CJornpU IGam ^t\\nii\ Slibrara Cornell university Library lit: 8035 W55 1888 KF893S.V* ,^,,,-« of evidence in c "i commentary on Iheiaw ot e ,„„„„ 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/cu31924020113142 A COMMENTARY LAW OF EVIDENCE IN CIYIL ISSUES. BY FRANCIS WHARTON, LL.D., AUTHOK or TBEATISES ON CRIMINAL LAW, MEDICAL JUKISPBTJDENCE, CONFLICT OE LAWS, AGENCY, ANB NEGLIGENCE. IN TWO VOLUMES. VOLUME II. THIBD EDITION. PHILADELPHIA: KAY & BROTHER, LAW BOOKSELLERS, PUBLISHERS, AND IMPORTERS. 1888. Entered according to Act of Congress, in the year 1877, by FEANCIS WHARTON, In the Office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1879, by FRANCIS WHARTON, In the Office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1888, by FRANCIS WHARTON, In the Office of the Librarian of Congress, at Washington. PHILADELPHIA; COLLINS PRINTING) HOTTSB, 705 Ja7ae Street. BOOK 11. MODE OF RECEIVING PROOF. (CONTINUED.) CHAPTER XI. STATUTORY EXCLUSION OF PAROL PROOF. OF FRAUDS. STATUTE Genebal Considerations. Statutory aesignments of probative force, § 850. Error in this respect of scholastic jurists, § 861. Intensity of proof cannot be arbi- trarily fixed, § 852. Belations in this respect of statute of frauds, § 853. Tkansfers oe Land. Under statute parol evidence can- not prove leases of over three years, § 854. Estates in land can be assigned only in writing, § 856. Surrender by operation of law ex- cepted, § 858. Such surrender includes acts by landlord and tenant inconsistent with tenant's interest, § 860. Mere cancellation of deed does not revest estate, § 861. Assignments by operation of law excepted, § 868. In other respects writing is essen- * tial to transfer of interest in lands, § 863. As to partnership and corporation realty, § 864. How far seal is necessary, §865. But interest in lands does not in- clude perishing severable crops and fruit, § 866. VOL. II. — 1 Fixtures part of realty, § 866 a. Agent's authority limited by stat- ute, § 868. (As to equitable modifica- tions of statute in this respect, see infra, §§ 903 et seq.) III. Sales of Goods. Sales of goods must be evidenced by writing, unless there be part payment, or earnest. Delivery and consideration must appear, § 869. Other material averments must be in writing, § 870. But may be inferred from several documents, § 872. Place of signature immaterial, and initials may sufiice, § 873. When main object is sale of goods, writing is necessary, § 874. Acceptance and receipt of goods takes sale out of statute, § 875. Acceptance by carrier or express- man is not acceptance by vendee, § 876. Partial payment may take sale out of statute, § 877. ^ IV. Guarantees. Guarantees must be in writing, §878. Statutory restriction relates to col- lateral, not original, promises, § 879. § 850.J THE LAW OF EVIDENCE. [BOOK II. In such case indebtedness must be continuous, § 880. v. Mabbiage Settlements. Marriage settlements must be in writing, § 882. VI. Agreements in fbtubo. Agreements not to be performed within a year must be in writing, § 883. VII. Wills. Wills must be executed conform- ably to statute, English Will Acts, § 884. Provisions, in this respect, of stat- ute of frauds, § 885. Distinctive adjudications under statutes, § 886. Must be acknowledged by testator, §887. This acknowledgment may be inferred, § 888. Testator may sign by a mark, or have his hand guided ; and wit^ nesses may sign by initials, and without additions, § 889. Imperfect will may be completed by reference to existing docu- ment, § 890. Revocation cannot be ordinarily proved by parol, § 891. Revocation may be by subsequent will, § 892. Proof inadmissible to show destruc- tion out of testator's presence, § 893. To revocation, intention is requi- site, and burden is on contestant, §894. Contemporaneous declarations ad- missible, § 895. Testator's act must indicate final- ity of intentions, § 896. So of cancellation and oblitera- tion, § 897. Parol evidence admissible to show that destruction was intentional or was believed by' testator, §899. Parol evidence admissible to nega- tive cancellation, § 900. VIII. Equitable Modifications oe Statute. Parol evidence not admissible to vary contract under statute, §901. Parol contract cannot be substitu- ted for written, § 902. Conveyance may be shown by parol to be in trust or in mortgage, §903. Equitable interests may be re- leased by parol, § 903 a. Performance, or readiness to per- form , may be proved by way of accord and satisfaction, § 904. Contract may be reformed on cer- tain conditions, § 905. Waiver and discharge of contract under statute can be proved by pai-ol, § 906. • Equity will relieve in case of fraud, but not where fraud consists in pleading statute, § 907. But will where statute is used to perpetuate fraud, § 908. So In case of part performance, § 909. But payment of purchase-money is not enough, § 910. Where written contract is prevent- ed by fraud, equity will relieve, §911. Parol contract admitted in an- swer may be equitably enforced, §912. IX. Conflict of Local Laws in SUCH CASE. Lex fort in such case usually pre- vails, § 913. §850. Statutory assign- ments of I. GENERAL CONSIDERATIONS. The Schoolmen, as we have already seen, indulged in a profusion of speculations as to the probative force of evi- dence ; declaring that certain kinds of evidence were to be be treated as half proof, other kinds as whole proof, while CHAP. XI.] STATUTORY EXCLUSION OF PAKOL PROOF. [§ 851. still other kinds were to be accepted with certain quali- probative fications arbitrarily preassigned, without regard to what evidence, might be the actual truth. Similar rules with respect to the force to be assigned to certain forms of evidence have been adopted by some of our legislatures ; and no doubt this is within their consti- tutional power.' But when such statutes are based upon distinctions philosophically absurd, — aa when they enact that there shall be no conviction of certain offences on circumstantial evidence, in defiance of the truth that all evidence is circumstantial, or when they assign a priori valuations to various grades of admissible evidence, — they are open to the objection of sacrificing the substance of truth to an illogical form. § 851. The error of the scholastic jurists, in this respect, may be readily explained. It should be remembered that juris- prudence, on its revival at the close of the Middle Ages, this respect was speculative rather than practical ; and that the subtile scholastic intellects of the then great juridical thinkers were em- J""^*^- ployed in constructing multitudes of imaginary cases, and in settling for each arbitrary decisions in advance. The judges by whom these rules were to be applied were usually plain men, not versed in juri- dical distinctions ; and it was better for the cause of public justiCfe, so it was argued, that decisions, thus announced before the hearing of the case, should be treated as absolute. The reasoning thus adopted was that of demonstration based on the simplest form of Aristotle : " All A. is B. ; C. is A. ; therefore C. is B. ;" or, "All •killing is malicious ; this is killing ; therefore this is malicious." Or, " No sensible father can disinherit a child ; A. is a sensible father ; therefore he cannot disinherit a child." It is scarcely necessary to exhibit the fallacy of such arguments. Either the major or the minor premise must be false. In the illustrations be- fore us, for instance, it is neither true that all killing is malicious, as there are innumerable instances of non-malicious killing ; nor that no sensible parent disinherits a child, for there are at least some cases in which disinheritance is a wise parental act. The major premises of such syllogisms, therefore, should be changed from universal to particular, as follows : " Some killings are mali- • See infra, § 1238 ; Holmes v. Hunt, Y. 541 ; Howard v. Moot, 64 N. Y. 262 j 122 Mass. 125 ; Hand u. Ballon, 12 N. Francis v. Baker, 11 R. I. 103. 3 § 852.] THE LAW OF EVIDENCE. [BOOK II. cious ;" " some sensible parents -will not disinherit." It is obvious, however, that by such a process only a probable conclusion will be reached ; a conclusion varying in probability with the extent of the major premise. If we were able to say, " Nine cases out of ten of killing are malicious," then we could conclude, supposing that we had a purely abstract case before us, that it is nine to one that the particular killing is malicious. Or if we could say, " In only one case in ten does a parent intend to disinherit a child ;" then we could conclude that it is nine to one that in the present case the parent did not intend to disinherit the child. But this is all. § 852. The idea that we can ever have an abstract case be- intenBity ^°^® "^ '^ ^ scholastic fiction, the product of acute but of proof purely speculative minds dealing with an unreal object. cannot be L, , , , .„• i • \ n arbitrarily Ihere Can be no abstract killing proved in a court oi *^''^' justice to which the predicate of abstract malice can be arbitrarily attached. All killing proved is killing in the concrete ; killing of a particular person, attracting certain animosities pecu- liarly to himself, killing by a particular person, under particular circumstances. There is no killing proved which is identical in its surroundings with any other prior killing on record ; there is no killing proved that does not present differentia distinguishing it from the abstract killing of the Schoolmen. So with regard to the disinheriting parent. No two cases of disinheritance are alike. No one case exists which does not give the disinheriting act a tint which may remove it from the category of the scholastic abstract disinher- itance. So, to return again to a trial which has been already fre- quently resorted to for illustrations, we may apply the scholastic axiom, that memory weakens with time, to the claimant in the Tich- bome case. Could any statute, without flagrant injustice, compel a jury to say that Roger Tichborne had in twenty years forgotten his French tutors, his French surroundings, and even the French language which was his boyhood's vernacular ? Or, without equal injustice, could Lady Tichborne's recognition of the claimant be treated as conclusive, because a statute, based on the scholastic maxim, should enact that parental recognition should be irrebut- table?' . Hence it may be well argued that a statute providing that certain evidence is to have a fixed and absolute valuation ■ See eupra, § 9. CHAP. XI.] STATUTE OP FRAUDS. [§ 853. can do no good, even in cases to which its principle is appli- cable, and in other cases may do much harm.' At the same time statutes making certain kinds of proof admissible or giving them primd facie force, may only greatly expedite business, but may be the means by which the administration of justice is materially advanced.' § 853. To the statute of frauds the distinctions which have been above noticed may be applied. That famous enactment goes nit- on a principle directly the reverse of the scholastic rules, in tiiis re- By those rules admissible evidence was divided into cer- statute of tain classes ; and to one class was assigned the quality *^^^"'^^- of whole proof, to another of half proof, to another of quarter proof. The statute of frauds, on the other hand, deals not with credibility, but with competency.' It says : "Now that important business is transacted largely in writing ; now that every business man can write, and has by him the means of writing ; now that the tempta- tion to perjury in fabrication of claims resting only on oral evidence grows in proportion to the growth of wealth exposed to litigation, it is essential to impose a standard which shall require written proof for the legal establishment of all important claims."* For this pur- pose the statute adopted in the reign of Charles II., at the motion of Lord Chancellor Nottingham, prescribed a series of important limitations, which, more or less modified, have been enacted through- out the United States, and of which each day's experience adds to the value. Beneficial as this statute has been in its past workings, it has become still more important in the present condition of our jurisprudence ; and we can fully accept the opinion of a learned Pennsylvania judge,' that the statute " allowing the parties in a controversy to be examined as witnesses on their own behalf ad- monishes us that it would be unwise to relax any of the rules of law arising out of the statute of limitations, and of frauds and per- juries."' ' See Smith v. Croom, 7 Fla. 81 ; ^ Paxson, J., 78 Penn. St. 49. Gardner v. O'Connell, 5 La. An. 353 ; ^ The general policy of the statute of Johnson v. Brock, 23 Ark. 282. frauds is discussed at large in the first ' Infra, § 1239 a. chapter of Reed on Statute of Frauds ; ' See Barren v. Trussell, 4 Taunton, a work as distinguished for its consci- 121 ; Rann v. Hughes, 7 T. K. 350, n. entious accuracy as for its fulness of * See Rob. on Frauds, Pref. detail. 5 § 854.] THE LAW OP EVIDENCE. [BOOK II. II, TRANSFER OF LANDS. § 854. By the statute, as originally passed, all leases, estates, and interest in lands, whether of freehold or for terms of By statute .years, which have been created by parol, and not put in parol evi- ■' ' . , , , . ... deuce can- writing, and Signed by the parties or an agent autnor- feasfof^^ ized in writing, are allowed only the force and eflFect of over three estates at will ; except leases not exceeding the term of three years from making thereof, whereon the rent re- served shall amount to two-thirds of the improved value. In the United States there is much diversity in the enactments by which this clause is now represented. " It is believed that they all, with the exception of New York, agree in this, that if the agreement to let be executory, and not consummated by the lessee's taking possession, it cannot be enforced ; if it be by parol, the statute prohibits any action upon such a contract.' If the lessee takes possession, the question arises whether by the statute the lease is binding as an agreement at common law, or the tenancy under it is a mere tenancy at will, or the lease, as such, is to be deemed void."^ A lease which does not exceed three years from the time of making is, under the English statute, valid, although parol.' But the first two sections of the English statute, says Judge Henry Reed, in his work on the Statute of Frauds, " have been literally or even substantially re-enacted in only a few states, the majority of our American Commonwealths preferring to reduce the exception in favor of short leases to those for a term not longer than one year instead of three ; while nearly all have refused the additional re- quirements as to the amount of rent to be reserved."* 1 1 Washburn's Real Prop. (4tli ed.) sey., where the statutes are examined 614 ; citing Browne, Stat. Frauds, § 37 ; in detail. Edge V. StraflFord, 1 Tyrw. 293 ; Larkin See also 1 Washburn's Real Prop. V. Avery, 23 Conn. 304; Delano u. (4th ed.) 614. See Birokhead w. Cum- Montague, 4 Cush. 42 ; Young v. Dake, mings, 4 Vroom, 44 ; Mayberry v. 1 Seld. 463. Johnson, 3 Green, 116 ; Adams v. Mo- ^ Ibid. Kesson, 53 Penn. St. 83; Morrill v, » Rawlins B. Turner, ILd. Ray. 736; Mackmau, 24 Mich. 283; Ragsdale v. Bolton V. Tomlin, 5 A. & E. 856 ; Mor- Lauder, 80 Ky. 61. As to New York rill V. Maokman, 24 Mich. 286. see Beardsley v. Duntley, 69 N. Y. < See Reed, Stat. Frauds, §§ 795 el 677. CHAP. XI.J STATUTE OP FEAUDS. [§ 856. § 855. " Estates at will," under the statute, are to be treated, so it has been argued, as tenancies from year to year ;* though more correctly, a party who, under the statute, is a tenant at will for the first year, from the fact that his lease is void, becomes a tenant from year to year as soon as his yearly rent is received.^ As tenant, he is liable on any covenants of the lease which do not re- late to the question of the length of the term avoided by the statute ; and the landlord is reciprocally liable upon such covenants.' A term of three years, to commence at a future date, does not meet the requisitions of the statute ; the three years, to be within the meaning of the statute, must begin with the date of the lease.* Where a parol lease is for a term certain, and is void under the statute, the tenancy from year to year expires with the term, with- out notice, although notice is required by statute to terminate a tenancy at will.* § 856. The third section of the statute of frauds virtually pro- vides that no estates of lands, whatever be the char- „ . . . ' Estates m acter of such estates, shall be "assigned, granted, or land can be T 1 If 1 • • ■ T -1 1 assigned surrendered, except by a wnting signed by the party, only by or by his agent duly authorized in writing, unless by ^""°s- act and operation of law. This section " has been followed more or less exactly, by the statutes of the several United States, all of which require an instrument in writing in order to the convey- ance of lands or other interests therein," which writing must be exact in its terms and description.' " And, with the exception of 1 Clayton v. Blakey, 8 T. R. 3 ; S. C. = Berrey v. Lindley, 3 M. & Gr. 498 ; 2 Smith's L. C. 97 ; Berrey v. Lindley, Doe v, Stratton, 4 Bing. 446 ; Doe v. 3 M. & Gr. 512. See other authorities Moffatt, 15 Q. B. 257 ; Tress v. Savage, in Reed, Stat. Frauds, § 804. 4 E. & B. 36 ; Beardsley v. Duntley, 2 Richardson v. Gifford, 1 A. & E. 69 N. Y. 577 ; Taylor's Ev. 916 ; Reed 56 ; S. C. 3 M. & Gr. 512. on Stat, of Frauds, §§ 810, 819, and 8 Richardson t. Gifford, 1 A. & E. cases there cited. 56 ; S. C. 3 M. & Gr. 512 ; Arden v. s odell v. Montross, 68 N. Y. 499. Sullivan, 14Q. B. 832; Beale w. San- See Reed, Stat, of Frauds, §§ 544 ders, 3 Bing. N. C. 850; Tooker v. et seq., 556 et seq., 601, 636, 766, Smith, 1 H. & N. 732. For American 1033, 1036 ; Webster v. Clark, 60 N. cases, see Reed on Stat. Frauds, §§ 807, H. 505; Piersou «. Ballard, 32 Minn.. 816. 263; Vindquest v. Perky, 16 Neb. * Rawlins v. Turner, 1 Ld. Ray. 122. To constitute a formal convey- 736. See Reed on Stat, of Frauds, § ance a statement of consideration is es- 813. sential, Phelps o. Stillings, 60 N. H. 7 § 857.] THE LAW OF EVIDENCE. [book II. three or four states, a deed under the hand and seal of the grantor is necessary, if the interest to be transferred is a freehold one."^ Where, however, acts are done by the parties which are a part performance of the contract, a court of equity will compel a spe- cific performance of the contract, wherever a fraud would be worked by vacating the contract.* § 857. It should be observed that the effect of the statute, in this section, is not to dispense with deeds when required by common law, but to require written instruments of transfer in cases which the common law did not cover ; e. g., lands and tenements in pos- session.^ It has been held, though on questionable reasoning, to preclude parol assignments and surrenders of leases for terms less than three years. ^ 505 ; Phillips v. Adams, 70 Ala. 373. But an imperfect statement may be helped out by parol. Ellis v. Bray, 79 Mo. 229. See Smith v. Freeman, 75 Ala. 285. As to N. Y. statute in respect to consideration, see Drake v. Seaman, 97 N. y. 230. That consideration need not be recited in a contract to convey, see Thornberg v. Hasten, 88 N. C. 293. That the land should be adequately described, see Sharer v. Trowlidge, 135 Mass. 500 ; Gault v. Stormond, 51 Mich. 636 ; Springer v. Kleinsorge, 83 Mo. 152 ; Till V. Freeman, 30 Minn. 389 ; Sohroeder v. Taafe, 11 Mo. Ap. 267; Bishop V. Fletcher, 48 Mich. 585. 1 3 Wash. Real Prop. 235 ; Under- wood V. Campbell, 14 N. H. 396 ; Stew- art u. Clark, 13 Met. 79; Colvin «. Warford, 20 Md. 396. See, also, Jelli- sou V. Jordon, 68 Me. 373 ; Wilson v. Black, 104 Mass. 406 ; Parsons v. Phe- lan, 134 Mass. 109. See Reed on Stat, of Frauds, § 1059. 2 Fonbl. Eq. Laussat's ed. 150 ; Neale v. Neale, 9 Wall. 1 ; Glass v. Hulbert, 102 Mass. 24; Phillips v. Thompson, 1 Johns. Ch. 131 ; Park- hurst V. Van Cortland, 14 Johns. R. 15 ; S. C. 1 Johns. Ch. 284 ; Ryan u. Dox, 34 N. Y. 312 ; Freeman v. Freeman, 43 8 N. Y. 34 ; Weir v. Hill, 2 Lans. 278 ; Syler u. Eckhart, 1 Binney, 378 ; Hill V. Myers, 43 Penn. St. 170; Riesz's Appeal, 73 Penn. St. 485 ; De Wolf v. Pratt, 42 111. 207 ; Armstrong v. Kat- tenhorn, 11 Ohio, 265 ; Peters v. Jones, 35 Iowa, 512 ; Townsend v. Sharp, 2 Overton, 192. See Thompson r. Gould, 20 Pick. 134; Wells v. Calnan, 107 Mass. 514 ; Com. v. Kreager, 78 Penn. St. 477 ; and see particularly infra, §§ 904, 909. 3 Rob. on Frauds, 248 ; Lyon v. Reed, 13 M. & W. 303 ; Rowan v. Lytle, 11 Wend. 616 ; McKinney v. Reader, 7 Watts, 123. ' Mallett V. Brayne, 2 Camp. 103; Thomson u. Wilson, 2 Stark. R. 379 ; Rowan ». Lytle, 11 Wend. 616 ; Logan V. Barr, 4 Harr. 546, and cases cited in Reed, Stat. Frauds, §§ 777 et seq. See, however, contra, McKinney v. Reader, 7 Watts, 123 ; Greider's App., 5 Barr, 422, and other oases cited in Reed, Stat, of Frauds, §§ 777, 778, where the distinctions on this topic are given and the conflicting oases noticed. As to how far an invalid assignment can operate as an underlease, see Pol- lock V. Stacy, 9 Q. B. 1033 ; Beardman 0. Wilson, L. R. 4 C. P. 57, in which CHAP. XI.] STATUTE OF FRAUDS. [§ 859. § 858. The exception " act and operation of law," to the section above noticed, has been much discussed. The surren- der, to be within the exception, so has it been held,' by'opera-'^ must be the act of the law, as distinguished from that •■'<"> of '^^ „ , ... , , , . , excepted, of the parties whose intent may be thereby overridden. A first lease, for a greater term, is surrendered by accepting a second lease, for a shorter term.^ § 859. At the same time it is now held that nothing short of an express demise will operate as a surrender of an existing lease.' But it is argued that if a lessee were to accept, in accordance with Ms contract, a second lease voidable upon condition, this, even in the event of its avoidance, would amount to a surrender of the former term ; because such second lease would pass ab initio the actual interest contracted for, though that interest would be liable last case it was held that an nnderlease of the whole term amounts to an as- signment. As to surrender by act and operation of law, see Hamerton v. Stead, 3 B. & C. 482 ; Parmenter v. Eeed, 13 M. & W. 306 ; Foquet v. Moor, 7 Ex. R. 870 ; Lynch v. Lynch, 8 Ir. Law R. 142. Infra, §§ 858 et seq. 1 Lyon V. Eeed, 3 M. & W. 306. 2 See 1 Wms. Saunders, 236, c; Hamerton «. Stead, 3 B. & C. 482 ; 5 D. & R. 478 ; Lynch u. Lynch, 6 Irish L. R. 142. See Reed, Stat, of Frauds, §§ 780, 785, 791. The exception ap- plies primarily " to cases where the owner of a particular estate had been a party to some act, the validity of which he is by law afterwards estopped from disputing, and which would not be valid if his particular estate had continued to exist. There the law treats the doing of such act as amount- ing to a surrender. Thus, if a lessee for years accept a new lease from his lessor, he is estopped from saying that his lessor had not power to make the new lease ; and, as the lessor could not do this until the prior lease had been surrendered, the law says that the ac- ceptance of such new lease is of itself a surrender of the former. So, if there be tenant for life, remainder to another in fee, and the remainderman comes on the land and makes a feoffment to the tenant for life, who accepts livery thereon, the tenant for life is thereby estopped from disputing the seisin in fee of the remainderman ; and so the law says that such acceptance of livery amounts to a surrender of his life es- tate. Again, if tenant for years accepts from his lessor a grant of a rent issuing out of the land, and payable during the term, he is thereby estopped from disputing his lessor's right to grant the rent ; and as this could not be done during his term, therefore he is deemed in law to have surrendered his term to the lessor." Lyon v. Reed, 13 M. & W. 306, per Parke, B. See, to the same effect, Schieffelin v. Carpenter, 15 Wend. 400 ; Smith v. Niver, 2 Barb. 180. Cf. discussion in Reed, Stat, of Frauds, §§ 765-7, 772, 785, 789. 3 Foquet v. Moor, 7 Ex. R. 870 ; Crowley v. Vitty, Ibid. 319. See Reed, Stat, of Frauds, §§ 507, 515, 540, 770. § 860.] THE LAW OF EVIDENCE, [book II. to be defeated at some future period.* But a lease will not, under the exception, be held to be surrendered by the acceptance of a void lease, which creates no new estate whatever,^ or even the ac- ceptance of a voidable lease, which being afterwards made void, contrary to the intention of the parties, does not pass an interest according to the contract.^ Nor is a surrender worked by the single circumstance of a tenant entering into an agreement to pur- chase the leased estate ;* though this may of course be done by written limitations, express or implied." But where a tenant, in pursuance of a license to quit, gives up possession, which is resumed by the landlord, this will be deemed a surrender by operation of law, which will preclude the landlord from recovering rent falling due after his resumption of possession. ° § 860. An important extension of the old construction of " opera- tion of law" has taken place in late years. Suppose the landlord, with the tenant's assent followed by the ten- ant's surrender of the estate, conveys the leased estate to a stranger ; is the tenant, in the teeth of such a con- veyance, in which he himself participated, to continue in the enjoyment of his lease ? In equity, unquestionably, he would be precluded from further intermeddling with the estate.' Nor, such is now the better opinion, can he Surrender by opera- tion of law now held to include acts done ty land- lord and tenant in- consistent with ten- ant's inte- rest. 1 Taylor's Ev. § 920 ; citing Roe v. Abp. of York, 6 East, 102 ; Doe v. Bridges, 1 B. & Ad. 847, 856 ; Doe w. Poole, 11 Q. B. 716, 723 ; Fulmerston V. Steward, Plowd. 107 a, per Bromley, C. J. ; Co. Litt. 45 a ; Lloyd u. Greg- ory, Cro. Car. 501 ; Whitley v. Gtough, Dyer, 140-146. See Jackson v. Butler, 8 Johns. 394 ; Rowan v. Lytle, 11 Wend. 616 ; Reed, Stat, of Frauds, §§ 785, 791. 2 Roe V, Abp. of York, 6 East, 86, explained by Abbott, C. J., in Hamer- ton V. Stead, 3 B. & C. 481, 482 ; Lynch V. Lynch, 6 Ir. Law R. 142, per Lefroy, B. ; Wilson v. Sewell, 4 Burr. 1980 ; Davisou V. Stanley, Ibid. 2213, per Ld. Mansfield. » Doe V. Poole, 11 Q. B. 713 ; Doe v. Courtenay, 11 Q. B, 702-722 ; overrul- ing Doe V. Forwood, 3 Q,. B. 627. 10 * Doe v. Stanton, 1 M. & W. 695, 701 ; Tarte v. Darby, 5 M. & W. 601. See Reed, Stat, of Frauds, § 818. 5 Ibid. See Donellan v. Read, 3 B. & Ad. 905 ; Lambert v. Norrls, 2 M. & W. 335. 6 Grrimman v. Legge, 8 B. & C. 324 ; 2 M. & R. 438, S. C; Dodd v. Acklom, 6 M. & Gr. 672 ; PhenS v. Poplewell, 31 L. J. C. P. 235 ; 12 Com. B. N. S. 334, S. C. ; Whitehead v. Clifl'ord, 5 Taunt. 518. See Canuan v. Hartley, 19 L. J. C. P. 323 ; 9 Com. B. 634, S. C. ; McKinney v. Reader, 7 Watts, 123 ; Lamar v. MoNamee, 10 Gill. & J. 116 ; Browne on Frauds, § 55 ; Reed, Stat, of Frauds, §§ 772, 786, 792 et seq. See Lounsberry v. Snyder, 31 N. Y. 514. ' McDonald u. Pope, 9 Hare, 705 ; Eeed, Stat, of Frauds, § 774. CHAP. XI.] STATUTE OF FRAUDS, [§ 861. at law be held to have retained his rights. The lease is surrendered by operation of law.* § 861. However it may be in equity, it is settled that at law the cancellation of a deed, even though accompanied by a ^^^ surrender of the land, cannot, under the statute of frauds, ceiiation of operate to revest, even by agreement of parties, the not revest estate, unless the solemnities prescribed by the statute *^''^'^- be adopted.* Nor can we infer surrender merely from the deed being found cancelled in the possession of the lessor.^ But where a deed has not been recorded, and the grantee wishing to sell the estate, delivers it up and cancels it, and the grantor executes a new deed to the purchaser, the title of the latter is good.^ A written contract, however, for the sale of real estate, may be rescinded by parol.' 1 Reed, Stat, of Frauds, §§ 770, 772, 774, 780, 782, 789, 790 et seq. ; Thomas V. Cook, 2 Stark. R. 408 ; S. C. 2 B. & A. 119 ; 8 B. & C. 732 ; Dodd c. Aok- 1am, 6 M. & Gr. 672 ; Walker v. Rich- ardson, 2 M. & W. 882 ; Grimman v. Legge, 8 B. & C. 324 ; Davison v. Gent, 1 H. & N. 744 ; Reese v. Williams, 2 C, M. & R. 581 ; Reeve v. Bird, 4 Tyr. 612 ; Niokells o. Atherston, 10 Q,. B. 944; Lynch v. Lynch, 6 Irish L. R. 131 ; Hesseltine v. Seavey, 16 Me. 212 ; Ran- dall V. Rich, 11 Mass. 494 ; Bedford v. Terhune, 30 N. J. 453 ; Lounaberry v. Snyder, 31 N. Y. 614 ; Smith v. Niver, 2 Barb. 180 ; Whitney v. Myers, 1 Duer, 266; MoKinney v. Reader, 7 Watts, 123 ; Lamar v. McNamee, 10 Gill. & J. 116. See qualifying remarks of Lord Wensleydale, in Lyon o. Reed, 13 M. & W. 309, and comments thereon in Taylor's Ev. § 926; Reed on Stat, of Frauds, §§ 765, 789 etseq. See, as fur- ther doubting, Thomes v. Gardner, 39 N. J. L. 530. 2 See Magennis v. MacCuUough, Gilb. Eq. R. 236 ; Roe v. Abp. of York, 6 East, 86, 101 ; Wootley v. Gregory, 2 Y. & J. 536 ; Bolton u. Bp. of Carlisle, 2 H. Bl. 263, 264 ; Doe v. Thomas, 9 B. & C. 288 ; 4 M. & R. 218, S. C. ; Walker v. Richardson, 2 M. & W. 882 ; Natchbolt v. Porter, 2 Vern. 112 ; Rob. on Frauds, 251, 252 ; Ibid. 248, 249 ; Browne on Frauds, §§ 41, 214 ; Butler V. Gardner, 8 Johns. R. 394 ; Anderson V. Anderson, 4 Wend. 474 ; Hunter v. Page, 4 Wend. 585 ; Rowan v. Lytle, 11 Wend. 616. 3 See Bolton v. Bp. of Carlisle, 2 H. Bl. 263, 264 ; Walker v. Richardson, 2 M. & W. 892 ; Ward v. Lumley, 5 H. & N. 87 ; Reed, Stat, of Frauds, §§ 782, 789. * Browne on Frauds, § 60; citing Holbrook v. Tirrell, 9 Pick. 105 ; Nason u. Grant, 21 Me. 160 ; Mussey v. Holt, 4 Post. 248 ; Farrar v. Farrar, 4 N. H 191 ; Dodge v. Dodge, 33 N. H. 487 Faulks V. Burns, 1 Green Ch. (N. J.) 250 ; Mallory v. Stodder, 6 Ala. 801 Holmes v. Trout, 7 Peters, 171. Contra. Gilbert o. Bulkley, 5 Conn. 262 ; Ray- nor V. Wilson, 6 Hill, 469. See Reed, Stat, of Frauds, §§ 782-3. 5 Boyce v. MoCulloch, 3 W. & S. 429 infra, § 1017. See Reed, Stat, of Frauds, §779. 11 § 863.] THE LAW OF EVIDENCE. [book II. Assign- ments by operation of law ex- cepted by statute. § 862. Assignments, as well as surrenders, may take place by opei-ation of law, and thus be excepted by the statute. A lessor, for instance, dies intestate, in which case the reversion vests in his heir-at-law ; or a lessee dies intes- tate, and the lease vests in his administrator, by opera- tion of law. Even an executor de son tort, so far as concerns himself, may be treated as the assignee of a lease ; and in cases of this class, when an action is brought against the heir, or administrator, or executor de son tort, it has been held enough to charge in the declaration that the reversion or lease respectively came to the' defendant " by assignment thereof then made."* A similar assignment, by operation of law, passes, on a woman's marriage, her chattels real to her husband. So when any person is adjudged a bankrupt, his property, whether real or personal, present or future, vested or contingent,^ becomes vested, without any deed of assign- ment or conveyance, in the statutory assignees. It is, however, settled, that a parol assignment by a sheriff of leasehold premises, taken in execution under & fieri facias, is void at law, though the assignee has entered and paid rent to the head landlord.^ § 863. By the fourth section of the statute certain solemnities of writing are necessary to the transfer of an " interest in lands ;" and multitudinous are the adjudications as to what this term includes.* The statute has been held to include contracts to abate a tenant's rent ;' to assign rent ;' to submit to arbitration the question whether a lease shall be granted ;^ to assign an equitable interest ;* In other respects writing is essential to transfer interest in lands. 1 Paull V. Simpson, 9 Q. B. 365 ; De- risley v. Custanoe, 4 Tr. 75. 2 See Stanton v. Collier, 3 E. & B. 274 ; Beckham v. Drake, 2 H. of L. Cas. 579 ; Rogers u. Spence, 12 CI. & Fin. 700 ; Herbert v. Sayer, 5 Q. B. 965 ; Jackson v. Burnham, 8 Ex. R. 173. 3 Doe V. Jones, 9 M. & W. 265 ; S. C. 1 Dowl. N. S. 352. * See Bingham's Real Estate, 244 et seq.; White v. White, 1 Harr. (N. J.) 202 ; Keeler u. Tatnell, 3 Zabr. 62 ; Hall V. Hall, 2 MoC. Ch. 269 ; Madi- gan «. Walsh, 22 Wis. 501. See dis- cussion in Reed, Stat, of Frauds, §§ 12 704 et seq. This clause is not in the Texas statute. Anderson v. Powers, 69 Tex. 213. 5 O'Connor v. Spaight, 1 Seh. & Lef. 306. See Taylor's Ev. § 948 ; Reed, Stat, of Frauds, § 555. « Whitting, in re, 27 Wr. 385. ' Walters v. Morgan, 2 Cox Ch. R. 369. See Reed, Stat. Frauds, §§ 524, 629, 537, 749. 8 Infra, § 903 a ; Smith v. Burnham, 3 Sumu. 435 ; Richards u. Richards, 9 Gray, 313 ; Simms v. Kilian, 12 Ired. L. 252. And so as to equity of redemp- tion. Odell V. Montross, 68 N. Y. 499 ; CHAP. XI.] STATUTE OF FRAUDS. r§ 863, to assign " squatter's rights ;"* to assign an interest in a salt well,* and in an oil well ;' to exchange land for labor ;* to relinquish a tenancy, and let another party into possession for the residue of a term ;* to readjust a boundary ;* to permit the profits of a clergy- man's living to be received by a trustee f to become a partner in a colliery, which was to be demised by the partnership upon royal- ties ;' to transfer an easement ;' to take furnished lodgings ;'" to sell a pew in a church for an unlimited period ;" to reserve a shed from the operation of a deed ;'* to sell brick being part of a burned house ;'^ to grant,^^ or otherwise to transfer to another a mortgagor's equity of redemption ;'* to reconvey if purchase-money is not paid, Cowles V. Marble, 37 Mich. 168. See Reed, Stat. Frauds, §§ 72-3 et seq., 975, 998, 1015, 1033. 1 Hayes v. Skidmore, 27 Ohio St. 331; Eeed, Stat, of Frauds, §§ 377, 725. 2 McDowell V. Delap, 2 Marsh. 33. 8 Henry v. Colby, 3 Brewst. 175. ' Bowling V. MoKenney, 124 Mass. 478. See Reed, Stat. Frauds, §§ 621, 732. ° Buttemere v. Hayes, 5 M. & W. 456 ; 7 Dowl. 489, S. C. ; Smith v. Tombs, 3 Jur. 72, Q. B. ; Cocking v. Ward, 1 Com. B. 85g ; Kelly v. Web- ster, 12 Com. B. 283 ; Smart v. Hard- ing, 15 Com. B. 652 ; Hodgson v. John- son, 28 L. J. Q. B. 88 ; E., B. & E. 685, S. C. ; Reed, Stat, of Frauds, §§ 623, 625, 695, 718, 740, 742, 792. See Bacon <••. Parker, 137 Mass. 309. But not, it seems, an expectancy in a parent's estate. Galbraith v. MoLain, 84 111. 379 ; Reed, Stat, of Frauds, §§ 666, 726. 6 Sharp w. Blankenhip, 67 Cal. 441. ' Alchin V. Hopkins, 1 Blng. N. C. 102 ; 4 M. & So. 615, S. C. 8 Caddick v. Skidmore, 2 De Gex & J. 52, per Lord Cranworth, Ch. ; 27 L. J. Ch. 153, S. C. ; Allen v. Richard, 83 Mo. 55. 716; " R. V. Salisbury, 8 A. & E. Cook V. Stearns, 11 Mass. 533. See Morse v. Copeland, 2 Gray, 302 ; Foot V. Northampton Co., 23 Conn. 223 ; Selden v. Canal Co., 29 N. Y. 639 ; Reed, Stat, of Frauds, §§ 720, 722. Under this head falls a grant of a right to shoot and carry away game. Webber v. Lee, 9 Q. B. D. 315. 10 Edge V. Strafford, 1 C. & J. 391 ; 1 Tyr. 293, S. C. ; Inman u. Stamp, 1 Stark. R. 12, per Ld. EUenborough ; Mechelen ... Wallace, 7 A. & E. 49 ; 2 N. & P. 224, S. C. ; Vaughan v. Han- cock, 3 Com. B. 766 ; Reed, Stat, of Frauds, §§ 812, 815. " Baptist Ch. v. Bigelow, 16 Wend. 28. 12 Detroit R. R. v. Forbes, 30 Mich. 165. 13 Meyers v. Schemp, 67 111. 469. 1* Massey v. Johnson, 1 Ex. R. 255, per Rolfe, B. See Toppin v. Lomas, 16 Com. B. 145 ; Kelley v. Kelley, 54 Mich. 30 ; Reed, Stat, of Frauds, § 514. 16 Scott V. McFarland, 13 Mass. 309 ; Marble v. Marble, 5 N. H. 374 ; Kelley V. Stanberry, 13 Ohio, 408. See Pom- eroy v. Winship, 12 Mass. 514 ; Jun- kins V. Lovelace, 72 Ala. 303. 13 § 863.] THE LAW OF EVIDENCE. [book II. or on other contingencies ;^ to procure, as a broker, the sale of a lease ;* to an agreement by which B. is to take half, at a fixed price, of lands to be purchased by A.' But, as we shall see more fully hereafter, the statute has been held not to include an equi- table mortgage by the deposit of title-deeds ;* or a sale of a house about to be put on rollers for removal ;° or a subsequent collateral agreement, modifying terms of payment or identifying property, after the title has vested in the vendee ;* or an agreement for contingent profits in a real estate speculation ;'' or a collateral agreement by a lessee to pay a percentage on money laid out by the landlord on the premises,' or other collateral agreement ;' or a contract relating to the investigation of a title or boundaries of land ;'" or an agreement for board and lodging, no particular rooms being demised ;" or a license for the enjoyment of an easement or 1 Gallagher v. Mars, 50 Cal. 23. See Wilson V. McDowell, 78 111. 514 ; Grover V. Buck, 34 Mich. 319 ; Richardson v. Johnson, 41 Wis. 100 ; Reed, Stat, of Frauds, §§ 493, 737. 2 Horsey v. Graham, L. R. 5 C. P. 9 ; 39 L. J. C. P. 58, 5. C. 3 Durphy v. Ryan, 116 U. S. 491. » Russell V. Russell, 1 Br. C. C. 269 ; 12 Ves. 197 ; Hall v. McDuflf, 24 Me. 311 ; Hackett ;;. Reynolds, 4 R. I. 612 ; Welsh V. Usher, 2 Hill Ch. 166 ; Chase V. Peck, 21 N. Y. 584 ; Keith v. Horner, 32 111. 526 ; Wilson v. Lyon, 51 111. 530 ; Gothard v. Flynn, 25 Miss. 58 ; Jarvis V. Butcher, 16 Wis. 307. But see Bow- ers V. Oyster, 3 Penn. R. 239 ; Hale v. Henrie, 2 Watts, 143 ; Strauss's Ap- peal, 49 Penn. St. 358 ; Vanmeter v. McFaddin, 8 B. Hon. 435. See Reed, Stat, of Frauds, §§ 783, 1042, 1043, 1051. 5 Long V. White, 42 Ohio St. 59. See Rogers v. Cox, 96 Ind. 157. 6 Negley v. Jeffers, 28 Ohio St. 90 ; McConnell u. Brayner, 63 Mo. 461 ; infra, § 1026. As to how far the statute precludes subsequent varia- tion, see Cummings v. Arnold, 3 Met. 14 (Mass.) 486 ; Stearns v. Hall, 9 Cush. 31 ; C. Allen, J., Hastings v. Lovejoy, 140 Mass. 265. And see infra, §§ 901, 927 ; Reed, Stat, of Frauds, §§ 440, 458, 461, 462, 463. ' Mahagan v. Mead, 63 N. H. 130 ; Spencer v. Lawton, 14 R. I. 494 ; Bab- cock V. Reed, 99 N. Y. 609 ; Benjamin <.■. Zell, 100 Penn. St. 33 ; Everhart's App., 106 Penn. St. 349 ; Carr v. Leavitt, 54 Mich. 540 ; Snyder u. Wolford, 33 Miito. 175. 8 Hoby V. Roebuck, 7 Taunt. 157. See Scott v. White, 71 111. 289 ; Gaf- ford V. Stearns, 51 Ala. 434. See Reed, Stat, of Frauds, §§ 662, 672. s McGinnis v. Cook, 57 Vt. 56 ; Bab- cock V. Reed, 50 N. Y. S. C. 126 ; Mo- MuUin u. Sanders, 79 Va. 356 ; Little V. MoCarter, 89 N. C. 233 ; Hale v. Stuart, 76 Mo. 20 ; Coe v. Griggs, 76 Mo. 619. '» Jeakes v. White, 6 Ex. R. 873 ; Sherrill v. Hagan, 92 N. C. 345. " Wright V. Stavert, 29 L. J. Q. B. 161 ; 2 E. & E. 721, 5. C. ; White v. Maynard, 111 Mass. 250. See Reed, Stat, of Frauds, § 758. CHAP. XI.] STATUTE OF FRAUDS. [§ 864. similar right ;* or an agreement for the moving of a watercourse ;^ or an agreement, between two contiguous owners, to adjust an am- biguous boundary line f or a contract that an arbitrator shall de- termine the amount of damages sustained by a party, in consequence of a road having been made through his lands.* On the Pacific coast, under the usage which has there grown up of transferring mining claims by parol, it has been held that the transfer of such claims is not within the statute.* But in California such transfers must now, by statute, be in writing.® § 863 a. Fixtures, when of a permanent character affixed to the land, are an interest in land under the statute. As to whether a particular kind of fixture — e. g., gas fixtures — are of this character depends, in part, on local usage.' When put on distinctively as personalty they may be sold as personalty.' Hence, also, permissions to tenants to put on and take off fixtures may be by parol.* § 86-1. The statute has been held, in England, not to cover shares in a company possessed of real estate, if the company be ^^ ^^ j^ incorporated by statute or by charter, and the real nersWp property be vested in the corporation, who are to have poration the sole management of it. In such case, the shares of "^^^ ■*'■ the individual proprietors will be personalty, and will consist of nothing more than a right to participate in the net produce of the property of the company.'" In this country the same distinction is 1 1 Washburn's Real Prop. 4th ed. s Gollen v. Fett, 30 Cal. 184 ; Melton 639 ; Angell on Watercourses, § 168 ; v. Lambert, 51 Cal. 258 ; Reed, Stat. Browne, Stat. Frauds, § 232 ; Johnson of Frauds, § 706. V. Wilkinson, 139 Mass. 3. ' In Philadelphia gas-burners are 2 Hamilton, etc., Co. u. R. R., 29 Ohio treated as fixtures. Jarechi v. Phil- St. 341 ; Reed, Stat, of Frauds, § 758. harmonic Society, 79 Penn. St. 403. 3 Taylor v. Zepp, 14 Mo. 482 ; Turner s See Lee u. Gaskell, L. R. 1 Q. B. V. Baker, 64 Mo. 218. See Boyd v. 700 ; Hallen v. Rundle, 1 Cr. M. & Ros. Graves, 4 Wheat. 513. 274; Elwes v. Mawe, 2 Sm. Lead. Ca. * Gillanders v. Ld. Rossmore, Jones 177 ; Hey v. Bruner, 61 Penn. St. 87. Ex. R. 504 ; Griffiths u. Jenkins, 3 New 9 Carter «. Salmon, 43 L. T. Rep. R. 489, per Crompton and Shee, JJ., in 490 ; Lombard v. Ruggles, 9 Me. 67 ; Bail Ct. For the English references O'Leary v. Delaney, 63 Me. 584 ; Du- ahove, see Taylor, § 948. bois v. Kelly, 16 Barb. 507. See Trappes 5 Kinney v. Mining Co., 4 Sawy. 451 ; v. Barter, 2 C. & M. 163. Table Mountain Co. v. Stranahan, 20 » Taylor's Ev. § 949 ; Bligh v. Brent, Cal. 208 ; Antoine v. Ridge Co., 23 Cal. 2 Y. & C. Ex. R. 268 ; Bradley v. 222; Savage w. Stone, 1 Utah, 35. Holdsworth, 3 M. & W. 422; Hibble- 15 § 864.] THE LAW OF EVIDENCE. [book II. in most states maintained." It has been further ruled that the statute does not extend to the transfer of interests in unincorporated companies, in any cases where trustees are seised of the real estate in trust to use it for the benefit of the shareholders, and to make profits out of it (to the enjoyment of which the rights of the stock- holders are restricted),^ as part of the stock in trade. On the other hand, if the trustees hold the real estate in trust for themselves, and for co-adventurers, present and future, in proportion to their number of shares, then transfers of shares in such trust cannot be made without writing.' It has been further ruled that the question, under which of these two species of trusts the lands of any particu- lar company may be held, is one of fact, to be determined in each case by the jury.* So far as concerns partnerships, the English rule, and that obtaining in some jurisdictions in this country, is that the existence of a partnership, which holds or is to hold lands, may be proved by parol, and that when a partnership is thus established, it may be shown by parol that its property consists of land." But white V. M'Morine, 6 N. & W. 214, per Parke, B. ; 2 Rail. Ca. 67, S. C. ; Humble v. Mitchell, 11 A. & E. 205 ; 2 Rail. Ca. 70, S. C. ; Baxter v. Brown, 7 M. & Gr. 216, per Tindal, C. J.; Hilton V. Geraud, 1 De Gex & Sm. 187 ; Watson V. Spratley, 10 Ex. R. 237, per Martin, B., 244, per Parke, B. ; Bul- mer v. Norris, 9 Com. B. N. S. 19. See Edwards v. Hall, 25 L. J. Ch. 82 ; 6 De Gex, M. & G. 74, 5. C. (overruling Ware v. Cumberledge, 20 Beav. 503) ; Holdsworth v. Davenport, 3 Ch. D. 185 ; and see, also, Powell v. Jessopp, 18 Com. B. 336, and Taylor v. Linley, 2 De Gex, F. & J. 84 ; Pennybaoker V. Leary, 65 Iowa, 220 ; Entwistle v. Davis, L. R. 4 Eq. 275 ; Liudley on Partnership, Bk. I. oh. 4 ; Reed, Stat. of Frauds, § 727. • Tappan v. Bank, 19 Wall. 499 ; Wheelock v. Moulton, 15 Vt. 519 ; Tip- pets V. Walker, 4 Mass. 595 ; Wells v. Cowles, 2 Conn. 514 ; Smith v. Tarlton, 2 Barb. Ch. 336 ; Chester v. Diokerson, 64 N. Y. 1 ; S. C. 52 Barb. 349 ; Brown- 16 son V. Chapman, 63 N. Y. 625 ; Barks- dale V. Finney, 14 Grat. 356 ; Fraser V. Child, 4 E. D. Smith, 153. See Vaupell V. Woodward, 2 Sandf. Ch. 143, and cases cited in Reed, Stat, of Frauds, § 728. ' Watson V. Spratley, 10 Ex. R. 222. See Myers v. Perigal, 2 De Gex, M. & G. 599 ; Walker v. Bartlett, 18 Com. B. 845 ; Hayter v. Tucker, 4 Kay & J. 243 ; Bennett v. Blain, 15 Com. B. N. K. 518, S. C. ; Freeman v. Gainsford, 34 L. J. C. P. 95 ; Entwistle v. Davis, 36 L. J. Ch. 825 ; Law Rep. 4 Eq. 272, S. C. ; Wells v. Mayor, etc., L. R. 10 C. P. 402. ' Ibid. ; Baxter v. Brown, 7 M. & Gr. 198 ; Boyce v. Green, Batty, 608. See Morris v. Glynn, 27 Beav. 218 ; Black V. Black, 15 Ga. 445. * Watson V. Spratley, 10 Ex. R. 222, per Parke and Alderson, BB. 5 Supra, § 78 ; Lindley on Partner- ship, Bk. I. ch. 4 ; Reed, Stat. Frauds, § 727 ; Dale u. Hamilton, 5 Hare, 369 ; 2 Ph. 266 ; Essex v. Essex, 20 Beav. CHAP. XI.] STATUTE OF FRAUDS. [§ 865, in other states, partnership contracts must be in subordination to the statute.^ But though land acquired by a partnership for part- nership purposes may pass as personalty, so far as concerns parties and privies, the mere agreement to form a partnership to deal in land cannot, in some jurisdictions, be enforced, or damages recovered for its infringement, unless it be in writing.'' We may, in addition, notice, that scrip and shares in joint-stock companies, whether incor- porated or unincorporated, are not " goods, wares, and merehan- within the seventeenth section of the act.* § 865. So far as concerns terms for years, the better Under stat- ntPRPfllifl opinion is, that a writing without seal is suiEcient for not neces- transfer.* This is clearly the case with transfers of exist- Ssftr of ing leases." And the better opinion is, that if a writing *^"''" ^°l , ,,..,, , years ; but is sealed it will operate as a lease, though not signed.* writing ie. 449 ; Nutt v. Bank, 4 Cranch C. C. 102 ; Buflfum V. Buffum, 49 Me. 23 ; Dyer v. Clark, 5 Meto. 562; Button v. Wood- man, 9 Cuah. 255 ; Fall River Co. v. Borden, 10 Cush. 471; Bunnel v. Talntor, 4 Conn. 573 ; Chester v. Diok- erson, 54 N. Y. 7 ; S. C, 52 Barb. 349 ; Personette v. Pryme, 34 N. J. Eq. 29 ; Everhart's App., 106 Penn. St. 349 ; Morrill v. Colehour, 82 111. 625 ; Rich- ards V. Grinnell, 63 Iowa, 44 ; Penny- ball V. Leary, 65 Iowa, 260 ; Falkner v. Hunt, 73 N. C. 573 ; Evans o. Green, 23 Miss. 274 ; Thomas v. Hammond, 47 Tex. 49. 1 Sedam «. Shaffer, 5 W. & S. 529 ; Le Fevre's App., 125 ; Rowland v. Booser, 10 Ala. 695 ; Parkfir v. Bodley, 4 Bibb, 103 ; Kidd v. Carson, 33 Md. 37 ; Wheatley v. Calhoun, 12 Leigh, 272. See other cases In Reed, Stat. Frauds, § 727. 2 Smith u. Burnham, 8 Sumn. 460. See Linscott v. Mclntire, 15 Maine, 201. » Humble v. Mitchell, 11 A. & E. 205 ; 2 Rail Ca. 70, S. C ; Hibblewhite V. MoMoriue, 6 M. & W. 214, per Parke, B. ; Knight v. Barber, 16 M. & W. 66 ; Tempest v. Kllner, 3 Com. B. 249; Bowlby V. Ball, Ibid. 284 ; Dunouft v. VOL. II. — 2 Albrecht, 12 Sim. 189 ; Watson v. Spratley, 10 Ex. R. 222. See Reed, Stat. Frauds, §§ 234, 301. * Maule, J., Aveline v. Whisson, 4 M. & Gr. 80 ; Mayberry o. Johnson, 3 Green (N. J.), 116; 4 Greenl. Cruise, 34 ; Roberts on Frauds, 249 ; Browne, Stat, of Frauds, § 7 ; Reed, Stat, of Frauds, §§ 510, 730, 803 et seg. In Pennsylvania a seal has been held not to be necessary to a lease of land under ground-rent. Cadwalader V. App, 81 Penn. St. 194. That equi- table effect will be given to unsealed writings, see supra, §§ 692 et seg. 5 Farmer v. Rogers, 2 Wils. 26 ; Beck V. Phillips, 5 Burr. 2827 ; Conrtail v. Thomas, 9 B. & C. 288 ; Holliday v. Marshall, 7 Johns. R. 211 ; Allen v. Jaquish, 21 Wend. 628 ; Reed, Stat', of Fraiuds, §§ 730, 766, 767 et seg., 1064. 8 Aveline v, Whisson, 4 Man. & Gr. 801 ; Cherry v. Hemming, 4 W., H. & G. 631 ; Coooh v. Goodman, 2 A. & E. (N. S.) 580. See Wood v. Goodridge, 6 Cush..ll7; Gardner v, Gardner, 5 Gush. 483. As to general rules in re- spect to seals, see supra, §§ 692-3. As to conflicting authorities on this point, see Reed, Stat. Frauds, §§ 803, 1064. 17 § 866.] §866. THE LAW OF EVIDENCE. [book II. " Interest in lands" does not Include Much discussion has arisen as to what products of the soil are included, when on the soil, under the term " in- terest in lands," and what are not. It is conceded on all sides that the term does not include fruits, which un|ath°e"fd from the nature of things are perishable, and which, if fruit, or jj J removed immediately, are valueless. Hence it is crops an- ** , . Dually re- that a Contract for the sale of such fruit is not a contract ™u7oth'er^ for any interest in lands, though the fruits are to be re- Tuchprod- moved from the soil by the purchaser. i The same dis- uceofthe tinction is applicable to all ephemeral and transitory soil as IS '^'^ T 11 1. 1 -L capable of produce of the earth, reared annually by labor and ex- attach"™ pense, and in actual mature existence at the time of the menttoit. gQjjtract — as, for instance, a ripened crop of corn,^ or hops,' or potatoes,^ or peaches," or turnips' — though the purchaser is to harvest or dig them.'' On the other hand, when the produce to be sold is not, from its perishable condition while on the soil, in a state which requires its immediate removal, if it is to be of value, then, under the statute, it is an interest in lands.' Hence the stat- 1 Thayer v. Rock, 13 Wend. 53. See Browne, Stat. Frauds, § 241 ; Reed, Stat. Frauds, § 707 ; Parker v. Staniland, 11 East, 362. So as to crude turpentine. Lewis V. McNatt, 65 N. C. 65. As questioning position in text, see Rod- well V. Phillips, 9 M. & W. 501. 2 See Jones v. Flint, 10 A. & E. 753 ; 2 P. & D. 594, S. C. 3 Per Parke, B., in Rodwell v. Phil- lips, 9 M. & W. 503, questioning Wad- didgton V. Bristow, 2 B. & P. 452. See, also. Graves v. Weld, 5 B. & Ad. 119, 120 ; Reed, Stat. Frauds, §§ 707, 709. ' Sainsbury v. Matthews, 4 M. & W. 343 ; 7 Dowl. 23, 5. C. ; Evans k. Rob- erts, 5 B. & C. 829 ; 8 D. & R. 611 ; Warwick v. Bruce, 2 M. & Sel. 205; Reed, Stat. Frauds, § 707 et seq. - Purner v. Piercy, 40 Md. 212 ; Reed, Stat. Frauds, § 711. s Dunne v. Ferguson, Hayes, 540 ; Emmerson v. Heelis, 2 Taunt. 38, con- tra, must be considered as overruled by Evans f. Roberts, 5 B. & C. 833, 834, 18 and by Jones v. Flint, 10 A. & E. 759. See Reed, Stat. Frauds, § 708. ' Mr. Taylor questions whether the same rule would apply to contracts re- specting the sale of teasles, liquorice, madder, clover, or other crops of a like nature, which do not ordinarily repay the labor by which they are produced within the year in which that labor is be- stowed, and consequently, as it seems, do not fall within the law of emble- ments. Taylor's Ev. § 952 ; citing Graves i. Weld, 5 B. & Ad. 105, IIS- 120 ; 1 Sug. V. & P. 156. 8 See Bostwick v. Leach, 3 Day, 476 ; Brown v. Sanborn, 21 Minn. 402 ; Reed, Stat. Frauds, § 711. It is true, that the distinction in the text is apparently overridden in War- wick V. Bruce, supra ; but in that case it did not appear but that the pota- toes could be at once harvested. See Bryant v. Crosby, 40 Me. 9 ; Claflin v. Carpenter, 4 Met. (Mass.) 580 ; Sherry V. Picken, 10 lud. 375 ; Bull v. Gris- CHAP. XI.] STATUTE OF FRAUDS. [§ 867. ute has been held to cover agreements respecting the sale of grow- ing trees,' or wheat,^ or grass," or standing though growing under- wood,* or growing poles." But while forest trees, though planted, are within the statute ;" it is otherwise with nursery slips, whose office it is to be stored on the soil, not for permanency, but for sale.' § 867. It has been sometimes said that where there is a license to the vendee to enter and carry off the crop, then the crop is per- sonalty, but when there is no such license, then the crop is realty. But this distinction cannot be sustained. If a vendee should be licensed to enter a grove a year or two hence, and cut down and carry off a load of saplings, the contract would concern realty, be- cause, between the contract and the performance, the soil would pass into the trees. On the other hand, if the vendor should say, " I will now cut down and stack these trees, and sell them to you at so much a cord," then the contract would be for personalty, though there was no license to the vendee.* The question is, is the wold, 19 111. 631 ; Marshall v. Ferguson, 23 Cal. 65. But as sustaining tlie text may be noticed Green v. Armstrong, 1 Denio, 550 ; Bank v. Crary, 1 Barb. 542 ; Warren b. Leland, 2 Barb. 613 ; Bishop V. Bishop, 1 Kernan, 123 ; Ben- nett V. Scutt, 18 Barb. 347 ; Westhook V. Eager, 1 Harr. (N. J.) 81. Cf. Buck f. Pickwell; 1 Williams (Vt.), 157; Reed, Stat. Frauds, §§ 708 et seq., 719, 796. ' Rodwell V. Phillips, 9 M. & W. 501, resolving a doubt suggested by Little- dale, J., in Graves v. Weld, 5 B. & Ad. 116; Smith v. R. R., 4 Keyes, 180; Robbins v. MoKnight, 1 Halst. Ch. 229 ; Owens V. Lewis, 46 Ind. 489 ; Cool v. Box Co., 87 Ind. 531 ; Daniels v. Bailey, 43 Wis. 566 ; Lillie v. Dunbar, 62 Wis. 198. 2 Kerr v. Hill, 27 W. Va. 576. " Crosby v. Wadsworth, 6 East, 602 ; Carrington v. Roots, 2 M. & W. 248 ; Gilmore v. Wilbur, 12 Pick. 120; Powell V. Rich, 41 111. 566 ; Powers v. Clarkson, 17 Kans. 218 ; Reed, Stat. Frauds, §§ 707, 709, 800. See distinc- tions taken in Reiff v. Reiff, 64 Penn. St. 184. * Scorell V. Boxall, 1 Y. & J. 396. 6 Teal V. Auty, 2 B. & B. 99 ; 4 Moore, 542, S. C; Bishop v. Bishop, 1 Kernan, 123. See, however, comments in Browne, Stat. Frauds, § 25 ; Reed, Stat. Frauds, §§ 709, 740. When a vendor has contracted to sell timber at so much per foot, this was held not to pass an interest in lands. The court regarded the contract in the same light as if it had related to the sale of timber already felled. Smith V. Surmau, 9 C. & P. 501 ; S. C. M. & R. 455, as explained by Lord Abinger, in Rodwell v. Phillips, 9 M. & W. 505 ; Reed, Stat. Frauds, § 710. 6 Marshall v. Green, 1 C. P. D. 39. ' Miller v. Baker, 1 Mete. (Mass.) 27 ; Whitmarsh v. Walker, Ibid. 314. 8 See Marshall v. Green, 1 C. P. D. 40, where Lord Coleridge said : "It would seem obvious that a sale of twenty-two trees to be taken away immediately was not a sale of an in terest in land, but merely of so much timber." 19 § 867.] THE LAW OP EVIDENCE. [book II. strength of the soil to go into the crop after the sale is made, or is it not ? If it does, then what is sold is " an interest in land."i If, however, what is sold is the annual crop, ripe, and to be cut be- fore it draws materially from the soil, then the crop is not " an in- terest in land."^ It may be added, a fortiori, tlistt where land is to be contracted to be sold or let, and the vendee or tenant agrees to buy the growing crops, the crops are regarded as still drawing from the soil, and as therefore under the fourth section of the statute, which requires contracts to be in writing.' But when the essence of the thing sold is labor, not land, the statute does not apply.* Or, to revert to the old terms, while fruetus naturales are real property, as in the main products of land,/rMciMS industriales are personalty, as in the main products of labor. 1 Knox V. Haralson, 2 Tenn. Cli. 232 ; though see Green v. R. R., 73 N. C. 524; Reed, Stat. Frauds, § 711. That the question does not hang upon the purchaser's right to enter and gather, appears by Lord Ellenhorough's remarks in Parker u. Staniland, 11 East, 362. See Jones v. Flint, 10 Ad. 6 El. 753 ; Nettleton v. Sikes, 8 Met. (Mass.) 34; Whitmarsh v. Walker, 1 Met. (Mass.) 313 ; Claflin v. Carpenter, 4 Met. (Mass.) 583. 2 Anon., 1 Ld. Raym. 182; Mayfield V. Wadsley, 3 B. & Cr. 357 ; Smith v. Surman, 9 B. & C. 561; Rodwell u. Phillips, 9 M. & W. 505 ; Marshall v. Green, 1 C. P. D. 35 ; Safford u. Annis, 7 Me. 168 ; Cutler v. Pope, 13 Me. 377 ; Bryant c. Croshy, 40 Me. 107 ; Whitmarsh v. Walker, 1 Met. (Mass.) 313 ; Claflin v. Carpenter, 4 Met. (Mass.) 580 ; Kilmore v. Hewlett, 48 N. Y. 669 ; Harris u. Frink, 49 N. Y. 27 ; Hershey v. Metzgar, 90 Penn. St. 218 ; Smith v. Bryan, 5 Md. 141 ; Smith V. Fritt, 1 Dev. & Bat. 242; Rohinson v. Ezzell, 72 N. C. 223 ; Cain !). McGuire, 13 B. Mon. 340 ; Davis v. MoFarlaue, 37 Cal. 636. See Reed, Stat. Frauds, §§ 707-711. ' Falmouth v. Thomas, 1 C, M. & R. 20 19; Mayfield v. Wadsley, 3 B. & C. 361. See Reed, Stat. Frauds, §§ 664, 694, 708 ; 10 Alb. L. J. 272; 20 Am. L. J. 615. * Pitkin V. Noyes, 48 N. H. 294. In Greenl. on Ev., § 271, the position is broadly taken that where produce of the land is specifically sold, this is not a sale of interest in land, unless the intention of the parties to the contrary be shown. This yiew is adopted in Erskine v. Plummer, 7 Greenl. 447 ; Cutler v. Pope, 13 Me. 377 ; Purner v. Pierey, 40 Md. 141. On the other hand, the weight of au- thority is that to convert natural pro- ducts of land into personalty, such must be shown to have been the Inten- tion of the parties, the burden of prov- ing which position is on the party set- ting it up. Kingsley v. Holbrook, 45 N. H. 318 ; Green v. Armstrong, 1 Denio, 550; Killmore v. Hewlett, 48 N. Y. 569 ; Slocum v. Seymour, 36 N. J. L. 139 ; Pattison's App., 61 Penn. St. 294; Scotteu v. Brown, 4 Harr. (Del.) 324 ; Russell v. Myers, 32 Mich. 523. See McClintock's App., 71 Penn. St. 366 ; Bingham on Real Prop., 190 et seq. CHAP. XI.] STATUTE OF FRAUDS. [§ 868. § 868. When the statute requires simply a memorandum in writing as a constituent of a contract, a writing by an agent is sufficient, without a written authority to the authority agent. Authority to execute a deed, by the first section limited by of the statute, must be in writing, because this is specifi- cally required ; but it is otherwise as to an agreement to convey, the authority to execute which, on the part of the agent, may be by parol.* For the sale of goods, under the statute of frauds, a parol authority is adequate.^ An auctioneer's memorandum or entry, signed by him, whether as to real or personal estate, binds both parties.* 1 Emmerson v. Heelis, 2 Taunt. 38 Clinan v. Cooke, 1 Soh. & Lef. 22 Kenneys v. Proctor, 1 Jao. & W. 350 Higgins V. Senior, 8 Mees. & W. S44 Mortimer v. Cornwell, 1 Hofl. Chan- 351 ; Moody v. Smith, 10 N. Y. 5fl8 Long V. Hartwell, 34 N. J. 116 ; Riley V. Minor, 29 Mo. 439 ; Broun v. Eaton, 21 Minn. 409 ; Rottman i^. Wasson, 5 Kans. 552. See Neaves u. Mining Co., 90 N. C. 412; Jackson v. Scott, 67 Ala. 99. 2 See oases as to brokers, collected in Wharton on Agency, §§ 720 et seg.; infra, § 869. 3 Hinde v. Whitehouse, 7 East, 258 ; Emmerson v. Heelis, 2 Taunt. 38 ; White V. Proctor, 4 Taunt, 209 ; Ken- worthy V. Schofield, 2 B. & C. 945; Farebrother v. Simmons, 1 B. & Aid. 333 ; Cleaves v. Foss, 4 Greenl. 1 ; Pike V. Balch, 38 Me. 302; Smith V. Arnold, 5 Mason, 414 ; Bent v. Cobb, 9 Gray, 397; Morton v. Dean, 13 Met. 388 ; McComb v. Wright, 4 Johns. Ch. 659 ; Johnson v. Buck, 6 Vroom, 338; Pugh v. Chesseldine, 11 Ohio, 109 ; Hart v. Wood, 7 Blackf. 568; Burke u. Haley, 7 111. 614; Cherry v. Long, Phill. (N. C.) 466; Gordon v. Saunders, 2 MoCord Ch. 164; Episc. Church u. Leroy, Riley (S. C), Ch. 156 ; White v. Crew, 16 Ga. 416 ; Adams v. McMillan, 7 Port. 73; Jelks v. Barrett, 52 Miss. 315. See Reed, Stat. Frauds, §§ 293, 314, 1073 et seq. On a bill for specific performance of an auction sale of a house and premi- ses it appeared that after the sale the auctioneer signed the following memo- randum at the foot of the conditions : " The property duly sold to A. S., and deposit paid at close of sale," and he also signed this receipt, "P., March 29th, 1880. Received of A. S. the sum of 21/., as deposit on property pur- chased at 420/., at Sun Inn, P., at above date, Mr. G. C, owner." The statute of frauds was set up in de- fence. The conditions contained no description of the property sold, but posters had been put up describing the property to be sold on the 29th March, at the Sun Inn. It was held, that the word "purchased" was enough to con- nect the receipt with the poster, and that the statute of frauds was satisfied. Shardlow v. Cotterill, 20 Ch. D. 90; 51 L. J. Ch. 353. See Reed, Stat. Frauds, §§ 350, 407-409. 21 § 869.] THE LAW OF KVIDENCE. [book II. III. SALES OF GOODS. § 869. By the seventeenth section no contract for the sale of goods, wares, or merchandise, for the frice of ten pounds goodsmust or upwards, shall be good, unless the buyer shall accept denced by P^'"*' °^ *^® goods, and actually receive the same, or give something in earnest to bind the bargain, or in part pay- ment ; or unless " some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized."' One party cannot sign as the other's agent ;* but -there may be a common agent for both parties.* The language in the fourth section is in this respect substantially the same as that of the seventeenth ;* and in order to satisfy either, it has been held that the consideration for the agreement in the one case, and for the bargain^ in the other, must appear expressly or impliedly in the writing signed by the party to be charged. This rule applies, according to the English construction,* not only to bargains for the sale of goods, but to agreements upon consideration of marriage,' to contracts for the sale of lands, and to agreements not to be performed within a year,' writings UBlesR there be part pay- meut, or earnest, or delivery ; and consid- eration must ap- pear. i By Lord Tenterden's Act, which has been transferred to the codes of several of the United States, " all contracts for the sale of goods, of the value of ten pounds and upwards, not- withstanding the goods may be In- tended to be delivered at some future time, or may not at the time of such contract be actually made, procured^ or provided, or fit or ready for deliv- ery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery." See Pawelski v. Hargreaves, 47 N. J. L. 334 ; Hanson v. Roter, 64 Wis. 622 ; Lyle V. Shinnebarger, 17 Mo. Ap. 66. " Sharmau v. Brandt, L. R. 6 Q. B. 720. See Murphy „. Boese, L. R. 10 Ex. 126 ; Reed, Stat. Frauds, § 370. " See Wharton on Agency, §§ 644, 718, and cases cited supra, § 868. 22 * Taylor's Evidence, § 983, citing Kenworthy v. Schofield, 2 B. & C. 947, per Bayley, J. See Reed, Stat. Frauds, §§ 314, 344, 348, 350, 372. ^ In Egerton «. Mathews, 6 East, 307, the bargain imported consideration on the face of it. See per Parke, J., In Jenkins v. Reynolds, 3 B. & B. 21 ; and see Mahon v. U. S., 16 Wall. 143 ; Norris v. Blair, 39 Ind. 90 ; Calkins v. Falk, 1 Abb. (N. Y.) App. 291. 6 Taylor's Evidence, § 933. See Browne on Statute of Frauds, § 388. ' See Saunders «. Cramer, 3 Dru. & War. 87 ; Reed, Stat. Frauds, §§ 341, 369, 391, 398. ' Lees V. Whitcomb, 5 Bing. 34 ; 2 M. & P. 86, S. C. ; Sykes v. Dixon, 9 A. & E. 693 ; 1 P. & D. 463, S. C. ; Sweet V. Lee, 3 M. & Gr. 466 ; Reed, Stat. Frauds, §§ 365, 439. CHAP. XI.] STATUTE OF FRAUDS. [§ 869. and also to special promises made by executors or administrators to answer damages out of their own estate. In the United States, the same rule as to statement of consideration has been adopted in New Hampshire,' New York," Maryland,' South Carolina,* G-eorgia," Michigan,^ Indiana,' and Wisconsin.' It has been rejected in Maine,' Vermont," Massachusetts," New Jersey,'" Pennsylvania,'^ Ohio," North Carolina," and Missouri.'' A covenant under seal, however, need not, it is said, express the consideration." It is not necessary, in any case, that the consideration should be stated on the face of the written memorandum in express terms. It is suffi- cient if it can be collected, not indeed by mere conjecture, however ' Underwood v. Campbell, 14 N. H. 393. 2 Kerr v. Sliaw, 13 Johna. 236. So by subsequent statutes ; Sackett V. Palmer, 25 Barb. 179 ; Marquand v. Hipper, 12 Wend. 520 ; Smith «. Ives, 15 Wend. 182; Bennett v. Pratt, 4 Denio, 275 ; Newberg v. Wall, 65 N. Y. 484 ; Stone o. Browning, 68 N. Y. 598. See Keed, Stat, of Frauds, §§ 399, 417. So of a guarantee indorsed on a promissory note. Hunt v. Brown, 5 Hill| 145 ; Hall u. Farmer, 5 Denio, 484 ; Brewster v. Silence, 8 N. Y. 207 ; Draper v. Snow, 20 N. Y. 331. But since the Act of 1863 a guarantee need no longer express consideration. Speyers v. Lambert, 1 Sweeney (N. Y.), 335 ; 16 Abb. (N. S.) 309 ; 37 How. Pr. 315 ; Reed, Stat. Frauds, §§ 426, 429, 432. ' Sloan V. Wilson, 4 Har. & J. 322 ; Hutton V. Padgett, 26 Md. 228 ; Reed, Stat. Frauds, §432. ' Stephens i'. Winn, 2 Nott & McC. 372 ; though see Leoat v. Tavel, 3 McC. 158. ' Hargroves v. Cooke, 15 Ga. 321. 6 Jones V. Palmer, 1 Doug. 379. See James v. Muir, 33 Mich. 223 ; McElroy V. Buck, 35 Mich. 434. ' Gregory v. Logan, 7 Blackf. 112. See Reed, Stat. Frauds, §§ 426, 431. s Taylor v. Pratt, 3 Wis. 674. See Meincke v. Falk, 55 Wis. 427. 9 Levy o. Merrill, 4 Greenl. 189 ; Gilligan v. Boardman, 29 Me. 81. See Reed, Stat. Frauds, §§ 433,439. >° Patchin v. Swift, 21 Vt. 297 ; Reed, Stat. Frauds, § 427. " Packard v. Richardson, 17 Mass. 122. But see Oakman v. Rogers, 120 Mass. 214, to the effect that letters arranging the sale of fruit jars, stating the price, but not the number or mode of delivery, did not satisfy the statute. ^ This is by Rev. Stat., p. 446, which provides that consideration need not be set forth or expressed in the writing. In Beardsley v. Beardsley, 2 South. 570, it was held that the consideration need not be expressed, though this was limited by Young v. Lee, 1 Spencer, to cases where the consideration could be inferred from the writing. See Reed, Stat. Frauds, § 426. 13 Paul V. Staokhouse, 38 Penn. St. 302; Bowser v. Cravener, 56 Penn. St^ 132. w Reed v. Evans, 17 Ohio, 128. 15 Ashford v. Robinson, 8 Ired. 114. M Halsa V. Halsa, 8 Mo. 305. See Browne, Stat. Frauds, § 389 ; Reed, Stat. Frauds, § 427. " Douglass V. Howland, 24 Wend. 35 ; Rosenbaum v. Gunter, 2 E. D. Smith, 415. 23 § 870.] THE LAW OF EVIDENCE. [book II. plausible,^ but by fair and reasonable, if not necessary, intendment from the whole tenor of the writing.^ Even, however, under the strict rule adopted by the English courts, any act of the plaintiff from which the defendant or a stranger derives a benefit or advan- tage, or any labor, detriment, or disadvantage sustained by the plaintiff, however small may be the benefit on the one hand, or the inconvenience on the other, is a suflScient consideration, if such act be performed or such inconvenience be suffered by the plaintiff, with the consent, express or implied, of the defendant, or, in the language of pleading, at his special instance and request.' § 870. The contract, under the statute, must contain the names other ^^ ^^^ parties, and the general terms of the bargain,* material and the promise,* either directly or by reference f but averments , . , must be any memorandum will sumce, which contains all that m writing, jgg^^g j.q f^tuj-g certainty.^ It is suflScient, for instance. 1 Hawes v. Armstrong, 1 Bing. (N. C.) 765, 766, per Tindal, C. J. ; James V. Williams, 5 B. & Ad. 1109, per Pat- terson, J. ; Ralkes u. Todd, 8 A. & E. 855, 856, per Ld. Denman. May v. Ward, 134 Mass. 127. 2 Joint V. Mostyn, 2 Fox & Sm. 4 ; Saunders v. Cramer, 3 Dru. & War. 87 ; Price v. Richardson, 15 M. & W. 540 ; Caballero u. Slater, 14 Com. B. 300. See Neelson v. Sanborne, 2 N. H. 413 ; Simons v. Steele, 36 N. H. 73 ; Adams v. Bean, 12 Mass. 139 ; Sears V. Brink, 3 Johns. 210 ; Leonard v. Vredenburgh, 8 Johns. 29 ; Rogers v. Kneeland, 10 Wend. 252 ; Marquand. I'. Hipper, 12 Wend. 520 ; Parker v. Wilson, 15 Wend. 346 ; Gates v. Mc- Kee, 3 Kern. 232 ; Church v. Brown, 21 N. Y. 315 ; Weed v. Clark, 4 Sandf. 31; Dugan a. Sittings, 3 Gill, 138; Williams v. Ketoham, 19 Wis. 231 ; Lecat V. Tavel, 3 McCord, 158 ; Otis v. Hazeltine, 27 Cal. 80. See Taylor's Ev. § 934 ; Reed, Stat. Frauds, §§ 421, 428, 429, 438, 439. 8 Taylor's Evidence, § 935, and oases there cited ; 1 Selw. N. P. 43 et se}. ; 24 2 Wms. Saund. 137 g, 137 k, and cases there collected. * Reed, Stat. Frauds, §§ 315, 342, 358, 392, 394, 397 et seq., 424, 501, 505 ; Archer v. Baynes, 5 Ex. R. 625 ; Wood V. Midgley, 5 De Gex, M. & G. 41 ; Holmes u. Mitchell, 6 Com. B. (N. S.) 361 ; Laythoarp v. Bryant, 2 Bing. N. C. 742 ; Remick v. Sandford, 118 Mass. 102 ; aff. S. C. 120 Mass. 315 ; Smith V. Shell, 82 Mo. 215 ; Fry v. Piatt, 32 Kan. 62 ; North u. Mendell, 73 Ga, 400. "■ Reed, Stat. Frauds, §§ 352 et seq., 399, 414, 417, 418 ; Carroll v. Cowell, 1 Jebb & Sy. 43 ; Morgan v. Sykes, cited in argument in Coats «. Chap- lin, 3 a. B. 486. See Salmon Falls Co. V. Goddard, 14 How. 446 ; Smith V. Arnold, 5 Mason, 416 ; Ide v. Stan- ton, 15 Vt. 691 ; Ives v. Hazard, 4 R. I. 14 ; McFarson's Appeal, 11 Penu. St. 503; Soles v. Hickman, 20 Penn. St. 180 ; Kinlookw. Savage, 1 Speers Eq. 470 ; Farwell v. Lowther, 18 111. 252. « Riley t). Farnsworth, 116 Mass. 223 ; Reed, Stat. Frauds, § 392. ' Taylor's Evidence, § 936 ; Slater ... Smith, 117 Mass. 96; Reed, Stat. Frauds, §§ 361, 410, 416. CHAP, xr.] STATUTE OP FRAUDS. [§ 871. for the vendor to undertake in writing to purchase a particular article at a named price, though it be agreed at the same time that the article in question shall have some alteration or addition made to it before delivery.' It has also been held, that if a party agrees to pay rent for a certain farm at a specified sum per acre, the number of acres need not be specified f nor need there be a specification of the quantity of goods in a contract, in consideration of forbearance, to pay for all goods supplied to a third party during the antecedent month.^ Nor is it necessary that the writing should specify, when this is not practicable, the particular mode,* or time of payment," or even the specific price in figures.' Hence a written order for goods "on moderate terms" is sufficient,^ though, if a defi- nite price be agreed upon, it should be stated in the contract.' § 871. As to parties, greater particularity is requisite ; and either expressly or inferentially their names must be collected from the memorandum.* The statute was held to be satisfied in this respect where the defendant, having purchased various articles in the plain- tifi''s shop, signed his name and' address in the " Order-book," at the head of an entry which specified the articles and the prices ; as the plaintifi^'s name was printed on the fly-leaf of the book, and the 1 Sari V. Bourdillon, 1 Com. B. N. S. 188 ; Reed, Stat. Frauds, §§ 399, 401, 402. 2 Shannon v. Bradstreet, 1 Soli. & Lef. 73, per Ld. Redesdale. ' Bateman v. Phillips, 15 East, 272 ; Shortrede v. Cheek, 1 A. & E. 57, 58, 60 ; Bleakley v. Smith, 11 Sim. 150. See, to same effect, Shelton v. Braith- waite, 7 M. & W. 437, 438 ; Dobell v. Hutchinson, 3 A. & E. 371 ; Powell v. Dillon, 2 Ball & B. 420 ; Spiokernell V. Hotham, 1 Kay, 669 ; Eabaud v. D'Wolff, 1 Peters, 499. See oases in Reed, Stat. Frauds, §§ 348, 398, 403, 415, 416, 422, 437, 438. * Sari u.. Bourdillon, 1 Com. B. (N, S.) 188. 6 Kriete u. Myer, 61 Md. 588. " Valpy V. Gibson, 4 Com. B. 864, per Wilde, C. J. ' Ashoroft V. Morrin, 4 M. & Gr. 450. See Reed, Stat. Frauds, § 419. 8 Elmore v, Kingsoote, 5 B. & C. 583 ; 8 D. & R. 843, S. C. ; Goodman v. Grif- fiths, 1 H. & N. 574. » Reed, Stat. Frauds, §§ 346, 359 ei seq., 376, 399, 401 et seq. ; Champion V. Plummer, 1 Bos. & P. (N. R.) 262 ; Vandenbergh v. Spooner, Law Rep. 1 Ex. 316 ; and 4 H. & C. 519, S. C. ; Williams v. Byrnes, 2 New R. 47, per Pr. C. ; 1 Moo. P. C. (N. S.) 154, S. C. ; Warner v. Willington, 3 Drew. 523 ; Wheeler, t/. Collier, M. & M. 125, per Ld. Tenterden ; Skelton v. Cole, 4 De Gex & J. 587 ; Williams v. Lake, 2 E. & E. 349 ; Newell v. Radford, L. R. 3 C. P. 52 ; Sherborne v. Shaw, 1 N. H. 159 ; Nichols v. Johnson, 10 Conn. 198 ; Osborne v. Phelps, 19 Conn. 73 ; Bailey V. Ogden, 3 Johns. R. 399. 25 § 872.] THE LAW OF EVIDENCE. [book II. defendant might have seen it had he thought fit to look for it.' But, under the statute, no substantial part of the contract can be by parol,^ though abbreviations may be helped out by parol.' § 872. It is enough, in order to meet the requirements of the statute, if the substance of the contract is to be inferred from writing, either by the parties or by their agent, though these writings are made up of disjointed memo- randa, or of a protracted correspondence.* For this purpose it will be enough to produce a letter or memorandum signed by the party or his agent, though it does not contain in itself any one of the terms of the agreement, if it distinctly refers to and recognizes any writing which does contain them f and a memorandum by the common agent of both parties will be sufficient for the purpose.' A letter, however, to be so received, must ratify the written but unsigned contract relied on.' It is sufficient, how- But may be inferred from sev- eral docu- ments. 1 Sari V. Bourdillon, 1 C. B. N. S. 188. 2 Wheelan o. Sullivan, 102 Mass. 204 ; Thayer v. Rock, 13 Wend. 53 ; Wright V. Weeks, 25 N. Y. 153. See Eeed, Stat. Frauds, §§ 322, 357, 408, 511, 544. 3 Infra, § 926 ; Mann v. Bishop, 136 Mass. 495 ; Heidemau v. Wolfstein, 12 Mo. App. 366. * Supra, § 617; Reed, Stat. Frauds, §§ 346, 361, 390, 392, 394, 402, 681 ; Allen u. Bennet, 3 Taunt. 169 ; Jack- son u. Lovre, 1 Bing. 9 ; Phillimore v. Barry, 1 Camp. 513, per Ld. EUenbor- ough ; Warner v. Willington, 3 Drew. 523 ; Skelton v. Cole, 4 De Gex & J. 587 ; Marshall v. R. R., 16 How. U. S. 314 ; Dodge «. Van Lear, 5 Cranch C. C. 278 ; Pettibone u. Derringer, 4 Wash. C. C. 215 ; Beokwith v. Talbot, 95 U. S. 289 ; North Berwick Co. v. Ins. Co., 52 Me. 336 ; Abbott v. Shepard, 48 N. H. 14 ; Connecticut v. Bradish, 14 Mass. 296 ; Beers v. Jaokman, 103 Mass. 192 ; Short Mountain Co. a. Hardy, 114 Mass. 197 ; Peck v. Vandermuth, 99 N. Y. 29 ; Cossitt .;. Hobbs, 56 111. 231 ; Union Canal v. Loyd, 4 Watts & S. 394; 26 Douglass V. Mitchell, 35 Penn. St. 440 ; Downer v. Morrison, 2 Grat. 250. See Passaic Co. v. Hoffman, 3 Daly„495. 6 Dobell u. Hutchinson, 3 A. & E. 355, 371 ; 5 N. & M. 251, 260, 5. C. ; Llewellyn v. Ld. Jersey, 11 M. & W. 189 ; Gibson u. Holland, 1 H. & R. 1 ; Law Rep. C. P. 1 ; Maorory v. Scott, 6 Ex. R. 907 ; Kenworthy v. Schofield, 2 B. & C. 945 ; Ridgway ... Wharton, 3 De Gex, M. & G. 677 ; 6 H. of L. Cas. 238, S. C; 1 Sug. V. & P. 171 ; Bau- man v. James, Law Rep. 3 Ch. Ap. 508 ; Crane w. Powell, Law Rep. 4 C. P. 123, S. C. ; Reuss v. Pickley, L. R. 1 Exo. 342 ; Nesham v. Selby, L. R. 13 Eq. 19 ; O'Donnell v. Leeman, 43 Me. 158 ; Mor- ton V. Dean, 13 Met. 385 ; Talman v. Franklin, 14 N. Y. 584; Moore v. Mountoastle, 61 Mo. 424. See Stan- ley u. Dowdesdell, L. R. 10 C. P. 102 ; Parkman v. Rogers, 120 Mass. 264. See Reed, Stat. Frauds, §§ 314, 344, 348, 355, 390, 397, 408, 521. s Butler o. Thomson, 92 0. S. 412. Supra, § 869 ; Wharton on Ag. § 644. ' Taylor's Ev. § 937, citing Archer v. Baynes, 5 Ex. R. 625 ; Richards v. For- CHAP. XI.] STATUTE OP FRAUDS. [§ 872. ever, if the letter enumerates all the essential terms of the bargain, although it include excuses for the non-acceptance of the goods, which form the subject-matter of the contract.* Telegrams^ may form part of the material from which a contract may be inferred. It has been held that in such case, in order to make the sender re- sponsible, the original signature of the sender or his agent must be produced,^ and the terms be adequately expressed ;* although where the rule is that the telegraph company is the agent of the sender, the sendee is bound by the message forwarded by the company.* Nor is it necessary, as will also be hereafter shown more fully, that the contract should be technically inter partes. Liability under the statute may be imposed by a letter addressed to a third party,' or by an answer to a bill in chancery, or by an affidavit in any legal proceeding ;^ or by an auctioneer's memorandum ;* or by a broker's ter, 6 B. & C. 437 ; Cooper v. Smith, 15 East, 103. See Goodman v. Griffiths, 1 H. & N. 574 ; Jackson \i. Oglander, 2 Hem. & M. 465. 1 Taylor's Ev. § 937 ; Bailey w. Sweet- ing, 9 Com. B. N. S. 843 ; Wilkinson 17. Evans, Law Rep. 1 C. P. 407 ; and 1 H. & R. 552, S. C. ; Buxton <,. Rust, Law Rep, 7 Ex. 1. See Leather Cloth V. Hieronomus, L. R. 10 Q. B. 140; Neaves v. Mining Co., 90 N. C. 412. 2 Supra, § 617 ; infra, § 1128 ; Reuss V. Pickley, L. R. 1 Exoh. 342 ; 4 H. & C. 588 ; Reed, Stat, of Frauds, § 339. ' Copeland u, Arrowsmith, 18 L. T. (N. S.) 755 ; Godwin v. Francis, L. R. 5 C. P. 293; Dunning v. Rohert, 35 Barh. 463 ; Unthank v. Ins. Co., 4 Biss. 357 ; Crane a. Malony, 39 Iowa, 39 ; Wells V. R. R., 30 Wis. 605. See su- pra, § 617 ; Reed, Stat, of Frauds, §§ 339, 341, 352. That the telegraph company maybe the sender's agent for this purpose, see Howley v. Whipple, 8 N. H. 487. In England this agency is not admitted ; and it is now settled the agency is not to be implied from the mere fact of telegraphic transmis- sion. Henzel v. Papa, L. R. 6 Exch. 7, and other authorities cited supra, § 617 ; infra, § 1128. < Trevor v. Wood, 36 N. Y. 307 ; Mc- Elroy V. Buck, 35 Mich. 434 ; Watt v. Cranberry Co., 63 Iowa, 730 ; Saveland V. Green, 40 Wis. 431 ; Reed, Stat. Frauds, § 339. 5 Supra, § 617 ; infra, § 1128 ; How- ley V. Whipple, 48 N. H. 487 ; Dunn- ing V. Roberts, 33 Barb. 463; Trevor u. Wood, 36 N. Y. 307. 8 Moore v. Hart, 1 Verm. 110 ; Long- fellow V. Williams, Pea. Add. Cas. 225, per Lawrence, J. ; Rose v. Cunynghame, 11 Ves. 550, per Ld. Hardwicke ; Atk. 503 ; 1 Smith L. C. 272 ; Gibson v. Hol- land, 1 H. & R. 1 ; S. C. Law Rep. 1 C. P. 1 ; Wilkins v. Burton, 5 Vt. 76 ; Betts V. Loan Co., 21 Wis. 80 ; Robert- son V. Ephraim, 18 Tex. 118. See Clark V. Tucker. 2 Sandf. 157 ; Kin- loch u. Savage, 1 Speers, 143. ' See fully infra, § 912 ; and see Doe V. Steel, 3 Camp. 115 ; Barkworth v. Young, 26 L. J. Ch. 153, 158, per Kin- dersley, V. C. ; Knowlton u. Mosely, 105 Mass. 136 ; Forrest v. Forrest, 6 Duer, 102 ; Cook v. Barr, 44 N. Y. 158 ; Bowen v. De Lattre, 6 Whart. R. 430 ; Fulton V. Gracey, 15 Grat. 314. * Wharton on Agency, § 655. Supra, §868. 27 § 873.] THE LAW OF EVIDENCE. [book II. entries ;' or by any other written engagement, though signed solely by the party charged or his agent.' But a written memorandum, made after the action is brought, will not satisfy the statute.* And the writings, when several are depended on, cannot, in material matters, be supplemented out by parol.* § 873. As the statute does not require that the writing should be subscribed^ by the party to be charged, but merely that Place of it should be signed, it makes no difference, in this re- eignature 07 , immate- spect, whether the party charged inserts his name at the Initials will beginning, or in the body, or at the foot or end of a docu- idmtffled. ment.^ But, as a question of fact, it will be for the jury to determine whether the party, not having signed it regularly at the foot, meant to be bound by it as it stood, or whether it was left so unsigned because he refused to complete it.' On the one hand, it has been held to be sufficient, where a party signed as witness to a deed reciting the agreement to be proved, the knowl- edge of the recital being brought home to the party.* On the other hand, where an agreement, drawn up by the secretary of one of the contracting parties, contained the names of both parties in the body of the instrument, but concluded, " As witness our hands," and no signatures were subscribed, the court held that the statute was not 1 Whart. on Agency, § 718. ' See cases cited in succeeding sec- tions ; Vassault v. Edwards, 43 Cal. 458 ; Rutenberg v. Main, 47 Cal. 213 ; MoWilliams v. Lawless, 15 Neb. 131 ; as limiting abore, see Banks v, Man. Co., 20 Fed. Rep. 667. » Bill V. Bament, 9 M. &.W. 36. * Nesham v. Selby, L.R. 13 Eq. 191 ; L. R. 7 Oh. Ap. 406 ; Pierce v. Carff, L. R. 6 Q. B. 210 ; Reed, Stat. Frauds, §§ 328, 361, 366, 396. 5 In New York, where the word "subscribed" is used, there must be a signing at the end. McGriveon v. Flem- ing, 12 Daly, 289. 6 Taylor's Ev. § 939 ; Reed, Stat. Frauds, §§ 381, 384 et seq., 397, 427, 681 ; Caton v. Caton, L. R. 2 H. L. 127 ; Lobb V. Stanley, 5 Q. B. 574, 583 ; John- son V. Dodgson, 2 M. & W. 669, per Ld. 28 Ablnger ; Durrell v. Evans, 1 H. & C. 174 ; Knight v. Crockford, 1 Esp. 190, 193, per Eyre, C. J. ; Ogilvie' v. Fol- jambe, 3 Mer. 53 ; Saunderson v. Jack- sou, 2 B. & P. 238, per Ld. Eldon ; Ham- mersley v. Baron de Biel, 12 CI. & Fin. 63, per Ld. Cottenham ; Holmes v. Maokrell, 3 Com. B. N. S. 789 ; Bleak- ley V. Smith, 11 Sim. 150; Ulen w.Kit- tredge, 7 Mass. 235 ; Penniman v. Harts- horn, 13 Mass. 87 ; Parks v. Brinker- hoff, 2 Hill (N. Y.) 663; Drury v. Young, 58 Md. 546 ; Hill v. Johnson, 3 Ired. Eq. 432; Evans v. Ashley, 8 Mo. 177. See, as giving a stricter rule, Hodgkins v. Bond, 1 N. H. 284 ; Jackson u. Titus, 2 Johns. R. 432. ' Johnson v. Dodgson, 2 M. & W. 659, per Ld. Abinger ; Taylor, § 939 ; Beckwith v. Talbot, 95 U. S. 288. 8 Welford v. Beezley, 1 Ves. Sen. 6. CHAP. XI,] STATUTE OF FRAUDS. [§ 873. satiafied, as it was clearly intended that the agreement should not be perfected till the names were added at the foot.^ In New York, under the Revised Statutes, the memorandum was to be signed at the end by the party charged.^ While the party's Christian name may be given by initials, or omitted altogether,' the surname must be substantially exact.* Hence it has been held that if a letter be signed by the mere initials of the party, if such initials cannot be identified by parol,* or if it be subscribed, without signature, " by your affectionate mother,"^ or the like, it will not sufiSce. A printed signature has been accepted as adequate where the party to be charged had written other parts of the memorandum, or had done other acts amounting to a recognition of his printed name.^ All that is required to satisfy the statute, is that the agreement or memorandum should be signed " by the party to be charged there- with," that is, by the party whether plaintiff or defendant against whom the claim is made.* Under the English statutes an oral 1 Hubert v. Treherne, 3 M. & Gr. 743 4 Scott N. R. 486, S. C. 2 Davis V. Shields, 26 Wend. 341 reversing S. C, 24 Wend. 322 ; James V. Patten, 6 N. Y. 9 ; reversing S. C. 8 Barb. 344. See Eeed, Stat. Frauds §§ 385, 400. a Lobb V. Stanley, 5 Q. B. 574, 581 Ogilvie V. Poljambe, 3 Mer. 53. * MoElroy v. Seery, 61 Md. 389. 8 Reed, Stat. Frauds, §§ 384, 386, 421 ; Hubert v. Moreau, 2 C. & P. 528 ; 12 Moore, 216, S. C. ; Sweet v. Lee, 3 M. & Gr. 452, 460. To the effect that parol evidence is admissible to explain initials, see Phillimore v. Barry, 1 Camp. 513 ; Salmon Falls Co. v. God- dard, 14 How. 447 ; Barry v. Coombe, 1 Peters, 640 ; Sanborn v. Flagler, 9 Allen, 474. Reed, Stat. Frauds, §§ 320, 341, 348, 352, 386, 392. Infra, § 939. 6 Selby V. Selby, 3 Mer. 2, per Sir W. Grant. ' Schneider v. Norris, 2 M. & Sal. 286 ; Saunderson u. Jackson, 2 B. & P. 238. See Penniman o. Hartshorn, 13 Mass. 87. In New York, a printed signature, under the Revised Statutes, is insufficient. Davis v. Shields, 26 Wend. 351. " Reed, Stat. Frauds, §§ 358 et seq., 361, 391 ; Taylor's Ev. § 940 ; Lay- thoarp V. Bryant, 2 Bing. N. C. 735 ; 8 Scott, 238, S. C. ; Liverpool Borough Bk. 17. Eocles, 4 H. & N. 139 ; Seton v. Slade, 7 Ves. 275, per Ld. Eldon ; Ed- gerton v. Mathews, 6 East, 307 ; Allen V. Bennet, 3 Taunt. 169. The last two cases were decisions on § 17, which uses the word parties. These cases, Mr. Taylor holds, overrule the dicta of Ld. Redesdale and Sir T. Plumer, in Lawrenson v. Butler, 1 Soh. & Lef. 13 ; and O'Rourke v. Perceval, 2 Ball & B. 58. As to when a covenantee may sue for a breach of covenant, although he has not executed the deed, Mr. Tay- lor refers to Wetherell v. Langston, 1 Ex. R. 634 ; Pitman v. Woodbury, 3 Ex. R. 4 ; Brit. Emp. Ass. Co. i;. Browne, 12 Com. B. 723 ; Morgan v. Pike, 14 Com. B. 473 ; Swatman v. Ambler, 8 Ex. R. 72. In New York, under the statute, the contract may be signed only by the party chargeable. MoCrea V. Furmort, 16 Wend. 460 ; Edwards 29 § 874.J THE LAW OF EVIDENCE. [BOOK II. acceptance of a written and signed proposal in its entirety is suffi- cient to charge the party making the proposal.* § 874. When the object of the contract is the sale of goods of the price or value of JEIO or upwards, or whatever may main^ob- ^® *^® limit, the contract falls within the seventeenth ject of con- section of the English statute, though it includes other tract 18 p . I • (. 1 sale of matters, as, for instance, the agistment of cattle, to which b-act must" the statute does not apply.' Contracts for work and ^^™ ^"'^ labor are not included in the statute ; and hence, if a contract is substantially for labor, though it incidentally involves the transfer of goods,* or the manufacture of goods,* it need not be in writing ; and so if the transfer be merely on trial ;" and so of an agreement to share in a speculation in stock already owned by one of the parties.' . Still, if the main object be the delivery of goods, the contract must be written ; and hence, a con- tract to make a set of teeth to fit the employer's mouth has been held to be within the statute.'^ Fixtures, also, when chattels, are not within the fourth section, so that a contract concerning them must be in writing.' With respect to the price, when several arti- V. Ins. Co., 21 Wend. 467 ; Worrall v. 13 Mass. 87 ; Bent v. Cobb, 9 Gray, Munn, 5 N. Y. 229 ; Nat. Ins. Co. v. 397 : McComb v. Wright, 4 Johns. C. Loomis, 11 Paige, 431 ; Dykers v. Town- 659. That both parties must sign a send, 24 N. Y. 57 ; Burrell v. Root, 40 contract of service for more than a N. Y. 496 ; Justice v. Lang, 42 N. Y. year, see Wilkinson u. Heavenwich, 493 ; S. C. 52 N. Y. 323 ; and so gen- 58 Mich. 574. erally, Marqueze v. Caldwell, 48 Miss. ' Harman v. Reeve, 18 C. B. 595 ; 25 23 ; Vassault v. Edwards, 43 Cal. 458 ; L. J. C. P. 257. Reed, Stat. Frauds, Rutenberg v. Main, 47 Cal. 213. That §§ 220, 238, 242, 250, 253. In New an auctioneer's memorandum should York the limit is $50 ; "gold," when be signed, see Rafferty v. Lougee, 63 treated as a staple, is within the stat- N. H. 54. ute. Peabody «. Speyers, 66 N. Y. 1 Reed, Stat. Frauds, §§ 387 et seq. 230. 391, 395, 419 ; Taylor's Ev. § 940 ; oit- a Clay v. Yates, 1 H. & N. 73. ing Creswell, J., in Ashcroft v. Morriu, * Joyce v. Schloss, 15 Abb. (N. Y.) 4 M. & Gr. 451 ; Watts v. Ainsworth, 3 N. Cas. 373. Fost. & Fin. 12; 1 H. & C. 83, S. C; s pitzpatrick v. Woodruff, 96 N. Y. Smith V. Neale, 2 Com. B. N. S. 67, 88 ; 561 ; Knhns v. Gates, 92 Ind. 66. Peek V. N. Staffords. Ry. Co., 29 L. J. 6 Bullard v. Smith, 139 Mass. 492. Q. B. 97, in Ex. Ch. ; Warner v. Wil- ' Lee v. Griffin, 1 B. & S. 272. lington, 3 Drew. 532 ; Ruess v. Picks- 8 Browne on St. of Frauds, § 234; ley, Law Rep. 1 Ex. 342; 4 H. & C. Reed, Stat, of Frauds, §§ 233 et seq., 588, S. C. See Forster v. Rowland, 7 714 et seq. ; supra, § 866 a. H. & N. 103 ; Penniman v. Hartshorn, 30 CHAP. XI.] STATUTE OF FRAUDS. [§ 875. cles are bought at one time, the transaction Will be regarded as one entire contract, though the prices are distinct ; and, consequently, if the whole purchase-money amounts to the minimum fixed by the statute, the case will be covered by the statute, though neither of the articles taken separately may be of that value.' A mere agree- ment to give credit, on account of a precedent debt, does not vali- date the sale.^ § 875. To take a case out of the seventeenth section, on the ground that the goods have been accepted and received, so as to come within the exception to the section, a com- ance and pliance with both requisites is necessary.' An accept- ''eceipt of . J r goods take ance and receipt of a substantial part of the goods, how- case out of ever, will be as operative as an acceptance and receipt of the whole .^ The acceptance may either precede or follow the receiving of the article, or may accompany such receiving.^ The authorization of an agent to receive does not imply authorization to accept.* The receipt must be of a character to preclude the vendor > Taylor's Ev. § 956 ; Baldey v. Parker, 2 B. & C. 37 ; 3 D. & K. 220, a. C. ; AUard v. Greasart, 61 N. Y. 1. See, also, Elliott v. Thomas, 3 M. & W. 170 ; Bigg V. Whisking, 14 Com. B. 195 ; Mills v. Hunt, 17 Wend. 333 ; 20 Wend. 431 ; Gilman v. Hill, 36 N. H. 311 ; Shindler v. Houston, 1 Comst. (N. Y.) 261. • ' Brabin v. Hyde, 32 N. Y. 519 ; Mattice v. Allen, 3 Keyes, 492 ; Teed V. Teed, 44 Barb. 96. a Cusaok «. Robinson, 1 B. & S. 299 ; Cross V. O'Donnell, 44 N. Y. 661 ; Caul- kins V. Hellman, 47 N. Y. 449 ; Hicks V. Cleveland, 48 N. Y. 84 ; Brewster w. Taylor, 63 N. Y. 587. See Reed, Stat. Frauds, §§ 260 et seq. * Morton u. Tibbett, 15 Q,. B. 434, per Ld. Campbell ; Kershaw v. Ogden, 34 L. J. Ex. 159 ; 3 H. & C. 717, S. C. ; Gardner v. Grout, 2 C. B. (N. S.) 340 ; Danforth k. Walker, 40 Vt. 257 ; At- wood V. Lucas, 53 Me. 508 ; Davis v. Eastman, 1 Allen, 422 ; Carver v. Lane, 4 E. D. Smith, 168; Dows v. Mont- gomery, 5 Rob. (N. Y.) 445 ; Rickey v. Tenbroeck, 63 Mo. 563. See Garfield V. Paris, 96 U. S. 557 ; Somers v. Mc- Laughlin, 57 Wis. 358 ; Farmer u. Gray, 16 Neb. 401 ; Reed, Stat. Frauds, §§ 264, 278, 280. A rescission, followed by an exchange of goods, Is not within the statute. Norton v. Simonds, 124 Mass. 19, citing Townseud v. Hargraves, 118 Mass. 325. 6 Cusack V. Robinson, 1 B. & S. 299 ; Morton v. Tibbett, 15 Q. B. 434. See Atwood V. Lucas, 63 Me. 508 ; Danforth V. Walker, 40 Vt. 257; Dugau v. Nichols, 125 Mass. 43 ; Basst). Walsh, 39 Mo. 192 ; Southwest Co. u. Stanard, 44 Mo. 71. 6 Nicholson v. Bower, 1 E. & E. 172 ; Hansom t. Armitage, 5 B. & A. 557; Norman v. Phillips, 14 M. & W. 276 ; Barney v. Brown, 2 Vt. 374 ; Snow v. Warner, 10 Met. (Mass.) 133 ; Out- water 0. Dodge, 6 Wend. 400 ; Reed, Stat. Frauds, §§ 275, 283 et seq. 31 § 875.] THE LAW OF EVIDBNCE. [book ir. from retaining any lien on the goods.* As long as a seller pre- serves his control over the goods, so as to retain his lien, he pre- vents the vendee from accepting and receiving them as his own, within the meaning of the statute.^ A sale in which the seller refuses to permit the buyer to take possession or control of the goods, but claims and asserts his lien as vendor, does not exhibit an acceptance under the statute.* The acceptance must be absolute and final.* It must be clearly and substantively proved ;" but it may take place subsequently to the making of the oral agreement." Merely picking out and marking goods by the vendee' in the ven- dor's shop does not, so it is said, deprive the vendor, even when he assents to it, of his right of lien.* The question of acceptance and ' Baldey v. Parker, 2 B. & C. 37, 44 ; 3 D. & R. 220, S. C. ; Maberley v. Sheppard, 10 Bing. 101, 102, per Tin- dal, C. J. ; Smith v. Surman, 9 B. & C. 561, 577, per Parke, J.; 4 M. & R. 455, S. C. ; Tempest o. Fitzgerald, 3 B. & A. 680, 684, per Holroyd, J. ; Carter v. Toussaint, 5 B. & A. 859, per Bayley, J. ; Holmes v. Hoskins, 9 Ex. R. 753 ; Cusaok v. Robinson, 1 B. & S. 308, per Blackburn, J. ; Gilman v. Hill, 36 N. H. 311 ; Green v. Merriam, 28 Vt. 801 ; Shindler v. Houston, 1 Comst. 261 ; Leven v. Smith, 1 Denio, 571 ; Ralph V. Stuart, 4 E. D. Smith, 627 ; Vincent v. Germond, 11 Johns. 283 ; Ward o. Shaw, 7 Wend. 404 ; South- west Co. V. Stanard, 44 Mo. 71. 2 Benjamin on Sales, Am. ed. 151 ; Reed, Stat. Frauds, §§ 260 S, 262, 272, 281, 283 ; Browne Stat. Frauds, §§ 317 et seq. ; Baldey v. Turner, 2 B. & C. 37; SafFord v. MoDonough, 120 Mass. 290. ' Safford v. MoDonough, 120 Mass. 290. * Reed, Stat. Frauds, §§ 269, 278, 280 et seq. ; Norman v. Phillips, 14 M. & W. 283, per Alderson, B. ; Smith v. Surman, 9 B. & C. 561, 577, per Parke, J. ; 4 M. & R. 466, 5. C. ; Howe v. Palmer, 3 B. & A. 321, 326, per Hol- royd, J. ; Hansom v. Armitage, 5 B. & 32 A. 559, per Abbott, C. J. ; Aeebal v. Levy, 10 Bing. 384, per Tindal, C. J. ; Stone u. Browning, 68 N.Y. 598 ; Bacon V. Eocles, 43 Wis. 227. See, as deny- ing proposition in text, Morton v. Tib- bett, 15 Q. B. 428. See, also, Parker V. Wallis, 5 E. & B. 21 ; and Currie v. Anderson, 29 L. J. Q. B. 90, per Crompton, J. ; 2 E. & E. 600, S. G. s Carver v. Lane, 4 E. D. Smith, 168 ; Stone V. Browning, 51 N. Y. 211 ; Clark V. Tucker, 2 Sandf. 157 ; Knight ». Mann, 120 Mass. 219. " Walker v. Mussey, 16 Mees. & W. 302; Davis ». Moore, 13 Me. 427; Sprague «. Blake, 20 Wend. 61 ; Mc- Knight V. Dunlop, 1 Seld. 542 ; Field V. Runkj 22 N. J. 525. ' Cusaok V. Robinson, 1 B. & S. 299 ; 30 L. J. a. B. 261, S. C. See Spencer V. Hale, 30 Vt. 314. Reed, Stat. Frauds, §§ 273 et seq. " Baldey v. Parker, 2 B. & C. 37 ; 3 D. & R. 220, S. C. ; Bill v. Bament, 9 M. & W. 36 ; Prootor v. Jones, 2 C. & P. 532 ; Kealy v. Tenant, 13 Jr. Law R. N. S. 394, said by Mr. Taylor to overrule Hodgson v. Le Bret, 1 Camp. 233 ; and Andei-son v. Soott, Ibid. 235, n. See Saunders v. Topp, 4 Ex. R. 390 ; and Acraman v. Morrioe, 8 Com. B. 449 ; Wardw. Shaw, 7 Wend. 404 ; and see contra, Browne on Frauds, § 325. CHAP. XI.] STATUTE OF FRAUDS. [§ 875. receipt is for the jury, to be determined by the circumstances of the particular case.* But ordinarily there is no delivery until the goods are under the dominion and exclusive control of the purchaser.^ Where the goods are ponderous or inaccessible, a constructive delivery will suffice f such, for example, as the giving up the key of the warehouse in which they are deposited, or the warehouse- man making an entry of transfer in his books, or the delivery of other indicia of property.^ Such acts, however, must be unequiv- ocal." Hence, it has been held that the mere acceptance and re- tainer, by the purchaser, of the delivery order of goods deposited 1 Morton v. Tibbett, 15 a. B. 441 ; Dodsley v. Varley, 12 A. & E. 632 ; 2 P. & D. 448, S. C. ; Langton <.. Big- gins, 4 H. & N. 402 ; Aldridge v. John- son, 7 E. & B. 885 ; Kershaw v. Ogden, 34 L. J. Eq. 159 ; 3 H. &C. 717, S. C. ; Elmore t). Stone, 1 Taunt. 458 ; Smith v. Surman, 9 B. & C. 570; Castle v. Sword- er, 6 H. & N. 828, reversing a decision in Ex., reported 5 H. & N. 281 ; Carter K. Tonssaint, 5 B. & A. 855 ; 1 D. & R. 515, 5. C. ; Beaumont u. Brengeri, 5 Com. B. 301 ; Holmes v. Hoskins, 9 Ex. R. 753 ; Marvin v. Wallace, 6 E. & B. 726; Taylor u. Wakefield, 6 E. & B. 765 ; Edau v. Dudfleld, 1 Q. B. 302 ; 4 P. & D. 656, S. C. ; Lillywhite v. De- vereux, 15 M. & W. 289, 291. See Boynton v. Veazie, 24 Me. 286 ; Green V. Merriam, 28 Vt. 801 ; Wilkes v. Fer- ris, 5 .Johns. E. 344 ; Benford v. Schell, 55 Penn. St. 393 ; Phillips v. Hunne- well, 4 Greenl. 376 ; Gilman v. Hill, 36 N. H. 311 ; Ely v. Ormsby, 12 Barb. 570 ; Baily v. Ogden, 3 Johns. R. 420 ; Simmonds v. Humble, 13 Com. B. N. S. 258. See observation in Reed, Stat. Frauds, §§ 261, 303. As to the effect of handing over a sample of the goods, see Gardner v. Grout, 2 Com. B. N. S. 340. In Marshall v. Green, L. R. 1 C. P. D. 36, it was held that where the ven- dee, a timber merchant, who bought sonle growing trees by verbal contract, VOL. II. — 3 cut down six of them and sold the lops and tops, the vendor was too late in attempting to countermand the sale. 2 Outwater v. Dodge, 7 Cow. 85 ; Marsh v. Rouse, 44 N. Y. 643 ; Safford V. MoDonough, 120 Mass. 290. Reed, Stat. Frauds, §§ 281 et seq. 3 See Reed, Stat. Frauds, §§ 297 et seq. ; Townsend v. Hargraves, 118 Mass. 325 ; Parker ^t. Jervis, 3 Keyes, 271 ; Phillips v. Mills, 55 Ga. 325. ' Chaplin v. Rogers, 1 East, 195, per Ld. Keuyon ; Brinley o. Spring, 7 Greene, 241 ; Chappel v. Marvin, 2. Aik. 79 ; Leonard v. Davis, 1 Black (U. S.), 476 ; Badlam v. Tucker, 1 Pick. 389 ; Higgins v. Cheesman, 9 Pick. 6 ; Turner v. Coolidge, 2 Met. (Mass.) 350; Jewett v. Warren, 12 Mass. 300 ; Wilkes v. Ferris, 5 Johns; R. 344 ; Calkins v. Lookwood, 17 Conn. 174; Benford v. Schell, 65 Penn. St. 393 ; Harvey v. Butchers, 39 Mo. 211; Sharon v. Shaw, 2 Nev. 289. See Reed, Stat. Frauds, §§ 280, 297 et seq. 5 Nicholle v. Plume, 1 0. & P. 272, per Best, C. J.; Edan v. Dudfleld, 1 Q. B. 307. See Boardman v. Spooner, 13 Allen, 853 ; Gushing v. Breed, 14 Allen, 376;,Remick u. Sanford, 120 Mass. 309 ; Wilkes v. Ferris, 5 Johns. R. 335 ; Stanton v. Small, 3 Sandf. 230. 33 § 876.] THE LAW OF EVIDENCE. [book II. ■with a warehouseman as agent of the vendor will not amount to an actual receipt of the goods, so as to bind the bargain.* To work a transfer, the delivery order must be lodged by the purchaser with the warehouseman, who must agree to become the agent of the vendee.^ It was at one time supposed that where goods, orally pur- chased, are delivered to a carrier or wharfinger named by the vendee, such delivery was sufficient to satisfy the statute.* The better opinion, however, now is, that though the delivery to the carrier may be a delivery to the purchaser, the acceptance of the carrier is not an ac- ceptance by the purchaser, unless he be authorized by him to accept,* but when so authorized the delivery is sufficient.' Acceptance by the customary carrier, or expressman, is not per se sufficient." The carrier's authority from the vendee, however, is a question of fact.^ It must also be remembered, that a vendee may be bound by the retention for an unreasonable time, by his general agent, of goods, when the latter has been authorized by the former to examine their quality.' § 876. Accept- ance by carrier or express- man is not acceptance by vendee. 1 M'Ewan v. Smith, 2 H. of L. Cas. 309. 2 Farina v. Home, 16 M. & W. 119, 123, per Parke, B.; Bentall v. Burn, 3 B. & C. 423 ; 5 D. & R. 284, S. C. See, to same effect, Gushing v. Breed, 14 Allen, 376; Stanton v. Small, 3 Sandf. 230 ; Franklin o. Long, 7 Gill & J. 407 ; Williams v. Evans, 39 Mo. 201. See Hankins v. Baker, 46 N. Y. 666. ■■' Hart V. Sattley, 3 Camp. 528, per Chambre, J. See Dawes v. Peck, 8 T. R. 330, and Button v. Solomonson, 3 B. & P. 582. See Reed, Stat. Frauds, §§ 284 et seq. * Johnson v. Dodgson, 2 M. & W. 656, per Parke, B. ; Forstburg «. Mining Co., 9 Cush. 117 ; Atherton ti. Newhall, 123 Mass. 141 ^ Rodgers v. Phillips, 40 N. Y. 519 ; Kutz u. Fleis- cher, 67 Cal. 93. See Thompson v. 34 Menck, 2 Keyes, 82 ; Acebal v. Levy, 10 Bing. 376 ; 4 M. & Sc. 217, S. C.\ Coats V. Chaplin, 3 Q. B. 483 ; Nichol- son I. Bower, 1 E. & E. 172; Norman V. Phillips, 14 M. & W. 277 ; Meredith V. Meigh, 2 E. & B. 364 ; Hunt v. Heoht, 8 Ex. R. 814 ; Hart ». Bush, R, B. & E. 494 ; Coombs v. Bristol & Ex. Ry. Co., 27 L. J. Ex. 401 ; Smith v. Hudson, 6 B. & S. 431; AUard v. Greasart, 61 N. Y. 1, and cases cited to note 2, § 875, p. 34. See cases cited in Reed, Stat. Frauds, §§ 284 et seq. "= Wilcox Co. V. Green, 72 N. Y- 17. 5 Frostburg v. Mining Co., 9 Cush. 117. See Meredith i». Meigh, 2 E. & B. 364. ' Snow V. Warner, 10 Met. 132; Hawley v. Keeler, 53 N. Y. 114. ■^ Norman v. Phillips, 14 M. & W. 283. CHAP. XI,] STATUTE OF FRAUDS. [§ 878. § 877. By the statute of frauds, as well as by the Code of New York, and those of several other states, payment of part p^^y^j will take a parol sale out of the statute,* and it is now payment held necessary that this payment should be part of the case out of transaction in order to validate the sale.* A tender, un- ^*^*^'^- accepted, is insufficient.' And the payment must be actual.^ A mere agreement to pay, without corresponding credit, or some equiv- alent act of acceptance taking place, is not by itself enough.* IV. GUARANTEES. § 878. The fourth section of the statute of frauds, which has been held to be inapplicable to deeds,* enacts, that no action shall be brought whereby to charge any executor must be in or administrator upon any special promises to answer ^"''™^- damages out of his own estate ; or any person upon any special promise to answer for the debt, default, or miscarriage of another ; or upon any agreement made in consideration of marriage ; or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them ; or upon any agreement that is not to be performed within one year from the making thereof ; un- less the agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person there- unto by him lawfully authorized.' An oral guarantee of the note 1 Reed, Stat. Frauds, §§ 229, 270, 302 ; Ely v. Ormsby, 12 Barb. 570 ; 283, 303 ; Langfort v. Tyler, 1 Salk. Brand v. Brand, 49 Barb. 346 ; Wal- 113 ; Blenkinsop v. Clayton, 7 Taunt, rath v. Ingles, 64 Barb. 265 ; Brabin 697. V. Hyde, 32 N. Y. 519. 2 Jackson v. Tapper, 101 N. Y. 515 ; 6 Cherry v. Heming, 4 Ex. R. 631. though see Bissell c Balcom, 39 N. Y. ' As to meaning of words "law- 278; reversing S. C, 40 Barb. 98; fully authorized, " see Norris «. Cooke, Allis V. Read, 45 N. Y. 142 ; Webster 30 L. T. 224 ; and see generally as to V. Zielly, 52 Barb. 482 : Hunter v. application of statute, Mahan v. U. S., Wetsell, 57 N. Y. 375 ; Organ v. Stew- 16 Wall. 143 ; Durant «. Allen, 48 Vt. art, 60 N. Y. 413. 58 ; Calkins u. Falk, 1 Abb. (N. Y.) 3 Edgerton v. Hodge, 41 Vt. 676 ; App. 291 ; Nugent v. Wolfe, 111 Penn. Reed, Stat. Frauds, ? 230. St. 471 ; Norris «. Blair, 39 Ind. 90 ; * Artcher v. Zeh, 5 Hill, 200 ; Mat- Miller v. Neihaus, 51 Ind, 401 ; First tice V. Allen, 33 Barb. 543. See Ire- Nat. Bk. v. Bennett, 33 Mich. 520 land V. Johnson, 28 How. Pr. 463. Vanghau v. Smith, 65 Iowa, 579 6 Walker v. Mussey, 16 M. & W. Studley v. Earth, 54 Mich. 6. 35 § 879.] THE LAW OF EVIDENCE. [book II. of a third person, given in payment of a debt of the guarantor, is within the statute,^ and so is a promise to sign a certain bond as se- curity conditionally,' and a promise by a railway company to pay on account of a contractor, to whom it was indebted, the sum due by the contractor to a sub-contractor.' Some consideration must be inferrible from the writing, and its terms must be definite, or it will not hold,^ though under some statutes it is enough if the con- sideration may be presumed from the character of the transaction itself without any direct statement." § 879. An important distinction exists between cases where, though goods are supplied to a third party, credit is given solely to the defendant, and cases where the per- son for whose use the goods are furnished is primarily liable, and the defendant only undertakes to pay for them in the event of the other party making default. An original promise, as above stated, need not be in writing, under the statute ; a collateral promise has to be in writing.^ In the application of this distinction, it has been The statu- tory re- Btriction as to guar- antees re- lates to collateral, not orig- inal, prom- Reed, Stat. Frauds, §§ 25 et seq.; Shaaber w. BusUong, 105 Penn. St. 514; Morrissey v. Kinsey, 16 Neb. 17. 1 Gill V. Herriok, 111 Mass. 501 ; Dows V. Swett, 120 Mass. 322 ; Hauer V. Patterson, 84 Penn. St. 274. See Clement's App., 52 Conn. 464. For criticism of Dows v. Swett, supra, see 2 A. M. L. Reg. 473 ; 27 Alb. L. J. 323. « Haynes v. Burkam, 51 Ind. 130. » Laidlow v. Hatch, 75 111. 11. * Browne, Stat. Frauds, §§ 190-2; Wain V. Warlters, 5 East, 10 ; Ackley V. Parmenter, 98 N. Y. 425 ; Deutsoh V. Sanders, 46 Md. 164 ; Vaughan u. Smith, 58 Iowa, 553 ; Hite v. Wells, 17 111. 90 ; Foster v. Napier, 74 Ala. 393 ; Agnew, Stat. Frauds, § 79. 6 Sanders u. Barlow, 21 Fed. Rep. 836 ; Goodnow v. Bond, 69 N. H. 150. This is now the case in England. Agnew, Stat. Frauds, § 79; Reed, Stat. Frauds, §§ 25, 71 et seq. " Reed, Stat. Frauds, §§ 20, 30, 37 e« 36 seq., 84. As to the discussion of the so-called " fraud rule," see Reed, Stat. Frauds, §§ 54 et seq. ; Taylor's Ev. § 941 a, citing Birkmyr v. Darnell, Salk. 27 ; 1 Smith L. C. 262, S. C. ; Forth v. Stanton, 1 Wms. Saund. 211a-211e; Barrett v. Hyndman, 3 Ir. Law R. 109 ; Fitzgerald v. Dressier, 29 L. J. C. P. 113 ; 7 Com. B. N. S. 374, S. C. ; Mal- lett V. Bateman, 16 Com. B. N. S. 530; 35 L. J. C. P. 40, in Ex. Ch. ; 1 Law Rep. C. P. 168 ; and 1 H. & R. 109, S. C. See Orrell v. Coppock, 26 L. J. Ch. 269 ; Morse v. Nat. Bank, 1 Holmes, 209; Williamson v. Hill, 3 Maokey, 100 ; Hunter v. Randall, 62 Me. 423 ; Demerrltt v. Blckford, 58 N. H. 523 ; Bailey v. Bailey, 56 Vt. 398 ; Bellows V. Sowles, 57 Vt. 164 ; Alger v. Soo- ville, 1 Gray, 391 ; Jepherson v. Hunt, 2 Allen, 423; Wills v. Brown, 118 Mass. 137 ; Walker v. Hill, 119 Mass. 249; Dows v. Swett, 120 Mass. 414; Stratton v. Hill, 134 Mass. 27 ; Dows V. Scott, 134 Mass. 140 ; Klngsley v. CHAP, xr.] STATUTE OF FRAUDS. [§ 879. held that agreements by factors to sell upon del credere commission do not fall within the fourth section of the statute of frauds, and consequently, need not be in writing.^ But with this exception cases of this kind must be determined on the concrete facts, as to whether the evj^ence shows an original or a collateral promise.^ It is plain that an agreement, upon a new and sufficient consideration to pay another's debt, is not within the statute.* Balcome, 4 Barb. 131 ; Larson v. Wy- man, 14 Wend. 246 ; Mallory v. Gillett, 21 N. Y. 412 ; Dufify v. Wunsoh, 42 N. Y. 243; Booth v. Eighmie, 60 N. Y. 238 ; Kessler v. Sonneborn, 10 Daly, 383 ; Smart v. Smart, 97 N. Y. 559 ; Simmons v. Moore, 100 N. Y. 140; Schmidt v. Cowperthwait, 12 Daly, 381 ; Merriman v. Liggitt, 1 Weekly Notes, 379 ; Jefferson v. Slagle, 66 Penn. St. 202 ; Townsend v. Long, 77 Penn. St. 143 ; Merriman u. McManus, 102 Penn. St. 102 ; Huyler v. Atwood, 26 N. J. Eq. 504; Teeters v. Lamborn, 43 Ohio St. 144 ; Clifford v. Luhrlng, 69 III. 401 ; Bunting v. Darbyshire, 75 111. 408 ; Patmor v. Haggard, 78 III. 607; Power v. Rankin, 114 111. 52; Hall V. Woodln, 35 Mich. 67 ; Suther- land V. Carter, 52 Mich. 151 ; Larsen V. Jensen, 53 Mich. 151 ; Morris v. Os- terhout, 55 Mich. 262; Mulcrone v. Lumber Co., 55 Mich. 622; Chamber- lin V. Ingalls, 38 Iowa, 300 ; Lester v. Bowman, 39 Iowa, 611 ; Langdon v. Richardson, 58 Iowa, 610; Dickenson V. Colter, 45 Ind. 445 ; Horn v. Bray, 51 Ind. 555 ; Pettit w. Bradeu, 55 Ind. 201 ; Shaffer u. Ryan, 84 Ind. 140 ; Boyce v. Murphy, 91 Ind. 1 ; Louis- ville, etc., R. R. V. Caldwell, 98 Ind. 245 ; Elson v. Spraker, 100 Ind. 374 ; Windell v. Hudson, 102 Ind. 521 ; Wolke V. Fleming, 103 Ind. 521 ; West V. O'Hara, 55 Wis. 645 ; Hoile V. Bailey, 58 Wis. 434; Weisel v. Spenoe, 59 Wis. 301 ; Kelley v. Schupp, 60 Wis. 76 ; De Witt v. Root, 18 Neb. 576 ; Clay v. Tyson, 19 Neb. 530 ; Wil- son V. Hentges, 29 Minn. 102 ; White- hurst V. Hyman, 90 N. C. 487 ; Davis V. Tift, 70 Ga. 52 ; Howell v. Field, 70 Ga. 592 ; Baldwin v. Hiers, 73 Ga. 739 ; Lehman v. Levy, 69 Ala. 48 ; Madden V. Floyd, 69 Ala. 221 ; Thornton v. Williams, 71 Ala. 555 ; Thornton v. Guice, 73 Ala. 321 ; Carlisle v. Camp- bell, 76 Ala. 247 ; Hamilton v. Hodges, 30 La. An. 1290 ; Broom v. McGrath, 53 Miss. 243 ; Green o. Estes, 82 Mo. 337 ; Chapline v. Atkinson, 45 Ark. ,67 ; Spanu v. Cockran, 63 Tex. 240. ' Reed, Stat. Frauds, § 75 ; Couturier V. Hastie, 8 Ex. R. 40 ; Wickham v. Wickham, 2 K. & J. 478, per Wood, V. C. ; Wolff .;. Koppell, 5 Hill, 458 ; 5. C. 2 Denio, 368 ; Bradley v. Richard- son, 23 Vt. 720 ; Swan v. Nesmith, 7 Pick. 220. 2 1 Wms. Saund. 211 b; 1 Smith L. C. 262. See Mouutstepheu v. Lake- man, Law Rep. 5 Q. B. 613 ; S. C. L. R. 7 Q. B. 196 ; S. C. L. R. 7 H. L. 17 ; Richardson v. Robbins, 124 Mass. 105 ; Rodocanachi v, Buttrick, 125 Mass. 134 ; Crim v. Fitch, 53 Ind. 214 ; Hay- ward V. Gunn, 82 111. 385 ; Hardmau V. Bradley, 85 111. 162; Barden v, Briscoe, 36 Mich. 254 ; Comstock v. Newton, 36 Mich. 277 ; Radcliffe v. Poundstone, 23 W. Va. 724; Hill v. Frost, 69 Tex. 25. See Reed, Stat. Frauds, §§ 37 et seq. 3 Glidden v. Child, 122 Mass. 433 ; Gold !!. Phillips, 10 Johns. R. 412; Myers v. Morse, 15 Johns. R. 425 ; Farley v. Cleveland, 9 Cow. 639 ; Union Bank v. Coster, 3 N. Y. 203 ; 37 § 880.] THE LAW OP EVIDENCE. [book II. tute a guarantee under the statute, the indebted- ness of the person guaranteed must be continu- ous. § 880. The statute, it will be remembered, limits the guarantees, T nsti- ''^^ich it requires to be in writing, to promises " to an- swer for the debt, default, or miscarriage of another.'" It has been consequently held, that to bring the caSe within the statute, the liability of that yther must con- tinue, notwithstanding the promise.^ Thus where the defendant, in consideration that the plaintiff would dis- charge out of custody his debtor taken on a ca. sa., promised to pay the debt, it was held not to be necessary that this promise should be in writing, the reason being that the debtor's liability is at an end when he is discharged, and the promise of the defendant cannot take eifect till after the discharge.* It has, however, been held, where an execution debtor was discharged out of custody upon, giving a warrant of attorney, to, secure the payment of his debt by instalments, and the defendant, knowing of this war- rant of attorney, undertook, in consideration of the discharge, to see the debt paid, that as the debtor's liability was kept alive by the warrant, the defendant's undertaking should be regarded in the light of a collateral guarantee, and, as such, was a promise within the meaning of the statute.^ It is said, also, to make no difference whether the goods were delivered to the third party," or the debt in- Sanders v. Gillespie, 64 Barb. 628 ; Tallmau i;. Bresler, 65 Barb. 369; Griffin v. Keith, 1 Hilt, 58; Neal v. Bellamy, 73 N. C. 384 ; Threadgill .,. Lendon, 76 N. C. 24; Mobile R. R. v. Jones, 57 Ga. 198 ; Bissig v. Britton, 59 Mo. 204 ; Gridley v. Capen, 72 111. 11. Bee Green v. Disbrow, 59 N. Y. 334. As to the Pennsylvania rule, see Maule v. Buoknell, 50 Penn. St. 39, qualifying in part Leonard v. Vre- denburgh, 8 Johns. R. 39. > See Maorory v. Scott, 5 Ex. R. 907. 2 See Gull v. Lindsay, 4 Ex. R. 45, 52; Butcher v. Stuart, 11 M. & W. 857, 873 ; Lane v. Burghart, 1 Q. B. 933, 937, 938 ; 1 G. & D. 312, S. C. Cf. Reader v. Kingham, 13 Com. B. N. S. 344 ; Anderson u. Davis, 9 Vt. 136 ; Watson ,j, Jacobs, 29 Vt. 169; Stone V. Symmes, 18 Pick. 467; Curtis v. Brown, 6 Gush. 492; Wood v. Corco- 38 ran, 1 Allen, 405 ; Watson v. Randall, 20 Wend. 201 ; Meriden Co. v. Zingsen, 48 N. Y. 247 ; AUshonse ». Ramsey, 7 Whart. R. 331 ; Andre v. Bodman, 13 Md. 241 ; Draughan v. Bunting, 9 Ired. L. 10 ; Click .;. McAfee, 7 Port. 62; Eddy v. Roberts, 17 111. 505; Welch V. Marvin, 36 Mich. 59. See Reed, Stat. Frauds, § 94 et seq., 99 etseq. As to modiiioation of rule, see ibid. § 96. s Bird u. GammQn, 3 Bing. N. C. 883 ; 5 Scott, 213 ; Goodman istbe ° . ^ specihcally third party, and to prove a promise by the defendant to and fully pay the debt of another, as a new and original under- taking, and not a contract of suretyship, must be clear and satisfac- tory ; otherwise the case will fall within the operation of the statute of frauds, requiring the promise to be in writing."* V. MARRIAGE SETTLEMENTS. § 882. The statute further makes writing an essential to " agree- ments made in consideration of These marriage. words, it has been held, do not embrace mutual promises setuements to marry ; and therefore, notwithstanding the act, such ""jjij,^^ ^°' promises may be orally made." It should also be ob- served that though there may be, in other respects, such a part performance of marriage contracts as to take the case out of the 1 Green v. Cresswell, 10 A. & E. 453, 458 ; 2 P. & D. 430, S. C, over- ruling the dicta of Bayley and Parke, JJ., in Thomas v. Cook, 8 B. & C. 728 ; 3 M. & R. 444, S. C. ; and explaining Adams u. Dansey, 6 Bing. 506. For other oases on this point, see supra, § 879. ^ Cripps V. HartnoU, 4 B. & S. 414, per Ex. Ch., overruling S. C.2S. k S. 697. See Kelsey v. Hibbs, 13 Ohio St. 340. Eeed, Stat. Frauds, § 144. 3 Kirkham v. Marter, 2 B. & A. 613 ;. Turner v. Hubbell, 2 Day, 457 ; Rich- ardson V. Crandall, 48 N. Y. 348. ■* Eshleman v. Harnish, 76 Penn. St. 97 ; affirmed in Haverly v. Mercur, 78. Penn. St. 263; Reed, Stat. Frauds,. §§ 74, 84 et seg. As to how far an ir- regular indorsement is a guarantee,, see Reed, Stat. Frauds, § 353. -Reed, Stat. Frauds, §§ 172-186;, Taylor's Ev. § 945 ; B. N. P. 280 c. ;. Short V. Stotts, 58 Ind. 29 ; Blackburn. V, Mann, 85 111. 222. 39 § 882.] THE LAW OF EVIDENCE. [book II. Statute,^ yet that the marriage per se is not a part performance within this rule.^ Hence if a suitor orally promises to settle prop, erty on his intended wife, and the woman, relying on his honor, marries him, she cannot compel the performance of the settlement.' But it is now ruled ia England, that an oral agreement made hefore marriage will be enforced in equity, if, subsequently to the mar- riage, it has been recognized and adopted in writing ;* though there 1 Thynne v. Glengall, 2 H. of L. Cas 131 ; Clinan v. Cooke, 1 Soh. & Lef. 41 Kine v. Balfe, 2 Ball & B. 347, 348 Surcome v. Pinniger, 3 De Gex M. & Q-, 671 ; Taylor v. Beech, 1 Ves. Sen. 297 Clark u. Pendleton, 20 Conn. 508 Dugau ;;. Glttings, 3 Gill, 138 ; Dunn 0. Tharp, 4 Ired. Eq. 7. 2 Hammersley v. Baron de Biel, 12 CI. & Fin. 64, per Lord Cottenliam ; Redding u. Wilks, 3 Br. C. C. 401; Lassenoe v. TieAiey, 1 M. & Gord. 571, 572, per Ld. Cottenham ; 2 Hall & T. 115, 134, 135, S. C. ; Warden v. Jones, 23 Beav. 487 ; aff. on app. 2 De Gex & J. 76, 84 ; Finch v. Finch, 10 Ohio St. 501. See expressions in Hatcher v. Robertson, 4 Strobh. Eq. 179. See Reed, Stat. Frauds, §§ 172 et seq. " Montacute v. Maxwell, 1 P. Wms. 619 ; Caton v. Catou, Law Rep. 1 Ch. Ap. 137 ; 2 Law Rep. H. L. 127. See, for converse, Goldioutt v. Townsend, 28 Beav. 445. An oral contract to marry on condition of the execution of a specific ante-nuptial contract, the two being an indivisible transaction, is within the statute. Caylor v. Roe, 99 Ind. 1. In Newman u. Piercey, High Court Chancery Division, 4 Ch. D. 41, 25 W. R. 36, a father, before the marriage of his daughter, told her and her in- tended husband that he had given her a leasehold house on her marriage. Immediately after the marriage, the daughter and her husband took pos- session of the house, paid the ground- rent, and exercised acts of ownership. The father, after the marriage, refused 40 to complete the gift by assignment. He continued to pay instalments of the purchase-money to the building society through which he had purchased it, but a sum of £110 was due to the so- ciety at the time of his death, which took place four years after the marriage. Held : (1.) That the possession follow- ing the verbal gift was a sufficient part performance to take the case out of the statute of frauds ; and (2.) That the £110 must be paid out of the intestate's general assets. See, however, as to redress in cases of fraud. Baron de Biel v. Hammersley, 3 Beav. 469, 475, 476, per Ld. Lang- dale ; 12 CI. & Fin. 45, 64 ; Williams v. Williams, 37 L. J. Ch. 854, per Stuart, V. C. See, also, Mannsell v. White, 4 H. of L. Cas. 1039 ; Bold v. Hutchin- son, 20 Beav. 250 ; 5 De Gex, M. & G. 558, S. C. ; Jameson v. Stein, 21 Beav. 5 ; Kay v. Crook, 3 Sm. & Giff. 407. * Taylor's Ev. § 945, relying on Barkworth v. Young, 26 L. J. Ch. 153, 157, per Kindersley, V. C. ; Hammers- ley V. Baron de Biel, 12 CI. & Fin. 64, per Ld. Cottenham, citing Hodgson v. Hutchinson, 5 Vin. Abr. 522 ; Taylor v. Beech, 1 Ves. Sen. 297 ; and Montacute V. Maxwell, 1 Str. 236 ; and question- ing Randall v. Morgan, 12 Ves. 73, where Sir W. Grant expressed serious doubt upon the subject. See 12 CI. & Fin. 86, per Ld. Brougham ; and 3 Beav. 475, 476, per Ld. Langdale. Also Caton v. Caton, L. R. 1, Ch. Ap. 137 ; 35 L. J. Ch. 292, S. C, overrul- ing S. C. as decided by Stuart, V. C, 34 L. J. Ch. 564. CHAP. XI.] STATUTE OF FRAUDS. [§ 883. will be no interference, unless it appear that the marriage was con- tracted on the faith of the agreement.^ It has also been held that if there has been a part performance of a parol agreement by the entry on and enjoyment by a married couple of the property agreed to be given to them, they assuming the burdens on such property, this takes the case out of the statute.^ VI. AGREEMENTS IN FUTUKO. § 883. The statutory prescription, that an agreement riot to he performed within a year from the making thereof must be in writing, has been held not to operate where the contract is capable of being performed on the one side or on the other within a year.' It has also been held not to extend to an agreement made by a contractor to allow a stranger to share in the profits of a contract that is incapable of being completed within a year, because such an agreement amounts to nothing more than the sale of a right which is transferred entire on the bal-gain being struck.* It is further held that the statute is inapplicable in any case where the action is Agree- ments not to be per- formed "within a year must be in writ- ing. 1 Ayliflfe v. Tracy; 2 P. Wms. 65. See Chase v. Fitz, 132 Mass. 359. 2 Ungley v. Ungley, L. R. 4 Ch. D. 73 ; 35 L. T. R. 619 ; L. R. 5 Ch. D. 887. 3 Reed, Stat. Frauds, §§ 187 et seq. ; Cherry v. Heming, 4 Ex. R. 631 ; and Smith u. Neale, 2 Com. B. N. S. 67 ; hoth recognizing Donellan v. Read, 3 B. & Ad. 899. See Taylor's Ev. § 946 ; S. P., Holbrook v. Armstrong, 10 Me. 31; Cabot v. Hasklns, 3 Pick. 83; Greene v. Harris, 9 R. I. 401 ; Hodges V. Man. Co., 9 R. I. 482; Hardesty v. Jones, 10 Gill & J. 404 ; Cole v. Sin- gerly, 60 Md. 343 ; Bates v. Moore, 2 Bailey, 614; Compton v. Martin, 5 Rich. 14; Johnson v. Watson, 1 Ga. 348 ; Rake v. Pope, 7 Ala. 161 ; Dickson v. Frisbee, 52 Ala. 165 ; Sug- gett V. Cason, 26 Mo. 221 ; Haugh v. BIythe, 20 Ind. 24 ; Marley v. Noblett, 42 Ind. 85 ; Curtis v. Sage, 35 111. 22 ; Blair v. Walker, 39 Iowa, 406 ; Lar- rimer r. Kelley, 10 Kans. 298 ; Sutphen u. Sutphen, 30 Kans. 510 ; Gonzales v. Chartier, 63 Tex. 36. See Riddle v. Backus, 38 Iowa, 81 ; Dougherty v. Rosenberg, 62 Cal. 32. But the doc- trine of Donellan v. Reed has been emphatically repudiated in Frary v. Sterling, 99 Mass. 461 ; Broadwell v. Getman, 2 Denio, 87 ; Pierce v. Paine, 28 Vt. 34 ; Emery v. Smith, 46 N. H. 151 ; 1 Smith's Leading Cas. 145, Am. ed. ; Browne, Stat. Frauds, §§ 289-90. That the writings may be helped out by collateral papers, see Beckwith v. Talbot, 95 tJ. S. 289. That the ques- tion is one of fact, see Farwell o. Till- son, 76 Me. 227. The statute does not apply to agreements to marry. Brick V. Grapner, 36 Hun, 52. ■■ M'Kay v. Rutherford, 6 Moo. P. C. R, 413, 429. 41 § 883.] THE LAW OP EVIDENCE. [book II. brought upon an executed consideration.* A part performance, however, is not of itself sufficient to take the case out of the statute ; but whenever it appears, either by express stipulation, or by infer- ence from the circumstances, that the contract is not to be completed on either side within the year, written proof of the agreement must be given.^ A part performance during the year will not be suffi- cient in such case.^ Thus, where a servant is orally hired for a year's service, the service to begin at a future day, he cannot main- tain an action against his master for discharging him before the expiration of the year.* It should be added, that the mere fact that the contract may be determined by the parties within the year will not take the case out of the statute, if by its terms it purports to be an agreement which is not to be completely performed till after the expiration of that period.' It is otherwise if the agree- ment is silent as to the time within which it is to be performed, and its duration rest's upon a contingency, which is probable, but which may or may not happen within the year f or when the gist of the ' Knowlman v. Bluett, L. R. 9 Ex. 307. See Taylor's Ev. §§ 893, 900-2, 953-4 ; Souch v, Strawbridge, 2 Com. B. 814, per Tindal, C. J. ; Barkley v. E. R., 71 N. Y. 205. See Re Pentre- guinea Coal Cb., 4 De Gex, F. & J. 541. 2 Boydell v. Drummond, 11 East, 142, 166, 159; Levlson c. Stix, 10 Daly, 229 ; Reinheimer v. Carter, 31 Ohio St. 579 ; Groves v. Cook, 88 Ind. 169 ; Mallett c. Lewis, 61 Miss. 105. A contract for an insurance to begin within the year is not within the statute. Wiebeler v. Ins. Co., 30 Minn. 464. 3 Lockwood V. Barnes, 3 Hill, 128 ; Wilson V. Martin, 1 Den. 602 ; Day v. R. R., 31 Barb. 548. * Braoegirdle v. Heald, 1 B. & A. 722 ; Snelling v. Huntingfield, 1 C, M. & R. 20 ; 4 Tyr. 606, S. C. ; Giraud v. Rich- mond, 2 Com. B. 835. See Cawthorne V. Cordrey, 13 Com. B. N. S. 406 ; Banks V. Crossland, L. R. 10 Q. B. 97 ; Nones V. Homer, 2 Hilton, 118 ; Sheehy v. Ada- rene, 41 Vt. 541 ; Kelly v. Terrell, 26 42 Ga. 551 ; Shipley v. Patton, 21 Ind. 169. 5 Birch V. Ld. Liverpool, 9. B. & C. 392, 395 ; 4 M. & R. 380, S. C. ; Rob- erts V. Tucker, 3 Ex. R. 632 ; Dobson V. Collis, 1 H. & N. 81 ; Pentreguinea Coal Co. re, 4 De Gex, P. & J. 541 ; R. u. Herstmonoeaux, 7 B. & C. 555, per Bailey, J. ; Parks u. Francis, 50 Yt. 626 ; Sutclifife v. Atlantic Mills, 13 R. L. 480 ; Kimmins v. Oldham, 27 W. Va. 258. 6 Taylor's Ev. § 947 ; Reed, Stat. Frauds, §§ 192 et seq. ; Souch k. Straw- bridge, 2 Com. B. 808; Ridley v. Ridley, per Romilly, M. R. ; 34 Beav. 478 ; Wells v. Horton, 4 Bing. 40 ; 12 Moore, 177, 5. C. ; Gilbert v. Sykes, 16 East, 154 ■' Peter c. Compton, Skin. 353 ; 1 Smith L. C. 283, S. C. ; Fenton v. Emblers, 3 Burr. 1278 ; 1 W. Bl. 363, iS. C. See Mayor v. Payne, 3 Bing. 285 ; 11 Moore, 2 6\ C. ; Murphy v. Sullivan, 11 Ir. .Inr. N. S. Ill ; Far- rington v. Donohue, 1 I. R. C. L. 675 ; Linscott V. Molntire, 15 Me. 201 ; Kent CHAP. XI.] STATUTE OF FRAUDS. [§ 884. agreement is that either party may rescind the contract within a year.^ But a party who refuses to go on with such an agreement, after deriving a benefit from part performance, must pay for what he has received.^ The statute has been held applicable to contracts for the sale of lands.* But it does not apply to tenancies from year to year ;* nor to agreements to execute a lease to begin at some future time.* VII. WILLS. § 884. It is beyond the compass of the present treatise to analyze the statutory provisions, adopted in the several states of the American Union, to regulate the execution and proof ^'ii ™"s* ' o 1 be executed of wills. In England, under the Will Act of 15 & 16, in conform- Vict. modifying prior legislation, no signature shall statute. be operative to give effect to any disposition' or direction ^^ '^cts which is underneath or which follows it, nor shall it give effect to any disposition or direction inserted after the signature shall be made. Under this statute no other publication than that prescribed is necessary ;* and a testamentary appointment is good, if in conformity with the act, though the instrument establishing it specifies additional solemnities.^ Under the New York statute, V. Kent, 18 Pick. 569 ; Lapham v. Whipple, 8 Met. 59 ; Plimpton v. Cur- tis, 15 Wend. 336 ; Artoher v. Zeh, 5 Hill, 200 ; Blakeney v. Goode, 30 Ohio St. 350; Jones u. Pouch, 41 Ohio St. 146; Hefliu a. Milton, 69 Ala. 354; Brigham v. Carlisle, 78 Ala. 243 ; Chaffe u. Benoit, 60 Miss. 34. See Stout V. Ennis, 28 Kan. 706. ' Reed, Stat. Frauds, § 190 et seq.; Birch u. Liverpool, ut supra; Walker V. Johnson, 94 U. S. 424 ; McPher- son V. Cox, 96 U. S. 404 ; Sherman v. Trans. Co., 31 Vt. 162 ; Somerhy v. Buntin, 118 Mass. 279 ; Trustees o. Ins. Co., 19 N. Y. 305 ; Weir v. Sill, 2 Lans. 278 ; Argus Co. o. Albany, 7 Lansing, 264 ; 55 N. Y. 498 ; Kent v. Kent, 62 N. Y. 560 ; Harris v. Porter, 2 Harr. (Del.) 27 ; Southwell v. Bees- ley, 5 Oreg. 143 ; Frost'f. Tarr, 53 Ind. 390. 2 Day V. R. R., 51 N. Y. 583. s Pall V. Hazelrigg, 45 Ind. 576 ; citing Boydell v, Drummond, 11 East, 142 ; Bracegirdle u. Heald, 1 B. & Aid. 723 ; Sobey v. Brisbee, 20 Iowa, 105 ; Young v. Dake, 1 Seld, 463 ; Wilson V. Martin, 1 Denio, 602. Con- tra, Browne on Statute of Frauds, § 272. * Brown u. Kayser, 60 Wis. 1. » Whiting V. Ohlert, 52 Mich. 462. ^ Vincent v, Bp. of Soder & Man, 4 De Gex & Sm. 294. As to New York statute, see Gilbert u. Knox, 52 N. Y. 125 ; Hewitt's Will, 91 N. Y. 261. ' See as to this, Buckell v. Bleak- horn, 5 Hare, 131 ; Collard v. Simp- son, 16 Beav. 543 ; S. C. 4 De Gex, M. & G. 224 ; West v. Ray, 1 Kay, 385. 43 § 886.] THE LAW OF EVIDENCE. [BOOK 11. requiring the signature to be at the end of the will, a will in which the last side of the page on which it is written has the witnesses' signatures at the top instead of the end, is not duly executed.' But it is otherwise when the signature comes after the attestation clause." § 885. The statute of frauds,' which we must revert to as the basis of testamentary legislation in the United States as fn thil'?e-^ well as in England, relates exclusively, in its original spect of text, to devises disposing of freehold realty, while the ute of will act, just noticed, embraces personal estate. Another frauds. important distinction is, that two attesting witnesses are sufficient and necessary by the will act in all cases, while the statute of frauds requires the signature of at least three to all devises of freehold realty, but is silent as to other wills. By the will act, also, the testator must make or acknowledge his signature in the actual contemporaneous presence of these witnesses, though this is not necessary under the statute of frauds. Once more, by the will act, the will must be signed " at the foot or end thereof," whereas, under the statute of frauds, the signature is valid, if it appears on any part of the instrument.* § 886. Under the terms of the English Will Act it has been ruled that both the attesting witnesses must subscribe the will ^*?'*°?''^® at the same time, and in each other's presence. Hence, tions under -vyhere a will was signed in the presence of a single wit- statutes. O 1 o ness who then attested it, the second witness signing only when the testator afterwards acknowledged his signature, this was held to be insufficient, though on the second occasion the first wit- ness had acknowledged, but had not rewritten, his own signature.' • Hewitt's Will, 91 N. Y. 261 ; see, or though attesting clauses intervene, to same effect, O'Neill's Will, 91 N. See Taylor's Evidence, § 971. Y. 516 ; aliter under New Jersey law. ■• Taylor's Evidence, § 966, 7th ed. Booth, in re, 3 Demar. 416. § 1052-3 ; Casement ». Fulton, 5 Moo. 2 Younger v. Duffie, 94 N. Y. 535 ; P. C. R. 139 ; Moore !>. King, 3 Curt. Hallowell v. Hallowell, 88 Ind. 251. 243 ; In re Simmonds, Ibid. 79 ; In re 3 29 Car. 2, o. 3, § 5. Allen, 2 Curt. 331 ; Slack v. Rusteed, * Much difficulty arose under this 6 Ir. Eq. R. (N. S.) 1. See Gardiner, provision of the will act, which was in re, 3 Demar. 98. But in Faulds ohviated by an act passed in 1852, u. Jackson, 6 Ec. & Mar. Cas. Supp. i.; under the auspices of Lord St. Leon- and In re Webb, 1 Deane Eo. R. 1, ards, which provides that a signature Sir J. Dodson, on the authority of an is good which is at the end of a will, unreported decision of Sir H. Fust, in though there be an intervening space, Chodwick v. Palmer, held that the 44 CHAP. XI.] STATUTE OF FRAUDS. [§ 886. The same conclusion has been reached where one of the witnesses to a will, on the occasion of its being re-executed in his presence, retraced his signature with a dry pen,* and where another witness, under similar circumstances, corrected an error in his name as pre- viously written, and added the date.^ Some act must be done on the face of the instrument to indicate a subscription.^ So under a statute requiring two witnesses to a will, a will altered after one witness has signed is not duly proved.* As the word "presence," mentioned in the will act (as distinguished from the statute of frauds), means not only a bodily but a mental presence, the act, so has it been held, will not be satisfied if either of the witnesses be insane, intoxicated, asleep, or, it would seem, even blind or inatten- tive, at the time when the will is signed or acknowledged." Under' the New York statute, when witnesses to a will saw no act of sign- ing it by the testator until after they had signed their own names to it, this was held not a sufficient attestation of the will.* And where the name of the testator (it not being proved by whom written) was entered in the middle of a sentence in the will, it ap- pearing that he told the witnesses, before signing, that he had " drawed up" the paper, and he afterwards wrote his name in another form in another part of the instrument, this was held not a sufficient authentication of the previous signature.' Under the English Will Act, where the testator acknowledged a paper to be his will in the presence of witnesses, but these persons had neither witnesses need not subscribe the will duly attested. Hatton, In Goods of, 6 P. in the presence of each other. Under D. 204 ; 50 L. J. P. 78 ; 30 W. R. 62. the statute of frauds this was clearly ' Playne v. Scriven, 7 Ec. & Mar. unnecessary. Jones v. Lake, 2 Atk. Cas. 122, per Sir H. Fust ; 1 Roberts. 177. Nor is it in New York. Barry 772, S. C. See Duffie v. Corridon, 40 V. Brown, 2 Demarest, 309 ; Bogart, in Ga. 122. re, 67 How. Pr. 313. See, also, John- 2 Hindmarsh v. Charlton, 8 H. of L. son V. Johnson, 106 Ind. 475. Cas. 160. See, as to practice at common law, ' Guyou, in re, L. R. 3 P. & D..92. supra, § 739. * Charles u. Huber, 78 Penn. St, A will which was written twice on 448. different pieces of paper, but the two ^ Hudson v. Parker, 1 Roberts. 24, documents were differently worded per Dr. Lushingtou. though to the same effect, while by ^ Sisters of Charity of St. Vincent mistake one of them was signed by the de Paul v. Kelly. Opinion by P'olger, testator, and the other by the two at- J., 67 N. Y. 409. testing witnesses : was held not to be ' Ibid. 45 § 887.] THE LAW OF EVIDENCE. [BOOK II. seen him sign it, nor seen his signature at the time of their sub- scription, a prayer for probate was rejected, though both the wit- nesses admitted that they had seen the testator writing the "paper, and the will, when produced, actually bore his signature.' So far as concerns the signatures of the witnesses, it has been held that if their signatures were not attached in the testator's room, proof would be required to show that he was in such a position as to have seen them write.* On the other hand, where the testator, being in bed, did not exactly see one of the witnesses sign, in consequence of a curtain being drawn, but both the witnesses had really signed in his room, and in each other's presence, the will was admitted to probate,' and this is also the case when the testator is prevented by failure of eye-sight from seeing the witnesses, but is conscious of their presence.* The witnesses, so has this distinction been ex- plained, are to see the signature made or acknowledged, because they are subsequently to attest it ; but they are to subscribe the will in the presence of the testator, chiefly for the purpose of formally completing it ; and although they cannot depose to the signature of the testator being made or acknowledged in their pres- ence, unless they see the act, they may bear witness to their sub- scription in the presence of the testator, though he did not actually see them sign.* § 887. Under the statute of frauds (in its original terms), it is not necessary for the witness to have seen the testator ackDow- sign, if he acknowledges his signature, directly or in- teetotor!'^ ferentially, in their presence, and declares that the instrument is his will.* The testator, as we have seen, 1 Hudson V. Parker, 1 Roberts. 14, a Newton . Leftwich, 3 Rand. 255 ; Wright v. Puckett, 22 Grat. 374 ; Printup V. Mitchell, 17 Ga. 558 ; Ford u. Finney, 35 Ga. 358 ; Rawson v. Bell, 46 Ga. 19 ; Rosser v. Harris, 48 Ga. 512 ; Wimberly v. Bryan, 55 Ga. 198; Thayer v. Luce, 22 Ohio St. 62 ; Wheeler v. Frankenthal, 78 111. 124 (in equity) ; Warren v. Warren, 105 111. 568 ; Railsbaok v. Walke, 81 Ind. 409 ; Thayer v. Reeder, 45 Iowa, 272 ; Parke v. Leewright, 20 Mo. 85 ; Tatum V. Brooker, 51 Mo. 148 ; Bard v. Elston, 31 Kan. 274 ; Ottenhouse v. Burleson, 11 Tex. 87; Arguello u. Edinger, 10 Cal. 150 ; Hoffman v. Felt, 39 Cal. 109 ; Reedy v. Smith, 42 Cal. 245 ; Pledgers. Garrison, 42 Ark. 246 ; Deisher v. Stein, ■34 Kan. 39. See Lydick v. Holland, 33 Mo. 703 2 Jacobs V. R. R., 8 Cush. 224; Parker v. Parker, 1 Gray, 409 ; Adams v. Townsend, 1 Mete. 485 ; Burns v. Dag- gett, 141 Mass. 368. See as to Maine, Stearns v. Hubbard, 8 Greenl. 320. 3 Albea v. Griffin, 2 Dev. & Bat. Eq. 9 ; Dunn v. Moore, 3 Ired. Eq. 369 ; East V. Dolihite, 72 N. C. 566. * Beaman v. Buck, 9 Sm. & M..210 ; Catlett V. Bacon, 33 Miss. 282 ; MoGuire V. Stevens, 42 Miss. 730; Fisher u. Kuhn, 54 Miss. 485. " Ridley v. McNalry, 2 Humph. 174 ; Bloomsteen v. Clees, 3 Tenn. Ch. 439 ; Hays V. Worsham, 9 Lea, 892. 6 Grant ^. Craigmiles, 1 Bibb. 209 ; Kay V. Curd, 6 B. Mon. 102. ' Grafton v. Fletcher, 3 Martin La. 488. 8 Pike V. Pettus, 71 Ala. 98. Before the recent judicature stat- utes, the only relaxations of the stat- ute which English judges at common law would allow were, first, if a parol 67 § 909.] THE LAW OF EVIDENCE. [book II. claimed to be part performance must refer to and result from the agreement, and the performance must also be of such a character that execution on the other side would be the only mode by which the complainant could be put right. ^ Going into possession of land under a parol contract, and making bond fide permanent improve- . ments, have been held to be part performance in this sense.' Even possession taken, as an incident of a hond fide removal, so as to commit the party to the new residence, has, when in direct perform- agreement respecting lands had been entirely executed by both parties, the contract could not afterwards be called in question, should it he necessary to refer to it for any collateral purpose, Griffith V. Young, 12 East, 513 ; Sea- man V. Price, 2 Bing. 437 ; 10 Moore, 38, S. C; Green v. Saddington, 7 E. & B. 603. See Hodgson v. Johnson, E. B. & E. 685, 689, per Ld. Campbell ; and, next, if it had been executed by one party, and the transaction were of such a nature as to admit of an action for use and occupation, or in indebi- tatus assumpsit, the other party, it was intimated, would not be permitted to defeat his action by setting up the statute. See Laveryu. Turley, 6 H. & N. 239 ; Savage v. Canning, 1 I. R. C. L. 434, per C. P.; Ld. Bolton v. Tomlin, 5' A. & E. 856 ; 1 N. & P. 247, S. C.j Cocking v. Ward, 1 C. B. 858 ; Kelly V. Webster, 12 C. B. 283. This, under the old practice, was the limit to which the courts of common law could go. Under the new English practice, enabling equitable defences to be pleaded in common law courts, we have as yet no adjudications. But in the United States there are few jurisdictions in which the more liberal practice is not adopted by the common law courts. See fully infra, §§ 1019 et seq. 1 See 1 Sugd. V. & P. 8th Am. ed. 226 ; Reed, Stat. Frauds, §§ 542 et seq.; Lacou V. Mertins, 3 Atk. 3 ; Phillips v. 68 ■ Thompson, 1 Johns. Ch. 131 ; Lester v. Kinne, 37 Conn. 9 ; Cole o. Potts, 2 Stockt. N. J. 67 ; Robertson v. Robert- son, 9 Watts, 32 ; Frye u. Shepler, 7 Barr, 91 ; Shellhammer v. Asbaugh, 83 Penn. St. 24 ; Hart v. Carroll, 85 Penn. St. 508 ; Wright i;. Puckett, 22 Grat. 374; Worth v. Worth, 84 111. 462; Langston v. Bates, 84 111. 524; Colgrave (/. Solomon, 34 Mich. 494; Long V. Duncan, 10 Kans. 294. 2 Savage v. Carroll, 1 Ball & B. 119 ; Sutherland v. Briggs, 1 Hare Ch. 27 ; Dowell u. Dew, 1 Yo. & Col. 345 ; Wilton V. Harwood, 23 Me. 133 ; Miller «. Tobie, 41 N. H. 84 ; Davenport v. Mason, 15 Mass. 92 ; Peckham ■/. Barker, 8 Rh. I. 17 ; Adams v. Rook- well, 16 Wend. 285 ; Freeman v. Free- man, 43 N. Y. 34 ; Richmond v. Foote, 3 Lans. 244; Lobdell u. Lobdell, 36 N. Y. 327 ; Casler v. Thompson, 3 Green Ch. 59 ; Waok c Sorber, 2 Whart. 387 ; Gangwer v. Fry, 17 Penn. St. 491 ; Van Loon v. Daven- port, 1 Weekly Notes, 320; Perkins v. Hadsell, 50 111. 216 ; Laird v. Allen, 82 111. 43 ; Whetsell v. Church, 110 III. 125; Smith v. Yocum, 110 111. 142; Coe V. Johnson, 93 Ind. 418 ; Savage v. Lee, 101 Ind. 514 (but see Alcorn v. Harmonson, 2 Blackf. 235) ; Smith v. Smith, 1 Rich. Eq. 130 ; Cummings v. Gill, 6 Ala. 562 ; Byrd v. Odem, 9 Ala. 755 ; Ridley v. MoNairy, 2 Humph. 174. CHAP. XI.] STATUTE OF FRAUDS. [§ 909. ance of the contract, been deemed enough.' Such possession, it should be remembered, must be actual, not merely technical and constructive ;^ must be exclusive f must be subsequent to the agree- ment ;* must be with the vendor's knowledge and consent, and not surreptitious or adverse ;® must be permanent," and must be of a character the loss of which could not be compensated for in dam- ages.' And " the evidence must define the boundaries and indicate the quantity of the land.'" • Butcher v. Staply, 1 Vern. 363 ; Lacon v. Mertins, 3 Atk. 3 ; Eaton v. Whitaker, 18 Conn. 229 ; Smitli v. Dn- derdunck, 1 Sandf. Ch. 679 ; Harris v. Knickerbocker, 5 Wend. 638 ; Brown V. Jones, 46 Barb. 400 ; Morrill v. Cooper, 65 Barb. 512 ; Pugli v. Good, 3 Watts & S. 56 ; Moale v. Buchanan, 11 Gill & J. 314 ; Harris v. Crenshaw, 3 Rand. 14 ; Anderson o. Chick, 1 Bailey Ch. 118 ; Palmer v. Richardson, 3 Strobh. E(i. 16; Brook v. Cook, 3 Porter, 464. 2 Brawdy v. Brawdy, 7 Barr, 157 Moore v. Small, 19 Penn. St. 461 Bush V. Oil Co., 1 Weekly Notes, 297 Com. V. Kreager, 78 Penn. St. 477 Hudnut r. Weir, 100 Ind. 501. 3 Frye v. Shepler, 7 Barr, 91 ; Haines V. MoGlone, 44 Ark. 79. See Marsh v. Davis, 33 Kan. 326. * Gregory v. Mighell, 18 Ves. 328 ; Eckert v. Eckert, 3 Penn. R. 332; Atkins V. Young, 12 Penn. St. 24; Blakeslee v. Blakeslee, 22 Penn. St. 237 ; Christy v. Barnhart, 14 Penn. St. 260 ; Reynolds v. Hewett, 27 Penn. St. 176 ; Myers v. Byerly, 45 Penn. St. 368 ; Haines v. Haines, 6 Md. 435 ; Mahana v. Blunt, 20 Iowa, 142 ; An- derson V. Simpson, 21 Iowa, 399. » Gregory v. Mighell, 18 Ves. 328 ; Puroell V. Miner, 4 Wall. 513 ; Goucher V. Martin, 9 Watts, 106 ; Gratz v. Gratz, 4 Rawle, 411 ; Johnston v. Glanoy, 4 Blackf. 94; Thomson v. Scott, 1 McCord Ch. 32. 8 Rankin v. Simpson, 19 Penn. St. 471 ; Dougan v. Bloucher, 24 Penn. St. 28. ' "The rule is well settled, that to take a parol contract for the sale of land out of the operation of the statute of frauds and perjuries, the contract must be distinctly proved ; the land must be clearly designated, and open, notorious, and exclusive possession must be taken and maintained under and in pursuance of the contract. Moore v. Small, 7 Harr. 469 ; Frye v. Shepler, 7 Barr, 91 ; Hill v. Meyers, 7 Wright, 172. . Every parol contract is within the statute of frauds, except where there has been such part per- formance as cannot be compensated in damages. Moore v. Small, 7 Harris, 469. If the circumstances of the case are not such as to render reasonable compensation for what has been paid or done impossible, then compensation, instead of execution of the contract, is the duty which the law will enforce. Postlethwait v. Frease, 7 Casey, 472. A court of equity enforces such a con- tract only where it has been so far executed that it would be unjust to rescind it. No matter how clear the proof of such contract may be, specific * Woodward, J., Hart v. Carroll, 85 Penn. St. 510. See Reed, Stat. Frauds, §§ 590 et seg. § 910.] THE LAW OP EVIDENCE. [book II. § 910. Mere payment of purchase-money, however, is not suffi- cient part performance to compel the execution of such a parol contract ;* unless the condition of the vendee is such that he could not be restored to his former situation by resort to a suit for repayment ;'' in which case pay- ment may be a fact, from which, with other facts, part performance can be inferred.' Nor, as we have seen,^ is marriage considered to be such part performance of a parol marriage settle- But pay- ment of purchase- money is not enough. performance thereof will not be de- creed where adequate compensation may be made in damages. McKowen V. McDonald, 7 Wright, 441. These principles are too familiar to need illus- tration. " Whether the evidence is sufScient to take such a contract out of the operation of the statute is a question of law for the court. Irwin v. Irwin, 10 C. 525." Woodward, J., Overmyer V. Koerner, 2 Weekly Notes, 6. The sufficiency of possession taken of land under a contract, to be of itself such part performance as to take the contract out of the statute of frauds, has been frequently asserted in Pennsylvania. See Aokerman v, Fisher, 57 Penn. St. 457, and other oases cited supra. See, also, as some- what tempering the positiveness of this doctrine. Parley v. Stokes, 1 Pars. Eq. Cases, 422 ; Bassler v. Niesly, 2 S. & R. 352; Workman v. Guthrie, 29 Penn. St. 495 ; Van Loon u. Daven- port, 2 Weekly Notes, 320. ' Reed, Stat. Frauds, §§ 692, 594 Buckmaster v. Harrop, 7 Ves. 341 Cliuan v. Cooke, 1 Sch. & L. 40 Hughes V. Morris, 2 De G., M. & G 356 ; Purcell v. Miner, 4 Wall. 613 Kidder v. Barr, 39 N. H. 236 ; Glass v. Hulbert, 102 Mass. 21 ; Cogger v. Lan- sing, 43 N. Y. 550; Eaton v. Whit- aker, 18 Conn. 222; Cole „. Potts, 2 Slockt. 67; MoKee i>. Phillips, 9 Watts, 86 ; Parker u. Wells, 6 Whart. 153 ; 70 Allen's Est. 1 Watts & S. 283 ; Gang- wer V. Fry, 17 Penn. St. 491 ; Town- send u. Houston, 1 Har. (Del.) 532; Letcher v. Crosby, 2 A. K. Marsh. 106 ; Lefferson v. Dallas, 20 Ohio St. 74; Crabill v. Marsh, 38 Ohio St. 331; Felton u. Smith, 84 Ind. 485 ; Town- send V. Fenton, 32 Minn. 482 ; Parke V. Leewright, 20 Mo. 85 ; Baker v. Wiswell, 17 Neb. 62 ; Mather v. Scoles, 35 Ind. 5 ; Mialhi v. Lassabe, 4 Ala. 712; Hunt v. MoGlellan, 41 Ala. 451; Church u. Farrow, 7 Rich. Eq. 378; Hyde v. Cooper, 13 So. Car. Eq. 250 ; Mims V. Chandler, 21 S. C. 480 ; Wood V. Jones, 35 Tex. 64. See, aliter, Fair- brother V. Shaw, 4 Iowa, 570 ; Narr v. Jackson, 68 Iowa, 369 ; Johnston v. Glancy, 4 Blaokf. 94. That mere payment of rent does not take a parol lease out of the statute, see Reed v. Blodgett, 59 N. H. 120. ° Bispham's Eq. § 385 ; Reed, Stat. Frauds, §§ 692 et seq. ; Rhodes .;. Rhodes, 3 Sandf. Ch. 279; Malins w. Brown, 4 Comst. 403 ; Johnson v. Hub- bell, 2 Stockt. 332 ; Dugan v. Gittings, 3 Gill, 138 ; Everts v. Agnes, 4 Wis. 343 ; Morrill v. Cooper, 65 Barb. 512. See Lacou v. Mertins, 3 Atk. 4 ; Hales 0. Bercham, 3 Vern. 618; Main v. Melborn, 4 Ves. 724 ; Jones u. Peter- man, 3 S. & R. 643 ; Frieze v. Glenn, 2 Md. Ch. 361. » Reed, Stat. Frauds, § 590. ' Supra, § 882. CHAP. XI.] STATUTE OF FRAUDS. [§ 912. ment as will make such settlement operative*.