recover at least the fair cash 
 value of the property when taken, with 
 six per cent interest thereon. Porter v. 
 Knight, 63 Iowa, 365. 
 
 The depreciation in value of market- 
 able merchandise during the attachment 
 is the measure of damages whether 
 caused by direct injury to the goods or 
 by a falling market. Fleming v. Bailey, 
 44 Miss. 132. 
 
 When by attachment the defendant is 
 prevented from performing a contract, 
 and material or property procured or 
 prepared for that purpose goes to waste 
 or depreciates, the loss occasioned by 
 such consequent depreciation, as well as 
 damage from being hindered in com- 
 pleting the contract, is generally em- 
 braced. Carpenter v. Stevenson, 6 Bush 
 (Ky.), 259. 
 
 Purely speculative damages, such as 
 injury to credit or business, cannot be 
 recovered. Wade on Attach. § 301. 
 
 2. Hays v. Anderson, 57 Ala. 374; 
 Transit Co. v. Cusen, 13 La. Ann. 214. 
 
 3 Wade on Attach. § 302; Nordhaus 
 V. Peterson, 54 Iowa, 68. 
 
 In Kentucky to recover for other than 
 actual damages defendant must resort to 
 an action for malicious prosecution. 
 Pettit T). Mercer, 8 B. Mon. (Ky.) 51. 
 
 In Georgia the bond is held to be 
 security only for such damages as may 
 be recovered in an action for malicious 
 attachment. Hedge v. McLaren, 29 
 Ga. 64. 
 
 In Missouri, New York, Tennessee, 
 and Ohio actual damages are allowed in a 
 case presenting no ingredient of malice. 
 Hayden v. Semper, 10 Mo. 215; Dun- 
 
 ning V. Humphrey, 24 Wend. (N. Y.) 31; 
 Bruce v. Coleman, i Handy (Ohio), 515; 
 Smith z/. Eaken, 2 Sneed (Tenn.), 456. 
 
 In Alabama, Kansas, Texas, and Iowa 
 vindictive damages may be recovered in 
 an action on the bond. Drake Attach. 
 (6ih Ed.) § 157 et seq 
 
 A Cause for an Attachment. — To main- 
 tain an action for malicious attachment 
 there must be a want of probable cause, 
 malice of the defendant, and injury to 
 the plaintiff. Parmer v. Keith, 16 Neb. 
 91- 
 
 The obligation of the bond extends to 
 the final determination of the causes. 
 Drake on Attach. (6th Ed.) § 152. 
 
 Errors do not affect the liability of 
 defendant. When a bond is given though 
 not required it is good as a common-law 
 bond. Drake on Attach. (6tl> Ed.) § 155. 
 
 Damages need not be first recovered 
 in a distinct action. Hernden u. Forney, 
 4 Ala. 243; Churchhill v. Abraham, 22 
 111. 455. Contra in Georgia, Mississippi, 
 and Colorado. Hedge v.' Lee, 19 Ga. 
 411; Sterling C. M. Co. v. Hughes, 3 Col. 
 224; Holcomb V. Foxworth, 34 Miss. 
 265. See also Drake on Attach. (5th Ed.) 
 § 156, for a good summary. 
 
 Damages claimed for wrongfully suing 
 out the original writ may be set up by 
 way of counter-claim or cross-demand to 
 the original debt sued on, and this matter 
 may be tried at same time as the original 
 action, and to support such counter-claim 
 the burden of proof is on defendant. 
 Veiths V. Hogge, 8 Iowa, 163; Boatwright 
 V. Stewart, 37 Ark. 614. Contra in Ken- 
 tucky. Nolle V. Thompson, 3 Met. (Ky.) 
 121; Wade on Attach. § 303. See , also 
 Dent V. Smith, 53 Iowa, 262. 
 
 Under the Iowa statute, in an action 
 on the bond the plaintiff must show that 
 the defendant had not good cause to be- 
 lieve the facts to be true upon which he 
 based his affidavit for the writ, and it is 
 not sufficient to show that as a matter of 
 fact they were not true. Burton v. Knapp, 
 14 111. iq6; s. c, 81 Am; Dec. 465. For a 
 good summary of cases on the subject of 
 actions on attachment bonds and for 
 malicious prosecution, see the note to this 
 case, 81 Am. Dec. 467. 
 
 4. Wales v. Clarke, 43 Conn. 183. 
 
 909 
 
Issuing the Writ. 
 
 ATTACHMENT. 
 
 Object and'BequlBites. 
 
 bond when required, are prerequisites to the issue of the writ ; and 
 when it issues in advance of either of tlie two former, and some- 
 times even of the declaration, it is held void.* The writ must pro- 
 ceed from an officer having competent authority ;* must be attested 
 and signed by the officer issuing it ;^ and in order to take effect as 
 a writ issued it must.be delivered to one authorized to make a 
 levy.* The writ should state the amount for which the levy is 
 made according to what is set forth in the affidavit,^ and should 
 
 1. Ely V. Guest, 94 Pa. St. 160. But 
 under attachment execution act of 1836 
 bond and affidavit are held essential only 
 when a third party claims property. Betts 
 V. Townsend, 97 Pa. St. 367. 
 
 When the ground for attachment is 
 sufficiently set forth in the affidavit, a 
 general prayer in the petition for " pro- 
 cess" is sufficient to authorize the issu- 
 ance of the writ, The writ becomes a 
 matter of right on the filing of the proper 
 affidavit and bond required by the statute. 
 57 Tex. 665. 
 
 When in the petition for sequestration 
 the property was de.scribed as ".sixteen 
 hundred and forty-six head of sheep, 
 known as the Du Bose sheep," and the 
 writ which issued thereon required the 
 seizure of the Du Bose flock of sheep, 
 computed to number twenty-four hundred 
 head, it was held that the variance was 
 fatal. Woessner v. Fly, 63 Tex. 198. 
 
 The summons must be issued and 
 served on a non-resident before the issue 
 of the writ of attachment; and unless this 
 be done the levy will be held void; and 
 although the issuing of the writ is cured 
 by the subsequent summons, the levy is 
 not, and a motion to vacate the attach- 
 ment after the entry of judgment will be 
 sustained. Zerega v. Benoist, 7 Robert- 
 son (N. Y.). igg. 
 
 8. From the clerk of a court of record 
 when from such court. Wade on At- 
 tach. (6th Ed.) § 109. 
 
 3. When not signed held void. Wiley 
 V. Bennett, 9 Baxt. (Tenn.) 581. 
 
 4. A levy made before the officer has 
 poiVer to execute it is void, and renders 
 the officer liable as a trespasser. Wales 
 *. Clarke, 43 Conn. 183. 
 
 If the officer be properly authorized, 
 the fact that the writ is void will not ren- 
 der him liable. An officer is justified in 
 obeying any process which appears to be 
 lawfully issued to him, and which on its 
 face apprises him of no legal reason why 
 he should refrain from doing so. Ers- 
 kine v. Hohnoach, 14 Wall. (U. S.) 613; 
 Bird V. Perkins, 33 Mich. 28; Watson v. 
 Watson, 9 Conn. 140; Lott v. Hubbard, 
 44 Ala. 593; Hill V. Figley, 25 III. 156; 
 Seekins v. Goodale, 61 Me. 400; Under- 
 
 wood V. Robinson, 106 Mass. 296; Wal- 
 den V. Dudley, 49 Mo. 419; Gore v. Mas- 
 tin, 66 N. Car. 371. 
 
 ThewHt should be issued to the proper 
 officer when there is attachable property 
 in several counties; several copies of the 
 writ may be issued at the same time and 
 sent to the several jurisdictions for 
 service. Morris v. Trustees, 15 111. 266. 
 
 And these copies, or raiher these 
 several writs, will be of equal power, 
 each within its own jurisdiction. If 
 directed to a deputy instead of the proper 
 officer, the writ is curable by amendment. 
 Warren v. Purtell, 63 Ga. 428. 
 
 An attachment ' issued by a deputy 
 clerk who is performing the duties of the 
 office under appointment by his princi- 
 pal, is not voidable, nor subject to be 
 abated on plea, because he has never 
 taken the official oath prescribed bylaw; 
 his official acts, like those of any other 
 officer de facto, having the same force 
 and effect, so far as the public and third 
 persons are concerned, as the acts of an 
 officer de jure. Joseph v. Cawthorn, 74 
 Ala. 411. 
 
 5. At all events, it should not express 
 a larger sum, though it will not be void 
 for indicating less than is sworn to. 
 Reed v. Bank of Kentucky, 5 Blackf. 
 (Ky.) 227; Page v. Beet, 17 Mo. 263. 
 
 A demand in writing, under Mass. Pub. 
 Sts. c. 161, § 75, by a mortgagee of per- 
 sonal property attached on a writ against 
 the mortgagor, in which, although he refers 
 to the mortgage by its date and by the 
 book and page of Its record, he states 
 that it covers certain articles specified, 
 but omits to name one article covered by 
 the mortgage and included in the attach- 
 ment, does not defeat the attachment as 
 to such article. Several chattels which 
 had been mortgaged were attached by an 
 officer on a writ against the mortgagor. 
 The mortgagee made a demand upon the 
 officer, which was a valid demand as to 
 all the chattels but one. The officer did 
 not comply with the demand, and de- 
 livered the chattels to a receiptor, who 
 delivered them to the mortgagor. The 
 mortgagee subsequently foreclosed his 
 mortgage. The officer levied an execu- 
 
 910 
 
bsning the Wiit. 
 
 A TTACHMENT. what Property Subject to. 
 
 direct the executive officers to levy upon the property of defend- 
 ant.* While considerable liberality has been shown in allowing 
 amendments, it has been held that an attachment of real estate 
 which was void could not be cured by amendment of the writ ;'-* 
 and where the writ was defective by reason of clerical errors, it 
 was held that an amendment thereof did not affect the rights of 
 subsequent attachment, creditors acquired prior, to such amend- 
 ment.* Objection to an order in relation to amending process 
 must be made in open court or it will be considered \vaived.* 
 
 7. What Property is Subject to Attachment. — Real Estate. — Every 
 species of property, whether real or personal, which is capable of 
 being taken under a levy and execution is attachable. ** It may 
 be considered a sound doctrine, that in the absence of any positive 
 limitation to the right of attachment real estate may be as well 
 attached as personalty, and that the existence within the knowl- 
 edge of the officer of a sufficiency of the latter which he might 
 seize will not invalidate an attachment of the former.® Another 
 established principle affects with peculiar force attachments of 
 real estate — the attachment can operate only upon the right or 
 interest of the defendant at the time it is made.'' Moreover, in 
 executing a levy upon real estate it is not necessary for the sheriff 
 to take actual possession of the property,* and therefore many 
 intangible rights and interests in realty physically incapable of 
 
 tion, issued in the action in which they 
 had been attached, upon the chattels, and 
 was about to sell them, when they were 
 i;eplevied by the mortgagee. Held, that 
 the officer was entitled to judgment for a 
 return of the chattel as to which the de- 
 mand was insufficient, and that the ipoft- 
 gagee was entitled to judgment for the 
 rest of them. Woodward v. Ham. 140 
 Mass. 154. See Bowds v. Jordan Bank 
 of Utah, 3 Utah, 417. 
 
 1. But it is not required to designate the 
 particular kind df property. Layman v. 
 Beam. 6 Whart. l8i. 
 
 2. Drew v. Bank, 55 Me. 450. 
 
 3. Putnam v. Hall, 3 Pick. (Mass.) 445. 
 
 In Scott V. May, 3 Ala. 250, a writ re- 
 turnable on a day other than that re- 
 quired by law was held amendable; in 
 another Sta.te the attachment was de- 
 clared void. Dames j/.Tales, 3 N. H. 70. 
 
 In Alabama defects in writ sufficient to 
 render the attachment void are cured by 
 appearance. Goldsmith v. Stetson, 39 
 Ala. 183. 
 
 . A writ of at-tachment was tested " the 
 twenty-eighth of March, eighteen hundred 
 
 and seventy ." By the transcript it 
 
 appeared that the writ was issued March 
 28th, 1879. The erroneous statement of 
 the year was an oversight of the justice 
 in filling up a printed blank. The mis- 
 take did no injury to the defendant, and 
 
 was curable by amendment. An error 
 which is the result of an oversight of the 
 justice, which might have been cured by 
 amendment, and has caused no injury, 
 is no ground for reversal. Wright v. 
 Moran, 43 N. J. L. 49. 
 
 The short note in attachment is fatally 
 defective if it does not set out the Indi- 
 vidual names of the members of the firm 
 in whose favor the attachment is issued. 
 Hirsh V. Thurber, 54 Md. 210. 
 
 Where an attachment is sued out 
 against one partner <in a partnership.^c- 
 count under § 3276 of the Code, the decla- 
 ration in attachment need not be against 
 both partners, but only against him who 
 is thus subject to summary process. Con- 
 non V. Dunlap, 64 Ga. 680. 
 
 4. Fowble V. Walker, 4 Ohio, 64. 
 
 5. Drake on Attach. (6th Ed.) § 263. 
 
 6. Isham v. Downer, 8 Conn. 182. 
 
 7. If prior to the attachment he had 
 sold and conveyed land in good faith, 
 but the vendee did not put the deed on 
 record until afterward, but did so before 
 3. sale of the land under execution, it can- 
 not be held for the debt of the vendor. 
 Co.K V. Milner, 23 111. 476. 
 
 Nor, on the other hand, can any inter- 
 est which the defendant subsequently ac- 
 quires be reached by it. Crocker v. 
 Pierce, 31 Maine, 177. 
 
 8. Drake on Attach. (6th Ed.) § 232. 
 
 911 
 
"What Property Subject to. A TTA CHMENT. 
 
 Beal Estatei 
 
 actual seizure may well be the subject of attachment. Thus 
 whether the debtor be seized with another in severalty as tenant 
 in common, or be seized /^r my et per tout as joint tenant, his in- 
 terest, provided he could make a conveyance, is subject to attach- 
 ment.* 
 
 1. Where the levy is made upon land 
 in which the debtor is interested as tenant 
 in common, it holds such debtor's inter- 
 est notwithstanding the subsequent par- 
 tition of the property by which the debtor 
 becomes entitled to his own specific por- 
 tion in severalty. But in such case the 
 attachment follows the interest originally 
 attached without obstructing partition, 
 and if a sale be made on execution in 
 the attachment suit it must be of that 
 portion of the land set off to the debtor, 
 and not of his undivided interest. The 
 interests of joipt tenants is also liable to 
 executioh, but not of tenants by entire- 
 ties, because they are seized per lout et 
 non per my. Their interest is at once un- 
 divided and indivisible, and neither has 
 power to convey. This estate exists 
 ■where land is conveyed to husband and 
 wife by the same deed. Wade, § 252, 
 and cases cited. 
 
 The purchaser at execution sale of 
 property subject to redemption within 
 one year has no interest subject to attach- 
 ment or execution within the year — that 
 it might be redeemed. Thornton v. 
 Wood, 42 Me. 282. 
 
 Obviously until the expiration of the 
 year it could not lawfully make a convey- 
 ance. The equity of redemption is sub- 
 ject to attachment. Beams v. Leonard, 
 4 Pick. (Mass.) 277. 
 
 The interest of the mortgslgee is not 
 subject to attachment; until entry is made 
 for condition broken it was said to be 
 a mere chose in action, and even after 
 such entry its character was not substan- 
 tially changed until foreclosure. Lincoln 
 V. VVhite, 30 Me. 2gi. 
 
 On the other hand, in New York, after 
 breach of condition, the mortgagor of 
 personalty has no attachable interest in 
 the property. Norris v. Sowles, 57 Vt. 
 360; Champlin v. Johnson, 39 Barb, 
 (N. Y.) 608. 
 
 If the mortgage is fraudulent, the 
 property covered by it may be attached, 
 and without calling for an account of the 
 mortgage debt. Angler i/. Ash, 26 N.H.99. 
 
 In Tennessee it was held that the 
 equity of redemption could not be at- 
 tached in an action at law. Hilman v. 
 Werner, 9 Heisk. (Tenn.) 586. 
 
 Obviously the attachment of the equity 
 so as to be of any practical value to the 
 creditor is not without difficulty. Graht- 
 
 ing that the equity may be attached, the 
 creditor cannot perfect his title without 
 the aid of a court of chancery, but the 
 proceedings in attachment being harsh 
 and strictly statutory, a chanceljor will 
 not lend' his aid to enforce it. Kelly v. 
 Mill, 41 Miss. 267. 
 
 One holding a bond for a deed has an 
 attachable interest in the property so 
 bonded; but if he transfer such bond to 
 a bona-fiJe purchaser prior 10 the levy he 
 has not. Lambard v. Pike, 33 Me. 141. 
 
 The interest of a settler on public land 
 in a town site laid out in pursuance of 
 acts of Congress is attachable. Fessler 
 V. Haas, ig Kans. 216. 
 
 Likewise the possessory right of a mine 
 upon public land. McLaughlin v. Kelly, 
 22 Cal. 211. 
 
 Dower at common law is not an attacha- 
 ble interest until assigned. Newman v. 
 Willetts, 48 111. 534. 
 
 Nor courtesy until death of wife. 
 Greenwich Nat. Bank z/. Hall, 11 R. I. 
 124; Wade on Attach. (6th Ed.) § 252. 
 
 The tendency of our legislation is to 
 increase the efficacy of this remedy. 
 Thus in California it is held that the 
 term "land" embraces all titles, legal or 
 equitable, perfect or imperfect, including 
 such rights as lie in contract — those which 
 are executory as well as those which are 
 executed. Any interest, therefore, in 
 land, legal or equitable, is subject to at- 
 tachment or execution. Fish v. Fowlie, 
 58 Cal. 373. 
 
 The homestead is exeinpt unless aban- 
 doned. Fessler v. Haas, 19 Kans. 216. 
 
 But property cannot be converted into 
 a homestead by the debtor after levy. 
 Kelly V. Dill, 23 Minn. 435. 
 
 The fact that several tracts of land are 
 distant from each other several miles will 
 not divest either of them of the home- 
 stead protection if they be each used for 
 homestead purposes; but when the rural 
 homestead has been fixed on one of them, 
 there must be such use of the subse- 
 quently acquired parcel to invest it with 
 the homestead character as would be re- 
 quired to make an original designation 
 of a homestead. Mere intention to use 
 is not sufficient; if the tract be separated 
 from that on which the home place is 
 located, some act must be done evincing 
 an intention to use it in some way in con- 
 nection with the home place for the coro- 
 13 
 
■What Property Subject to. A TTACHMENT. 
 
 Fersonalty. 
 
 Personalty. — Bearing in mind the fact that any such property as 
 can be taken under a levy and execution^ is attachable, and that to 
 make a levy upon personalty, it is essential for the sheriff to take 
 actual possession, it is at once seen that only tangible property, i.e., 
 that which may be seized in specie, is the subject of attachment. 
 When the officer can gain possession of chattels, the property of the 
 defendant, they are-subject to seizure in whoseever possession they 
 may bei* The defendant's interest in personal property need not, 
 in order to its being subject to attachment, be several and exclusive. 
 An interest held by him in common with others may be attached, 
 and the property may be seized and removed, though the rights 
 of the other joint owjiers may thereby be impaired. In such case 
 only the undivided interest of the defendant can be sold, and the 
 purchaser becomes a tenant in common with the co-tenant.^ 
 
 fort, convenience, or support of the fam- 
 ily, or as a place of business for the 
 head of the family. Mere ownership, 
 coupled with an intention at some time 
 to use the detached tract in connection 
 with the home place for homestead pur- 
 poses, is not sufficient. Brooks v. Chat- 
 ham| 57 Tex. 31. 
 
 Where an attachment is levied upon 
 real estate belonging to the debtor whether 
 held in his own name or not, the attach- 
 ing creditor acquires a lien upon the in- 
 terest of the debtor in the land which he 
 may enforce after he recovers judgment. 
 Keene v. Sallenbach, 15 Neb. 200. 
 
 A general creditor of a non-resident 
 debtor may, by bill in chancery, attach 
 the interest of his debtor in land sold by 
 judicial sale, and subject the same to the 
 satisfaction of his demand. Herndon v. 
 Pickard, 5 Lea (Tenn.), 702. 
 
 1. Drake on Attach. (6th Ed.) § 2. 
 
 2. Wade on Attach. 263. 
 
 Written evidences of debt must be re- 
 <kiced to manual possession to make valid 
 seizure. The possession of the officer 
 must be exclusive of everybody else, par- 
 ticularly of defendant. Fibly v. Feme, 
 22 La. Ann. 1,63. 
 
 Money may be attached in specie. 
 Handy v. Dobson, 12 Johns. (N. Y.) 220. 
 Bank-notes. Spencer v. Blaisdell, 4 N. 
 H. 198. And treasury notes. State v. 
 Lawson, 7 Ark. 391. 
 
 Stock in a corporation cannot be at- 
 tached unless authorized by express stat- 
 ute. Yelverton v. Burton, 26 Pa, St. 381. 
 
 Mortgaged personal property is not 
 subject to attachment or execution for a 
 debt of the mortgagor, and a tender of 
 the mortgage debt by an attaching credi- 
 tor after the levy of his attachment on 
 the property will not cure the illegal levy. 
 Jennings v. Mcllroy, 42 Ark. 236; s. c, 
 48' Am. Rep. 61. 
 
 A mortgagor of personal property, who. 
 is rightfully in possession at the time 
 when it is wrongfully attached, may main- 
 tain an action against the attaching offi- 
 cer, although the attachment constitutes 
 a breach of a condition of the mortgage. 
 No exception lies to the giving of instruc- 
 tions which were requested by the ex- 
 cepting party. Copp v. Williams, 135 
 Mass. 401. 
 
 Where horses are placed in the custody 
 of a horse-trader, to be sold by him as a 
 part of his stock, or in such circumstances 
 as to appear to be his, and thus furnish 
 him a basis of credit, they become liable 
 for his debts, under sec. 1300 of the Code 
 of 1880, which provides that, "if any 
 person shall transact business in his own 
 name, all the property, stock, money, 
 and choses in action used or acquired in 
 such business shall, as to the creditors 
 of any such person, be liable for his debts, 
 and be in all respects treated in favor of 
 his creditors as his property." Reed v. 
 Howard, 2 Mete. (Mass.) 36; Reming- 
 ton V. Cady, 10 Conn. 44. 
 
 Semble, that where property is placed 
 in the hands of a factor or auctioneer to 
 be sold, in the usual course of his busi- 
 ness, for the benefit of the owner the 
 statute quoted would not apply. Shannon 
 V. Blum, 60 Miss. 828. 
 
 Where goods sold to a salesman in the 
 employ of the vendor remain in the ven- 
 dor's store, and in the course of trade his 
 stock is replenished "thfough purchases 
 made by the vendor with money turned 
 over to him by the vendee, as proceeds 
 of sales of these goods, an attachment 
 against the vendor may be levied on the 
 new goods as well as on the original 
 stock. Franklin v. Gumersell, 11 Mo. 
 App. 306. 
 
 3. Mercerau v. Norton, 15 Johns. (N 
 Y.) 179. 
 
 I C. of L.— 59 
 
 913 
 
What Property Subject to. A TTA CHMENT. 
 
 EzemptionB^ 
 
 Exemptions. — Property the sale of which is penal cannot be 
 attached. ^ 
 
 A fundamental principle is that an attaching creditor can ac- 
 quire no greater rights in attached property than the defendant 
 had ; the attachment only operates upoii the interest of the 
 debtor.* If, therefore, the property be in such situation that the 
 
 An officer holding an order of attach- 
 ment against the property of an individ- 
 ual partner may levy such attachment on 
 the interest of such partner, and take the 
 partnership property, or a portion thereof, 
 into his possession, and sell the interest 
 of the partner in such property. Hersh- 
 field V. Claflin, 25 Kan. 166; s. c, 37 Am. 
 Rep. 237. 
 
 The Mass Gen. Sts. c. 123, §§ 87,88, pro- 
 viding that personal property, which has 
 been attached in a suit against one part- 
 owner, shall, at the request of the other 
 part-owner, be appraised and delivered 
 to him upon his giving bond to the at- 
 taching officer, do not apply to an attach- 
 ment of partnership property in an action 
 against one partner. Breck v. Blair, 129 
 Mass. 127. 
 
 Under a writ of attachment against an 
 individual partner the whole of the part- 
 nership property cannot be taken into 
 the possession of the officer. Parsons 
 on Partnership, 356, 357 ; also 350 et seq. ; 
 20 Pa. St. 228; Newman v. Bean, 22 N. 
 H. 93; 12 N. H. 271; Buffum i/. Seavern, 
 16 N. H. 160; 14 N. H. 271; Pierce v. 
 Jackson, 6 Mass. 242; Levy v. Cowen, 
 27 La. Ann. 556; La. Ann. 444; Bears v. 
 Estill, 50 Miss. 300; Anderson v. Cheney, 
 51 Ga. 372; Menagh v. Whitwell, 52 N. 
 Y. 146; Harris v. Murray, 28 N. Y. 574. 
 
 But the levy and sale thereunder must 
 be in recognition of, and as far as possi- 
 ble in harmony with, the rights of the 
 other partners, and not in hostility 
 thereto; otherwise the officer becomes a 
 trespasser ab initio. Snell u. Crowe, 3 
 Utah, 26. 
 
 A writ of attachment issued against N. 
 W. as the sole member of the firm of N. 
 W. & Co. was levied upon a tract of 
 land belonging to W. T. Subsequently 
 the creditor discovered that W. T. was a 
 member of the firm of N. W. & Co., and 
 sued out an attachment against him for 
 the same debt. 'This writ was not levied 
 on the land above mentioned, but under 
 it W. T. was summoned to defend the 
 suit, the two attachments being treated as 
 in one case. A judgment was rendered 
 against both N. W. and W. T. as mem- 
 bers of the firm of N. W. & Co., and the 
 land was condemned to be sold to satisfy 
 the same. It was accordingly sold. Held, 
 
 that the purchaser acquired no title, as 
 the levy under the first writ did not affect 
 W. T.'s interest in the land, and the second 
 writ was not levied upon it. Armistead 
 V. Cocke, 62 Miss. 198. 
 
 In an action against the members of a 
 partnership upon a. joint and several 
 promissory note, signed by them individ- 
 ually, but not with the firm name, an at- 
 tachment was issued and levied upon the 
 interests of defendants in the partnership 
 property, upon which one attachment pre- 
 viously had been, and others were suljse- 
 quently, levied in actions against the firm. 
 Subsequently the plaintiff, under § 432 of 
 the California Code of Civil Procedure, 
 amended his complaint, by alleging the 
 partnership of the defendants, and that 
 the note was a partnership debt; but the - 
 action still ran against the defendants as 
 individuals, and judgment was entered 
 against them in that capacity. Judgments 
 having been entered in all the cases, the 
 property was sold under execution in one 
 of the cases against the firm, and the pro- 
 ceeds applied in satisfaction of that exe- 
 cution and another in a similar case. 
 Held, that the money was properly ap- 
 plied on the executions against the firm 
 in preference to those of the plaintiff. 
 Commercial Bank v. Mitchell, 58 Cal. 42. 
 
 1. Where, therefore, the sale of spir- 
 ituous liquor was forbidden by law, it 
 was held that it could not be attached, 
 because its subsequent sale under execu- 
 tion would be illegal. Nichols v. Valen- 
 tine, 36 Me. 322. 
 
 3. Drake on Attach. (6th Ed.) § 245; 
 Wade on Attach. § 264. Vide Saniuel v. 
 Agnew, 10 111. 553. 
 
 Thus, a chattel pawned or mortgaged 
 is not attachable in an action against 
 the pawnor or mortgagor. Badlam v. 
 Tucker, i Pick. (Mass.) 389. 
 
 And the pawnee may maintain trespass 
 against the officer, and recover the whole 
 value in damages^ for he is answerable 
 for the excess to the person who holds 
 the general property. Tyle v. Becket, 3 
 Bin. Pa. 57. 
 
 Under Michigan Comp. L. , § 6401, per- 
 sonal property covered by a mortgage 
 may be taken on an attachment against 
 the mortgagor. King v. Hubbell, 42 
 Mich. 597. 
 
 914 
 
What Property Subject to. 
 
 ATTACHMENT. 
 
 Exemptions. 
 
 defendant has lost his power over it, or has not yet acquired such 
 interest in or power over it as to permit him to dispose of it ad- 
 versely to others, it cannot be attached for his debt. 
 
 When property is of such nature that an attachment of it would 
 produce a sacrifice and a great injury to defendant, without pro- 
 ducing any corresponding benefit to the plaintifl, it is not at- 
 tachable.* 
 
 When property is so in the process of manufacture and trans- 
 ition as to be rendered useless, or nearly so, by having that pro- 
 cess arrested, and to require art, skill, and care to finish it, and 
 
 An attachment of mortgaged personal 
 property in the possession of the mort- 
 gagor is invalid if the mortgagee, sum- 
 moned as trustee, under the Massachu- 
 setts Gen. Sts. c. 123, § 67, is a resident 
 of another State, and has no usual place 
 of business in this Commonwealth. Al- 
 len V. Wright, 134 Mass. 347. 
 
 Where the mortgagor of a chattel, by 
 the terms of the mortgage, holds at the 
 will of the mortgagee, his equitable in- 
 terest is not subject to attachment. Sams 
 V. Armstrong, 8 Mo. App. 573. 
 
 So goods upon which freight is due 
 cannot be attached without paying freight ; 
 so goods manufactured cannot be at- 
 tached in an action against the general 
 owner, for the manufacturer has a lien 
 on them. Townsend v. Newell, 14 Pick. 
 (Mass.) 332. 
 
 Property in the hands of a bailee for 
 hire cannot be attached in a suit against 
 the bailor during the term of the bail- 
 ment. Hartford v. Jackson, 11 N. H. 
 
 145- 
 
 Nor can personalty leased for a term 
 of years be seized under an attachment 
 against the lessor, even though the sale 
 of it by the sheriff be with a reservation 
 of the lessor's right to retain posses- 
 sion during the continuance of the term. 
 Smith V. Niles, 20 Vt. 315. 
 
 Fratid. — Thus the vendor may rescind 
 the contract because of false representa- 
 tions, and as against attaching creditors 
 of debts claims the property as though 
 he had never parted with the possession. 
 Wade on Attach. § 264. 
 
 Where goo4s were obtained upon a 
 letter of credit which the party giving 
 it told defendant not to use, it was held 
 this gave the wrongdoer only a naked 
 possession, which was not attachable, and 
 the party whose credit was used against 
 his consent was entitled to the goods as 
 against attaching creditors of the pur- 
 chaser. Gasquet v. Johnson, 2 La. 514. 
 
 Even where the purchaser of goods 
 can be shown to have made the contract 
 and obtained possession with the inten- 
 
 tion not to pay for them, the vendor may 
 rescind the sale and recover the goods as 
 against all save bona-fide purchasers or 
 attachers who became creditors on the 
 faith of the goods being in the posses- 
 sion of defendant. Thompson v. Rose, 
 16 Conn. 71; Wiggin u. Day, g Gray 
 (Mass.), 47. 
 
 As a rule, mere equities cannot be 
 reached by attachment. Hence a levy 
 by virtue of an attachment upon a prom- 
 issory note creates no lien thereon, un- 
 less at the time the attachment debtor 
 has a legal title thereto. Where, there- 
 fore, before the levy, the debtor has part- 
 ed with the legal title, although with in- 
 tent to defraud his creditors, as there re- 
 mains in him only an equity for their 
 benefit, this cannot be reached by the at- 
 tachment, and the sheriff may not assail 
 the transfer as fraudulent. Anthony v. 
 Wood, 96 N. Y. 180. 
 
 An employee or tenant working on 
 shares has no attachable interest in the 
 product of his labor — at least not until it 
 is in condition to be divided, and he is 
 tenant in common of such proceeds. 
 Frost V, Kellogg, 23 Vt. 308 ; Esdon v. 
 Colburn, 28 Vt. 631. 
 
 Has the husband at common law an 
 attachable interest in his wife's choses in 
 action before he has reduced them to 
 possession ? This question was answered 
 in the affirmative in Massachusetts, Ma- 
 ryland, Delaware, Virginia, and Missoui ; 
 in the negative in Pennsylvania, New 
 Hampshire, Vermont, North Carolina, and 
 South Carolina. Since the passage of the 
 married woman's acts in most of the 
 States the question is of small moment. 
 Drake on Attach. (6th Ed.) § 247. 
 
 1. Such is the rule in relation to de- 
 fendant's books of account or private pa- 
 pers. Oystead v. Shed, 12 Mass. 506; 
 Bradford v. Gillespie, 8 Dana (Ky.), 67. 
 Also perishable goods. Wallace v. Bar- 
 ker, 8 Vt. 440. ' 
 
 It has been held a growing crop of 
 grass could not be attached. Norris v. 
 Watson, 2 Foster (N. H.), 364. 
 
 915 
 
•What Property Subject to. A TTACHMENT. 
 
 Exemptions. 
 
 when completed it will be a different thing, it is not subject to 
 attachment. 1 
 
 Property in custodia Icgis cannot be attached,'-* nor goods in 
 actual use when worn about the defendant's person.^ The 
 property of individuals or corporations who owe duties to the 
 public is not for that reason exempt, except so long as it is in 
 actual use in the discharge of such duties.* It is not necessary 
 that defendant's property, in order to be subject to attachment, 
 should be in his possession. It maybe attached wherever found.® 
 The possession of personal property is an indication of owner- 
 ship, and, if nothing appear to the contrary, may and should be 
 subject to attachment.** 
 
 ^ 1. Hides in vats in process of tanning 
 have been exempted. Bond v. Ward, 7 
 Mass. 123. 
 
 If, however, the process is nearly com- 
 pleted, and requires nothing but ordinary 
 care to finish it, if the officer see fit to 
 attach and take possession of the prop- 
 erty, and run the risk of being able to 
 keep it properly, he has the right to do 
 so, and will not be liable for slight non- 
 feasance. Hale V. Huntly, 21 Vt. 147; 
 Drake on Attach. (6th Ed.) § 259. 
 
 2. Thus goods attached by an officer 
 and in his possession cannot be attached 
 by another officer. So goods held by a 
 U. S. Revenue Collector to enforce pay- 
 ment of, or as security for, the duties 
 thereon are not attachable by a. creditor 
 of the importer. Drake on Attach. (6th 
 ed.)§ 281, Taylor w.Carryl, 24 Pa. St. 259. 
 
 Repeated attempts have been made to 
 levy attachments or executions upon 
 money collected under execution; but 
 such money while in the hands of the 
 officer who collected it has been uniform- 
 ly held to be in custodia legis, and for 
 that and other reasons not subject to his 
 levy. Drake on Attach. (6th Ed.) § 281. 
 
 The rule, however, applies only where 
 the officer is bound to have the money in 
 hand to pay the execution plaintiff, and 
 not to cases in which he has in his posses- 
 sion, after satisfying the execution, a 
 surplus of money raised by the way of 
 sale of the property. Such surplus is 
 the property of the execution defendant, 
 and being held by the sheriff in a private 
 and not in an official capacity, it may be 
 attached in his hands. Drake on At- 
 taeh. (6th Ed.) § 281, and cases cited. 
 
 Moneys in the hands of a sheriff, 
 raised by him in pursuance of a decree 
 of the court of chancery, are liable to 
 seizure by virtue of a writ of attach- 
 ment. Conover v. Ruckman. 33 N. J. 
 Eq. 303. 
 
 Judgment debts and moneys collected 
 on execution by and in the hands of a 
 
 sheriff are liable to attachment under 
 process issued in an action against the 
 judgment creditor. The right so to at- 
 tach is not affected by the fact that the 
 judgment debtor is also the attaching 
 creditor. Wehle v. Conner, 83 N. Y. 231. 
 Property in the possession of an as- 
 signee under a voluntary assignment, 
 purporting to be made by the debtor in 
 pursuance of the statute of Minnesota, 
 approved March, 1881, is not in custodia 
 legis, so as to exempt it from seizure by 
 a writ of attachment issued out of. the 
 Circuit Court of the United States. Lapp 
 V. Van Norman, 19 Fed. Repr. 406. 
 
 3. The attempt to engraft this princi- 
 ple of the law of distress was only par- 
 tially successful. It appears to have 
 been adopted in Tennessee and Massa- 
 chusetts. Bell V. Douglass, i Yerger 
 (Tenn.), 397; Potter v. Hall, 3 Pick. 
 (Mass.) 368. 
 
 In Vermont the doctrine is carried to 
 great length. It is not necessary that the 
 horse be in actual use, at the time of at- 
 tachment, to be exempt. It is exempt if 
 the owner keeps it with the honest inten- 
 tion and purpose of using it, within a rea- 
 sonable time, for team work, to enable 
 him with the aid of the animal to procure 
 a livelihood. Future intended use is as 
 controlling upon the question of exemp- 
 tion as any past use. Rowell v. Powell, 
 53 Vt. 302. Sullivan v. Davis, 50 Vt. 
 648, distinguished, There, the colt 
 claimed to be exempt was. too young for 
 team work. 
 
 4. Drake on Attach. (6th Ed.) § 252. 
 Under the Mass. Pub. Sts. c. 161, |§ 38, 
 
 39, railroad cars are, for the purposes of 
 attachment, personal property; and an 
 attachment of them in the manner 
 pointed out in the Pub. Sts. c. 161, § 6g, 
 is sufficient. Hall v. Carney, 140 Mass. 
 131. 
 
 6. Livingstones. Smith, 5 Pet. (U.S.) go. 
 
 6. Killey v. Scannell, 12 Cal. 73. 
 
 An officer making an arrest, or a jailer 
 
 916 
 
■What Property Subject to. A TTACHMENT. 
 
 Ezemptiow. 
 
 upon committing a person to jail, may 
 search him, and take from him not only 
 all offensive weapons, but also all other 
 property which might be used b.y him in 
 effecting an escape. But where the 
 sheriff upon committing the defendant to 
 jail took from his person two watches 
 and some money, which were in no way 
 connected with the crime with which he 
 was charged, and which could not be 
 used as evidence in the prosecution, it 
 was his duty to return them, and while 
 he retained them, his possession was 
 that of the prisoner, and they were no 
 more subject to attachment in an action 
 against the prisoner than if they had 
 been in his pockets. In such a case the 
 consent of the prisoner to the search and 
 to the taking of the property by the offi- 
 cer cannot be inferred from the fact that 
 he made no resistance thereto. Bank v. 
 McLeod, 65 Iowa, 665. 
 
 Statutory Exemptions. — Tools or im- 
 plements of a man's trade are generally 
 exempt from attachment. Fish v. Street, 
 27 Kan. 270. 
 
 A pedler's wagon designed to be 
 used in trade from place to place, with 
 the body hung upon three elliptic steel 
 springs, with drawer behind and doors at 
 the sides, and a railing around the top, and 
 dasher in front, is not a vehicle which 
 is exempted from attachment and execu- 
 tion under Maine R. S. c. 81, § 5g, clause 
 9, which exempts "one cart or truck- 
 wagon." Smith V. Chase, 71 Me. 164. 
 
 A defendant in attachment, claiming 
 (under the statute, subdivision 6 of sec. 
 26, ch. liii. Colorado Gen. Laws) as ex- 
 empt from levy " implements or stock in 
 trade . . . used or kept for the purpose 
 of carrying on his trade or business," 
 not specifically exempt by law, is entitled 
 to select such articles as are suitable to 
 his trade or business; and a failure on 
 his part to make such selection is a 
 waiver of his right thereto. A sheriff is 
 not liable for damages for levying an at- 
 tachment upon property not specifically 
 exempt by statute, in case the defendant 
 declines to designate the articles he de- 
 sires to claim. Under the statute, no 
 property is exempt from levy to satisfy 
 a claim for the purchase-money thereof; 
 and a defendant cannot, by selecting 
 such property, under the sixth subdivi- 
 sion of the exemption law, supra, ex- 
 empt it from such liability. Beliyneer 
 V. Cook, 5 Colo. 395. 
 
 Where the exemption of property from 
 attachment is of specific things in nu- 
 mero, the number of things exempt is not 
 doubled whpn ownership is of an undi- 
 vided half of each. Thus, one who 
 
 owns an undivided half of a yoke of 
 oxen, of a yoke of steers, and of more 
 than twenty sheep, is entitled to an ex- 
 emption in either the oxen or the steers, 
 and in ten of the sheep — not in both 
 oxen and steers and in twenty sheep. 
 A grindstone kept and used on a farm in 
 the ordinary manner is exempt from at- 
 tachment. White 1). Capron, 52 Vt. 634. 
 
 A man owning two horses only one of 
 which was exempt gave a bill of sale of 
 one, which described it as "kept for 
 team work and exempt from attachment." 
 There was no change of possession. 
 Held, that the horse could not be at- 
 tached by the owner's creditors; that 
 the owner could make his selection be- 
 fore attachment: that no change of 
 possession was necessary; that, having 
 selected which of the two was exempt, 
 evidence tending to show that he selected 
 the other one, after attachment was in- 
 admissible. Vermont R. L. s. 1556, Ex- 
 emptions, construed. George v. Bassett, 
 54 Vt. 217. 
 
 In Wilkinson v. Wait. 44 Vt. 508, the 
 court held that where the debtor had sold 
 one of two yoke of oxen, on condition 
 that they should remain his until paid 
 for, and delivered them, but nothing had 
 been paid on them, the other yoke was 
 exempt, although he made no claim to 
 that effect when they were subsequently 
 attached, and notwithstanding his inter- 
 est as conditional vendor in the oxen 
 sold. 
 
 The right given by section 3 of the 
 Homestead Act, as amended February 
 27, 1873 (70 Ohio L. 51), to a debtor who 
 is the head of a family and not the owner 
 of a homestead, to hold exempt from 
 levy and sale property as therein men- 
 tioned, to be selected by him "at any 
 time before sale," applies as well to 
 property levied on by attachment as by 
 execution ; and an order for the sale of 
 the attached property, made in the pro- 
 ceeding in attachment, does not prevent 
 the debtor from exercising his right of 
 selection after the making of such order 
 of sale. Where property has been levied 
 on by attachment, and, pending the suit, 
 the debtor assigns all his property for 
 the benefit of creditors, excepting only 
 such as he may lawfully hold exempt 
 from execution, the right of the debtor to . 
 select the attached property as exempt 
 from sale is not thereby waived. Close 
 V. Sinclair, 38 Ohio St. 530. 
 
 The personal-property exemptions of 
 an insolvent debtor cannot be reached 
 by an attachment or execution, and his 
 right to such exemptions is not forfeited 
 by the fraudulent conveyance of his 
 
 917 
 
What Property Subject to. ATTACHMENT. Execution and Eeturn of Writ. 
 
 8. Execution and Return of Writ. — The writ should be directed 
 to the executive officer of the court or courts of similar jurisdic- 
 tion in other counties or districts whose duty it is to obey the 
 mandate contained in the process; it must be directed to him in 
 his official character, and be served by the officer to whom it is di- 
 rected. ^ In proceeding under the writ the officer need only look 
 into the sufi&ciency of the process he has to execute. If it be 
 
 property. Naumburg v. Hyatt, 24 Fed. 
 Repr. 8gS. 
 
 Where a plaintiff in replevin has re- 
 covered a judgment for a horse, or his 
 value, and also for damages for the 
 wrongful taking and detention of the 
 horse, the damages for the taking and 
 detention are not exempt from his debts 
 because the horse is exempt property. 
 Johnson v. Edde, 58 Miss. 664. 
 
 A public officer, charged virith a trust 
 created by a public statute in respect to 
 funds in his possession, cannot be made 
 liable in respect to them by an attach- 
 ment in favor of a person not claiming 
 under the trust. Providence, etc., Co. 
 •V. Virginia Ins. Co., 11 Fed. Repr. 284; 
 s. c, 20 Blatchf. (U. S.) 405. 
 
 A claim for speculative damages for a 
 tort in a case which presents no fixed 
 standard by which those damages can be 
 liquidated is not liable to attachment ex- 
 ecution. Selheimer v. Elders, 98 Pa. 
 St. 154. 
 
 Goods of household character are gen- 
 erally exempt. Griffith v. Bailey, 79 Mo. 
 472; Copp V. Williams, 135 Mass. 401. 
 
 The property of a married woman is 
 exempt unless made liable to attachment 
 by statute. Williams v. St. Louis, etc. , 
 R. Co., 8 Mo. App. 135; Griffith v. Bailey, 
 79 Mo. 472. 
 
 A judgment in a personal action can 
 be obtained against a married woman 
 only for necessaries contracted for by 
 herself, or in some of the cases enumer- 
 ated in the act of Assembly; and the facts 
 to fix her liability must affirmatively ap- 
 pear on the record, otherwise the judg- 
 ment is void. Where an attachment exe- 
 cution issued upon a judgment against a 
 married woman, which was void for the 
 above reasons, and the defendant in the 
 attachment pleaded nulla bona, the de- 
 fendant in the judgment can nevertheless 
 come in at the trial and show that the 
 judgment is void and so prevent the mar- 
 ried woman's money or property being 
 taken by the attachment. Hugus v. 
 Dithridge Glass Co., 96 Pa. St. 161. 
 
 Medical services rendered the family are 
 within the provisions of Missouri R. S., 
 section 3295, subjecting her property to 
 attachment and execution for debts and 
 
 liabilities createdby the husband for ne- 
 cessaries for the wife and family. Alex- 
 ander V. Lydick, 80 Mo. 343. 
 
 Under the Massachusetts Gen. Sts. c. 
 58, § 62, if a policy of insurance is ex- 
 pressed to be for the benefit of the wife of 
 the assured, her children have no interest 
 in it during her lifetime, and her interest 
 in it may be attached by a creditor of 
 hers under the Gen. Sts. c. 113, § 2, cl. 11, 
 although her husband ' is living, without 
 making their children parties defendant, 
 Troy V. Sargent, 132 Mass. 408. 
 
 Where there is no prescribed form for 
 making a claim of exemption it may be 
 made orally in court. Bassett v, Tri- 
 man, 7 Colo. 275. 
 
 And if an officer attaches personal 
 property which is exempt from at- 
 tachment, an omission of the owner 
 to claim it as exempt does not, as mat- 
 ter of law, constitute a waiver of the 
 exemption. Copp v. Williams, 135 Mass. 
 401. 
 
 In the sale of personal property exempt 
 from attachment no change of possession 
 is required in order to make it valid as 
 against subsequent attaching creditors. 
 Being exempt, the retention by the vendor 
 does not enable him to acquire a false 
 credit on the strength of it. Foster v. 
 McGregor, 11 Vt. 595; Jewett >. Guyer, 
 38 Vt^ 218; George v. Bassett, 54 Vt. 
 217. 
 
 1. If the writ is directed to the sheriff 
 of a particular county it cannot be served 
 by the sheriff of a different county, 
 though property of defendant be found 
 within latter's bailiwick and none in that 
 of former. Mendc-son v. Specker, 79 
 Ky. 509; Wade on Attach. § 125. 
 
 It may, however, be served by deputy- 
 sheriff. Under the New York code the 
 required certificate may be signed and 
 served by the deputy-sheriff. Gibson v. 
 Nat. Bank, 98 N. Y. 87. 
 
 The property to be affected must 
 be within the county at the time 
 of service; hence the service of an 
 attachment upon a railway company 
 creates no lien upon property not within 
 the county at the time it is served. Suth- 
 erland V. Second Nat. Bank, 78 Ky. 250; 
 s. c, 6 Am. & Eng. R. Cas. 368. 
 
 918 
 
£zeoution and 
 
 ATTACHMENT. 
 
 Betuin of Writ. 
 
 regular on its face and shows that it was issued by competent au- 
 thority, he will be protected against the consequences of any pre- 
 vious errors or omissions, anyOfalse statements in the affidavit, or 
 insufficiency in the undertakmg.* In order to create a lien even 
 after all the prerequisites thereto have been complied with, it is 
 essential that the executive officer having charge of the writ omit 
 no act in making the levy which the governing statute prescribes.* 
 In executing a levy upon personal property of a tangible sort the 
 officer must take possession, and this possession, to render the at- 
 tachment effectual as against the defendant or subsequent pur- 
 chasers, must be actual, in the sense that it takes the property 
 from the immediate control of the defendant and gives the officer 
 custody over it.^ 
 
 1. Whether it be necessary or not for 
 the writ to recite the preliminary steps 
 to the issuing of the attachment, it will 
 be unnecessary for him to look beyond 
 the writ to satisfy himself that these re- 
 ■quirements have been complied with. 
 Garnett v. Wimp, 3 B. Mon. (Ky.) 360; 
 Bogert V. Phelps, 14 Wis. 88. 
 
 An invalid writ of attachment will not 
 justify the officer who executes it in seiz- 
 ing property in the possession of mort- 
 gagees. Mathews v. Dengmore, 43 Mich. 
 46. 
 
 2. If any of the provisions of the stat- 
 ute are not complied with by the officer 
 in levying or executing his writ, the lien 
 obtained is lost. Greenvault v. Farmers', 
 ■etc., Bank, 2 Doug. (Mich.) 502; Buckley 
 V. Lowry, 2 Mich. 420; Roelofson v. 
 Hatch, 3 Mich. 277; Millar v. Babcock, 
 2g Mich. 526; Adams v. Abram, 38 Mich. 
 302; Fairbanks v. Bennet, 52 Mich. 61. 
 
 3. Wade on Attach. §§ 12, 129. 
 Where property is in the possession of a 
 
 receiptor upon an attachment the officer 
 who placed it there may make another 
 attachment or levy without an actual seiz- 
 ure by making return thereof and giving 
 notice to the bailee of such attachment or, 
 levy and that he must hold the property 
 to answer the same. But if the property 
 never came to the actual possession of 
 the receiptor, or has been returned by 
 him to the defendant, it must be seized 
 wherever it can be found upon such sub- 
 sequent attachment or execution. Bell 
 V. Shafer, 58 Wis. 223. 
 
 To constitute a valid levy of a writ of at- 
 tachment, under § 2967 of the Code, the 
 officer having the writ must do what 
 amounts to a change of possession of the 
 property, or something which Is equiva- 
 lent to a claim of dominion, coupled with 
 the power to exercise it. Crawford v. 
 I^ewell, 23 Iowa, 453. 
 
 And so where the officer having 
 
 the writs in question, merely barricaded 
 the front door of a store-room which 
 he found locked, leaving the back door 
 unguarded, the key thereof being in 
 the control of the claimant of the 
 goods within, held that there was no val- 
 id levy on the stock of goods, and even 
 if the claimant of the goods at the time 
 recognized the levy as valid, that did not 
 make it so. Bickler v. Kendall, 66 Iowa, 
 703. 
 
 An officer on making a levy upon per- 
 sonalty, must reduce the property to actual 
 possession in so far as may be, and must 
 maintain such custody and control as will 
 give unequivocal notice thereof. This is 
 not done in the case of a portable engine 
 by simply telling the owners that it is at- 
 tached, leaving it in their hands with full 
 permission to work it as before, and ask- 
 ing a man who lives in the neighborhood 
 to keep an eye on it that it is not re- 
 moved. Sams V. Armstrong, 8 Mo. App. 
 573- 
 
 To make a legal, valid levy upon per- 
 sonal property the officer must do such 
 acts as that but for the protection of the 
 writ he would be liable in trespass. A 
 levy under which the officer does not have 
 actual control of the personal property 
 levied upon, with power of removal, is 
 invalid. Rix v. Silknitter, 57 Iowa, 262. 
 
 A deputy-sheriff can maintain an at- 
 tachment of personal property on the 
 farni of an attachment debtor who does 
 not reside upon it, through a receiptor who 
 obtains the record-title to the farm, for 
 the purpose of keeping such property 
 there, and the direction and control of 
 the agents of the debtor in charge of the 
 farm for him, one of whom was placed 
 in chief control after the attachment was 
 made. Dudley v. Lamoille, etc.. Bank, 
 14 Fed. Repr. 217. 
 
 Under the Code of Procedure, §§ 232- 
 6, a debt evidenced by a negotiable secur- 
 
 919 
 
Execution and Return of Writ. A TTACHMENT. 
 
 Kind of Fosseaaion. 
 
 Kind of Possession. — The ppssession while actual need not always 
 be mainual ; but while the method of obtaining possession may be to 
 a certain extent secundum subjectam generis, it must always be the: 
 recognized way of obtaining control and dominion over the par- 
 ticular species of property.^ The doctrine of constructive posses-^ 
 sion, however, is very sparingly applied, and always restricted by 
 the well-settled principle that a property upon which a levy is to. 
 be made must be in view of the officer at the time of making such 
 levy* 
 
 It is the duty of the officer not only to execute the writ 
 promptly,^ and to make a sufficient levy, but to do so consistently 
 with the rights of the defendant and third parties. Hence if in 
 executing the writ, he cause the defendant unnecessary vexation 
 or loss,* or break open the doors of his house,^ or obtain pos- 
 session of the property through any kind of violence or fraud, he 
 will be personally liable. A levy accomplished through fraud or 
 violence is absolutely void.* The officer is authorized to execute 
 the writ upon the property of the defendant ; and if he levies upon 
 the property of third parties, he becomes a trespasser ab initio? 
 
 ity owned by and in the hands of an at- tachment is wholly divested of his pos- 
 session of the goods, held that the levy is. 
 sufficient as to the defendant, whether it 
 be sufficient or not as to some third per- 
 son who claims some interest in the 
 goods, and who may not be wholly and 
 entirely divested of his possession. My- 
 ers V. Cole, 32 Kan. 138. 
 
 A levy can only be made upon a pro- 
 missory note obtaining actual custody of 
 the instrument. Anthony v. Wood, 96. 
 N. Y; 181. 
 
 2. Barrett v. White, 3 N. H. 213. 
 
 3. If he fail to make the levy uniil the 
 rights of third parties have intervened he 
 will be personally liable for the deficiency. 
 Wade on Attach. § 131, and cases cite^. 
 
 4. To have property seized released 
 on ground of excessive levy, evidence 
 must show the value of the property clear 
 of incumbrances. Gilman v. Andrews, 
 66 Iowa, 116. ' 
 
 A removal of cut grass in an unfit, 
 and improper season was held abusive. 
 Barrett v. White, 3 N. H. 213. See also 
 Taylor i/. Jones, 42 N. H. 25; Peeler v. 
 Stebbins, 26 Vt. 644. 
 
 5. He may, however, break open an 
 inner door; and it is well settled that the 
 mere fact that property is in a safe will 
 not protect it. Wade on Attach. § 129. 
 
 6. Wade on Attach. § 129. 
 
 7. Possession is usually relied on as a 
 justification. When property is claimed 
 by a third person under an alleged 
 purchase without delivery, it is held 
 that the officer cannot justify the tak- 
 
 tachment debtor could be attached by 
 serving the attachment upon the maker 
 of the security. While the attachment 
 might be defeated bya subsequent transfer 
 of the security to a bona-fide holder for 
 value, payment thereof by the maker to 
 one who to his knowledge did not hold it 
 for value or in good faith, but simply for 
 the benefit of the attachment debtor, was 
 no defence to an action to enforce the 
 lien of the attachment. Bills v. Nat. 
 Park Bank, 89 N. Y. 343 
 
 1. Wade on Attach. (6th Ed.), 129. 
 
 An unripe growing crop is personal 
 property not capable of manual delivery, 
 and an attachment may be levied upon it 
 as such. An attachment upon such prop- 
 erty in the possession of the defendant is 
 sufficiently levied by serving upon him 
 copies of the writ and statutory notice; 
 and if the sheriff does nothing further un- 
 til the crop is ripe, when he gathers it, 
 there is no abandonment of the attach- 
 ment. Raventas v. Green, 57 Cal. 254. 
 
 An attachment upon machinery bolted 
 to the freehold is binding if the sheriff 
 obtains full control of it, and he need not 
 detach and remove it either to perfect his 
 levy or to deliver possession on receipt 
 of a forthcoming bond. Patch v. Wes- 
 sels, 46 Mich. 249. 
 
 Where an officer levies an attachment 
 upon certain goods subject to a chattel 
 mortgage and takes possession of the 
 goods as against all persons except the 
 mortgagee, and the defendant in the at- 
 
 930 
 
Execution and 
 
 ATTACHMENT. 
 
 Beturn of Writ. 
 
 In levying upon the property of tenants in common the entire thing 
 passes under control of the officer for the reason that segregation 
 is impossible ; but the sale is only of the interest of the defend- 
 ant.^ When perishable goods are levied upon, they are sold by 
 order of court and the lien transferred to the purchase-money.'-* 
 The mortgagor of chattels may demand payment of his debt 
 before the mortgaged property is attachable.^ In the attachment 
 of personal property the officer obtains a special property in 
 the thing attached, and can maintain either trover or trespass.* 
 In the attachment of real estate he obtains no such property, 
 with its concomitant right of possession.^ 
 
 Return. — The return should state facts and not merely conclu- 
 sions of law* and the following facts should appear: (i) date of 
 
 ing on the ground that the alleged 
 sale is fraudulent, without proving the 
 indebtedness of defendant to plaintiff to 
 show that the party he represents is 
 within one of the classes to be protect- 
 ed. Miller V. Bannister, 109 Mass. 2S9, 
 § 3 a. 
 
 Goods Confased. — When the third party 
 is in possession of property and fails or 
 refuses.through unwillingness or inability, 
 to point out that which he claims as his 
 own, the officer will be justified in mak- 
 ing the levy upon the whole. Robinson 
 V Holt, 39 N. H. 557. 
 
 In other States the question has turned 
 apon the good faith of the claimant. 
 Hasseltine v. Stockwell, 30 Me. 237; s. c, 
 50 Am. Dec. 627; Weil v. Silverstone, 6 
 Bush (Ky.), 698; Smith v Sanborn, 6 
 Gray (Mass.), 134; Treat v. Barber, 7 
 Conn. 274; Wade on Attach. § 134. 
 
 Indemnity. — It is proper practice for an 
 officer before levying a writ upon personal 
 property, when the ownership is in dis- 
 pute, to require indemnity. If the writ be 
 regular on its face and the officer acts 
 in good faith, he will be entitled to reim- 
 bursement of all damages he may sus- 
 tain, should the service prove to be a 
 trespass. The remedy on such bond is 
 equally availing whether it be a statutory 
 bond or a voluntary obligation but, to be 
 held valid, the act to be done must not 
 be in contravention of a statute or against 
 the peace or policy of the law. Porter v. 
 Stopp, 6 Colo. 32. 
 
 An attaching officer to whom has been 
 given a bond by the defendant, with 
 sureties, conditioned to indemnify and 
 save harmless the officer "of and from 
 all suits, damages, and costs whatsoever" 
 to which the officer " may be liable," as 
 well as the costs which he may "be 
 obliged by law to pay to any person or 
 persons" by reason of said attachment, 
 may, in a suit upon the bond, recover of 
 
 the defendant counsel fees reasonably in- 
 curred in the defence of a suit occasioned 
 by tlje attachment; and he may recover in 
 such suit, although in the suit against him 
 judgment was entered against him, by 
 agreement, — there being no evidence that 
 the judgment was collusive or fraudulent 
 as affecting the parties to it, or others 
 collaterally affected, or that it could have 
 been successfully defended. Lindsey v. 
 Parker, 8 N. Eastern Repr. (Mass.) 745. 
 
 No authority is given by the Code of 
 Civil Procedure to order, on motion of 
 the attaching creditor, a person holding 
 property of one against whom attachment 
 has been issued, to deliver it to the sheriff. 
 An action or proceeding to reduce such 
 property to the possession of the sheriff 
 must be instituted by him in his name or 
 in that of the debtor. Hall v. Brooks, 
 89 N. Y. 33. 
 
 1. Wade on Attach. S 135. 
 
 2. Wade on Attach. § 136. 
 
 The sheriff may be held for their value 
 on his bond. The liability is not ex- 
 tinguished when the proceeds of the sale 
 are paid over to owner on motion, he 
 having established his right as an inter- 
 venor. Nor is the fund chargeable with 
 costs. Wade on Attach. § 136. 
 
 3. Wade on Attach. § 139, 
 
 4. Lathrop v. Blake, 23 N. H. 46; 
 Newton V. Adams. 4 Vt. 437. 
 
 5. Oldham v. Scrivener, 3 B. Mon. 
 (Ky.) 579- 
 
 6. Thus are turn, "served according to 
 law," " served according to statute in 
 such case made and provided," served 
 as "a garnishee," was held fatal be- 
 cause a mere conclusion of law and not 
 a staternent of facts from which the con- 
 clusion could be drawn by the court. 
 Oldham v. Scrivener, 3B. Mon.(Ky.) 579; 
 Crisman v Swisher, 28 N. J. L. 149; 
 Moore v. Coats, 43 Miss. 225. See also 
 Ezelle V. Simpson, 42 Miss. 515. 
 
 931 
 
Execution and Eeturn of Writ. A TTA CHMENT. 
 
 Amendment. 
 
 levy ;i (2) that the levy was made within the officer's bailiwick ;* (3) 
 a description and value of the property levied on ^ (4) that it was 
 levied on property of defendant; (s) the manner of making the 
 levy, whether by possession or otherwise; (6) the return should 
 be true, (7) and should show by whom the levy was made ; (8) 
 date of return.*" 
 
 The return, except in the case of fraud or violence, is conclu- 
 sive upon the defendant and those claiming under him by subse- 
 quent purchase.* 
 
 Amendment. — Amendments can only be made on application to 
 court and leave granted. Such an application is addressed to 
 the sound discretion of the court, except when'it is made too late ;^ 
 but while the court will, upon application^ allow such amendments, 
 it will not compel them to bd made. * 
 
 1. Date of levy is necessary that k 
 may appear that the writ was executed 
 subsequent to its date. Wade on Attach. 
 §141. 
 
 3. Wade on Attach. § 142. The fact 
 may be informally stated. Marnine v. 
 Murphy, 8 Ind. 272. 
 
 3. Description of property attached is 
 essential to attachment of real estate. < It 
 should be complete in itself and contain 
 such a description of the property as will 
 suffice to establish its identity without the 
 aid of presumption or parol testimony. 
 Pond V. Baker, 55 Vt. 400. 
 
 The return should be made by the 
 officer who made the levy^he to whom it 
 is directed. If made by an unauthorized 
 >third person it will be void. Hughes v. 
 Martin, i Ark. 386. 
 
 Where the sheriff intended to attach 
 land in township 67, but the return on his 
 writ showed 4n attachment of land in 
 township 68 only, but his entry in the in- 
 cumbrance-book recited an attachment of 
 land in township 67, held, that such entry 
 did not constitute constructive notice to 
 subsequent purchasers and incumbran- 
 cers of an attachment of land in township 
 67. Collier v. French, 64 Iowa, 577. 
 
 3a. Wade on Attach. § 140 et seq. 
 
 4. Morse v. Smith, 47 N. H. 474. 
 
 5. Baxter v. Rice, 21 Pick. (Mass,) 
 197; Miller v. Shackelford, 4 Dana (Ky.), 
 264; Hill V. Cunningham, 25 Tex. 25; 
 Myers v. Prosser, 40 Mich. 644. 
 
 6 Maris v. Schermerhorn, 3 Whart. 
 (Pa.) 113; Wade on Attach. § 150. 
 
 Examples of Befepts Curable or Amend- 
 able, — The attachment being levied by a 
 proper officer, any mistake in directing it 
 is amendable, and therefore neither the 
 process nor the levy is void for the mis- 
 direction. Warren v. Purtell, 63 Ga. 
 428. 
 
 The return of an officer on an order of 
 
 attachment, which attachment is levied 
 upon real estate, should show that the 
 officer left with the occupant, or, if there 
 were no occupant, in a conspicuous place 
 on the real estate, a copy of the order. 
 But an omission so to state in the return 
 is like the lack of an official signature — 
 an amendable defect. Wilkins v. Tour- 
 telotte, 28 Kan. 825. 
 
 The direction of attachment to sheriffs 
 and constables, when it ought to be di- 
 rected to constables only, is amendable; 
 and the levy being made by a constable, 
 the proceeding is not void. Buchanan v. 
 Sterling, 63 Ga. 227. 
 
 A blank date left in the attestation of 
 the clerk to a writ of attachment issued 
 by him may be filled on motion when 
 the writ itself shows the date of its issu- 
 ance. Brack v. McMahan, 61 Tex. i. 
 
 Discrepancy between attachment and 
 levy as to whose possession property was 
 in, immaterial after replevy. Cooper v. 
 Lockett, 65 Ga. 702. 
 
 A writ of attachment is not invalid for 
 containing a summons for the defendant, 
 and garnishment clause. Weil v. Kittay, 
 40 Ark. 528. 
 
 To support a judgment by default, in 
 an action commenced by attachment 
 which is levied on land, if the sheriff's 
 return states that he left notice in writing 
 of the levy at the residence of the defend- 
 ant (Code, § 3260), it will be presumed 
 that the defendant resided in the county, 
 although the record does not affirmatively 
 show it. McAbee v. Parker, 78 Ala. 
 573- 
 
 Where on its face a writ of attachment 
 embraces nothing but the defendant's in- 
 terest, or his distributive share in the 
 personal assets in an administrator's 
 hands, and the return of service shows no 
 attachment of lands or interest therein, 
 and it was admitted the administrator was 
 
 923 
 
Bonds to Bissolve. 
 
 A TTA CHMENT. 
 
 Bail Bond. 
 
 9. Bonds to Dissolve. — Bonds to dissolve the attachment are of 
 two kinds — bail bonds and delivery bonds. 
 
 Bail Bonds. — A bail bond is a bond whereby the obligor or 
 obligors undertake to pay any judgment recovered against the 
 defendant.^ It is the defendant's right to give this bond at any 
 
 not in possession of the land, the writ 
 and service do not bind the defendant's 
 interest in the real estate of the decedent. 
 Roth's App., 94 Pa. St. i86. 
 
 1. Drake on Attach. (6th Ed.) § 322, a. 
 
 The action must be sufficiently de- 
 scribed in the bond to identify the bond 
 with the action. Thus if an action is 
 brought against A and B jointly, and 
 process is served only upon A andi his 
 property alone attached, and a bond is 
 given by a third person to dissolve the 
 attachment, in which the action is de- 
 scribed as against A alone, and the condi- 
 tion is to pay any judgment that may be 
 recovered in that kction, and judgment 
 is rendered against A alone, the bond 
 sufficiently identifies the action. Central 
 Mills Co. V. Stewart, 133 Mass. 461. 
 
 The trustee and not the beneficiary has 
 the right of action at law. A bond in 
 attachment must run to the sheriff who 
 holds it in trust, and the plaintiff in at- 
 tachment has no right to sue on it or 
 transfer it until failure of execution, and 
 then only in the sheriff's name, unless the 
 lalter has assigned the bond to him. 
 Forrest v. O'Donnell, 42 Mich. 556. 
 
 Upon a bond given under the Massa- 
 chusetts statute of 1877, c. 97, by a person 
 having an interest in money or credits 
 attached by trustee process to dissolve 
 such attachment, with condition to pay to 
 the plaintiff the sum for which the trustee 
 may be charged, if any, within thirty 
 days after final judgment, no action can 
 be maintained if the trustee has been dis- 
 charged in the trustee process. Porter v. 
 Giles, 129 Mass. 589. 
 
 Upon a bond given under the Massa- 
 chusetts statute of 1877, c. 97, by a person 
 having an interest in money or credits 
 attached by trustee process to dissolve 
 such attachment, with the condition to 
 pay to the plaintiff the sum for which 
 the trustee may be charged, if any, 
 within thirty days after final judgment, 
 no action can be maintained if the trustee 
 has been defaulted, and, although ad- 
 judged a trustee, has not been charged 
 for any sum. Cunningham v. Hogan, 
 136 Mass. 407. 
 
 The bond must fulfil the requirements 
 of the statute or it will not be valid as a 
 statutory bond. Wade on Attach. § 187, 
 and cases cited. 
 
 In proceedings under the statute to se- 
 
 cure a release of property from attach- 
 ment by means of a bond to the plaintiff, 
 a bond in favor of the plaintiff, specifi- 
 cally named as obligee, conditioned that 
 if " said plaintiff recover judgment in the 
 said action," etc., is a compliance with 
 the statute providing for a bond to the 
 plaintiff, conditioned that " if the plain- 
 tiff recovers judgment in the action," 
 etc. A plaintiff to whom such a bond 
 had been executed made an assignment, 
 pursuant to statute, for the benefit of 
 creditors. The assignee was substituted 
 as plaintiff in the action, and recovered 
 judgment. Held, that the obligors in the 
 bond became liable to the assignee 
 thereon. Slosson v. Ferguson, 31 Minn. 
 448. 
 
 When in an action against the princi- 
 pal and sureties in a note the property 
 of the principal is attached, and he exe- 
 cutes a cross-bond with sureties, as pro- 
 vided by sec. 406 Gantt's Digest, such 
 sureties are, as between them and the 
 sureties on the note, primarily liable to 
 the extent of the value of the property at- 
 tached, for the satisfaction of the debt. 
 Fletcher v. Menlsin, 37 Ark. 206. 
 
 Complaint in action on undertaking 
 given under Code Civ. Proc. § 540, that 
 alleges that "' a judgment was recovered, 
 entered, and docketed," is sufficient al- 
 though there were two defendants and 
 judgment was rendered against one only. 
 McCutcheon v. Weston, 65 Cal. 37. 
 
 An undertaking executed to the sher- 
 iff, and agreeing to satisfy any judgment 
 that plaintiff in a certain action might 
 recover, is not a "special promise to 
 answer for the debt, default, or miscar- 
 riage of another." Such an undertaking 
 is not void because the consideration not 
 is expressed therein. The release of prop- 
 erty from an attachment constitutes a 
 sufficient consideration for the undertak- 
 ing. Lightle V. Berning, 15 Nev. 389. 
 
 Release of Sureties. — A mere mistake 
 in the recital of a bond, executed to se- 
 cure the release of an attachment, whereby 
 the writ of attachment was stated to have 
 issued from the circuit court instead of the 
 district court, will not release the sure- 
 ties from liability on the bond. Ripley v. 
 Gear, 58 Iowa, 460. 
 
 Where, by the terms of an undertaking 
 to prevent the levy of an attachment, the 
 parties thereto undertook to pay, on de- 
 
 923 
 
Bonds to Dissolve. 
 
 ATTACHMENT. 
 
 Bail Bond. 
 
 time before judgment. This right is a privilege accorded by law 
 to, and not a duty enjoined upon, the defendant; and the plaintiff 
 cannot complain if it be not exercised.^ In taking this bond, the 
 ofiScer is not to be regarded as the plaintiff's agent, so as to render 
 thfe plaintiff responsible, for his neglect of duty.* If the statute 
 requires more than one surety, and only one is given, the obligors 
 when sued on the bond cannot object to its validity on that 
 account ; for the plurality of sureties is for the benefit of the 
 creditor, and he may dispense with more than one without inval-' 
 idating the instrument.^ If there be no statute authorizing it, 
 the court has no power to order new sureties to be given in such 
 a bond, on the ground that those first taken have become in- 
 solvent. The law is complied with by the giving of the bond, 
 without reference to the subsequent ability of the sureties to 
 respond to its obligation.* By the execution of the bond the 
 action loses the characteristics of a proceeding ?«yi?w2, and proceeds 
 to judgment as an section in personam.^ After the execution of the 
 bond the defendant cannot take exception to the attachment or to 
 the regularity of the proceedings under it.® The bbnd is available 
 
 mand, any judgment which the attaching 
 creditor might recover against the attach- 
 ment debtor, they are not, as between 
 themselves and the attaching creditor, 
 released from liability by reason of the 
 sheriff having attached property prior to 
 the giving of the undertaking and subse- 
 quently released it, nor because the judg- 
 ment in the attachnient suit was entered 
 by consent and execution stayed for sixty 
 days by stipulation of the parties. Pres- 
 ton V. Hood, 64 Cal. 405. 
 
 The defendant in attachment gave bond 
 as provided by § 2994 of the Code, and 
 the attached property was restored to 
 h«m. On the trial the judgment was for 
 the defendant for costs, the attachment 
 was dissolved, and the sureties on de- 
 fendant's bond were discharged. Plain- 
 tiff excepted to all parts of the judgment 
 except the order discharging the sureties, 
 and he appealed from the judgment gen- 
 erally. The order discharging the sure- 
 ties was in no way raised or considered 
 on the appeal, but the judgment other- 
 wise was reversed. Upon a new trial 
 plaintiff recovered judgment, and there- 
 upon moved for judgment against the 
 sureties on defendant's. bond, and judg- 
 ment was entered against them. Held, 
 that the judgment against the sureties 
 was erroneous, because the order dis- 
 charging them in the former trial was 
 within the jurisdiction of the court, and 
 was' not excepted to, and was a final 
 adjudication as to their liability. Espe- 
 cially in this case was the judgment in- 
 equitable, since the sureties, after the 
 order of discharge, had parted with the 
 
 security which the defendant had given 
 them as indemnity, and the defendant 
 himself was insolvent. Barton v. "Thom- 
 son, 66 Iowa, 526. 
 
 1. Drake on Attach. (6th Ed.) § 313; 
 Watson V. Kennedy, 8 La. Ann. 280. 
 
 2. Drake on Attach. (6th Ed.) § 314; 
 Cook V. Boyd, 16 B. Mon. (Ky.) 556. 
 
 3. Drake. § 316, Ward v. Whitney, 3, 
 Sanf. (N. Y.) 399; 4 Seld (N. Y.) 442. 
 
 4. Drake on Attach. (6th Ed ) | 316 a. 
 
 5. Drake on .A.ttach. (6th Ed.) § 15. 
 
 So held in Mississippi, Kentucky, Illi- 
 nois, South Carolina, Georgia, Pennsyl- 
 vania, Ohio, Arkansas, and 'Texas. Ins. 
 Co. V. Whitney, 70 Pa. St. 248; Myers v. 
 Smith, 29 Ohio St. 120: Hill v. Harding, 
 93 111. 77; Morrison v. Alphin. 23 Ark. 
 136; Shirley v. Byrnes, 34 Tex. 625; 
 Harper I/. Bell, 2 Bibb. (Ky.) 221; Phil- 
 lips V. Hines, 33 Miss. 163; Drake on 
 Attach. (6th Ed.)§ 317. 
 
 In Louisiana execution of bond renders, 
 the defendant liable to 'a judgment in 
 personam, whether he was served with 
 process or not. Love v. Voorhies, 15 
 La. Ann. 549. 
 
 6. Barry v. Foyles, I Pet. (U. S.) 311 ^ 
 Payne v. Snell, 3 Mo. 409. 
 
 And under the New York Code of Pro- 
 cedure. Cruyt V. Phillips, 16 How, 
 Pr. (N. Y.) 120; Dunn v. Crocker, 22 Ind. 
 
 324. 
 
 In Mississippi the execution of the 
 bond releases any technical objections to 
 the preliminary proceedings. Wharton 
 V. Conger, 9 Smedes & M. (Miss ) 510. 
 
 In South Carolina it is held that de- 
 fendant having given a bond did not 
 
 934 
 
Sonds to Dissolve. 
 
 ATTACHMENT. 
 
 Delivery Bonds. 
 
 to the plaintiff only for the satisfaction of such judgment as he may- 
 obtain against the defendant. Third parties claiming the attached 
 property can have no recourse upon the bond, there being no 
 privity between them and the obligors.^ 
 
 Delivery Bonds. — The delivery bond is usually conditioned for 
 the delivery of the property to the ofificer, either to satisfy the 
 execution which the plaintiff may obtain in the cause, or when and 
 where the court may direct. Sometimes the alternative is em- 
 braced of the delivery of the property or the, satisfaction of the 
 judgment recovered in the action.* It differs, too, from a bail- 
 bond in that it does not discharge the lien of the attachment, 
 since the very object of the bond is to insure the safe-keeping and 
 faithful return of the property: the continuance of the attachment 
 is required.^ By executing such bond the defendant is held to 
 have acknowledged notice of the suit, and to be bound to enter 
 an appearance or be liable to be proceeded against as in case of 
 personal service of process.* The surety may exonerate himself 
 from liability by delivering the property to the officer at any time 
 before judgment is rendered against him on the bond.*' The 
 •delivery must be actual — that is, the property must be brought, 
 
 thereby waive his right to have the at- fective in failing to allege such a demand. 
 
 tachments discharged as irregularly and 
 amprovidently granted. Bates v. Killian, 
 17 S. Car. 553. 
 
 1. Dorr V. Kershaw, 18 La. 57; Beal 
 V. Alexander, i Rob. (La ) 277; Drake 
 on Attach. (6th Ed.) § 322. 
 
 2. Such a bond is no part of the record 
 in the cause, and cannot be looked to to 
 ■explain or contradict the sheriff's return. 
 Kirksey tj. Bates, i Ala. 303. 
 
 When the bond calls for the delivery 
 of the property at a specified time no 
 ■demand is necessary. When the prop- 
 erty is to be delivered " when and where 
 the court shall direct," an order of court 
 is necessary to render the obligors liable. 
 Brotherton v. Thomson, 11 Mo. 94; Drake 
 on Attach. (6th Ed.) § 334. 
 
 The undertaking stipulated that in case 
 •of the recovery of a judgment by the 
 plaintiff in the attachment suit the de- 
 fendant should surrender the property on 
 demand to be applied in payment of the 
 judgment, or that in default thereof he 
 and his sureties would on demand pay to 
 the plaintiff the value of the property 
 not exceeding a specified sum. The only 
 ■demand alleged in the complaint was a 
 •demand on the principal for the amount 
 -of the payment, and for the re-delivery of 
 the property. Held, thaf in order to 
 maintain an action against the sureties 
 •on the undertaking, a demand upon them 
 ■and their principal for the payment of the 
 value of the property was also necessary, 
 -and that the complaint was fatally de- 
 
 Pierce V. Whiting, 63' Cal. 538. 
 
 If the bond be given where not author- 
 ized by statute, it will be good as a com- 
 mon-law bond where it does not contra- 
 vene public policy nor violate statute. 
 Barnes v. Webster, 16 Mo. 258; Wright 
 V. Keyes, 103 Pa. St. 567. Provided it 
 be executed by one thereto authorized by 
 law. Cummings v. Gray, 2 Stewart & 
 Porter (Ala.), 341; Sewall v. Franklin, 2 
 Porter (Ala.), 493 and 333. 
 
 No set form of words is necessary to 
 render it valid, and mere surplusage will 
 not vitiate it as a statutory bond. Yocum 
 V. Barnes, 8 B. Mon. (Ky.) 496; Purcell 
 V. Steel, 12 111. '93; Drake on Attach. 
 (6th Ed.) §§ 327-329- 
 
 A bond taken by a sheriff in consid- 
 eration of the release of attachment Is 
 not void for want of conformity to the 
 requirements of the statute, which while 
 prescribing one form does not prohibit 
 another. Smith v. Fargo. 57 Cal. 157. 
 
 3. Drake on Attach. (6th Ed.) § 331, 
 and cases cited. 
 
 Hence it cannot be seized under an- 
 other attachment, or under a junior exe- 
 cution either against the attachment 
 debtor or by a third person claiming it 
 adversely to the debtor and creditor. 
 
 4. Wilkinson v. Patterson, 6 How. 
 (Miss.) 193; Drake on Attach. (6th Ed.) 
 
 §333- 
 
 5. Hansford u. Perrin, 6 B. Mon. 
 (Ky.) 595; Drake on Attach. (6th Ed.) § 
 335- 
 
 925 
 
Bonds to Dissolve. 
 
 ATTACHMENT. 
 
 Simultaneous Levies. 
 
 pointed out, and offered to the officer.^ In an action on the 
 bond the obligors cannot complain that the penalty in it is not 
 as large as the law required, and they are estopped by the 
 bond from contesting the defendant's title to the property.** The 
 measure of recovery is the value of the property secured, not 
 exceeding the amount of the plaintiff's recovery in the attach- 
 ment suit. If the value be stated in the bond, it will be conclu- 
 sive on the obligors ; if not stated, it must be established by 
 proof.^ 
 
 10. Simultaneous, Successive, and Fraudulent Attachments. — Simul- 
 taneous levies are held to share equally;* and where the judg- 
 ments in two cases were for different amounts and the at- 
 tachment was by garnishment, they were nevertheless held 
 to take equal amounts of a sum insufficient to satisfy both 
 judgments in full.' In the absence of any statutory provision 
 authorizing subsequent attachment or general creditors to share 
 pro rata the proceeds of property held by a prior attachment, 
 priority in time creates a prior lien exclusively for the benefit 
 of the vigilant creditor.* Where several attachments are filed on 
 
 1. Pogue V. Joynes, 7 Ark. 462. 
 
 2. Jones u. R. Co., 5 How. (Miss.) 
 407; Drake on Attach. (6th Ed.) § 139; 
 Case V. Steele, 34 Kan. go; Pierce v. 
 Whiting, 63 Cal. 538. 
 
 3. Drake on Attach. (6th Ed.) § 342; 
 Weed u. Dills, 34 Mo. 483. 
 
 The judgment against sureties on a 
 forthcoming bond, provided for in sec. 
 406, Gantt's Digest, must be for the value 
 of the property as found by the court pr 
 jury trying the case, and not the value 
 fixed by the appraisers for taking the 
 bond. Fletcher v. Menken, 37 Ark. 206. 
 
 The condition of the undertaking given 
 under § 565, Code of Civil Procedure, to 
 release attached property, requires the 
 property to be re-deliifered, or its 
 value paid upon a judgment for the 
 plaintiff, and the terms of the un- 
 dertaking are not complied vrith by an 
 offer to return or by a return of a 
 portion of the property attached. In an 
 action for breach of such an undertaking, 
 in which it appeared that a portion of the 
 attached property was levied upon and 
 sold by the sheriff under an execution, 
 upon the judgment, held, that the meas- 
 ure of damages was the full value of the 
 property attached less the amount of the 
 proceeds of the sale. Metrovich v. Jovo- 
 vfch, 58 Cal. 341. 
 
 If one joint obligor in a delivery bond 
 be compelled to pay the whole amount 
 of the judgment recovered on the bond, 
 he may maintain an action against his 
 co-obligor for contribution. Labeaume 
 V. Sweeney, 17 Mo. 153; Chrisman c. 
 Jones, 34 Ark. 73. 
 
 Where a delivery -bond is given lor the 
 release of attached property, and there 
 is judgment against the attachment de- 
 fendant, and he appeals and gives a su- 
 persedeas bond with the same surety as 
 the delivery bond, the surety is liable on 
 both bonds, but his total liability cannot 
 exceed the amount for which his principal 
 is in default upon the judgment rendered 
 against him. Where a delivery bond is 
 given for the release of attached prop- 
 erty, it remains in full force until the 
 conditions thereof are performed, and is 
 not annulled by a supersedeas bond given 
 on an appeal taken from the judgment 
 rendered against the attachment de- 
 fendant. State V. McGlothin, 61 Iowa, 
 
 312. 
 
 H. 
 
 4. Thurston v. Huntingdon, 17 N. 
 438. 
 
 5. Davis V. Davis, 2 Cush. (Mass.) iii ; 
 Wade on Attach. § 222. 
 
 6. Drake on Attach. (6th Ed.) § 260. 
 In some States all attachment creditors 
 
 have liens of equal dignity, regardless of 
 the order in which they are levied, pro- 
 vided the action is commenced prior 10 
 judgment in those suits pending with 
 which the plaintiff seeks to prorate. 
 Lexington R. Co. v. Ford Plate Glass 
 Co., 84 Ind. 516. 
 
 Judgment creditors are not allowed to 
 prorate with attachment creditors. Baum 
 V. Gosline, 15 Fed. Rep. 220. 
 ' On the other hand, it is held that where 
 judgment is obtained at the same terms 
 in an ordinary action as in the attach- 
 ment suit, both executions are .equal as 
 to the inception of the liens. Pollack v. 
 
 926 
 
Simultaneous, Successive, and ATTACHMENT. Fraudulent Attachments. 
 
 the same day, in the absence of any showing to the contrary they 
 will be presumed to have been filed at the same time;* but if 
 priority of the fraction of a day is shown, those first in time will 
 take precedence of the others.* " The order of precedence is 
 governed by the validity of the levy. Subsequent valid levies 
 necessarily exclude those prior in point of time but wanting in 
 compliance with the law in essential particulars." ^ The invalidity 
 may arise from an improper levy, or from a failure to perfect the 
 lien acquired by the levy by duly prosecuting the suit to judgment 
 and execution.* If an officer suffer his possession of attached 
 property to be lost, it may be attached by anbther officer, though 
 the latter may be aware of the former attachment having been 
 made, provided he does not know that the prior attachment 
 subsists at the time of the levy. If, however, he has such 
 knowledge, the second attachment is fraudulent and void.^ After 
 he has made a levy, notice to him that a prior attachment exists 
 will not affect the validity of the levy.^ A discontinuance of the 
 suit upon which the prior levy is made is an abandonment of the 
 attachment lien and leaves the property subject to the lien of any 
 valid subsequent levy.*" And this result follows where the property 
 is turned over to the first attaching creditor absolutely, in satisfac- 
 tion of his demand, where the subsequent attachment lien has 
 been perfected by judgment. Nor is the officer discliarged from 
 liability by turning over the property to the first attaching creditor 
 in pursuance of the arrangement made with the debtor.* As each 
 attacher has a right to the surplus of the defendant's property 
 after satisfying prior attachments, any act of an attaching creditor 
 after the institution of the suit, altering his writ, or changing or 
 increasing the demand upon which he attached, is regarded as a 
 
 Slack, 92 III. 221 ; Hill v. Child, 3 Deve- attachers who perfected their lien by 
 
 reux (N. Car.), 265. judgment and execution he acquired no 
 
 In New Jersey all creditors may come title to the property. Brandon Iron Co. 
 
 in and share the benefit of an attachment, v. Gleason, 24 Vt. 228; Cole v. Wooster, 
 
 but one is not bound to file his claim 2 Conn. 203. 
 
 at the time he makes his application. When goods in the custody of the law 
 
 Hanness v. Smith. 21 N. J. L. 495. are to be levied upon, a return of the 
 
 In Pennsylvania all foreign attach- levy on the writ by the officer in charge 
 
 ments levied on the same day become of the goods is sufficient. Rogers v. 
 
 equal liens and share /ro rata. Yelverton Fairfield, 36 Vt. 641. 
 
 V. Burton, 26 Pa. St. 351. When they are in hands of bailee the 
 
 1. Steffens z'. Wanbocker, 17 S. Car. return should be made by the officer who 
 ij75. placed them in his custody, and notice 
 
 2. Ginsberg v. Pohl, 35 Md. 505; Tufts given him. Tomlinson v. Collins, 20 
 w. Carradin, 3 La. Ann. 430. Conn. 364; Drake on Attachm. (6th Ed.) 
 
 3. Wade on Attach. § 219; Robinson § 269. 
 
 V. Ensign, 6 Gray (Mass.), 300; Culver 5. Baglev v. White, 4 Pick. 395; 
 V. Rumsey, 6 111. App. 598. Young v. Walker, 12 N. H. 502; Morse 
 
 4. Drake on Attach. (6ih Ed.) § 262. v. Smith, 47 N. H. 474. 
 
 Thus where there were several succes- 6. Bruce v. Holden, 21 Pick. (Mass.) 
 
 Sive attachments, and the'first attacher, 187 ; Drake on Attachm. (6th Ed.) 
 
 having a claim large enough to absorb all § 271. 
 
 the property attached, by agreement with 7. Wade on Attachm. 8 218. 
 
 the defendant took all the property in suit, 8. Wade on Attachm. § 218; Brandon 
 
 it was held that as against subsequent Iron Co. v. Gleason, 24 Vt. 228. 
 
 937 
 
Simultaneous, Successive, and ATTACHMENT. Traudulent Attaohments. 
 
 fraud upon subsequent attachers and dissolves the attachment so 
 far as concerns them.* 
 
 While mere irregularities in the conduct of the suit cannot be 
 taken advantage 'of by subsequent attaching creditors,* unless 
 they amount to a substantial departure from the legal mode pre- 
 scribed for enabling a party to obtain the benefit of his attach- 
 ment, if the demand upon which the attachment is founded is 
 fraudulent, or if in fact there is actually no demand, the case is 
 different. Fraudulent attachments will also be overturned when 
 brought in conflict with the rights of third persons other than 
 attaching creditors.^ Claims of third parties to property attached 
 on mesne process may be brought to an issue without trying the 
 question of indebtedness between plaintiff and defendant by re- 
 plevin and the interplea, though the question is also raised by a 
 plea in abatement, motion to dissolve the attachment or quash 
 the writ.* 
 
 1. Drake on Attachm. (6th Ed.) § 282. 
 " But where a declaration contains the 
 
 money counts, how is it to be determined 
 what demands were put in suit and what 
 were afterwards introduced? The rule 
 seems to be that those which the plaintiff 
 owned when the suit was brought, and 
 which were due and payable, and liable 
 to be introduced without amendments, 
 and which were so introduced, and judg- 
 ment obtained upon them cannot, in the 
 absence of contradictory proof, be re- 
 garded as not in suit; for instance, none 
 of the cases decide that an attachment 
 would be dissolved by proving a promis- 
 sory note under a money count originally 
 contained in the declaration." Drake on 
 Aitachments (6th Ed.), § 286; Fairbanks 
 ■V. Stanley. 18 Me. 296. 
 
 Referring the action and all demands 
 between plaintiff and defendant to arbi- 
 tration will dissolve the attachment, 
 unless it be shown that the reference 
 covered, only the demands sued on, 
 Drake on Attachm. (6th Ed.) § 288. 
 
 In Massachusetts it was held that if it 
 be shown that no new demand was ad- 
 mitted by the referees, the attachment 
 will not be dissolved. Seeley v. Brown, 
 14 Pick. (Mass.) 177. 
 
 2. Kincaird v. Neal, 3 McCord (S.Car.), 
 201; Camberford w. Hall, 3 McCord (S. 
 Car.), 345; McBride v. Floyd, 2 Bailey (S. 
 Car.), 209; Van Arsdale v. Krum, 9 Mo. 
 397; Walker v. Roberts, 4 Richardson, 
 
 561; Ball V. Claflin, 5 Pick. (Mass.) 303; 
 /» r; Griswold, 13 Barb. (N. Y.)4I2; Sei- 
 bert V. Switzer, 35 Ohio St. 661; Freiden- 
 berg V. Pierson, 78 Cal. 152; Jacobs v. 
 Hogan, 22 N. Y. S. C. 197. 
 
 But when the defendant is not served 
 with process and the officer falls to make 
 
 return of the attachment in the manner 
 provided by law (Stone v. Miller, 62 
 Barb. (N. Y.) 430), or when the defendant 
 makes a confession of judgment anterior 
 to the time the action is triable (Hall v. 
 Walbridge, 2 Aikens (Vt.), 215), or where 
 there is an appearance and trial resulting 
 in a judgment for the plaintiff before the 
 return day of the writ (Murray v. Eldridge, 
 2 Vt. 388), the irregularity amounts to a 
 departure from the mode provided bylaw 
 for a party to obtain the benefit of the 
 remedy, and the attachment is dissolved 
 as against sutisequent attachers. 
 
 "The principle upon which subse- 
 quent attaching creditors may except to 
 prior attachments upon the same prop- 
 erty and seek to have them dissolved is 
 the same that enables a mortgagee to at- 
 tack prior liens by attachment upon the 
 property embraced in his mortgage." 
 Wade, § 220; Peters v. Conway, 4 Bush. 
 566. 
 
 Subsequeftt attaching creditors may 
 have prior liens vacated. Woodmansee 
 V. Rogers, 20 Hun (N. Y.), 285. 
 
 3. Drake on Attach. (6th Ed.) § 289. 
 
 4. Wade on Attach. § 226. 
 
 The rules of procedure by which the 
 claimant may assert his right to property 
 seized on mesne process in an action 
 against another are not uniform in the 
 different States throughout the Union. 
 
 Under the New York Code, § 682, any 
 one who acquires an interest in the prop- 
 erty or a lien thereon, subsequent to the 
 attachment, may appear to contest the 
 validity of the attachment. Nat. S. & L. 
 Bank. v. Mechanics' Nat. Bank, 89 N.Y. 
 440. See also Bamberger v. Halberg, 78 
 Ky. 376. 
 
 The privilege may be taken advantage 
 
 928 
 
Liability of Officer. 
 
 ATTACHMENT. 
 
 Liabil.ty of Officer. 
 
 il. Liability of Officer. — The officer may render himself and his 
 sureties liable to plaintiff (i) by failure or refusal to levy the writ;i (2) 
 by failure to carefully keep the property until final process ;i (3) by 
 failure to execute the final writ by a sale ;^ (4) by failure to account 
 for the proceeds of the sale.i To the defendant he may become lia- 
 ble by (i) persistently levying upon property exempt;'-* (2) by seizure 
 under a writ which is void on its face ;* (3) by refusal to release 
 property seized, upon tender of a good bail and delivery-bond as 
 prescribed by law ;* (4) by a false return;^ (5) by a failure of duty as 
 custodian ;^ (6) abuse of process by levying by unlawful means ;^ 
 (7) failure to return the property to defendant on dismissal of the 
 attachment.^ Furthermore, he may become liable to third parties 
 by making the levy upon their property,* and may become liable 
 
 of by any one claiming an interest regard- 
 less of whether the interest be legal or 
 equitable, or acquired before or after the 
 attachment. Printing Co. v. Hart, 85 
 N. Y. 500. See also Bank v. Keeler, 103 
 111. 425- 
 
 In West Virginia any one interested 
 may appear and move to quash the at- 
 tachment, traverse the affidavit, or go to 
 trial on the issue presented. Copeland 
 V. Davery, 10 W. Va. 130. 
 
 In South Carolina none but a party to 
 llie proceedings can move to set the at- 
 tachment aside. 
 
 The rule of exclusion embraces an as- 
 signee by a deed of assignment, he not 
 being a party to the action. Copeland 
 V. Piedmont Ins. Co., 17 S. Car. 116. 
 
 1. Wade on Attach. § 227. 
 
 Where order of sale is regularly is- 
 sued by \ justice in attachment proceed- 
 ing, the officer is bound to sell, though 
 title to the property is disputed, and the 
 plaintiff does not give indemnity bond. 
 The order of the court having custody of 
 the property is complete protection to 
 him in making the sale. If attachment 
 proceedings are irregular, but not void, 
 the sheriff snust execute the order of sale. 
 In an action on sheriff's bond for failure 
 to execute and return order of sale issued 
 by a justice of the peace in attachment 
 proceedings, the officer returned the 
 order indorsed, "I went on to sell the 
 corn, and it was disputed, and I would 
 not sell without a bond." Held, the offi- 
 cer could not require indemnity bond in 
 such case, and he was liable. State u. 
 Manly, 11 Lea (Tenn.), 636. 
 
 2. An adjudication by a justice, dis- 
 charging property from an attachment 
 upon the ground that it is exempt, is final 
 and conclusive unless suspended or re- 
 versed according to law. A writ of error 
 to remove such proceeding, where no 
 
 supersedeas bond is given, will not oper- 
 ate to continue the lien of the attachment. 
 Pellersells v. Allen, 56 Iowa, 717. 
 
 3. As a rule, if the writ be regular on 
 its face, the officer need not concern him- 
 self as to the regularity of preliminary 
 proceedings. But where an officer, under 
 a writ of attachment against A, levied 
 upon goods in the possession of B. in an 
 action by B against the officer to recover 
 the value of the property, the officer at- 
 tempted to justify the taking, on the 
 ground that the plaintiff's title was de- 
 rived from the defendant in the writ, by 
 a transfer which was fraudulent and void 
 as to creditors. It was held that it was in- 
 cumbent upon the officer to prove, not 
 only the writ and the indebtedness of the 
 plaintiff's vendor to the person in whose 
 favor the writ was issued, but the prelim- 
 inary proceedings authorizing the issuing 
 of it. Howard v. Mansfield, 31 Minn. 
 337- 
 
 4. When a sheriff on receipt of a forth- 
 coming bond has surrendered possession 
 of attached property, he is not bound to 
 secure the attachment debtor from in- 
 terference with his possession by third 
 parties. Rhead o. Hounson, 46 Mich. 
 249. 
 
 5. Wade on Attach, (ist Ed.) § 227. 
 
 6. Where an officer levies an attach- 
 ment upon the goods of a person not the 
 defendant, in good faith, believing the 
 property to belong to the defendant in 
 attachment, he is not liable in exemplary, 
 but in actual damages only. Heiden- 
 heimer v. Lides, 2 Southwest. Rep. 87. 
 
 An officer about to levy an attach- 
 ment upon personal property is bound 
 by actual notice of a prior mortgage 
 upon such property, whether he receives 
 such notice before or after the writ is 
 placed in his hands. Stewart v. Smith, 
 60 Iowa, 275. 
 
 I C. of L.— 60 
 
 939 
 
liability of Ofa.cer. 
 
 A TTACHMENT. Property and Eights Affected. 
 
 to any one injured by failure to make return of writ.* The ofificer 
 is entitled to his necessary expenses.? 
 
 12. Property and Rights Affected. — The attachment creates a 
 lien upon all the property of the defendant, real or personal, 
 witfhin the territorial jurisdiction of the court, not exempt by 
 law, or so much thereof as is sufficient to satisfy the debt and 
 costs.* The lien is binding upon the interests of the heirs or per- 
 sonal representatives of the debtor in the property attached,* un- 
 less the action be one which abates on the death of the defendant.^ 
 It takes precedence of the rights of subsequent purchasers at a 
 voluntary or involuntary sale, or of the lien created by statute in 
 favor of judgment and execution creditors, in all cases where the 
 judgment is rendered or the execution issued subsequent to the 
 attachment.* It takes effect only upon such interest as the 
 debtor has in the property at the time of the levy,'' it does not 
 per se affect the title at all,* and extends only to the amount due 
 at the time the writ is issued, with judgment and costs." Judg- 
 ment in favor of defendant terminates the lien. If plaintiff appeal, 
 it may be perpetuated until judgment is rendered in the court of 
 last resort.*** The priority of an attachment as between attach- 
 ment creditors, or an attaching creditor, and a judgment creditor 
 is determined by the levy of the writ.** The right of attachment 
 creditor to attack prior fraudulent conveyances and assignments 
 
 1. An officer who fails to complete an 
 attachment of property by returning the 
 writ upon which the attachment i§ made 
 cannot, after judgment against him, in 
 an action by the owner of the attached 
 property, maintain an action against the 
 obligors in a bond, given to the officer 
 by the attaching creditor, to indemnify 
 the officer against ■liability by reason of 
 the attachment. Wiggins v. Atkins, 136 
 Mass. 292. / 
 
 2. Sheriff levied upon gopds under at- 
 tachments and kept the same. Mort- 
 gagees sued for recovery, and by consent 
 property was sold and proceeds put at 
 interest, and afterwards the mortgage 
 was sustained as prior lien. Held, that 
 sheriff was entitled to all expenses since 
 institution of this suit, but not for dis- 
 bursements under the attachments. Ex 
 parte Ferguson, 22 S. Car. 591. 
 
 3. Wade on Attach. § 25. 
 Expenses, of taking care of goods under 
 
 attachment are not, it seems, a lien on 
 the property after the goods have been 
 released by a supersedeas bond and the 
 case is ended; and it is doubtful if such 
 expenses are taxable as costs. Savings 
 Bank V. Ottawa C. Judge, 54 Mich. 305. 
 
 4. Frelson v. Green, 19 Ark. 376 ; 
 Grosvenor v. Golo, 9 Mass. 209. 
 
 5. Crocker v, Radcliffe, 3 Brev. (S.Car) 
 23- 
 
 930 
 
 6. Shacklett v. Glyde's App.,'14. Pa. 
 St. 326; Moore v. Holt, 10 Gratt. (Va.) 
 284; Reeves v. Johnson, 12 N. J. L. 29. 
 
 7. It cuts off all subsequently acquired 
 rights. Where the debtor marries subse- 
 quently to the levy upon real estate it is 
 held that in case the husband dies before 
 judgment the attachment takes preced- 
 ence of the widow's claim of dower. 
 Brown v. Williams, 31 Me. 403. 
 
 8. It merely places it in a position to 
 be subjected to the plaintiff's judgment, 
 provided he obtain one in preference to 
 any other demand. Snell v. Allen, I 
 Swan. 208; Warner v. Everett, 7 B. Mon. 
 (Ky.)262. 
 
 The owner still holds the title and may 
 transfer it subject to the lien, and the of- 
 ficer may be the purchaser. Ariiold w. 
 Brown, 24 Pick. (Mass.) 89. 
 
 9. A subsequently maturing demand, 
 even though it be an instalment of the 
 same debt, and evidenced by the same 
 instrument of writing, for which the 
 plaintiff may obtain judgment, will not 
 extend the lien beyond the amount origi- 
 nally sued for. Syracuse Bank v. Col- 
 ville, 19 How. Pr. (N. Y.) 385; Zeizen. 
 hager v. Doe, i Ind. 296. 
 
 10. Harrison v. Trader, 29 Ark. ; Suyr 
 dam V. Haggeford, 23 Pick. (Mass.) 4651 
 
 11. Wade, § 32. The first attachment 
 creditor may enjoin a creditor under a 
 
Property and Eights Affected. A TTACHMENT. Dissolution, 
 
 is undoubted. 1 It is a necessary deduction from the doctrine that 
 the levy of an attachment does not affect the title, that in order 
 for the attachment to have the effect of satisfying the debt it must 
 be shown that the property levied upon was so applied.* Mere 
 stay of execution after levy of attachment, whether such stay be 
 granted under existing laws or be awarded by subsequent act of 
 legislation, does not destroy the force of the lien.* The legisla- 
 ture cannot withdraw the property when over attached from exe- 
 cution, but it may limit the duration of the lien.*, 
 
 When the receiptor claims the property as his own, he may, 
 notwithstanding the admissions of the receipt to the contrary, as- 
 sert his title in defence of an action by the officer for possession 
 of the property after judgment.^ 
 
 13. Dissolution. — There are two general grounds of dissolution 
 and two distinct methods of procedure ; one is by traverse of the 
 facts alleged in the affidavit as grounds of attachment, and the 
 other by motion to quash or dissolve because of irregularities in 
 procedure. These are generally apparent on the face of the 
 papers, and include the insufficiency of the facts stated and all- 
 other matters going to the jurisdiction.^ Where the attachment: 
 is dissolved on account of irregularities on the face of the papers,. 
 the objections may be purely technical ; but where the attachment; 
 is met by a denial of the truth of the allegations in plaintiff's affi- 
 davit, an issue is tendered on the merits of the attachment ; and if 
 the alleged grounds upon which the attachment proceedings are 
 based are found untrue, the property seized is -released from the 
 lien irrespective of the question of indebtedness.* 
 
 subsequent attachment but prior judg" 3. Hannahs v. Felt, 15 Iowa, 141; 
 
 ment. Moore v. Holt, 10 Gratt. (Va.)284. Einsworth v. King. 5 Mo. 477. 
 
 1. "The most obvious method of reach- 4. Wade on Attach. § 35. 
 
 ing the fraud would seem to be to levy 6. Adams v. Fox, 17 Vt. 361; Barron' 
 
 upon the property as that of the debtor, v. Cobleigh, 11 N. H. 557; Webster v. 
 
 If the fraudulent transfer of interest has Harper, 7 N. H. 594; Lathrop v. Cook,, 
 
 been accompanied by a chang of posses- 14 Me. 414; Wade on Attach. § 209. 
 
 sion, colorable or real, the party in posses- But in Alabama it has been held that 
 
 sion may be garnisheed, and if his an- the holder of a mortgage lien on peison- 
 
 swer is adverse to the claim of the plain- alty may lose his' security by becoming' 
 
 tiff issue may be taken thereon and such bailee for l,he oiBcer after seizure under 
 
 question may be determined in the trial the writ. Read v. Sprague, 34 Ala. loi. 
 
 of that issue, except in States vfjiere law 6. In some of the Stales the issues are: 
 
 and equity are administered in separate raised by plea in abatement. Blum v. 
 
 tribunals. Where the statute provides Massey, 3 Stew. (Ala.) 226. 
 
 no means for attaching real estate except In others by a plea in the nature of a 
 
 where it is recorded in the name of the plea in abatement. R. S. Mo. (1845)' 
 
 defendant, a, bill in the nature of a cred- pp. 139, 140. 
 
 itor's bill for discovery and relief is the In New York by a j»/?rjifa!'raj, and else- 
 proper course." Wade on Attach. § 33. where by motion, petition, or traverse. 
 
 3. Maxwell v. Stewart, 22 Wall. 77. An application to vacate an attach- 
 Where money attached in the hands of a ment, when made to the court at special 
 bank is lost through the failure of the term, need ndt be made before the judge: 
 bank, the loss is the defendant's. Mc- who granted the writ. Rupperi v Haug, 
 Bride v. Farmers' Bank of Salem, 28 87 N. Y. 141. 
 
 Barb. (N. Y.) 476; Wade on Attach. 7. Shulenberg v. Farwell, 84 111. 400;. 
 
 § 34. Ramscher v. McElhenny,ii Mo.App. 434.. 
 
 931 
 
Dissolution, 
 
 ATTACHMENT. 
 
 DisBolation. 
 
 The defendant is the proper party to interfere by a plea in 
 abatement. 1 The burden of proof rests on the plaintiff,'-* and the 
 judgment is final on that branch of the case which involves the 
 validity of the attachment.^ 
 
 An attachment may be dissolved without traversing the affidavit 
 — (i) for irregularities apparent on the face of the proceedings'; 
 (2) for irregularities to be shown on the motion to dissolve.* 
 
 Unless some statute authorizes the appearance of others than 
 parties, a -motion to set aside an attachment for irregularity 
 should be made by the defendant ; and when made by a third per- 
 son, will not be entertained.^ Whether the affidavit be sufficient 
 or not is a matter which will appear upon the face of the papers ; 
 objections upon this ground are generally raised by motion. 
 The motion will be treated substantially as a demurrer to plead- 
 ing, and the court will not go behind the face of the paper itself 
 unless the objection embraces some feature connected with the 
 execution or filing of the affidavit which is not apparent on the 
 face.* Defects and insufficiency in the bond are more gene- 
 rally amendable than in the affidavit ; dissolution of the attach- 
 ment by reason of such defects is only decreed as a penalty 
 for not giving sufficient security within the time fixed by the 
 court.'' When it is necessary to insert in the writ matters con- 
 
 1. Wade on Attach. § 278; McCabe %!. 
 Parker, 78 Ala. 573. 
 
 In New York a judgment creditor, and 
 in West Virginia any one interested may 
 interpose. Bank v. Alberger, 55 How. 
 Pr. (N. Y.)48i; Capehart v. Doulny, 10 
 W. Va. 130. 
 
 3. Wade on Attach. § 281. 
 
 When the facts set up in the affidavit 
 for an attachment are denied upon a 
 motion to dissolve it, the plaintiff in 
 attachment has the burden of protecting 
 his lien by proofs outside of the affidavit. 
 Genesee Sav. Bank v. Mich. Barge Co., 
 52 Mich. 164. 
 
 3. Wade on Attach. § 282; Sublett 
 V. Wood, 76 Va. 318; Hawkins v. Al- 
 bright, 70 111. 87; Hilton V. Ross, 9 Neb. 
 406. 
 
 While the court cannot inquire into 
 the validity or justice of the caust of 
 action upon the hearing of a. motion to' 
 dissolve and vacate an order, of attach- 
 ment, yet it may inquire into the alleged 
 existence of the grounds of attachment 
 set forth in the affidavit; and if such in- 
 quiry incidentally refers to some of the 
 allegations of the petition, this does not 
 compel the court to refuse consideration 
 of the motion or suspend the decision 
 until the final trial of the cause. A dis- 
 solution of the attachment does not de- 
 feat the action. Bundrem v. Denn, 25 
 Kans. 430. 
 
 A defendant to the action may take the 
 
 proper steps to vacate an attachment is- 
 sued against him upon allegations of a 
 fraudulent transfer of his property, al- 
 though not the owner of such property 
 at the time the attachment was levied 
 thereon. Claussen v. Esterling, 19 S. 
 Car. 509. 
 
 4. Wade on Attach. § 284. 
 
 In New York the question of the suffi- 
 ciency of the affidavit is raised by special 
 motion; in Texas and Alabama, by a plea 
 in abatement; in South Carolina, by a 
 motion to quash the writ. Wade on At- 
 tach. § 285. 
 
 5. Wade on Attach. § 286; Copeland 
 V. Piedmont Ins. Co., 17 S. Car. 116; 
 May V. Courtnay, 47 Ala. 185. 
 
 But it has been held that one appear- 
 ing as amicus curiiE may move to quash. 
 Bank v. Andrews, 8 Port. (Ala.) 404. 
 
 The ground on which a junior attach- 
 ing creditor may procure the vacation of 
 a senior attachment is that it operates a 
 fraud on him. Henderson v. Thornton, 
 37 Miss. 448. 
 
 He cannot take advantage of mere 
 irregularities in the prior attachment, 
 though constituting good , grounds for 
 objection by the defendant, who may 
 waive anything which is no injustice to 
 other creditors. Jones v. Moody, 59 
 Miss. 327; Ward w. Howard, 12 Ohio 
 St. 158. 
 
 6. Wade on Attach. § 287. 
 
 7. Wade on Attach. § 288; Gapen v. 
 
 933 
 
Dissolation, 
 
 ATTACHMENT. 
 
 Dissolution, 
 
 tained in the affidavit, it is important that there should be no 
 material variance.^ The writ must follow the affidavit with rea- 
 sonable promptness.** As the filing of the bond and affidavit au- 
 thorize the writ, their destruction by fire or other means before 
 the writ is returnable does not work a dissolution of the attach- 
 ment.* The attachment may be dissolved on demurrer sustained 
 to the declaration, by reason of the omission of certain jurisdic- 
 tional allegations. If the complaint is defective merely, and can 
 be made good by amendment, the plaintiff should be allowed to 
 amend before the discussion of the motion to dissolve ; but if the 
 complaint is incurable, the attachment must be dissolved.* Inas- 
 much as the condition upon which the attachment is granted is 
 that the plaintiff shall obtain judgment against the defendant, it 
 necessarily follows that the attachment is dissolved by the death 
 
 Stevenson, i8 Kan. 140; Beardslee v. 
 Morgan, 29 Mo. 471; McCook v. Willis, 
 28 La. Ann. 44S. 
 
 1. Thus, where the firm name of a 
 partnership appeared in the affidavit, and 
 the names of the individuals in the writ, 
 and neither paper furnished any explana- 
 tion as to who composed the firm, the 
 variance was held to be fatal. Bennett 
 V. Zabriskie, 2 N. Mex. 7. 
 
 2. Wade on Attach. 2S9. 
 
 Eleven days has been held unreason- 
 ably long. Forster v. lUinski, 3 111. App. 
 345- 
 
 3. Wheeler v. Slavens, 13 Sm. & M. 
 (Miss.) 623. ^ 
 
 4. Wade on Attach. §§ 289, 295; 
 Third Nat. Bank v. Teal, 4 Hughes 
 C. C. 572; Hathaway v. Davis, 33 Cal. 
 161. 
 
 The effect of the amendment upon in- 
 tervenors remains to be considered, and 
 upon this question a fair result of all the 
 authorities is, that an amendment chang- 
 ing the form of the action merely, or sub- 
 stituting or adding a new count for the 
 same, will not dissolve an attachment. 
 Laighton v. Lord, 29 N. H. 257; Austin 
 V. Town of Burlington, 34 Vt. 512; Hill 
 V. Smith. 34 Vt. 541; Wright?/. Brownell, 
 3Vt. 440; Ball V. Claflin, 5 Pick. (Mass.) 
 304; Wood V. Denny, 7 Gray (Mass.), 541; 
 Seeley v. Brown, 14 Pick. (Mass.) 177; 
 Page V. Jewett, 46 N. H. 443; Miller v. 
 Clark, 8 Pick. (Mass.) 413; Mendes v. 
 Freiters, 16 Nev. 388. 
 
 An attachment to enforce a lien for 
 wages, is lost by an amendment chang- 
 ing (he Christian name of the plaintiff 
 from "Edward ■' to "Edmund." Flood 
 V. Randall, 72 Me. 439. 
 
 The amendment of a writ against 
 "William Robinson," by Inserting the 
 
 words " otherwise called William J. Rob- 
 inson,'' does not vacate an attachment of 
 personal property so as to give a mort- 
 gage of the property to a third person, 
 made after the attachment and before the 
 amendment, priority over the attachment, 
 of- which the mortgagee was ignorant. 
 Diettrich v. Wolffsohn, 136 Mass. 335. 
 
 Where an action of attachment is 
 brought in the name of a firm, and in the 
 papers as originally filed the name of one 
 of the partners is omitted, which omis- 
 sion is subsequently cured by amend- 
 ment, the omission is not sucii a defect 
 as vitiates the levy or can be taken ad- 
 vantage of by subsequent attaching cred- 
 itors, or postpones the lien of the levy 
 to that of such creditors. Henderson v. 
 Stetter, 31 Kan. 56. See Stout v. Folger, 
 34 la. 71 ; Ward v. Howard, 12 Ohio St. 
 158. 
 