^ It is also to be re- membered that the exception of part performance, as a ground for taking a parol contract out of the statute, is cognizable in equity- only on ground of the fraud that would be perpetrated if specific redress were not given ; the wrong not being cognizable at common law, though cognizable in those systems of jurisprudence which per- mit equitable remedies to be administered under common law form.^ & 911. Parol evidence is also admissible to prove that , . , , . "Where the party aggrieved was ready to execute a written written instrument in conformity with the statute, but was pre- conformity vented by the fraud of the other party ; and in such ■^'* ^^^^' •' r J ' ute IS pre-" case, a parol contract, the formal execution of which vented by was thus prevented, will be enforced.* equity win § 912. Where a parol contract, in a suit for its specific ^^ '®^®' performance, is admitted by the defendant, and the de- tV "h PTl fence of the statute is waived by him, the parol contract parol is held to be taken out of the statute, and may be en- a^^j^teVi forced by a chancellor, or a court administering equity answer, remedies.^ The same effect has been assigned to a pro equitably confesso decree." But against strangers and creditors ™ "reed, coming in to resist a decree for specific execution, even such an 1 Montaoute o. Maxwell, 1 P. Wms. 618 ; Dundas u. Dutens, 1 Ves. Jun. 196 ; 2 Cox, 235 ; Caton v. Caton, L. R. 1 Ch. App. 147 ; Hammersly v. De Biel, 12 CI. & P. 65 ; Pinch v. Finch, 10 Ohio St. 501 ; Hatcher v. Robertson, 4 Strobh. Eq. 179. 2 Reed, Stat. Frauds, § 548 ; O'Her- lihy V. Hedges, 1 Sch. & L. 123 ; Kelley U.Webster, 12 C. B. 383 ; Lanew. Shack- ford, 5 N. H. 132 ; Pike u. Morey, 32 Vt. 37 ; Norton u. Preston, 15 Me. 16 ; Adams v. Townsend, 1 Met. (Mass.) 485; Eaton «. Whitaker, 18 Conn. 231 ; Jackson v. Pierce, 2 Johns. R. 223; Abbott v. Draper, 4 Denio, 52; Wentworth v. Buliler, 3 E. D. Smith, 305 ; Walter v. Walter, 1 Whart. 292 ; Henderson v. Hays, 2 Watts & S. 148 ; Hunt V. Coe, 15 Iowa, 197 ; Johnson v. Hanson, 6 Ala. 351 ; Davis v. Moore, 9 Rich. S. C. 215. s See Story's Eq. Juris. § 768 ; Bisp- ham's Eq. § 386 ; Montacute i^. Max- well, 1 P. Wms. 618. ^ Smith's Manuel of Eq. 252 ; Browne, Stat. Frauds, § 476 ; Gunter u. Halsey, Ambl, 586; Whitechurch v. Bevis, 2 Browne Ch. 566; Atty.-Gen. i7. Sitwell, 1 Yo. & Col. 583 ; Harris v. Knicker- bocker, 5 Wend. 638 ; Artz v. Grove, 21 Md. 456 ; Argenbright v. Campbell, 3 Hen. & Muu. 144 ; Ellis u. Ellis, 1 Dev. Eq. 341 ; HoUingshead v. Mc- Kenzie, 8 Ga. 467 ; McGowen v. West, 7 Mo. 569. See Reed, Stat. Frauds, 5§ 561, 579, 632. 5 Newton v. Swazey, 8 N. H. 9 ; Whiting 0-. Goult, 2 Wis. 552 ; Esmay V. Groton, 18 111. 483. Reed, Stat. Frauds, §§ 521 et seq. 71 § 913.] THE LAW OF EVIDENCE. [BOOK II. admission and refusal to set up the statutes cannot take a parol agreement out of the statute.* Whether the title to lands can be transferred by estoppel under the statute is hereafter discussed.' IX. CONFLICT OF LAWS. § 913. As is shown in another work,* when the lex fori per- j. f --^ emptorily prescribes that suits of a particular class are such cases, not to be sustained unless evidence of a particular kind be emptory, produced, this binds the judex fori, no matter what may prevai s. have been the laws of the place where the cause of action originated, or the law of the place where it took effect. When, however, there is no such peremptory provision, then the following distinctions are to be kept in mind : (1) A contract made by parties domiciled in a particular state, in which state such contract is to be performed, will be regarded by foreign courts as subject to the, law of such state. (2) The mere fact that a contract is entered into in a particular state does not by itself subject such contract to the law of such state. (3) Nor does the mere fact that a contract conflicts with the statute of frauds in the state of performance by itself vacate the contract in the state where the parties were domiciled.* (4) When the statute relates to the transfer of property having a permanent local site, the lex situs prevails." » Winn V. Albert, 2 Md. Ch. 169 ; « See Whart. Conf. of Laws, §§ 691 Albert v. Winn, 2 Md. 66. et seq., where the above distinctions 2 Infra, § 1148. are sustained ; Reed, Stat. Frauds, §§ ' Whart. Conf. of Laws,. 2d ed., § 690. 16 et seq. See also supra, § 316, as to foreign = Ibid, rules of evidence. 72 CHAPTER XII. DOCUMENTS MODIFIED BY PAROL. I. Generai, Rules. Parol evidence not admiesible to vary documents as between par- ties, § 920. New ingredients cannot- be thus added, § 931. Auctioneers' memoranda, § 933. Dispositiye documents may be varied by parol as to strangers, §923. Whole document must be taken together, § 924. Distinction between "primary" and " technical" untenable, §924. Written entries are of more weight than printed, § 925. Informal memoranda are excepted from rule, telegrams, § 926. Parol evidence admissible to show that document was not executed, or was only conditional, or was rescinded, § 927. And so to show that it was con- ditioned on a non-performed con- tingency, § 928. But plain conditions cannot be va- ried except on proof of fraudu- lent imposition, § 929. Want of due delivery, or' delivery as an escrow, may be proved by parol, § 930. Fraud or duress in execution may be shown by parol, and so of in- sanity, § 931. ' And so of trust, § 931 a. But complainant must have a strong case, § 933. So as to concurrent mistake, § 933. But not mistake of one party, § 934. So of illegality, § 935. Between parties, intent cannot be proved to affect written mean- ing, § 936. Otherwise as to ambiguous terms, § 937. Declarations of intent need not have been contemporaneous, § 938. Evidence admissible to bring out true meaning, § 939. For this purpose extrinsic circum- stances may be shown, § 940. Acts admissible for the same pur- pose, § 941. Ambiguous descriptions of prop- erty may be explained, § 942. General designation of property may be thus particularized, §943. Parol evidence admissible to dis- tinguish objects, § .944. Erroneous particulars may be re- jected as surplusage, § 945. Ambiguity as to objects may be so explained, § 946. Ambiguous measurements and numbers may be thus explained, §947. Parol evidence admissible to prove " dollar" means Confederate dollar, § 948. Parol evidence admissible to iden- tify parties, § 949. Variation of names by parol, § 949 a. To enable undisclosed principal to sue or be sued, he may be proved by parol, § 950. But person signing as principal cannot set up that he was agent, §951. 73 THE LAW OF EVIDENCE. [book II, Suretyship on writing may be shown by parol, § 952. Other cases of distinction and iden- tification, § 953. Evidence of writer's use of lan- guage admissible to solve am- biguities, § 954. Party may be examined as to intent or understanding, § 955. Patent ambiguities cannot be ex- plained by parol, § 956. "Patent" is "subjective," and " latent" " objective," § 957. Usage cannot be proved to vary dispositive writings, § 958. Parties may override usage by con- sent, § 9.59. Proof of submission to a conflicting usage is inadmissible, § 960. Otherwise in case of ambiguities, § 961. Usage is to be brought home to the party to whom it is imputed, § 962. When usage is that of a class, party must be proved to belong to the class, § 963. Usage may be proved by one wit^ ness, § 964. Usage is to be proved to the jury, and must be reasonable and not conflicting with lex fori, § 965. When no proof exists of usage, meaning is for court, § 966. Power of agent may be construed by usage, § 967. Usage received to explain broker's memoranda, § 968. Customary incidents may be an- nexed to contract, § 969. But not when conflicting with writ- ing, § 970. Course of business admissible in ambiguous cases, § 971. Opinion of expert inadmissible as to construction of document ; but otherwise to decipher and inter- pret, § 972. Parol evidence admissible to rebut an equity, § 973. And so to rebut a rebuttable pre- sumption, § 974. 74 Opinion of witnesses as to libel admissible, § 975. Dates not necessarily part of docu- ment, § 976. Dates presumed to be true, but may be varied by parol, § 977. Exception to this rule, § 978. Time may be inferred from circum- stances, § 979. II. Special Kules as to Records, Statutes, and Chaktebs. Records cannot be varied by parol, § 980. And so of statutes and charters, § 980 a. Otherwise as to acknowledgment bf sheriflFs' deeds, § 981. Record imports verity, § 983. But on application to court, rec- ord may be corrected by parol, § 983. For relief, petition should be ape- cific, § 984. Fraudulent record may be collat- erally impeached, § 985. When silent or ambignous, record may be explained by parol, § 986. Town and similar records subject to same rules, § 987. Former judgment may be shown to relate to a particular case, § 988. Nature of cause of action may be proved, § 989. So of hour of legal procedure, § 990. So of collateral incidents of rec- ords, § 991. III. Special Rules as to Wills. Wills cannot be varied by parol. Intent must be drawn from writ- ing, § 992. Proof of iutent inadmissible to ex- plain patent ambiguities, § 993. Evidence inadmissible to modify obvious meaning as to devisee, § 994. And so are declarations qualifying terms, § 995. When primary meaning is inappli- cable to any ascertainable object evidence of secondary meaoing is admissible, § 996. CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. When terms are applicable to sev- eral objects, evidence admissible to distinguish, § 997. In ambiguities, all the surround- ings, family, and habits of the testator may be proved, § 998. All the extrinsic facts are to be considered, § 999. When description is only partly applicable to each of several ob- jects, then declarations of intent are inadmissible, § 1001. Evidence admissible as to other ambiguities, § 1003. Abbreviations may be explained, § 1003. Testator's own writings admissible among extrinsic facts, § 1003. Erroneous surplusage may be re- jected, § 1004. Otherwise as to words of limitation or description, § 1005. Patent ambiguities cannot be re- solved by parol, § 1006. Ademption of legacy may be proved by parol, § 1007. Parol proof of mistake of testator inadmissible, § 1008. Fraud and undue Influence may be so proved, § 1009. Testator's declarations primarily inadmissible to prove fraud or compulsion, § 1010. But admissible to prove mental condition, § 1011. Parol evidence admissible to sus- tain wUl when attacked, § 1013. Probate of will only primd facie proof, § 1013. rv. Speciai, Rules as to Contkacts. Prior conference merged in written contract, § lOli. Parol may prove contract partly oral, § 1015. Oral adoption and acceptance of written contract may be so proved, § 1016. Rescission of one contract and sub- stitution of another may be so proved, § 1017. And so of facts showing that the contract never became opera- tive, or became so on condition, § 1017 a. Exception at law as to writings under seal, § 1018. Parol evidence admissible to re- form a contract, § 1019. Deeds may be so reformed, § 1030. Reformation granted in cases of concurrent mistake, § 1031. Parol evidence not admissible to contradict document, § 1033. Reformation must be specially asked, § 1033. Under statute of frauds parol con- tract cannot be substituted for written, § 1035. Subsequent extension, variation, or abrogation, provable by parol, § 1036. Parol evidence inadmissible to prove unilateral mistake of fact, § 1038. And so of mistake of law, § 1039. Obvious mistake of form may be proved by parol, § 1030. Conveyance may be shown to be in trust, § 1031. Or a mortgage, § 1033. But evidence must be plain and strong, § 1033. Admission of such evidence does not conflict with statute of frauds, § 1034. Resulting trust may be proved by parol, § 1035. Caution when alleged trustee is deceased, § 1037. Person fraudulently obtaining or retaining title may be treated as trustee, § 1038. Particular recitals may estop, § 1039. Otherwise as to general recitals, §1040. Recitals do not bind third parties, § 1041. Recitals of purchase-money open to dispute, § 1043. Not admissible against strangers, § 1043. 75 § 920.] THE LAW OF EVIDENCE. [book II. Consideration may be proved or disproved by parol, § 1044. Seal Imports consideration, but may be impeached on proof of fraud or mistake, § 1045. Consideration in contract cannot primd facie be disputed by those claiming under it, though other considerations may be proved in rebuttal of fraud, § 1046. When fraud is alleged, stranger may disprove consideration, § 1047. To disprove fraud bond fides is ad- missible, § 1048. Bond fide purchasers and judgment vendees may assail considera- tion, § 1049. V. Speoiai, Rules as to Deeds. Deeds not open to variation by parol proof, § 1050. Party or privy cannot contradict averments, § 1051. Acknowledgment may be disputed by parol, § 1052. Defective acknowledgrhent may be explained by parol, § 1053. Between parties, deeds may be varied on proof of ambiguity and fraud, § 1054. Deeds may be attacked by 6o«fl fide purchasers and judgment vendees, § 1055. And so as to mortgages, § 1056. Deed may be shown to be in trust, § 1057. (As to recitals, see §§ 1036- 1043.) VI. Special Rules as to Nesotiable Papeb. Negotiable paper not susceptible of parol variations, § 1058. . Blank indorsement may be ex- plained, § 1059. Relations of parties with notice may be varied by parol, § 1060. And so of relations of successive indorsers, § 1060 o. And so may consideration, § 1060 6. Real parties may be brought out by parol, § 1061. Ambiguities in such paper may be explained, § 1062. VII. Special Rules as to Other In- struments. Releases cannot be contradicted by parol, § 1063. Receipts can be so contradicted, § 1064. Exceptions as to insurance re- ceipts, § 1065. Receipts may be estoppels as to third parties, and when con- tractual may conclude the par- ties, § 1066. Bonds may be shown to be condi- tioned on contingencies, § 1067. Subscriptions cannot be modified as to third parties by parol, § 1068. Fraud may be a defence, § 1069. Bills of lading are open to explana- tion, § 1070. Insurance applications may be ex- plained by parol, 1071. §920. Parol evi- dence gen- erally not admissible to vary documents between parties. I. GENERAL RULES. Parol evidence, in obedience to a rule which has been already frequently stated, cannot be received to vary the terms of a document. It is important, however, in de- termining the force of this rule, to distinguish between documents which are uttered dispositively, i. e., for the purpose of disposing of rights ; and those uttered non- dispositively, i. e., not for the purpose of disposing of 76 CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 920. rights.* A non-dispositive, or, to adopt Mr. Bentham's term, a " casual" document, is more open to parol variation than is a docu- ment which is dispositive, or, as Mr. Bentham calls it, " predeter- mined." A casual or non-dispositive document (e. g., a letter or memorandum thrown off hurriedly in the ease and carelessness of familiar intercourse, without intending to institute a contract, and which is offered, not to prove a contract, but to establish a non-con- tractual incident)^ is peculiarly dependent upon extraneous circum- stances ; is often inexplicable unless such circumstances are put in evidence ; and employs language, which, so far from being made up of phrases selected for their conventional business and legal limita- tions, is marked by the writer's idiosyncrasies, and sometimes com- prises words peculiar to himself. But whether such documents are • informally or formally constituted, they agree in this, that so far as concerns the parties to the case in which they are offered they were not prepared for the purpose of disposing of the rights of the party from whom they emanate. Dispositive documents, on the other hand, are deliberately prepared, and are usually couched in words which are selected for the purpose, because they have a set- tled legal or business meaning. Such documents are meant to bind the party uttering them in both his statements of fact and his en- gagements of future action ; and they are usually accepted by the other contracting party (or in case of wills, by parties interested), not in any occult sense, requiring explanation or correction, but ac- cording to the legal and business meaning of the terms.' It stands to reason, therefore, that parol evidence is not as a rule to be re- ceived to vary the terms of documents so prepared and so accepted, though it is otherwise when such documents are offered, not disposi- tively, between the parties, but non-contractually, by or against strangers. So far as concerns the parties or privies to a dispositive ' See infra, §§ 10Y8, 1083. documents is recognized by Sir J. Ste- 2 See McCrea v. Piarmort, 16 Wend, plien in substance, though not in 460; Bourse v. Marshall, 23 Ind. 194; terms, when he tells ns that "oral Stone V. Wilson, 3 Brev. (S. C.) 228. evidence of a transaction is not ex- As to letters and other documents re- eluded by the fact that a documentary ceivable to prove non-contractual inoi- memorandum of it was made, if such dents, see infra, §§ 1122 et seq. memorandum was not intended to have legal ' The distinction between disposi- effect as a contract or other disposition oj tive and non-dispositive (or casual) property." Steph. Ev. art. 90. 77 § 920,] THE LAW OP EVIDENCE. [book II. document, valid in itself, its terms cannot ordinarily be varied by parol.' 1 Preston o. Merceau, 2 W. Bl. 1249 ; GosB v. Nugent, 5 B. & Ad. 64 ; Adams v. Wordley, 1 M. & W. 374 ; Hunt V. Rousmanier, 8 Wheat. 174 ; Van Ness v. Washington, 4 Pet. 232 ; Shankland v. Washington, 5 Pet. 390 ; Van Buren v. Digges, 11 How. 461 ; Partridge o. Ins. Co., 15 Wall. 593 ; Bailey v. R. R., 17 Wall. 96 ; Gavinzel V. Crump, 22 Wall. 308; Moran v. Prather, 23 Wall. 499 ; Brown v. Spof- ford, 95 U. S. 474 ; Singer Man. Co. o. Hester, 2 McCrary, 417 ; White v. Boyce, 21 Fed. Rep. 228 ; Eveleth v. Wilson, 15 Me. 109 ; Peterson v. Grover, 20 Me. 363 ; Ticonio Bk. u. Johnson, 21 Me. 426 ; Whitney v. Lowell, 83 Me. 318 ; Whitney v. Slayton, 40 Me. 224; Bell V, Woodman, 60 Me. 465 ; Morrill V. Robinson, 71 Me. 24 ; Bromley v. Elliot, 38 N. H. 287 ; Smith v. Gibbs, 48 N. H. 335 ; Bradley «. Bentley, 8 Vt. 243 ; Bond v. Clark, 35 Vt. 577 ; Brandon v, Morse, 48 Vt. 322 ; Joseph ii. Bigelow, 4 Gush. 82 ; Myrick v. Dame, 9 Gush. 248 ; Finney v. Ins. Co., 8 Met. 348; Cook v. Shearman, 103 Mass. 21 ; Golt v. Cone, 107 Mass. 285 ; McFarland v. R. R., 115 Mass. 103; Barnstable Bk. o. Ballou, 119 Mass. 487 ; Black v. Baohelder, 120 Mass. 171 ; Ward v. Gommis., 122 Mass. 394 ; Fay V. Gray, 124 Mass. 509 ; Beokley V. Munson, 13 Conn. 299 ; Glendale Woollen Go. v. Ins. Co., 21 Conn. 19 ; Drake «. Starks, 45 Conn. 96 ; La Farge v. Rickert, 5 Wend. 187 ; Spen- cer V. Tilden, 5 Cow. 144; Hull v. Adams, 1 Hill, N. Y. 601 ; Baker u. Higgins, 21 N. Y. 397 ; Clark ,,. Ins. Co., 7 Laus. 323 ; Long i>. R. R., 50 N. y. 76; Collender v. Dinsmore, 55 N. Y. 200 ; Mott v. Richtmyer, 57 N. Y. 49 ; Van Bokkelen v. Taylor, 62 N. Y. 105 ; Van Syokll v. Dalrymple, 32 N. 78 J. Eq. 826 ; Perrine u. Gheeseman, U N. J. L. 174; Rogers v. Colt, 21 N. J. L. 704 ; Carlton v. Wine Co., 33 N. J. Eq. 466 ; Heilner v. Imbrie, 6 Serg. & R. 401 ; Albert v. Ziegler, 29 Penn. St. 50 ; Collins v. Baumgardner, 62 Penn. St. 461 ; Kirk v. Hartman, 63 Penn. St. 97 ; Martin v. Berens, 67 Penn. St. 459 ; Hagey v. Hill, 75 Penn. St. 108 ; Penns. Canal Co. v. Belts, 1 Weekly Notes, 368 ; Weiler v. Hotten- stein, 102 Penn. St. 499 ; Woodruff b. Frost, 2 N. J. L. 342 ; Young «. Frost, 5 Gill, 287 ; Batturs «. Sellers, 6 Har. & J. 249 ; Criss !'.■ Withers, 26 Md. 553; Hays V. Ins. Co., 36 Md. 398 ; Farrow V. Hays, 51 Md. 498 ; Bait. Build. See. V. Smith, 54 Md. 187 ; Hunting v. Emmart, 55 Md. 265 ; Hill v. Peyton, 21 Grat. 386 ; McLean v. Ins. Co., 29 Grat. 361 ; Little Kanawha o. Rice, 9 W. Va. 190 ; Serviss v. Stockstill, 30 Ohio St. 418 ; Irwin u. Ivers, 7 Ind, 308; Davis v. R. R., 84 Ind. 36; Schreiber v. Butler, 84 Ind. 576; Treatman v. Fletcher, 100 Ind. 105; Frazer v. Frazer, 42 Mich. 276 ; Seek- ler V. Fox, 51 Mich. 92 ; McClure v. Jeff'rey, 8 Ind. 79 ; Fankboner v. Fank- boner, 20 Ind. 62 ; Abrams v. Pomeroy, 13 111. 133; Harlow v. Boswell, 15 111. 56 ; Robinson v. Magarity, 28 111. 423 ; Winnesheik Ins. Co. v. Holzgrafe, 63 111. 516; Johnson v. Pollock, 58 111. 181 ; McCormick v. Huse, 66 111. 616 ; Mann v. Smyser, 76 111. 365 ; Cease o. Cockle, 75 111. 484 ; Conwell v. R. R., 81 III. 232 ; Warren v. Grew, 22 Iowa, 315 ; Atkinson v. Blair, 38 Iowa, 266 ; Mann v. School Dist., 52 Iowa, 130; Kimball u. Bryan, 56 Iowa, 432; Van Vechten v. Smith, 69 Iowa, 173 ; Thompson v. Stewart, 60 Iowa, 223; Dickson V. Harris, 60 Iowa, 727 ; Irish V. Dean, 39 Wis. 562 ; Schultz «. Coon, CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 921. § 921. In respect to documents prepared by parties for the pur- pose of expressing in writing terms on which they' have reciprocally agreed, the rule which has been stated has grg^jentg an additional sanction. Hence comes the conclusion cannot be added, that new ingredients cannot be by parol added to such documents.^ Thus, articles of property cannot be added by parol to those specified in a bill of sale^ or in a deed.' So, as an addi- tional consideration to a written contract for the grant of a right of way to a railroad company, it cannot be proved by parol that the company agreed to fill up a sluice upon the land.^ In a suit, also, on a written agreement for the sale of "25,000 pale brick for three dollars per w, and 50,000 hard brick for four dollars per 51 wis. 416 ; Winona v. Thompson, 24 Minn. 199 ; Gillespie o. Sawyer, 15 Nel). 536 ; Lennard v. Vischer, 2 Oal. 37 ; Ruiz v. Norton, 4 Cal. 359 ; Le- master v. Burckhart, 2 Bibb. 25 ; Ward V. Ledbetter, 1 Dev. & B. Eq. 496; Chamness Atty.-Gen. v. Grote, 2 Russ. & Myl. 699, per Lord Eldon ; Wigr. Wills, 201, S. C. ; Boys v. Williams, 2 Russ. & Myl. 689, per Ld. Brougham ; Horwood V. Griffith, 23 L. J. Ch. 465 ; 4 De Gex, M. & G. 709, S. C. ; Taylor, § 1083. CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 938. Where, also, the defendant agreed to pay " $1700 lawful money of the United States, and $500 in an order on W. and T." it was held that it was admissible to prove that the order for $500 was for sashes, blinds, etc., in which W. and T. dealt.* As we shall here- after see,* the rule before us is eminently applicable where signs or terms of art are employed.' " Where characters, marks, or techni- cal terms are used in a particular business, unintelligible to persons unacquainted with such business, and occur in a written instrument, their meaning may be explained by parol evidence, if the explana- tion is consistent with the terms of the contract."^ At the same time, tlie court, in determining the meaning of a word that has both a primary and obvious, and a secondary and remote, signification, will not admit technical evidence from experts as to the secon- dary meaning of the word unless satisfied that it is to be construed in its secondary sense.* § 938. When declarations of intention are admissible, under the restrictions above stated, it is not necessary that they Declara- should be contemporaneous.' It is elsewhere shown that tions of in- declarations of a deceased predecessor in title are admis- need ^o% t,e sible to afieet his successors,^ and that declarations of contempo- ... . raneous. deceased relatives are admissible in questions of pedi- gree.' But independent of these limitations, it is the better opinion that the declarations of a deceased person, subsequently to the execution of a document, signed by him, are admissible, in aid of construction, in all cases in which contemporaneous declarations would be received f and so, also, has it been held as to previous 1 Hinnemann v. Eosenback, 39 N. ers' Bk. v. Day, 13 Vt. 36 ; Stone v. Y. 98. Hubbard, 7 Cush. 595 ; Keller v. Webb, 2 Infra, § 972. 125 Mass. 88 ; Colwell v. Lawrence, 38 ' Infra, §§ 938, 953, 961, 972. Barb. 643; Hite v. State, 9 Yerg. 357. • Allen, J., Collender v. Dinsmore, Infra, § 972. 55 N. Y. 206 ; citing Dana u. Fiedler, « Holt v. CoUyer, 16 Ch. D. 718 ; 44 2 Ker. 40 ; Barnard v. Kellogg, 10 L. T. 214. Wallace, 383 ; Eobinson t>. U. S., 13 « Though see Thomas v. Thomas, 6 Ibid. 363; Wails o. Bailey, 49 N. Y. T. R. 671. 464; Attorney-Greneral a. Shore, 11 ' Infra, § 1156. Simons, 616. See, to same effect, s Supra, § 201. Sweet V. Lee, 3 Man. & Gr. 452 ; Web- » Doe u. Allen, 12 A. & E. 455. ster V. Hodgkins, 5 Fost. 128 ; Farm- voL. II.— 7 97 § 939.] TUB LAW OF EVIDENCE. [book II. declarations.' But such declarations must relate to the specific writing in dispute.* § 939. To explain the meaning of a writing in the true sense, and with this limit, is simply to develop the real mean- ing of the document.' In ordinary cases, this office is performed by the attaching to words their proper mean- ing.' Hence punctuation may be supplied by aid of parol evidence as to intent ;° words that are blurred or defaced may be deciphered by aid of the same evidence f foreign words may be translated by interpreters,' abbreviations expanded by persons familiar with the objects described,* and terms of art defined by experts.' It is in accordance with the same principle that ambiguities, in reference either to the persons affected by the document or to the thing passed by it, may be explained by parol evidence." Evidence admissible to bring out true meaning of writings. 1 Doe V. Hisoocks, 5 M. & W. 369. 2 Whitaker v. Tatham, 7 Bing. 628. Infra, § 1079. ' See distinctions taken in Whart. on Contracts, §§ 634 et seq. * See supra, § 937. » Gauutlett v. Carter, 17 Beav. 586. See Doe v. Martin, 4 T. R. 65 ; Graham u. Hamilton, 5 Ired. L. 428. Infra, § 972. ^ Fenderson v. Owen, 64 Me. 372. Infra, § 972. ' Supra, §§ 174, 407, 493. 8 Whart. Crim. Law, § 405 ; Hite v. State, 9 Yerg. 357. Infra, § 972. 9 See supra, § 435 ; infra, § 972 ; Pollen V. Le Roy, 30 N. Y. 549. >» Bank of U. S. v. Dunn, 6 Pet. 61 ; Peisoh V. Dickson, 1 Mason, 9 ; Heck- scher v. Binney, 3 Wood. & M. 333 ; Brook V. Brock, 98 U. S. 504 ; Fenton V. U. S., 17 Ct. of CI. 138; Haven v. Brown, 7 Greenl. 421 ; Patrick v. Grant, 14 Me. 233 ; Gallagher v. Black, 44 Me. 99; George u. Joy, 19 N. H. 544 ; Hall v. Davis, 36 N. H. 569 ; Holmes v. Crossett, 33 Vt. 116 ; Sutton V. Bowker, 5 Gray, 416 ; Chester Em- my Co. c/. Lucas, 112 Mass. 424 ; Willis 98 V. Hulbert, 117 Mass. 151 ; Hotchkiss V. Barnes, 34 Conn. 27 ; Ely v. Adams, 19 Johns. R. 313 ; Galen v. Brown, 22 N. Y. 37 ; Von Keller v. Sohulting, 60 N. Y. 108 ; Block v. Ins. Co., 42 N. Y. 893 ; Clinton v. Ins. Co., 45 N. Y. 454; Dent V. Steamship Co., 49 N. Y. 390 ; Oliver v. Phelps, 20 N. J. L. 180 ; Suffern V. Butler, 21 N. J. E. 410; Com. s. Blaine, 4 Binn. 186 ; Russel v. Werntz, 24 Penn. St. 337 ; Chalfantt). Williams, 35 Penn. St. 212 ; Quigley v. De Haas, 98 Penn. St. 292 ; Crawford v. Morris, 5 Grat. 90; Masters v. Freeman, 17 Ohio St. 323 ; Barrett v. Stow, 15 III. 423; Clark u. Powers, 45 111. 283; Weber v. Anderson, 73 111. 439 ; Faoey V. Otis, 11 Mich. 213 ; Ins. Co. v. Sharp, 22 Mich. 146 ; Corbett v. Berryhill, 29 Iowa, 157 ; Scott v. Blaze, 29 Iowa, 168 ; Greene v. Day, 34 Iowa, 328 ; Crawford i^. Jarrett, 2 Leigh, 630 ; Wilson V. Robertson, 7 J. J. Marsh. 78 ; Terrell v. Walker, 66 N. C. 244; Milling u. Crankfield, 1 MoCord, 268 ; Bowen v. Slaughter, 24 Ga. 338 ; Craw- ford V. Brady, 35 Ga. 184 ; Paysantii. Ware, 1 Ala. 160 ; Morrison v. Taylor, 21 Ala. 779; Gunn ^. Clendenin, 68 CHAP. XII. j DOCUMENTS MODIFIED BY PAROL. [§ 940. § 940. Extrinsic circumstances, also, in cases of ambiguity, are of value in elucidating the true meaning.^ The Court Extrinsic and jury, in interpreting what the writer meant, must evidence to put themselves, as far as evidence can enable them to do construe- so, in his position.^ Thus in a case already cited, where *'°°' Ala. 294 ; Shuetze v. Bailey, 40 Mo. 69 ; Kimball v. Brawner, 47 Mo. 398 ; St. Louis Gas Light Co. v. St. Louis, 46 Mo. 121 ; McPike v. AUman, 53 Mo. 551 ; Shewalter t;. Pirner, 55 Mo. 218 ; Hancock v. Watson, 18 Cal. 137 ; Piper ti. True, 36 Cal. 606; and see fully infra, §§ 942—950. So facts of public notoriety relating to a contract are to be presumed to be known to tlie parties, and these facts may be used in constru- ing ambiguous terms. Woodruff v. Woodruff, 52 N. Y. 53. Infra, § 1243. 1 Brock V. Brock, 98 U. S. 504 ; D. S. V. Peck. 102 U. S. 64 ; Emery v. Webster, 42 Me. 204 ; Grant v. Lathrop, 23 N. H. 67 ; French v. Hayes, 42 N. H. 30 ; Aldrich v. Aldrich, 135 Mass. 153 ; Hotchkiss u. Barnes, 34 Conn. 27; Knight v. Worsted Co., 2 Cush. 271 ; Phelps v. Bostwiek, 22 Barb. 314 ; Halstead v. Meeker, 15 N. J. L. 136 ; Frederick v. Campbell, 14 S. & E. 293 ; Bollinger v. Eckert, 16 S. & R. 422; Carmony v. Hoober, 5 Penn. St. 305 ; Martin v. Berens, 67 Penn. St. 462 ; Clarke o. Adams, 83 Penn. St. 309 ; Ratcliffe v. Allison, 3 Rand. 537 ; Ham- mam V. Keigwin, 39 Tex. 34. The question being which of two horses the defendant agreed to deliver to the plaintiff in exchange for a chat- tel of the plaintiff's, evidence that the plaintiff's chattel was, and was known by the parties to be, worth much less than the more valuable horse, is ad- missible. Norris v. Spofford, 127 Mass. 85. 2 Shore v. Wilson, 9 CI. & F. 556 ; per Parke, B. ; Guy v. Sharpe, 1 Myl. & K. 602, per Lord Brougham ; Sweet V. Lee, 3 M. & Gr. 466, per Tindal, C. J. ; Drummond v. Atty.-Gen., 2 H. of L. Ca. 862, by Lord Brougham ; Simp- son V. Margetson, 11 Q,. B. 32, by Lord Denman ; Taylor's Ev. § 1082. " I apprehend that there are two descriptions of evidence .... which are clearly admissible for the purpose of enabling a court to construe any written instrument, and to apply it practically. In the first place there is no doubt that not only when the lan- guage of the instrument is such as the court does not understand, it is com- petent to receive evidence of the proper meaning of that language, as when it is written in a foreign tongue ; but it is also competent where technical words or peculiar terms, or, indeed, any expressions are used which, at the time the instrument was written, had acquired an appropriate meaning, either generally or by local usage, or amongst particular classes.- . . . " This description of evidence is ad- missible in order to enable the court to understand the meaning of the words contained in the instrument itself, by themselves, and without reference to the extrinsic facts on which the instrument is intended to operate." Parke, B., Shore v. Wilson, 9 CI. & F. 555. Where a boundary, if being as claimed by the defendant, would have Tixn directly through a dwelling-house unmentioned in the applicatory deed, parol evidence was received of the con- struction given by the subsequent acts of the parties. Lovejoy v, Lovelt, 124 Mass. 270. ^ 940.] THE LAW OF EVIDENCE. [BOOK II. it was doubtful what articles a written order was for, it was held admissible to prove the business of the party drawn on.' So, where in a partition between heirs, a right of way is assigned to one of them, and it is doubtful which of two ways was intended by the deed, extrinsic proof as to the character of the ways is admis- sible, to solve the doubt.* Evidence, also, of surrounding circum- stances is admissible, to show that a guarantee was intended to be a continuing one.* So, such evidence has been received to explain the meaning of the phrase, " across a country," in a steeple-chase transaction ;* that " a thousand" means a hundred dozen ;' and that a contract to pay an actor so much a week was a contract to pay only during the theatrical season.* So, in a case elsewhere cited,' extrinsic evidence was received to explain the phrase, " Godly preachers of Christ's Holy Gospel," and to show that, according to the usage of a sect to which the grantor belonged, the grant was intended for that sect; and evidence, also, is admissible to show that " Gottesdienst," in a contract between two congregations for the building of an edifice to be built in common, does not cover Sunday schools.' It has been held, also, admissible to introduce proof of extrinsic facts to explain the local meaning of "good" or "fine" barley,' to indicate the amount implied in a contract to buy " your wool" from a'party ;"* and, generally, in all cases where the signifi- cation of a particular phrase is unsettled and variable in its nature, and where it is liable to have different senses attached to it in difi'er- ent places, to elucidate such meaning. But it is essential in such cases that the sense thus sought should be of a public and popular kind ; and it will not be allowable to show that a party used the term in a sense opposed to its local and conventional usage. Thus, where a testatrix was in the habit of treating certain shares as " double shares," evidence of this was not allowed to influence the 1 Hinnemann v. Hosenbaok, 39 N. Y. « Grant v. Maddox, 15 M. & W. 737. 98. ' Shore v. Wilson, 9 CI. & P. 565. 2 French v. Hayes, 43 N. H. 30. 8 Qass's App., 73 Penn. St. 39. This ^ Heffleld v. Meadows, L. R. 5 C. P. and analogous cases are discussed in 695- Whart. on Contracts, § 635. « Evans v. Pratt, 3 M. & G. 759. 9 Hutchinson v. Bowker, 3 B. & Ad. 5 Smith V. Wilson, 3' B. & Ad. 278. 278. See, as a case where parol evidence is w Macdonald v. Longbottom, 28 L. J. admissible to explain figures, Slater Q,. B. 293 ; 29 L. J. Q. B. 266. V. Cave, 12 Ohio St. 80. 100 CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. construction of her will, Page Wood, V. C, saying, " I mX^t^Jt^kkfi,, things to be as I find them, and cannot allow particular expressroii^ / said to have been made use of by this testatrix, to prevail, when they are not the general language universally applicable to the sub- ject-matter."' It must be remembered, however, that " A written 1 Millard v. Bailey, L. R. 1 Eq. 382 ; 35 L. J. Ch. 312; Powell's Evidence (4tli ed.) 420. In connection with the positions of the text, the following opinions will he of value : — "It is a rule of interpretation that the intention of the parties to a con- tract is to be ascertained by applying its terms to the subject-matter. The admission of parol testimony for such purpose does not infringe upon the rule which makes a written instru- ment the proper and only evidence of the agreement contained in it. Thus, for the purpose of identifying the sub- ject-matter to which the written con- tract relates, parol testimony of that which was in the minds of the parties, and to which their attention was di- rected at the time, may be given. It may be shown that a sample, to which the terms of the contract are applica- ble, was exhibited or referred to in the negotiation, and other statements of the parties then made may be re- sorted to. The sense in which the parties understood and used the terms expressed in the writing is thus best ascertained. Accordingly, it has been recently held, in an action upon a written contract relating to advertising charts, that verbal representations as to the material of which the chart was to be made, and the manner in which it would be published, although prom- issory in their character, were admis- sible. Stoops V. Smith, 100 Mass. 63; Hogins V. Plympton, 11 Pick. 97 ; Mil- ler V. Stevens, 100 Mass. 518." Colt, J., Swett V. Shumway, 102 Mass. 367. " In Macdouald v. Longbottom, 1 E. & E. 978, the defendant, by a. written contract, had purchased of the plain- tiffs, who were farmers, a quantity of wool, which was described in the con- tract simply as 'your wool.' Some time previously a conversation had taken place, in which the plaintiffs stated that they had a quantity of wool, consisting partly of their own clip, and partly of wool they had con- tracted to buy of other farmers. In an action for not accepting the wool, this conversation was held admissible in evidence, for the purpose of explain- ing what the parties meant by the term ' your wool.' Mumford v. Geth- ing, 7 C. B. (N. S.) 305, will be found equally to the point. In Thorington V. Smith, 8 Wall. 1, it was adjudged competent to show, by the contempo- raneous understanding of the parties, that the term ' dollars' meant Confed- erate dollars. I will not follow further the cases, but will content myself by quoting the general rule in question as defined by Tindal, C. J., in Shore v. Wilson, 9 Clark & P. 566, that defini- tion being in these words, namely : ' The true interpretation of every in- strument being manifestly that which will make the instrument speak the intention of the party at the time it was made, it has always been consid- ered an exception, or perhaps a corol- lary to the general rule above stated, that where any doubt arises upon the true sense an* meaning of the words themselves, or any difficulty as to their application under the surrounding cir- cumstances, the sense and meaning of 101 § 941.] THE LAW OF EVIDENCE. [BOOK II. instrument is not ambiguous because an ignorant and uninformed person is unable to interpret it. It is ambiguous only if found to be of uncertain meaning when persons of competent skill and infor- mation 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 explain 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 understanding of the words he has used."* § 941. Acts of the writer of an ambiguous document, being less , . liable to misinterpretation than oral expressions of inten- be received tion, and more likely to exhibit the writer's real purpose, as exposi- . -.i ■ , , tory of am- have been received, as to ancient documents, without the iguity- limitations just noticed as bearing on oral expression of intention. Thus, in a leading case on this point,* the House of Lords held that proof of the application of the funds of an ancient charity by the original founder, and first trustee, was strong evi- dence of intention, and might be so treated by the court in con- struing the grant. So, in a subsequent case,' Lord Chancellor Sugden, while acknowledging that he could not receive evidence of declarations of the founder of an ancient charity, as explanatory of his grant, held that it was admissible to inquire as to what acts such founder had done in relation to the charity. " Tell me," said this eminent judge, " what you have done under such a deed, and I will tell you what that deed means. "^ In a similar case, Tindal, C. J., held admissible " the early and contemporaneous application of the funds of the charity itself by the original trustees under the deed."" It may further be laid down' that all ancient instruments the language may be investigated and & War. 353, 366, 375, 376 ; aff. on ap- ascertained by evidence dehors the iu- peal, Drummond v. Atty.-Gen., 2 H. of strument itself.' " Beasley, C. J., L. Cas. 837. Sandford & Wright k. R. R. Co., 37 N. * 1 Dru. & War. 368. J. 3. See observations of Church, C. ^ Shore v. Wilson, 9 CI. & Fin. 569 ; J., in Reynolds v. Ins. Co., 47 N. Y. Atty.-Gen. u. Sidney Sussex Coll., 38 605. L. J. Ch. 657, 659, 660, per Ld. Hath- 1 Wigram on Wills, 2i ed. 130. erly, C; Law Rep. 4 Ch. App. 722, 2 Atty.-Gen. v. Brazenose College, 2 732, S. C; Atty.-Gen. v. May of Bris- 01. & F. 295. tol, 2 Jao. & W. 121, per Ld. Eldon. > Atty.-Gen. v. Drummond, 1 Dru. « Taylor's Ev., § 1090. 102 CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. L§ 942. of every description may, in the event of their containing ambigu- ous language, but in that event alone, be interpreted by evidence of the mode in which property dealt with by them has been held and enjoyed.' To the same end evidence of contemporaneous, and even of uniform modern usage, may be received for the pur- pose of construing ancient grants and charters.^ And in all cases the acts of the parties are received to give their common interpre- tation of ambiguous terms .^ § 942. In application of the rule already stated,* parol evidence as to the extrinsic condition of the grantor's property, or as to the intentions of the parties, is admissible in as to prop- order to explain ambiguous designations of property in beex""^^ deeds, or contracts for sale.* So parol evidence of pa^'o^^* ^^ 1 Weld V. Hornby, 7 East, 199, per Ld. EUenborough ; Waterpark v. Feu- nell, 7 H. of L. Cas. 650 ; Donegall v. Templemore, 9 Ir. Law R. N. S. 374 ; Atty.-Gen. v. Parker, 3 Atk. 577, per Ld. Hardwicke ; R. i/. Dulwich Col- lege, 17 a. B. 600 ; Atty.-Gen. v. Murdoch, 1 De Gex, M. & G. 86. In Atty.-Gen. v. St. Cross Hospital, 17 Beav. 435, 464, 465, Sir J. Romilly, M. R., held, that no presumption could be made against the clear os- tensible purpose of the foundation, though it were supported by a usage of 150 years. See Atty.-Gen. v. Clap- ham, 4 De Gex, M. & G. 591. See Wadley v. Bayliss, 5 Taunt. 752 ; recognized by Cresswell, J., in Doe v. Beviss, 7 Com. B. 511 ; Atty.-Gen. v. Boston, 1 De Gex & Sm. 519, 527 ; Doe V. Beviss, 7 Com. B. 456 ; Stammers u. Dixon, 7 East, 200. s Chad V. TUsed, 2 B. & B. 403; Doe V. Beviss, 7 C. B. 456 ; Beaufort V. Swansea, Ex. R. 413 ; Sliepherd v. Payne, 16 C. B. (N. S.) 132; Bradley V. Pilots, 2 E. & B. 427 ; Brune u. Thompson, 4 Q. B. 543; Sadlier v. Biggs, 4 H. of L. Cas. 435 ; Waterpark V. Fennell, 7 H. of L. Cas. 650. s Stone V. Clark, 1 Met. 378 ; Love- joy V. Lovett, 124 Mass. 270. * Supra, § 939. ^ Atkinson i;. Cummins, 9 How. 479 ; Darling v. Dodge, 36 Me. 370 ; Emery V. Webster, 42 Me. 204 ; French V. Hayes, 43 N. H. 30; Wright v. Worsted Co., 2 Cush. 271; Old Col. R. R. V. Evans, 6 Gray, 25 ; Kimball V. Bradford, 9 Gray, 243 ; Stevenson V. Erskine, 99 Mass. 3^7 ; Putnam v. Bond, 100 Mass. 58 ; Ganley v. Loo- ney, 100 Mass. 359 ; Pike v. Fay, 101 Mass. 134 ; Chester Co. o. Lucas, 112 Mass. 424; Grinnell u. Tel. Co., 113 Mass. 299; McFarland v. R. R., 115 Mass. 300; Bartlett v. Gas Co., 117 Mass. 533 ; Fitz u. Comey, 118 Mass. 100; Cleverly v. Cleverly, 124 Mass. 314 ; Brainerd v. Cowdry, 16 Conn. 1 ; Hotchkiss v. Barnes, 34 Conn. 27 ; Drew V. Swift, 46 N. Y. 204; Den v. Cubberly, 12 N. J. L. 308; Halsteed V. Meeker, 15 N. J. L. 136 ; Fuller V. Carr, 33 N. J. L. 157 ; Jackson v. Perrine, 35 N. J. L. 137 ; Carmony V. Hoober, 5 Penn. St. 305 ; Russell V. Werntz, 24 Penn. St. 337 ; Brown- field V. Brownfield, 20 Penn. St. 55; Huss V. Morris, 63 Penn. St. 372 ; 103 § 942.] THE LAW OP EVIDENCE. [book II. boundaries and locations, and of the intention of the parties at the time, may be received to explain ambiguous terms ;' and so may- Gump's App., 65 Penn. St. 476 ; Tattman v. Barrett, 3 Houst. 226 ; Dorsey v. Hammond, 1 Har. & J. 201 ; Grofif v. Rohrer, 35 Md. 327 ; Herbert v. Wise, 3 Call. 240 ; Elliott u. Harton, 28 Grat. 766 ; Graham u. Hamilton, 5 Ired. L. 428 ; Edwards v. Tipton, 77 N. C. 222; Wharton v. Eborn, 88 N. C. 344; Clements o. Pearce, 63 Ala. 284 ; Mariner v. Eod- gers, 26 Ga. 220 ; Bell v. Brumby, 53 Ga. 643 ; Doe v. Jackson, 9 Miss. 494 ; Rollins V. Claybrook, 22 Mo. 405 ; Jen- nings V. Briseadine, 44 Mo. 332 ; Means u. De la Vergne, 50 Mo. 343 ; McPike u. Allman, 53 Mo. 551 ; Shewalter v. Pirner, 55 Mo. 218 ; Sohreiberu. Osten, 50 Mo. 513 ; Burleson v. Burleson, 28 Tex. 383 ; Reed v. Ellis, 68 111. 206 ; Kamphouse o. Kaflfner, 73 111. 453 ; Slater v. Breese, 36 Mich. 77 ; Jenkins V. Sharpff, 27 Wis. 472 ; Pinney i. Thompson, 3 Iowa, 74; Baker v. Tal- bot, 6 T. B. Mon. 182; Reamer v. Nesmith, 34 Cal. 624; Ward v. Mc- Naughton, 43 Cal. 159 ; Altsohul v. San Francisco, 43 Cal. 171, and cases cited in following notes. When a sale is by sample, parol evidence of the character of the sam- ple is admissible. "If the sale was made by sample, the description of the sample was competent upon the ques- tion whether the article tendered cor- responded with that offered for sale. Hogins V. Plympton, 11 Pick. 97. So also, the description given verbally by the defendant's agent, and the corresponding descriptions of the ar- ticle delivered, were competent upon the question whether they were the same article. Stoops v. Smith, 100 Mass. 63. But such evidence must be confined to the question of identity in kind, and not extended to compari- 104 sons in degree or quality. It is ad- missible only when the writing does not distinctly define the article to be delivered, so as to enable its identity to be seen upon the face of the trans- action." Wells, J., Pike v. Fay, 101 Mass. 136. "It is always competent to identify by parol the subject-matter of a grant. It is not important to inquire whether the parol evidence is competent for the purpose of raising a latent ambi- guity, .... or whether it is evidence offered for the purpose of identifying the subject-matter of the grant, or for the purpose of applying the descrip- tion of the grant to the surfaces of the earth." Lord, J. Cleverly v. Cleverly, 124 Mass. 317. See infra, § 1002. In determining the boundary of a way described as running from a cer- tain point, " thence on a straight line to the shop of K.," oral evidence was held admissible to show that at the date of the bond an outside platform constituted a part of the shop. Dun- ham V. Gannett, 124 Mass. 151. ' Deery v. Cray, 10 Wall. 263 ; Hodges u. Strong, 10 Vt. 247 ; Allen V. Bates, 6 Pick. 460 ; Waterman v. Johnson, 13 Pick. 261 ; Gerrish c/. Towne, 3 Gray, 82; Hoar v. Gould- ing, 116 Mass. 132 ; Dunham v. Gan- nett, 124 Mass. 151 ; Thomson v. Wilcox, 7 Lansing, 376 ; Blackman v. Doughty, 10 Vroom, 402 ; Carroll v. Norwood, 1 Har. & J. 167 ; Midlothian V. Finney, 18 Grat. 304; Hutton v. Arnett, 51 111. 198 ; Bybee v. Hage- man, 66 111. 519 ; Harris v. Doe, 4 Blaokf. 369 ; Beal v. Blair, 33 Iowa, 318 ; Bessen v. Kurz, 66 Wis. 449 ; Hood V. Mathers, 2 A. K. Marsh. 653 ; Maguire v. Baker, 57 Ga. 109 ; Kim- CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 943. evidence of notoriety to the same effect.' Thus an agreement in ■writing to convey " the wharf and flats occupied hy T. and owned by H.," may be applied, by parol evidence, to two lots of land, only one of which bounded on the sea, and was separated from the other by a street, it appearing that both, at the time of the agreement, were owned by H. and occupied by T. for landing and storing wood and lumber, and had been originally one lot.* Statements, also, of a deceased vendor of land, made at the time of sale, to indicate the property sold, are admissible to aid in its identification.^ The same principle involves proof as to the position of lines, stakes, and stones, referred to boundaries, when there is doubt as to such posi- tion ;^ though boundary lines, definitely settled by a deed, cannot be varied by parol, if such lines are ascertainable." And parol evi- dence of disappeared monuments and stakes referred to in a convey- ance is admissible.* § 943. A vague or imperfect designation of property may be in this way explained.^ Thus, where a fine had been levied for twenty acres of land and twelve messuages in Chelsea, it was held permis- ball V. Brawner, 47 Mo. 398 ; McLeroy V. Duckworth, 13 La. An. 410 ; Colton V. Seavey, 22 Cal. 496 ; O'Farrell v. Harney, 57 Cal. 125. But evidence is permissible only where there is an ambiguity in the description or uncertainty in its ap- plication to the premises granted, or where the location operates as an es- toppel in pais. Baldwin v. Shannon, 43 N. J. L. 596. 1 Banoam v. George, 65 Ala. 259, 2 Gerrish v. Towne, 3 Gray, 82. 3 Parrott v. Watts, 37 L. T. 755. * Wing V. Burgis, 13 Me. Ill ; Abbott V. Abbott, 51 Me. 575 ; Gerrish v. Towne, 3 Gray, 82 ; Pettit v. Shephard, 32 N. Y. 97 ; Massengill v. Boyles, 4 Humph. 205 ; Reed v. Shenok, 2 Dev. L. 415 ; Colton V. Seavey, 22 Cal. 496. "When uncertainty arises in the application of a description, evidence is received of all the facts and circum- stances of the transaction, and' of the position and character of the land, for the purpose of ascertaining the real intention of the parties. Natural or artificial objects may be recognized as bounds or monuments by proof that they were recognized and accepted as such by the grantor and grantee." Devens, .T., Barrett v. Murphy, 140 Mass. 142. See supra, § 185 ff. ' Linscott V. Fernald, 5 Greenl. 496 ; Liverpool Wharf v. Prescott, 4 Allen, 22 ; Clark v. Baird, 9 N. Y. 183 ; Waugh u. Waugh, 28 N. Y. 94 ; Wynne v. Al- exander, 7 Iredell L. 237. Infra, § 1156 a. 6 Robinson i;. Kiue, 70 N. Y. 147 ; citing Wendell v. People, 8 Wend. 190 ; Drew v. Swift, 46 N. Y. 204. ' Thus it is generally agreed that on the issue what land was embraced in an agreement to convey, the situation of the parties and the circumstances under which the agreement was made, may be considered as bearing on the expressed intention. Aldrich v. Al- drich, 135 Mass. 153. 105 § 94i.] THE LAW OF EVIDENCE. [BOOK II. sible to show that, though the conusor's estate at Chelsea was under twenty acres, he had nineteen houses on it ; and further SgnaUon ^ proof was received as to what particular part of the pro- of property pg^ty -jyas intended to be included in it.* So again, to may be^-' i.ji_ thus par- take a familiar illustration, if an estate be conveyed by the designation of Blackacre, parol evidence is receivable to show what property is known by that name.^ Indeed it is essen- tial, where a testator devises a house purchased of A., or a farm in the occupation of B., to introduce extrinsic evidence to explain what house was purchased of A., or what farm was in B.'s occupation, before it can be shown what is devised.' Hence parol evidence is admissible to prove what is included in the expression, " known by the name mill-spot," in a deed of land.* So parol evidence may be received to show that the term " farm," in a deed, included a par- ticular fenced lot* So in an action on a policy of insurance of goods in a brick building, " known as D. & Co.'s car factory," parol evi- dence is admissible to show to what building the terms in question refer." And on a written agreement to lease " the Adams House, situate on Washington Street, in Boston," parol evidence is admis- sible to show that in this agreement it was not intended to include the separate shops forming the whole of the ground floor except the entrance to the hotel.' And, generally, property may be identified by parol.' § 944. We may therefore generally say that when a description P oi evi ^" ^ deed or other document is applicable to two or more dencead- obiects, parol evidence is admissible to distinguish be- missibleto '' , ,. ,, .,.„,. distinguish tween the objects, as well as to identity that intended ° ■'^'^ ^' by the parties." It is admissible, also, to identify or ' Doe V. Wilford, 1 C. & P. 284 ; R. the recital refers. Wilson v. Home, 37 & M. 88 ; Denn v. Wilford, 2 C. & P. Miss. 477. 173 ; Taylor, § 1036. « Blake v. Ins. Co., 12 Gray, 265. 2 Rioketts V. Turqnand, 1 H. of L. ' Sargent i'. Adams, 3 Gray, 72. Cas. 472. 8 Caldwell u. Carthege, 40 Ohio St. 1 Sanford v. Raikes, 1 Mer. 653, per 453 ; Soheible v. Slagle, 89 Ind. 323 Sir W. Grant ; Clayton v. Ld. Nugent, Chambers i^. Wilson, 60 Iowa, 339 13 M. & W. 207, per Rolfe, B. Dunkart v. Rinehart, 89 N. C. 354 ' Woods w; Sawin, 4 Gray, 322. Humes v. Bernstein, 72 Ala. 546 « Madden v. Tucker, 46 Me. 367. So Campbell v. Short, 36 La. An. 447. where "A.'s claim against B." is re- " Brooks v. Aldrich, 17 N. H. 443; cited, and there are several such claims, George v. Joy, 19 N. H. 544 ; Melvin v. evidence is admissible to show to which Fellows, 33 N. H. 401 ; Bell v. Wood 106 CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 945. distinguish, under like circumstances, property described in a fi. fa., or in a sheriff's deed.* But, as we have seen, parol evidence is not admissible to add articles to those already specified as pass- ing in an assignment.^ § 945. Suppose that in a dispositive document, which contains an adequate description of a specific object, there is in- troduced an erroneous particular, can such erroneous particulars particular be rejected as surplusage, if it be proved that *? descnp- there exists an object, and one object only, answering be rejected the body of the description ? Now, in view of the fact proof, that there are few cases in which, if we undertake mi- nutely to describe an object, we do not, while maintaining a general accuracy, introduce some erroneous detail, our answer to the ques- tion just put should be in the affirmative. And so has it been fre- quently held,' though it has been added that " if the premises be ward, 46 N. H. 315 ; Locke v. Rowell, 47 N. H. 46 ; Rugg v. Hale, 40 Vt. 138 ; Rhodes «. Castner, 12 Allen, 130 ; Doo- little V. Blakesley, 4 Day, 265 ; Ben- nett V. Pierce, 28 Conn. 315 ; Brinker- hoff 1-. Olp, 35 Barb. 27 ; Almgren u. Dutilh, 5 N. Y. 28 ; Clark v. Wethey, 19 Wend. 320 ; Rich v. Rich, 16 Wend. 663 ; Burr v. Ins. Co., 16 N. Y. 267 ; Pattou 1/. Goldsborough, 9 Serg. & R. 47 ; Bertsch v. Lehigh Co., 4 Rawle, 130 ; Barnhart v. Pettit, 22 Penn. St. 135 ; Aldridge v. Eshleman, 46 Penn. St. 420 ; Carrington v. Goddin, 13 Urat. 587 ; Morgan v. Spangler, 14 Ohio St. 102 ; Schlief v. Hart, 29 Ohio St. 150; Venable v. McDonald, 4 Dana (Ky.), 336 ; Myers v. Ladd, 26 111. 415 ; Mar- shall V. Gridley, 46 111. 247 ; Stewart V. Chadwick, 8 Iowa, 463 ; Sargeant v. Solberg, 22 Wis. 132 ; Spears v. Bur- ton, 31 Miss. 547 ; Hardy i;. Matthews, 38 Mo. 121 ; Senterfit v. Reynolds, 3 Rich. (S. C.) 128 ; Hughes v. Sandal, 25 Tex. 162. See Collins v. Rush, 7 S. & R. 147 ; Scott v. Sheakly, 3 Watts, 50 ; Ins. Co. u. Sailer, 67 Penn. St. 108 ; Harvey v. Vandegrift, 1 Weekly Notes, 629, to the effect that identity in such case may be a question of fact. 1 Abbott V. Abbott, 51 Me. 575 ; Mc- Gregor V. Brown, 5 Pick. 170 ; Lodge v. Barnett, 46 Penn. St. 477; Matthews V. Thompson, 3 Ohio, 272 ; Doe v. Roe, 20 Ga. 189 ; Webster v. Blount, 39 Mo. 500. 2 Supra, §§ 920-1 ; DriscoU v. Fiske, 21 Pick. 503 ; Taylor v. Sayre, 24 N. J. L. 647. ' Doe u. Galloway, 5 B. & Ad. 43 ; Goodtitle v. Southern, 1 M. & Sel. 219 ; Slingsby v. Grainger, 7 H. of L. Gas. 282; West v. Lawdray, 11 H. of L. Cas. 375 ; Day v. Trig, 1 P. Wms. 286 ; Sel- wood V. Mildmay, 3 Ves. 306 ; Miller v. Travers, 8 Bing. 244 ; Doe v. Chichester, 4 Dow. P. C. 65 ; MoMurray v. Spioer, L. R. 5 Eq. 527 ; Hardwick v. Hard- wick, L. R. 16 Eq. 168 ; Barberw.Wood, L. R. 4 Ch. D. 885 ; Aikman v. Cum- mings, 9 How. 470 ; Brown v. Huger, 21 How. 305 ; MoPherson v. Foster, 4 Wash. C. C. 45 ; Esty v. Baker, 50 Me. 331 ; Peaslee v. Gee, 19 N. H. 273 ; Bailey v. White, 41 N. H. 343 ; Park u. Pratt, 38 Vt. 552 ; Kellogg v. Smith, 107 § 946.J THE LAW OP EVIDENCE. [book II. described in general terms, and a particular description be added, the latter controls the former."* It is clear, also, that such par- ticularization cannot be rejected if introduced into the writing by- way of limitation.' But where a contract for tke sale of land has been fully executed, and the purchase-money paid, the vendee cannot recover damages for a deficiency in the quantity of land without actual proof of fraud or mutual mistake, when the boundaries of the land are accurately stated, and where the quantity is given as " so many acres, le the same more or less;"^ and it is held that in such a case the mere fact that the discrepancy between the quantity called for by the deed and the actual measurement is great, is not of itself sufiScient to prove fraud or mistake.* It has, however, been ruled 9 Cush. 375 ; Davis v. Rainsford, 17 Mass. 207 ; Sargent v. Adams, 3 Gray, 72; Putnam v. Bond, 100 Mass. .18; Loomas v. Jackson, 19 Johns. 449 ; Drew V. Swift, 46 N. Y. 207 ; Opdyke V. Stephens, 4 Dutch. (N. J.) 89 ; Mao- keutile v. Savoy, 17 S. R. 104 ; Brown V. Willey, 42 Penn. St. 369 ; Lodge u. Barnett, 46 Penn. St. 484 ; Hildebrand «. Fogle, 20 Ohio, 147 ; Evansville v. Page, 23 Ind. 527 ; Slater v. Breese, 36 Mich. 77 ; Reed o. Schenok, 2 Dev. L. 415 ; Miller v. Cherry, 3 .Tones (N. C), Eq. 29 ; Massengill v. Boyles, 4 Humph. 205 ; Stanley v. Green, 12 Cal. 162 ; Colton V. Seavey, 22 Cal. 496. See supra, § 412 ; infra, §§ 996-1001 ; and see 3 Wash. Real Prop. 4th ed. 403. ' Parke, J., Doe v. Galloway, 5 B. & Ad. 43. See Bagley v. Morrill, 46 Vt. 94 ; Drew v. Swift, 46 N. Y. 209 ; White V. Williams, 48 N. Y. 344. 2 Taylor v. Parry, 1 M. & Gr. 623. 3 See infra, § 1028. ' Kreiter v. Bomberger, 82 Penn. St. 59. In this case Sharswood, J., said : " The rule was stated by Mr. Justice Sergeant, in Galbraith v. Galbraith, 6 Watts, 112, in these words : ' An ex- amination of the numerous decided cases in our own reports will, I think, show that, in the common case between vendor and vendee, in a conveyance of 108 a tract of land bounded by adjoining owners, and described as containing so many acres, be the same more or less, at a certain price per acre, where there is no stipulation for admeasurement, nor any mala fides proved, redress cannot, after the bargain is closed, be given to either party for a siirplus or deficiency subsequently appearing.' This rule was adopted and confirmed in Hershey u. Keembortz, 6 Barr, 128. Chief Jus- tice Gibson adding : ' The vendor is answerable, in respect of the quantity, only for mala fides. ' There are, indeed, many dicta that the difference in the quantity may be so great as to be evi- dence itself of fraud or deceit, or of great misapprehension between the parties, — and then equity will relieve. Though no case is to be found of an actual application of this doctrine in favor of the vendee, or to show what must be the extent of the difference to raise the presumption ; yet, perhaps, it may be fairly conceded that, in an action to enforce the payment of pur- chase-money, a deduction under such circumstances will be allowed. Such is the weight of extra-judicial opin- ions. Boar V. MoCormick, 1 S. & R. 166 ; Glen v. Glen, 4 S. & R. 488 ; Bailey v. Snyder, 13 S. & R. 160 ; Mc- Dowell V. Cooper, 14 S. & R. 296 ; Ash- CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 946. that where, through mutual mistake or fraud, there is an excess of land conveyed, equitable assumpsit may be maintained to recover the value of the excess.' § 946. Ambiguous expressions as to extrinsic or other objects may be explained by parol proof ; but when the meaning of ^^.. ^^^ the ambiguous terms is thus supplied, the court must astoob- judge of the whole document in subordination to its legal te ex- sense as thus completed.^ The contract cannot be va- P^*'°^^- ried ; its obscure expressions may be explained, but this for the purpose not of moulding, but of developing the true sense.^ Thus, com V. Smitli, 2 P. E. 219 ; Frederick V. Campbell, 13 S. & R. 136 ; Haggerty V. Fagan, 2 P. R. .533 ; Coughenour's Adni'r v. Stauft, 27 P. F. Smith, 191. "The third class of cases, to which the one now under consideration be- longs, is where the contract is fully executed and the purchase-money paid. We are of the opinion that in this class the transaction cannot be ripped up without actual proof of fraud or mutual mistake. Upon this question the great- ness of the difference may be evidence, but not sufficient of itself. There must be other circumstances. Cases of this class very rarely arise. I can find but one instance in our books. That is the case of Large v. Penn, 6 S. & R. 488. There the difference was very great in reference to the extent of the premises. The quantity conveyed was described as 2| acres, and without the words ' more or less ;' the actual quantity was 1 acre 148 perches. Yet the vendee was denied relief." 1 See cases cited infra, § 1028 ; Jor- dan V. Cooper, 3 S. & E. 564 ; Bank v. Galbraith, 10 Barr, 490 ; Jenks v. Fritz, 7 W. & S. 201 ; Fisher v. Deibert, 54 Penn. St. 460 ; Schettiger v. Hopple, 3 Grant, 56 ; Beck v. Garrison, cited in- fra, § 1028. 2 Infra, §§ 996 et seq. Whar't. on Cont. § 630 ; Doe v. Hisoocks, 7 M. & W. 367 ; Doe v. Martin, 4 B. & Ad. 771 ; E. V. Wooldale, 6 Q. B. 549 ; Mac- Donald V. Longbottom, 1 E. & E. 977 ; Devonshire v. Neill, 2 L. E. Ir. 132; Home V. Chatham, 64 Tex. 37 ; Eobin- son V. Douthit, Ibid. 101. As to exten- sion of contracts by parol, see infra, § 1026. ' Purcell V. Burns, 39 Conn. 429 ; Cole u. Wendel, 8 Johns. 116 ; Dodge u. Patten, 18 Barb. 193 ; Dana v. Fiedler, 12 N. Y. 40 ; Filkins .;. Why- land, 24 N. Y. 338 ; Clinton v. Ins. Co., 45 N. Y. 454 ; Hill v. Miller, 76 N. Y. 32 ; Perry v. Bank, 77 N. Y. 304 ; Den V. Cubberly, 12 N. J. L. 308 ; Sandford u. R. R., 37 N. J. L. 1 ; Thayer v. Tor- rey, 37 N. J. L. 339 ; McCullough v. Wainright, 14 Penn. St. 171 ; Clarke v. Adams, 83 Penn. St. 309 ; Paul v. Ow- ings, 32 Md. 403 ; Warfield v. Booth, 33 Md. 63 ; Crawford u. Jarrett, 2 Leigh, 630 ; Sexton v. Windell, 23 Grat. 634 ; Knick V. Knick, 75 Va. 12 ; Chicago Dock o. Kinzie, 93 111. 415 ; Duling v. Johnson, 32 Ind. 155 ; Crooks v. Whit- ford, 47 Mich. 283 ; Haver o. Tenney, 36 Iowa, 80 ; Ames v. Lowry, 30 Minn. 283 ; Richards v. Sohlegelmich, 65 N. C. 150 ; Goldsmith v. White, 68 Ga. 334; Paysant o. Ware, 1 Ala. 160; Acker v. Bender, 33 Ala. 230 ; Gann v. Clendinnen, 68 Ala. 294 ; Chambers v. Eingstaff, 69 Ala. 140 ; Meyer «. Mit- chell, 77 Ala. 312 ; Schuetze v. Bailey, 40 Mo. 69 ; Washington Ins. Co. v. St. 109 § 947.] THE LAW OF EVIDENCE. [book ir. where a deed, among other things, conveyed all the " zinc" in a certain tract, excepting an ore called " franklinite," and when a contest arose as to whether a particular vein was "zinc" or "frank- linite," parol evidence was held admissible to show the meaning of " zinc."' Where, also, the defendant agreed to pay the plaintiff a certain sum for inserting a business card in his advertising chart, when it should be " published," parol evidence was held admissible to explain the style and character of the " chart," so as to determine the meaning of the word " published."'' Again : where a physician sold his " good-will" in practice to another, evidence was admitted to show in what vicinity this practice was maintained.^ So where there is a guarantee of general indebtedness, the details of such in- debtedness can be shown by parol.* § 947. Measurement as to boundaries and numbers, when am- biguous, may be explained by parol." Thus, under a ^™^^f"°"^ contract to sell by measurement, the returns of such mentand measurement may be proved by parol.' So where B. Bumbers .... . may be ex- agreed in writing to receive from S. sixty shares of bank plainer" "— parol. p aine y g^Q^j^^ qjj which $10' per share had been paid, and to Mary's, 52 Mo. 480 ; Coe v. Ritter, 86 Mo. 277 ; Rugely v. Goodloe, 7 La. An. 295 ; Piper o. True, 36 Cal. 606 ; Ellis V. Crawford, 39 Cal. 523 ; Franklin v. Mooney, 2 Tex. 452. " There is no question that latent am- biguities may be explained by parol evi- dence, and that such evidence may also be resorted to for the purpose of identi- fying the premises and applying the calls of the deed, in suits for rectifica- tion and specific performance, and in other actions and proceedings aflfeoting title." Soholfield, J., Lyman v. Gedney, 114 111. 410. As to latent ambiguities, see infra, § 956. 1 New Jersey Co. v. Boston Co., 15 N. J. Eq. 418. See supra,. § 939. As to terms of art, see infra, § 972. 2 Stoops V. Smith, 100 Mass. 63. 3 Warfieia v. Booth, 63 Md. 63. ' Day V. Leal, 14 Johns. R. 404 ; Morrison v. Myers, 11 Iowa, 638 ; Snod- grass V. Bank, 25 Ala. 161 ; Vardeman V. Lawson, 17 Tex. 10. 110 6 See infra, § 961 a. Where there is a conflict as to measurement of land, arising from a difference between the calls and the courses and distances, ar- ticles of agreement in pursuance of which the deed was executed may be admitted in evidence, to show the in- tent of the parties. Koch v. Dunkel, 90 Penn. St. 264. Where the meaning of the word "perch" is in contest, parol evidence was admissible to show that the parties, in their negotiation, estimated a perch at twenty-five cubic feet. Baldwin Quarry Co. v. Clements, 38 Ohio St. 587 ; Ward v. Bennett, 46 Wis. 407 ; as to boundaries see Lovejoy d. Lovett, 124 Mass. 270 ; Stevens y. Wait, 112111. 544. As to figures see Slater v. Cave, 12 Ohio St. 80 ; Hyde Park w. Andrews, 87 111. 229. 6 Hill w. McDowell, 14 Johns. R. 175. See infra, § 961 a. As to measurement by "scaling," see Busch i. Kilboone, 40 Mich. 297. CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 949. deliver S. his note for $667, to pay the balance in cash, and to pay five per cent, in advance ; it was held, the nominal value of each share being $50, that parol evidence was admissible to show whether it was understood by the parties that the five per cent, advance should be paid on each share only, or on the nominal amount.* On a contract, also, for the purchase of a certain number of " casks," parol evidence of the size of the casks is admissible.' § 948. One of the most interesting applications of the principle before us arises from the confusion of currency during the late civil war. In construing contracts made in the Confederate States during the war, the consideration of which was so many " dollars," to make the term " dol- lars" mean a standard widely apart from that which the parties intended would be a perversion of justice. It has consequently been held admissible, in such cases, " to show what was the currency the parties had in view.^ Where, however, there is no parol proof offered, the presumption is, that the lawful currency of the United States was intended.^ § 949. A latent ambiguity as to the parties to a contract may be removed by showing who are the real parties in interest," " as where Parol evi- dence ad- missible to prove " dollar" meant " Confed- erate dol- lar." 1 Cole V. Wendel, 9 Johns. R. 116. Contemporaneous writings also are ad- missible to aid in the construction of an ambiguous contract. Wilson v. Randall, 67 N. Y. 338. See infra, §§ 962, 971, 1015. 2 Keller v. Webb, 125 Mass. 88. » Thorington v. Smith, 8 Wall. 9-12 ; Atlantic R. R. Co. v. Bank, 19 Wall. 648 ; Bryan v. Harrison, 76 N. C. 360 ; Austin 0. Kinsman, 13 Rich. Eq^. (S. C.) 259 ; Craig v. Pervis, 14 Rich. Eq. (S. C.) 160 ; Chalmers v. Jones, 23 S. C. 463 ; Hightower v. MauU, 60 Ala. 495 ; Carmichael v. White, 11 Heisk. 262; Stewart v. Smith, 59 Tenn. 231 ; Donley v. Tindall, 32 Tex. 43. But see Oliver v. Shoemaker, 35 Mich. 464 ; Taylor v. Bland, 60 Tex. 29. That the term "current funds" may be ex- plained, see Davis v. Glenn, 76 N. C. 427. * The Confederate Note Case, 19 Wall. 557. 5 Whart. on Cont. § 803 ; Teed v. Elworthy, 14 East, 210 ; Moller v. Lam- bert, 2 Camp. 548 ; Maugham f. Sharpe, 17 C. B. N. S. 443 ; Lancey v. Ins. Co., 56 Me. 562 ; Bradstreet v. Rich, 72 Me. 233; Bartlett!). Remington, 59 N. H. 364 ; Foster v. McGraw, 64 Penn. St. 464; Mobberly v. Mobberly, 60 Md. 376; Richmond R. R. v. Snead, 19 Grat. 354 ; Scammon v. Campbell, 75 111. 223 ; Adams Co. v. Boskowitz, 107 111. 660 ; Bancroft v. Grover, 23 Wis. 463 ; Fallon v. Kehoe, 38 Cal. 44 ; Ellis V. Crawford, 39 Cal. 523. See Grant v. Grant, Law Rep. 2 P. & D. 8 ; 39 L. J. Pr. & Mat. 17, S. C. ; 39 L. J. C. P. 140, S. P. in another proceeding ; Law Rep. 5 C. P. 380, S. C. ; aff'd in Ex. Ch. 39 L. J. C. P. 272 ; and Law Rep. 5 C. P. 727 ; Serviss «. Stockstill, 30 HI § 949.] THE LAW OF EVIDENCE. fBOOK II. Ambip:uity as to par- ties may be explained by identifl- catiou. a person uses the name of a nominal partner, or where he trades in the name of himself and son,' or, conversely, where two or more persons use the name of one of them."^ So, where the Christian name of a vendee is left blank, this may be supplied by parol.' Where, also, a writing on its face primd facie creates a joint tenancy, it may be shown by the acts and dealings of the parties, though not, it seems, by declarations of intention, that a tenancy in common is what the writing, as rightly construed, creates.* It may be shown, also, that a joint indebtedness was intended to be joint and several.* So, if a man should make an ambiguous settlement on his children, evidence will be received as to the state of his family, and the circumstances in which he is placed as to the property disposed of.' It may be shown by parol that a depositor in a bank is the absolute owner of money entered to his credit as " trustee."^ Parol evidence, also, has been received to show that a grantor executed a deed by other than his real name ;' and to identify grantee or assignee,' provided the writing be not thereby contradicted." It has, on the same principle, been held that extrinsic evidence is admissible to prove who is the buyer and who the seller in a memorandum or note under the 17th section of the statute of frauds," and who is the person referred to in a libel.'* Ohio St. 418 ; Mayer v. Adrian, 77 N. C. 83 ; Barkley v. Tarrant, 20 S. C. 574 ; Chambers ■>. Falkner, 65 Ala. 448; Wyandotte v. Church, 30 Kan. 620. That an assumed or fictitious name can be explained by parol, see Leake, Cont. 2d ed. 446-7; Richard- son's Case, L. R. 19 Eq. 588 ; Gould v. Barnes, 3 Taunt. 604. J Spurr V. Cass, L. R. 5 Q. B. 686 ; Kell V. Nalnby, 10 B. & C. 20. ' Leake, 2d ed. 447 ; Cooke v. Seeley, 2 Ex. 746. ' 3 Wash. Real Prop. § 566 ; Fletcher V. Mansun, 5 Ind. 269. See Leach v. Dodson, 64 Tex. 185. * Harrison v. Barton, 30 L. J. Ch. 213, by Wood, V. C. * Beresford «. Browning, L. R. 1 C. D. 30. 112 ^ Atty.-Gen. v. Drummond, 1 Dru. & W. 367, Sugden, C. ' Powers V. Institution for Savings, 124 Mass. 377. 8 Nixon V. Cobleigh, 52 111. 387 ; Aultman v. Richardson, 7 Neb. 1. 8 Langlols v. Crawford, 59 Mo. 456. Thus, where the grantee is I. S., and there are two persons of that name, a father and son, parol evidence is ad- missible to show who is grantee. Simp- son V. Dix, 131 Mass. 179. » Leake, Cont. 2d ed. 446 ; Robinson V. Rudkins, 26 L. J. Ex. 56 ; State ». Nashville, 2 Tenn. Ch. 755. " Newell V. Radford, L. R. 3 C. P. 62. See Whart. on Agency, §§ 719 et seq. ^ Infra, § 976. CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 950. § 949 a. The question of variation of names by parol is discussed, in connection with dispositive documents, in other sec- yarjation tions,^ and so of the presumption arising from identity of names of names. ^ Questions arising as to names in criminal pleading are discussed in another volume.' § 950. The most common illustration of the exception last stated is where evidence is received to prove that P. is the real principal to a contract executed by A., who is in fact abie^undi^I only P.'s agent. The instrument in such case is not closed ■ 111-1 1 1-1 • ■ principal to varied by parol evidence, but parol evidence is intro- sue or be duced to make the instrument effective by showing who may 'be is the person whom the instrument binds or privileges, parof*^ ^^ The question is, who is A. ; and for the purpose either of enabling P. to bring suit on the instrument, or to be sued on the instrument by T., parol evidence is admissible to show that A. is the agent of P.^ J Supra, § 701 ; Infra, §§ 997, 999, 1014 flf. 2 Supra, § 701 ; infra, § 1273. 3 Whart. Cr. PI. §§ 94 et seq. See, also, 22 Cent. L. J. 220, 244. That a wrong Christian name can be corrected, see Cleveland v. Burnham, 64 Wis. 347. * Garrett v. Handley, 4 B. & C. 664 ; Higgins V. Senior, 8 M. & W. 834; Fowler v. Hollins, L. R. 7 Q. B. 616 ; Huttou V. Bullock, L. Jl. 9 Q. B. 572 ; Truman v. Loder, 11 A. & E. 589; Beckham v. Drake, 9 M. & W. 79 ; 2 H. L. Gas. 579 ; Elbing Act. Ges. v. Claye, L. R. 8 Q. B. 317 ; Calder v. Do- bell, L. R. 6 C. P. 486 ; Ford u. Wil- liams, 21 How. 207 ; Bradlee i;. Glass Co., 16 Pick. 347 ; Commercial Bank v. French, 21 Pick. 486 ; Bank of N. A. .,. Hooper, 15 Gray, 567 ; Lerned v. .Tohns, 9 Allen, 419; Nat. Life Ins. Co. v. Allen, 110 Mass. 398 ; Jones v. Ins. Co., 14 Conn. 601 ; Talntor v. Prendergast, 3 Hill, 72; Gates c.. Brower, 9 N. Y. 205 ; Coleman v. Bank, 53 N. Y. 393 ; Oelrichs v. Ford, 21 Md. 489 ; Ander- son V. Shoup, 17 Ohio St. 128; Ohio E. R. V. Middleton, 20 111. 629 ; Wolfley VOL. II. — 8 V. Bising, 12 Kans. 535 ; Nutt v. Hum- phrey, 32 Kans. 100 ; Hopkins v. La- couture, 4 La. R. 64 ; May u. Hewitt, 33 Ala. 161 ; Briggs o. Munohon, 56 Mo. 467 ; Sauer v. Brinker, 77 Mo. 289 ; Smith V. Moynihan, 44 Cal. 53 ; Engine Co. V. Sacramento, 47 Cal. 494. " The rule does not preclude a party who has entered into a written contract with an agent from maintaining an action against the principal, upon parol proof that the contract was made in fact for the principal, where the agency was not disclosed by the con- tract, and was not known to the plain- tiff when it was made, or where there was no intention to ' rely upon the credit of the agent to the exclusion of the principal. Such proof does not contradict the written contract. It superadds a liability against the prin- cipal to that existing against the agent. That parol evidence may be introduced in such a case to charge the principal, while it would be inadmissible to dis- charge the agent, is well settled by authority." Andrews, J., Coleman v. First Nat. Bank of Elmira, 53 N. Y. 393. 113 § 951.J THE LAW OF EVIDENCE. [book II. § 951. Yet it is not admissible for an agent, signing an instru- ment in his own name, to defend himself when sued by But person proof that he acted in the matter only as agent,^ though signitig as • i- -ii principal he may prove agency in connection with an agreement upThaVhe by the other contracting parties that he should be re- r*lnt°'^ garded only as agent.* Nor does the right by parol evidence to charge a principal,^ or to enable him to sue on a contract, extend to suits on sealed instruments or negotiable paper, when innocent third parties are concerned.* The distinction to be kept in mind is, that while parol evidence cannot be received to discharge a party, it may be received when its effect is to show that another party, namely, the principal, is bound.* Parol evidence may also be received to show that an In Barry o. Ransom, 12 N. Y. 464, Denio, J., in speaking of the rule, say s : " It is a valuable principle, which we would be unwilling to draw in question, but we think it is limfted to the stipulations between the parties actually contracting with each other by the written instrument." Where the vendees are "an associa- tion of persons," who are not named, evidence of who composed the associa- tion is admissible, as is evidence of the interest of each. Pratt v. California Mining Co., 24 Fed. Rep. 869 ; S. C. 9 Sawyer, C. Ct. 354. ' Wharton on Agency, § 298 ; Hig- gins V. Senior, 8 M. & W. 834; 2 Smith's Lead. Cases, note to Thompson V. Davenport ; Royal Ex. Ass. v. Moore, 2 New R. 63 ; Sowerby v. Butcher, 2 C. & M. 371 ; Magee v. Atkinson, 2 M. & W. 440 ; Jones o. Littledale, 6 A. & E. 486 ; Bradlee v. Glass Co, , 16 Pick. 347 ; Bank of N. A. v. Hooper, 15 Gray, 667 ; Babbett c Young, 51 N. Y. 238 ; Bryan v. Brazil, 62 Iowa, 360. * Williams v. Robbins, 16 Gray, 77 ; Pease v. Pease, 35 Conn. 131 ; Miles v. O'Hara, 1 S. & R. 32 ; but see Nash v. Town, 6 Wall. 689 ; Williams v. Chris- tie, 4 Duer, 39 ; Chappell v. Dann, 21 Barb. 17. See Rogers ». Hadley, 2 H. 114 & C. 249; Wake v. Harrop, 30 L. J. 273 ; 31 L. J. 451. ' Thus it has been held in Rhode Island that parol evidence is not ad- missible to show that A. is the real principal to a sealed instrument instead of B., and that B. is only agent. Prov- idence V. Miller, 11 R. I. 272. * Whart. on Ag. §§ 290, 411, 504; Emly V. Lye, 15 East, 7 ; Lefevre v. Lloyd, 5 Taunt. 749 ; Siffkin v. Walker, 2 Camp. 308 ; Leadbitter v. Parrer, 5 M. & S. 345 ; Beckham v. Drake, 9 M. & W. 79 ; Hancock v. Fairfield, 30 Me. 299 ; Bradlee v.- Glass Man., 16 Pick. 347 ; Stackpole v. Arnold, 11 Mass. 27 ; Bank of N. A. v. Hooper, 5 Gray, 567 ; Dessau v. Bours, 1 McAU. 20 ; Pentz v. Stanton, 10 Wend. 276 ; Anderson v. Shoup, 17 Ohio St. 128 ; Hiatt v. Simp- son, 8 lud. 256 ; Lander v. Castro, 43 Cal. 497 ; Bogan v. Calhoun, 19 La. An. 472. See as to negotiable paper fully, infra, §§ 1058-60. 5 Taylor's Ev. § 1055 ; Higgins v. Senior, 8 M. & W. 844, 845. That in the absence of custom making a broker personally liable, he is not personally liable when signing as such, see South- well V. Bowditch, 1 C. P. D. 374 ; C. A., reversing 1 C. P. D. 100. CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 952. agent, dealing for an undisclosed principal, has made himself per sonally liable.' So, a person who appears in a contract as agent may be shown to be the real principal, in the event of his being sued by the party with whom he contracted.^ In equity, however, as we have seen, the plaintiff in such a case may, if the evidence be to such effect, be regarded as having estopped himself, by an agreement upon sufficient consideration, from proceeding against the defendant.^ It should be remembered, also, that an undisclosed principal cannot, by disclosing himself, cut off the other contracting party from any defence he might otherwise make.* § 952. When a bond is by its terms joint and several, and con- tains no indication as to which of the obligors is surety, „ . parol evidence, as between the parties, is admissible in writing; equity (and now in most jurisdictions at law), for the proved by purpose of showing which of the obligors is surety, and p^™'- the knowledge of this relationship by the obligees.* This excep- tion is now extended to suits on negotiable paper,* in cases where ' Fleet V. Murton, L. R. 7 Q. B. 126 Fairlee v. Denton, L. R. 5 Ex. 169 Hutohin v. Tatham, L. R. 8 C. P. 482 Mason v. Massa, 122 Mass. 477. 2 Carr v. Jackson, 7 Exoheq. R. 382. 3 In Chandler v. Coe, 54 N. H. 561, it is held that if the principal was not disclosed at the time of the making of the contract by the agent in his own name, he may be held liable thereon by parol proof ; but that if the princi- pal was disclosed at the time, such evi- dence cannot be admitted, not by rea^ son of the rule of evidence, but upon the ground of estoppel ; that the ac- ceptance of the instrument executed in the name of the agent is conclusive evidence of an election to look to the agent exclusively. And it was also held, that where there is an express contract in the agent's name, whether verbal or written, the principal is not liable to be sued upon an implied con- tract arising from the passage of the consideration between his agent and the other contracting party, unless an action might be sustained against him upon the express contract. * Whart. on Agency, § 405. See Humble v. Hunter, 12 Q. B. 310. 5 Davis V. Barrington, 30 N. H. 517 ; Barry v. Ransom, 12 N. Y. 462 ; Brown t. Stewart, 4 Md. Ch. 368 ; Smith o. Bing, 3 Ohio, 33 ; Diokerson v. Commis., 6 Ind. 128 ; Welfare v. Thompson, 83 N. C. 276 ; Garrett u. Ferguson, 9 Mo. 125 ; Scott V. Bailey, 23 Mo. 140 ; Field V. Pelot, 1 McMul. Eq. 369 ; Bank i;. White, 14 Nev. 373. See fully infra, § 1059. 6 Infra, §§ 1059 et seq. ; Taylor's Ev. § 1054 ; Greenough v. Greenough, 2 E. & E. 424 ; Mutual Loan Co. v. Sudlow, 5 C. B. (N. S.) 449 ; Pooley v. Harra- dine, 7 E. & B. 431 ; Lawrence v. Walmsley, 12 C. B. (N. S.) 799 ; Bris- tow V. Brown, 13 Ir. Law R. (N. S.) 201 ; Davis v. Barrington, 30 N. H. 517 ; Archer v. Douglass, 5 Denio, 509 ; Hubbard v. Gurney, 64 N. Y. 457. See for American cases infra, §§ 1060— 61. 115 § 953.] THE LAW OF EVIDENCE, [BOOK 11. the statute of frauds does not intervene. ^ In questions of contri- bution, also, the relationship of alleged co-sureties may be shown by extrinsic proof.'' But it is otherwise as to a document in which a party expressly describes himself as principal.' Nor can the averments of a contract be in this way ordinarily contradicted.* § 953. When there are two persons or objects to either of whom the document in question apparently equally applies, but of distinc- to Only One of whom it can be made to apply, parol evi- idenWflca- dence of extraneous facts or of intent will be received *'°°" to show which the testator meant." The same rule applies as to all disputed terras. Thus it is admissible to prove by parol that a certificate of deposit taken by a guardian in his own name was really a certificate of deposit of his ward's money f to show that a person acting as " treasurer" or " agent" acted as treasurer or agent for a particular company ;' to show that a husband, in making an instrument, was really agent for his wife in whole or in part,' to show that P. was the real purchaser, and that T. was merely his trustee ;' to show the identity of " Eli" with " Elias" in a grant from the state ;'" to show that a Christian name in a deed or grant from the state was entered by mistake for another name ;" to show, where a deed of land was executed to E. A. C, which was the name of E. A. S. before marriage, that E. A. S. was the in- tended grantee ;'^ to show that a blank in the vendee's name in an act of sale was intended for H. T. W., as the recitals in the act in- dicated ;" to show that " Hiram Gowing, cordwainer," the nominal grantee in a deed, was intended for " Hiram G. Gowing," a cord- wainer, a man of middle age, and not for his infant son, Hiram 1 Hauer «. Patterson, 84 Penn. St. ' Wharton on Agency, §§ 291, 296, 274. See infra, § 1059. 409, 492, 729 ; Mich. State Bank v. ' Turner v. Davis, 2 Esp. 478 ; Tay- Peck, 28 Vt. 200. lor t'. Savage, 12 Mass. 98 ; Barry t. " Westholz v. Eetaud, 18 La An. Sansom, 37 N. H. 564. 285 ; Dunham c. Chatham, 21 Tex. 3 McMillan v. Parkell, 64 Mo. 286. 231. * Norton v. Coons, 2 Selden, 33. s Leakey v. Gunter, 25 Tex. 400. 6 Supra, §§ 939 ff ; Hall u. Davis, 36 Infra, § 1031. N. H. 569 ; Hoar v. Goulding, 116 Mass. i» Henderson v. Hackney, 23 Ga. 383. 132 ; Frederick v. Campbell, 14 S. & R. " Williams v. Carpenter, 42 Mo. 327 ; 293 ; Morgan v. Burroughs, 45 Wis. Henderson v. Hackney, 23 Ga. 383. 211. 12 Soanlan v. Wright, 13 Pick. 523. " Beasley v. Watson, 41 Ala. 234. la Beauvais v. Wall, 14 La. An. 199. 116 CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 955. Gowing ;' to show, when there are two persons hearing the exact name of the grantee in a deed, which was intended ;^ and to show that, through a mispunctuation, " A. B., orphan," should be read " A. B.'s orphan."' But, as is elsewhere seen,* when the mistake is a mistake of judgment on the part of a grantor, as between two persons, and not a mistake of the name of a particular intended person, parol evidence is not admissible to correct the mistake." As a general rule, however, parol evidence is admissible to explain latent ambiguities as to names.* § 954. We will elsewhere observe that evidence of the course of business between two contracting parties is admissible to . ,. . , , . . , Evidence show that they used certain litigated words in a special of writer's sense.' On the same principle it is admissible to show guagead-' that the writer of a unilateral document was in the habit " j^^^'® '"^ of giving a particular meaning, distinct from that pri- latent am- marily expressed, to a disputed word. This is frequently illustrated in cases where a testator's habit of misnaming a parti- cular person is put in evidence to explain a particular devise.' Con- tractions and shortrhand expressions may be in like manner in- terpreted by showing their customary meaning, or the meaning of the parties by whom they are used.' § 955. Under the statutes enabling parties to be wit- ^i^'J^'j^^ nesses, a party, in all cases where extrinsic evidence is siWeto admissible to prove a party's declarations of intent, may intent or be himself permitted to testify to such intent or under- "t°n^^ng_ standing ; although in most states he is precluded from so 1 Peabody v. Brown, 10 Gray, 45. 2 Coit V. Starkweather, 8 Conn. 289 ; Avery v. Stites, Wright (Ohio), 56. a Walker v. Wells, 25 Ga. 141 ; Tuggle V. MoMath, 38 Ga. 648 ; Sim- mons u. Marshall, 3 G. Greene, 502. That documents may be identified by parol, see Dester v. Whitbeok, 46 Conn. 224. As to other cases of identification, see infra, § 957 ; Cotton Ins. Co. v. Carter, 65 Ga. 228 ; Thompson v. Hall, 67 Ga. 627. * See infra, §§ 1082-9. 6 See Crawford v. Spencer, 8 Cush. 418 ; Jackson v. Hart, 12 Johns. R. 77 ; Jackson o. Foster, 12 Johns. E. 488 ; Moody v. McCowen, 39 Ala. 586. 6 Infra, § 949 ; Whart. on Contracts, § 803 ; Spurr v. Cass, L. R. 5 Q. B. 656 ; Foster v. MoGraw, 64 Penn. St. 464 ; Scammou v. Campbell, 75 111. 223. ' Infra, §§ 962-1001. 8 See for cases, infra, §§ 1010 et seq. » Infra, § 972 ; Sweet v. Lee, 3 Man. & Gr. 452. 117 § 955.] THB LAW OF EVIDENCE. [BOOK II. testifying where the cither contracting party is deceased.' So wherever a witness's intent is relevant, he may be examined as to it.2 But a party cannot be examined to vary, by proving his intent, a contract on its face unambiguous.^ 1 Supra, §§ 466, 482 ; Hale v. Tay- lor, 45 N. H. 405 ; Delano v. Goodwin, 48 N. H. 205 ; Fisk v. Chester, 8 Gray, 506 ; Lombard u. Oliver, 7 Allen, 155. " Before the statute making parties competent witnesses, the ordinary way to prove their Intent or understanding was by circumstantial evidence. But now that the party himself is admitted to testify, there Is no reason for con- fining his testimony to a variety of cir- cumstances tending to show his purpose or understanding, when he knows and can testify directly what that purpose or understanding was. Accordingly, it has been held that where the intention or good faith of a party to a suit be- comes material, it may be shown directly as well as from circumstances ; and the party himself, if a competent witness, may testify directly to his in- tention or understanding, unless pre- vented by some other principle of law applicable to the particular case. Hale V. Taylor, 45 N. H. 405 ; Norris V. Morrill, 40 N. H. 395 ; Fisk v. Ches- ter, 8 Gray, 506 ; Thaoher v. Phinney, 7 Allen, 146 ; Lombard v. Oliver, 7 Allen, 155. The same principle must apply to the ' understanding' of a party relative to the meaning or effect of a contract. To prove a contract, it must be shown (except in cases where tlie doctrine of estoppel applies) that both parties have understandingly assented to the same thing in the same sense. See 1 Parsons on Contracts, 4th ed. 399 b. But although the issue on trial is whether there has been a concur- rence in understanding of twe parties, yet it is not improper to prove sepa- rately the understanding of each. See 118 Hale V. Taylor, 45 N. H. 407. It is no objection to a single piece of evidence that it does not make out the whole of a plaintiflF 's case. The evidence to prove several propositions (all of which are requisite to the case) may be of different kinds and drawn from differ- ent sources. See Blake v. White, 13 N. H. 267, 272. In proving a concur- rence of understandings the plaintiff may prove his own understanding by one witness, and defendant's under- standing by another witness. The admissibility of party's evidence as to how he understood a, contract cannot depend upon the grounds of that understanding, though these grounds may often be very important in deter- mining the credit to be given to such evidence. Whether his understanding is founded on personal knowledge or hearsay is of no consequence in poin/t of law, provided it actually concurs with the other party's understanding ; and, if it does not so concur, then his testimony on this point is immaterial, except in oases of estoppel, where the party claiming that the other is es- topped would have to show how he himself understood the contract, and then show that the other party induced him to entertain and act upon that understanding." Delano v. Goodwin, 48 N. H. 205, 206, Smith, J. 2 Stearns v. Gosselin, 58 Vt. 38 ; Over V. Schriffling, 102 Ind. 191 ; Heap V. Parrish, 104 Ind. 196 ; supra, § 545. s Dillon V. Anderson, 43 N. Y. 231 ; Lewis V. Rogers, 34 N. Y. Sup. Ct. 64 ; Harrison v. Kirke, 37 N. Y. Sup. Ct. 396, fully cited supra, § 482. See Gould V. Lead Co., 9 Cush. 338, where CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [^ 956. § 956. The admission of evidence to explain ambiguities is con- fined to such ambiguities as are latent. That which is called a patent ambiguity (i. e., one in which the im- t^u^tieB"" perfection of the writing is so obvious that the idea that cannot be it was intended cannot be absolutely excluded) cannot be explained by parol. ^ Judge Story, in this relation,^ makes a new distinction : " There seems, indeed, to be an intermediate class of cases, partaking of the nature both of patent and latent ambi- guities ; and that is, where the words are all sensible, and have a settled meaning, but at the same time consistently admit of two in- terpretations, according to the subject-matter, in the contemplation of the parties. In such case, I should think that parol evidence might be admitted, to show the circumstances under which the con- tract was made, and the subject-matter to which the parties re- ferred."' But an ambiguity which is only developed by extrinsic evidence is not patent in the strict sense of the term. A patent ambiguity is one which arises from the writer's own incapacity, either of perception or explanation, and exhibits itself on the face of the writing. His meaning in a particular relation he fails to ex- hibit, and the writing shows the failure. But in the cases men- it was held that the opinion of the director of a corporation could not be received to explain the meaning of a recorded resolution of the board. 1 Bacon's Law Tracts, 99, 100 Clayton u. Nugent, 13 M. & W. 200 Whately v. Spooner, 5 Kay & J. 542 Webster v. Atkinson, 4 N. H. 21 Pingry v. Walkins, 17 Vt. 379 ; Hor- ner V. Stillwell, 35 N. J. L. 307 ; Berry o. Matthews, 13 Md. 537; Clark v. Lancaster, 36 Md. 196 ; Bowyer v. Martin, 5 Rand. (Va.) 525 ; Morris v. Edwards, 1 Ohio, 189 ; Richmond u. Farquhar, 8 Blaokf. 89 ; Panton v. Tefft, 22 111. 366 ; Eggert v. White, 59 Iowa, 464; Fiudley v. Armstrong, 23 W. Va. 113 ; Robeson v. Lewis, 64 N. C. 734 ; Goodman v. Henderson, 68 Gra. 567 ; Harriman v. Baptist Church, 63 Ga. 166 ; McGuire v. Stephens, 42 Miss. 724 ; Brown v. Guioe, 46 Miss. 299 ; Peaoher v. Strauss, 47 Miss. 358 ; Johnson v. Ballew, 2 Port. Ala. 29 ; Force v, Hibbard, 63 Ala. 410 ; Camp- bell V. Johnson, 44 Mo. 247 ; Jennings V. Briseadine, 44 Mo. 332 ; Mithoff v. Byrne, 20 La. An. 363; McNair v. Toler, 6 Minn. 435 ; Hobart v. Beers, 26 Kan. 329 ; State Historical Soo. v. Lincoln, 14 Neb. 336 ; Norris v. Hunt, 51 Tex. 609 ; Brandon o. Leddy, 67 Cal. 43. See Fish v. Hubbard, 21 Wend. 651 ; and infra, § 1006. It must be at the same time remem- bered that patent mistakes may he cor- rected, when practicable, hy the con- text. Wilson V. Wilson, 5 H. L. C. 60 ; Marion v. Faxon, 20 Conn. 486 ; Huyler v. Atwood, 26 N. J. Eq. 504. 2 Peisch V, Dickson, 1 Mason, 9. ' See comments of Moncure, J., in Early v. Wilkinson, 9 Grat. 74. And see Byers v. Wheatly, 59 Tenn. 160. 119 § 957.] THE LAW OF BVIDENCE. [BOOK II. tioned by Judge Story there is no ambiguity in the writer's mind, but a conception which fails simply because thfe words selected by the writer are susceptible of a meaning other than that which he intended. By Sir J. Stephen the rule is stated more correctly to be, that " if the words of a document are so defective or ambigu- ous as to be unmeaning, no evidence can be given to show what the author of the document intended to say."' We may add that latent ambiguities in contracts, when raised by parol evidence, can be got rid of by parol evidence.* § 957. Were we to translate Lord Bacon's maxim into modern terms, we might say that a patent ambiguity is subjec- is '^sub- tivs, that is to say, an ambiguity in the mind of the J^'^*'y,Y' writer himself; while a latent ambiguity is objective, tent," "ob- that is to say, an ambiguity in the thing he describes. A writer's mind may be ambiguous for several reasons. He may have no idea on the topic on which he writes ; and if so, it is inadmissible to prove that he had an idea, which would be to contradict the writing itself, and which would make him say what he did not intend to say. In such case a writing is to be treated as a piece of blank paper, and is not (as is the case with a mean- ingless will) to be permitted in any way to disturb the due course of the law. To graft a meaning, for instance, on a meaningless will, would be to open the way to great frauds, and to contravene the statutes requiring wills to be in writing. Or a writing may be ambiguous because the writer intends it to be so. Of this an illus- tration is to be found in a much litigated case in which the testator left his estate to his " heir at law." It was perfectly competent for him to say in his will who his " heir at law" was, and to make such person his heir at law ; but he did not choose to do so, but preferred to leave it to the law itself to decide who was his heir at law. Now in such a case to have taken evidence to prove that Mr. Aspden, the testator, at one time said that he liked one nephew, or that at another time he said he liked another nephew, would have been to contravene (1.) the statute which requires wills to be writ- ten ; (2.) the policy of the law which forbids the transfer of 1 Steph. Ev. art. 91 ; citing Baylis « Towle v. Topliam (Ch. Div. 1878), V. R. J., 2 Atk. 239 ; Shore v. Wilson, 37 L. T. 308 ; 26 W. R. Dig. 253. 9 C. & F. 365. See infra, § 1006. 120 CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 958. property by loose talk ; and (3.) the intention of the testator, which was to have the question of heirship determined, not by him- self, but by the courts. Hence, in this famous case, extrinsic evi- dence as to his intention was properly rejected.* On the other hand, an ambiguity which is " latent" or " objective" is an am- biguity, not in the writer's mind, which it is not the business of the court to clear, but in the thing described, which it is the business of the court to discover and to distinguish, so as to carry out the writer's intent. Hence, parol evidence is admissible to solve such an ambiguity.^ § 958. Usage cannot be introduced either to give to a disposi- tive writing a meaning different from that which it bears „ on its face, or to interpret any of the terms used in such not in gen- writing, in a sense conflicting with that attached to such dispositive terms by law.* Thus where goods had been sold "^"''''^&- 1 Aspden's Est., 3 Wall. Jr. 368. * See cases cited supra ; Baldwin Co. V. Clements, 38 Ohio St. 587 ; Lanman i>. Crooker, 97 Ind. 163 ; Ritchie v. Pease, 114 111. 353 ; Lyman v. Gedney, Id. 388 ; Farmer u. Batts, 83 N. C. 387 ; Kaphan v. Ryan, 10 S. C. 352 ; Saulsbury v. Blandys, 60 Ga. 646 ; Force v. Hibbard, 63 Ala. 410 ; Sikes V. Shews, 74 Ala. 382 ; Meyer v. Mit- chell, 75 Ala. 475 ; Gofif v. Roberts, 72 Mo. 570 ; Trowbridge v. Dean, 40 Mich. 687; Nilson v. Morse, 52 Wis. 240; Terry v. Berry, 13 Nev. 514 ; Jenkins V. Lykes, 19 Fla. 148. ' R. V. Lee, 12 Mod. 514 ; Smith v. Wilson, 3 B. & Ad. 731 ; Hookin v. Cooke, 4 T. R. 314 ; Wigglesworth v. Dallison, 1 Smith's Leading Cases, 498 ; Noble V. Durell, 3 T. R. 371 ; Blaokett V. Exch. Co., 2 Cr. & J. 249 ; Doe u. Lea, 11 East, 312 ; Sotilichos v. Kemp, 3 Ex. R. 105 ; Holding v. Pigott, 7 Bing. 465, 474 ; 5 M. & P. 427, S. 0. ; Clarke V. Roystone, 13 M. & W. 752 ; Yeats v. Pim, Holt N. P. R. 95 ; nom. Yates v. Pym, 6 Taunt. 446, S. C. ; Trueman v. Loder, 11 A. & E. 589 ; 3 P. & D. 267, S. C. ; Munoey v. Dennis, 1 H. & N. 216 ; Suse v. Pompe, 8 Com. B. N. S. 538 ; Buckle v. Knoop, 36 L. J. Ex. 49 ; Menzies v. Lightfoot, 11 L. R. Eq. 459 ; Insurance Co. v. Wright, 1 Wall. 456 ; Merchants' Bank v. State Bank, 10 Wall. 604 ; Moran u. Prather, 23 Wall. 499 ; Grace v. Ins. Co., 109 U. S. 278 ; Patch o. White, 117 U. S. 210 ; Cabot I/. Winsor, 1 Allen, 546 ; Dodd V. Farlow, 11 Allen, 426 ; Luce v. Ins. Co., 105 Mass. 297 ; Davis v. Galloupe, 111 Mass. 121 ; Sawtelle v. Drew, 122 Mass. 228 ; Glendale Co. u. Ins. Co., 2] Conn. 19 ; Simmons v. Law, 4 Abb. (N. Y.) App. Dec. 241 ; Lombardo v. Case, 45 Barb. 95 ; Thompson v. Ash- ton, 14 Johns. 317 ; Woodruff u. Bank, 25 Wend. 673 ; Markham v. Jaudon, 41 N. Y. 235 ; Farm. & Mech. Bk. a. Sprague, 52 N. Y. 605 ; Stenton «. Jerome, 54 N. Y. 480 ; Baker v. Drake, 66 N. Y. 518 ; Security Bank u. Nat. Bank, 67 N. Y. 458 ; Bank of Com- merce V. Bissell, 72 N. Y. 615 ; Her- mann V. Ins. Co., 100 N. Y. 411 ; Bige- low V. Legg, 102 N. Y. 652; Schenck V. Griffin, 38 N. J. L. 462 ; Coxe v. Heisley, 19 Penn. St. 243 ; Wetherill V. Neilson, 20 Penn. St. 448 ; Wilmer- 121 § 959.] THE LAW OF BVIDENCB. [book II. through a London broke-r under a written contract, which stipu- lated that payment should be made by bills, Lord Ellenborough rejected evidence of a custom, that bills meant approved bills.* So where linseed was bought to be delivered at Hull, and " fourteen days to be allowed for its delivery from the time of the ship's being ready to discharge," evidence to show that this stipulation was in- tended by the parties for the benefit, not of the seller, but of the buyer, who had the option of accepting the seed during any portion of the fourteen days, was rejected.^ § 959. On the other hand, documents may be explicable by usage as to matters in respect to which they are obscure or silent.^ But it ing V. MoGaughey, 30 Iowa, 205 ; Os- good u. McConnell, 32 111. 74 ; Marc v. Kupfer, 34 111. 287 ; Sanford u. Raw- lings, 43 111. 92 ; Gilbert v. McGiiinis, 111 111. 28 ; Rafert v. Soroggins, 40 Ind. 195; Spears a. Ward, 48 Ind. 546; Marks v. Cass Co. Mill, 43 Iowa, 146 ; Advertiser Co. ». Detroit, 43 Mich. 116 ; Werner v. Footman, 54 Ga. 128 ; Sugart V. Mays, 54 Ga. 554 ; Jackson v. Beling, 22 La. An. 377 ; Mangum u. Ball, 43 Miss. 288 ; Haryey v. Cady, 3 Mich. 431. As to negotiable paper, see'iufra, § 1058. The impolicy df expanding the rule admitting this kind of evidence is thus discussed by Lord Denmau : " If a legislator were called to consider the expediency of passing a law upon this subject, the conclusion at which he would arrive is hardly open to a doubt. He would decide at once that the written contract must speak for itself on all occasions ; that nothing should be left to memory or speculation. There is no iuoonvenieuoe in requir- ing parties making written contracts to write the whole of their contracts ; while, in mercantile affairs, no mischief can be greater than the uncertainty produced by permitting verbal state- ments to vary bargains committed to writing. But the nature of this ex- planatory evidence renders it peouli- 122 arly dangerous. Those who have heard it must have been struck with the hesitating strain in which it is given by men of business, and their wish to secure the correctness of their answer by referring to the written document. Again, what can be more diificult than to ascertain, as a matter of fact, such a prevalence of what is called a custom in trade as to justify a verdict that it forms a part of every contract ? Debate may also be fairly raised as to the right of binding strangers by customs probably unknown to them ; a conflict may exist between the customs of two different places ; and supposing all these difficulties removed, and the custom fully proved, still it will almost always remain doubtful whether the parties to the individual contract really meant that it should include the cus- tom." Trueman v. Loder, 11 A. & E. 597, 598. To the same effect is an opinion of Judge Story in The Schooner Reeside, 2 Snmn. 567. For an article on the usages of Trade, see 7 Cent. L. J. 958. 1 Hodgson u. Davies, 2 Camp. 532 ; approved of by Ld. Denman in True- man w. Loder, 11 A. & E. 599. 2 Sotilichos V. Kemp, 3 Ex. R. 105. ' Hence where a business document is insensible when read according to tlie ordinary sense of the words used there- CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 959. does not follow, because a usage exists as to the object of a contract, that the contract is meant by the parties to incorporate the usage.i It is within the power of parties to over- ^^^y oyer- ride by consent any usage, no matter how settled. It "^^ ^^^g« ■L , , r. . , , . ,. . ^y consent. may be the usage oi a particular business, for instance, to accept checks given in payment of goods as cash, and hence an agent, on such usage, if the matter be open, may accept checks without incurring liability for the loss of his principal f but if the principal should instruct the agent not to receive checks, -then the agent cannot protect himself by setting up the usage. Wherever, also, it appears from the instrument, either expressly or im- pliedly, that the parties did not mean to be governed by an al- leged custom, evidence of the custom cannot be received.* Thus, if the custom of the country should require the tenant to plough, sow, and manure a certain portion of the demised land in the last year, and should entitle him, on quitting, to receive from the land- lord a reasonable compensation for his labor, seeds, and manure ; evidence of such a custom would be rejected, had the tenant covenanted to plough, sow, and manure, in accordance with the custom, he being paid on quitting for the ploughing.* Nor can in, it is a question for the jury whether the language thereof has not acquired a definite meaning by mercantile usage. Ashworth v. Redford, 9 L. R. C. P. 20. ' Whart. on Cent. § 559. As to usage construing povf er of agents, see infra, § 967. 2 Wharton on Agency, § 210. Evidence has been held admissible in England to prove it to be the common and almost invariable practice of bill- brokers in the city of London, not to in- dorse each bill of exchange which they have discounted for a customer when they re-discount it with their bankers, but to give to such bankers a general guarantee for all bills which they re-dis- count with them. On this proof being made, it was held that when an ac- commodation bill is drawn and accepted for the purpose of raising money for the drawer and the acceptor, the drawer in discounting the bill with bill-brokers in the city of London, has an implied authority from the acceptor to deal with them in the ordinary course of their business, and, consequently, that the bill-brokers have an implied authority from the acceptor to make themselves liable on the bill under their guarantee to their bankers, and are, in the event of the bankruptcy of the acceptor, en- titled to prove against his estate for what they have paid to the bankers in respect of the bill under their guaran- tee. Bishop, ex parte. Fox, in re, 15 Ch. D. 400 ; see infra, § 967. s Button V. Warren, 1 M. & W. 477, per Parke, B. See Clarke v. Roystone, 13 M. & W. 752. * 1 M. & W. 477, 478 ; Webb v. Plummer, 2 B. & A. 746. See the ques- tion discussed by Davis, J., in Barnard V. Kellogg, 10 Wall. 383, citing Thomp- 123 § 961.] THE LAW OP EVIDENCE. [book II. Proof of Bubmisslon to a con- flicting usage is in' admissible. oral proof of custom be adduced to destroy the force of brokers contracts.' § 960. Even parol proof that the parties agreed that a written contract should be subjected to a usage conflicting with the writings is inadmissible, unless fraud or gross con- current mistake be proved ; for this would be contradict- ing the writing by parol evidence, and substituting an inferior and treacherous medium of proof for that which is superior and which is solemnly adopted by the parties as express- ing their purposes.' It is, however, admissible to prove that the course of business between the parties gave to certain terms used by them a distinctive meaning.^ § 961. "Where, also, a dispositive writing employs ambiguous terms, usage can be appealed to, to give a definition of such terms, and to explain, not to vary, the writing. What is meant, is the question, by these terms. And in order to answer this question it is admissible to show a local usage affixing a particular meaning to such ambig- uous terms, provided such evidence be explicatory of the meaning of the parties, and does not contradict the tenor of the instrument.* Parties, preparing a document in a place or trade Otherwise when am- biguous business terms are to be ex- plained. son V. Asbton, 14 Johns. 317 ; Dodd V. Farlow, 11 Allen, 426 ; Frith v. Bar- ker, 5 Johns. 327 ; Woodruff v. Bank, 25 Wend. 673 ; Simmons v. Law, 3 Keyes, 219, and other cases. 1 Infra, § 968. 2 Oelricks v. Ford, 23 How. 49. 3 See infra, 5 961 ; Whart. on Con- tracts, §§ 637 et seq. * Whart. on Cont. §§ 629 et seq. ; Webb u. Plummer, 2 B. & Aid. 746 ; Wigglesworth v. Dallison, 1 Smith's Lead. Cas. 498 ; Spicer w. Hooper, 1 Q. B. 424 ; Chaurand v. Ankerstein, Peake's N. P. Cases, 43 ; Cochran o. Retburgh, 3 Esp. 121 ; Evans v. Pratt, 3 M. & ar. 759 ; Smith v. Wilson, 3 B. & A. 728 ; Roberts v. Barker, 1 Cr. & M. 808 ; Hughes v. Gordon, 1 Bligh, 287 ; Clinan v. Cooke, 1 Soh. & L. 22 ; Buckle V. Knoop, L. R. 2 Ex. 122; 124 Taylor r. Briggs, 2 C. & P. 525 ; Taylor V. Clay, 9 Q,. B. 713 ; Adams v. Royal Mail Steam Packet Co., 5 C. B. (N. S.) 493 ; Leidman v. Schultz, 14 C. B. 38 ; Robertson a. Jackson, 2 C, B. 412 ; Grant v. Paxton, 1 Taunton, 463; Planch^ V. Fletcher, 1 Doug. 521 ; El- ton V. Larking, 8 Bing. 198 ; Hudson v. Ede, Law Rep. 3 Q. B. 412 ; 1 Arnould on Ins. (2d Amer. ed) 71, note ; Insur- ance Co. u. Wright, 1 Wallace, 456, 485; Sturgis v. Cary, 2 Curtis C. C. 382; Barnard o. Adams, 10 How. 270; Barnard v. Kellogg, 10 Wall. 383; Robinson v. U. S., 13 Wall. 363 ; Howe i: Ins. Co., 3 Cliff. 318 ; Moore v. U. S., 17 Ct. of Cls. 17 ; Farrar v. Stackpole, 6 Greenl. 154; Stone v. Bradbury, 14 Me. 185 ; George v. Joy, 19 N. H. 644; Hart V. Hammett, 18 Vt. 127 ; Patch t>. Ins. Co., 44 Vt. 481 ; Murray v. Hatch, CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 961. where certain terms have a customary meaning, may be interpreted as using these terms in the meaning thus customary. Thus, under 6 Mass. 465 ; Eaton v. Smith, 20 Pick. 150; Luce v. Ins. Co., 105 Mass. 297; Howard v. Ins. Co., 109 Mass. 387; Schnitzer v. Print Works, 114 Mass. 123 ; Page v. Cole, 120 Mass. 37 ; Avery V. Stewart, 2 Conn. 69 ; Collins o. Dris- coU, 34 Conn. 43 ; Astor v. Ins. Co., 7 Cow. 202 ; Hinton v. Locke, 5 Hill, 437 ; Hulbert v. Carver, 37 Barb. 62 ; Dana .;. Fiedler, 12 N. Y. 40 ; Markham v. Jaudon, 41 N. Y. 235 ; Dent o. S. S. Co., 49 N. Y. 390 ; Walls v. Bailey, 49 N. Y. 464 ; Lawrence v. Maxwell, 53 N. Y. 21 ; Collender v. Dinsmore, 55 N. Y. 204; Harris v. Rathbun, 2 Abb. (N. Y.) App. 326 ; Smith v. Clayton, 5 Dutch. (29 N. J. L.) 357 ; Hartwell v. Cam- man, 10 N. J. Eq. 128 ; New Jersey Co. V. Boston Co., 15 N. J. Eq. 418 ; Brown V. Brooks, 25 Penn. St. 110 ; Meighen 0. Bank, 25 Penn. St. 288; Carey ■;. Bright, 58 Penn. St. 70 ; McMasters v. R. R., 69 Penn. St. 374; Williams v. Woods, 16 Md. 220 ; Merick v. McNally, 26 Mich. 374; Whittemore v. Weiss, 33 Mich. 348; Prather v. Ross, 17 Ind. 495 ; Myers v. Walker, 24 111. 133 ; Galena Ins. Co. u. Kupfer, 28 111. 332 ; Fruin v. R. R., 69 Mo. 397 ; Hooper u. R. R., 27 Wis. 81 ; Lamb v. Klaus, 30 Wis. 94 ; Johnson v. Ins. Co., 39 Wis. 87 ; Reynolds v. Jourdan, 6 Cal. 108 ; Jenny Lind Co. v. Bower, 11 Cal. 194 ; Drake v. Goree, 22 Ala. 409 ; Cowles v. Garrett, 30 Ala. 341 ; Soutier v. Keller- man, 18 Mo. 509 ; Taylor o. Sotolingo, 6 La. An. 154. See, also, Moran v. Prather, 23 Wall. 499 ; citing Seymour V. Osborne, 11 Wall. 546. "Evidence may be given of a cus- tom or usage in explanation and appli- cation of particular words or phrases, and to aid in the interpretation of the contract, but not to derogate from the rights of the parties, or to import into the contract new terms and conditions, or vary the legal effect of the transac- tion." Allen, J., Lawrence v. Max- well, 53 N. Y. 21. " In Barnard v. Kellogg, 10 Wallace, 383, this court decided that proof of a custom or usage Inconsistent with a contract, and which either expressly or by necessary implication contradicts it, cannot be received in evidence to affect it ; and that usage is not allowed to subvert the settled rules of law. But we stated at the same time that custom or usage was properly received to ascertain and explain the meaning and intention of the parties to a con- tract, whether written or parol, the meaning of which could not be ascer- tained without the aid of such extrin- sic evidence, and that such evidence was thus used on the theory that the parties knew of the existence of the custom or usage and contracted in re- ference to it. This latter rule is as well settled as the former ; 1 Smith's Leading Cases, p. 386, 7th edition ; and under it the evidence was rightly re- ceived." Davis, J., Robinson v. United States, 13 Wallace, 365. " Mercantile contracts are very com- monly framed in a language peculiar to merchants ; the intention of the par- ties, though perfectly well known to themselves, would often be defeated if the language were strictly construed according to its ordinary import in the world at large. Evidence, therefore, of mercantile custom and usage is ad- mitted, in order to expound it and arrive at its true meaning. Again, in all contracts as to the subject-matter of which a known usage prevails, par- ties are found to proceed with the tacit assumption of those usages ; they com- monly reduce into writing the special 125 § 961.] THE LAW OF EVIDENCE. [book II. a contract to carry a full and complete cargo of molasses from Trinidad to London, evidence has been received to qualify the con- tract by showing that a cargo is full and complete if the ship be filled with casks of the standard size, although there be smaller casks of other produce freighted in the same vessel.* Where a writing promises to pay the " product" of hogs, parol testimony is admissible to prove what such product is ;' and where an Irish corn merchant sends written instructions to hia del credere agent in Lon- don to sell some oats " on his account," parol evidence is admissible on the agent's part, for the purpose of showing that, by the custom of the London corn trade, he is warranted, under these instructions, in selling in his own name.' Where a deed uses the term "north," it is admissible, in explanation of the term, to show a usage to run the courses by the magnetic meridian.* So, though according to the general import of the words " at and from," a policy would attach upon the ship's first mooring in a harbor on the coast ; yet, where these expressions are employed in a Newfoundland policy, they may be explained by evidence of usage to mean, that the risk should not commence till the expiration of the fishing, technically called particulars of their agreement, but omit to specify tliose known usages, which are included, however, as of course, hy mutual understanding ; evi- dence, therefore, of such incidents is receivable. The contract, in truth, is partly express and in writing ; partly implied or understood and unwritten. But in these cases a restriction is es- tablished on the soundest principle, that the evidence received must not be a particular which is repugnant to or inconsistent with the written contract. Merely that it varies the apparent con- tract is not enough to exclude the evi- dence ; for it is impossible to add any material incident to the written terms of a contract without altering its eflFect more or less ; neither in the construc- tion of a contract among merchants, tradesmen, or others will the evidence be excluded because the words are, in their ordinary meaning, unambiguous, 126 for the principle of admission is, that words perfectly unambiguous in their ordinary meaning are used by the con- tractors in a different sense from that4 What words more plain than ' a thou- sand,' 'a week,' 'a day'? Yet the oases are familiar in which ' a thou- sand ' has been held to mean twelve hundred ; ' a week ' only a week dur- ing the theatrical season ; ' a day' a working day. In such cases the evi- dence neither adds to, nor qualifies, nor contradicts the written contract, — it only ascertains it by expounding the language." Per Coleridge, J., Browne V. Byrne, 3 E. & B. 703 ; Powell's Evi- dence, 4th ed. 429. ' Cuthbert v. Gumming, 11 Ex. 405. 2 Stewart v. Smith, 28 111. 397. ' Johnstone o. Usborue, 11 A. & E. 549. * Jenny Liud Co. v. Bower, 11 Cal. 194. CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 961 a. " banking," or of an intermediate voyage.' Evidence of usage, also, is admissible, in a suit on a written contract of sale, to show the meaning of " good, merchantable shipping hay ;"2 on a similar con- tract for boots, to show the meaning of " good custom cowhide ;"' and on a similar contract for a machine to show the meaning of " team."* It has also been held admissible to show that by the usage of parties an inferior kind of palm oil answers to the descrip- tion of "best palm oil;"* and that by the custom of the building trade the words " weekly accounts" refer to regular day work only ;" and that credit for " six or eight weeks" does not necessarily give the whole eight weeks for paymeat for goods.^ So, to explain the meaning of the term with " all faults," evidence is admissible to prove that these terms have a customary meaning in a contract for the sale of goods. ^ § 961 a. It has also been held admissible to admit proof of usage to show that in a contract for " freight," " freight" does not include "hay;"' to show the meaning of the term " dollars ;"'" to show the difiFerence between "comediennes" and " danseuses" in a writ- ten engagement for the services of a dancing girl ;" to determine whether " per square yard," in a contract for plastering, relates to the plastering actually laid on, or to the whole surface of the house to be plastered;'^ to settle the number of hours in a measurement of labor at so much " per day ;"'* to determine the area of mason work covered by the terra of so much " per foot ;"" to determine the meaning of " per thousand" in a contract for furnishing bricks ;"*° ' Vallance a. Dewar, 1 Camp. 503. 518 ; Swett v. Shumway, 102 Mass. See Eldridge v. Smith, 13 Allen, 140. 365 ; Gossler v. Eagle Sugar Refinery, As to proof of misstatements by insur- 103 Mass. 331 ; Boardman v. Spooner, ance agents, see infra, § 1172. 13 Allen, 353, 359. See Shepherd c, 2 Fitch «. Carpenter, 43 Barb. 40. Kain, 5 B. & Aid. 240; Schneider v. 3 Wait V. Fairbanks, Brayt. (Vt.) Heath, 3 Camp. 506. 77. s Noyes v. Canfield, 29 Vt. 79. See ' Granson v. Madigan, 15 Wis. 144. Peisch v. Bickson, 1 Mason, 11. ' Lucas V. Brystow, E., B. & B. 907. ^ Supra, § 948. 6 Myers v. Sari, 3 E. & E. 306. " Baron v. Plaoide, 7 La. An. 229. ' Ashwell V. Retford, L. R'. 9 C. P. ^ Walls v. Bailey, 49 N. Y. 467. -See 20 ; 43 L. J. C. P. 67. Hill v. McDowell, 14 Penn. St. 175. 8 Whitney v. Boardman, 118 Mass. '^ Hinton v. Locke, 5 Hill, 437. 242 ; citing Henshaw v. Robins, 9 Met. " Ford v. Tirrell, 9 Gray, 401. 83 ; Whitmarsh v. Conway Ins. Co., 16 ^ Lowe v. Lehman, 15 Ohio St. 179. Gray, 359 ; Miller v. Steyens, 100 Mass. 127 § 961 a.] THE LAW OF EVIDENCE. [book II. to determine in what way the limit " not less than one foot high" is to be construed in a contract to furnish young trees ;* to show the meaning of " square yards" in a contract for payment by measure- ment ;* to prove by parol the meaning of the words " weeks," used 1 Barton v. MoKelway, 22 N. J. L. 165. ' The authorities as to measurement are well grouped in the following opin- ion : — "The contract between the parties was in writing. By it the plaintiff^ were to furnish the material for the plastering work of the defendant's house, and to do the work of laying it on. The defendant was to pay them for the work and material a price per square yard. Of course, the total of the compensation was to be got at by measurement. But when the parties came to determine how many square yards there were, they differed. The query was, the square yards of what ? Of the plaster actually laid on, or of the whole side of the house, calling it solid, with no allowance for the open- ings by windows and doors I " And it is not to be said of this con- tract, that it was so plain in its terms that there could be but one conclusion as to the mode of measurement, by which the number of square yards of work should be arrived at. It is in this case as it was in Hinton v. Locke, 6 Hill, 437. There the work was done at so much per day. The parties there differed as to how many hours made a day's work. That is, what should be the measurement of the day ? And there, evidence of the usage was ad- mitted, not to control any rule of law, nor to contradict the agreement of the parties, but to explain an ambiguity in the contract. And the proof show- ing a usage among carpenters that the day was to be measured by the Ilapse of ten hours, it was held a valid usage ; 128 and the contract was interpreted in ac- cordance with it. " In Ford v. Tirrell, 9 Gray, 401, the contract was to build the wall of an octangular cellar, at the rate of eleven cents per foot. The only question was as to the mode of measurement. The defendant contended that the inner surface of the wall should be the rule. The plaintiff claimed that an additional allowance should be made for the neces- sary work at the angles to support the building. It was held that the agree- ment as to the compensation was equivocal and obscure, and that it was competent to prove a local usage of measuring cellar walls, in order to in- terpret the meaning of the language, and to ascertain the extent of the con- tract. " So in Lowe v. Lehman, 15 Ohio St. 179, in a contract to furnish and lay up brick at so much per thousand, the con- troversy was as to the proper mode of counting. Evidence of a local usage, to estimate by measurement of the walls, on a uniform rule, based on the average size of brick, making slight addition for extra work and wastage, deducting for openings in wall, but not for openings in chimneys nor jambs, nor for caps, sills, nor lintels, was ad- mitted as not xmreasonable. So, in Barton u. McKelway, 2 Zabriskie (22 N. J.), 165, in a contract to deliver cer- tain trees from a nursery, they were to be not less than one foot high. The dispute was as to the measurement ; and evidence was held competent of a usage in that trade to measure only to the top of the ripe, hard wood and not to the tip of the tree. See, also, Wll- CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 961 «. in a theatrical contract ;* of " months," as meaning calendar months in a charter-party ;" of " days," as meaning working days in a bill of lading;* of " corn,"^ "pig-iron,"« "salt,"' and of similar ex- pressions used in transportation contracts, or in policies of insur- ance.' On the same principle, evidence has been admitted to show that, by usage in the hop trade, a sale of " ten pockets of Kent hops at je5," means £5 per cwt.* So, where goods having been sent to a London packer to prepare for exportation, he acknowledged their receipt " on account of the vendor for the vendee," evidence of usage was admitted to prove that when packers signed receipts in this form, it was their duty not to part with the goods without the vendor's further orders.' Again, where a written contract con- tained a stipulation that a party should " lose no time on his own account, and do his work well, and behave himself in all respects as a good servant," extrinsic evidence was received to show that, by the custom of his trade, such a party was entitled to certain holi- days." In all cases, so it has been ruled, where a word is used which is susceptible of two or more meanings," extrinsic evidence is admissible of the usage or course of trade at the place where the contract is made, or where it is to be carried into effect, to explain or remove such doubt. So, also, where a similar doubt arises as to the lex loci by which such a contract is to be construed, evidence of usage will be received to determine the place. Thus, where the question was whether goods were to be liable to freight according to their weight at the place of shipment, or according to their ex- cox V. Wood, 9 Wendell, 346 ; Grant v. ^ Mackenzie d. Dunlop, 3 Macq. Sc. Maddox, 15M. &W. 737." Folger, J., Cas. H. of L. 26, per Ld. Cran- Walls V. Bailey, 49 N. Y. 467. And worth, C. see, as to measurement, supra, § 947. ^ Journu v. Bourdieu, Park Insur. The topic in the text is considered in 245. . Whart. on Contracts, §§ 630 et seq. ' As to "general average," see Mil- 1 Grant v. Maddox, 15 M. & W. ler . Wilson, 9 CI. & "F. 355 ; 286. Supra, § 961. Castle V. Fox, L. R. 11 Eq. 542 ; Ben- ' Noble v. Kennoway, 2 Doug. 513 ; ham V. Hendricaon, 32 N. J. Eq. 441. so Da Costa v. Edmunds, 4 Camp. 143, See Whart. on Contracts, §§ 930 et seq. per Ld. Ellenborough. Infra, § 1243. Supra, § 954; infra, §§ 1008, 1287. « Trimby v. Vignier, 1 Bing. (N. C.) s Rushford ,.. Hatfield, 7 East, 225 ; 151 ; Clayton „. Gregson, 5 Ad. & El. Bourne r. Gatliff, 3 M. & Gr. 643 ; 11 502 ; De la Vega v. Vianna, 1 Barn. & CI. & F. 45; Barnard v. Kellogg, 10 Ad. 284 ; De Wolf r. Johnson, 10 Wheat. Wall. 383 ; Gray .,. Harper, 1 Story, 367 ; Bank U. S. v. Donally, 8 Pet. 368 ; 574 ; Fabbri u. Ins. Co., 55 N. Y. 133 ; Pope v. Nickerson, 3 Story R. 465 ; Wilson „. Randall, 67 N. Y. 338. See Whart. Confl. of L. 434. further infra, § 971. 130 CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 963. home to the writer.' In the first two classes of cases noticed above, this may be done by showing from the writings or other expressions of the persons charged an adoption of the particular meaning set up.^ When the usage of a trade exists, by which certain words are used in a particular sense, then it is sufficient to show directly or inferentially that the writers belonged to this trade. When the local interpretation of a district is set up, then it must appear that the writer was so identified with the district as to make it probable that he used words in the local sense. § 963. There are, however, cases in which it must be substan- tively shown that the party whose writings are to be construed belonged to the class by whom the contested ueagejg terms were used in the assigned sense. Thus, to recur that of a ° ' . particular to a case already noticed, where a party, founding a class, party charity in the early part of the eighteenth century, had, proved to in the deed of grant, described the objects of her bounty t^e°cil6s° as " godly preachers of Christ's Holy Gospel," and it became necessary to determine, a century afterwards, what persons were entitled to the charity, extrinsic evidence was admitted to show that at the time of the grant a religious sect existed, who applied this particular phraseology to Protestant Trinitarian dissenters, and that the founder was herself a member of such sect.^ So where a term having a general and a technical meaning is used in an instru- ment to which there are several parties doing business in different places, we must inquire first as to the place of business of the party by whom the term is introduced into the contract, and then as to the local interpretation there attached to the terra.'* It stands to reason, also, that a party against whom a usage is offered may prove that he was ignorant of the usage, and could not, therefore, have contracted subject to its conditions.* It has even been said" J Tilleyw. Cook, 103 U. S. 155; Grace * Whart. Confl. of Laws, §§ 435 et V. U. S., 109 U. S. 278 ; Phoenix Co. d. seq. ; Westlake, Priv. Int. Law, § 209 ; Frissell, 142 Mass. 513 ; Harris v. Tnx- Power p. Whitmore, 1 M. & S. 141 ; bridge, 83 N. Y. 92 ; Flatt v. Osborne, Schmidt v, Ins. Co., 1 Johns. R. 249 ; 33 Minn. 98. ShiflF v. Ins. Co., 6 Mart. (N. S.) 629 ; 2 See Ober v. Carson, 62 Mo. 209. Lenox v. Ins. Co., 3 Johns. Cas. 178. 5 Shore v. Wilson, 9 CI. & Fin. 355, = Bourne v. Gatlifif, 3 M. & Gr. 384 ; 580, per Ld. Cottenhan>. See, also, Bottomley u. Forbes, 5 Bing. N. C. 127 ; Att.-Gen. v. Drnmmond, 1 Dru. & Walls v. Bailey, 49 N. Y. 464. War. 358 ; Druramond v. Att.-Gen., 2 « Taylor's Er. § 1077. H. of L. Cas. 837, 857, S. C. on appeal. 131 § 964.] THE LAW OF EVIDENCE. [BOOK II. that if any reason exists for believing that the opposite party will rely upon usage, the evidence on these points may be given by way of anticipation. In support of this view is cited an English case, where the owner of goods brought an action of assumpsit against a carrier by sea for non-delivery of the goods to him at the port of London, and the defendant pleaded that he had delivered them at that port. Under this state of facts it was held first by the Court of Exchequer Chamber,^ and then by the House of Lords,*" that the plaintiff might prove former dealings between himself and the de- fendant respecting the carriage of other goods from the defendant's London wharf to the plaintiif 's place of business ; as such evidence was offered, not for the purpose of extending or narrowing the con- tract, or in any way changing it, but with the sole view of meeting a case which might be made on the other side to establish a custom of delivery at a wharf. The fact that the evidence consisted of in- stances of individual contracts might be open to observation, but the evidence could not be rejected on that ground f and Lord Brougham observed: "A party may properly in this way anticipate objections and introduce evidence of this sort, which, if he delayed to produce at that moment, would afterwards be shut out."* But to bring home the usage of a trade to a person engaged in such trade, it is not necessary that it should be immemorial and universal. It is enough if it be generally adopted in the trade at the time of the particular contract." The proof must go, not to opinion, but to fact.* § 964. Although there were at one time intimations to the con- trary,^ it is now settled that a single witness is suificient to prove a usage so far as to enable the case to go to prove the jury ;* but one witness is not enough to prove usage so as to bind a party who desires notice of it, and who would have had or ought to have taken notice of it if it existed.' 1 Bourne v. GatlifF, 3 M. & Gr. 643, Vallance v. Dewar, 1 Camp. 508 ; Rob- 689 ; 3 Soott N. R. 1 , S. C. ertson v. Jackson, 2 C. B. 412. 2 Ibid. ; 11 CI. & Fin. 46, 49, 69-71 ; « Lewis w. Marshall, 7 M. & Gr. 744. 7 M. & Gr. 850, 865, 866, S. C. ' Wood v. Hickok, 2 Wend. 501 ; ' 11 CI. & Fin. 70, per Ld. Byndhurst, Boardman v. Spooner, 13 Allen, 359. C. ; 7 M. & Gr. 865, S. C. 8 Robinson v. U. S., 13 Wall. 366 ; « n CI. & Fin. 71 ; 7 M. & Gr. 866, Vail v. Rice, 1 Seldeu, 155 ; Bissell v. S- C. Campbell, 54 N. Y. 853. 6 Legh V. Hewitt, 4 East, 154 ; Dalby s Goodall v. Ins. Co., 25 N. H. 169. V. Hirst, 1 B. & B. 224 ; 3 Moore, 536 ; 132 One wit- ness may CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 965. § 965. Of the law merchant, as is elsewhere seen, a court takes judicial notice.^ It is otherwise as to local usages, 1-1 it L • p.,1- K • Usage is to which must be put in proot to the jury as are foreign be proved laws,'' and which do not become customs, so as to have and'must^' the force of law, until accepted as law by the community, be reason- or by the courts acting on proof of the usage. The dis- not eon- tinction between custom and usage is that usage is a fact with the and custom is a law. There can be usage without ^^"f""- custom, but not custom without usage. Usage is inductive, based on consent of persons in a locality.' Custom is deductive, making established local usage a law. There is an important distinction, however, between a domestic local usage as a basis of custom and a foreign law. A foreign law is part of an independent juris- prudence, which is accepted, when proved, without regard to the question how far it harmonizfes with the lex fori. A domestic local usage, on the other hand, will not be accepted if it is unreasonable, or irreconcilable with the lex fori.* If it conflicts either with stat- ute,' or with the common law,* it cannot be sustained. Bat if a business usage be reasonable, and not conflicting with the lex fori, it is enough, in order to adopt 'Such usage as interpretative of a contract, to show that it is fixed and established in the trade with which the business is concerned.'' 1 Supra, § 298. ' Simpson v. Margitson, 11 Q. B. 32, and oases cited supra, § 315. See Whart. on Cont., §§ 630 et seg. ' See Gallup v. Lederer, 1 Hun, 287 ; Cutter v. Waddingham, 22 Mo. 284. , * Hodgson V. Davies, 2 Camp. 536 Fleet V. Murton, L. R. 7 Q. B. 124 Barnard v. Kellogg, 10 Wallace, 383 Farnsworth v. Hemmer, 1 Allen, 494 Mears v. Waples, 3 Houst. 581 Evans v. Wain, 71 Penn. St. 69 ; Glass Co. V. Morey, 108 Mass. 570. That a usage, in order to bring it to bear as that of a trade, must be established, reasonable, and well known, see Dean c;. Swoop, 2 Binn. 72 ; Cope v. Dodd, 13 Penn. St. (1 Harris) 33; MoMas- ters V. R. K., 69 Penn. St. 374 ; Ad- ams V. Ins. Co., 76 Penn. St. 411, and cases cited in Whart. on Agency, §§ 40, 126, 676, 700. And see Pittsburgh Ins. Co. V. Dravo, 2 Weekly Notes of Cases, 194. 6 Smith u. Wilson, 3 B. & Ad. 731 ; Hockin v. Cooke, 4 T. R. 271 ; Doe v. Benson, 4 B. & A. 588. 6 Coxe V. Heisley, 19 Penn. St. (7 Harris) 243 ; Jones u. Wagner, 66 Penn. St. 430 ; Evans v. Wain, 71 Penn. St. 69 ; Randall v. Smith, 63 Mo. 105 ; Dewees v. Lockhart, 1 Tex. 535. ' Lewis V. Marshall, 7 M. & G. 744; Collins V. Hope, 3 Wash. C. C. 149 ; U. S. V. Duval, 1 Gilpin, 372; Chico- pee V. Eager, 9 Met. 583 ; Furness v. Hone, 8 Wend. 247 ; Snowden v. Warder, 3 Rawle, 101 ; Koons v. Miller, 133 § 967.] THE LAW OF EVIDBNCB. [BOOK II. § 966. Unless there be proof of usage, as to the meaning of a term, a judge ought not to leave it to the jury to pro- term'ie fo?^ nouncB on the sense in which the term was used, but court, un- should himself construe the term according to its fixed te proof of legal or popular signification.' Thus, where an auc- usage. tioneer sued for a sum he was to receive by a written contract only if he sold " within two months," it was held that, in the absence of admissible extrinsic evidence, this meant in point of law two lunar months ; and that, unless the context, or the circum- stances of the contract, showed that the parties meant two calendar months, " the conduct of the parties to the written contract alone was not admissible to withdraw the construction of a word therein, of a settled primary meaning, from the judge and transfer it to the jiry.'"' § 967. An agent is authorized to do whatever is usual to enable Y y, T- i him to execute his commission,* though as between him- agent may self and his principal he is liable if he transgress his strued by written instructions.* But as to third parties, the prin- usage. cipal, notwithstanding his private instructions, is bound by the acts of his general agent, so far as such acts are incident to the agency, and the parties privileged by the acts are ignorant of the private limitations.' In subordination to the general rule, how- ever, a power to an agent to sell oil may be limited by proof of usage giving the principal the right to reject vendees of whom he disapproves.* So a power to an agent to sell may be interpreted 3 Watts & S. 271 ; Eyre v. Ins. Co., 5 128 ; Brady v. Todd, 9 C. B. N. S. 592 Watts & S. 116 ; Pittsburgh .,. O'Neill, Bennett v. Lambert, 15 M. & W. 489 1 Barr, 342 ; Helme u. Ins. Co., 61 Schuchardt v. Aliens, 1 Wallace, 359 Penn. St. 107 ; MoMasters v. R. R. Co., Damon v. Granby, 2 Pick. 345 ; Temple 69 Penn. St. 374 ; Carter v. Phil. Coal u. Pomroy, 4 Gray, 128 ; Rogers Co., 77 Penn. St. 286. See Whart. on Kueeland, 10 Wend. 218 ; Nelson v. R, Contracts, §§ 630 e< se?. R., 48 N. Y. 498; Layet u. Gano, 17 1 See Whart. on Contracts, § 631, ,Ohio, 466 ; Cedar Rapids R. R. v. Stew and oases there cited. art, 25 Iowa, 115 ; Smith c. Super 2 Simpson v. Margitson, 11 Q. B. visors, 59 HI. 412; Palmer v. Hatch 32; Powell's Evidence (4th ed.) 427. 46 Mo. 585, and oases cited in Whart ' Whart. on Agency, §§ 126, 134. on Agen. §§ 40, 126, 676. * R. V. Lee, 12 Mod. 514 ; Farmers « Sumner v. Stewart, 69 Penn. St, & Mechanics' Bk. v. Sprague, 52 N. Y. 321. See Hodgson v. Daviea, infra, 605. § 968. " Davidson «. Stanley, 2 M. & G. 134 CHAP, XII.] DOCUMENTS MODIFIED BY PAROL. [§ 968. by usage to mean to sell by warranty or sample.* So it may be admissible to prove a usage by which corn factors in London sell in their own names.^ But usage cannot be proved for the purpose of making the agent of an insurance company agent of the insured, when this is not provided for in the contract.' § 968. The importance of usage, as explanatory of ambiguous writings, is peculiarly illustrated by the evidence given as to the meaning of brokers' memoranda. These mem- expiana- oranda, as is elsewhere shown,* are sufficient to take a brokers' sale out of the statute of frauds ; yet they are singularly ™emo- brief, requiring for their interpretation expansions of meaning which, though now accepted by the courts, were originally proved by usage." Special usages, in reference to the mode of payment on sales made by brokers, have been found by juries and adopted by the courts. Thus, if goods in the city of London be sold by a broker, to be paid for by a bill of exchange, the usage, so found and approved, is for the vendor, at his election, when goods are payable by a bill of exchange, if he be not satisfied with the sufficiency of the purchaser, to annul the contract, provided he take the earliest opportunity of intimating his disapproval ; five days being held not too long a period for making the necessary inquiries.' But, apart from usage, the rule is to hold the broker's signed mem- oranda, if there be such, to be the primary contract between the parties.'' It has also been held that oral proof of the usage of brokers is not admissible to vary the relation of broker and customer under the ordinary contract for a speculative purchase of stock, which is that of pledgor and pledgee.' It was ruled, however, that the parties to such a pledge might provide for the mode of disposing 1 Alexander v. Gibson, 2 Camp. 555 Whart. on Agency, §§ 120, 187, 739 Dingle v. Hare, 7 C. B. N. S. 145 Howard v. Shepherd, L. R. 2 C. P. 148 * Supra, § 75 ; Whart. Agen. § 715 ' See Whart. on Agency, § 696. ^ Hodgson V. Davies, 2 Camp. 536. ' Supra, § 75. On a contract to buy Randall v. Kehlor, 60 Me. 37 ; Morris shares of stock "on margin," evidence V. Bowen, 52 N. H. 416 ; Fay v. Rich- is admissible on behalf of the broker mond, 43 Vt. 25 ; Andrews v. Knee- to show the meaning of the words " on land, 6 Cow. 354. margin." Hatch v. Douglas, 48 Conn. 2 Johnson o. Osborne, 3 P. & D. 11 116 ; S. C. 40 Am. Rep. 154. A. & E. 549. As to usage of bill-brok- « Baker v. Drake, 66 N. Y. 518 ; aff. ers in London, see supra, § 959. Markham v. Jaudon, 41 N. Y. 435. 3 Grace v. Ins. Co., 109 U. S. 278. 135 § 969.] THE LAW OF EVIDENCE. [BOOK II. of the security, and that parol evidence of usage was admissible to show in part what this mode of disposition was.' § 969. It will hereafter be shown that it may be proved by parol f, . that the parties to a contract have agreed to collaterally incidents extend it in a mode not inconsistent with its written mSiV hp ATI— nexedto terms.^ What may be thus done by direct agreement contract. ^^^ ^^ ^^^^ indirectly by force of a usage to which the parties are supposed to have agreed.* Under this rule it is admis- sible to prove by parol " any usage or custom by which incidents not expressly mentioned in any contract are annexed to contracts of that description ; unless the annexing of such incident to such contract would be repugnant to or inconsistent with the express terms of the contract."* Thus to a sale of a horse it is admissible to annex a customary warranty ;* to a shipping contract, a usage as to the mode of engaging and paying crews ;* to negotiable paper, silent in this respect, the incident of customary days of grace f and to a lease, the reservation of ripening crops.* So, where a quan- tity of linseed oil had been sold through London brokers by bought and sold notes, and the name of the purchaser was not disclosed in the bought note, evidence was received of a usage of trade in the city, by which every buying broker who did not, at the date of the bargain, name his principal, rendered himself liable to be treated by the vendor as the purchaser.' Evidence, also, when a party ' Baker v. Drake, supra. Allen, 353 ; Snelling v. Hall, 107 Mass. s Infra, § 1026 ; Whart. on Con- 138 ; Evans v. Wain, 71 Peiin. St. 69. tracts, § 660. « Eldredge v. Smith, 13 Allen, 140. 3 Ashwell V. Retford, L. R. 9 C. P. ' Renner v. Bank, 9 Wheat. 681. 20 ; Bruce u. Hunter, 3 Camp. 467 ; 83 Washb. Real Prop. (4th ed.) Eaton u. Bell, 3 B. & Al. 34 ; Eldredge 392; Wigglesworth v. Dallison, 1 V. Smith, 13 Allen, 140. See Hatton Dougl. 201 ; Adams v. Morse, 51 Me. V. Warren, 1 M. & W. 475, quoted in- 499 ; Baokenstoss v. Stahler, 33 Penn. fra, § 1027. St. 251 ; Baker v. Jordan, 3 Ohio St. « Stephen's Ev. art. 90. 438 ; Bond v. Coke, 71 N. C. 97. See 6 Allen V. Prink, 4 M. & W. 140. 1 Smith's Lead. Cas. 300. See, how- See Jones V. Bowden, 4 Taunt. 847; ever, Wintermute v. Light, 46 Barb. Randall v. Kehlor, 60 Me. 37. But a 283. usage cannot be annexed inconsistent s Humfrey v. Dale, 26 L. J. Q. B. with the contract, nor conflicting with 137 ; 7 E. & B. 266, S. C. ; Dale v. the obligations of the parties imposed Humfrey, 27 L. J. Q. B. 390 ; E. B. & by the law, unless mutual mistake be E. 1004 ; S. C. in Ex. Ch. See Allan proved. Boardman t. Spooner, 13 v. Sundius, 1 H. & C. 123 ; Fleet 0. 136 CHAP. XII.J DOCUMENTS MODIFIED BY PAROL. [§ 970. contracts in the body of a charter party as " agent," is admissible to show that by custom such person is personally liable if he does not disclose the name of his principal in a reasonable tiqje.^ In suits on written contracts of hiring, also, it has been held admissible, as we have seen, to prove a custom that the servant should have certain holidays ;* and that the contract should be defeasible on giving a month's notice on either side.^ It has also been held, when mining shares were sold upon the terms that they should be paid for " half in two, and half in four months," but the contract was silent as to the time of their delivery, that in an action against the purchaser for not accepting and paying for the shares, evidence was admissible of a usage among brokers, that on contracts for the sale of mining shares, the vendor was not bound to deliver them without contemporaneous payment.* It may* be also shown by parol that a heater and gas-fixtures were to pass to the purchaser of a house under a written agreement in which no mention was made of such articles." It has even been held admissible to attach to bought and sold notes the incident of a sale by sample.' Inci- dents, .also, in extension of a contract, may be proved by parol." § 970. Such incidents, however, must not conflict with the writing to which they are applied.' Thus, it has been held that g^j. ^^^ a parol reservation of future crops upon the land, ready when con- fer harvest, is void when repugnant to a deed which with passes the grantor's entire estate in the land.' ^" "^" Murton, L. R. 7 Q,. B. 126 ; Southwell u. Bowdltch, L. R. 1 C. P. D. 100 ; S. C. in Ct. of App. 45 L. J. C. P. 630. 1 Hutchinson u, Tatham, L. R. 8 C. P. 482. 2 R. V. Stoke-upon-Trent, 5 G. B. 303. Supra, § 961a. ' Parker v. Ibbetson, 4 C. B. (N. S.) 348. < Field V. Lelean, 30 L. J. Ex. 168, per Ex. Ch. ; 6 H. & N. 617, S. C. ; overruling Spartali v. Benecke, 10 Com. B. 212. See Godts v. Rose, 17 Com. B. 229. See, also, Bywater v. Richardson, 1 A. & E. 508 ; 3 N. & M. 748, S. C. ; Smart v. Hyde, 8 M. & W. 723 ; and Foster v. Mentor Life Assur. Co., 2 E. & B. 48. See § 968. ^ Heysham o. Dettre, 89 Penn. St. 506. 5 Cuthbert v. Gumming, 11 Ex. R. 405 ; Lucas v. Bristow, E. B. & E. 907. See Syers v. Jonas, 2 Exch. 111. ' Infra, § 1026. 8 Cent. R. R. v. Anderson, 58 Ga. 393 ; I. & G. N. R. R. v. Gilbert, 64 Tex. 536. 9 Brown i>. Thurston, 56 Me. 127 ; Austin V. Sawyer, 9 Cow. 40 ; Wilkins 0. Vashbinder, 7 Watts, 378; Evans V. Wain, 71 Penn. St. 69 ; Ring v. Bil- lings, 51 111. 475 ; Wickersham v. Orr, 9 Iowa, 253 ; Bond v. Coke, 71 N. C. 97. 137 § 972.] §971 THE LAW OF EVIDENCE. [book ir. Course of businees admissible' in ambigu- ous cases. Extrinsic evidence, as we have already seen, is admissible to prove, when the language is ambiguous, what the par- ties meant. To such evidence the course of the parties, in dealing with the same subject-matter, is an important contribution.* Thus a usage adopted by the Bridgeport Bank of sending packages of checks once a week to New York by the captain of a steamboat, may indicate, if notice be shown to the party giving the check, an agreement between the parties to take this mode of transmission.* § 972. It is to be remembered that while an expert can give, as a matter of fact, a definition of an obscure term, he can- not be permitted to testify as to a conclusion of law, cov- ering the interpretation of the document.* Thus it has been held^ that to permit an expert to be asked whether it was the duty of tlie builders in a building contract to, put in clutch-couplings, is to allow him to give an opinion covering matters entirely beyond the functions Opinion of expert as to con- struction of document is inadmis- sible, but otherwise to decipher or inter- pret. > Rnshford v. Hatfield, 6 East, 526 ; 7 East, 225 ; Broome's Maxims, 601 ; 1 Phil, on Et. 2d Am. ed. 708, 729 ; Bishop, ex parte, 15 Ch. D. 400 (cited In full supra, § 959) ; Wigram Extrin. Et. 57, 58 ; Boorman u. Jenkins, 12 Wend. 573 ; Barnard v. Kellogg, 10 Wallace, 383; Robinson «. U. S., 13 Ibid. 363; Hearn v. Ins. Co., 3 Cliff. 