 An attachment was issued against the 
 property of a non-resident to recover 
 freight claimed to be due the plaintiffs, as 
 owners of a steamship. The defendant 
 gave bond with sureties, as required by 
 the Code, and the attachment was dis- 
 solved. At the trial of the short note 
 case, on motion of the plaintiffs and 
 against the objection of the defendant, 
 sixteen other persons, part owners of the 
 steamer, were made co-plaintiffs, and 
 upon issues joined in the case as thus 
 amended, judgment was recovered against 
 the defendant. In an action on the bond 
 to recover the amount of this judgment, 
 it was held, that the amendment which 
 made new parties plaintiffs, and changed 
 the nature and character of the claim it- 
 self, thus depriving the defendant of the 
 benefit of defences which he otherwise 
 might have taken, released the sureties 
 on the bond. Furness v. Read, 63 Md. I. 
 
 983 
 
dissolution. ATTACHMENT. Notice by Publication. 
 
 of the defendant, 1 but not by his bankruptcy.'-* If, when an attach- 
 ment has been obtained against the defendant on the ground of 
 non-residence, it be shown that he is within the jurisdiction of the 
 court and can be served with process, the attachment is forthwith 
 dissolved.'* When a motion to dissolve is in contemplation, it is 
 essential that notice be given the plaintiff. The notice must not 
 only state the time such motion is to be made, but also the par- 
 ticular grounds upon which a dissolution is asked.* 
 
 By dissolution the lien of an attachment is at an end, and 
 the defendant has a right to have the property restored to him 
 free of the expense of care during custody.' But in case the title 
 has been transferred, the officer is not liable to the purchaser for 
 failure to return the property unless he has been notified of the 
 transfer." Dissolution does not affect the action, when the demand 
 is due, and there has been a personal service or general appear- 
 ance on part of defendant. In such case the action proceeds as 
 though begun by summons.' 
 
 14. Notice by Publication. — The subject presents itself in a two- 
 fold aspect: (i) As to the sufficiency of the notice as the founda- 
 tion of further proceedings in the cause ; (2) As to th^ effect of 
 failing to publish notice, or of publishing insufficient or invalid 
 notice, upon the validity of the subsequent proceedings in the 
 suit, when afterwards called in question inter alios. 
 
 The sufficiency of the notice to authorize judgment against the 
 defendant depends upon its conformity to the statute, both in 
 its terms and in the manner of its publication.* When, therefore, 
 
 1. Wade on Attach. § 291. 2. Wade on Attach. § 291. 
 
 In Tennessee it is held that under the 3. Leonard v. Stout, 36 N. J. L. 370. 
 
 statutes of that State an attachment once 4. Wade on Attach. § 292; Freeborn t*. 
 
 levied does not abate by the death of the Glazier, ip Cal. 337; Bank v. Alberger, 
 
 defendant. Boyd v. Roberts, 10 Heisk. 83 N. Y. 274. 
 
 (Tenn.)474. See Lord j/. Allen, 34 Iowa, 5. Murphy f. Crew, 38 Ga. 139; O'Con- 
 
 281; Thacher v. Bancroft, 15 Abb. Pr. nor v. Blake, 29 Cal. 312; McReady «». 
 
 243; Kennedy?/. Raguet, i Bay (S. Car,), Rogers, i Neb. 124; Jackman v. Ander- 
 
 484; More V. Thayer, 10 Barb. (N.Y.) 258; son, 33 Ark. 414. 
 
 Holman v. Fisher, 49 Miss. 472; White 6. State v. Fitzpatrick, 64 Mo. 185. 
 
 ■V. Heavner, 7 W. Va. 324. Contra, 7. Bundrem v. Denn, 25 Kan. 435; 
 
 Kenrick v Huff, 71 Mo, 570; Loubat v. Hills v. Moore, 40 Mich. 210. 
 
 Kipp, 9 Fla. 60; Collins v. Duffy, 7 La. 8. Drake on Attach. (6th Ed.) §§ 438, 
 
 Ann. 39; Green v. Shaver, 3 Humph, 439, 
 
 (Tenn.) 139; Crocker v. Radcliffe, 3 As to the terms, there should be a 
 
 Brev, (S. Car.) 23; Redlow v. Cressey, substantial if not a strict compliance. 
 
 ■65 Me. 128; Hensley !<, Morgan, 47 Cal, When the advertisement was required to 
 
 522; Dwyer v. Benedict, 12 R. I. 459. state " the names of the parties, the day, 
 
 The death of the defendant after final month, and year when and from what 
 
 judgment does not affect the attachment court, and for what sum the writ issued," 
 
 except as it offsets judgment liens. and it omitted to state the day, month, 
 
 In Pennsylvania it was held that in for- and year when the writ issued, it was 
 eign attachment the plaintiff was required held insufficient. Ford v. Wilson, Tap- 
 to give bond for the benefit of defendant's pan (Ohio), 235. 
 
 personal representatives, to repay, in In Ohio no description of the attached 
 
 case they came within a year and a day, property is necessary. Core v. Oil Co., 
 
 and disproved the debt. Fitch v. Ross, 40 Ohio St. 636. 
 
 4 S. & R, (Pa.) 557. See Bowman -v. A request on the part of a defendant. 
 
 Stark, 6 N. H. 459. against whom an attachment has been is- 
 
 934 
 
JTotice by Fublioation. 
 
 ATTACHMENT. 
 
 Notice by Publication. 
 
 the legislature fix the term of a court for a time anterior to that 
 at which it was previously established, and the full time required 
 by the governing statute for publication of notice is thereby 
 abridged, no proceedings in the attachment suit, depending for 
 their validity upon the correct publication of notice can be taken. ^ 
 All defects in the notice, or in its publication, are waived by the 
 defendant's appearance and traverse of the allegations of the affi- 
 davit.'-* 
 
 Whether in the event of insufficient publication or none at all 
 the judgment rendered in the proceedings against the defendant 
 can be impeached collaterally, on the ground that publication is 
 essential to jurisdiction, and in its absence all the proceedings are 
 coram nonjudice, is a question about which there is a great con- 
 trariety of opinion. The more general opinion would appear to 
 be that the proceedings of the court are not so invalidated thereby 
 as to make a sale under them void.^ 
 
 sued, to suspend legal proceedings, does 
 not excuse a failure to serve the summons 
 or lo commence publication within the 
 time prescribed by the Code of Civil 
 Procedure (§ 638), and does not operate 
 as an estoppel, precluding the defendant 
 from setting up want of publication or 
 service. Mojarrietta v. Saenz, 80 N. Y. 
 
 547- 
 
 A plaintiff after having obtained one 
 attachment and order of publication, 
 may abandon them and take out a new 
 attachment and order, provided this is 
 not done for the purpose of vexation. 
 Mojarrieta v. Saenz, 80 N. Y. 547. 
 
 If at the time of the institution of a suit 
 by attachment the law require an order 
 of publication to be made by the court, a 
 subsequent statute requiring it to be 
 made by the sheriff, but having in it no 
 words indicating an intention in the legis- 
 lature to give it a retroactive effect, will 
 not invalidate an order made by the 
 court. Parsons v. Paine, 26 Ark. 124. 
 
 Where publication was required to be 
 made for two months it was held not 
 sufficient to publish it for eight weeks. 
 Hunt V. Wickliffe, 2 Pet. (U. S.) 201. 
 
 A writ of attachment may issue and be 
 served in an action against anon-resident 
 or absconding defendant before' the pub- 
 lication of the summons;, but unless the 
 proper publication is thereafter made the 
 attachment proceedings will be void. A 
 delay of a year or more in making such 
 publication is a sufficient ground for 
 setting aside the attachment. Cummings 
 V. Tabor, 61 Wis. 185. 
 
 The transcript stated that the constable 
 returned the writ of attachment as follows : 
 " March 29, 1879. Return, etc." "Where- 
 upon I appointed Friday, the i8th of 
 
 April, 1879, to hear and determine the 
 cause." Held, that it sufficiently appeared 
 that the justice, upon the return of the 
 attachment, appointed a day for the 
 hearing of the cause. The justice certi- 
 fied in the transcript that on the day of 
 trial " it appeared in evidence that notices 
 had been posted according to law." 
 Held, it sufficiently appeared that the 
 plaintiff had proved to the satisfaction of 
 the justice that he had advertised the at- 
 tachment in the manner prescribed by 
 the statute. Wright v. Moran, 43 N. J. L. 
 
 49- 
 
 An order for an attachment may be 
 general, and need not contain all the re- 
 citals prescribed for the notice by publi- 
 cation. Howard v. Jenkins, 5 Lea 
 (Tenn.), 176. 
 
 1. Safiaracus v. Bennett, 6 Howard 
 (Miss.) 277; Colwell v. Bank of Steuben- 
 ville, 2 Ohio, 229. 
 
 2. Williams v. Stewart, 3 Wis. 773. 
 
 3. Zeizenhagen v. Doe, i Ind. 296; 
 Paine v. Moreland, 15 Ohio, 435. See 
 Field V. Dortch, 34 Ark. 399; Beech v. 
 Abbott, 6 Vt. 586; Matter of Clark, 3 
 Denio, 167; Hardin v. Lee, 51 Mo. 241; 
 Johnson v. Gage, 57 Mo. 160; Gregg i'. 
 Thompson, 17 Iowa. 107; Cooper v. 
 Reynolds, 10 Wall. (U. S.) 308. Contra, 
 Clark V. Bryan, 16 Md. 171; Haywood 
 V. Collins, 60 111. 322; Wescott v. Archer, 
 12 Neb. 345; Millar v. Babcock, 29 
 Mich. 526; Anderson w. Coburn, 27 
 Wis. 558. 
 
 Where the law required the clerk issuing 
 an order of publication to designate the 
 newspaper in which the order should be 
 published, it was held that the omission 
 of the clerk to make such designation 
 would not authorize the collateral im- 
 
 935 
 
Notice. 
 
 A TTACHMENT—A TTEMPT. 
 
 Definition. 
 
 Where no process is served on the defendant, nor property at- 
 tached, nor garnishee charged, nor appearance entered, a judgment 
 against the defendant, based on a publication of the pendency of 
 the suit, will be void, and may be impeached collaterally or other- 
 wise, and forms no bar to a recovery sought in opposition to it, nor 
 any foundation for a title claimed under it,^ notwithstanding the 
 statute law of the State expressly authorizes a judgment to be 
 rendered against a defendant under such circumstances.* 
 
 ATTEMPT. (See also ASSAULT; INTENT.) — An effort or en- 
 deavor; an act tending towards the accomplishment of a purpose 
 which exceeds a mere intent or design and falls short of an execution 
 of it.^ The word is usually used in the phrase " attempt to commit 
 
 peachment of the attachment suit. Kane 
 V. McCown, 55 Mo. i8i. 
 
 1. Bruce v. Cloutman, 45 N. H. 37; 
 Cooper V. Smith, 25 Iowa, 269; Smith w. 
 McCutchen, 38 Mo. 415. 
 
 2. Pennoyer v. Neff, 95 U. S. 714. 
 Service by publication, or in any other 
 
 authorized form, is sufficient to inform a 
 non-resident of the objectof proceedings 
 taken, where property is once brought 
 under the control of the court by seizure 
 or some equivalent act; but where the 
 suit is brought to determine his personal 
 rights and obligations, that is, where it is 
 merely in personam, such service upon 
 him is ineffectual for any purpose. Pen- 
 noyer V. Neff, 95 U. S. 714. 
 
 3. To " attempt" is to make an effort to 
 effect some object; to make a trial or ex- 
 periment; to endeavor; touse exertion for 
 some purpose. Com. v. McDonald, 5 
 Cush. (Mass.) 365. 
 
 In an action for libel the alleged libel 
 viras an imputation on the plaintiff of 
 an "attempt "to destroy religious in- 
 stitutions; the court, Hosmer, C. J., 
 said: " By the attempt to do an act' I un- 
 derstand an effort or endeavor to effect 
 its accomplishment. This denotes some- 
 thing beyond the infidelity of an individ- 
 ual or the declaration of his opinions, 
 unless they are intentionally made the 
 vehicle of effectuating some object;" and 
 held, that evidence in justification of the 
 libel was rightly rejected which consist- 
 ed' only of expressions of opinion. Stow 
 V. Converse, 4 Conn. 17, 37. 
 
 The word "attempt" in its largest 
 signification means a trial or physical ef- 
 fort to do a particular thing. Lewis v. 
 State, 35 Ala. 380, 387, citing i Bish. Cr. 
 Law, § 511. " When we say that a man 
 attempted to do a thing we mean that he 
 intended to do specifically it, and proceed- 
 ed a certain way in the doing of it. The 
 intent in the mind covers the thing in full ; 
 the act covers it only in part." 
 
 •'Attempt "is expressive rather of a 
 moving toward doing the thing, than of the 
 purpose itself. An " attempt " is an overt 
 act itself. State v. Martin, 3 Dev. L. (N. 
 Car.) 329. See Uhl j'.Com.,6 Gralt. (Va.) 
 706; State V. Davis, i Ired. L. (N. C), 
 125; Morton v. Shopper, 3 Carr. & 
 P.. 373; Stephens v. Myers, 4 Car. & P. 
 349; Rex w. Higgins, 2 East, 12. 
 
 The word "attempt " means to " make 
 an effort, or endeavor, or an attack." 
 An attempt implies more than an inten- 
 tion formed. Some step towards con- 
 summation must be taken before the in- 
 tention becomes an "attempt." Gray v. 
 State, 63 Ala. 66, 73. 
 
 There can be no "attempt" without 
 an act. and an indictment for attempting 
 to commit a felony in which no act is 
 laid is too vague and uncertain to be 
 supported. Randolph v. Com., 6 S. & 
 R. (Pa.) 397. 
 
 Attempt and Intent (Distinguished). — 
 Indeed it seems impossible to doubt that 
 the only distinction between an intent 
 and an attempt to do a thing is that the 
 former implies the purpose only, while 
 the latter implies both the purpose and 
 an actual effort to carry that purpose into 
 execution. Prince v. State, 35 Ala. 367. 
 See Johnson v. State. 14 Ga. 59. in which 
 case it was held that in crimes which re- 
 quire force as an element in their com- 
 mission there is no substantial difference 
 between an assault with intent and an 
 assault with attempt to perpetrate the 
 offence. The word "attempt" signifies 
 both the act and the intent with which 
 the act is done. Cumming v. State, 49 
 Miss. 685, 701;, Bullock v. State, 13 Ala. 
 416; Hart V. State, 38 Tex. 382. 
 
 In State v. Prince, 35 Ala 367, it was 
 held that under an indictment for rape a 
 verdict finding the prisoner " guilty of an 
 assault with attempt to commit n. rape " 
 is equivalent in substance and legal effect 
 to a verdict of guilty of an assault with 
 
 036 
 
CoQstructions. 
 
 A TTEMP T—A TTENDANCE. 
 
 Definition. 
 
 a crime or a felony." * For a full discussion of this subject of 
 " attempt " see Bishop on Criminal Law.* 
 
 ATTENDANCE.— The act of attending ; being present at.3 
 
 intent to commit a rape, inasmuch as an 
 attempt to do a thing necessarily involves 
 an intent to accomplish what is attempt- 
 ed; but in the same State it has been 
 held that an allegation in an indictment 
 that an assault was made with an attempt 
 to kill and murder is not suiScient to au- 
 thorize a conviction, as an attempt to 
 murder is not equivalent to an intent to 
 murder, which is the language of the 
 statute under which the indictment was 
 framed. State v. Marshall, 14 Ala. 411; 
 the court, Dargan, J., saying: "It 
 must be admitted by all that there is a 
 marked distinction between the words 
 ' attempt ■' and ' intent. ' The former con- 
 veys the idea of a physical effort to do 
 or accomplish an act; the latter, the 
 quality of the mind with which an act 
 was done. It is not descriptive of the 
 physical act, but describes the will that 
 induced or governed the act. It cannot 
 then be said that the words ' with an 
 attempt ' are equivalent to the words 
 'with intent.'" See State v. Martin, 3 
 Dev. Law (N. Car.) 329. 
 
 Attempt and Preparation (Distinguish- 
 ed). — " Between preparation for the at- 
 tempt and the attempt itself there is a 
 wide difference. The preparation con- 
 sists in devising or arranging the 
 means or measures necessary for 
 the commission of the offence ; the at- 
 tempt is the direct movement toward 
 the commission after the preparations 
 are made;" therefore it was held that 
 upon a trial on an indictment for an at- 
 tempt to contract an incestuous marriage 
 something more must be shown than 
 mere intention to contract such a mar- 
 riage. The attempt contemplated by the 
 statute must be manifested by acts which 
 would end in the consummation of the 
 particular offence but for the interven- 
 tion of circumstances independent of the 
 will of the party. People v. Murray, 14 
 Cal. 159. 
 
 1. What is an attempt to commit a 
 crime ? It is an endeavor to accomplish 
 it, but falling short of execution of the 
 ultimate design. In many cases it is dif- 
 ficult to determine the difference between 
 preparations and attempts to commit 
 crime. . One may intend to commit a 
 crime and do many things towards its 
 commission, and yet repent of his pur- 
 pose. The law gives to such a one a 
 locus penitentiic. In such cases all that 
 has been done would amount only to 
 
 preparation. GrifBn v. State, 26 Ga. 493,. 
 506. 
 
 Attempt imports an act which if con- 
 summated would accomplish the object in 
 view. A statutory punishment for an at- 
 tempt to poison is not incurred by an un- 
 executed determination to poison, though 
 preparation is made for the purpose. 
 State V. Clarissa, 11 Ala. 57. 
 
 But the failure to accomplish the crime 
 must arise from the intention of the party- 
 charged himself. See McDermott v. 
 People, 5 Park C. C. (N. Y.) 104, where 
 the court said (page 105): " We have then 
 the fixed design of the defendant to burn 
 this barn, and overt acts toward the 
 commission of the offence, and a failure 
 in the perpetration of it. The offence 
 then is fully made out, for the intent to- 
 do the wrongful act coupled with the 
 overt acts towards its commission consti- 
 tufes the attempt spoken of by the stat- 
 ute. Where the individual indicted 
 proceeded no farther toward an actual 
 discharge or shooting than to raise and 
 point a pistol uncocked at the party 
 threatened, it was held not to be " an at- 
 tempt " to discharge a pistol. MuUigai* 
 V. People, 5 Park C. C. (N. Y.) 105. See 
 Reg. V. Lewis, g Car. & Payne, 523; Reg. 
 V. St. George, 9 Car. & Payne, 483. But 
 see Stephens v. Myers, 4 Car. & Payne, 
 
 349- 
 
 Every attempt to commit an offence is 
 a misdemeanor unless it is otherwise spe- 
 cially provided for. Attempts to commit' 
 murder and some other crimes are fel- 
 onies. Steph. Crim. Dig. 29; i Russell 
 on Crimes, 188. 
 
 An offer to bribe is an "attempt"' to- 
 bribe, and punishable as such. Com. v, 
 Harris, i Pa. L. Gaz. 455. 
 
 The filing by the mortgagor of a vol- 
 untary petition in bankruptcy is an "at- 
 tempt " to sell within the meaning of the 
 usual clause in chattel mortgages. Moore 
 V. Young, 4 Biss. (U. S.) 128. 
 
 2. I Bishop's Criminal Law, c, 51, §§, 
 723-772 (7th Ed.). 
 
 Attempt to Enter. — Used in treaties in 
 regard to blockaded ports. Persisting in 
 an intention to enter a blockaded port 
 after warning is not " attempting" to en- 
 ter it. The intention must be accqm- 
 panied by some overt act. Fitzsimmons- 
 V. Newport Ins. Co., 4 Cranch S. C. (U. 
 S.) 1S5; Calhoun v. Ins. Co. Penn., l 
 Binn. (Pa.) 293. 
 
 3. The words "each day's attend- 
 
 937 
 
Constructions. A TTENDANCR—A TTESTA TION. 
 
 Definition. 
 
 ATTESTATION. (See also ACKNOWLEDGMENT ; AUTHENTICA- 
 TION.) 
 
 1. Definition. — The act of witnessing an instrument in writing at 
 the request of the party making the same, and subscribing it as 
 witness.'- 
 
 2. Deeds. — Attestation of deeds was not, at common law, requi- 
 site to their validity.* 
 
 Most States have some statutory provision for the attestation 
 of deeds.^ 
 
 ■ance," in the provision of the constitu- 
 tion of Wisconsin (art. 4, § 21) relating 
 to compensation of members of the legis- 
 lature, does not mean for the time only 
 -that the members are actually engaged 
 -in the business of legislation, but covers 
 the whole period of time during which 
 •the legislature are in session. State ex 
 ■rel. Boyd w. Hastings, 15 Wis. 337. See 
 £x parte Pickett, 24 Ala. 95. 
 
 But where an act for the incorporation 
 ■of religious societies provided that no 
 person should be entitled to vote at any 
 ■election held by any society incorporated 
 under the act "until he shall have been 
 A ' stated attendant ' on divine worship in 
 the said congregation or society," etc., it 
 was held that " stated attendance " must 
 be interpreted to mean the personal pres- 
 -ence of the voter statedly at the reli- 
 gious meetings of the society; and that 
 the regular attendance of the wife or 
 ■other member of the family is not suffi- 
 cient. People V. Tuihill, 31 N. Y. 550. 
 
 Where a statute directs that the magis- 
 trate taking a. deposition shall annex 
 thereto a statement as to whether the op- 
 posite party or his attorney "attended" 
 -at the taking of the deposition, it was 
 held, " By the word 'attended.' as here 
 used, ihe legislature undoubtedly meant 
 something more than mere personal pres- 
 ■ence It signifies that the party was 
 present and participated in the examina- 
 tion of the witnesses." And. therefore, 
 where it appears from the deposition that 
 -a portion of the testimony favorable to 
 Ihe party takinij it "was objected to," it 
 will be presumed that the objection was 
 made by the adverse party, it being certi- 
 fied by the officer that such party "at- 
 tended "at the taking of the deposition. 
 Miller v. McDonald, 13 Wis. 673. 
 
 Attending Physician. — A physician not 
 -engaged in practice, who is present as a 
 friend or neighbor when a wounded man 
 is brought into his own house, and who, 
 at the request of another neighbor, exam- 
 ines the wounds and administers an 
 opiate, is not necessarily an "attending 
 physician" within the conditions of a life- 
 insurance policy on that subject. At the 
 
 most, it is a question for the jury. Gib- 
 son V. American Mut. Life Ins. Co., 37 
 N. Y. 580. 
 
 The words "medical attendance" are 
 not restricted in their meaning to the pro- 
 fessional attendance of a physician, but 
 may include nursing and watching. Scott 
 V. Winneshiek County, 52 Iowa, 579. 
 
 1. Bouvier Law Diet. 
 
 2. 2 Black. Com. 307; 3 Wash. R. P. 
 572; Dole v. Thurlow, 12 Mete. (Mass.) 
 157, 166; Craig V. Pinson, Cheves (S. 
 Car.), 272; Thacher v. Phinney, 7 Allen 
 (Mass.), 146, 149. 
 
 3. Indiana, Iowa, Kansas, and New 
 Mexico appear to be the only States that 
 have no statutory provisions whatever. 
 In Indiana (R. S. 1881, § 2919, sed vide 
 % 2933) and New Mexico (C. L. 1884, § 
 2752) acknowledgment is requisite to the 
 validity of the deed as a conveyance. 
 In Kansas it is not, and provision is made 
 for the proof for purposes of recording of 
 an unacknowledged deed by any compe- 
 tent testimony (C. L. 1881, Conveyances, 
 § 12.) The law is the same in Iowa 
 (Code, § 1959), 
 
 In Conn. (R. S. 1875, tit. 18, ch. 6, part 
 I, § 5), Fla. (Dig. 1881. ch. 32, § I), Ga. 
 (Code 1882, § 2690 and Sess. Laws 1885, 
 ch. 84), La. (Rev. Civ. Code, § 2234), 
 Mich. (How. Stats. 1882, § 5&58)j Minn. 
 (G. S. 1878, ch. 40, § 7), Neb. (C. S. 
 i88r, Pt. I, ch 73, §' I), N. H. (G. L. 
 1878, ch. 135, § 3), Ohio (R. S. 188, § 
 4106), Ore. (G. L. 1876, ch. 6, § 10), 
 Utah (C. L. 1876. 8 617), Wash. (Code 
 1881, § 2312), Wis. (R. S. 1878. § 2216), 
 and Wy. (Laws 1882, ch. i, § 8), attesta- 
 tion is a formal requisite to the valid 
 execution of a deed. 
 
 In Ariz. (C. L. 1877, ch. 42, § 10), Cal. 
 (Civ. Code, 1883. § 1198), Colo. (G. S. • 
 1883, § 213). Dak. (Civ. Code, § 648), 
 Del. (R. C. 1874. ch. 83, § 14), Ky. (G. 
 S. 1873. ch. 24. § 15). Me. (R. S. 1883, 
 ch. 73, § 18), Mass. (P. S. 1882, ch. 120, 
 § 12), Miss. (Code 1880, § 1209), Mo. (R. 
 S. ch. 20, §§ 682, 691), N. J. (R. S. 1877, 
 Conveyances, § 4), Nev. (Comp. Laws 
 1873. 8§ 238-246), N. Y. (Banks Bros, 
 R. S., 7th Ed., pt. 2, ch. I, tit. 2, § 137), 
 
 988 
 
Unacknowledged Deed. 
 
 ATTESTATION. 
 
 Proof for Becord — Wills. 
 
 3. Unacknowledged Deed — Proof for Record. — Proof by attesting 
 witnesses is in most States necessary in order to entitle an un- 
 acknowledged deed to be recorded. ^ 
 
 4. Wills. — Attestation is everywhere, by statute, made a formal 
 requisite to the execution of a will or codicil.'-* 
 
 Tex. (R. S. 1879, §§ 554, 4314), Tenn. 
 (Code 1884, § 2811), Vt. (R. L. 188, § 
 1945). Va. (Code 1873, ch. 117, § 2), and 
 W. Va. (R. S. 1879, ch. 65 §2), attestation 
 is necessary in the case of an unacknowl- 
 edged deed, in order that the deed may 
 be proved for record, but it is not a 
 necessary formality to the execution of 
 the deed, and is, therefore, immaterial as 
 between the parties themselves, and as to 
 subsequent purchasers or attaching cred- 
 itors with notice. Stimson American 
 Statute Law, § 1566. 
 
 In Ala. (Code 1876, |§ ?I45. 2146), 
 Ark. (Dig. 1884, § 650), Tex. (R. S. 1879, 
 § 554), attestation is necessary to the 
 validity of the deed as between the 
 parties only when not acknowledged. 
 Stimson Am. Stat. Law, § 1566. 
 
 In R. I. (P. S. 1882, tit. xxii., ch. 
 173. § 8). Pa. (Erightley Pur. Dig. 1885, 
 Deeds, etc., §§ 20, 24, 25), 111. (R. S. 
 1885, ch. 30, § 24), N. Car. (Code 1883, 
 §§ 1245-9), ^"d Md. (Sess. Laws 1882, 
 ch. 77), provision is made for the proof 
 of an unacknowledged deed, for the 
 purpose of recording it, by one or more 
 witnesses, where the grantor has died 
 or removed from the State. But no wit- 
 nesses are necessary, even in this case, 
 since the deed may, in the absence of 
 attestation, be proved by proving the 
 grantor's signature. 
 
 The number of witnesses required in 
 Ark., Conn.. Fla., Ga., Ky.. La., Mich., 
 Minn., N. H., Ohio, Ore.. Pa., S. Car., 
 Tenn., Tex., Vt., Va., W. Va., Wash., 
 and Wis. is two. In Colo., Ida.. 111., 
 Iowa, Me., Md., Mass., N. J., N. Y., 
 Neb., Utah, and Wy. . one. In La., 
 three, if grantor is blind. In Ala., in 
 case of an unacknowledged deed, one 
 witness is required, unless the party 
 cannot write, when there must be two. 
 Ala. (Code 1876, § 2145). 
 
 1. See preceding note. 
 
 Proof by witnesses is not allowed, in 
 case the grantor is living, unless he 
 refuse or fail to acknowledge the deed, 
 in Me. (R. S. 1883, ch. 73, g§ 18, 20), 
 Mass. (P. S., ch. 120, § 9), Mich. (How. 
 Stats. § 5666), Minn. (G. S. 1878, ch. 40. 
 § 13I, Neb. (C. S. 1881, pt. I, ch. 73, § 
 7), N. H. (G. L. 1878, ch. 135, § 10), R. 
 I. (P. S., ch. 173. § 6), Vt. (R. L. 1880, 
 § 1939), and Wis. (R. S. 1878, § 2228). 
 Stimson Am. Stat. Law, § 1591, A. 
 
 Generally, but a single attesting wit- 
 ness need be present to prove deed, even 
 when the statute requires more than one 
 witness to the deed. Stimson Am. Stat. 
 Law, § 1593, A. 
 
 This is the case in Ala. (Code 1876, § 
 2159), Colo. (G. S. 1883, § 213), Mass. 
 (P. S. ch. 126, § 9), N. J. (R. S. 1877, 
 Conveyances, 4), N. Y. (Banks Bros. R. 
 S., 17th Ed., pt. 2, ch. 3, § 12), Wis. (R. 
 S. 1878, § 2228), and in many other 
 States and Territories. Stimson Am. 
 Stat. Law, § 1593, A (i). 
 
 In Tenn. (Code 1884, § 2850) and 
 W. Va. (Sess. Laws 1883, ch. 13), all the 
 witnesses must be present, if living, 
 and within the State. (Tenn. Code. 1884, 
 § 2862). Stimson Am. Stat. Law, § 1593, 
 A (2). 
 
 In Vt. (R. L. 1880, § 1940) it seems the 
 officer making proof may, in his discre- 
 tion, require presence and testimony of 
 all the witnesses. Stimson Am. Stat. 
 Law, § 1593, A (3). 
 
 For details of facts that subscribing 
 witness must prove, see Stimson Am. 
 Stat. Law, § 1593, B. 
 
 When subscribing witnesses are all 
 dead, the deed may commonly be proved 
 by proving the signature of the grantor 
 and that of at least one witness. Stimson 
 Am. St. Law, § 1595. 
 
 8. At common law. attestation of a will 
 was not necessary. Williams' Ex'rs and 
 Adm'rs, p. 81. 
 
 The statute of frauds (29 Car. II. ch. 
 3, § 5)> requiring wills devising realty to 
 be by writing, signed by the testator and 
 attested and subscribed in the presence 
 of the devisor by three or four credible 
 witnesses, was the first statutory provi- 
 sion in England making attestation nec- 
 essary. Until the Wills Act. i Vict. c. 26, 
 § 9, in England a will of personalty need 
 not be attested. Williams' Ex'rs and 
 Adm'rs, p. 81. That statute required that 
 no will (whether of realty or personalty, 
 or both) should be valid unless the sig- 
 nature of the testator " shall be made or 
 acknowledged by the testator in the pres- 
 ence of two or more witnesses present at 
 the same time, and such witnesses shall 
 attest and shall subscribe 'the will in the 
 presence of the testator." 
 
 Number of Witnesses. — In Conn. (Laws 
 1885, ch. no, § 131), Fla. (Dig. 1881, ch. 
 200, § i), Ga. (Code 1882, § 2414), Me. 
 
 939 
 
"Wills— Attestation in 
 
 ATTESTATION. 
 
 Presence of Spectator, 
 
 5. Wills — Attestation in Presence of Testator. — The attestation of 
 wills is ordinarily required to take place in the presence of the 
 testator.^ 
 
 (R. S. 1883, ch. 74, § i), Md. (R. C. art. 
 49, § 4), Mass. (P. S. ch. 127, § I), N. H. 
 (G. L. 1878, ch. 193, § 6), N. M. (C. L. 
 1884, § 1380), S. Car. (G. S. 1882, § 1854), 
 and Vt. (R. L. 1880, § 2042), three wit- 
 nesses to a will are required. Stimson 
 Am. Stat. Law, § 2644. 
 
 In England, and in Ala. (Code 1876, § 
 2294), Ark. (Dig. 1884, § 6492). Ariz. 
 (C. L. 1877, § 1493). Cal. (Code, | 1276), 
 Colo. (G. S. 1883, § 3482), Dak. (Civ. 
 Code, § 691), Del. (R. C. 1874. ch. 84, § 3), 
 111. (R. S. 1880, ch. 148. § 2). Ind. (R. S. 
 
 1881, § 2576), Iowa (Code 1880, § 2326), 
 Kan. (R. C. 1881, ch. 117, § 2). Ky. (G. S. 
 1873, ch. 113, § 5). Mich. (How. Stat. 
 
 1882, § 5789), Minn. (G. S. 1878. ch. 47. 
 § 5), Miss. Code 1880, § 1262), Mo. (i R. 
 S. § 3962), Neb. (C. S. 1881. pt. I, ch. 23, 
 § 127), Nev. (C. L. 1873, § 814). N. J. (R. 
 S. 1877. Wills, § 22), N. Y. (Banks Bros. 
 R. S. 7th Ed. pt. 2. ch. 6, tit. i, art. 3, 
 § 40). N. Car. (Code 1883, § 2136). Ohio 
 (R. S. 1880, § 5916), Ore. (G. L. 1872, ch. 
 64, § 4), Pa. (Pur. Br. Dig. 1872. Wills, 
 § 6), Tenn. (Code 1884. § 3003). Tex. (R. 
 S. 1879, § 4859); Utah (Sess. L. 1884, ch. 
 44, tit. I, ch. i,,§ 6). Va. (Code 1873, ch. 
 118, § 4), Wash. (Code 1881, § 1319), W. 
 Va. (Am. Code, 1884, ch. 77, § 3), Wis. 
 (R. S. 1878, § 2282), Wy. (Laws 1882, ch. 
 104, § 4), two witnesses are required, 
 Stimson Am. Stat. Law, § 2644. 
 
 In Pa. the witnesses need not sign the 
 will. 
 
 1. This is the case in England, and in 
 Ala., Ariz., Cal., Conn., DeL, Dak., Fla., 
 Ga., 111.. Ind.. Kan., Ky., Me., Md., 
 Mass., Mich.. Minn., Miss , Mo.. Mon., 
 Neb., Nev., N. H., N.J., N. Y., N. Car., 
 Ohio, Ore., R. I., S. Car., Tenn., Tex., 
 Utah, Vt., Va., Wash., W. Va., Wis. 
 Stimson Am. Stat. Law, § 2644. 
 
 In Conn., S. Car., Utah, Vt., Va., and 
 W. Va. the witnesses must also sign in 
 each other's presence. Stimson Am. 
 Stat. Law, § 2644. 
 
 And in Ark., Cal., Dak., Mon., N. Y., 
 Utah, at the testator's request. 
 
 Attestation in the presence of the tes- 
 tator means within his view. It is not 
 necessary that the testator actually see 
 the witnesses sign, but they must sign in a 
 place where he can see them sign if he 
 desires to. Hill v. Barge, 12 Ala. 687; 
 Robinson v. King, 6 Ga. 539; Lamb v. 
 Girtman, 26 Ga. 625; s. c, 33 Ga. 289; 
 Howard's Will, 5 T. B. Mon. (Ky.) 199; 
 Dewey v. Dewey, i Mete. (Mass.) 349; 
 
 Wright z/. Lewis, 5 Rich. (S. Car.) 212; 
 Ray V. Hill, 3 Strobh. (S. Car.) 297; 
 Meurer's Will, 44 Wis. 392; Spoonemore 
 V. Cables, 66 Mo. 579; Matter of Dow- 
 nie's Will. 42 Wis. 65; McElfresh v. 
 Guard, 32 Ind. 408; Bradford v. Vinton, 
 26 N. W. R. (Mich.) 401; Clerk v. Ward,s 
 4 Bro. P. C. 71. 
 
 The witnesses need not be in the same 
 room, or even the same house, with the 
 i-estator, if within his view. Watson v. 
 Pipes, 32 Miss. 451; Neil v. Neil, i Leigh 
 (Va.). 6; in the Goods of Trimnell, ir 
 jur. N. S. 248; Casson v. Dade, i Bro. 
 C. C. 99. 
 
 Where testator is in extremis and un- 
 able to move, witnesses must sign in a 
 place where he can see them without 
 changing his position. Reed v. Roberts, 
 26 Ga. 294; Jones v. Tuck. 3 Jones 
 (N. Car.), L. 202; Neil v. Neil, i Leigh 
 (Va.), 6; Watson v. Pipes, 32 Miss. 451; 
 Tribe v. Tribe, i Rob. Ecc. R. 775. 
 
 Attestation in an adjoining room is 
 not in the presence of the testatrix,' 
 although she could have seen it by chang- 
 ing her position from that occupied by 
 her when she signed, unless she actually 
 did so change her position, especially 
 when it did not appear that testatrix 
 knew at the time that the witnesses were 
 signing. In the Goods of Killick, 3 S. & 
 T. 578; Doe V. Manifold, i M. & S. 294; 
 Mandeville v. Parker, 31 N. J. Eq. 242, 
 and note. 
 
 Where the attestation was made in an 
 adjoining room within the view of the tes- 
 tatrix, but she was unaware that they 
 were signing, held, that the attestation 
 was not in her presence. Jenner w.' 
 Ffinch, L. R. 5 P. D.' 106. 
 
 In case the testator is blind, attestation 
 takes place in his presence if made where 
 he can be sensible of the presence of the 
 witnesses through his other senses, and 
 where, but for his blindness, he could see 
 them sign. Riggs v. Riggs, 135 Mass. 
 238; Pierc'.ys Goods, i Rob.Ecc.278; Reed 
 V. Roberts, 26 Ga. 294. 
 
 So where an attestation was made in 
 an adjoining room within the testator's 
 hearing, and where he could have seen 
 them if he had been able to turn his head 
 (which by reason of an injury he was un- 
 able to do), he being conscious of what 
 was being done, it was held that the at- 
 testation was in his presence. Riggs v, 
 Riggs, 135 Mass. 238. 
 
 Attestation in the same room is not 
 
 940 
 
Attesting Witness, 
 
 A TTESTA TION. Proof of Attested Writings. 
 
 6. Subscription by Attesting Witness. — Any mark made by the 
 witness upon the attested document with the intention of indicat- 
 ing his attestation is a valid subscription of it.^ 
 
 7. Proof of Attested Writings. — In general attested writings can- 
 not be proven without producing in court at least one of the at- 
 testing witnesses. If none of the witnesses can be produced in 
 court, the regular mode of proof is by proving the handwriting of 
 at least one witness.* 
 
 attestation in the presence of the testa- 
 tor when taking place out of sight of the 
 testator, although the intervening object 
 was only a door-shutter. Brooks i*. Duf- 
 fell, 23 Ga. 441. 
 
 Attestation is not made in the presence 
 of the testator if the testator is insensi- 
 ble at the time, although the witnesses 
 sign in a place within his view. Right 
 V. Cater, i Dougl. 241. 
 
 1. In the Goods of Duggins, 39 L. J. P. 
 24. 
 
 But the witness must himself make the 
 subscription. In the Goods of Duggins, 
 39 L. J. P. 24; Pryor v. Pryor, 29 L,. J. 
 P. 114. 
 
 Where witness at testator's request sub- 
 scribed her husband's name instead of 
 her own, held, that the subscribing 
 witness did not intend the subscrlplion 
 to represent her own signature, and that, 
 therefore, the attestation was invalid. 
 Pryor v. Pryor, 29 L. J. P. 114. 
 
 So the witness may sign a name not 
 his own, if with the intention of indicat- 
 ing his own attestation of the instru- 
 ment. In the goods of Duggins, 39 L. J. 
 P. 24. 
 
 But where a servant subscribed, 
 " servant to Mr. Sperling," without any 
 name.the subscription was held sufficient. 
 In the Goods of Sperling, 3 Sw. & Tr. 
 272. 
 
 A witness may subscribe by a mark, 
 although able to write. In re Amiss, 2 
 Rob. R. 116; Doej/. Davies, 9 Q. B 648. 
 
 The initials of witness constitute a suf- 
 ficient subscription. In re Christian, 2 
 Rob. Eccl. R. no. 
 
 Subscription by witness need not be at 
 the end of the will. Roberts v. Phillips, 
 4 El. & Bl. 4 so- 
 il is a sufficient subscription where the 
 witness, being unable to write, holds the 
 top of the pen, while a third person 
 writes witness's name upon the will. 
 Lewis V. Lewis, 2 Sw. & Tr. 153; In the 
 Goods of Frith. 27 L. J. P. 6; Harrison 
 V. Elvin, 3 Q. B. 117; Bell v. Hihghes, 5 
 L. R. Ir. 407. 
 
 Name of attesting witness who can 
 not write may be written by a third per- 
 son at his request and in his presence. 
 
 Lord V. Lord, 58 N. H. 7; Derry's Es- 
 tate, Myrick's Prob. (Cal.) 202. 
 
 A subscription is valid, although the 
 witness did not know he was witnessing 
 until he had partly written his name. 
 Ke Phillips, 98 N. Y. 267. 
 
 Witness need not know the nature or 
 contents of the instrument he subscribes. 
 He attests the signature of the testator. 
 Canada's Appeal, 47 Conn. 450. 
 
 Where a witness starts to subscribe his 
 name, but by reason of weakness is una- 
 ble, after writing his Christian name, to 
 complete his signature, held not a suf- 
 ficient subscription. In the Goods of 
 Maddock, L. R. 3 P. D. 169. 
 
 An acknowledgment by a witness of a 
 previous subscription by correcting an 
 error therein (Hindmarsh v. Charlton, 8 
 H. of L. C. 160). or by retracing his sig- 
 nature with a dry pen (In the Goods of 
 Maddock, L. R. 3 P. D. 169), is not a valid 
 subscription or a valid substitute there- 
 for. 
 
 2. The rule applies to attested docu- 
 ments not required by law to be attested. 
 Higgs V. Dixon, 2 Stark. 180; Heckert v. 
 Haine, 6 Binn. (Pa.) 16; Wishart v. Dow- 
 ney, 15 S. & R. (Pa.) 77. 
 
 An admission of execution does not 
 dispense with proof by subscribing wit- 
 nesses. Abbot 2/. Plumbe, i Dougl. 216; 
 Fox V. Reil, 3 Johns. (N. Y.) 477. See 
 also Henry v. Bishop, 2 Wend. (N. Y). 
 575. But such proof may be waived by 
 solemn agreement pending the cause. 
 Laing v. Kaine, 2 B. & P. 85. 
 
 The production of a subscribing wit- 
 ness is not required where he is dead. I 
 Greenl. Ev. § 572; Barnes v. Trom- 
 powsky. 7 T. R. 265; Fox v. Reil, 3 
 Johns. (N. Y.) 477. Or cannot be found 
 after diligent search, i Greenl. Ev. § 
 572; Coghlan V. Williamson, i Dougl. 
 93; Anon., 12 Mod. 607; Jackson v. 
 Burton. 11 Johns. (N. Y.) 64; Mills v. 
 Twist, 8 Johns. (N. Y.) 121. Or is out 
 of the jurisdiction of the court, i Greenl. 
 Ev. § 572; Holmes v. Pontin, cf. Peake's 
 Cas. 99; Banks -v. Farquharson, i Dick. 
 167; Sluby V. Champlin, 4 Johns. (N, Y.^ 
 461; Homer v. Wallis, 11 Mass. 309, 
 Cooke V. Woodrow, 5 Cranch, 13, Or is 
 
 941 
 
ATTESTATION— ATTORNEY AND CLIENT. 
 
 ATTORNEY AND CLIENT. (For Professional Communications, 
 see Privileged Communications. See also Champerty; 
 Prosecuting Attorneys ; Implied Trusts.) 
 
 1. Definition. 
 
 2. Admission. 
 
 3. Sumtnary Jurisdiction of 
 
 over Attorneys. 
 
 4. Privileges and Disabilities. 
 
 5. Liability to Third Parties. 
 
 6. Retainer and Appearance. 
 
 7. Powers Iin-plied by Retainer. 
 
 8. Duration of Authority. 
 
 9. Duties and Dealings. 
 Courts Dealings. 
 
 10. Liability to Client. 
 
 ' II. Liability of Client to Attorney, 
 
 12. Express Contract. 
 
 13. Liens. 
 C&argijig Lien. 
 
 1. Definition. — "An attorney is one that is set in the turn, state, 
 or place of another." ^ The term includes any substitute or agent 
 who is appointed to act for another.* An attorney in fact is a 
 private or special agent appointed for some particular or definite 
 purpose, not connected with a proceeding at law, by a formal 
 
 insane, i Greenl. Ev. § 572; Currie v. 
 Child. 3 Campb. 283. (But the .fact that 
 the witness is dangerously, sick is not suf- 
 ficient to admit proof of handwriting. 
 Harrison v. Blades, 3 Campb. 437.) Or 
 has subsequently become infamous, i 
 Greenl. Ev. § 572; Jones v. Mason, 2 Stra. 
 833. Or he has, without the agency of the 
 party, become interested in the suit or 
 otherwise incapacitated, i Greenl. Ev. 
 § 572; Goss V. Tracy, I P. Wms. 289; 
 Godfrey v. Norris, i Stra. 34; Hamilton 
 V. Marsden, 6 Binn. 45; Saunders v. Fer- 
 rill, I Ired. (N. Car.) 97. 
 
 In the above cases the instrument may 
 be proved >by proving the handwriting of 
 at least one witness, i Greenl. Ev. § 
 575; Kay V. Brookman, 3 C. & P. 555; 
 Mott V. Doughty, i Johns. Cas. (N. Y.) 
 230; Sluby V. Champlin, 4 Johns. (N. Y.) 
 461; Douglas V. Sanderson, i Dall. n6; 
 Cooke V. Woodrov^r, 5 Cranch, 13. 
 
 Where the instrument has been lost or 
 destroyed, the attesting witnesses need 
 not be called, i Greenl. Ev. § 572; 
 Keeling v. Ball, Peake Ev. App. 78. 
 And proof of handwriting is of course 
 unnecessary. • 
 
 Attesting witnesses need not be called 
 in case of official bonds, nor need the 
 witness's handwriting be proved. I 
 Greenl. Ev. § 573; Kello v. Maget, i Dev. 
 & Bat. (N. Car.) 414. 
 
 So where the instrument is not di- 
 rectly in issue, the witnesses need not be 
 called or their handwriting proved. Com- 
 monwealth V. Castles, g Gray (Mass.), 
 121; t Greenl. Ev. § 573 {fi); Curtis v. 
 Belknap, 21 Vt. 433. 
 
 Execution need not be proved by call- 
 ing the subscribing witnesses or prov- 
 ing their handwriting when the adverse 
 
 party produces the instrument when 
 called upon, and claims an interest under 
 it in reference to the subject-matter of 
 the suit. Pearce v. Hooper, 3 Tau. 60; 
 Rearden v. Minter, 5 M. & G. 204. 
 
 The testimony of a subs,cribing witness 
 may be rebutted by other evidence or 
 testimony. Whitaker v. Salisbury, 15 
 Pick. (Mass.) 534; Duckwall v. Weaver, 
 2 Ohio, 260; Smith v. Asbell, 2 Strobh. (S. 
 Car.) 141; Reinhart v. Miller, 22 Ga. 
 402. 
 
 Where none of the subscribing wit- 
 nesses are available, and no proof of their 
 handwriting can be had, evidence of the 
 handwriting of the party executing the 
 instrument is competent. Jones v. 
 Blount, I Hayw. (N. Car.) 238; Clark v. 
 Sanderson, 3 Binn. (Pa.) 192; Duncan v. 
 Beard, 2 Nott. & Mc. (S. Car.) 400. In- 
 ability to produce any of the witnesses 
 must be shown before proof of hand- 
 writing can hz rc:;orted to. Jackson v. 
 Burton, 11 Johns. (N. Y.) 64. 
 
 Where an attestec". instrument is lost or 
 destroyed, its execution must be proved 
 by the suL jcribing witnec;js. Gillies v. 
 Smither, 2 Star. R. 528; Keeling v. Ball, 
 Peakc Evid. Append. l:txviii. 
 
 Unless the party f..^ring the instru- 
 ment is unable to ascertain who they were. 
 Keeling v. Ball, Peake Evid. Append. 
 Ixxviii. 
 
 Where it is necessary to resort to proof 
 Df handwriting, the handwriting of but a 
 single witness need generally be proven. 
 I Greenl. Evid. § 575. 
 
 1. The word "attorney" is derived 
 from the old French attoumi, signifying 
 substitute. Co. Litt. 51, b. 
 
 2. Com. Dig. Attorney; Weeks on 
 Attorneys, § a8. 
 
 942 
 
Seflnition. 
 
 ATTORNEY AND CLIENT. 
 
 AdmiBBiOQ.. 
 
 authority, called a letter or power of attorney, in which is expressed 
 the particular act or acts for which he is appointed.^ An attorney 
 at law is an officer in a court of justice who is employed by a party 
 in a cause to manage the same for him.** 
 
 2. Admission. — " The office of attorney-at-law is public so far as 
 concerns the necessity of license of some kind for its exercise, and 
 the duty imposed upon the attorney of subserving the interests of 
 public justice in the mode pointed out in his oath of admission.* 
 
 1. Story on Agency, ch. 3, § 25; Co. 
 Litt. 51, b, 52, b; Weeks on Atty. § z8. 
 See Power of Attorney. 
 
 2. Bouv. Diet. 206. 
 
 In France appearance by attorney was 
 first allowed by letters patent under 
 Philip de Bel, a.d. 1240. In civil ac- 
 tions such appearance has been allowed 
 in England from the time of the earliest 
 records of the courts of that country. 
 They are mentioned in Glanville, Brac- 
 ton, Fleta, and Britton,and a case turning 
 on a party's right to appear by attorney is 
 reported. Y. B. 17 Edvv. III. p. 8, case 23. 
 
 In criminal actions, however, only such 
 legal questions as the accused himself 
 could suggest were counsel permitted to 
 argue for him. Not until after the revo- 
 lution of 1688 was a full defence allowed 
 on trials for treason, and the privilege 
 was not extended to persons accused of 
 other felonies until 1836. The apology 
 for its denial was the fiction that the 
 judge was counsel for the prisoner. 
 Cooley's Const. Limitations (3d Ed.), 
 332; 4 Macaulay's Hist, of Eng. ch. 21; 
 Weeks on Attorneys, § 184. 
 
 " It is a universal principle of Ameri- 
 can constitutional law that a prisoner 
 shall be allowed counsel. If unable 
 to employ counsel, the court will assign 
 some one to defend him." Weeks on 
 Attorneys, § 184. 
 
 Counsel so assigned cannot refuse to 
 act. Vise v. Hamilton Co., ig 111. 18; 
 Sharswood's Legal Ethics, gi, g2. 
 
 In the absence of statutory provision, 
 an attorney assigned by the court to de- 
 fend one charged with a crime cannot 
 recover from the county for his services. 
 Cooley's Const. Lim. (3d Ed.) 334; 
 Case V. Shawnee Co.. 4 Kan. 511; People 
 V. Albany Co., 28 How. Pr. (N. Y.) 22; 
 Wayne Co. w. Waller, go Pa. St. gg; 
 Wright V. State, 3 Heisk. (Tenn.) 256; 
 Elam w. Johnson. 48 Ga. 348; Rowe v. 
 Yuba Co.. 17 Cal. 61; Kelley v. Andrew 
 Co., 43 Mo 338; Weistod v. Winnebago 
 Co., 20 Wis. 418; Reg. V. Fogarty, 5 
 Cox C. C. 161 ; Jones ■v. Coza, 16 La. 
 Ann. 428; Gordon v. Dearborn Co., 52 
 Ind. 322. 
 
 In England the term attorney is given 
 
 to those officers who practise in courts 
 of common law; solicitors, to those who 
 practise in courts of equity; proctors, to 
 those who practise in courts of admiralty 
 and ecclesiastical courts, i Bouv. Diet. 
 206. 
 
 3. In England the admission of at- 
 torneys is governed by 6 & 7 Vict. ch> 
 73. Barristers are called to the bar by the 
 benchers of their respective inns. Th& 
 applicant must be twenty-one years old, 
 and have kept twelve terms. Weeks- 
 on Attorneys, § 15 ^^ seq. 
 
 It is requisite to the admission of at- 
 torneys or counsellors to practise in the 
 Supreme Court of the United States, 
 that they shall have been such for thre& 
 years past in the supreme courts of the 
 States to which they respectively belong, 
 and that their private and professional 
 character shall appear to be fair. Rules 
 of Supreme Court of United States, Rule 
 2, originally promulgated Feb. 5, l7go; 
 I Cranch (U. S.), xvi; i Wheat. (U. S.> 
 xiii; Pet. (U. S.) vi. Revised and cor- 
 rected, Dec. Term, 1858. 21 How. (U. 
 S.) 5; Ex parte Tillinghast, 4 Pet. (U. S.> 
 108. 
 
 The requisites differ somewhat in the 
 different States, but in all the applicant 
 must be twenty-one years of age, pass an 
 examination either in open court or be- 
 fore a committee appointed by the court, 
 be of fair moral character, and take an 
 oath to support the Constitution of the 
 United States and of the State. Weeks- 
 on Attorneys, § 67 et seq. 
 
 The oath in Pennsylvania reads: 
 "You do swear or afiirm that you will 
 support the Constitution of the United 
 Slates and the Constitution of this Com- 
 monwealth, and that you will behave- 
 yourself in the office of attorney within 
 this court with all good fidelity as well 
 to the court as to the client, and that you 
 will use no falsehood nor delay, any per- 
 son's cause for lucre or malice." i 
 Brightly's Purdons Dig. c. i8g. Under 
 the last clause the attorney violates his^ 
 oath when he presses for an unjust judg- 
 ment or the conviction of an innocenL 
 man. Rush v. CavanSugh, 2 Pa. St. i8g. 
 
 A similar provision exists in the' New- 
 
Admission. 
 
 ATTORNEY AND CZ/^A^r. summary Jurisdiction. 
 
 Due admission to practice, according to the lex fori, is essential to 
 enable a person to practise either as attorney, solicitor, or counsel 
 in a particular court. "^ The admission is held to be a judicial 
 and not a ministerial act, and is therefore not the subject of a writ 
 of mandamus'^ A citizen of one State is not entitled as of right 
 to admission to the bar af another State. ^ Nor can the legislature 
 take the power of examination and passing upon the qualifica- 
 tions of an applicant away from the court and confer it upon non- 
 residents by passing an act allowing such admission.* Proceedings 
 taken by practitioners whose qualifications are defective are not 
 themselves void on that account.^ 
 
 3. Summary Jurisdiction of Courts over Attorneys. — The summary 
 jurisdiction of courts over attorneys is sufficiently accounted for by 
 the necessary and inherent control vested in them over the conduct 
 of their own officers,® and was expressly recognized by the statutes 
 of Westminster, i & 4 Hen. IV. ch. 18.' The jurisdiction exists 
 " whenever the employment is so connected with their professional 
 character as to afford a presumption that their character formed 
 the ground of their employment." ** The ground of the inter- 
 
 York Code of Civil Procedure of Jan. 2, 
 '850, § 511; s. c, 3 Am. Law Journal 
 
 (N. S.)45i. 
 
 An attorney is not a civil, govern- 
 mental, or public officer; he is not the 
 holder of an office of public trust within 
 the meaning of the Constitution. He is 
 simply an officer of the court. Ex parte 
 Garland, 4 Wall. (U. S.) 332. 
 
 An attorney or counsellor does not 
 hold an office, but exercises a privilege 
 or franchise; as attorneys or counsellors 
 perform no duties on behalf of the 
 government, they execute no public 
 trust. Seymour v. Ellison, 20 Johns. 
 (N. Y.) 492. 
 
 Hence a statute providing that " every 
 person elected or appointed to any office 
 of trust, civil or military," shall take a 
 particular form of oath does not apply 
 to attorneys. Ex parte Faulkner, i W. 
 Va. 269; IngersoU v. Howard, i Heisk. 
 (Tenn.) 247; Champion v. State, 3 Colw. 
 (Tenn.) 114. See also, in this connection, 
 Cummiiigs V. Mo, 4 Wall. (U. S.) 277. 
 
 The order of this court admitting an 
 attorney to practice is in the nature of a 
 judgment that he possessed the requisite 
 qualifications when the order was made 
 and entered. It follows that the judg- 
 ment, while it continues in force, is an 
 adjudication determinative of the fact 
 that the defendant was of "good moral 
 character'' when he was admitted by 
 this court, and an attack upon his previ- 
 ous character cannot be made the basis 
 of an order for his removal. Neverthe- 
 less, this court will be justified, of its own 
 motion in setting aside the order ad- 
 
 mitting an attorney to practice, should it 
 appear that the order was obtained by 
 means of fraudulent artifices or conceal- 
 ment; and it seems (though held un- 
 necessary to decide) that in ascertaining 
 whether fraud has been practised by an 
 application for admission, the court 
 would hear evidence to show that the 
 order of admission was secured by fraud- 
 ulent concealment of facts affecting the 
 moral character of the person admitted. 
 Case of Lowenthal, 61 Cal. 122. 
 
 If an attorney is admitted under a 
 misapprehension of facts, the court will 
 rectify the error by striking his name 
 from the roll. Brown's Case, 8 Pitts. L. 
 J. (Pa.) I ; People v. Betts. 4 Pac. Rep. 42. 
 
 As to public duties of attorneys, see 
 Waters v. Whittemore, 22 Barb. (N. Y.) 
 505; Austin's Case, 5 Rawle (Pa.), igi; 
 Sharswood's Leg. Eth. 
 
 1. Weeks on Attvs.§ 43, and cases cited. 
 
 2. In re Bracketiridge, i S. & R. (Pa.) 
 187. 
 
 3. In re Henry v. Snyder. 40 N. Y. 
 560; Bradwell v. State, 16 Wall (U. S.) 
 
 130- 
 
 4. In re Moseness, 39 Wis. 509. 
 
 5. Peterson ^!. Parriott, 4 W. Va. 42; 
 Reader v. Bloom, 3 Bing. (Eng.) g. 
 
 6. No rule or statute is necessary to 
 authorize its exercise. In re Goodrich, 
 79 111. 148; Penobscot Bar v. Kemble, 
 64 Me. 140. 
 
 7. Weeks on Attorneys, § 80; Brad- 
 ley V. Fisher, 13 Wall. (U. S.) 323. 
 
 8. Weeks on Attorneys, §§ 77, 78; In 
 re Aitken, 4 Barn. & A. 47; In re Car- 
 dross, 5 M. & W. 547. 
 
 944 
 
summary 
 
 ATTORNEY AND CLIENT. 
 
 Jurisdiction. 
 
 iference is the dignity of the court offended in the conduct of its 
 ■ofificer, and its object to punish summarily by attachment his 
 misconduct or disobedience, and to reinstate the injured party in 
 his rights.! This jurisdiction extends to compelling an attorney 
 to perform his undertakings ;* to staying proceedings begun with- 
 out authority, on motion, and compelling attorney to pay the 
 •costs ;'* to compelling them to observe the strictest gqod faith in 
 their relations with their clients ;* to preventing them from dis- 
 'closing privileged communications ;^ to delivering up documents ;* 
 to payment of money and costs ;'' to answerinTg matters of afifi- 
 ■davits;^ to contempts of court;* and to striking them from the 
 
 1. Weeks on Attorneys, § 78. 
 
 2. Weeks on Attorneys, § 7S; Burrel 
 ■z'. Jones, 3 Barn. & A. 47; In re Swan, 
 10 Jur. 75; 15 L. J. Q. B. 402; Ex parte 
 Hughes, 5 Barn. & A. 482; Iverson v. 
 Corington, i Barn. & C. l5o. See also 
 
 In the Matter of H , an attorney, 87 
 
 i^f. Y. 251. 
 
 3. Weeks on Attorneys, § 79. 
 
 On application to stay proceedings on 
 ground that plaintiff's attorney is going 
 ■on with the action contrary to the direc- 
 tion of his client, the plaintiff should be 
 ■made a party to the rule. Thatcher v, 
 D'Aguilar. 11 Ex. 436. 
 
 4. Weeks on Attorneys, § 77. 
 
 The question of negligence will not 
 ;generally be tried 'on motion, but only 
 •questions of good faith and integrity. 
 Sharp V. Hawker. 3 Bing. N. C. 66; In 
 -re Aitken, 4 Barn. & A. 47; Cohen v. 
 Wright, 22 Cal. 315. 
 
 Proceedings on motion for money 
 •collected by an attorney will not bar an 
 action on the case for negligence. Coop- 
 wood V. Baldwin, 25 Miss. 129. 
 
 But proceeding by action for money 
 -collected is usually a waiver of the right 
 to proceed by attachment. Bohenan v. 
 Peterson, g Wend. (N. Y.) 503. 
 
 In the absence of fraud or misconduct, 
 lapse of lime, for instance seven years, 
 -after settlement of transactions between 
 attorney and client will operate as a bar 
 to any summary interference. Ex parte 
 Shipden, 6 Dowl. & R. 338. 
 
 One who was an attorney remains 
 liable to the summary jurisdiction of the 
 •court for his misconduct while he was an 
 ■attorney, although he may have taken 
 his name off the roll and ceased to be one. 
 Simes v. Gibbs, 2 Jur. 418; Scott v. Van 
 Alstyne, 9 Johns. (N. Y.) 216. 
 
 5. If an attorney should so far forget 
 his professional duty as to voluntarily 
 offer to give in testimony facts commu- 
 nicated to him by his client, without 
 express consent of his client so to do, "a 
 short way of preventing him would be to 
 -Btrike his name off the roll." Earl of 
 
 Cholmondeley's Case, 19 Ves. 261; Peo- 
 ple V. Barker, 56 III. 287. 
 
 6. Weeks on Attorneys, §§ 92, 93. 
 Papers upon which the attorney, as a 
 
 lien for the" balance of his account, or 
 deeds which he holds as. party or trustee, 
 are excepted. /«« Williams, 4 L.T. N. S. 
 103; Duncan 7A Richmond, 7Taunton,39i. 
 
 But an attorney is not entitled to 
 retain drafts and copies of original deeds 
 for which his client has paid, and on his 
 refusal to deliver them up the court may 
 compel him to do so. Miles v. Evans, 
 3 Jur. 170. 
 
 An attorney with whom a will has been 
 deposited by the testator will not be 
 compelled to deliver it up to the sole 
 legatee under it. Ex parte Smart, i Har. 
 & W. 526. 
 
 Nor to produce papers in order to give 
 evidence of a charge of forgery against 
 his client. Rex z,. Dixon, 3 Burr. 1687. 
 
 The court can only interfere at the 
 instance of the party who deposited the 
 papers with him. In re Thornton, 2 D. 
 P. C. 156; Inre Bunting, 2 Ad. & E. 467. 
 
 7. Costs have been imposed in cases 
 of fraud and malpractice, sometimes for 
 gross negligence, for pleading a sharn 
 plea, though instructed by the client to 
 do so. Vincent v. Grpdiell, i Chit. 182. 
 For drawing papers with unnecessary 
 prolixity. Ex parte Smith, i Atk. 139. 
 For inserting immaterial, irrelevant, or 
 scandalous matter in the pleadings. 
 Cushman v. Brown, 6 Paige (N. Y.), 539. 
 For making obviously unnecessary appli- 
 cations to the court or causing exdense 
 clearly unnecessary. Rolfe v. Rogers, 
 5 Barn. & A. 533. 
 
 8. Weeks on Attorneys, § 95. 
 Where the misconduct charged amounts 
 
 to an indictable offence, the court will 
 not grant a rule calling upon the attorney 
 to answer the matters of the affidavit, but 
 will grant a rule nisi calling upon him to 
 show cause why he should not be struck 
 off the roll. Stevens v. Hill, 10 Mees. & 
 W. 28. 
 
 9. Weeks on Attorneys, § 97. 
 
 I C. of L.— 61 
 
 945 
 
Summary 
 
 ATTORNEY AND CLIENT. 
 
 JurisdictioiL. 
 
 rolls or suspending them from practice for professional misconduct. 
 The court will exercise the jurisdiction when necessary to vindicate 
 its honor, even though the undertaking be not strictly enforceable 
 at law/ or the misconduct be not such as would subject the 
 attorney to an indictment.** 
 
 Matters of centempt rest within the 
 discretion of the court, and mandamus will 
 not lie. People v. Turner, i Cal. 143, 
 188; People zi. Justices, I Johns. Cas. 
 (N. Y.) 181; Ex farts Secombe, 19 How. 
 (U.S.) 9. 
 
 To swear to an incredible story in an 
 affidavit has been held a contempt. In 
 re Elsam, 3 Barn. & C. 597. 
 
 The publication of letters in 'a news- 
 paper, tending to influence the result of 
 a pending suit, is a contempt. Daw v. 
 Ely, 7 L. R. Eq. 49. 
 
 But not the publication of a criticism 
 of the rulings in a case after determina- 
 tion of causes. Weelss on Attorneys, § 97. 
 See also State v. Anderson, 40 Iowa, 207. 
 
 When an attorney is in contempt for 
 disobeying a rule, the proper practice is 
 to move for an attachment, and' not to 
 apply to have him stricken from the rolls. 
 Ex parte Grant, 3 D. P. C. 320. 
 
 1. Weeks on Attorneys, § 78. 
 
 The courts have enforced summarily 
 an undertaking by an attorney on which 
 an action could not be brought by reason 
 o! the provisions of the Statute of Frauds. 
 In re HlUiard, 9 Jur. 664; Evans v. Dun- 
 combe, I Comp. & J. 372. 
 
 But the guarantee must be good in 
 form, and oiie on which an action would 
 lie. /« re Kearns, 11 Jur. 521. 
 
 Similarly lapse of time forms no ground 
 for preventing the court from interfering 
 in enforcing such an undertaking, though 
 it does in the ordinary course of applica- 
 tions against attorneys. In re Kearns, 
 II Jur. 521. 
 
 The question is simply did he or did 
 he not enter into the undertaking in the 
 character of an attorney? If he did, the 
 court will hold him liable. Weeks on 
 Attorneys, § 78, and cases cited. See 
 
 also In the Matter of H , an attorney, 
 
 87 N. Y. 251. 
 
 2. Suspension and Disbarment. — To 
 maintain a motion to strike from the 
 rolls, the charge must affect the official 
 character of the attorney. People v. 
 Allison, 68 III. 151; Ex parte ^il^Krivasw & 
 Hensel, 95 Pa. St. 220; 40 Am. Rep. 637. 
 
 The offence need not be such as to 
 subject him to indictment, but its char- 
 acter must be such as shows him unfit to 
 be intrusted with the powers of the pro- 
 fession. Baker v. Com., lo Bush (Ky.), 
 ^92; In re Blake, 30 L. J. (Q. B.) 32; 
 
 United States v. Porter, 2 Cranch (C. C.\ 
 60; Austin's Case, 5 Rawle (Pa.), 191. 
 
 Discreditable acts, if not connected 
 with his duties, will not give the court 
 jurisdiction. Dickens' Case, 67 Pa. St. 
 169. 
 
 As attempting to make an opposite 
 attorney drunk. Dickens' Case, 67 Pa.^ 
 St. 169. 
 
 Indulgence in vices not affecting his 
 personal or professional, integrity i&not 
 sufficient ground. Baker v. Com., v> 
 Bush (Ky.), 592, 
 
 Nor is ignorance of the law a good 
 cause. Bryant's Case, 24 N. H. 147. 
 
 An attorney cannot be disbarred for 
 refusing in presence of the court to make 
 answer in writing to a rule, upon the 
 ground of punishing the refusal as a con- 
 tempt. Ex parte Robinson, 19 Wall. 
 (U. S.) 505. 
 
 Contempt of process and refusal to 
 appear before an examiner is not suflS- 
 cient. Com. v. Newton, i Grant's Cases 
 (Pa.), 453. 
 
 Contempt and gross misbehavior in 
 office generally are distinct offences. 
 Ex parte Bradley, 7 Wall. (U. S.) 364. 
 
 The court cannot for contempt alone 
 at once compel an attorney to show 
 cause why • he should not be disbarred. 
 Ex parte Grant, 3 Dowl. 324; Ex parte 
 Burger, i Dowl. N. S. 292. 
 
 If, however, he continues in contempt 
 the question may arise as to the propriety 
 of his continuing any longer on the roll. 
 Week's on Attorneys. § 81. See also 
 Withers v. State, 36 Ala. 252. 
 
 Disrespect to the court may amount to 
 gross misbehavior in office, and in such 
 case is good ground for disbarment. Ap- 
 pearing in court armed with deadlyweap 
 ons. Sharon v. Hill, 24 Fed. Rep. 726. 
 
 Assaulting or threatening to 'assault a 
 judge. Beene v. State, 22 Ark. 149; 
 Ex parte Heyfron, 7 Miss. 127; Saxton 
 V. Stowell, II Paige (N. Y.), 526; People 
 V. Green (Colo.), 3 Pac. Rep. 65, 374; 
 Bradley v. Fisher, 13 Wall. (U. S.) 323J 
 Ex parte Y}s\X.-i.OT, U. S. 265. 
 
 But if the offence be committed out of 
 court the offensive language or conduct 
 complained of must have reference to the 
 judge's official acts. Bradley v. Fisher, 
 13 Wall. (U. S.) 323; Jackson v. State,2i 
 Tex. 660. See also Wolfe v. Kirk, 12 
 Fla. 478. 
 
 946 
 
Summary 
 
 ATTORNEY AND CLIENT. 
 
 Jurisdiction. 
 
 Any Breach of the Oath qf Tidelity to 
 the Court is Good Ground for Disbarment. 
 — An attorney who takes as notary and 
 antedates a jurat and acknowledgment 
 of a justice of the peace, and then tries 
 the case before the justice (Nordin v. 
 Arctander, i N. W. Rep. 43); or swears 
 falsely to an affidavit used before the 
 court (In re Houghton (Cal.), 8 Pac. Rep. 
 52); or obtains a change of venue by 
 means of an affidavit forged by him {Ex 
 parte Walls, 64 Md.461), may be disbarred. 
 
 An attorney who, in proceedings upon 
 the probate of a will, takes out a com- 
 mission to examine witnesses, draws up 
 answers to the interrogatories and cross- 
 interrogatories, reads a part of the an- 
 swers before the surrogate and leaves 
 the rest to be repeated by the witness 
 and thus gets the answers before the 
 surrogate as honest testimony, is liable 
 to be disbarred, although the answers 
 were not shown to be false, and it ap- 
 peared the attorney believed them to be 
 true. In re Eldridge, 82 N. Y. 161; s. c, 
 37 Am. Rep. 558. 
 
 Bringing a divorce suit without au- 
 thority, and acting in fraudulent collusion 
 with the husband to procure the divorce 
 wilhout the knowledge or consent of 
 the wife, is good ground for disbarment. 
 Dillon V. State, 6 Tex. 55. 
 
 So for wilfully proceeding in an action 
 not legally commenced. Jerome's Case, 
 Y. B. 20 Hen. VI., fol. 37. 
 
 Forging a writ. Osbaston's Case, 30 
 Eliz. Cro. Car. 74. 
 
 Fraudulently altering a roll. 4 Inst. 
 100. 
 
 Procuring a witness to keep out of the 
 way on trial. Williams v. Hill, i Dowl. 
 N. S. 669. 
 
 Packing a jury. Hanson's Case, Moor, 
 882. 
 
 Hiring straw bail. Clifford v. Porter, 
 5 Dowl. 226. 
 
 Perjury or subornation of perjury. 
 Stephens v. Hill, 10 Mees. & W. 28; 
 State V. Holding, i McCord (S. Car.), 379. 
 
 He may be disbarred for the bribery of 
 a witness. Walker v. State, 4 W. Va. 749. 
 
 Or a false oath taken, or any unprofes- 
 sional statement made without a prior 
 conviction for perjury. Perry v. State, 
 3 Greene (Iowa), 550. See also In re 
 Stewart. L. R. 2 P. C. App. 88. 
 
 Gross Violation of the Confidence of the 
 Client is Good Ground for Disbarment. — 
 In re Martin, 6 Beav. 337. See also Farlin 
 V. Shook (Kan.), I Pac. Rep. 124; Strout 
 V. Proctor. 71 Me. 288; Goodwin v. Gos- 
 nell, 2 Colly C. C. 457. 
 
 An attorney is liable to be struck off 
 the roll if he makes default in the pay- 
 ment of money directed to be paid upon 
 
 summary application. Stephens v. Hill, 
 10 M. & W. 28, 32. 
 
 But to render him liable to the sum- 
 mary jurisdiction of the court, it is re- 
 quisite that the money should be received , 
 by virtue of his professional employment 
 or as a consequence of his professional 
 character. In re Keep, 13 C. P. 283; 
 Anon. 12 C. L. J. 204 ; People v. Apple- 
 ton, 105 111; 474. 
 
 Where a solicitor has been appointed a 
 trustee under a will or other instrument, 
 it is assumed that his professional char- 
 acter has been one of the considerations 
 influencing the appointment, and his 
 wrongful retention of money renders 
 him liable to the penalty in question. 
 In re Chandler, 22 Beav. 253. 
 
 An Attorney may be Suspended or 
 Disbarred for any Matter showing his 
 Unfitness to Practise in the Courts, 
 whether it be a criminal offence or 
 creates a civil liability or not. State v. 
 Winton (Or.), 5 Pac. Rep. 337; Ex pane 
 Wall, 2 Sup. Ct. Rep. 569; s. c, 13 Fed. 
 Rep. 814; Ex parte Cole, i McCrary 
 (U. S.), 405; In re Treadwell (Cal.), 7 
 Pac. Rep. 724. 
 
 Collusion by a husband's attorney 
 with the wife to manufacture deceptive 
 evidence to enable the husband to pro- 
 cure a divorce is professional miscon- 
 duct. In re Gale, 75 N. Y. 526. 
 
 Advertising to procure divorces with- 
 out compliance with the requisites of the 
 law is ground for striking an attorney's; 
 name off the roll. People v. Goodrich, 
 79 111. 148. 
 
 So with advising a breach of trust 
 with design to benefit himself, or as- 
 sistance rendered to his client in a 
 scheme which he knows to be dishonest 
 and fraudulent. Goodwin v, Gosnell, 
 2 Colly C. C. 457; Barnes v. Abby, L. 
 R. 9 Ch. 251. 
 
 An attorney conniving at the violation 
 of the bankrupt law renders himself 
 liable to suspension. If he deceives the 
 court by bringing a collusive suit on a 
 fictitious note to enable a creditor to 
 escape compulsory bankruptcy he may 
 be disbarred. In re Nathaby S. C. Cal. 
 14 Central L. J. 90. 
 
 Taking an unfair advantage of the op- 
 posite party in the absence of his profes- 
 sional adviser (Inre Oliver, 2 Ad. & p. 
 692), or appearing for both plaintiff and 
 defendant in the same action (People v. 
 Spencer, 61 Cal. 128), renders an attor- 
 ney liable to suspension. 
 
 An attorney may be disbarred for aid- 
 ing or abetting a lynching. Ex parte 
 Wall, 107 U. S. 265. 
 
 Erasing the word "not" in a letter 
 from a. judge advising another judge to 
 
 947 
 
Summary Jurisdiction. ATTORNEY AND CLIENT. 
 
 Privileges. 
 
 4. Privileges and Disabilities. — The privileges of counsel consist of 
 their exemption from arrest while attending court eundo, morando, 
 redeundo,^ and their freedom from liability for speaking or writing 
 anything, " however false, defamatory, or malicious may be the 
 ■words, provided the matter was material to the issue or inquiry 
 before the court.'"-* If, however, counsel wantonly depart from 
 
 allow bail for one indicted for murder. 
 Baker v. Corn, lo Bush (Ky.), 592. 
 
 Withholding from his client and his 
 client's administrator money collected by 
 him. People v. Cole, 84 111. 327; Kepler 
 ■V. Klingensmith, 50 Ind. 434; In re 
 Treadwell (Cal.), 7 Pac. Rep. 724; Jef- 
 fries V. Lowrie, 23 Fed. Rep. 786. 
 
 Fraud and deceit practised toward his 
 client or a third party. Slammer v. 
 Wright, 54 Iowa, i64; In re Temple 
 (Minn.), 23 N. W. Rep. 463. 
 
 The institution of proceedings by one 
 attorney from improper motives, and 
 without just grounds, to disbar another 
 is misconduct. In re Kelly, 62 N. Y. 
 ig8. 
 
 On being convicted of felony an at- 
 torney loses his right to practise in court 
 without an order of court removing him. 
 In re Niles, 5 Daly (N. Y.), 465; R. v. 
 Vaughn, i Wils. 22; Ex parte Frost, i 
 Chit. 558. 
 
 Neither pardon for felony nor satisfac- 
 tory settlement with the, injured party 
 affect the court's power to disbar. Pen- 
 obscot Bar V. Kimball, 64 Me. 140; In re 
 Davies, 93 Pa. St. 116. 
 
 Restoration is left to the sound discre- 
 tion of the court. Ex ■parteY\os\.. I Chit. 
 558, n.; People v. Ryalls. 7 Pac. Rep. 290. 
 
 The Practice in England and America 
 is for the court to issue a rule, the attor- 
 ney reciting specifically the charges 
 against him, and requiring him to show 
 cause why he should not be stricken from 
 the roll. Weeks on Attorneys, § 83. 
 
 The particular acts by which the at- 
 torney has violated his duty must be par- 
 ticularly alleged. Reilly v- Cavanaugh, 
 3 Ind. 214; In re Orton, 54 Wis. 379. 
 
 The attorney must have full notice of 
 the application ,by personal service. Ex 
 parte Smith, 28 Mo. 47; Thatchers. Dan- 
 gerfield, 20 Cal. 430; Jones v. Miller, i 
 Swan. 151; In re Peyton, 12 Kan. 390. 
 
 The intervention of a jury is not neces- 
 sary. I Yerg. (Tenn.) 228. 
 
 A court cannot, when renderinga judg- 
 ment of suspension or removal, adjudge 
 the attorney infamous; no such power 
 belongs to any court or any judge. 
 Thatcher v. Dangerfield, 20 Cal. 430. 
 
 Mandamus is the Appropriate Bemedy 
 Jjo ieslore an aitorney disbarred where 
 
 the court below has exceeded its jurisdic- 
 tion. Ex parte Robinson, 19 Wall. 505; 
 Ex parte Garland, 4 Wall. 378; Ex parte 
 Heyfron, 7 How. (Miss.) 127; Withers v. 
 State, 36 Ala. 252; People v. Turner, I 
 Cal. 148; State v. Start, I Iowa, 499; 
 Fletcher v. Dangerfield, 20 Cal. 430; 
 Beene v. State, 22 Ark. 157; Ex parte 
 Bradley, 7 Wall. (U. S.) 364; Bradley v. 
 Fisher, 13 Wall. (U. S.) 354. SeeExparte 
 Secombe, ig How. (U. S.) 13; Ex parte 
 Burr, 9 Wheat. (U. S.) 530; Florida v. 
 Kirke, 12 Fla. 278; White's Case, 6 Mod. 
 18; Leigh's Case, 3 Mod. 335, ; Rice v. 
 Com., 12 Fla. 472; McLaughlin v. Court, 
 5 W. & S. (Pa.) 272. 
 
 Not, however, if the controversy 
 touches a matter of contempt. People v. 
 Turner, i Cal. 143, 188; People v. Jus- 
 tices, I Johns. Cas. (N. Y.) 181; Ex parte 
 Burr, 9 Wheat. (U. S.) 529; Ex parte Se- 
 combe, ig How. (U. S.) 9. 
 
 In Pennsylvania it has been held that 
 as the admission of an attorney is a judi- 
 cial and not a ministerial act, mandamus 
 will not lie. Com. v. Brackenridge, I 
 S. & R. (Pa.) 187. 
 
 That mandamus is improper, and that 
 certiorari in the nature of a writ of error 
 will lie where there is no appeal. Ex 
 parte Briggs, 64 N. Car. 202; In re Ran- 
 dall, II Allen (Mass.), 473. 
 
 That an appeal will lie from an order 
 suspending attorneys. See Winkelman 
 V. People, 50 111. 449; Turner v. Com. 
 2 Mete. (Ky.) 619. See also Weeks on 
 Attys. §§,80, 84. 
 
 In connection with the general subject 
 of disbarment and suspension, see notes 
 to In re Gates, 2 Atl. Rep. 214, and In re 
 Houghton (S. C. Cal.), 8 Pac. Rep. 52, 
 and also 39 U. C. 171. 
 
 1. Weeks on Attys. § 200. 
 
 An attorney returning from a court 
 where he has been attending as advocate 
 to defend certain parties charged with 
 felony is not privileged from arrest for 
 a contempt of another court, that being 
 ot a criminal nature. In re Freston-, Engi, 
 Ch. App. 49 L. T. 290. 
 
 2. Weeks on Attys. §110; Mower v. 
 Watson, II Vt 356- Hastings v. Lusk, 22 
 Wend. (N Y.) 410; Bradley v. 'Heath, 
 12 Pick. (Mass.) 163; Garr v. Selden, 4 
 N. Y. 91; Jennings v. Paine, 4 Wis, 358, 
 
 948 
 
Frivileges. 
 
 ATTORNEY AND CLIENT. 
 
 Disabilities, 
 
 the evidence or point in issue with intent to injure the character 
 of the adverse party or others without propriety or probable 
 ground, he is liable, even though he speak by instruction of the 
 client.^ The degree of invective allowed to counsel and the time 
 during which the argument may continue have generally been 
 considered the subject of judicial regulation.** It is the duty of 
 counsel to confine themselves to the facts in evidence ; and of the 
 court, to check any departure.* An attorney cannot act on both 
 sides; nor change sides in the same suit, though at different trials;* 
 
 1. RoUe's Abr. gi; Wood v. Gunston, were allowed. Butler v. Hobson, 5 Bing, 
 Styles, 462; Weeks on Attys. §110; 
 Hodgson V. Scarlett, i Barn. & CI. 258, 
 
 The privilege is strictly one of counsel 
 in court, although any one is "at liberty 
 to publish a history of the trial — that is, 
 of the facts of the case, and of the law as 
 applied to those facts. He is not at lib- 
 erty to publish observations made by 
 counsel injurious to the character of in- 
 dividuals." Flint V. Pike, 4 Barn. & C. 
 480. See also May v. Williams, 17 Ala. 
 
 23- 
 
 a. State V. Hamilton, 55 Mo. 526; 
 Proffat on Trial by Jury, § 249; Trial of 
 Dean of St. Asalph, 21 How. St. Tr. 847; 
 Weeks on Attys. § 115; Hunt v. State, 
 49 Ga. 255; State v. Collins, 70 N. Car. 
 241; People V. Herndon, 43 Cal. 581; 
 Proffat on Trial by Jury, § 254; People 
 V. Bezy (Cal.) 7 Pac. Rep. 643. 
 
 3. Lloyd v'. Hannibal R. Co , 53 Mo. 
 509; Jack V. Thwealt, 39 Ark. 340. 
 
 It is error to permit counsel to make 
 comments outside of the evidence; but 
 the objection shou-ld be made at the time. 
 Tucker v. Henniker, 41 N. H, 317; 
 Davis V. State, 33 Ga. 98; Yung v. State, 
 65 Ga. 525; Stager v. Harrington, 27 
 Kan. 414. 
 
 But wliere there is conflict of testimony 
 it is not error for the court to permit coun- 
 sel to state to the jury the facts as proved, 
 according to his view of the case. 
 McNabb v. Lockhart. 18 Ga. 495 ; Proffat 
 on Trial by Jury, § 250. 
 
 Counsel ought not, under any circum- 
 stances, to be allowed to make himself a 
 witness (without going upon the stand), 
 and to state facts within his own 
 knowledge touching the case under dis- 
 cussion. Proffat on Trial by Jury, § 
 250; Bell V. People, 14 111. 432. 
 
 But counsel may go on stand as wit- 
 ness for his cliept. Linton v. Com., 46 
 Pa. St. 294; State v. Cook, 23 La. Ann. 
 347; Follansbee v. Walker, 72 Pa. St. 
 230; Whart. on Ev. § 420; Weeks on 
 Attys. § 124. 
 
 Where the cause was conducted by one 
 member of a firm of attorneys, the fees 
 of another member called as a witness 
 
 were allowed. Butler v. Hobson, 
 N. C. 128; I Arn. 424. 
 
 Quare, whether an attorney who calls 
 himself as a witness can now recover hiS' 
 fees, since other parties calling them- 
 selves cannot, Grinnel v. Dennison, 12: 
 Wis. 402 ; Hale v. Merrill, 27 Vt. 738; 
 Nichols V. Brunswick, 3 Cliff. (U. S. C. 
 C.) 88; Parker v. Martin, 3 Pittsb. (Pa.) 
 166; Grub V. Simpson, 6 Heisk. (Tenn.) 
 92; Delcomyn v. Charaberlin, 48 How. 
 Pr. (N. Y.) 409; Stratton v. Upton, 36 N. 
 H. 581. See Howes i-. Barber, 18 Q. B. 
 588. 
 
 It seems a co-defendant who attended 
 solely as a witness may recover. Barry 
 V. McGrade, 14 Minn. 286. 
 
 So if the plaintiff call the defendant. 
 Harvey v. Tebbutt, i J. & W. 197; Good- 
 win w. Smith, 68 Ind. 301; Leeds v. Am- 
 herst, 14 Sim. 357; Young v. English, 7 
 Beav. 10. See Hutchins v. Hutchins, Ir. 
 L. R. (10 Eq.) 453. , 
 
 If an attorney refuse obedience to a 
 subpoena he can be punished for con- 
 tempt as a witness only, and cannot be 
 deprived of his office as attorney. Com. 
 V. Newman, 2 Phila. (Pa.) 262. 
 
 If an attorney bears any other relation 
 to the subject-matter of the suit, e.g., as 
 an agent, auctioneer, etc., the court will 
 not exercise summary jurisdiction over 
 him. Cocks v. Harman, 6 East, 404; 
 Grubb's Case, 5 Taunt. 206; Edwards v. 
 Hodding. 5 Taunt. 815; Toms& Moore's 
 Case, 3 Ch. Cham. 41. See Dickson v. 
 Wilkinson, 4 De G. & J. 508; Carroll's 
 Case, 2 Ch. Cham. 323; Allen z/.Aldridge, 
 5 Beav. 401; Rawes v. Rawes, 7 Sim. 
 624; Weeks on Attys. §§ 77,, 94; Smith 
 V. McLendon, 59 Ga. 523; Pennock v. 
 Fuller, 41 Mich. 153; 17 Am. Law Reg. 
 (N. S.) 759 and note. 
 
 An attorney who is a party to a suit is 
 entitled to recover his costs. Gugy v. 
 Brown, L. R. (i P. C.) 411, reversing s. 
 c, II Low. Can. 409; Jervis v. Dewes, 4 
 Dowl. P. C. 764. 
 
 He can recover nothing for loss of 
 time. Pritchard v. Walker, 3 C. & P. 
 212. 
 
 4. W.eeks on Attys. § 120 ; Anon., 7 
 
 949 
 
FriTileges. 
 
 ATTORNEY AND CLIENT. 
 
 Sisaliilities. 
 
 . or receive fees of two adversaries in the same cause. '^ But where 
 an attorney has, in the course of other business, obtained a knowl- 
 edge of matters connected with the suit in question, he will not 
 on that account, in general, be restrained from acting against the 
 party through whose business he obtained such knowledge.* 
 
 He cannot act as a special master to execute a decree in a cause 
 in which he is engaged, nor make a writ ind indorse his name 
 upon it^ as attorney for the plaintiff, and also sign it as justice of 
 the peace,* nor act in any other capacity inconsistent with his 
 position as attorney for one of the parties litigant.' An attorney 
 cannot become bail or security in a cause in which he is engaged, 
 nor even in any cause pending in a court of which he is attorney.* 
 It is a contempt to do so in violation of a rule of court.' . An 
 attorney cannot purchase a chose inaction.** The rule extends 
 to purchases at judicial sales under the direction of an officer of 
 the court.® The rule applies to suits in equity as well as to suits 
 at law.*" The rule, however, is not intended to prevent a pur- 
 chase for the purpose of protecting some other important right of 
 the assignee.^* Notwithstanding such statute, an attorney has a 
 right to purchase judgments for the purpose of issuing executions 
 and collecting debts. The policy of the law does embrace such 
 
 Mod. 47; Mason's Case, i Freem. 74; 
 Herick©. Colby, 30 How. Pr. (N. Y.)2o8; 
 People V. Spencer, 61 Cal. 128. 
 
 1. Herick v. Colby, 30 How. Pr. (N. 
 Y.) 208; People V. Spencer, 61 Cal. 128. 
 
 2. Com. V. Gibbs, 4 Gray (Mass.), 146. 
 
 3. White V. Haffaker, 27 111. 349; 
 Spinks w. Davis, 32 Miss. 152. 
 
 4. Ingraham v. Leland, ig Vt. 304. 
 
 5. Weeks on Attys., §122. 
 
 6. The rule that an attorney cannot 
 become bail has been generally recognized 
 in England since 1654, and obtains with 
 some variations extensively in America. 
 Mann v. Nottage, l Younge & J. 367, a; 
 Costie V. Watson, 15 Johns. 535; Craig v. 
 Scott, I Wend. 35; Love v. Sheffelm, 7 
 Fla. 40; Gilbank v. Stephenson, 30 Wis. 
 135; Massie v. Mann, 17 Iowa. 131; 
 Hoffman v. Rowley, 13 Abb. Pr. (N. Y.) 
 3^' Dillon V. Watkins. 2 Spear (S. Car.), 
 445; Miles v. Clarke, 4 Bosw. (N. Y.) 
 632. Contra, Abbott v. Zeigier, g Ind. 
 
 511. 
 
 In order that the rule may apply, the 
 attorney must be in practice. King v. 
 Sheriff 2 East, 182. 
 
 While the disqualification is general, 
 an attorney is sometimes allowed to be- 
 come security for costs. Walker v. 
 Holmes, 22 Wend. (N. Y.) 614. 
 
 And such is the general rule in chan- 
 cery, and the disability is limited to bail 
 for appearance of the ^party arrested. 
 Walker z/. Holmes, 22 Wend. 614; Weeks 
 on Attys., § 119. 
 
 If an attorney at law indorses a writ 
 in favor of a resident of another State, he 
 cannot set up in defence to a scire facias 
 to enforce a judgment for costs awarded 
 against such party that in so doing he 
 violated a rule of the court prohibiting an 
 attorney from becoming bail or surety in 
 any civil suit or proceeding in which he 
 is employed as such attorney. Morrill v. 
 Lamson, 138 Mass. 115. 
 
 7. Love V. Sheffejin, 7 Fla. 40 et seq. 
 
 8. Brotherson v. Consalus, 26 How. 
 Pr. (N. Y.) 213; Warren v. Paine. 3 
 Barb.Ch. (N.Y.)2I3; Mann v. Fairchild, 
 3 Abb. App. (N. Y.) 152. 
 
 In some States it has been made a 
 criminal offence for an attorney to buy 
 any chose in action with intent to bring 
 suit thereon. Brotherson v. Consalus, 
 26 How. Pr. (N. Y.) 213; Warren v. 
 Paine, 3 Barb. Ch. (N. Y.) 213; Mann v. 
 Fairchild, 3 Abb. App. (N. Y.) 152. 
 
 The Illegality constitutes the offence; 
 and this being shown, it lies upon the de- 
 fendant to show that he is within an ex- 
 ception or proviso in the statute. People 
 V. Coalbridge, 3 Wend. (N.Y.) 120. See 
 also Hall v. Bartlett, 9 Barb. (N. Y.) 297. 
 
 The rule does not exist in Louisiana. 
 McMicken v. Perrin, 18 How. (U. S.) 
 507. 
 
 9. Manii v. Fairchild, 3 Abb. App. 
 Dec. (N. Y.) 152. 
 
 10. Cases cited supra. 
 
 11. Van Rensselaer v. Sheriff, I Cow. 
 (N. Y.) 443- 
 
 950 
 
liability to 
 
 ATTORNEY AND CLIENT. 
 
 Third FartieB, 
 
 acts.i The disability continues as long as the reason for it 
 ■exists.'"* 
 
 5. Liability to Third Parties. — An attorney is liable for costs when 
 incurred through his owngross negligence, ignorance, or misbe- 
 havior ;3 he is liable for the costs of a sham plea,* for having 
 scandalous or impertinent matter expunged from a pleading,^ or 
 where he expressly undertakes to pay them.* In some States the 
 indorsement of the writ renders the attorney liable if the princi- 
 pal is out of the State or unable to pay.'' Attorneys are gene- 
 rally liable on their undertakings, whether in reference to costs or 
 any other matter,* for acts done in excess of authority,® and it is 
 
 to the officer for his fees for the service 
 of writs delivered by him to such officer, 
 although he is neither the plaintiff nor a 
 party in interest; lilcewise to the clerk of 
 courts for his fees on writs delivered by 
 him to such clerk for entry. And neither 
 the officer nor the clerk is required to 
 perform the services without a prepay- 
 ment of their respective fees. Tilton v. 
 Wright, 74 Me. 214; s. c, 43 Am. Rep. 
 578. 
 
 7. Robbins v. Hill, 12 Pick. (Mass.) 
 569; Harnut j/. Watson, 8 Greenl. (Me.) 27. 
 
 Attorneys, signing their names upon a 
 writ under a direction to the officer as 
 follows: "Mr. officer, attach hay," do 
 not thereby become indorsers of the writ 
 and liable for costs. Nor do they be- 
 come indorsers of the writ by erasing the 
 word "hay" and allowing their signa- 
 tures to remain after giving verbal direc- 
 tions to the officer how to serve it. Gil- 
 more V. Crosby, 76 Me. 599. 
 
 8. Weeks on Attys. § 130; Burrill v. 
 Jones, 3 Barn. & A. 49; Appleton v. 
 Binks, 5 East, 148. 
 
 Where an attorney signs a voluntary 
 recognizance he cannot avoid judgment 
 on the ground that there is a rule of 
 court or a statute prohibiting him from 
 becoming so bound. Sherman v. State, 
 4 Kan. 570; Wallace v. Scales, 6 Ohio, 
 429; Jack v. People, 19 111. 58; Hicks v. 
 Chouteau, '12 Mo. 342. 
 
 As to implied undertakings, see Grace 
 V. Wittington, 2 Barn. & Ch. ir. See 
 also Summary Jurisdiction of Courts 
 OVER Attorneys, ante, p. 944. 
 
 9. "Under some circumstances, if an 
 attorney acts bona fide under a general 
 authority, a. particular authority will be 
 presumed. Thus an attorney acting for 
 a mortgagee whose money he had him- 
 self invested was held justified in taking 
 proceedings to recover it without any ex- 
 press authority for the purpose, on dis- 
 covering that the security was bad." 
 Rowles V. Senior, 8 Q. B. 677; Weeks 
 on Attys., §§ 237, 239. 
 
 1. Warren v. Paine, 3 Barb. Ch. (N. 
 Y.) 630. 
 
 2. Hall V. Good, 7 Hill (N. Y.), 586. 
 
 3. White V. Washington, i Barnes, 
 302; Glynn v. Kirby. i Strange, 402; 
 Weeks on Attys., § 128; Ex parte Rob- 
 tins, 63 N. Car. 309; Cashing z/. Brown, 
 ■6 Paige (N. Y.), 539. 
 
 4. Even though instructed by his client 
 to so plead. Vincent v. Groome, I Chit. 
 182; Johnston v. Alston, i Camp. 176. 
 
 5. McVey v. Cantrel, 8 Hun (N. Y.), 
 .522; Weeks on Attys. § 233. 
 
 6. In such case he is bound although 
 his client dies before the time for putting 
 in bail arrives. Hilling v. Jones, 3 Bing. 
 70; Ex parte Hughes, 5 Barn. & A. 482. 
 
 When one is made lessor in ejectment 
 ■without his authority the plaintiff's attor- 
 ney and not he is liable for the costs. 
 People V. Bradt, 6 Johns. (N. Y.) 318. 
 
 ' An attorney has been held liable to the 
 sheriff for fees on process delivered to 
 him for execution. Towle v. Hatch; 43 
 N. H. 270; Kirkbeck v. Stafford. 23 How. 
 -(U. S ) 236; Sargeant v. Pettibone, i 
 Aiken, 355. 
 
 But he is not liable for witness fees 
 •unless upon a special promise to pay 
 ■them. Weeks on Attys.. 232. 
 
 In some States an attorney who insti- 
 tutes a suit for a non-resident is liable 
 ■for costs unless he recover; or even if he 
 recover, and there is a return of no prop- 
 erty to the execution. Ross v. Harvey, 
 32 Ga. 388; Jones v. Savage, 10 Wend. 
 <N. Y.) 621. 
 
 Where an attorney is beneficially in- 
 terested in the event of the suit by virtue 
 of an agreement by which he is to have 
 ■a portion of the recovery as a compensa- 
 tion for his services, he is liable for the 
 -defendant's costs the same as the plain-, 
 tiff. Voorhies v. McCartney, 51 N. Y. 
 
 387. 
 
 The decisions upon liabilities for costs 
 are by no means harmonious. Weeks 
 -on Attys. § 128. 
 
 In Maine an attorney at law is liable 
 
 951 
 
Setainer and 
 
 ATTORNEY AND CLIENT. 
 
 Appearance^ 
 
 incumbent upon the attorney to determine whether his instruc- 
 tions are genuine and authentic.^ If he maliciously procure an 
 unauthorized order of attachment,'-* an unlawful and malicious 
 arrest' upon a claim which he knows to be unfounded, or procure 
 a judicial officer to act beyond the scope of his jurisdiction, he is. 
 liable in an action for damages.* 
 
 6. Retainer and Appearance. — " Retainer is the act of a client by 
 which he engages a lawyer or counsellor to manage his cause. "^' 
 The entry of appearance by an attorney is prima-facie evidence 
 of his authority to appear.® Parties who appear for themselves 
 may appoint attorneys at any stage of the proceedings.' The- 
 appointment of an attorney is a strictly personal act, and cannot 
 usually be made by deputy or be assumed from the mere relation 
 of the parties.** A verbal retainer is sufficient to support a judg- 
 
 1. Jamaine v. Hooper, 13 Law Jour. 
 (N. S. C. P.) 63; People v. Montgomery, 
 18 Wend. (N. Y.) 633. 
 
 2. Wood V. Wier, 5 B. Mon. (Ky.) 544. 
 And so is client. 
 
 3. Stockley v. Hornidge,8 Car. & P. 16. 
 
 No such action will lie unless the dec- 
 laration charges the attorney with acting 
 maliciously. Lynch v. Com., 16 S. & R. 
 (Pa.) 368. 
 
 Nor is an attorney responsible for an 
 illegal arrest or levy under a regular writ 
 unless he has actual knowledge ai the 
 illegality. Stowell v. Champion, 6 Ad. 
 & E. 407; Stokes V. White, i Cromp. M. 
 & R. 223. 
 
 4. Revill v., Pettit, 3 Met. (Ky.) 314; 
 Williams v. Smith, 14 C. B. (N. S.) 596. 
 
 Malice must be averred and proved. 
 Hunt V. Printup, 28 Ga. 297. 
 
 5. 2 Bouv. Law Diet. 200; Foulks v. 
 Falls, 91 Ind. 315. 
 
 A writing acknowledging the receipt of 
 a claim " for collection" is a contract to 
 collect, and if given by one not an at- 
 torney, who at the time represents him- 
 ' self as such, it imposes on him the duty 
 and liability of an attorney. Foulks v. 
 Falls, 91 Ind. 315. 
 
 Except where there is a special under- 
 standing to the contrary, the employment 
 of one member of a legal firm is the em- 
 ployment of all, and the client is entitled, 
 whether he specially consults all or not, 
 to have the benefit of their united skill and 
 judgment in the management of his busi- 
 ness. Smith V. Brittenham, 109 111. 540. 
 
 6. Weeks on Attys. § 326. 
 
 An attorney's license is prima-facie 
 evidence of his authority to appear for 
 any person whom he professes to repre- 
 sent. Weeks on Attys. § 342. 
 
 It is not necessary to show the au- 
 thority till called for. Bank v. Fellows, 
 28 N.'H. 302. 
 
 After pleading and issue joined, it is 
 said to be too late to require the plaintiff 
 to file his warrant. Campbell v. Gal- 
 breath, 5 Watts (Pa.), 423. 
 
 The burden- of proof rests upon him 
 who denied the authority. Weeks on 
 Attys. § 344. • 
 
 The acceptance of service of process 
 by an attorney of record, on behalf of his 
 client, will, in the absence of proof to the 
 contrary, be presumed to be authorized. 
 Dobbins v. Dupree, 39 Ga. 394. 
 
 Although an authority will be pre- 
 sumed, when an attorney appears for a 
 defendant not served with process, yet if 
 the defendant prove he had no authority, 
 his rights cannot be affected by the at- 
 torney's acts. Denton v. Noyes, 6 Johns. 
 (N. Y.) 296; Frye z/. Calhoun, 14 III. 132; 
 Legere v. Richard, 10 La. Ann. 669; Han- 
 dely V. Statelor, 6 Litt. (Ky.) 186; Hess v. 
 Cole, 23 N. J. L. 116; Kepleye/. Irwin, 14. 
 Neb. 300; Anderson v. Hawke, 115 111. 33. 
 
 But the right of an attorney to enter an 
 appearance for a party in an action can 
 be called in question only by the party 
 himself. Baldwin v. Foss, 14 Neb.. 
 45S. 
 
 7. Kerresin y.Wallingborough, 5 Dowl. 
 565. 
 
 8. Weeks on Attys. § 327. 
 
 An attorney cannot appear for the 
 tenant in possession in ejectment by or- 
 der of the landlord. Doe d. Cooke v. Roe, 
 I Barnes, 39. 
 
 One executor cannot authorize an at- 
 torney to defend the other. Williams on 
 Executors (6th Am. Ed.), 756, 1514. 
 
 One partner has no implied auihority^ 
 to retain an attorney to appear and de- 
 fend the firm. Hambridgew. DelaCrouse, 
 10 Jur. 1096; 8 L. T. 163. See McCulloch 
 V. Guetner, i Binn. (Pa.) 214. 
 
 But a.contrary rule appears to prevail 
 as to suing a debtor of the firm. Harrison- 
 
 952 
 
Betainer and 
 
 ATTORNEY AND CLIENT. 
 
 Appearance. 
 
 merit, even in the case of a corporation, and although the cor- 
 poration may be required to make the appointment under seal.^ 
 The retainer may be inferred -^ and whether express or implied,, 
 the authority granted by it is determined by the death of the 
 client.' The attorney, though an ofificer of the court, cannot 
 generally in civil cases be compelled to appear or act for any one 
 unless he has accepted a retainer.* If he has doneithis he may be 
 compelled to appear. at the risk of an attachment, or even of being 
 stricken from the roll.^ After having once entered an appear- 
 ance, an attorney is not at liberty to strike it out without leave 
 of court." 
 
 Retainer in one action does not entitle an attorney de facto to 
 defend a cross-action ;'' nor is a retainer in any action sufficient to 
 authorize any proceedings which incidentally arise out of it.** A 
 retainer implies a promise to pay all costs properly incurred upon 
 the retainer.* Appearance by attorney is as effectual for purposes 
 of jurisdiction as an actual service of summons. A record show- 
 ing such appearance will bind the party until want of authority is 
 shoyvn.^" 
 
 7j. Jackson, 7 T. R. 207; CoUett v. Hub- 
 bard, 2 P. Corp. 94. 
 
 A co-defendant may employ an at- 
 torney for other co-defendants, and the 
 appearance by such an artorney for all 
 will bind all, and in the absence of proof 
 to the contrary an attorney appearingfor 
 an infant plaintiff will be presumed to 
 have been employed by the plaintiff's 
 cu irdlan or next friend. Hilliard v. Carr, 
 < \la. 557; Abbott V. Button, 44 Vt. 546. 
 
 J.. Ford V. Killett, 2 Mylne & K. i; 
 Reg. V. Litchfield, 16 Law T. N. S. 333; 
 Arnold v. Mayor. 5 Scott N. S. 741; 12 
 Law J. N. S. C. B. 97. 
 
 Em ployment by the president of a bank 
 is sufficient retainer by the bank. Am. 
 Ins. Co. V. Oakley, 9 Paiije (N.Y.), 496; 
 Weeks on Attys. § 328; Osborn v. Bank 
 of U. S., 9 Wheat. (U. S.) 738. 
 
 While the retainer need not be in writ- 
 ing, yet if the attorney neglects to take 
 the precaution, and his retainer is after- 
 wards questioned, he may be compelled to 
 bear the costs of the risk he thus under- 
 takes. Wiggins V. Peppin, z Beav. 403. 
 
 2. Lee v. Jones, 2 Camp. 496; May v. 
 Wainman, 7 Moore, 467; Hall v. Laver, 
 I Hare, 571; Cooper v. Moss & Hamil- 
 ton, 52 111. 119; Tabram v. Horn, i Man. 
 & R. 228. 
 
 3. Whitehead v. Lord, 21 Law J. Ex. 
 239. 
 
 4. Salk 87, pi. 4. 
 
 5. Moulds. Roberts, 4 Dowl. & R. 719; 
 Burnfield v. James, 2 Barnes, 232, Wigg 
 V. Rnok, 6 Mod. 86. 
 
 Provided it would appear that the un- 
 dertaking is in writing and signed by 
 the attorney Anon., Loft. 192. 
 
 953 
 
 6. Hillings v. Jones, 3 Bing. 70; Par- 
 meter V. Reed, i W. W. & H. (Eng.) 575. 
 
 7. V. Lewis, Law J. Ex. 212; 
 
 Parmeter v. Reed, i W. W. & H. 575. 
 
 8. Noble V. Bank, 3 Marsh. (Ky.) 263; 
 Spencer v. Newton, 6 Ad. & E. 630. 
 
 9. Bolden v. Nicholay, 3 Jur. U. S. 
 884. 
 
 Two attorneys retained together, not 
 being partners, are supposed to be entitled 
 to compensation in equal shares, irrespec- 
 tive of the amount of work performed by 
 each. Robinson v. Anderson, 7 De Gex, 
 M. & G. 239; Henry z/.Bassett, 75 Mo. 89. 
 
 A proposed mortgagee's solicitor has 
 no claim for his charges against the pro- 
 posed mortgagor where the negotiation 
 for the mortgage goes off through the 
 fault of the latter; he must look 10 the 
 person who retains him, leaving him to 
 his remedy against the party who oc- 
 casioned the fruitless expenses. Wilkin- 
 son V. Grant, 18 Com. Bench. 319; 25 
 Law J. C. P. 233. 
 
 10. Weeks on Attys. §g 197-199; Ham- 
 ilton V. Wright. 37 N. Y. 502; Republic 
 of Mexico V. De Arangoiz, 5 Duer(N.Y.), 
 643; Jackson v. Stewart, 6 Johns.(N. Y.) 
 33. Contra, Robson v. Eaton, i Term 
 Rep. 62. 
 
 "The practice of the English courts 
 now seems to be not to consider the act 
 of an attorney conclusively binding un- 
 less "he is employed by the person for 
 whom he appears; and the decisions of 
 the courts of the United States have 
 generally been in accord with that prac- 
 tice." Weeks, on Attys. § 198; Denton 
 V. Noyes, 6 Johns. (N.Y.) 298; Critchfield 
 V. Porter, 3 Ohio 518; 11 111. 488; Frye 
 
Fowers Implied 
 
 ATTORNEY AND CLIENT. 
 
 by Betainer. 
 
 7. Powers Implied by Betaiuer. — " An attorney at law has author- 
 ity, by virtue of his employment as such, to do on behalf of his 
 chent all acts, in or out of court, necessary or incidental to the 
 prosecution or management of the suit, and which affect the 
 remedy only, and not the cause of action. "^ This includes 
 
 ity by virtue of his appointment to enter 
 the appearance of the defendant or to 
 waive any of his rights, and he is pre- 
 sumed to act only on that appointment 
 in the absence of any showing of authority 
 from the defendant. Bush v. Visant, 40 
 Ark. 124. See also Robinson v. Murphy, 
 69 Ala. 543. 
 
 A rehearing cannot be granted in 
 equity on account of the bad advice of 
 counsel. Warner v. Warner, 4 Stew. 
 Eq. (N. J.) 549; Smith v. Patton, 12 W. 
 Va. 541; Shricker v. Field, 9 Iowa, 372; 
 Winchester v. Grosvenor, 48 111. 517; 
 Dickerson v. Comrs., 6 Ind. 128; Hay- 
 den V. Moore, 4 Bush (Ky.), 107. 
 
 Or his error or mistake as to the perti- 
 nence or force of evidence. Baker w. 
 Whiting, I Story C. C. 218; Jenkins v. 
 Eldridge, 3 Story, C. C. 316; Lyon v. 
 Boiling, 14 Ala. 754; Kelley v. Mc- 
 Kinney, 5 Lea (Ky.), 164; Jamison v. 
 My, 8 Ark. 600. 
 
 Or as to the admissibility of evidence. 
 Robinson v. Sampson, 26 Me. 11. 
 
 Or abandonment of the defence after 
 hearing complainant's argument. De 
 Carters v. La Farge, 1 Paige (N. Y), 574; 
 Winchester v. Grosvenor. 48 111. 517. 
 
 Or mismanagement of the (lefence by 
 reason of counsel's delicate position in 
 appearing at the same time for a co- 
 litigant who might be injuriously affected 
 by the establishraentof the defence. Car- 
 michael v. Snodgrass, 6 Lea (Tenn.), 184. 
 
 Or that the party who was his own so-, 
 licitor was compelled to go to another 
 court. Whitmans. Brotherton, 2 Term. 
 Ch. 393. 
 
 Or was too sick to attend that term. 
 Lester v. Hoskins, 26 Ark. 63. 
 
 Or had ceased to attend that court, 
 and employed other attorneys to take 
 charge of the case, who did not under- 
 stand the defence, and permitted judg- 
 ment to go against defendant without his 
 knowledge. Chester v. Apperson, 4 
 Heisk. CTenn.) 639. 
 
 Or that the counsel originally employed 
 died, and the counsel who succeeded 
 him was not familiar with the case. 
 Powell v. Stewart, 17 Ark. 719. 
 
 Or that the attorney could not appear 
 on account of his illness. Mock v. Cun- 
 diff. 6 Port. (Ala.) 24. 
 
 Or that the counsel retained had not 
 only not appeared to defend the suit, 
 but had appeared for the other party. 
 
 V. Calhoun Co., 14 111. 132; Walworth v. 
 Henderson, 9 La. Ann. 339. 
 
 Especially will the plaintiff be relieved 
 and proceedings set aside or stayed 
 when it appears that the attorney is in- 
 solvent. Campbell v. Bristol, 19 Wend.. 
 (N. Y.) loi; Meyer v. Littel, 2 Pa. 177. 
 
 Where it appears that process was is- 
 sued by an attorney without authority, 
 such process may be set aside on motion 
 of the opposite party. Frye v. Calhoun, 
 14 111. 132. 
 
 Or the court will stay proceedings and 
 order the attorney to pay costs. Hub- 
 bart V. Phillips, 2 Dowl & L. 707; Ham- 
 mond V. Thorpe,! Cromp. M. & R.64. 
 
 To such rule the plaintiff should be 
 made a party. Weeks on Attys. § 345. 
 
 " If, in defraud of the rights of a bona- 
 fide party, two nominal parties to n. suit 
 procure a judgment to be entered by 
 means of an unauthorized appearance, 
 such judgment may be impeached col- 
 laterally, so far as concerns any persons 
 tainted with knowledge or bound to in- 
 quire into the fraud." Wharton on 
 Agency, § 566; Weeks on Attys. § 198; 
 Beekley v. Newcomb, 24 N. H. 359; 
 Hayes v. Shattuck, 21 Cal. 51; DaUon v. 
 Dalton, 33 Ga. 243; Tally w. Reynolds, 
 I Ark. 99; Williams v. Butler, 35 111.- 544. 
 
 Want of authority must be shown by 
 special plea. NultielrecorA is improper. 
 Hill V. Mendenhall, 21 Wall. (U. S.) 453. 
 
 The authority of an attorney will not 
 be questioned at the instance of a stranger 
 to the record. Bryan v. Taylor, Wright 
 (Ohio), 245. 
 
 1. C. J. Gray, Moulton v. Bowker, 115 
 Mass 40. 
 
 An attorney cannot, under his general 
 authority, accept service for his client of 
 the original process by which the action 
 is begun, i Wait's A. & D., 439; Bagley 
 V. Buckland, I Exch. (W. H. & G ) i ; 
 Masterson v. LeCIaire, 4 Minn. 108; Starr 
 V. Hall, 87 N. Car. 381; Reed v. Reed, 
 ig S. Car. 548. 
 