318-328; Gibson v. Culver, 17 Wend. 305 ; Bourne v. Oatliff, 11 CI. & Fin. 45 ; 6 East, 228, 229, 526 ; Gray v. Harper, 1 Story, 574 ; Clinton u. Hope Ins. Co., 45 N. Y. 460 ; and see particu- larly Bourne r. Gatliff, 3 M. & Gr. 643 ; S. a 11 Cl. & p. 45. " It was competent for the plaintiffs to make clear any ambiguity or indefl- niteness in their application for insur- ance. They could do this by proof of the course of business and dealing be- tween them and the defendant ; Rus- sell Manufacturing Co. v. N. H. St. Boat Co., 50 N. Y. 121 ; 5. C. on sec- ond appeal. May, 1873, 52 N. Y. 657 ; and also (as the one was connected and depended upon the other) by the course 138 of business and dealing with other com- panies, with the knowledge and-concert of the defendant. This did not contra- dict nor vary, by parol, the contract of the parties. Nor did it involve the de- fendant with the business of other com- panies, so as to make it liable for con- tracts with which it had no concern, any further than the course of business and dealing, and the contract of the parlies to this action, contemplated by it and framed upon it, had that effect." Folger, J., Fabbri v. Ins. Co., 55 N. Y. 13:j. 2 Bridgeport Bk. v. Dyer, 19 Conn. 137. ' Whai't. on Contracts, §§ 627 et seq. ; supra, § 435 ; Norment v. Fastnaght, 1 McArthur, 515; Wiuans t'. R. R., 21 How. 88; CoUyer u. Collins, 17 Abb. (N. Y.) Pr. 467 ; Ormsby v. Ihmsen, 34 Penn. St. 462 ; Sanford v. Rawlings, 43 III. 92 ; Collins v. Crocker, 15 III. Ap. 107 ; Monitor v. Ketchum, 44 Wis. 126. So to explain meaning of " ex- port beer bottles." Ottawa Glass Co. V. Gunther, 31 Fed. Rep. 208. CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 973. of a witness, and is error.' An expert, however, may be ad- mitted to decipher or explain figures or terms or abbreviations which an ordinary reader is unable to understand f and to explain technical terms.* In order, therefore, " to ascertain the meaning of the signs and words made upon a document, oral evidence may be given of the meaning of illegible, or not commonly intelligible characters, of foreign, obsolete, technical, local, and provincial ex- pressions ; of abbreviations ; and of common words which from the context appear to have been used in a peculiar sense ;* but evi- dence may not be given to show that common words, the meaning of which is plain, and which do not appear from the context to have been used in a peculiar sense, were in fact so used."* § 973. It may sometimes happen that a court of equity, or a court of law exercising equity powers, may impose upon „ a particular writing, under the circumstances under which dence ad- ... 1 1 n I • 1 1 • missible to it IS brought before the court, an equitable construction, " rebut an at variance with the superficial tenor of the writing.* equity. Thus, as we shall see hereafter, when the purchase-money is paid by A., and the title made out to B., B. may be decreed to be a trustee for A.' In such case, to rebut this equity, it is, from the nature of things, admissible for B. to show that he is, to a greater 1 Clark V. Detroit, 32 Mich. 348. 2 Kell V. Charmer, 23 Beav. 195 ; Gob- let V. Beeohey, 3 Sim. 24 ; Masters a. Masters, 1 P. Wms. 425 ; Norman v. Morrell, 4 Ves. 769 ; Wigram on Wills, 187 ; Stone v. Hubbard, 7 Cush. 595 ; Ullman v. Babcock, 63 Tex. 68. See Supra, § 704 ; infra, § 1003 ; and see State V. Ring, 29 Minn. 78. 5 Loom Co. 0. Higgins, 105 U. S. 580 ; Schmieder v. Barney, 113 U. S. 645 ; Pollen V. Le Eoy, 30 N. Y. 549 ; Col- well V. Lawrence, 38 Barb. 643 ; Col- lender V. Dinsmore, 55 N. Y. 200 ; Bar- ton V. Anderson, 104 Ind. 578 ; Walrath u. Whittekind, 26 Kan. 482 ; Wigram on Wills, 61. See Parke, B., in Shore V. Wilson, 9 CI. & F. 555 ; Tindal, C. J., 9 01. & F. 566 ; Jaqua v. Witham Co., 106 Ind. 545 ; and supra, §§ 435, 937-9, 961 «. * See Barnard v. Kellogg, 10 Wall. 383 ; Seymour v. Osborn, 11 Wall. 546 ; Robinson v. U. S., 13 Wall. 363 ; Moran v. Prather, 23 Wall. 499 ; Farmers' Bank u. Day, 13 Vt. 36 ; Knor V. Clark, 123 Mass. 216 ; Dana u. Fiedler, 2 Kern, 40 ; CoUender o. Dinsmore, 65 N. Y. 206. As to "I. 0. U.," see infra, § 1337 ; Whart. on Contracts, § 639. 6 Stephen's Ev. art. 91, citing Smith V. Wilson, 3 B. & Ad. 728 ; Gorrison v. Perrin, 2 C. B. (N. S.) 681 ; Blaokett V. Royal Exch., 2 C. & J. 244 ; and see, as to customary terms, supra, § 937. 6 See Hurst i'. Beach, 5 Madd. 351 ; Trimmer r. Bayne, 7 Ves. 518. ' Infra, §§ 1035-8. 139 § 974.J THE LAW OF EVIDENCE. [book it. or less amount, the creditor of A.* So where, by two distinct codi- cils, two legacies, of the same amount and in substantially the same terms, are left to the same person, such legacies being presumed* to have been intended as cumulative, on the ground that the sums and the expressed terms of both exactly correspond ;* in such case parol evidence is received to rebut the presumption of mistake and to show that the testator intended both legacies to take effect.* § 974. In the same way parol evidence is received to rebut the presumption that a debt due a legatee is extinguished by a legacy of a greater or less amount." Parol evidence has been also received to rebut the presumption that an advance to a legatee by a parent, or person in loco parentis,^ vi&s intended to operate as an ademption, though only^ro tanto^ of the legacy.' For the same purpose, parol evidence may be received to repel the presumption against double portions, which English courts of equity raise, when a father makes a provision for his daughter by settlement on her marriage, and afterwards provides for her by his will.' It follows, also, that parol evidence is received And so to rebut a re- buttable presump- tion. ' Hall V. Hill, 1 Dm. & War. 114 Williams u. Williams, 32 Beav. 370 Livermore v. Aldrich, 5 Cush. 431 Horn V. Keteltas, 46 N. Y. 609 ; Mc- Ginity v. McGiiiity, 63 Penn. St. 44. 2 See Hubbard v. Alexander, L. R. 3 Ch. D. 798 ; Russell v. Dickson, 4 H. of L. Cas. 293 ; Brennan v. Moran, 6 Jr. Eq. R. N. S. 126 ; Wilson «. O'Leary, Law Rep. 12 Eq. 525, per Bacon, V. C. ; 40 L. J. Ch. 709, 5. C. ; S. C. confirmed by Lord Justices, 41 L. J. Ch. 342. " Tatham v, Drummond, 33 L. J. Ch. 438, per Wood, V. C. ; Tuokey o. Henderson, 33 Beav. 174. * Hurst V. Beach, 5 Madd. 351, 359, 360, per Leach, V. C. ; recognized in Hall V. Hill, 1 Dru. & War. 116, 127, by Sugden, C. 6 Wallace v. Pomfret, 11 Ves. 547; Edmonds v. Low, 3 Kay & J. 318. 6 Taylor's Ev. § 1110 ; citing Ben- ham «. Newell, 24 L. J. Ch. 424, per Romilly, M. R. ; 5. C. nam. Palmer v. 140 Newall, 20 Beav. 32 ; 8 De Gex, M. & G. 74, S. C. ; Campbell u. Campbell, 35 L. J. Ch. 241, per Wood, V. C. ; 1 Law Rep. Eq. 383, S. C. ' Pym .,. Lockyer, 5 Myl. & Cr. 29 ; per Lord Cottenham ; recognized in Suisse V. Lowther, 2 Hare, 434, per Wigram, V. C. See Montifiore v. Gnedalla, 29 L. J. Ch. 65 ; 1 De Gex, F. & J. 93, S. C. ; Ravenscroft v. Jones, 33 L. J. Ch. 482 ; 32 Beav. 669, S. C. ; Watson V. Watson, 33 Beav. 574 ; Pea- cook's Est., in re, 14 L. R. Eq. 238. 8 Trimmer v. Bayne, 7 Ves. 615, per Ld. Eldon ; Hall v. Hill, 1 Dru. & War. 120; Kirk v. Eddowes, 3 Hare, 517, per Wigram, V. C. ; Hopwood u. Hop- wood, 26 L. J. Ch. 292 ; 22 Beav. 428, S. C. ; 29 L. J. Ch. 747, S. C. in Dom. Proc. ; 7 H. of L. Cas. 728, S. C. ; Sohofield <.-. Heap, 28 L. J. Ch. 104. 9 Weall II. Rice, 2 Russ. & Myl. 251, 267 ; Lord Glengall v. Barnard, 1 Keen, 769, 793 ; Hall v. Hill, 1 Dru. & War. 128-131, per Sugden, C, explaining CHAP, XII.] DOCUMENTS MODIFIED BY PAROL. [§ 975. to rebut the rebuttal ,i though, when the presumption is one arising on the face of the writing, not primarily to fortify such presumption.^ It should also be remembered that wherever there is an equitable presumption donee in contrarium prohetur, extrinsic evidence is admissible to rebut the presumption ; but when the presumption arises from the construction of the words of an instrument, qvM words, no extrinsic evidence can be admitted.^ § 975. Another exception to the rule arises from the necessities of the case in actions for libel. In such an action, how „ . . . ' Opinion of are the innuendoes to be proved ? AH the common ac- witnesses quaintances of the parties may know that the plaintiflf is admis- * the person to whom the libel refers. Yet, if parol evi- ^^"''' dence is here inadmissible to explain, no proof of the innuendo could be obtained. Hence, under such circumstances, it is held and limiting the two former oases ; Nevin v. Drysdale, Law Rep. 4 Eq. 517, per Wood, V. C. ; Dawson o. Daw- son, Law Rep. 4 Eq. 504, per Wood, V. C. ; Russell v. St. Aubyn, L. R. 2 Ch. D. 398. See Taylor's Ev. § 1110 ; 7th ed. § 1227. 1 Kirk V. Eddowes, 3 Hare, 517 ; Hall V. Hill, 1 Dru. & War. 121. * See cases cited, and Taylor's Ev., 6tli ed. § 1112, where the author says : " The important case of Hall ■/. Hill, 1 Dru. & War. 94, affords a good illus- tration of this distinction. There a father, upon the marriage of his daughter, had given a bond to the husband to secure the payment of £800 ; part to be paid during his life and the residue at his decease. He subsequently by his will bequeathed to his daughter a legacy of £800 ; and the question was, whether this legacy could be considered as a satisfaction of the debt. Parol evidence of the testa- tor's declaration was tendered to show that such was his real intention, and Lord Chancellor Sugden acknowledged that the evidence, if admissible, was conclusive on the subject. 1 Dru. & War. 112. His lordship, however, finally decided that though the debt was to be regarded in the light of a portion ; Ibid. 108, 109 ; yet as it was due to the daughter's husband, while the legacy was left to the daughter herself, the ordinary presumption against double portions was rebutted by the language of the instrument, or rather, it could not, under the cir- cumstances, be raised by the court ; and the consequence was that the dec- larations were rejected. Indeed, the evidence would have been equally in- admissible in the first instance, on the ground of its inutility, had the ordi- nary presumption arisen ; though, in such case, had the opponent offered parol evidence to show that the testa- tor intended that the debt should not be satisfied by the legacy, the evidence rejected might then have been received with overwhelming effect, to corrobo- rate and establish the presumption of law." ^ Per Wood, V. C, Barrs v. Fewkes, 33 L. J. Ch. 522 ; 2 H. & M. 60 ; citing Coote V. Boyd, 2 Bro. C. C. 321 ; cf. Weal V. Rea, 2 Rusa. & M. 267 ; Powell's Evidence, 4th ed. 406. 141 ^ 976.] THE LAW OF EVIDENCE. [BOOK II. admissible for the plaintiif, in a libel suit, in cases where his name is not mentioned, to introduce witnesses to testify that they knew the parties, and were familiar with the relations existing between them, and that on reading the libel they understood the plaintiff to be the person to whom it referred ; ground being first laid by proving the circumstances of the case.* § 976. Much discussion has been had as to the binding effect of a date upon the writer of a document in which such date neceBsarfi ^^ Stated. If, for instance, in a dispositive document, a part of date is given as that of the dispositive act, it is open to question how far such date is part of the essence of the disposition. Such date, it is argued, is not part of the disposition, so that it binds contractually the writer, but is simply evidence that the act of disposition took place on a particular day. But it may be that time is an essential condition of the validity of the docu- ment ; it may be that the rights of third parties may be affected by the question of the accuracy of the date.* The French Code, in view of the dangers that would accrue if the rights of third parties were affected by dates so entered, provides, that an instrument making a disposition of property is, as to third parties, to be con- sidered as taking effect at the time of its registry, or, in cases of non-registry, of its attestation before the proper functionary.' And where statutory provisions of this kind do not exist, the Roman common law provides, that where the date of a document is material in determining the rights of third parties, such date must be inde- pendently proved by the party setting up the document.* 1 Supra, § 32; Folkhard on Slander, Sayward, 33 Me. 322; Snell r. Snow, 445 ; 2Starkleon Slander, 51 ; 2 Green- 13 Met. 278 ; VanVeohten v. Hopkins, leaf's Ev. § 417 ; Daines u. Hartley, 3 5 Johns. 211 ; and compare Du Bost v. Ex. 209 ; Martin v. Loci, 2 F. & F. Beresford, 2 Camp. 511, cited fully 654 ; Heming v. Power, 10 M. & W. supra, § 253. 569 ; Barnett c.. Allen, 3 H. & N. 376- ' Undoubtedly a party himself, and 9 ; Homer v. Taunton, 5 H. & N. 661 ; those claiming under him, may be Smart v, Blanchard, 41 N. H. 137 ; bound by a solemn assertion of a date. Miller v. Butler, 6 Cush. 71 ; Mix v. But it is otherwise as to third parties. Woodward, 12 Conn, 262; Lindley u. whose rights are thereby compromised ; Horton, 27 Conn. 68; MoLoughlin v. e. j., subsequent 6on(f^rf« purchasers. Russell, 17 Ohio, 475 ; Morgan v. » Code Civil, art. 1328. Livingston, 2 Rich. (S. C.) 573 ; Howe * See Weiske, Rechtslexicon, xi. V. Sender, 58 Ga. 64 ; Russell v. Kelly, 665. 44 Cal. 641. See, however, White v. In Louisiana, an act sous seing prive 142 CHAP. XII.] DOCUMENTS MODIFIED BT PAROL. [§ 977. § 977. In our own law, dates are primd facie presumed to give correctly the time of the execution and delivery of the documents to which they are attached,' though this pre-- heiA%rimd sumption does not extend to third parties.^ The pre- f'^^^*-""^- sumption may be rebutted by proof that the document was exe- cuted on a different day .^ Thus, parol evidence is admissible to show that there was a mistake in the date of a charter-party ,< of a deed,' has no date, against third parties, ex- cept to prove the time when it is pro- duced ; unless the real date is shown by extrinsic evidence. Murray v. Gib- son, 2 La. An. 311 ; Corcoran v. Sheriff, 19 La An. 139. See McGill u. McGill, 4 La. An. 262 ; Hubnall v. Watt, 11 La. An. 57. 1 Smith V, Battens, 1 Moo. & R. 341 ; Anderson v. Weston, 6 Bing. N. C. 296; Sinclair v. Baggaley, 4 M. & W. 312 ; Yorke v. Brown^ 10 M. & W. 78 ; Morgan ... Whitmore, 6 Ex. 726 ; Malpas u. Clements, 19 L. J. Q. B. 435 ; Merrill v. Dawson, 11 How. 375; Smith v. Porter, 10 Gray, 66 ; Costigan <;. Gould, 5 Denio, 290 ; Breck v. Cole, 4 Sandf. (N. Y.) 79 ; People V. Snyder, 41 N. Y. 397 ; Liv- ingston V. Arnoux, 56 N. Y. 518 ; Ellsworth V. R. R., 34 N. J. L. 93 ; Claridge v. Klett, 15 Penn. St. 252; Glenn v. Grover, 3 Md. 212 ; Williams V. Woods, 16 Md. 220; Meadows v. Cozart, 76 N. C. 450 ; Abrams v. Pom- eroy, 13 111. 133 ; Chiokering v. Failes, 26 111. 507 ; Savery v. Browning, 18 Iowa, 246 ; Dodge v. Hopkins, 14 Wis. 630. See Whart. on Contracts, § 678. As to impossible date, see Davis v. Loftin, 6 Tex. 489. z See Sams r. Rand, 3 C. B. (N. S.) 442; Baker v. Blackburn, 5 Ala. 417. Infra, § 1312. ' Steele o. Mart, 4 B. & C. 273 ; Reffell V. Reffell, 1 P. & D. 139 ; Butler V. Mountgarrett, 7 H. of L. Cas. 633 ; Sinclair v. Baggaley, 4 M. & W. 312; Cooper V. Robinson, 10 M. & W. 694 ; Edwards v. Crook, 4 Esp. 39 ; Anderson V. Weston, 6 Bing. (N. C.) 296 ; Sweetzer V. Lowell, 33 Me. 446 ; Bird v. Monroe, 66 Me. 337 ; Fowle v. Coe, 63 Me. 245 ; Cole I.. Howe, 50 Vt. 35 ; Cady v. Eg- gleston , 11 Mass. 282 ; Dyer v. Rich, 1 Met. 180 ; Clark v. Houghton, 12 Gray, 38 ; Goddard o. Sawyer, 9 Allen, 78 ; Shaughnessy v. Lewis, 130 Mass. 355 ; Draper v. Snow, 20 N. Y. 331 ; Breck V. Cole, 4 Sandf. 79 ; Ellsworth v. R. R., 34 N. J. L. 93 ; Finney's App., 59 Penn. St. 398 ; Serviss v. Stockstill, 30 Ohio St. 418 ; Abrams v. Pomeroy, 13 111. 133 ; Meldrum v. Clark, 1 Morris, 130 ; Cook C-. Knowles, 38 Mich. 316 ; Dodge V. Hopkins, 14 Wis. 630 ; Stockham v. Stockham, 32 Md. 196 ; Perrin v. Broadwell, 3 Dana (Ky.), 596 ; Kimbro t. Hamilton, 2 Swan, 190 ; Pressly v. Hunter, 1 Speers, 133 ; MoCrary v. Caskey, 27 Ga. 54 ; Mil- ler V. Hampton, Ala. Sel. Cas. 357 ; McComb u. Gilkey, 29 Miss. 146; Gately v. Irwine, 51 Cal. 72 ; Richard- son V. Ellett, 10 Tex. 190 ; Perry v. Smith, 34 Tex. 277. See Clark v. Akers, 16 Kaus. 166. Infra, § 1312. * Hall V. Cazenove, 4 East, 476. 5 Payne v. Hughes, 10 Ex. 430. Hence it has been held admissible to show that the date stated in the in tes- timonium clause of a mortgage of per- sonal property is not its true date, from which the fifteen days limited by Mass. St. 1874, ch. iii., for the recording thereof, begin to run. Shaughnessy I). Lewis, 130 Mass. 355. 143 § 977.] THE LAW OF EVIDENCE. [book II. or of a will,' or of an item in an account.'' So an ambiguous date may be explained by parol.' Where a cootract is silent as to the place of payment, the burden is on the party who seeks to show that the place of payment is other than that which the date of the instrument indicated ;* and where the date of payment is not stated in a lease, it may be fixed by parol evidence showing the situation and surroundings of the parties.' A deed may be proved to have been delivered either before or after the day on which it purports to have been delivered.^ The fact that a deed is recorded at a date prior to the alleged date of its acknowledgment will be imputed to clerical mistake, and will be no ground for rejecting or discrediting the instrument.^ So far as concerns the question of the applicatory law the date of place in a document may be varied by parol.^ 1 Reffell V. ReflFell, L. J. 35 P. & M. 121 ; L. R. 1 P. & D. 139 ; Powell's Evidence (4th ed.), 412. 2 MoEwing V. James, 36 Ohio St. 152. '■> " When it is necessary to deter- mine the date of a paper offered in evi- dence, and the name of the month is so inartificially written that upon in- spection the presiding judge is unable to determine whether it should be read June or January, extraneous evi- dence is admissible to show the true date, and the question is a proper one to be submitted to the jury. So held in Armstrong v. Burrows, 6 Watts, 266. " The same word was in dispute in that case as in this, whether the name of the month in the date of a paper should read June or January ; and the court held that the question was for the jury, and not the court. "This is so upon principle as well as authority. To the court belongs the duty of declaring the law, but it is the province of the jury to weigh evi- dence and determine facts. Whether certain characters were intended to 144 represent one word or another is not a question of law, it is a question of fact ; and when the fact is in dispute, and to ascertain the truth, it is neces- sary to resort to extraneous evidence (circumstantial and conflicting it may be), its ascertainment would seem, upon principle, to belong to the jury, and not to the court. "It is undoubtedly the duty of the court to interpret written contracts. But reading and interpreting are very different matters. A blind man may interpret, but he cannot read. The language must be ascertained before the work of interpretation commences. It does not follow that, because it is the duty of the judge to interpret, it is therefore his duty to read the paper in controversy." Walton, J., Fender- son V. Owen, 54 Maine, 374. See, also, Hearne v. Chadbourne, 65 Me. 202. ' King V. Ruokman, 20 N. J. Eq. 316 ; Whart. Conf. of L., § 411. ^ Hartsell v. Myers, 57 Miss. 135. * Goddard's case, 2 Rep. 4 b. ' Munroe ii. Eastman, 31 Mich. 283. ' Whart. Conf. of L., § 411. CHAP. XII.] DOCUMENTS MODIFIED BV PAROL. [§ 979. § 978. To the rule that dates are to be primd facie assumed to be correct, there is an exception to be noticed. Where ,, ' Exception there is a valid ground to suppose collusion in the to the rule . that dates dating of a paper, then the inference of accuracy as to are primd date so far yields to the inference of falsification as to •^'^^ *'^"®' require the date to be substantively proved.* In cases of adultery, also, when there is suspicion of collusion, and where the case de- pends upon the truthfulness of the dates of certain letters, these dates must be shown independently.^ § 979. The time of execution may be inferred from the circum- stances of the case. Thus, an indorsement or assign- „. ment is inferred to be of the same date as that of the be in- f erred from instrument indorsed or assigned, if there be nothing on circum- the paper to modify the inference.* The post-mark on a ^**°'-'^^' letter, also, has been viewed as primd facie proof of its date of mailing and forwarding ;* and the date of the cancellation of a revenue stamp will be presumed, as an inference of fact, to be that of the delivery of a deed.* If the date is otherwise uncertain, it may be inferred from the contents of an instrument f and where two deeds are executed on the same day, that which the parties in- tended to be prior will be adjudged such.^ Whether an indorse- ment of payment of interest is to be presumed to be of the date it bears is elsewhere discussed.' ' Anderson c. Weston, 6 Bing. (N. 14 Iowa, 516 ; Stewart v. Smith, 28 111. C.) 301 ; Sinclair v. Baggaley, 4 M. & 377 ; Hatch v. Gilmore, 3 La. An. 508 ; W. 318. Rhode ». Alley, 27 Tex. 443. Infra, 2 Trelawney v. Coleman, 2 Stark. § 1312. R. 193 ; Houliston v. Smyth, 2 C. & * R. v. Johnson, 7 East, 68 ; Shipley P. 24. Supra, § 225. o. Todhunter, 7 C. & P. 688 ; New ' Hutchinson v. Moody, 18 Me. 393 ; Haven Bank v. Mitchell, 15 Conn. Parker v. Tattle, 41 Me. 349 ; Burn- 206 ; Callan v. Gaylord, 3 Watts, 321. ham V. Wood, 8 N. H. 334 ; Balch v. See infra, § 1325. Onion, 4 Cush. 559 ; Noxou v. De ° Van Rensselaer v. Viokery, 3 Lan- Wolff, 10 Gray, 343 ; Pinkerton k. sing, 57. Bailey, 8 Wend. 600 ; Thorn v. Wood- ^ Cleavinger v. Reimar, 3 Watts & hull, Anth. (N. Y.) 103; Snyder v. S. 486. Riley, 7 Penn. St. 164 ; McDowell v. ' Barker v. Keete, 1 Freem. 249. Goldsmith, 6 Md. 319 ; Snyder v. Oat- « Supra, § 228 ; infra, §§ 1100 et seq. man, 16 Ind. 265 ; Hayward v. Munger, VOL. II. — 10 145 § 980.] THE LAW OP EVIDENCE. [book II. II. SPECIAL KULES AS TO KECORDS, STATUTES, AND CHARTERS. § 980. Judicial records, in their various forms, are, as is else- where seen, proof of the highest order. They are Records framed under the general direction of courts, by oflScers yari°ed by skilled in the work ; they follow settled precedents, being ^°''^°^' mostly composed of words to which definite meanings have been long attached; they are usually, in litigated cases, scanned by intelligent and experienced counsel ; if they can be up- set by parol, no titles could be safe. Hence, such averments cannot be collaterally impeached by parol.^ Nor can certified copies of records be so impeached.* 1 Infra, § 982 ; 1 Co. Litt. 260 a Glynn v. Thorpe, 1 Barn. & A. 153 Dickson o. Fisher, 1 W. Black. 364 Garrick v. Williams, 3 Taunt. 544 Galpin v. Page, 18 Wall. 365 ; The Acorn, 2 Abbott (U. S.), 434; Sanger 1^. Upton, 91 U. S. 56 ; Boody v. York, 8 Greenl. 272; Ellis v. Madison, 13 Me. 312; Dolloff c. Hartwell, 38 Me. 54 ; Stuart v. Morrison, 67 Me. 549 ; Eastman v. Waterman, 26 Vt. 494; Hunneman v. Fire District, 37 Vt. 40; Hall u. Gardner, 1 Mass. 171; Legg V. Legg, 8 Mass. 99 ; Wellington V. Gale, 13 Mass. 483 ; Sheldon v. Ken- dall, 7 Gush. 217 ; Kelley v. Dresser, 11 Allen, 31 ; Mayhew v. Gay Head, 13 Allen, 129 ; Com. v. Slocum, 14 Gray, 395 ; Capen v. Stoughiou, 16 Gray, 364 ; Richardson u. Hazleton, 101 Mass. 108; Whiting v. Whiting, 114 Mass. 494; O'Shaugnessy a. Baxter, 121 Mass. 515 ; Gorman's case, 124 Mass. 190 ; Brintnall v. Foster, 7 Wend. 103 ; Davis V. Taloott, 12 N. Y. 184 ; Hill v. Burke, 62 N. Y. Ill ; Brown v. Balde, 3 Lans. 283 ; Wallace v. Coil, 24 N. J. L. 600 ; Kennedy v. Wachsmuth, 12 S. & R. 171 ; HoflFman v. Coster, 2 Whart. R. 468 ; Withers v. Livezey, 1 W. & S. 433 ; Coffman v. Hampton, 2 Watts & S. 377 ; McClenahan v. Humes, 25 Penn. St. 75 ; MoMicken v. Com., 58 Penn. St. 213 ; Coxe v. Deringer, 78 Peun. St. 271 ; S. C. 82 Penn. St. 236 Ray V. Townsend, 78 Penn. St. 329 Com. V. Kreager, 78 Penn. St. 477 Burgess v. Lloyd, 7 Md. 178 ; Hoagland V. Schnorr, 17 Ohio St. 30 ; Taylor «. Wallace, 31 Ohio St. 151; State v. Clemens, 9 Iowa, 534; Ney v. R. R., 20 Iowa, 347 ; Sohirmer v. People, 33 111. 276 ; Hobsou «. Ewan, 62 111. 154 ; Moffitt V. Moffitt, 69 111. 641 ; Herring- ton V. McCollum, 73 111. 476 ; Rice ti. Brown, 77 111. 549 ; Robinson v. Fer- guson, 78 111. 538; Lawver v. Lang- hans, 85 111. 138 ; Kemper v. Waverley, 81 111. 278 ; Long i-. Weaver, 7 Jones L. 626 ; Lamothe v. Lippott, 40 Mo. 142 ; McFarlane v. Randle, 41 Miss. 411 ; Taylor v. Jones, 3 La. An. 619 ; Ed- wards V. Edwards, 25 La. An. 200 Thompson v. Probert, 2 Bush. 144 Hickerson v. Blanton, 2 Heisk. 160 May V. Jameson, 11 Ark. 368 ; Wilson V. Wilson, 45 Cal. 399. As to records of towns and school districts, see Eady V. Wilson, 43 Vt. 362. As to impeach- ing judgments, see supra, § 795. As 146 2 Monk V. Corbin, 58 Iowa, 503. CHAP. XII,] ke:okds modified by parol. [§ 980 a. . § 980 a. In the interpretation of a statute the whole context must he taken together.* Even the title and preamble are for this pur- to impeaching returns of officers, see snpra, § 833 a ; infra, § 1118. See Hames v. Brownlee, 71 Ala. 132. In a late Massachusetts case, for instance, the evidence was that real estate, which had been fraudulently- conveyed, was attached in an action against the grantor under the Gen. Sts. c. 123, § 55, and taken on execution, and was described in the officer's re- turn, which set out that the notice of the sale was of land situated upon Union Street. It was ruled by the Supreme Court, that evidence that in the published notice of sale the prem- ises were described as situated on Avon Street was not competent to contradict the return. Sykes v. Keating, 118 Mass. 517 ; citing Chappell v. Hunt, 8 Gray, 427. "In Campbell v. Webster, 15 Gray, 28, it was held that the officer's return was conclusive evidence as to the com- petency of the appraisers, and could not be impeached by showing that one of them was not disinterested. The same principle was recognized in Dooley I). Woloott, 4 Allen, 406, and Hannum V. Tourtellott, 10 Allen, 494. The case of Whitaker v. Sumner, 7 Pick. 551, more closely resembles the case at bar. In that case the notice of the sale pub- lished in the newspaper did not in fact specify any place of sale, but the offi- cer's return stated that he had adver- tised the place of sale. It was held that the return was conclusive, that the equity of redemption passed by the sale, and that the plaintiff, who was a subsequent attaching creditor, could maintain an action against the officer for a false return. The case of Wol- cott V. Ely, 2 Allen, 838, is not in con- flict with these adjudications. That case was submitted upon an agreed statement of facts, in which the parties agreed that one of the appraisers was not disinterested. The court, in the opinion, say : ' It was held in Boston V. Tileston, 11 Mass. 468, that where the parties in an agreed statement of facts agree to a fact decisive of the title, the officer's return, which would have been conclusive evidence upon a trial between them, is not to be re- garded.' This is not in conflict with, but clearly recognizes, the general rule that, in a trial between parties, the officer's return, when used in evidence, is conclusive." Morton, J., Sykes u. Keating, 118 Mass. 519. This rule is applied in Pennsylvania to proceedings by aldermen under the Landlord and Tenant Act ; Wistar v. OUis, 77 Penn. St. 291 ; and to the in- dorsements of approval, by the proper court, of a statutory bond. Leedom v. Lombaert, 80 Penn. St. 381. In Wistar v. Ollis, Mercur, J., said : "To establish fraud or want of juris- diction, the court might have heard facts by depositions ; but not to show an irregularity which contradicted the record. When heard by the court be- low, they do not come regularly before this court, and should be disregarded. Boggs V. Black, 1 Binney, 336 ; Blash- ford V. Duncan, 3 S. & R. 480 ; Cun- ningham ». Gardner, 4 W. & S. 120 ; McMillan v. Graham, 4 Barr, 140 ; 1 De Winton v. Brecon, 26 Beav. 533 ; Com. v. Alger, 7 Cush. 53 ; State V. Commiss., 37 N. J. 228; Com. v. Dnane, 1 Binn. 601 ; Com. v. Montrose, 52 Penn. St. 391 ;' Cochran v. Taylor, 13 Ohio N. S. 382 ; Cantwell v. Owens, 14 Md. 215 ; District v. Dubuque, 5 Clarke, 262 ; Brooks v. Mobile, 31 Ala. 227 ; Ellison v. R. R., 36 Miss. 572 ; Lieber, Pol. Her. oh. v. 147 § 980 a.] THE LAW OF EVIDENCE. [book II. pose to be taken into account.' But the judges are permitted to go outside of the statute to consider the law as it stood before the statute, and the circumstances of its passing, so far as shown by the records of the legislature.^ Mr. Sedg- wick, indeed, says, that " we are not to suppose that the court will receive evidence of extrinsic facts as to the in- tention of the legislature ; that is, of facts which have taken place at the time of, or prior to, the passage of a bill."^ But as the courts will take judicial notice of matters of notoriety, it will not be neces- So as to statutes, charters, and legis- lative jour- nals. Union Canal i-. Kelser, 7 Harris, 134 ; Bedford BlaenOvenCoalCo.!).MoCulloh,59 Md. 403 ; Cowan v. Corbett, 68 Ga. 66. 2 Wilcox »r Emerson, 10 R. I. 270. ' Supra, § 663. ' Crommett v. Pearson, 18 Me. 344; Blaisdell v. Briggs, 23 Me. 123 ; Hew- lett V. Holland, 6 Gray, 418 ; Wood v. Mansell, 3 Blackf. 125 ; see Steele v. Schriker, 55 Wis. 134. 5 Walter v. Belding, 24 Vt. 658 ; Mat- thews V. Westborough, 134 Mass. 555. s Bridgford v. Tuscombia, 16 Fed. Rep. 910. See Long v. Battle Creek, 39 Mich. 323. ' Noble County Comm'rs v. Hunt, 33 Ohio St. 169. ' Brooks V. Claiborne County, 8 Bax- ter, 45. 155 § 988.] THE LAW OF EVIDENCE. [book TI. but as to which it is alleged that parol evidence would show that the points really in issue are essentially different. Or it may be that the record of the former suit exhibits a case different from that on trial, while it is alleged that in point of fact the former case and the present are substantially the same. In either of these relations it is admissible to show by parol what was the cause of action in the former suit, so that its identity or non-identity with that on trial may be proved.' The same rule applies when the object is to prove that a former judgment was entered not on the merits but on tech- nical grounds.' Evidence is also admissible to show the distinctive 1 See supra, §§ 64, 785 ; R. v. Bird, 2 Den. C. C. 94 ; 5 Cox C. C. 20 ; Miles <;. Caldwell, 2 Wall. 35; Russell v. Place, 94 U. S. 606 ; Davis v. Brown, 94 U. S. 423 ; Wilson v. Deen, 121 U. S. 525 ; Frost v. Shapleigh, 7 Greenl. 236 ; Mathews v. Bowman, 25 Me. 157 ; Duulap V. Glidden, 34 Me. 517 ; Torrey V, Berry, 36 Me. 589 ; Lando v, Arno, 65 Me. 405 ; Eastman v. Clark, 63 N. H. 31 ; Perkins v. Walker, 19 Vt. 144 ; Bassett v. Marshall, 9 Mass. 312 ; Par- ker V. Thompson, 3 Pick. 429 ; Pease V. Smith, 24 Pick. 122 ; Com. AUgood v. Blake, L. R. 8 Eq. 160. 169 § 1001.] THE LAW OP EVIDENCE. [book ir. In such cases all the extrin- sic facts are to be considered. name was to be preferred.' This doctrine, however, has been more recently repudiated ;'' and it is now settled that the court will take cognizance of all the facts, and place itself, as nearly as may be, in the situation of the testator at the time of executing the instrument ; and if it can by aid of such circumstances ascertain from the language of the will which of the claimants was intended by the testator, a con- fusion as to names or titles will not be permitted to defeat such in- tent.' But, as has been seen,^ this is inadmissible when the object is to substitute a materially imperfect for a perfect description. § 1000. In England, it has been held in equity that if legacies be given to a specific number of children (e. g., four, .£1,000 being given to each of them), and it turns out that at the date of the will the testator had a greater number of children, the sum awarded, if the estate holds out, will be decreed to each of the children actually so existing." To the rule admitting declarations as to latent ambi- guities there has been proposed a qualification some- what artificial. It has been said that if the description Distribu- tion among children presumed to mean all children . § 1001. When de- scription is only partly of the person or thing be partly applicable and partly to each of inapplicable to each of several objects, though extrin- 1 Camoys v. Blundell, 1 H. of L. Cas. 786, per Parke, B., pronouncing the opinion of the judges. But see Drake V. Drake, 25 Beav. 642 ; 29 L. J. Ch. 850 ; S. C. in Dotn. Proo. ; 8 H. of L. Cas. 172, S. C. 2 Drake v. Drake, 8 H. of L. Cas. 172, 177; Camoys o. Blundell, 1 H. of L. Cas. 778, 786, 792 ; Thomson o. Hempenstall, 7 Eo. & Mar. Cas. 141, per Dr. Lusliington ; 1 Roberts, 783, S. C. ; though see In re Plunkett's Estate, 11 Ir. Eq. R. N. S. 361 ; Col- olough V. Smythe, 14 Ir. Eq. N. S. 127 ; and 15 Ibid. 353 ; Garner v. Garner, 29 Beav. 116 ; Gillett v. Gane, Law Rep. 10 Eq. 29 ; 39 L. J. Ch. 818, S. C. Wool- verton, in re, L, R. 7 Ch. D. 197 ; cited supra, § 996. ' Doe u. Huthwaite, 3 B. & A. 630 ; Doe V. Hisoooks, 5 M. & W. 368 ; Blundell i>. Gladstone, 11 Sim. 467, 170 485-488 ; 1 Phill. 279, 282, 283, S. C. ; 1 H. of L. Cas. 778, nom. Camoys v. Blundell ; Bernasooui v. Atkinson, 10 Hare, 345 ; Charter v. Charter, L. R. 7 H. L. 364 ; Hodgson ». Clarke, 1 De Gex, F. & J. 394, reversing S. C. Rep. 1 Giff. 139 ; Re Gregory's Settl. & Wills, 34 Beav. 600 ; Re Noble's Trusts, 5 I. R. Eq. 140; Re Feltham's Trusts, 1 Kay & J. 518 ; Kilvert's Trusts, in re, L. R. 7 Ch. Ap. 170, reversing S. C. L. R. 12 Eq. 183 ; Wolverton Estates, L. R. 7 C. D. 197 ; Leonard v. Davenport, 58 How. N. Y. 384 ; Hawkins v. Gar- laud, 76 Va. 149. And see particularly Ryall V, Hannam, 10 Beav. 638. * Supra, § 994. » Daniell v. Daniell, 4 De Gex & Sm. 337 ; Lee v. Pain, 4 Hare, 249 ; Scott V. Fenoulhett, 1 Cox Ch. R. 79 ; Yeates V. Yeates, 16 Beav. 170. CHAP. XII.] WILLS MODIFIED BY PAROL. [§ 1003. sic evidence of the surrounding circumstances may be several ob- received for the purpose of ascertaining to which the deciaVL^" language applies, evidence of the writer's declarations teuTare'ta- of intention in this respect cannot be received.' admissible. § 1002. To solve latent ambiguities as to property, proof of ex- trinsic facts, including the testator's declarations, is always proper ; as in such case the effect of the evidence is not to vary but to apply the will.^ And under this head falls proof of the testator's usage in giving parti- cular names to certain portions of his estate.* § 1003. Abbreviations of figures in a will may be explained by parol.* Thus, where a testator bequeathed to his chil- dren the sum of I. X. X., and 0. X. X., parol evidence Abbrevia- ' ' r^ ^ tions can was received to the effect that the testator, in his busi- be thus ex- ness as a jeweller, had used the ciphers in dispute to in dicate respectively jGIOO and ^200.* Evidence admissible as to latent ambigui- ties. plained. 1 Doe 1". Hlscocks, 5 M. & W. 363. See, also, Drake v. Drake, 3 H. of L. Cas. 172 ; Douglass v. Fellows, 1 Kay, 114 ; Bernasconi v. Atkinson, 10 Hare, 345 ; overruling Thomas v. Thomas, 6 T. R. 677; Stinger u. Gardner, 27 Beav. 35 ; 5. C. 41 De Gex & J. 468 ; Lewis V. Douglass, 14 R. I. 604 ; Tay- lor V. Marvis, 90 N. C. 619 ; Stephen's Evidence, 162; Taylor's Ev. § 1109. See supra, §§ 997 S. 2 Supra, § 942 ; Doe v. Martin, 4 B. & Ad. 785, per Parke, J. ; Doe v. Burt, 1 T. R. 704, per Buller, J. ; Castle v. Fox, 11 Law Rep. Eq. 542 ; 40 L. J. Ch. 302, S. C. ; Webb v. Byng, 1 Kay & J. 580 ; Doe v. Ld. Jersey, 1 B. & A. 550 ; S. C. in Dom. Proc. 3 B. & C. 870; Herbert v. Reid, 16 Ves. 481; Okeden v. Clifden, 2 Russ. 300 ; Aid- rich V. Gaskill, 10 Cnsh. 155 ; Melcher u. Chase, 105 Mass. 125 ; Cleverly v. Cleverly, 124 Mass. 314 ; Spencer v. Biggins, 22 Conn. 521 ; Crosby v. Ma- son, 32 Conn. 482 ; Dunham v. Averill, 45 Conn. 61 ; Benham v. Hendrickson, 32 N. J. Eq. 441 ; Domest. Miss. Ap- peal, 30 Penn. St. 425 ; Warner v. Miltenberger, 21 Md. 264; Young v. Twigg, 27 Md. 620 ; Ashworth v. Carle- ton, 12 Ohio St. 381 ; Hopkins u. Grimes, 14 Iowa, 73 ; Kinsey v. Rhem, 2 Ired. L. 192 ; McCall v. Gillespie, 6 Jones L. 533 ; Clements v. Hood, 57 Ala. 459 ; Riggs v. Myers, 20 Mo. 239 ; Creasy a. Alverson, 43 Mo. 13 ; Jones V. Dove, 7 Oregon, 467. » Supra, §§ 954, 962 ; Castle c. Fox, L. R. 11 Eq. 542 ; Benham u. Hendrick- son, 32 N. J. Eq. 441. * See supra, §§ 704, 972. « Kell V. Charmer, 23 Beav. 195. As an illustration of the admissibil- ity of parol evidence going to show to which of several objects an ambiguous testamentary expression applies, may be cited an interesting English case (Goblet V. Beechey, 3 Sim. 24), where the controversy turned on the word " mod," as used in the following codicil of the distinguished sculptor, Nolle- kens : " In case of my death, all the marble in the yard, the tools in the shop, bankers, mod tools for carving," etc., " shall be the property of Alex. Goblet." The plaintiff contended that 171 1004.J THE LAW OP EVIDENCE. [book II. Testator's own writ- ing admia- sible among ex- trinsic facts. § 1003 a. Wherever extrinsic facts are admissible, the testator's writings may be included among such facts. Thus, where a testator directed in his will that all moneys which he had advanced or might advance to his children, " as will appear in a statement in my handwriting," should be brought into hotchpot, the court, in addition to other extrinsic evidence of the nature and amount of the ad- vances, admitted an unattested document, which, after the date of the will, had been drawn up by the testator, with the apparent view of furnishing a guide to his trustees on the subject.^ On the same principle, proof of extrinsic facts will be admitted to identify an imperfectly executed testamentary paper, if the object be to incor- porate that document with a duly attested codicil, which refers in general terms to the testator's " last will."" § 1004. We have already seen* that erroneous particulars in a description of property can be rejected when an object can be found answering justly and naturally to the body of the description. This rule is frequently applied to wills.^ Thus, where a testator has devised to certain Erroneous surplusage may be re- jected. the word meant " models ;" the de- fendant, who was the executor, urged that either it was an abbreviation for "moulds," or that it should be read in connection with the words which immediately followed it, and meant "modelling tools for carving." On the one hand, it was proved that the legatee had been in the testator's ser- vice for thirty years, and was highly esteemed by him as one of his best workmen ; and statuaries were called to prove that no such tools were known as modelling tools for carving, but that the word ' ' mod' ' would be understood by any sculptor as a simple abbrevia- tion of the word models. On the other hand, the executor showed that the testator's models were rare and curious works of art, which had sold for a large sum, but that all the other articles mentioned in the codicil were of trifling value ; and he further gave in evi- dence, that the testator had a great 172 number of moulds in his possession, which were not specifically disposed of by the will. Reading the codicil by the light of this extrinsic evidence, Vice Chancellor Shadwell came to a decision that the word in question suf- ficiently described the testator's mod- els ; and although this decree was subsequently reversed by Lord Broug- ham, the reversal rested, not on the inadmissibility of any portion of the evidence, but on the ground that the models had been distinctively be- queathed by will to another person. 2 Russ. & Myl. 624 ; Taylor's Ev. § 1083. • Whately v. Spooner, 3 Kay & .T. 542. But see oases cited infra, § 1006. 2 Allen V. Haddock, 11 Moo. P. C. 427. See Almosino, in re, 1 Sw. & Tr. 508. a Supra, § 945. « Anstee ^. Nelms, 1 H. & N. 225 ; Coleman v. Eberle, 76 Penn. St. 197. CHAP. XII.] -WILLS MODIFIED BY PAROL. [§ 1005. legatees jel250, which he described as " part of his stock in the 4 per cent, annuities of the Bank of England ;" and at the date of the will, and thence up to the time of his death, the testator had no such stock, but he had had some money in the 4 per cents, some years before, and had sold it out, and invested the produce in long annuities ; upon proof of these facts being tendered, the master of the rolls admitted the evidence, not, indeed, " to prove that there was a mistake, for that was clear, but to show how it arose ;" and he then held, that as the testator obviously meant to give the lega- cies, but mistook the fund, the only effect of the mistake as ex- plained by the evidence was, that the legacies ceased to be specific, and must consequently be paid out of the general personal estate.' In a subsequent judgment, on a similar state of facts. Lord Lang- dale's conclusions rested on the same grounds. " It is very neces- sary to observe," he said, " that in the case of Selwood v. Mildmay the evidence was received only for the purpose stated by the master of the rolls in his judgment," that is, in order to show how the mistake arose ; " and not, as it has been erroneously supposed,* for the purpose of showing that the testator, when he used the errone- ous description of the 4 per cent, stock, meant to bequeath the long annuitieSj which he had purchased with the produce of the 4 per cent, stock ; and that the result of the case was, not to substi- tute another specific subject in the place of a specific legacy which the will purported to bequeath ; not to substitute the long annuities which the testator had, and did not purport to give, for the 4 per cent, bank annuities which he had not, and did purport to give ;" but simply to render legacies, which were pn'm^/aci'e specific, pay- able out of the general personal estate.* § 1005. On the other hand, if such alleged surplusage be intro- duced by way of exception or limitation, then it cannot be dis- 1 Selwood V. Mildmay, 3 Ves. 306. which last case the lords justices, in 2 In Miller e. Travers, 8 Bing. 262, order to set right what appeared to 253 ; and Doe v. Hiscocks, 5 M. & W. them to be an obvious clerical error, 270. ■ held that the words, "fourth sched- 5 Lindgreen v. Lindgreen, 9 Beav. ule," in a will, should be read as if 363. See, also, Quennell I). Turner, 13 they were "fifth schedule." Taylor's Beav. 240 ; Tann v. Tann, 2 New R. Ev. § 1106. See, also, Ford v. Batley, 412, per Eomilly, M. E. ; and Hunt 23 L. J. Ch. 225 ; Coltman v. Gregory, V. Tulk, 2 De Gex, M. & G. 300; in 40 L. J. 362. 173 § 1006;] THE LAW OF EVIDENCE. [BOOK 11. charged, but must operate to defeat the devise, so far as concerns the object of the parol evidence.' So, if there be one as to words object, as to which all the demonstrations in a will are tion or de- true, and another as to -which part are true and part false, Bcnption. ^j^g words of such will shall be viewed as words of true limitation to pass only that object as to which all the circumstances are true.^ To this effect is a ruling as to a devise of " all my mes- suages situate at, in, or near Snig Hill, which I lately purchased of the Duke of Norfolk," where it appeared that the testator had bought of the duke four houses very near Snig Hill, and two at some considerable distance from it, and in a place bearing a differ- ent name. The court held that the four houses «nly passed by the devise, though all the six had been purchased by one conveyance, and the testator had redeemed the land tax upon all by one contract.* So, also, where a testator devised to A. his freehold messuage, farm, lands, and hereditaments, in the county of B., and it appeared that he had a farm in that county, consisting of a mes- suage and 116 acres, the greater part of which was freehold, but a small portion was leasehold for a long term of years at a pepper- corn rent, the court held that as the devise correctly described the freehold, the leasehold part was not included therein, though it was proved that this part waa interspersed with, and undistinguishable from, the freehold, and that the whole farm had always been treated as freehold by the testator.* § 1006. Patent ambiguities cannot generally be resolved by parol ; but as to such ambiguities the will must be regarded as insensible.* 1 Taylor «. Parry, 1 M. & Gr. 623, 577 ; Pedley v. Dodds, 2 Law Rep. Eq. per Maule, J. See supra, § 945. 819. . 2 Doe V. Bower, 3 B. & Ad. 459, 460, * Taylor's Ev. § 1108 ; Stone v. per Parke, .1. ; Morrell v. Fisher, 4 Ex. Greening, 13 Sim. 390 ; Hall v. Fisher, R. 604, per Alderson, B. See, also, 1 Coll. 47; Quennell v. Turner, 13 Boyle V. MulhoUand, 10 Ir. Law, R. N. Beav. 240 ; Evans a. Angell, 26 Beav. S. 150. See supra, § 994. 202. See, also, Gilliat v. Gilliat, 28 ' Taylor's Ev. § 1108 ; Doe v. Bower, Beav. 481 ; Mathews v. Mathews, 4 3 B. & Ad. 453 ; Pogson .;. Thomas, 6 Law Rep. Eq. 278 ; Doe v. Bower, 2 B. Bing. N. C. 337 ; Doe v. Ashley, 10 Q. & Ad. 459, per Parke, J. B. 663 ; Webber f. Stanley, IB Com. B. s Miller v. Travers, 8 Bing. 254; N. S. 698 ; 33 L. J. C. P. 217, S. C. ; Taylor v. Richardson, 2 Drew. 16 ; Smith & Goddard u. Ridgway, 2 H. & Turner v. Savings Inst., 76 Me. 527 ; C. 37 ; S. C. in Ex. Ch. 4 H. & C. St. Luke's Home, etc., v. Soo. for In- 174 CHAP. XII.] WILLS MODIFIED BY PAROL. [§ 1008. Parol evidence, therefore, is inadmissible to prove what Patent am- is meant by a legacy to " ;'" or a legacy to "K., noUo'be to L., to M.,"" etc. resolved by ' ' parol. § 1007. Parol evidence is admissible to establish the ademption or prepayment of a legacv. Thus, in an Eng- Ademption , ow o Q^ le. Skelton, 36 Ind. 302 ; Free v. Meikel, 39 Ind; 318 ; Cain v. Hunt, 41 Ind. 466 ; Good- ell ('. Labadie, 19 Mich. 88 ; Beers ». Beers, 22 Mich. 42 ; Vary v. Shea, 36 Mich. 388 ; Rogers w. Odell, 36 Mich. 411 ; Hunt v. Carr, 3 G. Greene, 581 ; Longhurst v. Ins. Co., 19 Iowa, 354 ; Mather v. Butler, 28 Iowa, 253 ; Bar- thell V. Roderick, 34 Iowa, 517 ; Lar- son e. Burke, 39 Iowa, 703 ; Van Dusen v. Parley, 40 Iowa, 170 ; Lake CHAP. XII.] CONTRACTS MODIFIED BY PAROL. [§ 1019. Confederate currency, if paid before maturity ;' and to insert the words " with interest" in an agreement respecting the purchase- V. Meaoham, 13 Wis. 355 ; Smith u. Jordan, 13 Minn. 264; Guernsey r. Ins. Co., 17 Minn. 104; MoCurdy o. Breathitt, 5 T. B. Men. 232 ; Inskoe v. Procter, 6 T. B. Mon. 311 ; Anderson V. Hutcheson, 4 Litt. (Ky.) 126 ; Coger V. MoGee, 2 Bibb. 321; Harrison u. Howard, 1 Ired. Eq. 407 ; Potter v, Everitt, 7 Ired. Eq. 152 ; Newsom o. Bufferlow, 1 Der. Eq. 379 ; McKay „-. Simpson, 5 Ired. Eq. 452; Peebles v. Horton, 64 N. C. 374; Ferguson v. Haas, 64 N. C. 772 ; Gibson v. Watts, 1 McCord Eq. 490 ; Blakeley v. Hamp- ton, 3 McCord, 469 ; Trout v. Goodman, 7 Ga. 383 ; Reese v. Wyman, 9 Ga. 430; Wyche v. Green, 11 Ga. 159; Ward 17. Camp, 28 Ga. 74 ; Hamilton V. Conyers, 28 Ga. 276 ; Mitchell v. Mitchell, 40 Ga. 11 ; Dever v. Akin, 40 Ga. 423 ; Lane v. Latimer, 41 Ga. 171 ; Alston V. Wingfield, 53 Ga. 18 ; O'Neal V. Teague, 8 Ala. 345 ; Clopton v. Mar- tin, 11 Ala. 187 ; Lockhart v. Cameron, 29 Ala. 355 ; Betts v. Gunn, 31 Ala. 219 ; Barrel! <,-. Hanrick, 42 Ala. 60 ; Johnson v. Crutoher, 48 Ala. 368 ; Hardigree v. Mitchum, 61 Ala. 151 ; Robertson v. Walker, 51 Ala. 484; Harkins's Succession, 2 La. An. 923 ; Angomar u. Wilson, 12 La. An. 857 ; Summers v. U. S. Ins. Co., 13 La. An. 504 ; Davis v. Stern, 15 La. An. 177 ; Cox V. King, 20 La. An. 209; Willis v. Kerr, 21 La. An. 749 ; Mosby v. Wall, 23 Miss. 81 ; Gray u. Roden, 24 Miss. 667 ; Leitsendorfer v. Delphy, 15 Mo. 160 ; Hook v. Craighead, 32 Mo. 405 ; Tesson v. Ins. Co., 40 Mo. 23 ; Campbell V. Johnson, 44 Mo. 383 ; Thomas v. Wheeler, 47 Mo. 363 ; Henning v. Ins. Co., 47 Mo. 425 ; Schwear v. Haupt, 49 Mo. 226 ; Exchange Bank v. Russell, 50 Mo. 531 ; Pierson v. McCahill, 21 Cal. 122 ; Case v. Codding, 38 Cal. 191 ; Price V. Reeves, 88 Cal. 457 ; Gerdes v. Moody, 41 Cal. 335 ; Murray v. Dake, 46 Cal. 644 ; Taylor v. Moore, 23 Ark. 408 ; Williamson o. Simpson, 16 Tex. 436 ; Gammage v. Moore, 45 Tex. 170. See Maha v. Ins. Co., infra, § 1172. That the rule applies to specialties, see Canal Co. u. Ray, 101 U. S. 522, The Pennsylvania practice is thus succinctly stated: "The principles which govern the admission of parol evidence affecting written instruments are well established. It may be re- ceived to explain and define the subject- matter of a written agreement ; Barn- hart V. Riddle, 5 Casey, 92 ; Aldridge V. Eshleman, 10 Wright, 420 ; Gould v. Lee, 5 P. F. Smith, 99 ; to prove a con- sideration not mentioned in the deed, provided it be not inconsistent with the consideration expressed in it ; Lewis !;. Brewster, 7 P. F. Smith, 410 ; to estab- lish a trust ; Cozens v. Stevenson, 5 S. & R. 421 ; to rebut a presumption or equity ; Bank v. Fordyce, 9 Barr, 275 ; Musselman v. Stoner, 7 Casey, 265 ; to alter the legal operation of an instru- ment where it contradicts nothing ex- pressed in the writing ; Chalfant u. Williams, 11 Casey, 212 ; to explain a latent ambiguity ; McDermot v. U. S. Ins. Co., 3 S. & R. 604 ; Iddings v. Id- dings, 7 Ibid. Ill ; and to supply de- ficiencies in the written agreement ; Miller v. Fichthorn, 7 Casey, 252 ; Chalfant v. Williams, supra ; but, as a general rule, it is inadmissible to con- tradict or vary the terms of a written instrument. Hain v. Kalbach, 14 S. & R. 159 ; Barnhart v. Riddle, supra ; Miller v. Fichthorn, supra ; Harbold v. > Meredith v. Salmon, 21 Grat. 762. 191 § 1019.] THE LAW OF EVIDENCE. [book II. money of real estate.* So, where the evidence is clear and un- equivocal, the court may insert the penalty in a bond, where this Kuster, 8 Wright, 392 ; Lloyd v. Far- rell, 12 Ibid. 73 ; Anspach o. Bast, 2 P. F. Smith, 356. In cases of fraud, accident, or mistake, the rule is differ- ent. Where equity would set aside or reform the instrument on either of these grounds, parol evidence is admissible to contradict or vary the terms of the agreement as written. Christ v. Diff- enbach, 1 S. & R. 464 ; Iddings v. Id- dings, 7 Ibid. Ill ; Miller v. Henderson, 10 Ibid. 290 ; Parke v. Chad wick, 8 W. & S. 96 ; Clark v. Partridge, 2 Barr, 13 ; Eenshaw v. Gans, 7 Ibid. 117 ; Rearich u. Swinehart, 1 Jones, 233. But the evidence of fraud and mistake ought to be of what occurred at the execution of the agreement, and should be clear, precise, and indubitable ; Stine v. Sherk, 1 W. & S. 195 ; otherwise it should he withdrawn from the jury ; Miller v. Smith, 9 Casey, 386. Here there is no allegation in either affidavit that the defendants were induced to execute the lease on the faith of the alleged parol agreement, or that it was omitted from the lease by fraud or mis- take. Being incapable of proof, it is the same as if it had never been made, and therefore it constitutes no defence to the action. Hill v. Gaw, 4 Barr, 493. Where parties, without any fraud or mistake, have deliberately put their engagements in writing, the law de- clares the writing to he not only the best, but the only evidence of their agreement, and we are not disposed to relax the rule. It has been found to be a wholesome one ; and now that parties are allowed to testify in their own he- half, the necessity of adhering strictly to it is all the more imperative." Williams, J., Martin v. Berens, 67 Penn. St. 462. In Kostenbader v. Peters, 80 Penn. St. 438, the suit was trespass for occu- pying and cultivating a strip of land. The defendant put in evidence a deed from the plaintiff for a tract of land, the boundaries of which included the land in dispute, though the courses and dis- tances did not. The plaintiff then of- fered to prove that when the deed was drawn she refused to sign it ; and the distances were then numbered, and the parties went to the ground and meas- ured the quantity of land called for by the new distances, and which did not include the land in dispute ; and that the words "more or less" after the quantity of acres in the deed were then stricken out, and A. signed the deed. It was held hy the Supreme Court (re- versing the judgment of the court be- low) that this evidence should have been admitted. " The English rule, " said Paxson, J. , in giving the opinion of the court, " that parol evidence is inadmissible to vary the terras of a written instrument, does not exist in this state. A number of authorities settle the doctrine that in cases of fraud or mistake as to the material facts, parol evidence of what occurred at the execution of the writing is competent to explain the real mean- ing of the Jjarties. As was said by .lustioe Woodward, in Chalfant v. Wil- liams, 11 Casey, 212 : ' We permit a deed absolute on its face to be proved a mortgage ; we receive parol evidence to rebut a presumption or an equity ; to supply deficiencies in the written agreement ; to explain ambiguity in the 192 1 Gump's Appeal, 65 Penn. St. 476. CHAP. XII.] OONTKACTS MODIFIED BY PAROL. [§ 1019. was omitted by mutual mistake, and where an effort is made fraud- ulently to take advantage of the omission.* But it must always be kept in mind that the party calling for the relief must be himself ready to do equity f and must be free from any laches on his part.' A fortiori, he will not be aided if he himself is implicated in the fraud. Thus, one party cannot as against the other party set up that the writing was meant by both parties as a fraud against cred- itors.* Whether there can be this rectification of a contract on merely oral evidence has been doubted in England, there being authorities to the effect that rectification will be refused, when the testimony is exclusively oral, in all cases where the allegation of modification set up by the plaintiff is denied in the answer.* It is subject-matter of writings ; to prevent frauds, and to correct mistakes.' To the same point are Dinltle v, Marshall, 3 Bin. 587 ; Woods v. Wallace, 10 Har- ris, 171 ; Bank v. Fordyce, 9 Barr, 279 ; Kearich v. Swinehart, 1 Jones, 238 ; Barnhart v. Riddle, 5 Casey, 92 ; Mus- selman v. Stoner, 7 Casey, 270." See, also, Beck v. Garrison, 1 Weekly Notes, 809. In another case it was said : — " Nothing is better settled in this state than that not only can the ambi- guities of a written instrument be ex- plained by parol, but it may in the same manner be varied, added to, or even contradicted, where it is shown that but for the oral stipulations made at the time the party affected would not have executed it. The authorities for, as well as the reasons given in support of this doctrine, so abound in our books that to cite the former, or to restate the latter, would be but a waste of time. But, it is said, this corporation was not bound by the declarations of its agents, they having exceeded their authority, and hence it was under no legal obligation to fulfil their under- takings. Grantthis tobe so; but how then can it hold the defendant to his part of the covenant ? This plea would answer an excellent purpose were Caley VOL. II. — 13 seeking to enforce the contract against the company ; but it so happens that the stick is in the other hand. ' If one party be not bound, neither is the other.' Strong, J., in the case of the Railroad Co. v. Stewart, 5 Wr. 59. In this respect a corporation differs no- thing from a natural person ; if it would enforce the contracts of its agents, it must first agree to adopt and be bound by them. In the foregoing we have discussed all the exceptions which we deem material or well taken ; the rest are dismissed without further com- ment." Gordon, J., Caley v. R. R., 80 Penn. St. 363. Under the present English practice, parol evidence of mistake or fraud, while admissible in an action to reform a contract relative to real estate, is not admissible for the purpose of constru- ing it. Caton v. Thompson, 9 Q. B. D. 620— C. A. » State V. Frank, 51 Mo. 98. See Prior V. Williams, 3 Abb. (N. Y.) App. 624. See Grymes v. Sanders, 93 U. S. 55, quoted supra, § 1017. 2 Supra, § 932. 3 Ibid. * Connor v. Carpenter, 28 Vt. 237. 5 Pollock on Con. 452; Davies v. Fitton, 2 Dr. & War. 333 ; Mortimer i;. Shortall, 2 Dr. & War. 363. 193 § 1021.] THE LAW OF EVIDENCE. [book 11. otherwise, however, when the error in the written document is not denied in the answer.* And in this country such evidence has been frequently received, even when the fact of the modification is denied.^ § 1020. Deeds, as well as other contracts, may be reformed under the limitations specified above.' It should, at the same be so re- time, be remembered that the party seeking to reform a '"^™® ■ deed, in a specific particular, " cannot introduce parol evidence of an original parol contract, or terms or stipulations at variance with the other provisions of the written instrument, as to which no fraud, mistake, or surprise is alleged."* § 1021. Courts of equity and courts of law with equity powers, in cases also of concurrent mistake (e. ^., where the common agent of both parties made a mistake in engross- ing an instrument, or where the instrument was concocted on the. basis of a mutual misconception of fact), may refuse to permit such contracts to be enforced, or may admit proof of such mistake as a defence to a suit on the contract, or may decree the reformation of the contract. In such case the party seeking to take advantage of the blunder is virtually guilty of fraud, which will be checked under the limitations already pre- scribed.* Even an erroneous execution, leading to an erroneous Reforma- tion granted in case of concurrent mistake. ' Townsend i\ Stangroom, 6 Ves. 328; Ball V. Story, 1 Sim. & St. 210 ; Druiflf V. Parker, L. R. 5 Eq. 131 ; National ProTincial Bk., ex parte, L. R. 4 Ch. D. 241. 2 See oases cited in prior notes to this section. Canedy o. Maroy, 13 Gray, 373; McMullen t. Fish, 29 N. J. Eq. 610 ; Huss V. Morris, 63 Penn. St. 367 ; Coale V. Merryman, 35 Md. 382 ; Clayton c: Freet, 10 Oh. St. 544, and other oases cited. Wald's Pollock, 452. In Murray V. Parker, 19 Beav. 305, Lord Romilly held that parol evidence was admissi- ble in such cases, " in the same manner as in other cases where parol evidence is admitted to explain ambiguities in a written instrument." ' See cases cited in last section, and Loss V. Qbry, 22 N. J. Eq. 52 ; Coale v. Merryman, 35 Md. 382 ; Brown v. Moly- 194 neux, 21 Grat. 539 ; Hutson v. Fumas, 31 Iowa, 164 ; Van Dongew. Van Donge, 23 Mich. 321 ; Adair v. McDonald, 42 Ga. 506 ; Barfield v. Price, 40 Cal. 535. * McAllister, J., in Emery v. Mohler, 69 111. 227, citing 1 Sugd. on Vend. & P. 161. 5 Bisphara's Eq. 470; Mahaive Bk. „. Barry, 125 Mass. 20. Supra, §§ 856, 904, 933-4, 1019 ; Walsten v. Skinner, 101 U. S. 57 ; Fenwick v. Buff, 1 Mc- Arthur, 107 ; Peterson v. Grover, 20 Me. 363; Nat. Bk. v. Ins. Co., 62 Me. 519 ; Barry v. Harris, 49 Vt. 392 ; Paige V. Sherman, 6 Gray, 511 ; Hartford Ore Co. V. Miller, 41 Conn. 112; McNulty 1/. Prentice, 25 Barb. 204 ; Mageehan V. Adams, 2 Binney, 109 ; Gower v. Sterner, 2 Whart. R. 75 ; Huss ». Mor- ris, 63 Penn. St. 367 ; Mayo v. Dwight, 82 Penn. St. 462 ; Mcintosh v. Saun- CHAP. XII.] CONTRACTS MODIFIED BY PAROL. [§ 1021. sheriff's title, may be thus corrected.' The qualification obtaining in the English chancery, to the effect that, while relief of this class will be granted to a defendant against whom a bill for specific per- formance is brought, it will be refused to a plaintiff seeking execu- tion of a reformed agreement, is not generally recognized in the United States.^ A contract which the parties agreed at the time to treat as of moral and not of legal obligation equity will treat as a nullity, a clear case being shown.' ders, 68 111. 128 ; Robins v. Swain, 68 111. 197 ; Milmine v. Burnham, 76 111. 362 ; Hoard v. Stone, 58 Mich. 578 ; Montgomery v. Shookey, 37 Iowa, 107 ; Larsen v. Burke, 39 Iowa, 703 ; Arbery u. Noland, 2 J. J. Marsh. 421 ; Blan- ohard v. Moore, 4 J. J. Marsh. 471 ; Gofif V. Pope, 83 N. C. 123 ; Burke v. Anderson, 40 Ga. 535 ; Leggettu. Buck- halter, 30 Miss. 421 ; Clauss v. Burgess, 12 La. An. 142 ; Wood v. Steamboat, 19 Mo. 629 ; Mason v. Ryers, 26 Kan. 464 ; Ladd v. Pleasants, 39 Tex. 415 ; Gammage v. Moore, 42 Tex. 170. If a note and a mortgage given to secure it, executed at the same time, do not correspond as to interest, extrinsic evidence is admissible to show which paper expresses the agreement of the parties. Payson v. Lamson, 134 Mass. 593. ' Wardlaw v, Wardlaw, 50 Ga. 544. 2 1 Story's Eq. Jur. § 161 ; Bispham's Eq. § 382. See, however, Elder v. Elder, 1 Fairfield, 80 ; Glass o. Hulbert, 102 Mass. 24 ; Osborn v. Phelps, 19 Conn. 63 ; Miller v. Chetwood, 1 Green Ch. 199 ; Westbrook v. Harbeson, 2 McCord Ch. 112 ; Dennis v. Dennis, 4 Rich. Eq. 307 ; Climer v. Hovey, 15 Mich. 18. Mr. Bisphamsays, §382: "In proper cases of fraud or mistake, a party ought to have the assistance of a chan- cellor in enforcing a written contract with a parol variation," and cites Gil- lespie V. Moon, 2 Johns. Ch. 585 ; Keisselbrack u. Livingston, 4 Johns. Ch. 144 ; Wall v. Arrington, 13 Ga. 88 ; Mosby V. Wall, 23 Miss. 81 ; Philpott V. Elliott, 4 Md. Ch. 273; Moale i>. Buchanan, 11 Gill & J. 314 ; Bradford V. Bank, 13 How. 57. As to evidence in such cases, see infra, § 1033. " "As to the memorandum of Feb. 23, 1869, the evidence is full and con- clusive that it was signed by the hus- band with the understanding that it would not be legally binding, or any- thing more than a moral or honorary obligation, upon either party ; and by the wife after being informed that such was the husband's understanding of its effect, and after being advised by her counsel that it would not legally bind her. In short, both parties signed it with the understanding that they were not bound thereby, except so far as they might feel themselves morally obliged to carry out the intention therein expressed. Evidence of this character, though not competent to control the interpretation of the con- tract, is clearly admissible to show that the contract should be set aside, or treated as of no effect, in equity. , Townshend v. Strangroom, 6 Ves. 328 ; Willan V. Willan, 16 Ves. 72 ; Brad- ford V. Union Bank of Tennessee, 13 How. 57 ; Western Railroad Co. v. Babcook, 6 Met. 346; Glass v. Hul- bert, 102 Mass. 24, 35." Gray, J., 195 § 1021.J THE LAW OF EVIDENCE. [BOOK II. Where the mistake was by one party alone, the remedy is appli- cation to rescind or annul ;* on the ground either that the mistake was induced, or fraudulently taken advantage of, by the other party, or that there was no agreement as to one and the same thing.* The distinction between rectification and rescission is this : re- scission may be maintained on proof of mistake by one party alone, based either on non-consent or fraud. Rectification (or reformation) can only be granted on proof of concurrent mistake. The object of the first is to destroy the contract in toto ; the object of the second is to substitute a real and true contract for a contract shown not to correctly exhibit the intention of the parties. But this can only be by proof that the parties agreed to make such amended contract. A contract is the agreement of two minds to one thing ; there must be proof that the contract thus set up was agreed to by both parties.* By the distinctive practice of Pennsylvania, and other states fol- lowing the same system, there is " an unbroken line of decisions" " permitting parol evidence to be given to show that a part of the actual agreement of the parties was omitted by mistake from the written contract," and such evidence is admissible in an ejectment as an equitable defence.* Where the application is made to reform a contract on the ground of mistake, and the defendant denies the mistake, clear and strong proof is necessary to induce a court to interfere." The mutual mis- Earle v. Rice, 111 Mass. 20. See, 299, and oases cited supra, § 1019 ; and also, Mitchell v. Kintzer, 5 Penn. St. in Wald's Pollock, 453. 216. Where, in the preparation of a deed, > Bispham's Eq. § 191 ; Lyman v. U. there is " by mutual mistake, a failure S., 17 Johns. 377 ; Kevins u. Dunlap, to embody in the deed the actual agree- 33 N. Y. 676 ; Delany v. Rogers, 50 Md. meut of the parties as evidenced by the 524. prior written agreement," a court of 2 "Welles V. Yates, 44 N. Y. 525 ; Ma- equity will decree reformation. El- her V. Ins. Co., 67 N. Y. 285. Infra, liott v. Sackett, 108 U. S. 132, affirm- § 1029. ing Snell v. Ins. Co., 98 U. S. 85, cited 8 Pollock on Cont. 450 ; Fowler v. supra, § 1014. Fowler, 4 De G., G. & J. 250 ; Bentley * Green, J., Hyndman v. Hogsett, V. Mackay, 31 Beav. 151 ; Henkle v. Ill Penn. St. 649. Ex. Co., 1 Ves. Sen. 318 ; Brainerd v. s gupva, §§ 932, 1019 ; infra, § 1033 ; Arnold, 27 Conn. 617 ; Dornan ... R. Whart. on Contracts, §§ 636 et seq. ; R., 5 R. I. 590; Bryce v. Ins. Co., 55 Bradford ». Bradford, 53 N. H. 463; N. Y. 240 ; Mead ». Ins. Co., 64 N. Y. Hudson v. Stockbridge, 102 Mass. 45 ; 453; Cooper v. Ins. Co., 50 Penn. St. Frost «. Brigham, 139 Mass. 43; Board- 196 CHAP. XII.] CONTRACTS MODIFIED BY PAROL. [§ 1022. take must be proved " beyond reasonable doubt."' And a mere mistaken opinion as to value, though common to both parties, is no ground for rescission.' § 1022. It must also be remembered that the admissibility of evi- dence, in cases of fraud or concurrent mistake, for the purpose of reforming a document, depends largely on the aen°e ^^l terms of the document which it is proposed to reform. If admissible the evidence of fraud or mistake goes to the execution of tradict the document, then, as we have seen, it makes no matter what are the terms of the document, for the question is, not modi- fication, but existence.' But it is otherwise when the question is whether the terms of a document were varied by parol, the docu- ment itself, so far as concerns the obligation imposed by its execu tion, continuing in full force. Now it is absurd to suppose that A. and B., after executing a contract for the sale of a house, would agree to take out of the contract all its material parts, and turn it into a contract for the sale of a ship. Even were the statute of frauds not in the way, the court would refuse parol evidence to prove such a change, because (if for no other reason) it is inhe- rently improbable that such a change could have been made ; and, even if it were made, no party can claim in equity to enforce an agreement so negligent. It is otherwise indeed, as we have already seen, when the offer is to prove the rescission of a contract, or its extension, in a mode not incompatible with its tenor. But to change the operative parts of a contract, retaining merely its frame, man v. Davidson, 7 Abb. Pr. (N. S.) Iowa, 64; Mast v. Pearce, 58 Iowa, 439 ; Jackson v. Andrews, 59 N. Y. 244 ; 579 ; Tripp v. Hasoeig, 20 Mich. 254 ; Hill V. Blake, 97 N. Y. 216 ; Hyer u. Murphy v. Dunning, 30 Wis. 296 ; Du- Little, 20 N. J. Eq. 443 ; Morrison v. pree v. McDonald, 4 Desau. Ch. 209 ; Morrison, 6 Watts & S. 516 ; Irwin v. Westbrook v. Harbeson, 2 McCord Ch. Shoemaker, 8 Watts & S.«75 ; Edmond's 112 ; Ryan v. Goodwyn, 1 McMuU. Eq. Appeal, 59 Penn. St. 220 ; Wallace v. 451 ; Bunse v. Agee, 47 Mo. 270 ; State Hussey, 63 Penn. St. 24 ; Monroe v. o. Frank, 51 Mo. 98 ; Makler v. Mc- Behrena, 67 Penn. St. 459 ; Watson- Clelland, 21 La. An. 579. town Car Co. v. Lumber Co., 99 Penn. i Story, Eq. Jur. § 157 ; Whart. on St. 605 ; Gill v. Clagett, 4 Md. Ch. 470 ; Cont. § 208. Potter V. Potter, 27 Ohio St. 84 ; Miner " Sankey «. First Nat. Bank, 78 V. Hess, 47 111. 170 ; Goltra v. Sanasack, Penn. St. 48 ; Ludington v. Ford, 33 53 111. 456; McTucker v. Taggart, 27 Mich. 123 ; Dortie «. Dugas, 55 Ga. 484. Iowa, 478 ; Heaton v. Fryberger, 38 ' See supra, § 931. Iowa, 185 ; Winu v. Murehead, 52 197 § 1022.] THE LAW OF EVIDENCE. [BOOK II. parol evidence will not be received. Thus (fraud in obtaining execution not being shown), it is inadmissible to prove by parol that an assignment was meant as a discharge ;• or that the assign- ment is only for a moiety of what it purports to pass ;" or that it was meant to secure only a portion of the creditors it purported to secure ;' or that an assignment of " store goods" was to carry " store books ;"^ or that " furring for the whole house" in a build- ing contract was only such " furring" as was customary ;* or that a promissory note was simply intended as a receipt.' It is, in fine, not ordinarily competent' to prove by parol that a written contract has been modified by letting into it new provisions, where those provisions are not simply a development, or new application, of the written terms. It is not to be supposed (fraud not being proved) that, if the parties took the trouble to put one contract in writing, they would not take the trouble to put another contract in writing, if they desired ; nor, if a parol contract between them would be binding, is it to be supposed that they would capriciously engraft such new contract on an old written contract with conflicting pro- visions.* On the other hand, parol evidence may be received to show that certain provisions of a written contract, which could have been made by parol, have been waived, and a new parol con- tract substituted, when such new provisions are a reasonable modi- fication of the old, and when it would work a fraud not to sustain the change.* ' Howard v. Howard, 3 Met. 548. . ry, 2 Port. (Ala.) 376. See supra, 2 Durgin v. Ireland, 14 N. Y. 322. § 920. 3 Aldrieh v. Hapgood, 39 Vt. 617. » Infra, § 1026 ; Brock v. Sturdivant, ' Taylor i;. Sayre, 4 Zab. 647 (supra, 12 Me. 81 ; Marshall v. Baker, 19 Me. § 944). 402; Rubber Co. u. Dunklee, 30 Vt. 5 Herriok v. Noble, 27 Vt. 1. 29 ; Flanders v. Fay, 40 Vt. 316 ; Post 5 City Bank v. Adams, 45 Mo. 455, . Byers, 2 Penn. R. 528 ; Parke v. Chadwiok, 8 W. & S. 96 ; Renshaw ». Gans, 7 Barr, 117 ; Bank v. Fordyce, 9 Barr, 275 ; Parrel u. Lloyd, 69 Penn. St. 239; Torrens w. Campbell, 74 Penn. St. 474. "It is also well settled that in a case of a simple contract in writing, oral evidence is permissible to show that by a subsequent agreement the time of performance was enlarged, or the place of performance changed, the contract having been performed ac- cording to the enlarged time, or at the substituted place, or the performance having been prevented by the act of the other party ; or that the agree- ment itself was waived or abandoned. So it has been held competent to prove an additional and suppletory agree- ment by parol; as, for example, where the contract for the hire of a horse was in writing, and it was further agreed by parol that accidents occa- sioned by his shying should be at the risk of the hirer. Le Fevre v. Le Fevre, 4 S. & R. 241, supports the same general rule. Shughart v. Moore, 78 Penn. St. 469." Woodward, J., Malone v. Dougherty, 79 Penn. St. 46. In Lloyd v. Farrel, 2 Weekly Notes, 88 ; 48 Penn. St. 73 ; 69 Penn. St. 239 ; which was a suit by A. (the vendor) for the purchase-money of land, the vendee set up failure of considera- tion on the ground that A. was equi- tably seised only of one-third of the title, having inherited the same from his father equally with his two sisters. In answer to this evidence was offered : (1) Ihat the father had purchased with A.'s money, and at his request ; (2) That the deed to the defendant had been made on the express parol • Leather Co. v. Hieronymous, L. R. 10 Q. B. 10 ; Plevins v. Downing, L. R. 1 C. P. D. 220. . 204 CHAP. XII.] CONTEACTS MODIFIED BY PAROL. [§ 1027. of the contract, or may waive and discharge it altogether. . . . In reference to contracts under seal, it was formerly held, especially in England, that they could not he thus varied. But in the United States the tendency of judicial decision has heen to apply the same rule in this respect to sealed instruments as to simple contracts."' But in this way inconsistencies and repugnancies cannot be worked into the original contract.' § 1027. In conformity with the rule which has been just stated, parol evidence has been received of a parol agreement jjj^gtja. between two indorsers of a note to divide the loss be- tions of . above rule, tween them ;3 oi a parol agreement of an indorser ot a note by which he waives demand and notice ;^ of a parol agreement by an agent that he should receive no compensation ;° of a parol agreement for application of a payment under a written contract ;° of a parol agreement for fixing the time for the performance of a contract ilnder seal, as this does not change the substance of the contract ;^ of a parol agreement as to the obligations of a hold-over tenant ;' of a parol agreement, collateral to a lease, by which the lessor agrees to destroy all the rabbits on a place leased ;' of a parol agreement, collateral to a written bill of sale of furniture, that the vendee shall take up the vendor's acceptance ;"• of a parol agreement, by the vendor of a grocery store, that he would not carry on the business in the same neighborhood ;" of a parol agreement as to the mode of payment ;'^ of a parol agreement by the parties to an indenture of agreement that A. conveyed and war- ^ Phillips v. Preston, 5 How. 278. ranted only his own title. This was ' Sanborn v. Southard, 25 Me. 409 ; held admissible, although the deed Fullerton v. Rundlett, 27 Me. 31. contained the usual warranty. See ' Joannes v. Mudge, 6 Allen, 245. Farrel v. Lloyd, 69 Penn. St. 239. « Forster v. McGraw, 64 Penn. St. 1 C. Allen, J., Hastings v. Lovejoy, 464. 140 Mass. 264. See Munroeu. Perkins, ' Lawrence v. Miller, 86 N. Y. 131; 9 Pick. 298 ; Emery v. Ins. Co., 138 hut see Spence v. Bowen, 41 Mich. 149. Mass. 398. See supra, § 1019. * Atlantic Bank v. Demmon, 139 "Notwithstanding what is said in Mass. 420. some of the old oases, it is now recog- ' Morgan v. GrifBths, L. R. 6 Ex. 70. nized doctrine that the terms of a con- See, however, discussion in Naumberg tract under seal may he varied by a );. Young, 44 N. J. L. 331. subsequent parol agreement." Strong, i" Lindley w. Lacey, 17 C. B. (N. S.) J., Canal Co. v. Ray, 101 U. S. 527. 578. 2 Brady v. Reed, 94 N. Y. 631 ; " Pierce v. Woodward, 6 Pick. 206. .Johnson v. Powers, 65 Cal. 179. '^ Sowers v. Earnhart, 64 N. C. 96. 205 § 1028.] THE LAW OF EVIDENCE. [book II. charter party to use the ship for a period which was to elapse before the charter party attached ;* and of a parol agreement desig- nating the place for carrying into eifect a contract, as to which it is silent.^ To prove such collateral extensions usage may be ap- pealed to.' " It has long been settled that in commercial transac- tions extrinsic evidence of custom and usage is admissible to annex incidents to written contracts in matters with respect to which they are silent. The same rule has also been applied to contracts in other transactions of life, in which known usages have been estab- lished and prevailed ; and this has been done upon the principle of presumption that in such transactions the parties did not mean to express in writing the whole of the contract by which they intended to be bound, but to contract with reference to those known usages."* § 1028. Were a person who signs a deed or other contract able to avoid performing it on the ground that he was mis- taken as to its effect, it would be only necessary for him to omit reading the contract before signing it, in order to be bound or not as he chose." It is the duty of every one executing such a writing to be aware of its contents before signing ; it is against the policy of law to permit those neglecting this duty to benefit by their neglect.* Hence, a mere mistake of fact, such mistake not going to the essence of a contract, will be ordinarily no ground for annulling the contract.' Parol evi- deDce inad- missible to prove uni- lateral mistake of fact. 1 White V. Packin, 12 East, 578 ; Seago V. Deane, 4 Bing. 459. " Cuiumings v. Putnam, 19 N. H. 569 ; Musselman v. Stoner, 31 Penn. St. 265 ; Moore v. Davidson, 18 Ala. 209. ' Supra, J 969 ; Marsh v. Bellew, 45 Wis. 36 ; Bonham v. Craig, 80 N. C. 222. * Per Parke, B., Hatton v. Warren, 1 M. & W. 475. 5 See Whart. on Contracts, §§ 636 et seq. 6 Infra, § 1243. ' Brown v. Allen, 43 Me. 590 ; Young V. McGown, 62 Me. 56 ; Webster u. Webster, 33 N. H. 18 ; Bradley v. An- derson, 5 Vt. 152 ; MoDuffie v. Magoon, 26 Vt. 518 ; Locke v. Whiting, 10 Pick. 279 ; Fitzhugh v. Runyon, 8 Johns. E. 206 375 ; Cameron v. Irwin, 5 Hill N. Y. 272 ; Mills v. Lewis, 55 Barb. 179 ; Pitcher v. Hennessey, 48 N. Y. 415; Jackson v, Andrews, 59 N. Y. 244 ; Boyce v. Ins. Co., 55 N. Y. 240; Cooper V. Ins. Co., 50 Penn. St. 299; Wesley v. Thomas, 6 Har. & J. 24; Watkins v. Stockett, 6 Har. & J. 435 ; Boyce v. Wilson, 32 Md. 122 ; Kearney r. Sascer, 37 Md. 264 ; Harris o. Din- kins, 4 Desau. 60 ; Peques v. Mosby, 15 Miss. 340; Nixon y. Porter, 38 Miss. 401 ; Hathaway v. Brady, 23 Cal. 121 ; Robinsou v. McNeil, 51 111. 225 ; Nelson V. Davis, 40 Ind. 366 ; Barnes v. Bart- lett, 47 Ind. 98; Glenn v. Salter, 42 Iowa, 107 ; Snyder v. Ives, 42 Iowa, 157 ; Ludington v. Ford, 33 Mich. 123 ; Barter v. Christoph, 32 Wis. 248; CHAP. XII.] CONTRACTS MODIFIED BY PAROL. [§ 1029. Evidence, however, is admissible to prove mistake on one side, and fraud on the other,^ or to prove mistake caused even by non- fraudulent misrepresentations.* Thus, an excess of quantity in a conveyance of land may be proved by parol, and damages may be recovered therefor, when the mistake was concurrent, or induced by fraud.* So an action will lie for the value of a deficiency of quan- tity.* It is otherwise when land is sold as containing an approxi- mate area, " be the same more or less."" And it. is admissible to prove that one of the parties was so essentially mistaken as to the subject-matter that there was no consent, and hence no contract.* § 1029. Mistake of law, as is well settled, is no ground for the interposition of a chancellor for the purpose of reforming a contract. Sometimes this conclusion is based on the ^^^^g^ °^ presumption that every one knows the law, and knowing ground for it, cannot, without fraud, set up his subsequent ignorance. It is unnecessary, however, to resort to reasoning so artificial to support a proposition which is a necessary axiom of government." It is sufficient to say that if a party mistaking the law could get rid of a contract which he made under the influence of the mistake, not only would there be very few losing contracts that would not be Schwickerath v. Cooksey, 53 Mo. 75; excess of land, the court said: "The Wade V. Pelletier, 71 N. C. 74 ; Henry «. questions in this case were really ques- Smith, 76 N. C. 311 ; and cases cited tions of fact. There was sufficient evi- supra, § 1019 ; infra, § 1243. See dence to be submitted to the jury of a Eawson v. Lyon, 23 Fed. Rep. 107. promise to pay for the excess contained > Supra, §§ 1019, 1021; Welles v. in the deed, if the survey should he Yates, 44 N. Y. 525. See Bellows v. found to contain a greater quantity of Steno, 14 N. H. 1 75i and cases cited land than was to be sold at the rate of supra, § 1021, as to" mistake in con- $1000 for a single acre. There was tents of document, and § 945 as to also evidence tending to show that fraud in execution. As to reiection of there was a mistake in th« survey, and erroneous particulars, see supra, § 945. that the lines did actually contain an 2 Pollock on Contracts, 400. excess over the quantity intended to 8 Jordan v. Cooper, 3 S. & R. 564 ; be sold and conveyed. These ques- Bank v. Galbraith, 10 Barr, 490 ; Jenks tions were fairly submitted t.o the jury V. Fritz, 7 W. & S. 201 ; Fisher v. Dei- and found in favor of the plaintiff, and bert's Adm'r, 54 Penn. St. 460 ; Bartle therefore becameaground of recovery." V. Vosbury, 3 Grant, 279 ; Schettiger v. * See supra, § 945. Hopple, Ibid. 56. See Tarbell v. Bow- ^ Kreiter v. Bomberger, supra, § 945. man, 103 Mass. 341. In Beck v. Gar- « PoUook on Contracts, 400. Supra, risen, Sup. Ct. of Pennsylvania, 1875, § 1021. 1 Weekly Notes, 309, which was an ' See infra, § 1241. equitable assumpsit to recover for an 207 § 1030.] THE LAW OF EVIDENCE. [book II. got rid of, but a mad spirit of speculation would be generated by the assurance that no venture, no matter how desperate, would bring personal loss. Hence it is that the courts have united in accepting the principle that a contract cannot be reformed because it was entered into under a mistake of law.* If, however, one party- mistakes the law through the other's fraud ; or if the mistake of the one be promoted by the other ; or if the mistake be a mixed one of law and fact, then there may be relief.* Of mutuality of mistake we have a marked illustration in an English case, where the oldest of three brothers divided lands, of which the second brother had died possessed, under the mistaken impression, which was confirmed by a mutual friend of both parties, that land could not ascend. Here relief was granted,* not because there was actual fraud, but because the contract rested on a mistake which the defending con- tracting party had furthered. § 1030. Where from a writing itself it appears that words have Mistake of ^^^^ transposed or erroneously inserted by a clerical form, when error, then this may be corrected on trial, and the writ- obTioue, . .... ,, -jmi- may be ing read according to its intended meaning.* Thus, in correc e . Massachusetts, where S., who in the body of a bond was recited as a surety, signed as a witness, and W., an intended wit- ness, whose name did not appear in the body of the bond, signed as surety in the place where S. should have signed, it was held that parol evidence was admissible to show that this transposition ' See cases cited to § 1028, and see Hunt V. Rousmanler, 8 Wheat. 174 ; Hoover v. Reilly, 2 Abb. (U. S.) 471 ; Freeman v. Curtis, 51 Me. 140 ; Potter V. Sewall, 54 Me. 142 ; Hellish v. Rob- ertson, 25 Vt. 603 ; Dickinson ». Glen- ney, 27 Conn. 104 ; Shotwell v. Murray, 1 Johns. Ch. 612 ; Champlin v. Laytin, 18 Wend. 407 ; Garnar v. Bird, 57 Barb. 277 ; Zane v. Cawley, 21 N. J. Eq. 130 ; Gebb v. Rose, 40 Md. 387 ; Brown v. Armistead, 6 Rand. 594; Barnes v. Bartlett, 47 Ind. 98 ; Heaven- ridge V. Mondy, 49 Ind. 434 ; Goltra v. Sanasact, 53 III. 456 ; Moorman v. Col- lier, 32 Iowa, 138 ; Bledsoe v. Nixon, 68 N. C. 521 ; Thurmond v. Clark, 47 Ga. 500 ; Gwynn v. Hamilton, 29 Ala. 208 233; McMurray v. St. Louis, 33 Mo. 377 ; Smith v. McDougal, 2 Cal. 586. 2 Infra, § 1241 a; Kerr on Fraud and Mistake, 400 ; Cooper v. Phibbs, L. R. 2 H. L. Cas. 149 ; Blakeman v. Blake- man, 39 Conn. 320 ; Wheeler v. Smith, 9 How. 55 ; Whelen's Appeal, 70 Penn. St. 425. ' Lansdown v. Lansdown, cit. 2 J. & W. 205. * See supra, §§ 933, 939, 948 ; Loss V. Obry, 22 N. J. Eq. 52 ; Wheeler u. Kirtland, 23 N. J. Eq. 13 ; Barthell v. Roderick, 34 Iowa, 617 ; Fallon v. Kehoe, 38 Cal. 44 ; Exchange Bk. v. Russell, 60 Mo. 631 ; Moore v. Wingate, 53 Mo. 398 ; Miller ^. Davis, 10 Kans. 541. CHAP. XII.] CONTRACTS MODIFIED BY PAROL. [§ 1031. was a mistake ; and on this evidence S. was held liable as surety.^ So, in the same state, where a contract is agreed to and signed, but a wrong name is inserted by the scrivener at one point in place of the name of one of the contracting parties, this mistake, it has been held, can be rectified by parol.^ As to strangers, this right of correction is always open.' Thus, where a debtor delivered a certificate of stock to his creditor, with power of attorney to trans- fer, as collateral security, it was held that in a contest with another creditor the purchaser might show by parol that the date in the power was entered by mistake, and that the title to the stock passed to the creditor at the time of the delivery of the certificate and the power of attorney.* § 1031. To permit a conveyance, absolute on its face, but virtu- ally in trust, to be enjoyed by the nominal grantee in defiance of the trust, would be a fraud which equity te proved would not tolerate ; and hence courts of equity, when ^ ^^'^° ' such trusts have been fully and plainly established, have treated the grantee as a trustee, and compelled him to execute the trust. It is no bar to the exercise of this jurisdiction that the deed so acted on was one the statute of frauds requires to be in writing. The statute of frauds cannot be used as an instrument of fraud, nor do its terms include cases of this class." The trust, in such ■ case, no statute intervening, may be proved by parol ; and when such is the local practice, equitable remedies of this class can be applied through common law forms : and this principle applies to trusts of personalty as well as of realty.' But such a trust cannot 1 Riohardsou o. Boynton, 12 Allen, sons-in-law certain portions in their 138. own right, parol evidence was held in 2 Brown v. Gilman, 13 Mass. 158 ; Alabama inadmissible, in a common though see Crawford v. Spencer, 8 law procedure, to show that such por- Cush. 418, where evidence -Was refused tions wtre intended to have been given to show that a grantee's name was en- to the sons-in-law in right of their tered by mistake of the scrivener in wives. Moody v. MoCown, 39 Ala. the place of another person, who was 586. See, however, Mitchell v. Kintz- the intended grantee, and who entered ner, 5 Penn. St. 216. on and occupied the land. And as to " See supra, § 923. refusal to correct similar mistakes, see * Finney's Appeal, 59 Penn. St. 398. Jackson v. Hart, 12 Johns. R. 77 ; See infra, § 1078. Jackson v. Foster, 12 Johns. R. 488. ^ Supra, § 903 ; infra, § 1034. Where the sons and sons-in-law of a ° Supra, § 931a ; Price v. Dyer, 17 decedent united In a written agreement, Ves. 356 ; Sprigg v. Bank, 14 Pet. 201 ; one of whose provisions allotted to the Russell v. Southard, 12 How. 139 ; VOL. II.— 14 209 § 1031.] THE LAW OF EVIDENCB. [book II. be established unless on proof that the intervention of the grantee was the result of fraud, accident, mistake, or undue influence on Rhodes v. Farmer, 17 How. 467 ; Bab- cook V. Wyman, 19 How. 289 ; Villa v. Rodriguez, 12 Wall. 323 ; Morgan v. Shinn, 15 Wall. 110 ; Peugh v. Davis, 96 U. S. 332; Andrews v. Hyde, 3 Cliflf. 516 ; Amory v. Laurence, 3 Cliff. 523 ; Jackson o. Lawrence, 117 XJ. S. 679; Baxter v. Willey, 9 Vt. 276; Wing V. Cooper, 37 Vt. 178 ; Hill c. Loomis, 42 Vt. 562 ; Stackpole v. Ar- nold, 11 Mass. 27 ; Flint .,. Sheldon, 13 Mass. 443 ; Flagg v. Mann, 14 Pick. 417 ; Eaton ... Green, 22 Pick. 526 ; Campbell v. Dearborn, 109 Mass. 130 ; McDonough v. Squire, 111 Mass. 219 ; Meohaive Bank u. Barry, 125 Mass. 20 ; Benton t. .Tones, 8 Conn. 186 ; Sheldon u. Bradley, 37 Conn. 324; Gilchrist o. Cunningham, 8 Wend. 641; Van Dusen v. Worrall, 4 Abb. (N. y.) App. 473 ; Despard u. Wall- bridge, 15 N. Y. 378 ; Anthony u. At- kinson, 2 Sweeny, 228 ; Horn v. Ketel- tas, 46 N. Y. 605 ; McMahon v. Maoy, 51 N. Y. 161 ; Mechan v. Forrester, 52 N. Y. 277 ; Carr v. Carr, 52 N. Y. 521 ; Chapman v. Porter, 69 N. Y. 276 ; Matthews v. Sheehan, 69 N. Y. 585 ; Sweet o. Parker, 22 N. J. Eq. 453; Freytag v. Hoeland, 23 N. J. Eq. 36 ; Heister v. Madeira, 3 W. & S. 385 ; Stair V. Bank, 55 Peun. St. 364 ; Oden- baugh V. Bradford, 67 Penn. St. 96; Baisch v. Oakeley, 68 Penn. St. 92 ; Maffit i: Rynd, 69 Penn. s't. 387; Haines v. Thompson, 70 Penn. St. 434 ; Bank v. Whyte, 1 Md. Ch. 636 ; 5. C. 3 Md. Ch. Dec. 508 ; Farrell v. Bean, 10 Md. 217; Dryden v. Hanway, 31 Md. 254 ; Smith v. Parks, 22 Ind. 59 ; Church u. Cole, 36 Ind. 34; Gingz v. Stumpf, 73 Ind. 209 ; Preschbaker v. Feaman, 32 III. 483 ; Fleming u. Mc- Hale, 47 111. 282 ; Latham v. Latham, 47 111. 185 ; Smith v. Wright, 49 111. 210 403 ; Price ./. Karnes, 59 111. 276 ; Swetland u. Swetland, 3 Mich. 482; Holton V. Meighen, 15 Minn. 69; Trucks V. Lindsey, 18 Iowa, 604 ; Kay V. McCleary, 25 Iowa, 191 ; Wilson v. Patrick, 34 Iowa, 362 ; Volaw v. Diehl, 62 Iowa, 676 ; Fairchild v. Rassdall, 9 Wis. 379 ; Wilcox v. Bates, 26 Wis. 465 ; Ragan <,-. Simpson, 27 Wis. 365 ; Broskowitz v. Davis, 12 Nev. 446 ; Ed- rington v. Harper, 3 J. J. Marsh. 353 ; Thomas v. McCormack, 9 Dana, 109 ; Mallory v. Mallory, 5 Bush. 464; Nichols d. Cabe, 3 Head, 93; Turbe- ville V. Gibson, 5 Heisk. 565 ; McDon- ald V. McLeod, 1 Ired. Eq. 221 ; Glis- son ... Hill, 2 Jones Eq. 256 ; Steel o. Black, 3 Jones Eq. 427 ; Elliott v. Max- well, 7 Ired. Eq. 246 ; Moffatt v. Har- din, 22 S. C. 9 ; Brown v. Cave, 23 S. C. 251 ; Lockett v. Child, 11 Ala. 640 ; Brown v. Abell, 11 Ala. 1009 ; Locke V. Palmer, 26»Ala. 312 ; Brantley v. West, 27 Ala. 542 ; Parish v. Gates, 29 Ala. 254 ; Crews v. Threadgill, 35 Ala. 334 ; Bragg u. Massie, 38 Ala. 106 ; Barren v. Hanrick, 42 Ala. 60 ; Ingra- ham V. Grigg, 21 Miss. 22 ; Vasser v. Vasser, 23 Miss. 378 ; Anding v. Davis, 38 Miss. 594; Weathersly v. Weath- ersly, 40 Miss. 469 ; Hogel v. Lindell, 10 Mo. 483 ; Tibeau v. Tibeau, 22 Mo. 77 ; Slowey v. McMurray, 27 Mo. 116 ; Thomas v. Wheeler, 47 Mo. 363 ; Sum- mers V. Ins. Co., 13 La. An. 504 ; Moore u. Wade, 8 Kans. 380 ; Pierce v. Rob- inson, 13 Cal. 116 ; Lodge v. Turman, 24 Cal. 390 ; Case v. Codding, 38 Cal. 457; Henley i'. Hotaliug, 41 Cal. 22; Farmer v. Grose, 42 Cal. 169 ; Anthony V. Chapman, 65 Cal. 73 ; Hanuay v. Thompson, 14 Tex. 142 ; Reeves y. Bass, 39 Tex. 618; Blakemore v. Byrn- side, 7 Ark. 505 ; McCarron v. Cassidy, 18 Ark. 34 ; Chaires v. Brady, 10 Fla. CHAP. XII.] CONTRACTS MODIFIED BY PAKOL. [§ 1032. his part, or that he was using a position assigned him by mistake in order to work a fraud. ^ § 1032. For the same reason, a conveyance absolute on its face may be held, if the proof be clear, to have been taken as merely a security, and will in such case be treated as shown'to^ a mortgage, so far as concerns parties and privies.^ "It ^«^™°'''- 133. In New Hampshire there is a statutory exclusion of such evidence. Lund V. Lund, 1 N. H. 39 ; Kingsley v. Holbrook, 45 N. H. 321. And so in Georgia. 7 Cohb's Dig. 1851, p. 274. In Maine, though resulting trusts may be so proved, for the creating or de- claring of other trusts, writings are necessary. Thomaston v. Stimpson, 21 Me. 195 ; Bryant v. Crosby, 36 Me. 562 ; Richardson v. Woodbury, 43 Me. 206. On the Maine statute we have the following : "1. It is claimed that the estate in Oliver by deed from his father, of October 4, 1846, was in trust. But the deed is in common form, and it discloses no trust. Now, by the statutes of this state, all trusts must be ' created or declared by some writing signed by the party or his at- torney,' except those 'arising or re- sulting by implication of law.' R. S. c. 73, § 11. The conversations and intentions of the family before the deed was given could not alter or change its effect. Parol evidence of the object and purpose for which the conveyance was made thereby, to con- vert the deed into one of trust, is not admissible. Flint v. Shelden, 13 Mass. 448. Nor is there a resulting trust. The payments by the different members of the family were made at different times after the title was in Oliver. Nothing was paid by any one when the conveyance was made, and it is well settled that no resulting trust can arise from the payment or advance of money after the purchase is com- pleted. Farnham v. Clements, 51 Me. 426 ; Dudley v. Bachelder, 53 Me. 403." Appleton, C. J., Gerry v. Stim- son, 60 Me. 188. Certificates of stock absolute on their face can be shown by parol evidence to be held as collateral security. Bur- gess V. Seligman, 107 U. S. 20. 1 Supra, § 903. 2 Supra, § 903; Jones on Mortgages, ch. viii. ; Peugh c. Davis, 96 U. B. 332: Brick u. Brick, 98 U. S. 514; Hills «. Loomis, 42 Yt. 562; Clark v. Clark, 43 Vt. 685 ; French u. Burns, 35 Conn. 359 ; Whitney v. Townsend, 2 Lansing, 249 ; Chapman v. Porter, 69 N. Y. 276 ; Matthews u. Sheehan, 69 N. Y. 585 ; Phillips v. Hulsi2er,.20 N. J. Eq. 308 ; Crane v. DeCamp, 21 N. J. Eq. 414; Sweet v. Parker, 22 N. J. Eq. 453 ; McGinity ... McGinity, 63 Penn. St. 38 ; Harper's Appeal, 64 Penn. St. 316 ; Odenbaugh u. Bradford, 67 Penn. St. 96 ; Wilson v. Geddings, 28 Ohio St. 554 ; Snaveley t,. Pickle, 29 Grat. 27 ; Klinik v. Price, 4 W. Va. 4 ; Shays v. Norton, 48 III. 100 ; Ruck- man V. Atwood, 71 111. 155 ; Workman a. Greening, 115 111. 477; Kent v. Agard, 24 Wis. 378 ; Kent v. Lasley, 24 Wis. 654; Robertson d. Willoughby, 65 N. C. 520 ; Klein v. McNamara, 54 Miss. 90 ; Turner i\ Kerr, 44 Mt). 429 ; Phillips V. Croft, 42 Ala. 477 ; Paris v. Dunn, 7 Bush. 276 ; Honore v. Hutoh- ings, 8 Bush. 687 ; Raynor v. Lyons, 37 Cal. 452; McKinney v. Miller, 19 Mich, 142. The nature of the consid- eration will be of much weight in de- termining the equities. See Cornell b. Hall, 22 Mich. 377 : supra, § 931 a. 211 1032.] THE LAW OF EVIDENCE. [book II. is not questioned that an instrument absolute in its terms may be shown by parol evidence to be only a mortgage."^ And this may An administrator's lease, personal on Its face, may be shown to have heen for the benefit of the estate. Russell V. Erwin, 41 Ala. 292. 1 Strong, J., in Morgan v. Shinn, 15 Wall. 110 ; citing Babcock v. Wyman, 19 How. 289 ; S. P. Russell v. Southard, 12 How. 139 ; Campbell v. Dearborn, 109 Mass. 130. As to rebutting evidence in such cases see Black's Appeal, 89 Penn. St. 201. The practice in New York is stated in the following opinions : — " It is now too late to controvert the proposition that a deed, absolute upon fore asserted under like circumstances in Robinson <■. Cropsey, 2 Edw. Ch. R. 138 ; affirmed 6 Paige, 480. It was expressly adjudged in Strong v. Stew- art, 4 J. C. R. 167 , that parol evidence was admissible to show that a mortgage only was intended by an assignment absolute in terms ; and to the same ef- fect is Clark v. Henry, 2 Cow. 324, which was followed by this court in Murray v. Walker, 31 N. Y. 399. In Hodges V. Tennessee Marine & Fire In- surance Co., 4 Seld.416, the court says that ' from an early day in this state, the rule, that parol evidence is admis- its face, may in equity be shown, by sible for me purpose named, has been parol or other extrinsic evidence, to haye been intended as a mortgage ; and fraud or mistake in the preparation, or as to the form of the instrument, is not an essential element in an action for relief, and to give effect to the intention of the parties. The courts of this state are fully committed to the doctrine ; and, whatever may be the rule in other states, here, in passing upon the ques- tion, we have only to stand upon the safe maxim of stare decisis. It is not enough, In view of the fact that the ad- judications have entered into and con- trolled business transactions, and be- come a rule of property, to authorize a reconsideration of the questions, that the rule has been authoritatively ad- judged otherwise as a rule of evidence in common law courts, and that emi- nent judges have contended earnestly against its adoption as a rule in courts of equity. Notwithstanding their pro- tests, the rule has been, upon the full- est consideration, deliberately estab- lished, and cannot now be lightly de- parted from. The principle was recog- nized by the chancellor in Holmes u. Grant, 8 Paige, 243 ; although it was not applied in that case, and had been be- 212 established as the law of our courts of equity ; aud it is not fitting that the question should be re-examined, and the cases in which it has been so ad- judged are cited with approval.' In Sturtevant v. Sturtevant, 20 N. Y. 39, the same judge, pronouncing the opin- ion as in the case last cited, distin- guishes between the case of a mortgage and trust ; and it was decided that while a deed absolute in terms could be shown to be a mortgage, a trust in favor of the grantee could not be es- tablished by parol. And see Despard V. Walbridge, 15 N. Y. 374. The rule does not conflict with that other rule which forbids that a deed or other writ- ten instrument shall be contradicted or varied by parol evidence. The instru- ment is equally valid whether intended as an absolute conveyance or a mort- gage. Effect is only given to it accord- ing to the intent of the parties ; and courts of equity will always look through the forms of a transaction and give effect to it so as to carry out the substantial intent of the parties." Al- len, J., Horn V. Keteltas, 46 N. Y. 609. So in a later case : — "It is always competent to show CHAP. XII.] CONTRACTS MODIFIED BY PAROL. [§ 1033. be done by a court of law with equitable jurisdiction.^ But equity will not relieve if the deed was made absolute on its face to effect a fraud on his creditors by the grantor.^ § 1033. A deed, however, that is absolute on its face, and which is duly delivered, and possession taken under it, cannot be contradicted by parol evidence to the effect that it ^usiTbe^ was intended only as a trust, unless fraud or concurrent P'^in and mistake be shown, and the evidence be plain and strong, and relate to intention coincident with the execution.' A party that an assignment or conveyance, sib- solute in form, was only intended as a security. Hodges v. Tennessee M. & F. Ins. Co., 8 N. Y. 416 ; Despard u. Walbridge, 15 N. Y. 374 ; Sturtevant V. Sturtevant, 20 N. Y. 39." Earl, C, McMahon v. Macy, 51 N. Y. 161. In Pennsylvania it is now settled th at the fourth section of the Act 1856, requiring instruments of trust to be in writing, made no alteration in the rule theretofore existing, wliich allowed a deed, absolute on its face, to be shown by parol to be a mortgage. Ballentine v. White, 77 Penn. St. 20 ; Maffitt v. Rynd, 69 Penn. St. (19 P. F. Smith), 387. ' Gardner i;. Cazenove, 14 N. H. 423 ; Blanchard v. Fearing, 4 Allen, 118. 2 Hassam v. Barrett, 115 Mass. 256. ' Supra, § 904; Movan v. Hays, 1 Johns. Ch. 339 ; St. John v. Benedict, 6 Johns. Ch. Ill ; Barrett v. Carter, 3 Lansing, 68 ; Hutchinson v. Tindall, 3 N. J. Eq. 357 ; Whyte v. Arthur, 17 N. J. Eq. 521 ; Cook v. Barr, 44 N. Y. 156 ; Goucher v. Martin, 9 Watts, 106 ; Lin- genfelter v. Riohey, 62 Penn. St. 128 ; Com. V. Kreager, 78 Penn. St. 477; Stanley v. Hubbard, 27 W. Va. 743 ; Collier v. Collier, 30 Ind. 32 ; Minot v. Mitchell, 30 Ind. 228; NicoU i.. Mason, 49 111. 358 ; Lantry „. Lantry, 51 111. 451 ; Knowles u. Knowles, 86 111. 1 ; Barns v. Byrne, 45 Iowa, 285 ; Barkley V. Lane, 6 Bush, 587,; Bonham v. Craig, 80 N. C. 224 ; Ely v. Early, 94 N. C. 1 ; Waddingham ». Loker, 44 Mo. 132 ; Shaw V. Shaw, 86 Mo. 595 ; Sloan v. Baxter, 34 Minn. 491 ; Markham v. Ca- rothers, 47 Tex. 21 ; Thomas v. Ham- mond, 47 Tex. 42. See Parlin v. Small, 68 Me. 289; Hassam u. Barrett, 115 Mass. 256. . . . . " In a case where a trust, or the conversion of an absolute estate into a mortgage, is attempted to be made out by parol evidence, the court and jury exercise the functions of a chancellor, and the evidence, assuming the testimony of the witnesses to be true, ought to be such as would satisfy his conscience. 'The judge alone is the chancellor. The province of the jury is to aid him in ascertaining the facts out of which the equities arise. If the facts are not disputed, he is to de- clare their effect and determine whether the claim or the defence is well founded. A chancellor is judge, both of the equity and of the facts. It is in his discretion whether he will send an issue to a jury ; and if he does, their verdict is only advisory. It is not con- clusive upon him. Whenever, there- fore, upon the trial of an ejectment, founded upon an equitable title, the court is of an opinion that the facts proved do not make out a case in which a chancellor would decree a convey- ance, it is their duty to give binding instructions to that effect to the jury.' Strong, J., in Todd v. Campbell, 8 Ca- 213 § 1035.] THE LAW OF EVIDENCE. [book II. Under statute of frauds sufficient if trust is manifested in writing. setting up a trust title of this class must do equity by an offer to redeem.' ■ § 1034. We have already seen,' that the terms of the statute of frauds do not prevent a parol declaration of trust; though in England and in most states in this country, the trust must be sustained by some written proof. " It is not re- quired by the statute that a trust should be created by writing, and the words of the statute are very particular in the clause respecting declarations of trust. It does not by any means require that all trusts shall be created only by writing, but that they shall be manifested and proved by writing, plainly meaning that there should be evidence in writing proving that there was such a trust. Therefore, unquestionably, it is not necessarily to be created by writing, but it must be evidenced by writing, and then the statute is complied with ; and indeed the great danger of parol declarations, against which the statute was intended to guard, is entirely taken away. I admit that it must be proved in toto, not only that there was a trust, but what it was."' An answer in chancery has consequently been held sufficient to sus- tain the establishment of a trust ; and so have, a fortiori, written admissions.'' § 1035. Where one person pays the purchase-money, and another takes the title, then in equity the person taking the title will be treated as trustee for the person paying the liioney. In such case parol evidence is admissible to prove the trust, though such evidence must be clear and strong.' The broad principle is, that whoever pays the purchase- Resulting trust may be proved by parol. sey, 252." Sharswood, J., MoGrinity v. McGinity, 63 Penu. St. 44. And see, under statute of frauds, §§ 863, note, 903. 1 Supra, §§ 850 et seq. ; Thomas v. Wright, 9 S. & R. 87 ; Hughes v. Davis, 40 Cal. 117. 2 Supra, § 903. 3 Lord Alvanley in Foster v. Hale, 3 Ves. 707. See Smith v. Matthews, 6 W. R. 644, and in prior notes here- to ; and see oases cited in 2 Wash. Real Prop. 50, 51 (4th ed.), and supra, § 903. 214 * 3 Sugd. V. & P. 252 ; Rob. on Frauds, 95 ; Randall v. Morgan, 12 Ves. 67. See supra, § 903. = Dyer u. Dyer, 2 Cox, 92 ; Buck v. Pike, 2 Fairfield, 9 ; Baker ,;. Vining, 30 Me. 127 ; Page v. Page, 8 N. H. 187 ; Moore v. Moore, 38 N. H. 187 ; Hutohius V. Heywood, 50 N. H. 491 ; Penney o. Fellow^, 15 Vt. 525 ; Peabody v. Tar- bell, 2 Gush. 232 ; Kendall v. Mann, 11 Allen, 15 ; Blodgett v. Hildredth, 103 Mass. 487 ; Barrows v. Bohan, 41 Conn. 278 ; Boyd v. McLean, 1 Johns. C. R. 582 ; Swinburne v. Swinburne, 38 N. CHAP. XII.] CONTRACTS MODIFIED BY PAROL. [§ 1036. money of land is entitled to the fruits of that which he purchases, though the legal title is in another. * To this rule exists a well- marked exception, that when the money is advanced by a parent, and the legal title taken in a child, the advance will be supposed to be for the benefit of the child.'' Equity will also enforce a result- ing trust where a conveyance is made in a trust declared only in part ; while as to the residue there is no disposition on the face of the writing.^ The doctrine, it should be observed, is analogous to the common law rule, that where there is a feoffment without con- sideration the use results to the feoffor.^ Parol evidence is as admissible to disprove as to prove the trust.° § 1036. In several states of the Union, among which may be Y. 568 ; Richards v. Millard, 56 N. Y. 574 ; Jackman v. Ringland, 4 Watts & S. 149 ; MoGinity v. McGinity, 63 Penn. St. 39 ; Hays v. Quay, 68 Penn. St. 263 ; Parrel v. Lloyd, 69 Penn. St. 239. See Lloyd V. Parrel, supra, § 1027 ; Creed v. Bank, 1 Ohio St. 1 ; Miller v. Stokely, 5 Ohio St. 194 ; Lewis v. White, 16 Ohio St. 44; Hollis ./. Hayes, 1 Md. Ch. 479 ; Cecil Bk. u. Snively, 23 Md. 261 ; Dryden v. Hanway, 31 Md. 354 ; Bank U. S, v. Carrington, 7 Leigh, 566 ; Phelps V. Seely, 22 Grat. 587 ; Borst v. Nalle, 28 Grat. 423 ; Parmlee v. Sloan, 37 Ind. 469 ; Kane v. Herrington, 50 111. 232; Thomas c. Chicago, 55 111. 403 ; Roberts v. Opp, 56 III. 34 ; Smith V. Smith, 85 111. 189 ; McGuire v. Mc- Gowen, 4 Dess. Ch. 481 ; Price v. Brown, 4 S. C. 144; Harvey :. Gill, 7 J. J. Marsh. 438; Whittaker . Bosworth, 19 Pick. 314 ; Clark u. Houghton, 12 Gray, 38 ; Swick v. Sears, 1 Hill (N. Y.) 17 ; Acker ti. Phoenix, 4 Paige, 305 ; Rath- bun V. Rathbun, 6 Barb. 98 ; Machiru. McDowell, 4 Bibb. 473. « Canal Co. ■;. Ray, 101 U. S. 522 ; supra, §§ 1018, 1045. 6 Lothrop V. Foster, 51 Me. 367. 229 § 1052.] THE LAW OF EVIDENCE. [book ir. all the world in general.^ Where a deed for a farm contains no reservation of the growing crop to the grantor, such reservation can- not be proved by parol.^ And where the owner of land, in a con- veyance of a portion thereof, granted " a right of way to be used in common over and upon the land of the grantor, on the easterly side of the land conveyed," parol evidence was held inadmissible to show that the grant was intended by the grantor to be only a right to reach a portion of the land conveyed.' § 1052. It has been said that parol evidence is inadmissible to contradict the certificate of acknowledgment of a deed.* But this conclusion is founded on a petitio prinoipii. We cannot logically declare that a deed is acknowledged, when the acknowledgment is the point in dispute, for this is equivalent to saying that we know it is a deed because it is acknowledged, and that we know it is acknowledged because it is a deed. The true view is, that the certificate of acknowledg- ment is primd facie proof of the facts it contains, if within the officer's range, but is open to rebuttal, between the parties, by proof of gross concurrent mistake or fraud. In favor of pur- chasers for valuable consideration without notice, it is conclusive as to all matters which it is the duty of the acknowledging officer to certify, if he has jurisdiction.' As to all other persons it is opea Certificate of ac- knowledg- ment open to parol dispute. 1 Raymond v. Raymond, 10 Cusli. 134. 2 Austin V. Sawyer, 9 Cow. 39 ; Win- termute v. Light, 46 Barb. 278 ; Smith V. Porter, 39 111. 28 ; Mcllvaine v. Har- ris, 20 Mo. 457. But see contra, Mer- rill ■.. Blodgett, 34 Vt. 480 ; Baoken- stoss V. Stahler, 33 Penn. St. 251 ; Har- hold V. Kuster, 44 Penn. St. 392 ; Flynt V. Conrad, Phill. (N. C.) L. 190. And see Robinson v. Pritzer, 3 W. Va. 335. 3 Miller v. Washburn, 117 Mass. 371. * Greene v. Godfrey, 44 Me. 25 ; Kerr V. Russell, 69 111. 666. 6 3 Washb. on Real Prop. (4th ed.) 326 ; Smith v. Ward, 2 Root, 374 ; Jack- son u. Sohoonmaker, 4 Johns. R. 161 ; Thurman v. Cameron, 24 Wend. 87 ; Schrader v. Decker, 9 Barr, 14 ; Hale V. Patterson, 51 Penn. St. 289 ; Wil- 230 liams V. Baker, 71 Penn. St. 482 ; Dufif V. Wynkoop, 74 Penn. St. 300 ; Heeter V. Glasgow, 79 Penn. St. 79 ; Miller p. Wentworth, 4 Weekly Notes, 88 ; Ey- ster V. Hathaway, 50 111. 521 ; Wanuell V. Kem, 57 Mo. 478 ; Tatnm v. Goforth, 9 Iowa, 247 ; Borland v. Walrath, 33 Iowa, 130 ; Pringle v. Dunn, 37 Wis. 449 ; Dodge v. Hollingshead, 6 Minn. 25 ; Edgerton v. Jones, 10 Minn. 427 ; Fisher v. Meister, 24 Mich. 447 ; Hour- tienne v. Schnoor, 33 Mich. 274 ; John- sou V. Pendergrass, 4 Jones L. 479 ; Ford u. Teal, 7 Bush, 156 ; Woodhead t>. Foulds, 7 Bush, 222; Hughes v. Colman, 10 Bush, 246 ; Bledsoe v. Wiley, 7 Humph. 507 ; Westbrooks V. Jeffers, 33 Tex. 86 ; Landers t. Bolton, 26 Cal. 406. In Louisiana, ' ' since the Act of 1858, CHAP. XII.] DEEDS MODIFIED BY PAROL. [§ 1052. to dispute.^ When executed in conformity with statute, it may be regarded as a judicial act ; but even treating an acknowledgment as where a married woman, with the au- thorization of lier husband, and the sanction and certificate of the judge, horrows money, the creditor is not bound to show that the money was used for her separate benefit and ad- vantage, but the debt may be enforced against her, . . unless she shows that with the knowledge and connivance of the lender, the money was borrowed and used, not for her separate benefit, but for that of her husband." Woods, J., Portier v. Bank, 112 U. S. 450. As English authorities on this point, see Doe v. Lloyd, 1 M. & Gr. 671, 684 ; Kinnersley v. Orpe, 1 Doug. 58 ; and other cases cited and criticised supra, §741. The officer may himself be examined as to the competency of the party . Tru- man v. Lore, 14 Ohio St. 151. As to effect of acknowledgments as entitling a document to be received in evidence, see supra, §§ 740-1. As to acknowledgment of sheriff's deeds, see supra, §§ 981-2. That in such cases the presumption is in favor of regularity, see Addis v. Graham, 88 Mo. 197. As to evidence to dispute acknowledgment, see Drew u. Arnold, 85 Mo. 129. That it is not necessary for the officer to explain the contents of the deed to the married woman, see Webb v. Webb, 87 Mo. 640. 1 In Pennsylvania we have the fol- lowing : — ' ' Under the Act of the 24th February, 1770, 1 Sm. 307, establishing a mode by which husband and wife may convey the estate of the wife, the official cer- tificate of acknowledgment is the only evidence that the wife has acknowl- edged the deed in the form required by the statute, in order to make a valid conveyance of her interest in real estate, and, except in cases of fraud and duress, it is conclusive of every material fact appearing on its face. But, though it is not conclusive as between the parties in cases of fraud and imposition, or of duress, and may he overcome by parol evidence, it is conclusive as to subsequent purchasers for a valuable consideration without notice. Sohrader v. Decker, 9 Barr, 14 ; Louden u. Blythe, 4 Harris, 532 ; Louden v. Blythe, 3 Casey, 22 ; Mich- euer v. Cavender, 2 Wright, 334 ; Hall u. Patterson, 1 P. P. Smith, 289. ' ' But it is conclusive of such facts only as the magistrate is hound to re- cord and certify, not of facts which he is not required to certify under the provisions of the statute. The gen- eral rule in regard to certificates given by persons in official station is, that the law never allows a certificate of a mere matter of fact, not coupled with any matter of law, to be> admitted in evidence. If the person was bound to record the fact, then the proper evi- dence is a copy of the record duly au- thenticated. But, as to matters which he was not bound to record, his certifi- cate, being extra-official, is merely the statement of a private person, and will, therefore, be rejected. So, where an officer's certificate is made evidence of facts, he cannot extend its effects to other facts by stating those also in the certificate ; but such parts of the cer- tificate will be suppressed. 1 Green- leaf's Evid. § 498 ; Omichund c Bar- ker, Willes E. 549, 550 ; Wolfe v. Wash- burn, 6 Cowen, 261 ; Johnson v. Hooker, 1 Dall. 406 ; 3 Cowen & Hill's Evidence, note 701, p. 1044. "As the magistrate is not required by the act to certify that the wife was 281 § 1053.] THE LAW OF EVIDENCE. [book II, a judicial act, it follows that it may be collaterally impeached by proof, not only of fraud and want of jurisdiction, but of gross patent violation of the ordinary rules of justice.' § 1053. When an acknowledgment is defective in any of its averments, these may be supplied by parol proof.* It is enough if of full age when she acknowledged the deed, she is not concluded by his cer- tificate of the facts from showing that she was a minor when she signed and delivered it." Williams, J., Williams r. Baker, 71 Penn. St. 481 ; S. P., Ledger Co. v. Cook, 6 Weekly Notes, 421. In Hector v. Glasgow, 79 Penn. St. 79, the rule is thuS stated by Paxson, J. :— "The certificate of a justice of the peace of the acknowledgment of a deed or mortgage is a judicial act. It is con- clusive ot the facts certified to in the ab- sence of fraud or duress. This is the current of all the authorities in this state. Jamison v. Jamison, 3 Whart. 457 ; Hall Story on Bills, §§ 193^ ; 2 Greenl. on Ev. § 172 ; Harvey v. Towers, 6 Ex. 656 ; Bailey v. Bidwell, 13 M. & W. 656 ; Berry v. Alderman, 14 C. B. 95. See, however, contra, as to the burden of consideration, Smith v. Martin, 9 M. & W. 304 ; C. & M. 58. Whether the fraud that invalidates the transfer must be fraud intended at the time of delivery, or whether, to establish fraud, it is sufficient to show that there was a mistake between the parties which the plaintiff subse- quently, fraudulently, and in violation of good faith, determined to avail him- self of, has been much discussed. The English courts, and most of the courts of this country, including the Supreme Court of the United States, hold that fraud is only a defence when it entered into the original transaction. In Penn- sylvania and other States, if it be proved that the signature was obtained 238 on a statement that it was to impose only a qualified obligation on the signer, and if the party obtaining the signature seeks to enforce it absolutely, this by itself is a fraud which either pro tanto or totally precludes recovery. See Renshaw v. Gans, 7 Barr, 117 ; and note by Judge Sharswood to Byles on Bills, 7th Am. from 13th Eng. ed. 103. The course of the Pennsylvania courts in this relation (see authorities in following notes) may be explained (as is stated by McLean, J., in Bank U. S. u. Dunn, 6 Peters, 51, the leading case in which parol evidence in such cases is excluded) by the fact that in that State equitable defences are admis- sible in common law suits. In juris- dictions in which equitable defences are not so receivable, but where there is a distinct chancery jurisdiction, there is no reason why a bill in equity would not lie in such cases to restrain the party who thus improperly obtains another's signature from negotiating or suing on such paper. See Walden v. Skiuner, 101 U. S. 577, and authorities hereafter cited. * Brown v. SpofiFord, 95 D. S. 474 ; Battles V. Laudenslager, 5 Weekly Notes, 339. Supra, § 1033. The English rule, prior to the passage of the judicature act, is given in Abrey V. Crux, L. R. 5 C. P. 37, which was an action by payee against drawer of a CHAP. XII.] VARIATION OF BILLS AND NOTES. [§1058. It is admissible for the defendant, also, to show that the paper with the defendant's signature was given to the plaintiff only as an escrow ;' or that when delivered there was no agreement between defendant and plaintiff that the defendant should be liable on the paper according to the law merchant.^ Even by courts holding that bill, in which it was held that it was inadmissible for the defendant to prove that by an oral contemporaneous agree- ment he was only to be liable in case the plaintiff was not recompensed on the sale of certain securities held by him, which securities the plaintiff con- tinued to hold. " The contract entered into by the defendant," said Bovill, C. J., "was a contract in writing by his signature to the bill as drawer, which imports a liability on the de- fendant to pay the amount on default of the acceptor and notice to the de- fendant of such default. That which the plea attempts to set up is, that the defendant, at the time he signed the bill as drawer, entered into a contract under which the payment was to be made at a different time and in a dif- ferent manner from that which the bill imports — an agreement, in short, which contradicts the written contract, and oral evidence of which is inadmis- sible, according to the authority of numerous decisions ; amongst others, Hoare v. Graham, 3 Camp. 57 ; and Free v. Hawkins, 8 Taunt. 92 ; which were confirmed by Moseley v. Hanford, 10 B. & C. 729, and other cases, and adopted in the recent case in this court of Youngt). Austen, L. R. 4 C. P. 553." Keating and Brett, .JJ., concurred. Willes, J., however, had "great doubt as to the propriety of excluding the pa- rol evidence. . . . The agreement al- leged in the third plea is, that if the hill should not be duly paid, the plain- tiff would sell the securities and apply the proceeds in liquidation of the bill, and that, until the plaintiff should have so sold the securities, the defendant should not be sued upon the bill. That is not like the agreement set up in Hoare v. Graham, 3 Camp. 57 ; or in Young v. Austen, L. E. 4 C. P. 553, where the agreement was that the bill should be renewed ; nor is it like the agreement in Free v, Hawkins, 8 Taunt. 92, which was set up for the purpose of postponing the time for payment out of a fund within the control of the maker of the note, and not, as here, under the control of the plaintiff, and providing for a means of payment of the bill. . . . These cases are all dis- tinguishable, inasmuch as they were cases where the defendants were held not to be entitled to contradict by parol evidence a written contract which was as complete at the time it was entered into as it ever was intended to be ; for, as Lord EUenborough says, it would be contrary to first principles to incorpo- rate with a written agreement an in- congruous parol condition. ... I do not see why we should not, in a novel case to which no distinct law is appli- cable, rather follow the justice of the case than strive to bring the case within a principle which will defeat justice." Abrey v. Crux, however, was decided before the passage of the judicature act, by which evidence on which a court of equity would enjoin negotiation of or proceedings on nego- tiable paper was made admissible in a suit on such paper in a court of law. 1 Supra, § 930 ; Searfe v. Byrd, 39 Ark. 668. 2 Supra, § 1017 a ; Denton v. Peters, L. R. 5 Q. B. 475, cited more fully in- fra. In Connecticut it is held admis- sible to show by parol, in a suit by the 239 § 1058.] THE LAW OF EVIDENCE. [book ir. parol evidence is inadmissible to contradict or vary negotiable paper, it is conceded to be, as between the immediate parties, admissible to prove that by a written agreement contemporaneous with the making or accepting of negotiable paper, the obligation imposed by the law merchant on the maker or acceptor was modified ;' though to such an agreement a good consideration is requisite.^ It is difiicult to understand, however, why, unless it be so required by statute, a written agreement, outside of the note or bill, should be admissible to correct its terms any more than an oral agreement, unless such written agreement be attached to the bill or note, so as to form part of it. If insolubility by extraneous testimony is an incident of ne- gotiable paper, such insolubility precludes the operation of extra- neous written testimony as much as it does that of extraneous oral testimony. As will presently be more fully seen,* latent ambiguities in . negotiable paper may be solved by parol. Thus, while under the limitations above given, it is inadmissible to show that it was in- payee against the maker of a note, that it was agreed by tlie parties at the time the note was given that it was only to he used to further a special purpose, which purpose had fallen through. Schindler v. Muhlheiser, 45 Conn. 153 (1877). "Instead of preventing fraud," said Carpenter, J., "such an application of the rule (excluding parol evidence when offered to vary a con- tract) would perpetrate a fraud of the grossest character, and bring a reproach upon the law and the administration of justice. It would be unfortunate in- deed if such a salutary rule of law could be perverted so as to apply to a case like this." " In analogy with a deed, it has been held that a written and signed simple contract may be delivered with an ex- press parol condition that it is not to take effect except in a certain event. And the instrument may be so de- livered, not only to a stranger, but by one party to the other." Byles ou 240 Bills, 7th Am. from 13th Eng. ed. 103, citing Davis v. Jones, 17 C. B. 625 ; Pym V. Campbell, 6 E. & B. 370 ; Rog- ers V. Handley, 32 L. J. Ex. 241. And evidence of the parol condition is ad- missible, not only when it is relied on as a condition, but also when an ac- tion is brought upon it as an agree- ment. Byles on Bills, «/ sup., citing Hindley v. Lacy, 34 L. J. C. P. 7. See Foy V. Blackstone, 31 111. 538. But to a bond fide holder for value without no- tice, it is no defence that as between the original parties the paper was delivered as an escrow. Fearing v. Clark, 82 Mass. 74 ; Bank «. Strang, 72 111. 559 ; Jones V. Shaw, 67 Mo. 667. ' Byles on Bills, 100 ; Bowerbank t>. Monteiro, 4 Taunt. 844 ; MoManus e. Bark, L. R. 5 Ex. 65 ; Young v. Aus- ten, L. B. 4 C. P. 553 ; Carr v. Ste- phens, 9 B. & C. 758 ; Davis v. Brown, 94 U. S. 420. 2 McManus v. Bark, L. R. 5 Ex. 65. ' Infra, § 1062. CHAP. XII.] VARIATION OP BILLS AND NOTES. [§ 1059. tended that the note was to be paid in other than legal currency/ yet when by universal local custom " dollar" has a particular meaning assigned to it (e. g., that of Confederate dollar), it is ad- missible to prove this meaning as to those necessarily aware of such meaning.^ But local custom cannot ordinarily be introduced to aifect the liability of parties to negotiable paper, or to cheques, as fixed by the law merchant.^ § 1059. So far as concerns the immediate contracting parties, a blank indorsement exhibits at the best a contract by im- „, , . •' Blank m- plication. It is true that, as to hond fide holders of dorsements 11 • 1 • . 1 !■ 1 1- 1 -1- • ™^y be ex- papers regularly negotiated, it establishes a liability in- plained by disputable if the signature be genuine.^ As to holders ^*™ ' with notice, or parties taking paper after maturity, however, the liability may be modified by parol, on proof of fraud, or of facts which make it inequitable for the plaintiff to recover." On the ' Linville v. Holden, 2 McArtLur, 329; MoMinn o. Owen, 2 Dall. 173; Lang V. Johnson, 24 N. H. 302 ; Brad- ley V. Anderson, 5 Vt. 152 ; fiilman v. Moore, 14 Vt. 457 ; Woodin u. Foster, 16 Barb. 146 ; Hair ^. La Brouse, 10 Ala. 548 ; Smith v. Elder, 15 Miss. 507 ; Cockrill V. Kirkpatrick, 9 Mo. 688 ; Baugh V. Ramsey, 4 T. B. Mon. 155 ; Noe V. Hodges, 3 Humph. 162; Fields V. Stunston, 1 Coldw. 140 ; Self r. King, 28 Tex. 552. See Bryan v. Harrison, 76 N. C. 360 ; Davis v. Glenn, 76 N. C. 427. 2 Thorington i;. Smith, 8 Wall. 1, 12 ; see Pilmer v. Bank, 16 Iowa, 324 ; Haddock v. Woods, 46 Iowa, 433 ; Cowles V. Garrett, 30 Ala. 341. Sxipra, § 1058. As to other latent ambiguities see supra, § 957 ff. ; supra, § 948. " Merchants' Bank v. State Bank, 10 Wall. 604 ; Higgins v. Moore, 34 N. Y. 417 ; Lawrence v. Maxwell, 53 N. Y. 19 ; Security Bank ii. National Bank, 67 N. Y. 458. Supra, § 958 ff. It has, however, been held in Eng- land that It is admissible to prove the custom of bill-brokers in the city of London not to indorse bills given to VOL. II. — 16 them to deal with, but instead to give the bankers who discount such notes a general guarantee, the object being to show that brokers were guarantors of such bills. Bishop, ex parte, 15 Ch. D. 400, cited in full supra, § 959. « Union Bank v. Willis, 8 Met. 504 ; Brown v. Butler, 99 Mass. 179 ; Way v. Butterworth, 108 Mass. 509 ; AUeu v. Brown, 124 Mass. 77 ; Hill v. Shields, 82 N. C. 250. 5 Infra, § 1060. Phillips v. Preston, 5 How. 278 ; Susquehanna Co. u. Evans, 4 Wash. C. C. 480 ; Nat. Bank of Ris- ing Sun V. Brush, 10 Biss. 188 ; Smith V. Morrill, 54 Me. 48 ; Sylvester v. Downer, 20 Vt. 355 ; Barker v. Pren- tiss, 6 Mass. 430 ; Clapp v. Rice, 13 Gray, 403 ; Smith v. Barber, 1 Root, 207 ; Perkins «. Catlin, 11 Conn. 213 Herrick v. Carman, 10 Johns. 224 Bruce v. Wright, 5 Thom. & C. 81 Boynton v. Pierce, 79 111. 145 ; Love y. Wall, 1 Hawks, 313 ; Gomez v. Lazarus, 1 Dev. Eq. 205 ; Davis v. Morgan, 64 N C. 570 ; Mendenha^l v. Davis, 72 N. C. 150 ; Marietta Bank v. Janes, 66 Ga. 286 ; Galceron v. Noble, 66 Ga. 367. 241 § 1059.] THE LAW OF EVIDENCE. [book II. broad question here involved, there is a strong current of authority to the effect that an indorsement in blank, being but a short-hand expression of a contract, may be expanded and explained by parol between the parties with notice.^ On the other hand, we have high authorities to the effect that such an indorser cannot show, against his indorsee, or against any other party either with or without notice, that it was agreed that the indorsement was to be without recourse, or for other reasons inoperative.* • See Kidson v. Dilworth, 5 Price, 564; Castrique v. Battigieg, 10 Moore P. C. 94 ; and see to same effect Sus- quehanna Co. V. Evans, 4 Wash. C. C. 480 ; ' Smitli v. Morrill, 54 Me. 49 ; Brewer v. Woodward, 64 "Vt. 581 ; Derry Bank v. Baldwin, 41 N. H. 434 ; 44 Id. 174 ; Hamburger v. Miller, 48 Md. 317 ; Bruce v. Wright, 3 Hun, 548 ; Ross V. Espy, 66 Penn. St. 481 ; Hud- son V. Wolcott, 39 Ohio St. 618 ; Bailey V. Stoneman, 41 Ohio St. 148 ; Roth- child 0. Grix, 31 Mich. 150 ; Greusel v. Hubbard, 51 Mich. 95 ; Heiske v. Brou- sard, 55 Tex. 201 ; see Preston v. Gould, 64 Iowa, 14. 2 Daniel on Neg. Inst. § 718 ; Alvey u. Crux, 5 L. R. C. P. 37 ; Free v. Haw- kins, 8 Taunt. 92 ; Hoare v. Graham, 3 Camp. 57.; Bank U. S. u. Dunn, 6 Pet. 51 ; Brown v. Wiley, 20 How. 442 ; Bank U. S. u. Higginbottom, 9 Pet. 51 ; Cox V. Bank, 100 U. S. 704 ; Marten v. Cole, 104 U. S. 30 ; Specht v. Howard, 16 Wall. 564 ; Prescott Bk. v. Caverly, 7 Gray, 217 ; Howe v. Merrill, 5 Cush. 80 ; Dale v. Gear, 38 Conn. 15 ; Bank of Albion <;. Smith, 27 Barb. 489; Chaddook v. Vanness, 35 N. J. L. 622, overruling Johnson v. Mortimer, 9 N. J. L. 144; Woodward o. Foster, 18 Grat. 205; Beattie v. Brown, 64 111. 360 ; Skelton v. Dustin, 92 111. 491 ; Courtney v. Hogan, 93 111. 101 ; Camp- bell V. Robins, 29 Incl. 271 ; Stack v. Beach, 74 Ind. 571 ; Levering v. Wash- ington, 3 Minn. 323; First Nat. Bank V, Nat. Marine Bank, 20 Minn. 23 ; 242 Rodney u. Wilson, 67 Mo. 123. See Bigelow, Bills, etc., 168. But see Levan 0. Vannevar, 137 Mass. 132 ; Winches- ter V. Whitney, 138 Mass. 549 ; Barnard V. Gaslin, 23 Minn. 192 ; Smith v. Case, 9 Or. 278. From a learned Maine judge we have the following review of cases : — " In Brewster u. Dana, 1 Root, 267, it is said by the court that a blank indorsement has no certain import until filled up. In Barker v. Prentiss, 6 Mass. 430, the indorsement was i^ blank, which implies primd facie an absolute transfer of the note, but the court held that parol evidence was ad- missible to show what the real contract was, and that the note was indorsed for collection only. The same doctrine was advanced in Herrick v. Carman, lO'Johns. 224. Same in Lawrence v. Stonington Bank, 6 Conn. 521. In Boyd V. Cleveland, 4 Pick. 525, the plaintiff was permitted to show by parol evidence, that at the time of the indorsement of the note to him the de- fendant agreed to pay it if the maker did not, and that the implied condi- tions requiring demand and notice were dispensed with. Same in this state. Fullerton v. Rundlett, 27 Me. 31. " In Weston v. Chamberlin, 7 Cush. 404, the precise question was deter- mined which is raised in this case: whether a prior indorser of a promissory note can maintain an action for contri- bution against a subsequent indorser, on proving that, by an oral agreement CHAP. XII.] VAKIATION OF BILLS AND NOTES. [§ 1059. The conflict may in some measure be reconciled by accepting the following conclusions : — (1) The contract of an indorser in blank is governed by the same principles, as to variation by parol, as is the contract made by the between the indorsers, at the time of indorsing the note, they were, as be- tween themselves, co-securities ; and the court held that he could. The same doctrine was affirmed In Clapp v. Eice, 13 Gray, 403. Also in Phillips V. Preston, 5 How. D. S. E. 278 ; 16 Curtis, 396. . . . "It is idle to attempt to reconcile these decisions with the doctrine that a blank indorsement is in effect a con- tract in writing not to he varied by parol, and that in these cases it is not varied. In all these cases the contracts implied in the blank indorsements are varied, in fact swallowed up and extin- guished, so far as they are in conflict, by the express verbal agreements. So far as both are alike, or not in conflict, both are permitted to stand. But when they are in conflict the implied con- tract yields, and the express contract, whether written or verbal, prevails. " In Taunton Bank v. Eichardson, 5 Pick. 436, the plaintiff offered to prove that by a verbal agreement, made prior to the indorsement of the note in suit, demand and notice had been dis- pensed with. This was resisted upon the ground that it would vary the written contract created by the blank indorsemen ts. Th e answer of the court was, ' That the evidence did not at- tempt to change the contract, but to show that a condition beneficial to the defendants had been waived by them ; that they had agreed to dispense with notice, not that by the contract itself no- tice would not be necessary.' It is not surprising that legal minds should not rest satisfied with the logic of this de- cision. If by a previous or contempo- raneous verbal agreement an important condition of a written contract is waived, is not the written contract varied by the verbal agreement ? And is not the rule violated, which holds that all previous and contemporaneous negotiation and discussion on the sub- ject are merged or extinguished by the writing, and cannot be shown to vary it ? If not, then one condition after another might in this way be waived, until nothing would be left of the writ- ten contract, and yet the rule referred to would not be violated. Conditions in written contracts may unquestion- ably be waived by subsequent verbal agreements without violating any rule of law, but not by previous or contem- poraneous ones — a distinction which seems to have been overlooked in the case just noticed. " The only rational ground on which to justify the admission of evidence of a verbal agreement to control the con- tract implied by law in a blank in- dorsement is that laid down by Mr. Justice Washington, in Susquehanna Bridge Co. v. Evans, 4 Wash. C. C. 480 (U. S. D. p. 396, § 2132), namely, ' The reasons which forbid the admis- sion of parol evidence, to alter or ex- plain written agreements and other instruments, do not apply to those contracts implied by operation of law, such as that which the law implies in respect to the indorser of a note in hand.' " The evidence is offered in con- formity with the familiar rule that the law does not imply a contract where an express one has been made. ' Ex- pressum faoit, cessare taciturn.' Per- kins V. Catlin, 11 Conn., on page 226, a ease in which this question is very 243 § 1059.] THE LAW OF EVIDENCE. [book II. makers and accceptors of negotiable paper ; following in this respect the rulings of the Supreme Court of the United States in Martin v. Cole, 104 U. S. 30 (cited below), and of the English Privy Council in Macdonald v. Whitfield, 8 H. of L. & P. C. 745 (also cited be- low), and differing from the rulings of Judge Washington and the Pennsylvania courts. (2) Wherever a court of equity would interpose to restrain suit on a negotiation of paper where the signature of maker or acceptor fully and ably discussed, and the conclusion reached that a hlank in- dorsement is not a contract in writing ; that the law implies a contract, as in a great variety of other cases, simply because the parties have failed to make an express one, and because otherwise the indorsement would be meaningless ; that a blank indorse- ment is only pritnd facie evidence of the contract implied by law ; and that it is competent, as between the parties to the indorsement, to prove, by parol evidence, the agreement which was in fact made, at the time of the indorse- ment." Walton, J., in Smith v. Mor- rill, 54 Me. 49. See, to same general effect, Downer y. Chesebrough, 26 Conn. 39 ; Ross v. Espy, 66 Penn. St. 481. In North Carolina we have the fol- lowing ruling : — ' ' There is no written contract to be altered ; the whole (except the sig- nature, which by itself does not make a contract) exists in parol, and must be established by such proof. It may be admitted, and the authorities seem that way, that when a person, other than the payee or indorsee of a note, writes his name across the back of it, after it has been delivered by the maker, and not as a part of the orig- inal transaction, and delivers it for value to another, the law presumes that he intended to become a guaran- tor of the note. But this presumption is not one of law, but of fact merely, 244 and may be rebutted. In Love v. Wall, 1 Hawks, 313, a second indorser of a promissory note was allowed, in defence of an action brought against him by the first indorser, to prove an agreement different from what the law presumes from the order of their names on the back of the instrument, and that in fact they were jointly lia- ble as sureties for the maker. In Gomez v. Lazarus, I Dev. Eq. 205, it was taken as clear that the acceptor of a bill of exchange, as between him and an indorser^ might prove that they were joint sureties for the drawer. In Davis v. Morgan, 64 N. C. Rep. 570, the payee of a note who had written his name in blank across the back was permitted to prove that such signature was not intended as an indorsement, but as a receipt of payment from the maker. In Sylvester v. Downer, 20 Vt. 355, the court held that by an in- dorsement in blank the defendant be- came presumptively bound as a joint promisor. But Redfield, J., adds, ' But the signature being blank, he may undoubtedly show that he was not understood to assume any such obligation.' See, to the same effect, Clapp V. Rice, 13 Gray, 403. See, also, Perkins v. Catlin, 11 Conn. 213, and numerous other oases cited in a note on page 121 of 2 Parsons on Notes & Bills." Rodman, J., in Men- denhall v. Davis, 72 N. C. Rep. 154 ; but see Norton v. Coons, 6 N. Y. 33. CHAP. Xir.] VARIATION OF BILLS AND NOTES. [§ 1059. was unduly obtained, it will interpose where an indorsement in blank was unduly obtained, with this difference, that where the question is whether a person unacquainted with business, or a person of weak intellect, is fraudulently imposed on, a less potent degree of proof of such fraudulent imposition may be required when all that the signer did was to write his name on a blank piece of paper with nothing on top of it than when he put his name under a specific engagement in writing which on its face bound him to payment.* (3) What evidence is sufiScient to establish fraud or concurrent mistake is a question dependent on the concrete case. It is agreed on all sides that the evidence must be plain and strong.* The dif- ference between the Pennsylvania courts, and courts following in the same line, and the Supreme Court of the United States and the courts of Massachusetts, and of other states, is that by the former courts it is held that, as between the parties, to press a suit on negotiable paper in the teeth of an agreement between the parties to the contrary, is an act of fraud which equity would restrain, whereas the last-mentioned line of courts hold that to sus- tain the intervention of equity the party obtaining the signature under a false statement of its effect must have made such statement with fraudulent intent. (4) In England, under the judicature act, in Pennsylvania, and in courts adopting a similar system, evidence that the defendant's signature was obtained by fraud, or made under concurrent mistake, is admissible (subject to the above distinctions) in defence to a common law suit on the contested paper.' ' See supra, § 1058 ; Dale v. Gear, liability. Phipson v. Kelner, 4 Camp. 38 Conn. 15 ; Benler «. Morris, 52 N. 285 ; Burgh v. Legge, 5 M. & W. 418 ; Y. 570 ; Hill v. Ely, 5 S. & R. 363. Brett v. Lovett, 13 East, 214. It may 2 Supra, § 1033. therefore, by analogy, well be varied 3 "An indorsement may, perhaps, by parol so as to diminish his liabil- be excepted from the rule in the text ity." Byles on Bills (7th Am. from on account of its twofold operation, it 13th Eng. ed. 103, note). being at once an express assignment " If there be a written or even verbal to the indorsee of the right of action agreement between an Indorser and his against the acceptor, and containing immediate indorsee that the indorsee incorporated therewith an implied con- shall not sue the indorser but the ao- ditional promise ou the part of the in- ceptor only, it has been held that such dorser to pay on the acceptor's default, an agreement is a good defence on the This conditional promise may be varied part of the indorser against his imme- by parol, so as to increase the indorser's diate indorsee suing in breach of the 245 § 1060.] THE LAW OF EVIDENCE. [book II. § 1060. Generally as between parties with notice, or parties agreement." Byles on Bills, 154, citing Pike V. Street, 1 M. & M. 226 ; 1 Dans. & L. 159 ; Clark v. Pigott, 1 Salk. 126 ; 12 Mod. 193 ; Goupy v. Harden, 7 Taunt. 159; Scares w. Glyn, 8 Q. B. 24; Thomp- son !;.Clubly,lM.& W. 212. "Indeed, the contract between indorser and indorsee does not consist exclusive! i) of the writing popularly called an indorsement, though that indorsement he a necessary part of it. The contract consists partly of the writ- ten indorsement, partly of the delivery of the bill to the indorsee, and may also consist partly of the mutual under- standing and intention with which the delivery was made by the indorser and received by the indorsee. That inten- tion may be collected from the words of the parties to the contract, whether spoken or written, from the usage of the place or of the trade, from the course of dealing between the par- ties, or from their relative situation." Byles on Bills, 154, citing Kidson v. Dilworth, 5 Price, 564 ; Castrique v. Battigieg, 10 Moore P. C. 94. In Martin u. Cole, 104 U. S. 30, the question arose on a writ of error to the Supreme Court of the territory of Colo- rado, on a suit by Cole, the first indorsee of a promissory note, against Martin, the payee and the first indorser. The defendant, on the trial, offered to prove that by an agreement between him and the plaintiff, at the time of the in- dorsement, " Martin should indorse his name on the note in blank, to enable Cole to collect it in his own name, and that Cole agreed then, in consideration of what he had given for the note, that he (Martin) was never to be called upon as indorser or guarantor of its payment in the event he failed to col- lect it from the maker of the note." This evidence was excluded in the trial court, and its exclusion approved by the territorial supreme court, and finally 246 approved by the Supreme Court of the United States. In giving the opinion of the latter court, Matthews, J., rejects theposition taken by the Supreme Court of Pennsylvania in Ross v. Espy, 66 Penu. St. 481, that "the contract of in- dorsement is one implied by the law from the blank indorsement, and can be qualified by express proof of a differ- ent agreement between the parties, and is not subject to the rule which excludes the proof to alter or vary the terms of an express agreement." He declares that such an indorsement "is an ex- press contract, and is in writing, some of the terms of which, according to the custom of merchants, and for the con- venience of commerce, are usually omit- ted, but not the less on that account perfectly understood. All its terms are certain, fixed, and definite, and, when necessary, supplied by that common knowledge, based on universal cus- tom, which has made it both safe and convenient to rest the rights and obli- gations of parties to such instruments upon an abbreviation. So that the mere name of the indorser, signed upon the back of a negotiable instru- ment, conveys and expresses his mean- ing and intention as fully and com- pletely as if he had written out the customary obligation of his contract in full. It is spoken of by Wharton (Law of Evidence, § 1059) as a, con- tract at short hand. The same view is taken in Daniel on Negotiable In- struments, § 718, where the author states, as a resulting conclusion, that embodies the true principles applica- ble to the subject, that ' in an action by immediate indorsee against an in- dorser, no evidence is admissible that would not be admissible in a suit by a party in privity with the drawer, against him.'" It is further stated that the tenor of a blank indorsement CHAP. XII.] VARIATION OF BILLS AND NOTES. [§ 1060. taking the paper out of the ordinary coarse of business, agreements is fixed by the law merchant as defi- nitely as is that of the engagement of the maker of a note or acceptor of a bill ; and no doubt it is of much im- portance to the business community that there should be such uniformity. But does the law merchant, as is ar- gued by the eminent judge whose opinion is last quoted, prescribe that between the parties, evidence that primd Jacie liability on an indorse- ment is not subject to variation by parol ? In a case hereafter more fully cited, it was said by Lord Watson, in 1883, giving the opinion of the English Privy Council, that " it is a well-estab- lished rule of law that the whole facts and circumstances attendant on the making, issue, and transference of a bill or note may be legitimately re- ferred to for the purpose of ascertain- ing the true relation to each other of the parties who put their signature upon it, either as makers or as in- dorsers ; and that reasonable infer- ences, derived from these facts and circumstances, are admitted to the effect of qualifying, altering, or even inverting the relative liabilities which the law mer- chant would otherwise assign to them,^^ Macdonald v. Whitfield, 8 H. of L. & P. C. 745. As sustaining this view will hereafter be given citations from American courts to the same effect, aside from those from Pennsylvania, Iowa, and Tennessee. If this view, however, be correct, we may accept as part of the law merchant the rule which admits parol testimony of the relations of the parties, for the purpose of qualifying or explaining their en- gagements as exhibited by their in- dorsements in blank. Nor is this posi- tion necessarily inconsistent with the statement of Mr. Justice Matthews in Martin v. Cole, where, after relying on Bank of the U. S. v. Dunn, 6 Pet. 51 (where, as we have seen, the court left open the question whether the defence would not have been good in equity), he proceeds to say that in Forsythe v. Kimball, 91 U. S. 291, the doctrine that parol evidence cannot be received to vary negotiable paper is reaffirmed "with the addition that, in the ab- sence of fraud, accident, or mistake, the rule is the same in equity as in law." In Forsythe v. Kimball, above cited, which was a suit on a note which it was attempted to modify by parol evidence, the decision was put by Swayne, J., who gave the opinion of the court, on the ground that " it is not claimed that there was either fraud, accident, or mistake touching the secu- rities that were executed. Under these circumstances, the rule is the same in equity as at law. 2 Story's Eq., sect. 1531." In harmony with Martin v. Cole is the doctrine of the Supreme Court of Illinois, given as follows : " It cannot be a parol contract where payee in- dorses a note in blank, for there is, in legal contemplation, written over his name, the extent and character of his undertaking, which cannot be varied by parol." Seattle v. Brown, 64 111. 