 For by such service the jurisdiction of 
 the court over the client is established, 
 and until that be done the relation of at- 
 torney and client cannot begin, i Wait's 
 A. & D. 439: Bagley v. Buckland, i 
 Exch. (W. H. & G.) i: Masterson v. Le 
 Claire, 4 Minn. 108; Starr z/. Hall. 87 N. 
 Car. 381; Reed v. Reed, 19 S. Car. 548. 
 
 An attorney ad litem tor a defendant 
 constructively summoned has no author- 
 
 954 
 
Powers Implied 
 
 ATTORNEY AND CLIENT. 
 
 by Betainer. 
 
 the right to demand and receive payment in money of the client's 
 debts ; and part payments are within his power to receive as 
 well as payments in full.^ As long as he appears as attor- 
 ney on record, bona-fide payments to him discharge the debt, 
 no matter what private instructions he may have received from 
 his client.'"-* He may also sue out an alias execution ;3 may 
 receive livery of seizin of land taken under an extent ;* may 
 waive objections to evidence and enter into stipulations for the 
 admission of facts or conduct of the trial,** and for release of 
 bail ;* may waive notices, and give extensions of time to file papers 
 and confess judgment;'' and may open a default which he has 
 taken (whether improperly or not) and vacate the judgment en- 
 tirely, even though (it has been held) his client has instructed 
 him to the contrary.** An attorney of record has power to agree, 
 during the' pendencfy of the suit, that after judgment the execu- 
 
 where only a general retainer to attend to 
 all of defendant's business. was proved. 
 Watts V. Gayle, 20 Ala. 817. 
 
 There can be no rehearing of a decree 
 made by consent of counsel, although 
 made without the party's consent. Har- 
 rison V. Rumsey, 2 Ves., Sr. 488; Brad- 
 ish V. Gex, Amb. 229; Butterworth v. 
 Claphani, i J. & W. 653; Giffordz'.Thorn, 
 I Stock. (N. J.) 724; Coster v. Clark, 3 
 Edw. th. (N. Y.) 405; Jones v. William- 
 son, 5 Coldw. (Tenn ) 371; Lawson v. 
 Bettison, 7 Ark. 401. See Furnivale v. 
 Bogle, 4 Russ. 142. 
 
 1. Ducett V. Cunningham, 39 Me. 386; 
 Branch v. Burnley, i Call. (Va.) 127; 
 Brackett v. Norton, 4 Conn. 517; Lang- 
 don v: Potter, 13 Mass. 320; Miller v. 
 Scott, 21 Ark. 396; Wharton on Agency, 
 §580. 
 
 Where a. writ of ad quod damnum to 
 condemn a water right is resisted upon the 
 ground that the same will injure a mill 
 already in course of erection, and an 
 order of condemnation is rendered con- 
 ditioned upon the payment within a year 
 of damages found to accrue to the de- 
 fendant, the attorney of the defendant in 
 the proceedings cannot, by virtue of his 
 general employment as such, bind his 
 client by receiving s^ch damages. Test 
 V. Larsh, 98 Ind. 34. 
 
 The payment must, under any circum- 
 stances, be in good faith. Chalfants v. 
 Martin, 25 W. Va. 394. 
 
 %. Slate V. Hawkins, 28 Me. 366. 
 
 3. Cheever v. Merrick, 2 N. H. 376. 
 
 4. Pratt V. Putnam, 13 Mass. 363. 
 
 5. Alton V. Gilmanton, 2 N. H. 520. 
 Admissions bind the client when made 
 
 with a view to obviating the necessity of 
 proving the fact admitted. Young v. 
 Wright, I Camp. 140. 
 
 Written admissions made for the pur- 
 
 pose of a former trial may be used on a 
 new one. Elton v. Larkins, 5 Car. & P. 
 285; I Moody & R. 196. 
 
 In the absence of fraud or gross mis- 
 take a client is concluded by a^dmissions 
 of his attorney in cases in which, on the 
 faith of such ad missions, reciprocal admis- 
 sions have been made on the other side. 
 Wharton on Ev. § 1184; Stevens Ev. 
 art. 17; Wilson v. Spring, 64 111. 18; 
 Smith V. Milliken, 2 Minn. 319; Wharton 
 on Agency, § 585. 
 
 Non-contraclual admissions of the at- 
 torney, not accepted as part of the mut- 
 ual arrangements for the trial of the case, 
 are privia-facie evidence only. They re- 
 lieve, at the first instance, th,e opposing 
 party from the burden of proving that 
 which they admit, supposing the author- 
 ity of the attorney to be first proved. 
 Young V. Wright, i Camp. 141; Floyd v. 
 Hamilton, 33 Ala. 235; Moulton v. 
 Bowker, 115 Mass. 36; Bathgate z/. Ras- 
 kin, 59 N. Y. 533; Cassels v. Usry, 51 
 Ga. 621; People v. Garcia, 25 Cal. 531; 
 Truby v. Seybert, 12 Pa. St. 101. 
 
 Admissions made after the case has 
 been tried and the employment ended are 
 not binding. Walden v. Bolton, 55 Mo. 
 405. 
 
 In criminal matters admissions are not 
 admissible unless made at the trial by 
 the defendant or his counsel. Rex v. 
 Thornhill, 8 Car. & P. 575. 
 
 6. Hughes V. HoUingsworth, i Murph. 
 (Tenn.) 146. 
 
 7. Pike V. Emerson, 5 N. H. 393; 
 Talot o. McGee, 4 Monr. 377; Bank v. 
 Geary, 5 Pet. (U. S.) 99; Thompson v. 
 Pershing, 86 Ind. 304. 
 
 8. On the theory that the client has no 
 right to interfere with the attorney in the 
 due and orderly conduct of the suit, and 
 certainly caflnot claim to retain a. judg- 
 
 9S5 
 
Powers Implied 
 
 ATTORNEY AND CLIENT 
 
 by Betainer,. 
 
 tion shall be postponed,* put off a trial,'-* discontinue an action^ 
 or, after judgment rendered, give a stipulation allowing an exten- 
 sion of the time to perfect an appeal.' An attorney intrusted 
 with a note for collection by suit is authorized to sue out the 
 process of attachment, and his client is liable for the actual dam- 
 age if the process is wrongfully sued out, although he may have 
 instructed his attorney to use proper means only.* An attorney 
 cannot destroy his client's cause of action by making a stipula- 
 tion not to appeal or seek a new trial, ^ or by compromising the- 
 suit ;® he may, however, submit the cause to arbitration, for this- 
 
 ment obtained and an execution issued 
 fraudulently. Read v. French, 28 N. Y. 
 293; Weeks on Attys. § 212. 
 
 1. Wieland v. White, log Mass. 392; 
 Union Bank v. Georgetown, 5 Pet. (U. 
 S.) 99. 
 
 2. Shaw V. Kidder, 2 How. Pr. (N. Y.) 
 244. 
 
 3. Hoffenberth v. Muller, 12 Abb. Pr. 
 N. S. (N. Y.) 222. 
 
 4. Kirkley v. Jones, 7 Ala. 622; Meyer 
 V. Sage, 65 Iowa, 606. 
 
 The power of an attorney to sue upon 
 a bill of exchange itnpliea a power to col- 
 lect or receive the proceeds, and instruc- 
 tions restricting this power to taking 
 judgment are not admissible in evidence 
 unless they are shown to have been 
 brought to the knowledge of the payor 
 before payment. Planters' Bank v. 
 Massey, 2 Heisk. (Tenn.) 360; Weeks 
 on Attys. § 379. 
 
 An attorney has implied authority to 
 indorse the name of his client on a check 
 received in the course of litigation, for 
 the purpose of collecting it. Chatham 
 Nat. Bank v. Hochstater, 18 N. Y. Daily 
 Reg. 848. 
 
 5. Pedple v. Mayor, 11 Abb. Pr. (N. 
 Y.) 66; Bates v. Voorhies, 20 N. Y. 525, 
 
 6. Such is the rule in the United States. 
 Maye v. Cogdell, 69 N. Car. 93; Siokeley 
 V. Robinson, 34 Pa. St. 318; Albre v. 
 Read, 6 McLean (U. S.), 106; Holker v. 
 Parker, 7 Cranch (U. S.), 436; Spears v. 
 Ledergerber, 56 Mo. 465; Adams v. Rol- 
 ler, 35 Tex. 711; Barrett v. Third Avenue 
 R. Co., 45 N. Y. 628, 638; Lewis v. 
 Gamage, i Pick. (Mass.) 347; Derwort v. 
 Loomer, 21 Conn. 245; Davidson v. 
 Rozier, 23 Mo. 387; Filby v. Miller, 25 
 Pa. St. 264; Vail v. Jackson, 13 Vt. 314; 
 Grangers. Batchelder, 54 Vt. 248; s. c, 
 41 Am. Rep. 846; Wald^n v. Bolton, 55 
 Mo. 408; Houseniek v. Miller, 93 Pa. 
 St. 514; Whitehall Township v. Keller, 
 100 Pa. St.; s. c, 45 Am. Rep. 361; 
 Mackey's Heirs v. Adair, 99 Pa. St. 
 143; Robinson v. Murphy, 6^ Ala. 543; 
 Chaffey v. Dexter (Cal.), 14 Pac. Rep. 980. 
 
 But every reasonable presumption will, 
 ■be indulged in favor of a settlement made 
 by an attorney duly employed, especially 
 after it has been recognized by a court 
 and a judgraenj: thereon has been ren- 
 dered. Williams v. Nolan,' 58 Tex. 708. 
 
 Where an attorney at law does com- 
 promise and settle his client's claim, with- 
 out any authority from his client, and in 
 such settlement the attorney receives 
 from the adverse party a consideration 
 which is much less than the client's de- 
 mand, the client may ignore such com- 
 promise and settlement, and treat the 
 same as a nullity, and recover the full 
 amount of his demand from the adverse 
 party. Jones v. Innes, 32 Kan. 177. 
 
 A compromise acquiesced in for years 
 by the principal will bind him forever. 
 Mayor v. Foulkrod, 4 Wash. C. C. 511. 
 
 Where an attorney has an apparent 
 authority to compromise, and the com- 
 promise made is not so flagrantly un- 
 fair as to imply fraud or to put the op- 
 posite party upon inquiry, it will stand 
 even though it may subsequently appear 
 that the attorney exceeded his authority. 
 Bank v. Rogers, 75 Mo. 441. 
 
 Power to compromise cannot be in- 
 ferred by persons dealing with an attor- 
 ney from the relationship of attorney and 
 client. Isaacs v. Zugsmith, 103 Pa. St. 
 
 77- 
 
 In England a compromise, bona fide, 
 prudent, beneficial to the client, and not 
 made in defiance of instructions, will be 
 sustained, Chown v. Parrott, 14 Com B. 
 (N. S.) 74; Fray v. Voules, i El. & El. 
 839; Weeks on Attys. § 395. 
 
 An attorney has no general power to 
 compromise claims of the client; but 
 where there is not time or opportunity 
 for consultation with the client, he may, 
 in the exercise of a reasonable discretion, 
 negotiate a compromise where the cir- 
 cumstances are such that he must act 
 without delay, and whei-e the interests of 
 his client will be seriously imperilled un- 
 less he so act, and if he act in good faith, 
 with fair skill and vigilant care, he is not 
 
 956 
 
Powers ImpUed ATTORNEY AND CLIENT. 
 
 by Betainer. 
 
 is held to be within his power to direct the application of the 
 remedy.^ He cannot execute a discharge of the debtor, but upon 
 actual payment of the full amount of the debt, and that in money 
 ■only.'^ The attorney has power to waive technical advantages,* 
 and confess judgment ;* but not to enter a retraxit vi\\&r\ it is 
 a final bar,** nor to assign the claim or judgment to a third 
 party ; * to release indorsers on a note,*" or to admit in such a way 
 as to bind his client's erroneous positions of law.^ He cannot ex- 
 ecute an appeal bond in his client's name,* or bind him by a bond 
 to indemnify the officer levying an execution ; ^" or, in general, 
 
 Ins. Co. V. Bu 
 
 liable for damages, 
 ■chanan, loo Ind. 63. 
 
 1. Talbot V. McGee, 4 B. Mon. (Ky.) 
 377; Inhabitants of Buckland v. Inhab- 
 itants, etc., 16 Mass. 396; Scarborough 
 V. Reynolds, 12 Ala. 252; Stokeley v. 
 Robinson, 34 Pa. St. 315; Holker v. 
 'Parker, 7 Cranch (U.S.), 436; Brooks v'. 
 New Durham, 55 N. H. 559; White u. 
 -Davidson, 8 Md. 169. 
 
 The doctrine is limited to cases where 
 there is a suit pending which he has been 
 •employed to manage. Nagle p. Inger- 
 :Soli. 7 Pa. St. 185, and the agreement to 
 arbitrate should be precedent to the 
 .award, and be made in the cause in a. 
 formal manner. Stokeley v. Robinson, 
 34 Pa. St. 315; Holker v. Parker, 7 
 -Cranch (U. S.), 436. 
 
 An attorney, in the absence of his 
 •client and witnesses when his case was 
 ■<:alled for trial, agreed in open court to 
 a reference to arbitrators. Prior to the 
 meeting of the arbitrators a rule was 
 taken upon plaintiffs to show cause why 
 the agreement to refer should not be set 
 aside, and the submission stricken off, 
 .and after hearing the court discharged the 
 rule. Held, not to be error. The client 
 having obtained the benefit of the delay 
 ■could not repudiate the act of his attor- 
 ney and deny his authority. He received 
 a consideration for the submission, which 
 made it irrevocable. Williams v. Tracey, 
 ■95 Pa. St. 308. 
 
 An agreement to refer to arbitration 
 will be sustained against the client's dis- 
 ;sent. Stokeley v. Robinson, 34 Pa. St. 
 315; Wader v. Powell, 31 Ga. i. But 
 see Markley v. Amos, 8 Rich. (S. Car.) 
 .468. 
 
 Where, however, the client expressly 
 
 , desires it shall not be done, he is said to 
 
 have an action against the attorney for 
 
 damages. Thomas v. Hughes, 2 Cromp. 
 
 & M. 327. 
 
 2. Hamrick v. Combs, 14 Neb. 38; 
 s. c, 16 Neb. 148; Herriman v. Show- 
 man, 24 Kan. 387; s. c, 36 Am. Rep. 
 i6i. 
 
 He cannot accept collateral security 
 
 for a judgment. Halliway v. Thomas, 
 18 Cent. L. J. 320. 
 
 Nor a draft payable in future. Morris 
 V. Grier, 76 N. Car. 410. 
 
 If he takes anything else or a less 
 amount than the entire sum, the plaintiff 
 is not bound. TurnbuU v. Nicholson, 27 
 III. 149; Chapman zk Cowles, 41 Ala. 103; 
 Abbe V. Rood, 6 McLean (C. C), 107; 
 Weeks on Attys. § 41 1 ; Anderson v. Boyd, 
 64 Tex 108; Kelly z/. Wright, 65 Wis. 236. 
 
 The burden of proof is upon the attor- 
 ney to show that he was authorized to 
 receive anything but money. Portis v. 
 Ennis, 27 Tex. 574. 
 
 3. Hanson v. Hoit, 14 N. H. 56; Hoit 
 V. Spalding, i Cal. 213. 
 
 4. King V. Cartee, \ Pa. St. 147; Dent- 
 on v. Noyes, 6 Johns. (N.Y.)296; People 
 V. Lamborn, 2 III. 123. 
 
 5. Lambert v. Sandfort, 2 Blackf. (Ind.) 
 i'37- 
 
 6. Weathers v. Roe, 4 Dana (Ky.), 
 474; Mayer v. Blease. 4 S. Car. 10. 
 
 A solicitor employed to collect money 
 by a suit in chancery has no authority by 
 reason of such employment to assign a 
 decree obtained for his client for less 
 than the full amount due thereon. Rice 
 V. Troup, 62 Miss l86. 
 
 7. Mitchell v. Cotton, 3 Fla. 136 
 
 8. Stokes V. Sheldon, 13 Neb. 207. 
 
 9. Ex parte Holbrook, 5 C6w.(N.Y.)35; 
 Clark V. Courser, 29 N. H. 170. But see 
 Adams v. Robinson, i Pick. (Mass.) 462; 
 Churchhill v. Ins. Co., 92 N. Car. 485. 
 
 10 An attorney's promiseto indemnify 
 the levying officer is without considera- 
 tion, and does not bind him personally. 
 Snow V. Hix, 54 Vt. 478. 
 
 In Minnesota and Wisconsin it is held 
 that the authority of the attorney of non- 
 resident plaintiffs, after judgment was 
 recovered and execution levied, extends 
 to binding the plaintiffs in an undertak- 
 ing under the statute to indemnify and , 
 save harmless the sheriff from all costs, 
 damages, etc., resulting from the enforce- 
 ment of (he execution. Schoregge v. 
 Gorcjon, 29 Minn. 367; Clark v. Randall, 
 9 Wis. 135. 
 
 957 
 
Duration of Authority. A TTORNE Y AND CLIENT. Duties and Dealings. 
 
 affect him in collateral matters.^ The retainer does not authorize 
 him to release an attachment before judgment,^ or make a fraudu- 
 lent defence.^ In criminal cases a waiver of trial by jury is not 
 binding on the defendant, if made without consulting him, even 
 though he was present in court.* 
 
 8. Duration of Authority. — After final judgment the attorney's 
 authority is limited to receiving satisfaction ;^ to that end he may 
 sue out execution and direct its management.® Death of the 
 client or permanent incapacity of the attorney, as insanity or dis- 
 barment, terminate the relation.'' 
 
 9. Duties and Dealings. — -The legal duties of an attorney towards 
 his clients are care, skill, diligence, and integrity ;* he should 
 disclose to his client every adverse retainer or even every prior 
 retainer which may affect the discretion of the latter ;* whatever 
 it is important for the client to know, it is the duty of the at- 
 torney to communicate if he can.^" It is incumbent upon him to 
 notify his client immediately of money collected, and await in- 
 structions ;^i upon demand he must pay it over;^* if the fund is 
 
 1. Weeks on Attys. § 234. 
 
 He cannot bind his client by a sale of 
 the land sued for (Corbin v. Mulligan, i 
 Bush (Ky.), 297), or purchase land for 
 his client at a judicial sale under the 
 client's execution. Beardsley v. Root, 
 II Johns. (N. Y.) 464; Whart. on Agency, 
 §582. 
 
 2. Moulton V. Bowker, 115 Mass. 36. 
 
 3. Williams v. Preston, 47 L. T. 265; 
 s. c, 15 Cent. L. J. 458. 
 
 4. Brown v. State, 16 Ind. 496; Can- 
 ceini V. People, 18 N. Y. 128. 
 
 5. Weeks on Attys. § 238. 
 
 There is no implied authority to bind 
 the client by an agreement made after 
 judgment to postpone execution. Love- 
 grove V. White, L. R. 6 C. P. 446. 
 
 6. If goods are seized on the execution 
 he may order the sheriff to withdraw 
 from possession. Levi v. Abbott, 4 Ex. 
 388; Weeks on Attys. § 238. 
 
 If an attorney is employed to collect 
 a debt this implies as great discretion 
 vested in him after judgment as before. 
 Bolter V. Knight, L. R. 2 Ex. 109; 
 Weeks on Attys. § 242. 
 
 Ordinarily an attorney is authorized 
 to collect a judgment recovered for his 
 client and to execute in the name of his 
 client a proper acquittance therefor. His 
 authority continues until the judgment is 
 collected unless he is sooner discharged; 
 and this rule applies to the attorney of a 
 municipal or ya^W-municipal corporation, 
 as well as of any other client. Conway 
 County et al. v. Little Rock & Fort Smith 
 R. Co., 39 Ark. 50. 
 
 The general poiver and liability of an 
 attorney for a defendant cease upon the 
 
 entry of a judgment finally terminating 
 the litigation, and do not include the pay- 
 ment of the judgment, although he be 
 furnished with money for the purpose. 
 Hilleglass. Admr., v. Bender, 78 Md. 225. 
 
 7. Weeks on Attys. § 256; Wharton 
 on Agency, §§ 108, 634. 
 
 8. Weeks on Attys. § 259; Lilly v. 
 Boyd, 72 Ga. 83. 
 
 9. Weeks on Attys. § 260. 
 
 Failure to do so unaccompanied with 
 other circumstances is not necessarily 
 conclusive evidence of fraud, although 
 a clear misapprehension of professional 
 duty. Williams v. Reed, Mason (U. 
 S.), 404, per Story, J. 
 
 10. Weeks on Attys. § 262. 
 
 Failure to do so reduces his claim 
 for compensation, and may be the ground 
 of an action against him by his client. 
 Hoopes V. Burnett, 26 Miss. 428; Jett v. 
 Hempstead, 25 Ark. 462; Fox v. Cooper, 
 2 Q. B. 237 
 
 11. The duty of rendering accounts is 
 very strictly enforced against attorneys,' 
 and courts of equity may open accounfo 
 after many years have elapsed and 
 vouchers are destroyed. In re Lee L. R. 
 4 Ch. 43; Lewis v. Morgan, 3 Anstr. 769. 
 
 The mere entry of a judgment by an 
 attorney at law, without more, imposes 
 on him no liability to notify his client or 
 revive the judgment when the lien is * 
 about to expire. Cook's Exrs. v. Foster's 
 Admr., j Cent. Repr. (Pa.) 256. 
 
 12. Until demand made or unless cir- 
 cumstances exist which amount to a waiv- 
 er of demand no action will lie. Weeks on 
 Attys. § 263; Voss V. Bachop, 5 Kans. 
 67; Taylor v. Bates, 6 Cow. (N. Y.) 596. 
 
 958 
 
Duties and Dealings. ATTORNEY AND CLIENT. Duties and DeaUngg. 
 
 claimed by third parties, he may demand security of the claimant 
 or client, and pay either upon receiving indemnity.* While the 
 fidelity due the client is generally inconsistent with the acceptance 
 of a retainer from both sides, it is nevertheless not unusual for the 
 same attorney to be employed by both vendor and purchaser in 
 the sale of real estate.* 
 
 An attorney in a purchase or a mortgage transaction under- 
 takes to investigate only the legal requisites of title and not its 
 value; he is to see that the security is sufficient in law.^ 
 
 Dealings. — The relation of attorney and client being quasi-^Avi- 
 ciary, all transactions between them to be upheld must be uberrima 
 fides, and to establish that such is the case rests with him who 
 would uphold the transaction.* The jealous care and scrutiny 
 over such transactions extends to all gifts, conveyances, and con- 
 tracts by the client, and all securities given by him pending the 
 relation.^ The foundation of the rule is the influence arising 
 
 The statute of limitations begins to 
 run against an attorney from the time 
 the client had knowledge or means of 
 knowledge that the money had been col- 
 lected, and before the attorney can avail 
 himself of the defence he must prove 
 that he notified the client of the collec- 
 tion. McDowell V. Potter, 8 Pa. St., 
 189; Voss V. Bachop, 5 Kans. 67; Staf- 
 ford V. Richardson, 15 Wend. (N. Y.)305. 
 
 Where, however, the duty of collection 
 is immediate, the right of action accrues, 
 and the statute begins to run from the 
 receipt of the money. Livingston v. 
 Cox, 6 Pa. St. 360. 
 
 1. Weeks on Attys. § 263; Sims v. 
 Brown, 6 Thomp. & C. (N. Y.) 5; Mar- 
 vin V. Elwood, II Paige (N. Y.), 365. 
 
 2. Prima facie when the fact of em- 
 ployment by both parties is known to 
 both no great degree of turpitude at- 
 taches to the transaction. Weeks on 
 Attys. § 265. 
 
 Still the practice is far from advisa- 
 ble, as the purchaser is liable to be af- 
 fected with constructive notice of prior 
 equities or fraud known to the attorney. 
 Suydam on Vendors & Purchasers (nth 
 Ed), 7; Burrows v. Locke, 10 Ves. 470; 
 Taylor v. Blackfoot, 3 Bing. N. C. 235. 
 
 3. Weeks on Attys. § 266; Green v. 
 Dixon, I Jur. 137; Howell v. Young, 5 
 Barn. & C. 259; Hayne v. Rhodes, 8 Q. 
 B. 342. 
 
 But where the attorney is employed to 
 invest the money and find the proper se- 
 curity in point of value, a case of com- 
 bined agency and trust is created, and 
 he will be liable like any other trustee. 
 Dartwell v. Howard, 4 Barn. & C. 345; 
 Craig V. Wilson, 8 Beav. 427. 
 
 The fact that an attorney instructed to 
 
 invest a sum of money on good bond 
 and mortgage takes his wife's mortgage 
 of the property as a full security is not 
 in itself evidence of bad faith, so that an 
 action for the conversion of the same 
 would lie, the security of the mortgage 
 having in the mean time failed. King v. 
 Kellar(N.Y.Ch. App.), 18 Cent. L.J. 251. 
 
 4. Weeks on Attys. § 268; Merriman 
 V. Euler, Md. Ch. App. 18 Cent. L. J. 31. 
 
 5. Gray ». Emmons, 7 Mich. 533. 
 
 An attorney must show that the client 
 acted freely and understandingly. If it 
 be claimed that an instrument executed 
 by the client during the professional re- 
 lation was intended to provide a remuner- 
 ation for past services, then the plaintiff 
 must prove such services that there ex- 
 isted at the time of giving it at least a 
 moral obligation to pay, that the instru- 
 ment was fully understood by the person 
 executing it, and that it was made in 
 pursuance of and in accordance with a 
 well considered, definite, and well set- 
 tled purpose. Jennings v. McConnell, 
 17 111. 148; Brock V. Barnes, 40 Barb. 
 (N. Y.) 521. 
 
 Purchase of Property from Client. — 
 The law does not absuulutely prohibit an 
 attorney from purchasing from his client; 
 it simply casts upon him the burden of 
 proving that the transaction was perfectly 
 fair, and that a just and adequate price 
 has been given. Yeamans v. James, 27 
 Kan. 195. 
 
 "The rule is that the attorney must 
 make a full disclosure of every fact 
 which might influence the decision by 
 the client of the question of the sale." 
 Rogers v. Marshall, 3 McCray (U. S.), 
 76. 
 
 Equity will not uphold a purchase of 
 
 959 
 
Duties and DeaUngs. ATTORNEY AND CLIENT. Duties and DeaUngs. 
 
 from the relation ; so long, therefore, as the influence exists the 
 rule of course applies.* ' 
 
 An attorney cannot accept interests conflicting with those of 
 
 the subject-matter of the suit by the at- 
 torney from his client when it appears 
 that while negotiating for the property 
 he was at the same time advising his 
 client upon the outcome of the litigation 
 even upon a showing of good faith. 
 Rogers v. Lee Mining Co., 9 Fed. 
 Rep. 721 ; Lane v. Black, 21 W. Va. 
 
 •:6i7. 
 
 The courts have sometimes decreed 
 that conveyances to attorneys should 
 ■stand as security for the services already 
 performed, or for money due, and the 
 surplus declared a trust. Woods v. 
 Downes, 18 Ves. 120; Sanderson v. Glass, 
 2 Ark. 296; Mason v. Ring, 3 Abb. (N. Y. 
 App.) 210. 
 
 A promissory note, and mortgage to 
 ;secure its payment, given by a client to 
 his attorney to secure payment for pro- 
 fessional services, will be sustained if the 
 transaction is fair, honorable, and proper. 
 Wharton z'. Hammond, 20 Fla. 934. 
 
 Adverse Title. — An attorney cannot in 
 any case, without the client's consent, 
 buy and hold otherwise than in trust any 
 -adverse title or interest touching the thing 
 to which his employment relates. Baker 
 V. Humphrey, lot U. S. 494. 
 
 If he does so buy, he will hold the title 
 as trustee for his client, who may recover 
 the property by tendering the amount of 
 the purchase-money with interest. Henry 
 -V. Raiman, 25 Pa. 354; Zeiglerz/. Hughes, 
 55 III. 288; Harper v. Perry, 28 Iowa, 57; 
 Wheeler v. Willard, 44 Vt. 640; Case v. 
 ■Carroll, 35 N. Y. 385; Weeks on Attys. 
 §§ 26S, 270, 273, 274, 277. 
 
 An attorney having recovered a judg- 
 ment for his client, and having the con- 
 trol thereof, cannot, without the consent 
 of his client, express or implied, become 
 the purchaser of lands at a sale under ex- 
 ecution issued thereon; and if he does so 
 purchase, he becomes, like any other 
 agent, a trustee for his client. Such a 
 trust arises by operation of law, and con- 
 tinues until barred by lapse of time, or 
 until terminated by an election to ratify 
 the purchase, thereby giving it validity. 
 Pearce v. Gamble, 72 Ala. 341. 
 
 An attorney who is employed to sue a 
 debt, attach real estate, procure a judg- 
 ment, and levy the same upon the land 
 .attached, is estopped from denying the 
 validity of his own work, to his, own pro- 
 fit or advantage; and when such attach- 
 ment and levy are defective, and he pur- 
 chases the land levied upon, the title that 
 
 he takes at once inures to the judgment 
 creditor. A record that discloses the re- 
 lation of attorney and client touching a 
 levy upon real estate is notice to subse- 
 quent purchasers from the attorney that 
 he cannot dispute the validity of the levy, 
 and take an after-acquired title to such 
 land in his own right. Brfggs v. Hodg- 
 don, 7 Atl. Repr. (Me.) 387. ■ 
 
 Gifts. — In the absence of fraud a client 
 may make a voluntary gift to his attorney 
 or agent. Wolmsey v. Booth, 2 Atk. 40; 
 Craig V. Mansfield, i Ves. 379; Oldham 
 V. Hand, 2 Ves. 259, 549. 
 
 But third parties should be present to 
 witness the transaction, as suspicion will 
 always attach. Harris v. Tremenhere, 
 15 Ves. 40. 
 
 Courts of equity have, on grounds of 
 public policy, set such gifts aside with- 
 out actual fraud, when made during the 
 period when the attorney has in his 
 hands the management of his client's 
 affairs. Wells v. Middleton, i Cox. 112; 
 Montesquieu v. Sandys, I Bach. & B. 
 312. 
 
 But when the cause is finished and the 
 relation no longer exists, the gift will be 
 sustained. Harris v. Tremenhere, 15 
 Ves. 84. 
 
 In a gift by a testator it is not decisive 
 evidence of fraud that the attorney who 
 drew the will was one of the residuary 
 legatees. Paine v. Hallj 18 Ves. 
 
 475- 
 
 Mr. E., as solicitor, agreed with Mrs. 
 C. to defend certain suits, for which she 
 agreed to give him halfof allthe property 
 or money that should be recovered; the 
 defence entered failed, and the property 
 was all rescued from Mrs. C. by judg- 
 ment; Mr. E. procured Mrs. C. to execute 
 and deliver to him a deed for one half of 
 other property which she owned, without 
 question, representing to her that it Was 
 for his compensation under the agree- 
 ment. Held, that such deed is fraudu- 
 lent and void both in law and in fact. 
 Cleine v. Engelbrecht, 8 Eastern Repr. 
 (N. J.) 406. 
 
 1.' The authorities show that when this 
 is the case the transaction will be scruti- 
 nized with the same jealousy as if the re- 
 lation had continued. " It is not denied 
 in any case that if the relation had com- 
 pletely ceased — if the influence can be 
 supposed also rationally to cease — a client 
 may be generous to his attorney or coun- 
 sel as 10 any other person, but it must go 
 
 960 
 
Duties and Dealings. ATTORNEY AND CLIENT. LiabiUty to Client. 
 
 his client ;^ he cannot use information received by him from his 
 client in opposition to his client.* 
 
 10. Liability to Client. — Art attorney is responsible to his client 
 only for the want of ordinary skill, ordinary care, and reasonable 
 diligence ;^ and the skill required has reference to the character of 
 the business he has undertaken to do.* If an attorney disobeys 
 express lawful instructions of his client,^ if he negligently fails to 
 bring suit,* or if he loses deeds or valuable securities intrusted to 
 
 applied to a rural bar. A person claiming 
 to be an ordinary practitioner must pos- 
 sess the skill and exhibit the diligence of 
 lawyers in ordinary; so a person claiming 
 to be an admiralty or equity lawyer, 
 while not required to be an expert out of 
 the department ihus specified, niust exer- 
 cise due skill and diligence in it. Weeks 
 on Attys. § 289; Green's note to Story 
 on Agency (gth Ed.), § 27. 
 
 The lawyer is to exercise the diligence 
 which good business men in such spe- 
 cialty are in such locality accustomed to 
 exercise. Pennington v. Yell, 6 Eng. 
 (Ark.) 212; Wharton on Negligence, § 
 750. 
 
 An attorney in the State of New York, 
 employed there to draw a contract for 
 building on lands in New Jersey, does 
 not by accepting such employment im- 
 pliedly undertake that he is acquainted 
 with th'e laws of New Jersey respecting 
 the necessity of filing such contracts for 
 protection against the claims of workmen 
 and material-men under the mechanics' 
 lien law. By accepting employment to 
 draw such contract he does not thereby 
 undertake to file it; and in the absence of 
 an express undertaking he will not be 
 liable for failure to do so. Fenaille v. 
 Coudert, 44 N. J. L. 284. 
 
 5. Gilbert v. Williams, 8 Mass. 57; 
 Cox V. Livingstone, 2 W. & S. (Pa.) 103; 
 Wilcox V. Plummer, 4 Pet. (U. S.) 172. 
 
 But not if he has only done what the 
 court would order to be done. Read v. 
 French, 28 N. Y. 293. 
 
 6. In an action against an attorney for 
 breach of professional duty in neglecting 
 to begin proceedings to collect a claim 
 until after it was barred by the statute of 
 limitations, the plea of the bar of the 
 statute is a good defence. The statute 
 begins to run from the time of the breach 
 of professional duty, not from the time 
 when knowledge of special consequential 
 damages is brought home to the client. 
 The retention of the attorney after the 
 violation of his implied contract does not 
 suspend the running of the statute. 
 Moore v. Juvenal, 92 Pa. St. 484. 
 
 In order to hold an attorney liable for 
 not making an attachment the plaintiff 
 
 so far.^' Lord Eldon in Woods 'u. 
 Downes, 18 Ves. 119. 
 
 1. Whart. on Agency, § 593; Weeks 
 on Attys. § 271, Com. v. Gibbs, 4 Gray 
 (Mass.), 146; Price v. Grand Rapids R., 
 18 Ind. 139; Gauldin v. State, 11 Ga. 47. 
 
 He cannot act as solicitor for the re- 
 ceiver for whose appointment he moves. 
 Warren v. Sprague, 4 Edw. Ch. (N. Y.) 
 416. 
 
 Nor as administrator oi an estate 
 against which he is pressing a hostile 
 claim. Spinks v. Davis, 32 Miss. 152. 
 
 He cannot represent both sides, even 
 though th,e proceedings be amicable; nor 
 can he, after having been retained by one 
 side, obtain compensation for his services 
 from the other. Sherwood v. Saratoga 
 R., 15 Barb. (N. Y.) 650; Valentine v. 
 Stewart, 15 Cal. 387. 
 
 When, however, an attorney has been 
 employed in a cause and is afterwards dis- 
 charged by his client, not on the ground 
 'of misconduct, the court will not restrain 
 him from acting for the opposite party, 
 unless it clearly and distinctly appears 
 that he has obtained information in his 
 former character, which would be preju- 
 dicial to the cause of his former client to 
 communicate Johnson v. Marriott, 2 
 Cromp. & M. 1S3; Grissell v. Peld, 2 
 Moore & S. 2. Compare People v. Spen- 
 cer, 10 Pac. Coast L. J. 127. 
 
 2. Weeks on Attys. § 279. 
 
 An attorney who has been consulted as 
 to the title to lands cannot afterwards be- 
 coine a purchaser of such lands from the 
 State, nor from a third person, to use the 
 title against his client. Weeks on Attys. 
 § 279; Wharton on Agency, § 578. 
 
 But it is said the mere fact that in 
 other independent suits the attorney be- 
 came acquainted with the business of the 
 adverse party will not prevent him from 
 acting professionally against such party. 
 Price V. Railroad, 18 Ind. 137. 
 
 3. Weeks on Attys. § 284. 
 
 4. Cox V. Sullivan, 7 Ga. 144; Holmes 
 V. Peck, I R. S. 242; Pennington v. Yell, 
 6 Eng. (Ark.) 212; Montrion v. Jeffereys, 
 2 Car. & P. 113; Pitts'. Yalden, 4 Burr. 
 Z060. 
 
 A metropolitan standard is not to be 
 
 I C. of L.— 62 
 
 961 
 
Liability to CUent. A TTORNEY AND CLIENT. Liability to Client. 
 
 him by his client, he will be responsible for any loss resulting 
 therefrom.'^ "There is no implied agreement in the relation of 
 counsel, or the employment of the former by the latter, that the 
 attorney will guarantee the success of his proceedings in a suit, or 
 the soundness of his opinions, or that he will ultimately be sus- 
 tained by a court of last resort."* He only undertakes to avoid 
 errors which no member of his profession of ordinary prudence, 
 diligence, and skill would commit,^ and cannot be held liable in 
 any case of reasonable doubt.* If, however, he disregard rules of 
 law which are well and clearly defined, both in text books and 
 reports, and which have existed and been published long enough 
 to justify the belief that they are well known to the profession ;* 
 if he ignore the practice of his court, the ordinary rules of pleading 
 and evidence, the existence of statutes and rules of court, and in 
 cases free from doubt even their construction ;® if he commit 
 blunders in process, and his papers are defective from lack of dili- 
 gence on his part or on the part of his subordinates, — he will be 
 liable.'' The attorney is also held to the exercise of reasonable 
 care and diligence,^ and the want of either constitutes gross negli- 
 
 (client) must show that he offered to file 
 the necessary bond and nnake the requi- 
 site affidavit. Foulks v. Falls, gi Ind. 315. 
 
 1. North Western Co. v. Sharp, 28 
 Eng. L. & E. 555. 
 
 An attorney whose office has been 
 -broken open and papers stolen- there- 
 from, wiihout negligence on his part, is 
 not liable for the loss. Hill v. Barney, 
 18 N. H. 607. 
 
 2. Weeks on Attys. § 1290. 
 
 3. Bowman v. Talman, 27 How. Pr. 
 (N. Y.) 212. 
 
 4. Watson v. Muirhead, 57 Pa. St. 161. 
 "The error being such an error as a 
 
 cautious man might fall into." Montri- 
 on V. Jeffereys, 2 Car. & P. 1 13; Pitt v. 
 Yalden, 4 Burr. 2060. 
 
 He cannot on account of such an error 
 be deprived of his fee. Pitt v. Yalden, 
 4 Burr. 2060; Godefroy v. Dalton, 6 Bing. 
 467; 4 Moore & P. 149. 
 
 5. Weeks on Attorneys, § 284; Good- 
 man V. Walker, 30 Ala. 4S2. 
 
 The attorney cannot be charged with 
 negligence when he accepts as a correct 
 exposition of the law a solemn decision 
 of the supreme court of the State, es- 
 pecially in advance of anv decision of 
 the Supreme Court of the United States. 
 Marsh v. Whitman, 21 Wall. (U. S.) 178. 
 
 6. Bringing an action of assumpsit on 
 a deed under the common-law system. 
 Cl'iffe V. Prosser, 2 Dowl. O. S. 21. 
 
 Bringing suit in a court which had no 
 jurisdiction. Williams v. Gibbs, 5 Ad. & 
 E, 20S. 
 . Omitting from mistake to procure t?he 
 
 ordinary instruments of evidence( Hop- 
 ping V. Quin, 12 Wend. (N. Y.) 519), or 
 laying the venue in the wrong county 
 (Kemp V. Burt, 4 Barn. & Adol. 424), 
 has been held actionable. See also- 
 Weeks on Attorneys, § 285. 
 
 7. Wharton on Agency, § 598; In re 
 Bolton, 9 Beav. 272; In re Spencer, i8- 
 W. R. Ch. 240; Varnum v. Martin. 15, 
 Pick. (Mass.) 450; McWilliams v. Hop- 
 kins, 4 Rawle (Pa.), 392; Dearborn v.. 
 Dearborn, 15 Mass. 316; Rootes v. 
 Stone. 2 Leigh (Va.), 650; Reilley v. 
 Cavanaugh. 29 Ind. 435; Oldham v. 
 Sparks, 28 Tex. 425. 
 
 An attorney is bound to show the dili- 
 gence of a good practitioner in issuing 
 writs of execution, and such writs as are 
 proper to make good the judgment when 
 obtained. Wharton on Agency, § 598;. 
 Devborn v. Dearborn, 15 Mass. 316. 
 
 If the law is plain he is liable both as 
 to the proper parties to be sued and the 
 form and order of the proceedings. 
 Davis V. Jenkins, II Mees. & W. 745. 
 
 In a purchase or mortgage transac- 
 tion the attorney is responsible for the 
 security, in point of law only, not value. 
 Hayne v. Rhodes, 8 Q. B. 342. 
 
 8. Stephens v. Walker, 55 111. 151; 
 Walpole's Admr. v. Carlisle, 32 Ind. 415. 
 
 Thus if he undertakes to collect a debt 
 and neglects to sue out all process neces- 
 sary for the object. Dearborn -v. Dear- 
 born, 15 Mass. 316. 
 
 Or neglects to deliver a fi. fa. to the 
 sheriff in time and the levy be lost. Phil- 
 lips V. Bridge, ii Mass. 24.6. 
 
 963 
 
LiabiUiy to CUent. ATTORNEY AND CLIENT. LiabiUty of CUent, 
 
 gence, and will fasten liability upon him.^ The usual remedy of 
 a client against an attorney is by an action on the case.® In cases 
 of gross neglect or misconduct the courts have interfered sum- 
 marily, especially where the transaction has been tainted with 
 fraud,* or the attorney has been paid for what he omitted to do.* 
 In all actions against attorneys for negligence or want of skill, 
 when the facts are ascertained the question of negligence or want 
 of skill is for the jury.^ The measure of damages is the loss 
 actually sustained and not the mere nominal amount of the de- 
 mand for collection.® The burden of proving negligence rests 
 primarily upon the plaintiff -^ when once established, it is for the 
 solicitor to prove that the client was not injured by it.^ 
 
 11. Liability of Client to Attorney. — An attorney may recover from 
 his client all reasonable expenses occasioned by the litigation,* 
 
 liamson, 4 De Gex & J. 208'; Chapman 
 V. Chapman, L. R. g Eq. 276. 
 
 A bill in equity will noc lie against a. 
 solicitor for negligence in investigating a 
 title, upon the ground that he is an offi- 
 cer of the court, andthe court of chancery- 
 has concurrent jurisdiction with courts of 
 law over its own officers. L. R. ig Eq_ 
 627; 12 Alb. L. J. 75. 
 
 5. Rhines v. Evans, 66 Pa. ig2; Pen- 
 nington V. Yell, 6 Eng. (Ark.) 212; 
 Hunter w. Caldwell, 10 Q. B. 6g: Reece 
 V. Rigley, 4 B. & A. 202; Walpole v. 
 Carlisle, 32 Ind. 415. Contra, Gambert 
 V. Hart, 44 Cal. 542. 
 
 6. Weeks on Attorneys, §482; Godefroy 
 w. Jay, 7 Bing. 413; Governor!' Raley, 34 
 Ga. 173; Tasham v. Lewis, 65 Pa. St. 65. 
 
 An averment that the attorney under- 
 took the case without consideration is no- 
 answer. Stephens v. White, 2 Wash. 
 (Va.) 203. 
 
 7. Wharton on Negligence, § 752. 
 
 8. Godefroy v. Jay, 7 Bing. 413. See- 
 Harter v. Morris, 18 Ohio St. 4gi. 
 
 9. Champin v. King, 6 Jur. 35. 
 Attorneys' fees are properly included 
 
 in a judgment in railway condemnation 
 proceedings. Minneapolis R. Co. v. 
 Wood worth, 21 N. W. Rep. 476. 
 
 Sec. 2577 of the Mississippi Code of 
 1880 provides that "In all cases of the 
 partition or sale of property for division of 
 proceeds the courts may allow a reason- 
 able solicitor's fee to the solicitor of the 
 complainant to be taxed as a common, 
 charge on all the interests, and to be paid 
 out of the proceeds, in case of sale, and 
 to be a lien on the several parts in case 
 of partition." For construction see N. 
 E. Potts et al. v. Ella Gray, 60 Miss. 57. 
 
 In Pennsyjvania the same result is 
 reached by judicial decision. Clark's 
 App., g3 Pa. St. 36g; Fidelity Ins. Co.'s 
 Appeal, 108 Pa. St. 340. 
 
 Or if he allowed a cause to be called 
 without previously inquiring whether a 
 material witness was absent, and his client 
 was non-suited. Reece v. Rigby, 4 
 Barn. & Aid. 202. 
 
 Or when being retained to defend a 
 suit he allowed judgment to be taken for 
 want of an answer; Godefroy v. Jay, 7 
 Bing. 413. 
 
 1. Weeks on Attys. § 2g3; Brazier v. 
 Bryant, 2 Dowl. O. S. 600. 
 
 An attorney is not liable to one be- 
 tween whom and himself the relation of 
 attorney and client does not exist for 
 giving in answer to a casual inquiry an 
 erroneous answer as to the contents of a 
 deed. Shillcock tj. Passman, 7 Car. & 
 P. 288; Weeks on Attys. § 484. 
 
 3 Russell V. Palmer, 2 Wils. 235. 
 Wendell v. Van Rensselaer, i John. 
 (N. Y.) 344; 4 John. Ch. (N. Y.) 
 
 I Barn. loi; 
 
 3. 
 
 Ch. 
 118. 
 
 4 Garner v. Lawson, 
 Rex V. Jew, Sayers, 50. 
 
 When summary jurisdiction is resorted 
 to, the attorney may be proceeded against 
 by attachment: Floyd v. Nangle, 3 Atk. 
 568. By an order to reimburse the client: 
 Rex V. Bennett. Sayers, i6g. Or an or- 
 der to impose costs: Rex v. Jew, Say- 
 ers, 50. 
 
 But without some proof of fraud the 
 courts generally prefer to leave the client 
 to his regular remedy bv action. Barker 
 V. Butler, 2 W. Black. 780. 
 
 In cases of fraud, equity may take cog- 
 nizance, but not in cases o! mere negli- 
 gence. Wharton on Agency, § 605; 
 British Mutual Investment Co. v, Cob- 
 hote. L. R. ig Eq 627; Brooks z/. Day, 
 2 Dick. 572; Blair v. Bromley, 5 Hare, 
 542; 2. Phill. 354; Ware z/ Lewis, Sr., L. 
 R. 4 Eq. 235. Dicta to the contrary are to 
 be found in Floyd v. Nangle, 3 Atk. 568, 
 ■ V. JoUand, 8 Ves. 72; Dixon v. Wil- 
 
 963 
 
llabiUty of Client A TTORNE Y AND CLIENT. 
 
 to Attorney, 
 
 and is entitled to compensation for all services rendered in good 
 faith and in a proper manner.^ If ill success, however, is attribut- 
 able to the lawyer's bad faith or negligence, he cannot recover.* 
 The attorney cannot recover when the service rendered was the 
 maintenance of a procedure either illegal or immoral ;^ nor can a 
 
 The statute applies only to " amicable" 
 suits. Cowdrey v. Hitchcock, 103 111. 263. 
 
 1. In England attorneys' and solicitors' 
 iees are regulated by statute and rules of 
 court. Weeks on Attys. §§ 324, 325. 
 
 A barrister's fee is termed honorarium 
 and not merces. " Briefly, it is a gift of 
 such a nature, and given and taken upon 
 such terms, as, albeit the able client may 
 not neglect to give it, without note of 
 ingratitude (for it is but a gratuity or 
 token of thankfulness), yet the worthy 
 •counsellor may not demand it without 
 doing wrong to his reputation, according 
 unto that moral rule, Multa honeste accipi 
 ^ossunt, quce tamen honeste peti non pos- 
 suni." Preface to Sir John Davy's 
 Reports. It follows that a barrister is 
 incapable of rhaking a contract for the 
 compensation of his services as such. 
 Kennedy v. Brown, 13 C. B. N. S. 677. 
 And is exempt from all the ordinary 
 liabilities of attorneys. Swinfen v. 
 Chelmsford, i Fost. & F. 619. 
 
 Under the civil law, also, the recom- 
 pense was purely honorary and the client 
 was under no legal obligation to pay it. 
 In Scotland, where the civil law prevails, 
 an action can be sustained on a promise 
 to compensate an advocate for his ser- 
 vices; and in France the advocate may 
 recover his fees by suit. But it seems 
 to be considered dishonorable by the 
 Parisian bar to bring suits for counsel- 
 fees; and those who should attempt to do 
 it would be immediately stricken from 
 the roll of advocates. Adams v. Stevens, 
 26 Wend. (N. Y.) 455- 
 
 In the United States the English rule 
 that counsel or barristers cannot recover 
 by suit compensation for their services 
 'is not generally in force. Wharton on 
 Agency, § 615; Wylie v. Coxe, 15 How. 
 (U. S) 415; Smith V. Davis, 45 N. H. 566; 
 Nichols V. Scott. 12 Vt. 47; Miller v. 
 Beal, 26 Ind. 234; Webb v. Browning, 
 14 Mo. 354; Harland w. Lilienihal, 53 N. 
 Y. 438; Foster v. Jack, 4 Watts (Pa.), 
 344; Stephens v. Monges, i Har. (Del.) 
 127; Bracket! v. Sears, 15 Mich. 244. 
 
 In Pennsylvania the English rule was 
 once in vogue. Brackenridge v. Mc- 
 Farland, Addis, 49. But has since been 
 overruled. Balsbaugh v. -Frazer, 19 Pa. 
 St. 95. 
 
 In New Jersey the English rule has 
 obtained, and also to some extent in the 
 
 964 
 
 federal courts as applied to counsel in 
 the special sense of tiiat term. Seeley v. 
 Crane, 3 Greene (N. J.), 35; Law v. 
 Ewell, 2 Cranch C. C. 144. But see 
 Hassel v. Van Houten, 39 N. J. ,Eq. 105. 
 
 A counsellor at law may recover coun- 
 sel-fees of a party who has agreed to 
 pay him for his services in suits in the 
 supreme court. Zabriskie v. Woodruff, 
 5 Cent. Rep. (N. J.) 329. 
 
 To support his claim to compensation 
 for professional services, an attorney may 
 prove either his original employment by 
 the client or the performance of services 
 with the knowledge of the client, and the 
 recognition of the relation of the client 
 during the progress of the cause. Jack- ■ 
 son V. Clopton, 66 Ala. 29. 
 
 Even in those jurisdictions where a 
 counsel cannot collect his fees by process 
 of law, an action will lie upon a bill of 
 exchange or promissory note given in 
 consideration of his services. Mowat v. 
 Brown, 19 Fed. Rep. 87. 
 
 2. Wharton on Agency, § 615; May- 
 nard v. Briggs, 26 Vt. 44; Bradm v. 
 Kingland, 4 Watts (Pa.), 420; Hopping w. 
 Quin, 12 Wend. (N. Y.) 517; Chatfield v. 
 Simonson, 92 N. Y. 209; Andrews v. 
 Tyng, 94 N. Y. 16. 
 
 But negligence or ill faith in one mat- 
 ter will not affect him in another. Per- 
 haps it may if pleaded as a set-off. 
 Currie v. Cowes, 2 B. & S. 542; Walsh 
 V. Shumway, 65 111. 471; Weeks on Attys. 
 § 335- 
 
 The fact that one of the plaintiffs, an 
 attorney at law, had, under a prior re- 
 tainer, advocated views of the law find 
 the facts different from those upon which 
 his subsequent client, the defendant, 
 rested its case, or had oflScially, as a 
 judge or officer of the government, held 
 a different view of the law and the rights 
 of the parties, did not of itself disqualify 
 him from accepting a retainer from the 
 defendant, nor did it necessarily render 
 his services less valuable to the de- 
 fendant; and in an action against the 
 defendant for the value of his services 
 it was error to admit evidence of the 
 advocacy of such former opinions for 
 the purpose of showing bad faith, whereby 
 to defeat his recovery. Smith v. C. & N. 
 W. R. Co., 60 Iowa, 515. 
 
 3. Treat?/. Jones, 28'Conn. 334; Hallet 
 V. Oakes, i Cush. (Mass.) 296; Arring- 
 
Liability of Client ATTORNEY AND CLIENT. 
 
 to Attorney, 
 
 lawyer recover for absolutely useless work.* Actions for attor- 
 neys' fees should be brought in the name of the person directly 
 employed or retained.'-* The employment of an attorney to con- 
 duct a cause is a personal trust and confidence ; it cannot be dele- 
 gated except by consent of client.* If, however, he does so con- 
 sent, the attorney whose services were contracted for may recover 
 on the contract.* Withdrawal from a case with the client's con- 
 gent does not operate as a waiver of the right to compensation for 
 services already rendered ? nor does dismissal by the client without 
 
 of an attorney who is retained by one 
 person for another; but the employer 
 must promise to pay, and ihe action is on 
 the express promise against the person 
 making it, and, under the Statute of 
 Frauds, must be in writing. Siark, 270; 
 Sands 2/. Trevillian, Cro, Car. 107; Weeks, 
 on Attys. § 335. 
 
 5, Coopwood V. Wallace, 12 Ala. 790;; 
 Tenney v. Berger, 93 N. Y. 524. 
 
 Attorneys employed under a special 
 contract who abandon the cause before 
 its termination are thereby deprived of 
 any claim under the contract, and are left 
 to recover such fees as they are reason- 
 ably entitled to on the basis of a. quantum 
 meruit. Weeks on Attys. § 365. 
 
 The client of a legal firm is entitled to> 
 the services of every member; and if one 
 abandons the retainer with the assent of 
 the others, express or implied, or they 
 attempt to supply his place with another 
 of equal or superior ability, it will be no 
 performance of the contract. Morgan v. 
 Roberts, 38 III. 65. 
 
 Non-payment of costs after repeated 
 applications was held good ground for 
 abandonment by Tenterden, C. J., in 
 Rowson V. Earle, Sittings in London, 
 1829. Contra, 14 Ves. 196; Mordecai v. 
 Solomon,, Sayers, 172. See also Mo- 
 range V. Kling, 93 N. Y. 381. 
 
 In case of such refusal it is within the 
 power of the court to permit the substitu- 
 tion of "a new attorney, and it is within 
 its discretion to determine upon what 
 terms it shall be done, and, among others, 
 whether the judgment or order when ob- 
 tained shall be chargeable with the fees- 
 of the original attorney. Morange v. 
 Kling, 93 N. Y. 381. 
 
 The employment, however, by the 
 client, without the consent of or consulta- 
 tion with the attorney, of a counsel with 
 whom the attorney's relations are such, 
 that they cannot cordially co-operate, 
 is a justifiable cause for his withdrawal 
 from the case, and upon such withdrawal 
 the client is liable for services rendered. 
 Tenney v. Berger, 93 N. Y. 524. As to 
 substitution of attorneys, see Wilkinson 
 V. Tilden, 14 Fed. Rep., 778 and note. 
 
 ton V. Sneed, 18 Tex. 135; Frish v. Child, 
 27 Wall. (U. S.) 441. 
 
 1. Shaw V. Arden, 9 Bing. 287; Symes 
 V. Pepper, 12 Ad. & E. 337. 
 
 He is entitled to compensation for 
 bringing suit, although suit was unneces- 
 sary and attorney knew it, if the client 
 has derived benefit therefrom. Murphy 
 V. Shepardson, 60 Wis. 412. 
 
 When there is a dispute as to the 
 amount of fees, and the attorney acted 
 in good faith, his right to compensation 
 is not forfeited should the jury find he 
 was entitled to a less sum than he 
 claimed. But if he fraudulently claimed 
 the right to retain out of the money of 
 his client a larger sum than the jury find 
 to be just, he forfeits, all claim to every 
 compensation whatever. Shoemaker v. 
 Stiles, 102 Pa. St. 549. 
 
 2. If the work was performed by a 
 partnership, then all the plaintiffs should 
 be duly qualified attorneys. Williams v. 
 Jones, 5 Barn. & C. 108; Arden v. Tuck- 
 er, I Moody & R. 191. But see Kell v. 
 Nainby, 10 Barn. & C. 20. 
 
 A member of a firm may sue in his own 
 name for a demand due the firm, if the 
 business from which it arose was con- 
 ducted in his name solely. Piatt v. 
 Halen, 23 Wend. (N. Y.) 456; Lansing v. 
 McKillup, 7 Cowen (N. Y.), 416. 
 
 But recovery may be had by one 
 member of the firm for services not 
 embraced in the business of the firm. 
 Moshier v. Frost, no 111. 206. 
 
 3. Hitchcock f .McGee. 7 Port(Ala.) 556; 
 Matter of Bleakley, 5 Paige (N. Y.), 311. 
 
 4. AUcorn v. Butler, g Tex. 56. 
 When one attorney does business for 
 
 another, the attorney employed generally 
 looks to the attorney who employs him 
 and not to the client. Weeks on Attys. 
 
 §557- 
 
 To avoid liability, express notice must 
 be given by the employing attorney that 
 the business is to be done on client's 
 credit; it is no defence that the business 
 was known by the plaintiff to be done 
 for the benefit of the client. Serace v. 
 Whittington, 2 Barn. & C. 11. 
 
 Indebitatus assumpsit will lie in favor 
 
 965 
 
XiaKUty of CUent A TTORNE V AND CLIENT. 
 
 to Attorney. 
 
 any fault on his own. part work a forfeiture.'- It is the duty of the 
 attorney to communicate to his client an offer of compromise made 
 by the other side, and failure to do so with a view to obtainins; 
 further compensation precludes a recovery for the costs incurred.* 
 If an attorney has reasonable and probable grounds for commenc- 
 ing an action, and does so, but afterwards discovers that the cause 
 cannot be successfi^lly prosecuted, and desists, he is entitled to re- 
 cover his costs from his client.^ The contract of an attorney re- 
 tained to conduct an action is continuing, and, as a general rule, can 
 be determined by him only on reasonable notice.* In the absence 
 of express contract, an attorney can recover reasonable compen- 
 sation for his services upon a quantum meruit.^ The plaintiff, 
 under the general issue, must clearly establish his retainer, the per- 
 formance of the work, and that the charges are reasonable.® 
 
 1. In fact, in Myers v. Crockett, 14 
 Tex. 257, the court intimated that he 
 might recover the whole fee contracted 
 for, on the ground that the rule that a 
 readiness or tender of performance is 
 not equivalent to performance did not 
 properly apply to such cases. To en- 
 title him to compensation, the attorney 
 must have kept himself in readiness to 
 serve his client at any time during the 
 conduct of the cause, and if he accept a 
 retainer from the opposite side he can re- 
 cover no fee on the contract. Cantrell 
 V. Chism, 5 Sneed (Tenn ), 116. 
 
 If an attorney is prevented by his client 
 from cortipleting his employment, he will 
 be entitled to recover his fees as if the 
 contract was fully performed. Kersey v. 
 Garton, 77 Mo. 645. 
 
 Counsel who have prepared for hear- 
 ing are not deprived of their right to a 
 lull counsel fee by the fact, merely, that 
 the case was disposed of on grounds not 
 raised in the argument. Bates z*. Desen- 
 berg, 47 Mich. 643. 
 
 2. Weeks on Attys. § 336; Steel v. 
 Thomas, 8 Car. & P. 762. 
 
 3. Lawrence v. Potts, 6 Car. .S! P. 428. 
 
 4. Nicholls V. Wilson, 11 Mees. & W. 
 106; Harris v. Oslom, 2 Car. & M. 629. 
 
 He cannot sue for his bill until the ter- 
 mination of the suit; he may, however, 
 give a reasonable notice to his clients to 
 supply him with adequate funds, and in 
 case of refusal may sue him for his costs. 
 Whitehead i-.-Lord, 7 Ex. 6qi. 
 
 If a client repudiates his retainer, he 
 may bring an action for his costs without 
 waiting the completion of the suit. 
 Hawkins v. Cottrell, 27 L. J. Ex. 369; 
 Weeks on Attys. § 336. 
 
 6. Weeks on Attys. §§ 552, 563; Phelps 
 ■V. Hunt, 40 Conn. 97. 
 
 When more than one attorney is em- 
 ployed, in the absence of proof to the 
 
 contrary the presumption is that they 
 share the fee equally. Hurst v. Durneil, 
 I Wash. 438. 
 
 Where the rate of compensation is fixed 
 by statute, the law implies a promise to 
 pay at least the statute rate of compen- 
 sation; it rests with the client to prove 
 that the attorney undertook to do the 
 work for less. Such an agreement should 
 be made out by evidence equal to a pos- 
 itive declaration. Brady v. Mayor, i 
 Sand^. (N.Y.) 569; Weeks on Attys. § 553. 
 
 6. The service must be performed by 
 virtue of the retainer. A trustee will 
 not be entitled to recover costs for pro- 
 fessional services performed in the 
 character of trustee for a party, unless 
 express provision to that effect is made 
 in the trust deed. In re Sherwood, 3 
 Beav. 338; Cochran v. Newton, 5 Denio 
 (N. Y.), 482. 
 
 But services of counsel employed by a 
 trustee to protect the income of a spend- 
 thrift trust from the creditors of the 
 cestui que trust are necessary for the pres- 
 ervation of the trust, and should be com- 
 pensated out of the income. The death 
 or discharge of the trustee will not de- 
 prive counsel of payment for such ser- 
 vices. Manderson v. Guarantee Co., 5 
 Cent. Repr. (Pa.) 214. 
 
 That an attorney is employed as an 
 agent to negotiate loans does not preclude 
 him from rendering professional services, 
 if requested by his principal, and if so 
 rendered he is entitled to recover the 
 reasonable value thereof upon the implied 
 contract. Insurance Co. v. Buchanan, 
 100 Ind. 63. 
 
 An attorney may recover for services 
 rendered to a corporation though he be a 
 stockholder, and the presumption is that 
 his services were legal, Reynolds v. Mc- 
 Millan, 63 111. 46. See also Ward v. 
 Craig, 87 N. Y. 550. 
 
 966 
 
Xiability to Attorney. ATTORNEY AND CLIENT. Express Contract. 
 
 Upon a quantum meruit iox professional services, the professional 
 standing of the attorney is a proper subject of inquiry. ^ The 
 measure of compensation is said to be the exercise of legal 
 knowledge, the responsibility incurred, and the labor bestowed, 
 and sometimes the amount involved is also considered.* 
 
 12. Express Contract. — So long as it is neither oppressive nor 
 champertous,* an attorney may make any manner of contract with 
 
 Bt'okers who were also attorneys were 
 held not entitled to charge counsel fees 
 for services about the business of their 
 employer in relation to lands in their 
 hands as such brokers. Walker v. Amer- 
 ican Nat. Bank. 49 N. Y. 659; Dyer v. 
 Sutherland, 75 111. 583. 
 
 Nor can a receiver act as his own 
 counsel so as to charge the estate for his 
 services. Bank of Niagara Case, 6 Paige 
 (N. Y.). 213; McGourky v. Downs, MS. 
 N. J. Chan. May Term, 1880. See Adams 
 -V. Woods, 8 Cal. 306. 
 
 Nor can one member of a partnership 
 who is an attorney charge the others for 
 professional services about the firm's af- 
 fairs, either before or after dissolution. 
 Milburn v. Codd, 7 B. & C. 419; Van 
 Duzer v. McMillan, 37 Ga. 299; Mc- 
 •Crary v. Ruddick, 33 Iowa, 521. 
 
 Nor can an attorney who is a mortga- 
 gee recover his costs on his own fore- 
 closure. Sclaterz/. Cottam, 3 Jur. (N. S.) 
 630: Patterson v. Donner, 48 Cal. 369. 
 
 Nor can a solicitor who has an interest 
 in attending to a cause charge for his 
 services without an express agreement. 
 Martin u. Campbell, 11 Rich. Eq. S. Car. 
 205. See Deere v. Robinson, 7 Hare, 283. 
 
 But he would be liable for costs. Voor- 
 hees V. McCartney, 51 N. Y. 387; Cone 
 ■V. Donaldson, 47 Pa. St. 363. 
 
 A director of acorporation who brought 
 suit as an attorney against such corpora- 
 tion, was held entitled to costs. Christie 
 'u. Sawyer, 44 N. H. 298. 
 
 As to a stockholder sustaining such 
 relation, see Spence v. Whitaker, 3 Port. 
 <Ala.) 297. 
 
 An attorney can recover ordinary wit- 
 ness fees when he offers himself as a 
 witness in his own case. Leaver v. 
 Whalley, 2 Dowl. 80; Taaks v. Schmidt, 
 25 How. Pr. (N. Y.) 340. Or is called in 
 another's case during his regular attend- 
 ance at that terra. Parks v. Brewer, 14 
 Pick. (Mass.) 192; Marshall v. Parsons, 4 
 Jur. 1017: Abbott v. Johnson. 47 Wis. 239. 
 
 But fees when so in attendance were 
 refused in McWilliams v. Hopkins, i 
 Whart. (Pa.) 276; Crummer v. Huff, I 
 "Wend. (N. Y.) 25; Jones v. Boisford, i 
 Pug. & Bur. 581. See Reynolds v. 
 Warner, 7 Hill (N. Y.), 144. 
 
 1. Weeks on Attys. § 563. 
 
 967 
 
 The amount of his professional busi- 
 ness may be inquired into as tending to 
 show his professional standing. Phelps 
 V. Hunt, 40 Conn. 97. 
 
 An attorney called as an expert as to 
 the value of professional services cannot 
 be asked as to the income derived by 
 himself in the practice of his profession. 
 Harland v. Liiienthal, 53 N. Y. 438. 
 
 2. Succession of Virgin, 18 La. Ann. 42. 
 As to reasonable compensation in the 
 
 absence of express contract, see Webb 
 V. Browning, 14 Mo. 354; Smith v. 
 Davis, 45 N. H. 566. 
 
 The loss of other business may be taken 
 into consideration. Quint v. Ophir, 
 4 Nev. 304. 
 
 On implied assumpsit for professional 
 services the rate of compensation is in 
 proportion to the labor expended, inde- 
 pendent of the benefit received. Weeks 
 on Attys. § 577; Foster v. Jack, 4 Watts 
 (Pa.), 339. 
 
 The court should not receive testimony 
 of the value of such services for adminis- 
 tering an estate; it should fix the value of 
 them on its own responsibility. Dorsey 
 V. Creditors. 5 Martin (La.), 399; Baldwin 
 V. Carleton, 15 La. 395. 
 
 The attorney may, by express under- 
 taking, limit the costs to a certain 
 amount, and cannot then recover more. 
 Moore, v. Hall, 17 Com. B. N. S. 760. 
 
 On a quantum meruit he is limited to 
 the valuation he himself attached to his 
 services in the special agreement. Mor- 
 gan V. Roberts, 38 111, 65. 
 
 3. Champerty is a bargain with a plain- 
 tiff or defendant, campum partiri, to 
 divide the land or other matter sued for 
 between them, if they prevail at law. 
 Whereupon the champertor is to carry 
 on the suit at his own expense. 4 Bl. 
 Com. 135*; 2 Bouv. Diet. (15th Ed.) 299; 
 
 2 Chit. Crim. Law, 284, n. (2). 
 
 Under this definition, to render a con- 
 tract champertpus the suit must be car- 
 ried on at the expense of the champertor. 
 This view is taken in Allard v. Lami- 
 rande, 29 Wis. 502; Bayard v. McLane, 
 
 3 Harr. (N. J.) 139; Moses v, Bagley, 55 
 Ga. 283; Duke v. Harper, 66 Mo. 51; 
 Orr v. Tanner, 12 R. I. 94; Coleman v. 
 Billings, 89 111. 183. 
 
 In Lathrop v. Amherst Bank, 9 Mete. 
 
Express Contract. ATTORNEY AND CLIENT. Express Contract. 
 
 his client,! and take his client's bond, note, or other obligation for 
 the amount of his stipulated fee ;* he may take assignments of debt,' 
 choses in action,* conveyances, mortgages, and all manner of secu- 
 rities.^ He may agree that his compensation shall be contingent 
 on the success of the litigation. <" Such an agreement operates as 
 an equitable assignment to the extent of the sum contained in the 
 agreement, of the funds recovered in the action, and the attor- 
 ney's right is superior to that of a subsequently attaching cred- 
 itor,'' and being in no sense a ''promise to answer for the debt, 
 default, or miscarriage of another," is not within the provisions of 
 the statute of frauds.*^ An attorney's claim to compensation out 
 of a judgment rendered in a suit in which he has been employed 
 will be protected against a fraudulent assignment of the chose in 
 action, if the assignee has notice of the attorney's claim. And if, 
 while the suit is yet in progress, the assignee should compromise 
 the claim and receive the money, he will be held liable for the 
 attorney's bill.' If an attorney's fee is contingent on success, and 
 
 (Mass.) 489; Scobey v. Ross, 13 Ind. 117; Burns, 14 Cent. L. J. 8q. See for further 
 Backus w. Byson. 4 Mich. 535; Rust v. " 
 Larue, 4 Litt. (Ky.) 419, followed by 
 Davis V. Sharron, 15 B. Men. (Ky.) 64 
 (decided, however, under a local statute), 
 it was held that it was not necessary that 
 the champertor carry on the suit at his 
 own expense, provided he was to receive 
 part of the subject-matter of the contro- 
 versy. These decisions are founded on 
 Coke's definition, Co. Litt. 368 b, followed 
 by Sir William Grant in Stevens v. Bag- 
 well, 15 Ves. 139. 
 
 For the English rule see Hilton v. 
 Woods, L. R. 4 Eq. 432. ' 
 
 Thurston v. Percival, I Pick. (Mass.), 
 415, is perhaps the leading case in 
 America. See also Martin v. Clarke, 8 
 R. L 389; Coquillard w. Bears, 21 Ind. 
 479; Elliott V. McClelland, 17 Ala. 206; 
 Weakley v. Hall, 13 Ohio, 167; Broad- 
 man V. Brown, 25 Iowa, 487. 
 
 The rule does not grow out of the rela- 
 tion of attorney and client. Spryce v. 
 Porter, 7 E. & B. 58. 
 
 It has been repudiated in California, 
 Arkansas, and New York. Hoffman v. 
 Vallejo, 45 Cal. 564; Ly tie w.' The State, < 
 17 Ark. 609; Voorhees v. Dorr, 51 Barb. 
 (N. Y.) 585. See also Richardson v. 
 Rowland, 40 Conn. 572. 
 
 Courts of the United States allow the 
 attorney to stipulate for a reasonable per 
 cent of the amount recovered as compen- 
 sation for services. Wright v. Tebbetts, 
 91 U. S. 252. 
 
 While as between the parties a cham- 
 
 discussion 13 Cent. L. J. 368, and 17 Am. 
 L. R. 759- 
 
 Where the special agreement is void 
 for champerty, recovery may be had on 
 quantum meruit. Weeks on Attys. § 345. 
 
 1. Yates V. Robinson. 80 Va. 475; 
 Badger z/. Gallaher, 113- 111. 662. 
 
 8. Mooney v. Lloyd, 5 S. & R.(Pa.) 412. 
 
 3. Ripley v. Bull. 19 Conn. 56; Tapley 
 V. Coffin, 12 Gray (Mass.), 420; Jeffres v. 
 Cochrane. 47 Barb. (N. Y.) 557. 
 
 4. Walker v. Clay, 21 Ala. 797; Mc- 
 Clain V. Williams, 8 Yerg. (Tenn.) 230; 
 Pennington v. Nave, 15 Ind. 323. 
 
 But such note is not collectible even 
 when it has been'assigned to an innocent 
 transferee, if the attorney has failed to 
 attend, either in person or by some other 
 competent attorney, and ' properly con- 
 duct the cause. Weedf.-Bond, 21 Ga. 195. 
 
 5. Weeks on Attys. § 346. 
 
 6. Stanton v. Embry, 93 U. S. 548; 
 AUard v. Lamirande, 29 Wis. 502; ]*4ew- 
 kirk V. Cone, 18 111. 449; Hitchings &. 
 Van Brunt. 38 N. Y. 335: Broadman v. 
 Brown, 25 Iowa, 489; McDonald v. Chi- 
 cago, etc., R. Co , 29 Iowa, 171. 
 
 In England an agreement for contin- 
 gent fees is champertous. Prince v. 
 Beattie, 32 L. J. Ch. N. S. 734; Earle v. 
 Hopwood, 10 C. B. N. S. 506. 
 
 7. Patten v. Wilson, 34 Pa. St. 299; 
 Weeks on Attorneys, § 355. 
 
 But not if the agreement is to give a 
 contingent fee out of a verdict to be re- 
 covered on an action for tort, a tort not 
 pertous contract is void, and neither can being assignable. Miller v. Haven, 18 
 enforce it, yet the defendant cannot set Cent. L. J. 97. 
 
 up as a defence the fact that a champer- 8. Fitch v. Garden ier, 2 Keyes (N. Y.), 
 tous contract had been entered into by 516; Weeks on Attys. §354- 
 the plaintiff's attorney. Allison v. C. & 9. Weeks on Attys. § 360; Christie v. 
 N. 'W. R., 4 Iowa, 274; Courtwright v. Sawyer, 44 N. H. 298. 
 
Liens. 
 
 ATTORNEY AND CLIENT. 
 
 Liens. 
 
 his client settles the suit without his consent, the attorney can 
 recover what his services are worth on a quantum meruit.^ A 
 court of equity will not enforce in favor of a solicitor a security 
 taken from his client pending a suit, foT anything beyond the sum 
 actually due.* An attorney cannot, during the existence of the 
 relation between himself and his client, make a binding contract 
 with his client to secure to himself greater compensation for his 
 services than was agreed upon when the relation commenced.^ 
 
 13. Liens. — An attorney has a general or retaining lien for a bal- 
 ance due him in his professional employment upon all papers and 
 documents which come to him * by reason of his professional char- 
 acter. When papers come into thehands of an attorney for profes- 
 sional services, the particular object for which they were intrusted 
 to him is immaterial, unless it is expressly agreed to the contrary, 
 or unless there is something in the nature of the transaction which 
 forbids the idea of a lien.^ Where deeds are delivered for the 
 purpose of conducting a suit, the general lien prevails, but when 
 they are delivered for a specific purpose there can be no lien be- 
 yond that purpose.^ The restricted and qualified possession ex- 
 cludes the idea of a general lien.'' But if the property be allowed 
 to remain in the attorney's hands, after the specific purpose for 
 which it is left is fulfilled, the general lien will attach.* The lien 
 which an attorney has is only commensurate with the rights 
 which the party delivering the deeds has therein.* An attorney 
 
 1. Quint V. Sawyer, 4 Nev. 305. 
 
 2. Saunderson v. Glass, 2 Atk. 297. 
 No attorney can take anything from 
 
 his client pending the suit save his de- 
 mand. Hylton V. Hylton, 2 Ves., Sr. 
 259, 547; Wood V. Donnas, 13 Ves. 120; 
 Mott V. Harrington, 12 Vt. 199; Weeks 
 on Attys. § 363. 
 
 3. Weeks on Attys. § 364. 
 
 But an attorney is allowed to enter into 
 contracts with his client upon any matter 
 which is not the object of his concern as 
 attorney. His employment in one suit 
 does not deprive him, while it is pending, 
 of his right to make a contract for com- 
 pensation for services in another, or 
 for any other professional business with 
 the same client. Lecatt v. Salle, 3 Port. 
 (Ala.) 115. 
 
 The remedy for compensation is by 
 action, and not by summary application 
 in the original suit.' Lannett v. R. Co., 
 II West. L. Rep. 690. 
 
 4. Stevenson v. Blacklock, i Maule. & 
 S. 535; St. John». Diefendorf, 12 Wend. 
 (N. Y.) 261; In re Broomhead, 16 L. J. Q. 
 B. 355; Dennett v. Cutts. 11 N. H. 163; 
 Walker v. Sargeant, 14 Vt. 247; Ward v. 
 Craig, 87 N. Y. 551; Robinson v. Hawes, 
 56 Mich. 135: Weeks on Attys. § 371. 
 
 Two things are requisite to entitle the at- 
 torney to this lien, (i) The balance must. 
 be due in his professional employment: 
 
 (2) the papers must be acquired in his 
 professional character. It does not at- 
 tach for money lent. Walker v. Sargeant, 
 14 Vt. 247. 
 
 Nor upon documents acquired as 
 prochein ami. Montague on Liens, I, 53. 
 
 Wharton divides attorney's liens into 
 retaining and charging, Wharton on 
 Agency, § 623, et seq. 
 
 5. Ex parte. Sterling, 16 Ves. 258; 
 Stevenson v. Blackloclc, i Maule. & S. 
 535; Balch V. Symes, i Turn. & R. 87; 
 Lawson v. Dickinson, 8 Mod. 307. 
 
 6. If the writings were delivered for a 
 special purpose, the attorney cannot de- 
 tain them for another demand, as where 
 they were delivered for the purpose of 
 preparing a mortgage, the attorney has 
 not as against the mortgagee a general 
 lien for a demand against the mortgagor. 
 Lawson v. Dickinson, 8 Mod, 306. 
 
 7. Judson V. Etheridge; i Cromp. & 
 M. 473; Jackson v. Cummings, 5 Mees. 
 & W. 542. 
 
 8. Ex parte Pemberton, 18 Ves. 382; 
 Ex parte Sterling, 16 Ves. 258; Weeks on 
 Altys. § 371. 
 
 9. HoUis V. Claridge, 4 Taun. 807. 
 
 A solicitor has no lien against a re- 
 mainder man on deeds put into his hands 
 by the tenant for life. Ex parte Nesbitt, 
 2 Shoales & L. 279. 
 
 The lien'extends to a representative of 
 
 969 
 
Xiens. 
 
 ATTORNEY AND CLIENT. 
 
 Liens. 
 
 has also a retaining Hen on funds in his hands for his fees and dis- 
 bursements in the cause. ^ 
 
 Charging Lien. — The charging lien is a special lien to which an 
 attorney or solicitor is entitled upon funds in court recovered 
 through his exertions.* " The lien attaches on the fruits of a judg- 
 ment or decree.* It attaches to the money payable to the client 
 thereunder, or by virtue of an award,* and to money paid or pay- 
 able into court in the course of an action or suit, or in any other 
 way, if the proceeds of the labor and skill of an attorney."^ The 
 hen has been held to attach on sums received or payable by way 
 of compromise to the client in a cause, everi when the verdict and 
 
 ble proceedings. Bartree v. Watson, 2 
 Keen (Eng.), 713; Jones v. Frost, L. R. 7 
 Ch. 773. 
 
 The lien cannot be defeated by the in- 
 solvency of the client or by his assign- 
 ment of the fund. His assignee in bank- 
 ruptcy or by purchase takes subject to 
 the -lien. But a court of equity, before 
 awarding any part of the fund in satisfac- 
 titori of the attorney's lien, will itaquire if 
 the fee is reasonable. McCain v. Portis, 
 42 Ark. 402; Central R. v. Pettus, 113 
 U. S. 116. 
 
 An attorney has no lien upon his cli- 
 ent's lands for services rendered in de- 
 fending against an effort to charge them 
 with the payment of the debt of another.^ 
 Shaw V. McNeale, 6 H. L. Cas. 581; Mc- 
 Williams t). Jenkins, 72 Ala. 480. 
 
 Nor for services in prosecuting a suit 
 in equity to establish the title. McCol- 
 lough V. Flourrioy, 69 Ala. i8g; Hanger 
 V. Fowler, 20 Ark. 667; Small z/. Clark, 
 22 Vt. 598; Cozzens v. Whitney, 3 R. I. 
 79; Humphrey v. Browning, 46 III. 476; 
 Martin v. Harrington, 57 Miss. 208. 
 
 In Iowa the attorney's lien upon judg- 
 ment does not attach upon land sold in 
 satisfaction of the judgment and bought 
 by the client. Wishard v. Biddle, 64 
 Iowa, 526. 
 
 In Brown v. Bigley, 3 Tenn. Ch. 618, 
 and Wilson v. Wright, 72 Ga. S45; the 
 lien was recognized. 
 
 To extend the lien to lands recovered 
 in a suit, it has been urged, would be to 
 create an equitable mortgage, and would 
 be opposed to the registry system. 21 
 Am. L. R. 82. 
 
 Nevertheless it was so extended in 
 England by 23 and 24 Vict. ch. 127, § 28. 
 
 3. .£.1 ^flj-fe Price, 2Ves., Sr. 407; Mit- 
 chell V. Oldfield, 4 T. R. 123; May v. Sib- 
 ley, 69 Ga. 133; Moseley v. Norman, 74 
 Ala. 422. 
 
 4. Tabian v. Horn, Moody & R. 228; 
 Omerod v. Sate, i East, 404. 
 
 6. Irving v. Viana, 2 Y. & Jer. 70; 
 •Barnesby v. Powell, Amb. (Eng.) 102. 
 
 a. deceased solicitor. Redfearn v. Sower- 
 by, I Swanst. 84. 
 
 1. In re Paschel, 10 Wall. (U. S.) 483; 
 In re Knapp, 85 N. Y. 284. 
 
 The principle is said to apply to any 
 suit or proceeding brought to recover 
 •other moneys covered by the same re- 
 tainer. In re Knapp, 85 N. Y. 284. See 
 .also Ins. Co. v. Buchanan, 100 Ind. 63. 
 
 An attorney has a lien on money in 
 -his possession collected for his client, to 
 secure a reasonable compensation for 
 professional services and disbursements; 
 and he can retain enough of the money 
 to pay the general balance due him for 
 :such services and disbursements, although 
 rendered in different suits; and when the 
 ■client has deceased before the rendition 
 of judgment, the lien secures charges 
 for services performed for the intestate, 
 as well as those performed for his admin- 
 istrator, who has entered to prosecute. 
 Hurlbert v. Brigham, 56 Vt. 368. 
 
 The lien may be lost or waived by set- 
 ting up an inconsistent claim, by parting 
 with the possession, by bringing an ac- 
 tion, or by taking other security. Weeks 
 ■on Attys. § 375 and cases cited. 
 
 If an attorney refuse to proceed with 
 his client's cause his lien is superseded, 
 -and he must allow the new attorney to 
 see the papers detained in his possession 
 until his bill is settled, at all reasonable 
 times, and he must himself attend with 
 them in court, or suffer the new attorney 
 to have them for that purpose. Creswell 
 ■V. Byron, 14 Ves. 271^ 
 
 But where the attorney has expended 
 ■costs, and the client discharges him, his 
 lien extends to refusing the use of the 
 papers to the client or his next solicitor. 
 Newton v. Harrington, 4 Scott N. S. 
 ^69. 
 
 2. This .lien has two characteristics: 
 <i) It is special; (2) it exists independ- 
 •ently of possession on the part of the 
 "holder. 20 Am. L. R. 822; Wharton on 
 Agency, § 623. 
 
 The lien exists in both legal and equita- 
 
 970 
 
ATTORNEY AND CLIENT. 
 
 Liens. 
 
 judgment are against him, for the money is regarded as the fruit 
 of the attorney's labor and skill.* It seems fairly well settled that 
 the lien does not attach till judgment,'-* and until the lien attaches 
 the parties can settle the suit regardless of the attorney's claim for 
 costs.* 
 
 If the client settles the case so as to deprive the attorney of 
 his costs, it is clear that the latter has redress against the former ; 
 and if the attorney notify the opposite party that he has an un- 
 satisfied claim, he can recover from such party the amount of the 
 claim where the settlement was collusive.* He has, however, 
 
 1. Davis V. Loundes, 3 Com. B. 827; 
 Hopewell v. Amwell, 2 Halst. (N. J.) 4. 
 
 Does the Lien cover Fees and Disburse- 
 ments, or only Costs I — In England an 
 attorney or solicitor can recover his tax- 
 able costs only. Weeks on Attys. § 370, 
 and cases. 
 
 In Wylie v. Coxe, 15 How. 415, the 
 United States Supreme Court decided 
 that an attorney employed to prosecute 
 a claim before a commission for a con- 
 tingent fee of five per cent had a lien for 
 this amount in the fund recovered, and 
 such a one as the court could enforce by 
 a bill in equity. 
 
 In several States the lien is held to 
 cover costs, advances, and fees. Strat- 
 ton V. Hussey, 62 Me. 286; Benjamin v. 
 Benjamin, 17 Conn, no; Hutchinson v. 
 Pettes, 18 Vt. 616; Martin v. Hawks, 
 15 Johns. 405; Bowling Green Bank v. 
 Todd. 52 N. Y. 489; Waters v. Grace, 
 23 Ark. 118; Carter v. Davis, 8 Fla. 183. 
 
 In some the lien is regulated by stat- 
 ute. Baker v. Cook, 11 Mass. 236; Citiz- 
 ens' Bank v. Culver, 54 N. H. 327. 
 
 In the other States the lien does not 
 exist, and the attorney is remitted to his 
 retaining lien against funds in his hands. 
 Hill V. Brinkley, 10 Ind. 102; Frissell v. 
 Haile, 18 Mo. 18; Dubois' App., 38 Pa. 
 St. 231; Simmons v. Almy, 103 Mass. 33. 
 
 In other courts the lien is limited in its 
 extent to statutory costs and disburse- 
 ments. Wells V. Hatch, 43 N. H. 246; 
 Cozzens v. Whitney, 3 R. I. 79; McDon- 
 ald V. Napier, 14 Ga. 89; Humphrey v. 
 Browning, 46 111. 476; Elwood v. Wilson, 
 21 Iowa, 523; Mansfield v. Dorland,2 Cal. 
 507; Dodd V. Brott, i Minn. 270. See 
 also Dennett v. Cutts, 11 N. H. 163; Citi- 
 zens' Nat. Bank v. Culver, 54 N. H. 327. 
 
 2. Potter z/. Mayo, 3 Greene (N. J.), 34; 
 Hobson z;. Watson, 34 Me. 20; Getchellw. 
 Clarke, 5 Mass. 309; Hutchinson v. Pet- 
 tes, 18 Vt. 616, Pinkerton v. Easton, L. 
 R. 16 Eq. 490; Henchey v. Chicago, 41 
 111. 136. See Casey w. March, 30 Tex. 180. 
 
 No lien exists m favor of attorneys of 
 distributees on a fund brought into court 
 ior distribution to the parties entitled. 
 
 McCaa v. Grant, 43 Ala. 262; Dubois, 
 App., 38 Pa. St. 231; In re Lamberson, 
 63 Barb. (N. Y.) 297. 
 
 3. 20 Am. L. R. 840 and cases; Yoak- 
 ley V. Hawley, 5 Lea. (Tenn.) 670. 
 
 An order of court after verdict that 
 judgment be entered on the verdict, is 
 deemed to be a judgment so far as to give 
 the attorney his lien, whether final judg- 
 ment be entered or not. 20 Am. L. R. 
 842. 
 
 Where, however, the action is founded 
 upon a negotiable instrument or a con- 
 tract in writing, which is in the attorney's 
 possession, the lien attaches to the con- 
 tract before judgment, and his client can 
 make no settlement or assignment of the 
 action without discharging the attorney's 
 fees. Coughlin z/. N. Y. C. &H. Riv. R., 
 71 N. Y. 443. 449 ; Kusterer v. City of 
 Beaver Dam. 56 Wis. 471; Dennett v. 
 Cutts, II N. H. 163. 
 
 The lien in such cases attaches from 
 the time the contract is delivered to the 
 attorney and he commences the action. 
 In such case the lien attaches not only 
 for the attorney's services rendered in 
 that particular suit, but also for his gen- 
 eral account for professional services 
 rendered the client. The settlement or 
 assignment is subject to the attorney's 
 general lien. Schwartz v. Jenney, 21 
 Hun (N.Y.), 33. 
 
 In such cases the rule that a bona-fide 
 settlement, payment, or assignment with- 
 out notice of the attorney'^ lien prevails 
 against the lien, has no application; 
 neither has the rule that the attorney's 
 lien upon judgment yields to the right of 
 set-off of the opposite party. Schwartz 
 V. Jenney, 21 Hun (N. Y.), 33. 
 
 4. Wharton on Agency, § 627; Barker 
 V. St. Quintin, 12 Mees. & W. 440; Foot 
 V. Tewksbury, 2 Vt. 97; Currier v. R. 
 Co., 37 N. H. 223; McGregor j;. Com- 
 stock, 28 N. Y. 237; McKenzie v. Ward- 
 well, 61 Me. 136; Pleasants v. Kortrecht, 
 5 Heisk. (Tenn.) 694. 
 
 The mere fact that the parties made the 
 settlement after verdict, but before judg- 
 ment entered, is not conclusive evidence 
 
 971 
 
Lien. 
 
 ATTORNEY AND CLIENT. 
 
 Lien. 
 
 no such right if he give no such notice.^ But the right exists 
 though the notice be informal and constructive.** Where the 
 judgment is for costs alone, the record is sufficient notice to all 
 parties.* The lien of an attorney upon a judgment is upon the 
 interest of his client in the judgment, and is subject to an existing 
 right of set-off in the other party to the suit.* Where there has 
 been a collusive settlement of the cause, and the settlement is of 
 record, the attorney may move to set it aside, or if the settlement 
 
 E. 456; Glaiscer v. Hewes, 8 Durn. & E. 
 69; Middleton v. Hill, Maule & S. 240; 
 Aspinwall v. Stamp, 4 Dowl. & R. 716; 
 Nunez v. Modigliani, I H. Black. 217; 
 Hall V. Ody, 2 Bos. & P. 28; Mitchel v. 
 Oldfield, 4 Durn. & E. 123,; Stevens v. 
 Weston, 5 Dowl. & R. 399; Howell v, 
 Harding, 8 East, 362; Emdin v. Darlin, 
 I New Rep. 22 ; Brown v. Sayce, 4 
 Taunt. 320; Tomes v. Miller, 5 Moor. 95; 
 Moseley v. Norman, 74 Ala. 422; Watson 
 V. Smith, 63 Iowa, 228; State v. Irons, 
 54 Ind. 13: People v. N. Y. C. P. 13 
 Wend. (N. Y.) 649. 
 
 Set-off. — In Kentucky the lien of the 
 attorney attaches at the commencement 
 of the suit, and cannot be affected by 
 subsequently acquired set-offs. Robert- 
 son V. Shutt, 9 Bush (Ky.), 660. 
 
 The following cases deny the right of 
 set-off. Stratton v. Hussey, 62 IVIe. 288; 
 Currier v. R., 37 N. H. 223; Johnson v. 
 Ballard, 44 Ind. 270; Boyer v. Clark, 3 
 Neb. 161; Carter v. Davis, 8 Fla. 183. 
 
 In England no set-off was allowed in 
 the King's Bench to prejudice the attor- 
 ney's lien for his costs. In Common 
 Pleas and in the Court of Chancery the 
 right of set-off was distinctly recognized. 
 Roberts v. Bull, L. R. 8 Ch. D. 198. 
 
 In 1853 the rule in King's Bench was 
 made applicable to all the courts. Rule 
 63, General Rules of Hil. T. 1853. 
 
 But in 1873 the equitable rule was es- 
 tablished for all the courts under the Su- 
 preme Court Judicature Act, sec. 4. 21 
 Am. L. R. 74. 
 
 In America the equitable rule gener- 
 ally prevails. 21 Am. L. R. 75 and 
 cases. See also Fairbank v. Devereux, 
 58 Vt. 359. 
 
 Even in equity a judgment for costs 
 alone is not subject to set-off by another 
 judgment for costs in a different matter, 
 so as to interfere with the attorney's lien 
 for costs. Roberts v. Bull, L. R. 8 Ch. 
 D. 198. 
 
 ' Where a set- off has been allowed by 
 the court, the attorney cannot after delay 
 interfere at a subsequent term of the 
 court. Holt V. Quainby, 6 N. H. 79. 
 
 An assignment of a judgment by the 
 judgment creditor to his attorney in pay- 
 ment of or as security for his fees in the 
 
 of collusion ; something more must be 
 shown. Wade v. Orton, 12 Abb. Pr. N. 
 
 S.(N.Y.)444. 
 
 1. Green v. Express Co., 39 Ga. 20; 
 McDowell V. R., 4 Bosw. (N. Y.) 670; 
 People V. Hardenburgh, 8 T. R. 335; 
 Braden v. Ward, 42 N. J. L. 518. See 
 also St. Louis & San Francisco R. R. v. 
 Bennett, 35 Kan. 395 ; Boston & Colorado 
 Smelting Co. v. Pless, 10 Pac. Rep. 652. 
 
 But if the judgment debtor acts in col- 
 lusion with the creditor, and pays with 
 the intention of cheating the attorney out 
 of his lien, the debtor is not protected in 
 making such payment, though he has re- 
 ceived no actual notice of the lien. Heart 
 V. Chipman, 2 Aik. (Vt). 162; Heister v. 
 Mount, 17 N. J. 438; Howard v. Osceola, 
 22 Wis.' 453; Rosquin v. Knickerbocker 
 Stage Co., 12 Abb. Pr, (N. Y.) 324, 
 
 a, Abell V. Potts, 3 Esp. (Eng.) 242; 
 Reed v. Dupper, 6 Term Rep, 361; Lake 
 V. Ingham, 3 Vt, 158; Young v. Dear- 
 born, 27 N. H, 324, 
 
 But the mere fact that an attorney ap- 
 pears in a cause is not sufficient notice of 
 his lien, 36 Ga. 629. 
 
 3. Read v. Dupper, 6 T. R. 361; Mc- 
 Gregor V. Comstock, 28 Nj Y. 237; Ma;-- 
 shall V. Meech, 51 N, Y. 140; Stratton v. 
 Hussey, 62 Me. 286. 
 
 When the judgment is for damages as 
 well as for costs, the attorney should give 
 notice of his lien to the judgment debtor, 
 otherwise he will not be protected. Read 
 V. Dupper, 6 T. R. 361; Pulver v. Har- 
 ris, 52 N. Y. 73. 
 
 Where by statute the lien exists from 
 time of giving notice, the parties acting 
 in good faith may make a valid settle- 
 ment at any time before the notice is 
 given in the manner prescribed. Cason 
 V. Sargeant, 7 Iowa, 317; Green v. Ex- 
 press Co., 39 Ga. 20. 
 
 The notice should be given to the ad- 
 verse party personally, and not to his at- 
 torney. Boston & Colo. Smelting Co. 
 V. Pless, 10 Pac. Rep. 652. 
 
 4. 21 Am. L. R. 75. 
 
 The Court of Chancery will not inter- 
 pose the lien further than upon the clear 
 balance, which is the result of the equity 
 between the parties. Taylor v. Popham, 
 15 Ves. 75; Randall v. Fuller, 6 Durn. & 
 
 973 
 
Lien. 
 
 ATTORNEY AND CLIENT. 
 
 Lien. 
 
 be before judgment, he may treat it as a nullity and proceed with 
 the suit.^ 
 
 suit is effectual to prevent a set-o£f 
 against such judgment of another judg- 
 ment previously received by the judgment 
 debtor against the judgment creditor. 
 Benjamin v. Benjamin, 17 Conn, no; 
 Rumril v. Huntingdon, 5 Day (Conn.), 
 163. 
 
 The attorney's claim in such case is 
 not one of lien but of ownership, and the 
 lien is merged in the ownership. Dodd 
 V. Brott, I Minn. 270; Nay lor v Lane, 18 
 J. S. (N. Y.) 97; Terney v. Wilson, 16 Vt. 
 282; Shapley v. Bellows, 4 N. H. 347; 
 Dunkin v. Vandenbergh, i Paige (N. Y.), 
 622; Gridley v. Garrison, 4 Paige (N. Y.), 
 647 (but see Nicoll v. Nicoll, 16 Wend. 
 (N. Y.) 446); Zogbaum v. Parker, 55 N.Y. 
 120; Firmenich v. Bovee, i Hun (N. Y.), 
 532; Prouty V. Swift, lo Hun (N. Y.), 232; 
 Davidson v. Alfaro, 16 Hun (N. Y.), 353; 
 s. c, 80 N. Y. 660; Eberhardt v. Schuster, 
 10 Abb. N. C. (N. Y.) 374; Currier v. 
 Boston R., 37 N. H. 223; Boyer v. 
 Clark, 3 Neb. 161. 
 
 An agreement between the client and 
 attorney that the attorney shall have a 
 lien for his services to a certain amount 
 constitutes a valid equitable assignment 
 of the judgment /;-o tanto which attaches 
 to the judgment as soon as entered. 21 
 Am. L. R. 79. See also Stewart v. Hil- 
 ton, 19 Blatchf. (U. S.) 290. 
 
 Such agreement may be by parol. 
 Williams v. IngersoU, 89 N. Y. 518; 
 Freeholders v. Bank, 38 N. J. Eq. 36. 
 See also Langworth v. Hendy, 2 Dis. 
 (Ohio) 73; Cunningham v. McGrady, 2 
 Baxt. (Tenn.) 141. 
 
 But there can be no lien before judg- 
 ment where the cause of action is not 
 assignable. Kusterer v. City of Beaver 
 Dam, 56 Wis. 471. 
 
 An attorney's lien is superior to that of 
 a subsequent attaching creditor. Ex 
 parte Moule, 5 Madd. 462; Damron v. 
 Robertson, 12 Lea (Tenn.), 372; Miller v. 
 Newell, 20 S. Car. 123; Weed v. Bou- 
 telle, 56 Vt. 581. 
 
 Bankruptcy or insolvency does not 
 discharge the lien. Cook v. Tresher, 51 
 Conn. 105. 
 
 The assignee takes the property sub- 
 ject to the lien. In re Bailey, 66 How. 
 Pr (N. Y.) 64. 
 
 But as against the judgment debtor 
 the lien upon the judgment is discharged 
 with the judgment, like any other debt, by 
 a discharge in bankruptcy or insolvency. 
 Blumenthal v. Anderson, 91 N. Y. 171. 
 
 Waiver. — The lien may be waived by 
 any arrangement between the attorney 
 and client which shows clearly and une- 
 
 quivocally an intention to rely upon some 
 other security or mode of payment. 
 Renick v. Ludington, 16 W. Va. 378. 
 
 The lien is waived by the attorney's 
 procuring a transfer to his client of land 
 attached in the suit in satisfaction of the 
 judgment. The lien on the judgment 
 does not follow the land when the title is 
 perfected in the client. Cowen v. Boone, 
 48 Iowa, 350. 
 
 The lien upon a judgment is not dis- 
 charged by delay in collecting it, though 
 the delay be for several years. Stone v. 
 Hydes, 22 Me. 318. 
 
 Nor though the claim be barred by the 
 statute of limitations. Higgins v. Scott, 
 2 B. & Ad. 413. 
 
 Nor by allowing the claim to become 
 dormant so that it has to be revived by 
 other attorneys. Jenkins v. Stephens, 66 
 Ga. 216. 
 
 Nor by receiving or collecting a part 
 of the judgment, and paying over the 
 part so collected to his client without de- 
 ducting his fees. He can enforce his 
 lien upon the balance of the judgment. 
 Hooper v. Brundage, 22 Me. 460. 
 
 1. Jones V. Bonner, 2 Ex. 229; Rov- 
 ney v. Railroad, 18 N. Y. 368; Swain v. 
 Senate, 5 Bosw. & P. 99; Pabuck v. 
 Leach, 3 McCrary, 555; Reynolds v. 
 Reynolds, 10 Neb. 574; Wright v. Bur- 
 roughs, 3 C. B. 344. See Quinnan v. 
 Clapp, 10 Abb. N. C. 394. See Connor 
 V. Boyd, 73 Ala. 385. 
 
 As to bona-fide settlements before judg- 
 ment and without notice, see Simmons 
 V. Almy, 103 Mass. 33. 
 
 An application on the part of the at- 
 torney to vacate satisfaction of judgment 
 should be promptly made. Quimby v. 
 Quimby, 6 N. H. 79. 
 
 After the litigation has ended and the 
 client has possessed himself of the entire 
 fund recovered, the court has no power 
 to give relief to the attorney. Whittle v. 
 Newman, 34 Ga. 329. 
 
 An application to the court by an at- 
 torney to protect his lien upon a judg- 
 ment is addressed to the sound discretion 
 of the court. Adams v. Fox, 40 Barb. 
 (N. Y.) 442. 
 
 In Indiana the complaint must allege 
 the amount of fees due either by stating 
 the contract with the client respecting 
 the fees or by averring value of services. 
 Dunning v. Galloway, 47 Ind. 182. 
 
 Under the present practice in New 
 York the attorney is entitled to proceed 
 with the action without first obtaining 
 leave of court. Forstman v. Schulting, 
 35 Hun (N. Y.), 504. 
 
 973 
 
Definition. 
 
 A TTORNE Y- GENERAL. 
 
 Sefiuition. 
 
 ATTORNEY-GENERAL.— 1. Definition.— In English law the attor- 
 ney-general is a great officer under the king, created by letters- 
 patent, whose office is to exhibit informations and prosecute for 
 the crown in matters criminal ; to file bills in the Exchequer in 
 any matter concerning the king's revenue ; others may file bills 
 against the king's attorney.^ In America in each State there is 
 an attorney-general or similar officer who appears for the people, 
 as in England the attorney-general appears for the crown.* 
 
 Formerly leave of court was necessary. 
 Goddard v. Trenbath, 24 Hun(N.Y.), 182. 
 
 The court will not make an order prac- 
 tically enforcing the lien without notice 
 or proper hearing of clients. Atty.- 
 Gen. V. N. Am. L. Ins. Co., 93 N. Y. 
 
 387. 
 
 1. Bouv. Diet. 206. 
 
 2. Bouv. Diet. 2o5. 
 
 It is generally made the duty of 
 the attorney-generai to represent the 
 State in all suits in the Superior 
 Court and to inquire into the charter 
 rights of all private corporations, and 
 when necessary or expedient to test 
 their rights by quo warranto or by filing 
 a bill for an injunction to restrain them 
 from exceeding their powers or creating 
 a public nuisance. Const, of Texas; 
 State V. Paris R., 55 Tex. 76. 
 
 The bringing of a quo warranto, or fil- 
 ing a bill of injunction against a corpora- 
 tion is a matter of discretion: State v. 
 Paris R.,, 5 5 Tex. 76; People z). Fair- 
 child, 67 N. Y. 334. And therefore a 
 statute authorizing county attorneys " to 
 represent the State in all cases in the 
 district and inferior courts in their respec- 
 tive counties" does not authorize them 
 to bring suit at the relation of private 
 parties against a corporation' to enjoin it 
 from exceeding its powers and commit- 
 ting a nuisance, except the suit be 
 brought with the sanction and in the 
 name of the attorney-general. State v. 
 Paris R., 55 Tex. 76. 
 
 Under section 1948 of New York Code 
 of Civil Procedure, which applies to 
 intrusion into an office or franchise, an 
 action can 'only be brought without leave 
 of court against persons assuming to act 
 as a corporation in the State without be- 
 ing duly incorporated. If the action is 
 brought under § 17^8, which applies to 
 the abuse of a franchise, leave is neces- 
 sary. People V. Boston, Hoosac Tun- 
 nel & Western R., 27 Hun (N. Y.), 528. 
 
 In Colorado an action for the usurpa- 
 tion of an office or franchise is a civil 
 action under the Code of the State, and 
 must be governed by the rules applicable 
 thereto; must be instituted by filing a 
 complaint and issuing a summons, and 
 
 proceeded with the same as any other 
 action. Atchison, etc., R. v. People, 5 
 Colo. Rep. 6; o. c, 9 Am. & Eng. R. R. 
 Cas. 542. 
 
 In matters not of discretion the attor- 
 ney-general may employ associate coun- 
 sel, 28 Miss. 906. And may entirust the 
 whole case to their management. State 
 V. Anderson, 29 La. Ann. 774. 
 
 But in New York it has been held that 
 the employment of additional counsel is 
 limited to the cases specified in the act, 
 and hence where a statute authorizes the 
 attorney-general to appear by special or 
 local counsel at the General and Special 
 Term, such appearance is unauthorized 
 on the trial of a case at the Circuit Court. 
 People V. Met. Telephone & Telegraph 
 Co., 64 How. Pr. (N. Y.)66. 
 
 In Colorado section 1103 of the Gen- 
 eral Laws limits the duties of the attorney- 
 general to State cases instituted or pend- 
 ing in the Supreme Court of the State. 
 His duty to appear in State cases in in- 
 ferior courts would be obligatory only 
 when required to do so by the Governor 
 or General Assembly. Atchison, etc., 
 R. V. People, 5 Colo. 6; s. c, 9 Am. & 
 Eng. R. R. Cas. 542. 
 
 Attorney-General— Powers and Duties 
 of — Legislative Power Over. — Although 
 the attorney-general is classed by the 
 constitution as belonging to the execu- 
 tive department, and district and county 
 attorneys are classed as belonging to the 
 judicial department, the legislature, un- 
 der the clause declaring that the attor- 
 ney-general "shall, perform such other 
 duties as maybe required by law," had 
 the p'ower to make that officer the adviser 
 of district and county attorneys, and the 
 representative of the State in suits for 
 the recovery of money due the State in 
 counties in which there are no district or 
 county attorneys. State v. Moore, 57 
 Tex. 307. I 
 
 The legislature, however, cannot 
 empower the attorney-general to take 
 control of cases in which the con- 
 stitution makes thfe county or district 
 attorneys the representative of the State, 
 nor can it empower him to deprive those 
 officers of the fees which are by law al- 
 
 974 
 
Attorney-General of A TTORNE Y- GENERAL. 
 
 the TTnited States. 
 
 2. Attorney- General of the United States. — The Act of Sept. 24^ 
 1789, in organizing the judicial business of the United States,, 
 makes provision for an attorney-general to prosecute and conduct 
 all suits in the Supreme Court, in which the United States shall 
 be concerned, and to give his advice and opinion upon questions 
 
 decree concerning a public charity, unless 
 the general law officer representing the 
 donees is a. party in some way. Ex- 
 ceptional cases ai«, where the charity or 
 bounty is in the hands of trustees charged 
 by the donor specifically with its manage- 
 ment for the cestuis que trust. A testator 
 provided in his will that upon the hap- 
 pening of acertain contingency his entire- 
 estate should be divided into two equal 
 portions by his executors, and one half 
 thereof devoted to a public library, and. 
 the other half given to certain relatives, 
 as his devisees, and a bill was filed by 
 certain of his heirs, claiming to be the 
 donees of one-half of the estate, for a- 
 division and distribution of their shares, 
 and for a construction of the will as to- 
 the right to an immediate distribution, 
 but not asking any advice of the court as 
 to the management of the bounty to the 
 public, and not intimating that the trus- 
 tees who were specifically charged with 
 its management were in any manner- 
 wasting or mismanaging the fund. Held, 
 that there was no necessity to have made- 
 the attorney-general a party to the bill. 
 Had it appeared the trustees were mis- 
 appropriating the trust fund, it would no- 
 doubt have been the duty of the attorney- 
 general to interpose for its preservation. 
 It is only where the trustees having 
 charge of the fund unite in an abuse of 
 their trust, and there is no one having a. 
 right to sue in his own name concerning 
 it, as is the case with regard to a public- 
 charity, that the suit must of necessity be- 
 instituted by the attorney-general. There 
 is a distinction where tnistees of a charity 
 are appointed by the donor, and where 
 none are appointed, but there is a devise 
 immediately to charitable uses. In the 
 latter case there can be no decree unless, 
 the attorney-general be made a party, but. 
 otherwise where trustees are appointed 
 by the donor. Newberry v. Blatchford, 
 106 III. 584. 
 
 In determining whether or not an ac- 
 tion shall be brought, the functions of the- 
 State's attorney are judicial, and hence it 
 is highly improper for him to bring aa 
 action under a statute awarding the- 
 amount of the fine or penalty to the pros- 
 ecutor; by so doing he is attempting to. 
 enforce the penal laws for his own gain. 
 People z;. W. St. Louis & Pac. R., 12 111. 
 App. 262. 
 
 lowed in such cases. State v. Moore, 57 
 Tex. 307. 
 
 The attorney-general has not authority 
 of himself to settle tax-executions at less 
 than their full amount; such authority 
 must come from the State in order to 
 bind it. Georgia v. South-Western R., 
 66 Ga. 403. 
 
 In the New Orleans & Carrolton .R. 
 V. New Orleans the city brought suit 
 against the company to have the franchise 
 annulled, contending that by the terms 
 of the charter the franchise had expired 
 through lapse of time. The attorney- 
 general intervened, and in the name of 
 the State assented to the construction of 
 contract contended for by the defendant, 
 making the point that as the parties to the 
 contract were agreed upon its .construc- 
 tion, the city, being a stranger thereto, 
 could not question it. It was held that 
 the legislature alone could assent to such 
 a construction, and that unless made by 
 special legislative authority, the attorney- 
 general exceeded his powers in making 
 such admission, and the State was not 
 bound thereby. 34 La. Ann. 429. 
 
 The attorney-general cannot bring the 
 action where the defendant is a private 
 stock corporation, and no violation of the 
 provisions of its charter is alleged; and 
 the only object of the proceeding is to 
 determine who are entitled to vote at 
 elections for trustees or at other cor- 
 porate meetings of the stockholders. In 
 such case the remedy is by private action 
 of the parties aggrieved. Attorney-Gen- 
 eral ex rel. Saunders v. Albion Academy 
 & Normal Institute et al., 52 Wis. 469. 
 
 Under the Revised Statutes of Wis- 
 consin, §§ 3237, 3239, the attorney-gen- 
 eral has no right to intervene where the 
 defendant is an incorporated academy or 
 select school. Attorney-General ex rel. 
 Saunders v. Albion Academy & Normal 
 Institute et al. , 52 Wis. 469. 
 
 In all bills asking the advice or di- 
 rection of a court of equity as to the ad- 
 ministration of a public charity, and 
 especially where waste or mismanage- 
 ment is apprehended, or where the decree 
 will affect the interests of the cestuis que 
 trust, the attorney-general, or other 
 public officer whose duty it may be to 
 have a care in such matters, is a proper 
 party, either as complainant or defend- 
 ant. Courts not infrequently hesitate to 
 
 975 
 
Attorney-General of A TTORNE V- GENERAL. the United States. 
 
 of law, when required by the President or when requested by the 
 heads of departments, touching any matter which concerns their 
 departments.^ In the discharge of second class of the above- 
 mentioned duties the action of the attorney-general is quasi 
 judicial. His opinions ofificially define the law, and his decision is 
 in practice final and conclusive.'-* " The Supreme Court will not 
 entertain an appeal from his decision, nor revise his judgment in 
 any case where the law authorized him to exercise his discretion or 
 judgment." '* The attorney-genera! is under no obligation to render 
 an award or determine a question of fact in cases referred to him ; 
 nor does an appeal lie to him from another department by any 
 party assuming to be aggrieved by its action or seeking to have it 
 reviewed ; nor is he to give advice to the heads of departments in 
 matters which do not concern their departments and in which the 
 United States have no interest ; nor is he authorized to give his 
 official opinion in any case not falling within the scope of his 
 duties, so as to connect the government with individual contro- 
 versies in which it has no concern, and with which it ought not to 
 interfere ; nor is he in general to give his opinion to subordinate 
 officials ; * nor in cases not actually presented for the action of an 
 executive department.^ It is furthermore his duty to communi- 
 cate, if required, to either House of Congress information on any 
 matters within the scope of his authority ; ® to examine all titles of 
 lands or sites purchased by United States for purposes of erecting 
 public buildings,'' and no money can be expended on land until 
 the title has been approved ; * to advise and direct the Solicitor 
 
 1. The constitution provides that "the verted matter before a court of law, and 
 executive power shall be vested in the can obtain a purely legal decision of the 
 President of the United States," who controversy as distinguished from an 
 shall perform certain functions. But it administrative one only by reference to 
 does not specify the subordinate, minis- the attorney-general. 6 0pp. Att.-Gen. 
 terial, or administrative functionaries by 333. 
 
 whose agency or counsels the details of 3. 6 Opp. Att.-Gen. 346. 
 
 the public business are to be transacted. The opinions of attorneys-general 
 
 It recognizes the existence of such official have authority the same in kind if not 
 
 agencies inferentially in saying that the in degree with the decisions of courts of 
 
 President may require the opinion in justice. 6 Opp. Att.-Gen. 333. 
 
 writing of the principal officer in each of 4. 10 Opp. Att.-Gen. 458; 6 Opp. Att.- 
 
 the executive departments, upon any sub- Gen. 333 et seq. 
 
 ject relating to the duties of their de- The act of June 22, 1870, provides that 
 partments; and again, in the clause which the officers of the Department of Justice, 
 vests the appointment of certain inferior under the direction of the attorney-gen- 
 officers " in the heads of departments," eral, shall render all services required by 
 but leaves the organization of these de- the President, heads of departments, 
 partments to Congress. With a view to heads of bureaus, and other officers in the 
 carrying out such intention, the above departments, 
 act was passed. 6 Opp. Att.-Gen. 327. 5. 11 Opp. Att.-Gen. 189, 431; 10 Opp. 
 
 2, This applies not only to the action Att.-Gen. 50. 
 
 of public officers in administrative mat- 6 6 Opp. Att.-Gen. 335. This was 
 
 ters who are thus relieved from the re- denied by Mr, Wirt, 
 
 sponsibility which would otherwise at- 7. Act of Sept. 11, 1841, 
 
 tach to their acts, but also in questions 8. Act of June 22, 1870. This act ek- 
 
 of private right; inasmuch as parties hav- tablished the Department of Justice and 
 
 ing concern with the government possess created the offices of solicitor-general 
 
 in general no means of bringing a contro- and assistant attorneys-general. 
 
 976 
 
Definition. 
 
 A UCTIONS AND A UCTIONEERS: 
 
 Definition. 
 
 of the Treasury.! The attorney-general may retain associate coun- 
 sel, and can refer at his discretion all questions not involving the 
 construction of the Constitution to his subordinates.* 
 
 AUCTIONS AND AUCTIONEERS. 
 
 1. Defin.itio7i, 976. 
 
 Auctioneer' s License, <)TJ. 
 Bonds, 977. 
 
 2. Authority of Auctioneer, <yj?>. 
 
 Ho-dj Conferred, 978. 
 Revocation, 978. 
 
 3. Relation of Auctioneer to Seller, 
 
 978. 
 
 Must Obey Instructions, 978. 
 
 Must Act Himself, 979. 
 
 Liable for Gross Negligence, 979. 
 
 Must Account for Money Re- 
 ceived, 979. 
 
 Care of Property, 979. 
 
 Cannot Buy Himself, 980. 
 
 Cannot Dispute Principals 
 Title, 980. 
 
 4. Power of Auctioneer, 980. 
 
 To Warrant, 980. 
 To Collect, 980. 
 Termination of Power, 981. 
 Compensation, 981. 
 
 5. Principal Bound by his Acts, 983. 
 
 6. When Agent of Purchaser, 983. 
 
 7. The Auction, 983. 
 
 Conditions of Sale, 983. 
 What Conditions may be At- 
 tached. 984. 
 
 Particulars of Sale, 985. 
 
 Description must beCertain,()i6. 
 
 Competition niust be Fair, 988. 
 
 Must Accept all Biddings, 988. 
 
 Unconditional Sales, 988. 
 
 Puffers, 988. 
 
 Bidders Using Improper Influ- 
 ence, 996. 
 
 Agreements not to Bid, 996. 
 
 Manner of Bidding, 997. 
 
 Bids may be Retracted, 997. 
 
 The Deposit, 997. 
 
 Completion of Contract, 999. 
 
 8. Statute of Frauds, 999. 
 
 Memorandum of Sale, 1000. 
 What Memorandum must Con- 
 tain, 1000. 
 
 May be Signed by Clerk, looi. 
 
 Auctioneer may not Sign where 
 he Sells his own Goods, looi. 
 
 1. Definition. — An auction sale is a public competitive sale. The 
 person who conducts such sale is an auctioneer.* 
 
 1. Act of May 29, 1830. 
 
 2. Act of June 22, 1870. The duties 
 of the attorney-general were purely ad- 
 ministrative as well as legal, and he, was 
 a member of various boards and commis- 
 sions. Acts of April 10, 1790, April 2, 
 7092, March 3, 1849. 
 
 The department has an official seal, 
 find all copies of records properly authen- 
 ticated are as good evidenc/s as the origi- 
 nal documents. 
 
 If the Supreme Court has jurisdiction of 
 fln original suit between different States, 
 to which the United States is or should 
 be a party, the attorney-general viriute 
 officii has no authority to make tiie 
 United States a party to such a suit. 
 Florida z/. Georgia, 17 How. (U. S.) 478. 
 
 If the attorney-general of the United 
 States permit his appearance (which by 
 uniform practice the clerk of the Supreme 
 Court enters in all cases in which the 
 United States is a party) to pass for 
 one term, it is conclusive upon him, but 
 he may withdraw such appearance at 
 the first term. Farrar v. U. S., 3 Pet. (U. 
 S.) 459- 
 
 I C. of L.— 63 
 
 977 
 
 3. Crandall v. State, 28 Ohio St. 480; 
 Goshen v. Kern, 63 Ind. 473. 
 
 It is immaterial whether the goods sold 
 are the property of the auctioneer or be- 
 long to another party. Goshen v. Kern, 
 63 Ind. 468. 
 
 So is a constable who sells goods at 
 auction for the pretended purpose of 
 satisfying an execution liable as an 
 auctioneer under a statute. Jordan v. 
 Smith, 19 Pick. (Mass.) 287. 
 
 A tradesman who sells a portion of 
 his goods at his store by public outcry, 
 giving notice that he will sell such goods 
 only at his regular retail price, is not, 
 within the meaning of a statute provid- 
 ing that all property sold at auction shall 
 in all cases be sold to the highest bid- 
 der, exercising the occupation of an auc- 
 tioneer. Crandall v. State, 28 Ohio St. 
 
 479- 
 
 Selling by auction is said to have origi- 
 nated with the Romans, who gave it the 
 descriptive name of audio, an increase, 
 because the offered property was sold to 
 him who would offer the most for it. 
 This method of sale was established by 
 
Definition. 
 
 A UCTIONS AND A UCTIONEERS. License-Bonds. 
 
 License. — In England and in the various States of the Union 
 statutes have been enacted requiring an auctioneer to be licensed. 
 And many of the municipal corporations in the United States also 
 require those acting as auctioneers to take out a license.^ 
 
 Bonds. — In addition to the license most statutes require auc- 
 tioneers to give bonds with sureties for the faithful performance 
 of their duties ; not only to secure whatever taxes may be due to 
 the State, but also to protect the auctioneer's customers.* 
 
 the Romans for the disposal of military 
 spoils, and was conducted j«^ hasta — that 
 is, under the spear; on such occasions 
 the spear was stuck in the ground. At a 
 laler day another mode of sale by auction 
 came into practice, called the "sale by 
 the candle" or " by the inch of candle." 
 The origin of this expression arose from 
 the use of candles as a means of measur- 
 ing time. It was declared the goods 
 could be continued to be offered to bid- 
 ders for so long a time only as would 
 suffice for the burning of one inch of 
 candle. When the measure was wasted to 
 that extent, the highest bidder was then 
 declared to be the purchaser. Still an- 
 pther method of auction sale is practised 
 in modern times. This one is called a 
 Dutch auction, indicating the local origin 
 of the practice. This method consists in 
 the public offer of the property at a price 
 beyond its value, and then gradually 
 lowering the price until some one be- 
 comes the- purchaser. Ashburn, J., in 
 Crandall v. State, 28 Ohio St. 479; De- 
 posit V. Pitts, 18 Hun (N. Y.), 475. 
 
 An action on the case lies for the dis- 
 turbance of a sale at auction. Furness 
 V. Anderson, i Pa. L. J. Rep. 324. 
 
 1. For statutes see Bateman on Auc- 
 tions, Appendix; Florence v. Richardson, 
 2 La. Ann. 663; Amite City v. Clementz, 
 i4 La. Ann. 27; Jordan v. Smith, 19 
 Pick. (Mass.) 287; Sewall v. Jones, 9 
 Pick. (Mass.) 412; Clark v. Cushman, 5 
 Mass. 505 Deposit v. Pitts, 18 Hun (N. 
 Y.), 475; Fretwellw. Troy, 18 Kans. 271; 
 Wiggins V. Chicago, 68 111. 372; Wright 
 V. Atlanta, 54 Ga. 645; Hunt v. Phila- 
 delphia, 35 Pa. St. 277; State v. Rucker, 
 24 Mo. 557; Oskaloosa w. Tullis, 25 Iowa, 
 440; Decorah v. Dunstan, 38 Iowa, 96; 
 Waterhouse w. Dorr, 4 Me. 333; State v. 
 Conkling, 19 Cal. 501 ; State v. Poulterer, 
 16 CaL 514. 
 
 The fact that an auctioneer is not li- 
 censed according to statute will not vitiate 
 the sale nor prevent the auctioneer from 
 collecting his compensation. Williston 
 V. Morse, 10 Mete. (Mass.) 17; Robinson 
 V. Green, 3 Mete. (Mass.) 159. 
 
 Nor affect his liability for selling goods, 
 as tobacco, at auctionin violation of other 
 
 statutory requirements. Clark v. Cush- 
 man, 5 Mass. 505. 
 
 A note given for goods bought at auc- 
 tion is valid although the auctioneer sold 
 without a license as required by statute. 
 Gunnaldson v. Nyhus, 27 Minn. 440. 
 
 Adjourning an auction sale from time 
 to time may be done by one who is not 
 licensed, although the sale is to be held by 
 a licensed auctioneer. Hosmer v, Sar- 
 gent, 8 Allen (Mass.), 97. 
 
 A statute imposing a duty on sales at 
 auction does not extend to a lease by auc- 
 tion. Sewall V. Jones, 9 Pick. (Mass.) 412. 
 412. 
 
 The license generally confines the au- 
 thority of an auctioneer to a particular 
 town or county, often to a particular 
 salesroom. Waterhouse v. Dorr, 4 
 Greenl. (Me.) 333; Robinson w. Green, 3 
 Mete. (Mass.) 159; Wood v. Com. 12 S. 
 & R. (Pa.) 213. 
 
 A licensed auctioneer in Philadelphia 
 who advances money on consignments 
 and charges a commission for such ad- 
 vances must also take but a pawnbroker's 
 license. Hunt v. Philadelphia, 35 Pa. 
 St. 277. 
 
 2. State V. Poulterer, 16 Cal. 514; St; 
 Louis Church I/. Bonneval, 13 La. Ann. 
 321; State y. Girardey, 34 La. Ann. 
 620; Charity Hospital v. Girardey, 36 La. 
 Ann. 605; Florence v. Richardson, a 
 La. Ann. 663; McMechen v. Baltimore, 
 3 Har. & J. (Md.) 534; Commissioners v. 
 Holloway, 3 Hawks. (N. Car.) 234; 
 Charleston v. Paterson, 2 Bailey (S. 
 Car.), 165; Daly v. Com., 75 Pa. St. 331; 
 Davis z;. Com.,3 Watts(Pa.), 297;George- 
 tpwn V. Baker, 2 Cranch (U. S. C. C), 
 291; Dallas V. Chaloner, 3 Dall. (U. S.) 
 500; Lea V. Yard, 4 Dall. (U. S.) 95. 
 
 And sureties on an auctioneer's bond 
 are liable to all persons employing him 
 as such during his continuance in office. 
 Florence v. Richardson, 2 La. Ann 663; 
 McMechen v. Baltimore, 3 Har. & J. 
 (Md.) 534. 
 
 But where goods had been sold by the 
 auctioneer for cash and the owner ac- 
 cepts his notes inpayment, the auction- 
 eer's sureties are discharged. Moutor- 
 V. Noble, I La. Ann. 192. 
 
 978 
 
Authority. 
 
 A UCTIONS AND A UCTIONEERS. 
 
 BelationK 
 
 2. Authority of Auctioneer. — How Conferred. — As the auctioneer 
 is primarily the agent of the seller, his authority from the seller 
 is conferred upon him in the same way as an agent is appointed 
 by his principal, either under seal, in writing, by parol, or by impli- 
 cation. ^ 
 
 Revocation of Authority. — Like any other agency the authority 
 of an auctioneer to sell goods at auction may be revoked unless- 
 coupled with an interest, or where the intervening rights of third 
 parties would suffer by a revocation.** 
 
 3. Relation of Auctioneer to Seller. — An auctioneer when acting in 
 his professional capacity is primarily, and until the fall of the 
 hammer exclusively, the agent of the vendor.^ 
 
 Must^ Obey Instructions. — He is bound to obey his instructions, 
 and will be liable in damages to his principal when he does not.'^ 
 
 1. See Appointment OF Agents. Flor- 
 ence tj. Richardson, 2 La. Ann. 663; 
 Cronan v. McDonogh, 12 La. Ann. 269; 
 Smith V. East India Co.. 16 Sim. 76; 
 Pilce V. Wilson, i Jur. N. S. 59. 
 
 The authority of an auctioneer to sell 
 lands at auction may be conferred by 
 parol. Yourt v. Hopkins, 24 111. 326; 
 Doty V. Wilder, 15 III. 407; s. c, 60 Am. 
 Dec. 756; Cossitt v. Hobbs, 56 111. 233. 
 
 The sending of goods to an auction 
 room will imjily the intention to give au- 
 thority to sell, and if such goods are sold 
 by the auctioneer a bona-fide purchaser 
 will have a good title to them as against 
 the former owner. Morgan v. Darragh, 
 39 Tex. 171 Pickering v. Burk, 15 East, 
 38. 
 
 A want of original authority may be 
 supplied by the person whose authority 
 was assumed by the auctioneer when he 
 subsequently ratifies the authorized act. 
 See Ratification, under Agency. 
 
 2. See Revocation of Agency. Chin- 
 nock V. Sainsbury, 30 L. J. Ch. 409: 
 Creager v. Link, 7 Md. 259; Simonton v. 
 Minneapolis Bk., 24 Minn. 216; Gwath- 
 ney v. Cason, 74 N. Car. 5; Reed v. 
 Latham, 40 Conn. 452; Warlow v. Har- 
 rison, '29 L. J. Q. B. 14. 
 
 The defendant, an auctioneer, adver- 
 tised in the London papers that certaifl 
 brewing materials, plant, and office fur- 
 niture would be sold by him at Bury St. 
 Edmunds on a certain day and, two fol- 
 lowing days. The plaintiff, a commission 
 broker in London, having a commission 
 to buy the ofBce furniture, went down to 
 the sale; on the third day on which the 
 furniture was advertised for sale all the 
 lots of furniture were withdrawn, upon 
 which the plaintiff brought an action 
 against .the defendant to recover for his 
 loss of time and expenses. Held, that 
 plaintiff could not maintain the action: 
 
 for that advertising the sale was a mere 
 declaration and did not amount to a- 
 contract with any one who might act 
 upon it, nor to a warranty that all the 
 articles advertised would be put up for 
 salfe. Harris v. Nickerson, L. R. 8 Q- 
 
 B. 286. 
 
 But after the acceptance of a bid by the- 
 fall of the hammer the sale is comjilete: 
 and cannot be retracted. Kerr v. City,, 
 I Pa. Leg. Gaz. R. 254. 
 
 An auctioneer employed under a parol 
 agreement to sell goods has not such an 
 interest as to make the license to enter 
 upon the owner's premises for that pur- 
 pose irrevocable. Taplin v. Florence, 10. 
 
 C. B. 744. 
 
 3. Bateman on Auctions, 20; Williams-. 
 ■V. Poor, 3 Cranch (U. S. C. C), 251. 
 
 In an execution sale the sheriff is not, 
 the agent of the execution creditor but 
 of the debtor.and the creditor will not he- 
 responsible for any misrepresentations- 
 of the sheriff at the sale unless he was 
 specially directed by him. Weidle'r v. 
 Farmers' Bank, ii S. & R. (Pa) 134; 
 Stetson V. O'SuUivan, 8 Allen (Mass.), 
 321. 
 
 The purchaser at a sheriff's sale, takes 
 his title immediately from the debtor, as- 
 whose agent the sheriff sells and con- 
 veys. McKnight v. Gordon, 13 Rich, 
 Eq. (S. Car.) 222. 
 
 4. Wilkinson v. Campbell, i Bay. (S, 
 Car.) 169; McMechen v. Baltimore, 3, 
 H. & J. (Md.) 534. 
 
 Where the auctioneer has instructions- 
 not to sell under a certain price and he- 
 disobeys such order he will be liable tO' 
 the seller. Warlow v. Harrison, 29 L. J- 
 (Q. B.) 14; Wolfe V. Luvster, i Hall (N- 
 Y.), 146; Steele v. EUmaker, 11 S. & R. 
 (Pa.) 86; Williams v. Poor. 3 Cranch (C„ 
 C), 251, See Bush v. Cole, 28 N. Y_ 
 261. 
 
 979 
 
Auctioneer 
 
 A UCTIONS AND A UCTIONEERS. 
 
 and Seller. 
 
 Must Act Himself. — He cannot legally delegate his authority, 
 but must sell the property himself.^ 
 
 Liable for Gross Negligence. — An auctioneer is liable only for 
 gross negligence. But he is liable to his principal for all damages 
 resulting from gross negligence and lack of skill.'-* 
 
 Must Account for Money Received. — In common with other 
 agents the auctioneer must account for and pay over all money 
 which maycortieto his hands for goods sold for his principal,* but 
 is not liable for interest unless there has been fraud or misconduct 
 on his part, such as improperly withholding accounts and refusing 
 to pay over the money when demanded.* 
 
 Care of Property. — He is bound to take the same care of the 
 property sent him for sale that he would take of his own goods, 
 and will be liable for any loss or damage caused by his default or 
 negligence.'' 
 
 An auctioneer who is authorized to 
 sell goods on the condition that pur- 
 chasers shall pay a deposit at once, and 
 the remainder of the purchase-money to 
 the auctioneer on or before delivery of 
 the goods; has no authority to receive 
 payment by a bill of exchange; and such 
 payment will not discharge the purchaser. 
 Williams v. Evans, ^. R. i Q. B. 352. 
 
 Or where he has been instructed to sell 
 for cash he may not take a check in pay- 
 ment. Broughton v. Silloway, 114 Mass. 
 71; s. c, 19 Am. Rep. 312; Williams v. 
 Evans, 35 L. J. Q. B. iii. 
 
 1 Com. V. Harnden, ig Pick. (Mass.) 
 4S2; Stone V. State, 12 Mo. 400; Wolf v. 
 Van Metre, 27 Iowa, 348; Singer Mfg. 
 Co. V. Chalmers, 2 Utah, 542. 
 
 But he may delegate mere ministerial 
 acts. He may employ another person to 
 use the hammer and make the outcry 
 under his immediate direction and super- 
 vision, even though he should be himself 
 occasionally absent during the sale. 
 Poree v. Bonneval, 6 La. Ann. 386; 
 Com. V. Harnden, Ig Pick. (Mass.) 482. 
 
 2. Hicks V. Minturn, ig Wend. (N. Y.) 
 550; Bodin V. McClosky, 11 La. Ann. 
 46. 
 
 An auctioneer is bound to take care 
 that the purchaser, where necessary, 
 enters into a binding contract under the 
 Statute of Frauds, and where he does not 
 he will be guilty of such negligence as 
 will make him liable in damages. So 
 where an auctioneer who sold a horse at 
 auction did not ask the name of the bid- 
 der but asked him to come to the desk, 
 which he did not do, and he resold the 
 horse at a lower price than previously 
 offered, it was held that he must make 
 up the difference to the owner. Town- 
 send V. Van Tassell, 8 Daly (N. Y.), 
 261. 
 
 3. Crosskey v. Mills, i C. M. & R. 
 2g8; Gray v. Haig, 20 Beav. 219, 239; 
 Tripp V. Barton, 13 R. \. 130. 
 
 And it makes no difference that the 
 principal is in embarrassed circum- 
 stances. White V. Bartlett, g Bing. 378. 
 
 Where auctioneers employed to sell 
 goods, with discretion to sell on credit, 
 took notes from certain buyers payable 
 to themselves at a future day, and the 
 makers of the notes failed before they 
 became due, It was held that the prin- 
 cipals and not the auctioneers should 
 bear the loss unless it appeared that the 
 auctioneers appropriated the notes to 
 their own use. Townes v. Birchett, 12 
 Leigh (Va.), 173. 
 
 An auctioneer is in general liable only 
 for money which he has actually received, 
 unless he has exceeded his authority and 
 by such excess failed to receive money 
 which he should have received. Andrew 
 V. Robinson, 3 Camp, igg; Williams v. 
 Millington, i H. Bl. 81; Earl of Ferrers 
 V. Robins, 2 C. M. & R. 152; Nelson v. 
 Aldridge, 2 Stark, 435. 
 
 He is accountable only for the net 
 proceeds of the sale, or what is left after 
 paying commission and other expenses. 
 Williamson v, Baltimore, 19 Md. 413. 
 
 The auctioneer is not obliged to pay 
 over to his principal money received by 
 him as a deposit, and which should be 
 returned to the bidder if the sale is not 
 completed. As to money so received, he 
 is the stakeholder of both parties. Hard- 
 ingham v. Allen, 17 L. J. C. P. ig8; 
 Murray v. Mann, 2 Exch. 538. See 
 Ellison V. Kerr, 86 III. 427. 
 
 4. Turner v. Burkinshaw, L. R. 2 Ch. 
 488; V, Jolland, 8 Ves. 72. 
 
 Or where he applies the money to his 
 
 own use. Rogers v. Boehm, 2 Esp. 701. 
 
 6. Davis V. Garrett, 6 Bing. 716; 
 
 980 
 
Belations. 
 
 A UCTIONS AND A UCTIONEERS. 
 
 Powers. 
 
 Cannot Buy Himself. — An auctioneer cannot buy the prop&rty 
 of his principal at a sale conducted by himself ; neither is he justi- 
 fied in selling to a firm in which he is a partner, nor to a company 
 of which he is a member.^ 
 
 Cafinot Dispute his Principal's Title. — An auctioneer cannot dis- 
 pute the title of a person for whom he sells goods in an action 
 against him for the amount of the sales.'-* 
 
 4. Power of Auctioneer. — To Warrant. — The auctioneer has no 
 implied authority to warrant the goods he sells, unless he be spe- 
 cially so instructed by his employer.^ But he will be personally 
 liable upon his personal warranty.* 
 
 Power to Collect. — An auctioneer .employed to sell goods in his 
 possession for ready money has, in general, authority to receive 
 payment for them ; but the conditions of the sale may be such as 
 
 Maltby v. Christie, i Esp. 340; Massey 
 V. Banner, I J. & W. 241. 
 
 So long as property remains unsold in 
 the hands of an auctioneer, or when he 
 has wrongfully or unwarrantably dis- 
 posed of if, the owner can maintain an 
 action against him for the recovery of the 
 goods or for conversion. Topham v. 
 Braddick, i Taunt. 572; Powell zi. Sadler, 
 Paley P. & A. 80. 
 
 So where he undertakes to insure the 
 goods he must obtain reasonable insur- 
 ance in good companies or give notice to 
 his principal that he can obtain no insur- 
 ance. Callander v. Oelrichs, 5 Bing. N. 
 Cas. 58; Shoenfeld v. Fleisher, 73 111. 
 404. 
 
 He will not be liable for any loss 
 which he could not prevent. Johnson v. 
 Campbell. 120 Mass. 449; Gettins v. 
 Scudder, 71 111. 86. 
 
 An auctioneer to whom goods are 
 intrusted for sale can maintain an action 
 against a stranger who takes them out of 
 his possession. Bateman on Auctions, 
 25, 113; Broom C. L. 816; Tyler v. 
 Freeman, 3 Cush. (Mass.) 261. 
 
 And he can by virtue of his special 
 property in them bring an action for the 
 price in his own name. Robinson v. 
 Rutter, 4 E. & B. 954. 
 
 But not where he himself has signed 
 as agent for buyer. Wright v. Dannah, 
 2 Camp. 203; Farebrother v. Simmons. 
 5 B, & Aid. 333; Robinson v. Garth, 6 
 Ala. 204; Boardman v. Spooner, 13 
 j^llen (Mass.), 353; Bailey v. Ogden, 3 
 Johns. (N. Y.) 399 ; Adams v. Scales, i 
 Baxt. (Tenn.) 337. 
 
 1. Salomons v. Pender, 34 L.J. (Exch.) 
 95; Oliver v. Court, Dan. 301; Baskett 
 V. Cafe, 4 De G. & Sm. 388; Swires v. 
 Brotherline, 41 Pa. St. 135; s. c, 80 Am. 
 Dec. 601; Brock v. Rice, 27 Gratt. (Va.) 
 812. Compare Brotherline v. Swires, 48 
 
 Pa. St. 68; Morse u. Royal, 12 Ves. 
 355- 
 
 He may, however, bid himself for a 
 third party. Scott v. Mann, 36 Tex. 157. 
 Compare Campbell v. Swair, 48 Barb. 
 (N. Y.) 109; Coles V. Trecothick, 9 Ves. 
 234, 248. 
 
 And in some cases it has been held 
 that at a. sale without reserve he may 
 make a bona-fide bidding for himself 
 when it is done fairly and in good faith. 
 R. V. Marsh, i C. & J. 406. See Judi- 
 cial Sales. 
 
 2. Hutchinson v. Gordon, 2 Har, 
 (Del.) 179; Osgood V. Nichols, 5 Gray 
 (Mass.), 420. 
 
 3. Blood V. French, 9 Gray (Mass.), 
 197; The Monte Allegro, 9 Wheat. (U. S.) 
 645; Worthy v. Johnson, 8 Ga. 236; 
 Bashore v. Whisler, 3 Watts (Pa.), 490; 
 Commissioner v. Thompson, 4 McC. 
 (S. Car.) 434; Yates v. Bond, 2 McC. 
 (S. Car.) 382; Davis v. Murray, i Mill. 
 Const. (S. Car.) 143; Davis v. Hunt, 2 
 Bailey (S. Car.), 412; Robinson v. Cooper, 
 I Hill (S. Car.), 286; Thayer v. Sheriff, 2 
 Bay. (S. Car.) i6g; Stone v. Pointer, 5 
 Munf. (Va.) 287; Cameron v. Logan. 8 
 Iowa, 434; Dwight's Case, 15 Abb. Pr. 
 (N. Y.) 259; Isley v. Stewart, 4 Dev. & 
 B. (N. Car.) 160; Parker v. Partlow, 12 
 Rich. (S. Car.) 679; Hill v. Balls, 27 L. 
 J. (Exch.) 45; Payne v. Leconfield, 51 L. 
 J. (Q. B. Div.) 642. Compare Harrison v. 
 Shanks, 13 Bush (Ky.), 620; Com. v. 
 Dickinson, 5 B. Mon. (Ky.) 506; For- 
 sythe V. Ellis, 4 J. J. Marsh. (Ky.) 298; 
 Commissioner v. Macon, 2 Brev. (S. Car.) 
 105; Stoney v. Shultz, i Hill Ch. (S. 
 Car.) 465. 
 
 4. Dent v. McGrath, 3 Bu^h (Ky.), 174; 
 Schell V. Stephens, 50 Mo. 375. 
 
 As to what is a personal guarantee, 
 see Woodward v. Boston, 115 Mass. 81; 
 McGrew v. Forsythe, 31 Iowa, 179. 
 
 981 
 
Tower of 
 
 A UCTIONS AND A UCTIONEERS. 
 
 Auctioneer. 
 
 to show that the vendor intended payment to be made to himself, 
 and in such a case payment to the auctioneer will not bind the 
 vendor.^ 
 
 Termination of Power. — The auctioneer's authority ceases as 
 soon as the sale has taken place, and therefore after the sale, unless 
 specially empowered, he cannot rescind or vary the contract, or 
 deal with the purchaser as to the terms upon which the title is to 
 be made.'-* 
 
 Compensation. — An auctioneer employed to conduct a sale is in 
 general entitled to be remunerated for his trouble, and to be in- 
 demnified for any loss that he may have incurred in the proper 
 discharge of his duty. The' amount of his remuneration, which 
 generally takes the form of a commission, is fixed sometimes by 
 statute, but more commonly by express contract or by custom.* 
 
 1. Sykes v. Giles, 5 M. & W. 645; 
 Capel V. Thornton, 3 C. & P. 352; 
 Broughton v. SiUoway, 114 Mass. 71; 
 Taylor v. Wilson, 11 Mete. (Mass.) 44; 
 Tripp V. Barton, 13 R. I. 130. 
 
 If the auctioneer acts as mere crier or 
 Ijroker for a principal who has retained 
 the possession of the goods, the auc- 
 tioneer has no authority to receive pay- 
 ments. OfBey 1). Clay, 2 M. & G. 172. 
 
 If the conditions provide merely for 
 the deposit to be paid to the auctioneer, 
 it seems that this excludes him from 
 Teceiving the whole price. Sykes v. 
 Giles, 5 M. & W. 645; Thompson v. 
 Kelly, loi Mass. 291. 
 
 2. Bradford v. Bush, 10 Ala. 386; 
 Smith V. Rice, I Bailey (S. Car.), 648; 
 Boinest v. Leignez, 2 Rich. (S. Car.) 464; 
 Stewart v. Garvin. 33 Mo. 103. 
 
 3. Macarty's Succession, 32 La. Ann. 
 6; Carpenter v. Count, 93 N. Y. 562; 
 ■Russell V. Miner, 5 Lans. (N. Y.) 537, 25 
 Hun (N.Y.), 114; Maltby v. Christie, -i 
 Esp. 340; Ruckman v. Bergholz, 38 N. 
 J. L, 531- 
 
 Where an auctioneer sells several dis- 
 tinct lots his compensation will be earned 
 on each separate, lot sold unless there be 
 a contract to the contrary. Robinson v. 
 -Green, 3 Mete. (Mass.) 159. 
 
 Under the N. Y. statutes prohibiting 
 ■an auctioneer from demanding more than 
 two and one half per cent commissions 
 for his services on sales, "unless by 
 a previous agreement in writing be- 
 tween him and the owner," to bring 
 a case within the exception (t is not 
 essential that the written agreement 
 should be signed by the auctioneer; 
 if signed by the owner and carried 
 into effect by the auctioneer he is en- 
 titled to the compensation fixed thereby. 
 Plaintiff owned certain goods upon 
 which A. had a. mortgage. A written 
 
 agreement was executed between them 
 which, among other things, authorized 
 defendant to sell the goods at auction 
 and to charge five per cent commissions, 
 and directed as to the distribution of the 
 proceeds. Defendant sold under the 
 agreement and retained the commissions 
 fixed. In an action to recover the excess 
 over the statutory allowance, and the 
 penalty fixed by the statute for a viola- 
 lion thereof, held, that the agreement was 
 between the owner and the defendant 
 within the meaning of the statute, as it 
 conferred upon the latter his authority to 
 sell; that said agreement was valid al- 
 though not signed by defendant; and 
 that he was entitled to retain the per- 
 centage agreed upon. Carpenter v. Le 
 Count, 93 N. Y. 562. 
 
 He can maintain a suit in his own 
 name for goods sold and delivered by 
 him on which he holds a lien for his 
 charges. Flanigan v. Crull, 53 111. 352; 
 Johnson v. Buck, 35 N. J. L. 338. 
 
 In case of dispute about the compensa- 
 tion or indemnification, in the absence of 
 express agreement or statutory provi- 
 sions it will be a matter for the jury. 
 Marshall v. Parsons, 9C. & P. 656; Eicke 
 V. Meyer, 3 Camp. 412; Cohen z/. Paget, . 
 4 Camp. 96; Re Page, 32 Beav 487. 
 
 If the auctioneer in the proper peforra- 
 ance of his duty to his principal does an 
 act injurious to the rights of a third party, 
 such as selling goods to which he has no 
 title, and suffers damages in consequence, 
 a contract to indemnify the auctioneer 
 against the consequences of such act will 
 be presumed against the principal, pro- 
 vided the auctioneer had no knowledge 
 of the illegal or tortious character of the 
 sale. Dugdale v. Lovering, L. R. 10 C. 
 P. 196. 
 
 If through no fault of his own the auc- 
 tioneer's sale is set aside and a new sale 
 
 982 
 
Auctioneer's Acts. A UCTIONS AND A UCTIONEERS. Bind Principal. 
 
 5. Principal Bound by Auctioneer's Acts and Representations; — 
 
 The auctioneer's agency is a general agency, and consequently 
 subject as between him and his principal to his special instruc- 
 tions, and as regards third persons to their having notice of his 
 special instructions. The auctioneer's principal is bound by all acts 
 
 ordered, the auctioneer will be entitled 
 to commissions on both sales. Benner's 
 Estate, 3 Brevvst. (Pa.) 398. Compare 
 Succession of Navarro. 24 La. Ann. 105. 
 
 But not when a bid he received has not 
 been complied with. He must sell to 
 earn his fees. Cochran v. Johnson, 2 
 McCord (S. Car.), 21; Ward v. James, 8 
 Hun (N. Y.), 526; Cannon v. Kelly, 
 Hayes & J. 655. 
 
 Or where the principal sold the goods 
 before he had made a sale. Simpson v. 
 Lamb, 17 C. B. 603; Girardey v. Stone, 
 24 La. Ann. 286. 
 
 He can make no profits on his expenses. 
 So where he advertises at reduced rates 
 he can only recover such reduced rates. 
 Union Refining Co. v. Pentecost, 79 Pa. 
 St. 491. 
 
 He will not be entitled to be reim- 
 bursed for expenses which he could have 
 prevented, or which have been occasioned 
 through his own negligence or blunders, 
 or which he has incurred in excess of his 
 authority. Capp v. Topham, f) East, 392; 
 Christie v. Atty.-Genl., 6 Bro. P. C. 520; 
 Grimshaw v. Atterwell, 8 C. & P. 6. 
 
 He has alien upon the goods intrusted 
 to his care, or upon the proceeds after 
 sale, as long as they are in his hands. 
 Williams 'v. Millington, i H. Bl. 81; 
 Woolfe V. Home. L. J. 46 Q. B. 534; 
 Succession of Dowler, 29 La. Ann. 437. 
 
 And the auctioneer may appropriate so 
 much of the money produced by his ^ales 
 as are due him for commissions and ex- 
 penses, and allow a purchaser this amount 
 as a set-off for an individual debt. Har- 
 low V. Sparr, 15 Mo. 184. See Townes 
 V. Bircheit, 12 Leigh (Va.), 173. 
 
 The defendants were aiACtioneers and 
 had sold for a customer a brewery, and 
 part of the proceeds of the sale was in 
 their hands, subject, to their claim for 
 charges incurred in connection with the 
 sale; they had also in their hands the 
 balance of the price of some furniture 
 sold by them for the same customer. The 
 plaintiff was a creditor of the defendants' 
 customer, and he by letter charged the 
 proceeds of the sale of the brewery in 
 favor of the plaintifi. The defendants 
 wrote to the plaintiff acknowledging the 
 receipt of the letter of charge. The de- 
 fendants afterwards paid their customer 
 the balance of the price of the furniture, 
 and appropriated the pai;t of the proceeds 
 
 of the sale of the brewery in their hands 
 to the payment of their charges. Held, 
 first, that the letter of charge and the 
 defendants' acknowledgment thereof 
 amounted to a good equitable assign- 
 ment in favor of the plaintiff; secondly. 
 that the defendants, as auctioneers, had 
 a lien for their charges upon the part of 
 the proceeds of the sale of the brewery 
 in their hands; thirdly, that the de- 
 fendants were at liberty to appropriate 
 the part of the proceeds of the sale of 
 the brewery in their hands to the pay- 
 ment of their charges, and were not' bound 
 to take payment of their charges out of 
 the price of the furniture in order to en- 
 able the plaintiff to obtain payment of his 
 charge, and that the doctrine of marshal- 
 ling did not apply. Webb v. Smith, L. 
 R. 30 Ch. Div. 192. 
 
 It seems, however, that he cannot 
 bind his principal by a warranty of their 
 condition. Blood v. French, 9 Gray 
 (Mass.), 197; Dodd v. Farlow, 11 Allen 
 (Mass.), 426; Bashore v. Whisler, 3 
 Watts (Pa.), 490; Yates v. Bond, 2 
 McCord (S. Car.), 382; Monte Allegro, 9 
 Wheat. (U. S.)645; Alexander v. Gibson, 
 2 Camp. 555; Sandilands v. Marsh, 2 B. 
 & Aid. 673; Dingle o. Hare, 7 C. B. N. 
 S. 29; Payne v. Lord Leconfield. For 
 Warranty under Judicial Sales, see 
 that title. 
 
 Where an auctioneer sells without dis- 
 closing the name of his principal, he 
 will be held personally liable as the ven- 
 dor. So where he undertakes to sell with- 
 out reserve, but allows by-bidding. Stahl 
 V. Charles, 5 Abb. Pr. (N. Y.)348; Towle 
 V. Leavilt, 23 N. H. 360; Bush v. Cole, 
 28 N. Y. 261; Mills V. Hunt, 20 Wend. 
 (N. Y.) 431; Mauri v. Heffernan. 13, 
 Johns. (N. Y.) 58; McComb v. Wright, 
 4 Johns. Ch. (N. Y.) 659; Schell v. 
 Stephens, 50 Mo. 375; Hanson v. Rober 
 dean. Peake, N. P. C. 163; Warlow v. 
 Harrison, 28 L. J. (Q. B:) 18. 
 
 An auctioneer will be personally liable 
 where he sells goods to which he knows 
 that his principal has no title. Hardacre 
 V. Stewart, 5 Esp. 104. 
 
 And even where he has no notice of 
 the fact that his principal has no title, as 
 when he sells stolen goods, he will be 
 liable in trover. Hoffman v. Carow, 22 
 Wend. (N. Y.) 285; Williams v. Merle, 11 
 Wend. (N. Y.) 80; Hills v. Snell, 104 
 
 983 
 
Agent of Buyer. A UCTIONS AND A UCTIONEERS. 
 
 Sale. 
 
 and representations of the auctioneer when done within the scope 
 of his employment and justified by usage and custom.^ 
 
 6. When Agent of Purchaser. — Upon the descent of the hammer 
 the auctioneer becomes also the agent of the purchaser to write 
 down the name of the latter as purchaser, and his memorandum 
 of the transaction will bind both parties as being a note in writing 
 sufficiently signed within the Statute of Frauds. The memorandum 
 of the auctioneer to bind the bidder must be contemporaneous 
 with sale.'-* 
 
 7. The Auction. — Conditions of Sale. — Auction sales are always 
 subject to conditions either express or implied, and refer to the 
 manner of bidding, the deposit, the signing of the contract, the 
 quantity or quality of the subject-matter of the sale, the title to 
 be given by the vendor, the evidence of title, the completion of 
 the purchase, misdescription in the particulars or catalogue, forfeit- 
 ure of the deposit, and a resale of the property.^ 
 
 Mass. 173; Gilmore v. Newton, g Allen 
 (Mass.), 171; Coles v. Clark, 3 Cush. 
 (Mass.), 399; Courtis v. Cane, 32 Vt. 232. 
 An auctioneer who receives and sells 
 stolen property is liable for conversion 
 to the same extent as any other merchant, 
 and there is no principle of policy for the 
 encouragement of trade or convenience 
 of business under which he can explain 
 an exemption. Rogers v. Hine, I Cal. 
 429; »..c., 54 Am. Dec. 300. Compare 
 same case, 2 Cal. 571. 
 
 1. Russell V. Palmer, 2 Wils, 325 ; Pitt 
 V. Yalden, 4 Burr, 2060; Moore v. 
 Mourgue, Cowp. 480; Ives v. Tregent, 
 29 Mich. 390; Langdon t/. Summers, 10 
 Ohio St. 77; Requa v. Rea, 2 Paige (N. 
 Y.), 339; Bottoms V. Mithvin, 26 Ga. 481. 
 Compare Jones v. Thacker, 61 Ga. 329; 
 Davis V. Irwin, 8 Ga. 153; Phillips v. 
 Behn, ig Ga. 298; Davis v. Hunt, 2 
 Bailey (S. Car.), 412; Coats -ti. Stewart, 
 ig Johns. (N. Y.) 2g8. 
 
 2. Walker v. Herring, 21 Gratt. (Va.) 
 678; s. c, 8 Am. Rep. 617; Brent v. 
 Green, 6 Leigh (Va.), 16; McComb v. 
 Wright, 4 Johns. Ch. (N. Y.) 65g; Smith v. 
 Arnold, 5 Mason (U. S.), 414, 4ig; Davis 
 V. Rowell, 2 Pick. (Mass.) 64; s. c, 13 
 Am. Dec. 398; Gill v. Bicknell, 2 Cu.sh. 
 (Mass.) 355; Bent v. Cobb, 9 Gray 
 (Mass.), 397; Morton v. Dean, 13 Mete. 
 (Mass.) 388; Horton v. McCarty, 53 Me. 
 394; Cleaves v. Foss, 4 Greenl. (Me.) i; 
 Adams v. McMillan, 7 Port. (Ala.) 73; 
 White V. Crew, 16 Ga. 416; Burke v. 
 Haley, 2 Gilm. (111.) 614; Hart v. Woods, 
 7 Blackf. (Ind.) 568; Linn Boyd, etc., Co. 
 V. Terrill. 13 Bush (Ky.), 463; Pugh 2/. 
 Chesseldine. 11 Ohio. 109; Gordon v. 
 
 , Sims, 2 McCord Ch, (S. Car.) 151; An- 
 derson V.' Chick, I Bailey Eq. (S. Car.) 
 
 118; Harvey v. Stevens, 43 Vt. 653; 
 White V. Watkins, 23 Mo.. 423; Craig w. 
 Godfroy, I Cal. 415; s. c, 54 Am. Dec. 
 299; Gwathney v. Cason, 74 N. Car. 5; 
 s. c, 21 Am. Rep. 484; Mews v. Carr, 
 I Exch. 484; Buckmaster v. Harrop, 13 
 Ves. 456; Entz v. Mills, i McMuU. 454; 
 Warlow V. Harrison, 28 L. J. Q. B. 18; 
 Clarkson v. Noble, 2 U. C. Q. B. 361. 
 Compare Bartlett v. Purnell, 4 Ad. & E. 
 792. 
 
 An auctioneer's memorandum, entered 
 in his book as early as practicable after 
 the sale, from a pencil memorandum on 
 a loose slip of paper made at the mo- 
 ment of the sale, is sufficient, and is to 
 be regarded as the original entry. Epis- 
 copal Church V. Wiley, 2 Hill Ch. (S. Car.) 
 584; s. c, 30 Am. Dec. 386. And see 
 Price V. Durin, 56 Barb..(N. Y.) 647; 
 Barclay v. Bates, 2 Mo. App. 139. 
 
 3. Bateman on Auctions, 83. 
 
 These conditions are only binding on 
 a purchaser when they fairly come to his 
 knowledge. But where they have been 
 printed and circulated before the sale, or 
 posted up in the auction-room, a pur- 
 chaser will generally be considered to 
 have knowledge of them. Freme v. 
 Wright, 4 Madd. 364; Torrance v. Bol- 
 ton, L. R. 14 Eq. 124; Bywater v. Rich- 
 ardson, I A. & E. 508; 
 
 Sometimes they are announced by the 
 auctioneer immediately before the com- 
 mencement of the sale, and if so an- 
 nounced in a clear and distinct manner 
 they will be binding on the purchaser. 
 Wainwright v. R.ead, i Desau. (S. Car.) 
 573; Nat. Bankgf Metropolis v. Sprague, 
 20 N. J. Eq. 159; Brubaker v. Jones, 23 
 Kans. 41 1; Tt'ichel v. Myers, 18 La. Ann. 
 567;, Backer v. Hamilton-, 18 La. Ann. 
 
 984 
 
Sale. 
 
 A UCTIONS AND A UCTIONEERS. 
 
 CondiUons. 
 
 What Conditions may be Attached. — Any condition may be at- 
 tached to an auction sale, but the language of restrictive conditions, 
 should be perfectly clear and not misleading, and sweeping general 
 clauses in the conditions cannot be relied upon to cure the omission 
 from the particulars of conditions of anything which ought to have 
 been stated there. '^ 
 
 in offering their bids. Nat. Banlc of 
 Metropolis v. Sprague, 20 N. J. Eq. 150; 
 Blossom V. R. Co. 3 Wallace (U. S.), 
 196; Wright V. Yetts, 30 Ind. 185; Stead 
 V. Course, 4 Cranch (U. S.), 403. See 
 Ashcom V. Smith, 2 Pen. & W. (Pa.) 211; 
 s. c, 21 Am. Dec. 437. 
 
 It is the duty of the auctioneer to see 
 that the conditions of the sale are com- 
 plied with before he parts with the prop- 
 erty. McCall V. Elliott, Dudley (S. Car.), 
 250; Singleton v. Herriott, Dudley (S. 
 Car.). 254-^ Moore v. Owsley, 3^ Tex. 
 603; Williamson v. Berry, 8 How. (U. S.). 
 495, 544; Minnesota Co. v, St. Paul Co., 
 2 Walli (U. S.) 609; Welch v. Louis, 3r 
 HI. 446; Langsdale v. Mills, 32 Ind. 2B1.. 
 
 1. Chainbers z'.Tulane, gN. J. Eq. 146. 
 Higgins.w. Delaware, etc., R. Co., 60 N. 
 y. 553; Brown v. Haff, 5 Paige (N. Y.),. 
 235; Brown v. Wallace, 4 Gill & J. (Md.)- 
 479; McLean v. Green, 2 McMuU. (S. 
 Car.) 17; Waterman v. Spaulding, 51 III. 
 425; Laight z'.Pell, i Edw. Ch. (N.Y.) 577; 
 Gordon j/. Sims, 2 McCord Ch. (S. Car.): 
 151; Lenihan v. Hamann, 14 Abb. Pr. N. 
 S. (N. Y.) 274; Osborne v. Harney, 7 Jur. 
 22g; Browplie v. Campbell, 5 App. Cas. 
 925; Freme v. Wright, 4 Madd. 364; 
 Hanks v. Pulling, 25 L. J. Q. B. 375; 
 Else V. Else, L. R. 13 Eq. 196. Compare- 
 Lallande v. Wentz, 18 La. Ann. 289. 
 
 Goods consigned for sale to an auc- 
 tioneer were sold with the condition- that 
 no allowance should be made for damage 
 unless applied for within three days, 
 when the bills were to be settled. Held, 
 that this condition limited the liability of 
 vendor and auctioneer to three days from 
 the sale, although the damage was not. 
 discovered until after that time had 
 elapsed. Atkins v. Howe, 18 Pick. 
 (Mass.) 16. 
 
 Where there is an ambiguity or illegal- 
 ity in the terms of a sale the vendor can- 
 not, take advantage of it. Gauche v. 
 Trautman, 7 La. Ann. 6ro; Andrews v. 
 Keith, 34 Ala. 722; Bottoms v. Milhvin,. 
 26 Ga. 48r; Hamill v. Gillespie, 48 N. 
 Y. 556- 
 
 In an action for the non-delivery of 
 goods, it appeared that the defendants, 
 who were auctioneers, issued printed 
 catalogues, headed " Great Western Rail- 
 way Company. Catalogue of unclaimed 
 property, etc., which will be sold by auc- 
 
 553; Shields v. Harrison, 77 N. Car. 115; 
 Pope V. Burrage, 115 Mass. 282. 
 
 A sale by a mortgagee acting in good 
 faith and under power of his mortgage is 
 not invalid because he announced at the 
 sale that a reasonable deposit would be 
 required from purchasers, which con- 
 dition was not embodied in the advertise- 
 ment, and in consequence of which a 
 person present was prevented from bid- 
 ding. Pope V. Burrage, 115 Mass. 282. 
 
 Where the conditions of the sale have 
 been published, and the auctioneer be- 
 fore the sale makes an announcement 
 amounting to an alteration of the written 
 or printed terms, such conditions as 
 altered will be binding upon purchasers; 
 but in case of dispute the vendor must 
 clearly show that the purchaser had 
 actual knowledge of the alterations. 
 Daniel v. Jackson, 53 Ga. 87; Satterfield 
 V. Smith, II Ired. L. (N. Car.) 60. See 
 Wright!'. Deklyne, Pet. (U. S. C. C.)i99; 
 McLellan v. Cumberland Bank, 24 Me. 
 566; Rankin v. Matthews. 7 Ired. L. (N. 
 Car.) 286; Grantland v. Wight, 2 Munf. 
 (Va.) 179. 
 
 And it has even been held that the 
 
 conditions of the sale may be changed by 
 
 , the vendor during the progress of the 
 
 sale. .Morrison v. Morrison, b Watts 
 
 & S. (Pa) 518. 
 
 Unless conditions are expressly stated, 
 the interest offered for sale will be pre- 
 sumed to be accompanied by all the ad- 
 vantages legally and usually incidental to 
 it, including the right to a clear title. 
 Ruggles V. Centerville Bank, 43 Mich. 
 192; Hotchkiss V. Clifton Air Cure, 2 
 Abb. Dec. (N. Y.) 406; McGown v. 
 Wilkins, I Paige (N. Y.), 120; Gillett v. 
 Balcom, 6 Barb. N. Y. 370; Parker v. 
 Storts, 15 Ohio St. 351; Succession of 
 Triche, 29 La. Ann. 384; Myers v. Ray- 
 mond, 5 Fla. 5x6, Bradford v. McConi- 
 hay, 15 W. Va. 732; Skull v. Glenister, 
 16 C. B. N. S. 81; Pope V. Garland, 4 
 Yo. & C. 403; Whittington v. Corder. 16 
 Jur. 1034; Stanton v. Tattershall, I Sm. 
 & G. 529. 
 
 In the absence of stated conditions of 
 sale by the vendor the auctioneer is con- 
 sidered to have considerable discretion in 
 prescribing such terms of sale as will ex- 
 clude puffers and fraudulent bidders, and 
 secure the confidence of honest purchasers 
 
 985 
 
^ale. 
 
 AUCTIONS AND AUCTIONEERS. 
 
 Farticulars. 
 
 Particulars of Sale or Catalogue. — A description of the property 
 ■offered for sale, usually published before the sale takes place, 
 should be clear and unambiguous, so as to leave no reasonable 
 doubt in the mind of those who attend the auction about the 
 identity or the character of the thing which is to be sold.^ 
 
 tion by Messrs. H. & E. (the defendants); 
 on Tuesday, November 7th, and follow- 
 ing day. By order of the directors of the 
 above company, etc." The catalogue 
 contained, amongst others, the following 
 'Conditions: " The lots to be cleared away 
 within three days after the sale at the 
 purchaser's expense, etc. If 'any de- 
 ficiency shall arise, or from anycause the 
 -auctioneer shall be unable to deliver any 
 lot or portion of a lot, then in such case 
 the purchaser shall accept compensation. 
 Upon failure of complying with the above 
 •conditions, the money deposited in part 
 payment shall be forfeited. All lots un- 
 •claimed within the time aforesaid shall 
 be resold by public or private sale without 
 further notice, and the deficiency made 
 good by the defaulter." The plaintiff at- 
 tended the sale, received a catalogue, 
 bought one of the lots and paid a deposit. 
 He did not take the goods away on Sat- 
 "urday (the last of the three days for 
 ■clearing), but went for them on the Mon- 
 day following, when he was told by one 
 •of the defendants that the lot had been 
 delivered to another person. There was 
 evidence that the lot was seen on Satur- 
 day morning in the defendant's posses- 
 .sion as if ready for delivery, and that it 
 was usual to delay the delivery of large 
 lots like it till the smaller lots had been 
 •delivered. The plaintiff having been 
 nonsuited, held, first, that on the face 
 of the catalogue and conditions there was 
 •evidence that the defendants contracted 
 personally with the plaintiff for the de- 
 livery of the goods purchased by him. 
 Secondly, that the condition as to clear- 
 ing the lot within three days was not a 
 •condition precedent to the plaintiff's 
 right to claim delivery. Woolfe w. Home, 
 L. R. 2 Q. B. D. 355. 
 
 The conditions of a sale provided that 
 the buildings and the lots should be sold 
 ■separately, the buildings to be removed 
 within thirty days. Held, that a pur- 
 chaser of a building who also bought the 
 lot on which it stood was not bound to 
 remove it. Plume v. Small, 5 N. J. Eq. 
 .460. 
 
 Neither will the purchaser be allowed 
 to take undue advantage of any omission 
 •of special conditions, or any uninten- 
 tional mistake on the part of the auc- 
 tioneer or vendor.. Lord v. Stephen, i Y. 
 •& C. 222; Harvey ZJ. Harris, iiaMass. 32. 
 
 986 
 
 1. State,!/. Keeler, 49 Mo. 548; Hoff- 
 man V. Anthony, 6 R. I. 282; Symons v. 
 James, i Y. &'C. C. C. 487; Rhodes v. 
 Ibbetson, 4 De G., M. & G. 787; Smith 
 V. Ellis, 14 Jur. 682. 
 
 Such description, when it relates to 
 real property or property of the nature 
 of realty, is called the " particulars of 
 sale," and when it refers to personal ef- 
 fects sold in lots. Is designated a "cata- 
 logue." Batemaii on Auctions, p. 44. 
 
 It has been held that it should be cir- 
 culated before the sale, or at any rate, in 
 the salesroom. Tarrance v. Bolton, L. 
 R. 14 Eq. 124. 
 
 This description cannot be contradict- 
 ed, varied, or added to by the auctioneer 
 at the time of sale. Wright v. Deklyne, 
 Peters (U. S. C. C), igg; Rodman v. 
 Zllley, I N. J. Eq. 320; Cannon v. Mit- 
 chell, 2 Desau. (S. Car.) 320; Grantland 
 V. Wight, 2 Munf. (Va.) 179; Layton v. 
 Hennen, 3 La. Ann. i; Davidson j*. De 
 Lallande, 12 La. Ann. 826. Compare 
 Rankin v. Matthews, 7 Ired. L. (N. Car.) 
 286; Leez/. Hester, 20 Ga. 588. 
 
 But although evidence of such declara- 
 tions is inadmissible at law on behalf of 
 either plaintiff or defendant, and in 
 equity on behalf of the plaintiff, such evi- 
 dence is admissible in equity on behalf of 
 the defendant to an action for specific 
 performance. The rule seems to be that 
 if the variation is In favor of the vendor, 
 the vendor cannot enforce specific per- 
 formance with the variation, nor can the 
 purchaser enforce specific performance 
 without the variation. If the variation 
 is in favor of the purchaser the purchaser 
 cannot enforce specific performance with 
 the variation, nor can the vendor enforce! 
 specific performance without the varia- 
 tion. WooUam v. Hearn, 7 Ves. 211; 
 Higglnson v. Clowes, 13 Ves. 516; 
 Winch V. Winchester, i V. & B. 375; 
 Townshend v. Winchester, 6 Ves. ,328; 
 Price V. Ley, 32 L. J. Ch. 530; London, 
 etc.. R. Co. V. Winter, i Cr. & Ph. 57; 
 Wood V. Scarth, 2 Kay. & J. 33; Martin 
 V. Pycroft, 22 L. J. Ch. 94; Clowes v. 
 Higginson, i V. & B. 524; Manser v. 
 Back, 6 Hare, 443; Glass v. Hulbert, 102 
 Mass. 24. 
 
 This ruledoes not refer to explanations 
 by the auctioneer of written or printed 
 " particulars" or "catalogues" when the 
 explanations do not contradict the partic- 
 
Sale. 
 
 A UCTIONS AND A UCTJONEERS. Particulars. 
 
 Description must be Certain. — The particulars should contain a 
 faithful description of the property to be sold, with an exact ac- 
 count of its liabilities and incumbrances, and should be so framed 
 as to convey clear information to the ordinary class of persons 
 who frequent sales by auction.^ 
 
 hear of them again. Held, that the con- 
 ditions were misleading and the state- 
 ments in the auction-room insufficient, 
 and specific performance of the contract 
 refused. Heywood v. Mallalieu, L. R. 
 25 Ch. Div. 357. 
 
 The particulars of sale described a 
 farm, forming about a third of the estate 
 sold, as laie in the occupation of A B. 
 at the rent of ;^2go. A B had occupied 
 the farm, which contained a good deal 
 ot grass land, as yearly tenant, at £2qo. 
 but went in at midsummer, paying only 
 £1 for the first quarter, and quitting at 
 Michaelmas in the next year, thus pay- 
 ing ;^2gi for a year and a quarter. Since 
 this the plaintiff had agreed to let the 
 i.\rm at ^^225; but the agreement had 
 been rescinded before taking possession, 
 and the evidence showed that the farm 
 would not let for nearly so much as 
 £2t)0. Held, that there was such sub- 
 stantial misrepresentation as entitled the 
 purchaser to be discharged. Dimmock 
 V. Halleit, L. R. 2 Ch. 21. 
 
 A slight mistake in the description of 
 land on which corn was standing which 
 was to be sold, but where the description 
 was sufficient to apprise all persons what 
 particular piece of corn was advertised, 
 was held not 10 avoid the sale. Pollard 
 V. King, 63 III. 36. 
 
 Trifling and unimportant variations in 
 the description of an estate are not fatal 
 to the sale if the transaction be fair, es- 
 pecially if there be the usual condition 
 providing that errors and misdescriptions 
 shall not annul the sale. Chandler v. 
 Cook, 2 McArthur, (Dist. of Columbia), 
 176; Gray v. Shaw. 14 Mo. 341; Jensen v. 
 .Weinlander, 25 Wis. 47,7; Stephenson v. 
 January, 49 Mo. 465; Shields v. Thomp- 
 son, 4 Baxt. (Tenn.) 227; Noble v. Goo- 
 gins, 99 Mass. 231; Shaubhut v. Hilton, 
 7 Minn. 506; Ten Broeck v. Livingston, 
 I Johns. Ch. (N. Y.) 357; Winne v. Rey- 
 nolds, 6 Paige (N. Y.), 407. Compare 
 Ware v. Johnson, 55 Mo. 500; Jennings 
 v. Broughton, 17 Beav. 324. 
 
 In such cases, however, specific per- 
 formance may be refused although a 
 performed contract could not be re- 
 scinded. Cadman v. Horner, 18 Ves. 
 10; Clermont v. Tasburgh, i Jac. & W. 
 112. 
 
 Mere loose and indefinite expressions 
 such a!s ought to put a person on his 
 
 ulars or conditions. Brett v. Clowser, 
 5 C. P. D. 376. 
 
 Where the contract is by parol, and of 
 such a character that it need not be in 
 writing, verbal declarations of the auc- 
 tioneer will be binding. Eden v. Blake, 
 14 L. J. (Exch.) 194., 
 
 1. Dykes v. Blake, 4 Bing. N. Cas. 
 463; Tamplin v. James, 15 Ch. D. 215; 
 Higginson v. Clowes, 15 Ves. 516; Swais- 
 land V. Dearsley, 29 Beav. 430; Stevens 
 V. Adamson, 2 Stark, 422; Flight c/. 
 Booth, I Bing. N. Cas. 370; Bonner </. 
 Baker, 8 La. Ann. 283; Newman v. 
 Jackson, 12 Wheat. (U. S.) 570; Bodin v. 
 McClosky, II La. Ann. 46; Stephenson 
 V. Jannary, 49 Mo. 465; Pemberlon v. 
 McRae, 75 N. C^r. 497; Deloach v. State 
 Bank, 27 Ala. 437; Shield v. Batts, 5 J. 
 J. Marsh. (Ky.) 12; Mason, v. Thomas, 
 24 111. 2S5; Sheldon v. Capron, 3 R. 1. 
 171; Campbell v. Johnson, 4 Dan.i (Ky.), 
 177;' Webster v. Haworth, 8 Cal. 21; 
 Paulett V. Peabody, 3 Nebr. ig6. 
 
 Where the vendor or auctioneer makes 
 statements regarding essential particu- 
 lars which prove 10 be untrue, specific 
 performance will not be enforced even if 
 the vendor did not know that the repre- 
 sentations were untrue. Black v. Wal- 
 ton, 32 Ark. 321. 
 
 A dwelling-house and offices were put 
 up (or sale by public auction, under a 
 printed condition in a common form that 
 the lot was sold subject to any existing 
 rights and easements of whatever nature; 
 and the printed particulars made no 
 mention of any easement, or of any 
 claim to an easement. As the result of 
 evidence, it appeared that the house was 
 subject to an easement belonging to the 
 owner of a neighboring tenement to use 
 the kitchen for particular purposes, and 
 that the vendor's solicitor knew of the 
 rumored existence of some such ease- 
 ment, but forbore to make inquiries. 
 No grant of an easement appeared from 
 the abstract, and its existence was, in 
 fact, disputed on the pleadings. In the 
 auction-room the plainliiff's solicitor said 
 he had heard of some such claim, but 
 had no definite information about it, and 
 the auctioneer, in hearing of the plain- 
 tiff's solicitor, on being questioned, told 
 the audience that they might dismiss the 
 subject of the rumored claims from their 
 minds, as nobody would probably ever 
 
 987 
 
Sale. 
 
 A UCTIONS AND A UCTIONEERS. 
 
 Farticulaia. 
 
 Competition Must be Fair. — It is the auctioneer's duty to see 
 
 guard are not necessarily fatal. Wells 
 V. I)ay, 124 Maste. 38; Scott v. Hanson, 
 I Russ. & M. 128; Dimmock v. Hallett, 
 L. R. 2 Ch. 21. 
 
 At a commissioner's sale a map was 
 exhibited representing a river as running 
 through the land. At some place where 
 the river was running through the land 
 were obstructions to navigation, although 
 it was navigable for boats above and be- 
 low the oijstructions. The land was 
 sold by the acre. Held, that the pur- 
 chaser was not entitled to a deduction 
 for the land forming the bed of the river. 
 Shands v. Triplet, 5 Rich. Eq. (S. Car.) 76. 
 
 Where a tract of land is sold in sepa- 
 rate and independent lots a defect in the 
 title to one parcel will not avoid or affect 
 the sale of another parcel; but a defect 
 in the tide to any one of several lots put 
 up and sold as one parcel avoids the sale 
 of the whole parcel. Mott v. Mott, 68 
 N. Y. 246. ' 
 
 A misdescription will avoid a sale even 
 if no fraud or wilful deception be proved. 
 Wall V. Stubbs, i Madd. 80; Dobell v. 
 Hutchinson, 3 A. & E. 355; Robinson v. 
 Musgrove, 8 C. & P. 469; 2 Moo. & R. 
 92; Denny v. Hancock, L. R. 6 Ch. i; 
 Mayer v. Adrian, 77 N. Car. 83; Taylor 
 V. Fleet, 4 Barb. (N. Y.) 105; Millingar 
 ■V. Daly, 56 Pa. St. 245. See Seymour 
 V. Delancey, 6 Johns. Ch. (N. Y.) 222; 
 King V. Bardeau, 6 Johns. Ch. (N. Y.) 38. 
 
 Or the vendor will be ordered by the 
 court to make a conveyance according to 
 the description given at the sale. Phil- 
 lips V. Higgins, 7 Lans. (N. Y.) 314. 
 
 To avoid the sale a purchaser must 
 have been deceived. Where he had been 
 informed of the misdescription, or where 
 the ambiguity had been explained to him, 
 he will be held to his contract. Fare- 
 brolher v. Gibson, i DeG. & J. 602; 
 Gunnis v. Erhart, I H. Bl. 290; Brad- 
 shaw V. Bennett, 5 C. & P. 48; Jewett 
 V. Miller, 10 N. Y. 402; Wood v. Martin, 
 66 Barb. (N. Y.) 241. 
 
 And the deception must not have been 
 occasioned by his own carelessness, as 
 where a person by mistake purchased 
 one of two lots offered for sale, thinking 
 that he was bidding for the otiier. Mal- 
 ms V. Freeman, 2 Keen, 25. See 
 Thompson v. Kelly, loi Mass. 291; s. 
 u., 3 Am. Rep. 353. 
 
 A mistake by which a purchaser is not 
 prejudiced, or of which he is aware, will 
 not avoid the sale. Leach v. MuUett, 3 
 C. & P. 115; Wright V. Wilson, 6 C. & 
 P. 734; Colby V. Gadsden, 34 Beav. 416; 
 Davis V. Evans, 62 Ala. 401. 
 
 Where the mistake in the description 
 is of such a character that the particulars, 
 on which the agreement was indorsed 
 included property which the vendor 
 never intended to sell, specific perform- 
 ance was refused. Manser v. Back, 6 
 Hare, 443. See Day v. Wells, 30 Beav. 
 220; Griffiths V. Jones, L. R. 15 Eq. 279. 
 
 Where the vendor or auctioneer dis- 
 covers mistakes, omissions, misde- 
 scriptions, or ambiguity before the sale, 
 notice should be distinctly given to the 
 bidders, and the ambiguity clearly ex- 
 plained in order to bind him. Manser 
 V. Back, 6 Hare, 443; Shelton v. Livius, 
 I L. J. Exch. 139; Page v. Cowasjee 
 Eduljee, L. R. i P. C. 127. 
 
 As a general rule mere expressions of 
 praise, or affirmations of value, provided 
 that they do not amount to an actual 
 misstatement of facts, will not render 
 the contract voidable by the purchaser, 
 although their tendency would doubtless 
 be to indispose the court to enforce spe- 
 cific performance at the suit of the ven- 
 dor. Fenton v. Browne. 14 Ves. 144; 
 Magennis v. Fallon, 2 Mai. 561; Scott v. 
 Hanson, ^ i Russ. & M. 128; Dimmock v. 
 Hallett, L. R. 2 Ch. 21. 
 
 Qualifying expressions, such as "con- 
 taining by estimation," "more or less," 
 or " thereabouts," have been held to im- 
 port that the precise quantity is not war- 
 ranted; but although they will cover 
 small and unintentional errors and inac- 
 curacies, they will not cover careless and 
 reckless statements, especially where the 
 vendor knew the exact quantity. Winch 
 V. Winchester, i V. & B. 375; Stevens 
 V, Giddings, 45 Conn. 507; Coons v. 
 North, 27 Mo 73; Lawrence v. Staigg, 
 8 R. L 256; G16ver v. Smith, i Desau. 
 (S. Car.) 433; Veeder j-. Fonda, 3 Paige 
 (N. Y.), 94; Russell t/. Houston, 5 Ind. 
 180; Jennings v. Monks, 4 Met. (Ky.) 
 103; Slothovver v. Gordon, 23 Md. i; 
 Jones V. Tatum, 19 Gratt. (Va.) 720; Fo- 
 ley V. Keon, 4 Leigh (Va.), 627; Gal- 
 braith v. Galbraith, 6 Watts (Pa.), 117; 
 Carmody v. Brooks, 40 Md. 240; Ellis v. 
 Hill, 6 Rich. (S. Car.) 37; Horn v. Den- 
 ton, 2 Sneed (Tenn.), 125; Davis v. 
 Evans, 62 Ala. 401; Marbury-i;. Stone- 
 street, I Md. 147; Brown w. Wallace, 4 
 Gill & J. (Md.) 479; Long v. Weller, 29 
 Gratt. (Va.) 347; Williams v. Bradley, 7 
 Heisk. (Tenn.) 54. 
 
 And where land is sold by the acre, 
 the parcel containing a certain number 
 of acres "more or less," to be ascer- 
 tained by measurement, the purchaser is 
 bound to take it though the quantit/ 
 
Sale. 
 
 A UCTIONS AND A UCTIONEERS. Unconditional. 
 
 that the goods are sold under a fair competition and for the best 
 price which they may bring under competition. ^ 
 
 Must Accept all Biddings. — He cannot without good and suiifi- 
 cient reason refuse to accept biddings, but he may refuse to ac- 
 cept the bids of incompetent persons, as infants, lunatics, drunk- 
 ards, or other irresponsible parties.** 
 
 Unconditional Sales. — Where the sale is without reserve it is il- 
 legal for the auctioneer to accept a bid from his principal or from 
 any one acting in his behalf. A sale without reserve means in all 
 cases, both at law and in equity, not merely that the property will 
 be peremptorily sold, but that neither the vendor nor any one on 
 his behalf will bid at the auction. ^ 
 
 Puffers. — A puffer in the strictest meaning of the word is a per- 
 son who without having any intention to purchase is employed by 
 the vendor at an auction to raise the price by fictitious bids, 
 thereby increasing competition among the bidders, while he him- 
 self is secured from risk by a secret understanding with the ven- 
 dor that he shall not be bound by his bids.* 
 
 should be considerably more than adver- 
 tised. Ashcora V. Smith, 2 Pen. & W. 
 (Pa.) 211 ; s. c, 21 Am. Dec. 437. 
 
 1. Fairfax v. Hopkins, 2 Cranch C. C. 
 134; Johnston v. Eason, 3 Ired. Eq. (N. 
 Car.) 330; Myers v. Sanders, 7 Dana 
 (Ky.), 506. 
 
 The highest bidder must become the 
 purchaser, but the auctioneer may, after 
 knocking down the property, reopen 
 the sale when there is sufficient evi- 
 dence that there was a higher bid. Pike 
 V. Bach, 38 Me. 302; s. c, 6i Am. Dec. 
 248. 
 
 Where an auctioneer who was selling 
 mortgaged property saw a purchaser un- 
 der the mortgagor approaching the place 
 of sale while the premises were under 
 the hammer, and immediately knocked 
 down the premises to his own brother for 
 half the sum due under the mortgage so 
 as to prevent competition, the sale was 
 held to be fraudulent and void. Jackson v. 
 Crafts. 18 Johns. (N. Y.) no. 
 
 Where there is a. doubt in the minds 
 of some of those present at an auction 
 sale about the title to the property, the 
 auctioneer will be justified in postponing 
 the sale until such doubt may be re- 
 moved to prevent a sacrifice of the pro- 
 perty. Roberts v. Roberts, 13 Gratt. 
 (Va.) 639; ». c, 70 Am. Dec. 435. 
 
 2. Kinney v. Showdey, i Tiill (N. Y.), 
 544; Den V. Zellers, 7 N. J. L. 153; Hol- 
 der V. Jackson, 11 N. C. C. P. 543. 
 
 3. Thornett v. Haines, 15 M. & W. 
 367; Warlow V. Harrison, 25 L. J. (Q. B.) 
 14; Meadows v. Tanner, 5 Madd. 34; 
 Robinson v. Wall, 10 Beav. 61. 
 
 A sale at which the owner secretly be- 
 comes a bidder is fraudulent and void. 
 
 Baham v. Bach, 13 La. 287; s. c, 33 Am. 
 Dec. 561. 
 
 If upon a sale stated to be without 
 reserve, or rather perhaps not stated to 
 be subject to a reserve, a bidding should 
 be made on the part of the seller, the 
 auctioneer ought in self-defence not to 
 take such bidding where the principal is 
 undisclosed; and he will be justified in 
 any case in rejecting such a bidding when 
 made mala fide. Warlow v. Harrison, 
 2g L. J. (Q. B ) 14; Bexwell v. Christie, 
 I Cowp. 395. 
 
 But where any sale by auction is de- 
 clared either in the particulars of sale or 
 the conditions to be subject to a right for 
 the seller to bid, it shall be lawful for the 
 seller or any one person on his behalf 
 to bid at such auction in such manner as 
 he may think proper. Bowleg v. Round, 
 5 Ves. 508; Jervise v. Clarke, i J. & W. 
 389; Shaw V. Simpson, i J. & W. 392; 
 Malins v. Freeman, 2 Keen, 25; Delves 
 V. Delves, L. R. 20 Eq. 77; Howard v. 
 Castle, 6 T. R. 642; Patterson 1/. Pres- 
 ton, 51 Md. 190. 
 
 There appears to be no objection to 
 the auctioneer disclosing the amount of 
 the reserve when his doing so is likely to 
 benefit his principal. Else v. Barnard, 
 28 Beav. 228. ' 
 
 An execution sale will not be vitiated 
 where the creditor procures a third party 
 to bid an amount not less than the 
 amount of the debt and expenses. Dex- 
 ter V. Shepard, 117 Mass. 480. 
 
 4. Peck V. List, 23 W. Va. 338; s. t., 
 48 Am. Rep. 398. 
 
 The leading English case on this sub- 
 ject is Bexwell v. Christie, i Cowp. 395. 
 In that case it was decided that an ac- 
 
Sale. 
 
 A UCTIONS AND A UCTIONEERS. 
 
 Foffen. 
 
 tion does not lie against an auctioneer 
 for selling a horse at the highest price 
 bid for him, contrary to the owner's ex- 
 press directions not to let him go un^ler 
 a larger sum named; otherwise, if the 
 owner had directed the auctioneer to 
 set the horse up at a particular price 
 and not lower. Lord Mansfield, in pro- 
 nouncing the opinion of the entire court, 
 says in substance: "The matter in 
 question is in itself of small value; but 
 in respect to the principles by which it' 
 must be governed it is a question of 
 great importance. Since the trial I have 
 mooted the point with many who are 
 not lawyers upon the morality and rec- 
 titude of the transaction. The question 
 is whether a bidding by the ~ owner of 
 goods at a sale under the condition that 
 the highest bidder should be the pur- 
 chaser is a bidding within the meaning 
 of such conditions of sale? It is not a 
 direction that there should be no bidding 
 under the price named by the owner, in 
 that case fifteen pounds; but the direction 
 is not to let the horse go under fifteen 
 pounds, which implies that there might 
 be a bidding under that sum. This is 
 equivalent to a private bid of that sum by 
 the owner. The question is whether the 
 owner can privately employ another per- 
 son to bid for him. The basis of all 
 dealings ought to be good faith; so more 
 especially in these transactions, when the 
 public are brought together upon a confi- 
 dence that the articles set up at a sale are 
 to be disposed of to the highest bidder; 
 which could never be the case if the 
 owner might privately and secretly en- 
 hance the price by a person employed for 
 the purpose; yet tricks and practices of 
 this kind daily increase and grow so fre- 
 quent that good men give in to the ways 
 of the bad and are dishonest in their own 
 defence. But such a practice was never 
 openly avowed. An owner of goods set 
 up for sale at an auction never yet bid in 
 the room for himself. If such a practice 
 was allowed, no one would bid. It is a 
 fraud upon the sale and upon the public. 
 The disallowing of it is no hardship upon 
 the owner, If he is unwilling that his 
 goods should go at an under price, he 
 may order them to be set up at his own 
 price and not lower; such a direction 
 would be fair; or he might do as was 
 done by Lord Ashburton, who sold a 
 large estate by auction: he had it insert- 
 ed in the conditions of sale that he him- 
 self might bid once in the course of 
 the sale, and he did bid once fifteen or 
 twenty thousand pounds. Such a con- 
 dition is fair, because the public are 
 then apprised upon what terms they bid. 
 
 The question then is, is a private bid- 
 ding by the owner fair? If not, it is 
 no argument ■ to say it is a frequent 
 custom; gaming, stock-jobbing, and 
 swindling are frequent, but the law for- 
 bids them all. Suppose there was ah 
 agreement privately with a particular 
 person that if he was the highest bidder, 
 so much would be abated; frequently 
 abatements from the price fixed by ihe 
 vendor are made on a private sale, and of 
 course legitimately; sometimes ten or fif- 
 teen per cent is thus abated. But a pri- 
 vate agreement of this sort between the 
 owner and the bidder at a sale by auc- 
 tion would be a gross fraud. What is 
 the nature of such a sale by auction ? 
 It is that the goods shall go to the 
 highest real bidder. But there would 
 be an end of that if the owner might 
 privately bid upon his own goods. There 
 is no contract with the auctioneer. He is 
 only an agent between the buyer and the 
 seller. He may fairly bid for a third per- 
 son who employs him, but not for the own- 
 er. Therefore upon full consideration I 
 am of opinion that a bidding by the owner 
 privately or its equivalent, a direction giv- 
 en to the auctioneer privately not to let the 
 property go under a certain sum, would 
 be a fraud upon the sale; and conse- 
 quently that this action against the auc- 
 tioneer for knocking off the horse to the 
 highest bidder below the price fixed by 
 the owner privately cannot be main- 
 tained." 
 
 The principles laid down in this case 
 prevail in the courts generally in Eng- 
 land and in this country to a much larger 
 extent than they did fifty years ago. 
 
 In Howard v. Castle, 6 T. R. 643, it 
 was decided that if the owner of goods or 
 an estate put up to sale at auction em- 
 ploy puffers to bid for him without de- 
 claring, it, it is a fraud on the real bid- 
 ders, and the highest bidder cannot be 
 compelled to complete the contract. In 
 that case Lord Kenyon says: " The par- 
 ties did not meet on equal terms; several 
 other persons besides the defendant bid, 
 who by so doing represented themselves 
 as embarking on their own judgment, 
 but it afterwards turned out that this was 
 false, and that it was an imposition prac- 
 tised by the plaintiff on the defendant, 
 for all these other persons were author- 
 ized by the plaintiff to bid for him. I 
 will not go into the general reasoning on 
 the subject, because it is very ably stated 
 by Lord Mansfield in Bexwell v. Chris- 
 tie, I Cowp. 395. The reasoning in that 
 case is founded on the noblest principles 
 of morality and justice, principles that 
 are calculated to preserve honesty be- 
 
 990 
 
Sale. 
 
 AUCTIONS AND AUCTIONEERS. 
 
 Puffers. 
 
 tween man and man.'' All the other 
 judges concurred with Lord Kenyon, Ch. 
 J.; Grove, J., saying, "nothing can be 
 more true than the doctrine of Bexwell 
 V. Christie, i Cowp. 395. If the owner 
 of goods put up to sale at auction wishes 
 that they shall not be sold under a parti- 
 cular price, he may declare so before the 
 auction begins, or he may reserve one 
 bidding for himself, or declare that he 
 has appointed a particular person to bid 
 for him; in either of these cases the par- 
 ties meet on fair terms. But the whole 
 of this was' a secret transaction unknown 
 to the defendant, and it was a fraud and 
 imposition upon him." 
 
 In Wheeler v. Collier, i Moo. & M. 
 123, it was decided: " If the owner of an 
 estate put up for sale by auction employ 
 a person to bid for him, the sale is void, 
 although only one such person be em- 
 ployed, unless it is announced at the 
 time that there is a person bidding for 
 the owner." Lord Tenterden, Ch. J., 
 said: "I am clearly of opinion this sale 
 is void in point of law. I am not called 
 upon to decide the case of one person 
 only being employed to bid ; here are 
 two, and it certainly makes a material 
 difference whether a person wishing to 
 purchase sees one or two persons bid- 
 ding against him. But I may not be un- 
 derstood to decide that case on that 
 ground; I will add that the strong in- 
 clination of my opinion is that if only 
 one person be employed to bid, the sale 
 is void; unless it is announced that there 
 is a person bidding for the owner, the 
 act itself is fraudulent. This was obvi- 
 ously implied in the case of Bexwell v. 
 Christie, i Cowp. 395; for the telling of 
 the auctioneer by the owner privately not 
 to let the property be sold for less than a 
 certain price was obviously the equiva- 
 lent of privately employing a single per- 
 son to make a single bid for the owner. 
 And this Lord Mansfield in that case held 
 rendered the sale fraudulent. 
 
 In Crowder v. Austin, 3 Bing. 368, the 
 vendor of a house stationed his servant 
 to join in the bidding at a public auction, 
 and the servant bid up to twenty-three 
 pounds after a bona-fide bidder had bid 
 twelve pounds. Held, that the sale could 
 not be enforced against a subsequent bid- 
 der. The judges expressly approved the 
 opinion of Lord Mansfield in Bexwell v. 
 Christie, though it had then been disap- 
 proved by the Lord Chancellor in Conol- 
 ly V. Parsons, 3 Ves. Jr. 625. In this 
 case it may be noted that there was 'but 
 one by-bidder, but obviously some of the 
 judges regarded this as not making the 
 least diflference. 
 
 In the case of Rex v. Marsh, 3 You. &. 
 Jer. 331, it was decided " that the em- 
 ployment of a puffer at a sale by auctioni 
 of property seized under an execution by 
 an agent of the crown, to whom a bid- 
 ding is reserved by a condition of sale, vi- 
 tiates the sale. And further, the miscon- 
 _duct of the purchaser does not preclude 
 him from objecting to the employment 
 of a puffer at a sale by auction." In that 
 case one of the conditions of the sale 
 was •' on the part of the crown, D. to be 
 at liberty to make one bidding but no- 
 more, and if the highest bidder, the sale 
 to be void." It was argued that if this 
 was allowed it would be injurious to the 
 interest of the crown, as in that case no 
 purchaser would be found. The court 
 refused to confirm the sale, though this- 
 bid wab reserved, and though it was 
 shown that the purchaser had acted im- 
 properly, and that the biddings of the 
 puffer did not exceed the value of the 
 property. 
 
 In Thornett v. Haines, 15 Mee. & W. 
 367, it was decided that " when a sale by 
 auction is advertised or stated by the auc- 
 tioneer to be without reserve, the em- 
 ployment by a vendor of a puffer to bid 
 for him without notice renders the sale 
 void and entitles the purchaser to recover 
 back his deposit from the auctioneer. 
 Pollock, C. B., says: "I adopt the law 
 as laid down by Lords Mansfield, Ken- 
 yon, and Tenterden. I think, however, 
 the decisions in the courts of law and 
 equity may be reconciled. There is no- 
 distinction between a puffer bidding up 
 to the buyer, or bidding by him at a dif 
 ferent stage of the sale; but if there* 
 were, it would not apply to this case, as 
 here Robinson was a puffer and bid im- 
 mediately before the plaintiff. The only 
 distinction between the cases in equity 
 and law is this, that in the former there 
 may be a reserved bidding without no- 
 tice, but that does not apply to the pres- 
 ent case when the sale was distinctly 
 stated and understood to be without re- 
 serve; and it matters not whether the an- 
 nouncement is made by the particulars- 
 of sale or by the auctioneer by parol. "■ 
 This decision accords with the decisions 
 of Lords Mansfield, Kenyon, and Tenter- 
 den, but the court has thought proper to- 
 base the decisions in part on the an- 
 nouncement by the auctioneer that the 
 sale was "without reserve," because- 
 when based on that groupd in part it 
 would accord with the decisions in the 
 chancery court with which these judges 
 did not agree, but with which they did. 
 not want unnecessarily to come in con- 
 flict. 
 
 991 
 
Sale. 
 
 AUCTIONS AND AUCTIONEERS. 
 
 Puffers. 
 
 In Green v. Baverstock; 14 C. B. N. 
 S., it was decided that "upon a sale of 
 goods by auction where the highest bid- 
 der is the purchaser, the secret empioy- 
 ment of a puffer on behalf of the vendor 
 is a fraudulent act and vitiates the trans- 
 action." In this case there was no an- 
 
 a horse which was being sold publicly at 
 auction would be enforced, as all have at 
 an auction sale a right to suppose they 
 are bidding on equal terms." 
 
 In Mainprice v. "Westley, 6 B. & S,, 
 Q. B. 427, it was questioned whether such 
 an action would lie against an auctioneer 
 
 nouncement that the sale was " without . as was suggested would lie in Warlow v. 
 
 reserve." But as it was a sale at auc- 
 tion to the highest bidder, it was regard- 
 ed by the court to be without reserve. 
 Byles, J., says, " What may be the 
 practice in the courts of chancery I do 
 not profess 10 understand, but the rule 
 of common law, I apprehend, is plain. 
 At a sale by auction when the highest 
 bidder is to be the purchaser, the secret 
 employment of a puffer by a vendor is a 
 fraudulent act. The sale is vitiated by 
 the fraud and void, unless the vendee 
 wiih knowledge of the fact has acted 
 upon it, so as to deprive himself of the 
 right to complain. This has been the 
 law of England and indeed of the whole 
 of Europe for a very long time. It was 
 a law of universal application even be- 
 fore the Christian era." 
 
 In the case of Warlow v. Harrison, I 
 Ell. & Ell., the plaintiff at an auction of 
 a horse, advertised by the auctioneer to 
 be sold without reserve, bid for the horse 
 a certain amount; the owner by a puffer 
 bid higher. The plaintiff having found 
 out that it was a puffer's bid would bid 
 no more, and the auctioneer knocked the 
 horse down to the puffer, not knowing he 
 was a puffer. The plaintiff tendered the 
 amount of his own bid to the auctioneer 
 and demanded of him the horse, which he 
 refused to deliver to him. Thereupon 
 the plaintiff brought a common-law ac- 
 tion against the auctioneer. The court 
 of exchequer chamber decided he was not 
 entitled to recover, because, though the 
 bid of the owner through the puffer was 
 fraudulent, and the auctioneer, had he 
 known 'the fact, ought to have refused the 
 bid and knocked the horse down to the 
 plaintiff, yet till it was knocked down to 
 him he' had no right to demand the horse, 
 and till the horse was knocked down to 
 the plaintiff the auctioneer was not the 
 plaintiff's agent, but only the agent of the 
 vendor, and therefore not liable to a suit 
 of this character, though he might have 
 been liable to the plaintiff on a declara- 
 tion complaining that the auctioneer had 
 undertaken to sell the horse without re- 
 serve and had not done so. 
 
 In Hopkins v. Tanqueray, 15 Com. 
 Bench. 130, Crowder, J., s^ys: "It is a 
 grave question whether a contract made 
 privately with one individual, that the 
 plaintiff would warrant the soundness of 
 
 Harrison, i Ell. & Ell. 309. 
 
 These cases show that the common law 
 courts of England have always main- 
 tained the views laid down by Lord 
 Mansfield in Bexwell v. Christie, i Cowp. 
 395; and they have conscientiously carried 
 them out, not permitting them to be frit- 
 tered away by nice distinctions. 
 
 But it was far otherwise in the English 
 chancery courts. In the case of Conolly 
 V. Parsons, reported in a note in 3 Vesey, 
 625, 626, 627, Lord Chancellor Lough- 
 borough expressed his dissatisfaction with 
 the opinion of Lord Mansfield, pro- 
 nounced about twenty years before, and 
 says (3 Vesey, 627): "I should wish it 
 to undergo a reconsideration ; for if it is 
 law it will reduce everything to a Dutch 
 auction by bidding downwards. I feel 
 vast difficulty to compass the reasoning 
 that a person does not follow his own 
 judgment because other persons bid ; that 
 the judgment of one person is deluded 
 and influenced by the bidding of others, 
 when it is publicly known that persons 
 are employed to bid, it would be very 
 foolish in anyone to let himself be so in- 
 fluenced." His idea evidently was that 
 puffers ought to be permitted in all cases 
 to bid, and if this was settled as the 
 law, that then certainly no harm could 
 result from it, as no real bidder would 
 then be influenced by the bidding of puf- 
 fers. But it seems, as has been fre- 
 quently said by the common-law judges, 
 that the effect of authorizing by law the 
 bidding of puffers would be to prevent 
 bidders from attending auctions, and auc- 
 tion sales would practically cease. This 
 would certainly be a public evil. The 
 idea that one bidder at a public auction 
 is not influenced by the bids of others, 
 expressed by Lord Loughborough, is a 
 very strange one. If there was truth in 
 it no one would ever employ puffers to 
 attend a public auction; yet Lord Lough- 
 borough in another part of the same 
 opinion says: " It is not doubted at any 
 sale, except where there is an express 
 stipulation to sell without reserve, that 
 there is somebody for the seller. The 
 buyer goes to the sale with this knowl- 
 edge, that he shall not get the article un- 
 der the price the seller thinks to be a rea- 
 sonable price. There are several articles 
 sold almost always by auction that would 
 
 992 
 
Sale. 
 
 A UCTIONS AND A UCTIONEERS. 
 
 Fnffera. 
 
 not probably be sold so if the vendor was 
 not allowed somebody to look after his 
 interest. There are not above three or 
 four purchasers of scarce and valuable 
 books; they would divide them if the per- 
 son selling had not some means of guard- 
 ing against that." Lord Loughborough 
 in this opinion also says that some acts 
 of Parliament exempting from auction 
 duty upon certain conditions sales, when 
 the owner or his agent bought in the 
 property, recognized the right of an 
 owner to employ puffers. He says; 
 " These acts of Parliament go upon its 
 being a usual thing and a fair thing for 
 the owner to bid." But the common-law 
 courts held that these acts of Parliament 
 did not in the least touch this question, 
 and that they intended only to exempt 
 from auction duties when the owner or 
 his agent could legally bid", that is, when 
 he expressly reserved the right to bid. 
 Thus Justice Grove says in Howard v. 
 Castle, 6 T. R. 643: "Nothing can be 
 more wise than the doctrine laid down in 
 the case of Bexwell v. Christie, i Cowp. 
 395, which is not in the least impeached 
 by the acts of Parliament in reference to 
 the exemption from auction duties upon 
 certain conditions where the owner or his 
 agent buys in the property." In the case 
 in which Lord Loughborough expressed 
 these views no decision was rendered, 
 the cause being compromised by the 
 parties. 
 
 The views thus expressed by Lord 
 Loughborough were in direct conflict 
 with the law which had been settled by 
 the unanimous decision of the court some 
 twenty years before in the case of Bex- 
 well V. Christie, i Cowp. 395. It would 
 seem therefore impossible that it could 
 really be true, as stated by Lord Lough- 
 borough: '"It is not doubted at any sale, 
 except where there is an express stipula- 
 tion to sell without reserve, that there is 
 somebody there for the seller." This is 
 to say that in his time all who attended 
 auction sales expected as a matter of 
 course that there would be puffers there 
 employed by the seller in direct violation 
 of what was then the undisputed law of 
 the land as settled by the courts. 
 
 As showing the influences of the views 
 of Lord Loughborough, we need but re- 
 view the decisions of the English chan- 
 cery courts on this subject. 
 
 In Smith v. Clarke, 12 Ves. 477, it was 
 decided: " The circumstance that a per- 
 son bid at an auction, under the private 
 direction of the vendor, for the purpose 
 of preventing a sale at a sum specified 
 as the value, is no objection to a specific 
 performance." The master of the rolls. 
 
 I C. of L. — 64 
 
 Sir William Grant, says: " I do not mean 
 to state a proposition so general as that 
 there can be no fraud through the medium 
 of persons employed by the vendor." 
 Lord .Loughborough, in Connally v. Par- 
 sons, 3 Ves. 625, note, appears to doubt 
 whether there can be that species of 
 fraud; whether in any case the purchaser 
 can be said to be defrauded as being 
 drawn in through eagerness of zeal and 
 competition with others. " I do not go 
 that length, for if the person is employed 
 not for the defensive precaution with a 
 view to prevent a sale at an under-value, 
 but to screw up the price, I am not ready 
 to say that is such a transaction as can 
 be justified in a court of equity. Neither 
 do I say if several bidders are employed 
 by the vendor, in that case a court of 
 equity would compel the purchaser to 
 carry the agreement into execution, for 
 that must be done merely to enhance the 
 price. It is not necessary for the defen- 
 sive purpose of protection against a sale 
 at an under-value." 
 
 Here we see a part of Lord Loughbor- 
 ough's reasoning in Connally v. Parsons, 
 3 Ves. 625, note, repudiated, and a part 
 of it adopted, that part, namely, which 
 holds that one puffer but no more than 
 one, can be employed, if he is privately 
 instructed not to go beyond a value fixed 
 by the vendor, for this adoption of the 
 views of Lord Loughborough is regarded 
 as necessary in order to furnish the ven- 
 dor "a protection against a sale at an 
 under-value." 
 
 In Flint v. Woodin, 8 Hare, 618, it was 
 held: " Though -a. puffer ought not to be 
 employed to screw up the price, or take 
 advantage of the ignorance of other bid- 
 ders, yet a progressive bidding to a fixed 
 or reserved bidding by a person employed 
 by the vendor, without the knowledge of 
 the other bidders, will not necessarily be 
 deemed to be taking advantage of their 
 ignorance." In that case the purchaser 
 at the auction had some days before the 
 sale indicated to the vendor that he might 
 give seve.i hundred pounds sterling for 
 certain real estate, and the vendor em- 
 ployed a puffer secretly with instructions 
 to run the property up to six hundred and 
 ninety-five pounds sterling, -and he bid 
 upon the property through a long series 
 of biddings to their final closing, when it 
 was knocked down to the purchaser at 
 seven hundred pounds sterling, he being 
 the one who had indicated he might give 
 that price. There might have been, un- 
 der the circumstances of this case, no 
 taking advantage of the purchaser; but 
 if the action of -this puffer was not screw- 
 ing up the price, which the vice-chancellor 
 
 993 
 
Sale. 
 
 A UCTIONS AND A UCTIONEERS. 
 
 FuJfers. 
 
 said ought not in any case to be allowed, 
 then what is the meaning of this phrase 
 " screwing up the price" ? 
 
 In Woodward v. Miller, 2 Col. Ch. 279, 
 a puffer was employed to bid real estate 
 to be sold at auction up to a certain price. 
 At the sale the auctioneer declared that 
 " it was a bona-fide sale, and if there were 
 any puffers in the room he should hate 
 himself." This was regarded as not 
 equivalent to a representation that the 
 sale was to be without reserve, and 
 though the puffer made repeated bids, 
 the sale was specifically enforced. 
 
 In the case of Mortimer v. Bell, i L. 
 R. Ch. 10, it was decided that a vendor 
 could not employ more puffers than onfe, 
 though they were limited to the same 
 price, unless he expressly stipulated that 
 he might, and Loi-d Cransworth, chan- 
 cellor, from his opinion obviously disap- 
 proved of the chancery rule permitting 
 the employment of one puffer. He says: 
 "The conditions of sale in this case con- 
 tained the usual provision, that the high- 
 est bidder should be the purchaser. 
 Courts of law have held such a condition 
 prevents the vendor from interposing 
 
 any reservation It is not disputed 
 
 that the vendor may stipulate for the 
 power of buying in the property, if it is 
 going at a sum below what he considers 
 a fair price; but in the absence of such 
 stipulation courts of law hold that it is 
 a fraud in the vendor to interpose any 
 bidder to prevent property going to the 
 person who offers the highest price. This 
 is certainly the rule established in courts 
 of. law; but it is said adifferent rule pre- 
 vails in equity, and that without an ex- 
 press stipulation a vendor may always fix 
 a reserved price, and authorize a person 
 to bid for him, so as to prevent the prop- 
 erty going under that price. That such 
 a rule to some extent prevails I cannot 
 doubt. Its existence has been recognized 
 by many judges of the highest reputa- 
 tion. Sir William Grant, in Smith v. 
 Clarke, 12 Ves. 477, 481, not only recog- 
 nized, but apparently approves the rule. 
 He seems to think it fair and just that 
 persons putting up property for sale by 
 auction should be at liberty to employ a 
 person to bid for them up to a stipulated 
 price to prevent its being sold at an under- 
 value. When such a right is stipulated 
 for there is no fraud, no deception. It is 
 said that even without express stipulation 
 such a right is understood to exist. I 
 confess I think it much better that it 
 should be nntified. If it be not notified, 
 there is a difference between the langBage 
 evnressed and that which is understood 
 !(j Lie its import. The question in such 
 
 case may always arise, whether persons 
 bidding were aware of the rule. The 
 practice of the court of chancery in mod- 
 ern times at all events is to stipulate ex- 
 pressly for the right not to sell under a 
 fixed price, and so by implication to em- 
 ploy a person to bid up to that price." 
 
 This decision was rendered in 1865, 
 and we may gather from it that the rules 
 with reference to puffing, which had been 
 laid down formerly by the chancery court, 
 were found to work badly, and that the 
 courts of chancery, to avoid the difficul- 
 ties which arose in their application, had 
 in modern times constantly stipulated in 
 their decrees that any property ordered 
 to be sold by the court should not be sold 
 at less than a fixed price, proclaimed be- 
 fore the auction commenced, which was 
 in effect adopting a rule which for eighty 
 years had prevailed in the common-law 
 courts, when a seller of lands or other 
 property decided to protect himself 
 against a sacrifice of the property. The 
 lord chancellor also expressed his disap- 
 probation of the rules of the equity courts 
 in reference to puffing, and his preference 
 of the rules of the courts of common law, 
 because in his judgment the rules which 
 had been adopted by the courts of equity 
 tended to deceive bidders at auction. It 
 is obvious that there never should have 
 been different rules on this subject pre- 
 vailing in the courts of common law and 
 of chancery ; and while the courts of 
 chancery in modern times, as appears 
 from their decisions, admitted the pro- 
 priety of the rules laid down on the sub- 
 ject of puffing by the common-law courts, 
 yet they were obviously embarrassed by 
 the decisions of the chancery courts, 
 which were binding on them as prece- 
 dents. 
 
 To remove this trouble in 1867 an act 
 of Parliament was passed entitled "the 
 sale of land by auction act," the fourth 
 section of which recites that "there is at 
 present a conflict between her Majesty's 
 courts of law and equity in respect to the 
 validity of sales by auction of land, when 
 a puffer has bid, although no right of 
 bidding on behalf of the owner was re- 
 served, the courts of law holding that all 
 such sales are absolutely illegal, and the 
 courts of equity under some circum- 
 stancea giving effect to them; but even 
 in the courts of equity the rule is unset- 
 tled, and that it is expedient that an end 
 should be put to such conflicting and un- 
 settled opinions," and it provides that 
 after the passage of the act " whenever a 
 sale by auction of land would be invalid 
 at law by reason of the employment of a 
 puffer the same shall be deemed invalid 
 
 994 
 
Sale. 
 
 A UCTIONS AND A UCTJONEERS. 
 
 Puffers. 
 
 in equity as well as at law." The fifth 
 section after reciting that "as sales of 
 land by auction are now conducted, 
 many of such sales are illegal and could 
 not be enforced against an unwilling pur- 
 chaser, and .it is expedient for the safety 
 of both seller and purchaser that such 
 sale should be so conducted as to be bind- 
 ing on both parties." enacts "that the 
 particulars or conditions of sale by auc- 
 tion of any land shall state whether such 
 land will be sold without reserve, or sub- 
 ject to a reserved price, or whether a 
 right to bid is reserved; if it is stated that 
 such land will be sold without reserve, or 
 to that effect, then it shall not be lawful 
 for the seller to employ any person to 
 bid at such sale or for the auctioneer to 
 take knowingly any bidding from any 
 such person." By the sixth section it is 
 enacted that ' 'where any sale by auction of 
 land is declared, either in the particulars 
 or conditions of such sale, to be subject 
 to a right for the seller to bid, it shall be 
 lawful for the seller, or any one per- 
 son on his behalf, to bid at such auc- 
 tion in such manner as he may think 
 proper." 
 
 As might naturally be expected, the 
 courts in the United States -have to a 
 considerable extent rendered conflicting 
 decisions on the effect on a sale at auc- 
 tion of puffing, some following the rule 
 of the common-law courts of England 
 more or less modified, and others follow- 
 ing the rules of the chancery courts of 
 England more or less modjfied. Some- 
 times the decisions of the same court 
 have been inconsistent, as for instance 
 in Steel v. Ellmaker, ii S. & R. (Pa.) 80, 
 the case ot Bexwell v. Christie, supra, 
 and Lord Mansfield's opinion therein, 
 were criticised and disapproved. Subse- 
 quently this ' same court, in Pennock's 
 Appeal, 14 Pa. St. 449, overruled their 
 previ6us decision and highly commended 
 the decision in Bexwell v. Christie, supra. 
 Chief- Justice Gibson delivering the opin- 
 ion of the court says: " It is impossible 
 to doubt the principle of the civil law 
 adopted by Lord Mansfield in Bexwell 
 V. Christie, supra. Good faith is an in- 
 dispensable ingredient of fair dealing; 
 and it is impossible to imagine a purpose 
 consistent with it, for which sham-bid- 
 ding is necessarily employed. The ven- 
 dor may so prescribe conditions of sale 
 which will enable him to return the prop- 
 erty should it not come up to his price ; 
 and if he do not produce the effect 
 openly, why should he do it covertly? 
 Common honesty requires that all 
 should be fair and above-board. To 
 screw up the price, as it has been aptly 
 
 termed, by secret machinery, can be no 
 less than a fraud; and a sham-bidder can 
 be used for no other purpose. The de- 
 cisions on the subject have fluctuated ; 
 but the largest license allowed in any of 
 them has been to employ a single puffer; 
 yet whether there be one or whether 
 there be twenty, the mischief is the same, 
 except as to the degree of it. It has 
 been said the employment of a plurality 
 discloses too clearly to be mistaken, not 
 a design to protect the property from be- 
 ing sacrificed, but to give an artificial im- 
 pulse to the sale of it. That touches the 
 honesty of the vendor's motive: but what 
 have the bidders to do with it? Should 
 he actually think that not less than 
 twenty could protect it, the sale would 
 siill be, according to all the cases, fraud- 
 ulent and void. It is not his motive but 
 his acts by which they are affected; and 
 these present a question not of actual 
 but of legal fraud." He also says: "The 
 weight of authority is now, as it was at 
 first, in favor of the true principle. What- 
 ever may have been the state of the bal- 
 ance when Mr. Sugden collected the 
 cases in his treatise on 'vendors' his 
 own opinion evidently coincided with 
 that of Lord Mansfield; and Chancellor 
 Kent expressly adhered to it. I con- 
 curred in the decision of Steel v. Ellma- 
 ker, II S. & R. (Pa.) 80, exclusively on 
 the foundation of precedent; but the bal- 
 ance of authority Is conclusively the 
 other way, and that case has neither prin- 
 ciple nor precedent to support it." 
 
 In Staines v. Shore, 16 Pa. St. 203; 
 s. c, 55 Am. Dec. 492, the court said: 
 " In the present case the ruling judge in- 
 structed the jury that if the horse was 
 actually worth the sum paid for him, the 
 buyer got the valife of his money and 
 could not have been defrauded. The 
 fallacy of the principle is assuming that 
 there is a standard of value independent 
 of the wishes and wants of the bidders 
 and every man is willing to buy by 
 it. What is the worth of anything? 
 The apophthegm of Hudibras answers 
 truly 'just so much money as it will 
 bring.' A man is defrauded, whenever 
 he is incited by artful means to bid 
 more than he otherwise would; for no 
 fair purpose is the employment of a puf- 
 fer necessary, and it must vitiate every 
 sale in which recourse is had to it." 
 
 The English common-law cases are 
 fully sustained by the case of Towle v. 
 Levitt, 23 N. H. 367. 
 
 In Baham v. Buche, 13 La. 287; s. c, 
 33 Am. Dec. 561, it was held, that the 
 owner of property may withdraw it, be- 
 fore the highest bid is accepted by the 
 
 995 
 
Sale. 
 
 A UCTIONS AND A UCTIONEBRS. 
 
 Fnffeni, 
 
 auctioneer, but has no right to bid himself, 
 unless he publicly reserves this right. 
 
 In delivering the opinion of the court 
 Eastis, J., adopts the principles of Bex- 
 well V. Christie, supra, and remarks: 
 "The doctrine in that case has not been 
 followed in all cases, but we apprehend 
 that time and scrutiny will re-establish 
 its force, whenever the principles of law 
 and public morals are coincident." To 
 the same effect is Correjoller v. Mossy, 
 2 La. 607. 
 
 In McDowell v. Simms, 6 Ired. Eq. 
 278 (N. Car.), Pearson, J., after review- 
 ing a number of English cases and say- 
 ing that he inclined to the opinions ex- 
 pressed'by Lords Mansfield and Kenyon 
 says: " It is impossible, as Lord Lough- 
 borough and Sir William Grant at- 
 tempted to do, to run a dividing 'line so 
 as to say when this by-bidding is intended 
 for puffing and when merely to prevent 
 property being sacrificed. In the nature 
 of things any by-bid tends to inflate the 
 price more or less, except it be an- 
 nounced to be a bid for the owners of 
 the land." 
 
 In tlie National Bank of Metropolis v. 
 Sprague, 20 N. J. Eq., it was decided: 
 "That the employment of puffers by 
 creditors, in whose behalf property is 
 offered for sale at public auction, for the 
 purpose of increasing the price by fic- 
 ticious bids, is a fraud upon honest bid- 
 ders; and a buyer at such sale can be re- 
 lieved from his purchase." 
 
 In the case of Reynolds v. Dechaums, 
 24 Tex. 174, the spirit of the English 
 cases on the subject of puffing appears 
 to be approved. 
 
 In Veazie v. Williams. 8 How. (U. S.) 
 153, the rule of the English common-law 
 courts as to the effect of puffers on a 
 sale at auction was approved by the Su- 
 preme Court of the United States. 
 
 In Hindez/.Pendleton, Wythe Rep.(Va.) 
 145. Chancellor Wythe says: "The act 
 of by-bidding is a dolus malus : i. The 
 by-bidder offering a price for the thing 
 proclaimed to be sold professeth a wish 
 to buy it; which profession is false, for 
 he not only doth not wish to buy the 
 thing but wishes another man to buy it 
 and tempteth him to bid for it. 2. The 
 by-bidder instead 'of being one who 
 would be a buyer is in truth the seller 
 disguised." The chancellor set aside the 
 sale in that case because a puffer bid at it. 
 
 In Peck V. List, 23 W. Va. 338 ; s. 
 c, 48 Am. Rep. 398, the court said^: 
 " It appears that the weight of the 
 authorities in the United States sus- 
 tain the rules in reference to the ef- 
 fect of puffing laid down by the Eng- 
 
 lish common-law courts rather than 
 those laid down by the English chancery 
 courts. And in view of the fact that 
 after nearly a hundred years of experi- 
 ence and a vigorous pressing of their re- 
 spective advocates of these opposing 
 rules with reference to the effect of puf- 
 fing there has been an abandonment in 
 England of the rules laid down by the 
 chancery courts and a candid admission 
 by its advocates of the superior excel- 
 lence of the rules laid down by the com- 
 mon-law courts, it seems we cannot hesi- 
 tate to adopt them, especially as they are 
 based on better reason and are more 
 definite and easy of application and tend 
 to the promotion of honesty in the deal- 
 ings of mankind. It will be observed, 
 that most of the cases, where there have 
 been by-bidders, they were employed by 
 the owners of the property about to be 
 sold at auction, that is, were puffers m 
 the strict sense of the word. But it is 
 obviously unimportant whether the by- 
 bidder is employed by the owner of the 
 land or by some one else having a pecu- 
 niary interest in the auction about to be 
 made, and who stands in such a relation 
 to it, that he can make .good his assur- 
 ance to the by-bidder, that he shall not 
 be held responsible for his bid, if it hap- 
 pen to be the highest bid made. Tlie 
 real essence of the fraud is not that the 
 owner is bidding for the property, but it 
 consists in the fact, that a by-bidder pre- - 
 tending to be a bona-fide bidder deceives 
 honest bidders, raises the price of the 
 property by fictitious bids, increasing 
 competition, while he himself has good 
 reason to believe, and does believe, that 
 he is secure from any risk of being held 
 personally liable for his bids. It is im- 
 material from whom he derives this as- 
 surance of immunity, provided the party 
 giving the assurance expressly or impli- 
 edly has the power either legally or prac- 
 tically to make good the assurance." 
 
 See Miller v. Barnard, 2 Houst, (Del.) 
 559; Moncrief v. Goldsborough, 4 H. & 
 McH. (Md.) 281; s. c, I Am. Dec. 407; 
 Curtis w. Aspinwall, 114 Mass. 187; s. c, 
 ig Am. Rep. 332; Towle v. Leavitt, 23 
 N. H, 360; s. c, 55 Am. Dec. 195; Nat. 
 Ins. Co. V. Loomis, 11 Paige (N.Y.), 431; 
 Fisher v. Hersey. 17 Hun (N. Y.), 370; 
 Trust w. Delaplaine, 3 E. D. Smith (N.Y.), 
 219; Wolfe V. Luyster, i Hall (N. Y.), 
 146; Morehead v. Hunt, i Dev. Eq. (N. 
 Car.) 35; Smith v. Greenlee, 2 Dev. L. 
 (N. Car.) 126; s. c, 18 Am. Dec. 564; 
 Woods V. Hall, i Dev. Eq; (N. Car.) 411; 
 Pennock's Appeal, 14 Pa. St. 446; Don- 
 aldson V. McRoy, I Browne (Pa), 346; 
 Goode V, Hawkins, 2 Dev. Eq. (N. Car.) 
 
 996 
 
Sale. 
 
 A UCTIONS AND A UCTIONEEHS. 
 
 Puffers. 
 
 Bidder using Improper Influences. — A sale will be set aside where 
 a person desirous of purchasing prevents others by his improper 
 conduct from bidding' against him, as where the purchaser had 
 chilled the sale by an appeal upon the sympathies of those pres- 
 ent, or where he engaged a well-known agent of the vendor to 
 bid for him, the bidder being mistaken for a puffer. The fraud 
 must, however, be clearly shown. ^ 
 
 Agreements not to Bid. — Agreements not to bid at pubHc auction 
 are in general void, as against public policy, and tending to fraud, 
 and vitiate the sale ; but this rule extends only to combinations 
 having for their object to stifle fair competition, with the design 
 of purchasing at a price less than the fair value of the property.^ 
 
 393; Bailey J/. Morgan. Busb. L, (N. Car.) 
 352; Whitaker v. Bond, 63 N. Car. 290; 
 Darst V. Thomas, 87 111. 222. 
 
 Where at a sale of several lots at 
 auction puffers had been employed, evi- 
 dence that they had bid as such upon 
 some lots is admissible to show that their 
 bids upon other lots were mala fide. 
 Yerkes v. Wilson, 8i* Pa. St. 9. 
 
 A mock auction with sham bidders 
 who pretend to be real bidders for the 
 purpose of selling goods above their 
 value is an offence at common law, and 
 transactions at such auctions cannot be 
 supported against a purchaser either at 
 law or in equity. Musgrove z/. Robinson, 
 8 C. & P. 469; R. V. Lewis, 11 Cox C. C. 
 404. 
 
 To avoid a sale on account of the 
 biddings of puffers the purchaser must 
 object as soon as he receives knowledge 
 of such bidding, Latham v. Morrow, 6 
 B. Monr. (Ky.)6_3o; McDowells. Simms, 
 6 Ired. Eq. (N. Car.) 278; s. c, 57 Am. 
 Dec. 595; Tomlinson v. Savage. 6 Ired. 
 Eq. (N. Car.) 430; Backenstoss v. Stabler, 
 33 Pa. St. 251; Stains v. Shore, 16 Pa. 
 St. 200. 
 
 And he must show that he was preju- 
 diced by it. Veazie v. Williams, 8 How. 
 (U. S.) 134; Tomlinson w. Savage, 6 Ired. 
 Eq. (N. Car.) 430; Curtis v. Aspinwall, 
 114 Mass. 187. See Buchaz v. Walker, 
 19 Mich. 224; East v. Wood, 62 Ala. 313. 
 
 Where a by-bidder under an agree- 
 ment with the owner runs up the price 
 of property and it is knocked down to 
 him, he shall hold the property against 
 Buch owner, because the agreement is 
 fraudulent, and a party to a fraudulent 
 agreement cannot allege that it was 
 fraudulent to avoid its effect. Traughton 
 V Johnston, 2 Hayw. (N. Car.) 328; s. u., 
 2 Am. Dec. 626. 
 
 The vendor cannot himself avoid a. 
 sale where he has employed the puffers. 
 Small V. Boudinet, g N. J. Eq. 381. 
 
 Where one who was insolvent and un- 
 
 able to comply with the terms of a, sale 
 bid only to operate upon the known de- 
 sire of the purchaser to obtain the prop- 
 erty, the court refused to give the pur- 
 chaser relief. Williams v. Bradley, 7 
 Heisk. (Tenn.) 54. Compare Ex parte 
 Whitaker, L. R. 10 Ch. 446. 
 
 1. Abbey v. Dewey, 25 Pa. St. 413; 
 Sharp V. Long, 28 Pa. St. 433; Dick v. 
 Lindsay, 2 Grant Cases (Pa.), 431; Ham- 
 ilton V. Hamilton, 2 Rich. Eq. (S. Car.) 
 355; Crutchfield v. Thurman, 4 Bush. 
 (Ky.)4g8; Foster w. Pugh, 12 Sm. & M. 
 (Miss.) 4t6; The Sparkle,' 7 Benedict (C. 
 C), 528; Mapps V. Sharpe, 32 111. 13; 
 Benz V. Hines, 3 Kans. 390; Dale v. 
 Shirley, 5 B. Monr. (Ky.) 492; Griffith v. 
 Judge, 49 Mo. 536; Swofford v. Garmon, 
 51 Miss. 348; Barrett v. Bath Paper Co., 
 13 S. Car. 128; Underwood v. McVeigh, 
 23 Gratt. ('Va.) 409; Baents v. Cole, 7 
 Blackf. (Ind.) 265; s. c, 41 Am. Dec. 
 226; Plaster v. Burger, 5 Ind. 234; Gil- 
 bert V. Carter, to Ind. 17; Martina. Ran- 
 lett, 5 Rich (S; Car.), 541; Bethel v. 
 Sharp, 25 III. 173; 'Vantrees w. Hyatt, 5 
 Ind. 487; Mills V. Rogers, 2 Litt. Ky. 
 217; 'Walter v. Gernant, 13 Pa. St. 515; 
 Hogg V. Wilkins, i Grant (Pa.), 67; 
 Twining v. Morrice, 2 Bro. Ch. 326. 
 
 2. James v. Fulcrod, 5 Tex. 512; s. c, 
 55 Am. Dec. 743; Hawley v. Cramer, 4 
 Cow. (N. Y.) 718; Jones v. Caswell, 3 
 Johns. Cas. (N. Y.) 29; s. c, 2 Am. Dec. 
 134; Doolin V. Ward, 6 Johns. (N. Y.)i94; 
 Wilbur V. Howe, 8 Johns. (N. Y.) 444; 
 Troup V. Wood. 4 Johns. Ch. (N.Y.)228; 
 Thompson v. Davies, 13 Johns. (N. Y.) 
 112; Piatt V. Oliver, i McLean (U. S.), 
 295; Hamilton v. Hamilton, 2 Rich. Eq. 
 (S. Car.) 355; s. c, 46 Am. Dec. 58; 
 Smith w. Greenlee, 2 Dev. L. (N.Car.) 128; 
 s. c. , 18 Am. Dec. 564; Hannay -0. Eve, 
 
 3 Cranch (C. C), 242; Armstrong w .Toler, 
 II Wheat (U. S.) 258; Mitchell w. Smith, 
 
 4 Dall. (Pa.) 269; s. c, 2 Am. Dec. 417; 
 Bolt V. Rogers. 3 Paige (N. Y.), 154; 
 Hunt V. Knickerbacker, 5 Johns. (N. Y.) 
 