360, adopted by Sheldon, J., in Skeltou V. Duston, 92 111. 52, citing Prescott Bank v. Coverly, 7 Gray, 217 ; Howe v. Merrill, 5 Cush. 80 ; Dale v. Gear, 38 Conn. 15 ; Woodward v. Foster, 18 Grat. 200 ; Charles u. Denis, 42 Wis. 56 ; Rodney ». Wilson, 67 Mo. 123. See, also, Specht v. Howard, 16 Wall. 564 ; Skinner v. Church, 36 Iowa, 91 ; Pors- ter V. Clifford, 44 Wis. 56. In Courtner u. Hogan, 93 111. 101, it was held that an indorser of a note cannot be permit- ted to prove in defence to a suit against him by his immediate indorsee, that it was orally agreed between them at the time of the indorsement that the in- 247 § 1060.] THE LAW OF EVIDENCE. [BOOK II. annexing modifying collateral incidents to the paper or to the dorser was not to be personally liable. On the other hand, the following are to be noticed, in addition to prior citations to the same effect : In Brewer V. Woodward, 54 Vt. 581 (1882), it was held that parol evidence could be received to show that W., who indorsed his name in blank on a note, was not to be liable on the note unless the pur- chaser should return it on failure to collect it on maturity. In this case the note was payable to A. or bearer. " The law," said Taft, J., " is well settled that the undertaking evidenced by such an indorsement, as between the parties to it, is susceptible of being controlled by oral evidence of the real obligations intended to be assumed at the time of signing. This has, as Red- field, Ch. J., says in Sylvester v. Downer, 20 Vt. 355, been so often de- clared by this court, that it seems needless to refer to the decisions. Bar- rows V. Lane, 6 Vt. 161 ; Flint v. Day, 9 Vt. 345 ; Strong t;. Riker, 16 Vt. 554." See to same effect. Rising Sun Bank w. Brush, 10 Bissell, 188. Against A. first indorsee, the payee, who was indorser in blank, may show by parol that the object of the indorse- ment was to pass the title only. Other- wise in an action by a remote indorsee. Iredell v. Wasson, 82 N. 0. 308 ; Hoff- man V. Moore, Id. 313 ; see Braswell v. Pope, 82 N. C. 57. Or an agi-eement enlarging liability may be shown. Taylor v. French, 2 Lea, 257. Or that indorser waived demand and notice. Dye V. Scott, 35 Ohio St. 194. " While there is much diversity in the English, as well as the American, decisions on the subject of admitting evidence to rebut the legal presump- tion that every indorser in blank of a negotiable instrument intends to incur the liability which the law attaches to 248 the act ,of indorsement, in this state (North Carolina), it is settled that in an action by the first indorsee against the payee, a special agreement between them restricting the indorser's (payee's) liability when the 'indorsement is in blank, may be interposed as a defence to the action." Ashe, J., Iredell v. Watson, 82 N. C. 312 ; citing Menden- hill u. Davis, 72 N. C. 150 ; Davis .;. Morgan, 64 N. C. 570. " Between the immediate parties, their understanding of the obligation assumed may be shown by parol proof of the facts and circumstances attend- ing the transaction, and the intention when ascertained will control and de- termine the liability." Smith, C. J., Hoffman v. Moore, 82 N. C. 316. See Hazzard v. Duke, 64 Ind. 220. It is to be observed that by courts holding that blank indorsements can- not be contradicted by parol, parol evidence invalidating the indorsement is admitted whenever such evidence assails consideration. Infra, § 1060 6 ; Woodward v. Foster, 18 Grat. 205. Thus, such evidence is received to show that the consideration was upon an unperformed condition. Goggerley V. Cuthbert, 2 B. & P. 170 ; Bell t. Ingestre, 12 Q. B. 317 ; Chaddock v. Vanness, 35 N. J. L. 517 ; or that it was made merely as an agent for remit- tance to the indorsee ; Pollock v. Brad- bury, 8 Moore, P. C. 227; or that it was merely for the accommodation of the party suing; Dale v. Gear, 38 Conn. 15. In Denton v. Peters, L. R. 5 Q. B. 475, it was held that to constitute a valid indorsement as against an im- mediate indorsee, it Is necessary that there should be (1) a writing of the indorser's name, and (2) a delivery of the paper by him to the indorsee with CHAP. XII.] VARIATION OF BILLS AND NOTES. [§ 1060. liabilities of the maker or indorsers, may be shown by parol.* intent not only to pass the property in it, but to guaranty the payment if the acceptor or maker refuse to pay. Parol evidence, therefore, is admissible either (1) to show forgery ; or (2) a non-delivery of the paper ; or (3) a delivery without the intent to pass the property, or (4) a delivery without in- tent to guaranty in case of acceptor or maker (as the case may be) is unable to pay. Thus, as in this particular ease, it was declared that if the de- fendant, after putting his name on the paper, had delivered it to an agent to collect the amount, this would not have made the defendant liable to such agent on the paper ; and so it was also held that the defendant would not be liable on such delivery, thongh the plaintiff was not a mere agent, but had an interest in the debt for which the paper was given, if the defendant had not signed for the purpose of trans- ferring title to the plaintiff as indorser. Such cases are analogous to delivery of goods to an agent as a mere go-between, in which no title passes to the agent, as there is no concurrence of minds in the passage of title, and, therefore, no sale. A memorandum, made on a bill or note before completion, providing that payment shall be contingent, is incor- porated in the paper on which it is entered. Byles on Bills, 100 ; citing Leeds v. Lancashire, 2 Camp. 205 ; Hartley v. Wilkinson, 4 M. & S. 505. But the operation of the paper is not affected by the memorandum when it is merely directory, " as if it point out the place of payment (Exton v. Rus- sell, 4 M. & S. 505) ; or be merely an expression of an intended courtesy, as if it intimate a wish that the money lent should not be called in by the payee's executors till three years after his death ; Stone v. Metcalf, 4 Camp. 217 ; 1 Starke, 53 ; or if it import that a collateral security has been given (Wise u. Charlton, 4 A. & E. 786 ; 6 N. & M. 364 ; Fancourt v. Thorne, 9 Q,. B. 312) ; or be intended only to identify and ear-mark the instrument (Brill V. Crick, 1 M. & W. 232) ;" Byles on Bills, lOI. An indorser is liable, according to the law of the place where the indorsement was made, such being also the place where the indorsement was payable. Whart. Conf. of L. §§ 454^6 ;■ Aymer v. Sheldon, 12 Wend. 439 ; Allen v. Bank, 22 Wend. 215. ' Leighton u. Bowen, 75 Me. 504; Barker v. Prentiss, 6 Mass. 430 ; King- man V. Kelsie, 3 Cush. 339 ; Riley o. Gerrish, 9 Cush. 104; Rohan o. Han- son, 11 Cush. 44 ; Crosman v. Fuller, 17 Pick. 171; Creech v. Byron, 115 Mass. 324 ; Case v. Spaulding, 24 Conn. 578 ; Schineler v. Muhlheisen, 45 Conn. 154 ; Graves v. Johnson, 48 Conn. 160; Scott v. Ocean Bank, 23 N. Y. 239 ; Milton v. R. R., 4 Lansing, 76 ; Bookstaver v. Jayne, 3 Thomp. & C. (N. Y.) 397; Watkins v. Kirkpat- rick, 26 N. J. L. 84 ; Petrie v. Clarke, 11 S. & R. 377; Walker o. Geisse, 4 Wh. 258 ; Depeau v. Waddington, 6 Wh. 220 ; S. C. 2 Am. Leading Cas. 155 ; Hoffman o. Miller, 1 Ibid. 676 ; Kirkpatrick v. Muirhead, 16 Penn. St. 123 ; National Bank v. Perry, 2 Weekly Notes, 484 ; Haile v. Pierce, 32 Md. 327; Peck ... Beckwith, 10 Ohio St. 497 ; Harris u. Pierce, 6 Ind. 162 ; Rawlings v. Fisher, 24 Ind. 52 ; Schmich v. Frank, 86 Ind. 250 ; Klep- per 1-. Borehsenius, 13 III. AppI 318 ; Collins o. Gilson, 29 Iowa, 61 ; Harri- son u. McKim, 18 Iowa, 485 ; Preston V. Gould, 64 Iowa, 44 ; Catlin v. Bir- chard, 13 Mich. 1-10 ; Elliott v. Elliott, 79 Ky. 277 ; Foulks v. Rhodes, 12 Nev. 249 § 1060.] THE LAW OF EVIDENCE. [book II. Kelations of parties with notice may be varied by parol. Hence, one of two makers of a promissory note may prove, as against parties with notice, that he was only a surety.' And as between the parties so liable, their re- lations may be shown by parol." Consideration, also, as between the parties, may be disputed.' 225; Carhart v. Wymi, 22 Ga. 24; Dixon V. Edwards, 48 Ga. 142 ; Branch. Bank v. Coleman, 20 Ala. 140 ; O'Leary V. Martin, 21 La. An. 389 ; Davidson V. Bodley, 27 La. An. 149 ; Smith «. Paris, 53 Mo. 274 ; Clarke o. Scott, 45 Col. 86 ; Bissenger t. Guiteman, 6 Heisk. 277. But if the question of the existence of an indorsement is at issue, parol evidence is admissible. Supra, §§ 927- 8, 1059. Hence parol evidence is ad- missible to prove that a party's name on a negotiable instrument is not an indorsement. Samarin v. CourrSgfi, 13 La. An. 25 ; Cole v. Smith, 29 La. An. 551. How far admissions may be received for this purpose, see infra, § 1163. >■ Hubbard v. Gurney, 64 N. Y. 457 ; overruling Campbell u. Tate, 7 Lans. 370, and Benjamin v. Arnold, 5 T. & C. 54 ; and relying on Archer v. Doug- lass, 5 Den. 509 ; Pintard v. Davis, 1 Zab. 632 ; Davis v. Barrington, 30 N. H. 517 ; Bank v. Hoge, 6 Ohio, 17 ; Schooley v. Fletcher, 45 Ind. 86 ; Por- ter u. Waltz, 108 Ind. 40; Guice v. Thornton, 76 Ala. 466. See supra, § 952 ; Houck v. Graham, 106 Ind. 195 ; see Mansfield u. Edwards, 136 Mass. 15 ; Stevens v. Oaks, 58 Mich. 343. 2 Adams v. Flanagan, 36 Vt. 400 ; Blake v. Cole, 22 Pick. 97 ; Monsen «. Drakeley, 40 Conn. 552 ; Wells v. Mil- ler, 66 N. Y. 255 ; Oldham „. Broom, 28 Ohio St. 41 ; Houck v. Graham, 106 Ind. 195. ' In Massachusetts, by the statute of 1874, 0. 404, "all persons becoming parties to promissory notes payable on time, by a signature in blank ou the 250 back thereof, shall be entitled to notice of the non-payment thereof the same as indorsers." Before this statute, it was held that such parties were original promisors, and that parol evidence was not admissible to show that they were to be treated as indorsers only. Allen V. Brown, 124 Mass. 77. See Gibson u. Machine Co., Id. 546 ; Browning v. Mer- ritt, 61 Ind. 220. " When a promissory note, made payable to a particular person or order, is first indorsed by athird person, such third person is held to be an original promisor, guarantor, or indorser, ac- cording to the nature of the transaction and the understanding of the parties at the time the transaction took place. " 1. If he put his name in blank on the back of the note at the time it was made and before it was Indorsed by the payee, to give the maker credit with the payee, or if he participated in the consideration of the note, he must be considered as a joint maker of the note. Schneider v, Schififman, 20 Mo. 571 ; Irish V. Cutler, 31 Me. 536. " 2. Reasonable doubt of the correct- ness of that rule cannot be entertained ; but if his indorsement was subsequent to the making of the note, and to the delivery of the same to take effect, and he put his name there at the request of the maker, pursuant to a contract of the maker with the payee for further indulgence or forbearance, he can only be held as guarantor, which can only be done where there is legal proof of consideration for the promise, unless it be shown that he was connected with the inception of the note. " 3. But if the note was intended for CHAP. XII.] PAROL VAEIATION OF BILLS AND NOTES. [§ 1060 a. § 1060 a. It may be determined by parol whether successive in- dorsers stand to each other as successively liable, in order of disconnt, and he put his name on the back of the note with the understand- ing of all the parties that his indorse- ment would be inoperative until the instrument was indorsed by the payee, he would then be liable only as a second indorser, in the commercial sense, and as such would clearly be entitled to the privileges which belong to such an in- dorser. " Considerable diversity of decision, it must be admitted , is found in the re- ported cases where the record presents the case of a blank indorsement by a third party, made before the instru- ment is indorsed by the payee and be- fore it is delivered to take effect, the question being whether the party is to be deemed an original promisor, guar- antor, or indorser. Irreconcilable con- flict exists in that regard ; but there is one principle upon the subject almost universally admitted by them all, and that is, that the interpretation of the contract ought in every case to be such as will carry into effect the intention of the parties, and in most cases it is ad- mitted that proof of the facts and cir- cumstances which took place at the time of the transaction is admissible to aid in the interpretation, of the lan- guage employed. Denton v. Peters, 5 a. B. 475. "Facts and circumstances attendant at the time of the contract was made are competent evidence for the purpose of placing the court in the same situa- tion, and giving the court the same advantages for construing the contract which were possessed by the actors. Cavazos v. Trevino, 6 Wall. 773. " Courts ^of justice may acquaint themselves with the facts and circum- stances that are the subjects of the statements in the written agreement, and are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, and so to judge of the meaning of the words and of the correct application of the language to the thing described. Shore v. Wilson, 9 CI. & Fin. 352 ; Clay- ton V. Grayson, 4 Nev. & M. 602 ; Ad- dison, Contr. (6th ed.) 918 ; 2 Taylor, Evid. (6th ed.) 1035. " Evidence to show that the indorse- ment of the defendant in this case was made before the instrument was in- dorsed by the payee or delivered to take effect was admitted without ob- jection ; but it is not necessary to rest the decision upon that suggestion, as it is clear that the evidence would have been admissible, even if seasonable ob- jection had been made to its compe- tency. Hopkins v. Leak, 12 Wend. (N. Y.) 105. " Like a deed or other written con- tract, a promissory note takes effect from delivery ; and, as the delivery is something that occurs subsequently to the execution of the instrument, it must necessarily be a question of fact when the delivery was made. Parol proof is, therefore, admissible to show when that took place, as it cannot ap- pear in the terms of the note. 2 Tay- lor, Evid. (6th ed.) 1001 ; Hall v. Caze- nove, 4 East, 477 ; Cooper v. Robinson, 10 Mee. & W. 694." Clifford, J., Good V. Martin, 95 U. S. 94, ff. " Where the indorsement is in blank, if made before the payee, the liability must be either as an original promisor or guarantor ; and parol proof is ad- missible to show whether the indorse- ment was made before the indorsement of the payee and before the instrument was delivered to take effect, or after the 251 §1060 a.] THE LAW OF EVIDENCE. [book II. And so of priority, or whether they are jointly liable, each for the sucMssive"^ quota agreed upon, or, in default of agreement, for their indoreers. respective proportions, share and share alike.' payee had become the holder of the same ; and, if before, then the party so indorsing tlie note may be charged as an original promisor, but if after tlie payee became the holder, then such a party can only be held as guarantor, unless the terms of the indorsement show that he intended to be liable only as a second indorser, in which event he is entitled to the privileges accorded to such an indorser by the commercial law." Clifford, J., Good v. Martin, 95 U. S. 97, 98; adopted in Hoffman «. Moore, 82 N. C. 313. 1 In Macdonald v. Whitfield, 8 H. L. & Pr. C. App. 733 (supra, § 1060), it ap- peared that the directors of a " china- ware" company at St. John's, province of Quebec, mutually agreed to become sureties to the Merchants' Bank of Canada for certain debts of the com- pany, and in pursuance of that agree- ment successively indorsed three prom- issory notes of the company. It was held by the Privy Council, in July, 1883 (present Lord Watson, Sir Barnes Peacock, Sir Robert P. Collier, and Sir Arthur Hobhouse), that the directors so indorsing were entitled and liable to equal contribution inter se, and were not liable to indemnify each other suc- cessively according to the priority of their indorsements. The opinion of the court was delivered by Lord Wat- son, who, after stating the facts, said ; " Their lordships see no reason to doubt that the liabilities inter se of the successive indorsers of a bill or prom- issory note must, in the absence of all evidence to the contrary, be determined according to the ordinary principles of the law-merchant. He who is proved or admitted to have made a prior in- dorsement must, according to these 252 principles, indemnify subsequent in- dorsers. But it is a well-established rule of law that the whole facts and circumstances attendant upon the mak- ing, issue, and transference of a bill or note may be legitimately referred to for the purpose of ascertaining the true relation to each other of the parties who put their signatures upon it, either as makers or as indorsers ; and that reasonable inferences, derived from these facts and circumstances, are admitted to the effect of qualifying, altering, or even inverting the relative liabilities which the law-merchant would otherwise assign to them. It is in accordance with that rule that the drawer of a bill is made liable in re- lief to the acceptor, wlien the facts and circumstances connected with the making and issue of the bill sustain the inference that it was accepted solely for the accommodation of the drawer. Even where the liability of the party, according to the law-mer- chant, is not altered or affected by ref- erence to such acts and circumstances, he may still obtain relief by showing that the party from whom he claims indemnity agreed to give it him ; but in that case he sets up an independent •and collateral guarantee, which he can only prove by means of a writing which will satisfy the statute of frauds." It has been held, also, in Massachu- setts that as between accommodation indorsers it is admissible to prove that they were, inter se, by agreement co- sureties. Clapp V. Rice, 13 Gray, 403 ; Sweet V. McAlister, 4 Allen, 355. " There appears to be no good reason why such evidence would not be ad- missible as well In an action upon the CHAP. XII.] PAROL VARIATION OF BILLS AND NOTES. [§ 106,0 6. § 1060 b. As between the parties, the consideration stated in ne- gotiable paper may be disputed, the existence of any consideration denied, the failure of consideration proved ; yon miy be or another consideration than that stated may be set up.^ inquired •' "^ into. Consideration can always be inquired into between im- mediate parties and their privies, but, unlike the law as to other contracts not under, seal, the law as to the instruments mentioned raises in every case a presumption of the existence of a valid and sufficient consideration.' This presumption arises independently of the recited " value received."^ As parties in this sense are joint makers of a note,* the maker and payee of a note ; and the indorser and immediate indorsee of a bill or note." Between such parties, when a primd facie case of inadequate consideration is made out, the burden to show consideration is on the plaintiff;^ and so paper by one of the accommodation parties against another as indorser, as in an action for contribution, like Clapp V. Rice. The evidence would not vary the contract, but, admitting its efficacy, would show how the parties had agreed to bear the burden of it if need were." Bigelow, Bills and Notes, 169, citing Easterly v. Barber, 66 N. Y. 433 ; Mc- Neilly v. Patohin, 23 Mo. 40, and other cases. And see Edelen u. White, 6 Barb. 408 ; Griffith v. Reed, 21 Wend. 502 ; Davis „. Morgan, 64 N. C. 570. That indorsers may be shown to be co- sureties see, also, Paul v. Rider, 58 N. H. 119 ; Nurre v. Chittenden, 56 Ind. 462 ; Melms <;. Wirdekoff, 14 Wis. 18. See supra, § 952. Cf. Phillips v. Pres- ton, 5 How. U. S. 278. In Pennsylvania, however, it is said that in a suit by a second indorser against a first indorser, it would con- travene the statute of frauds to permit the defendant to show by parol that the plaintiff was surety of the maker. Hauer v. Patterson, 84 Penn. St. 254; supra, § 952. 1 Supra, §§1044,1060; Story on Bills, § 188 ; Abbott v. Hendricks, 1 M. & G. 795 ; Barker v. Prentiss, 6 Mass. 791 ; Barnet v. Offerman, 7 Watts, 130 ; Jones I. Horner, 60 Penn. St. 214 ; Clarke v. Dedrick, 31 Md. 148 ; Jones v. Buffum, 50 111. 277 ; Foster v. Clifford, 49 Wis. 569 ; Ramsay v. Young, 69 Ala. 157 ; Matlock V. Livingston, 9 Sm. & M. 489 ; Cocke V. Blackburne, 57 Miss. 689. That it is between the parties a de- fence that the consideration was an un- performed condition. See Ball v. In- gestie, 12 Q,. B. 317 ; Goggerley v. Cuth- bert, 2 B. & P. 170 ; and other cases cited supra, § 1059. 2 Bigelow, Bills and Notes, 89, citing Dean v. Carruth, 108 Mass. 242. 3 Hatch V. Frayes, 11 Ad. & El. 702 ; Townsend i,. Derby, 3 Met. 363 ; Story on Bills, § 187 ; Greenl. on Ev. § 271. * Robertson v. Deatherage, 82 111. 511 ; see more fully supra, § 1060. 6 See Daniel on Neg. Inst. § 174 Easton v. Pratchett, 1 C, M. & R. 798 Holiday v. Atkinson, 5 B. & C. 501 Abbott V. Hendricks, 1 M. & Gr. 791 dementi). Reppard, 15 Penn. St. 111. As to admissions in such cases see in- fra, § 1163. 6 Conway I'. Maofarlane, 97 Penn. St. 631. See Moore v. Hershey, 90 Penn. St. 196 ; Zook v. Simonson, 72 Ind. 88 ; Holmes «. Cook, 50 Wis. 172 ; Holen- dyke v. Newton, 50 Wis. 635. 253 § 1061.] THE LAW OP EVIDENCE. [BOOK II. in a suit between indorser and indorsee.' When, however, the is- sue of consideration is made, then it is to be decided by preponde- rance of proof.* Want of consideration, however, cannot be set up by the maker of a note against an indorsee ; nor by a prior but not his immediate indorser against an indorsee ; nor by the acceptor of a bill against the payee ; unless the plaintiff's title be in some way disgraced, or he be shown to have notice of want of consideration, or to have taken the bill after maturity." The notice which taints the remote holder of negotiable paper, not overdue when taken by him, with complicity in such a way as to require him to prove con- sideration, must be something more than failure to inquire as to floating rumors of the unreliable character of the antecedent party from "whom payment is claimed.* Purchase by an indorsee must be for value before maturity.* § 1061. It is elsewhere observed that, on suing on a written con- j, tract, an undisclosed party may be shown by parol to be ties may the real plaintiff, though not in such a way as to cut off out by the defendant from any defence he might otherwise have '^^™^' against the agent, who is the nominal plaintiff. It is also shown that a plaintiff, suing a nominal party to a contract, may, in order to charge an undisclosed principal, prove by parol the ex- istence of such principal, but that such nominal party cannot intro- duce such proof in order to relieve himself from liability.* There is no reason why the same distinction should not apply to negotiable paper, as between parties with notice, so far, at least, as to make 1 Sheedy v. Sweeter, 70 Mo. 679. S. 541-2 ; citing Murray v. Lardner, 2 2 Delano v. Bartleby, 6 Cush. 367 ; Wall. 110 ; Collins ii. Gilbert, 94 U. S. Noxon V. De Wolf, 10 Gray, 343. See 752 ; Brown .;. Spofiford, 95 U. S. 474. Small V. Clewly, 62 Me. 155. See, also, Story on Bills, § 178 ; 2 Greenl. ' Story on Bills, § 188 ; Byles on on Ev. § 172. Bills, 127 ff ; Hunter v. Wilson, 4 Exoh. « Goetz v. Bank, 111 U. S. 551. 489 ; Hoflfman . Solomon, 2 Ga. 18. 9 Supra, §§ 923, 1078; Carter w. Car- ter, 1 K. & ,T. 649. That non-contract- ual admissions are only primd facie and CHAP. XIII.] admissions: general rules. [§ 1090. mission as hearsay affects the admission has been already consid- ered.' § 1089. To admit a non-contractual admission, offered in evidence merely to relieve the party offering it from proving a par- ticular part of his case, the admission must be specific.^ mlesioa" Thus the admission of a "debt" due the plaintiff will must be' . '■ specmc. not be sutncient proof to support an account presented by plaintiff to defendant in connection -with which the general ad- mission was made ;* though an admission as to a particular account may be evidence on which it may be sustained.'' Nor will an ad- mission of the genuineness of a signature avail against a party to whom the paper containing the signature was not shown." § 1090. An implied admission of liability made as part of the ne- gotiations for a compromise, expressly for the purposes of peace (whether or no such admission be made under adrnTssions the technical proviso "without preiudice"'), will not be made for purpose of received in evidence against the party by whom it is compro- made, when its object was merely to suggest a scheme missibie of settlement. The policy of the law favors amicable ^^8e°as to settlements of litigation, and therefore protects negotia- admission tions bond fide made for the purpose of effecting such settlements.* Aside from the reason just mentioned, it may be well rebuttable evidence against the party making them, see supra, §§ 1077-8 ; ,and see Baker v. Dewey, 1 B. & C. 704 ; Stratton v. Rastall, 2 T. R. .366 ; Reeve v. 'Whitmore, 2 Dr. & S. 450. 1 Supra, § 1079. 2 Chambers Co. v. Clews, 21 'Wall. 317 ; Ripley v. Paige, 12 Vt. 353 ; Clar- endon V. 'Weston, 16 Vt. 332 ; Smith v. Jones, 15 Johns. R. 229 ; Smith v. Smith, 1 Greene (Iowa), 307 ; Wat- son V. Byers, 6 Ala. 393. Supra, § 1082. 3 Green v. Davis, 4 B. & C. 235 ; Lane v. Hill, 18 Q. B. 252; U. S. x^. Kuhn, 4 Cranch C. C. 401 ; Gibney v. Marohay, 34 N. Y. 301 ; Quarles v. Lit- tlepage, 2 Hen. & M. 401 ; Douglass v. Davie, 2 McCord, 219. ' Peacock v. Harris, 10 East, 104 ; ■Vinal V. Burrill, 16 Pick. 401 ; Sugar u. Davis, 13 Ga. 462. 6 Infra, § 1095. « Hoghton V. Hoghton, 15 Beav. 321 ; Cory V. Bretton, 4 C. & P. 462 ; Healey u. Thatcher, 8 C. & P. 388 ; Paddock v. Forrester, 3 M. & Gr. 903 ; 3 Scott N. R. 734 ; Cassey v. R. R., L. R. 5 0. P. 146 ; Skinner'u. R. R., L. R. 9 Ex. 298 ; MoCorquodale v. Bell, L. R. 1 C. P. D. 471 ; Home Ins. Co. u. Baltimore, 93 U. S. 527 ; Rowell v. Montville, 4 Greenl. 270 ; Rideout v. Newton, 17 N. H. 71 ; Perkins v. Concord R. R., 44 N. H. 223 ; Gerrish v. Sweetser, 4 Pick. 374 ; Batch- elder V. Batchelder, 2 Allen, 105 ; Saun- ders V. McCarthy, 8 Allen, 42 ; Harring- ton u. Lincoln, 4 Gray, 563 ; Gay v. Bates, 99 Mass. 263 ; Durgin v. Somers, 117 Mass. 55 ; Draper v. Hatfield, 124 287 § 1090.] THE LAW OF EVIDENCE. [BOOIC III. argued that where the communication is made because the party is ready to oifer a sacrifice for the sake of peace, this cannot be re- garded as the admission of a right in the other side.^ It has been also held that the admission of a party in a case stated for the Mass. 53 ; Daniels v. Woonsooket, 11 R. I. 4 ; Williams v. Thorp, 8 Cow. 201 ; Payne ii. R. R., 40 N. Y. Sup. Ct. 8 ; Wrege v. Westoott, 30 N. J. L'. 212; Slooum V. Perkins, 3 S. & R. 295 ; Tryon V. Miller, 11 Whart. 11 ; Arthur v. James, 28 Penn. St. 236 ; Reynolds u. Manning, 15 Md. 510 ; Paulin v. How- ser, 63 111. 312 ; Barker v. Bushnell, 75 111. 220 ; Kinsey v. Grimes, 7 Blackf. 290; Dailey v. Coons, 64 Ind. 545; Munshink o. R. R., 57 Iowa, 718 ; Camphan u. Dubois, 39 Mich. 274 ; State u. Dutton, 11 Wis. 371 ; Rich- ards vx Noyes, 44 Wis. 609 ; Watson V. Williams, Harper, 447 ; Keaton u. Mayo, 71 Ga. 649 ; Wilson v. Hiues, 1 Minor (Ala.), 255 ; Williams v. State, 52 Ala. 411 ; Jackson v. Clopton, 66 Ala. 29 ; Ferry v. Taylor, 33 Mo. 323. In Paddock v. Forrester, 3 Mann. & G. 903, 919, it was held that where a letter expressed to be without preju- dice is replied to, neither the letter nor the reply is admissible, even though the reply is not expressed to be with- out prejudice. Tindal, C. J., said: "It is of great importance that par- ties should be left unfettered by cor- respondence which has been entered into upon the understanding that it is to be without prejudice." 1 Underwood v. Courtown, 2 Sch. & Lef. 67 ; Thomson v. Austen, 2 D. & R. 361 ; Robinson v. R. R., 7 Gray, 92. Supra, § 1082. In Hoghton u. Hoghton, 15 Beav. 278, 321, before Sir John Romilly, certain letters were written after the dispute had arisen, with a view to a compromise, and "without prejudice." Their admission being objected to, it 288 was said that, if rejected, the court would have before it only part of the correspondence. " Such communica- tions, made with a view to an amicable arrangement, ought to be held very sacred ; for if parties were to be after- wards prejudiced by their efforts to compromise, it would be impossible to attempt an amicable arrangement of differences." In Jones v. Foxall, 15 Beav. 388, which was a suit for a breach of trust, Sir John Romilly said : " I have paid no attention to the correspondence and negotiations which occurred. ... I find that the offers were in fact made without prejudice to the rights of the par- ties. I shall, as far as I am able, in all cases endeavor to repress a, practice which, when I was first acquainted with the profession, was never ven- tured upon, but which, according to my experience in this place, has be- come common of late, viz., that of attempting to convert offers of com- promise into admissions or acts preju- dicial to the persons making them. If this were permitted, the effect would be that no attempt to compromise a dis- pute could ever be made. ... In my opinion, such letters and offers are ad- missible for one purpose only, namely, to show that an attempt has been made to compromise the suit, which may sometimes be necessary ; as, for in- stance, in order to account for a lapse of time ; but never for the purpose of fixing the person making them with any admissions contained in such let- ters. And I shall do all I can to dis- courage this modern, and, as I think, most injurious practice." CHAP. XIII.] ADMISSIONS IN OFFERS OF COMPROMISE. [§ 1090. opiaion of the court cannot afterwards be used against him.^ If, however, in a negotiation between litigants, a fact is conceded as true, such concession not being made " without prejudice," or hypo- thetically, or as a condition in a pending treaty,^ the admission may be afterwards used, for what it is worth, against the party by whom it is made.' When such negotiations are admitted in part, however, all the relevant conditions, if called for, must be proved.* And when an offer is made in a letter written " without prejudice," and such offer is accepted," or when an admission is made in such a letter subject to a condition, and such condition has been per- formed,* then the letter can be used in evidence against the writer, notwithstanding that it was written "without prejudice."' But when a letter is written as an offer of compromise, and is not accepted, no part is admissible.' 1 Hart's Appeal, 8 Penn. St. 32. 2 Lofts V. Hudson, 2 M. & R. 481 ; West V. Smith, 101 U. S. 263. ' Nicholson v. Smith, 3 Stark. R. 129 ; Wallace v. Small, M. & M. 446 ; Unthauk v. Ins. Co., 4 Biss. 357 ; Home Ins. Co. V. Bait. Co., 93 U. S. 527 ; Cole c Cole, 33 Me. 542 ; Hamblett v. Ham- blett, 6 N. H. 333 ; Perkins v. Concord, 44 N. H. 223 ; Eastman v. Amoskeag, 44 N. H. 143 ; Plummer v. Currier, 52 N. H. 282 ; Doon v. Ravey, 49 Vt. 293 ; Marsh v. Gold, 2 Pick. 285 ; Gerrish ■;. Sweetser, 2 Pick. 374 ; Durgin v. Som- ers, 117 Mass. 55 ; Hartford Bridge Co. ?'. Granger, 4 Conn. 142 ; Fuller v. Hampton, 5 Conn. 416 ; Murray v. Coster, 4 Cow. 635 ; Marvin v. Rich- mond, 3 Denio, 58 ; Sailor v. Hertzogg, 2 Penn. St. 182 ; Holler v. Weiner, 15 Penn. St. 242 ; Arthur v. James, 28 Penn. St. 236 ; Cates v. Kellogg, 9 Ind. 506; Ashlock v. Linder, 50 111. 169 Campan v. Dubois, 39 Mich. 274 Church V. Steele, 1 A. K. Marsh. 328 Mayor v. Howard, 6 Ga. 213 ; Prussel V. Knowles, 5 Miss. 90 ; Garner v. My- rick, 30 Mi^s. 448 ; Delogny v. Rentonl, 2 Mart. La. 175. See Short Mountain VOL. II. — 19 Co. V. Hardy, 114 Mass. 197; Moly- neaux u. Collier, 13 Ga. 406. Supra, § 1082. See White o. Steamship Co., 102 N. Y. 660. In Clapp 0. Foster, 34 Vt. 580, the court admitted evidence that the de- fendant offered to settle the plaintiff's claim if the latter would consent to a continuance. See, also, Grubbs v. Nye, 21 Miss. 443. In Cuming v. French, 2 Camp. 106, n., an offer to settle a note was held prBnd facie proof of authen- ticity of signature. In Thomas v. Morgan, 2 C, M. & R. 496; S. C. Tyr. 1085, which was an action for injury to cattle through de- fendant's mischievous dogs, an offer to settle was held admissible as some evi- dence of scienter, but to be entitled to but little weight, as the offer may have been prompted by mere charity. * Scott V. Young, 4 Paige, 542. 6 In re River Steamer Co., L. R. 6 Ch. 822 ; 19 W. R. 1130. 6 Holdsworth v. Dimsdale, 19 W. R. 798 ; Collier v. Nokes, 2 C. & K. 1012. ' Powell's Evidence, 4th ed. 269. 8 Home Ins. Co. v. Bait. Co., 93 U. S. 527. 289 § 1092.] THE LAW OF EVIDENCE. [BOOK III. § 1091. For a long time it was an open and much-agitated ques- „ , , , tion in England whether the admisaion by a party of the Party's ad- ° . , . mission contents of a written instrument could be received in Se^Ts^of derogation of the principle that such instruments cannot writing. ^^ proved by parol. After numerous conflicting dicta and rulings at nisi prius, the question came before the Court of Exchequer in 1840. It was then ruled, that " whatever a party says, or his acts amounting to admissions, are evidence against him- self, though such admissions may involve what must necessarily he contained in some deed or writing." . . . . " The reason why such parol statements are admissible, without notice to produce, or ac- counting for the absence of, the written instrument, is, that they are not open to the same objection which belongs to parol evidence from other sources, where the written evidence might have been pro- duced ; for such evidence is excluded, from the presumption of un- truth arising from the very nature of the case, where better evi- dence is withheld ; whereas what a party himself admits to be true may be reasonably presumed to be so. The weight and value of such testimony is another question. That will vary according to the circumstances, and it may be in some cases quite unsatisfactory to a jury. But it is enough for the present purpose to say that the evidence is admissible."' § 1092. It is true that much exception has been taken to this modification of the rule that a written instrument cannot must go to be proved by parol, and it has been urged that the ex- ^'''^' ception will eat away the rule. The exception, however, is sanctioned by the high authority of the present English practice ; though it is said the witness when a party ought not to be compelled to testify as to the contents of such instruments.' The same general 1 Slatterie v. Pooley, 6 M. & W. on a written contract, there was evidence 664; Parke, B. See, as to same effect, of the express authority of the defend- Howard v. Smith, 3 Scott N, R. 574 ; ant to enter into the contract, of the Boulter v. Peplow, 9 C. B. 493 ; Pritch- execution thereof, and tliat thedefend- ard V. Bagshawe, 11 C. B. 459 ; Kingw. ant, when informed of the amount paid, Cole, 2 Exch. 628 ; Boileau t/. Rutlin, did not dispute his liability, that the 2 Exch. 665 ; Murray v. Gregory, 5 contract need not be put in evidence. Exch. 468 ; R. v. Basingstoke, 14 Q. B. Chappell v. Bray, 6 H. & N. 145. 611; Ansellw. Baker, 3 C. &K. 145. 2 Darby v. Ously, 1 H. & N. 1 ; It has been also held, where, on an ac- Powell's Evidence, 4th ed. 310. But tion for contribution towards money paid see supra, §480. 290 CHAP. XIII.] ADMISSIONS TO PROVE DOCUMENTS. [§ 1093. conclusion has been reached in the United States, so far, at least, as to hold that. the contents of a document, not requiring the attes- tation of witnesses, may be proved by admissions.^ But in any view, the statement relied on must be distinctly a statement of fact, and not merely an opinion or inference of law by the deponent.^ It must be an admission of a fact as distinguished from the admis- sion of a rights § 1093. It has, however, been with much force objected,* that to permit such parol evidence to be equally admissible, ^^^^ ^^ in proof of the contents of the instrument, with the missions instrument itself, when duly proved, is to open a vast strictly field for misapprehension, perjury, and fraud, which ^"^'' ® ' would be wholly closed if the salutary rule of law, requiring that what is in writing should be proved by the writing itself, were here, as in other cases, to prevail. We are also reminded that Lord Tenterden, and Maule, J., have pointedly condemned this relaxation of the old practice ;" and that even Parke, B., to whom the relax- ation is mainly due, has questioned whether such admissions may not be sometimes quite unsatisfactory to a jury ;® while the same acute reasoner qualified his own conclusions by reverting to the elementary principles we have already noticed,' as to the treach- erous character of this kind of proof.* For, to apply these prin- ' See Smith v. Palmer, 5 Cush. 513 ; proof of loss required to be furnished to Loomis o. Wadhams, 8 Gray, 657 ; the company, undertaking to set forth Criohton v. Smith, 34 Md. 42; Taylor the insurance existing on the premises, V. Peck, 21Grat. 11. For other rulings may be received to prove the existence bearing on the same question see New of the policy. Cumberland Ins. Co. v. York Ice Co. v. Parker, 8 Bosw. 688 ; Giltinan, 48 N. J. L. 495. Robinson v. Schuy. Nav. Co., 3 Grant, ^ Morgan v. Gouchman, 14 C. B. 101 ; 186 ; Taylor v. Henderson, 38 Penn. St. Goodell v. Smith, 9 Cush. 492. 60 ; Gay u. Lloyd, 1 Greene (Iowa), 78 ; ' See supra, § 1082 ; Bloxam u. El- Bivins v. McElroy, 11 Ark. 23 ; Brooks see, 1 C. & P. 558 ; R. & M. 187. V. IsbeU, 22 Ark. 488 ; Ward v. Valen- * Taylor's Ev. § 382. tine, 7 La. An. 184. An outstanding 6 Bloxam w. Elsee, wt supra; Boulter equity in laud, it has been held, may v. Peplow, 9 Com. B. 501. be proved by a party's 'admission. « gjatterie w. Pooley, 6 M. & W. 669. Lewis V. Harris, 31 Ala. 689 ; Warfield ' Supra, § 318. R. V. Newton, 2 M. & Rob. 503, per Wightman and Cresswell, JJ. ; 1 C. & Kir. 164; S. C. mm. R. v. Sim- monsto. But see R. v. Flaherty, 2 C. & Kir. 782 ; and supra, §§ 83 et seq., and infra, § 1297. 8 Brodie v. Brodie, 2 Sw. & Tr. 259 ; Ennis v. Smith, 14 How. 400 ; Kennedy V. Ryall, 67 N. Y. 380. 293 § 1099.] THE LAW OP EVIDENCE. [book III. Declara- tions as to domioil ad- mieBible. But not record facts. of proof is admissible, even when parties are alive, for the purpose of determining intent.* But mere vague unexecuted expressions of intent cannot be so received.^ And a wife's casual declarations cannot bind her husband.' § 1098. We have seen elsewhere that an admission, whether under oath on an examination or otherwise, is not admissible to prove record facts.* It is at the same time competent to show by admissions the consequences of facts stated by record. Thus a witness can be asked whether he has not been in prison." So, in an action for wages, an admission by the plaintiff that his claim had been referred to an arbitrator, who had made an award against him, has been held admissible evi- dence on behalf of the defendant.* § 1099. An admission, as well as a confession, made under duress, is inadmissible,' though the mere proof of undue ^ons'under ii^Aience leading to admissions does not in civil cases, as duress in- Jt may in criminal, exclude such admissions.' Unless, admissible. . . i p i however, otherwise provided by statute, the tact that an answer was extorted from a witness, when under examination in a court of justice, does not preclude its reception in evidence against him in a civil issue f and the same rule applies to an admission ob- tained through a bill in equity.'" Even though a witness is pre- i Thorndike v. Boston, 1 Met. (Mass.) 242; Kilburne v. Bennett, 3 Met. (Mass.) 199; Wright i,. Boston, 126 Mass. 161 ; Weld v. Boston, Ibid. 166 ; Burgess v. Clark, 3 Ind. 250. See su- pra, §§ 482, 1093 a. 2 Bangor v. Brewer, 47 Me. 97 ; Harvard College v. Gore, 5 Pick. 370. See Lord Summerville's case, 5 Ves. 750 ; Anderson u. Lanenville, 9 Moo. P. C. 325 ; Moke v. Fellman, 17 Tex. 367 ; Wharton, Confl. of Laws, § 62. The date of a contract has been held to be admissible, as one among other incidents to make up a presumption of domioil at a particular place. Lougee V. Washburn, 16 N. H. 134 ; Cavendish .,. Troy, 41 Vt. 99. " Parsons v. Bangor, 61 Me. 457. * Supra, §§ 63, 64, 541, 991, 1094. 294 5 Supra, §§ 541, 991. 5 Murray v. Gregory, 5 Exch. R. 468. ' Stockflesh v. De Tastet, 4 Camp. 11 ; Robson v. Alexander, 1 M. & P. 448; Tilley v. Damon, 11 Cush. 247; Foss V. Hildreth, 10 Allen, 76. Supra, § 931. As to proof of duress, see Sny- der V. Bradeu, 58 Ind. 143. " Newhall v. Jenkins, 2 Gray, 562. 3 Supra, § 488 ; infra, § 1120 ; Grant 0. Jackson, Pea. R. 203 ; Ashmore c. Hardy, 7 C. & P. 601. AUter in crimi- nal trials where the defendant is con- fronted by confessions of crime drawn from him as a witness in a prior judi- cial proceeding. Whart. Crim. Ev. § 664. lo Bates v. Townsley, 2 Ex. R. 157. Infra, §§ 1109, 1119, 1122. CHAP. XIII.] admissions: not evidence for declarant. [§1101. vented from explaining his testimony at trial, suoh testimony can afterwards be used against him.' § 1100. The extra-judicial writings of a party, according to the Roman standards, cannot be received in his favor, quia „ , , . . ^ Party's nullus idoneus testis m re sua intelligitur.^ Hence statements comes the maxim, Scriptura pro scribente nihil probat.' serving in- When oifered against a party making them, such writ- ^y Roman ings are evidence, not because they are writings, but l^^- because they are admissions made by a party against his interest. To the rule that such statements cannot be received to further the interests of the party producing them, the Roman practice notes the following exceptions : merchants' books of original entries, when verified by the party's oath ;* and papers forming part of those produced by the opposite party. But, as a general rule, statements made by a party out of court, in his own favor, cannot be received on trial to prove his case." § 1101. By our own courts the same conclusions have been reached. A party's self-serving declarations cannot be , , put in evidence in his own favor, whether he be living our own or dead at the trial. Nor is the result changed by the statutes enabling a party to be called as a witness in his own behalf. That which he could prove by his sworn statements he is not per- mitted to prove by statements which are unsworn. In any view, therefore, the extra-judicial self-serving declarations of a party are inadmissible for him, with the exceptions hereafter stated, as evi- dence to prove his case.' Thus, the declarations of a person in pos- 1 Collett V. Keith, 4 Esp. 212. See « Handy v. Call, 30 Me. 9 ; Buswell MUward v. Forbes, 4 Esp. 171. Infra, v. Davis, 10 N. H. 413 ; Judd v. Brent- § 1120. wood, 46 N. H. 430 ; Baird v. Fletcher, 2 L. 10, D. xxii. 5. 60 Vt. 603 ; Jacobs «. Whitcomb, 10 ■> See more fully supra, §§ 170, 265 ; Cush. 255 ; Nourse v. Nourse, 116 Mass. and see James v. Stookey, 2 Wash. C. 101 ; Whitney v. Houghton, 125 Mass. C. 139 ; Proprietary v. Ralston, i Call. 451 ; Fay v. Harlan, 128 Mass. 244 ; 18 ; Framingham Co. v. Barnard, 2 North Stonington v. Stonington, 31 Pick. 532 ; Robinson u. R. R., 7 Gray, Conn. 412 ; Downs v. R. R., 47 N. Y. 92 ; Bailey v. Wakeman, 2 Denio, 220 ; 83 ; Duvall u. Darby, 38 Penn. St. 56 ; Beach v. Wheeler, 24 Penu. St. 212; Graham v. Hollinger, 46 Penn. St. 65 ; Douglass V. Mitchell, 35 Penn. St. 440 ; Schenck v. Sithoff, 75 Ind. 485 ; Craig Nourse v. Nourse, 116 Mass. 101. v. Miller, 103 111. 605 ; Murray v. Cone, ' See supra, § 678. 26 Iowa, 276 ; Hogsett v. Ellis, 17 Mich. 5 Supra, §§ 619, 736. 351 ; Young v. Perkins, 29 Minn. 173 ; 295 § 1102.] THE LAW OF EVIDENCE. [book III. session of land, in support of his own title, are inadmissible,* and so are self-serving declarations of possessors of chattels,* and so is the declaration of an alleged cestui que trust, not made in the alleged trustee's presence, when the object is to establish the trust.' By the same rule a party sued on an alleged loan cannot put in evidence his declaration at the time of the loan to prove that his pecuniary condition was such as to make it improbable that he would borrow money.* § 1102. It may, however, happen that statements of a party are so interwoven with a contract as to form part of it, or are so wrought up in a transaction that they form a necessary incident of any narrative of such transaction. In such case the party's declarations are admissible, as we have already seen, as part of the res gestae.^ Self-serving declarations, therefore, are admissible as part of a trans- action, and they are so whenever they are its incidental emanations ; whenever, in other words, they were uttered instinctively, the trans- action speaking through them, not they speaking about the transac- tion. If, on the other hand, instead of being the immediate reflex of the transaction, they are uttered after there has been time for concoction, they are inadmissible.' This is so in torts as well as Except when part of the res gestae or explana- tory of condition and title. White V. Green, 5 Jones (N. C), L. 47 ; Gordon v. Clapp, 38 Ala. 357; Marx v. Bell, 48 Ala. 497 ; Berney v. State, 69 Ala. 220 ; Heard v. McKee, 26 Ga. 332 ; Bowie V. Maddox, 29 Ga. 285 ; Hall v. State, 48 Ga. 607 ; Williams t>. English, 64 Ga. 546 ; Arthur v. Gordon, 67 Ga. 364 ; Tucker v. Hood, 2 Bush, 85 ; Les- ter V. WooUey, 57 Tenn. 358 ; Barrett V. Donnelly, 38 Mo. 492 ; Rice v. Cun- ningham, 29 Cal. 492. 1 Peabody v. Hewett, 52 Me. 33 ; Mor- rill V. Titoomb, 8 Allen, 100 ; Jackson !/. Cris, 11 Johns. R. 437 ; Hedrick v. Gobble, 63 N. C. 48 ; Salmons v. Da- vis, 29 Mo. 176 ; and cases cited infra, § 1168. 2 Bradley v. Spofford, 23 N. H. 444 ; Swindell v. Warden, 7 Jones L. 575 ; Turner v. Belden, 9 Mo. 787. 3 Com. V. Kreager, 78 Penn. St. 477. 296 * Douglass V. Mltohell, 35 Penn. St. 440. 6 See supra, §§ 258, 264 ; Milne v. Leisler, 7 H. & N. 786 ; Green v. Bedell, 48 N. H. 646 ; Blake v. Damon, 103 Mass. 199 ; Beardslee v. Richardson, 11 Wend. 25 ; Ahern v. Goodspeed, 72 N. Y. 108 ; Tompkins v. Saltmarsh, 14 Serg. & R. 275 ; Louden v. Blythe, 16 Penn. St. 532 ; Potts ». Everhardt, 26 Penn. St. 493 ; Scott v. Shaler, 28 Grat. 89 ; Mitchell v. Colglazier, 106 Ind. 464 ; Pjirkiss v. Benson, 28 Mich. 538 ; Stephens!). McCloy, 36 Iowa, 659 ; Bass V. R. R., 42 Wis. 654 ; Allen v. Seyfried, 43 Wis. 414 ; Hart v. Freeman, 42 Ala. 567 ; Head w. State, 44 Miss. 731 ; Sher- ley V. Billings, 8 Bush, 147 ; Tevis u. Hicks, 41 Cal. 123 ; Colquitt v. State, 34 Tex. 550. ' Supra, § 262. CHAP. XIII.] ADMISSIONS: WHOLE CONTEXT MUST GO IN. [§ 1103. contracts.* Declarations, however, when received as part of the res gestae, are admitted, not to prove their own truth, but to exhibit the attitude of the parties, and to show the transaction in all its aspects. Thus, where the question was whether the defendant had acquired a right of way over a field belonging to the plaintiff, it was held, in Connecticut, admissible for the plaintiff to put in evidence his declarations while ploughing the field, that the party claiming the right of way had no such right, but only used the same by the owner's permission ; the evidence being received not as proof of the assertion, but as showing that the act of ploughing was the assertion of a right inconsistent with the alleged right of way.^ On the same reasoning may be admitted statements made by a party in possession as to his boundaries,' and as to the nature of his title. ^ And state- ments in taking possession of property may be in like manner ad- missible.' But such declarations are inadmissible when conflicting with record title.* Another exception to the rule is to be found in the reception, under the limitations already noticed, of a party's dec- larations as to his physical or mental condition, when ^henTtat- such are in controversy.'' Such declarations, also, may ingsymp- be received to fix a date.' fixing § 1103. A party offering a written admission of his dates. opponent, must offer the whole ; a part cannot be picked The whole , , , , , , ~ i-p • 11 context of out, but the whole context, so tar as quahtying the sense, a written must be introduced.' The admission of part of an ac- ^^['^e° 1 See supra, § 263 ; Fellowes v. Wil- liamson, M. & M. 306 ; Polston v. See, 54 Mo. 291. 2 Sears v. Hayt, 37 Conn. 406. See Carrig v. Oaks, 110 Mass. 144 ; Hardy V. Moore, 62 Iowa, 65. 3 Abel V. Van Gelder, 36 N. Y. 513 ; Sheafer a. Eastman, 56 Penu. St. 144. * Hale V. Rich, 48 Vt. 217 ; Moore v. Hamilton, 44 N. Y. 666. See Newlin v. Lyon, 49 N. Y. 661 ; Pier v. Duff, 63 Penn. St. 59 ; and so of declarations of deceased persons cognizant of land, su- pra, §§ 191, 248 ; Susq. R. R. v. Quick, 68 Penn. St. 189. » Supra, § 262. 6 Infra, 1157. ' Supra, § 268-9. 8 Com. V. Sullivan, 123 Mass. 221. 9 Supra, §§ 617-620, 924; Bermon u. Woodbridge, 2 Dougl. 788 ; Ld. Bath v. Bathersea, 5 Mod. 10 ; Cobbett w. Grey, 4 Ex. R. 729 ; Peroival a. Caney, 4 De Gex & Sm. 622 ; Pennell v. Meyer, 2 M. & Rob. 98 ; Mut. Ins. Co. v. Newton, 22 Wall. 32 ; Storer v. Gowen, 18 Me. 174 ; Webster v. Calden, 55 Me. 165 ; Whitwell V. Wyer, 11 Mass. 6 ; Lynde V. McGregor, 13 Allen, 172 ; Hopkins V. Smith, 11 Johns. R. 161 ; Gilder- sleeve V, Mahony, 5 Duer, 383 ; Clark V. Crego, 47 Barb. 599 ; Barnes v. 297 § 1103.] THK LAW OP EVIDENCE. [book III. proved, count, for instance, involves the admission of the whole.' toterde^^ This, however, does not require the admission of distinct w^tlngs irrelevant items in account books f nor other writings in the same letter-book or compilation.* A letter can be put in evidence without offering that to which it was a reply ,^ though if what purports to be an entire correspondence be offered, it must be offered complete,' and if a letter is put in, this carries with it all memoranda on the letter f nor can a writing go in evi- dence without carrying with it its indorsements.' A letter addressed to a party, found in his possession, cannot be put in evidence with- out showing he replied to it, or in some other way acquiesced in its contents.' But interdependent documents are to be read together.' Allen, 1 Abb. (N. Y.) App. Ill ; Blair V. Hum, 2 Rawle, 104 ; Searles v. Thompson, 18 Minn. 316 ; Satterlee v. Bliss, 36 Cal. 489 ; People v. Murphy, 39 Cal. 52 ; Harrison v. Henderson, 12 Ga. 19 ; Jordan v. Pollock, 14 Ga. 145 ; Fitzpatriok v. Harris, 8 Ala. 32 ; How- ard <^. Newsom, 5 Mo. 523. See Harri- son V. Henderson, 12 Ga. 19 ; Spanagel V. Bellinger, 38 Cal. 278. 1 See supra, §§ 619, 620, 924; infra, § 1134. 2 Catt u. Howard, 3 Stark. R. 6 ; Reeve u. Whitmore, 2 Dr. & S. 446 ; Abbott V. Pearson, 130 Mass. 141. And so of disconnected articles in a newspaper. Darby v. Ouseley, 1 H. &N. 1. 3 Sturge V. Buchanan, 10 Ad. & E. 598. ' Barrymore v. Taylor, 1 Esp. 326 ; De Medina v. Owen, 3 C. & K. 72 ; North Berwick Co. v. Ins. Co. 52 Me. 336 ; Hayward Rubber Co. o. Dunck- lee, 30 Vt. 29 ; Gary v. Pollard, 14 Allen, 285 ; Stone v. Sanborn, 104 Mass. 319 ; Wiggin v. R. R., 120 Mass. 201 ; Brayley v. Jones, 33 Ind. 508 ; Lester V. Sutton, 7 Mich. 331. See Merritt v. Wright, 19 La. An. 91 ; Newton v. Price, 41 Ga. 186. Infra, § 1127. Com- 298 pare article in Pittsburgh L. J., May 9, 1877. = Supra, § 607 ; Roe o. Day, 7 C. & P. 705; Watson v. Moore, 1 C. & K. 625 ; Bryant v. Lord, 19 Minn. 396 ; Stockham „. Stockham, 32 Md. 196; Simmons v. Haas, 56 Md. 153 ; Moore V. Hawkes, 56 Ga. 557 ; Merritt v. Wright, 19 La. An. 91. 6 Dagleish v. Dodd, 5 C. & P. 238. See supra, § 619. ' Supra, § 619 ; infra, § 1135. 8 Com. V. Eastman, 1 Gush. 189. Infra, § 1154. 9 Supra, § 618. Phoenix Steel Co. V. Daly, 44 L. J. Ch. 683 ; Payson u. Lamson, 134 Mass. 593; Gardt v. Brown, 113 111. 475 ; Maxted u. Sey- mour, 56 Mich. 129. That evidence is admissible to show two writings are interdependent, see Myers v. Munson, 65 Iowa, 423. But one who puts in evidence a petition in bankruptcy for the purpose of proving the fact of bankruptcy does not, by so doing, admit the truth of statements contained in the schedule. Pringle v. Leverich, 97 N. Y. 181. See infra, §§ 1107-8. A letter written by one party to a transaction to the other party, after CHAP. XIII.] ADMISSIONS : WHOLE CONTEXT MUST GO IN. [§1106. § 1104. In equity, however,^ if a plaintiff read particular facts from an answer, the defendant cannot by the English practice, as part of the proof of the case, read other Whole of „ , ,.„ . , , . . . „ answerin tacts, unless qualifying and explaining the meaning of equity and those read by the plaintiff.^ But it is said that on a turaTneed motion for a decree the defendant's answer will be ^°^^^ treated as an affidavit, of which the whole must be read.^ § 1105. At common law, admissions contained in pleas, or an- swers in chancery, cannot be ofifered separately from the documents to which they are attached ; the whole docu- at common ment must go in.^ Even an answer in chancery cannot ^^"^" in common law practice be read, without the bill to which the answers are given, should this be required by the party against whom the answers are offered.* § 1106. Although the exhibits attached to the answers of a per- son, when sworn, cannot be read without the examina- tions,' yet a party obtaining knowledge of such docu- ^ exhibits ments by a suit in chancery may compel their admission in a suit at common law, without putting in evidence the chancery proceedings." " It is surmised," said Lord Denman, " that an unfair advantage had been taken of the defendant in obtaining a knowledge of these letters through a suit in chancery, and then producing them without the answers, which may have greatly qualified and altered their effect. But I cannot think that a judge the transaction, giving his version of it, and not answered by the other party, is not competent in evidence against the latter as an admission. Learned u. Tillotson, 97 N. Y. 1 ; 49 Am. Rep. 608. See Beer v. Aultmay, 32 Minn. 90. Supra, §.618. Where a contract refers to a plan, the plan, unless made the final arbiter, must yield to clauses in the contract with which it conflicts. Smith v. Flanders, 129 Mass. 322. 1 See supra, § 1099 ; infra, § 1112. 2 Davis V. Spurling, 1 Russ. & M. 68 ; Bartlett v. Gillard, 3 Russ. 156. See remarks of Swayne, J., Clements v. Moore, 6 Wall. 299-315. " Stephens v. Heathcote, 1 Drew. & Sm. 138 ; Taylor's Evidence, § 660. * Percival v. Caney, 4 De Gex & Sm, 623 ; Bermon v. Woodbridge, 2 Dougl 788 ; Marianski v. Cairns, 1 Maoq. Sc, Cas. 212; Baildon v. Walton, 1 Exch, C. 617 ; Bath v. Bathersea, 5 Mod. 10 As to pleadings, see infra, § 1110 As to equity practice, infra, § 1112. 5 Pennell v. Meyer, 2 M. & Rob. 98 8 C. & P. 470. But see Ewer v. Am- brose, 4 B. & C. 25 ; Rowe v. Brenton, 8 B. & C. 737. 6 See Holland v. Reeves, 7 C. & P. 36. Supra, § 618. ' Long V. Champion, 2B. &Ad. 284; Sturge V. Buchanan, 10 Ad. & E. 605. See Falconer v. Hanson, 1 Camp, 171. 299 § 1108.] THE LAW OP EVIDENCE. [book III. Whole of applicatory legal pro- cedure usually goes in. at nisi prius has anything to do with these considerations : he is to inquire only whether due notice has been given ; whether the docu- ments have been proved to exist ; whether copies are well proved."' § 1107. Inactions against officers for misconduct in office, the in- troduction of particular writs, or other documents issued by them, to charge them, carries with it the introduction of any excusatory matter contained in such documents.^ But it may be now considered settled that when a war- rant is put in evidence, to charge a sheriff or other officer with misconduct in making a wrongful seizure, the sheriff is not re- lieved from producing justificatory evidence by the fact that such justification is recited in the warrant put in evidence against him.^ In equity, where an answer contains an admission of the receipt of money, this admission is" not to be regarded as drawing into it and identifying with it statements, in other parts of the answer, of inde- pendent payments or settlements of the money so admitted to be re- ceived.* § 1108. Where part of a conversation is put in evidence by one party, the other is entitled to put in the whole so far as it is relevant. A., for instance, cannot put in evidence against B., remarks of B. containing admissions, without putting in evidence the substance of all that related to such remarks in the conversation.* " Nor can it make So of whole rele- vant por- tions of conversa- tion. 1 Sturge V. Buchanan, 10 A. & E. 605. See, further. Long v. Champion, 2 B. & Ad. 286 ; Hewitt v. Piggott, 5 C. & P. 75, 77 ; Jacob v. Lindsay, 1 East, 460 ; Falconer v. Hanson, 1 Camp. 171 ; 2 Ph. Ev. 341. In the latter cases it was held, that using a party's oral admission against him necessitates the introduction of papers referred to by him, without which his statement would be incomplete. 2 Haylock v. Sparke, 1 E. & B. 471 ; Haynes v. Haytou, 6 L. J. K. B. (0. S.) 231 ; recognized in Bessey v. Windham, 6 a. B. 172, cited in Taylor on Evi- dence, § 658. See supra, § 830. ' White V. Morris, 11 C. B. 1015 ; Glave V. Wentworth, 6 Q,. B. 173, n. ; Bowes V. Foster, 27 L. J. Ex. 463 ; Tay- 300 lor on Evidence, § 659. See infra, § 1118 ; supra, §§ 824, 834. * Robinson v. Scotney, 19 Ves. 584 Freeman v. Tatham, 5 Hare, 329. " Queen Caroline's case, 2 B. & B< 297 ; Beckham v. Osborne, 6 M. & Gr 771 ; Fletcher v. Froggatt, 2 C. & P 566 ; Storer v. Gowen, 18 Me. 174 ; Rip ley V. Paige, 12 Vt. 353 ; O'Brien v. Cheney, 5 Cush. 148 ; Dole o. Wool dredge, 142 Mass. 161 ; Bristol v. War- ner, 19 Conn. 7 ; Hopkins v. Smith, 11 Johns. 161 ; Stuart v. Kissam, 2 Barb. 493 ; Oakland «. Ins . Co. , 72 N. Y . 274 ; Platner v. Platuer, 78 N. Y. 90 ; Fox V. Lambson, 3 Halst. 275 ; Thomson v. Austen, 2 S. & R. 361 ; Gill ^. Kuhu, 6 S. & R. 333 ; Hamsher v. Kline, 57 Penn. St. 397 ; Wolf Creek Diamond CHAP. XIII.] ADMISSIONS : WHOLE CONTEXT MUST GO IN. [§ 1109. any difiference whether the part is brought out by the direct exami- nation of the party's own witness or the cross-examination of the witness of his adversary. "^ Even if the conversation should be deemed the declarations of a third person to the action, the princi- ple of the rule will apply .^ But collateral statements are not made admissible because part of the conversation ; nor can they be introduced, by means of cross-examination, to make out an inde- pendent case for the party by whom they are made unless they are part of the context of the admission received.^ Nor does the limi- tation exact the introduction of interviews subsequent to that in which the admissions proved were made.* If the substance be proved, it is not necessary to reproduce the words." Nor is the evidence excluded by the fact that there were other portions of the conversation which the witness did not hear.* As we have seen, the relevant written context of a written admission must go in ; and so of interdependent documents.' § 1109. When the testimony of a witness, as given in another cause, is offered, the whole relevant portion of the tes- timony, including cross-examination as well as examina- timony^re- tion, must be given ;' and where the plaintiffs, who were proiiiced assignees of a bankrupt, gave in evidence an examina- former tion of the defendant before the commissioners, as proof that he had taken certain property, the court held that they thereby Coal Co. . Butler, 36 lud. 51. ' Morrell v. Cawley, 17 Abb. (Pr.) 814 76. See Beach v. Sutton, 5 Vt. 209 ; Ross V. Gould, 5 Greenl. 204 ; Womack V. Womack, 8 Tex. 397. As to non-producible writings being proved by parol, see supra, § 130. ^ Knowlton v. Moseley, 105 Mass. 136. ' 3 Pars, on Cont. 295 ; Matheson v. Ross, 2 H. of L. 286 ; Atkins v. Plympton, 44 Vt. 21 ; Moore v. Moore, 47 N. Y. 468 ; Reis v. Hellman, 25 Ohio St. 180 ; S. C.l Cincin. 30. See supra, §§ 697-8. ' Huffman v. Cartwright, 44 Tex. 296. s Bishop V. Fletcher, 48 Mioh. 555. 10 1 Pars, on Notes, 176 ; Redfield & Big. Cases, 186 ; Grant v. Vaughan, 3 Burr. 1516 ; Bowers v, Hurd, 10 Mass. CHAP. XIII.] ADMISSIONS IN WRITINa. [§ 1127. certificates of indebtedness.^ And orders for payment admissible _ , as admis- of money, in the hands of the drawee, are prima facie sions of in- evidence that the drawer has received the amount.^ ^ ^ °'^^^' § 1126. Self-disserving indorsements on instruments are, on the principles above stated, primd facie evidence against the party making or permitting such indorsements, though, ment^of like receipts, they are open to parol explanation.^ If payment _ ^ ' •' _ r r r on paper self-serving, they are inadmissible ;* though, as is else- are admis- where shown, it has been much discussed whether an in- dorsement of part payments, which is only superficially self-dis- serving, may be produced in evidence, by the party making it or his representatives, when the effect is to take the debt out of the statute, and therefore greatly to serve him.* When self-disserving, and when on the instrument sued on, they need not be proved by the party sued.* But„ to be thus received, they must be in some way imputable to the party claiming under the instrument.' § 1127. A letter, when it forms part of a contract, or is part of the material from which a contract may be constructed, may not only be received against the writer as an ad- ce^jyabie^as mission, but may bind him by way of estoppel. If con- admis- tractual, to fall back on the distinction already put,' letters may estop ; if non-contractual, they afford only primd facie proof.* Ordinarily, however, it is evidentially, rather than dispos- itively, that letters are used in evidence against the writer ; they are employed, in other words, not to bind him to a disposition of 427 ; Fisher v. Fisher, 98 Mass. 303 ; Mowry v. Bishop, 5 Paige, 98 ; Bunt- ing V. Allen, 18 N. J. L. 299. 1 Ala. R. R. V. Sanford, 36 Ala. 703. 2 Child V. Moore, 6 N. H. 33 ; Raw- son V. Adams, 17 Johns. R. 130 ; Curie V. Beers, 3 J. J. Marsh. 170. Infra, §§ 1362-3. 3 See supra, §§ 228 et seg., 619, 924 ; Harper v. West, 1 Granch C. C. 192 ; Clarke v. Ray, 1 Har. & J. 318 ; Gil- patrick v. Foster, 12 111. 355 ; Carey v, Phil. Co., 33 Cal. 694. » Sorrell v. Craig, 15 Ala. 789. 5 Supra, § 228, and see §§ 229-230 ; infra, § 1135. " Lloyd V. McClure, 2 Greene (Iowa), 139. See supra, §§ 619, 924. ' Jacobs u. Putnam, 4 Pick. 108 ; Turrell w. Morgan, 7 Minn. 368. 8 See supra, §§ 1078-85. s Dodge V. Van Lear, 5 Cranch C. C. 278 ; Pettlbone v. Derringer, 4 Wash. C. C. 215 ; Connecticut v. Bradish, 14 Mass. 296 ; New England Ins. Co. v. De Wolf, 8 Pick. 56 ; Beers v. Jack- man, 103 Mass. 192 ; Union Can4 v. Loyd, 4 Watts & S. 394; Snyder v. Reno, 38 Iowa, 329. See Knight v. Cooley, 34 Iowa, 218. 315 § 1127.] THE LAW OF EVIDENCE. [book III. property, but to show his admission of a fact, which admission, by force of the distinction above given, is but primd facie proof, open to correction and explanation by the writer himself.' A letter to a third person is as admissible for this purpose as is a letter to the other party in the suit ;^ but in such case the admission, to be oper- ative, must be specific' It is not necessary to the admissibility of a letter that it should be signed ; if traceable to the writer, and if involving a self-disserving admission of any kind, this is enough.* Nor is it an objection that the letters are insulated ; a letter con- taining a particular admission may come in by itself;" nor is it necessary in such case that the whole correspondence should be put in.' Nor is it fatal to the admissibility of a written admission that it was in answer to a letter meant as a trap.^ Letters are admissible as admissions, though made after the com- mencement of litigation.' , Letters of third parties are ordinarily inadmissible, being hear- say.' Hence a letter addressed to a party cannot be admitted as » Supra, §§ 923, 1085 ; Marshall v. R. E,., 16 How. (U. S.) 314; Mulhall «. Keenan, 18 Wall. 342; Goddard «. Putnam, 22 Me. 363 ; Jacobs v. Shorey, 48 N. H. 100 ; Short Mountain Co. v. Hardy, 114 Mass. 197 ; Newoomb v. Cramer, 9 Barb. 402 ; Bank v. Culver, 2 Hill (N. Y.) 531 ; Stacy v. Graham, 3 Duer, 444 ; WoUenweber v. Ketter- linus, 17 Penn. St. 389 ; Douglass v. Mitchell, 35 Penn. St. 440 ; Downer v. Morrison, 2 Grat. 250 ; Coats v. Gregory, 10 Ind. 345 ; Shaw o. Davis, 7 Mich. 818 ; Beeoher v. Pettee, 40 Mich. 181 ; Harrison v. Henderson, 12 Ga. 19 ; Buchanan v. Collins, 42 Ala. 419 ; Prussel V. Knowles, 5 Miss. 90 ; Swanu V. West, 41 Miss. 104 ; South. Ex. Co. V. Thornton, 41 Miss. 21&; Porter v. Ferguson, 4 Fla. 102. See Holtz v. Dii^, 42 Ohio St. 23. As to how far letters can be received without whole correspondence, see su- pra, § 1103 ; supra, § 618. 2 Longfellow v. Williams, Pea. Add. Ca. 225 ; Rose v. Cunynghame, 11 Ves. 316 550 ; Gibson v. Holland, L. R. 1 C. P. 1 ; Wilkins v. Burton, 5 Vt. 76 ; Rob- ertson V. Ephraim, 18 Tex. 118. 3 Betts u. Loan Co., 21 Wis. 80; supra, §§ 1076-9. * Bartlett v. Mayo, 33 Me. 618. 5 North Berwick Co. v. Ins. Co., 52 Me. 336 ; Newton v. Price, 41 Ga. 186, and other cases cited supra, § 1103. A letter containing an admission by a party is evidence against him, al- though the letter was in reply to another which the party is not called upon to produce. Wiggiu v. R. R., 120 Mass. 201. See supra, § 1103. 6 Supra, §§ 618 et seq., 1103. ' U. S. V. Champagne, 1 Ben. 241. 8 Holler V. Weiner, 15 Penn. St. 242 ; Prussel V. Knowles, 5 Miss. 90. 9 Williams «. Manning, 41 How. (N. Y.) Pr. 454 ; Wolstenholme v. Wolsten- holme, 3 Lans. 457 ; Rosenstock u. Tormey, 32 Md. 169 ; Underwood v. Linton, 44 Ind. 72 ; Livingston v. R. R., 35 Iowa, 555. CHAP. XIII.J ADMISSIONS: LETTERS AND TELEGRAMS. [§ 1128. proof against him, unless it be proved that he received it and acted on it.' Whether a letter written, but not sent, can be put in evi- dence against a party, has been already discussed.* § 1128. Telegrams, under the same restrictions as those which have been noticed as appertaining to letters, may be treated as constituting admissions on the part of the may be an person by whom they are sent.^ If tending to make up ^^™^^'°°- a contract, they bind him contractually. If merely evidential, they may be treated as non-contractual admissions, which, so far as con- cerns the party from whom they emanate, are subject to the usual incidents of such admissions.^ It is scarcely necessary to say, that, to charge a party with a telegram, the original draft in the hand- writing of the party or his agent must be produced.* A telegram, ' Smiths u. Shoemaker, 17 Wall. 630. See fully infra, § 1154. And see Maguire v. Corwine, 3 MaoArthur, 81. 2 Supra, § 1123. 3 See supra, § 617. * Com. V. Jeffries, 7 Allen, 548; Beach ■;. R. R., 37 N. Y. 457 ; Taylor V. The Robert Campbell, 20 Mo. 254 ; Wells V. R. R., 30 Wis. 605. See, to effect of non-contractual ad- missions, supra, §§ 1075-8. In Minnesota Linseed Oil Co. v. Col- lier White Lead Co., 4 Dill. 431, de- cided in 1876, by the United States Circuit Court for the District of Minne- sota, the plaintiff, whose place of busi- ness was at Minneapolis, on the 31st of July, which was Saturday, deposited in the telegraph of&ce at that place a telegram directed to defendant at St. Louis, offering to sell a quantity of lin- seed oil at fifty-eight cents per gallon. The dispatch was sent the same day, but was not delivered to defendant until between eight and nine o'clock Monday morning following. On Tues- day morning, a few minutes before ten o'clock, defendant deposited a telegram accepting plaintiff's offer in the tele- graph office of St. Louis. A telegram was sent by plaintiff to defendant on the same day revoking the offer. The price of the kind of oil which was the subject of negotiation was subject to sudden and great fluctuations, and had in fact, after the offer was made, risen considerably. The court held that the same rule applied to contracts by tele- graph as to those by mail, and that a contract is completed when the accept- ance of a proposition is deposited for transmission in the telegraph office, whether the message is received by the person sending it or not. But it also held that an immediate answer should have been returned ; and that an acceptance of the proposition, tele- graphed after a delay of twenty-four hours from the time of its receipt,"Tvas not an acceptance within a reasonable time, and did not operate to complete the contract. See, to same general effect, Coupland v. Arrowsmith, 18 Law Times (N. S.) 75 ; Henkel v. Pape, L. R. 6 Exoh. 7 ; Verdin v. Robertson, 10 Ct. Sess. Cas. (3d series), 35; Diirls;ee u. R. R., 29 Vt. 127 ; Trevor v. Wood, 36 N. Y. 306 ; Beach v. R. R., 37 N. Y. 457 ; Alb. L. J., Jan. 20, 1877. 5 Durkee v. R. R., 29 Vt. 127 ; Ben- ford V. Zanner, 40 Penu. St. 9 ; Matte- son V. Noyes, 25 III. 591 ; Williams «. 317 § 1130.] THE LAW OF EVIDENCE. [BOOK III. also, may be an adequate memorandum under the statute of frauds.' To prove a dispatch to have been received at a telegraph office, it must in some way be identified with the office.' The mere fact, however, of a telegram being dispatched to a party at a given place, and of an answer purporting to have been sent by him as at the same place, is no proof that he was at such place at the particular time. The operator at the place where the party was addressed must be called as a witness to prove the party's presence, or his own original, as an admission in his own writing, must be produced.^ A telegram, it is generally held, is not a privileged communication ; and the operator may be compelled to disclose its contents.^ As will be hereafter seen, the presumption of delivery of telegrams is of the same general character as the presumption of delivery of letters." § 1129. It is not necessary, as has been noticed, in order to charge a party with a written admission, that it should aa^'when" ^^^^ ^®®" signed by him. Any memorandum, the au- seif-dis- thorship of which can be traced to him, may be put in eerving, ^ . m . may be evidence against him. Thus, the counter foil or stump of a check may be an admission when the check itself is lost.* Loose notes, or other casual writings, may be thus employed.^ The eifect of entries of receipt of interest on a note is elsewhere discussed.' § 1130. As is elsewhere abundantly shown, a written receipt is primd facie evidence of payment, liable to be explained are°a£^ by parol.' A receipt, however, as we have also seen, missions, jjjg^y ^g when advanced as a basis for the action of third but open to •'_ ' expiana- parties, an estoppel as to such third parties.'" In other tlon. , • , ., , . , . words, a receipt, when unilateral, is open to explanation by the party making it, but when bilateral, concludes." Brickell, 37 Miss. 682. See other cases ' Bartlett v. Mayo, 33 Me. 518 ; Hos- cited supra, §§ 76, 617. As to non- ford ?;. Foote, 3 Vt. 391 ; Stannard v. produoibility of original, see supra. Smith, 40 Vt. 513 ; Wadsworth v. Rug- § 76. gles, 6 Pick. 63 ; Leeds v. Dunn, 10 N. 1 Durkee v. R. R., 29 Vt. 127. See Y. 469 ; Cook v. Anderson, 20 Ind. 15 ; other cases supra, §§ 76, 617 ; and see Snyder v. Reno, 38 Iowa, 329 ; Gaines v. Williamson v. Freer, L. R. 9 C. P. 393. Gaines, 39 Ga. 68. See Scammon v. 2 Richie v. Bass, 15 La. An. 668. Scammon, 28 N. H. 419. 3 Howley v. Whipple, 48 N. H. 487. » Infra, § 1135 ; supra, § 1126. * Supra, § 595. s See supra, § 1064. s Infra, § 1329. lo Supra, §§ 1065-7. s R. V. Wilkinson, 10 Cox C. C. 537. " See supra, § 1078. 818 CHAP. XIII.] WRITTEN ADMISSIONS. [§ 1132. Corpora- tioDS and club books may be used as ad- missions. § 1131. From what has been said, it follows that bank books are admissible as showing a primd facie case against the bank by whom the entries are made ;^ and against a party dealing with the bank, so far as he has made the person making the entries his agent.^ The books are evidence, also, between the bank and its stockholders.' Entries made by strangers, however, without the knowledge of the litigants, cannot be received as against either of the litigants.^ Or- dinarily the bank books are not evidence, in suits to which the bank is not a party, without proving sacji books by the clerk who made the entry, if within process, or proving his. handwriting, if he is outside of process.* As a general rule, as has been seen,* the books of municipal or private corporations are admissible against members of the corporation.^ With regard to club and society books, it has been correctly held that entries in such books, when kept by the proper officer and accessible to all the members, are admissible against such members.' § 1132. Partnership books, on the same principle, are admissible in suits by one partner against the other.' As a condi- . . Partner- dition of such admissibility, however, it must appear that ship books the partner sued had access to the books, or in some way a°bie.™'^" 1 Supra, § 662. See Whart. on Agency, §§ 671 et seg., and oases there cited ; Olney v. Chadsey, 7 E. I. 224 ; Manhattan Bank v. Lydig, 4 Johns. R. 377 ; State Bank v. Johnson, I Hill (S. C), 404; Porniquet v. R. R., 6 How. (Miss.) 116. 2 Williamson ». Williamson, L. R. 7 Eq. 542 ; Union Bank v. Knapp, 3 Pick. SG; Brown v. Bank, 119 Mass. 69; Al- len V. Coit, 6 Hill (N. Y.), 318. See supra, § 662. Thus, a customer's hank hook may be put in evidence against him to show what he had on deposit. Lichman v. Rothharth, 111 111. 186, citing Furness v. Cope, 5 Bing. 114. " Merchants' Bank v. Eawls, 21 Ga. 334. * Barnes v. Simmons, 27 111. 512. 6 Philadelphia Bk. ■;. Officer, 12 S. & R. 49 ; Rldgway v. Bk. 12 S. & R. 256 ; Courtney v. Com., 5 Rand. (Va.) 666. See, however, Crawford v. Bank, 8 Ala. 79 ; and see supra, § 662. « Supra, § 661. ' See supra, § 661 ; Board of Educ. V. Moore, 17 Minn. 412. As to munici- pal and public corporations, see Righter, in re, 92 N. Y. Ill ; St. Louis Gas Light Co. v. St. Louis, 86 Mo. 495. As to such books generally, see supra, §§ 287 ff, 642. 8 Raggett V. Musgrave, 2 C. & P. 556 ; Aldersoi\ v. Clay, 1 Stark. R. 405 ; Ashpitel V. Sercombe, 5 Ex. R. 147 ; Allen V. Coit, 6 Hill, N. Y. 318. 9 Symonds v. Gas Co., 11 Beav. 283 ; Lodge V. Pritohard, 3 De Gex, M. & G. 706 ; Boardman u. Jackson, 2 5all & B. 382 ; Tucker v. Peaslee, 36 N. H. 167 ; Topliff v. Jackson, 12 Gray, 565 ; Caldwell v. Leiher, 7 Paige, 483 ; White u. Tucker, 9 Iowa, 100 ; Perry r. Banks, 14 Ga. 699. 319 § 1133.] THE LAW OF EVIDBNOE. [book III. authorized the entries charging him to he made, and that the books were fairly kept.' Such books are also evidence against the partnership when sued by a stranger f but not evidence against a stranger when sued by the partnership,' unless such books fall under the category of books of original entry .^ After dissolution, entries cease to charge the partnership as such.* A partner's en- tries in the firm's books are not, unless made with the assent ex- press or implied of his copartners, evidence for him to prove that he was a member of the firm.' § 1133. Wherever it is the duty of one party to state and for- ward an account for the information of another, the en- tries of the accountant may be used as primd facie evi- dence against him.' Such accounts, however, until final settlement, are open to correction by the parties, even after settlement on proof of mistake.* But the fact that an account was stated after the commencement of the suit does not exclude it.' Even an account, made out but not sent in, may be treated as an admission." In a suit to recover personal property, the sworn tax list in which defendant made no claim for the property is admissible against him for what it is worth.'' So of accounts stated, book en- tries, and tax returns. 1 Adams v. Funk, 53 111. 219 ; Tur- nipseed i>. Goodwin, 9 Ala. 372. See Moon . Arm- strong, 19 Ohio, 44 ; Kirby u.Watt, 19 111. 393 ; State v. Woodward, 20 Iowa, 541 ; Byrne v. Sohwing, 6 B. Mon. 199 ; Gradwohl v. Harris, 29 Cal. 150 ; Gaines 320 V. Gaines, 39 Ga. 68 ; Turner v. Lewis, 6 La. An. 774 ; Murdoch v. Finney, 21 Mo. 138 ; Britton v. State, 77 Ala. 202. * " The account rendered on the 16th of April, 1864, was, at the most, but primd facie evidence that there were no other transactions which should prop- erly form a part of it. Lockwood v. Thome, 18 N. Y. 285. An account rendered is not conclusive against either party to it, but may be im- peached or corrected within a reasona- ble time after its rendition or its receipt. Should the balance claimed be actually paid, the account would still be open to correction in the same manner. Ibid." Hunt, Com., Champion v. Jos- lyu, 44 N. Y. 656. s Hyde v. Stone, 7 Wend. 354; Stowe V. Sewall, 3 St. & P. 67. 10 Bruce v. Garden, 17 W. R. 990. Supra, §§ 1021, 1028, 1123. '' Lefever v. Johnson, 79 lud. 554. CHAP. XIII.] WRITTEN ADMISSIONS. [§ 1135. A tax collector's " stub book" is admissible against him.' A principal's book entries are admissible against his surety.^ The omission by an insolvent of a claim, in the schedule of debts returned by him, is at least primd facie evidence, as against the insolvent, that no such debt is due.^ An account filed by a party, stating a debt to a third party, makes a primd facie case for such third party. ^ An account may be evidence in favor of the party making it as against a party who had access to the books, and has full oppor- tunity from time to time of testing their accuracy." The effect of silence in the reception of an account is discussed in another section.' § 1134. As has been already incidentally noticed,' the party receiving an account cannot ordinarily put the debit side • 1 -1 • • 1 , Whole ac- in evidence, without putting in the whole account , and count must where an account is made up of several stages, embrac- 1° of 'con- ing distinct settlements, the last settlement primd facie ^^^°^'f^^, includes and extinguishes the first.' When mixed up mentary svidsQCfi with independent unwritten statements, the written and the unwritten explanations are to be taken together.'" Not only is the whole of a written admission to go in evidence, when called for, but such is the case with all contemporaneous documents which are part of the same transaction." § 1185. An interesting question here arises as to the effect of an indorsement of payment of interest on a bond or note, imjo^ge. Unquestionably such an indorsement is evidence against ments of its maker whenever he undertakes to claim the debt of missibie 1 Britton v. State, 77 Ala. 202. 2 McKim V. Blake, 139 Mass. 593. Infra, § 1212. ' Hart V. Newcomb, 3 Camp. 13 ; though see Nichols «. Downes, 1 M. & Rob. 13, where Lord Tenterdeii held the insolvent estopped by the admis- sion ; and see Tilghman u. Fisher, 9 Watts, 441. * Burrows v. Stevens, 39 Vt. 378. Supra, §§ 1131-2. « Symonds v. Gas Co., 11 Beav. 283 ; Boardman v. Jackson, 2 Ball & B. 382 ; VOL. II. — 21 Lodge V. Prichard, 3 De &ex, M. & G. 906. 6 See infra, § 1140. ' Supra, §§ 620, 1103. 8 Supra, §§ 620, 1103 ; Bell v. Davis, 3 Cranoh C. C. 4 ; Morris c. Hurst, 1 Wash. C. C. 433; Walden <,-. Sher- burne, 15 Johns. 409 ; Jones v. Jones, 4 Hen. & M. 447; Young u. Bank, 5 Ala. 179. See, however, Chesapeake Bank v. Swain, 29 Md. 483. 9 Dorsey v. Kollook, 1 N. J. L. 35. » Cramer v. Shriner, 18 Md. 140. See Matthews v. Coalter, 9 Mo. 686. " Supra, § 1103. 321 ^ 1135.] THE LAW OF EVIDENCE. [BOOK III. against which the indorsement indicates the payment of interest, ingthem, The indorsement when made was self-disserving; it was bar etatute ^" admission against his interests ; it is, therefore, in of limita- accordance with the rule here stated, admissible to defeat tions. . ' his claim for interest. But if the entries were made while the statute of limitations was impending, and if their effect be to revive a debt which would otherwise become extinct, then,, from being self-disserving, they would become in the highest degree self-serving. A debt of $10,000 would in this way be recalled into life by an entry of payment of a quarter's interest. Hence it has been properly held that an entry rflade after the creditor's remedy is impaired by the lapse of time is not a declaration against inte- rest, and is consequently inadmissible to defeat the running of the statute.' In England this question had been partially settled by Lord Tenterden's Act, which provides that no indorsement or mem- orandum of interest on any writing, made by the creditor, shall be such a payment as to take the case out of the operation of the stal^ ute of limitations. Similar enactments exist in several of the United States. At common law, however, the question is still, in many jurisdictions, open to agitation ; and it becomes, in such cases, important to determine whether an entry of payment on a note or other writing must be shown, by evidence outside of the paper (when the object is to suspend the operation of the statute), to have been made before the right of action was barred by the stat- ute. The ordinary presumption, as is well known, is that a docu- ment, unless the contrary be shown, is executed on the date it bears on its face f and this presumption has been directly applied, by high authorities, to entries of the class here immediately under discussion.' But this has not been without a vigorous protest,* it being argued that such a presumption, if accepted, is peculiarly in- vidious as to the debtor ; for the reason that, as he cannot before trial have access to the writing in the creditor's hands, he will be 1 Briggs V. Wilson, 5 De Gex, M. & a. 20 ; Clough v. McDaniel, 58 N. H. G. 12 ; Glynn v. Bank, 2 Ves. Sen. 38 ; 201 ; Roseboom v. Billington, 17 Johns. Sorrell v. Craig, 15 Ala. 789. See 182; Shafer v. Shafer, 41 Penn. St. Turner v. Crisp, 2 Str. 827. 51 ; Clark v. Burn, 86 Penn. St. 602 ; 2 See supra, §§ 977, 979 ; infra, § White v. Beaman, 85 N. C. 3. Supra, 1313. § 228. 8 Smith V. Battens, 1 M. & Rob. 341. • Taylor's Ev. § 629. See Bailey v. See Anderson v. Weston, 6 Ring. N. C. Danforth, 53 Vt. 504 ; Davidson v. De- 302 ; Briggs v. Wilson, 6 De Gex, M. & lano, 11 Allen, 525 (by statute). 322 CHAP. Xril.] ADMISSIONS : BY SILENCE OR CONDUCT. [§ 1136. in the dark as to the date of the entry, and hence unable to contra- dict it. But this reasoning does not hold good in those states in which a party may obtain, before trial, an inspection of papers re- lied on by his opponent.' IV. ADMISSIONS : BY SILENCE OB, CONDUCT. § 1136. If A., when in B.'s presence and hearing, makes state- ments which B. listens to in silence, interposing no ob- jection, A.'s statements may be put in evidence against ^y^one"™*^ B. whenever B.'s silence is of such a nature as to lead to P^^'y '» ■ r c o A 1 1 • • 1 *"® other the inference of assent.* " A declaration in the presence received in of a party to a cause becomes evidence, as showing that be^prOTed!'^ the party, on hearing such a statement, did not deny its truth. Such an acquiescence, indeed, is worth very little where the party hearing it has no means of personally knowing the truth or falsehood of the statement."* " Declarations or statements made in the presence of a party are received in evidence, not as evidence in themselves, but to understand what reply the party to be affected by the statement should make to the same. If he is silent when he ought to have denied, the presumption of acquiescence arises."^ And again, extending the doctrine to accusations of crime : " A statement is made either to a man, or within his hearing, that he was concerned in the commission of a crime, to which he makes no reply ; the natural inference is, that the imputation is well founded or he would have repelled it."° • Mr. Taylor cites, as sustaining his (S. C), 111 ; Block u. Hicks, 27 Ga. views, Lord EUenborough's dicta in 522 ; Drumright v. State, 29 Ga. 430 ; Eose V. Bryant, 2 Camp. 321. Alston v. Grantham, 26 Ga. 374 ; Moye ' Hayslep v. Gymer, 1 Ad. & E. 162 ; ^. State, 66 Ga. 740 ; Bradford v. Hag- Morgan V. Evans, 3 CI. & F. 205 ; Gas- gerthy, 11 Ala. 698 ; Benziger v. Mil- kill V. Skene, 14 Q. B. 664 ; Wiggins ler, 50 Ala. 207 ; Davis v. Bowmar, 65 u. Burkham, 10 Wall. 129 ; Rea v. Mis- Miss. 671 ; People v. McCrea, 32 Cal. aoari, 17 Wall. 532 ; .Johnson v. Day, 98. See 1 Cow. & Hill N. 191. 78 Me. 224 ; Bailey ». Woods, 17 N. H. ' Per Parke, J., Hayslep v. Gymer, 1 365 ; Corser v. Paul, 41 N. H. 24 ; Com. A. & E. 163 ; cf. Neile v. Jakle, 2 C. & V. Call, 21 Pick. 515 ; Jewett v. Ban- K. 709. ning, 23 Barb. 13; McClenkan o. Mc- • Hunt, J., Gibney «. Marchay, 34 N. Millan, 6 Penn. St. 366 ; Knight v. Y. 305 ; Gebhart v. Burkett, 57 Ind. House, 29 Md. 194; Hagenbaugh v. 378. Crabtree, 33 111. 225 ; Pierce v. Golds- * Best on Presumptions, § 241 ; af- berry, 35 Ind. 317 ; Green v. Harris, 3 firmed in State v. Cleaves, 59 Me. 300- Ired. L. 210 ; Wells v. Drayton, 1 Mill 1, and reaffirmed in State v. Reed, 62 328 § 1138.] THE LAW OF EVIDENCE. [book III. § 1137. 'When the statement is put in the form of an interroga- tion, the inference gains additional strength.' Even Weight de- ^j^gre there is no personal appeal, the same doctrine circum- applies, though with diminished force. Thus, A.'s silence, when declarations are made in his presence by another person, A. taking no part in the conversation, may be evidence against A., though of slight value.^ So the silence of a person, whose name is on negotiable paper, on receiving notice of protest, may go to the jury for what it is worth.' And the drop- ping by A. of certain claims against B., at an arbitration at which A. is called upon and undertakes to present all his claims against B., may be used in evidence against A.^ Circumstances, also, may exist, in which a silent recognition of letters and telegrams by a sendee, may authorize their reception in evidence against him.* § 1138. But it is otherwise when B.'s silence is of a character not to justify such an inference.* Thus, neither a was unable person when asleep,' nor when intoxicated,' nor a deaf called person,' can be in this way prejudiced by statements on to an- made in his presence ; nor is a foreigner, unless it appear swer, sucn r j o ' rr evidence is that he understood the language spoken.'" There are ttqI iipl pec cases, also, in which a party may, with propriety, refuse, on his own personal aifairs being introduced in a mixed if not a hostile company,- to make any explanation which might imply the right of others thus to impertinently call him to account ; and it Me. 142. See, also, First Nat. Bank t;. Reed, 36 Mich. 263 ; Stale v. Pratt, 20 Iowa, 267 ; State u. Swink, 2 Dev. & Bat. 9 ; Keith v. State, 27 Ga. 483. 1 Andrews ». Frye, 104 Mass. 234 ; Mitchell V. Napier, 22 Tex. 120. 2 Turner v. Yates, 16 How. 14 ; Bos- ton R. R. V. Dana, 1 Gray, 83 ; Smith V. Hill, 22 Barb. 656 ; Andres u. Lee, 1 Dev. & B. Eq. 318. See, however. Child V. Grace, 2 C. & P. 193 ; Moore V. Smith, 14 S. & R. 388. ' See Fargo v. Milburn, 100 N. Y. 94 ; Greenfield Bank v. Crafts, 2 Allen, 269. * Moore v. Dunn, 42 N. H. 471. See supra, §§ 785-87. « Oregon St. Co. c. Otis, 100 N. Y. 446. 824 5 Corser v. Paul, 41 N. H. 24 ; Brain- ard V. Buck, 25 Vt. 673 ;, Com. v. Ken- ney, 12 Met. (Mass.) 235; Com. v. Harvey, 1 Gray, 487 ; Larry ... Sher- burne, 2 Allen, 35 ; Donnelly v. State, 2 Dutch. 601 ; Kuney v. Dutcher, 56 Mich. 308 ; Francis v. Edwards, 77 N. C. 271. See Mattox ». Bays, 6 Dana (Ky.), 461 ; Slattery v. People, 76 111. 217 ; Wilkins v. Stidger, 22 Cal. 231 ; Boyd V. Bolton, Irish Rep. 8 Eq. 113. ' Lauergan v. People, 39 N. Y. 39. s State V. Perkins, 3 Hawks, 377. s Tufts V. Charlestown, 4 Gray, 537. See Com. v. Gahaven, 9 Allen, 271 ; State V. Perkins, 3 Hawks, 377 ; Barry V. State, 10 Ga. 511. » Wright V. Maseras, 56 Barb. 521. CHAP. XIII.] ADMISSIONS: BT SILENCE OR CONDUCT. [§1138. would be absurd to treat silence under such circumstances as in- volving an admission.' Nor even under our present practice does a defendant's silence, when charges are judicially made against him, authorize such charges to be proved against him on future trials.* Hence a party who is arrested on ex parte affidavits cannot, by failing to take steps to vacate the arrest, be held to admit the truth of the matters charged against him in the affidavits.* It has also been held that statements made by a clergyman to his congregation in a sermon cannot be put in evidence against the congregation, although they listened in silence to the statements ;* nor, generally, is such silence an assent unless the statements were such as properly to call for a response ;" nor unless the truth or falsehood of the statements were within the range of the party's knowledge.* 113; 193; R. V. See, 1 Mattocks V. Lyman, 16 Vt. Hackett v. Callender, 32 Vt. 97. 2 Child V. Grace, 2 C. & P. R. V. Turner, 1 Moody C. C. 347 ; Appleby, 3 Starkie, N. P. C. 33. however. Lord Dentoan's remarks in Simpson v. Robinson, 12 Q. B. 512 ; and see R. V. Coyle, 7 Cox, 74 ; U. S. v. Brown, 4 Cranch C. C. 508; Com. i^. Kenney, 12Met. (Mass.) 235 ; Com. u. Walker, 13 Allen, 570; Bob v. State, 32 Ala. 560 ; Noonan v. State, 9 Miss. 562; Broyles ». State, 47 Ind. 251; Johnson v. HolHday, 79 Ind. 157. In Cowell V. Patterson, Sup. Ct. Iowa, 1878, it was held that the waiver of a preliminary examination by one charged with the commission of a crime will not estop him from showing, on a writ of habeas corpus, that the evidence against him is insufficient to warrant his detention. » Talcott V. Harris, 93 N. Y. 567. See Weaver v. State, 77 Ala. 26. * Johnson u. Trinity Church, 11 Al- len, 123. 6 Corser „. Paul, 41 N. H. 24; Vail V. Strong, 10 Vt. 457 ; Mattocks v. Ly- man, 16 Vt. 113 ; Hersey v. Barton, 23 Vt. 685 ; Brainard v. Buck, 25 Vt. 573 ; Com. V. Harvey, 1 Gray, 487 ; McGre- gor u. Wait, 10 Gray, 72 ; Whitney v. Houghton, 127 Mass. 527; Jewett u. Banning, 21'N. Y. 27 ; Moore v. Smith, 14 S. & R. 388 ; Barry v. Davis, 33 Mich. 515 ; Rolfe v. Rolfe, 10 Ga. 143 ; Abercrombie v. Allen, 29 Ala. 281 ; Wilkins v. Stidger, 22 Cal. 231 ; Boyd ■;. Bolton, 8 Ir. Rep. Eq. 113. Thus, where a servant goes to a house to get possession of his master's chat- tel, evidence that the owner of the house, immediately after the entrance of the servant, said to a third person, in the hearing of the servant hut not in his presence, that the servant had entered against his will, and had pushed him aside, and that the ser. vant, who was on his way up-stairs to get the chattel, said nothing in reply, is incompetent, as an admission of the truth of the charge, in an action against A. for such assault. Drury v. Henry, 126 Mass. 519. A party cannot fix another with lia- bility on the contract by sending a proposal to him, with the announce- ment that unless refused It will be regarded as accepted. Felthouse v. Bindley, 11 C. B. (N. S.) 859. 6 Hayslep v. Gymer, 1 A. & E. 163 ; Com. 0. Kenney, 12 Met. 235 ; Edwards V. Williams, 3 Miss. 846. 325 § 1139.] THE LAW OP KVIDENCE. [book III. A party, also, engaged in a business negotiation, is not bound to correct impressions, however erroneous, in the minds of other par- ties, unless he is specifically appealed to ; and mere silence as to a matter concerning which he is not bound to speak is not equiva- lent to a representation. 1 Discharge of a servant by a master, subsequent to an alleged neg- ligent act by a servant, cannot be regarded as an admission by the master that the act was negligent.^ And the better opinion is that evidence of repairs to a structure through negligence in the con- struction of which it is alleged a party was previously injured, can- not be held to be an admission of such negligence.' A party is not necessarily bound by his silence during the remarks of a stranger intruding during a negotiation, though these remarks may have influenced the other side.^ § 1139. An interesting question arises, under the law enabling parties to te^Ify, as to the effect on a party of the testi- mony of witnesses called by him whom he has the right to contradict. At common law there can be no doubt that such testimony cannot be afterwards used against the party by whom it may be adduced.* Even at pres- ent, under the recent statutes, such evidence, accordinof to the better opinion, cannot be employed in other suits against the party introducing it.« It is otherwise, so it has been held in Maine, in respect to the statements of witnesses made at a prior hearing of the same case, which So as to yarty hear- ing in si- lence the testimony of a wit- ness whom he has the right to disclaim ; and as to admission of docu- ments. 1 Keates v. Cadogan, 10 C. B. 591 ; Smith V. Hughes, L. R. 6 Q. B. 597; Laidlaw v. Organ, 10 Wheat. 178; Whart. on Cont. §§ 217, 249, 251. 2 Couch V. Coal Co., 46 Iowa, 17. See Campbell v. R. K., 45 Iowa, 76 ; supra, § 1081. 3 Supra, §§ 40, 1081. ' Williams v. Beasley, 3 J. J. Marsh. 577. " Helen v, Andrews, M. & M. 336 ; R. V. Appleby, 3 Stark. R. 33 ; R. u. Tur- ner, 1 Moo. C. C. 347 ; Child v. Grace, 2 C. & P. 193 ; Com. v. Kenney, 12 Met. 237. « See Ayres v. Wattson, 57 Penn. St. 360. 326 " It would be perilous, indeed, to any party to produce and examine a wit- ness in court, if all that he might say could afterwards be used in evidence against him as an admission. He ad- mits, indeed, by producing Mm, that he is a credible witness, but only pro hac vice, so far as that case is concerned. He does not admit that everything he says is true, either in that or any other proceeding. A party in the same suit may give evidence which contradicts his own witness, or shows that he was mistaken, though he cannot directly impeach his veracity." MoDermott v. Hoffman, 70 Penn. St. 52. CHAP, xiri.] admissions: by silbncb or conduct. [§1140. statements the party is at liberty to contradict, he being entitled to be sworn as a witness in the case.^ And in England, in a case* in which a question was raised relative to the admissibility of certain depositions, which the defendant had used in a chancery suit, wherein the same facts were in issue, Crompton, J., said : " A docu- ment knowingly used as true, by a party in a court of justice, is evi- dence against him as an admission even for a stranger to the prior proceedings, at all events, when it appears to have been used for the very purpose of proving the very fact, for the proving of which it is offered in evidence in the subsequent suit." And it has been held that where a book, purporting to be that of a deputy surveyor, had been three times, without objection, received in evidence in the same cause, it could be admitted on a subsequent trial without fur- ther proof.^ A statement, also, made on a preliminary motion in court in the presence of a party by his attorney, as to what the party would testify to, has been held to be admissible to contradict the party when testifying in another case.^ But silence during an adversary's testimony cannot, in any view, be imputed to a party as an admission." And a party who neglects to contradict the tes- timony of an adverse witness is not precluded from disputing such testimony at a subsequent trial.* § 1140. When accounts are presented, the party to whom they are handed is not expected to speak ; and his silence gji^^^g ^^ under such circumstances is not ordinarily to be treated reception . of accounts as an admission of the debt.' let, with business men, noadmis- the undue retention of an account without exceptions, ^^°°' when the practice is to return accounts in a reasonable time, if ob- jected to, with the objections, may give rise, as against the party retaining, to a presumption of fact, whose strength depends upon the circumstances of the concrete case.' In fine, whenever accounts ' Blanchard v. Hodgkins, 62 Me. 120. 195 ; Mellon v. Campbell, 11 Penn. St. 2 Richards v. Morgan, 4 B. & S. 641. 415 ; Quarles v. Llttlepage, 2 Hen. & 2 Unger v. Wiggins, 1 Rawle, 331. M. 401 ; Robertson v. Wright, 17 Grat. See supra, § 1118. 534 ; Bright v. Coffman, 15 Ind. 371 * Lord y. Bigelow, 124 Mass. 185. Gartner v. Boiler, 54 Mich. 333 See supra, § 1118. Churchill v. FuUiam, 8 Iowa, 45 5 Broyles v. State, 47 Ind. 251. Glenn v. Salter, 50 Ga. 170. See Stiles " McCormiok v. R. R., 99 N. Y. 65. u. Brown, 1 Gill (Md.), 350. ' Glbney v. Marohay, 34 N. Y. 301 ; s Freeland v. Heron, 7 Cranoh, 147 Champion v. Joslyn, 44 N. Y. 653; Wiggins v. Burkham, 10 Wall. 129 Darlington v. Taylor, 3 Grant (Penn.), Oil Co. v. Van Etten, 107 U. S. 325 327 § 1140.] THE LAW OF EVIDENCE. [book III. are exhibited to a party who is interested in them (e. ^., an agent's accounts to his principal, or a partner to a copartner), and are not excepted to in a reasonable titne, this is an implication of assent.* It has also been held that a banker's pass-book, when not excepted Hopkirk v. Page, 2 Brook. 20 ; Hayes V. Kelley, 116 Mass. 300; Manhattan Co. V. Lydig, 4 Johns. R. 377 ; Hutch- inson V. Bank, 48 Barb. 302 ; Phillips o. Tapper, 2 Penn. St. 323 ; Tarns v. Bul- litt, 35 Penn. St. 308 ; Tarns v. Lewis, 42 Penn. St. 402; Darlington ./.Tay- lor, 3 Grant (Penn.), 195 ; Randel u. Ely, 3 Brewst. 270 ; Robertson v. Wright, 17 Grat. 534 ; Miller v. Bruns, 41 111. 293 ; Sheppard v. Bank, 15 Mo. 143; Evans v. Evans, 2 Coldw. 143; Webb V. Chambers, 3 Ired. L. 374 ; Lever v. Lever, 2 Hill (S. C.) Ch. 158 ; McCuUooh V. Judd, 20 Ala. 703 ; Free- man u. Howell, 4 La. An. 196. See Boody V. MoKenney, 23 Me. 517. "The principle which lies at the foundation of evidence of this kind is, that the silence of the party to whom the account is sent warrants the infer- ence of an admission of its correctness. This inference is more or less strong according to the circumstances of the case. It may be repelled by showing facts which are inconsistent with it ; as that the party was absent from home, suffering from illness, or ex- pected shortly to see the other party, and intended and preferred to make his objections in person. Other cir- cumstances of a like character may be readily imagined. Lockwood u. Thome, 18 N. Y. 289. As regards merchants residing in different countries, .Judge Story says : ' Several opportunities of writing must have occurred.' We see no objection to the rule as he layi? it Slovtu, in respect to parties in the same country. When the account is admit- ted in evidence as a stated one, the burden of showing its incorrectness is 328 thrown upon the other party. He may prove fraud, omission, or mistake, and in these respects he is in no wise con- cluded by the admission implied from his silence after it was rendered. Per- kins V. Hart, 11 Wheaton, 256. The proposition, that what is reasonable time in such cases is a question for the jury, as laid down by the court below, cannot be sustained. Where the facts are clear it is always a question exclu- sively for the court. The point was so ruled by this court in Toland v. Sprague, 12 Peters, 336. See, also, Lookwood V. Thorne, 1 Kernan, 175. Where the proofs are conflicting, the question is a mixed one of law and of fact. In suqji oases the court should instruct the jury as to the law upon the several hypotheses of- fact insisted upon by the parties." Swayne, J., Wiggins V. Burkham, 10 Wall. 131. A distinction has been taken in Ire- land between such accounts as are sent by post, and those delivered by hand; and it has been held that the former, though kept by the party to whom they were sent without observation, are not ad- missible against him as evidence that he had acquiesced in their contents. Price V. Ramsay, 2 Jebb & Sy. 338, cited in Taylor's Evidence, § 735. 1 Slierman v. Sherman, 2 Vern. 276 ; Tiokel y. Short, 2 Ves. Sr. 239 ; Rich u. Eldredge, 42 N. H. 153; Meyer v. Reiohardt, 112 Mass. 108 ; Oram v. Bishop, 7 Halst. (N. J.) 163 ; Darling- ton c. Taylor, 3 Grant (Penn.), 105 ; Phillips <,. Tapper, 2 Penn. St. 323 ; Lever v. Lever, 2 Hill (S. C.) Ch. 158 ; Rayue v. Taylor, 12 La. An. 766. CHAP. XIII.] ADMISSIONS : BY SILENCE OR CONDUCT. [§ 1142, So of invoices. to, is evidence of acquiescence by the customer of the principles on which the accounts are made up.' The raising an objection to a particular item may be primd facie regarded as an assent to the items to which no objection is made.^ When deposits are proved, the burden is on the bank to show counter-payments.* § 1141. What has been said as to accounts applies to invoices. An invoice makes a primd facie case against a business man who receives and retains it without dissent.* § 1142. Admissions by silence, as well as admissions gjig^t by speech, may have a contractual force, and may bind admisBions the party to whom they are imputable as effectually as duct may if they were spoken. When they are so interwoven with ^^ °^' acts as to put the actor in a specific attitude towards other per- sons, by which such other persons are induced to do or omit to do a particular thing, then he may be estopped from subsequently denying that he occupied such position, and is compelled to make good any losses which such other parties may have sustained by his course in this relation. In such cases, however, it must appear that the party complaining changed his situation in con- sequence of the conduct of the other party, and that the conduct of such other party was calculated to have this effect." Aside from this position, conduct is always admissible when from it an admis- ' Willianison v. Williamson, L. R. 7 Eq. 542. It should be remembered that an account sent by a creditor to a debtor has been held in equity evidence of a contract ; Morland v. Isaac, 20 Beav. 392 ; and even where the account, al- though made out, was not sent in, a contract was implied. Bruce v. Garden, 17 W. R. 990. '' Chisman v. Count, 1 Man. & Grr. 307. 3 De Land o. Bank, 111 111. 323. ■* Field V. Moulson, 2 Wash. C. C. 155. Though see Wolf v. Ins. Co., 20 La. An. 383 ; and see Dows v. Bank, 91 U. S. 618. 5 See supra, § 1085 ; Pickard i>. Sears, 6 A. & E. 474 ; Atty.-Gen. v. Stephens, 1 Kay & J. 748 ; Harrison v. Wright, 13 M. & W. 820 ; Miles v. Furber, L. R. 8 Q. B. 77 ; Dairy Ass., II Bkrt. Reg. 253; Carroll t. R. R., III Mass. 1 ; Connihan v. Thompson, 111 Mass. 270; Rice v. Barrett, 116 Mass. 312 ; Hexter tting . . another to sert his claim to such property against innocent third deal with parties dealing with B. as absolute owner.^ On the erty^maj' same principle, where A. by act or word renounces to B. ^^ p^^ 35 ; Barnard v. Campbell, 55 N. Y. 456 ; Comstock v. Smith, 26 Mich. 306 ; People V. Brown, 67 111. 435 ; Peters v. Jones, 35 Iowa, 512 ; Crawford v. Giiin, 35 Iowa, 543 ; Drake v. Wise, 36 Iowa, 476 ; Smith v. Penny, 44 Cal. 161 ; Dresbaeh v. Minnis, 45 Cal. 223 ; May u. R. R., 48 Ga. 109 ; Thomas v. Pullis, 56 Mo. 211. See Bigelow on Estoppel, 437 et seq. "When one," says Lord Denman, " by his words or conduct (and this includes silence) wilfully causes an- other to believe the existence of a cer- tain state of things, and induces him to act on that belief, so as to alter his previous position, the former is con- cluded from averring against the latter a different state of things as existing at the same time." Per Lord Denman, Pickard v. Sears, 6 A. & E. 474; cf. Attorney-General v. Stephens, 1 K. & J. 724. By the term "wilfully," in the above rule, it has been laid down (per Parke, B., Freeman v. Cooke, 2 Exch. 663) that " we must understand, if not that the party represents that to be true which he knows to be untrue, at least that he means his representation to be acted upon, and that it is acted upon accordingly ; and if, whatever a man's real intention may be, he so conducts himself that a reasonable man would take the representation to be true, and believe that It was meant that he should act upon it, and he does act upon it as true, the party making the representation would be equally precluded from contesting its truth and conduct by negligence or omission ; where there is a duty cast upon a per- son, by usage of trade or otherwise, to disclose the truth may often have the same effect." Hence negligence, in doing an act calculated to mislead a, prudent business man, may estop. Manufact. Bank v. Hazard, 30 N. Y. 226; Horn v. Cole, 51 N. H. 287; Preston v. Mann, 15 Conn. 118 ; Pierce V. Andrews, 6 Cush. 4 ; McKelvey v. Truby, 4 Watts & S. 231 ; Kirk v. Hart- man, 63 Peun. St. 97 ; Rice u. Bunce, 49 Mo. 231 ; and see Bigelow on Es- toppel (2d ed.), 490-1 ; 4 Southern Law Rev. 647. 1 Kinney v. Whiton, 44 Conn. 262 ; Mayenborg v. Haynes, 50 N. Y. 675. Infra, § 1150. 2 Kerr on Fraud, 298 ; 1 Story Eq. Jur. § 384 ; Railroad Co. v. Dubois, 12 Wall. 47 ; Dewey v. Field, 4 Met. 381 ; Neven v. Belknap, 2 Johns. 573; Hope V. Lawrence, 50 Barb. 258 ; Carpenter 0. Carpenter, 10 C. E. Green, 194; Burke's Est., 1 Pars. Eq. 473 ; Adlum V. Yard, 1 Rawle, 171 ; Com. i\ Green, 4 Whart. 604; Carr v. Wallace, 7 Watts, 400 ; Chapman v. Chapman, 59 Penn. St. 214; Hinds v. Ingham, 31 111. 400. A negligent misstatement of law may estop. Storrs v. Baker, 6 Johns. Ch. 166. Supra, § 1079 ; infra, § 1150. See, also, Loud Gold Co. v. Blake, 24 331 § 1146.] THE LAW OF EVIDENCE. [book III. a particular claim, on the faith of which renunciation B. parts with certain rights, A. cannot afterwards set up such claim against B." § 1145. Again: if A., a creditor of B., directly or indirectly holds himself out as approving a general assignment by B. to C, A. is afterwards estopped from disputing such assignment as against third parties.^ So, as a general rule, we may say that whenever a representation of a fact (as distinguished from a representation of an inten- tion)' has been made or assented to by one party for the purpose of influencing another's conduct, and this representation has been acted on by the latter to his loss, this loss may be redressed in equity if not in law.* § 1146. As we have already observed, falsity, in cases of bilat- eral admissions, does not aifect liability. Hence where parties And so as to any con- tractual representa- tion of a fact. Fed. Rep. 191 ; Hervey ... R. R., 28 Fed. Rep. 169 ; St. Louis Smelting Co. V. Green, 4 McCrary, 232 ; Tibbetts v. Shapleigh, 60 N. H. 487 ; Green v. Smith, 57 Vt. 268 ; GrifSn v. Lawrence, 135 Mass. 365 ; May u. Gates, 137 Mass. 389 ; Aldrioh v. Billings, 14 R. L 233; Cooper, in re, 93 N. Y. 507; Weaver o. Lutz, 102 Penn. St. 593; Grim's Appeal, 105 Penn. St. 375 ; Fidelity Co.'s Appeal, 106 Penn. St. 144 ; Kimball .,. Lee, 40 N. .T. Eq. 403 ; Swayze v. Carter, 41 N. J. Eq. 231; Burns i-. Gallagher, 62 Md. 462 ; Brid- enbaugh v. King, 42 Ohio St. 410; Athens v. R. R., 72 Ga. 800; Giddens V. Crenshaw, 74 Ala. 471 ; Larkin v. Mead, 77 Ala. 485 ; Gilmore v. Gilmore, 109 111. 277 ; Whipple v. Whipple, 109 111. 418 ; South Park «. Todd, 112 111. 379 ; Hill V. Blackwelder, 113 III. 283 ; Pool V. Breeze, 114 111. 594 ; Franee v. Haynes, 67 Iowa, 479. ' Goodell V. Bates, 14 R. I. 65 ; Beals V. Lewis, 43 Ohio St. 220 ; Roberts v. Davis, 72 Ga. 819 ; Wilkinson v. Learey, 74 Ala. 243 ; Erskine v. Lowenstein, 82 Mo. 301 ; EsooUe v. Franks, 67 Cal. 137. 2 Guiterman v. Landis, 1 Weekly Notes, 622. 332 ' Taylor's Evidence, § 771, citing Jorden v. Money, 5 H. of L. Cas. 185. * Hammersley v. Baron de Biel, 12 CI. & Fin. 45, 62, n., per Lord Cotten- ham ; 88, per Lord Campbell ; Neville .-. Wilkinson, 1 Br. C. C. .543 ; Mon- tefiore v. Monteflore, 1 W. Bl. 363 ; Bentley v. Maekay, 31 Beav. 155, per Romilly, M. R. ; Laver v. Fielder, 32 L. J. Ch. 375, per Romilly, M. R. ; 32 Beav. 1, S. C. ; Gale v. Lindo, 1 Vern. 475 ; Jorden v. Money, 5 H. of L. Cas. 185 ; Money v. Jorden, 15 Beav. 372; Hutton V. Rossiter, 7 De Gex, M. & G. 9 ; Pulsford v. Richards, 17 Beav. 87, 94, per Romilly, M. R. ; Yeomans i'. Williams, 1 Law Rep. Eq. 184; Hodg- son V. Hutchinson, 5 Vin. Abr. 522; Cookes V. Mascall, 2 Vern. 200 ; Wauk- ford V. Fotherly, Ibid. 322; Luders u. Anstey, 4 Ves. 501. See Wright v. Snowe, 2 De Gex & Sm. 321 ; Mauusell V. White, 4 H. of L. Cas. 1039 ; Bold V. Hutchinson, 24 L. J. Ch. 285, per Romilly, M. R. ; 20 Beav. 258, 5. C. ; 5 De Gex, M. & G. 558, 5. C. on appeal ; Traill v. Baring, 4 Giff. 485 ; S. C. cited Taylor's Ev. § 185. CHAP. XIII.] ADMISSIONS : BT SILENCE OR CONDUCT. [§ 1147. have knowingly agreed to act upon an assumed state of facts, their rights will be made to depend on such assumption, and parties not upon the truth.' Thus, it has been held in England, ^^'°™g}y [ ' cj ! contracting that if an agent or a workman knowingly renders an on errone- untrue account to his principal or employer, and such sumption account is adopted by the party to whom it is given, it terwards^' cannot afterwards be gainsaid by the person who rendered repudiate, it.^ A bond fide purchaser, also, of a non-negotiable security, from one upon whom the owner has conferred the apparent ownership, ob- tains a good title against the owner, who is estopped from asserting title thereto.* § 1147. Another illustration of the rule above given is, that a party selling or assigning cannot, unless there be fraud p ,, or gross mistake, dispute his right to make the sale, as ing cannot against his vendee or assignee.* It has been also held validity that a corporation issuing bonds purporting to be exe- Latas^t cuted in conformity with statute cannot, as against bond purchaser. fide holders of such bonds, deny such conformity ;* that where commissioners were empowered by a local act to issue mortgage securities, they cannot, as against a bond fide holder for value, set up an illegality in the original issue of any security f and that a company cannot rely on an informality in the issue of their deben- tures as an answer to a petition for winding up.' It is also laid down that where a company registers a person as a shareholder, and induces him, on the faith of such registration, to pay a call, they cannot be allowed to dispute his title to the shares.* 1 Supra, § 1087 ; M'Cance u. R. R. = Knox Co. v. Aspinwall, 21 How. Co., 3 H. & C. 343. 539 ; Bissell u. JefFersonvllle, 24 How. 2 Molton V. Camroux, 2 Ex. R. 487 ; 287 ; Cowdrey v. Vandenburgh, 101 U. aff. in Ex. Ch. 4 Ex. R. R. 17. See, S. 572 ; Society of Sayings v. New Lon- also. Cave v. Mills, 7 H. & N. 913 ; don, 29 Conn. 174. See South Ottawa Skyring u. Greenwood, 4 B. & C. 281 ; u. Perkins, 94 U. S. 60, cited supra, Shaw V. Picton, Ihid. 715. § 290. 8 Jarvis v. Rogers, 18 Mass. 105; ^ Wehb w. Heme Bay Commissioners, Moore v. Bank, 55 N. Y. 41 ;,Bank v. L. R. 5 Q. B. 642 ; 19 W. R. 241. See Livingston, 74 N. Y. 223; and see Dooley v. Cheshire, 15 Gray, 494; Cowdrey w. Vandenburgh, 101 U. S. 572. Stoddart v. Shetucket, 34 Conn. 542. * See Bigelow on Estoppel, 452-467 Mangles v. Dixon, 1 M. & Gord. 446 R^msden v. Dyson, L. R. 1 H. L. 129 Rolt V. White, 3 De Gex, J. & S. 360 ' Re Exmouth Dock Co., L. R. 17 Eq. 181 ; 22 W. R. 104. 8 Hart V. Prontino, etc. Gold Mining Co., L. R. 5 Ex. Ill ; ReBahia& Fran- Beaufort V. Neald, 12 CI. & F. 249. oisoo Ry. Co. v. Tritten, L. R. 3 Q. B. 333 § 1148.] THE LAW OF BVIDENCB. [BOOK III. § 1148. Parties interested in real estate are in like manner pre- cluded from asserting any latent equity they may hold Owner of against a bond fide purchaser or incumbrancer, whom land bound » j ^ • i, • i in the same they have permitted to purchase or incumber without **^' notice of their equity, when they were themselves privy to such purchase or incumbrance.' The following canons on this point have been laid down by the law lords in the English House of Lords : " If a stranger begins to build on land supposing it to be his own, and the real owner, perceiving his mistake, abstains from setting him right, and leaves him to persevere in his error, a court of equity will not afterwards allow the real owner to assert his title to the land. But if a stranger builds on land knowing it to be the property of another, equity will not prevent the real owner from afterwards claiming the land, with the benefit of all the expenditure upon it. So if a tenant builds on his landlord's land, he does not, in the absence of special circumstances, acquire any right to prevent the landlord from taking possession of the land and buildings when the tenancy has determined."^ By Lord Kings- down it was said, in addition, that " If a man under a verbal agree- ment with a landlord for a certain interest in land, or what amounts to the same thing under an expectation created or encouraged by the landlord that he shall have a certain interest, takes possession of such land with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord and without objection by him, lays out money upon the land, a court of equity will compel the landlord to give effect to such prom- ise or expectation."^ So where the defendant in an execution, from whom a waiver of an inquisition has been fraudulently obtained, is present at the sheriff's sale under the inquisition, but gives no notice of his claim based on the fraudulency of the waiver, he is afterwards estopped from disputing the validity of the sale.* Of incumbrances or assignments of record, however, such notice is not necessary.* .584 ; 9 B. & S. 844, S. C. See, also, Dyson, L. R. 1 H. of L. 129 ; affirming Webb V. Heme Bay Improving Com., Gregory f;. Mighell, 18 Ves. 328. L. R. 3 Q. B. 642, 5. C. ' Jackson u. Morter, 82 Penn. St. > See cases cited supra, §§ 1142-5. 291; relying on Hageman «. Salisberry, See, also, Gregory v. Mighell, 18 Ves. 74 Penn. St. 280 ; and qualifying Hope 328. I,. Everhart, 70 Penn. St. 234 ; and see 2 Ramsden i'. Dyson, L. R. 1 H. of L. folly cases cited supra, § 1144. 129. s Sulphine t'. Dunbar, 55 Miss. 265. s Lord Kingsdown, in Ramsden .;. 334 CHAP. XIII.] ADMISSIONS : BY SILENCE OR CONDUCT. [§' 1148. Whether estoppels of this class can pass a title, as against the statute of frauds, is a question still open to doubt.' ' In Hays v. Levingston, 34 Mich. 384, Cooley, J., maintains that where the statute requires the transfer in writing, such transfer cannot be worked hy estoppel. From this opinion the fol- lowing passages are extracted : — " It is not to he denied, however, that there are several cases that apply the principle of estoppel indiscriminately to both real and personal estate. The cases in Maine are very decided. Hatch i;. Kimball, 16 Me. 147 ; Durham v. Al- den, 20 Me. 228 ; Rangeley w. Spring, 21 Me. 137 ; Copeland v. Copeland, 28 Me. 525 ; Stevens v. McNamara, 36 Me. 176 ; Bigelow v. Foss, 59 Me. 162. These cases appear to have overruled Hamlin v. Hamlin, 19 Me. 141. The following are usually referred to as supporting the Maine cases : McCnne V. MeMichael, 29 Geo. 312 ; Beauplaud V. McKeen, 28 Penn. St. 124; Shaw v. Bebee, 35 Vt. 205 ; Brown v. Wheeler, 17 Conn. 345 ; Brown v. Bowen, 30 N. Y. 519 ; Basham v. Turbeville, 1 Swan, 437. Of these the Georgia case re- lated to a parol partition of slaves, acquiesced in until after the death of one of the parties, and was decided without any discussion of, or reference to, the distinction between real and per- sonal estate. The case in Pennsylvania was a suit on a promissory note given on a purchase of lands, the payment of which was resisted on the ground of failure of title. The persons in whom the title was alleged to be had been the plaintiff's agents in the sale, and had been paid a commission for making it ; and they were held to be estopped from denying the plaintiff's right. It is to be observed of this case that the title was only incidentally in question, and also that in Pennsylvania the distinc- tion between legal and equitable reme- dies is not kept up. In the Vermont case, the court is contented to dispose of the question very briefly, by saying that the rule of estoppel, which is ap- plied to personal property ' upon rea- son and principle, to prevent fraud and promote justice, should he extended to real property.' It would have been more satisfactory if the court had pointed out on what ground, when the legislature, ' to prevent frauds and promote justice,' had applied wholly different rules to the transfer of personal property and of real prop- erty, the courts would justify their action in venturing to abolish the dis- tinction. The Connecticut case was one in which the question of estoppel related to a distribution of property, which, though not in pursuance of the statute, had been sanctioned by a writ- ten agreement of the parties. In the New York case the complaint was of the flooding of the plaintiff's mill by a dam which let the water back upon it ; and the question was whether the defendants were estopped from assert- ing title to the land on which the mill stood, by the fact that their ancestor, through whom they claimed, had as- serted his right at the time the plain- tiffs bought the land and built the mill, though aware of all the facts. The case was begun and tried under the Code, which does away with the distinction between legal and equitable actions. The case in Swan goes to the extreme of sustaining an estoppel against an in- fant, and certainly should not be fol- lowed in this state. Ryder ». Flanders, 30 Mich. 336." "Equity," such is the distinction taken, "may always compel the owner of the title to release it, when that is the proper redress for a fraud commit- 385 § 1150;] THE LAW OF EVIDENCE. [book III. Subordi- nate in title cannot dis- pute the title under which he takes, nor bailee that of bailor. § 1149. As a general rule, a party taking a subordinate title is precluded (unless there be fraud) from maintaining that the party from whom he takes had no title at the time of the transfer.' Hence a licensee is estopped from denying the title of licensor to grant the license ; and consequently a licensee of a patent cannot dispute the title of the pat- entee.' A tenant cannot dispute his landlord's title,' nor can an agent dispute that of his principal.^ A bailee, also, is estopped from denying that his bailor had at the time the bailment was made authority to make it," though when the bailee is evicted by title paramount he can set up such title against the bailor.^ § 1150. To constitute an estoppel, however (whether the alleged estopping act consist in suppression or assertion), the Other par- partv alleged to be influenced must in some way change ty's action f . -^ . . ° . r ^u • ■ ^^ ? must be af- his position in consequence of the impression thus made the mi&^° upon him.' In other words, the estopping act must be leading either contractual as distinguished from non-contractual,' ted by him in respect to the title ; but the remedy is properly administered by compelling the fraudulent owner to con- vey, instead of treating the case as one of estoppel in the strict sense." It was consequently held that title to realty cannot be transferred at law merely by the application of the doc- trine of estoppel ; and that where the owner of realty denied his own title thereto, and procured its sale through another, to one who was ignorant of his rights, but afterwards asserted his title in a court of law, he could not be es- topped from doing so; but that if any relief conld be had against him, it must be in equity. 1 Sanderson v. CoUman, 4 M. & G. 209 ; Stott V. Rutherford, 92 U. S. 107. 2 Doe V. Baytop, 3 A. & E. 188 ; Cross- ley V. Dixon, 10 H. L. Cas. 304 ; Kins- man V. Parkhurst, 18 How. 289. ^ Bigelow on Estoppel, 350 ; Williams V. Heales, L. R. 9 C. R. 171 ; Knight v. 336 Smythe, 4 M. & S. 347 ; Balls v. West- wood, 2 Camp. 12 ; Page v. Kinsman, 43 N. H. 328 ; Bailey u. Kilburn, 10 Met. 176 ; Miller v. Lang, 99 Mass. 13 ; Hawes v. Shaw, 100 Mass. 187 ; Whaliu V. White, 25 N. Y. 462. • Miles V. Furber, L. R. 8 Q. B. 77 ; Dixon «. Hammond, 3 B. & Aid. 310. See Whart. on Agency, §§ 242, 573, 761. 6 Gosling u. Birnle, 7 Bing. 338 ; Cheesman v. Exall, 6 Exc. 341 ; Rogers V. Weir, 34 N. Y. 463 ; Lund ». Bank, 37 Barb. 129 ; King v. Richards, 6 Whart. 418. 6 Biddle ». Bond, 6 B. & S. 225. See Sinclair v. Murphy, 14 Mich. 392 ; Dix- on V. Hammond, 2 B. & A. 310 ; Stonard V. Dunkin, 2 Camp. 344 ; Hall v. Grif- fin, 10 Bing. 246 ; Zulietta v. Vinent, 1 De Gex, M. & G. 315 ; Knights «. Willen, L. R. 5 Q. B. 660. ' See cases cited supra, § 1136. 8 See supra, §§ 1078, 1081. CHAP. XIII.] ADMISSIONS : BY SILENCE OR CONDUCT. [§ 1150. or must be infected with such negligence as was likely, mustim- ° ° •" pose a lia- in the usual order of things, to have led the party injured biiity based to incur the damage of which he complains.* The latter contract or phase is thus stated : " If, in the transaction itself which °° "®sii- r ' gence. IS in dispute, one has led another into the belief of a certain state of facts by conduct or culpable negligence calculated to have that result, and such culpable negligence has been the prox- imate cause of leading, and has led, the other to act by mistake upon such belief to his prejudice, the second cannot be heard afterwards as against the first to show that the state of facts referred to did not exist. "^ Thus, a party who draws a check so negligently as to enable a holder to fill in blank so as to elude the most skilful criti- cism, cannot throw its loss on , Cheque Bank, L. R. 1 C. 1 Arnold P. D. 578. 2 1 Story's Eq. 391 ; Carr v. R. R., L. R. 10 C. P. 316. Supra, §§ 1144-6. "To tlie same purport is the lan- guage of the adjudged cases. Thus it. is said by the Supreme Court of Penn- sylvania, that ' The primary ground of the doctrine Is that it would be a fraud In a party to assert what his previous conduct had denied, when on the faith of that denial others have acted. The element of fraud is essential either in the intention of the party estopped, or in the effect of the evidence which he attempts to set up.' Hill v. Epley, 31 Penn. St. 334 ; Henshaw u. Bissell, 18 Wall. 271 ; Biddle Boggs v. Merced Mining Co., 14 Cal. 368 ; Davis v. Da- vis, 26 Ibid. 23 ; Commonwealth o. Moltz, 10 Barr, 531 ; Copeland v. Cope- land, 28 Me. 539 ; Delaplaine v. Hitch- cock, 6 Hill, 14 ; Haves v. Marchant, 1 Curtis G. C. 136 ; Zuohtman v. Robert, 109 Mass. 53. And it would seem that to the enforcement of an estoppel of this character with respect to the title of property, such as will prevent a, party from asserting his legal rights, and the effect of which will be to trans- fer the enjoyment of the property to i another, the intention to deceive and VOL. II. — 22 the bank who pays the check.^ mislead, or negligence so gross as to be culpable, should be clearly established. There are undoubtedly cases where a party may be concluded from asserting his original rights to property in conse- quence of his acts or conduct, in which the presence of fraud, actual or con- structive, is wanting ; as where one of two innocent parties must suffer from the negligence of another, he through whose agency the negligence was occa- sioned will be held to bear the loss ; and where one has received the fruits of a transaction, he is not permitted to deny its validity whilst retaining its benefits. But such oases are generally referable to other principles than that of equitable estoppel, although the same result is produced ; thus the first case here mentioned is the aflixing of liability upon the party who from neg- ligence indirectly occasioned the inj ury , and the second is the application of the doctrine of ratification or election. Be this as it may, the general ground of the application of the principle of equi- table estoppel is as we have stated." Field, J., Brant v. Coal Co., 93 U. S. 326. 3 Young V. Grote, 4 Bing. 253. See Greenfield Bk. u. Stowell, 123 Mass. 198 ; MoGrath v. Clark, 56 N. Y. 34 ; cf. Lehman v. R. R., 12 Fed. Rep. 595. 337 § 1151.J THE LAW OF EVIDENCE. [BOOK III. Unless, however, there is a change of position produced in the party to whom the representations are (either tacitly or expressly) made, or on whom the inculpatory negligence thus acts, no estoppel is worked.' Thus, it has been held that a railroad company is not ordinarily estopped from showing that certain goods, alleged to have been delivered to them as carriers, had never reached their hands, although the plaintiff had received from them advice notes for such goods f nor is a party giving a receipt ordinarily estopped by the receipt.^ § 1151. We have already* noticed that a party may, in assum- A h rac '"^o * character, express himself as effectually as he ter as- could by a verbal statement. It follows from this that cannot when the assumption of a character is the consideration be*repudi-^ for a contract, such assumption binds contractually, and thi'basisof ^^^^P^ ^^^ party making it." Thus, where A., by the another's assumption of a false character, induces a railway com- pany to register him as a proprietor of shares, and, sub- sequently, to bring an action against him for calls on such shares, he will be precluded from disputing the validity of the transfer to him, or from otherwise denying his character as a shareholder.' So, at least in equity, the same liability may be imposed on an infant who has actually deceived a tradesman by fraudulently repre- senting himself to be of full age, and who has thus obtained credit for goods supplied to him.' It has also been ruled that, if a party has taken advantage of, or voluntarily acted under, the bankrupt 1 Infra, § 1155. Straffon's Ex'ors, 22 L. J. Ch. 194, 202, 2 Ibid. ; supra, § 1070. See, also, 203 ; Taylor v. Hughes, 2 Jones & Lat. Gosley v. Birnie, 7 Bing. 339 ; 5 M. & 24. See Swan v. North Brit. Australa- P. 160 ; Hawes v. Watson, 2 B. & C. sian Co., 7 H. & N. 603 ; S. C. in Ex. 540 ; Sheridan v. Quay Co., 4 C. B. N. Ch. 2 New R. 521 ; 2 H. & C. 175 ; and S- 618. 32 L. J. Ex. 273 ; cited in Taylor's Ev. 8 See supra, §§ 1044, 1066, 1144. § 773. That this applies to corpora- * Supra, § 1081. tions, see Pollock on Cont. 118 ; Webb 5 Robinson v. Kitchin, 21 Beav. 365 ; v. Home Bay Co., L. R. 5 Q. B. 642 ; S. C, 8 De Gex, M. & G. 88. See, also, Railroad Co. v. Howard, 13 How. 307 ; supra, § 1087. Pendleton v. Amy, 13 Wall. 297. 6 Sheffield & Manoh. Ry. Co. v. ' Ex parte Unity Jt. St. Mutual Woodcock, 7 M. & W. 574, 582, 583 ; Bank. Assoeiat. in re King, 3 De Gex Cheltenham & Gt. West. Union Ry. & J. 63 ; Nelson v. Stooker, 28 L. J. Ch. Co. V. Daniel, 2 Q. B. 281, 292 ; In re 760 ; 4 De Gex & J. 458, S. C. North of Eng. Jt. St. Bk. Co., ex parte 338 CHAP. XIII.] ADMISSIONS : BY SILENCE OR CONDUCT. [§ 1152. or insolvent laws, he will not be permitted, as against parties to the proceedings, to deny their regularity.' So a party, recognizing another as his agent as to third parties, cannot afterwards repudiate, as to such parties, the agency f and the same rule applies to the recognition by a husband of a wife.' And a party by silently entering a railway car binds himself to pay the fare. § 1152. When, however, there are liabilities to be assumed, a party, merely standing by when informed that he is in a position. which imposes the liabilities, cannot be held on being"^* to have accepted the liabilities. " No authority can be tola of an . unauthor- found for holding that a person, by simply doing nothing, ized act may be rendered liable. The mere fact of standing by estop?" and being told there is something done which you have not authorized cannot fix you with the heavy liabilities which shares in a joint stock company would create."* In other words, in such case the admission is not contractual, and cannot, therefore, estop." It may be otherwise when the admission becomes contractual by a change of position on the other side. Thus, where a company under circumstances which made it doubtful whether the agreement was binding on its shareholders, transferred its business to a new company, one of the terms of agreement being that the shareholders in the old company should receive shares in the new company, and share certificates were sent to all the shareholders in the old com- pany, it was held, that a shareholder who had acknowledged the receipt of and retained the certificates was a shareholder in the new company ; but that one who had taken no notice of the commu- nication was not a shareholder.* And where shares were allotted to a person, in pursuance of an authority signed by him to have his name entered as a shareholder, and he paid calls and received a dividend on such shares, such person was held precluded from deny- ing that he was a shareholder.' 1 Like V. Howe, 6 Esp. 20 ; Clarke v. * Lord Hatherley in Bank of Hindus- Clarke, Ibid. 61 ; Gouldie v. Gunston, tan r. Allison, L. R. 6 C. P. 22. 4 Camp. 381 ; Watson u. Wace, 5 B. & 5 Supra, §§ 1078-1085. C. 153 ; explained in Heane v. Rogers, » Ghallis's case, 19 W. R. 453 ; L. R. 9 B. & C. 586, 587 ; Mercer o. Wise, 3 6 Ch. 266. Esp. 219 ; Harmar v. Davis, 7 Taunt. ' Sewell's case, L. R. 3 Ch. 131 ; 15 577 ; Flower u. Herbert, 2Ves. Sen. 326. W. R. 1031. ' Summerville v. R. R., 62 Mo. 391. "Where a company had registered 2 Johnston v. Allen, 39 How. (N. Y.) an assignment of debentures, it was Pr. 506. See supra, §§ 84, n., 1081. held that they could not equitably set 339 § 1164.] THE LAW OF EVIDENCE. [book III. Admission of ofiSeial character of a person is pri7n& facie ad- mission of his title. § 1153. Closely related to the last position is another on which we shall have further occasion to dilate.' If I recognize another as holding an official character, this, so far as I am concerned, is such an acceptance of his official char- acter as makes it unnecessary for him, in a suit against me in this relation, to prove his official character.^ If I libel another, ascribing to him a particular office, this is a, primd facie case against me, so far as concerns his right to hold such office.* So I cannot, after executing a bond to a corporation, deny the corporate capacity of the corporation to do business.* In each of these cases, however, it is of course open to me to set up fraud by which I was entrapped into the recognition.' And where I have a right to elect between two debtors, it will require a strong case of recognition of the one to preclude me from having recourse to the other.' § 1154. We have already touched generally upon the question how far a memorandum of indebtedness from A. to B., possession found among A.'s papers, can be used by B. against A.' of a party, yf^ should, in this relation, keep in mind that the fact not admis- ' sibie that an unanswered letter, or other document, is found him. in the custody of a party, is not ordinarily ground for off against tlie transferee any claim which they had against the transferor. Higgs u. North Assam Tea Co., L. R. 4 Ex. 87 ; 17 W. R. 1125 ; followed by Lord Romilly, in re North Assam Tea Co., L. R. 10 Eq. 465 ; 18 W. R. 126 ; cf. In re General Estates Co., L. R. 3 Ch. 758 ; 16 W. R. 919. This last doc- trine has recently been extended to a case where there was no registration ; for a company having received notice of an assignment for value of one of their debentures, and acknowledged the receipt by stamping the dupli- cate notice, Malins, V. C, held that this stamping estopped them from set- ting up against the transferee any equi- ties attaching between themselves and the transferor. Brunton's case, L. R. 19 Eq. 302, 23 W. R. 286." Powell's Evidence, 4th ed. 249. 340 ' See infra, §§ 1315-17 ; supra, § 739 a. ' Radford v. Mcintosh, 3 T. R. 632 ; Peacock «. Harris, 10 East, 104 ; Lips- come V. Holmes, 2 Camp. 441 ; Prit- chard v. Walker, 3 C. & P. 212, per Vaughan, B., Dickinson v. Coward, 1 B. & A. 677 ; Inglis v. Spence, 1 C, M. & R. 432 ; Crofton v. Poole, 1 B. & Ad. 561 ; Jay d. Carthage, 48 Me. 353 ; Clough V. Whitoomb, 105 Mass. 482 ; Seeds v. Kahler, 76 Penn. St. 262. '■' Barryman v. Wise, 4 T. R. 368. » St. Louis V. Shields, 62 Mo. 247. 5 Supra, § 931. 6 Curtis I'. Williamson, L. R. 10 Q. B. 87. See Whart. on Agency, §§ 463- 470-2. ' Supra, § 1123. CHAP. XIir.J ADMISSIONS : BY SILENCE OR CONDUCT. [§ 1154. the admission of the document as evidence against him.' Were it otherwise, an innocent man might, by the artifices of others, be charged with a primd facie case of guilt which he might find it difiicult to repel.^ " It was a great deal too broad a proposi' tion to say, that every paper which a man might hold, purporting to charge him with a debt or liability, was evidence against him if he produced it."' " What is said to a man before his face he is in some degree called on to contradict, if he does not acquiesce in it ; but the not answering a letter is quite difierent ; and it is too much to say that a man, by omitting to answer a letter at all events, admits the truth of the statements that letter contains."* It is otherwise, however, when the party addressed in any way invited the sending to him of the letter ;* or when there is any ground to infer that he acted on the letter.* So, if it appear that a letter from A., making certain claims or charges, has been received by B., and partially answered, or otherwise recognized, the letter may be read for what it is worth against B. ;' and so when with such letters goods are forwarded, with bills, and received without return or pro- test.' 1 U. S. V. Crandall, 4 Cranch C. C. 683 ; People ^. Green, 1 Parker C. R. 11. See Learned v. Sillotson, 97 N. Y. 1, and cases cited supra, §§ 618, 1103. 2 R. ^. Hevey, 1 Lea. Cr. C. 232 ; R. u. Plumer, R. & R. 264; Doe v. Frankis, 11 A. & E. 795; Com. v. Eastman, 1 Cush. 189 ; Smiths v. Slioe- maker, 17 Wall. 630 ; Button v. Wood- man, 9 Cush. 262 ; Robinson v. R. R., 7 Gray, 92 ; Fearing v. Kimball, 4 Allen, 125 ; Com. v. Edgerly, 10 Allen, 184 ; People v. Green, 1 Parker C. R. 11 ; Waring v. Tel. Co., 44 How. (N. Y.) Pr. 69. ^ Lord Denman, Doe k. Frankis, 11 A.&E. 795. ' Lord Tenterden, in Fairlie v. Den- ton, 3 G. & P. 103 ; St. Louis R. R. v. Thomas, 85 111. 464. 6 R. V. Cooper, L. R. 1 Q. B. D. 19. In this case it was held that when a letter is put in course of transmission , the postmaster-general holds it as the agent of the receiver, citing R. u. Jones, 1 Den. Cr. C. 551 ; 19 L. J. (M. 0.) 162; R. v. Buttery, cited 4 B. & Aid. 179 ; and that, therefore, let- ters in the post-office, invited by the defendant, might be put in evidence against the defendant, though the let- ters had never been held by him. 6 Dewett V. Piggott, 9 C. & P. 75 ; R. V. Home Tooke, 25 How. St. Tr. 120; R. u. Watson, 2 Stark. 140; Smiths V. Shoemaker, 17 Wall. 630. Supra, § 175. ' Gaskill V. Skeene, 14 Q. B. 668 ; Fenno v. Weston, 31 Vt. 345 ; Allen v. Peters, 4 Phil. R. 78 ; Higgins v. R. R., 7 Jones N. C. (L.) 470 ; Haynes V. Crutchfield, 7 Ala. 189. See, also, Lucy V. Mouflet, 5 H. & N. 229 ; Doe V. Frankis, 11 A. & E. 795 ; Gore v. Hawsey, 3 F. & F. 509 ; Pacific R. R. V. Thomas, 19 Kans. 256. 8 Sturtevant v. Wallack, 141 Mass. 119. 341 § 1155.J THE LAW OF EVIDENCE. [book iir. Where tacit recognition is claimed, the whole proceedings which constitute the recognition must be given. ^ § 1155. We must again, in closing the question of estoppels by- silence and by conduct, recur to the fundamental distinc- sioi^ made tion already laid down'' between contractual and non- ffentiT^'' contractual admissions. A non-contractual admission is, withoutthe at the best, but slight evidence, susceptible of being intentionof , , ' ^ ,.■,.,,. „ .,, , being acted easily rebutted. I'ecuharly is this the case with regard to admissions made without the intention of being acted on, or which, if acted on, have not operated to change on, or with- out being acted on, do not es- top; and so for the worse the condition of the party so acting.' as to third ^^ ..,,,,., ■, ■ ■ i , , i parties : Hence it IS that while an admission may be contractual otherwise as to neg- ligence. as to the party to whom it is made, it may be non-con- tractual as to third parties.* Thus, where a person brought an action of trover for a dog, he was held not to be pre- cluded from proving his title to it, though he had previously author- ized a third party, against whom the defendant had brought a similar action, to deliver it to the defendant, in the place of paying j£50, which was the alternative directed by the verdict ; the third person having, at the time of delivery, demanded back the dog, on behalf of the plaintiif, as his property.* Again, it is now held that a sheriif's return, though it be conclusive evidence in the particular cause in which it is made, or for the purposes of an attachment, does not operate as an estoppel in any other action or proceeding, either as against the sheriff or as against his bailiff.* But at the 1 Mattocks V. Lyman, 16 Vt. 113 ; supra, §§ 1103, 1108. supra, 1078-85. 3 Howard v. Hudson, 2 E. & B. 1 ; Foster v. Ins. Co., 3 E. & B. 48 ; Lack- ington V. Atliertou, 7 M. & Gr. 360 ; Bank of Hindustan ti. Allison, L. R. 6 C. P. 227 ; Nourse c-. Nourse, 116 Mass. 101 ; and see oases cited supra, § 1150. * Supra, § 923. 5 Sandys ?;. Hodgson, 10 A. & E. 472. 5 Stimson v. Farnham, L. R. 7 Q. B. 175 ; Standish v. Ross, 3 Ex. R. 527 ; 342 Brydges v. Walford, 6 M. & Sel. 42 ; 1 Stark. R. 389, n., S. C; .Jackson v. Hill, 10 A. & E. 477; Remraett v. Lawrence, 15 Q. B. 1004 ; Levy v. Hale, 29 L. J. C. P. 127. Holmes v. Clifton, 10 A. & E. 673, overruling Beyuon v. Garrat, 1 C. & P. 154. Freeman v. Cooke, 2 Ex. R. 654, according to Mr. Taylor (Ev. § 782), carries this doctrine to Its extreme limit, if it does not transgress the strict bounds of law. That was an action of trover brought against a sheriff for seizing the plaintiff's goods under a Ji. fa. against his brother, to CHAP. XIII.] ADMISSIONS BY PREDECESSORS IN TITLE. [§ 1156. same time a party who by his negligence causes another person to take a step injurious to himself, may be bound to recompense the party so injured for the injury.' V. ADMISSIONS BY PREDECESSORS IN TITLE. § 1156. The self-disserving admissions of a predecessor in title, as a rule, are admissible against those who follow and claim under him, when such admissions (1) were made when fjr's^ad-" such predecessor was in possession : and (2') are com- missions * • ^ admissible patible with the rule that parol evidence is not admissible against t • * ■ • • SUCC6S80F to vary dispositive writings.^ Declarations of this class which the defendant pleaded not guilty, not possessed, and leave and license. It appeared at the trial that the plain- tiff, fearing an execution, had removed his goods to his brother's house, and when the sheriff's ofBcer came there, the plaintiff, supposing that he had a writ against himself, warned him not to seize the goods, as th^y belonged to his brother. The ofScer, however, producing his writ, which was against the brother, the plaintiff, before the goods were actually seized, told him that they were the property of a third party ; but the ofioer disregarded this last statement, and seized and sold the goods as belonging to the brother. On this state of facts, the jury found that the goods were the plaintiff 's, but that, before the seizure, he falsely stated to the officer that they belonged to his brother, and that the ofScer was there- by ind,uced to seize them as his broth- er's. The court, on this finding, di- rected the verdict to be entered for the plaintiff, on the grounds, first, that the plaintiff did not intend to induce the officer to seize the goods as those of the brother ; and, next, that no reasonable man would have seized the goods on the faith of the plaintiff's representations taken altogether. 1 Supra, § 1150. 2 Supra, § 237 ; Bp. of Meath v. M. of Winchester, 3 Bing. N. C. 183 ; Mad- dison V. Nuttall, 6 Bing. 226 ; 3 M. & P. 544, S. C. ; Doe v. Cole, 6 C. & P. 359, per Patterson, J. ; De Whelpdale u. Milburn, 5 Price, 485 ; Barr v. Mos- tyn, 5 Ex. R. 69 ; Gery v. Redman, L. R. 1 Q. B. Div. 173; Sly v. Dredge, L. R. 2 P. D. 91 (see supra, § 226) ; Trimlestown v. Kemmis, 9 CI. & F. 749 ; Bowen v. Chase, 98 D. S. 254 ; Clark, in re, 9 Blatch. 379 ; Samson V. Blake, 6 Baukr. Reg. 410 ; Dale v. Grower, 24 Me. 563 ; Beedy v. Macom- ber, 47 Me. 451 ; Wentworth v. Went- worth, 71 Me. 72 ; Pike v. Hayes, 14 N. H. 19 ; Badger v. Story, 16 N. H. 168 ; Baker u. Haskell, 47 N. H. 479 ; Smith V. Forest, 49 N. H. 230 ; Hunt V. Haven, 56 N. H. 87; Beecher v. Par- mele, 9 Vt. 352 ; Blake v. Everett, 1 Allen, 248 ; Coyle v. Cleary, 11 6 Mass. 208 ; Pickering v. Reynolds, 119 Mass. Ill ; Flagg u. Mason, 141 Mass. 64 ; Rogers v. Moore, 10 Conn. 13 ; Spauld- ing V. Hallenbeck, 35 N. Y. 204 ; Smith a. McNamara, 4 Lans. 169 ; Kent v. Harcourt, 33 Barb. 491 ; Chadwick v. Fonner, 69 N. Y. 404 ; Townsend v. John- son, 3 Pen. (N. J.) 706 ; Ten Eyck v. Runk, 26 N. J. L. 513 ; Edwards v. Der- riokson, 28 N. J. L. 39 ; Union Canal V. Loyd, 4 Watts & S. 393 ; Sergeant 343 § 1156.] THE LAW OF EVIDENCE. [book hi. are to be received not only in disparagement or diminution of the property which the declarant enjoyed in the premises, but as evi- dence of any fact which is not foreign to the statement against in- terest, and which forms substantially a part of it.