 997 
 
Sale. 
 
 A UCTIONS AND A UCTIONEERS. 
 
 Bids. 
 
 Manner of Bidding. — The biddings should be made in an open 
 and undisguised manner. No secret signs between the bidder, 
 and the auctioneer should be allowed, for the effect of this would 
 be to give that bidder an advantage over the others.^ 
 
 Bids may be Retracted. — Before the fall of the hammer either 
 party may revoke the auctioneer's authority. Every bidding is 
 but an offer on one side, which is binding on neither until it receives 
 assent. A bidder may retract his bidding, although the conditions 
 of the sale provide that no person shall retract his bidding.® 
 
 The Deposit. — It is usual at auction sales to require part of the 
 purchase-money to be paid down as a guarantee for the fulfilment 
 of the contract. Payment of the deposit is considered as a pay- 
 ment of part of the purchase-money, and not as a mere pledge.* 
 
 327; Bartle v. Nutt, 4 Pet. (U. S.) 184; 
 Crozier v. Carr, ii Tex. 376; Allen v. 
 Stephanus, 18 Tex. 670; Farr v. Sims, 
 Rich. Eq. Cas. (S. Car.) 122; s. c, 24 Am. 
 Dec. 396; Dudley w. Little, 2 Ohio, 504; 
 s. c.,15 Am. Dec. 575; Gardiner z/. Morse, 
 25 Me. 140; Hook V. Turner, 22 Mo. 333; 
 Gulick V. Ward, 5 Halst. (N. J.) 87; 
 Mills V. Mills, 40 N. Y. 546; Swan v. 
 Chorpenning, 20 Cal. 182; Kerwer v. 
 Allen, 31 Iowa, 578; Loyd v. Malone,"23 
 111. 43; s. c,., 74 Am. Dec. 179; Brown z/. 
 Hogle, 30 111. 119; Slater t/. iMaxwell, 5 
 Wall. (U. S.) 268; Nat. Bank of Metrop- 
 olis V. Sprague, 20 N. Ji Eq. 159; Car- 
 rington v. Caller, 2 Stew. 175; Fuller v. 
 Abrahams, 3 Brod. & B. 116; Levi v. 
 Levi, 25 Eng. L. & Eq. 377. 
 
 Where at the public sale of the per- 
 sonal property of an intestate the widow 
 purchased many articles at a nominal 
 price, the bystanders refusing to bid 
 against her, the sale will not be void if 
 the auctioneer conducted the sale fairly, 
 after due notice, and without connivance 
 with the widow. Woody v. Smith, 65 
 N. Car. T16. 
 
 The attempt to prevent competitiott 
 must be successful to avoid the sale. 
 The attempt alone will not be sufficient. 
 Haynes v. Crutchfield, 7 Ala. 189; Gil- 
 bert V. Carter, 10 Ind. 16; Buckley v. 
 Briggs, 30 Mo. 452. 
 
 But an agreement to unite in a bid at 
 auction sale for the joint benefit of the 
 parties thereto is not void if not dis- 
 honest in its motive or injurious in its 
 consequence. James v. Fulcrod, 5 Tex. 
 512; s. c, 55 Am. Dec. 743; Phippen v. 
 Stickney, 3 Mete. (Mass.) 385; Goode v. 
 Hawkins, 2 Dev. Eq. (N. Car.) 393; 
 Smullf. Jones, 6 Watts & S.(Pa.)i22; Piatt 
 w. Oliver, I McLean (U. S.), 301; Smith 
 V. Greenlee, 2 Dev. (N. Car.) 121; s. c, 
 18 Am, Dec. 564; Switzer v. Skijes, 3 
 Gil. (111.) 529; s. c, 44 Am. Dec. 723; 
 
 Hunt V. Elliott, 80 Ind. 245; Nat. Bank 
 of Metropolis v. Sprague, 20 N. J. Eq. 
 
 159- 
 
 An auction sale will not be set aside 
 because the purchaser who was bidding 
 for a third person agreed with another 
 agent of the same person that the latter 
 should not also bid. Allen v. Stephanus, 
 18 Tex. 658. ' 
 
 1. Conover v. Walling, 15 N. J. Eq. 
 173. 
 
 ' But a valid bid may be made by letter. 
 
 50 J where a testator by his will di- 
 rected that his estate should be sold at 
 auction, and the sale was advertised ac- 
 cordingly, A. ocfered by letter a certain 
 sum. No other person bid as much, and 
 the land was conveyed to A. Held, to be 
 a valid sale by auction within the terms 
 of the will. Tyree v. Williams, 3 Bibb. 
 (Ky.) 368; s. c, 6 Am. Dec, 663. 
 
 Where the sale is subject to certain 
 conditions, a bid coupled with other con- 
 ditions need not be received by the auc- 
 tioneer. Moore v. Owsley, 37 Tex. 603. 
 
 An agent may be empowered to bid at 
 an auction sale in behalf of a principal. 
 Brown v. Johnson, 12 S. & M. 39S; s. t., 
 
 51 Am. Dec. 118. 
 
 2. Payne z/.-Cave, 3 T. R. 148;, Man- 
 ser V. Back, 6 Hare, 443; Byrne v. Van 
 Tienhoven, 5 C. P. D. 344; Crotenkemper 
 V. Achtermeyer, 11 Bush (Ky.), 222. 
 
 The retraction should be loud enough 
 to be heard by the auctioneer, otherwise it 
 arnounts to nothing. Jones v. Nanney, 
 McCle. 39. 
 
 In cases where a written contract is 
 necessary, it seems that a purchaser may 
 retract his bidding after the lot has been 
 knocked down to him, but before the 
 auctioneer has actually made the entry. 
 3 Stark. Ev. 3d Ed. 1196; Gwathney v. 
 Cason, 74 N. Car. 5; s. c, 21 Am. Rep. 
 484. 
 
 3. Palmer v. Temple, 9 A. & E. 508; 
 
Sale. 
 
 A UCTIONS AND A UCTIONEERS. 
 
 The Deposit. 
 
 Completion of Contract. — A purchaser who, after his bid has 
 been received, refuses to comply with the conditions of the sale, i 
 
 Thompson z/. Kelly, loi Mass. 291; Cur- 
 tis V. Aspinwall, 114 Mass. 187; Pope 'v. 
 Burrage, 115 Mass. 282; Bleeker v. 
 Graham, 2 Edw. Ch. (N. Y.) 647; Hew- 
 lett V. Davis, 3 Edw. Ch. (N. Y.) 338; 
 Wood V. Mann, 2 Sumner (C. C), 316; 
 Maryland, etc.. Building Soc. v. Smith, 
 41 Md. 516; Marshall v. Rose, 86 111. 
 374- 
 
 The terms of the sale usually provide 
 for the time and mode of payment of de- 
 posit, and where this is the case the 
 purchaser cannot safely pay it at any 
 other time or in any other mode, except 
 to the vendor himself or by his direction. 
 Young V. Guy, 8 Beav. 147. See Pinck- 
 ney v. Hagadorn, i Duer (N. Y.), 89. 
 
 Where the deposit is paid to the auc- 
 tioneer as agent of the seller, it is his duty 
 to pay it over to his principal on demand. 
 Edgell V. Day, L. R. i C. P. 80; Hancock 
 V. Gomez, 58 Barb. (N. Y.) 490; Murray 
 V. Vanderbilt, 39 Barb. (N. Y.) 140. See 
 Minor V. Barker, 26 La. Ann. i6o. 
 
 But where he receives it merely as a 
 stakeholder until the title has been per- 
 fected, or some other condition of the 
 sale has been complied with, he will be 
 liable to the one who ultiinately becomes 
 entitled to it: Bleeker v. Graham. 2 
 Edw. Ch. (N. Y.) 647; Carew v.. Otis, i 
 Johns. (N. Y.) 418; Prevost v. Gratz, i 
 Pet. (C. C.) 364; Burrough v. Skinner, 5 
 Burr. 2639. Unless the party claiming 
 the deposit has by his acts induced him 
 to pay it over to the other party. EUi- 
 son V. Kerr, 86 111. 427. 
 
 A purchaser at an auction sale of real 
 estate, who, in accordance with the terms 
 of sale, has paid to the auctioneer a por- 
 tion of the purchase- price, may, upon 
 failure of the vendor to convey a perfect 
 title as agreed, maintain an action to re- 
 cover his deposit, either against the auc- 
 tioneer or the vendor, or both, and is 
 entitled to interest from the time of a 
 demand for the money and a refusal to 
 pay. He is entitled, however, to but one 
 satisfaction ; and a recovery and satisfac- 
 tion of the judgment against either the 
 vendor or auctioneer will discharge the 
 other. Where, therefore, in an action 
 against the vendor, plaintiff failed to 
 prove a demand, and so was refused in- 
 terest, held, that the satisfaction of said 
 judgment was a bar to an action against 
 the auctioneer, although in the latter 
 action proof was given of a demand and 
 refusal. Cockcroft v. MuUer, 71 N. Y. 
 
 ,^67- 
 
 Where the contract is rescinded and 
 
 IS 
 
 the deposit recovered by the purchaser 
 on the ground of fraud on the part of the 
 auctioneer, the vendor, though innocen: 
 of the fraud, cannot recover the amount 
 of the auctioneer as money had and re- 
 ceived to his use. Murray v. Mann, 2 
 Exch. 558. 
 
 The verdor becomes entitled to the de- 
 posit on the completion of the contract. 
 Harrington v. Hoggart, i B. & Ad. 
 577- 
 
 Or where the purchaser fails or refuses 
 to complete the contract according to the 
 terms of the sale. Thomas u. Brown, i 
 Q. B. D. 714; Bleeker v. Graham, 2 
 Ed\y. Ch. (N. Y.) 647. 
 
 The purchaser becomes entitled to the 
 deposit when the contract is rescinded on 
 the ground of fraud or misrepresentation 
 on the part of the vendor or the auc- 
 tioneer. Thornett v. Haines, 15 M. & 
 W. 367; Aberaman Iron Works v. Wick- 
 ens, L. R. 4 Ch. loi. 
 
 Or if the vendor refuses or is unable to 
 perform it. Boyman v. Gutch, 7 Bing. 
 379; Wilson V. Wilson, 14 C. B. 616. 
 
 Where the purchaser becomes entitled 
 to the deposit he may sue either the 
 principal or the auctioneer for it. Teaffe 
 V. Simmons, 11 Allen (Mass.), 342. 
 
 Although it is the law that an auction- 
 eer holding the deposit on a purchase 
 may be made a defendant in an action 
 for specific performance, yet, as a general 
 rule, the proper practice is not to make 
 him a defendant when the deposit is of 
 small amount, unless he refuses to pay it 
 into court when required; but where the 
 deposit is of large amount, he may be 
 properly made a defendant, unless he has 
 paid it into court before action brought. 
 Earl of Egmont v. Smith; Smith v. Earl 
 of Egmont, L. R. 6 Ch. D. 469. 
 
 The plaintiff, who had bought property 
 at an auction and paid a deposit to the 
 auctioneers, brought an action against 
 the vendors and the auctioneers to have 
 the contract rescinded, the deposit repaid 
 with interest, the costs of the action paid, 
 and for damages. The statement of 
 claim alleged that all, or nearly all, of 
 the biddings previous to that of the 
 plaintiff were fictitious, and were either 
 biddings by the vendors or their agents, 
 or were announced by the auctioneer 
 without any bidding having in fact been 
 made. The auctioneers applied for 
 liberty to pay the deposit into court, and 
 to have the action dismissed against them 
 on such payment being made. The 
 Master of the Rolls made an order that, 
 
 999 
 
Sale. 
 
 A UCTIONS AND A UCTIONEERS. 
 
 Frauds. 
 
 liable in damages to the vendor, and the measure of damages will 
 be the difference in price on a resale, the vendor acting bona fide 
 and with reasonable care.* 
 
 8. Statute of Frauds. — It was formerly doubted whether sales by 
 auction were within the meaning of the statute, as it was thought 
 that the publicity of such sales ought to be sufficient to guard 
 against fraud. It is now, however, clearly settled that auction 
 sales, with the exception of such as are held by order of the court, 
 are within the statute, and that they, therefore, require compliance 
 
 question of the purchaser's liability. 
 Weast V. Derrick, loo Pa. St. 509. 
 
 At a public sale on thfe 13th day of 
 August, 1878, a. carriage was sold to 
 plaintifif upon a credit of six months 
 without interest, the purchaser to give 
 notes with approved security. With this 
 condition he did not comply, but left the 
 carriage upon an understanding .that it 
 was not to be taken away until paid for. 
 On the gth day of October, 1878, the 
 vendor sold the carriage to the defendant;, 
 and about the 1st day of February, 1879, 
 the plaintiff called to pay for and take 
 away the carriage. Held, that neither 
 the right of property nor the right of 
 possession passed to plaintiff in virtue of 
 his having bid off the carriage at the sale, 
 and that, under the underscanding, he 
 could only have acquired such right by 
 paying for the carriage within a reason- 
 able time. Matthews v. McElroy, 79 
 Mo. 202. 
 
 Where a mare was sold at auction on 
 six months' credit, the purchaser being 
 required to execute his note drawing 
 interest at six per cent, it was held that 
 he was not entitled to the mare until he 
 had tendered the note or a sum of money 
 equal to the principal and interest due 
 upon the note at its maturity, Wainscott 
 V. Smith, 68 Ind. 312. See Wade v. 
 Moffett, 21 111. 110; s. t., 74 Am. Dec. 79. 
 
 On a sale of goods on credit by a li- 
 censed auctioneer, where the vendee 
 refuses to take them the owner may 
 bring an action for damages in his own 
 name before the expiration of the term of 
 credit, though he cannot sue for the price 
 till the credit expires. The proper 
 measure of damages in such a case is the 
 difference in price obtained at a resale. 
 Girard v. Taggard, 5 S. & R. (Pa.) 19;. 
 s. c, 9 Am. Dec. 325. 
 
 Where upon a sale at auction of nu- 
 merous articles of personal property the 
 purchaser is given the option of choosing 
 from a quantity, the privilege being sold 
 as successive choices, he must make his. 
 choice forthwith. Coffman v. Hampton, 
 2 W. & S. (Pa.) '377; s. c, 37 Am. Dec. 
 511. 
 
 the vendors undertaking to pay the 
 auctioneers their costs of the action 
 without prejudice to how they should 
 ultimately be borne, and to pay any 
 interest and damages to which the plain- 
 tiff might be held entitled, and the auc- 
 tioneers undertaking, in the event of the 
 vendors not carrying out their under- 
 taking, to pay to the plaintiff interest on 
 the deposit up to the time of payment 
 into court, and the costs of the action up 
 to and including that application in the 
 event of the court holding the plaintiff 
 entitled to such interest and costs, the 
 auctioneers should be at liberty to pay 
 the deposit into court, and that all further 
 proceedings against them should be 
 stayed. Held, on appeal, that the order 
 must be discharged, the auctioneers not 
 having submitted to give the plaintiff all 
 the relief which he could in any event be 
 entitled to against them, for that if the 
 allegations in the statement of claim 
 were established the plaintiff would be 
 entitled to have judgment against them 
 for the deposit with interest, and to have 
 an order for costs of the action against 
 all the defendants. Heatley v. Newton, 
 L. R. 19 Ch. D. 326. 
 
 And he has a lien upon the estate for 
 the amount. Wythes v. Lee. 3 Drew, 
 396; Turner v. Marriott, L. R. 3 Eq. 744; 
 Torrance v. Bolton, L. R. 14 Eq. 124. 
 
 1. Ashcom V. Smith, 2 P. & W. (Pa.) 
 211; s. c, 21 Am. Dec. 437; Tompkins 
 ■a. Haas. 2 Pa. St. 75; Coffman v. Hamp- 
 ton, 2 W. & S. (Pa.) 377; s. c, 37 Am. 
 Dec. 511. 
 
 But the jury are not bound by this 
 mode of estimation if they can discover 
 any other more agreeable to the truth. 
 Coffman v. Hampton, 2 W. & S. (Pa.) 
 377; s. c, 37 Am. Dec. 511. 
 
 Where a purchaser of land at a public 
 sale fails to comply with the conditions 
 of sale, he can only be held liable for the 
 deficiency in price caused by a second 
 sale when the conditions of the second 
 sale are the same, or are not more 
 onerous than those of the first sale. The 
 fact that the court prescribed the terms of 
 the second sale has no bearing upon the 
 
 1000 
 
Sale. 
 
 A UCTIONS AND A UCTIONEERS. Memorandum. 
 
 with the formalities imposed by it as much as do sales of less 
 publicity.^ 
 
 Memorandum of Sale. — A memorandum signed by the auc- 
 tioneer for both parties is sufficient within the statute to validate 
 a sale, the auctioneer being deemed the agent of both parties.* 
 
 What the Memorandum, must Contain. — The auctioneer's memo- 
 randum must contain, although not necessarily in a detailed man- 
 
 1. Davis V. Rowell, 2 Pick. (Mass.) 64; born v. Chamberlin. loi Mass. 409; Mor 
 
 s. c, 13 Am. Dec. 398; Bent v. Cubb, 9 
 Gray (Mass.), 397; People v. White, 6 
 Cal. 75 ; Bozza v. Rowe, 30 111. 198; 
 Baker v. Jameson, 2 J. J. Marsh. (Ky.) 
 547; Brock V. Jnnes, 8 Tex. 78; Bleecker 
 V. Franklin, 2 E. D. Smith (N. Y.), 93; 
 Ruckle V. Barbour, 48 Ind. 274; Sander- 
 lin V. Roman Cath. Churcii, R. M. 
 Charlt. (Ga.) 551; Bell v. Owen, 8 Ala. 
 312; Burke v. Haley, 2 Gilm. (111.) 614; 
 Gossard v. Ferguson, 54 Ind. 519; Mad- 
 den V. Johnson, 7 Ind. 394; Ennis v. 
 Walker, 3 Blackf. (Ind.) 472; Brent v. 
 Green, 6 Leigh (Va.), i5; Davis v. Rob- 
 ertson, I Mill Const. (S. Car.) 71; s. c, 
 ■ 12 Am. Dec. 611; Christie v. Simpson, i 
 Rich. (S. Car.) 407; Meadows v. Mead- 
 ows, 3 McCord (S. Car.), 458; s. c. 15 
 Am. Dec. 645; Elfe v. Gadsdin, 2 Rich. 
 (S. Car.) 373; Jackson v. Catlin, 2 Johns. 
 (N. Y.) 248; Bicknell v. Byrnes, 23 How. 
 Pr. (N. Y.) 486; Bailey v. Ogden, 3 Johns. 
 (N. Y.) 399; s. c, 3 Am. Dec. 509; Evans 
 ■V. Ashley, 8 Mo. 177; Hart v. Rector, 13 
 Mo. 497; Alexander v. Merry, 9 Mo. 510; 
 Dewall V. Peach, i Gill (Md.), 272; Sing- 
 stack V. Harding, 4 H. & J. (Md.) 186; 
 s. c, 7 Am. Dec. 669; Spencer v. Pearce, 
 10 Gill & J. (Md.) 294; Pike v. Balch, 38 
 Me. 302; s, c. 61 Am. Dec. 248. 
 
 Where several separate lots of goods 
 are sold at auction to one purchaser on 
 separate bids, the contract is an entirety, 
 in regard to the Statute of Frauds. Jen- 
 ness V. Wendell. 51 N. H. 63; s. c, 12 
 Am. Rep. 48 ; Coffman v. Hampton, 2 
 W. & S. (Pa.) 377; s. c, 37 Am. Dec. 511. 
 Compare Messer v. Woodman, 22 N. H. 
 172; s. r. , 53 Am. Dec. 241. 
 
 2. O'Donnell v. Leeman, 43 Me. 158; 
 s. c. , 69 Am.' Dec. 54; Alna v. Plummer, 
 '4 Greenl. (Me.) 258: Cleaves v. Foss, 4 
 Greenl. (Me.) i; Pike v. Balch, 38 Me. 
 302; Episcopal Church v. Wiley, 2 Hill 
 Ch. (S. Car.) 584; s. u., 30 Am. Dec. 386; 
 Meadows v. Meadows, 3 McCord (S. 
 Car.), 458: s. c, 15 Am. Dec. 645; Gor- 
 don V. Sims, 2 McC. Ch. (S. Car.) 151; 
 Anderson v. Chick, i Bailey Eq. (S. Car.) 
 118; Doty V. Wilder, 15 111. 410; s. c. 60 
 Am. Dec. 756; Lake u. Campbell. 18 111. 
 106; Burke v. Haley, 2 Gilm. 111. 614; 
 Bent V. Cobb, 9 Gray (Mass.), 397; San- 
 
 ton V. Dean, 13 Mete. (Mass.) 385; Pugh 
 V. Chesseldine, 11 Ohio, 109; Craig v. 
 Godfrey, i Cal. 415; s. c, 54 Am. Dec. 
 299; White T. Crew. i6 Ga. 416; Dawson 
 V. Miller, 20 Tex. 171; s. c, 70 Am. Dec. 
 380; Harvey v. Stevens, 43 Vt. 653; Tall- 
 man V. Franklin, 14 N. Y. 584; Baptist 
 Church V. Bigelow, 16 Wend. (N. Yl) 28; 
 McComb V. Wright, 4 Johns. Ch. (N. Y.) 
 659; Lewis V. Wells, 50 Ala. 198; Adams 
 V. McMillan, 7 Port. (Ala.) 73; Brent v. 
 Green, 6 Leigh (Va.), 16; Hunt v. Gregg, 
 8 Blackf. (Ind.) 105 ; Hart v. Woods, 
 7 Blackf. (Ind.) 568; Gill v. Hewett, 7 
 Bush (Ky.), 10; Linn Boyd, etc., Co. v. 
 Terrill, 13 Bush (Ky.), 463; Smith v. Ar- 
 nold, 5 Mason (C. C.), 414. Compare 
 Bamber v. Savage, 52 Wis. no; s. c, 38 
 Am. Rep. 723; Adams v. Scales, i Baxt. 
 (Tenn.) 337; s. c, 25 Am. Rep. 772; 
 Ruckle V. Barbour. 48 Ind. 274; Balizen 
 V. Nicolay, 53 N. Y. 467. 
 
 In Tennessee and New York the con- 
 tract for tlie sale of land must in all cases 
 be signed by the vendor. Frazer v. Ford, 
 2 Head (Tenn.), 464; Burrell v. Root, 
 40 N.Y. 498; Worrall v. Munn, 5 N. Y. 
 229; Nat. Ins. Co. v. Loomis, 11 Paige 
 (N. Y.), 431; Champlin v. Parish, 11 
 Paige (N. Y.), 465; Coles v. Bowne, 10 
 Paige (N. Y.), 526; McWhorter v. McMa-, 
 han, ID Paige (N. Y.), 386; Miller v. Pel- 
 letier, 4 Edw. Ch. (N. Y.) 102. 
 
 It would seem that a contract signed 
 by an auctioneer on behalf of an undis- 
 closed proprietor is a valid contract under 
 the statute. Benjamin on Sales (4th Ed), 
 § 268; Beer v. London, etc., Co., L. R. 
 20 Eq. 412. 
 
 Upon a sale by auction of real estate 
 in lots, the particulars stated that the sale 
 was by direction of the proprietor; but the 
 name of the vendor did not appear. A 
 memorandum indorsed on a copy of the 
 particulars was signed by the purchaser 
 of one of the lots, and by the auctioneer 
 on behalf of the vendor. Held, that the 
 vendor was sufficiently described, and that 
 the memorandum was sufficient to satisfy 
 the requirements of the Statute of Frauds; 
 and specific performance of the agree- 
 ment decreed at the suit of the purchaser 
 Sale V. Lambert, L. R. 18 Eq. i. 
 
 ]noi 
 
Sale. 
 
 A UCTIONS AND A UCTIONEERS. Memorandum. 
 
 ner, the parties, the subject-matter, the promises on both sides, 
 the price, and, under the original and ordinary language of the 
 statutory provision, the consideration. ^ 
 
 May be Signed by Clerk. — The clerk of the auctioneer is clothed 
 with the same authority as his master, and an entry by him under 
 the direction of the auctioneer is sufficient.* 
 
 Signature of Auctioneer not sufficient when he Sells his own Goods. 
 
 1. Pomeroy on Contracts, § 87; Bailey 
 •V. Ogden, 3 Johns. (N. Y.) 3gg; s. c, 3 
 Am. Dec. 509; Price v. Durin, 56 Barb. 
 (N. Y.) 647; Meadows v. Meadows, 3 
 McCord (S. Car.), 458; s. c. , 15 Am, Dec. 
 645; O'Donnell z». Leeman, 43 Me. 158; 
 s. -c, 69 Am. Dec. 54; Ridgway i). In- 
 gram, 50 Ind. 148; Norris v. Blair, 39 
 Ind. 90; s. c, 10 Am. Rep. 135; Johnson 
 v. Buck, 35 N. J L. 338; Soles v. Hick- 
 man, 20 Pa. St, 180; McFarrow's Ap- 
 peal, II Pa. St. 503; Morton v, Dean, 13 
 Mete. (Mass,) 385; Doty v. Wilder, 15 
 111. 407; s. c, 60 Am. Dec. 756; Gwath- 
 ney u. Cason, 74 N. Car. 5; Lewis v. 
 Wells, 50 Ala. 198. 
 
 The plaintiff sent a mare to be sold by 
 auction at the defendant's repository. 
 The defendant advertised the mare for 
 sale by auction on the 2Bth of March, 
 1872, and circulated a printed catalogue 
 of the horses to be sold at his sale, with' 
 conditions of sale annexed, in which the 
 plaintiff's mare was described as lot 49. 
 The defendant had a sales ledger, which 
 was headed, " Sales by auction, 28 March, 
 1872," in which the plaintiff's mare was 
 also numbered 49; but neither the cata- 
 logue nor the conditions of sale were an- 
 nexed to the sales ledger, nor were they 
 referred to therein. On the 2Sth of 
 March, 1872, the lots described ■ in the 
 catalogue were put up by the defendant 
 for sale under the conditions. The plain- 
 tiff's mare was put up , for sale and 
 knocked down to M. for ;^33, and there- 
 upon the defendant's clerk wrote in the 
 columns of the sales ledger left blank for 
 this purpose, the name of M. as pur- 
 chaser, and the price. M. afterwards 
 refused to take the mare. Held, that the 
 catalogue and the conditions of sale were 
 not Sufficiently connected with the entries 
 in the sales ledger to make a note or 
 memorandum in writing of a contract by 
 M. to satisfy the Statute of Frauds. 
 Pierce v. Corf, L. R. 9 Q. B. 210. 
 
 At a sale by auction subject to con- 
 ditions, the'auctioneer entered in his sale- 
 book the names of the vendor and pur- 
 chaser, the subject-matter of the sale, 
 and the amount of the purchase- money, 
 but omitted, in the entry, to embody or 
 make any reference to the conditions 
 
 of sale.. There was no other memoran- 
 dum or contract in writing. Held, that 
 there was no sufficient contract in writing 
 within the Statute of Frauds, and specific 
 performance was refused as against the 
 purchaser. Rishton v. Whatmore, L. R. 
 8 Ch. D. 467. 
 
 All the essentials of a rliemorandum 
 need not be contained in one single paper. 
 They may be gathered from two or more 
 detached papers if the signed memoran- 
 dum contains such reference to them as 
 to make them a part of it. But parol 
 evidence' is not allowable to show the 
 connection between the different papers. 
 Gowen v. Klous, loi Mass. 449; Johnson 
 V. Buck, 35 N. J. L. 338; Adams v. 
 McMillin, 7 Port. (Ala.) 73; Price v. 
 Durin, 56 Barb. (N. Y.) 647; Horton v. 
 McCarty, 53 Me. 394; Tallman ii. Frank- 
 lin, 14 N. Y. 584; 3 Duer (N. Y.), 395; 
 Hinde ZJ. Gale, 7 East, 538. Compare 
 Hobby V. Finch, Kirby (Conn.), 14, and 
 White V. Watkins, 23 Mo. 423. 
 
 A mistake made by the auctioneer in 
 making out the memorandum as in the 
 name of the vendo'r may be -corrected in' 
 equity. Pugh v. Chesseldine, ii Ohio, 
 log; s. c, 37 Am. Dec. 414. . See Hal- 
 leck V. Guy, 9 Cal. i8i; s. c, 70 Am. 
 Dec. 643. 
 
 2. Smith V. Jones, 7 Leigh (Va.), 165; 
 s. c, 30 Am. Dec. 493; Brent v. Green, 
 6 Leigh (Va.,), 16; Baptist Church v. Bige- 
 low, 16 Wend. (N. Y.) 28; Frost v. Hill, 
 3 Wepd. (N. Y.) 386; Johnson v. Buck, 
 35 N. J. L. 338; Harvey v. Stevens, 43 
 Vt. 653; Green z/. Merrian, 28 Vt. 801; 
 Norris v. Blair, 39 Ind. 90; Hart v. 
 Woods, 7 Blackf. (Ind.) 568; Doty w. 
 Wilder, 15 111. 407; s. c, 60 Am. Dec. 
 756; Alna V. Plummer, 4 Greenleaf (Me.), 
 258; Simpson v. Pettus, 7 Ala. 543; 
 Adams V. McMillan, 7 Port.' (Ala.) 73; 
 Gill u. Bicknell, 2 Cush. (Mass.) 355; 
 Cherry z/. Long, Phill. L. (N. Car.) 466. 
 Compare Carmack v. Masterson, 3 Stew. 
 & P. (Ala.) 411; Meadows v. Meadows, 
 3 McCord (S. Car.), 458; s. c, 15 Am. 
 Dec. 645; Pope v. Chafee, 14 Rich. Eq. 
 (S. Car.) 69; Entz v. Mills, i McMuU. (S. 
 Car.) 453; Christie v. Simpson, I Rich. 
 (S. Car.) 407; Cathcart v. Kiernaghan, 5 
 Strobh. (S. Car.) 129. 
 
 1002 
 
Memorandum. AUCTIONS— AUDITA QUERELA. 
 
 Definition. 
 
 — If the auctioneer -is himself the vendor, or if he has himself an 
 interest in the contract of sale, besides being a nominal party to 
 it, he cannot bind the purchaser by signing a memorandum in 
 writing to take the case out of the Statute of Frauds.^ 
 
 Parties alone can take advantage of defects in memorandum, 
 and if they complete the sale without objection, a third party can- 
 not object.* 
 
 AUDITA QTIEEELA. 
 
 1. Definition. 
 
 2. Nature of the Proceeding. 
 
 3. Parties. 
 
 4. Pleadings and Evidence. 
 
 5. Judgment and its Incidents. 
 
 6. What Grounds will sustain the 
 
 Action. 
 
 7. Cases where the Writ will not Lie. 
 
 8. Substitutes for the Writ. 
 
 9. Concurrent Remedies. 
 
 1. Definition. — Audita querela is the name of a writ constituting 
 the initial process in an action brought by a judgment defendant 
 to obtain relief against the consequences of the judgment, on ac- 
 count of some matter of defence or discharge, arising since its 
 rendition, and which could not be taken advantage of other- 
 wise.^ 
 
 2. Nature of the Proceeding. — Audita querela is a regular suit, with 
 its usual incidents, pleadings, issues of law and fact, trial, judg- 
 ment, and error.* The writ is directed to the court where the 
 judgment was rendered and where the record remains.^ It is a 
 writ of common right.* And even where authorized by statute. 
 
 1. TuU V. David, 45 Mo. 446; Johnson 
 ■v. Buck, 35 N. J. L. 338; Smith v. Arnold, 
 5 Mason (C. C), 414; Bent v. Cobb, 9 
 Gray (Mass.). 397; s. c, 69 Am. Dec. 295; 
 Wright V. Dannah, 2 Campb. 205. 
 
 A guardian acting as auctioneer in sell- 
 ing land of his ward under authority of 
 the court is not authorized as such to sign 
 for the purchaser a memorandum to take 
 the sale out of ;:he Statute of Frauds. Bent 
 V. Cobb, 9 Gray (Mass.), 397; =. c, 69 
 Am. Dec. 295. 
 
 2. Lewis V. Wells, 50 Ala. 198. 
 
 3. Bouvier's Law Diet.; Rapalye & 
 Lawrence's Law Diet.; Bac. Abr. tit. 
 Audita Querela; 2 Broom & Had. Com. 
 (Wait's Ed.) 270; 3 Blackst. Com. 405. 
 
 »The meaning of the phrase is thus ex- 
 plained: "It is a writ directed to the 
 court, stating that the complaint of the 
 defendant hath been heard, audita querela 
 defendentis." 3 Blackst. Com. 406. 
 
 It is said to have been first introduced 
 into the English practice about the tenth 
 year of Edward III. See Young v. Col- 
 let, T. Raym. 89 
 
 4. Brooks v. Hunt, 17 Johns. (N. Y.) 
 
 It is also said to be in the nature of an 
 equitable suit, in which the equiiable 
 
 rights of the parties will be regarded. 
 Lpvejoy v. Webber, 10 Mass. 103; Wad- 
 dington v. Vredenbergh, 2 Johns. Cas. 
 (N. Y.) 227; 3 Blackst. Com. 406. Com- 
 pare Williams v. Roberts, 8 Hare, 315. 
 
 Audita querela is a remedial process 
 which bears solely upon the wrongful 
 acts of the opposite party, and not upon 
 the erroneous judgments or acts of the 
 court. It is a writ in which the plaint 
 sounds in tort. Little v. Cook,- 1 Aik. 
 (Vt.) 363; Lovejoy v. Webber, 10 Mass. 
 103; Bracket! v. Winslow, 17 Mass. 159. 
 Compare Tittlemore v. Wainwright, 16 
 Vt. 173. 
 
 5. Harper v. Kean, 11 Serg. & R. (Pa.) 
 299; Pouitney v. Treasurer, 25 Vt. 168. 
 
 A county court has no jurisdiction of a 
 writ of audita querela which is brought to 
 vacate or in any way affect a judgment 
 rendered by the supreme court. Warner 
 V. Crane, 16 Vt. 79. 
 
 6 Nathan v. Giles, 5 Taunt. 558; Lis- 
 ter V. Mundell, i Bos. & P. 427; Emery 
 V. Patton, 9 Phila. (Pa.) 125, 
 
 But two cases hold that the writ is not 
 one of right, and that it cannot be issued 
 upon an ex parte application. Troop v. 
 Ricardo, 9 Jur. N. S. 887; 33 Beav. 122; 
 Newhart v. Wolfe, 102 Pa. St. 561. 
 
 1003 
 
Parties, 
 
 A UDITA Q UERELA. Pleadings and Evidence. 
 
 its applicability and incidents must be governed by common-law 
 principles.^ 
 
 3. Parties. — All the parties to the judgment complained of must 
 join in the writ of audita querela or be regularly served.** It is, in 
 general, only available in behalf of one who was prejudiced by the 
 judgment at its rendition. ^ And when the basis of the writ is 
 altogether personal, it will die with the person and not survive to 
 his representatives.* 
 
 4. Pleadings and Evidence. — The writ of audita querela must be 
 served upon the parties made defendants to it.' A declaration 
 should then be filed. This must recite the whole record of the 
 recovery, and show a ^w^zi&xil gravamen or cause of complaint.** 
 
 using the name of the judgment- debtor 
 against his consent, to vacate a judg- 
 ment, execution, and levy in favor of a 
 prior attaching creditor, without showing 
 a legal right to the property levied upon 
 paramount to the right of such creditor. 
 Essex Mining Co. v. Bollard, 43 Vt. 238. 
 While an erroneous judgment against 
 an infant remains in force, this process 
 will not lie in favor of an officer against 
 whom judgment has been recovered for 
 neglecting to serve execution on the in- 
 fant. Solace V. Downing, Brayt. (Vt,)27. 
 
 4. Conn., etc., R. v. Bliss, 24 Vt. 411. 
 
 But when the writ goes to the founda- 
 tion of the judgment, it may be pros- 
 ecuted by the executor or administrator. 
 Conn., etc., R. v. Bliss, 24 Vt. 411. 
 
 5. Commonwealth v. Berger, 8 Phila. 
 (Pa.) 237; King v. Jeffrey, 77 Me. 106. 
 
 The writ must be served on a corpora- 
 tion like any other process. Clark v. 
 Hydraulic Co., 12 Vt. 435. 
 
 A judgment for default of appearance 
 cannot be taken in audita querela. Com- 
 monwealth V. Berger, 8 Phila. (Pa.) 237, 
 
 Verification of Writ. — An affidavit to 
 the truth of the facts set forth in the writ 
 is generally required. It should be an- 
 nexed to the writ or become part of the 
 process. Hinman v. Swift, 18 Vt. 315. 
 
 It may be made by any other compe- 
 tent person as well as by the defendant. 
 Job V. Walker, 3 Md. 129. 
 
 riling the Process. — The duty imposed 
 upon tiie judge allowing a writ of audita 
 querela (Vt. Comp. Stats. 292, § 8), to 
 take a copy of the whole process and 
 recognizance, "an', file the same in the 
 office of the county clerk, in the county 
 in which such writ is allowed," is di- 
 rectory in its character, and if any injury 
 results from the neglect of the judge to 
 so leave a copy, it should not be visited 
 upon those upon whom no duty was im- 
 posed or obligation rested for its per- 
 formance. Kiddei" v. Hadley, 25 Vt. 544. 
 
 6. Oakes v. School District, 33 Vt. 156; 
 
 1. Staniford w. Barry, i Aik. (Vt.) 321; 
 Johnson v. Plimpton, 30 Vt. 420; Love- 
 joy V. Webber, 10 Mass. loi. 
 
 3. Melton V. Howard, 7 How. (Miss.) 
 103; Herrick v. Bank, i Williams (Vt.), 
 584; Gleason v. Peck, 12 Vt. 56; Tittle- 
 more V. Wainwright, 16 Vt. 173; Star- 
 bird V. Moore. 21 Vt. 529. 
 
 Nor is the rule altered by the fact that 
 one of the defendants was a party to the 
 fraud which vitiates the judgment; he 
 must still join in the writ. Tittlemore v. 
 Wainwright, 16 Vt. 173. 
 
 But a joint action of audita querela 
 cannot be maintained by a principal de- 
 fendant and a trustee, to vacate the judg- 
 ments rendered against them respectively 
 in a suit brought by way of the trustee 
 process, when their grounds of complaint 
 are wholly different, and the judgments, 
 if vacated, must be vacated' on different 
 grounds. Johnson v. Plimpton, 30 Vt. 
 420. 
 
 If a judgment against several persons 
 be vacated as to one, upon audita qtcerela, 
 it must be vacated as to all. Starbird v. 
 Moore. 21 Vt. 529. 
 
 Against the State. — This writ does not 
 lie against the commonwealth. Com- 
 monwealth V. Berger, 8 Phila. (Pa.) 237. 
 And since it is a regular suit, it cannot, 
 in a.a'^ case, be used against the United 
 States, as in England it could not against 
 the Crown. Avery v. United States, 12 
 Wall. (U. S.) 304. 
 
 3. Beard v. Ketchum, 8 U. C. Q. B. 
 
 523. 
 
 A trustee against whom, upon judg- 
 ment rendered on 'the trustee process, a 
 void execution has issued, may sustain 
 audita querela to set aside such execu- 
 tion. Wilson V. Fleming. 16 Vt. 649. 
 
 Attaching Creditors. — Under the Ver- 
 mont statute, giving to subsequent at- 
 taching creditors a right to prosecute 
 audita querela, only to contest a demand 
 on which a previous demand- is founded, 
 such creditors cannot maintain this writ. 
 
 1004 
 
Judgment. 
 
 AUDITA QUERELA. 
 
 Grounds of Action. , 
 
 The proper plea is "not guilty."^ The particular judgment com- 
 plained of cannot be regarded as an estoppel upon the inquiry, 
 but the whole subject is necessarily open to examination as a 
 mere matter in pais !^ 
 
 5. Judgment and its Incidents. — The judgment in audita querela 
 cannot include affirmative relief to the defendant.^ It is con- 
 clusive only as between parties and privies.* It is the proper 
 subject of an appeal or writ of error.** Costs will follow the judg- 
 ment as an incident.* The writ of audita querela does r\o\.,perse, 
 stay proceedings on the execution during its pendency, nor will it 
 operate as a supersedeas? 
 
 6. What Grounds will Sustain the Action. — Injury, or danger of in- 
 jury, is essential to the maintenance of audita querela; but it lies 
 as well quia timet as for one actually in execution.* The writ 
 may be brought to annul an execution issued irregularly or with- 
 
 Puttenham, 3 Dyer, 297 
 
 Putttrnham v. 
 pi. 25 
 
 Matters not alleged in the declaration 
 as a substantive ground of complaint will 
 be regarded as outside the issue and will 
 not be noticed. Underwood v. Hart, 23 
 Vt. 120; Oakes v. School District, 33 Vt. 
 156. 
 
 Amendment. — A writ of audita querela, 
 improperly called in the declaration an 
 action of tort, may be amended by strik- 
 ing out those words. Stone w. Chamber- 
 lain, 7 Gray (Mass.), 206. 
 
 Where the complaint in an audita 
 querela is traversed, and a verdict found 
 for the complainant, the court cannot 
 render judgment for the defendant non 
 obstante veredicto. In such case, if the 
 complaint is defective, amotion in arrest 
 should be made to test its sufficiency. 
 French v. Steele, 14 Vt. 47q. 
 
 1. Little V. Cook, i Aik. (Vt.) 363; 
 Lovejoy v. Webber, 10 Mass. 103; 
 Brackett v. Winslow, 17 Mass. 159. 
 
 In an action of audita querela a former 
 judgment may be given in evidence un- 
 der a plea of not guilty. Mussey v. 
 White, 4 Eastern Repr. (Vt.) 459. 
 
 It is -no defence to an audita querela 
 that the execution complained of issued 
 by the mistake of the clerk or attorney. 
 Phelps V. Slade, 13 Vt. 195. 
 
 Matters which were proper subjects of 
 inquiry and adjudication for the trial 
 cou.t cannot generally be made available 
 in defence to this writ. Griswold v. Rut- 
 land, 23 Vt. 324. 
 
 If the defendant in the writ claims that 
 the execution complained of, which was 
 prohibited by a statute, wa-s still lawful, 
 as coming within z. proviso to the statute, 
 he must prove the fact affirmatively. 
 Sawyer v. Vilas, Ig Vt. 43. 
 
 2. Paddleford v. Bancroft, 22 Vt. 529. 
 
 As this is a direct proceeding to set 
 aside a judgment, the rule against at- 
 tacking judgments collaterally has no ap- 
 plication here. Hillz/. Warren, 54 Vt. 73. 
 
 3. The defendant in the writ is not an 
 actor in the suit, and no proceedings are 
 to be had in it for his benefit. Either the 
 plaintiff prevails in whole or in part, and 
 recovers judgment to the extent to which 
 he is entitled to it. or there is a judgment 
 for the defendant, and this is the whole 
 scope and effect of the suit. Hence it is 
 improper, on reversing the judgment com- 
 plained of, to make an order to bring for- 
 ward the original action on the docket. 
 Foss V. Witham, 9 Allen (Mass,), 572, 
 
 But in Vermont double costs and in- 
 terest may be allowed, in some cases, to 
 a successful defendant. Perry v. Ward, 
 20 Vt. 92. 
 
 4. Stevens v. Curtiss, 3 Conn. 260. 
 
 5. Fitch V. Scovel, i Root (Conn.), 56;. 
 White V. Clapp, 8 Allen (Mass,), 283; 
 Gordonier v. Billings, 77 Pa. St. 498. 
 
 6. Shrewsbury v. Strong, 10 Vt. 591. 
 The plaintiff will be compelled to give 
 
 security for costs where such- security 
 would be required in an ordinary action. 
 Holmes v. Pemberton, i El. &. El. 369. 
 Double Costs. — In Vermont, by statute, 
 where the court adjudge that a writ of 
 audita querela was brought merely for the 
 purpose of delay, they may award double 
 costs and twelve per cent interest to the 
 defendant in the writ. Perry v. Ward, 18 
 Vt. 120; s. c, 20 Vt. 92. 
 
 7. Nuby V. Jenkins, i Sid. 351; Lang- 
 ston V. Grant, i Salk. 92; Anonymous, 12 
 Mod. 105 ; Emery v. Patton, 9 Phila. (Pa.) 
 125 ; Waddington v. Vredenbergh, 2 
 Johns. Cas. (N. Y.) 227; Huntw. Brooks, 
 18 Johns. (N. Y.) 5. Compare Phelps v. 
 Slade, 13 Vt. 195. 
 
 8. Bryant v. Johnson, 24 Me. 304; 
 
 1005 
 
What Grounds will 
 
 AUDITA QUERELA. 
 
 Sustain the Action 
 
 out authority of law.* Or to supersede an alias execution when 
 satisfaction has been ma,de, wholly or in part, on a prior execu- 
 tion.* Or to enforce a tender or compromise.^ Or to vacate a 
 judgment rendered against a non-resident, on constructive service, 
 in violation of statutory requirements.* Or to set aside a judg- 
 ment irregularly entered after a discontinuance, or entered in con- 
 travention of an agreement for a continuance.^ It will also lie to 
 vacate a judgment rendered against an infant who was not repre- 
 
 Glover v. Chase, i Williams (Vt), 533; 
 Phelps V. Slade, 13 Vt. 195 ; Lothrop v. 
 Bennett, Kirby (Conn.), 187. 
 
 If the matter complained of is simply 
 nugatory and void, the party can have no 
 need of this process. Bryant v. Johnson, 
 24 Me. 304; Dane's Abr. 186, art. i. 
 
 It does not lie to prevent the enforce-' 
 ment of a judgment for nominal dam- 
 ages and costs, made after an arbitration 
 in pais wherein the award did not pur- 
 port to dispose of the pending suit. Mer- 
 ritt V. IVIarshall, 100 Mass. 244. 
 
 1. Irregular Execution. — Where there 
 is a regular judgment, or a regular award 
 of execution, and an execution is after- 
 wards irregularly issued, the remedy is 
 audita querela, not a writ of error. John- 
 son V. Harvey, 4 Mass. 485. 
 
 An execution which misdescribes the 
 judgment as to sums is irregular, and 
 may be set aside in this manner. Wilson 
 V. Fleming, 16 Vt. 649. 
 
 The same is true of an execution issued, 
 by a justice of the peace and made re- 
 turnable in a shorter time than the law 
 allows. Havey v. Niles, 26 Vt 541. 
 
 Wrongful Levy. — The writ of audita 
 querela will also lie to vacate and set 
 aside a levy of execution on land irregu- 
 larly or fraudulently made. Hurlbut v. 
 Mayo, I D. Chip. (Vt.) 387; Hopkins v. 
 Haywood, 34 Vt. 474; s. c, 36 Vt. 318. 
 
 Unruthorized Execution. — An execution 
 issued aijainst the body of the debtor, in 
 a case not allowed by statute, will be set 
 aside on audita querela. Stanley v. 
 McClure, 17 Vt. 25",; Sawyer v. Vilas, 19 
 Vt. 43. 
 
 Where an execution issues against an 
 administrator, after a year and a day 
 from the date of the judgment against the 
 intestate, and without revival by scire fa- 
 cias, the irregularity may be corrected by 
 audita querela. Hicks v. Murphy, Wal- 
 ker (Mich.), 66. 
 
 Where referees make a conditional re- 
 port, and the creditor sues out execution, 
 contrary to the manifest intent of the 
 referees, audita querela will lie. Skil- 
 lings V. Coolidge, 14 Mass. 48. 
 
 An award of execution upon a return 
 of scire feci forever concludes the defend- 
 
 ant from any plea or defence ; but when 
 an execution is awarded upon two re- 
 turns of nihil, the defendant may present 
 his defence by audita querela. Barrow v. 
 Bailey, 5 Florida, 9. 
 
 8. Fairbanks v. Devereaux, 47 Vt. 550; 
 Luddington v. Peck, 2 Conn. 700; McRae 
 V. Davis, 5 Jones Eq. (N. Car.).i4o; Par- 
 ker V. Jones 5 Jones Eq. (N. Car.) 276. 
 
 3. Perry v. Ward, 20 Vt. 92; Keen v. 
 Vaughan, 48 Pa. St. 477. 
 
 But a tender cannot avail the debtor 
 for this purpose unless it is kept good 
 and 'the money brought into court, and 
 the fact that the money is so brought 
 into court must appear affirmatively by 
 the declaration in the audita querela, or it 
 will be open to demurrer. Perry v. Ward, 
 20 Vt. 92. 
 
 4. Where the defendant in an action, a 
 non-resident, had no actual notice of the 
 pendency of the suit, and judgment is 
 rendered against him by default, without 
 any security being given, by bond or 
 recognizance, for tlie repayment of such 
 sum as may be recovered on review, this 
 being made by statute a condition pre- 
 cedent to the issuing of execution, the 
 defendant may have his remedy by audita 
 querela. Folan v. Folan, 59 Me. 566; 
 Dingraan v. Myers, 13 Gray (Mass.), i; 
 Marvin v. Wilkins, i Aik. (Vt.) 107; 
 Alexander v. Abbott, 21 Vt. 476; Whit- 
 ney V. Silver, 2'2 Vt. 634; Eastman v. 
 Waterman, 26 Vt. 494; Harmon v. Mar- 
 tin, 52 Vt. 255. Compare Witherell v. 
 Goss, 26 Vt. 748; Hamilton v. Wilder, 31 
 Vt. 695. 
 
 But not where an attorney (though un 
 authorized) has entered an appearance 
 for him. Spaulding v. Swift, 18 Vt. 214. 
 
 5. Judgment after Discontinuance. — 
 Where a suit has been discontinued, 
 either by agreement of parties or by opera- 
 tion of law in consequence of irregulari- 
 ties, and the plaintiff, without tlie de- 
 fendant's consent, afterwards proceeds 
 and takes judgment by default, the pro- 
 ceedings will be set aside on audita 
 querela. Crawford v. Cheney, 12 Vt. 567; 
 Pike V. Hill, 15 Vt. 183; Paddleford v. 
 Bancroft, 22 Vt. 529 (see the doctrine of 
 this case explained and limited in Aldrich. 
 
 1006 
 
Grounds of Action. 
 
 AUDITA QUERELA. Where Writ will not Lie. 
 
 sented by a guardian;^ and to obtain relief against a judgment in 
 a secondary or collateral action when the original judgment has 
 been barred, reversed, or set aside -^ or to set aside a judgment 
 from which an appeal was wrongfully denied by the inferior court.* 
 It is a>lso a proper method of obtaining relief in consequence of a 
 discharge in bankruptcy subsequent to the judgment* Where 
 the legality of a debtor's imprisonment is affected by matter of 
 discharge occurring after the judgment, it may be tested on 
 audita querela.^ 
 
 7. Cases where the Writ will not Lie. — A party is not entitled to 
 relief by audita querela when he has had a legal opportunity to 
 avail himself of the matters of defence set forth in his complaint, 
 or when the injury of which he complains is attributable to his 
 
 V. Bonett, 33 Vt. 202); Hawley v. Mead, 
 52 Vt. 343 ; Kimball v. Randall, 56 Vt. 
 558. Compare Sisco v. Parkhurst, 23 Vt. 
 
 537- 
 
 The judgment of a justice of the peace 
 cannot be set aside on audita querela be- 
 cause he refused to continue a case for 
 the sickness of a party. Amidon v. 
 Aiken, 28 Vt. 440. 
 
 In an action ex contractu against co- 
 defendants, one defendant and the plain- 
 tiff agreed to a continuance, and the jus- 
 tice accordingly entered a continuance, 
 without going to the place appointed for 
 trial. Held, that neither party could avoid 
 the proceedings by audita querela, Scott 
 V. Larkin, 13 Vt. 112. 
 
 1. Judd V. Downing, Brayt. (Vt.) 27; 
 Starbird v. Moore, 21 Vt. 529. Compare 
 Chase v, Scott, 14 Vt. 77; Barber v. 
 Graves, 18 Vt. 2go. 
 
 Lunatic. — A judgment rendered against 
 an insane person, who had a guardian, 
 but whose guardian was not notified of 
 the siiit, and who has no guardian ap- 
 pointed for him by the court, will be 
 vacated upon audita querela, Lincoln v, 
 Flint, 18 Vt. 247. 
 
 2. Barnes v. Warlich, Yelv. 59 (it lies 
 for bail if the judgment against the prin- 
 cipal is reversed); Wilson v. Watson, Pet. 
 C. C. (U. S.) 269. 
 
 Surety. — If a sheriff recovers judgment 
 against a surety for an escape of a debtor, 
 and the creditor is barred by the statute 
 of limitations of his remedy against the 
 sheriff, the surety may be relieved from 
 the execution by an audita querela. Hall 
 V, Fitch, I Root (Conn.). 151. 
 
 Foreign Judgment. — When a foreign 
 judgment against the defendant has been 
 reversed by the foreign appellate tri- 
 bunal, but in the meantime he has been 
 sued here on that judgment, he may 
 have redress by audita querela. Mer- 
 chants' Ins. Co. V. De Wolf, 33 Pa. St. 45. 
 
 Concurrent Suits. — Where two suits are 
 brought at the same time for the same 
 cause of action, and proceed pari passu 
 to judgment and execution, a satisfaction 
 of either judgment may be shown, upon 
 audita querela, in discharge of the other, 
 Browne v. Joy, g Johns. (N. Y.) 221. 
 
 3. Edwards v. Osgood, 33 Vt. 224; 
 Harrimian v. Swift, 31 Vt. 385. Compare- 
 Bradish v. Redway, 35 Vt. 424. 
 
 But in order to use the writ for this 
 purpose, it is necessary that the party 
 should have fully complied with all the, 
 requirements of the law in regard to the 
 perfecting of his appeal. Finney v. 
 Hill, 13 Vt. 255; Harriman v. Swift, 31: 
 Vt. 385. 
 
 A party appellant against whom an 
 affirmance of the judgment has been ob- 
 tained by the appellee, without notice, 
 and in violation of an agreement to ar- 
 bitrate the matter and not carry up the 
 appeal, will be relieved on aaa'jVa querela, 
 though he does not aver in his complaint 
 that he had a good defence to the original 
 action. Eddy z*. Cochran, i Aik. (Vt.) 359. 
 
 Where the statute takes away the ap- 
 peal from a justice's judgment, audita 
 querela will not lie to set aside an errone- 
 ous judgment in malicious prosecution by 
 reason of the pendency of the alleged 
 malicious action. Perry v. Morse, 57 Vt. 
 
 509. 
 
 4. Petit V. Seaman, 2 Root (Conn.), 
 178; Williams v. Butcher, i Weekly Notes 
 (Pa.), 304; Baker v. Judges, 4 Johns. (N. 
 
 Y.)i9i. 
 
 5. Commonwealth v. Whitney, lo Pick. 
 (Mass.) 439; Comstock v. Grout, 17 Vt. 
 512. But see Gould v. Mathewsoh, 18 
 Vt. 65. 
 
 If a prisoner on execution procure hjs 
 liberation, under an agreement to sur 
 render himself upon certain terms, and 
 he executes such agreement, and is com- 
 mitted again on the execution, he cannot 
 
 1007 
 
Where WritwiU not Lie. AUDITA QUERELA. 
 
 Substitutes for Writ. 
 
 own neglect.^ It will not lie where the matter of the complaint 
 is a proper subject for a writ of error ;* nor for mere irregularities 
 not going to the absolute validity of process or the substantive 
 merits of the controversy ;^ nor upon matters which constitute a, 
 mere equitable defence, such as would not be cognizable at law ;* 
 nor to correct an erroneous taxation of costs or an allowance of 
 greater interest than the law allows.^ The defendant may be 
 estopped to apply for this writ.® 
 
 8. Substitutes for the Writ., — The proceeding by writ of audita 
 querela is now superseded in a majority of the States by the more 
 summary method of application for relief by motion, upon notice 
 to the adverse party. *" And, generally, wherever this form of pro- 
 ceeding would lie at common law, the courts may now grant re- 
 lief on motion.* In England it fell into disuse a century ago, but 
 
 have relief by audita querela. Little v. 
 Newburyport Bank, 14 Mass. 443; Coffin 
 ■V. Ewer, 5 Mete. (Mass.) 228. , 
 
 1. Avery v. United States, 12 Wall. 
 (U. S.) 304; Lovejoy*. Webber, 10 Mass. 
 loi; Barker v. Walsh, 14 Allen (Mass.), 
 175; Faxon v. Baxter, 11 Cush. (Mass.) 
 35; Barrett v. Vaughan, 6 Vt. 243; Gris- 
 wold V. Rutland, 23 Vt, 324. 
 
 On this principle, if an insolvent debtor 
 neglects to plead proceedings in insolven- 
 -cy and his subsequent discharge therein, 
 in defence to a suit pending against him, 
 but allows judgment by default, and is 
 arrested and committed to jail, he has no 
 remedy by audita querela. Faxon v. 
 Baxter, 11 Cush. (Mass.) 35. 
 
 So where the plaintiff, having obtained 
 judgment against the defendant, releases 
 it, and afterwards brings a scire facias, 
 and the sheriff returns scire feci, but the 
 defendant does not appear, and there is 
 judgment upon it, he cannot have an 
 audita querela, for he had time to plead 
 the release upon the return of the scire 
 facias, and having neglected it, the law 
 will not relieve him; and if in truth he 
 was not warned, he has his remedy against 
 the sheriff for a false return. Wicket v. 
 Creamer, i Salk. 264; i Ld. Raym. 439; 
 Day V. Guilford, T. Raym.' 19; Cooke u. 
 Berry, i Wils. g8. See Thatcher v. Gam- 
 mon, 12 Mass. 270. 
 
 2. Weeks v. Lawrence, i Vt. 433; 
 Dodge V. Hubbell, i Vt. 491 ; School Dis- 
 trict V. Rood, I Williams (Vt.), 214; Sut- 
 ton V. Tyrrell, 10 Vt. 87. 
 
 Nor is the rule affected by the fact that 
 the writ of error is taken away by stat- 
 ute. Tuttle V. Burlington, Brayt. (Vt.) 
 27; Dodge V. Hubbell, i Vt. 491; Spear 
 V. Flint, 17 Vt. 497. 
 
 3. Sawyer v. Doane, 19 Vt. 598; Lam- 
 son V. Bradley, 42 Vt. 165. Compare 
 Ball V. Sleeper, 23 Vt. 573. 
 
 4. Schott V. McFarland, i Phila. (Pa.) 
 58; Garfield ». University, 10 Vt. 536. 
 
 Remedy in Equity. — Upon. a demurrer 
 to a writ oiaudita querela it was held, 
 that where an execution has been issued 
 from a court of law, this writ c^innot be 
 sustained to vacate the same, or suspend 
 its operation, on the ground that it has 
 been enjoined by a court of chancery, for 
 the remedy is by application to that court. 
 Porter v. Vaughn, 24 Vt. 211. 
 
 5. Goodrich ZJ. Willard, li Gray (Mass.), 
 380; Edmondson v. King, i Overt. 
 (Teni).)425; Perry z/r Ward, 18 Vt. 120; 
 Clough V. Brown, 38 Vt. 179; Johnson v. 
 Roberts, 3 Eastern Repr. (Vt.) 871. The 
 case last cited criticises and distinguishes 
 Weed V. Nutting, Brayt. (Vt ) 28. 
 
 6. Estoppel. — In an action of trover, the 
 plaintiff, upon default, entered up judg- 
 ment for the alleged value of the property 
 without an inquiry or assessment; execu- 
 tion issued, and the money "was paid by 
 the defendant. Held, that after payment 
 of the money audita querela would not lie 
 to set aside the judgment and execution. 
 Hadlock v. Clement, 12 N. H. 68. 
 
 7. Job V. Walker, 3 Md. 129; Huston 
 ■u. Ditto, 20 Md. 305; Smock v. Dade, 5 
 Rand. (Va.) 639; Longworth v. Screven, 
 2 Hill (S. Car.), 298; Dunlap s'. Clements, 
 18 Ala. 778; Chambers v. Neal,i3 B. Mon. 
 (Ky.)256; Marsh v. Haywood, 6 Humph. 
 (Tenn.)2lo; McMillan v. Baker, 2oKans. 
 50; McDonald v. Falvey, 18 Wis. 571. 
 
 In Daly v. Derringer, i Phila. (Pa.) 
 324. without denying that audita querela 
 might issue in Pennsylvania, the court 
 said: " It is expedient to give relief sum- 
 marily on motion, rather than to put the 
 parties to that writ." 
 
 8. Share v. Becker, 8 Serg. & R. (Pa.) 
 239; Witherow v. Keller, 11 Serg. & R. 
 (Pa.) 274; Baker v. Judges, 4 Johns. (N. 
 Y.)i9i. 
 
 1008 
 
Bemedies. 
 
 A UDITA Q UERELA—A UDITORS. 
 
 Deflnition. 
 
 has been revived in later times, and is now used with more fre- 
 quency.* 
 
 9. Concurrent Remedies. — The proceeding by audita querela, being 
 a common-law remedy, is not taken away or abolished by the mere 
 establishment of a concurrent remedy suitable to the particular 
 case.* And the writ may issue after a refusal of summary relief 
 on motion, and conversely.* 
 
 AUDITORS. (See also Referees.) 
 
 1. Definition. 
 
 2. Appointment and Qualification. 
 
 3. What Cases may be Referred to 
 
 Auditors. 
 
 4. Notice of Meeting. 
 
 5. Action by Majority. 
 
 6. What Matters may be Exam- 
 
 ined. 
 
 7. Witnesses and Evidence. 
 
 8. Adjournments. 
 
 9. Power to allow Amendments. 
 
 10. Estoppel by Acquiescence in Order 
 of Reference. 
 
 1 1 . Report, its Form and Contents. 
 
 12. Exceptions to Report. 
 
 13. Correction and Confirmation of 
 
 Report. 
 
 14. Effect of Report as Evidence. 
 
 15. Impeaching and Setting aside 
 
 Report. 
 
 16. Recommitment. 
 
 17. Compensation of Auditors. 
 
 1. Definition. — In practice, auditors are agents or officers of a 
 court, either of law or equity, appointed to examine and digest 
 accounts for decision, and to prepare materials on which an order, 
 judgment, or decree may be made.* 
 
 defendant is not precluded, either by tlie 
 existence of that remedy or by having 
 unsuccessfully resorted to it, from bring- 
 ing an original bill in equity against the 
 plaintiff, for relief, in a case where a 
 court of law has set aside the writ in a 
 summary proceeding. Williams v. Rob- 
 erts, 8 Hare, 315. 
 
 Advantages of the Writ. — "With regard 
 to this writ, however, there is a peculiarity 
 worthy of notice, which involves an ad- 
 vantage which does not appear to attend 
 on the remedy by motion in lieu of it. 
 In England, an audita querela is a com- 
 mission to the judges to examine the 
 cause, and is in the nature of an action of 
 trespass, and damages are given if the 
 execution be without right. Now, in the 
 case of a motion for relief, it is very clear 
 that the judges would not award damages 
 to the defendant, however they might 
 protect him from the plaintiff's unjust 
 oppression, and it is equally clear that if 
 an issue were directed to try the matter 
 of fact, the jury coul4 not assesi dam- 
 ages, but would be confined to passing 
 upon the fact; but in audita querela, if the 
 issue be to the country, damages may be 
 assessed." Troubat & Haly's Practice 
 (Brightly's Ed.). §1481. 
 
 Authorities for Audita Querela. — Ba- 
 con's Abr. ; Broom & Hadley's Com. 
 (Wait's Ed.); Troubat & Haly's Practice. 
 
 4. Bouvier's Law Diet.; Field v. HoL- 
 
 Vermont and Massachusetts. — The only 
 States where the writ of audita querela is 
 to day used with any frequency are Ver- 
 mont and Massachusetts. For instances 
 of its recent application in those States, 
 see the citations, generally, throughout 
 this article. 
 
 1. England. — " The indulgence now 
 shown by the courts in granting a sum- 
 mary relief upon motion, in cases of such 
 evident oppression, has almost rendered 
 useless the writ of audita querela and 
 driven it quite out of practice. " 3 Blackst. 
 Com. 406. And see remarks of Eyre, 
 C. j., in I Bos. 428. It is spoken of in 
 Sutton V. Bishop, 4 Burr. 2286, as an 
 "old legal remedy, long disused and ex- 
 pensive!" But in Baker v. Ridgway, 2 
 Bing. 47, it is said to be neither an ob- 
 solete nor difficult proceeding; and see 
 "Emery v. Patton, 9 Phila. (Pa.) 125; 
 Williams!'. Roberts, 8 Hare, 315; Nathan 
 V. Giles, 5 Taunt. 558; Lister z/. Mundell, 
 I Bos. & P. 427; Troop V. Ricardo, 33 
 Beav. 122. 
 
 2. Lovejoy v. Webber, lo Mass. loi; 
 Brackett v. Winslow, 17 Mass. 158; 
 Alexanders. Abbott. 21 Vt. 476; Porter z/. 
 Vaughn, 24 Vt. 211; Edwards v. Osgood, 
 33 Vt. 224. Compare Young v. Collet, T. 
 Raym. 89. 
 
 3. Emery v. Patton, 9 Phila. (Pa.) 125. 
 Although audita querela is said to be in 
 
 the nature of an equitable action, yet the 
 
 I C. of L.— 65 
 
 1009 
 
Appointment and Qualification. A UDITORS. Appointment and ftnalifioation. 
 
 2. Appointment and Qualification. — Auditors may be appointed by- 
 courts either of law or equity, and where such appointment can 
 be made without consent of parties, it rests entirely in the discre- 
 tion of the court, whose order is not appealable.^ An auditor 
 appointed by order of court need not have a formal or written 
 notice of his appointment.'-* He should in general be sworn 
 before entering upon the duties of his appointment ;^ but the 
 objection that no oath, was taken will be waived if the parties, 
 with knowledge, appear before hini and proceed wkh the trial.* 
 A person will be debarred from acting as an auditor by the dis- 
 qualification of interest or relationship.''' 
 
 land, 6 Cranch (U. S.) 8; Whitwell v. 
 Willard, i Mete. (Mass.) 2i6; Read v. 
 Barlow, i Aik. (Vt.) 145. 
 
 Public Officers. — There are certain ad- 
 ministrative officers, connected with State 
 and municipal governments, whose prin- 
 cipal duty is to examine and pass upon 
 the accounts of receiving and disbursing 
 officers, and who are therefore called 
 "auditors." But we are riot here con- 
 cerned with the legal relations of these 
 officers. 
 
 Referees, etc. — In many of the States 
 persons invested with powers and duties 
 analogous to those of auditors at common 
 law, and called "referees," "masters," 
 ' ' commissioners, " or ' ' committees, " may 
 be appointed for special purposes, e.g., 
 to hear evidence in chancery proceedings, 
 to take testimony on a rule to open a 
 judgment, to examine witnesses on a 
 libel in divorce, to examine debtors on 
 supplementary proceedings. For the law 
 and practice in relation to these matters, 
 so far as either differs from that pertinent 
 to auditors, the reader is referred to the 
 various appropriate titles of this work, 
 or, if the practice be entirely local, to the 
 statutes of his own State. 
 
 Calling the person named an " auditor" 
 instead of a " referee" will not vitiate 
 the order of reference. Buchan v. Rin- 
 toul, 70 N. Y. I. 
 
 1. Field V. Holland, 6 Cranch (U. S,), 
 8; Pomeroy v. Winship, 12 Mass. 525; 
 Pierce v. Thompson, 6 Pick. (Mass.) 193; 
 Ubsdell V. Root, i Hilt. (N. Y.) 174; Rob- 
 son V. Jones, 33 Tex. 324. See Bac. 
 Abr. Accompt, F. Compare Vanduzer v. 
 McMillan, 37 Ga. 2gg; Dougherty v. 
 Jones, 37 Ga. 348. 
 
 In Rhode Island the supreme court has 
 the same discretion on appeal as the 
 court below in the appointment of au- 
 ditors. Campbell v. Crout, 3 R. I. 60. 
 
 2. Allison V. Bryson, 65 N. C. 44. 
 
 An irregularity in the appointment of 
 an auditor is waived- by the appearance 
 of a party before him and proceeding 
 
 with the reference for several days with- 
 out objection. Quinn -v. Lloyd, 7 Rob. 
 (N. Y.) 157. See Heard v. Russell, 59 
 Ga. 25. 
 
 3. In re Vilmar, 10 Daly (N. Y.), 15. 
 Compare Daggy v. Cronnelly, 20 Ind. 
 474; Benoit v. Brill, 24 Miss. 83. 
 
 It need not appear of record that an 
 auditor was sworn; it will be presumed 
 that he was unless the contrary appears. 
 Putnam v. Button, 8 Vt. 396; Reed v. 
 Talford, 10 Vt. 568; Leyde v. Martin, i6 
 Minn. 38. 
 
 4. Newcomb v. Wood. 97 U. S. 581; 
 Kelsey v. Darrow, 22 Hun (N. Y.), 125; 
 Nason v. Ludington, 8 Daly (N. Y.), 149; 
 Milwaukee Co. v. Ehlers, 45 Wis. 281. 
 Compare Hepburn v. Jones, 4 Colo. 98. 
 
 Special Oath. — Where, at the com- 
 mencement of a hearing before a com- 
 mittee appointed upon a petition in equity 
 to establish lost boundaries, the counsel 
 on both sides were ignorant that a spe- 
 cial oath had been prescribed by statute 
 for such committees, and the counsel for 
 respondents presented the general oath 
 for committees in chancery, and inquired 
 of the opposing counsel whether that was 
 not the proper oath,' to which the latter 
 replied that it was, and it was at once 
 administered by a magistrate present, it 
 was held that after the hearing and a re- 
 port by the committee the respondents 
 were estopped from claiming that the 
 proper oath had not been administered.. 
 Post V. Williams, 33 Conn. 147. 
 
 5. Disqualification. — An account should 
 not be referred to the attorney of one of 
 the parties, as auditor, without the con- 
 sent of the other party, 'and an order 
 granting such reference should be set 
 aside as of course. Eason v. Billups, 65 
 N. Car. 216. 
 
 Where the auditor is an attorney, and 
 accepts a retainer for other business from 
 one of the parties, pending the refer- 
 ence, this fact will of itself avoid his 
 report. Stebbins v. Brown, 65 Barb. (N. 
 Y.) 272. 
 
 1010 
 
When to be Appointed. 
 
 A UDITORS. Meeting— Action by Majority. 
 
 3. What Cases may be Referred to i^uditors. — The cases in which 
 the appointment of an auditor is proper are largely regulated by 
 local statutes ; but the general rule is that an auditor should only 
 be appointed in a case which requires an examination of accounts 
 or an investigation of vouchers.^ 
 
 4. Notice of Meeting. — On a hearing before auditors both parties 
 must have reasonable notice of the time and place of hearing to 
 enable them to come prepared with their evidence.* But appear- 
 ance of parties at the time and place fixed for hearing, without 
 objection, waives any defect in giving notice.^ 
 
 5. Action by Majority. — Where two or more auditors are ap- 
 pointed all must act in the hearing ;* but the parties may consent 
 
 One is disqualified to sit as an auditor 
 in the trial of an action of book account 
 whose wife is first cousin to the wife of 
 one of the parties. Clapp v. Foster, 34 
 Vt. 5S0. 
 
 An alleged disqualification of an au- 
 ditor, by reason of his relations witii one 
 of the parties, is a question for the dis- 
 cretion of the court and not reviewable 
 on appeal., Baird v. Mayor, 74 N. Y. 
 382. 
 
 1. Brewster v. Edgerly, 13 N. H. 275; 
 Brewer v. Hyndman. 18 N. H. 9; Put- 
 nam V. Goodall, 31 N. H. 419; Ford v. 
 Porter. 32 N. H. 376; Cozzens v. Hodges, 
 I R. I. 491; Whitaker v. Desfosse, 7 
 Bosw. (N. Y.) 678; Townshend v. Dun- 
 can, 2 Bland Ch. (Md.) 45; Martin -u. 
 Hall, 26 Mo. 386. 
 
 In California it is held that an ordinary 
 suit at law cannot be sent to a referee 
 against the objection of a party who 
 wishes a trial by jury, and this even 
 though the trial involves the examination 
 of a long account. Grim v. Noi'ris, 19 
 Cal. 140. 
 
 Objection Waived. — The objection that 
 a case is not one which may be referred 
 to an auditor, under the statutes, must be 
 raised before the case is so referred, or 
 at the latest before proceeding with the 
 examination of the case before the au- 
 ditor, and cannot be taken for the first 
 time when the auditor's report is offered 
 in evidence on the trial. Kimball v. 
 Baptist Society, 2 Gray (Mass.), 517. 
 Compare Turner v. Taylor, 2 Daly (N. 
 Y.), 278. 
 
 2. Parsons v. Able, 19 Tex. 447; Strang 
 V. Allen, 44 111. 428; Whiton v. Wiggin, 
 34 N. H. 215.- 
 
 It is no ground of exception to an an- 
 ditor's report that he appointed a time 
 and place for the hearing which were not 
 convenient to the counsel for the party 
 excepting, as the other counsel knew. 
 Cheshire v. Howland, 13 Gray (Mass.), 
 321. 
 
 Reasonable Notice. — A notice to the 
 attorney, sent by letter, mailed three days 
 prior to the time fixed, was held insufficient 
 when it appeared that the attorney could 
 no more than have reached the auditor's 
 office if there had been no delay in the 
 mail or otherwise, and if he had been at 
 home and left at once to attend. Strang 
 V. Allen, 44 111. 428. And see Parsons 
 V. Able, ig Tex. 447. 
 
 Special Notice. — Where the personal 
 attendance of a party is required before 
 the auditor to answer interrogatories, or 
 he is called on to produce books and pa- 
 pers, a special notice of what is required 
 must be served on him a sufficient time 
 before the hearing, or he is not bound to 
 attend. Stetson v. Godfrey. 20 N. H. 
 227; Whiton V. Wiggin, 34 N. H. 215. 
 
 Notice, when unnecessary. — An auditor 
 to whom a report is recommitted for 
 amendment in matter of form need not 
 give notice to or hear the parties. Web- 
 ber V. Orne, 15 Gray (Mass.), 351. 
 
 So where he is appointed to state an 
 account from proofs already in the cause, 
 and where further evidence would be in- 
 admissible. Calvert v. Carter, 18 Md. 73. 
 
 8. Pike V. Stallings, 71 Ga. 860. 
 
 4. Crone z'. Daniels, 20 Conn. 331; The 
 Nineveh, i Low. (U. S.) 400; ToWnsend 
 ■u. Ins. Co., 33 N. Y. Superior Gt. 130. 
 
 It is not necessary that all the auditors 
 should convene either to give notice to 
 the parties or to adjourn. The chairman 
 may give the notice, and if one of the 
 parties does not appear a majority of the 
 auditors may adjourn the hearing. Swin- 
 ton V. Erwin, 8 Vt. 282. 
 
 Where an account is referred to three 
 auditors by name, or a majority of them, 
 it is^ no objection to a report of a ma- 
 jority of them that one of them was not 
 notified to attend. Davis v. Foley, Wal- 
 ker (Mich.), 43. 
 
 Where a report of the majority of ref- 
 erees is recommitted for the specific pur- 
 pose of having them certify that the 
 
 1011 
 
What may be Examined. 
 
 A UDITORS. 
 
 Witnesses and Evidencft. 
 
 that a part act for all,* and the major part of a board of auditors 
 may make a report, provided the report shows that all of them sat 
 in the cause and participated in the deliberations.'-* 
 
 6. What Matters may be Examined. — The investigations of an 
 auditor must be strictly confined to the questions and matters 
 specifically committed, to him by the court, and he has no authority 
 to examine any extraneous matters.^ But he may rightfully con- 
 sider and decide all questions incidental to 6r involved in an 
 examination of the particular issues submitted to him.* And 
 the parties, by agreement, may enlarge the scope and extent of 
 his 'powers.^ 
 
 7. Witnesses and Evidence. — Auditors, as a general rule, have 
 authority to hear testimony, but an auditor cannot receive, in a 
 hearing had before him, any but legal evidence.*" He is bound by 
 a former adjudication, and by any other evidence that would be 
 conclusive upon a court.'^ Depositions, certified as taken to be 
 
 disagreeing referee acted with them in 
 the trial of the case, but refused to sign 
 the report, they niay thus amend their 
 report without the knowledge or pres- 
 ence of their dissenting associate. Brown 
 V. Vassalborough,,50 Me. 64. 
 
 1. Booth z/. Tousey, i Tyler (Vt.), 407; 
 Crone v. Daniels, 20 Conn. 331. 
 
 8. Newel v. Keith, 11 Vt. 214. 
 
 3. Flint V. Hubbard, i Allen (Mass.), 
 252; Merrill v. Russell, 12 N. H. 74; 
 Wright V. Cobleigh, 21 N. H. 339; Aiken 
 V. Smith, 21 Vt. 172; Okie's Appeal, 9 
 W. & S. (Pa.) 156; Gaston's Appeal, i 
 Pittsb. (Pa.) 48; Henderson v. Huey, 45 
 Ala. 275. 
 
 If a referee hears and determines other 
 matters than those embraced in the issue 
 formed in the case referred to him, it is 
 not error-provided the other matters are 
 such as might be brought into the case 
 under any amendment which the trial 
 court could legally have allowed the party 
 to make in his pleadings. Summer v. 
 Brown, 34 Vt. 194. 
 
 foreign Matter — How Eliminated. — If 
 the report includes extraneous matters, it 
 is the proper practice, upon motion, to re- 
 commit the report, with instructions to 
 the auditor to strike out the incompe- 
 tent matter. Bartlett v, Trefethen, 14 
 N. H. 427; Green v. Pickering, 28 N. H. 
 360. 
 
 4. Moulton V. Parker, 35 N. H. 92; 
 Jones V. Stevens, 5 Mete. (Mass.) 373. 
 
 He may consider and determine 
 whether a particular individual' was the 
 authorized agent of one of the parties to 
 purchase on his behalf the goods charged 
 in the account against him. Locke v. 
 Bennett, 7 Cush. (Mass.) 445. 
 
 6. Wright V. Cobleigh, 21 N. H. 339; 
 
 Willi^ V. Willis, 12 Pa. St. 159; Aiken v 
 Smith, 21 Vt. 172. 
 
 But an agreement of parties that the 
 auditor may consider matters not specifi- 
 cally committed to him is revocable be- 
 fore the report is made. Wright v. Cob- 
 leigh, 21 N. H. 339. 
 
 6. Paine v. Ins. Co., 6g Me. 568. Com- 
 pare Sanborn v. Paul, 60 Me. 325. 
 
 A referee cannot receive evidence 
 against the objection and exception of a 
 party, and reserve to himself the question 
 as to its admissibility and the right of 
 retaining or rejecting it at the conclusion 
 of the case. Peck v. Yorks, 47 Barb. 
 (N. Y.) 131. 
 
 An objection to the report of an au- 
 ditor that a portion of the evidence upon 
 which his conclusion is based was inad- 
 missible, should be taken by a motion to 
 recommit the report, and cannot be taken 
 for the first time at the trial as a ground, 
 for rejecting the whole report. Briggs 
 V. Giiman, 127 Mass. 530. 
 
 The admission of evidence of unim- 
 portant facts, not prejudicial to the ob- 
 jecting party, and admissible for another 
 purpose, is no ground for setting aside 
 the auditor's report. Kendrick v. Tar- 
 bell, 27 Vt. 512. 
 
 7. Bound hy Judgment. — An auditor 
 appointed to distribute money cannot 
 inquire into the validity of a judgment 
 rendered in a court, but must take it as 
 conclusive. Matter of Dyott, 2 W. & S. 
 (Pa.) 557; Leeds v. Bender, 6 W. & S. 
 (Pa.) 315- 
 
 But he may disregard a void judg- 
 ment. Brunner's Appeal, 47 Pa. St. 67. 
 
 Former Accounting. — In an action of 
 account the auditors are not bound by 
 any previous accounting between the 
 
 1012 
 
Adjoununents. 
 
 A VDITORS. 
 
 Amendments — Estoppel. 
 
 used in the original cause, may be read in evidence before an 
 auditor if otherwise competent. ^ In some jurisdictions, by special 
 statute, the parties to the action may appear as witnesses before 
 the auditor.* He may open the cause for further hearing.^ 
 
 8. Adjournments. — An auditor may, in his discretion, adjourn the 
 hearing, not only from day to day, but for a longer period upon 
 cause shown ; as to enable a party to apply to the court to open 
 a judgment involved in the reference.* 
 
 9. Power to allow Amendments.— -An auditor has the same power 
 to allow amendments to any pleadings as the court, upon trial, 
 upon the same terms and with like effect.** But he cannot allow 
 an amendment which introduces a new cause of action or sets up 
 a new defence.® 
 
 10. Estoppel by Acquiescence in Order of Reference. — In the action 
 of account, any matter which might have been pleaded in bar 
 before the judgment to account, cannot be pleaded before the 
 
 parties, though it parties had agreed 
 upon particular items, or if rests had 
 been made in a running account, and bal- 
 ances struck, but no final accounting had 
 taken place, the auditors would be con- 
 cluded by the balances as struck by the 
 parties, and bound to carry unpaid bal- 
 ances into the future accounts. Lee v. 
 Abrams, I2 111. iii. 
 
 1. Cross V. Haskins, 13 Vt. 536. Com- 
 pare Pike V. Blake, 8 Vt. 400. 
 
 2. Parties as Witnesses. — Under the 
 statutes of New Hampshire it is in the 
 discretion of an auditor to admit or ex- 
 clude the testimony of parties to the suit, 
 and a report will not be set aside for-such 
 admission or exclusion of testimony, un- 
 less it appear to the court that injustice 
 has been done. Mann v. Locke, 11 N. 
 H. 246; Ramsay v. Bachelder, 18 N. H. 
 135; Hoyt V. French, 24 N. H. 198; Smith 
 ■V. Smith, 27 N. H. 244: Chapin v. School 
 District, 30 N. H. 25; Ford v. Porter, 32 
 N. H. 376; Tuttle V. Robinson, 33 N. H. 
 104; Palmer v. Palmer, 38 N. H. 418. 
 
 If one party be ill and unable to testify 
 at a hearing before an auditor, a refusal 
 by the auditor to permit the other party 
 to testify will be a proper exercise of his 
 discretionary power, and will not be a 
 cause for rejecting or recommitting the 
 report. Lovering v. Levering, 13 N. H. 
 
 si's- 
 
 But an auditor has no authority under 
 the statute to examine as a witness the 
 wife of a party. Randlet v. Herren, 20 
 N. H. 538. 
 
 Nor his bail. Newton v. Higgins, 2 
 Vt. 366; McConnell v. Pike, 3 Vt. 595. 
 
 And although such a statute authorizes 
 an auditor to examine parties on oath, 
 and makes his report evidence on trial 
 before a jury, yet it does not make the 
 
 parties themselves competent witnesses 
 on such trial. Stevens v. Hall, 6 N. H. 
 508; Delaware v, Staunton, 8 Vt. 48; Fas- 
 sett V. Vincent, 8 Vt. 73. , 
 
 If a party before an auditor refuses to 
 answer interrogatories concerning a claim 
 which he seeks to establish, the claim 
 may for that cause be disallowed by the 
 auditor. Stetson u. Godfrey, 20 N. H. 
 227. 
 
 Before an auditor neither party is en- 
 titled to fees as a witness, whether testi- 
 fying in his own favor or for his adver- 
 sary. Whitney v. Pierce, 40 N. H. 114. 
 
 3. Opening for Further Hearing. — An 
 auditor has power and discretion, after 
 the hearing of a case is closed and he has 
 made up his report, but before he has 
 returned it to the court, to open the case 
 and grant a further hearing for newly- 
 discovered evidence or other good cause. 
 Welles V. Harris, 31 Conn. 365; Chase"!/. 
 Spencer, i Wilhams (Vt.), 412; Cooper z;. 
 Stinson, 5 Minn. 201; Marziou v. Pioche, 
 10 Cal. 545. 
 
 4. Matter of Dyott, 2 W. & S. (Pa.) 
 557; Hickokz;. Ridley, 15 Vt. 42. 
 
 5. Oregon Steamship Co. v. Otis, Jg 
 How. Pr. (N. Y.) 254; Mason v. John- 
 son, 13 S. Car. 20; Morse v. Beers, 5.1 
 Vt. 359- 
 
 Where a referee allowed the plaintiff 
 to amend his declaratioil by adding the 
 common counts, held, that the error was 
 harmless, the referee having found that 
 the plaintiff was entitled to recover only 
 upon the original count in the declara- 
 tion. Morse v. Beers, 51 Vt. 359. 
 
 In New Hampshire an auditor has no 
 power to allow amendments. Child v. 
 Eureka Works, 44 N. H. 354. 
 
 .6 Price V. Brown, 98 N. Y. 388; 
 Woodruff V. Hurson, 32 Barb. (N. Y.j 
 
 1013 
 
Estoppel. 
 
 A UDITORS. 
 
 Report— Form and Conteuts> 
 
 auditors.* Again, matters which should have been taken advan- 
 tage of before the auditors carlnot be set up in defence after their 
 report is made.'-* 
 
 11. Report, its Form and Contents. — The auditor's report to the 
 court must be made within the time limited by the order of refer- 
 ence; if afterwards returned, it is a mere volunteer report and has 
 no validity.* The report, like an award of arbitrators, must be 
 certain and definite.* It should state a special account between 
 the parties.^ The auditor should set out the facts in the form of 
 
 557 ; Ford v. Ford, 53 Barb. (N. Y.) 
 
 525- 
 
 , 1. Day V. Lockwood, 24 Conn. 185; 
 Baxter v. Thompson, 26 Vt. 559; Porter 
 V. Wheeler, 37 Vt. 281. 
 
 Thus no matter can be pleaded before 
 the auditors which shows the defendant 
 under no obligation to account; it should 
 have been specially pleaded in bar before 
 the judgment to account. - Baxter v. 
 Thompson, 26 Vt. 559. 
 
 In the action of account the objection 
 that such action was prematurely brought 
 cannot be made after the case is referred. 
 Day V. Lockwood, 24 Conn. 185. 
 
 It is also a settled rule of practice in 
 this action that nothing can be pleaded 
 before the auditors contrary to what has 
 been previously pleaded and found by the 
 verdict. Spear v. Newall, 2 Paine (U. 
 S.), 267. 
 
 Afner a judgment to account, it cannot 
 be insisted in defence that the facts found 
 by the auditor are not sufficient to sup- 
 port the action of account. Porter v. 
 Wheeler, 37 Vt. 281. 
 
 Tender. — A tender made before the 
 commencement of the action need not be 
 pleaded in the trial court, but may be 
 proved and insisted on at the trial before 
 the auditor, and if the money is paid to 
 the auditor, and sent by him to the court 
 with his report, it is sufficient. Wood- 
 cock V. Clark, 18 Vt. 333. 
 
 Non-joinder of Parties. — In an action 
 on book account the non-joinder, as de- 
 fendant, of one of the contracting parties 
 is not waived by the omission to plead it 
 in abatement before the judgment to ac- 
 count, but may be taken advantage of at 
 the hearing before the auditor, and if the 
 fact of such non-joinder is found by the 
 auditor, judgment will be rendered upon 
 the report in favor of the defendant. 
 Smith V. Watson, 14 Vt. 332; Bailey v. 
 Hodges, ig Vt. 618; Hagar v. Stone, 20 
 Vt. 106; Benton v. Chamberlain, 23 Vt. 
 711. 
 
 3. The Statute of Limitations cannot 
 be insisted upon by way of objection to 
 a report of auditors, if not insisted upon 
 
 at the time of the audit. Newell v. 
 Keith, II Vt. 214; Graves v. Weeks, 19 
 Vt. 178. 
 
 The erroneous joinder of counts in 
 book debt and assumpsit is cured by the 
 report of the auditor and its acceptance. 
 Phelps V. Hurd, 31 Conn. 444. 
 
 After the report of auditors it is too 
 late to file pleas and form an issue for a 
 jury. Closson v. Means, 40 Me. 337. 
 
 3. De Long!/. Stahl, 13 Kan. 558; Rob- 
 inson V. O'Conner, 12 Neb. 405. Com- 
 pare Deitrichs v. Railroad, 13 Neb. 43. 
 
 When no time is fixed an auditor's re- 
 port may be filed at any time before trial. 
 Green v. Frank, 63 Ga. 78. 
 
 4. Report must be Certain. — A report 
 of auditors that the defendant should pay 
 a sum to the plaintiff, without finding 
 how much he owed, is bad. Thomas v. 
 Alsop, 2 Root (Conn.), 12. 
 
 So of a report that the defendant had 
 fully accounted; they ought to find that 
 he was nothing in arrear, Spencer v. 
 Usher, 2 Day (Conn.), 116. 
 
 But a report that the plaintiff has no 
 legal demand " at present" is not bad for 
 uncertainty. Couscher v. Tulam, 4 Mass. 
 442. 
 
 Auditors may report in the alternative, 
 leaving the court to render judgment as 
 it may judge the law to be. May v. Cor- 
 lew, 4 Vt. 12! 
 
 5. Bartlett v. Trefethen, 14 N. H.427; 
 Thomas v. Alsop, 2 Root (Conn.), 12; 
 Finney v. Harbeson, 4Yeates (Pa.), 5I4; 
 Tutton V. Adams, 45 Pa. St. 67; Hill v. 
 Hogaboom, 13 Vt. 141. 
 
 Where the auditor inquired, in the 
 presence of the defendant, whether it was 
 necessary to report copies of the accounts 
 of the parties, and the plaintiff's counsel 
 replied that it was not, under the stat- 
 utes, and the defendant said nothing, this 
 was held no waiver on the part of the 
 defendant of his right to have the copies 
 returned with the report. Flower Brook 
 Mfg. Co. V. Buck, 16 Vt. 290. 
 
 Specification of Items. — The auditor's 
 report should show the particular items 
 allowed and disallowed. Macks v. Brush, 
 
 1014 
 
Seport — Form and Contents. 
 
 A UDITORS. 
 
 Exceptions, 
 
 a special verdict, specifically stating his conclusions of law and of 
 fact, but not detailing the evidence.* It is not within his province 
 to award concerning costs.** He may report a balance in favor of 
 the defendant.' ^The jurisdiction of the auditor is determined 
 upon the delivery of his report, and he cannot thereafter file a 
 new or supplemental report, sustaining, contradicting, or correct- 
 ing his former report.* 
 
 12. Exceptions to Report. — Exceptions to the auditor's report 
 must be taken before the auditor and certified by him to the 
 court, and cannot be presented for the first time after the report 
 is accepted and filed.** General exceptions are not sufficient ; a 
 
 5 Vt. 7q; Croker v. Goodnow, 42 Vt. 682; 
 Whitehead o. Perie, 15 Tex. 7. Compare 
 Bent V. Manning, 10 Vt. 225. 
 
 The auditor is not required to specify 
 his reasons for allowing or disallowing 
 each particular item of the account, but 
 if he refuses to do so upon being thereto 
 requested, and this is shown in the ex- 
 ceptions, it tends to show unfairness and 
 deserves consideration. Macks w. Brush, 
 5 Vt. 70. 
 
 The report, in showing the items al- 
 lowed and disallowed, is sufficient if it 
 refers to the account. Wilson v. Wilson, 
 2 South. (N. J.) 791. 
 
 1. Evidence not to be set out. — Skinner 
 V. Conant, 2 Vt. 453; Fry v. Slyfield, 3 
 Vt. 246; Munroe v. Hine, 3'Vt, 389; Shaw 
 ■V. Shaw. 6 Vt. 69; Strong w. McConnell, 
 5 Vt. 338; Goodrich v. Drew, 10 Vt. 137; 
 Hitt V. Slocum, 37 Vt. 524; Stevens v. 
 Thompson, 17 N. H. 103; Newell v. Ches- 
 ley, 122 Mass. 522; Allison v. Bryson, 
 65 N. Car. 44; Vaughan v. Smith, 69 
 Ala 92. 
 
 It is the duty of the auditor to find all 
 the facts which are necessary to found a 
 judgment upon, and he should not leave 
 it for the trial court to investigate the 
 evidence and deduce inferences of fact 
 therefrom, or draw its own conclusions as' 
 to what is proved. Walsh v. Pierce, 11 
 Vt. 32; Swift V. Raymond, 11 Vt. 317; 
 Stoddard v. Chapin, 15 Vt. 443; Abbott 
 ■V. Camp, 23 Vt. 650. 
 
 Conclusions of Law. — The auditor's re- 
 port must separately and distinctly state 
 his conclusions of law. Harris v. Hey, 
 4 Allant. Repr. (Pa.) 715; McConnell v. 
 Pike, 3 Vt. 595; Thompson v. Arms, 5 
 Vt. 546. 
 
 When the facts which constitute a 
 transaction are stated in detail in a ref- 
 eree's report, his finding as to their effect 
 is a conclusion of law. Hotchkiss v. 
 Mosher, 48 N. Y. 478. 
 
 But such questions as actual fraud and 
 collusion are in general conclusions of 
 fact, not of law, and should be determined 
 
 by the auditor upon the evidence. Edson 
 ■u: Sprout, 33 Vt. 77. 
 
 2. Lyman u. Warren, 12 Mass. 412; 
 Calvert v. Carter, 18 Md. 73; Pitts v. 
 Langsdale, 32 Ind. 218. 
 
 3. Dickerson v. Whittlesay, 2 Root 
 (Conn.), 121. 
 
 4. Voorhis v. Voorhis, 50 Barb. (N. Y.) 
 119; Benson's Appeal, 48 Pa. St. 159; 
 Conklin -v. Morton, 40 Ind. 76. 
 
 But it seems that the auditor may make 
 an additional statement explanatory of 
 his views, after having signed and filed 
 his report. May v. Corlew, 4 Vt. I2. 
 
 Amendment of Beport. — After the re- 
 port is filed the auditor cannot amend it 
 without order of court. Ann v. Coleman, 
 II Kan. 460. 
 
 But it is competent for the auditor, by 
 permission of the court, to amend his 
 report in matter of form so as to make 
 its meaning plain, after it has been filed 
 in court, and this without a formal order 
 of recommitment for that purpose. Fales 
 V. Hemenway, 64 Me. 373. 
 
 Or to show that the auditor had been 
 duly sworn. Quick v. Cox, 38 Iowa, 568. 
 
 5. Chappedelaine 'o. Dechenaux, 4 
 Cranch (U. S.), 308; Thompson v. Arms, 
 5 Vt. 546; Curtiss v. Greenbanks, 24 Vt. 
 536; Crousillat v. McCall, 5 Binn. (Pa.) 
 433; Moore v. Hunter, 4 Yeates (Pa.), 
 358; Wilson V. Wilson, 2 South. (N. J.) 
 791; Anderson v. Usher, 59 Ga. 567; 
 Kinsey v. Kinsey, 37 Ala. 394; White- 
 head V. Perie, 15 Tex. 7; Davi's v. Foley, 
 Walker (Mich.), 43. Compare Calvert v. 
 Carter, 18 Md. 73; Benoit v. Brill, 24 
 Miss. 83. 
 
 In Maryland, it appears, the auditor's 
 report may be excepted to in the court of 
 appeals, and the whole accounts gone 
 into, whether general or special excep- 
 tions, or none at all, had been taken in 
 the trial court. Ringgold v. Ringgold, 
 I Har. & Gill (Md.), 11. Compare Cal- 
 vert V. Carter, 18 Md. 73. 
 
 Errors on the Face of the Report — An 
 important exception to the rule above 
 
 1015 
 
Correction of Beport. 
 
 A UDJTORS. 
 
 Effect as Evidence. 
 
 party excepting to the report must designate particular!}- the 
 erroneous action excepted to, and refer the court distinctly and 
 clearly to the ground of his exception. * 
 
 13. Correction and Confirmation of Report. — In some jurisdictions 
 the auditor's report is of no effect until sanctioned by the court.** 
 In others, where the report is defective, it may be corrected or 
 amended by the court and made to conform to the evidence.^ 
 
 14. Effect of Report as Evidence. — In some jurisdictions the report 
 of the auditor is final and conclusive as to all questions of fact, 
 unless plain and palpable error be shown;.* In other States.it is 
 merely prima-facie evidence for the jury, and liable to be con- 
 trolled or overthrown by other evidence.^ But the report is 
 
 stated is as follows; If errors appear on 
 the face of the report the exception need 
 not be taken before the auditor, but the 
 report may be corrected or set aside in 
 the trial court, notwithstanding such 
 omission. Murray v. Betsey, 2 Cranch 
 (U. S.), 124; Chappedelaine v. Deche- 
 naux, 4 Cranch (U. S.), 308; Himely v. 
 Rose, 5 Cranch (U. S.), 313; Whipple v, 
 Whipple, 13 R. I. 534. 
 
 Evidence to Sustain Exceptions. — Ex- 
 ceptions to an auditor's report need not 
 set forth any of the evidence, more espe- 
 cially where the auditor himself has re- 
 ported all the evidence, and thus made it 
 part of the record. White z/. Reviere, 57 
 Ga. 386. 
 
 Where, on the trial of exceptions to an 
 auditor's report upon questions of fact, 
 no evidence is introduced to support the 
 exceptions, the report will be sustained; 
 but the rule is otherwise where the ex- 
 ceptions are upon questions of law. 
 Brinson v. Wessolowski, 57 Ga. 142. 
 And see Benoit v. Brill, 24 Miss. 83. 
 
 1. Wood v. Barney, 2 Vt. 369; Newell 
 V. Doty, 33 N. Y. 83; Moyerz/. Railroad, 
 88 N. Y. 351; Scrivener v. Scrivener, i 
 Har. & J: (Md.) 743; Allison v. Bryson, 
 65 N. Car. 44; State v. Foy, 71 N. Car. 
 527; Cincinnati v. Cameron, 33 Ohio St. 
 336. 
 
 It seems that an exception to the find- 
 ing of a referee in general terms, that 
 " the plaintiff excepts to each and every 
 one of the decisions and rulings of the 
 referee against the plaintiff on the trial 
 of this action, severally, separately, and 
 distinctively," amounts to nothing. New- 
 ell V. Doty, 33 N. Y. 83. 
 
 An exception to a report that it is 
 contrary to law is too indefinite. Allison 
 V. Bryson, 65 N. Car. 44. 
 
 Or that it is against the evidence. 
 Scrivener v. Scrivener, i Har. & J. (Md.) 
 
 743- 
 
 2. Dorsey v. Hammond, i Bland Ch. 
 (.Md.) 463. 
 
 101 
 
 3. Davis V. Roberts, i Sm. & Mar. Ch. 
 (Miss.) 543; Bannister v. Patty, 35 Wis. 
 215; Dorr V. Hammond, 7 Colo. 79. 
 
 Where auditors reject certain distinct 
 claims of the defendant, and .report a 
 balance in the plaintiff's favor, and the 
 court decide that such claims ought to be 
 allowed, the plaintiff may remit the 
 amount erroneously rejected and have 
 the report confirmed for the rest. Smith 
 V. Brush, II Conn. 359. 
 
 4. Beport Conclusive. — Ludlam's Es- 
 tate, 13 Pa. St. 188; Whiteside's Appeal, 
 23 Pa. St. 114; Burrough's Appeal, 26 
 Pa. St. 264; White's Appeal, 36 Pa. St. 
 134; Stewart v. Bowen, 49 Pa. St. 245; 
 Brua's Appeal, 55 Pa. St. 294; Clendan- 
 iel's Estate, 12 Phila. (Pa.) 53; Hoxie v. 
 Lincoln, 25 Vt. 206; Bacon v. Vaughn, 
 34 Vt. 73; Mitchell w. Dockray, 63 Me. 
 82; White V. Anderson, 13 La. An. 577; 
 Farley v. Ward, i Tex. 646; Hoyt v. 
 Clark, 8 Mo. App. 566. 
 
 But when error is shown to exist the 
 report is subject to correction by the 
 court. Chew's Appeal, 45 Pa. St. 228. 
 
 If an auditor decides a question of 
 fact, and it appears from his report that 
 there was any testimony before him tend- 
 ing to prove the fact found by him, his 
 decision is conclusive; but if he reports 
 all the evidence on which he based his 
 findings, and that evidence has no ten- 
 dency to prove the fact, his finding may 
 be corrected by the court. Hodges v. 
 Hosford, 17 Vt. 615; Cottrill v. Vandu- 
 zen, 22 Vt. 511. 
 
 5. Beport Prima-facie Evidence — Ly- 
 man V. Warren, 12 Mass. 412; Taunton 
 Iron Co. V. Richmond, 8 Mete. (Mass.) 
 434; Rich V. Jones, 9 Cush. (Mass.) 329; 
 Gould V. Norfolk Lead Co., 9 Cush. 
 (Mass.) 338; Leathe v. Bullard, 8 Gray 
 (Mass.), 545; Phillipps v. Cornell, 133 
 Mass. 546; Bellows v. Woods, 18 N. H. 
 305; Mathes v. Bennett, 21 N. H. 188; 
 Shouter v. Swindles, 37 N. H. 559; 
 Knowlton v. Tilton, 38 N. H. 257; Drew 
 8 
 
Effect of Beport 
 
 A UDITORS. 
 
 as Evidence. 
 
 always subject to an examination of the principles of law upon 
 which the auditor proceeded, and his conclusions of law are not 
 binding on the court. ^ On trial before a jury either party may 
 introduce the report of an auditor previously made in the same 
 cause as evidence of such facts as he may desire to prove by it.'-* 
 In the appellate court the auditor's findings of fact are to be 
 regarded as having the same weight and effect as the verdict of a 
 jury, and will only be reversed on such principles as would warrant 
 the court in setting aside a verdict and granting a new trial. ^ 
 
 V. Claggett, 39 N. H. 431; Lull v. Cass, 
 43 N. H. 62. Compare Harland's Case, 5 
 Rawle (Pa.), 323. 
 
 In Massachusetts it is held that the au- 
 ditor's report \% prima facie evidence, but 
 does not change the burden of proof. 
 Morgan v. Morse, 13 Gray (Mass.), 150; 
 Crafts 11. Crafts, 13 Gray (Mass.), 360. 
 Compare Taunton Iron Co. v. Richmond, 
 8 Mete. (Mass.) 434. 
 
 Where the auditor's report is only 
 prima-facie evidence before the jury, 
 either party may impeach it by evidence 
 tending to show its incorrectness. Ken- 
 dall V. Weaver, i Allen (Mass.), 277; 
 Tourne v. Riviere, i La. An. 380. 
 
 An auditor's report is competent evi- 
 dence of facts stated in it which were 
 objected to before him as inadmissible 
 under the answer, if the answer, after the 
 return of the report and before trial, is 
 amended by leave of court so as to meet 
 the objection. Washington Uns. Co. v. 
 Dawes, 6 Gray (Mass.), 376. 
 
 In a suit for the conversion of chattels 
 the plaintiff is not precluded from putting 
 in evidence of their value by the fact that 
 he offered no evidence on this point be- 
 fore the auditor. Fletcher v. Powers, 
 131 Mass. 333. 
 
 Atiditor may Testify. — The auditor him- 
 self is a. competent witness to establish 
 what matters entered into his decision, in 
 order to determine what questions are 
 concluded by the award, or whether the 
 award is in itself binding on the parties. 
 Evans v. Clapp, 123 Mass. 165; Stone v. 
 Aldrich, 43 N. H. 52. Compare Monk v. 
 Beal, 2 Allen (Mass.), 585. 
 
 The facts found by an auditor and 
 stated in his report may be used as evi- 
 dence for the purpose of attacking his 
 conclusions thereon. Keaton v. Mayo, 
 71 Ga. 649. 
 
 1. Parker ^w. Avery, Kirby (Conn.), 
 353; State V. Worthington, l Root 
 (Conn.), 137; Spalding v. Dunlap, i 
 Root (Conn.), 413; Read 'v. Barlow, i 
 Aik. (Vt.) 145; Fay v. Green, i Aik. (Vt.) 
 71; Wood V. Barney, 2 Vt. 369; Brua's 
 Appeal, 55 Pa. St. 294; Morrill v. Keyes, 
 
 14 Allen (Mass.), 222; Meserve v. An- 
 drews, 104 Mass. 360; Moniteau Bank v. 
 Miller, 73 Mo. 187. 
 
 Hence the court may accept the facts 
 found by the auditor, but derive a differ- 
 ent conclusion from them, and render 
 such judgment as is applicable. Meserve 
 V. Andrews, 104 Mass. 360; Moniteau 
 Bank v. Miller, 73 Mo. 187. 
 
 2. Conner v. New England Co., 40 N. 
 H. 537; Lull V. Cass. 43 N. H. 62. 
 
 But the party so introducing the report 
 as evidence is not thereby estopped to 
 deny is correctness in any other particu- 
 lar nor tprecluded from impeaching it. 
 Conner v. New England Co., 40 N. H. 
 
 537- 
 
 The trial court has authority to require 
 an auditor's report to be read at the trial, 
 although neither party relies on it or de- 
 sires to offer it in evidence. Clark v. 
 Fletcher, i Allen (Mass.), 53; Lull v. 
 Cass, 43 N. H. 62. 
 
 One who asks that his cause may be 
 referred, waives his right to object to 
 the constitutionality of the law making 
 the auditor's report evidence upon a 
 trial. Deverson v. Railroad, 58 N. H. 
 129. 
 
 8. Landis v. Scott, 32 Pa. St. 495; 
 Robb's Appeal, 41 Pa. St. 45; Adleman 
 V. Steel, 13 Phila. (Pa.) 529; Harris's 
 Appeal, 2 Grant (Pa.), 304; Bolton's Ap- 
 peal, 3 Grant (Pa.), 204; Kerr v. Mc- 
 Guire, 28 N. Y. 446; Thompson z/. Wood, 
 I Hilt. (N. Y.)93; Grube v. Schultheiss, 4 
 Daly (N. Y.), 207; Hodges v. Parker, 17 
 Vt. 242; Harrington v. Edson, 24 Vt. 
 555; Perry v. Sullivan Mfg. Co., 6 Rich. 
 (S. Car.) 310; McClenny v. Hubbard, 
 20 Fla. 541 ; Whicher v. Steamboat Ew- 
 ing, 21 Iowa, 240; Winona v. Huff, 11 
 Minn. 119; Botsford v. Sweet, 49 Mich. 
 120; Noonan v. Hood, 49 Cal. 293. 
 
 But where the facts found by an audi- 
 tor are not materially disputed, but his 
 conclusions from them are based wholly 
 upon inferences drawn from those facts, 
 the appellate court will reverse a decree 
 of the court below confirming the audi- 
 tor's report, if in their opinion the con- 
 
 1017 
 
Impeaching and 
 
 A UDITORS. 
 
 Setting Aside Beport. 
 
 15. Impeaching and Setting Aside Report. — The report of the 
 auditor — even where, by statute, it is made final as to the facts — 
 may be impeached for fraud, misconduct, or very evident error.* 
 Thus the report will be set aside where its conclusions of fact are 
 not supported by any evidence, or are opposed to such a great 
 preponderance of testimony as to furnish obvious error.** Or by 
 reason of the misconduct of the auditors, or the informality or 
 irregularity of their proceedings.^ But not generally for alleged 
 error in the inclusion or omission of a disputed item of ac- 
 count.* Nor on the ground of .newly-discovered evidence.* In 
 a remonstrance against a report of auditors it is necessary to state 
 with reasonable certainty a good and sufficient cause for setting 
 aside the award.® 
 
 elusions are not warranted by the facts. 
 Milligan's Appeal, 97 Pa. St. 525. 
 
 1. Stehman's Appeal, 5 Pa. St. 413; 
 Closson V. Means, 40 Me. 337. 
 
 The report of an auditor differs from 
 an award by arbitrators in this, that the 
 former may be set aside by the court, al- 
 though neither fraud, corruption, nor 
 gross misconduct on the part of the audi- 
 tor be proved.' Field v. Holland, 6 
 Cranch (U. S.), 8. 
 
 2. Putnam v. Dutton, 8 Vt. 396; Bick- 
 ing's Appeal, 2 Brewst. (Pa.) 202; 
 Thompson's Appeal, 103 Pa. St. 603. 
 Compare Wood v. Barney, 2 Vt. 369; 
 Parker v. Avery, Kirby (Conn.),353; Col- 
 grove V. Rockwell, 24 Conn. 584. 
 
 Where the party's claim rests upon 
 two grounds, and the auditor reports the 
 facts in regard to each point and decides 
 the cause generally for such party with- 
 out specifying upon which ground he de- 
 cides it, this furnishes no reason for set- 
 ting aside the report, provided it shows 
 that testimony was given before him 
 tending to support his decision upon 
 both grounds. Cahill v. Patterson, 30 
 Vt. 592. 
 
 A report of a referee will not be set 
 aside upon a bare preponderance of evi- 
 dence against some of his findings, when 
 there is material evidence to sustain each 
 one of his findings. Ruth u. Ford, 9 
 Kans. 17. 
 
 An auditor's report is not to be set 
 aside if he comes to the result by infer- 
 ring a fact which he might legitimately 
 infer from the evidence before him. 
 Kent V. Hancock. 13 Vt. 519. 
 
 3. Closson K. Means, 40 Me. 337; Gul- 
 ley V. Macy, ^9 N. Car. 343. See Blodg- 
 ett V. Cummings, 60 N. H. 115. 
 
 If an auditor expresses an opinion 
 upon the facts in the case before his ap- 
 pointment, unknown to the party at the 
 time of his appointment, it is cause for 
 
 setting aside the report; but otherwise 
 of his expressing an opinion upon a 
 question of law arising in the case. Fay 
 V. Green, 2 Aik. (Vt). 386. 
 
 But the mere fact that the i-eport of a 
 referee is different from the conclusion 
 reached by him upon the trial and orally 
 announced, is no ground for setting it 
 aside; until he makes his report the case 
 is with him for decision and he can 
 change his view. Gray v. Fisk, 12 Abb. 
 Pr. N. S. (N. Y.) 213. 
 
 Death of Party — Where the action of 
 book-debt is brought against two deferi- 
 dahts, and one dies after the accounts are 
 submitted to an auditor, he may still pro- 
 ceed to adjust the accounts; and the par- 
 ty's death being suggested on the record 
 in the court where the suit is pending, 
 judgment may be rendered on the report. 
 Newton v. Higgins, '■ Vt. 366. 
 
 4. It is no objection to an auditor's re- 
 port that items of account, existing prior 
 to a settlement between the parties, are 
 allowed by the auditor, provided it is 
 found that those items were not included 
 in the settlement; and whether included 
 or not is a fact for the auditor to find. 
 Newell V. Keith, 11 Vt. 214; and see 
 Wheelock v. Moultons, 13 Vt. 430. 
 
 If a report of auditors allows a specific 
 item which ought to have been rejected, 
 it may, nevertheless, be accepted under 
 a rule that such item be deducted. Sar- 
 geant v. Pettibone, i Aik. (Vt.) 355. 
 
 5. Williams v. Welles, i Root (Conn.),, 
 261. 
 
 6. Maples v. Avery, 6 Conn. 20. 
 
 And very clear and satisfactory proof 
 of the errors of which the party excepting 
 complains is necessary to set aside the 
 report of an auditor; unless the errors ap- 
 pear on the face of the report itself. Steh- 
 man's Appeal, 5 Pa. St. 413. 
 
 In order to show sufficient ground to 
 set aside the reporf of an auditor, whs 
 
 1018 
 
Beoommitment. 
 
 A UDITORS. 
 
 Becommitment. 
 
 16, Recommitment. — When the auditor's report is set aside, in 
 v/hole or in part, for indefiniteness, omissions, errors of calcula- 
 tion, or similar reasons, it may be referred back to him for such 
 further action as justice may require. ^ The obtaining new evi- 
 dence by either party is not necessarily a sufficient cause for the 
 rejection or recommitment of an auditor's report.** When the 
 report is recommitted to the auditor generally, it rests in his 
 discretion whether to require the parties to go over the whole trial 
 anew or not ; but if the justice of the case plainly requires it, he 
 should hear any new evidence.^ 
 
 simply states that the account is disal- 
 lowed, the facts or grounds on which the 
 disallowance proceeded must be stated, 
 or it must appear that the auditor was re- 
 quested to state the facts found by him 
 in reference to the account. Wait v. 
 Johnson, 24 Vt. 112. , 
 
 1. Shearman v. Akens, 4 Pick. (Mass.) 
 283; Leach v. Shepard, 5 Vt. 363; Wood- 
 bridge V. Addison, 6 Vt. 204; Warden v. 
 Johnson, 11 Vt. 455; Mason v. Potter, 
 26 Vt. 722; Bolware v. Bolware, i Litt. 
 (Ky.) 124; Turner v. Houghton, 71 N. Car. 
 370; Lee V. Abrams, 12 111. iii; BaziUe 
 V. UUman, 2 Minn. 134; Mast v. Lock- 
 wood, 59 Wis. 48. Compare Gardiner v. 
 Schwab, 34 Hun (N. Y.), 582. See Hunt- 
 ington V. Rumrill, 3 Day (Conn.), 390. 
 