^ Thus, the decla- rations of the ancestor, that he held the land as the tenant of a third person, are admissible to show the seisin of that person, in an action brought by him against the heir for the land f and declarations of a former owner as to boundaries are in like manner admissible.^ So, declarations by a tenant have been admitted to show the extent of the tenement occupied by him,^ the amount of rent paid, and the fact of its payment ;* and the name of the landlord.' It may also be generally declared that whatever accompanies a title, in the way of recital or description, qualifies, at least frimd facie, the title. V. Ingeraoll, 15 Penn. St. 343 ; Horn ■o. Brooks, 61 Penu. St. 407 ; Weems V. Disney, 4 Har. & M. 156 ; Gaither 1-. Martin, 3 Md. 146 ; Keener v. Kauff- man, 16 Md. 296 ; Hall u. Bishop, 78 Ind. 370 ; MoSweeny o. McMillan, 96 Ind. 298 ; Comstook v. Smith, 26 Mich. 306 ; Peoples v. Devault, 11 Heisk. 431 ; Yates V. Yates, 76 N. C. 142 ; Gidney V. Logan, 79 N. C. 214; Headen v. Womaok, 88 N. C. 468; Eenwiok v. Renwick, 9 Eich. (S. C.) 50; Rich- ardson V. Mounce, 19 S. C. 477 ; Mo- Clendon u. Wells, 20 S. C. 514 ; Horn V. Ross, 20 Ga. 210 ; Meek v. Holten, 22 Ga. 491 ; Cloud v. Dnpree, 28 Ga. 170 ; Harrell v. Culpepper, 47 Ga. 635 ; Ozment v. Anglin, 60 Ga. 348 ; Brewer V. Brewer, 19 Ala. 481 ; Fraliok v. Pres- ley, 29 Ala. 457 ; Baucum v. George, 65 Ala. 259 ; Moses v. Dunham, 71 Ala. 173 ; Graham i;. Busby, 34 Miss. 272 ; Mulliken o. Greer, 5 Mo. 489 ; Gamble V. Johnston, 9 Mo. 605 ; Potter v. Mc- Dowell, 31 Mo. 62 ; Anderson v. Mo- Pike, 86 Mo. 293 ; Allen v. MoGaughey, 81 Ark. 252 ; Hunt „. Evans, 49 Tex. 311 ; Wright v. Carillo, 22 Cal. 595 ; McFadden v. Wallace, 38 Cal. 51 ; Mc- Fadden v. Ellmaker, 52 Cal. 348. 344 As to declarations of deceased mort- gagor as against mortgagee, see Stowell u. Hazlett, 66 N. Y. 635. See Moss v. Dearing, 45 Iowa, 530, where declarations of a grantor, to the effect that he was indebted to a grantee, when in possession, were admitted to sustain a conveyance when attacked by grantor's creditors. Where heirs set up, in derogation of the widow's rights, an ante-nuptial agreement, the existence of which she denied, it was held that her husband's declarations made during his lifetime were admissible in behalf of the widow. Hunt's Appeal, 100 Penn. St. 590. ' R. V. Birmingham, 1 B. & S. 763. 2 Doe 1). Pratt, 5 B. & A. 223. ' Supra, §§ 237 et seq.; Dawson v. Mills, 32 Penn. St. 302; Cansler v. Fite, 5 Jones (N. C.) L. 424. * Mountnoy v. Collier, 1 E. & B. 630. See infra, § 1161. " R. V. Birmingham, 5 B. & S. 763 ; R. V. Exeter, L. R. 4 Q. B. 341 ; 10 B. & S. 433. 5 Peaceable v. Watson- 4 Taunt. 16 ; Holloway v. Rakes, cited by BuUer, J., in Davies v. Pierce, 2 T. R. 55 ; Doe ». Green, 1 Gow R. 227. CHAP. XIII.J ADMISSIONS BY PREDECESSORS IN TITLE, [§ 1156. Thus, the rule before us admits, as against succeeding holders of a title, maps, recitals in deeds, monuments, and boundaries of which an owner, during his ownership, was author.' Such evidence may be received, not only against privies, but against strangers.^ The reason for this conclusion is, that possession implies primd facie an absolute interest, and any statement which would tend to limit it to a less interest is self-disserving. But for this same reason such declarations cannot be used as evidence of title at all ; they are only evidence of the grounds on which the tenant claims possession.* For he might be but a tenant at will, and yet claim to be a tenant for life, which, being less than a fee, would be presumptively self- disserving, though really self-serving. In short, they are evidence that the occupant never pretended to have more than a limited right or estate, not as showing, or even tending to show, that he really had such a right or estate. As will be hereafter more fully seen, such declarations are not receivable if made after the declarant had parted with his title .^ As a condition of admissibility, it has been said not to be neces- sary that the declarant should be dead,' though the better view is to restrict the admissibility of declarations of living predecessors, in 1 Supra, §§ 237, 1041-2 ; Bridgman O'Brien, 7 Col. 458. See U. S. v. Gris- V. Jennings, 1 Ld. Ray, 734; Daggett wold, 7 Sawy. 311. v. Shaw, 5 Met. 223 ; Davis v. Sher- * Infra, § 1165. Where a grantor, man, 7 Gray, 291 ; Penrose u. Griffith, after conveyance, remained in posses- 4 Binn. 231; Weidman v. Kohr, 4 sion, made improvements, and insured Serg. & R. 174 ; Gratz «. Beates, 45 them, it was held that on the question Penn. St. 495; Allen a. Allen, 45 of whether his deed, absolute in form, Penn. St. 468 ; Cumberl. Valley R. was intended as a mortgage, his decla- R. u. McLanahan, 59 Penn. St. 23 ; rations made in connection with the Grnhb v. Grnbb, 74 Penn. St. 25 ; improvements and insurance were ad- Stnmpf V. Osterhage, 111 111. 82 ; missible. Creighton v. Hoppis, 99 Ind. Davis V. .Tones, 3 Head, 603. 369. 2 Came v. Nicoll, 1 Bing. N. C. 430 ; ^ Walker v. Broadstook, 1 Esp. 458, Davies v. Pierce, 2 T. R. 53 ; Peace- per Thomson B. ; Doe v. Riokarby, 5 able V. Watson, 4 Taunt. 16 ; Doe u. Esp. 4, per Ld. Alvanley. To same Coulthred, 7 A. & E. 235 ; Doe v. Lang- effect is Brolaskeyw. MoClain, 61 Penn. field, 16 M. & W. 497 ; Gery v. Redman, St. 146, as to declarations of occupants L. R. 1 Q. B. D. 161. Supra, § 237. as to nature of their possession. In 3 Tabor v. Van Tassell, 86 N. Y. 642 ; Papendick u. Bridgewater, 5 E. & B. Murphy v. Butler, 75 Ala. 381 ; Morn- 166, Walker v. Broadstook was ques- ing I/. MoBride, 62 Tex. 309 ; Stone v. tioned. 345 § 1157.] THE LAW OF EVIDENCE. [book III. suit against strangers, to cases where such declarations are part of the res gestae.^ § 1157. What has been said is subject to the condition that the declarations sought to be introduced should not con- tradict the record title. For this purpose they cannot be received.^ Nor can they be received when they go to create an incumbrance which, under the statute of frauds, or the recording acts of the jurisdiction, cannot be created by parol. If, however, the former owner of an estate, with the qualifications above noticed, has made an admission in respect to such estate, such admission is to be received in evidence, as against the representatives and successors of such former owner, as much as it would be against such owner himself.' Such dec- larations must not conflict witli record title ; must not be hearsay, and must be self-dis- serving. Burdens and limita- tions pass with estate. ' Papendiok v. Bridgewater, 5 E. & B. 166 ; Taylor's Ev. § 617 ; citing Doe V. Wainwright, 8 A. & E. 700, 701 ; Doe V. LangBeld, 16 M. & W. 513, 514, per Parke, B. In Phillips Rhodes v. Lowry, 54 Ala. 4. See, however, Cooper v. Slade, 6 H. of L. 746. 2 Gerke v. Steam Nav. Co., 9 Cal. 251. 3 Price V. Thornton, 10 Mo. 135. * Toledo R. R. «. Goddard, 25 Ind. 185 ; Waller v. R. R., 83 Mo. 608. 5 Packet Co. v. Clough, 20 Wall. 540 ; Burnside v. R. R., 47 N. H. 554. * To the same effect, see Allen v. Denstone, 8 C. & P. 760; Fairlie v. Hastings, 10 Ves. 123 ; Garth v. How- ard, 8 Bing. 431 ; Langhorn v, Allnut, 4 Taunt. 519 ; Mortimer v. McCallan, 6 M. & W. 58 ; Great W. R. R. o. Willis, 18 C. B. (N. S.) 748 ; Maury v. Tal- madge, 2 McLean, 157 ; Packet Co. v, Clough, 20 Wal. 540 ; Robinson v. R. R., 7 Gray, 92 ; Wakefield v. R. E., 117 Mass. 544; Enos v. Tuttle, 3 Conn. 365 § 1175.] THE LAW OF EVIDENCE. [book III. the same time we must remember that, as has been already seen, the period of the performance of a tort varies upon the concrete case.' § 1175. When ad- Enissions are not by a general agent, in the scope of his busi- ness, nor part of We have already noticed,^ that a principal is estopped, as against the other contracting parties, by such of his agent's representations as were among the inducements leading such other contracting parties to execute the contract. But, as prima fdcie proof against the prin- cipal may also be introduced (in all cases in which the agent is authorized so to speak for the principal) the 250; Sears v. Hayt, 37 Conn. 406; Rockwell V. Taylor, 41 Conn. 59 ; Luby V. R. R., 17 N. Y. 131 ; Anderson „. R. R., 54 N. Y. 334 ; Furst r. R. R., 72 N. Y. 542 ; Price v. R. R., 31 N. J. L. 229 ; Penna. R. R. v. Books, 57 Penn. St. 339; Am. S. S. Co. c/. Landreth, 102 Penn. St. 131 ; Atlantic Ins. Co. o. Carlin, 58 Md. 336 ; Dietrich v. R. R., 68 Md. 347; Va. & Tenn. R. R. v. Sayers, 26 Grat. 329 ; Mich. Cent. R. R. t. Gongaz, 55 111. 503 ; Mich. Cent. R. R. r. Coleman, 28 Mich. 446 ; Mab- ley V. Kittleberger, 37 Mich. 360 ; Os- good V. Bringolf, 32 Iowa, 265 ; Tread- way V. R. R., 40 Iowa, 527; Cramer v, Bnrlington, 45 Iowa, 627; Milwaukee R. R. V. Finney, 10 Wis. 388 ; Hazle- ton V. Bank, 32 Wis. 34; Rounsavell fc. Peese, 45 III. 506 ; Randall u. Tel. Co., 54 Wis. 140; Patterson v. R. R., 4 S. C. 153 ; Griffin v. R. R., 26 Ga. Ill ; East Tenn. R. R. v. Duggan, 51 Ga. 212 ; Cent. R. R. v. Kelly, 58 Ga. 107 ; Mobile R. R. v. Ashcraft, 48 Ala. 15 ; Murphy v. May, 9 Bush. 33 ; Nashville R. R. V. Messino, 1 Sneed, 220 ; Soovill ». Glasner, 79 Mo. 449 ; Kelly v. R. R., 88 Mo. 534; Union Pacific R. R. u. Fray, 35 Kan. 700, and see fully for distinctions stated infra, § 1176. See Bait., etc. R. R. v. Slate, 62 Md. 479. In Vicksburg v. O'Brien, 119 U. S. 99, it was held that the statement of the 366 engineer of a train as to its rate of speed made from ten to thirty minutes after the accident which formed the cause of action, is not admissible in evidence against his employer, the rail- road company. "His declarations," said Harlan, J., "after the accident had become a completed fact, and when he was not performing the duties of engineer, that the train, at the moment the plaintiff was injured, was being run at the rate of 18 miles an hour, was not explanatory of anything in which he was then engaged. It did not accompany the act from which the injuries in question rose. It was, in its essence, the mere narration of a past occurrence, not a part of the res gestae, simply an assertion or repre- sentation, in the course of conversation as to a matter not then pending, and in respect to which his authority as engineer had been fully exerted." S. P. North Hudson R. R. v. May, 48 N. J. L. 401. See, also, cases cited supra, §265. As extending the period of the res gestae, see Malecek v. R, R., 57 Mo. 20. As taking a wider view than that of the text, see Chapman v, R. R., 55 N. Y. 579. > Supra, §§ 256-262. « Supra, § 1170. CHAP. XIII.] ADMISSIONS BY AGENTS. [§ 1175. asrent's non-contractual admissions, made after the con- the r«s , gestae, tract IS executed. Of these admissions, two incidents special are to be noticed: (1.) Being non-contractual and uni- tion must' lateral,' they are not conclusive on the principal ; and, ^^ proved. (2.) They cannot be put in evidence unless authority to make them can be proved. " As a general proposition, what one man says, not upon oath, cannot be evidence against another man. The exception must rise out of some peculiarity of situation, coupled with the declarations made by one. An agent may, un- doubtedly, within the scope of his authority, bind his principal by his agreement ; and in many cases by his acts.' What the agent has said may be what constitutes the agreement of the principal ; or the representations or statements made may be the foundation of, or the inducement to, the agreement. Therefore, if writing is not necessary by law, evidence must be admitted to prove that the agent did make the statement or representation. So, with regard to acts done, the words with which those acts are accompanied fre- quently tend to determine their quality. The party, therefore, to be bound by the act, must be affected by the words. But, except in one or the other of those ways, I do not know how what is said by an agent can be evidence against his principal. The mere asser- tion of a fact cannot amount to proof of it ; though it may have some relation to the business in which the person making that asser- tion was employed as agent."* When, therefore, the admissions are not part of a course of general agency, special authority must be shown.* Peculiarly is this the case with regard to admis- 1 Sde STjpra, § 1083. Steward, 37 Me. 519 ; Burnham v. Ellis, s See infra, § 1177 ; German Ins. Co. 39 Me. 319 ; Woods v. Banks, 14 N. H. ... Grunert, 112 111. 68 ; Branch u. E. 101 ; Page v. Parker, 40 N. H. 47 ; R., 88 N. C. 573 ; Mars v. Ins. Co., 17 Lowe v. R. R., 45 N. A. 370; Barnard S. C. 614 ; McDermott v. R. R., 73 Mo. v. Henry, 25 Vt. 289 ; Upham v. Whee- 516; Verry v. R. R., 47 Iowa, 549; lock, 36 Vt. 27; Wheelock ^. Hard- Schaefer v. Gilden, 3 Col. 15. wick, 48 Vt. 19 ; Corbin i;. Adams, 6 ' Sir W. Grant in Fairlie v. Hastings, Cush. 93 ; Dome v. Man. Co., 11 Cush. 10 Ves. 126. 205 ; Johnson u. Trinity Church, 11 * Infra, § 1183 ; Doe ?;. Roberts, 16 M. Allen, 123 ; Fogg v. Pew, 10 Gray, 409 ; & W. 778 ; Faussett v. Faussett, 7 Eo. Blanchard v. Blackstone, 102 Mass. & Mar. 93 ; Garth v. Howard, 8 Bing. 343 ; Wilson v. Bowden, 113 Mass. 422 ; 451; Chicago v. Greer, 9 Wall. 726; Anderson v. Bruner, 112 Mass. 14; Ins. Co. u. Malone, 21 Wall. 152 ; Lane v. R. R., 112 Mass. 455 ; Rich- Goooh V. Bryant, 13 Me. 886 ; Bank v. mond Works v. Hayden, 132 Mass. 190 ; 367 § 1176.] THE LAW OF EVIDENCE, [book III. sions made by an agent as to the character of a past act as to which his principal is charged with liability.' § 1176. In respect to torts, a distinction is to be noticed between torts based on contract, and torts consisting of a violation of the Sic utere tuo ut non alienum laedas, or, as they are called in the Roman Murray v. Chase, 134 Mass. 92 ; Cort- land Co. V. Herkimer, 44 N. Y. 22 ; Lansing V. Coleman, 58 Barb; 611 ; Happy V. Mosher, 48 N. Y. 313 ; Hoag a. Lament, 60 N. Y. 96 ; First Nat. Bk. V. Ocean Bk., 60 N. Y. 279 ; Runk v. Ten Eyck, 24 N. J. L. 756 ; Fawcett v. Bigley, 69 Penn. St. 411 ; Pier v. Duff, 63 Penn. St. 59 ; Custar v. Gas Co., 63 Penn. St. 381 ; Columb. Ins. Co. v. Masonheimer, 76 Penn. St. 138 ; Bait. E. R. V. School Dist., 96 Penn. St. 65 ; Bradford v. Williams, 2 Md. Ch. 1 ; Wheatley v. Wheeler, 34 Md. 62 ; Bait. & 0. R. R. V. Gallahue, 12 Grat. 655 ; Bait. R. R. 0. Christie, 5 W. Va. 325 ; Renneker ,,••■, ^ 1 each other. the others, under the limitation heretoiore expressed as to agency.' This liability extends to non-contractual as well as to contractual admissions. Thus, where the obligee of a bond filed a bill against two joint and several obligors, alleging that the bond had been delivered up to one of them by mistake, and praying that he, the obligee, might recover the amount due on it, an admission by the party to whom the bond was given up, that it had been delivered to her by mistake, was held to be evidence against the coobligor, though the joint answer of the defendants had traversed the allegation as to mistake, and, simply admitting the delivery of the bond, had stated that the party to whom it was given up had destroyed it.* And incidental statements made by one joint pro- prietor of a theatre have been admitted against his co-proprietors.^ § 1193. Such declarations, however, to be admissible, must relate to a matter of joint business in which there is reciprocal liability ; 1 Kemble v. Farren, 3 C. & P. 623 ; American Fur Co. v. U. S., 2 Pet. 358 ; State V. Soper, 16 Me. 293 ; Davis u. Keene, 23 Me. 69 ; State v. Thibeau, 30 Vt. 100; Martin v. Root, 17 Mass. 222 ; Com. v. Brown, 14 Gray, 419 ; Colt V. Eves, 12 Conn. 243 ; Crippen v. Morss, 49 N. Y. 63; Chester w. Dicker- son, 54 N. Y. 1; Trego v. Lewis, 58 Penn. St. 463; Walker v. Pierce, 21 Grat. 722; Dickinson v. Clark, 5 W. Va. 280; Rollins v. Henry, 84 N. C. 569; Bernhardt v. Smith, 86 N. C. 473 ; Patten v. Ohio, 6 Ohio St. 467 ; Dickerson v. Turner, 12 Ind. 223 ; Falk- ner v. Leith, 15 Ala. 9 ; Stewart r. State, 26 Ala. 44;. Mask v. State, 32 Miss. 405 ; Armstrong v. Farrar, 8 Mo. 627 ; State V. Ross, 29 Mo. 32 ; Irhy v. Brig- ham, 9 Hnmph. 750 ; State v. Hogan, 3 La. An. 714; Tuttle v. Turner, 28 Tex. 759. Where A. and others petitioned for damages for the taking of separate parcels of land by a city in construct- ing water-works, declarations made by A. before the taking to the effect that the lands in the neighborhood would be benefited by the water-works, were ad- mitted against all the petitioners, al- though A. was at the time a member of the city government. Williams v. Taunton, 125 Mass. 34. " Crosse v. Bedingfield, 12 Sim. 35. 3 Kemble v. Farren, 3 C. & P. 623. 381 § 1194.] THE LAW OF EVIDENCE. [book III. mere community of interest, as we will see,* will not be enough to „ , , sustain' such admissibility.* Thus, where a member of Such dec- -^ i . larations a firm of machinists, in Baltimore, engaged in an enter- to ajoint prise for the running of an ice and tow boat, his decla^ business. rations in this relation were held not admissible against his partners in the machine business.' It may be otherwise as to acts and declarations of tenants in common in each other's presence when offered to settle their respective rights.'* ^ 1194. Wherever a settled partnership is first established, the admissions of one partner are admissible against his Admis- ^ , . ° . , Biona of fellow partners, when made as to partnership affairs, dur- reeiprocai- ing the continuance of the partnership.,* though they dbie"'^' cannot be received to prove the partnership.' Even the > Infra, § 1199. " 1 Phil. Ev. 378 ; Brannou v. Hur- sell, 112 Mass. 63 ; Eliott v. Dudley, 19 Barb. 326 ; Union Bank v. Underhill, 102 N. Y. 336 ; Edwards i.. Tracy, 62 Penn. St. 378; White v. Gibson, 11 Ired. L. 283 ; Hilton v. McDowell, 87 N. C. 364; South. Life Ins. Co. v. Wil- kinson, 53 Gra. 545, and cases cited infra, § 1199. See Newan v. Eapier, 57 Miss. 100. s Wells V. Turner, 16 Md. 133. * Crippen v. Morss, 49 N. Y. 63. 5 Rapp V. Latham, 2 B. & Aid. 795; Fox «. Clifton, 6 Bing. 792 ; Latch v. Wedlake, 11 Ad. & E. 959 ; Nicholls v. Dowding, 1 Stark. R. 81 ; R. c. Hard- wick, 11 East, 589 ; Sandilanda v. March, 2 B. & Aid. 673 ; Lincoln v. Claflin, 7 Wall. 132 ; Bank U. S. a. Ly- man, 20 Vt. 666 ; Barrett v. Russell, 45 Vt. 43 ; Smith v. Collins, 115 Mass. 388 ; Gandolfo v. Appleton, 40 N. Y. 583 ; Moers v. Martens, 17 How. Pr. 280; Wells v. Turner, 16 Md. 133; McKee «. Hamilton, 33 Ohio St. 1 ; Adams v. Funk, 53 111. 219 ; Hahn v. Savings Bank, 50 111. 456 ; Bennett v. Holmes, 32 Ind. 108 ; State v. Nash, 10 Iowa, 81 ; Peck v. Lusk, 38 Iowa, 93 ; People V. Pitcher, 15 Mich. 397 ; Mc- 382 Fadyen v. Harrington, 67 N. C. 29; Johnson u. State, 29 Ala. 62 ; Cady v. Kyle, 47 Mo. 346 ; Oldham v. Bentley, 6 B. Mon. 428. Where A., B., and C. sue D. as partners, upon an alleged contract for the shipment of bark, an admission by A. that the bark was his exclusive property, and not that of the firm, has been held receivable against B. and C. Lucas o. De La Cour, 1 M. & S. 249. 6 Ibid.; infra, § 1200; Edwards i>. Tracy, 63 Penn. St. 378 ; Cross v. Lang- ley, 50 Ala. 8 ; Campbell v. Hastings, 29 Ark. 512 ; McCann v. McDonald, 7 Neb. 305. "The declarations of a party to the suit as to the existence of a partner- ship are unquestionably competent to prove him to have been a member of the alleged firm, and who were admit- ted by him to have been the persons composing it. Such declarations are not, however, competent evidence against the others, and it is the duty of the court so to instruct the jury. Tay- lor V. Henderson, 17 S. & R. 453 ; John- ston V. Warden, 3 Watts, 101 ; Haughey V. Striokler, 2 W. & S. 411 ; Lenhart v. Allen, 8 Casey, 312 ; Bowers v. Still, 13 Wright, 65 ; Crossgrove v. Himmel- CHAP. XIII.] ADMISSIONS BY ASSOCIATES. [§ 1195. admissions of a silent partner, not made a party in the case, may- be used against his associates.' § 1195. By Lord Tenterden's Act of 1828 (adopted in several of the United States) one partner cannot, even by a . , written acknowledgment of a debt, either during the knowiedg- partnership, or after its dissolution, take the case out take case of the statute of limitations, as against the other mem- °"atute of bers of the firm.* In New York the same rule is held limitations, at common law as to claims which would otherwise be barred,^ un- less agency may be inferred so as to bind the partners affected.* But in other jurisdictions, such an admission by one partner, after dissolution of the firm, has been held at common law to do away with the statute as to prior partnership liabilities." The same dif- ference of opinion exists as to the power of one joint debtor to bind his co-debtor by his acknowledgment of a debt which would other- wise have expired. The better view is that this power does not exist unless specially conferred, wherever the joint debt is not con- tinuous and in itself confers no authority to either debtor to keep it alive.* rich, 4 p. F. Smith, 203. The same rule has been applied to the admissions of a defendant not served with process, and not, therefore, a party to the issue. Porter v. Wilson, 1 Harris, 641." Sharswood, J., Edwards v. Tracy, 62 Penn. St. 378. Proof of hostile relations between partners may affect credibility, but does not exclude. Western Ass. Co. u. Towle, 65 Wis. 247. 1 Weed V, Kellogg, 6 McLean , 44 ; Fickett u. Swift, 41 Me. 65 ; Webster V. Stearns, 44 N. H. 498 ; Odiorne v. Maxcy, 15 Mass. 39 ; Munson v. Wiok- wire, 21 Conn. 513 ; Chester v. Dicker- son, 54 N. Y. 1 ; Folk v. Wilson, 21 Md. 538 ; Holmes v. Budd, 11 Iowa, 186; Fail v. McArthnr, 31 Ala. 26; American Iron Co. v. Evans, 27 Mo. 552 ; Mamlock v. White, 20 Cal. 598. ' Taylor's Evidence, §§ 537, 675. As to similar statutes in this country, see Bailey v. Corliss, 51 Vt. 366 ; Faulkner V. Bailey, 123 Mass. 538 ; Rogers v. Anderson, 40 Mich. 290. " Van Kensen u. Parmalee, 2 N. Y. 503. See Gaunce v. Backhouse, 37 Penn. St. 350. * Nichols V. White, 85 N. Y. 531. 5 Buxton V. Edwards, 134 Mass. 567; Bissell v. Adams, 35 Conn. 299; Merritt v. Day, 38 N. J. L. 32. But see infra, § 1201 ; Story on Partner- ship, § 324 a. 5 Shoemaker v. Benedict, 11 N. Y. 176 ; Wallis v. Randall, 81 N. Y. 164 ; Slaymaker v. Grundacker, 10 S. & R. 75 ; Buch V. Stowell, 71 Penn. St. 208 ; Hance v. Hair, 25 Ohio St. 349. See, contra, Shapley v. Waterhouse, 22 Me. 497 ; Dennie o. Williams, 135 Mass. 28 ; Caldwell v. Sigourney, 19 Conn. 37. 383 § 1197.] THE LAW OF EVIDBSCE. [book III. Power ceases at dissolu- tion. § 1196. Although, after dissolution of the partnership, the power to bind by admissions ceases,' it may be kept alive by special agreement.'' And it has been further ruled that a self-disserving admission, by a former partner, after the dissolution of the firm, as to a firm transaction which is still unclosed, is admissible, as prima facie evidence against the firm ;* though, if the partner ceases to have any interest in the re- sult, the reason for such admission fails.'' Entries in the partnership books by one partner are admissible, after the partnership is closed, to charge a copartner, when the latter had opportunity to examine the books at the time of entry, and did not dissent." § 1197. In a suit by joint contractors, the admissions of one of their number who acts for the others are receivable as the declarations of all f and hence in a suit against par- ties who have agreed to buy a boat, the admissions of one, in the scope of the business, bind the others.' The admissions of a joint covenantor, no matter how small may be his interest,' are by the same reasoning admissible against his asso- ciates. So as to joint con- tractors and other associates. ' Kilgour V. Finlyson, 1 H. Bl. 155 ; Parker v. Merrill, 6 Greenl. 41 ; Baker V. Stackpoole, 9 Cow. 420 ; Bank of Vergennes u. Cameron, 7 Barb. 143 ; Williams v. Manning, 41 How. (N. Y.) Pr. 454 ; Tassey v. Ciinrch, 4 W. & S. 141 ; Hogg V. Orgill, 34 Penn. St. 344 ; Miller V. Neimerick, 19 III. 172 ; Wins- low I/. Newlan, 45 111. 145 ; Pennoyer V. David, 8 Mich. 407 ; Daniel v. Nel- son, 10 B. Mon. 316 ; Morgan v. Hub- bard, 66 N. C. 394 ; Johnson v. Marsh, 2 La. An. 772; Dowzelot v. Rawllngs, 58 Mo. 75 ; Flowers v. Helm, 29 Mo. 324. Infra, § 1202. "While the partnership continues, the declarations or admissions of each of the partners made in respect to the business of the firm will bind it. But upon the occurrence of a dissolution, this power to bind the firm, by either acts or declarations, comes to an end." 384 Dowzelot V. Rawlings, 58 Mo. 77 ; Sher- wood, J. See Shelmire's Appeal, 70 Penn. St. 285. 2 Burton v. Issit, 5 B. & Aid. 267 ; Ide V. Ingraham, 6 Gray, 106. ' Pritchard v. Draper, 1 Rus. & M. 191 ; Pierce v. Wood, 23 N. H. 519 ; Loomis V. Loomis, 26 Vt, 198 ; Bridge o. Gray, 14 Pick. 55 ; Hitt v. Allen, 13 111. 592 ; Fisher v. Tucker, 1 McCord Ch. 169 ; Cochran v. Cunningham, 16 Ala. 448 ; Curry v. Kurtz, 33 Miss. 24 ; Nalle V. Gates, 20 Tex. 315. * Taylor's Evidence, citing Parker «. Morrell, 2 Phill. 464 ; S. C. 2 C. & Kir. 699 ; Gillinghau v. Tebbetts, 33 Me. 360 ; Coppage v. Barnett, 34 Miss. 621. 5 Dunnell v. Henderson, 23 N. J. Eq. 174. Supra, §§ 1131-3. 8 Bank U. S. u. Lyman, 20 Vt. 666. ' Rotan V. Nichols, 22 Ark. 244. 8 Walling V. Rosevelt, 16 N. J. L. 41. CHAP. XIII.] ADMISSIONS BY ASSOCIATES. B 1199. § 1198. Admissibility, in the cases we have just enumerated, does not depend upon the declarant being summoned as a party to the suit in ■which his declarations are offered. If, at terested, the time of the declarations, he were engaged in a joint ties to smt' enterprise with either of the parties to the suit, his ™ay affect declarations are admissible, when within the scope of the by their ad- ... ■ 1 1 missions, joint interest, against them.' § 1199. There must, however, in order to prejudice parties by each other's declarations, be such a joinder, or concert in the particular matter from which the declaration ema- Mere com- , , . . munity of nates, as makes them each other s representatives in the interest not enterprise. The mere possession of common interests extend does not impose this reciprocal liability f nor will even ^^^ ''^' A.'s joint liability with B., in absence of any proof of agency or other representative capacity, cause A, to be bound by B.'s admissions.^ Thus, the admission of the receipt of money by one of several trustees, joint defendants, but not personally liable, has been held not receivable to charge the other trustees ;* nor the admission of one of several tort-feasors, unless part of the res ges- tae;^ nor can the admission of one executor be received to prove a debt against his co-executors ;* nor the admission of one part-owner of a schooner as to the cost of certain repairs, against the other 1 Whitcombi). Whiting, 2 Dougl. 652; Wood V. Braddick, 1 Taunt. 104 ; Weed 0. Kellogg, 6 McLean, 44 ; Bncknam ». Bariium, 15 Conn. 68, and cases cited supra, § 1192. 2 Fox V. Waters, 12 Ad. & E. 43 ; Soholey v. Walton, 12 M. & W. 514 ; Tullock V. Dunn, R. & M. 416 ; Lamar V. Micou, 112 U. S. 452; Brannon v. Hursell, 112 Mass. 63 ; Elliott v. Dud- ley, 19 Barb. 326 ; Slaymaker v. Gun- dacker, 10 S. & R. 75 ; Edwards u. Tracy, 62 Penn. St. 378 ; Wells v. Turner, 16 Md. 133 ; Eakle v. Clarke, 30 Md. 322 ; Chamberlain v. Dow, 10 Mich. 319 ; Wonderly v. Booth, 19 Ind. 169 ; Blakeney o. Ferguson, 14 Ark. 641 ; Dickenson v. Clarke, 5 W. Va. 280 ; White v. Gibson, 11 Ired. 283 ; South. Life Ins. Co. v. Wilkinson, 53 VOL. II. — 25 Ga. 545 ; McCune v. McCune, 29 Mo. 117 ; McDermottw. Mitchell, 47 Cal. 249. See McElroy u. Ludlum, 32 N. J. L. 828. A bare trustee cannot thus bind his principal. Godbee v. Sapp, 53 Ga. 283. 3 Wallis V. Randall, 81 N. Y. 164. * Davies v. Ridge, 3 Esp. 101 ; Walker V. Dunspaugh, 20 N. Y. 170; Jex v. Board,.! Hun, 157. 5 Carpenter v. Welden, 5 Sandf. 77. " Fox V. Waters, 12 Ad. & E. 43 ; Tul- lock V. Dunn, Ry. & M. 416 ; Scholey v. Walton, 12 M. & W. 514 ; Elwood v. Deifendorf, 5 Barb. 398 ; Hammon v, Huntley, 4 Cow. 493 ; Church v. How- ard, 79 N. Y. 416. See infra, § 1199 a. See Pease W.Phelps, 10 Conn. 62. Com- pare 8 Cent. L. J. 82. 385 § 1199.] THE LAW OF EVIDENCE. [book III. part-owners, they being tenants in common and not partners ;• nor the admission of one of several part-owners or tenants in com- mon against his associates -^ nor for such purpose the admission by one of several members of a board of public oflScers f nor by one of several underwriters on the same policy ;* nor the admissions of some of several legatees as to the insanity of the testator, as against the rest ;" nor, generally, the statements of one of several co-dis- tributees, co-legatees, or co-devisees against another, even though the declarant should be a party to the case, unless concert as to the admissions be proved.* It is otherwise, as we have seen, with declarations of tenants in common, in each other's presence, as to their respective rights.' Nor, notwithstanding the opinion of high authorities to the contrary,' can the admissions of inhabitants of a town or other municipal body be received as evidence against such body.' 1 The New Orleans, 106 U. S. 13. 2 Jaggers y. Binninga, 1 Stark. E. 64 ; MoLellan v. Cox, 36 Me. 95 ; Page V. Swanton, 39 Me. 400 ; Cuyler v. Mc- Cartney, 40 N. Y. 228 ; Dan u. Brown, 4 Cow. 483 ; Pier «. Duff, 63 Penn. St. 63. See Bryant «. Booze, 55 Ga. 438. ' Lookwood i;. Smith, 5 Day, 309 ; Jex V. Board, 1 Hun, 157. * Lambert v. Smith, 1 Cranch C. C. 361. " Irwin V. West, 81 Penn. St. 157 ; McMillan o. McDill, 110 111. 47 ; Cory- ell V. Stone, 62 Ind. 307. 5 Shailerw. Bumpstead,99 Mass. 130; Osgood a. Manhattan Co., 3 Cow. 612 ; Boyd w. Eby, 8 Watts, 66 ; Hauberger V. Root, 6 W. & S. 431 ; Dotts v. Fetzer, 9, Penn. St. 88 ; Clark c. Morrison, 25 Penn. St. 453 ; Titlow v. Titlow, 54 Penn. St. 222; Walkup v. Pratt, 5 Har. & J. 53 ; Forney u. Ferrell, 4 W. Va. 729 ; Thompson t. Thompson, 13 Ohio St. 356 ; McMillan w. McDill, 110 111. 47 ; Hayes v. Burkham, 51 Ind. 130 ; Roberts v. Frawick, 13 Ala. 68 ; Blakey v. Blakey, 33 Ala. 616 ; Prewett 0. Coopwood, 30 Miss. 369 ; Turner v. Belden, 9 Mo. 787 ; Hambright v. Brook- 386 man, 59 Mo. 52. See, contra. Green- leaf's Ev. § 174 ; Atkins c/. Sanger, 1 Pick. 192 ; Jackson v. Vail, 7 Wend. 125. And see Milton v. Hunter, 13 Bush, 163, where it is held that the declarations of one legatee may be re- ceived against another legatee, being appellees on a question of probate, the question being whether there was un- due influence or imposition at the exe- cution of the will, such declarations not being received as admissions, but as declarations against interest. Where several devisees contest the validity of a will, the declarations and admissions of a deceased devisee are admissible in evidence as regards his interest against a devisee who had ac- quired said interest on the ground of privity of estate. Mueller i>. Rebham, 94 111.142. See Hayes t). Burkham, 67 Ind. 359. ' Crippen v. Morss, 49 N. Y. 63. 8 See 1 Greenl. Ev. § 175 ; R. «. Whitley Lower, 1 M. & S. 637 ; R. v. Adderbury, 5 Q. B. 187. ■ 3 See Burlington u. Calais, 1 Vt. 385 ; Low V. Perkins, 10 Vt. 385; Water- town V. Cowen, 4 Paige, 510. CHAP. XIII.] ADMISSIONS BY ASSOCIATES. [§ 1200. § 1199 a. The admission of an heir cannot prejudice the execu- tor ;' nor that of a tenant for life, the remainderman.^ Nor are the declarations of an administrator admissible of heirs, against a special administrator, appointed to act during and'^parSs the adjninistrator's absence from the country.^ Nor, as tonegotia- . . . ble paper. we have seen, do the admissions of an executor in them- selves bind co-executors,^ nor a subsequent administrator de bonis non;'' nor do a sole executor's declarations bind the estate, unless made when acting oflBcially.* Nor does one of two executors' admis- sions bind the estate or his co-executor.'^ Nor can the admission of an indorser of negotiable paper prejudice another bond fide indorser,* though it may be otherwise as to joint indorsers who indorsed in concert.' Where a party takes negotiable paper that is overdue, or with notice, he is open to be affected on trial by the admissions of his predecessors in title," provided such admissions were before the assignment.'' § 1200. Yet we must remember that we cannot prove that a party is jointly interested by his own declarations, and then introduce his declarations for the reason that he is tions^of" iointly interested, even though he be joined in the record, declarant >f J o J cannot This would be equivalent to saying that his declarations prove his ' Osgood V. Manhattan Co., 3 Cow. 612 ; Dillard v. Dillard, 2 Strobh. 89 ; though see Reagan v. Grim, 13 Penn. St. 508, as to cases in which the ad- ministrator is the mere representative of the heirs. 2 Hill V. Roderick, 4 Watts & S. 221 ; Pool u. Morris, 29 Ga. 374. Supra, § 1161. 3 Rush V. Peacock, 2 M. & Rob. 162. See MoArthur v. Carrie, 32 Ala. 75. * See cases cited supra, § 1199 ; Bri- dan V. Allan, 10 111. Ap. 91. But in a suit by A., administratrix of B., against C, son and administra- tor of B.'s husband, as an individual, and not as an administrator, to recover chattels alleged to belong to her estate, C.'s admissions are admissible. Whi- ten V. Snyder, 88 N. Y. 299. 5 Pease w. Phelps, 10 Conn. 62. See Eckert v. Triplett, 48 Ind. 174, to the effect that such admissions are primd fade evidence. 8 Infra, § 1210 ; Lamar v. Micon, 112 U. S. 452 ; Brooks v. Goss, 61 Me. 307 ; Church V. Howard, 79 N. Y. 415. ' Supra, § 1119. " Russell V. Doyle, 15 Me. 112 ; Washburn v. Ramsdell, 17 Vt. 299 ; Baker v. Briggs, 8 Pick. 122 ; Lewis v. Woodworth, 2 Comst. 512; Beach a. Wise, 1 Hill (N. Y.), 612; Slaymaker V. Gundaoker, 10 S. & R. 75 ; Crayton 0. Collins, 2 McCord, 457 ; Perry u. Graves, 12 Ala. 246 ; Dowty u. Sulli- van, 19 La. An. 448 ; Blancjour v. Tutt, 32 Mo. 576. See § 1163 a. 9 Howard v. Cobb, 3 Day, 309 ; Bound V. Lathrop, 4 Conn. 336 ; Painter V. Austin, 37 Penn. St. 458 ; Camp i^. Dill, 27 Ala. 553. ■» Supra, § 1163 a. " Ibid. 387 § 1200.] THE LAW OP EVIDENCE. [book III. joint inte- are admissible because he is a party, and that he is a ag^ainsthis party because his declarations are admissible. In order alleged ^^ introduce such declarations, we must first prove to the partners. , satisfaction of the court that the person making them was jointly interested in a common enterprise with the parties against whom his declarations were offered, and that his declarations were in the carrying on of this common enterprise.^ This is familiar law when partnership is sought to be proved by the admission of a putative partner ;^ and even a statement by one partner, that certain indebt- edness incurred by himself is for the firm, is inadmissible to charge the firm.^ The same doctrine has been expressed in a suit against three persons charged with having jointly made a promissory note. In such case, it is held, the joint making must be proved before the admission of one of the alleged makers can be used against the other.* But if the declarant be by any process sued alone, as sur- vivor, or if judgment has been taken by default against his associ- ates, then as against himself such declarations can be received.' 1 Supra, § 1194; Gray v. Palmers, 1 Esp. 135 ; Catt v. Howard, 3 Stark. R. 3 ; Buckingham v. Burgess, 1 McLean, 549 ; Burnhara u. Sweatt, 16 N. H. 418; Burke ,;. Miller, 7 Cush. 547; Winchester v. Whitney, 138 Mass. 549 ; Cuyler v. McCartney, 40 N. Y. 228; Kimmell v. Geeting, 2 Grant (Penn.), 125 ; Benford •,. Banner, 40 Penn. St. 9 ; Cowan v. Kinney, 33 Ohio St. 422 ; Boswell V. Blaokman, 12 Ga. 591 ; Riniel «. Hayes, 83 Mo. 200. 2 Gibbons u. Wilcox, 2 Stark. 81 ; Grant v. Jackson, Peake, 214 ; Flower V. Young, 3 Camp. 240 ; Cooper v. Smith, 4 Taunt. 802 ; Queen Caroline's case, 2 Br. & B. 302 ; Pleasants v. Fant, 22 Wallace, 116 ; Burgess v. Lane, 3 Me. (3 Greenl.) 165 ; Goooh v. Bryant, 13 Me. 386 ; Grafton Bank v. Moore, 13 N. H. 99 ; Tuttle o. Cooper, 5 Pick. 414 ; Burke v. Miller, 7 Cush. 547 ; Button V. Woodman, 9 Cush. 255 ; Bucknam V. Barnum, 15 Conn. 68 ; Whitney v. Ferris, 10 Johns. R. 66 ; Jones v. Hurl- but, 39 Barb. 403 ; Harris v. Wilson, 7 Wend. 57 ; Flanigin v. Champion, 2 N. 388 J. Eq. 51 ; Uhler v. Browning, 28 N. J. L. 79 ; Lenhart r. Allen, 32 Penn. St. 312 ; Edwards ■;. Tracy, 62 Penn. St. 378 ; Clawson v. State, 14 Ohio St. 234 ; Pierce o. McCounell, 7 Blaokf. 170; Boor V. Lowrey, 103 Ind. 468 ; Wiggins V. Leonard, 9 Iowa, 194 ; Metoalf v. Conner, Litt. (Ky.) Cas. 497 ; MoCor- kle V. Doby, 1 Strobh. 396 ; White v. Gibson, 11 Iredell L. 283; Henry v. Willard, 73 N. C. 35 ; Scott v. Dansby, 12 Ala. 714 ; Cross ;•. Langley, 50 Ala. 8; Clark ^. HufFaker, 26 Mo. 264; Berry u. Lathrop, 24 Ark. 12 ; Camp- bell V. Hastings, 29 Ark. 512. Partnership cannot be proved by report of a mercantile agency unless authorized by the partners. Cook v. State Co., 36 Ohio St. 135. 3 Elliott V. Dudley, 19 Barb. 326; White V. Gibson, 11 Ired. L. 283. * Gray v. Palmers, 1 Esp. 135. ■= Ellis C-. Watson, 2 Stark. R. 453, Abbott, C. J. After dissolution t'le power ceases. Supra, § 1196. CHAP. XIII.] ADMISSIONS BY ASSOCIATE [§ 1203. And in any view, partnership may be established by the several decla- rations and acts of the partners charged.^ It has been held that the declaration of one of two alleged part- ners, that he, the declarant, was solely liable on the debt, is admis- sible, when self-disserving, on behalf of the other alleged partner.^ It is otherwise, however, in cases in which such partner could be called as a witness.' § 1201. If one of the parties engaged in a common enterprise die, death, in dissolving the relationship, ^J^^Jj ^g^_ closes, as we have seen, the power of the survivor to missions by survivor charge, by his admissions, the estate of the deceased.* cannotbind For the same reason, the declarations of the executor or sociates the administrator of the deceased party cannot affect the "°'" '''^ r J converse. survivor.* § 1202. Supposing a case to occur in which one associate makes admissions in fraud of another, the associates thus pre- judiced have it open to them to apply the same checks, as sions in will presently be noticed, in respect to fraudulent admis- a'ssociat^es sions by a nominal plaintiff. It will be permitted to the ™ay be parties, against whom such admissions are offered, to prove their fraud and falsity." It is true that if the admissions are contractual, and if the party making them had apparent authority to make them, his associates are bound to parties bond fide acting on such admissions.^ But if the admissions are non-contractual, they can be rebutted.* § 1203. When the effect of a ' declaration, by one seif-serv- party to a joint obligation, is to throw the indebtedness ing deci^ on the other, such declaration is inadmissible, in a suit associate not admis- to fix the other.* sibie. ' Reed v. Kremer, 111 Penn. St. 482. ' Lucas y. De la Cour, 1 M. & Sel. 249 ; Starke u. Kenan, 11 Ala. 818 ; Danfortli v. Carter, 4 Iowa, 230. ' Carlyle v. Plumer, 11 Wisconsin, 96. 'Supra, §§ 1180, 1196; Story on Partnership, § 324 a; Atkins v. Tred- gold, 2 B. & C. 63 ; Fordham v. Wallis, 10 Hare, 217 ; Slaymaker v. Gundacker, 10 S. & R. 75 ; Gaunce v. Backhouse, 37 Penn. St. 350. See Boyd v. Foot, 5 Bosw. 110. And as to hinding hy tak- ing debt out of statute, see supra, § 1195. 5 Slater v. Lawson^ 1 B. & Ad. 396 ; Hathaway o. Haskell, 9 Pick. 24. 6 Taylor's Ev. § 679 ; citing Phillips V. Clagett, 11 M. & W. 84 ; Rawstone V. Gandell, 15 M. & W. 304. ' Supra, §§ 1083-4. 8 Supra, § 1088. ■' Very v. Watkins, 23 How. 469. 389 § 1205.] THE LAW OF EVIDENCE. [book III. Co-defend- ants' ad- missions not recip- rocally applicable, but other- wise when concert is proved. § 1204. A plaintiff, unless there be proof of confederacy on the part of the defendants, cannot use the admission of one defendant against the other.' It is otherwise in cases of confederacy, or in cases, as we have had occasion to see, where the declarant was the agent of the party against whom the declaration is used.^ Such statements as are part of the res gestae are of course receivable.' Hence, though the declarations of co-trespassers, when a narra- tive of past events, are inadmissible against each other, such decla- rations, during the execution of the trespass, are admissible as part of the res gestae.^ But in a suit against two or more co-defendants, admissions made by one of them cannot be excluded on motion of the others, their only remedy being to request a charge limiting the effect of the evidence.' § 1205. Wherever conspiracy is shown (which is usually induc- . , . . tivelv from circumstances"), the declarations of one Admission ,•' _ ^ of co-con- co-conspirator, in furtherance of the common design, as receivable long as the conspiracy continues, are admissible against each"other ^^^ associates, though made in the absence of the latter.' » Daniels v. Potter, M. & M. 501 ; Morse v. Royal, 12 Ves. 362. See as to imputability of admissions of grantor or assignor to grantee or assignee, when collusion is shown, supra, § 1166. 2 Lincoln v. Claflin, 7 Wall. 132; Jacobs V. Shorey, 48 N. H. 100 ; State u. Larkin, 49 N. H. 139 ; Jenne u. Jos- lyn, 41 Vt. 478 ; Bridge v. Eggleston, 14 Mass. 250 ; Wiggins v. Day, 9 Grray, 97; Com. v. Ratcliffe, 130 Mass. 30; Dart V. Walker, 3 Daly, 138 ; Scott v. Baker, 37 Penn. St. 330 ; McCahe v. Burns, 66 Penn. St. 356 ; Claytor v. Anthony, 6 Rand. 285 ; Ellis v. Demp- sey, 4 W. Va. 126 ; Snyder v. Lafram- hoise, Breese, 268 ; Miller v. Sweitzer, 22 Mich. 391 ; Raisler v. Springer, 38 Ala. 703 ; Street v. State, 43 Miss. 1 ; Harrison v. Wisdom, 7 Heisk. 99 ; Gray i;. Nations, 1 Ark. 557 ; People v. Trim, 39Cal. 75. Supra, §§ 1174, 1176. See as to criminal oases, Whart. Or. Ev. § 698. 390 » Supra, § 258. < North V. Miles, 1 Camp. 389 ; Bowsher u. Galley, 1 Camp. 391 ; R. «. Hardwick, 11 East, 585 ; Powell i.. Hodgetts, 2 C. & P. 432. See Wright V. Comb, 2 C. & P. 232 ; Daniels v. Potter, M. & M. 503. - Lewis V. Lee Co., 66 Ala. 460. 6 R. V. stone, 6 T. R. 528 ; Nudd «. Burrows, 91 U. S. 426 ; U. S. v. MoKee, 3 Dill. 546 ; Lee u. Lamprey, 43 N. H. 13 ; Dole v. Woolredge, 142 Miss. 161 ; Apthrop u. Comstock, 2 Paige, 482 ; Ormsby v. People, 53 N. Y. 472 ; Dewey V. Moyers, 72 N. Y. 70 ; Kimmell v. Geeting, 2 Grant (Penn.), 125 ; Jackson V. Summerville, 13 Penn. St. 359 ; Kel- sey V. Murphy, 26 Penn. St. 78 ; Brown u. Parkinson, 58 Penn. St. 458 ; Burns V. MeCabe, 72 Penn. St. 309 ; Confer v. McNeal, 74 Penn. St. 112 ; Chicago R. R. «. Collins, 56 111. 212 ; Philpot v. Taylor, 75 111. 309 ; Riehl v. Fourdry Ass., 104 Ind. 70 ; Kenyon v. Wood- CHAP. XIII.] ADMISSIONS BY ASSOCIATES. [§ 120^. " The leastdegree of concert or collusion between parties to an illegal transaction makes the act of one the act of all."' But the conspiracy must be first shown.' § 1206. But here, as in other previous modifications of the rule before us, we must keep in mind the underlying distinc- tion between admissions in furtherance of a conspiracy ter conspir- and admissions after its close. An admission of a co- ^'^^ " °^^ ' conspirator, in any way coincident with and explanatory of a con- spiracy during its continuance, is admissible ; a narrative, after the conspiracy, so far as concerns the subject-matter of the declaration, is terminated, is inadmissible.' Thus, where the defendant was charged with conspiring with T. and others to defraud the revenue, it was shown by the prosecution that the defendant was a landing waiter, and T. an agent for importers, at the custom-house ; it being their duty each to make entries of the contents of cases imported, so as to check the other. On thirteen occasions they made false en- tries, entering packages at less than their real bulk. T.'s check- book was oifered by the prosecution, for the purpose of showing by the counterfoil that the defendant received from him part of the money of which the government had been defrauded by their opera- ruff, 33 Mich. 310 ; Tucker v. Finoh, 66 v. Neely, 7 Watts, 307 ; and by Agnew, Wis. 17; Carskadon u. Williams, 7W. , J., in Confer v. MoNeal, 74 Penn. St. Va. 1. ; Bryoe v. Butler, 70 N. C. 585 ; 115. See, to same effect, McDowell „. Phoenix Ins. Co. u. Moog, 78 Ala. 284 ; Risell, 37 Penn. St. 164; Deakera v. Bushell V. Bank, 20 La. An. 464 ; Gun- Temple, 41 Penn. St. 234 ; MoKinley v. dry V. Lyons, 29 La. An. 4. For crimi- McGregor, 3 Whart. R. 397 ; Bredin v. nal cases see Whart. Or. Ev. § 698. Bredin, 3 Barr, 81 ; State v. Anderson, " The declarations of each defendant, 92 N. C. 747, where thetext is adopted, relating to the transaction under con- See, also, R. v. O'Connell, Arm. & T. sideration, were evidence against the 475. other, though made in the latter's ah- ' Ibid. ; Wolfe v. Pugh, 10 Ind. 294. sence, if the two were engaged at the s gee supra, §§ 171-5, 1180; R. u. time in the furtherance of a common de- Hardy, 24 How. St. Tr. 451 ;■ U. S. v. sign to defraud the plaintiffs. The White, 5 Cranch C. C. 38 ; State u. court placed their admissibility on that Pike, 51 N. H. 105 ; Benford v. Banner, ground, and instructed the jury that if 40 Penn. St. 9 ; Lynes v. State, 36 Miss, they were made after the consummation 617 ; Strady v. State, 5 Cold. 300 ; of the enterprise, they should not be Beeler v. Webb, 113 111. 436 ; Owens v. regarded." Field, J., Lincoln v. Claf- State, 16 Lea, 1 ; State u. Fredericks, lin, 7 Wall. 138, 139. 85 Mo. 145 ; Clinton v. Estes, 20 Arkan- 1 Gibson, C. J., Rogers v. Hall, 4 sas, 216. Watts, 361 ; aff. by Rogers, J., in Gibbs 391 §,1207.] THE LAW OF KVIDENCB. [book III. tions ; but this was rejected by the court, on the ground that the statement was made after the plot was consummated, and related only to the distributing of plunder.' To entitle the declarations of a co-conspirator to admission, the conspiracy must be first proved aliunde.^ VIII. ADMISSIONS BY TRUSTEES, OFFICERS, AND PRINCIPALS. Admis- sions of nominal party can- not preju- dice real party. § 1207. Where a party to a suit is a mere trustee, or one whose name is used only for purposes of form, it has been argued that the admissions of such a party are to be received at common law for what they_ are worth, when offered on trial by the opposing interest.^ But where a court of common law applies chancery remedies, the meddling of such nominal party will be prohibited,* and evidence of admissions by him may be rejected by the court, when it is in derogation of the rights of the party beneficially interested, supposing the de- clarant to have no interest in the suit ; or when it is in fraud of the rights of such beneficiary .° Under such circumstances courts have stricken off pleas in bar setting up as estoppels releases by the ' R. V. Blake, 6 Q. B. 126. To the same general eifeot see R. v. O'Connell, Arm. & T. 257 ; Solomon v. Kirkwood, 55 Mich. 256. ^ See supra, 1183 ; and see Com. v. Crowninshield, 10 Pick. 497 ; Com. v. Ingraham, 7 Gray, 46 ; Benford v. Ban- ner, 40 Penn. St. 9 ; Helser v. McGrath, 58 Penn. St. 458 ; Clawson v. State, 14 Ohio St. 234; State v. Dauhert, 42 Mo. 239 ; Reid v. Lottery Co., 29 La. An. 388 ; Owens v. State, 16 Lea, 1. 3 Bauerman t;. Radeuius, 7 T. R. 663 ; 2 Esp. 653 ; Alner v. George, 1 Camp. 392 ; Gibson v. Winter, 5 B. & Ad. 96 ; Franklin Bank v. Cooper, 36 Me. 180 ; Beatty v. Davis, 9 Gill, 211 ; Helm V. Steele, 3 Humph. 472 ; Hogau V. Sherman, 5 Mich. 60 ; Jones v. Norris, 2 Ala. 526 ; Sally v. Gooden, 6 Ala. 78. See Lee v. R. R. L. R., 6 Ch. Ap. 527. In Moriarty v. R. R., L. R. 5 Q. B. 392 320, Blackburn, J., said, "What the plaintiff on the record has said is al- ways evidence against him, its weight being more or less. Even if the plain- tiff is merely a nominal plaintiff, a bare trustee for another, though slight in such a case, it would be admissible." As to judgments, see supra, § 767. * Welsh V. Mandeville, 1 Wheat. 233. » Butler V. Millett, 47 Me. 492 ; Sar- geant v. Sargeant, 18 Vt. 371 ; Dazey V. Mills, 10 111. 67 ; Graham v. Lock- hart, 8 Ala. 9 ; Chisholm v. Newton, 1 Ala. 371 ; Sykes v. Lewis, 17 Ala. 261 ; Thompson v. Drake, 32 Ala. 98. See Rawstone v. Gandell, 15 M. & W. 304. In Robinson v, Hutchinson, 31 Vt. 443, admissions of a party who was ex- ecutor and legatee under a will were admitted to show the testator's insan- ity. CHAP. XIII.] ADMISSIONS BY REPRESENTATIVE. [§ 1209. nominal party in fraud of the rights of the real party.* In any view, the termination of the nominal party's interest in the suit, prior to such release, deprives the release of all validity.* Even though receipts or other acknowledgments by the nominal party be admitted in evidence, it is competent for the real party to show that such acknowledgments were illusory and false, either in whole or part.' It should at the same time be remembered that the actual party may bind himself to the declarations of the nominal party by silent acquiescence or by actual authorization ;* and that admissions by an assignor, made before the assignment, the assignor being the nominal party to the suit, are receivable against the assignee." But .the statements of a trustee cannot be held to be admissions of his cestui, unless made by his authority in the performance of the trust.* § 1208. A guardian, or prochein amy, is a mere officer of the court, appointed to protect an infant's interests ; and hence it has been held, that although the name of a admissfoiis functionary of this class appears on the record, his prior "°j' '■eoeiv- admissions cannot be received to prejudice his ward's against case.' But an admission made bond fide, in order to facilitate a trial, will be received in the same way as the admission of the attorney in the cause.' Clearly an admission by a guardian in one suit cannot be used against the infant in another suit.' Nor can a parent's admissions as to general liability be received to pre- judice an infant child." § 1209. A public officer may be vested with such authority by his constituents as to bind them by the admissions he makes. ' Payne v. Rogers, 1 Dougl. 407 ; In- nell V. Newman, 4 B. & Aid. 4] 9 ; Man- ning V. Cox, 7 Moore, 617 ; Johnson v. Holdsworth, 4 Dowl. 63. ' Supra, §§ 1165-8. 3 Supra, §§ 1083, 1168 ; .Wallace v. Kelsall, 7 M. & W. 273 ; Farrar v. Hutchinson, 9 A. & E. 641. ' Carr v. Casey, 20 111. 637. = Moriarty v. K. R. L. R., 5 Q. B. 320. 6 Eitelgeorge v. Mut. House Building Assoc, 69 Mo. 52. ' 1 Dan. Ch. Pr. 169 ; Cowling v. Ely, 2 Stark. 366 ; Morgan v. Thome, 7 M. & W. 408 ; Sinclair v. Sinclair, 13 M. & W. 460 ; Eooles v. Harrison, 6 Eo. & Mar. Cas. 204 ; Mertz v. Detweiler, 8 Watts & S. 376 ; Matthews v. Owling, 54 Ala. 202. See supra, § 767 ; and see, as qualifying above, Tenney u. Evans, 14 N. H. 343. 8 Taylor's Ev. §§ 673, 700. 9 Eccleston ;.. Speke, 3 Mod. 258 ; Hawkins v. Lusoombe, 2 Swanst. 392. M Bait. City R. R. v. McDonnell, 43 Md. 534. 393 § 1211.J THE LAW OF EVIDENCE. [book hi. Public of- ficer's ad- missions may bind constitu- ent. Wherever he is authorized to contract, there his declarations, when part of the negotiation (there being no conflict- ing statute), are as admissible as would be, under the same circumstances, the admissions of a private agent.' It is necessary, however, to impose liability on the con- stituent, that these declarations should be within the ap- parent scope of the officer's authority.^ Admissions made by a public officer, after the closing of a transaction, as to its character, if against his interest, might, if he be deceased, be admitted on the ground that the self-disserving admissions of a deceased person may be received.^ But if the officer be still living, such evidence would be inadmissible, as hearsay.* He must be called as a witness, if he has relevant evidence to give." When so called, his testimony is subject to the rule which forbids the contradiction of records by parol.' § 1210. Not until a representative (e. g., guardian, executor, or trustee) fairly assumes the representative character, can his admissions be regarded as considerate or intelligent or self-disserving ; and hence such admis- sions, if made before acceptance of such office, cannot bind the constituent.' So far as such admissions are incidental to the proper arrangement of the estate they bind the estate, but otherwise not.* § 1211. So the admissions of an executor or trustee, after leaving office, cannot be used against his constitu- ents.' Admission of repre- sentative, before clothed with repre- sentative authority, does not bind con- stituent. Nor do such ad- missions after leav- ing office. 1 Supra, § 1170 ; Sharon v. Salisbury, 29 Conn. 113. 2 Mitchell c. Rockland, 41 Me. 363 ; Walker v. Dunspaugh, 20 N. Y. 170 ; Green v. North Buffalo, 56 Penn. St. 110. See Burgess v. Warehara, 7 Grray, 345. See supra, §§ 1170-5. 5 Blaokmore v. Boardman, 28 Mo. 420. Supra, § 226. < Morrell v. Dixfleld, 30 Me. 167; Brighton v. St. Albans, 77 Me. 177. » Corinna v. Exeter, 13 Me. 321. 6 See supra, § 920. ' Fenwiok v. Thornton, M. & M. 51 ; 394 Legge V. Edmonds, 25 L. J. Cli. 125 ; although we have an intimation extend- ing the liability by Tindal, C. J., in Smith V. Morgan, 7 M. & Rob. 257 ; Moore o. Butler, 48 N. H. 161. See Hanson v. Parker, 1 Wils. 257. See supra, § 766 ; aud see Waterman v. Wallace, 13 Blatoh. 128. ' See supra, § 771 ; Lobb ». Lobb, 26 Penn. St. 327 ; Magill v. Kauffmau, 4 S. & R. 314. 9 Huestou V. Hueston, 2 Ohio St. 488. Supra, § 1180. CHAP. XIII.] ADMISSIONS BY REPRESENTATIVE. [§ 1212. § 1212. When a surety is sued for the debt on -which he is surety, and when the principal's conduct is involved in the merits of the suit, then the principal's self-disservinu; admissions, Principal's , 1 J. 1 • T . admissions when part oi the res gestae, are evidence against the receivable surety ;i though it is otherwise when they were made • surety, after the transaction closed, or before it began,^ unless it should appear that the admissions were made by the principal as the surety's agent in the particular matter.^ Thus, the admissions of the principal (in cases of official or other bonds), as to the amount received by him, such admissions consisting of contemporaneous ' Perohard u. Tindall, 1 Esp. 394 Goss o. Worthington, 3 B. & B. 132 Middleton v. Melton, 10 B. & C. 317 Ingle u. CoUard, 1 Cranoh C. C. 134 Hinckley v. Davis, 6 N. H. 210 ; Bayley V. Bryant, 24 Pick. 198 ; Amherst Bank . Zanner, 40 Penn. St. 9 ; Continental Ins. Co. v. Delpeuch, 82 Penn. St. 225 ; Southern Ins. Co. o. Wilkinson, 53 Ga. 535 ; Whitesoarver V. Bonney, 9 Iowa, 480 ; Fisher u. Conway, 21 Kan. 18. As to the wife as a witness on the question of agency, see supra, § 4230 a. ' Meredith v. Footner, 11 M. & W. 202 ; White v. Holman, 12 Me. 157 ; Lunay v. Vantyne, 40 Vt. 501 ; Good- rich V. Tracy, 43 Vt. 314 ; McGregor v. Wait, 10 Gray, 72 ; Turner v. Coe, 5 Conn. 93 ; Logueti. Link, 4 E. D. Smith, 63 ; Peck v. Ward, 18 Penn. St. 506 ; Sheppard v. Starke, 3 Munf. 29 ; Hunt V. Straw, 33 Mich. 85 ; May v. Little, 3 Ired. L. 27 ; Hussey v. Elrod, 2 Ala. 339 ; Jordan v. Hubbard, 26 Ala. 433 ; Queener v. Morrow, 1 Coldw. 123 ; Burnett v. Burkhead, 21 Ark. 77. 3 Meredith u. Footner, 11 M.&W. 202. ' Parsons v. Bangor, 61 Me. 457. When she is competent to act through 399 § 1220.] Her admis- sions re- ceivable against her trus- tees. After her death, her admissions against her interest bind her represen- tatives. § 1220, Admis- sions of adultery closely scruti- nized. THE LAW OF EVIDENCE. [book III. § 1218. On the principle heretofore stated, that a cestui que trust's admissions bind his trustee, a married woman's declarations, when she is eapax negotii, can be put in evidence against her trustees in suits in which they are the parties.' § 1219. In conformity with the rule already stated, as to the admissibility of the self-disserving admissions of a predecessor in title, the declarations of a wife, as to an antenuptial agreement, by which her chattels were to pass to her husband, may bind her representatives after her death.'' So far as concerns divorce cases, the policy of the law precludes the granting of a divorce on the mere admis- sions by either party of adultery when there are no corrob- orative facts, unless the admissions are in writing, and are free from all suspicion of falsity.* The House of Lords has gone so far as to absolutely exclude such evi- an attorney, she is bound by his ad- missions ; Wilson v. Spring, 64 III. 18, quoted supra, § 1184. ' See supra, § 1213. McLemore o. Nuckolls, 1 Ala. (Sel.) Cas. 591. 2 See supra, §§ 1156 et seq.; Crane V. Gough, 4 Md. 316. 3 Supra, §§ 283, 1077 ; Cloncurry's case, Macq. Pr. in H. of L. 606 ; Wash- hurn V. Washburn, 5 N. H. 195 ; White V. White, 45 N. H. 121 ; Baxters. Bax- ter, 1 Mass. 346 ; Lyon v. Lyon, 62 Barb. 138 ; Devanbagh v. Devanbagh, 5 Paige, 654 ; Madge v. Madge, 42 Hun, 552 ; Prince v. Prince, 25 N. J. Kq. 310 ; Scott V. Scott, 17 Ind. 309 ; Saw- yer I). Sawyer, Walk. (Mich.) 48 ; Hag- gard 1'. Haggard, 62 Iowa, 82 ; Savoie V. Iguogoso, 7 La. R. 281 ; Evans v. Evans, 41 Cal. 107 ; Craig v. Craig, 31 Tex. 203 ; Mathews v. Mathews, 41 Tex. 331. See 2 Bishop Marr. & Div., §§ 240, 251. In Madge v. Madge, ut supra, we have the following from Davis, J. : — " The rule in such case ia well stated 400 by Gibson, C. J., iuMatchin v. Matchin, 6 Penn. 332, in these words : ' It is a rule of policy, however, not to found a sentence of divorce on confession alone. Yet where it is full, confidential, re- luctant, free from suspicion of collusion, aud corroborated by. circumstances, it is ranked with the safest proof.' " There are a number of cases in the books in which confessions have been taken as sufficient evidence, 'where,' as said by Bishop (2 Mar. & Div., § 248), ' the circumstances are such as to repel all suspicion of collusion, and leave in the hands of the court no doubt of the truth of the confessions.' "In Billings v. Billings, 11 Pick. 461, there was no other evidence but a letter written by the husband, who had been living for fourteen years in an- other state, to his wife, which stated that he had lived with another woman, by whom he had children, but expres- sing penitence, and a desire to be re- conciled to his wife. The court held that the circumstances repelled coUu- CHAP. XIII,] ADMISSIONS OP MARRIED WOMEN. [§ 1220. dence in divorce cases ; though letters written by the wife to third parties have been admitted in evidence when it was first shown that they were written uninfluenced by fear or promise, and that the writer was then living apart from her husband.' It has been also intimated that the wife's oral confession of guilt to a third party may be received as cumulative proof.^ But by the House of Lords, also, as a general rule, all letters written by the wife after her separation, either to the husband or to the adulterer, are excluded, unless connected with some particular fact otherwise in proof,* or coming simply cumulatively.* But where a wife deserted her hus- band, who held a situation at Malta, and resided in England for sev- eral years, during which time she had resided with a paramour and had borne him four children, the lords admitted a series of letters from the wife to her husband, which were tendered as accounting for the circumstances of her not going out to rejoin him, and as showing that she had practised upon him the grossest deceit." The ecclesiastical courts applied less stringent tests. It is true that by a canon passed in 1603, a mere confession, unaccompanied by other circumstances, was insufficient, even under the most solemn sanc- tions, to support a prayer for a separation a mensa et thoro ;^ yet, where there was strong corroborative evidence, such admissions were received as basis of a decree ; and in a leading case letters from the wife to the supposed paramour, taken in conjunction with other sus- picious circumstances, were, in the absence of direct proof, consid- ered sufficient to establish her guilt, though they were intercepted before reaching the party addressed, and though their avowal of adultery was only indirect.'^ The court of divorce has gone so sion, and granted the decree on the ' Ld. Cloncurry's case, Maog. Pr. in confession of the letter alone. H. of L. 60b'. "In Tucker w. Tucker, 11 Jur. 893, ^ Lord Ellenborough's case, Ibid, the confession of the wife was confirmed 655. But see Wiseman's case, Ibid, by letters received by her from her para- 631. mour, and by declarations made by her ' Dundas's case. Ibid. 610. at a subsequent period. Dr. Lushing- « Boydell's case. Ibid. 651. ton held the proof of guilt sufficient, = Miller's case, Ibid. 620-623 ; Tay- and granted the decree. Williams v. lor's Ev. § 696. Williams, L. R. 1 P. & D. 29 ; Le Mar- ^ Mortimer v. Mortimer, 2 Hagg. chant V. Le Marchant, 45 L. J., P. & D. Const. 316 ; Taylor's Er. § 696. 43, are strong cases showing under ' Grant v. Grant, 2 Curt. 16 ; Caton what circumstances admissions or con- v. Caton, 7 Ec. & Mar. Cas. 15 ; Paus- fessions in writing may be sufficient." sett v, Faussett, 7 Ec. & Mar. Cas. 88 ; VOL. II.— 26 401 § 1220.] THE LAW OF EVIDENCE. [book III. far as to hold that a decree for the dissolution of marriage can be rested, where there is no collusion, on unsupported admissions of adultery.' But the better opinion is that the wife's admissions of adultery cannot be used against her when there is any ground to suppose they were made under the husband's influence.^ . Matchin u. Matoliin, 6 Barr, 332. See Betts V. Betts, 1 Johns. Ch. 197 ; Hans- ley V. Hansley, 10 Ired. 506. 1 Robinson v. Robinson, Sw. & Tr. 362 ; Williams v. Williams, L. R. 1 P. &D.29. See Vance K. Vance, 3 Ureenl. 132 ; Com. v. Holt, 121 Mass. 81. 2 Summevill v. Summevill, 37 N. J. Eq. 603. As to corroboration, see supra, § 225 ; State v. Colby, 51 Vt. 402 291. Mere corroboration by a woman of loose character is insufficient. Brown V. Brown, 5 Mass. 320 ; Turney v. Tur- ney, 4 Edw. Ch. 566. The evidence of a mere detective employed to make up a case is to be taken with many al- lowances. Sopwith o. Sopwith, 4 Sw. & T. 243. As to evidence of particeps criminis, see supra, § 414. CHAP. XIV,] PRESUMPTIONS. CHAPTER XIV. PRESUMPTIONS. I. General Considekations. A presumption of law is a postu- late, a presumption of fact is an argument from a fact to a fact, § 1226. Prevalent classification of pre- sumptions, § 1327. Presumptions of law unknown to classical Romans, § 1228. In Soman law praesumtiones were modes of determining burden of proof, § 1229. Such distinctions of scholastic ori- gin, § 1231. Scholastic derivation of praemnt- Hones juris et dejurej § 1232. Gradual reduction of these pre- sumptions, § 1234. In modern Eoman law they are de- nied, § 1235. In our own law they are unneces- sary, § 1236. Presumptions of law as distin- guishable from presumptions of fact, § 1237. Presumptions of fact may by stal^ ute be made presumptions of law, § 1238. Fallacy arising from ambiguity of terms "law," "legal," and "presumption," § 1239. Statutory presumptions constitu- tional, § 1239 a. II. PSTOHOI/OGICAL PRESUMPTIONS. Of knowledge of law. Such knowledge always presumed, §1240. But not of special law, § 1241. Nor of knowledge in the concrete, § 1341 a. Communis error facit jus, § 1343. Of knowledge of fact, § 1343. Of innocence, § 1344. In civil issues preponderance of proof decides, § 134.5. Of love of life, § 1347. Ofyoodfaith, § 1348. An ambiguous document is to be construed in a way consistent with good faith, § 1249. A contract is to be presumed to have been intended to have been made under a valid law, § 1350. A genuine document is presumed to be true, § 1251. Sanity is presumed until the con- trary appear, § 1252. Insanity once established is pre- sumed to continue, § 1353. To be inferred from facts, § 1354. Prudence in avoiding danger pre- sumed, § 1255. Supremacy of husband is presumed, § 1256. Wife, in housekeeping, is inferred to be husband's agent, § 1257. Of intent, § 1258. Probable consequences pre- sumed to have been in- tended, § 1358. Business transactions intended to have the ordinary effect, § 1259. A new statute presumes a change in old law, § 1360. Of malice, § 1361. Malice a presumption of fact, § 1261. Question one of logical infer- ence, § 1363. Negligence a presumption of fact, § 1363. 403 THE LAW OF EVIDENCE. [book III. Against spoliator, § 1264. Party tampering with evi- dence chargeable with eon- sequences, § 1265. So of party holding back ma- terial facts, § 1266. And so as to holding back docu- ments and witnesses, § 1267. But presumption from non- production is not substan- tive proof, § 1268. Manifestations of fear ; brib- ery, § 1269. III. Physical Presumptions. Of incompetency through infancy. Infants incapable of matri- mony, § 1270. And of crime, § 1271. How far competent in civil re- lations, § 1272. Of identity, § 1273. Presumption of, from identity of name, § 1273. Of continuance of appear- ance, § 1273 a. Of death, § 1274. From lapse of years, § 1274. Period of death to be inferred from facts ot case, § 1276. Fact of death presumed from other facts, § 1277. Letters testamentary not col- lateral proof, § 1278. Of death without issue, § 1279. Of survivorship in common catas- trophe, § 1280. If there be no proof of circum- stances of death, actor must fail, § 1281. But if any circumstances of death be proved, these are basis for induction, § 1282. Of loss of ship from lapse of time, §1283. IV. Presumption op Unipormitt and Continuance. Burden on party seeking to prove change in existing condi- tions, § 1284. Residence, § 1288. Occupancy, § 1286. Habit and appearance, § 1287. 404 Coverture, § 1288. Solvency, 1289. Value is to be inferred from cir- cumstances, § 1290. But system necessary to ad- mission of collateral value, § 1291. Iforeign law is presumed to be the same as our own, § 1292. Constancy of nature presumed, § 1293. Of physical sequences, § 1294. Of animal habits, § 1295. Of conduct of m^n in masses, § 1296. V. Presumptions op Regulabitt. Marriage presumed to be regular ; divorce, § 1297. Legitimacy as a rule presumed, § 1298. Time of parturition may be settled by experts, § 1299. Woman past fifty-five pre- sumed incapable of child- bearing, § 1300. Regularity in negotiation of paper presumed, § 1301. Regularity in judicial proceedings, § 1302. Patent defects cannot thus be supplied, § 1304. In error necessary facts will be presumed, § 1305. So in military courts, § 1306. So in keeping of record, § 1307. But jurisdiction of inferior courts is not presumed, § 1308. Legislative proceedings, § 1309. Proceedings of corporation, § 1310. So of minutes of societies, § 1311. Sates will be presumed to be cor- rect, § 1312. Formalities of document presumed, § 1313. When execution of document is primd facie shovrn, burden is on assailant, § 1314. CHAP. XIV.] PRESUMPTIONS. Officer and agent presumed to be regularly appointed, § 1315. But not special agents, § 1316. Corporations, § 1316 a. Regularity imputed to persons ex- ercising profession , § 131 7. Acts of public officer presumed to he regular, § 1318. Burden on party aesalling public officer, § 1319. Regularity of business men pre- sumed, § 1320. Non-existence of a claim inferred from non-claimer, § 1320 a. Agreement to pay inferred from reception of service, § 1331. And so from receipt of goods, § 1322. Sue delivery of letters presumed, § 1323. Delivery to be inferred from posting* § 1333. And at usual period, § 1324. Post-mark prim& facie proof, § 1335. Delivery to servant is delivery to master, § 1326. Letter sent by carrier pre- sumed to have been received, § 1327. Letters In answer to one mailed presumed to be gen- uine, § 1338. Telegi-ams, § 1329. Presumption from habits of forwarding letters, § 1330. VI. Presumptions as to Title. Presumption from possession, § 1381. As to realty, § 1333. Otherwise when possession is tortious, § 1333. Such possession must be in- dependent, § 1334. But need not be so as to whole period, § 1335. As to personalty, § 1336. As to vessels, § 1336. Mere holder of paper has this presumption, § 1337. Policy of the law favors presump- tions from lapse of time, § 1338. Soil of highway presumed to be- long to adjacent proprietor, § 1339. So of hedges and walls, § 1340. Soil under water presumed to be- long to owner of land adjacent, § 1341. So of alluvion, § 1343. Tree presumed to belong to owner of soil, § 1343. So of minerals, § 1844. Easements to be presumed from unity of grant, § 1346. Where title is substantially good, and there is long possession, missing links will be presumed, § 1347. Grants from sovereign will be so , presumed, § 1348. Grant of incorporeal hereditament presumed after twenty years, § 1349. Acquiescence must have been by owner of inheritance and with knowledge of the facts, § 1350. Such presumption may amount to an estoppel, § 1350. Acquiescence for less than twenty years may infer a grant, § 1851. Intermediate deeds and other pro- cedure may be presumed, § 1353. Instances of links of title so sup- plied, § 1353. Links of record may be thus sup- plied, § 1854. Defects of form In this way cured, § 1855. And so as to licenses, § 1356. Title to justify such presumption must be substantial, § 1357. Presumption is rebuttable, § 1358. Burden is on party assailing docu- ments thirty years old, § 1359. VII. Presumptions as to Payment. Payment presumed after twenty years, § 1360. Such presumption distinguishable from extinction by limitation, § 1361. Payment may be inferred from other facts, § 1363. From reception of money or securities, § 1363. Presumption rebuttable, § 1364. Receipts may be rebutted, § 1365. 405 § 1226.] THE LAW OF EVIDENCE. [book III. I. GENERAL CONSIDERATIONS. § 1226. A PRESUMPTION of law is a juridical postulate that a particular predicate is universally assignable to a partic- ular subject.' A presumption of fact is a logical argu- ment from a fact to a fact ; or, as the distinction is some- times put, it is an argument which infers a fact otherwise doubtful, from a fact which is proved.* Hence, a pre- sumption of fact, to be valid, must rest on a fact in proof.' Presumptions, therefore, in this sense are to be regarded rather as among the effects of proof than as proof itself. Preeump- tion of law is a jurid- ical postu- late ; pre- Bumption of fact is an argumeut from fact to fact. 1 See this illustrated infra, § 1237. 2 Windsoheid's Pandekt. i. § 138. ' " No inference of fact or of law," says a learned judge of the Supreme Court of the United States, " is relia- ble drawn from premises which are uncertain. Whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved, and not themselves presumed. Stark, on Evid. p. 80, lays down the rule thus : ' In the first place, as the very foundation of indirect evidence is the establishment of one or more facts from which the inference is sought to be made, the law requires that the latter should be established by direct evi- dence, as if they were the very facts in issue.' It is upon this principle that courts are daily called upon to exclude evidence as too remote for the consid- eration of the jury. The law requires an open, visible connection between the principal and evidentiary facts and the deductions from them, and does not permit a decision to be made on remote inferences. Best on Evid. 9.^. A presumption which the jury is to make is not a circumstance in proof; and it is not, therefore, a legitimate foundation for a presumption. There is no open or visible connection between the fact out of which the first presump- tion arises and the fact sought to be 406 established by the dependent presump- tion. Douglass V. Mitchell, 35 Penn. St. 440." . . . Strong, J., U. S. k. Eoss, 92 U. S.' 284 ; S. P. Manning v. Hancock, 100 U. S. 603. In R. o. Bur- dett, 4 B. & Aid. 161, Abbott, C. J., said: "A presumption of any fact is properly an inference of that fact from other facts that are known ; it is an act of reasoning, and much of human knowledge on all subjects is derived from this source. A fact must not be inferred without premises that will warrant the inference ; but if no fact could thus be ascertained by inference in a, court of law, very few offenders could be brought to punishment." . . . See Harrisburg's Appeal, 107 Penn. St. 102. Hence to prove a contested issue it is not necessary to prove every fact or conclusion on which the issue depends. From every fact proved legitimate and reasonable inferences may be drawn. Parfitt V. Lawless, 2 L. R. P. 68 ; 27 L. T. 215 ; 21 W. R. 200. Thus, where it is testified that one "will be twenty- one years old the first day of August next," a finding that at a day in the past he was a minor is justified (over- ruling Meyer v. State, 50 Ind. 18). Dolke V. State, 99 Ind. 229. That presumptions must rest on es tablished facts, see Richmond v. Aiken, CHAP. XIV.] PRESUMPTIONS: ClASSIFICATION. [§ 1228. Prevalent claeeifica- tion. § 1227. Presumptions are usually classified as follows: 1. Irrebuttable or absolute presumptions of law,^rae- sumtiones Juris et de jure ; 2. Rebuttable or provisional presumptions of law, prae- sumtiones juris ; 3. Presumptions of fact, praesumtiones hominis ; which pre- sumptions are always rebuttable, and are determinable by free logic. ^ § 1228. The classical Roman law recognized only two kinds of evidence : (1.) persons (^testes'), and (2.) things (im- strumenta). A witness called in a court of justice tionTS^' deposes to certain things from which inferences are to be |f^™°'+(, drawn ; or these things are brought into court without classical the agency of a witness, and from the things as thus produced inferences can in like manner be drawn. Thus, Paulus tells us : " Instrumentorum nomin'e ea omnia accipienda sunt, quibus causa instrui potest : et ideo tam testimonia quam personae instru- mentorum loco habentur."^ Testes are placed on the same basis with instrumenta — instrumenta including everything from which a conclusion is to be inferred. Both testes and instrumenta are to be weighed by the rules of logic, applied to the case as it comes up, 25 Vt. 324; Tanner o. Hughes, 63 Penn. St. 289 ; McAleer v. MoMurray, 58 Penn. St. 126 ; O'Gara v. Eisenlohr, 38 N. y. 296 ; People v. Hessing, 28 111. 410; Hamilton u. People, 29 Mich. 193 ; Frost v. Brown, 2 Bay S. C. 133 ; Bach V. Cohn, 3 La. An. 103 ; Penning- ton V. Yell, II Ark. 212 ; Lawhorn v. Carter, 11 Bush. 7. To the same effect is Bonnier, Traits des Preuves, ii. 387, 420. Compare remarks of Lord Cairns in Belhaven Peerage, L. R. 1 App. Cas. 278. And see Appleton, in re, 29 Ch. D. 873. "The foundation of all human knowledge must be laid in the exami- nation of particular objects and partic- ular facts ; and it is only so far as our general principles are resolvable into these primary elements that they possess either truth or utility." Dugald Stewart on the Human Mind, oh. iv. § 157. "As proof of a fact the law permits inferences from other facts proved, but does not allow presumptions of fact from presumptions. A fact being es- tablished, other facts may be and often are ascertained by just inferences. Not so with a mere presumption of a fact. No presumption can safely be drawn from a presumption ; there being no fixed or ascertained fact from which an inference of fact might be drawn, none is drawn." Thompson, J., Douglass V. Mitchell, 35 Penn. St. 443; aff. in Phil. City Pass. Co. v. Henrice, 92 Pa. St. 431. 1 See, as to last form of presumption, Mead v. Parker, 115 Mass. 413 ; Ham- ilton V. People, 29 Mich. 193. 2 L. i. D. xxii. 4. 407 § 1229.] THE LAW OF EVIDENCE. [BOOK III. and not by those of technical jurisprudence, announced before the case is heard. In the whole of the Corpus Juris we meet with no such expression as praesumtio Juris. The idea that it is for the court to say that certain conclusions are to be uniformly inferred from certain facts, never entered into the classical mind. Presump- tions, indeed, are discussed at lafge in the Digest, and to them a distinct chapter is in part devoted.' But the presumptions there noticed deal, not with the effect of evidence, but the mode of deter- mining the burden of proof. § 1229. The Roman rule with regard to the burden of proof has been already set forth. As a general proposition, as law prae- we have seen," the actor is required to prove the case mm tones ^^ advances ; yet there are obvious qualifications to this were modes of pujg ^hich it was the business of the iurist to define. determin- _ •> fag burden An actor, for instance, cannot be required to prove a negative when the matter is wholly within the knowledge of his opponent.' So it is often a matter of doubt whether a par- ticular fact is technically part of the actor's case or the excipient's ; and this doubt the law must determine. In proceedings in rem, to take another illustration, each party is an actor ; and the law has to settle in advance which party has to begin and how much each party has to prove, in order to make out a primd facie case. Questions of this kind, relating exclusively to the burden of proof, have to be settled by positive rules ; and the positive rules the jurists announce for this purpose, in answer to questions put to them, they call praesumtiones. Praesumtiones, therefore, in the classical sense, denote rules for determining the burden of proof before its recep- tion, but not for determining what is to be the weight of proof when received.* Nothing prevents the judge, if required by his convictions to do so, from deciding in concreto, against the prae- sumtio that a short time before was so important to him in deter- mining the burden of proof. Not merely evidence, in its strict sense, but argument, as a logical process, is available to lead him to such conclusions. Every case, when the evidence is in, is to be determined by a preponderance of proof. As making up proof, 1 Tit. xxu.3,Deprobatiombusetprae- * Endemann's Beweislehre, § 24, p. sumtionibus. 86,— a work which I have freely used « Supra, § 357. in the preparation of this chapter, s Supra, § 367. See L. 25, D. xxii. Gell. Noct. art. iii. c. 16. 408 CHAP. XIV.] PRESUMPTIONS : CLASSIFICATION. [^1231. reason and evidence are indeed regarded as coordinate factors,' and reason is to be largely influenced by what we call presumptions of fact. But of arbitrary presumptions of law, assigning to evidence ■when admitted, an unreasonable and untruthful meaning, the jurists give no instance.'' The only contingency in which, on a primd fade case for the actor being made out, the classical praesumtiones (i. e., rules for determining the burden of proof) influence the issue, is where the evidence is in equilibrium, in which case judgment is against the actor? § 1230. Hence, by the classical Roman law, what we now call presumptions were at the highest only assumptions of practical reason. The power of inference was to be caiipre- logically exercised in each case in the concrete.* The of fects'"^ question of the force of such presumptions, as we would ^"^ ^^" call them, was exclusively for the logician ; and though logical in- they are noticed frequently by the jurists, they are styled, not praesumtiones, but signa, argumenta, or exempla? § 1231. Such was the classical Roman doctrine. The Middle Ages inaugurated a new era. Business, in the old sense, p , . was extinct ; and courts no longer met to hear arguments ciassifl- , ,. . P ■ . , cation of on the application of principles to a concrete case, scholastic . Wrong, indeed, existed in abundance ; but it was not put °"S>°- on trial by a competent court. Unsuccessful wrong, or what ap- peared to be such, was punished by fine or by killing, without the trouble of what we would now call a trial ; successful wrong was not punished at all. Of course, among the active minds who, in the seclusion of the cloister, speculated on everything, there were some who speculated on jurisprudence ; but the jurisprudence they dealt with was based on an imaginary, and not on an actual humanity. They made ideas realities, and they made men unrealities.* Not 1 Supra, §§ 1-6 ; and see particularly (Trait6 des Preuves, ii. 418) throws sxipra, § 278. overboard the scholastic terms in a 2 Eudemann, ut supra, § 24, p. 87. hody, styling them " ces expressions Sir J. Stephen (Ev. p. 2) defines a barbares." " presumption" " as a rule of law that ^ See fully supra, § 4S7. courts and judges (juries?) shall draw * See Durant, I. t. nr. 19; Ende- a particular inference from a particu- mann, Beweislehre, § 19. lar fact, or from particular evidence, ' See Quinct. V. o. 8. unless and until the truth of such in- ^ See the topic in the text expanded ference is disproved." This excludes in an article in the Forum, 1875, pp. presumptions juris et de jure. Bonnier 201 et seq. 409 § 1231.J TEE LAW OF EVIDENCE. [book III. recollecting that it is impossible to predict even what any one person •will do under particular circumstances, they attempted to establish rules which would be applicable only if all men who should after- wards exist should do what was predicted. Certain maxims they conceived to be right, or to fit in with some preconceived system of ethics, and these maxims they declared to be either prima facie or absolutely true, even in concrete cases, where such maxims were primd facie or absolutely false. And in place of the real man as he might happen to appear on trial, they set up an ideal man, who was to be always presumed, no matter what be the evidence, to have specific unvarying attributes.* In like manner, to every act 1 See infra, § 1262. It was here that the realistic phi- losophy came into play, and exercised an influence which it is important to particularly examine. Have general ideas a real existence ? When we speak of man, is there such a real thing as a generic man, with no such differentiae as distinguish one in- dividual man from another ? When we speak of an abstract homicide, is there such a real thing as such a hom- icide, which is marked by none of the differentiae which distinguish one par- ticular homicide from another ? The foreshadowing of the mediseval spec- ulations on this point we find in a passage in Porphyry's Introduction to the Categories of Aristotle : " Mox de generibus et speciebus illud quidem sive subsistant sive in solis nudiis in- tellectibus positasint, sive subsistentia corporalia sint an incorporalia et utrum separata a sensilibus an insen- silibus posita et circa haec consistentia, dioere recusabo : altissimum enim est negotium hujusmodi et majoris indi- gens inquisitionis." Herzog's Ency. 13, 668. The question is here, there- fore, thrown out, whether general ideas have a reality independent of their subjective existence, or whether they are exclusively the fictions of the subjective consciousness. By Boethius 410 the discussion of this question was in- troduced in the spheres both of the- ology and jurisprudence. See Cou- sin's observations in his Ouvrages in- «dits d'Abelard, Par. 1836 ; Kohler, in his Realismus, &c., Gotha, 1858 ; and Mill's Logic, ii. 441. Three so- lutions were proposed : universalia were either ante rem, or in re, or post rem. By the first theory, the general con- ception really exists before the partic- ular ; has its own real attributes, and is the only absolute existence, the par- ticulars emanating from it being con- ditioned, limited, and imperfect. By the second view the general exists only in actual concrete existences, as some- thing that is common and essential to them ; yet it (the general) is not a pure subjective creation of conscious- ness, but is inherent necessarily in the particulars. By the third view (the distinctively uominalistic), the general has no objective reality: that is to say, it corresponds to nothing in the particular things themselves, but it exists only through the induction of the understanding, which, comparing the particulars, draws from them cer- tain general characteristics, which, in a particular aspect, they hold in com- mon. The realistic theory took immedi- ate hold of the jurists of the Middle CHAP. XIV.] PRESUMPTIONS : CLASSIFICATION. [§ 1232. which might be the object of litigation they declared certain inci- dents to belong arbitrarily. Every man was presumed to act from the motive which the law attached beforehand to the act. § 1232. The term praesumtio Juris et de jure, which was intro- duced by the glossators of the twelfth and thirteenth . . . „ . , , . Scholastic centuries, was originally intended to express an intense derivation presumption : praesumtio juris imperativi or superlativi} lumtimes Much difficulty had been felt in finding suitable limits •?»"« «* * •' ^ ^ ~ _ jure, for such "superlative" presumptions; "disputant doc- tores sed non convenit inter eos, quid nomine praesumtionis juris et de jure veniat ; est enim illud a doctoribus confictum, veluti barba- rum, certam significationem non habet."" At last it was concluded to get rid of all doubt as to their force by making them irrebuttable ; and it was announced that presumptions juris et de jure were pre- sumptions which did not admit of juridical disproof. Finally, all irrebuttable presumptions became presumptions juris et de jure, and all presumptions juris et de jure became irrebuttable. Hence it necessarily resulted that not only fictions were regarded as iden- tical with presumptions juris et dejure, but all indisputable propo- sitions were admitted into the same category ; and therefore con- Ages, and this for several reasons. The markaUe that Lord Coke's classifioa- jurists were mostly ecclesiastics, and tion of presumptions was taken from dogmatic ecolesiasticism then accepted the canon lawyers, whose authority in realism as a divine verity. The ju- other respects he so vehemently de- rists had no concrete cases to decide, nounced. And it is still more remark- for their opinion was not then asked able that the realistic hypothesis, de- hy the rude courts who disposed of rived from theology and metaphysics, property and life. The jurists also, should linger even to the present day in penal inquiries, held the canon law in our courts Of law. We are still con- to he authoritative ; and the canon stantly told of an " abstract killing," law, for the purposes of the confes- to which certain invariable accidents sional, constructed an elaborate theory are necessarily attached ; and we are of presumptive proof based upon real- informed that whenever an abstract ism. The sacerdotal judgment had killing is proved, then these accidents to be guided so as to determine rightly (one of which is malice) are to be as- all the probable cases that might arise, signed to it as praesumtiones juris. See Hence, books of casuistry were pub- article in Forum for 1875, p. 201, from lished, in which all the current forms which the above is reduced. of guilt were generalized ; specific i Globig, Theorie der Wahrschein- qualities assigned to each ; and the lichkeit, ii. 56. announcement made that, for certain " Cocceius, Diss, de prob. dir. neg. general overt acts, certain motives were § 17, cited by Burckhard, 370. to be imperatively presumed. It is re- 411 § 1234.J THE LAW OF EVIDENCE. [BOOK III. elusions which rested on supposed invariable natural laws were thus classified. It is a praeswmtio juris et de jure that information known only at London this morning cannot be known at Rome this after- noon. It is a praeaumtio juris et de jure that a man who was at London seven days ago cannot to-day be at Rome. And then, as a reasonable being intends what he does, it is a praesumtio juris, if not de jure, that before a case is tried, the intent, even when intent is in litigation, is to be assumed. § 1233. Such are the speculations of the scholastic civilians from whom the conclusions of our own text-writers have been mainly de- rived. It is remarkable, for instance, that the commentators on the Roman law on whom Mr. Best relies are Alciat (1492-1550), Henoch (1532-1609), Mascardus (1550-1600), Matthaeus (1601- 1654), and Huber (1636-1694), all of them exponents of the scho- lastic jurisprudence, adopting more or less fully its tendency to absorb in jurisprudence all other sciences, and to merge the regula- tive element in the speculative ; all of them, so far as concerns the distinction between praesumtiones juris and praesumtiones juris et (^e ji'ttre, following the Italian glossarists,by whom this distinction was created, and thus abandoning the Roman standards which re- stricted the term praesumtio to such postulates as the law estab- lishes for the purpose of relieving a party from the burden of a particular proof. § 1234. The assignment of irrebuttability to presumptions, how- Graduaire- ^^^'"j '^ ^^ repugnant to the practical jurisprudence of duction of business life, as it is to the philosophical iurisprudence of praesnmti- -r% ,■ t • ■ ■, i. , ones juris Rome, practical jurisprudence soon discovers that a e ejure. presumption that is irrebuttable in an age of ignorance is rebuttable in an age of civilization.' That a man cannot be, in the same week, in Rome and in London, was an irrebuttable pre- sumption in the twelfth century ; it is no presumption at all in the nineteenth. That information cannot be passed instantaneously from one business centre to another was, in the twelfth century, irrebuttably presumed ; in the nineteenth century most of our busi- ness contracts are affected by information so received. That an appropriate intent is assignable to an ideal man doing an ideal act may be speculatively true ; that such an intent is to be assumed in • See Mill's Logic, i. 389. 412 CHAP. XIV.] presumptions: classification. [§1235. advance of a trial cannot be practically accepted by courts having to do with real men, put on trial for acts, many of which are with- out motive (e. g., in issues of negligence), and many of which are done suddenly, in heedlessness, in passion, in self-defence, or through necessity. Hence it is that the old presumptions juris et de jure are gradually disappearing. This, indeed, is admitted by Mr. Best,^ when he tells us that certain presumptions, which in earlier times were deemed absolute and irrebuttable, have, by the opinion of later judges, acting on more enlarged experience, either been ranged among praesumtiones juris tantum, or considered as pre- sumptions of facts to be made at the discretion of a jury.^ The con- sequence is that our courts, even while holding to the old phrase- ology, are so far contracting the range of presumptions juris et de jure that while the class is still said to exist, no perfect individuals of the class can be found. The unimpeachability of records is one of the last survivors of these presumptions, and the unimpeachability of records is still spoken of as a presumption juris et de jure ; but whatever may be the name given to this presumption, it vanishes when it is confronted by proof of fraud or coercion.^ § 1235. While in our own law praesumtiones juris et de jure preserve an existence which is now merely titular, in the modern Roman law, as taught by its most authoritative Rj,™anlaw commentators, even this titular recognition is refused, distinction m ■ 7 • • • 1 1 1 '^ denied. The scholastic praesumtiones juris et de jure, it is held by the best French and German commentators on this particular topic,* are resolvable into the following classes : — 1. Conclusions from natural laws, the disproval of which is im- possible. 2. Processual rules, enacted to facilitate litigation that in the long run is just, or to check litigation that in the long run is vexatious. 8. Fictions, which, though false, are assumed by the policy of the law. ' Best Ev. § 307. ' See Endemann's Beweislehre, 85- 2 He cites to this Ph. & Am. Er. 460 ; 94 ; Burckhard, Civilistische Praesum- 1 Ph. Et. 10th ed. tiouen, 369 et seq.; 11 Vierteljahr- s See striking illustrations of this In schrift fur Ges&tzgebung, 601 ; Bon- Windsor V. McVeigh, 93 U. S. 274, and nier, TraitS des Preuves, ii. 387-414 other oases cited supra, §§ 795-7. et seq. 413 § 1237.] THE LAW OF EVIDENCE. [BOOK III. 4. Statutory presumptions, such as those introduced, by way of limitation, to quiet titles, or (as in the case of the statute of frauds) to exclude inferior and unreliable proof.^ § 1236. The modification just noticed, of the old classification of presumptions, avoids what is evil in that classification, own'iaw ^^^ retains what is good. By getting rid of the term unneces- irrebuttable presumptions we not only remove a series ^^^^' of presumptions, really rebuttable, from a category to which they do not belong, but we relieve the practical administra- tion of justice from the embarrassments which are produced from judges applying, in their charges to juries, the term irrebuttable to presumptions which are open to disproof. On the other hand, we retain, restoring them to their proper place, those leading axioms of law (e. g., the postulates that all persons are cognizant of the law to which they are subject, and that all sane persons are responsible for their acts) which were once called presumptions de Juris et de Jure, but which are really among the necessary principles from which jurisprudence starts. § 1237. Dropping, therefore, the term praesumtiones Juris et de Jure, as unnecessary if not unphilosophical, we proceed to discuss, as the subject of the present chapter, presumptions of law, in their general sense, and presumptions of fact. Our first duty will be to inquire in what these presumptions differ. And on examination, the points of difference will be found to be as follows : — 1. A presumption of law derives its force irom Jurisprudence as distinguished from logic. A statute, for instance, may Pre8ump- gay, that a person not heard of for ten years is to be law distin- counted as dead. This is a presumption of law, and is from pre- arbitrarily to be applied to all cases where parties have of fect.°°° been absent for such period without being heard from. If there be no such statute, then logic, acting inductively, will have to establish a rule to be drawn from all the circumstances of a particular case. Or a statute may prescribe that all persons wearing concealed weapons are to be presumed to wear them with an evil intent. This would be a presumption of law, with" which logic would have nothing to do.^ On the other hand, whether a 1 See this point discussed supra, §§ * See § 1239 a. 851-53. 414 CHAP. XIV.] PRESUMPTIONS : CLASSIFICATION. [§ 1237. particular person, who carries a concealed weapon, there being no statute, does so with an evil intent, is a question of logic (i. e., probable reasoning, acting on all the circumstances of the case), with which technical jurisprudence has no concern. It is not neces- sary, however, to a presumption of law, that it should be established by statute, in our popular sense of that term. Statute, in its broad sense, includes juridical maxims established by the courts as well as juridical maxims established by the legislature. To make, however, a maxim established by the courts in this sense a statute, it must be not only definitely promulgated by judicial authority, but finally accepted ; such maxims being, to adopt Blackstone's metaphor, stat- utes worn out by time, the maxim remaining, though the formal part of the statute has disappeared. The chief maxims of this kind are the presumption of innocence, the presumption of knowledge of law, and the presumption of sanity. Presumptions of law, therefore, are uniform and constant rules, applicable only generically. Presump- tions of fact, on the other hand, are conclusions drawn by free logic, applicable only specifically.' 2. To a presumption of law probability is not necessary ; but probability is necessary to a presumption of fact. Knowledge of law is in all cases presumed, though in no case it perfectly exists, and in multitudes of cases does not exist at all in the concrete. So we can conceive of cases in which it is highly improbable that an accused person is innocent of the crime with which he is charged ; yet probable or improbable as guilt may antecedently appear, he is presumed to be innocent until he is proved to be guilty. On the other hand, without probability, there can be no presumption of fact. A man is not presumed to have intended an act, for instance, unless it is probable, upon all the facts of the case, he intended it. 3. Presumptions of law relieve either provisionally or absolutely the party invoking them from producing evidence ; presumptions of fact require the production of evidence as a preliminary. The pre- sumption of innocence, for instance, makes it provisionally unneces. sary for me to adduce evidence of my innocence. On the other hand, until I am proved to have done a thing, there can be no pre- sumption against me of intent. Evidence, therefore, which is the 1 See Hamilton v. People, 29 Mich.. 193. 415 § 1238.] THE LAW OF EVIDENCE. [BOOK III. necessary antecedent to presumptions of fact, ia attached to presump- tions of law only as a consequent. Until the evidence is adduced there can be no presumption of fact ; there is no presumption of law that is not applicable before the evidence is adduced. 4. The conditions to which are attached presumptions of law are fixed and uniform ; those which give rise to presumptions of fact are inconstant and fluctuating. For instance : all persons charged with crime are presumed to be innocent. Here the condition is fixed and uniform ; it involves but a single, incomplex, unvarying feature, charged with crime ; it is true as to all persons embraced in the category. On the other hand, the presumption of fact, that doing presumes intending, varies with each particular case, and there are no two cases which present the same features. Persons charged with crime may be sane or insane ; may be adults or infants ; may be at liberty or under coercion : in each case, so far as concerns the presumption of law, they are persons charged with crime, and the presumption applies equally to each. But whether a person doing an act is sane or insane ; is an adult or an infant ; is at liberty or under coercion ; is essential in determining intent. Presumptions of fact, in other words, relate to unique conditions, peculiar to each case, incapable of exact reproduction in other cases; and a presump- tion of fact applicable to one case, therefore, is inapplicable, in the same force and intensity, to any other case. But a presumption of law relates to whole categories of cases, to each one of which it is uniformly and equally applicable, in anticipation of the facts de- veloped on trial. Thus, for instance, all children born in wedlock are presumed by law to be legitimate until the contrary be proved ; and this presumption applies to all children so born, no matter who they may be. On the other hand, whether a bastard is born of a particular father, is determinable usually by presumptions of fact attachable to conditions as to which no two cases present precisely the same type. § 1238. It must be kept in mind, at the same time, as we have PreBump- already incidentally seen, that the law-making power fict m°ay ""^^ ^'^•^^cb- *" ^^y particular fact or chain of facts certain be by stat- legal consequences, and in this way turn a presumption presump- of fact into a presumption of law. Of presumptions {^■^f ° either established or destroyed by statute, our own legis- 416 CHAP. XIV.] PRESUMPTIONS : CLASSIFICATION. [§ 1239. lation gives numerous instances.* The presumption of death de- rived from absence has been introduced into the codes of most of our states. The presumption of fact, by which a debt, unrecog- nized for a series of years, is supposed to have been paid, is made a rule of law by our statutes of limitation. In most of our states we have declared by statute that the presumption of guilt arising from silence when accused shall not extend to cases where a defen- dant declines to testify in his own behalf. In all our states we have statutes limiting the effect of parol proof.^ § 1239. The difficulties we have just noticed are largely owing, the reader must have already noticed, to the ambiguity of fallacy the terms employed. The ambiguitv in the term " pre- ^"^'"g r •' o « r from am- sumption" is thus noticed by Mr. Mill :^ " To be ac- wguity of quainted with the guilty is a presumption of guilt ; this " law," man is so acquainted, therefore we may presume that he ana^" pre- is guilty ; this argument proceeds on the supposition of sumption.'- an exact correspondence between presume and presumption, which does not really exist ; for ' presumption' is commonly used to ex- press a kind of slight suspicion, whereas ' to presume' amounts to absolute belief." Whether Mr. Mill is right in his definition of " presume" and " presumption" need not now be considered. It is enough for the present purpose to say that the words, even if not distinguishable in the way Mr. Mill states, go to a jury, if left without explanation, open to meanings from which conclusions dia- metrically opposite can be drawn. The term " law" may be used, in connection with presumptions, in three senses : (1) A presump- tion of law, in its technical sense, is, as we have seen, a presump- tion which jurisprudence itself applies, aside from the concrete case, to certain general conditions whenever they arise. (2) But a pre- sumption of law may be also a presumption of fact which jurispru- dence permits ; and it is the practice of judges to say that a pre- sumption of fact is " legal," i. e., that it is one the law will sustain. (3) " Law," as we have already seen, may be used as including the laws of nature and of philosophy, as well as those of formal 1 statutes declaring that certain cer- u. Hunt, 122 Mass. 505. And see su- tifioates, or other acts, should he primd pra, §§ 850, 1237. facie proof are constitutional. See ' As to the statute of frauds, see su- elahorate review hy C. J. Gray, Holmes pra, §§ 851-53. » Mill's Logic, ii. 442. VOL. II.— 27 417 § 1240.] THE LAW OF EVIDENCE. [BOOK III. jurisprudence. Juries are constantly told, for instance, that certain conclusions of mental or physical science are presumptions of law ; and in this way they are led to suppose that such conclusions bind, as absolute rules of jurisprudence, the particular case, no matter what may be the phases the evidence may assume. This error, which tends to subordinate justice to arbitrary form,^ can be best corrected by an analysis, in this relation, of the presumptions which come most frequently before the courts. This analysis we now undertake. § 1239 a. It is within the power of the legislature to establish statutory >'"^6s of evidence, either by excluding certain evidence presump- admissible at common law, or by admitting certain evi- tions are i i i i t i • i constitu- dence excluded at common law, or by declaring that par- '""^ ■ ticular evidence shall be primd facie or absolute proof. Under the first head falls evidence excluded by the statute of frauds and by stamp acts. Under the second head may be classed, in addition to the cases mentioned in the last section, statutes providing that certain official copies shall have the same effect as originals ; that matters not denied by affidavit shall be regarded as admitted ; that the records of certain courts shall have certain pro- bative effect ; that absence for a certain time shall be regarded as a presumption of death ; that recognition and cohabitation should he primd facie proof of matrimony.^ 11. PSYCHOLOGICAL PRESUMPTIONS. § 1240. "Psychological facts," says Mr. Best,* "are those which have their seat in an inanimate being by virtue of the qualities by which it is animate ; .... as, for instance, the sensations or re- collections of which he (an intelligent agent) is conscious, his intel- lectual assent to any proposition, the desires or passions by which he is agitated, his animus or intention in doing particular acts, etc. Psychological facts are obviously incapable of direct proof by the testimony of witnesses ; their existence can only be ascertained either by confession of the party whose mind is their seat, index animo sermo, — or by presumptive inference from physical ones." Among psychological presumptions may be enumerated the fol- lowing : — ■ See supra, § 852. statutory discrimination of evidence, 2 See supra, § 852. As to criminal see supra, § 69. law, see Wh. Cr. Ev. § 716 a. As to ■■■ Evidence, § 12. 418 CHAP. XIV.] PRESUMPTIONS: KNOWLEDGE OF LAW. [§ 1240. All persons subject to a law are irrebuttably presumed to know what it is ;' though this, as we have seen, is an axiom j^^^ of law rather than a presumption.* That the axiom sumed to , . , 1 -kT • • -i- T ^^ known contains an untruth is conceded. JNo man, in a civihzed by all sub- community, knows the law either intensively or exten- ■'*° ^" sively ; there is no thinker, no matter how profound, who has not left some depths unfathomed ; no reader, no matter how omnivo- rous, who has not left some details untouched. To predicate that of the ignorant which cannot be predicated of the learned specialist is absurd ;^ but predicated it is both of ignorant and learned, so far 1 1 Hale, 42 ; E.. v. Price, 3 P. & D. 421 ; S. C. 11 Ad. & E. 727 ; Middle- ton V. Croft, Str. 1056; Stewart c. Stewart, 6 CI. & F. 966 ; Kelley v. So- lari, 9 M. & W. 54 ; Rogers v. Ingham, L. R. 3 Ch. D. 351 ; R. u. Esop, 7 C. & P. 456; R. V. Good, 1 C. & K. 185; Stokes 0. Salomons, 9 Hare, 79 ; R. v. Hoatson, 2 C. & K. 777 ; R. •>. Bailey, R. & R. 1 ; Stockdale v. Hansard, 9 A. 6 E. 131 ; R. V. Coote, 4 L. R. P. 0. 599 ; 9 Moore, P. C. C. N. S. 463, cited supra, § 535 ; Barronet's case, 1 E. & B. 1 ; Pearce & D. 51 ; Hunt v. Rous- manier, 8 Wheat. 174 ; Morgan v. U. S., 113 U. S. 477; 0. S. v. Learned, 11 Int. Rev. Rep. 149 ; The Ann, 1 Gallis. 62 ; U. S. V. Anthony, 11 Blatoh. 200 ; Cambioso v. Maffett, 2 Wash. C. C. 98 ; Freeman v. Curtis, 51 Me. 140 ; Pink- ham V. Gear, 3 N. H. 163 ; Com. u. Bagley, 7 Pick. 279; Wheaton v. Wheaton, 9 Conn. 96 ; Shotwell v. Mur- ray, 1 .Johns. Ch. 512 ; Champlin u. Layton, 18 Wend. 407 ; Clarke v. Batcher, 9 Cord. 674 ; Hampton v. Nicholson, 8 C. E. Green, 427 ; Menges V. Oyster, 4 W. & S. 20 ; Good v. Herr, 7 W. & S. 353 ; Carpenter v. Jones, 44 Md. 625 ; Goltra v. Sanasank, 53 111. 456; Winehart v. State, 6 Ind. 30; Black V. Ward, 27 Mich. 191 ; Whitton V. State, 37 Miss. 379. As a very strong case in which this presumption was applied may be noticed Muir v. Glasgow Bank, cited infra, § 1249. 2 Supra, § 1236. ' " Besides," objects Mr. Livingston, in his report on the Louisiana Penal Code, "is it not a mockery to refer me to the common law of England ? Where am I to find it ? Who is to interpret it for me ? If I should apply to a lawyer for the book that contained it, he would smile at my ignorance, and, pointing to about five hundred volumes on his shelves, would tell me those contained a small part of it ; that the rest was either unwritten, or might be found in books that were in London or New York, or that it was shut up in the breasts of the j udges at Westminster Hall. If I should ask him to examine his books and give me the information which the law itself ought to have afforded, he would hint that he lived by his profession, and that the knowledge he had acquired by hard study for many years could not be gratuitously imparted. Your law, therefore, I repeat, is absurd in its consequences if taken literally, and mocks us by a reference to an inac- cessible source for an explanation of its obscurities." See, also, Martindale v. Falkner, 2 C. B. R. 720, Maule, J. ; R. v. Mayer, L. R. 3 Q. B. 629 ; Cutter v. State, 36 N. J. L. 125. Supra, § 1029. 419 § 1241.J THE LAW OF EVIDENCE. [BOOK III. as to establish the conclusion that no one is allowed to set up igno- rance of law as an excuse for wrong. For this several reasons are given. Mr. Austin inclines to think that the law refuses to recog- nize ignorance of the law as a defence because the law has no tests by which ignorance of law can be measured. Who can tell whether, in any given case, such ignorance exists ? Who can tell whether such ignorance is inevitable ?' Pascal argues that society would be destroyed if such an excuse were held good. Discussing the alleged Jesuit dogma that ignorance relieves from responsibility, he says, with fine satire, that till he heard this, he had supposed that the most depraved were the most culpable, but that now he finds that the more stolid the brutishness, or the more reckless the levity of the criminal, the more blameless he becomes ; and to illus- trate his criticism he appeals to Aristotle's observation, that " All wicked men are ignorant of what they ought to do, and what they ought to avoid ; and it is this very ignorance which makes them wicked and vicious."^ To this it may be added, that government would come to a stand-still if this principle were not enforced. Few people would read tax laws, few would read municipal ordinances, if ignorance in the first case would excuse paying taxes ; in the second case, would excuse obedience to police regulations ; and the more reckless crime becomes, the more sullen and resolute would be the ignorance it would cultivate. The presumption, however, does not apply to foreign law.' Hence there is no presumption that a non-resident knows the laws or public acts or records of a State, and where it is necessary to charge him with knowledge, the fact of knowledge must be proved.* But, as will be hereafter seen, foreign law is presumed to be the same as domestic, except as to peculiar idiosyncrasies of the latter." § 1241. It must be remembered at the same time, that the know- ledge of law which is here assumed is simply practical ledge by''' knowledge commensurate with the duties whose non-dis- non-spe- charge the law, in the concrete case, condemns. A sane ciahst of '^ ' . _ ' special law person who commits a public wrong, for instance, is bound 1 Austin's Lectures, 2d ed. i. 498. ^ Supra, § 300 ; Norton v. Marden, This is adopted by Hunt, J., in Upton 15 Me. 48 ; Haven v. Foster, 9 Pick. V. Tribiloook, 91 U. S. 45. See South 112 ; King v. Doolittl«, 1 Head, 77. Ottawa V. Perkins, cited supra, § 289. * Stedman v. Davis, 93 N. Y. 32. ' Pascal, 4th Prov. Letter. » Infra, § 1292. 420 CHAP. XIV.] PRESUMPTIONS: KKOWLBDaB OP LAW. [§1241. to know that the wrong is subject to penal consequences : i°* >■«- if it is malum in se, his natural consciousness points to this, and it would be fatal to government to allow want of such natural consciousness to be a defence ; if it is malum prohibitum, it should be known by him, for it is his duty, when he undertakes to abide in a community, to know what it prohibits, since otherwise no police laws could be enforced. But, when questions of construc- tion of documents come up, then, as we will hereafter see more fully, a party cannot be always held liable civilly for adopting a probable construction which the courts may ultimately hold to be erroneous.' There are also different grades of requisite knowledge proportionate to the duties assumed. Thus, a person not claiming to be a legal specialist is liable, when the question comes up in a civil issue, only for a lack of that knowledge of law common to non-specialists of his class.^ Thus, a person travelling on a railroad is not presumed to know all the rules of the railroad company, even though it be his duty to inform himself beforehand as to such rules.* On the other hand, a person claiming to be a specialist in the law is liable for a lack of the knowledge common to good practitioners of his school.* So a knowledge of the legal bearings of the rules of their respective associations is imputed to the members of a stock ex- change," and to the members of a club ;* and parties taking under a lease are presumed to know the title which they accept ;' and those executing instruments to know what such instruments mean.* But, whatever be the degree of knowledge of the law the law presumes the individual to have, he is presumed to have absolutely. The pre- sumption, if it is to be called such (it being, as we have noticed, more properly an axiom of jurisprudence), is irrebuttable, unless in cases of fraud. » Beauohamp v. Winn, L. R. 6 H. L. ^ Stewart v. Canty, 8 M. & W. 160 ; 223 ; Ireland u. Livingston, L. E. 5 Mitchell v. Newhall, 15 M. & W. 389. Eng. App. 395 ; Brent v. State, 43 Ala. ^ Raggett a. Musgrave, 2 C. & P. 297 ; Kostenbader v. Spotts, 80 Penn. 556. St. 430. Infra, § 1242. ' Butler v. Portarlington, 1 Conn. & 2 Whart. on Neg. §§ 414, 510, 520, L. 24. 749 ; Miller w. Proctor, 20 Ohio St. 442. « Lewis v. R. R., 5 H. & N. 867; ' Trunkey, J., Lake Shore, etc. R. Androscoggin Bk. v. Kimball, 10 Cnsh. R. V. Rosenzway, 113 Penn. St. 538. 373 ; Clem v. R. R., 9 Ind. 488. Infra, * See oases cited at large in Whart. § 1243. on Agency, §§ 596 et seq. 421 § 1241 a.] THE LAW OF EVIDENCE. [book III. § 1241 a. It is luminously shown by Savigny' that, while know- ledge of law is by the Roman law presumed as far as knowledge Concerns the general principles of law, this presumption presumed ^Qgg ^qJ; extend to the classification (subsumption) under the con- general rules of law of certain complex conditions of '"'^'^' fact. And Mr. Pollock" declares that " ignorance of law means only ignorance of a general rule of law, not ignorance of a right depending on questions of mixed law and fact, or on the true construction of a particular instrument."' And the position that knowledge will not be presumed of the legal meaning of an am- biguous document, or of the legal category into which complicated conditions of fact will be ultimately adjudged to fall, is sustained by many rulings of American courts.* 1 Rom. Reoht, III. 340. 2 Contracts, 436. 8 To this he cites Lord Westbury in Cooper V. Phibbs, L. E. 2 H. L. at p. 170, "to which the dicta in the later case of Earl Beauohamp u. Winn, L. R. 6 H. L. 223, really add little or nothing." ■• Whart. on Contracts, §§ 198, 199, and cases there cited ; Freeman v. Cur- tis, 51 Me. 140 ; May v. Coffin, 4 Mass. 346 ; Warden v. Tucker, 7 Mass. 449 Northrop v. Graves, 19 Conn. 548 Champlin u. Layton, 18 Wend. 407 Mayer o. Ebers, 38 N. Y. 305 ; Logan V. Matthews, 6 Barr, 417 ; Kostenbader < . Spotts, 80 Penn. St. 430 ; Mo- Naughton v. Partridge, 11 Ohio, 223 ; Ledyard v. Phillips, 32 Mich. 13 ; Fitz- gerald u. Peck, 4 Litt. 125 ; Under- wood I.-. Brockraan, 4 Dana, 309 ; Gratz V. Redd, 4 B. Monr. :i.78 ; Garner v. Garner, 1 Uessaus. 437 ; Lowndes . Archer, that ' it is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.' Cowper, 63, 65." Graves, C. J., Wallace v. Harris, 32 Mich. 394. See Armory v. Delamire, 1 Str. 505 ; R. V. Jarvis, Dears. C. C. 552 ; 7 Cox C. C. 53 ; Atty.-Gen. ;;. Windsor, 24 Beav. 679 ; Brown w. Turner, 13 C. B. (N. S.) 485 ; Evans v. Botterell, 3 B. & S. 787 ; Jenkin v. King, L. R. 7 Q. B. 468 ; 20 W. R. 669 : Shoenberger v. Haokman, 37 Penn. St. 87 ; Mordeoai v, Beal, 8 Porter, 529. 445 § 1267.] THE LAW OF EVIDENCE. [BOOK III. been held,' that his persistent refusal to appear in person at the trial is a suspicious circumstance, affording an inference against him, to be -weighed by the jury. " The question," said Agnew, C. J., " is not upon his right to stay away, but upon the motive which may have caused his absence. A man of ordinary intelligence must know that his failing to appear, when he had a strong mo- tive to appear, would be evidence against him. If he relies upon his ability to disprove the motive imputed, he takes the risk, but he leaves the effect of his conduct, as a matter of fevidence for the opposite side, to go to the jury, who must weigh both sides to de- termine the real motive." And in a case already noticed, where a liquor merchant sued for goods sold and delivered, and the only evidence was that some hampers of full bottles had been delivered to the defendant, but there was no evidence of the contents of the bottles, Lord Ellenborough told the jury to presume that the bottles were filled with the cheapest liquor in which the plaintiff dealt.2 § 1267. When, on the unexplained refusal of a party to produce So of hold- °^ *"*^ documents which have been called for, the op- ing back posite party introduces parol evidence of the contents of and wit- the paper,^ then, if there be doubt, the probable inter- pretation less favorable to the suppressing party will be adopted.^ But this is a matter solely of logical inference. " The mere non-production of written evidence," says Sir W. D. Evans,* " which is in the power of a party, generally operates as a strong presumption against him. I conceive that has been sometimes car- ried too far, by being allowed to supersede the necessity of- other evidence, instead of being regarded as merely matter of inference, » Brown ■>. Shook, 77 Penn. St. 471. Crisp v. Anderson, 1 Stark. 35 ; Han- s' Clunnes v. Pezze, 1 Camp. 8. son v. Eustace, 2 How. (U. S.) 663 ; On this principle, in admitting evi- Clinton v. XJ. S., 4 How. 242 ; Barber dence of a will proved to have been v. Lyon, 22 Barb. 622 ; Cross v. Bell, destroyed by the heir-at-law, the judge 34 N. H. 83 ; Life Ins. Co. v. Ins. Co., of the Irish court of probate said that 7 Wend. 31 ; Shortz v. Unangst, 3 W. he should be satisfied with evidence & S. 45 ; Crescent Ice Co. v. Erman, 36 much less cogent than in the case of a La. An. 841 ; Townei'. Milner, 31 Kan. lost will. Mahood v. Maliood, Ir. R. 8 207. See Davie v. Jones, 68 Me. 393. Eq. 359. 6 2 Ev. Pothier, 337, cited in text in a Supra, § 153. Best's Ev. 414. * Cooper V. Gibbons, 3 Camp. 363 ; 446 CHAP. XIV.] PRESUMPTIONS: HOLDING BACK PROOF, ETC. [§ 1269. in weighing the effect of evidence in its own nature applicable to the subject in dispute." The non-calling of a witness, however, will not justify an arbitrary presumption of suppression.* And where a person refused to allow his former solicitor to give evidence of matters connected with the professional relation, it was held in the House of Lords, that there was no arbitrary adverse presump- tion which could be used as proof against him.* Such presumption is not substantive proof.* It is otherwise when there is an irrecon- cilable conflict of testimony, preponderating on neither side, in which case the non-production of a person as a witness who could have so testified as to throw much light on the issue, if unaccounted for, raises a presumption against the party on whom is the burden of proof, and who might have produced the witness.* § 1268. It follows, therefore, that the presumption arising from mere non-production cannot be used to relieve the oppos- ing party from the burden of proving his case. But when tioif from a prima facie case is proved, sufficient by itself to sustain non-pro- r '' r ' J ^ ^ duction is a judgment, then an adverse party who refuses to exhibit not sub- books which would, if produced, settle the matter either proof, one way or the other, or to give other explanations, not only prejudices his case on trial,^ but precludes himself from subse- quently objecting that the case of the opposite party, though suffi- cient for judgment, did not introduce all the facts.* § 1269. Under ordinary circumstances, where there is a fair and just administration of justice, when a party accused of jjanjfggta. crime flies from trial, this affords an inference of fact, tionoffear; more or less strong, according to the circumstances of the case.' It should be at the same time remembered that there are many conditions (e. g., public excitement or political prejudice, in- 1 Scovill V. Baldwin, 27 Conn. 316 ; ^ See Ruppe v. Steinbach, 48 Mich. Cramer .;. Burlington, 49 Iowa, 213. 465. See Bleeoker v. Johnston, 69 N. J. 309. « Roe v. Harvey, 4 Burr. 2484 ; Bate 2 Wentworth v. Lloyd, 10 H. of L. v. Kinsey, 1 C, M. & R. 41 ; Sutton v. Cas. 589. Davenport, 27 L. J. C. P. 54 ; Dysart 3 Chaffee v. U. S., 18 WaU. 516. See Peerage Case, 6 App. Ca. 489. See Clifton V. U. S., 4 How. 242. Supra, supra, §§ 153 et seq. § 1067. ' Whart. Cr. Ev. § 750 ; People v. * The Fred. M. Lawrence, 15 Fed. Rathbun, 21 Wend. 509 ; Revel v. Rep. 635. And see People v. Hovey, State, 26 Ga. 275 ; State v. Williams, 92 N. Y. 554 ; Ried v. Com., 102 Penn. 54 Mo. 170. St. 408. 447 § 1271.] THE LAW OF EVIDENCE. [BOOK III. terfering with the fairness of a trial) which may make it prudent for a man, conscious of his own innocence, to secure safety hy flight.! "When such is the case, the inference cannot be logically applied. Nor is manifestation of fear admissible unless it be such as to imply a confession of a relevant fact.* But when it may be inferred to imply such a confessioH, it is admissible ; and so is the conduct of a witness supposed to be feigning an injury when appa- rently not observed.* It is admissible to prove an attempt, at a former trial, by one of the parties to a suit, to corrupt a juror by bribery.* III. PHYSICAL PRESUMPTIONS. § 1270. Boys under fourteen, and girls under twelve, are by the English common law presumed incapable of matrimonial presumed consent; and this presumption is irrebuttable.' The of matri- same limit is prescribed by the Roman law, and by the "'""y- Council of Trent.* § 1271. Children under seven are presumed irrebuttably to be incapable of crime ;^ between seven and fourteen the presumption is rebuttable by proof that the defendant is capax doli.^ A boy under fourteen is presumed incapa- ble of rape, as principal in the first degree ;' or of an assault with intent to ravish.'" 1 Golden v. State, 25 Ga. 527 ; State Jordan, 9 C. & P. 118 ; State v. Pugh, V. Phillips, 24 Mo. 475. A party can- 7 Jones N. C. L. 61 ; 1 Green Cr. Rep. not introduce evidence to explain flight 402 ; Whart. Cr. Law, § 551. until such, flight is proved against him. In England this presumption is not Welch V. State, 104 Ind. 347. afl'ected by the Act of 24 & 25 Vict. u. 2 Beale v. Perry, 72 Ala. 323. 100, §§ 48, 50 ; R. v. Groombridge, 7 C. sChamherlinji.Ossipee, 60N. H. 212. & P. 582, per Gaselee, J., and Ld. ' Hastings u. Stetson, 130 Mass. 76. Abinger ; and it applies to the offence 5 Bishop Mar. & Div. § 148; 1 Black, of carnally abusing a girl under ten Com. 436. years of age. R. v. Jordan, 9 C. & P. " Whart. Confl. of Laws, § 147. 118, per Williams, J. But if the boy ' See authorities in Whart. Cr. Law, have a mischievous discretion, he may §§ 67 et seq. ; and see also State v. be a principal in the second degree. 1 Goin, 9 Humph. 175 ; Godfrey v. State, Hale, 630. The patient may be con- 31 Ala. 323 ; R. a. Owen, 4 C. & P. victed of an unnatural crime, though 236. the agent be under fourteen. R. v. 8 Com. V. Mead, 10 Allen, 398 ; 1 Allen, 1 Den. 364 ; 2 C. & Kir. 869, Green Cr. R. 402 ; R. v. Smith, 1 Cox S. C. C. C. 260. 10 R. V. Eldershaw, 3 C. & P. 396, per 8 R. V. Phillips, 8 C. & P. 736 ; R. v. Vaughan, B. ; R. v. Phillips, 8 C. & P. 448 And so of crimes. CHAP. XIV.] presumptions: identity. [§ 1273. § 1272. As an infant under seven is not capax doU, an action for false imprisonment lies for the arrest of such an infant under charge of felony.* An infant of any age may, ^"Xetent through his guardian or proehein ami, recover damages "' p^'i ""e- for a negligent injury.^ Whether contributory negligence is' imputable to an infant has already been discussed.' Testamen- tary capacity, so far as concerns personal property, is by the common law imputed to boys of fourteen years and girls of twelve, provided they have disposing memory ;* though in many jurisdictions this capacity is further limited by statute. So far as concerns real estate, the right of absolute alienation is by common law refused to infants under twenty-one ;" and they may avoid such conveyance when of age.* It has however been held that an infant lessee, though not liable on the contract of tenancy, is liable in a suit for use and occupation." The contracts of an infant, it is scarcely necessary to add, may be ratified on his attaining majority.* \ 1273. In cases where it is proved either directly or inferen- tially that there are several persons, in the same circle of society, bearing the same name, mere identity of name, tion of by itself, is not stifiicient to establish identity of person.' fro^ name. 736, per Patteson, J. ; E. v. Groom- trustee, or exercise a power, see King bridge, 7 C. & P. 582 ; People v. Ran- v. Bellord, 1 Hem. & M. 343, and au- dolph, 2 Parker C. R. 213 ; State v. thorities there cited ; also In re Arnit's Sam, Winston, N. C. 300. Contra, Com. Trusts, 5 I. R. Eq. 352 ; Taylor, 590 ; V. Green, 2 Pick, 380. 1 Bl. Com. 465, 466 ; Co. Litt. 786. 1 Marsh v. Loader, 14 C. B. N. S. As to admissions by an infant, see 535. supra, § 1124, note. 2 Whart. on Neg. § 322. As to how far infant shareholders ' Supra, § 1255. are liable to actions for .calls, see » 1 Will, on Ex. 14-16. Newry Ennisk. Rail. Co. v. Combe, 5 See King v. Bellord, 1 Hem. & M. 5 Rail. Cas. 633 ; 3 Ex. R. 565, S. C. ; 343. Leeds & Thirsk. Rail. Co. v. Fearnley, 6 Tucker v. Moreland, 10 Pet. 59 ; 5 Rail. Cas. 644 ; 4 Ex. R. 26, S. C. ; Bool V. Mix, 17 Wend. 120 ; Stafford v. Cork & Bandon Rail. Co. v. Cazenove, Roof, 9 Cow. 626. 10 CUB. 935 ; North West R. R. u. Mo- ' Blake v. Conoannon, Ir. R. 4 C. L. Michael, 5 Ex. R. 114. 323. s Palis v. Dlneley, 3 M. & S. 477 ; As to the Imputablllty to an infant Oliver v. Houdlet, 13 Mass. 237 ; Reed of contributory negligence, see supra, v. Batchelder, 1 Met. 559 ; Gillett o, § 1255 ; Whart. on Negligence, §§ 312, Stanley, 1 Hill, 122. 322. ' See cases cited supra, § 701 ; Jones As to how far an infant can act as a v. Jones, 9 M. & W. 75 ; Mooers v. VOL. II.— 29 449 § 1273.] THE LATV OF EVIDENCE. [book III. The inference, however, rises in strength with circumstances in- dicating the improbability of there being two persons of the same name at the same place at the same time.* Names, therefore, with other circumstances, are facts from which identity can be presumed.' The inference from variation in the name, however, varies in proportion to the materiality of the variation.* Where a father and son bear the same name, the name, if used without any addition, is presumed to indicate the father.* But ordi- narily, similarity of names will sustain a verdict when no dispute of identity was raised on trial." Bunker, 29 N. H. 420 ; Kinney v. Flynn, 2 R. I. 319; Bennett u. Libhart, 27 Mich. 489 ; Ellsworth v. Moore, 5 Iowa, 486 ; Moss v. Anderson, 7 Mo. 337 ; Morrissey v. Ferry Co., 47 Mo. 521 ; Nicholas v. Lansdale, Litt. (Ky.) Sel. Ca. 21 ; McMinn u. Whelan, 27 Cal. 300 ; and see Reed v. Gage, 33 Mich. 179. ^ Supra, § 701 ; Greenshields v. Hen- derson, 9 M. & W. 75 ; Sewall v. Evans, 4 Q. B. 626 ; Murietta u. Wolf hagen, 2 C. & K. 744; Griudle v. Stone, 78 Me. 178 ; Bogue v. Bigelow, 29 Vt. 179 ; Jackson v. Goes, 13 Johns. 518 ; Jack- son V. Cody, 9 Cow. 140 ; Hatcher v. Rooheleau, 18 N. Y. 86 ; Burford v. McCue, 53 Penn. St. 427 ; Kelly v. Val- ney, 5 Penn. L. J. Rep. 300 ; Balbec V. Donaldson, 2 Grant (Penn.) 459 ; Gates (/. Loftus, 3 A. K. Marsh. 202 ; Cooper V. Poston, 1 Duvall, 92 ; Brown V. Metz, 38 111. 339 ; Graves v. Colwell, 90 111. 615 ; Heacock «. Lubukee, 108 111. 641 ; Gitt ,;. Watson, 18 Mo. 274 ; State V. Moore, 61 Mo. 276 ; State v. MoGuire, 87 Mo. 642; MoMinn v. Whelan, 27 Cal. 300; Douglass v. Dakin, 46 Cal. 49. Even an entry in a registry of bap- tism may be sufficient evidence of the identity of a child. Morrissey v. Ferry Co., 47 Mo. 521. 2 Ibid. ; State v. Bartlett, 55 Me. 200 ; Jones V. Parker, 20 N. H. 31 ; Dennis V. Brewster, 7 Gray, 351 ; Farmers' 450 Bank v. King, 57 Penn. St. 202. See Com. V. Costello, 120 Mass. 358 ; Broth- erline v. Hammond, 69 Penn. St. 128 ; Bennett v, Libhart, 27 Mich. 489; Brown o. Metz, 33 111. 339 ; Hunt u. Stewart, 7 Ala. 525. " In the absence of circumstances to cast doubt upon the fact of identity, the identity of name is enough to raise a presumption of identity of person." Graves, C. J., Goadell v. Hibbard, 32 Mich. 48. ' Burford <,. McCue, 53 Penn. St. 427 ; Bennett v. Libhart, 27 Mich. 489 ; Ellsworth V. Moore, 5 Iowa, 486. * Stebbiug v. Spicer, 8 C. B. 827 ; Jarmaine v. Hooper, 6 M. & G. 827; Stebbins v. Spicer, 8 M., G. & S. 827; Sweeting v. Fowler, 1 Stark. R. 106 ; State V. Vittnm, 9 N. H. 519 ; Kinoaid V. Howe, 10 Mass. 205. In State v. Vittum, supra, it was held that this presumption was not rebuttable. Contra, R. v. Peace, 3 B. & Aid. 579. As to presumption from indelibility of tattoo marks, see R. v. Orton, Cock- burn, C. J., Charge II. 760. As to test from similarity of hair, see Ibid. 53. 5 Brown „. Metz, 33 111. 339 ; Doug- lass V. Dakin, 46 Cal. 49 ; People v. Rolfe, 61 Cal. 540. See Nelson «. Whittal, 1 B. & A. 21 ; 22 Cent. Law J. 227. CHAP. XIV.] PKESDMPTIONS : DEATH. [§ 1274. § 1274. By the canon law, no length of absence gives a pre- sumption of law of death ; the presumption is one of fact, depending on the concrete case.' By the English com- Death pre- mon law, at the close of a continuous absence abroad^ of ter unex- seven years, during which time nothing is heard of the senee^of ^ ' absent person by those who would naturally have heard of ^®^^" him, if alive, death is presumed, as a presumption of law rebuttable by proof or counter presumptions.' This view is accepted in most jurisdictions in the United States,* and in such the burden is on the party averring continued life to prove it." But, if there is no proof of unexplained absence, the mere lapse of time, even sup- posing that it would make the party eighty years old, if living, 1 Wharton's Confl. of Laws, § 133. 2 Under the term ' ' abroad' ' has been included, in this country, absence from the state of the absentee's residence prior to disappearance. Newman v. Jenkins, 19 Pick. 515 ; Innis v. Camp- bell, 1 Eawle, 373. See Fulweiler v. Baugher, 15 S. & R. 45. Infra, § 1275. ' Stephen's Ev. ch. 14, art. 99 ; Doe V. Jesson, 6 East, 85 ; Doe v. Deakin, 4 B. & A. 43 ; Hopewell v. De Pinna, 2 Camp. 113 ; Rust v. Baker, 8 Sim. 443. That six years' absence is not enough, see Park v. Canton, 130 Mass. 505. ' Davie v. Briggs, 97 U. S. 628 ; Mof- fit V. Varden, 5 Cranch C. C. 658 ; Mont- gomery V. Bevans, 1 Sawyer, 653 ; Ste- vens V. McNamara, 36 Me. 176 ; Stinch- fleld V. Emerson, 52 Me. 465 ; Smith v. Knowlton, 11 N. H. 191 ; Winship v. Conner, 42 N. H. 341 ; Flynn v. Coffee, 12 Allen, 133 ; Loring v. Steineman, 1 Met. 204 ; Sheldon v. Ferris, 45 Barb. 124; Osborn v. Allen, 26 N. J. L. 388 ; Burr V. Sim, 4 Whart. R. 150 ; Bradley V. Bradley, 4 Whart. R. 173 ; Whiter side's Appeal, 23 Penn. St. 114; Holmes V. Johnson, 42 Penn. St. 159 ; Crawford V. Elliott, 1 Houst. 465 ; Tilly v. Tilly, 2 Bland, 436; Whiting v. NiohoU, 46 111. 230; Spurr v. Trimble, 1 A. K. Marsh. 278 ; Foulks v. Rhea, 7 Bush, 568 ; Shown v. McMakin, 9 Lea, 601 ; Cofer V. Thurmond, 1 Ga. 538 ; Adams V. Jones, 39 Ga. 479 ; Smith v. Smith, 49 Ala. 156 ; Learned v. Corley, 43 Miss. 687 ; Primm v. Stewart, 7 Tex. 178. See Bowden v. Henderson, 2 Sm. & Giff. 360, as to rebuttal by counter presumptions. As maintaining that in this country life is presumed to continue until death is proved, or until the rule of law ap- plies by which death is presumed to have occurred — that is, at the end of seven years — see opinion of Field, J., in Sensenderfer «. R. R., 19 Fed. Rep. 68. Whether a person is alive at a given date is a question for the jury, and "his existence at an antecedent pe- riod may or may not afford a reason- able inference that he was living at a subsequent date." Per Giffard, L. J., In re Phene's Trusts, L. R. 5 Ch. 150. 5 Ibid. ; Hoyt v. Newbold, 45 N. J. L. 219. And see O'Kelly v. Felker, 71 Ga. 775 ; Thomes v. Thomes, 16 Neb. 653. To the effect that the proof that the party had not been heard from must be satisfactory, see supra, § 223. 461 § 1274.] THE LAW OF EVIDENCE. [book III. is not by itself enough to prove death.' It is otherwise when the party would have reached the limits beyond which life, according to ordinary observation, is improbable,* though even when one hun- dred years is reached, the conclusion is not absolute.' With other circumstances^ (e. ^., non-claimer of rights, or exposure to peculiar sickness or other calamity, or advanced years), death at a far ear- lier period may be inferred.* The presumption before us, it should be remembered, when not governed by statute, is one of experience, varying logically with the circumstances of the particular case.* Thus, when the object ' Weale v. Lower, Pollex. 67 ; Nap- per V. Landers, Hutt. 119 ; Hall, In re, 1 Wall. Jr. 85 ; Seusenderfer v. R. B., 19 Fed. Rep. 68 ; Letts v. Brooks, Hill & Denio, Supp. (N. Y.) 36; MoCartee V. Camel, 1 Barb. (N. Y.) Ch. 455; Duke of Cumberland v. Graves, 9 Barb. 595 ; Keller v. Shiok, 4 Redf. 294 ; Mar- tinez V. Vives, 32 La. An. 395. 2 Jones V. Waller, 1 Price, 229 ; R. V. Lumley, L. R. 1 C. C. 196 ; Doe v. Michael, 17 Q. B. 276 ; Allen v. Lyons, 2 Wash. C. C. 475 ; Ackerman, in re, 2 Redf. (N. Y.) 521 ; Sprigg v. Moale, 28 Md. 497. See Montgomery v. Bev- ans, 1 Sawyer, 653 ; Manby u. Curtis, 1 Price, 225. " Beverly v. Beverly, 2 Vern. 131 ; Doe V. Andrews, 15 Q. B. 756 ; Burney V. Ball, 24 Ga. 505. Where a trust is declared by deed in favor of a named person, such per- son must, until the contrary be shown, be taken to have been in existence at the date of the deed ; and the onus of proving his death before that date is ou the representatives of the settlor. Corbishley's Trusts, in re, 14 Ch. D. 846. < See infra, § 1277. 6 R. V. Harborne, 2 A. & E. 544; S. C. 4 Nev. & Man. 344 ; Beasuey's Trusts, in re, L. R. 7 Eq. 498 ; Sellick V. Booth, 1 Y. & C. 117 ; Main, in re, 1 Sw. & Tr. 11 ; R. v. Wiltshire, 6 Q. B. . 452 D. 366 ; 14 Cox C. C. 544 ; Allen o. Lyons, 2 Wash. C. C. 475 ; White v. Mann, 26 Me. 361 ; Wentworth v. Went- worth, 71 Me. 72 ; Bowditch v. Jordan, 113 Mass. 321 ; Hyde Park v. Canton, 130 Mass. 505 ; Merritt v. Thompson, 1 Hilt (N. Y.), 550 ; Smith v. Smith, 5 N. J. Eq. 484 ; Clarke v. Canfield, 15 N. J. Eq. 119 ; Osborn v. Allen, 26 N. J. L. 388 ; Johnson v. Johnson, 114 III. 611 ; Cooper o. Cooper, 86 Ind. 75 ; Gibbes u. Vincent, 11 Rich. (S. C.) 323 ; Spears v. Burton, 31 Miss. 547 ; Hancock o. Ins. Co., 62 Mo. 26 ; Lan- caster V. Ins. Co., 62 Mo. 121 ; Ross u. Clore, 3 Dana, 189. See charge of Cookburn, C. J., in R. v. Orton, and Breadalbane case, L. R. 1 H. L. Sc. 182. In Prudential Insur. Co. v. Edmonds, L. R. 2 App. Cas. 487, the House of Lords was equally divided upon the question how far a statement of a wit- ness, to the effect that she saw the al- leged deceased (her uncle), as she be- lieved, in Melbourne, seven years after his supposed disappearance, coupled with proof that there had not been diligent inquiry for him at Melbourne, would justify a judge in telling a jury that the presumption of death was overcome. 5 Tindall, in re, 30 Beav. 151 ; Doe v. Walley, 8 B. & C. 22 ; R. o. Lumley, L. R. 1 C. C. 196 ; Lapsley o. Grierson, 1 H. of L. Cas. 498 ; Clarke v. Cummiugs, CHAP. XIV.] PRESUMPTIONS: DEATH. [§ 1275. was to prove the business entries of a person alleged to be de- ceased, the court permitted such entries to be read on the bare proof that they were fifty-four years old.' regulated Where feoffments, also, for terms varying from ninety- nulstton** liine to eighty years have been made to particular tenants, one of ex- the practice has been to overlook the possibility of their surviving the expiration of the terms in determining the nature of the remainders.^ But the deposition of a witness, taken sixty years before a trial, has been rejected in the absence of proof of search for the witness.^ So where a term was for sixty years, the court took into consideration the possibility of the termor living after its expiration.* On the other hand, in an action of ejectment, where the lessor of the plaintiff, to prove his title, put in a settlement 130 years old, by which it appeared that the party through whom he claimed had four elder brothers, the jury were permitted to infer that all these persons were dead, but that they died unmarried." § 1275. The presumption of continuance of life, which exists in cases where a person living a short time since is inferred co^y^^. to be living now, is therefore necessarily variable, in- ance of creasing or diminishing in intensity with the facts of the case. It is a mere inference of fact and not a presumption of law,* and hence readily succumbs to the inference already noticed arising from the expiration of a period beyond which the continuance of life is improbable.^ And the presumption of innocence may be 5 Barb. (N. Y.) 339 ; Ringhouse v. Keever, 49 111. 470 ; Hanoook v. Ins. Co., 62 Mo. 26. " In Doe u. Deakin, 4 B. & Aid. 433, it was held that persons in the neigh- borhood, not of the family, might tes- tify that the absent person had not been heard of by them. And if the demandant's husband had been heard of as living within seven years, though by persons not members of his family, it would certainly affeet the presump- tion upon which she relied." Hoar, J., Flynn.ti. Coffee, 12 Allen, 133. 1 Doe V. Michael, 17 Q. B. 276. See Jones 17. Waller, 1 Price, 229 ; Doe «. Davies, 10 Q. B. 314. See supra, §238. ' Weale v. Lower, PoUex. 67, per Ld. Hale ; Napper v. Sanders, Hutt. 119 ; Ld. Derby's case, Lit. R. 370. 3 Benson v. Olive, 2 Str. 920 ; Wan- by V. Curtis, 1 Price, 225. * Beverley v. Beverley, 2 Vern. 131 ; Doe V. Andrews, 15 Q. B. 756. 5 Doe V. Deakin, 3 C. & P. 402 ; 8 B. & C. 22. As to judicial notice of death, see supra, § 333. 6 Phene's Trusts, L. R. 5 Ch. 150 ; R. w. Lumley, L. R. 1 C. C. R. 196. ' See Bowden v. Henderson, 2 Sm. & Giff. 360; Innis v. Campbell, 1 Rawle, 373 ; Keech v. Rinehart, 10 Penn. St. 240; Bailey u. Bailey, 36 Mich. 181. Supra, § 1274 ; infra, § 1277. See on this topic article from 458 § 1276.] THE LAW OF EVIDENCE. [book III. invoked in criminal prosecutions, to either weaken or strengthen the presumption that the life of a particular person continues.* § 1276. If a person has been unheard of for more than seven , ^ years, by those likely to have heard from him if alive, Period of •' ' •' •' , . death to be he is presumed in law to be dead, unless the circum- from facts Stances of the case explain his not being heard from on of case. grounds consistent with his continuance in life.^ But the time of death, whenever it is material, must be inferred from all the circumstances of the case ; for there is no presumption as to when during the seven years he died.' Irish Law Times cited in 14 Cent. L. J. 286. Whart. & St. Med. Jur. iii. §§ 540, 520 el seg., 917. 1 R. ». Twyning, 2 B. & A. 386 ; R. V. Lumley, 1 Law Rep. C. C. 196 ; 38 L. J. M. C. 86 ; and 11 Cox, 274, S. C. ; R. V. Wiltshire, L. R. 6 Q. B. D. 366 ; Shriver v. State, 65 Md. 279. See, further, R. n. Jones, 11 Cox, 358 ; and see, as to presumptions in bigamy prosecutions, Whart. Grim. Et. §§ 811 -13 ; R. V. Harborne, 2 A. & E. 540 ; R. V. Mansfield, 1 Q. B. 449. See, also, Lapsley v. Grierson, 1 H. of L. Cas. 498. As already noticed, absence unheard of in another state of the American Union is equivalent to absence beyond seas. Newman «. Jenkins, 10 Pick. 515 ; Innis v. Campbell, 1 Rawle, 373. And see Nesbit, in re, 3 Demarest, 329 ; Whart. Cr. Ev. § 811 ; supra, § 1274. 2 White V. Mann, 26 Me. ?61 ; Eagle V. Emmett, 4 Bradf. N. Y. 117 ; Merritt V. Thompson, 1 Hilt. N. Y. 550 ; Clarke V. Canfleld, 15 N. J. Ch. 119 ; Garden V. Garden, 2 Houst. 574 ; Gibbes v. Vincent, 11 Rich. (S. C.) 323; Ross v. Clore, 3 Dana, 189 ; Puckett u. State, 1 Sneed, 355. See Burr v. Sim, 4 Whart. 150. 3 Re Phene's Trusts, L. R. 5 Ch. 150; Re Lewes's Trusts, L. E. 6 Ch. 357 ; 40 L. J. Ch. 507. See, to same 454 effect, Lewes's Trusts, re. Law Rep. 11 Eq. 236; Hickman v. Upsall, L. R. 20 Eq. 136 ; Lambe v. Ortou, 29 L. J. Ch. 286 ; Thomas v. Thomas, 2 Drew & Sra. 298 ; In re Benham's Trusts, 37 L. J. Ch. 265, per Rolt, L. J. ; reversing de- cision by Malins, V. C, as reported in 36 L. J. Ch. 502 ; L. R. 4 Eq. 416, S. C. ; In re Peck, 29 L. J. Pr. & Mat. 95 ; Dunn V. Snowden, 32 L. J. Ch. 104; 2 Drew & Sm. 201, S. C. ; Doe v. Nepean, 5 B. & Ad. 86 ; 2 N. & M. 219, S. C. ; Nepean v. Doe d. Knight, 2 M. & W. 894, in Ex. Ch. ; 2 Smith L. C. 476, 492, 577, S. C. In that case Lord Denman, in pronouncing the judgment of the court, observes: "Inconveni- ences may no doubt arise, but they do not -warrant us in laying down a rule, that the party shall be presumed to have died on the last day of the seven years, which would manifestly be con- trary to the fact in almost all in- stances." 2 M. & W. 913, 914. As to American oases to the same general effect may be cited, Davie v. Briggs, 97 U. S. 628 ; White v. Mann, 26 Me. 370 Smith u. Knowlton, 11 N. H. 197 Stourvenel v. Stevens, 2 Daly, 319 MoCartee v. Camel, 1 Barbour Ch. 456 Whiting V. Nioholl, 46 111. 241 ; Tisdale V. Ins. Co., 26 Iowa, 171 ; 28 Iowa, 12 State V. Moore, 11 Ired. (N. C.) L. 160 Spencer v. Roper, 13 Ired. (L.) 333 CHAP. XIV.] PRESUMPTIONS : BEATH. [§.1277. § 1277. It has been incidentally observed that, aside from the general presumption of death arising from unexplained absence abroad for seven years, certain facts have been death in- noticed by the courts as affording grounds on which from other inferences of death, more or less strong, may rest.^ ^^'^^^' Among these facts may be noticed : Presence on board a ship known to have been lost at sea, the inference of death increasing with the Conley v. HoUowaj, 22 S. C. 380; Hancock v. Ins. Co., 62 Mo. 26. In Phene's Trusts, supra, the evi- dence was that N., born in 1829, went to America in 1853, and wrote home frequently until August, 1858, when he wrote on board an American man- of-war. From this date no letters were received from him. It was found, however, that he was entered in the books of the American navy as having deserted on June 16, 1860, when on leave, and had not been heard from since. " If I am to draw a conclusion at all," said Giffard, L. J. , "I should infer that a person in the position of a sergeant, having nothing against his character, would not desert, and that he died while on leave, and so was not heard of by the authorities. It is enough for me, how- ever, to state that in my opinion the burden of proof is on the representa- tive of Nicholas Phene Mill, aud that Nicholas Phene Mill's representative has not proved affirmatively that Nicholas Phene Mill survived the tes- tator." Hence Giffard, L. J., refused to presume that N. was alive on Janu- ary 6, 1861, overruling Benham's Trusts, L. R. 4 Eq. 416. In Pennefather v. Pennefather, Irish Eep. 6 Eq. 171, the evidence was that a son, first tenant in tail in remainder, left Ireland on April 11th, 1858, and was not subsequently heard from. His father died May 8th, 1858. It was held in 1872 that it was to be presumed that the son survived. the father. The return of a person, presumed to have been dead, after an absence of over seven years, during which he has not been heard from, avoids any acts done by his representatives without judicial authority. Mayhugh v. Rosen- thal, 1 Cinoin. 492. 1 Best on Evidence (1870), § 409. See R. a. Inhabitants of Twining, 2 B. & A. 386 ; R. v. Inhabitants of Har- borne, 2 A. & E. 540. In the latter case Lord Denman said : "I must take this opportunity of saying that nothing can be more absurd than the notion that there is to be any rigid presump- tion of law on such questions of facts, without reference to accompanying circum- stances^ suchj for instance, as the age or health of the party. There can be no such strict presumption of law. It may be said : Suppose a party were shown to be alive within a few hours of the second marriage, is there no presumption then ? The presumption of innocence cannot shut out such a, presumption as that supposed. I think no one, under such circumstances, could presume that the party was not alive at the time of the second mar- riage." Proof, therefore, that the party was alive twenty-five days before the second marriage was held to over- come tlie presumption of innocence ; which, on the other hand, prevailed in R. V. Twining against proof that the defendant had been heard of alive one year previous to the marriage. To the same effect is Lapsley v. Grierson, 1 H. L. Cas. 498. 455 § 1277.] THE LAW OF EVIDENCE. [book III. length of time elapsing since the shipwreck ;i exposure to peculiar perils, to which death will be imputed if the party has not been subsequently heard from ;^ ignorance, as to such person, after due inquiry, of all persons likely to know of him if he were alive ;* ces- sation of writing of letters, and of communications with relatives, in which case the inference rises or falls with the domestic attachments of the party .^ Thus, death may be inferred by a jury from the mere fact that a party who is domestic, attentive to his duties, and with a home to which he is attached, suddenly, finally, and without explanation, disappears.* On the other hand, it is admissible to • See Cookburn, C. J., charge in R. V. Orton, for an able exposition of this presumption ; Sillick v. Booth, 1 Y. & C. 117 ; Ommaney v. Stilwell, 23 Beav. 328 ; Patterson v. Black, 2 Park, on Ins. 919 ; Gary v. Post, 13 How. Pr. 118 ; Bowditch ii. Jordan, 131 Mass. 321 ; North Carolina University v. Har- rison, 90 N. C. 385 ; Jamison v. Smith, 35 La. An. 609 ; Hudson v. Poindexter, 42 Miss. 304. 2 Watson V. King, 1 Stark. R. 121 ; 4 Camp. 272 ; White v. Mann, 26 Me. 361. In the case of a missing ship, bound from Manilla to London, on which the underwriters had voluntarily paid the amount insured, the death of those on board was presumed by the Prerogative Court, after the absence of only two years, and administration was granted accordingly. In re Hutton, 1 Curt. 695 ; Taylor's Ev. § 158. A tenant for life, having received a small quarterly payment, started on a pedestrian tour, and was never heard of since. The small sum which became payable at the end of the next quarter, was never applied for. It was held that the presumption was that she was dead ; that on the evidence she could not be presumed to have died before June, 1866, when such payment was due; but that she must be taken to have died soon after June, 1866. Hick- man ?i. Upsall, 20 L. R. Eq. 136. 456 There is no presumption that a man who disappeared at an undesignated period in the year 1809 was dead on the 29th of April, 1816. Dean v. Bitt- ner, 77 Mo. 101. See Bailey v. Bailey, 36 Mich. 181. ^ Pauooast v. Addison, 2 Ear. & J. 350. See Benham's Trusts, in re, L. R. 4 Eq. 415 ; White v. Mann, 26 Me. 361 ; Hall, in re, Wallace, J., 185 ; Jackson V. Etz, 5 Cow. 314 ; McCartee v. Camel, 1 Barb. (N. Y.) Ch. 455 ; Clarke v. Can- field, 15 N. J. Ch. 119 ; Holmes v. John- son, 42 Penn. St. 159 ; Spencer v. Roper, 13 Ired. 333 ; Ringhouse v. Keever, 49 111. 470 ; John Hancock Ins. Co. v. Moore, 34 Mich. 4 ; Bailey v. Bailey, 36 Mich. 181. It is necessary that there should have been conscientious and diligent inquiry made at the places where the person resided when last heard from, as well as from his relatives and con- nections. Ibid. ; Wentworth v. Went- worth, 71 Me. 72. * Supra, § 1274 ; Tisdale v. Ins. Co., 26 Iowa, 170 ; Hancock v. Ins. Co., 62 Mo. 121 ; Lancaster v. lus. Co., 62 Mo. 12 ; Scheel v. Kidman, 77 111. 301 ; Eaton I). Tallmadge, 24 Wis. 217 ; An- derson V. Parker, 6 Cal. 197 ; Ewing i-. Savary, 3 Bibb, 235. Supra, § 223. 5 Hancock v. Ins. Co., 62 Mo. 26 ; Tisdale v. Ins. Co., 26 Iowa, 170 ; 28 Iowa, 12; Cox v. Ellsworth, 18 Neb. CHAP. XIV.j PRESUMPTIONS: DEATH. [§ 1278. explain such disappearance by putting in evidence pecuniary embar- rassments.* It is scarcely necessary to say that evidence tending to rebut such presumption (e. g., proof that the alleged deceased had been heard from by letter, or was personally warned in a liti- gated suit), is always relevant for what it is worth .^ It must be also kept in mind that, in any view, death, even when the alleged corpse is seen, is a matter of inference, not of demon- stration, depending upon an identification of remains as to which there is always a possibility of mistake.' Reputation, not a matter of family acceptation, is, by itself, not admissible as proof of death.* § 1278. In all questions relating to the authority of the par- ties to whom letters testamentary or administrative are , Letters tes- granted, such letters are primd facie proof of the death tamentary of the alleged decedent," and are conclusive in cases e°aliy where there is " no plea in abatement denying the death P™°^ °^ of [the principal], and setting up the consequent inva- lidity of the letters of administration."' Such letters, also, may bind parties and privies.^ But, as far as concerns a party, to whose estate letters of administration have been taken out, on an erroneous belief that he was dead, such letters are a nullity,* and hence he is not precluded by the letters from recovering from third parties debts they have bond fide paid to the administrator.' And between 664. See Doe d. Lloyd v. Deakin, 4 B. & A. 433. See the judgment of Lord EUenborougli in Doe d. George v. Jes- sou, 6 East, 85 ; Howe v. Hasland, 1 W. Black. 404 ; Bailey v. Hammond, 7 Ves. 590 ; Doe d. France v. Andrews, 15 Q. B. 756. ' Sensenderfer v. Ins. Co., 19 Fed. Rep. 68. 2 Keech v. Rinehart, 10 Penn. St. 240 ; Smith v. Smith, 49 Ala. 156. See Hoyt V. Newbold, 45 N. J. L. 219 ; Nor- ris V. Edmunds, 90 N. C. 382. Supra, §223. 3 See Whart. on Horn. § 640 ; Ddder- zook's case. Ibid. Appendix ; Nourse v. Packard, 138 Mass. 307. * Supra, § 223. 6 See fully supra, § 810 ; Thompson i;. Donaldson, 3 Esp. 63 ; Moons v. De Bernales, 1 Russ. 301 ; French v. French, 1 Dick. 268 ; Newman v. Jen- kins, 10 Pick. 515 ; MdKimm v. Riddle, 2 Dall. 100; Cunningham v. Smith, 17 Penn. St. 458 ; McNair v. Ragland, 1 Dev. (N. C.) Eq. 533 ; Tisdale u. Ins. Co., 26 Iowa, 170 ; French v. Frazier, 7 J. J. Marsh. 425. •i Sharswood, J., Cunningham o. Smith, 70 Penn. St. 458 ; citing New- man V. Jenkins, 10 Pick. 515 ; MoKimm V. Riddle, 2 Dall. 100 ; Axers v. Mus- selman, 2 P. A. Browne, 115. ' Carroll o. Carroll, 2 Hun, 609; S. C. on App., 60 N. Y. 123 ; Randolph v. Bayne, 44 Cal. 366 ; Lewis v. Ames, 44 Tex. 319. 8 Supra, § 810. ' Lavins v. Bank, cited supra, § 810. 457 § 1278.] THE LAW OF EVIDENCE. [book III. strangers, when the fact of death is to be proved, letters of admin- istration to his estate are res inter alios acta, and are inadmissible.' 1 Ibid. ; Thompson e. Donaldson, 3 Esp. 63 ; Beamish, in re, 9 W. R. 475 ; Jochumsen v. Suffolk Bank, 3 Allen, 87 ; Carroll u. Carroll, 60 N. Y. 123 ; Buntin v. Duchane, 1 Blackf. 26 ; Eng- lish V. Murray, 13 Tex. 866. See fully supra, §§ 810, 811. See Davis v. Greeve, 32 La. An. 420. On this topic we have the follow- ing from the New York Court of Ap- " Letters testamentary and of ad- ministration are conclusive evidence of the authority of the persons to whom granted, and are sufficient to establish the representative character of the plaintiff who assumes to sue by virtue thereof. 2 R. S. 80, § 56 ; Belden v. Meeker, 47 N. Y. 307 ; Farley «. Mc- Connell, 52 Ibid. 630. So, also, a will , proved with a certificate of the surro- gate, and attested by his seal of office, may be read in evidence without fur- ther proof, and the record of the same, and the exemplification Vif the same by the surrogate, may be received in evi- dence the same as the original will would be if produced and proved. 2 R. S. 58, § 15. The object of this pro- vision was to make the certificate of the surrogate and the record of the will or exemplification primd facie evidence only. Vanderpoel v. Van Valken- burgh, 6 N. Y. 190, 199. In 2 Green- leaf's Evidence, § 339, it is said, that ' the proof of the plaintiff 's represen- tative character is made by producing the probate of the will, or the letters of administration, which primd facie are sufficient evidence for the plaintiff of the death of the testator or intestate, and of his own right to sue.' This is undoubtedly the true rule, and it will be found upon examination that the authorities cited- upon this question 458 relate mainly to oases where the right of the administrator or executor to sue is involved, or where the parties were connected with the proceeding, in- terested in the estate, and had their rights adjudicated upon when the will was established before the Probate Court. Such are the cases cited from other states, with scarcely any excep- tion , and none of them can be regarded as sustaining the broad principle that the probate of a will of itself estab- lishes the death of the testator in any other case. The general rule laid down in 1 Greenleaf s Evidence, § 550, as to the effect of the probate of a will, or the grant of letters of administration, is also liable to criticism, and is not, I think, sustained by the English cases which are cited to support it. It may then be considered as established by the cases relied on by the plaintiff's counsel that letters testamentary, and the proofs of a will before a surrogate, are only evidence in some proceedings arising out of the will itself, and the parties who claim under it or are con- nected with it ; and they cannot, upon their face, affect, or in any way con- trol, the interest of parties who are entirely disconnected with the pro- ceedings before the surrogate, and not within his jurisdiction. It follows, therefore, that in an action of ejectment brought by the widow to recover her dower, the probate of the will, and the proceedings thereon, are not competent evidence to prove the fact that the husband is dead, which is the very basis and foundation of the action, and without proof of which it cannot be maintained. " The English cases sustain the doc- trine that letters of administration are not evidence of death, and that it must CHAP. XIV.] PRESUMPTIONS: DEATH. [§ 1280. The suggestion on record of a plaintiff's death and the entering of his devisees as parties, is, so far as concerns the particular case, prima facie evidence of his death.^ § 1279. When simply the fact is known of the death of a person capable of having had issue, death without issue cannot YtsaXb. be presumed.^ But such presumption may be drawn without is- from any circumstances indicating non-marriage or child- be pre- lessness.' The presumption was held inapplicable to a ^'^™® ' woman, who emigrated along with her husband and seven children, to America, in 1847, where she died in 1866, though not any of the children had been heard of for ten years preceding the trial.* § 1280. The Schoolmen, on the topic of survivorship, as well as on most other topics they discussed, laid down a series p^^ ^^ of presumptions of law, settling the various contingencies tion of sur- which they contemplated as probable. Presumptions of inacom- law of this class, we need scarcely say, are no longer ter one^of' recognized.' The question of survivorship must be de- ^*<^*- "be otherwise proved. In Thompson v. Donaldson, 3 Esp. 63, Lord Kenyon held that letters of administration are not sufficient proof of death, and re- marked : ' The death was a fact capable of proof otherwise.' See, also. Moons I. De Bernales, 1 Euss. 301." Miller, J., Carroll v. Carroll, 69 N. Y. 123. 1 Stebbins v. Duncan, 108 U. S. 32. 2 Elchards v. Eiohards, 15 East, 293 ; Stinohfield u. Emerson, 52 Me. 465 ; Sprigg V. Moale, 28 Md. 497 ; Harvey V. Thornton, 14 111. 217 ; Hays v. Tribble, 3 B. Mon. 106. See, however, , Doe V. Deakin, 3 C. & P. 402 ; 8 B. & C. 22, under name of Doe v. Walley, where a jury were permitted to pre- sume that four elder brothers, who had not been heard from, had died without issue. 3 King V. Fowler, 11 Pick. 302 ; M'Comb V. Wright, 5 Johns. Ch. 263. See Doeu. Griffin, 15 East, 293 ; Webb's Est. in re, 5 Ir. E. Eq. 235 ; Shriver v. State, 65 Md. 279 ; Shour v. McMaokin, 9 Lea, 601. See Greaves v. Greenwood, (Ex. Div. 1876), 24 W. E. 926 ; Miller V. Beates, 3 S. & E. 490. < Mullaly V. Walsh, 6 Ir. E. C. L. 314. 5 Phone's Trusts, in re, L. E. 5 Ch. 150. See Mason v. Mason, 1 Mer. 318 ; Barnett v. Tugwell, 31 Beav. 232; Selwyn, in re, 3 Hag. N. S. 748 ; Dow- ley V. Winfield, 14 Sim. 277 ; Nichols, in re, L. E. 2 P. & D. 361 ; Coye v. Leach, 8 Met. 371 ; Eussell v. Hallett, 23 Kan. 276 ; Smith u. Croom, 7 Fla. 81 ; People v. Feilen, 58 Cal. 218. To the same effect is Newell v. Nichols, 75 N. Y. 78, where Church, C. J., said: "It is not impossible for two persons to die at the same time, and when exposed to the same peril under like circumstances, it is not as a question of probability very unlikely to happen. At most the difference can only be a few brief seconds. The scene passes at once beyond the vision of human penetration, and it is as unbe- coming as it is idle for judicial tri- bunals to speculate or guess whether 459 § 1281.] THE LAW 01' EVIDENCE. [BOOK III. termined by all the facts in the particular caseJ Hence in Massa- chusetts, in a case where a father, seventy years old, and his daughter, thirty-three years old, were lost together in a steamer foundering at sea, when of the circumstances of the loss nothing was known, it was held that there could be no presumption of sur- vivorship, and that there was no evidence, therefore, on which a party bringing suit could recover .^ In an English case, somewhat similar in character, the court, unable to reach a satisfactory con- clusion, advised a compromise, which was effected.' § 1281. The rule that the actor, who seeks, when there is no proof of the circumstances of the common death, to re- no*proof'of cover on the basis of the survivorship of his decedent, circum- must fail fi'om want of proof to make out his case, has stances of "^ _ _ ' death actor been further applied in a case in which a husband gave his whole property to his wife, providing that, " in case my said wife shall die in my lifetime," the estate should go to the children. The testator, his wife, and children perished at sea, being swept from the deck by the same wave. The Lord Chancellor (assisted by Oranworth, B., Wightman, J., and Martin, B.) held that there was no evidence to prove that the wife survived the hus- band, and that consequently the plaintiff, whose case rested on the assumption of the wife's survivorship, could not recover.* The same conclusion was afterwards reached, where the husband and wife and their two young children perished at sea in the same storm ;' where a mother and a son of seven years so perished f and where a hus- during the momentary life struggle one 1876. And see Soruttou v. Pultillo, L. or the other may have ceased to gasp R. 19 Eq. 369 ; Eidgway, in re, 4 Redf. first." See Sanders v. Simciek, 65 Cal. 226. 60. 6 Stinde v. Goodrich, 3 Redf. 87 ; 1 Sillick V. Booth, 1 Y. & C. 117, 55 How. N. Y. Pr. 301. 126 ; Moehring v. Mitchell, 1 Barb. In WoUaston v. Berkeley, L. R. 2 Ch. 264 ; Pell u. Ball, 1 Cheves Ch. Ch. D. 213, L. and G., a husband and 99 ; Smith v. Groom, 7 Fla. 81. wife were drowned with all hands on 2 Coye V. Leach, 8 Met. 371. board at sea. By a settlement made 3 R. V. Hay, 2 W. Bl. 640. See on their marriage, L. agreed that he Fearne's Posth. Works, 38. would after the marriage transfer cer- * Underwood v. Wing, 4De G., M. & tain funds to the trustees, and G. as- G- 633. signed to the trustees other funds. 5 Wing V. Augrave, 8 H. of L. Cas. The trustees were to pay the income of 183. SeeRobinsonu.Gallier, 2 Wood's the funds to be conveyed by L. to L. C. C. 478 ; S. C. in South. L. R. Oct. for life, and after his death to G. for 460 CHAP. XIV.] PRESUMPTIONS : SURVIVORSHIP. [§ 1282. band and wife were killed in a railway collision, their dead bodies being found together two days after death.' § 1282. Upon a survey of the cases, we may conclude the law to be as follows :^ (1.) Where persons ranging between in- . ■, ,, .,, But if any tancy and extreme old age perish by a common catas- circum- trophe, and where there is no information as to either of deTth^are them subsequent to the shock, no such presumption can PJ°^®'^' be drawn from differences of age or sex as will enable a ground for court to give judgment for a plaintiff seeking to recover on the claim of survivorship. (2.) At the same time, in consist- ency with the rulings above given, if one of the parties is in ex- treme infancy, or in very advanced and decrepit old age, we may assume, as a presumption of fact, that such person died before another not so disabled, in all cases where there was an opportunity to struggle for life. (3.) The law only refuses to permit a presump- tion of fact of this class to be drawn where there is no evidence at all as to the parties subsequent to the shock. If there is any evi- dence, no matter how slight, leading to the conclusion that one of the parties was alive subsequent to a period when the other was probably dead, this is ground on which a jury may find survivor- ship.3 life, and then in trust for children, or ' Wheeler, in re, 31 L. J. P. M. & A. in default of children, in trust for the 40. See Kansas Pac. R. R. v. Miller, survivor of L. or Gr., his or her ex- 2 Col. T. 442. ecutors and administrators. The trus- ^ See Whart. & St. Med. Jur. 3d ed. tees were to pay the income of G.'s § 1045. funds to L. during his and her joint ' Mr. Beat (Evidence, § 410) states lives, and in case he should survive, the rule as follows : — then, after G.'s decease, to transfer the " When, therefore, a party on whom honds to whomever she might appoint the onus lies of proving the survivor- hy will, and, in default of appointment, ship of one individual over another, has to her next of kin ; but if she should no evidence beyond the assumption survive L., in trust to transfer the that, from age or sex, that individual bonds fo her, her executors or admin- must be taken to have struggled longer istrators. After the marriage L.'s against death than his companion, he funds were transferred to the trustees, cannot succeed. But then, on the other L. by will gave his whole property to hand, it is not correct to infer from this, his wife, absolutely, and Gr. bequeathed that the law presumes both to have the whole of her property to her bus- perished at the same moment ; this band for life, and after her death to her would be establishing an artificial pre- sisters. It was held that the funds sumption against manifest probability, settled belonged to the legal personal The practical consequence is, however, representatives of each settlor. nearly the same ; because, if it cannot 461 § 1284.] THE LAW OF BVIDBNCE. [BOOK III. § 1283. The length of time after which it is to be presumed that a ship, which has been unheard of, is lost, is to be de- Presump- ^' tion of loss termined by the inferences to be drawn from the concrete fromTapse case.* As a basis of proof, mere rumors are not sufE- of time. gjgj^|. . ^\^QJ.Q jQ^gt ije trustworthy information.' If there are any indications of foundering, — e. g., a violent storm at a particu- lar point where the ship was, her unseaworthiness, remnants of wreck, — the loss may be put earlier than would be permissible if the ship had not been heard of at all.^ But there must be proof of the ship having left port.^ IV. PRESUMPTIONS OF UNIFORMITY AND CONTINUANCE. § 1284. When a juridical relation is once established, it is enough, generally, for a party relying on such relation panyTeek- ^0 ^^ow its establishment, and the burden is then on the ing to opposite party to show that the relation has ceased to prove rr r ./ change in exist. It has frequently been said, that in such cases conditions, the law presumes the continuance of the relation. But this is to confound two very different things : burden of proof requiring me to prove a particular thing, and presumption of law assuming a thing without proof. Ordinarily a party seeking to assail an established condition has the burden on him to make good his case. I claim under a will, for instance ; but, after prov- ing the will, though the party attacking the will has the burden on him, supposing the will to be duly proved, to show a superior title, yet this is a matter only of burden of proof, and there is no such presumption of law in my favor as will interfere with the ultimate he shown which, died first, the fact will New by v. Eeed, 1 Park. Ins. 148 ; Op- be treated by the tribunal as a thing penheim u. Leo Woolf, 3 Sandf. Cli. unasoertainable, so that for all that ap- 571 ; Bioeard v. Shepherd, 14 Moore P. pears to the contrary both Individuals C. 471 ; Houstman v. Thornton, Holt may have died at the same moment." N. P. C. 243 ; Twemlin v. Oswin, 2 In Nourse v. Packard, 138 Mass. 307, Camp. 85. it was held that where a party, who ^ Koster v. Reed, 6 B. & C. 22. was found dead in the ruins of a fallen ' Silliok v. Booth, 1 Y. & C. 117. See house, died from suffocation, the infer- charge of Chief Justice Cockburn, in enoe was that he survived the shock of R. v. Orton, as to loss of The Bella. the fall. * Koster v. Innes, R. & M. 333 ; ' Green v. Brown, 2 Str. 1199 ; Cohen u. Hinckley, 2 Camp. 51. Thompson v. Hopper, 6 E. & B. 172 ; 462 CHAP. XIV.] PRESUMPTIONS: UNIFORMITY: CONTINUANCE. [§1284. adjudication of the case on the merits. A debt was due me a year ago. I prove this, and the defendant has the burden on him to prove payment ; but when the question is whether such payment is proved, this question is not affected by any presumption of law drawn from the fact that a year ago the debt was due.' From this it follows that when I once establish a juridical relation in itself not so limited as to time as to have expired at the period of litiga- tion, it is not necessary for me to prove the continuance of the rela- tion. The burden is on my antagonist to prove that the relation has ceased to exist ; though, as has just been said, there is no pre- sumption of law against him which, when the evidence is all in, can outweigh any preponderance in such evidence in his favor.^ We are therefore to understand that the presumption of continuance, as it is called, is simply a presumption of fact, whose main use is in designating the party on whom lies the burden of proof. In this sense we are justified in holding that the continuance of an existing condition is a presumption of fact, dependent for its intensity on the circumstances of the particular case. The burden is on the party seeking to show change, and if he fails to show it, he loses his case.' But the question is one dependent upon the relation of 1 See L. 12, 25, § 2 ; D. L. 1 C. de Middlesworth, 4 Denio, 431 ; Nixon v. probat. See supra, §§ 354 et seq. Palmer, 10 Barb. 175. This analogy 2 See Heffter, App. to Weber, 280 ; is fairly applicable to the present case. Scales V. Key, 11 A. & E. 819 ; Mercer and justiiies the admission of this evi- V. Cheese, 4 M. & Gr. 804; Price v. dence." Hunt, C, Wilkins o. Earle, Price, 16 M. & W. 232 ; Rixford v. Mil- 44 N. Y. 172. See, also, R. v. Lille- ler, 49 Vt. 319. It is in this sense that shall, 7 Q. B. 158. we are to understand the term " pre- ' Bell i^. Kennedy, L. R. 3 H. L. 307; sumption," as used in the following as SmoutB. Ilbery, 10 M. & W. 1 ; Jackson well as in other opinions : — v. Irvin, 10 Camp. 60 ; Brown v. Burn- " A partnership once established is ham, 28 Me. 38 ; Eames v. Eames, 41i presumed to continue. Life is pre- N. H. 177 ; Farr v. Payne, 10 Vt. 615 ; sumed to exist. Possession is pre- Martin v. Ins. Co., 20 Pick. 389 ; Ran- snmed to continue. The fact that a dolph v. Easton, 23 Pick. 242 ; Kilburn man was a gambler twenty months i/. Bennett, 3 Met. 199 ; Brown v. King, since, justifies the presumption that 5 Met. 173 ; Gelston v. Hoyt, 1 Johns, he continues to be one. An adulte- Ch. 543 ; Wright v. Ins. Co., 6 Bosw. rous intercourse is presumed to con- 269 ; Leport v. Todd, 32 N. J. L. 124 ; tinue. So of ownership and non-resi- Bell w. Young, 1 Grant (Pa.), 175 ; Er- dence. Walrod v. Ball, 9 Barb. 271 ; skine ;;. Davis, 25 lU. 251 ; Murphy u. Cooper V. Dedrick, 22 Ibid. 516 ; Smith Orr, 32 111. 489 ; Goldie v. McDonald, V. Smith, 4 Paige, 432 ; MoMahon v. 78 111. 605 ; Montgomery Plank R. v. Harrison, 2 Seld. 443 ; Sleeper v. Van Webb, 27 Ala. 618 ; Barelli v. Lytle, 4 463 § 1284.] THE LAW OF EVIDENCE. [BOOK III. conditions to time. A state of war, for instance, existing yester- day, will be presumed to continue to-day ; but it will not be pre- sumed to continue after the lapse of three years. ^ In fact, so far from continuance being a legal presumption, in things dependent upon human purposes, the presumption, in the long run, is the other way. Man never continueth in one stay. Of what will happen ten years hence, the only presumption that can be offered with anything like certainty is, that there will be a change, at least in the actors in the drama, from what is happening to-day. The time required for the change depends upon the nature of the object. Fifty years ago, the houses in one of our western cities did not exist. Ten minutes ago, the man whom I now see standing in front of one of those houses was in his counting-room, or in the cars. We cannot, therefore, speak of a legal presumption of continuance, when, if we are to draw any inference that would be permanently applicable, it would be that of change. And yet, for short calculations, so far as is consistent with the inductions of social science, we are justified in saying, as a means for adjusting the burden of proof, that the presumption is so far in favor of continuance that the burden is on a party who seeks to show a change from a condition which, when we last heard from it, was settled, and which, from the nature of things, would probably exist to-day unchanged.' La. An. 558 ; Swift v. Swift, 9 La. An. be concluded that the custom still sub- 117 ; Sullivan v. Goldman, 19 La. An. sisted at the time of the trial in 1840. 12 ; Mullen v. Pryor, 12 Mo. 307 ; Scales v. Key, 11 A. & E. 819. O'Neill V. Mining Co., 3 Nev. 141. It has also been held in England, in As to continuance of partnership, see a settlement case, that where a son, Clark V. Alexander, 8 Scott N. R. 161 ; though long since arrived at manhood, Alderson v. Clay, 1 Stark. 405 ; Clark has continued unemanoipated, as in V. Leach, 32 Beav. 14. As to contin- the days of his infancy, this state uanceof agency, see Whart. on Agency, would be held to continue, unless § 94 ; Pickett v. Packham, L. R. 4 Ch. there be some evidence to the contrary. Ap. 190 ; Ryan v. Sams, 19 Q. B. 460. R. v. Lilleshall, 7 Q. B. 158 ; explain- I Covert V. Gray, 34 How. (N. Y.) ing R. v. Oulton, 5 B. & Ad. 958 ; 3 N. Pr. 450. & M. 62, S. C. So the appointment of ^ Among the Illustrations of the a party to an official situation will (R. proposition in the text may be men- v. Budd, 5 Esp. 230, per Ld. Ellen- tioned the following :— borough ; Pickett v. Packham, 4 Law Where a jury found that a certain Rep. Ch. Ap. 190), at least for a reason- custom existed up to the year 1689, able time, be presumed to continue in the court held that in the absence of force. all evidence of its abolition, it was to So, if a debt be shown to have once 464 CHAP. XIV.] PKBSUMPTIONS : CONTINUANCE. [§ 1287. § 1285. For the purpose, in like manner, of determining the bur- den of proof, we may hold, as a presumption of fact, more or less strong according to the concrete case, that a party ^^^^'u^''? is presumed to continue to reside in the last place known *? ^^ con- to have been accepted by him as such residence.* The same inference is applicable to the settlement of a pauper,^ and to domicile.^ But here, again, we fall back upon inferences varying with the concrete case. A person leaving a comfortable home is " presumed," in this view, to intend to return ; but it is otherwise with a tramp who owns only the clothes on his back. The " pre- sumption" of continuous residence attaches properly to the man of solid business ; no presumption but that of mobility of residence attaches to the tramp.* § 1286. When occupancy is proved, whether of real or persotial property, we may infer, for the like purpose, as a pre- sumption of fact, that the occupation is continuous ; the pregu^med^ inference varying with the person occupying, the thing '? ^^ con- occupied, and the place and period of oceupation.* For the same purpose, also, ownership is presumed to continue until alienation." § 1287. We have already noticed that in civil, as well as in crim- inal issues, the character of a party is presumed to be good, and that the burden is on those by whom it is assailed.' We have also seen that when, in particular issues, character is admissible to in- existed, its continuance will be pre- 105 ; Prather v. Palmer, 4 Ark. 456 ; sumed, in the absence of proof of pay- Swift v. Swift, 9 La. An. 117 ; Whart. ment, or some other discharge. Jack- Confl. of Laws, § 56. son V. Irvin, 2 Camp. 50, per Ld. Ellen- ^ R. u. Budd, 5 Esp. 230. borough. ' Whart. Confl, of Laws, § 56 ; Lau- As to uniformity of habits, indicat- derdale Peerage, 10 App. Ca. 692. As ing system, see supra, §§ 38 ef seq. ; and to inferences in respect to domicile, see see Blake v. Ass. Soc, 40 L. T. 211. Fulweiler v. Lutz, 112 Penn. St. 107. 1 Bell V. Kennedy, L. E. 3 H. L. 307 ; ' Ripley v. Hebron, 60 Me. 379. See Whicker v. Hume, 7 H. of L. 124 ; Greenfield v. Camden, 74 Me. 56. Church V. Rowell, 49 Me. 367 ; Little- * Smith v. Stapleton, Plowd. 193 ; field V. Brooks, 50 Me. 475 ; Shaw o. Winkley v. Kaime, 32 N. H. 268 ; Shaw, 98 Mass. 158 ; Randolph v. Eas- Currier v. Gale, 9 Allen, 622; Rhone ton, 23 Pick. 242 ; Kilburn v. Bennett, v. Gale, 12 Minn. 54 ; Hanson v. Chia- 3 Met' 199 ; First Nat. Bk. v. Balcom, tovich, 13 Nev. 395. 35 Conn. 351 ; Goldie v. McDonald, 78 ^ Magee v. Scott, 9 Cash. 148. 111. 605 ; Daniels v. Hamilton, 52 Ala. ' Supra, § 55. VOL. II.— 30 465 § 1287.] THE LAW OF EVIDENCE. [book III. crease or reduce damages, character is regarded as convertible with reputation ; and the inquiry is, not what are the peculiar traits of the party, in the opinion of the witness examined, but what is the „ reputation of the party in the community in which he Habit and ^ .„..., l.^ -l \.-j. f appearance lives.* In questions 01 identity, however, the habits or to beTon- individuals may come up for comparison, and it may be- tinuous. gQjjjg ^ material question whether a claimant has the characteristic traits of the person with whom he pretends to be identical. And the admissibility of evidence of this class rests on the psychological assumption that habits become a second nature, and that special aptitudes are not unlearned, and special character- istics are not extinguished.^ But questions of identity are an ex- ception to the general rule, which is, that evidence of habit is inad- missible for the purpose of showing that a particular person did or did not do a particular thing.' Another exception is that when a series of acts of a particular person is in evidence, a litigated act imputed to him may be tested by comparison with the acts proved to emanate from him.^ It may be shown, for instance, to sustain a presumption 1 Supra, § 49. 2 For a series of acute observations on this principle, see the charge of Cockburn, C. J., in R. v. Orton. As to admissibility of sucoessire acts of drunkenness to prove habitual drunk- enness, see Commonwealth v. Ryan, 134 Mass. 223 ; supra, § 40. But prior usurious habits cannot be shown to make out a particular case of usury ; Ross V. Ackerman, 46 N. Y. 220; nor prior gambling habits to prove a par- ticular act of gambling ; Thompson v. Bowie, 4 Wall. 463 ; though in both these oases such proof might be admit- ted to disprove the defence of accident or imposition ; supra, § 38. 3 "Each separate and individual case must stand upon, and be decided by, the evidence particularly appli- cable to it. Although ' it, is not easy in all cases to draw the line and to define with accuracy where probabil- ity ceases and speculation begins,' it seems clear that, ordinarily, evidence 466 that the defendant entered into con- tracts with third persons in a particu- lar form would not be admissible in tending to show that he had made a, similar contract with the plaintiff. ' The fact of a, person having once or many times in his life done a particu- lar act in a particular way' does not prove ' that he has done the same thing in the same way upon another and dif- ferent occasion.' See HoUingham v. Head, 4 C. B. N. S. (93 E. C. L.) 388 ; .Tackson v. Smith, 7 Cowen, 717 ; Spenoeley v. De Willott, 7 East, 108 ; Filer v. Peebles, 8 N. H. 226 ; Went- worth V. Smith, 44 N. H. 419; Hol- combe v. Hewson, 3 Campb. 391 ; True V. Sanborn, 27 N. H. 383; Lincoln v. Taunton C. M. Co., 9 Allen, 181 ; Smith ,.. Wilkins, 6 C. & P. 180; Phelps v. Conant, 30 Vt. 277." Delano v. Good- win, 48 N. H. 205. * See argument as to comparison of hands, supra, § 717. In a Pennsylvania case, decided in CHAP. XIV.] PRESUMPTIONS : UNIFORMITY, ETC. [§ 1289. of payment by an employer of a particular workman's wages, that all the workmen in the same employ were regularly paid.* It has also, as we have seen,^ been held admissible to prove habit or system in order to rebut the defence of accident, or to infer scienter. We have a right, again, to infer, as a presumption of fact, that mental conditions continue unchanged, unless there be reasons to infer the contrary. It is on this ground that we infer the continuance of sanity and of chronic insanity ;' and of purposes once deliberately formed ;* and of habits of truthfulness or untruthfulness ;* and of habits of negligence exhibited by prior facts.* The habits, also, of a writer, in using words in a particular sense, may be shown in cer- tain cases of latent ambiguity,' and habits of spelling and writing to indicate genuineness.' The presumption of continuity of personal appearance is to be conditioned by the changes wrought by time, disease, and other modifying influences.* § 1288. Coverture, once proved, is inferred to continue, this being a presumption of fact, varying with the concrete case.'" q « And so as to cohabitation," and when illicit cohabitation ance of ,,.,,.. T . -Ill coverture IS established it is presumed to continue until the charge and cohabi- is proved.'^ *^"°''- § 1289. The same inference is applied to solvency," and to in- solvency, each of which is presumed (as a presumption of fact) to continue until the contrary is proved,'* or andinsoi- until lapse of years leads to the inference of change of '^^'^'^y- 1876, we have the following : " It was ' Supra, § 962. a very natural conclusion that a man * Supra, §§ 714-8. who always paid his taxes promptly in ° London Spectator, Sept. 22, 1885, biennial period, previous to the time 1258. of sale, would have paid them in time '" Erskine v. Davis, 25 111. 251. As to in 1832 and 1833. This, therefore, was presumption of continuance of status, a question for the jury, and not the see Kidder v. Stevens, 60 Cal. 4i4. court." Agnew, C. J., Coxe u. Der- " R. v. Weltshey, 6 Q. B. D. 118; R. ringer, 3 Weekly Notes, 103 ; S. C. 82 v. Jones, 11 Q. B. D. 118. Penn. St. 236. "^ Infra, § 1297. 1 Infra, § 1362. ^ Wallace v. Hull, 28 Ga. 68. 2 Supra, § 38. " Brown v. Burnham, 28 Me. 38. See » See supra, §§ 1252, 1253. Eames v. Eames, 41 N. H. 177 ; Burlew * Whart. on Homicide, § 440. v. Hubbell, 1 Thomp. & C. (N. Y.) 235 ; 5 Supra, § 562; Lum o. State, 11 Body u.Jewsen, 33 Wis. 402; Ramsey v. Tex. Ap. 483. But see Com. v. Ken- McCanley, 2 Tex. 189. The presump- non, 130 Mass. 39. tion of insolvency from a return of nulla ^ Supra, § 40. bona is elsewhere noticed. Supra, § 834. 467 § 1290.] THE LAW OF EVIDENCE. [book III. § 1290. circumstances. An adjudication of bankruptcy may, within a limited range of time, afibrd an inference of insolvency,' but, after the ex- piration of five months, the presumption has been held to be very slight.2 Whether the value of a thing at a particular period may be inferred from its value at other periods depends upon the circumstances of the case. An article whose value fluctuates greatly cannot, by proof that it had a certain price a year ago, be presumed to have the same value now." On the other hand, as to a thing whose value is more or less constant, proof of recent price in the vicinity may be material in enabling the price at the period in litigation to be adjusted.* A re- mote period, under different conditions, cannot in any view be taken as a standard." Nor can peculiar associations, likely to give a ficti- tious value, be taken into account.' Distant markets cannot be con- sulted in proof of value ;' though it is otherwise if the markets be in any way inter-dependent,' or sympathetic' Value to be inferred from circum- etances. 3 1 Sa£Ford v. Grout, 120 Mass. 20. 2 Donahue v. Coleman, 49 Conn. 464. 3 Campbell v. U. S., 8 Ct. of CI. 240 ; Kansas Stockyard Co. v. Couch, 12 Kans. 612 ; Waterson v. Seat, 10 Fla. 326. That value is to be inferred from circumstances, see Com. u. Burke, 12 Allen, 182 ; People v. Caryl, 12 Wend. 547 ; Harrison v. Glover, 72 N. Y. 451 ; Cummings u. Com., 2 Va. Cas. 128 ; Houston u. State, 13 Ark. 66. Hence a party, to show value, may prove what he paid. Dowdall v. R. R., 13 Blatch. 403. But see Haish o. Payson, 107 111. 365. Supra, §§ 39, 447, 448. * The Pennsylvania, 5 Ben. 253 ; White Supra, § 799. 2 Barnes v. Jennings, 40 Vt. 45. 3 Ray !). Rowley, 4 Thomp. & C. 43 ; 1 Hun, 614; Hays v. Ford, 56 Ind. 52. * Bohun V. Deleasert, 2 Coop. 21. CHAP. XIV.] PRESUMPTIONS : EEGULARITT. [§1304. sumed to have been duly authorized ;^ and where a writ is duly re- turned, it will be presumed that it was duly served ;^ though in all these cases the presumption is available simply for the purpose of throwing the burden on the party alleging defects in a record other- wise complete. It will be, to the same extent, inferred that where a parish deed of apprenticeship has been approved by the proper court, the proper statutory notices have been given ;' and that there have been due stamps.^ It should be remembered that the rebutta- bility of presumptions of this kind may be lost by delay in applying to the proper court for correction ; and after twenty years such pre- sumptions may be treated as irrebuttable." It is scarcely necessary here to repeat that judicial records are presumed to have been cor- rectly made.' When regular, they cannot, except in cases of fraud or non-jurisdiction, be collaterally impeached.' If erroneous, the court of the record must be applied to for relief.* The same pre- sumption of regularity applies to judicial proceedings of other states ;' and to inferior courts when jurisdiction appears on the record.'" § 1304. We must again recall the caution that the presumption before us goes simply to the burden of proof, and cannot, _ except in cases of ancient records, on principles to be defects „ cannot in hereafter discussed," supply the prooi oi averments neces- tws way be sary to make a record complete.'^ Hence the presump- ^^PP^'^"^- tion will not be allowed to operate so as to dispense with a check > Pedan v. Hopkins, 13 S. & R. 45. " Reed v. Jackson, 1 East, 355 ; ' Bastard c. Trntch, 3 A. & E. 451. Ramsbottom v. Buckhurst, 2 M. & Sel. 5 N. & M. 109; Bosworth v. Vande- 567, per Ld. EUenborough; llnst, 260; walker, 53 N. Y. 597 ; Fitler v. Patton, R. u. Carlisle, 2 B. & Ad. 367-369, per 8 W. & S. 455 ; Drake v. Duvenlok, 45 Lord Tenterden ; Boyd v. Wyley, 18 Cal. 455. Fed. Rep. 355 ; Leedom u. Lombaert, 3 R. 0. Whiston, 4 A. & E. 607 ; R. 80 Penn. St. 381 ; Coxe v. Derringer, V. Whitney, 5 A. & E. 191 ; 6 N. & M. 82 Penn. St. 236. 552. ' Supra, §§ 981, 982. * R. ... Long Buckley, 7 East, 45. » Supra, § 983. See R. V. Benson, 2 Camp. 508 ; Lee v. ' Ripple v. Ripple, 1 Rawle, 386 ; Johnstone, L. R. 1 H. L. Se. 426. As Morgan, w. Neville, 74 Penn. St. 176. to stamps generally, see infra, § 1313. " See infra, § 1308. 5 See Williams v. Eyton, 2 H. & N. " Infra, § 1347. 771 ; 5. C. 4 H. & N. 357 ; Society '" See supra, §§ 824, 830, 981 ; Mes- Prop. Gos. V. Young, 2 N. H. 310 ; singer v. Kintner, 4 Binn. 97 ; Walker Brown v. Wood, 17 Mass. 68. v. Jessup, 43 Ark. 163. VOL. II.— 31 481 ^ 1307.] THE LAW OF EVIDENCE. [BOOK III. specifically prescribed by statute ;' nor to cure process on its face defective f nor to confer jurisdiction on a court when the record itself shows that the proceedings were so irregular that the court had no jurisdiction.' § 1305. In matters in pais, the presumption of regularity is more liberally applied. Thus, after a verdict, a court in review necessary will assume that all facts necessary for the support of be pre- the verdict were proved, unless the contrary appear in sumed. ^^^q record duly before the court.'* It is also held that the notes taken by the judge at nisi prius will be so far assumed to be true, that no party is allowe(i to raise before the court in banc any question respecting the rejection of evidence at the trial, unless it appears from these notes that the evidence was formally tendered." § 1306. When a military court has jurisdiction, and its records, if open to revision, give an adequate narrative of its pro- military cedure, the burden is on the party assailing them to prove courts. irregularity.* It has been held that where a town was proved to be in the military occupation of an enemy, and proclama- tions, purporting to be signed by the general in command, were posted on its walls, the inference was proper that the placards had been posted by order of the commander.' § 1307. The law also assumes that proper official care keeping of is taken of public records and files. Hence from such recoi s. ^g^j,g regularity may be inferred.* 1 U. S. V. Jonas, 19 Wall. 598. Wagers v. Dickey, 17 Ohio, 439 ; Coil 2 Supra, § 795. v. Willis, 18 Ohio, 28. See, also, » Galpin v. Page, 18 Wall. 365 ; Com. Smith v. Keating, 6 Com. B. 163 ; Kid- V. Blood, 97 Mass. 538. Supra, § 804. gill v. Moor, 9 Com, B. 364 ; Dela- « Speers v. Parker, 1 T. R. 141 ; mere v. The Queen, 2 Law Rep. H. L. Jackson v. Pesked, 1 M. & Sel. 237, per 419 ; 36 L. J. Q. B. 313, in Dom. Proo. Lord EUenborougli ; Steph. PI. 162- S. C. So in Criminal cases. R. v. 164; Davis v. Black, 1 Q. B. 911, 912, Waters, 1 Den. C. C. 356 ; R. u. Bowen, per Ld. Denman, C. J., and Patteson, 13 Q. B. 790 ; Beale v. Com., 25 Penn. J. ; 1 G. & D. 482, S. C. ; Harris v. St. 11 ; Powell on App. Jur. 158. Goodwyn, 2 M. & Gr. 405 ; 2 Scott N. = Gibbs c-. Pike, 9 M. & W. 351 ; 1 R. 459 ; 9 Dowl. 409, S. C. ; Gold- Dowl. P. C. 409, cited in Taylor's Ev. thorpe u. Hardman, 13 M. & W. 377 ; § 78. Minor v. Bank, 1 Peters, 68 ; Pittsburgh ^ Slade v. Minor, 2 Cranch C. C. 139. R. R. !;. Ramsay, 22 Wall. 276 ; Dob- ' Bruce v. Nicolopulo, 11 Ex. R. 129. son V. Campbell, 1 Sumn. 319 ; Ad- « Reed v. Jackson, 1 East, 855 ; Hall dington v. Allen, 11 Wend. 375 ; v, Kellogg, 16 Mich. 135 ; Robinson v. 482 CHAP. XIV.] PRESUMPTIONS : REGULARITY. [§ 1309. § 1308. It is otherwise, so far as concerns jurisdiction, as to pro- ceedings before justices of the peace, and before courts ~ . , ,,..,..,.. ,. otherwise 01 special and limited jurisdiction, whatever may be their as to pie- grade.* As to such tribunals, the facts necessary to of'^udsdic- iurisdiction must be shown.'' But iustices of the peace, *i™ °^ J"^" •' ... r ' tices, and and other judicial ofEcers, though of special and limited special powers, will be presumed to have acted regularly, as to a matter within their jurisdiction, unless the record show to the contrary,* but jurisdiction must appear, and cannot be presumed.* And a warrant of conviction, purporting to be founded on a pre- ceding conviction, has been sustained in England, though it does not state that the evidence was given on oath, or in the presence of the prisoner.' § 1309. The legislature, whether federal or state, when acting within its constitutional range, is presumed to act in con- ^ . , ,. formity with law, whenever the contrary does not plainly proceed- and expressly appear.' Hence we must primd facie hold eumed to that the respective houses, as component parts of a legis- ^ '^^" ^'' lature, act within their jurisdiction, and agreeably to parliamentary usages and the rules of law and justice. It has therefore been held Snyder, 97 Ind. 56 ; Vandercook v. Baker, 48 Iowa, 199 ; DriscoU v. Smith, 59 Wis. 38 ; Davis v. Hudson, 29 Minn. 27 ; Weyand o. Stover, 35 Kan. 546 ; Seward v. Didier, 16 Neb. 58 ; Rice v. Cunningham, 29 Cal. 492. As to reg- ularity of recorded title, see Infra, § 1311. 1 R. V. Hulcott, 6 T. R. 583 ; R. u. Bloomsbury, 4 E. & B. 520 ; Carratt v. Morley, 1 Q. B. 18 ; R. v. Totness, 11 Q. B. 80 ; Day v. King, 5 A. & E. 369 ; Johnson v. Reid, 6 M. & W. 24 ; Jack- son !7. New Milford, 34 Conn. 266 ; Pelton V. Platner, 13 Ohio, 209 ; Mills V. Hamaker, 11 Iowa, 206 ; Kane v. Desmond, 63 Cal. 464. 2 R. V. All Saints, 7 B, & C. 790; Gossett V. Howard, 10 a. B. 452 ; R. v. Stainforth, 11 a. B. 66 ; R. v. Preston, 12 -Q. B. 816 ; R. v. Morris, 4 T. R. 552 ; Omerod v. Chadwick, 16 M. & W. 367 ; Goulding v. Clark, 34 N. H. 148 Graliam v. Whitely, 26 N. J. L. 254 State V. Hinohman, 27 Penn. St. 479 Swain v. Chase, 12 Cal. 283 ; Tompert u. Lithgow, 1 Bush, 176. '■> Supra, § 800a; Christie v. Unwin, 11 A. & E. 379 ; Clark, in re, 2 Q. B. 630 ; Chesterton v. Fairlar, 7 A. & E. 713 ; Halleck v. Cambridge, 1 Q. B. 593 ; State v. Hinohman, 27 Penn. St. 479 ; Davis v. State, 17 Ala. 354 ; Brown v. Connelly, 5 Blaokf. 390. * See cases cited supra at beginning of this section. 5 Bailey, ex parte, 3 E. & B. 607. 8 See Cochran v. Arnold, 58 Penn. St. 399 ; Garrett v. R. R., 78 Penn. St. 465; Wickham v. Page, 49 Mo. 526; Chicot County v. Davies, 40 Ark. 200 ; Sedgwick's Stat. Law, 228, n. ; Cooley's Const. Lim. 168, 172. Supra, §§ 980a, 1260. 483 § 1312.] THE LAW OF EVIDENCE. [book III. Regularity assumed as to proceed- ings of corpora- tions. that a warrant issued by the speaker of a legislative house, at the instance of the house, for the arrest of a witness, need not contain any recital of the grounds on which it was founded.^ § 1310. So far as concerns the burden of proof, when the record of a municipal or other corporation is put in evidence, and such record is complete, and is in conformity with law, the burden is on the party assailing it. The record is not presumed to be correct until it has been duly proved f but when it is so proved, and when by law it is evidence of the facts it narrates, then it is to be accepted as true until impeached.' When, however, a statute prescribes certain conditions as the prerequisites of corporate action, it must appear from the record that these conditions existed.^ § 1311. What has been said as to the records of corporations, when such records are kept in conformity with law, ap- utes of so- plies, though with diminishing force, to the minutes of cieties. societies," and to the entries made by deceased business men.* Supposing such papers and entries to be admissible in evi- dence, and to be regular on their face, the burden of proof is on the party attacking them. § 1312. We have already observed that dates stated in a docu- ment are true only primd facie, and may be disputed ferred to be ^^^'^ ^^ parties.' But, until disproved, such dates are correctly assumed to be correct. " This has been held to apply to letters,* bills of exchange and promissory notes,' and 1 Gossett V. Howard, 10 Q. B. 411, 455-459. As to public acts generally, see Ayoock v. R. R., 89 N. C. 321; Bowling V. Blackman, 70 Ala. 303 ; Ortis V. De Benevides, 61 Tex. 60. 2 Scbott V. People, 89 111. 195. 3 Supra, § 987 ; Grady's case, 1 De Gex, J. & S. 488 ; Lane's case, 1 De Gex, J. & S. 504 ; Muzzey v. White, 3 Greenl. 290 ; Copp v. Lamb, 13 Me. 312 ; Hathaway v. Addison, 48 Me. 440 ; Soo. Prop. Gos. V. Young, 2 N. H. 310; CoWeigh V. Young, 15 N. H. 403 ; West Springfield!). Root, 18 Pick. 318 ; Spurr V. Bartholomew, 2 Met. 479 ; Bassett «. Porter, 10 Cush. 418 ; Slate v. Lime, 484 23 Minn. 521 ; Endres v. Lloyd, 56 Ga. 692; Louisville v. Hyatt, 2 B. Men. 177; Wilson o. State, 16 Tex. Ap. 497 ; Bliss v. Canal Co., 65 Cal. 502. * Clark V. Wardwell, 55 Me. 61. 5 Supra, § 1131. 6 Supra, § 238. ' Supra, § 977. 8 Hunt V. Massey, 5 B. & Ad. 902 ; Goodtitle d. Baker v. Milburn, 2 M. & W. 853 ; Potez u. Glossop, 2 Exch. 191. See, however, the observations of Lord Wensleydale in Butler v. Jjord Mountgavrett, 7 Ho. Lo. Cas. 633, 646. ' Anderson ». Weston, 6 Bing. N. C. 296 ; Meadows v. Cozart, 76 N. C. 450. CHAP. XIV.] PRESUMPTIONS : REGULARITY. [§ 1313. the indorsements on them,' and also to bankers' checks.^ So, a deed is presumed to have been executed,' and delivered,* on the day it is dated ;" and so as to receipts.* "And where deeds bear date on the same day, a priority of execution will be presumed, to support the clear intention of parties f as, for instance, where property is sought to be conveyed by lease and release, both of which are contained in one deed, a priority of execution of the lease will be presumed.^ So, in construing a deed or will, priority or posteriority in the collocation of words will be disregarded, in order to carry into eifect the manifest intention of the parties."* § 1313. Documents, on their face solemnly executed, are pre- sumed to have been executed in conformity with the local j, ,.,. law of the place of execution, so far as to throw the bur- of docu- den of proving the contrary on the assailing party.* If eumed to secondary evidence be offered to prove the contents of a ® <=orrec . document, the inference, until the contrary is shown, is that the document was in due form,"* and was duly stamped,^' unless there is evidence that the document remained without stamp some time after the execution, in which case the onus is shifted, and lies upon the party who relies on the document.'^ It has been held by the Su- 1 Smith V. Battens, 1 Moo. & R. 341. RailwayCompany u.Fairclough, 2Maii. Supra, § 977. & G. 674 ; Clements u. Maoheboeuf, 92 2 Laws V. Rand, 3 0. B. N. S. 442. U. S. 4]8 ; Eoterts v. Pillow, 1 Hempst. ' Anderson v. Weston, 6 Bing. N. C. 624 ; Van Rensselaer v. Vickery, 3 Lan- 296, 300. sing, 57 ; Thayer v. Marsh, 18 N. Y. * Stone V. Grubbam, 1 Eol. 3, pi. 5 ; Sup. Ct. 501 ; Diehl v. Emig, 65 Penn. Oshey v. Hicks, Cro. Jac. 263 ; Best's St. 320 ; Hardin v. Crate, 78 111. 583 ; Ev. § 402. Pringle v. Dunn, 37 Wis. 449 ; State v. 5 Caldwell v. Gamble, 4 Watts, 292. Lawson, 14 Ark. 114 ; Sadler v. Ander- 6 Taylor d. Atkyns v. Horde, 1 Burr, son, 17 Tex. 245. Supra, § 739 a. As 106. limiting such presumptions, see Dunn ' Per North, C. J., in Barker v. v. Miller, 75 Mo. 260. As to alteration Keets, 1 Freem. 251. of document, see supra, §§ 629, 630. 8 Brice v. Smith, Willes, 1, and the "> Brown v. Bank, 3 Penn. St. 187. cases cited ; Richards v. Bluck, 6 C. B. " Hart v. Hart, 1 Hare, 1 ; Pooley v. B. 441. Supra, § 979 ; Best's Ev. Goodwin, 4 A. & E. 94 ; R. v. Long § 364. Buckley, 7 East, 65 ; Closmadeno u, ' R. V. Gray, 10 B. & C. 807 ; R. v. Carrel, 18 C. B. 36. Supra, §§ 697-9, Ashburton, 8 Q. B. 876 ; R. v. Whis- and cases cited supra, § 1303. ton, 4 A. & E. 667 ; Doe d. Griffin u. ^ Marine Investment Co. v. Haviside, Mason, 3 Camp. 7 ; Davis v. Gaines, L. R. 5 E. & I. App. 624 ; 42 L. J. 104 D. S. 386. See, also. Doe d. Lewis Chan. 173 ; Powell's Evidence, 4th ed. V. Bingham, 4 B. & A. 672 ; Brighton 83. 485 § 1314.] THE LAW OP EVIDENCE. [BOOK III. preme Court of the United States, where an executor's deed recited that the sale was made " after the publications prescribed by law," and his account in the probate court showed that he had paid for advertising the sale, that after sixty years' possession the deed and account were competent evidence of the advertisement.* So when an incorporated land company makes a partition of its lands, it will be presumed, after twenty years, that there was a due notification to parties of its procedure, and that its acts were regular.^ As already seen, proof of continued possession under a deed thirty years old will enable the possessor to dispense with proof of execution.' A foreign notary will be presumed to have addressed a notice of non-payment, proved to have been posted, in the right way.* When the place of execution of a document is in a foreign coun- try, the way in which the execution is to be proved must be deter- mined by the rules of private international law. § 1814. Generally, if a contract is on its face regularly executed, the burden of proof is on those who assail such regularity.* Thus, where certain formalities are requisite to the validity of an act done by a joint-stock company, as to which act there is evidence showing acquiescence by the stockholders, a compliance with these formali- ties will be primd facie inferred.' Sealing (although there be no impressions of a seal) and delivery also may be inferred as a pre- sumption of fact, from attestation and signature, when accompanied by transfer of possession.' It will also be presumed that attesting 1 Davis V. Gaines, 104 U. S. 386. Bingham, 4 B. & A. 672 ; Cherry v. 2 Freeman v. Thayer, 33 Me. 76 ; Heming, 4 Ex. R. 633 ; Fogg «. Moul- Munroe v. Gates, 48 Me. 463 ; Society ton, 59 N. H. 499 ; Horau v. Weiler, o. Young, 2 N. H. 310; Freeholders u. 41 Penn. St. 470; Sutphen v. Cush- State, 4 Zahr. 718. See infra, § 1347 ; man, 35 111. 186 ; Thayer v. Barney, 12 Stevens v. Taft, 3 Gray, 487 ; Russell Minn. 502 ; Smith v. Jordan, 13 Minn. V. Marks, 3 Meto. (Ky.) 37. 264. See Whart. on Contracts, § 681. As to curing by time of imperfections « Grady's case, 1 De Gex, J. & S. in old documents, see Pells D.Welquish, 504; British Prov. Ass. Co., in re, 1 129 Mass. 469 ; supra, §§ 194-5, 703, De Gex, J. & S. 488. '^^^- ' Fassett v. Brown, Pea. R. 23; Tal ' Supra, §§ 134, 135 et seq.; and see bot v. Hodgson, 7 Taunt. 251 ; Doe v further supra, §§ 703, 733 and cases Lewis, 6 M. & Gr. 386 ; 10 CL & F. 346 cited infra, § 1314. Hall v. Bainbridge, 12 Q. B. 699, 710 * McGarr v. Lloyd, 3 Penn. St. 474. Sandilands, in re, L. R. 6 C. P. 411 5 Doe V. Mason, 3 Camp. 7 ; Doe v. Ward v. Lewis, 4 Pick. 518 ; Vernol v 486 CHAP. XIV.] PRESUMPTIONS : REGULARITY. [§ 1315. witnesses really and regularly witnessed the execution When exe- r , 1 ,.,,.. cution of 01 the document to which their signatures are attached.' document Missing links, also, as we will presently see, may be pre- /S™ sumed, especially when these links are the formal exe- shown, bur- cution, by trustees or agents, of powers conferred on assailant, them, and when the presumption is in aid of continuous possession.^ § 1315. It is a presumption of fact, varying in intensity with the circumstances, that a person acting as a public offi- cer is authorized to act as such. The presumption may be agent pre" very weak, as where a mere intruder, whose want of ^umed to •' . ' _ _ ' be rega- authority ordinary penetration would discover, usurps lariy ap- an office ; or it may be very strong, as where a person, honestly believing himself to be appointed, is honestly accepted by Vernol, 63 N. Y. 45. As to what con- stitutes a seal, see supra, § 692 ; Whart. on Cont. § 681. In Cherry v. Heming, 4 Exoh. R. 633, an action of covenant was brought by the assignor against the assignees of certain letters patent to recover the con- sideration money for the assignment, and one of the defendants named Hem- ing pleaded non est factum. At the trial Heming produced the deed, which was signed and executed by all the parties to it except himself; but, although a seal had been placed for him in the usual way, his signature was not at- tached, neither was there any attesting witness to his execution. As, however, he had acted under the deed, and rec- ognized it as a valid instrument, the jury presumed, with the approbation of the court, that he had duly executed it. Taylor's Ev. § 128. 1 See supra, § 739. That parol evidence may prove de- livery, see supra, §§ 930, 1016. 2 Infra, §§ 1347-57 ; Robins v. Bel- las, 4 Watts, 255 ; Warner v. Henby, 48 Penn. St. 187. ' ' The maxim. Omnia praesumuntur rite esse acta, is applied by the courts to the execution both of deeds and wills. Where all the witnesses are dead, and the handwriting of one of them is proved, the statement in the attes- tation clause will be presumed to be correct. Adam v. Kerr, 1 B. & P. 360 ; Andrews v. Mottley, 12 C. B. N. S. 526. The court of probate goes further than this, and presumes that all formalities have been complied with in respect of a will when the attestation clause is in the usual form. Vinnicombe v. Butler, 3 S. & T. 580. When there is no attestation clause, or when it is not in the usual form, the courts of common law will, it seems, presume compliance with all formalities in re- spect of a will ; Spilsburg u. Burdett, 10 CI. & F. 840 ; and the tendency of the court of probate will be to give ef- fect to the testator's intentions. In the Goods of Rees, 34 L. J. P. M. & A. 56. Of course, the evidence of attest- ing witnesses may rebut the presump- tion of due execution. Croft v. Croft, 34 L. J. P. M. & A. 44 ; 13 W. R. 526. But when a will appears on the face of it to have been duly attested, and sur- rounding circumstances imply that this was so, the contrary evidence of one at- testing witness will not rebut the pre- sumption of due execution. Wright v. Rogers, 17 W. R. 833." Powell's Ev. 83. 487 § 1315.J THE LAW OF EVIDENCE. [book III. the body of those with whom he acts. The presumption cannot be called a presumption of law, for it lacks one of the essential inci- dents of a presumption of law, i. e., universal equality of applica- tion to all cases ; and it is to be regarded simply as one of those presumptions of fact which determine the burden of proof. In this sense we are to hold that a person acting as a public or quasi public officer is to be so far recognized as such that his appointment is to be treated as regular until the contrary be proved.' As officers, in the sense above stated, have been regarded trustees under a turn- pike act ;" guardians of minors ;* justices of the peace ;* soldiers engaged in recruiting ;' constables and policemen ;^ weigh-masters of particular markets ;' attorneys f post-officers and their employes,' and masters in chancery and commissioners.'" Even when a party is indicted for misconduct in office, it is sufficient, primd facie, to show that he acted in the particular office in which the misconduct J R. o. Verelst, 3 Camp. 432 ; Monke V. Butler, 1 RoUe R. 83 ; Riley v. Pack- ington, L. R. 2 C. P. 53; Butler v. Hunter, 7 H. & N. 826 ; Marshall t. Lara, 5 Q. B. 115 ; Bowley v. Barnes, 8 Q. B. 1037 ; R. v. Gordon, 2 Leach C. C. 581 ; Berryman u. Wise, 4 T. R. 366 ; Doe v. Brown, 5 B. & A. 243; R. V. Howard, 1 M. & Rob. 188 ; McGahey V. Alston, 2 M. & W. 188 ; Faulkner v. Johnson, 11 M. & W. 581 ; R. v. Rob- erts, 38 L. T. 690 ; Bank U. S. v. Dan- dridge, 12 Wheat. 70 ; Minor v. Tillot- son, 7 Pet. 100; Sheetz v. Selden, 2 Wallace, 177 ; Mech. Bank u. Union Bank, 22 Wall. 276 ; Jacob v. U. S., 1 Brock. 520 ; Hutching v. Van Bokkelen, 34 Me. 126; Cabot v. Given, 45 Me. 144 ; Jay v. Carthage, 48 Me. 353 ; State V. Roberts, 52 N. H. 492 ; Briggs ./ ./ .... party is assumed to have read a paper to which his name is signed,' and this inference distinctively applies to officers in banks.* Where, also, a partnership is found to exist between two persons, but there is no evidence to show in what proportions they are interested, it is to be assumed that they are interested in equal moieties.' We infer, in the same way, that bills of exchange and promissory notes are given for a sufficient consideration.* Indorse- ments, also, are inferred to have been made in due time.' And a bill of exchange, in the absence of proof to the contrary, is in- ferred to have been accepted within a reasonable time after its date, and before it came to maturity.' A seal, also, attached to a bond, will be presumed to be the proper seal of the party.' But this presumption is to be limited to the regularity of the act.'" § 1320 a. On the same principle, if a party should present a N n exist claim, of old date, to a solvent person, the fact that the encetobe claim had lain dormant for years subjects it to much inf6rr6cL from nou- prejudice." The presumption, however, is open to be re- c aimer. butted by proof of the intermediate insolvency of the Aspinwall, 43 111. 401 ; DoUarhide v. Muscatine Co., 1 Greene (Iowa), 158; Guy V. Washburn, 23 Cal. Ill ; Hick- man V. Boffman, Hard. (Ky.) 348 ; El- lis V. Carr, 1 Bush, 627 ; Phelps v. Eatoliffe, 3 Bush, 334; Dawkins v. Smith, 1 Hill (S. C.) Ch. 369 ; Jones V. Muisbach, 26 Tex. 235. 1 Supra, §§ 1243, 1301. 2 See Clark v. Carey, 63 Ind. 105. " Hartford Ins. Co. v. Gray, 80 111. 28. Supra, § 1243, for other cases. ' Knickerbocker Ins. Co. u. Pendle- ton, 115 U. S. 339. " Farrar v. Beswick, 1 Moo. & R. 527, per Parke, B. 6 Supra, § 1301 ; Byles on Bills (8th ed.), 2, 108. '' Garland v. Jaoomb, L. Q. 8 Ex. 494 216; Batch v. Ornon, 4 Cash. 559; supra, § 1301. 8 Roberts v. Bethell, 12 C. B. 778. For other instances generally of such inferences, see supra, § 1301 ; Carter v. Abbott, 1 B. & C. 444; Houghton v. Gilbart, 7 C. & P. 701 ; Leuckart v. Cooper, 7 C. & P. 119; Cunningham v, Fonblanque, 6 C. & P. 44; Leland o. Farnham, 25 Vt. 553 ; Best's Ev. § 404. 9 Mills V. Machine Co., 79 111. 450. Supra, § 694. i» Lookhart v. Bell, 90 N. C. 499. " T. V. D., L. R. 1 P. & D. 27 ; Sib- bering v. Baloarres, 3 De Gex & Sm, 735 ; Taylor's Ev. § 121, citing Birch, in re, 17 Beav. 358. See H., falsely called C, v. C, 31 L. J. Pr. & Mat. 103. CHAP. XIV.] PRESUMPTIONS : BUSINESS REGULAKITT. [§ 1323. debtor, or of other grounds for the suspension of the debt. The reasoning is, that a claim which a party does not undertake to realize, he discredits. On the same reasoning, the fact that a patent lies dormant for years affords an inference of its inutility.* And a settlement of a counter-claim may be inferred from the giving an obligation for a sum materially less than due on the face of the account.^ § 1821. When services are accepted, the ordinary inference is that the party accepting has agreed to pay for them.* But this presumption varies with circumstances, and to^pay'to" when the services are rendered by one member of 5^ inferred •' _ from ac- a family to another, no such presumption can be ceptance of ^ • services. drawn.* § 1822. If a business man forwards goods to another, either for the latter's use, or for sale, the delivery and acceptance of the goods presume an agreement to purchase ;* if a ^1"^^ '™' servant is hired, it is presumed to be for the usual period agree- .... . . -11 meuts. or service ;" when marriage is promised, the engagement will be presumed to be to marry within a reasonable time.^ § 1823. The posting a letter, either in the proper place of deposit or by delivery to a postman, such letter being properly p. addressed and stamped, to a person known to be doing letter business in a place where there is established a regular proof df delivery of letters, is primd facie proof of the reception ^ i^e^y. of the letter by the person to whom it is addressed.' Such proof, ' Bakewell's Patent, in re, 15 Moo. P. (Am. ed.) 132-4, and cases there cited ; C. 385 ; Allen's Patent, in re, L.R.I 1 Wait's Actions, 99 ; Barr v. Williams, P. C. 507 ; S. C. 4 Moo. P. C. N. S. 23 Ark. 244. 443. 6 Best's Ev. § 400. ' Crist V. Garner, 2 Pen. & W. 251. ' Phillips v. Crutchley, 3 C. & P. 78 ; 3 See 1 Broom and Hadley's Com. 1 Moore & P. 239. (Am. ed.) 132-4; Whart. on Agency, ^ Saunderson v. Judge, 2 H. BI. 609 ; §323; 1 Wait's Actions, 99 ; Smith u. R. o. Johnson, 7 East, 65; Kufh «. Thompson, 8 C. B. 44 ; Scott, in re, 1 Weston, 3 Esp. 54 ; Warren v. Warren, Redf. (N. Y.) 234. 1 C. M. & R. 250 ; Stooken v. Collin, 7 * See Wharton on Agency, § 324, and M. & W. 515 ; Woodcock v. Houlds- cases there cited; and see Wilcox v. worth, 16 M. & W. 124; Shipley v. Wilcox, 48 Barb. 327 ; Gallagher v. Todhunter, 7 C. & P. 630 ; Skilbeok o. Vought, 8 Hun, 87 ; King v. Kelly, 28 Garbett, 7 Q. B. 846 (a case of delivery Ind. 89. to a postman) ; Dunlap v. Higgins, 1 H. 5 See 1 Broom and Hadley's Com. of L. Cas. 381 ; Lindenberger v. Beal, 6 495 § 1323.] THE LAW OF EVIDENCE. [book III. however, is open to rebuttal, and ultimately the question of delivery will be decided on all the circumstances of the case.^ In cases of letters in well-organized postal routes, where business men are the sendees, the presumption is strong ;"* in cases of letters where there is no mail delivery, or where the sendee has no settled business ad- dress, there is no presumption at all,^ and delivery must be substan- tively proved.^ The rule as to letters, however, applies only to Wheat. 104 ; Rosenthal v. Walker, 111 U. S. 184; Oakes v. Waller, 13 Vt. 63 ; Connecticut i>. Bradish, 14 Mass. 296 ; New Haven Bank v. Mitchell, 15 Conn. 200 ; Oregon St. Co. u. Otis, 100 N. Y. 446 ; Russell v. Beckley, 4 R. I. 525 ; Thallliimer v. Brinckerhofif, 6 Cow. 90 ; Austin o. Hartwig, 49 N. Y. Sup. Ct. 256 ; Starr u. Torrey, 22 N. J. L. (2 Zah.) 190 ; Callan v. Gaylord, 3 Watts, 321 ; Tanner i,. Hughes, 53 Penn. St. 239 ; Shoemaker v. Bank, 59 Penn. St. 79; Plath u. Ins. Co., 23 Minn. 479; Sullivan v. Kuykendall, 82 Ky. 483; Breed v. Bank, 6 Col. 235. In England this presumption has been adopted Toy the legislature in many acts of Parliament, but with this difference, that no rebutting evidence is admissible, and therefore the pre- sumption is conclusive. Powell's Ev. 4th ed. 86. For decisions on these statutes, see Bishop v. Helps, 2 C. B. 45 ; Bayley u. Nantwich, 2 C. B. 118. That posting of a letter accepting a contract is sufficient proof of the com- pletion of the contract, see Household Fire Insurance Company v. Grant, 4 Ex. D. 216 ; 48 L. J. Ex. 577 ; C. A. S. P. Imperial Land Company, in re, 7 L. R. Ch. 587; overruling Brit. & Am. Tel. Co. V. golson, L. R. 6 Eq. 108. See these and other cases discussed at large in Whart. on Contracts, § 18. "The rule is well settled that if a letter properly directed is proved to have been either put in the post-office or delivered to the postman, it is pre- sumed, from the ordinary course of 496 business in the post-office department, that it reached its destination at the regular time, and was received by the person to whom it was addressed." Woods, J., Rosenthal v. Walker, 111 Ui S. 193, citing, among other cases, Huntley v. Whittier, 105 Mass. 391. According to Sir J. Stephen (Evidence, art. 13), the facts that the letter " was posted in due course, properly ad- dressed, and was not returned through the dead-letter office," are deemed to be rele- vant ; but this qualification in italics is not given in the American cases. 1 Ibid. ; Reidpath's case, 40 L. J. Ch. 39 ; U. S. V. Babcock, 3 Dillon C. C. 571 ; Freeman v. Morey, 45 Me. 50 ; Greenfield Bank v. Crafts, 4 Allen, 447 ; Huntley v. Whittier, 105 Mass. 391 ; Austin V. Holland, 69 N. Y. 571 ; First Nat. Bank u. McManigle, 69 Penn. St. 156 ; Susquehanna Ins. Co. o. Toy Co., 97 Penn. St. 424 ; Foster i-. Leeper, 29 Ga. 294. See Tate v. Sullivan, 30 Md. 464 ; Lyons v. Guild, 5 Heisk. 175. 2 Best's Ev. § 403. 3 Freeman v. Morey, 45 Me. 50 ; First Nat. Bk. c. McManigle, 69 Penn. St. 156 ; Bilbgerry v. Branch, 19 Grat. 393 ; James v. Wade, 21 La. An. 548. i II There is no presumption of law that a letter, mailed to one at the place he usually receives his letters, was re- ceived by him. A strong probability of its receipt may arise, as was said in Tanner v. Hughes, 3 P. F. Smith, 289, and the fact of its deposit in the mail- bag, in connection with other circum- stances, may be sufficient to warrant CHAP. XIV.] PRESUMPTIONS: DELIVERY OF LETTERS. [§1323. letters posted at points other than that at which the party written to resides. Notices of local transactions, to persons living in the same place as that from which the notice is issued, should, when such is the usage, be served personally ;* though when the custom is to send such notices by post, and where the custom is reasonable, from the distances at which parties live, and the greater economy and accuracy of mail delivery, this limitation cannot apply. ^ It is generally held that, when the party resides in another town, notice by the post-office is sufficient,' and may in some cases bind, even though not received.* To enable the presumption to operate it the court in referring the question of its receipt to the determination of the jury." Williams, J., First Nat. Bank of Bellefonte v. McManigle, 69 Penn. St. 159. " Upon the subject of the admissi- bility of letters, by one person ad- dressed to another, by name, at his known post-office address, prepaid, and actually deposited in the post-office, we concur, both of us, in the conclusion, adopting the language of Chief Justice Bigelow, in Comm. v. Jeffries, 7 Allen, 563, that this 'is evidence tending to show that such letters reached their destination, and were received by the persons to whom they were addressed.' This is not a conclusiTe presumption ; and it does not even create a legal pre- sumption that such letters were actu- ally received ; it is evidence, if credited by the jury, to show the receipt of snch letters. 'A fact,' says Agnew, J., Tanner o. Hughes, 53 Penn. St. 290, ' in connection with other circum- stances, to be referred to the jury,' under appropriate instruction, as its value will depend upon all the circum- stances of the particular case." Dil- lon, Circuit Judge, United States v. Babcock, 3 Dillon's C. C. R. 573. In Huntley v. Whittier, 105 Mass. 391, it was ruled that the posting a letter ad- dressed to a merchant at his place of business is primd facie proof that he VOL. II. — 32 received it in due course of mail, but only when there is no other evidence. See Briggs v. Harvey, 130 Mass. 187. In Hedden v. Roberts, 134 Mass. 38, where the issue was whether the plain- tiff sent a bill of the goods by mail to the defendant, and the defendant re- ceived it, evidence was held admissible that upon the envelope containing the bill was printed a request for a return of the letter to the post-office address of the plaintiff, if not called for iu ten days, and that it was not returned to him. Hedden w. Roberts, 134 Mass. 38. 1 Shelburne Bank v. Townsley, 102 Mass. 177 ; Ransom u. Mack, 2 Hill, 587 ; Sheldon v. Benham, 4 Hill, 129. 2 See reasoning of court in Shelburne Bank v. Townsley, supra, citing Pierce u. Pendar, 5 Met. 352 ; Chit. Bills (12th Am. ed.), 473, and see, also, Cabot Bank V. Russell, 4 Gray, 169; Manchester Bk. V. White, 30 N. H. 456. ' Ibid. ; Munn o. Baldwin', 6 Mass. 316. * Shed V. Brett, 1 Pick. 401. "In this case the transaction occurred in New York, and not in Bnckland, where the defendants resided. The letter, however, in which the plaintiffs under- took to give the notice, was addressed to the defendant, not at Buokland, but at Shelburne Falls, and the report shows that he was in the habit of re- ceiving letters at the post-offices of these 497 § 1324] THE LAW OF EVIDENCE. [book III. is essential that the letter should he addressed with specific cor- rectness. Thus, it has heen held that no presumption of delivery attached to a letter addressed, " Mr. Haynes, Bristol,"^ though the burden, when the posting of a letter to a particular person is shown, is on the party impeaching the completeness of the address.'' Such letters may be evidence of the dishonor of commercial paper, and, coupled with proof that they were not returned from the dead- letter office, may be received as giving notice of the dissolution of a partnership.^ How far this inference from regularity applies to telegraphic dispatches will be presently noticed ;* though ordinarily the original message should be produced.* § 1324. A letter, duly stamped and posted, is inferred by a presumption of fact, to be delivered at the usual time for such delivery.' Letter pre- sumed to arrive at usual time of delivery, two places respectively, and about as often at one as at the other. The ques- tion as to the proper mode of notifying a man by mail depends much less on the place of his exact legal domicile than upon the locality of the post-office at which he usually receives his letters ; and if he is in the habit of resorting for that purpose equally and indiffer- ently to two post-offices, a communica- tion may very properly be addressed to him at either. United States Bank u. Carneal, 2 Pet. 543 ; Story on Notes, § 343. The plaintiffs appear to have put him on the same footing, for the purpose of post-office communication, as if he were a resident of Shelburne Falls. The letter was left at the post- office, not for the purpose of being transmitted by mail to any other town or post-office, and not to go into the hands of any official carrier charged with the distribution of letters at the dwelling-houses and places of business of inhabitants of the vicinity ; on the contrary, it did not go into the mail at all, but was simply deposited at the Shelburne Falls post-office, to remain there until call ed for by the defendant. ' ' Shelburne Bk. v. Townsley, 102 Mass. 177, Ames, J. 498 1 Walter v. Haynes, Ey. & M. 149. And see, as narrowing the rule, Allen V. Blunt, 2 Woodb. & M. 121. See Phillips V. Scott, 43 Mo. 86. 2 McGarr u. Lloyd, 3 Penu. St. 474. ' Kenney v. Altvater, 77 Penn. St. 34. See Wilcoxen v. Bohauan, 53 Ga. 219. < Infra, § 1329. Com. o. .Teffries, 7 Allen, 548 ; U. S. v. Babeock, 3 Dillon, 571. 6 Howley v. Whipple, 48 N. H. 487 ; cited at large supra, § 76. 8 The law on this point is thus well stated by Mr. Powell (Evidence, 4th ed. 81) : "A letter is presumed to have arrived at its destination at the time at which it would be delivered in the ordinary course of postal business, and the sender is never held answerable for any delay which occurs in its trans- mission through the post. Stooken ». Collin, 7 M. & W. 515. So that where any notice has to be given on a partic- ular day, it is sufficient to post it so that it would, in the ordinary course, arrive at its destination on that day, and if it is delayed in the post, the sender is not responsible for the delay. Ward V. Lord Londesborough, 12 C. B. 252. This is important in reference to notices to quit and notices of dishonor. CHAP. XIV.] PEBSUMPTIONS : DELIVERY OE LETTERS. [§ 1326. § 1325. The post-mark on a letter, if decipherable, raises a pre- sumption that the letter was in the post at the time and p place specified in such postmark, but this again is a re- prime, fade buttable presumption.* The presumption is not rebutted, however, by showing that other envelopes not posted have been stamped with a given post-mark." The post-mark, however, is not, it is said, evidence of the date of forwarding.' § 1326. If a servant or clerk is permitted by his master to act as such, then whenever a letter, whether sent by post or by hand, is proved to have been correctly addressed and J^rvanUs" delivered to the clerk or servant of the person to whom delivery to , , . maBter. it was addressed, it will be presumed that it came into his hands, although this presumption can be rebutted.^ Where no- tices to quit are delivered to a servant at the house occupied by the tenant, this presumption has been applied." So where a letter is put in a box from which it is an invariable practice of a letter-car- rier to take letters at fixed periods, posting will be presumed.* Here we may allude to the rule laid down by the House of Lords in Dunlop V. Higgins, 1 H. L. Cas. 381, that a contract to buy goods entered into by letter is complete when the letter of acceptance is posted ; and the rule was held to be the same in the case of a contract to take shares, by the Court of Appeal in Chancery in Harris's case, 20 W. R. 690 ; 41 L. J. Ch. 621 ; L. R. 7 Ch. 587. But the Court of Exchequer, in The British & American Telegraph Co. V. Colson, L. R.'e Ex. 108; 40 L. J. Ex. 97, held that if the letter of allotment is not received there is no contract; and in Reidpath's case, 19 W. R. 219 ; L. R. 11 Eq. 86 ; 40 L. J. Ch. 39, Lord Romilly held that it was necessary to prove receipt by the allot- tee when denied. Lord Justice Mellish, in Harris's case, said that he had great difficulty in reconciling The British & American Telegraph Co. v. Colson with the decision in Dunlop i>. Higgins, and Vice-Chancellor Malins followed suit in Wall's case, L. R. 15 Eq. 20 ; 42 L. J. Ch. 372. Although the decisions in The British & American Telegraph Co. V. Colson and Reidpath's case have not been overruled, they would appear to be unsound ; for if a contract is com- plete when a letter of acceptance is posted, how can it possibly become subsequently incomplete because that letter is not received ?" 1 Powell's Evidence, 4th ed. 88 ; R. V. Johnson, 7 East, 65 ; Fletcher v. Braddyl, 3 Stark. R. 64 ; R. u.Watson, 1 Campb. 315 ; Arohangelo v. Thompson, 2 Camp. 623 ; Shipley v. Todhunter, 7 C. & P. 680 ; Stocken v. Collen, 7 M. & W. 515 ; Butler v. Mountgarrett, 7 H. of L. Cas. 633; S. C. Jr. Law R. (N. S.) 77 ; New Haven Bk. v. Mitchell, 15 Conn. 206 ; Callan v. Gaylord, 3 Watts, 321. 2 U. S. V. Noelke, 17 Blatchf. C. Ct. 554. 8 Shelburne Bk. v. Townsley, 102 Mass. 177. * Macgregor v. Kelly, 3 Ex. 794. 5 Tanham v. Nicholson, L. R. 5 H. L. 561. , 6 Skilbeok v. Garbett, 7 Q. B. N. S. 846. 499 § 1330.] THE LAW OP EVIDENCE. [BOOK III. Letters sent by carrier presumed to have been re- ceived. § 1327. The principle before us, based as it is on the assumption that as absolute certainty in such proof cannot be ob- tained, it is enough, in order to make out a primd facie case, to show that a letter is forwarded in a way by which letters are usually received, applies to other than post-oiBce delivery.^ Hence, where it was proved to be the usage of a hotel for letters addressed to guests to be deposited in an urn at the bar, and then to be sent, about every fifteen minutes, to the rooms of the guests to whom such letters were addressed, it was held to be a presumption of fact that a letter addressed to one of the guests, and left at the bar, was received by such guest.'' In case of a denial, by the party addressed, of re- ception, then the case goes to the jury as a question of fact. § 1328. If I should mail a letter to B., addressing him at his resi- dence, and I should receive by mail an answer purporting to come from B. ,the fact that such an answer is so received makes a primd facie case in favor of the genuineness of the answer. The subalterns of the post-oflSce are govern- ment ofiicials, whose action is presumed to be regular ; and if I can prove that B. lived at the place where he was addressed, then the burden is on him to show that he did not receive the letter, and that the reply mailed in response was not genuine.' § 1329. The presumption of due delivery of telegraphic messages, applicable to letters, is applicable in a less degree, de- termined by all the circumstances of the case, to tele- graphic dispatches.* Testimony by a clerk that it was his invariable custom to carry certain classes of letter to the post-office, of which class the letter in question was one, though he had no recollection as to such letter specifically, has been held sufficient to let a copy of the letter in evidence, after Letter in answer to one mailed to the writer pre- Bumerl to be genuine. Tele- grams. § 1330. Presump- tion from habits of forward- ing letters, " See cases cited supra, § 1323 ; New Haven Bk. v. Mitchell, 15 Conn. 206. See Crandall v. Clark, 7 Barb. 169. 2 Dana v. Kemble, 19 Pick. 112. ' Connecticut v. Bradish, 14 Mass. 296 ; Chaffee u. Taylor, 3 Allen, 598 ; Johnson i>. Davenier, 19 Johns. 134. * Supra, § 76 ; jHray on Telegraphs, § 136; U. S. i ft' whole against a possession which tor the rest oi the time was P'"°''- absolute.2 § 1836. What has been said as to realty applies necessarily to personalty.^ A striking illustration of this principle is mavlnfer" *° ^^ found in the rulings that ordinarily the possession title as to of a negotiable promissory note, indorsed in blank, is personalty; , ■ ■, r , ■ such evidence of ownership as to sustain a suit.' The possession of negotiable paper under such circumstances, however, is not evidence of money lent," nor can a loan be presumed from the handling of securities from one party to another, but rather the payment of a prior debt.^ Property, also, is presumed to be in the consignee named in a bill of lading.' Vessels are subject to the same presumption.' Possession, therefore, of a ship, under a bill of sale which is void vessels? ^°^ non-compliance with a registry statute, enables a plaintiff to support an action for trover against a stranger for converting a part of the ship.» In fine, it may be generally held that a mere naked possession, when on its face fair, will en- title a party to maintain trespass, or even trover, as against a wrong-doer.'" Dame v. Dame, 20 N. H. 28 ; Colvin v. 78 ; 1 Hun, 557 ; Rubey v. Culbertson, Warford, 20 Md. 357 ; Field v. Brown, 35 Iowa, 264 ; Penu .. Edwards, 50 24 Grat. 96 ; Sparks v. Rawls, 17 Ala. Ala. 63. See fully for other cases, in- 211 ; Nieto v. Carpenter, 21 Cal. 455. fra, §§ 1362, 1363. 1 Magee v. Scott, 9 Cush. 148 ; Nieto < Fesenmayer v. Adcook, 16 M. & W. V. Carpenter, 21 Cal. 455. 449. See Gerding v. Walker, 29 Mo. 2 Glass V. Gilbert, 58 Penn. St. 266. 426. » Elliott V. Kemp, 7 M. & W. 312; 6 Aubert v. "Wash, 4 Taunt. 293; Millay v. Butts, 35 Me. 139 ; Cambridge Boswell v. Smith, 6 C. & P. 60. But V. Lexington, 17 Pick. 222. see infra, § 1337. * Shepherd v. Currie, 1 Stark. 454 ; ' Lawrence v. Miuturn, 17 How. 100. Alford V. Baker, 9 Wend. 323 ; Wiokes « Stacy v. Graham, 3 Duer, 444 ; V. Adirondack Co., 4 Thomp. & C. 250 ; Bailey v. New World, 2 Cal. 370. Weiduer ;.. Schweigart, 9 S. & R. 385 ; 9 Sutton v. Buck, 2 Taunt. 302. Zeigler v. Gray, 12 S. & R. 42 ; Union ^ Jeffries v. Great West. Rail. Co., 5 Canal v. Lloyd, 4 Watts & S. 393. See E. & B. 802. See Sutton v. Buck, 2 Crandall v. Sohroeppel, 4 Thomp. & C. Taunt. 309 ; Pitzpatrick a. Dunphey, 504 CHAP. XIV.] PRESUMPTIONS: TITLE. t§ 1338. Possession, also, will be sufficient evidence of title in an action on a marine policy of insurance ; and the fact of possession will sustain a recovery until the defendant produces conflicting evidence. ' § 1337. Even though there be no ear-marks or links associating the holder with the document, such holder, by the fact -^ , , , of producing a document, presents primd facie evidence er of pape* for a jury in support of his claim.'' We have an illus- presump- tration of this in an English case, in which it was held '°"' that the production by a plaintiiF of an I U signed by the defen- dant, though not addressed to any one by name, is, in general, evi- dence of an account stated between the parties.* It was held, how- ever, that such evidence may be rebutted by showing that the writing was not given in acknowledgment of a debt due.^ § 1338. Lord Plunkett, in a famous metaphor, has expressed a truth in this relation which has been frequently repeated by other courts, if not with the same felicity of expres- 'Policy of sion, at least with equal emphasis. " If Time, said favorable Lord Plunkett, in words afterwards adopted by Lord sump«ons Brougham, " destroys the evidence of title, the laws have oTume^^^ wisely and humanely made length of possession a substi- tute for that which has been destroyed. He comes with his scythe in one hand to mow down the muniments of our rights ; but' in his other hand the lawgiver has placed an hour-glass, by which he metes out incessantly those portions of duration which render needless the evidence that he has swept away."* The weight to be attached to Irish L. E. 1 N. S. 366 ; Viner v. Baker, 53 Me. 923 ; Magee v. Scott, 9 Cash. 150. ' Robertson v. French, 4 East, 130, 137 ; Sutton v. Back, 2 Taunt. 302. See Thomas v. Foyle, 5 Esp. 88, per Lord Ellenhorough. ' Fesenmayer v. Adcock, 16 M. & W. 449, per Pollock, C. B. ' Fesenmayer v. Adoook, 16 M. & W. 449, qualifying Douglass u. Holme, 12 A. & E. 691 ; Curtis v. Rickards, 1 M. & Gr. 47; Jacobs u. Fisher, 1 C. B. 178 ; Wilson v. Wilson, 14 C. B. 606. * Lemere v. Elliott, 30 L. J. Ex. 350 ; 6 H. & N. 656, -S. C. ; Croker v. Walsh, 2 Ir. Law Rep. (N. S.) 552 ; Wilson v. Wilson, 14 Com. B. 616, 626. ^ See "Statesmen of the Time oi George III.," by Ld. Brougham (3 ed.), p. 227, n. The above passage has been variously rendered in different publi- cations. In the case of Malone o. O'Connor, Napier, Ch., cited it as fol- lows : " Time, with the one hand, mows down the muniments of our titles ; with the other, he metes out the por- tions of duration which render these muniments no longer necessary." Drury's Cas. in Ch. temp. Napier, 944. This version is probably more accurate than any other, as it was furnished to 505 § 1338.J THE LAW OF EVIDENCE. [BOOK III. presumptions of this class, as dispensers of security and enhancers of value, has been recognized by a series of eminent Pennsylvania judges. "Now, when we add to these considerations and pre- cedents," says Agnew, C. J., in 1875, " the weight always attached to the lapse of time, in raising presumptions and quieting titles, as the means of maintaining peace, order, and harmony in the relations of civil society, there can be but one right conclusion in this case. The importance of such presumptions is stated with great emphasis and fulness of reference to authorities by Justice Kennedy, in Bellas V. Levan,' which he sums up in this conclusion : It is too obvious not to be seen and felt by every one how very important it is to the best interests of the state that titles to lands, instead of being vfeakened and impaired by lapse of time, should be strengthened, until they shall become incontrovertibly confirmed by it."^ The presumptions which are thus favored, it should at the same time be remembered, apply only to such possession as gives title under the statute of limitations, or is so long and undisputed as to imply acquiescence on the part of, if not grants from, adverse interests. the chancellor hy one of the counsel in the guare impedit, on the trial of which Ld. Plunkett made use of the imagery in his address to the jury. Taylor's Evid. § 67. See, also, remarks in Whart. Grim. L. § 31 a ; Whart. Cr. PI. & Pr. § 316, and passage from De- mosthenes there cited. 1 4 Watts, 294. " "The application of this doctrine to chamber surreys," so the same opinion goes on to say, " is a striking example. Caul v. Spring, 2 Watts, 390 ; Oyster v. Bellas, Ibid. 397 ; Nie- man u. Ward, 1 W. & S. 68. Justice Kennedy, in Bellas i). Levan, supra, says : ' Twenty years (now tweuty- one) from the return of survey by the deputy into the surveyor-general's of- fice were held (referring to Caul v. Spring) to be sufficient to raise an ab- solute and conclusive presumption that the survey was rightly made.' 'And that,' said C. J. Black, 'even where there was an unexecuted order of re- 506 survey by the board of property,' re- ferring to Collins V. Barclay, 7 Barr, 67. ' In short,' continued Judge Black, ' the courts of this state seem uniformly, and especially of late, to have refused to go back more than twenty-one years to settle any diffi- culties about the issue of warrants or patents, or the making or returning of surveys, or the payment of purchase- money to the commonwealth.' Stimp- fler V. Roberts, 6 Harris, 299. On the subject of presumptions from lapse of time, see, also, Mock u. Astley, 13 S & K. 382 ; Goddard v. Gloninger, 5 Watts, 209 ; Nieman «. Ward, 1 W. & S. (58 ; Ormsby v. Ihmsen, 10 Casey, 462 ; Mc- Barron v. Gilbert, 6 Wright, 279. In the case before us, the surveys of Gray were made and accepted thirty-three years before the issuing of John Bitler's warrant, and tliirty-iive years before the survey made upon it." Fritz v. Brandon, 78 Penn. St. 356. CHAP. XIV. J PRESUMPTIONS: TITLE. [§ 1340. § 1339. It has been observed in a prior chapter,' that when sys- tem has been established, in connection with a litigated fact, the conditions of other members of the same system whway may be proved. It is to the same general principle that Plumed we may trace a presumption, often recognized, that the to adjacent soil to the middle of a highway belongs to the owner of the adjoining land,^ which land is necessary to the grant under which such owner takes. The presumption, however, may be re- butted by showing that the road and the adjoining land belonged to different proprietors ;* or that there was an adverse proprietor- ship in a stranger.* But the use of a private right of way gives no presumption of ownership of the soil." § 1340. Another illustration of the same rule is to be found in an English decision, that where farms belonging to dif- „ - ferent owners and separated by a hedge and ditch, the hedges and hedge is presumed (so far as concerns the burden of proof) to belong to the owner of the land which does not contain the ditch.^ On the other hand, it is argued that when partition walls are used in common by the owners of the houses or lands thus separated, it will be presumed, primA facie, that the wall, and the land on which it stands, belong to them in equal moieties as tenants in common.' This presumption, however, yields to proof that the wall is built on land, parts of which were separately con- tributed by each proprietor.' A bank or boundary of earth, taken 1 Supra, § 44. * Doe v. Hampson, 4 C. B. 269. 2 Doe u. Pearsay, 7 B. & C. 304; 9 « Smith v. Howden, 14 C. B. (N. S.) D. & R. 908, S. C. ; Steel ^. Prickett, 398. 2 Stark. R. 463, per Abhott, C. J. ; « Guy v. "West, 2 Sel. N. P. 1296, Cooke «. Green, 11 Price, 736 ; Scoonea per Bayley, J. V. Morrell, 1 Beav. 251 ; Simpson v. ' Cubitt v. Porter, 8 B. C. 257 ; 2 M. Dendy, 8 Com. B. (N. S.) 433 ; Ber- & R. 267, S. C. ; Wiltshire v. Sidford, ridge v. Ward, 10 Com. B. (N. S.) 400 ; 1 M. & R. 404 ; 8 B. & C. 259, n., S. R. u. Strand Board of Works, 4 B. & S. C ; Washburn on Easements, ch. 4, 526 ; 2 Smith's Lead. Cas. 5th Am. ed. § 3. See Doane v. Badger, 12 Mass. 216 ; Harris y. Elliott, 10 Pet. 53 ; Mor- 65 ; Campbell v. Mesier, 4 Johns. Ch. row V. Willard, 30 Vt. 118 ; Newhall v. 334. Ireson, 8 Cush. 595 ; Child v. Starr, 4 " Matts v. Hawkins, 5 Taunt. 20 ; Hill, 369 ; Winter v. Peterson, 4 Zab. Murly v. McDermott, 8 A. & E. 138 ; 3 527 ; Cox v. Freedly, 33 Penn. St. 124. N. & P. 256. " Headlam v. Hedley, Holt N. P. R. 463. 507 § 1343.] THE LAW OF EVIDENCE. [book III. Soil under water pre- sumed to belong to owner of land adja- cent. from the adjacent soil, on the other hand, is presumed pro tanto to belong to the proprietor of the adjacent land.' § 1841. Unless there is an express limitation by way of boun- dary shown on the title of a party claiming, it is pre- sumed that the soil of unnavigable rivers, usque ad medium filum aquae, together with the right of fishing,' but not the right of abridging the width or interfering with the course of the stream,' belongs to the owner of the adjacent land.* On the other hand, as to navigable rivers and arms of the sea, the soil primd facie is vested in the sovereign and the fishing primd facie is public.'' § 1842. Alluvion is presumed to belong to the owner of the land upon which it is formed.* The same rule holds as to al- luvion on the sea-shore ; though it has been ruled that where the sea retreats suddenly, leaving uncovered a tract of land, the title to this tract belongs to the state.'^ It is scarcely necessary to add that presumptions in all cases of title of this class are controlled by the specific limitations of deeds.^ § 1343. A tree is presumed to belong to the owner of the land from which its trunk arises, though its roots extend into an adjacent estate.* When the tree grows on a boun- dary, it has been argued that the property in the tree is presumed to be in the owner of the land in which it was first sown or planted.'" The weight of authority, however. So of allu- vion. Tree pre- sumed to belong to owner of soil. 1 Callis on Sewers, 4th ed. 74 ; D. of Newcastle v. Clark, 8 Taunt. 627, 628, per Park, J. 2 See Marshall v. Nav. Co., 3 B. & S. 732. ' Biokett V. Morris, 1 Law Rep. H. L. iBc. 47. * Carter v. Muroot, 4 Burr. 2163 ; Wishart v. Wyllie, 1 Macq. So. Cas. H. of L. 389 ; Lord u. Commiss. for City of Sydney, 12 Moo. P. C. R. 473; Crossley v. Lightowler, Law Rep. 3 Eq. 279 ; Law Rep. 2 Ch. Ap. 478, S. C. * Carter v. Murcott, 4 Burr. 2163; Maloomson t,-. O'Dea, 10 H. of L. Caa. 593 ; 3 Washb. Real Prop. 56 ; Blundell V. Catterall, 5 B. & A. 298, 298. 6 Banks v. Ogden, 2 Wall. 57 ; Saulet 508 V. Shepherd, 4 Wall. 508 ; Granger v. Swart, 1 Woolw. 88 ; The Schools v. Risley, 10 Wall. 91 ; Deerfield v. Arms, 17 Pick. 41 ; Trustees v. Dickinson, 9 Gush. 544. ' Att'y-Gen. v. Chambers, 4 De G. & J. 55 ; Emans v. TurnbuU, 2 Johns. 322 ; St. Clair v. Lovingston, 23 Wall. 47. s See 3 Wash, on Real Prop. 4th ed. 420 et seq. 9 Claflin V. Carpenter, 4 Met. 580 ; HofiFman u. Armstrong, 48 N. Y. 201. 1" Holder «. Coates, M. & M. 112, per Littledale, J. ; Masters v. Pollis, 2 Roll. R. 141. Contra, Waterman u. Soper, 1 Ld. Ray. 737 ; Anon. 2 Roll. R. 255. CHAP. XIV.] PRESUMPTIONS: TITLE. [§ 1346. in such case, is that the tree is owned in common by the land- owners.* § 1344. JPrimd facie, the ownership of subjacent min- g,, of min- erals is imputed to the owner of the surface.^ *™^^' § 1345. But this presumption readily yields to proof of a grant of the minerals to a stranger.' The rights, so it has been held, is one of the ordinary incidents of property in land, and is not founded on any presumption of a grant or an easement.^ § 1346. A common system of title," or a unity of grant, gives a primd facie right, so it has been held, to the proprietor „ ^ of an upper story to the support of a lower story : and, may be .V, • • 1 iV, f iU 1 : u presumed on the same principle, the owner oi the lower story has from unity a primd facie claim to the shelter naturally afforded by ° S'^^^^- the upper rooms.* When there are two adjoining closes, also, be- longing to different owners, taking from a common vendor, the owner of the one has primd facie a limited right' to the lateral support of the other.* The right, however, does not justify the imposition of an additional weight by the erection of new build- ings.' And the right, either to support or drainage, may be sus- 1 1 Wash, on Eeal Prop. 12 ; Griffin V. Blxby, 12 N. H. 454 ; Skinner v. Wilder, 38 Vt. 45 ; Dubois v. Beaver, 25 N. y. 115. 2 Humphries v. Brogden, 12 Q. B. 739, 746 ; Smart v. Norton, 5 E. & B. 30 ; Harris o. Eyding, 5 M. & W. 60 ; Roberts c. Haines, 6 E. & B. 643 ; aff. in Ex. Ch., Haines v. Roberts, 7 E. & B. 625 ; Rowbotham ,.. Wilson, 6 E. & B. 593 ; 8 E. & B. 123, S. C. in Ex. Ch. ; 8 H. of L. Cas. 348 ; Caledonian Rail. Co. V. Sprot, 2 Maoq. So. Cas. H. of L. 449. 3 Adams v. Briggs, 7 Cush. 366 ; Caldwell ... Fulton, 31 Penn. St. 478 ; Caldwell v. Copelaud, 37 Penn. St. 427 ; Clement v. Youngman, 40 Penn. St. 341 ; Armstrong v. Caldwell, 53 Penn. St. 287. See Yale's Title to California Lands. * Backhouse v. Bonomi, 9 H. of L. Cas. 503. Also, Wakefield v. Buo- clenoh, Law Rep. 4 Eq. 613, per Ma- lins, V. C. ; Taylor's Ev. § 106. 5 Supra, § 44. s Humphries v. Brogden, 12 Q. B. 747, 756, 757 ; Caledonian Ry. Co. u. Sprot, 2 Macq. So. Cas. H. of L. 449. See Foley v. Wyeth, 2 Allen, 131; Lasala v. Holbrook, 4 Paige, 169 ; Mc- Guire v. Grant, 1 Dutch. (N. J.) 356. ' See Smith v, Thackeray, Law Rep. 1 C. P. 564 ; 1 H. & R. 615, S. C. As to these limits, see Thurston u. Han- cock, 12 Mass. 226. 8 2 Roll. Ahr. 564, Trespass, J., pi. 1 ; Taylor's Et. § 106. 9 Murohie v. Black, 34 L. J. C. P. 337 ; Farrand v. Marshall, 21 Barh. 409. As to right of support based on twenty years' possession, see Wyatt u. Harrison, 3 B. & Ad. 871 ; Hide v. Thornborough, 2 C. & Kir. 250 ; Part- ridge V. Scott, 3 M. & W. 220 ; Hum- phries V. Brogden, 12 Q. B. 748-750 ; Richart v. Scott, 7 Watts, 460. 509 § 1347.] THE LAW OF EVIDENCE. [book III. tained when both proprietors take the property as it stands from a common grantor.' It has, however, been held "by Lord Westbury, where a dock and a wharf belonging to A. were so situated that the bowsprits of vessels in the dock for many years projected over a part of the wharf, and where A. subsequently granted the wharf to B., the law would not imply a reservation in favor of the vendor of the right for the bowsprits to project over the wharf as before.' § 1347. Where a title, good in substance, is held, and where ad- verse to the parties against whom the presumption is Bubstan-''^ invoked, there is undisputed possession, consistent with such title, for twenty years, or for a period which other circumstances make equivalent to twenty years, missing links, of a formal character, may be presumed (as a presumption of fact, based on all the circumstances of the case) against adverse parties who, when competent to dispute such possession, have acquiesced in it.^ tially good exists, and there is long pos- session, missing links will he pre- sumed. 1 See Murohie v. Black, 34 L. J. C. P. 337 ; Washburne on Easements, 556 ; Klchards u. Rose, 9 Ex. R. 218 ; U. S. V. Appleton, 1 Sumn. 492; Partridge V. Gilbert, 15 N. Y. 601. Cf. Solomon V. Vintners' Co., 4 H. & N. 585 ; Pyer V. Carter, 1 Hurl. & Nor. 916 ; Hall v. Lund, 32 L. J. Exch. 113. See, how- ever, as greatly qualifying this conclu- sion, Suifield V. Brown, 3 New R. 343 ; Carbery v. Willis, 7 Allen, 369 ; Ran- dell ... McLaughlin, 10 Allen, 366 ; Butterworth v. Crawford, 46 N. Y. 349. 2 Suffield V. Brown, 9 L. T. N. S. 627 ; 33 L. J. Ch. 249 ; S. C. per Ld. VFest- bury, Ch., reversing a decision of Ro- milly, M. R., 2 New R. 378; Taylor's Ev. § 106. As dissenting from Lord Westbury's reasoning, however, we may notice the argument of the court in Pyer v. Carter, ut supra, and the conclusions in Huttemeier v. Albro, 18 N. Y. 52; and McCarty v. Kitchen- maun, 47 Penn. St. 243. See, also, Leonard v. Leonard, 7 Allen, 283 ; but see, as according with the principle of Suffield V. Brown, Randall v. Mc- Laughlin, 10 Allen, 366. 510 ' See Best's Evidence, § 392 ; John- son V. Barnes, L. R. 7 C. P. 593 ; S. C. L. R. 8 C. P. 527 ; Hammond ». Cooke, 6 Bing. 174 ; Attorney-Gen. u. Hospital, 17 Beav. 435 ; Angus v. Dalton, L. R. 4 Q. B. D. 162 ; Burr v. Galloway, 1 McLean, 496 ; Clements v, Macheboeuf, 92 U. S. 418 ; Hill v. Lord, 48 Me. 83 ; Brattle v. Bullard, 2 Met. 363 ; Valen- tine V. Piper, 22 Pick. 85 ; White v. Loring, 24 Pick. 319 ; .lackson v. Mc- Call, 10 Johns. 377 ; Cuttle ■«. Brock- way, 24 Penn. St. 145 ; Earley v. Eu- wer, 102 Penn. St. 338; Cheney v. Walkins, 2 Har. & J. 96; Coulson v. Wells, 21 La. An. 383; Paschall ». Dangerfield, 37 Tex. 273. See, as in- dicating limits of this rule, Hanson v. Eustace, 2 How. 653 ; Nichol v. Mc- Calister, 52 Ind. 586 ; and see, for specifications, infra, § 1362. That a dedication of a highway may be thus presumed, subject to the reservations which usage establishes, see Mercer v. Woodgate, 10 B. & S. 833 ; Arnold v. Holbrook, L. R. 8 a. B. 96. CHAP. XIV.] presumptions: title. [§ 1349. § 1348. When there has been continued possession, of the char- acter stated, the oourt will presume a grant or letter patent from the sovereign, as initiating such possession.* sovereign Hence, in England, charters, and even acts of Parliament, p^sumed. have been thus presumed, after long possession accom- panied by uncontested acts of ownership ;^ and in several American states (e. g., Pennsylvania") an analogous limitation is adopted by statute. But a grant of public lands will not be presumed from unin- terrupted possession of only ten years f nor will this presumption be made in behalf of a party with whose case the presumption is inconsistent.* § 1349. By the English common law, if a party, and those under whom he claims, have enjoyed from time immemorial estates the subject of grant, the presumption that a ineoipo- grant has been made is irrebuttable, and the right is ^^tament" held to be valid. But, as it is impossible to prove en- presumed joyment from time immemorial, a definite period of unin- twenty terrupted possession (e. g., twenty years as a minimum)'' ' Lopez V. Andrews, 3 M. & R. 329 ; Mayor i'. Horner, Cowp. 102; Reed u. Brookman, 3 T. R. 158; Attorney- General V. Dean of Windsor, 24 Beav. 679 ; Devine v. Wilson, 10 Moore P. C. R. 527 ; O'Neill v. Allen, 9 Ir. Law N. S. 132 ; Healey v. Thurm, L. R. 4 C. L. 495 ; Reed v. Brookman, 3 T. R. 158 ; Pickering v. Stamford, 2 Ves. Jun. 583 ; Townsend v. Downer, 32 Vt. 183; Emans v. Turubull, 2 Johns. R. 313 ; Jackson u. McCall, 10 Johns. R. 377 ; Mather v. Trinity Ch., 3 S. & R. 509 ; Cuttle V. Brookway, 24 Penn. St. 145 ; Williams v. Donell, 2 Head. 695 ; Rooker a. Perkins, 14 Wis. 79 ; Davis v. Bow- mar, 55 Miss. 673 ; Beatty v. Michon, 9 La. An. 102; Hogans v. Carrutch,19 Fla. 84 ; Grimes v. Bastrop, 26 Tex. 310. " Thus, though lapse of time does not, of itself, furnish a conclusive legal bar to the title of the sovereign, agreeably to the maxim, ' Nullum tempus ooourrit regi,' yet, if the ad- verse claim could have had a legal commencement, juries are instructed or advised to presume such commence- ment after many years of uninterrupted adverse possession or enjoyment." Greenl. Ev. § 45, citing among other oases Roe v. Ireland, 11 East, 289 ; Doe V. Wilson, 10 Mood. P. C. 502 ; Mayor V. Warren, 5 Q. B. 773; Jackson v. McCall, 10 Johns. 37. See Carter v. Fishing Co., 77 Penn. St. 310; State v. Wright, 41 N. J. L. 478, 556. ' Delarue v. Church, 2 L. J. Ch. 113 ; ^Little V. Wingfield, 11 Ir. Law R. N. S. ' 63 ; Roe v. Ireland, 11 East, 280 ; Good- title V. Baldwin, Ibid. 488 ; Attor.-Gen. V. Ewelme Hospital, 17 Beav. 366 ; and see Johnson v. Barnes, L. R. 7 C. P. 593 ; S. C. L. R. 8 C. P. 527. " Walker v. Hanks, 27 Tex. 535 ; Biencourt v. Parker, 27 Tex. 558. * Sulphen v. Norris, 44 Tex. 204. " Bailey v. Appleyard, 3 N. & P. 257. 511 § 1349.] THE LAW OF EVIDENCE. [BOOK III. was considered by the courts as a basis from which prior indefinite possession might be presumed by the jury. Subsequently, this rule was extended by presuming the existence, not of an ancient, but of a modern grant, from the proof of user, as of right, for twenty years.' By Lord Tenterden's Act,^ thirty years' uninterrupted enjoyment to rights of common or profits d prendre gives a primd facie title, and sixty years' adverse possession an absolute title. The limits as to rights of way, easements, and water-courses are reduced to twenty and forty years respectively .^ Prior to Lord Tenterden's Act, " it became a usual mode of claiming title to an incorporeal hereditament" (for it is to incorporeal hereditaments alone that title by prescription applies at common law) " to allege a feigned grant, within the time of legal memory, from some owner of the land or other person capable of making such grant, to some tenant or person capable of receiving it, setting forth the names of the supposed parties to the document, with the excuse of profert that the document had been lost by time or accident. On a traverse of the grant, proof of uninterrupted enjoyment for twenty years was held cogent proof of its existence ; and this was termed making title by non-existing grant."* The same presumption, as to the grant of an incorporeal hereditament, based on enjoyment for twenty years, has been sustained in this country." But there must be an exclu- 1 See Reed v. Brookman, 3 T. R. Looks, 17 Pick. 255 ; Brattle St. Ch. 151 ; Angus v. Dalton, L. R. 4 Q,. B. v. Mullard, 2 Met. 363 ; Sibley v. Ellis, D. 162 ; Lon. Law Mag. May, 1879. 11 Gray, 417 ; Ingraham v. Hutohin- 2 2 & 3 Will. 4, 0, 71. son, 2 Conn. 584; Emans v. TurnbuU, " For cases construing this statute, 2 Johns. R. 313 ; Benbow v. Robbins, see Lowe v. Carpenter, 6 Exoh. 825 Warburton v. Parke, 2 H. & N. 64 Blewett V, Tregonning, 3 A. & E. 554 71 N. C. 338 ; Hall v. MoLeod, 2 Mete. (Ky.) 98. See Glass v. Gilbert, 58 Penn. St. 266 ; McCarty a. McCarty, Wilkinson v. Proud, 11 M. & W. 33; 2 Strobh. 6. Cooper V. Hubbuck, 12 C. B. (N. S.) In Pennsylvania, while it Is doubted 456 ; Shuttleworth u. Le Fleming, 19 whether a legal prescription is recog- C. B. (N. S.) 687. nized (Rogers, J., Reed v. Goodyear, * Best's Evidence, § 377. 17 S. & K. 352), yet the presumption " Tudor'sLeadiugCases, 114; Wash- stated in the text, as to incorporeal burn on Easements, 3d ed. 110 ; 2 hereditaments, is established. Ibid., Washb. Real Prop. (4th ed.) 319 ; citing Tilghman, C. J., in Kingston Ricard v. Williams, 7 Wheat. 109 ; v. Leslie, 18 S. & R. 383 ; and ap- Farrar «. Merrill, 1 Greenl. 17; Bui- proved in 1875, by Agnew, C. J., in len V. Runnels, 2 N. H. 255 ; Valen- Carter v. Tinicum Fishing Co., 77 tine V. Piper, 22 Pick. 93 ; Melvin v. Penn. St. 315 ; quoted infra, § 1352. 512 CHAP. XIV.J PRESUMPTIONS: TITLE. [§ 1350. sive enjoyment for twenty years to sustain such presumption ; and the presumption may be rebutted by proof of lack of such enjoy- ment.* Thus, a general usage (e. g., that of leaving lumber on a river bank), when not accompanied by claim of title and exclusive occupation, gives no foundation to the presumption of a grant.^ But, on the other hand, a right to an easement may be inferred from long lapse of uninterrupted enjoyment, irrespective of the question of statute of limitations.' Fisheries are hereafter specifically considered.^ § 1350. It should be remembered that the grant, to be pre- sumed against the owner of the inheritance, must have been with Ms acquiescence : acquiescence by a tenant ^Doe'must for life, or other subordinate party, will not be enough ''ave been 1 „ ™ . , , by owner to incumber the fee.* To this acquiescence, a knowledge ofinherit- of the easement is essential. If there be no such knowl- ^ith edge (e. g., where water percolates through undefined oft'j^'f^fg subterranean passages), no length of time can establish 1 Livett V. Wilson, 3 Bing. 115 ; Daw- son V. Norfolk, 1 Price, 246 ; Hurst v. McNeil, 1 Wash. C. C. 70-; Rowell v. Montville, 4 Greenl. 270 ; Nichols v. Gates, 1 Conn. 318 ; Brant v. Ogden, 1 Johns. R. 156 ; Palmer v. Hicks, 6 Johns. E. 133 ; Irwin v. Fowler, 5 Robt. (N. Y.) 482; Burke u. Ham- mond, 76 Penn. St. 179 ; Field v. Brown, 24 Grat. 74 ; Best's Ev. § 378. The time, it should be noticed, varies with local law. " In Connecticut it is fifteen years, in analogy to its statute of limitations. Sherwood v. Burr, 4 Day, 244-249. In Pennsylvania, twenty-one years. Strickler v. Todd, 10 S. & R. 63, and cases cited infra. In Massachusetts, twenty years. Sar- gent V. Ballard, 9 Pick. 251, 254." 2 Washb. Real Prop. 4th ed. 319. As to presumptive rights to fences, in Maine, see Harlow v. Stinson, 60 Me. 349. Where a fishing mill-dam built more than 110 years before 1861, in the river Derwent, in Cumberland (the river at the place not being navigable), was VOL. II. — 33 used more than sixty years before 1861, in the manner in which it was used in 1861, a presumption was held to exist of a grant from the proprie- tors of adjacent lands whose rights were thereby affected. Leoonfield v. Lonsdale, L. R. 5 C. P. 657. 2 Bethum v. Turner, 1 Greenl. Ill ; Tickham v. Arnold, 3 Greenl. 120. 3 Munroej;. Gates, 48 Me. 463 ; Atty.- Gen. V. Proprietors, 3 Gray, 62; Edson u. Munsell, 10 Allen, 557 ; Nichols n. Boston, 78 Mass. 39 ; Briggs v. Prosser, 14 Wend. 227. See Kingston v. Leslie, 13 S. & R. 383. Infra, § 1351. ■• Infra, § 1352. 5 Bfest's Ev. § 379, citing 2 Wms. Saund. 175 ; and see Wood t<. Veal, 5 Barn. & Aid. 454 ; Daniel v. North, 11 East, 372 ; Ricard o. Williams, 7 Wheat. ' 59 ; Cooper v. Smith, 9 S. & R. 26 ; Ed- son V. Munsell, 10 Allen, 568 ; Stevens <■. Taft, 11 Gray, 33 ; Smith v. Miller, 11 Gray, 148 ; Coalter v. Hunter, 4 Rand. 58 ; Nichols v. Aylor, 7 Leigh, 546; Biddle v. Ash, 2 Ashm. 211. Supra, § 1161. 513 § 1350.] THE LAW OF EVIDENCE. [BOOK Til. acquiescence.' But the acquiescence of the owner may be estab-' lished inferentially.^ Thus, after the evidence was given of user by the public of an alleged public way for nearly seventy years, during the whole of which period the land had been on lease, it was held that from these facts the jury were at liberty to infer a dedi- cation to the public use by the owner of the inheritance.^ It need scarcely be added that the presumption of title to an easement merely from twenty years' possession is only sumption prima facie, and may be rebutted.* When, however, aJ^ountto it appears that this enjoyment has for the period in ques- an estop- tion been acquiesced in by the owner of the inheritance, this may estop him from disputing the right to the ease- ment ; and in such case the presumption may be treated as irrebut- table, — not because it is technically a praesumtio juris et dejure, but because a party is not permitted, after inducing by his acqui- escence another to alter his position, to ignore the rights which such other has thereby acquired. " It may," also, " be stated as a general proposition of law, that if there has been an uninterrupted user and enjoyment of an easement, a stream of water, for instance, in a particular way, for more than twenty-ijne, or twenty, or such other period of years as answers to the local period of limitation, it affords conclusive presumption of right in the party who shall have enjoyed it, provided such use and enjoyment be not by authority of law, or by or under some agreement between the owner of the in- heritance and the party who shall have enjoyed it."* 1 Chasemore v. Richards, 7 H. of L. s Wasliburne on Easements, 3d ed. Cas. 349. See Heath u. Driscoll, 20 114, citing Strickler u. Todd, 10 S. & Conn. 533. R. 63 ; OIney v. Fenner, 2 R. I. 211 ; 2 Gray v. Bopd, 2 B. & B. 667. See Pillsbury v. Moore, 44 Me. 154 ; Belk- Wheatley v. Baugh, 12 Ohio St. 294. nap v. Trimble, 3 Paige, 517 ; Towns- " Winterbottom v. Derby, L. R. 2 Ex. hend v. McDonald, 2 Kern. 381 ; Hazard 316. „. Robinson, 3 Mason, 272; Wilson l. ' Livett V. Wilson, 3 Bing. 115 ; Wilson, 4 Dev. (N. C.) 154 ; Gayetty Campbell v. WilsoB, 3 East, 294 ; Be- v. Bethune, 14 Mass. 51 ; Parker o. thum V. Turner, 1 Greenl. Ill ; Tyler Foote, 19 Wend. 309 ; Corning v. Gould, ,;. Wilkinson, 4 Mason, 397 ; Sargent 16 Wend. 531 ; Hall v. McLeod, 2 Mete. V. Ballard, 9 Pick. 251 ; Corning o. (Ky.) 98 ; Wallace v. Fletcher, 10 Fos- Gould, 16 Wend. 531 ; Cooper v. Smith, ter, 434 ; Winnipiseogee Co. v. Young, 9 S. & R. 26 ; Wilson v. Wilson, 4 Dev. 40 N. H.' 420 ; Tracy v. Atherton, 36 154; Ingraham-u. Hough, 1 .Tones (N. Vt. 512; Burnham ... Kempton, 44 N. C), 39 ; Lamb v. Crossland, 4 Rich. H. 88. See Leconfield v. Lonsdale, L. 536. And see supra, §§ 1087 et seq. R. 5 C. P. 657 ; and see opinion of Ag- 514 CHAP. XIV.] PRESUMPTIONS: TITLE. [§ 1352. § 1351. It must be repeated that a possession for less than twenty years can be helped out by proof of other cir- cumstances, so as to enable a grant to be presumed.^ ^ncTfor The presumption in such case is one of fact for the iury, less than . . J J 1 twenty under the instructions of the court.^ And among the years may, circumstances which will sustain such a presumption, as circum- ^^ has been seen, is to be considered such acquiescence by fer'l'^tranT adverse interests as approaches an estoppel.* § 1852. Intermediate deeds of conveyance of interests in free- hold may, on like principles, be inferred in cases where . . - Presump- there has been quiet possession tor at least twenty years,^ tion as to new, C. J., in Carter v. Tinioum Fish- ing Co., 77 Penn. St. 315, quoted infra, § 1352. Duncan, J., in Striokler v. Todd, 10 S. & R. 63, speaks of an "uninter- rupted exclusive enjoyment above twenty-one years" of a water privilege as affording a, ' ' conclusive presump- tion ;" but this must be understood, in order to reconcile the case with other Pennsylvania rulings, to mean " con- clusive proof of prescription." 1 See supra, §§ 1347, 1348 ; and see Bright V. Walker, 1 C, M. & R. 222, 223, per Parke, B. ; Stamford a. Dun- bar, 18 M. & W. 822, 827 ; Lowe v. Car- penter, 6 Ex. R. 830, 831, per Parke, B. ; Taylor, § 111. 2 Doe V. Cleveland, 9 B. & C. 844 ; Doe V. Davies, 2 M. & W. 503 ; Carter V. Tinicum Fishing Co., 77 Penn. St. 310. s Doe V. Holder, 3 B. & Aid. 790 ; Kingston „. Leslie, 10 S. & R. 383; Foulk V. Brown, 2 Watts, 214. * See supra, § 1347 ; Knight v. Ad- amson, 2 Freem. 106 ; Wilson v. Allen, 1 Jac. & W. 611 ; Tenny v. Jones, 3 M. & Scott, 472 ; Cooke v. Soltan, 2 S. & St. 154 ; Farrer v. Merrill, 1 Greenl. 17 ; Stookbridge v. West Stockbridge, 14 Mass. 257 ; Com. v. Low, 3 Pick. 408 ; Melvin v. Locks, 17 Pick. 255 ; White V. Loring, 24 Pick. 319 ; Ryder V. Hathaway, 21 Pick. 298 ; Brattle v. Bullard, 2 Met. 363 ; Attorney-General V. Meeting-house, 3 Gray, 1, 62 ; Jack- son V. Murray, 7 Johns. R. 5 ; Living- ston i^. Livingston, 4 Johns. Ch. 287 ; Burke v. Hammond, 76 Penn. St. 179 ; Cheney v. Walkins, 2 Har. & J. 96 ; . Jefferson Co. v. Ferguson, 13 111. 33 ; Riddlehoner v. Kinard, 1 Hill (S. C.) Ch. 376 ; Nixon v. Car Co., 28 Miss. 414 ; Newman v. Studley, 5 Mo. 291 ; McNair v. Hunt, 5 Mo. 300. " The general statement of the doc- trine, as we have seen from the autho- rities cited, is that the presumption of a grant is indulged merely to quiet a long possession, which might otherwise be disturbed by reason of the inability of the possessor to produce the muniments of title, which were actually given at the time of the acquisition of the property by him, or those under whom he claims, but have been lost, or which he or they were entitled to have at that time, but had neglected to obtain, and of which the witnesses have passed away, or their recollection of the transaction has become dimmed and imperfect. And hence, as a general rule, it is only when the possession has been actual, open, and exclusive for the period pre- scribed by the statute of limitations to bar an action for the recovery of land, that the presumption of a deed can be involved." Fletcher v. Fuller, 120 D. S. 551, Field, J. 515 § 1352.] THE LAW OF EVIDENCE. [book III. Intermedi- ate deeds and other procedure. or when after long-continued possession there is conduct equivalent to an estoppel, which may be imputed to the party from whom the deed is presumed.^ In such case 1 See Doe v. Hilder, 3 B. & A. 790; Cottrell V. Hughes, 15 C. B. 532. In a case decided in 1875, in Penn- sylvania, it was sliown that Sanderlin held title to a fishery in 1748, and that in 175^ the fishery, on proceedings in partition, was adjudged to "the rep- resentatives of Mary (his daughter), late wife of James," subject to aground- rent, the whole estate being divided into five shares. Elizabeth and others, reciting that they were heirs of ' ' James, who was an heir of Sanderlin," con- veyed in 1805 to Carter ; the deed also recited the proceedings in partition ; also prior deeds reciting the partition, and that the grantors were heirs of other heirs of Sanderlin, and conveying to Carter their interest in two-fifths of the fishery. There was no other evi- dence of the pedigree of the grantors, nor of any claim by the descendants of Sanderlin for the fishery. This was held sufficient to raise a presumption of a grant, to make a good title to Carter of the fishery. Carter v. Tinicum Fishing Co., 77 Penn. St. 310. In this case we have from Agnew, C. J., the following valuable summary of the Pennsylvania cases : — " Presumptions arising from great lapse of time and non-claim are admit- ted sources of evidence, which a court is bound to submit to a jury, as the foundation of title by conveyances long since lost or destroyed. "This is stated by C. J. Tilghman, in Kingston v. Leslie, 10 S. & R. 383. There the absence of all claim for years, on the part of a female branch of a family, represented by Honorie Her- man, at an early day was held to con- stitute a ground to presume that lier title had been vested in the male 516 branch. Judge Tilghman remarked : ' I do not know that there is any posi- tive rule defining the time necessary to create a presumption of a conveyance. In the case of easements and other in- corporeal hereditaments, which do not admit of actual possession, the period required by law for a bar of the statute of limitations is usually esteemed suffi- cient ground for a presumption.' This doctrine of lapse of time is discussed at large by Justice Rogers, in Reed v. Goodyear, 17 S. & R. 352, 353. ' The courts of law,' he remarks, 'pay espe- cial attention to rights acquired by length of time. Although it has been doubted (he says) whether a legal pre- sumption exists in Pennsylvania, yet the doctrine of presumption prevails in many instances.' He quotes and ap- proves the language of Chief Justice Tilghman, in Kingston v. Leslie, in re- lation to presumptions in the case of easements and incorporeal heredita- ments, and adds : ' The rational ground for a presumption Is where, from the conduct of the party, you must suppose an abandonment of his right. ' Among the oases he cites is one directly ap- plicable to a fishery : ' So a plaintiff had forty years' possession of a piscary ; the court decreed the defendants to sur- render and release their title to y* same, though the surrender made by the defendant's ancestor was defec- tive ;' Penrose v. Trelawney, cited in Vernon, 196. Justice Sergeant said, in Foulk v. Brown, 2 Watts, 214, 215, ' The court will not encourage the laches and indolence of parties, but will presume, after a, great length of time, some composition or release to have been made ; this length of time does not operate as a positive bar, but CHAP. XIV.] PRESUMPTIONS: TITLE. [§ 1352. possession will justify the presumption, provided it be exclusive and continuous.' Hence it has been held in England, that where as furnishing evidence that the demand has been satisfied. But it is evidence from which, when not rebutted, the jury is bound to draw a conclusion, though the court cannot.' Again he says : ' The rule of presumption, when traced to its foundation, is a rule of con- venience and policy, the result of a necessary regard to the peace and se- curity of society. Justice cannot be satisfactorily done when parties and witnesses are dead, vouchers lost or thrown away, and a new generation has appeared on the stage of life, un- acquainted with the affairs of a past age and often regardless of them. Pa- pers which our predecessors have care- fully preserved are often thrown aside or scattered as useless by their succes- sors.' Acts of ownership over incor- poreal hereditaments, corresponding to the possession of corporeal, are deemed a foundation for a presumption. ' The execution of a deed,' says Gibson, C. J., 'is presumed from possession in conformity to it for thirty years ; and why the entire existence of a deed should not be presumed from acts of ownership for the same period, which are equivalent to possession, it would not be easy to determine.' Taylor u. Dougherty, 1 W. & S. 327. And said Black, C. J., in Garrett v. Jackson, 8 Harris, 335 : ' But where one uses an easement whenever he sees fit, without asking leave and without objection, it is adverse, and an uninterrupted ad- verse enjoyment for twenty-one years is a title which cannot be afterwards disputed. Such enjoyment, without evidence to explain how it began, is presumed to have been in pursuance of a full and unqualified grant.' This is repeated by Justice Woodward, in Pierce v. Cloud, 6 Wright, 102-lU. See his remarks also in Fox v. Thomp- son, 7 Casey, 174, that links in title are supplied by long and unquestioned assertion of title. The same principles are repeated by the late C. J. Thomp- son, in Warner v. Henby, 12 Wright, 190. The necessity of relaxing the rules of evidence in matters of ancient date was shown in Richards v. Elwell, 12 Wright, 361, a case of parol bargain and sale of land, and possession for forty years. The court below held the party to the same strictness of proof re- quired in a recent case. It was there said by this court : ' If the rule which requires proof to bring the parties face to face and to hear them make the bargain, or repeat it, and to state all its terms with precision and satisfac- tion, is not to be relaxed after the lapse of forty years, when shall it be ? It is contrary to the presumptions raised in all other cases, — presumptions which are used to cut off and destroy rights and titles founded upon records, deeds, wills, and the most solemn acts of men. Based upon a time much shorter, we have the presumptions of a deed, grant, release, payment, survey, abandon- ment, and the like.' And again : ' There is a time when the rules of evi- dence must be relaxed. We cannot summon witnesses from the grave, rake memory from its ashes, or give freshness and vigor to the dull and torpid brain.' The same principles are held in the following cases : Turner v. Waterson, 4 W. & S. 17L; Hastings u. Wagner, 7 Ibid. 215 ; Brock v. Savage, 10 Wright, 88." Agnew, C. J., Carter v. Tinioum Fishing Co., 77 Penn. St. 1 Doe V. Gardiner, 12 C. B. 319 ; Burke v. Hammond, 76 Penn. St. 179. 517 § 1352.] THE LAW OF EVIDENCE. [book III. the plaintiff's title rests on feoffment, and he shows that he has had uninterrupted enjoyment of the premises for twenty years, without 315. See, also, to same effect. Brown V. Day, 78 Penn. St. 129. As to fisheries, see further, Lecon- field V. Lonsdale, L. R. 5 C. P. 657 ; cited supra, §§ 1349, 1350. For the following note I am indebted to my brother, the late Henry Wharton. Ownership or title to land is really not a fact, but a conclusion of law from a series of facts. The existence of any one of these, it is true, is a matter of proof by the person who is obliged to assert it, as in any other case ; but the result of the whole is a legal right. Besides this, not merely the nature of the proof of the facts from which such title is deduced, but, owing to the varied forms of action in which it is tried, the person by whom the proof is to be made, must be considered. It follows from this that it is not proper to speak, in an absolute sense, of presumptions of title. At least in England, and those of the United States who still follow the traditions of the feudal system, all land in the first instance belongs to the sovereign, and his rights cannot be affected by lapse of time or mere adverse claim ; a grant from him must be positively shown, unless under very peculiar cir- cumstances. In Pennsylvania this was once carried so far that no one could recover in ejectment without showing title out of the commonwealth, though he might not be able to connect that title with his own. This, however, was qualified as to long-settled parts of the state, by later decisions, see Smith V. Townshend, 32 Penn. St. 434, and is now remedied by statute. It follows, therefore, that there can he no legal presumption of ownership as such. Nor as a presumption of fact has it any existence. When a man is 518 seen to enter a house with a pass-key, there is a presumption in favor of the rightfulness of the act ; but standing alone it would give rise to a very faint inference of title, because he might be but a tenant, a lodger, or a member of the owner's family. The same may be said in regard to a man ploughing a field, or gathering fruit, or any other such isolated act. No abstract conclu- sion is warranted by incidents like these ; it is only when repeated so often, under such circumstances, and with such apparent exclusion of the rights of others, as to fall under the legal definition of possession, that there is any room for presumptions ; but even then it must appear that, accord- ing to the common experience of men at the particular time and place, pos- session is most usually associated with ownership. Such is the case in the newer parts of this country, where agri- cultural tenancy is exceptional : and so it would be in France. But in cer- tain counties of England and Ireland, and also in parts of India, the proba- bility would be the other way. The weight to be given to possession must vary, therefore, with the circumstances, and it can seldom, without other ex- planatory facts, justify a peremptory conclusion. Indeed, when the effect of possession is considered in the ab- stract, without regard to the form of the action in which it is presented, it will in general, if not always, be found, that the presumption which is derived from it is confined to some alleged fact, which is merely a link in the chain of title : as where a man en- ters claiming under a deed and remains in exclusive possession for many years, this raises a presumption — not of own- ership — but of the former existence of CHAP. XIV.] PRESUMPTIONS: TITLE. [§ 1352. molestation from the feoffer, the jury will be entitled to presume, in his favor, that the necessary formalities of a livery of seisin took the deed, which, may or may not suffice to complete the chain. The true doctrine on this subject is laid down by Tindal, Ch. J., in Doe v. Cooke, 6 Bing. 179 : "No case can be put in which any presumption has been made, except where a title has been shown by the party who calls for the presumption, 'good in substance,' but wanting some collateral matter to make it complete in point of form. In such cases, where the possession has been shown to be consistent with the fact directed to be presumed, and in such cases only, has it ever been al- lowed." And to the same effect are Doe V. Reed, 5 B. & A. 236 ; Doe o. Waterton, 3 B. & A. 149. In Penn- sylvania, before the Statute of 1855, it was held that in the case of a perpetual rent no presumption of a release or ex- tinguishment of the rent could be made upon the mere fact of its non- payment for any period of years. St. Mary's Church v. Miles, 1 Whart. 229. The case of easements is somewhat diiferent. In regard to ways, water- courses, fisheries, or the like, an un- interrupted user is a constant and conspicuous interference with the ex- clusive right of the owner of the soil, and not ordinarily justifiable on any theory of tenancy or subordinate title. Hence the user being primA facie in- consistent with the owner's right, and from its nature not concealed from him, it is held that the court may direct the jury to presume some previous grant, because unlawfulness cannot be pre- sumed, and the only way by which at law an incorporeal hereditament can be created is by a grant under seal. In truth, it is the extremely artificial nature of this presumption that has created the difficulty which judges and juries often have felt in regard to it. If the modern doctrine of license, which is the more rational explanation of such special rights, had been earlier introduced, it would have saved much trouble, for juries would then have had their attention called to the question whether the license was revocable or not, an element of which would be the consideration given. At any rate in England the Prescription Act of Wil- liam IV. has put an end to what was, in theory at least, a very unsatisfac- tory state of the law, by substituting an actual statute of limitations in its stead. Now, passing from these general ob- servations, the occasions on which the presumption of the existence of a fact essential to title is made are obviously in actions : — I. Between the real owner and the possessor of the laud. II. Between a former possessor of the land and one in actual possession. III. Between vendor and purchaser. I. As a general rule, nothing but some statute of limitations can prevent the holder of the legal title from recov- ering at law : no mere possession dif- ferent from or of less duration than that which is requisite under the stat- ute creates any presumption of title. The difference at common law between the writs of right and of entry, and the action of ejectment, is familiar. The latter is based on a right of pos- session , and a consequent right of entry on the land. The writ of entry was based on an actual previous seisin, and a consequent right of entry. The writ of right was based on title alone. Formerly in England the periods of limitation in respect to each of these actions was different. In many of the 5.19 § 1352.] THE LAW OF EVIDENCE, [book III. place.' So as we have seen, under similar conditions, the formali- ties of deeds will be presumed to have heen duly executed, when this does not contradict the deeds themselves." United States, as in Pennsylvania, the distinction has vanished, and the same period of time is applicable where the suit is hased on possession alone, or where on title, or where on both. But this has not produced any effect on the rules at common law as applied to ac- tions of ejectment ; for instance, that the defendant must have had actual, open, notorious, continuous, and ad- verse possession during the statutory period upon some color of right, other- wise the right of entry is not taken away. There may be reason for the interference of a court of equity, on special grounds, but at law the true owner must recover unless barred by the statute. In the case of a vacant lot of ground, for Instance, the true owner will always recover, no matter how remote the origin of his title, and no matter under what number of mesne conveyances the defendant claims. De Haven v. Landell, 31 Penn. St. 120. The case as between tenants in com- mon is not an exception to this, though it is sometimes spoken of as that of presumption of grant or release. The truth is, that the statute does not run as between tenants in common, be- cause each has a right of entry. But where there has been an exclusive and liostile perception of the whole profits of the land for more than the statutory period, there the jury can justly be told to presume a turning out, or assumption of adverse ownership, on some ground bad or good. The only difference is, that this presumption would require a stronger state of facts than as between strangers. Indeed, the shortest way of expressing this is, that with tenants in common, as with tenants for years, there is a prelimi- nary presumption that possession re- mains consistent with its origin till the contrary is proved ; and this must be shown by acts and conduct incon- sistent with that presumption. II. When the suit is by a former pos- sessor for a disturbance of his pos- session, the question is complicated in a double way : by the form of action, and by the character of the possession. As to the form of action, where there has been a mere temporary disturb- ance of possession , for which trespass is the remedy, very little needs to be said in the first instance. If the plaintiff has acquired possession, however wrongfully, he can recover damages for an interference therewith by a mere intruder, who cannot use the want of title of his adversary as a shield. This is the rule in all civilized jurispru- dence. In Rome, indeed, there was a special interdict to protect possession even against the rightful owner. In England, and in many of the United States, however, while the exercise of force in recovering possession is a criminal offence, it is not a ground for civil remedies : Buring v. Reed, 11 Q. B. 904; Harvey v. Brydges, 14 M. & W. 437 ; 1 Exoh. 117 ; Overdeer v. Lewis, 1 W. & S. 90 ; Rich . Boling, 8 Gal. 384 ; Hillebrant 2 Coxe V. Deringer, 78 Penn. St. 271. v. Burton, 17 Tex. 138. As to sales by See S. C. 3 Weekly Notes, 97. administrators, see Pejobscot v. Rau- ' Supra, § 1304. som, 14 Mass. 145. * Plowd. 411 ; Finch L. 399 ; Crane ^ Hathaway v. Clark, 5 Pick. 490 ; V. Morris, 6 Pet. 598 ; Reedy v. Scott, Lytle v. Colts, 27 Penn. St. 193 ; 23 Wall. 352 ; Sagee v. Thomas, 3 Nichol v. MoAlister, 52 Ind. 586. Blatch. 11; Battles v. Holly, 6 Greenl. 6 gee cases cited supra, § 645. 145 ; Freeman v. Thayer, 33 Me. 76 ; 525 § 1358.] THE LAW OF EVIDENCE. [BOOK III. apprenticeship, under which the parties acted, will be presumed to have been regularly executed ;' and so defects in the recording of ancient deeds may be explained by parol.^ Wherever, also, an ad- ministrative record is executed, such record will primd facie be re- garded as regular.' § 1356. A license to relieve a party from a check on a title may be thus presumed. Thus, in a case where ejectment was License brought to recover a house and lot, which had been let 111 ^j U c ^^ thus pre- for a long term of years, it appeared that the lease con- tained a covenant by the lessee that the house should not be used as a shop without the consent of the lessor, there being a proviso for reentry on the breach of the covenant. It was held by the court that the jury could presume a license from proof of the uninterrupted user of the premises as a beer-shop for twenty years.* § 1357. A substantial title, however, is the pre-requisite to the Title in invocation of the presumptions which have been just such case stated, for " no case can be put in which any presump- must be . , ' , , . , , , , substan- tion has been made, except when a title has been shown *'* ■ by the party who calls for the presumption, good in sub- stance, but wanting some collateral matter necessary to make it complete in point of form. In such case, where the possession is shown to have been consistent with the existence of the fact directed to be presumed, and in such case only, has it ever been allowed."' § 1358. It need scarcely be added that the presumption of such conveyances is rebuttable by counter-proof, though a tion is re- party by acquiescence in an imperfect title may be es- buttabie. topped from disputing it.« 1 R. V. Hinckley, 12 East, 361 ; R. o. * Gibson v. Doeg, 2 H. & N. 615. As Whistou, 4 A. & E. 607; 6 N. & M. 65, to other presumptions of license, see S. C. ; R. V. Whitney, 5 A. & E. 191 ; Seneca v. Zalinski, 15 Hun, 671. 6 N. & M. 562, S. C. ; R. o. Stainforth, 5 Tindal, C. J., Doe ». Cooke, 6 Bin. 11 a. B. 66. See, also, R. v. St. Mary 179 ; though see Little u.Wingfield, 11 Magdalen, 2 E. & B. 809 ; R. v. Broad- Jr. L. R. (N. S.) 63 et seq., as criticising hempston, 28 L. J. M. C. 18 ; 1 E. & above passage. Doe v. Gardiner, 12 E. 154, S. C. C. B. 319 ; Richardson v. Dorr, 5 Vt. 2 Booge' V. Parsons, 2 Vt. 456 ; Bet- 9 ; Warner v. Henby, 48 Peun. St. 187. tison V. Budd, 21 Ark. 678. See, also, Burke v. Hammond, 76 Penn. 3 Sumner v. Sebec, 3 Greenl. 223 ; St. 179 ; Wiustan v. Prevost, 6 La. An. Isbell 0. R. R., 25 Conn. 556; Farr v. 164; and oases cited supra, §§ 1347 Swan, 2 Penn. St. 245; Byington v. etseq. Allen, 11 Iowa, 3. Supra, § 645. e Lincoln t>. French, 105 U. S. 614 ; 526 CHAP. XIV.] PRESUMPTIONS : PAYMENT. [§1360. § 1359. When a deed or will, or other attested document,^ is thirty years old or upward, and is produced from the proper archives or other unsuspected depository, then Burden on such document proves itself, and the testimony of the sailing subscribing witness is not necessary, though he may be of over called by the contesting party to dispute genuineness.^ *g'^*y „ The same rule applies in the Roman law.' It has been argued that where a system of registry is established by law, no archives can be considered as giving the primd facie genuineness, except those which the statute indicates. This distinction, however, cannot be maintained, as registration does not supersede the com- mon law mode of proof, but merely dispenses with some of the requisites. And in any view, the question is one only of burden of proof. Documents so protected by age and safe-keeping are primd facie receivable in evidence ; and the burden is on him who would resist their admission. But when this duty has been discharged, then the question of admissibility is to be decided, as is already shown, on the proof and presumptions belonging to the concrete case.* TII. PRESUMPTION OF PAYMENT. § 1360. Aside from statutes of limitation, if a bond is permitted to remain without interest collected, or any recognition „ of indebtedness on the part of the debtor, for twenty tionofpay- 11 ,1 1 , , I ment after years, the law presumes payment, and proceeds to throw twenty the burden of proving non-payment on the creditor." The ^^^''^■ same presumption applies to tax claims ;° to judgments ;' to mort- Hurst V. McNiel, 1 Wash. C. C. 70 ; ^ Jaokson v. Wood, 12 Johns. K. Nieto V. Carpenter, 21 Cal. 455 ; Chiles 242 ; Bird v. Inslee, 23 N. J. Eq. 363 V. Sonley, 2 Dana, 21 ; Irvinu. Fowler, Delaney v. Rohinson, 2 Whart. 503 5 Robt. (N. Y.) 482; Nichols i. Gates, Morrison u. Funk, 23 Penn. St. 421 1 Conn. 318 ; English v. Register, 7 Ga. Eby v. Eby, 5 Barr, 435 ; King v. Coul- 387. ter, 2 Grant, 77; Reed v. Reed, 46 ' Best Ev. § 362. Penn. St. 242 ; Stockton v. Johnson, 6 2 Burling v. Patterson, 9 C. & P. 570 ; B. Mon. 409 ; Hale v. Pack, 10 W. Va. Talbot V. Hudson, 7 Taunt. 251 ; S. P. 145 ; Wellingham v. Chick, 14 S. C. Stockbridge v. W. Stockbridge, 14 93. See Whart. on Contracts, § 685. Mass. 256. See fully supra, § 732. ^ Hopkinton v. Springfield, 12 N. H. ' Endemann's Beweislehre, §§ 86, 328. 87. See supra, §§ 194, 703, 732. ' Kinsler v. Holmes, 2 S. C. 483. See, ' See fully supra, §§ 194, 703, 732, however, Daly v. Errioson, 45 N. Y. 733. 786. 527 § 1360.] THE LAW OF EVIDENCE. [book III. gages ;* and to other liens f but not to administration bonds.^ Whether payment can be inferred, within twenty years, is to be de- termined by all the evidence in the case.* It is so improbable that a creditor would permit an unpaid bond to lie fruitless for eighteen or nineteen years, that slight circumstances, in connection with such proof, will be sufficient as a presumption of fact to justify a jury in a conclusion of payment,^ though the mere lapse of time not amount- ing to twenty years, will not itself be a bar." It should be remem- bered that the period of twenty years may be made to give way to a positive statute defining limits.' 1 Jarvis v. Albro, 67 Me. 310 ; Inches V. Leonard, 12 Mass. 379 ; Earned v. Earned, 21 N. J. Eq. 245. 2 Boyd V. Harris, 2 Md. Ch. 210; Buchanan u. Rowland, 5 N. J. L. 721 ; Doe V. Gildart, 6 Miss. 606 ; Drysdale's Appeal, 14 Penn. St. 531. Potter V. Titcomh, 7 Greenl. 302. < Sadler v. Kennedy, 11 W. Va. 187. " Denniston v. McKeen, 2 McLean, 253 ; Rodman v. Hoops, 1 Ball. 85 ; Didlake v. Rohb, 1 Woods, 680 ; Hop- kins u. Page, 2 Erock. 20 ; Inches v. Leonard, 12 Mass. 379 ; Clark v. Hop- kins, 7 Johns. R. 556 ; Gray v. Gray, 2 Lansing, 173 ; Erubaker i^. Taylor, 76 Penn. St. 83; Usher u. Gaither, 2 Bar. & M. 457; Carroll v. Eovin, 7 Gill, 34 ; Boyd v. Harris, 2 Md. Ch. 210 ; Mileage v. Gardner, 33 Ga. 397 ; Downs V. Scott, 3 La. An. 278 ; Lyonii. Guild, 5 Heisk. 175. 