 Where, by comparing the auditor's re- 
 port with the evidence contained in the 
 record, it appears that the adjustment 
 made by him was not perfectly correct, 
 and there is not evidence enough before 
 the court to make a just decree, the report 
 should be recommitted and the auditor 
 required to make a new adjustment and 
 report the evidence. Bolware v. Bol- 
 ware, I Litt. (Ky.) 124; Mast v. Lock- 
 wood, 59 Wis. 48. 
 
 Extraneous Mattfer. — If the report in- 
 cludes extraneous matters, it is the proper 
 practice, upon motion, to recommit the 
 report with instructions to the auditor to 
 strike out such foreign matter. Bartlett 
 V. Trefethen, 14 N. H. 427; Green v. 
 Pickering. 28 N. H. 360. 
 
 After TTse on Trial. — Where an audi- 
 tor's report has been used as evidence on 
 a trial, another auditor will not be ap- 
 pointed on review until the first appoint- 
 ment has been discharged and the report 
 vacated. Pollard v. Verbeck, 16 N. H . 
 
 .435. 
 
 But it IS not error to recommit a re- 
 port to ah auditor, although it has been 
 accepted and used at a trial, if the ver- 
 dict has been set aside and a new trial 
 granted. Phillips v. Gerry, 75 Me. 277. 
 
 If the re-hearing is ordered for reasons 
 that are personal to the auditor, then an- 
 
 other may be substituted in his place. 
 Mengas's Appeal, 19 Pa. St. 222. 
 
 No Appeal. — No exception lies to the ac- 
 tion of the trial court in recommitting or 
 refusing to recommit the case to the au- 
 ditor for the correctioti of errors or irreg- 
 ularities; the appellate court will not in- 
 terfere with its discretion in this respect. 
 Monk V. Beal, 2 Allen (Mass.), 585; 
 Packard v. Reynolds, 100 Mass. 153; 
 Jewell V. Reddington, 57 Iowa, 92; State 
 V. Magnin, 85 N.Car. 114. Compare %\03a. 
 V. McMahon, 85 N. Car. 296. 
 
 2. Nutter v. De Rochemont, 46 N. H. 
 80. Compare Camac v. Francis, 3 Wash^ 
 (U. S. C. C.) 108. 
 
 Where the report of the auditor is re- 
 ferred back to him he may properly in- 
 clude in it a demand of the creditor not 
 exhibited to him until after the report had 
 been recommitted. Taylor v. Woodward, 
 5 Halst. (N. J.) I. 
 
 3. Leach v. Shepard, 5 Vt. 363; Mason 
 V. Potter, 26 Vt. 722. 
 
 If an action in which an auditor has 
 made a report is referred to him again to 
 reconsider and revise his report upon evi- 
 dence or arguments to be offered by the 
 defendant, he may hear evidence and ar- 
 guments on the plaintiff's part, in respect 
 to errors in his first report. Shearman v. 
 Ak^ns, 4 Pick. (Mass.) 283. 
 
 But where a case is referred back to 
 an auditor merely to take additional testi- 
 mony pertinent to a particular issue, he 
 will exceed his powers in hearing evi- 
 dence on other points. O'Neil v. Ca- 
 pelle, 62 Mo. 202. 
 
 And where the report is recommitted for 
 an error of Calculation, the auditor has no 
 power to re-hear the parties, and his re- 
 port on such re-hearing will be set aside 
 and the original report confirmed. Stew- 
 art V. Bowen, 49 Pa. St. 245; Donnelly's 
 Estate. 3 Phila. (Pa.) 18. 
 
 Auditor's Discretion. — In cases where it 
 lies in the discretion of the auditor to re- 
 examine the merits of the controversy on 
 a recommitment of his report, his refusal 
 to do so will noi furnish ground for re- 
 
 1019 
 
■Compensation. A UDITORS—A UTHENTICA TION. 
 
 Definition. 
 
 17. Compensation of Auditors. — In some jurisdictions the courts 
 possess the power to fix the compensation of auditors, and the 
 amount rests in their discretion.^ In others it maybe fixed by 
 agreement of parties.* 
 
 AUTHENTICATION. — 1. Definition. — To authenticate a writing is 
 to perform certain acts upon it for the purpose of rendering it 
 admissible' in evidence as being what it purports to be without 
 proof by witnesses that it is such.^ 
 
 2. Public Documents or Records. — Authentication of writings is 
 confined for the most part to copies of public documents or records 
 which, in the nature of things, cannot be removed from their 
 place of deposit for use in evidence. _ Such documents or records, 
 when relevant, are ordinarily proved by authenticated copies.* 
 
 3. Modes of Authentication at Common Law. — Office or Certified Copy. 
 — At common law there were two modes of authenticating a copy 
 of a public record or document:- one by certificate of the officer 
 having the custody of such record or document.' 
 
 -jecting the second report. Leach v. Shep- 
 ard, 5 Vt. 363. 
 
 1. Porter's Appeal, 30 Pa. St. 496; Fitz- 
 ^immon's Appeal, 4 Pa. St. 248. 
 
 The compensation of auditors is regu- 
 lated not only by the labor which they 
 bestow; but also by the amount of money 
 to be distributed, and it is not to be di- 
 minished on the ground that the counsel 
 did not argue the case before the auditor, 
 and desired merely a pro forma decree. 
 Lombard v. Bayard, i Wall. Jr. (U. S.) 
 196. 
 
 Where a statute' provides for a referee's 
 fee for each day occupied in a hearing, a 
 fee is not chargeable for days on which 
 there was an adjournment only. In re 
 Clark, 36 Hun (N. Y.), 301, 
 
 If an auditor is entitled to his fees be- 
 fore filing his report, the party interested 
 in it cannot compel the adverse party to 
 advance the money by making affidavit of 
 his own inability to pay the fees. King 
 •V. Whiton, 15 Wis. 690. 
 
 2. Brown w. Windmuller, 36 N. Y. Su- 
 perior Ct. 76; Bradley's Estate, 11 Phila. 
 (Pa.) 87. 
 
 Where the statute provides that the 
 parties to a reference may agree as to the 
 referee's compensation, he may recover 
 from both jointly the amount agreed on. 
 Malone v. Roby, 62 Wis. 459. 
 
 Authorities on Auditors. — Troubat & 
 Haly's Practice (Pa.), Fish's Ed. ii. 181, 
 A seq.; Bacon's Abr. tit. Accompt, F. ; 
 Hoffman on Referees, Ed. 1875; Morse 
 on Arbitration and Award, Ed. 1872. 
 
 8. Bouvier Law Diet. ; Burrill Law 
 Diet. 
 
 4. I Greenl. Evid. §§ 501, 502. 
 
 S. I Greenl. Ev. §§ 503, 507. 
 
 According to the American doctrine, 
 any officer .having the custody of public 
 documents or records, may certify copies 
 of the same. Lane v. Bommelmann, 17 
 111. 95; Simmons v. Spratt, 20 Fla. 495; 
 Floyd V. Ricks, 14 Ark. 286. In England 
 sufih officer cannot certify unless required 
 by law to furnish copies on request. 
 Black V. Lord Braybrook, 2 Stark. 7. 
 In State ti. Cake, 24 N. J. L. 516, it 
 was held he could not certify unless ex- 
 pressly authorized by law to give copies. 
 See, accord, Strother v. Christy, 2 Mo. 
 iig; Rowland v. McGee, 4 Bibbs. (Ky.) 
 
 439- 
 
 A certified copy proves itself. The 
 court requires no proof of the signature 
 of the certifying officer. Snyder v. Bow- 
 man, 4 Watts (Pa.), 132; Bryan v. Wear, 
 4 Mo. 106; Prather v. Johnson, 3 Harr. 
 & J. (Md.) 487; Floyd v. Ricks, 14 Ark. 
 286; Bixby V, Carskaddon, 55 Iowa, 533; 
 Barrett v. Godshaw, 12 Bush (Ky.), 592. 
 (This applies only to copies of domestic 
 documents or records. As to certifica- 
 tion of copies of foreign documents, see 
 u. 2, p. 1021.) 
 
 But the signature may be proved false. 
 Prather v. Johnson, 3 Harr. & J. (Md.) 
 487; Bryan v. Wear, 4 Mo. io5. 
 
 The keeper of records can only certify 
 copies of documents properly on record. 
 Hatchett v. Conner, 30 Tex. 104. 
 
 The records must be public. Hallo- 
 well, etc., Bank v. Hamlin, 14 Mass. 178. 
 
 A deputy of the legal custodian may 
 certify in his principal's name. Grant v. 
 Levan, 4 Pa. St. 393; Hague w. Porter, 
 45 111. 318; Greasons v. Davies, g Iowa, 
 
 1020 
 
At Common Law. 
 
 A UTHENTICA TION. 
 
 Foreign Becords. 
 
 Exemplification. — The other is by exemplification, that is, by 
 affixing the great seal of state to the copy.^ 
 
 4. Foreign Records. — Copies of foreign documents and records 
 including foreign statutes may be fully authenticated by exempli- 
 fication under the great seal.* 
 
 Office copies are probably also admissible on proof of the hand- 
 writing of the certifying officer, and that he is official custodian.^ 
 
 2ig; Triplett v. Gill, 7 J. J. Marsh. (Ky.) 
 433- 
 
 But not in his own. Snyder v. Brown, 
 4 Watts (Pa.). 132. But see Moore v. 
 Farrow, 3 A. K. ftjarsh. (Ky.) 41. And 
 see p. 1023 (note). Attestation. 
 
 Court Records. — A copy of a court rec- 
 ord, certified by the clerk under the seal 
 of the court, is universally held to be suf- 
 ficiently authenticated for admission in 
 evidence in other courts within the same 
 State. Commonwealth v, Phillips, 11 
 Pick. (Mass.) 28; De Sobry v. De Laistre, 
 2 Har. & J. (Md.) 191, 218. 
 
 It has been held that the seal of the 
 court is not necessary. Chamberlin v. 
 Ball, 15 Gray (Mass.), 352; Rowland v. 
 McGee, 4 Bibb. (Ky.) 439. Contra, see 
 Lansing w. Russell, 3 Barb. Ch. (N. Y.) 
 
 325- ' 
 
 1. Henthorn v. Doe, i Blackf. (Ind.) 
 157; State T/. Carr, 5 N. H. 367; United 
 States V. Amedy, il Wheat. 392; United 
 States V. Johns, 4 Dall. 412; Lee v. 
 Getty, 26 111. 76; Barton w. Murrain, 27 
 Mo. 235. 
 
 Exemplification is not usual except to 
 authenticate copies of foreign records. 
 Copies of domestic records are usually 
 certified. 
 
 2. Griswold v. Pitcairn,-2 Conn. 85; 
 Black V. Lord Braybrook, 2 Stark. 7; 
 Gunn Tj. Peakes, 30 N. W. Rep. 466. 
 
 A court will take judicial notice of the 
 great seals of all governments recognized 
 by its own government. Hence such a 
 seal of itself sufficiently authenticates 
 copies of foreign records or laws. Hen- 
 thorn V. Doe, I Blackf. (Ind.) 157; State 
 V. Carr, 5 N. H. 367; United States v. 
 Amedy, 11 Wheat. 392; United States v. 
 Johns, 4 Dall. 412; Black v. Lord Bray- 
 brook, 2 Stark. 7. 
 
 It is said that the bare seal, without any 
 certificate, is sufficient authentication. 
 Griswold w. Pitcairn, 2 Conn. 85. ^ But 
 see Wilson v. Walker, 3 Stew. (Ala.) 211. 
 But the seal must be affixed to the copy 
 itself, and not to a certificate to the copy. 
 Black V. Lord Braybrook, 2 Stark. 7. 
 
 Where a foreign government is not 
 recognized by the government to which 
 the court belongs, its seal must be proved. 
 United States v. Palmer, 3 Wheat. 610; 
 
 The Estrella, 4 Wheat. 298; United 
 States V. Hutchings, i Bald. (U. S. C. Ct.) 
 616. 
 
 Where an island, belonging to a foreign 
 government, was in a state of revolution, 
 it was held that an exemplification could 
 be made under the private seal of its 
 governor. Hadfield v. Jameson, 2 Munf. 
 (Va.) 53. This decision seems of doubt- 
 ful authority. 
 
 3. Las Caygas v. Larionda's Syndics, 
 4 Mart. (La.) 283; Mauri v. Hefferman, 
 13 Johns. (N. Y.) 58; Packard v. Hill, 7 
 Cow. (N. Y.) 434; Buttrick v. Allen, 8 
 Mass. 273; Capling v. Herman, 17 Mich. 
 
 524. In Petermans v. Laws, 6 Leigh. 
 (Va.) 523, it was said that a foreign record 
 could not be proven by an ofiice copy. 
 See also Silver Lake Bank v. Hardin, i 
 Wright (Ohio), 430. 
 
 It is admitted that a certificate purport- 
 ing to be signed by the custodian of the 
 record is not sufficient to authenticate 
 the copy. Such certificate must itself be 
 authenticated. Church v. Hubbart, 2 
 Cranch. 187, 238; Catlett v. Pacific Ins. 
 Co., I Paine (U. S. C. Ct.), 594. A certi- 
 ficate by a U. S. minister under his official 
 seal will not authenticate such certificate. 
 Stein V. Bowman, 13 Pet. 209. 
 
 In the case of foreign judicial records 
 the seal of the court must be attached if 
 there is any. Cavan v. Stewart, i Stark. 
 
 525. But such seal will not be judicially 
 noticed, and must therefore be proved in 
 order to authenticate the copy. Delafield 
 V. Hand, 3 Johns. (N. Y.) 310. 
 
 It seems that both the seal of court 
 and the clerk's signature must be proved. ' 
 Pickard v. Bailey, 26 N. H. 152; Gard- 
 ner V. Columbian Ins. Co., 7 Johns. (N. 
 Y.) 511; Packard v. Hill, 7 Cow. (N. Y.) 
 434; Thompson v. Mason, 4 Brad. (111.) 
 452; Capling V. Herman, 17 Mich. 524. 
 But see Delafield v. Hand, 3 Johns. (N. 
 Y.) 310, which seems to hold that proof 
 of the seal is enough. 
 
 Where the copy is not sealed, it is au- 
 thenticated by proof that there was no 
 seal, and that the clerk's signature is 
 genuine. Packard v. Hill, 7 Cow. (N. 
 Y.) 434. 
 
 A court of admiralty being a court of 
 the law of nations, its seal will be every- 
 
 1031 
 
Book of Foreign Laws. 
 
 A UTHENTICA TION. 
 
 Judicial Becords. 
 
 5. Book of Foreign Laws. — A book of foreign laws purporting to 
 be printed by printers proved to be the printers authorized by the 
 government to print its laws is sufificiently authenticated as a copy 
 of such laws.^ 
 
 6. Judicial Records of Other States, — Acts of Congress.— The au- 
 thentication of copies of the layv^s and judicial records of one State 
 for admission in evidence in any other has been regulated by act 
 of Congress passed May 26, 1790.® 
 
 where judicially noticed, and hence, of it- 
 self, sufficiently authenticates copies of 
 the records of such court, without proof of 
 the seal or the clerk's signature. Gar- 
 dere v. Columbian Ins. Co., 7 Johns. (N. 
 Y.) 511; Lincoln «/. Battelle, 6 Wend.(N. 
 Y.) 484; Yeaton v. Fry, 5 Cranch. 335, 
 343; Thompson v. Stewart, 3 Conn. 171; 
 Green v. Waller, 2 Ld. Raym. 893. Con- 
 tra, Catlett V. Pacific Ins. Co., i Paine 
 (U. S. C. Ct.), 594- 
 
 1. A book purporting to be an edition 
 of the French code, and to be printed at 
 the royal printing-office, was held admis- 
 sible to prove the laws of France, a wit- 
 ness (the French vice-consul) having tes- 
 tified that the said royal printing-office 
 was the establishment authorized by the 
 government to print its laws. Lacon v. 
 Higgins, 3 Stark. 178. A printed volume 
 of the laws of a British province, of an 
 edition proved to have received the sanc- 
 tion of the executive and judicial officers 
 of the province, is admissible in evidence 
 to prove such laws in a State court. Owen 
 V. Boyle, 15 Me. 147. The edition must 
 be proved to have been authorized or 
 recognized by authority. The certificate 
 of an American consul to this effect under 
 his seal of office is not sufficient. Church 
 V. Hubbart, 2 Cranch, 187, 236. 
 
 A book purporting to be an edition of 
 the statutes of a sister State, and to have 
 been printed by authority, is admissible 
 without further authentication to prove 
 such laws. Mullen v. Morris, 2 Pa. St. 
 85; Greasons v. Davis, g Iowa, 2ig; Bed- 
 dis V. James, 6 Binn. (Pa.) 321 ; Kean v. 
 Rice, 12 S. & R. (Pa.) 203; Allen v. Wat- 
 son, 2 Hill (S. Car.),3i9; Young v. Bank 
 of Alexapdria, 4 Cranch, 384; Raynham 
 V. Canton, 3 Pick. (Mass.) 293. Contra, 
 Packard v. Hill, 2 Wend. (N. Y.) 411; 
 Comparet v. Jernegan, 5 Blackf. (Ind.) 
 
 375- 
 
 So a book purporting to be a copy of 
 private laws published by authority is ad- 
 missible to prove such laws. Beddis v. 
 James, 6 Binn. (Pa.) 321; Kean v. Rice, 
 12 S. & R. 203; Allen v. Watson, 2 Hill 
 (S. Car.). 319; Young ». Bank of Alexan- 
 dria, 4 Cranch. 384; Raynham i'. Can- 
 ton, 3 Pick. (Mass.) 293. 
 
 In most States there are statutes mak- 
 ing books of statutes of other States pur- 
 porting to be printed by authority, evi- 
 dence of such statutes, i Greenl. Ev. 
 (13th Ed.) § 489, ". 3. 
 
 2. This act, as subsequently amended, 
 provides that "the acts of the Legislat- 
 ure of any State or Territory, or of any 
 country subject to the jurisdiction of the 
 United States, shall be authenticated by 
 having the seals of such State, Territory, 
 or country affixed thereto. The records 
 and judicial proceedings of the courts of 
 any State or Territory, or of any such 
 country, shall be admitted in any other 
 court within the United States by the 
 attestation of the clerk and the seal 
 of the court annexed if there be a seal, 
 together with a certificate of the judge, 
 chief justice, or presiding magistrate, 
 that the said attestation is in due form, 
 and the said records and judicial proceed- 
 ings so authenticated shall have such 
 faith and credit giyen to them in every 
 court within the United States as they 
 have by law or usage in the courts of the 
 State from which they are taken." U. S. 
 R. S. 1878, tit. 13, ch. 17, § 905. 
 
 Other Proof Not Excluded.— This act 
 does not abrogate common-law proof of 
 foreign records. Goodwyn v. Goodwyn, 
 25 Ga. 203; Karr v. Jackson, 28 Mo. 316. 
 The States may pass laws for the au- 
 thentication of foreign records not incon- 
 sistent with the act of Congress. Ord- 
 way V. Conroe, 4 Wis. 45. 
 
 Federal and State Courts. — The Federal 
 and State governments are not foreign 
 to each other, and hence the act of Con- 
 gress does not apply to the authentica- 
 tion of copies of records of the courts of 
 the one in the courts of the other. Ben- 
 nett V. Bennett, Deady (U. S. C. Ct.), 
 299; TurnbuU v. Payson, 95 U. S. 418; 
 Mewster v. Spalding, 6 McL. (U. S. C. 
 Ct.) 24; Adams v. Way, 33 Conn. 419. 
 Contra, Grant v. Levan, 4 Pa. St. 393. 
 
 Certification by the clerk under seal of 
 the court is all that is necessary. Mew- 
 ster V. Spalding, 6 McL. (U. S. C. Ct.) 
 24; Bennett v. Bennett, Deady (U. S. C. 
 Ct.), 299; Turnbull w. Payson, 95 U. S. 
 418. 
 
 1033 
 
Judicial Becords. 
 
 A UTHENTICA TION. 
 
 Acts of Congress. 
 
 7. Non-Judicial Records, — Act of Congress. — The authentication 
 of copies of non-judicial records for admission in evidence in 
 
 The Federal courts are of course not 
 foreign to each other. Mason's Admrs. 
 V. Lavvrason, i Cranch (U. S. C. Ct.), 
 190. 
 
 Justices' Judgments. — The act does not 
 apply to the authentication of judgments 
 or proceedings of justices of the peace of 
 other States. Blackwell v. Glass, 43 Arlc. ' 
 209; Lawrence v. Gaultney, I Cheeves 
 (S. Car.), 7; Gay v. Lloyd, i Greene (la.), 
 78; Robinson v. Prescott, 4 N. H. 450; 
 Mahurin v. Bickford, 6 N.H. 567. Unless 
 the justice's court be a court of record. 
 Kissell V. Edwards, 5 Day (Conn.), 363; 
 Scott V. Cleveland, 3 T. B. Mon. (Ky.) 
 62. 
 
 Confederate States. — The records of ju- 
 dicial proceedings of a court of one of 
 the Confederate States may, since the 
 close of the war, be authenticated under 
 the act of Congress by the clerk and 
 judge of the court where they are pre- 
 served. Steere v. Tenney, 50 N. H. 461. 
 
 Attestation. — The attestation must con- 
 form to the laws of the State where the 
 record is copied. Simons v. Cook, 29 
 Iowa, 324. It must, in general, be made 
 by the clerk of the court before which 
 the proceedings took place. Kirkland v. 
 Smith, 2 Mart. (La. R.) N. S. 497, 498; 
 Thomas v. Tanner, 6 T. B. Mon. (Ky.) 52, 
 53, 54. But where the records have been 
 transferred into another court, the clerk 
 of the latter must attest. Danals v. Wat- 
 son, 36 Iowa, 116; Kirkland v. Smith, 2 
 Mart. (La. R.) N. S. 497, 498; Thomas 
 V. Tanner, 5 T. B. Mon. (Ky.) 52, 53, 54. 
 
 The clerk must himself sign his name 
 to the attestation. An attestation ap- 
 pearing on its face to have been signed 
 in the name of the clerk, by a deputy, is 
 defective, and the judge's certificate that 
 the attestation is in due form does not 
 cure the defect. Morris v. Patchin, 24 
 N. Y. 394. Contra, Young v. Glinzer, i 
 Greene (Iowa), 196. 
 
 The Judge's Certificate. — The certificate 
 must slate that the attestation is in due 
 form. Ordway v. Conroe, 4 Wis. 45; 
 Wilburn's Admr. v. Hall, 16 Mo. 426; 
 Shown V. Barr, 11 Ired. L. (N. Car.) 296. 
 
 The certificate must state that the per- 
 son attesting as clerk was such at the 
 date of his attestation. Johnson v. 
 Howe's Admr., 2 Stew. (Ala.) 27. 
 
 The certificate that the attestation is in 
 due form, is conclusive, and where the at- 
 testation does not on its face show that 
 the transcript is of the entire record the 
 certificate Cures this defect. Lee zj.Gause, 
 1 Ired. L. (N. Car.) 440; Ferguson v. 
 
 Harwood, 7 Cranch. 408; Coffee v. Nee- 
 ly, 2 Heisk. (Tenn.) 304. The certificate 
 as to due attestation cannot be contra- 
 dicted by evidence. Ferguson u. Har- 
 wood, 7 Cranch. 408, 412. 
 
 The certificate must show that the 
 
 judge is the sole, or chief, or presiding 
 
 judge. Morris v. Patchin, 24 N. Y. 394; 
 
 Pratt V. King, i Oreg. 49; Stephenson v. 
 
 ■ Bannister, 3 Bibb. (Ky.) 369. 
 
 In Central Bank v. Veasey, 14 Ark. 
 671, it was held that a certificate by a 
 judge not stated to be the sole, or chief, 
 or presiding judge, was sufficient, when it 
 did not appear from the record that 
 there was more than one judge. Accord, 
 see Keyes v. Mooney, 9 Pac. R. (Oreg.) 
 400. Aliter, where the record shows that 
 there were more judges than one. Van 
 Storch V. Griffin, 71 Pa. St. 240. 
 
 Where there is no chief or presiding 
 jndge, a certificate signed by all the judges 
 is valid. Arnold v. Frazier, 5 Strobh. (S. 
 Car.) 33. 
 
 Where the chancellors preside in turn, 
 a certificate signed " I. J. J., one of the 
 chancellors of the court of said State, 
 and in turn presiding chaneellor for G. 
 district," purports to be by the chancel- 
 lor presiding in the district at the time of 
 the certificate, and is sufficient. Taylor v. 
 Kilgore, 33 Ala. 214. 
 
 A certificate by a judge designating 
 himself " first justice, etc.," is insuflScient 
 without proof that by the laws of the 
 State the first or oldest justice was chief 
 or presiding justice. Hudson v. Daily, 
 13 Ala. 722. 
 
 The certificate must show that the 
 judge certifying is judge of the court 
 from whose records the transcript is 
 taken. Brown v. Johnson, 42 Ala. 208; 
 Elliott V. McClelland, 17 Ala. 206; Geron 
 V. Felder, 15 Ala. 304; Randall v. Burtis, 
 57 Tex. 362. Thus, where the record is 
 of a circuit court for a given county, and 
 thfe certificate is signed by the judge as 
 presiding judge of the circuit court for a 
 given district, but it 40SS not appear 
 whether the district includes the given 
 county, the certificate is insufficient. El- 
 liott V. McClelland, 17 Ala. 206. Aliter, 
 where it appears that the district includes 
 the county. Geron v. Felder, 15 Ala. 304. 
 
 Copies of the records of a court where 
 the offices of judge and clerk are held by 
 the same person may be authenticated 
 under the act of Congress. State of Ohio 
 V. Hinchman, 27 Pa. St. 479; Sally v 
 Gunter, 13 Rich. L. (S. Car.) 72. 
 
 But such person must attest as clerk 
 
 1033 
 
Justice of the Peace. 
 
 A UTHENTICA TION. 
 
 Private Documents.. 
 
 courts of other States has also been provided for by act of Con- 
 gress.* 
 
 8. Justice of the Peace, — A justice of the peace may, at common 
 law, certify copies of documents and proceedings on file in his of- 
 fice.* 
 
 9. Private Documents. — Deeds. — By the laws of most States an 
 acknowledgment, properly certified, sufficiently authenticates a 
 deed.* 
 
 Notarial Protest — The seal of the notary sufficiently authenti- 
 cates a notarial protest."^ 
 
 and certify as judge in conformity to the 
 provisions of the act. Melius v. Hous- 
 ton, 41 Miss. 5g; Spencer v. Langdon, 
 21 111. ig2; Stewart v. Swazey, 23 Miss. 
 502; Low V. Burrows, 12 Cal. 181. The 
 certificate or attestation must show that 
 the ofBces of judge and clerk are held by 
 one person. Low v. Burrows, 12 Cal. 
 ]8i; Stewart v. Swazey, 23 Miss. 502; 
 Spencer v. Langdon, 21 111. 192. 
 
 Seal, — Where there is a seal of court it 
 must be affixed. Allen v. Thaxter, i 
 Blackf. (Ind.) 399, It must be affixed to 
 the copy of the record, not to the judge's 
 certificate. Turner v. Waddington, 3 
 Wash. (U. S. C. Ct.) 126. 
 
 If the court have no seal, this should 
 appear from the attestation or certificate. 
 Alston V. Taylor, i Hayw.' (N. Car.) 395. 
 note — ; Craig v. Brown, i Pet. (U. S. 
 C. Ct.) 352, 353. The private seal of the 
 clerk is sufficient where there is no seal 
 of the court. Strode v. Churchill, 2 Litt. 
 (Ky.) 75- 
 
 1. U.S. R. S. 1878, tit. 13, ch. 17, §906. 
 
 2. Tillotson v. Warner,3 Gray (Mass.), 
 574; I Greenl. Ev. § 501. Contra, Magee 
 V. Scott, 32 Pa. St. 539. There are gen- 
 erally statutes allowing justices to certify 
 such copies. McDermott v. Barnum, 19 
 Mo. 204; Steel v. Pope, 6 Blackf. (Ind.) 
 176. 
 
 As to the authentication of copies of 
 foreign judgments of justices, in Dragoo 
 V. Graham, 9 Ind. 212, it was said that 
 " the certificate of the justice to the tran- 
 script (of a foreign justice's judgment) 
 and of the clerk (of the Court of Common 
 Pleas) to the official character of such jus- 
 tice may perhaps in the absence of a sta- 
 tutory requirement be sufficient to au- 
 thenticate the judgment." 
 
 A certificate of a clerk of court as to 
 the capacity of the justice of the peace, 
 will not authenticate a copy of a foreign 
 judgment of a justice of the peace, certi- 
 fied by the justice, unless it be proved 
 that the clerk was authorized by law to 
 certify the capacity of justices. Trader 
 V. McKee, ,2 111. 558. But where the 
 clerk is so authorized, his certificate of 
 
 capacity sufficiently authenticates it. 
 Kuhn V. Miller's Admrs., I Wright (Ohio), 
 127; Belton V. Fisher, 44 111. 32. 
 
 A copy of a foreign justice's judg- 
 ment, certified by the justice rendering 
 it, and having custody of the papers, 
 supported by a sworn deposition of 
 the justice that he was justice of the 
 peace and rendered the judgment in 
 question, is not sufficiently authenticated. 
 Silver Lake Bank v. Hardin, i Wright 
 (Ohio), 430. 
 
 The authentication of copies of docu- 
 ments and proceedings on file in justice 
 courts, either domestic or foreign, is gen- 
 erally regulated by statute, i Greenl. 
 Evi § 501.' 
 
 Where a State law makes a copy of a 
 foreign justice's judgment, certified by 
 the justice rendering it, legal evidence 
 when accompanied by a certificate of the 
 county clerk to the justice's capacity, a 
 certificate of capacity by the clerk -of 
 Common Pleas for the county does not 
 sufficiently authenticate a copy of a for- 
 eign justice's judgment without proof 
 that the clerk of Common Pleas is or cor- 
 responds to the county clerk. Gay v. 
 Lloyd, I Greene (Iowa), 78. 
 
 Under the Iowa statute admitting co- 
 pies of a foreign justice's judgments cer- 
 tified by the justice rendering tham, co- 
 pies certified by the successor in office of 
 such justice are admissible. Railroad 
 Bank v, Evans, 32 Iowa, 202. 
 
 Foreign justices' judgments are prov- 
 able under § 371, Kansas Code. If the 
 justice has no clerk he may himself attest 
 as such and certify as justice. Case v. 
 Huey, 26 Kan. 553. 
 
 3. See title Acknowledgments. See 
 also Stimson Am. Stat. Law, § 1572. 
 
 Foreign acknowledgments generally 
 require for their authentication a certifi- 
 cate of magistracy authenticating the sig- 
 nature and capacity of the notary or 
 other officer certifying the acltnowledg- 
 ment. Stimson Am. Stat. Law, § 1583. 
 
 4. Ross V. Bedell. 5 Duer (N. Y.), 462; 
 Nicholls V. Webb. 8 Wheat. 333; Towns- 
 ley V. Sumrall, 2 Pet. 179; Chanoine v. 
 
 1024 
 
Definition. 
 
 A UTHORITY. 
 
 How Conferred. 
 
 AUTHORITY. (See also Agency.) 
 
 Definition. 
 
 How Conferred. 
 
 Determination of Agent's Au- 
 thority. 
 
 Revocation. 
 
 Determination by Operation of 
 Law. 
 
 6. Express Authority. 
 
 7. Implied Authority. 
 
 8. Ctistom or Usage. 
 Substitution. 
 Sudden Emergency. 
 Actual Authority . 
 Declaration of Alleged Agent as to 
 
 his Authority. 
 Special Authority. 
 
 9- 
 10. 
 
 13 
 
 14. General Authority. 
 
 15. Implied Authority of Particular 
 
 Classes of Agents. 
 
 16. Implied Authority in Particular 
 
 Agencies. 
 
 Agent to Sell. 
 
 Agent to Collect. 
 
 Agent to Buy. 
 
 Agent to Borrow Money. 
 
 Agent to Loan Money. 
 
 Agent to Sue. 
 
 Agent to Manage Real Prop- 
 erty. 
 
 17. Construction. 
 
 18. Atnbiguity in Instruction. 
 
 19. Public Agents. 
 
 1. Definition. — In the law of agency, authority is the power con- 
 ferred upon the agent by the principal to act for him or represent 
 him.^ 
 
 2. How Conferred. — In general, there are no formal requisites to 
 the delegation of an authority.* 
 
 Authority may be delegated by a written instrument or by 
 parol.^ 
 
 Fowler, 3 Wend. (l!^. Y.) 173; Bank v. 
 Pursley. 3 T. B. Mon. (Ky.)238; Bryden 
 V. Taylor, 2 Harr. & J. (Md.)399; Spegail 
 V. Perkins, 2 Root (Conn.). 274. 
 
 But it seems that it is only in the cases 
 of notices of protest that a notarial seal 
 proves itself. In other cases it must be 
 proven. Haggit w. Ineff, 5 Dg G. M. & 
 G. gio; In re Earl's Trust, 4 K. & J. 300. 
 But see Cole v. Sherard, 11 Exch. 482. 
 
 1. Evans Agency (Ewell's Ed.), 35. 
 The word " authority " is used to denote 
 
 existence of a power, to act for or repre- 
 sent another; also the nature or extent 
 of such power. It is sometimes used to 
 denote the instrument or arrangement 
 coriferring or giving rise to the power. 
 
 2. Story Agency (gth Ed.), §§ 46 and 
 47; Evans Agency (Ewell's Ed.), ibetseq. 
 
 Authority to execute a sealed instru- 
 ment must be delegated by an instrument 
 under seal. Story Agency (gth Ed.), § 
 48; Evans Agency (Ewell's Ed.), p. I7- 
 
 Under the English statute of frauds an 
 authority to create any estate or interest 
 in lands other than a leasehold interest 
 for less than three years must be by in- 
 strument in writing. Story Agency (gth 
 Ed.), § 50. n. 5. 
 
 But where the statute requires an in- 
 strument to be in writing to bind the 
 party he may nevertheless appoint an 
 agent to sign for him by parol. Story 
 Agency (gth Ed.), § 50; Coles v. Tre- 
 
 cothick, g Ves. 250; 2 Kent Comm. pp. 
 613, 614; Newton v. Bronson, 13 N. Y. 
 587. 
 
 At one time it was held that authority 
 of an agent of a corporation must be 
 under the corporate seal. Story Agency 
 (gth Ed.), § 52; Evans Agency (Ewell's 
 Ed.), 18 et seq. 
 
 But this rufe has been changed, and 
 now it is held that corporate agents may 
 be appointed in the same manner as 
 any other agents. Story Agency, § 52; 
 Smith V. Birmingham Gas Co., i Ad. & 
 E. 526; Osborn v. Bank of United States, 
 9 Wheat. (U. S.) 738 ; Franklin v. Globe 
 Mut. Life Ins. Co., 52 Mo. 461; Warren 
 V. Ocean Ins. Co., 15 Me. 409; Olcott v. 
 Tioga R. Co., 27 N. Y. 546; Dent v. 
 North American S. S. Co., 49 N. Y. 3go. 
 
 An authority to sign an unsealed writ- 
 ing need not be in writing. Story 
 Agency, § 50; Riley v. Minor, 2g Mo. 43g; 
 Lawrence v. Taylor, 5 Hill (N. Y.), 107; 
 McWhorter v. McMahan, 10 Paige (N. Y.), 
 386; Worrall v. Munn, 5 N. Y. 229; New- 
 ton V. Bronson, 13 N. Y. 587. 
 
 3. Story Agency (gth Ed.), § 47; 
 Evans- Agency (Ewell's Ed.), p. 16; Kent 
 Comm. p. 612; Rann v. Hughes, 7 T. R. 
 350; Howe Machine Co. v. Clark, 15 
 Kan. 4g2. 
 
 "Parol" includes verbal declarations, 
 acts, and implications. Story Agency (gth 
 Ed.), § 47. 
 
 I C. of L.— 66 
 
 1025 
 
Determination and Rsvooatipn A UTHORITY. 
 
 of Agent's Authority. 
 
 In whichever way delegated, the authority will be limited to 
 that expressly conferred, and such implied authority as is neces- 
 sarily, or Ordinarily incident thereto.^ 
 
 3. Determination of Agent's Authority.— An agent's authority may 
 be determined by agreement of the parties, by revocation, or by 
 operation of law.** 
 
 4. Revocation. — The authority of an agent may be revoked un- 
 less it is coupled with an interest.* 
 
 5. Determination by Operation of Law. — The authority is deter- 
 mined by operation of law in case of the death of the principal,* 
 
 An agency may exist even without any 
 verbal agreement or arrangement. It 
 may be implied from the conduct or rela- 
 tion of the parties. Commercial Bank 
 of Buffalo V. Warren, 15 N. Y. 577; 
 Sweetser v. French, 2 Cush. (Mass.) 309; 
 Bank of Ky. v. Brooking, 2 Litt. (Ky.) 41 ; 
 Gulick V. Grover, 33 N. J. L. 463; Far- 
 mers', etc., Bank v. Butchers', etc.. Bank, 
 16 N. Y. 125, 145; Kiley v. Forsee, 57 
 Mo. 390; Kelsey J). National Bank, 69 
 Pa. St. 426 ; Weaver v. Ogletree, 39 Ga. 
 586. 
 
 1. Evans Agency (Ewell's Ed.), book 2, 
 ch. 2 (especially p. 120); Story Agency 
 (gth Ed.), §§ 58, 60, 76 et seq.; Martin v. 
 Farnsworth, 49 N. Y. 555; Cougar v. 
 Galena, etc., R. Co., 17 Wis. 477; Hollo- 
 way V. Stephens, 2 Th. & C. (N. Y.) 562; 
 Stoddart's Case, 4 Ct. of CI. 511; Fletcher 
 V, Evans, 140 Mass. 241; Banes v. Han- 
 nibal, 71 Mo. 449. See infra, p. 1028, n. 2. 
 
 2. Evans Agency (Ewell's Ed.), 76. 
 
 3. Evans Agency (Ewell's Ed.), p. 83; 
 Story Agency (9th Ed.), § 477. 
 
 An authority is ' ' coupled with interest " 
 when the existence or continuance of the 
 authority is of advantage to the person 
 upon whom such authority is conferred. 
 An authority coupled with an interest 
 is irrevocable only when a contract not 
 to revoke, founded on a valuable consid- 
 eration, can be implied from the circum- 
 stances, or was expressly entered into. 
 Smart v. Sanders, 5 C. B. 895; De Comas 
 V. Prost, 3 Moo. P. C. N. S. 158. See 
 Viser v. Bertraod, 16 Ark. 296. 
 
 A power of sale given to a factor to 
 secure advances is an authority coupled 
 with an interest, but it is revocable unless 
 given for a valuable consideration, as in 
 consideration of advances to be made. 
 Smart *. Sanders, 5 C. B. 895; and De 
 Comas V. Prost, 3 Moo. P. C. N. S. 158. 
 
 A power of attorney to confer judg- 
 ment is not revocable. Kindig v. March, 
 15 Ind. 248. 
 
 The special rights which certain classes 
 of agents possess by reason of the very 
 existence of the agency, such as a factor's 
 
 or auctioneer's right of lien, do not con- 
 stitute "an interest." But an authority 
 to sell and apply the proceeds in payment 
 of a debt due the agent is an authority 
 coupled with an interest* Gaussen v. 
 Morton, 10 B. & C. 731. See Kindig v. 
 March, 15 Ind. 248; Drinkwater v. Good- 
 win, Cowp. 251. 
 
 A power of attorney given to secure a 
 previously existing debt is said to be ir- 
 revocable. Gilbert v. Holmes, 64 111. 
 548, 559; Walsh V. Whitcomb, 2 Esp. 565. 
 An authority to sell on commision is 
 not an authority coupled with an interest. 
 Walker v. Denison, 86 111. 142. See also 
 Gilbert ■v. Holmes, 64 111. 549; Bonney 
 V. Smith, 17 111. 531; Chambers v. Seay, 
 73 Ala. 372; Blackstone v. Buttermore, 
 53 Pa. St. 266; Coffin u. Landis, 46 Pa. 
 St. 426. 
 
 The fact that an authority is expressed 
 to be irrevocable will not make it so 
 when not "coupled with an interest." 
 Chambers v. Seay, 73 Ala. 372; McGregor 
 V. Gardner, 14 Iowa, 326; Blackstone v. 
 Buttermore, 53 Pa. St. 266; Walker v. 
 Denison, 86 111. 142'. 
 
 In order to make the authority irrevo- 
 cable, the consideration must be given 
 for the'agreement not to revoke. It must 
 be independent of the compensation for 
 the services to be performed. Blackstone 
 V. Buttermore, 53 Pa. St. 266. 
 
 4. Evans Agency (Swell's Ed.), p. 88; 
 Story Agency (gth Ed.), §§ 349, 488; 
 Clayton v. Merrett, 52 Miss. 353; Gait 
 V. Galloway, 4 Pet. (U. S.) 332; Gale v. 
 Tappan, 12 N. H. 14^; Farrow v. Wil- 
 son, L. R. 4 C. P. 744; Davis z;. Windsor 
 Savi Bank, 46 Vt. 728 ; Travers v. Crane, 
 15 Cal. 12; Rigs V. Cage, 2 Humph. 
 (Tenn.) 350; Lewis v. Kerr, 17 Iowa, 73; 
 Saltmarsh v. Smith, 32 Ala. 404; Mar- 
 lett V. Jackman, 3 Allen (Mass.), 287; 
 Johnson v. Wilcox, 25 Ind. 182. Compare 
 Bank of New York v. Vanderhorst, 32 
 N. Y. 553; Cassidy v. McKenzie, 4 W. & 
 S. (Pa.) 282; Dicic V. Page, 17 Mo. 234; 
 Ish V. Crane, 8 Ohio St. 520. 
 Authorities^ although coupled with aa 
 
 1036 
 
Determination by Law. 
 
 A UTHORITY. 
 
 Express Authority. 
 
 or by liis bankruptcy,^ or by the insanity of the principal.* 
 6. Express Authority. — Express authority is such authority as is 
 conferred upon the agent in express terms.* 
 
 Third persons having notice of the extent of the authority ex- 
 pressly conferred are not justified in assuming powers in the' 
 agent in excess of such authority.* 
 
 interest such as would make them ir- 
 revocable by the act of the donor, are 
 determined by his death. This is because 
 an authority, being merely a power to 
 represent a principal and act in his name 
 and stead when the principal dies, and 
 thus becomes incapable of acting, the 
 power to act for him necessarily deter- 
 mines. Hunt V. Rousmanier's Admrs., 
 8 Wheat. 174; Houghtaling v. Marvin, 7 
 Barb. (N. Y.) 412; McGriff v. Porter, 5 
 Fla. 373. 
 
 But where the authority relates to the 
 disposition of property, and the authority 
 is coupled with an estate or special 
 property in such property, the death of 
 the donor of the authority will not deter- 
 mine the authority. Knapp v. Alvord, 
 10 Paige (N. Y.), 205; Hunt v. Rous- 
 manier's Admrs., 8 Wheat. (U. S.) 174; 
 McGriff V. Porter, 5 Fla. 373; Frink v. 
 Roe, II Pac. R. (Cal.) 820; Bonney v. 
 Smith, 17 111. 531; Gilbert v. Holmes, 64 
 111. 54g; Burr v. Schroeder, 32 Cal. 609; 
 Tharp v. Brenneman, 41 Iowa, 251. 
 
 In this class of cases the estate which 
 the agent possesses enables him to act in 
 his own name, and hence the technical 
 reason why the death of the principal 
 should operate to determine the agency 
 does not exist. Hunt v. Rousmanier's 
 Admrs., 8 Wheat. (U. S.) 174; McGriff 
 V. Porter, 5 Fla. 373; Knapp v. Alvord, 
 10 Paige (N. Y.), 205. 
 
 In the case of Knapp v. Alvord the 
 transaction appears to have been a pledge 
 to secuire a debt with a power of sale. It 
 is difiicult to see how the lien gave the 
 agent power to transfer title by his own 
 act. The title never having been divested 
 from the donor of the power was in him, 
 and it is hard to see how it could be 
 transferred except by his act. If so, the 
 existence of the pledge did not obviate 
 the technical difficulties above adverted 
 to in the way of a sale of the property 
 after the death of the donor of the power. 
 
 The following cases illustrate the dis- 
 tinction between powers of attorney 
 determinable by tlie principal's death, 
 and those not thus determinable: 
 
 Moore v. Hall, 48 Mich. 143. Here a 
 note was indorsed to an agent to collect 
 so as to pass title to him, and it was held 
 that his authority to collect was not de- 
 termined by the death of his principal. 
 
 But it was held otherwise where the 
 agent was merely given possession of the 
 notes in' order to collect them. Darr v. 
 Darr, 59 Iowa, 81. 
 
 The distinction between powers irrev- 
 ocable by the act of the principal and 
 those irrevocable by death is often over 
 looked. See Chambers v. Seay, 73 Ala. 
 377; Walker v. Dennison, 85 111. 142. 
 
 1. Evans Agency (Ewell's Ed.), p. 88; 
 Story Agency (gth Ed.), § 349; Minett v. 
 Forrester, 4 Taunt. 541; Drinkwater v. 
 Goodwin, Cowp. 251; Parker v. Smith, 
 16 East, 382; Ex parte Snowball; In re 
 Douglas, L. R. 7 Ch. 534. 
 
 2. Story Agency (gth Ed.), § 481. 
 
 As a general rule the insanity of the 
 principal operates per se to determine or 
 suspend the agency. Matthiessen, etc., 
 Co. V. McMahon, 38 N. J. L. 536. 
 
 But see dictum of Bramwell, J., in 
 Drew V. Nunn, L. R. 4 Q. B. D. 661, 
 66g, that insanity must amount to demen- 
 tia in order to determine agency. 
 
 There is some authority in favor of 
 the view that the agency is not revoked 
 until the insanity is found by inquisition. 
 2 Kent Comm, 645; Story Agency (gth' 
 Ed.), § 481, n. 3; Wallis v. Manhattan 
 Bank, 2 Hall (N. Y.). 495. 
 
 It has been held that where one who 
 has held out another as his agent subse- 
 quently becomes insane, and, during his 
 insanity, the agent buys goods in his 
 name, of one who has no notice of the 
 insanity, the • principal is liable for the 
 contract price. And it was said that the 
 same principle would apply in case of 
 the determination of the agency by death. 
 Drew V. Nunn, L. R. 4 Q. B. D. 661. 
 See Story Agency (gth Ed.), § 481, n. 3, 
 citing I Bell. Comm. (5th Ed.), § 413, 
 pp. 488-490; Matthiesen, etc., Co. v. 
 McMahon's Admr., 38 N. J. L. 536. 
 
 3. Evans Agency (Ewell's Ed.), loi; 
 Story's Agency (gth Ed.), §§ 45, 58. 
 
 4. Evans Agency (Ewell's Ed.), 62; Sto- 
 ry Agency (gth Ed.), § 72; Clarke Nat. 
 Bank v. Bank of Albion, 52 Barb. (N. 
 Y.) 5g2; People v. Bostwick, 43 Barb. 
 (N. Y.) 9; Eaton v. Delaware, etc., R. 
 Co., 57 N. Y. 382; Craighead v. Peter- 
 son, 72 N. Y. 279; Delafield v. Illinois, 
 26 Wend. (N. Y.) 193; s. c, 2 Hill (N; 
 Y.), 159: Andrews v. Kneeland, 6 Cow. 
 (N. Y.) 354; Stainer v. Tysen, 3 Hill (N. 
 
 1037 
 
Express. 
 
 A UTHORITY. 
 
 Implied. 
 
 7. Implied Authority. — Such authority as an agent possesses as is 
 not express, but is inferred from the surrounding circumstances, 
 such as the acts of the principal, the nature of the business dele- 
 gated, usages, etc., is implied authority.^ 
 
 An agent has impUed authority to do such acts as are necessa- 
 rily involved in the performance of the acts which he is delegated 
 to perform.'-* 
 
 Y.), 279; Munn V. Commission Co,, 15 
 Johns. (N. Y.) 44; s. c, 8 Am. Dec. 2ig; 
 Hovey V. Brown, 59 N. H. 114; Towle 
 V. Leavitt, 23 N. H. 360; s. c, 55 Am. 
 Dec. 195; Hatch v. Taylor, 10 N. H. 
 538; Jeffrey v. Hursh. 49 Mich. 31; Wea- 
 ver V. Bechtel, 53 Mich. 516; Brown v. 
 Johnson, I2 Sm. & M. (Miss.) 398; s. c, 
 51 Am. Dec. 118; Fox v. Fisk, 6 How. 
 (Miss.) 345; Carter I-. Taylor, 6 Sm. & M. 
 (Miss.) 367; Roberts v. Rumley, 58 
 Iowa, 301; Lobdell n. Baker, i Mete. 
 (Mass.) 193; s. c, 35 Am. I3ec. 358; 
 Jackson v. Badger, 26 N. W. Rep. 
 (Minn.) 908; Thomas v. Joslin, 30 Minn. 
 388; Siebold v. Davis, 25 N, W. Repr. 
 (Iowa) 778; Hampton v. Moorhead, 62 
 Iowa, 91; Veeder v. McMurray, 23 N. 
 W. Rep. (Iowa) 285; Rountree v. Da- 
 vidson, 18 N. W. Rep. (Wis.) 518; Camp- 
 bell V. Campbell, 57 Wis. 288; Snow v. 
 Perry, 9 Pick. (Mass.) 539; Wood v. 
 Goodridge, 6 Cush. (Mass.) 123; s. c, 52 
 Am. Dec. 771; Bliss v. Clark, 16 Gray 
 (Mass.), 60; Fisher v. Campbell, 9 Port. 
 (Ala.) 210; Powell v. Henry, 27 Ala. 
 612; Baring v. Pierce, 5 Watts & S. (Pa.) 
 548; s. c, 40 Am. Dec. 534; Johnson v. 
 Wingate, 29 Me. 404; Thompson u. 
 Stewart, 3 Conn. 171; s. c, 8 Am. Dec. 
 168; Equitable Life Ass. Soc. v. Poe, 53 
 Md. 28; Bryden v. Taylor, 2 Harr. & J. 
 (Md.) 396; s. c, 3 Am. Dec. 554; Blane 
 V. Proudfit, 3 Call. (Va.) 207; s. c, 2 
 Am. Dec. 546; Gordon v. Buchanan, 5 
 Yerg. (Tenn.) 71; Huntington v. Wilder, 
 6 Vt. 334, Brown v. Frantum, 6 La. 39; 
 Bank of Hamburg v. Johnson, 3 Rich. 
 (S. Car.) 42; Tomlinson v. Collett, 3 
 Blackf. (Ind.) 436; Walker v, Skipwith, 
 Meig (Tenn.), 502; s. c, 33 Am. Dec. 
 161; Schimmelpennich v. Bayard, i Pet. 
 (U. S.) 264; Parsons v. Armor, 3 Pet. 
 (U. S.) 413; United States v. Williams, i 
 Ware (U. S.), 175; Waters v. Brogdeo, i 
 You. & Jerv. 457. 
 
 If the power of the agent is created by 
 a written instrument, and that known to 
 the party with whom the contract is 
 made, it cannot be enlarged by evidence 
 of usage. Delafield v. Illinois, 26 Wend. 
 (N. Y.) 192. Compare Le Roy v. Beard, 
 8 How. (U. S.)45i. 
 
 1. Siory Agency (9th Ed.). §§ 47, 58, 
 
 97; Evans' Agency (Swell's Ed.), p. loi; 
 Higgins -o. Armstrong, 10 Pac. Repr. 
 (Colo.) 232. 
 
 8. An authority to sell lands for cash 
 confers on the agent the im plied authority 
 to receive the purchase-money. Alexander 
 V. Jones, 64 Iowa, 207; Peck v. Harriott, 
 6 S. & R. (Pa.) 146; s. c, 9 Am. Dec. 
 415; Yerbey v. Grigsby, 9 Leigh. (Va.) 
 387; Johnson v. McGruder, 15 Mo. 365; 
 Hackney v. Jones, 3 Humph. (Tenn.) 
 612; Higgins V. Moore, 6 Bosw. (N. Y.) 
 344; Goodale v. Wheeler, 11 N. H. 424; 
 Hoskins v. Johnson, 5 Sneed (Tenn.), 
 469; Mann v. Robinson, 19 West Va. 
 49; s. c, 42 Am. Rep. 771. 
 
 But authority to , sell land on credit 
 does not imply authority to receive pay- 
 ment for it. Mann v. Robinson, 19 W. 
 Va. 49; s. c, 42 Am. Rep. 771. 
 
 Authority to sell land for cash gives 
 no implied authority to receive merch- 
 andise in payment. Lumpkin z". Wilson, 
 5 Heisk. (Tenn.) 555. See Rhine 'v, 
 Blake, 59 Tex. 240; Reese v. Medlock, 
 27 Tex. 120; Taylor, v. Starkey, 59 N. 
 H. 142. 
 
 An agent to sell lands has authority to 
 execute all instruments necessary to 
 complete the sale. Valentine v. Piper, 
 22 Pick. (Mass.) 85; s. c, 33 Am. Dec. 
 715; Yale V. Eames, 1 Mete. (Mass.) 
 486; People V. Boring, 8 Cal. 407; s. c. 
 68 Am. Dec. 331; Fogarty v. Sawyer, 17 
 Cal. 589; Plummer v. Buck, 16 Neb. 322; 
 Hemstreet v. Burdick, 90 111. 444. 
 
 Bui not to license a purchaser to enter 
 and cut timber prior to a conveyance. 
 Hubbard v. Elmer, 7 Wend. (N. Y.) 446; 
 s. c, 22 Am. Dec. 590. 
 
 Or to sell at auction. Towle v. Leav- 
 itt, 23 N. H. 360; 0. c, 55 Am. Dec. 
 195. 
 
 An authority to give orders as to de- 
 livery is implied from an authority to 
 purchase grain. Owen v. Brockschmidt, 
 54 Mo. 285. 
 
 So an authority to purchase goods 
 where the principal does not furnish the 
 money, implies an authority to purchase 
 on credit. Sprague v. Gillett, 9 Mete. 
 (Mass.) 91; Perrotin v. CucuUu, 6 La. 
 
 587. 
 But not to borrow money for such pur- 
 
 1098 
 
Implied by 
 
 A UTHORITY. 
 
 Custom or Usage. 
 
 An agent has also implied authority to do such acts as are nat- 
 urally or usually incident to the execution of the agency. '^ 
 
 8. Custom or Usage. — An agent possesses by implication such 
 powers as by established usage or custom pertain to the 
 agency.* 
 
 chase. Bank of Indiana v. Bugbee, 3 
 
 Keyes(N. Y.),46i. 
 
 An agent to buy who is furnished with 
 funds has ordinarily no authority to buy 
 on credit. Komorowslii v. Krumdicis, 
 56 Wis. 23; Jaques v. Todd, 3 Wend. 
 (N. Y.) 83; Fraser v. McPherson, 3 De- 
 sau. (S. Car.) 393. Compare Adams v. 
 Boies, 24 Iowa, 96; Paine v. Tillinghast, 
 
 52 Conn. 532. 
 
 An agent to purchase goods has in 
 general no authority to sign his princi- 
 pal's name to a note for the goods. But 
 if a note is necessary to transacting the 
 business he has implied authority to 
 sign. Temple v. Pomroy,4 Gray (Mass.), 
 12S. / 
 
 Authority to investigate the accounts 
 of a corporation implies power to em- 
 ploy expert assistance. Star Line v. 
 Van Vliet, 43 Mich. 364. 
 
 Authority to carry out a contract im- 
 plies no power to change it. Gerrish v. 
 Maher, 70 111. 470; Goodman v. Meixel, 
 
 53 Ind. II. 
 
 An agent furnished with funds has . 
 no implied authority to borrow. Proc- 
 tor V. Tows, 3 N. E. Rep. (111.) 569. 
 
 1. Story Agency (gth Ed.), § 58; 
 Evans Agency (Ewell's Ed.), 107; Benj. 
 on Sales (Bennett's Ed.), § 624; Andrews 
 V. Kneeland, 6 Cow. (N. Y.) 354; Ander- 
 son V. Coonley, 21 Wend. (N. Y.) 279; 
 Peck V. Harriott, 6 S. & R. (Pa ) 146; s. . 
 c, 9 Am. Dec. 415; Benjamin v. Ben- 
 jamin, 15 Conn. 347; s. c, 39 Am. Dec. 
 384; Vanada v. Hopkins, i J. J. Marsh. 
 (Ky.). 285; s.c, 19 Am. Dec. 92; Shack- 
 man V. Little, 87 Ind. 181; Star Line v. 
 Van Vliet, 43 Mich. 364; Earnest v. Stol- 
 ler. 2 McCrary (U. S.). 380; State v. 
 Gates, 67 Mo. 139; Taylor v. Hudgins, 
 42 Tex. 244; Skinner v. Gunn, 9 Port. 
 (Ala.) 305; Gaines v. McKinley, i 
 Ala. 446; Williamson v. Canaday, 3 
 Ired. L. (N. Car.) 349; Woodford v: Mc- 
 Clenahan. 4 Gilm. (111.) 85; Peters v. 
 Farnsworth, 15 Vt. 155; s. c, 40 Am. 
 Dec. 671; Lane v. Dudley. 2 Murph. (N. 
 Car.) 119; s. c. 5 Am. Dec. 523; Ala. 
 Gt. So. R. V. Hill, 76 Ala. 303. 
 
 One epnployed to ship goods may 
 make a reasonable contract limiting car- 
 rier's liability." Illinois Cent. R. Co. -u. 
 Jonte, 13 111. App. 424: Shelton v. Merch. 
 Des. Co., 59 N. Y. 258; Nelson v. Hud. 
 
 son River R. Co., 48 N. Y. 498; Redfield 
 V. Carriers, § 52. 
 
 But authority to procure a cargo in a 
 foreign port does not imply authority to 
 modify or cancel the charter party. Ye 
 Seng Co. V. Corbitt, 7 Sawy. (U. S. C. 
 Ct.) 368; s. c, 9 Fed. Rep. 423. 
 
 Authority to hire includes authority to 
 fix compensation Alabama Great South- 
 ern R. Co. V. Hill, 76 Ala. 303. 
 
 As to the length of the engagement. 
 Williams v. Getty, 31 Pa. St. 461; s. c, 
 72 Am. Dec, 757. Compare Pasco v. 
 Smith, 49 Conn. 576. 
 
 But does not include the power to al- 
 low an em ploy 6 to engage in other bus- 
 iness antagonistic to the interests of the 
 principal. Adams Exp. Co. v. Trego, 35 
 Md. 47. 
 
 Authority to canvass for the sale of a 
 sewing-machine implies no authority to 
 hire a horse and buggy for use in carry- 
 ing on the agency. Howe Machine Co, 
 V. Ashley, 60 Ala. 496. Compare Bent- 
 ley V. Doggett, 51 Wis. 224; s. c, 37 
 Am. Rep. 827. See Sampson v. Singer 
 Sew. Mach. Co., 5 S. Car. 465; Huntley 
 j;. Mathias, go N. Car. lot; s. c, 47 Am. 
 Rep. 516. 
 
 Admissions, Etc. — An agent has im- 
 plied authority to make such admissions 
 and declarations as are necessarily or 
 naturally incident to the business he is 
 entrusted with. American Fur Co. v. 
 United States. 2 Pet. (U. S.) 358; City 
 Bank v. Bateman, 7 Har. & J. (Md.) 
 104; Sharp V. New York, 40 Barb. (N. 
 Y.) 256; Stewartson -v. Watts, 8 Watts 
 (Pa.),392; Chorpenning v. Royce, 58 Pa. 
 St. 476. ' 
 
 2. Story Agency (9th Ed.), § 60; 
 Evans Agency (Ewell's Ed.), 108; Sutton 
 V. Tatham,- 10 Ad. & E. 27; Smith v. 
 Lindo, 5 C. B. N. S. 587. 
 
 One employing a broker to act for him 
 will be bound by the customs of brokers, 
 even though ignorant of them. Pollock 
 V. Stables, 12 Q. B. 765; Bayliffe v. But- 
 terworth, i Exch. 425; Sutton v. Tat- 
 ham. 10 Ad. & El. 27; Northern, etc., R. 
 Co. V. Bastiun, 15 Md. 494; Whitehouse 
 V. Moore, 13 Abb. Pr. (N. Y.) 142 ; Coles 
 V. Bristowe, L. R. 4 Ch. App. 3; Gris- 
 sell V. Bristowe, L. R. 4 C. P. 36. 
 
 But a usage or custom will not be al- 
 lowed to overthrow or change the entire 
 
 1029 
 
Substitution — Emergency. 
 
 A UTHORITY. 
 
 Actual and Ostensible. 
 
 9. Substitution. — An agent has, in general, no implied authority 
 to delegate his authority to another.* 
 
 10. Sudden Emergency. — In case of a sudden emergency, an agent 
 .has implied authority to depart from his instructions in order to 
 take such measures as the, special circumstances may seem to re- 
 quire.® 
 
 11. Actual Authority. — Authorities may also be classified into act- 
 ual and ostensible, actual authority being the authority, express 
 and implied, actually conferred upon the agent ;^ while ostensible 
 authority is such authority as third persons are justified by the 
 acts or representations of the principal in assuming- the agent to 
 possess.* 
 
 On the principle of estoppel, acts of an agent within the scope 
 of his ostensible, but in excess of his real, authority are binding 
 upon his principal as to third persons who have relied upon the 
 agent's possessing such authority as he appears to possess.^ 
 
 character of the agency. Robinson v. 
 MoUett, L. R. 7 H. of L. 802. 
 
 1. Tippets z/. Wallcer, 4 Mass. 596; 
 Brewster v. Hobart, 15 Pick. (Mass.) 302; 
 Stoughton V. Baker, 4 Mass. 522; s. c, 
 3 Am. Dec. 236; Connor v. Parker, 114 
 Mass. 331; Lewis v. Ingersoll, 3 Abb. 
 App. Dec. (N. Y.) 55; Commercial Bank 
 V. Norton, i Hill (N. Y.), 501; Hawley 
 V. James, 5 Paige (N. Y.), 318) Lyon v. 
 Jerome, 26 Wend. (N. Y.), 485; s. c, 37 
 Am. Dec. 271; Lynn v, Burgoyne, 13 B. 
 Mon. (Ky.)40o; Bocock w. Pavey, 8 Ohio 
 St. 270; Merchants' Nat. Bank v. Tren- 
 holm, 12 Heisk. (Tenn.) 520; Warner v. 
 Martin, 11 How. (U. S.) 209, 223; Expr. 
 ' Winsor, 3 Story (U. S.), 411; Despatch 
 Line v. Bellamy Mfg. Co., 12 N. H. 205; 
 Gillis V. Bailey, i Fost. (N. H.) 149; An- 
 dover v. Grafton, 7 N. H, 304; Mayer v. 
 McLure, 36 Miss. 389; s. c, 72 Am. Dec.' 
 190; Bissell V. Roden, 34 Mo. 63; Mc- 
 Clure V. Miss. Valley Ins. Co., 4 Mo. 
 App. 148; Crozier v. Reins, 4 111. App. 
 564; Mason v. Waite, 4 Scam. (JU.) 127; 
 Locke's Appeal, 72 Pa. St. 491; McCor- 
 mick V. Bush, 38 Tex. 314; Smith v Sub- 
 lett, 28 Tex. 163; Entz v. Mills, i McM. 
 (S. Car.) 453; Wilson v. York, etc., R. 
 Co., n Gill & J. (Md.) 58,74; Hunt v. 
 Douglass, 22 Vt. 128; Loomis v. Simp- 
 son, 13 Iowa, 532; Furnas v. Frankman, 
 6 Nebr. 429. 
 
 Merely ministerial acts may, however, 
 be delegated by the agent. Williams v. 
 Woods, 16 Md. 220; Bodine v. Ins. Co., 
 51 N. Y. 117; Commercial Bank v. Nor- 
 ton, I Hill (N. Y.), 501 •, Com. i/.' Harn- 
 den, 19 Pick. (Mass.) 482; Poree v. Bon- 
 neval, 6 La. Ann. 386; Norwich Univer- 
 sity V. Denny, 47 Vt. 13; Grady v. Am. 
 Cent. Ins. Co., 60 Mo 116: Newell v. 
 
 Smith, 49 Vt. 255; Star Line z-. VanVliet, 
 43 Mich. 364. 
 
 2. Lawlor v. Keaquick, i Johns. Cas. 
 (N. Y.) 175, 179, n.; Judson v. Sturges, 5 
 Day (Conn.), 556, 560; Forrester w. Board- 
 man, I Story (U. S. C. Ct.), 43; Williams 
 V. Shackleford, 16 Ala. 318; Greenleaf v. 
 Moody, 13 Allen (Mass.), 363. 
 
 3. Evans Agency (Ewell's Ed.) pp. loi, 
 452. 
 
 4. Evans Agency (Ewell's Ed.) pp. loi, 
 452. 
 
 An agent's actual and ostensible au- 
 thority may be the same. 
 
 An agent's ostensible authority will in- 
 clude all his implied authority, in the ab- 
 sence of notice that it is less. Thus an 
 agent to sell harvesters has ostensible au- 
 thority to warrant. McCormick v. Kelly, 
 28 Minn. 135. So a power to sell confers 
 an apparent power to receive payment. 
 Collins V. Newton, 7 Baxt. (Tenn.) 269. 
 
 5. Evans Agency (Ewell's Ed.), 136, 
 137; Story Agency (gth Ed.), §§ 130, 
 133; Gallinger .z'. Lake Shore, etc., Co., 
 30 N. W. R. (Wis.) 790; Griggs v. Sel- 
 den, 5 Alt. R. (Vt.) 504; Dewar v. Bank 
 of Montreal, 3 N. E. R. (111.) 746; 
 Story Agency (gth Ed.), § 133; Anderson 
 V. Cooley, 21 Wend. (N. Y.) 279; Delafield 
 Illinois, 26 Wend. (N. Y.) 192; Putnam 
 V. French, 53 Vt. 402; s. c, 38 Am. Rep. 
 682; Cutler V. Boyd, 124 Mass. 181 ; 
 Hatch V. Taylor, 10 N. H. 538; Fox v. 
 Fisk, 6 How. (Miss.) 345; Johnson v. 
 Wingate, 29 Me. 404; Lake Shore, etc., R. 
 Co. V. Foster, 104 Ind. 293; Lawson v. 
 Chicago, etc., R. Co., 64 Wis. 447; 
 Union, etc., Ins. Co. v. Masten, 3 Fed. 
 Repr. 881; Schimmelpennich ». Bayard, 
 I Pet. (U. S.) 264; Continental Bank v. 
 National Bank, 50 N. Y. 575; Cooke v. 
 
 1030 
 
Actual and 
 
 A UTHORITY. 
 
 Ostensible. 
 
 Third persons are not concluded by secret instructions to the 
 agent limiting or controlling his apparent authority.^ 
 
 35 Iowa, 281; Nussbaum v. Heilbron, 63 
 Ga. 312; Thompson v. Douglass, 64 Ga. 
 57; City Bank of Macon v. Kent, 57 Ga. 
 283; Carmichael v. Buck, 10 Rich. (S. 
 Car.) 332; s. c, 70 Am. Dec. 226;- Ster- 
 ling Bridge Co. v. Baker, 75 111. 139; 
 jEtna Ins. Co. v. Maguire, 51 1,11. 342; 
 Hartford Ins. Co. v. Farrish, 73 111. 166; 
 Rockford Ins. Co. v. Nelson, 65 111. 415; 
 Union M. L. Ins. Co. v. White, 106 111. 
 67; Houghton V. First Nat. Bank, 26 
 Wis. 663; Planters' Mut. Ins. Co. v. 
 Lyons, 38 Tex. 253; Continental Ins. 
 Co. V. Kasey, 25 Gratt. (Va.) 268; Geor- 
 gia, etc., Ins. Co. v. Kinnier, 28 Gratt. 
 (Va.) 88; Walker v. Skipwith, Meigs 
 (Tenn.) 502; s. c, 33 Am. Dec. 161; 
 Kinealy v. Burd, 9 Mo. App. 359; 
 Chouteaux v. Leech, 18 Pa. St. 224; 
 s. c, 57 Am. Dec. 602; Bryant v. Moore, 
 26 Me. ■84;- s. c, 45 Am. Dec. 96; Allen 
 V. Ogden, i Wash. (U. S.) 174; U. S. v. 
 Howard, 7 Biss. (U. S.) 56. 
 
 Where a third party has notice of such 
 instructions, the principal will, of course, 
 not be bound. Stainer v. Tysen, 3 Hill 
 (N; Y.), 279; Barnard v. Wheeler, 24 Me. 
 412; Bryant v. Moore, 26 Me. 84; s. c, 
 45 Am. Dec. 96; Longworth v. Conwell, 
 2 Blackf. (Ind.) 469; Leathers w. Spring- 
 field, 65 Mo. 507; Lake Shore & M. S. 
 R. Co. V. Foster, 4 N. Fast. Repr. (Ind.) 
 20. 
 
 An agreement between principal and 
 agent that the latter shall sell only to re- 
 sponsible parties, furnishes no defence to 
 the principal in an action by a third per- 
 son. Byrne v. Massasoit Packing Co., 
 137 Mass. 313. 
 
 Where an agent is appointed by writ- 
 ing, persons affected with notice of the 
 existence of the writing are also affected 
 with notice of the Scope of the agent's 
 authority as set forth therein, whether 
 ■ they actually see such writing or not. 
 Story Agency (gth Ed.), § 72; Evans 
 Agency (Ewell's Ed.), 143; Attwood v. 
 Munnings, 7 B. & C. 278, 283-285; Wiih- 
 ington V. Herring, 5 Bing. 442; Stainer 
 V. Tysen, 3 Hill, 279; North River Bank 
 V. Aymar, 3 Hill, 262; Munn v. Commis- 
 sion Co., 15 Johns. (N. Y.) 44; Rossiter 
 V. Rossiter, 8 Wend. (N. Y.) 498, 499. 
 
 Under a contract of agency for the sale 
 of pianos, it was required that all orders 
 should be sent to the principal to be filled 
 by him. The agent had possession of a 
 piano under a special contract of bail- 
 ment, which he sold. Held, the pur- 
 chaser, having knowledge of agency, was 
 chargeable with notice of its terms, and 
 
 State Nat. Bank, 52 N. Y. 96; Banks v. 
 Everest, 35 Kan. 687; Fouque v. Bur- 
 gess, 71 Mo. 389. • 
 
 When one holds another out to the 
 world as his agent, in determining the 
 liability of the principal the question is, 
 not what authority was intended to be 
 given to the agent, but what authority 
 was a third person dealing with him jus- 
 tified from the acts of the principal in be- 
 lieving was given to him. Griggs v. Sel- 
 den, 58 Vt. 561; Walsh v. Hartford Fire 
 Ins. Co., 73 N. Y. 5. 
 
 An agent cannot bind his principal by 
 acts in excess of his ostensible authority. 
 Citizens' Savings Bank v. Hart, 32 La. 
 Ann. 22 ; Fouque v. Burgess, 71 Mo, 
 
 389- 
 
 The agent of a county to contract for 
 . repairs on county buildings, has no osten- 
 sible authority to bind the county to pay 
 more in county warrants than the cash 
 value of the labor and materials in United 
 States currency. Barton v. Swepston, 44 
 Ark. 437. 
 
 1 Story Agency (gth Ed.), § 73; Eyans 
 Agency (Ewell's Ed.'), p. i43; Cross v. 
 Haskins, 13 Vt. 536; Davenport v. Peo- 
 ria Mar. & Fire Ins. Co., 17 Iowa, 276; 
 Cruzan v. Smith, 41 Ind. 288; Munn v. 
 Commission Co., 15 Johns. (N. Y.) 44; 
 Bridenbecker v. Lowell, 32 Barb. (N. Y.) 
 9; Kinealy v. Burd, 9 Mo. App. 359; 
 Farrar v. Duncan, 29 La. Ann. 126; Hig- 
 gms V. Armstrong, lO Pac. R. (Colo.) 232; 
 Hatch V. Taylor, 10 N. H. 538; Towle 
 ■V. Leavitt, 23 N. H. 360; s. c, 55 Am. 
 Dec' 195; State v. Foster, 23 N. H. 348; 
 s. c, 55 Am. Dec, 191; Commercial 
 Bank v. Kortright, 22 Wend. (N. Y.) 348; 
 s. c. , 34 Am. Dec. 317; Johnson v. Jones, 
 4 Barb. (N. Y.) 369; Dows z/. Greene, 16 
 Barb. <N. Y.) 72; Angell v. Hartford Ins. 
 Co., 59 N. Y. 171; Barber v. Britton, 26 
 Vt. 112; Walsh V. Pierce, 12 Vt. 130 ; 
 Lobdell V. Baker, i Mete. (Mass.) 193; 
 s. c, 35 Am. Dec. 358; Williams v. 
 Mitchell, 17 Mass. .98; Wilkins v. Com- 
 mercial Bank, 6 How. (Miss.) 217; 
 Planters' Bank v. Cameron, 3 Sm. & M. 
 (Miss.) 609; St. John v. Redmond, 9 
 Port. (Ala.) 428; Talmage w. Bierhause, 
 103 Ind. 270; Robbins v. Magee, 76 Ind. 
 381; Stothard v. AuU, 7 Mo. 318; Minter 
 V. Pac. R. Co., 41 Mo. 503; Eaglfe Bank 
 V. Smith, 5 Conn. 71; s. c, 13 Am. Dec. 
 37; Swazey v. Un. Man. Co., 42 Conn. 
 556; Woodbury Sav. Bank v. Charter 
 Oak Ins. Co., 31 Conn. 529; Lyell v. 
 Sanbourn, 2 Mich. 109; Bell v. Offutt, 
 10 Bush (Ky.), 632; Palmer v. Cheney, 
 
 1031 
 
AUeged Agent's Declarations. A UTHORITY. 
 
 Special and General. 
 
 12. Declarations of Alleged Agent as to his Authority. — Third per- 
 sons are not justified in relying upon the declarations of one hold- 
 ing himself out as agent, as to the existence^ or extent** of his 
 authority. 
 
 13. Special Authority. — A special authority is an authority to do 
 a particular act or acts.* 
 
 14. General Authority. — A general authority is an authority to act 
 in a certain character or capacity.* 
 
 acquired no title as against the principal. 
 Cummins v. Beaumont, 68 Ala. 204. 
 
 1. Winch V. Baldwin, 28 N. W. Repr. 
 (Iowa) 62; Wood Mowing, etc., Co. v. 
 Crow, 30 N. W. Repr. (Iowa) 609; 
 French v. Wade, 35 Kans. 391; Bacon v. 
 Johnson, 56 Mich. 182; McDonough v. 
 Heyman, 38 Mich. 334; Grover & B. S. 
 M. Co. V. Polhemus, 34 Mich. 247; 
 Haughton v. Maurer, 55 Mich. 323. 
 
 2. Brigham v. Peters, i Gray (Mass.), 
 139; StoUenwerok v. Thacher, 115 Mass. 
 224; Carter v. Burnham. 31 Ark. 212; 
 Howe Mach. Co. v. Clark; 15 Kans. 492; 
 Dawson v. Landreaux. 29 La. Ann. 363; 
 Peck V. Ritchey, 66 Mo. 114; Reynolds 
 V. Continental Ins. Co., 36 Mich. 131; 
 Grover & Baker S. Mach. Co. v. Polhe- 
 mus, 34 Mich. 247; Stringham v. St. 
 Nicholas Ins. Co., 4 Abb. App. Dec. 
 (N. Y.) 315; Mapp V. Phillips, 32 Ga. 72; 
 Galbreath v. Cole, 61 Ala. 139. Compare 
 Farmers', etc., Bank v. Butchers', etc., 
 Bank, 16 N. Y. 125; =. c, 69 Am. Dec. 
 678. 
 
 In Mussey ■v. Beecher, 3 Cush. (Mass.) 
 511, an agent was by instrumeirt in writ- 
 ing authorized to contract debts, but not 
 in excess of two thousand dollars. It 
 was held that the principal was not bound 
 by a debt contracted by the agent with an 
 innocent third person in excess of the 
 limit. Compare North River Bank v. 
 Aymar, 3 Hill, 262; New York, etc., R. 
 Co. V. Schuyler, 34 N. Y. 30, 66, 68, 70; 
 Griswold v. Haven, 25 N. Y. 595; With- 
 ington V. Herring, 5 Bing. 442. 
 
 In New York, etc., R. Co. v. Schuyler, 
 it was said by Selden, J., "that where 
 the authority of the agent depends upon 
 some fact outside the terms of his power, 
 and which from its nature rests particu- 
 larly within his knowledge, the principal 
 is bound by the representation of the 
 agent, although false, as to the existence 
 of such fact." 
 
 In such a case the fact that the agent 
 assumes to act is a representation that 
 the state of facts is such as to warrant 
 his acting. New York, etc., R. Co. u. 
 Schuyler, 34 N. Y. 30. 70. 
 
 3. Evans Agency (Ewell's Ed.), p. loi; 
 Story Agency (gth Ed.), §§ 17, 19. 
 
 A principal is not bound by the act of 
 a special agent when done in disregard 
 of his instructions, unless perhaps where 
 the principal's own negligence has enabled 
 the agent to perpetrate a fraud thereby. 
 -Saginaw, etc., R. Co. v. Chappell, 56 
 Mich. 190. 
 
 The depositary of an escrow is a special 
 and not a general agent, and the person 
 dealing with him is bound to know the 
 extent of his powers. Land Co. v. Peck, 
 112 111. 408. 
 
 4. Evans Agency (Ewell's Ed.), p. loi; 
 Story Agency (9th Ed.), §§ 17, 19, 126 et 
 seq. ., 
 
 The term "general authority " is used to 
 include two dissimilar thiiigs: First, an 
 authority to represent the principal in the 
 transaction of a business, or in some 
 matter involving the performance of a. 
 large number of acts and a 'Continuation 
 of the agency for A considerable time. 
 Evans Agency (Ewell's Ed.), 102. Second, 
 an authority conferred upon an agent 
 belonging to some one of the well-rec- 
 ognized classes of agents, such as broker.'!, 
 factors, etc., no matter how limited the 
 subject-matter of the agency may be. 
 Evans Agency (Ewellls Ed.), 102; Russell 
 Merc. Agents, 62. ' 
 
 The distinction between special and 
 general agents is of little value (Evans 
 Agency (Ewell's Ed.), 2, 452; Story 
 Agency (gth Ed.), § 133), for the reason 
 that questions whether an agent is special 
 or general is never material of itself, and 
 is only important in so far as it bears: 
 upon the ulterior questions of an agent's 
 implied or ostensible authority. Evans. 
 Agency (Ewell's Ed.), 452; 2 Kent Comm. 
 (13th Ed.) 620, n. y'. , 
 
 A general agency, it is submitted, is 
 merely one of the ordinary well-recog- 
 nized kinds of agencies, the powers, 
 duties, and incidents of which are well 
 known, such, for instance, as the agency 
 of a factor or broker. Undoubtedly a 
 principal employing a broker or factor 
 is, in the absence of express restrictions, 
 assKmed to delegate to such agent all the 
 powers customarily exercised by such 
 agents, and the fact that the agency is 
 " general " will have an important bear- 
 
 1033 
 
Implied Authority of 
 
 A UTHORITY. Particular Classes of Agents. 
 
 15. Implied Authority of Particular Classes of Agents. — In nearly 
 every agency the authority of the agent is, to some extent, implied. 
 It is rare that the agent's instructions are explicit upon every point. 
 
 thority. Louisville Coffin Co. v. Stokes* 
 78 Ala. 372. 
 
 A clerk managing his principal's busi- 
 ness during his absence, has no power to 
 bind his principal for the debt of a ihirdi 
 party. Ruppe v. Edwards, 52 Mich. 411;. 
 New York Iron Mine c Negaunee Bank, 
 39 Mich. 644; Carter v. Burnham, 31 Ark. 
 212; Gulick V. Gfover, 33 N. J. L. 463;. 
 Bank V. Johnson, 3 Rich. (S. Car.) 42. 
 
 Power to represent all the interests of 
 the principal's business does not imply 
 power to engage in a new and different 
 business. Campbell v. Hastings, 29 Ark. 
 512. Nor to sell the principal's land. 
 Smith V. Stephenson, 45 Iowa, 645. 
 
 An authority given by an administra- 
 trix of an estate to manage her own affairs, 
 does not extend to the affairs of the 
 estate. Succession of Pipes, 26 La. Ann. 
 203. 
 
 A general agent to sell all the product 
 of a manufactory, has implied authority 
 to bind his principals by a contract for 
 the sale and future delivery of goods to 
 be produced. National Furnace Co. v. 
 Keystone Manuf. Co., no 111. 427. 
 
 A manager of a railroad, empowered, 
 in case of accident, to clear the road, has 
 implied authority to put into a farm-yard 
 swine let loose by an accident. Hawks 
 V. Locke, 139 Mass. 205. 
 
 A general manager of a railroad has 
 implied authority to employ surgical aid' 
 for an injured employee. Walker v. Great 
 Western R. Co., L. R. 2 Ex. 228. (As to 
 the power of a general manager of a man- 
 ufacturing corporation in this regard, see 
 Swazey z'. Union Mfg. Co., 42 Conn. 556.) 
 Also a sub-inspector of railway police. 
 Langan v. Great Western R. Co., 30 L. 
 T. N. S. 173. Also a general superin-- 
 tendent. Atchison, etc., R. Co. v. 
 Reecher, i Am. & Eng. R. R. Cas. 343; 
 s. c, 24 Kan. 228. Compare Stephenson 
 V. New York, etc., R. Co., 2 Duer (N. Y.), 
 341. A division superintendent also -has 
 implied authority to engage surgical aid 
 for Injured employees. Pacific R. Co. v. 
 Thomas. Iq Kan. Zq*' Union Pacific R. 
 Co. V. Beatty, 10 Pac. R. (Kan.) 845; 
 Brown v. Missouri, etc.. R. Co., 67 Mo. 
 122. But not for injured passengers. 
 Union Pacific R. Co. v. Beatty, 10 Pac. 
 R. (Kan.) 845. A general superintendent 
 may authorize a station-master to employ 
 surgical aid. Atchison, etc., R. Co. v. 
 Reecher, i Am. & Eng. R. R. Cas. 343; 
 s. c, 24 Kan. 228. 
 
 A station-agent has no implied author- 
 
 ing upon the nature and extent of the 
 agent's implied powers. Still it must be 
 remembered that the real question to be 
 determined is the nature and extent of 
 such implied powers, as inferred from the 
 nature of the matter delegated, and the 
 customs and usages of business, and that 
 the classification into general and special 
 agencies is, as to this, of little or no help. 
 So as to the question of an agent's, ap- 
 parent authority also the classification 
 is unimportant. A third person is en- 
 titled to assume that an agent possesses 
 what power -his principal has held him 
 out to possess,, whether the agent is gen- 
 eral or special. Where an agent is em- 
 ployed whose ordinary powers and duties 
 are well recognized, tliiid persons are en- 
 titled to assume that the principal ex- 
 pressly or impliedly conferred such ordi- 
 nary powers upon the agent; but it does 
 not help us to fix the extent of the appar- 
 ent powers of such an agent to call him 
 a general agent. Story Agency (gth Ed.), 
 § 133, and note. 
 
 A general agent to manage or conduct 
 a business has authority to do everything 
 necessary and proper or usual in the or- 
 dinary course of the business. Cummings 
 V. Sargent, 9 Mete. (Mass.) 172; Taylor 
 V. Labeaume, 14 Mo. 572, 17 Mo. 338; 
 Baltimore, etc., Co. v. Brown, 54 Pa. St. 
 77; Bailey v. Rawley, i Swan (Tenn.), 
 295; Shepherd v. Milwaukee Gas Co., 11 
 Wis. 234; Bridenbecker v. Lowell, 32 
 Barb. (N. Y.) 9; Minor v. Mechanics' 
 Bank, I Pet. (U. S.) 46; Sentell v. Ken- 
 nedy, 29 La. Ann. 679; German Ins. Co. 
 V. Grunert, 112 111. 68. 
 
 He may not sign or indorse notes. 
 Sewanee Mining Co. v. McCall, 3 Head 
 (Tenn.), 619; Rossiter v. Rossiter, 8 
 Wend. (N. -Y.) 494; s. c, 24 Am. Dec. 62; 
 Holtsingeri'. Nat., etc.. Bank, i Sweeney 
 (N, Y.), 64. Compare Bailey v. Rawley, 
 I Swan (Tenn.), 295; White v. Westport 
 Mfg. Co., I Pick. (Mass.) 21s. 
 
 He may settle claims morally though 
 not legally binding on his principal. 
 Bergenthal v. Fiebrantz, 48 Wis. 435. 
 
 An agent to manage aJrotel nas no im- 
 plied authority to contract with a livery- 
 stable keeper for the return and safe 
 keeping of carriages furnished guests of 
 the hotel. Brockway v. Mullin, 46 N. J. 
 L. 448; s. «.., 50 Am. Rep. 442. 
 
 A husband employed by a wife to man- 
 age a business for her is a general agent, 
 and third persons are not bound by secret 
 instructions limiting his apparent au- 
 
 1033 
 
Implied Authority of 
 
 A UTHORITY. Particular Classea of Agents. 
 
 In the case of certain well- recognized classes of agents, such as 
 brokers, factors, auctioneers, etc., settled customs and usages of 
 business have given rise to well-established implied powers.^ 
 
 iiy to hire medical aid for injured em- 
 pi'oyee. Tucker v. St. Louis; etc., R. 
 Co., 54 Mo. 177; Cox V. Midland Coun- 
 ties R. Co., 3 Exch. 268. Nor has a phy- 
 sician. Mayberry v. Chicago, etc., R. 
 Co., II Am. & Eng. R. R. Cas. 2g; s. c, 
 75 Mo. 492. Or a conductor. Tucker j;. St. 
 Louis, etc., R. Co., 54 Mo. 177. But where 
 a brakeman is injured in the discharge 
 of his duty, at a point distant from the 
 chief offices of the company, and is in 
 need of immediate surgical attendance, 
 the conductor has implied power to em- 
 ploy a surgeon, if there is no superior 
 agent of the company present. Terre 
 H>aute, etc., R. Co. v. McMurray, 22 Am. 
 & Eng. R. R. Cas. 371; =. ...,98 Ind. 358; 
 49 Am. Rep. 752. 
 
 Authority to care for an injured em- 
 ployee implies a power to arrange for his 
 board and care. Atchison, etc., R. Co. 
 ■V. Reecher, i Am. & Eng. R. R. Cas. 
 343; s. c, 24 Kan. 228. But authority to 
 purchase medicines on credit does not im- 
 ply power to contract for board and nurs- 
 ing. Mayberry v. Chicago, etc., R. Co., 
 II Am. & Eng. R. R. Cas. 29; s. c, 75 
 Mo. 492. Nor does authority to employ 
 surgical aid for a passenger authorize its 
 employment for an injured employee. 
 Shriver v. Stephens, 12 Pa. St. 258. 
 
 Text writers speak of universal agen- 
 cies as distinguished from general agen- 
 cies. A universal agency is one where 
 the agent has authority to represent the 
 principal in all acts that the principal can 
 delegate. The agent is the alter ego of 
 the principal. Such an agency, although 
 theoretically possible, never actually ex- 
 ists. Story Agency (gth Ed.), § 21. 
 
 1. Story Agency (9th Ed.), § 106; Ev- 
 ans Agency (Ewell's Ed.), book 2, ch. 3. 
 
 The following note contains some im- 
 plied powers of certain of the more 
 important classes of agents: 
 
 Auctioneers. — An auctioneer has im- 
 plied authority to prescribe the rules of 
 bidding and the terms of the sale. Evans 
 Agency (Ewell's Ed.), 121; Story Ag- 
 ency (gth Ed.), § 107. To bind his prin- 
 cipal by declarations made at the time of 
 sale. Evans Agency (Ewell's Ed.), 121; 
 Story Agency (9th Ed.), § 107. To sue 
 the buyer in his own name. Story Ag- 
 ency (gth Ed.), § 107; Evans Agency 
 (Ewell's Ed.), 121. He has no implied 
 authority to receive the purchase-money 
 for land sold by him. Evans Agency, p. 
 122; Sykes v. Giles, 5 M. & W. 645. Or 
 
 to employ another person to sell the 
 property. Evans Agency (Ewell's Ed.), 
 122; Coles V. Ti'ecothick, 9 Ves., Jr. 254. 
 Or to sell on credit. Evans Agency 
 (Ewell's Ed.), 122; Williams v. Milling- 
 ton, I H. Blk. 81. Or to allow rescission 
 of contract of sale. Evans Agency 
 (Ewell's Ed.), 122; Nelson v. Aldridge, 
 2 Stark. 435. Or to sell by private con- 
 tract. Evans Agency (Ewell's Ed.), 122; 
 Daniels v. Adams, i Ambl. 495. 
 
 An auctioneer cannot warrant the 
 quality of the goods sold. He has only 
 power to sell, not to warrant. The 
 Monte AUegre, g Wheat. (U. S.) 616, 647; 
 Blood V. French, g Gray (Mass.), 197. 
 Nor can he delegate his authority. Stone 
 V. State, 12 Mo. 400. 
 
 Brokers. — A broker has implied au- 
 thority to sign the contract of sale (bought 
 and sold note) so as to bind both parties. 
 Parton v. Crofts, 16 C. B. N. S. 11. 
 
 A broker to sell goods has implied au- 
 thority to sell by sample or with war- 
 ranty. Story Agency (gth Ed.), § log; 
 Andrews v. Kneeland, 6 Cow. (N. Y.) 354; 
 The Monte Allegro, g Wheat. 643, 644. 
 
 Ordinarily he has no authority by vir- 
 tue of his oflSce to contract in his own 
 name. Story Agency (gth Ed.), § 109. 
 Or to buy or sell on credit, unless by 
 special usage of trade. Story Agency 
 (gth Ed.), S^ 109. Or to receive payment 
 for property sold by him. Baring v. Cor- 
 rie, 2B. & Aid. 137; Campbell t/. Hassell, 
 I Stark. 2.33. (Insurance brokers have 
 by usage an authority to adjust and re- 
 ceive payment of losses. Story Agency, 
 § 103; Todd V. Reid, 4 B. & Aid. 210; 
 Scott V. Irving,, I B. & Aid., 605; Bons- 
 field V. Cresswell, i Campb. 43, note.) 
 Or to delegate his authority. Story 
 Agency (gth Ed.), § log; Henderson v. 
 Barnwell; i Y. & Jerv. 387. 
 
 A broker employed to enter into a 
 charter-party for his principal has no au- 
 thority to make tihe freight payable to 
 himself. Walshe v. Provan, 8 Exch. 843. 
 
 A broker to sell has no power to sub- 
 mit his principal's case to arbitration. In- 
 graham V. Whitmore, 75 111. 24. 
 
 Factors. — Factors have implied au- 
 thority to buy and sell in their own 
 names. Story Agency (gth Ed.), § no. 
 And to sell on credit. Story Agency, § 
 no; Greely z/. Bartlett, i Greenl.(Me.) 172; 
 Forestier v. Badman, i Siory, 43; Byrne 
 V. Schwing, 6 B. Mon. (Ky.) igg; Day- 
 light Buirner Co. -u. Odlin, 51 N. H. 56. 
 
 1034 
 
Implied Authority in 
 
 A UTHORITY. 
 
 Particular Agencies. 
 
 16. Implied Authority in Particular h%e.-a.'cii&%.— Agent to SelL- 
 agent to sell has implied authority to warrant. ^ 
 
 -An 
 
 (The factor is held to a very close exam- 
 ination of the credit of the parties he 
 trusts. Foster v. Waller, 75 111. 464 ) 
 And to insure. Story Agency (gth Ed.), 
 § Ill- 
 Factors may sue in their own names. 
 White V. Chouteau, 10 Barb. (N. Y.) 202; 
 Story Agency (gth Ed.), § 112. 
 
 Factors have no implied authority to 
 barter goods. Story Agency (gth Ed.), § 
 113; Guerreiro v. Peile. 3 B. & Aid. 616; 
 Wheeler, etc., Mfg. Co. i'. Givan, 65 Mo. 
 8g. Or to pledge them, except for duties 
 or other charges due thereon. Story 
 Agency (gth Ed.), § 113. (This has been 
 changed in many jurisdictions by statutes 
 known as Factors' Acts. This is the case 
 in England, and in New York, Pennsyl- 
 vania, Rhode Island, and other States.) 
 Or to delegate their authority. Loomis 
 ■V. Simpson, 13 Iowa, 532; Warner v. 
 Martin, 11 How. (N.Y.) 2og. 
 
 Partners. — A partner is the general 
 agent for the firm in the transaction of all 
 ordinary firm business. Story Agency 
 (gth Ed.), § 124. Hence the extent of 
 his authority will depend upon the nature 
 of the business in which the firm is en- 
 gaged. Story Agency (gth Ed.), § 124. 
 
 For the implied authority of other gen- 
 eral classes of agents, see separate titles, 
 such as Attorney, Master of a Ship-, 
 etc. 
 
 Bailroad Engineer. — A railroad engi- 
 neer has no implied authority to bind the 
 company by contracts. Gardner v. Bos- 
 ton, etc., R. Co., 70 Me. 181. 
 
 Railroad Ticket Agent. — A railroad 
 ticket-agent has no implied authority to 
 delegate. Frank v. Ingalls, 41 Ohio St. 
 560. 
 
 Passenger Agent. — A railroad passenger 
 agent has no implied authority to solicit 
 freight. Taylor v. Chicago, etc., R. Co., 
 74 111. 86. 
 
 Station Agent. — A stationagenthas im- 
 plied authority to contract to furnish cattle 
 cars at his station on a particular date. 
 Harrison v. Missouri Pac. R. Co., 74 Mo. 
 364; Wood V. Chicago, M. & St. P. R. 
 Co., 27 N. W. R. (Iowa) 473. But only 
 at his own station. Voorhees v. Chic9.go, 
 R. & P. R. Co., 30 N. W. Repr. (Iowa) 29. 
 
 Telegraph Operator.— A telegraph-op- 
 erator has no implied authority to pass 
 upon a claim for damages against the 
 company. Young v. Telegraph Co., 65 
 N. Y. 163; Western Union Tel. Co. v. 
 Rains. 63 Tex. 27. 
 
 1. Woodford v. McClenahan, 4 Gilm. 
 •IIU ) 85; McCormick v. Kelly, 28 Minn. 
 
 135; Deering v. Thom, 29 Minn. 120; 
 Randall v. Kehlor, 60 Me. 37; s. c, 11 
 Am. Rep. 169; Bryant v. Moore, 26 Me. 
 84; s. c. 45 Am. Dec. 96; Nelson z'. Cow- 
 ing, 6 Hill (N. Y.), 336; Tice v. Gallup, 
 2 Hun (N. Y.), 446;, Murray v. Brooks, 
 41 lowst, 45; Bootby v. Scales, 27 Wis. 
 626; Huguley v. Morris, 65 Ga. 666; 
 Dayton v. Hooglund, 39 Ohio St. 671; 
 Palmer v. Hatch, 46 Mo'. 585; Victor, 
 etc., Co. V. Rheinschild, 25 Kan. 534; 
 Schuchardt v. Aliens, i Wall. (U. S.) 
 35g; Croom w. Shaw, i Fla. 211; Apple- 
 gate V. MofBtt, 60 Ind. 104; Hunter v. 
 Jameson, 6 Ired. (N. C.) 252; Ezell v. 
 Franklin, 2Sneed (Tenn.), 236; Bradford 
 V. Bush, 10 Ala. 386; Dingle v. Hare, 7 
 C. B. N. S. 145; Udell V. Atherton, 7 H. 
 & N. 172; Hunter v. Jameson, 6 Ired. 
 L. (N. Car.) 252. Compare Perrine v. 
 Cooley, 42 N. J. L. 623; s. c, 32 Am. 
 Rep. 210; Scott V. McGrath, 7 Barb. (N. 
 Y.) 53; Decker v. Fredericks, 47 N. J. L. 
 469; Brady v. Todd, g C. B. N. S. 5g2; 
 Gibson v. Colt, 7 Johns. (N. Y.) 390; 
 Smith V. Tracy, 36 N. Y. 79; Howard v. 
 Sheward, L. R. 2 C. P. 148. 
 
 An agent authorized to sell a claim due 
 by judgment on execution has no implied 
 power to authorize a guaranty of the va- 
 lidity gf the claims proposed for sale. Lips- 
 comb V. Kittell, II Humph. (Tenn.) 256. 
 
 A broker has no implied power to war- 
 rant bank-stock sold by him. Smith v. 
 Tracy, 36 N. Y. 7g, He cannot warrant 
 that it will be paid at maturity. Graul v. 
 Strutzel, 53 Iowa, 712. 
 
 The power of an agent to warrant de- 
 pends largely upon custom. Upton v. 
 Suffolk Co. Mills, II Cush. (Mass.) 586; 
 Herring v. Skaggs, 73 Ala. 446. 
 
 An agent with authority to sell land 
 may warrant against the lawful claims of 
 all persons claiming under the principal. 
 Ward V. Bartholomew, 6 Pick. (Mass.) 
 40g; Blackman v. Charlestown, 42 N. H. 
 125. But he may not warrant the qual- 
 ity and quantity of the land. Nat. Iron 
 Co. V. Bruner, 4 C. E. Green (N. J.), 331. 
 
 An authority to sell goods not in the 
 agent's possession generally implies a 
 power to warrant. Talmage v. Bier- 
 hause, 103 Ind. 270. 
 
 One selling by sample has authority to 
 warrant the goods shall be like sample. 
 Murray v. Smith, 4 Daly (N. Y.), 277; 
 Andrews v. Kneeland. 6 Cow. (N. Y.) 
 354; Schuchardt v. Aliens, i Wall. (U. S.) 
 35g; Dayton v. Hooglund, 3g Ohio St. 
 671. 
 
 An agent to sell has implied authority 
 
 1035 
 
Implied Authority of 
 
 AtTTHORITY. 
 
 Fajticular Ag^enciee. 
 
 An agent to sell goods has an implied power to receive pay- 
 ment. ^ 
 
 For a collection of special cases bearing upon the implied powers 
 of an agent to sell, see note.** 
 
 Agent to Collect. — An agent to collect a debt has no implied 
 authority to compromise or release,^ or to receive anything but 
 
 to bind his principal by stipulations, us- 
 ual and customary in effecting a sale. 
 Herring v. Skaggs, 62 Ala. 180. 
 
 An agent to sell harvesters has implied 
 authority to make sales conditional upon 
 their working well. Deering v. Thorn, 
 23 Minn. 120; Murray I'. Brooks, 41 Iowa, 
 45; Boothby v. Scales, 27 Wis. 626. But 
 an agent to sell notes has no authority to 
 guarantee them. Graul v. Strutzel, 53 
 Iowa, 712. 
 
 An agent for the sale of a horse has 
 implied authority to warrant. Tice v. 
 Gallup, 2 Hun (N. Y.), 446. Compare 
 Decker v. Frederick's, 47 N. J. L. 469. 
 
 1. Hatch V. Taylor, 10 N. H. 538; 
 Cross V. Haskins, 13 Vt. 536; Hoskins v. 
 Johnson, 5 Sneed (Tenn.), 469. Compare 
 Harris v. Simmerman, 81 111. 413, and 
 Clark V. Smith, 88 111. 298. Especially 
 when the agent has possession of the 
 goods sold. Seiple v. Irwin, 30 Pa. St. 
 
 513. 
 
 But an agent to take orders for goods 
 has no implied authority to receive pay- 
 ment for them. Janney v Boyd, 30. 
 Minn. 319; Chambers v. Short, 79 Mo. 
 204; Greenhood v. Keator, 9 Bradw. 
 (111.) 183; Kornemann v. Monaghan, 24 
 Mich. 36; Butler v. Dorman, 68 Mo. 298; 
 s. c, 30 Am. Rep. 795; McKindly v. 
 Dunham, 55 Wis. 515; s. c, 42 Am. Rep. 
 740; Clark V. Smith, 88 111. 298; Abra- 
 hams V. Weiller, 87 111. 179; Higgins v. 
 Moore, 34 N. Y. 417; Greenleaf v. Egan, 
 30 Minn. 316; Kohn v. Washer, 64 Tex. 
 
 131- 
 
 Nor has a broker. Higgins v. Moore, 
 34 N. Y. 417; Crosby v. Hill, 39 Ohio St. 
 100; Graham v. Duckwall, 8^ Bush (Ky.), 
 12. Or salesman on commission, who has 
 not possession of the goods. Seiple v. 
 Irwin, 30 Pa. St. 513. 
 
 2. An agent to sell may rescind a rule. 
 Scott V. Wells, 6 Watts & S. (Pa.) 357; 
 9. c, 40 Am. Dec. 568; Anderson v. 
 Coonley, 21 Wend. (N. Y.) 279; Victor, 
 etc., Co. V. Rheinschild. 25 Kan. 534; 
 Bloomer v. Denman, 12 111. 240. 
 
 He has no authority to barter. Hol- 
 brook ii. McCarthy, 61 Cal. 216; Taylor 
 V. Starkey, 59 N. H. 142. 
 
 An agent had authority to sell only for 
 cash. He did sell on credit, and the 
 goods were sent marked C. O. D. The 
 
 carrier delivered the goods without re- 
 ceiving the cash, on the written order of 
 the agent. Held, that the carrier, whO' 
 knew of the authority of the agent to sell, 
 was not affected by the limitation of 
 which he had no notice, and that the 
 mark C. O. D. did not put him on inquiry 
 as a matter of law-. Daylight Burner Co. 
 ■V. Odlin, 51 N. H. 56; s. c, 12 Am. Rep. 
 
 45. 
 
 An agent selling goods only by sample,, 
 and forbidden to receive payment, sold 
 goods on a credit of four mouths. Six 
 days thereafter he drew in his own name 
 for part of the price, which was paid. 
 The money not being paid to the princi- 
 pal, held, that the payment did not pro- 
 tect the purchaser. Butler v. Dorman, 
 68 Mo. 298; s. c, 30 Am. Rep. 795. 
 
 An agent to sell and receive payment 
 has no implied authority to set off a debt 
 owned by him to the purchaser, against 
 the price of the goods. Belton Compress 
 Co. V. Belton Brick Mfg. Co., 64 Tex. _ 
 
 337- 
 
 An agent to sell on credit must not 
 give unreasonable credit. Brown v. 
 Central Land Co., 42 Cal. 257. 
 
 An agent to sell negotiable paper has 
 implied authority to indorse. Merchants' 
 Bank v. Central Bank, i Ga. 418; s. c. , 
 44 Am. Dec. 665. 
 
 Authority to sell may imply power to 
 employ a broker. Northern, etc., R. 
 Co. V. Bastian, 15 Md. 494. 
 
 Authority to sell and convey land does 
 not imply authority to dedicate a part of 
 it to the public. Wirt v. McEnery, 21 
 Fed. R. 233; Gosselin v. Chicago, 103 
 111. 623. But authority to subdivide and 
 lay out land implies power to dedicate 
 land for streets. Wirt v. McEnery, 21 
 Fed. R. 233; Barteau v. West, 23 Wis. 
 416; State V. Atherton, 16 N. H. 203. 
 
 3. McHany v. Schenk, 88 111. 357; 
 Melvin v. Lamar Ins. Co., 80 111. 446; 
 Herring v. Farrell, 74 N. Car. 588. 
 
 A power to collect a mortgage does not 
 authorize an extension of the time of 
 payment. Ritch <i. Smith, 82 N. Y. 627; 
 Hutchings v. Hunger, 41 N. Y. 155. See 
 Gerrish v. Maher, 70 111. 470; Chappel w. 
 Raymond, 20 La. Ann. 277. 
 
 A power to cancel a mortgage and the 
 notes secured thereby, and to take new 
 
 1036 
 
Implied Authority of 
 
 A UTHORITY. 
 
 Particular Agencies. 
 
 cash.i JHe has implied authority to resort to all necessary legal 
 proceedings to enforce collection.** 
 
 Agent to Buy. — An agent to purchase has implied authority to 
 purchase on credit.* 
 
 Agent to Borrow Money. — A power to borrow includes a power 
 to give the ordinary securities.* 
 
 Agent to Loan Money. — A general power to invest money im- 
 plies a power to grant an extension of time.^ 
 
 Agent to Sue. — An agent to prosecute suits has no implied 
 authority to assign a cause of action.^ 
 
 Agent to Manage Real Property. — An agent to rent and care for 
 real property has no implied authority to sue for possession in his 
 own name.'' But a general power of control and supervision over 
 lands extends to after acquired lands,* and includes an authority 
 to bring a suit to restrain a trespass and to execute the necessary 
 injunction bond in the principal's name.* 
 
 17. Construction. — The construction of the written instrument 
 conferring authority is for the court. ^^ 
 
 In construing'written authorities, the rule that writings cannot be 
 
 ■notes and a new mortgage, does not au- 
 thorize the cancellation without taking 
 the renewals. Foster v. Paine, 56 Iowa, 
 ■622. , 
 
 1. Padfield v. Green, 85 111. 529; Rey- 
 nolds V. Ferree, 86 111. 570; Rhine v. 
 Blake, 59 Tex. 240; Rodgers v. Bass, 46 
 Tex. 505; Aultman v. Lee, 43 Iowa, 404: 
 Drain v. Doggett, 41 Iowa, 682; Taylor 
 V. Robinson, 14 Cal. 396; Kirk i/. Hiatt, 
 2 Ind. 322; Wiley v. Mahood, 10 W. Va. 
 206; McCuUoch V. McKee, 16 Pa St. 
 289; Woodbury v. Larned, 5 Minn. 339; 
 Rohinson v. Anderson, 106 Ind. 152; 
 McCormick v. Wood, 72 Ind. 518. See 
 Williams v. Johnson, 92 N. Car. 532. 
 
 Where a bank is an agent to collect, it 
 
 delivery. Boyett v. Braswell, 72 N. Car. 
 260. 
 
 Authority to receive the whole of a 
 debt implies power to receive part. Whe- 
 lan V. Reilley, 61 Mo. 565. 
 
 2. Trowbridge v. Weir, 6 La. Ann. 
 706; McMinn v. Richtmyer, 3 Hill (N. 
 Y.), 236; Scott V. Elmendorf, 12 Johns. 
 (N. Y.) 317; Weille v. U. S.. 7 Ct. of CI. 
 5351 Joyce v. Duplessis, 15 La. Ann. 
 242; s. c, 77 Am. Dec. 185; De Poret v. 
 Gusman, 30 La. Ann. pt. 2, p. 930. 
 
 3. Sprague v. Gillett, 9 Mete. (Mass.) 
 91. See RufEn v. Mebane, 6 Ired. Eq. 
 (N. Car.) 507. 
 
 4. Hatch V. Coddington, 95 U. S. 48. 
 A power to mortgage does not include 
 
 -may receive its certificates of deposit in . a power to give a note in the principal's 
 
 payment. British, etc., Co. v. Tibballs, 
 ■63 Iowa, 468. 
 
 An agent to collect a debt payable in 
 3. particular sort of currency has no 
 power to receive payment in any other 
 kind of currency; and if loss ensues he 
 will be liable, even where the currency he 
 receives is the only currency circulating 
 at the time and place of collection. Man- 
 ,gum V. Ball, 43 Miss. 288. 
 
 An agent to collect a note has no 
 power to sell it. Smith v. Johnson, 71 
 Mo. 382. See Hannon v. Houston, 18 
 Karis. 561. 
 
 An agent to settle an account has im- 
 plied authority to take personal property 
 in settlement. Oliver v. Sterling, 20 
 Ohio St. 391. 
 
 Power to receive certain chattels is no 
 iproof of authority to dispense with their 
 
 name. Mylius v. Copes, 23 Kans. 617 
 Or to insert a clause for the payment of 
 attorney's fees. Pacific, etc.. Co. v. Day- 
 ton, etc., R. Co., 7 Sawy. (U. S. C. Ct.) 
 61; s. c, 5 Fed. Rep. 582. Or to execute 
 a second mortgage. Skaggs v. Murchi- 
 son, 63 1 ^x. 348. 
 
 5. Hurc' V. Marple, 2 III. App. 402. 
 See Kane v. Cortisy, 100 N. Y. 132. 
 
 Power to take a mortgage does not in- 
 clude authority to foreclose it. Aultman 
 ■a. Jones, i Woolw. (U. S. Ct. Ct.) 99. 
 
 6. Geigerw.Bolles,iTh.&C.(N.Y.)i2g. 
 
 ". McHenry v. Painter, 58 Iowa, 365. 
 
 A power to collect rent implies no au- 
 thority to employ an engineer. Crozier 
 V. Reins, 4 111. App. 564. 
 
 8. Berkey v. Judd, 22 Minn. 287. 
 
 9. State V. Banks, 48 Md. 513. 
 
 10. Story Agency (9th Ed.), § 63, n. i. 
 
 1037 
 
Constiuction, 
 
 A UTHORITY—A VAIL ABLE. 
 
 ,1 
 
 Definition, 
 
 varied or contradicted by contemporaneous or prior agreements or 
 transactions pi^evails.^ 
 
 Consequently parol evidence of prior agreements or understand- 
 ings between the parties,'-* or of customs or usages,* is inadmissi- 
 ble to contradict or vary the express terms of the writing. 
 
 Evidence of customs or usages is, however, admissible to explain 
 or interpret such terms.* Written authorities should be Construed 
 in the light of surrounding circumstances.^ General words in the 
 written instrument will be restricted by the context.® 
 
 18. Ambiguity in Instructions. — Where an agent's instructions are 
 ambiguous, and reasonably susceptible of two meanings, an agent 
 will be protected if he adopts one of them in good faith, and acts 
 upon it.'' 
 
 19. Public Agents. — For authority of public agents, see titles 
 Public Agents; Municipal Corporations. 
 
 AUTRE FOIS ACaUIT. See JEOPARDY. 
 AUTRE FOIS CONVICT. See Jeopardy. 
 AVAILABLE. — Capable of being put in execution.^ 
 
 1. Story Agency (gth Ed.), § 76; Frink 
 V. Roe. II Pac. Repr. (Cal.) 820. 
 
 2. Story Agency (gth Ed.), § 76; Logan 
 V. Farnters' Bank, i Houst. (Del.) 35; 
 Peckham v. Lyon, 4 McL. (U.S. C.Ct.)45. 
 
 , 3. Robinson v. Mallet, L. R. 7 H. of 
 L. 802; Foley v. Bell, 6 La. Ann. 760; 
 Ware v. Hay ward Rubber Co., 3 Allen 
 (Mass.), 84;. Allen v. Dykers, 3 Hill (N. 
 Y.),' 593; Taylor v. Ketchutn, 5 Robt. (N. 
 Y.) 507; Barksdale v. Brown, i Nott & 
 McC. (S. Car.) 517; Catlin v. Smith, 24 
 Vt. 85; Boogher v. Maryland Life Ins. 
 Co., 6 Mo. App. 592; Boardman v. 
 Spooner, 13 Allen (Mass.), 353; Dickin- 
 son V. Gay, 7 Allen (Mass.), 29; Dodd v. 
 Farlow, 11 Allen (Mass.), 426; Haskins 
 V Warren, 115 Mass. 514; Story Agency 
 (gth Ed.). § 76. See also note on p. 
 1028, " If the power," etc. 
 
 4. Story Agency (gth Ed.) §§ 77, 78; 
 Wallace v. Bradshaw, 6 Dana (Ky.). 382. 
 See also note on p. 1028, " If the power," 
 etc. 
 
 5. Brantley v. Southern Life Ins. Co., 
 53 Ala. 554; Maynard v. Mercer, loNev. 
 33; Bisseli V. Terry, 6g 111. 184; Wood v. 
 Goodbrige, 6 Cush. (Mass.) 117, 123. 
 
 184; Neal zj. Patten, 40 Ga. 363; Geiger 
 V. BoUes, I Thomp. & C. (N. Y.) 129; 
 Bosseau v. O'Brien, 4 Biss. (U.S. C. Ct.) 
 3g5; Billings v. Morrow, 7 Cal. 171; 
 Meade v. Brothers, 28 Wis. 68g; Berry 
 V. Harnage, 3g Tex. 638; Coquillard v. 
 French, 19 Ind. 274. 
 
 A power of attorney " to buy and sell 
 real estate, and receive and execute all 
 necessary contracts and conveyances," 
 held not to authorize a sale of land be- 
 longing to the principal at the date of ex- 
 ecution of the power. Greve v. Coffin, 
 14 Minn. 345. 
 
 A general = authority to " bargain, 
 sell," etc., not specifying any particular 
 •property, authorizes the agent to sell any 
 real property the principal may own. 
 Marr v. Given, 23 Me. 55; s. c, 39 Am. 
 Dec. 600; Roper v. McFadden, 48 Cal. 
 346; Berkey v. Judd, 22 Minn. 287. 
 
 7. Evans Agency (Ewell's Ed.), p. 149; 
 Story Agency (gth Ed.), § 74; Winne v. 
 Niagara Ins. Co., 91 N. Y. 185; Bessent 
 V. Harris. 63 N. Car. 542; Mattocks v. 
 Young, 66 Me. 459; Minnesota, etc., Co. 
 V. Mqntague, 65 Iowa, 67; Mann v. 
 Laws, 117 Mass. 293; Mech. Bank v. 
 
 6. Evans Agency (Ewell's Ed.), pp. 145//-^ Merch. Bank, 6 Mete. (Mass.) 13; Ire- 
 
 seq. ; Story Agency (gth Ed.), §§ 62 et seq. 
 
 Where a power of attorney is given for 
 a particular purpose, general words are 
 not to be constriled at large, but merely 
 as giving general ppwers for carrying into 
 effect such particular purpose. Rountree 
 V. Denson, 59 Wis. 522. 
 
 Accord see Craighead v Peterson, 
 72 N. Y. 279; Bisseli V. Terry, 69 111. 
 
 land V. Livingstone, L. R. 2 Q. B. 99; L. 
 R. 5 9. B. 516; 5 H. L. 395. 
 
 8. Marks v. Hall, 7 B. & L. 841. 
 
 Available Capital. — This is not a true, 
 but a deceptive, description of capital 
 which may be raised under the borrowing 
 powers conferred upon directors. Venez- 
 uela Co. V. Kisch, L. R. 2 H. L. gg 
 
 Available for Adjudication, in statute — 
 
 1U38 
 
Constructions, 
 
 A VAILS— A VOCA TION—BACK. 
 
 Constructions. 
 
 AVAILS. — This word seems to have been construed only in 
 reference to wills, and in them it means the corpus or proceeds of 
 the estate after the payment of the debts.^ 
 
 AVERMENT. See PLEADING. 
 
 AVOCATION. — A pursuit or calling as the selling of liquors on 
 Sunday, is an avocation for which an information will lie.* 
 
 BACK. (See also ENDORSEMENT.)— In the rear ; remote ; again.* 
 To endorse ; write on the back.* 
 
 These words were inserted to introduce 
 this limitation — that the act of banlcruptcy 
 must be one which would have been 
 available for the making of the particular 
 adjudication. In re Bedell, L. R. 7 Ch. 
 Div. 123. 
 
 Availatle Means includes all that 
 numerous class of securities which are 
 known in the mercantile world as repre- 
 sentatives of value easily convertible into 
 money, but not money. Brigham v. 
 Tillinghast, 13 N. Y. 218; Benedict v. 
 Huntington, 32 N. Y. 224. 
 
 given by the testator, and current in his 
 family and neighborhood, is sufficient to 
 designate the devisee, and why not the 
 subject-matter devised ? " Ryerss u. 
 Wheeler, 22 Wead. (N. Y.) 148; s, i.., 
 Lawson's Usages and Customs, 351. 
 
 Back Again. — Where a stallion was ad- 
 vertised to make his season on the follow- 
 ing terms, ' ' with the privilege of breeding 
 back next season should the mare not 
 prove with foal, the money due at the 
 time of service, or before the mare is re- 
 moved," it was held that while the cus- 
 
 1. Allen V. De Witt, 3 N. Y. 276: Mc- 'tomerhad the right to reput his mare the 
 Naughton v. McNaughton, 34 N. Y. 201., next season if she did not prove in foal 
 
 2. Voglesong v. The State, g Ind. 112. 
 But gaming is not an avocation within 
 
 the prohibition of the Sunday law. State 
 V. Conger, 14 Ind. 3g6, 
 
 3. Sack Lands. — Used as a nickname, 
 or name by reputation, to denote lands in 
 a remote part of the State. A testator 
 made a devise of all his " back lands." 
 In an action of ejectment to recover cer- 
 tain lands under this devise it was held 
 that parol evidence was admissible to 
 designate the premises by showing that 
 certain lands owned by him (the devisee) 
 were called and known by that designa- 
 tion by Tiim, his family, and neighbors. 
 " The term ' back lands,' " say the court, 
 " was, it is true, insufficient of itself to 
 designate any particular class of lands 
 owned by the testator. It was uncertain; 
 and might refer to different objects, or to 
 none upon which any distinctive charac- 
 ter could be fastened by extrinsic proof. 
 "RTitid certum est, quod ccrtum reddi potest. 
 You must in the most accurate descrip- 
 tion go out of the instrument in order to 
 apply it to the subject-matter of the de- 
 -^ vise or grant; and so far as we are able 
 to collect from the evidence, that was ef- 
 fectually done in this case. The prem- 
 ises in question and other lands in the 
 same vicinity were known and called by 
 the testator during his lifetime, and by 
 his family and neighborhood, 'back 
 lands.' This is like a man's making a 
 map of his lands on which he designates 
 certain parcels by certain names, and 
 then devises or conveys them according- 
 ly. A nickname, or name by reputation, 
 
 the first one, it was only provided the 
 horse and mare both lived until next sea- 
 son. The stallion's terms did not 
 amount to a warranty upon the part of 
 his owner that he would live to the next 
 one; and the owner of the mare not prov- 
 ing with foal is liable for the price of the 
 season, although he is deprived of the 
 privilege of breeding back the next sea- 
 son by the death of the horse. Price v. 
 Pepper, 13 Bush (Ky.), 42. 
 
 Backwards. — A policy of insurance on 
 an India voyage out and home containing 
 these words, "forwards and backwards." 
 until the ship's arrival at her»last station 
 of discharge, though it purported literally 
 to be from a foreign port of loadinguntil 
 the ship's arrival in London, beginning 
 the adventure upon the said goods from 
 the loading thereof at the foreign port of 
 loading, must by necessary implication 
 apply to all goods put on board in the 
 course of the voyage. For " forwards 
 and backwards" means from port to port 
 in the course of the voyage, not from 
 Europe to Asia and from Asia to Europe. 
 But were these words omitted, though 
 the insurance was to all or any ports and 
 places whatsoever beyond the Cape of 
 Good Hope, in port and at sea, in all 
 places, at all times, and in all services, 
 with liberty to proceed to, touch, and 
 stay at any ports or places whatsoever 
 for any purpose whatsoever, the policy 
 will attach only on the particular cargo 
 taken in at the first place of loading. 
 Grant v. Paxton. I Taunton. 463. 
 
 4. Backing.— In England, where awar- 
 
 1039 
 
Constructions. 
 
 BAD. 
 
 Constructions. 
 
 BAD. — Wanting good qualities; opposed to good; 
 vicious ; wicked. * 
 
 injurious ; 
 
 rant of a justice of the peace in one 
 county is to be executed in another, it 
 must first be endorsed by the justice in 
 • such other county, which is termed 
 "backing the warrant." 4 Bl. Com. 
 291. 
 
 It prevails also in some of the United 
 States, though the term " backing" is 
 rarely used. See Seabury v. Hungerford, 
 2 Hill (N.Y.), 80, where the endorsement 
 reads "John H. Hungerford, backer." 
 
 1. In an action for slander, where the 
 slanderous words charged are that the 
 plaintiff, a married woman, is a "bad 
 woman," a "bitch," and -"whore," it is 
 for the jury, to determine the sense in 
 which the word " bad" is used; and an in- 
 :struction that for that purpose " the jury 
 may take into account the accompanying 
 words and surrounding facts " is not open 
 to exception. In this case the court 
 said: " In itself the word 'bad' imports 
 no crime, and is not actionable. But the 
 moral and legal quality of the word. 
 ' bad ' may be made entirely clear by 
 its context and the connection in which it 
 is used. If one speaks of a prostitute, 
 .and calls her such, and therefore pro- 
 nounces her a bad woman, or if he says 
 ' she is it bad woman because she is a 
 prostitute,' there can be no doubt of the 
 sense in which the word ' bad ' is used, 
 any more than there can be a doubt of 
 the sense in which it is used if a party 
 says of another, ' she is a bad woman, 
 she does not go to church,' or, 'she. is a 
 bad woman because she does not go to 
 church.' The party is responsible for 
 the ordinaiy and natural meaning of 
 language as it would commonly be under- 
 stood. If the subject of discourse in re- 
 lation to a female is chastity, the use of 
 the word ' bad ' might import the want 
 of conjugal fidelity, if the woman were a 
 married woman; and when the charge 
 against a married woman is that she is a 
 bad woman, a. bitch, and a whore, the 
 court cannot say, as matter of law, that 
 the word 'bad' does not import a want of 
 chastity, but it is for the jury to determine 
 the sense in which the word was used. 
 And we see no objection to the construc- 
 tion as given by the presiding judge; 
 when he uses the phrase, ' the jury may 
 take into account the accompanying 
 words and the surrounding facts,' he is 
 not to be understood as referring to those 
 unexpressed but understood circumstan- 
 ces which give character to the language 
 used, but simply to those facts and cir- 
 .curastances which attend the uttering, 
 
 such as time, place, and words uttered. 
 In setting out the words uttered as ' bad 
 woman,' 'bitch,' and 'whore,' there 
 is no necessity for introducing any col- 
 loquium that these words were used in 
 reference to her chastity, because the jury 
 might be warranted without such collo- 
 quium in finding that the words used, in 
 the connection in which they were used, 
 did of their own force import to the or- 
 dinary hearer the charge of want of 
 chastity, or of the crime of adultery." 
 Riddell v. Thayer, 127 Mass. 487. 
 
 Where a declaration, in an action for 
 slander, alleged that the defendant false- 
 ly and maliciously sai^ of the plaintiff, 
 " She is a bad girl, a very bad girl, and 
 unworthy to be employed by any com- 
 pany in Lowell," meaning thereby that 
 the plaintiff was a prostitute and had 
 been guilty of fornication, lewdness, 
 lasciviousness, and wantonness, it was 
 held that the declaration was insufficient 
 for want of averments and a colloquium 
 that would warrant the innuendo; the 
 court saying: " The words set forth in all 
 the counts were, ' she is a bad girl ' or 
 ' a very bad girl.' There was no aver- 
 ment of other conversation which took 
 place at the same times, nor any aver- 
 ments of other exterior facts wliich, if 
 true, would give a peculiar force and 
 effect to the words used, or show that, 
 though in their natural meaning they did 
 not impute unchaste conduct to the plain- 
 tiff, yet in the connection in which they 
 were used and applied to the plaintiff, 
 they would have that effect. It is true 
 that these words are greatly enlarged and 
 expanded by the innuendoes, but these 
 cannot aid the declaration and make it 
 good." Shell j;. Snow, 13 Mete. (Mass.) 
 278. 
 
 So an action of slander will not lie for 
 saying that a particular article made by 
 another is not a good article, or that it is 
 a "bad" article, or that) goods tr^anu- 
 factured by him are " bad " or are not as 
 good as articles manufactured by his 
 neighbor; for example, 'Tobias watches 
 are bad. They are inferior watches; this 
 watch purchased of them is a bad watch. 
 For said the court: "The words do not 
 directly impeach the integrity, knowledge, 
 skill, diligence, or credit of the plaintiff. 
 They only relate to the''quaUty of the ar- 
 tide which he manufactures or in which 
 he deals." Tobias v. Harland, 4 Wend. 
 (N. Y.) 537; s. c, 8 Wheeler Am. C. L. 
 
 115- 
 The general character and standing of 
 
 1040 
 
Constructions. 
 
 BAD— BADGE. 
 
 Badge of Fraud. 
 
 BADGE.— A sign or mark; used in the expression " badge of 
 fraud." ^ 
 
 a witness as a good or bad man, without 
 reference to his character for truth, is 
 not admissible for the purpose of im- 
 peachmg him. "The term ' bad char- 
 acter ' applied to man or woman is used, 
 by very common acceptation, to desig- 
 nate loose, immoral, or lascivious deport- 
 ment; but who, properly regarding the 
 weight of authorities, will contend that 
 proof of such deportment is admissible 
 to impeach a witness?" Greene, J., in 
 Carter v. Cavenugh, i G. Greene (Iowa), 
 171. 
 
 In an information under a statute 
 which forbid a person licensed to sell 
 excisable liquors by retail to permit and 
 suffer persons of notoriously bad char- 
 acter to assemble and meet together in 
 his house and premises, it was held that 
 prostitutes, as such, are "persons of 
 notoriously bad character " within the 
 meaning of the statute. Parker v. Green, 
 2 B. & S. 299. 
 
 Bad upon the face of it. — "The rule of 
 law is established, that if there be a con- 
 viction good on the face of it, the justice 
 is protected; if the conviction is bad on 
 the face of it, then he is not protected. 
 By the term ' bad upon the face of it ' 
 I mean any conviction which shows a 
 want of jurisdiction, or directs an im- 
 prisonment of a party, which the magis- 
 trate is not entitled to award." There- 
 fore for a conviction ' ' bad upon the face 
 of it" the magistrate is liable to an action 
 of trespass. Griffith v. Harries, 2 M. & 
 W. 335, 344- 
 
 Bad English. — Bad English will not 
 vitiate a bond. Thus in an action of 
 debt upon a. bill, the words were, " I 
 promose to pay ;^ioo if the plaintiff mare 
 such a widow." The defendant demur- 
 red for false English, viz., "promose" 
 and "mare," and judgment on the de- 
 murrer for the plaintiff. Call v. Semaine, 
 1 Freeman, 541. 
 
 So "Bad Latin" is cured by an 
 Anglic}. Dunvell v. Bullock, i Freeman, 
 446. 
 
 1. Among other circumstances relied 
 on to show fraud in the sale under which 
 the plaintiffs claimed was the fact that 
 the sale was upon a long and unusual 
 mercantile credit. The counsel for the 
 defendant asked the court to instruct the 
 jury that if such was the fact " it was a 
 badge of fraud." This was refused, but 
 the court at the same time told them that 
 it was a circumstance to be considered by 
 them in arriving at the question of fraud, 
 
 but was not of itself a badge of fraud. 
 As we understand the meaning of the 
 word "badge" this was error. It does 
 not mean that the evidence must be con- 
 clusive, nor that it must require the jury 
 to find fraud, but only that it is one of 
 the signs or marks of fraud, and has a 
 tendency to show it. There may be. great 
 difference in the weight to which different 
 facts, constituting badges of fraud, are en- 
 titled as evidence. One may be almost 
 conclusive, another furnish merely a rea- 
 sonable inference of fraud. Yet both 
 would be badges of fraud, and either 
 might be so explained by other evidence 
 as to destroy its effect. The books ac- 
 cordingly speak of "strong badges " and 
 "slight badges " of fraud, of " conclusive 
 badges" and "badges not conclusive," 
 meaning by the word "badge" nothing 
 more than that the fact relied on has a 
 tendency to show fraud, but leaving iis 
 greater or less effect to depend on its in- 
 trinsic character. 
 
 Thus in the celebrated Gwynne's Case 
 referred to in Roberts on Fraudulent 
 Conveyances, 545, the fact that the con- 
 veyance contained an express statement 
 that it was made in good faith was held 
 to be a "badge" or sign of fraud. And 
 the reason given is, " that unusual clauses 
 always induce suspicion," showing that 
 circumstances which induce a suspicion 
 of fraud are signs, marks, or, what is the 
 same thing, "badges" of fraud. When, 
 therefore, the court told the jury that the 
 fact that the sale was upon a long and 
 unusual mercantile credit was a circum- 
 stance proper to be considered by them, 
 but was not a "badge" of fraud, it was 
 equivalent to telling them that it had no- 
 tendency to show fraud. So that, al- 
 though they considered it, they could 
 give it no effect. It might well be that 
 an honest sale might be made upon a 
 long and unusual credit. But it is 
 equally true that it might be with any 
 of the usual "badges" of fraud, such as 
 a retention of possession by the vendor, 
 etc. Any sale may be sustained by ex- 
 planatory proof overcoming the infer- 
 ence of fraud which certaiiiJacts taken 
 alone would warrant. And the court 
 should in all cases submit the evidence 
 of fraud to the jury with proper sugges- 
 tions upon this point. But this would 
 not warrant it in instructing them that 
 certain facts which, taken alone, had a 
 tendency to show fraud had no such 
 tendency. Pilling v. Otis, 13 Wis. 495. 
 
 I C. of L.— 67 
 
 1041 
 
Definition. 
 
 BAGGAGE. 
 
 Definition. 
 
 BAGGAGE. (See also Carriers; Innkeepers.) — Whateverthe 
 passenger takes with him for his personal use or convenience ac- 
 cording to the habits or wants of the particular class to which he 
 belongs, either with reference to his immediate necessities or to the 
 ultimate purpose of his journey, must be considered as personal 
 baggage. 1 
 
 1. Macrow v. Great Western Ry. Co., 
 L. R. 6 Q B. 6i2; Van Horn v. Kermit, 
 4 E. D, smith (N. Y.), 453; Hawkins v. 
 Hoffman, 6 Hill (N. Y.), 586; s. c, 51 
 Am. Dec. 44; Bomar v. Maxwell, 9 
 Humph. (Tenn.) 620; s. c, 51 Am. Dec. 
 '682; Coward v. East. -Tenn. R. Co., 16 
 Lea (Tenn.), 225 ; Jordan v. Fall River R. 
 Co., 5 Cush. (MaSs.) 69; Railroad Co. v. 
 Fraloff, 10 Otto (U. S.), 24. 
 
 In Hutchinson on Carriers, § 679, it is 
 said; " It is impossjble to define with ac- 
 curacy what will be considered baggage 
 within the rule of the carrier's liability. 
 It may be said, generally, that by bag- 
 gage we are to understand such articles 
 of personal convenience or necessity a:s 
 are usually carried by passengers for 
 their personal use, and not merchandise 
 or other valuables, although carried in 
 the trunlcs of passengers, which are not, 
 however, designed for any such use, but 
 for other purposes, such as sale and the 
 like. But.it is evident that that which 
 may be convenient or necessary for one 
 person might not be for another, or that 
 which might 'appropriately and properly 
 be classed as baggage upon one journey 
 and for one purpose might not be so for 
 another journey and for another purpose. 
 That which might be necessary for the 
 convenience of a female passenger might 
 not be so for one of the other sex. That 
 which might be a convenience and almost 
 a necessity for a traveller in one condi- 
 tion of life might be superfluous and 
 wholly useless in the case of 'another 
 whose habits and condition in life were 
 wholly different." 
 
 1 In Bomar v. Maxwell, 9 Humph. 
 (Tenn.) 622; s. c, 51 Am. Dec. 682, the 
 court said: " Itis obviously impracticable 
 to prescribe any uniform or very definite 
 rule in respect to what shall be deemed 
 baggage. This must be left to the jiiry 
 to determine in each particular case, from 
 the habits, rank, and condition of the 
 party, the extent and reasonable expen- 
 ses of the journey, together with all the 
 circumstances relevant to the inquiry." . 
 
 In Johnson v. Stone, 11 Humph. 
 (Tenn.) the court said: " It is not practi- 
 cable to state with precise accuracy what 
 shall be included by the term baggage. 
 It certainly includes articles of necessity 
 and personal convenience usually carried 
 
 by passengers for their personal use; and 
 what these may be will very much depend 
 upon the habits, tastes, and resources of 
 the passenger." 
 
 In Railroad Co.z'. Fraloff, 10 Otto (U.S.), 
 24, the defendant in error had brought with 
 her to the United States six trunks, con- 
 taining a large quantity of wearing ap- 
 parel, including many elegant, costly 
 dresses and rare and valuable laces, 
 which she had been accustomed to wear 
 when on visits, and to theatres, dinners,, 
 balls, and receptions. On her railroad 
 passage from Albany to Niagara' Falls 
 one of the trunks was broken and more 
 than two hundred yards of dress lace, 
 valued at $75,000, abstracted. She sued 
 the company and obtained judgment for 
 $10,000. The Supreme Court of the U. 
 S., affirming the judgment, said : " In 
 Hannibal R. Co. v. Swift, 12 Wall. (U. 
 S.) 262, this court, speaking through Mr. 
 Justice Field, said that the contract to 
 carry the person only implies an 
 undertaking to transport such a lim- 
 ited quantity of articles as are ordi- 
 narily taken by travellers for personal use 
 and convenience, such quantity depend- 
 ing, of course, upon the station of the 
 party, the object and length of his jour- 
 ney, and many other considerations." 
 
 In Mauritr v. N. Y., etc., R. Co., 
 21 Am. & Eng. R. R. Cas. 286, Dyer,' 
 J., said: "The question is, what is bag- 
 gage ? The rule on this subject can only 
 be stated in general terms. The ques- 
 tion what articles come within the rule is 
 to be determined by the jury according 
 to the circumstances of the case. Bag- 
 gage, of course, includes wearing-appa- 
 rel, and this is not limited to such appa- 
 rel only as the traveller must necessarily 
 use on his journey. Regard being had 
 to the condition in life of these parties, 
 the plaintiff may recover — if entitled to 
 recover all — for the loss of all such wear- 
 ing-apparel as these people had provided 
 for their personal use, and as it would be 
 necessary or reasonable for them to use 
 after their arrival and settlement in this 
 country. And so I think that cloth not 
 yet made into garments, but which they 
 mSy have procured for manufacture into 
 wearing-apparel, and which they intended 
 to make such use of, to a reasonable 
 amount, may properly be included as 
 
 ,1043 
 
What Constitntea. 
 
 BAGGAGE. 
 
 What Constitutes. 
 
 A passenger is bound to call for, claim, and take away his 
 
 part and' parcel of their wearing-apparel. 
 So, too, these parties had the right to 
 carry as baggage such jewelry and per- 
 sonal ornaments as were appropriate to 
 their wardrobe, rank, and social position, 
 but no further. As to bedding and 
 bed-furnishings not intended for use on 
 the journey, — curtains, table-cloths, and 
 covers, books, pictures, and albums, — 
 they come under the head of household 
 goods, and not personal baggage, and 
 cannot be recovered for, and must be ex- 
 cluded from your consideration, unless 
 you find that the agent of the defendant 
 company, when he sold the tickets, was 
 informed or understood that the baggage 
 which was to be carried with the pas- 
 sengers included articles of this character. 
 Of course, if the defendant was informed 
 that this box containedhousehold goods 
 as well as wearing-apparel, or had good 
 reason to understand and know that such 
 was the fact, and then consented to ac- 
 cept the property as baggage under check, 
 if liable at all, it is liable therefor the 
 same as for wearing-apparel, otherwise 
 not. So, too, the painter's utensils and 
 drawings and the tailor's utensils enu- 
 merated in the list of articles lost cannot 
 be included as baggage; and for the loss 
 of this property the plaintiff is not en- 
 titled to recover unless it is made to ap- 
 . pear that the defendant knew or under- 
 stood that such articles were in the box 
 and accepted them as baggage." 
 
 Where the duly authorized agent of a 
 railroad company receives personal prop- 
 erty to be . transported as baggage, the 
 railroad company must account for such 
 property as baggage, although in strict 
 language it might not be baggage. Chi- 
 cago, etc., R. Co. u. Conklin, 32 Kans. 
 55; Lake Shore, etc., R. Co. v. Foster, 
 104 Ind. 293. 
 
 Obligation to Carry. — Railroad com- 
 pany is not obliged to receive as baggage 
 the trunk of one who does not go by the 
 same train. Graffam v. Boston & Me. 
 R. Co., 67 Me. 234; s. c, 15 Am. Ry. 
 Rep. 372. 
 
 What Constitutes Baggage. — The fol- 
 lowing articles have been held to be prop- 
 erly comprised in the term baggage: 
 
 Clothing. — Duffy v. Thompson, 4 E. 
 D. Smith (N. Y.), 178; Dexter u. Syra- 
 cuse, etc., R. Co., 42 N. Y. 326; s. c, i 
 Am. Rep. 527; Toledo, etc., R. Co. v. 
 Hammond, 33 Ind. 379; s. c., 5 Am. 
 Rep. 221 ; Dibble v. Brown, 12 Ga. 217; 
 Baltimore, etc., Co. v. Smith, 23 Md. 
 402; Munster v. South Eastern R. Co., 
 4 C. B. (N. S.) 676. 
 
 Cloth and materials intended for 
 clothing. Van Horn v. Kermit, 4 E. D. 
 Smith (N. Y.), 453; Duffy v. Thompson, 
 4 E. D. Smith (N. Y.), 178; Mauritz v. 
 N. Y., etc., R. Co., 21 Am. & Eng. R. R. 
 Cas. 286. Compare Dexter v. Syracuse, 
 etc., R. Co., 42 N. Y. 326; s. c, i Am. 
 Rep. 527. 
 
 Rifle, a revolver, two gold chains, 
 two gold rings, and a silver pencil case 
 held baggage. Bruty v. Grand Trunk R. 
 Co., 32 Up. Can., Q. B. 66. 
 
 One Pistol. — Woods v. Devin, 13 
 111. 746; Davis V. Michigan R. Co., 22 
 111.278. Two pistols are not. Chicago, 
 etc., R. Co. V. Collins, 56 111. 212. 
 
 Guns. — When for sporting purposes. 
 Van Horn v. Kermit, 4 E. D. Smith (N. 
 Y.) 454; and see Davis v. Cayuga, etc., 
 R. Co., 10 How. Pr. (N. Y.) 330; Haw- 
 kins V. Hoffman, 6 Hill (N. Y.), 506; 
 s. c, 51 Am. Dec. 44. 
 
 Bedding, where passenger is required 
 to provide it. Hirschsohn v. Hamburg 
 Am. Packet Co. ,2 Jones & Sp. (N.Y.) 521. 
 
 Dressing - case. — Cadwallader v. 
 Grand Trunk R. Co., 9 Low. Can. 169. 
 
 Tools. — In reasonable quantity for a 
 mechanic. Davis v. Cayuga, etc., R. 
 Co., 10 How. Pr. (N. Y.) 330; Porter v. 
 Hildebrand, 14 Pa. St. 129; Kansas City, 
 etc., R. Co. V. Morrison, 23 Am. & Eng. 
 R. R. Cas. 481. 
 
 Opera-glass or Telescope. — Cad- 
 wallader Tj. Grand Trunk R. Co., 9 Low. 
 Can. 169; Toledo, etc., R. Co. v. Ham- 
 mond, 33 Ind. 379; s. c, 5 Am. Rep. 221. 
 
 Price-book used by a drummer. Glea- 
 son V. Goodrich, Trans. Co., 32 Wis. 85; 
 s. c, 14 Am. Rep. 716. 
 
 Books and Manuscripts. — Hopkins 
 V. Westcott,. 6 Blatchf. (C. C.) 64; Doyle 
 ■V. Kiser, 6 Ind. 242; Gleason -O. Good- 
 rich Trans. Co., 32 Wis. 85; s. c , 14 
 Am. Rep. 716. Compare Hannibal, etc., 
 R. Co. V. Swift, 12 Wall. (U. S.) 262. 
 
 Surgical Instruments. — Hannibal, 
 etc., R. Co. V. Swift, 12 Wall. (U.S.) 262. 
 
 Watches and Jewelry. — When in- 
 tended to be worn on the person. Mc- 
 Gill V. Rowland, 3 Pa. St. 451; Torpey 
 V. Williams, 3 Daly (N. Y.), 162; McCor- 
 mick v. Hudson River R. Co., 4 E. D. 
 Smith (N. Y.), 181; N. Y.,etc., R. Co. v. 
 Fraloff, 10 Otto. (U. S.), 24; Jones v. 
 Voorhees, 10 Ohio, 145; Amer. Contract 
 Co. V. Cross, 8 Bush (Ky.), 472; s. c, 
 8 Am. Rep. 471; Coward v. East Tenn. 
 R. Co., l6 Lea (Tenn.), 225; McDougall 
 V. Al/an, 12 Low. Can. 321. Compare 
 Mich. Cent. R, Co. v. Carrow, 73 111. 348. 
 
 Merchandise. — It the fact is disclosed 
 
 1043 
 
What is Not. 
 
 BAGGAGE. 
 
 What is Not. 
 
 baggage within a reasonable time ; if he fails so to do, the carrier 
 
 or articles are so packed that their na- 
 ture is obvious. Minter v. Pacific R. 
 Co., 41 Mo. 503; Stoneman v. Erie R. 
 Co., 52 N. Y. 429; Hellman ». HoUaday, 
 I Woolw. (C. C.) 365. See Sloman v. 
 Railroad, 67 N. Y. 208. 
 
 A Carpet. — Minter !<. Pacific R. Co., 
 41 Mo. 503. 
 
 Money for Expenses. — Dunlap v. 
 International S. Co., 98 Mass. 371; Mer- 
 rill V. Grinnell, 30 N. Y, 594; Weed v. 
 Saratoga R. Co., 19 Wend. (N. Y.) 534; 
 Orange Co. Bank z/. Brown, 9 Wend. 
 (N. Y.)-85; s. t., 24 Am. Dec. 129; Mad 
 River R. Co. v. FuUon, 20 Ohio, 318; 
 Jones V. Voorhees, 10 Ohio, 180; Toledo, 
 etc., R. Co. V. Hammond. 33 Ind. 379; 
 s. c. , 5 Am. Rep. 221; Doyle v. Kiser, 6 
 Ind. 242; Davis v. Michigan Cent. R. 
 Co., 22 in. 278; Bomar v. Maxwell, 9 
 Humph. (Tenn.) 621; s. c, 51 Am. Dec. 
 682; Hatchings v. Western R. Co., 25 
 Ga. 61. 
 
 A reasonable amount of bank bills may 
 be carried in a trunk as baggage. Illi- 
 nois Cent. R. Co. v. Copeland, 24 111. 332. 
 
 What does not Constitute Baggage. — 
 The following articles have been held not 
 to be included in the term '" baggage:" 
 
 Bullion, Plate, Watches, Jewelry, 
 and the like, unless intended to be worn 
 on the person. Steers i'. Liverpool, etc., 
 R. Co., 57 N. Y. i; Nevins v. Bay State 
 Steamboat Co., 4 Bosw. (N. Y.) 225; 
 Michigan, etc., R. Co. v. Carrow, 73 
 111. 348; Cadwallader u. Grand Trunk 
 R. Co., 9 Low. Can. 169; Cincinnati, 
 etc., R. Co. V. Marcus, 38 111. 219; Mis- 
 sissippi Cent. R. Co. v. Kennedy, 41 
 Miss. 671; T'he Ionic, 5 Blatchf. (C. C.) 
 53S. Compare Amer. Contract Co. v. 
 Cross, 8 Bush (Ky.), 472; s. c, 8 Am. 
 Rep. 471; Coward v. East Tenn, R. Co., 
 16 Lea (Tenn.), 225. 
 
 Watches to a large value, packed in a 
 travelling case. Belfast, etc., R. Co. v. 
 Keyes, 9 H. L. 556. 
 
 Samples of Travelling Salesmen. 
 —Hawkins v. Hoffman, 6 Hill (N. Y.), 
 586; s. c, 41 Am. Dec. 767; Scovill v. 
 Griffith, 12 N. Y. 509; Ailing v. Boston, 
 etc., R. Co., 126 Mass. 121; s. c, 30 Am. 
 Rep. 667; Stimson v. Connecticut River 
 R. Co., 98 Mass. 83; Pennsylvania Co. 
 V. Miller, 35 Ohio St. 541; s. c, 35 Am. 
 Rep. 620. 1 
 
 Although samples carried by a passen- 
 ger are not personal baggage, yet if the 
 baggage master, knowing the character 
 of the articles carried, accepts them aS 
 baggage, the carrier is estopped to deny 
 that they were baggage in an action for 
 
 1044 
 
 their loss. Texas, etc.. R.Co. v. Capps, 
 16 Am. & Eng. R. R. Cas. 120. 
 
 Merchandise, if its character is not dis- 
 closed. Blumantie v. Fitchburg R. Co., 
 127 Mass. 322; s. c, 34 Am. Rep. 376; 
 Connolly v. Warren, 106 Mass. 146; s. c, 
 
 8 Am. Rep. 300; Slimson v. Connecticut 
 River R. Co., 98 Mass. 83; Davis v. 
 Cayuga, etc., R. Co., 10 How. Pr. (N. Y.)' 
 332; Chamberlain w. Western Trans. Co., 
 45 Barb. (N. Y.) 2l8; Great Northern R. 
 Co. V. Shepherd, 8 E.xch. 30. Compare- 
 Sloman v. Railroad, 67 N. Y., 208. 
 
 Money. — Except small amounts neces- 
 sary for travelling expenses. Merrill v. 
 Grinnell, 30 N. Y. 594; Grant' z*. Newton, 
 I E. D. Smith (N. Y.). 95; Whitmore v.. 
 Steamer Caroline, 20 Mo. 513; Jordan v. 
 Fall River R. Co., 5 Cush. (Mass.) 69;. 
 Dunlap V. International Steamboat Co., 
 98 Mass. 371; Dibble v. Brown, 12 Ga. 
 217; Davis V. Michigan, etc., R. Co., 22 
 111. 278; Orange Co. Bank v. Brown, 9. 
 W^end. (N. Y.) 85; s. c, 24 Am. Dec. 129; 
 Hickox z/. Naugatuck R. Co., 31 Conn. 
 281; Hutchings v. Western, etc., R. Co., 
 25 Ga. 61; -Phelps v. London, etc., R. 
 Co., 19 C. B. (N. S.) 321; Butcher v. 
 London, etc., R. Co., 16 C. B. 13; Illi- 
 nois, etc., R. Co. v. Copeland, 24 111. 362; 
 Cincinnatij etc., R. Co. v. Marcus, 38 111. 
 219; Weed V. Saratoga, etc., R. Co,, 19 
 Wend. (N. Y.) 534; Bomar v. Maxwell, 
 
 9 Humph. (Tenn.) 620; s. c, 51 Am. Dec. 
 682; Doyle V. Kiser, 6 Ind. 242; First 
 Nat. Bank v. Marietta, etc., R. Co., 20 
 Ohio St. 259; s. c, 5 Am. Rep. 655. 
 
 Money carried for purpose of purchas- 
 ing clothes at place of destination, not 
 baggage. Hickox v. Naugatuck R. Co.,, 
 31 Conn. 281. 
 
 Some cases go so far as to hold that 
 even a small sum 10 meet current travel- 
 ling expenses is not baggage. Davis v. 
 Michigan, etc., R. Co., 22 111. 278; Grant 
 V. Newton, i E. D. Smith (N. Y.), 95. 
 
 Child's Rocking Horse. — Hudston 
 V. Midla:nd R. Co., 36 L. T. R. (Q. B.). 
 213. 
 
 Cloth for a dress intended for a third 
 person. Dexter z/. Syracuse, etc., R. Co., 
 42 N. Y. 326; s. c, I Am. Rep. 527. 
 
 Presents.— The Ionic, 5 Blatch. (U. 
 S.) 538; Nevins v. Bay State Steamboat 
 Co., 4 Bosw. (N. Y.) 225. 
 
 Toys. — Hudston v. Midland, etc., R. 
 Co., 10 Best& S. 504; s. c, L. R. Q. B. 
 366. 
 
 Sacque, Muff, and Napkin Ring car- 
 ried in a trunk. Chicago, etc., R. Co. v. 
 Boyce, 73 111. 510. 
 
 Bedding. — Connolly v. Warren, 106. 
 
What is Not. 
 
 BAGGAGE. 
 
 Practice. 
 
 may deposit the baggage in a safe place and be thereafter liable 
 as warehouseman only.^ 
 
 As regards liability for loss, injury or delay of baggage, see 
 ■Carrier ; Innkeeper. 
 
 Mass. 146; s. c, 8 Am. Rep. 300; Macraw 
 V. Great Western R. Co., L. R. 6 Q. B. 
 •612; Texas, etc., R. Co. v. Ferguson, g 
 Am. & Eng. R. R. Cas. 395. But see 
 Hirschsohn v. Hamburg American Packet 
 Co., 2 Jones & Sp. (N. Y.)52i; Ouimit 
 V. Henshaw, 35 Vt. 605. 
 
 Six pairs of sheets, six pairs of blankets, 
 .and six pairs of quilts carried in a trunk 
 by one who is leaving Canada and trav^ 
 ■elling to London, where he expects to 
 provide himself with a home, are not 
 baggage. Macraw v. Great Western R. 
 Co., L., R. 6 Q. B. 612. Cojtipare Hirsch- 
 sohn V. Hamburg Am. Packet Co., 2 
 Jones & Sp. (N. Y.) 521 ; Ouimit v Hen- 
 shaw, 35 Vt. 605. 
 
 Medicines, Handcuffs, and Locks 
 worth about $20. Bomar v. Maxwell, g 
 Humph. (Tenn.) 620; s. c, 51 Am. Dec. 
 682. 
 
 Engravings. — Nevins v. Bay State 
 Steamboat Co., 4 Bosw. (N. Y.) 225. 
 
 Pencil Sketches of an artist. Myt- 
 ton V. Midland Ry. Co., 28 L.J. Exch. 385. 
 5ee also Mauritz v. N. Y., etc., R. Co., 
 21 Am. & Eng. R. R. Cas. 286, 
 
 Papers of Valde, — Thomas v. Great 
 Western R. Co., 14 Upp. Can. Q. B. 
 389; Phelps V. London, etc., R. Co., 19 
 ■C. B. 321. 
 
 Deeds and Documents required as 
 evidence in a trial. Phelps v. London, 
 .etc., Ry. Co., ig C. B. 321. 
 
 Masonic Regalia. — Nevins v. Bay 
 State S. Co., 4 Bosw. (N. Y.) 225. 
 
 Masquerade Costumes for use by 
 others at a ball. Mich. South. R. Co. v. 
 Oehm, 56 111. 293. 
 
 Property of Other Persons. — Or- 
 dinarily a passenger cannot include in 
 his baggage the effects of other persons. 
 If he does so, a railroad company will not 
 ■be responsible for loss or injury. First 
 National Bank v. Marietta, etc., R. Co., 
 20 Ohio St. 260; s. u., 5 Am. Rep. 655; 
 Weed V. Saratoga, etc., R. Co., 19 Wend. 
 534; Dexter v. Syracuse, etc., R. Co., 42 
 N. Y. 326: s. c, I Am. Rep. 527; Chica- 
 go, etc., R. Co. V. Boyce, 73 111. 510; s. 
 •c., 24 Am. Rep. 268; Mississippi, etc., R. 
 Co. V. Kennedy, 41 Miss. 671; Dunlap v. 
 International Steamboat Co., 98 Mass. 
 
 371; Becker v. Great Eastern R. Co., L. 
 R. 5 Q. B. 241. 
 
 But members of the same family trav- 
 elling together may carry each other's ef- 
 fects. Dexter v. Syracuse, etc., R. Co., 42 
 N. Y. 326; s. c, I Am. Rep. 527; Curtis 
 ■V. Delaware, etc., R. Co., 74 N.Y. 116. 
 
 Practice. — It is a question for the jury 
 to determine what articles of property, as 
 to quantity and value, contained in a 
 passenger's trunk or valise, may be 
 deemed baggage (subject to the power of 
 the court to correct any abuse), and it is 
 improper for the judge to designate by 
 name what articles may be included in 
 the term ' ' baggage" of a traveller. Brock 
 V. Gale, 14 Fla. 523; s. c, 14 Am. Rep. 
 356. See Ouimit v. Henshaw, 35 Vt. 604. 
 
 Question, whether thirty-nine English 
 sovereigns were baggage, left to jury. 
 Fairfax v. New York Central R. Co., 73 
 N. Y, 167. 
 
 What is a reasonable amount of bag- 
 gage is for the jury. Kansas City, etc., 
 R. Co. V. Morrison, 23 Am. & Eng. R. 
 R. Cas. 481. 
 
 1. Mattison v. New York, etc., R. Co., 
 57 N. Y. 552; Chicago, etc., R. Co. v. 
 Fairclough, 52 111. 106; Burnell v. New 
 York, etc., R. Co., 45 N. Y. 184; Bar- 
 tholomew V. St. Louis, etc., R. Co., 53 
 111. 227; Mote V. Chicago, etc., R. Co., 
 27 Iowa, 22; Ross V. Missouri, etc., R. 
 Co., 4 Mo. App. 583: Dinninny v. New 
 York, etc., R. Co., 49 N. Y. 546; Rolh 
 V. Buffalo R. Co., 34 N.Y. 548; Chicago, 
 etc., R. Co. I'. Boyce, 73 111. 510; s. c, 
 24 Am. Rep. 268; Holdridge v. Utica, 
 etc., R. Co., 56 Barb. (N. Y.) 191; Louis- 
 ville, etc., R. Co. V. Mahan, 8 Bush(Ky.), 
 184; Jones V. Norwich Trans. Co., 50 
 Barb. (N.Y.) 193; Penton v. Grand Trunk 
 R. Co., 26 Upp. Can. (Q. B.),367; Pa«^ 
 scheider v. Great Western R. Co., L. R. 
 3 Exch. Div. 153. See Carrier. 
 
 But until the goods are stowed in a 
 place of safety the carrier remains liable. 
 Mote V. Chicago, etc., R. Co., 26 Iowa, 
 22; Bartholomew v. St. Louis, etc., R. 
 Co., 53 111. 227; Chicago, etc., R. Co. 
 V. Fairclough, 52 111. 106; Mattison v. 
 New York, etc., R. Co., 57 N. Y. 522. 
 See Cai^rier. 
 
 1045 
 
INDEX. 
 
 "A" not always a singular term, i. 
 
 A railroad leading to M., i n. [i n. 
 
 A room that is improved and suitable, 
 
 A sea, I n. 
 
 A year's rent, I n. 
 
 Abandonment, i-6. 
 
 Acknowledgment by deserted wife, 169. 
 
 Adverse possession, 295. 
 
 Alien wife, 463. 
 
 Application for land, 6. 
 
 Child, 3. 
 
 Condemning land, proceedings for, 4. 
 
 Contract, 6. 
 
 Definition, i, 2. 
 
 Divests title, 2 n. 
 
 Domicile, 6. 
 
 Easement, 6. 
 
 Fixtures, 6. 
 
 Gift, not an, 2 n. 
 
 Homestead, 6. 
 
 Insurance, 3. 
 
 Intent, i n. 
 
 Invention, 6. 
 
 Land, 4. 
 
 Land warrant, 6. 
 
 Mine, 6. 
 
 Office, 3. 
 
 Partial, 5 n. 
 
 Real property, 2. 
 
 Rights, 3. 
 
 Taxes, payment of, not evidence, 2 n. 
 
 Torts, for, 3. 
 
 Vessel, 2 n. 
 
 Wife, 3. 
 
 Wild animals, 6, 
 Abatement, 6-15. 
 
 Animals, dangerous or diseased, 8. 
 
 At law; practice, 12. 
 
 Bill of revivor, 14. 
 
 Bridge, obstructing navigation, 8. 
 
 Contempt; abatement in chancery does 
 not discharge, 13 n. 
 
 Corporation; abatement suit not 
 abated by death of member, 13 n. 
 
 Criminal actions, pleas in, 11. 
 
 Definition of, 6. 
 
 Disabilities, pleas to, 9, 10. 
 
 Duplicity in plea, 11. 
 
 Duplicity; plea to writ divisible, 11. 
 
 Dwelling-houses dangerous to public 
 health, 7, 8. 
 
 Abatement — Continued. 
 
 Eaves, overhanging, 8. 
 
 Equity, practice in, 13. 
 
 Freehold, of, 14. 
 
 Grand jury, plea to objections to, II. 
 
 Highways, obstructions in, 7. 
 
 Judgment, 11. 
 
 Jurisdiction, plea to, II. 
 
 Legacies, 12. 
 
 Lis pendens, 10. 
 
 Manner of abating, 8. [14 «. 
 
 Marriage of female does not abate suit. 
 
 Mill-dam, 8. 
 
 Misnomer, plea to, 10, 11. 
 
 Navigable waters, obstructions in, 7. 
 
 Noxious manufactory, 7, 8. 
 
 Nuisances, of, 7. 
 
 Overhanging trees, 8 «. 
 
 Pardon, plea to, 11. 
 
 Plea in, g-ii. 
 
 Pleas, requisites of, 11. 
 
 Practice; in equity, 13. 
 
 Practice; at law, 13. 
 
 Revenue law, 14. 
 
 Who may abate, 6. 
 
 Writ, plea to, 10. 
 Abbreviations, 15-21. 
 
 Affidavits, 15. 
 
 Ambiguity caused by, 545 fl. 
 
 Assessments, 16. 
 
 Attorney's bill, 15. r 
 
 Ballots, 15. 
 
 Bills and notes, 18. 
 
 C. O. D., 17. 
 
 Deeds, 15. ' - • 
 
 Evidence to explain, 17. 
 
 Explanation of, 15. <> 
 
 F. O. B. (Free on board), 18. 
 
 I O U, 17. 
 
 Judgment, 18. 
 
 Mechanic's lien; account, 17, 
 
 Misnomer, 20. 
 
 Name, 15, 18, 19, 20. 
 
 Pleadings, 19. 
 
 Protest of note, 17. 
 
 Residence, 20. 
 
 Return of service, 20, 
 
 Stock contract, 17. 
 
 Tax-deed,-i7. 
 
 Wills, 20. 
 Abdicate, 21. 
 
 1047 
 
Abduction. 
 
 INDEX. 
 
 Accession. 
 
 Abduction, 21-25. 
 
 At common law, 22 n. 
 
 Chaste character, 25 n. 
 
 Evidence, 26 n. 
 
 Fraud in taking, 24. 
 
 Girls under sixteen, 22-25. 
 
 Legal charge, in, 22 n. 
 
 " Taking out of possession," 23. 
 
 What is,~2i, 23 n. 
 
 What is not, 22 n. 
 Abetting. See Accessory, 61. 
 Abettor. See Accessory, 61 
 Abeyance, 26, 27. 
 Abide, 27. 
 
 Abide the judgment of the court, 270 n. 
 Abide by an award, 27 n. 
 Abide the decision, 27 n. 
 Ability, 28. 
 Able, 28. 
 Able bodied, 28. 
 Abortion, 28-32. 
 
 Accessories, 30 «., 68 n. 
 
 Common law, at, 28. 
 
 Death of child, 31. 
 
 Definition, 28. 
 
 Evidence, 31. 
 
 Intention, 29. 
 
 Murder, when, 29 n. 
 
 Noxious thing, 29. 
 
 Pregnant, 30. 
 
 Quick with child, 30. 
 About, 32. 
 
 Charter-party, 34. 
 
 Contract, 33, 
 
 Deed, 32. 
 Abscond, 34. 
 Absence, 35-43. 
 
 Civil law, ^41 n. 
 
 Definition, 35. 
 
 Governor, of, 36 n. 
 
 Hearing of, 41. 
 
 Inquiries, 41. 
 
 Judge, of, 36 n. [38 n. 
 
 Marriage, presumption of innocence. 
 
 Presumption; continuance of life, 40. 
 
 Presumption of death, 37. [38 n. 
 
 Presumption of innocence; marriage, 
 
 Presumption of survivorship, 42. 
 
 Survivorship, 42. 
 Absented, 44. 
 Absentee, 44. 
 Absolute, 44. 
 
 Absolute inheritable title, 44 n. 
 Absolute interest, 45. [45 n. 
 
 Absolute purchase of any pew in church. 
 Absolute right, 45 k. , 
 
 Absolute total loss, 45 »., 185 n. 
 Absolutely, 45. 
 Absolutely entitled, 45 ». 
 Absolutely incompatible, 45 n. 
 Absolutely vested, 45 ». 
 Abstract, 45. 
 Abstract of title, 46-49. 
 
 Annuities, 48. 
 
 Abstract of title — Continued. 
 
 Arrangement, 46. 
 
 Attachments, 48. 
 
 Bail bonds, 48. 
 
 Curtesy, ,48. 
 
 Decedent's debts, 48, 
 
 Dedication to public use, 48. 
 
 Deeds; how stated, 47. 
 
 Deeds of trust, 48. 
 
 Definition, 46. 
 
 Dower, 48. 
 
 Easements, 48. 
 
 Execution sales, 47 n. 
 
 Executions, 48. 
 
 Incumbrances, 48. 
 
 Judgments, 48. 
 
 Judicial sales, 47. 
 
 Lease. 48. 
 
 Legacies, 48. 
 
 Liability of examiners, 48. 
 
 Liens, 48. 
 
 Lis pendens, 48. 
 
 Mechanic's liens, 48. 
 
 Miscellaneous liens, 48. 
 
 Mortgages, 48. 
 
 Official bonds, 48. 
 
 Patents, 47. 
 
 Powers, 47. 
 
 Recognizances, 48. 
 
 Special assessments, 48. 
 
 Tax sales, 48. 
 
 Taxes, 48. 
 
 Title by descent, 48. 
 
 Trustee's expenses, 48. 
 
 Vendor's lien, 48. 
 
 Vendor not bound to furnish, 46. 
 
 What should contain, 46. 
 
 Wills, 47. 
 Abuse and misuse, 49. 
 
 Children, 49. 
 
 Corporate privileges, 49, 
 
 Discretion, 49 n. 
 
 Legal process, 49. 
 
 Women, 49. 
 Abut, abutting, 49.. 
 Abutment, 50. 
 Accept, 50. 
 
 Accept and receive, 50 n. 
 Acceptance, what is, 50 n. 
 Accepted, 50. 
 
 What constitutes, 50 n. 
 Access (husband and wife), 50. 
 Accession, 50-61. 
 
 Accident, 56. 
 
 Accounts, 60. 
 
 Act of God, 56. 
 
 Admixture, 52. 
 
 Animals, 51 n., 59 «. 
 
 Boards made from trees, 59 «. 
 
 Buildings, 61. 
 
 Confusion of goods, 54 et seq. 
 
 Cord-wood, 58 «. 
 
 Corn made into whiskey, 58 n. 
 
 Crops, 51 «., 60 n. 
 
 1048 
 
Accession. 
 
 INDEX. 
 
 Accident Insurance. 
 
 Accession — Continued. 
 
 Crops on land held adversely, 52 n. 
 Damages, 59 ». 
 Definition, 50. 
 Dividends,^ 51 n. 
 Execution, 58 n. 
 Fire-wood cut from trees, 59 n. 
 Grain, 56 n. 
 
 Hides made into leather, 58 n. 
 Ice, 51 n. 
 
 Innocent possession, 52. 
 Labor upon materials, 52, 53. 
 Logs, 56 n. 
 Machinery, 56 n. 
 Mortgage, 59 n. 
 Mortgaged goods, 57 «., 58. 
 Plants, 51 »., 60 «. 
 Posts, 58 n. 
 
 Railroad ties, 56"«., 59 n. 
 Rails, 58 n. 
 Replevin, 58 n. 
 Sale is not, 51 k. 
 Shingles, 58 n. 
 Slaves, 51 «. 
 Staves, 58 ». 
 Timber, 58 n. 
 Trees, 51 «. 
 
 Trees into charcoal, 58 ni 
 Trespassers, 52 n. 
 Trust funds, 60. 
 Vis major, 56. 
 Wilful trespasser, 53. 
 Wrongful possession, 52, 
 Accessory, 61-82. 
 
 Abortion, 30 n , 68 n. 
 
 Admiralty, 62 n. 
 
 Affray, 319. 
 
 After the fact, 72. 
 
 Aider and abettor, 62-65. 
 
 Arson, 74 n. 
 
 Arson, innocent agent, 65 n. 
 
 Attachment, wrongful, 63 n. 
 
 Before the fact, 67. 
 
 Before the fact, as principals, 71. 
 
 Bigamy, 64 n. 
 
 Children, 62 «. 
 
 Common purpose, 66. 
 
 Conspiracy, 62 n. 
 
 •Constructive presence, 70. 
 
 Conviction of principal, 72. 
 
 Countermanding the crime, 67 n. 
 
 Crime instigated different from that 
 
 committed, 6g. 
 Crime probable consequence of that 
 
 suggested, 69. 
 Crime suggested committed in another 
 
 way, 69. 
 Definition, 61. 
 Degree of incitement, 68 n. 
 Duress, 62 n. 
 Garner, 62 n. 
 Husband and wife, 64 n. 
 Husband, to rape of wife, 71 n. 
 Innocent agent, 65. 
 
 1049 
 
 Accessory — Continued. 
 
 Insane person, 65 n. 
 
 Instigation countermanded, 69. 
 
 Instigator, 67. 
 
 Intent, 64. 
 
 Intoxicating liquor, 62 n., 63 n. 
 
 Knowledge of proposed crime, 68. 
 
 Larceny, 62 n. 
 
 Misdemeanors; all principals, 63 «., 72. 
 
 Postmaster's false returns, 64 n. 
 
 Presence and participation, 63. 
 
 Rape, 64 n. 
 
 Rape, husband accessory to, 71 n. 
 
 Statutory crimes not expressly men- 
 tioned, 64 n. 
 
 Stolen goods; innocent custodian, 65 ». 
 
 Third person, through medium of, 67 «. 
 
 Trespass, 63 n. 
 Accident, 82-86. 
 
 Agent not liable for, 370, 372 n. 
 
 Animals, 84. 
 
 Confusion of goods, 56. 
 
 Dangerous goods, 85. 
 
 Definition, 82. 
 
 Equity, 85. 
 
 Extent of jurisdiction, 85. 
 
 Fires, 84, 86. 
 
 Horses, 84. 
 
 Ice, 85. 
 
 Inevitable, 175 «. 
 
 Injuries to the person, 83 et seq. 
 
 InsufBcient assets, 86 n. 
 
 Negotiable instruments, 85. 
 
 Railroad, 84. 
 
 Sidewalk, 85. 
 
 Snow, 85. 
 
 Sparks, fire caused by, 84. 
 
 Steam boiler, 84. 
 
 Steam whistle, 84. 
 
 Test of liability, 82. 
 
 Water, 83. 
 
 Wild animals, 84. 
 Accident insurance, 87-93. 
 
 Accidents, what are, 87-90. 
 
 Accidents, what are not, 89. 
 
 Arbitration, 93,- 
 
 Blood-vessel, rupture of, 88 n. 
 
 Change of occupation, 92^. 
 
 Carrier; traveller must comply with 
 
 Damages, 93. [rules, 92a. 
 
 Definition, 87. 
 
 Drowning, 88 n. 
 
 Fits, 88, 
 
 Hernia, 88 n. 
 
 Highwaymen, attacked by, 89 n. 
 
 Insurable interest, 93. 
 
 Limiting liability, 91. 
 
 Notice to company, 92*/. 
 
 Peritonitis, 89. 
 
 Poison, 92a. 
 
 Policy, the, 87. 
 
 Proximate cause, 90. 
 
 Railroad accident, 88 n. 
 
 Recovery over, by company, 93. 
 
Accident Insurance. 
 
 INDEX. 
 
 Accruing.. 
 
 Accident insurance — Continued. 
 
 Remote cause, go. 
 
 Rupture, 88 »., 89 n. 
 
 Spine, injury to, 88 n. 
 
 Suicide, <yib. 
 
 Sunstroke, 89 n. 
 
 Total disability, 92^. [veyance," gaa. 
 " Travelling by public or private con- 
 Accommodating terms, 94. 
 Accomplice. See Accessory. 
 Accord and satisfaction, 94-107. 
 
 Additional security, loi. 
 
 Advantageous to creditors, 96. 
 
 Assumpsit, 888. 
 
 Composition of debts, 100 «. 
 
 Definition, 94. 
 
 False imprisonment, 95 n. 
 
 Fraud, 106. 
 
 Injuries to persons, 98 ». 
 
 Joint creditors, 106. 
 
 Joint makers of note, 106. 
 
 Joint obligors, 103. 
 
 Joint tort-feasors, 105. 
 
 Marriage, promotion of, 96 n. 
 
 Misrepresentations, 106. 
 
 Must be legal, 96. 
 
 New consideration, 99. 
 
 Note for note, 103. 
 
 Note of third person, lOI. 
 
 Note, payment by, 102, 
 
 Part payment, 97, 100. 
 
 Payment by note, 102. 
 
 Payment in property, 99. ' 
 
 Sfeduction, 99 ». 
 
 Stockholder, release of, 104 n. 
 
 Stockholder, withdrawal of, 96 «. 
 
 Stranger cannot make, 97. 
 
 Tender not accepted, 95. 
 
 When set aside, 107. 
 According, 107. [stated, 108-128. 
 
 Account, i'^ Account render; Account 
 
 Agent must keep, 383. 
 
 Agent's power to examine, 367. 
 
 Confusion of goods, 60. 
 
 Definition, 108. 
 
 Open accounts, 109. 
 
 Settled accounts, 109. 
 Account render, 128-135. 
 
 Arbitration, 131. 
 
 Auditors, 131. 
 
 Defence, 131. 
 
 Definition, 128. 
 
 Error, 133. 
 
 Execution, 133. 
 
 Final judgment, 133. 
 
 History, 128. 
 
 Judgment quod computet, 131, 
 
 Legacy, 130 «. 
 
 On what demand account lies, 130. 
 
 Process, 131. 
 
 United States, in, 133 
 
 When account lies, 129. 
 Account stated, 110-128. J[ll4. 
 
 Acknowledgment must be unqualified. 
 
 Account stated — Continued. 
 
 Acquiescence, 115. 
 
 Admissions, 115. 
 
 Agent, 126 n. 
 
 Appraisal. 116 n. 
 
 Assumpsit, 884. 
 
 Award not evidence of, 116 n 
 
 Balance, 124. 
 
 Banks, iii n., 117 «., 124 «,, 12") n. 
 
 Bills and notes, 120. 
 
 Corporation, 116 ». 
 
 Definition, no. 
 
 Duress, 119. 
 
 Equitable claims, 123. 
 
 Executor, 112. 
 
 Falsifying, 128. 
 
 Fraud, 123, 125. 
 
 How stated, 113. 
 
 Husband and wife, 117 ». 
 
 I O U, 120 ». 
 
 Illegal, 123. 
 
 Infants, ni n. 
 
 Insane persons, ill n. 
 
 Interest, 124. 
 
 Letter, by, 121 n. 
 
 Mail, by, 121 n. 
 
 Mistake, 125. 
 
 New promise, 123. 
 
 Opening the account, 125 
 
 Parent and child, 118 ». 
 
 Parties not merchants, 124. [127 n. 
 
 Pass book, in «., 117 k., Ii8«., 124 «., 
 
 Persons not concluded. III ». 
 
 Pleadings, 1I27 n. 
 
 Principles, no 
 
 Public accounts, 112. 
 
 Reasonable time, 121. 
 
 Set-off, 122. 
 
 Silence, when an admission, 116-119. 
 
 Surcharging, 128. 
 
 Third parties, 122. 
 
 To whom stated, 122. 
 
 What amounts to, 113 n. et seq. 
 
 What does not amount to, 115 n, et seq. 
 
 When cannot be opened, 126 n. 
 Accountable, 135. 
 Accountable receipt, 135. 
 Accretion, 136-142. 
 
 Definition, 136. 
 
 Filum aquae, 140 »., 141 n. 
 
 Highways, 138 ». 
 
 In whom title vests, 136. 
 
 Islands, 138. 
 
 Must be slow, 137. 
 
 Reliction, 137. 
 
 Rivers and streams, 137. 
 
 Seaweed, 140. 
 
 Stranded property, 141. 
 
 Wharves, 136 «. 
 Accrue, 142. 
 
 Accrue and occur distinguished, 142 n. 
 Accrued, 142. 
 Accruing, 142. 
 Accruing or owing, 142 n. 
 
 1050 
 
Accumulated surplus. 
 
 INDEX. 
 
 Actions. 
 
 Accumulated surplus, 142. 
 Accuse, accused, 143. 
 Accusiomed, 143. 
 Accustomed way, 143 ». 
 Acknowledgment of deeds, 143-170. 
 Abandonment of wife, 169. 
 Agent, by, 170. 
 Ambiguity, 156. 
 Assignment for creditors, 859. 
 Attorney, by, 170. 
 Bona-fide purchaser, 158. 
 
 By order of court, 170. 
 Certificate of, 147 et seq. 
 
 Clerical errors, 152. 
 
 Conclusiveness of certificate, 147 etseq. 
 
 Construction of certificate, 156. 
 
 Corporation, 159. 
 
 Correction of certificate, 149 et seq. 
 
 Date, mistake in, 153. 
 
 Death, presumption of, 169, 170. 
 
 Defective certificate, bona-fide purchas- 
 
 Definition, 143. [er, 158. 
 
 Description of property, officer cannot 
 
 Divorce, 169. [change, 509 n. 
 
 " Does not wish to retract," 168. 
 
 Dower, 169. 
 
 Duress, 168. 
 
 Equity will not correct, 165. 
 
 Equivalent words, 168 «., 169 ». 
 
 Evidence not admissible to prove es- 
 sential fact, 151. 
 
 Examination of wife, 165. 
 
 Explanation to wife, 167. 
 
 Fraud, 160. 
 ^ Identity of party, 154- 
 
 Impeachment of, 158, 160, 161 «. 
 
 [n another State, 147 ». 
 
 Infants, 161 «. 
 
 Interpreter, 166 »., 168 «. 
 
 Legacy, 170. 
 
 Mandamus to correct, 149. \_et seq. 
 
 Married women. See Wife, infra, 163 
 
 Mistake, 1 50 ^/ seq. 
 
 Name of grantor, 155. 
 
 Negligence, 155. 
 
 Of party must appear, 156. 
 
 Official character of person taking in 
 another State; how shown, 147 «. 
 
 Omission of words, 149 etseq., 168 »., 
 
 Presumption of death, 169, 170. [169 «. 
 
 Presumption of validity, 150 «. 
 
 Redundant words, 152. 
 
 Seal, 157. 
 
 Signature of officer, 156. 
 
 Subsequent acknowledgment, 163. 
 
 Validating statutes, 161. 
 
 Voluntary appearance of wife, 169 «. 
 
 Want of; color of title, 287 «. 
 
 Who may take, 144. 
 
 Who may not take, 145-6. 
 
 Wife, 163 et seq. [l65- 
 
 Wife's, cannot be corrected in equity. 
 
 Wife's, cannot be aided by parol proof. 
 
 Wife cannot impeach, 161 «. [165. 
 
 Acknowledgment of deeds — Continued. 
 Wife "does not wish to retract," 168. 
 Wife; duress, 168. 
 Wife, examination of, 165. 
 Wife, must be explained to, 167. 
 Wife ; subsequent acknowledgment, 163. 
 Wife; voluntary appearance, i6g n. 
 Wife willingly executes, 168. 
 Witness may be substituted for defec- 
 tive certificate, 153. 
 Witness; proof by subscribing, 163. 
 Words, omission of, 149 et seq., 168 «., 
 Words, redundant, 152. [169 ». 
 
 Words, vital, 152. 
 Acquainted, 170. 
 Acquiesced, 171. 
 Acquired, 171. 
 Acquittal, 171. 
 Acquittance, 171. 
 Acquitted, 172. 
 Across, 172. 
 Act, 172. 
 
 Act done (in lease), 173 n. 
 Act in all my business, 173 n. 
 Act in his official capacity, 173 «. 
 Act of Congress, 173 «. 
 Act of God, 173-178. 
 
 Confusion of goods, 56. 
 
 Dangers of the sea, 176 ». 
 
 Definition, 174. 
 
 Drought, 175. 
 
 Fires, 176 ». 
 
 Floods, 174-177. 
 
 From what duties excused, 173. 
 
 Frost, 175-177 ». 
 
 Gale, 175-177. 
 
 Inevitable accident, 175 n. [l74- 
 
 Loss must result from a natural cause. 
 
 Natural cause must be the immediate. 
 
 Negligence, 176. [i75- 
 
 Sickness, 175. 
 
 Storms, 174-177. 
 
 Wind, 175-177. 
 Act of insolvency, 178. 
 Act, or intention (insurance policy), 173 ». 
 Acting as attorney, 178. [der, 128. 
 
 Action on account. See Account ren- 
 Action originally commenced, 717 n. 
 Actions, 178-184 h. 
 
 Account, 128. 
 
 Admiralty, 20i. 
 
 Agency; ratification by suit, 439. 
 
 Alien may bring, 462. 
 
 Alien wife, by, 463. 
 
 Appearance, 182. 
 
 Arbitration discontinues, 184^. 
 
 Assault, for, 783. 
 
 Assent to discontinue, 'iZ^. 
 
 Assignment, 827. 
 
 Assumpsit, 882. 
 
 Attorneys, appearance by, 148. 
 
 Bills and notes, 184a. 
 
 Commencement, 184. 
 
 Consent, 181. 
 
 1051 
 
Actions. 
 
 i-NDEX. 
 
 Advancements, 
 
 Actions — Continued. 
 
 Consolidation, 184a. 
 
 Cumulation, 184?. 
 
 Damages, 179. 
 
 Definition., 178. 
 
 Demand, when required, 181. 
 
 Demand, when not required, 182. 
 
 Discontinuance, 184^. 
 
 Fraud in discontinuance, 184^^. 
 
 Joinder, i84i5. 
 
 Legality, 180. 
 
 Local, 184/. 
 
 Motive, 179. 
 
 Nudum pactum, l'8i. 
 
 Patents, 184a. 
 
 Right must be complete, 180. 
 
 Splitting of, i84f. 
 
 Statutory remedies, 184?. 
 
 Terms of discontinuance, 184^. 
 
 Time of discontinuance, 184^. 
 
 Transitory, 184/. 
 
 When maintainable, 179. 
 
 Wrongdoer, 180. 
 Actual, 184^. [guished,'i84^. 
 
 Actual and constructive fraud distin- 
 Actual and continued change of posses- 
 Actual cash payment, 185 n. [sion, 184^. 
 Actual cash value, 185 n. 
 Actual control, care, or management, 1 87«. 
 Actual cost, 185 «. 
 Actual damages, 187 n. 
 Actual delivery, 184/^. 
 Actual determination, 186 n. 
 Actual market value, 186 n. 
 Actual military service, 186 «. 
 Actual notice, 184 A. 
 Actual occupation, 186 «. 
 Actual ouster, 186 n. 
 Actual possession, 184^. 
 Actual residence, 186 n. 
 Actual seizure, 187 «. 
 Actual settler, 186 n. 
 Actual total loss, 185 «. 
 Actually employed, 187 n. 
 Actually occupied, 187 «. 
 Actually sold, 186 n. 
 Addition, additional, 187. 
 Addition erected to a building, 187 n. 
 Address of letters, 188. 
 Adequate, 189. 
 Adequate cause, 189 «. 
 Adequate crossing, i8g n. 
 Ad filum aquse, 189. 
 Adhering, 190. 
 Adjacent, 190. 
 Adjoining, 190 «., 191. 
 Adjourn, adjournment, 192. 
 Adjournment (arbitration), 709. 
 Adjudged, 192. , 
 
 Administration, 193. [istrator. 
 
 Administrator. 5« Executor and admin- 
 Admiralty, 193-204. 
 
 Action in personam, 202. 
 
 Action in rem, 201. 
 
 Admiralty — Continued. 
 
 Action pending, 203. 
 
 Affidavit, proctor may make, 308 n. 
 
 Appraisement, 635. 
 
 Bridges, jurisdiction over, 196. 
 
 Conspiracy to plunder wreck, 62 n. 
 
 Contracts not maritime, 198. 
 
 Contracts within jurisdiction, 197. 
 
 Courts having jurisdiction, 200. 
 
 Decree, 203. 
 
 Evidence, 203. [196. 
 
 Foreign waters; admiralty jurisdiction, 
 
 History of, 193. 
 
 Internal commerce; jurisdiction, 195. 
 ■ Joinder of actions, 202. 
 
 Jurisdiction, exclusive, 200. 
 
 Jfurisdiction of colonial courts, 194. 
 
 Jurisdiction of U. S. courts, 194. 
 
 Jurisdiction over bridges, 196. 
 
 Jurisdiction over contracts, 197-9. 
 " Jurisdiction over foreign waters, 196. 
 
 Jurisdiction over internal commerce. 
 
 Jurisdiction over torts, 195-199. [195. 
 
 Jurisdiction over what persons, 196. 
 
 Jurisdiction over what vessels, 196. 
 
 Jurisdiction over what waters, 194. 
 
 Jurisdiction, scope of, 197. 
 
 Maritime lien, 200. 
 
 Partnership accounts, 19S. 
 
 Pleadings, 203. 
 
 Prize causes, 200. 
 
 Procedure in, 201. 
 
 Restraint of lower courts, 204. 
 
 Set-ofi and recoupment, 203. , 
 
 Torts as affected by place, jurisdiction 
 over, 195. 
 
 Torts within jurisdiction, igg. 
 
 Trial, 203. 
 Admixture, accession, 52. 
 Adoption of children, 204. 
 
 Definition, 204. 
 
 Descent, 205. 
 
 Inheritance, 205-6. 
 
 Services, 207. 
 
 Status, 205. 
 Adult, 207. 
 
 Adulteration of food, 207-210. 
 Adultery, when not a matter of divorce. 
 
 At common law, 209. [209-216. 
 
 Cohabitation, 211 «. 
 
 Consent not essential, 213. 
 
 Evidence, 214. 1 
 
 Former conviction, 216. 
 
 Ignorance of marriage no excuse, ZlOn. 
 
 Living in, 212. 
 
 Marriage, proof of, 214. 
 
 Practice, 216. 
 
 Religious or social usage, 213. 
 
 Solicitation to commit, 213. 
 
 Who may commit, 210 «., 211. 
 Advancemertts, 216-224. 
 
 Annuity, 217. 
 
 By parol; adverse possession, 281 n. 
 
 Definition, 216. 
 
 1053 
 
Advancements. 
 
 INDEX. 
 
 Adverse Possession. 
 
 Advancements — Continued. 
 
 Donor divests himself of title, 223. 
 
 Gift, 217-223. 
 
 Illegitimate children, 221 n. 
 
 Interest, 222. 
 
 Lapse of time, 224. 
 
 Life insurance, 217. 
 
 Not part of estate, 223. 
 
 Of what may consist, 217. 
 
 Presumptions as to, 218. 
 
 Statutes and their construction, 220. 
 
 When value computed, 222. 
 ' Advances, 224. 
 Adverse interest; agency, 372. 
 Adverse possession, 225-305. 
 
 Abandonment, 266 n., 295 [287 n. 
 
 Acknowledgment of deed, absence of. 
 
 Action for rent received, 295 n. 
 
 Actual, must be, 252. 
 
 Actual occupation, i85 n. 
 
 Actual ouster, 186 n. 
 
 Actual possession defined, 254 et seq. 
 
 Actual residence, 186 n. 
 
 Administrator, 242 n. 
 
 Administrator's sale, 277 n. 
 
 Agent, 244. 
 
 Agent, deed by, assumed, 277 n. 
 
 Agent, fraud of, 245 ». 
 
 Agent, possession by, 256 n. 
 
 Ambiguous descriptions, 291. 
 
 Ancient deed, 277 n. 
 
 Assessment lease, 240 n. 
 
 Assignment of homestead, 278 n. 
 
 Assumpsit, 883 n. 
 
 Attorney and client, 245 n. 
 
 Bequest, 277 n. 
 
 Betterments, 294. 
 
 Boundaries, 248. 
 
 Breach of peace, 227 n. 
 
 Burying-ground, 257 «. 
 
 Character of land regulates, 255, 263. 
 
 Claim of title, 292. 
 
 Color of title, 276-292, 
 
 Color of title, without, 292. 
 
 Computation of time, 267 n. 
 
 Condemnation of land, void, 27S n. 
 
 Conflicting titles, 289. 
 
 Constructive possession, 228 »., 262. 
 
 Constructive trusts, 242, 
 
 Contiguous, must be, 265. \ 
 
 Conveyance by co-tenant, 234. 
 
 Corporations cannot tack, 271 n. 
 
 Co-tenants, 232. 
 
 Crops on, belong to holder, 52 n. 
 
 Cultivation, 259. 
 
 Curtesy, 229 «., 237 n. 
 
 Dedication, 226 n. 
 
 Deed by sheriff, 237 n. 
 
 Deed, invalid, 285. 
 
 Deed, lost, 283. 
 
 Deed not recorded, 283. 
 
 Deed of one out of possession, 278 n. 
 
 Defective title, '285-291. 
 
 Definition, 225. 
 
 1053 
 
 Adverse Possession — Continued, 
 
 Descent, 277 n. 
 
 Dower, 237 n. 
 
 Easements, 297. 
 
 Effect, 301. 
 
 Entry of legal owner, 274. 
 
 Essentials, 228. 
 
 Estoppel, 253 n. 
 
 Evidence, 303. 
 
 Exclusive, 228 «., 261. 
 
 Executory contract, 229. 
 
 Executory contract as against third 
 
 party, 232. [278 n. 
 
 Executory contract not color of title, 
 Executory contract; presumption of 
 
 payment, 232 n. 
 Executory contract; vendee paying 
 
 purchase-money, 230. 
 Extent of possession, 290. 
 Fences, 248, 257 «., 259-261. 
 Fraud, 233 n., 292. 
 Fraud not presumed, 279. 
 Gift, 280. 
 Good faith, 277. 
 Government, title in, 267 n. 
 Grant, 300 n. 
 
 Grant, conflicting, 288 n., 289. 
 Grantor and grantee, 247. 
 Grass, cutting of, 258 n. 
 Guardian's deed, 277 n. 
 Higher title, recognition of, 229. 
 Highways, 297. 
 Hostile, 228, 264 n. 
 Husband and wife, 250, 257 «. , 268 n.y 
 
 2702., 277 «., 278 «., 287 «. 
 Husband's curtesy, 229 n. 
 Improvements, 294. 
 Inclosures (see Fences, infrd),2^g et seq. 
 Infant, deed of, 286 n. 
 Intent, 227, 263 «., 286. 
 Interference of title, 288. 
 Interruption, 240 «., 271. 
 Invalid title, 285, 291. 
 Judicial sale, 247 ». 
 Landlord and tenant, 238. 
 Lease for life, 237 n. 
 Legal owner, entry of, 274. 
 Life estate, 237, 277 «., 278 ». 
 Lost deed, 283. 
 
 May not hold adversely to all, 276. 
 Millpond, 255 n. 
 Millpond, bottom of, 251. 
 Mines, 296. 
 Mistake, 281-2. 
 
 Mortgagor and mortgagee, 245. 
 Municipal corporations, 300. 
 Notice, 235 n., 240 «., 264. 
 Notorious, 261. 
 Notorious, what is, 228 n. 
 Occasional use not sufficient, 258. 
 Open, definition of, 228 n. 
 Ouster, 232, 233. 
 Parent and child, 252 n., 282 ». 
 Parol, advancement by, 281 ». - ' 
 
Adverse Possession. 
 
 INDEX. 
 
 After Verdict. 
 
 Adverse Possession — Continued. 
 Parol agreement, 278 n., 279. 
 Parol agreement; possession, 293 n. 
 Parol sale, 236 ». 
 Partition, 233 «., 278 n. 
 Payment of taxes, 284. 
 Pendente-lite purchaser, 247. 
 Permissive entry, 251. 
 Pre-emption claim, 278 n. 
 Presumption of payment under execu- 
 Public lanas,298-9. [tory contract,232 n. 
 Purchase by adverse holder, 275. 
 Purchase-money; executory contract, 
 Purchaser from trustee, 244. [230,23O». 
 Quarry, 296 ». 
 Railroad. 290 n. 
 Railroad in street, 298 n. 
 Remainder-man, 237. 
 Rent received, action for, 295 n. 
 Resulting trusts, 243. 
 Right of way, 297. 
 Seal, deed without, 277 n. 
 Secret, must not be, 228, 262 «., 263 n. 
 Secret trust, 242».,252 n., 2$4n.,2<)2 n. 
 Sheriff's deed, 237 n. 
 Sidewalk, 258 n. 
 
 Street, 297. [290 n. 
 
 Street, extent of railroad's possession, 
 Sub-purchaser may acquire, 230 n. 
 Subservient land claimed under de- 
 fective title, 2gi. 
 I Sub-tenant, 240 n. 
 
 Superior title, offer to buy, 273, 
 
 Survey, record of, 378 n. 
 
 Tacking, 269. 
 
 Tacking, fraud in, 292 n. 
 
 Tax certificate, 278 n. 
 
 Tax deed, 284. 
 
 Tax, payment of, 261, 284. 
 
 Tax title; purchase by tenant, 240 n. 
 
 Tenant cannot interrupt, 240 n. 
 
 Tenant by sufferance, 240 n. 
 
 Tenants in common, 232. 
 
 Time, computation of, 267 n. 
 
 Title, conflicting, 289. 
 
 Title, interference of, 288. 
 
 Tortious, when, 279 n. 
 
 Trees ; occasional cutting, 258 n. 
 
 Trusts, 240. 
 
 Two seisins cannot exist, 262 n. 
 
 User, 226. 
 
 Vendor and vendee, 247, 
 
 Visible, must be, 261. 
 
 Void bond tor title, 277 n. 
 
 Void decree, 277 n. 
 
 Void judgment, 278 n. 
 
 Void patent, 277 n. 
 
 Void statute, 278 n. 
 
 Waters, 296. 
 
 Water, flowing land with, 257 n. 
 
 Water, use of, 258 n. 
 
 Wife's acknowledgment want of, 287 «. 
 
 Wild land, 263. 
 
 Will, 277 «., 287 n. 
 
 Adverse Possession — Continued. 
 
 Without color of title, 292. 
 
 Wood-pile does not give, 258 n. 
 Advertisements, 306. 
 
 Appeal, notice of, 622 n. 
 
 Public sales, 306 n. 
 Advice, 307. 
 
 Aider and abettor, 64. 
 Affected, 307. 
 Affidavits, 307-315. 
 
 Abbreviations in, 15. 
 
 Agent may make, 308. 
 
 Amendment, 314. 
 
 Arrest, 721. 
 
 Attachment, 901. 
 
 Attorney, 308, 309. 
 
 Authentication, 312. 
 
 Certain in substance, 312. 
 
 Convict cannot make, 308. 
 
 Corporations; who should make, 308 i 
 
 Definition, 307. 
 
 Erasures, 314. 
 
 Evidence, as, 314. 
 
 Husband and wife, 308 n. 
 
 Infant cannot make, 308. 
 
 Insane person cannot make, '308. 
 
 Interlineations, 314. 
 
 Jurat, 3-1 1. 
 
 Language, immaterial in what, 314 
 
 Notaries; power to take, 310. 
 
 Perjury, 310. 
 
 Requisites, 310. , 
 
 Scandalous matter, 314. 
 
 Seal to jurat, 312. 
 
 Signature, 311. 
 
 Stale, 315. 
 
 Sufficiency, 312. 
 
 Title, 310. 
 
 Use of, 314. 
 
 Venue, 311. 
 
 Who cannot make, 308. 
 
 Who may make, 307. 
 
 Who may take, 309. 
 Affinity, 315. 
 Affirmance, 315. 
 Affray, 315-319. 
 
 Accessories, 319. 
 
 Definition, 315. 
 
 Prevention of, 316 n. 
 
 Public place, what is, 318 n. 
 
 What is, 317. 
 Afore, 319. 
 Aforesaid, 319. 
 Aforethought, 321. 
 Afoul, 321. 
 After, 321. 
 
 After conviction, 322 n. 
 After judgnient, 322 n. 
 After the date, 323 n. 
 After the fact, accessory, 72. 
 After the fact committed, 322 «. 
 After the passing or passage, 324 n. 
 After the payment, 323 n. 
 After verdict, 322 n. 
 
 1054 
 
After Work. 
 
 INDEX. 
 
 Agency. 
 
 After work, 323 n. 
 
 Afternoon, 324^ 
 
 Afterward, afterwards, 324. 
 
 Against, 325. 
 
 Against her will, 3^5 n. 
 
 Against law, 326 n. 
 
 Against the form of the statute, 325 n. 
 
 Against the peace of the State, 325 n. 
 
 Age, 326-330. 
 
 Computation of, 327. 
 
 Criminal law, 327. 
 
 Definition, 326. 
 
 Evidence of, 327 n. 
 
 False pretences, 329. 
 
 Nuisance, 330. 
 Agency (see Authority), 331-448. • 
 
 Account of receipts and disbursements, 
 
 Account stated, 126 n. [382. 
 
 Accounts, agent must keep, 383. [367. 
 
 Accounts, agent's power to examine. 
 
 Accounts; sub-agent to agent, 395. 
 
 Accidents; agent not liable, 370, 372 n. 
 
 Acknowledgment of deeds, 170. 
 
 Advances by agent; indemnification, 
 
 Adverse interest, 335, 372. [399- 
 
 Adverse possession, 244. 
 
 Adverse possession; fraud of agent. 
 
 Affidavits, 308. [245 n. 
 
 Agency must exist, 415. 
 
 Agent acting in own name, 402. 
 
 Agent cannot act for both parties, 380. 
 
 Agent contracting in own name, 415, 
 416. [376. 
 
 Agent may buy direct from principal, 
 
 Agent m-ust add his name to signature, 
 
 ' 39'3- 
 Agent to buy may not buy for himself. 
 Agent's right of suit, 429. [37^. 
 
 Aliens, 333, 334, 335 n. 
 Alteration of instruments, 497 et seq. 
 Ambiguous authority, 351. 
 Ambiguous contract, 409. 
 Ambiguous instruments ; signature, 391. 
 Appeal; neglect to file power, 622 «. 
 Appointment, 336. 
 
 By corporations, 338. 
 
 By direct instructions, 343. 
 
 By implication, 340-342. 
 
 By parol, 339. 
 
 Form of, 336. 
 
 Limited by usagei, 347. 
 
 Must be distinct, 344. 
 
 Parties bound by implication, 345. 
 
 Under seal, 337. 
 Arbitration, 652, 673. 
 As held out to the world, 353. 
 Assignment for creditors, 859. 
 Attorney, 378 n. 
 Authority, agent exceeding, 415. 
 Authority, cannot delegate, 368. 
 Authority, duty to observe terms of. 
 Authority to fill in blanks, 337. [369. 
 Bank; certifying checks, 341 ». 
 Bank; liability for failure, 385 n. 
 
 1055 
 
 Agency — Continued. 
 
 Bank; notice to directors, 422. 
 
 Bankruptcy revokes agency, 448. 
 
 Bill of lading; fraud of agent, 412 n. 
 
 Bills and notes, 362. 
 
 Bills and notes; agent's possession im- 
 plies power to collect, 341 n. 
 
 Bills and notes; indorsement, 342 n. 
 
 Bills and notes; signature by agent, 388. 
 
 Blanks, power to fill, 337. 
 
 Business, power to conduct, 363. 
 
 C. O. D., 350 ». 
 
 Carrier, power to ship by, 361. 
 
 Chattel mortgage; mortgagee an agent. 
 340 72. — contra, 346 n. 
 
 Checks, certifying, 341 n. 
 
 Classes of agents, 347. 
 
 Collections, 355-360. 
 
 Collusion to defraud, 423. 
 
 Color of title, 277 ». 
 
 Commissions. See Payment, infra. 
 
 Compensation. See Payment, infra. 
 
 Compensation of sub-agent, 395, 
 
 Confusion of goods, 61 n. 
 
 Consent of both principals, 381. 
 
 Consideration; power irrevocable, 446. 
 
 Contract effective in agent's name, 406. 
 
 Contract for sale of land, 338, 343 n. 
 
 Contract, power to perform, 367. 
 
 Contract, principal may sue on, 423. 
 
 Control, agent in, 407. 
 
 Conveyance, power to make, 360. 
 
 Corporate seal to explain signature, 390. 
 
 Corporation agent, how appointed, 338. 
 
 Corporation; malicious act of agent, 
 412 n. 
 
 Corporation; notice to agent, 421-2. 
 
 Corporation, ofiScers of, 373. 
 
 Corporation, ratification by, 339, «., 
 432 n., 438 n. 
 
 Corporation; ultra vires, 431 «. 
 
 Corporations, 334, 336 n., 341 »., 345 n. 
 
 Credit, agent pledging his own, 403. 
 
 Credit, agent's power to obtain, 366. 
 
 Credit given to agent, 416. 
 
 Credit, sales on, 360. 
 
 Coupled with an interest, 336 n. 
 
 Death revokes power, 446. 
 
 Deceit of agent, 417, 41S. 
 
 Declarations of agent, 351. 
 
 Dedication, 361. 
 
 Deed by assumed agent, 277 n. 
 
 Deed on record, knowledge not pre- 
 sumed, 433 n. , 
 
 Deed, power to execute, 360. 
 
 Deed, ratification of, 436 «., 437 n. 
 
 Deed; "sell" in power authorizes con- 
 veyance, 346 n. [386. 
 
 Deed, signing, by agent, 337 «., 338, 
 
 Del credere commission, 396. 
 
 Demand by principal, 383. 
 
 Direct instructions, 343. 
 
 Disabilities, 334. 
 
 Disavowal, 434, 439, 442. 
 
Agency. 
 
 INDEX. 
 
 Agency. 
 
 Agency — Continued. 
 Drunkards, 334. 
 Duress, 405 n. 
 Duties of agents, 368-384. 
 
 To perform duties undertaken, 368. 
 
 To act in name of principal, 368. 
 
 To act in person, 368. * 
 
 To observe terms of authority, 369. 
 
 Power of substitution, 369. 
 
 To obey instructions, 369. 
 
 To conform to usage, 371. 
 
 To use ordinary skill, 371. 
 
 To use ordinary diligence, 371. 
 
 To make full disclosure of adverse 
 interest, 372. 
 
 Same rule as to officers of corpora- 
 tions, 373. , 
 
 Fiduciary relations, 375. 
 
 Purchasing agent may not buy his 
 own property, 375. 
 
 Selling agent cannot buy himself, 375. 
 
 But may buy direct from principal, 
 376. [self, 378. 
 
 Agent to buy may not buy for him- 
 
 AU profits belong to principal, 379. 
 
 Cannot act for both parties, 380. 
 
 Except by consent, 381. 
 
 After termination of agency, 382. 
 
 Must render full accounts, 382. 
 
 And keep regular accounts, 383. 
 
 Demand necessary, 383. 
 
 Interest on accounts, 384. 
 
 To keep goods of principal separate 
 from his own, 384. 
 Duties of principal to agent, 396-400. 
 
 Compensation of agent, 396. 
 
 Salary or commission, 396. 
 
 Del credere commission, 396. 
 
 May be fixed by jury, 397. 
 
 After termination of agency, 397, 
 
 For illegal services, 397. 
 
 When not entitled to, 397. 
 
 Agency prematurely ended, 399. 
 
 Agent indemnified for expenses, 399. 
 Emergencies, 370, 371. 
 Entire act; ratification, 434. 
 Equitable title, 338. 
 Equities, 425. 
 
 Equivocal character of agent, 427. 
 Error of judgment, 351 «., 398 ». 
 Escrow, 352 n. 
 
 Executor cannot buy trust land, 376 ». 
 Existence of principal, 432. 
 Express Co., collections by, 430 ». 
 Facts must be distinct, 344. 
 Feme covert, 334. 
 Fiduciary relations, 375. 
 Foreign principal, 404. 
 Forgery, 342 «., 352 n. 
 Forgery, ratification of, 431 «., 432 n. 
 Form of ratification, 435. 
 Former employment, 342. 
 Fraud, 423, 425. 
 Fraud; agent's liability, 407. 
 
 1056 
 
 Agency — Continued. 
 
 Fraud; principal's liability, 417, 418. 
 Fraud ; pi'in(;ipal may follow property, 
 
 427. 
 Fraud; subscriptions to stock, 412 n. 
 General and special agents, 348-368. 
 Universal agents, 349. 
 How principal bound, 350, 351. 
 Instances: 
 
 Power to sell; to collect, 355. 
 
 Power to collect, 357. 
 
 Power to sell; to warrant, 358. 
 
 Agent to sell may rescind sale. 359. 
 
 Power to sell; miscellaneous re-.; 
 strictions, 359. [362. 
 
 •Miscellaneous powers; restrictions, 
 
 Power to sell or issue negotiable 
 paper, 362. 
 
 Power to conduct business, 363. 
 
 Power to employ. 364. 
 
 Power to provide surgical aid, 364. 
 
 Power to manage property, 365. 
 
 Power to control real estate, 366. 
 
 Power to use principal's credit. 366. 
 
 Power to loan and borrow, 366. 
 
 Power to mortgage, 366. 
 
 Power to settle, 367. 
 
 Power to perform contracts, 367. 
 Gift to agent, 378 n. 
 Goods must be kept separate, 384. 
 Husband and wife, 334 «. , 335 «., 343 
 
 ?/., 344 n.. 345 n., 352 n., 426 n. 
 Idiot cannot act, 334. 
 Illegal acts, 370. 
 Illegal act; innocent agent, 400. 
 Illegal act of public agents, 431 \. 
 Illegal sale; principal may follow 
 
 property, 427. 
 Illegal services, 397. 
 Immoral act, 370. 
 Implication, by, 340, 345. 
 Implied ratification, 437. 
 Implied revocation, 444. 
 Indorsement of note, 342 n. 
 Infant may be agent, 333, 334. 
 Innkeeper's clerk, 342 n. 
 Innocent' agent not accessory, 65. 
 Insane persons, 334. 
 Insanity revokes agency, 448. 
 Instructions, 343, 369. 
 Instruments under seal; signature, 385. 
 Intent as to signature, 387. 
 Intent in ratification, 438. 
 Interest, 384. [446. 
 
 Interest in subject-matter irrevocable. 
 Interest, power coupled with, 445. 
 Intoxicating liquor, 412 n. 
 Irrevocable power may be revoked, 445. 
 Irrevocable when conferred for a con- 
 Joint agents, 335. [sideration, 446. 
 Joint principals, 334. 
 Knowledge of all facts, 432. 
 Knowledge of extrinsic fact-s, 353. 
 Land, power to sell, 360. 
 
Agenoj. 
 
 INDEX. 
 
 Agency. 
 
 Agency — Continued. 
 
 Landlord and tenant, 345 «. [-408. 
 Liabilities of agent to third parties, 401 
 
 Acting in name of principal, 401. 
 
 Acting in own name, 402. 
 
 Pledge of own credit, 403. 
 
 Public officers, 404. 
 
 Foreign principals, 404. 
 
 Mispaid money, 405. 
 
 Contract only effective in agent's 
 
 Negligence, 406. [name, 406. 
 
 Misfeasance, 407. 
 
 Control of work, 407. 
 
 Fraud and malice, 407. 
 
 Torts of employees, 408. [410-419. 
 Liability of principal to third parties, 
 
 All acts of agent, 410. [415. 
 
 Existence of agency must be proved. 
 
 When agent exceeds authority, 415. 
 
 When agent contracts in his own 
 name, 415. 
 
 Exclusive credit given to agent, 416. 
 
 Fraud and deceit, 417, 418. 
 
 Negligence, 419. 
 Lien of agent, 428. 
 Limitation, termination by, 443. 
 Loans, 366. 
 Lobbyist, 370 ». 
 Lunacy revokes agency, 447. 
 Lunatic cannot act, 334. 
 Malice, 407. 
 
 Marriage, revocation by, 448. 
 Married woman may be agent, 333, 334. 
 Miscellaneous powers, 362. 
 Misfeasance, 407. 
 Mispaid money, 405, 427. 
 Mistake, money paid by, 405, 427. 
 Money of principal, 384. 
 Mortgage, 357 »., 360, 366. 
 Mortgage sale, 376 »., 377 n. 
 Naked power revocable, 445. 
 Name, agent acting in own, 402. 
 Name, agent must add his, to signature, 
 
 393- [431- 
 
 Name of principal, act must be done in, 
 Name of principal in instrument signed 
 
 by agent, 389. 
 Negligence, 352 n., 371, 406, 411 »., 
 
 413 »., 414 »., 419. 
 Negotiable paper. See Bills and notes, 
 
 infra, 362. 
 Notice to agent, 419-423. 
 
 In case of corporations, 421. 
 
 Scope of employment, 421. 
 
 To whom notice must be given for a 
 corporation, 422. 
 
 When notice must have been re- 
 ceived, 422. 
 
 Where agent colludes with third 
 party, 423. [442. 
 
 Notice of another agent of principal, 
 Notice; revocation, 448. 
 Nuisance, 438 «. 
 Official. See Public Agents, infra. 
 
 Agency — Continued. 
 
 Ordinary diligence, 371. 
 
 Parent and child, 335 »., 340 »., 345 ». 
 
 Parol appointment, 339. 
 
 Parties bound by implication, 345. 
 
 Partnership, 338. [432 ». 
 
 Partnership, ratification by new firm. 
 
 Partnership, revocation by dissolution. 
 
 Payment of agent, 396. [448. 
 
 Payment agency prematurely ended, 
 
 399- 
 Payment; error of judgment, 398 n. 
 Payment; illegal services, 397, 400. 
 Payment of sub-agent, 395. 
 Payment; termination of agency, 397. 
 Payment; unfaithful agent, 397. 
 Payment; when for the jury, 397. 
 Physician, employment of, 353, 364. 
 Possession of goods, 356. 
 Power to borrow, 366. 
 Power to collect, 355-360. 
 Power as to contract, 367. 
 Power to employ, 364. 
 Power to examine accounts, 367. 
 Power to loan, 366. 
 Power to manage property, 365, 366. 
 Power to mortgage, 366. 
 Power to obtain credit, 366. 
 Power to sell, 355-360. 
 Power to settle, 367. 
 Power to ship, 361. 
 Power of substitution, 369. 
 Power as to suits, 367. 
 Presumption as to signature, 391. 
 Priest not agent for bishop, 344 «. 
 Principal, who may be, 333. [431. 
 
 Principal, act must be done in name of, 
 Principal, how bound, 350, 351. 
 Principal, liability of, 410. 
 Principal must exist, 432. [facts, 432. 
 Principal must have knowledge of all 
 Principal must be capable of ratifying. 
 Private debts of agent, 382 ». [433. 
 Profits, 379. 
 
 Public agent, 352 «., 355. [424 «. 
 
 Public agent; fraud; liability on bond, 
 Public agent; illegal collections, 405 n. 
 Public agent; ratification, 433 «., 434. 
 Public agent; ratification of illegal acts, 
 Public agent; sub-agent, 395. [431 «. 
 Public officers not liable as agents, 404. 
 Purchasing agent, 375. 
 Railroad agent, 361. [company, 373 «. 
 Railroad agent cannot contract with 
 Railroad agent; liability of company, 
 
 411 «., 413 «., 414 «. 
 Ratification, 429, "443. 
 
 Same effect as original authority, 429. 
 
 Voidable acts, 430. 
 
 Act must be dot^e in name of princi- 
 pal, 431. 
 
 Principal must be in existence, 432. 
 
 Knowledge of all facts, 432. 
 
 Capable of ratifying, 433. 
 
 I C. of L.— 68 
 
 1057 
 
Agency. 
 
 INDEX. 
 
 Agency. 
 
 Agency — Continued. [434. 
 
 Disavowal; subsequent ratification, 
 
 Acts of public officers can be ratified, 
 
 Torts, 434. [434. 
 
 Cannot be retracted, 434. 
 
 Cannot be in part of transaction, 434. 
 
 After termination of agency, 435. 
 
 Form of ratification,. 435. 
 
 Must refer to precise act, 436. 
 
 May be implied, 437. 
 
 Clear intention must be shown, 438. 
 
 Implied from form of action, 439. 
 
 Acts not promptly disavowed are rat- 
 ified, 439. [441. 
 
 Principal must have full knowledge, 
 
 Acts must haye been done under ap- 
 pointment, 442. [cient, 442. 
 
 Slight evidence of, sometimes suffi- 
 
 Party relying on, must have been 
 prejudiced, 443. 
 Real estate, power to manage, 365^. 
 Real estate, sale of, 338. 
 Reasonable skill, 371. 
 Receipt, 352 n. 
 
 Receipts and disbursements, 382. 
 Revocation. 5i?? Termination, 443, 448. 
 Rights of agent against principal, 428. 
 
 Right to lien, 428. 
 
 Does not impair right to sue, 429. 
 Rights of agents against third parties, 
 
 408. [name, 408. 
 Can sue when acting in principal's 
 Not when acting in his own name, 
 
 409. [tracted, 409. 
 How when it is doubtful who con- 
 Can sue when he has an interest, 410. 
 
 Rights of principals against third par- 
 ties, 423, 428. 
 
 May sue on contracts of agents 423. 
 
 Right is modified by representations 
 of agent, 425. 
 
 Subject to equities where agent has 
 contracted in his own name, 425. 
 
 May recover money mispaid by 
 agent, 427. 
 
 May follow property, 427. 
 
 May sue for torts, 428. 
 Salary of agent, 396. 
 Sales, 355-360- 
 Scope of employment, 341. 
 Seal, appointment under, revoked by 
 
 parol, 444. 
 Seal; contract for sale of land, 338 n. 
 SeaJ, signing instruments under, 385. 
 Seal, when ratification must be under, 
 Seal, when under, 337. [436. 
 
 Secret instructions, 354. 
 Selling agent, 375. 
 Servants, power to employ, 380. 
 Set-off, 384 n, 425-6. 
 Settle, agent's power to, 367. 
 Sheriff's sale, 376 n. 
 Shipping; power of agent, 362, 
 Signatures of agents, 385-393. 
 
 Agency — Continued. . 
 
 Instruments under seal. 385. 
 
 In name of principal, 386. 
 
 Intention appearing in instrument. 
 
 Intention not appearing, 387. [387. 
 
 Bills and notes, 388. . 
 
 Name of principal appearing, 389. 
 
 Corporate seal, 390. 
 
 Negotiable paper, 390. 
 
 Ambiguous instruments, 391. 
 
 Credit of parties whose names ap- 
 pear, 391. 
 
 Simple contracts, 392. 
 
 Agent must sign his name, 393. 
 Silence of principal; ratification, 440. 
 Simple contract; signature, 392. 
 Special agents, 349, 368. 
 Sub-agents, 394-5. 
 
 Acts of sub-agents, 394. 
 
 Public agents not liable, 395. 
 
 Account to immediate principal, 395. 
 
 Compensation, 395. 
 
 Revocation of power, 447, 448. 
 Substitution, power of, 369. 
 Suit, agents' right of, 429. 
 Suit, power as to, 367. 
 Suit; principal against third party, 423. 
 Suit, ratification by, 439. 
 Suit by third party, 416. 
 Suit, when agent can bring, 409, 410. 
 Suit, when agent cannot bring, 408. 
 Taxes, 340 n. 
 
 Tax-list made by agent, 369 ». 
 Tax title, 378 n. 
 Telegraph agents, 361. 
 Termination of agency, 443-448. 
 
 By agreement, 443. 
 
 By act of principal, 444. 
 
 Under seal revoked by parol, .444. 
 
 Irriplied revocation, 444. 
 
 By act of agent, 445. 
 
 Naked power, 445. 
 
 Coupled with an interest, 445. 
 
 Interest in subject-matter, 446. 
 
 When conferred for a consideration. 
 
 Death of principal, 446. [446. 
 
 When revocation by death takes 
 effect, 447. 
 
 Insanity of principal, 447. 
 
 Insanity of agent, 448. 
 
 Bankruptcy, 448. 
 
 Marriage, 448. 
 
 Dissolution o< partnership, 448. 
 
 War, 448. 
 
 Sub-agent, 447, 448. [448. 
 
 After revocation, but before notice, 
 Third parties, agent's liability, 401. 
 Title, defective, 374 n. 
 Tort, principal's right of action, 428. 
 Tort, when cannot be ratified, 434. 
 Torts of employee, 408. 
 Trustee, fraud of agent of, 408 «. 
 Trustee; speculation, 379 n. 
 Termination of agency, 443-448, 
 
 1058 
 
Agency. 
 
 INDEX. 
 
 All. 
 
 Agency — Continued. 
 
 Termination; irrevocable power re- 
 voked, 445. 
 Termination; purchase by agent, 382. 
 Termination; ratification, 435. 
 Ultra vires, 431 n. 
 Unauthorized, 336 n. 
 Unauthorized act, 439. 
 Unauthorized act; ratificatioti, 429-443. 
 Universal agents, 349. 
 Usage, 354, 371, 390- 
 Usual course of business, ^4.7. 
 Usurious loan, 435 n. 
 Usury. 419 n. 
 Voidable act, 430. 
 Volunteer, 442. 
 War does not revoke, 448, 
 Warranty, 358. 
 Who may be agents, 334. 
 Adverse interests, 335. 
 Joint agents, 335. 
 Who may be principal, 333. 
 
 Infants, married women, aliens, 333. 
 Lunatics, idiots, drunkards. 334. 
 Corporations, 334. 
 Joint principals, 334. 
 Aggregate. 449. 
 Aggregate payments, 449 n. 
 Aggrieved, 449. 
 Aggrieved person, 450. 
 Agister, 451. 
 
 Agister. See animals, 571. 
 Agreeable, 451. 
 Agreeably, 451. 
 Agreed, 451. 
 Agrees, 452. 
 
 Agricultural employment, 452 n. 
 Agriculture, 452. 
 Aid, 452. 
 
 Aid or comfort, 453 «. 
 Aider and abettor, 62, 65, 453. 
 Attachment, wrongful, 63 «. 
 Bigamy, 64 n. 
 Husband and wife, 64 n. 
 Intent, 63 »., 64. , 
 Intoxicating liquors, 63 n. 
 Lapse of time immaterial, 63 n. 
 Misdemeanors, 63 n. 
 Presence and participation, 63. 
 Postmaster's false returns, 64 «. 
 Rape, 64 n. 
 
 Refusing information, 63 «. 
 Statutory crimes not expressly men- 
 tioned, 64 n. 
 Trespass, 63 ». 
 Air-tight, 454. 
 Alarm, 454. 
 Alcalde. 454. 
 Aleatory, 454- 
 Alibi, 454-456- 
 Alien,456-466. 
 Abandonment of wife, 403, 
 Action by alien wife, 463, 
 Action, may bring, 462. 
 
 Alien — Continued. 
 Administrator, may be, 463. 
 Agent, may be, 334, 335 n. 
 Pisxay, may enlist, 463. 
 Attorney, cannot practise as, 464. 
 Bankrupt law, 463 n. 
 Bequest, may take by, 460. 
 Chinese, 457 n. 
 Copyright, 462. 
 
 Corporation, may be a corporator, 463. 
 Crime, may be tried for, 463. 
 Definition, 456. 
 
 Devise, may take by, 458, 460. 
 Dower, 461 ». 
 Enemy, alien, 465. 
 Executor, may be, 463. 
 Friend, alien, 458. 
 Intestate without heirs, 460-462. 
 Jury, 464. 
 
 Mining claim, 460 «., 463 «. 
 Patent, 462. 
 Poor laws, 464. 
 Public office, 464. 
 Real estate, 458. 
 Shipmaster, 464. 
 Statute of distributions, 460, 
 Taxed, may be, 464. 
 Tenant by curtesy, 464. 
 Tort, may prosecute, 462-3. 
 Trade-mark, 462. 
 Treaty, rights secured by, 465. 
 Trustee, 463. 
 
 Trusts, 463. 
 Vote, cannot, 464. 
 Alienate, 466. 
 Alienated, 466. 
 Alienation, 466. 
 Alimony, 467, 486. 
 
 Amount of, pendente lite, 476* 
 
 Amount of permanent, 480. 
 
 Costs, 486. 
 
 Cruelty, 470. 
 
 Definition, 467. 
 
 Desertion, 470. 
 
 Diminishing permanent, 481. 
 
 Dividing property, 484. 
 
 Enforcing decree, 482. 
 
 Faculties of husband, 485. 
 
 Grounds for, 470-1. 
 
 Increasing permanent, 481. 
 
 Jurisdiction, 468. 
 
 Pendente lite, 472-477. 
 
 Permanent, 478-482. 
 
 Restoration of property, 485. 
 
 Security for, 483. 
 
 Sources of the law, 469. 
 
 Termination of, 484. 
 
 Vihea pendente lite ceases, 477. 
 
 Wife's means of, 485. 
 
 Wife must show rectitude, 470. 
 Aliunde, 486. 
 All, 486. 
 
 "All." 5«" Any," 611. 
 All and every my property, 488 «. 
 
 1059 
 
All. 
 
 INDEX. 
 
 Alteration of InBtrnmeiits. 
 
 All business, whatever kind, in dispute 
 between the parties, 66l ». 
 
 All causes of action, 66i n. 
 
 All demands,. 489 n, 661 n. 
 
 All faults, 489 n. 
 
 All fours, 489 n. 
 
 All future erections or additions, 188 «. 
 
 All goods and things of every kind and 
 sort whatever, 488 n. 
 
 All his estate, 488 n. 
 
 All I am possessed of, 488 n. 
 
 All I am worth, 488 n. 
 
 All matters in dispute, 489 «. 
 
 All my accounts, 489 n. 
 
 All my estate, 487 », 488 «. 
 
 All my estate whatsoever, 448 n. 
 
 All my furniture and other household 
 effects, 489 n. 
 
 All my landed estate, 488 n. 
 
 All my lands, 488 «. 
 
 All my notes, .489 n. 
 
 All my personal estate, 488 «. 
 
 All my plantation, 488 n. [489 «. 
 
 All my property of every description, 
 
 All my real and personal property, 488 n. 
 
 All my real estate, 488 n. 
 
 All my real property, 488 n. 
 
 All my temporal estate, 488 n. 
 
 All other articles perishable in their own 
 nature, 776 n. 
 
 All rights that had accrued, 142 n. 
 
 All the estate both real and personal, 
 
 All the money, 489 n. [488 ». 
 
 All the rest and residue, 489 «. 
 
 All unsettled accounts, 661 ». 
 
 Allegiance, 490. 
 
 Allocatur, 490. 
 
 Allodial, 490. 
 
 Allonge, 491. 
 
 Allot, 492 n. 
 
 Allotment, 491. 
 
 Allotment of dower, 492 «. 
 
 Allotment of shares, 492. 
 
 Allotment-note, 492. 
 
 "Allotted," in treaty, 492 ft. 
 
 Allow, 492. 
 
 Allow or permit, 492 n. 
 
 Allow to give, 493 n. 
 
 Allowance, 493. 
 
 "Allowances " of a soldier, 493 «. 
 
 " Allowed and recorded " verdict, 493 n. 
 
 Allowing all people to pass and repass, 
 
 Alluvion, 136-142. [493 n. 
 
 Almanac, 494. 
 
 Alms, 495. 
 
 Along, 495. 
 
 Along a river, 495 «. 
 
 Along a wall, 495 n. 
 
 Along the bank, 495 n. 
 
 Along the high-water mark, 495 n. 
 
 Along the river, 496 ». 
 
 Along the route, 496 «. 
 
 Along the shore, 496 n. 
 
 Along the street, 496 ». 
 
 Already, 496. 
 
 Already accrued, 496 «. 
 
 Already incurred, 496 n. 
 
 Also,, 496. 
 
 Alter, 496. 
 
 Alter or amend, 496 «. 
 
 Alteration, 497 «. 
 
 Alteration of instruments, 497-523. 
 
 Acknowledgments, 509 ». 
 
 Affidavits, 314. 
 
 Apparent, not, 515. 
 
 Bank bills, 523 n. 
 
 Blank, filling up, 515-520. 
 
 Blank in material part, 517. 
 
 Blank, negotiable instruments deliv- 
 ered in, 516. [519- 
 
 Bona-fide holder protected, 515, 517- 
 
 Bonds, blanks in, 520. 
 
 Burden of proof, 512. 
 
 Change of parties, 506. 
 
 Changing character of instrument, 507. 
 
 Common-law rule, 513. 
 
 Consent, 503. 
 
 Consideration, 509. [520. 
 
 Consideration, recovery on original, 
 
 Dates, 510. 
 
 Deed; altered by third party, 505. 
 
 Deed; blanks cannot be filled, 519. 
 
 Deed; filling blanks, 519. 
 
 Deed, material alteration of, 502. 
 
 Definition, 497. 
 
 Description of property, 509. 
 
 Erasure of words, 501. 
 
 Fraudulent intent, 501, 520. 
 
 Immaterial alterations, 498-50I. 
 
 Implied ratification, 522. 
 
 Insertion of words, 499. 
 
 Interest, 509. 
 
 Interlineations, 499. 
 
 Law and fact, 512. 
 
 Material alterations, 502-515, 
 
 Material or not, 512-515. 
 
 Material part, 505. 
 
 Memoranda, 511. 
 
 Merger, 521. 
 
 Negotiable instruments, 514, 
 
 Negligence, 515. 
 
 Obscure, 515. 
 
 Payee, original, estopped, 518. 
 
 Payment, place of, 508. 
 
 Payment, time of, 508. 
 
 Place of payment, 508. 
 
 Presumptions, 512. 
 
 Principal, alteration of, 508. 
 
 Ratification, 521. [520. 
 
 Recovery on original consideration, 
 
 Restoration of alteration, 504. 
 
 Rights of parties, 511. 
 
 Rights of third parties, 520. 
 
 Seal, adding, 508 n. 
 
 Seal, defacing, 505 »., 508 n. 
 
 Signature in blank, 519 n. [S'Q- 
 
 Stipulations, additional, not allowed, 
 
 Surety discharged, 512 n. 
 
 1060 
 
AUoration cf Instraments. 
 
 INDEX. 
 
 Aniiwftla 
 
 Alteration of instruments — Continued. 
 
 Third party, act of, 505. 
 
 Third parties, rights of, 520, 
 
 Time of payment, 508. 
 
 Unchanged meaning, 498. 
 
 Wills, 522. 
 
 Words, 498, 499, SOI. 
 Altering, 523. 
 Altering bank bills, 523 », 
 Altering highways, 523 ». 
 Always, 523. 
 
 Amalgamate, amalgamation, 523, 
 Ambassador, 524. 
 
 Arrest, 727. 
 Ambiguity, 525-545- 
 
 Abbreviations, 15, 545 n. 
 
 Acknowledgments, 156. 
 
 Adverse possession, 291. 
 
 Agency, 351, 391, 409. 
 
 Agent's contract, 409. 
 
 Authority, 1038. 
 
 Bills and notes, 529 et seq. 
 
 Clerical errors, 543 «. 
 
 Contracts, 541. 
 
 Conveyances, 538. 
 
 Deeds, 538 et seq. 
 
 Definition, 525. 
 
 Evidence to remove latent, 532. 
 
 Extrinsic evidence, 529, 532. 
 
 Factum, upon the, 527 «. 
 
 Insurance policy, 545 ». 
 
 Latent, 530 et seq. 
 
 Mistake not an ambiguity, 533. 
 
 Negotiable instruments, 529 et seq. 
 
 Patent, 527-529. 
 
 Signature by agent, 391. 
 
 Technical vyords, 543 «. 
 
 Wills, interprptation of, 526, 535. 
 Amendment, 546-555. 
 
 Answer, 610. 
 
 Clerical errors, 550. 
 
 Costs, 555. 
 
 Criminal law, 548 n. 
 
 Dates, 551. 
 
 Defects cured by verdict, 555. 
 
 Definition, 546. 
 
 General principles, 547. [554- 
 
 Judgment may be made certain after, 
 
 Laches, party guilty of, estopped, 554. 
 
 Modern rule, 546. 
 
 Names of parties, 550. 
 
 New cause of action, 548-9. 
 
 New defence may be addedi 550. 
 
 Pleadings, 552. 
 
 Practice, 555. 
 
 Process, of, 552. 
 
 Unfair, not allowed, 548. 
 
 Record, of the, 553. 
 
 Time within which, can be made, 553. 
 
 Verdict cures defects, 553. 
 Amercement, 555. 
 Amicable, 556. 
 Amicable action, 556 «. 
 Amicable compounders, 556 «. 
 
 Amicable lawsuit, 556 ». 
 
 Amicus curise, 556. 
 
 Amnesty, 556. 
 
 Among, 556. 
 
 Among valuable papers, 557 n. 
 
 Amotion, 557-562. 
 
 By-laws, breach of, 560 n. 
 
 Causes for expulsion, 559. [by, 558. 
 
 Charter, power of expulsion conferred 
 
 Commercial societies, 560 «., 561 «. 
 
 Definition, 557. 
 
 Equitable relief, 562 «. 
 
 Illegal expulsion, remedy for, 562. 
 
 Indictable offences, 560 ». 
 
 Limitations on right of expulsion, 559. 
 
 Mandamus, 562 n. 
 
 Medical societies, 560 n. 
 
 Mode of expulsion, 561. 
 