6 Ibid. ; Born v. Pierpont, 28 N. J. Eq. 7. No presumption of payment of legacies is raised by the lapse of seven years from the time of tlieir payment. See Gould v. White, 26 N. H. 178 ; Strohn's Appeal, 23 Penn. St. 351 ; Erubaker v. Taylor, 76 Penn. St. 83. ' Grafton Bank u. Doe, 19 Vt. 463. "A legal presumption of payment does not, indeed, arise short of twenty years ; yet it has been often held that a less period, with persuasive circum- stances tending to support it, may be 528 submitted to the jury as ground for a presumption of fact. ' When less than twenty years has intervened,' says Chief Justice Gibson, ' no legal pre- sumption arises, and the case, not be- ing within the rule, is determined on all the circumstances ; among which the actual lapse of time, as it is of a greater or less extent, will have a greater or less operation.' Henderson v, Lewis, 9 S. & R. 384. In Ross v. McJunkin, 14 S. & R. 369, fourteen years was treated as having this effect. In Dia- mond V. Tobias, 2 Jones, 312, a time short of twenty years was allowed with circumstances, Mr. Justice Coulter re- marking : ' But exactly what these circumstances may be never has been and never will be defined by the law. There must be some circumstances, and when there are any it is safe to leave them to the jury.' In Webb w. Dean, 9 Harris, 29, the period fell short of sixteen years ; in Hughes v. Hughes, 4 P. F. Smith, 240, of nineteen years." Sharswood, J., Moore v. Smith, 81 Penn. St. 182. In this case, where an affi- davit of defence set forth that there had been a sheriff 's sale of the defendant's property, and distribution by the sher- iff, in which distribution plaintiffs had participated, although the defendant was not able to specify with certainty what amount plaintiffs had received, because he had not been able to inspect CHAP. XIV.] PRESUMPTIONS : PAYMENT. [§ 1362. § 1361. We must also observe that the presumption that a bond or specialty has been paid after a lapse of twenty years presump- " is in its nature essentially different from the bar im- *'™ *^''°™ •' _ lapse ot posed by the statute to the recovery of a simple contract time to be debt. The latter is a prohibition of the action; the guiehed former, prm^ facie, obliterates the debt. The bar (of byHmitZ- the statute) is substantially removed by nothing less than ti°°- a promise to pay, or an acknowledgment consistent with such a promise. The presumption is rebutted, or, to speak more accurately, does not arise, when there is aflSrmative proof, beyond that furnished by the specialty itself, that the debt has not been paid, or where there are circumstances that sufficiently account for the delay of the creditor. . . . The statute of limitations is a bar, whether the debt is paid or not. Not so where suit is brought on a sealed instru- ment. The fact of indebtedness is then in controversy, and the legal presumption of payment from lapse of time is nothing more than a transfer of the onus of proof from the debtor to the creditor. Within twenty years the law presumes the debt has remained un- paid, and throws the burden of proving payment upon the debtor. After twenty years the creditor is bound to show, by something more than his bond, that the debt has not been paid, and this he may do, because the presumption raises only a primd facie case against him."i § 1862. Payment, as has been already incidentally noticed, may be shown by extrinsic facts.* Among inferences which have been allowed weight in this connection, even after ^aybeki- the lapse of comparatively short periods, are, the pay- ferredfrom ment of intermediate debts ; as where tradesmen's bills, or tax bills, or claims for interest, or rent, of later date, are proved to have been paid,' and the possession of the document by which the debt the docket of the sheriff who made the lendy, 119 Mass. 449 ; Moore v. Smith, sale and distribution ; it was held that, 81 Penn. St. 182; Doty v. James, 28 in connection with the lapse of time Wis. 319 ; Whisler v. Drake, 35 Iowa, which had passed, there was enough to 103 ; Gamier v. Keuner, 51 Ind. 372. send the case to a jury. ' 1 Gilb. Ev. 309 ; Colsell v. Budd, 1 Strong, J., in Reed v. Reed, 46 1 Camp. 27; Hodgdou u. Wight, 36 Me. Penn. St. 242. See Connelly v. Mc- 326 ; Brewer v. Knapp, 1 Pick. 337 ; Kean, 64 Penn. St. 113 ; Birkey v. Attleboro v. Middleboro, 10 Pick. 378 ; McMakin, 64 Penn. St. 343. Rohbins v. Townsend, 20 Pick. 345 ; 2 See Connecticut Trust Co. v. Me- Crompton v. Pratt, 105 Mass. 255 ; VOL. II.— 34 529 § 1362.] THE LAW OF EVIDENCE. [book III. is expressed.' It has been doubted whether the presumption arising from possession of the document applies to bills produced by ac- ceptors without proof that they have been in circulation ;^ but the better view is that such proof is not necessary to give a primd facie case to the acceptor producing the bill.^ Possession of a note by the maker, however, when the maker has access to the papers of the payee, is not by itself proof of payment.^ Deckers. Livingston, 15 Johnsv R. 479. See Walton v. Eldridge, 1 Allen, 293, as showing rebuttlability of such pre- sumptions. ' Gibbon v. Featberston, 1 Stark R. 225 ; Shepherd v. Currie, 1 Stark. R. 454 ; Brembridge v. Osborne, 1 Stark. R. 300 ; Egg V. Barnett, 3 Esp. 196 ; Mills V. Hyde, 19 Vt. 59; Baring v. Clark, 19 Pick. 220 ; Garlock v. Goert- ner, 7 Wend. 198 ; Alvord v. Baker, 9 Wend. 323 ; Weidner v. Schweigart, 9 S. & R. 385 ; Zeigler v. Gray, 12 S. & R. 42; Rubey v. Culbertson, 35 Iowa, 264 ; Somervail u. Gillies, 31 Wis. 152 ; Peun V. Edwards, 50 Ala. 63 ; Lane v. Parmer, 13 Ark. 63 ; Union Canal Co. V. Loyd, 4 Watts & S. 393 ; Carroll v. Bowie, 7 Gill, 34; Ross v. Darby, 4 Munf. (Va.) 428. As limiting such pre- sumption, see Bender v. Montgomery, 8 Lea, 586. See Page v. Page, 15 Piok. 368 ; and see supra, §§ 1225, 1236. In Ritter v. Schenok, 101 111. 387, It was held that possession of a note by the payee is primd facie evidence of pay- ment. In Heald v. Davis, 11 Cush. 319, it was rightly held that, where there are two joint promisors, the pos- session of the security by one is not evi- dence in favor of the other. ' Pfiel V. Vanbatenberg, 2 Camp. 439 ; 2 Greenl. on Ev. § 439. 3 Connelly v. MoKean, 64 Penn. St. 118. In this case it was said by Shars- wood, J.: "It was expressly held by Lord Kenyon, in Egg v. Barnett, 3 Esp. Rep. 196, that to prove payment of a debt due by the defendant to the plain- 530 tiff, a check on a banker to his favor and indorsed by him was evidence to go to the jury of payment. Lord Ken- yon said : ' This is not merely using the name of the body of the draft, which is arbitrary and would of itself be certainly no evidence, but here the money has been actually received by the plaintiff and his servant, for their names are put on the backs of the checks as receiving the money. This is evidence to go to the jury.' See Gib- bons V. Featherstonhaugh, 1 Starkie, 225 ; Brembridge>, Osborne, Ibid. 300 ; Shepherd v. Currie, Ibid. 454 ; Patton V. Ash, 7 S. & R. 116 ; Weidner v. Schweigart, 9 Ibid. 385 ; Garlock v. Geortner, 7 Wend. 198 ; Alvord v. Baker, 9 Wend. 323 ; Hill v. Gayle, 1 Alabama, 275." * Grey v. Grey, 47 N. Y. 552. The point is thus argued by Peckham, J. : ' ' The question is then simply, is the production of this note by the defend- ant, under the facts of this case, evi- dence of its discharge, when it is proved not to have been paid or satis- fied ? I think it is not. We have been referred by the defendant's coun- sel to 1 Pothier on Obligations, 573, as precisely in point. He says that Boiseau holds that possession of the note affords a presumption of its pay- ment, but if he allege a release he must prove it ; for a release is a dona- tion, and a donation ought not to be presumed. Pothier differs, and thinks it should be presumed, iinless the cred- itor shows the contrary. But Pothier CHAP. XIV.] PRESUMPTIONS: PAYMENT. [§ 1363. Where the question is whether a particular workman has been paid his back wages, it is admissible to prove that other workmen employed by the defendant were paid by him every week, and that the defendant was never heard to complain of non-payment.^ The same presumption may be drawn from other habits of payment." § 1363. Payment, also, pro tanto, may be inferred from the fact that money or securities were paid by the debtor ception of Such presumption may be rebutted ^c^rmes. to the creditor.^ agrees with Boiseau, ' that if the debtor were the general agent or clerk of the creditor, having access to his papers, pos- session alone might not he a sufficient presumption of payment or release ; so if he was a neighbor, into whose house the effects of the creditor had been re- moved on account of a fire.' This latter proposition seems applicable to this case. Here the ease shows without contradiction that the defendant, liv- ing at home with his father, had a key that fitted his father's desk, where this note was kept. See, to the same effect, Kenney v. Pub. Ad., 2 Brad. 319. The two cases cited by the defendant's counsel, of Beach v. Endress, 51 Ibid. 470, and Edwards v. Campbell, 23 Barb. 423, were both oases of instru- ments delivered up as having been paid and to he cancelled. The circumstances of the surrender in each case were proved. In the latter case the surren- der of the note was made by the payee, eight days before her death, to a third person, to be delivered to the maker, saying, "^he had boarded him, etc., and he ought to have it, for it would not be more than right for him to have it.' Though the plaintiff had possession of the note at the trial, the Supreme Court held he was not entitled to recover, and reversed the judgment he had ob- tained." Peckham, J., Grey v. Grey, 47 N. Y. 554. See Bowman v. Teall, 23 Wend. 306 ; Allaire v. Whitney, 1 Hill, 484; Waydell v. Luer, 5 Hill, 448 ; S. C, 3 Den. 410 ; Hill v. Beebe, 13 N. Y. 556 ; Nesbitt v. Lockman, 34 N. Y. 169 ; Bedell v. Carll, 33 N. Y. 581. The possession of a lease by the lessor with the seals cut off is no evi- dence of a surrender by written instru- ment according to the statute of frauds. Doe V. Thomas, 9 B. & C. 288. ' Lucas V, Novosilieski, 1 Esp. 296 ; Sellen v. Norman, 4 C. & P. 80. 2 Evans v. Birch, 3 Camp. 10. 3 Welch V. Seaborn, 1 Stark. R. 474 ; Aubert v. Walsh, 4 Taunt. 293 ; Bos- well V. Smith, 6 C. & P. 60 ; Graham v. Cox, 2 C. & Kir. 702; Mountford ks), 601, 1131. RAILROAD TICKETS, explicable by parol, 926. RAILROAD TIME TABLE, may be proved by parol, 77. READING OF DOCUMENT, duty of party as to, 1243. when allowable to refresh his memory (see Memory), REALTY, when ownership of, is presumed, 1332. REASON coordinate with evidence, in constituting proof, 3-7, 278, 279, 1234, 1239. REBUT AN EQUITY, parol evidence admissible to, 973f RECALLING WITNESSES, discretionary power as to, 574. RECEIPT, may be proved by parol, though there be a written paper, 77. may be varied by parol, and is only prima facie evidence of payment, 1064, 1130, 1365. exceptions as to insurance receipts, 1065. recital of in deed open to dispute, 1042. of goods, when taking sale out of statute of frauds, 875. of part payment, effect of on statute of limitations, 229, 1115. thirty years old, requires no proof, 703. RECITALS, effect of (see Deeds), 1039-1042. do not bind third parties, 1041. in public statutes and documents, 635, 638. of purchase-money, 1042. in private acts, 636. injudicial documents and records, 819-823. in family deeds, as to pedigree, 210. in deeds and leases, as to reputation, 194. RECOGNITION of family as to marriage and pedigree, 207-212. of agent by principal, 1081, 1151. of ofScial character of party by treating him as entitled thereto, 1153. 621 INDEX. RECORDED DEEDS, exemplifications admissible, 115-118. RECORDING ACTS, how far making books and exemplifications evidence, 111. RECORDS (see Judgments and Judicial Records), •758-84:1. cannot be proved by parol, 980. registries. See 639, 660. of courts of justice are presumed regular, 1302. of appointment need not necessarily be made, 1315. ■when lost, may be proved by parol, 136, 137. but ordinarily cannot be proved by parol, 63. nor be varied by parol, 980. import verity, 982. RECTIFICATION OP CONTRACTS, 1019, 1023. REFEREE, admissions of, bind principal, 1190. REFORMING CONTRACTS, proceedings in relation to, 1019, 1023. REFRESHING MEMORY of witness (see Memory), 516-526. hearsay admissible for this purpose, 257. REGISTRIES, PUBLIC, 639, 660. Municipal akd Administrative. OfficiaLregistry admissible when statutory, 639. ancient, prove themselves, 113. so of records of public administrative officer, 640. so of records of municipal councils and town meetings, 641. Set' 293 a. such record includes its incidents, 642. record must be of class authorized by law, 643. it must be identified and be complete, 644. it must indicate accuracy, 645. it must not be secondary, 646. books and registries kept by public institutions admissible, 647. log-book admissible under act of Congress, 648. [For judical records, see infra, 758.] Registries of Birth, Marriage, and Death. Parish records generally admissible, 649. registries of marriage and death admissible when duly kept, 653. so when kept by deceased persons in course of their duties, 654. registry only proves facts which it was the duty of the writer to record, 655. entries must be at first hand and prompt, 656. certificate at common law inadmissible, 657. and so of copies, 658. family records admissible to prove family events, 660. REGISTRIES OF DEEDS, when copies (see Copy), 115. REGULARITY, presumptions of. marriage presumed to be regular, 1297. legitimacy as a rule presumed, 1298. 622 INDEX. REGULARITY— CconitTiuerf). regularity in negotiation of paper presumed, 1301. judicial proceedings, 1302. patent defects cannot be thus supplied, 1304. in error necessary facts will be presumed, 1305. so in military courts, 1306. so in keeping of records, 1307. but jurisdiction of inferior courts is not presumed, 1308. legislative proceedings, 1309. proceedings of corporation, 1310. dates will be presumed to be correct, 1312. formalities of document presumed, 1313. officer and agent presumed to be regularly appointed, 1315. regularity imputed to persons exercising profession, 1317. acts of public officer presumed to be regular, 1318. burden on party assailing public otficer, 1319. regularity of business men presumed, 1320. non-existence of a claim inferred from a Bon-claimer, 1320 a. agreement to pay inferred from reception of service, 1321. and so from receipt of goods, 1322. due delivery of letters presumed, 1323. delivery to be inferred from mailing, 1323. and at usual period, 1324. post-mark primd facie proof, 1325. delivery to servant is delivery to master, 1326. presumption from ordinary habits of forvirarding, 1327. letter in answer to one mailed presumed to be genuine, 1328. but not so as to telegrams, 1329. presumption from habits of forwarding letters, 1330. RELATIONS, declarations of admissible in pedigree, 202. RELATIONSHIP (see Pedigree^ RELEASE by nominal party, effect of on real party, 1207. releases cannot be contradicted by parol, 1063. RELEVANCY is that which conduces to proof of pertinent hypothesis, 20. whatever so conduces is relevant, 21. process one of logic, applicable to all kinds of investigation, 22. so in questions of identity, 24. Sir J. Stephen's theory of relevancy, 26. criticism of this theory, 26. conditions of an hypothesis whose proof isTelevant may be prior, con- temporaneous, or subsequent, 27. non-existence of suph conditions is also relevant, 28. collateral disconnected acts generally irrelevant, 29. scienter may be proved inductively by collateral facts, 30. so may intent or malice, 31. scienter may be proved inductively in libel and slander, 32. 623 INDEX. RELEVANCY— (con(m«erf). so in fraud, 33. so in adultery and other sexual offences, 34. so may good faith, 35. so may prudence and wisdom, 36. so in questions of identity and alibi, 37. system may be proved to rebut hypothesis of accident or casus, 38. from one part similar qualities of another part may be inferred, 39, 268, 448, 1346. so in questions of negligence, 40. evidence of prior firings, admissible against railroad for negligent firing, 42. when system is proved, conditions of other members of the same system may be proved, 44. ownership may be inferred from system, 45. but system must be first shown, 46. character not relevant in civil issue, 47. when character is at issue, general reputation can be proved, 48. character is convertible witji reputation, 49. may be proved to increase or mitigate damages, 50. subornation or tampering with evidence may be proved, 1265 ff. in suits for seduction, bad character of plaintiff may be shown, 51. so in suits for breach of promise, 52. slander or libel, 53. malicious prosecution, 54. burden is on party assailing character, 55. particular facts cannot be put in evidence, 56. usage admissible to prove diligence, 57. RELIGIOUS BELIEF, as affecting witnesses (see Witnesses), 396. when witness can be compelled to answer questions as to, 396, 543. REMAINDERMAN, not affected by admissions of tenant for life, 1161. REMOTENESS, presumption neutralizes, 1226. RENT, inferences from payment of, 1362-1364. when cannot be proved by parol, 77, 78. when not to be varied by contemporaneous oral agreement, 854-856. REPLIES (see Answers) . REPORTS of committees are hearsay as to strangers, 175. of public officers, when admissible, 638, 639. REPOSITORY (see.Custody). REPRESENTATIONS (see Admissio,is). REPRESENTATIVE (s(je Agent, Executor, Trustee), admissions of, may bind constituent, 1209. inoperative before he is appointed, 1210. and so after he leaves office, 1211. REPUTATION, when admissible as to character of party (see Character). of witnesses (see Character'). to prove birth, 208. 624 INDEX. REPUTATION— (con(inMed). when provable by tradition, 187. to prove marriage, 224. to prove partnership, 78. to prove adultery, 225. exception in criminal issues, 225. in issues of general interest (see General Interest), 185-194. pedigree (see Pedigree), 201-225. when character is at issue, as in liability for servant, 48. when evidence to bring home knowledge to a party, 252. verdicts, judgments, etc., when admissible, 200. of community, when admissible to explain state of mind, 255. RESCINDING CONTRACT, evidence received as to, 927, 1017. RES GESTAE, what constitute (see Hearsay). admissible though hearsay, 258, 1102. must be instinctive, 259. exclamations of bystanders, 260. no absolute rule as to time, 261 . coincident business declarations admissible, 262, 1170. rule as to explanation of title, 1156. and so of declarations coincident with torts, 263, 1174. what is done or exhibited at such a time may be proved, 284, 1102. declarations inadmissible if there be opportunity for concoction, 265, 1180. declarations inadmissible to explain inadmissible acts, nor are declarations admissible without acts, 266. inadmissible if the witness himself could be obtained, 267. but narratives of the past to be excluded, 265, 1180. witnesses may be examined as to, 544. RESIDENCE presumed continuous (see Domicile), 1285. RES INTER ALIOS ACTAE inadmissible, 173, 175, 176, 760, 1041. RES JUDICATA (see Judgments). RESULTING TRUST (see Trusts), 1035. RETURNS, by officers, when evidence, 833'a, 834. REVOCATION OF WILL, how effected (see Statute of Frauds), 892-896. RIGHT OF COMMON, provable by tradition, 185. RIGHT OF WAY (see Way), 1346. RIGHTS, what provable by reputation (see Hearsay), 185-187. RINGS, inscription on, evidence in pedigree, 220. RITE ESSE ACTA, presumption as to (see Presumption), 1297-1330. RIVER, presumption as to ownership of soil of, 1341. ROAD, law of the, judicially noticed, 331. presumptions as to, 1339. ROGATORY LETTERS, 609, 609 a. RULES OF COURTS, when judicially noticed, 324. RUMOR, when admissible (see Hearsay; Reputation), 253, 254. VOL. II.— 40 625 INDEX. SALES OF GOODS must be evidenced by writing, under statute of frauds, unless there be part payment, or earnest. Delivery and consideration must appear, 869. other material averments must be in writing, 870. but may be inferred from several documents, 872. place of signature immaterial, and initials may suffice, 873. ■when main object is sale of goods, writing is necessary, 874. acceptance and receipt of goods take sale out of statute, 875. acceptance by carrier or expressman is not acceptance by vendee, 876. partial payment may take sale out of statute, 877. SAILORS admissible as experts, 444, 452. SANITY, prima facie presumed (see Insanity), 1252-1254. opinions admissible respecting, 451. letters to party inadmissible to prove, unless he has answered or acted on them, 175. effect of inquisition of lunacy as to, 812, 1254. burden of proof as to, 372. SCIENCE, experts may be examined as to questions of (see Experts), 443. SCIENTER, party may be examined as to, 482, 508. may be proved inductively, 30. presumptions as to, 1241-1243. SCIENTIFIC BOOKS, when admissible, 665-667. SCIENTIFIC RESULTS, when judicially noticed, 333. SCIENTIFIC A¥ITNESSES (see Experts). SCRIVENER, professional communications to, when privileged, 181. SCROLL, when to be substituted for seals, 694. SEAL OF COURT, essential to exemplification under act of Congress, 109. SEALS, what judicially noticed, 318, 695. what is due sealing, 692, 693. when due sealing will be presumed, 1314. impeaching of sealed documents, 1018, 1045. of corporations, 735. SEAMEN, admissible as experts, 444, 452. SEARCH, for writings, sufficiency of, 144. what is requisite to admit secondary evidence (see Secondary Evidence), 129, 150. for attesting witness, what sufficient, 726-728. SEARCHES OF DEEDS, admissible, 126. SEA-SHORE, presumption as to ownership of, 1341, 1342. SEASONS, alterations of, judicially noticed, 334. registry of, when admissible, 647. SECONDARY EVIDENCE cannot be received while primary is attainable by party (see Primariness) , 60-76. otherwise when such evidence is as primary as written, 77. where the party charged admits the contents of the document, 79. presumption from non-production of originals, 1270, 1271. 626 INDEX. SECONDARY EVIDENCE— (coniinued). summaries of voluminous documents can be received, 80. so of parol evidence of things fleeting and unproducible, 81. so of documents which cannot be brought into court, 82. statute may require marriage to be proved by record, 83. by private international law marriage may be proved by parol, 84. in charges of penal marriage strict proof is required, 85. Lost Instkuments may be so proved. Lost or destroyed documents may be proved by parol, 129. so of papers out of power of party to produce, 130. accidental destruction of paper does not forfeit this right, otherwise when there is fraud, 132 copies of copies not receivable, 133. of lost or unproducible, abstracts and summaries may be received, 134. so as to records, 135. so as to depositions taken in same case, 137. so as to wills, 138. witness of lost document must be sufficiently acquainted with original, 140. court must be satisfied that original is non-producible, and would be evi- dence if produced, 141. See 104 a. loss may be inferentially proved, 142. or by admission of opponent, 143. probable custodian must be inquired of, 144. search in proper places must be proved, 147. degree of search to be proportioned to importance of document, 148. peculiar stringency in case of negotiable paper, 149. third person in whose hands is document must be subpoenaed to produce, 150. party may prove loss by affidavit, 151. So when Document is in Hands op Opposite Party. Notice to produce is necessary when document is in hands of opposite party, 152. after refusal secondary evidence can be given, 153. notice must be timely, 155. notice to produce does not make a paper evidence, 156. party refusing to produce is bound by his refusal, 157. presumption from non-production, 1270, 1271. after paper is produced, opposite side cannot put in secondary proof, 158. notice not necessary for document on which suit is brought, 159. nor where party is charged with fraudulently obtaining or withholding document, 160. nor of documents admitted to be lost, 161. nor of notice to produce, 162. collateral facts as to instrument may be proved without notice, 163. 627 INDEX. SECRETS OF STATE privileged, 604. SEDUCTION, in issues of, when character or conduct of party seduced is relevant, 51. party seduced may be cross-examined as to prior improprieties, 51, 542. SELLER is estopped from disputing sale, 1147. SENTENCE (see Judgments). SEPARATE examinations of witnesses, practice as to, 491. SERVANT, when binding master by warranty, 1085, 1170-1173. admission by, when evidence against master (see Admissions), 1181. when hiring of, is treated as for a year, 883. proof of fitness of, in suits against master for his misconduct, 48. SERVICE, of subpoena, what is sufficient, 379. of notice to produce (see Ifoiice to Produce), 152-160_. SERVICES and proof of value of, 446. SET-OFF, when barred by judgment, 789-792. SEXUAL INTERCOURSE between husband and wife, presumptions as to, 1298. boy when presumed incapable of, 1271, 1272. SEXUAL OFFENCES, proof of, 34, 225, 1246 (see Adultery). SHERIFF'S DEED. See 833 a, 834. SHERIFF'S RETURN (see Returns). SHIP, loss of, when presumed, 1283. SHOP-BOOKS, admissible when verified by oath of party, 678. change of law in this respect by statutes making parties witnesses, 679. not necessary that party should have independent recollection, 680. charge must be in party's business, 681. book must be one of original entry, 682, entries must be contemporaneous, 683. book must be regular, 684. charge must relate to immediate transaotioh, 685. such books may be secondary, 686. when plaintifi"'s case shows transfer to ledger, the ledger must be pro duced, 687. writing of deceased party may be proved, 688. SICKNESS may be proved by exclamations of pain, 268. of attesting witness, effect of, 728. SIGNATURES, how proved (see Handwriting). when necessary by statute (see Statute of Frauds). what judicially noticed (see Judicial Notice). SILENCE, when operating as an admission (see Admissions), 1136-1155. SIMILARITY, a basis for induction, 39, 1284-1296. SIZE, opinion as to, admissible, 512. SKILLED WITNESSES (see Experts). SLANDER (see Libel), proved inductively, 32, 53. plaintiff''g good character inadmissible, 47, 53. SLEEP, assent not presumed during, 1138. 628 INDEX. SOCIAL LAWS, when judicially noticed, 335. SOCIETIES, minutes of (see Corporation), 1341. SOIL, under water presumed to belong to owner of land adjacent, 1351. See 1339. SOLD NOTE (see Bought and Sold Notes). SOLEMNITIES of document (see Handwriting, Seal), 1313. SOLEMNIZATION of marriage, when presumed regular, 1297. SOLICITOR (see Attorney). SOLVENCY, reputation concerning, when admissible, 35, 253. presumed continuous, 1289. SOVEREIGN, grant from when presumed, 1348. proclamations of when judicially noticed, 317j seal of judicially noticed, 318. prior judicial notice taken of laws of, 291. foreign, existence of, judicial notice taken of, 323. SPECIALTIES (see Bonds, Deeds). SPECIFIC PERFORMANCE, in suit for, evidence, 1017, 1039. SPELLING, proof of handwriting by idiosyncrasies of, 706-718. SPOLIATION, party tampering with evidence chargeable with conse- quences, 1265. so of party holding back evidence, 1266. STAMP, when necessary to document, 697. STATE, acts of, when judicially noticed (see Judicial Notice). rules of evidence, how affecting federal courts, 1 6 . secrets of, privileged (see Privileged Communications), 604. STATES, foreign (see Foreign States). STATUS, decrees as to not necessarily ubiquitous, 817. effect of judgments as to, 815. STATUTE OF FRAUDS. General Considerations. Statutory assignments of probative force, 850. error in this respect of scholastic jurists, 851. intensity of proof cannot be arbitrarily fixed, 852. relations in this respect of statute of frauds, 853. Transfers op Land. Under statute parol evidence cannot prove leases of over three years, 854. estates in land can be assigned only in writing, 856. surrender by operation of law excepted, 858. such surrender includes act by landlord and tenant inconsistent with ten- ant's interest, 860. mere cancellation of deeds does not revest estate, 861. assignments by operation of law excepted, 862. in other respects writing is essential to transfer of interests in lands, 863. as to partnership and corporation realty, 864. how far seal is not necessary, 865. interest in lands does not include perishing severable crops and fruit, 866. 629 INDEX. STATUTE OF 'FRA.V'DS— {continued). fixtures -when part of realty, 866 a. agent's authority limited by statute, 868. [As to equitable modifications of statute in this respect, see infra, 903 et seq-l Sales of Goods. Sales of goods must be evidenced by writing, unless there be part payment or earnest. Delivery and consideration must appear, 869. other material averments must be in writing, 870. but may be inferred from several documents, 872. place of signature immaterial, and initials may suffice, 873. when main object is sale of goods, writing is 'necessary, 874. acceptance and receipt of goods take sale out of statute, 875. acceptance by carrier or expressman is not acceptance by vendee, 876. partial payment may take sale out of statute, 877. Guarantees. Guarantees must be in writing, 878. statutory restriction relates to collateral, not original promises, 879. in such case indebtedness must be continuous, 880. Marriage Settlements. Marriage settlements must be in writing, 882. Agreements in Fhturo. Agreements not to be performed within a year, must be in writing, 886. Wills. Wills must be executed conformably to statute. English Will Act of 1838, 884. provisions, in this respect, of statute of frauds, 885. distinctive adjudications under statutes, 886. ' must be acknowledgment by testator, 887. this may be inferred, 888. testator may sign by a mark, or have his hand guided ; and witnesses may sign by initials, and without additions, 889. imperfect will may be completed by reference to existing document, 890. revocation cannot be ordinarily proved by parol, 891. revocation may be by subsequent will, 892. proof inadmissible to show destruction out of testator's presence, 893. to revocation intention is requisite, and burden is on contestant, 894. contemporaneous declarations admissible, 895. testator's act must indicate finality of intentions, 896. so of cancellation and obliteration, 897. parol evidence admissible to show that destruction was intentional, or was believed by testator, 899. parol evidence admissible to negative cancellation, 900. Equitable MoDiricATiONS of Statute. parol evidence not admissible to vary contract under statute, 901. parol contract cannot be substituted for written, 902. 630 INDEX. STATUTE OF FRAUDS— (conitnueof). conveyance may be shown by parol to be in trust or in mortgage, 903. performance, or readiness to perform, may be proved by way of accord and satisfaction, 904. contract may be reformed on certain conditions, 905. waiver and discharge of contract under statute can be proved by parol, 906. equity will relieve in case of fraud, but not where fraud consists in plead- ing statute, 907. but will where statute is used to perpetuate fraud, 908. so in case of part-performance, 909. but payment of purchase-money is not enough, 910. where written contract is prevented by fraud, equity will relieve, 911. parol contract admitted in answer may be equitably enforced, 912. Conflict op Local Laws. Lex fori when peremptory must prevail, 913. STATUTES, proof of (see iaros), 287, 318. cannot be varied by parol, 980 a. public, judicially noticed, 289. when proved by printed volume, 289. private acts, how proved, 292. presumption of due passage of, 1309. courts will determine as to passage of, 290. construction of question forjudge, 980. foreign statutes, how proved, 300. public statutes prove their recitals, 635. otherwise as to private statutes, 636. journals of legislature proof as to recited facts, 637. a new statute presumes a change in old law, 1260. in interpreting, whole context must be considered, 980 a. parol evidence inadmissible to explain, 980 a. judicial notice as to passage of, 290. STEWARD, entries of, when deceased, how far admissible, 231, 234-247. STOCK, effect of contract for sale of, under statute of frauds, 8&9-872. STRANGER, alterations made by in documents, when fatal, 627. judgments, when evidence against, 760. judgments, in rem, effect of as to, 814. probate and inquisitions, effect of evidence as to, 810-812. estoppels not binding, 760, 1083-1085, 1143. declarations by, when evidence (see Admissions), 175. STRENGTH, opinion as to admissible, 512. SUBORNATION of witnesses, 1265 ff. SUBPCENA, how enforcing attendance of witnesses (see Witnesses), 377-379. how enforcing the production of documents, 150, 377. may be sealed in blank, 632. how service must be made, 379. when witness must answer, though he has not been served with, 378. 631 INDEX. SUBSCRIBING WITNESS (see Attesting Witness, Witnesses), 724, 737, 868 et seq. SUBSCRIPTIONS cannot be modified as to third parties by parol, 1068. SUBSTANCE of lost document only need be reproduced, 154. and so of parol statements, 514. SUCCESSOR bound by predecessor's admissions, 1156-1163. SUFFERING may be proved by instinctive declarations, 268, 269. SUICIDE, presumption against, 1247. SUNDAY, coincidence of days of the months with, judicially noticed, 331, 332-335. SUPPORT, right to, from soil or lower stories (see Presumptions), 1346. SUPPRESSION OF EVIDENCE, presumption from, 1266. SURETY, how affected by admission of principal, 1212. effect on, of judgment against principal, 770, 823. suretyship in writing may be explained by parol, 952. SURGEON (see Experts), admissible as expert, 441. not privileged as witness, 606. SURPLUSAGE, when to be rejected from description, 945, 1004. SURRENDER of lease, by operation of law, what (see Statute of Frauds), 858. SURVEYORS, notes and declarations of, when admissible, 248. SURVEYS, when evidence, 668-670. SURVIVORSHIP, presumptions respecting, 1280. SYMPTOMS, declarations as to, admissible, 268, 1346. SYSTEM, admissible to sustain an inference as to particulars, 39, 268, 448, 1293, 1346. TAGS, provable by parol, 81. TALLIES, admissible as proofs, 614. TAMPERING WITH EVIDENCE, 1265. TAXATION cannot be proved by parol, 65. TAX BOOKS, when admissible, 640. TAXES, paying, prima facie proof of possession, 733. inference from, 1291. presumption of payment of, 1360. TAX SALE, must be proved by record, 63. See 1353. TECHNICAL TERMS, in writing may be explained by parol, 939, 972. TELEGRAM, may constitute contract, 617. may admit indebtedness, 1128. ' under statute of frauds, 617, 872. not privileged, 595. original must be produced, 76, 1128. may be explained by parol, 926. presumption as to delivery of, 1329. TENANCY, fact of, provable by parol, without producing lease, when, 77. when writing is necessary to, 854. 632 INDEX. TEN ANC Y— (coniinwed) . how to be surrendered by operation of law (see Statute of Frauds), 858. incidents annexed to by usage, 969. TENANT, estopped from disputing landlord's title (see Estoppel), 1149. admissions by landlord, how far evidence against, 1159. admissions by, when admissible against landlord, 1161. surrendering by operation of law (see Statute of Frauds), 858. TERMS OP ART, explanation of, 961, 972. TESTAMENT (see Will). TESTATOR, intention of, when admissible (see Wills), 1001, 1010. TESTIMONY, bills to perpetuate, 180. THANKSGIVING, days of, judicially noticed, 331-335. TICKETS, applicable by parol, 927. TIMBER, when within statute of frauds, 866. TIME may be inferred from circumstances, 979. inference of law as to, 1312. opinion as to admissible, 512. in contract, when can be varied by parol, 969, 977, 1015, 1026. calculation and course of judicially noticed, 332. lapse of, effect of, 261, 1338. of gestation, when judicially noticed, 334. TIME-TABLE, facts may be proved by parol, 77. TITLE, presumptions as to, 1331. presumption from possession, 1331. as to realty, 1332. such possession must be independent, 1334. as to personalty, 1336. policy of the law favors presumptions from lapse of time, 1338. soil of highway presumed to belong to adjacent proprietor, 1339. so of hedges and walls, 1340. soil under water presumed to belong to owner of land adjacent, 1341. so of alluvion, 1342. tree presumed to belong to owner of soil, 1343. so of minerals, 1344. easements to be presunied from unity of grant, 1347. where title is substantially good, and there is long possession, missing links will be presumed, 1347. grants from sovereign will be so presumed, 1348. grant of incorporeal hereditament presumed after twenty years, 1349. so of intermediate deeds and other procedure, 1352. instances of links of title so supplied, 1353. links of record may be thus supplied, 1354. and so as to licenses, 1356. title to justify such presumption must be substantial, 1357. presumption is rebuttable, 1358. burden is on party assailing documents thirty years old, 1359. 633 INDEX. TOMBSTONE, inscriptions on, when evidence in pedigree, 220. TORTS, burden of proof as to in, 358. admission of one tort-feasor not necessarily evidence against others, 1204. effect of judgment against one on others, 773. payment of money into court in suit for, how far an admission, 1114- 1115. TOWN MEETINGS, how far parol evidence applicable to, 77. proceedings of, presumed to be regular, 1310. TOWN RECORDS, cannot be varied by parol, 987. are admissible evidence, 641. TRADE, usage of, may explain writing, when (see Parol Evidence), 958- 971. TRADESMEN, entries by, in books of original entries, when evidence, 678- 686. TRADITION, family, in matters of pedigree (see Pedigree'), 201-215. in matters of public interest (see Hearsay), 185-193. TRANSCRIPTS OF RECORDS, 96. TRANSLATION (see Interpretation). TREATIES, judicial notice of, 293 b. TREATISES, when admissible, 665-667. TREES, presumption of ownership in, 1343. when within § 4 of statute of frauds, 866. TRESPASS (see Torts). TROVER, parol description admissible, though demand in writing also made, 77, 78. for documents, notice to produce unnecessary, 159. judgment for defendant in, when bar to action of assumpsit, 779. TRUSTEES, admission by one, when receivable against others, 1199. admissions by cestui que trust, when receivable against, 1213. when presumed to have conveyed legal estate to real owner, 1347. presumption against deed of gift to, 1248. TRUSTS, creation of, must be proved by writing, under statute of frauds, 903. effect of letter acknowledging, 903. resulting trusts may be proved by parol, 903, 1038. so as to other trusts, 903, 931a, 1031, 1038. TRUTH, real and not formal, the object of judicial inquiry, 2, 1228-1231. witness's character for, how tested, 262. UNDERWRITER (see Insurance). UNDUE INFLUENCE (see Wills), 1009. UNIFORMITY, presumptions of, 1285. UNITED STATES COURTS, distinctive rules of evidence as to, 16. UNITY of origin, presumption from, 39, 268, 448, 1346. USAGE, when provable by tradition, 188, 189. cannot be proved to vary dispositive writings, 958. 634 INDEX. USAGE — (continued). otherwise in case of ambiguities, 961. is to be brought home to the party to whom it is imputed, 962. may be proved by one witness, 964. is to be proved to the jury, and must be reasonable, and not conflicting with lex fori, 965. how distinguishable from custom, 965. when no proof exists of, meaning is for court, 966. power of agent may be construed by usage, 967. received to explain broker's memoranda, 968. customary incidents may be annexed to contract, 969. course of business admissible in ambiguous cases, 971. of what customs courts take notice, 331. when persons are presumed cognizant of, 1243. admissible to prove diligence in suits for negligence, *fr. 5^7' VALUE, may be proved by persons familiar with, 447, 448. may be proved by hearsay, 255, 449. is to be inferred from circumstances, 1290. VALUE OF SERVICES, 446. market value. See 446. VARIANCE between document produced and that described in notice, 152- 156. VARIATION BY PAROL (see Parol Evidence), 920 et seq. VELOCITY, opinion as to admissible, 512. VENDEE, cannot dispute vendor's title (see Purchaser), 1149. VENDOR, admission by, when evidence against purchaser, 1163, 1167. cannot usually deny title of vendee, 1147, 1148. when bound to warranty of title, 1147. VERACITY, of witness, how impeached, 562. how sustained, 569. want of, effect of, on credibility, 404. VERDICT, jurors cannot prove misconduct in regard to, COl. when evidence as to reputation, 200, 827, 831. when evidence as to other matters, 819 ff. presumption of validity of, 1302. inadmissible without record, 831. without judgment is no bar, 781. VESSEL, presumption as to ownership of, 1336. VIEW, of vicinage or of chattel, by jury, allowed, 345-347. VOIR DIRE, examination as to (see Witnesses), 492. WAIVER of written contract, when parol evidence admissible to prove (see Parol Evidence), 1017-1025. of deed, can only be effected by deed (see Deeds), 108. WALL, ownership of, presumptions relating to, 1340. 635 INDEX, WAR, fact of when judicially noticed, 339. when to be shown by recital in statute, 635. articles of, how proved, 297. WARD (see Guardian). WAREHOUSEMAN, cannot deny title of bailor, 1149. delivery of goods to, when acceptance within statute of frauds, 875. WARRANTY, by servant, when evidence against master, 1085, 1170, 1173. when annexed to contracts of sale, 969. WAY (see Highway). when public may be explained by reputation, 185-190. hearsay inadmissible to prove private right of, 187. WAY-GOING CROP, usage as to, when receivable to explain lease, 969. WEATHER, registry of, when admissible, 647. when judicially noticed, 334. "WEEK," meaning of, 961 a. WEIGHTS AND MEASURES, judicially noticed, 331-335. opinion as to, admissible, 512. WIFE (see Husband and Wife, Married Woman). WILLS, parol evidence how far admissible to explain (see Parol Evidence). cannot be varied by parol. Intent must be drawn from writing, 992. when primary meaning is inapplicable to any ascertainable object, evi- dence of secondary meaning is admissible, 997. when terms are applicable to several objects, evidence admissible to dis- tinguish, 997. in ambiguities, all the surroundings, family, and habits of the testator may be proved, 998. all the extrinsic facts are to be considered, 999. when description is only partly applicable to each of several objects, then declarations of intent are inadmissible, 1001. evidence admissible as to other ambiguities, 1002. erroneous surplusage may be rejected, 1004. patent ambiguities cannot be resolved by parol, 1006. ademption of legacy may be proved by parol, 1007. parol proof of mistake of testator inadmissible, 1008. fraud and undue influence may be so proved, 1009. testator's declarations primarily inadmissible to prove fraud or compul- sion, 1010. but admissible to prove mental condition, 1011. parol evidence inadmissible to sustain will when attacked, 1012. probate of, only jorma facie proof, 1013. thirty years old require no proof, 703, 1358. must be executed conformably to statute. English Will Acts, 884. provisions, in this respect, of statute of frauds, 885. distinctive adjudications under statutes, 886. must be acknowledged by teStator, 887. this may be inferred, 888. 636 INDEX. WILLS — (continued) . testator may sign by a mark, or have his h,and guided ; and witnesses may sign by initials, and without additions, 889. imperfect will may be completed by reference to existing document, 890. revocation cannot be ordinarily proved by parol, 891. may be by subsequent will, 892. proof inadmissible to show destruction out of testator's presence, 893. to revocation intention is requisite, and burden is on contestant, 894. contemporaneous declarations admissible, 895. testator's act must indicate finality of intentions, 896. so of cancellation and obliteration, 897. parol evidence admissible to show that destruction was intentional, or was believed by testator, 899. parol evidence admissible to negative cancellation, 900. when lost may be proved by copy, 138. foreign, how proved, 119. when certified copies are evidence, 66. proving of wills generally (see Probate). WINE, when courts will take notice of as intoxicating, 336. WITHHOLDING EVIDENCE, presumption arising from, 1266. WITHOUT PREJUDICE, offers made, when admissible, 1090. WITNESSES. PiSocuKiNG Attendance. Duty of all persons cognizant of litigated facts to testify, 376. subpoena the usual mode of enforcing attendance, 377. witness may decline answering unless subpoenaed, 378. subpoena must be personally served, 379. fees allowable to witness, 380. expenses must be prepaid, 381. witness refusing to attend is in contempt, 382. attachment granted on rule, 383. habeas corpus may issue to bring in imprisoned witness, 384. witness may be required to find bail for appearance, 385. Oath and its Incidents. Oath is an appeal to a higher sanction, 386. witness is to be sworn by the form he deems most obligatory, 387. affirmation may be substituted for oath, 388. Privilege fbom Arkest. Witness not privileged as to criminal arrest, but otherwise as to civil, 389. may waive his privilege, 390. Who are Competent Witnesses. Competency is for court, 391. presumed, 392. ordinarily competency should be excepted to before oath, 393. distinction between primary and secondary does not apply to witnesses, 394. 637 INDEX. WITNESSES— {continued). atheism at common law disqualifies, 395. evidence may be taken as to religious belief, 396. infamy at common law disqualifies, 397. removal of disability by statute, 397. admissibility of infants depends on intelligence, 398. deficiency of percipient powers, if total, excludes, 401. the same tests are applicable to insanity and intoxication, 402. witness may be examined by judge as to capacity, 403. credibility depends not only on veracity but on competency to observe, 404. incapacity to relate may aflfect competency, 405. deaf and dumb witnesses not incompetent, 406. interpretation admissible, 407. bias to be taken into account in estimating credibility, 408. and so of want of opportunities of observation, 409. and so uncertainty of memory, 410. want of circumstantiality a ground for discredit, 411. falsum in uno, falsum in omnibus, not universally applicable, 412. literal coincidence in oral statements suspicious, 413. one witness generally enough to prove a case, 414. affirmative testimony stronger than negative, 415. when credit is equal, preponderance to be given to numbers, 416. credibility of witnesses is for jury, 41 7. intoxicated witnesses may be excluded, 418. interest no longer disqualifies, 419. counsel in case may be witnesses, 420. Distinctive Rules as to Husband and Wife. valid marriage must be proved, 421. but when proved excludes at common law, except as to violence, 422. may be witnesses where a party could be witness for himself, 423. or in cases of agency, 423 a. may be witnesses to prove marriage collaterally, 424. caimot be compelled to criminate each other, 425. distinctive rules as to bigamy, 426. cannot testify as to confidential relations, 427. wife cannot prove non-access, 608. consent will waive privilege, 428. efiect of death and divorce on admissibility, 429. general statutes do not remove disability, 430. otherwise as to special enabling statutes, 431. husband and wife may be admitted to contradict or impeach each other, 432. in divorce cases testimony to be carefully weighed, 433. 63« INDEX. WITNESSES— (coniinucrf). Distinctive Rules as to Experts. Expert testifies as a specialist, 434. may be examined as to laws other than the lex fori, 435. but cannot be examined as to matters non-professional, or of common knowledge, or belonging to jury, 436. question of admissibility is for court, 437. expert may be examined and cross-examined as to knowledge and skill, 438. expert must be skilled in his specialty, 439. experts may give their opinion as to conditions connected with their specialties, 440. physicians and surgeons are so admissible, 441. so of lawyers, 442. so of scientists, 443. so of practitioners in a specialty, 444. so of artists, 44,5. so of persons familiar with a market, 446. opinion as to value admissible, 447. generic value admissible in order to prove specific, 448. proof of market value may be by hearsay, 449. and so as to damage sustained by property, 450. on questions of sanity, not only experts but friends and attendants may be examined, 451. expert may be examined as to hypothetical case, 452. may explain his opinion, 453. his testimony to be jealously scrutinized, 454. especially when ex parte, 455. he may be specially feed, 456. cannot interpret writings, 972. Distinctive Kdles as to Parties. By old Roman law conscience of parties could be probed, 457. by later practice examination of parties was permitted, 460. importance of such testimony, 461. oaths by parties have obligatory as well as evidential force, 462. statutes removing disability not ex post facto, 463. statutes to be liberally construed, 464. cover depositions, 465. exception when other contracting party is deceased, 466. based on equity practice, 467. incompetency in such case restrained to communications with de- ceased, 468. does not extend to transactions not exclusively with deceased, 469. does not exclude intervening interests, 470. does not exclude executor, etc., from testifying in his own behalf, or other party from replying, 471. 639 INDEX. WITNESSES- (continued). surviving partner against estate, 472. includes real but not technical parties, 473. as to assignor and assignee, 473 a. does not relate to transactions after deceased's death, 474. does not extend to torts, 475. opposite party may waive immunity, 475 a. does not make incompetent witnesses previously competent, 476. does not relieve from calling subscribing witnesses, 476 a. does not exclude testimony of parties taken before death, 477. statutes do not touch common law privilege of husband and wife, 478. or of attorney, 479. party is subject to the ordinary limitation of witnesses, 480. may be cross-examined to the same extent, 481. examined as to his motives, 482. cannot avoid relevant questions on the ground of self-crimination, 483. may be contradicted on material points, 484. may be impeached, 484 a. may be re-examined, 485. presumption against party for not testifying, 486. two witnesses not necessary to overcome party's testimony, 487. party is bound by his own admissions on the stand, 488. under statutes one party may call the other as witness, 489. where party is examined on interrogatories equity practice is followed, 490. Examination of Witnesses. Judge may order separation of witnesses, 491. voir dire a^reliminary examination, 492. interpreter to be sworn, 493. witnesses refusing to answer punishable by attachment, 494. witness is no judge of the materiality of his testimony, 496. court may examine witness, 496. witness may be protected as to answers, 497. on examination cannot be prompted, 498. leading questions usually prohibited, 499. exception as to unwilling witness, 500. and as to witness of weak memory, and in cases of shyness, 501. so when such question. is natural, 602. so when witness is called to contradict, 503. so when certain postulates are assumed, 504. court has discretion as to cumulation of witnesses, and of examination, 5.05. so as to mode and tone of examination, 506. witness cannot be asked as to conclusion of law, 507. conclusion of witness as to motives inadmissible, 508. opinion of witness cannot ordinarily be asked, 509. 640 INDEX. WITNESSES— (conHmuerf). witness may give substance of conversation or writing, 514. vague impressions of facts are inadmissible, 515. Kefrkshing Memory of Witness. Witness may refresh his memory by memoranda, 516. such memoranda are inadmissible if unnecessary, 517. not fatal that witness has no recollection independent of notes, 518. not necessary that notes should be independently admissible, 619. memoranda admissible if primary and relevant, 520. notes must be primary, 521. necessary that writing should be by witness, 522. inadmissible if subsequently concocted, 523. depositions may be used to refresh the memory, 524. opposing party is not entitled to inspect notes which fail to refresh mem- ory, 525. opposing party may put the whole notes in evidence if used, 526. Cross-examination. on cross-examination leading questions may be put, 527. closeness of examinations at the discretion of the court, 528. witness can usually be cross-examined only on the subject of his examina- tion in chief, 529. his memory may be probed by pertinent written instruments, 531. but collateral points cannot be introduced to test memory, 532. witness cannot be compelled to criminate himself, 533. nor to expose himself to fine or forfeiture, 534. privilege in this respect can only be claimed by witness, 535. danger of prosecution must be real, 53 6 . exposure to civil liability or to police prosecution no excuse, 537. court determines as to danger, 538. waiver of part waives all, 539. pardon and indemnity do away with protection, 540. for the purpose of discrediting witness, answers will not be compelled to questions imputing disgrace, 541 . otherwise when such questions are material, 542. questions may be asked as to religious belief, 543. and so as to motive, veracity, and the res gestae, 544. witness may be cross-examined as to bias, 545. inference against witness may be drawn from refusal to answer, 546. his answers as to previous conduct generally conclusive, 547. Impeaching Witness. Party cannot discredit his own witness, 549. [As to Subscribing Witness, see 500.] a party's witnesses are those whom he voluntarily examines in chief, 550. witness may be contradicted by proving that he formerly stated differ- ently, 551. VOL. II.— 41 641 INDEX. yVIT'S ESSES— (continued). not necessary that impeached statement should have been made in ex- amination in chief, 552. conditions of examination, 553. prior inconsistent attitude may be shown, 554. but usually must be first asked as to statements, 555. practice as to writing, effect of discredit, 557. how far contradictions must be absolute, 558. witness cannot be contradicted on matters collateral, 559. by old practice conflicting witnesses could be confronted, 560. witnesses's answer as to motives maybe contradicted, 561. his character for truth and veracity may be attacked, 562. questions to be confined to this issue, 563. bias and interest of witness may be shown, 566. character convertible with reputation, 564. conditions of such examination, 565. infamous conviction may be proved as affecting credibility, 567. and so of necessity to remember, 567 (2. Attacking and Sustaining Impeaching Witness. Impeaching witness may be attacked and sustained, 568. Sustaining Impeached Witness. Impeached witness may be sustained, 569. but not ordinarily by proof of former inconsistent statement, 570. may be corroborated at discretion of court, 571. Reisxamination. Party may re-examine his witnesses, 572. witness may be recalled for reexamination, 574. and for reeross-examination, 575. PRIVILEGED Communications. Lawyer not permitted to disclose communications of client, 576. not necessary that relationship should be formally instituted, 578. nor that communications should be made during litinjation, 579. nor is privilege lost by termination of relationship, 580. privilege includes scrivener and conveyancer, as well as general counsel, 581. so as to lawyer's representatives, 582. client cannot be compelled to disclose communications made by him to his lawyer, 583. privilege must be claimed in order to be applied, and may be waived, 584. privilege applies to client's documents in lawyer's hands, 585. lost as to instruments parted with by lawyer, 586. communications to be privileged must be made to party's exclusive ad- viser, 587. lawyer not privileged as to information received by him extra-profes- sionally, 588. information received out of scope of professional duty not privileged, 589. 642 INDEX. WITNESSES— (continued). privilege does not extend to communications in view of breaking the law, 590. nor to testamentary communications, 591. lawyer making himself attesting witness loses privilege, 592. business agents not lawyers are not privileged, 593. communications between party and witnesses privileged, 594. telegraphic communications not privileged, 595. no privilege to parties to negotiable paper, 595 a. priests not privileged at common law as to confessional, 596. arbitrators cannot be compelled to disclose the ground of their judgments, 599. nor can judges, 600. nor jurors as to their deliberations, 601. juror if knowing facts must testify as witness, 602. prosecuting attorney privileged as to confidential matter, 603. and so are communications with government as to prosecutions, 604. executive privileged as to conferences on public affairs, 604 a. and so as to confidential documents, 604 b. and as to consultations of legislature and executive, 605. medical attendants not privileged at common law, 606. no privilege to ties of blood or friendship, 607. privilege as to diplomatic agents, 607 a. parent cannot be examined as to access in cases involving legitimacy, 608. Depositions. Depositions governed by local laws, 609. as to letters rogatory, see 609. Indians and Chinese, as witnesses, 611. WOMEN, presumptions as to child-bearing, 334, 1298-1300. WORDS, how to be interpreted, 936, 972. meaning of, when judicially noticed, 282. when meaning for judge, when for jury, 966. WRITINGS, criminatory, witness is not bound to produce, 751. when admissible to refresh memory (see Memory). presumed to be made on day of date (see Date), 1312. cannot be proved by parol on cross-examination, 68. in construing, effect of written as compared with printed words, 925. thirty years old require no proof, 703, 1359. cannot be proved by parol (see Primariness), 60, 163. cannot be varied by parol (see Parol Euidence), 936, 966. when may be reformed or rescinded (see Deed). admissions may prove contents of writings, 1091. admissions, limitations of this rule, 68, 553, 1093. admissions not excluded because party could be examined, 1094. admissions may prove execution, 1091. unless when there are attesting witnesses, 1095. 643 INDEX. WRITINGS— (con(mwed). wKole context must be received, 617, 618, 1103. may be in pencil, 616. written admissions entitled to peculiar weight, 1122. instrument may be an admission, though undelivered, 1123. invalid instrument may be used as an admission (see Admissions), 1124. when witness may be cross-examined as to contents of, 68, 553. signed writings, when necessary under statute of frauds (see Statute of Frauds), 851-911. when to be attested (see Attesting Witness). what must be signed by party personally, 854-860, 873-889. what must be signed by agent constituted by writing, 702, 867, 868. public (see Public Documents) . unpublished, or found on person, when available against him, 1123, 1154. presumption from spoliation of, 1264. presumption from withholding of, 1266. as to proof of (see Handwriting) . WRITS, when admissible singly, 828-834. when proof of facts recited in them, 833 a, 838, 1116-1121. presumed to be regularly issued, 1302. may be sealed in blank, and then filled up, 632-634. YEAR, when writing is necessary to agreement not to be performed within a, 883. 644 TABLE OF CASES. [the figures refer to the sections.] A. Aaron v. Aaron 890 Abbe V. Eaton 1070 u. Shields 555 Abbey v. Dewey 1290 V. Lill 445 Abbot V. Plumbe 725 Abbott V. Abbott 653, 942, 944 V. Andrews 1077 V. Case 414 V. Cole 713 V, Draper 910 V. Hendricks 1044, 1060 V. Johnson 380 V. Marshall 1046, 1049, 1056 0. Massie 1008 V. Middleton 924 V. Muir 1163 a V. Pearson 1103 V. Shepard 872 V. Stribben 420 Abeel v. Radcliff 901 Absl V. Fitch ' 415 V. Potts 639 Abercrombie v. Abercrombie 1008 V. Allen 1138 V. Salisbury 40 Abernathy v. State 290 Abernethy v. Com. 569 Abiugton v. Bridgewater 114, 115 Aboulofif V. Oppenheimer 803 Abrams v. Pomeroy 920, 936, 977 Abrey v. Crux 930 Aoebal v. Lery 876, 876 Acerro v. Petroni y 501 Aoheson v. Henry 490 Acker v. Bender 946 V. Phojnix 1050 Ackermaii, in re 1274 V. Hickman 523 Ackland v. Pearce 162 Acklen v. Goodman 795 Ackley v. Dygert 66 Ackley V. Hall 290 ' V. Parmenter 878 Aoklin V. Hickman 520 Acorn, The 979 Acraman v. Morrice 875 Adae v. Zangs 518 Adair v. McDonald 1020 Adam v. Eames 1108 V. Kerr 726, 727, 729, 1314 Adams v. Adams 836 ?!. Allen 468 o. Barnes 769 V. Beale 77 V. Bean 869 . Ins. Co. 569, 965 u. Jones 1274 17. Lawson 47 v. Leland 151 V. McKesson 854 I/. McMillan 868 u. Morse 969 V. Olive 828 .■. Packet Co. 1070 V. E. R. 265, 268, 1296 u. Rockwell 909 V. Royal Mail Steam Packet Co. 961 V. Sanders 1065 r. Stanyan 113, 185, 669 V. State 106, 252, 254 645 TABLE OF CASES. Adaraa v. Steamboat Co. 686 V. Stettaners 357 V. Sullivan 439, 926 V. Swansea 208 o. Thomas 1058 i. Tiernan 775, 795 V. Townsend 910 V. Utley 1110 V. Way 97, 321 V. Wheeler 549 V. Wordley 920, 930, 1014 ,). Wright 123 Adams, The 511 Adams Co. v. Boskowitz 949 Adamthwaite v. Synge 94 Addington v. Allen 1305 Addis V. Graham 1052 Adee v. Howe 1184 Adkins v. Hershy 490 Adler v. Freedmau 1025 V. Friedman 1022 Adlum V. Yard 1144 Adm. u. Ammon 864 Adriance v. Arnot 505 Advertiser Co. o. Detroit 958 ..^tiia Fire Ins. Co. v. Allen 1071 jEtna Ins. Co. f. Johnson 1246 Affleck V. Affleck 931 Agan V. Hay 600 Agawam Bank v. Strever 1026 Agricult. Cat. Ins. Co. u. Fitzgerald 77, 623, 1124 Agricultural Co. v. Keeler 1212 Ahern v. Roodspeed 1102 Ahl o. Ahl 786 Ahrend o. Odiorne 903 a Aiken v. Mendenhall 529 0. Peck 578 V. Tel. Co. 1180 Aikin v. Bemis 1181 V. Cato 529 V. Hodge 175 t>. Stewart 574 Aikman v. Cummings 945 Ainsworth v. Greenlee 72, 706, 708 Airly v. Savings Inst. 1143 Ake V. State 395 Akerman v. Fisher 909 Alabama Ins. Co. v. Sledge 468 Alabama R. R. c. Burkett 613 c. Hawk 265 V. Johnson 1175 V. Sanford 1125 Alban d. Pritohett 1217 Albea v. Griffin 909 Albert v. The Grosvenor Invest. Co. 1018 V. Winn 912 . . ZeiplHr 920, 936, 1158 Albertson v. Robeson 208, 637 Albricht v. State 47 646 Albright v. Cobb V. Corley Alchin V. Hopkins Alooek V. Ins. Co. 17. Whatmore Alcorn v. Cook V. Harmonson V. Morgan Alden v. Grove Alder v. Savill Alderman v. French V. People Alderson v. Bell V. Clay v. Langdale Aldous V. Cornwell Aldrich v. Aldrich V. Billings V. Gaskell V. Hapgood V. Hyde V. Kinney V. Pelham V. Stockwell Aldridge v. Eshleman V. Johnson 1316 444, 511 863 619 322 466 909 1066 1157, 1168 800 53 539 326 78, 1181, 1284 626 623 939, 943 1144 1002 1022 796 796, 802, 808 40 1061 944, 1019 875 V. Midland Co. V. R. R. Alexander v. Burnham u. Chamberlin V, Crosble V. Dutoher o. Ghiseliu V. Gibson V. Gould V. Hoffman u. Knox ti. McCuUough ■«. Moore V. Nelson V. Smoot V. Sterling f. Strong V. Taylor Alexander's Succession Alfonso V. D. S. Alford V. Baker I'. Hughes V. Vincent Alfred v. Kennedy Alger V. Andrews V. Scoville V. Thompson Alison ?'. Chapman Alivon V. Furnivall Allaire v. Whitney Allan V. Rodney V. Sundius V. Vanmeter Allard c. Greasart AUeman v. Stepp 265 43, 360 337 208 1022 470 902 967 1167 473 116, 537 108 1026 982 678 612 149 764 1332 175, 446, 674 314, 1336 456 1082 1163 879 685 796 74, 82, 129, 658 1362 694 969 996 874, 876 567 « TABLE OF CASES. Allen V. Allen 1040, 1056, 1246 V. Bank 1059 u. Bates 942 V. Bennet 872, 873 V. Blunt 151, 444, 1323 V. Brown 1059, 1060 V. Carpenter 1118 V. Coit 1131 V. Denstone ' 267, 1174, 1180 V. Duncan 262 V. Dundas 66, 810, 811, 816 V. Dunham 120 ■/. Furbish 929, 1058 V. Goddard 476 V. Gray 828 V. Hancock 573 V. Harrison 588 u. Holden 739 V. Hoxey 108 V. Jaquish 865 V. Killinger 1190 V. Lyons 333, 1274 V. Maddook 890, 1003 V. Martin 833 V. McGaughey 1156 V. Mills 982 V. Morgan 477 V. Parish 129 V. Peters 1154 V. Prink 969 V. Public Administrator 606 c. R. R. . 693 V. Restain 78 v. Richard 863 V. Russell 432 V. Sales 623 u. Scharninghausen 325, 339 1-. Seyfried 1102 V. Smith 1331 V. Sowerby 1017, 1026 .,. Stage Co. 990 V. State 135, 253, 708 V. Tison 290 «. Vincennes 643 V. Willard 336 Allen, in re 811 Allen's Estate 909, 910 Allen's Patent, in re 886, 1320 a Allegheny Co. v. Nelson 228, 292, 1319, 1353 Allegheny Home's Appeal 290 Allgood V. Blake . 998 Ailing V. Cook 559 AUia V. Day 442 V. Leonard 484 V. Read 877 AUlaon v. Barrow 427 Allison's case 758 AUman v. Owen 282, 335 Allnutt, in re 890 AUport V. Meek 712 Allshouse V. Ramsay 880 Allyn V. R. R. 361 Alma, etc., R. R. v. Stewart 439 Almgren v. Dutilh 944 Almosino, in re 890, 1003 Alner «. 'George 1207 Alpaugh's Will 887 Alrath o. R. R. 356 Alsager v. Dock Co. 925 Alsop V. Goodwin 1058 Alston V. Alston 1354 V. Grantham 1136 V. Wingiield 1019 Alter V. Berghaus 249 V. Langebartel 228, 1058 V. McDougal 699 Alton V. Gilmanton 1184 Alton R. R. V. Northcott 507 Altschul V. San Francisco 942 Alvey V. Crux 1058, 1059 Alvord V. Baker 1362 0. Collin 739 Amador Co. v. Mitchell 797 American v. Eimpert 357 Am. Bible Soo. v. Price 451 Am. Ex. Co. V. Schier 937 Am. Fur Co. u. U. S. 1192 American Ins. Co. o. Cutler 1301 Amherst v. Holly 534 Am. Iron Co. v. Evans 1194 Am. Life Ins. Co. v. Shultz 466, 469, 476 Am. Life & Trust Co. v. Rosenagle 82, 87, 94, 148, 201, 208, 307, 653, 658 Am. R. R. Co. V. Haven 746 Am. St. S. Co. V. Landreth 1174 Am. Soo. V. Pratt 992 Am. Trans. Co. b. Moore 1070 Ames V. Gilmore 1049 V. Lowry 946 V. MeCamber 303, 310, 470 o. Snyder 356, 509, 513 Ames, succession of 429 Ames's Will 452 Amey v. Long 377 Amherst v. Sommers 813 Amherst Bank v. Root 708, 719, 1214 Amherst R. R. v. Watson 490 Amiok V. Young 259 Amiss, in re 889 Amonett v. Montague 926 Amory v. Amory 784, 982, 98.5 V. Fellows 493 V. Lawrence 1031 Amos r. Oakley 21 V. Hughes 356, 357 Amoskeag v. Worcester 21 Amsden v. R. R. 788 Anable v. Anable 433, 481 Anderson v. Ames 678 V. Anderson 288, 429, 796, 797, 861, 890 647 TABLE OF CASES. Anderson v. Applegate 152 V. Bank 593 V. Brown 1063 V. Bruner 1175 V. Bnsteed 473 a V. Chick 909 V. Collins 487 V. Cox 824 0. Cramner 1252 I. Davis 880 I'. Edwards 661 V. Folger 288 V. Friend , 431 V. GiU 1253 V. Gregory 768 t/. Hamilton 604 V. Hanoe 473 V. Hayraan 880 V. Hutclieson 1019 V. James 176 V. Johnson 877 ,-. Kent 1156 a V. Lanenville 1097 c. Long 47, 48, 256 u. Maherry 147, 391, 395. 396 V. MoCarty 1038 V. Parker 201, 223, 1277 V. Pike 1156 K. Powers 863 V. R. R. 267, 276, 1170, 1173, 1174, 1175, 1180, 1182 u. Root 156 ('. Sanderson 1177 V. ricot 875 V. Shoup 950, 951 V. Simpson 909 V, Snow 689 V. State 534, 567, 573 V. Taylor 432 V. Turner 740 V. Vollmar 518 C.Walter 528 < . Weston 977, 978, 1135, 1312 o. Whalley 622 V. Wilson 470 Anderson Township v. Thompson 640 Anderton v. Magawley 827 Anding v. Davis 1030 Andre v. Bodman 393, 881 a. Hardin 439 Andres v. Lee _ 1137 Andrew r. Sohmitt 786 Andrews v. Andrews 1042, 1049 ij. Askey 51, 551 V. Frye 486, 533, 546, 1137 ... Hancock 1017 c. Herriot 803 y. Hyde 1031 V. Kneeland 967 c. Knox 338 u. Marshall 740 648 Andrews v. Martin 390 V. Motley 195, 729, 1314 V. Palmer 178, 179 V. Pond 632, 1058 V. Vanduzer 49 Androscoggin Bk. u. Kimball 932, 1243, 1271 Angell V. Angell 810 V. Bowler 833 u. Duke 1026 c. Hester 466, 476 V. Rosenburg 61, 253 Angelo V. Faul 417 Augier V. Ash 833 V. Howard 726 Angle V. Ins. Co. 632 Anglea v. Com. 567 Anglesey i'. Hatherton 21, 44, 194 Angomar i: Wilson 921, 1019 Angus V. Daltou 1347, 1349 0. Smith 549, 551, 555 Angus, in re 895 Ann, The 1240 Annan v. Merritt 909 Annap. R. R. v. Gantt 43 Annapolis v. Harwood 290, 980 a Annesley v. Anglesea 432, 569, 589, 590, 1265 Anon. 53, 107, 155, 398, 400, 421, 523, 562, 597, 599, 608, 704, 838, 867, 1343 V. Parr 490 Anschicks v. State 602 Ansell V. Baker 1091 Ansley ti. Meikle 288 Anson v. Dwight 447 r. Ins. Co. 1172 Anspach v. Bast 1019 Anstee v. Nelms 1003 Anthony v. Atkinson 1031 t. Chapman 1031 r. Leftwich 909 V. Smith 441, 505 Antoine v. Ridge Co. 863 Antonio v. Gould 290 Antram v. Chaoe S24 Apgar, in re 1300 Apoth. Co. V. Bentley 367 Appel V. Byers 996 Applegate v. Mining Co. 194, 799 Appleton !'. Lord Braybrooke 104 Appleton, iji re 1227 Apsden's Estate ' 957, 992 Aptliorp r. Comstoqk 1206 V. North 1202 Aranguren r. Suholfield 149 Arbery i;. Noland 1021 Arbouin i\ Anderson 1061 Archangelo v. Thompson 1325 Archer r. Bacon 821 c. Baynes 87 a, 870, bTi TABLE OF CASES. Archer v. Douglass 962, 1060 Arundel v. Holmes 742 V. English 1114 Arundell v. Tregono 776 Archibald v. Davis 115 Ash, in re 890 Archp. of Cant. v. Tubb 753 Ashby II. Bates 856, 357 Arden v. Sullivan 855 Ashoom V. Smith 995 Ardeseo v. Gilson 510 Ashcraft v. De Armond 175, 1254 Arding v. Flower 389 Ashcroft V. Morrin 870, 873 Arent v. Squire 364 Ashe V. Guie 464 Arganbright v. Campbell 912 c. Lanham 1318 Argo, The 357 Asher r. Whitelock 1333 Arguello v. Edinger 909 Ashford v. Robinson 869 Argus Co. V. Albany 883 Ashhurst v. Mill 1022 Arisen v. Kinnaird 429 Ashland o. Marlborough 268, 509 Armidon v. Horsley 563 Ashley v. Martin 21, 338 Armond v. Nessmith 647 Ashlock V. Linder 1090- Armory v. Delamirie 1264, 1266 Ashmore v. Hardy 1099, 1120 Armstein v. Gardiner 436 V. Towing Co. 1180 Armstrong v. Boylan 122, 136 Ashmore, in re 888 V. Burrows 937, 977 Ashpitel V. Sercombe 1131 V. Caldwell 1345 Ashton V. Parker 464 t;. Den 726, 727 Ashton's case 385 V. Fahnstock 837 Ashwell V. Retford 961, 969 . Jones 1166 Bradford w.'Bank 1019 o. Ladson 681 V. Barclay 557 V. Mclvor 1301 V. Bk. 1021 V. McLean 903, 1035, 1037 V. Bradford 760, 1021 o. Moore 764 V. Bush 549, 1108 V. Petrie 751, 752 V. Cooper 298 V. Reed 1363 V. Haggerthy 1136 V. U. S. 534 V. Floyd 335 . V. Wyley 1302 V. Romey 1022 Boyd, in re 826 V. Stevens 518 Boydell v. Drummond 853, 883, 901 V. Union Bk. of Tennessee Boydell's case 1220 1021 Boyden v. Moore 265 V. Williams 427, 1175 Boyer, in re 610 Bradford's Will 630 Beyer v. Norris 723 Bradish V. Bliss 366, 1246 Boyers v. Pratt 293 Bradlee V. Glass Man. 950, 951 Boykiu v. Boykiu 608 Bradley V. Anderson 1028, 1058 V. Smith 473 V. Arthur 297, 435 V. Watts 466, 468 V. Bentley 920 Boylan v. Meeker 1009, 1011 V. Bishop 828 Boyle V. Burnett 220 0. Bradley 776, 783 ,838,1110, V. Chambers 732 1274 u. Colmau 708 o. Davis 518, 521 V. Mowry 482 V. Dunipace 1070 V. State 441, 665 V. Harden 288, 1292 V. Mulholland 1005 V. Holdsworth 864 0. Wiseman 82, 483, 535, 658 v. Ins. Co. 314 Boyleau v. Rutlin 781 V. James 236 Boynton v. Kellogg 49, 52, 563 V. Johnson 785 u. Morrill 785, 988 V. Kennedy 1246 o. Pierce 1059 V. McKee 357 V. Rees 141 V. Merrick 197 <,. Twitty 1044 V. Northern Nav. Co. 359 1'. Veazie 875 u. Pattou 472 V. Willard 828 V. Pilots 941 Boys V. Williams 937 V. Rees 663 998 TABLE OF CASES. Bradley v. Richardson V. Spencer V. SpofiFord V. State U. S. 879 770 1101 1254 9,464 V. West 290, 310, 312, 468, 469 Bradshaw v. Bennett 736 ... Combs 500, 1017 a, 1062 .,. Hedge 123 V. Mayfield 301 u. Murphy 751 V. Road Co. 509 Bradsher v. Brooks 431 Bradstreet v. Ins. Co. 814, 818 ^. Kinsella 808 V. Potter 276 u. Rich 949 Bradt v. Brooks 704 Brady v. Brady 446, 448, 466 V. Brooks 1214 c. Ciibitt 1035 V. Huff 779 V. Oastler 1026 u. Page 339 V. Parker 259 V. Reed 466, 469, 1026 c. Todd 967 Bragg V. Clark 472 o. Colwell 714 V. Lorio 799 o. Massie 259, 1031 V. Rush Co. 339 Brague v. Lord 466, 469 Brain v. Preece 245 Brainard v. Buck 1138 V. Fowler 808, 824 Brainerd v, Arnold 1024 V. Brainerd 1019 V. Cowdrey 942 Braintree v. Hingham 183 Brakebill v. Leonard 114 Braman v. Bingham 607, 930 Brambridge v. Osborne 1362 Bramwell v. Lucas 588, 589 Branch v. Doane 760, 764 V. R. R. 1175 Branch Bank v. Coleman 1060 Brand v. Abbott 265, 464 V. Brand 479, 576, 682, 877 Brandao v. Barnett 298 Brandon v, Cabiuess 857, 838 V. Leddy 956 V. Loftus 123 V. Morse 920, 931 V. People 483 Brandt t>. Klain 585 Brandywine R. R. v. Ranok 1077 Branger v. Lucy 466 Brann v, Campbell 669 Brannan v. U. S. 259 664 Brannin v, Poree Brannon v. Hursell Brant v. Coal Co. V. Lyons V. Plumer V. Ogden Brantly v. Swift V. West Branton v. Griffits Brantwell v. Foster Braque v. Lord Brashear v. Martin Brashears v. State Braswell v. Pope Bratt V. Bratt Brattle v. Bullard 1132 549, 1193, 1199 1150 436 779, 792 1349 444 1031 1014 980 468 702 142 1039 1042 1347, 1352 Brattle St. Ch. v. Bullard 1349 Bratton V. Clawsou 1050 Brawdy v. Brawdy 909 Bray v. Aiken 140 Brayley v. Jones 1103 0. Ross 175 Brayton v. Chese 578 Brazelton v. Turney 262 Brazier v. Burt 262 V. Jones 824 Brazill v. Isham 765, 1110 Breadalbane case 1274, 1297 Breadalbane v. Chandos 788 Breadleve v. Bunby 21 Breck v. Cole 977, 1015 Breokenridge v. McAfee 1183 V. Waters 1354 Bredin v. Bredin 1205 Bree v. Holbrook 1173 Breed v. Bank 1323 r. Pratt 1253 Breeden v. Feurt 1126 Brehm v. R. R. 454 Breinig v. Meitzler 545, 682 Breman's case 300 Brembridge v. Freeman 300, 302 o: Osborne 1362 Bremmerman v. Jennings 1214 Brenchley v. Still 888 Brennau v. Moran 973 V. People 412, 511 Brent v. Bank 1058 V. State 1241 Bressler v. People 417, 556, 601 Brest V. Lever 1333 Breton v. Cope 662 Brett V. Beales 187, 294, 199 V. Catlin 412 V. Levitt 1059 Bretz V. Mayor 293 Brewer v. Brewer 262, 1156 . Clark 559, 681, 937, 992, 1032 V. Crego 619, 1103 V. Denio 1059 V. Depew 103, 838 V. Detroit 120, 436, 444, 972 V. Dibble 1246 V. Eckstein 629 V. Elizabeth 670 V. Field 506, 603 V. Fletcher 156 V. Freeman 709 V. Henry 1032 B. Hopkins 1360 V. Hornbeck 142 ^. Houghton 140, 514, 727, 977, 1042, 1050, 1056, 1094 V. Hufifaker 1200 V. Hummerle 116 V. Ins. Co. 920 . Lewis 259 V. Ford 516 V. Littlejohn 84,86 V. Fowler 1315 u. Locke 356 v. Fox 520 V. Low 1352 V. Fry 324 V. Lyden 529 V. Galavan 281, 496, 1138 V. Lyne 400 c;. Gazzalo 253 V. Malone 512 u. Groddard 795 782, 839 V. Mara 551 V. Goldstein 153 V. Marsh 422 V. Goodwin 683 V. Martin 290 V. Gorham 397, 567 V. Matthews 640 V. Green 290, 393, 397, 567, 808, V. May 338 1194, 1271 V. McCarthy 31 V. Griffin 427 V. McCue 1315 V. Haley 524, 525 u. McKie 371 0. Hall 30, 567 V. MoPike 268 776, 838 u. Halloway 567 V. Mead 601, 1271 V. Hanlon. 397 V. Messinger 78, 160 V. Hardy 49, 56 V. Miller 29, 776 II. Harvey 1138 V. Moltz 1150 V. Hawkins 556 V. Montrose 980 a V. Heffron 185, 640 V. Mooney * 551 V. Hill 81, 399 401 407, 601 V, Morgan 483 529, 539 I'. Hobbs 443 V. Morrell 77, 81, 715 V. HoUistou 677 V. Mullen 483, 539 V. Holt 86, 1220 V. MuUins 400, 715 V. Horton 788 V. Murphy 97 422, 562 V. Hunt 557 V. Murtagh 84, 86 V. Hutchinson 398 399, 400 . Eddy 823 1/. French 950 a. Kortright 633, 694 . Toulmin 838, 1084 Coper V. Thurmond 1274 Copes V. Pearoe 205 Copin V. Adamson 801, 803 Copley V. Sanford 301 Copp V. Lamb 1310 V. McDugall 823 .;. Upham 537 Coppage V. Barnett 1196 Copper Miners' Co. v. Fox 694 Corbett v. Berryhill 939 u. Corbett 179 V. Gibson 377, 504 ■V. Evans 789 V. Hudson 420 Corbin v. Adams 1175 t). Sistrunk 935 Corbshley's Trusts 1274 Corbley v. Wilson 776 V. Ripley 226 Corbling v. Ripley 1165 Corby v. Wright 180 Corcoran v. Canal Co. 760 V. Sheriff 366, 976 Cordwent v. Hunt 1018 Corey v. Campbell 442 Corinna v. Exeter 1209 Corinth v. Lincoln 259 Cork V. Brown 565 Cork & Bandon Rail. Co. a. Caze- nove 1272 Corker v. Jones 779 Corkliu V. Marshalltown 38 Corlies v. Howe 1044, 1064 V. Vannote 723 Cornelius v. Com. 547 V. State 566 Cornell v. Cork 833 V. Dean 448 V. Hall 1032 V. Vanartsdalen 429 Cornet v. Bertelsmann 375, 411 684 Cornett n. Cornett 1165 V. Fain 1165 V. Williams 72, 90, 135, 465 Corning v. Ashley 681 f. Corning 47 V. Gould 1350 V. Troy Factory 1332 Cornish v. Cornish 433 Cornville v. Brighton 259 Cornwall v. Richardson 47, 60, 53 Corr V. Sellers 683 Corrie v. Billin 697 Corrigan v. Falls Co. 693 Corry Bank v. Rouse 698 Corse V. Patterson 422 Corser v. Paul 1136, 1138 Corsl V. Maretzek 441 Cort V. Ambergate 1018 Cortes Co. v. Taunhauser 610 Cortis <■. Kent 1317 Cortland Co. y. Herkimer 1175, 1182 Corwith V. Culver 1068 Cory w. Bretton 1090 V. Davis 60 V. Siloox 438, 666, 666 Coryelt v. Stone 1199 Cosgrove v. R. R. 1175 Cossey v. London 742 V. R. R. 593, 606 Cossitt V. Hobbs 872 Costello V. Burke 823, 1041 V. Crowell 29, 238, 241, 625, 662 V. Costello 427, 430, 431, 478 Costigan v. Gould 239, 977 V. Hawk 366 V. Lunt 180 <•. Mohawk R. R. 366 c. R. R. 353 Cotharin v. Davis 33 Cotheal v. Talmage 357 Cotten V. Ellis 747 Cotterill v. Hobby 60, 61, 78 Cottingham v. Weeks 776 Cotton V. Campbell 60 u. Jones 574 V. Ulmer 1252 V. Vandervolgen 560 V. Wood 359 Cotton Ins. Co. v. Carter 753 Cottrell, In re 730 Cottrell V. Cottrell 466 V. Hughes 1352 V. Woodson 469 Cottrill V. Myriok 443, 1026 Couch V. Coal Co. 66, 1081, 1138 >!-. Woodruff 1026 Coughenour v. Suhre 929, 1019, 1058 V. Stauft 945 Coughlin V. Haeussler 177 u. People 416 TABLE OF CASES. Couillard v. Duncan 551 CoujoUe V. Ferrie 213 Coule i\ Harrington 115 Coulson V. Wells 1347 Coulter V. Express Co. 549, 1296 0. Stewart 1246 Count Johannes v. Bennett 1265 Countess de Ziohy Ferrais v. M. of Hertford 888,, 890 Coupland v. Arrowsmith 617, 1128 Course v. Stead 287 Coursin v. Ins. Co. 821 Courtail v, Thomas 865 Courteen v. Tonse 501 Courtenay v. Fuller 1015, 1026 Courtney v. Baker 263 V. Com. 1131 V. Hogan 1059 V. People 396 Conrvoisier v. Bonvier 1039 Cousins V. Jackson 474, 485 V. Wall 908 Couturier v. Hastie 879 Covanhoven v. Hart 572, 574 Coveuey v. Tannahill 587 Coventry v. Coventry 184 Coverston v. Ins. Co. 1247 Covert V. Gray 1284 Covington v. Ingram 982 V. Ludlow 637 V. State 60 Covington Co. v. Sargent 758 Cowan V. Corhett 986 u. Beall 722 u. Braidwood 803, 804 o. Cooper 1044 V. Hite 201 V. Kinney 1200 V. Wheeler 833 u. White 210 Cowden v. Eeynolds 551 Cowdry v. Cheshire 808 V. Vauden burgh 1146 Cowell u. Chambers 636 V. Patterson 1138 V. State 300 Cowen V. Bolkom 1302 Cowie V. Halsall 626 a. Eenfry 75 Cowles V. Bacon 480 V. Garrett 961, 1058 V. Hayes 516 V. Merchants 451 V. State 518 V. Townsend 1058 Cowley V. Halloway 1277 Cowleg V. People 278, 452, 676 Cowling V. Ely 1208 Cox V. Allingham 66 V. Bank 1059 u. Bennet 1014 Cox V. Cook 357 V. Cox 117 V. Cromby 31 V. Davidge 1069 V. Davis 727 V. Eagres 549 V. Easley 1168 <^. Ellsworth 1277 V. Freedly 1339 ^. Hill 797 V. James 1039 V. .Tones 100 V. King 1019 V. Middleton 901 V. Morrow 314 ■/. Parry 1114 V. Prater 50C ,549 V. Prnitt 565 V. State 185 ,259 V, Strode 760 1). Thomas 770 , 823 V. Walker 356 0. Whitefield 508 ,509 Coxe V. Deringer 142, 980, 1287, 1303, 1318, 1331, 1332, 1353 V. England 140 u. Heisley 958, 959, 965 Coxhead v. Richards 1262 Coye V. Leach 1280 Coyle V. Cleary 191, 1156 0. Com. 451, 452 u. Davis 908 V. R. E. 1170 Cozens v. Stevenson 1019 Cozzens v. Higgins 676 Crabtree v. Clark 739 V. Hagenbaugh 412, 563 f. Kile 562, 565 V. Reed 7 Craft I'. Com. 177 Crafts V. Clark 305, 314, 801 Craft's App. 238 Cragin v. Lamkin 302, 310, 311 Craig V. Brendel 466 V. Brown 99, 100, 101, 289 V. Craig 570, 1220 V. Dimock 697 V. Fenn 356 V. Gilbreth 1175, 1179 V. Grant 549 V. Lewis 1066 V. Millar 1101 V. Pervis 357, 948 V. Proctor 367 V. R. R. 452 I/. Rohrer 551 V. State 562 Craighead v. Wells 1183 Crain v. Wright 1214 Crake v. Crake 289, 314 Cram v. Cram 430, 451 685 TABLE OF CASES. Cramer v. Burlington 601, 1174, 1267 V. CuUiuane 481 V. Moore 786 V. Shriner 1064, 1134 Crandall v. Clark 1327 u. Gallup 793 V. Sohroeppel 1336 Crane v. Crane 466 . Thompson 1084 Crosby v. Berger 588, 1576 V. Hetherington 331 0. Jerolomau 758 V. Lang 797 TABLE OP CASES. Crosby v. Mason 1002 V. Percy 254 V. Wadsworth 866 Crose V. Rutledge 47, 430 Crosland v. Murdook 816 Crosett V. Whelan 506 Crosman v. Fuller 1060 Cross V. Bell 153, 1267 V. Cross 84 V. Johnson 129 V. Langley 1194 V. Mill Co. 120 u. O'Donnell 875 V. People 261 V. Rowe 1044 V. Sprigg 1017 u. State 34 Crosse v. Bedingfield 1192 Crossgrove v. Himmerlioh 1192 Crossley v. Dixon 1149 B. Lightowler 1341 Crotty V. Hodges 626 Croucli V. Hooper 201, 207 Croudson v. Leonard 814 Croughton v. Blake 194, 639, 794 Crouse v. Holman 447, 1253 V. Miller 228 V. Staley 431, 466, 471 Crow V. Hudson 833 V. Marshall 1332 Crowder v. Hopkins 194 Crowe V. Capwell 148 V. Clay • 149 I'. Peters 601 Crowell V. Bank 515 V. Hopkinton 115 Crowley v. Page 549, 551 V. Vitty 859 Crowninshield v. Crownlnshield Crowther v. Hopwood Croxton v. May - Crnger v. Daniel V. Dougherty Cruikshank v. Bath Co. Cruise v. Clancey Crump V. Grerock V. Starke Crumpton v. State Cubbedge v. Napier Cubbison v. McCreary Cubitt V. Porter Cuddy V. Brown Cudney v. Cudney Cuff V. Penn Culbertson v. Chicago Cull V. Herwig Cullen V. Bemin Culpepper v. Wheeler Culver V. Dwight Cumberland v. Boyd Cumberland Bk. v. Hall 1252 397 1300 228 63 800 145, 709 838, 1116 175 782 314 395 1340 201 1010 901,902 449 422 924 151 512 800 a 626 Cumberland Ins. Co. v. Gilfixon 1092 Cumberland R. R. v. McLanaban 1040, 1156 Cuming v. French 1090 Cummings v. Arnold 863, 901, 902, 904, 906 V. Banks 802 V. Com. 1290 V. Cummings 800 V. Furnace Co. 359 V. Gill 909 o. Nichols 683 V. Putnam 1026, 1027 V. State 509 V. Stone 339 V. Taylor 592 Cundell v. Pratt 544 Cundiff V. Orms 522 Cunliff ». Sefton 726, 729 Cunningham, in re 891 Cunninghams. Bank 705 708 ■c. Dwyer 1044 V. Fonblanque 1320 V. Foster 988 u. Gardner 980 V. Miller 922 V. Parks 258 V. Smith 810, 1278 u. State 334 V. Wardwell 1058 V. Williamsport 22 Cunninghame v. Cunningham 84, 1297 Curie V. Beers 1124, 1125 Curlewis V. Corfield 1265 Curling v. Perring 594 Curratt v. Morley 1308 Curren v. Connery 574 V. Crawford 681 Currie v. Anderson 875 ... Child 726 Currier v. Esty 838 I'. Gale 227,11615,1286,1331 V. Hale 1058 ,.. R. R. 512, 512, 1133 0. Silloway 838 Curry v. Kurtz 1196 V. Lyles 1044 ij. Raymond 115 V. Robinson 394 V. Smith 778 Curtis V. Belknap 724 V. Brown 880 V. Cochran 567 V. Hall 739 V. Hunt 1121 V. Knox 534 V. Leavitt 693 V. Marsh 335 V. McSweeny 736 V. Moore 259 V. Rickards 1337 687 TABLE OF CASES. Cnrtis v. R. R. 512 ■ V. Sage 883 V. Wakefield 1066 V. Williamson 1153 Curtiss V. Martin 1163 a, 1301 V. Strong 396 Curzon v. Lomax 185, 187, 194 Cusack V. Robinson 875 Cusliing V. Breed 875 Cushman v. Loker 397 Custar V. Gas Co. 262, 1175, 1177, 1179 V. Titusville 1068 Cnstis V. Turnpike Co. 795 Cmhell V. Cuthell 460, 466, 1017 a Cuthbert v. Gumming 961, 969 Cutler V. Carpenter 507 867 V. Pope V. Smith. V. State V. Wright 289, Cutter V. Caruthers V. Cochrane V. Erans V. Waddington Cutting V. Damorel Cuttle V. Brockway Cutts V. Haskins V. Pickering V. U.S. Cuyler v. Ferrill 1017, 1019 383, 1240 314, 315, 357, 1250 324 906, 1017 770 965 662 1348 810 578 623 338 640,' 1347, McCartney 1166, 1166, 1167, 1199, 1200 D. Dabadie v. Poydras 920 Dabbert v. Ins. Co. 268 Dabney v. Mitchell 551, 601 V. People 412 Ba Costa v. Edmunds 962, 1243 V. Jones 283 Daeghing v. State 441 Daggett V. Johnson 1014 V. Shaw 191, 1156 V. Tallmann 566 Dagleisch r. Dodd 1103 D'Aglie V. Fi-yer 653, 654 Bail V. Siegg 125 Dailey v. Grimes 513 V. Monday 419 Daily v. Coken (i97 V. Coons 1090 ". State 335, 570 Dain v. Wyckofif 47 Dairies v. Hale 300 V. Hartley 975 Dairy Ass. 1142 Dakin v. Graves ' ]23 Dalby v. Hirst 9(j3 Dale V. Blackburn 528 688 Dale V. Evans 1066 V. Gear 1059 V. Gower 1156 V. Hamilton 864, 909 V. Humfrey 969 V. Moffit 1061 V. R. E. 40 V. Wright 123 Dale, Ad'm, v. Roosevelt 810 Dalgleisch v. Hodgson 814 Dallas V. Sellers 509, 513 Dallow, in re 890 Dalman v. Koning 551 Dalrymple v. Dalrymple 300, 306, 308, 313 V. Hillenbrand 357 Dalton V. Dalton 797, 985 V. Wickliffe 782 Daly V. Erricsou 1360 V. Magnire 676 Dalzell V. Davenport 447 V. Mair 1065 Dambman v. Butterfield 755 Dame v. Dame 1334 V. Kenne 47 V, Wingate 758 Damerell v. Protheroe 187 Damon v. Granby 967 Dan V. Brown 139 , 899, 1199 Dana v. Boyd 155 V. Bryant 1112 u. Conant 159 V. Cudney • 545 V. Fiedler 937, 946, 961, 972 V. Hancock 901, 902 V. Kemble 1318, 1327 V. Tucker 601 Dance i'. Robson 321 Dancer v. Crabb 900 Dane v. Jones 1267 1). Kirkwall 1254 u, Mallory 63 Danforth v. Carter 1200 V. Mclntyre 923 V. Walker 875 Daniel v. Daniel 589, 1000 V. Nelson 1196 V. North 237, 1350 V. Pitt 1190 V. Proctor 423 V. Ray 725, 1058, 1095, 1184 V. Toney 718 V. Wilkin 194 Daniell v. Daniell 589, 1000 Daniels v. Bailey 866 V. Burso 1365 V. Conrad 552 V. Hamilton 1285 V. McGinnis 1165 V. Mosher 510 .,. Potter 1204 TABLE OP CASES. Daniels v. Stone V. Woonsocket Danlin v. Daeglin Dann i-. Kingdom Danville Co. v. State Danziger v. Williams 640 1090 1026 431 294 822 Darby v. Ouseley 78, 438, 664, 665, 1092, 1103 D'Arcy v. Ketclium 808, 818 Darcy v. McCarthy 111 Dare Valley Co., in re 599 Darling v. Banks 1246 o. Dodge 64, 942, 991 V. Westmoreland 44, 512, 1295 Darlington v. Gray 800 V. Taylor 1140 D'Armond v. Dubose 699 Darrah v. Watson 102 Darrell v. Evans 15 Darrett v. Donnelly 1101 Darrigan v. R. R. 268 Darsti'. Gale 1316 a Dart V. Walker 1204 Dartmouth v. Holdsworth 584 Darwin v. Eippey 626 Daub V. Euglebach 1117 Dauphin v. U. S. ' 305, 309 Dave !i. State 565 Davenport v. Barnett 780 V. Cumming 518, 521, 839, 1119 V. Harris 147 o. Hubbard 789 V. Mason 909, 1042 V. McKee 519 V. Ogg 491 V. Kyan 431 Davenport Bk. v. Baker 931 a David V. R. K. 667 Davidson v. Bodley 1060 V. Bridgeport 669 V. Cooper 622, 623, 625, 626, 627, 693 V. Davidson 73 V. Delano 1135 V. De Lallande 516 V. Murphey 824 V. Norment 61 V. Peck 822 V. R. R. 41 V. Sharpe 803 V. Stanley 967 V. State 399 V. Vorse 1058 Davie v. Briggs 1274, 1275 Davies v. Dodd 149 V. Humphreys 226, 229, 239 V. Litton 1019 ■/. Lowndes 214, 216, 219, 220, 222, 771, 776 V. Morgan 187, 214, 218, 233 VOL. II. — 44 Davies v. Nicholas 1259 .,. Pierce 237, 1156, 1160 V. Ridge 1199 V. Waters 537, 573, 585, 588,, 593 Davies, in re 888 Davis V. Allen 521 o. Alston 129 V. Bank 466 1). Banks 294 V. Barrington 952, 1060 V. Bedsole 779 V. Black 1305 V. Bowling 357 V. Briggs 1274, 1276 V. Bromar 1040, 1136, 1298, 1347 V. Brown 779, 792, 988, 1058 V. Byrd 491 V. Campbell 262 V. Carlisle 629 V. Clements 120 V, Coleman 624 0. Com. 824 V. Dale 550 .;. Davis 358, 366, 797, 985, 1011, 1150 V. Detroit R. R. 488 V. Dinwoody 723 V. Drew 259 V. Dodd 149 o. Dunham 742 V. Dyer 469 V. Eastman 875 V. Elliott 447 V. Field 516 V. Pranke 558, 564, 569 V. Gaines 1312 V. Galloupe 958 ^. Glen 948, 1058 V. Green 1278 t>. Forrest 206 V. Fox 931 V. Fredericks 712 V. Freeland 114 V. Gray 115 V. Headley 797 V. Hedges 789, 790 (/. Higgins 726 u. Hudson 1307 V. Jenney 357, 629 V. Johnson 1318 V. Jones 927, 930, 1058, 1156 V. Judge 1157 o. Keene 1192 V. Keyes 559, 561 ... Lloyd 228, 241, 653 V. Loftin 977 V. Lowndes 220 V. Luster 931 u. Mason 9, 444, 718 689 TABLE OF CASES. Davis V. McFavlane 867 c. Moody 920 V. Moore 875, 910 V. Morgan 1059, 1060 a V. Murphy 758, 789 V. Neligh 529 V. Orme 205 V. Plymoutli 466 a. Pope 1058 V. R. R. 921 V. Rainsford 945 V. Randall 1058 V. Ransom 843 u. Reid 540 V. Rhodes 115 V. Richardson 697 V. Roby 566 V. Rogers 288, 300, 314, 1252 ,.. Sanford 681 V. Shaw 937 V. Sherman 1156, 1290 V. Shields 873 V. Sigouruey 139, 899 V. Spooner 737 v. Spurling 1104 V. State 49, 175, 177, 180, 437, 439, 441, 452, 569, 1308 V. Stern 1019 V. Strohm 1044 V. Talcott 790, 980 V. Tarver 476 V. Tift 879 V. Turner 135 V. White 122 V. Whitehead 1212 V. Williams 67 0. Wood 201, 206, 815, 831 V. Young 779 V. Zimmerman 259 Davis's Trusts 320 Davison v. Powell 682, 684 ... Stanley 859 Davisson «. Gardner 64, 785, 988 Davoue v. Fanning 798 Daw V. Eley 594 Dawes v. England 1061 V. Peck 876 V. Shed 1212 Dawkins r. Lord Rokeby 604 b, 722 V. Smith 1319 Dawley v. State 397 Dawson v. Atty 1170 V. Callaway 1168 L\ Dawson 974 V. Graves 141 u. Jay 817 V. Mills 1156, 1160 V. Norfolk 1349 V. Smith 895, 900 V. Wait 466 Day V. Billingsly 1061 690 Day V. Cooley 549 a. Day 892 V. Floyd 153 V. King 1308 V. Leal 946 V. Moore 96, 740 V. R. R. 883 I'. Raguet 357, 364 V. Stickney 545, 566 V. Trig 945 V. Wilder 1214 Dayton u. Kelly 1172 V. Mintzer 775, 810 V. Warren - 1042 Dazey v. Mills 1207 Deacle v. Hancock 186 Deakers !'. Temple 1205, 1214 Deakiiis v. Alley 931 Dean v. Adams 1044 11. Bittner 1277 V. Border 152 V. Carruth 1060 6 a. Fuller 508, 509, 932 V. Mason 1014 u. McLean 444 u. Swoop 965 V. Thatcher 783 V. Warnock 466 Deane v. Packwood 420 Dear v. Knight 549 V. Reed 782 Dearborn v. Cross 904, 1017, 1018, 1026 V. Dearborn 182, 183 De Armond v. Adams 797 .,. Neasmith 24, 639, 647 Deasy v. Thurman 1163 De Bode v. R. 226, 309 De Bow V. The People 290 De Bruhl v. Patterson 1165 Decatur v. Howell 7fl2 Deck V. Johnson 1215 Decker !■. Judsou 770 u. Livingston 1362 De Cosse Brissao i>. Rathbone 801 Dedrio v. Hobson 397, 540 De Ende v. Wilkinson SuS Deer v. State 397 Deerfield v. Arms 1342 Deering v. Metcalf 412 Deery v. Cray 760, 942 Deford v. Seinour 1064 De Forest r. Bloomingdale 1362 V. Butler 823 De Gaillon o. L'Aigle 1112 De Grieif v. Wilson 7C0 Degelos v. Woolfolk 770 De Haven r. De Haven 218 V. Landell 1352 Dejarnette v. Com. 452 Deininger r. McConnel 115 Deisher !•. Stern 909 TABLE OF CASES. Deitsch v. Wiggins 21 Dendy v. Simpson 45 Deitz V. Regnier 63 Deuisou V. Deuison 84 Delafield v. De Grauw 1014 V. Hyde 796, 808, 814 V. Hand 110 Denman v. Campbell 482 V. Pariali 451, 1252 V. McGuire 799 De La Guerra v. Newhall 792 Denmeed v. Maaok 320 Delahay v. Clement 702 Denn v. Barnard 1332 Delamater v. People 464 V. Pond 151, 668 Delamere v. The Queen 1305 B. White 1217 Deland v. Amesbury 1063 V. Wilford 943 V. Bank 417, 1140 Denner v. Ins. Co. 1175 De Lane v. Moore 141 Dennison v. Page 608 Delaney v. Anderson 936 Dennett v. Crocker 77 u. Robinson 1360, 1364 V. Dow 550 V. Rogers 1021 Denney v. Moore 64 Delano v. Bartlett 357 629, 1060 6 Dannie v. Williams 1195 V. Goodwin 936, 955, 1287 Dennis v. Barber 90, 133, 152 V. Jopling 291 w. Brewster 147, 1273 V. Montague 854 V. Chapman 1108 Delaplaine v. Crenshaw 980 a •J. Crittenden 421 V. Hitchcock 1150 V. Dennis 1021 Delarue v. Church 1348 1-. Hopper 115 Delaunay v. Burnett 120 V. Van Vay 674 Delava Co., in re 1170, 1183 V. Weekes 1009, 1011 De Lavalette v. Wendt 1064 Dennison v. Benuer 1167 De la Vega v. Vianna 962 V. Leech 781 Delaware, The 1070 a. Otis 661, 662 Delaware & Chesapeake Steam V. Page 608, 1298 Towboat Co. v. Starrs 437 Dennison's Appeal 1012 Delaware St. C. v. Starrs 444 Denniston v. MoKeeu 1360 Delaware Towboat Co. ;,. Starrs 446 Denny v. Smith 765 Delesline v. Greenland 1190 Densler v. Edwards 392 Dellinger's Appeal 431, 466 Denslow v. Van Horn 52 Deloach v. Worke 831 Dent V. Ins. Co. 937 Delogny v. Rentoul 1090 !'. Steamship Co. 939, 961 Delony v. Delony 726 Denton v. Erwin 1110 Delta, The 601 a. Hill / 130 Delventhal v. Jones 901 o. McNeil 1170 Demarest v. Darg 784 V. Perry 1157 De Medina v. Owen 1103 V. Peters 1058, 1059 Dement v. Stonestreet 760 V. Reddy 796 Dement, ex parte 380, 456 Depau V. Humphreys 1250 Demeritt v. Bickford 879 Depeau v. Waddington 1060 Demerrit v. Meserve 1170 Depoutfes V. Kendall 891 Demerritt v. Randall 446, 718, 721 Depue V. Place 1077 Demesmey v. Gravelin 930 Derby v. Jacques 781 Deming v. Lull 1213 V. Salem 655, 656, 657 De Mora v. Concha 760, 765,786,810 Derby's case 1274 Dempsey et al. u. Kipp 923 Derby Bank v. Lumsden 490 Den V. Cubberly 942, 946 Derickson v. Whitney 123 V. Dowman 825 Derisley v. Custance 862 u. Fulford 104 De Roos Peerage 210, 220 V. Gaston 1302 De Rosas, in re 996 V. Gustin 111, 115 De Rothschild v. U. S. 309 V. Hamilton 821 Derrett v. Alexander 135 V. Herring 185 Derry Bank v. Baldwin 1069 (1, Lippmann 801 De Rutzen v. Farr 234, 235 B. Vanoleve 399, 400 De Sailly v. Morgan 557 V. Van Houten 726 Desborough v. Rawlins 581, 587, 588, V. Wiuans 981 589 Bench v. Dench 1008 Desbrow v. Farrow 691 708 TABLE OF CASES. Desbrowe v. Wetherby 626 Deshon v. Ins. Co. 5Y0, 927 Des Moines Co. v. Hinkley 1062 De Sobry v. De Laistre 119, 303, 321, 557, 559 Despard v. Wallbridge 1031, 1032 Despau v. Swindler 324 Dessau v. Bours 961 Desverges v. Desverges 1354 De Tastet v. Crousillat 61 De Thoren v. Attorney-General 1297 Detrick v. Shawan 782 Detroit v. Houghten 773 Detroit R. R. o. Forbes 863 u. Van Steinburg 175, 260, 267, 444, 512, 513 Detweiler v. Gropp 444 Deutsch V. Kanders 878 Devall V. Watterson 836 Devanbagh i'. Devanbagh 1220 Devecom v. Devecom 890, 895 Dever v. Akin 1017, 1019 Devin v. Himer 632 Devine v. Wilson 706, 1348 Devlin v. Williamson 661, 662 Devling v. Little 262 1'. Williamson 116 Devonshire v. Neill 946 De Voss V. Richmond 1170 Dewees v. Colorado Co. 336 V. Lookhart 965 Dewett V. Piggott 1154 Dewey v. Field 1066, 1143, 1144 V. Goodenougb 1216 V. Hotchkiss 620 u. Osborn 768 V. Williams 551 De Whelpdale v. Milburn 1116, 1119, 1156 De Winton v. Brecon 980 a De Witt V. Barley 451, 612 V. Root 879 V. Walton 1061 Dewling v. Williamson 693 De Wolf V. Johnson 962 V. Pratt 856 0. Strader 681 Dexter v. Booth 427, 429, 431, 683 V. Hall 452 r. Hayes 1315 V. Paugh 820 V. Whitbeok 983 Deybel's case 339 Dezell V. Odell 1066, 1143 Dial V. Moore 1053 Diamond v. Tobias 1360, 1363 Dibble v. Rogers 192 Dicas V. Brougham 324 V. Lawson 382, 496 Dick V. Balch 111 V. State 546 692 Dickens v. Beal 123 Dickenson, in re 535 Dickenson v. Breeden 287 V. Colter 879, 1180 V. Fitchburg 446, 480 t. Johnson 451 Dickerman v. Graves 429, 430, 431 Diokerson v. Brown 84 V. Burke 1301 V. Commis. 952 V. Turner 1192 Diokes v. State 261 Dickey v. Malechi 139 Dickins, in re 890 Dickins v. Miller 693 Dickinson v. Barber 451, 510, 512 V. Clarke 1192, 1199 V. Coward 1153 u. Dickinson 612, 616, 693, 1050 V. Dustin 397, 517 V. Gay 959 V. Glennay 1029 V. Hayes 811 V. Sti'dolph 890 V. Trenton 796 Dickson v. Breedon 132 V. Burks 1044 V. Fisher 980 V. Frisbee 883 V. Grissom 118 V. Harris 921 o. Lord Wilton 604 Dictator v. Heath 1022 Didlake v. Robb 1360 Diehl V. Emig 141, 466, 622, 1313 Diereks v. Roberts 1058 Dietrich <,. Koch 1049 V. R. R. 1174 Diez, in re 123, 302, 303 Diffenbach v. Ins. Co. 468 Dikeman v. Parrish 640 Dikes V. Miller 61, 115 Dill V. Offenheimer 412 Dillard v. Dillard 1199 a V. Scruggs 262 Dille V. State 380 Delleber v. Ins. Co. 268, 269, 452, 606 Diller v. Johnson 931 V. Roberts 833 Dillett V. Kemble 1142 Dilley v. Love 265 Dillingham i\ Roberts 412 Dillman v. Crooks 513 Dillon V. Anderson 482, 955 V. Barnard 840 Dilly V. Warren 1165 Diraan v. R. R. 1017, 1019, 1021 Dimick v. Downs 47, 562 t;. State 512 TABLE OF CASES. Dingle w. Hare 967 Dodge V. Savings Co 1156 a, 1157, Dinkins w.. Samuel 1298 1163, 1163 a Dinkle v. Marsliall 1019 V. Van Lear 872, 1127 Dinmore, in re 888 Dodsley v. Varley 875 Dishazer v. Maitland 733 Dodson V. Sears 686 Dismukes v. Tolsou 466 Doe V. Allen 938, 997, 1009 Di Sora u. Phillips 800, 302 V. Andrews 378 379, 589, 592, 614, D'lsraeli v. Jewett 648' 653, 654, 656, 1274 District v. Dubuque 980 o V. Arkwright 639, 1169 Dist. of Col. V. Armes 402, 403 u. Ashley 1005 V. Johnson 641, 644 V, Barnard 1333 V. R. R. 764 !). Barnes 653, 655, 1315 Ditch V. Vollhardt 1064 V. Barton 202, 216 Ditohburn v. Goldsmith 283 V. Baytop 1149 Divers v. Fulton 155 u. Benson 965 Diversy v. Will 492 0. Beviss 281, 232, 246, 941 Divoll V. Leadbetter 421 V. Beynon 998 Dixon V. Buck 1290 V. Bingham 625, 626, 1313, 1314, u. Cock 816 1353 V. Cook 1026 o. Bird 1184 V. Doe 640 V. Bower 1005 V. Edwards 466, 1060 V. Bray 654, 656 V. Hammond 1149 V. Bridges 859 V. Nieoolls 332 V. Brown 1315 V. R. R. 357 , 1318, 1319 v. Burdett 732 V. Thatcher 115 V. Burt 1002 V. Vale 539 V. Burton 229 V. Zadek 535 V. Calvert 811 Doak V. Wiswell 789 u. Campbell 210 Doane v. Badger 1340 v. Caperton 324 V. Eldridge 622 V. Cartwright 77, 78, 639 V. Garretson 449 V. Catamore 629, 630 V. Willcutt 1040 V. Challis 766 Dobbins v. U. S. 1176 V. Chambers 694, 735 Dobbs V. Justice 262 0. Chichester 945 u. Justices 359, 740 V. Cleveland 736, 1351, 1352 Dobell V. Hutchinson 870, 872 V. Clifford 112, 150 V. Stephens 931 V, Cockell 157 D'Obree, ex parte 990 V. Colcombe 236 Dobson V. Campbell 1305 V. Cole 82, 1156 V. Collins 883 «. Cook 1333, 1352, 1353. 1357 0. Pearce 798, 809 V. Coulthred 226, 1156, 1157, V. Raoey 429 1332 V. Richardson 490 u. Courtenay 859 Dock V. Hart 902 V. Cra^o 1259 Dodd V. Acklom 859, 860 V. Date 587, 593 V. Farlow 958, 959 V. Davies 202, 214, 216, 704, 888, 0. Ins. Co. 355 1274, 1351, 1352 o. Norris 50, 51, 541, 542 V. Deakiu 1274, 1279 Dodder v. Huntingfleld 317 V. Derby 177, 769 Dodge V. Bache 515, 1173 0. Durnford 723 V. Coffin 1302 u. Dyeball 1333 V. Dodge 861 V. Egremont 537 V. Dunham 505 V. Eslava 291 V. Haskell 29, 626 V. Evans 179, 890 V. HoUingshead 1052 V. Fleming 84 o. Hopkins 977 u. Ford 935 u. Morse 678, 688 V. Forwood 859 V. Nichols 1050 u. Foster 177 t). Pinckney 21 V. Fowler 197, 656 V. Potter 946 V. Frankis 1154 693 TABLE OF CASES. Doe i V. Galloway 945 Doe V. Perkes 896, 900 V. Gardiner 1352, 1357 V. Perrat 924 V. Gilbert 585 V. Pettett 1160 V. Gildart 1360 .,. Phelps 210 V. Gladwin 1018 u. Phillips 196, 703 u. Gore 824 V. Poole 859 u. Green 1156 V. Powell 178 u. GrifSn 205 , 223, 1279 V. Pratt 1156 V. Gunning 66 V. Prettyman 740 V. Gutacre 653 o. Pulman 74, 199 V. Hampson 1339 V. Randall 205, 218 V. Hardy 1009 u. Rawlings 703 V. Harris 569, 590, 896 | V. Reagan 451, 555 V. Harvey 61, 217 V. Reed 1352 V. Hawkins 236, 1170 V. Richards 1184 V. Hilder 331, 1351, 1352 V. Richarby 1156 V. Hiscoks 937, 938, 946, 992, 993, V, Ridgway 202 996, 997, ?99, 1001, 1004, 1008 V. Roberts 194, 827, 1175 V. Hodgson 157 0. Robinson 1170 u. Hubbard 993 V. Robson 226 . 229, 239 V. Huddart 766 V. Roe 66, 185, 189, 732, 740, V. Hutliwaite 999 821, 944 V. Jackson 942 V. Ross 72, 74, 90 131, 150 0. James 576 c. Rosser 800 u. Jesson 1274 o. Rowlands 356,357 V. Johnson 356, 740 V. Samples 196 , 703, 732 V. Jones 237 , 862, 1157 V. Samp ton 703 V. Keeling 146, 198 V. Seaton 581 , 587, 639 V. Kemp 45,46 V. Shallcross 1012 V. Knight 625 V. Shelton 1040 t. Lakin 670 V. Sisson 21, 44, 187 V. Langdon 585 V. Skinner 247, 688 V. Langfield 237 240, 1156, 1157 V. Sleeman 185, 187 u. Ld. Jersey 1002 V. Somerton 162 V. Lea 958 u. Spinner 246 V. Lewis 1314 V. Spitty 161 V. Litherlaud 1161 V. Stacey 236 V. Lloyd 282 741, 1052, 1353 V. Stanton 859 f. Lyne 704 V. Statham 1044 V. Martin 939 946, 1002, 1353 u. Steel 872, 1119 V. Mason 1313, 1314, 1353 V. Stratton 855 V. McCaleb 141 V. Suokermore 707, 708, 712, 717, u. Michael 227 , 234, 1274 718 V. Mobbs 236 V. Sybourn 1119 V. MofiFatt 585 V. Taniere 1259 V. Morgan 997 V. Thomas 188, 861, 1362 V. Morris 62 u. Thompson 379 0. Mostyn 824 V. Thyniie 234 v. Murless 828 V. Turford 238 239, 242 246, 688, u. Needs 993, 997 1243 V. Nepean 1276 V. Vowles 229 V. Newton 707 V. Wainwright 736, 1156, 1213 V. Oliver 1082 V. Walley 1274, 1279 V, Owen 734 V. Waterton 1352 V. Palmer 630, 1008 V. Watkins 587 v.- Passingham 1H9 V. Webber 265 u. Paul 729 V. Webster 1157, 1160 V. Pearce 195 <,-. Whitefoot 142 V. Pearsey 1339 V. Whitehead 356 V. Pembroke 210 V. Wilford 943 V. Penfold 725 u. Williams 1352 694 TABLE OF CASES. Doe !'. Wilson u. Wittoomb V. Wolley Doeblin v. Dunoau Doer V. Osgood Doglioni v. Crispin Dotierty v. Thayer Dokar v. Hasler Dolan V. Briggs Dolder v. Bank V. Huntingfield Dole V. Allen o. Fellows V. Johnson V. Thurlow u. Wilson V. Woolridge Dolittle !■. Eddy Dolke V. State Doll V. Kathman 706 129, 141, 247 734 1259 492 801, 811 668 429 986 323 338 657 750 439, 441 115, 391 318 1205 450 1227 1017 Dollar Savings Bank v. Bennett 487 Dollarhide v. Muscatine Co. 1319 Dnlling v. Evans 901 Dolloff V. Hartwell 980 DoUner v. Bingham 625 ' V. Lentz 562 Dolph V, Barney 286 Dolphin V. Aylward 785, 787 Domes. Miss. Appeal 1002 Domestic Ins. Co. u. Anderson, 78, 1015, 1026 Don V. Lippman 316, 803 Dond V. Hall 715 Donaghoe u. People 708 Donahue v. Case 185 V. People 397, 485, 567, 1289 V. Shedrick 21 Donald v. Hewitt 311 c. McKennan 824 Donaldson v. Jade 831 V. Phillips 643 V. R. R. 361, 439, 667 V. Thompson 814 Doncaster v. Day 177, 180 Donegall v. Templemore 941 Donellan v. Donellan 414 u. Read 859, 883 Donelson v. Taylor 393 Donkle v. Kohn 396 Donlery v. Montgomery 466, 468 Donley v. Bush 920 u. Tindall 948 Donn V. Lippman 316, 803 Donnell «. Jones 501, 509, 823 Donnelly v. State 896, 529, 573, 1138 Donnison v. Elsey 188 Donohoo V. Brannon 100 Donohue v. Henry 414 V. People 485 Doody V. Pierce 466, 468, 469 Dooley v. Cheshire 1147 Dooley v. Wolcott Doolittle V. Blakesley Doon V. Donaher V. Ravey Doran's case Doran v, Mullen Dorland's Est. Dorman v. Ames Dormay's Goods Dorne v. Man. Co. Dorr V. Fisher V. Munsell * Dorrell v. State Dorrett v. Meux Dorsey v. Dorsey u. Eagle V. Hammond V. Kendall u. KoUick V. Smith V. Warfield Dorsey's Appeal Dortie v. Dugas Dost, Goods of Dossett V. Miller Doster v. Brown Dotts V. Fetzer Doty V. Brown V. Janes u. State Douce, in re Doud V. Guthrie Dougan v. Blocher V. Trans. Co. Dougherty v. R. R. 0. Rosenberg Doughty V. Doughty V, Hope Douglas V. Fellows Douglass, in re Douglass V. Bank u. Dakin V. David V. Davie V. Forrest V. Hart V. Holme V. Howland 833, 980 944 157 1090 537 500, 1243 496 120 306 1175 357 1019 758 66 288, 1168 1026 775 1044 942 795 1134 726, 727 451 290 1021 306 570 444, 622, 684 1199 64, 805 1362 371 889 346 909 40 38 883 433 63 997, 1001 389 294 1273 788 1089 803 683 1337 869 V. Mitchell 872, 1100, 1101, 1126,1127, 1184, 1227 V. Sanderson 201 V. Snow 469 V. Tousey 49, 53 V. Wickwire 982 V. Wood , 540 Douglass Co. V. BoUes 1316 a Douthill 0. Stinson 338 Dove V. State 86, 451, 452 Dow V. Clark 512 695 TABLE OF CASES. Dow V. Jewell 1157 u. Julian 436 V. Moore 1061 V. Sawyer 678 V. Way 901 Dowdall V. E. R. 1177, 1290 Dowdell V. Neal 416 Dowden v. Fowle 1213 Dowdney w. Palmer 393 Dowell V. Dew 909 Dowler v. Cushwa 151 Dowley v. Winfleld ' 1108, 1280 Dowling V. Blackman 1309 V. Hodge 64, 988 V. MoKenney 863 V. State 47 Dowman v. Jones 1061 Down V. Ellis 414, 467 Downer v. Chesebrougli 1059 V. Dana 555, 557 V. Morrison 872, 1127 V. Smith 640, 648, 644 Downes v. U. E. 466, 522, 523, 1101 Downey v. Andrews 466 Downie v. White 1014 Downing v. Butcher 47, 53 u. Pickering 151 V. State 443, 1265 Downs V. Belden 470, 1166 y. Cooper 1190 V. R. E. 466, 522, 523, 1101 V. Rickards 253 V. Scott 1360 V. Sprague 444 Dows V. Bank 1070, 1141 V. McMichael 982 V. Montgomery 875 0. Swett 878, 879 Dowty V. Sullivan 1199 a Dowzelot V. Rawlings 1196 Doyle V. Bradford 339 V. Clark 259 V. Eeilly 784 V. Eichards 991 V. St. James's Church 1077 Dozier v. Joyce 324, 559 Drahle v. Donher 155 Draggoo v. Draggoo 490 V. Graham 99 Drake v. Dodworth 921 u. Drake 999, 1001 V. Duveniok 1803 V. Eakin 489 V. Flewelleu 294 V. Foster 393 V. Glover 288 V. Goree 961 V. Mooney 1318 V. Morris 117 V. Seaman 856 t>. Starks 920 696 Drake v. State 378 V. Wise 1143 Drant v. Brown 77 Draper v. Clemens 123 V. Draper 391, 399 V. Hatfield 115, 152, 1090 V. Saxton 448, 452 V. Snow 869, 977 Draughan v. Bunting 880 V. White 1064 Drawn v. Allen 53 Draycott r. Talbot 653 Dreier v. Ins. Co. 606 Dreishack v. Berger 142, 147 Drennen v. Liudsey 490, 555 Dresbaoh v. Minnis 1066, 1143 Dresser v. Ainsworth 357 Drew V. Arnold 1052 v. Prior 708 V. Simmons 466 V. Swift 942, 945 u. Tarbell 427, 430, 431 u. Wood 545, 566, 622 Driggs V. Smith 517 Drinker v. By erg 1026 Drinkwater v. Porter 187, 188 Driscoll V. Fiske 944 V. Smith 1307 Driver v. Miller 1061 Drohn v. Brewer 47, 529 Drown v. Allen 53 Druiff V. Pai-ker 1019 Druley v. Hendricks 1044 Drum V, Drum 623 Drumm v. Bradfute 123 Drummond v. Atty.-Gen. 940, 941 o. Hopper 1331 V. Magruder 118 V. Prestman 770, 1212 Drumright i'. State 1136 Drury's case 1338 Drury i>. Hervy 1138 V. R. E. 185, 194 V. Tremont Imp. Co. 1042 v. Young 893 Druse !•. Wheeler 1315 Dryden v. Frost 903 a 0. Hanway 1031, 1035 Drysdale's Appeal 1360 Duane, in re 1243 Du Barre v. Livette 582, 597 Dublin case 507 Dubois V. Baker 511, 713, 718 V. Bearer 1343 V. Canal Co. 693 u. Kelly 863 a V. Newman 740 V. R. E. 787 Du Bost V. Beresford 253, 254, 976 Duchess of Kingston's case 593, 606, 758, 765, 776 TABLE OF CASES. Duchess di Sora v. Phillips 306 Duncan v. Helms 760 Duckwall 0. Weaver 730 „. Hill 1243 Du coign V. Schreppel 681 u. MeCuUough 505 Ducommun v. Hysinger 103 n. Seeley 525 Dudgeon v. Pembroke 925 V. Stewart 810 Dudley v. Bachelder 1031 V. Stokes 814 V. Bolles 570 .;. Taylor 290 V. Bosworth 1042 V. Watson 251 V. McCluer 47 Dunckle v. Wiles 64, 786, 793 V. Stiles 789 Duncombe v. Prindle 290, 980 a V. Sumner 726 , 727 Duncuft V. Albreoht 864 V. Vose 921 Duudas V. Dutens 910 Duel t\ Fisher 392 Dundas's case 1220 Duer V. Thweatt 982 Dundee Co. v. Cooper 305 Duff V. Ivy 920 Dung V. Parker 901 (/. Lyon 450 Dunham v. Averill 1002 V. Wynkoop 741, 1052 V. Bower 822 Duffee, in re 630 V. Chatham 953 Duflferin Peerage 653 u. Chicago 95, 108, 114 Duffey V. Congregation 740, 1168 V. Forbes 574 Duffie V. Corridou 886 V. Gannett 942 V. Phillips 177 V. Ins. Co. 814 Duffield V. Delancey 356 V. Raokliff 48 Duffin V. People 91 Dunham's Appeal 512 V. Smith 588 Dunhart v. Reinhart 943 Duffy, in re 1008 Dunlap V. Cody 796 Duffy ti. Com. 402 V. Glidden 64 , 689, 988, 989 V. Duffy 630 V, Hearn 430, 507 u. Hickey 1118 V. Biggins 1323, 1324 V. Hobson 697 V. Hooper 685 V. Wuusch 879 Dunlop V. Dougherty 118 Dufresne v. Weise 565 , 569 Dunn V. Choate 147 Dugan V. Gittings 869 882 , 910 V. Devlin 123 V. Mahoney 518 ,519 , 520 V. Dunn 552, 903 V. Nichols 875 V. Dunnaker 549 Duggins, in re 889 V. Hayes 668 Duke V. Brown 377 V. Keegin 837 u. Nav. Co. 661 i). Miller 1313 Duke of Beaufort v. Smith 187 V. Moore 909 D. of Cumberland v. Graves 1274 17. Murray 788 D. of Newcastle v. Clark 1340 V. People 557 D. of Somerset v. France 44 V. Pipes 574, 783, 1064 Dukes V. Broughton 758 1/. Snell 1163a Dulaney v. Dunlap 638 u. Snowden 1276 Duling V. Johnson 946 17. Sparks 1061 Dumaresly !). Fishly 83 V. Tharp 882 Dumas v. Hunter 61 V. Whitney 678 V. Powell 141 Dunn's case 30 Dumont v. Pope 123 Dunne v. Decry 474 Dunagan v. Dunagan 1064 V. English 366 Dunaway v. School Direct. 1165 V. Ferguson 866 Dunbar v. Mnlry 253 Dunuell v. Henderson 1196 V. Parks 602 726 ,727 Dunning v. Rankin 147 Dunbarton v. Franklin 84 V. Roberts 76, 617, 872 Duncan v. Bancroft 792 Dunning & Smith v. Roberts 76 V, Beard 713 , 733 Dunphy v. Ryan 863 V. Blair 902 Dunraven v. Llewellyn 185, 187, 188, V. Com. 64 , 988 190 0. Duncan 83 Dunsford v. Brown 799 V. Gardine 466 Dupays v. Shepherd 317 V. Gordon 466 Du Point V. Davis 208 697 TABLE OF CASES. Dupre V. McCright Diipree v. McDonald u. State Dupuis V. Thompson Durance, in re Durand v. Abendroth. Durant v. Allen v. Ashmore u. Essex Co. Durbrow v. McDonald Durein v. Pontius Durgin v. Danville V. Ireland V. Somers Durham, in re Durham v. Allen V. Beaumont V. Daniels u, Holeman V. State V. Williams During v. Mosehino Durkee v. Leland V. R. R. Durnham v. Clogg Durrell u. Bederly V. Evans Dusham v. Benedict Dussert v. Roe Dustin V. Rose 1077 1021 178 1318 891 814 878 900 781 1331, 1332 290 126B 1022 1090 890 1148 569 294 404, 409 568 355 130 155, 585 79, 619, 1128 632 436 76, 873 509 201 33 Dutchess Co. Bank v. Ibbotson 123 Dutillet V. Blanchard 127, 638 Duttenhoffer v. State 583, 584 Dutton u. Shaw 788 u. Solomonson 876 V. Tilden 931, 1064 V. Woodman 572, 1154, 1200 Duval V. Bibb 1048, 1049 Duvall V. Covenhoveu 1190, 1191 ^. Darby 515, 1101 V. Davey 53, 56, 462 u. Ellis 101 V. Marshall 314 V. Peach 63 Dwelly V. Dwelly 422 Dwight V. County 446, 447 Dvrinel v. Pottle 682 Dwinelle v. Henriquez 489 Dwyer v. Collins 155, 160, 585 u. Dunbar 60 Dyce Sombre v. Troup 356, 1252 Dye V. Com. 178 0. Davis 429 Dyer, in re . 616 Dyer v, Ashton 1114 V. Clark 864 V. Dyer 513, 1035 u. B'lint 337 v. Homer 423 «. Hopkins 466, 763 V. Hudson 133 698 Dyer u. Last 325 V. Morris 491 u. Rich 977 u. Soott 1057 o. Smith 130, 300 302, 303, 305 V. Snow 116 Dygert v. Copperna 61 Dyke v. Williams 203, 215, 216 Dykers v. Townsend 75, 357, 873, 1061 Dynes v. Hoover 778 Dyson v. Beoham 490 V. Peerage case 1268 0. Wood 824 Dyte V. Guardians of St. Pancras 694 E. Eadie v. Slimmer 931 Eads V. Williams 824 Eady v. Wilson 980 Eagaii V. Connelly 289 Eagle ;;. Browne 446 u. Defries 359 V. Emmet 1276 Eagle Bank v. Chapiu 81, 161 Eagle Co. v. Defries 931 a Eagle Man. Co. v. Bradford 108 Eagleton v. Gutteridge 624, 632 I'. Kingston 707, 709, 717 Eakin v. Vance 135 Eakle v. Clarke 1199 Eames v. Eames 505, 1284, 12S9 V. Whitaker 559 Ean V. Snyder 1252 Earbee v. Wolfe 1301 Earl V. Clute 1163 a V. Harrison 466 V. Lewis 198, 670 V. Shoulder 838 V. Tapper 177, 268 Earl's Trusts, in re 123, 320 Earl of Bandon u. Becher 797 Earl of Bedford v. Bp. of Exeter 772 Earldom of Perth. See Perth Peerage Earle v. Grout 6S7 u. Picken 1093 V. Rice 1021, 1038 V. Sawyer 683 Earley v. Enwee 1348 0. Wilkinson 956, 1061 Earp V. Lloyd 755 Easou V. Chapman 565 East V. Chapman 539 V. Dolihite 909 East Brandywiue R. R. v. Ranch 1290 East B. V. Taylor 1180 Easter v. Allen 566 Easterly v. Barber 1055, 1060 a Eastern Counties Railway Co. u. Hawkes 694 TABLE OF CASES. Eastern R. R. v. Benedict 75 East India Co. v. Donald 487 Eastland v. Jordan 740 Eastman v. Amoskeag 153, 512, 1090 V. Bennett 262 V. Clark 988 V. Cooper 986 V. Dearborn 793 V. Harteau 826 V. Martin 223 V. Waterman 980 Eastmure v. Laws 779 Easton v. Hodges 9 t. Pratchett 106 V. Tel. Co. 836, 1119 Eastport v. East Maohias 114 East Ten. R. R. v. Duggan 1174 East. Transp. Line v. Hope 444 Eastward v. People 346 Eaton i,-. Alger 1064 V. Bell 968 V. Campbell 115, 137, 740 V. Corsou 1165 V. Farmer 538 o. Green 1031 u. Hasty 805 o. Rice 514 V. Smith 961 V. Talmadge 201, 223, 1277 V. Tel. Co. 21 V. Whltaker 909, 910 u. Wolly 513 Eaves v. Harbin 469, 475 a Ebbin v. Wilson 515 Ebert v. Gending 466 Eberts v. Eberts 116, 998 Eborn v. Zumplemann 91 ' Eby V. Eby 518, 1165, 1360, 1364 Eby's Appeal i:07 Ecoles V. Harrison 1208 Eccleston v. Speke 1208 Eck V. Hatcher 489 Ecker v. McAllister 484, 557 ^Eckersly v. Flatt 899 Eckert o. Cameron 1157, 1163 V. Eckert 909 V. Triplett 1199 a Eckford v. De Kay 464 Eokles V. Carter 1044 Ector V. Welsh 1077 Edan v. Dudfleld 875 Eddy, The 1070 Eddy V. Bond 626 D. Peterson 61, 123 V. Roberts 880 Edeck V. Ranuer 699 Edelen v. Gongh 707 f. White 1059, 1060 Eden v. Blake 922, 926 Edgar v. McArn 269 Edge V. Strafford 854, 863 Edgell V. Sigerson 797 Edgen v. Board 290 Edgerly v. Emerson 923 Edgerton v. Edgerton 1044 V. Hodge 877 V. Jones 1052 V. Mathews 873 Edie V. East Ind. Co. 298 V. Kingsford 61 Edington v. Ins. Co. 269, 606, 1163, 1163 a Edmond's Appeal 1021 Edmonds c. Challis 157 V. Edmonds 357 c: Ld. Foley 756 u. Low 974 V. Walker 501 Edmondsou v. Lovell 740 Edmund's case 1253, 1265 Edmunds v. Bushell 1171 V. Downs 901 V. Greenwood 490 V. Groves 1075 0. Hooper 1061 Edrington v. Harper 1031 Edson r. Freret 1110 V. Munsell 1349, 1350 Edwards, in re 890 Edwards's Est. 135, 355, 1297 Edwards v. Campbell 1362 o. Crook 225, 977 V. Derrickson 1156 V. Edwards 90, 136, 147, 980, 1035 u. Ford 1108 ■c. Hall 864 V. Hancher 1064 V. Ins. Co. 873 u. Jerons 1044 V. Nichols 678 V. Norton 1119 V. Noyes 140, 141 V. R. 990 V. Scull 632 V. Sullivan 555, 566, 726 V. Tipton 942 V. Tracy 1192, 1193, 1194 V. Wakefield 490 t. Warner 33 V. Whited 795 V. Williams 1138 Edye r. Salisbury 993 Egan V. Cowan 712 V, State 336 Egbert v. Egbert 451, 530, 1252 V. Greenwalt 608 Egerton v. Mathews 869 Egery v. Buchanan 833 Egg V. Barnett 1362 Eggers V. State 454 V. White 956 699 TABLE OF CASES. Egleton V. Kingston 512 Eichelberger v. Gill 1023 V. Pike 834 V. Sififord 741 Eidt V. Cutter 439 Eighmie v. Taylor 1050 Eimer v. Eiohards 784 Eitelgeorge v. Building Ass. 1209 Ekstein v. Green 786 Ela V. Edwards 887 u. Gorham 290 Elam V. State - 565 Elbin V. Wilson 510 Elbing Act. Ges. a. Claye 950 Eld V. Gorham 290 Elden v. Keddell 66, 67 Elder's App. 931 a Elder v. Elder 936, 1021 V. Hood 1042 V. Ogletree 451, 996 Eldredge v. Smith 961 Eldridge v. Knott 1353 V. Smith 449, 969 Elfelt V. Smith 447 Eliott V. Smith 788 V. Thomas 874 V. White 123 Elizahethtown Savings Inst. v. Ger- ber 808 Elkin V. Janson 356, 357 Elkins V. McKean 263 Ellen V. Ellen 135 EUenborough's case 1220 EUice V. Rowpell 182 EUicott V. Martin 1301 o. Pearl 185, 192, 201, 213, 216, 248, 570 Ellinger v. Crovrl 1048, 1049 ' Elliot V. Haydeu 1119 V. Kemp 1336 Elliott V. Boyles 528 u. Connell 920 V. Dudley 1193, 1199, 1200 V. Dycke 228, 726 V. Elliott 1060 V. Evans 295 V. Harton 942 0. Hayden 773, 1112, 1116 u. Kent 1332 V. Maxwell 1031 V. Merrick 130 V. Pearce 702 V. Peirsol 205, 214, 795 ti. Sackett 1021 V. Shaw 473 a V. Stocks 130 I/. Van Baren 268, 509, 512, 1246 u. Weed 936 Ellis V. Bitzer 773 V. Bray 856 V. Buzzell 1246 700 Ellis V. Carr 1319 V. Crawford 946, 949 V. Dempsey 1204 u. Eastman 292 V. Ellis 912, 1297 V. Houston 994 V. Howard 1167 V. Hufif 72, 90, 135 V. Kelley 796, 797 V. Lindley 1246 V. Madison 826, 980 V. Maxson 314 V. People 713 V. Portsm. R. R. Co. 360 . V. Reddiu 338 V. Shaw 474 V. Short 40 V. Smith 142 V. Tone 446 V. Watson 1200 V. Willard 1070 Ellison V. R. R. 980 a V. Weathers 599 Ellmaker v. Buckley 529, 550 V. Ins. Co. 936, 1014 Ellmore v. Mills 98 Ellsworth V. Moore 1273 V. R. R. 977 Elmendorf v. Taylor 311 Elmendorff v. Carmiohael 251, 636 Elmore v. .Jaques 466 V. Kingscote 870 V. Stone 875 Elms V. Elms 896, 900 Eloi V. Eloi - 451 Elsam V. Faucett 47, 51 _ Elson V. Spraker 879 Elston V. Castor 1318 o. City of Chicago 982 V. Kennicott 1064 Elting V. Sturtevant 447 Elton V. Larkins 549, 551, 961, 1184 Elwell V. Cunningham 141 o. Hinckley 640 Elwes V. Elwes 1022 V. Mowe 863 a Elwiok V. Merrick 129 Elwood V. Beyrner 787 V. Deifendorf 1199 17. Flannagan 288 V. Lannon 836 Elworthy v. Sandford 146 Ely V. Adams 939 V. Aloott 1045 V. Early 1033 V. Ely 40, 623 V. James 302 V. Kilborn 1058 B. Ormsby 875, 877 ElysviUe i\ Okisko 694 Emans v. TurnbuU 1342, 1348, 1349 TABLE OF CASES. Embury v. Conner 765, 795 Emerson v. Bleakley 477, 480 Emerson v. Blonden 1217 I/. Lakin 77 o. Lowell 439, 441 V. Providence Co 702 V. Slater 904, 1026 -V. Stevens 551 V. White 23 Emery v. Berry 289, 308, 310 u. Chase 1048 V. Estes 357 V. Fowlgr 180, 988 V. Grocock 1352, 1353 u. Hildreth 811 ■0. Hobsou 697, 698 V. Joice 986 V. Mohler 1014, 1020 V. Smith 883 V. Webster 940, 942 V. Whitwell 835 Emery's case 540 Emig V. Diehl 179 Eraly V. Lye 951 Emmerson v. Heelis 866, 868 B. Herriford 789 Emmons v. Littlefield 1045 ('. Overton 1061 Emory v. Ins. Co. 1026 V. Joice 986 Empire Co. v. Stuart 708 Empire State, The 359 Empire Trans. Co. v. Wamsutta Oil Co. 357, 359, 363 Enders v. Richards 1167 a. Sternberg 129 V. Williams 487 Endress v. Lloyd 1310 Engine Co. v. Sacramento 950 England v. Downs 633, 937 V. Slade 1353 English V. Cropper 429 V. Johnson 644 ... Murray 810,816, 820, 1278 V. Porter 466 V. Register 1358 V. Smith 97, 98 V. Sprague 800 a Engman v. Immel 417, 423 Engstrom v. Sherburne 808 Enuis V. Smith 300, 302, 305, 309, 817, 1097 Ennor v. Thompson 1053 Enos V. Tuttle 1173, 1174 Enright v. R. R. 436 Ensign, in re 977 Enterprise, The 1174 Entriken v. Brown 1331 Entwhistle v. Feighner 175, 263, 268, 475 Entwistle v. Davis 864 Enyon, in re 886 Ephraims v. Murdook 180 Episo. Church v. Laroy 868 Eppendorff v. R. R. 47 Epps V. State 281, 454, 496, 665 Erb V. Keokuk R. R. 1070 V. Scott 824 Erickson v. Smith 120, 176, 452, 640 Erie Co. v. Cecil 617, 1183 V. Miller 52, 519, 523 Erie P. R. v. Brown 1068 Erie R. R. u. Decker 42 V. Heath 377, 755 Erminia, The 801 Erriokson v. Bell 408 Errissman v. Errissman 491 Erskine v. Davis 1284, 1288 V. Loewenstein 1149 V. Plummer 867 Erwin v. Saunders 1058 Eschbaoh v. Applegate 54 Eschback v. Huott 47 EsooUa V. Franks 1144 Escott v. Mastin 98 Esham v. Lamar 1017 Eshleman's Appeal 466, 473 Eshleman v. Harnish 881 Eslave v. Mazange 466 Eslow V. Mitchell 90 Esmay v. Groton 912 Essex V. Essex 864 Essex Bk. v. Rix 393 Estabrook t). Smith 1042,1047,1049 Estelle V. Peacock . 769 Esterbrook Man. Co. o. Ahem 324 Esty V. Baker 945 Etheridge v. Palin 920 Etting V. Scott 1184 I/. Sturtevant 446 Eubank v. Edine 509 Eureka Ins. Co. v. Robinson 175 Eustace v. Goskins 1364 Evans v. Angell 1005 ■u. Ashley 873 V. Beattie 1212 V. Birch 1362 V. Boiling 90, 133, 521 V. Botterel 1266 V. Browne 290 V. Dallow 896 V. Dickey 510 V. Evans 366, 414, 1107, 1140, 1220 ■u. Getting 664 V. Greene 503, 864 V. Hetlick 175, 402 V. Hurt 185 V. Iglehart 820 V. Lipscomb 404. 701 TABLE OF CASES. Evans v. Lipscourt 412 V. Morgan 77, 84 V. People 510 V. Pratt 940, 961 V. Reed 177, 495, 477, 824 ,.. Reese 187, 198, 200, 385, 631, 703, 794, 800 V. Roberts 866 V. Roe 901 V. State 397 V. Sweet 154 V. Taylor 190, 194, 827, 833 V. Wain 965, 968, 970 v. Williamson 986 Evanstown, u. Gunn 639 Evansville v. Page 945 Evausville E. R. v. Hiatt 361 V. Montgomery 558 V. Smith 335 Evarts v. Middlebury 444 y. Young 191, 248 Eveleth v. Wilson 920, 936 Evelyn v. Haynes 792 Everd v. Davis 1050 Everett v. Lowdham 491 Everhart's App. 863, 864 Everingham v. Roundell 90, 133 Everett v. Everett 138 Everitt v. Everitt 139 Everly v. Bradford 240 V. Cole 490 Evers v. Ins. Co. 431 Everson v. Carpenter 555 V. Fry 1026, 1044 Everts d. Agnes 910 Ewaldt V. Farlow 1042 Ewart V. Morrill 863 Ewbanks ti. Ashley 645 Ewell V. State 205, 220 Ewer V. Ambrose 549, 1105 V. Coffin 808 Ewing V. Clark 1058 V. Ewing 466 V. Gray 366 V. Heblitzells 290 u. Osbaldistou 539 V. Savary 223, 1277 Excelsior Aid Co. v. Riddle 606 Exchange Bk. u. Arelt 799 V. Monteath 744, 750 I'. Russell 1019, 1030 Ex parte Bamfourd 266 Briggs 745 Exton V. Russell 1059 Eyerman i\ Sheehan 511 Eyre v. Eyre 909 0. Ins. Co. 965 V. Smith 797 Eyster v. Hathaway 1052 Eystra v. Capelle 1046 702 F. Fabbri v. Ins. Co. 962, 971 Fabrigas v. Mostyn 174 Facey v. Otis 939 Fagnan v. Knox 451 Fail V. McArthur 266, 1194 V. Presley 645 Fain v. Edwards 571 V. Garthright 114 Fairbanks v. Fitchburg 448 V. Kerr 1296 Fairbrother v. Shaw 910 Fairchild v. Basoomb 403, 451, 452, 507, 567 a u. Lynch 787 v. Rassdall 1031 Fairfax v. Fairfax 724 Fairfield v. Hancock 1058 u. Thorp 1170 Fairlee v. Hastings 1173, 1174, 1177, 1180, 1183 Fairley v. Smith 448 Fairlie v. Christie 627 V. Fenton 951, 1154 Fairly v. Fairly 549 Falconer v. Hanson 1106 Falls V. Darling 799 Falkner v. Hunt 864 V. Leith 1192 Falkoner v. Garrison 920 Fall r. Hezelregg ' 883 Fallon V. Dougherty 151 V. Kehoe 949, 1030 V. Murray 760 I.. Robins 1022 FaU River v. Riley 795 Fall River Co. r. Borden 864 Falmouth v. Roberts 622, 623, 726, 1124 0. Thomas 867 Fancher v. De Montegre 336 Fanoourt v. Thorne 1059 Faneuil Hall Bank u. Bank of Brighton 1316 Fankboner v. Faukboner 920 Fant V. Miller 697 I!. Sprigg 923 Favebrother v. Simmons 868 Fargo V. Milberne 1136 Faribault r. Ely 153 Farina v. Home 876 Fariuger ;•. Ramsay 903 Faris v. Dunn 1032, 1035 Farlane v. Randle 980 Farley v. Budd 982 V. Cleveland 879 V. McConnell 1278 «. Stokes 909 Farmer v. Butts 959 TABLE OF CASES. Farmer v. Gray c, Gregory V. Grose V. Lewis V. Rogers 875 1014 1031 1183 865 Farmers' Bank v. Boraef 518, 520, 521 V. Day 937, 972, 1062 < . Gilson 135 V. Kiug 1273 !;. Leonard 1364 u. Lonergan 152 c. McKee 1170 V. Strohecker 529 V. Whinfield 937 ■;. Young 436, 443, 453, 572 Farmers' Ins. Co. v. Bair 556, 622, 629, 1064-5 Farmers' Loan Co. v. R. R. 290 Farmers' & Meoli. Bank v. Sprague 958, 967 Farnam v. Brooks 931 V. R. R. 363 Farnham v. Clements 1031 Farnsworth v. Briggs 717 V. Hemmer 965 V. Rand 62, 64, 986 Farnum v. Blackstone 1260 v. Burnett 1044, 1045 II. Farnum 40, 1061 Farquharson v. Seton 788 Farr v. Payne 1284 V. Smith 1169 V. Swan 645, 1355 Farrah v. Keat 383 Farrand v. IVIarshall 1346 Farrar v. Bates 324 u. Beswick 1320 «. Clark 779, 799 V. Farrar 861 V. Fessenden 65, 115 V. Hayes 921 o. Hutchinson 1064, 1207, 1365 V. Merrill 1349, 1852 V. Smith 1044 V. Stackpole 961 Farrel v. Lloyd 1026, 1035 Farrell v. Bean 1019, 1031 ?;. Brennan 451, 1252 Farrington v. Donohue 883 Parson's Appeal 870 Farwell v. Lowther 870 V. Tillson 883 Fash V. Blake 709 Fassett v. Brown 726, 1314 Faucett v. Currier 929, 932, 1014 u. Nichols 38, 39 Faulder v. Silk 1254 Faulds V. Jackson 886, 888 Faulkner v. Bailey 1195 V. Brine 549 Faulkner v. Johnson 1315 V. Whitaker 175 Faulks V. Burns 861 Faunce v. Gray 182 Fauntleroy v. Hannibal 293 Fausset v. Faussett 433, 1175, 1220 V. .Tones 1008 Fawoett v. Bigley 1175, 1180 Faxon v. Hollis 682 Fay V. Ames 770, 1066 V. Gray 920 u. Guynou 427 V. Harlan 268, 567, 1101 V. Patch 786 V. Richmond 967, 1315 V. Smith 626 Fayette v. Chesterville 451 Fayette Co. o. Chitwood 120 Fazakerly v. Wiltshire 339 Peagan v. Cuneton 262 Fearing v. Clark 1055 Featherman r. Miller 394 Federal Hill Co. v. Mariner 64, 988 Feiblerman v. State 290 Feig V. Meyer 623, 1157 Feldman v. Gamble 357 Felker v. Emerson 1217, 1251 Felkin ;;. Baker 522 Fell !;. R. R. 180 V. Turner 782 ^. Young 703, 732 Feller v. Green 931 Fellow V. Davis 177 Fellowes v. Williamson 1102 Fellows v. Menaaha 123, 320, 324 V. Pebriok 120, 740 Felt V. Amidon 259 Felter v. MulUner 831 V. Smith 787 Feltham, in re 999 Felthouse v. Bindley 1138 Felton V. McDonald 61 V. Sawyer 995 V. Smith 910 Fendail t'. Billy 240 Fenderson v. Owen 937, 939, 977 Fenn v. Harrison 1061 Fennell v. Tait 384, 402 Fenner v. Lewis 1212 0. R. R. Co. 582, 593, 742 Fennerstein's Champagne 175 Fenno v. Fenno 84 V. Weston 1154 Fenton v. Emblers 883 u. Reedy 83 V. State 336 Fenwiok v. Bell 444, 452 t: Bruflf 1021 u. Fenwiok 833 V. Reed 582, 586 V. Thornton 766, 1210 703 TABLE OF CASES. Fenwiok, in re 892 Filmer V. Gott 931, 1019 1046, 1047 Ferbraohe v. Ferbraohe 460 Finch, in re 467 Ferdinand v. State 338 Finch 11. Alston 1331 Ferebee v. Ins. Co. 1064 V. Creech 468 Ferguson v. Clifford 120 c. Finch 138, 139, 882, 889, 910 V. Crawford 796, 797, 803 V. Gridley 719 I/. Davis 268, 370 Findley v. Armstrong 956 V. Etter 758 V. State 8 u. Glaze 920 Finerty v. Fritz 417 V. Haas 1019 Fink's App. 1315 V. Hubbell 436, 444, 509 Finley V. Hanbest 765 V. Kurnley 800 a V. Hunt 412 u. Mahon 801, 803 Finn v . Com. 177 a. Rutherford 572 I, . Wharf Co. 366 V. StaTer 1165 Finnerty v. Tipper 32 V. Sutphen 937 Finney v. Boyd 758 V. Thatcher 21 V. Finney 784 Fernandez, ex parte 338, 540 V. Forward 490 Fernandez v. Henderson 507 V. Ins. Co. 920 Fernley v. Worthington 147, 813 V. State 421 Ferrers v. Arden 758 Finney's Appeal 977, 1030 Ferris v. Goodburn 1007 Pinucane v. Small 363 Ferry v. Taylor 1090 Fire Insurance Co. 1032 Person v. Wilcox 1184 Firkins ". Edwards 155 Fessenmayer v. Adoook 1336, 1337 First Baptist Church v. Ins Co. 558 Fetherly v. Wagoner 734 First Nat. Bk. v. Balcom 1285 Feversham v. Emerson 765 V. Bennett 878 Few V. Guppy 756 V. Bucks 253 Fickett V. Swift 1194 V. Green 572 Fidelity Co.'s App. 429, 1144 V. Haight 445, 566 Fidler v. MoKinley 1077 V. Kidd 120 Fiedler v. Darrin 482 V. Leach 1363 Field 0. Boynton 238 V. MoManigl i 1323, u. Brown 466, 1334, 1349 1363 V. Davis 544 V. Nat. Marine Bk. 1059 0. Flanders 797 V. Ocean N. B. 1175, u. Gibbs 803 1180 V. Hoi brook 1017 V. Priest 152 V. Holland 1119 (/. Reed 480, 1136 V. Langsdorf 837 V. Wood 469 V. Lelean 929, 969 Fischer v. Popham 888 V. Mann 1022, 1026 Fish V. Cleland 1069,1170 I'. Moulson 1141 V Dodge 450 u. N. Y. Cent. R. R Co. 43 V HoUey 788 a. Pelot 952 V Hubbard 956 I'. Runk 875 V. Lightner 793 V. Smith 833 Fisher V. Bank 123 V. Stagg 632 V. Butcher 740 1/. Thompson 518, 520, 685 V. Clement 1262 V. Thornton 123 I. Com. 563 V. Tibbetts 1165 u. Conway 1217 Fields V. Stunston 1058 V. Deibert 507. 931. 945 Fife V. Commonwealth 980 V. Deibert's Adm'r 1028 Fifield V. Richardson 258, 259 u. Fisher 1125 V. Smith 492 V. Fobes 1036 Figg V. Wedderburne 206 u. Heming 586 Filer v. Peebles 1287 V. Hoffman 618 V. R. R. 268 V. Ins. Co. 1014 Filkins v. Baker 522 V. Kitohingham 824, 831 V. Whyland 946 1'. Kuhn 909 Filliter v. Phippard 1294 V. Kyle 180 704 TABLE OF CASES. Fisher v. Longneoker 795 V. Mayer 238 V. Meister 1052 V. Minns 1352 V. Ogle 851 V. Ronalds 535, 538 V. Samuda 140 V. True 1163, 1163 a V. Tucker 1196 Fishmongers' Co. n. Robertson 1085 Fisk, ex parte 9 risk V. Chester 482, 508, 955 V. Kissane 141 V. Norvel 810 Fiske V. Kissane 151 Fitch o. Bogue 151 V. Carpenter 196 V. Chapman 176, 1163 a, 1183 V. Hill 432 u. Jones 356 V. Pinckard 661 V. R. R. 360 V. Smallbrook 397, 831 V. Woodruff 1014 Fitchburg v. Lunenburg 120, 936 Fitchburg Railroad Co. v. Freeman 448 Fitler v. Beckley 1044 V. Eyre 521 V. Fatten 1303 V. Shotwell 643 Fitshngh v. McPhersou 795 Fitts V. Brown 936 V. R. R. 444 Fitz V. Comey 942 V. Rabbits 147 Fitzgerald v. Adams 60, 61 V. Clark 936 V. Dressier 879 V. Elsee 730 V. Fitzgerald 177 u. Goff 569 V. McCartney 682 a. Morrissey 899 V. O'Flaherty 1084 V. Peck 1241 a o. Pendergast 21 V. Smith 931 V. Stewart 63 Fitzgibbon v. Brown 53 V. Kinney 518, 521, 678 Fitzherbert o. Mather 1170, 1173 Fitzhugh V. Croghan 726, 727 V. Runyon 1028 Fitz James v. Moys 602 Fitzmaurioe v. Bayley 901 Fitzpatrick v. Dunphey 1336 c. Fitzpatrick 826, 1008 V. Harris 1103 V. Pope 115 V. Woodruff ■ 874 Fitzsimmons v. Ins. Co. 814 VOL. II. — 45 Fitzsimmons u. Marks 818 Fitzwalter Peerage 219, 704, 719 Flagg V. Mason 191, 262, 1031, 1156 V. Searle 528 Flanagin v. Champion 1200 V. Leibert 249 V. State 399, 421 u. Thompson 823 Flanders v. Fay 906, 1017, 1019, 1022 V. Maynard 259, 1165 V. Thompson 122 Flanigan v. Turner , 837 Flanigeu v, Ins. Co. 287 Flannagan v. Althouse 175 Flannigan v. Althouse 760 Flash V. Ferri 551 Flatt !;. Osborne 962 Flattery v. Flattery 433 Fleeger v. Pool 66 Fleet V. Murton 44, 951, 965, 969 Fleischman v. Stern 1143 Fleming v. Albeok 450 V. Clark 63 V. Fleming 997 V. Gilbert 904, 906 X,. McHale 1019, 1031 o. State 401, 402 c. The Insurance Co. 988 Fletcher v. Braddyl 1325 V. Fletcher 487 V. Froggatt 1108 V. Fuller 1352 o. Holmes 783 V. Mausure 949 V. R. R. 551 Fletcher's Succession 935 Flicker's Succes. 1118 Flickner v. Wagner 510 Flinn v. Calow 1014 V. McGonigle 142 Flint V. Bodge 788 V. Clinton 694 V. Conrad 1051 V. Day 1058 V. Flint 619, 1292 V. Sheldon 1031 V. Trans. Co. 259, 1173 V. Wood 1017 Flitcroft V. Fletcher 490 Flitters v. AUfrey 758 Flood V. Mitchell 516, 517 Florence v. Jennings 788 Florentine v. Barton 1302 Florida v. Sohulte 822 Floto V. MulhoU 314, 1292 Flourney v. Newton 63 Flower v. Herbert 1151 u. Young 1200 Flowers v. Haralson 205 V. Helm 1196 Floyd V. Bovard 529 705 TABLE OP CASES, Floyd r. Hamilton 1184 V. Johnson 333 0. Miller 427, 466, 473 6, 478 V. Ricks 332 1. State 538, 540 V. Wallace 528, 551 Plynn v. Coflfee 1274 V. Ins. Co. 63, 175 V. McKeon 1017 V. R. R. 360 Flynt V. Bodenheimer 451 V. Conrad 1051 Fogassa's case 321 Fogg «. Griffin 1170 V. Moulton 1314 u. Pew 1175 Fogleman v. State 559 Foley !'. Greene 931 V. Mason 492 V. Wyeth 1346 Folger V. Donsman 1044 0. Ins. Co. 803, 808 Folk V. Wilson 1194 Folkes V. Chadd 444, 445 FoUain ». Lefevre 324 FoUansbee v. Walker 420, 601, 780, 785, 988 FoUett V. JefiFeryes 588, 690 «. Murray 137 Folly V. Smith 420 Folsom V. Apple River Co. 519 V. Batchelder 1190 , Brugler 552 Frieze v. Glenn 910 Frink v. Coe 268 V. Green 1015, 1044, 1048 u. Potter 1296 Frisby v. Waters 799 Frith, in re 889 Frith V. Barker 959 V. Sprague 300 Fritz !'. Brandon 1338 Frosh V. Holmes 1302 Press's App. 466 Frost V. Blanchard 921 V. Brigham 1021 V. Brown 1226 V. Frost 786 V. Holland 98 V. Holloway 567 V. MoCargar 569 V. Shaplelgh 64, 988 V. Tarr- 883 Prostburg v. Mining Co. 876 Froude v. Freude 610 Fry V. Bank 862 V. Chapman 62 ... Piatt 870 u. Wood 178, 179 Frye v. Bank 562 V. Shepler 909 Fryer v. Gatheroole 511 V. Patrick 937 Fugate V. Pierce 414, 433, 464, 478 Fuhrmann v. Huntsville 293 Fulkerson v. Holmes 209, 218 V. Thornton 469 Fuller V. Carr 942 V. Dean 53 V. Feuwiok 800 V. Fotch 816 .;. Fuller 387, 395, 401, 432 c\ Hampton 1090 V. Hooper 75, 1061 V. Hutohings 1301 v. Lendmau 476 V. Princeton 664 V. Saxtou 210 V. Smith 1363 PuUerton v. Bank of U. S. 357 V. Rundlett 1027, 1059 Pulmer v. Seitz 626 Fulmerston v. Steward 859 Fulsome v. Concord 512 B'ulton V. Andrew 1243 TABLE OF CASES. Pulton V. Bank 529 Galbraith v. Zimmerman 477 V. Graoey 838, 872 1119 Galbreath v. Cole 1175 u. Hood 718, 7-19, 930, 1067 u. Eichelberger 538, 541 V. Maocracken 411 Galceron v. Noble 1059, 1170 Pulton Bank v. Staflford 529 Gale V. Currier 61 Fulweiler v. Baugher 1274 V. Norris 240, 654, 684 V. Lutz 1285 u. People 483 Puncheon v. Harvey 35' , 366 V. Williamson 1046, 1048 Funk V. Dillon 430 Galen v. Brown 939 V. Eggliston 474, 474 a Galena Ins. Co. v. Kupfer 961 V. Ely 678 Galena R. R. v. Pay 361, 551 Funston v. State 512, 1082 Gallagher v. Black 939 Furber v. Hilliard 719 V. Mars 863 Furbush v. Goodwin 923, 1064 u. R. R. 666 Furley v. Hanbert 765 V. Williamson 1163, 164 Furly V. Newnham 384 Gallaher v. Vought 1321 Furnas v. Durgin 21 Galliher v. People 402 Furneaux v. Hutcbins 44 Galloway v. MoKeithen 982 Furnell v. Stackpoole 320 Gallup y. Lederer • 965 Furness v. Hone 965 Galpin v. Atwater 921 Furrow v. Chapiu 431 V. Paige 808, 980, 1304 Fursdon v. Clogg 232 V. R. R. 360 Furst V. R. R. 174 Gait V. Galloway 640 Fusting V. Sullivan 1026, 1044 Galveston v. Barbour Galway's Appeal Gamble v. Hepburn 259 1044 466, 469 G. V. Johnson Gambrill v. Parker 265, 1156 377 Gablett v. Sparks 466 Gammage v. Moore 1019, 1021 Gackenbacli v. Brouse 1214 Gammon v. Cottrell 787 Gadsby v. Dyer 549 Ganahl v. Shore 678 Gaff V. Harding 1066 Gandee v. Stansfleld 594 Gaffuey v. The People 66 , 555 Gandolfo v. Appleton 559, 1194 Gage V. Busse 795 V. State 49 V. Ewing 782 Ganer v. Lanesborough 306 V. Hill 795 Gangwer v. Fry 909, 910 V. Jaqueth 937, 1014 Gangwere's Estate 408, 566, 1254 «. Lewis 931 Gauley v. Loouey 942 V. Schroder 135 Gans V. R. R. 262 V. Wilson 61 Gauson v. Madigan 961, 998 Gagg V. Vetter 1294 Garber v. State 1248 Gahagan v. People 84 Garden v. Creswell 379, 382 V. R. R. 40 , 361, 451 , 512 V. Garden 1276 Gaine v. Ann 740 Gardiner v. Casenove 1031 Gaines v. Com. 443 , 551, 559 , 561 V. Gardiner 451 V. Fender 119 u. People 441 V. Gaines 1129, 1133 V. Suydam 1066 V. Kimball 136 Gardiner, in re 886 V. New Orleans 201, 203, 208, Gardner v. Bartholomew 567, 569 210 «. Buckbee 758, 765, 769 V. Page 61 V. Collector 290, 637, 980 a V. Relf 86, 175 , 657 V. Dangerfleld 755 Gains v. Hasty 175 V. Gardner 634, 865 Gaither v. Brooks 823 u. Grannis 199, 733-4 V. Gaither 1008 V. Grout 875 V, Martin 147, 175, 1156 V. Humphrey 983, 986 Galbraith v. Cook 1048 V. Kellogg 268, 398 V. Galbraith 945 V. Lewis 305 u. Green 1077 V. MoLalleu 467 V. MoLain 863 V. Moult 1190 V. Neville 801 V. O'Connell 709 852 TABLE OF CASES. Gardner v. People 265, 346 1265 Gass V. Stinson m, o. Raiabeuk 769 Gateley v. Irwine 977 V. Sisk 981 Gates I'. Brower 950 V. Walsh 626 V, Hughes 8 V. Way 684 V. Johnson Co. 297, 317, 338 Grardt K. Brown 1103 V. Keiff 668 Garfield v. Donglass 826 V. McKee 869 V. Paris 875 V. Mowry 1165 Garland v. Cope 237 1157 1/. Preston 768, 790 y. Harrison 1165 u. State 115 V. Jaoomb 1301, 1320 V. The People 570 u. Lane 368 Gatewood v. Bolton 567 f. Scoones 831 Gatheroole v. Miall 147, 148 e. Tucker 802 Gatlin v. Walton 781 Garlook v. Geortner 1362 Gatling v. Newell 175 Ganiar v. Bird 1029 Gaugh V. Henderson 1044 Garner v. Garner 999, 1241 a Gaul i>. Fleming 358 V. Myrick 1090 Gaulb V. Brown 901 Garnet v. Bell 1191 V. R. R. 440 Garnet, ex parte 31£ ,320 V. Storniont 856 Garnharts v. 0. S. 1302 Gauldin v. Schee 1258 Gamier v. Rennier 1362 Gaunce «. Backhouse 1201 Garnons v. Barnard 186 Gauntlett v. Carter 939 Garrahy v. Green 1165 Gavan v. Ellsworth 177 Garrard v. Haddan 62£ , 632 Gavin v. Buckles 469 Garrels v. Alexander 707, 709 , 712 V. Graydon 769 Garrett v. Ferguson 952 Gavinzel o. Crump 920 11. Garrett 1085 Gavisk v. R. R. 513 V. Handley 950 Gavit V. SnowhiU 103 V. Jackson 1352 Gaw V. Hughes 1039 ■c. Lyle 758 Gawtry v. Doane 123, 251 u. E. R. 980 a, 1068, 1309 Gay V. Bates 1090 V. State 507 , 551 u. Ins. Co. 454 Garrettson v. Bitzer 331 a V. Lloyd 99, 1092 Garrick v. Williams 980 V. Purport 790 Garrigues v. Harris 116 , 118 V. Smith 795 Garrison v. Akin 1077 V. Southworth 357 B. Blanton 451 0. Welles 988 Garrison's Succession 817 Gayetty v. Bethune 1350 Garry v. Post 1277 Gayle v. Bishop 1574 Garside v. Proprietors 364 Gaylor's Appeal 435 Garteside v. Outram 690 Gaze V. Gaze 888 Gartside v. Ins. Co. 606 Geacli 11. Ingall 356, 357 Garth v. Howard 268, 1173, 1174, 1175, Geary v. Kansas 693, 694 1180 c. People 561 Gartner v. Boiler 1139 f. Simmons 758 Garton v. Bank 1062 Geaves v. Price 892 Garvey u. Wayaou 639 Gebb ir. Rose 1029 Garvin v. Carroll 108 Gebhart v. Burkett 47, 1136, 1217 V. State 290 , 346 V. Sliindle 401, 418, 429 o. Wells 293 Gedde's App. 1014 V. Williams 470 Geddy v. Stainback 930 Garwood v. Dennis 122 Gee V. Scott 430 I'. Garwood 784 V. Ward 193 , 194, 213, 216 c. Hastings 115 !>. Wood 213 Gashwiler ;;. Willis 702 Geekie v. Kirby 764 Gaskell v. Morris 821 , 828 Geer r. Winds 1008 Gaskill V. King 429 Gfhrke v. State 451, 665 V. Skene 1136, 1154 Geiser Co. u. Farmer 822 Gaslight f. Knowles 808 Gflott c. Goodspeed 727 Gass's App. 940 Gelpcke «. Blake 1014, 1049 710 TABLE OF CASES. Gelston v. Hoyt 814, 12S4 Gelstrop v. Moore 986 Gemalt v. Adams 572 General Estates Co., in re 1152 Gen. St. Navig. Co. v. Guillou 801, 803, 804 V. Hedley 331 V. Morrison 331 Gent V. Ins. Co. 1316 a Gentry v. Doolin 639 ... Garth 115 George v. Harris 1068 V. Jesson 1277 V. Joy 521, 522, 939, 944, 961 V. Pitcher 569 V. R. R. 359 V. Silva 587 V. Surrey 696, 707 .,. Thomas 262 V. Thompson 155 Georgia R. R. v. Hamilton 94 V. Rhodes 94, 1243 Geralopulo v. Wieler 125 Gerber v. Friday 786 Gerdes v. Moody 1019 Gerding v. Walker 1336 Gerhauser v. Ins. Co. 178 Gerish v. Chartier 27, 28, 35 Gerke v. Steam Nav. Co. 1174 German Ass. v. Sendmeyer 632, 633 German Bank v. Kerlin 574 German Ins. Co. i-. Grunet 510, 1175 German School v. Dubuque 21 Germania Company v. R. R. 1014, 1244 Gerrish v. Pike 551 V. Sweetzer 1090 V. Towne 942 Gerry r. Hopkins 748 V. Stimson 1031, 1050 Gertz V. R. R. 567 Gery V.Redman 237,1156 Gest V. R. R. 28, 824 Getchell v. Hill 452 Geter v. Comm. 681 Getzlaff v. Seliger 581 Geyer v. Aguilar 816 V. Irwin 390 Ghormley !>. Young 259 Gibbes v. Vincent 1274, 1276 Gibblehouse v. Strong 1163, 1163 a Gibbon v. Featherstonhaugh 1362 Gibbons v. Potter 412 V. Wilcox 1200 Gibbs V. Bryant 771 V. Cook 727 V. Hunter 549 u. Linaburg 484, 557, 931 V. Lindsey 570 V. Neely 1205 f. Newton 389 V. Pike 1305 Giberton v. Ginochio 725 Gibney v. Marchay 1089, 1102, 1137, 1140, 1157 Gibson v. Bank 1066 o. Com. 423, 430 V. Culver 971 V. Doeg 1356 V. Foster 1302- o. Gibson 451, 1009 V. Holland 872, 1127 u. Hunter 30, 39 V. Jeyes 1248 V. Moore 992 V. Nicholson 794 i,. Partee 930 V. Potter 411 V. Troutman 417 V. Watts 1019 V. Williams 510 V. Winter 1207 Gicker's Adm'rs v. Martin 1214 Giddons v. Crenshaw 1144 Gidney v. Logan 1156, 1157 V. Moore 1077 Gifford V. Dyer 1008 Gigner v. Bayley 742 Gilbart v. Dale 363 Gilbert v. Bulkley 861, 930 V. Duncan 61 a, 1026 V. Gilbert 266 V. Knox 884 V. McGinnis 957 V. New Haven 640 .,. R. R. 1295 V. Ross 135 .;. Sage 555, 572 V. Sykes 883 Gilchrist v. Bale 263 0. Brooklyn 521 v. Cunningham 1019, 1031 u. Grocers' Co. 683 V. McKee 562 Gildersleeve v. Caraway 180, 514, 1109 u. Mahoney 1113 Glides V. Dyson 1121 V. Halbert 837 V. Siuey 824 V. Warren 900 V. Wright 468 Gilliam v. State 662 Gilkey u. Peeler 422 Gill V. Campbell 490 ... Clagett 1021 CI. Herrick 878 V. Strozier 1165 Gilland v. Sellers 324 Gillanders v. Ld. Rossmore 863 Gillard v. Bates 589 Gillespie v. Brooks 69S V. City 359 u. Cumming 831 711 TABLE OF CASES. Gillespie v. Mather S37 V. Moon 1019, 1021, 1022, 1024 .. N. Y. 361 V. Sawyer 921 V. Walker 1214 Gillett V. Booth 828 I: Borden 1019 1,. Gane 999 V. Stanley 1262 Gillhooly v. State 699 Gilliam «. Chancellor 992 V. Perkinson 696, 727 Gilliat V. Gilliat 1005 Gilligan v. Boardman 869 Gilliland v. Sellers 324 Gillingham v. Tebbetts 1165, 1196 Gilman v. Gilman 803 V. Hill 874, 875 „. Moore 1058 V. Rapids 782 o. Eiopelle 114, 115, 508 a. Rives 782 V. Strong 770 V. Strafford 452 V. Veazie 1068 Gilmer v. Higley 527 Gilmore v. Gilmore 1144 u. Holt 641 V. Wilbur 357, 866 V. Wilson 518 Gilney v. Marchay 1159 Gilpatrick v. Foster 619, 1126 Gilpin V. Fowler 1262 Gilson V. Gilson 1217 V, Machine Co. 1060 Gilaton v. Hoyt 323 Giltinan v. Strong 770 Giltner v. Gorham 412 Gimball v. Hufford 60 Girardin v. Dean 758 Giraud v. Richmond 883, 901 Gisborne v. Hart 824 Gist V. Gans 466, 623 V. McTenkin 785 V. McJunkin 163 Gitt V. Watson 1273 Given v. Albert 510 Givens v. Bradley 47 V. Com. 398 Gizler v. Witzell 358 Gladstone v. King 1170 Glanton v. Griggs 1163 a Glascock V. Nave 63 V. R. R. 28 Glasgow V. Ridgely 722 Glass V. Gilbert 1335, 1349 u. Hulbert 856, 905, 910, 1019, 1021, 1024 Glass Co. V. Morey 965 Glassell v. Mason 141, 151 712 Glave V. Wentworth 1107 Glaze V. Whitley 569 Glazier v. Streamer 1095 Gleadow v. Atkin 226 V. Knapp 49 Gleason v. Florida 63 Glendale Co. v. Ins. Co. 920, 938 Glengall v. Barnard 974 Glenister v. Harding 201, 658 Glenn i/. Bank 416 c. Clove 397, 567 V. Garrison 830, 834 V. Gleason 531 V. Glenn 83, 527, 653, 945 V. Grover 977 V. Harrison 828 a. Rogers 1015 V. Salter 1028, 1140 V. Station 1243 Glidden v. Child 879 V. Harrison 1058 Gliddon v. Goos 63 ■u. McKinstry 359 Glisson V. Hill 1031 Globe Ins. Co. v. Boyle 1170, 1172 Glossop V. Jacob 335 Glover v. Hunnewell 523 V. Bobbins 626 Glubb V. Edwards 726 Glyn V. Caulfleld 593, 756 Glynn v. Bank 1135 V. Houston 751 V. Thorpe 980, 982 Goar V. Moranda 799 Goblet V. Beechey 972, 1003 Godard o. Gray 801, 803, 814 Godbee v. Sapp 1199 Godbold V. Bank 109 V. Blair 678 Goddard's case 978 Goddard v. Gardner 588 V. Gloninger 248, 1338 V. Hill 1058 V. Long 775 V. Parker 133 V. Parr 547 V. Pratt 175, 253 V. Putnam 1127 V. Rawson 931a V. Sawyer 977 <). State 587 Godden ?;. Pierson 516 Godding v. Oroutt 682 Godfrey v. Codman 682 V. Macaulay 675 V. State 1271 Godofrey v. Jay 824 Godts V. Rose 969 Godwin V. Francis 617, 872 Goeing v. Outhouse 412 Goetz V. Bank 253, 674, 1060 b TABLE OF CASES. Goff V. Mills 381 ,495 Goodman v. Stroheim 482 V, Pope 1021 Goodnow V. Bond 878 v. Roberts 957 V. Parsons 1077 Goggans v. Monroe 1245 V. Smith 823 Gosgerley v. Ciithbert 1059, 1060 6 V. Stryber 779 Goignard v. Smith 147 Goodrich ». City 785, 840 Gold V. Canham 801 V. Jenkins 795 V. Phillips 879 V. McGlary 937 Golden v. Knowles 840 V. Stevens 95 V. State 1269 !;. Tracy 1217 Golder v. Bressler 229 V. Warren 53 Goldicntt v. Townsend 882 V. Weston 73, 90, 93 Goldie V. McDonald 1284, 1285 V. Wilson 29 Gold Ins. Co. V. Cobb 324 V. Yale 788 V. Sledge 469 Goodright v. Hicks 47 Goldshede v. Swan 937, 1044 V. Moss 608 Goldsmidt v. Marryat 743 Goodspeed n. Fuller 1042 Goldsmith v. Hane 708 Goodtitle v. Baldwin 1348 V. Kilbourn 120, 826 u. Dew 187 V. Picard 55 V. Southern 945 V. Sawyer 998 Goodtitle d. Baker v. Milburn 1312 V. White 946 Goodwin v. Ann. Co. 661 Goldstein v. Black 721 V. Appleton 339 Goldthorpe v. Harpmau 1305 V. Carr 1331 GoUer v. Fett 863 V. Goodwin 1066 Golson V. Elbert 1175 V. Harrison 269 Goltra V. Sanasaok 1021, 1029, 1240 Gomez v, Lazarus 1059 Gonzales v. Chartier 883 V. MoHugh 338, 446 V. Ross 283, 664 Gooch V. Bryant 1175, 1200 Good, ex parte 1064 Good V. Martin 1066 Goodallii. Ins. Co. 414 V. Little 589, 593 Goodell, ex parte 747 Goodell V. Bates 1144 V. Buck 357 V. Hibbard 1273 V. Labadie 1019 V. Little 582 Goodenow v. Litchfield 779 Goodered v. Armour 159 Gooderich v, Allen 464 Goodhue v. Bartlett 709 V. Berrien 739 a u. Clark 23 Goodier v. Lake 142 Goodin v. Armstrong 1133 Gooding v. Morgan 287 Goodinge v. Goodinge 993 Goodlett V. Kelly 177 Goodliff V. Fuller 743 Goodman v. Chase 880 V. Goodman 84 V. Griffin 315 V. Griffiths 870, 872 V. Henderson 956 V. Holroyd 490, 590 V. Simonds 632, 1058, 1301 V. Jack 194, 198, 703 V. State 427, 451 Goodwyn v. Goodwyn 98, 1567a Goodyear v. Vosburgh 712, 713, 718 Goom V. Affalo 75 Goosey v. Goosey 1249 ■ Gordner v. Heffley 1158 Gordon v. Bowen 492 V. Bowers 176 V. Bucknell 638 u. Clapp llOl V. Com. 601 o. Gordon 924, 1042, 1046, 1049 V. Hobart 287 V. kennedy 789 V. Ld. Reay 890 V. McEakin 471 V. Miller 726 V. Parmeloe 838, 1246 ... Price 708 -u» R. R» tjy V. Reynolds 423, 555 V. Ritenous 1161, 1165 V. Saunders 868 V. Searing 130 «. Shurtliff 175 V. Tweedy 282, 669 V. Ward 315 Gordon's case 384 Gore V. Bowser 590 V. Elwell 135 a. Gibson 1077 V. Hawsey 1154 Gorman v. Montgomery 683, 685 V. State 84 713 TABLE OF CASES. Gorman's case Goirisou V. Perrin Gorton v. Hadsell Gosewick v. Zebley Gosling V. Biruie Goss V. Austin 794, 980 972 715 684 1149, 1150 468, 472 ^. Nugent 901, 902, 901!, 920, 1014, 1017 V. Quinton 180, 1109 «. Worthington 1262 Gosse V. Traoey 178, 723, 726 Gossett V. Howard 324, 1302, 1308, 1309, 1318 Gossler v. Eagle Sugar Refinery, 715, 961 Gothard v. Flynn 863 Gott V. Adams Express Co. 715 V. Dinsmore 1175 Gottlieb V. Hartmau 412, 452 Goacher v. Martin 909, 1017 Goudy V. Hall 982 Gouge V. Roberts 1291 Gough V. Crane 357, 909 V. St. John 47 Gould V. Barnes 949 V. Conway 521 ./. Coombs 626 V. Crawford 418 V. Jones 708 V. Kelley 726 V. Lee 132, 1019 V. McCarthy 742 V. Norfolk Lead Co. 549, 556, 955 V. R. R. 759, 782, 786, 840 V. Stanton 775 V. Trowbridge 151 V. White 1360 Gouldie I'. Gunstou 1151 Goulding v. Clark 1308 Goupy V. Harden 1059 Governor v. Baker 1175 V. Bancroft 826 V. Roberts 394 Goward v. Waters 1046 Gower i'. Sterner 1021 Grace v. Adams 1070, 1243 V. Ins. Co. 958, 962, 967, 1171 V. McKissaok 1142 Graoeland Co. v. People 792 Gracie v. Morris 129 Gradwohl v. Harris 1133 Grady's case 1310, 1314 Graff V. Brown 253 V. R. R. 142, 1068, 1069 Grafton i-. Fletcher 909 Grafton Bank v. Doe 1360 1/. Moore 1200 u. Weeks 369 Gragg !i. Richardson 823 Graham, in re 633 892 714 Graham v. Anderson 324, 337, 1053 V. Bennett 83 V. Busby 1155, 1156 V. Campbell 1'29 •.'. Chrystal 5K3 •>■ Cox 1363 V. Davis 363 V. Glover 384 V. Hamilton 61, 939, 942 . Oldis 154 V. Pancoast 1017 V. People 576, 590 ^. Spencer 796, 808 V. Whitely 66, 1308 V. Williams 115, 288 Grames v. Hawley 796, 809 Grand Rapids Ins. Co. v. Martin 606 Grand Rapids R. R. v. Huntly 268 Grand Trunk R. R. u. Richardson 43, 360 Grandy v. Ferebee 1183 v. MoPherson 262 Granger v. Bassett 468, 480 V. Clark 795, 797 V. Swart 1342 V. Warrington 601 Grannis ». Branden 538 V. Irvin 689 Grant v Bagge 336 V. Coal Co. 120, 309, 662, 786 V. Cole 240 V. Craigmiles * 909 c^. Fletcher 75 V. Grant 467, 949, 998, 1220 V. Harris 833 V. Jackson 1099, 1200 V. Latlirop 940 V. Lewis 1166 V. Maddox 940, 961 o V. McLachlin 814 V. Moser 339 t-. Naylor 901 V. Paxton 961 V. Thompson 451 V. Vaughan 1125 Grant's Succession 420 Grattan v. Ins. Co. 606 Gratz !). Beates 616, 1156 V. Gratz 909 V. Read 1241 a Graves v. Adams 1070 V. Clark 1058 V. Colwell 1293 V. Dudley 1066 V. Griffin 466 V. Johnson 1066 V. Joioe 758 V. Keatou 287 TABLE OF CASES. Graves v. Key 1064, 1143, 1365 V. Legg 1243 V. Moore 1363 V. Moses 439 V. State 549 II. Weld 866 Gray v. Bond 1 350 u. Boswell 1022 f. Cole 429 V. Cooper 468 c/. Cruise 1302 V. Davis 106, 114 V. Earl llti5 I'. Gardner 357 u. Gray 427, 820, 1331, 1360 V. Haig 487, 1265 V. Harper 937, 962, 971 V. Hodge 782 ii. Kernahan 160 V. MoLanghlin 268 V. MoNeal 795 V. Mobile Co. 364 c Murray 574 V. Nations 1204 V. Palmers 1200 V. Pearson 924 u. Pentland 604 „. Pintry 779 V. Roden 1019 V. St. John 505, 565 V. State 1118 V. Swan 814 V. Whitney 474 Grayson v. Atkinson 889 ... Waddle 135 Greanyw. R. R. 415 Greasons v. Davis 116, 305 Great Falls Co. v. Worster 191, 797 Greathead v. Bromley 759 Greathoase r. Duulap 931 Great Pond Co. u. Buzzell 120 Great West. Co. v. Loomis 528 Great West. Ins. Co. v. Rees 731, 1044 Great West. R. R. u. Bacon 367 o. Haworth 572 V. Willis 267, 1170, 1174, 1180 Greaves v. Greenwood 1279 u. Hunter 708 V. Legg 1243, 1250 Greely v. Quimby 60 V. Smith 781 u. Stilson 1290 Green's ease 401 Green v. Armstrong 866, 867 V. Bedell 268, 783, 838, 1102 ./. Brown 1283 V. Caulk 175, 521 V. Cawthorn 394 V. Chelsea 733 ^. Clark 1039 Green v. Clawson V. Cochran ?'. Cresswell V. Davis v. Disbi'ow V. Dnrfee V. Estes V. Gilbert ,>. Gill V. Gould V. Harris It. Holway o. Howard V. Ins. Co. V. Man. Co. V. Meriam V. New River Co. V. North Buffalo V. R. R. V. Rice V. Rugely u. Saddington V. Shipworth 0. State t . Taylor ... U. S. V. Walker V. Weller V. Woodbury Greenabaum v Elliott Greenawalt ii. Kohne V. MoEnelly Greene v. Day V. Godfrey u. Harris !'. Smith 795 417, 570 880 1089 879 120 879 21 69 500 1136 697 993 1170 1064 875 823 1209 311, 867 296, 559 314 909 616 147 422 464, 782 31 290, 637 1176 789 927 84, 86, 424 937, 939 1052 883 1144 Greenfield v. Camden 195, 208, 1039, 1285 V. Cushman 183 V. People 289, 512 Greenfield Bank v. Crafts 1137, 1323 V. Stowell 1150 Greenfield's Estate 931 Greenleaf v. R. R. 219, 1296 Greenlee v. Greenlee 909 V. Lowing 988 V. McDowell 1365 Greenough v. Ecoles 549 o. Gaskell 576, 577, 579, 588 V. Gaskill 590 <■. Greenough 726, 952 V. McClelland 1061 V. Sheldeu 153 Greenshield v. Pritchard 390 Greenshields v. Crawford 701 V. Henderson 1273 Greenville v. Henry 415 Greenway, ex parte 149 Greenwell v. Crow 436 Greenwood v. Lowe 366, 1248, 1249 715 TABLE OF CASES. Greenwood v. Spiller 120, 216 Griffiths V. Payne 291 Greer v. Higgins 1180 V. Williams 1188 V. State 482 Griffitts V. Ivory 710 Gregg V. Forsyth 127, 638 Grigg's case 426 V. Jamison 558 Grigsby v. Simpson 466 Gregory a. Baugh 338 V. Water Co. 454 V. Edgerly 357 Grim v. Bonnell 1173, 1183 V. Hobbs 789 Grimes v. Bastrop 1348 V. liOgan 869 V. Fall 152 ... Mighell 909, 1148 V. Grimes 63 V. Mitchell ■ 1217 V. Kimball 131, 1265 V. Taverner 526 V. Martin 491 u. Walker 510, 1165 Grimm v. Hamel 180, 600 Gregson v. Riich 75 Grimman v. Legge 859, 660 Gremaire v. Valon 1317 Grimmell v. Warner 357, 358 Grensell v. Hubbard 1059 Grims's App 1144 Gresham v. Taylor 74 Grims v. Tidmore 353 Greves, in re . 890 Grimshaw v. Paul 1175 Greville v. Chapman 435, 509 Grimstead v. Foute 1302 V. Taylor 630 Grindle v. Stene 1273 V. Tylee 897 Grinnel v. Wells 51 Grey v. Grey 1035, 1362 Grinnell v. Tel. Co. 942, 1180 V. Mobile Co. 510 Griscom v. Evans 999 Gribble v. Press Co. 1273 Grisham v. State 83 Grider v. Glopton 931 Grissell w. Bristowe 1243 Gridley v. Conner 1110 Griswold, ex parte 894 Griefswald, The 814 Griswold v. Gallop 293 Grierson ;). Mason 1015, 1022 V. Haven 1142 Griffin v. Bixby 1343 u. Messenger 1048 V. Brown 823 u. Newcomb 541 I/. Carter 315 V. Pitoairns 110, 319 V. Cleghoru 259 Groesbeok v. Seeley 640 , 643, 1042, V. Clover 450 1049 V. Cowan 1044 Grofl V. Ramsey 115 V. Donelly 600 V. Rohrer 942 V. Isbell 515 Groff 's Est. 683 ■/. Keith 879 Groll V. Tower 606 I/. Lawrence 1144 Grouing v. Ins. Co. 814 V. N. J. Co. 935 Grooms v. Rust 1165 V. Ranney 697 Groschke v. Bordenheimer 549 V, Richardson 760 Groshon v. Thomas 393 V. R. R. 779, 1174, 1175 Grosvenor o. Harrison 411 V, Seymour 782 V. Tarbox 825 o. Sheffield 155, 693, 694 Grove v. Fresh 661 V. Smith 429 V. Hodges 1026 u. State 563 V. Ware 162 V. Wall 549 Grover v. Buck 863 V. Witlow 510 V. Grover 101 Griffing v. Gibb 287 Groves v. Cook 833 Griffith V. Abbott 909 V. Groves 1037, 1300 V. Clarke 768 Grubb V. Grubb 1040, 1156 V. Eshelman 559 Grubbs v. Nye 1090 V. Frazier 810 Grumley v. Webb 1064, 1066 V. Griffith 769, 889 Grymes v. Sanders 1017, 1019 V. Huston 738 Guardhouse v. Blackburn 927, 995, V. Reed 1059, 1060 a 1243 V, Tunchouser 117 Guardian, etc., Life Ins. Co. V. V. Turner 1212 Hogan 1247 V. Young 909 Guardians, etc., v. Nathans 84, 4i4 Griffiths V. Griffiths 889 V. Tompkinson 1)08 f. Jenkins 863 Gudgen v. Bassett 625 716 TABLE OF CASES. Gudgen v. Besset 927 Haokett V. Callender 1079, 1085, 1138 G-ue V. Kline 1064 V. Reynolds 863 Guernsey v. Ins. Co. 1019 V. R. R. 512 V. Rexford 1140 Hackman v. Flory 1216 Guery v. Kinsler 466 Hackney v. Ins. Co. 1068 Guest V. Warren 787 Hadden v. Collector 980 a Guice V. Thornton 1066 Haddock v. R. R. 216 Guidry v. Jeanneaud 763 V. Woods 1058 Guild V. Richardson 986 Hade v. Brotherton 99 Guille V. Swan 1296 Hadfield v. Jamieson 170, 319 Guiterman v. Landis 1145 Hadjo V. Gooden 565, 569 V. S. S. Co. 436 Hadley v. Bean 141 Gulf City R. R. v. Stevens 437, 447 V. Carter 269 Guliok V. Gulick 587, 588 17. Greene 789 Gull !). Lindsay 880 V. MacDougall 756 GuUiher v. People 412 V. Pickett 767 Gully V. Bishop 141 Haerle v. Krechn 422, 423 a Gumm V. Tyrie 925 Hagaman v. Moore 447' Gumo V. Tanis 120 Hagedorn v. Reid 1330 Gump's Appeal 942, 1019 Hageman v. Salisberry 824, 982, 1148 Gundry v. Lyons 1205 Hagenbaugh v. Crabtree 1136 Gunn V. Clendinnen 939, 946 Hagenlooker v. R. R. 268 V. Plant 758 Hager v. Thomson 366 B. Wade 177 Hagey v. Hill 920 Gunter v. Halsey 912 Haggard v. Haggard 1077, 1220 V. Watson 501 Haggerty v. Fagan 945 Gunther ii..Lee 773 Hahn v. Kelly 795 Gurnea v. Seeley 781 u. Savings Co. 1194 Gurney v. Howe 640, 643 Haigh V. Kaye 931, 1038 u. Langlands 722 Haight V. Haight 259 Guterman v. S. S. Co. 452 Haile v. Palmer 115, 639, 643 Guthrie v. Lowry 808 V. Pierce 1060, 1061, 1062 Gutterson v. Morse 542 Hain v. Kalbach 1019 Gutzoni V. Tyler 1082 Haines v. Brownlee 147, 980 Gutzwiller v. Lackman 47 V. Guthrie 209 Guy V. Hall 595 a V. Haines 909 V. Manuel 1110 V. MoGlone 909 V. Mead 516, 518, 520, 522, 680 V. Pearoe 1363 V. Sharpe 940 V. Roberts 1344 V. Washburn 1319 V. Thompson 1031 V. West 1340 Hair v. La Brouse 1058 Guyette v. Bolton 1064 u. Little 366, 1046 Gwillim V. Gwillim 888 V. Melviu 826 Gwin V. Bradley 53 Haire v. Wilson 1262 Gwinn v, Radford 739 Haish V. Payson 46, 446, 452, 1290, Gwyn V. Neath 1039 1291 Gwynn v. Hamilton 1029 Haldane v. Harvey 1264 V. Setzer 61 Haldeman v. U. S. 781 Gwynne v. Davy 1018 Hale V. Gibbs 437 Gyger's Appeal 466 V. Handy 921, 1022 Gyles V. Hill 94 V. Hazleton 357 Gypford v. Woodgate 833 I,'. Henrie 863 u. McComas 799 V. Monroe 1157 H. V. N. J. Steam Navigation Company 308 Haack v. Fearing 517 V. Pack 1360 Haak v. Breidenbaoh 601, 785, 988 V. Patterson 1052 Habergham v. Vincent 890 V. Rich 190, 1102, 1157 Habersham v. Hopkins 366 V. Silloway 1108 Haokett v. Bonn ell 98 V. Stone 739 717 TABLE OF CASES. Hale V, Stuart 863 Hall's App. 786 V. Taylor 266, 502, 955 Hallahan v. R. R. 264, 512 V. Wilkinson 697 Halleok v. Cambridge 1308 Hales V. Bercham 910 V. State 1133 Haley i'. Kvans 1058 Hallen v. Runder 863 a V. Haley 413 Hallenbeok v. DeWitt 932 Hall, in re 223, 1274, 1277 Haller v. Crawford 1170 Hall V. Acklen 60, 114 V. Pine 758 V. Bainbridge 1314 V. Worman 1186 V. Ball 74, 145, 146 HaHett v. Collins 83 v. Ballou 509 V. Couseus 603 V. Bishop 1156 V. Eslava 135, 824 V. Brown 36, 41, 338 Halley r. Webster 662 V. Cazenove 977 Halliday v. Hart 1014 1058 ». Chaiiiller 625 V. Martinet 240 u. Clagett 1019 V. McDougal 261 V. Costello 303 Hallowell v. Hallowell 884 ,1. Davis 939, 953 V. Page 833 c. Eaton 1050 Halls V. Thompson 1017 V. Emily Banning 484 Halsey v. Blood 134 1066 (/. Farmer 869 V. R. R. 1176 V. Fisher 1005 V. yinsebangh 518, 522, 683 u. Gardner ^ 980 V. Whitney 633 u. Sittings 733 Halsted v. Brice 830 V. Glidden 682 V. Meeker 940, 942 V. Griffin 1149 Halyburton o. Kershaw 1264 V. Hall 863, 1042 Ham V. Ham 339 . Wray 466 Hannaford v. Hunn 815 Hannah v. Wadsworth 1047 Hannan u. Hannan 1044 Hannay v. Stewart 1173, 1180 V. Thompson 1031 Hannefln v. Blake 185 Hannibal R. R. u. Green 1042 Hannioutt v. Peyton 268 Hannum v. Belchertown 601 V. Tourtellott 980, 1118 Hanover Co. v. Iron Co. 640, 1171 Hanover R. R. v. Coyle 263, 1173 Hanrick v. Andrews 284 V. Cavanaugh 21 .,. Patrick 621, 726 Hansard v. Robinson 149 Hansley v. Hansley 1220 Hansom v. Armitage 875 Hanson v, Armstrong 141 V. Chiatovich 1285 o. Church 574 V. Eustace 153, 1267, 1347 V. Kelley 151 V. Lawdou 1290 v. Millett 1214 V. Parker 1210, 1213 V. Shackleton 332, 335 ./. South Soituate 120 V. Walcott 795 Hansur v. Ins. Co. 140 Haiitz V. Sealy 83, 84 Happell V. Brethauer 290 Happy V. Morton 509 V. Mosher 263, 1175 V. Wisconsin Bank 430 Harbers v. Tribby 120 Harbig v. Freund 764 Harbin v. Roberts 779 Harbison «. Hawkins 681 Harbold v. Kuster 1014, 1019, 1051 Harcourt v. Harrison 47 Hard v. Decorah 293, 294 Hardee ;;. Williams 417 Harden v. Hays 550, 739 V. Ware 1241 a Hardenburg v. Cockroft 511 Hardenburgh v. Lakin 175, 1041 Hardesty v. Jones 883 Hardigree v. Mitchum 1019 Hardin v. Crate 1313 V. Kirk 1053 c. Kretsinger 160 V. Taylor 475 a Harding v. Berrill 610 V. Brooks 47 V. Cragie 723 V. Hale 785 V. Mott 595 a V. State 782 u. Strong 339 Hardman v. Bradley 879 ,,. Chamberlin 690 .'. Bllames 753, 75.") 719 TABLE OF CASES. Hardwick v. Hardwick 945 Hardy v. Houston 643 V. Matthews 944 V. Merrill 451, 512 V. Moore 357, 1103 Hargh v. Brooks 1249 Hargraves v. Miller 412 Hargroves v. Cooke 869 Haring v. R. R. 361 Barker, in re 900 Barker v. Dement 63 Harkins's Succession 1019 Harlan v. Harlan 141 V. Howard 197 Harlow v. Boswell 920 V. Stinson 1349 V, Thomas 1050 Harman v. Gurner 997 V. Reeve 873 Harmar v. Davis 1151 Barmen v. Dart 466 Barnden v. Nav. Co. 363 Barnett v. Garvey 452 Harnish v. Herr 466 Harpending o. Wylie 758 Barper v. Bank 115 V. Burrow 177, 537 V. Cook 137 V. Dail 1066 * V. Hancock 151 V. Lamping 545 V. Long 120 V. Parks 475 a V. Rowe 824 V. R. R. 48, 541 V. Scott 142 V. West 619, 1126 Harper's Appeal 1032 Barren v. Culpepper 1156, 1165 u. Durrance 619,936 V. State 492 Harriman v. Brown 227, 1163 / V. Church 956 V. Stowe 263, 268 Harrington v. Baker 1290 V. Fry 701 V. Gable 725, 730 V. Ketellas 23 V. Lincoln 503, 569, 1090 V. Smith 436 V. Wadsworth 823 Harris, in re 896, 898 Harris v. Berrall 894 V. Brooks 1061 V. Caldwell 683 V. Com. 668 V. Cooper 85 V. Crenshaw 909 y. Dinkins 1028 V. Doe 611, 942 V. Elliott 1339 720 Harris v. Eubanks 61, 734 ' V. Goodwyn 1018, 1305 V. Hammond 808 r. Hardeman 795 u. Haynes 980 a V. Boward 28, 29 V. Ingledees 1252 V. Knickerbocker 909, 912 V. Lester 764 V. Magara 190 V. O'Loghlin 339 V. Packwood 363 u. People 290 V. Pepperell 1022 V. Pierce 1060 V. Porter 883 V. R. R. 665 V. Rathbun 961 V. Rosenberg 569 V. Ryding 1344 V. State 651, 569 V. Story 1243 V. Thompson 1262 V. Tippett 559, 561 V. Tunbridge 962 V. Whitcomb 152 V. White 315, 1292 V. Willis 795 V. Wilson 1200 Harris's case 1324 Harrisburg Bank v. Tyler 1170 Harrison v. Barton 949 V. Blades 179, 239, 728 V. Brock 417 V. Castner 1048, 1049 V. Charlton 180 !>. Clark 770 o. Creswick 800 V. Elviu 634, 889 c. Glover 1290 V. Gordon 561 V. Harrison 265 V. Beflin 1212 V. Henderson 1103, 1127 V. Boward 1019 0. Kirke 482, 955 11. Kramer 106 V. McKim 1060 V. Middleton 516, 518, 523, 564 V. Rowan 451 c. Shook 47 V. Southampton 797, 1297 V. Southcote 536 V. Vallance 1163, 1163 a r. Wisdom 1204 V. Wright 1142 Harrod v. Barrod 401, 406, 1297 Harrod's Heirs v. Cowan 1017 Harry, The 11 Ih Barry Coxon, The 23S Harrynian v. Roberts 288, 779 TABLE OF CASES. Harsh aw v. Moore 1165 Harshey v. Blaoktnarr 796 , 808 Hart V. Alexander 673 , 675 V. Bodley 338 V. Bridge Co. 555 V. Bush 876 V. Carroll 909 V. Clark 1014 V. Clouser 626 V. Deamer 1254 V. Freeman 1102 V. Frontino, etc. Gold Min. Co. 1147 V. Hammett 961 V. Hart 144, 147, 225, 433, 1313 V. Horn 1212, 1213 V. Livingston 684 V. Newcome 1133 V. Powell 265 V. Robinett 160 V. R. R. 294 V. Roper 1258 V. Sattley 876 u. State 338 V. Stone 106, 107 V. Woods 868 Hart's Appeal 838, 1090 Barter v. Christoph 1028 Barter v. Barter 995 Hartford v. Palmer 402, 418 V. Power 414, 467 Hartford Bridge Co. v. Granger 1090 Hartford Ins. Co. o. Davenport 1172 V. Gray 1243, 1320 V. Harmer 445 V. Reynolds 391, 576, 584, 587, 588 V. "Webster 936 V. Wilcox 1026 Hartford Ore Co. v. Miller 1021 Hartley v. Brookes 682 V. Chandler 826 V. Cook 639 V. Wharton 901 V. Wilkinson 1059 Hartman v. Diller 1165, 1166 V. Ins. Co. 507 V. Ogborn 768, 795, 797 Hartranft's App. 604 Hartsell v. Myers 977 Hartshorn v. Williams 175 Hartson «. Shankliu 822 Hartung v. People 443, 707 Hartwell v. Camman 961 V. Root 693, 1319 Harty V. Ladd 1053 Harvard College v. Gore 1097 Harvey v. Anderson 1077 V. Butchers 875 V. Cady 958 B. Clayton 579 VOL. II. — 46 Harvey v. Gardner 903 V. Grabham 901, 902, 906 V. Hilliard 466 V. Ledbetter 1035 V. Mitchell 23, 116, 154 V. Morgan 154 V. Osborne 500 V. Packet Co. 456 V. Smith 3 V. State 438, 524, 665, 666 V. SuUens 1009 V. Thomas 826 V. Thornton 1279 V. Thorpe 72, 90, 116 V. U. S. 446 V. Vandegrift 944 V. Ward 758 o. Wild 771 Harvie v. Turner 763 Harwood v. Harper 466 V. Keys 1213 V. Pearson 355 Hasbrouck v. Baker 377 V. Vandervoort 422 Haskell v. Champion 626 Haskins v. Ins. Co. 447 Haslam v. Crow 82, 220 Bassan v. Barrett 1033 Hassard v. Duke 1059 Bassell v. Borden 115 Bastings v. Livermore 559 u. Lovejoy 863, 1026 V. Pepper 1070 V. Rider 439, 441 V. Stetson 1269 V. Uncle Sam 446 V. Wagner 352 V. Weber 617 Hastings Peerage 1219 Hatch V. Bates 115 u. Carpenter 142 V. Caddington 779 V. Dennis 1163, 1163 a V. Douglass 968 V. Elkins 1212 V. Frages 1060 b V. Gilmore 979 V. Hyde 1058 .;. Kimball 1148 V. Pengnet 468 V. Potter 1108 Hatcher v. Robertson 882, 910 V. Rochelean 1273 Hatchett v. Conner 643 Hatfield v. Lasher 53 V. Perry 123 V. R. R. 346 V. Thorp 723 Hathaway v. Addison 65, 1310 V. Brady 1028 V. Clark 1316, 1355 721 TABLE OF CASKS. Hathaway v. Evans 194 V. Goodrich 833 V. Haskell 1201 V. Ins. Co. 451, 452 u. Johnson 1170 0. Spooner 151 Hathorn v. King 451, 512 Hatton, in re 886 Hatton V. Lockridge 779 V. Robinson 587 V, Warren 969, 1027 Hauherger v. Root 1199 Hauer v. Patterson 952, 1059, 1060 a Haugh V. Blythe 429, 883 Haughey v. Strickler 21, 1192 Haun V. Wilson 47 Hauseman v. Sterling 742 Havard v. Davis 892, 900 Haven v. Asylum 663 V. Brown 939 V. Foster 1240 V. R. R. 692 V. Wendell 518 Havens v. Thompson 937 Haver v. Tenney 444, 946 Haverly v. Mercur 881 Haves v. Merchant 1150 Havis V. Taylor 823 Hawes v. Armstrong 869 V. Draegar 1298 V. Forster 74, 75 V. Ins. Co. 445, 508 V. Marohant 1085 C-. Shaw 1149 V. Watson 1150 Hawke v. Charlemont 39 Hawkins v. Bevel 1023 ^. Carr 490 .V. City of FaU River 440, 446 V. County 1332 U.Craig 136,827 V. Garland 999 v.'Grimes 718 V. Hall 837 V. Howard 676 V. Lusoombe 1208 i;. Rice 129 V. State 508 V. Warren 61, 77 Hawks V. Charlemont 44, 347, 441, 1295 V. Inhabitants 1293 V. Kennebec 324 V. Truesdell 624 Hawley v. Bader 1064 V. Bennett 1160 V. Cramer 632 V. Keeler 876 V. Mancius 797 i;. Robeson 142 Haws V. Tiernan S81 722 Hawthorne v. City of Hoboken 114, 294 Hawver v. Hawver 431 Hay V. Hay 429 u. Kramer 249 V. Moorhouse 77 V. Morris 587 Haycock v. Gerup 714 Hayden v. Denslow 1035 u. Mentzer 1042, 1044, 1048 V. Stone 1165 V. Thayer 689 Hayes v. Burkham 1199 V. CaldweU 533 t/. Callaway 466 V. Dexter 1315 V. Hayes 1008 V. Kelley 1140 u. Levingston 1148 V. Parmalee 431 V. fchattuck 764, 797 V. Skidmore 863 V. Virginia, etc., Ass. 482 V. West 886, 992 Hayling v. Okey 1352 Haylock v. Sparke 1107, 1117 Hayne v. Porter 116 Hayner v. Stanly 763 Haynes v. Brown 662 ,;. Burkam 878, 1199 a V. Cowen 100, 824 V. Crutchfield 1154 V. Haynes 334 ... Hayton 1107, 1118 V. Heard 490 V. Ledyard 529 V. McDermott 708 V. Ordway 823 V. Rutter 726 V. Sinclair 51 Hays V. Askew 1040 u. Cage 1082 V. Dexter 1315 V. Ford 1303 V. Gallagher 361 V. Gribble . 1353 V. Harden 726 V. Hays 414, 433, 478, 696 u. Ins. Co. 920 V. Miller 48 V. Quay 1035 V. Richardson 537 V. Riddle 169 V. Tribble 1279 V. Worsham 909 Hayslep v. Gymer 1136, 1138 Hayter v. Tucker 864 Hayward, in re 600 Hayward v. Bath 690 V. CarroU 129, 1116 V. French 466, 468, 469, 472 V. Gann 879 TABLE OF CASES. Hayward v. Knapp 444 V. Hunger 979 «. People 541 Hayward Rubber Co. v. Dnnoklee 1103 Haywood y. Cope 1017 V. Poster 508 V. Moore 1044 0. Reed 1165 Hazard v. Robinson 1350 Hazleton v. Bank 1174 V. R. R. 712 Hazzard v. Municipality 298 V. Vickery 712 Heacock v. Lubukee 1273 V. State 721 Head i/. Hargrave 446, 447 V. Head 1298, 1299 V. McDonald 823 V. Shaver 515 V. State 562, 566, 1102 u. Tester 468 Headem a. Womack 1156 Headlam v. Hedley 1339 Headman v. Rose 135 Heald v. Davis 1362 V. Thing 175, 451, 452, 455 Healey v. Thatcher 1090 V. Thurm 1348 Heane v. Rogers 1079, 1151 Heap I'. Parrish 954 Heard v. Lodge 770 t. McKee 1101 V. State 712 Hearn v. Ins. Co. 971 Hearne v. Chadbourne 977 Hearst v. Pujol 933 Heath v. Creelock 589 V. Frackleton 784 V. Jaquith 357, 1180 ,.. Page 33, 824 i;. Scott 563 V. State 1064 V. West 253, 1295 Heath cote's case 334 Heathcote's Divorce 648 Heaton v. Findlay 588, 589, 1160 V. Pryberger 1021 Heavenridge v. Mondy 1029 Heaveriu v, Donnell 1058 Hebbard v. Haughlan 587, 1044 Hebblethwaite v. Hebblethwaite 464, 483 Heberd v. Myers 289 Heoht V. Koegel 1049 Hecksoher v. Binney 939 Hedden ». Overton 694 V. Robert 1323 Hedge v. Clapp 555, 556 Hedges v. Hortou 1163 a, 1163 6 Hedrick v. Bannister 1363 V. Gobble 1101, 1168 Hedrick v. Hughes 129, 135 Hedricks v. Morning Star 1070 Heebner v. Worrall 1023 Heely v. Barnes 393 Heeter v. Glasgow 741, 1052 Hefiferman v. Porter 778 Heffield v. Meadows 940, 1044 Heffington v. White 120 Hefflebower v. Detrick 1265 Heffner v. Reed 833 Heffron v. Gallupe 601 Heflin v. Milteu 883, 904 V. Say 262 Heft V. Gephart 1353 Hei V. HiUer 1014 Heideman v. Wolfstein 871 Heiker v. Com. 782 Heilner v. Imbrie 920, 936 Heine v. Com. 265 Heinemann v. Heard 357 Heisteri). Madeira 1031 Helena, The 814 Helm V. Steele 1207 Hellman, in re 1250 Hellman v. Reis 698 Helme v. Ins. Go. 937, 965 Helmrichs v. Gehrke 920 Helser v. McGrath 529, 1201 Helshal v. Blackwood 776 Heman v. Boyce 259 Hemenway v. Smith 583, 584 Heming v. Power 975 Hemmens ?'. Bentley 573 Hemming v. Maddock 555, 557 Hemmings v. Gasson 32 Hemmingway v. Garth 549 Hemphill v. Bank 288, 300 V. Dixon 739 V. McClimans 142 Hempstead v. Reed 288 Henck v. Todhunter 797, 985 Hendee v. Pinkerton 693 Henderson v. Australian Steam Navigation Co. 694 V. Bank 709 V. Barnewall 75 V. Broomhead 497 V. Cargill 205, 828, 858 V. Hackney 80, 713, 953 V. Hayue 565 V. Hays 910 V. Henderson 788, 801 t. Hoke 1264 V. .Jones 570 V. Lewis 1360, 1363 V. Morris 679 V. Stamford 805 V. State 357, 559 V. Thompson 1058 Hendrick v. Com. 30 Hendrickson v. Hvirn^ 1067 723 TABLE OF CASES. Hendriokson v. Norcross 774, 784 Henessy v. Henessy 433 Henfree v. Bromley 627 Henfrey i'. Henfrey 892 Hetiisler v. Freedman 595 Henkel v. Pape 76, 617, 1128 Henkle v. Ex. Co. 1021 V. Smith 674 a Henley v. Hotaling 1031 Henman v. Dickinson 425 V. Lester 1093 Henning v. Ins. Co. 808, 1017, 1019 Henrich v. Cavanaugh 46 Henry v. Bank 534 u. Bishop 723, 725, 726 V. Colby 863 0. Com. 466 t. Goldney 772 V. Henry 998 V. Lee 524 V. Leigh 154, 639 V. Martin 679 V. R. R. 42 V. Smith 1028 V. Warehouse Co. 259 V. Willard 1200 Henry Coxon, The 238 Henshaw v. Bissell 1150 V. Davis 683 c. Pleasanoe 816 V. Robins 961 Hensley v. Tarpey 318 Hensoldt v. Petersburg 290 Henthorn v. Shepherd 338, 635 Henzel ?;. Papas 872 Hepburn v. Auld 1353 V. Bank 415 Hepler v. Bank 1109 Hepworth v. Hepworth 1035 Herbert «. Alexander 1184 V. Eeid 1002 (.-. Sayer 862 V. Tuckel 208 V. Wise 942 Hereth v. Bank 626 Herington p. MoCoUum 980 Herlook v. Riser 678 Herman v. Jus. Co. 957 Hern v. Nichols 1170, 1180 Herndon i'. Casiano 166, 644 ■u. Givens 824 V. Henderson 936, 1014 Heme v. Rogers 1077 Heroman v. Inst. 784 Herrick v. Baldwin 623 V. Bean 1044 1;. Carman 1059 V. Noble 1022 V. Odell 429 V. Swormley 180, 709, 712 Herring v. Cloberry 579 724 Herring v, G-oodson V. Rogers V. R. R. Hersohfeld v. Clarke V. Dexel Hersey v. Barton e. Long Hershey v. Keembortz u. Metzgar Hersom v. Henderson Hervey v. Hervey u, R. R. Herzman v. Oberfelder Hess V. Fox V. Grigg V. Heebie V. State Hesseltine v. Seavey Hetheriiigton v. Kemp Hewett V. Chapman u. R. R. Hewitt V. Pigott V. Prime Hewitt's Will Hewlett V. Cruchley V. Hewlett V. Wood Hewlew v. Cock Hexter v. Knox Hey V. Bruner V. Com. Hey man v. Neale Heysham v. Dettre V. Forester Heyward, in re 1298 156, 690, 736 360 490 288 1138 770 945 867 1026 219, 221 1144 569 902 723 837 708 860 1330 601 1064 749, 1106 606 884 47 1245 451 194, 733 1142 863 a 491 75, 1016 969 824 600 Heywood v. Charlestown 135 V. Reed 253, 569, 834, 1164 Heyworth v. Knight 75 Hiatt V. Simpson 951 Hibbard <,.. Mills 931 V. Russell 515 Hibblewhite v. M'Morine 633, 864 Hibler v. Mollvain 529 Hibshman v. Dulleban 793 Hickerson v. Blanton 980 V. Mexico 986, 988 Hiokey v. Hayter 1121 V. Hinsdale 131, 1124 Hickler v. Leighton 21 Hickman v. Alpaugh 314 V. Bofifman , 1319 1 . Haynes 1024 V. Jones 807 V. Upsall 1276, 1277 Hicks, in re 891 Hicks V. Cleveland 875 V. Cram 226, 253 V. Forrest 1168 V. Lovell 178 V. Marshall 1254 V. Morris 1042 TABLE OF CASES. Hioks V. Sallitt 993 Hidden v. Jordan 908 Hide V. Thornborough 1346 Hier V. Grant 466, 468 Hieronymous v. Hieronymous 782, 783 Hieske v. Brousard 1059 Higbee v. Dresser 576, 590 Higdon V. Heard 533 Higgius V. Bogan 739 V. Butler 466 V. Carlton 451, 455, 1008 V. Cheesman 875 u. Dewell 436 V. Dewey 436, 509, 1294 V. Moore 1058 K. Reed 90, 136 V. R. R. 1154 V. Senior 937 Higgs V. North. Asam Tea Co. 1152 o. Wilson 1077 Higli, appellant 83 Higham v. Ridgeway 226, 229, 239 u. Vanosdal 225, 427, 529 Highberger v. Stiffler 600 Highfield v. Peake 828 a Highland Turnpike Co. v. MoKean 661, 662 Highsmith v. State 643 Hightower v. Maull 948 Higley K. Bid well 189 V. ftilmer 38 Hildebrand v. Crawford 469 V. Fogle 945 Hildeburn ». Curran 559 Hilderbrandt v. Crawford 468 Hildreth v. O'Brien 927, 930 V. Shepard 485 Hill V. Bacon 317 I/. Barnes 1246 u. Beebe 1362 V. Bennett 1157 V. Blackwelder 1144 V. Blake 1031 n. Burke 980 V. Bush 1017 V. Cooley 622, 629 u. Crompton 21 „. Dolt 377, 382 u. Draper 1041 V. Eldredge 208 u. Ely 1059 u. Epley 1150 0. Felton 1006 V. Fitzpatrick 142 V. Frost 879 V. Gaw 1019, 1058 V. Gayle 1362 V. Gooderioh 931 a V. Goodyson 1246 V. Grigaby 314 V. Gust 555 Hill V. Ins. Co. 507 u. Johnston 873 V. Kling 833 V. Lafayette Insurance Co. 507 V. Loomis 1031, 1032 V. Lord 1347, 1353 V. Manchester 1045 V. McDowell 947, 961 a u. Mendenhall 795, 796, 797, 808 V. Meyers 909 V. Miller 927, 946 V. Morrison ; 290 y. Morse 770, 772 V. Myers 856 V. New River Co. 1295 V. Nichols 367 V. Nisbet 622, 631 u. North . 257 V. Parker 136, 823 V. Peyton 920 V. Proctor 191 V. R. R. 436, 1070, 1183 V. Riefsnioker 797 V. Roderick 237, 1161, 1199 a V. Scott 616, 684 u. Shields 1059 V. Simpson 632 V. State 522, 542, 544 V, Sturgeon 444 V. White 1111 V. Wilson 467 Hill's Est. 678 Hillabush v. Richter 779 Hillary v. Waller 1353 Hillebrant v. Burton 1353 Hilliard v. Outlaw , 288 Hilton V. Geraud 864 V. Homans 1044, 1048 V. McDowell 1193 Hilts V. Colvin 90 Hilyard o. Harrison 749, 753 Himmelmann v. Hoadley 336 Hinchliif v. Hinman 690 Hinchman v. Budd 626 V. Whetstone 77 Hinckley i>. Beokwith 339 V. Davis 1212 t>. Thatcher 997 Hind V. Rice 290 Hinde v. Vattier 289 V. Whitehouse 868 Hinde's Lessee v. Longworth 137 Hindley v. Lacey 1058 Hindmarsh v. Charlton 886, 889 Hinds V. Barstow 40, 41, 43, 360 V. Harbou 439 V. Ingham 1144 Hine v. Campion 482 V. Hine 996 u, Pomero 558 Hiner v. People 640 725 TABLE OF CASES. Hines v. State 420 Hodges V. Bales 570 Hinnemann v. Eosentack 937 , 940 V. Bennett 414 Hinnersley v. Orpe 1052 V. Hodges 1157 Hinsdale v. Larned 837 V. Howard 908 Hinson v. Taylor 1165 V. Man. Co. 883 V. Walker 1163 V. Strong 942 Hinton v. Brown 109 Hodgkins v. Bond 873 V. Locke 961, 961a ti. Chappell 38, 262 Hipes V. Cochrane 339 Hfldgkinson v. Kelly 1243 Hipsley v. R. R. 40 Hodgson V. Clarke 999 Hirschfield v. Levy 516 V. Davies 958, 965, 967, 968 V. Smith 626 V. Hutchinson 882, 1145 V. Williamson 1165 V. Jeffries 466 Hisaw V. Sigler 466 V. Johnson 863, 909 Hiscox V. Hendree 492 V. Le Bret 875 Hissrick v. MoPherson 678 Hodnett v. Smith 723 Hitch V. Wells 888 Hodsden v. Kilgore 364 Hitchcock V. Aicken 802 Hoe V. Nathrop 114 V. Burgett 260 ,441 Hoes V. Van Alstyne 302 V. Kiely 1049 Hoeveler v. Mugele 1045, 1047 Hitchin v. Campbell 779, 782 , 787 Hoffman v. Armstrong 1343 Hitchius V. Eardley 203 , 216 V. Bank 106C , 1060 b, 1061 Hite V. State 937 , 939 V. Bell 1332 V. Wells 878 V. Cauble 496 Hitt V. Allen 1196 V. Coster 397, 567, 980 V. Rush 404 , 409 V. Felt 909 Hix V. Whittemore 402, 1253 V. Hoffman 803 Hizer v. State 336 )/. Ins. Co. 1246 Hoad V. Grace 1044 V. Miller 1060 Hoadley v. Hadley 466 V. Moore 1059 Hoag V. Lamont 1175 Hogan V. Carruth 194, 1348 Hoagland v. Hoagland 1026 V. Cregan 552 u. Schnorr 980 V. Reynolds 1064 Hoar V. Goulding 942 V. Sherman 1207 Hoard v. Peck 452 Hoge V. Fisher 1253 V. State 402 V. People 601 t. Stone 1021 Hoge's Estate 1009 Hoare v. Graham 1058, 1059 Hogeboom v. Glbbs 466 V. Silverlock 282 , 335 Hogel V. Lindell 1031 Hobart v. Beers 956 Hogg V. Orgill 1196 V. Hobart 466 ,468 Hoggan V. Craigie " 84 Hobbersfield v. Browning 138 Hoghton V. Hoghton 1090 Hobbs V. Duff 774 Hogiiis V. Plympton 940, 942 II. Henning 814 Hogsett V. Ellis 1101 u. Knight 896 Hoile V. Bailey 879 V. R. R. 288 Hoitt V. Moulton 62, 515, 562, 707 V. Russell 471 Hoke I'. Gameville 290 Hobby V. Dane 445 Holbard v. Stevens 61 Hobson V. Doe 828 Holbert v. State 565 V. Ewan 970 , 982 Holbert's Est. 781 V. Harper 178 Holbrook v. Armstrong 883 V. Ogdeu 838 V. Burt 358 Hoby V. Roebuck 863 I. Dow 632 Hockensmith v. Sluslier 998 V. Holbrook 1046, 1165 Hocker v. Jamison 177 ^. Mix 481. 500 Hockiu V. Cooke 395, 958 , 965 V. New Jersey Zino Co. 740 Hodgdon v. Shannon 1168, 1332 V. Niohol 116, 740 V. Wight 114, 1362 ,,. Tirrell 861 Hodge V. Coriell 468 , 476 V. Trustees 147 u. Higgs 240 Holcomb V. Davis 290 V. Thompson 1167 V. Holcomb 402, 403, 451, 466 726 TABLE OF CASES. Holoombe v. Hayward . 782 V. Hewsou 1287 n. State 141 Holcroft V. Halbert 640 Holden v. Liverpool 361 V. Parker 1044 V. Rison 822 V. Robinson 510 Holder v. Coates 1343 V. Nunnelly 1035 Holderness v. Baker' 1184 Holdernesse v. Rankin 487 Holdfast V. Downing 729 Holding V. Pigott 958 Holdsworth v. Davenport 864 V. Dimsdale 1090 Holendyke v. Newton 1060 5 Holgate, in re 888 Holiday v. Atkinson 1060 V. Harvey 60 Holland <.. Hatch 781 V. Reeves 90, 531, 1106 HoUenbaok v. Fleming 725, 739 V. Marshall 508 V. Marshaltown 510 Hollenbeck v. Rowley 676, 677 V. Shutts 1058 V. Stanberry 988 Holler V. Firth 397 V. Weiner 1090, 1127 Holley V. Acre 770 V. Burgess 47 V. Young 836, 1094, 1118 Holliday v. Butt 683 o. Cohen 563 V. Marshal 865 Hollingham v. Head 21, 1287 HoUingshead v. McKenzie 912 Hollingsworth v. Martin 1365 HolUnshead V. Allen 1216 HoUis V. Calhoun * 477 V. Goldfinch 46 V. Hayes 1085 V. Pond 693 V. Wylie 662, 565 Hollister v, Reznor 1163 a HoUocher v. HoUocher 1044 HoUoway v. Galloway 887 V. Rakes 1156 Holly V. Burgess 50 V. Flournoy 99, 100, 1165, 1215 Holm an v. Austin 484 u. Bank ^ 726 V. Burrow 335, 336, 337, 338 V. Kimball 593 V. King 300, 302, 303 Holmes v. AH 691 V. Baddeley 583 V. Budd 1194 o. Chester 466 V. Clifton 1155 Holmes v. Comegys 593 V. Cook 1060 b V. Crossett 939 V. Grant 1032 V. Holmes 83, 84, 903 a, 996 V. Hoskins 875 V. Hunt 480, 482, 850, 1238 V. Johnson 1274, 1277 V. Maokrell 873 V. Marden 219, 682 V. Mitchell 626, 870 V. Stateler 563 V. Trout 861 Holmes's Appeal 1044 Holt V. Collyer 937 V. Miers 155, 831 V. Moore 1058 V. Squire 1184 V. Thaoher 799 Holton V. Kemp 625 i,. Lake Co. 446, 449, 1184 V. Meighen 1031 Holtz V. Dick 427, 1127 Holtzclaw V. Blaokerby 1017 Holyoke v. Harkins 810 Holzworth V. Kooh 1058, 1061 Home Ins. Co. u. Baltimore 1014, 1090 Home V. McKensie 516 Homer v. Brown 781 V. Cilley 733 V. Taunton 975 V. Wallis 714, 727 Homersham v. Wolverhampton Ry. Co. 694 Homes v. Smith 251 Hommel v. Devinney 1264 Honore v. Hutchings 1032, 1035 Honstine v. O'Donnell 551 Hood V. Barrington 66 V. Beauchamp 208, 219 V. Fuller 115 V. HoodJ 785, 988, 1168 V. Mathers 942 D. Maxwell 446 V. Reeve 1190 V. Wise 422 Hood's Est. 811 Hook V. Bixby 466 V. Craighead 1019 v. George 551 V. Stovall 441, 510 Hook's Est. 572 Hooker v. Johnson 492, 678, 683 Hooks V. Smith 61 Hooper v. Browning 555 V. Gumm 693 V. Moore 300, 665 V. R. R. 961 V. Taylor 684 Hoops V. Atkins 697 Hoover v. Gehr 632, 688 727 TABLE OF CASES. Hoover v. Mitchell V. Reilly Hope V. Balen u. Evans V. Everhart V. Lawrence V. Smith. V. State Hopewell u. De Pinna Hopkins v. Chandler V. Cliittendeu V. Grimes V. Holt V. Kent u. Lacouture V. Mazyck V. McGrilliouddy I/. Megquire V. Millard u. Olin 781, 782 1029 1015, 1018 1077 1148 1144 1044, 1048 1070 1274 837 619 1002 996 1301 950 1241 a 35 707 120 533 1360 V. Richardson 265 V. R. R. 294, 436, 509 ' V. Smith 1103, 1108 V. Woodward 796 Hopkinton v. Springfield 1360 Hopkirk v. Page 1140 Hopper V. Com. 491, 499 V. Hopper 758 Hopps V. People 49 Hopwood V. Hopwood 974 Horam v. Humphreys 52 Horan v. Weiler 366, 1245, 1314 Horn V. Bentinck 604 V. Bray' 879 V. Brooks 237, 931, 1019, 1156 . Aitkin 1050 V. Atwater 1324 ... Phillips 1302 ... Pub. Ad. 1362 Kenneys v. Proctor 868 Kensington v. Inglis 519 Kent V. Agard 1032 V. Garvin 618, 621 V. Haroourt ' 147, 1156 V. Kent 883 i>. Lasley 1032 V. Lincoln 268, 441 V. Lowen 1163 o V. Manchester 1019 TABLE OF CASES. Kent I'. Mason 175 Keystone Co. u. Johnson 1165 V. Mehaffy 630 Kezar v. Elbira 781 V. Ricards 985 Khajah Hidayut Oollah v. Rai Jan V. Walton 1163 a Khanum 211 V. White 357 Kibbe v. Bancroft 682 V. Whitney 1290 V. Dunn 1302 Kentner v. Kline 416 V. Ins. Co. 1170 Kenton County Court t'. Bank Lick Kidd V. Alexander 741 Co. 1249 V. Carsou 864, 905 Kenworthy v. Schofield 868, 869, 872 V. Cromwell 61 Kenyon v. Smith 1260 V. Manley 118 V. Stewart 66 Kidder v. Barr 910 V. Woodruff 1205 u. Parhurst 356 Kenzie v. Penrose 1045 v. Stevens 1287 Keough V. McNitt 1026 V. Vandersloof 1045 Kepp V. Wiggett 1040 Kidgill V. Moor 1305 Keppel V. R. R. 338 Kidney v. Cockburn 208, 210 Kerchner v. McRae 1067 Kidsou V. Dilworth 1059, 1061 Kermott v. Ayer 302 314, 315, 335, Kidston v. Ins. Co. 961a 446, 1291 Kieth V. Kerr 1015 Kern v. Ins. Co. 445, 507 Kilbourne v. Jennings 444 Kernin v. Hill 712 i.-. Thompson 383 Kerns v. Swope 94 Kilburn v. Bennett 1097, 1284, 1285 Kerr v. Commissioners 448 V. Mullen 562 V. Condy 803 Kilgore v. Buckley 311 V. Parish 616 V. Cross 451 V. Freeman 356 V. Dempsey 1250 u. Hays 986 V. Hanley 466 o. Hill 866 Kilgour V. Finlyson 1196 V. Hilt 673 Killebrew i\ Murphy 338 V. Kerr 796, 803, 808 Killian . Case 958 Lomersou v. Hoffman 151 Lond. & Brigh. Ry. Co. u. Fa^ir- clough 1353 Lond. Gold Co. v. Blake 1144 Londonderry v. Andover 208 V. Chester 83 Londoner v. Lichtenheim 395 Lonergan v. Ass. Co. 380 V. Whitehead 683 Long V. Battle Creek 923, 987 V. Brenneman 800 a u. Champion 1106 V. Colton 191 V. Conklin 683 V. Crawford 123 u. Drew 156 V. Duncan 909 V. Hartwell 868 V. Hitchcock 558 V. Kingdou 619 V. Lamkiu 566, 568 V. McDour 194 V. Morrison 562 «. Pool 1249 V. R. R. 920, 921, 936, 1014, 1070 a. Spencer 698, 699 V. State 713 V, Steiger 501 V. Weaver 980 V. White 863 Longabaugh v. R. R. 43 Longenecker v. Hyde 175, 1212 Longfellow v. Williams 872, 1127 Longhurst ». Ins. Co. 1019 Longley v. Vose 642 Looker v. Davis 473, 474 Loom Co. V. Higgins 972 Loomis V. Green 366 V. Jaoksou 945 V. Loomis 1196 u. Mowry 1301 V. Pulver 789 V. Wadhams 1077, 1092 Loop V. Bell 268 V. State 644, 824 Lopez V. Andrews 1348, 1353 V. Deacon 756 Loraine v. Tomlinsou 1014 Lord u. Beard 410 V. Bigelow 636, 1139, 1184 V. Colvin 259, 525, 530 V. Commis. for City of Sydney 1341 «. Lord 824 V. Moore 678, 683 V. Staples 310 Lorenzana v. Camarillo 1120 Lorillard v. Clyde 786, 787 Loring v. Aborn 358 V. Mansfield 789 V. R. R. 28, 40 747 TABLE OF CASES. Loring v. Steinemaii 811, 1274 Lowe V. Peers 1045 I,-. Whittemore 153 V. R. R. 446, 1175 t. Woodward 992 u. Thompson 1039 Los Angelos v. Melius 782 V. Williamson 451 Losee v. Buchanan 359 Lowell V. Flint 153 V. Mathews 571 V. Winchester 1180 Loshbough V. Birdsall 513 Lower v. Winters 565, 568 Loss V. Obry 1020, 1030 Lownes v. Chisolra 1241 o Lothian v. Henderson 814 Lowney v. Perham 537 Lothrop V. Adams 53 Lownsberry v. Bakershaw 795 V. Blake 100, 107, 642 Lowry v. Adams 937 V. Foster 1051 V. Cady 90 Lott V. Macon 163 V. Harris 515, 702 Lotz V. Scott 41, 452 V. McMillan 797, 985 Loubz V. Hafner 1295 V. MoMurtry 780 Louden v. Blythe 262, 1052, 1102 0. Moss 227, 1163 6 1/. Walpole 701 V. Pinsou 1026 Loudon V. Lynn 662 Lowrys v. Candler 466 Lougee v. Washburn 1097 Lowther v. Lowther 366 Loughlin v. Loughliu 415 Loyd u. Freshfield 525, 593 V. People 415 i,. R. R. 346 Louis ;;. Brown 779 Lubbock V. Tribe 149 v. Easton 466, 473 Luby V. R. R. 175, 261, 1173, 1174 Louisiana v. Richoux 290 Lucas V. Barrett 1175 Louis. Bank v. Nav. Co 784 u. Bristow 961, 969 Louisville v. Hyatt 1310 V. Brooks 21, 139 430, 431, 478, Louisville, etc. R. R. v. Atkins 177 1265 V. BrowB 357 V. De la Cour 1194, 1200 V. Caldwell 879 u. Flinn 561 V. Falvey 346, u. Ladow 314 438, 452, 512 V. Nichols 32 V. Hixon 339 I'. Novosilieski 1362 V, Richardson 563 V. State 422 Lounsberry v. Snyder 859, 860 V. Trumbull 1165 Louw V. Davis 788 Luce V. Dexter 773 Lovat Peerage case 201 V. Doane 683 Love V. Buchanan 992 V. Hoisington 21 V. Gibson 763 V. Ins. Co. 436, 507, 958, 961 v. Masoner 542 Luckhart v. Cooper 1320 V. Paytou 249 V. Ogdeu 357 u. Stone 469 Luckie v. Bushby 1064, 1065 V. Wall 1059 Lucy !'. Mouflet 1154 Lovejoy v. Lovett 939, 941, 946 Luders v. Anstey 1145 u. Murray 773 Ludington ;;. Ford 1021, 1028 Lovelady v. Davis 811 Ludlow V. Johnston 63 V. State 452 I. Pearl 1118 Loveland v. Green 76 V. Van Rensselaer 300 Lovell V, Arnold 811, 821 Luelleu v. Hare 632 Low's case 601 Luf burrow v. Henderson 1046 Low's Est. 429 Luhrs i\ Kelly 1265 Low V. Argrove 626 Luke V. Calhoun Co. 335, 676 V. Burrows 100 Luke, in re 830 ii. Mitchell 533, 539, 562 Lull V. Cass 931 V. Payne 620 Lum V. State 1287 V. Perkins 1199 Lumpkin v. Murrell 338 V. Peters 137 Lumsden v. Cross 640 Lowe V. Carpenter 1349, 1351 1 Lunay v. Vantyne 430, 1217 V. Joliffe 512 Laud V. Bank 1149 V. Lehman 961a V. Lund 1031 V. Lowe 501 V. Tyngsborough 259, 266, 512 V. Massey 486 Lunday v. Thomas 130, 550, 838 748 TABLE OP CASES. Lnngsford v. Smith. 141 Maberry v. R. R. 41 Luning v. State 438, 665 Mabley v. Kittleberger 1076, 1174 Lunnis v. Row 492 Macartney v. Graham 149 Lunsford v. Lead Co. 693 Macaulay v. Shackell 754 Lurton v. Gilliam 638, 671 Macay, ex parte 466 Lusoombe v. Steer 755 Macdonald v. Longhottom 940, 946 Lush V. Druse 674 V. Whitfield 1059 V. McDaniel 268, 441 u. Whitford 1060 a Lusher v. Seites 980 a Maodougal v. Young 90 Lusk's App. 799 Macferson v. Tlioytes 717 Luttrell V. Reynell 179 Macgregor v. Kelly 1326 Lydiok v. Holland ■909 V. Laird 583 Lyell V. Lapeer Co. 339 Machir v. McDowell 1050 Lyford v. Farrar 397 Macintosh ;;. Haydon 626 Lygon V. Strutt 197 y. R. R. 753, 755 Lyle !>. Elwood 84 Mack !). State 259 V. Shinnebargh 869 Mackay v. Com. Bk. 1170 Lyles V. Lyles 570 V. Easton 665 Lyman v. Beohtel 685 V. Gordon 795 V. Brown 805 Mackentile v. Savoy 945 t. Gredney 946, 957 Mackenzie v. Cox 363 V. Ins. Co. 436, 507 V. Duulop 9 61a u. Little 1019 w. Yeo 588 V. Philadelphia 565, 569 Maokin v. Grinslow 712 V. State 491 V. Mackin 470 V. U. S. 1021 Mackintosh v. Marshall 675, 1170, Lynch v. Clerke 114 1243 V. Coffin 1264 Mackley's App. 797 II. Lively 640 Mackrell v. Wolf 466 V. Lynch 857, 858, .859, 860 Maclean v. Scripps 91 V. McHugo 681 MacLeod v. Skiles 1050 V. Petrie 682, 683 Macomber v. Scott 714 V. Swanton 784 Macon R. R. v. Davis 176 Lynde v. Judd 130 V. McConnell 360 u. McGregor 551, 1103, 1165 Macrory v. Scott 872, 880 Lyndsay v. K. R. 359 Macullum v. Turton 533, 536 Lyne v. Bank 830 Madden v. Burris 690 Lynes v. State 1206 V. Farmer 420 Lynn v. Thomson 40 V. Floyd 879 Lyon V. Boiling 107 V. Tucker 943 V. Fleahmau 1246 Maddock, in re 889 V. Guild 1323, 1360 Maddock v. Marshall 1171 V. Lawrence 1265 Maddox v. Fisher 331 V. Lemon 931a V. Graham 746 V. Lyman 708, 714, 718, 719 Maden v. Catanach 387, 395, 396 V. Lyon 411, 1077, 1220 Madge v. Madge 1220 V. Miller 921, 929 Madigan v. DeGrafF 522 V. Phillips 681, 685, 836 u. Walsh 863 V. Reed 857, 858, 860, 1143 Madison v. Biirford 290 f. Wilkes 456 V. Nnttall 1156 Lyons v. DePass 331 V. Ward 838, 1116 a Lytle V. Bass 1026 V. Colts 1365 M. M. & A. Glue Co. !>. Upton 335 Maberley v. Robbins 296 Maberly v. Sheppard 875 Madison R. R. o. Norwich Sav. Co. 1170 Madrid Bank v. Rayley 490 Maffit V. Rynd 1031, 1032 Magee v. Atkinson 951 V. Doe 514 V. Lovell 925 V. Mark 1246 V. Osborn 707 V. Raiguel 1163 V. Scott 1266, 1384, 1336 V. State 506 749 TABLE OF CASBS. Mageehan v. Adams 1021 Magellan v. Thiimpson 566 Mageman v. Bell 466, 473 Magennis v. MacCnllough 861 Maggi V. Cutts 41, 1295 Magie v. Osborn 708 Magill V. Kiuffman 1180, 1210 Magnay v. Bart 390 V. Knight 62 Magness v. Walker 431 Magoon v. Warfield 829 Magoun v. Walker 123 Maguire v. Baker 942 V. Corwine 1127 V. Middlesex K. Co. 40 V. Sayward . 117 V. State 826 Maha«.,Ins. Co. 1019 Mahaive Bank v. Barry 1019, 1031 V. Douglass 626 Mahan v. U. S. 869, 878 Mahana v. Blunt 909 Mahaska v. Ingalls ' 1212 Maher v. Chicago 262 V. Ins. Co. 1021, 1172 Mahomet v. Quackenbush 290 Mahon v. U. S. 869, 878 Mahone v. Williams 1167 Mahoney v. Ashton 510, 831 V. Bedford 53 V. Ins. Co. 606 Mahony v. Hunter 366 Mahood v. Mahood 1267 Mahurin v. Bickford 99 Maigley v. Hauer 1048 Mailhouse v. Inloes 781 Mailler v. Propeller Co. 29 Main, in re 1274 Main v. Melborn 910 Maine v. Harper 520 Maine State Co. a. Longley 663, 694 Maingay v. Gahan 816 Maither v. Maidstone 1058 Maitland v. Bank 570 Major V. Hansen 623 Makin v. Birkey 685 Makler v. McClelland 1021 Malcolm v. Scott 1084 Malcomson v. O'Dea 194, 199, 1341 Malecek v. R. R. 1173, 1174, 1177, 1182 Males V, Lowenstein 800 Maley v. Shattuok 814 Mali Ivo, The 801 Malin v. Malin 416 Malins u. Brown 910 Mallan v. May 924 Malleable Iron Works i/. Phoenix Ins. Co. 1172 Mallett V. Bateman 879 V. Brayne 857 750 Mallett V. Lewis Mallory v. Gillett V. Griffey V. Leach )-. Mallory o. Stodder Malone v. Dougherty 883 879 362 1019 1031 861 481, 529, 1017, 1026, 1044 654 1337 1243 530 758 633 0. L' Estrange u. O'Connor V. R. R. V. Spilessy Malone's App. Maloney v. Bartley <.-. Horan 786 Malpas D. iClements 977 V. R. R. 1026 Maltman v. Williamson 357 Malton V. Nesbit 452 Mamlock v. White 1194 Manahan v. Noves 932, 1017 Manb.v v. Curtis 1274 Manchester i'. Manchester 422 V. Slason 693 Manchester Bk. v. White 1323 Mandall v. Mandall 1248 Mandeville v. Reynolds 135, 797, 1302 V. Stockett 825 Mangles v. Dixon 1147 Mangum v. Ball 958 Mangun v. Webster 321 Manhattan v. Lydig 1131,1140, Manhattan Ins. Co. v, Broughtou 781 V. Webster 1172 Manigault v. Deas 769 Mankin u. Chandler 814 Manley v. Shaw 602 Maun V. Best 259 V. Bishop 871 V. Cook 1068 V. Lang 1121 V. Pentz 693 V. R. R. 21 V. School Dist. 921 V. Smyser 920 Manning v. Cox 1207 u. East Cos. Ry. Co. 824 V. Hogan 102 V. Ins. Co. 356 Manny v. Dunlap 331 V. Harris 786 Manson v. Blair 141 Manston v. Alston 837 Mantel v. R. R. 436 Manufaot. Bank i-. Hazard 1143 Manvilleu. Karst 782,786 Many v. .Tagger 1163 Mapes V. Leal 115, 727 Maple V. Beach 758 V. R. R. 764 Mapp V. Phillips 1183 TABLE OF CASES. Marble v. Keyes ' 788 V. Marble 225, 863, 903 a V. MoMinn 668 Marbury v. Madison 286, 604, 754 Marc V. Kupfer 958 Marcellus v. Countryman 792 March v. Com. 324 ■/. fiarland 61, 123 V. Harrell 570 V. Ludlam 578 V. Yerble 468, 480 V. Walker 1246 Marchmont Peerage 664 Maroly v. Shults 516, 518, 520, 522 Maroott v. R. R. 510 Marcy v. Barnes 676, 720 V. Clark 761 V. Ins. Co. 263, 509 V. Stone 237, 1168 Mardis v. Shackleford 726 Mare v. Charles 1044 Margareson v. Saxton 1084 Marguerite v. Chouteau 311 Maria das Dorias, The. 639 Marianski v. Cairns 1105 Marietta Bk. ;;. .Janes 1059 Marine Ins. Co. v. Hodgson 832 V. Ruden 1070 Marine Inv. Co. v. Haviside 1313 Mariner v. Rodgers 942 Marion v. Faxon 950 V. R. R. 263 Mark v. State 417 Markel v. Evans 1302, 1354 Market Bk. v. Pac. Bk. 335 Markham v. Carothers 1033 V. Gonaston 632 V. Jandon 958, 961, 968 „. O'Connor 763 Markley v. Swartzlander 529 Marks v. Cass. Co. Mill 958 V. Colnaghi 239 V. Lahee 229, 231 V. Winter 141 Marksbury v. Taylor 1248 Marlatt v. Clary 823 Marler v. State 178, 179 Marley v. Noblett 883 Marlow v. Marlow 129, 130, 152 Marquand v. Hipper 869 Marquette R. R. v. Kirkwood 417 V. Langtou 21 Marqueze v. Caldwell 873 Marr v. Gilliam 66, 1353 V. Given 1353 Marrahan v. Noyes 906 Marriage v. Lawrence 639, 661 Marriot v. Marriot 811 Marriott v. Hampton 788, 789 Mars V. Ins. Co. 1175 Marsden v. Overbury 384 Marsh v. Bellew 1027 V. Case 682 c. Colnett 662, 732 V. Davis 909 V. Falker 366 u. Gilbert 468 u. Gold 1090 V. Hammond 551, 781 V. Hand 93 V. Home 363 V. Jones 180, 1109, 1295 u. Keith 588 V. Loader 1272 V. Masterton 786 V. McNair 931 a V. Mitchell 1110 V. Pier 765, 787, 988 V. Potter 431 V. Pugh 422 V. Rouse 875 V. Whitmore 1249 Marshall's Appeal 996, 1009 Marshall v. Adams 180 V. Baker 906, 1017, 1019, 1022 V. Charhart 380 «. Cliffs 1184 V. Columbian F. Ins. Co. 1172 V. Dean 1050 V. Ferguson 866 V. Fisher 767 V. Gougler 626, 627 V. Green 867 V. Gridley 944 V. Haney 141 V. Ins. Co. 507 V. Lamb 1315 V. Lynn 901, 902, 906 <•■. Nav. Co. 1341 u. Norris 140 V. Oakes 1256 V. Peck 473 v. R. R. 379, 382, 872, 1127, 1184 Marshman v. Conklin , 422 Marsters v. Lash 314, 1292 Marston v. Deane 62 I). Downes 535 a. Roe 1010 V. Swett 765, 784 V. Wilcox 1365 Martel v. Somers 1162 Martendale v. Follett 622, 626 Martin v. Algona 1077 u. Anderson 122 V, Barnes 566 V. Berens 921, 932, 940, 1019, 1058 V. Boyce 1118 u. Clarke 935 751 TABLE OF CASES. Martin v. Cole 1059 Masonic Ins. Co. v. Beck 606 V. Cope 180 Massaker v. Massaker 992 V. Dnimm 366 Massengill v. Boylea 942, 945 V. Elden 527 Massey v. Allen 228 0. BVancis 290 V. Bank 77 u. Good 253, 518 V. Farmers' Bank 565 V. Hall 115, 799 V. Hackett 115 V. Hardesty 47, 53 V. Johnson 863 v. Hemming 490 V. Lemon 758 u. Hewitt 807 c. Walker 510 u. Ins. Co. 1284 ■u. Westcott 64, 65 V. Jones 468 , 469, 474, 476 Massonier v. Ins. Co. 63 V. Judd 797, 982, 985 Massure v. Noble 507 V. Loci 975 Mast V. Pearce 1021 V. Maguire 714, 715 Master v. Mille 626 V. Martin 300, 339, 566 ii. Miller 622, 626 u. McLean 784 Masters v. Freeman 939 V. Nioolls 801 V. Masters 972 V. Payne 302 V. Pollie 1343 V. Peters 1082 V. Varnier 1168 «. Rex 797 Masterson v. Le Claire 325, 326 u. Righter 1063 Mastin v. Duncan 795 V. Rooney 787 Maston v. Oloott 786 V. Root 1192 Matcha v. Pierie 265 V. State 64, 1108 Matchin v. Matchin 1220 0. Tobin 21, 22 Mather v. Butler 1017, 1019 ,1. Tucker 259 V. Scoles 910 V. Williams 135, 377 V. Trinity Ch. 1348 Martindale v. Faulkner 1240 Mathers v. Buford 499 V. Parsons 931 Matlies V. Robinson 684 Martineau v. May 483 Matheson v. Ross 1124 Marvich o. Elsey 17S Mathews i'. Bowman 64, 988 Marvin v. Bennett 1017 V. Mathews 1005, 1077, V. Dutoher 1079 1220 V. Richmond 1090 V. Poultney 482 Marx V. Bell 541, 1101 Mathewson v. Ross 698 V. Heidenheimer 657 V. Sargeant 177 V. Hilsenbe.rger 541 Mathilde v. Levy 566 e. People 481, 484 Matlack v. Livingston 1060 Mary, Tlie 814, 837 Matlock V. Glover 712 Maryland v. Baldwin 84, 1080 V. Livingston 1044 Mask V. State 529, 1192 Matoon v. Clapp 808 Mason's case 318 Matson v. Booth 625 Mason v. Bradley 626 V. Wharam 880 K. Buclianan 1042 Matter of Taylor 83 V. Bachter 792 Matteson v. Ellsworth 1363 V. Fuller 201 V. Noyes 76, 1128 i'. Graff 1058 V. R. R. 268, 431, 440 V. Lawrason 97 Matthew v. Osborne 766 V. Massa 951 Matthews v. Coalter 1134 V. McCorraick 466,473 I. Dare 1088 V. Phelps 439 V. Dowling 1208 V. Poulson 484, 489, 1094 V. Duryee 760 i;. School Dist. 60 V. Houghton 1163 a V. Skurray 961 « c. Huntley 47, 1246 t;. State 30 !'. Poythress 415 V. Tallman 147 V. Sheehan 1031, 1032 V. Wash 288 V. Thompson 944 V. Wolff 824 V. Westboro 9S7 I'. Wood 466 t'. Yerez 432 ... Wythe 490 Matthew's Est. 581 752 TABLE OF CASES. Matthis V. State 555 Maynard v. Rhode 1170 Mattice v. Allen 874, 877 Mayo !;. Ah Loy 795 Mattingly v. Nye 758 o. Johnson 120 Mattisou V. R. R. 441 V. Mayo 535 Mattock^ V. Lyman 518, 1138, 1154 Mayor v. Blamire 1077 Mattoon v. Young 466, 468 V. Brittan 824 Mattox V. Bays 1138 V. Butler 599 Matts V. Hawkins 1340 V. Erben 1241a Maubourquet v. Wyse 803 V. Harwood 290 Mauch Chunk v. McGee 290 V. Horner 1348 Maugham v. Hubbard 518, 739 V. Howard 1090 Maule V. Buoknell 879 V. Johnson 149 Maun V. Russell 674 V. Payne 883 Mauncy v. Crowell 129 V. R. R. 1249 Maund v. McPhail 998 V. Warren 234, 236, 1348 Maunsell v. White Mauri v. Heffernan Maurice v. Worden Mauro v. Piatt Maury v. Talraadge Maute V. Gross Maverick v. Austin V. Marvel Mawiok v. Elsey Mawles v. Lowenstein Mawson i'. Hartsink Maxham v. Place Maxted i;. Seymour Maxwell's case Maxwell's Will Maxwell v. Carlile V. Rives V. Stewart V. Warner V. Wilkinson May V. Babcock !'. Bradley V. Brown u. Coffin V. Gamble V. Gates V. Hewitt V. Jameson V. Little u. May V. Pollard V. R. R. V. State K. Taylor V. Ward Mayberry v. Johnson Mayeuborg v. Haynes Mayer v. Adrian a. Mayer Mayes v. Turley Mayfield v. Wadsly Mayhew v. Gay Head 11. Sullivan Mayhugh v. Rosenthal Maynard v. Beardsley V. Fellows VOL. It.— 48 882, 1145 137 130 1077 1174 931 1353 466 178, 1214 1191 562, 565, 568 576 1103 908 1008 115 378 799, 809 514 523 1070 452 32 1241a 1363 1144 950 980 1217 653, 1007 690 1143 613 1213 870, 902 854, 865 1143 920, 949 433 466 867, 902 980 436 1276 53 1061 Mayor of Beverly v. Att.-Gen. 276 Mayor of Doncaster v. Day 177 Mayor of Exeter v. Warren 229, 236 Mayor of Ludlow v. Charlton 694 Mays V. Deaver 1108 V. Dwight 1019, 1021 Mayson v. Beasley 134, 140, 238, 519 McAdams v. Beard 265 V. Stillwell 177, 729 MoAdery v. State 509 McAfee v. Doremus 123 McAleer v. Horsey 33 V. MoMurray 1226 McAllister v. Butterfleld 1008 u. Engle 262 McAndrew o. Radway 123 V. Tel. Co. 1180 McAndrews v. Santee 1120 McArthur v. Carrie 1199 a McAteer v. MoMullen 555, 556 McAulay v. Earnhart 154 McBane v. People 982 McBarron v. Gilbert 1338 McBee v. Fulton 33, 50 McBride v. Bryan 986 o. McBride 541 I'. Watts 688 McBride's Appeal 466, 473 McBurney v. Wellmau 908 McCabe v. Burns 1204 McCabe, in re 897 MoCafferty v. Heritage 713, 1118 McCague v. Miller 427 McCahill v. Ass. Soc 795 McCall V. Butterworth 377 V. Gillespie 10(12 V. Jones 782 McCalla v. Wilburn 822 McCance v. R. R. 1087, 1146 McCandless v. Engle 1052 McCanless v. Reynolds 1157 McCann v. Atherton 466 V. McDonald 1194 V. State 118 McCarrol v. Alexander 1035 McCarron v. Cassidy 1031 753 TABLE OP CASES. McCart v. Frisby 986 McCartee v. Camel 1274, 1276, 1277 McCarthy v. Grace 357 McCarty v. Kitchenmann 1346 V. Leary 47 „. McCarty 1349, 1353 V. People 56 McCaskill u. Elliott 41, 1295 MoCaskle v. Amarine 72, 706, 708 McCaughey v. Smith 626 MoCauley v. Fulton 795 V. Harvey 799 i: State 115 McCausland v. Fleming 185, 191, 194, 248, 668, 670 V. Ralston 516 MoClangahan v. Hines 1058 McClay i-. Hedge 507 McCleau v. Hei-tzog 159 McClellan v. Reynolds 1061 McClelland v. Slingluff 833 I,. West 464, 529 MoClenahan v. Humes 980 McClendon v. Wells 1156 McClenkan v. McMillan 1136 McClernan v. Hall 936 McClintic v. Cory 1058 McClintock's App. 867 McClintook v. Whittemore 571 McCloskey v. MoCormiok 936 McClure v. Ins. Co. 1247 V. Jeffrey 929 V. Pursell 353 V. Williams 468 McClurg V. Vanzandt 568 MoCollum V. Cushing 690 V. Herbert 107 V. Seward 446 McComb V. Gilkey 977 „. R. R. 60, 80, 1173 o. Wright 868, 873, 1279, 1353 MoCombie v. Anton 177 McCombs V. McKennan 1026 V. R. R. 60, 80, 1173, 1180 McConnell v. Brayner 461 V, Brown 66 o. Hanlon 259 V. Huntingdon 466 V. Ins. Co. 1246 McCord V. Johnson 723 McCorkle u. Binns 714 V. Doby 1200 McCormick v. Anderson 509 V. Cheever 1015, 1026 V. Deaver 103 V. Elston 682 V. Evans 118 V. Fitzmorris 629 V. Fuller 1165 V. Gray 38 754 McCormick v. Huse 920, 936 c. McMurtrie 248 V. Mulvahill 521 V. Mulvill , 521 V. R. R. 522, 525, 1139 V. Robb 175 V. Sullivant 795 McCorquodale v. BeU 742, 754, 1090 McCotter v. Hooker 1173 McCoy V. R. R. 357 McCracken v. MeCrary 166 V. West 572, 1290 McCrary v. Caskey 977 V. Rash McCraw v. Ins. Co. McCrea v. Purmont McCreary v. Casey V. Hood (J. McCreary «. Turk McCreedy v. R. R. McCrum v. Corby McCuUooh V. Judd V. Norwood McCullom V. Seward McCullough V. Girard V. Wainwright McCully V. Clarke McCummons v. R. R. McCune v. MoCune V. McMichael MoCurdy v. Breathitt McCutchen v. McCutohen V. Rice McCutcheon v. Pigue McDade v. Meed McDaniel u. Baca V. Fox V. King v. State V. Webster MoDaniels v. Robinson McDeed v. McDeed McDermott v. Clary V. Hoffman 1077, 1079 873, 920, 1042, 1044 789 154 1026 72 360 416 1140 315 446 1015 946 359 360 1199 1148 1019 569 469 402 135 651 784 992 649, 560 518, 521 480 302 803 785, 836, 988, 1139, 1185 ^. McCormick 696, 726, 727 V. Mitchell 1199 V. R. R. 1175 V. U. S. Ins. Co. 1019 McDill V. Dunn 923 V. Gunn 1038, 1044 McDole V. MoDolo 787 McDonald v. Allen 177, 477 V. Christie 446 V. Edmonds 120 V. Ins. Co. 1172 V. Leewright 795 V. Matuey 764 TABLE OF CASES. McDonald u. McLeod 1031 McGinnis v. State 78, 160, 324 V. Rainor 782 McGinns v. Worden 473 a V. Savoy 47 McGintry et al. o. Reeves 1043 V. Simcox 800 a McGiven v. Fleming 873 V. Stewart 1026 McGlothlin v. Heiiry 474 V. Woodbury 475 a, 477 McGoldrich v. Traphagen 682 McDonnell v. Murray 149 McGowan v. Laughlin 726, 727 t . Pope 860 McGowen v. West 912 McDonough v. O'Niel 1264 V. Young 828 a, 832 V. Squire 1031 McGrann v. R. R. 1064 McDow V. Kabb 1157 McGrath v. Clark 626, 1150 McDowell V. Cooper 945 ... R. R. 1081 V. Delap 863 V. Seagrave 80 V. Goldsmith 979, 1167 McGregor v. Brown 436, 944 i;. Preston 418 II. Bugbee 73,77 V. Eissell 1166, 1205 V. Montgomery 130 McDuffie V. Magoon 1028 V. State 8 McElfresh v. Guard 887 V. Topham 729 McElmoyle v. Cohen 808 V. Wait 736 , 1138, 1182, MoElpatrick i'. Hicks 1163 1183, 1217 McElroy v. Buck 869, 872 MoGregory ;;. Prescott 362 u. Ludlam 1119, 1199 McGrews v. MoGrews 1302 V. Seery 873 McGruder v. State 563 McEwan v. Ortmau 1058 McGuire v. Bank 147 McEwen v. Bigelow 790 0. Grant 1346 u. Bulkley 115 V. Maloney 429 u. Limmer 803 o. McGowen 1035 McEwing V. James 977 o. People 398 McFadden v. EUmeder 1156 V. Sayward 120 0. Kingsbury 77 V. Stevens 901, 909, 956 0. Mitchell 529 MoHose V. Wheeler 661 V. Murdock 440 MoHugh 1-. Brown 1318 V. Wallace 1156 n. State 566 MoFadyen v. Harrington 1194 Mcllvaine v. Harris 1051 McFarland v. Pico 123 V. LegarS 923 „. E. R. 920, 942 Mclndoe v. Clark 466 McFarlane v. Cushman 781 Mclnroy v. Dyer 393 McFarlin v. State 544 Molntire v. McConn 512 McFate's App. 799 Mcintosh V. Lee 332, 335 McFerren v. Mont Alto Co. 466, 468 V. Saunders 1021 McGahey ;;. Alston 147 1315, 1317 Mclntyre v. Meldrim 471 McGargell v. Coal Co. 694 u. Park 545 MoGarr v. Lloyd 1313, 1325 u. Storey 763, 784 McGarrity v. Byington 644, 726 V. Ward 1052 McGarry v. People 483, 539 V. Young 559 McGaughey v. Woods 799 Mclver v. Moore 63 McGee v. Gnthry 736 McKaig V. Hebb 472 MoGehee v. Jones 469 McKain v. Love 602 MoGenness v. Adriatic Mills 1170, 1177 McKay v. Overton 436 McGill V. Ash 1077 u. Rutherford 883 V. McGill 976 V. Simpson 1014 V. Monette 823 McKean v. Massey 468 V. Rowand 423 McKee v. Bidwell 40 MoGilvray v. Avery 805 u. Boswell 1058 McGinity v. MoGinity 973 1033, 1035, V. Hamilton 1194 1037 V. Jones 1214 McGinley v. Ins. Co. 1169 V. McKee 135 McGinnie v. Com. 1254 V. Nelson 513 V. Cook 863 V. Phillips 992 u. Grant 566 V. White 139 V. Sawyer 94, 133 MoKeen v. Frost 755 430, 431 TABLE OF CASES. McKeen v. Gammon McKellar v. Peck McKeller v. Eowell McKellop V. Jaokman McKelvey v. Truby McKenan v. Rolt MoKenire v. Fraser McKenney v. Oordon V. Ehoads MoKenzie v. Crow V. Hesketh 1184 123 770 466 1143 490 199, 732, 733 100 47 122 1243 McKeone v. Barnes 708, 714, 715, 718 McKeown v. Harvey 264, 500 McKern v. Calvert 551 McKewn v. Barksdale 684 McKim V. Blake 1133, 1212 V. Doane 810 McKimm v. Riddle 810, 1278 McKiuley v. Irvine 726 V. Lamb 1009 ...McGregor 1205,1217 McKinney v. McConnel 175 V. Miller 1032 V. Neil 555 u. O'Connor 324 a. People 387 V. Reader 857, 859, 860 V. Slack 357 McKinnon v. Bliss 175, 338, 664 McKinster v. Baboock 1048, 1049, 1056 McKivitt V. Cone 525 McKnight v. Derlin 64 McKonkey v. Gaylord 708 McKowen v. McDonald 909 MoKown V. Hunter 482 McLain v. Com. 177 V. Smith 109, 1256 McLaren v. Birdsong 1290 V. Bk. 1058 McLaughlin v. McLaughlin 1165 McLauglin v. Cowley 567 V. Gilmore 593 McLean v. Clark 931, 1184 V. Hertzog 78 V. Houston 1045 V. Hunsicker 465 -•. Ins. Co. 920, 1017 (J. .Tagger 1216 o. State 491 V. Thorp 499 MoLeary v. Norment 451 McLees v. Felt 416 McLeiu V. Smith 109, 1256 MoLellau v. Cox 1199 V. Crofton 357, 1364 V. Longfellow 1165 V. Richardson 601, 603 MoLemore v. Nuckolls 760, 775, 837, 838, 1218 MoLendon, ex parte 490 MoLendon v. Hambliu 357 756 McLendon v. Shakleford 1081 McLennan v. Johnston 905 McLeod V. Ballard 559 I,. Ginther 259 McLeroy v. Duckworth 942 McLoughlin v. Russell 975 McLure v. Clarke 923 McMahan v. Leonard 1315, 1317 V. McGrady 723 V. Stewart 1044 McMahon v. Burehell 838, 1084 l: Davidson 359, 1319 V. Harrison 1284 t, Lennard 1315 V. Macy 761, 1031, 1032 McMasters v. Carothers 980 V. Ins. Co. 923, 1071 V. R. R. 961, 966 McMecken v. McMecken 452 McMichael v. McDermott 823 McMicken v. Com. 770, 833, 980 McMillan v. Bothold 142 V. Croft 490 V. Davis 347 V. Fish 1019 V. Graham 980 V. Lovejoy 96, 808 V. MoDill 1199 V. Parkell 962 McMillen v. Andrews ,600 MoMinn v. O'Connor 726 V. Owen 1058 V. Whelan 726, 1273 McMorine v. Storey 177 McMuUen v. Brown 115 i,. Mayo 1168 MoMullin V. Glass 1042 V. Sanders 663 MoMurphy v. Bell 834 McMurray o. Spicer 946 V. St. Louis 1029 McNab V. Stewart 469 McNaghton's case 452, 666 McNail V. Ziegler 431 McNair v. Com. 708, 714 V. Hunt 1352 V. Ragland 838, 1278 V. Toler 956 MoNally v. Meyer 404 MoNaughton v. Partridge 1241 a McNear v. Bailey 988 McNeeley v. Hunton 1190 V. Rucker 640 McNeil i>. Arnold 302, 051 V. Hill 1066 V. Perohard 94 MoNeilly i'. Patchin 1060 a MoNichol V. Essex Co. ' 335 McNichols V. 'Wilsou 115 MoNiool V. Johnson 468 MoNiel V. Holbrook 9 TABLE OP CASES. McNitt V. Turner 1302 Meden v. Tayler 1300 MoNorton v. Akers 1302 Medley v. Williams 192 MoNulty V. Prentice 1021 Medlock v. Brown 368 McOuart v. Cathcart 863 Medomak Bank v. Curtis 906, 1017, MoPherkin v. Jennings 1176, 1183 1019 McPherson v. Cox 883 Medway v. U. S. 713 1123 V. Foster 945 Mee V. Reid 386 V. Neuffer 685 Meed v. Parker 901 V. Rathbone 151, 155, 727 Meegau v. Boyle 734 MoPike V, AUmau 939, 942 Meehan v. Williams 248 MoQuade v. St. Louis 1016 Meek v. Holtou 1156 McQueen v. Fletcher 135 V. Spencer 147 V. Sandel 837 Meeker v. Meeker 1042 McQuesney v. Hiester 788 Meekins v. Smith 389 McRae v. Lilly 33 Meeks v. Vassault 771 V. Malloy 460 Megerle v. Ashe 758 u. Mattoou 797 Mehau v. State 368 V. Morrison 151, 515 Meighen v. Bank 961, 962 McRea v. Bank 1184 Meincke v. Fall 869 McReynolds v. Longenberger 129, 732 Meixsell v. Williamson 412 V. MoCord 140 Meloher v. Chase 997 1002 MoSherry v. Brooks 1058 V. Flanders 729 McSweeny v. McMillan 1165 Meldrum v. Clark 977 McTaggart v. Thompson 1011 Melon V. Andrews ■ 1139 McTucker v. Taggart 1021 Meleudy v, Spaulding 451 MoTyer v. Steele 1070 McVean v. Scott 626 MoVey v. Blair 558 McVicker v. Beedy 803, 805 MoWilliam v. Lawless 872 Meacham v. Pell 517 Mead v. Boston 776 V. Conroe 1249 V. Husted 31, 1246 .,. Ins. Co. 1021 !/. Parker 1227 o. Robinson 639 V. Smith 601 V. Steger 1046 Meade v. Black 838 o. McDowell 1212 Meadows v. Cozart 977, 1312 Meads v. Lansingh 1056 Mealing v. Pace 510 Means v. De la Vergue 942 c. Hicks 810 V. Means 689 Mears v. Graham 1243, 1258 i: Waples 965 Meason v. Kaine 903, 903 a Meath v. Winchester 194, 195, 196, 583, 703, 732, 1156 Meehan v. Forrester 1031 Mechanics' Bank v. Bank of Colum- bia 1170 «. Merchants' Bk. 1249 V. Nat. Bk. 702 V. Smith 645 V. Union Bk. 1315 Mechanics ». Wright 1363 Meohelen v. Wallace 863, 902 Melhuish v. Collier 27, 39, 549, 550 Melia v. Simmons 810 Melledge v. Boston Iron Co. 1061 Mellish V. Robertson 1029 Mellon V. Campbell 1140 Mellor V. Utioa 509 Melms V. Wirdekoff 1060, 1060 a Melton V. Lambert 863 Melville's case 321 Melvin c/. Fellows 944 i,. Looks 1349, 1352 V. Lyons 99 V. Melvin 608 V. Whiting 177, 838 Memphis v. R. R. 1175 Memphis, etc. Packet Co. v. Mc- Cool 563 Memphis, etc. R. R. o. Maples 683 Mence v. Menoe 616 Mendenhall v. Davis 1059 V. Gately 315 Mendum v. Com. 437 Menges v. Oyster 1240 Menk v. Steinfort 431 Mensies v, Lightfoot 957 Menton v. Adams 1049 Mentz V. Ins. Co. 1172 Mercer v. Cheese 1284 «. Mackin 138 u. Patterson 427, 429 V. Vose 446 V. Wise 1151 V. Woodgate 1347 .-. Wright ' 412 Merchant Co., in re 377 Merchant's Will 718 757 TABLE OF CASES. Merchants' Bk. u. Glendon 1316 a u. Griswold 1173 V. Marine Bk. 1184 V. Rawls 661, 1131 V. Schnlenberg 786 . Butler 1315 Monkton w. Att.-Gen. 201, 205, 208, 210, 214, 216, 218, 219, 267 Monon. Nat. Bk. v. Jacobus 466, 468 Monro v. Pilkiiigton 801 Monroe v. Latteu 609 V. Napier 477 V. Twistletoa 429 Monsel u, Lindsay 756 TABLE OP CASES. Monson v. Drakelay 1060 Montacute«. Maxwell 882, 907, 910, 911 Montague v. Dudman 751, 754 V. Perkins 632 Montefiore v. Guedalla 974 Montefiori v. Montefiori 1145 Montgomery v. Bevans 1274 V. Dorion 729 V. Datton 584 V. Gilmer 444 V. Hunt 549 V. Merrill 824 V. Pickering 479, 576, 584, 931 V. Plank Road 339 V. Road 764 V. Robinson 821 V. Sarnory 816 V. Scott 510 o. Shockey 1021 V. Simpson 466 Montgomery Plank Road v. Webb 1284 Montgomery R. R. v. Moore 357 Monumoi Beacb v. Rogers 198, 645 Moody V. Com. 130 V. Davis 614 V. McCown * 953, 1030 V. Moody 63 V. Roberts 678 V. Rowell 500, 501, 527, 528, 529, 709, 714, 718, 719, 720 V. Sabiu 268 V. Smith 868 V. State 290 t, Surridge 961 a Mooks V. State 525 Moores v. Bunker 201, 216, 701, 1273 Moog V. Randolph 290 Moon V. Crowder 709 i;. Story 1132 Mooney v. Kennett 293 Moons V. De Bernales 810, 1278 Moor V. Roberts 490 Moore v. Bank 123, 1146 V. Beattie 147 V. Bray 577 V. Butler 1210 V. Campbell 906 v. Clymer 697 V. Davidson 1027 c. Davis 192 V. Des Arts 1243 V. Dunn 1137 u. Edwards 800 a V. Gwynn 800, 302 V. Hamilton 1102 V. Harland 472 V. Hart 872 V. Harvey 22 o. Hawks 617, 1103 V. Hersbay 1060 5 Moore v. Hitcboock 1088 V. Jones 417, 551 V. King 886 V. Livingston 140 V. Mecham 518, 521 V. Moore 180, 516, 697, 698, 887, 1035, 1124 V, Mountcastle 872 V. Munu 1019 V. Neil 1302 V. Parker 359 V. People 529 V. Uuirk 697 V. R. R. 265, 436, 549, 815 I). Rush 931 V. Small 909 V. Smith 1137, 1138, 1360, 1362 V. State 436 <;. Taylor 466 u. Tillotson 142 V. U. S. 713, 961 V. Voss 826 V. Wade 1031 V. Whitehouse 139 V. Wingate 427, 431, 1030 Morehouse v. Slatbews 510 V. Potter 115 Moorman v. Collier 1029 Moots V. State 518 Moppin V. jEtna Axle, etc. 21 Moran v. Lezotte 189 V. Mansur 779, 786 V. Prather 920, 958, 961, 972 Mordeoal v. Beal 61, 1266 More V. Wortbingtou 123 Moreau v. Branham 1318 Morehouse v. Matthews 450 Morein v. Solomons 505 Moreland v. Atchison 1241 a V. Lawrence 811 V. Mitchell County 437, 439, 444, 1295 Morewood v. Wood 188 Morey v. Morey 808 Morford v. Peck 53 Morgan v. Bliss 781 V. Boys 175 V. Burrows 998 V. Chetwynd 1257 V. Coachman 1083, 1092 V. Curtenius 99, 740 V. Dodge 810 V. Evans 1136 V. Griffith 1026, 1027 V. Hubbard 1196 V. Jones 160 V. Livingston 975 V. Morgan 726 V. Morse 357 a. Neville 1303 V. Nioholl 177 761 TABLE OF CASES. Morgan v. Patrick .!). Patton V. People u. Pike K. Purnell V. Roberts V. Rowlands u. Shinn V. Sims V. Spangler V. State V. Sykes V. Thorne u. U. S. v. Van Ingen V. Whitmore 725 775 76 873 201, 205, 213 420 786 1031, 1032 262 944 1302 870 767, 1208 1240 123 977 Morgan Co. Bk. v. People 122 Moriarty v. R. R. 1085, 1207, 1265 Morin v. R. R. 816 Morissey v. Ingham 268 V. People 439 Moritz V. Brough 1011 Morland v. Isaac 1133, 1140 Morley v. Finney 467 V. Gaz. Co. 346 Morley's case 178 Morning v. McBride 1156 Mornington v. Mornington 590 Moroney's case 597 Morong v. O'Laughlin 466 Morphett v. Jones 909 Morrell v. Cawley 1124, 1216 V. Dixfield 1209 V. Fisher 1005 V. Martin 813 V. Wootten 756 Morrice u. Swaby 755, 756 Morrill v. Colehour 864 V. Cone 1353 V. Cooper 909, 910 V. Foster 141, 208, 223, 266, 644 V. Gelston 120 V. Maokman 854 V. Otis 61 V. Robinson 920 V. Tegarden 452 u.Titeomb 1101 Morris v. Bowen 967 V. Bowman 629 V. Briggs 682 V. Callahan 194 V. Davidson 287 V. Davies 1297, 1298 V. East Haven 436, 513 V. Edwards 338, 654, 956 V. Gentry 798 V. Glynn 864 V. Grubb 466 i>. Halbert 797, 985 V. Hanueu 154 V. Harmer 338, 664 762 is V. Harris 429 u. Hauser 154 o. Hazelwood 47 V. Hulbert 982 V. Hurst 620, 1134 V. Keyes 66, 111 o. Lennard 401 V. Lotan 1111 V. McMorris 699 .;. Miller 77 v. Osterhaut 879 V. Parr 490 V. Patchin 100 V. Ryerson 1046 V. State 988 V. Stokes 514 u. Swaney 139 V. Tillson 1044 V. Vanderen 90, 740 u. Wadsworth 1094 V. Whitmore 1019 V. Wordsworth 740 is & E. R. R. V. State 360 Morris's Lessee v. Vanderen 210 Morrison v. Arnold 184 V. Chapin 72, 823 V. Emsley 208 V. Funk 1360 V. Gen. St. Nav. Co. 331 o. King 1318 o. Lennard 406, 407 V. Lovejoy 930 V. Morrison 1021, 1067 „. Myers 68, 946 V. R. R. 1247 V. Taylor 939 V. Welty 141 Morrissey v. Ferry Co 655, 1273 u. Kiusey 878 V. People 439 Morrow v. Com. 162 u. Parkman 420 u. Saunders 742, 74S V. Whitney 980 a V. Willard 1339 Morse v. Cougdou 678 I,-. Connecticut River R. R. 1177 V. Copeland 8tl3 V. Crawford 515 i,. Elms 822 V. Emery 185 V. Hewett 3-24 V. Hill 764 V. Low 466 V. McCall 1318 V. Nat. Bk. 879 V. Presby 795 V. Royal 1204 V. R. R. 38, 40, 1177, 1182 V. Shattuok 1042, 1046 V. State 610 TABLE OF CASES. Morse v. Thorsell 175 Moulon V. Ins. Co. 1172 V. Toppan 768 Moulton V. Aldrich 21 Morss V. Morss 600 V. Bowker 1184 V. Palmer 569 u. Mason 156,468 j;. Salisbury 1102 V. McOweu 444 Morthrop v. Wright 732 Mountain v. Fisher 422 Mortimer v. Cornwell 868 Mountclair v. Ramsdell 290 V. Craddook 1264 Mountford v. Harper 1363 V. McCallen 82, 90, 114, Mountuoy v. Collier 237, 1156 1170, 1173 1174, 1180 Mountstephen v. Lakeman 879, 880 «. Mortimer 1220 Mourning v. Davis 379 V. Shortall 1019, 1022 Movan v. Hays 1033 MortoB V. Barrett 120, 223 Movers v. Bunteen 216 (.. Comptroller 290 Mower's Appeal 470, 476 V. Copeland 368 Mowry v. Chase 288, 442 V. Dean 668, 872 Moye V. Herndon 623, 719 V, Deane 901 V. State 1136 V. Smith 1053 Moyer's Appeal 1214 u. Sweetzer 781 Mnckleroy v. Bethany 629 u. Tibbett 875 Mudd V. Suckermore 707, 713 V. White 60 Mudgett V. Howell 662 Mosby V. Wall 1019, 1021 Mueller v. Henning 822 Moseley v. Davies 186, 187 V. Rebham 473, 1198, 1199 o. Eakin 429, 608 Muir V. Demaree 626 V. Hanford 1058 V. Glasgow Bank 1249 V. Mastin 282 Mulcrone v. Lumber Co. 879 Mosely v. Hanford 1058 Muldowney v. R. R. 361, 436, 437, a. Tuthill 807 444, 452 Moses V. Bradley 776 Muldraugh v. Maupin 436 V. Cromwell 601 Mulford V. Stalzenbaok 982 V, Dunham 1156 Mulhado v. R. R. 346 V. Maoferlan 788 Mulhall V. Keenan 239, 1127 a. Morse 129 MulhoUand v. EUiston 1162 u. State 417, 545 Mulhollin v. State 505 Moshier v. Meek 903 a Mull V. Martin 476 Mosley V. Ins. Co. 336 Mullaly V. Walsh 1279 Mosner v. Raulaiu 466 Mullan V. Steamship Co. 1173 Moss V. Anderson 701 739 a, 1273 Mullen V. Ins. Co. 1184 V. Anglo-Egypt. Man. Co. 785 V. Morris 289 V. Culver 909 u. Pryor 1284 V. Dearing 1156 Mullen, in re 888 u. Grreen 1015 Mullenback v. Batz 142 0. McCullough 761, 771 Muller V. Hoyt 152 ■u, Oakley 761 Mullett V. Hunt 382 V. R. R. 48 MuUiken v. Grreer 1156 Mossam v. Ivy 346, 664 Mullis V. Cavins 741 Mosser v. Mosser 253 Mnlvy V. Ins. Co. 436, 507 Mossman v. Forest 317, 339 Mumford v. Bowne 319 Mossop V. Eadon 149 V. Gething 940 Mostyn v. Fabrigas 314 Mumm V. Owens 466, 468, 475 a, V. Mostyn 1008 477 Motley V. Motley 1064 Muncey v. Dennis 958 Mott V. Doughty 726, 729 Munde v. Larabie 1014 V. Hicks 1061 Mundbink v. R. R. 1090 V. Richtmyer 920 Mundorf v. Wiokersham 171 V. R. R. 444 Muiidy V. Mundy 896 Mouchet V. Cason 629 Munn V. Baldwin 323 Mouflet V. Cole 282, 335 V. Godbold 74 Moul V. Hartman 185 Munns v. Dupont 739 Mould V. Williams 813 Munroe v. Behrens 1021 Moulin V. Ins. Co. 795 V. Bordier 763 1061 TABLE OF CASES. Munroe v. Douglass 303 u. Eastmann 629, 977 V. Gates 1313, 1349, 1353 V. Guilleaume 309 V. Perkins 1026 V. Pilkington 801 V. Skelton 1019 Munson v. Atwood 1246 V. Hastings 670 V. Nichols 931 V. Wiokwire 1194 Mureliie v. Black 1346 Murchison v. McLeod 152 Murdoch v. Hunter 726, 727 Murdock v. Finney 1133 Murietta v. Wolfhagen 701, 1273 Murluzzi V. Gleason 541 Murly V. McDermott 1340 Murphy v. Boese 869 o. Brydges 528 ■u. Butler 1156 V. Chase 1319 V. Deane 361 V. Dunning 906, 1017, 1021 u. Georgia 84 V. Granger 814 ■i;. Hubert 903, 903 a, 1217 V. Lloyd 210 V. May 1174 X,. Milner 201 V. Orr 1284 u. People 415 o. R. R. 268, 361, 439 V. Stanly 532 V. Sullivan 883 V. Williamson 799 Murrah v. Bank 1044 ■;. State 982 Murray v. Chase 1175, 1184, 1187 V. Clarendon 840 V. Coue 1101 V. Coster 1090 u. Cunningham 519 u. Dake 1019 V. East India Co. 694 V. Ellis 448 V. Elston 377 V. Gardner 1301 f. Gibson 976 V. Gregory 1091, 1098 0. Harway 906, 1017 V. Hatch 961, 1014 <•. King 1017 V. Lardner 1060 6 V. Marsh 97 V. Milner 84, 202 V. Oliver 1163 V. Parker 1019, 1022 V. R. R. 466 V. Smith 1044 V. Spenoe 185 764 Murray v. Stair 930 V. Walker 1032 V. Walter 756 Murrell v. Whiting 362 Murrill v. Smith 758 Muscoigne v. Radd 258 Musgrave v. Emerson 226, 229 Mushot V. Moore 838, 1119 Musick V. Barney 115 Mnsselman v. R. R. 1069 u. Stoner 901, 906, 1019, 1025, 1027, 1067 Mussen v. Price 1363 Musser v. Johnson 1061 Mussey v. Beecher 1183 V. Holt 861 Mutual Ben. Co. o. Ruse 1065 V. Tisdale 816 Mutual Benefit Life Ins. Co. v. Tis- dale 176, 810, 811, 923 Mut. Ins. Co. o. Cannon 1170 V. Newton 1103 V. Wager 358 Mutual Loan Fund Assoc, v. Lud- low 952, 1062 Myatt V. Walker 1252 Myer v. Griffin 678 w. Peck 1070 Myers v. Anderson 183 <^. Byerly 909 u. Clark 828 V. D'Meza 786 V. Kinzie 1166 X,. Ladd 944 V. Morse ' 879 V. Munson 619, 1103 V. Nell 626 V. Peeks 1047, 1049 V. Perigal 864 V. Sari 961, 961 o V. Smith 63 V. Toscan 713, 714 V. Walker 961 Mylar v. Hughes 799 Myrick v. Dame 920 Mytton V. Thornbury 187 N. Nadee, The 357 Nadiu V. Bassett 610 Nagle V. R. R. 1255 Naglee v. IngersoU 1040 Nalle V. Gates 1196 Nalley v. Carpet Co. 40 Napper v. Sanders 1274 Napton V. Leighton 808 Narragansett Bank v. Silk Co. 153 Nash V. Armstrong 1018 V. Gibson 476, 1158 TABLE OF CASES. Nash I'. Hall 353 Neil V. Neil 886 V. Hoxie 259 u. Trustees 1014 V. Hunt 512, 781 Neile v . Jakle 1136 ,'. Town 951 Neilson v. Ins. Co. 553 Nashville E. R. v. Messino 1174 Neise v . Ins. Co. 288 V. U. S. 783 Nelson V. Blakely 1316 a Nason v. Grant 861 V. Bridport 306, 308 V. Jordan 90 tf. Davis 933 1028 V. Woodward 21 V. Fotterall 123 Nass r. Van Swearlngen 537 1'. Iverson 655 1168 Nat. Bank v. Ins. Co. 1021 V. Johnson 718 V. Nat. Bank 595 V. Moon 645 V. Ocean Bank 40 V. People 1315 1319 t-. Perry 1060 u. R. R. 967 V. Sprague 769 V. State 491 Natchbold v. Porter 860 V. Stocker 1151 Nat. Dock Co. v. R. R. 1316 a V. Weeks 1064 Nat. Ex. Co. V. Drew 1170 o. Wood 444 Nat. Ins. Co. v. Ldtsmis 873 Nemethy v. Naylor 779 Nat. Life Ins. Co. v. Allen 950 V. Nemethy 800 a Nat. Provincial Bk., ex parte 1019 Nenhy r. Caldwell 822 Nat. Rubber Co. v. Sweet 21 Nepean v. Doe d. Knight 1276 Nat. Trust Co. v. Gleason 397 Nesbit in re 1275 Nat. Un. Bk. <.. Marsh 708 Nesbiti V. Berridge 840 Nations v. Johnson 775 u. Lockman 1362 Nan V. Jackman 910 Naumberg v. Young 1050 Nave V. Wilson 788 Nazro r. Fuller 624 Neaderhouser v. State 339 Near.s case 454 Neal V. Bellamy 879 . Howard 39 V. Jack 688 V. Moor 589 V. Shaffer 790, 791, 808 V. Shedden 801 V. The Adams 511, 515 Pattee v. McCrillis 123 Patten v. Casey 1049 ■u. Farmers' F. Ins Co. 1172 V. Newell 1058 V. Pearson 1061 V. People 551, 559 Patterson v. Armstrong 466 V. Black 1277 V. Britt 833 r.Xlyde 363 V. Colebrook 509 V. Doe 61 V. Flanagan 262 V. Gaines 85 V, Garlock 47 V. Gile 697 7;. Ins. Co. 1014 V. Linder 152 V. McCausland 332, 335 V. McNeeley 626 V. R. R. 361, 1174 V. State 400 V. Tucker 730 I'. Winn 151 Patteshell v. Turford 1330 Pattison v. Armstrong 466, 470, 471 Pattison's App. 867 Patton I'. Alexander 1050 f. Ash 1362, 1363 a. Gee 1163 d V. Goldsborough 944 V. Hamilton 529 u. Minesinger 1179 u. Ohio 1192 V. Philadelpliia 83 V. R. R. 48 V. V. S. 436 t. Wilson 429 Pattrick v. Grant 939 Paty V. Martin 441 772 Paul V. Berry V. Chouteau V. Durborow V. Meek V. Owing V. Paul V. Rider V. Roy V. Stackhouse Paulette v. Brown Paulin V. Howser Paull V. Oliphant V. Padelford V. Simpson Paulton V. Paulton Pavey v. Pavey V. Wintrode Pawashiok, The Pawelski v. Hargreaves Pawling V. Bird Faxon's Appeal Paxton V. Boyce V. Douglass V. Popham V. Price V. Steckel Payne t). Craft V. Elyes V. Gray V. Hodge u. Hughes o. Lowell V. McKinney V. Payne V. Rogers V. R. R. V. Solomon V. Treadwell Paynes v. Coles Paysant r. Ware Payson v. Everett V. Lamson Pea V. Pea Peabody v. Brown V. Hewett V. Speyers V. Tarbell Peaceable v. Keep V. Watson Peaoher v. Strauss Peacock v. Bell u. Harris V. Monk V. Stott Peacock's Est. Peake v. Stout Pearce v. Farr (,. Langflt V. Mix V. Olney t. Whale 1101, 237. 261, 1044, 259 1035 142 74 946 562 1060 a 800 869 412 1090 986 334 862 138 714 467 300, 309 869 802 833 366 533 931 210 604 1167 469 464 522 977 40 740 413 1207 1090 1246 338 819 939, 946 674 1021, 1103 430 963 1157, 1168 873, 901 1035 423 1156, 1157 956 324 1089, 1163 1046, 1048 466 974 608 557 339 1157 809 1315 TABLE OP CASES. Pearoy v. Dicker 696 Peebles v. Peebles 471 Pearl v. Allen 292 Peeblet v. Horton 1019 V. Hams 800 Peek V. N. Staffords 873 V. Wellman 1112 Peel, in re 936, 993 Pearsall v. McCartney 838 Peel V. Seminary 808 Pearse v. Coaker 779 Peeples v. Smith 72 V. Pearse 570, 583 Peers v. Carter 830 Pearson v. Forsyth. 263 V. Davis 920, 936 V. Howey 83 Pegg V. Warford 392 V. Le Maitre 27, 32 Peiflfer v. Lytle 423 V. Pearson 210, 888 Peirce ;;. Pendar 1323 V. Shaw 335 Peisch V. Dickson 939 956, 961a V. Turner 490 Pejobscot V. Ransom 1353, 1354 u. Wightmau 739 Pelamourges v. Clark 436 Pearsons, in re 888 Pelile V. Stoddart 7.54 Pease v. Allis 723 Pell V. Ball 1280 ti. Jenkins 226 Pelletreau v., Jackson 727 V. Pease 951, 1061 Pells V. Welquish 703, 1313 V. Peck 289 Pelton V. Mott 775 V. Phelps 1199, 1199 a V. Platner 1308 V. Shippen 53 Pelzer v. Cranston 681 11. Smith 64, 988 Pember v. Congdon 466 V. Whitton 800 V. Mathers 487 Peaslee v. Gee 945 Pembroke v. AUenstown 525 V. Robbins 402 Pembroke, in re 890 Peat's case 426 Pemigewassett Bank v. Rogers 1175 Peohner v. Ins. Co. 930, 1017 Penarth R. R. v. Cardiff Water- Peck V. Beokwith 1060 works 753 V. Callaghan 714 Pence v. Langdon 366 V. Chapman 357 Pendergrass v. Man. Co. 781 V. Clark 111, 115 Penderry v. Ins. Co. 60 V. Detroit 1175 Pendexter v. Carleton 63 V. Farrington 115 Pendleton v. Amy 1151 V. Houghtaling 357 V. Com. 160 V. Hunter 357 V. Balton 786 V. Laud 106 V. Empire Co. 549, 555 V. Lane 519, 525 V. Rooth 1169 V. Lusk 1194 Pendock v. Mackinder 397 - V. McLean 466 Pendrell v. Pendrell 215 V. Minot 1133 Penley v. Weishart 1064 V. Parcher 557, 1170 Penn v. Edwards 1336, 1362 V. Peck 531 B. Oglesby 475 a, 1163 i>. Richmond 505 V. ToUison 807 0. Ritchey 551, 1170 Pennebacker v. Leary 864 V. Torke 63 Pennefather v. Pennefather 1277 V. Valentine 141 Pennel v. Wayaut 118 V. Vandenberg 1049 Pennell v. Meyer 828 a, 1103, 1105 V. Vandermark 872 Penney v. Fellows 1035 1). Von Zeller 684 V. Goode 756 V. Ward 1217 Penniman v. Hartshorn 873 Peck, in re 1276 Penniman's Will 897 Pecker v. Hoit 1088 Pennington v. Gibson 287 Peckham v. Barker 909 V. Yell 1226 V. Potter 1163 a Pennoyer v. David 1196 Pedan v. Popkins 1303 V. Neff 803, 808, 814, 818 Peddicord v. Hill 766 Penns. Canal Co. v. Belts 920 Pedicaris v. Road Co. 294 Penns. Co. v. Prance 339 Pedler v. Paige 728 Penns. Ins. Co. o. Smith 1064, 1365 Pedley v. Dodds 1005 V. Wiler 606 0. Wellesley 428 Penns. R. R. v. Books 1174 1180, 1182 Peebles v. Patapso Co. 815 V. Burn ell 773 446 TABLE OF CASES. Penns. R. R. v. Conlan 413 People V. Clark 436 V. Fortney 549 V. Cock 1315 b. Henderson 40, 509, )i. Commissioners 290 513 V. Cook 120 V. Hickman 712 V, Cotta 516 V. Pennock 815 V. Cox 552 K. Plank Road 1170, 1180 V. Cummins 541, 567 V. Shay 932 ».. Cunningham 1295 V. Stoelke 38 V. Davis 261 262 565, 569 V. Stranahau 43 V. De la Guerra 326 V. Weber 1255 V. Denison 643, 740 Pennsylvania, The 290 V. Dennis 132 Penny v. Brink 380 V. Devine 177, 561 555, 559 V. Wattg 562 V. Devlin 290 Pennypaoker v. Urnberger 695 a V. De Wolf 290 Penny Pot Landing v. Phila. 669 V. Diaz 177 Pennywhit v. Foote 795 803, 807 v. Donovan 531 Pennywit v. Kellogg 99 114, 807 V. Doyell 570 Penobscot Co. v. Weeks 795 V. Duhring 600 Penobscot R. R. v. Bartlett 311 V. Dyckman 377 V. Weeks 795 V. Eastwood 451 511, 512 Penrose v. Griffith 1040, 1041, 1156 V. Ehring 265 V. Trelawney 1352 V. Elyea 518 Pentriguinea Coal Co., in re 883 V. Fair 49 Pentz V. Stanton 951. 1061 V. Farrell 30, 482 People V. Abbott 563 V. Feilen 1280 V. Ah Fat 569 V. Fernandez 434 V. Ah Wee 174 1312 Potier V. Barclay 83, 152 Pott V. Todhunter 1046 Potteiger v. Huyett 1290 Potter V. Adams 811 V. Bank 466, 469, 476 V. Bissell 502, 503 u. Chamberlain 431 c. Everett 1019, 1046 V. Hopkins 1015 V. Inhabitants of Ware 420 V. Marsh 431 V. McDowell 1156 V. Menasha 464 «. Potter 1021 •J. Rankin 380 V. Sewall 1029 V. Titcomb 1360 V. Tyler 828, 833, 834 V. Ware 420 V. Webb . 47, 811 Potts V. Durant 197 V, Everhart 262, 1102 0. House 451 V. Mayer 475 a, 477 Poulet V. Johnson 141, 151 Poultney v. Ross 678, 685 Pound V. Wilson 549 Povall, ex parte 98 Povey, R. v. 307 Powell V. Adams 689 V. Biddle 998 779 TABLE OP OASES. Powell V. Bradbury 743 V. Dillon 870 0. Divett 622, 626, 627 ,,. Edmunds 922 V. Hendricks 726 •,.. Hodgetts 1204 V. JesSopp 864 V. Milburn 356 V. Olds 259 u. Powell 460 c. Rich 866 V. State 397, 451, 491 V. Thomas 1061 V. Waters 178 Powelton Coal Co. v. McSlialn 928, 931 Power V. Frick 714 V. Kent 1188 V. Rankey 879 V. Whitmore 963 Powers V. Bank 775 V. Butler 798 V. ClarkSon 866 V. Elmendorff 742, 746 o. Frick 719 V. Inst, for Savings 949 V. Leach 559 V. McFerran 727, 729 V. Mitchell 441 V. Prov. Inst. 926, 937 y. Russell 629 V. State 177, 551, 561 Pralus V. Pacific Co. 640 Prater v. Frazier 77 V. Pritchard 490 Prather v. Johnson 120 o. Palmer 1285 V. Pritchard 523 V. Ross , 961 Pratt V. Andrews 47, 51, 55, 1245 ('. Battles 115 c.. Delavan 427, 429 V. Eby 1352 v. El kins 469 V. Jones 764, 823 V. King 100 V. Lamson 357 V. Langdon 357, 935 <;. McCullough 889, 1316 t>. Mining Co. 950 V. Patterson 177, 178, 476, 477 11. Richard's 21 V. White 684 Preble v. Baldwin 1042 V. Portage 822 Prell V. McDonald 291, 293 Prentiss v. Holbrook 826 I'. Roberts 569 V. Russ 931 u. Webster 377 Presbrey v. Old Colony Railroad 715 780 Presbytery of Auohterarder d. Kin- noul 411 Preschbaker v. Feamau 1031 Presoott V. Canal 290 V. Fisher 106 V. Hayes 226 V. Ward 528 Presoott Bk. v. Caverly 1058, 1059 Preslar v. Stallworth 147, 823 Pressly v. Hunter 977 Preston v. Carr 577, 583, 593, 594 V. fiould 1059 0. Harvey 758 V. Jefferson 64 V. Mann 1143 V. Merceau 920 V. Peeke 986, 988 V. Robinson 116 V. Wright 1302 Prestwiok v. Poley 1186 Prettyman v. Walston 142 Prevost V. Grratz 357 Prew V. Donahue 620 Prewett v. Goopwood 1199 V. Laud 1213 Price V. Allen 936, 1014 a. Bank 1165 i\ Brown 1035 t,. Dewhurst 803 V. Dyer 906, 1017, 1019, 1031 V. Earl of Torrington 238, 242, 726 V. Emerson 828 o. Harrison 742, 743, 744 V. Hickok 796, 803 V. HoUis 1190 V. Joyner 429 V. Karnes 1031 V. Littlewood 639 V. McGee 726 V. Page 339 V. Plainfield 1165 V. Powell 357, 364, 444, 894, 1173 V. Price 896, 1284 V. Ramsay 1140 V. Reeves 1019 0. Richardson 869 V. R. R. 1174, 1175, 1180 V. Tallman 1265 i\ Thornton 1174, 1180 „. Torrington 238, 242, 726 V. Ward 795 Prichard v. Powell 187, 188 Pride v. Lunt 1050 Prideaux v. Mineral Point 259 Priest V. State 395 V. Wheeler 1017, 1019 Priestley v. Fernie 760 Prime v. Eastwood 33 Primra v. Stewart 208, 1274 Primmer v, Claybaugh 431 TABLE OE CASES. Prince v. Blackburn 726 Pryor v. Moore 98 V. Prince 414, 1077, 1220 V. Pryor 889 V. Samo 572, 1108 Puckett V. Pope 808 (.: Smith 678 V. State 1276 V. Swett 620, 687 Pugh V. Cheseldine 868 Pringle v. Dupn 1052, 1313 V. Good 909 I'. Leverick 1103 V. McCarty 32 i;. Phillips 682 V. Pugh 324 V. Pringle 422, 1165 V. Robinson 992 v. Wadsworth 808 Pullen V. Gledden 47, 486 Prinsep & E. India Co. a . Dyce V. Glidden 54, 2.'j3 Sombre 1253, 1254 V. Hutchinson 689, 723 Printup V. Mitchell 259, 512, 909, 1077 Pulley V. Hilton 639 Printz V. Cheney 533 Pulliam V. Pensoneau 599 0. People 448 Pullman v. Upton 662 Prior V. Williams 1019 Pulsford V. Richards 931, 1145 Pristwick v. Poley 1186 Purcell V. Burns 946 Pritchard v. Bagshawe 1091, 1190 ■V. McNamara 108, 776 V. Brown 1142 V, Miner 909, 910 V. Draper 1196 Purdy V. Com'rs 290 V. Hicks 996 V. People 290 V. Hitchcock 770, 823 Purinton v. R. R. 921 V. McOwen 686 Purkiss V. Benson 262, 1102 V. Walker 1153, 1315 Purmort v. McCrea 1044 Prltchett V. Clark 802 Purnell v. Purnell 491 V. Munroe 490 Purner v. Piercy 866, 867 V. Smart 743 Pusey V. Gardner 903 Pritt V. Fairclongh 240 241, 1243, u. Wright 353 1330 Putnam v. Bond 942, 945 Prohst V. Delamater 48 V. Clark 622 Proctor V. Bigelow 205 V. Fisher 1157 1-. Cole 781 V. Purnam 1070 tj. Gilson 1050 u. Goodall 60, 73, 685 V. Hartigan 937 V. Ins. Co. 1014 V. Houghtaling 48 u. Sullivan 1170 V. Jones 875 Putney v. Cutter 693 V, Lainson 178 Pye V. Butterfleld 490 V. Terrill 487 Pyer v. Carter 1346 V. Tows 1183 Pyle w. Oustall 431, 460, 466, 473 5, Proprietary v. Ralston 1100 •478 Prosser v. Wagner 816 Pym V. Campbell 927, 1058 . Turner 854, 855 r. Mather 902 Rawlinson v. Clarke 1018 V. Newton 528 u. Oriel 772 V. Rand 786 Eawls V. Ins. Co. 436, 507 Randall v. Kehlor 967, 968 V. State 782 ti. Lynch 725 Rawson v. Adams 1125 V. McLaughlin 1346 V. Bell 909 V. Morgan 882, 1034 V. Haigh 259, 261 V. Rich 860 I). Kniglit 476 V. School Dist. 779 V. Lyon 1028 . V. Smith 965 Rawstone v. Gandell 1202, 1207 <;. Tel. Co. 1174 Ray V. Bell 545, 558, 566, 1082, 1088 V. Turner 1015 i;. Castle 246 •■. Van Vetchen 693 V. Clemens 823 Randegger v. Ehrhardt 1165, 1166 V. Donnell 417 Randel v. Ely 1140 I.. Hegeman 779 786 TABLE OF CASES. Ray V. Porter V. Rowley V. State V. Townsend Ray burn v. El rod V. Lumber Co. Raymond v, Coffey V. R. R. 0. Raymond 123 1303 610 980 661 730 189 606 1014, 1050, 1051 V. Ross 789 V. Sellick 1026 V. Wheeler 1112 Rayne v. Taylor 1140 Rayner v. Ritson 594, 742, 743 Raynes v. Bennett 21, 427, 431, 478, 1292 Raynham v. Canton- 98 Raynor v. Lyons 1032 V. Norton 516 V. Wilson 861 Raysdale v, Gosset 1058 Rea V. Missouri 481, 606, 1136 V. Trotter 417 V. Tucker 429 Read v. Barker 444 V. Edwards 1296 V. Gamble 78, 159 V. Goodyear 1332 i>. Passer 84 V. Staton 135 u. Sutton 826 Reader v. Kinghara 880 Reading v. Mullen . 115 Reading Ins. Co.'s App. 84 Readway v. Conway 40, 1081 Ready v. Highland Mary 1180 u. Scott 1302 Reagan v. Grim 1199 a Real, in re 63, 567, 823 Real V. People 65, 451, 537, 588, 541, 544, 567 Reamer v. Nesmith 942 Rearden v. Minter 736 Rearich v. Swinehart 1019 Reath v. DriscoU 1350 Reaume v. Chambers 732 Re Bahia & Francisco Ry. Co. v. Tritten 1147 Reber v. Wright 803 Rebstock V. Rebstock 801 Rector v. Rector 153 Reddin v. Gates 720 Redding v. McCnbbin 185 V. Wilks 882 Redford v. Birley 254 V. Peggy 708, 714 , Redgrave v. Redgrave 83, 424, 1297 Redlich j;. Bauerlee 682 Redmans. Gery 237 V. Gould 97 lan V. Green 141 V. Redman 468, 475 a V. Batohelder 1272 V. Brookman 1348, 1349 V. Decker 21 c. Deere 62 V. Dick 265, 1173, 1181 V. Dickey 131 , 136, 1265 V. Douthit 930 I. Drais 446 V. Ellis 942 V. Evans 869 V, Express Co. 516, 520 0. Gage 1273 u. Goodyear 1349, 1352 17. Harris 726 V. Ins. Co. 937 V. Jackson 187, 188, 200, 794, 1303, 1307 V. James 650 V. Jones 519 o. King .549 V. Kremer 1200 V. Lamb 639 17. McConnell 450 V. Noxon 366 V. Passer ' 653 V. Pelletier 1213 V. Phillips 1365 V. Reed 178, 466, 1360, 1361, 1364 V. R. R. 262, 267, 268, 1094, 1316 V. Scituate 120 V. Shenck 942, 946 „. State 451, 452 • V. Sturtevant 472 Reedy v. Scott 1354 V. Smith 909 Reel V. Elder 808 V. Reel 1011 Rees, in re 888, 1314 Rees V. Jackson/ 699 V. Lawless 838 V. Livingstone 259, 393 V. Lloyd 1352 a. Stille 1252 V. Walters 195, 769 V. Williams 728 Reese v. Harris 315 .7. Reese 715,722,1116 V. Wyman 1019 Reesid:e, The 958, 1070 Reeve v. Bird 860 V. Crosby 466 u. Dienuett 931 a V. Ins. Co. 357 V. Whitmore 1088, 1103 Reeves v. Bass 1031 o. Herr 429, 431 V. Lindsay 888 V. Poindexter 415 787 TABLE OF CASES. Eeffell V. Reffell Reformed Church v. Brown Reformed Dutch Church v Eyck Regan v. Regan Regnell v. Sprye Ke Gregory's Settlt. & Wills Rehberg v. N. Y. Reichart v. Castator Raid V. Batte i;. Colcock V. Coleman V. Dickons V. Hoskins i:. Langlois V. Lottery Co. V. Reid V. State Reidpath's case Reiff V. Reiff Reilly v. Cavanagh V. Fitzgerald V. Reilly Reimers v. Druoe Reinboth v. Zerbe Reineman v. Blair Reinhardt v. Evans Reinheimer v. Carter Reis V. Hellman Reitan v. Goebel Reitenbach a. Reitenbaoh Eeitenbaugh v. Ludwick Reliance, The Remann v. Buckminster Rembert ». Brown Remick v. Sandford Reramett v. Lawrence Renard v. Sampson Renaud v. Abbott Renneker v. Warren Rennell v. Kimball 797 788, 792 Ten 622 63 577 999 64 1167 61, 61 u, 78 155 444, 742 1114 1170 756 1206 563, 1011 707 1324 866 63 214, 810 430 803 111 1170 466 883 698, 1124 32 1166 1019 359 475 a 616 870, 875 1155 1014, 1015 287, 808 1175, 1183 927, 930, 1026 Renner v. Bank 90, 129, 135, 137, 969 Renney v. Williams 33 Renshaw v. Gans 931, 1019, 1023, 1026, 1058 V. The Pawnee 1162 Rentschler v. Jamison 796 Renwick v. Renwiok 1050, 1156 Republican Valley R. R. v. Arnold 447 Requa v. Requa Residence Ins. Co. v. Hanuawald Resp. V. Davis 1-. Gibbs Ressequie v. Mason Ressequire v. Byers Reuss V. Pickley V. Pioksey Revel V. State Revenburgh v, Revenburgh Revis V. Smith Rew V, Hutohins 788 492 366 ■ 770 541 466 823 872 617, 872, 873 1265, 1269 433 497 21, 490 Rewalt V, Reyburn Reynell i Reyner ;>, Reynolds Reynolds Ulrich >. Belotti Sprye Hall , ex parte V. Collins V. Copeland V. Fenton u, Ferree V. Hewett V. Howell V. Insurance Co. V. Jourdan V. Linard V. Longenberger V. Lounsbury V. Magness V. Manning V. Nelson V. Quattlebum 78, V. Robinson V. Roebuck V, Rowley 0. Schweinfuss V. Sprye V. Vilas Reynoldson v. Perkins Rheem v. Snodgrass Rhine v. Robinson Rhoades v. Delaney I). Selin Rhode V. Alley V. Lputhain V, McLean Rhodes v. Bate V. Castner V. Com. V. Farmer 0, Lowry V. Rhodes a. Seibert Rhone v. Gale Ricard v. Williams Rioardo v. Garcias Rice V. Barrett V. Brown V. Bunce V. Com. V. Crow V. Cunningham ■V. Ins. Co. V, Lowan V, Manley t>. Martin V, Montgomery V. Poynter V. Rice V. Shook V. Troup Rice's Succession 785, 998 708 754 1064, 1065 536 1316 175 803 1183 909 764, 797 483, 940 151, 961 466 210 391 923 1090 1302 141 466 452, 496 800, 1119 1180 663 587, 590 1042, 1046 1169 683 180, 514 795 155, 156, 585 979 515 143 931, 124S 944 529 1019, 1031 1174 910 114 1286 1349, 1350 801, 803, 805 1142 795, 980 1143 1269 1066 5, 1101, 1307 540 775 901, 1290 468 339, 340 135 451, 587 338 931a 287 TABLE OF CASES. Rich V. Eldredge 678, 1140 V. Husson 430, 478 V. Jones 439 V. Keyser 1352 ti. Rich 944 Richard v. Boiler 693 V. Brehm 84 Richard Busteed, The 775 Richards v. Barlow 808 V. Bassett 188 V. Bluck 1249, 1312 V. Doe 1070 V. Elwell 1352 V. Gogarty 228 V. Grinnell 864 V. Johnston 1083 V. Judd 490 I/. Kountze 1248 V. Lewis 145, 625 V. Millard 1035 V. Morgan 1139 V. Mumford 895, 899 V. Murphy 1170 V. Noyes 1090 V. Porter 872 V. Richards 53, 509, 863, 1279 V. Rose 1346 V. Schlegelmich 946 V. Skipp 726 V. Sweetland 1121 Richardson's case 949 Richardson v. Anderson 127 V. Boston 782, 792 ... Boynton 1030 V. Braokett 466, 468 i^. Carey 248 V. Comstock 920 V. Cooper 901 V. Crandell 880 V. Dorman 678 V. Dorr 1357 V. EUett 977 V. Emery 684 w. Field 1213 V. (reorge 357 V. GifFord 855 V. Hadsall 473 V. Hage 392 0. Hazleton 980 V. Hitchcock 513, 1212 V. Hooper 1026 u. Hough 388 V. Hunter 795 V. Johnson 712, 863 V. Kelly 555 V. Mellish 639 17. Milburn 72 V. Mounie 1156 0. Newoomb 714 V. Northrup 446 Richardson v. Palmer V. Reede V, Roberts u. Robbius V. Smith V. Stewart V. Watson V. Williams V, Woodbury Richart v. Scott Riohey v. Ellis V. Grarvey Richie V. Bass Richley v. Farrell Richman v. State Richmond v. Aikeu u. Farquhar V. Foote V. Hays Richmond R. R. v. Snead Richmond Works v. Hayden Richmonds v. Atkinson Richter v. Trust Co. Rickert v. Madeira Rioketts v. Pendleton V. Turquand Rickey v. Tenbroeck Ricord v. Jones Riddle v. Backus V. Dixon Riddlehover v. Kinard Rideout's Trusts Rideout v. Newton Rider v. Ins. Co. V. Miller V. People V. White Ridgely v. Johnson Ridgway, in re Ridgway v. Bank V. Darwin V. Ewbank V, Wharton Ridley v. Gyde i;. McNairy V. Ridley Riedmau v. Conway Rielil V. Foundry Ass Riesz's Appeal Rigg V. Curgenven Rigge V. Burbridge Riggin V. Collier Riggins V. Brown Riggs V. Myers V. Riggs V. Tayloe V. Weise Right V. Bucknell V. Price Righton, in re Rigsbee k. Bowler 789 23 1064 412 134, 140, 879 1318 671 924 340 1031 1346 751 75 76, 1128 129, 134 538 1226 956 909 785 949, 1050 1175 521 609 903 123 943 875 698 883 1168 1352 431, 464, 608 707, 1090 509 451 417 41 733 1281 23g, 1131 1109 356, 357 872, 901 261 909 417, 883 1142 1205 856 84 1117 340 180, 509, 514 1002 886 1.32, 137, 153 518 1040 887 1131 1022 TABLE OF CASES. Riker v. Hooper 787 Riley v. Butler 1124 V. City of Brooklyn , 1014 V. Farnsworth 870, 901 V. Gerriah ' 1060 V. Minor 868 V. Packington 1315 V. Snydam 1217 Rimel v. Hayes 1200 Rindge v. Breok 685 Rinesmith v. R. R. 259 Riney v. Vallandingham 570 Ring V. Billings 970 V. Foster 690 ti. Huntingdon 674 V. Jamison 468 Ringgold V. Galloway 147 u. Tyson 595 a Ringhouse v. Keever 223, 1274, 1277 Ringo V. Richardson 226, 1037 Rings V. Richardson 1035 Rio Grande, The 815 Ripley v. Babcock 1253 u. Hebron 1285 V. Mason 1217 V. Paige 1089, 1108 V. Warren 324 Ripon V. Bittel 438, 551, 665, 666 Rippa V. R. R. 677 Rippe V. R. R. 522 Ripple V. Ripple 99, 288, 1303 Rishor v. The Frolic 1363 Rishton v. Nesbitt 208 V. Nisbett 389 Rising Sun Bank v. Brush 1059 Risley v. Phoenix Co. 814 Rison V. Cribbs 464 Ritchie v. Holbrooke 601 u. Kinney 60, 80, 662 u. Pease 957 Ritohey v. Martin 1163 Ritter v. Democratic Press 397 u. Schenck 1362 V. Stevenson 903 o V. Worth 1053 Rivara v. Ghio 403 Rivard v. Gardner 833 V. Walker 1165 Rivenburgh v. Rivenburgh 433 Riverean v. St. Ament 180 River Steamer Co., in re 1090 River Wear v. Adamsou 927 Rives V. Parmley 123 V. Thompson 156 Rixey v. Bayse 562 Rixford v. Miller 1284 Roach V. Lehring 269 V. State 432 Robb's App. 429 Robb V. Hackley 570 bobbins v. Chicago 770 790 Robbins v. Codman 1110 V. Fletcher 32 V. McKniglit 866 V. Richardson 1163a V. Robbins 433 V. Smith 1246 V. Townsend 120, 1362 Robbinson v. R. R. 1175 Robert's Will 302, 308 Roberts, ex parte 763 Roberts v. Allott 540, 544 V. Barker 961 V. Bethell 1320 i; Bradshaw 162 V. Caldwell 803 V. Davis 1144 V. Doxeu 80 o. Dunn 1290 V. Eddington 120 V. Fleming 441 V, Fonner,eau 1170 V. Fortune 816 V. Prawiok 1199 V. Gee 480 u. Graham 268 V. Guernsey 366 V. Haines 1344 V. Hamilton 782 V. Haskell 147 V. Johnson 439, 441 V. Keaton 490 V. Marley 314 V. Medbury 175 V. Mullenix 930 v. Opp 1035 V. Phillips 889 V. Pillow 1313 V. R. R. 346 V. Riley 1070 V. Roberts 226, 900, 1108 V. Spencer 161 V. Trawiok 1009, 1012, 1088 . Borrowscale 115, 740 t;. Griffith 557 Sanborn v. Babcock 416 «. Batohelder 932, 1017 V. Fellows 795 V. Flagler 873 V. Lang 470 V. Long 1049 TABLE OF CASES. Sanborn v. School District 641, 642, 644 Sassen u. Clark 423 Sanborn i'. Southard 1027 Sasser v. Herring 1168 Sanchaz v. People S.'iO Sastry v. Sembreoutting 1297 Sanders v. Barlow 879 Sate V. Abbey 307 V. Gillespie 879 Satterlee v. Bliss 619, 1103 V. Keisler 268 Satterwhite v. Hicks 1167 V. Sanders 129 Sauer v. Brinker 950 V. St. Neot's Union 694 Saul V. Buck 412 Sanderson v. Bell 702 V. His Creditors 311, 1250 V. Frazier 48, 359 Saulet v: Shepherd 1342 V. CoUman 1149 Saulsbury v. Blaiidys 957 V. Graves 102.5 Saunders v. Cramer 869 V. Nashua 551 V. Fuller 201, 208 V. Osgood 1118 V. Hendrix 428 V. Peabody 785 ... McCarthy 619, 1090, 1184 u. Symonds 623 V. Mills 32 V. White 997 V. Topp 875 Sandford v. Decamp 1082 Saunderson v. Jackson 873 D. Handy 1170, 1173 u. Judge 1323 V, Horwitz 466 V. Nashua 552 v. Remington 592 Sauter v. R. R. 39, 667 Sandifer v. Howard 1163 Savage v. Brocksopp 487 Sandilauds, in re 693, 739, 888 V. Carroll 909 Sandilauds w. Marck 1194 u. D'Wolf 725 Sands v. Arthur 104 V. Foster 909 V. Robison 601 V. Hutchinson 696, 700 ». Shoemaker 1190 V. Lee 909 Sandwich Co. v. Nicholson 439 V. O'Neil 314 Sandys v. Hodgson 1155 V. Stone 863 Sanford v. Chase 3S9 Saveland «. Green 76 , 617, 1080 V. Ellithorp 262, 265, 466 Savercool v. Farwell 1014 1/. Howard 259, 1014 Savery v. Browning 1690, 977 V. Nichols 833 0. Spaulding 1165 V. R. R. 940, 946 Savings Bank v. Davis 693 V. Raikes 943 Savoie v. Ignogoso 1220 V. Rawlings 958, 972 Sawtelle v. Drew 958 V. Sanford 466, 1302 Sawyer's case 397 V. Shepard 446, 447 Sawyer K. Birchmore 581, 586 Sanger v. Upton 980 V. Boyle 793, 811 San .Jose Bank v. Stone 1058 V. Eifert 49 Saukey v. First Nat. Bk. 1021 u. Garoelon 96 V. Reed 64, 991 V. Ins. Co. 814 Santa Cruz Co. «. Santa Clara Co. 779 V. McLouth 1044 Sarahess v. Armstrong 338 V. Sawyer 1220 Saratoga & S. R. R. Co. v Rowe 1017 . Byrd 142 V. Hampton 549 V. Miller 795 c: R. R. 360 V. Miltenberger 981 V. State 440 441 V. Smith ' 466 V. Tiffin 796 803 Shiff V. Ins. Co. 963 Shenandoah R. R. v. Griffith 788 Shilcock V. Passman 356 Shenango v. Braham 1290 ShiUito V. Sampan 175 Shennit v. Brueggestredt 412 Shindler v. Houston 874, 875 Shepard, in re 377 Shinkle v. Bank 1363 Shepard v. Giddiugs 137 ,164 Shipley v. Patton 883 V. Parker 548 c. Todhunter 579, 1323, 1325 V. Pratt 510 Shipman v. Rollins 764, 796 V. Wright 803 V. State 295 Sbepardson v. Gary 788 Shippen's Appeal 667 Sheperd v. Brooks 139 Shirland v. Iron Works 1165 Shephard v. Little 1042 Shirley v. Fearne 64, 988 Shepherd i;. Chewter 1065 Shitter v. Bremer 709 V. Currie 1336, 1362 Shitz V. Dieffenbach 903 V. Frys 690 Shoe, etc. Bank w. Wood 305 V. Goss 723 Shoemaker v. Ballard 986 (,. Hamilton Co 513 V. Bank 1323 u. Kaiu 961 11. Benedict 1195 V. Payne 941 (/. Kellogg 681, 686 V. Payson 489 Shoeuberger v. Hackmann 61 a, 72, 90, V. State 37 ' 724, 1266 V. Thompson 192 Shoofstel V. Adams 903 a V. Willis 508 Shook V. Pate 185, 522, 677 Shepler v. Scott 1017 Shorb V. Kenzie 712, 713 Sheppard v. Bank 1140 a. Kinsie 719 u. Starke 1216 1217 Shore v. Bedford 587 Sherhorne v. Shaw 871 V. Wilson 23, 924, 936, 940, 941, Sherburne v. Rodman 47 956, 962 963, 972, 993 Sherer v. Trowbridge 856 Shorey v. Hussey 550, 1318 Sheridan's case 81 Short V. Lee 187, 226, 234, 246, 1316 Sheridan v. Ireland 814, 818 V. Mercier 534 V. Medara 393 V. Staple 366 h. Quay Co. 1150 u. Stotts 882 Sherley v. Billings 1102 V. Williams 322 Sherlock v. Ailing 475 Shorter v. Shepard 130 Sherman v. Blodgett 509, 510 Short Mountain Co. v. H «-dy 507, 872, 0. Lanier 167, 4736,478 1090, 1127, 1183 V. Scott 420 Shortrede v. Cheek 870 V. Sherman 1140 Short Staple, The 357 V. Smith 63 Shortz V. Unangst 148, 153, 643, 740, V. Story 490 1267 ,1. Trans. Co. 21, 726, 883 Shotwell V. Harrison 1043, 1049 Sherras v. Caig 670 V. Murray 1029, 1240 Sherratt v. Mountford 994 V. Shotwell 931 Sherrerd v. Frazier 106 Shoun V. MoMaokin 1274, 1279 Sherrill v. Hagan 863 Shove !'. Wiley 250 V. Hopkinson 314 Shovington v. Smith 937 Sherrington o. Jermyn 626 Shower v. Blaidard 803 Sherry v. Picken 866 Shown V. Barr 103 Shertz v. Norris 476 Shreve v. Dulany 155 Sherwood v. Burr 1349 Shreveport ;;. Le Rosen 920 ■;. Hill 429 Shrewsbury Peerage case 82, 210, 216, v. Houston 175 219, 220, 636, 639, 712 V. Sissa 678 Shriedley v. State 516, 522 V. Yeomans 1118 Shriver, in re 1275 799 TABLE OF CASES. Shriver v. State Shiowders v. Harper Shroyer v. Miller Shubrick v. State Shuetz V. Bailey Shuey-". U. S. Shufelt V. Slmfelt Shughart v, Moore Shulman v. Brentley Shultz V. Ins. Co. V. Moore V. State Shunian v. Shutnan Sliumway v. Leakey V. Stillman Shurtleflfw. Willard Shutesbury v. Hadley Shutte V. Thompson 1279 151 47, 50 278 939, 946 674 769 928, 1018, 1026 357 1246 78 500 201, 210 314 796, 808 393 653 185, 186 Shuttleworth v. Le Fleming 1349 Sibbering v. Balcarres 1320 a Sibbey v. Ins. Co. 776 Sibley v. Ellis 1349 V. R. R. 416 0. Waffle 582 Sicard u. R. R. 779 Sichel u. Lambert 1297 Sickle V. People 714 Sickles V. Gould 439, 444 Sidebotham v. Adkins 638 Sldelinger v. Bucklin 47, 670 Sidensparker v. Sidensparker 797, 823- Siduey v. Sidney 1298 Sidwell V. Worthington 1302 Siebert v. Leonard 838 Siegbert v. Stiles 339, 1290 Sievwright v. Archibald 75, 1016 Siffkins v. Walker 951 Sigmqn v. Hawn 822 Sigourney v. Sibley 492, 600 Sikes V. Paine 444 0. Shows 957 Sill w. Reese 259, 708 Sillick V. Booth 1277, 1280, 1283 Sillimau v. Tattle 1015 Sills r. Brown 452 Silsbury v. Blumb 1026 Silver i\ Worcester 466 Silver Lake Bank v. Harding 99 Silver Mining Co. t. Fall 8 Silvers v. Hedges 366 Silvis V. Ely 1077 Simkins v. Eddie 423 Simmards o. Strong 673 Simmonds, in re 886 Simmonds v. Humble 875 V, Simmonds 414 Simmons v. Carneo 448 V. Haas 1103 V. Havens 740 V. Holster 533, 563 Tj 446 V. Snyder 422, 499, 502, 503, 1050 <-. Wilt 1044 c. Wise 99 803 TABLE OF CASES. Snyder v. Wolford 863 Soar V. Foster 1035 Sobey v. Brisbee 883 V. Thomas 415 Society v. Wheeler 1353 V. Young 1313 Society of Savings v. New London 1147 Soc. Prop. Gospel v. Whitcomb 64 V. Young 292, 294, 1303, 1310 Sodonski v. McGee 31, 535 Soles V. Hickman 870 Solita V. Yarrow 713 Solly II. Hinde 1044 Solomon v. Hughes 337, 339 V. Jones 180 V. Kirk wood 1206 V. Solomon 1088 V. Vintners' Co. 1346 Solomon R. R. v. Jones 1184 Solyer v. Romanet 339 Somerby v. Bunting 883 Somers v. Harris 690 V. McLaughlin 874 V. Wright 520, 685, 1165 Somerset Ins. Co. ;;. Usaw 1246 Somervell v. Hunt 674 Somerville's case 1097 Somerville v. Gillies 1362 V. Hawkins 1262 V. Wimbish 292, 293 Somerville R. R. v. Doughty 572 Somon V. People 1246 Sonneboru v. Bernstein 32 Sopwith V. Sopwith 758, 786, 1220 Sorenson v. Dundas 259 Sorg V. First German Cong. 419, 510 Sorrell v. Craig 563, 1126, 1135 Sotilichos V. Kemp 958 Souch V. Strawbridge 883 Sender v. Schechterly 1163 Soulard v. Clark 640 Soule V. Bruce 47 ■ Soulie I'. Ransom 837 Sourse v. Marshall 920, 923, 1068 South V. Hickenbottora 510 South Ala. R. R. v. Henlein 822 V. Pilgrein 335 V. Wood 335 Southard v. Rexford 533, 535, 536, 538 South E. R. R. V. Wharton 1040, 1083 Southern Bank v. Humphreys 766, 982 V. Mech. Bk. 123 Southern Ex. Co. v. Thornton 708, 1127 V. Duffey 1173 Southern Life Ins. Co. v. Wilkinson 219, 510, 1193, 1217 Southey r. Mash 491 Southgate v. Burnham 826 South. Ins. Co. u. Yates ■ 1243 804 South. Life Co. v. Gray 1062 South West R. E. v. Papot 472 South of Ireland Colliery Co. v. Waddle 694 South Ottawa v. Perkins 290, 1 147, 1240 South Park v. Todd 1144 Southwell V. Bowditoh 951 V. Breeseley 883 Southwest Co. v. Stanard 875 Southwest E. R. v. Rowan 259 Sonthwick v. Southwick 431 Southworth v. Adams 139 V. Bennett 562 V. Hoag 357 Soulier v. Kellerman 961 Soward v. Leggatt 356 Sowden v. Craig 828 0. Mining Co. 2S3 Sower V. Weaver 487 Sowerby v. Butcher 951, 1061 Sowers v. Dukes 436, 513 V. Earnhart 1018, 1027 Sowles I'. Sowles 1044 Spaids V. Barret 931 Spalding v. Bank 142, 1170 u. Hedges 664, 665 V. Saxton 63 Spangle v. People 290 Spann v. Baltzell 123 „. Cochran 879 V. Crummerford 315 Spargo V. Brown 227 Sparhawk v. BuUard 194 Sparks v. Com. 1296 V. Dawson 1246 V. Rawles 77, 1331, 1334 Sparr v. Wellman 510 Sparrow v. Tarrant 704 Spartali v. Benecko 929, 969 Spatz V. Lyons 265, 268 Spauldiug V. Hallenbeok 237, 393, 1156 V. Harvey 357 V. Knight 175, 923, 1040, 1044 V. R. R. 360 V. Strang 509 V. Vincent 94, 110, 319 Spaunhorst v. Link 555 Spear v. Commis. 512 V. Richardson 452, 502, 510, 512 Spears v. Burton 944, 1274 V. Forrest 562 V. Ins. Co. 47 t. MoAyr 510 V. Snell 398 t>. Ward 958 Specht V. Howard 1059 Speed V. Brooks 201, 216 Speedy v. Streeter 1060 6 TABLE OF CASES. Speer v. Plank Road 290 Speers v. Parker 1305 Spence v. Bowen 1027 «. Healey 1018 V. Ins. Co. 786 V. Robbins 562 V. Sanders 688 Spenoeley v. De Willott 559, 1287 V. Schulenburgb 587 Spencer v. Bedford 730 u. Billing 80 V. Brookway 795 V. Dearth 758, 779, 794, 823 V. Hale 875 u. Higgins 1002 V. Langdon 118 V. Lawton 863 V. Newton , 389 V. Roper 1276, 1277 V. Thompson 31, 1330 V. Tilden 920, 936 V. Trafiford 469 V. White 549 17. Williams 810,811 Sperling, in re 889 Speyer v. Stern 68 ... Sterne 90 Speyerer v. Bennett 178, 477 Speyera v. Lambert 869 Spieer v. Cooper 961 a i!. Hooper 961 V. Smith 690 Spiokernell v. Hotham 870 Spicott's ease 411 Spiers v. Willison 77 Spiker ». Nydegger 518 Spill II. Maule 1262 Spillman v. Williams 795 Spilsburg V. Burdett 1314 Spitler V. James 632 Spittle V. Walton 402, 403 Spiva V. Stapleton 439 Splahn V. Gillespie 821, 833 Splawn V. Martin 1045 Spofford V. Brown 1058 Sponagel v. Bellinger 1103 Sponer v. Eifler 697 Spooner v. Juddow 324 V. Payne 726 Spoonomore v. Cables 894, 992 Spoor V. Holland 828 Spradling v. Conway 429 ■Spragg V. Shriver 981 Sprague v. Bailey , 645 V. Blake 875 V. Brown 64 u. Duel 1253 V. Kneeland 1165 V. Letherberry 1302 ». Lather 887 V. Swift 469 Sprigg V. Bank 1031 w. Moale 1274, 1279 Sprigge V. Sprigge 900 Spring V. Eve 282 V. lusur. Co. 726 V. Lovett 929 Spring, The 331 Springfield v. Worcester 286 Spring Garden Ins. Co. w. Evans 153, 523 Springer v, Kleinsorge 856 Sproat V. Donnell 1070 Sprowl V. Lawrence 282, 335, 667 Spurgin v. Fraub 932, 1023 Sparr v. Bartholomew 1310 V. Cass 949, 954 V. Trimble 1274 Squire v. State 84, 86 Squires v. Chillicothe 268 Srimut Rajah v. Katama Matchiar 788 Stacey v. Graham 569, 1127, 1336 V. Kemp 1044 Stack V. Beach 1059 Stackhouse v. Horton , 451 Stackpole v. Arnold 951', 1031, 1066 V. Robbins 1066 Stacy V. Portland 510 Stafford v. Clark 788 V. Rice 595 a 0. Roof 1272 Stahle V. Spohn 551 Stainback v. Bank 123 Staines v. Stewart 895 Stainton v. Chadwick 755 V. Jones 331 Stair V. Bank 226, 1019, 1031 Stall V. Meek 1217, 1257 Stallings v. Hinson 466, 473 V. State 252 Stalworth V. Inns 824 Stamford i;. Dunbar 1351 Stammers v. Dixon 941 Stamper v. Griffin 68, 569, 570 Stampofski v. Hooper 1302 V. Steffins 484 Standbridge v. Catanaoh 472 Standbro o. Hopkins 543 Stancliffe v. Hardwiok 1259 Standage v. Creighton 1188 Standard Oil Co. v. Van Etteu 21 Standifer v. White 1058 Standish v. Ross 1155 Stanfield .,. Phillips 510 Stanford v. Murphy 422, 466 V. Pruet 288 Stanford's case 383, 534 Stange v. Wilson 1026 Stanger v. Searle 707 Stanglein v. State 110, 319 Stanley v. Green 945 V. Hubbard 1033 805 TABLE OF OASES. Stanley i'. Montgomery 429 State V. Berry 643 V. Stanton " 430, 478 u. Berlin 346 V. State 451, 512 V. Bilansky 535 V. Sntherland 64 «. Black 265, 431 V. White 44,45 V. Blake 533 Stannard v. Smith 1129 V. Bostlok 597 Stanton v. Collier 862 V. Boswell 562 1. Embrey ■446 u. Bowen 525 o. Jerome 958 V. Brady 563 V. Miller 927, 930 V. Brant 568 V. Ryan 474 V, Brantley 412 V. Small 875 ('. Brasstield 290 Stanwood v. McLellan 521, 525 u. Breeden 562 Stapenhorst v. Wolff 937 V. Bridgman 425 Staples V. Wellington 531 V. Briggs 425, 432 Stapleton v. Crofts 432, 464 V. Brinyea 1353 V. Dee 822 V. Britt 346 V. King 601, 1066 u. Britton 84,86 Stapylton v. Clough 232, 245 I'. Broadnax 549 Starbuok v. Murray 796, 808 V. Broughton 601 Stark V. Billings 824 V. Brown 412, 662, 760, 764, 796 V. Chesapeake Ins. Co. 176 V. Bruce 562 ... Fuller 986 V. Brunello 509 Starke v. Kenan 1200 V. Bryan 1079 V. Littlepage 1019 V. Buffington 427 V. People 568, 569 V. Burns 31 V. Sikes 558 u. Cain 394 V. Starr 758 V. Campbell 177 Starkweather v. Loomas 99 V. Candler 397, 708 Starr v. Bennett 1170 V. Cardinas 62, 127 «. Peek 83 V. Cardozo 572 V. Sanford 123 V. Carr 289 708, 713 V. Torrey 1323 ■V. Carter 427 Starret v. Douglass 1012 V. Catskill Bk. 391 State V. Abbey 87 u. Cecil Co. 812 a ... Abbott 278, 289 V, Center 427 V. Able 177 V. Chamberlain 1264 )). Adams 545 r. Chambers 64 V. Allen 712 V. Chaney 723 V. Anderson 707, 1205 V. Charity ■ 607 V. Andrews 64 V. Check 289, 519, 525, 718 V. Angelo 555 V. Cherry 568, 569 V. Armstrong 84 u. Clark 116, 452 V. Arnold 346 V. Cleayes 1137 V. Atkins 177, 544 . Davis 674 V. Ins. Co. 814 Stringfellow v. Montgomery 175, 466 V. State 499 Slrobart v. Dryden 268 Strode v. Churchill 100 V. Magowan 1298 V. Russell 993 Stroh V. Hickman 21 Strohm v. R. R. 441 Strohra's Appeal 1360, 1364 Strong V. Bradley 825 TABLE OF CASES. Strong V. Brewer 69e , 707 V. Dean 466 V. Dickenson 389 V. Place 358 V. Riker 1059 V. Slicer 1081 V. Stevens 423, 510 V. Stewart 1032 V. Wheaton 761 Stronghill v. Buck 1039, 1083 Strother v. Barr 60, 61 V. Lucas 300 Stroucl, in re 800 Stroud V. Springfield 640 V. Tilton 682 Strutters v. Kendall 626 V. Reese 117 Stuart !j. Binsse 677 d. Bute 817 V. Kissam 1108 V. Lake 393 Stutbs V. Leavitt 1302 V. State 337 Stuckey v. Bellah 451 Studdy V. Sanders 589, 1119 Studebaker ;;. Dnbson 142 Studley v. Barth 878 V. Hall 601 Stniflebeeni v. Arnold 1042 StuhlmuUer v. Ewing 429 Stumm V. Hummel 346 Stump V. Henry 838 Stumpff V. Osterhage 201, 1156 aturge V. Buchanan 155, 572, 1103, 1106 Sturgis V. Gary 961 V. Hart 147 Sturla V. Francis 208 Sturlevant v. Randall 64, 988 V. Robinson 132 V. Sturtevant 1032 V. Wallaok 1154 Sudbury v. Stearns 1316 a Sndler v. Collins 624 Snffern v. Butler 939 Suffield V. Brown 1346 Sugar V. Davis 1089 Sugart V. Mays 958 Sugden v. Lord St. Leonards 139, 414, 1008 Suggett V. Cason 883 Suisse V. Lowther 974 Suit V. Bonuell 545 Sullivan v. Collins 408 V. Com. 441 V. Deadman 123 V. Goldman 1284 t. Kelly 1298 Sullivan v. Ins. Co. 1172 V. Kurgkendall 1323 ./. R. R. 265, 268, 357 Sullivan v. State 178 V. Sullivan 723, 993 Sullivan Granite Co. v. Gordon 1165 Sulphen v. Norris 1348 Snlphine v. Dunbar 1148 Summerill v. Summerill 1220 Summers, in re 888, 1300 Summers v. Cooke 423 a V. Ins. Co. 1031 V, Moseley 550 V. U. S. Ins. Co. 1019 Summerville v. R. R. 1142, 1151 Summons v. State 177, 178, 180, 510, 514 Sumner v. Blair 529 V. Cook 1165, 1302 V. Crawford 551 V. Sebec 645, 653, 1355 V. State 8, 456 , V. Stewart 967 V. Williams 254 Sumwalt V. Ridgely 1061 Sunday v. Gordon 414 Sunderland, in re 890 Supervisors v. Heenan 290 V. Magoon 1118 Supples V. Cannon 600, 758, 785 Supt. (7. Atkinson 712 Snrcome v. Pinniger 882 Surney v. Barry 627 Suse V. Pompe 958 Susq. Boom Co. v. Finney 986 Susquehanna Bank v. Evans 1059 Susquehanna Bridge v. Ins. Co. 694, 1059 Susquehanna R. R. v. Quick 95, 824, 1102 Sussex Peerage case 77, 87, 210, 214, 219, 226, 227, 228, 245, 306, 307, 308 Sutcliffe V. Atlantic Mills 869 u. State 106 Sutherland v. Briggs 909 V. Carter 879 V. Hawkins 451 V. R. R. 415 Sutphen v. Cushman 366, 1314 V. Sutphen 883 Sutter V. Lackman 366, 1167 Sutton V. Bowker 939 V. Buck 1336 V. Davenport 1265, 1268 V. Drake 282 V. Fox 397, 567 V. Gregory 251 V. Kettell 1070 V. McConnell 47 V. Sadler 356, 357, 1252 V. Tatham 298 Suyet V. Doe 668 Swaiks V. Cessna 611 Swain v. Chase 1308 813 TABLE OF CASKS. Swain v. Ettling V. Lewis t,-. Saltmarsh. u. Seamans Swalley v. People Swamscot v. Walker Swan V. County V. Hnghes V. Middlesex Co V. Nesmith V. Nortli Brit. & Australasian 1363 162 23 981 988 549' 436 120 446 879 Co V. 0' Fallon V. People Swann v. Buck V. Express Co. ?j. People V. West Swansea Vale R. R. u. Budd Swanton Dist. v. Danville Swartwout v. Payne Swartz V. Chickering Swasy V. Bible Soo. Swatman v. Ambler Swayze v. Carter V. Swayze Swearingen v. Harris Sweatland v. Tel. Co. Sweeney v. Booth V. Easter Sweeny v. McMillan Sweet V. Brackley u. Lee 1151 718 417 290 480 413 1127 752 640 763 467 997 873 1144 372, 1252 688 1173, 1180 515 595 a 1156 808 869, 873, 901, 937, 940, 954 V. Maupin 785, 797 V. McAllister 1060, 1060 a, 1061 . Parker V. Sherman Sweeting v. Fowler Sweetzer v. Bates V. Lowell Sweezy v, Collins V. Stetson Sweigart v. Berk V. Lowmarter V. Richards Swenson v. Aultman Swetlaiid v, Swetland" 1031 569 1273 1049, 1165 718, 977 473 1118 781 674 704, Y14, 719 1175 1031 Swindell v. Warden Swinfen v. Ld. Chelmsford V. Swinfen Swing V. Sparks Swinnerton v. Ins. Co. V. M. of Stafford Swinton v. Bailey Swisher v. Swisher's Adm'r Swittenham v. Leary Swope V. Forney Sybray v. White Sydleman v. Beckwith Sydney, The Syers v. Jonas Sykes v. Bonner V. Dixon V. Dunbar V. Gerber V. Keating V. Lewis Syler v. Eckhart Sylvester v. Crapo u. Downer V. State Syme v. Stewart Symmes v. Major Symonds v. Gas Co. V. Peck Sypher v. Savery T. T. a. D. 438, 1320 a V. J. 414 Tabb V. Cabell 838 Table Mountain Co. v. Stranahan 863 Tabor v. Van Tassell 1156 V. Ward 466 Taff V. Hosmer 1252 Taintor v. Prendergast 950 Talbot !.. Hodgson 730, 732, 1314, 1359 1101 1186 1186 683 175 197, 338 900 1042 1165 1042 1190 510, 512 359 969 790 869 601, 604 779 980 1207 856 1163 a 1059 397 300 325 1132, 1133 430, 478 1183 Swett V. Shumway 561, 566, 940, 961 Swick V. Sears Swift !). Applebone t. Ins. Co. V. Lee V. MoTieruan V. Pierce !). Smith V. Swift 1050 174, 1295 269, 510 1049 639, 1084 678 1058 1284, 1285 "• ~ '■ — — ■*) ti. The City of Poughkeepsie 63 u. Winterbotham 931, 1019 Swiggart v, Harber 982 Swinburne v. Swinburne 1035 814 V. Lewis 188 V. McGee 1184 V. Seaman 638 Talcott V. Despatch Co. 1250 V. Ins. Co. 123 Taliaferro v. Pryor 640 Talladego Ins. Co. v. Peacock 570 Tallman v. Bresler 879 «. Kearney 482 ,.. White 923 Talmage et al. v. Burlingame etal. 476 Talman v. Franklin 872 Tams V. Bullitt 1140 V. Hitner 726 V. Lewis 838, 1140 Tandy i-. Masterson 518 Taney v. Kemp 537 Tanham v. Nicholson 1326 Tann v. Tann 1004 TABLE OF CASES. Tanner ». Hughes 1226, 1323 Taylor v. French 1059 V. Taylor 522 o. Galland 1015 Tapley v. Martin 120 V. Gould 226 Taplin v. Atty 154 V. Grand Trunk Railway 512 Tapp V. Lee 1262 V. Hawkins 1262 Tappan, in re 533 V, Heitz 96 Tappan v, Beardsley 832 V. Henderson 1092, 1192 V. Norvell 97 V. Horde 1249, 1352 Tarbell i'. Bowman 1028 c;. Hughes 1151 Tarbox v. McAtee 1353 «. Jacques 931 c Steamboat Co. 357 u. .Jennings 542 Tarden v. Davis 366 V. Johnson 683 Tardif v. Baudoin 408 , 566 V. Jones 980 Tarleton v. Jobnson 492 .,. Kelly 466,4736,478 V. Shingler 626 V. Kilgore 100 V. Tarleton 801 , 806 V. Kiulooh 1164 Tarpley v. Blabey 32 V. Larkin 600 Tarquin v. The 1019, 1243 V. Linley 864 Tarsner v. Turner 549 V. Lumber Co. 444 Tarte v. Darbey 859 V. Lusk 262 Tasker v. Bartlett 693 u. Manners '1017 Tassay v. Church 1196 V. Maris 992, 1001, 1006 Tate V. K. R. 447 V. Mclrwin 541 V. Sullivan 1323 V. Marshall 1165 e. Tate 414 ,433 u, Merrill 1042 Tatham v. Drummond 973 V. Mounot 509 V. Wright 512 V. Moore 1019 Tatman v. Barrett 942, 1014 V. Moseley 626, 629 Tattenhall v. Parkinson 1114 V. Parry 945, 1005 Tatum V. Brooker 909 V. Paterson 490 V. Goforth 1052 V. Peck 1092 Taulman v. State 422 V. Phelps 802 Taunton Bk. v. Richardson 142 1C59 V. Pickett 559 Tayler v. Ford 1302 ■/. Pratt 869 V. Parry 636 o. Preston 1044 V. Stringer 518 V. Rennie 337 Taylor d. Atkyns v. Horde 1312 V. Richardson 1006 Taylor, ex parte 653, 654 V. Riggs 60 Taylor Will case 676, 720 1009 u. Robinson 1165 Taylor v. Adams 828 V. Robt. Campbell 76, 617 V. Barclay 282, 323, 338 V. R. R. 268, 510, 1165 „. Barnes 766 V. Rundell 756 V. Barron 288, 802 V. Runyan 288 V. Beck 595 a V. Ryan 563 V, Beech 882 V. Sayre 944, 1022 V. Bland 948 V. Sindall 758 V. Boardman 288 V. Smith 565, 569 V. Boggs 992 t. Sotolingo 961 V. Briggs 961 V. State 400 V. Brown 1216 V. Stray 1243 V. Burgess 1061 V. Strickland 1062 V. Burnsides 66 V. Sutherland 709 V. Carpenter 101 V. The Robert Campbell 1128 V. Castle 779 V. Tolen 997 . Ashby 1112 V. Fen ton 910 V. Att'y-Gen. 639 V. Graves 47 V. Saltmarsh 1102 V. Hargraves 875 Tomlin r. Hilyard 507 V. Houston 910 Tomlinson v. Collins 820 V. Johnson 1156 V. Derby 555 V. Long 879 V. Greenfield 322 V. Maynard 1214 Tompert v. Litligow 1308 V. Sharp 856 Tompkins v. Ashby 1184 V. Way 826 V. Philips 1085 V. Starr 21 Toner v. Taggart 1123 Toogood, u. Spyring 1262 Tooker v. Gormer 1120 V. Smith 855 <\ Thompson 97, 101 Toole V. Nichol 550 V. Peterson 185 Tooley v. Bacon 466 Toomer v. Gadsden 682 Tootney v. R. R. 359 Toosey v. Williams 1330 Topham v. McGregor 80, 522 Topley V. Martin 120 Tcplifif V. Jackson 1132 Topper V. Snow , 357 Toppin V. Lomas 863 Topping V. Van Pelt 1163 b Torbert v. Twining 992 Torgue v. Canillo 601 Torrens v. Campbell 1026 Torrey v. Berry 64, 988 V. Fuller 73 Totten ;;. Buey 74 V. U. S. 597, 604, 935 Tonchard v. Keyes 115 Toulandon v. Lachenmeyer 289 Toulmin v. Austin 740 V. Price 149 Tonrtellot v. Rosebrook 359 Tousley v. Barry 1163 Tower !i. Richardson 1058 Towers v. Rutland 39 ToTvle V. Blake 268 u. Topham 956 Town V. Lamphire 423 a V. Needham 423 Town of Lebanon c. Heath 114 Towne v. Bossier 1302 V. Lewis 1259 0. Milner 1124, 1269 v. Smith 487 Townsend Bank v. Whitney 520 Townshend v. McDonald 1350 V. Stangroom 1021 IK Townshend 37?, 451 Townsley v. Sumrall 128 Tracy Peerage 219, 220, 454, 718, 722 Tracy v. Atherton 1350 V. Jenks 1053 V. Kelley 427, 429 ■,-. MoManus 482, 1077, 1088, 1179 u. Merrill 760 V. Peer 210 V. People 417 Trader v. MoKee 99 Trafton v. Hawes 466, 468 o. Rogers 983, 990 Trahern v. Colburn 473 Traill v. Baring 1145 Trammell v. Hemphill 180, 514 u. Hudman 226 u. Pilgrim 920 V. Roberts 726 V. Thurmond 643 Trans. Co. w. Downer 363 Trans. Line v. Hope 444 Traphagen u. Traphagen 466 Trapps V. Harter 153 Trasher v. Everhart 302, 303 Tratter v. Schools 1318 Travis v. Brown .')58, 714, 719 V. Morrison 998 Treadway w. R. R. 1174,1184 Treadwell v. Buckley 1045 V. Joseph 357, 358 o. Reynolds 927, 930 Treat o. Barber 175 Treatman v. Fletcher 921 Treawell v. Graham 468, 1077 Treewell v. Hawkins 1058 Treftz V. Pitts 986 Tregany v. Fletcher 324 Trego V. Lewis 1192 819 TABLE OF CASES. Trelawney v. Colman 225, 269, 512, 978 Tuau. Carrier^ 799 Tremain v. Barrett 380 Tnberville v. Stamp 1294 Trent v. Hunt 1259 Tuckei V. Bradley 129 Trenton Ins. Co. v. Johnson 358 V. Burris 120 Trepp V. Barker 431 u. Burrow 1035 Tress v. Savage 855 o. Call 1246 Treusch v. Kamke 39 V. Donald 665 Trevanion, in re 880, 889 V. Finch 588 1205 Trevor v. Wood 76, 167, 872 V. Hood 1101 Trewhitt v. Lamtert 77 V. Mass. Central R. R. 446 Tribe w. Tribe 886 V. Meeks 1249 Trigg V. Conway 101 u. Morelaud 1272 j;. Reed 1017 u. Morrill 1058 1301 Trimlestown v. Kemmis 196,631,1156, V. Peaslee 1132 1157 V. People 659 Trimley v. Vignier 316, 962 V. R.R. 264 Trimmer v, Bayne 973, 974 u. Seamen's Aid Society 993 f. Thompson 1064 V. State 324 Triplett v. Gill 116, 1047 V. Talbot 1058 Tripp V. Hasceig 1021 V. Tucker 1168, 1220 Triscoll V. Newark Co. 1296 V. Welsh 77 Trott <.-. Irish 357, 1042 V. Whitehead 869 B. McGarock 833 V. Williams 409 V. Skidmore 888 Tucker Man. Co. v. Fairbank 1061 Trotter v. Latson 377 Tuckey v. Henderson 973 V. Maclean 1329 Tudgay v. Simpson 937 Tronp V. Sherwood 569 Tuff y. Warman 331 Trout V. Goodman 1017 Tufts V . Charlestown 1039, 1138 Troutman v. Vernon 775 Tnggle V. McMath 953 Trow V. ^hannon 477 ^. R. R. 1180 Trowbridge i'. Dean 959 Tuley V. Barton 1064 V. Wetherbee 902 Tull V. Parlett 1044, 1048 V. Wheeler 253 TuUey V. Alexander 422 Troxdale v. State 412 Tullis J. Kidd 437, 43£ ,441 Troy V. Smith 823 V. State 55S , 566 V. Troy R. R. 770 Tullock V. Cunningham 420 Truby v. Byers 726 V. Dunn 1199 V. Seibert 836, 1184, 1185 TuUy I . Canfield 115 Truax v. Slater 1163 Tunstall v. Medison 320 Trucks V. Lindsey 1031 Tuplin ? V. Ward 483 True V. Bryant 616 Tnpper v. Foulkes 634 u. Emery 833 a V. Kilduff 838 V. Sanborn 1287 Turberville v. Gibson 1031, 1049 Trnelove v. Burton 1188 Turley V. Dreyfus 803 Trneman v. Loder 937, 950, 958 V. Lot;an 290 V. Lore 1052 TurnbuU c. Payson 9" ,321 Trull V. True 702 Turneaux i: Hutuhius 21 Trnllinger v. Webb 1050 Turner V. Baker 863 Truman's case 84 u. Barlow 335 Trumbull v. Gibbons 1252 V. Belden 1191, 1199 Truro, in re 890 V. Bellagram 623 Truscott V. King 1026 V. Cheesnian 1009 1252 Truss !•. State 290 V. Coe 1217 Trustees v. Bledsoe 525, 838, 1119 V. Collins 367 V. Cokely 1190,1191 V. Cook 888 I.'. Dickinson 1342 V. Coolidge 875 V. Ins. Co. 883 V. Crisp 1135 V. Peaslee 996 I. Davis 952 V. Stetson 1058 <,. Foxall 412 Tryon v. Miller 1090 V. Green 725 v. Rankin 302 V. Hubbell 880 820 TABLE OF OASES. Turner v. Jenkins 764 V. Keller 482 V. Kerr 1032 i: Lewis 1133 V. Lucas 1243 V. Mollhaney 489 V. Moore 727 V. Pearte 393 V. Rogers 123 V. Rowenhoven 1248 ji. Savings Inst. 1006 V. Siusleton 61 «. State 568 o. Tubersing 29 V. Turner 931, 1050 V. Waddington 100, 109 V. Watterson 1352 V. Wilcox 936 V. Yates 1137 Turney i-. Thomas 331 V. Turney 1220 Turnipseed v. ffoodwin 1132 V. Hawkins 708 V. McMath 1063 Turnpike Co. v. Bailey 346 i,. Myers 1069 V. Phillips 1068 V. Thorp 1068 Tnrpin v. Brannon 821 Turquand v. Knight 581, 592 Turrell v. Morgan 1126 Turton v. Barber 579 Taska». O'Brien 775 Tuttle V. Brown 1190 V. Cooper 1200 V. Harrill 822 K. Robinson 520 V. Russell 401, 404 ■V. Turner 1192 Tntton V. Darke 335 Tutwiler v. Memford 923, 1042, 1047 Tuxbury v. French 998 Twemlin v. Oswiu 1283 Twiss V. George 468 Twomley v. R. R. 259 Twoomley v. Crowley 1042 Twyman v. Knowles 60, 77 Tyler v. Bank 123 V. Ch,eTalier 1302 V. Dyer 147 «. Flanders 202, 208, 216 V. Mather 1165 V. Pomeroy 551, 559 V. Pratt 803 V. Smith 833 u. Todd 714, 720 V. Wilkinson 1350 Tynan v. Paschal 900 Tyng V. R. R. 726 ■0. U. S. Submarine Co. 157 Tyree v. Murphy 1061 Tyrrel v. Woodbridge Tyrwhitt v. Wynne Tyson v. Booth V. Tyson 63 46 33 992 V. V. J. 414 ,433 Udderzook's case 676, 1277 Uhl u. Com. 397 , 562 Uhler V. Browning 1200 Uhlich V. Muhlke 366 Ulen V. Kittredge 873 UUman v. Babcock 972 Ulrioh V. People 501 V. Voneida 797 Umphreys v. Hendricks 726 Underwood v. Brookman 1241 a V. Campbell 856, 869 V. Courtown 1090 V. DoUins 693 V. Hossack 1365 V. Lane 130 V. Linton 1127 o. Simonds 1058 V. Waldron 511 V. West 1023 V. Wing 1281 Unger v. Wiggins 1139 Ungley v. Ungley 882 Union u. Bermes 869 V. Plainfield 208, 219 Union Bank v. Knapp 238, 249, 681, 1131 u. Middlebrook 123 V. Call 662 V. Coster 879 V. Fowles 123 ?/. Gregory 123 u. Underbill 1193 Union Canal c. Keiser 980 V. Loyd 872, 1127, 1156, 1336, 1362 Union Cent. R. R. v. Cheever 175 Union lus. Co. u. Cheever 1169 V. Connect. Ins. Co. 1014 V. Wilkinson 929, 930, 1172 Union P. R. R. v. U. S. 980 a Union R. R. v. Riegel 1173 V. Willis 1059 Union Savings Co. . Griswold V. Guiteau V. Hayward V. Holmes 822 617, 872, 1090 1175 451 633 1069, 1170, 1240 122, 518, 670, 732 115 114, 120 1318 831 319 1240 1346 795 76, 377, 595, 1323 338 384 175 114 61 63, 98, 567 389 90 ,397 540, 1138 30, 335 385 175, 708, 1127 185, 194 494 713, 717, 719 601 464 476 338 356 388, 494 114 712 1154 119, 135, 136 806 397, 541 398, 559 148 8 542 1059 965 325 108, 114, 1212 71, 493, 648 1180 253 116 1156 427 357, 368 551 U. S. V. Howland a. Hudland V. Hunter V. Jackalow V. Jackson V. Jarnaud u. Johns V. Johnson V. Jonas V. Jones I). Keen L. Kennedy u. Kuhn V. Langton V. Laub c/. La Vengeance V. Learne^ V. Linn V. Lot of Jewelry V. Lotridge t/. Macomb u. Martin V. Masters V. McCarthy V. McGlue V. McKee V. McRae V. Mitchell 0. Moses u. Myers V. Nelson V. Neverson V. Noelke i;. Ogden V. Omeara V. Parker r. Peck V. Penn u. Porter V. Price V. Prout V. Ralston V. Rauscher V. Reiter V. Reyburn V. Reynes V. Reynolds V. Rodman V. Ross V. Sharp !). Simpson u. Six Lots of Ground V, Smith V. Spalding V. Sterland V. Stone V. Strother V. Sutter u. Teschmaker V. The Peggy 0. Tons of Coal 640 532 595 664 339 535 114, 289 369 1304 712 708, 719 395 640, 643, 1089 516 740 339 1240 623, 626 1165 833 177, 178, 180, 514 11 562 538, 540 452 776. 1205 536 120, 648 533, 603, 604 1120 633 559, 570 288, 1325 317, 338 259 782 928, 939, 1017 a 177, 254, 269 397 772 707 114 293 a 778 129 317 178 110, 319 1226, 1318 648 708 604 o 539, 540 623, 627 177 114 533 142 282 317 540 TABLE OP CASES. U. S. V. Turner 291 u. Un. Pac. R. R. 338, 980 a V. Vansiokle 562, 563, 565 .,. Wagner 319, 323 V. Walker 803 V. Watkins 549 V. Weed 1318 V. White 177, 180, 396, 514, 544, 556, 559, 562, 1206 V. Wiggins 110, 119, 319, 371 V. Willard 509 V. Wilson 397, 574 V. Wiltberger 464 V. Winchester 152 V. Wood 97, 177, 180 V'. S. Ex. Co. r. Anthony 510 U. S. Telegraph Co. t: Wenger 510 Usher v. Gaither , 1360 V. Pride 120 Ustioke V. Rawden 900 Utica Bank v. Hillard 742 Utioa Ins. Co. «. Badger 709 Utiey V. Merrick 397 Utterton v. Robins 890 Uxbridge v. Stareland 534 Vacher v. Cooks 262, 266 Vail V. Foster 1363 V. McKernau 114, 1353 V. Rice 964 i). Rinehart 822 V. strong 1138 Vaillant v. Dodemead 538, 580 Vaise v. Delaval 601 Valentine v. Piper 726, 727, 1347, 1349 Vallance v. Dewar 961, 963 Vallee v. Dumergue 803 Vallette v. Canal Co. 1022 Valpy V. Gibson 870 Vanauken's case 441, 451 Vanbiber v. Beirne 1248 Van Blaroom v. Kip 1157 Van Bokkelen v. Taylor 920 Van Brunt v. Day 1026 Van Buren v. Digges 920 V. Wells 21 Van Buskirk v. Day 931 V. Unlock 288 Vance v. Caldwell 683 V. Campbell 9 a. Kohlburg 108 V. Lowther 626, 627, 628, 629 V. Smith 1164 u. Vance 1220 Van Cort v. Van Cort 433 Van Cortlandt v. Tozer 111 Vandeubergh v. Spooner 871 Vanderoook v. Baker 1307 Vander Donckt v. Thelusson 306, 307, 308 Vandergrift v. Abbott 1026 Vanderkarr v. Thompson 1026 Vanderpoel a. Van Valkenbergh 811, 1278 Vanderveer, in re 396 Vandervoort v. Smith 110 Vanderwerker v. People 339 Van Deusen v. Young 446 Vandine v. Burpee 444, 446, 448 Van Donge v. Van Donge 1020 Van Doren v. Van Doren 726 Van Dasen v. Parley 1019 V. Worrall 1031 Van Duzen v. Allen 417 Van Dyke v. Bastedo 1162 Van Dyne v. Thayre 726 Vane case 404 Vane v. Vane 184, 1297 Vaneil v. Hagler 142 Van Eman v. Stanchfield 923 Van Gelder v. Van Gelder 466 Van Hook v. Man. Co. 661 Van Home v. Frick 61 Van Huss v. Raiubolt 574 Van Leuven «. First Nat. Bank 1180 Van Loon v. Davenport 909 Vanmeter v, McFaddin 863 Van Ness v. Fisher 450 V. Washington 920, 1019 Vanneter v. Crossman 265 Van Omeron v. Derrick 317, 671, 1302 Van Ostrand v. Reed 1066 Van Pelt o. Hutchinson 415, 985 Vanquelin v. Bouard 801 Van Rensselaer v. Aikin 838 V. Kearney 1039 V. Viokery 979, 1313 V. Witbeok 63 Van Sachs v. Kretz 11 64 Van Sandau v. Turner 324 Van Sickle v. Brown 283 V. People 716 Van Storch v. Griffin 52, 100 Van Straubenzee v. Monck 890 Van Studdiford v. Hazlett 1026 Van Swearingen v. Harris 688 Van Syokle v. Dalrymple 921, 927 Van Toll v. R. R. 1082 Van Trott v. Wiese 1017 Van Tuyl v. Van Tuyl 84 Van Valkenberg v. Bank 463 Van Vechten w. Griffiths 814 V. Hopkins 975 V. Smith 921 V. Terry 766 Van Vickie v. Gibson 201, 205 Van Wart v. Wolley 1184 Van Wyck v. Mcintosh 712, 713, 718 Varcias v. French 178 823 TABLE OF CASES. Vardeman v. Lawson Varick v. Briggs V. Edwarda Varner v. Nebleboro Varona v. Sooarraa Vary v. Shea Vason V. Beall Vasquelin v, Bouard 946 1165 769 1363 481 1019 22 801 Vassault v. Austin 828, 830, 834 V. Edwards 872, 873 V. Seitz 324 Vasser v. Vasser 1031 Vasseur v. Livingston 473 a Vastbiuder v. Metoalf 618 Vastine v. Wilding 1331 Vathir v. Zane 366 Vattier v. Hinde 732 Vaughan v. Hancock 863, 902 . Strickbein 781, 782 Vermont R. R. v. Hills 1050 Vernard v. Hudson 1070 Vernol v. Veruol 1314 Vernon v. Hills 1316 o o. Kirk 726, 1175 V. Manhattan Co. 673 V. Tucker 569 Verry v. Watkins 51, 1203 Verzau v. Mc®or 937 Vice V. Anson 155 Vicksburg, etc. R. R. v. Hedriok 412 V. O'Brien 265, 517, 1174 Vicksburg R. R. Co. v. Patton 256 V. Putnam 667 Vilas i;. Reynolds 677 Viles V. Moulton 151 Villa V. Rodriguez 1031 Villars v. Faune 779 Villeboisnet v. Tobin" 400 Ville du Havre 1264 824 Vimont v. Welch 1363 Vinal V. Burrill 1089, 1195 Vincennes, The 814 Vincent's Appeal 84 Vincent v. Bp. of Soder & Man 884 V. Cole 60, 61 I:. Eames 1302 V. Germond 875 V. State 399 V. Watson 389 Viner v. Baker 1336 Vining v. Baker 1331 Vinnicombe v. Butler 888, 1314 Vinton v. Johnson 1277 V. Peck 713, 718 Virg. & Tenn. R. R. .;. Sayres 1174, 1176 Vivian v. State 339 Vogt V. Ticknor 823, 1042 Volant V. Soyer 576, 585 Volney v. Barrett 801 Voltz V. Blackmar 259 Von Keller v. Sohulting 937, 939 Vooght V. Winch 765 Voorhees v. Bk. of U. S. 795 V. Dorr 142 Voorhies v. Eubank 835 Vose V. Dolau 624, 629, 632 u. Manly 96, 740 Vosler V. Brock 798 Voss V. Ins. Co. 1172 V. Price 417 Votan V. Diehl 21 Vowles V. Young 201, 202, 217, 218, 220 Vreeland v. Williams 993 Vrooman v. Ring 1165 VuUiamy v. Huskisson 210 W. Wabash Canal v. Reinhart 64, 988 Wabash R. R. i-. Hughes 295, 637 Wachsteller v. State 569 Waok V. Sorber 909 Waco Co. V. Shirley 444 Waddams v. Humphrey 427 Waddingham v. Loker 366, 1033 Waddington v. Bristow 866 V. Cousins 713 Wade's Succession 427, 429 Wade V. Carter 1044 V. Gallagher 599 V. Hardy 355, 474 V. Pelletier 1028 V. Percy 1050 V. Saunders 931, 1049 V. Simeon 393 V. State 18C , 398, 399 1). Thayer 569 TABLE OF CASES. Wade V. Wade 151 Walker v. Beauchamp 150, 214 Wadhams v. Gay 783 V. Bk. 624 V. Swan 1050 V. Blassingame 411, 1160 Wadley v. Bayliss 941 V. Boston 446 Wadsworth's Success. 1302 V. Broadstook 1156 Wadsworth v. Glynn 931a V. Camp 931a V. Hanshaw 581 V. Christian 1064 V. Harrison 265 V. Clay 1062 V. Heerraan 466 V. Collier 492 V. Marshall 379 V. Curtis 238 246, 248, 676 V. Rnggles 1129 i». Davis 1301 Wafford v. State 414 V. Doaue 828 V. Wyly 1118 V. Dunspaugh 500, 1199, Wager v. Chew 1019 1209 o. Schuyler 667 V. Elledge 1214 Wagers v. Dickey 1305 V. Fields 444 Waggermann v. Peters 686 V. Flint 1143 Wagner i/. Alton 733 V. Forbes 253, 305 v. Gragg 486 V. France 1017 a V. Robinson 468 V. Puller 779 Wagstaff V. Wilson 1187 V. Geiase 1060 Wahle V. Wahle 779 V. Hanks 1348 Wahrendorff v. Whittaker 702 V. Hill 466, 879 Wailes v. Neal 1175, 1183 V. Jessup 1304 Wails V. Bailey, 937 V. Moore 507 Wair V. Bailey 149, 220 V. Moors 565 Wait V. Fairbanks 961 V. Mussey 875, 877 V. Wait 1046 V. Pierce 1192 Waite «. Bingley 67 V. Richardson 860, 861 !). State 441 V. Sawyer 492 Wake V. Harrop 951 V. Sherman 1301 Wakefield v. Alton 640 V. Smith 366, 667 V. Bucoleuoh 1345 V. State 290, 510, 562 V. Grossman 1085 V. Stevenson 726 V. Ross 395, 396 V. Taylor 466 V. R. R. 1174, 1175, 118a, V. Turner 123 1182 V. Walker 314, 451, 507, 514, V. Stedman 1066 574, 908 Wakeman t;. West 670 V. Wells 953 Wakley v. Johnson 32 V. Wheatly 1017 Walbridge v. Ellsworth 624 V. Wildman 582, 583 Waloott V. Hall 53 V. Wingfleld 490, 656 V. Kimball 838 V. Witter 801 Waldale v. E. R. 265 Walkup V. Pratt 1199 Walden v. Bodley 783 Wall's case 1324 v. Finch 555 Wall «. Arrington 1021 V. Shelburne 620, 1134 u. Dorey 682 V. Skinner 1019 c. Williams 507 Waldman v. Crommelin 466 Wallace v. Agry 1363 Waldo V. Russell 726 V. Blair 900 Waldron v. Jacob 901 V. Bradshaw 73 V. Tattle 205, 1331 u. Burden 412 V. Waldron 998 V. Coil 980 Waldy V. Gray 134 V. Cook. 639 Walker's case 1157 V. Cravens 697 Walker, ex parte 382 V. First Parish 135 Walker ,.. Allen 339 V. Fletcher 1350 V. Ames 789 V. Goodall 444, 518, 689 V. Armstrong 294 V. Harris 1266 V. Bank 123 V. Hull 1289 V. Bartlett 864 V. Hussey 1021 TABLE OF CASES. Wallace u. Jewell u. Kelsall V. Loomia u. Pomfret V. R. R. V. Small V. Story V. Wallace u. Wilcox b, Wilson Wallen v. Forrest Waller v. Harris V. R. R. V. School District V. State Walling V. Rosevelt Wallis V. Beauchamp V. Britton V. Littell V. Mease V. Randall ./. White Wallize v. Wallize Wallridge v. Knipper 626 1064, 1207 1143, 1316 a 974 528, 529^ 1090 175 147, 529, 531 151 1064 490 980 a 263, 1174 142, 147 782 1197 106 429 927, 1026 32 1195, 1199 563 992, 993 277 Walls V. Bailey 961, 961 a, 963 V. McGee 625, 626, 627, 631, 645 Walmsley v. Child 149 Wain V. Phila. 641 Walnut V. Wade 290 Walpole V. Alexander 389 Walrath v. Ingles 877 o: Whittekind 972 Walrod v. Ball 265, 1284 Walsh's Will 723 Walsh V. Canal Co. 779 u. Dart 314 V. Dunkiu 805 V. Harris 64, 988 !i. Sayre 346 I). Trevanion 584 Walsingham v. Goodricke 581, 583 Walston V. White 1008 Walter v. Belding 987 V. Cubley 624 V. Engler 1014 V. Green 263 V. Haynes 1323 . Wegueliu 184 Wehle V. Spelman 1190 Wehrkamp i\ Willett 431, 562 Wehrly v. Morfort 788 Weidensaul v. Reynolds 986 Weidman «. Kohr 80, 120, 126, 1156, 1160, 1163 a Weidner w. Sohweigart 1336, 1362 Weigand v. Sichel 723 Weigel's Succession 492 Weight «. R. R. 1175 TABLE OF CASES. Weiler v. Hottenstein 921 Weinberg v. State 84, 85, 86 Weiner v. Heintz 982 Weingarten v. Pabst 466 Weinrich v. Porter 1164, 1165 Weinstein v. Patrick 489 Weinzorplin v. State 555 Weir V. Hill 856, 883, 904 Weisbrod v. Chicago R. R. Co. 640 Weisel v. Spence 879 Weisenberger v. Ins. Co. 932 Weiss V. R. R. 1255 Weissingen v. Bank 926 Welch V. Adams 888 n. Barrett 251 V. Jugendheimer 1246 V. Marvin 880 V. Phelps 786 u. Seaborn 1363 V. State 1269 V. Walker 830 V. Ware 21 Welcome v. Batchelder 523, 600 Weld V. Hornby 941 V. Nicholas 823 Welden v. Skinner 1058 Weldon v. Burch 540 Welfare v. Thompson 952 Welford v. Beezley 873 Welker V. Le Pelletier 1111 Welland v. Ld. Middleton 639 Welland Co. v. Hathaway 1094 Welles V. Battelle 644 V. Yates 1028 Wellington, The 1070 Wellington v. Gale 980 Wellman, in re 990 Wells V. Bransford 490 o. Burbank 120 V. Calnan 856 V. Drayton 1136 V. Fisher 421 V. Fletcher 421 V. Hatch 682 V. Horton 883 B. Jesus College 186, 188 V. Kelsey 528 V. Man. Co. 60, 499, 500 0. Mayn 864 V. Miller " 1060 V. Milwaukee 872 V. Moore 629, 781, 782 V. R. R. 1128 V. Shipp 175, 515, 819 V. State 115 V. Sterens 800 a f. Thompson 1026 V. Tucker 429 V. Turner 1193, 1194, 1199 «. Wells 572, 992 Welman, in re 290 Welsh V. Barrett 123, 238, 250, 654, a. Cochran 1318 V. Lindo 758 V. Louis 269 V. MandeviUe 797, 1207 V. Sykes 803 o. Usher 863 Welstead v. Levy 1163 Wemet v. Lime Co. 1362 1364 Wemple v. Knopf 927, 1067 u. Stewart 1019 Wemyss v. Hopkins 785 Wendell v. Abbott 115, 185 V. Bl an chard 1332 . R. R. 436,447* V. Ruoker 466 V. State 334, 1298 Whitmarsh v. Conway Ins. Co. 961 V. Walker 866, 867 Whitmore v. Bowman 450 !.'. Johnson 828 V. Learned 1050 Whitnash v. George 1212 Whitney v. Balkam 61 I.. Bayley 486 V. Boardman 961 V. Boston 447, 450, 559 V. Bunnell 714 V. Durkiu 261, 262 V. Ferris 1200 V. Gauche 340 V. Gross 43 a. Houghton 640, 1101, 1138 V. Janeville 53 «,■. Leominster 38 V. Lowell 920 V. Porter 767 V. R. R. 549 u. Sawyer 682 Whiton V. Ins. Co. 108, 114, 127, 317, 635, 638, 664, 665 V. Slayton 920 831 TABLE OF CASES. Whiton V. Snyder 259, 448, 1199 a V. Sprague 140 V. Thaoher 449, 674 V. Thomas 63 , V. Townsend 1032 V. Walsh 814 Whitridge v. Parkhurst 907 Whitsell V. R. R. 444 Whitsett V. Church 909 Whittaker, in re 467 Whittaker v. Edmunds 356 V. Garnett 1047 V. Jackson 765, 769, 779 Whittemore v. Weiss 510, 961 V. Wentworth 879 Whitter v. Latham 141 Whittier v. Dana 901, 902, 904 V. Franklin 41, 512, 1295 V. Gould 709 V. Wendell 803 Whitton V. State 1240 Whittuok V. Waters 653, 654 Whitwell u. Winslow 1163 a V. Wyer 1103 Whitworth v. R. R. 755 Whyman v. Garth 725 Whyte V. Arthur 1038 V. Rose 339, 795 Wiokenkamp v. Wickenhamp 129, 671 Wicker v. Hotchkiss 47 Wickersham v. Orr 970 V. Whedon 788 Wickes K. Adirondack Co. 1336 Wiokham v. Page 1260, 1309 V. Wickham 879 Widdow's Trusts 334, 1300 Wiebeler v. Ins. Co. 883 Wiener v. State 346 V. Whipple 1014 Wier V. Dougherty 936 Wiggin V. Goodwin 936, 1014, 1017 a. Plumer 571 V. R. R. 1103, 1127 V. Soammon 21 Wiggins V. Burkham 318, 339, 1136, 1140 V. Day 1204 V. Holley 515 V. Holly 515 V. Leonard 1170, 1200 V. Wallace 444 Wigglesworth v. Dallison 958, 959, 961, 969 Wight V. Wallbaum 982 Wightman v. Ins. Co. 1246 Wihen v. Law 653, 665 Wike V. Lightner 562, 563, 564, 565 Wikoff's Appeal 630, 890 Wilber v. Selden 180 Wilbur V. Flood 541, 667 832 Wilbur V. Selden 177, 178 V. Strickland 1166 Wilburn v. Hall 101 Wiloocks V. Phillips , 307 Wilcox V. Balger 782 V. Bates 1031 V. Hall 443, 1175 V. Hunt 9 V. Rome, etc. Railroad Co. 1255 V. Smith 1315 i;. I'odd 431 V. Waterman 1165 V. Wilcox 1321 V. Wood 961 a Wilcox Co. V. Green 876 Wilcoxen v. Bohanan 1183, 1324 Wilde V. Armsby 629 Wilder v. Franklin 1077 V. Holden 820 V. St. Paul 178 V. Welsh 389 Wildey v. Bonney 823 Wilds V. Blanohard 562 V. R. R. 361, 1294 Wiler V. Manly 1166 Wiles V. Harshaw 1014 a. Woodward 1083 Wiley V. Bean 726 o. Ewalt 931 .;. Moor 633 V. Pratt 796 V. Southerland 990 Wilgus V. Whitehead 1018, 1026 Wilhelm v. Cornell 820 Wilhelmi v. Leonard 529 Wilkerson v. Allen 129 Wilkes V. Ferris 875 Wilkins v. Anderson 825 V. Babbershal 556 V. Burton 872, 1127 V. Earle 1284 V. Malone 540 •f. Stephens 1037 V. Stidger 1138, 1184 ^. Vashbinder 970 Wilkinson v. Adam 998 V. Davis 559 V. Evans 872 V. Heaven rich 873 t>. Jewett 120 0. Kirby 779 V. Moseley 451, 452 t'. Pearson 451 t. Proud 1349 V. Scott 1042, 1044 V. Searcy 1144 Willan V. Willan 1021 Willard v. Buckingham 1170, 1173 V. Goodenough 565 V. Harvey 826 V. Sperry 788 TABLE OF CASES. Willard v. Whitney 826, 982 Williams v. Innes 1190 Willcox V. Jackson 466, 4736, 478 1/. Jarrot 269 Willerford, in re 890 b. Johnston 466 Willes V. Glover 1170 V. Jones 61 Wlllet V. Fister 404, 411 V. Judy 1163 a V. Malli 764 V. Kelsey 267, 521 Willeta V. Mandlebaum 194 iJ. Ketcham 866 Willett V. Porter 1009 V. Keyser 156, 739 V. Shephard 369 V. Lake 871 Willetts V. Mandlebaum 136, 703 V. Lee 451 Willey V. Hall 1022 V. Man. Co. 492 V. Hunter 473, 478 V. Manning 1127, 1196 V. Portsmouth 114, 392, 452 „. Miner 32 William & Mary College v. Powell 429 V. Morgan 188 William H. Northrop, The 338 u. Mudie 581 Williams's case 666 V. Paytou 923 Williams, ex parte 385 V. Power 927 Williams v. Allen 574 V. Preston 802, 803 V. Amroyd 814 V. Putnam 123 V. Ashton 630 V. Rawlins 690 V. Bacon 75 V. Reynolds 1119 V. Baker 741, 1052 V. Robbins 951, 1061 V. Baldwin , 429 V. Robinson 779 11. Barrett 466 V. R. R. 1316 a V. Bass 115 V. Soutter 509 u. Batchelder 788 B. Beasley 1136 V. Benton 152 V. Berry 795 0. Brickell 76, 1128 V. Brooks 444 V. Brown 446 V. Brummel 106 V. Byrnes 871 V. Canal Co. 120 V. Carpenter 953 u. Cheeseborough 990 V. Cheney 838, 1039 V, Christie 951 €/. Conger 194 V. Cowart 115 o. Davis 1183 V. Dewitt 510 V. Donaldson 935 V. Donell 1348 V. Drexel 713 u. E. India Co. 356, 1245 V. English 1101 V. Evans 875 I/. Eyton 824, 1303 u. Farrington 540 V. Fitch 29, 576 V. G eaves 230 V. Glenn 923, 1061 V. Griffin 740 V. Heales 1149 V. Heath 142 V. Hill 115 V. Hillegas 733 V. Hubbard 324 d. Huntermeister 1316 a VOL. II.— 53 .7. State 29, 84, 178, 262, 290, 338, 398, 422, 424, 441, 452, 712, 714, 1064, 1090 V. Sutton 773 V. Swetland 1039 V. Taunton 1192 V. Thorp 1090 V. Turner 123 V. Tyley 896 V. U. S. 826 V. Walker 550, 786 V. Waters 90, 133 V. Willard 180, 514 V. Williams 225, 452, 487, 882, 931, 973, 1093, 1180, 1220, 1297 ?;. Wilson 800 V. Woods 961, 977 V. Yongling 612 V. Young 589 Williamsburg Ins. Co. v. Froth- inghara 1212 Williamson v. Carroll 388 V. Dillon 175 V. Fox 1302 V. Freer 1128 V. Hall 879 u. Patterson 251 u. Peel 551 V. Simpson 1019 V. Wilkinson 1050 V. Williamson 1131, 1140 Williard v. Williard 903, 1160 Willingham v. Chick 1360 V. Mathews 389 833 TABLE OF OASES. Willingham v. Smith 468, 473 Wilson V. Powers 1017 a, 1062 Willink V. Canal Co. 766 V. Randall 947, 1015 Willis V. Bernard 225, 269 V. Eastall 578, 580, 59.7 V. Fernald 1026 V. Ray 782 y. Forrest 47 I'. Robertson 939 V. Hulbert 21, 939 V. R. R. 76 578, 580, 594, V. Jenkins 992 754 V. Kerr 1019 V. School 649 V. McNeill 609 K. Sewell 859 V. Quimby 512 V. Sheppard 422 V. Underbill 424 V. Sheriffbillick 1143 V. West 417 576, 584 t>. Sherlock 265 Williston 0. Williston/ 151 V. Sloan 1170 Willmering v. McGaughey 958 V. Spring 135, 1184, 1217 Willmet V. Harmer 1246 V. Sproul 51 Willot V. Fister 413 V. State 439, 491, 565, 1310 Willoughby v. Dewey 21 nnci nn-t V. Stewart 123, 320 u. Willoaghby 282, 331 Wills V. Brown 879 V. State 557 Willson V. Betts 708, 732, 733 Wilman v. Worrall 726 Wilmer v. Harris 1058 Wilmington v. Burlington 208 Wilson V. Allen 1352, 1353 V. Babb 1298 V. Bk. of Mt. Pleasant 795 V. -Beddard 889 V. Black 856 V. Bowden 1175 !;. Bowie 156 V. Carson 305 V. DeCoulson 610 I,. Deen 989 t. Derr 1064 V. Duer 1066 V. Dansany 801 v. Ford 1257 V. General 491, 573 V. Getty 1017 u. Giddings 1031 i;. Granby 268 V. Hentges 879 V. Hines 1090 ^. Hobbs 826 V. Hoecker 1019 V. Hoffman 668 V. Home 943 V. Lazier 289, 366 V. Lyon 863 u. Maddock 610 V. Martin 883 V. McClure 63 V. McCullough 602 V. McDowell 863 V. McKenna 697 V. McLean .515 V. Noonan 53 V. O'Leary 973, 995 V. Pattrick 1031 i-. People 441 834 V. Tucker 1062 V. Wagar , 530 V. Webber 490 V. Wilson 681, 956, 980, 988, 1337, 1350, 1357 V. Woodruff 1166 V. Young 561 Wilson Co. V. Mcintosh 779 Wilt V. Bird 61 V. Cutler 288 Wilter 0. Latham 147 Wilton V. Harwood 909 V. Webster 225 Wiltshire v. Sidford 1340 Wimberly v. Bryan 908 V. Hurst 982 Wimbush v. Breedeu 799 Winans v. Dunham 775 V. R. R. 436, 464, 972 V. Winans 357 Winants v. Sherman 620 Winch V. Norman 714 Winchell v. Edwards 1265 V. Latham 572 V. stiles 837 V. Winchell 551, 569 Winchester v. Charter 1165 V. Creary 1163 V. Whitney 1059, 1200 V. Winchester 123 Winchester Co. v. Funge 1142 Windell v. Hudson 879 Winder v. Diffenderffer 538 V. Little 201 Windsor v. McVeigh 795, 796, 803, 814, 818, 1234 Winebiddle v. Porterfield 47, 53 Winehart v. State 1240 Wing V. Abbott 142 V. Angrave 1281 V. Burgis 942 i>. Cooper 1031 V. Glick 1249 V. Goodman 431 TABLE OP CASES. Wing V. Sherrer 147 Wing Co. t . Moe 931 a Wingate v, Haywood 795 Winkley v. Kaime 1286, 1331, 1354 Winn V. Albert 912 V. Chamberliu 1015 V. Muirhead 1021 I. Patterson 72, 90, 129, 132, 135, 194 Winne v. Nickerson 678 Winnesheik Ins. Co. v. Holzgrafe 920 Winnipiseogee Co. v. Young 339, 1350 Winona i--. Burke 293, 339 V. Huflf 141 V. Thompson 921 Winooski v. Gokey 293 Winpenny v. Winpenny 792 Winsliip V. Conner 1274 V. Enfield 429 Winslow V. Driskell 1050 1/. Gilbreth 366 V. Grindal 769 V. Newlan 175, 555, 1196 Winson v. Dillaway 681 Winsor v. Clark 63 V. Dunford 95 Winstan v. Prevost 1357 Winston v. AfFalter 784 u. Cox 545 o. English 490 u. Gwathmey 733 V. Taylor 803 Winter v. Bandel 640 V. Bent 1175 V. Burt 527, 528 V. Newell 685, 760 V. Peterson 1339 V. Sass 399 0. Simonton 357 u. Stock 507 ,: U. S. 185 V. Walter 1216 V. Winter 433, 478 V. Wroot 225 Winterhottom v. Derby 1350 Wintermute v. Light 969, 1051 Winters ;;. Laird 107 V. R. R. 509 Wintle, in re 655 Winton v. Meeker 559 Wisconsin River Co. v. Walker 130 Wisden v. Wisden 378 Wise V. Beggar 980 a V. Charlton 1059 V. Neal 1044 V. Wyun 201, 208 Wiseman's case 1220 Wishart v. Willie 1341 Wistar's Appeal 366 Wistar v. Ollis 980 Wiswall V. Knevals 141 Withed V. Wood 466, 468 Withee v. Row 718 Wither's Appeal 903 Witherell v. Goss 833 Withers v. Livezey 980 V. Sims 786, 988 Witherspoon t>. Blewet 466, 474 Withington v. Warren 758 Withnell v. Gartham 188 Witt V. Klindworth 269 !>. Witt 268 Witzler v. Collins 1070 Wixom r. Stephens 782 Woburn u. Henshaw 77, 479, 576, 583, 584 Wohlfahrt v. Beokel 408 Wohlford V. Compton 784 Wolcott I). Ely 980 u. Heath 518, 680 V. Holcomb 357 V. Wolcott 810 Wolf V. Bollinger 895, 897, 900 V. Goulard 539 c. Foster 77 V. Ins. Co. 175, 1141, 1247 V. Pugh 1170, 1205 u. Studebaker 1077 V. Wyeth 180 Wolf borough v. Alton 517 Wolf Creek Diamond Co. o. Shultz 1108 Wolfe V. Hauver 549 V. Myers 1070 V. Washburn 1052 Wolflf V. Koppel 879 V. Oxholm 803 Wolfley V. Rising 950 Wolke V. Fleming 879 Wollaston v. Berkeley 1280 V. Hakewill 112 Wollenweber v. Ketterlinus 1127 WoUes V. Yates 1021 Wolstenholme v. Wolstenholme 1127 Wolverhampton New Waterw. Co. V. Hawksford 490 Wolverton v. State 84, 86, 87 Wolverton's Est. 999 Womack v. Dearman 97, 98 V. Womack 1124 Wonderly v. Booth 1199 V. Holmes Co. 1014 Wood, ex parte 290 Wood, in re 1258 Wood V. Ambler 519 V. Augustine 937 \ V. Beach 1048 V. Benson 902 V. Braddick 1198 V. Byington 771 V. Chapin 1043 V. Cheetham 427 V. Cooper 523, 524 835 TABLE OF CASES. 880 130 788 833 761 782, 786 319, 322 185 339 865 1363 964 510 781 910 357" 987 135, 563 575 550 870 389 346 1022 1044 781 21 466 466 259, 621, 629 1021 624, 632 1058 1318 1350 803 740 677, 1160 799 796 1063 936 616 712 1246 782 930, 1058 510 Woodbury v. Northy ^ 599 u. Obear 448, 452 V. Woodbury 466, 682 Woodbury Savings Bank v. Charter Oak Ins. Co. 1172 Woodcock t). Calais 836, 1118 c. Houlds worth 445, 1323 Woodford v. McClenahau 717 0. Whitely 149 Woodgate v. Fleet 793 V. KnatchbuU 833 Woodhead v. Foulds 1052 Woodhouse v. Fillibattes 797 836 Wood V. Corcoran V. Cullen V. Curl V. Deane V. Ensal V. Faut V. Fitz u. Foster 17. Fowler V. Goodridge V. Hardy II. Hickok V. Ins. Co. V. Jackson V. Jones V. Knapp V. Mansell u. Matthews V. McGruire V. MoKinsou V. Midgley V. Neale .,. Peel o. Perry V. Priestner V. Raymond V. R. R. u. Shurtleff V. Stafford V. State V. Steamboat V. Steele V. Surrells j;. Terry V. Veal V. Watkinson V. Weiant V. Williard V. Wilson V. Wood V. Young Woodall V. Greater Woodard's Will Woodard v. Spiller Woodbeck v. Keller Woodbridge v. Banning 0. Spoon er Woodburn v. Bank Woodhouse v. Simmons Woodin 0. Foster Woodman v. Dana u. Eastman V. R. R. Woodrow V. O'Connor Woodruff V. Bank V. Frost V. Garner V. MoHarry V. Thurlby V. Woodruff Woods V. Allen V. Banks V. Ege V. Gassett V. Gereoke V. Gummert r. Keyes V. Sawin V. State V. Wallace V. Woods V. Young Woodstock V. Hooker Woodward, in re Woodward v. Baker V. Cotton V. Easton 473 1058 714, 719 923 693 300 958, 959 920 931 1053 357 776, 783, 939, 1243 439 116, 693, 1175 670 151 1120 33 180, 514, 1109 943 177 1019 577, 998 983 308 630, 896 799 294 559 V. Foster 1058, 1059, 1143 V. Gates 611 V. R. R. 340 V. Roberts 697 Woodwell %i. Brown 1173 Woodworth v. Huntoon 1301 Woolf V. Chalker 1295 Woolfolk V. Bank 623 Woollam V. Hearn 1024 Woolley V. Bank 782 V. Newcastle 931 a V. R. R. 38, 576, 593 0. Turner 429 o. U. S. 778 Woolmer v. Devereux 742, 743, 751, 753 Woolray v. Rowe 1163 a Woolsey v. Rondout 1315 Woolverton, in re 996 Woolway v. Rowe 1094, 1160 Woonsocket v. Sherman 662 Wooster !>. Butler 185 Wooten V. Nail 1365 Wootley V. Gregory 861 Wootton V. Redd 996, 998 Worcester v. Northboro 38 Worcester Bk. v. Cheney 339 Worden v. Williams 1019 Workingman's Bk. v. Convers 292 Workman v. Greening 1031 u. Guthrie 909 TABLE OF CASES. Wormeley v. Com. Worrall v. Munn Worrell v. Gheen Worsley v. Fillisker Worth V. Grilling V. Worth Wortham v. Com. Wortheim v. Trust Co. Worthey v. Warner Worthing v. Worthing Worthington v. Scribner Wray v. Ho-ya-pa-nubby w. Steele V. Wray Wrege v. Westcott Wren v. Hoffman Wrestler v. Custer Wright V. Andrews V. Bales V. Barnard V. Beesman V. Boston V. Building Co. V. Butler V. Carillo V. Comb V. Curapsty u, Defrees v. Dekline V. Delafield V. Foster o. Goff V. Goodlake V. Graham c^. Hardy V. Hawkins V. Hessey V. Hicks V. Holdgate V. Ins. Co. V. Jackson V. Ld. Maidstone u. Maseras ' V. Mathews V. McKee V. McPike o. Mills v. Morse «. Murray V. Paige ». Phillips i;. Puckett V. Rogers V. Rudd V. Shroeder o. Smith V. Snowe V. Stavert V. Tatham 173, 451, 726, ■ V. Tukey 552 Wright V. U. S. 287 873 V. Vernon 754 632 V. Weeks 871 282 V. Wood 689 41, 1295 V. Woodgate 1262 909 V. Worsted Co. 942 781 V. Wright 357, 1254 377 Wrightsman o. Bowyer 1044 986 Wrintringhan*!;. Dibble 21 1165 Wroe V. State 529, 53e , 538 603, 604 Wyandotte v. Church 949 117 Wyatt V. Batemau . 178 1035 u. Gore 604 a 931, 1019 V. Harrison 1346 1090 V. Hertford 1066 1058 v. Scott 1354 1252 Wyche v. Clapp 799 288 V. Green 1019 9 Wyokoff V. Carr 1163 123 Wylder v. Crane 1119 466 Wylie V. Smitheran 140 1097 Wyman v. Fiske 935 800 Wymark's case 749 765 Wyndham's Divorce case 225 1156 Wynn v. Cox 920 1204 V. Garland 1088 178, 555 u. Harman 66 980 a Wynne v. Alexander 942 551, 775 t'. Aubuchon 63 314 V. Glidewell 1165 605 V. State 346, 444, 512 1022 V. Tyrwhitt 234 490 0. Whisenant 1044 824 452 287, 339 X. 713, 1165 555 Xenia Bk. v. Stewart 28, 262, 1170, 608, 1298 1173 1284 Xenos V. Wyckham 624 466 149 1138 Y. 492 47 Yahoola Co. v. Irby 175 , 1041 1019 Tale V. Oliver 151 990 Yarborough v. Beard 702 1058 V. Moss 175 841 Yardley's Estate 84 ,1297 562 Yardley v. Arnold 393 317 V. Culbertsou 452 309 Yarnell v. Anderson 357 888, 1314 Yates, ex parte 626 188 Yates V. Johnson 799 47 V. People 21 781, 1014 V. Pym 958 1145 V. Thomson 316 863 V. Yates 712, 714, 718 ,1156 175, 177, 185, Yawger v. Manning 837 729, 766, 1254 Yearsley's Appeal 683 1040 1 Yearwood's Trusts 837 1298 TABLE OF CASES. Yeates v. Briggs 786 Young V. Smith 1213 V. Yeates 1000 V. State 512 Yeaton v. Fry 320 V. Stevens 1023 Yeomaiis v. Williams 1017, 1018, 1145 V. Templeton 301 Yoe V. People 665 V. Thayer 102 Yoes V. State 412 V. Thompson 824 Yohn V. Ottennwa 512 V. Turing 1243 Yoho V. McGovern 772 V. Twigg 1002 York V. Peas 32, 500 V. Wood 549 York Bk. v. Carter 263 V. Wright 1184 York E. R. v. Winans 336 Young's Estate 1004 Yorke v. Browne 977 Younge v. Guilbeau 115, 740 !'. Smith 78 Younger v. Younger 884 Yost V. County 513 Youngs V. Cunningham 460 li. Devault 514 V. Youngs 539 Yoter V, Sauno 604 Youngstown v. Moore 1173 Youmans v. Carney 529 Youse V. Forman 895, 896 Youndt V. Youndt 139, 900 Yrisari v. Clement 323 Young 0. Austin 1058 V. Bank 464, 620, 1134 V. Bennett 53, 123, 528 Z. u. Buckingham 135 V. Catlett 517 Zabriskie v. Smith 269 V. Cawdrey 1121 Zacharie v. Franklin 696 V. Chandler 103 Zane v. Cawley 1029 V. Cole 298 Zantzinger v. Weightman 508, 509 V. Com. 265, 563, 740 Zarifi V. Thornton 490 V. Dake 854, 883 Zeigler v. Gray 1336, 1362 V. Dearborn 180, 514 V. Houtz ' 733 u. Edwards 1246, 1248 fy. King 837 u. Fonte 1088 y. Scott 487, 490 V. Frost 920 V. Zeigler 988 V. Fuller 986 Zemp V. R. R. 1082 I'. Gilman 430, 431 V. Wilmington 357 V. Grote 925 Zerbe v. Miller 357 u. Honner 710 II. Reigart, 466, 473 u. Jaooway 1015 Zerby v. Wilson 725 V. Lee 869 Zeringue v. White 507 V. Lynch 746 Zimmerman v. Lamb 1167 u. Mackall 141 V. Rote 626, 632 t. Makepeace 175, 441 V. Zimmerman 1009 V. Mason 574 Zitske V. Goldberg 176, 180 V. McGown 1022, 1028 Zoller V. Morse 366 V. Mertens 72 ZoUickoffer o. Turney 537 V. Murphy 52 Zook V. Simonson 1060 6 u. O'Neill 444 Zorn r. Lamar 782 V. Perkins 1101 Zouch V. Clay 632 V. Power 507 Zuchtman v. Roberts 1082 1143, 1150 ". Raincook 1039 Zngasti v. Lamer 331 u. Schuler 927, 1025 Zulietta v. Vinent 1149 V. Sellers 799 Zyohlinski ;■. Maltby 490 838 END OF VOL. II.