 Non-user does not forfeit rights, 562 n. 
 
 Provisions of charter, etc., must be 
 observed, 562. 
 
 Religious societies, 560 ». 
 
 Right of expulsion, 557. 
 
 Social clubs, 560 »., 561 n. 
 
 What court will consider, 563 n. 
 
 Who has power to expel, 561. 
 Amount, 563. 
 
 Amount in controversy, 563. 
 Amusement, 564. 
 Analogous, 564. 
 Ancestor, 564. 
 Anchor, 564. 
 Anchor watch, 564 «. 
 Anchorage, 565 n. 
 Ancient documents, 565-91 
 
 Authentication, 565. 
 
 Color of title, 277 k. 
 
 Custody, 567-9. 
 
 Definition, 565. 
 
 Handwriting, 568 
 
 Ownership, 568. 
 
 Possession, 567. 
 
 Seal, 566 n. 
 
 Witnesses, 566. 
 And, 569. 
 
 And elsewhere, 570 «. 
 And in addition to that, 570 ». 
 And so forth, 570 n. 
 Animals (j« also Accession), 571-591. 
 
 Abandonment of wild animals, 6. 
 
 Abandonment for tort, 3. 
 
 Abatement of dangerous or diseased, 8. 
 
 Accession, 51 n., 59 k. 
 
 Accident, 84. 
 
 Action for recovery, 573. 
 
 Agister, 589. 
 
 Bailments, 589. 
 
 Bees, 571 »., 582 «. 
 
 Conversion, 574 n. 
 
 Cruelty to, 575. , 
 
 Diseased cattle. 585. i\ 
 
 Dogs, injuries by, 584. ' ' 
 
 Dogs, license of, 586 n. 
 
 Domestic, 572. 
 
 1061 
 
Animals. 
 
 INDEX. 
 
 Appointment. 
 
 Animals — Continued. 
 
 Fish, 571 n., 572 n. 
 
 Impounding, 588. 
 
 Increase bf, 572 n. 
 
 Injuries by, 578-580, 582, 584. 
 
 Injuries to, 574. 
 
 Larceny of, 573 n. 
 
 Liability for trespass, 580.. 
 
 Oysters, 571 n. 
 
 Pigeon-shooting, 576 n. 
 
 Prevention of trespass, 580^ 
 
 Runaway, 587. 
 
 Sheep; injuries by dogs, 584. 
 
 Stray, 587. 
 
 Tame, 572 ». 
 
 Tax on dogs, 573 n. 
 
 Trespass, 575 n., 576, 578-580. 
 
 Vicious, 581, 589. 
 
 Wild, 571. 
 
 Wild, injuries by, 582. , 
 Annexed, annexation, 590. 
 Annexed to the freehold, 591 n. 
 Announced, 591. 
 Annually appoint, 631 «. 
 Annuities; abstract of title, 48. 
 Annuity, advancement as, 217. 
 Answer, 599-610. 
 
 Amendment, 610. 
 
 Confidential communications, 601. 
 
 Corporation, 610 n. 
 
 Defences, 605. 
 
 Demurrable, not, 606. 
 
 Discovery, 606. 
 
 Discovery, how compelled, 601. 
 
 Documents, 602. 
 
 Evidence for defendant, 6og. [603-5. 
 
 Exception for insufficient discovery, 
 
 Form of, 607. 
 
 Frivolous, 600. 
 
 Husband and wife, 6og. 
 
 Impertinence, 603. 
 
 Infants, 608. 
 
 Information and belief, 605. 
 
 Insufficient discovery, 604-5. 
 
 Interrogatories, 602. 
 
 Lunatics, 608. 
 
 Married women, 608. 
 
 Oath, 607. 
 
 Plea overruled by answer, 607. 
 
 Plea, support of, 606. 
 
 Positive knowledge, 605. 
 
 Pro confesso, 602. 
 
 Scandalous matter, 603., 
 
 Sham, 600. 
 
 Signature, 608. 
 Antichresis, 610. 
 Any, 611. 
 
 Any addition bf building, 188 «. 
 Any article, 775 n. 
 Any creditor, 612 n. 
 Any other article or thing, 775 n. 
 Any person or persons, 612 ». 
 Any suit. 612 n. 
 Any thing, 612 n. 
 
 1062 
 
 Apart, 612. 
 
 Apart from her husband, 612 «. 
 
 Apartment, 612. 
 
 Apartments, 612 n. 
 
 Arson, 764 n. 
 
 Apex, 613. 
 
 Apparatus, 614. 
 
 Apparent, 615. 
 
 Apparent ownership, 613 n. 
 
 Apparent danger, 615 n. 
 
 Apparent easementSj 615 «. ■ 
 
 Apparent good order, 616 n. 
 
 Apparent intention, 615 n. 
 
 Apparent possession, 615 n. 
 
 Apparent signs, 615 «. 
 
 Apparent violation of rule of court, 6l6, 
 
 Appeal, 616-629. 
 
 Agent's neglect to file power, 622 «. 
 
 Amount, 619 n. 
 
 Arbitration discontinues, 663 n. 
 
 By whom taken, 619 n. 
 
 Civil. 616. 
 
 Criminal, 628. 
 
 Derivation, 616. 
 
 Dismissal, 627. 
 
 Effect of, 623. 
 
 Final decree, what constitutes, 617 », 
 
 Interest to increase amount, 620 ». 
 
 Judgments, 627. 
 
 Notice, 622. 
 
 Parliamentary practice, 629. 
 
 Practice, 626. 
 
 Publication of notice, 622 n. 
 
 Record, 623. 
 
 Refusal of an application, 631 «. 
 
 Set-off in amount on appeal^ 620 ». 
 
 Time, 621. 
 
 Waiver, 622. 
 
 What is open, 624. 
 
 When it lies, 617. 
 
 When it will not He, 618 «. 
 Appellate, 629. 
 
 Appellate and supervisory power, 629 «. 
 Appellate court, 629 n. 
 Appendage, 629. 
 
 Appendant, 630. [guished, 630 «. 
 
 Appendant and appurtenant distin- 
 Appertaining, 630. 
 Applicable, 631. 
 Application, 631. 
 
 Application for continuance, 631 n. 
 Application for insurance policy, 631 n. 
 Application for land, abandonment of, 6. 
 Applied, 631. 
 Applied for, 631 n. 
 Apply, 631. 
 
 Apply to the use, 631 w. 
 Appoint, 631. 
 AppointmenJ, 631. 
 
 Agent, 336. 
 
 Assets, 632. 
 
 Definition, 631. 
 
 Exclusive. 633. 
 
 Executing, manner of, 632. 
 
Appointment. 
 
 INDEX. 
 
 Arbitration. 
 
 Appointment — Continued. 
 
 Illusory, 633. 
 
 Manner of executing, 632. 
 
 OflBce, 631. 
 
 Power, under a, 632. 
 
 Under a power, 632. 
 Apportionment, 633-635. 
 
 Definition, 633. 
 
 Liabilities, 633, 
 
 Kights, 633. 
 
 Use of tile term, 633. 
 Appraisal; account statedj 116 «■ 
 Appraise, appraisers, 634, 
 Appraisement, 634-6. 
 
 Admiralty, 655. ' ' 
 
 Arbitration, '635. 
 
 Commission of, 634. 
 
 Decedents' estates, 634. 
 
 Dutiable goods, 635. 
 
 Eminent domain, 635. 
 
 Executions, 635. 
 
 Kinds of, 634. 
 
 Leases, 635. 
 
 Revenue laws, 635. 
 
 Taxation, 635. 
 Appraised value, 634 «. 
 Appraiser, 634 n. 
 Apprehend, 636. 
 Apprentices, 636. 
 Appropriate, appropriation, 639. 
 Approve, approver, approvement, 640. 
 Approved, 641 n. 
 Appurtenance, 641. 
 
 Appurtenant, 644, 645. [gtiisiied, 630 n. 
 Appurtenant and appendant distin- 
 Apt time, 645. 
 Arbitrarily, 645. 
 Arbitration, 646-716. 
 
 "Abide by an award," 27 n. 
 
 Absence of party, 682 «., 685. 
 
 Account render, 131. [116 ». 
 
 Account stated, award not evidence of. 
 
 Actions, discontinues, 184^. 
 
 Adjournments, 682-709. 
 
 " Adjudicate and settle all matters ex- 
 isting between the parties," 661 ». 
 
 Administrators, 653. [679-682. 
 
 Arbitrators; adpiission of evidence. 
 
 Adverse opinion of arbitrator, 673. 
 
 Agents of both parties. 652, 673. 
 
 "All business wliatever kind in dis- 
 pute between parties," 65l n. 
 
 " All causes of action," 661 n. 
 
 "All demands," 489 «., 661 n. 
 
 " All matters in dispute," 489 »., 659. 
 
 All parties must be present, 685. 
 
 "All unsettled accounts," 661 n. 
 
 Alternative, award in, 6g8. 
 
 Amicable compounders, 556 n. 
 
 Amount, certainty as to, 700. 
 
 Appointment of umpire, 690. 
 
 Appraisement, 635. 
 
 Arbitrators, 670-677. [677. 
 
 Arbitrators cannot delegate powers, 
 ■Arbitrators; compensation, 686. 
 
 1063 
 
 Arbitration — Continued. 
 
 Arbitrators must act together, 683. 
 
 Arbitrators, oath of, 674. 
 
 Arbitrators, power of; 675-9. 
 
 Arbitrators; procedure, 679-686. 
 
 Arbitrators as witnesses, 691. 
 
 Assumpsit, 885. 
 
 Attendance of witnesses, 679. 
 
 Attorneys, 664 n. 
 
 Attorney, submission by, 652 n. 
 
 Authority, duration of, 688. 
 
 Authority, excess of, 676. 
 
 Award, the, 647, 692-716. 
 
 Award ends authority, 68g. 
 
 Award must be entire, 703. 
 
 Award must be final and certain, 695. 
 
 Award must be mutual, 701. 
 
 Award must be possible, 704. 
 
 Award, publication of, 704. 
 
 Bankrupts, 648. 
 
 Boundary line, 660 «., 699. 
 
 Case suspended, 662. 
 
 Common law, 647. 
 
 Compensation of arbitrators, 686. 
 
 Condition precedent, 668. 
 
 Conditional submission, 661. 
 
 Control of subject-matter essential, 648. 
 
 Corporations, 649. 
 
 Costs, 687. 
 
 Counsel, 683. 
 
 Criminal proceedings, 658. 
 
 Death revokes, 666 «. 
 
 Definition, 647. 
 
 Delivery of award, 705. 
 
 Disqualification of arbitrator, 672-3. 
 
 Duration of authority, 688. 
 
 Duress, 648. 
 
 Effect of award, 711-715. 
 
 Merger, 712. 
 
 Matter not submitted, 7 12. 
 
 Real estate, 713. 
 
 Inadequate award, 714. 
 
 Strangers, 714. 
 
 Ratification, 714. 
 
 Executors, etc., 715. 
 Effect of revocation, 666. 
 Enforcement of award, 715. 
 Errors, release of, 663. 
 Evidence, ruling as to, 679-683. 
 Excluded, what is, 661. 
 Executors and administrators, 653, 71S> 
 Fees of arbitrators, 688. 
 Form of award, 692-3. 
 Form of revocation, 665. 
 Form of submission, 656. ' 
 
 Fraud of arbitrators, 707. 
 Fraud of party, 708. 
 General submission, 660. 
 Guardians, 654. 
 Hearing, .notice of, 685. 
 Husband and wife, 649. 
 Idiots, 671. 
 Illegal inatters, 658. 
 Impeachment of award, 706-71I. 
 
 Fraud, partiality, etc., 707. 
 
Arbitration. 
 
 INDEX. 
 
 Axmy. 
 
 Arbitration — Continued. 
 
 Fraud by parties, 708. 
 
 Irregularity, 708. 
 
 Oath of arbitrator, 709. 
 
 Adjournments, 709. 
 
 Evidence, 709. . 
 
 Irregularity in form, 709. 
 
 Mistakes of fact, 709. 
 
 Must be apparent, 710. 
 
 Award part good, 710. 
 
 Power of court, 711. 
 Implied revocation, 665. 
 Inadequate award, 714, 
 Infants, 648, 6-1. 
 Insane persons, 671. 
 Insurance, 669 «., 671 «. 
 Intent of parties, 655. 
 Interest, arbitrator cannot have, 672. 
 Irregularity in form, 709. 
 Irregularity in proceedings, 708. 
 Judge in case pendente lite, 674 ». 
 Lunatics, 671. 
 Marriage revokes, 665 », 
 Married women, 671. 
 Meetings, notice of, 686. 
 Merger, 712. 
 Ministerial acts, 701. 
 Ministerial acts may be delegated, 678. 
 Mistakes of fact, 709. 
 Municipal corporations, 649. 
 Notice of hearing, 685. 
 Notice of meetings, 686. 
 Notice of revocation, 665. 
 Notice, waiver of, 686. 
 Oath, 674, 678, 709. 
 Objection to arbitrator, ,673. 
 Omissions in award, 694. 
 Overseers of the poor, 654. 
 Parol submission, 655 »., 657. 
 Parties to, 648-654. 
 
 Control, 648. 
 
 Infants, 648. 
 
 Bankrupts, 648. 
 
 Husband and wife, 649. 
 
 Corporations, 649. 
 
 Partners, 650. 
 
 Agents, 652. 
 
 Executors and Administrators, 653. 
 
 Guardians, 654. 
 
 Overseers of the poor, 654. 
 Partnership, 650. 
 
 Pendente lite ; submission of cases, 661. 
 Persons, certainty as to, 699. 
 Power of arbitrators, 675-9. 
 
 Judges of law and facts, 675. ' 
 
 Restricted power, 675. 
 
 Waiver, 675. 
 
 Questions of pure law, 676. 
 
 Matters of fact, 676. 
 
 Excess of authority, 676; 
 
 Presumption, 677. 
 
 May not be delegated, 677. 
 
 Ministerial acts, 678. 1 
 
 The oath of witnesses, 678. 
 
 Arbitration — Continued. 
 
 Attendance of witnesses, 679. 
 Public matters, rule ih, 684. 
 Public officers, 649, 654. 
 Public officers as arbitrators, 674 «. 
 Publication of award, 704. 
 Ratification of the award, 714. 
 Real estate, 659, 698, 713. 
 Reopening the case, 681. 
 Restricted power of arbitrators, 675. 
 Revocation, 664-6. 
 
 Form of, 665. 
 
 Implied, 665. 
 
 Effect on parties, 666, 
 
 Binding on both parties, 666. 
 Seal, under, 655. 
 Specific performance, 667. 
 Strangers to the award, 714. [698. 
 
 Snbject-matter; award must be certain. 
 Subject-matter of award, 693. 
 Submissions, 654-664. 
 
 Under statutes, 654. 
 
 Intent of parties, 655. 
 
 Common law, 655. 
 
 Form of, 656. 
 
 Simultaneous, 657. 
 
 When may be made, 658. 
 
 What may be submitted, 658. 
 
 Matter of doubt, 658. 
 
 Real estate, 659. 
 
 General submission, 660. 
 
 What matter excluded, 661. 
 
 Conditional submission, 661. 
 
 Cases pendente lite, 661. 
 
 Cases suspended, 662 
 
 What is submitted, 663. 
 
 Release of errors, 663. 
 
 Matters not included, 712. 
 
 Part withdrawn, 695. 
 Suit is suspended, 662. 
 Swearing witnesses, 678. 
 Time, certainty as to, 699. 
 Third arbitrator, 689. 
 Umpire, 689. 
 
 Umpire must sign award, 691. 
 Waiver, 675. 
 Waiver of notice, 686. 
 What is submitted, 663. 
 Who may be parties, 648-654. 
 Witnesses, arbitrators as, 691. 
 Witnesses, attendance of, 679. 
 Witnesses, evidence of, 680. 
 Witnesses, oath of, 678. 
 Ardent spirits, 716. 
 Are charged, 716. 
 Argument, 716. 
 Arise, 717. 
 
 Arise out of the same transaction, 717 ». 
 Arising, 717 «. 
 
 Arising during the course of the trial. 
 Arm, armed, 717. [717 «. 
 
 Arm of the sea, 718. 
 Arms, 718. 
 Army; alien may enlist, 463. 
 
 1064 
 
Amy. 
 
 INDEX. 
 
 Article. 
 
 Army; allowances of a soldier, 493 ». 
 
 Assault, 7g6 n. 
 
 Deserters, arrest of, 744 n. 
 
 Officer on waiting orders not absent, 
 Aromatic, 719. [35 ». 
 
 Arraignment, 719. 
 Arrangement, 719. 
 Arrears, 719;- 
 Arrears of rent, 719 «. 
 Arrears of taxes, 719 «. 
 Arrest, civil and criminal, 719-758. 
 
 Affidavit, 721. 
 
 Ambassadors, 727. 
 
 Assault in making, 792-3. 
 
 Assisting an officer, 744. 
 
 Attorneys, 948 n. 
 
 Authority cannot be delegated, 744. 
 
 Authority, notice of officer's, 739. 
 
 Bond, 721. 
 
 Breach of the peace, 734-743. 
 
 Breaking doors, 722, 746. 
 
 Givil cases, 719. 
 
 Contempt, 730. 
 
 Costs, 722 «, 
 
 Cruelty to animals, 737 ». 
 
 Debt, prohibited for, 720 «. 
 
 De facto officer, 755 «. 
 
 Deserters, 744 «. 
 
 Discharge from illegal arrest, 728. 
 
 Drunken persons, 736 ». 
 
 Entering houses, 737 «. 
 
 Execution of process, 722. 
 
 Final process, 720, 721. 
 
 Force in effecting, 745. 
 
 Foreign ministers, 727. 
 
 Fresh pursuit, 738. 
 
 Fugitive from another State, 734 n. 
 
 Homicide in effecting, 745, 751-7. 
 
 Houses, entering, 737 ». 
 
 How made, 730 et seq. 
 
 Hue and cry, 748. 
 
 Illegal, 750. 
 
 Illegal, discharge from, 728. 
 
 Illegal; waiver, 728. 
 
 Information upon, 734 «. 
 
 Insane persons, 739. 
 
 Interval of time, 737 «. 
 
 Jurisdiction, 754. 
 
 Law determining the right, 721. 
 
 Manner of making, 745. 
 
 Married women, 727. 
 
 Mesne process, 720. [743- 
 
 Misdemeanor; without warrant, 734- 
 
 Municipal ordinances, 735 «. 
 
 Notice of officer's authority, 739. 
 
 Obstructing arrest, 758. 
 
 Officer de facto, 755 n. 
 
 Ordinances, arrest for violating, 736 ». 
 
 Passenger on railway, 751 ». 
 
 Private person, by. 740-43. 
 
 Private person assisting officer, 744. 
 
 Private person ; breaking doors, 749 «. 
 
 Privilege from. 724. 
 
 Process; how obtained, 721. 
 
 Arrest — Continued. 
 
 Railway passenger, 751. 
 
 Resisting, 755. 
 
 Second arrest, 729. 
 
 Shoiying warrant, 740. 
 
 Time of, 723. 
 
 Time, interval of, 737 «. 
 
 Verbal order of magistrate, 738 «. 
 
 Waiver, 728. 
 
 Warrant, exhibiting, 740. 
 
 Warrant; officer entitled to possession, 
 
 Warrant, without a, 732. [793 «. 
 
 What constitutes, 730. 
 
 What is not, 732 «. 
 Arrival, 758. 
 
 Arrival at port, 758 n. [758 r. 
 
 Arrival within the limits of the U. S., 
 Arrive and enter, 758 ». 
 Arson, 758-774. 
 
 Accessories, 65 «., 774 «. 
 
 Any part of house may be burned, 760. 
 
 Apartments, 764 n. 
 
 Attempt to commit, 759 »., 774 «. 
 
 Barn, 763 n.-^b(> n. 
 
 Barrel-house, 763 ». 
 
 Burning must be charged, 759 «. 
 
 Church, 763 ». 
 
 Common law, 758. 
 
 Communicating fires, ^t2. 
 
 Corn-crib, 763 n. 
 
 Corpus delecti, 759 »., 774. 
 
 Cotton-house. 763 n. 
 
 Curtilage. 76S. 
 
 Dwelling-house must be occupied, 769. 
 
 Gin-house, 763 n. 
 
 Grist-mill, 763 «. 
 
 House must be completed, 769. 
 
 House, setting fire to goods in, 759 «. 
 
 House; what it includes, 764. 
 
 Innocent agent, 65 «. 
 
 Intent, 773. 
 
 Malicious and wilful, 771-3. 
 
 Out-buildings, 765. 
 
 Own property, 761-3. 
 
 Possession; how described, 769. 
 
 Property set fire to, 761. 
 
 Public buildings, 771 n. 
 
 Saw-mill, 763 «. 
 
 School-house, 763 »., 766 «. 
 
 " Set fire" construed, 760. 
 
 Setting fire, 759. 
 
 Setting fire to goods in a house, 759. 
 
 Stable, 763 n. 
 
 Stack of hay, 766 «. 
 
 Storehouse, 763 n. 
 
 Sugar house, 764 «. 
 
 Warehouse, 763 ». 
 Art, 775. 
 
 Article, articles, 775. 
 Article forwarded. 775 «. 
 Article of food, 776 «. 
 Article of manufacture, 775 ». 
 Article, or part of an article, 775 n. 
 Articles and necessaries, 776 «. 
 
 1065 
 
Articles. 
 
 INDEX. 
 
 Assets. 
 
 Articles, goods or things, 776 ». 
 
 •Articles of comfort and support, 776 n. 
 
 Articles of glass, 776 n. [776 n. 
 
 Articles of gold and silver manufacture, 
 
 Articles or objects, 775 n. 
 
 Artificer, 776. 
 
 As, 777. 
 
 As aforesaid, 319 k., 777 n. 
 
 As far as possible, 778 «. 
 
 As foUows, 777 n. 
 
 As for, 777 n. 
 
 As soon after as practicable, 777 ». 
 
 As soon as possible, 777 «. 
 
 As the crow flies, 777 n. 
 
 Assault, assault and battery, 778-822. 
 
 Abbreviations in plea, 20. 
 
 Ability must concur with intent, 790. 
 
 Abuse of a woman, 49. 
 
 Abusive words, 803 n. 
 
 Accessories, 818. 
 
 Aggravated. 782. 
 
 Army, by officer of, 796. 
 
 Arrest, 733 «., 792-3. 
 
 Attempt to rape, 805-6. 
 
 Battery, 783. 
 
 Bodily harm, 812. 
 
 By intermediate means, 812 n. 
 
 Child, chastisement of, 794. 
 
 Child, defence of, 799. 
 
 Child, exposure of, 783. 
 
 Civil action, 783. 
 
 Consent, 784, 805. 
 
 Constructive, 805 n. 
 
 Contributory negligence, 784. . 
 
 Corporations, 809. 
 
 Damages, 803, 819. 
 
 Dangerous weapon, 813-818. 
 
 Deadly weapon, 813-818. 
 
 Defence of husband or wife, 799. 
 
 Defence of other persons, 799. 
 
 Defence of person or property, 796. 
 
 Definition, 778-g. 
 
 Disfiguring, 812 n. 
 
 Drugs, administering, 804. 
 
 Evidence, 803, 819. 
 
 Exposure to weather, 783. , 
 
 False imprisonment, 808. 
 
 Firearms, 814. 
 
 Fraud, 805. 
 
 Frohcking, 808. 
 
 Gestures, threatening, 801, 803. 
 
 Husband and wife, 796 «., 800. 
 
 Husband or wife, defence of, 799. 
 
 Immediate, need not be, 791. 
 
 Imprisonment, unlawful, 808. 
 
 Indecent, 804, 806. [fraternities, 781 ». 
 
 Injuries inflicted during ceremonies of 
 
 In loco parentis, 796 n. 
 
 Intent, 786-790. 
 
 Intent to kill, 818. 
 
 Intoxication, 789 n. 
 
 Jailer, by, 794. 
 
 Judge, of a, 780 n. 
 
 Lawful chastisement, 794. 
 
 Assault — Continued.. 
 
 Lawful force, 792. 
 
 Loaded weapon, 814. 
 
 Mayhem, 812 n. 
 
 Mutual combat, 807. 
 
 Officer, by an, 792-3. 
 
 Official persons, on, 786. 
 
 Parent and child, 794. 
 
 Person, defence of, 796. 
 
 Persons, defence of other, 799. [805, 
 
 Physician exposing person of patient, 
 
 Pregnant women, 821 n. 
 
 Prevention of unlawful acts, 800. • 
 
 Prisoner, on, 794. 
 
 Prize fight, 807. 
 
 Property, defence of, 796. 
 
 Properly, retaking, 798 n. 
 
 Provocation, 803. 
 
 Public officers, on, 786. 
 
 Railway servants, 809, 810 n. 
 
 Rape, attempt to, 805-6. 
 
 Retaking property, 798 n. 
 
 Schoolmaster, by, 794. 
 
 Schoolmaster; indecent assault, 804. 
 
 Scuffling, 808. 
 
 Self-defence, 796. 
 
 Servant, 796 ».. 783 n. 
 
 Servant; defence of master, 799. 
 
 Several persons, on, 790. [789 n. 
 
 Shooting one with intent to kill another, 
 
 Striking distance, 791. 
 
 Third person, on, 789. 
 
 Threatening gestures, 801, 803. 
 
 Threats, 801, 819. 
 
 Trespassers, 798. 
 
 Unlawful acts, prevention of, 800. 
 
 Unloaded fire-arms, 815 k. 
 
 Vigilance committee, 782 n. 
 
 What is; instances, 780 n. 
 
 What is not; instances, 782' ». 
 
 Whipping another's child, 822 n. 
 
 Wife, assault by, 800. 
 
 Wife, chastisement of, 796 n. 
 
 Wife, defence of, 799. 
 
 With violence, 8n. 
 
 Without violence to person, 810, 811. 
 
 Words, threatening, 801. 
 
 Words of provocation, 803. 
 
 Words may qualify, 802. 
 
 Wounding, 812. 
 Assemble, 822. 
 Assembled, 823 n. 
 Assembly, 823. 
 Assent, 823. 
 
 Assent in writing, 824 n. 
 Assessments, 824. 
 
 Abbreviations to designate land, i5. 
 
 Abstract of title, 48. 
 
 Footways, lots abutting on, 49, n. 7. 
 Assessment lease; adverse possession. 
 Assets, 824. [240 n. 
 
 Appointment, 632. 
 
 Common law, 824. 
 Equitable, 825. 
 
 1066 
 
A93et9. 
 
 AsBunyisit 
 
 Assets — Continued. 
 
 Legal, 
 
 Mars ng S26. 
 
 Order of ability, 826, 
 
 Order of priority of debts, S2D. 
 
 What a. -, 82 
 Assignments, .826, 844. 
 
 A nj 27, 832. 
 
 Agency, 829. 
 
 Assaul and battery, 832. 
 
 Causes of action, 827, 832. 
 
 Damages, 833. 
 
 Defam on. 832. 
 
 Defini 826. 
 
 Effect 842. 
 
 Estoppel, 843. 
 
 Expectancies, 830. 
 
 False imprisonment, 832 
 
 Form of, 834 et seq. 
 
 Fraud, 832-3. 
 
 Future earnings, 828-834. 
 
 Future interests, 830. 
 
 Malicious prosecution, 832. 
 
 Money .to become due, 831. 
 
 Negotiable instruments, 836-7, 
 
 Notice, 840. 
 
 Partial, 833. 
 
 Personal services, 832. 
 
 Salary of public officers, 829. 
 
 Secret trusts, 843. 
 
 Torts, 832. 
 
 Wages, 828 et seq. 
 
 What constitutes, 834 ei seq. 
 
 What is, 827, 834. _ [88a 
 
 Assignments for benefit of creditois, 845- 
 
 Accounts of assignee, 877. 
 
 Acknowledgment of, 859. 
 
 Agent, by, 859. 4 
 
 Assignee; rights, duties, etc., 874. 
 
 Assignee, who may be, 850*^ seq. 
 
 Assignments direct to creditors, 846 «. 
 
 Attachment, 899. 
 
 Contemplated insolvency, 850. 
 
 Corporations, 846. 
 
 Creditors ; rights and powers 878. 
 
 Death of assignee, 878. 
 
 Definition, 845. 
 
 Description of pnnerty, 865. 
 
 Duties of assignee, 74-8. 
 
 Effect of assignment, 871-4. 
 
 Formal requisites, 855-860. 
 
 Fraud, 869-7. 
 
 General assignments, 845 n. 
 
 Goods in transit, 854. 
 
 How made, 855-860. 
 
 Infants, 846 n. 
 
 Insolvency, 850. 
 
 Liabilities not incurred, 866. 
 
 Losses in business, 864. 
 
 Partial assignments, 845 n. 
 
 Partnership, 847 et seq. ' 
 
 Payment of claims, 868. 
 
 Personal property, 852 n. 
 
 Personal property of partnership, 847. 
 
 Assignments — Continued. 
 
 Powers of assignee, 874-8^ 
 
 Preferences, 860-863; 
 
 Real estate, 852 n. 
 
 Real estate of partnership, 850. 
 
 Reserva* 1 863. 
 
 Responsibilities of assignee, 874-8. 
 
 Rights and powers of creditors, 878. 
 
 Rights 01 assignee, 874-8. 
 
 Sale, 876. 
 
 Sale of property, 867. 
 
 Schedule, 8*5 7. 
 
 Special assignments, 846 n. 
 
 Special powers, 863, 
 
 Stipulations, 863. 
 
 Subsequently acquired property, 854 «, 
 
 Sufficiency of schedules, 857 ». 
 
 Time, 867. 
 
 Trusts, 864. 
 
 What passes by assignment, 852. 
 
 Who may assign, 846. 
 Assize, assizes, 881. 
 Associate, associates, 881 n. 
 Association, 881. 
 
 Amotion, 557-562. 
 Assumpsit, 882-890. 
 
 Accord and satisfaction, 888. 
 
 Account stated, 884. 
 
 Action, where will not lie, 887, 
 
 Adverse possession, 883 ». 
 
 Arbitration and award, 885. 
 
 Attorneys, 886 ». 
 
 Bailees, 886 n. 
 
 Bills and notes, 885. 
 
 Bill of exchange, 885. 
 
 Carriers, 886 «. 
 
 Charter-party, 885. 
 
 Common counts, 882. 
 
 Consideration, that has failed, 887 n. 
 
 Corporations, 887 n. 
 
 Duress, 883 k., 887 n. 
 
 Erroneous judgment, 886 n. 
 
 Execution, 887 «. 
 
 Foreign judgment, 885, 887 n. 
 
 Forms of the action, 882. 
 
 Fraudulent misrepresentations, 887 «. 
 
 History, 882. 
 
 Indebitatus assumpsit, 882. 
 
 Illegal, void or rescinded contract, 877». 
 
 Innkeepers, 886 n. 
 
 Insimul computassent, 884. 
 
 Insurance, 885. 
 
 Invalid specialty, 887 «. 
 
 Landlord and tenant, 883 «. 
 
 Legacy and distributive share, 885, 888. 
 
 Liability assumpsit, 885. 
 
 Marriage, 885. 
 
 Merger, 888. 
 
 Mistake of fact, 887 «. 
 
 Mutual promises, 885. 
 
 Negotiable instruments, 885. 
 
 New agreement or consideration, 888i 
 
 Partners, 884 n. 
 
 Party wall, 885. 
 
 1067 
 
Anninpsit. 
 
 INDEX. 
 
 AvetioBi: 
 
 Assumpsit — Continued. 
 
 Pleading, 88g. 
 
 Quantum meruit, 884. 
 
 Rent, 8b8 ». 
 
 Requisites, 886. 
 
 Security of higlier nature, 887. 
 
 Special assumpsits, 885. 
 
 Surgeons, 886 ». 
 
 Tort; when waived, 888. 
 
 Verdict and judgment, 8ga 
 
 Wharfingers, 886 ». 
 At, 8go et seq. 
 
 " At and from" a port, 891 n. 
 At an office or banking-house, 893. 
 At his death, 892. 
 " At " in a bill of exchange, 893, 
 At, in, or near, 892. 
 At large, 891 ». 
 At law, 892. 
 At least, 892. 
 At merchant's risk, 892. 
 At once, 892. 
 At or near, .892. 
 At or upon, 892. 
 At sea, 893. 
 At that time, 893. 
 At the dwelliiig-house, 890, n. 893, 
 At the end of one year, 893. 
 At the pit's mouth, 893. 
 At the terminus, 890 n. 
 At the trial, 892. 
 At the warehouse, 893. 
 At their death, 892. 
 At this date, 893. 
 Attachment, 894-936. See Absence, 35 
 
 Abscond, 34 «. 
 
 Absconding debtors, 897 
 
 Abstract of title, 48. 
 
 Advertisement, 934. 
 
 Affidavit, 901. 
 
 Against whom may issue, 896. 
 
 Aider and abettor, 63 n. 
 
 Aider in wrongful, liable, 63 «. 
 
 Amendments, 920. 
 
 Assignee, property in hands of, 899. 
 Assignee, trust property, 899. 
 
 Bail bonds, 923. 
 
 Bonds, 905. 
 
 Bonds to dissolve, 923. 
 
 Character of debt, 896. 
 . Claim before due, 898. 
 
 Concealment, 897. 
 
 Corporations, 898. 
 
 Damages, 896, 908, 
 
 Debtor removing property, 899. 
 
 Defects taken advantage of, 890. 
 
 Delivery bonds, 925. 
 
 Dissolution, 931 et seq. 
 
 Execution of writ, 918. 
 
 Exemptions, 914. 
 
 Fraud, 899, 926 et seq. 
 
 Fraudulent, 926 et seq. 
 
 In whose favor process will lie, 894, 
 
 Issuing writ, 909. 
 
 Attachment — Continued. 
 
 Liability of officer, 929. 
 
 Non-residence, 897. 
 
 Notice, 934. 
 
 Officer, liability of, 929. 
 
 Property affected, 930. 
 
 Property subject to, 911. 
 
 Release of sureties^ 923 n. 
 
 Return of writ, gi8, 921. 
 
 Rights affected, 930. 
 
 Simultaneous, 926 et seq. 
 
 Successive, 926 et seq. 
 
 Tort, will not lie for, 893. 
 
 Attempt, 936. 
 Attorney and client, 942-973. 
 
 Acknowledgment by, 170. 
 
 Acting as, 178. 
 
 Admission, 943. [quire, 245 n. 
 
 Adverse possession, when may ac- 
 
 Adverse title, 960 n. 
 
 Affidavits, 308 »., 309. 
 
 Agency, 348. 
 
 Alien cannot be, 464. 
 
 Answer, 601. 
 
 Appearance, 952. 
 
 Appearance in actions, 184. 
 
 Arbitration, 652 «., 664 »., 683, 
 
 Arrest, 725, 948 ». 
 
 Assignment to prisoner, 943. ». 
 
 Assumpsit, 886. 
 
 Authority, cannot delegate his, 369 H. 
 
 Bail, 950. 
 
 Confidential communications, 601. 
 
 Definition, 942. 
 M. Disabilities, 948. 
 
 Disbarment, 946 n. 
 
 Duration of authority, 958. 
 
 Duties, 945. 
 
 Duties and dealings, 958. 
 
 Express contract, 969. 
 I Illegal services, 964. 
 
 Liabilities, 945. 
 
 Liability of client to attorney, 963. 
 
 Liability to client, 961. 
 
 Liability to third parties, 951. 
 
 Liens, 969 et seq. 
 
 Oath, 943 «. 
 
 Powers implied by retainer, 954. 
 
 Privileges, 948. , 
 
 Purchase of client's property, 959 n. 
 
 Purchase of land by, after consultation. 
 
 Retainer, 952. [378 n. 
 
 Statements to jury, 948-g. 
 
 Subpoena, 949 n. 
 
 Summary jurisdiction, 944. 
 
 Suspension, 946 », 
 
 Witness, as, 945 »., 949 n. 
 Attorney-general, 974. 
 
 Powers, 974 «. 
 
 Duties. 974 W.-976. 
 
 Legislative power over, 974 «. 
 Auctions and auctioneers, 977-1003. 
 
 Agent of purchaser, 984. 
 
 Agreements not toTj'id, 997. 
 1068 
 
Auotloni. 
 
 INDEX. 
 
 Available 
 
 Auctions — Continued. 
 
 Authority, 579- 
 
 Bids, 989 et seq. 
 
 Bids may be retracted, ggS. 
 
 Bonds, 978. ; 
 
 Cannot buy, gSi. 
 
 Care of property, 980. 
 
 Catalogue, 986. 
 
 Collections, 981. 
 
 Compensation, 982. 
 
 Competition, 989. 
 
 Completion of contract, 1000. 
 
 Conditions of sale, 984, 985. 
 
 Definition, 977. 
 
 Delegation of authority, 980. 
 
 Deposit, 998. 
 
 Descriptions, 987. 
 
 Improper bids, 997. 
 
 Instructions, 979. 
 
 Liability for receipts, 980. 
 
 Liabilities of principal, 983. 
 
 License, 978. 
 
 Manner of bidding, 998. 
 
 Memorandum of sale, looi et seq. 
 
 Negligence, 980. 
 
 Particulars of sale, 986. 
 
 Powers, 981. 
 
 Principal's title, 981. 
 
 Puffers, 989. 
 
 Relation to seller, 979. 
 
 Revocation of authority, 979, 
 
 Signature, 1002. 
 
 Statute of frauds, 1000. 
 
 Termination of power, 982. 
 
 Unconditional sales, 989. 
 Audita querela, 1003. 
 
 Against the State, 1004 n. 
 
 Amendment, 1005 ». 
 
 Cases where writ will not lie, 1007. 
 
 Concurrent remedies, 1009, 
 
 Costs, 1005 «. 
 
 Definition, 1003. 
 
 Estoppel, 1008 «. 
 
 Evidence, 1004. 
 
 Executions, 1006. 
 
 Filing the process, 1004 n. 
 
 •Grounds for the action, 1005. 
 
 Judgment, 1005-1007. 
 
 Lunatic, 1007. 
 
 Nature of proceeding, 1003. 
 
 Parties, 1004. 
 
 Pleadings, 1004. 
 
 Substitutes for writ, 1008. 
 
 Suits, 1007 n. 
 
 Surety, 1007 n. 
 
 Verification of writ, 1004 «. 
 Auditing; examine, settle and allow ac- 
 Audjtors, 1009-1020. [counts, 492 n. 
 
 Account render, 131. 
 
 Action by majority, loil. 
 
 Adjoinments, 1013. 
 
 Amendments, 1013. 
 
 Appointment, loio. 
 
 Auditor may testify, 1017. 
 
 Auditors — Continued. 
 
 Compensation, 1020. . 
 
 Confirmation of report, 1016. 
 
 Correction of report, 1016. 
 
 Death of party, 1018. 
 
 Definition, 1009. 
 
 Estoppel, 1013. 
 
 Evidence, ioi2, 1016, 1017. 
 
 Exceptions to report, 1015. 
 
 Impeaching report, 1018. 
 
 Notice of meeting, ion. 
 
 Qualification, loio. 
 
 Recommitment, 1019. 
 
 Report, 1014. 
 
 Report as evidence, 1016. 
 
 What cases may be referred, loil. 
 
 What matters examined, loia. 
 
 Witnesses, 1012. 
 Authentication, 1020-1024. 
 
 Affidavits, 312. 
 
 Ancient documents, 565. 
 
 Book of foreign laws, 1022. 
 
 Definition, 1020. 
 
 Foreign, 1021. 
 
 Judge's certificate, 1023. 
 
 Judicial records, 1022. 
 
 Justice of peace, 1024. 
 
 Modes of, 1020. 
 
 Non-judicial records, 1024. 
 
 Private documents, 1024. 
 
 Protest, 1024. 
 
 Public documents or records, 1020. 
 
 Statutes, 1022. 
 Authority, 1025- 
 
 Actual authority, 1030. 
 
 Admissions, 1029. 
 
 Agent to borrow, 1037. 
 
 Agent to buy, 1037. 
 
 Agent to collect, 1036. 
 
 Agent to loan, 1037. 
 
 Agent to manage real estate, 1037. 
 
 Agent to sell, 1035. 
 
 Agent to sue. 1037. 
 
 Ambiguity in instructions, IO38. 
 
 Construction, 1037. 
 
 Custom, 1029. 
 
 Declarations, 1032. 
 
 Definition, 1025. 
 
 Determination, 1026. 
 
 Emergency, 1030. 
 
 Express, 1027. 
 
 General, 1032. 
 
 How conferred, 1025. 
 
 Implied, 1028, 1033. 
 
 Revocation, 1026. 
 
 Special, 1032. 
 
 Substitution, 1030. 
 
 Usage, 1029. 
 Autre fois convict; abatement plea in, II. 
 Autre fois acquit; abatement plea in. 
 Available, 1038. - [11. 
 
 Available for adjudication, 1038. 
 Available capital, 1039. 
 Available means, 1039. 
 
 1069 
 
Avails. 
 
 INDEX. 
 
 Children. 
 
 Avails, 1939. 
 Avodation, 1039. 
 Avulsion, 136-142. 
 Back, 1039. 
 Bad, 1040. 
 Badge, 1041. 
 Baggage, 1042-1045. 
 
 What is, 1043. 
 
 What is not, 1044, 
 Bail-bonds; abstract of title, 48. 
 
 Attachment, 923. 
 Bail, attorney cannot become, 950. 
 Bailment; animals, 589. 
 
 Assumpsit, 886 n. 
 Ballots; abbreviations, 15. 
 Bank; account stated, iii k., 117 n. ei 
 seq., 124 K., 127 M. 
 
 Agent's liability for failure of, 385 ». 
 
 Cashier is general agent, 349 n. 
 
 Cashier, when agent for third person, 
 
 Certifying checks, 341. [342 n. 
 
 Notice to directors, 422. 
 Bank bills; altering, 523 n. 
 Bankruptcy; abatement, suit in, 14 n. 
 
 Agency revoked by, 448. 
 
 Arbitration, 648. 
 Barn; arson, 763 ».-766 «. 
 Barrel-house; arson, 577 n. 
 Battery, 783. 
 Bees, 571 n., 582 n. 
 Before the argument, 716 n. 
 Before the fact, accessory, 66. 
 Begging for alms, 495 n. 
 Beneficial societies; amotion, 557-562. 
 Bequest; adopted child, 205, 206. 
 
 Alien may take by, 460. 
 
 "All," construction of, 487 n. et seq. 
 
 Gives color of title, 277 n. 
 Betterments; adverse possession, 294. 
 Bigamy; accessory, 64 n. 
 Bill of exchange; assumpsit, 885. 
 Bill of lading; " apparent good order," 
 
 Fraud of agent, 412 n. [616 ». 
 
 Bill of revivor; abatement, effect in, 14. 
 Bill of sale, alteration of, 511 n. 
 
 Apparent possession, 615 «. 
 Bills and notes See Accord and satis- 
 faction, lOi et seq. 
 
 Abbreviations in, 18. 
 
 Account stated, 120. 
 
 Actions, 1840. [to collect, 341 «. 
 
 Agent's possession of, implies power 
 
 Agent's powers, 362. 
 
 Alteration of, 497 et seq. 
 
 Ambiguity, 525-545. 
 
 Assumpsit, S85. [issue, 339 n. 
 
 Corporations; authority of agents to 
 
 Indorsement by agent, 342 n. 
 
 Payment to one not having; 341 ». 
 
 Signature by agent, 38S. [504 n. 
 
 Signature torn from, but replaced. 
 Births; abstract of title, 46. 
 Bishop, priest not agent for, 344 «. [520. 
 Blanks; alteration of instruments, 515- 
 
 Blanks in sealed instruments, 337. 
 
 Ambiguity, 527 et seq.. 
 Blood-vessel, rupture of, 88 n. 
 Boards; accession, 59 «. [517-519- 
 
 Bona-fide alteration of instruments, 515, 
 Bona fide purchaser; acknowledgment of 
 
 deeds, 158. 
 Bonds, alteration of, 497 el seq. 
 
 Arrest, 721. 
 
 Attachment, 905, 923. 
 . Blanks in, 520. 
 Book-keeper cannot bind employer for 
 
 debt of third person, 344 n. 
 Boundaries; adverse possession, 248. 
 
 "Along," construction .of, 495 n. 
 
 Arbitration, 660 n., 699. [227 n. 
 
 Breach of peace; adverse possession. 
 
 Arrest, 734-743. 
 Breaking doors ; arrest, 722, 746, 749 n. 
 Bridge, abutment a part of, 50. 
 
 Admiralty jurisdiction, ig6. 
 
 Obstructing navigation, 8. 
 Brokers, 347, 349 n. 
 Brought up as aforesaid. 319 n. 
 Building; accession, 57 «., 61. 
 Building, altering, repairing, or orna- 
 menting, 523 n. 
 Building association ; accord and satis- 
 faction ; withdrawal of stockholder, 96 n. 
 Burglary. See Age, 328 n. [257 n. 
 
 Burying- ground; adverse possession, 
 C. O. D. ; definition, 17. 
 
 Delivery without payment, 350 n. 
 Carrier; act of God, 173 et seq. 
 
 Agent's power to select, 361. 
 
 Assumpsit, 886 n. 
 
 Delivery to, 50 n. 
 Cases arising in a justice's court, 717 n. 
 Cases arising under treaties, 717 n. 
 Cashier; general agent, 349 n. 
 
 When agent for third person, 342 n. 
 Cattle. See Animals-, 571. 
 
 toiseased, 585. [crued, 142 n. 
 
 Cause of action shall, or shall have ac- 
 Cause of action shall have arisen, 717 n. 
 Cemetery; adverse possession, 257 n. 
 Certificate of acknowledgment, 147 etseq. 
 Cestui que trust; adverse possession, Z40. 
 Charcoal; accession; confusion of goods, 
 Charge and accuse, 143 n. [58 «. 
 
 Charity, soliciting, 495 n. 
 Charter-party; " about to sail,'' 34. 
 
 Assumpsit, 885. [25 «. 
 
 Chaste character presumed in abduction. 
 Chattel mortgage ; accession, 59 ». , 60 ». 
 
 Animals, increase of, 59 n. 
 
 Confusion of goods, 59 ». 
 
 Crops, 60 ». 
 
 Plants, 60 n, 
 
 Stock, of goods, mortgagee an agent to 
 sell, 340 «,, contra, 346 «. 
 Checks, certifying, 341 ». 
 Children, abuse of, 49. 
 
 Accessory, when not, 62 «., 6$ «. 
 
 1070 
 
Children. 
 
 INDEX. 
 
 Crime. 
 
 Children, assault on, 783, 784 »., 822 n. 
 
 Defence of; assault, 799. 
 Chinese aliens, 457 n. 
 Choose equivalent to appoint, 631 «. 
 Church; arson, 763 n. [deeds, 152. 
 
 Clerical errors; acknowledgment of 
 
 Ambiguity, 543. 
 
 Amendment of, in practice, 550. 
 Clerk, 342 «., 348. 
 Clubs; amotion, 560 k., 561 k. 
 Coercion, accomplices of, 62 n. 
 Cohabit, 211 «. ' 
 Collections by agents, 355-360. 
 Collusion by agent to defraud, 423. 
 Color of title; adverse possession, 276- 
 Commercial travellers, 347. [292. 
 
 Commission agents, 347. 
 Common purpose; accessory, 66. 
 Composition of debts; accord and satis- 
 faction, 100 n. [sion, 267 n. 
 Comput.ition of time; adverse posses- 
 Concealed weapons, 718, 735 n. 
 Concealment of felony to be committed; 
 accessory, 67 n. [601. 
 Confidential communications; attorney, 
 Confusion of goods, 54-61. 
 
 Accident, 56. 
 
 Accounts, 60. 
 
 Act of God, 56. 
 
 Agent, 61 n. 
 
 Boards from trees, 59 n. 
 
 By act of innocent party, ^5- 
 . By act of stranger, 57. 
 
 Cord-wood, 58 k. 
 
 Corn into whiskey, 58 n. 
 
 Damages, 59 ». 
 
 Execution, 58 ». 
 
 Factor, 61 k. 
 
 Fire-wood, 59 «. 
 
 Fraud, 57 ». 
 
 Grain, 56 n. 
 
 Hides into leather, 58 n. 
 
 Logs, 56 n. 
 
 Lumber made into shingles, 58 «. 
 
 Machinery, 56 n. 
 
 Mortgaged goods, 57 «., 58, 59 n. 
 
 Partnership, 60 n. 
 
 Posts, 58 n. 
 
 Railroad ties, 56 «., 59 «. 
 
 Rails, 58 n. 
 
 Replevin, 58 ». 
 
 Staves, 58 «. 
 
 Timber, 58 ». 
 
 Trees into charcoal, 58 n. 
 
 Trustee's accounts, 60. 
 
 Vis major, 56. 
 
 Wilfully made, 57. [727. 
 
 Congress; member exempt from arrest, 
 Consent; aider and abettor, 64. 
 
 Alterations of instruments, 503. 
 
 Assault, 784, 805. 
 Consolidation; amalgamation, 523. 
 Conspiracy; accomplices, 62 n. [242. 
 Constrvictive trusts; adverse possession. 
 
 Counsel may take acknowledgments, 144. 
 Contagious diseases; abatement of in- 
 fected houses, 7 n. 
 Contempt; abatement does not discharge. 
 Contiguous, 190 K., 191. [13, n. 5. 
 
 Contract, abandonment of, 6. ' 
 
 Abbreviations in, 16, 17, 18. 
 
 "About," in quantity, 33. 
 
 Admiralty jurisdiction, 197-199. 
 
 Agent's power to perform, 367. 
 
 Ambiguity in, 541. 
 
 Executory. 229. 
 
 Sale of land; agency, 338, 343 n. 
 Contributory negligence; assault, 784. 
 Conversion; animals, 574 n. 
 Conveyance; abstract of title, 46. 
 
 Amljiguity in, 538 et seq. 
 
 By agents, 360. 
 
 By co-tenant, 234. 
 
 By remainder-man, 237 ». 
 Convict cannot make affidavits, 308. 
 Convicted as aforesaid, 319 n. 
 Conviction of principal, evidence of, ad- 
 missible, 72. 
 Co-parceners; adverse possession, 235 «. 
 Copyright; alien, 462. [er, 55 «. 
 
 Cord-wood; accession; labor of trespass- 
 Confusion of goods, 58 n. 
 Corn ; accession ; making into spirits, 54 n. 
 
 Confusion of goods, 58 n. 
 Corn-crib; arson, 763 n. 
 Corporations. See Stockholder. 
 
 Abatement, 13 ». [leges 49, 
 
 Abuse or misuse of corporate privi- 
 
 Account stated, 116 «. 
 
 Acknowledgment of deeds, 159. 
 
 Adverse possession, 271 ». 
 
 Affidavits. 308 «. 
 
 Agents of, 334, 336 «., 338, 339 «., 
 341 K., 345 K., 412 «.,42l, 422, 432 »., 
 
 Alien may be corporator, 463. [438 n. 
 
 Allotment Of stock, 492. 
 
 Answer, cannot swear to, 610 n. 
 
 Arbitration, 649. 
 
 Assault, 809. 
 
 Assignment for creditors, 846. 
 
 Assumpsit, 887 «. 
 
 Attachment, 898. 
 
 Expulsion of members, 557-562. [373. 
 
 Officers cannot deal with themselves. 
 
 Ultra vires, 431 «. 
 Costs; alimony, 486. 
 
 Arbitration cases, 687. 
 
 Arrest for, 722 n. 
 Costs that have accrued, 142 n. 
 Co-tenants; adverse possession, 232. 
 Cotton-house; arson, 763 «. 
 Countermanding felony; accessory, 67 «. 
 County aforesaid, 319 ».. 320 n. 
 Court, acknowledgment by order of, 170. 
 Court-martial; absence of accused, 44 n. 
 Coverture; plea in abatement, 10. 
 Credit, agent's power as regards, 360, 366 
 Crime. See Age, 327. 
 
 1071 
 
CHniM. 
 
 INDEX. 
 
 XreetiM. 
 
 Crimes not felony at common law, 743 «. 
 Crops; accession, 51, 52 »., 60 ». 
 
 Trespasser cannot acquire, 52 ». 
 Cruelty to' animals, 575. 
 
 Arrest, 737 n. 
 Cultivation;, adverse possession, 259. 
 Curtesy; abstract of title, 48. 
 
 Adverse possession, 229 »., 237 «. 
 Curtilage, 768. 
 
 Customs; appraisement, 635. 
 Dam. See Mill-pond. 
 
 Abatement, 8. 
 
 Accident, 83. [examiners, 48. 
 
 Damages; abstract of title; negligence of 
 
 Accession, 59 ». 
 
 Actions, 179. 
 
 Assault, 819. 
 
 Assignment, 833. 
 
 Attachment, 908. 
 
 Confusion of goods, 59 «. 
 Dangerous weapons, appearing vith, 
 constitute an aflray, 318. 
 
 Assault, 813 et seq. 
 Date; acknowledgment, 153. 
 
 Alteration of instruments, 510. 
 
 Amendment of, in practice, 551. 
 Deadly weapon; assault, 813 et stq. 
 Death. See Absence, 35. 
 
 Agency revoked by, 446, 447. 
 
 Arbitration, revokes, 666 «. 
 Debt, arrest for, 720 ». 
 Decedent's debts; abstract of title, 48. 
 Deceit, agent's, 417, 418. 
 Dedication; abstract of title, 48. 
 
 Adverse possession, 226 n. 
 
 Agents, by, 361. 
 Deeds. See Ancient Documents, 565. 
 
 Abbreviations in, 16. 
 
 Abstract of title, 46, 47. 
 
 "About," in quantity, 32. 
 
 Acknowledgment of, 14^-170. 
 
 Acknowledgment; color of title, 287 n. 
 
 Adverse; possession invalid, 285. 
 
 Adverse possession lost, 283. 
 
 Adverse possession not recorded, 283. 
 I Adverse possession, sheriff's, 237 ». 
 
 Adverse possession, tajf deed, 284. 
 
 Agency; equitable title, 338. 
 
 Agency; knowledge of recording not 
 presumed, 433 «. 
 
 Agency, power to execute, 360. 
 
 Agency ; ratification, 436 «. , 437 ». 
 
 Agency; " sell" in power, 346 «. 
 
 Agency; signature, 337, 338, 386. 
 
 "Along;" construction of, 495 ». 
 
 Alteration of, 497 et seq. 
 
 Altered by third party, 505. 
 
 Ambiguity in, 538 et seq. 
 
 Appurtenance, 642. 
 
 Blanks, 519. 
 
 Color of title, 276 et seq. 
 Deed of trust; abstract of title, 48. 
 
 Alienation of homestead, 467 n. 
 Definitions. See Words and Phrases. 
 
 Depositions. See Affidavits, 307. 
 Descent; at^stract of title, 46, 48. 
 
 Adopted child, 205, 206. 
 
 Color of title, 277 ». 
 Deserters; arrest without warrant, 744 n. 
 Designate equivalent to appoint, 631 n. 
 Detective; accessory, when not, 65. 
 Devise; adopted child, 205, 206. 
 
 Alien may take by, 458, 460. 
 
 "All," construction of, 487 «. et seq. 
 
 Appurtenance, 643 ». 
 Disabilities. See Age, 326. 
 
 Abatement, plea in, 9, 10. 
 
 Agency, 334. 
 Discretion, abuse of, 49 n. 
 Dismissed agreed, 451 «. 
 Distribute. See Appropriate, 639, 
 Disturbance of meetings, 823 ». 
 Dividends, accession of, 51 ». 
 Divorce. See Alimony, 467. 
 
 Abandonment, what is, 3 «. 
 
 Acknowledgment by divorced woman. 
 
 Allowance to wife, 493 n. [169- 
 
 Dogs. See Animals, 571. 
 
 Injuries by, 584. 
 
 License of, 586 n. 
 Domicile, abandonment of, 6, 
 Dower ; abstract of title, 48. [169- 
 
 Acknowledgment, omission to insert, 
 
 Adverse possession, 237 n. 
 
 Alien, 461 n. 
 
 Allotment of, 492 «. 
 Drought, loss by, 175. 
 Drugs; administering, an assault, 804. 
 
 Adulteration of, 207. 
 Drummers, 347. 
 Drunkard, agent cannot be an, 334. 
 
 Arrest of, 736 n. 
 
 Assault, 789 n. [45 ». 
 
 Due absolutely and not on a contingency, 
 Duress, accomplices under, 62 «. 
 
 Account stated, 119. 
 
 Acknowledgment of wife, 168. 
 
 Agent's payment under, 405 n. 
 
 Arbitration, 648. 
 
 Assumpsit, 883 »., 887 n. 
 Duties arising on goods imported, 717 h. 
 Dwelling-houses, abatement of filthy, 7, 
 
 8. 
 Each, "any" construed as, 6ll ». 
 Easement, abandonment of, 6. 
 
 Abstract of title, 48. 
 
 Adverse possession, 297. 
 
 Apparent, 615 «. 
 Eaves, abatement of overhanging, 8. 
 Eitlier synonymous with "any," 611 n. 
 Election; alien cannot vote, 464. 
 Eminent domain; abandonment of pro- 
 Appraisement, 635. [ceedings, 4. 
 
 Void proceedings ; color of title, 278 n. 
 Encouragement; aider and abettor, 64. 
 Engaged in agriculture, 452 n. 
 Equitable title, agent may give, 338. 
 Erection, alteration, or repair, 497 m. 
 
 1073 
 
Esoheat. 
 
 INDEX. 
 
 Eorees. 
 
 Escheat; aliens, 456, 
 Escrow; agency, 352 n. 
 Estoppel; adverse possession, 253 «. 
 "Every." A? " Any,"6ii. [492». 
 
 Examine, settle, and allow accounts. 
 Examiners of title, liability of, 48. 
 Exclusive, meaning of; adverse posses- 
 sion, 228 ». 
 Execution; abstract of title, 47. 
 
 Apparent possession, 615 «. 
 
 Appraisement, 635. 
 
 Assumpsit, 887 n. 
 
 Confusion of goods, 58 ». [stated, 112. 
 Executor and administrator; account 
 
 Adverse possession, 242, 277 n. 
 
 Alien may be, 463. 
 
 Allowance of accounts, 494 «. 
 
 Appraisement, 634. 
 
 Arbitration, 653. 715. 
 
 Cannot buy trust land, 376 k. 
 
 Sale; color of title, 277 «. [229. 
 
 Executory contract; adverse possession, 
 Exemptions; abstract of title, 47. 
 Expenses; appertaining, 630 .«. 
 Expenses of administration, 193 n. 
 Expulsion; amotion, 557. [430 «. 
 
 Express company; agent's collections, 
 Extrinsic evidence; ambiguity, i2t)etseq. 
 F. O. B. means "free on board," 18. 
 Factors, 347, 349 ». 
 
 Confusion of goods, 61 ». 
 False imprisonment, action for; accord 
 
 Assault, 8o3. [and satisfaction, 95 n. 
 False pretences; children, 329. 
 Farmer is not a tradesman, artificer, 
 
 workman, etc., 776 «. 
 Felony, crimes not, at common law, 743. 
 Feme covert, agent may be, 334. [259-261. 
 Fences; adverse possession, 248, 257 «., 
 Fiduciary relations; agency, 375. 
 Filum aquae, 139, 140 «., 141 ». 
 Fines; amercement, 555. 
 Fire-arms: assault, 814. 
 Fires; accident, 84, 86. 
 
 Act of God, 176 ». 
 Fire-wood; accession, 59 «. 
 Fish, 571 «., 572 «. 
 Fits, accident caused by, 88 n. 
 Fixture, abandonment of, 6. 
 
 Accession, 51. 
 Flood, loss by a, 174, I77- 
 Food, adulteration of, 207-210. 
 Foreign judgment; assumpsit, 885, 887 «. 
 Foreign minister; ambassador, 524. 
 
 Arrest, 727. 
 Forgery; agency, 352 »., 431 »., 432 «. 
 
 Agent may state draft is good, 342 n. 
 Fornication, 210. [ceremonies, 781 «. 
 Fraternities; injuries inflicted during 
 Fraud; abduction, 24. 
 
 Accord and satisfaction, 106. 
 
 Account stated, 123. 125. 
 
 Acknowledgment of deeds, 160. 
 
 Actions, discontmuanceof, i84,f. 
 
 I C. of L.i-69 
 
 Fraud — Continued. 
 
 Actual and constructive distinguished, 
 
 Adverse possession, 233 «., 292. [184^. 
 
 Agent's, affects rights of principal, 425. 
 
 Agent's; collusion, 423. 
 
 Agent's liability, 407. 
 
 Agent's; liability of principal, 417-418. 
 
 Agent's, will not give color of title, 
 245 «. 
 
 Alterations of instruments, 501, 520. 
 
 Arbitration, 707, 708. 
 
 Assault, indecent, 805. 
 
 Assignments for creditors, 869. 
 
 Assumpsit, 887 n. 
 
 Attachment, 899, 926 et seq. 
 
 Confusion of goods, 57 «. 
 
 Principal may follow property illegally 
 sold by agent, 427. 
 Freehold, abatement of, 14. 
 Freight as agreed, 45 1 ». 
 From any of the places aforesaid, 320 n. 
 From the day and year aforesaid, 320 n. 
 Frost, loss by, 175, 177 n. 
 Gale, loss by, 175, 177. [614 n. 
 
 Game-cock not apparatus for gaming. 
 Gaming, game-cocks not apparatus for, 
 Gambling; accomplices, 62 «. [614 «. 
 Gift; abandonment, 2 n. 
 
 Advancements, 217, 223. 
 
 Adverse possession, 280. 
 
 Agent, to, 378 n. 
 Gin-house; arson, 763 ». 
 Giving a false alarm, 454 «. 
 Good faith; adverse possession, 277. 
 Governor, absence of, 36 «. 
 Grain, confusion of, 56 n. [sion, 232 n. 
 Grandchild, laches of; adverse posses- 
 Grant; adverse possession, 288 «., 289. 
 Grantor'and grantee ; adverse possession, 
 
 247. [possession, 258 n. 
 
 Grass, cutting, does not give adverse 
 Grist-mill; arson, 763 «. 
 Guardian; arbitration, 654. 
 
 Deed; color of title, 277 n. 
 Gun; assault, 814. 
 
 Handwriting; ancient documents, 568. 
 Hernia; accident insurance, 88 «. 
 Her part aforesaid, 320 n. 
 Hides; accession, 58 ». 
 Highways; abatement of obstructions, 7. 
 
 Accretion, 138 n. 
 
 Adverse possession, 297. 
 
 Alteration of, 496 ». , 497 »., 523 ». 
 Homestead, abandonment of, 6. 
 
 Assignment not color of title, 278 n. 
 
 Deed of trust is alienation, 467 ». 
 Homicide; abortion, 29 n. 
 
 Accessory, 61, 65, 66, 67 »., 68 ». , 
 69 »., 70 n., 71 «. 
 
 Apparent danger. 615 n. 
 
 Apparent intention, 615 «. 
 
 Children, 327. 
 Horses. See Animals, 571. 
 
 Accident, 84. ' 
 
 1073 
 
Hotel. 
 
 INDEX. 
 
 Jail. 
 
 Hotel. See Innkeepers. 
 House; arson, 764. 
 
 Entering to arrest, 737 n. [wife, 3. 
 
 Husband and wife; abandonment of 
 
 Actessory, 64 «., 71 n. 
 
 Account stated, 117 n. 
 
 Acknowledgment by wife, 163 et seq. 
 
 Acknowledgment, wife cannot im- 
 peach, 161 n, [257 «., 270 »., 278 n. 
 
 Adverse possession, 229 »., 337 «., 250, 
 
 Affidavits, 308 n. 
 
 Affinity, 315. [426 n. 
 
 Agency, 343 k., 344 «., 345 n.,3i2 »., 
 
 Husband may be wife's agent, 335 n. 
 
 Aider and abettor, 64 «. 
 
 Agency; revocation by marriage, 
 
 Alien, 456. [334 »., 335 «., 448. 
 
 Alimony, 467. 
 
 Answer by, 609. 
 
 Arbitration, 649. , 
 
 Assault, 796 »., 799, 800. 
 
 Defence of, 799. [yr «. 
 
 Rape of wife, husband accessory to, 
 I O U; account stated, 17, 120 «. 
 
 Valid acknowledgment of debt, 17. 
 I give all in Suffolk, 489 n. 
 I give all to my mother, 488 n. 
 Ice; accession, 51 n. 
 Idiot. See Insane person; Lunacy. 
 
 Agent cannot be an, 334. 
 
 Arbitration, 671. 
 Illegal act, agent not required to do, 370. 
 Illegitimate children; advancements, 
 Impounding animals, 588. [221 ». 
 
 Improvements; adverse possession, 294. 
 ■' In." See "At," 8go. 
 In all cases, 486 »., 489 ». 
 In pursuance of the act, 173 «. 
 Incitement, degree of; accessory, 68 n. 
 Iriclosures. See Adverse possession. 
 Incumbrances; abstract of title, 46, 48. 
 Indictable offence; amotion, 560 n. 
 Indictment, " apartment" in, 612 n. 
 Inevitable accident, 175 n. 
 Infamous crime; affidavit, convict can- 
 not make, 308. 
 Infancy, infants. See Adoption of chil- 
 dren, 205: Children; age, 326. 
 
 Abatement, plea in, 10. 
 
 Account stated, iii «. 
 
 Affidavit, 308. 
 
 Agency, 334. 
 
 Answer by infant, 608. 
 
 Arbitration, 648, 671. 
 
 Assignments for creditors, 846 ». 
 
 Deed of; color of title, 286 n. 
 
 Power of attorney, 334 n. ' 
 
 Sale of infant's property, 45 n. 
 Inheritance; adopted child, 205 n. 
 Injuries by animals, 578-580, 582, 584., 
 Injuries to animals, 574. 
 Injuries to person; accident, 82 et seq, 
 
 Acrord and satisfaction, 98 n. 
 Injuries to property; accident, 82 et seq. 
 
 Innkeepers; assumpsit, 886 n. 
 
 Clerk agent for, 342 n. 
 Innocent agent, accessory, is not, 65. 
 Insane persons. See Idiot; Lunacy. 
 
 Abatement, plea in, 9. 
 
 Accessory, 65 n. , 
 
 Account stated, iii n. 
 
 Affidavits, 308. 
 
 Agency, 334, 448. 
 
 Arbitration, 671. 
 
 Arrest, 739. 
 Instigation; countermanded, 69. 
 
 Crime differenrfrom one committed, 69. 
 Instigator accessory at common law, 67. 
 Instructions, agent's duty to obey, 369. 
 Insurance; " A sea," meaning of, i n. 
 
 Abandonment, 3. 
 
 Agency to procure, 343 «. 
 
 Alienation of the property, 466 «. 
 
 Ambiguity in policy, 545 n. 
 
 Application for policy, 631 n. 
 
 Arbitration, 669 »., 671 «. 
 
 "Arrival in port," 758 n. 
 
 Assumpsit, 885. 
 
 "At and from a port," 891 n. 
 
 "On all or either," in policy, 487 ti. 
 
 See Accident Insurance, 87. 
 Intent, abandon, to, i «. 
 
 Abortion, 29. 
 
 Adverse possession, 226, 263 »., 286. 
 
 Agency, ratification of, 438. 
 
 Aider and abettor, 63 »., 64. 
 
 Apparent intention, 615 n. 
 
 Arbitration, 655. 
 
 Arspn, 773. 
 
 Assault, 786-790. 
 
 Persons detecting crime, 65. 
 
 Signature by agent, 387. 
 Interest; account stated, 124. 
 
 Advancements, 222. 
 
 Agent liable for, 384. 
 
 Alteration of instruments, 509. 
 
 Appeal; to increase amount, 620^. 
 
 Compound; account stated, iii n. 
 Interpreter, acknowledgment, taking 
 
 through, 166 »., 168 n. 
 Interrogatories; answer, 602. 
 Interruption of possession; adverse pos- 
 "Into." See " At," Sqo. [session, 271. 
 Intoxicating liquors. See Drunkards, 
 
 Accesspry, 62 n., 63 n. [328 ». 
 
 Agent, sale by, 412 n. 
 
 "Appendage" to a saloon, 630 n. 
 
 Arrest of drunkards, 736 n. 
 
 Assault by drunkard, 789 n. 
 
 Children. 328 n. [violation-of law, 64 «. 
 
 Husband may be accessory to wif's'? 
 
 Person detecting sale, 65 «. 
 Is accused, 143 n. 
 Islands; accretion, 138. 
 " It" equivalent to " as," 778. ' 
 It is agreed, 452 n. 
 It is mutually agreed, 452 », 
 Jail; arson, 759 »., 765 «. 
 
 .1074 
 
Jeopardy. 
 
 INDEX. 
 
 Name. 
 
 Jeopardy; abatement, plea in, ii. 
 Judge, absence of, 36 n. 
 
 Assault on, 780 n. 
 Judgment, abbreviations in, 18. 
 
 Appeal, 627. 
 
 Void, not color of title, 278 n. 
 Judicial act, 173 n. 
 
 Judicial proceedings; abstract of title, 46. 
 Judicial sale; abstract of title, 47. 
 
 Adverse possession, 247 n. 
 
 Color of title, 276 «. [11. 
 
 Jurisdiction, want of ; plea in abatement. 
 Juror; arrest, 725. 
 
 Jury; alien, 464. [68. 
 
 Knowledge of intended crime; accessory, 
 Land-warrant; abandonment, 5. 
 Landlord and tenafit; "a year's rent," i n. 
 
 Adverse possession, 238. 
 
 Assumpsit, 883 «., 888 n. 
 
 Tenant not agent, 345 n. 
 Larceny; accessories, 62 n. 
 
 Children, 328 n. 
 
 Dogs. 573 «• 
 Lawful chastisement, 794. 
 Lease; abstract of title, 48. 
 
 " Apartments," 612 n. 
 
 Appraisement, 635. 
 Life; adverse possession, 237 n. 
 Leather; accession, 58 n. 
 Legacy, abatement of, 12. 
 
 Abstract of title, 48. 
 
 Account render, 130 n. 
 
 Aclcnowledgment of release, 170. 
 
 Assumpsit, 885, 888. [727. 
 
 Legislature ; member exempt from arrest, 
 Letters; account stated, 12I. 
 
 Address of, 188. 
 
 Antichresis, 611 n. 
 Lien; abstract of title, 46, 48. 
 
 Agent's, 428. 
 
 Attorney's, 969 et seq. 
 Life estate, adverse possession, 237. 
 
 Deed; color of title, 277 n. 
 
 Sale; color of title, 277 n. 
 Life insurance; advancement, 217. 
 Lightning-rod, 523 n. 
 Limitatibns; account stated, 123. 
 
 Lis pendens; abatement, plea in, 10. 
 
 Abstract of title, 48. 
 Living apart. 612 n. 
 Loaded arms. 718 n. 
 Loan, agent's power, 366. 
 Lobbyist, agent as, 370 n. 
 Logs; confusion of, 56 n. 
 Lunacy. See Idiot; Insane person. 
 
 Agency, 334, 447. 
 
 Answer by, 608. 
 
 Arbitration, 671. 
 Lying at anchor. 565 n. 
 .Machinery; confusion of goods, 56 «. 
 Magistrate, arrest on verbal order of, 
 Majority, See Age, 326. ' [738 n. 
 
 Malice; agent's liability. 407. 
 Malice aforethought, 321 n. 
 
 1075 
 
 Mandamus J amotion. 562 n. 
 Manslaughter. See Homicide. 
 Maritime lien; admiralty jurisdiction, 200. 
 Marriage; abatement, 14 n. [38 «. 
 
 Absence; presumption of innocence, 
 
 Abstract of title, 46. 
 
 Agency; revocation, 448. 
 
 Arbitration, revoked by, 665 n. 
 
 Assumpsit, 885. 
 
 Promotion of, 96 n. 
 Married woman, agent may be, 334. 
 
 Answer, 608, 
 
 Arbitration, 671. 
 
 Arrest, 727. 
 Mass meeting, 823 n. [636. 
 
 Master and servant. See Apprentices, 
 Mayhem, 812 n. 
 Mechanic's lien. 5?^ Lien. - , . 
 
 Abbreviations in account, 17. 
 
 Abstract of title. 48. 
 
 Accession of materials. 52. 
 
 " Erection, alteration, or repair," 497 »«. 
 Medical societies; amotion, 560 n. 
 Mercantile agencies, 348. 
 Merchant, 777 n. 
 
 Merger; alteration of instruments, 521. 
 Military cotirts; absence of defendant, 
 
 44 «• [255 n. 
 
 Millpond, adverse possession, 251, n. 
 
 Mine, abandonment, 6. 
 
 Adverse possession, 296. 
 
 Alien may hold, 46o^»., 463 n. 
 
 Apex of, 613. 
 Ministerial act, 173 ». [63 »., 72, 
 
 Misdemeanors"; aiders and abettors. 
 
 Misnomer, abbreviations, 20. 
 
 Plea in abatement, to. 
 
 Mistake; accession, 53 n. 
 
 Account stated, 125. 
 
 Acknowledgment, \'ia et seq. 
 
 Adverse possession, 248, 281-2. 
 
 Agency, 372 n. 427. 
 
 Alteration of instruments, 498 et seq. 
 
 Ambiguity, 533. 
 
 Assumpsit, 887 n. 
 Misuse, abuse and, 49. 
 Mortgage. See Chattel mortgage. 
 , Abstract of title,, 46, 48./ ■ ;,:,,; 
 
 Accession, 59 «., 60 «. ' ' ' ';' 
 
 Adverse possession, 245. 
 
 Agency, 357 »., 366, 376 w., 377 n. 
 
 Alienation of property, 466-7 «. ' 
 
 Alteration of instruments, 497 et seq. 
 
 By donor, void. 281 n. 
 
 Confusion of goods, 57 «., 58. 
 Mortmain, alienation in, 467 ». 
 Municipal corporations; adverse posses- 
 
 Amotion, 557-562. [sion, 300. 
 
 Arbitrations, 649. 
 Municipal ordinances , arrest, 735 n. 
 Murder. See Homicide. 
 Mutilation of instruments, n. 
 Name, abbreviations. .15, 17, 19, 20. 
 
 Alteration of instruments, 497 et seq. 
 
Kame. 
 
 INDEX. 
 
 FriBoaer; 
 
 Name, amendment of in practice, 550, 
 Navigable rivers, what are, 139 n. 
 Navigable waters; abatement of obstruc- 
 " Near." See " kx," "i^o, [tions, 7' 
 
 Necessary apparatus, 615 «. 
 Necessary appendages, 629 n. 
 Negligence; accident, 82. 
 
 Acknowledgments, 155 n. 
 
 Act of God, 176. 
 
 Agency, liablity of principal, 419. 
 
 Agency; principal's negligence, 35 n. 
 
 Agent, of, 371, 406, 411 «., 413 »., 
 
 Alteration of instruments, 515. [4I4». 
 
 Assault, 784. 
 
 Liability of examiners of title, 48. 
 
 .Notary, 155 «. [struments, 514. 
 
 Negotiable instruments; alteration of in- 
 
 Ambiguity, 529 et seq. 
 
 Blank, delivered in, 516. 
 New promise; account stated, 123. 
 Notary; abbreviations in protest, 17. 
 
 AflSdavits, power to take, 310. 
 
 Negligence, 155 n. 
 
 Protest, address of, 188 «. 
 Notice; adverse possession, 235 »., 264. 
 
 Advertisements, 306. / 
 
 Agency, 419, 423, 442, 448. 
 
 Appeals, 622. 
 
 Arbitration, revocation of, 665. 
 
 Arrest, 739. 
 
 Assignment, 840. 
 
 Attachment, 934. 
 Noxious trades, abatement, 7, 8. 
 Noxious thing, abortion, 29. 
 Nuisances, abatement, 6-8. 
 
 Actions, 179 n. 
 
 Agency; ratification, 438 n. 
 
 Child, not liable for, 330. 
 Oath; answer, 607. 
 
 Attorney's, 943 n. 
 
 Arbitration, 674, 678, 709. 
 Occur and accrue distinguished, 142 n. 
 Office; abandonment, 3. 
 
 Appointment to, 631. 
 Official bonds, abstract of title, 48. 
 Oleomargarine. &^ Adulteration of food. 
 On all or either, 487 «. 
 On application, 631 ». 
 "Or" used interchangeably with "and," 
 Other valuable article, 776 n. . [569. 
 
 Otherwise acquired, 171 n. 
 Ouster; adverse possession, 232, 233. 
 Overseers of poor; arbitration, 654. 
 Owing or accruing, 142 n. 
 Oysters, 571 n. 
 Pardon; abatement, 11. 
 Parent and child, aljandonment of child, 
 
 Account Stated, 118 ». [3. 
 
 Advancements, 216 et seq. 
 
 Adverse possession, 252 «., 282 «. 
 
 Agency, 335 «., 340 »., 345 «. 
 
 Alien, 456. 
 
 Chastisement, 794. [279, 293. 
 
 Parol agreement; adverse possession, 
 
 Parol sale; adverse possession, 236 «. 
 Partition; adverse possession, 233 n. 
 
 Color of title, 278 n. 
 Partnership; admiralty jurisdiction, igS^ 
 
 Agency', 338, 432 n., 448. , 
 
 Arbitration, 650. 
 
 Assignment for creditors, 847 et seq. 
 
 Assumpsit, 884 n. 
 
 Confusion of goods, 60 « 
 
 Partner cannot pay private debt with 
 partnership funds, 382 n. 
 Party aggrieved, 450 n. 
 Party wall; Assumpsit, 885. 
 Pass-book; account stated, in n., 117 «., 
 
 118 n., 124 n., 127 n. 
 Passing the act, 173 n. 
 Patents; abandonment, 6. 
 
 Abstract of title, 46, 47. 
 
 Actions, 184 a. 
 
 Alien may have, 462. 
 
 "Art," 775 n. 
 Paving-stone; accession, 59 «. [100.- 
 
 Payment, part; accord and satisfaction,. 
 
 Presumption of. under executory con- 
 tract, 232 n. 
 Pendente-lite purchaser; adverse posses- 
 Perils of the sea, 176 re. [sion, 247.. 
 Peritonitis; accident insurance, 89 «. 
 Perjury; affidavits, 310. 
 
 Children, 328 re. 
 Permissive entry; adverse possession-, 
 Personally acquainted with, 171 re. [251. 
 Physician and surgeon ; accident, 83 re. 
 
 Agent's power to employ, 353 «. , 365, 
 
 Assault, 805. 
 
 Assumpsit, 886 re. 
 Pigeon-shooting, 576 re. 
 Plans; abstract of title, 47. 
 Plants; accession, 51 «., 60 «. 
 Pleadings; abbreviations, 19. 
 Pledge. See Antichresis, 610. 
 Poison; accident insurance, 920. 
 Political meeting, 823. 
 Poor laws; aliens, 464. 
 Popular assembly, 823 re. 
 Possession; accession. 52. 
 Postmaster; false returns, 64 «. 
 Power, appointment under, 632. 
 Power of attorney. 5f^ Agency. 
 Powers; abstract of title, 47. 
 Pre-emption ; _claim not color of title',. 
 Pregnant; abortion, 30. [278 n. 
 
 Pregnant women, assault on, 821 «. 
 Presence; accessory, 63, 68 re. 
 
 Constructive, 64, 68 re., 70. 
 Presumption ; payment under execu- 
 tory contract, 232 re. 
 Presumption of death, 37-43. 
 
 Acknowledgment, 169. , [ship, 37-43. 
 Presumption of life, death, and survivor- 
 Priest not agent for his bishop, 344 «. 
 Prison. See Jail. 
 
 "Apartment" of a, 613 ». 
 Prisoner; assault by jailer, 794. 
 
 1076 
 
Private Fstboh. 
 
 INDEX. 
 
 Seaweed. 
 
 Prwate person, arrest by, 740-743. 
 
 Assisting in arrest, 744. 
 
 Breaking doors to arrest, 749 ». 
 Privilege; plea in abatement, 10. 
 Prize causes ; admiralty jurisdiction, 200. 
 Prize fight; accessories, 68 n. 
 
 Assault, 807. 
 Process, abuse of, 49. 
 Promissory notes.' See Bills and notes. 
 Prostitution, 25 «. 
 Protest; address of letters, 188. 
 Public accounts; account stated, 112. 
 Public act, 173 n. [363 «., 433 «., 434. 
 Public agents. See Public officers, 348, 
 Public buildings; arson, 771. 
 Public lands; adverse possession, 298-9. 
 Public meetings, disturbance of, 823 «. 
 Public ofRce, alien cannot hold, 464. 
 Public officers, absence of, 36 «. 
 
 Agents as, 395, 404. 
 
 Arbitration, 649, 654, 674. 
 
 Assault on, 786. 
 
 Assignment of salary, 829. 
 
 Fraud, liability on bond, 424 «. 
 
 Illegal collections, 405 n. 
 
 Ratification of illegal acts, 431 n. 
 Public place; what is, 318 n. 
 Public sales, 306 n. 
 Puffers: auctions, 989. 
 Purposes aforesaid, 320 n. 
 Quarry; adverse possession, 296 n. 
 Quick with child, abortion, in, 30. 
 Railroad; a railroad leading to M., what 
 is, I n. 
 
 Abandonment of proceedings to con- 
 demn land, 4. 
 
 Accession, 59 n. 
 
 Accident from use of road, 84. 
 
 Adequate crossing, 189 n. 
 
 Adverse possession, 290 n. 
 
 Agents, powers of, 361, 373 ». 
 
 Agent'sact, liability for, 411 «., 413 K., 
 ' Appendages, 630 n. [414 n. 
 
 Appertaining to, 630 «. 
 
 Arrest of passenger, 751. 
 
 Assault by servants, 809, 810 n. 
 
 Injuries to persons; accord and satis- 
 faction, 98 n. 
 
 Rails; accession of materials, 53 «. 
 
 Station agent cannot contract with 
 company, 373 n. 
 
 Ties; confusion of goods, 56 n. 
 Rails, accession, 58 n. 
 Rape; aider and abettor, 64 «, 71. 
 
 Attempt is assault, 805, 806. 
 
 Children, 328 n. 
 
 Husband may be accessory to, 71. 
 Real estate. See Adverse possession. 
 
 Abandonment. 2. 4. 
 
 Abstract of title, 46. 
 
 Abutting. 49, n. 7. 
 
 Accession, 51, 60, «. 61. 
 
 Agent cannot take advantage of defect 
 in title, 374 n. 
 
 Real estate — Continued. 
 
 Agent's contract for sale, 343 «. 
 
 Agent's power to manage, 365-6. 
 
 Agent's power to sell, 338, 346 «., 360. 
 
 Alien may hold, 458. 
 
 Alienation, what is, 466-7 ». 
 
 Appertaining; lands, 630 ». 
 
 Appurtenance, 641. 
 
 Arbitration, 659, 698, 713. 
 
 Assignment for creditors, 850, 852. 
 
 Boundary line, arbitration of, 6gg. 
 Reasonable time; account stated, 121. 
 Receipt, agent, by, 352 n. 
 Receipt and acquittance, 172 n. 
 Recognizances; abstract of title, 48. 
 Referees. See Auditors, 1009. 
 Refusal of an application, 631 n. 
 Refusing information; aider and abettor, 
 Reliction, 136-142. [63 ». 
 
 Religious societies; amotion, 560 ». 
 
 Disturbance of, 823 «. 
 Remainder-man ; adverse possession, 337. 
 Rent; action for rent received, 295 n. 
 
 Appropriation of, not an ouster, 235 n. 
 Replevin; confusion of goods, 58 n. 
 Residence, abbreviations ip stating, 20. 
 Resignation, refusing to act is not, 21. 
 Resulting trusts; adverse possession, 243. 
 Retaking property; assault, 798 n. 
 Return of service, abbreviations in, 20. 
 Revenue law, abatement in, 14. 
 
 Appraisement, 635. [239. 
 
 Reversioner; adverse possession, 238, 
 Rights; abandonment, 3. 
 
 Absolute, 45 n. 
 
 Apportionment of, 633, 
 Right of way; adverse possession, 297. , 
 Riot; unlawful assembly, 823 n. 
 Riparian rights; appurtenance, 644 n. 
 Rivers; accretion, 137. 
 Rupture, 88 »., 89 n. 
 Salary and allowance, 494 «. 
 Sales, agent, by, 355-360. 
 
 What constitutes an acceptance, 50 n. 
 Saloon, appendage to, 630 n. 
 Saw-mill; arson, 763 n. 
 School, disturbance of, 823 n. 
 School-house; arson, 763 «., 766 n. 
 Schoolmaster, assault by, 794, 804. 
 Seal; affidavits to jurat, 312. 
 
 Agency under. 337.' [by parol, 444. 
 
 Agency, appointment under, revoked 
 
 Agency of corporation, 390. 
 
 Agent's contract for sale of land, 338 n. 
 
 Agents signing instruments under, 
 385 et seq. [under, 436. 
 
 Agency, when ratification must be 
 
 Alteration of instruments, adding a 
 seal is, 508 «; defacing one is, 508 ». 
 
 Ancient documents, 566 n. 
 
 Arbitration. 650 «. , 655. 
 
 Certificate of acknowledgment, 157. 
 
 Defacement, 505 «., 508 n. 
 Seaweed; accretion, 140. 
 
 1077 
 
Secret Instructions. 
 
 INDEX. 
 
 Ttfrts. 
 
 Secret instructions; agency, 354. 
 Secret trusts; adverse possession, 242 »., 
 
 252 »., 254 n., 292. 
 Seduction; accord and satisfaction, 99 n. 
 " Select" equivalent to "appoint," 631 n. 
 Self-defence; apparent danger, 615 n. 
 
 Assault, 796. 
 Servants; agent's power to employ, 364. 
 
 Assault by neglect, 783. 
 
 Assault, 796. 
 
 Defence of master, 799. 
 Set-off; acGOunt,stated, 122. 
 
 Admiralty practice, 203. 
 
 Agency, 384 «., 425-7- 
 
 Appeal, in amount of, 620 n. 
 Sheep; injuries by dogs, 584. 
 Sheriff's deed; adverse possession, 237 ». 
 Sheriff's sale; agent cannot buy princi- 
 pal's property, 376 n. 
 Shingles; accession of materials, 53 ». 
 
 Confusion of goods, 58 «. 
 Shipping; abandonment of vessel, 2 n. 
 
 Agent's power of, 362. / 
 
 Alien cannot be master, 464. 
 
 Allotment note, 492. 
 
 Appurtenances, 644 n, 
 
 " Arrival it port," 758 n. 
 
 " At and from a port," 891 n. 
 
 Ship's husband, 348. 
 
 Ship masters, 348. 
 
 •' Voyage or voyages aforesaid," 320 «. 
 Sickness; act of God, 175. 
 Sidewalk; adverse possession, 258 n. 
 Signature; aflSdavit, 311. 
 
 Answer, 608. 
 
 Auctioneer's, 1002. 
 
 Blank, in, 519 n. 
 ' By agent, 385-393- 
 
 Certificate of acknowledgment, 156. 
 
 Torn from note, but replaced, 504 n. 
 Sketches; abstract of title, 47. 
 Slaves; accession, 51 k. 
 So as aforesaid, 320 «. 
 Social clubs; amotion, 560 «., 561 n. 
 Societies; amotion, 560 «., 561 ». 
 
 Assault during ceremonies, 781 n. 
 "Some." &^ "any," 611. 
 Spine, injury to, 88 n. 
 Spoliation, 497 n. 
 Stable; arson, 763 n. 
 Stack of hay; arson, 766 «. 
 Statute; validating acknowledgments, 161 
 
 Void, color of, title, 278 «. 
 Statute of distributions, alien may take 
 Staves; accession, 58 n. [by, 460. 
 
 Steam boiler; explosion, 84. 
 Steam whistle; accident caused by, 84. 
 Stockholder ; accord and satisfaction, 96 n. 
 
 Release of, 104 n. 
 Stolen goods; innocent custodian, 65 n. 
 Store-house; arson, 763 «. 
 Sugar-house; arson, 764 «. 
 Storm, loss by, 174. 177. 
 Stranded property; accretion, 141. 
 
 1078 
 
 Streets; adverse possession, 297. 
 
 Power to '■ open, alter, abolish, etc.," 
 496 K. 
 
 Railroad; adverse possession, 298 «. 
 Sub-agent, 394-5. 
 Subpoena, attorney's, 949 n. 
 Sub-purchaser; executing contract, 230 «. 
 Subscription to stock; agent, power of, 
 
 361. 
 Substitution, agent's power of, 369. 
 Sub-tenant; adverse possession, 240 «. 
 Succession; abstract of title, 46. 
 Suffer any act, 173 n. 
 Suicide, 92 d. 
 
 Suits at law, agent's powers as to, 367. 
 Summary application, 631 «. 
 Sunstroke; Accident insurance, 89 ». 
 Supervising power, 629 ». 
 Surety; alteration of instruments, 512 n. 
 Survey ; record of, not color of title, 278 ». 
 Survivorship,, presumption of; absence. 
 Sworn appraisers, 634 «. [42. 
 
 Taking, adverse possession, 269. 
 Tax certificate, not color of title, 278 «. 
 Tax deed, abbreviations in, 17. 
 
 Adverse possession, 284. 
 
 "Applied for," 631 «. 
 Tax sale, abstract of title, 48. 
 Tax title, adverse possession, 240 «. 
 
 Agent ca;nnot acquire, 378 «. 
 Taxes, abandonment, 2 n. 
 
 Abstract of title, 48. 
 
 Adverse possession, 234 «., 261, 284. 
 
 Aliens, 464. 
 
 Appraisement, 635. 
 
 Arrears, 719 n. 
 
 Dogs, 573 ». _ 
 
 List made by agent, 369 n. 
 
 Agent to pay, 340 ». 
 Telegraphs, agents, power of, 361. 
 Tenant by courtesy, aliens, 464. [240 «. 
 Tenant by sufferance, adverse possession. 
 Tenants in common, adverse possession. 
 Tender, accord and satisfaction, 95. [232. 
 
 "That," when "as "is equivalent to. 
 
 There afterwards, 324 n. , [778. 
 
 Threat to accuse, 143 n. 
 Timber, accession, 58 «. 
 Time, after, 321. 
 
 Afternoon, 324. 
 
 Afterward, afterwards, 324. 
 
 Appeal, 621. 
 
 Apt time, 645. 
 
 Arbitration cases, 699. 
 
 Arrest, 723, 737 «. 
 
 Computation of adverse possession. 
 
 Time aforesaid, 320, ». [267 ». 
 
 Title, abstract of, 46 
 
 Recognition of higher, destroys adverse 
 
 To use an art, 775 n. ' [possession, 229. 
 Torts, abandonment for, 3. 
 
 Accord and satisfaction, 105. 
 
 Agent's, when cannot be ratified, 434. 
 
 Employe's agent's liability, 408. 
 
Torts. 
 
 INDEX. 
 
 Words and Phrases. 
 
 Torts — Continued. 
 
 Agency, principal right of action, 428. 
 
 Alien may prosecute for, 462-3. 
 
 Assumpsit, 88S. 
 
 Attachment will not lie for, 895. 
 
 Jurisdiction of admiralty, 195. 
 Trade mark, alien may have, 462. 
 Trees, abatement of overhanging, 8 n. 
 
 Accession, 51 n., 52 n. 
 
 Occasional cutting, does not give ad- 
 verse possession, 258 n. [sion, 52 n. 
 
 Trespasser cannot acquire by acces- 
 Trespass, aider and abettor, 63 n. 
 
 Animals, 575 «., 576, 578-580. 
 
 Children, 327. 
 
 Liability for antmals, 580. 
 
 Accession, acquires no title, 53. 
 
 Accession, cannot claim by, 52 n. 
 
 Assault on, 798. 
 Trusts, j£'^ Secret Trust; Resulting]Trust, 
 
 adverse possession, 241. 
 Trustee, abstract of title, expenses of, 48. 
 
 Alien can create, 463. 
 
 Alien may be, 463. 
 
 Confusion of money, 60. 
 
 Fraud of agent of, 408. 
 Ultra Vires, corporations, 431 n. 
 Umpire, arbitration, 689^691. 
 
 Unlawful assembly, 823. 
 Usage, agency, 354, 368, 371. 
 
 Signature by agent, 390. 
 
 User, adverse, 226. 
 Usury, agent taking, 419 «. 
 
 Loan by agent, ratification, 435 «. 
 Vendor and vendee, adverse possession. 
 Vendor's lien, abstract of title, 48. [247. 
 Vessels, accession of materials, .52 n. 
 
 Mortgage of, covers new sails, 59 n. 
 Vigilance committee, assault, 782 n. 
 Vis major, confusion of goods by, 56. 
 Vote, alien cannot, 464. 
 Voter, exempt from arrest, 727. 
 Voyage or voyages, aforesaid, 320 ». 
 Wagers; assumpsit, 885. 
 Wages; assignment, 828. 
 War; agency not revoked by, 448. 
 Warehouse; arson, 763 re. 
 Warrant, arrest, 793 re. 
 Warranty; agent by, 358. 
 Waters. See Millpond. 
 
 Accident, 83. 
 
 Act of God, 174 et seq. 
 
 Adverse possession, 257 re. , 296. 
 
 Arm of the sea, 718. 
 
 Use of, does create prescription, 258 ». 
 Wharfingers; assumpsit, 886. 
 Wharfs; accretion, 136 re. 
 Whatsoever else I have in the world, 488». 
 When and so soon as she shall marry as 
 
 aforesaid, 320 re. 
 When not already done, 496 re. 
 Where the cause of action arose, 717 n. 
 Whiskey; confusion of goods, 58 n. 
 Whole amount of capital stock, 563. 
 
 Widow ; cannot claim adversely under 
 husband's executing contract, 229 n. 
 Wild animals; abandonment, 6. 
 
 Accident, 84. 
 Wild land; adverse possession, 263. 
 Wills, abbreviations in, 20. 
 
 Abstract of title, 46, 47. 
 
 Adopted child, 205-206. 
 
 " AH," construction of, 487 et seq. 
 
 Alteration of, 497 et seq.. 522. 
 
 Gives color of title, 277 re. 
 
 Informal, color of title, 287 n. 
 
 Interpretation of, 526, 535. 
 Wind, loss by, 175, 177. 
 "Within." 5'«"At,"8go. 
 Witness; acknowledgment; proof by sub- 
 scribing, 163. 
 
 Ancient documents, 566. 
 
 Arbitration, 679, 691. 
 
 Arrest, exempt from, 724. 
 
 Attorney as, 943 re., 949 ». 
 
 Defective certificate, 153. 
 Wood-pile; adverse possession, «58«. 
 Words and phrases. 
 
 A. 
 
 A material alteration, 497 n. 
 
 A railroad leading to M, i re. 
 
 A room that is improved and suitable, 
 
 A sea, I ». [l H. 
 
 A year's rent, I n. 
 
 Abandoned, 2. 
 
 Abdicate, 21. 
 
 Abide, 27. 
 
 Abide by an award, 27 ». 
 
 Abide the decision, 27 re. 
 
 Abide the judgment of the couit, 2^ re. 
 
 Ability, 28. 
 
 Able, 28. 
 
 Able-bodied, 28. 
 
 About, 32. 
 
 Abscond, 34. 
 
 Absented, 44. 
 
 Absentee, 44. 
 
 Absolute, 44. 
 
 Absolute interest, 45. [church, 45 re. 
 
 Absolute purchase of any pew in 
 
 Absolute total loss, 45 »., 185 re. 
 
 Absolutely, 45. 
 
 Absolutely entitled, 45 re. 
 
 Absolutely incompatible, 45 ». 
 
 Absolutely vested, 45. 
 
 Abstract, 45. 
 
 Abuse and misuse, 49. 
 
 Accept and receive, 50 re. 
 
 Accommodating terms, 94. 
 
 According, 107. 
 
 Account, 108. 
 
 Accountable, 135. 
 
 Accountable receipt, 135. 
 
 Accrue, 142. 
 
 Accrue and occur distinguished, 142 n. 
 
 Accrued, 142. 
 
 Accruing, 142. 
 
 Accruing or owing, 142 re. 
 
 1079 
 
Words and Phrases, 
 
 INDEX. 
 
 Words and Flirases, 
 
 Words and phrases — Continued. 
 
 Accumulated surplus, 142. 
 
 Accuse, accused, 143. 
 
 Accustomed, 143. 
 
 Accustomed way, 143 n. 
 
 Acquainted, 170, 
 
 Acquiesced, 171. 
 
 Acquired, 171. 
 
 Acquittal, 171. 
 
 Acquittance, 171. 
 
 Acquitted, 172. 
 
 Across, 172. 
 
 Act, 172. [173 n. 
 
 Act, or intention (insurance policy), 
 
 Act done (in lease), 173 n. 
 
 Act in all my business, 173 n. 
 
 Act in his official capacity, 173 «. 
 
 Act of Congress, iTi n. 
 
 Act of insolvency, 178. 
 
 Acting as attorney, 178. 
 
 Actions originally commenced, 717 n. 
 
 Actual, 184^. 
 
 Actual and constructive fraud, 184 g. 
 
 Actual and continued change of posses- 
 sion, 184 n. 
 
 Actual cash payment, 185 ». 
 
 Actual cash value, 185 «. [187 ». 
 
 Actual control, care, or management, 
 
 Actual cash, 185 n. 
 
 Actual damages, 187 «. 
 
 Actual delivery, 184 h. 
 
 Actual determination, 186 «. 
 
 Actual market value, 186 ». 
 
 Actual military service, 186 n 
 
 Actual notice, 184 h. 
 
 Actual occupation, 186 n. 
 
 Actual ouster, 186 n. 
 
 Actual possession, 184^. 
 
 Actual residence, 186 n. 
 
 Actual seizure, 187 k. 
 
 Actual settler, 186 n. 
 
 Actual total loss, 185 n. 
 
 Actually employed, 187 n. 
 
 Actually occupied, 187 n. 
 
 Actually sold, 186 n. 
 
 Addition, additional, 187. 
 
 Addition, erected to a building, 187 ». 
 
 Adequate, 189. 
 
 Adequate cause, 189 n. 
 
 Adequate crossing, 189 ». 
 
 Adhering, 190. 
 
 Adjacent, 190. 
 
 Adjoining, 190 »., 191. 
 
 Adjourn, adjournment, 192. 
 
 Adjudged, 192. 
 
 Adjudicate and settle all matters exist- 
 ing between the parties, 661 n. 
 
 Administration, 193. 
 
 Advances, 224. -■ 
 
 Advice, 307. 
 
 Affected, 307. 
 
 Afore, 319 
 
 Aforesaid, 319. 
 
 Aforethought, 321. 
 
 1080 
 
 Words and phrases — Continued. 
 
 Afoul, 321. 
 
 After, 321. 
 
 After conviction, 322 «. 
 
 After judgment, 322 «. 
 
 After the date, 323 «. 
 
 After the fact committed, 322 n. 
 
 After the passing or passage, 324 tt. 
 
 After the payment, 323 «. 
 
 After verdict, 322 ». 
 
 Afternoon, 324. 
 
 Afterward, afterwards, 324. 
 
 Afterwork, 323 ». 
 
 Against, 325. 
 
 Against her will, 325 ». 
 
 Against law, 326 ». 
 
 Against the form of the statute, 32$ ». 
 
 Against the peace of the State, 325 it'. 
 
 Aggregate, 449. 
 
 Aggregate payments, 449 n. 
 
 Aggrieved, 449. 
 
 Aggrieved person, 450. 
 
 Agister, 451. 
 
 Agreeable, 451. 
 
 Agreeably, 451. 
 
 Agreed, 451. 
 
 Agrees, 452. 
 
 Agriculture, 452. 4 
 
 Agricultural employment, 452 M. 
 
 Aid, 452, 
 
 Aid and abet, 454 u. 
 
 Aid or comfort, 453 ». 
 
 Air-tight, 454. 
 
 Alarm, 454. 
 
 Aleatory, 454. 
 
 Alienate, 466. 
 
 Alienaied, 466. 
 
 Alienation, 466. 
 
 All, 486. 
 
 All. See Any, 611. 
 
 All and every my property, 488 n. 
 
 All business, whatever kind in dispute 
 
 between parties, 661 n. 
 All causes of action, 661 n. 
 All demands, 489 «., 661 «. 
 All faults, 489 n. 
 
 All fours, 489 n. [188 «. 
 
 All future erections and additions. 
 All goods and things of every kind and 
 
 sort whatever, 488 n. 
 All his estate, 488 «. 
 All I am possessed of, 488 «. 
 All I am worth, 488 ». 
 All matters in dispute, 489 «. 
 All my accounts, 489 n. 
 All my estate, 487 «., 488 «. 
 All my estate whatsoever, 488 ». 
 All my furniture and other household 
 
 effects, 489 n. 
 All my landed, estate, 488 ». 
 All my lands. 488 «. 
 All my notes, 489 n. 
 All my personal estate, 488 «. 
 All my plantation, 488 n. 
 
Words and Fhrases. 
 
 INDEX. 
 
 Words and Phrases. 
 
 Words and phrases — Continued. 
 
 All my property of every description, 
 All my real estate, 488 ». [489 ». 
 
 All my real and personal property, 
 All my real property, 488 n. [488 «. 
 All my temporal estate, 488 ». 
 All other articles perishable in their 
 
 nature, 776 «. 
 All rights that had accrued, 142 ». 
 All the estate, both real and personal, 
 All the money, 489 ». [488 ». 
 
 All the rest and residue, 489 n. 
 All unsettled accounts, 661 ». 
 Allot. 492 ». 
 
 " Allotted " in Indian treaty, 492 «. 
 Allow, 492. 
 
 Allow or permit. 492 «. 
 Allow to give, 493 n. 
 Allowance, 493. 
 
 Allowed and recorded, 493 «. [493 n. 
 Allowing all people to pass and repass. 
 Alms, 495. 
 Along, 495. 
 Along a river, 495 ». 
 Along a wall, 495 «. 
 Along the bank, 495 ». 
 Along the high-water mark, 495 «. 
 Along the river, 496 ». 
 Along the route 496 ». 
 Along the shore, 496 «. 
 Along the street, 496 ». 
 Already, 496. 
 Already accrued, 496 n. 
 Already incurred, 496 n. 
 Also, 496. 
 Alter, 496. 
 
 Alter or amend, 496 n. 
 Alteration, 497 ». 
 Alteration of a road, 497 ». 
 Altering, 523. 
 Altering highways, 523 ». 
 Always, 523. ^ , 
 
 Amalgamate, amalgamation, 523. 
 Amercement, 555. 
 Amicable, 556. 
 Amicable action, 556 ». 
 Amicable compounders, 556 M. 
 Amicable lawsuit, 556 n. 
 Amicus curiae, 556. 
 Among, 556. 
 
 Among valuable papers, 557 ». 
 Amount, 563. 
 
 Amount in controversy, 563. 
 Amusement, 564 
 Analogous, 564. 
 Ancestor, 564. 
 Anchor, 564. 
 Anchor watch, 564 ». 
 Anchorage, 565 n. 
 And, 569. 
 
 And elsewhere, 570 n. 
 And. in addition to that, 570 «. 
 And so forth. 570 «. 
 Annexed, annexation, 590. 
 
 Words and phrases — Continued. 
 Annexed to the freehold, 591 ». 
 Announced, 591. 
 Annually appoint, 631 n. 
 Any, 611. 
 
 Any addition of building, 188 «. 
 Any article, 775 n. 
 Any creditor, 612 «. 
 Any other article or thing, 775 n. 
 Any person or persons, 612 ». 
 Any suit, 612 «. 
 Any thing, 612 «. 
 Apart, 612. 
 
 Apart from her husband, 612 n 
 Apartment, 612. 
 Apex, 613. 
 Apparatus. 614. 
 Apparent, 615. 
 Apparent danger, 615 ». 
 Apparent easements, 615 n. 
 Apparent good order, 616 «. 
 Apparent intention, 615 «. 
 Apparent ownership, 615 ». 
 Apparent possession, 615 «. 
 Apparent signs, 615 n. [616 ». 
 
 Apparent violation of rule of court. 
 Appellate and supervisory power, 
 Appellate court, 629 «. [629 «. 
 
 Appellate jurisdiction, 629 ». 
 Appendage, 629. 
 Appendant, 630 n. 
 
 Appendant and Appurtenant distin- 
 Appertaining, 630. [guished, 630 n. 
 Applicable. 631. 
 Application, 631. 
 
 Application for continuance, 631 «. 
 Application for insurance policy, 631 n. 
 Applied, 631. 
 Applied for, 631 n. 
 Apply, 631. 
 
 Apply to the use, 631 «. 
 Appoint, 631. 
 Appraise, Appraisers, 634, 
 Appraised value, 634 «. [640. 
 
 Approve, Approver, Approvement, 
 Approved, 641 n. 
 Appurtenance, 641. 
 Appurtenant, 644. 
 
 Appurtenant and appendant distin 
 Arbitrarily, 645. [guished, 630 «. 
 
 Ardent spirits, 716. 
 Are charged, 716. 
 Arise, 717. 
 
 Arise out of the same transaction. 
 Arising, 717 n. [717. 
 
 Arising during the course of the triaj. 
 Arm, Armed, 717. 
 Aromatic, 719. 
 Arraignment, 719. 
 Arrangement, 719. 
 Arrears, 719. 
 Arrears of rent, 719 n. 
 Arrears of taxes, 719. 
 Arrival, 75S. 
 
 1081 
 
Words and Phrases. 
 
 INDEX. 
 
 Words and Phrases 
 
 Words and phrases — Continued. 
 
 Arrival at port, 758 n. [758 n. 
 
 Arrival within the limits of the U. S., 
 
 Arrive and enter, 758 n. 
 
 Art. 775. 
 
 Article, Articles, 775. 
 
 Article forwarded, 775 n. 
 
 Article of food, 776 n. 
 
 Article of manufacture, 775 ». 
 
 Article or part of an article, 775 n. 
 
 Articles and necessaries, 776 n. 
 
 Articles, goods or things, 776 ». 
 
 Articles of comfort and support, 776 n. 
 
 Articles of glass, 776 n. [776 n. 
 
 Articles of gold and silver manufacture, 
 
 Articles or objects, 775 n. 
 
 Artificer, 776. 
 
 As, 777. 
 
 As aforesaid, 319 »., 777 n. 
 
 As far as possible, 778 «. 
 
 As follows, 777 ». 
 
 As for, 777 n. 
 
 As soon after as practicable, 777 n. 
 
 As soon as possible, 777 ». 
 
 As the crow flies, 777 ». 
 
 Assemble, 822. 
 
 Assembled, 823 n. 
 
 Assembly, 823. 
 
 Assent, 823. 
 
 Assize, Assizes, 881. 
 
 Assooiatg, Associates, 88r n. 
 
 Association, 881. 
 
 At, 8go et seq. 
 
 At in a bill of exchange, 893. 
 
 At an oflBce or banking house, 893. 
 
 At and from a port, 891 ». 
 
 At his death, 892. 
 
 At, in or near, 892. 
 
 At large, 891 n. 
 
 At law, 892. 
 
 At least, 892. 
 
 At merchant's risk, 89J 
 
 At once, 892. 
 
 At or near, 892. 
 
 At or upon, 892. 
 
 At sea, 893. 
 
 At that time. 893. 
 
 At the dwelling-house, 890 »., 893, 
 
 At the end of one year, 893. 
 
 At the pit's mouth, 893. 
 
 At the terminus,, 890 n. 
 
 At the trial, 892. 
 
 At the warehouse, 893. 
 
 At their death, 892. 
 
 At this date, 893. 
 
 Available, 1038. 
 
 Available capital, 1038. 
 
 Available for adjudication, IO38. 
 
 Available means, 1039. 
 
 Avails, 1039. 
 
 Avocation, 1039. 
 
 Back, 1040. 
 
 Sad, 1038. 
 
 Badge, 1041. 
 
 [1082 
 
 Words and phrases — Continued. 
 Before the argument, 716 n. 
 Brought up as aforesaid. 319 n. 
 
 Building, altering, repairing, or orna 
 menting, 523 n. 
 
 Cabin and other allowances, 493 n. 
 
 Cases arising in'a justice's court, 717 n. 
 
 Cases arising under treaties 717. 
 • Cause of action shall accru; or shall 
 have accrued, 142 n. [717 n. 
 
 Cause of action shall have arisen. 
 
 Charge and accuse, 143 n. 
 
 Child, 205 ». 
 
 Choose, equivalent to appoint, 631 «. 
 
 Cohabit, 211 «. 
 
 Contiguous, igo «., 191. 
 
 Convicted as aforesaid, 319 n. 
 
 Costs that have accrued, 142 n. 
 
 County aforesaid, 319 n., 320 n. 
 
 Dangerous weapon, 816. 
 
 Dangers of the sea, 176 n. 
 
 Deadly weapon, 816. [63,1 n. 
 
 Designate, equivalent to appoint. 
 
 Desirable, 812 «. 
 
 Dismissed agreed, 451 n. 
 
 Distribute, 640. 
 
 Done, when not already, 496 n. 
 
 Due absolutely and not on a contin- 
 gency, 45 ». [717 n. 
 
 Duties arising on goods imported, 
 
 Each, any construed s 611 n. 
 
 Either, 611 ». 
 
 Engaged in agriculture, 452 n. 
 
 Erection, alteration, or repair, 497 n. 
 
 Every. See Any, 611. [492 ». 
 
 Examine, settle and allow account, 
 
 Exclusive possession, 228 n. 
 
 Expenses appertaining to, 630 «. 
 
 Expenses of administration, 193 n. 
 
 Farmer, 776 n. 
 
 Forty days shall be allowed, 492 n. 
 
 Freight as agreed, 451 ». 
 
 From any of the places aforesaid, 320» . 
 
 From the day and year aforesaid. 
 
 Giving a false alarm, 454 n. [320 n. 
 
 Herpart aforesaid, 320 «. 
 
 I give all in Suffolk, 489 n. 
 
 I give all to my mother, 488 n. 
 
 "In." 5^^" At," 890. 
 
 In all cases, 486 «., 489 n. 
 
 In pursuance of the act, 173 «. 
 
 "Into." See "At," 890. 
 
 Is accused, 143 n. 
 
 It, 778. 
 
 It is agreed, 452 n. 
 
 It is mutually agreed, 452 n. 
 
 Judicial act, 173 n. 
 
 Living apart, 612 n. 
 
 Loaded arms, 718 n. 
 
 Lying at anchor, 565 «. 
 
 Malice aforethought, 321 «. 
 
 Material alteration, 497 n. 
 
 Merchant, 777 n. 
 
 Ministerial act, 173 n. 
 
Words and Phrases. 
 
 INDEX. 
 
 Words and Plirasea. 
 
 Words and phrases — Continued. 
 Mutilation or Spoliation, 497 n. 
 Navigable rivers, 139 n. 
 Near. See At, 890. 
 Necessary apparatus, 615 n. 
 Necessary appendages, 629 «. 
 " Nominate," equivalent to " appoint," 
 Notorious nossession, 228 u. [631 n. 
 "Occur" and " accrue" distinguished, 
 On all or either, 487 n. [142 «, 
 
 On application, 631 n. 
 Open possession, 228 n. 
 Or, 569. 
 
 Ornamenting, 523 n. 
 Other valuable articles, 776 n. 
 Otherwise acquired, 171 n, 
 Owifig or accruing, 142 n. 
 Party agrieved, 450 n. 
 Passing the act, 173 n. 
 Perils of the sea, 176 k. 
 Personally acquainted with, 171 n. 
 Public act, 173 n. 
 Public place, 318 n. 1 
 V Purposes aforesaid, 320 n. 
 Railroad with its appendages, 630 ti. 
 Receipt and acquittance, 172 «. 
 Refusal of an application, 631 n. 
 Repair, erection, or alteration, 497 n. 
 
 Words and phrases — Continued. 
 Repairing, 523 ». 
 Salary and allowance, 494 n. 
 "Select," equivalent to "appoint," 
 Set fire, 760 n. (^631 »• 
 
 So as aforesaid, 320 n. 
 " Some." See "Any," 611. 
 Suffer any act, 173 «. 
 Summary application, 631 n. 
 Supervisory power, 629 n. 
 Sworn appraisers, 634 n. 
 Taking out of the possession, 23, 
 That, 778. 
 
 There afterwards, 324 n. 
 Threat of accusation, 143 n. 
 Threat to accuse, 143 n. 
 Time aforesaid, 320 n. 
 To use an art, 775. [veyance, 92 a. 
 
 Travelling by public or private con- 
 Unlawful assembly, 823 n. 
 Voyage or voyages aforesaid, 320 re. 
 Whatsoever else I have in the world, 
 
 488 K. [aforesaid, 320 n. 
 
 When and so soon as she shall marry 
 When not already done, 496 n. 
 Where the cause of action arose, 717 n. 
 Whole amount of capital stock, 563, 
 "Within. &^" At," 890. 
 
 1083